PrawfsBlawg

Rule of Four

We have been playing a weekly online pub trivia game. One of the questions this week asked how many votes were needed for SCOTUS to take a case (the formal question was whether it was more than, less than, or equal to four). 46 % got it right. I am trying to decide whether that is more or less than I should have expected.

Law prof letter on constitutional-litigation reform

As I mentioned, A law professor letter is circulating in support of the one-two punch of eliminating qualified immunity and overriding Monell  to make municipalities liable on respondeat superior. The letter is here. Signatures close at 3 p.m. EDT (Noon PDT) today, for those who have not signed but wish to do so.

Kennesaw Mountain Landis and the Monument Moment (Updated)

Northwestern-Pritzker School of Law (where, full disclosure, I attended law school) displays a portrait of Kennesaw Mountain Landis, a Northwestern grad, former federal judge, and, of course, long-serving first baseball commissioner. As monuments began falling and law schools contemplated their anti-racist steps, I wondered whether that portrait would come down. Now come reports that a move is afoot among former baseball MVPs (black and white) to have Landis' name and image removed from those awards. Update: The Baseball Writers' Association of America (BBWAA), which presents, the MVP awards, announced they will discuss the issue.

The standard history is that Landis actively opposed integration in his 20+ years as commissioner, during which no team signed an African-American player (Landis died in 1944; Jackie Robinson signed with the Dodgers in 1946 and made his MLB debut on April 15, 1947). That is the story Robinson told and was reflected in the authoritative Robinson biography and in a 2016 Ken Burns documentary about Robinson. MLB historian John Thorn presents that history as canon in the above-linked articles, describing Landis as "pretty damn near Confederate" with a history of documented racism.

That standard view had been questioned over the past two decades, through an award-winning 1998 Landis biography and a 2009 article in SABR's Baseball Research Journal. Neither study found evidence of Landis saying or doing anything racist, holding racist views (at least relative to the times), or preventing or even dissuading owners from signing African-American players. Landis made two public statements--in 1942 and 1943--that MLB had no formal or informal rule prohibiting signing African-American players and that he did not and would not oppose any owners who signed an African-American player. MLB owners and executives maintained segregation, not Landis. Landis did not advocate integration, as opposed to announcing a lack of opposition, and it does not appear that he attempted to force, cajole, lobby, or convince owners to integrate. (Whether he could have done so and whether his failure to do so destroys his legacy depends on whether Landis enjoyed unique commissioner powers or whether, like other commissioners, he worked for the owners).

I do not know whether the counter-narrative has been discredited as erroneous. The linked stories quote Thorn, but do not mention the counter or acknowledge that historical sources disagree, although this one does. I have not seen interviews with Landis' biographer or other critics on the subject.

But it may not matter. Part of the current reckoning is that silence in the face of racism is a form of action perpetuating that racism. Sitting by not only does not promote progress, it adds to the problem. By placing the onus on the owners to sign African-American players knowing they would not, the argument goes, Landis ensured that segregation endured. And thus he loses any claim to a continued place of honor in the game of baseball (or on the walls of a law school).

Is that how it should be? That seems to be the point that MLB and NUPLS must resolve with Landis.

How to become a legal writing professor

The new addition to the Baude/Chilton series on how to become a law professor comes from Rachel Gurvich (UNC) and Beth Wilensky (Michigan).

Third Circuit: Tinker does not apply off-campus

The Third Circuit held Tuesday that Mahanoy (PA) Area H.S.* violated the First Amendment by suspending a student (identified as B.L.) from the J.V. cheerleading squad for a snap showing the girl and her friends flipping the bird above the caption "Fuck Cheer." This is a great First Amendment decision.

[*] My wife's grandmother grew up in Mahanoy, which is why I bother to mention it.

The majority hit several important things.

    • The speech was off-campus. The student created the snap off-campus, on a weekend, on a non-school platform, and the fact that the comments were about the school or school personnel did not change its nature.

    • The First Amendment does not apply differently to extra-curricular activities or to students who participate in extra-curricular activities (unlike the Fourth Amendment or Due Process). Suspension from an extra-curricular activity (the punishment the school imposed) is not a lesser punishment subject to less-rigorous First Amendment scrutiny. Student-athletes are not subject to punishment for off-campus vulgarity to a greater extent than non-athletes would be.

    • Tinker does not apply to off-campus speech. This is huge, as this is the first court of appeals squarely to hold. Tinker is a "narrow accommodation" of the unique context of school, but makes little sense outside that context. School officials can control the spillover effects that make their way into school. But that has been true of off-campus real-world speech, so should be true of on-campus online speech. And while this leaves schools unable to regulate some crude, vulgar, or offensive speech, that is the point of the First Amendment, as Tinker recognized.

    • Outside of school and online, students have virtually full First Amendment rights, including to use profanity, which cannot be dismissed as "low value" or as expressing no message. "Fuck cheer," uttered by a frustrated high-school sophomore, has a meaning.

    • The student did not waive her First Amendment claims by agreeing to be subject to certain codes of student-athlete conduct.

The majority expressly does not resolve off-campus speech threatening violence or harassing particular students or teachers. Some such speech may be unprotected and subject to sanction and the school may have a sufficiently weighty interest in regulating that speech. The question of Tinker's applicability caused Judge Ambro to concur in the judgment. insisting there was no need to address the issue because the speech was obviously protected even under Tinker. Ambro is concerned about a broader swath of off-campus speech, such as  racially tinged speech or snaps reenacting and mocking victims of police violence.

The case does suggest that "Tinker" as a standard is different from the public school's regulatory authority. That is, the inapplicability of Tinker to off-campus speech does not divest a school of all authority to regulate that speech, leaving any sanction to government at large. The suggestion is that a public school has authority to sanction students for off-campus expression, but it must satisfy a different, more rigorous standard (strict scrutiny or a showing that the speech falls into an unprotected category). So perhaps a school could sanction a student for out-of-school true threats, rather than leaving it to the police and the courts. Perhaps a school could punish a student for out-of-school (constitutionally protected) racist speech, claiming a compelling interest in teaching racial justice or maintaining racial peace within the schoolhouse gates that society at large cannot claim. I have presumed that schools should have no power to regulate speech off-campus, that a student becomes an ordinary person outside of school. While affirming broad student rights, this opinion suggests otherwise.

And if that is true, what does it mean for universities, who generally are not governed by Tinker? Can a university claim a compelling interest in campus racial peace that might give it more power than society at large to sanction racist-but-protected speech?

Finally, an empirical question that I have not researched but that I would be curious if anyone knows the answer. The Third Circuit in the past half-decade has broadly protected student speech in several significant case, a seeming departure from the late-'90s/early-oo's, when schools routinely won cases involving online speech and t-shirts. Is the Third Circuit an outlier or have other courts come around?

Assignments and female voices

Someone pointed out that June Medical produced six opinions on the right to reproductive freedom, all by male Justices and none by any female Justice. But who is responsible for that?

The first question is who assigned the majority to Breyer. Assignment is by the senior-most Justice in the majority for a judgment/outcome at conference; that means the Chief assigned the opinion to Breyer, then declined to join and wrote on his own, leaving Breyer to write a plurality. But how specific do they get during the conference? Could it be clear at conference that his reasoning was so far from Ginsburg/Breyer/Sotomayor/Kagan that he was not part of that group? For example, suppose G/B/S/K made clear the view that the Louisiana law was broadly invalid while Roberts made clear that he was going along with Whole Women's purely on stare decisis grounds. How does that affect the assignment? This would have made Ginsburg senior-most, meaning she assigned the opinion to Breyer rather than keeping it or giving it to one of her female colleagues.

All three also chose not to write a separate opinion, I presume to maintain a clear plurality (if not majority) voice. Even at the loss of a female voice.

More on constitutional-litigation reform (Updated)

A law professor letter is circulating in support of the one-two punch of eliminating qualified immunity and overriding Monell  to make municipalities liable on respondeat superior. The move towards respondeat superior liability is in the Reforming Qualified Immunity Act, introduced by Sen. Mike Braun (R-IN).  The letter is here, for those interested in signing.*

[*] I signed the letter, as it involves an issue on which I know something as a legal scholar, as opposed to as a citizen with a law degree.

Braun's bill also would revise, but not eliminate qualified immunity. He replaces it with a narrower immunity that protects an officer if he acts in good faith and either acted pursuant to a statute or regulation that had not been declared invalid or the conduct had not been declared invalid. In essence, the change to immunity flips the default--an officer is not immune if the law is uncertain, but becomes immune if the law is certain that his conduct is valid.

