Eugene Volokh's Blog, page 46

[Eugene Volokh] When Can Lawyers Be Punished for "Undignified or Discourteous" Criticism of Judges?

["Miss Manners has much to commend her within a polite and respectful society, but we are not her enforcement division."]

From Kansas Supreme Court Justice Caleb Stegall's concurrence in the judgment yesterday in In the Matter of Suzanne Valdez:

Back in 2021 at the height of the COVID-19 pandemic, the respondent Suzanne Valdez, a publicly elected official—the Douglas County District Attorney—made some intemperate comments about the chief judge of the district. Now, years later, after countless news stories, public outcry, lawyers hired, weeks and months of investigations and hearings, and a subsequent election for Douglas County District Attorney at which the respondent was unseated in part because of these charges—here we are. Was it worth it? No, it was not….

From [the panel decision], we can easily deduce that none of Valdez' comments were proven to be untrue or made with reckless disregard as to their truth. This includes the two comments found to be "undignified or discourteous." Now, given my personal experience with Chief Judge McCabria, I find the entire litany of allegations leveled at him by Valdez to be silly at best and scurrilous at worst—but this is entirely beside the point. Can we really say that truthful statements (or statements that cannot be proven untrue) can still be unethical if they are discourteous? If a judge acts in an undignified manner, is commenting on his or her behavior unethical? See In re Clark (Kan. 2022) (Stegall, J., concurring) ("[The judge's] behavior was embarrassing, foolish, and grossly immoral ….").

I have said it before, but it bears repeating—the practice of law is not a finishing school for debutants preparing for their first dance. "'There's no crying in baseball!' So intoned Tom Hanks' character in the film A League of Their Own…. It is a message the Kansas bar and bench—and our Disciplinary Administrator's office—should consider." … "[I]t does the judicial branch no favors to present publicly with a collective glass chin." … Miss Manners has much to commend her within a polite and respectful society, but we are not her enforcement division.

This is not, however, what is most important about today's case. There is much more at stake—the beating heart of our democratic process—unconstrained political speech. There is a disturbing trend in our body politic to turn "ethics" into a political widow maker—a recently dislodged calcium deposit stalking the arterial system of our campaigns, elections, and government—threatening a blockage at any time. The rallying cry of, "You can't say that!" accompanied by looming threats of punishment is a kind of atherosclerosis—a narrowing of our political arteries—that I cannot countenance.

For it cannot pass our notice that this entire process was aimed squarely at punishing political speech. Even after (perhaps especially after) Valdez was acquitted by the panel of the most serious charges (and now, finally, is absolved of all guilt by this court), we cannot turn a blind eye to the reality that this attorney disciplinary process played a starring role in an important public election in Douglas County. Without question it impacted the outcome—if perhaps not the ultimate victor. At a minimum, it affected the point spread, as Valdez received only 9% of the vote in the Democratic primary.

Today, the majority finds that Valdez did not violate our ethics rules on what amounts to a technicality. That is, the majority has decided Valdez' comments were not made in the context of an actual legal or other adjudicative proceeding and therefore were not "degrading to a tribunal." I find this reasoning to be a pedantic bit of couper les cheveux en quatre [i.e., hair-splitting]—the distinction drawn is overly fine. I agree with Justice Rosen's dissent that certainly the subject matter of the spat between Valdez and Chief Judge McCabria concerned the "tribunal" of the Douglas County District Court. The issue, after all, was how and when trials were to be conducted during the pandemic. So while I concur in the outcome reached by the majority—that Valdez violated none of our Rules of Professional Conduct—my reasoning differs dramatically.

To put my conclusion bluntly, I would find that KRPC 3.5(d) and KRPC 8.2(a) do not apply to political speech. And while I will discuss First Amendment law below, I ground my decision not in a constitutional prohibition, but rather squarely in this court's discretionary power to make substantive policy when enforcing our Rules. That is, I would expressly limit the application of KRPC 3.5(d) and KRPC 8.2(a) not because the First Amendment requires this—though it may—but because such a policy is necessary to vindicate the free speech values that undergird and inform both the First Amendment and the functioning of our democratic system of self-government.

Let's begin our discussion with a cautionary tale.

The modern record is replete with current politician/lawyers who are critical of the judiciary in "discourteous" ways. Politicians from both sides of the political aisle (who also happen to be lawyers subject to state ethics codes) routinely criticize both judges and their opinions. These range from relatively mild critiques to the more provocative. See Myers & Fox, Utah Sen. Mike Lee introduces bill to stop district court judges from "usurping" Pres. Trump, ABC4 (Mar. 28, 2025) (quoting Senator Lee as saying: " 'America's government cannot function if the legitimate orders of our Commander in Chief can be overridden at the whim of a single district court judge.' "); Goldsberry, Tom Cotton calls upon Supreme Court to "rein in rogue federal judges," Washington Examiner (Apr. 21, 2025) (quoting Senator Cotton as saying: " 'This far-left Obama judge in Maryland is now demanding the president somehow sit down with a foreign leader and come to terms to return an MS-13 wife beater.' "); Blanchet, Adam Schiff Issues Stark Warning For Supreme Court On Trump's "Bogus" Immunity Claim, HuffPost (Mar. 18, 2024) (quoting Senator Schiff as saying: "It would be a terrible decision … it would also just further discredit this partisan and reactionary court."); Robinson, Why Did Texas Sen. Ted Cruz Criticize Judge Sonia Sotomayor During Senate Hearing on Universal Injunctions?, Texas Lawyer (Feb. 25, 2020) (quoting Senator Cruz referring to a Justice Sotomayor dissent as " 'an arsonist complaining about the noise from the fire trucks' "); Crawford, Alito Winces as Obama Slams Supreme Court Ruling, CBS News (Jan. 28, 2010) (describing President Obama's critique of Citizens United v. F.E.C. (2010), in his State of the Union Address).

So back in 2020 when Senate Minority Leader Chuck Schumer gave a fiery speech on the steps of the U.S. Supreme Court expressing his view of the Court revisiting Roe v. Wade (1973), his rhetoric was unrestrained. Senator Schumer called out two justices in particular, stating "Justice Kavanaugh and Justice Gorsuch, you have unleashed a whirlwind, and you will pay the price." And these comments resulted in a complaint filed with the New York Attorney Grievance Committee. The complaint argued that Senator Schumer had violated Rule 8.4 of the Rules of Professional Conduct for the New York State Unified Court System, which prohibits engaging in conduct that is prejudicial to the administration of justice.

But commentators on both the left and the right nevertheless expressed doubt that such rhetoric merited going after Senator Schumer's license to practice law. For its part, the New York Attorney Grievance Committee declined to take any action against Senator Schumer, stating that

[w]hile these comments were certainly concerning, the Attorney Grievance Committee (AGC) is cautious about disciplining attorneys, whether local attorneys or public officials, for comments that may be protected by the First Amendment. In addition, the AGC is mindful not to wade into political controversies that would result in an endless onslaught of retaliatory complaints by opposing parties.

Senator Schumer later apologized and wryly observed: "I'm from Brooklyn. We speak in strong language."

Though Senator Schumer escaped reprisal, examples abound of lesser-known lawyers who find themselves in hot ethical water for speaking "Brooklynese." For example, a Florida attorney agreed to settle his disciplinary case with a public reprimand after calling a judge an "evil, unfair witch" in his blog. And one can understand why the attorney chose to settle his case after one sees how other disciplinary cases can go in similar circumstances. See, e.g., Cleveland Metro. Bar Assn. v. Morton (Ohio 2021) (attorney suspended for one year for failing to act with "dignity and civility" following accusations that judges apply "politics, not law" in deciding tax valuation cases); In re Marshall (N.M. 2023) (attorney was indefinitely suspended after accusing a judge of intentionally failing to disclose a previous relationship with a party and ignoring the law in order to "fix" the case); Matter of Dinhofer (N.Y. App. Div. 1999) (attorney suspended for three months for comments during a telephone conference such as "[t]his is blatantly corrupt. You are sticking it to me every way you can.").

