Eugene Volokh's Blog, page 84

[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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

[Ilya Somin] Correcting Some Media Misconceptions About Libertarianism, Trade, and Immigration

[Media coverage of our tariff case has mostly been fair and accurate. But there are a few examples of unfortunate misconceptions, mainly having to do with libertarianism and its relationship to conservatism.]

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Since last week's  victory in our tariff case before the US Court of International Trade, I have done more media interviews than in any other comparable period in my life. I have spoken to print reporters, TV, radio, podcast interviewers, and more. The interviews included ones with media in seven different countries, and three different languages. I compiled links to some of these interviews and stories based on them here, here, and here. The media frenzy did not happen because I am an important person or a great media personality (I am neither). It's because Trump's trade war impacts millions of people all over the world.

On the whole, this has been a positive experience. Most of the coverage has, in my view, been fair and accurate. In many cases, I have been very impressed by the knowledge and insight of the reporters and interviewers, including some from foreign countries.

But there have been a few cases of serious misconceptions, many of them involving libertarianism, what it is, and why libertarians would challenge a policy adopted by a right-wing administration. And these misconceptions are widespread enough (both in the media and elsewhere) to be worth taking some time to set straight. To briefly summarize: libertarians are not conservatives, no one should be surprised that we support free trade, and our concern about abuses of presidential power is not limited to trade and other narrowly "economic" issues.

Perhaps the most egregious example of media misconceptions on these points was by prominent legal commentator Elie Mystal, in an article for the left-wing Nation. Mystal agrees with me about Trump's tariffs, but complains that Reason and I don't care about "abducting immigrants and sending them to torture camps":

In the movement conservative publication Reason, law professor Ilya Somin writes: "From the very beginning, I have contended that the virtually limitless nature of the authority claimed by Trump is a key reason why courts must strike down the tariffs.… I am glad to see the CIT judges agreed with our argument on this point!" If only abducting immigrants and sending them to torture camps affected the 401Ks of the people at Reason, we could have even more conservatives who understand that the "virtually limitless nature of the authority claimed by Trump" is indeed a very bad thing.

Mystal evidently has no idea who he's dealing with! I'm the guy who wrote an entire book defending migration rights. Plus many academic articles, and numerous popular press pieces attacking Trump's Alien Enemies Act deportations (which, presumably, is what Mystal is referring to by "abducting immigrants and sending them to torture camps") and other unjust immigration policies. See, e.g., here, here, here, and here.  Just yesterday, I filed an amicus brief opposing Trump's use of the AEA. My coauthors and I wrote it on behalf of the Brennan Center, the Cato Institute, legal scholar John Dehn, and myself. Cato, as regular readers know, is a libertarian think tank. The brief was filed after Mystal's article was published. But I have a long history of other amicus briefs defending migration rights, going back to the 2018 travel ban case. Writing in defense of migration rights is one of the two or three things I am most known for. 

I am far from alone among libertarians when it comes to immigration issues, including those who write for Reason. For example, check out work of Reason's main immigration writer, Fiona Harrigan, and that of my Cato Institute colleagues, David Bier and Alex Nowrasteh. Libertarian economists (e.g. Bryan Caplan and the late Julian Simon) and political philosophers (e.g. Jason Brennan and Michael Huemer) have been among the leading defenders of migration rights in their respective fields. Not all libertarians support broad migration rights. But, on average, we are far more pro-immigration than most progressives - to say nothing of conservatives. 

And if Mystal really thinks Reason is a "movement conservative" publication, he either doesn't understand Reason, doesn't understand "movement conservatism," or both. Immigration is just one of a long list of issues on which libertarians and conservatives diverge, especially in the Trump era, where the conservative movement is increasingly dominated by "national conservatives" who favor extensive government intervention on both economic and social issues. In addition to immigration and trade, examples include the War on Drugs, many civil liberties issues, free speech, and more. For more on differences between libertarians and the Trump-era right, see my article "The Case Against Nationalism" (coauthored with Alex Nowrasteh).

Similar, though less extreme, misconceptions arose in an MSNBC interview in which the interviewer was surprised that a Cato scholar was opposing Trump's tariffs, because, she said, "Cato has been a key defender of largely Republican policies."

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As I tried to explain in response, libertarians and conservative Republicans have a long history of disagreement on many issues. Moreover, the defense of free trade has been a central libertarian priority since the origins of the movement in 18th and 19th century classical liberalism. Libertarians defending free trade is about as surprising as liberals defending Social Security or social conservatives opposing abortion. Like Mystal (though much less egregiously) the interviewer conflates libertarians and conservative Republicans.

I am grateful this other MSNBC segment highlighted my Atlantic article about the CIT tariff ruling:

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But they managed to pack three errors into less than a minute of air time: 1) describing me as one of the "conservatives" opposing Trump's tariffs, 2) suggesting I work at the Atlantic (I do not; I just write for them occasionally), and 3) referring to me as a woman.

The last two errors are understandable and ultimately unimportant (many people don't realize "Ilya" is a common Russian male name). But the conflation of libertarians and conservatives matters more. In both tariff-related media coverage and elsewhere, I see it all too often. The three examples note above are far from unique. Journalists, commentators, and others who report on law and public policy issues should learn to avoid this mistake.

The post Correcting Some Media Misconceptions About Libertarianism, Trade, and Immigration appeared first on Reason.com.

