Eugene Volokh's Blog, page 51

[Eugene Volokh] N.C. Trial Court Rejects First Amendment Defense to "Addictive Design" Claim Against Tiktok

From State ex rel. Jackson v. TikTok Inc., decided Tuesday by Judge Adam Conrad; I'm skeptical about the analysis, for reasons I hope to blog about later (I'm writing a journal article on the subject right now), but I thought I'd pass it along:

The following background assumes that the allegations in the complaint are true [because that's what courts do when deciding on a defendant's motion to dismiss -EV].

TikTok features an array of elements allegedly designed to exploit minors' developmental immaturity and induce compulsive use. TikTok's home page (coined the "For You Page") feeds each end user videos that are algorithmically selected to maximize engagement. The algorithm, or recommendation system, performs this task by recording the user's interactions with the app (such as sharing or skipping a video), identifying behavioral patterns, comparing the user's behavior with others', and ranking videos as more or less likely to be engaging based on that comparison. This individualized feed is, in the words of ByteDance employees, "addictive."

Other design elements enhance TikTok's addictive quality. When a user opens TikTok, a video plays automatically. The user can then cycle through videos endlessly just by swiping a finger. These features—"autoplay" and "infinite scroll"—generate an immersive, seamless experience without the occasional pause that the user might regard as a natural stopping point. Of course, scrolling isn't all that the app has to offer. Filters allow users to touch up photos and videos in myriad ways; one filter called "Beauty Mode" makes facial features and hairstyles look more attractive. Various buttons and widgets also allow users to like and share videos, post comments, and follow specific content creators. The desire to amass likes and similar social rewards begets more frequent and protracted app usage.

In addition, the app sends push notifications to coax users to return to the app when they are away. Notifications arrive on a schedule most likely to get users' attention, such as late in the evening. They may highlight algorithmically selected videos and sometimes promote content that is available to view only for a short period or at a specific time, playing on users' fear of missing out to create a sense of urgency. There are also badges, which appear as a number above the app's icon and tempt the user to return by quantifying, perhaps falsely, all that they've missed while not using the app.

These design choices allegedly make TikTok addictive to minors in much the same way that, say, roulette is addictive to gamblers. One reason that roulette is so alluring is that it offers unpredictable, variable rewards. As the wheel spins, gamblers "anticipate[ ] a reward that they know could come but is tantalisingly just out of reach," and they "experience a dopamine rush" in the process.

TikTok has similar traits. Each new video in the feed is a surprise; users can scroll as long as they wish, endlessly anticipating but never knowing what they will see next. By the same token, social rewards are variable; users do not know when they will get the next notification that a viewer followed their account or liked one of their videos. For minors, this is irresistible. As one expert put it, minors "struggle 'to ignore the prospect of a dopamine reward, even when this conflicts with other essential daily activities, such as sleeping or eating.'" Tracking statistics bear this out: the average teen user opens TikTok sixteen times per day, and many teens spend more than four hours on the app daily and often wallow in lengthy, late-night binges.

TikTok addiction is bad for minors' mental health, the State alleges. ByteDance's own employees have sounded the alarm to company leaders, worrying that compulsive use of the app disturbs sleep patterns, interferes with "work/school responsibilities," "leads to deficient self-regulation," causes or compounds "anxiety," and impairs "analytical and problem-solving skill[s], memory formation, contextual thinking, conversational depth and empathy." Beyond that, employees have expressed concerns about negative effects on teens' self-image and susceptibility to eating disorders, particularly in connection with appearance-altering filters. But not everyone at ByteDance shares these concerns. One dissenter brushed them aside, asking "isn't addiction in this sense considered a very positive metric in our field?" And ByteDance's leadership has allegedly rejected these and other internal calls to make the app less addictive.

To the outside world, though, ByteDance touts its safety efforts. In advertisements and public statements, ByteDance maintains that minor accounts carry an automatic screen-time limit of sixty minutes, built-in nudges to remind minors to take breaks, and customizable tools that parents can use to control what their kids see and do. Plus, ByteDance tells users that they can escape so-called "rabbit holes" of entrancing, personalized content by refreshing their feed as if they had just opened a new account. In the same vein, ByteDance publicizes Community Guidelines that draw the lines between permissible and impermissible content. The Guidelines forbid and promise the removal of, among other things, "sexually suggestive" content created by minors and images of "gory, graphic human injuries."

But these are smokescreens, according to the State. In every case, the purported safety features either do not function as advertised (refreshing the feed lasts just a few videos before heading back down the "rabbit hole") or are so easy to disable as to be useless (teens get a passcode that they can use to override the supposed limit on screen time). Indeed, ByteDance allegedly designed these features to be ineffective while giving the illusion of mitigating compulsive use. And ByteDance disregards its own Community Guidelines. Its skeletal content-moderation staff cannot review more than a small fraction of posted content for compliance, so that scads of videos and user comments that are "egregious," "dangerous," and "graphic" by ByteDance's self-imposed standards never get flagged. Even when aware of prohibited content, ByteDance chooses to make that content harder to find but not to remove it as promised.

The State asserts a single claim, based on TikTok's design and marketing, for unfair or deceptive trade practices under N.C.G.S. § 75-1.1. It claims that ByteDance unfairly designed TikTok to be addictive to minors despite knowledge that compulsive use harms them. It also claims that ByteDance deceived the public by misrepresenting TikTok's safety features and Community Guidelines while falsely assuring that the app is safe for young users….