Full reform still requires two more steps. Section 1983 must be extended to states, which Congress can do by making clear that states are persons for § 1983 purposes. Otherwise, state police and sheriff's officers will be beyond these reforms, since they are not local officers. And something has to be done to codify the Bivens cause of action, otherwise federal officers will be beyond these reforms.

Update: A reader emails to offer another way to limit the effects of qualified immunity--overruling or overriding Mitchell v. Forsyth and eliminating collateral-order review of Q/I denials, which places Q/I at the heart of the case and moves cases quickly into the court of appeals and SCOTUS. Eliminating immediate review (or requiring judicial leave under § 1292(b)) would combine well with Braun's approach. I have not seen this as part of any proposals.

So you want to be a law professor? (Updated and moved to top)

At Summary, Judgment, Will Baude and Adam Chilton have a conversation on law teaching and advising people who want to enter law teaching. The conversation is inspired by Jason Brennan's Good Work If You Can Get It: How to Succeed in Academia, applied to the unique species of the legal academy. The first posts (in order of posting, rather than order they appear on the blog) are here, here, here, and here.

Update: The topic produced a number of posts, including one guest post on becoming a clinic professor. The remaining posts (in order on the blog) are: here, here (this one is for everyone, not only budding prawfs), here, here, and here.

Anti-racism and the First Amendment

Jaden McNeil is a student at Kansas State and the head of America First Students, an organization that believes Turning Point USA is too liberal. Yesterday, McNeil sent a tweet congratulating George Floyd on being drug-free for a month. The tweet drew responses and condemnation from several K-State football players, followed by further condemnation from the head coach, athletic director, and university president. Several players called on the university to do something to "handle" this, while another promised not to play for the school if it "tolerates ignorance such as this." The university president promised to review its "options."

But there do not seem to be any options for a public university to handle this. McNeil is an asshole and deserves (but probably does not care about) public opprobrium, but his tweet does not seem to fall within any unprotected category of expression. Universities are in a bind. They can develop anti-racism in their curricula and institutional activities, they can counter-speak to racist messages (as they have done), and they can adopt and promote anti-racist messages. But under current doctrine, they cannot stop individual students from being racist and from saying racist stuff in public spaces. And they cannot design codes of conduct and anti-discrimination policies that can stop individual students from being racist and saying racist stuff. Athletes are developing their voices and discovering their leverage, which is a good thing and a long time coming. But that leverage and the university's desire to field a football team cannot compel the university to ignore the First Amendment.

Like the 1960s, this period of protest and change could be remembered as much for the First Amendment activities and developments as for Fourteenth or Fourth Amendment developments (ideally all three). But that is a two-edged sword--the First Amendment may impose a barrier to some of the broadest intellectual goals of anti-racism and the broadest desires of those who want to stop racism. Unless the pressure of this moment compels a change in free speech doctrine, which seems unlikely and would be unfortunate.

Mootness, departmentalism, and universality

Here is an interesting mootness decision from the Third Circuit (written by Judge Bibas). A lot of good discussion of mootness, as it relates to my current interests in universality and departmentalism. I am not sure I agree with the conclusion, but the opinion is a great read.

The action is a challenge by a group of public-school teachers to Pennsylvania's agency-fee statute. While the action was pending, SCOTUS held in Janus that agency-fee schemes violate the First Amendment. The state and the union told school districts and other public employees to stop deducting fees and to refund fees collected to cover expenses from Janus forward. Although the state agency-fee law remains on the books and agency-fee provisions remain in the contracts, the union insists it has no intention to enforce either in the future. The district court held the case moot and the court of appeals affirmed.

• Bibas tweaks the common description of mootness as "standing set in a time frame," because they are not co-extensive. A plaintiff must show standing at the outset, but it is on the defendant (or someone else) to show mootness once the action has begun. Thus, under new circumstances, while the plaintiff might be unable to establish standing , that does not mean the defendant can establish mootness. As he puts it, "sometimes a suit filed on Monday will be able to proceed even if, because of a development on Tuesday, the suit would have been dismissed for lack of standing if it had been filed on Wednesday. The Tuesday development does not necessarily moot the suit." I am going to use that framing in class.

• He recasts "voluntary cessation" as "volitional cessation." Often, especially in constitutional cases, the government defendant continues to insist on the validity of its actions, even while agreeing to abide by an injunction or precedent knowing that the courts will rule against it. In other words, the cessation is not voluntary, because the government believes he can do something and should be able to do something, if not for some pesky hindrance (such as a court order). The issue is whether government can reasonably be expected to engage in the challenged behavior in the future. So the issue is not whether the cessation is voluntary but whether it is volitional, a deliberate act, regardless of its cause.

• The reasons for cessation are probative of the likelihood of re-engagement in the behavior. The court is more skeptical of a defendant who continues to insist on the validity of the conduct but yields in the face of a court order, while more forgiving of a defendant who yields to new precedent established in a different case. From a judicial-departmentalist standpoint, this gets it backwards. A defendant cannot ignore a court order in the instant case (without immediate consequence) even if it believes the basis for the order incorrect; that case should be moot because the defendant will not re-engage on pain of contempt. A defendant can ignore precedent from another case without immediate consequence, so a promise to abide by precedent should not moot the new case. I made this argument in using judicial departmentalism to justify voluntary cessation as a limit on mootness.

Moreover, if we accept particularity/non-universality as the norm for injunctions, there is no distinction between those situations. If the injunction binds the government only as to the plaintiff, then all future enforcement that is or is not likely to occur is in response to precedent rather than to a court order. There is no difference between Chicago promising not to enforce its law against Y following an injunction barring Chicago from enforcing against X and Chicago promising not to enforce its law against Y following a decision ordering Milwaukee not to enforce its identical law against M.

• Nonetheless, the court found this case moot. The unions conceded the invalidity of agency-fee requirements and forswore collecting fees and there was no indication they will not continue to abide by that position. That agency-fee provisions remain on the books and in the CBAs did not matter and did not create any  injury that a court could redress absent some indicia of intent to enforce.

The plaintiffs tried to avoid mootness by pointing to challenges to campaign-finance laws found not moot following Citizens United and challenges to marriage laws found not moot following Obergefell. The former was a complex decision targeting one campaign-finance provision, uncertain in its application to other laws and provisions. The latter did not address the incidents of marriage challenged in the other cases. Janus was simple--no agency fees allowed--and the case presented no additional issues not covered by Janus.

I think that is a cramped reading of the marriage case.The Eighth Circuit highlighted that Obergefell dealt with laws in states other than Nebraska (thus did not bind Nebraska in any way) and that the ban on same-sex marriage remained in the Nebraska constitution. The court understood, if implicitly, that there remained something for Nebraska to enforce and nothing, other than the state's voluntary (or volitional) acquiescence to stop that enforcement.

Perhaps the analysis is different when it is a private actor, such as the union, rather than a government with departmentalist powers. Others have argued that courts are too-quick to accept government representations of non-enforcement and moot cases. If so, this case gets the balance right--this case is moot based on the union's promise where it might not be moot if the government were making the same promises. Of course, perhaps that distinction collapses when the defendant arguably acts under color, as the unions likely do under these agreements.

• The plaintiffs argued that a live controversy remained based on their request for a declaratory judgment that Pennsylvania's statute is constitutionally invalid. But the union did not intend to enforce the law. And because the constitutional violation is the threat of enforcement rather than the existence of the law (or contract provision), the plaintiffs' rights were not violated and they had "nothing to fear."

The court captures this with a nice civics lesson:

It may seem odd that unconstitutional laws remain on the books. But until a party faces a real threat of enforcement, a statute is mere words on a page.

I like that framing (and added it to a current paper). We can go further: If this were not true, no constitutional action would become moot because no law declared constitutionally invalid disappears without further legislative action, so the threat of departmental enforcement remains.

Meat Market cancelled, alternative hiring conversations

AALS canceled the Faculty Recruitment Conference out of concerns for COVID, although it will serve as information clearinghouse for candidates, including running the Faculty Appointments Registry, for schools that will run a hiring process remotely. (Brian Leiter wrote about changes making the FAR form more candidate-friendly).

Latisha Nixon-Jones, a VAP at Oregon, is starting a listserv for VAPs/Fellows to share information about the upcoming hiring season. Candidates interested in joining the listserv can complete this survey by June 30.

