Eugene Volokh's Blog, page 4

[Josh Blackman] Today in Supreme Court History: September 28, 1787

9/28/1787: Confederation Congress adopts Constitution and sends it to the states.

The Constitution

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[Eugene Volokh] Sunday Open Thread

[What's on your mind?]

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[Josh Blackman] Why Can't The Court Schedule Emergency Docket Conferences?

[Justice Kagan peels back the curtain on the Court's failure to schedule conferences for emergency cases.]

Friday evening, the Court decided Department of State v. AIDS Vaccine Advocacy Coalition. This is the second time this case with this name has come to the Supreme Court. In the earlier iteration, the Court partially ruled against the Trump Administration. This time, the case concerned whether plaintiffs can bring a suit to enforce the Impoundment Control Act (ICA) through the Administrative Procedure Act (APA). By a (likely) 6-3 vote, the Court found that the ICA (likely) precludes suits under the APA. Justice Kagan wrote an eight-page dissent, joined by Justices Sotomayor and Jackson. 

The Court offered a few sentences of reasoning, which I suppose is an improvement over past practices. Then again, if Justice Kagan could muster a detailed dissent, the majority could have mustered something more in depth.

Kagan, once again, complains about the emergency docket process:

As even that much suggests, this case is not a likely candidate for a grant of emergency relief. Per usual on our emergency docket, we have had to consider this applicationon a short fuse—less than three weeks. We have done so with scant briefing, no oral argument, and no opportunity to deliberate in conference. Because of how this case came to us, we likewise do not have the benefit of a pertinent court of appeals decision, much less a set of decisions expressing different views. In a few weeks' time—when we turn to our regular docket—we will decide cases of far less import with far more process and reflection.

Justice Kagan makes two familiar criticisms: "scant" briefing and lack of oral arguments.   

But Justice Kagan peels back the curtain a bit, and reveals something that I don't think has been acknowledged before: the Justices did not even have the opportunity to deliberate in conference. The Court publishes the calendar of when regular conferences are scheduled. And those conferences are not held over the summer break. The Court will soon hold the long conference, which will be the first official conference since the end of last term.

I had assumed, perhaps wrongly, that the Justices hold ad hoc conferences for emergency petitions. Presumably, the Justices could announce how they will vote on an application, a majority opinion could be assigned, as well as the dissent.  Maybe such conferences could be done in person, or remotely for Justices who are traveling. But Justice Kagan tells us that there was no conference for this case. And I have to think that other emergency applications likewise did not have a conference.

Why can't the Court hold an emergency conference? A one-hour Zoom call could allow each Justice to express his or her view, and a majority could coalesce around a line of reasoning. I have to imagine there are memos circulated between the Justices. And perhaps some Justices do chat with each other (such as the members of the dissent). Does the Chief Justice just circulate an order that others are supposed to join? Kagan explains that there is no opportunity for all of the Justices to hash out a fast-moving case. Even if there is no time to convene oral argument, there should be time to convene a conference.

Who is to blame here? For once, I think the blame actually would fall with the Chief Justice Roberts. As the presiding officer, Roberts could convene a conference on short notice. But Roberts didn't call such a conference, even after Kagan complained there was no conference in her (draft) dissent. For all we know, Justices Kagan, Sotomayor, and Jackson have repeatedly called for conferences, and Roberts rebuffed those requests--thus leading Kagan to peel back the curtain in her dissent.

There may be other ways to assign the blame. Justice Barrett has been barnstorming the country recently to promote her book. Could this promotional travels have inhibited her from participating in a conference? Who knows? But Kagan threw down the gauntlet. And scrutinizing Barrett's travel schedule is now fair game. Justices Sotomayor and Jackson likewise have been promoting their books, but I have to imagine that they would have promptly attended the conference clamored for in their dissent.

What is the solution? Well, I think Proposal #3 from my article, Bilateral Judicial Reform, would be helpful: "Mandate that the Supreme Court remains in session year-round, with at least one public sitting for oral argument and one conference per calendar month." 

I explained:

Proposal #3 would eliminate the current October-June schedule. In-stead, the Justices would remain in session year-round. Each month, the Jus-tices would hold at least one public sitting for oral argument, which would entail at least one conference to vote on the argued cases. This proposal has several virtues. The Justices would no longer feel compelled to rush out a decision argued in April by the end of June, solely to meet some artificial vacation-induced deadline. This proposal would also allow the Court to grant cert petitions year-round and avoid the dead pool that is the long conference. This proposal can be implemented by the Court on its own or through Congress.

If there are regularly scheduled oral arguments and conferences, it would be easy enough to slot emergency cases into those sessions.

This calendar would make it harder for a third of the Court to travel the country to sell their books. Good. Their job is to decide cases, not sell books.

