Eugene Volokh's Blog, page 65

[David Bernstein] Supporting Free Speech and Countering Antisemitism on American College Campuses

The final version of this article is available for download here.

Coauthor David L. Bernstein and I spend a fair amount of space recounting examples of antisemitic campus activity that did not involve protected speech, such as vandalism, classroom and library disruptions, threats, one-on-one verbal harassment, assault, and more. Some readers of the draft paper questioned why a paper on free speech and antisemitism talking about things that don't constitute free speech.

A major reason for doing so is that David L. and I saw that many commentators were portraying the complaints about antisemitism on campus and the antidiscrimination obligations of universities under Title VI as if these complaints solely or primarily revolved around controversial political speech such as "From the River to the Sea, Palestine will be free."

A case in point is the just-published Antisemitism, Anti-Zionism, and Title VI: A Guide for the Perplexed, by lawprofs Benjamin Eidelson and Deborah Hellman. The authors barely address the obviously illicit nature of many of the activities alleged to be antisemitic, and incidents of assault, threats, and more are not addressed in their article.

Relatedly, the authors give extremely short shrift to the concern that the way universities have handles these activities reflects illegal disparate treatment of Jewish students. David L. and I write that the authors claim:

a university may defend a claim based on double-standards by arguing that most "claims by Jewish students are enmeshed with hotly disputed views about world affairs means that efforts to accommodate them may pose risks of chilling political speech or intruding on academic freedom that are less acute in many other cases."
The "natural comparator," therefore, would not be how the university treats discrimination claims in general, but how it treats "claims of discrimination and exclusion raised by Palestinian, Arab, and Muslim students."

In fact, claims of discrimination are often "enmeshed with hotly disputed views" on hot-button political issues (e.g., affirmative action, abortion, same-sex marriage), and if a university is applying a double standard to Palestinian, Arab, and Muslim students, the correct solution is to stop doing so, not to also discriminate against Jewish students.

Moreover, responding to disruptions, assaults, threats, and so on, does not impinge on protected speech to begin with, so recognizing that many claims of antisemitism are not about viewpoints but about illicit actions would make the threat of "chilling political debate" far more remote.

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[Jonathan H. Adler] Justice Kagan on Universal Injunctions in 2022

[Justice Kagan said "it just can't be right" that a single court judge can stop a federal policy in its tracks nationwide.]

Back in 2022, while speaking at the Northwestern University Law School, Justice Elena Kagan addressed the issue of universal injunctions, in the context of noting how the issuance of such injunctions forced the Court to consider more questions on an expedited basis through the emergency docket. Politico reported on the comments at the time, as noted by Sam Bray here.

Based upon the video, here are her remarks:

in in recent years some district courts have issued nationwide injunctions, and this happened in the Trump administration and it has also happened in the Biden administration so this has no political tilt to it, but some district courts have, you know, very quickly issued nationwide injunctions to stop a policy in its tracks that . . . the President and/or Congress has determined to be the national policy, and it just one district court stops it, and then you combine that with the ability of people to forum shop to go to a particular district court where they think that that will be the result and you look at something like that and you think that can't be right that one district court, whether it's in you know in the Trump years people used to go to the Northern District of California and in the Biden years they go to Texas, and it just can't be right that one district judge can stop a nationwide policy in its tracks and and leave it stopped for the years that it takes to go through normal process.

One question is what Justice Kagan meant by saying that "it just can't be right that one district judge can stop a nationwide policy in its tracks and and leave it stopped for the years." Was this merely a policy view -- that allowing individual district court judges such power is no way to run a railroad -- or was it a view of the law? And, if the latter, did Justice Kagan's view change? Was she persuaded by the briefing, subsequent academic scholarship or Justice Sotomayor's dissent? Or was there something about Trump v. CASA that justified an exception from a more general rule? As Justice Kagan did not write separately in that case (and, indeed, did not write much this term), I don't think we know.

The full video of Justice Kagan's remarks is available on YouTube, and embedded below. The relevant portion begins around the 40-minute mark.

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[Ilya Somin] Trump Administration Targets Iranian Christians for Deportation

[They face severe persecution if deported to Iran.]

Christianity Today reports that the Trump Administration is targeting Iranian Christian migrants for deportation:

On June 19, as Iran and Israel exchanged volleys of missiles and officials secretly finalized plans to dispatch American bombers to strike Iranian nuclear sites, pastor Ara Torosian published a letter to his church.

Torosian, an Iranian pastor at Cornerstone West Los Angeles, leads the church's Farsi-speaking congregation. He came to the United States as a refugee 15 years ago after being imprisoned for his faith. He has always carried in his heart a prayer, Torosian wrote: "that Iran would be free…."

But five days later, the suffering of his loved ones came suddenly very close.

On Tuesday, the pastor recorded on his phone as masked Immigration and Customs Enforcement (ICE) agents arrested two of his church members on a Los Angeles sidewalk. The Iranian husband and wife had pending asylum cases, according to Torosian. They fled Iran for fear of persecution for being Christians and had been part of his congregation for about a year.

The detentions add to a growing number of church members and Christians seeking religious protection who get picked up by ICE. Often they have no apparent criminal history. In many instances, they were in the United States lawfully, complying with orders from immigration courts. ICE has traditionally not deported individuals with pending asylum petitions, who are allowed to work while their cases proceed.

