Eugene Volokh's Blog, page 50

[Eugene Volokh] No First Amendment Right to Spray Paint "Free Gaza" on State University of N.Y. Buildings

[The court also rejected defendants' "necessity" defense.]

From People v. Sanin & Guillotin, decided (generally correctly, I think) Aug. 8 by trial judge James Farrell of the Ulster County (N.Y.) County Court:

Defendants, Jamie Sanin and Charlie Liu Guillotin, former SUNY New Paltz students, were indicted on charges of Criminal Mischief in the Second Degree (Penal Law § 145.10]), Making Graffiti (Penal Law § 145.65) and Possession of Graffiti Instruments (Penal Law § 145.65) stemming from allegations that on October 6, 2024, they spray painted graffiti at various locations on SUNY New Paltz Campus with phrases such as "Your Tuition Funds Genocide" and "Free Gaza" and posted two posters containing similar statements. Two suspects wearing black coats with black hoods and black surgical masks were observed on surveillance video. A patrol officer observed two individuals matching the suspects' descriptions and ordered them to stop walking. The patrol officer smelled the strong odor of spray paint on the suspects, one suspect had spray paint on their clothing, and other suspect was carrying a shopping bag containing several cans of spray paint. The suspects, identified as defendants herein, were arrested and issued appearance tickets. Defendants were also issued "persona non grata" letters and advised not to return to campus lest they be subject to arrest for criminal trespass. Defendants now move to dismiss the indictment….

The "Making Graffiti" statute provides:

For purposes of this section, the term "graffiti" shall mean the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.No person shall make graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.

The court rejected the claim that this violated the First Amendment:

[T]he statute is content neutral and prohibits an activity unrelated to the content of expression, the statute instead prohibits the destruction of personal and private property….

Unlike the city ordinance discussed in Tuscan v City of Seattle (W.D. Wash. 2024), relied upon by defendants, Penal Law § 145.60 requires that an individual intend to damage the property upon which they have made the graffiti. In Tuscan, a person was guilty of property destruction under the city's ordinance if they intentionally wrote, painted or drew on any public or private building, structure, real or personal property, regardless of whether they intended to damage the property or not. Thus, under that ordinance, any act that was intentional, such as a child intentionally drawing a rainbow on the sidewalk with chalk without permission, could be determined to be property destruction.

Under Penal Law § 145.60, it is not the mere intentional act of placing graffiti onto another's property without permission that constitutes the crime, but the culpable mental state of intending to damage that property in the process. "Damage implies an injury or harm to property that lowers its value or involves loss of efficiency. Thus, an intent to damage may translate into an intent to injure or harm property by lowering its value or lessening its efficiency." The statute sufficiently outlines the conduct that it prohibits—marking another person's property without their permission, and "intent to damage" is understood to mean lowering the property's value or loss of its efficiency. Considering these elements together, defendants had adequate notice and law enforcement sufficient guidance as to what activity is prohibited. The statute is neither overly board nor unconstitutionally vague….

While defendants have a constitutional right to engage in political speech, that privilege does "not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." "Nothing in the Constitution commands that dissemination of all forms of speech at all times on all kinds of property are absolutely protected under the First Amendment, without regard for the nature of the activity, the property or the disruption that might be engendered by unregulated expressive activity in certain circumstances." …

Assuming without deciding that that a SUNY campus is a traditional public forum, as discussed above, the "Making Graffiti" statute is content neutral and is narrowly tailored to serve a legitimate government purpose. Defendants have numerous other means to express their concerns that do not involve spray painting that message on campus property. Defendants have failed to demonstrate that the statute was discriminately applied to them based upon their viewpoint.

And the court held that defendants' weren't entitled to a jury instruction on the necessity defense recognized by N.Y. statute:

A justification defense applies "when conduct that would otherwise have been criminal 'is necessary as an emergency measure to avoid an imminent … injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor,' and the threatened injury is so grave as to outweigh the harm resulting from the actor's conduct." Courts in New York have consistently denied application of the defense of justification by necessity in cases involving defendants who have engaged in civil disobedience.

Defendants['] conduct, spray painting statements on campus property, with the intention of prompting the university to change its financial and/or investment policies as it may relate to the armed conflict in Gaza cannot be considered to have been reasonably calculated to prevent any harm to the people in Gaza suffering from the armed conflict. As such, defendants' act of civil disobedience was not "necessary as an emergency measure" to prevent harm to the people in Gaza….

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[Eugene Volokh] Born in N.Y., Lived in U.S. for Nearly 70 Years, Subscribed Oath of Allegiance 5 Times—But, It Turns Out, He Isn't a U.S. Citizen

[Was the father a consul or an attaché? It is on such matters that the law sometimes turns.]

From Moncada v. Rubio, decided Wednesday by the Ninth Circuit (Judge Anthony D. Johnstone, joined by Judges Johnnie B. Rawlinson and Morgan Christen):

Roberto Moncada was born in New York City in July 1950. His father, a Nicaraguan national, worked for Nicaragua's permanent mission to the United Nations. For nearly seventy years, Moncada lived and worked in the United States as an American citizen. Five times he subscribed the oath of allegiance, and five times the government issued Moncada a passport. In the district court's words: "A child was born in America and told by the United States government—his government—that he was an American citizen. And … it told him this again and again and again and again."

The government repeatedly affirmed that Moncada's father's apparent status as a Nicaraguan consul did not confer diplomatic immunity on his children. So, the government explained, Moncada was born "subject to the jurisdiction" of the United States according to the Fourteenth Amendment. U.S. Const. amend. XIV, § 1. And under the Constitution, citizenship was his birthright.

But the government was, as the district court put it, "wrong all along." In 2018, the government reviewed its records and found that Moncada's father served as an attaché, not a consul, when Moncada was born. Unlike a consul, an attaché and his family possess full diplomatic immunity. So, the government now asserted, Moncada was not born "subject to the jurisdiction" of the United States. Therefore, he was not a birthright citizen. The government revoked Moncada's passport and told him he "did not acquire U.S. citizenship by virtue of [his] birth here."

Moncada sued for a declaratory judgment that he is a citizen. The Secretary of State responded by producing a recently executed certification of Moncada's diplomatic immunity at birth ("Certificate")…. [The District Court] held that the Secretary established by clear and convincing evidence that Moncada was not born a citizen because it found, as a matter of fact, that his father was an attaché with diplomatic immunity when he was born. We affirm….