Here's the court's First Amendment analysis:

One [constitutionally] protected "aspect of speech" is "the editorial function"—that is, "exercising editorial discretion in the selection and presentation of content," including third-party content. Moody v. NetChoice, LLC (2024). Still, "the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." Sorrell v. IMS Health Inc. (2011) (contrasting "restrictions on protected expression" with "restrictions on economic activity or, more generally, on nonexpressive conduct")….

Few areas of the law are more cutting-edge than this one. It was just last year in Moody that the United States Supreme Court confirmed that "some [social-media] platforms, in at least some functions, are indeed engaged in expression" protected by the First Amendment. Specifically, a platform's content-moderation policy reflects its editorial judgments "about whether—and, if so, how—to convey posts having a certain content or viewpoint." See also id. (questioning state laws that "limit[ed] the platforms' capacity to engage in content moderation—to filter, prioritize, and label the varied messages, videos, and other content their users wish to post"). These "editorial judgments influencing the content" of social-media feeds are "protected expressive activity."

"But what if," as Justice Barrett asked in her concurrence, "a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will like—e.g., content similar to posts with which the user previously engaged?" Is that protected expressive activity as well? The Moody majority left that question unanswered: "We therefore do not deal here with feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards."

This case invites Justice Barrett's question once again. The State bases its unfairness theory on features that induce compulsive use, including TikTok's algorithm. As alleged, the algorithm does not "understand" or "care about" content, nor does it "promote or suppress particular political agendas, views, or content."  Rather, the algorithm presents videos based solely on an analysis of "the user's pattern of engagement."  Put another way, "[t]he recommendation engine is content-neutral, meaning that it recommends content based on behavioral and certain device signals, not on the semantic nature of the content itself."

Taking these allegations as true, it's hard to discern any expressive activity. The algorithm does not convey a message by its programmer; it simply bows to user preferences and propensities. At a minimum, the complaint supports an inference that a reasonable person would understand TikTok's video feed to reflect a given user's content choices as opposed to ByteDance's own creative expression or editorial judgment. See, e.g., U.S. Telecom Ass'n v. FCC (D.C. Cir. 2016) ("As a result, when a subscriber uses her broadband service to access internet content of her own choosing, she does not understand the accessed content to reflect her broadband provider's editorial judgment or viewpoint."); see also NetChoice v. Bonta (N.D. Cal. 2024) ("[I]t would be hard to say that the algorithm reflects any message from its creator because it would recommend and amplify both favored and disfavored messages alike so long as doing so prompts users to spend longer on social media.").

So too for the other disputed design features, such as autoplay, infinite scrolling, and social rewards. ByteDance says little about them, offering no basis to conclude that they deserve First Amendment protection independent of the underlying algorithm. And on the face of the complaint, none of the features has an obviously expressive quality.

Of course, the complaint gives only a glimpse—and likely a contested glimpse at that—into the inner workings of TikTok's algorithm and ancillary features. A more developed record might reveal an expressive message that changes the calculus. But for now, the Court concludes that the First Amendment does not mandate dismissal of the State's unfairness theory. See Meta Platforms, 2024 Mass. Super. LEXIS 161, at *22–23 (deeming claims about features that "allegedly induce addiction in young users … to be principally based on conduct and product design, not expressive content"); see also Meta Platforms, 2024 D.C. Super. LEXIS 27, at (same); Meta Platforms, 2024 Vt. Super. LEXIS 146, at *17–18 (same); Utah Div. of Consumer Prot. v. TikTok Inc., No. 230907634, at 14 (Utah Dist. Ct. Nov. 12, 2024) (same).

Likewise, the Court concludes that the First Amendment does not bar the State's deception theory. ByteDance misconstrues the theory as an attempt to regulate its content-moderation practices to suppress overly engaging content. That is not what is alleged. Rather, the State alleges that ByteDance deceived the public by making false and misleading statements about the functionality of its safety features and its adherence to its Community Guidelines. "Untruthful speech, commercial or otherwise, has never been protected for its own sake." …

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[Eugene Volokh] "Oyster Bay Caves, Agrees to Pay $3.95M and Approve Mosque's Plans After 'Fake Grandma' Scandal"

N.Y. Post (Brandon Cruz) reports:

Under the agreement, the town will green-light the Masjid Al-Baqi mosque's submitted plan to demolish two one-story buildings and build a larger house of worship, repeal a 2022 parking law that more than doubled space requirements for houses of worship, and pay nearly $4 million in damages and attorneys' fees….

From an earlier article (also by Brandon Cruz):

Town Planning Board Chairman Angelo Stanco admitted in a deposition that Oyster Bay "departed from its normal practice" to "invent the fake witness" — something he said had never been done before. He said the grandma is "partially an amalgam of testimony and written submissions," the records show….

Typically, the approval process to get the permit that the mosque is seeking only takes roughly six months to a year. But the mosque, which has existed in the town since the 1990s, said they have been fighting for their approval for over six years at this point.

And from the Justice Department's April 2025 statement of interest expressing support for the mosque, filed before the fake grandma revelations:

Plaintiffs … claim that Defendants … have, among other things, violated the equal terms provision of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq. As set forth in Plaintiffs' complaint and motion for a preliminary injunction, the Town has denied MOLI's application for a permit to construct a mosque capable of meeting the needs of its congregants in Bethpage, New York, relying on a recently revised parking code requiring MOLI to construct more parking spaces than is feasible.

