Eugene Volokh's Blog, page 56

[Eugene Volokh] We'll Try, But It's Going to Be Dicey ….

A bit of pragmatic candor from an order today in Point Bridge Capital, Inc. v. Johnson (N.D. Tex.):

Plaintiffs' Motion to Permit Remote Trial Testimony of Expert Witness … states that their expert has been hospitalized for heart problems and is under strict doctor's orders not to travel. Plaintiffs submit a sworn affidavit in support of their Motion…. Defendant indicated that he would leave the determination up to the undersigned. Thus, the Court assumes he is unopposed. Accordingly, the Court finds it appropriate to GRANT Plaintiffs' Motion under these extenuating circumstances.

The Court notes that due to the age of the Courthouse, and the general policies in the Fort Worth Division, remote testimony has only ever been attempted once before by the Court—under similarly appropriate circumstances. That attempt was unsuccessful and as a result the Court was forced to strike the witness. Thus, the Court highly recommends that Plaintiffs contact the Court IT as soon as possible.

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[Ilya Somin] Trump's Plan to Impose 50% Tariffs on Brazil Highlights Illegal and Harmful Nature of his Trade Policy

[It's an obvious abuse of emergency powers, a claim to unconstitutional delegation of legislative power, and a threat to the economy and the rule of law.]

Brazilian flag. (NA)

 

Earlier today, President Donald Trump announced he intends to impose 50% tariffs on imports from Brazil, citing that country's prosecution of former President Jair Bolsonaro, for the latter's attempt to stage a coup to keep himself in power after losing an election. Bolsonaro is a political ally of Trump's. The incident highlights the illegal and dangerous nature of Trump's tariff policy.

The administration has not made clear what law they will use to impose the Brazil tariffs. But reporters tell me officials have indicated Trump will use the International Emergency Economic Powers Act of 1977 (IEEPA), which is also the statute at issue in the lawsuit against Trump's "Liberation Day" tariffs, filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by this massive trade war.

The Brazil situation exemplifies why Trump's use of IEEPA is illegal and harmful. Brazil's prosecution of Bolsonaro is pretty obviously not an "emergency" or an "unusual and extraordinary threat"  to the US economy or national security. Both of these conditions are required to invoke IEEPA.  This situation just underscores the danger of allowing the president to define those terms however he wants, without any judicial review, as the administration claims he can.

The ostensible rationale for the Liberation Day tariffs is trade deficits, despite the fact that such deficits are not an "emergency," not at all "extraordinary" or  "unusual," or even a threat at all. On these points, see the excellent amicus brief in our case filed by leading economists across the political spectrum.

The Brazil tariffs are even more indefensible than Trump's other IEEPA tariffs. In addition to the Bolsonaro prosecution, Trump's letter announcing the new tariffs cites that country's supposedly unfair trade policies.  But the US actually has a substantial trade surplus with Brazil, of some $7.4 billion per year, according to the office of the US Trade Representative. In combination with  Brazil's retaliatory tariffs, Trump's massive new tariffs against that country will predictably harm consumers and businesses in both countries, for little if any gain.

If the president can use IEEPA to impose tariffs for completely ridiculous reasons like these, he can use it to impose them against any nation for any reason. That reinforces our argument that the administration's interpretation of IEEPA leads to a boundless and unconstitutional delegation of legislative power to the executive. A unanimous ruling in our favor by the US Court of International Trade concluded that IEEPA "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." I hope appellate courts will reach the same conclusions.

The president's attempt to use tariff policy to punish Brazil for prosecuting one of his political allies underscores the threat that unlimited executive tariff authority poses to the rule of law. Tariff policy - like other significant economic policies - should be based on clear, stable rules that do not vary based on the whims of any one person, and cannot be used to punish the president's political enemies or reward his allies. Trump's tariff power grab is a huge step towards replacing the rule of law in trade policy with the unilateral rule of one man. That's yet another reason why courts should strike it down.

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[Josh Blackman] Two Supreme Court Roundups In Two Cities In One Day

[Or, from one swamp to another swamp.]

This morning, at 11:00 ET, I spoke at the "Scholars and Scribes" Supreme Court Roundup at the Heritage Foundation. And this evening, at 6:00 CT, I spoke at the Houston Federalist Society's Supreme Court Roundup. It has been some time since I did two events in two cities in the same day. (Back in 2012, I visited six airports in thirty-six hours.) Today's travel was not easy to execute.

The event at Heritage wrapped at 12:15. Approximately one minute later, I was in a waiting Uber, en route to Reagan National Airport. I placed the suitcase next to me to avoid having to waste time going to the trunk. Boarding for my flight began at 12:25, as I was crossing the Fourteenth Street Bridge. I arrived at the curb of Terminal 2 at 12:31. I made it through security and to my gate in about six minutes. I scanned my boarding pass at 12:38, just after they called my name before closing the boarding. I was in my seat by 12:40. I landed in Houston around 3:00, with plenty of time to spare before the evening event.

