This post serves as a notice that the original has been updated. Scroll down to where it says: [Below is the remaining portion of Fulford’s update this week] A big part of the show is taking place in Pakistan where Imran Khan -backed by the WH Global Alliance- will hold the largest rally in the country’s history today, amid crackdowns by the unlawful government currently in power against supporters. The post Full Update | Benjamin Fulford — March 27th 2023: Western financial system suffers $8 trillion implosion, revolution follows appeared on Stillness in the Storm. 💾

There's long been a dispute about whether religious freedom provisions limit the government's power related to religious sites on government land. These are usually American Indian sites, though in principle they might be other religious sites as well. In Lyng v. Northwest Indian Cemetery Protective Ass'n (1988), the Court held that the Free Exercise Clause doesn't give religious groups the legal right to stop various government activities related to such sites (even though at the time, after Sherbert v. Verner but before Employment Division v. Smith, the Court had read the Free Exercise Clause as securing a presumptive right to religious exemptions from generally applicable government action). But one enduring question has been whether the Religious Freedom Restoration Act of 1993 should be read as perpetuating Lyng, alongside other Sherbert-era precedents, or should be read as superseding it. (See my Intermediate Questions of Religious Exemptions, pp. 652-56 for more on some related matters.) In any event, this issue is now up before the Ninth Circuit en banc, which heard argument last week on it in Apache Stronghold v. U.S. (see, e.g., this Deseret News article [Kelsey Dallas]); the panel had ruled, 2-1, against the religious freedom claims, but the Ninth Circuit agreed to rehear the case en banc. My colleague Gene Schaerr at Schaerr | Jaffe LLP, at which I'm a part-part-part-time Academic Affiliate, represents the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, the Sikh Coalition, and Protect The 1st as amici in the case. In any event, Gene kindly put together an item on the case and the oral argument, which I'm passing along below; I'd be glad to add contrary views as well (and you can see some in the panel majority opinion): Last week, the Ninth Circuit held a lively en banc oral argument in Apache Stronghold v. United States—a case raising crucial questions of religious freedom law and, most importantly, statutory interpretation. The case focuses on an indigenous sacred site called Chi'chil Biłdagoteel, or Oak Flat, which has been sacred to Western Apaches since before European contact and remains the site of key religious ceremonies that, according to Apache belief, can't take place elsewhere. The federal government has proposed transferring Oak Flat to a private company for a copper mine, which would swallow the site in a massive crater, ending the Apaches' religious exercises there forever. The question is whether destroying the sacred site and ending the Apaches' religious practices "substantially burdens" their religious exercise under the Religious Freedom Restoration Act (RFRA). The answer under RFRA's text seems obvious: ending a religious exercise forever "substantially burdens" it. As then-Judge Gorsuch explained, when the government doesn't just penalize a religious exercise, but "prevents the plaintiff from participating in" it—as by not accommodating the practice in prison—the government "easily" imposes a "substantial burden." At oral argument, however, several Ninth Circuit judges wrestled with whether this commonsense textual argument should carry the day. Their questions centered on three areas of broad significance to the law of religious freedom and statutory interpretation. First, Judges Nelson and Berzon asked whether the Supreme Court's 1988 decision in Lyngv. Northwest Indian Cemetery controls the meaning of "substantial burden" in RFRA. In Lyng, the Supreme Court rejected a claim that the government violated the Free Exercise Clause by authorizing the paving of a road in a forest sacred to Native Americans. But Lyng differs from the Apache Stronghold case in two respects. Factually, the road at issue in Lyng wouldn't be built over the plaintiffs' sacred sites, but a half-mile or more away—leaving the plaintiffs free to continue visiting their sites and engaging in the same religious exercises as before. They alleged instead that the sound of the road nearby would diminish the "efficacy" of their practices—a religious question that Lyng said civil courts "cannot … measur[e]." More importantly, Lyng was decided under a different legal standard—the Free Exercise Clause, not RFRA. And considerations unique to the Free Exercise Clause drove the Court's decision. For example, Lyng repeatedly emphasized that the "crucial word in the constitutional text"—and, thus, in the Court's analysis—"is 'prohibit'"—a word that isn't used in RFRA. And Lyng repeatedly contrasted laws that "prohibit" religion with laws that have only "incidental effects" on religion. In other words, the decision to build a road wasn't targeting religion; the religious harms were simply "incidental effects" of a broader "government program[]," requiring no heightened review. This theory—that the trigger for heightened review under the Free Exercise Clause is a lack of neutrality—became the centerpiece of the Court's approach to the Free Exercise Clause two years later in Employment Division v. Smith. And one of the leading cases Smith relied on for this rule was Lyng. RFRA, by contrast, expressly rejects the distinction between targeted and incidental burdens on religious exercise. Indeed, the whole point of the statute was to apply strict scrutiny "in all cases where free exercise of religion is substantially burdened"—"even if the burden results from a rule of general applicability." 