Eugene Volokh's Blog, page 61

[Eugene Volokh] TRO Against Alleged Defamation, and Also Banning "Harassing Conduct"

[Plaintiff alleges Defendant engaged in "a coordinated online campaign making false statements," such as "accusing Plaintiff of design/invention theft, racism, ... and encouraging the public to report Plaintiff's online shopping platforms on sites like Etsy, Shopify, and TikTok as fraudulent and/or ... [as] selling counterfeit goods.'"]

From Owen v. Askew, decided July 24 by Judge Ann Aiken (D. Ore.); I'm skeptical about this, because the relief is before any trial on the merits (and thus isn't based on any final determination on the merits that certain allegations are false), because it's an ex parte TRO entered just six days after the suit was filed and before defendant was even served, and because it extends beyond even alleged defamation to "harassing conduct." (For more, see my Anti-Libel Injunctions and Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases.) But whatever I think, the judge thought different, and the decision struck me as worth noting. Here's the judge's summary of plaintiff's allegations:

Plaintiff in this case is the owner of a business, Elegance & Geekery LLC, which sells hair accessories. Defendant Breana Askew is a resident of Florida who does business as Breromi. Defendant Kiandra Demone Boyce is a resident of Georgia.

Beginning on July 14, 2025, Askew "began a coordinated online campaign making false statements," including "publicly accusing Plaintiff of design/invention theft, racism, selling counterfeit versions of goods Defendant Askew claimed she owned patents and trademarks covering, and encouraging the public to report Plaintiff's online shopping platforms on sites like Etsy, Shopify, and TikTok as fraudulent and/or engaged in illegal activity including selling counterfeit goods."

Askew's campaign is based on her claim that Plaintiff is selling a hair accessory which Askew claims infringes on her patent.  Plaintiff alleges that "Askew's only claim to any intellectual property is her filing of an application (not yet reviewed) for a trademark over the phrase 'Magnetic Hair Clip' and a filed patent application (not yet published)" and that the "content of that application has never been provided, so no one knows what she is even claiming she has rights to."

Plaintiff alleges that between July 14 and July 17, 2025, Defendants "engaged in an online smear campaign, attempting to leverage public hate and harassment as a means of forcing Plaintiff to flee the market." This campaign is "ongoing" and "will likely continue without court interference." Among other things, Defendants have accused Plaintiff of racism, theft of intellectual property relating to the hair clip, and the sale of counterfeit goods. Boyce has attempted to coordinate a large number of third-party complaints to Plaintiff's vendors in an effort to have Plaintiff's store removed from online platforms.

Defendants' campaign against Plaintiff has resulted in public confusion, as well as threats and abuse directed at Plaintiff by third parties who read Defendants' statements concerning Plaintiff.

This campaign has damaged Plaintiff's business reputation and her personal reputation. Plaintiff alleges that she had suffered lost profits, lost sales, and lost customer goodwill.

And here's the legal analysis:

Plaintiff bring claims for defamation (Claim 1); trade defamation (Claim 2); tortious interference with business relations and prospective economic advantage (Claim 3); civil conspiracy to defame and interfere with business (Claim 4); intentional infliction of emotional distress (Claim 5); false advertising and unfair competition pursuant to the Lanham Act, 15 U.S.C. § 1125(a) (Claim 6); unfair and deceptive trade practices under Oregon law as to Askew (Claim 7); and negligence (Claim 8). Plaintiff seeks injunctive and declaratory relief.

With respect to the TRO motion, Plaintiff focuses on her claims for defamation and seeks an injunction restraining Askew and Boyce from making further defamatory statements concerning Plaintiff or her business; engaging in harassing or misleading conduct or encouraging others to do so; and directing Askew and Boyce to remove the defamatory posts they have already made concerning Plaintiff or her business….

As noted, Plaintiff's TRO motion is focused on her claims for defamation…. Here, Plaintiff has alleged that Defendants have publicly and falsely accused her of theft and the sale of counterfeit goods and that they have incited third parties to make false reports against her business. Plaintiff has supported these allegations with exhibits which appear to show Defendants making public statements accusing Plaintiff, among other things, of stealing intellectual property. The Court concludes that Plaintiff has demonstrated a likelihood of success on the merits and that this factor weighs in favor of injunctive relief…. Although the issuance of an injunction against speech based on falsity implicates serious First Amendment concerns, "courts routinely grant TROs restricting speech that is not merely false, but defamatory." …

Defendant Breana Askew, individually and doing business as Breromi, and Defendant Kiandria Demone Boyce are ENJOINED from:

(1) Publicly accusing Plaintiff Kursten Owen, individually and doing business as Elegance & Geekery LLC, of theft, counterfeiting, or other unlawful business practices;

(2) Engaging in harassing conduct directed at Plaintiff, such as filing complaints with Plaintiff's business partners, or the encouraging of third parties to do so;

This injunction is effective from the date and time of this Order and shall continue in effect for fourteen (14) days….

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[Luke Goodrich] Religious Hiring Beyond the Ministerial Exception

[An important church–state question likely headed to the Supreme Court.]