We will have our usual assortment of hiring-related posts and perhaps we can rerun some of our greatest hits. Although query how well advice about doing a good job talk translates to doing a good job talk via Zoom.

They didn't vote for you, they voted against the other guy

Republicans in and out of government have attacked the legitimacy of the last two Democratic presidents. To be clear, in talking about "legitimacy," I do not mean simple policy disagreements and opposition to proposals. I mean a rhetoric of "you do not legitimately hold the office or wield the legal authority; that is why you should not be able to appoint your preferred judges or executive officials and why your policies should not be enacted."

For Clinton, it was that he never won a majority of the popular vote (ironic, given how Bush II and Trump governed in their respective first terms despite losing the popular vote). For Obama, it was that he was never eligible for the presidency because he was not born in the United States, plus he was pushing an un-American agenda.

What will it be if Biden becomes president? Trump is obviously trying to lay the groundwork for claims of election fraud, although I do not believe that will stick for long, at least outside the fringe. I think it will be something along these lines:

The People did not vote for you, they voted against Donald Trump. You did not really win the presidency, the other guy lost it. So you do not legitimately wield presidential authority. Had you run against someone who was not so wildly unpopular (who we, of course, now disavow all connection to), you would not be President. So you lack the full legitimacy necessary to exercise the full powers of the office.

I am thinking of this after reading this Jonathan Chait piece arguing that Biden is doing a lot right in his low-key campaign. The reality is that the polls reflect at least some number of people supporting "Not Trump" (or "Any Functioning Adult," as my neighbor's law sign says) and translating that into reporting support for Biden in polls. This is not uncommon--some piece of Trump's support was "Not Hillary." But I can see it being weaponized for the next four years.

Mandamus issues in Flynn prosecution (Updated)

A divided D.C. Circuit panel granted Michael Flynn mandamus and ordered Judge Sullivan to remove the appointed amicus and to grant the government's uncontested motion to dismiss the charges. This is a brutal decision that leaves little meaning to the "leave of court" language in FRCrP 48(a), turns a presumption of regularity of prosecutorial decisions into a mandatory conclusion by precluding any inquiry into those decisions, and grants mandamus relief before the district court has had an opportunity to decide the motion or to do anything that might so imperil anyone's rights or interests. Mandamus is a weird duck, with judges reciting the high standard for granting, then finding that standard satisfied in the cases they want (but no others). The court also does not really address the unique element of this case--government dropping charges after the defendant twice pleaded guilty in open court--and how it might differ from a decision to drop charges at the outset. The decision also functionally prevents the district court from considering perjury charges against Flynn because there is no amicus to investigate.

My guess is that, like the decision on the tax subpoenas, the panel opinion will not survive long; the court will take it en banc and deny mandamus. Then on to SCOTUS?

Update: Orin Kerr compares this decision to Bush v. Gore for a variety of reasons, most prominently in telling a lower court to stop what it was doing, out of distrust that the lower court would conduct ordinary procedure in any appropriate way. I would add an additional similarity--both are "good for this trip only" decisions; I expect that in the next case, Judges Henderson and Rao will remind how extraordinary mandamus relief is and how high the standard is and how harm to non-parties is not a basis for relief.

No qualified immunity (updated)

The Court denied cert in Cooper v. Flaig, the 12th of the 13 petitions that were pending in mid-May. The remaining case is Davis v. Ermold, the sole case not arising from police misconduct. Not sure what they are waiting for on that one.

SCOTUSBlog's Petitions We're Watching includes three qualified immunity cases. One asks whether an appellate court can raise QI sua sponte and whether to overrule Pearson and another asks for clarification of the standard for how analogous precedent must be to clearly establish a right.

No TRO/Injunction against Bolton book

Judge Lamberth denied the government request for a TRO and preliminary injunction stopping publication of John Bolton's memoir. The court found that the government is likely to succeed on the merits because Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations." But the distribution process is so far along that the court refused to stop it. The court was especially reluctant to order Bolton to, as the government requested, "'instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party.'" As the court put it, "for reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir."

The government likely will appeal, but I cannot imagine the D.C. Circuit reaching a different conclusion in four days. The complaint in this case requested a constructive trust to seize proceeds from the book and there is noise about a criminal prosecution. Lamberth was confident that Bolton had opened himself to both of those.

Some passing thoughts:

1) Another entry in the standing makes no sense chronicles: After finding no irreparable harm, Lamberth pivots to standing, pointing out that he could "reframe" the irreparable-harm factor in the equitable analysis as the redressability factor in the Article III standing analysis, while declining to do so. But it illustrates, even in passing, how standing really is constitutionalized merits and thus unnecessary.

2) He also did not address any First Amendment prior-restraint issues, again because unnecessary given the equitable analysis.

3) The irony of Bolton (likely?) losing the proceeds of the book: He was criticized in anti-Trump circles for refusing to present this material to the House or Senate during the impeachment proceedings and for choosing instead to tell the story when it is too late to help the country and when it will put money in his pocket. It looks like he may lose the money.

Avoiding universality, again

The DACA decision again avoided the scope-of-injunction issue and the propriety of universal/non-particularized injunctions, in a clever way. The Court consolidated three cases--two (from New York and the Second Circuit and California and the Ninth Circuit) had entered universal injunctions prohibiting enforcement of the rescission order, while one (from the D.C. Circuit) had vacated the DHS order rescinding DACA. Only the Ninth Circuit decided the appeal and affirmed the injunction (the others were taken on cert before judgment) and the Ninth Circuit was the "lead" case in the caption. But the majority focused its review on the D.C. case that vacated the rescission under the APA without issuing an injunction. Affirming vacatur of the rescission order meant there was no rescission order, therefore nothing to enjoin. It became unnecessary to consider the propriety of the "nationwide" (unfortunately) scope of the injunction.

This may mean that resolution of the scope-of-injunction question is not on imminent, as I am not aware of any cases on SCOTUS's horizon squarely presenting the question. A reader points out that scope-of-injunction is at issue in Little Sisters of the Poor. If--as happened today and in the census case--the Chief joins the four liberals to hold that the Trump Administration messed up the APA, universality may be unavoidable.

FIU/UM Zoom Brown Bag

This summer, FIU and UM organized a joint Zoom-based brown-bag series--a two-hour workshops, one speaker from each school. We held the first on Wednesday, with Scott Norberg (FIU) presenting an empirical study of law-student borrowing and Caroline Mala Corbin (UM) presenting a piece on Barnette and parental opt-outs. It was an engaging hour.

My thoughts on online/distance education are well known. But I will say that distance scholarly workshops work pretty well. We lose something not being in the same room, in terms of communication, engagement, and sociability. But it is a good second option that allows scholars to talk with one another.

So you want to be a law professor?

At Summary, Judgment, Will Baude and Adam Chilton have a conversation on law teaching and advising people who want to enter law teaching. The conversation is inspired by Jason Brennan's Good Work If You Can Get It: How to Succeed in Academia, applied to the unique species of the legal academy. The first posts (in order of posting, rather than order they appear on the blog) are here, here, here, and here.

Worth keeping an eye on over the coming days and weeks. I will link to posts periodically.

Quick Civ Pro Thought after Bostock

A quick thought about teaching Civ Pro (not until January) following Bostock: One of my go-to illustrations of 12(b)(6) legal insufficiency and dismissals with prejudice has been a Title VII claim for sexual-orientation discrimination. I need to find something new.

Bad (and Pedantic) Legal Takes

I am not on Twitter but I lurk on public accounts, mainly to find news stories and events. One of my favorite is Bad Legal Takes, a collection of stupid statements (one cannot call them arguments) people make about law. It is refreshingly bipartisanly stupid. For every "Trump gets a third term because the impeachment undermined his first term" and "HIPPA prohibits Costco from making me wear a mask" there is a "you can't shout fire in a crowded theatre" and "Trump and Russia colluded, so Trump's SCOTUS appointments are null and void."

Here is one from yesterday, following Bostock, from user Jordan Brooks: Just a reminder, Supreme Court decisions are only binding to the parties before the Court. At the risk of being pedantic and rescuing Mr. Brooks' take from a meaning he likely did not intend or understand, he is sort of right if ultimately wrong. Either way, it is more complicated. And it shows why Kevin Walsh is right that judicial departmentalism reflects the way courts actually operate.