Contrary to what some think, judicial sensitivity to criticisms and discourtesies does not enhance respect for the judiciary—it undermines it. "The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion." Indeed, because "it is a prized American privilege to speak one's mind"—even when not in "perfect good taste"—any "enforced silence … in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." …

The caselaw suggests that while there may be a judicial awareness of the need to tread carefully around the intersection of speech and ethics, some courts feel hamstrung by the language of most ethics codes which spring from the model rules promulgated by the American Bar Association (ABA). The situation is exacerbated by the infusion of subjectivity into the actual text of the rules. How one understands words and concepts like "discourteous" are so conditioned by personal values, upbringing, culture, socio-economic status, and the like, as to be virtually impossible to enforce in an objective and even-handed way. These are the hallmarks of a legal milieu that will inexorably lead to arbitrary enforcement decisions, double standards, and punishments meted out to unpopular people and opinions.

Moreover, the ABA has in recent years forfeited its reputation as a neutral player in the realm of attorney ethics. We owe its conception of "discourteous" behavior no deference. I am reminded of the recent kerfuffle created by the ABA a few years ago when it attempted to bully states into adopting a revised version of its Model Rule 8.4(g), which would have made it unethical to engage in speech judged to be "harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The ABA made it clear that among the conduct prohibited by this change was "harmful verbal … conduct that manifests bias or prejudice towards others" and reached so far as to sweep up speech occurring in "social activities" if they were somehow related to the practice of law.

This spawned a widespread outcry across the legal profession as commentators sounded the alarm—the ABA was trying to regulate lawyer speech at an unprecedented level…. Ironically, Valdez was regarded as an expert on attorney ethics at the time and presented numerous CLEs on the very topic at hand—threats to free speech coming in the form of ethical rules. In them, she warned of the constitutional implications of the proposed rule, observing that it potentially "targets religious beliefs and expression by attorneys, … punish[es] attorneys for membership in disfavored groups, … [and] may raise substantial free speech concerns if applied to statements made by attorneys in connection with their practice of law.

While not directly relevant to today's case, this episode illuminates a powerful anti-speech movement within the bar—and an overweening desire among establishment attorneys to police the thought and speech lives of their fellow lawyers. As the institution constitutionally charged with setting ethics policy in Kansas, this court has already wisely rejected such a path.

While black letter First Amendment law may permit the kind of punishment sought by the ODA and proposed by the panel in this case, this is far from certain. I take no position on this question in today's case because even if Valdez' speech had no formal constitutional protection, we must still evaluate whether—as a matter of Kansas policy—punishing such speech is wise or desirable….

Protecting "public confidence in the legal system" does not require dogmatic silence by attorneys working in that system—especially when attorneys are bringing attention to perceived problems and inequities. The practice of law, by nature, is adversarial. Punishing attorneys for voicing their criticisms serves to undermine the rule of law rather than bolster it and creates the impression that "judges can dish but they can't take." "The First Amendment is not abridged for the benefit of the Brotherhood of the Robe." …

[The] gap between the kinds of speech restrictions allowed by courts conducting a strict constitutional review and the values courts are inclined to protect has not gone unnoticed. "The difference between free speech values and First Amendment doctrine is particularly pronounced when it comes to lawyers because of the considerable leeway the Court has offered to states in the regulation of attorney speech." If we must choose, long experience and prudence counsel that when setting speech policy for lawyers in Kansas, the values undergirding the First Amendment must control even over its black letter application. So when we exercise our constitutional discretion to limn the boundaries of attorney ethics in Kansas, we must not hyperregulate the very First Amendment protections that attorneys and judges are sworn to uphold simply because an attorney's own speech is at issue.

Without a clear statement on these principles from this court, I fear the continuing chill on attorney speech in Kansas by the well-meaning but aggressive action of the ODA to take up the cause of bruised judicial feelings and punish all manner of "discourtesies." To which I can only say, "Stop it!" Kansas judges are not so delicate. We will not wilt in the face of lawyer criticism—or even an uncouth comment or name-calling. We retain the traditional tools of regulating our courtrooms through contempt or Rule 11 proceedings.

And most importantly, public trust in the legitimacy of the rule of law can only be harmed by a defensive posture reminiscent of petty gangsters and warlords surrounded by enforcers. In a mature democracy, fragility in leadership sows only distrust. We can and should do better.

To very briefly summarize the long fact discussion from the much narrower majority opinion, in Nov. 2020, the Chief Judge arranged certain plans for holding jury trials during COVID, and said that he had "consulted with all of the stakeholders." D.A. Valdez responded with a press release saying,

The District Attorney's Office was not consulted and is undoubtedly a stakeholder. Importantly, had I or my office been consulted by the District Court, we would have shared our concerns about trials during the COVID pandemic, as well as trying high level felony cases at the Douglas County Fairgrounds in a makeshift courthouse where security is not guaranteed.

She then sent a text message to the Chief Judge:

You should be ashamed of yourself.
We were Told, not consulted.
The only reason you commented is because I am a Hispanic female I [sic]a position of power.
I will she (sic) the light of truth
I will shine the light of truth
I will shine the light of truth on everything

She issued another press release saying,

Chief Judge McCabria did not ask for my advice or for my input regarding the April jury trial plan. To suggest that he and I met personally or consulted about the jury trial plan, or that he invited or asked for my or my office's input is simply false. It is disappointing that Chief Judge McCabria has misrepresented my communication with him about the legitimate public safety concerns I have about trying serious high level felony jury trials at the Fairgrounds. Unfortunately, this is yet another example of how an outspoken and honest woman is mischaracterized as untruthful by a male in power.

And she posted the second press release on her own Facebook page and the D.A.'s office Facebook page, together with this:

Women of the world-be prepared! If you are hardworking, outspoken, honest, AND in a position of authority, the INSECURE MAN will try to tear you down. Not me, says I! [Fist bump emoji and strong arm emoji followed the statement]

This led to a bar investigation of Valdez, and the bar hearing panel recommended formally censuring her on the grounds that her statements violated Kansas Rule of Professional Conduct 3.5(d), "A lawyer shall not … engage in undignified or discourteous conduct degrading to a tribunal":

Respondent engaged in undignified or discourteous conduct degrading to Judge McCabria and the legal system when she publicly called Judge McCabria's credibility into question in her second press release. In addition, Respondent's Facebook post about an "insecure man" was clearly directed at Judge McCabria. Respondent's comments about Judge McCabria were not made in the course of a zealous attorney making a point to a judge about a factual finding or ruling. Rather, they were personal comments that would be inappropriate even during a closed-door meeting with a judge. In this case, the undignified and discourteous comments were made public, published in a newspaper, and placed on social media. Respondent exhibited a reckless disregard for the negative impact her comments would have on others and the judicial system.

The majority (Chief Justice Marla Luckert, Justices Dan Biles and Melissa Taylor Standridge, and Senior Judge Meryl Wilson) concluded that Rule 3.5(d)'s reference to "tribunal" meant that the Rule only "prohibit[s] a lawyer from engaging in undignified or discourteous conduct degrading to a court or other arbiter when the court or other arbiter is acting in an adjudicative capacity." Because Valdez's criticisms were aimed at the Chief Judge's administrative actions, they were not covered by the rule. (Justice Eric Rosen and Senior Judge Nancy E. Parrish dissented, arguing that Rule 3.5(d) does apply to "undignified or discourteous" criticism of a court's "administrative decisions.")

Stephen Angermayer (Angermayer Law, L.L.C.) argued on Valdez's behalf, as did Valdez herself. Thanks to Lance Kinzer for the pointer.

The post When Can Lawyers Be Punished for "Undignified or Discourteous" Criticism of Judges? appeared first on Reason.com.

[Eugene Volokh] No Carry Permit Because Applicant's E-Mails to Government Cast Doubt on His "Ability to Engage in Coherent and Rational Thinking"

An excerpt from the long opinion earlier this week in In re Application for a Permit to Carry a Handgun by R.R., by N.J. Appellate Division Judges Joseph Marczyk and James Paganelli:

Detective Berry … testified regarding various emails petitioner sent to the Sayreville clerk referring to the "Blood of Christ" and an affidavit submitted by petitioner to Sayreville regarding "[o]ne's [e]ntire [z]ygote/[p]ellucid [m]embrane as the [s]ingular '[h]istorical & [p]resent, [r]eligious & [s]cientific, [n]ative & [c]ustomary, [t]ruth & [m]atter of [f]act' [p]roving [o]ne's [p]ersonal, [p]rivate, and [c]onfidential [p]roperty/[p]aramount [e]quity '[f]ound' within [o]ne's [o]riginal [b]iological /DNA [b]irthday '[c]ake' a.k.a. [o]ne's '[b]aggage and [e]ffects' a.k.a. [o]ne's [p]lacenta." Detective Berry testified he did not understand what petitioner was discussing, and the communications were "kind of rambling" and had nothing to do with petitioner's tax issues.