When can a religious group, like a church or school, lawfully fire an employee for violating its religious teachings? Under a constitutional rule called the "ministerial exception," religious groups have broad leeway to hire and fire "ministers"—broadly defined to include employees who perform important religious functions. But what about any employee like a secretary or janitor, who may not perform important religious functions? What legal protections do religious groups have when they hire and fire non-ministers?

This is the question presented in a spate of new cases now hitting appellate courts nationwide and likely, eventually, landing in the Supreme Court. It is also the question addressed in my forthcoming article in the Notre Dame Law Review, Religious Hiring Beyond the Ministerial Exception.

The article provides a comprehensive analysis of six potential legal protections for the religious hiring of non-ministers. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exemption; and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the article examines the key caselaw, breaks down the arguments for and against applying the protection, and identifies key pressure points and unanswered questions. The result is, I hope, a much-needed roadmap of an important issue of pressing interest to scholars, jurists, and practitioners alike.

Thanks to Eugene for inviting me to guest-blog about this issue. This first post will define the problem I'm addressing and explain why it has become such a pressing issue in federal court. Future posts will unpack the potential legal solutions and explain what courts are getting right and what they're getting wrong.

The ministerial exception

To understand religious hiring for non-ministers, it's important first to understand the key legal doctrine governing the hiring of ministers: the ministerial exception.

The ministerial exception is a First Amendment doctrine that protects religious groups from government interference in the selection of their "ministers"—broadly defined as employees who perform "vital religious duties." In Our Lady of Guadalupe School v. Morrissey-Berru, for example, a Catholic school dismissed a sixth-grade teacher for poor performance, and the teacher sued, alleging the real reason for her dismissal was age discrimination. The Supreme Court held that her lawsuit was barred by the ministerial exception, because she performed the "vital religious duties" of teaching religion classes, praying with students, and guiding their growth in the Catholic faith.

When the ministerial exception applies, it acts as an affirmative defense that bars any claim challenging a religious organization's selection, supervision, or control of its ministers. This includes claims of employment discrimination based on race, sex, national origin, age, or disability. It also includes tort or contract claims that challenge ministerial selection or control. But it applies only to ministers—employees who carry out important religious duties.

What about non-ministers?

But what about employees, like many secretaries or janitors, who don't perform important religious duties? What protections do religious groups have for choosing those employees?

Few cases have addressed this question. That's because, in most non-minister cases, there is no significant conflict between employment laws and religious practices. In most cases, non-ministers are let go for non-religious reasons—such as poor performance, personality fit, or budgetary needs. Such cases can be handled like any other employment dispute without entangling courts in religious matters.

A few cases have involved non-ministers let go for religious reasons—such as engaging in sexual conduct outside marriage or getting divorced and remarried contrary to church teaching. In those cases, the question becomes whether the religious reason is the real reason for the employment action or is instead a pretext for illegal discrimination (like age or sex discrimination). Some courts have allowed these pretext claims to go forward and treated them like any other employment dispute; others have held that these pretext claims impermissibly entangle courts in religious questions. But such cases have not been common.

Bostock changes the calculus

The Supreme Court's 2020 decision in Bostock v. Clayton County, however, has changed the calculus. Bostock held that the federal ban on employment discrimination based on "sex" also prohibits discrimination based on sexual orientation or transgender status. This creates a direct conflict between federal law and the religious hiring practices of thousands of religious organizations—many of which ask all their employees, including non-ministers, to abide by their traditional beliefs about sex and marriage.

For example, suppose a Catholic school dismisses a secretary because she entered a same-sex marriage in violation of Catholic teaching. Before Bostock, the secretary had no federal claim for employment discrimination. After Bostock, she does.

Note, too, how her new claim differs from a pretext case. In a pretext case, the secretary says, "You fired me because of my age (or other protected characteristic)," and the school denies it, saying, "No, we didn't. We fired you because you violated church teaching." The dispute is over the real reason for the firing.

In a Bostock case, by contrast, the secretary says, "You fired me because I entered a same-sex marriage," and the school says, "Yes, we did, because that violates church teaching." There is no dispute over the reason for the firing. The dispute is over whether the school can legally act on its religious beliefs.

This significantly raises the stakes of the church–state conflict. In a pretext case, the government effectively tells a religious group, "You're free to act on your religious beliefs if that is the real motivation for your action." In a Bostock case, the government tells a religious group, "We don't care if you're truly acting on your religious beliefs; acting on those beliefs is discriminatory and illegal."

Thus, absent a viable religious-freedom defense, Bostock makes it illegal for religious groups to make employment decisions based on certain core beliefs about sexuality and marriage. This, in turn, undermines the ability to form religious communities based on those shared religious beliefs. And this poses a serious challenge to religious freedom.

"Future cases"

Bostock itself acknowledged concerns that its holding "may require some employers to violate their religious convictions." But the Court said the relevant "doctrines protecting religious liberty" would have to be addressed in "future cases."