Proposal #2 from my article is probably my most popular one: "Impose statutory caps for outside income earned through book royalties, advances, and other similar business dealings." This rule would obviate many other problems. Justice who are not incentivized to sell their books will travel less.

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[Josh Blackman] Supreme Court of Texas Likely to Remove ABA as "Final Say" on Accreditation

["The Court is of the tentative opinion that the ABA should no longer have the final say on whether a law school’s graduates are eligible to sit for the Texas bar exam and become licensed to practice law in Texas."]

On September 26, 2025, the Supreme Court of Texas issued a momentous order. The Justices likely signaled that the ABA will no longer have the "final say" on accreditation.

After further consideration of the matter, including review of the many helpful comments received, the Court is of the tentative opinion that the ABA should no longer have the final say on whether a law school's graduates are eligible to sit for the Texas bar exam and become licensed to practice law in Texas.

In April, the Supreme Court of Texas requested comments on whether to "reduce or end" the reliance on the American Bar Association's Section on Legal Education. I organized a symposium with the Civitas Institute, offering some contrary viewpoints. I also submitted a comment to the Court. All but one of the Deans of Texas Law Schools opposed the change, offering what I thought was a fairly weak defense of the ABA. Kudos to UT Dean Bobby Chesney for not joining the crowd, and offering a nuanced take on the ABA. Apparently, the Supreme Court of Texas did not find all of the other deans persuasive.

The Court how now proposed a single change to Rule 1 of the Rules Governing Admission to the Bar of Texas: the Supreme Court of Texas, and not the American Bar Association would accredit law schools.

The Court has requested comments by December 1, 2025, and announced the amendment will likely take effect on January 1, 2026.

The Court invites public comments on the proposed amendments. Comments should be submitted in writing to rulescomments@txcourts.gov by December 1, 2025.

The Court will issue an order finalizing the amendments after the close of the comment period. The Court expects the amendments to take effect on January 1, 2026.

I think the phrasing here is significant. Consider how the prior order specifically listed the law school deans before the public:

The Court invites comments on this topic from the Texas Board of Law Examiners, the Texas law school deans, the bar, and the public.

In my comment, I criticized this phrasing:

With respect, I think this order lists the relevant constituencies backwards. The Supreme Court's authority to regulate the legal profession is premised on serving the public interest. And the interests of law school deans, in particular, are not always consonant with the public interest.

It is the public that should weigh in on how this change affects the public.

The Court offered several points to guide the comment process.

First, the primary objection of the law deans was that removing the ABA's role would affect portability. In other words, graduates of Texas law schools would not be able to sit for bar exams in other states. I think the Deans care less about graduates of foreign law schools sitting for the Texas bar. This concern would be raised more by law firms.

Commenters and other interested parties are advised that the Court, in reasserting its authority over the approval of law schools:

a. intends to preserve the portability of Texas law-school degrees into other states and to preserve the portability of out-of-state law-school degrees into Texas;

It is not clear how portability will be preserved, but SCOTX is moving forward.

Second, another objection was that even if the ABA is removed as the sole accreditor, law schools will still opt to voluntarily maintain ABA accreditation. This two-tier accreditation could lead to duplicative and burdensome work. Texas explains there will not be "additional" burdens.

b. does not intend to impose additional accreditation, compliance, or administrative burdens on currently approved law schools, which need not take any additional action in order to remain approved law schools in Texas;

Third, for schools that are already ABA accredited, Texas will offer "ideologically neutral criteria" to maintain accreditation. Say farewell to DEI mandates to teach "cross-cultural competency" and similar topics. More pressingly, accreditation will be premised on neutral output measures, such as bar passage and employment statistics. Seth Chandler offered a metrics-based approach in his Civitas essay.

c. intends to provide stability, certainty, and flexibility to currently approved law schools by guaranteeing ongoing approval to schools that satisfy a set of simple, objective, and ideologically neutral criteria (such as bar exam passage rate) using metrics no more onerous than those currently required by the ABA;

Fourth, Texas law schools that opt out of ABA accreditation could maintain Texas accreditation. There may be Texas law schools that decide to go down this path. Cutting the ABA's expensive mandates could help improve actual student outcomes.

d. will not consider the fact that a law school loses ABA accreditation to be sufficient grounds for removal of the school from Texas's list of approved schools;

Fifth, schools in other states that are not ABA accredited will be able to opt in to the Texas list.

e. intends to develop, in consultation with the Texas Board of Law Examiners, a deliberative approach to requests from law schools not currently accredited by the ABA that wish to be added to Texas's list;

Sixth, the Court lists all of the law schools currently accredited by the ABA, and says they are now "approved by the Court as satisfying the law study requirements for admission to the Texas Bar." No further work needs to be taken. Graduates of those schools can con

f. does not anticipate immediate changes to the current list of approved law schools; and

Seventh, there are currently efforts by Florida, Texas, and other states to create alternative multi-state accrediting agencies. I think the Trump Department of Education will gladly certify these bodies, thus further weakening the ABA's authority.

g. may consider, in the future, returning to greater reliance on a multistate accrediting entity other than the ABA should a suitable entity become available.