42 USC 2000bb(b)(1), 2000bb-1(a). Nor is Smith the only case to understand Lyng as being about neutrality and general applicability. Every Supreme Court free-exercise case since Lyng has characterized it as an example of Smith's neutral-and-generally-applicable standard in action—from Trinity Lutheran to Espinoza to Fulton—with Trinity Lutheran citing it as the leading example of how the Court, in applying the Free Exercise Clause, has been "careful to distinguish" between laws that are "neutral and generally applicable" and laws "that single out the religious for disfavored treatment." Other circuits have done the same. In Tenafly Eruv Association v. Borough of Tenafly, for example, Orthodox Jews sought access to government-controlled utility poles to create an eruv—a ceremonial area within which Orthodox Jews can carry objects during the Sabbath. When the government refused and was sued under the Free Exercise Clause, it defended based on Lyng, claiming that Clause does not apply to burdens resulting from government management of "its land." But the Third Circuit disagreed, noting that Lyng was a case about neutrality, not just about government land—and that the Free Exercise Clause "applies not only when a coercive law or regulation prohibits religious conduct, but also when government denies religious adherents access to publicly available money or property." Second, Judge VanDyke offered several hypotheticals probing the role of alleged spiritual harm in the "substantial burden" analysis.  For example, would a substantial burden arise simply if someone believes they will go to hell if the government doesn't sell them a particular piece of land?  But that and similar questions conflate two distinct issues—the spiritual consequences to a religious believer from not engaging in a religious exercise, and the objective obstacle the government places in the way of that exercise. The proper focus of the substantial-burden inquiry is on the latter—asking what the government has done to make the plaintiff's religious exercise objectively more costly or difficult. Take Hobby Lobby for example. The burden there wasn't the divine wrath the business owners believed they might suffer if they covered abortifacients in their insurance plans. Rather, the burden was that the government made their religious exercise more costly by threatening large monetary penalties. Similarly, the burden in Yoder wasn't the feared corruption of the Amish children's souls from attending public school; it was that the government made their religious practice—foregoing public education—objectively more difficult by imposing criminal fines. So too in Apache Stronghold: The burden isn't the spiritual pain the Apaches will feel when their sacred site is destroyed.  It's that the government makes it objectively more difficult to engage in their religious exercise by allowing a mining company to blow up their sacred site. While focusing on alleged spiritual injury might seem superficially sympathetic to religious liberty claims, moreover, it would actually harm religious liberty in the long run. One reason is that determining whether particular spiritual consequences count as a substantial burden would enmesh courts in religious questions. (Would the plaintiff in Judge VanDyke's hypothetical really go to hell? Would the Hobby Lobby plaintiffs really be complicit in abortion?)  That approach would also create immense pressure on courts to find other (atextual) ways to curtail RFRA—which is what the government asked courts to do (unsuccessfully) in the contraception-mandate litigation. Judge VanDyke asked about one possible curtailment: simply deem some substantial burdens not "cognizable" under RFRA if they result from certain types of federal action—such as a decision about the use of federal land. But this novel idea runs headlong into RFRA's text—which says it applies to "all Federal law, and the implementation of that law, whether statutory or otherwise." That idea also lacks any apparent basis in principle. If anything, the federal government should have less discretion in managing public lands than in enforcing its criminal laws, protecting public health and safety, or operating high-security prisons—all of which are already subject to RFRA. As Justice Scalia said in Smith: "it is hard to see any reason in principle or practicality why the government should have to tailor its health and safety laws to conform to the diversity of religious belief, but should not have to tailor its management of public lands" (citing Lyng). And, if courts can make atextual, unprincipled carve-outs from RFRA for federal land, there is no reason they can't make similar carve-outs for other disfavored religious liberty claims—such as those alleged to cause "third-party harms" (which the government and scholars asked the Court to carve out in Hobby Lobby) or those involving antidiscrimination laws. The way to avoid all this is to follow RFRA's