Those future cases have now arrived. In the last five years, there have been at least eighteen reported cases involving religious groups asking employees to adhere to their beliefs on sexual orientation or gender identity. At least thirteen of those cases have now hit appellate courts or will soon.

These include, for example, a high school that dismissed a substitute drama teacher who entered a same-sex marriage; a university that dismissed an IT apprentice who had a gender transition; a high school that dismissed a librarian who had a gender transition; and a homeless shelter that asks all its employees, from computer technicians to janitors, to agree with its religious views on marriage.

Lower courts have already resolved those cases inconsistently. (In fact, the four examples just listed were resolved in four different ways!) A circuit split seems inevitable.

Can religious groups require non-ministers to adhere to their beliefs about sexuality and marriage? Or will federal employment laws require religious groups to hire employees who reject their core beliefs?

My next few posts will preview the key statutory and constitutional defenses at issue in such cases—and likely to garner the Supreme Court's attention soon. Stay tuned.

The post Religious Hiring Beyond the Ministerial Exception appeared first on Reason.com.

[Eugene Volokh] Luke Goodrich (Becket Fund) Guest-Blogging This Week About "Religious Hiring Beyond the Ministerial Exception"

I'm delighted to report that Luke Goodrich of the Becket Fund—one of the most prominent, successful, and ecumenical religious liberty litigation groups in the country—will be guest-blogging this week about his forthcoming Notre Dame Law Review article, Religious Hiring Beyond the Ministerial Exception:

Can a religious school fire its secretary for entering a same-sex marriage? Under the First Amendment's "ministerial exception," religious employers have a constitutional right to select their "ministers"—broadly defined to include individuals who perform important religious functions. But what about an employee, like a secretary, who is not a minister? Do religious groups have any legal protections for hiring non-ministers?

This Article provides a comprehensive taxonomy of legal protections for the religious hiring of non-ministers. It analyzes six protections. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exception; and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the Article examines the leading caselaw (where it exists), analyzes the arguments for and against the protection, and identifies key unanswered questions. The result is a much-needed roadmap of an emerging legal issue of great importance to scholars, jurists, and practitioners alike.

After providing this roadmap, the Article addresses the deeper problem of determining which legal doctrines offer the best "fit" for protecting the religious hiring of non-ministers. As the Article explains, Title VII's religious exemption offers strong statutory protection for the religious hiring of non-ministers. But recent developments in state law are taking that statutory protection off the table in some cases, forcing courts to grapple with thorny constitutional questions that neither courts nor commentators have yet explored.

I'm much looking forward to his posts.

The post Luke Goodrich (Becket Fund) Guest-Blogging This Week About "Religious Hiring Beyond the Ministerial Exception" appeared first on Reason.com.

[Paul Cassell] The Justice Department's Dubious Attempt to Erase a Police Officer's Federal Excessive Force Conviction

[I've teamed up with well-regarded civil rights lawyer, Caree Harper, to fight the Department's effort to vacate L.A. Sheriff's Department Officer Trevor Kirk's conviction.]

Over the last several days, the Justice Department has attempted to vacate the conviction of a police officer the Department's career prosecutors had convicted of using excessive force. Because I believe it is important to hold police officers accountable when they violate the law and harm victims, I've teamed up with well-known civil rights lawyer, Caree Harper, to fight the Department's dismissal effort. As Ms. Harper and I explain in our brief filed late last night, the Department has made no real showing of any reason why that properly obtained conviction should now be erased.

The case involves L.A. County Sheriff's Department deputy Trevor Kirk, whom a jury convicted in February of a felony civil rights violation for assaulting and pepper spraying an elderly woman. The relevant events were captured on video.

On June 24, 2023, while responding to a call for service at a grocery store in Lancaster and handcuffing another individual, Kirk encountered J.H. She was seated in her car, and then left her car to film Kirk with her phone. Then, Kirk approached Victim J.H. Without giving her any commands, Kirk attempted to grab her phone. J.H. turned away from Kirk, meaning Kirk was unable to seize the phone. So Kirk grabbed J.H. by her arm, hooked his left hand behind her neck, and violently threw her to the ground. J.H. told Kirk, "It's already on YouTube Live," implying that her video had already been made public. Kirk responded, "Stop, I don't give a sh** . . . ." Kirk then stuck his knee on J.H.'s shoulder. When J.H. yelled at Kirk to "stop," Kirk cocked his right arm back with a clenched fist and said, "Stop or you're gonna get punched in the face."

J.H. told Kirk  that she would sue him if he punched her. Kirk then pressed his knee into J.H.'s neck. J.H. said, "Get your neck off my . . . off my . . . I can't breathe." While on top of Victim J.H., Kirk used his LASD radio to misleadingly report that he was "in a fight." Shortly thereafter, without giving any additional commands to J.H., Kirk sprayed J.H. twice in the face with "pepper spray." As a result, J.H. received medical treatment at a hospital approximately 40 minutes after the assault. In addition to physical pain, J.H. suffered various physical injuries.

The indictment recounted the foregoing facts and charged Kirk with the felony of depriving Victim J.H. of her rights under color of law, in violation of 18 U.S.C. § 242.