[Eugene Volokh] Come Into Litigation Warrior Pose: Ninth Circuit Strikes Down Restriction on Teaching Yoga in San Diego Shoreline Parks or Beaches

Thanks, ChatGPT!

 

From today's decision by Ninth Circuit Judge Holly Thomas, joined by Chief Judge Mary Murguia and Judge Gabriel Sanchez, in Hubbard v. City of San Diego:

The City of San Diego prohibits teaching yoga to four or more persons at any of the City's shoreline parks or beaches…. [But t]eaching yoga is protected speech. The City's prohibition on teaching yoga in shoreline parks is content based and fails strict scrutiny….

[T]he First Amendment protects teaching yoga. "An individual's right to speak is implicated when information he or she possesses is subjected to 'restraints on the way in which the information' [is] disseminated." And the First Amendment's protections for speech encompass situations where a teacher's "speech to [students] imparts a 'specific skill' or communicates advice derived from 'specialized knowledge.'" Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer (9th Cir. 2020) (quoting Holder v. Humanitarian L. Project (2010)) (discussing vocational training).

Because the Ordinance targets teaching yoga, it plainly implicates Hubbard and Baack's First Amendment right to speak. The practice and philosophy of yoga "date back thousands of years," deriving "from ancient Hindu scriptures." The practice of yoga "teaches students to attain spiritual fulfillment through control of the mind and body." A person who teaches yoga is communicating and disseminating information about this philosophy and practice through speech and expressive movements. Like vocational training classes, Hubbard's and Baack's classes aim to impart a specific skill and communicate advice derived from specialized knowledge. {Indeed, the act of teaching is protected speech even if the subject matter lacks philosophical value. "Most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' (let alone serious value), but it is still sheltered from government regulation."} …

 "[T]he First Amendment affords special protection to 'places which by long tradition or by government fiat have been devoted to assembly and debate.'" The parties do not dispute that the City's shoreline parks are traditional public forums….

"[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech." But "[c]ontent-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." …

Here, the content-based nature of the Ordinance is "obvious." The plain language of the Ordinance "defin[es] regulated speech by particular subject matter," "draw[ing] distinctions based on the message a speaker conveys." The Ordinance states that "it is unlawful … to provide any service, or to … require someone to … pay a fee before providing a service, even if characterized as a donation," and specifically identifies "yoga" as an activity that constitutes a "service." While the Ordinance excludes "expressive activity" from this prohibition, it specifically states that "[e]xpressive activity does not include … teaching yoga." This is the very definition of a content-based restriction on speech. The City, moreover, made clear at oral argument that it views and treats the Ordinance as a content-based restriction, conceding that the Ordinance permits the teaching of subjects such as tai chi and Shakespeare at shoreline parks and beaches, while the teaching of yoga is prohibited.

{The City … argues that teaching yoga "is activity that is regulated because it is commercial activity that gathers large groups of people." But the Ordinance defines yoga as a service, even if it is provided for free.}

Given the content-based nature of the Ordinance, we will uphold it only if the City meets its burden of proving that the Ordinance "furthers a compelling interest and is narrowly tailored to achieve that interest." …

The Ordinance fails this analysis. To defend its prohibition on teaching yoga, the City cites its "important governmental interests" in "protecting the enjoyment and safety of the public in the use of" its shoreline parks. The City argues that allowing Hubbard and Baack to teach yoga at shoreline parks "would lead to harmful public consequences to the City's safe and effective regulation of its parks and beaches." Although public safety is a compelling interest—and even assuming for the sake of argument that public enjoyment is as well—the City has provided no explanation as to how teaching yoga would lead to harmful consequences to these interests, or even what those consequences might be. The City therefore cannot demonstrate that its prohibition against teaching yoga is narrowly tailored to meet its interests.

The Ordinance also "fail[s] as hopelessly underinclusive." The Ordinance does not prohibit teaching various other subjects to four or more people in shoreline parks, including those that, like yoga, potentially involve physical movement. Nor does the City even attempt to explain how teaching yoga presents a greater threat to public safety and enjoyment than teaching other subjects.

The City cannot explain, moreover, why an outright ban on teaching yoga is the least restrictive means of meeting its interests. The City already has restrictions on large groups and on expressive activity that blocks the "safe flow of pedestrians or other traffic." It has also designated "expressive activity areas" within parks, which appear to address the same concerns the City raises here. Yet the City offers no explanation for why teaching yoga cannot occur in these areas….

Bryan W. Pease and Parisa Ijadi-Maghsoodi (Pease Law APC) represent plaintiffs.

The post Come Into Litigation Warrior Pose: Ninth Circuit Strikes Down Restriction on Teaching Yoga in San Diego Shoreline Parks or Beaches appeared first on Reason.com.

[Ilya Somin] Michael McConnell on the Tariff Cases and their Significance

[A leading conservative legal scholar explains why striking down Trump's IEEPA tariffs is vital to protecting the separation of powers.]

President Donald Trump signed two executive orders on April 2 instituting tariffs on a wide range of countries. ( Andrew Leyden/ZUMAPRESS/Newscom)

 

Stanford law professor, leading conservative constitutional law scholar, and former federal judge Michael McConnell has an excellent New York Times op ed on the cases challenging Trump's tariffs, and their significance. An excerpt:

Are President Trump's "Liberation Day" tariffs on, or are they off? And, more important, will legal challenges to these levies put the brakes on the seizure by presidents of both parties of ever-increasing unilateral power?