Moncada was born "subject to the jurisdiction" of the United States under the Fourteenth Amendment unless he was born with diplomatic immunity—immunity from the jurisdiction of the United States. Under international law principles incorporated into federal law, and subject to limited exceptions, he held diplomatic immunity if he was born into a diplomatic household. That, in turn, depends on whether the President—Truman, at the time—received Moncada's father, Dr. Moncada, as a public minister, or whether Dr. Moncada served as a consul instead. We therefore begin with the law of diplomatic immunity and the facts that determine whether Moncada held that immunity at his birth.

International law distinguishes between public ministers and consuls. Federal law reflects this distinction. [Details omitted. -EV] …

"All persons born … in the United States, and subject to the jurisdiction thereof, are Citizens of the United States." … When ratified, the Citizenship Clause was understood to exclude non-citizens "who belong to the families of [a]mbassadors or foreign ministers accredited to the Government of the United States." This exclusion incorporated the longstanding international law principle of diplomatic immunity: "the immunity which all civilized nations allow to foreign ministers," and those "privileges which are essential to the dignity of [the foreign minister's] sovereign, and to the duties he is bound to perform." …

A person claiming United States citizenship bears the burden of producing "substantial credible evidence" of that fact. If the person does so, the burden shifts to the government to prove lack of citizenship "by clear and convincing evidence." This clear and convincing burden of proof "matches the gravity of the task" in proceedings, such as this one, that may deprive a person of the United States citizenship to which they may be rightfully entitled….

The district court found conflicting evidence of Dr. Moncada's diplomatic immunity, but it discounted Moncada's evidence as lacking sufficient weight. Along with the Certificate, the Secretary produced the bulk of the evidence at trial: [State Department official James] Donovan's credible testimony about diplomatic processes and records; the U.S. Mission to the U.N. "Blue List," the registry of individuals with diplomatic immunity, which includes Dr. Moncada's name and title as an attaché; the U.S. Host Country Affairs Section's KARDEX registry of biographical information for Dr. Moncada and his family; and U.N. General Assembly records where Dr. Moncada spoke to the body in a diplomatic capacity. Of particular importance are "Blue List" documents because they may "constitute [ ] presumptive evidence that [Moncada] enjoy[ed] diplomatic status." Each piece of evidence shows that Dr. Moncada enjoyed diplomatic immunity when his son was born.

But Moncada presented evidence to the contrary, including President Truman's May 1949 exequatur with Dr. Moncada listed as "Deputy Consul," Moncada's birth certificate that lists his father's occupation as "Consul," and the absence of Moncada's name among the Moncada children listed on the KARDEX. Also, some of Donovan's trial testimony conflicts with the "reasonable—if not inevitable—inference" of Moncada's citizenship status. For example, Donovan testified that he did not have any knowledge of how or where Dr. Moncada spent most of his time while he represented Nicaragua at the U.N. This was an important concession because that information would have been helpful circumstantial evidence of his job description and title. Moncada also relies on various documents noting that Dr. Moncada lacked full diplomatic immunity status, due in part to confusion of the "Blue List" of diplomats at the embassy in Washington D.C. (which did not list Dr. Moncada) with the "Blue List" of diplomats at the permanent mission to the U.N. in New York City (which did list Dr. Moncada). And again, the Secretary did not produce any contemporaneous certification of when, exactly, the President received Dr. Moncada as a diplomat.

Still, as the fact finder, "the district court was entitled to discount this evidence." And "[b]ased 'on the entire evidence,' we are not 'left with the definite and firm conviction that a mistake has been committed.'" Thus, on the record before it, the district court did not clearly err in finding that Dr. Moncada held diplomatic immunity when his son was born. Therefore, Moncada also held diplomatic immunity. And if he was immune from the jurisdiction of the United States at birth, then he is not a birthright citizen under the Fourteenth Amendment….

The district court also observed that "[i]t is impossible to conclude that this is justice," and we share its concern about this outcome. The government, for its part, concedes that its decades of mistakes led to this "very unfortunate and regrettable situation." But as inequitable as this result is, courts lack the equitable power to remedy the government's errors by granting Moncada citizenship.

Formality is a virtue of birthright citizenship. It requires no inquiry into lineage but is "restricted only by place and jurisdiction." Yet when circumstances leave a person immune from the jurisdiction of the United States at birth, this same formality requires a court to "give full effect" to that restriction. Thus, we affirm the judgment of the district court.

Ruth A. Mueller represents the government.

 

The post Born in N.Y., Lived in U.S. for Nearly 70 Years, Subscribed Oath of Allegiance 5 Times—But, It Turns Out, He Isn't a U.S. Citizen appeared first on Reason.com.

[Eric Claeys] Natural Property Rights: A VC Preview

[Property rights, public law, the police power, and the eminent domain power.]

Thanks again to Eugene for letting me blog at the VC this week about my new book—Natural Property Rights, published with Cambridge University Press and available for purchase now digitally and in hardbound version, at a variety of bookstores.

Most American 1L property courses end with discussions of regulatory takings and eminent domain. I'll follow suit here.

Before I get started, though, a disclaimer. In the book I did not, and in this post I will not, make any claims about the legal meaning of any statute or constitutional clause. Natural Property Rights is a work of normative theory. It focuses on what statutes and constitutional guarantees should say, not on what any current statutes or guarantees do say.

Imagine that a local government makes it illegal to emit more than a certain level of smoke in a specific area of town. Is such a law just? Prima facie, the law interferes with factory owners' freedom to produce useful products. If residents and clean businesses have land near the factory, though, the law protects their rights to use their lots for their own uses. If the anti-smoke ordinance is an anti-pollution ordinance, in a rights-based system it is a legitimate exercise of the police power—or a genuine "regulation."

Thanks to almost a century's worth of big government, we're now used to "regulation" meaning "a law that directs private parties to behave in certain ways, to promote goals chosen by the government." In a rights-based legal system, though, "regulation" has a more precise meaning. I can't do better than VC contributor Randy Barnett did in an article about the Commerce Clause (which lets Congress "regulate" commerce among the several states): In a rights-based regime, a "regulation" is a law that "makes rights regular." People are entitled to natural rights. A legitimate regulation is a positive law. It coordinates how people behave. But it coordinates behavior specifically so that all the parties regulated all enjoy in practice the rights to which they're entitled by natural law.