In May, the Justice Department convinced the judge handling the matter (Judge Stephen Wilson, a Reagan appointee) to reduce the conviction from a felony to a misdemeanor, through the maneuver of moving to dismiss the part of the indictment alleging serious bodily injury—leaving only a misdemeanor excessive force conviction in place. The Department also proposed a binding plea agreement with a straight probationary sentence. Judge Wilson rejected the proposed plea deal as too lenient, in light of the officer's clear betrayal of the public trust. In early June, Judge Wilson sentenced the officer to four months in federal prison.

The latest developments arose late last week, when the Justice Department abruptly moved to dismiss the criminal indictment against the officer. The Department gave as its only reason the fact that it had decided not to defend the conviction of the officer on appeal.

Late yesterday, Ms. Harper and I filed our response to the Department's motion to dismiss. Here's our introduction, touching on federal jurisdictional issues and other reasons the Court should deny the motion:

This [District] Court must deny the Government's motion to dismiss, because it no longer possesses jurisdiction. More than eight weeks ago, the Defendant filed a notice of appeal and took his efforts to overturn his conviction to the Ninth Circuit. Whether the Government can now dismiss this case must be addressed by the Ninth Circuit.

Perhaps recognizing (but not admitting) the lack of jurisdiction, the Government also asks this Court for an advisory opinion—specifically, an "indicative" ruling that it would grant a motion to dismiss if the Ninth Circuit were to later remand this case. The Court should deny the request for an indicative ruling, because the Government has failed to make a "timely motion" for relief, as required by Fed. R. Crim. P. 37(a).

In any event, the Court lacks jurisdiction to rely on Rule 37(a), not only because of the Defendant's pending appeal but also because the Government is asking for an advisory opinion of how the Court might proceed if certain events were to occur in the future. The Court is not permitted to give speculative advice on how things might unfold.

Finally, if the Court is inclined to indicate how it would rule on a motion to dismiss in the future, on this exceptional record, the Court should indicate that it would deny the motion. The Government's purported reasons for the dismissal are after-the-fact, pretextual, and unpersuasive. At bottom, the Government relies only on the fact that it is not inclined to defend the conviction on appeal. But it would be clearly contrary to the manifest public interest for the Court to dismiss this case on such flimsy grounds. Indeed, it appears that the Government's true basis for the dismissal motion is that it objects to the Court's prison sentence. The Court should not allow the Government to subvert a duly imposed sentence for a serious crime.

This case echoes my current litigation attempting to block a similar abrupt effort by the Department to dismiss a pending criminal charge against Boeing. Ms. Harper and I explain the parallels in our brief:

[I]n this case, the Government appears to be pursuing a strategy it has recently pursued elsewhere—specifically, a strategy of not allowing district courts to make a reasoned evaluation of the underlying reasons for a motion to dismiss. See, e.g., Victims' Consolidated Sur-Reply, ECF No. 340 at 2-9, United States v. Boeing, No. 4:21-cr-0005 (N.D. Tex. July 18, 2025) (explaining how the Government entered into a binding non-prosecution agreement even before the district court had ruled on a dismissal motion). Here, by presenting an undeveloped record, the Government is staking out new ground—e.g., that it can simply inform a trial court of its decision to dismiss, and that decision standing alone is enough to justify dismissal. In light of this ploy, the Government's (unelaborated) reasons for abruptly dismissing this case are "clearly contrary to the manifest public interest." ECF No. 103 at 5 (quoting United States v. Weber, 721 F.2d 266, 268 (9th Cir. 1983)). Specifically, the Government's reasons are contrary to Rule 48(a), which adopted a judicial review requirement for motions to dismiss to prevent dismissals "savor[ing] altogether too much of some variety of prestige and influence (family, friends, or money) that too often enables their possessors to violate the laws with impunity." United States v. Woody, 2 F.2d 262, 262 (D. Mont. 1924), overturned in Rule 48(a), as recognized in Adv. Comm. Note (1944 Adoption). By blocking meaningful judicial review, the Government is acting contrary to the Rule 48(a) judicial review provision—and thus acting contrary to the public interest.

Ms. Harper will be in court this morning, arguing for the victim that the court should not vacate Kirk's conviction. To maintain public trust in law enforcement, it is is important to hold officers fully accountable when they violate the law. Officer Kirk is obviously entitled to appeal his conviction. But at this point, no reason exists to doubt the validity of the jury's conviction that he used excessive force—and thus no good reason to set his conviction aside.

I'll try to pass along further developments.

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[Eugene Volokh] Anti-Doxing Injunction (as to Address and Phone Number) in N.Y. Trial Court

From the July 25 decision in Fuhr v. Smith by N.Y. trial court judge Gerald Lebovits:

This action arises from a dispute about who should house a dog and her litter of puppies. Plaintiffs, Kristopher Fuhr and Sara Obstarczyk, are foster parents for rescue pets in New York State. A Good Dog Rescue, a pet-adoption organization, and Lisa Smith, the president of A Good Dog Rescue, are the defendants….