Two federal courts recently ruled that Mr. Trump lacks authority to impose them, but a specialized federal court with authority over tariff cases, the Court of Appeals for the Federal Circuit, paused the enforcement of those decisions, ordering lawyers to submit legal briefs before a hearing on Monday. One or both cases are likely to land at the Supreme Court in short order.

Understandably, most of the commentary has focused on the practical ramifications for the president's trade negotiations and the American economy. But the cases may be even more important for the future of a fundamental component of the Constitution's architecture: the separation of powers, intended by the founders to prevent any of the government's three branches from becoming all powerful.

The tariff litigation is shaping up as the biggest separation-of-powers controversy since the steel seizure case in 1952. There, President Harry Truman assumed control over the nation's steel mills to ensure the continued supply of armaments needed for the Korean War. The Supreme Court rebuffed Truman, establishing the principle that, even in an emergency, the president cannot take upon himself powers that are granted neither by the Constitution nor by congressional statute….

It is clear that the president has no inherent constitutional authority to set or change tariffs or any other taxes. That authority is expressly given to Congress in the first clause of Article I, Section 8, of the Constitution. And it is also clear that Congress has not expressly delegated any power to the president to impose tariffs on his own say-so.

The question is whether vague language in a 50-year-old statute, the International Economic Emergency Powers Act of 1977, gives the president the tariff-setting power…

The statute makes no mention of tariffs or other taxes, and before Mr. Trump, no president ever interpreted it to include such a power.

But the statute does empower the president to regulate the import of "any property in which any foreign country or a national thereof has any interest by any person." This is the language the Trump administration points to in support of his "Liberation Day" tariffs.

Is that right?

The answer to this question will reverberate far beyond the issue of tariffs, because the federal statute books abound with vaguely worded laws that, if broadly interpreted, could empower Mr. Trump and future presidents to take upon themselves extensive powers never intentionally delegated by Congress. If the courts uphold the Trump tariffs, it will be a major step toward a presidency that does whatever the president wishes to do.

I made similar and related points in my recent Atlantic article about the Court of International Trade ruling in the case against the Liberation Day tariffs filed by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs.

Prof. McConnell is coauthor of an important amicus brief filed in our case, on behalf of a bipartisan group of prominent legal scholars and former government officials. We are very grateful for his support, and that of the others who joined the brief.

The post Michael McConnell on the Tariff Cases and their Significance appeared first on Reason.com.

[David Bernstein] Should Universities Treat Discrimination against Zionists as Discrimination against Jews?

One response David L. Bernstein and I have received to our article on campus antisemitism and free speech is that we conflate antizionism with antisemitism. I think that is a misreading of our article; we discuss where University should do with regard to complaints about antisemitism without adjudicating whether the complaints are valid. We think that speech should be protected regardless of whether it is antisemitic, and disruptive, violent, harassing, and other illicit forms of protest should be punished regardless of whether it is antisemitic. So in most of the controversies that have arisen, the question of whether the speech or conduct is "really" antisemitic is not terribly relevant to our thesis.

However, the issue does arise when a student or professor is accused of illegal discrimination against Zionists. "Zionist" is an ideological position, and while university rules may prohibit ideological discrimination, and in some cases ideological discrimination at state universities may violate the First Amendment, Title VI does not prohibit discrimination against Zionists, as such.

Title VI does prohibit discrimination against Jews, and the question then arises as to whether discrimination that is claimed to be discrimination against Zionists can or should be deemed to be discrimination against Jews.

"Zionist" can sometimes serve as a proxy for "Jew." For example, when someone talks about the "Zionist-controlled media," or refers to Jewish students on campus as "Zios," or speaks of "Zionists" exaggerating the Holocaust, invoking classic antisemitism, the fact that they substitute "Zionists" for Jews does not make the statements any less antisemitic. A student who tells his friend, "I feel like punching a Zionist today" and then punches the first student he sees wearing a kippah can't get around a charge of antisemitic violence because he used the word Zionist instead of Jew.

A more complicated issue is whether Zionism is so closely connected to perceptions of Jewishness that for the purposes of antidiscrimination law discrimination against Zionists should be deemed to be discrimination against Jews.

If it were a matter of first impression, I would be inclined to say no. Banning discrimination against Jews does not ban discrimination against things that are associated with Jews.
That is not, however, how courts have treated the issue of sexual orientation discrimination. Several state courts and agencies have been confronted with the question of whether discriminating against people seeking services for same-sex weddings amounts to discrimination based on sexual orientation. To my knowledge, every court or agency that has addressed the issue has found that it does.

In other words, imagine the father of one of the two brides in an upcoming same-sex wedding tries to hire a photographer for the wedding. The father is not gay, and the photographer does not have a policy of discriminating against gay customers, and indeed did a photoshoot for the daughter a few months earlier, knowing that she was gay.

Even though the customer is not gay, and even though the photographer only objects to working on same-sex weddings for ideological reasons, courts and agencies have held that the photographer is guilty of discrimination based on sexual orientation. To the extent they have discussed the issue, the relevant judges have explained that same-sex marriage is so closely tied to gay identity that discriminating against those associated with same-sex marriage is sexual orientation discrimination. And that is true even though not all gay people desire marriage, and some are ideologically opposed to it.