As set forth below, in the United States' view, Plaintiffs are likely to succeed on the merits of their RLUIPA equal terms claim1 because, under the recently revised parking code, MOLI is treated less favorably than comparable secular uses such as theaters, libraries, and museums, and the Town cannot and does not show that such unequal treatment is justified.

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[Eugene Volokh] N.Y. Intermediate Appellate Court Rejects Civil Fraud Judgment Against Trump

ABC News (Aaron Katersky, Peter Charalambous & Steven Portnoy) reports on the 323 pages of opinions by a five-judge panel:

Two of the judges said Trump was properly held liable for business fraud, but the fine was excessive.

Two of the judges said the trial court was wrong to decide Trump committed fraud and the case should be retried—nonetheless, those two judges said they joined the decision "with great reluctance" to allow the case to proceed on appeal to the state's highest court.

A fifth judge said New York Attorney General Letitia James should not have brought the case in the first place.

You can read the opinions here …. Oh, whom am I kidding? I'm surely not going to slog through the 323 pages; I can't imagine many of our readers would, either.

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[Eugene Volokh] "After a Ten-Minute Bench Trial Held in Her Absence" …

[defendant "was found guilty of criminal mischief and domestic violence"—yet the prosecution "presented no evidence that [she] damaged or destroyed the property of another—an essential element of criminal mischief, which was also the predicate offense for the domestic violence charge."]

From Cedar City v. McCraw, decided last week by the Utah Court of Appeals (Judge Michele M. Christiansen Forster, joined by Judges Gregory K. Orme and David N. Mortensen):

In October 2021, McCraw and her girlfriend, Victoria [a pseudonym], argued inside their shared residence located in Cedar City, Utah. The dispute escalated to the point that McCraw threw and shattered plates on the floor in front of Victoria's young child. The City charged McCraw in the Iron County Justice Court with criminal mischief and domestic violence in the presence of a child; the case was later transferred to the Fifth District Court.

The bench trial was continued once and reset. When the trial was finally convened, McCraw did not appear. Counsel briefly left the courtroom to try to contact her client, returned, and reported that McCraw was unavailable. Counsel explained that McCraw was experiencing homelessness and had relocated out of state to find shelter. Counsel did not argue that McCraw's absence was involuntary or seek to continue the trial, and the trial proceeded without her.

Before any witnesses were called, Counsel agreed the City could proceed entirely by proffer and indicated that she did not intend to cross-examine any of the City's witnesses, even though the witnesses were present. {"When evidence is going to be received substantively by proffer, the proffering party states what the witness would testify to if called …, and if the opposing party consents, a court can accept the proffer."} The prosecutor proffered the testimony of Victoria and two police officers. The City's proffers established that McCraw broke and damaged plates during an argument, that Victoria's minor child witnessed this altercation, and that McCraw confessed to arguing with Victoria and breaking the plates.

No proffer established to whom the plates belonged. After the City rested, the trial court asked Counsel, "[D]o you have anything to offer"? She replied, "No, Judge." Counsel called no witnesses and made no closing argument. The court found McCraw guilty on both counts, and McCraw timely appealed….

McCraw argues that Counsel performed deficiently in failing to argue that McCraw's absence from the trial was involuntary and to request a continuance of the trial, in failing to subject the City's case to any meaningful adversarial testing, in failing to move for a directed verdict, and in failing to challenge the constitutionality of the criminal mischief statute.

{Though there is no claim of trial court error here, we would be remiss if we did not note that because a defendant charged with a crime has a constitutional and statutory right to be present at trial, it is incumbent upon the trial court to ensure that a non-appearing defendant has voluntarily absented herself from the trial. See State v. Wanosik (Utah 2003) ("The right to appear and defend in person is a constitutional one, but may be waived under certain circumstances if the defendant voluntarily absents himself from the trial. However, that voluntariness may not be presumed by the trial court."). "It is impermissible to apply an automatic presumption of voluntariness based on nothing more than non-appearance at a hearing of which a defendant had notice." Moreover, "[n]o one denies the general principle" that "the onus is on the [prosecution] to show voluntariness of absence and lack of consent to a trial in absentia."} …

[T]he City produced no evidence as to who owned the plates. As such, the inference the City advances that Victoria owned the plates because she continued to live in the home after the incident would not have been reasonable. Consequently, Counsel should have sought dismissal of the charges…. "If the [prosecution] presents no competent evidence from which a reasonable [factfinder] could find the elements of the relevant crime, then trial counsel should move for a directed verdict and the failure to do so would likely constitute deficient performance." …

McCraw must also demonstrate that she was prejudiced by Counsel's deficient performance. To do this, she "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." And when assessing such a claim, we may consider the counterfactual scenario of "what would have happened but for the ineffective assistance."

So viewed, had Counsel moved for a directed verdict at the close of the City's case and brought attention to the lack of proof on this element, the trial court would have been obliged to grant the motion. The City never "established a prima facie case against the defendant by producing believable evidence of all the elements of the crime charged." …

True, if Counsel had moved for a directed verdict and brought the gap in the evidence to the attention of the City and the trial court, the court might have let the City reopen its case to allow the presentation of additional evidence. "A motion to reopen to take additional testimony when a case has been submitted to the court, but prior to the entry of judgment, is addressed to the sound discretion of the court." "The word 'discretion' itself imports that the action should be taken with reason and in good conscience, and with an understanding of and consideration for the rights of the parties, for the purpose of serving the always desired objective of doing justice between them." But discretion is not certainty, and reopening is never guaranteed. Given the evidentiary void, there is at least a reasonable probability that had Counsel moved for a directed verdict, the trial court would have dismissed the charges….