If deported back to  their country of origin, Iranian Christians face severe persecution at the hands of Iran's radical Islamist theocracy. That persecution has actually intensified in recent years, and includes criminalization of the promotion Christianity, and severe punishments for Christians considered to be "apostates" from Islam. This persecution makes Iranian Christians obvious candidates for asylum or refugee status (for which applicants are eligible based on persecution on the basis of religion, among other possible criteria). At the very least, those who have filed such applications must not be deported until those applications have gotten proper consideration.

I'm old enough to remember a time when conservative Republicans saw themselves as defending Christians against radical Islamism. Today, a GOP administration wants to deport Christians to persecution by a radical Islamist regime. The only people Trump considers worthy of refugee status  seem to be white Afrikaner South Africans. While they may have a plausible case (and I don't oppose admitting them), that of Iranian Christians - and many other severely oppressed groups - is much stronger

Sadly, this is far from the only situation where the Trump Administration seeks to deport migrants who fled oppression by the types of regimes conservative claim to especially oppose. The same story plays out in efforts to strip legal status from Afghans who fled the Taliban (including many who aided the US during the war), and Cubans, Venezuelans, and Nicaraguans who fled socialist dictatorships.

People who genuinely oppose socialism and radical Islamism would not close the doors against those regime's victims. Doing so is both unjust and harmful to the US economy (to which these immigrants contribute) and to America's struggle in the international war of ideas against these regimes. It's hard to credibly tell people we are better than these brutal despots when we callously deport their victims back to them, thereby facilitating the very oppression we claim to oppose.

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[Eugene Volokh] Congratulations to Jonathan Adler, Cited in Two Supreme Court Opinions Over the Past Two Weeks

His and Chris Walker's Delegation and Time was cited in Justice Gorsuch's dissent yesterday in FCC v. Consumers' Research and his Is the Business of the Court (Still) Business? was cited in Justice Jackson's dissent last Friday in Diamond Alternative Energy v. EPA.

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[Jonathan H. Adler] Bray and Bagley on Trump v. CASA

[Two worthwhile commentaries on the Supreme Court's decision to curtail universal injunctions.]

There has been quite a bit of quick commentary on the Supreme Court's decision to curtail the entry of universal injunctions in Trump v. CASA, much of it generating more heat than light (including that offered by President Trump). This post highlights two essays on the decision that are worth the read.

First is an op-ed by Samuel Bray in the New York Times, "The Supreme Court Is Watching Out for the Courts, Not for Trump." Professor Bray has been among the most persistent and important critics of universal injunctions and Justice Barrett relied upon his scholarship in her decision. In his op-ed, he gives his read of the decision, explains why it is unlikely to allow President Trump's unlawful Birthright Citizenship Executive Order to ever take effect, and explains why he thinks it "gives the courts a chance to reset, and to shift toward the more deliberative mode in which they do their best work." He notes that the decision surfaces "competing visions for the role of the courts in our constitutional system."

One vision is to say that the job of every judge is to declare the law and make sure everyone, including the president, follows it all the time. There's a lot to be said for following the law, and in our constitutional system, no one is above it.

Another vision is to say that the chief job of the courts is to decide cases. Resolving disputes is what gives the courts their legitimacy: It is the core of the judicial power given by the Constitution, and robust judicial power is tolerable in a democracy precisely because the judges stay in their lane. A judge's job is not to say, "Someone is wrong on the internet" and then do something about it. Instead, her job is to decide the case before her fearlessly, according to the existing law, and to give the proper remedy to whichever party wins.

As should be clear, the Court has embraced the latter conception. Indeed, Justice Barrett rejected Justice Jackson's explication of the alternative vision quite forcefully.

Bray adds:

We live in a time of great pressure on our constitutional system, with a president who thinks he can make laws (he can't), suspend laws (he can't) and punish enemies without a trial (he can't). It is precisely at this time that the first vision is most attractive — and the second vision is most essential.

The courts must defend constitutional rights and liberties. But they must defend them as courts defend them: deciding cases for the parties and giving remedies to the parties. That function is what gives courts their constitutional legitimacy in a democratic society.

It will mean that courts don't have the power to remedy every wrong. And it will mean that a patchwork of rulings sometimes persists. But to remedy every wrong immediately and everywhere — outside of the case and the parties — is not what the courts are designed for.

Another commentary worth reading is by Nicholas Bagley, who has also long been critical of universal injunctions, albeit from the Left. (He testified against them in 2020.) In an Atlantic essay, "The Supreme Court Put Nationwide Injunctions to the Torch," he suggests his fellow progressives should be more supportive of the Court's decision.

Although the Supreme Court divided along partisan lines, with the liberal justices dissenting, I don't see this as a partisan issue. (The outrageous illegality and sheer ugliness of President Donald Trump's executive order that lies underneath this fight may go some distance to explain why the three liberals dissented.) Nationwide injunctions are equal-opportunity offenders, thwarting Republican and Democratic initiatives alike. Today, it's Trump's birthright-citizenship order and USAID spending freezes. Yesterday it was mifepristone, the cancellation of student debt, and a COVID-vaccine mandate. Why should one federal judge—perhaps a very extreme judge, on either side—have the power to dictate government policy for the entire country? Good riddance.

Like Bray, Bagley notes the range of relief that will still be available to litigants, such as through class actions and (unfortunately) under the APA. He also sees universal injunctions as a symptom of broader problems in our legal culture that may take longer to fix.

Nationwide injunctions are a symptom of a legal culture that affords judges a central role in American policy making. Without changing that legal culture, and the many different laws and doctrines that underwrite it, any single change—even one as significant as ending nationwide injunctions—will yield only a modest course correction.