Analogously, imagine a student group on campus that has a "no Zionist" policy. The group claims not to discriminate against Jews, and even has a few anti-Zionist Jewish members. Given the apparent consensus regarding same-sex marriage, it would seem that discrimination against Zionists amounts to discrimination against Jews because Zionism is so closely associated with Jews. And that would be true even though some Jews are ideologically opposed to Israel, and even though the group is admits other could prove that it admits other Jews.

It also seems inevitable that a student group that bans Zionists will discriminate against Jews in being much more likely to ask potential Jewish members if they are Zionists than to ask others. Students at encampments such as UCLA's not surprisingly singled out visible Jews, such as Jews wearing yarmulkes, to grill about their views regarding Israel before allowing them to traverse campus.

Imagine a campus group that says that they don't discriminate against gays, but only against those who favor same-sex marriage. Or a campus group in the south of the early 1970s that announced that it does not discriminate against black members, but does ban those who favor racial integration. Campus officials would have good reason to suspect that these policies would result in discrimination against gay or or black students, respectively.

So while it may seem a simple matter to separate discrimination based on ethnicity (being Jewish) from discrimination based on an ideological position ("Zionist") that the overwhelmingly majority of the group hold and that is closely associated with that group, in practice it's not nearly so clear-cut.

The post Should Universities Treat Discrimination against Zionists as Discrimination against Jews? appeared first on Reason.com.

[Eugene Volokh] Reporters Aren't Exempt from Ordinance Forbidding Presence in City Park from 10 pm to 6 am

From today's decision in State v. Bliss (N.C. Ct. App.), written by Judge Jeffery Carpenter and joined by Judges Julee Flood and Michael Stading:

Defendants were journalists for The Asheville Blade, a newspaper. The Asheville Blade is known for criticizing the Asheville Police Department's methods of clearing homeless encampments and corresponding protests. On 19 December 2021, a multi-day protest began in Aston Park …, a public park owned and operated by the City of Asheville …. Section 12-41 of the City Code (the "Park Curfew") provides that … "All public parks … shall be closed to the general public between the hours of 10:00 p.m. and 6:00 a.m." …. The purpose of the protest was to demand that the city allow "sanctuary camping" in the Park for the local homeless population….

On 25 December 2021, Defendants were at the Park….. Shortly after 10:00 p.m., officers began dismantling protestors' tents and artwork. Officers also instructed everyone in the Park, including Defendants, to vacate the Park. Officers told Defendants they could continue reporting from outside the Park. Defendants, however, did not leave the Park and around 10:30 p.m., following additional requests by officers to vacate the Park, officers arrested Defendants for second-degree trespass….

Defendants were found guilty, and sentenced to "a $100 fine plus court costs." They appealed, but the appellate court rejected their First Amendment claims:

In State v. Barber (2021), … we concluded that "the First Amendment [was] not implicated in the conduct for which [the] [d]efendant was charged." In Barber, the defendant was leading a group of fifty protestors through the North Carolina General Assembly office complex when he was arrested for trespass. The defendant, who was engaging in "call and response" chants, violated certain building rules that stated visitors of the complex "may not disturb or act in a manner that will imminently disturb the General Assembly[.]" Officers instructed defendant to stop leading the chants and leave the building. When the defendant did not leave, he was arrested for second-degree trespass….

[We] reason[ed] that because the building rules did not "speak to the nature or content of a visitor's speech" the defendant's speech was not protected. Although this conclusion was dispositive, we went on to say that even if the defendant's speech was protected, "his rights were not violated" because the building rules were "reasonable 'time, place, manner' restrictions" under the public forum doctrine…. "[T]he interior of the General Assembly is not an unlimited public forum" ….

The Park Curfew provides that "[a]ll public parks … shall be closed to the general public between the hours of 10:00 p.m. and 6:00 a.m." Thus, by its plain language, the Park Curfew regulates pure conduct, does not aim to restrict free expression, and does not place an incidental burden on free speech. As in Barber, the Park Curfew does not "speak to the nature or content of a visitor's speech." Instead, the Park Curfew simply excludes all individuals from the Park between the hours of 10:00 p.m. and 6:00 a.m. Because the Park Curfew strictly regulates conduct, not speech, Defendants' First Amendment rights were not implicated in this case.

Even assuming Defendants' speech was protected, the Park Curfew was both sufficiently justified under the O'Brien balancing test, and was a reasonable time, place, manner restriction under the public forum doctrine…

Defendants also argued that the trial court erred in not giving supplemental jury instructions in response to jury questions, but the court concluded that this argument hadn't been properly preserved at trial:

During deliberations, the jury submitted a note to the trial court stating the following, in pertinent part: "We would like clarification as to if there was an instruction on the applicability of the First Amendment" (the "First-Amendment Question") and "We would like clarification as to if we are allowed to consider the [D]efendants' status as members of the press as potential exemption from the applicable ordinance" (the "Press-Status Question"). Thereafter, outside the presence of the jury, the parties conferred regarding the jury's questions. The trial court informed the parties how it would re-instruct the jury and defense counsel did not object to the trial court's proposed instructions. Thereafter, the trial court instructed the jury as follows:

Trial court: The answer to [the First-Amendment Question] is, no, there was not such an instruction. The issue of whether or not the defendants' First Amendment constitutional rights, particularly the free speech, is a question of law that will be decided by the Court, not the jury….