Counsel should have recognized that the City rested its case without proving every element of criminal mischief and should have taken some action. And McCraw was prejudiced by Counsel's failure to act. Accordingly, we vacate McCraw's convictions and remand this matter for a new trial….

Dylan T. Carlson (Utah Indigent Appellate Defense) represents McCraw.

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[Jonathan H. Adler] Call for Papers: Rocky Mountain Junior Scholars Forum

[An opportunity out west for junior legal scholars.]

I am pleased to be able to share this call for papers.

The Rocky Mountain Junior Scholars Forum is issuing a call for papers. The Forum welcomes participants from across the United States in an academic position without tenure status as well as those who have not yet held an academic position. Fellows, Visiting Assistant Professors, and those in similar positions are welcome. Papers may be at any stage of development at the time of the Forum, including complete drafts, first drafts, partial drafts, and running outlines. Submissions on any legal topic are due by September 15, 2025 and can be submitted at https://rmjsf.byu.edu/2025-home/. Submissions may be in the form of an abstract or draft at any stage. Authors of selected papers will be notified by the end of September.

The Forum will be hosted this year by BYU Law School on October 16-17, 2025. The Forum will begin at lunch on Thursday, October 16, and end in the afternoon on Friday, October 17. The Forum will host dinner and an activity near the law school on Thursday evening. All meals will be covered by the Forum, but participants must provide for their own lodging and travel to and from the Forum. A block of rooms at a discounted price will be made available at a local hotel.

If you have any questions or concerns, please contact Tyler Lindley at lindleyt@law.byu.edu.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] Judge Denies Government's Request to Unseal Epstein Grand Jury Transcripts

Today's decision by Judge Richard Berman (S.D.N.Y.), in U.S. v. Epstein, is here; here's the summary from the docket entry:

The principal ruling in this case is that Federal Rule of Criminal Procedure 6(e) governs and that there is clear precedent and sound purpose for grand jury sealing.The Government concedes that no Rule 6(e)(3) "exceptions" to grand jury secrecy apply in this case. At the same time, the Government fails to demonstrate any "special circumstance[]" which might justify unsealing….

And a brief excerpt from the opinion:

The Government is the party seeking disclosure-however unusual it is for the Government to seek to unseal grand jury material…. A significant and compelling reason to reject the Government's position in this litigation is that the Government has already undertaken a comprehensive investigation into the Epstein case and, not surprisingly, has assembled a "trove" of Epstein documents, interviews, and exhibits. And, the Government committed that it would share its Epstein investigation materials with the public. The Government's 100,000 pages of Epstein files and materials dwarf the 70 odd pages of Epstein grand jury materials….

The Government is the logical party to make comprehensive disclosure to the public of the Epstein Files. By comparison, the instant grand jury motion appears to be a "diversion" from the breadth and scope of the Epstein files in the Government's possession. The grand jury testimony is merely a hearsay snippet of Jeffrey Epstein's
alleged conduct.

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[David Post] Mail-In Ballots

[Another day, another unconstitutional Executive Order on the way?]

Today's Con Law I exam question:

The President issues* an "Executive Order" prohibiting the use of mail-in ballots and automatic voting machines in all federal elections, nationwide.  Discuss the possible constitutional problems that such a move may entail.  10 points.

*  The President has not, actually, issued such an Executive Order; he has indicated, however, that he intends to do so, and the White House has indicated that the E.O. is in the process of being drafted. [see here or here]

Let's do a little exam issue-spotting on this one, shall we? If I'm grading your answers, I expect you to raise two pretty obvious constitutional problems here.

You should start with the relevant Constitutional text (Art. I, Sec. 4):

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

From that, two issues sort of jump right out at you, no?

The State legislatures are expressly given the power, in the first instance, to "prescribe" the "time, place, [or] manner of holding [federal] elections." This E.O. appears to be an attempt to do that; it would certainly affect the "manner" in which elections for federal officers are held, and probably the "time" and "place" of those elections as well (to the extent that millions of people rely on mail-in ballots in order to vote early (time) and when they are out-of-state (place)).  As such, it violates Art I Sec. 4..The federal government is given the power to "make or alter" the States' time/place/manner regulations, but that power is expressly granted to Congress - not to the President.  The President, acting unilaterally via an Executive Order, has no power to compel the States regarding their rules about the time/place/manner of those elections.

I'm only awarding 10 points for this question because it is too damn easy. This EO is close to being laughably unconstitutional. Any first-year law student who doesn't see that is really asleep at the switch. It's the sort of thing that only a law professor would dream up, too ridiculous to contemplate in the real world.  It's a gimme, just setting you up for the more complex interpretive questions to come later in the exam.

What does this say about our President, and about his legal advisers? It says - once again - that they don't give a damn about whether or not what they're doing is, or is not, constitutional. Unless they all flunked Con Law I, which I doubt, anyone the President might conceivably consult for a legal opinion on the constitutionality of what he wants to do -- from the Attorney General, the Solicitor General, the White House Counsel, and the Director of the Office of Legal Counsel, to the lowliest legal intern at the DOJ -- would surely know that he doesn't have the power to do what he wants to do, and that at some point a court, quite possibly the Supreme Court, will issue a final judgment to that effect and the Order will be of no further force and effect.