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[Eugene Volokh] Free Exercise Clause Rights to Opt Children Out of Public School Lesson That "Substantially Interfer[e]" with Their Children's "Religious Development"

[1.] The Supreme Court has been debating the meaning of the Free Exercise Clause for over 60 years. One view has been that the Clause generally gives religious objectors a presumptive right to be exempted from generally applicable laws, such as from bans on using peyote, requirements that one provide one's child's social security number to get various welfare benefits, requirements to provide certain health insurance to one's employees, and anything else that might conflict with one's religious beliefs.

This right was just a presumption, which the government could rebut if it has a strong enough reason. And indeed the presumption was often found to have been rebutted, in cases involving draft laws, tax laws, antidiscrimination laws, child labor laws, and more. But the presumption, though not very strong, was broad: It applied to a wide range of religious practices. Historically, that view had been associated mostly with the liberals on the Court, such as Justices Brennan and Marshall. The leading precedent here was Sherbert v. Verner (1963), written by Justice Brennan.

The opposite view has been that the Clause only forbids discrimination targeting religious believers or practices (such as laws that ban religious animal sacrifice but allow virtually identical secular killing of animals, or laws that exclude religious schools from various benefit programs that are offered to secular private schools). Historically, that view had been associated mostly with the conservatives on the Court, such as Justice Scalia and Chief Justice Rehnquist. The leading precedent here was Employment Division v. Smith (1990), written by Justice Scalia.

Curiously, the ideological polarity on this matter has flipped in recent years, with the Court's conservatives generally endorsing the traditional Brennan/Marshall view, and the liberals generally endorsing the Scalia/Rehnquist view. It looked, from cases such as Fulton v. City of Philadelphia (2021), like there were at least five votes on today's Court to bring back the broad-exemption-rights view.

But in today's Mahmoud v. Taylor, the conservative majority took a different approach: Rather than discussing government actions that interfere with religiously motivated behavior generally, it focused on a particular kind of government action—educational rules that substantially interfere with parents' ability to "direct the religious upbringing of their" children. And while this is just a narrowly defined Free Exercise Clause right (focused just on interference with religious upbringing), the protection appears to be quite strong.

In this respect, the right recognized here is structurally similar to another narrowly defined Free Exercise Clause right, seen in cases such as Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012) and Our Lady of Guadalupe School v. Morrissey-Berru (2020)—there, a right of religious institutions to choose their religious leaders and religious teachers, free of antidiscrimination rules. That too was a narrow right, focused on one particularly important facet of religious life; but it was a strongly protected right, within this narrow scope.

[2.] Mahmoud involved the Montgomery County (Maryland) Board of Education's decision to "introduce[] a variety of 'LGBTQ+-inclusive' storybooks into the elementary school curriculum," with no possibility of parental opt-out. According to the evidence cited by the majority, "These books—and associated educational instructions provided to teachers—are designed to 'disrupt' children's thinking about sexuality and gender," and to inculcate particular beliefs about sexual orientation and gender identity:

As one email sent by MCPS principals reflects, the Board selected the books according to a "Critical Selection Repertoire" that required selectors to review potential texts and ask questions such as: "Is heteronormativity reinforced or disrupted?"; "Is cisnormativity reinforced or disrupted?"; and "Are power hierarchies that uphold the dominant culture reinforced or disrupted?" …

A few short descriptions will serve to illustrate the general tenor of the storybooks. Intersection Allies tells the stories of several children from different backgrounds, including Kate, who is apparently a transgender child. One page shows Kate in a sex-neutral or sex-ambiguous bathroom, and Kate proclaims: "My friends defend my choices and place. A bathroom, like all rooms, should be a safe space."  Intersection Allies includes a "Page-By-Page Book Discussion Guide" that asserts: "When we are born, our gender is often decided for us based on our sex …. But at any point in our lives, we can choose to identify with one gender, multiple genders, or neither gender." The discussion guide explains that "Kate prefers the pronouns they/their/them" and asks "What pronouns fit you best?" (boldface in original). [Several other examples omitted. -EV]

Several parents challenged the refusal to provide an opt-out, because they viewed those positions as contrary to the religious beliefs that they were trying to teach their children. To focus on the lead plaintiffs,

Mahmoud and Barakat are Muslims who believe "that mankind has been divinely created as male and female" and "that 'gender' cannot be unwoven from biological 'sex'—to the extent the two are even distinct—without rejecting the dignity and direction God bestowed on humanity from the start." Mahmoud and Barakat believe that it would be "immoral" to expose their "young, impressionable, elementary-aged son" to a curriculum that "undermine[s] Islamic teaching."  And, in their view, "[t]he storybooks at issue in this lawsuit … directly undermine [their] efforts to raise" their son in the Islamic faith "because they encourage young children to question their sexuality and gender … and to dismiss parental and religious guidance on these issues."

[3.] The Court identified parents' right to direct their children's religious upbringing, relying mostly on Wisconsin v. Yoder (1972):

Under our precedents, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable. Employment Division v. Smith…. [But] in Smith, we recognized … that the general rule did not apply in Wisconsin v. Yoder because of the special character of the burden in that case…

Yoder concerned a Wisconsin law that required parents to send their children to public or private school until the age of 16. Respondents … were members of Wisconsin's Amish community who refused to send their children to public school after the completion of the eighth grade. In their view, the values taught in high school were "in marked variance with Amish values and the Amish way of life," and would result in an "impermissible exposure of their children to a 'worldly' influence in conflict with their beliefs."

