Eugene Volokh's Blog, page 72

[Eugene Volokh] More Allegations of Race/Gender/Etc. Focus in Harvard Law Review Screening Process

From Aaron Sibarium (Washington Free Beacon):

When the Washington Free Beacon published documents showing how the Harvard Law Review selects articles based on race, the law review insisted those documents had been taken out of context.

The journal claimed the Free Beacon had quoted "selectively" from "five internal memos going back more than three years," adding that the Harvard Law Review "considers several thousand submissions annually."

"The Review does not consider race, ethnicity, gender, or any other protected characteristic as a basis for recommending or selecting a piece for publication," the journal wrote in a fact sheet published on May 27.

But according to new documents obtained by the Free Beacon, the law review eliminates more than 85 percent of submissions using a rubric that asks about "author diversity." And 40 percent of journal editors have cited protected characteristics when lobbying for or against articles—at one point killing a piece by an Asian-American scholar, Alex Zhang, after an editor complained in a meeting that "we have too many Yale JDs and not enough Black and Latino/Latina authors."

There's a lot more there; worth reading the whole thing. If there's a response from the Harvard Law Review or otherwise, I'll of course be glad to link to that as well. Seems to me valuable to know more about how an institution that has historically aimed to be seen as a leading scholarly journal, rather than just as an ideological advocacy organization, actually operates.

Note that there are also separate questions (1) whether a law review's race-based selection decisions (if such have been made) violate antidiscrimination law (see, e.g., Michael Dorf's posts exploring that), and (2) whether a law review might have a First Amendment defense to any such charges. But at this point I'm just particularly interested in what such journals are actually doing.

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[Josh Blackman] N.Y. Times Magazine Reveals Internal Conflicts On The Left With Skrmetti

[The groups presented a unified front, but with a 6-3 loss, recriminations are flying. ]

As the saying goes, success has many parents, but failure is an orphan. Such is Skrmetti. Barely twenty-four hours after the landmark decision, the New York Times Magazine published a lengthy profile of the case. I would encourage you to read the entire piece. We often think of the political left as some sort of monolithic and coherent institution of group think. But this article reveals many fractures on the left, some of which I suspected, but had no first-hand knowledge.

First, the article speaks to how quickly the national conversation changed around transgender rights. During the lead-up to Windsor and Obergefell, I often remarked how effective the social movement was for gay marriage. The argument was simple: allowing this couple to marry will in no way affect traditional marriage. Even the phrase marriage equality was so easy to grasp! I don't think things were so simple, but the messaging was effective. Moreover, the movement took decades to develop. People had time to accept the argument on their own terms.

However, the argument for transgender rights felt much different. Most Americans had no clue what "cisgender" or "gender affirmative care" meant. Yet, if people refused to uses these neologisms, they were cancelled and deemed bigots. And, unlike with gay marriage, the transgender movement necessarily required others to make changes. People would have to accept transgender athletes in female sports. Women who had privacy concerns about bathrooms would have to just suck it up. And that was before doctors started telling parents they could either have a dead daughter or a live son, coupled with school districts that deceived parents. All of this seemingly happened in a few years. Trump had so much influence in averting this movement.

Second, Bostock was a case about LGB as well as T, but the T only followed from the (wrong) textualist argument that Justice Gorsuch convinced himself of. And the Times articles reveals how the advocates, including Chase Strangio of the ACLU, tried to bamboozle Gorsuch directly:

Indeed, as Strangio recounted in an interview later that year, the lawyers had spent months workshopping just such a path to victory, ultimately landing on a simple argument: All the justices needed to accept was that Stephens would not have been fired for asking to wear women's clothing at work if her sex was female.

"So, fine," Strangio explained. "Say it's assigned sex at birth, say it's whatever you want — but it's because of sex." At oral argument, another A.C.L.U. lawyer reassured Gorsuch, who was considered the key vote, that protecting trans people would not lead to social upheaval — assurances that Strangio privately chafed at but that he recognized as tactically effective. "We wanted them to apply the law," Strangio said. "And we wanted them, particularly Gorsuch, to believe that it wasn't a big deal."

But Strangio--who sees the Supreme Court as "vile"--saw what Justice Gorsuch did not:

Yet in practice, Strangio and other civil rights lawyers believed that Bostock was a very big deal. In their view, they had successfully maneuvered the Supreme Court — a "vile institution," as Strangio put it — into setting a far-reaching judicial precedent. At the time, other pathways to expand rights for L.G.B.T.Q. people were narrowing. Despite progress in left-leaning states, legislation to enshrine housing, workplace and other protections at the federal level had stalled in Congress, in part because L.G.B.T.Q. groups refused to consider carve-outs — demanded by otherwise sympathetic Republicans — to protect religious institutions. Bostock seemed to offer a way to attain those rights without the compromise and horse-trading of legislation.

Yes, Bostock killed the possibility of legislative compromise--yet another reason why this decision is so inconsistent with how Gorsuch usually approaches the judicial process.

Third, transgender activists like Strangio thought momentum was on their side--as the saying goes, they were on the right side of history. Indeed, Merrick Garland had to be pushed to file in support of the Tennessee challenge:

When Tennessee's ban passed in February 2023, lawyers in the department's civil rights division lobbied to move aggressively. The attorney general, Merrick Garland, was at first skeptical. In conversations, Garland and his advisers weighed whether the case was strong enough to merit the time and resources it would consume if the civil rights division were to intervene. Eventually, though, Garland signed off.

I am reasonably confident that Garland was lobbied by Solicitor General Elizabeth Prelogar, his former clerk, and someone who carried great influence. Prelogar was almost certainly a source for this story.

