Eugene Volokh's Blog, page 60

[Josh Blackman] What Is "Speed Dial"?

[Justice Sotomayor used a catchy line in her dissent that most law students today will not understand. ]

On July 3, the Supreme Court granted the government's "motion for clarification" in Department of Homeland Security v. D. V. D. I did a quick search, and I can't seem to find any other instance where the Court granted a similar "motion for clarification." Then again, I highly doubt any district court attempted to play fast and loose with a Supreme Court order. Kudos to Justice Kagan for calling out such inferior court resistance.

I did want to point out one aspect of Justice Sotomayor's dissent. She wrote:

Today's order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.

I thought that was an effective line. But do law students today even know what "speed dial" is? Most youths have never actually dialed a phone number on a touch tone phone, let alone a rotary phone. They all grew up with address books on their smartphones, assuming they even make phone calls. Students today have no idea why you would need a button to dial a particular phone number quickly. There is a risk to using references to technology, as those references pass. Indeed, I think the reference is speed dial is at least a decade past due.

Relatedly, I used the phrase "Rolodex" with students. I got blank stares. I was recently at a hotel with my young kids, who were playing with the phone in the room. I told them to "hang up" the phone. They had no idea what I was asking them to do. Like a clothes hanger? It has been a long time since a phone was hanging on a receiver.

Popular references seldom age well.

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

[Federal enclaves, false alarms, and pseudonymous lawsuits.]

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

At The Unpopulist, IJ's Anthony Sanders digs into the Supreme Court's inequitable evisceration of universal injunctions.

This week on the Short Circuit podcast: Is yoga speech? And what's a scrivener's error?

On the latest episode of Unpublished Opinions, IJ's roundtable podcast: Things get heated when opening the Bluebook, secrets are dished about dictionaries, and the team ponder what it's all about when it comes to public interest law.