In response, this Court observed that formal high school education would "plac[e] Amish children in an environment hostile to Amish beliefs … with pressure to conform to the styles, manners, and ways of the peer group" and that it would "tak[e] them away from their community, physically and emotionally, during the crucial and formative adolescent period of life." "In short," the Court concluded, "high school attendance … interposes a serious barrier to the integration of the Amish child into the Amish religious community."

In Yoder, … there was no suggestion that the compulsory-attendance law would compel Amish children to make an affirmation that was contrary to their parents' or their own religious beliefs. Nor was there a suggestion that Amish children would be compelled to commit some specific practice forbidden by their religion. Rather, the threat to religious exercise was premised on the fact that high school education would "expos[e] Amish children to worldly influences in terms of attitudes, goals, and values contrary to [their] beliefs" and would "substantially interfer[e] with the religious development of the Amish child."

That interference, the Court held, violated the parents' free exercise rights. The compulsory-education law "carrie[d] with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent" because it placed Amish children into "an environment hostile to Amish beliefs," where they would face "pressure to conform" to contrary viewpoints and lifestyles.

As our decision in Yoder reflects, the question whether a law "substantially interfer[es] with the religious development" of a child will always be fact-intensive.  It will depend on the specific religious beliefs and practices asserted, as well as the specific nature of the educational requirement or curricular feature at issue.

Educational requirements targeted toward very young children, for example, may be analyzed differently from educational requirements for high school students. A court must also consider the specific context in which the instruction or materials at issue are presented. Are they presented in a neutral manner, or are they presented in a manner that is "hostile" to religious viewpoints and designed to impose upon students a "pressure to conform"?

And the majority extended this principle beyond just a right to be excused from compulsory education (as in Yoder) to a right to potentially opt out from particular topics within a public school:

Due to financial and other constraints, … many parents "have no choice but to send their children to a public school." As a result, the right of parents "to direct the religious upbringing of their" children would be an empty promise if it did not follow those children into the public school classroom.

{[W]hen the government chooses to provide public benefits, it may not "condition the availability of [those] benefits upon a recipient's willingness to surrender his religiously impelled status." … Public education is a public benefit, and the government cannot "condition" its "availability" on parents' willingness to accept a burden on their religious exercise.} …

[4.] The majority concluded that the school's mandatory curriculum "substantially interferes with the religious development of [the challengers'] children and imposes the kind of burden on religious exercise that Yoder found unacceptable":

Like many books targeted at young children, the books are unmistakably normative [in support of certain views about same-sex marriage and about gender identity]…. These books carry with them "a very real threat of undermining" the religious beliefs that the parents wish to instill in their children…. That "objective danger" is only exacerbated by the fact that the books will be presented to young children by authority figures in elementary school classrooms. As representatives of the Board have admitted, "there is an expectation that teachers use the LGBTQ-Inclusive Books as part of instruction," and "there will be discussion that ensues."

The Board has left little mystery as to what that discussion might look like. The Board provided teachers with suggested responses to student questions related to the books, and the responses make it clear that instruction related to the storybooks will "substantially interfer[e]" with the parents' ability to direct the "religious development" of their children. In response to a child who states that two men "can't get married," teachers are encouraged to respond "[t]wo men who love each other can decide they want to get married …. There are so many different kinds of families and ways to be a family." If a child says "[h]e can't be a boy if he was born a girl," the teacher is urged to respond "that comment is hurtful."  If a child asks "What's transgender?", it is suggested that the teacher answer: "When we're born, people make a guess about our gender …. Sometimes they're right and sometimes they're wrong." …

{[We thus] cannot accept the Board's characterization of the "LGBTQ+-inclusive" instruction as mere "exposure to objectionable ideas" or as lessons in "mutual respect." … We similarly disagree with the dissent's deliberately blinkered view that these storybooks and related instruction merely "expos[e] students to the 'message' that LGBTQ people exist" and teach them to treat others with kindness.} …

[The dissent] suggests that the parents in this case have no legitimate cause for concern because enforcement of the Board's policy would not prevent them from "teach[ing] their religious beliefs and practices to their children at home." … According to the dissent, parents who send their children to public school must endure any instruction that falls short of direct compulsion or coercion and must try to counteract that teaching at home. The Free Exercise Clause is not so feeble….

[5.] Finally, the majority provided strong protection for this religious exemption right, by treating it as quite difficult for the government to overcome:

To survive strict scrutiny [applicable under this facet of the Free Exercise Clause], a government must demonstrate that its policy "advances 'interests of the highest order' and is narrowly tailored to achieve those interests." In its filings before us, the Board asserts that its curriculum and no-opt-out policy serve its compelling interest in "maintaining a school environment that is safe and conducive to learning for all students….

We do not doubt that, as a general matter, schools have a "compelling interest in having an undisrupted school session conducive to the students' learning." But the Board's conduct undermines its assertion that its no-opt-out policy is necessary to serve that interest…. [T]he Board continues to permit opt outs in a variety of other circumstances, including for "noncurricular" activities and the "Family Life and Human Sexuality" unit of instruction, for which opt outs are required under Maryland law. And the Board goes to great lengths to provide independent, parallel programming for many other students, such as those who qualify as emergent multilingual learners (EMLs) [about 1/4 of Montgomery county students] or who qualify for an individualized educational program [about of 1/8 of students]. This robust "system of exceptions" undermines the Board's contention that the provision of opt outs to religious parents would be infeasible or unworkable….

Nor can the Board's policies be justified by its asserted interest in protecting students from "social stigma and isolation." … [T]he Board cannot purport to rescue one group of students from stigma and isolation by stigmatizing and isolating another. A classroom environment that is welcoming to all students is something to be commended, but such an environment cannot be achieved through hostility toward the religious beliefs of students and their parents….