Fourth, we see there were serious disagreements about strategy. Some other groups wanted to move more incrementally, and seek relief in state court. This strategy has proven successful with abortion post Dobbs. But the bigger problem is that not all progressives saw transgender rights as their fights. I am still flummoxed by the ostracization of the so-called TERFs, who seek to preserve rights for women.

L.G.B.T.Q. groups and the A.C.L.U. might have looked to state courts, seeking incremental wins without the risk of a binding Supreme Court precedent, as the movement had done for years in fighting anti-sodomy laws. They could also have waited for a case on more politically favorable ground, such as restrictions on military service or medical care for trans adults. The A.C.L.U. saw it differently. A few weeks after Sutton's ruling, the organization petitioned the Supreme Court to review Skrmetti.

In recent months, Strangio and other trans activists have pleaded for broader public solidarity with their cause, arguing that the defense of gender-affirming care is closely intertwined with the defense of reproductive freedom and bodily autonomy for women. But when I asked Romero if the A.C.L.U. had consulted with women's rights groups before bringing Skrmetti — with its high-stakes claims about sex-discrimination protections — before the Supreme Court, he seemed impatient. "I don't play 'Mother May I?' with a group of sister organizations," Romero said. "I don't run a peer-review journal. I make the best decisions for this organization on its own."

Fifth, there is a lot of consternation about whether the ACLU should have petitioned for cert after the Sixth Circuit upheld the Tennessee law.

Some civil rights experts I spoke with think it was a mistake to take Skrmetti to the Supreme Court. In their view, it was highly unlikely that the court, now with an even larger conservative majority than when it decided Bostock, was prepared to expand constitutional civil rights protections to a new class of Americans — let alone on the grounds of medical transition for minors. "If you get a bad ruling on this, it could be really problematic," Michael Ulrich, a professor of health law and human rights at Boston University, told me this spring. "If you can't win a challenge to strike down a gender-affirming care ban, it's going to be hard to win other cases around trans rights."

Recently, a decision was made to not appeal the Fifth Circuit's ruling that DACA was unlawful. The ruling was limited to Texas. I think immigrant groups were willing to lose DACA for Texas, to avoid setting a nationwide precedent. But trans laws existed in nearly two dozen states. This issue was not going away. And as history would reveal, the scientific "consensus" was dwindling by the day. The best strategy was to try to move quickly, while Biden was still in office.

Sixth, we also learn that DOJ preferred Skrmetti over the Alabama case, as it had fewer vehicle problems.

The former senior Justice Department official argued that the Alabama case — awaiting further appellate review and mired in arguments about discovery — wasn't "a viable vehicle" for Supreme Court review. And once the A.C.L.U. went ahead in Tennessee, this official told me, the Biden administration had to follow. Steering clear of Skrmetti "would have telegraphed loudly to the court that the department didn't have the courage of its convictions," the official said. Not long after the A.C.L.U. asked the Supreme Court to hear the Tennessee case, the department filed its own petition.

Seventh, as the case was being argued, public perception about the case changed--in particular the WPATH emails revealed an obvious attempt to suppress information. Some unnamed Biden aide throws Admiral Levine under the battleship.

Just as WPATH's internal emails began trickling into public view, the Supreme Court announced that it would hear Skrmetti. Not long after, Levine's requests to WPATH were reported by The Times. White House officials were blindsided, several told me. Though Levine would later tell Biden aides that she had been trying to protect the president, the West Wing saw it differently: Her request could suggest that the administration thought there should be no minimum ages at all. "Everyone was like, holy cow — did Rachel Levine really go out and lobby for 9-year-olds to get surgery?" one former Biden aide told me. (Levine's spokesman says she based "all policy recommendations on the best available science.")

Eight, DOJ felt hoodwinked, as some of the statements made in lower court proceedings could no longer be justified.

But in court, Justice Department lawyers had held up WPATH's recommendations, and those of other medical associations, as reliable guidelines for care. If the federal government could pick and choose from among WPATH's recommendations, Alabama's attorney general later argued in a blistering amicus brief in Skrmetti, why couldn't states? The White House understood its dilemma, two of the aides told me, but concluded that it was more important to prevent Trump from being re-elected.

There was also growing tension between the A.C.L.U. and the Justice Department, three former government officials told me. (The A.C.L.U. and a spokeswoman for Prelogar denied this account.) In later briefs to the court, the administration would brush off the Alabama revelations as "out-of-context excerpts" from "a different case." In private, though, some administration lawyers worried that their allies had pushed them onto thin scientific ice.

There is much here to consider. I still haven't finished reading Skrmetti. I think the Barrett and Alito opinions are worth careful consideration.

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[Paul Cassell] Can Federal Prosecutors Avoid Judicial Review of Dismissal Motions by Agreeing in Advance With a Defendant Not to Prosecute?

[The Justice Department and Boeing are trying that dubious maneuver, which eviscerates the requirement in the federal rules that judges must approve dismissal motions.]

Currently before Judge O'Connor in the long-running criminal prosecution of Boeing is the Justice Department's recently filed motion to dismiss. I've blogged about this case many times before, including  here, here, and here. Boeing is facing a federal conspiracy charge, filed in January 2021, for defrauding the FAA about the safety of Boeing's 737 MAX aircraft. Late yesterday, I filed an opposition to the motion to dismiss for fifteen Boeing 737 MAX crashes victims families. The opposition not only presents strong objections to the Department walking away from the prosecution, but also presents an important separation of powers question about whether courts will continue to have the power to review prosecutors' motions to dismiss.

Some background about dismissal motions is helpful helpful here: Under Federal Rule of Criminal Procedure 48(a), a dismissal requires "leave of court." This judicial review has been part of the rules for more than 80 years and is designed to check potential prosecutorial abuses. It is standard practice for federal courts to review dismissal motions, and even hold hearings on them if there is some question about the grounds for dismissal. VC readers may recall my (and  my co-bloggers) earlier posts, for example, on the dismissal motion in the Mayor Adams case.