It is difficult to explain how significant this order is. In the span of a few pages, the Texas Supreme Court demonstrated what many of us realized years ago: states do not need the ABA as an accreditor. The ABA only has itself to blame. Rather than realizing what time it was, and focusing on its core function, the organization continued its mission creep, and squandered its credibility.

I suspect Florida, Ohio, and other states to follow suit.

I have helped to organize a panel at the Federalist Society National Convention on the future of the ABA. It could not be more timely. And I intend to submit a comment to SCOTX by December.

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[Josh Blackman] Today in Supreme Court History: September 27, 1787

9/27/1787: First Anti-Federalist letter by "Cato" is published.

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[Eugene Volokh] Ex-Employee Can Sue Planned Parenthood for Race Discrimination as a "Jane Doe," Because Abortion Providers Had Been Physically Attacked

Jane Doe, a former Planned Parenthood employee, is suing Planned Parenthood for race discrimination (and some related employment claims). Usually, employment claims are brought in the plaintiff's own name, at least unless there's some highly personal element (such as alleged sexual assault) that's part of the case.

But Doe asked to be pseudonymous—and was allowed to be pseudonymous—simply on the basis that her having worked at Planned Parenthood might expose her to criminal attack. On this theory, anyone who worked for an abortion clinic would likewise be entitled to pseudonymity in any case in which such employment would be disclosed. In principle, the same would be true as to any other occupation where there appears to be some general risk of violence due to public hostility—or for that matter any case where the person's political or religious views might expose them to some such general risk. And the judge just granted the motion (Doe v. Planned Parenthood of Illinois (N.D. Ill.)).

That strikes me as not right: As I've argued (citing various precedents),

Public access to information about civil cases "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." This access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and the Judiciary's "institutional integrity." "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification."

And this applies to the names of the parties as well. "[A]nonymous litigation" thus "runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts."

Party names often offer the best clue for discovering further information about the case. Consider journalists who write about civil litigation. Without party names, they are limited to what they can glean from the filings and what the pseudonymous parties' lawyers are willing to reveal.

But armed with the names, they can investigate further. They can contact the parties' coworkers, business associates, or acquaintances. They can search court records in other cases to determine whether the fact pattern in this case had led to other litigation. They can more generally see what other cases have been filed by the plaintiff or against the defendant and see whether the parties have been found to be credible or not credible in the past. They can determine whether the parties might have ulterior motives for litigating.

Pseudonymity also tends to lead to additional restrictions on public access as a case unfolds. Because filed documents will often contain information that indirectly identify a pseudonymous party, courts may need to outright seal other case information or enjoin a party from publicly revealing the pseudonymous party's name (or other details of the lawsuit) in order to maintain effective pseudonymity.

And allowing pseudonymity in one case invites pseudonymization of all other cases that raise similar concerns, "open[ing] the door to parties proceeding pseudonymously in an incalculable number of lawsuits" of that kind. See, e.g., Doe v. Fedcap Rehab. Servs. (S.D.N.Y. 2018) ("At bottom, Plaintiff wants what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it."). Courts have therefore treated litigating under a pseudonym as implicating the right of public access to judicial proceedings. And, because of this, all "circuit courts that have considered the matter have recognized a strong presumption against the use of pseudonyms in civil litigation."

Concrete evidence of specific threats to this particular person might suffice to justify a rare exception to this general rule. But it can't be enough that there's some evidence of past attacks against some Planned Parenthood ex-employees, Jews suing over anti-Semitism, police officers, employees of controversial political organizations, etc.

This having been said, I appreciate that the caselaw on this (as on most things having to do with the law of pseudonymous litigation), is mixed; see, e.g., this case and pp. 1412-14 of my The Law of Pseudonymous Litigation article. In any event, I thought this decision was worth noting; here is an excerpt from the motion that the judge just granted:

Plaintiff respectfully requests leave to proceed under a pseudonym to protect her personal safety and privacy in light of the well-documented risks associated with her former employment at a major abortion provider in Illinois. Given the hostile political and social environment following the Dobbs decision and documented incidents of violence and threats targeting abortion providers and their staff in Illinois, anonymity is both necessary and justified….

