Eugene Volokh's Blog, page 73

[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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[Jonathan H. Adler] Supreme Court Rejects Constitutional Challenge to State Limits on Sex Transition Treatments for Minors

[The Court's majority avoids the larger question of whether laws targeting transgender individuals should be subject to heightened scrutiny, but Justice Barrett did not.]

The Supreme Court issued five opinions today, most notably its decision in United States v. Skrmetti, rejecting a constitutional challenge to a Tennessee law prohibiting certain medical treatments for gender dysphoria for minors (e.g. puberty blockers and hormones).

The decision produced 112 pages of opinions. Chief Justice Roberts wrote for a 6-3 Court. Justice Alito concurred in part and concurred in the judgment. Justice Thomas and Justice Barrett each wrote separate concurrences (the latter of which Justice Thomas also joined). Justice Sotomayor wrote the principal dissent, joined by Justice Jackson in full and Justice Kagan in part. Justice Kagan also wrote a separate dissent.

Writing for the Court, Chief Justice Roberts concluded that the Tennessee law did not target transgender individuals as a class. Accordingly, his opinion did not reach the question of whether a law that did target transgender individuals is subject to heightened scrutiny. With heightened scrutiny off the table, the Court applied rational basis review, which the Tennessee law easily satisfied.

Justice Sotomayor's dissent disagreed with the majority across the board, concluding that the law did target transgender individuals, should be subject to heightened scrutiny, and failed heightened scrutiny. Interestingly enough, Justice Kagan agreed with the first two parts of the dissent, but did not think the Court should reach the third question. Rather, Justice Kagan urged, the lower court should have been given the opportunity to apply heightened scrutiny in the first instance.

Justice Alito only concurred in the judgment because he concluded, like Justice Sotomayor, that the law should be understood as one targeting transgender individuals, but he concluded that heightened scrutiny was not required and agreed with the majority that the law satisfied rational basis.

Writing separately, Justice Barrett argued that even if the Tennessee law were interpreted to target transgender individuals, it should not be subject to heightened scrutiny because transgender individuals should not be considered a suspect class. In short: "The Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status. Rational-basis review applies, which means that courts must give legislatures flexibility to make policy in this area." In this she was joined by Justice Thomas.

Justice Barrett's concurrence in Skrmetti (as well as her dissent in Perttu, rejecting the Court's expansion of jury trial rights under the PLRA) are interesting to note given recent claims that she has "drifted" to the left, or was never a particularly conservative justice.

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[Josh Blackman] Predictions For The Remaining 15 Cases

[Barring any surprises, I do not expect any surprises. ]

Today the Court decided five new cases, including the blockbuster Skrmetti decision. I will have much more to say about that case in due course. For now, I will note that last night I concluded my post on Justice Barrett with this line:

There is always hope for tomorrow.

Indeed, tomorrow--that is today--brought hope! I try to be open-minded, and will treat each decision on its own terms. Based on my quick skim, there is a lot to be hopeful about.

Now, for predictions.

Based on my count, there are fifteen outstanding decisions. (Please email me if I've made any errors.)

All of the cases have been decided from the October, November, and December sittings.

In the January sitting, eleven cases were argued, and one was decided Per Curiam (remember TikTok?). There are five cases not yet decided: Hewitt, Stanley, Free Speech Coalition, McLaughlin, and R.J. Reynolds. Five Justices have not yet written: Thomas, Gorsuch, Kavanaugh, Barrett, and Jackson. I don't have any strong feelings about the assignments. I think that Free Speech Coalition will go to a Justice who raised kids in the digital age: either Kavanaugh, Barrett, or Jackson.

In the February sitting, eight cases were argued. Two remain outstanding: Gutierrez and Esteras. Justices Sotomayor, Gorsuch, and Barrett have not yet written for that sitting. Barrett probably has Gutierrez, a case about jurisdiction. Sotomayor, the former district court judge, probably has Esteras, a sentencing case.