Why did I engage in this insane turnaround? As it turned out, today there were thunderstorms in both D.C. and Houston. (Summer travel is actually worse than winter travel, as airports can remain operational during snow, but not during lightning.) Looking at the radar, I realized there was a good chance that my original flight, which was slated to leave D.C. at 3 ET and land in Houston at 5 CT, would be delayed. So I called an audible and switched to the earlier flight. I would rather rush to the airport to try to catch the earlier flight. If I had missed it, I would just wait for the later flight.

As things turned out, my prediction was correct. My original flight would be delayed about two hours, and I would have missed most of the FedSoc event in Houston.

This may sound obsessive, but whenever I travel, I track the weather in both my departing and arriving city, and also keep an eye on all flights between those airports that day in case I can switch. I also track the inbound flights (that is, where my flight is coming from), and the weather in that city. And in rare cases, I will track the weather in the inbound's inbound city. I was recently flying from LaGuardia to Dulles, and by tracking three flights ahead, realized my late-night flight would likely get cancelled, so I switched to Amtrak and taxi'd to Penn Station. It is very, very rare that I am on a cancelled flight, in large part because I am proactive about getting off those flights. As Gary Leff from View from the Wing explains, inclement weather is like the Zombie Apocalypse--you have to keep moving.

You can watch the Scholars and Scribes event here:

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[Ilya Somin] Overview of the Amicus Briefs Filed in Our Tariff Case

[The diversity and quality of the briefs opposing Trump's "Liberation Day" tariffs speaks for itself. ]

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Yesterday, the Liberty Justice Center and I  filed our appellate brief VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs on behalf of five small businesses. We are working with Neal Katyal and Michael McConnell, both leading constitutional law scholars and appellate litigators. The case is before the US Court of Appeals for the Federal Circuit, consolidated with a related case filed by 12 state governments, led by Oregon. We are defending a unanimous ruling in our favor by the US Court of International Trade. The key issue, as before, is that the government claims the International Emergency Economic Powers Act of 1977 (IEEPA) grants the president unlimited power to impose tariffs on any nation, in any amount, for any reason, for any length of time. We contend IEEPA grants no such authority, and if it did it would be an unconstitutional delegation of legislative power to the executive.

Yesterday was also the deadline for amicus briefs filed in support of our side. This post is an overview of some of the most notable ones. The bottom line is that rarely has a case attracted such a broad and impressive range of amici from across the political spectrum, and different sectors of the economy and civil society.  Many of the briefs also make important points. By contrast, there are only two amicus briefs supporting the government, both filed by divisions of Stephen Miller's right-wing nationalist America First organization.

There are a total of eighteen briefs backing our position, so I can only comment on a few aspects of them. I have included links, so interested readers can get more detail from the briefs themselves.

Advancing American Freedom, et al.: AAF is a conservative organization founded by former Vice President Mike Pence. Together with them on the brief are several other consevative and libertarian groups, including the Independent Institute and the Mountain States Policy Center. The brief focuses on why the government's interpretation of IEEPA violates constitutional nondelegation constraints on the transfer of legislative power to the executive. It is particularly strong on the original meaning.

George Allen, et al.: This brief is on behalf of a bipartisan group of prominent legal scholars and former government officials. The legal scholars include Harold Koh (Yale), Richard Epstein (NYU), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana). Epstein is probably the world's most prominent libertarian legal academic, while Koh is a prominent left-liberal scholar known for his work on national security law.  There are few, if any, other constitutional cases where both of them join the same amicus brief! The ex-government officials former Republican Attorney General Michael Mukasey, former GOP Virginia Governor and Senator George Allen, former Senator and Secretary of Defense Charles Hagel, and more.  The brief especially focuses on the argument that IEEPA doesn't authorize tariffs, and that there is no genuine "emergency" here.

Brennan Center for Justice (NYU): The Brennan Center is a leading left-liberal research institute focusing legal issues. Among the co-authors is Elizabeth Goitein and Katherine Yon Ebright. Goitein is one of the nation's leading experts on emergency powers, and the brief gives a compelling explanation of why trade deficits do not qualify as an "emergency" or an "unusual and extraordinary threat" (both are necessary to invoke IEEPA). For those keeping track, Goitein also opposed President Biden's abuse of emergency powers in the student loan case, as did I.