Several States across the country permit broad opt outs from discrete aspects of the public school curriculum without widespread consequences. And prior to the introduction of the "LGBTQ+-inclusive" storybooks, the Board's own "Guidelines for Respecting Religious Diversity" gave parents a broad right to have their children excused from specific aspects of the school curriculum. These facts belie any suggestion that the provision of parental opt outs in circumstances like these "will impose impossible administrative burdens on schools." …

I hope to have more about this case soon. (Among other things, Prof. Justin Driver and I filed an amicus brief urging the opposite result from the one the majority adopted, and I'll want to say a bit more about that.) But for now, I just wanted to quickly explain what the Court held and why.

Eric Baxter (Becket Fund) argued on behalf of the challengers, and Sarah M. Harris (U.S. Solicitor General's office) argued in support of the challengers on behalf of the federal government.

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[Eugene Volokh] Congratulations to Sam Bray and Will Baude, Cited in the Universal Injunction Case

It's Trump v. CASA, Inc.; Sam was cited extremely heavily (16 times by my count).

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

[Classroom commandments, the FBI's Most Wanted, and a phone book artifice. ]

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

This week, a federal judge granted IJ clients a temporary restraining order in our third case challenging new federal rules for money-services businesses along the Mexican border—rules that will drown honest people in paperwork and catch no drug traffickers. The scoreboard? Three cases, three TROs. Read all about it in The New York Times.

New on the Short Circuit podcast: Religious liberties that will delight your local pogonologist.

The Local Resident Voting Rights Amendment Act of 2022 gives noncitizens the right to vote in D.C. local elections, so long as they've lived in the district for at least 30 days before the election. Seven citizens challenge the law, alleging that it unconstitutionally dilutes their votes. District court: You and everyone else. No standing. D.C. Circuit: Reversed. "The litmus test is not numerosity but concreteness." Vote dilution is a concrete injury, even if all voters suffer it.During lineup, Nassau County, N.Y. detectives put shooting suspect on two phone books to make him appear taller. They also cover his hair, which was braided—the perp's was too short to braid. The victim identifies him, and he spends nearly 10 years in prison before exoneration. Second Circuit (over a partial dissent): "With enough artifice and disguise, almost anybody may end up fingered." No QI for the detectives. Louisiana prison nurse diagnoses inmate with a muscle strain in his hip after he gets hurt walking around the yard. Holy freak accident! The hip is broken. District court: While the initial misdiagnosis can be forgiven, it's a problem that she falsely reported after a follow-up visit that he could walk, had full range of movement, and that his pain was improving. No QI. Fifth Circuit (per curiam): Reversed.Texas gasoline producers: Hey EPA, you've been "ignoring comments that flagged flaws" for your new fuel standards! EPA: Well, maybe we didn't fully respond but we kind of did. At least. A bit. Fifth Circuit: "[T]hat half-hearted defense is lipstick on a pig."Louisiana passes a law requiring all public schools to display the Ten Commandments in every classroom. An Establishment Clause violation? Louisiana: What?! We just have a sincere secular interest in ensuring that students appreciate this foundational document of our state and national gov't. Fifth Circuit: Funny, then, how all the law's sponsors talked about how the display would inculcate Christian religious values. Preliminary injunction affirmed.Lake County, Ohio detainee goes without his medication for a week, has a heart attack, dies. Sixth Circuit: No QI for prison nurse who didn't call his pharmacy to verify his prescriptions or take 10 minutes to get the necessary release form filled out. Dissent: Now everyone in CA6 who dies in jail because they were briefly without their medication has a constitutional claim.Allegation: When Michigan prisoner threatens to file a grievance against a guard, the guard says, "Do it, and I will f*** you up again, n***er." Is that an adverse action that would deter a person of ordinary firmness from filing a grievance? Sixth Circuit (unpublished): A mere threat (or even a mere threat coupled with spitting in an inmate's face) would be fine. But this inmate has alleged a pattern of racist remarks, physical harm, and threats of physical harm. Case undismissed!Wayne County, Mich. coroner's office identifies but does not contact family of deceased man because they "were backed up and didn't get to it." The family hires a social worker to find him, but by then the body is in an advanced state of decomposition. It's cremated against the family's wishes before they can verify it's him. Sixth Circuit: The Michigan Supreme Court has made some general statements about the next of kin's right to possess the body but nothing that would put these officials on notice this was unconstitutional. QI. And since the law wasn't clearly established, the county isn't liable either. [Click here for a lovingly-crafted podcast episode on why conflating municipal liability with the clearly established test is wrong, bad, and bad wrong.]Almost a decade ago, the Saginaw County, Mich. sheriff seized a bunch of guns as part of a domestic-violence case. Plaintiffs: But those aren't the defendant's guns! They're our guns, and we want them back. Sixth Circuit: Sure seems like the district court should at least figure out whether they're actually your guns. Back to the trial court with you!Can the state of Michigan take and keep anonymized baby-blood samples without the parents' consent? Or does it violate the Fourth Amendment? Sixth Circuit: It's fine, at least as to these particular plaintiffs, who neglected to prove that they had a possessory interest in the blood spots and data.In this series of unfortunate events, an Indiana woman gets a default judgment against her based on $500 in unpaid gym-membership fees. But wait! She then declares bankruptcy and the debt is discharged. But wait! The gym continues trying to collect. And the woman ends up getting arrested and spending a weekend in jail for failing to show up at a hearing in the collections case. Civil contempt on the gym's part? Big time, though the bankruptcy court only awards the woman half of her compensatory damages and attorney's fees because she was partly at fault for the screw-up, for failing to alert the state court to the bankruptcy discharge. Seventh Circuit: Halving the compensatory damages makes sense—that's Comparative Fault 101—but not necessarily the attorney's fees.Prison medical provider: Hey Seventh Circuit, that $3 mil settlement you mentioned in one of your opinions recently was confidential! Please issue a redacted opinion. Seventh Circuit: The $3 mil settlement that Wexford Health Sources, Inc., paid to Eric Ollison, the victim of an appalling failure to provide needed medical care that caused permanent brain damage and physical injuries? That $3 mil settlement? We're afraid that's a matter of public record.Prolific bank robber escaped jail in the 1980s, leaving a note that read, "Gone fishing." True to his word, he went fishing—in Guatemala. There, a decade later, a teenage neighbor scrolling the FBI's Most Wanted list espied the man's picture. He became the first Most-Wanted fugitive caught by the internet, and he's been behind bars ever since. But now he's an old man who wants out on compassionate release. Eighth Circuit: Too bad. He offended before November 1987, so he doesn't qualify for the First Step Act's expansion of sentencing reduction.On the one hand, this Eighth Circuit case—about whether a Minnesota statute regulating bullion dealers still violates the dormant Commerce Clause after the district court severed the parts that violate the dormant Commerce Clause—deals with pretty workaday legal principles. On the other hand, "bullion" is fun to say, so it's going in the newsletter.In which the Eighth Circuit considers whether the Arkansas Code Revision Commission exceeded the bounds of its powers by rewriting the legislature's ban on hemp (and says it didn't).The Ninth Circuit has upheld the constitutionality of quite an arsenal of gun control laws over the years. But what about a challenge to California's law forbidding more than one gun purchase a month? Ninth Circuit: Yeah, even for us that's a bit much.District courts in the Ninth Circuit condition admission on being a member of the bar of the state in which the district court is located. Lawyers for Fair Reciprocal Admission argues that this violates the Sixth Amendment, the separation of powers, principles of federalism, the Privileges and Immunities Clause, the Privileges or Immunities Clause, the Equal Protection Clause of the Fourteenth Amendment, the equal protection component of the Fifth Amendment, the First Amendment, the Full Faith and Credit Act, the Rules Enabling Act, Federal Rules of Civil Procedure 1 and 83, and procedural due process. Ninth Circuit: Truly a staggering array of arguments, all of which we reject.Argentina's 1930 coup d'état ushered in a horribly violent period with the military overthrow of a half dozen gov't's and tens of thousands of people being killed or disappeared. In what became known as the Trelew Massacre, military officers removed nineteen unarmed political prisoners from their cells in the early morning hours of August 22, 1972, shooting them, killing all but three. (The survivors were later disappeared during the Dirty War.) The military gov't sought to cover up the murders, claiming that the prisoners had been trying to escape, and sent one of the officers to the U.S. later that year to make him harder to find. He's been here since; he became a U.S. citizen in 1987, and successfully fought off Argentina's extradition requests to criminally prosecute him. Family members of some of the victims sue under the Torture Victim Protection Act, are awarded $24 mil by a jury. Officer: Should've sued me sooner. Eleventh Circuit: We need more facts.