Although natural law justifies government regulation, in the process it also sets principled limits on regulation. If a law does not fit one of the acceptable models for regulation, it isn't a legitimate exercise of the police power. (The law may still be a legitimate exercise of some government power—the taxing power, or the power of eminent domain—but it's not a valid exercise of the police power.)

There are three main models of regulation. My anti-pollution law is a simple example of a harm-prevention regulation. Regulations can also supply determinacy. A speed limit makes rights to travel and be safe on roads determinate. Commonwealth v. Alger, a landmark 19th-century case about the police power, upheld as a regulation a Massachusetts law that replaced vague common law shoreline boundaries with precise survey boundaries. Regulations can also secure a reciprocity of advantage; they can coordinate how a group of right-holders behave so that they all use their property more effectively than they could have without legal oversight. In the book, I illustrate with a law that lets a state agency take over oil production when the mineral rights-holders can't maximize production by their own private agreements.

Now consider another hypothetical: A government takes a private party's land. Prima facie, that taking is even more troubling than the anti-pollution ordinance. Even in a system dedicated to securing natural rights, though, a government may in some circumstances legitimately condemn property. The government should pay fair compensation, for taking something over which a private party held vested legal rights. But the government should not take the property unless the taking is for a genuine public use.

In a rights-based regime, it must seem likely that the property taken will be used by or on behalf of the entire public. The easiest public use cases occur when a government takes property to operate military bases, highways, or parks. A government may legitimately take one person's property to carry out policies securing the rights of the entire citizenry. In the takings just listed, the government is using the property taken to secure the citizenry's collective rights (respectively) to defense, travel, or the use of resources for recreation.

Another easy case covers the situation when a government condemns rights so that no one can use a resource actively—like a ban on development of vacant land. Then, the public enjoys—uses—the absence of development, to derive aesthetic benefits, conservation benefits, or more order.

Harder cases arise when government condemns land for a utility—a railroad 150 years ago, or an electric company now. Those takings are also for public uses, as long as the utility is subject to oversight (common carriage law) ensuring that it provides services to all qualified customers. Then, the utility uses the taken property on behalf of the whole public.

Those sketches of the police and eminent domain powers are consistent with individual rights. They're not consistent with how regulation or eminent domain are used today. They're not consistent with prevailing federal case law on "regulatory takings" and public use, either. Here, I'll illustrate with the constitutional doctrines.

Sad to say, federal "regulatory takings" law protects property too little. The doctrine doesn't protect undeveloped property or the right to put developed property to uses different from its current uses. And the doctrine is far too deferential to laws that purport to regulate property.

Take what happened in Penn Central Transportation Co. v. New York. New York City designated the Grand Central Terminal a historical landmark, and after it did so it denied the company that owned the Terminal permission to build an addition over it. The Supreme Court said that the landmarking ordinance and the permit denial were not takings but police regulations. But those acts denied the Penn Central company freedom to use Grand Central productively—as a hub for business in commercial offices. The Court said that Penn Central's primary, expected use of the lot was to run a railroad station. But why shouldn't a proprietor be free to use its property as it likes?

New York could justly have limit Penn Central's uses if it had really been "policing" those uses. But the city didn't have a principled basis to say its landmarking policies policed rights. Penn Central would not have threatened the safety of its neighbors, and it would not have made any of its neighbors' lots unusable, if it had built a reasonably-safe addition on the Grand Central Terminal. And, New York didn't offer Penn Central compensation that secured to it a reciprocity of advantage for having extinguished air servitudes over the Terminal.

In substance, then, New York's policy should have been classified as an inverse condemnation, a backdoor taking. New York extinguished use rights. It didn't extinguish those rights in the course of a rights-based police regulation. The landmarking policy wasn't necessarily unjust in all possible applications. It could have been justified as an exercise of the eminent domain power. In substance, New York took air servitudes, and it did so for public use because post-landmarking the entire city citizenry got public uses from preservation of the Terminal's historic character. But New York should still have paid Penn Central for taking air servitudes.

Contemporary public use doctrine protects property even less than current regulatory takings doctrine does. Public use doctrine makes it far too easy for local governments to condemn private property and transfer it to another private party. The main culprits here are Berman v. Parker (1954) and Kelo v. New London (2005). Berman holds that a government has a "public use" to take property if it redistributes private property to get rid of "blight"; Kelo, that a government has such a public use if it redistributes to promote local economic growth.

In a rights-based legal system, disputes like the ones in Berman and Kelo raise two separate possibilities. First, the condemnation might be legitimate exercises of the eminent domain power. But that possibility is easy to rule out. When private developers or real estate companies get land post-condemnation, there is no public use in the sense explained above.

In a rights-based legal system, though, another possibility needs to be considered: the condemnations might instead be legitimate exercises of the police power. (I study this possibility not only in the book but also in a forthcoming article.) Governments often "redistribute" mineral rights by reassigning them from the rights-holders to the energy companies that extract oil or gas. At common law and in equity, governments condemn and redistribute private rights when they partition tenancies in common, assign all of the property to one party, and order that the new absolute owner pay the ousted cotenants money. Most controversially, in the nineteenth century, mill acts authorized state officials to condemn riparian rights and transfer them to dam builders.

When laws like those are drafted carefully, they can justly authorize the condemnation and redistribution of private property. Such laws are not exercises of eminent domain and are instead police regulations, on the ground that they secure average reciprocities of advantage to the ousted owners. But the schemes challenged in Berman and Kelo didn't come anywhere close to satisfying the standards for reciprocities of advantage.

Which is to say, current federal constitutional law doesn't come close to protecting property as much as a natural right should be protected. Maybe state legislatures will reconsider, and amend, state enabling acts on zoning and eminent domain. Maybe federal judges (the ones who aren't originalists and are instead functionalists) will reconsider Penn Central, Berman, and Kelo, and make contemporary case doctrine more respectful of property. Or, maybe the American people will convince Congress to add another amendment to the Constitution, one that reconciles property rights to government's legitimate police and eminent domain powers.

Probably not. But I can at least hope that they might happen. And before any of them happen, officials and citizens need a guide to property rights and government power, justly reconciled. Which is what I tried to provide in Natural Property Rights.