Burlap and Barrel: This brief is on behalf of one the many thousands of businesses severely harmed by the tariffs. It's a great illustration of why protectionism makes no economic sense. Burlap and Barrel imports spices, many of which are difficult or impossible to produce in the US. Imposing tariffs on their products harms American consumers and businesses, for little if any gain to anyone else. Several of our own clients are in the same positions, include lead plaintiff VOS Selections, which imports wine; the wine they import, in many cases, simply cannot be produced in the US, given differences in climate and soil.

Cato Institute: Cato is the nation's leading libertarian think tank, and their brief focuses on the constitutional nondelegation issue, providing a strong overview of the relevant history and original meaning. In addition to my main job as a law professor at George Mason University, I am the Simon Chair in Constitutional Studies at Cato. But I had no role in writing the brief.

Consumer Watchdog: This group promotes consumer interests. The brief is co-authored by prominent legal scholar Alan Morrison (George Washington Univ.), who is a separation of powers expert. The brief focuses on nondelegation, and is notable for its analysis of how the Supreme Court's recent decision in FCC v. Consumers' Research bolsters our case on that issue.

Crutchfield Corp.: Crutchfield is another business severely harmed by the tariffs. They sell consumer electronics products.

Economists: This brief is on behalf of a large group of prominent economists spanning the political spectrum. They include 2024 Nobel Prize winner Daron Acemoglu, Gregory Mankiw (Harvard, former Chair of the Council of Economic Advisers under George W. Bush), Jason Furman (CEA chair under Barack Obama), Kimberley Clausing (UCLA, leading expert on international economic policy), and many more. The brief represents the consensus view of the economics profession, and explains why trade deficits are not an "emergency" or an "unusual and extraordinary threat" of the kind needed to trigger IEEPA. It also describes why the massive Liberation Day tariffs are a major policy issue triggering application of the major questions doctrine. The brief was drafted by a team led by big-name appellate litigator Adam Unikowsky.

Former Government Officials & Legal Scholars: This brief, on behalf of a group of mostly Republican former government officials, is coauthored by well-known legal scholar Mark Lemley (Stanford). Signatories include former Massachusetts Gov. Bill Weld, Peter Keisler,  several former members of Congress, and Ty Cobb - former special counsel to President Trump (not to be confused with the baseball Hall of Famer of the same name).

Goldwater Institute and Dallas Market Center: Goldwater is a libertarian-leaning public interest law group. Their brief focuses on the nondelegation doctrine, and is particularly strong on the history and original meaning, showing how the Trump tariffs replicate abuses perpetrated by 17th century British monarchs whose imposition of taxes without congressional authorization set dangerous precedents the Founding Fathers sought to avoid replicating.

191 Members of Congress: This brief is on behalf of 161 Democratic members of the House and 30 Democratic Senators, including both the House and Senate minority leaders. The principal authors - Georgetown law Prof. Jennifer Hillman and Peter Harrell, were among those who first developed the idea of challenging the IEEPA tariffs using the major questions and nondelegation doctrines. The brief does an excellent job of presenting these and related points.

New Civil Liberties Alliance: NCLA is a conservative public interest law group, which filed the first case challenging the IEEPA tariffs (albeit limited to those focused on China). Their brief explains why IEEPA does not authorize tariffs, and should not be interpreted as granting that power merely because the predecessor Trading With the Enemy Act might have done so.

NYU School of Law Institute for Policy Integrity: IPI is a research institute focused on administrative law. Professor Richard L. Revesz (NYU), the principal author is a leading expert on administrative law and regulation. The brief is a thorough and compelling discussion of why Trump's use of IEEPA to impose massive tariffs runs afoul of the major questions doctrine.

Peter Sage: Mr. Sage is a retiree harmed by the tariffs, primarily in his capacity as a consumer.

Princess Awesome, et al (Pacific Legal Foundation): PLF is a leading libertarian public interest law firm, and they filed this case on behalf of their clients in Princess Awesome v. CBP - a case challenging Trump's tariffs similar to our own. The brief is notable for its compelling analysis of different variants of nondelegation doctrine. PLF is also my wife's employer; but she is not one of the authors of the brief, nor is she working on their tarif case.

Protect Democracy Project: This brief focuses on the abuse of emergency powers, and why emergency powers issues are subject to judicial review. PDP is a bipartisan group focused on constraining abuses of executive power.

US Chamber of Commerce & Consumer Technology Association: Many have asked me why major business organizations weren't supporting our case. Well, the Chamber of Commerce - the nation's  biggest business federation - decided to step up! Their brief explains why IEEPA doesn't grant tariff authority, and outlines the grave harm Trump's trade war inflicts on the business community, and the American economy generally.

Vikram Amar & Mickey Edwards: Amar is a prominent constitutional law scholar, and Edwards is a former Republican member of Congress. Their brief emphasizes that delegations of legislative power to the executive should be narrowly construed, because the president's veto power makes them difficult to "retrieve" after the fact, creating a dangerous "one-way ratchet."