text and precedent—asking whether the government has made it objectively more difficult for the plaintiff to engage in the particular religious exercise at issue. If so, the court should find a substantial burden, no matter the form of the federal action or the political valence of the case—and then let the government explain why it believes the burden is nevertheless justified. Finally, Judge Collins inquired whether RFRA is applicable to the land-transfer at all, given that the transfer is authorized by a statute enacted after RFRA, and in the event of a conflict between two statutes, a later-enacted statute might be thought to trump an earlier-enacted one. Notably, RFRA by its terms expressly tells courts how to resolve this question—instructing that RFRA applies to later-enacted statutes unless "such law explicitly excludes such application by reference to this chapter." But the government, perhaps taking its cues from mining-interest amici, has offered a late-breaking argument that this provision of RFRA is unconstitutional. Notwithstanding Congress's express direction, the government urges, a later-enacted law might be held to "impliedly" repeal RFRA without mentioning it. That argument would be devastating for religious liberty. For thirty years, Congress has legislated against the background principle that RFRA applies to head off negative consequences from later statutes unless it is expressly displaced. To hold this provision unconstitutional would come as a shock both to Congress and to proponents of religious liberty—particularly after recent enactment of the Respect for Marriage Act, which was defended on the ground that RFRA would still apply to it. It would also open up an entirely new front for religious liberty's opponents—who can argue not only that a later-enacted law complies with RFRA but that RFRA doesn't apply in the first place, because Congress has (without saying so) overridden it. Such a result doesn't empower Congress—which is well aware of RFRA's explicit-reference provision and needs nothing more than a simple majority to comply with it. It empowers judges—liberating them from the straightforward, narrow inquiry of whether a later-enacted law refers to RFRA and instead encouraging them to hunt for implied repeals in the later-enacted law's penumbras and emanations. The Constitution requires nothing of the sort. Nor does any countervailing precedent support the mining interests' view. For example, one of their lead cases is the Supreme Court's 1955 decision in Marcello. But Marcello didn't ignore or strike down a provision requiring that later departures be express—it applied it. The earlier-enacted law there (the APA) said it supplied the procedure governing administrative litigation unless a later-enacted law displaced it "expressly." The later-enacted law, meanwhile, said it supplied the "sole and exclusive procedure" in deportation cases. The Supreme Court held that this language "expressly supersedes" the APA—not that the APA's express-repeal provision was unconstitutional. Fortunately, we don't need to wonder about the Supreme Court's views on this subject. As an important amicus brief explains, the Court has twice applied RFRA's explicit-reference provision in high-profile cases (Hobby Lobby and Little Sisters of the Poor). So has the Seventh Circuit, which in Korte v. Sebelius said that RFRA "accounts for" the rules governing the temporal allocation of legislative power, since Congress remains free to repeal it at any time (by complying with the explicit-reference provision). Thus, to rule otherwise would both conflict with the Supreme Court and create a novel circuit split. [*****] In short, RFRA's text supplies a simple answer to the question presented in Apache Stronghold: The government "substantially burdens" religious exercise when it authorizes the complete physical destruction of a Native American sacred site, ending tribe members' core religious exercises forever. This doesn't mean the Apaches automatically win their case; it just means they get to the second step of the analysis—the balancing test of strict scrutiny. The government fears that applying that test to federal land-use decisions would be unworkable. But federal land-use decisions are already subject to an alphabet soup of restrictive laws like NEPA, FLPMA, NHPA, NAGPRA, CWA, CAA, and ESA. For example, if the mine in this case threatened an endangered snail darter, the project couldn't go forward under the Endangered Species Act at all—and the government wouldn't even get a chance to satisfy strict scrutiny. So applying RFRA to federal land-use decisions still gives the Apaches' fundamental right of religious freedom less protection than is already given to endangered animals. The government's policy argument is also the same argument Congress rejected in enacting RFRA. The Supreme Court in Smith feared that applying strict scrutiny to all governmental actions "across the board" would be "courting anarchy." But Congress has told the federal courts not to be afraid of strict scrutiny: it is a "workable test for striking sensible balances between religious liberty and competing prior governmental interests." The question is whether the Ninth Circuit will apply RFRA's plain text or will instead succumb to atextual, fear-based reasons for limiting RFRA's reach. The post Apache Stronghold v. U.S.: Religious Freedom and Government Property appeared first on Reason.com.