There is a real danger of physical harm to Plaintiff as evidenced by the following:

The Illinois abortion provider community has been subject to severe and escalating threats, including arson and stalking, exemplified by the 2023 Peoria Planned Parenthood firebombing and the Danville attempted arson attack.Statewide statistics reveal a sharp increase in harassment, death threats, clinic invasions, and stalking targeting providers and their staff.Plaintiff's firsthand experience working at the provider during these incidents gives her a credible basis to fear retaliation, harassment, and physical danger if her identity is publicly disclosed.Plaintiff's identity is not essential to the adjudication of her employment discrimination claims.Illinois courts have previously granted anonymity and protective orders under analogous circumstances where parties faced credible risks of harm or harassment.

Further, the following documented incidents of violence and threats in recent past further support Plaintiff's valid concern for her safety:

January 15, 2023 – Peoria Clinic Firebombing: A Molotov cocktail-style device was thrown through the window of the Peoria clinic, causing approximately $150,000 in damages and forcing closure for over a year. The suspect was federally prosecuted and sentenced to 10 years in prison. (Sources: AP News, DOJ Press Release)May 20, 2023 – Danville Arson Attempt: A suspect rammed a vehicle loaded with gasoline into a Danville clinic. The suspect was arrested and sentenced to 5 years in prison. (Sources: Local news reports) March 2024 – Storming of Chicago Corporate Office: A male intruder breached security at PPIL's downtown Chicago administrative offices, leading to a police lockdown and significant trauma among staff. (Sources: PPIL Annual Safety Report, Chicago Tribune)Multiple Bomb Threats & Vandalism (2022–2025): PPIL clinics in Aurora, Springfield, and Champaign have been targets of at least 22 documented threats, including bomb scares, graffiti, smashed windows, and aggressive protester actions. (Sources: NBC Chicago, ABC7 Chicago)March 2025 – Closure of Englewood Clinic: PPIL shuttered its Englewood location— the sole clinic serving the historically Black and economically marginalized South Side of Chicago. Community members protested the closure, citing disproportionate impact and neglect. (Source: Chicago Sun-Times, March 2025)

In addition, the volatility surrounding abortion services in Illinois continues to escalate amid national and regional political tensions. While Illinois generally supports reproductive rights, it remains a target for extremist groups, particularly given its proximity to more restrictive states. Notably, national and regional anti-abortion protests have intensified, often naming or doxxing individual clinic employees and former employees; current federal and state political climates have emboldened groups that openly threaten abortion providers and their supporters; former and current employees have been surveilled, harassed, and publicly threatened following media or legal exposure; and groups such as the Pro-Life Action League actively oppose abortion services and contribute to this hostile environment.

Therefore, as a former employee of Defendant, Plaintiff faces credible threats to personal safety, including harassment, doxxing, and physical harm. The hostile climate is underscored by documented acts of violence and harassment against abortion providers and their staff. While Plaintiff does not currently reside in the community served by the Englewood Clinic, which closed in March 2025, she has visited the location multiple times in her official capacity. This clinic served the historically Black and economically marginalized South Side of Chicago community experiencing ongoing unrest and heightened tensions, including pronounced hostility toward abortion services, current employees, and former employees. The closure of the only clinic servicing this area sparked significant outrage among community members. This geographic and social context significantly elevates the risks to Plaintiff's personal safety and privacy….

Due to the credible threats of violence, ongoing political extremism targeting abortion providers, the sensitivity of the organizational misconduct involved, and the high stakes to Plaintiff's personal safety, there are exceptional circumstances warranting Plaintiff's anonymity in this matter. In sum, this identity of Plaintiff puts her in real danger of physical harm.

As such, and for the foregoing reasons, Plaintiff respectfully requests that the Court grant her motion to proceed under pseudonym and for a protective order limiting disclosure of her identity to counsel for Defendant.

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[John Ross] Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal

[Doping horses, DEI trainings, and working on a Saturday]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Won't you take me to YIMBYTown?