In yesterday's filing, my lead argument opposing the pending motion to dismiss the Boeing charge concerns an unprecedented maneuver by the Justice Department. Before filing its motion to dismiss with the Court, the Justice Department negotiated with Boeing a non-prosecution agreement (NPA). The parties included in their NPA a provision in which the Department agreed not to further prosecute Boeing. This provision took effect several weeks ago, even before Judge O'Connor has had an opportunity to rule on the currently pending motion to dismiss.

In my opposition for the victims' families, I explain why this subterfuge would destroy Rule 48(a)'s judicial review requirement:

If this Court approves the parties' maneuver in this widely publicized case, then this unprecedented approach will likely become the blueprint for all future dismissal motions in federal criminal prosecutions. Before filing a motion to dismiss under Rule 48(a), the Government and the defendant will simply enter into a non-prosecution agreement containing the no-further-prosecution language found here. Then the Government will file its dismissal motion, and any action that the Court might take thereafter becomes essentially irrelevant. For example, even if the Court were to provide a perfectly good (but previously unconsidered) reason for the Government to move forward with prosecuting the case, the Government has already committed not to do so.

Against this backdrop, approving the Government's and Boeing's audacious scheme would effectively block Rule 48(a) from achieving the purposes it was designed to serve. The Rule provides judicial review of prosecutors' dismissal motions so that "[t]he public and crime victims, not to mention the government and defendants, necessarily and correctly see accountability with Article III from start to finish." Ryan, 88 F.4th at 625 n.9. It has long been recognized that, by adopting Rule 48(a), "the Supreme Court intended to … vest[] in the courts the power and duty to exercise a discretion for the protection of the public interest …." Id. at 628 n.12 (citing Cowan, 524 F.2d at 511). As a result, "[p]ublic perception and confidence in the criminal justice system assume that when criminal charges are submitted for judicial resolution, the courts vigilantly will enforce the public interest …." Id. at 626.

The Government and Boeing's private agreement to evade any judicial protection of the public interest is "'clearly contrary to manifest public interest public interest' as assessed 'at the time of the [motion] to dismiss.'" Id. at 627 (quoting Hamm, 659 F.2d at 629). Simply put, it cannot be in the public interest to eliminate the judiciary's public interest review. Tautologically, the very purpose of public interest review is to protect the public interest. For whatever reason, the Government and Boeing may find that review distasteful. But it is this Court's obligation to enforce Rule 48(a)'s mandate.

This maneuver also violated the families' rights under the Crime Victims' Rights Act (CVRA). My brief explains that during two meetings with the families, the Justice Department suggested that it was going to allow Judge O'Connor to consider the motion to dismiss before the Department entered into an agreement blocking further prosecution of Boeing:

By deceptively creating the impression that it would proceed through the normal course of allowing a judicial decision on its Rule 48(a) motion to dismiss, the Government deprived the victims' families of their "reasonable right to confer with the attorney for the Government in the case." 18 U.S.C. § 3771(a)(5). While the Government need not confer about every minor detail of a proposed resolution, the no-further-prosecution provision is a staggeringly important and unprecedented provision that the Government should have disclosed and discussed with the victims' families. The "reasonable right to confer" would necessarily encompass such an important provision, particularly where the victims' families and their counsel could—and did—assume that the Justice Department would not maneuver to avoid Rule 48(a) scrutiny. For the same reasons, concealing from the victims' families this shift from normal processes violated the families CVRA right to be "treated with fairness." 18 U.S.C. § 3771(a)(8).

I also advance other arguments against the motion to dismiss.

One of the most significant problems with the dismissal is that the Department is proposing that the motion to dismiss be "without prejudice." Dismissal without prejudice would purportedly allow the Department to re-file the criminal charge if Boeing failed to live up to its NPA obligations, particularly its obligations to improve its corporate compliance and safety measures. But Boeing's obligations in the accompanying NPA are unenforceable. The parties have neglected to inform the Court that the underlying statute of limitations on Boeing's conspiracy crime has now expired. Accordingly, the Government's claim that a dismissal  would somehow be "without prejudice"—i.e., would leave it free to re-file the charge against Boeing and pursue prosecution—is a sham.

I also argue that granting the motion to dismiss would exempt Boeing from any independent monitoring of its corporate compliance and safety efforts. Last December, Judge O'Connor rejected a proposed plea agreement as against the public interest where that agreement failed to provide for adequate monitoring of Boeing. The proposed NPA backtracks from even those insufficient monitoring measures and thus is, by definition, even further contrary to the public interest than last year's now-rejected plea deal.

I also argue that the Department and Boeing are ignoring Judge O'Connor's previous ruling that Boeing directly and proximately caused the deaths of 346 passengers and crew in the two Boeing 737 MAX crashes. The parties are now asking him to approve the motion to dismiss because it allegedly secures the maximum possible fine against Boeing. But their arguments ultimately rest on inaccurate sentencing guidelines calculations that assume Boeing's crime was victimless—contrary to the Court's previous ruling. Rather than lend its approval to the parties' misleading calculations, Judge O'Connor should deny the motion to dismiss for this reason as well.

I also explain that the proposed motion to dismiss rests on "additional victim compensation" payments by Boeing that would be paid directly to the victims' families. These payments appear designed to persuade the families to support the NPA and thus allow the company to essentially buy its way out of a criminal conviction. I argue for the victims' families I represent that the Court should not endorse such a clear violation of the fundamental principle that rich and poor alike are to be treated equally in the administration of criminal justice.