Commendations to the Spartanburg County, S.C.'s sheriff's office, which has announced that it will not conduct its annual search-and-seizure blitz, "Operation Rolling Thunder," this year. Every year since 2006, the sheriff directed deputies to pull over as many motorists as possible and seize as much cash as possible, subjecting thousands of innocent (mostly out-of-state) drivers to pretextual, warrantless searches on I-85. Last year, IJ recruited a South Carolina attorney (with standing to pursue public-records litigation) to pry loose records about the stops, and my my jeezy petes, what we found. You could write a multi-part expose about it.

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[Eugene Volokh] Today's Porn Age Verification Decision Doesn't Consider Minors' First Amendment Rights More Broadly

What are the First Amendment rights of minors? You might imagine two extreme positions:

Minors have the same rights as adults. Friendly amendment: Restrictions on their rights have to be judged under the same tests (such as "strict scrutiny") applicable to restrictions on adults' rights, even if the tests might sometimes practically play out slightly differently for minors and for adults.Minors have basically no First Amendment rights, just as they have basically no Second Amendment rights, no constitutional right to marry, and no constitutional right to choose to have sex (even though Lawrence v. Texas has held that adults do have sexual autonomy rights). Friendly amendment: Minors only have a constitutional right to access speech through their parents' express choices (e.g., when a parent buys the minor a book or a video game).

But it turns out that the Court hasn't accepted either of those positions (though Justice Thomas in the violent video game case, Brown v. Entertainment Merchants Ass'n (2011), dissented in an opinion that adopted a version of the amended position 2).

Rather, the Court has recognized a historically founded exception for material that's obscene as to minors, under which minors can be denied access to certain kinds of sexually themed speech. But the Court has declined to extend this exception, even just to violent video games (see the majority opinion in Brown).

Setting aside sexually themed material, minors thus appear to have much the same rights as adults. And nothing in today's Free Speech Coalition v. Paxton opinion affects that. We have position 1 for most speech, but position 2 for sexually themed speech.

How the First Amendment deals with minors is of course important for deciding whether the various state laws that try to limit minors' access to social media are constitutional. It's possible that some such laws might yet be upheld, especially to the extent that they are content-neutral. But Free Speech Coalition v. Paxton doesn't seem likely to be of help to those who are defending those laws.

