Eugene Volokh's Blog, page 34

[Eugene Volokh] First Amendment Precludes Video Game Addiction Claims

From Judge a decision Monday by Judge Brian Wimes (W.D. Mo.) in Courtright v. Epic Games, Inc.:

Carey Courtright … is the mother of K.C., a minor who was twelve years old at the time this suit was filed. Plaintiff alleges that video games are designed, marketed, and sold in a way that creates and sustains addiction in users….

The First Amendment to the United States Constitution limits the scope of tort liability by preventing recovery in cases where plaintiffs seek to hold defendants liable for protected conduct. See New York Times Co. v. Sullivan (1964) (holding the right to free speech is a defense to defamation); N.A.A.C.P. v. Claiborne Hardware Co. (1982) (holding the right to freely associate is a defense to conspiracy-based torts); Hustler Mag., Inc. v. Falwell (1988) (holding the right to free speech is a defense to intentional infliction of emotional distress); Snyder v. Phelps (2011) (holding the right to free speech is a defense to intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy)…. Speech … receives the same level of protection whether the speaker seeks financial profit or not.

"[V]ideo games qualify for First Amendment protection" because "[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)." Brown v. Ent. Merchants Ass'n (2011). The interactive or player-controlled elements of video games are as equally entitled to protection as the elements generated directly and exclusively by the games' developers. Where a plaintiff seeks to hold a video game developer liable for the content of their products, strict scrutiny applies.

Here, Plaintiff argues her claims target non-expressive conduct, and she does not seek to hold Defendants liable for any content. In support of her argument, Plaintiff cites In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig. (N.D. Cal. 2023), in which the district court drew a distinction between alleged defects that do and do not receive First Amendment protections in the context of social media. The district court held that First Amendment protections do not apply when addressing alleged defects "would not require that defendants change how or what speech they disseminate" or when defects qualify as "tools" to create speech but are not themselves speech. Plaintiff argues this case is akin to In re Social Media. The Court disagrees.

Notably, in In re Social Media the defendants operated social media platforms, which provide a forum for speech and sometimes "create expressive products," but do not themselves qualify wholesale as speech. Moody v. NetChoice, LLC (2024) (explaining social-media platforms "in at least some situations"—but not all—"include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression."). Here, the Developer Defendants create video games, which are entitled to First Amendment protection as a whole, not in a piecemeal manner like social media platforms. Therefore, this case is distinguishable, and the likelihood that speech would be directly affected is higher in this case—though not unequivocal.

Plaintiff's argument that this case is about conduct not content is unpersuasive. Plaintiff alleges the Developer Defendants' video games are defective because they have addictive features. Plaintiff indiscriminately attributes the following allegedly addictive features to all Defendants and all products:

[29.] [Defendants] intentionally design their Products to be addictive by incorporating and utilizing traditional game theory tactics, operant conditioning (e.g., dark patterns, skinner boxes, feedback loops, rubber-banding), artificial intelligence, and reward systems, along with patented designs containing addictive features, systems, mechanisms, and shared technology, in their video gaming product designs to ensure consumers continue to use and engage in "microtransaction" spending within the [Defendants'] Products….

[135.] The [Defendants] utilize many strategies to enhance and exploit the already predatory monetization tactics incorporated into the Products. Such strategies include: (a) The "near miss": convincing players via exciting animation, for instance, that they were very close to winning; (b) "Chasing": encouraging players to keep playing to get back any money they just lost; (c) "Fear of missing out": suggesting that a special prize is only available for a short amount of time and must be obtained within the small window; (d) "Exclusivity": suggesting that only a small number of a special prize are available so it must be obtained immediately; (e) "Entrapment": convincing players they are about to win, or they have invested enough to win, but if they stop playing they will miss out on the win; and (f) The "sunk cost effect": justifying continued expenditures in the game because of the amount a player has already spent.

The alleged defects that Plaintiff identifies in her amended complaint are all elements of the video games at issue. Plaintiff's claims, in essence, seek to hold the Developer Defendants liable because their video games are made too entertaining by these "defective" elements. This is content-based liability that is not permitted. Sorrell v. IMS Health Inc. (2011) (holding protected speech cannot be quieted or burdened simply because it is too persuasive).

Plaintiff further argues the amended complaint targets conduct, not content, because the remedial measures required would not implicate the First Amendment. Plaintiff asserts that to address the defects in the Developer Defendants' video games she seeks "adequate warnings about the risks of [Defendants'] products, safer features such as time limits and increased parental controls, and for Defendants to eliminate their addictive features." Plaintiff argues this would not require any change to content, so the Developer Defendants' free speech rights are not implicated. This argument is also unpersuasive.

First, the allegedly defective features, as pled by Plaintiff in this case, are properly considered video game content; they are elements and features of video games. Requiring the Developer Defendants to remove these allegedly addictive features would force them to change the content of the games to make them less enticing or enjoyable for users.

Second, Plaintiff's argument for parental controls and other safety tools is an attempt to recharacterize the allegations in her amended complaint. Plaintiff references parental controls just six times in an amended complaint that is 260 pages. And those mentions are not in the context of describing defects in the video games. When Plaintiff's amended complaint discusses product defects, it focuses on design choices that make the video games addictive, like "microtransactions" and "pay-to-win" elements. Plaintiff also fails to explain what parental controls presently exist in Defendants' products and how they are defective. Therefore, the Court rejects Plaintiff's arguments about parental controls

Third, requiring the Developer Defendants to give "adequate warnings about the risks of [their] products" would unconstitutionally force them to warn of potential effects of viewing protected expressive content. A mandate of this kind would violate the Developer Defendants' constitutional free speech rights.

Plaintiff acknowledges there is a long history of courts rejecting failure-to-warn claims where plaintiffs seek to hold defendants liable for failing to warn of dangerous ideas or content contained in protected speech. Plaintiff argues this case is distinguishable from those cases, but the distinction Plaintiff attempts to draw is illusory. Plaintiff argues she seeks warnings about "dangerous product designs," not warnings about "dangerous ideas or content." However, Plaintiff's amended complaint alleges the content of video games causes addiction; any warning about a risk of harm from playing video games would be warning about the content. The fact that Plaintiff alleges the video games are designed to create addiction does not transform the conclusion that any warning would ultimately be content-based. This type of claim is therefore covered by the First Amendment and subject to strict scrutiny analysis.

It is evident on the face of the complaint that Plaintiff's claims against the Developer Defendants fail the strict scrutiny test. Plaintiff has an interest in receiving compensation for alleged harms and in preventing video game addiction in children. Preventing future addiction in children is compelling, yet the changes that are requested would apply to all users of the games and is therefore not narrowly tailored for children.