Man with two Ohio felony convictions from the early 1990s turns his life around, gets a Ph.D., obtains a security clearance, and eventually receives a pardon from the Ohio governor, which allows his conviction to be sealed. He applies for a job with the FDIC, which rejects him when he informs them about his sealed conviction. Dr. John Doe then files a pseudonymous lawsuit against the FDIC, challenging its blanket ban on hiring felons. D.C. Circuit: But he cannot do so anonymously.Proxy advisory firms give recommendations to institutional investors on how they should vote on shareholder governance proposals. In 2019, the SEC starts treating these recommendations as "solicitations," subjecting advisory firms to a slew of additional regulations. D.C. Circuit: Which is wrong. If anyone is soliciting here, it's the investors soliciting opinions from the firms, not the firms soliciting votes from the investors.Man arrested for robbery and destruction of property is released on his own recognizance. But before he can leave the courthouse, U.S. Marshals detain him on an "ICE hold." Man files a class action, arguing that the marshals acted outside their authority. D.C. Circuit: Just so. Only people who have undergone certain training are allowed to make civil immigration arrests, and the marshals haven't done that. But class-wide relief was inappropriate.The FAA categorically bans pilots who are taking the antidepressant mirtazapine from flying, whereas pilots taking other medications get evaluated on a case-by-case basis. D.C. Circuit: We're not inclined to second-guess why the FAA does that, but it does have to have reasons and, y'know, tell us what they are.Documentary filmmaking associations: The State Department is requiring visa applicants to disclose their social media accounts. This harms us because it makes people less likely to share information on social media that we rely on. D.C. Circuit: But even if we enjoined the policy, consular officials could still review visa applicants' social media profiles on a case-by-case basis, which for all we know would have the same chilling effect. So no redressability, no standing.Puerto Rican man serving life sentence (for, among other things, murdering his DEA informant girlfriend) needs a CPAP machine to treat his sleep apnea and severe hypertension, and the feds show no inclination to give him one. Compassionate release? First Circuit: Possibly. The district court needs to take another look.Two execs accused of participating in bribery schemes at prominent soccer association, the Fédération Internationale de Football Association, lose pretrial motions to dismiss the charges against them. They're convicted after a seven-week trial and face years in prison and millions of dollars in penalties. But then! Their posttrial motions for acquittal (arguing honest services fraud didn't encompass the conduct) are granted. Second Circuit: Convictions reinstated. Foreign commercial bribery where the relevant conduct occurred in the U.S. = super illegal.Erratic driver flees police stop, and, during the ensuing high-speed chase, passengers toss crowbars, screwdrivers, two-way radios, and a handgun. (They crash and run into a frozen swamp, from which they have to be rescued by helicopters.) Turns out the gun was used to shoot a Willingboro, N.J. officer months earlier in a burglary attempt. One of the passengers is convicted of the shooting in 2012. He gets 30 years. Third Circuit (over a dissent): And his pro se habeas petition was rightfully granted (an outcome some describe as sort of a unicorn).In the rare case with court-appointed counsel on both sides of the v.—and even rarer, one oral advocate still in law school—the Fourth Circuit holds that a dismissal on Younger-abstention grounds does not count as a "strike" under the Prison Litigation Reform Act. And in what seems to your untutored correspondent like two layers of dicta, the court also holds that a second dismissal would have been a strike (though not a third one), except that it wasn't entered until after the current case was already on file.Allegation: In early COVID, an inmate at Virginia's Red Onion State Prison goes to the prison barber for a trim and a shave; the barber tells him to remove his mask for shave-related reasons; he does; and nearby guards later bring a disciplinary charge against him for removing his mask in violation of the prison's COVID policies. Following a shambolic set of disciplinary proceedings, the inmate is fined $15, deducted from his prison-trust account. Fourth Circuit: And contrary to the district court's view, that $15 is indeed the inmate's "property" within the meaning of the Due Process Clause. Case undismissed.The power to control entry and removal of immigrants is vested solely with the federal gov't, so Texas has no business declaring that it's under "invasion" and doing its own immigration enforcement. So says two-thirds of this Fifth Circuit panel, upholding a preliminary injunction on the merits.Family moves into military housing at Air Force base in Texas. They complain about a musty smell, but the housing rep waves away any worries claiming, "this is what grandma's house smells like." Further problems ensue: insects, asbestos, health issues, and contamination of their personal property. The family (and others similarly situated) sue. The trial court throws out most claims and denies any attorneys' fees, but does allow a jury to award them some money for breach of contract. Fifth Circuit (unpublished): The base is a federal enclave, and federal law ain't great for renters like you. Affirmed.Texas mom heads to Kuwait for a few days to explore teaching job opportunity that will allow the family to move closer to dad, who's deployed to the Middle East. She leaves her 12- and 14-year-olds at home, notifies the 12-year-old's school (where she is a teacher), and arranges for neighbors and coworkers to check in on them. Yikes! School cops go to the home, search it without a warrant, find that nothing is wrong, and, without a court order, remove the 14-year-old (who is home-schooled) anyway. (Mom is charged with child endangerment, spends 19 hours in jail, and, over a year later, is acquitted on all counts.) Fifth Circuit: No qualified immunity. J. Ho, concurring: It all worked out here, but the Fifth Circuit is uniquely bad about granting QI even when the constitutional violation is obvious.If you want to rev your understanding of automatic transmissions and standing in class actions into high gear then take a few laps through this Grand Prix set of opinions from the en banc Sixth Circuit about GM cars and Federal Rule of Civil Procedure 23.Milwaukee public school counselor goes to a rally at the state capitol to oppose the transgender-rights movement. She gives an impromptu speech where, among other things, she proffers that "[n]ot a single one of my students under my f***ing watch will ever, ever, transition socially and sure as hell not medically." Video of the speech goes viral. She's fired. Seventh Circuit: And that didn't violate the First Amendment.Abu Zubaydah, a once-alleged high-ranking Al-Qaeda leader, was captured in Pakistan in 2002 and has been in U.S. custody ever since—without trial. He's been on an international tour of black sites, was the first suspect subjected to "enhanced interrogation," and lost an eye at some point in CIA custody. He's also been on an expedition of the American court system, from the Supremes to a languishing habeas petition (filed in 2008 and still pending today), and now a trip to the Ninth Circuit asking whether he can sue under the Alien Tort Statute for damages from injuries during his detention. Answer: No. The Military Commissions Act inverts respondeat superior, leaving gov't agents unaccountable in court for their acts done on behalf of the United States by stripping federal courts of jurisdiction over such claims.Florida law prohibits male-at-birth public high school teacher from using the honorific "Ms." and identifying as "she/her" to students. Using those very pronouns, the Eleventh Circuit (over a dissent) says there is no First Amendment problem with the law, as it merely targets her speech as a gov't employee rather than as a private citizen.Wakulla County, Fla. officers respond to multiple-shooter situation at store—a false alarm, it turns out. They misidentify man in parking lot as a suspect and take him roughly to the ground. Officer: Thanks to prior cases, I knew that I couldn't hit or kick him once he was cuffed. But how was I to know I couldn't kneel on his neck for several minutes? There could have been other suspects on the loose. Eleventh Circuit (unpublished): No qualified immunity.Alabama litigant (under seal): I should be allowed to proceed under a pseudonym, because private stuff is going to come out in this lawsuit like X, Y, and Z. District court (not under seal): There's no reason to believe that X, Y, and Z will come out about you, so refile under your own name. Litigant: But now you've put that stuff out there in a public filing, so I should definitely be allowed to proceed under a pseudonym. District court: Nah, but I'll seal my order. Eleventh Circuit (unpublished): Take another look at this one.Miami-Dade County, Fla. employee pens an opinion piece warning that federal legislation (that ultimately did not pass) would, among other things, require small-business owners to submit to "the new 'tranny tyranny'" and choose between "baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business." He's required to go to anti-discrimination training and fired when he declines. Eleventh Circuit: And that didn't violate the First Amendment.And in en banc news, the Eighth Circuit will not reconsider its opinion that private parties can't use Section 1983 to bring claims under Section 2 of the Voting Rights Act. (Nor, per an earlier ruling, can such claims be brought directly.)

Friends, the Supreme Court often declines to strike down laws because it would be "undemocratic" to second-guess the legislative branch and, by extension, the will of the people. But the sovereign legislature is a British idea, and one that the Founders forcefully rejected. So on this, our nation's birthday, IJ's Anthony Sanders reminds the Court—and, by extension, the people—to quit being so British and stick up for baseball, apple pie, and robust judicial review. Click here for those ruminations (from 2024).

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Ilya Somin] Writings on the Declaration of Independence and the American Revolution

[Links to some of my previous writings on these topics, which remain relevant today.]

The Declaration of Independence. (National Archives.)

 

Over the years, I have written various posts and articles on the American Revolution and the ideals of the Declaration of Independence. Some have obvious continuing relevance to such issues as identity politics, nationalism, immigration, the role of slavery in American history, and more.

This post is an expansion of last year's similar compendium.

I hope the links are useful, and stir reflection on the principles of the Declaration. Unless otherwise noted, all of these pieces were published as posts on the Volokh Conspiracy blog. I put them in chronological order:

"The Declaration of Independence and the Case for Non-Ethnic Secession," July 4, 2009.

"The Declaration of Independence and the Case for a Polity Based on Universal Principles," July 4, 2017.