Trial court: Now, as to the [Press-Status Question] … My instruction to you is, you are entitled to consider all the evidence in this case in determining the guilt or innocence of the defendants….

Defendants acknowledge they did not object when the trial court conferred with the parties about how to respond to the jury's questions. Instead, they assert the trial court, when re-instructing the jury, "substantially deviated from what it had told defense counsel it intended to say, thus depriving counsel of the opportunity to object with specificity." The trial court's instructions, however, were nearly identical to the instructional language the trial court proposed when the parties conferred. Thus, the trial court's instructions were not a substantial deviation from what was previously agreed upon and Defendants were not denied the opportunity to object with specificity. On the contrary, Defendants had ample time and opportunity to object but failed to do so….

Special Deputy Attorney General Matthew Tulchin represents the State.

The post Reporters Aren't Exempt from Ordinance Forbidding Presence in City Park from 10 pm to 6 am appeared first on Reason.com.

[Eugene Volokh] Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": A Rosy Future

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]

[I]f the discussion in Parts I and II is correct, the new technologies will change the speech market much more dramatically than we've seen so far. Today's First Amendment law evolved in a media world that had particular characteristics. A relatively few established outlets carried most of the speech that mattered. Extremist speakers had fairly little access to the public. The main news sources—TV programs and newspapers—provided a mix of ostensibly nonpartisan information about a variety of topics. The limited set of sources gave people a more or less common base of information from which to argue. These underlying characteristics are, in my view, more significant than the ones discussed in the last few paragraphs. If they change, what consequences will this have for First Amendment law?

Let me begin my answer with the good news.

Existing First Amendment doctrine is founded on some rather idealized premises. "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market." "[T]he fitting remedy for evil counsels is good ones." People who are offended by speech may "effectively avoid further bombardment of their sensibilities simply by averting their eyes."

These premises may often be true, but sometimes they simply aren't. Sometimes the supporters of a thought have millions of dollars, while opponents are too poor to compete effectively. Some markets are monopolized by one speaker, for instance a single cable system.  Good counsels from poor speakers may often not be an adequate remedy for evil ones from richer, louder speakers.  And Justice Stevens had a point: "To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow."  Unless offense is simply constitutionally irrelevant (in which case the possibility of averting one's eyes or ears shouldn't matter), once the words are heard the injury is complete.

The Court has heard these arguments. It has accepted that they may sometimes have merit. And yet it has generally—most notably in Turner Broadcasting System, Inc. v. FCC and Miami Herald v. Tornillo—refused to change the doctrine to accommodate them.  It may have been right to refuse; it might, for instance, be too dangerous to let the government intervene when it thinks it has found "market failure,"  or an inability to counterspeak, or a situation where the sting of offensive words is so great that averting one's eyes is no remedy. And even when the Court's assumptions are counterfactual, they might still be required because they represent "the theory of our Constitution" -a basic principle that government must assume to be true even when it might not be. But it remains true that the Court has based its jurisprudence on an idealized view of the world, a view that doesn't quite correspond to the world in which we live.

What I've tried to suggest above is that this idealized world-where money is no barrier to speaking; where it's easy to avert eyes from offensive speech; where there's more than one newspaper in each town, and something other than a vast wasteland on TV-is much closer to the electronic media world of the future than it is to the print and broadcast media world of the present. If my predictions are right, the new technologies will make it much easier for all ideas, whether backed by the rich or the poor, to participate in the marketplace. Even if many individuals still can't afford to counterspeak effectively, there'll be many more organizations able to speak out on all sides of an issue. And when one's radio is no longer a dumb receiver but rather a computer capable of screening out whatever the listener wants removed, a householder really will be able to "avert his eyes"—and his children's eyes—from radio profanity (or TV nudity or what have you), rather than having to wait for the first blow.

Copyright specialists are fond of suggesting that we operate in an electronic age under a copyright law created for a print age. It seems to me that during the print age, the Supreme Court created a First Amendment for the electronic age. The fictions the Court found necessary to embrace are turning, at least in part, into fact.

The post Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": A Rosy Future appeared first on Reason.com.

[Eugene Volokh] Managers May Be Liable to Fired Employee for Supposed "Unjustified Personal Vendetta"

In Bresler v. Muster, decided Thursday by the Massachusetts high court (in an opinion by Justice Serge Georges), a Massachusetts Appeals Court staff attorney (Bresler) who had been fired sued three managers—the deputy chief staff attorney (Muster), the chief staff attorney (Bowe), and the court administrator (DeRossi)—claiming the firing stemmed from their personal hostility to Bresler. The legal theory was tortious interference with advantageous relations, which under Massachusetts law requires a showing that

(1) [the plaintiff] had an advantageous relationship with a third party …; (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions.

The "improper … motive" portion of the third element has been understood as requiring "actual malice" in the sense of "a spiteful, malignant purpose, unrelated to the legitimate corporate interest." (This is not the way "actual malice" is used in libel law, where it refers to knowing or reckless falsehood.)