Additionally, the features Plaintiff identifies as addictive, stated generally as "the innovative video game monetization inventions and ideas intended to lure and addict users," is a very broad category of content that may be addictive for some individuals but not others. To prohibit such a broad category of video game features would strongly stifle development as game developers would fear that any new game feature that users find attractive could result in significant financial liability. The chilling effect on protected expression would be broad, even for minors. Erznoznik v. City of Jacksonville (1975) ("[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them."); Watters v. TSR, Inc. (W.D. Ky. 1989), aff'd (6th Cir. 1990) (prohibiting liability based on the content of the game "Dungeons and Dragons"); Sanders v. Acclaim Ent., Inc. (D. Colo. 2002) (finding tort liability based on the content of video games is not narrowly tailored to serve the interest of protecting minors).

In the end, "speech cannot be restricted simply because it is upsetting or arouses contempt," or where its content causes significant emotional distress. Here, all of Plaintiff's claims run afoul of the First Amendment. The theories of liability brought against the Developer Defendants would have powerful chilling effects and are far from narrowly tailored. Plaintiff's claims, as alleged, are barred on the face of the complaint, and the Developer Defendants' motion is therefore granted….

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[Eugene Volokh] Court Rejects Oklahoma Education Department's Lawsuit Over Letters from Advocacy Group

["How do Defendant's letters interfere with Plaintiffs' authority or ability to administer Oklahoma's public schools?"]

From Judge John F. Heil III (E.D. Okla.) yesterday in Okla. State Dep't of Ed. v. Freedom From Religion Found.:

On March 31, 2025, Plaintiffs filed their Complaint seeking both declaratory and injunctive relief from this Court. Specifically, the Complaint alleges that Defendant "has interfered with and will continue to interfere with [Plaintiffs'] statutory authority to govern Oklahoma's public schools." Plaintiffs urge that both declaratory and injunctive relief are necessary "to ensure that [Plaintiffs] can faithfully execute their duties, as well as protect the constitutional rights of Oklahoma's public school students." …

On December 17, 2024, Defendant, a nonprofit advocacy group, sent a letter to Achille Public Schools ("APS") Superintendent Rick Beene ("Superintendent Beene") regarding "unconstitutional school-sponsored prayer and [B]ible readings." Specifically, the letter stated that "[a] concerned parent report[ed] that [APS] implemented a policy allowing teachers to read Bible verses at the beginning of their classes" and, further, that APS "has a custom and practice of beginning each school day with a 'mandatory student-led prayer' over the schools' intercom systems."

The letter requested that APS "cease permitting teachers to give students Bible lessons" and "ensure its schools refrain from coercing students to observe and participate in school-sponsored prayer." The letter set forth the legal basis for its assertion that school-sponsored prayer and Bible readings are unconstitutional. The letter concluded with a request that Superintendent Beene "respond in writing with the steps [APS] is taking to address" the complaint so that Defendant may inform the concerned parent.

Separately, on February 7, 2018, Defendant sent a letter to Putnam City Schools ("PCS") Superintendent Fred Rhodes ("Superintendent Rhodes") regarding a complaint from a "concerned area resident" regarding a designated "team chaplain" for the Putnam City High School football team. Specifically, the letter detailed concerns that the team chaplain was leading the team in prayers and proselytizing to the players. The letter set forth the legal basis for its assertion that school-sponsored prayer and the advancement or promotion of religion by a public school through a team chaplain are unconstitutional. The letter asked PCS to "commence an immediate investigation into this complaint and take action to stop coaches and other school representatives from organizing, leading, or participating in prayers with student athletes at practices or games" and to "take appropriate actions to end its chaplaincy program." The letter further requested that Superintendent Rhodes respond in writing with the steps taken to remedy the complaint….

Defendant argues that the Complaint is insufficient on its face to demonstrate an injury in fact [and thus to establish Plaintiffs' standing]. To establish an injury in fact, Plaintiffs must show that they suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." A "particularized" injury means that it "must affect the plaintiff in a personal and individual way." For an injury to be "concrete," it "must actually exist" and be real. Further, a "threatened injury must be certainly impending to constitute injury in fact."

The Complaint alleges that Defendant "has interfered with and will continue to interfere with [Plaintiffs'] statutory authority to govern Oklahoma's public schools" and further argues that "[d]eclaratory and injunctive relief is both necessary and proper to ensure that [Plaintiffs] can faithfully execute their duties, as well as protect the constitutional rights of Oklahoma's public school students." Plaintiffs clarify in their response that they have been injured because Defendant has infringed on their "statutory and constitutional authority to administer the public school system."

However, this bare assertion is neither concrete nor particularized. How do Defendant's letters interfere with Plaintiffs' authority or ability to administer Oklahoma's public schools? In what way are Plaintiffs precluded from administering Oklahoma's public schools because of Defendant's letters? What have Plaintiffs intended to do, but have been unable to, because of Defendant's letters? The Complaint does not answer these questions. Plaintiffs have not alleged that they have suffered some actual or threatened injury. Plaintiffs' generalized statement of injury is nothing more than conjecture.

Further, Plaintiffs acknowledge that "[w]hen school districts are accused of violating either the Oklahoma Constitution or the policies and procedures implemented by the OSDE, it is the OSDE's responsibility to address those accusations, make findings of fact and conclusions of law, and implement any necessary corrective measures." In essence, Plaintiffs concede that addressing the types of letters it complains of in this lawsuit is part of Plaintiffs' duties. Yet, Plaintiffs say that they are harmed because "[e]ach time a district receives a cease-and-desist demand from [Defendant], OSDE must expend valuable time and resources to address it." Both things cannot be true. Plaintiffs cannot be both performing their duties by addressing the letters and impeded from performing their duties by addressing the letters.

The Court also notes that while Plaintiffs complain of "Defendant's continued interference with the day-to-day-operations … of Oklahoma's public schools … ," Plaintiffs only complain of two (2) letters sent by Defendant to two (2) Oklahoma public schools in the past seven (7) years. Again, the Complaint does not explain how these letters have interfered with day-to-day operations in any real way. Indeed, it appears that upon receiving these letters, the recipient schools simply forwarded the letters to OSDE for guidance, which, as discussed earlier, appears to be within the scope of Plaintiffs' duties.

Plaintiffs' Complaint also vaguely alludes that Plaintiffs' injury is the "chilling effect" caused by Defendant's letters…. [But the precedents Plaintiffs cite] considered the chilling effect on nonprofit advocacy groups based on government action. Here, Plaintiffs ask the Court to consider the chilling effect on the government based on a nonprofit advocacy group's action. The Court finds that the [precedents] are plainly distinguishable, and, following, the framework [they] set forth … is inapplicable in this case.