Brooks is correct as to the Court's judgment. The judgment allows three Title VII claims--Zarda's Estate against Altitude Express, Stephens' Estate against Harris Funeral Homes, and Bostock against Clayton County, Georgia--to go forward. And there is no guarantee any of the plaintiffs will win, given the difficulties all Title VII plaintiffs encounter. The judgment does not compel anyone else to do or refrain from doing anything. It does not stop another private employer from discriminating against an LGBTQ employee. It does not stop Clayton County from firing another LGBTQ employee. It does not compel the EEOC to begin pursuing sexual-orientation discrimination claims.

Brooks is sort-of correct as the Court's opinion. The opinion does not bind the EEOC in its internal operations. If the EEOC were to change its interpretation of Title VII and decline to pursue sexual-orientation discrimination as sex discrimination, the opinion would not prohibit that move. Nor does it compel other parts of the executive branch to adopt this understanding of sexual-orientation-as-sex for purposes of other laws. Nor, standing alone, does it compel Clayton County or another employer to act or refrain from acting in some way.

Where Brooks goes off the rails is that the Court's opinion does bind someone besides these parties--every court in the United States, federal and state. So Clayton County or another employer could fire an LGBTQ employee because they are LGBTQ. But they will be sued and they will lose in a lower court that is bound by the Bostock opinion as the controlling interpretation of Title VII.

So let's credit Brooks with a mediocre legal take rather than a bad legal take.

Justice Kavanaugh foresees 2020 Blue Wave and other thoughts on Bostock

I have asked my colleague Kerri Stone to write something about today's decision holding that LGBTQ discrimination is sex discrimination; I hope to post that later today. I add a couple of points/questions.

The open question will be whether this means discrimination based on LGBTQ status is sex discrimination for purposes of the 14th Amendment (triggering intermediate scrutiny) and other statutes such as Title IX, Equal Pay Act, public accommodations, etc. The answer would seem to be yes; Gorsuch's major premise is that one cannot discriminate against a person on the basis of sexual orientation without discriminating against that person on the basis of sex. Even if the reason the employer targets the plaintiff because of who she is attracted to or her sex at birth, the mistreatment must pass through sex. And those other provisions protect individuals not groups, the other premise of Gorsuch's analysis.

That question could affect the outcome when an employer argues that the First Amendment or RFRA displaces Title VII, something the majority leaves for another day. If LGBTQ discrimination is sex discrimination deserving of greater scrutiny, does that mean the government's interest in preventing that discrimination (through Title VII) is compelling for RFRA purposes? Does it receive more deference than an interest in prohibiting a form of discrimination receiving rational-basis review? The assumption by even the SG in Masterpiece Cake Shop is that the religious-freedom argument could not fly as to race discrimination but it could as to LGTBQ discrimination because that received lower scrutiny. What happens in the middle?

Gorsuch's writing in this opinion reminds me of Kagan in its informality, with a lot of "imagine if you will" hypotheticals and illustrations.

A lot will be made of the Chief joining this opinion, especially in light of his dissent in Obergefell. He recognized the sexual-orientation-is-sex argument in that case, asking counsel about it during argument. But it did not persuade him with respect to marriage and he did not address it in his dissent. Did he change his mind? Does he see this statute as different than the Fourteenth Amendment (and perhaps other statutes)?

Two interesting theories floating around Twitter (which may fit together). Katherine Franke suggests that the original majority was the four liberals and Gorsuch and that the Chief joined so he could assign the case to Gorsuch and get a narrower opinion, rather than Ginsburg assigning the opinion to herself and producing something broader. Marty Lederman speculates (based on October case assignments) that the Chief kept this opinion for himself to rule against the plaintiffs, while Gorsuch was undecided; when Gorsuch would not join that opinion, he wrote his own going the other way and the Chief came on board. Both moves can be explained by the Chief's desire to hold the assignment. Of course, Ginsburg might have assigned the opinion to Gorsuch rather than keeping it for herself to reward him for the switch and to keep him on board (a very Brennan/Stevens move).

The Chief's switch from Obergefell to today may explain the final paragraph in Kavanaugh's dissent:

[i]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.

Compare this with the final paragraph of the Chief's Obergefell dissent:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Finally, the piece that prompts the title of this post: Here is the first paragraph in the conclusion to Kavanaugh's dissent:

It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.

This can be true only if "in the next few years" (meaning this year, really) the Democrats gain unified control of the political branches, including likely with a filibuster-proof Senate majority. No Republican-controlled body would pass and no Republican President would sign such a bill. I am certain Kavanaugh's does not want this to happen. But I hope he is right.

SCOTUS not helping on qualified immunity

Eliminating qualified immunity does not alone solve the problem of police misconduct or within the criminal justice system, although it is a good start. It appears that start will not come from the Court. As of early May, 13 petitions challenged qualified immunity in application or in concept. The Court denied cert in three last month and denied cert in another eight on Monday. Baxter v. Bracey drew a solo dissent from Justice Thomas, repeating the arguments from his Ziglar concurrence on how neither the objective "clearly established law" or subject good faith matches 19th-century common law. Not even Justice Sotomayor, who has offered other objections to qualified immunity, joined Thomas or expressed disagreement with the denial.

Two cases remain from the original 13--police killing an unarmed man by tasing him nine times during an acute mental-health episode and Kim Davis refusing to follow Obergefell.

I wonder if the recent events and the introduction of legislation prompted the Justices to wait. Although they made this mess, Congress is moving to clean it up, letting the Court off the hook.

Second Lafayette Square Lawsuit

A second lawsuit has been filed over the clearing of Lafayette Square on June 1. Plaintiffs are three individuals who were at the protests and plan to protest in the future. They have the benefit of one additional week of presidential statements and other developments to support allegations of retaliation, viewpoint discrimination, and the unreasonableness of the use of force.

This complaint has another wrinkle: A claim for violation of the Posse Comitatus Act for bringing forth military police and national guard troops in clearing the park. They claim "a non-statutory right of action to enjoin and declare unlawful presidential action that is ultra vires," then seek damages, a DJ, and an injunction. This seems weak for three reasons: 1) Any implied injunctive right of action cannot support a claim for damages; 2) I am not sure how they can show damages from the violation of Posse Comitatus, which requires showing some incrementally greater injury from the fact that military personnel might have been involved in the injurious First and Fourth Amendment violations; and 3) It seems unlikely that Trump will try to use military force again--thris morning's tweets about Seattle notwithstanding, the military has pushed back on this. Still, it is a cute theory for public consumption.

Testing fan speech

NASCAR has barred Confederate flags from races, events, or properties, including those displayed or waved by fans. But who owns and controls the various tracks? And if the government, what is the connection between the government and NASCAR and is there enough of a connection to make NASCAR a state actor and to trigger the First Amendment? This is the first instance in which a private professional league issued a blanket ban on fan expression.

Lawyers doing lawyering

Good legal work from lawyers for CNN and and NY Times calling out bad arguments. David McCraw of The Times has been down this road.

The Rod Carew of ________

Rod Carew's Jewish connections are well known. Less well known, but discussed following his death in May, was Little Richard's connections to Judaism, which include not working or attending parties on Shabbat or Rosh Hashanah. (H/T: Spencer Waller).

So, who are the Rod Carews (Rods Carew?) of other fields? Looking for someone who is not Jewish, adopts Jewish practices, and is widely but erroneously believed to be Jewish.

Have at it.

Calling the NFL's bluff

Roger Goodell is an incompetent liar. So I hesitated to rejoice over his video from last week in which he said, among other things, "We, the National Football League, admit we were wrong for not listening to NFL players earlier and encourage all players to speak out and peacefully protest." It never mentioned the flag, kneeling, or Colin Kaepernick, so I wondered how much he was committing to and how much wiggle room he tried to leave the league and himself so as to avoid displeasing the President and a segment of the fan base.

We may find out. Just before midnight, the President* tweeted "Could it be even remotely possible that in Roger Goodell’s rather interesting statement of peace and reconciliation, he was intimating that it would now be O.K. for the players to KNEEL, or not to stand, for the National Anthem, thereby disrespecting our Country & our Flag?" Imagine the NFL returns and players kneel and the President and the Trumpier team owners object. I can envision Goodell insisting that he meant that players were encouraged to participate in the ongoing protests or to speak on Twitter and other outlets; he did not mean they were encouraged to bring it onto the field.

[*] Or someone working his account. The use of "intimating" suggests it was not the President himself.