This D.C. Circuit case has it all! Sovereign immunity! Arbitrability! Equatoguinean law!IRS: Sure, sure, federal law requires us to pay whistleblowers a percentage of what we recover based on their reports of misconduct, and, yes, this whistleblower spent years meeting with IRS officials and trumpeting the wrongdoing he'd found in the media, and, of course, we paid him the full percentage for four of the companies he blew the whistle on, but this fifth company he also blew the whistle on at the same time? Yeah, that one we would have found all by ourselves (we assert without evidence). D.C. Circuit: Yeah, absolutely not.White employee of the New York Department of Education quits and sues, alleging a hostile workplace based on, among other things, mandatory DEI trainings. Choice quotes from the trainings include: "There is white toxicity in the air, and we all breathe it in;" "white culture's values" are "homogenous and supremacist;" and if participants don't learn to stand up to "people like [plaintiff] who disagree with these views about white supremacist values, children's lives [will] be at stake." Second Circuit: That could indeed be a hostile workplace. Summary judgment for DOE reversed (other claims affirmed).Come for the "extensive and years-long doping conspiracies in the professional horse racing industry." Stay for how the Second Circuit responds to the defendants' argument that nobody was harmed by their doping scheme because maybe all the horses were doping. (Though the court is more sympathetic to their arguments that racetracks didn't suffer losses when they would have had to pay out a winner of the races regardless of doping, and that forfeiture isn't an available punishment for this sort of drug-misbranding offense.)Gun owners: The Second Amendment gives me a right to carry my pistol in Times Square or on the subway, and to do so openly, and without having to get a NYC-specific permit. Second Circuit: Doubtful, at least at this stage. No PI for you.Pretending to be consumers with debt, Pittsburgh law firm sends handwritten letters that bury a debt dispute deep in the text, hoping creditors miss it. (A creditor who notifies a credit bureau of a debt without disclosing the dispute subjects themselves to a consumer lawsuit that can result in $1,000 damages + attorneys' fees.) Creditors indeed miss it, lawyers pounce—raking in debt-collection dollars for the firm. Ruh roh, a creditor catches on to two nearly identical complaints, and everything unravels when paralegals admit to writing and sending the letters without ever speaking with the clients. Sanctions abound! Third Circuit: As they should.A group of law enforcement officers executed a search warrant in Charlotte, NC at a suspected meth trafficker's home. Chaos ensues. One officer shoots another at least ten times, severely injuring him. Shot officer sues shooting officer for excessive force and several tort claims. As they litigate, the district court seals bodycam footage, refuses local TV station access. Fourth Circuit: Unseal it. The First Amendment protects the right of access to court records, which isn't outweighed here by the shooting officer's right to a fair trial.Two-thirds of this Fifth Circuit panel upholds the EPA's rejection of Texas's State Implementation Plan (a SIP) to govern certain air pollutants, which requires the imposition of a Federal Implementation Plan (a FIP), and does an admirable job of pretending we can spend all this time talking about SIPs and FIPs yet somehow still sound like grownups.When the government abrogates a contract using its sovereign power, it (sometimes) works a taking and is required to pay just compensation by the Fifth Amendment, but when the government abrogates a contract as a party to that contract, it just abrogates the contract and the Constitution doesn't have much to say about it. This Fifth Circuit case is an example of the second thing.Sixth Circuit: II. Analysis. A. Evidence of Racial Harassment. 1. Use of the Terms "Monkey" and "Monkey Ass."UPS driver really doesn't want to work on Saturdays, engaging in all sorts of employer-annoying shenanigans that get him repeatedly fired (the union keeps getting his job back). Driver sues UPS under the Iowa Civil Rights Act, alleging race and age discrimination, hostile work environment, and retaliation. The case is removed to federal court. Eighth Circuit: Where (1) it belongs under the doctrine of complete preemption, and (2) you lose.Medical worker in The Dalles, Or. objected to getting a COVID shot and to testing as an alternative. She claims this is on religious grounds. Employer: No, you're just shoehorning in a religious reason to justify your personal, secular beliefs. Ninth Circuit: We think that's right and it was OK to dismiss her complaint. Dissent: You can't question whether a religious belief is genuine as pleaded. This creates a circuit split and breaks with all kinds of prior understandings of how to deal with religious exemptions.You may remember the Guns-Free School Zones Act from such cases as United States v. Lopez (1995). Congress "fixed" its pesky Commerce Clause problems long ago and it's still out there protecting us from violent criminals. Such as a man in Billings, Mont. A neighbor stalked him and his mother and repeatedly violated a protection order. So the man started carrying a shotgun for protection, for which he had a permit. Unfortunately he lived near a school. Feds: He did have a permit but it didn't comply with the Act's permit exception. Ninth Circuit (over a dissent): We're gonna say it did comply.If you like strip club cases whose specials come with a twist, try out this one from Chamblee, Ga. where the venue challenged ordinances not only under the First and Fourteenth Amendments, plus Georgia's own Equal Protection Clause, but also under the Contracts Clause. The specials aren't all that good, though, as the Eleventh Circuit didn't order any of them.Woman in Stockbridge, Ga. during the COVID pandemic collects some needed oxygen supplies from a building on a cul-de-sac. When she starts driving away two men with flashlights run toward her. Thinking they were a threat, and not knowing they were cops, she guns it. They then gun her, firing four shots (that luckily only hit the vehicle). She sees other officers and stops. And spends hours in detention. Turns out the cops were there because of something suspicious elsewhere in the cul-de-sac. Eleventh Circuit: Not suspicious enough for the cops to get qualified immunity.Drunken man on Pinellas County, Fla. highway repeatedly tries to run a car of Black people off the road, calling them racial slurs. After he gets out at an intersection the Black driver subdues the racist drunk, who passes out but then wakes up to vomit. He's prosecuted under a law adopted under Congress's 13th Amendment power. Eleventh Circuit: Which is constitutional, as precedent says that power extends to the "badges and incidents" of slavery. Concurrence: And it would be a bad idea and contrary to original meaning if SCOTUS overruled that precedent.Police obtain a warrant to search the residence of a man in Lake Worth, Fla. who was suspected of committing drug and firearms offenses. They believe it's a single-family home, but when they get there turns out the man lives in one of a few efficiency apartments in the back. They enter and find the evidence. Man: The warrant only identified the property address, not my individual unit, and thus did not "particularly describe[e] the place to be searched." Eleventh Circuit: Close enough for government work.And in en banc news the Second Circuit will not rehear a motions panel ruling that declined to stay district-court orders requiring the government to return people to the jurisdiction so they could prosecute a habeas challenge to their arrest and detention, though a lengthy two-judge concurrence in that denial suggests that at least some judges think the case should come out the other way when the merits panel takes a look.And in more en banc news, the Ninth Circuit will not rehear a merits panel ruling that upheld an injunction against Arizona's requirement that voters show heightened proof of citizenship, though eleven judges write or join various dissents from that denial.