However, even if it did apply, Plaintiffs have failed to sufficiently demonstrate standing under the framework. {"[P]laintiffs in a suit for prospective relief based on a 'chilling effect' on speech can satisfy the requirement that their claim of injury be 'concrete and particularized' by (1) evidence that in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced."} …

[T]he Complaint does not allege that it has stopped executing its duties or ceased administration of Oklahoma's public schools because of Defendant's letters. {Notably, despite Defendant's letters, the Complaint states that "[t]hroughout his tenu[r]e in office, Superintendent Walters has actively sought to address the dismantling of faith and family values in public schools …," including announcing a "directive to provide Bibles 'explicitly for use in schools'" and establishing the "'Office of Religious Liberty and Patriotism' at the State Department of Education." This runs contrary to the assertion that the letters had any sort of a "chilling effect."} …

Nor does the Complaint allege that the schools have ceased any policies or practices because of Defendant's letters. {The Complaint alleges that, contrary to the accusations in Defendant's letters, the schools are acting lawfully. For example, while the letter to APS accused the school of beginning each school day with "mandatory student-led prayer," Plaintiffs state that APS actually provides "daily student-led morning announcements which include a statutorily required moment of reflection." If the letters inaccurately described the schools' conduct, it seems that the easiest course of action would have been to respond explaining the misunderstanding, or to simply take no action at all.}

{Notably, despite Defendant's letters, the Complaint states that "[t]hroughout his tenu[r]e in office, Superintendent Walters has actively sought to address the dismantling of faith and family values in public schools …," including announcing a "directive to provide Bibles 'explicitly for use in schools'" and establishing the "'Office of Religious Liberty and Patriotism' at the State Department of Education." This runs contrary to the assertion that the letters had any sort of a "chilling effect."} …

Adam Hines and Megan Lambert (ACLU of Oklahoma) and Ben Wizner, Scarlet Kim, and Vera Eidelman (ACLU Foundation-NY) represent Freedom From Religion Foundation.

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[Eugene Volokh] Sanctions for Another Lawyer Filing AI-Hallucinated Material …

[for "citing to fabricated, AI-generated cases without verifying the accuracy, or even the existence, of the cases" and "misrepresenting to the Court the origin of the AI-generated cases."]

From Nora v. M & A Transport, Inc., decided yesterday by Judge Susie Morgan (E.D. La.):

On June 30, 2025, Ms. Hamilton, on behalf of Plaintiff, signed and filed a Motion to Transfer Venue. On July 8, 2025, Defendants M & A Transport, LLS Leasing, Linda Stivason, and Mike Stivason (collectively, "Defendants") filed an opposition to Plaintiff's Motion to Transfer Venue. In this opposition, Defendants identified what they referred to as three "suspicious" citations.

The first of these "suspicious" citations is Ms. Hamilton's citation to Gallagher v. Wilton Enterprises, Inc., 962 F. Supp. 1162 (E.D. Pa. 1997). Ms. Hamilton cited Gallagher as a case in which "the Eastern District of Pennsylvania transferred a case filed in the wrong district rather than dismissing it, applying principles of equitable tolling and observing that transfer avoids harsh outcomes based on technical filing errors." The citation "962 F. Supp. 1162" corresponds to Kenro, Inc. v. Fax Daily, Inc. rather than Gallagher. Although Gallagher v. Wilton Enterprises, Inc. is the name of a reported opinion issued by the United States Court of Appeals for the First Circuit, neither Gallagher nor Kenro discuss venue transfer or equitable tolling.

Second, Ms. Hamilton cited Mader v. Advanced Neuromodulation Sys., Inc., 2005 WL 1863181 (E.D. La. Aug. 3, 2005) as a case in which "this Court granted a transfer where venue was technically improper but the claim was timely filed, reasoning that dismissal would unfairly prejudice the plaintiff." The Court's research does not reveal any cases bearing the name Mader v. Advanced Neuromodulation Sys., Inc. The citation "2005 WL 1863181" is for In re Yacavino, which is a New Jersey Supreme Court case on an attorney disciplinary matter.

Third, Ms. Hamilton cited Krapf v. St. Luke's Hosp., 4 A.3d 642 (Pa. Super. Ct. 2010) for the proposition that "Courts favor transferring such cases rather than dismissing them when doing so serves the interest of justice and avoids prejudice." Krapf, a real case, does not address transfer of venue. …

[In a later filing,] Ms. Hamilton "acknowledge[d] the cited authorities were inaccurate and mistakenly verified using Westlaw Precision, an AI-assisted research tool, rather than Westlaw's standalone legal database." Ms. Hamilton further wrote that she "now understands that Westlaw Precision incorporates AI-assisted research, which can generate fictitious legal authority if not independently verified."

On July 21, 2025, the Court ordered Plaintiff's counsel to "provide the Court with the AI-assisted research history that resulted in the three citations at issue in the Motion to Transfer." On July 22, 2025, Ms. Hamilton filed a response to the Court's July 21, 2025 order and attached her research history but, by her own admission, the research history does not include the incorrect citations. In her response, Ms. Hamilton admitted that "[w]hile [the attached research] reflects research [that Ms. Hamilton] personally conducted in connection with this matter, it does not include the inaccurate citations at issue" because "[t]he Motion to Transfer (Doc. 24) was initially prepared as a collaboration" and "the authorities in question were sent in an e-mail from another attorney in the firm."

On July 22, 2025, after Ms. Hamilton filed her response to the Court's July 21, 2025 order, the Court ordered Plaintiff's counsel to "provide to the Court for in camera review the AI-assisted research history performed by the lawyer who did the research." Ms. Hamilton testified she was unable to provide the Court with this research history because the lawyer who produced the AI-generated citations is currently suspended from the practice of law in Louisiana. Ms. Hamilton did produce for the Court's in camera review an email in which the now suspended lawyer sent Ms. Hamilton the AI-generated citations.

On July 24, 2025, the Court held oral argument on Plaintiff's Motion to Transfer Venue and Defendants' Motion to Dismiss Due to Improper Venue. At the oral argument, Ms. Hamilton made an appearance for Plaintiff. After argument, the Court placed Ms. Hamilton under oath and questioned her regarding her usage of AI-assisted research. The Court asked Ms. Hamilton to explain the basis for her representation that Westlaw generated the fabricated citations. Ms. Hamilton stated that she "assumed" Westlaw was the origin of the fabricated citations because she does all of her research on Westlaw. Ms. Hamilton agreed that Westlaw did not generate the fabricated citations. Ms. Hamilton confirmed that, at the time she filed the reply memorandum in support of Plaintiff's Motion to Transfer Venue, she did not review her Westlaw research history to verify that Westlaw generated the fabricated citations….