But in the meantime, . . . In the meantime, he does whatever he wants to do and accomplishes whatever he wants to accomplish. It's very much an "in the meantime" strategy, and it's working very well thus far.  He'll issue the Order, and then he will have his Executive agencies issue regulations designed to scare States into complying with it - cutting off their highway funds, or their Medicaid reimbursements, or their FEMA grants, if they don't comply with the Order. The matter will of course be litigated immediately. But given all of the ways that the government can slow things down - the jurisdictional and standing challenges, the challenges to class certification, the motions to disqualify or dismiss, the requests for stays, the appeals of adverse rulings in any or all of the foregoing - it will be, at a minimum, a year or so before the Supreme Court says, finally, "Of course you're not allowed to do this; there is no other remotely plausible way to read Art. I Sec. 4."

And by that time, if he and his advisers get their timing right, the midterm elections will have come and gone, and millions of people will have had their election rights abridged by unconstitutional executive action. Which is, of course, the intended result.

So that's what it says about Trump and his legal team.

And what does it say about the country? That we now have a President who - I know I'm being repetitive, but if anything bears repetition, it's this - doesn't care whether his actions comply with the Constitution, and it barely merits a mention for a few days in the infosphere and then disappears, a rock dropped in the ocean. I get it: There's no point to keep talking about it, over and over again. But this is a blog about the important legal issues of the day, and failing to talk about this feels a little too close to complicity for my taste.

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[Eugene Volokh] Court Strikes Down W.Va. "Doxing" Law Banning Publishing Home Addresses and Phone Numbers of Certain Officials

From Judge Michael Urbanski (W.D. Va.) Monday in Jackson v. Whitepages, Inc. (N.D. W. Va.) (emphasis added):

Section E of West Virginia's Daniel's Law provides a cause of action for damages and prohibits "disclos[ing], redisclos[ing] or otherwise mak[ing] available the home address or unpublished home or personal telephone number of any active, formerly active, or retired judicial officer, prosecutor, federal or state public defender, federal or state assistant public defender, or law-enforcement officer under circumstances in which a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property." …

Section E regulates speech based on its content … [and] cannot survive strict scrutiny because it is not narrowly tailored. Indeed, comparing West Virginia's Daniel's Law to the many other state and federal statutes aimed at the same legislative objective provides a helpful illustration of the ways in which West Virginia's statute is far from the least restrictive means of achieving West Virginia's undeniably compelling interest in protecting its public servants from harassment and violence….

[C]ourts consistently hold that factual disclosures of individuals' personal data, including Social Security Numbers, ages, and dates of birth, constitute speech. See, e.g., Ostergren v. Cuccinelli, 615 F.3d 263, 271 (4th Cir. 2010) (concluding that posting unredacted Virginia land records containing Social Security Numbers on a website was speech); IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1120 (9th Cir. 2020) (treating publication of the ages and dates of birth of entertainment industry professionals as speech). Indeed, lower courts have specifically found that disclosures of public officials' and law enforcement officers' home addresses and phone numbers are speech. See, e.g., Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1012-13 (E.D. Cal. 2017) (finding that a law barring disclosure of "home address or telephone number of any elected or appointed official" regulated "speech"); Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1249 (N.D. Fla. 2010) (deciding that posting information on the internet concerning a police officer's name, age, family members, address, phone number, and email address was protected speech); Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1141 (W.D. Wash. 2003) (identifying as a regulation of speech a state statute prohibiting selling or publishing the addresses, phone numbers, birthdates, or Social Security Numbers of law enforcement officers). And of most significance here, in Atlas Data Privacy Corp. v. We Inform, LLC (hereinafter, "Atlas"), which concerned New Jersey's Daniel's Law, a district court recently concluded that the disclosures of law enforcement officers' home addresses and phone numbers prohibited by the New Jersey statute were speech. 758 F. Supp. 3d at 334….

More specifically, West Virginia's Daniel's Law regulates speech based on its content…. West Virginia's Daniel's Law … "single[s] out … for differential treatment" the topic of judicial and law enforcement officers' home addresses and phone numbers. Application of West Virginia's Daniel's Law turns on what, for example, a whitepages.com entry says—whether its "communicative content" or "topic" or "subject matter" is the address of a protected person—and not, as with the on-premises/off-premises distinction in City of Austin, simply what is said vis-à-vis where it is said. West Virginia's Daniel's Law thus falls comfortably within the definition of content-based regulation of speech articulated in Reed and City of Austin….

Jackson argues that West Virginia's Daniel's Law pertains to merely commercial speech. Jackson cites the fact that defendants "are driven by an economic motivation." He also compares disclosures of addresses and phone numbers on "people search" websites to advertisements because "[c]ompanies (including some Defendants) will post the home addresses and phone numbers of persons to draw customers to their sites, who in turn will then see advertisements for other goods and services."

Both of these arguments would apply just as well to The New York Times. Because even clearly protected speech often serves economic purposes, the Supreme Court has made clear that economic motivation is not the touchstone of commercial speech analysis. Instead, Supreme Court precedents define commercial speech narrowly as "expression related solely to the economic interests of the speaker and its audience," or "speech that does no more than propose a commercial transaction." …

Finally, Jackson argues that West Virginia's Daniel's Law should receive special consideration as a law protecting privacy. This argument builds on the analysis of New Jersey's Daniel's Law conducted by the district court in Atlas. There, the court determined that New Jersey's Daniel's Law was a "privacy statute" because it concerns judges' and other protected persons' "right to be let alone insofar as their home addresses and unpublished phone numbers are concerned." On this basis, the Atlas court declined to apply Reed and strict scrutiny, despite having concluded that New Jersey's Daniel's Law was indeed a content-based regulation of speech. Instead, the Atlas court applied a specialized privacy analysis drawn from Supreme Court precedents "recogniz[ing] the tension that exists between privacy law and the right of freedom of speech and the press." Specifically, the court cited the Supreme Court's cases analyzing statutes prohibiting the dissemination of truthful information about the identities of rape victims and juvenile offenders, such as Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), and The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Atlas court reasoned that because these privacy-related cases did not use the words "strict scrutiny," the tests they applied must have been more permissive….