"The Universalist Principles of the Declaration of Independence," July 4, 2019. Why it matters that the Declaration elevates universal liberal principles over racial, ethnic, and cultural particularism.

"The Case Against the Case Against the American Revolution," July 4, 2019. A rebuttal to longstanding claims - advanced by critics on both right and left - that the Revolution did more harm than good.

"Slavery, the Declaration of Independence and Frederick Douglass' 'What to the Slave is the Fourth of July?'", July 4, 2020. Douglass's famous speech sheds light on some of America's greatest evils - but also on the great good done by the Revolution and Founding. I think Douglass's speech may be the greatest-ever Fourth of July oration.

"Juneteenth and the Universalist Principles of the American Revolution," June 19, 2021. Why there is no inconsistency in celebrating both July 4 and the abolition of slavery. Indeed, the two are mutually reinforcing.

"Immigration and the Principles of the Declaration of Independence," July 4, 2021. This piece explains why the ideals of the Declaration and the Founding require free migration rights.

"Juneteenth Celebrates a Great American Achievement," June 19, 2023. An extension of some of the key points made in my 2021 Juneteenth post, linked above.

"The Declaration of Independence Promotes Individual Liberty More than Collective Self-Determination," July 4, 2023. The "liberty" the Declaration advocates is more about individual freedom than the power of majorities to rule over the rest of society, or the power of ethnic groups to rule "their" territory.

"The Case Against Nationalism," National Affairs, Winter 2024 (with Alex Nowrasteh). This article is a more general critique of nationalism. But it includes a section explaining why nationalism is inimical to the ideals of the Declaration and the Founding.

"Trump vs. the Declaration of Independence," July 4, 2025. Several items on Declaration of Independence list of grievances against George III also apply to Trump today, most notably on immigration, trade, and deportation without due process. Like King George, he is "unfit to be the ruler of a free people":

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[Ilya Somin] Trump vs. the Declaration of Independence

[Several of the items on the Declaration's list of grievances against King George III also apply to Donald Trump today.]

The Declaration of Independence. (National Archives.)

 

Today is July 4, and we appropriately celebrate the Declaration of Independence. The Declaration is best known for its ringing affirmation of the rights to  "Life, Liberty and the pursuit of Happiness." But it also contains a long list of grievances against King George III, by which the signers justified their decision to break from Britain. Sadly, many of these are relevant to Donald Trump's abuses of power today:

"He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands."

As I describe here, this wasn't just a matter of protecting the American colonies' supposed right to control immigration policy themselves. It was also about the universal human rights of would-be migrants to choose where they want to live. Many of the leaders of the American Revolution saw the new nation as a refuge for the oppressed of the world. In his famous General Orders to the Continental Army, issued on the occasion of the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions."

Trump's policies are utterly at odds with these principles. He has launched a massive assault on nearly every type of legal migration, including trying to bar virtually all refugees (except white South African Afrikaners), closing the door to people fleeing communist oppression, deporting Iranian Christians fleeing radical Islamist persecution, stripping legal status from Afghans who fled the Taliban (including many who aided the US during the war), and more.

For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent

Tariffs are, obviously, a type of tax. Trump is using bogus invocations of emergency powers to impose massive tariffs that exceed anything seen since the Great Depression. And he is doing so without anything approaching proper congressional authorization. His abuses in this regard are reminiscent of the monarchical abuses of King Charles I, which helped lead to the English Civil War, and greatly influenced the Founding Fathers in their efforts to curb executive authority over taxation and trade.

"For transporting us beyond Seas to be tried for pretended offences"

Trump is using the Alien Enemies Act of 1798 to "transport" hundreds of immigrants to imprisonment in El Salvador, with no due process whatsoever. In addition to illegally invoking a wartime power at a time where there is no war or other similar conflict, this is a blatant violation of constitutional due process. Moreover, the vast majority of the men deported to imprisonment have no criminal record at all, and most entered the US legally.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

Modern Americans have largely lost Founding-era suspicion of standing armies, perhaps for good reason. We have had a large standing army in times of peace for many decades, and the legislature has supported it. But Trump has gone further than that, and illegally federalized the National Guard for domestic law enforcement. A trial court rightly struck it down. That decision was overruled by a misguided appellate decision, but only because of excessive deference to the executive's dubious and pretextual factual claims (the appellate court did still reject Trump's claims that he has unreviewable authority). Since then, Trump has gone a step further and illegally used the military for drug enforcement.

"He has excited domestic insurrections amongst us…"

Trump incited the January 6, 2021 attack on the Capitol, which was most definitely an "insurrection" (see also my more detailed discussion in this article). And, by the way, the Supreme Court's decision in Trump v. Anderson did not exonerate Trump on this point. The justices ruled (wrongly) that state governments cannot enforce Section 3 of the Fourteenth Amendment against would-be federal officeholders absent specific congressional legislation authorizing them to do so. They chose not to address the insurrection issue.

This part of the Declaration isn't one of my favorites. The "domestic insurrections" the Declaration complains about include British efforts to enlist black slaves against the American rebels (though it also probably was referring to recruitment of white Loyalists). It was hypocritical of the rebels to condemn the freeing of slaves to engage in "insurrection" against them even as they themselves rebelled against Britain due to lesser injustices than slavery.

That said, the insurrection Trump incited had no justification comparable  to the wrongs that precipitated slave revolts or the revolution against Britain. He was inciting violence for a blatantly unjust cause.

Trump hasn't - so far - replicated all the grievances listed in the Declaration of Independence. But he has imitated enough of them to be well worthy of condemnation. The Declaration states the list of grievance against George III proves he is "unfit to be the ruler of a free people." The same is true of Trump.