The Court finds Ms. Hamilton's conduct is in violation of Rules 11(b)(2) & (3). In determining whether an attorney has complied with Rule 11, the court applies "an objective, not subjective, standard of reasonableness." "[T]he central purpose of Rule 11 is to deter baseless filings in district court and … streamline the administration and procedure of the federal courts." "At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely."

Ms. Hamilton, who signed and filed Plaintiff's Motion to Transfer Venue, did not verify that several of the legal contentions in the Motion to Transfer Venue were warranted by existing law. Ms. Hamilton violated Rule 11(b)(2) by citing to fabricated, AI-generated cases without verifying the accuracy, or even the existence, of the cases. Furthermore, Ms. Hamilton violated Rule 11(b)(3) by misrepresenting to the Court the origin of the AI-generated cases in her reply memorandum in support of Plaintiff's Motion to Transfer Venue. Ms. Hamilton admitted to these violations of Rules 11(b)(2) & (3) at her show cause hearing on August 4, 2025.

The court ordered that Ms. Hamilton pay $1000 in sanctions ("This amount must be paid by Ms. Hamilton personally, and may not be paid for by her law firm or the Plaintiff"), that she "attend 1 hour of Continuing Legal Education on the topic of Generative A.I.," and that she be "REFERRED to the Disciplinary Committee of the United States District Court for the Eastern District of Louisiana in accordance with the Eastern District's Rules for Lawyer Disciplinary Enforcement."

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[Eugene Volokh] Burning the Midnight Oil in the Northern District of Texas

["[A] little sleep, a little slumber, a little folding of the hands to rest, and poverty will come upon you like a robber, and want like an armed man."]

From Judge Brantley Starr (N.D. Tex.) yesterday in Richards v. X Corp.:

[Richards'] main argument [in his motion for reconsideration] hinges on the idea that the Court ceases work at 5:00 PM. Richards filed his second reply in support of his request for a temporary restraining order at 8:45 PM on August 5, 2025, and the Court's order, dated August 5, 2025, was docketed around noon on August 6, 2025. Richards insists this means the Court did not properly consider his second reply but had its outcome predetermined.

While the Court appreciates Richards's vision of confining the workday to an agreeable nine-to-five schedule, that is not the reality for the hard workers of the Northern District of Texas. Just as Richards himself filed his reply in the evening, so the Court was hard at work in the waning hours of the day—hence the order's next-day docket entry. {After all, "a little sleep, a little slumber, a little folding of the hands to rest, and poverty will come upon you like a robber, and want like an armed man." Proverbs 6:10–11.} And regardless, Richards is not entitled to multiple reply briefs. {See. Local Rule 7.1(f) ("Unless otherwise directed by the presiding judge, a party who has filed an opposed motion may file a reply brief within 14 days from the date the response is filed." (emphasis added)).} Therefore, the Court DENIES Richards's motion for reconsideration.

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[Jonathan H. Adler] Are Students Engaged in Performative Virtue Signaling?

[Interesting results from a survey of undergraduates at two universities]

Northwestern University researchers Forest Romm and Kevin Waldman report in an op-ed on the results of a series of interviews they conducted with undergraduates.

Between 2023 and 2025, we conducted 1,452 confidential interviews with undergraduates at Northwestern University and the University of Michigan. We were not studying politics — we were studying development. Our question was clinical, not political: "What happens to identity formation when belief is replaced by adherence to orthodoxy?"

We asked: Have you ever pretended to hold more progressive views than you truly endorse to succeed socially or academically? An astounding 88 percent said yes.

These students were not cynical, but adaptive. In a campus environment where grades, leadership, and peer belonging often hinge on fluency in performative morality, young adults quickly learn to rehearse what is safe.

The result is not conviction but compliance. And beneath that compliance, something vital is lost.

Interview respondents noted the effect across a range of issues:

Seventy-eight percent of students told us they self-censor on their beliefs surrounding gender identity; 72 percent on politics; 68 percent on family values. More than 80 percent said they had submitted classwork that misrepresented their views in order to align with professors. For many, this has become second nature — an instinct for academic and professional self-preservation.

The authors' research suggests that on some issues, such as the nature of gender and gender identity, students' actual beliefs are quite different from what appears to be the prevailing orthodoxy on campus.

They write further:

Authenticity, once considered a psychological good, has become a social liability. And this fragmentation doesn't end at the classroom door. Seventy-three percent of students reported mistrust in conversations about these values with close friends. Nearly half said they routinely conceal beliefs in intimate relationships for fear of ideological fallout. This is not simply peer pressure — it is identity regulation at scale, and it is being institutionalized.

Universities often justify these dynamics in the name of inclusion. But inclusion that demands dishonesty is not ensuring psychological safety — it is sanctioning self-abandonment. In attempting to engineer moral unity, higher education has mistaken consensus for growth and compliance for care.

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[Jonathan H. Adler] Does the Congressional Review Act Bar the FCC's Data Breach Reporting Rule?

[The Sixth Circuit wrestles with what it means for a regulation to be "substantially the same" as one disapproved by Congress.]

Under the Congressional Review Act (CRA), Congress may pass resolutions of disapproval of agency regulations which have the effect of repealing the disapproved regulation and preventing the agency from re-promulgating another rule that is "substantially the same" as that which was disapproved, unless and until expressly authorized by Congress. In effect, a resolution of disapproval not only repeals a rule, it also effectively repeals the agency's underlying statutory authority to issue such a rule.

Up until now, the scope of this bar on agency action has not been tested. Today, however, in Ohio Telecom Association v. Federal Communications Commission, the U.S. Court of Appeals for the Sixth Circuit split over whether the passage of a CRA resolution disapproving the FCC's 2016 privacy rule, which contained regulations concerning the reporting of data breaches, barred the FCC from adopting its 2024 Data Breach Reporting Rule.

According to Judge Stranch, joined by Judge Mathis, the 2024 rule was not "substantially the same" as the 2016 rule, because it only addressed one of the subjects contained in the 2016 rule. According to Judge Griffin, in dissent, the 2024 rule is so close to the relevant portions of the 2016 rule that it is barred. (Judge Griffin further argued that the FCC lacked the statutory authority to issue the 2024 rule.)

For myself, I believe Judge Griffin has the better of the argument, and is more consistent with a proper understanding of the CRA's text and operation. If Congress disapproves a rule that consists of A+B+C+D, the best reading of the CRA is that the agency cannot repromulgate A, B, C, D, or any combination thereof, without Congressional approval. According to Judge Stranch, however, an agency would remain free to promulgate each part of the disapproved rule seriatim, and that would be fine. An implication of her interpretation would also be that if Congress repeals rule A, an agency could repromulgate A so long as it folds it into another rule. Such an interpretation of the CRA is neither compelled by the statute's text, nor is it consistent with the statute's structure and design.