There were only two amicus briefs supporting the government, generated by different divisions of America First:

America First Legal Foundation: This one mostly just echoes the government's arguments.

America First Policy Institute: This one makes the weak argument that all of Trump's tariffs are authorized by Section 338 of the Smoot-Hawley Tariff Act of 1930. The Trump Administration chose not to rely on this claim, and for good reason.

The post Overview of the Amicus Briefs Filed in Our Tariff Case appeared first on Reason.com.

[Ilya Somin] Courts Can Check, and Have Checked, Executives' Military Judgment

[Katherine Yon Ebright and Leah Tulin of the Brennan Center make the case against judicial deference to Trump's invocation of the Alien Enemies Act of 1798.]

A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Last month, Brennan Center attorneys Katherine Yon Ebright and Leah Tulin, and I submitted  an amicus brief in the Fifth Circuit case of W.M.M. v. Trump, opposing the Trump Administration's use of the Alien Enemies Act of 1798 as a tool for peacetime detention and deportation of immigrants. Katherine is a leading expert on the AEA and its history. The brief was filed on behalf of the Brennan Center for Justice at NYU, the Cato Institute, prominent law-of-war scholar Prof. John Dehn, and myself.

Our brief was favorably cited by Fifth Circuit Judge Leslie Southwick in last week's oral argument in the case. Katherine and Leah have written this guest post addressing some key issues raised in the argument, and the AEA litigation more generally. I agree with virtually all their points! But what follows in the block quote is their work, not mine:

Last Monday, the Fifth Circuit heard oral argument in W.M.M. v. Trump, the first Alien Enemies Act challenge to make it to a circuit court in (somewhat) regular order rather than on an emergency motion.  Among the issues raised in the case — which finds its way to the Fifth Circuit at the Supreme Court's direction rather than on a standard appeal — is the propriety of President Trump's invocation of the 1798 law to deport scores of immigrants he alleges are members of Tren de Aragua, a Venezuelan gang.  As oral argument made clear, a central question is whether the judiciary may second-guess the president's determination that an "invasion" or "predatory incursion," a prerequisite for the law's use, is ongoing.

The Alien Enemies Act is a wartime law that affords the president tremendous regulatory, detention, and deportation power over noncitizens from hostile nations.  It can be invoked when Congress declares war or when a "foreign nation or government" has perpetrated or threatened an "invasion" or "predatory incursion" against U.S. territory.  On March 15, the president proclaimed that Tren de Aragua had perpetrated such an attack by facilitating unlawful migration and committing drug trafficking and other crimes.  He referred to these acts as "irregular warfare" and attributed the gang's activities to the nation of Venezuela, which he called a "hybrid criminal state."

Common sense, of course, tells us that the nation is not being invaded by Venezuela and that gang violence, while a serious issue, is not war.  Moreover, top administration officials, ranging from the CIA Director to the Chairman of the Joint Chiefs, have repeatedly told Congress the same thing.

No matter.  In the Fifth Circuit, the government is arguing that the courts "must defer" to the president's proclamation, even if they disagree that an invasion or predatory incursion is underway.  These matters, the government contends, are so heavily infused with political judgment that the courts are powerless to intervene.

The "political question doctrine" and other judicial deference doctrines have often precluded the courts' intervention in cases involving sensitive foreign policy and national security judgments.  To that end, the Fifth Circuit judges expressed uncertainty about the permissible scope of review.  Judge Oldham, in particular, asked whether any Supreme Court opinion supported the authority of the courts to "countermand the president of the United States in his determination regarding armed conflict" or to second-guess a chief executive, whether the president or a governor, in his identification of "an insurrection, an invasion," or other such events.

Petitioners' counsel, Lee Gelernt of the ACLU, rightly responded that the Supreme Court has repeatedly and specifically said that the judiciary may evaluate whether the Alien Enemies Act is properly invoked.  Gelernt also discussed the Court's cases regarding law-of-war detention at Guantanamo Bay, in which the judiciary has carved out for itself a role in assessing whether detainees are in fact enemy combatants.

Beyond these examples, there is another line of cases that affirms the courts' power to overturn executive decision-making in sensitive matters of war, peace, and public safety.  That caselaw begins with Sterling v. Constantin, a 1932 case in which the Supreme Court rejected a Texas governor's imposition of martial law.  While acknowledging that the governor had broad discretion to proclaim an "insurrection" as "chief executive officer of the state and commander in chief of its military forces," the Court ruled that the governor's proclamation exceeded his authority.  Because there was "never any actual riot, tumult, or insurrection" in reality, the governor's imposition of martial law fell beyond the "permitted range of honest judgment" an executive has for carrying out his constitutional obligation to faithfully execute the law.