What does Cohen v. California clearly establish? (Updated)

The stories are confused and seem incomplete. But apparently the sheriff of Lowndes County, Georgia confiscated from a protester in Valdosta a sign reading "Fuck Trump." Georgia law prohibits profanity in the presence of children under 14. (Update: A woman was arrested for violating the law with a different sign the following day. The article indicates the sheriff intends to continue enforcing the law).

The enforcement of the ordinance violates the First Amendment. Profanity is constitutionally protected and, at least outside of sexually explicit material on TV, adult speech cannot be reduced to what is appropriate for children. So although the Georgia Supreme Court declared that law valid in 1973, it cannot stand under modern doctrine.

The question is whether the First Amendment right to display a "Fuck ____" sign is clearly established--the constitutional question is beyond dispute so no reasonable officer could have believed seizing this sign was constitutionally valid. Is this like Johnson and flag burning? Or might a court actually say a jacket in a courthouse is different from a hand-made sign at a protest rally where children might be present?

No vehicles in the park

No explanation needed.

Last act of a desperate man (or first act of Henry V)?

Many have pointed to the differences in how police responded to the George Floyd protests compared with the anti-shutdown protests. It is especially glaring to see police respond with resistance, impatience, and ultimately often-discriminate force and arrests of largely peaceful Floyd protests on public parks and sidewalks, while calmly de-escalating or ignoring heavily armed people in paramilitary gear in a space (the halls of the statehouse) they did not have a right to be in. Photos and videos show the latter protesters being as shouty and as in the officers' faces. And there were more explicit threats of unlawfulness, given that some protesters had military-grade weapons and were threatening government officials. Yet police stayed calm, used little force, and made few (if any?) arrests.

This is not new. In January 2017 (boy, does that seem like decades ago), I wrote about the lack of force and arrests in the first women's march and the airport protests following the first Muslim Ban. At the time I wondered why--whether it was as simple as the race of the protesters (or at least the racial valence of the protests, since many of the protesters and victims of police violence have been white).

One commenter suggested that the subject of the protests mattered: Police do not remain neutral and play peacekeeper when they and their misconduct are the targets of the protests, as opposed to President Trump or governors and their shutdown orders. Events of the past two weeks support that idea. Police in Minnesota were loaded for bear from the outset, prepared for confrontation and looking to stifle the assembly, before anything turned violent and before it spread to other cities; when people in other cities began protesting, police started from a confrontational, escalatory pose with the goal of clearing the streets. We have seen little of the patience and leeway accorded to other protesters. Videos making the rounds show police looking for an excuse to get physical and, once things have become physical, to clear the crowd. One video from Seattle shows a bike officer riding on the sidewalk and trying to squeeze into a narrow space between a person and the pushes; when he and the citizen unavoidably bump, the cop uses that as an excuse to make an arrest. Videos I have seen from yesterday in Buffalo, Philadelphia, and elsewhere show police determined to clear a space and taking out anyone in that space, regardless of whether they are peaceful and whether they are doing anything wrong.

It is telling that we have seen so many incidents of indiscriminate, unnecessary, and arguably excessive police force in response to protests against excessive force by police. And it is significant that we have seen so many incidents of police force despite officers knowing they are being filmed by every protester with a phone, not to mention media covering these events. One explanation is that police do not care; they are confident that nothing in the videos will cause them to lose their jobs or their qualified immunity. Another is that they are, intentionally or not, asserting power by showing what real excessive force looks like--"stop crying or I'll give you something to cry about"--and proving the protesters' point.

A third, more speculative explanation is that we are at the end of an era, that significant changes to policing and police impunity are coming. And at least some officers are trying to get in their last shots before it is too late. I hope reform is coming.

Lawsuit over clearing Lafayette Square

Complaint here. Plaintiffs are Black Lives Matter DC and five individuals who were at the protests on Monday and would like to return; defendants are Trump, Barr, Esper, the acting chief of the U.S. Park Police, director of Secret Service, commander of D.C. National Guard, U.S. Army Chief of Staff, 100 John Does (federal law enforcement), and 20 John Poes (non-federal law enforcement). Claims are for violations of First and Fourth Amendments and conspiracy under §§ 1985(3) and 1986.

My prior post showed the problems the lawsuit faces. The Bivens and immunity problems do not go away. But the complaint finds cute ways to try show standing for prospective relief. It highlights plaintiffs' intent to continue demonstrating; the new W.H. perimeter prevents access to Lafayette Square or any protest space within view of the White House; and 3) statements by Trump and others to deploy violence against protesters--all of which establishes an imminent threat of future violence if they return to protest. The complaint also compares Trump's statements supporting protesters he likes (such as those who stormed statehouses in search of haircuts) and calling to "dominate" protesters he does not like, as a way to show that the actions against the protesters were viewpoint- and content-based.

What about Bivens? What about prosecutorial immunity? (Updated)

Rep. Justin Amash, the House member who left the GOP because of Trump, announced plans to introduce a bill (co-sponsored with Ayanna Pressley (D-MA) to eliminate qualified immunity. The bill would "explicitly not[e] in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability." (Update: Draft text).

But what about Bivens, which has no statutory basis? Federal law enforcement officers assert qualified immunity in Bivens actions (over, for example, using definitely-not-tear-gas-irritant-agents to disperse peaceful protesters); many of the Court's early qualified immunity cases were Bivens rather than § 1983 actions. In Abbasi, the majority incorporated some immunity considerations (e.g., over-deterrence of officials) to the special factors counseling hesitation. But that will not apply in basic Fourth Amendment claims against domestic law enforcement; those officers still fall back on qualified immunity. I suppose that if Amash's bill were to pass, the Court might eliminate immunity to keep Bivens and § 1983 parallel.

And what of other extra-textual absolute immunities that the Court has super-imposed on § 1983 (and Bivens, by extension). Prosecutorial misconduct contributes as much as police misconduct to the racial problems in the criminal justice system (distinct from excessive-force); absolute immunity leaves prosecutors free to engage in blatant misconduct, often shifting the litigation focus back to the police, who then assert qualified immunity. In theory, appellate review, attorney ethics, and electoral checks remedy or deter such misconduct. It has done nothing in practice, given the high standards for showing constitutional violations on appeal, reluctance to sanction prosecutors, and the fact that elected prosecutors run on obtaining lots of convictions as a result of prosecutorial over-reach.

The point is that qualified immunity is bad and should go. But it is not the only cause within the constitutional-litigation framework. (And this does not consider causes outside of constitutional litigation, such as unions and employment practices). Targeting qualified immunity alone--and only in the specific context of § 1983--misses the bigger picture and the many moving pieces necessary for reform.

CDT challenges social-media executive order

The Center for Democracy and Technology has sued President Trump over the social-media executive order. Amazingly, that was issued less than a week ago--remember when that seemed this administration's most significant threat to free speech?

The complaint alleges CDT's organizational standing based on its interests in furthering free speech and online expression and the resources it will have to devote to engaging and monitoring the administrative actions the EO calls for. It also lays the ground for third-party standing on behalf of Twitter and other providers, arguing that the President's past retaliatory actions against private companies may deter them from filing lawsuits. The First Amendment theory is that the EO was retaliatory against Twitter for the exercise of its First Amendment rights, making it "ultra vires and therefore void ab initio."

The organizational standing theory works, at least for the moment. While controversial, this is the same theory that human-rights, immigration, and refugee organizations used in the travel ban and similar cases. Courts do not seem ready to jettison the theory. I am less sure about third-party standing, because it is not clear that "fear of Trump criticism affecting our stock price" is a sufficient barrier to Twitter and other companies enforcing their rights.

But it seems to me that the action fails because, at this point, the EO does not do anything. A legal enactment (whether an EO, regulation, or statute) does not violate rights or cause injury (beyond chilling effect, which is insufficient); the enforcement of that enactment violates rights or causes injury. A court cannot erase an invalid EO any more than it can erase an invalid statute; it can only declare its invalidity and enjoin its enforcement.

The problem is that this EO alone does not do anything and there is nothing to enforce right now, thus it cannot violate rights, cause injury, or otherwise do something that a court can enjoin. The EO commands administrative action that might, when taken, violate the First Amendment, the APA, or some other statute (I have not seen anything to make me believe the FCC has authority to interpret or apply § 230). But we will not know whether those administrative actions cause injury or violate rights until they are taken. Same with the FTC and DOJ surveillance and information-gathering--until we see the form it takes, we cannot know whether it is lawful. That also seems to create a problem for the retaliation argument. If the FCC has authority to interpret § 230 and it comes up with a valid interpretation, the retaliatory motive does not render it unlawful, at least so long as the resulting regulation is not limited to Twitter.