Thanks again to Eugene and all VC readers for your attention this week. What a wonderful community of lawyers, scholars, and readers!

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Paul Cassell] Who Is Lawfully Exercising the Powers of the U.S. Attorney for the District of New Jersey?

[A district court ruling that Ms. Habba has been unlawfully exercising the powers of the New Jersey U.S. Attorney ducks the critical question of who can exercise those powers ... which is strong reason for doubting the ruling's reasoning. ]

Today a federal district court (Judge Brann) ruled that Alina Habba is not lawfully acting as the U.S. Attorney for the District of New Jersey. But, remarkably, the district court failed to explain who instead lawfully holds the power of the U.S. Attorney for that district. The district court apparently recognized the uncertainty that its ruling would create, staying the ruling pending the Justice Department's sure-to-follow appeal. But the fact that the district court's order gives no answer to that basic question is, itself, strong reason for questioning its reasoning. On my reading of the relevant statutes, Ms. Habba is currently lawfully exercising the powers of the U.S. Attorney for New Jersey via the interim appointment statute. And if for some reason Ms. Habba lacks authority under that statute, the Attorney General has authority to name someone to assist in carrying out the Department's prosecutions in that state—and the Attorney General has properly named Ms. Habba.

I've blogged about this appointment issue earlier. Because the details are important, a recapitulation is in order (with some minor details omitted—you can read the District Court's 77-page opinion for the full chronology). As with my earlier posts, I express no view on the merits of Ms. Habba's appointment, only its lawfulness.

On January 8, 2025, as President Trump's inauguration was approaching, President Biden's U.S. Attorney—Philp R. Sellinger (who had previously been confirmed to the Senate by voice vote)—resigned to make way for the new Administration's nominee. Upon Sellinger's resignation, his First Assistant U.S. Attorney—Vikas Khanna—became the Acting U.S. Attorney pursuant to the Federal Vacancies Reform Act (FVRA). (Since then, Mr. Khanna has left the Department to go into private practice.)

On March 3, 2025, the Trump Administration appointed John Giordano interim United States Attorney for the District of New Jersey, pursuant to 28 U.S.C. § 546's vacancy provision. (He later was nominated to be the new Ambassador to Namibia.)

Then, a little more than three weeks later, on March 27, 2025, Attorney General Pam Bondi appointed Alina Habba to that interim position. The next day (March 28), Ms. Habba was formally sworn in to the interim position. Ms. Habba was appointed based on § 546, which limits such interim appointments to a maximum of 120 days. 28 U.S.C. § 546(c)(2). Given an interim appointment running for 120 days, Habba's appointment would seem to have been set to expire on Saturday, July 26—120 days later.

On June 30, 2025, President Trump formally nominated Ms. Habba for the permanent position of United States Attorney for the District of New Jersey and submitted her nomination to the Senate. The Senate took no action on the nomination.

On July 22, 2025, the judges of the U.S. District Court for the District of New Jersey invoked their statutory power under § 546(d) to appoint Desiree Grace (Ms. Habba's then-First Assistant) as the interim U.S. Attorney, making that appointment effective on "July 22, 2025 or 'upon the expiration 120 days after appointment by the Attorney General' of the Interim U.S. Attorney Alina Habba, whichever is later."

The Justice Department was not pleased with that appointment. And so, on July 24, 2025, before the 120 days had expired, the President withdrew Habba's nomination. That same day—July 24—Habba resigned her interim position as United States Attorney. The Attorney General then immediately appointed her as a Special Attorney under 28 U.S.C. § 515, which appointment Ms. Habba accepted. Exercising her authority under 28 U.S.C. §§ 509, 510, 515, and 542, among other provisions, the Attorney General also designated Ms. Habba as the First Assistant in New Jersey, effective upon her resignation as the interim United States Attorney. As a result of her holding the position of First Assistant U.S. Attorney position in New Jersey, by operation of law, Habba then seemingly became the Acting United States Attorney under the FVRA, 5 U.S.C. § 3345(a)(1).

In addition, on Saturday, July 26, a senior Justice Department official notified the former First Assistant (Ms. Grace) that the President would have removed her from the position of United States Attorney if her judicial appointment to that office had somehow become effective. The notification indicated that, in taking that step, the President was exercising his authority under Article II of the Constitution and 28 U.S.C. § 541(c). The former vests "the executive power in" the President; the latter provides that "each United States Attorney is subject to removal by the President." At oral argument before the District Court, the Justice Department reported that this removal order came at the direction of the President. Ms. Grace was terminated from her position at the Justice Department.

With that background in mind, we can now turn to the district court's ruling. Contrary to the assumption that everyone was operating under (including the New Jersey judges), the district court ruled today that § 546's 120-day limit began running on March 3, when the Trump Administration first invoked the vacancy provision and did not re-set to a new 120 days with the subsequent appointment of Ms. Habba three weeks later. Because Court's ruling hinges on the precise language of § 546, I set out the statute's language in full:

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

The Justice Department interprets the statute to mean that the Attorney General can make unlimited appointments under § 546(a) unless and until one of those appointments reaches the 120-day limit, at which point the appointing power shifts to the district court. A defendant being prosecuted by Ms. Habba reads the statute more narrowly, arguing  that while § 546 allows the Attorney General to make appointments of different  individuals, it imposes an aggregate limit for all such appointments of 120 days.

The district court agreed with the defendant, concluding that the defendant's reading was "textually sound" because

under section 546(c)(2), the 120-day limit, is benchmarked only to "appointment by the Attorney General under this section." It does not refer to "the person's appointment." In grammatical terms, there is no article, definite or indefinite, to describe the appointment to which section 546(c)(2) refers. But the text has not left us without guidance. The statute tells us that the 120 days are counted from "appointment by the Attorney General under this section." The Attorney General makes such appointment when she invokes section 546(a). So the 120-day clock begins running when the Attorney General first invokes section 546(a) and makes an appointment.

The Justice Department had argued that the introductory language of sub-section (c)—"[a] person appointed …."—should carry through to the "appointment" referred to in § 546(c)(2). To me, that seems like a straightforward, sensibly reading of the statute. But the district court disagreed, for three reasons.

First, the district court rejected the Department's interpretation because it "rewrit[es] the unmodified term "appointment" as "her appointment" or "that appointment." But one could just as easily say that it is the district court's interpretation that "rewrites" the statute, because the district rewrites the unmodified term "appointment" to be "any appointment."