The court allowed Bresler's case to go forward against Muster and Bowe:

[I]t is reasonably inferable that Muster acted with a spiteful, malignant purpose unrelated to any legitimate interest of the Appeals Court—namely, to alienate Bresler from his superiors and peers out of resentment for his professional success. This improper motive is sufficiently supported by allegations that (i) other staff attorneys believed Muster was jealous of Bresler; (ii) Muster accused Bresler of attempting to "take over"; (iii) she solicited criticism of Bresler from judges and encouraged them to report those criticisms to Bowe; (iv) she ridiculed Bresler and belittled his writing to judges Bowe, DeRossi, and other staff attorneys; (v) she discouraged attendance at Bresler's seminars and failed to publicize them; (vi) a union steward reported that Muster was "brutal" in her review of Bresler's editing and subjected him to unfair scrutiny; (vii) Bresler's performance evaluations declined sharply after Muster became deputy chief staff attorney and began attending his performance meetings, supporting an inference that Muster contributed to that decline; and (viii) Muster provided at least some of the false or trivial allegations used by DeRossi as grounds for Bresler's termination. {Taken as true, Muster's alleged conduct plausibly … supports an inference of an "unjustified personal vendetta or ill will exceeding personal dislike."}

The court mentioned in passing some alleged falsehoods:

Bresler alleges that a November 2020 letter [by DeRossi] cited thirteen fabricated or exaggerated performance deficiencies—some of which were allegedly supplied by Muster…. It is reasonable to infer that Muster's broader treatment of Bresler, beyond what is documented in that letter, was consistent with those alleged instances. Such inferences, viewed in conjunction with the complaint's detailed allegations, are sufficient to support a plausible claim, especially given that actual malice need not be proved by direct evidence but may be derived from rational inferences from the facts.

But it didn't seem to understand the tort as requiring a finding of falsehood (and indeed some of these were presumably just "exaggerat[ions]" rather than "fabricat[ions]"), and Bresler's claim was not a defamation claim.

The court also added that,

[T]he allegations support an inference that Muster's conduct served no legitimate purpose of the Appeals Court. Muster's hostility toward Bresler allegedly predated her promotion and her involvement in his supervision. Her concerns and criticisms, as his peer, about his participation in writing and other seminars were not in any way within her responsibilities and provide a basis for concluding that she was motivated by personal jealousy and hostility. Also prior to Muster's promotion, Bresler had received a highly favorable performance evaluation. Only after Muster's elevation did he begin receiving negative evaluations, further supporting the inference that her actions were without basis and fueled by personal animus, not the Appeals Court's interests.

The court likewise allowed the case to go forward against Bowe:

In her initial June 2019 evaluation, Bowe praised Bresler's performance, stating that he had "so far … performed his duties … very well," received positive feedback from judges, "brought a great deal of energy and enthusiasm to the office," and was a "positive influence on staff attorney morale" who "generate[d] a professional image for the Appeals Court."

Yet, following Muster's promotion, Bresler's complaint describes a marked and troubling shift in Bowe's conduct. Specifically, Bowe (i) reneged on her promise to protect Bresler from Muster by assigning Muster to supervise his editing and allowing Muster to attend his performance meetings; (ii) issued three negative evaluations between October 2019 and June 2020—the first of which came just months after her glowing review—and falsely attributed certain mistakes to him; (iii) extended his probation for six months, the first time the Appeals Court had done so, and denied him his scheduled salary increase during that period; (iv) failed to act after being informed by the union steward that Muster was bullying Bresler and subjecting him to impossible scrutiny; (v) reversed course on her prior praise of Bresler's teaching at the Social Law Library by directing him to stop; (vi) assigned substantive work to less experienced attorneys over him; (vii) omitted numerous positive evaluations of Bresler's work from his reviews; (viii) held him to a stricter standard than others who committed similar errors; and (ix) participated in the submission of false or trivial allegations to DeRossi to justify Bresler's termination—despite knowing, at least in some instances (e.g., the computer synchronization issue), that Bresler bore no fault.

Moreover, Bowe admitted to another staff attorney that there was a "campaign" against Bresler—apparently initiated by Muster—which had "taken on a life of its own." This admission supports an inference that Bowe knowingly furthered a campaign separate and apart from any legitimate interest of the Appeals Court.

From these facts, it is reasonable to infer that Bowe's conduct was not merely negligent or misguided, but driven by actual malice. That is, when taking the allegations as true, it can be inferred that Bowe, like Muster, acted out of a spiteful, malignant purpose wholly unrelated to the court's legitimate interests. Her pattern of exaggerating performance issues, ignoring reports of harassment, reneging on protective assurances, omitting favorable evaluations, and reassigning his work to less experienced colleagues all indicate that her actions were not motivated by concerns about the "quality or usefulness" of Bresler's work, but by personal animus….

But the court threw out the claim against DeRossi:

[T]he complaint alleges that DeRossi (i) sent a letter to Bresler listing thirteen performance deficiencies provided by Bowe and Muster; (ii) failed to give Bresler an opportunity to understand or respond to those deficiencies; (iii) did not investigate the deficiency claims herself; and (iv) terminated Bresler for errors, "either knowing that some of them were false or with reckless disregard for their falsity."

The complaint does not plausibly suggest that DeRossi acted with "actual malice" as the controlling factor…. [A] supervisor's termination of an employee and failure to explain the reasons may reflect poor management but does not, without more, establish actual malice. The conduct must rise to the level of unjustified personal hostility or ill will "exceeding personal dislike." At most, the allegation that DeRossi, as the court administrator, failed to investigate the charges prepared by high-level managers suggests mismanagement, not malice….