The only question is whether this failure is treated as standing (no one has been injured because the government has not done anything), ripeness (the issues are not fit for judicial resolution), or as substantive First Amendment (nothing happened yet to violate the First Amendment). But, at this point, I do not see how this lawsuit succeeds against an EO that, for the moment, is for show.

Suing over Monday's crowd dispersal

Here is what we know happened around 6:35 p.m. Monday next to Lafayette Square: Federal law-enforcement officials threw something (dispute whether it was tear gas or a smoke bomb) and pushed throw to move the crowd out of the area. Prior to that point, the crowd was lawfully gathered in a space that has been held to be a traditional public forum, was engaging in peaceful expressive activity, and not engaging in unlawful conduct. Attorney General Barr ordered federal officials to move the crowd, so the space was clear for the President to have his photo opportunity in front of the church. This was captured live on TV, as well as recorded on numerous phones. Federal officials also moved church personnel off of church property through tear gas or other device, presumably at the AG's command.

It looks like a significant violation of the First Amendment. But:

• We do not know the individual officers who threw the smoke/tear gas and there were too many officers in the phalanx. I suppose video forensics and FOIA might be able to identify. But any lawsuit would involve many Doe defendants and discovery to determine their identities.

• The plaintiffs could sue the AG on the theory that he directly ordered the unconstitutional behavior. This runs into Abassi and Iqbal, which seemed to limit if not foreclose Bivens claims against high-ranking officials on a supervisory theory. This case is different than Iqbal in that the supervisory conduct was a direct order to engage in First-Amendment-violative conduct in a specific situation, rather than enactment of general policies, making the causal connection more direct. I doubt that distinction would fly.

• It is not clear there is a Bivens action for free-speech violations. SCOTUS has assumed it several times, while most circuits have held there is. The Court may say that this is a different context (First Amendment, presidential security, massive protests) and thus find special factors counseling hesitation (presidential security, high-ranking official, etc.).

• Barr and any individual officers can claim that the security concerns provide a compelling interest justifying clearing the public forum of peaceful protesters, although any compelling interest in clearing space for a photo opportunity is a weaker argument. The talisman of national security may be sufficient to defeat any substantive First Amendment right.

• Even if this conduct violated the First Amendment, any defendant is likely to get qualified immunity. There is no precedent that places "beyond doubt" that the First Amendment is violated by the use gas/smoke to clear out peaceful protesters in a period of massive demonstrations so the president can do a photo opportunity. There certainly is no precedent making it beyond doubt that it is a violation for the AG to do it. The Court pays lip service to the legal rule that precise precedent is not required and that a right can be clearly established as a matter of general principle, but recent cases have, in practice, found immunity in the absence of substantially similar precedent. The two cases (Hope and Lanier) that have found rights clearly established on general principles involved egregious facts and were two decades ago. Is "gassing peaceful protesters in a public forum to allow a presidential photo op" the equivalent of selling foster children into slavery (Posner's famous example)? Probably not.

• Because the facts are unique and the absence of precedent obvious, a court likely would not touch the merits and would grant qualified immunity.

• No plaintiff would have standing to obtain declaratory or injunctive relief. They could not show imminent injury because they could not show both a substantial (or at least reasonable) likelihood that they would protest again and that the AG or federal officials would repeat their actions.

As someone said on a list serv, I hate writing this. But it is the law that we have at the moment. Maybe this case illustrates the urgency of the Court doing something about qualified immunity, outside the Fourth Amendment context.

"We have a different Court"

In an apparently unhinged Monday phone call with governors, the President urged states to enact new laws prohibiting flag burning. According to sources, the President said "We have a different court" and that "if you wanted to try a very powerful anti-flag burning law, we’ll back you.” (Not sure if that means the administration would not back a state that tried a moderately powerful law).

I know these are unserious ravings of an unserious person, but it does reveal how little he understands.

First, under judicial departmentalism, Trump's suggestion is lawful and consistent with his constitutional oath, as is action by any governor and legislature. If they believe these laws consistent with the First Amendment, they can act on that understanding.

Second, for what it is worth, new laws would be unnecessary in many states where anti-flag-burning laws remain on the books. They remain unenforced because state officials know what would happen if they tried.

Third, even if a logical solution to the problem of violent protests, it could not resolve the current situation (assuming these protests peter out after a few more days). Imagine a state enacted or announced plans to enforce a flag-burning law tomorrow. The law would be enjoined immediately by a district court and affirmed by a court of appeals, both bound by Johnson and Eichman. It would be awhile before it reached that "different Court." Alternatively, the right to burn a flag is one of the few clearly established rights, so no officer would attempt to enforce that law on pain of losing qualified immunity in a subsequent civil action.

But indulge the President's fantasies that "we have a different Court" (Kennedy was the last holdover from the Eichman Court) that would resolve the flag-burning question differently. Would it, writing on a clean slate? The Court has earned its reputation as extraordinarily speech-protective; no coherent theory of free speech can tolerate the viewpoint discrimination that would prohibit burning a flag in protest but allow wearing a flag as a shirt or altering a flag to create a different message. At worst, the Chief would join the liberals in another 5-4 decision. But Gorsuch appears as speech-protective as his former boss. Alito and Thomas have cited Johnson to support the principle of viewpoint neutrality (when other cases could have served the same purpose), which I would think they would not have done if they had the doctrine in their cross-hairs. Plus, this would provide an easy opportunity for Republican appointees to silence the "Court is political" voices by demonstrating that their jurisprudence does not inevitably and ineluctably lead to the Republican-preferred outcome. Justice Scalia got 30 years out of Johnson as pretty much the lone example of his originalism leading to a disfavored outcome. So perhaps the President is right--we do have a different Court and it would declare the law invalid by a 9-0 vote rather than a 5-4 vote.

The remedy to be applied (Updated)

At the risk of spending more time taking seriously something fundamentally unserious.

As I am coming to understand it, § 230(c) does two things. (c)(1) says the ISP or web site is not liable as publisher or speaker for third-party content in actions for defamation, invasion of privacy, etc. (c)(2) accords immunity for "good faith" actions in restricting access or removing material that it believes unprotected or "otherwise objectionable" (although I am not sure what cause of action exists for an improper takedown). The premise of the "policy of the United States" reflected in the EO is that companies that engage in content- or viewpoint-based takedowns engage in "editorial conduct" do not act in good faith, thereby a) removing (c)(2) immunity and b) rendering them publishers who should be liable as such. Neither of these can be squared with the statutory text.

But what about what Twitter actually did in this case--engaging in its own speech by slapping a label on the post or promoting contrary messages. Section 230 is silent as to an ISP engaging in its counter-speech to the content it allow on its site. But no one doubts that a private bookstore or newsstand could allow content while labeling it or organizing it in a way that expressed the owner's distaste for that content and that it could not be liable for such actions. So even if the EO could remove an ISP's protection (which it cannot), it cannot stop it from doing what it did here.

And many comments about all of this (tweets by Trump, Ted Cruz, etc.) are about how Twitter is violating the First Amendment by its own counter-speech, treating it the same as enforced silence. Putting aside that these are private companies, this is a perverse take on free speech.

Thoughts on the Twitter EO (Updated to include final Order)

Thoughts on the final new EO.

1) It cites Packingham and Pruneyard to support the proposition that social media has become the "functional equivalent of a traditional public forum" and the "modern public square." But Packingham was a case about how social media is so important that government cannot prevent people from accessing it; it does not support the proposition that social-media companies are bound by the First Amendment. It studiously avoids Manhattan Community Access, which rejected the idea that opening a private space for speech (a bulletin board, open mic at a comedy club) subjected the owner to First Amendment limitations. And part of the rationale was that the Constitution does not "disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property." To the extent the EO commands the FTC to try to impose those obligations on social-media platforms (Twitter mentioned by name), it will run into that limitation.

2) The irony (perhaps intentional) is that the EO was prompted not by restricting speech, but by engaging in counter-speech--exercising its own First Amendment right to label something Trump posted as bullshit. Even if Twitter were somehow obligated to treat its platform the way government is supposed to treat the public square and not bar any protected speech, it cannot, consistent with the First Amendment, be prohibited from speaking in its own voice. So the Twitter conduct the EO aims to stop is not the Twitter conduct that precipitated the EO.