Detective Berry further testified regarding: petitioner's referencing credit as a "figment of the imagination," ballot harvesting schemes, the banking system being owned by the "cult," a Wisconsin election being rigged by dictators in Syria and Korea, a governor's handling of a teacher shortage, and references to a conservative song writer. Detective Berry stated that in his "training and experience," he never saw "an individual correspond with a government body" in this manner and that petitioner was "not really addressing any specific issue."

In one email, petitioner noted the SPD Chief was married and named his wife and his children. Detective Berry testified it appeared petitioner "cut and paste[d]" this information from the Chief's biography on the SPD's website. Detective Berry referenced this communication in his denial letter. He testified "the way that [petitioner] was interacting regarding his permit [application]" caused him concern, as petitioner "was demanding answers" and "wasn't letting the investigative process play out." He also testified petitioner's references to the Chief's family caused him concern.

Detective Berry conceded on cross-examination that Sayreville never told petitioner to stop sending emails. He also acknowledged petitioner was previously approved for a firearms purchaser identification card and had obtained permits to purchase a handgun as recently as 2022. He also testified there was no evidence petitioner had threatened anyone with violence or had any documented mental health issues.

Petitioner testified he is a retired electrician and has owned firearms since 1980. When asked why he sent the numerous emails and documents to Sayreville, petitioner stated they were intended "[t]o notice" Sayreville of "correcting the record," and that his references to the blood of Christ referred to his "religious and spiritual belief[s]."

Petitioner's counsel objected to petitioner having to "explain his religious beliefs." The court overruled the objection. The following colloquy took place between the prosecutor and petitioner:

Q: Why did you reference the blood of Christ in that --

A: Okay. My belief and according to our government bill of rights, I have the right to whatever religion I want. In my case it's Catholicism …. I've gone through all the teachings of the Catholic church.

And in the Catholic church it says that Jesus Christ died on the cross for our sins, which he gave blood….

… [B]y doing so, by God giving his son, that all mankind is relieved of sin.

… Sin is all debt. Any debt…. [A]ll sin is done away with.

Q: … So you put that into a document that you intended to persuade all these people that were copied on it and it's directed to. What was the purpose in trying to persuade those people? What were you trying to do?

A: Correct the record.

Q: Correct the record about what? That you overpaid your taxes? ….

A: Overage. To clarify the overage….

Q: Where in this document does it talk about overage and the amounts of money that you went over? And outside of using it to discuss zygotes, placentas, birthday cakes, DNA, where does it say in here the amounts that you … overpaid … and how it could be accounted for? Where does it say that? ….

A: By the affidavit that I sent.

Q: Can you point out to us where in this document you discuss the overage?

A: Not this document, but the [ten] before it.

Q: Then what was the purpose of this document? … Talking about zygotes and things of that nature? Placentas and DNA and birthday cake and the blood of Christ.

A: It was to educate people … in general, along with filing it into the court record ….

Q: Educate people how in terms of your issue that you had? ….

A: To inform these people … of the case … for presenting that document to the court ….

Q: And you think that somehow writing dozens of pages about zygotes and placentas and the blood of Christ would have somehow furthered your cause in terms of getting your money back[?]

A: It's my religious belief and the ultimate aim is that God, through his son ….

Q: Okay. I'm not asking you about your religious beliefs. I'm asking you how … did this address the specific issue that you had? ….

Q: What does a zygote have to do with your tax issue?

A: It has to do with the blood of Christ and the soul and my religious belief, which you're protesting against it when I applied it.

Q: I'm not protesting anything against your religious belief. I'm asking you how you apply your religious beliefs …. How does this document further your argument?

A: This document relates to the affidavit which relates to the zygote which God ….

… My interpretation of God, the Bible, and Jesus Christ and the transactions they acquired through Pontius Pilate rubbing his hands of the authority that he had over Jesus Christ ….

Two people, hopefully married, sleep together. Each one supplies 23 chromosomes each. When the chromosomes meet, this is an event that may start life. Until God comes along and breathes the breath of life or the soul into the zygote or the chromosomes, it becomes a zygotes and attaches to the womb. Am I correct? …

So eventually, … this zygote becomes a baby, a child with a soul. And in the case with Jesus Christ, same thing happened. God gave his son to take away all the sins of humanity, including debt. Debt is a sin.

Q: Okay. You look at this document and … [w]ere you trying to get out of the foreclosure, or were you trying to get your money back with this document?

A: No, we were addressing the issue of … [o]verage…. We were trying to get the end result of what was owed and not owed, okay? And this was an education, along with filing it in the court … to correct the record….

Q: I mean, I guess … I don't understand your response ….

A: It's commonsense…. Commonsense and religion.

Petitioner was questioned about a July 29, 2023 fitness for firearms psychiatric evaluation conducted by Jeffrey Ilardi, M.D., a licensed psychiatrist. He noted that Dr. Ilardi performed a psychiatric evaluation and opined petitioner was "very stable, reliable, intelligent and pleasant." Dr. Ilardi further noted petitioner was "psychiatrically cleared," and he was an "appropriate" candidate for a "concealed carry permit." …

The State argued it was:

not here because [petitioner] was exercising his rights … to express himself in this way…. The issue is whether giving him a permit to carry would be contrary to the public's safety, health and welfare.

If you go through these documents, … they make little or no sense without any context. And even when [petitioner] was … trying to give context, it didn't make sense in terms of what he was trying to get across to [Sayreville]. It's easy to see how people reviewing his permit application would think that he had some mental health stability issues….

And … looking at [the email discussing] … zygotes and placentas and birthday cake …, it makes no sense … in terms of what he was trying to get across. And it speaks … to his … mental stability.

And I understand that he has a permit to purchase and he's got a firearms ID card. But there's a difference when someone has a gun in their house to protect themselves and … going out and interacting with the public, with members of the government, with people that he had disputes with.

We affirm substantially for the reasons expressed by the trial court…. The trial court deemed petitioner's email correspondence with Sayreville "concerning," "incomprehensible[,] and incoherent." {We observe petitioner's emails also contained references to: the "Use of the Period After the 'S' in Harry S. Truman's Name"; excerpts from Charles Dickens' novel David Copperfield; the Encyclical of Pope Leo XIII on Capital and Labor; and an article noting the "[t]he CIA ha[d] been taken over by [the] NSA. Basically, everything created by the UK Royals/Crown/Rothschilds was now null [and] void."} It was unconvinced based on those communications—coupled with petitioner's testimony—that petitioner "could formulate the kind of rational thinking expected of individuals permitted to publicly carry firearms." It further held petitioner's "ability to engage in coherent and rational[ ] thinking" had "lessened or been compromised to the extent that his ability to publicly carry a firearm is rightfully a health and safety concern for both [petitioner] and the public."

We conclude the court appropriately analyzed petitioner's communications and testimony, and it did not err in finding that granting petitioner's application was not in the best interest of the public health, safety, and welfare under N.J.S.A. 2C:58-3(c)(5)….

Although petitioner presented a report from Dr. Ilardi, who opined petitioner was "psychiatrically stable" and "an appropriate candidate" for a concealed carry permit, the court was not compelled to follow the conclusions of petitioner's expert…. Despite Dr. Ilardi's conclusions, the court observed the illogical, convoluted emails—containing references to irrelevant historical, biological, and literary topics—together with petitioner's testimony, demonstrated petitioner was unable to "engage in coherent and rational[ ] thinking." These emails were not addressed in Dr. Ilardi's report….

Assistant Prosecutor Nancy A. Hulett represents the government.

The post No Carry Permit Because Applicant's E-Mails to Government Cast Doubt on His "Ability to Engage in Coherent and Rational Thinking" appeared first on Reason.com.

[Ilya Somin] Federal Circuit Rules Against Trump's Massive IEEPA Tariffs in Our Case Challenging Them

[In a 7-4 ruling, the en banc court upheld trial court ruling against all the challenged tariffs. The scope of the injunction against them remains to be determined.]