Second, the district court concluded that under the Department's reading, restating the phrase "under this section" (found in both (c) and (c)(2)) becomes a redundancy
because a section-546 appointment "is the only type of appointment to which [the phrase] could apply. But courts should give 'every clause and word of a statute' . . . meaning.' [citing cases]. Giving meaning to the second use of 'under this section' indicates that that subsection (c)(2) refers more broadly to any appointment 'under this section.'"

This interpretation is odd. To make its reading of the statute work, the district court has to give the exact same words—"under this section"—two different interpretations, even though they are found just forty words apart from each other in the same statutory provision. The district court's interpretation crashes headlong into a standard rule of statutory construction—the presumption of consistent usage. As Justice Scalia and Bryan Garner articulate the presumption: "A word or phrase is presumed to bear the same meaning through a text …." Scalia & Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) (citing cases).

Moreover, under the Justice Department's interpretation of the statute, the second use of the phrase "under this section" in subsection (c)(2) is not a redundancy. In subsection (c)(2), the phrase clarifies that, in contrast to subsection (c)(1)'s reference to § 541, subsection (c)(2)'s reference is to "this section"—i.e., to § 546. That interpretation gives meaning to the phrase—and, indeed, a consistent meaning to the phrase throughout the statute.

Third, the district court believed that the introductory language "under this section" clearly does not "modify the other barring provision in section 546(c)(1), which is indisputably benchmarked to an event unrelated to any specific person's interim appointment: Senate confirmation of the President's nominee." But this point is a non sequitur. The issue is not whether the phrase "under this section" somehow "modifies" the latter language found in section (c). The issue is what the phrase means. The fact that the Senate confirmation of a U.S. Attorney terminates an interim appointment does not shed light on the meaning of the phrase.

The district court has one last consequentialist argument up its sleeve. The court claims that statutory "context" must mean that the 120-day clock runs out after a first invocation of section 546, because "[a]ccepting the Government's reading would give the Executive a permanent means of thwarting that provision by terminating every section 546(a) appointment on its 119th day" (emphasis added). The district court's bias in interpretating the statute is revealed in the word "thwarting." The Executive is not "thwarting" judicial power when it elects to make a successive appointment of a U.S. Attorney under section 546(a). Instead, it is simply eliminating any occasion for the judiciary to step in. Indeed, an Executive Branch appointment of the U.S. Attorney should be normal course of events. If there is any impermissible "thwarting" going on, it would seem to come from interpreting the statute to allow a judicial branch appointment of an interim U.S. Attorney against the wishes of the Executive.

To be sure, the Executive might elect to allow the judiciary to make an appointment, particularly where there has been cooperation in selecting the person. But an interpretation giving the Executive the final word over who will serve in important U.S. Attorney positions seems much to be preferred over the district court's assertion of judicial power.

But an even more glaring problem with the district court's analysis about recurring 119-day appointments is its failure to analyze what might be termed recurring 121-day terminations. The district court concedes that under 28 U.S.C. § 541(c), the President has the power to terminate a judicially appointed U.S. Attorney. See Op. at 33. So under the district court's "contextual" reading of the statute, the result is that, after 120 days, the judiciary can appoint an interim U.S. Attorney against the wishes of the Executive, and then the next day (the 121st day), the Executive can terminate that interim U.S. Attorney. And, at that point, there is a clearly a "vacancy" existing in the U.S. Attorney's Office, over which the Executive Branch then has control.

Indeed, the striking omission in the district court's 77-page opinion is that it tells us who is not exercising the powers of the U.S. Attorney in New Jersey—while begging the question of who is exercising those powers. Under the district court's ruling, those powers are clearly not being exercised by the judicially-appointed First Assistant (Ms. Grace). She has been terminated by President Trump. And under the rest of the district court's opinion, it would appear that there is no available First Assistant who is eligible to step in and serve as the Acting U.S. Attorney. (Recall that Mr. Khanna has left the Department.)

So to determine who is running things in New Jersey now, under the district court's decision, we apparently have to go back to first principles, with the Attorney General being the head of the Justice Department and entitled to exercise all of the functions of the Justice Department. See 28 U.S.C. § 509. And, of course, the Attorney General can't be everywhere at all times, and so she is entitled to have other Justice Department employees assist her in carrying out the Department's duties. And for New Jersey, Attorney General Bondi has made it clear that she wants Ms. Habba to carry out the Department's duties in New Jersey—and thus could apparently delegate that responsibility to Ms. Habba.

I admit my analysis here could be critiqued. But at least I have set out analysis for who is currently in charge of the U.S. Attorney's Office for the District of New Jersey. The district court has not told us who, in its view is in charge—a stunning omission with significant practical consequences, ameliorated only by the fact that the district court has stayed its ruling to permit an appeal.

I'll stop my statutory analysis here, in the interest of keeping this post somewhat limited. But I should emphasize that I'm writing only about how judicial appointments should be handled in the context of vacant U.S. Attorney positions. As I have discussed in my earlier posts, different considerations exist when the judiciary is exercising authority on a case-specific basis (such as appointing a special prosecutor to pursue a contempt of court prosecution). Supreme Court precedent clearly allow judicial appointments in these contexts. See, e.g., Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987).

My view is that the district court's statutory ruling will be—and should be—swiftly reversed, either by Third Circuit or, if necessary, the Supreme Court. In the end, it makes sense to read the statutory scheme to allow the Attorney General to appoint someone whom she has confidence in to carry out the President's policies.

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[Eugene Volokh] Ninth Circuit En Banc Dissent as to Sanctions on Lawyers in Kari Lake's Election-Related Litigation

From Judge Lawrence VanDyke's dissent from denial of rehearing en banc in Lake v. Gates, joined by Judges Consuelo Callahan, Ryan Nelson, Daniel Collins, Kenneth Lee, and Patrick Bumatay:

The panel decision in this case upheld a sanctions order under Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927 against attorneys Andrew Parker and Kurt Olsen. Parker and Olsen (collectively, "Lead Attorneys") represented plaintiffs Kari Lake and Mark Finchem in election-related litigation.