Excerpts from the respective opinions are after the jump.

From Judge Stranch's majority opinion:

The CRA, incorporating the APA, defines the term "rule" as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." 5 U.S.C. §§ 551(4), 804(3). The definition makes clear that a rule can constitute either the "whole" or "a part" of an agency statement, depending on the applicable context. Section 801, in turn, provides that an agency may not issue "a new rule that is substantially the same" as "[a] rule that does not take effect (or does not continue)" because of the enactment of "a joint resolution of disapproval . . . of the rule." Id. § 801(b). Thus, for purposes of determining whether a new rule is substantially the same as a disapproved-of prior rule, the prior rule is to be construed based on the language chosen by Congress for the applicable disapproval resolution.

Using the CRA's mandatory fill-in-the-blank format, id. § 802(a), Congress passed a resolution stating: "Congress disapproves the rule submitted by the Federal Communications Commission relating to 'Protecting the Privacy of Customers of Broadband and Other Telecommunications Services' (81 Fed. Reg. 87274 (December 2, 2016)), and such rule shall have no force or effect." 131 Stat. at 88 (emphases added). By the resolution's terms, "the rule" that Congress rejected and rendered inoperable was the entire 2016 Order—Congress disapproved of the 2016 Order as a "whole." 5 U.S.C. § 551(4). Thus, the proper comparison is between the 2024 Order and the entire 2016 Order.

Petitioners argue that the phrase "rule that does not take effect (or does not continue)" refers not "to the rule specified in the joint resolution of disapproval," but rather, to any constituent part of the broader rule that has been nullified by the applicable disapproval resolution. Petitioners' Br. 48-51 (quotation omitted); see Dissenting Op. at 41 (agreeing with Petitioners' construction). That reading contravenes the text of the CRA. Section 801(b)(2)'s reference to "a rule that does not take effect (or does not continue)" refers back to § 801(b)(1), which provides that "[a] rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval, described under section 802, of the rule." 5 U.S.C. § 801(b)(1) (emphasis added). The "rule that does not take effect (or does not continue)" is, by the Act's express terms, the rule identified in the disapproval resolution pursuant to the procedures delineated in § 802.

It is true that when Congress disapproved the 2016 Order, it nullified every constituent rule contained therein. That conclusion is plainly required by the CRA's mandate that "[a] rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval . . . of the rule." Id. It is also true that the disapproval resolution limited the FCC's statutory authority going forward by proscribing it from promulgating a new rule "substantially the same" as the rejected rule. But to determine whether a new rule is "substantially the same" as a prior rule, the CRA makes clear that the prior rule should be construed as the rule identified in the disapproval resolution. If Congress intended to prohibit an agency from issuing a new rule that is substantially the same as any part of a prior rule nullified by a disapproval resolution, it could have said so. That is not the language it chose.

Petitioners prognosticate that this construction would make a disapproval resolution "easy to circumvent" by reissuance of "any of the individual parts of [a] disapproved rule." Petitioners' Br. 54; see Dissenting Op. at 41-42 (similarly arguing that our construction would allow agencies to "easily circumvent" congressional disapprovals). Such a prediction does not overcome the Act's plain text. Even if it were material to our disposition, it is unfounded. Congress can resolve this concern by passing resolutions with specific language. The CRA gives Congress ample opportunity to identify specific rules in its disapproval resolutions. See 5 U.S.C. § 802(a). As the FCC notes, moreover, Petitioners offer a far more anomalous construction of the CRA. Under their view of the Act, the FCC would be prohibited from promulgating an entire compendium of rules contained within the 2016 Order, or any other disapproved-of omnibus order. Such a prohibition could encompass the narrowest, most anodyne "agency statement[s] of general or particular applicability and future effect," including functional provisions such as definitions. Id. § 551(4). We cannot accept this atextual and anomalous construction of the CRA.

Accordingly, under the CRA's plain text, we must compare the 2024 Order to the entire 2016 Order and determine whether they are substantially the same. Id. § 801(b). The term "substantially" means "[f]ully, amply; to a great extent or degree; considerably, significantly, much." Substantially, Oxford English Dictionary (2012 ed. Oxford Univ. Press). The 2024 Order is far from "fully," "considerably," or "significantly" the same as the 2016 Order. The 2016 Order was far more expansive, imposing a broad array of privacy rules on broadband Internet access services. The data breach notification requirements were a mere subset of the broader compendium of privacy rules in that Order. The 2024 Order, by contrast, addresses only data breach reporting requirements. The two rules are not substantially the same.

Finally, even if we were to adopt Petitioners' construction and directly compare the 2016 reporting requirements with the 2024 reporting requirements, we still would conclude that the two rules are not substantially the same. There are notable differences between the two sets of reporting requirements. For example, unlike the 2016 Order, the 2024 Order extends its reporting requirements to TRS providers. Data Breach Reporting Requirements, 89 Fed. Reg. at 9981-89. There are also small but meaningful differences between the substantive obligations imposed by the two sets of requirements. As the FCC notes, the 2024 requirements are materially less prescriptive regarding the content and manner of customer notice. Granting leeway to effectively provide notice, the 2024 Order requires only "sufficient information so as to make a reasonable customer aware that a breach occurred on a certain date, or within a certain estimated timeframe, and that such a breach affected or may have affected that customer's data." Id. at 9980.

The 2016 Order requirements, in contrast, included written or electronic notification of a breach, a description of the data exposed and the date range of the breach, information the customer could use to contact the telecommunications carrier to inquire about the breach, and instructions for notifying federal authorities and law enforcement. Protecting Priv. of Customers of Broadband, 31 FCC Rcd. at 14085. The two Orders also define the term "breach" differently—only the 2024 Order includes an exception exempting "good-faith acquisition[s] of covered data by an employee or agent of a carrier where such information is not used improperly or further disclosed." Data Breach Reporting Requirements, 89 Fed. Reg. at 9971. Even under Petitioners' conception of the CRA, the regulations are not "substantially the same." See Safari Club Int'l v. Haaland, 31 F.4th 1157, 1170 (9th Cir. 2022) (rejecting the contention that two rules were substantially the same in part because the rules were not "substantively identical").

We therefore conclude that the FCC's issuance of the 2024 Order did not violate the CRA.

From Judge Griffin's dissent:

At issue is whether the 2017 disapproval forecloses the 2024 data-breach-reporting rule. All agree that, after the 2017 disapproval, Congress did not "specifically authorize[]" the 2024 rule by later-enacted legislation. 5 U.S.C. § 801(b)(2). Thus, the disapproval's effect depends on whether the 2024 rule is "substantially the same as" the earlier, disapproved one. Id.