NA

Today the US Court of Appeals for the Federal Circuit ruled against President Trump's massive "Liberation Day" tariffs in VOS Selections v. Trump, a case filed by Liberty Justice Center and myself on behalf of five small US businesses (we have since been joined by prominent Supreme Court litigators Michael McConnell and Neal Katyal; Neal skillfully conducted the oral argument before the Federal Circuit). The ruling also covers the case filed by twelve states led by Oregon; they prevailed, as well. On these points, a 7-4 majority of the en banc Federal Circuit affirmed the earlier trial court decision issued by the Court of International Trade. The court also remanded the issue of how broad the injunction against the tariffs should be to the Court of International Trade. That litigation is, however, postponed until October 14, to give the government a chance to ask the Supreme Court to review the case.

The majority concluded that the tariffs in question are not authorized by the International Emergency Economic Powers Act of 1977  (IEEPA), and that the major questions doctrine precludes interpreting IEEPA to give the president the virtually unlimited tariff authority he claims.

The majority, concurring and dissenting opinions are 127 pages long, and I will not attempt to cover everything in them here. I will merely highlight some key points.

Here is an excerpt from the per curiam majority decision (issued in the name of all seven majority judges), explaining why IEEPA doesn't authorize the tariffs imposed by the president:

[I]n each statute delegating tariff power to the President, Congress has provided specific substantive limitations and procedural guidelines to be followed in imposing any such tariffs. It seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs. The statute neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President's power to impose tariffs….

[W]henever Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs. This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution; when Congress delegates this power in the first instance, it does so clearly and unambiguously…

Contrary to the Government's assertion, the mere authorization to "regulate" does not in and of itself imply the authority to impose tariffs. The power to "regulate" has long been understood to be distinct from the power to "tax." In fact, the Constitution vests these authorities in Congress separately. U.S. Const. art. I, § 8 cl. 1, 3; see also Gibbons v. Ogden, 22 U.S. 1, 201 (1824) ("It is, that all duties, imposts, and excises, shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is
given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers these powers as
substantive, and distinct from each other."); Nat'l Fed'n. of Indep. Bus. v. Sebelius, 567 U.S. 519, 552, 567 (2012) (holding that the individual mandate provision of the Patient
Protection and Affordable Care Act was a permissible exercise of Congress's taxing power but exceeded Congress's power to regulate commerce). While Congress may use its taxing power in a manner that has a regulatory effect,… the power to tax is not always incident to the power to regulate…

Upon declaring an emergency under IEEPA, a President may, in relevant part, "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit" the "importation or exportation of . . . any property in which any foreign country or a national thereof has any interest." 50 U.S.C. § 1702(a)(1)(B). "Regulate" must be read in the context of these other verbs, none of which involve monetary actions or suggest the power to tax or impose tariffs…

The majority also emphasized that the government's claim to unlimited tariff authority goes against the major questions doctrine:

The Government's interpretation of IEEPA as providing the President power to impose unlimited tariffs also runs afoul of the major questions doctrine. See, e.g., Oral Arg.16at 19:28–19:39 (the Government stating "there is no limit on the cap of the tariff in IEEPA itself"). The Supreme Court has explained that the doctrine applies in "cases in
which the 'history and the breadth of the authority . . . asserted'" by the Government entails vast "economic and political significance."West Virginia v. EPA, 597 U.S. 697,
721 (2022)…. In such cases, there may be a "'reason to hesitate before concluding that Congress' meant to confer such authority." Id…. When the major questions doctrine is
implicated, the Government must point to "clear congressional authorization" for that asserted power. Id. at 732….

The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both "unheralded" and "transformative." Id. at 722, 724; see also
id. at 725 ("[J]ust as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.)" ….

Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently. But not once before has a President asserted his authority under IEEPA to impose tariffs on imports or adjust the rates thereof. Rather, presidents have typically invoked IEEPA to restrict financial transactions with specific countries or entities that the President has determined pose an acute threat to the country's interests….

Additionally,…  tariffs are a core Congressional power. The "basic and consequential
tradeoffs" that are inherent in the President's decision to mpose the Trafficking and Reciprocal Tariffs "are ones that Congress would likely have intended for itself." Nebraska, 600 U.S. at 506 (quoting West Virginia, 597 U.S. at 730). Moreover, the United States imports more than $4 trillion of goods annually; these imports account for 14 percent of the nation's economy. J.A. 215. The Government itself has claimed that the Reciprocal Tariffs will "generate between $2.3 trillion and $3.3 trillion over the
budget window…." The Executive's use of tariffs qualifies as a decision of vast economic and political significance, so the Government must "point to clear
congressional authorization" for its interpretation of IEEPA. West Virginia, 597 U.S. at 723…

For the reasons discussed above, we discern no clear congressional authorization by IEEPA for tariffs of the magnitude of the Reciprocal Tariffs and Trafficking Tariffs.
Reading the phrase "regulate . . . importation" to include imposing these tariffs is "a wafer-thin reed on which to rest such sweeping power." Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 594 U.S. 758, 765 (2021)

The majority goes on to reject claims that the major questions doctrine does not apply to delegations to the president (their reasoning is similar to that which I outlined here). It also rejects the argument that the doctrine does not apply because tariffs are a "foreign affairs" power.

The majority did not address whether the government's claim of unlimited tariff authority would also run afoul of the nondelegation doctrine, which limits the extent to which Congress can delegate legislative authority to the executive. But it does note the significance of the fact that tariffs are a "core congressional power."

The majority explicitly chose not resolve the issue of whether IEEPA can be used to impose any tariffs at all. But their reasoning suggests either that such imposition is indeed categorically barred, or that any tariff authority that exists under IEEPA is strictly limited.

The concurring opinion, written by Judge Cunningham, on behalf of four judges goes further than the majority. It concludes that IEEPA does not authorize any tariffs at all. It also indicates that the sort of sweeping delegation of tariff authority claimed by the president here is precluded by the nondelegation doctrine, which limits the extent to which Congress can delegate legislative power to the president, relying in part on the Supreme Court's recent ruling in FCC v. Consumers' Research (which was helpful to our case in a number of ways):

The Government's interpretation of IEEPA would render it an unconstitutional delegation. Because taxation authority constitutionally rests with Congress, any delegation of that authority to the President must at least set out an intelligible principle that includes "both 'the general policy'" that the President "must pursue and 'the boundaries of [its] delegated authority.'" FCC v. Consumers' Rsch., 145 S. Ct. 2482, 2497 (2025)… Similarly, Congress must "provide[ ] sufficient standards to enable both 'the courts and the public [to] ascertain'" whether the President "has followed the law." Id…. Because this is undoubtedly a case that "affect[s] the entire national economy," the "'guidance' needed is greater . . . than when [Congress] addresses a narrow, technical issue." Id…. For taxes, both "quantitative" and "qualitative limits on how much money" the President can raise are permissible, but it would "pose a constitutional problem" if the "statute gives the [executive branch] power, all on its own, to raise [a] hypothetical $5 trillion" with no "ceiling." Id. at 2501–02.

The Government's interpretation of IEEPA would be a functionally limitless delegation of Congressional taxation authority.

The majority did however vacate the trial court's universal injunction against the tariffs, and remand the issue of the scope of the injunction to the trial court to determine how broad it should be, in light of the Supreme Court's recent ruling restricting universal injunctions, in Trump v. CASA. We have a variety of arguments as to why a broad injunction is appropriate in this case, even after CASA (see relevant section of our brief).

The dissent by Judge Taranto, on behalf of himself and three other judges, largely accepts many of the government's arguments. I won't go over them in detail here, as this post is already too long. Obviously, I have responded to these arguments in some detail in previous writings, and our legal team also did so in our briefs.

The court has, for the moment, stayed its ruling until October 14, to give the government a chance to ask the Supreme Court to review the decision. We shall see what the justices choose to do.

The post Federal Circuit Rules Against Trump's Massive IEEPA Tariffs in Our Case Challenging Them appeared first on Reason.com.

[Eugene Volokh] Friday Open Thread

[What's on your mind? (Other than the thread was late, sorry about that.)]

I'll also be experimenting with a Sunday Open Thread this weekend.

The post Friday Open Thread appeared first on Reason.com.