As the district court candidly acknowledged, the sanctions were intended to "send a message" to similar litigants in election-based lawsuits and to discourage litigation disfavored by the court. Zealous to safeguard the "public trust," the district court read plaintiffs' complaint out of context and in the light least favorable to plaintiffs; imposed a heightened requirement that Lead Attorneys conduct "significant" pre-filing inquiries on the basis of their clients and their cause; levied sanctions on the ground that plaintiffs made claims that, as even the district court itself recognized, the complaint never actually stated; and badly misapplied the governing legal standards.

This case involved legal claims that might charitably be characterized as aggressive. It was a Hail Mary legal theory, especially as to standing. But we encounter Hail Mary legal theories regularly in our court in a variety of contexts, and while they almost always lose, they don't get sanctioned just because they are longshots. Many cases are dismissed because the asserted injuries are too speculative to support Article III standing. A great many more are dismissed for failure to state a claim on which relief can be granted.

The law has no lack of tools short of sanctions to deal with speculative claims, adventurous legal theories, and imprecisely drafted complaints. Again, our circuit entertains cases with exceedingly improbable claims on a routine basis, which are usually (but not inevitably, which is probably why hope springs eternal) dispatched using any of the panoply of available mechanisms. If the run-of-the-mill Hail-Mary claims we routinely encounter are not sanctionable, neither were the claims in this case.

Two reasons independently made this case worthy of en banc review. First, the district court and the panel badly misapplied the standards for finding attorney conduct sanctionable. The district court flatly misread the allegations in plaintiffs' complaint. While the complaint never actually said that Arizona did not use paper ballots—a fact that the district court even acknowledged in its sanctions order—the district court nevertheless found such a claim implied in the complaint (and thus sanctionable). But the context of the complaint confirms what its plain language makes clear: The attorneys never argued that Arizona did not use paper ballots.

Although the complaint may not have been drafted with perfect precision, the district court reached the alternative conclusion only by repeatedly going out of its way to construe the complaint in the light least favorable to plaintiffs. Read in context, the complaint cannot be plausibly construed as asserting what it never said. Penumbras, emanations, and acontextual implications should be insufficient to warrant sanctions under Rule 11, and the district court abused its discretion in concluding otherwise. The panel majority ratified those errors, and in doing so reinforced the district court's departure from the Rule 11 standard and our case law interpreting that Rule.

Second, the district court boldly proclaimed that it levied sanctions on Lead Attorneys with the hope that doing so would "send a message" to deter future litigants with similar claims—or, put bluntly, to deter a specific type of election litigation. Setting aside the myriad legal problems posed by this action—not the least of which is making a hash of the Rule 11 standard—that just looks bad. And even if the inference is unwarranted, this court's refusal to grant en banc review will be construed by many as implicitly blessing the district court's weaponization of sanctions to chill politically disfavored litigation.

Who could blame them? Cudgeling attorneys into abandoning unpopular claims and clients is not what sanctions are for. While not authoritative here, the Arizona Supreme Court astutely observed that "[b]y sanctioning parties and their lawyers for bringing debatable, long-shot complaints, courts risk chilling legal advocacy and citizens raising 'questions' under the guise of defending the rule of law." "Even if done inadvertently and with the best of intentions, such sanctions present a real and present danger to the rule of law." And that "danger to the rule of law" is all the more present when the judge issuing the sanctions boldly proclaimed that such a chilling effect is an intended feature, not a bug.

We should have taken this case en banc to rectify these abuses and make clear that Article III judges are to adjudicate cases without fear or favor, remaining scrupulously neutral toward all litigants—especially in politically charged cases where the public is watching. I respectfully dissent from our failure to do so.…

You can see also the panel decision, which includes a dissent from Judge Bumatay.

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[Eugene Volokh] Cancellation of DEI-Related Grants Likely Violates First Amendment, Ninth Circuit Holds

Today's Ninth Circuit decision in Thakur v. Trump (Judge Morgan B. Christen, joined by Judges Richard A. Paez and Roopali H. Desai) denied a stay pending appeal of a district court preliminary injunction that blocked the cancellation of certain research grants. In the process, the court concluded that the cancellation likely violated the First Amendment:

Plaintiffs are six researchers at the University of California (UC) who applied for and received multi-year federal research grants from … the Environmental Protection Agency (EPA) … and the National Endowment for the Humanities (NEH)….

In April 2025, EPA and NEH sent form letters to Plaintiffs informing them that their grants were terminated. The EPA form letter states: "the award no longer effectuates the program goals or agency priorities. The objectives of the award are no longer consistent with EPA funding priorities." The NEH form letter states: "[y]our grant no longer effectuates the agency's needs and priorities," and informs the recipient that "NEH is repurposing its funding allocations in a new direction in furtherance of the President's agenda."

Plaintiffs allege that these terminations resulted from agency implementation of at least eight Executive Orders the President issued in January and February 2025: Executive Orders 14173, 14151, 14168, 14154, 14217, 14238, 14158, and 14222. Executive Orders 14173 and 14151 (the "DEI Executive Orders") seek to eliminate diversity, equity, and inclusion ("DEI") and diversity, equity, inclusion, and accessibility ("DEIA") policies and initiatives from all aspects of the federal government. More specifically, Executive Order No. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, states that "critical and influential institutions of American society," including the federal government and institutions of higher education, "have adopted and actively use dangerous, demeaning, and immoral race-and sex-based preferences under the guise of so-called 'diversity, equity, and inclusion' (DEI) or 'diversity, equity, inclusion, and accessibility' (DEIA) that can violate the civil-rights laws of this Nation." This Executive Order directs the Office of Management and Budget (OMB) to "[e]xcise references to DEI and DEIA principles under whatever name they may appear," including federal grants.

Executive Order No. 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, instructs "each agency, department, or commission head," to provide the director of OMB with a list of all "[f]ederal grantees who received [f]ederal funding to provide or advance DEI, DEIA, or 'environmental justice' programs, services, or activities since January 20, 2021." This Executive Order directs agency heads to assess the operational impact and cost of those specified grants and recommend action.  It expressly directs agency heads to "terminate … all … 'equity-related' grants."  Similarly, Executive Order No. 14168, titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, directs that "federal funds shall not be used to promote gender ideology." …

The government argues that the district court abused its discretion when it concluded that the DEI Termination Class was likely to succeed on the merits of its First Amendment claim that the agencies unlawfully terminated their grants based on their viewpoint. The government relies on the significant flexibility it is afforded when acting as a patron to subsidize speech, as opposed to when it regulates speech as a sovereign. The government argues that it "can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest" to the exclusion of other activities. Rust v. Sullivan (1991); Regan v. Tax'n With Representation of Wash. (1983). In support, the government relies on NEA v. Finley (1998) to argue that there is a First Amendment violation only when the government uses its sovereign power to "drive 'certain ideas or viewpoints from the marketplace'"—not when the government simply ceases funding those ideas or viewpoints.