The Atlas court's analysis does not sway this court's conclusion that strict scrutiny applies to West Virginia's Daniel's Law. Fourth Circuit precedent requires this court to apply strict scrutiny, regardless of whether precedents like Daily Mail and Florida Star apply….

Section E of West Virginia's Daniel's Law fails strict scrutiny. Even though West Virginia's Daniel's Law serves a compelling state interest, Section E is not narrowly tailored….

The least restrictive means analysis in this case is particularly straightforward because, rather than dealing in hypothetical alternatives, the court has the benefit of comparing West Virginia's Daniel's Law to a variety of analogous state and federal statutes that are more narrowly tailored and burden far less speech in pursuit of the same compelling legislative goal. Section E of West Virginia's Daniel's Law is unique among these laws in lacking speech-protective limitations on liability—most significantly, a notice requirement. In fact, Section E of West Virginia's statute might be the most restrictive of the available means for achieving its compelling interest.

States and the federal government have pursued a variety of measures to shield the home addresses and phone numbers of judicial and law enforcement officers from discovery by individuals wishing to do them harm. Some state statutes limit government disclosure of protected persons' home addresses and phone numbers in the first place, for example, by prohibiting public agencies from disclosing protected persons' home addresses and phone numbers through freedom of information act requests or public land records. Unlike West Virginia's Daniel's Law, these measures do not target private speech, and many are even more limited in that they only restrict speech concerning covered information where a protected person has made a specific request that their information be shielded.

Other states impose heightened criminal penalties on those who publish sensitive information, such as an individual's home address, "with the intent to coerce, intimidate, or harass," while "knowing or having reason to know that person is a law-enforcement officer, … , or an active or retired federal or [state] justice, judge, or magistrate." However, because these criminal statutes require both an intent to harass or otherwise harm and actual knowledge that the information pertains to a protected individual, even these criminal measures limit the risk that they will restrict more speech than necessary.

The state and federal statutes to which West Virginia's Daniel's Law bears the closest resemblance are those imposing civil liability on private entities for disclosing home addresses and phone numbers belonging to judicial and law enforcement officers. However, Section E of West Virginia's Daniel's Law stands out even amongst these laws due to Section E's lack of a notice requirement as a prerequisite to a suit for damages. The federal Daniel Anderl Judicial Security and Privacy Act and the laws of at least nine states, including New Jersey's Daniel's Law, create a private right of action that is only available after a judge, law enforcement officer, or other potential plaintiff has provided notice (usually written notice) to the disclosing entity that they wish to have their information removed from where it is being displayed. Two of these state statutes make damages available immediately upon the disclosing entity's failure to take the requested action within a statutorily designated period, but the remainder of these statutes limit liability still further by providing only injunctive or declaratory relief as an initial matter and permitting damages to be recovered only upon the disclosing entity's failure to comply with an injunction or declaratory judgment.

By contrast, Section E of West Virginia's Daniel's Law creates a private right of action for a plaintiff to seek actual damages—indeed, liquidated damages "not less than $1000 for each violation"—and even punitive damages under certain circumstances, as well as appropriate preliminary or equitable relief, without ever providing a potential defendant with notice that posting that plaintiff's information violates the law…. West Virginia's law thus places the burden on the would-be speaker to overcome the impediment to speech, rather than placing the burden on those who would like to advance a countervailing interest in safety. This is constitutionally problematic because the free flow of speech ought to be presumptively favored, in light of the enumeration of freedom of speech in the First Amendment as an interest that ordinarily trumps competing unenumerated governmental interests.

{Section H of West Virginia's Daniel's Law contains a procedure by which judicial and law enforcement officers and their immediate family members can request that a disclosing entity remove their home address or phone number from where it is being displayed. That portion of West Virginia's Daniel's Law is civilly enforceable through injunctive or declaratory relief and attendant attorney's fees and litigation costs, but not damages. Accordingly, Jackson did not rely upon Section H in this suit, which is seeking damages, and Section H is not at issue in this case.

Indeed, nothing in this opinion and accompanying order limits Jackson's ability to invoke the protection of Section H of West Virginia's Daniel's Law by requesting that defendants remove his address and phone number from their websites. But that issue is not before the court.