The Alliance for Hippocratic Medicine's lawsuit seeking to force the Food and Drug Administration to revoke its approval of mifepristone, a widely used abortion medication, has received significant attention. (I've blogged on administrative law issues in the case here and here.) Less attention has been made to a parallel lawsuit filed by Demoratic state attorneys general seeking to force the FDA to move in the opposite direction. Politico reports: Lawyers representing the FDA are expected in court on Tuesday to defend the agency's authority to place certain restrictions on mifepristone, which is typically used to end a pregnancy during the first 10 weeks. The case before the U.S. District Court for the Eastern District of Washington was brought by more than a dozen Democratic state attorneys general who say the requirements around the drug, including a certification process for anyone prescribing it, place an undue burden on patients and providers. . . . Oregon Attorney General Ellen Rosenblum is co-leading the lawsuit with Ferguson, and they are joined by the Democratic attorneys general representing Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island and Vermont. The pill restrictions, the group claims, are burdensome for both patients and doctors and the documentation requirements put them at risk for harassment or violence. Interestingly enough, this lawsuit faces some of the same administrative law obstacles as does the AHM suit. As the Justice Department points out in its brief, the state AGs failed to administratively exhaust their remedies before filing suit (such as by filing a petition calling upon the FDA to alter its regulation of mifepristone). Moreover, it is not clear how the state AGs have standing to raise their claims at all. The state AGs' claims that their states are harmed by the maintenance of restricitons on prescribing mifepristone rest on speculative claims about the effect of such restrictions. Another problem with the state AGs' suit is that it is ostensibly challenging the  mifepristone restrictions adopted by the FDA in January 2023, but those restrictions represented a loosening of the FDA's restrictions on mifepristone. Accordingly, vacating the January 2023 policies would result in the reimposition of those restrictions previously in force, which would be more burdensome and thus do more harm to the interests the state AGs purport to represent. As I understand it, this lawsuit was filed to try and blunt the impact of AHM v. FDA, either by creating a conflicting court order or nationwide injunction that would keep mifepristone on the market or merely by creating a circuit split on the question. Yet whatever the motivation of the suit, it seems to me it should founder on some of the same administrative law grounds that could frustrate the AHM case. The post Blue-State AGs Have A Mifepristone Lawsuit of Their Own appeared first on Reason.com.