In terms of next steps in the case, the Justice Department and Boeing have an opportunity to reply. And then the issue of whether to dismiss the criminal charge against Boeing for the "deadliest corporate crime in U.S. history" will be squarely before Judge O'Connor.

 

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[Ilya Somin] Writings on Juneteenth, its Meaning, and its Significance for American Liberty

[Compendium of links to my writings about the holiday celebrating the abolition of slavery.]

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Today, is Juneteenth, the federal holiday commemorating the abolition of slavery - the greatest triumph of freedom in American history. In this post, I compile some links to my writings relevant to the holiday and its significance. All are posts published here on the Volokh Conspiracy blog.

"Juneteenth and the Universalist Principles of the American Revolution," June 19, 2021. This post explains how abolition was a fulfillment rather than a repudiation of the principles of the American Revolution, despite attempts of some on both right and left to claim otherwise.

"Reflections on Juneteenth," June 19, 2024. This post extends and elaborates on the points made in the 2021 post, and condemns the lame culture war over the holiday.

"Slavery, the Declaration of Independence and Frederick Douglass' 'What to the Slave is the Fourth of July?'", July 4, 2020. Douglass's famous speech sheds light on some of America's greatest evils - but also on the great good done by the Revolution and Founding. This post - and Douglass's speech - are not about Juneteenth, as such. But they are obviously relevant. Douglass rightly argued that the principles of the Revolution required the abolition of slavery - while also condemning the hypocrisy of the many white Americans who claimed otherwise.

"The Case Against the Case Against the American Revolution," July 4, 2019. A rebuttal to longstanding arguments - advanced by critics on both right and left - that the Revolution did more harm than good. The claim that the Revolution somehow set back abolition is a central argument of many of those critics. I explain why that argument is wrong.

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[Jonathan H. Adler] On Frederick Douglass, the Declaration of Independence, and Juneteenth

[Lucas Morel and Jonathan White channel the insight and vision of Frederick Douglass.]

Today is Juneteenth. The most recently recognized federal holiday (formalized in 2021 as Juneteenth National Independence Day), Juneteenth recognizes the freeing of enslaved people in Texas at the end of the Civil War.

In today's Wall Street Journal, Lucas Morel and Jonathan White write on the day's significance:

Juneteenth joined Independence Day as a federal holiday in 2021, celebrating the day the Emancipation Proclamation freed slaves in the outer reaches of rebel-held territory. Critics of Lincoln's proclamation—now as then—say it was ineffective because it took so long to be enforced. Yet Frederick Douglass, who devoted his life to freedom for black Americans, understood that paper declarations sowed the seeds of a more perfect union.

On June 19, 1865, Maj. Gen. Gordon Granger declared at Galveston, Texas, that "all slaves are free" by virtue of Lincoln's edict dated Jan. 1, 1863. It took more than two years to make the promise of freedom a reality.

As Morel and White note, Frederick Douglass saw the Declaration of Independence as a commitment to individual liberty and human dignity that would be fulfilled over time. In the same way, the Emancipation Proclamation was issued in 1863, but not given full effect throughout the southern states until the end of the war in 1865 (and slavery would not be wholly eradicated under U.S. law until ratification of the 13th Amendment).

They write:

Although Douglass disagreed with Lincoln about the timing and rationale of emancipation, he predicted that Lincoln's proclamation would stand as "the greatest event of our nation's history, if not the greatest event of the century," placing "the North on the side of justice and civilization, and the rebels on the side of robbery and barbarism." Douglass and Lincoln alike clearly took inspiration from the Declaration of Independence—America's first Emancipation Proclamation. Both were committed to realizing the promises of 1776, nearly a century later.

Juneteenth and Independence Day honor the struggle of an imperfect people on an imperfect path to freedom and equality. American history—"a heap of Juneteenths," in the words of Ralph Ellison—can be read as one journey, full of setbacks and triumphs, toward realizing the truths of the Declaration of Independence. That "ink and paper proclamation," nearly 250 years old, established a way of life that remains, in Lincoln's words, "the last best hope of earth."

Of additional note, Morel and White have a forthcoming volume of Douglass's writings on Abraham Lincoln. I very much look forward to reading it.

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[Eugene Volokh] Guns, Felons, Religion, and Islam

From U.S. v. Thompson, decided Monday by Judge Karen Marston (E.D. Pa.):

On August 12, 2004, Thompson was sentenced to eight to twenty years' imprisonment after being convicted in the Court of Common Pleas of Philadelphia County for Attempted Murder, Aggravated Assault, Carrying Firearms without a License, and Possession of an Instrument of Crime. He was paroled on August 15, 2011. While still on parole on December 20, 2022, Thompson allegedly possessed a Ruger, Security 9, 9mm semi-automatic pistol loaded with fifteen live rounds of ammunition….

He was prosecuted for being a felon in possession, and argued, among other things, that this violated his religious freedom "by substantially burdening his ability to adhere to the Quran's requirement that he carry arms during prayer as a practicing Muslim":

RFRA "guarantee[s] more generous protections for religious freedom than are available under the Supreme Court's present interpretation of the First Amendment," by "proscrib[ing] government conduct which 'substantially burdens a person's exercise of religion' unless the government can demonstrate, inter alia, that the burden is the 'least restrictive means of furthering a compelling government interest.'" …

Thompson identifies as a "devout Muslim" and "strict adherent" to the teachings of the Quran, "the central religious text in the practice of Islam [and] a revelation directly from Allah." According to Thompson, the Quran "requires him to carry arms" during prayer. (See Doc. No. 26-1 (a passage from the Quran attached to Thompson's motion, which purportedly states, "And when you are among them and lead them in prayer, let a group of them stand [in prayer] with you and let them carry their arms.").) He argues that § 922(g)(1) substantially burdens his ability to do so.