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[Eugene Volokh] How Should Courts Analyze Age Verification Requirements for Porn That's Illegal for Minors?

[Prohibiting the distribution of porn to minors, the Court says, legitimately carries with it some burdens on adults as well, when the burdens are closely linked to distinguishing the adults and the minors.]

The majority in today's Free Speech Coalition v. Paxton began with the established principle (see Justice Brennan's majority opinion in Ginsberg v. N.Y. (1968)) that certain material may be constitutionally protected for adults but unprotected when distributed to minors:

When regulating minors' access to sexual content, the State may broaden Miller's "definition of obscenity" to cover that which is obscene from a child's perspective. To be more precise, a State may prevent minors from accessing works that (a) taken as a whole, and under contemporary community standards, appeal to the prurient interest of minors; (b) depict or describe specifically defined sexual conduct in a way that is patently offensive for minors; and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors. [The Miller definition for what can be prohibited even for adults would omit the italicized text from each prong of the test. -EV] …

The majority acknowledged that any age verification requirements "burden" the rights of adults in some measure—whether of the adult distributors (such as the vendor in Ginsberg) who must check patrons' age, or of adult patrons who have to prove their age. But it concluded that, because the speech was restrictable as to children, sufficiently narrow age verification requirements need not be judged under the highly demanding "strict scrutiny" test:

Age-verification laws like H.B. 1181 fall within States' authority to shield children from sexually explicit content. The First Amendment leaves undisturbed States' traditional power to prevent minors from accessing speech that is obscene from their perspective. That power necessarily includes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access speech that is obscene to minors without first submitting proof of age….

Requiring age verification is common when a law draws lines based on age … [citing as examples] proof of age to obtain a handgun license; to register to vote; and to marry. In none of these contexts is the constitutionality of a reasonable, bona fide age-verification requirement disputed.

Obscenity is no exception to the widespread practice of requiring proof of age to exercise age-restricted rights. The New York statute upheld in Ginsberg v. New York (1968) required age verification: It permitted a seller who sold sexual material to a minor to raise "'honest mistake'" as to age as an affirmative defense, but only if the seller had made "'a reasonable bona fide attempt to ascertain the true age of [the] minor.'" Most States to this day also require age verification for in-person purchases of sexual material. And, petitioners concede that an in-person age verification requirement is a "traditional sort of law" that is "almost surely" constitutional.

The facts of Ginsberg illustrate why age verification, as a practical matter, is necessary for an effective prohibition on minors accessing age-inappropriate sexual content. The statute in that case prohibited the knowing sale of sexual content to a minor under the age of 17. The defendant was convicted of knowingly selling a pornographic magazine to a 16-year-old. But, most of the time, it is almost impossible to distinguish a 16-year-old from a 17-year-old by sight alone. Thus, had the seller in Ginsberg not had an obligation to verify the age of the purchaser, he likely could have avoided liability simply by asserting ignorance as to the purchaser's age. Only an age-verification requirement can ensure compliance with an age-based restriction.

The need for age verification online is even greater. Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages. Without a requirement to submit proof of age, even clearly underage minors would be able to access sexual content undetected. "'[T]he basic principles of freedom of speech … do not vary' when a new and different medium for communication appears." Because proof of age performs the same critical function online that it does in person, requiring age verification remains an ordinary and appropriate means of shielding minors in the digital age from material that is obscene to them….

Instead, the majority concluded that it ought to apply the "intermediate scrutiny" that's usually used for content-neutral restrictions on speech or conduct; though this particular law did indeed turn on content, the Court concluded that in this instance that content classification shouldn't preclude applying intermediate scrutiny:

Because H.B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate the protected speech of adults….. On its face, the statute regulates only speech that is obscene to minors. That speech is unprotected to the extent the State seeks only to verify age. And, the statute can easily "be justified without reference to the [protected] content of the regulated speech," because its apparent purpose is simply to prevent minors, who have no First Amendment right to access speech that is obscene to them, from doing so….

Any burden experienced by adults is therefore only incidental to the statute's regulation of activity that is not protected by the First Amendment. That fact makes intermediate scrutiny the appropriate standard under our precedents.

In this respect, H.B. 1181 is analogous to the prohibition against destroying draft cards that this Court upheld in U.S. v. O'Brien (1968). The prohibition may have had the effect of making it unlawful to protest the draft by burning one's draft card. But, the "destruction" of a draft card is not itself "constitutionally protected activity," because the card is a Government document that, among other functions, serves as proof of registration. The prohibition on destroying draft cards thus placed only an incidental burden on First Amendment expression, making it subject to intermediate scrutiny. So too here, because accessing material obscene to minors without verifying one's age is not constitutionally protected, any burden H.B. 1181 imposes on protected activity is only incidental, and the statute triggers only intermediate scrutiny….

We agree that H.B. 1181 targets speech that is obscene for minors based on its communicative content. But, where the speech in question is unprotected, States may impose "restrictions" based on "content" without triggering strict scrutiny. Because speech that is obscene to minors is unprotected to the extent that the State imposes only an age-verification requirement, H.B. 1181's content-based restriction does not require strict scrutiny. The law is content based in the same way that prohibitions of "defamation," "fraud," and "incitement" are….

When speech has both protected and unprotected features, … "the unprotected features of the [speech] are, despite their [communicative] character, essentially a 'nonspeech' element" for purposes of the First Amendment. R.A.V. v. St. Paul (1992). With that principle in hand, H.B. 1181 fits comfortably within the O'Brien framework: The law directly regulates unprotected activity (accessing material that is obscene to minors without submitting to age verification) while only incidentally burdening protected activity (ultimately accessing that material)….