Yesterday the Appellate Court of Maryland enforced crime victims' rights in a high-profile case involving Adnan Syed, the subject of the "Serial" podcast. In a 2-1 decision, that Court ruled that the trial court needed to respect the rights of Young Lee, brother of Hae Min Lee (the victim), to have been notified of and to have attended a hearing last September when the trial judge vacated Mr. Syed's conviction for murdering Ms. Lee. This decision is an important milestone, signaling that crime victims' rights are becoming an enforceable part of our nation's criminal justice architecture. Most readers are aware of the "Serial" podcast, which cast doubt on the reliability of Mr. Syed's convictions in 2000 for (among other things) the 1999 murder of 17-year-old Hae Min Lee. In 2003, the Maryland Court of Special Appeals affirmed his conviction. In 2010, Mr. Syed filed a petition for for post-conviction release, arguing ineffective assistance of counsel. Ultimately, after extended evidentiary and other hearings, the Maryland Court of Appeals affirmed Mr. Syed's conviction. The U.S. Supreme Court denied certioari. At the time, Maryland Attorney General Brian Frosh responded to news of the high court's decision by saying the evidence linking Mr. Syed to Ms. Lee's death was "overwhelming." Then, several years later, in September 2022, Baltimore State's Attorney Marilyn Mosby filed a motion to vacate Mr. Syed's convictions under Maryland's vacatur statute. The motion argued that prosecutors had failed to disclose evidence to the defendant that other suspects might have been responsible for the murder. That motion was questioned by many observers, who noted that Mosby acted precipitously as she was about to face trial on  federal fraud and perjury charges. (The federal charges against Mosby remain pending; recently her defense attorneys were permitted to withdraw from the case after being accused of violating court rules.) The judge who presided over Mr. Syed's trial also provided an affidavit stating that substantial evidence supported Mr. Syed's conviction. But because the State was moving to set aside Mr. Syed's convictions–and Mr. Syed obvious agreed—it was not clear who was defending the conviction. After a hearing, the Circuit Court for Baltimore City granted the motion. Ms. Lee's brother, Young Lee, appealed the vacatur, arguing that he (a crime victim's representative) had not been given adequate notice of the vacatur hearing or a meaningful opportunity to be heard on the merits of the vacatur motion. The prosecutor had provided only one business day's notice, via email, to Mr. Lee. Mr. Lee, through counsel, requested a postponement of seven days so that he could arrange to take leave from work and fly from California to be present in the courtroom. The trial court denied the requested postponement but permitted him to give a statement on Zoom—with only thirty minutes to prepare. The Appellate Court concluded this was not adequate notice: Clearly, notice to a victim in California that there would be a hearing in Baltimore a minute later would not be sufficient to comply with the statutory objectives, a point which Mr. Syed's counsel conceded, appropriately, at oral argument. Similarly, the State's notice here, an email [on Friday] one business day before the hearing on Monday, September 19, 2022, was not sufficient to reasonably allow Mr. Lee, who lived in California, to attend the proceedings, as was his right. The inadequate notice also interfered with Mr. Lee's right to attend the proceeding, even though he was allowed to participate via Zoom: We hold that in the circumstance where, as here, a crime victim or victim's representative conveys to the court a desire to attend a vacatur hearing in person, all other individuals involved in the case are permitted to attend in person, and there are no compelling reasons that require the victim to appear remotely, a court requiring the victim to attend the hearing remotely violates the victim's right to attend the proceeding. Allowing a victim entitled to attend a court proceeding to attend in person, when the victim makes that request and all other persons involved in the hearing appear in person, is consistent with the constitutional requirement that victims be treated with dignity and respect. The Court then considered the appropriate remedy for these violations of crime victims' rights. It could be argued that setting the vacatur aside and holding a new hearing where victims' rights were respected would violate Mr. Syed's double jeopardy rights. The Court made short work of that potential argument, explaining that Ordering a new vacatur hearing would not result in a second prosecution after conviction or acquittal. The result of a new vacatur hearing will be to either reinstate the initial conviction or vacate it again. There would not be a second prosecution. The Appellate Court noted that, against the backdrop of proven violations of Maryland's victims' rights statute, it had "the power and obligation to remedy that injury." Accordingly, the Court set aside trial court's order vacating Mr. Syed's convictions and remanded "for a new, legally compliant, transparent hearing on the motion to vacate, where Mr. Lee is given notice of the hearing that is sufficient to allow him to attend in person, evidence supporting the motion to vacate is presented, and the court states its reasons in support of the decision." While the Appellate Court generally supported victims' rights, one part of the decision held that that a victim does not have a right to be heard a vacatur hearing. This conclusion is difficult to square with the language of the Maryland Victims' Rights Amendment, which gives crime victims the state constitutional right "to be heard at a criminal justice proceeding"—which a vacatur hearing would seem to be.  