The court concluded that Thompson hadn't adequately alleged that he believes the Quran requires him to carry firearms:

Thompson's argument relies entirely on a single passage from the Quran, which, according to his supplied translation, instructs the carrying of "arms" and refusal to neglect "weapons" during prayer. But § 922(g)(1)'s prohibition is limited to the possession of a firearm. Thompson does not argue or otherwise show that he can follow the Quran's mandate to carry "arms" or "weapons" during prayer only through possession of a firearm. Indeed, he seems to concede that these words in the Quran encompass more than just firearms: "The Quran provides that during prayer, you should carry arms and not neglect your arms. Arms are generally accepted as weapons, including firearms."

In short, Thompson has not established that compliance with § 922(g)(1)—which, as the Government argues, does not prohibit Thompson from possessing other types of weapons, like a knife or a sword, during prayer—"seriously violates [his] religious belief." …

(For a similar argument in a different factual context, see Tony & Susan Alamo Found v. Secretary of Labor (1985), where the Court rejected a Free Exercise Clause challenge to federal minimum wage law; the challengers claimed that they had a religious objection to being paid "wages" for their work for a religious organization, but the Court reasoned that the challengers' own characterization of their religious beliefs didn't preclude applying the law: "Since the associates currently receive [board, lodging, and seminilar] benefits in exchange for working in the Foundation's businesses, application of the Act will work little or no change in their situation: the associates may simply continue to be paid in the form of benefits. The religious objection does not appear to be to receiving any specified amount of wages. Indeed, petitioners and the associates assert that the associates' standard of living far exceeds the minimum. Even if the Foundation were to pay wages in cash, or if the associates' beliefs precluded them from accepting the statutory amount, there is nothing in the Act to prevent the associates from returning the amounts to the Foundation, provided that they do so voluntarily. We therefore fail to perceive how application of the Act would interfere with the associates' right to freely exercise their religious beliefs.")

The court also concluded that, in any event, applying the felon in possession ban to Thompson would pass strict scrutiny:

Even if Thompson had established that § 922(g)(1) substantially burdened his religious belief that he is required to carry arms during prayer, the Court would find that the Government's prosecution of Thompson under § 922(g)(1) is the least restrictive means of furthering its compelling interest in promoting public safety and preventing violent crime through the uniform application of § 922(g)(1)….

[T]he Government has "a compelling interest in public safety and preventing crime through the uniform enforcement of gun control laws," including § 922(g)(1)…. The Court also agrees with the Government that exempting Thompson from prosecution under § 922(g)(1) based on his religious belief that he must carry (fire)arms would "seriously compromise [the Government's] ability to administer" § 922(g)(1). It would create an exception for any convicted felon who claims that possession of a firearm is necessary to adhere to his religious beliefs and thus render § 922(g)(1) effectively unenforceable.

For the same reason, the Court finds that prosecuting Thompson represents the least restrictive means to further the Government's compelling interest in the uniform enforcement of § 922(g)(1)…. [T]here are no statutory exceptions to § 922(g)(1), thus this is not a situation where "the existence of government-sanctioned exceptions to a scheme purporting to be the least restrictive one possible can show that other, less-restrictive alternatives could be envisaged."

Robert E. Eckert represents the government.

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[Eugene Volokh] News Site Can Be Prosecuted for Publishing Home Addresses of Police, Prosecutors, and Judges

[So the New Jersey Supreme Court unanimously held Tuesday; the decision allows civil liability as well as criminal punishment, once the government official demands that the newspaper (or anyone else) stop publishing this information.]

From the opinion in Kratovil v. City of New Brunswick:

The Legislature enacted Daniel's Law "to enhance the safety and security of certain public officials in the justice system," thereby enabling those officials to "carry out their official duties without fear of personal reprisal." Subject to strict notice requirements [under which the official must first demand that the information be removed and not published -EV], Daniel's Law prescribes a procedure by which the home address and unpublished home telephone number of a public official designated as a "covered person" can be protected from disclosure or redisclosure. Daniel's Law imposes civil liability on persons, businesses, and associations that violate the statute, and provides for criminal liability for reckless or intentional violations…

In 2023, plaintiff Charles Kratovil learned through a records request pursuant to the Open Public Records Act (OPRA), that the voting address of defendant Anthony Caputo, the New Brunswick Police Director, was in the Borough of Cape May. Kratovil began working on a story about Caputo's residence. After Kratovil disclosed Caputo's address to local officials, Caputo notified Kratovil that he was a covered person under Daniel's Law and requested that Kratovil refrain from republishing his exact home address.

The New Jersey Supreme Court upheld the statute. It cited various Supreme Court precedents, including Florida Star v. B.J.F. (1988), which held (in striking down a ban on publishing the names of rape victims):

We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense. We hold only that where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order, and that no such interest is satisfactorily served by imposing liability under [the Florida statute] … under the facts of this case….

And here's how it applied the precedents:

[1.] Our first inquiry is whether Caputo's home address is truthful information that was lawfully obtained and is of public significance…. Kratovil lawfully obtained Caputo's home address from the records custodian of the Cape May Board of Elections in response to an OPRA request…. [T]here is no indication in the record that Kratovil violated any law in his communications with the custodian.

We do not conclude that because Kratovil was permitted to write a story identifying Cape May as the municipality where Caputo lived without including his precise home address, this case does not involve a matter of public concern. In Florida Star, the Court did not frame the question to be whether the crime victim's name was itself a matter of public concern, but whether the subject of the news article was a matter of public concern. It found that the subject of the article—violent crime investigated by law enforcement—was a matter of public concern.