[A]s we have explained, the First Amendment leaves undisturbed States' power to impose age limits on speech that is obscene to minors. That power, according to both "common sense" and centuries of legal tradition, includes the ordinary and appropriate means of exercising it. And, an age-verification requirement is an ordinary and appropriate means of enforcing an age limit, as is evident both from all other contexts where the law draws lines based on age and from the long, widespread, and unchallenged practice of requiring age verification for in-person sales of material that is obscene to minors….

The defendant in Ginsberg, after all, was an adult vendor of pornography, not an underage purchaser. It would be difficult, practically speaking, for States to restrict children's access to pornography without regulating adult vendors. And, Ginsberg accordingly held that New York's content-based restriction on the rights of adult vendors triggered only rational-basis review. Thus, so long as the dissent accepts Ginsberg, it cannot deny that the question before us is which content-based regulations States may impose on adults without triggering strict scrutiny, not whether they may do so.

The majority also concluded that applying strict scrutiny here would unduly dilute its force in other areas, where this connection to constitutionally unprotected speech is absent. (See this post for more on that.) It added,

Petitioners would like to invalidate H.B. 1181 without upsetting traditional in-person age-verification requirements and perhaps narrower online requirements. But, strict scrutiny is ill suited for such nuanced work. The only principled way to give due consideration to both the First Amendment and States' legitimate interests in protecting minors is to employ a less exacting standard….

The dissent (by Justice Kagan, joined by Justices Sotomayor and Jackson) disagreed:

H.B. 1181 imposes … burdens on protected speech [for adults] based on the speech's "communicative content," making it a quintessential content-based law. {[The burden] may be smaller or larger—compare flashing ID in a store with (in the majority's own example) having to produce "an affidavit from [a] biological parent." It may be a simple inconvenience or it may … prevent individuals from exercising the right. And those differences may well matter to the conclusion when a court gets around to applying the appropriate constitutional standard. But regardless, an age verification mandate burdens an adult's First Amendment protected right in viewing obscene-for-children expression.}

A statute, we have often said, is content-based on its face when it "draws distinctions" based on the "topic," "subject matter," "idea," or "message expressed." … If the website has the requisite sexually explicit content, the regulation kicks in. Alternatively, if that content is absent (if, say, the website focuses on politics or sports), the regulation does not….

A statute tries to cut off children's access to sexually explicit speech, in line with the most worthy objectives. But the statute as well impedes adults' access to that speech, which the First Amendment protects. And the statute does so by drawing content-based lines: Sexually explicit speech is burdened, other speech is not. It follows, as the night the day, that strict scrutiny applies—that the statute, in addition to serving a compelling purpose, can restrict only as much adult speech as is needed to achieve the State's goal….

The majority tries to escape that conclusion with a maneuver found nowhere in the world of First Amendment doctrine. It turns out, the majority says, that the First Amendment only "partially protects" the speech in question: The "speech is unprotected to the extent the State seeks only to verify age." Meaning, the speech is unprotected to the extent that the State is imposing the very burden under review. Or said another way, the right of adults to view the speech has the burden of age verification built right in.

That is convenient, if altogether circular. In the end, the majority's analysis reduces to this: Requiring age verification does not directly burden adults' speech rights because adults have no right to be free from the burden of age verification. Gerrymander the right to incorporate the burden, and the critical conclusion follows. If only other First Amendment cases were so easy!

Still, the majority must make one more move to square the circle of all it has said. Recall that notwithstanding the above, the majority has conceded that "[a]dults have the right to access" obscene-for-children speech and age verification schemes are "a burden on the exercise of that right." To account for that concession in its analysis—and yet avoid strict scrutiny, as it wishes—the majority relies on a well-known distinction in First Amendment law between direct and incidental restrictions on speech.

Says the majority: The "burden experienced by adults" as a result of H.B. 1181 is "only incidental to the statute's regulation of activity that is not protected by the First Amendment." Or more fully (prepare for a mouthful): "The law directly regulates unprotected activity (accessing material that is obscene to minors without submitting to age verification) while only incidentally burdening protected activity (ultimately accessing that material)." And because the burden imposed on adults' right to access the materials is only incidental, the majority concludes, only intermediate scrutiny need apply. To back up that view, the majority relies (exclusively) on United States v. O'Brien (1968).

O'Brien actually seems a good place to start in explaining why H.B. 1181 is not an incidental restriction under our law. In that case, a war protester who burned his draft card was charged with violating a statute that made it a crime for anyone to "knowingly destroy[]," "mutilate[]," or "change[]" draft registration documents…. That law, the Court explained, prohibited all alterations of draft cards, indifferent to whether they were "public [or] private," expressive or non-expressive. So the "limitation[] on [O'Brien's] First Amendment freedoms" was purely "incidental." …

[But H. B. 1181] is not a regulation of conduct that just so happens, on occasion, to impinge on expressive activity. It is instead a direct regulation of speech, triggered by the amount of sexually explicit expression on a commercial website…. Rather than address the "noncommunicative" aspects of an activity … H.B. 1181 regulates (and regulates only) what no one here disputes are communicative messages….

The burden H.B. 1181 imposes, of course, raises constitutional concerns only for adults. But that fact does not make the law any less a direct, not incidental, restriction on protected expression. H.B. 1181 targets communicative content, and that alone—restricting adults' access to speech because of what it portrays, rather than because of any non-communicative element that it possesses….

Aaron Nielson, Texas Solicitor General, argued on behalf of the state.

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