Five South Side Chicago businesses will compete on October 16 in the finals of the 12th annual South Side Pitch, hosted by the Institute for Justice Clinic on Entrepreneurship. The competition will again be held at the Polsky Center for Entrepreneurship and Innovation in Hyde Park. The five finalists will compete in front of an energetic live audience of South Siders to win several prizes, for a combined total of over $38,500 in cash prizes. Learn more here about how these incredible entrepreneurs will share their origin stories and their vision for the future in a "Shark Tank"-style contest.

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[Eugene Volokh] California Wants to Hold Social Media Platforms Liable for User Posts Containing Bias- and Political-Hostility-Motivated Threats

California SB 771, which is now on Governor Newsom's desk for signature, would add a new statute that provides the following (some structure added):

(a) A social media platform [that has >$100M in annual revenues] that

violates [California Civil Code] Section 51.7, 51.9, 52, or 52.1 through its algorithms that relay content to usersor aids, abets, acts in concert, or conspires in a violation of any of those sections,or is a joint tortfeasor in a violation of any of those sections,

shall … be liable to a prevailing plaintiff for a civil penalty for each violation sufficient to deter future violations but not to exceed [$1M for knowing violations, and $500K for reckless violations, potentially doubled if the platform knew, or should have known, that the plaintiff was a minor].

(b) (1) For purposes of this section, deploying an algorithm that relays content to users may be considered to be an act of the platform independent from the message of the content relayed.

(2) A platform shall be deemed to have actual knowledge of the operations of its own algorithms, including how and under what circumstances its algorithms deliver content to some users but not to others.

To explain (with some oversimplification) the statutory cross-references,

Section 51.7 bans violence and threats of violence based on actual or perceived political affiliation, position in a labor dispute, or race, religion, immigration status, etc.Section 51.9 bans sexual harassment in a wide range of business relationships.Section 52 imposes liability for violations of 51.7, of 51.9, and of California bans on discrimination in places of public accommodation, and discrimination and boycotts by businesses.Section 52.1 bans interfering ("whether or not under color of law") by threat, intimidation, or coercion with the exercise of any constitutional rights (including free speech rights).

The legislature's background findings, from section 1 of SB 771, seem to suggest the legislature is concerned specifically about "targeted threats, violence, and coercive harassment, particularly when directed at historically marginalized groups," "especially … in light of rising incidents of hate-motivated harm, as documented across the state":

[H]ate crimes involving anti-immigrant slurs increased by 31 percent ….[A] 400-percent rise in anti-LGBTQ+ disinformation and harmful rhetoric on major social media platforms.[A]nti-Jewish bias events rose by 52.9 percent and anti-Islamic bias events rose by 62 percent in 2023.Paid advertisements promoting violence against women, including language calling for beatings and killings, [have been] successfully placed and distributed on major social media platforms.

The legislature adds that "[t]he purpose of this act is not to regulate speech or viewpoint but to clarify that social media platforms, like all other businesses, may not knowingly use their systems to promote, facilitate, or contribute to conduct that violates state civil rights laws."

Now the law of course already bans aiding and abetting criminal or tortious behavior. But, as the Supreme Court concluded with regard to federal law in Twitter, Inc. v. Taamneh (2023), such liability generally requires some special steps on the defendant's part to aid the illegal actions. In particular, the Court rejected an aiding and abetting claim based on Twitter's knowingly hosting ISIS material and its algorithm supposedly promoting it, because Twitter didn't give ISIS any special treatment:

"ISIS was able to upload content to the platforms and connect with third parties, just like everyone else.""[D]efendants' recommendation algorithms matched ISIS-related content to users most likely to be interested in that content—again, just like any other content.""All the content on [the] platforms is filtered through these algorithms, which allegedly sort the content by information and inputs provided by users and found in the content itself. As presented here, the algorithms appear agnostic as to the nature of the content, matching any content (including ISIS' content) with any user who is more likely to view that content.""[T]here are no allegations that defendants treated ISIS any differently from anyone else."