[Eugene Volokh] Death Doulas Have First Amendment Right to Advise Clients Without Having to Get Funeral Services License

["[Indiana's] approach furthers the state's interests the way an atom bomb would further the eradication of a residential ant infestation."]

From Judge Ilana Rovner, joined by Judges Candace Jackson-Akiwume and Nancy Maldonado, in yesterday's Richwine v. Matuszak:

Through her business, Death Done Differently, Lauren Richwine offers services as a death doula. In her death doula capacity, Richwine discusses with her clients how they want to be remembered after death, helps clients write letters to loved ones, and provides emotional support to the dying. Richwine teaches families how to support the dying and, after an individual dies, she helps the survivors determine a funeral program, select services at the funeral home of their choice, and, under the supervision of a licensed funeral director, she verbally advises the survivors about the moving, bathing, and dressing of the deceased. She also attends the funeral. In addition to these services, Richwine educates her community and mentors other death doulas. Richwine is not a licensed funeral director, a fact her website mentions, but she performs her duties "in conjunction with and under the supervision of a licensed funeral director." …

Indiana demanded that Richwine stop, because an Indiana statute required a funeral services license to engage in much of this behavior; but this, the Seventh Circuit held, violated the First Amendment:

[T]he statute restricts the "practice of funeral service," which includes "the counseling of individuals concerning methods and alternatives for the final disposition of human remains." As applied to the plaintiffs, Indiana claims that a variety of speech-based activities constitute the unauthorized practice of funeral services. These activities include, but are not limited to, discussing options for the final disposition of human remains, including traditional burial, green burial, or cremation; helping survivors decide what should be included in the funeral program; supporting survivors while they pick products and services at the funeral home; and reviewing the funeral home's price list….

The statute clearly burdens speech that is protected by the First Amendment. That the plaintiffs' speech is subject to some level of protection is not in dispute. Even though the parties vigorously dispute which level of scrutiny should apply, we find no need to determine whether the statute should be subject to strict or intermediate scrutiny because, even under intermediate scrutiny, the statute fails to pass constitutional muster as applied to Richwine and Death Done Differently, based on the interests articulated by the state….

"A statute survives intermediate scrutiny if it 'advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.'" "There must be a reasonably close fit between the law's means and its ends […] though perfect calibration is not required." "[B]y demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily sacrificing speech for efficiency." Because the plaintiffs challenge the statute as applied, we focus only on the facts and circumstances of this case and do not opine as to whether another scenario would warrant a different outcome.

Here, the state claims that the statute furthers the following interests: 1) preventing the spread of infectious and contagious diseases from human remains; 2) protecting general health, public safety, and the environment; and 3) consumer protection. The state argues that, by restricting who can counsel individuals on the final disposition of human remains, the statute furthers each of these interests. We do not doubt that—in the abstract—the state has an interest in protecting the public and the environment from disease and fraud. However, the method by which the state furthers these interests must not mean that "a substantial portion of the burden on speech does not serve to advance its goals." As applied to the plaintiffs, the statute prevents a wide range of speech activities, including helping survivors determine what music they want played at their loved one's funeral.

This approach furthers the state's interests the way an atom bomb would further the eradication of a residential ant infestation. It goes much too far. We do not see how preventing the plaintiffs from telling a client about his or her options for the final disposition of their loved one's remains furthers the state's professed interests. The plaintiffs do not claim that they can perform a cremation, a green burial, or a traditional funeral, nor does the state argue that they counsel clients on how to do these things themselves. Indeed, the plaintiffs specify that they do not "perform any services that funeral directors are licensed to direct such as body care, death certificate filing, transportation, or making arrangements" and that their clients must "hire a funeral director."

The state does not explain to us how, under these circumstances, a consumer learning from Richwine or Death Done Differently that green burial is an option for the final disposition of human remains poses a threat to the consumer or the public. "[I]nformation is not in itself harmful […] people will perceive their own best interests if only they are well enough informed, and […] the best means to that end is to open the channels of communication rather than to close them." Thus, to the extent that the state wants to prevent its citizens' access to this information about their options, that is the very type of overregulation that the First Amendment requires us to view with heavy skepticism….

Similarly, we do not see how the statute furthers the state's interest in consumer protection by depriving its citizens of the opportunity to have a neutral third party assist survivors in selecting which items and services to purchase from a funeral home. The plaintiffs' services protect consumers who are likely to benefit from the perspective of an individual who has no financial stake in the purchase. Contrary to the state's assertion, the plaintiffs are not providing the same service as the funeral home. Funeral homes have a financial stake in the purchases customers make. The plaintiffs have none. Both Consumer Reports Magazine and car dealership salespeople help car shoppers select cars, but no one would claim that they provide the same service.

Finally, we fail to see any connection between preventing the plaintiffs from helping survivors determine how to integrate their loved one's biographical information, preferred music, readings, religious practices and other programming into funerals and the state's professed interests. Although a funeral director could provide the same service, if a survivor would prefer the plaintiffs' help to that of a funeral director, then we see no harm in permitting them to make that choice….

We note that it makes no difference for our First Amendment analysis that the plaintiffs sell their advice to consumers. And as applied to the plaintiffs, the statute burdens almost the entirety of their professional speech. Even though the plaintiffs can engage in some other forms of speech, that does not demonstrate that the statute is well-tailored to achieve its interests, nor does it mean that the statute does not burden "substantially more speech than is necessary." All speech-related statutes leave some speech unregulated. Our inquiry is whether substantially more speech than necessary falls within the regulation's purview.

Some additional considerations further illustrate the poor fit between the statute's means and its ends. For example, no consumer has ever complained about Richwine or Death Done Differently, nor has the state been able to identify any harm that Richwine has caused as a death doula. Given that the plaintiffs make clear that the client must hire a licensed funeral director, the possible risk to consumers appears quite low. And, more perplexingly, other individuals or entities are permitted to "arrange[ ], supervise[ ], or conduct[ ] a religious or memorial service for a deceased individual" with the deceased individual's remains present so long as a licensed funeral director will complete the final disposition of human remains and obtain a burial permit.

As applied, the statute prevents the plaintiffs from telling clients that cremation is an option for the final disposition of a loved one's remains, that a survivor does not need to purchase the most expensive casket offered, or that reading a loved one's favorite poem would be a meaningful way to remember him or her. In light of the state's articulated interests and the statute as applied to the plaintiffs, the plaintiffs are likely to succeed on the merits of their First Amendment claim….

Benjamin Field, Christian W. Lansinger, and Jeffrey Rowes (Institute for Justice) and Stephen Jay Peters and David Ian Rubin (Kroger, Gardis & Regas) represent plaintiffs.

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[Eugene Volokh] California Law Restricting "Materially Deceptive" Election-Related Deepfakes Violates First Amendment

[So a federal judge just held.]

From today's decision by Judge John Mendez (E.D. Cal.) in Kohls v. Bonta:

AB 2839 regulates a broad spectrum of election-related content that is "materially deceptive" and permits any recipient of this content to sue for general or special damages. Cal. Elec. Code §§ 20012(b)(1), 20012(d). AB 2839 defines "materially deceptive" content as "audio or visual media that is intentionally digitally created or modified, … such that the content would falsely appear to a reasonable person to be an authentic record of the content depicted in the media." AB 2839 includes exceptions for candidates who make and share deepfake content of themselves and for satire or parody. In both these cases, the content must include a disclaimer that meets AB 2839's formatting requirements and must state that the content has been digitally manipulated….

The Court finds that AB 2839 discriminates based on content, viewpoint, and speaker and targets constitutionally protected speech.

The Court's preliminary injunction Order recognized that AB 2839 was likely unconstitutional because it was content-based. By its terms, AB 2839 prohibits "materially deceptive" (defined as content that would falsely appear to a reasonable person to be an authentic record) audio or visual communications that portray a candidate or elected official doing or saying things he or she didn't do or say and that are likely to harm a candidate's reputation or electoral prospects. The statute also punishes such altered content that depicts an "elections official" or "voting machine, ballot, voting site, or other property or equipment" that is "reasonably likely" to falsely "undermine confidence" in the outcome of an election contest. As evidenced by the statutory language, AB 2839 facially regulates based on content because the "law applies to particular speech because of the topic" —a political candidate, elected official, elections official, ballot, or voting mechanism. Moreover, it delineates acceptable and unacceptable speech based on its purported truth or falsity meaning that non-materially deceptive content is excluded. See Order at 11.