In the March sitting, nine cases were argued. Four cases remain outstanding: Louisiana  v. Callais, Riley v. Bondi, FCC v. Consumers' Research, Fuld v. PLO, and Medina v. Planned Parenthood. Justice Thomas was assigned two EPA cases from this sitting, so he is done. That means one Justice likely does not have an assignment. Who has not yet written: Roberts, Alito, Kagan, Gorsuch, Kavanaugh, Barrett. I think the Chief will keep the Planned Parenthood case for himself. I think Alito has Callais, the Voting Rights case. I think Roberts assigned Consumers' Research to either Gorsuch or Kavanaugh, as they both have interest in delegation. Barrett has Riley, a nerdy jurisdictional case. And I think Kagan has the PLO case, which involves the Due Process Clause of the Fifth Amendment.

In the April sitting, ten cases were argued, and two were dismissed PC. Three remain outstanding: Kennedy v. Braidwood, Mahmoud, and Diamond Alternative Energy. Four justices have not yet written from April: Alito, Kagan, Kavanaugh, Jackson. I can see Roberts giving Justice Kagan Braidwood, after all of her bitter Appointments Clause dissents. She will have the satisfaction of reversing the Fifth Circuit. I hope Alito has Mahmoud, but Roberts could let Jackson write something narrow and harmless. Whoever didn't get Braidwood or Mahmoud will draw the short straw with Diamond.

The rest of the term seems fairly predictable. Barring any surprises, I do not expect any surprises.

Of course, my predictions are usually wrong, so please discount everything I wrote.

The post Predictions For The Remaining 15 Cases appeared first on Reason.com.

[Eugene Volokh] Court Upholds Tennessee Restriction on Youth Gender Medicine

Off to a conference today, so I can't write about it in detail but the Court's syllabus on p. 1-5 seems to summarize the opinion (U.S. v. Skrmetti) well.

Here's one particularly interesting passage I noticed, from Justice Thomas's concurrence:

The Court rightly rejects efforts by the United States and the private plaintiffs to accord outsized credit to claims about medical consensus and expertise. The United States asserted that "the medical community and the nation's leading hospitals overwhelmingly agree" with the Government's position that the treatments outlawed by SB1 can be medically necessary. Brief for United States 35; see also Brief for Respondents in Support of Petitioner 5 (asserting that "[e]very major medical association in the United States" supports this position). The implication of these arguments is that courts should defer to so-called expert consensus.

There are several problems with appealing and deferring to the authority of the expert class. First, so-called experts have no license to countermand the "wisdom, fairness, or logic of legislative choices." FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). Second, contrary to the representations of the United States and the private plaintiffs, there is no medical consensus on how best to treat gender dysphoria in children. Third, notwithstanding the alleged experts' view that young children can provide informed consent to irreversible sex-transition treatments, whether such consent is possible is a question of medical ethics that States must decide for themselves. Fourth, there are particularly good reasons to question the expert class here, as recent revelations suggest that leading voices in this area have relied on questionable evidence, and have allowed ideology to influence their medical guidance.

Taken together, this case serves as a useful reminder that the American people and their representatives are entitled to disagree with those who hold themselves out as experts, and that courts may not "sit as a super-legislature to weigh the wisdom of legislation." Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952). By correctly concluding that SB1 warrants the "paradigm of judicial restraint," Beach Communications, 508 U. S., at 314, the Court reserves to the people of Tennessee the right to decide for themselves.

Obviously, there's vastly more to the case, and even to Justice Thomas's opinion, than that: For instance, expert opinions may be relevant when constitutional rules do require the Court to determine whether, say, a law is narrowly tailored to a compelling government interest; Justice Thomas argues elsewhere in the opinion, as does the majority that he joins, that this test doesn't apply here. Still, the paragraphs I quoted above strike me as offering a helpful perspective into Justice Thomas's thinking, and perhaps that of some others as well.

The post Court Upholds Tennessee Restriction on Youth Gender Medicine appeared first on Reason.com.

[Eugene Volokh] Guest-Posting on Today's SCOTUSBlog Live Blog of New S. Ct. Opinions

[I'm much looking forward to it!]

You can see the live blog at https://www.scotusblog.com/; the opinions will start coming down shortly after 10 am Eastern, but I'll be on for a pre-opinion conversation at 9:30 am. I have no idea what opinions will come down today, of course, but it should be interesting.

The post Guest-Posting on Today's SCOTUSBlog Live Blog of New S. Ct. Opinions appeared first on Reason.com.