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[Eugene Volokh] Open Meeting Law Meets University Encampment Policies

From a June 27 Massachusetts AG opinion:

We find the facts as follows. Like many college campuses, UMass Amherst was the site of demonstrations during the 2023-2024 academic year, stemming from events in the Middle East. On April 29, demonstrators established an encampment, including tents, on campus property and made certain demands of the University. Construction of the encampment violated UMass Amherst Regulations for Use of Property, Trustee Doc. T90-079 (the "Land Use Policy"), which required pre-authorization of any structures.

Chancellor Reyes decided on April 29 that the encampment would not be allowed to remain on University property; protesters who refused to remove encampment structures after several explicit warnings would be subject to arrest for criminal trespass. Among the reasons for Chancellor Reyes's decision was his concern that tolerance of an encampment established in violation of the Land Use Policy would set an undesirable precedent in the event of future protests. Following discussions with University administration, demonstrators voluntarily removed the encampment on April 30.

At noon on May 7, demonstrators were observed unloading pallets onto the South Lawn of the UMass Amherst campus, again in violation of the University's Land Use Policy, to construct a second encampment. After the demonstrators ignored a notification that structures and tents were not allowed on the South Lawn, staff of the Demonstration Response and Safety Team ("DRST") entered the newly established encampment and asked them to disassemble a wooden barrier being constructed. DRST issued two additional warnings that day. As part of the third warning, demonstrators were advised of steps the University was taking in response to their demands and were further told that although they had the right to express their views, "you do not have a right to place structures outside the limits of the Land Use Policy. You can demonstrate in this space but you must dismantle and remove your tents and structures now."

The demonstrators, which included individuals who were not students or staff of UMass, did not remove the tents and structures following this third and final warning. That night, and into the early morning hours of May 8, the UMass Police Department, assisted by the Massachusetts State Police and other agencies, cleared the encampment and arrested 132 people, including 70 UMass Amherst students and six members of the UMass Amherst faculty.

In the weeks that followed, Chancellor Reyes met with representatives of the Student Government Association ("SGA"), the Graduate Student Senate ("GSS"), and the Faculty Senate Rules Committee ("FSRC"). According to Chancellor Reyes, the meetings "focused on the need for the university to review campus policies that intersect with student activism and make recommendations for potential improvements to those policies."

On June 17, Chancellor Reyes announced the establishment of the Task Force. It was his decision to create the group, which was formed to review UMass policies and procedures and to "make recommendations to the appropriate university governing bodies." The Task Force was composed of 17 members, six of whom were staff members appointed by the Chancellor. The remaining members were appointed by the SGA, GSS and FSRC. The Task Force was charged with, among other things:

reviewing demonstration-related policies and guidelines, including the Land Use Policy and making recommendations to the appropriate University governing bodies;making recommendations regarding methods of demonstration-related intervention, including the composition and deployment of the DRST; andmaking recommendations on how to increase awareness of University policies and First Amendment protections as they apply to on-campus demonstrations.

The Task Force met on six occasions. At its first meeting, it created two subcommittees, one focusing on policy review and the other focusing on the DRST. The subcommittees met ten times. Additionally, according to the Task Force, "[s]ignificant asynchronous discussion and document review was also completed via a shared Teams channel." On August 30, the Task Force issued a report to the Student Affairs and University Life Council ("SAUL"). The report made multiple recommendations, including but not limited to:

removing ambiguities in the Land Use Policy, by defining structures with reference to existing language from state law;creating an advisory council to strengthen the work of the DRST; andbuilding up a mediation infrastructure to aid in the de-escalation of potential conflict.

In his message to the UMass community announcing the release of the Task Force's report, Chancellor Reyes stated that "[o]ver the next several weeks, these recommendations, which I fully endorse, will move through the governing bodies of the university." [Details omitted. -EV] …. The Board of Trustees [eventually] approved the amendments to the Land Use Policy on December 18….

The AG concluded that the Open Meeting Law didn't apply to the Task Force, because it fit within "a judicially created exception" "established in Connelly v. School Committee of Hanover (Mass. 1991):

Under the Connelly exception, where an individual public official, who themself is not subject to the Open Meeting Law, creates a committee to advise them on a decision that they have the sole authority to make, that committee is not subject to the Open Meeting Law…. Chancellor Reyes created the Task Force to review, and recommend changes to, UMass policies and procedures. Although the Task Force submitted its report and recommended policy revisions to SAUL, a Faculty Senate council, SAUL then submitted them to the UMass Amherst administration. Upon receipt, Chancellor Reyes requested, through the Committee on Administration and Finance, that the Board of Trustees adopt the recommended amendments, which it did.

The University has explained in response to the complaint that the Land Use Policy is specific to the Amherst campus and that, as a result, it was the Chancellor who had the authority to recommend changes to that policy. Rules of University governance, as interpreted by the University, require that any campus request to amend policy necessarily flows through the Chancellor as the chief academic and executive officer of the campus. Chancellor Reyes recommended changes to the Land Use Policy, as he had the authority to do, based on the recommendations of the Task Force. Because the Task Force and its subcommittees fall within the Connelly exception, they were not public bodies.

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[Eugene Volokh] Judge Denies Pseudonymity, Because Plaintiff's Sensitive Personal Information Wouldn't Likely Emerge in the Case—But then Disclosed That Information In Its Order

["[T]he heart of the district court's analysis in denying Brooks's initial motion was its conclusion that the litigation would not require Brooks to disclose the information that he had filed under seal. But, in some respects, the district court's order did just that—it put the information that Brooks had filed under seal on the public docket."]