On January 10, 2025, plaintiffs signed a foster agreement with defendants temporarily to foster Lily, an adult dog, and Lily's litter of eight puppies.  Plaintiffs allege that Smith was unable to foster Lily and the litter, because Smith's home had recently been contaminated with Parvovirus, a highly contagious canine virus that can be deadly to puppies/unvaccinated dogs.  Plaintiffs began fostering Lily and her puppies in their home on January 11, 2025.

On March 8, 2025, Smith texted plaintiffs that she would retrieve Lily and her puppies from plaintiffs' home on March 14, 2025. On March 13, 2025, plaintiffs responded that they would continue to foster Lily and her litter because they believe that Smith's home is still contaminated.

According to plaintiffs, over the next several weeks defendants posted on social media (mainly Facebook) that plaintiffs were housing Lily and Lily's puppies in breach of the foster contract. Defendants' posts contained personal information, including plaintiffs' address and phone numbers. Plaintiffs allege that defendants' social-media posts prompted third parties to send plaintiffs threatening voicemails and emails, which forced plaintiffs to flee their home. Plaintiffs are currently keeping Lily and her puppies at an undisclosed location.

Plaintiffs bring claims against defendants for defamation per se, intentional infliction of emotional distress, recission of the foster contract between defendants and plaintiffs, and declaratory judgment. Defendants counterclaim for replevin of Lily and her puppies….

Plaintiffs move for a preliminary injunction to (1) enjoin defendants from posting personal details about plaintiffs on defendants' social media accounts; (2) enjoin defendants from creating posts advocating harassment and violence against plaintiffs; and (3) require defendants permanently to remove all social-media posts containing personal details (e.g., plaintiffs' home address) about plaintiffs and permanently to remove social-media posts that advocate harassing and violence against plaintiffs….

The court concludes that plaintiffs are unlikely to succeed on their defamation per se claim. Defendants' social-media posts, which consist of defendants' asking their followers for help finding the dogs, are neither false nor harmful to plaintiffs and therefore not defamatory. Defendants' posts also state that plaintiffs breached their foster agreement—an assertion supported by the agreement itself, which provides that "Lily and her babies" belong to A Good Dog Rescue and that plaintiffs "agree to give Lily and her babies back anytime it is requested by A Good Dog Rescue."  Defendants made a truthful statement that does not support a defamation per se claim….

The branch of the plaintiffs' motion to enjoin the defendants from making social-media posts about plaintiffs is denied. The branch of the motion to require defendants to remove all social-media posts containing plaintiffs' home address(es) and telephone number(s) is granted, however, for the reasons the court stated on the TRO.

The TRO (entered April 28) "required defendants to remove posts from their social-media accounts (whether made by defendants or third parties) that include residential addresses at which plaintiffs are living or currently staying and plaintiffs' work or personal telephone numbers"; here is the rationale from that order:

Posting this information serves only to harass movants (and encourage their harassment). The Appellate Division has made clear that narrow, focused restraints on a defendant, aimed toward preventing harassment of plaintiff carried out through speech directed to third parties, are constitutionally permissible. (See Dennis v Napoli, 148 AD3d 446, 447 [1st Dept 2017].)

The court also ordered that the dogs be turned over to the defendant.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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

[Ilya Somin] Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation

[Victims of uncompensated takings can sue directly under the Constitution. The case involved uncompensated seizure of horses.]

Tkgraphicdesign | Dreamstime.com

A horse is a horse, of course, of course…. unless the horse is the focus of a major takings case, in which a federal court will generate over 100 pages of opinions regarding whether the owner can sue under the Takings Clause to be compensated for its seizure.

The case of Fulton v. Fulton County, recently decided by the US Court of Appeals for the 11th Circuit, arose because Fulton County, Georgia authorities sought to charge Brandon Fulton (no relation to the person the county is named after) with animal cruelty. In the process, they seized his horses. Ultimately, the charges were dropped, but county authorities refused to return Fulton's horses, or compensate him for them.

For various procedural reasons, he could not sue for compensation under either state law or federal statutes. Therefore, he sought to sue directly under the Takings Clause of the Fifth Amendment, which requires "just compensation" whenever the government takes "private property." The issue of whether the Takings Clause is "self-executing" - whether people can sue under it in the absence of legislation authorizing a remedy - is one the Supreme Court avoided addressing last year in DeVillier v. Texas (where they held they did not have to reach it because the plaintiff had a remedy under Texas state law, which cold be pursued even in federal court).

The Eleventh Circuit has now addressed the issue in this case, in a divided 2-1 decision, which generated over 100 pages of opinions. To my mind, however, the issue is readily resolved by clear and simple points made early in Judge Robin Rosenbaum's compelling majority opinion:

In Greek mythology, the Greek gods condemned Tantalus to eternal hunger and thirst, all while forcing him to forever stand in a shallow pool of water under a tree with low hanging fruit. Though the remedy for Tantalus's hunger and thirst was right at
hand, he could not take advantage of it. The water receded when Tantalus bent down to drink, and the fruit rose to just above his grasp when Tantalus tried to reach it.