I'm skeptical about such broad understandings of the interference with business relations tort, which allow punishment for otherwise legal behavior so long as it appears to be ill-motivated. I prefer the approach that many states have recently adopted, which requires a showing of an independent legal wrong (such as defamation, assault, etc.) for interference with business relations claims to go forward. Among other reasons, though the court stated that, "The actual malice requirement provides a measure of protection to corporate supervisors, who must necessarily make adverse employment decisions from time to time and who otherwise would be unduly exposed to the tortious interference claims of disgruntled former employees," this "measure of protection" seems limited: Many a fired employee can assert that this or that statement or action by a manager (or a coworker) bespeaks "personal jealousy and hostility."

But the Massachusetts high court obviously disagrees with me on this, and I thought the opinion was worth noting. I'm particularly interested in how this might play out with regard to politically motivated "cancellation" campaigns, whether by coworkers or by outsiders (because I'm working on an article related to that topic)—but of course this theory can also apply in many other employment contexts.

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[Eugene Volokh] 4th Cir.: Civil Service Reform Act May Have "Been So Undermined" That District Courts Should Take Over Federal Employee Lawsuits

["Because Congress intended for the Civil Service Reform Act to strip district courts of jurisdiction only if federal employees were otherwise able to receive adequate and independent review of their claims, we vacate and remand to the district court to consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls"]

An excerpt from today's long Fourth Circuit decision in Nat'l Ass'n of Immig. Judges v. Owen (Judge Nicole Berner, joined by Judges Pamela Harris and Toby Heytens):

The National Association of Immigration Judges brought this [First Amendment] challenge to an employee policy that requires immigration judges to obtain permission before speaking publicly on issues relating to immigration…. The district court dismissed the case …, concluding that the policy could only be challenged through the administrative procedures established by the Civil Service Reform Act…. When a federal employee seeks relief from an action covered by the Civil Service Reform Act, she is required to comply with the prescribed scheme of administrative and judicial review and may not generally bring an initial claim in federal court. Constitutional challenges and pre-enforcement challenges are no exception.

When the Civil Service Reform Act functions as designed, we agree with the district court that the National Association of Immigration Judges would be required to bring its case through its administrative scheme.

It is not clear, however, that the Civil Service Reform Act is currently so functioning. The Civil Service Reform Act requires a strong and independent Merit Systems Protections Board and Special Counsel. That foundational principle, that functioning and independent bodies would receive, review, and decide in the first instance challenges to adverse personnel actions affecting covered federal employees, has recently been called into question. Because Congress intended for the Civil Service Reform Act to strip district courts of jurisdiction only if federal employees were otherwise able to receive adequate and independent review of their claims, we vacate and remand to the district court to consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls….

We must answer a single question: Does the CSRA strip the district court of jurisdiction over NAIJ's pre-enforcement challenge to the Speech Policy? If so, NAIJ's members must pursue their claims through the scheme outlined in the CSRA…. [Under] Thunder Basin Coal Co. v. Reich (1994), … we look to the statute's language, structure, and purpose to assess whether Congress intended to funnel covered federal employees' claims through the CSRA's administrative scheme, stripping district courts of jurisdiction.

We conclude that this step requires further examination by the district court. The CSRA's adjudicatory scheme was predicated on the existence of a functioning and independent MSPB and Special Counsel. We take notice that the function of the MSPB and Special Counsel, contrary to the CSRA's text and purpose, has recently been called into question. The district court must address this issue in the first instance….

The Supreme Court has recognized that the CSRA, when functioning as Congress intended, was designed to strip district courts of jurisdiction…. Those cases would have, until recently, made our analysis at step one of the Thunder Basin test simple. It has been well-established that Congress's intent for the CSRA to preclude district court jurisdiction is "fairly discernible in the statutory scheme." That conclusion can only be true, however, when the statute functions as Congress intended. During the pendency of this case, whether the CSRA functions as Congress intended has been called into question.

To maintain Congress' intent, the MSPB and Special Counsel must function such that they fulfill their roles prescribed by the CSRA…. [But] during the pendency of this case, the President removed the Special Counsel, and two members of the MSPB such that it currently lacks a quorum. These removals and the lack of quorum in the MSPB raise serious questions as to whether the CSRA's adjudicatory scheme continues to function as intended. Such a question, which turns on a factual record, is best addressed by the district court in the first instance. We therefore remand to the district court to assess the functionality of the CSRA's adjudicatory scheme.

In addition to providing a functioning adjudicatory process, the CSRA was designed to protect the independence of the agencies reviewing federal employees' claims…. The MSPB was hailed as "the Cornerstone of Civil Service Reform." In order to carry out its role of preserving the merit system for all federal employees, Congress recognized that the MSPB must be "insulated from the kind of political pressures that [had] led to violations of merit principles in the past." Congress explained that "absent such a mandate for independence for the merit board, it is unlikely that [it] would have granted the Office of Personnel Management the power it has or the latitude to delegate personnel authority to the agencies."