On top of the content-based distinctions, AB 2839 regulates speech based on viewpoint and speaker. The state law only punishes content that could "harm" a candidate's electoral prospects or content that could "undermine confidence" in the outcome of an election while leaving positive representations unregulated. In other words, materially deceptive content that helps a candidate or promotes confidence would not be subject to penalty under AB 2839….

Moreover, AB 2839 also engages in speaker-based discrimination because the law imposes different obligations on different speakers depending on who they are. Under AB 2839, candidates posting about themselves, broadcasters, and internet websites are subject to more lenient rules while other speakers, such as Plaintiffs, are categorically barred. Candidates and broadcasters can post "materially deceptive" content as long as they attach disclaimers. Additionally, broadcasters and internet sites are exempt from "general or special damages." AB 2839 treats different speakers dissimilarly, subjecting certain individuals to stricter rules and other speakers to more lenient rules. All together, these content, viewpoint, and speaker-based distinctions at minimum trigger strict scrutiny….

Attempting to avoid the content, viewpoint, and speaker- based problems with AB 2839, Defendants analogize the statute to narrow categories of historically recognized exceptions to the First Amendment such as defamation or fraud…. However, AB 2839 goes beyond these historical categories. For example, the statute diverges from defamation law because it proscribes content that is merely "reasonably likely" to cause harm, which is speculative and prophylactic rather than remedial or concrete. Moreover, the statute also goes beyond reputational harms to include amorphous harms to the "electoral prospects" of a candidate.

So too do AB 2839's regulations go beyond the definition of fraud because unlike fraud, AB 2839 does not require reliance or actual injury. See United States v. Alvarez (2012) (Breyer, J., concurring). California responds that falsehoods "meant to deceive viewers and manipulate voters to change their voting behavior" do cause legally cognizable harm, but intent to "deceive and manipulate" alone is not sufficient under Alvarez, which recognized that even knowing falsehoods are constitutionally protected….

Notably, the most significant manner in which AB 2839 goes beyond historically recognized exceptions to the First Amendment is by deputizing a much more expansive category of plaintiffs. Unlike defamation or other tort remedies that limit plaintiffs to persons actually harmed, the category of plaintiffs AB 2839 cognizes is almost boundless because it allows the government as well as any recipient of materially deceptive content to "seek injunctive or other equitable relief." Plus, these recipients can seek "general or special damages" and "attorney's fees and costs," even against a person who merely "republishe[s]" prohibited content. Allowing almost any person to file a complaint creates the "real risk" of malicious lawsuits that could chill protected speech. Susan B. Anthony List v. Driehaus (2014).

Rather than targeting content that procures tangible harms or materially benefits a speaker, AB 2839 attempts to stifle speech before it occurs or actually harms anyone as long as it is "reasonably likely" to do so and it allows almost anyone to act as a censorship czar….

[S]trict scrutiny is the appropriate standard for a content-based restriction that implicates political expression like AB 2839…. To withstand strict scrutiny, AB 2839 must advance a compelling state interest through the least-restrictive means possible….

While the Court acknowledges that California may have a compelling interest in protecting election integrity, the tools it deploys to achieve its interest must be the least restrictive means of achieving such goal when significant speech issues are at stake. As Plaintiffs argue, the most glaring issue with AB 2839 is that the statute is not narrowly tailored because it captures even constitutional deepfakes and all "materially deceptive content." The First Amendment does not "permit speech-restrictive measures when the state may remedy the problem by implementing or enforcing laws that do not infringe on speech." "Because restricting speech should be the government's tool of last resort, the availability of obvious less-restrictive alternatives renders a speech restriction overinclusive" and unconstitutional.

As the Court previously recognized in its preliminary injunction Order, existing statutory causes of action, including "privacy torts, copyright infringement, or defamation already provide recourse to public figures or private individuals whose reputations may be afflicted by artificially altered depictions peddled by satirists or opportunists on the internet." Indeed, several other narrower constructions might allow the statute to align with historically recognized First Amendment exceptions. For instance, California could limit AB 2839's reach to false speech that causes legally cognizable harms like false speech that actually causes voter interference, coercion, or intimidation.

California could also limit the statute's reach to factual statements that are demonstrably false like the time, date, place, or manner of voting. See generally Eugene Volokh, When are Lies Constitutionally Protected?, 4 J. Free Speech L. 685, 704–09 (2024) (contrasting lies about "election procedures"—an area where a "narrower restriction[] might pose fewer problems" with lies about election campaigns and government officials—areas that should be "categorically immune from liability").

Another narrower construction might be for California to limit potential plaintiffs to political candidates actually harmed by unprotected false speech, which would mirror defamation law more closely. Plaintiffs also suggest that California could encourage alternatives that are already working in the free market such as fact checking or counter speech.

California could even fund its own AI educational campaigns or form committees on combatting false or deceptive election content. While California's expert explains that political deepfakes are "sticky" and this type of misinformation spreads too quickly for governments to counteract it, Plaintiffs have offered evidence from their expert that shows fact-checking alternatives like "Community Notes and Grok are already … scalable solutions being adopted" in the real world.. These misinformation flagging tools crowdsource identification and labeling to educate citizens rather than relying on censorship to eradicate potentially misleading content. Thus, California provides no substantial evidence that other less restrictive means of regulating deceptive election content are not feasible or effective….

The court also concluded that plaintiffs' satires could fall within the scope of AB 2839:

Defendants agree that some satirical videos can appear to be authentic within the meaning of AB 2839. California previously represented at the preliminary injunction stage that a "voter who encountered [the Harris Parody Video] … could have concluded … that it was real." Thus, AB 2839's expansive terms capture even satire or parody videos since the law does not require that the parody in fact does fool or mislead someone.

Content need only "falsely appear … authentic" in some respect to violate the law. Since parody "imitates the characteristic style of an author or a work for comic effect or ridicule," much digitally created parody would run afoul of the law. Moreover, the State's contention that parody and satire are excepted is unpersuasive because AB 2839's safe harbor codified at Cal. Elec. Code § 20012(b)(3) imposes a disclaimer requirement on parody or satire that is independently suspect….

The post California Law Restricting "Materially Deceptive" Election-Related Deepfakes Violates First Amendment appeared first on Reason.com.

[Ilya Somin] New Pew Research Center Report on "How States and Cities Decimated Americans' Lowest-Cost Housing Option"

[They have done so banning or severely restricting low-cost "single-room occupancy" (SRO) housing.]

Julie Feinstein/Dreamstime.com

The Pew Research Center has a valuable new report on how state and local governments destroyed much of their potential low-income housing stock by banning or severely restricting "single-room occupancy" (SRO) housing. Here is the summary of the report and its findings:

Low-cost micro-units, often called single-room occupancies, or SROs, were once a reliable form of housing for the United States' poorest residents of, and newcomers to, New York, Chicago, San Francisco, and many other major U.S. cities. Well into the 20th century, SROs were the least expensive option on the housing market, providing a small room with a shared bathroom and sometimes a shared kitchen for a price that is unimaginable today—as little as $100 to $300 a month (in 2025 dollars).

In the late 19th and early 20th centuries, landlords converted thousands of houses, hotels, apartment buildings, and commercial buildings into SROs, and by 1950, SRO units made up about 10% of all rental units in some major cities. But beginning in the mid-1950s, as some politicians and vocal members of the public turned against SROs and the people who lived in them, major cities across the country revised zoning and building codes to force or encourage landlords to eliminate SRO units and to prohibit the development of new ones. Over the next several decades, governments and developers gradually demolished thousands of SROs or converted them to other uses, including boutique hotels for tourists. And as SROs disappeared, homelessness—which had been rare from at least the end of the Great Depression to the late 1970s—exploded nationwide.

Now, as a nationwide housing shortage has pushed rents and homelessness to historic highs, some states and localities are reconsidering the value of lower-cost, small units with shared kitchens, bathrooms, and amenities. Ironically, had SROs grown since 1960 at about the same rate as the rest of the U.S. housing stock, the nation would have roughly 2.5 million more such units— enough to house every American experiencing homelessness in a recent federal count more than three times over.