In our view, the government misreads Finley. There, Congress amended the National Endowment for the Arts's (NEA) reauthorization bill to require that grant applications be evaluated by "taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." The Plaintiffs, performance artists who applied for grants, brought a facial challenge to the amendment and argued that it violated their First Amendment rights. Importantly, the Plaintiffs "d[id] not allege discrimination in any particular funding decision," and therefore, the Supreme Court "ha[d] no occasion … to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination." The Court explained that "[i]f the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then [it] would confront a different case." The Court went on to emphasize that "even in the provision of subsidies, the Government may not 'aim at the suppression of dangerous ideas.'" Id. (quoting Regan).

Contrary to the government's argument, this case does not appear to be one in which an agency decided not to "fund a program." See Rust. Rather, it is one in which more than a dozen agencies selected particular grants for termination regardless of the programs through which they were funded, based on their connection to DEI, DEIA, and environmental justice. Thus, we "confront a different case" than Finley (where plaintiffs brought a facial challenge to Congress's mandate that NEA consider standards of decency in awarding grants), Rust (where plaintiffs brought a facial challenge to HHS regulations interpreting Title X's prohibition on funding for abortion services), and Regan (where plaintiffs brought a facial challenge to the IRS's requirement that organizations refrain from lobbying to qualify for § 501(c)(3) tax-exempt status).

Plaintiffs' as-applied challenge is closer to Rosenberger v. Rector (1995). In that case, the University of Virginia made funds available to cover printing costs for student newspapers.  The University denied a Christian newspaper's application for funds because the newspaper engaged in "religious activity" by "promot[ing] or manifest[ing] a particular belie[f] in or about a deity or an ultimate reality," conduct prohibited by the University's guidelines for student activity funding.  The Court concluded that the University "d[id] not exclude religion as a subject matter" but "select[ed] for disfavored treatment those student journalistic efforts with religious editorial viewpoints." Id. ("[W]hen the State is the speaker, it may make content-based choices," but "[h]aving offered to pay the third-party contractors on behalf of private speakers who convey their own messages, the [State] may not silence the expression of selected viewpoints.").

Here, the record at this stage shows that the agencies selected grants for termination based on viewpoint. Indeed, the government does not meaningfully dispute that DEI, DEIA, and environmental justice are viewpoints. The agencies, the termination letters, and the Executive Orders do not define these terms, but dictionary definitions demonstrate that DEI, DEIA, and environmental justice are not merely neutral topics. Instead, the terms convey the viewpoint that the exclusion of historically disadvantaged groups is undesirable.

We are bound by the bedrock principle that the government cannot "leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints" or "aim at the suppression of dangerous ideas" in the provision of subsidies. Finley (quoting Regan). The government does not dispute that it terminated the subject grants because they promoted DEI, DEIA, or environmental justice. We therefore conclude that the government has failed to make a strong showing that the district court abused its discretion when it concluded that the DEI Termination Class was likely to succeed on the merits of its First Amendment claim.

The agencies' implementation of the DEI Executive Orders reinforces our conclusion. McDonald's declaration states that NEH staff reviewed open grants in light of the DEI Executive Orders, and NEH's "policy for selecting grants for termination at NEH focused first on identifying open grants that focused on or promoted (in whole or in part) 'environmental justice,' 'diversity, equity, and inclusion,' or 'diversity, equity, inclusion and accessibility,' and 'gender ideology.'" NEH created and used spreadsheets that identified grants as "either 'High, Medium, Low, or No Connection' in terms of the Executive Orders." Coogan's declaration states that the grant termination process "began by looking at grant titles and project descriptions." Although his declaration states that the EPA reviewed and terminated grants "independent from" the Executive Orders, the EPA's public announcements state the opposite. For example, on March 10, 2025, the EPA announced that it "cancelled grants and contracts related to DEI and environmental justice."

Because the current record suggests that the government aimed at the suppression of speech that views DEI, DEIA, and environmental justice favorably, the government has not shown that it is likely to succeed on the merits of its claim that the district court abused its discretion when it concluded the agencies likely terminated the grants based on viewpoint.

For more on plaintiffs' Administrative Procedure Act claims, which the court also viewed favorably, see the opinion.

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[Eugene Volokh] Medical Marijuana Users May Retain Second Amendment Rights

From yesterday's Eleventh Circuit decision in Fla. Comm'r of Ag. v. Attorney General, written by Judge Elizabeth Branch and joined by Judges Robert Luck and Gerald Bard Tjoflat:

[T]wo Florida medical marijuana users who wish to purchase guns and one gun owner who wishes to participate in Florida's medical marijuana program brought a pre-enforcement action seeking declaratory relief that 18 U.S.C. § 922(d)(3) and (g)(3), which prohibit unlawful drug users from possessing or being sold firearms, are unconstitutional as applied to them…. [T]he district court conducted Bruen's history-and-tradition test to determine if the challenged statutes were similar to historical gun regulations. The district court concluded that the laws and regulations at issue in this case were consistent with this Nation's historical tradition of firearms regulation and therefore did not violate the Second Amendment….

[We conclude that,] when viewed in the light most favorable to the plaintiffs, the allegations in the operative complaint do not lead to the inference that the plaintiffs are comparatively similar to either felons or dangerous individuals—the two historical analogues the Federal Government offers in its attempt to meet its burden. We therefore vacate the district court's order and remand for further proceedings consistent with this opinion….

[T]he FAC [First Amended Complaint] contains no allegations regarding either the frequency of use or effects that consumption of marijuana has on [plaintiffs] Cooper and Hansell—or other medical marijuana users. The FAC's only allegation about the nature of Cooper's and Hansell's use is that they use marijuana only as permitted by Florida law. And while the district court labeled them as "habitual drug users," presumably akin to addicts, the FAC says no such thing, stating simply that Cooper and Hansell use marijuana for the medical benefits they receive and in reliance on the fact that they will not be criminally prosecuted for their medicinal use.