Since 1932, Sterling's "permitted range of honest judgment" rule has been applied rarely but with great consequence.  As those following the Alien Enemies Act invocation may know, the law was last used in World War II to intern 31,000 noncitizens of Japanese, German, and Italian descent.  Several months after the United States entered the war, the Alien Enemies Act was complemented and quickly overshadowed by Executive Order 9066 — the authority used to incarcerate more than 120,000 Japanese Americans, including tens of thousands of U.S. citizens, on the West Coast.  Applying the rule in Sterling, the courts prevented this second authority from being applied to German Americans on the East Coast.

In Schueller v. Drum and Ebel v. Drum, courts rejected claims of military necessity made by General Drum of Eastern Defense Command, who sought to apply Executive Order 9066 to target German Americans in Pennsylvania and Massachusetts.  The judge in Schueller observed, "The normal civilian life of the area was being pursued . . . and it could not be honestly said that ordinary law did not adequately secure public safety."  The military could not use an exceptional wartime authority — even one signed by the president and backed by the Congress — to dislodge constitutional rights when no "exigency of war" existed in fact.

Schueller and Ebel were decided in 1943, at a time of immense concern and uncertainty regarding the national security.  They stood in stark contrast to the reflexive judicial deference on display in Korematsu v. United States, the 1944 Supreme Court case upholding Japanese incarceration on the West Coast that has since been rightly and roundly condemned as "wrong the day it was decided." Indeed, Schueller and Ebel have since been held out by some as evidence that German Americans were treated more fairly than Japanese Americans because of racial prejudice.  But those decisions also stand out as powerful examples of the critical role that the judiciary can and should play in protecting individual civil liberties against unsupported claims of a national security threat.

There are other cases that support the authority of the courts to check "manifestly unauthorized exercises of power," even in wartime.  Notably, Ex parte Milligan countermanded the president's approval of the use of military commissions in Indiana, citing "judicial knowledge that in Indiana the Federal authority was always unopposed."  We discuss Sterling, Milligan, and other relevant cases in an amicus brief filed in the Fifth Circuit on behalf of the Brennan Center, Cato Institute, and law professors Ilya Somin and John Dehn.

But Sterling, and particularly Schueller and Ebel, should weigh heavily in this case, given the Alien Enemies Act's role in World War II internments and the breadth of the power the administration is trying to unlock through its use of the law in peacetime.  A Department of Justice memorandum on the current Alien Enemies Act invocation mentions the possibility of warrantless house raids and summary deportations that bypass protections for refugees.  When the facts are so clear, and the stakes of judicial deference are so high, the courts must exercise their independent judgment lest they sanction another mistake that will echo through our nation and legal community for generations.

I (Ilya Somin) have previously criticized Trump's invocation of the AEA as beyond the scope of the statute in a variety of writings. See, e.g., here, here, here, and here. I have also explained why Trump's AEA deportations violate the Due Process Clause of the Fifth Amendment.

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[Eugene Volokh] Privacy/Confusion Concerns Can't Justify Ordering Search Engines Not to Report on Court Case

From Judge Tanya Chutkan (D.D.C.) today in U.S. v. Tamberg:

Defendant Alexis James Andreas Tamberg pleaded guilty to transmitting threats in interstate commerce in violation of 18 U.S.C. § 875(c) based on a series of Facebook messages threatening President Donald J. Trump and Congresswoman Alexandra Ocasio Cortez. In light of Tamberg's extensive mental health issues, which contributed to his criminal conduct, the Government sought and the court imposed a sentence of time served and two years' supervised release…. Defendant filed a Motion to Alter Judgment, asking the court to enjoin search engines, specifically, Google and Bing, from reporting on this case…. Tamberg represents that public reporting by search engines "leads to confusion" because he and his father have similar names. Defendant's name is Alexis James Andreas Tamberg; his father's name is Andreas Tamberg. According to Tamberg, the search engines report the case as "United States v. Andreas Tamberg," which "has negatively impacted" his father's life.

The court concluded that Tamberg lacked standing to raise his father's interests, but also added this:

Even if Tamberg could assert his father's privacy interests, the court could not grant the requested relief. Court orders restraining media reporting on criminal proceedings are presumptively unconstitutional under the First Amendment.

Courts may "appropriately delimit what trial participants, including the accused, can say publicly," but have very "limited authority to restrict the speech of the press and other outsiders to the litigation." To restrain speech by nonparties, the speech must "present[ ] a 'clear and present danger to the administration of justice.'" The restriction must be narrowly tailored to serve a compelling government interest.