As governments throughout the United States seek to fill the gap in low-cost housing, one promising and inexpensive model is gaining traction: making shared housing legal, as it was for most of U.S. history. And one version of shared housing—converting some of the vast supply of office space left empty since the COVID-19 pandemic—looks especially promising: A single office building conversion could add hundreds of low-cost homes near jobs and transit, while a large high-rise could add more than 1,000 homes. Several states have passed laws in the last few years to remove local legal barriers to building SROs or converting certain existing buildings into SROs.

This brief explores the history of SROs and their close relationship with homelessness. It also looks at strategies for adding large quantities of inexpensive housing units to meet the needs of the nation's most vulnerable residents as well as others seeking low-cost housing.

The report notes that studies show that homelessness is in large part caused by high housing costs, and that cities where low-income housing is more widely available (because they have fewer regulatory barriers to it) have much lower rates of homelessness. Thus, exclusionary zoning is a major factor increasing homelessness. I have previously written about this here.

The report also notes that one facet of SRO restrictions is laws banning or severely restricting the ability of unrelated people to live together and share the rent and other expenses. In a post about the Pew study, economist Alex Tabarrok calls this "the war on roommates." Fortunately, some states have begun to cut back these restrictions:

Perhaps the simplest method of creating low-cost shared housing is to allow unrelated individuals to share a house in the same way that relatives are allowed to share a house. But many communities limit the number of unrelated people who can live together—in some places, to as few as two. Such laws make sharing a house for a group of roommates—which usually enables rents lower than having an individual apartment—illegal. The U.S. has a record number of unused bedrooms, but many cannot be rented because of restrictions on house sharing by unrelated roommates, even if that would be the most profitable use for the landlord and the most affordable option for the tenants. To enable this low-cost housing option, Iowa, Oregon, and Colorado all passed bipartisan legislation to strike down local codes that prohibit house-sharing (in 2017, 2021, and 2024, respectively).

In all of those cases, states have stepped in when localities did not act, authorizing lower-cost housing and limiting the ability of local governments to ban inexpensive housing. The aim of those laws is to increase the rental market for low- and moderate-income residents and make more use of existing housing stock. If these bills succeed, and a large number of micro-units reach market, their rents will likely be low, since individual rooms, when available, usually rent for far less than houses or apartments.

Many readers have probably had the experience of needing roommates - sometimes more than one roommate! - to be able to afford housing in a relatively expensive area. These kinds of laws make it very difficult to take advantage of this cost-saving effect. Such saving not only make housing more affordable, but also make it easier for lower-income people to "move to opportunity," thereby expanding their future earnings and making our economy more productive.

In a  Texas Law Review article published last year, University of Wisconsin Prof. Josh Braver and I explain why exclusionary zoning violates the Takings Clause of the Fifth Amendment, which requires government to pay "just compensation" when it takes private property. There, and in an Atlantic article, we explain how litigation should be combined with political action to break down zoning restrictions on housing construction. While we did not focus on SRO bans specifically, they certainly fall within the scope of our argument.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[A rescinded diploma, a brown seer stone, and a pointless waste of time.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. On the Center for Judicial Engagement Blog, CJE Director Anthony Sanders explains why in the past IJ hasn't used the terms "liberalism" and "rule of law" all that much but that there's more need for them now—and how that puts us in the same big tent with law professor Cass Sunstein.

In "technically correct but damn" news, try this saga from the D.C. Circuit. In 2013, Thorpe and Knight are charged with several offenses. They're offered a deal, but only if both accept. Thorpe wants to, Knight refuses. The deal is withdrawn. A jury convicts. Both are sentenced to 20+ years. Except, Knight refused the deal because of his counsel's ineffective assistance. After an appeal ending in 2020 he gets released. D.C. Circuit rejects Thorpe's ineffective-assistance-of-co-defendant claim. But, to "ameliorate any injustice," judges suggest prosecutors dismiss Thorpe's charges. The circuit takes up the case again. Except . . . prosecutors can't dismiss charges after they become a judgment. Whomp.During a car stop, D.C. police officers order driver to lower his illegally tinted windows, permitting them to see inside his vehicle. There's a gun in the back. Yikes! Felon-in-possession charges ensue. D.C. Circuit: And the officers' order that the driver lower his tinted windows did not violate the Fourth Amendment.Under longstanding administrative law principles, federal agencies are generally required to provide notice and a period of public comment before adopting new rules. The TSA, however, in requiring airports to screen workers who go into secure areas, just got comments from airports. So let's see how the D.C. Circuit balances blackletter law against an "agency's own assumption that there is a limited need to hear from the public."Cynics will tell you that the Supreme Court's decision in Bivens is a dead letter, but this Second Circuit opinion, which comes with two different concurrences and a dissent, confirms that it's at minimum a dead letter about which people have a lot to say.If the First, Fourth, Seventh, Ninth, and D.C. Circuits won't extend the right to bear arms to assault rifles and high-capacity magazines, what will the Second Circuit do? Come for the inevitable holding, stay so we can debate your humble summarist's view that "history and tradition" is just another way of saying "intermediate scrutiny."New York man pleads guilty to unlawful possession and is sentenced to three years incarceration plus three years of supervised release. Uh oh! Although the conditions imposed in the written order on the supervised release are standard, some were not mentioned at the sentencing hearing. Man challenges the conditions for violating his right to be present at sentencing. Second Circuit (en banc): We used to let this slide, but now we've changed our mind. So the district court should have a new hearing where it says these conditions in the presence of the defendant. Dissent: "What a pointless waste of time."The Third Circuit invalidates Pennsylvania's practice of discarding ballots contained in envelopes with missing or incorrect dates after finding "only tangential links, at best" to the state's legitimate interests, outweighed by thousands of presumably proper ballots being disqualified. Affirmed.Fourth Circuit: Your facial challenge to the county's restriction on carrying guns in certain public places fails because some of those places are preschools, and your as-applied challenge fails because, as far as the record shows, you've been able to carry guns wherever you want just fine.Ignoring two trustees' concerns, a high school in Kingsville, Tex. rehires a teacher who previously had a not-so-secret sexual relationship with a student. Lo and behold, two years later, the teacher is convicted of soliciting a minor and attempted possession of child porn. The victim sues the school, arguing it was liable under § 1983 and Title IX for rehiring the teacher. District court: To a jury! Jury: Verdict for the victim. $250k. Fifth Circuit (per curiam): None of which was error. Affirmed.Fifth Circuit (February 2025): Suppressors aren't "arms" under the Second Amendment. This dude who sold them without a license stays in prison. Federal gov't: On second thought, they are "arms." But, yeah, keep this guy in prison. Fifth Circuit (August 2025): Cool, we'll say we take no stand on suppressors and "arms." But still prison.Culture warriors will be excited about this Sixth Circuit case because it's about whether a physician assistant can be fired for refusing to use patients' preferred pronouns. Procedure geeks will focus on the fact that the majority and the concurrence have a deep discussion of when a defendant has waited too long to invoke an arbitration clause. As masochists, we focus on the fact that an opinion about a case that's over a year into trial-court litigation still begins with a reference to "the early stage at which this case has reached us."Fort Wayne, Ind. death doula: I give families advice and information about planning for the end of life. Indiana: If you want to talk about that stuff, you need to go to mortuary school, embalm dozens of bodies, and buy a funeral home in order to get a funeral-director license. Seventh Circuit: "This approach furthers the state's interests the way an atom bomb would further the eradication of a residential ant infestation." Preliminary injunction against Indiana's free-speech-violating nonsense affirmed. (This is an IJ case.)Illinois schoolteacher—twice disciplined for using profanity in the classroom—posts politically charged messages on Facebook, where about 80% of her followers are former students. The messages, including suggestions that BLM protestors be hosed down with sewage, lead to more than 100 calls and emails to the school. The teacher is fired, and she sues. Seventh Circuit: Her comments were on matters of public concern, but it's also clear they disrupted school operations. Case dismissed.Eighth Circuit: A claim that the plaintiff received inadequate notice in terminating her from Medicaid is a claim about something that happened in the past and therefore barred by sovereign immunity. (Dissent: But she wants to be reinstated to Medicaid, which sounds an awful lot like a claim about something that's happening right now.)EEOC brings lawsuit against railroad company, alleging hostile work environment at a Nebraska railway. And the allegations are pretty gross! Eighth Circuit: They are also more than enough to survive a motion for summary judgment, let alone a motion to dismiss.In which the Ninth Circuit holds that a plaintiff can bring a Federal Tort Claims Act action for damages based on having been improperly deported to the wrong country.If a federal prisoner alleges, among other things, an "irreversible kidney injury" due to the indifference of prison staff, can he bring a Bivens claim? Ninth Circuit: Since this case is "identical in all meaningful respects" to a SCOTUS case that itself extended Bivens and hasn't been overruled then, yes, even in 2025 he has a claim.Oregon passes law requiring pharmaceutical companies to report a bunch of information to the state gov't about how they make pricing decisions, which is then disclosed on a gov't website. Pharma companies: We would prefer not to. This law unconstitutionally compels speech. Ninth Circuit: Yeah, but at most it compels commercial speech, so who cares? Dissent: "Commercial speech" does not mean all speech about commercial stuff.New stress dream just dropped: Your public university rescinds your diploma! Ninth Circuit: Just keep whispering to yourself, "I have a property interest in my diploma, I have a property interest in my diploma."Two individuals allege Arizona's Unclaimed Property Act unconstitutionally lets the state seize their unclaimed checks—the unclaimed property is listed online, but the Act doesn't require the state to provide apparent owners with actual notice. District court dismisses the case, citing sovereign immunity and rejecting the takings and due process claims. Ninth Circuit: Plaintiffs have standing, sovereign immunity doesn't block prospective injunctive relief, and while there's no taking (property held in trust isn't "taken"), the due process notice claim is revived. (Similar challenge to Alaska's Unclaimed Property Program disposed of similarly via unpublished opinion.)Farm-owning family in Chihuahua, Mexico, is menaced out of the country by a cartel, which wants their land. Asylum? Board of Immigration Appeals: Asylum-based claims based on family membership are certainly a thing, but here, the cartel wasn't persecuting you just because of your family membership, but also to achieve some other ultimate goal (snagging your family farmland). No asylum. Tenth Circuit (2-1): People (and cartels) often do things for multiple reasons. The BIA messed this one up. Remanded.Is it the RICO for the heads of the Church of Jesus Christ of Latter Day Saints to (according to these plaintiffs) lie about some of the key historical events of the Mormon religion? Like saying that Joseph Smith translated the Book of Mormon from reformed Egyptian with the help of spectacles consisting of two translucent stones? When in fact (according to these plaintiffs) Joseph Smith actuallydictated the Book of Mormon while looking at an opaque "brown seer stone" placed in a hat? Tenth Circuit: It is hard for us to overstate how much this dispute is not something the federal courts exist to adjudicate.Friends, you will never see the words "cumbersome review of the record" deployed with as much venom as in this 83-page decision of the Tenth Circuit, which gives police officers—accused of beating an Oklahoma motorist to death during a routine traffic stop—exactly the factual review they ask for and then some before affirming the district court's denial of qualified immunity.In deference to the many small children who regularly read Short Circuit, we will not repeat the specific four-letter-word at issue in this Federal Circuit trademark case, but we will note that the trademark examiner who had to gather "evidence from multiple internet websites" about its meaning probably had a fun day at work.And in en banc news, the Ninth Circuit will not reconsider its decision about how it defers to the BIA in the post-Chevron world, despite a 30-page dissental.And in more en banc news, the Eleventh Circuit will reconsider its decision that categorically not allowing any "sex offender" whatsoever to spend the night in the same home as their own child violates the fundamental right to establish a home.