Our Founders did not do to us what the Greek gods did to Tantalus. Our Constitution explicitly promises exactly two remedies: "just compensation" if the government takes our property, and the writ of habeas corpus if it tries to take our lives or liberty. And the Constitution delivers directly on each. It doesn't taunt us by naming these remedies but then holding them out of reach, depending on the whims of the legislature.

So even if Congress doesn't legislate a procedure by which a person can obtain one of these remedies, the Constitution's promise is not illusory. A person can bring a case directly invoking either constitutional remedy….

The Dissent responds by saying we are "creat[ing] a new right of action" and leaving "constitutional wreckage in the wake…." But its answer that the Takings Clause includes no direct cause of action ignores the original public meaning of the Clause and transforms the Constitution's promise of "just compensation" into nothing more than a Tantalus-type taunt. Most respectfully, we don't think that's "judicial humility…"; we think it's judicial abdication. We have a duty to apply the Constitution as written. So we respectfully decline to read out of the Constitution the relief it expressly promises for taken property.

The Framers of the Fifth and Fourteenth Amendments provided a real remedy in "just compensation" for government takings. They guaranteed the ability to recover "just compensation" directly under the Constitution.

I completely agree!  The Takings Clause says the government must pay just compensation whenever it takes private property. No ifs, ands, or buts. And no exception for cases where Congress and state governments don't legislate a remedy. The whole point of a constitutional right is to constrain the powers of government. Thus, it makes no sense to give that very same government the power to nullify the right in question by failing to provide a legislative remedy.

Moreover, as detailed in the amicus brief I filed in DeVillier (along with the Cato Institute), in Knick v. Township of Scott (2019), the Supreme Court made clear that victims of takings have a right to bring Takings Clause cases directly in federal court, and cannot be relegated to state court (see also my article about Knick and its significance). Still less can they be kept out of court entirely, as would have happened to Mr. Fulton if the Takings Clause were not self-executing.

In dissent, Judge William Pryor argues that Fulton failed to take advantage of various alternative ways to bring a claim. To the extent these alternative paths were in state court, they cannot vitiate his right to bring a claim in federal court. Knick rightly held that federal constitutional takings plaintiffs have a right to go to federal court, as is also true of victims of other constitutional rights violations (see my article on Knick for additional reasons why this is a vital principle). As Judge Rosenbaum notes, "the Takings Clause promises a federal remedy independent of the whims of states."

As Judge Pryor recognizes, Fulton tried to sue under Section 1983 of the federal Civil Rights Act of 1871, but the suit was dismissed for procedural reasons. Thus, he had no available federal remedy, other than one directly under the Constitution. Even if a statutory path was also available, that should not preclude the constitutional path.

I am also not much impressed by Judge Pryor's argument that there is a paucity of cases where takings cases were brought directly under the Constitution in the early republic. At that time, the Bill of Rights only applied against the federal government, and that government was not generally understood to have the power of eminent domain. Almost all takings were conducted by state and local governments. Even after the enactment of the Fourteenth Amendment made the Bill of Rights applicable to state governments in 1868, it took courts many decades to recognize that the Takings Clause applies to states and localities. This history is discussed in much greater detail in Chapter 2 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. 

Judge Pryor relies extensively on the amicus brief filed by legal scholars James Ely and Julia Mahoney, and Prof. Mahoney's other writings. He rightly calls them "renowned legal scholars." But the Ely-Mahoney brief actually cuts against his position. It argues that a direct constitutional remedy is required by the Fifth and Fourteenth Amendments whenever "there are no existing procedures to provide just compensation or the existing procedures are inadequate." This is just such a case.

In most controversial takings cases, conservative judges tend to side with the pro-property rights side, while more liberal ones tend to support the government. Here, the usual alignments are flipped. Judge Rosenbaum is a liberal Obama appointee, and Judge Nancy Abudu (the other judge in the majority) is a liberal appointed by Biden. Judge Pryor is a prominent conservative judge appointed by George W. Bush. Perhaps differences on property rights are outweighed here by differences over the scope of permissible remedies (conservative judges tend to be more wary of broad remedies for rights claimants than liberal ones).

Regardless, the liberal judges are right here, and Judge Pryor - whose work I otherwise greatly respect - is badly wrong. The Takings Clause means what it says, and neither Congress nor a state government can nullify it by failing to legislate a remedy.

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[Ilya Somin] Update on Potential Condemnation of New Jersey Church to Build a Park and Pickleball Courts

[After a public outcry, the scheduled vote on the plan to use eminent domain has been postponed indefinitely. If the Town of Toms River does try to condemn the church, there is likely to be a major legal battle.]

Christ Episcopal Church, Toms River, NJ.