In the specific setting of this appeal, the contested information—Caputo's exact home address in Cape May—is related to Kratovil's proposed story suggesting that Caputo lived too far from New Brunswick to effectively discharge his public duties. The subject matter of the story—a public official's alleged failure to perform his duties because he lived hours from the community he served—is clearly a matter of public concern. We therefore hold, in the specific circumstances of this case, that Caputo's home address in Cape May relates to a matter of public concern, and modify the Appellate Division's decision with respect to that issue….

[2.] The second inquiry … is whether the challenged law "serves 'a need to further a state interest of the highest order.'" … [The Legislature] enacted Daniel's Law "to enhance the safety and security of certain public officials in the justice system, including judicial officers, law enforcement officers, child protective investigators in the Division of Child Protection and Permanency, and prosecutors, who serve or have served the people of New Jersey," and their immediate family members, "to foster the ability of these public servants who perform critical roles in the justice system to carry out their official duties without fear of personal reprisal from affected individuals related to the performance of their public functions."

In a federal challenge to Daniel's Law, the United States District Court for the District of New Jersey noted "the well-known fact, amply documented by the record [in that case], that in recent years judges, prosecutors, police, correctional officers, and others in law enforcement have been the subject of an ever increasing number of threats and even assassinations," some of which "have been facilitated by malefactors obtaining the home address or unlisted phone number of their targets." And the Attorney General's amicus submission here cited numerous sources, including a statistical report by the U.S. Marshals Service and news coverage of the recent killing of a New Jersey police officer, that underscore the persistence and severity of the problem the Legislature enacted Daniel's Law to address. New Jersey's interest in protecting public officials from such threats and thus ensuring that they may carry out their duties without fear of harm to themselves or their families is clearly a state interest of the highest order under Daily Mail and Florida Star….

[3.] Finally,… the Legislature carefully calibrated the statute to serve a state interest of the highest order by the least restrictive means.

First, the statute does not purport to protect all public employees. Instead, it is expressly limited to discrete categories of current and former public officials viewed by the Legislature to be at particular risk: judges, law enforcement officers, child protective investigators in the Division of Child Protection and Permanency, and prosecutors.

Second, Daniel's Law implicates only two categories of information: the covered person's home address and the covered person's unpublished home telephone number. The statute's specificity eliminates "the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication." If a person or entity receives notice in accordance with Daniel's Law, that person or entity is aware of the precise information that must be withheld from disclosure.

Third, even if an individual falls within one of the discrete categories of "covered persons," the statute imposes no liability for publishing that individual's address or phone number unless and until an authorized person expressly invokes the protection of Daniel's Law by providing the notice required …. That strict notice requirement ensures that the statute is not a trap for the unwary; to the contrary, following receipt of the statutory notice, the recipient has an opportunity to identify the specific information subject to restrictions on disclosure and take steps to maintain the confidentiality of that information. Daniel's Law substantially differs from the Florida statute struck down in Florida Star, which authorized civil damages against the newspaper with no notice or opportunity to prevent a disclosure or redisclosure of the victim's name.

Fourth, Daniel's Law is not underinclusive and thus inadequate to serve the state interest …. See Fla. Star (noting that the statute at issue prohibited publication of the protected information only in an "instrument of mass communication," thus failing to achieve the state's goal of protecting crime victims, and holding that any prohibition on publishing truthful information must be applied "evenhandedly, to the smalltime disseminator as well as the media giant"). Indeed, Daniel's Law is not focused on media in general, let alone a particular category of media …. Consistent with the Legislature's intent to protect covered persons from disclosures that may harm them, "[a]ll non-governmental entities are treated the same."

Kratovil proposes three amendments to Daniel's Law that would, in his view, achieve narrow tailoring and render the statute constitutional, and without which the statute must be struck down: (1) a provision for government "self-policing" in the form of the training and auditing of records custodians so that they do not improperly disclose information protected by Daniel's Law and the imposition of liability on custodians for negligent disclosure; (2) the adoption of an exception found in the federal analogue to Daniel's Law), for disclosures "relevant to and displayed as part of a news story, commentary, editorial or other speech on a matter of public concern"; and (3) the elimination of the statute's criminal sanctions in favor of civil penalties such as fines.

We do not share Kratovil's view that these measures are necessary to narrowly tailor Daniel's Law to achieve the state interest of the highest order that it was enacted to serve.

First, there is no evidence that records custodians in our State are untrained or unsupervised, or that the apparent error that occurred here—the custodian's disclosure of the unredacted voter profile after receiving Kratovil's e-mail—would have been prevented by further training, heightened oversight, or the threat of liability. Grafting on Daniel's Law a provision mandating training, supervision, and liability for records custodians would not constitute narrow tailoring of the statute to achieve its purpose.

Second, when it enacted Daniel's Law, the Legislature could have carved out an exception for media and other communications on matters of public concern, as Congress did in enacting the statute's federal analogue. The Legislature, however, has determined that disclosures of covered persons' home addresses and unpublished telephone numbers by any "person, business, or association"—whether or not that person or entity constitutes "media"—pose risks to the safety and privacy of law enforcement and other covered persons serving this State. We do not view the significant alteration that Kratovil advocates to provide an "effective alternative[ ]" to the statute as enacted.

Finally, we address Kratovil's contention that Daniel's Law should impose only civil penalties, not criminal liability. Given the grave threats to public officials, tragically illustrated by the murder of the young man for whom Daniel's Law is named, it was the Legislature's judgment to deter reckless and intentional disclosures of a discrete category of information by prescribing criminal penalties for such disclosures. Criminal sanctions may not be imposed absent a finding that the person disclosed the information recklessly or intentionally. If its criminal provision were eliminated, Daniel's Law would less effectively serve the state interest of the highest order it was enacted to achieve. We decline to compel such a fundamental change.