Start with the many similarities between the 2016 and 2024 data-breach-reporting rules. A table from petitioners' brief (at 44) helps to visualize just how similar these rules are, particularly when compared to the predecessor 2007 rule concerning breach reporting for CPNI. [The table is on pages 38-39 of the dissent.]

In response, the majority points to minor, technical differences between the 2016 and 2024 data-breach-reporting rules, such as differences in what information must be included in breach notifications and how many customers must be affected to trigger reporting requirements. But such differences are inconsequential: The rules, adopting nearly identical regimes for reporting breaches of customer PII, are "substantially the same." 5 U.S.C. § 801(b)(2). To hold otherwise is to give administrative agencies an obvious way to circumvent the CRA—just make minor, technical changes to a previously disapproved rule.

Because the 2024 data-breach-reporting rule is "substantially the same" as the one Congress disapproved in 2017, the CRA blocks the new rule

But the majority directs our attention elsewhere. It asserts that, instead of focusing on the similarities between the specific breach-reporting rules, we should instead compare the entirety of the FCC's 2016 and 2024 orders, which included the breach-reporting rules and many other discrete rules.

That argument brings us to the heart of the CRA issue: When evaluating whether the new rule is "substantially the same as" the earlier, disapproved one, id., do we focus on the "the part" (the discrete breach-reporting rules) or "the whole" (the orders that included the breachreporting rules, as well as many others)? To put the question another way: At what level of generality do we evaluate whether "the rule" is being "reissued in substantially the same form"? Id.

As the majority notes, there is little precedent to guide our interpretation of the CRA. CRA disapprovals, by their nature, are enacted in historically rare circumstances—"when there has been a recent change in partisan control of the White House, the new President's party has majorities in both chambers of Congress, and there are rules from the previous administration for which the sixty-legislative-day clock has not yet run out." Jody Freeman & Matthew C. Stephenson, The Untapped Potential of the Congressional Review Act, 59 Harv. J. on Legis. 279, 286 (2022). For this reason, there have been only a handful of CRA disapprovals since its 1996 enactment, id. at 286–87 & nn.32–34, and no on-point cases to guide our decision.

Thus, this interpretative challenge begins with the text of the 2017 disapproval: "Congress disapproves the rule submitted by the Federal Communications Commission relating to 'Protecting the Privacy of Customers of Broadband and Other Telecommunications Services' (81 Fed. Reg. 87274) (December 2, 2016), and such rule shall have no force or effect." 131 Stat. at 88. By the resolution's plain terms, it cited to the entire 2016 order (i.e., the whole). So, at first blush, this text favors the majority's view.

But by disapproving the whole 2016 order, Congress disapproved of each of its constituent parts. After all, the CRA defines a "rule" as "[t]he whole or a part of an agency statement of general . . . applicability and future effect designed to implement, interpret, or prescribe law or policy." 5 U.S.C. § 551(4) (emphasis added); see id. § 804(3). Therefore, the effect of congressional disapproval of the rule is also disapproval of its parts. Although the majority asserts that Congress could have made line-by-line disapprovals of the specific rules it wished to reject, the CRA neither requires such specificity nor allows a line-item veto. There is no reason to subject congressional disapprovals of agency action to a clear-statement rule.

Quite to the contrary, our interpretation of the CRA ought to elevate the will of Congress over that of an administrative agency. It is our elected representatives, not unelected commissioners, whom the Constitution vests with legislative power. See Consumers' Rsch., 145 S. Ct. at 2496. True, Congress can "seek assistance" from agencies by making limited delegations of rulemaking authority, id. at 2496–97 (citation modified), but as the CRA makes clear, Congress can and does rein in that authority when it disagrees with what an agency has done. We should ensure that legislative power remains where the Constitution put it—with Congress. And thus we must "avoid rendering what Congress has plainly done"—here, disapproving rules—"devoid of reason and effect." Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 217–18 (2002).

The majority's exclusive focus on the entire order would allow administrative agencies to easily circumvent Congress's disapproval. For instance, if the FCC issued an order adopting four discrete rules (Rules A, B, C, and D) and Congress disapproved it, then, under the majority's logic, the FCC could skirt the disapproval by readopting Rules A and B in one order and Rules C and D in another. Neither of those new orders, under the majority's interpretation of the CRA, would be "substantially the same" as the one that Congress disapproved. That interpretation, rather than giving effect to congressional intent, merely encourages creative ways to flaunt it.

The majority responds that it would be an "anomalous construction of the CRA" if a disapproval prevented an agency from re-promulgating any "rule" in a disapproved order, which could include "the narrowest, most anodyne" of agency statements like "definitions." But that argument has several flaws. First, depending on the circumstances, it is far from a clear that something like a definition qualifies as a "rule"—a "statement of general . . . applicability and future effect designed to implement, interpret, or prescribe law or policy." 5 U.S.C. § 551(4); see id. § 804(3). Second, the CRA includes an exception for inconsequential, procedural language or rules—it excepts any "rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties." Id. § 804(3)(C). Third, and most importantly, we ought not usurp legislative power from Congress and give it to an administrative agency on grounds of a purportedly "anomalous" reading of a statute. If Congress disapproved an order but later wants to restore the agency's authority to enact rules within that order, it is Congress's prerogative to confer that power through later-enacted legislation. See id. § 801(b)(2). There is nothing "anomalous" about such a reading—it correctly assumes that the legislative power, and the authority to delegate that legislative power, rests with Congress. See U.S. Const. art. I, § 1.

To hold that Congress's 2017 disapproval does not bar this rule is to render that disapproval meaningless and to shift legislative power from Congress to an administrative agency. Cf. Loper Bright, 603 U.S. at 411–13 (correcting Chevron's improper shift of judicial power to administrative agencies). I interpret the CRA and the 2017 disapproval in a way that preserves Congress's ability to give agencies only those powers it wishes to confer. Thus, in my view, Congress's disapproval of the FCC's 2016 rule bars the FCC's 2024 data-breach-reporting rule because the two rules are "substantially the same."

 

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] First Amendment Claim Over Firing of Firefighter for Supposedly Racially Offensive Anti-Abortion Post Can Go Forward

From today's decision in Melton v. City of Forrest City, written by Judge David Stras, joined by Judges Lavenski Smith and Ralph Erickson:

Steven Melton is a pro-life, evangelical Christian. In June 2020, he reposted a black-and-white image on Facebook that depicted a silhouette of a baby in the womb with a rope around its neck. His intent was to convey that he was "anti-abortion."

Others did not view the image the same way. Two weeks after he posted it, a retired fire-department supervisor complained to Melton that he thought it looked like a noose around the neck of a black child. It upset him because the caption of the image, "I can't breathe!," was associated with the protests surrounding George Floyd's death. Melton agreed to delete it immediately.