From Eleventh Circuit Judge Andrew Brasher, joined by Judges Kevin Newsom and Ed Carnes, in Wednesday's Brooks v. City of Southside:

Brooks [a pseudonym] alleged violations of the United States Constitution and Alabama state law related to his arrest and prosecution…. The district court allowed Brooks to file a motion under seal to explain why he should be allowed to proceed anonymously. Brooks did so, and he revealed sensitive, personal information that he thought would come up during the litigation.

The district court discussed the sensitive information in Brooks's filing in a public order and then gave him the choice of filing a non-anonymous complaint or dropping his suit. Brooks asked the district court to reconsider its order and to seal it, arguing that the district court's public order undermined its conclusion that the information he filed under seal would not be disclosed in the litigation. The district court declined to reconsider its order, but it granted Brooks's request to seal it.

The district court did not abuse its discretion in denying Brooks's initial request to proceed anonymously. The district court properly invoked our presumption against anonymous pleading, and it applied the right test from our precedents. The district court reasonably concluded that the litigation would not require Brooks to disclose information of the utmost intimacy or admit that he intended to engage in illegal conduct.

But we believe the district court abused its direction in denying Brooks's reconsideration motion without explaining how the disclosure of his allegedly sensitive information affected its analysis. The district court's ruling on Brooks's initial anonymity motion was based, in large part, on the premise that Brooks would not be compelled to disclose in the litigation the sensitive information that he had filed under seal. But, after inviting Brooks to file that same information under seal, the district court's public order did disclose that sensitive information on the public docket. The district court did not explain how that change in circumstances played into its decision, and we cannot conduct that analysis in the first instance. Accordingly, we vacate the district court's order and remand for further proceedings….

The district court reasonably concluded that Brooks's complaint—which, on its face, presents claims related to an alleged wrongful arrest and malicious prosecution—did not warrant anonymity. Nothing about Brooks's complaint and his legal claims would have required him "to disclose information of the utmost intimacy" or would have "compelled [him] to admit [his] intention to engage in illegal conduct." Brooks, in his sealed filing, provided additional, sensitive, information that he contended warranted anonymity. But the district court was within its discretion to conclude that (1) Brooks's additional information was not central to his claims and (2) Brooks's additional information was unlikely to emerge in the litigation.

Although the district court did not abuse its discretion by denying Brook's initial motion, we believe the district court erred when it denied Brooks's motion for reconsideration without explanation. The district court had directed Brooks, a pro se litigant, to file his motion to proceed anonymously under seal. In that motion, Brooks disclosed sensitive, personal information that, he believed, justified litigation under a pseudonym. Despite allowing Brooks to file his motion under seal, the district court disclosed Brooks's personal information in a public order such that, if Brooks later revealed his true identity under the same case number, his private information could be public.

Brooks argues that, by making his private information public in its order, the district court changed the facts about whether Brooks should be able to proceed anonymously. We agree. The district court made no finding in its initial order about whether the information in Brooks's sealed filing would have warranted anonymity if it had been central to his complaint or likely to have been divulged during the litigation. Instead, the heart of the district court's analysis in denying Brooks's initial motion was its conclusion that the litigation would not require Brooks to disclose the information that he had filed under seal. But, in some respects, the district court's order did just that—it put the information that Brooks had filed under seal on the public docket….

Because we are not sure why the district court denied the motion for reconsideration, we are not able to consider whether the district court abused its discretion. "A court must explain its decisions adequately enough to allow for meaningful appellate review." On remand, the district court should review Brooks's renewed request to remain anonymous in the light of the order's exposure of the information in Brooks's sealed filing. The district court may wish to make fact findings about whether its public order meaningfully affected Brooks's privacy. It may also wish to consider if any intermediate measures short of anonymity are appropriate to safeguard Brooks's under-seal information….

Justin Miller of Schaerr | Jaffe (with which I'm affiliated on a part-part-part-time basis) represented plaintiff pro bono, under appointment by the Eleventh Circuit.

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[Josh Blackman] Today in Supreme Court History: July 4, 1776

7/4/1776: Declaration of Independence is signed.

Stone Engraving of the Declaration of Independence

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[Randy E. Barnett] What the Declaration of Independence Said and Meant

[It officially adopted the American Theory of Government: First Come Rights; Then Comes Government to Secure These Rights.]

[This year, my annual post celebrating the Fourth of July is drawn from a chapter of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, and from a short essay on the same topic, The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government. It also draws upon Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation's Founding.]

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.

The adoption of the Declaration, and the public affirmation of its principles, led directly to the phased in abolition of slavery in half of the United States by the time the Constitution was drafted—as well as the abolition of slavery in the Northwest Territory. The Rhode Island gradual abolition law of 1784 read:

All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.

Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:

The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that "all men are endowed by their Creator with certain unalienable rights—and that among these are life, liberty, and the pursuit of happiness.

The Declaration was much relied upon by Abraham Lincoln and many others before him:

Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of "Liberty to all"—the principle that clears the path for all–gives hope to all–and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.

The assertion of that principle, at that time, was the word, "fitly spoken" which has proved an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.

The Declaration had to be explained away–quite unconvincingly–by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.

When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing "the People."

But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to "a long train of abuses and usurpations" and the list that follows the first two paragraphs. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.

In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims.

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

This first sentence is often forgotten. It asserts that Americans as a whole (and not as members of their respective colonies) are a distinct "people." To "dissolve the political bands" revokes the "social compact" that existed between the Americans and the rest of "the People" of the British commonwealth, reinstates the "state of nature" between Americans and the government of Great Britain, and makes "the Laws of Nature" the standard by which this dissolution and whatever government is to follow are judged. "Declare the causes" indicates they are publicly stating the reasons and justifying their actions rather than acting as thieves in the night.