The Supreme Court has refused to restrict "publication of information that would have been available to any member of the public who attended an open proceeding in a criminal trial" based solely on privacy interests. Cap. Cities Media, Inc. v. Toole (1983); see, e.g., Cox Broad. Corp. v. Cohn (1975) ("Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." (citation omitted)); Neb. Press Ass'n v. Stuart (1975) (Facts in criminal proceedings "are presumed to be in the public domain."); Sheppard v. Maxwell3 (1966) ("[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom."); Craig v. Harney (1947) ("What transpires in the court room is public property … There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."); Globe Newspaper Co. v. Superior Ct. (1982) (holding "Massachusetts' mandatory rule barring press and public access to criminal sex-offense trials during testimony of minor victims" violates the First Amendment); Fla. Star v. B.J.F. (1989) (barring civil liability where a newspaper publishes truthful information which it has lawfully obtained).

The post Privacy/Confusion Concerns Can't Justify Ordering Search Engines Not to Report on Court Case appeared first on Reason.com.

[Irina Manta] "Why Jack Daniel's Can't Stop #WestElmCaleb and What Now?" Published

[How Changes in SCOTUS Trademark Doctrine Affect Viral Hashtag Campaigns (or Not)]

Together with my coauthor and former student Kavita Balchand, I recently published a law review article entitled "Why Jack Daniel's Can't Stop #WestElmCaleb and What Now?" in the William & Mary Bill of Rights Journal. It is available for download here, and this is the abstract:

The Supreme Court's recent decision in Jack Daniel's Properties v. VIP Products was hailed as a victory by trademark owners worried about infringement and dilution. Its holding weakened the potential protection that trademark parodies would receive via the fair use defense. That said, it remains difficult to use trademark law to stop many uses of marks that harm a brand, in an era in which a single negative viral hashtag campaign could spell disaster. Notably, hashtags including trademarks such as "#WestElmCaleb" and "#TinderSwindler" have spread in recent years and arguably brought disrepute to the named companies by connecting them to alleged predators of various stripes. Even with the Jack Daniel's holding going their way, trademark owners are unlikely to be able to act against most third parties who use their marks on social media in this manner, mainly because the use is descriptive and not for financial gain. Things are murkier when commercial entities make use of a hashtagged or previously-hashtagged term, as happened with "West Elm Caleb" when other companies began making references to the term in their messaging. West Elm would be going down an uncertain legal road by pursuing those claims, however, and meanwhile any claims against individual social media users would likely not only lose but also hurt the company with consumers. The solution for optimal brand management may largely lie in self-help: companies such as West Elm should prevent harassing and other unsavory behavior on the part of their employees on social media and in other communications in the first place, and companies such as Tinder must overhaul their safety practices to rein in predatory users. This Article proposes advances in employee policies and training to prevent trademark harms arising from employees' online behavior, and also gives guidance on dating apps' user problem. While Jack Daniel's might not be able to stop West Elm Caleb or the Tinder Swindler, the companies involved can take a real "shot" at it.

The post "Why Jack Daniel's Can't Stop #WestElmCaleb and What Now?" Published appeared first on Reason.com.

[Eugene Volokh] Douglass Mackey's Vote-by-Text Meme Conviction Reversed, Citing Insufficient Evidence of Conspiracy

A short excerpt from today's long decision in U.S. v. Mackey by Second Circuit Judge Debra Ann Livingston, joined by Judges Reena Raggi and Beth Robinson:

On November 1 and 2, 2016, Defendant-Appellant Douglass Mackey … posted or reposted three "memes" on Twitter falsely suggesting that supporters of then-candidate Hillary Clinton could vote in the 2016 presidential election by text message. Based on these posts, a jury … convicted him of conspiring to injure citizens in the exercise of their right to vote in violation of 18 U.S.C. § 241.Mackey argues on appeal that the evidence was insufficient to prove that he knowingly agreed to join the charged conspiracy. We agree….

The parties do not dispute either (1) that Mackey posted the memes or (2) that his doing so independently would not be a crime under Section 241. Section 241 criminalizes only conspiracies between "two or more persons." As a result, the mere fact that Mackey posted the memes, even assuming that he did so with the intent to injure other citizens in the exercise of their right to vote, is not enough, standing alone, to prove a violation of Section 241. The government was obligated to show that Mackey knowingly entered into an agreement with other people to pursue that objective.

This the government failed to do. Its primary evidence of agreement, apart from the memes themselves, consisted of exchanges among the participants in several private Twitter message groups—exchanges the government argued showed the intent of the participants to interfere with others' exercise of their right to vote. Yet the government failed to offer sufficient evidence that Mackey even viewed—let alone participated in—any of these exchanges. And in the absence of such evidence, the government's remaining circumstantial evidence cannot alone establish Mackey's knowing agreement. Accordingly, the jury's verdict and the resulting judgment of conviction must be set aside….