 

In May, I wrote about how the town of Toms River, New Jersey, planned to use eminent domain to condemn the Christ Episcopal Church and build and park and pickleball courts on the spot. The plan may have been motivated by a desire to prevent the church from building a homeless shelter on part of its property. In my earlier post, I outlined multiple potential objections to the planned condemnation under the state and federal constitutions, including 1) if the condemned property is transferred to a private party, that may mean it is not being devoted to a "public use," as the Fifth Amendment and the New Jersey Constitution both require (NJ state courts applying their state constitution enforce this requirement far more rigorously than federal courts do under the Fifth Amendment Takings Clause),  and 2) there is likely to be a strong argument that this is a "pretextual taking," where the official rationale is just a pretext for a scheme to benefit a private party (here, local NIMBYs who want to block the homeless shelter).

After an initial outcry, the vote on the plan was postponed until July 30. More recently, Mayor Dan Rodrick postponed the vote indefinitely, likely because of growing public opposition. He now says the town will go through with the vote only if a poll of town residents he plans to conduct on the subject reveals majority support for it. At this time, I do not know when the poll will occur or what the wording will be.  The wording of survey questions on land-use policy often has a big effect on results.

Dan Paulsen of the Episcopal News Service has a helpful article summarizing the situation and the potential legal issues involved (he quotes a number of takings and land-use experts, including myself):

A New Jersey church was thrust into the national spotlight in recent months when town officials targeted the property for seizure, by eminent domain if necessary, to create new public parkland. Episcopal leaders insisted Christ Episcopal Church in the town of Toms River was not for sale.

Legal experts and property rights lawyers interviewed for this story told Episcopal News Service that Christ Church likely would be on solid ground in fighting to maintain ownership of its 11-acre property, though existing case law leaves unanswered how courts might rule if the church asserts its rights both as a property owner and as a house of worship….

Rodrick first proposed voluntarily buying or forcibly seizing Christ Church's property in April, and the Toms River council voted later that month to move forward initially with his plan. Rodrick said he envisioned creating a multiuse park on the church's property because that part of town lacks recreational facilities….

The mayor's proposed eminent domain ordinance requires a second approval to take effect. A final vote had been scheduled for July 30, but Rodrick postponed it indefinitely after facing a vocal outcry from church leaders and the church's supporters, as well as a petition drive seeking to block the pending ordinance. The mayor's opponents launched a separate campaign attempting to recall him.

"The church and the diocese are prepared for a long court fight to protect our congregation and property from this egregious land grab," the Rev. Lisa Hoffman, Christ Church's rector, wrote in a May message to her congregation. New Jersey Bishop Sally French has said the diocese will do "all that we can" to help defend the church in any property dispute…

Legal experts say an eminent domain proceeding involving a church would not be unprecedented – houses of worship are not immune from governments legally taking some or all of their property, with fair compensation and for public use – though those experts also say they are following the Toms River dispute with keen interest, given the questions it may raise about the proper application of state and federal laws.

"I think what's interesting about it is it kind of stands at the confluences of two different kinds of religious land disputes," Eric Rassbach, vice president and senior counsel at the public interest nonprofit Becket Fund for Religious Liberty, said in an ENS interview.

The first is the general threat of eminent domain, a legal process by which a government can take privately owned property even if the property owner doesn't want to give it up. The U.S. Constitution's Fifth Amendment limits the use of eminent domain by requiring that governments provide "just compensation" when taking property for "public use." Congress and some states have passed laws giving property owners additional protections.

Secondly, Rassbach said, the timing of Toms River's eminent domain threat raises additional red flags, given that the mayor has opposed broader efforts to assist people experiencing homelessness and that some of his constituents had complained specifically about Christ Church's homeless shelter proposal.

The congregation, which has said its outreach ministries are rooted in the Christian call to help those in need, could argue that the town's actions are unfairly limiting how it lives out that call, Rassbach said. Unlike other property owners, houses of worship benefit from additional protections under the First Amendment and a federal law known as the Religious Land Use and Institutionalized Persons Act [RLUIPA]. In Toms River, the town would have the burden of proving it is using eminent domain consistently, fairly and in a way that doesn't place undue burden on the church's exercise of its faith.

As Eric Rassbach of the Becket Fund for Religious Liberty notes in the passage above, if the condemnation goes forward, the church may have a strong religious liberty claim under RLUIPA, in addition to takings claims.

Since I wrote my earlier post on this issue, I have been in contact with representatives of the Episcopal Church, offering them my assistance with this issue. The Institute for Justice and the Pacific Legal Foundation* - two of the nation's leading public interest law firms specializing in property rights issues - have also reached out, and the same is true of the Becket Fund (which is well-known for its work on religious liberties).  Should the town go through with this abusive condemnation, it will likely face a lengthy and difficult legal battle - one that it might well lose. If you are a local government trying to carry out a dubious condemnation, IJ and PLF are probably the people you least want to see arrayed against you in court!

Hopefully, the local government will back off. Even aside from legal considerations, it is deeply unjust to use the power of the state to seize a church merely because it seeks to build a shelter to help the homeless. I don't think you have be an expert on property rights or religious liberties to see that.

But if the town does decide to go through with this travesty, property rights and religious liberty advocates will not stand idly by. Many of us will act to help the church resist in both courts of law, and the court of public opinion.

I will post additional updates on this issue when and if I have anything to report.