The Declaration is like the indictment of a criminal that states the basis of his criminality. But the ultimate judge of the rightness of their cause will be God, which is why the revolutionaries spoke of an "appeal to heaven"—an expression commonly found on revolutionary banners and flags. As British political theorist John Locke wrote: "The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven." The reference to a "decent respect to the opinions of mankind" might be viewed as a kind of an international public opinion test. Or perhaps the emphasis is on the word "respect," recognizing the obligation to provide the rest of the world with an explanation they can evaluate for themselves.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The most famous line of the Declaration. On the one hand, this will become a great embarrassment to a people who permitted slavery. On the other hand, making public claims like this has consequences—that's why people make them publicly. To be held to account. This promise will provide the heart of the abolitionist case in the nineteenth century, which is why late defenders of slavery eventually came to reject the Declaration. And it forms the basis for Martin Luther King's metaphor of the civil rights movement as a promissory note that a later generation has come to collect.

Notice that the rights of "life," "liberty" and "the pursuit of happiness" are individual, not collective or group rights. They belong to "We the People"—each and every one. This is not to say that government may not create collective, positive rights; but only that the rights that the next sentence tells us are to be secured by government belong to us as individuals.

What are "unalienable," or more commonly, "inalienable rights"? Inalienable rights are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that they are inalienable rights? The Founders want to counter England's claim that, by accepting the colonial governance, the colonists had waived or alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.

A standard trilogy throughout this period was "life, liberty, and property." For example, the Declaration and Resolves of the First Continental Congress (1774) read: "That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS: Resolved, 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent." Or, as John Locke wrote, "no one ought to harm another in his life, health, liberty, or possessions."

When drafting the Declaration in June of 1776, Jefferson based his formulation on a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason at the end of May for Virginia's provincial convention. Here is how Mason's draft read:

THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Notice how George Mason's oft-repeated formulation combines the right of property with the pursuit of happiness. And, in his draft, not only do all persons have "certain . . . natural rights" of life, liberty, and property, but these rights cannot be taken away "by any compact." Again, these rights each belong to individuals. And these inherent individual natural rights, of which the people—whether acting collectively or as individuals—cannot divest their posterity, are therefore retained by them, which is helpful in understanding the Ninth Amendment's reference to the "rights…retained by the people."

Interestingly, Mason's draft was slightly altered by the Virginia Convention in Williamsburg on June 11, 1776. After an extensive debate, the officially adopted version read (with the modifications in italics):

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

This version is still in effect today.

According to historian Pauline Meier, by changing "are born equally free" to "are by nature equally free," and "inherent natural rights" to "inherent rights," and then by adding "when they enter into a state of society," defenders of slavery in the Virginia convention could contend that slaves were not covered because they "had never entered Virginia's society, which was confined to whites."

Yet it was the language of Mason's radical draft—rather than either Virginia's final wording or Jefferson's more succinct formulation—that became the canonical statement of first principles. Massachusetts, Pennsylvania, and Vermont adopted Mason's original references to "born equally free" and to "natural rights" into their declarations of rights while omitting the phrase "when they enter into a state of society." Indeed, it is remarkable that these states would have had Mason's draft language, rather than the version actually adopted by Virginia, from which to copy. Here is Massachusetts' version:

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

Virginia slaveholders' concerns about Mason's formulation proved to be warranted. In 1783, the Massachusetts Supreme Judicial Court relied upon this more radical language to invalidate slavery in that state. And its influence continued. In 1823, it was incorporated into an influential circuit court opinion by Justice Bushrod Washington defining the "privileges and immunities" of citizens in the several states as "protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety."

Justice Washington's opinion in Corfield (to which we will return), with Mason's language at its core, was then repeatedly quoted by Republicans in the Thirty-Ninth Congress when they explained the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It was this constitutional language that Republicans aimed at the discriminatory Black Codes by which Southerners were seeking to perpetuate the subordination of blacks, even after slavery had been abolished.

"That to secure these rights, Governments are instituted among Men.… "

Another overlooked line, which is of greatest relevance to our discussion of the first underlying assumption of the Constitution: the assumption of natural rights. Here, even more clearly than in Mason's draft, the Declaration stipulates that the ultimate end or purpose of republican governments is "to secure these" preexisting natural rights that the previous sentence affirmed were the measure against which all government—whether of Great Britain or the United States—will be judged. This language identifies what is perhaps the central underlying "republican" assumption of the Constitution: that governments are instituted to secure the preexisting natural rights that are retained by the people. In short, that first come rights and then comes government.

"…deriving their just powers from the consent of the governed."

Today, there is a tendency to focus entirely on the second half of this sentence, referencing "the consent of the governed," to the exclusion of the first part, which refers to securing our natural rights. Then, by reading "the consent of the governed" as equivalent to "the will of the people," the second part of the sentence seems to support majoritarian rule by the people's "representatives." In this way, "consent of the governed" is read to mean "consent to majoritarian rule." Put another way, the people can consent to anything, including rule by a majority in the legislature who will then decide the scope of their rights as individuals.

But read carefully, one sees that in this passage the Declaration speaks of "just powers," suggesting that only some powers are "justly" held by government, while others are beyond its proper authority. And notice also that "the consent of the governed" assumes that the people do not themselves rule or govern, but are "governed" by those individual persons who make up the "governments" that "are instituted among men."

The Declaration stipulates that those who govern the people are supposed "to secure" their preexisting rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered "by any compact." Therefore, the "consent of the governed," to which the second half of this sentence refers, cannot be used to override the inalienable rights of the sovereign people that are reaffirmed by the first half.