But the new California law seems to intentionally set forth aiding-and-abetting liability under California law that goes well beyond what Taamneh recognized under federal law. Coupled with the new statute's subsection (b)(2)—"A platform shall be deemed to have actual knowledge of the operations of its own algorithms, including how and under what circumstances its algorithms deliver content to some users but not to others"—the knowledge element required under the existing California tort law of aiding and abetting will often be satisfied.

Say a platform's algorithm delivers content to users that contains threats that are based on political affiliation, race, religion, sexual orientation, etc., just because users have shown an interest in the content (not because of any purposeful desire to promote such threatening content in general). The platform may be liable, on the theory that it is "deemed to have actual knowledge" of what its algorithms do. Likewise if the posts contain threats aimed at interfering with free speech, free exercise of religion, and other rights. And of course if platforms are required (on pain of liability) to take down illegal threats, they will likely also take down other material that they're worried might be seen as threatening by a future plaintiff, judge, and jury.

I'm pretty sure that such liability will be precluded by 47 U.S.C. § 230. Courts have held that, under § 230, online providers are immune from liability for speech posted by their users, even under an aiding and abetting theory, unless they deliberately craft their sites to help promote illegal conduct. Here's an example, from Wozniak v. YouTube, LLC (Cal. App. 2024) (yes, Apple co-founder Steve Wozniak):

Here, plaintiffs have not alleged that defendants undertook any … acts to actively and specifically aid the illegal behavior. Instead, they allege only that YouTube's neutral algorithm results in recommending the scam videos to certain targeted users. For instance, the [Complaint] alleges that "YouTube's state-of-the-art algorithm tailors its recommended videos to its users based on a variety of personal information and data that YOUTUBE and GOOGLE collect about their users, including 'clicks, watch time, likes/dislikes, comments, freshness, and upload frequency.'" There is no allegation that YouTube has done anything more than develop and use a content-neutral algorithm.

Courts have consistently held that such neutral tools do not take an interactive computer service outside the scope of section 230 immunity. In Dyroff v. Ultimate Software Group, Inc. (9th Cir. 2019), for instance, the plaintiff was the family of a man who had died after using fentanyl-laced heroin, which he had acquired following communications on defendant's online messaging board. The plaintiff contended the messaging board created content because it "used features and functions, including algorithms, to analyze user posts … and recommend other user groups." The Ninth Circuit rejected the argument, holding that "[t]hese functions—recommendations and notifications—[were] tools meant to facilitate the communication and content of others," and were "not content in and of themselves."

The online message board employed neutral tools similar to the ones challenged by plaintiffs here, and there is no allegation that the algorithms treat the scam content differently than any other third party content. (Ibid.; see also Gonzalez, supra, 2 F.4th at p. 896 ["a website's use of content-neutral algorithms, without more, does not expose it to liability for content posted by a third party"]; Roommates, supra, 521 F.3d at p. 1171 [website not transformed into content creator by virtue of supplying neutral tools that deliver content in response to user inputs]; cf. Liapes, supra, 95 Cal.App.5th at p. 929 [Facebook's tools were not neutral—rather than merely proliferate and disseminate content as a publisher, they created, shaped, and developed content by requiring users to provide information used to contribute to discriminatory unlawfulness].)

The last-cited case, Liapes, helps illustrate where § 230 immunity might not apply: There, Facebook was held potentially liable for discrimination because "It designed and created an advertising system, including the Audience Selection tool, that allowed insurance companies to target their ads based on certain characteristics, such as gender and age." But absent such specific design decisions that promote forbidden discriminatory advertising, § 230 prohibits liability that's based on simply deploying a "neutral algorithm [that] results in recommending [certain material] to certain targeted users" "based on a variety of personal information and data that" the platform collects about users, "including 'clicks, watch time, likes/dislikes, comments, freshness, and upload frequency.'"

So if I'm right, § 230 will preclude California law from imposing such liability on platforms. But it does appear that the California Legislature wants to impose that liability.

The post California Wants to Hold Social Media Platforms Liable for User Posts Containing Bias- and Political-Hostility-Motivated Threats appeared first on Reason.com.

[Eugene Volokh] No Pseudonymity for Man Challenging NFL's Alleged Discrimination Against Black Players and Coaching Candidates

From Chief Judge James Boasberg (D.D.C.) yesterday in Doe v. NFL:

Plaintiff John Doe says that he is a Black man who has looked on with disgust, humiliation, and anxiety as the National Football League has discriminated against Black quarterbacks and coaching candidates and meted out harsher discipline to Black players.