IJ's cofounder and longtime President and Board Chairman William "Chip" Mellor passed away last year. In his honor, IJ and the State Policy Network created the "Chip Mellor Prize for Excellence in Public Interest Litigation." The prize comes with $100,000 and recognizes teams of litigators and advocates who work together to earn significant litigation victories to hold gov't officials accountable, advocate for civil society and the rule of law, and to help the most vulnerable least able to fight back. This week the inaugural prize was awarded to the New Civil Liberties Alliance for its work in overturning the Chevron doctrine.

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[Eugene Volokh] Free Speech Unmuted: President Trump's Executive Order on Flag Desecration

See also this post from Monday. Our past episodes:

Free Speech and DoxingThe Supreme Court Rules on Protecting Kids from Sexually Themed Speech OnlineFree Speech, Public School Students, and "There Are Only Two Genders"Can AI Companies Be Sued for What AI Says?Harvard vs. Trump: Free Speech and Government GrantsTrump's War on Big LawCan Non-Citizens Be Deported For Their Speech?Freedom of the Press, with Floyd AbramsFree Speech, Private Power, and Private EmployeesCourt Upholds TikTok Divestiture LawFree Speech in European (and Other) Democracies, with Prof. Jacob MchangamaProtests, Public Pressure Campaigns, Tort Law, and the First AmendmentMisinformation: Past, Present, and FutureI Know It When I See It: Free Speech and Obscenity LawsSpeech and ViolenceEmergency Podcast: The Supreme Court's Social Media CasesInternet Policy and Free Speech: A Conversation with Rep. Ro KhannaFree Speech, TikTok (and Bills of Attainder!), with Prof. Alan RozenshteinThe 1st Amendment on Campus with Berkeley Law Dean Erwin ChemerinskyFree Speech On CampusAI and Free SpeechFree Speech, Government Persuasion, and Government CoercionDeplatformed: The Supreme Court Hears Social Media Oral ArgumentsBook Bans – or Are They?

 

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[Eugene Volokh] Accusing Someone of "Support[ing] Neo-Nazi Causes" May Be a Factual Assertion and Therefore Libelous

From yesterday's decision of the N.Y. intermediate appellate court in Stiloski v. Wingate, by Justices Mark C. Dillon, Paul Wooten, Lourdes M. Ventura, and Donna-Marie E. Golia:

In [his LinkedIn] post, the defendant held himself out to be a "Nonprofit Leader and Consultant." As relevant to this appeal, the defendant referring to an individual, readily identifiable as Stiloski, stated that "[a] Tarrytown extremist who supports neo-Nazi causes and does a ton of business with the Village placed a massive sign on his place showing a graphic middle finger aimed at our Black community." The LinkedIn post also included the hashtag "# blacklivesmatter," as well as a photograph depicting various signs, one of which stated "ALL LIVES CAN'T MATTER UNTIL BLACK LIVES MATTER!!," and a flag outside of the Tarrytown Village Hall….

The defendant's statements in the LinkedIn post, under the circumstances and in the context made, did not constitute nonactionable pure opinion. The defendant did not call Stiloski a "neo-Nazi," which arguably can be pure opinion. Rather, the nuanced statements at issue in the LinkedIn post, namely that Stiloski was a "Tarrytown extremist who supports neo-Nazi causes," can "readily be proven true or false" and, under these circumstances, in which the defendant held himself out to be a "Nonprofit Leader and Consultant" and the amended complaint alleged that the defendant is a well-known community activist, "signaled to the average reader or listener that the defendant was conveying facts about the plaintiff." Alternatively, the statements in the LinkedIn post are those of mixed opinion and, therefore, actionable, as "a reasonable reader would have inferred that the poster had knowledge of facts, unknown to the audience, supporting the assertions made."

The plaintiffs further sufficiently alleged in the amended complaint that the statements made in the LinkedIn post were detrimental to them. Specifically, the amended complaint alleged that in July 2022, a potential customer refused the plaintiffs' services and called Stiloski a "racist" and a "white supremacist." Additionally, the plaintiffs alleged that the automotive business suffered as a result of the defendant's actions, notably that a local church ceased doing business with the plaintiffs, among other things.

The plaintiffs further alleged that the defendant's "actions were taken with malice based on extreme animus and hatred," and that his conduct was "knowingly malicious, willful and wanton and/or showed reckless disregard" for the plaintiffs' rights. Thus, the plaintiffs demonstrated that the causes of action alleging defamation and defamation per se, as well as the other causes of action that were predicated upon the alleged defamatory communication at issue, under these circumstances, had a substantial basis in law.

The court therefore allowed plaintiff's claim to go forward past the anti-SLAPP motion to dismiss stage; of course, there has yet to be a determination whether the defendant's allegations were false, were said with the requisite mental state, and so on.

For more on this legal question, and the distinction between allegations of racism/Communism/etc. and allegations of specific acts, see this post.

Andrew C. Quinn, Lalit K. Loomba, and Marykate Acquisto (Quinn Law Firm) represent Stiloski.

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