In modern political discourse, people tend to favor one of these concepts over the other—either preexistent natural rights or popular consent—which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the "fundamental" or "human" rights of individuals and minorities.

If we take both parts of this sentence seriously, however, this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed. In other words, the "consent of the governed" tells us which government gets to undertake the mission of "securing" the natural rights that are retained by the people. After all, justifying the independence of Americans from the British government was the whole purpose of the Declaration of Independence.

"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

People have the right to take back power from the government. Restates the end—human safety and happiness—and connects the principles and forms of government as means to this end.

"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

Affirms at least two propositions: On the one hand, long-established government should not be changed for just any reason. The mere fact that rights are violated is not enough to justify revolution. All governments on earth will sometimes violate rights. But things have to become very bad before anyone is going to organize a resistance. Therefore, the very existence of this Declaration is evidence that things are very bad indeed.

"But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Revolution is justified only if there "is a long train of abuses and usurpations, pursuing invariably the same Object"—evidence of what amounts to an actual criminal conspiracy by the government against the rights of the people. The opposite of "light and transient causes," that is, the more ordinary violations of rights by government.

"Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III—Eds.] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world."

What follows is a bill of indictment. Several of these items end up in the Bill of Rights. Others are addressed by the form of the government established—first by the Articles of Confederation, and ultimately by the Constitution.

The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: "First comes rights, then comes government." According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) the protection of these rights is the first duty of government; and (3) even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition; (4) at least some of these rights are so fundamental that they are "inalienable," meaning they are so intimately connected to one's nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.

At the Founding, these ideas were considered so true as to be self-evident. However, today the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the discussion by many of natural rights, as reflected in the Declaration's claim that such rights "are endowed by their Creator," leads many to characterize natural rights as religiously based rather than secular. As I explain in The Structure of Liberty: Justice and the Rule of Law, I believe this is a mistake.

The political theory announced in the Declaration of Independence can be summed up in a single sentence: First come rights, and then comes government. This proposition is not, as some would say, a libertarian theory of government. The Declaration of Independence shows it to be the officially adopted American Theory of Government.

According to the American Theory of Government, the rights of individuals do not originate with any government but pre-exist its formation;According to the American Theory of Government, the protection of these rights is both the purpose and first duty of government;According to the American Theory of Government, at least some of these rights are so fundamental that they are inalienable, meaning that they are so intimately connected to one's nature as a human being that they cannot be transferred to another even if one consents to do so;According to the American Theory of Government, because these rights are inalienable, even after a government is formed, they provide a standard by which its performance is measured; in extreme cases, a government's systemic violation of these rights or failure to protect them can justify its alteration and abolition. In the words of the Declaration, "whenever any Form of Government becomes destructive of these ends," that is the securing of these rights, "it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

The original public meaning of the text of the Declaration of Independence is distinct from the original public meaning of the U.S. Constitution. The Constitution, however it is properly interpreted, does not justify itself. To be legitimate, it must be consistent with political principles that are capable of justifying it. Moreover, these same publicly identified original principles are needed inform how the original public meaning of the Constitution is to be faithfully to be applied when the text of
the Constitution is not alone specific enough to decide a case or controversy.

The original principles that the Founders thought underlie and justify the Constitution were neither shrouded in mystery nor to be found by parsing the writings of Locke, Montesquieu, or Machiavelli.

On July 2nd, 1776, the Congress of the United States voted for independence from Great Britain. On July 4th, 1776, it officially adopted the American Theory of Government, which was publicly articulated in the Declaration of Independence.

Happy Independence Day!

The post What the Declaration of Independence Said and Meant appeared first on Reason.com.

[Eugene Volokh] Government Employees May Generally Be Disciplined for Sufficiently Controversial Public Political Speech

[From the Eleventh Circuit, a reminder that First Amendment protections against government employer action are much weaker than the protections against the government as sovereign (especially, but not only, when the speech is also "disrespectful, demeaning, rude, and insulting").]

From Judge Kevin Newsom's opinion today in Labriola v. Miami-Dade County, joined by Judges Robin Rosenbaum and Stanley Marcus:

John Labriola was a media aide for the Miami-Dade Board of County Commissioners. In his own name and on his own time, Labriola wrote an opinion piece that criticized the Equality Act, an as-yet-unenacted bill that would prohibit discrimination based on sex, sexual orientation, and gender identity.

In his piece, Labriola used inflammatory language to describe the LGBT people whom the bill sought to protect. He warned small-business owners "who resist surrendering their consciences to the new 'tranny tyranny'" that, if the bill was passed, "[i]t's going to be a choice of either baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business." So too, Labriola warned local governments of what was to come: "No conservative small town in the South or Midwest will be safe from that weird study in perversity known as Drag Queen Story Hour, in which public libraries host a heavily made-up, flamboyant, homosexual pedophile in a dress who rolls around on the floor with little children as he reads them stories about gender fluidity and LGBT unicorns."

Soon after, in an email to staff members of the Board of County Commissioners, a County citizen took issue with the opinion piece and questioned whether Labriola's views represented the County's. A County employee forwarded that email to the Miami Herald, after which the paper published an article describing the opinion piece as a "slur-laden tirade against transgender people." At that point, the County received a barrage of phone calls from concerned residents.

Labriola's supervisor suspended him from work for three days without pay and ordered him to schedule "training regarding the County's anti-discrimination policies" within seven days and to complete that training within 30 days. According to the Disciplinary Action Report, Labriola's supervisor's employment decisions were partially grounded in Miami-Dade Implementing Order 7-45, an anti-discrimination policy that "prohibits all forms of discrimination and harassment." Thirty days came and went, and, despite three written reminders, Labriola never scheduled the training. For his failure to do so, he was terminated….