To begin, the government presented no evidence that Mackey participated in the conspiracy's formation. The government put forth extensive evidence that other members of the War Room, as well as members of Micro Chat and Madman #2, distributed and discussed memes suggesting citizens could vote by tweet or text in the lead-up to the election. But notably absent from this evidence was a single message from Mackey in any of these direct message groups related to the scheme. Indeed, Mackey was not even a member of Madman #2 or Micro Chat from approximately October 5, 2016 through the election. And the record contains no evidence that Mackey posted any messages in the War Room in the two weeks before he tweeted the text-to-vote memes….

The government argues that even if there is no evidence Mackey participated in the planning of the conspiracy, if he viewed the messages related to the conspiracy, he had express knowledge that an agreement had been formed. And by posting the text-to-vote memes with knowledge of this existing agreement, Mackey "knowingly joined and participated" in the conspiracy. We conclude, however, that the evidence is insufficient to establish either of these points as well.

To be sure, nothing is amiss in the government's theory as to how it proved its case. For many conspiracies—whether formed in person or online—the defendant's conduct itself, considered in light of the surrounding circumstances, is highly probative of his knowing participation in the unlawful enterprise. For example, if members of an online message group discussed the details of a plan to commit a terrorist attack, and then another member of that group who did not post any messages went on to participate in that specific attack, the defendant's actions in carrying out the attack might well be enough to support the reasonable inference that he was aware of the group's plotting and knowingly joined the conspiracy….

But the reasonableness of the inference of knowing agreement from the government's circumstantial proof depends on the nature of that proof. Consider United States v. Bufalino (2d Cir. 1960). We famously concluded there that the government had offered insufficient evidence that suspected Mafia members—who gathered in Apalachin, New York, for a prearranged meeting—agreed among themselves, in the meeting's aftermath, that they would conceal that it had been planned in advance. We emphasized the plausibility of the alternative explanation that the participants, who explained variously to law enforcement or to grand juries that they were in the area, inter alia, to visit a sick friend, attend to business, or accompany another, might well have independently decided to lie out of self-interest. We reasoned that although it was possible, as the government argued, that the "lies were told pursuant to an agreement," "[t]here [was] nothing in the record or in common experience to suggest that it [was] not just as likely that each [participant in the meeting] decided for himself that it would be wiser not to discuss all that he knew." …

Here, the conduct at issue—posting text-to-vote memes similar to others circulating publicly online— does not in isolation show awareness of, much less knowing participation in, a conspiracy. The government does not contest that Mackey downloaded the memes from 4chan but argues that the inspiration to do so came from discussion in the War Room. This is possibly true. But the inference is speculative and the government relies largely on conjecture to rule out the alternative scenario: that Mackey's conduct was independent of any knowledge of the War Room discussions. Mackey did not send any messages in the War Room in the two weeks before his text-to-vote tweets, despite having actively participated in the group in the past. Moreover, there were "over 600 messages coming in per day in the War Room" and only 12 posts related to the alleged conspiracy, two of which were sent within one minute of each other and the other 10 within a 20-minute period….

Congress expressly limited Section 241's reach to conspiracies. There are several reasons why Congress may have done so—for example, that "[c]oncerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality," or that "[g]roup association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish." But the critical point is that Congress made this choice—one it has declined to deviate from in the more than 150 years since Section 241's enactment.

Here, the government conceded that Mackey downloaded his text-to-vote tweets from 4chan. It failed to establish, in accordance with its theory of the case, that Mackey became aware of the text-to-vote memes in the War Room and tweeted them pursuant to a conspiracy launched there. That theory was possible, but so was an alternative one: that Mackey became aware of the memes independently and decided on his own to post them. There was no evidence from which a juror could "choose among [the] competing inferences" as to these two scenarios and resolve those inferences in the government's favor. Nor was there any basis in "common sense and experience" to do so. And without establishing that Mackey was at least aware of the War Room posts, the additional evidence (or lack thereof) was inadequate to show his knowing participation in a conspiracy.

The court therefore had no need to discuss the broader statutory or First Amendment issues discussed in my amicus brief.

Yaakov M. Roth (with Eric S. Dreiband, Joseph P. Falvey, Caleb P. Redmond, Harry S. Graver on the brief) of Jones Day represents Mackey. Thanks again to Russell B. Balikian & Cody M. Poplin (Gibson, Dunn & Crutcher LLP) for drafting my amicus brief (based generally on some thoughts that I'd expressed in this 2021 Tablet article).

 

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[Mark Movsesian] More on Coercion in Mahmoud

[Implications for the Ten Commandments cases]

Some quick thoughts occasioned by Josh Blackman's post on coercion in Mahmoud v. Taylor, last Term's parental rights case.