In sum, as applied to Kratovil, Daniel's Law as written is narrowly tailored to achieve the state interest of the highest order: protection of certain public officials from harm and the threat of harm so that they can perform their public duties without fear of reprisal…

For generally contrary (though not factually identical) decisions, see Publius v. Boyer-Vine (C.D. Cal. 2017),  Brayshaw v. City of Tallahassee (N.D. Fla. 2010), Sheehan v. Gregoire (W.D. Wash. 2003), and Ostergren v. Cuccinelli (4th Cir. 2010). Note also that most states and localities, apparently including New Jersey and Cape May, don't prohibit residential picketing. (Such prohibitions, if content-neutral, would be constitutional, see Frisby v. Schultz (1988), but in the absence of such a content-neutral manner restriction, residential picketing is constitutionally protected speech.) It follows then, that people must have the legal right to organize such picketing. If so, how can they go about doing that if they can be legally barred from publicizing the address at which the picketing is to occur? Or would that argument only justify some as-applied court order that provides that someone who is organizing such picketing can disclose the address, and not someone who is simply trying to concretely demonstrate that a police chief lives outside town?

Susan K. O'Connor argued for respondents; Michael L. Zuckerman argued for the N.J. Attoney General's office.

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[Josh Blackman] Today in Supreme Court History: June 19, 1992

6/19/1992: New York v. U.S. decided.

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[Eugene Volokh] Newspaper Can Be Prosecuted for Publishing Home Addresses of Police, Prosecutors, and Judges

[So the New Jersey Supreme Court unanimously held Tuesday; the decision allows civil liability as well as criminal punishment, once the government official demands that the newspaper (or anyone else) stop publishing this information.]

From the opinion in Kratovil v. City of New Brunswick:

The Legislature enacted Daniel's Law "to enhance the safety and security of certain public officials in the justice system," thereby enabling those officials to "carry out their official duties without fear of personal reprisal." Subject to strict notice requirements [under which the official must first demand that the information be removed and not published -EV], Daniel's Law prescribes a procedure by which the home address and unpublished home telephone number of a public official designated as a "covered person" can be protected from disclosure or redisclosure. Daniel's Law imposes civil liability on persons, businesses, and associations that violate the statute, and provides for criminal liability for reckless or intentional violations…

In 2023, plaintiff Charles Kratovil learned through a records request pursuant to the Open Public Records Act (OPRA), that the voting address of defendant Anthony Caputo, the New Brunswick Police Director, was in the Borough of Cape May. Kratovil began working on a story about Caputo's residence. After Kratovil disclosed Caputo's address to local officials, Caputo notified Kratovil that he was a covered person under Daniel's Law and requested that Kratovil refrain from republishing his exact home address.

The New Jersey Supreme Court upheld the statute. It cited various Supreme Court precedents, including Florida Star v. B.J.F. (1988), which held (in striking down a ban on publishing the names of rape victims):

We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense. We hold only that where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order, and that no such interest is satisfactorily served by imposing liability under [the Florida statute] … under the facts of this case….

And here's how it applied the precedents:

[1.] Our first inquiry is whether Caputo's home address is truthful information that was lawfully obtained and is of public significance…. Kratovil lawfully obtained Caputo's home address from the records custodian of the Cape May Board of Elections in response to an OPRA request…. [T]here is no indication in the record that Kratovil violated any law in his communications with the custodian.

We do not conclude that because Kratovil was permitted to write a story identifying Cape May as the municipality where Caputo lived without including his precise home address, this case does not involve a matter of public concern. In Florida Star, the Court did not frame the question to be whether the crime victim's name was itself a matter of public concern, but whether the subject of the news article was a matter of public concern. It found that the subject of the article—violent crime investigated by law enforcement—was a matter of public concern.

In the specific setting of this appeal, the contested information—Caputo's exact home address in Cape May—is related to Kratovil's proposed story suggesting that Caputo lived too far from New Brunswick to effectively discharge his public duties. The subject matter of the story—a public official's alleged failure to perform his duties because he lived hours from the community he served—is clearly a matter of public concern. We therefore hold, in the specific circumstances of this case, that Caputo's home address in Cape May relates to a matter of public concern, and modify the Appellate Division's decision with respect to that issue….

[2.] The second inquiry … is whether the challenged law "serves 'a need to further a state interest of the highest order.'" … [The Legislature] enacted Daniel's Law "to enhance the safety and security of certain public officials in the justice system, including judicial officers, law enforcement officers, child protective investigators in the Division of Child Protection and Permanency, and prosecutors, who serve or have served the people of New Jersey," and their immediate family members, "to foster the ability of these public servants who perform critical roles in the justice system to carry out their official duties without fear of personal reprisal from affected individuals related to the performance of their public functions."

In a federal challenge to Daniel's Law, the United States District Court for the District of New Jersey noted "the well-known fact, amply documented by the record [in that case], that in recent years judges, prosecutors, police, correctional officers, and others in law enforcement have been the subject of an ever increasing number of threats and even assassinations," some of which "have been facilitated by malefactors obtaining the home address or unlisted phone number of their targets." And the Attorney General's amicus submission here cited numerous sources, including a statistical report by the U.S. Marshals Service and news coverage of the recent killing of a New Jersey police officer, that underscore the persistence and severity of the problem the Legislature enacted Daniel's Law to address. New Jersey's interest in protecting public officials from such threats and thus ensuring that they may carry out their duties without fear of harm to themselves or their families is clearly a state interest of the highest order under Daily Mail and Florida Star….

[3.] Finally,… the Legislature carefully calibrated the statute to serve a state interest of the highest order by the least restrictive means.

First, the statute does not purport to protect all public employees. Instead, it is expressly limited to discrete categories of current and former public officials viewed by the Legislature to be at particular risk: judges, law enforcement officers, child protective investigators in the Division of Child Protection and Permanency, and prosecutors.