In any event, because the two provisions set out distinct enforcement schemes, the constitutionality of one need not affect the constitutionality of the other. On the one hand, Section H might be constitutional, even if Section E is not, because it is more narrowly tailored both due to its notice requirement and its less extensive remedies. On the other hand, even if Section H were deemed constitutional, that would not save Section E, because Section E imposes civil liability without notice, and the notice provisions of Section H are not somehow transferrable to Section E. Nevertheless, one might rely on Section H as further evidence that Section E is not narrowly tailored because Section H demonstrates that even West Virginia's statute itself contains a less restrictive means of achieving the statute's overall compelling objective.}

Section E's lack of a notice requirement also renders the provision overinclusive in that it burdens more speech than necessary to protect the safety of judicial and law enforcement officers because it risks chilling even speech unrelated to judicial and law enforcement officers…. Defendants' websites, for example, display vast amounts of data pertaining to individuals throughout the country. Although receipt of a request to take down a given individual's information would alert even a high-volume speaker like defendants to the fact that that a potential West Virginia's Daniel's Law plaintiff's data is among the data points they display, it is difficult to imagine a mechanism by which they could preemptively sift through the data they display to identify every individual who might have served as a law enforcement officer in West Virginia at some point in their career. W. Va. Code § 5A-8-24(c)(4) (defining "law-enforcement officer" broadly)….

This is not to say that a notice requirement is the only conceivable way of narrowly tailoring statutory protections for the home addresses and phone numbers of judicial and law enforcement officers and other public servants. The First Amendment sharply curtails the ability of legislators to impose content-based restrictions on speech, but to the extent it permits any such restrictions to survive strict scrutiny, the First Amendment requires narrow tailoring, not a particular means of narrow tailoring, which ultimately remains a legislative judgment. However, even beyond its lack of a notice requirement, Section E of West Virginia's Daniel's Law lacks another important, albeit related, speech-protective limit on liability[:] … a knowledge requirement. The Supreme Court has specifically recognized the tendency of statutes restricting speech without a knowledge requirement to exert a chilling effect. [Details omitted. -EV]

Here's what the court had to say about Kratovil v. City of New Brunswick (N.J. 2025), which upheld the similar (but not identical) New Jersey law:

The facts of Kratovil were far more analogous to those of Daily Mail and Florida Star than are those at issue here. The Kratovil plaintiff was a journalist who learned through a lawful records request that the voting address of the New Brunswick, New Jersey Police Director was in the Borough of Cape May—a two-hour drive from New Brunswick. The journalist filed a complaint seeking declaratory and injunctive relief from application of New Jersey's Daniel's Law, hoping to eventually publish a story on the issue of whether the Police Director was adequately performing his duties—a topic of public concern. Because Daily Mail and Florida Star specifically concerned newspaper publication of truthful, lawfully obtained information of public concern, the test they articulated fits the journalistic interests at issue in Kratovil. By contrast, West Virginia's Daniel's Law has no particular focus on journalism.

Furthermore, Kratovil declined to consider whether Daily Mail and Florida Star were equivalent to the strict scrutiny called for by Reed v. Town of Gilbert (2015). The Supreme Court of New Jersey applied Daily Mail and Florida Star "alone," as the complaint and briefs were premised on the standard set in the Daily Mail line of cases.

Finally, the Kratovil court's application of Daily Mail and Florida Star was not equivalent to the privacy balancing test deployed in Atlas. The Kratovil court used the finding that the Police Director's home address was truthful, lawfully obtained information related to a story on a matter of public significance as a trigger for applying the "second inquiry in the test prescribed in Daily Mail and Florida Star" as to "whether the challenged law serves a need to further a state interest of the highest order." In practice, this "second inquiry" was strict scrutiny, as the Kratovil court considered both the magnitude of the state's interest and narrow tailoring. By contrast, the Atlas court used its finding that the home addresses and unpublished home telephone numbers shielded by New Jersey's Daniel's Law generally "are not matters of public significance," not as a threshold guide as to which test to apply, but as a factor weighing against First Amendment protection. Kratovil is thus less like Atlas and more like the cases that use Florida Star and Daily Mail as a basis for applying strict scrutiny distinct from a law's content-based or content-neutral status.

Ultimately, the only meaningful divergence between Kratovil's analysis of New Jersey's Daniel's Law and this court's analysis of West Virginia's Daniel's Law is in the conclusion reached as to narrow tailoring. As explained elsewhere in this memorandum opinion, that divergence is simply a result of differences between the two statutes. New Jersey's Daniel's Law is indeed more narrowly tailored than Section E of West Virginia's Daniel's Law, principally because New Jersey's statute contains a notice requirement. In short, while New Jersey's Daniel's Law is narrowly tailored, West Virginia's Daniel's Law is not.

Natalie C. Schaefer and Caleb B. David (Shuman McCuskey Slicer PLLC) represent defendants.

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[Eric Claeys] Natural Property Rights: A VC Preview

I'm blogging 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. On Monday,, I summarized the book's normative theory. Yesterday, I explained how the theory applies to acquisition law and policy, and what happens when a community chooses to ignore the moral constraints associated with natural law.

Today, I'll explain how the theory applies to ownership, leases, … and the arcane estates and future interests used in American and "Anglo-sphere" legal systems. Along the way, I'll also consider some familiar critiques of property, by scholars who think that property threatens social and political equality.

Let me start with ownership. Ownership constitutes a relatively specialized form of property. Ownership supplies the model for property in land. Land owners are entitled to sue trespassers for trespassing whether or not they damage the premises and whether or not the owners are actually using the land. But ownership does not supply the model for property in water rights (rights to the use of river water and its flow). Water-rights holders cannot complain that others are interfering tortiously with their rights unless those others interfere with ongoing water uses. The rights to alienate or assign property come automatically with ownership; they don't attach automatically to usufructs.

But even though ownership is only one form of property, it is probably the most familiar form. Most people associate "property" with their personal possessions, their real estate, and their wealth. All of those resources can be owned.