*NOTE: The Pacific Legal Foundation is also my wife's employer. But she does not work on property rights issues.

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[Josh Blackman] Today in Supreme Court History: August 2, 1923

8/2/1923: President Calvin Coolidge's Inauguration. He would appoint Justice Harlan Fiske Stone to the Supreme Court.

President Calvin Coolidge

 

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[Jonathan H. Adler] Will the Sixth Circuit Get a Summary Reversal in Another Habeas Case?

[In Chandler v. Brown, the Sixth Circuit may have been too quick (again) to grant a habeas petition. ]

There was a time when the Supreme Court would reverse decisions of the U.S. Court of Appeals for the Sixth Circuit in habeas cases quite regularly, often summarily. This does not happen as much as it used to, but some justices remain concerned that some of the Sixth Circuit's judges are too quick to grant habeas relief.

Chandler v. Brown looks like a potential candidate for summary reversal at One First Street. The original Sixth Circuit panel, consisting of Judges White, Stranch, and Davis, reversed the district court's denial of Louis Chandler's habeas petition. The full court granted en banc review, but only to have the panel amend its initial opinion. Now, the court has denied a subsequent petition for rehearing en banc, over the dissent of four judges.

On Thursday, Judges Thapar and Murphy authored a dissent from the denial of rehearing en banc in Chandler v. Brown, joined by Judges Griffin and Readler. Here is how Thapar and Murphy summarize the case and their objections.

Louis Chandler sexually abused his eight-year-old foster daughter. At trial, she told the jury in graphic detail about how Chandler molested her. She wasn't the first one Chandler had sexually abused. Three other victims testified about the abuse they suffered at his hands. Even Chandler's wife corroborated his foster daughter's claims of sexual abuse by Chandler.

So how did Chandler convince a panel of this court to grant him habeas relief? He tells us that the state trial court wrongly prohibited a different foster couple from testifying that the victim had previously made false allegations against them soon after they proposed to adopt her. According to Chandler, their testimony could have shown that the victim had a motive to falsely accuse Chandler too, so that she could return to her birth parents. Never mind that, by the time of the victim's testimony at trial, she had been adopted by another family and living with them for almost five years without accusing them of misconduct. Never mind that the victim did not make allegations of sexual abuse against the prior foster parents; she alleged that they did things like hit her with a wooden spoon, pull her by the ponytail, and give her ill-fitting clothes. And never mind that at least one of the victim's accusations against the prior foster parents (that they put soap in her mouth) turned out to be true. (The parents are now on a child abuse registry.) Chandler still claims that his foster daughter's alleged prior accusations against this other couple about these other events were central to his defense to the charged sexual abuse.

A Michigan appellate court held that the trial court committed various state-law errors in the process of excluding this evidence. Ultimately, though, that court held that these state-law errors did not rise to a federal constitutional violation. And it found the errors harmless after assuming (without deciding) that some of Chandler's key evidence might have been admissible.

This federal habeas case thus asks: If a state appellate court concludes that a trial court's exclusion of evidence misapplied an otherwise valid rule of evidence or procedure, when does that state-law violation infringe the federal Constitution? Always? Never? Sometimes? If so, when? The Supreme Court has yet to confront this question, let alone clearly establish the ground rules that should govern it. Cf. Nevada v. Jackson, 569 U.S. 505, 510 (2013) (per curiam). And even if the Court eventually extends its "balancing of interests" approach to this new context, the Michigan appellate court did not unreasonably apply that approach. Id. Indeed, it's doubtful that the other foster couple's testimony would have been admissible even under a proper interpretation of Michigan law. And the state court could reasonably find that Chandler did not have a "significant interest" in presenting this evidence anyway. United States v. Scheffer, 523 U.S. 303, 316–17 (1998). Unlike the excluded evidence in the Supreme Court cases that found a constitutional violation, the excluded evidence here did not concern "'facts' about the alleged crime at hand." Id. at 317 & n.13. So we are hard-pressed to see how the rejection of Chandler's claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). This should foreclose Chandler's claim under the Antiterrorism and Effective Death Penalty Act (AEDPA).

The panel's contrary reasoning violates AEDPA in several ways. It improperly invokes evidence that the state court found forfeited or that was not in the state court record. And it fails to provide the great deference owed to state courts when a petitioner relies on general constitutional principles. The panel's decision also undercuts AEDPA's federalism and comity goals. For example, Chandler's trial required four victims to testify about his abuse. Now these victims must relive their trauma by testifying again. Our full court should have prevented this result because the panel committed the types of errors that the Supreme Court has seen fit to summarily reverse. See Cassano v. Shoop, 10 F.4th 695, 696–97 (6th Cir. 2021) (Griffin, J., dissenting from denial of rehearing en banc) (collecting 22 cases, including 12 summary reversals, in which the Court reversed the Sixth Circuit "for not applying the deference to state court decisions mandated by AEDPA").

The substance of the decision, and the objecting judges, would seem to make Chandler a strong candidate for Supreme Court review, and perhaps even a summary reversal. The question will be whether Michigan files a petition for certiorari.

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