But this part of the Appellate Court's decision may have limited practical importance. The Appellate  Court noted that while a victim may lack a "right to be heard, there are valid reasons to allow a victim that right in a vacatur hearing, and the court has discretion to permit a victim to address the court regarding the impact the court's decision will have on the victim and/or the victim's family." The conclusion that a victim should be heard at a vacatur hearing where no one is defending the judgment of conviction is well supported by (for example) the U.S. Supreme Court's practice of appointing an advocate to defend the judgment below when both parties decline to do so. For example, in 2000, Chief Justice Rehnquist appointed me to argue in defense of the Fourth Circuit's decision that 18 U.S.C. section 3501 superseded the Miranda requirements, after the Clinton Administration Justice Department declined to defend the federal statute. In another case, the Supreme Court has explained that this approach permits it to "decide the case satisfied that the relevant issues have been fully aired." The Appellate Court declined to formally appoint Mr. Lee to defend the conviction. But if he is permitted to speak—as the Court suggests that "valid reasons" support—then he will be able to provide relevant information on this subject. Yesterday's Maryland Appellate Court ruling is important because it signals that in Maryland (and, presumably, in many other states with similar laws) crime victims' rights must be respected and will be respected. For the last several decades, the crime victims' rights movement has evolved from working to create crime victims' rights to making those rights enforceable.  I know my friends in the crime victims' rights movement in Maryland (some of whom are working on this case) have made that a top priority. Crime victims face many challenges in enforcing their rights. Among the most significant are obtaining legal counsel and "standing" in court to advance their arguments. Here, Mr. Lee had legal counsel and was allowed to be heard regarding his rights. That result should be broadly applauded, as a process in which crime victims are heard is one that will produce outcomes that are more broadly accepted by the public—regardless of whether that outcome goes in favor of or against the victim. Enforcing Mr. Lee's rights as a victim representative does not take away any rights from Mr. Syed. The Court stayed enforcement of its ruling for 60 days, which should provide ample time for a new hearing—during which time Mr. Syed is released. It appears that Mr. Syed plans to appeal to the Maryland Supreme Court, so his rights will continue to be reviewed. And if ultimately a new hearing is held, that hearing will be one where both Mr. Syed's and victims' rights are respected. If the nation is going to adopt crime victims' rights—as all fifty states have done to some degree—those rights should be enforceable. It would add insult to criminal injury to extend victims only paper promises. The Appellate Court of Maryland's decision wisely and properly took crime victims' rights seriously and enforced them.   The post Adnan Syed's Conviction Reinstated to Protect Crime Victims' Rights appeared first on Reason.com.

Several countries use the currency "dinar." Almost all are majority Muslim (e.g., Algeria and Jordan). One is not majority Muslim; what is that country? The post Dinar appeared first on Reason.com.

3/29/1937: West Coast Hotel v. Parrish decided. The post Today in Supreme Court History: March 29, 1937 appeared first on Reason.com.

Apparently jealous of all the attention that Yale and Stanford law students have gotten for acting like imperious children, Columbia law students, represented by BALSA, LALSA, NALSA, EWOC, OutLaws, QTPOC, IfWhenHow, APALSA, and SALSA (no, I'm not familiar with all of these acronyms), have been throwing a collective hissy fit. The act that stirred such emotion? Columbia's Instagram account noted that a group of law students affiliated with the Federalist Society met with Justice Brett Kavanaugh in DC. You can read the details at the Daily Wire. The students' only tangible complaint, at least judging by the article, is that Kavanaugh was "credibly accused" of sexual assault. It's been over four-and-a-half years since the allegation of misbehavior over 30 years earlier surfaced. Since then, no one, including those who were present at the time, has corroborated the initial allegation, nor, despite the best efforts of ambitious journalists, has anyone been able to substantiate any similar behavior by Kavanaugh in the ensuing almost-forty-years. It's time to give up on the word "credibly" in this context. (And, fwiw, I'm pretty sure that the students would react differently to news of a meeting with a particular former president who is truly "credibly accused" of sexual coercion. Hint: his initials are WJC.) The post More Elite Law Student Foolishness, This Time at Columbia appeared first on Reason.com.