3) The EO's goal seems to be to impose the platform/publisher distinction onto  statutory language that does not create and cannot bear that distinction. Eugene Volokh explains the platform/distributor/publisher distinction and § 230 as it stands. He explains that § 230 gives social-media companies the immunity of a platform (e.g., telephone companies) even when it acts like a distributor (e.g., a bookstore or newsstand). Congress could change that, but has not. The EO attempts to impose that interpretation as executive-branch policy, but I am not sure the text can bear it. I leave to others to parse this out.

4) To relate this to Adam's various posts, the EO and the discussion around § 230 reflects the conflation of descriptive and normative arguments, of "is" and "should." The EO argues that any "editorial conduct" makes the entity a publisher and outside the protection of (c)(1) and (c)(2). But that is not what the statute, as it is written, says or means. As Eugene argues, it could have said it and it could be amended to say it. In others, maybe Twitter "should" lose immunity and the law should be written to do that; under the law as it "is," Twitter does not lose immunity.

5) It is not clear what practical effect the EO has. It seems to want the FTC and FCC to undertake regulatory activities that neither may have the power to take in an area that typically is not subject to agency action. Section 230 immunity arises when a service is sued for defamation or for an improper take-down; neither of those has anything to do with the agencies. It prohibits federal spending on misbehaving sites. It seems to want the FTC and state AGs to consider unfair/deceptive trade practice proceedings against sites for controlling content, but that would seem to run into some First Amendment problems.

6) The press is going to spend the next several days talking about the this and not the 100,000 dead Americans. So this is more shit flooding the zone.

Update: I agree with the general consensus that, while this will have no legal effect, it will make life difficult and annoying for Twitter, under the threat of the federal government (including a corrupt AG) watching them and their users. Which is the point.

A Day in the Life

Josh Blackman lays out what a day in the life of a law student will look like this fall--he is correct and it is not pretty. My concerns for the difficulty of teachers playing to both the room and the Zoom dovetail with the teaching problems he describes.

He concludes with an important point: Most students' will demand face-to-face classes, because most students hated Zoom. But most may not realize that they are demanding something that cannot be delivered two months from now and will look and feel different than what they imagine. Schools' most important task right now may be to communicate with students and lay out the realities (perhaps assigning Josh's post)--both to set student expectations and perhaps influence student demand.

Update: Ilya Somin offers further and different suggestions, including moving small classes online so larger classes can be spread into several rooms and protecting vulnerable teachers by having them teach to the students gathered (at a distance) in the classroom.

JOTWELL: Erbsen on Nash & Collins on certificates of division

The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. ___ (forthcoming 2021), about the certificate of division that Justices used when riding circuit to get cases before SCOTUS.

Cert denied in three qualified immunity cases

In a post about the Reuters stories on qualified immunity, I mentioned that SCOTUS had multiple cert petitions in the May 15 conference dealing with qualified immunity. Monday's Orders List included denials in three: Kelsay v. Ernst (police officer slams woman to the ground), Jessop v. City of Fresno (officers stole $ 225,000 in cash and rare coins while executing search warrant), and Clarkston v. White (retaliatory denial of charter-school application, where real issue was proper defendant rather than whether right was clearly establish). No noted dissents from any of the cases, even the truly egregious Jessop. Ten other petitions remain with the Court, including several that ask the Court to rethink the entire doctrine.

Online education on trial?

This op-ed describes a lawsuit against George Washington by the lawyer/parent of a GW student, alleging breach of contract because the claim that the school continues to deliver quality education regardless of formate is "demonstrably false."

When we went underground in March, there was some discussion of whether schools could succeed with a force majeure defense. The op-ed raised a different question for me: Will resolution of this claim require a court or jury to decide whether online education is comparable to in-person education and how comparable must it be? And will a court be willing (or willing to allow a jury) to resolve that policy question as a factual matter?

When the middle might be worse than the extreme

Although several months away, universities, including law schools, are trying to figure out how to conduct fall classes. This Inside Higher Ed piece from April offered fifteen scenarios. The favored approach seems to be a return to campus, but with social-distancing and other protocols and with accommodations for students and faculty with age, health, or other reasons for being unable to return to the workplace without a vaccine or herd immunity.*

[*] And assuming that the wave of reopenings in May and June does not produce spikes in cases in June and July that set us back by several months.

Which really means that most schools will be doing a hybrid. They will be mixing in-person, remote, and online classes. And  in-person classes must have remote components. Professors who want to return to the live classroom will have to divide their sections (half the class live on Day One, the other half live on Day Two) and combine it with interactive technology--namely some kind of Zoom or similar hook-up--for the students who cannot be there. (Recording or live-streaming the regular live class is not a reasonable accommodation).

I have been thinking about how this will work and I am not sure it will. My in-person classes work because of a high level of engagement with the students in the room--a rapidly moving conversation, my pacing and moving around the room a lot, and working with and off stuff written on the dry-erase boards. I do not see how I can do that while being close enough to the computer to interact with those students, answer questions, see who is chatting or raising a hand, etc. People on Zoom cannot see the dry-erase board, so visuals would have to be on share screen in addition to the Board. In being close enough to the computer to engage the remote students, however, I fear I am going to lose meaningful interaction with the students in the room.

Given that, I think I might prefer to keep the entire class via Zoom. I believe I reached a point in March and April were I could run a Zoom class that was a reasonable approximation of an engaged law-school course that challenged students, engaged students, and taught students what they needed to know. It remains inferior to an in-person class. But it may be preferable to a hybrid that does a poor job for both sets of students.

§ 1983 or the 11th Amendment

One of my pet peeves is confusion about why states cannot be sued in § 1983 actions: It often is short-handed as being about sovereign immunity depriving a court of jurisdiction, when doctrinally it is about states not being "persons" subject to suit under the statute and there being no cause of action against a state (or state agency).

This arose in Colorado Dept. of State v. Baca (over "faithless elector" laws)  through questions by Justices Breyer and Gorsuch suggesting that the parties colluded to maintain a meritless action in order to obtain a judicial ruling. It appears Baca sued the Secretary of State, then the parties negotiated to have the Department be named defendant and to not challenge its non-suability under § 1983. I would guess that proceeding against the state rather than the secretary was necessary for Baca to proceed with a claim for nominal damages, which was essential to establishing and maintaining standing. Counsel for both sides argued that the Court should not concern itself with this, that the availability of a cause of action is a non-jurisdictional issue that the parties can waive.* Gorsuch suggested that, even if waivable, it might be a basis to DIG the case.

[*] Scott Dodson blanched when he heard that.

I am glad both Justices used the appropriate terminology and framework and wish lower courts would follow suit. But it reveals how nonsensical it is to think of sovereign immunity (which has nothing to do with the text of the Eleventh Amendment) as a jurisdictional rather than merits limitation. Where Congress lacks power to abrogate (e.g., ADEA), the limitation is jurisdictional; where Congress has the power but declined to exercise it (e.g., § 1983), it is merits. Even if in both cases, a state is willing to be sued eo nomine.

Testing the Koufax Curse

Last fall, I wrote about three Jewish players (Alex Bregman, Max Fried, and Joc Pederson) playing Division Series games on Yom Kippur, then offered tentative responses to the question posed by Armin Rosen of Tablet about why we focus so much on playing on Yom Kippur and no other days. Rosen also jokingly suggested that 2019 demonstrated the work of the Koufax Curse befalling players who fail to follow in Koufax's Yom Kippur footsteps.

In a draft paper on SSRN, I test the Koufax Curse by developing an explanation for our obsession with playing on Yom Kippur and by examining career statistics in Yom Kippur games by eighteen Jewish players, plus Rod Carew. This has been a fun piece to write. The abstract is after the jump. It emains a work in progress, and I welcome feedback.

October 8-9, 2019, the Jewish holy day of Yom Kippur, marked a unique moment in the history of baseball and American Judaism. Three Major League post-season games began between sundown Tuesday and sundown Wednesday. One team in each game featured a Jewish player as a star or significant contributor. Each Jewish player appeared in the game. Each team lost. One journalist labeled this result the "Koufax Curse" -- the curse of the Jewish player who plays on Yom Kippur, rather than following in the footsteps of Hall-of-Fame pitcher Sandy Koufax, who did not pitch Game One of the 1965 World Series when it fell on the holy day.