Deleting it was not enough for Mayor Cedric Williams, who called him into his office the next day. Although Melton was "apologetic," the mayor placed him on administrative leave pending an investigation.  After a single day reviewing  Melton's Facebook page and discussing the post with the current fire chief, two retired firefighters, several attorneys, and a human-resources officer, the mayor decided to fire Melton over the image's "egregious nature."

He was concerned about the "huge firestorm" it had created. Among other things, the fire chief's phone had been "blowing up," "several" police officers had become "very upset," and the "phone lines" were jammed with calls from angry city-council members and citizens. Some said that Melton "should not be a part of the … fire department responding to calls." A few even said that they did not want "him coming to their house … for a medical call or fire emergency." According to the mayor, these complaints "threaten[ed] the City's ability to administer public services."

Melton was fired; he sued, claiming the firing violated the First Amendment, and the court allowed the claim to go forward:

Public employees "must," according to the Supreme Court, "accept certain limitations on [their] freedom," because the government has valid "interests as an employer in regulating the[ir] speech," Recognizing, however, that they "do not surrender all their First Amendment rights by reason of their employment," the Court has staked out a middle ground. (emphasis added). Known as Pickering balancing, it requires weighing the government's interest "in promoting the efficiency of the public services it performs through its employees" against the employee's interest "in commenting upon matters of public concern." Pickering v. Bd. of Educ. (1968). Courts weigh these interests on a post hoc basis, long after the speech and the alleged retaliation have come and gone. It is no easy task.

Getting there even involves addressing a couple of threshold issues, one for each side. For Melton, he can bring a claim for retaliation only if he was speaking "as a citizen on a matter of public concern." Then the focus shifts to the government employer to establish that the speech "created workplace disharmony, impeded [Melton's] performance, … impaired working relationships," or otherwise "had an adverse impact on the efficiency of the [fire department's] operations." Only if both are true will we do a full Pickering balancing and weigh these interests against each other.

The record is clear on the first issue. Melton posted the image to his personal page on his own time, and there is no dispute that race and abortion are matters of "political, social, or other concern to the community." From there, the "possibility of a First Amendment claim ar[ose]" out of the "individual and public interest[]" in Melton's speech.

The record is more of a tossup on whether there was a negative impact on Forrest City's delivery of "public services." Sometimes a government employer will experience an actual disruption. Other times, it will have a "reasonabl[e] belie[f]" in "the potential for disruption." Either is usually enough when the government entity is a public-safety organization. But when neither is present, there are "no government interests in efficiency to weigh" and Pickering balancing "is unnecessary."

At best, the evidence of disruption is thin. As the district court pointed out, everyone agrees "that there was no disruption of training at the fire department, or of any fire service calls, because of the post or the controversy surrounding it." Instead, Mayor Williams argues that the "firestorm" itself is what "disrupted the work environment." "[S]everal" police officers and city-council members were upset and "phone lines [were] jammed" with calls from concerned citizens. A few opposed Melton's continued employment as a firefighter and did not want him "coming to their house … for a medical call or fire emergency." These calls seemed to be the main motivation for firing Melton.

The problem is that there was no showing that Melton's post had an impact on the fire department itself. No current firefighter complained or confronted him about it. Nor did any co-worker or supervisor refuse to work with him. Granting summary judgment based on such "vague and conclusory" concerns, without more, runs the risk of constitutionalizing a heckler's veto. Enough outsider complaints could prevent government employees from speaking on any controversial subject, even on their own personal time. And all without a showing of how it actually affected the government's ability to deliver "public services"—here, fighting fires and protecting public safety.

Much of what remained was predictive. Mayor Williams claimed, for example, that "conveying racist messages against Black people [would] affect trust between firefighters." To provide a "reasonable prediction[]" sufficient to take the case away from a jury, a decisionmaker must do more than make a vague statement in response to a conditionally worded question about what could happen. When the record and the prediction do not match, it will usually be up to the jury to resolve the discrepancy and determine whether the prediction was reasonable enough to be entitled to "substantial weight."

What the district court should not have done was automatically give the mayor's belief "considerable judicial deference." As one of our cases puts it, "we have never granted any deference to a government supervisor's bald assertions of harm based on  conclusory hearsay and rank speculation." Keep in mind that, in addition to the lack of evidence supporting the mayor's prediction, his brief investigation could lead a reasonable jury to conclude that what he said masked the true reason for Melton's firing, which was a disagreement with the viewpoint expressed in the image. The jury's role will be to resolve these factual disputes "through special interrogatories or special verdict forms." The district court can then decide, based on "the jury's factual findings," whether Melton's speech was protected.

And the court concluded that the law here was "clearly established," so Melton's claim couldn't be dismissed on qualified immunity grounds:

Insufficient evidence of a disruption would be "fatal to the claim of qualified immunity" because there would be no governmental interest to weigh. If the jury finds sufficient evidence of disruption to get to Pickering balancing, on the other hand, then "the asserted First Amendment right [is] rarely considered clearly established."

Frank H. Chang and John Michael Connolly (Consovoy & McCarthy) and Chris P. Corbitt and David Ray Hogue (Hogue & Corbitt) represent Melton.

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[Ilya Somin] My New Boston Globe Article on Why Massachusetts Should Reject Rent Control, and Instead End Exclusionary Zoning

[Rent control would only make the housing crisis worse. Zoning reform would make things better.]

Illustration: Lex Villena; Lev Kropotov

Today, the Boston Globe published my article on why rent control is a terrible approach to addressing the housing crisis. Massachusetts should instead ban exclusionary zoning. Here is an excerpt:

Massachusetts may have a rent control measure on its 2026 ballot, which would restrict rent increases throughout the state. Advocates claim rent control would alleviate the state's housing crisis. They couldn't be more wrong. Rent control is a proven failure that actually exacerbates housing shortages. The state should instead ban exclusionary zoning, which restricts the types of housing that can be built in a given area. That could truly alleviate shortages and make housing more affordable.

Rent control is condemned by a broad consensus of economists and housing experts across the political spectrum. Jason Furman, former chair of Barack Obama's Council of Economic Advisers, notes that "[r]ent control has been about as disgraced as any economic policy in the tool kit." A recent meta-study in the Journal of Housing Economics found that while it effectively slows rent increases in controlled units, it has multiplenegative effects, including reduction in the quantity and quality of available housing….

By contrast, ending exclusionary zoning across the state would greatly increase housing construction and reduce rents, while empowering property owners to have greater control over their land….

Extensive research by economists and other scholars finds that exclusionary zoning massively increases housing prices and prevents millions of people from "moving to opportunity" — taking up residence in places where they could find better jobs and educational options. Exclusionary zoning has a long history of being used to keep out minorities and poor people. It also greatly increases homelessness by pricing low-income people out of the housing market.