Viewing these allegations in the light most favorable to Cooper and Hansell, it appears they use rational thought in making their decision to use marijuana and would stop their marijuana use if they were placed at risk of criminal prosecution. Accordingly, Cooper's and Hansell's mental state is a far cry from that of addicts and alcoholics whose actions are controlled by their need to use alcohol or drugs. See United States v. Yancey (7th Cir. 2010) (affirming the constitutionality of 18 U.S.C. § 922(g)(3) as applied to a criminal defendant who "had been smoking marijuana daily" for two years, reasoning that "habitual drug users" like the defendant were "more likely to have difficulty exercising self-control").

For a similar conclusion by the Fifth Circuit (favorably cited by yesterday's Eleventh Circuit decision), see this post about U.S. v. Connelly.

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[Orin S. Kerr] So You're About to Start Law School: An Incoming Law Student's Guide

[My tips for 1Ls, now up on Youtube.]

Every fall, about 40,000 new first-year students begin law school in the United States.  Most have a lot of questions, and students who don't know many lawyers have the most questions of all. Back in 2007, I wrote a short essay, How to Read a Legal Opinion: A Guide for New Law Students, to help incoming students with the basic task of reading cases. More recently, I thought it would be useful to record a video to try to answer common questions students may have about the first month of law school—things like preparing for class, the Socratic Method, social dynamics, case briefing, study groups, and office hours.  The result is below. I hope students find it helpful.

If students find this useful, I might add others in the series, such as on studying for and taking exams.

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[Eugene Volokh] N.C. Trial Court Rejects Sealing of Parts of State's Complaint Against TikTok

From Judge Adam Conrad's opinion Tuesday:

[T]he State has sued the owners and operators of TikTok, a popular app for sharing and viewing user-created videos. According to the State, the makers of TikTok designed the app to be highly addictive to minors and then undertook a deceptive publicity campaign to convince parents and children that the app is safe. On that basis, the State asserts a claim for unfair or deceptive trade practices under N.C.G.S. § 75-1.1…. Defendants and Apple maintain that the complaint should be sealed….

The presumption is that court filings are public records. They must be "open to the inspection of the public," except as prohibited by law. N.C.G.S. § 7A-109(a). For that reason, the burden is on the designating party to overcome that presumption. To meet its burden, the designating party must clearly articulate "the circumstances that warrant sealing the document" in a motion to seal or supporting brief…. The designating party must explain how public "disclosure would cause serious harm" that outweighs the public's interest in open courts….

Defendants … ask to seal Exhibit A to the complaint, which is a video compilation of statements from their employees, ostensibly to protect the employees' personal information. By personal information, Defendants apparently mean the employees' names and job titles. There is no compelling reason to seal that information. The employees' association with the case may entail some embarrassment, but that alone does not outweigh the public's right of access. See Doe v. Doe (N.C. App. 2018) (stating that "an interest in protecting third parties from 'trauma and embarrassment' or 'economic damage' has not been recognized as a compelling state interest outweighing the constitutional right of public access to the records of our courts").

The balance of Defendants' argument concerns allegations about its internal and external approaches to compulsive TikTok use by minors. In broad strokes, these allegations describe measures urged by Defendants' employees to mitigate TikTok's addictiveness, resistance to those measures by senior officials, metrics showing that the app's safety features did not work or could be easily evaded, and staff cuts that inhibited Defendants' ability to moderate content in keeping with TikTok's Community Guidelines. These allegations are undoubtedly disputed, and they might be embarrassing, but they are not competitively sensitive. See, e.g., Fleming v. Horner (N.C. Super. Ct. 2020) ("[S]ealing is not warranted merely because allegations are potentially embarrassing or injurious to the reputation of a party."); Bradshaw v. Maiden (N.C. Super. Ct. 2020) (denying motion to seal potentially embarrassing information).

Although Defendants suggest that disclosure of some of this information could allow malicious users or other bad actors to circumvent TikTok's safety processes, it is difficult to see how that could be true. The complaint does not provide a roadmap for hackers. Rather, it alleges that Defendants themselves undermined TikTok's safety processes by designing them to fail. Again, Defendants undoubtedly dispute these embarrassing allegations. But the way to set the record straight is through discovery, not by concealing the complaint from the public.

As to the body of the complaint, the court reasoned:

Apple's … argument … is limited to paragraphs 40 and 44 of the complaint. Paragraph 40 states how many times North Carolinians downloaded TikTok from Apple's App Store between 2018 and 2023, as well as the total amount of in-app payments made by users with Apple devices. Paragraph 44 generally states that Defendants advertised TikTok in the App Store, including to minors. Although Apple asserts that this data and information is sensitive (and even deserving of protection as a trade secret), its argument is not convincing. The disclosure of historical data—going back seven years—about downloads and in-app payments is highly unlikely to cause competitive harm to Apple or Defendants. And the discussion of advertisements in the App Store "is far too general to be sensitive." The Court therefore denies Apple's request.

As for Defendants, they seek to redact more than a third of the complaint (narrowed from their original request to redact nearly two-thirds). According to Defendants, the complaint contains "confidential financial and usage data," "business and marketing strategy" information, "personal information regarding employees," and "highly confidential proprietary information about the TikTok platform's safety and content moderation systems, processes, and policies."

Again, Defendants' argument is not convincing. Several paragraphs recite facts and figures about the number of minors using TikTok, how often minors use the app on average, Defendants' profitability and advertising expenditures, and Defendants' contractual relationship with the National Parent Teacher Association. This information does not appear to be unusually sensitive. And even if it had some competitive value, all or nearly all of the data is years old and, thus, quite stale in an industry that seems to change by the day. The Court is not persuaded that disclosure of this information carries a serious risk of competitive harm.

A few paragraphs discuss TikTok's features—including its algorithm (or recommendation system), push notifications, and software filters. It may be true that Defendants have a strong interest in keeping TikTok's algorithm secret. But the complaint's general description of the algorithm's operation does not come remotely close to disclosing anything truly secret about it, especially when viewed in context with other paragraphs that Defendants do not seek to redact. The descriptions of TikTok's notifications and filters are equally general. These high-level descriptions do not merit sealing.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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