As readers will recall, Mahmoud held that a Maryland school district violated the Free Exercise Clause when it rescinded an opt-out policy that had allowed parents to have their children excused from elementary school lessons featuring LGBTQ+-inclusive storybooks. The Court reasoned that the storybooks, along with classroom discussions that encouraged teachers to reinforce their messages, imposed psychological pressure on students to accept a normative view of sexuality—one that directly conflicted with the religious teachings the parents sought to instill. That pressure, the majority concluded, amounted to a substantial burden on the parents' religious exercise.

In a post yesterday, I noted what seemed like an ideological reversal in the case. In the school prayer context—for example, Kennedy v. Bremerton School District—it's typically progressives who emphasize the dangers of subtle coercion and impressionable students, while conservatives downplay those concerns. In Mahmoud, the roles flipped. The conservative majority focused on the psychological pressure placed on young children by state-endorsed messaging, while the progressive justices appeared less troubled by that dynamic.

So which side is being inconsistent? Perhaps both are simply responding to context. Or perhaps the concept of "coercion" is more manipulable than either side tends to admit.

Josh offers one way to reconcile Mahmoud and Kennedy: by distinguishing between pressure on students' religious beliefs versus their non-religious beliefs. Under this reading, Mahmoud bars the state from pressuring students to abandon religious teachings, but Kennedy permits exposure to religious ideas, even if the state implicitly favors them, so long as there's no coercion into belief.

I wonder if another, simpler distinction might do more work: the age of the students involved. Mahmoud concerned very young children—kindergarten through fifth grade—who are especially vulnerable to subtle cues from teachers. Kennedy, by contrast, involved high school students, who, in theory at least, are better equipped to resist classroom pressure—or have already learned to tune out much of what their teachers say. In other words, the Court might be drawing an implicit line based not just on the nature of the message but on the susceptibility of the audience.

Josh also rightly highlights a doctrinal frontier: the Ten Commandments display cases currently working their way through the lower courts. These raise hard questions for conservatives post-Mahmoud. In Stone v. Graham (1980), the Court struck down a classroom display of the Ten Commandments under the Lemon test. But since Kennedy, Lemon is out, and the Court has instructed lower courts to apply a "history and tradition" framework to Establishment Clause claims.

Even under that revised test, though, the state may not coerce religious belief. And if Mahmoud teaches that distributing LGBTQ+-affirming storybooks to elementary schoolers is too coercive, might a Ten Commandments display in the same setting pose a similar problem?

Courts may try to draw a line between passive and active messaging. One possible distinction appears in the European Court of Human Rights' decision in Lautsi v. Italy (2011), which upheld the display of crucifixes in public school classrooms. The Court reasoned that crucifixes were "passive symbols" and unlikely to indoctrinate students, unlike formal instruction. U.S. courts might adopt a similar distinction here. In Mahmoud, teachers were not just presenting material; they were encouraged to affirm the books' messages and correct students who disagreed. A silent wall display may strike courts as less coercive.

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[Eugene Volokh] Words "So Indefinite, Ambiguous and Incertain" That They Aren't Treated as Slanderous

This is a familiar principle in modern defamation law: Some words, however pejorative, are treated as too general to be the sorts of factual allegations that can count as defamation. I just came across the same principle in Marshall v. Addison (Md. Provincial Ct. 1773), and thought it formed a good illustration of how long Anglo-American law has been dealing with these questions:

THIS was an action of Slander. The declaration contained three counts. The first and second counts, for saying the plaintiff was "a rogue and villain, and that he had ruined many families, and the curses of the widows and children were on him," &c. "that he had wronged the defendant's father's estate, and cheated the defendant's brother Thomas." …

There are three heads under which the law may be divided with respect to actions of this nature.

1st. Words are actionable which charge a person with any offence which would subject him to corporal punishment.

2d. Words are actionable spoken of a person in his trade or profession, which would not be so if spoken of other persons, from a jealousy the law entertains, founded on public utility, in their favour.

3d. Words are actionable, which otherwise would not be so, if they have occasioned any special or particular damage to the party.

Rogue or villain are so indefinite, ambiguous and incertain, that they are always deemed words of heat, and not subjecting the person to any particular penalty; no action will lie. Cheat is equally so; for like rogue, a man may cheat in a thousand different ways without being subject to any action—as by charging goods at a greater price than agreed on—turning tobacco into money, and so again in tobacco—not allowing one man the general current prices for his tobacco, which are allowed to others. All these are cheats, and yet not punishable by corporal penalty….

Note that it's not clear that, at the time, the same rule would apply to libel (i.e., written rather than oral defamation): It may be that such pejoratives would have been actionable if written. Today, generally speaking, statements that are viewed as general expressions of condemnation, without a relatively concrete factual allegation behind them, wouldn't be actionable regardless of whether they were written or oral. (Of course, much depends on whether, in context, those words are seen as alluding to some specific misconduct.)

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