Second, Daniel's Law implicates only two categories of information: the covered person's home address and the covered person's unpublished home telephone number. The statute's specificity eliminates "the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication." If a person or entity receives notice in accordance with Daniel's Law, that person or entity is aware of the precise information that must be withheld from disclosure.

Third, even if an individual falls within one of the discrete categories of "covered persons," the statute imposes no liability for publishing that individual's address or phone number unless and until an authorized person expressly invokes the protection of Daniel's Law by providing the notice required …. That strict notice requirement ensures that the statute is not a trap for the unwary; to the contrary, following receipt of the statutory notice, the recipient has an opportunity to identify the specific information subject to restrictions on disclosure and take steps to maintain the confidentiality of that information. Daniel's Law substantially differs from the Florida statute struck down in Florida Star, which authorized civil damages against the newspaper with no notice or opportunity to prevent a disclosure or redisclosure of the victim's name.

Fourth, Daniel's Law is not underinclusive and thus inadequate to serve the state interest …. See Fla. Star (noting that the statute at issue prohibited publication of the protected information only in an "instrument of mass communication," thus failing to achieve the state's goal of protecting crime victims, and holding that any prohibition on publishing truthful information must be applied "evenhandedly, to the smalltime disseminator as well as the media giant"). Indeed, Daniel's Law is not focused on media in general, let alone a particular category of media …. Consistent with the Legislature's intent to protect covered persons from disclosures that may harm them, "[a]ll non-governmental entities are treated the same."

Kratovil proposes three amendments to Daniel's Law that would, in his view, achieve narrow tailoring and render the statute constitutional, and without which the statute must be struck down: (1) a provision for government "self-policing" in the form of the training and auditing of records custodians so that they do not improperly disclose information protected by Daniel's Law and the imposition of liability on custodians for negligent disclosure; (2) the adoption of an exception found in the federal analogue to Daniel's Law), for disclosures "relevant to and displayed as part of a news story, commentary, editorial or other speech on a matter of public concern"; and (3) the elimination of the statute's criminal sanctions in favor of civil penalties such as fines.

We do not share Kratovil's view that these measures are necessary to narrowly tailor Daniel's Law to achieve the state interest of the highest order that it was enacted to serve.

First, there is no evidence that records custodians in our State are untrained or unsupervised, or that the apparent error that occurred here—the custodian's disclosure of the unredacted voter profile after receiving Kratovil's e-mail—would have been prevented by further training, heightened oversight, or the threat of liability. Grafting on Daniel's Law a provision mandating training, supervision, and liability for records custodians would not constitute narrow tailoring of the statute to achieve its purpose.

Second, when it enacted Daniel's Law, the Legislature could have carved out an exception for media and other communications on matters of public concern, as Congress did in enacting the statute's federal analogue. The Legislature, however, has determined that disclosures of covered persons' home addresses and unpublished telephone numbers by any "person, business, or association"—whether or not that person or entity constitutes "media"—pose risks to the safety and privacy of law enforcement and other covered persons serving this State. We do not view the significant alteration that Kratovil advocates to provide an "effective alternative[ ]" to the statute as enacted.

Finally, we address Kratovil's contention that Daniel's Law should impose only civil penalties, not criminal liability. Given the grave threats to public officials, tragically illustrated by the murder of the young man for whom Daniel's Law is named, it was the Legislature's judgment to deter reckless and intentional disclosures of a discrete category of information by prescribing criminal penalties for such disclosures. Criminal sanctions may not be imposed absent a finding that the person disclosed the information recklessly or intentionally. If its criminal provision were eliminated, Daniel's Law would less effectively serve the state interest of the highest order it was enacted to achieve. We decline to compel such a fundamental change.

In sum, as applied to Kratovil, Daniel's Law as written is narrowly tailored to achieve the state interest of the highest order: protection of certain public officials from harm and the threat of harm so that they can perform their public duties without fear of reprisal…

For generally contrary (though not factually identical) decisions, see Publius v. Boyer-Vine (C.D. Cal. 2017),  Brayshaw v. City of Tallahassee (N.D. Fla. 2010), Sheehan v. Gregoire (W.D. Wash. 2003), and Ostergren v. Cuccinelli (4th Cir. 2010). Note also that most states and localities, apparently including New Jersey and Cape May, don't prohibit residential picketing. (Such prohibitions, if content-neutral, would be constitutional, see Frisby v. Schultz (1988), but in the absence of such a content-neutral manner restriction, residential picketing is constitutionally protected speech.) It follows then, that people must have the legal right to organize such picketing. If so, how can they go about doing that if they can be legally barred from publicizing the address at which the picketing is to occur? Or would that argument only justify some as-applied court order that provides that someone who is organizing such picketing can disclose the address, and not someone who is simply trying to concretely demonstrate that a police chief lives outside town?

Susan K. O'Connor argued for respondents; Michael L. Zuckerman argued for the N.J. Attoney General's office.

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[Josh Blackman] The First Meeting Of The White House Religious Liberty Commission

On Monday, the President's Religious Liberty Commission held its first public meeting. I was honored to testify on the fourth panel.

Panel 1

Mark Rienzi, President and CEO of the Becket Fund Gerard Bradley, Professor of Law at Notre Dame Law School

Panel 2

Mark David Hall, Professor in Robertson School of Government at Regent University

Remarks by Attorney General Bondi

Panel 3

Barbara Elliott, Fellow of the Dominican School of Philosophy and Theology and Assistant Professor of Liberal Arts at Houston Christian University

Panel 4

Stephanie Barclay, Professor of Law at Georgetown Law Center Josh Blackman, Professor of Law at South Texas College of Law Houston Kristen Waggoner, CEO and President of Alliance Defending Freedom

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