He has finally had enough. So he is suing the league for violating the DC Human Rights Act, the DC Consumer Protection Act, DC's law barring businesses from racial discrimination, Title VII, and the Sherman and Clayton Acts, as well as negligence and intentional infliction of emotional distress. He wants declaratory and injunctive relief, plus $100 million in compensatory damages and $500 million in punitive damages. And he now moves to sue under a pseudonym. The Court will deny the Motion….

Generally, a complaint must identify the plaintiffs. See Fed. R. Civ. P. 10(a); [Local Civil Rules] 5.1(c)(1), 11.1. That requirement reflects the "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' and, more specifically, from the tradition of open judicial proceedings." … Plaintiff has not shown that his privacy interests outweigh the public's presumptive and substantial interest in learning his identity.

Start with whether this case concerns "a matter of a sensitive and highly personal nature." Plaintiff says that it does because allegations of racial discrimination are necessarily sensitive and personal. But he does not allege that the NFL discriminated against him. Instead, his Complaint collects examples of alleged discrimination against other people: NFL players and coaches. Those incidents — from the Colts starting White quarterback Daniel Jones over Black backup Anthony Richardson to the Commanders hiring White head-coaching candidate Dan Quinn over Black candidate Eric Bienemy — are all matters of public record, announced at press conferences and blasted out through ESPN alerts. They may be controversial. They are not sensitive and personal.

Next, "whether identification poses a risk of retaliatory physical or mental harm." Even when a plaintiff fears retaliation, this factor weighs against pseudonymity if those fears are speculative and unsubstantiated. Such is the case here. Plaintiff claims that the NFL commands enough money, power, and attention to hurt him, but he gives no reason to think that it would. Indeed, Plaintiff does not seem to be an NFL player, coach, or employee, so it is not clear how the league could retaliate against him even if it wanted to.

Instead, he claims that fellow Black men Colin Kaepernick and Deshaun Watson were threatened when they ran afoul of the NFL. Whether Plaintiff would attract the same public ire as those household names is sheer conjecture. His bare assertions that racial tensions show that any Black man who sues the NFL would face threats of violence are similarly speculative.

Turning to the ages of the people with relevant privacy interests, Plaintiff has three 17- year-old sons who are all striving for college football scholarships. Identifying Plaintiff might identify them, so this … favors pseudonymity … [but does] not tip the balance….

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[Josh Blackman] The Heritage Guide to the Constitution: Essay Nos. 51–75

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 51–75.

Essay No. 51: The Postal Clause —Robert G. NatelsonEssay No. 52: The Copyright And Patent Clause —Adam MossoffEssay No. 53: The Inferior Courts Clause —Judge David R. Stras & Andy HessickEssay No. 54: The Piracies And Felonies Clause —Eugene KontorovichEssay No. 55: The Offenses Against The Law Of Nations Clause —Eugene KontorovichEssay No. 56: The Declare War Clause —John C. YooEssay No. 57: The Federal Marque And Reprisal Clause —John C. YooEssay No. 58: The Captures Clause —John C. YooEssay No. 59: The Armies Clause —Judge Gregory E. Maggs & Robert LeiderEssay No. 60: The Navy Clause —Judge Gregory E. Maggs & Robert LeiderEssay No. 61: The Military Regulations Clause —Judge Gregory E. Maggs & Robert LeiderEssay No. 62: The Calling Forth The Militia Clause —Judge Gregory E. Maggs & Robert LeiderEssay No. 63: The Militia Organization Clause —Robert Leider & Judge Gregory E. MaggsEssay No. 64: The Federal District Clause —Lee A. CaseyEssay No. 65: The Federal Enclave Clause —Lee A. CaseyEssay No. 66: The Necessary And Proper Clause —Gary S. LawsonEssay No. 67: The Migration Or Importation Clause —Judge Patrick J. BumatayEssay No. 68: The Habeas Corpus Clause —Taylor MeehanEssay No. 69: The Federal Bill Of Attainder Clause —Matthew SteilenEssay No. 70: The Federal Ex Post Facto Clause —Evan C. ZoldanEssay No. 71: The Direct Taxes Clause —Andy GrewalEssay No. 72: The Export Taxation Clause —Chief Judge Matthew H. Solomson, Athanasius Sirilla, & Jacob B. ChefitzEssay No. 73: The Port Preference Clause —Nelson LundEssay No. 74: The Appropriations Clause —Thomas G. Hungar & Michael D. BoppEssay No. 75: The Federal Title Of Nobility Clause —Allyson N. Ho, Elizabeth A. Kiernan, & Michael A. Zarian

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