The CSRA established the same independence for the Special Counsel, who it tasked to "investigate and prosecute political abuses and merit system violations," and "safeguard the rights" of employees who "'blow the whistle' on violations of laws." …

Congress left little doubt about the importance of an independent MSPB and Special Counsel free from "any control or direction by the President." The MSPB and the Special Counsel "exercise statutory responsibilities independent of any Presidential directives." For this reason, the CSRA mandates that the members of the MSPB and the Special Counsel can be removed by the President "only for inefficiency, neglect of duty, or malfeasance in office." …

Put simply, Congress enacted the CSRA on the bedrock principle that the members of the MSPB and the Special Counsel would be protected from removal on political grounds, providing them independence from the President…. [But] in lawsuits challenging the removals of the Special Counsel and members of the MSPB, the Government has argued that the removal protections enshrined in the CSRA are violations of separation of powers, thereby calling into question the constitutionality of a critical aspect of the CSRA, and the continued vitality of the statute's adjudicatory scheme. This issue has yet to be resolved, however. At present, reinstatement of the MSPB Board members has been stayed by the Supreme Court. Trump v. Wilcox (2025).

The resolution of this issue could also call into question whether the CSRA continues to function as Congress intended for purposes of the Thunder Basin analysis. As described above, Congress may well have intended the CSRA to strip district courts of jurisdiction only because it understood that the President could not exercise unfettered control over the Special Counsel and MSPB. If that understanding proves to be incorrect, then a reevaluation of Congress's intent under Thunder Basin may be required. We leave that issue, should it arise, to the district court to address in the first instance.

At the time the district court considered its jurisdiction over this matter, the functionality and independence of the MSPB and Special Counsel had not been called into question. This is no longer necessarily true…. Accordingly, we remand to the district court to conduct a factual inquiry whether the CSRA continues to provide a functional adjudicatory scheme….

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[Eugene Volokh] Does the Smoot-Hawley Act Justify the Trump Tariffs? No, Says Philip Zelikow

My Hoover Institution colleague Philip Zelikow was kind enough to pass this along; he is an emeritus history professor at the University of Virginia, but also a lawyer:

On June 1, Yale's Jed Rubenfeld published an essay on The Free Press criticizing the recent legal ruling on Trump's tariffs. "The Judges Got It Wrong: Trump's Tariffs Are Legal." The subtitle adds: "The words of a 100-year-old law are clear, says Jed Rubenfeld. So why didn't Trump's lawyers mention it?" Professor Rubenfeld is referring to broad empowering language in a section of the infamous Smoot-Hawley act of 1930 that allowed a president to impose tariffs of up to 50% on countries that burdened U.S. commerce.

There is a straightforward answer to the question of why Trump's lawyers didn't mention this. Well, no one cites it because this part of Smoot-Hawley was superseded long ago. The issue has never been litigated because this section has never been used to impose a tariff. The office of the U.S. Trade Representative presumably knows this.

Professor Rubenfeld had staked out a position on the legality of the tariffs right away, on April 7 (also on The Free Press), arguing that the tariffs were probably legal. He now wishes to offer this argument for why he wasn't mistaken in that initial judgment.

The legal standard for a superseding statute (also called 'implied repeal') is well known. There are two situations. The first is "irreconcilable conflict." The second situation, as the Supreme Court explained in Posadas v. National City Bank, 296 U.S. 497 (1936), is "if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act." 296 U.S. at 503.

The original Smoot-Hawley language that Rubenfeld cites was in section 338(d) of the Tariff Act of 1930 [19 U.S.C. §1338(d)], which granted the President this broad tariff power if a foreign country "places any burden or disadvantage upon the commerce of the United States." Similar language had been used in the Fordney-McCumber tariff act of 1922.

This particular section was effectively repealed and superseded by section 252 of the Trade Expansion Act of 1962. (One can quibble about the effect of the 1934 Reciprocal Trade Act, but no need.)

Section 252 laid out what the President could do if a foreign country took various actions to "oppress the commerce" of the US (252(a)), or "burden United States commerce" either with nontariff barriers (section 252(b)) or "burden United States commerce" with import restrictions (section 252(c)). Applying the Posadas standard, section 252 covered "the whole subject" of section 338(d) of Smoot-Hawley and was "clearly intended as a substitute," and so it thus operated "similarly as a repeal of the earlier act."

Section 252 of the 1962 Act was itself then effectively repealed and superseded by section 301 of the landmark Trade Act of 1974. That section covers, in great detail, what the executive branch may do if "an act, policy, or practice of a foreign country … is unjustifiable and burdens or restricts United States commerce."

Section 301 covered "the whole subject" of section 252 of the 1962 act and was also "clearly intended as a substitute" for it. Those details were refined in further acts of Congress passed in 1979, 1984, and 1988. The 1988 amendments, adopted during the last great surge of protectionism before this one, added what are known as the 'Super 301' authorities.

An argument that section 338(d) of Smoot-Hawley is still alive and well, would have made section 252 of the 1962 Act a nullity, just as it would make section 301 of the 1974 Act a nullity. By contrast, section 232 of the 1962 Act was not effectively replaced in the 1974 act. It is the section that provides the alternative "national security" basis that President Trump has used for certain sectoral tariffs, such as those on steel and aluminum.

Section 338(d) of Smoot-Hawley is long dead, at least since 1962. It never received a ceremonial burial. But, to repeat, the reason that no court ever had to formally entomb this section of Smoot-Hawley is because no president ever used it to impose a tariff.

I hope to have more on this topic in the future.

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