I grew up in Massachusetts — where my parents and I arrived as poor recent immigrants in 1980 — and owe much to the opportunities the state has to offer. Curbing exclusionary zoning would help ensure that more people of all backgrounds could access those opportunities….

Zoning is often viewed as a tool to protect the interests of current homeowners, many of whom support "NIMBY" ("not in my backyard") restrictions on building. But many homeowners would have much to gain from ending restrictions on housing construction. They would benefit from added economic growth and innovation, increases in the value of their property if it could be used to build multifamily housing, and lower housing costs for their children.

Current property owners would also benefit from having the right to use their land as they see fit. Advocates of local control of land use should embrace YIMBYism ("yes in my backyard"): Letting property owners decide how to use their own land is a far greater level of local control than allowing local governments to impose one-size-fits-all regulations.

YIMBY zoning reform unites experts across the political spectrum. Supporters range from progressives such as Furman and former president Joe Biden's Council of Economic Advisers to free-market advocates such as Edward Glaeser of Harvard, one of the world's leading housing economists….

There is much room for zoning-reform progress in Massachusetts. The National Zoning Atlas recently surveyed the state's zoning rules and found that about 63 percent of the state's residential land is restricted to single-family homes only (including some where multifamily construction is permitted only after a special public hearing, which can be easily manipulated by NIMBY forces to block development). Many communities also have other severe restrictions, such as minimum lot sizes and parking mandates (imposed on 76 percent of residential land).

I would add that most of these problems are far from unique to Massachusetts. Other states should also reject rent control and instead embrace YIMBYism.

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[Ilya Somin] Why the Supreme Court is Highly Unlikely to Overturn Obergefell in the Kim Davis Case

[My Cato Institute colleague Walter Olson explains.]

Kim Davis. (Getty Images)

 

Kim Davis, a former Kentucky county clerk who was sued for refusing to issue marriage licenses to same-sex couples has filed a cert. petition asking the Supreme Court to overturn Obergefell v. Hodges, the landmark 2015 ruling striking down laws banning same-sex marriage:

Ten years after the Supreme Court extended marriage rights to same-sex couples nationwide, the justices this fall will consider for the first time whether to take up a case that explicitly asks them to overturn that decision.

Kim Davis, the former Kentucky county clerk who was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds, is appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorneys fees.

In a petition for writ of certiorari filed last month, Davis argues First Amendment protection for free exercise of religion immunizes her from personal liability for the denial of marriage licenses.

More fundamentally, she claims the high court's decision in Obergefell v Hodges -- extending marriage rights for same-sex couples under the 14th Amendment's due process protections -- was "egregiously wrong."

I have been getting media calls about this, and have seen expressions of concern from people worried about it. My Cato Institute colleague Walter Olson has a helpful Facebook post explaining why such fears are likely misguided. I reprint it here, with his permission:

Dozens of friends are freaking out at news reports that Kim Davis, the disgraced Kentucky clerk who has struck out in court up to now, is asking the Supreme Court to overturn Obergefell, the same-sex marriage ruling.

I understand why people get upset, but here's why this story doesn't even make it up to number 200 on my list of current worries:

Pretty much anyone with a pulse who's exhausted other avenues can file a certiorari petition and it doesn't mean the Supreme Court will hear the case, let alone agree to revisit one of its most famous modern rulings, let alone resolve it the wrong way.

"People said they weren't going to overturn Roe, then they did."

Court-watchers have known literally for decades that there was a big chance Roe would go. Overturning it was the number one project for much of the legal Right through countless confirmation battles. Thousands of anti-Roe meetings were held and articles published. There is no comparable head of steam on Obergefell, or really any head of steam at all.

"Terrible things are happening and I don't want to be told that I'm overreacting."

I agree that terrible things are happening. Accurately assessing which terrible things have a serious probability of happening soon is essential in directing our energy to where it can do the most good.

"I don't trust the Supreme Court."

You don't have to trust them, but you should practice the most useful skill in Court-watching: counting to five. The anti forces will get Thomas and probably Alito. Roberts was strongly against at the time but has been careful to treat it as legitimate precedent since. Gorsuch usually sides with religious litigants but also wrote Bostock, the most important gay rights decision in years, and Roberts raised eyebrows by joining him. Most people who know Barrett and Kavanaugh believe them to have zero appetite for reopening this issue. Trump isn't pushing for it. Granting cert takes four votes, overturning a case five. I don't see Davis getting up even to three on the question of whether to overturn Obergefell.

Each time I write a version of this prediction I get called rude names, as if I were consciously misleading people for some fell purpose. But as someone with real rights of my own at stake, I'm just trying to give you my honest reading. We'll probably know within three months whether the Court will hear Davis's case and if so on what question presented. Save your anger till then.

Both Walter and I are longtime same-sex marriage supporters, since before it was popular. And, as Walter notes, his stake in this issue goes beyond legal theory (he is a gay man in a same-sex marriage). That doesn't by itself prove us right. But it does mean Walter, at least, cannot easily be accused of downplaying concerns about reversing Obergefell because he doesn't really care about the issue.

In a post on the tenth anniversary of Obergefell, I explained its great benefits, why it reached the  right result (even though it should have used different reasoning), and why it is likely to prove durable.  Maybe I will be proven wrong on the latter point. But if Obergefell does get overruled, it won't be in the Kim Davis case.

Her case has multiple flaws as a potential vehicle for the Obergefell issue. Among other things, that question is an appendage to a dubious religious-liberty claim, under which Davis claims that government officials have a First Amendment right to refuse to issue marriage licenses to couples they disapprove of on religious grounds. It's worth noting, here, that some people have religious objections to interracial marriages and interfaith marriages, among other possibilities. Does a clerk with religious objections have a constitutional right to refuse to issue a marriage license to an interracial couple or to one involving an intermarriage between a Jew and a Christian? The question answers itself.

The court of appeals rightly rejected Davis' claim on the grounds that "Davis is being held liable for state action, which the First Amendment does not protect—so the Free Exercise Clause cannot shield her from liability. The First Amendment protects 'private conduct,' not 'state action.'"

This is pretty obviously right. In the private sector, I think there often is a First Amendment free speech or religious liberty right to refuse to provide services that facilitate same-sex marriages, as with bakers who refuse to bake a cake for a same-sex wedding, website designers who refuse to design a site for such a wedding, and so on. While I have little sympathy for such people's views, they do have constitutional rights to act on them in many situations. And same-sex couples almost always have other options for getting these kinds of services.

Public employees engaged in their official duties are a very different matter. They are not exercising their own rights, but the powers of the state. And the services they provide are often government monopolies to which there is no alternative.

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