"[T]he law is well-established that the state may not demote or discharge a public employee in retaliation for" exercising his First Amendment rights. But a public employee's First Amendment rights are "not absolute." That's because "the State's interest as an employer in regulating the speech of its employees differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general." To accommodate the dueling interests of employee and employer, we use a four-factor test derived from Pickering v. Board of Education (1968), and Connick v. Myers (1983):

To prevail [on a First Amendment claim], an employee must show that: (1) the speech involved a matter of public concern; (2) the employee's free speech interests outweighed the employer's interest in effective and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse employment action. If an employee satisfies her burden on the first three steps, the burden then shifts to the employer [4] to show by a preponderance of the evidence that it would have made the same decision even in the absence of the protected speech….

[The parties agree that] Labriola's speech involved a matter of public concern…. So we begin at the second step: whether Labriola's free-speech interests outweighed the County's interest in effective and efficient fulfillment of its responsibilities. And because Labriola fails at this second step, it's also where our analysis will end.

{[Labriala] argues at length about why his free-speech claim survives Pickering-Connick, but he mentions his free-exercise claim only at the very end of his analysis, in a footnote, which asserts that his free-exercise claim succeeds because it, too, is "based on the Pickering-Connick Test." We'll follow suit and apply the Pickering-Connick test one time—in its free-speech iteration—to assess both claims.}

In order to balance Labriola's free-speech interests against the County's efficiency interests, we must consider several factors, including "(1) whether the speech at issue impedes the government's ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made." Taken together, these factors defeat Labriola's claim….

First, did Labriola's speech impede the government's ability to perform its duties efficiently? The Supreme Court has "recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise."

There is evidence that the opinion piece "impair[ed] … harmony among co-workers." After one staff member read the opinion piece, she told Labriola's supervisor that she found it "[v]ery upsetting" because "she was offended by the words he used." Other coworkers were apparently shocked. Labriola's supervisor stated, "I think people just couldn't believe it." Referring to one of Labriola's coworkers in particular, his supervisor recounted that "she knew John, and she said something like I can't believe he would use those offensive words."

The record also indicates that the opinion piece had "a detrimental impact on close working relationships for which personal loyalty and confidence are necessary." Labriola's supervisor testified that after she learned of the opinion piece, she "kind of lost confidence in him." She elaborated: "[A]s my number [two], I would sometimes talk to him about certain things that pertained to each office that, you know, [we] kept to ourselves"—i.e., confidential things—"so I just felt like I couldn't speak to him freely about those things anymore or get his opinion on certain things." Moreover, she specified that it was because "the words that he used in the article were offensive to [her]" that she "couldn't really speak to him freely about things anymore."

Finally, there is ample evidence that the opinion piece "interfere[d] with the regular operation of the enterprise." The piece "brought a lot more work" to the office, in part because, following its publication, the office received "a lot of phone calls." According to Labriola's supervisor, no other event had ever "caused such a large number of phone calls." Confirming this description, the Chairman's chief of staff testified that the calls "became such a problem that it really prevented us from doing our day-to-day operations during those days." He continued: "[W]e had to refocus a lot of our attention from some of the legislative strategies that we had to dealing with the damage control…. [W]e were put in a situation where we had to reprioritize this issue with Mr. Labriola and completely step off from other initiatives that we had …." …

Second, time, place, and manner. Labriola has time and place in his favor: He was off-duty and away from work when he wrote the opinion piece—a time and place at which his speech enjoys greater constitutional protection.

But manner weighs heavily against him…. To put it mildly, the opinion piece was "disrespectful, demeaning, rude, and insulting." And, based on the shock and appall of his coworkers, it was clearly perceived that way at the office….

Third, context. Precedent in both the Supreme Court and this Court has emphasized that the state possesses a greater interest in controlling employee speech when it occurs in public, rather than private. Labriola disseminated his views through an opinion piece in a public, online newsletter—as opposed to, say, a private conversation with a friend. So "context" indicates that Labriola's interest in his speech is limited….

The court rejected the district court's holding "that because [Labriola] 'is not a journalist,' he can't bring a free-press claim"; the court cited Branzburg v. Hayes (1972), which held that "[f]reedom of the press is a fundamental personal right which is not confined to newspapers and periodicals." But because Labriola didn't explain how the free press arguments offered more protection than the free speech arguments, "his free-press claim sinks along with [the free-speech claim]."

Finally, the court rejected Labriola's claim that the anti-discrimination training requirement violated Labriola's rights to be free of compelled speech:

Labriola asserts that "there is a good possibility that in th[e] [anti-discrimination] training session, the instructor would have pressured or forced [him] to recant his views and/or to say things that he disagrees with." In particular, Labriola suggests that the training would have compelled him to disavow his opposition to "transgenderism, homosexual marriage, and Drag Queen Story Hours."

But … Labriola was directed to attend a generic anti-discrimination training, whose accompanying presentation barely touched on LGBT-related topics. The presentation mentioned such issues only twice: (1) by listing "sexual orientation" and "gender identity or expression" as among twelve "[p]rotected [c]lasses," and (2) by including "LGBTQ Awareness" as one of seven training modules available to—but not required of—County employees. Labriola offers no evidence to the contrary—he relies solely on his conjecture that there was a "good possibility" that he would have been made to say something with which he disagreed. Even construed in the light most favorable to him, see Fed. R. Civ. P. 56, his allegation is rank speculation.

William X. Candela and Andrea Sofia De Ona (Miami-Dade County Attorney's Office) represent the county.

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