This paper empirically tests the Koufax Curse. Looking at 18 Jewish Major Leaguers since 1966 (the year after Koufax's career-defining game), the paper charts how the players and their teams performed in games played during any part of Yom Kippur. It also examines statistics for Rod Carew, the Hall-of-Famer who is not Jewish but enjoys a unique familial and cultural connection to Judaism. From this, we can measure whether players or teams are haunted by the Koufax Curse. And whether Yom Kippur 5780 was an anomaly or reflects a broader trend.

 

Mandatory retirement for academics?

From a humanities professor, although I imagine the same arguments could and would be made about law professors. The article loses me a bit with the argument that besides scholarship drying up, being a senior academic means "repeatedly teaching the same courses on the same books with the same notes." That practice does not strike me as a product of age or seniority; I know many senior academics who would never dream of teaching this way and many more-junior academics who have been doing this since their careers began.

This proposal contrasts with the article discussed in this post, which argues that teaching effectiveness lasts far longer than scholarly creativity, at least for those who enjoy and wish to pursue that route.

How many FLOTUSes?

We were watching the documentary on Michelle Obama. In one segment, she is introduced before a speech as the 44th First Lady. But there have been more FLOTUSes than POTUSes. I count 52*--two women served in the role for Jackson, three for Tyler, two for Cleveland's first term, two for Benjamin Harrison, and three for Wilson. So that would make Obama the 51st FLOTUS and Melania Trump the 52d FLOTUS.

[*] William Henry Harrison's wife was too sick to travel from Ohio to Washington. Harrison's daughter-in-law Jane Irwin Harrison performed the role for the month.

Do we designate and recognize other office holders as we do POTUS? Is it too confusing to have numbers for FLOTUS or VPOTUS (there have 48, not more because there was no mechanism for filling the frequent vacancies pre-1967) that depart from the POTUS number with which everyone is familiar?

Reuters on qualified immunity

Reuters on Friday published a multi-part series on qualified immunity. The center of the study is a empirical look at how Pearson v. Callahan and the Court's recent string of summary reversals changed how courts of appeals handle qualified immunity. Its findings:

  • In 2005-07, plaintiffs in excessive-force cases prevailed 56 % of the time; in 2017-19, defendants prevailed 57 % of the time.

• This graph shows that the flip in plaintiff success is a recent development. From 2014-16, plaintiffs prevailed 52.2 % of the time; for 2017-19, it dropped to 43 %. Some of that might be traceable to the influx of Trump appointees (recognizing that some, such as Don Willetts of the Fifth Circuit, have criticized qualified immunity), as well as the hint from SCOTUS's summary reversals.

• The dark blue represents cases in which the court found no excessive force; the medium blue represents cases in which the court found excessive force but that it was not clearly established that the force was excessive; the light blue represents cases in which the court  skipped the merits question and found that it was not clearly established that the force was excessive. That third category has expanded the past two years.

• Courts (including SCOTUS) increasingly demand factual overlap with precedent before finding a right clearly established. Case in point: The Ninth Circuit granted qualified immunity because no precedent held that the Fourth Amendment was violated by police stealing private property while executing a search warrant.

• The latter two colors (which, on the eyeball test, appear to represent a bit less than half of the defendant victories) establish the new problem: Courts demand factual overlap for a right to be clearly established, then refuse to provide a precedential opinion that can serve to clearly establish that right going forward.*

[*] Courts seem more willing to reach the merits--so the right now is clearly established--in non-police, or at least non-excessive-force, cases.

• SCOTUS will review multiple petitions involving qualified immunity at its May 15 conference. These include the stolen coins, an officer who deployed a police dog on a non-resisting suspect, an officer who shot a child while attempting to shoot the non-threatening family dog, and Kim Davis trying to avoid damages for ignoring Obergefell (I used this in Civil Rights in the fall). Justice Thomas called for reconsidering qualified immunity in his concurring opinion in Ziglar v. Abbasi; this will be a chance to see if anyone else wants to follow him down that path.

Courts should not reach out, unless they need to reach out

SCOTUS reached a strange resolution in United States v. Sineneng-Smith, arising from a conviction of an attorney for violating the federal law prohibiting encouraging or inducing non-U.S. persons to enter or remain in the U.S.

The Court vacated and remanded to the Ninth Circuit on grounds of the "principle of party presentation"--that courts must take and resolve cases as they come and are presented by parties represented by competent counsel--and that courts are "passive instruments of government."* And while there are exceptions (as shown in a two-page addendum** in which SCOTUS has appointed amicus or called for further briefing since 2015), the Ninth Circuit went beyond the pale in its management and resolution of the case, was unjustifed by any "extraordinary circumstances." The Court took issue with the court of appeals inviting specific amicus to brief and argue specific constitutional that were broader than what Sineneng's attorney had argued--that the law was overbroad and facially unconstitutional, as opposed to the defendant's arguments that she had a limited First Amendment immunity for her conduct. [I did not say it in the initial post, but I will say it now--the Court did not explain why what the Ninth Circuit did was more beyond the pail than what it does frequently].

[*] The partisan bend of that idea is fascinating, given the make-up of the federal courts and the evolving nature of constitutional and impact litigation.

[**] Any guesses as to why this was an addendum and not part of the opinion?

Justice Thomas concurred, but took the time (reached out, one might say) to explain why the overbreadth doctrine was invalid and should be rejected as unwarranted by text and history, inconsistent with the usual standards for facial challenges, and another improper application of the improper doctrine of third-party standing. He cites his dissent on third-party standing in Whole Women's Health and restates his distaste for this "handiwork of judges, based on the misguided 'notion that some constitutional rights demand preferential treatment.'" Query whether this hints at where the Court might be going on the standing questions in the Louisiana abortion cases.

Back to normal? And a question

I had wondered whether these telephonic arguments might sound more familiar when we hit a more charged case. Based on Wednesday's argument in Little Sisters of the Poor, the answer is yes. Justice Alito went quite Michael Fischer for Pennsylvania, with the Chief allowing what seemed like more leeway to ask further questions and push a particular point and for counsel to answer (not sure if it involved additional time). Justice Ginsburg's first question for Noel Francisco involved a lengthy recitation of the law of political accommodations, followed by a "what do you think" quasi-question. She also was in advocacy mode with repeated questions about the burden on women from these accommodations. And Paul Clement, availing himself of the Court's familiarity with him, at a several points talked over the question and over the Chief's efforts to stop an exchange and move to the next Justice.

The second case, Barr v. American Association of Polticial Consultants, challenged the prohibition on political robo-calls under the TCPA, including a focus (especially in questioning for the government) on severability. I imagine some people have spoken about this,  but I will raise it again: Would severability make more sense and be easier if the Court properly conceptualized the question as enjoining enforcement of a provision rather than "striking down" a provision so it is as if the provision was not enacted? Would we have the same problem of whether the hypothetical Congress would have enacted the law? Or would it be easier if the Court could say "the entire law remains on the books, but the executive cannot enforce this provision while it enforces other provisions"?

Finally, only Justice Thomas asked about universal injunctions (along with state standing). Francisco suggested it was especially inappropriate in this type of case; Clement had the longest screed about percolation and disagreement and the problem of district courts deciding for the country; and Fischer suggesting that broader preliminary relief might be more appropriate than final relief. Fischer also referred to the various amici on the subject to suggest that non-particularized relief (even if it was not called universal or nationwide injunction) was available when the APA was enacted.

Oral argument

Aside from Justice Thomas asking two questions, the argument seemed typical. The exchanges between one justice and the attorney sounded the same. While the Chief was cutting people off after about 3-ish minutes, it seemed as if attorneys were better able to complete their answers before being moved to a different point. Individual justices let attorneys go a bit longer in answering their questions before following up or tweaking. Other than the Chief-controlled calling, I am not sure a case such as this would have sounded much different in-person.

The big difference is that the Justices were less the stars. Justice Breyer's questions were short and relatively coherent. And the argument lacked the practices of piling on and rescuing. The former is where one group of justices peppers one side with repeated questions; the latter is where a different justice helps an attorney who is struggling with an issue either with a softball  or a Jeopardy-style "Isn't the right answer  ____" question. The interesting thing is how it plays with other arguments this week and next, which involve more divisive issues that prompt a more-divisive Court to ask questions in this manner.

It also made clear that there is no rational reason not to have live audio (if not video) of regular arguments.

Update: I forgot about the best line of the argument, from Lisa Blatt arguing for Booking: Riffing off the government's argument that "Cheesecake Factory" is not a factory that makes cheesecakes, Blatt argued: "'Crab House' is not a little house where crabs live. They're actually dead and you eat them." I wonder if she lives in Maryland.