And ownership makes property controversial. How is it just for one person to exclude everyone else from resources everyone could use? As I've explained in my earlier posts, a natural property right is qualified by a sufficiency proviso. How is it fair for an owner to exclude others who have rights corresponding to the sufficiency proviso? Questions like these have been  asked by many writers and scholars— Pierre-Joseph Proudhon 200 years ago, and Joe Singer and Jeremy Waldron relatively recently.

But those questions assume a mistaken premise—that property doctrines need to track moral rights in every detail. Speed limits can secure rights to travel and to be safe even though they stop some drivers from driving fast when they can do so safely. So too for ownership. Even if, on paper, the sufficiency proviso seems violated by trespass and other doctrines that give owners managerial authority far beyond what they need to use what they own.

The case for ownership goes like this. In principle, all the people in a community are entitled to acquire and use reasonable shares of the resources the community controls. In principle, though, those natural rights are mere usufructs. So every person who started foraging land could keep foraging it, subject to others' claims under the sufficiency proviso. And no one would have very secure rights to assign away or receive others' usufructs. Even though ownership excludes everyone but the owner from the resource owned, it gives everyone opportunities to hold and use other resources much more securely. And, more secure freedom to acquire or assign away those resources.

So ownership can be justified if, after it's instituted, people get more opportunities in practice to use the possessions they own productively, or to acquire new resources that they didn't own. Although the case for ownership is implicitly empirical, it is understandable and superficially plausible. The main driver in the case is Locke's argument: Ownership gives owners broad managerial authority. That authority encourages them to labor productively, and that productivity "over-ballance[s] the Community" of goods that would exist in a regime of open access and usufructs. The sufficiency proviso can be satisfied in substance. If enough owners produce new resources for people who don't have them. And if people who don't own shares of some resource can acquire the shares they need by work, saving, and purchase.

Property law can respect the sufficiency proviso even more. Some doctrines limit ownership to respect sufficiency interests—common law common carrier principles, or doctrines that recognize public rights of way to traverse private land. But property law respects the sufficiency proviso most in two ways.

First, ownership creates clear, secure rights to assign and receive property. And second, property law expands the options owners have to subdivide their property. When an owner builds an apartment building with 100 units, 100 renters get housing satisfying their interests under the sufficiency proviso. When a landowner passes on a present estate and several future interests, the recipients of all the various interests get secure rights to acquire and use the land consistent with their sufficiency interests.

In current scholarship, though, there isn't any satisfying normative theory why property law should recognize proprietary rights more limited than ownership rights. (In what follows, I'll call all of those limited rights "component rights"; a life estate and a reversion "compose" a fee simple when they're put back together.) What scholarship there is relies on rough utilitarian interest-balancing. Natural rights account for the relevant concerns better, because they focus more on the rights of the people threatened most by different property rights.

Any new component right affects the rights of three distinct classes of people. The first class consists of owners. Clearly, component rights give owners ways to exercise their property rights more effectively and productively. When apartment owners make money off of rentals, if they use the rent productively they use the leaseholds productively, too. When someone passes land along to relatives through a life estate and future interests, property law helps her derive productive use from it—the sociable uses she'll get from helping her relatives survive and thrive.

Any new component right must also respect the rights of the people who stand to receive leaseholds, present possessory estates, and other component rights (here, "assignees"). But component rights obviously respect the rights of assignees. The more property rights there are to go around, the more the sufficiency proviso is satisfied.

When a legal system recognizes a new component right, though, it also threatens the rights of people who don't stand to receive the right. Here, I'll call such people "third parties." And a lot the doctrines in a 1L Property course protect the rights of third parties.

To begin with, people who don't hold property in a resource have rights of notice—to know who does have rights in the resource, and what they need to do to avoid violating those rights. These notice rights are the flip sides of the claim-communication requirement.

To provide that notice, a state needs to establish reliable rules confirming that owners have created and assigned leases or other component rights. Statutes of Frauds do that. A state also needs to make it reasonably easy for neighbors and other third parties to know who has what rights in an owned piece of property. Recordation statutes do that. A state also needs to stop owners from creating property rights that are so specialized and strange that no one else will be able to understand or obey them. An obscure doctrine, called "the numerus clausus principle" (Latin for "the number is closed") takes care of that.

Separately, when an owner assigns component rights to a group of assignees, the assignments threatens rights that arise out of the sufficiency proviso. It is far easier to acquire property from one person who owns it than from several people who hold different fractionated rights in it.

As with claim-communication concerns, property law addresses sufficiency concerns in many different ways. Assume that an owner assigns away present estates and future interests but insists that anyone who takes the premises must use it for a few specific uses. The use-restriction may be declared illegal and void as against public policy. That doctrine tries to protect the sufficiency interests of the people who might acquire the land later.

Separately, the Rule Against Perpetuities purges out of a property system future interests that won't clearly vest or fail within 21 years after everyone alive at the conveyance dies. The Rule is a formalistic and blunt tool, and it may be an ineffective tool. But it has a reasonable goal, to get rid of conveyances that seem likely to cloud title in a lot in the future. Whether the Rule advances that goal well, it is at least trying to satisfy rights associated with the sufficiency proviso.

Today, I've discussed the legal rights of possession and disposition that usually run with ownership. But the right to use a resource also runs with ownership. Tomorrow, I'll discuss use rights—in nuisance, and in servitudes. And since nuisance examples loom large in law and economic scholarship, tomorrow I'll contrast natural rights and economic analyses of nuisance as I contrasted rights-based and egalitarian accounts of ownership today.

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