Wil Wilkins, one of the plaintiffs in Wilkins v. United States (courtesy of Pacific Legal Foundation).   Today, the Supreme Court issued its opinion in Wilkins v. United States, a highly technical procedural case that may turn out to be a significant victory for property owners, particularly those in Western states where the federal government owns large amounts of land. The ruling is a 6-3 decision featuring an unusual coalition of justices in the majority: the three liberals joined conservatives Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh. Clarence Thomas wrote a dissent joined by Chief Justice John Roberts and Samuel Alito. The plaintiffs, Wil Wilkins and Jane Stanton, own homes near the Bitterroot National Forest in Montana. The National Park Service owns a longstanding easement over the land which allows it to grant access to private parties engaged in logging on the National Forest. In 2006, the Forest Service put up a sign stating that the road through the plaintiffs' land is open to general "public access." This greatly increased traffic through the area, and disturbed Wilkins and Stanton. They filed an action against the federal government under the Quiet Title Act, which authorizes landowners to make claims protecting their property rights against federal intrusion. But the government claims they failed to do so within the 12 year statute of limitations under the Act. The lower court ruling concluded that the time limit is an absolute "jurisdictional" rule, and therefore isn't subject to constraints or limitations. Today, the Supreme Court reversed that ruling, and instead concluded that the time-bar is a just a " a nonjurisdictional claims-processing rule," which the plaintiffs might be able to get around (possibly on the ground that the government failed to properly raise the issue) or prove they didn't really violate. Here's a key excerpt from Justice Sonia Sotomayor's majority opinion: "For purposes of efficiency and fairness, our legal system is replete with rules" like forfeiture, which require parties to raise arguments themselves and to do so at certain times…. Jurisdictional bars, however, "may be raised at any time" and courts have a duty to consider them sua sponte.… When such eleventh-hour jurisdictional objections prevail post-trial or on appeal, "many months of work on the part of the attorneys and the court may be wasted…" Similarly, doctrines like waiver and estoppel ensure efficiency and fairness by precluding parties from raising arguments they had previously disavowed. Because these doctrines do not apply to jurisdictional objections, parties can disclaim such an objection, only to resurrect it when things go poorly for them on the merits.… Given this risk of disruption and waste that accompanies the jurisdictional label, courts will not lightly apply it to procedures Congress enacted to keep things running smoothly and efficiently….. Under this clear statement rule, the analysis of §2409a(g) is straightforward."[I]n applying th[e] clear statement rule, we have made plain that most time bars are nonjurisdictional…."  Nothing about §2409a(g)'s text or context gives reason to depart from this beaten path. Section 2409a(g) states that an action "shall be barred unless it is commenced within twelve years of the date upon which it accrued." This "text speaks only to a claim's timeliness," and its "mundane statute-of-limitations language say[s] only what every time bar, by definition, must: that after a certain time a claim is barred…" Further, "[t]his Court has often explained that Congress's separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional." In his dissent, Justice Thomas applies a presumption directly opposite to the one the majority relies on. Because federal sovereign immunity is at stake, he argues there should be a presumption in favor interpreting the time-bar as jurisdictional, because otherwise federal sovereign immunity would be waived: The doctrine of sovereign immunity bars suits against the United States. But, in the Quiet Title Act of 1972, Congress waived this immunity and consented to suits against the United States in order to determine the status of disputed property. 28 U. S. C. §2409a. Congress conditioned this consent on, among other things, a 12-year statute of limitations: "Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued." §2409a(g). This Court has long construed such conditions on waivers of sovereign immunity as jurisdictional. And, it has acknowledged the jurisdictional nature of the Quiet Title Act's statute of limitations in several precedents. In holding that §2409a(g) is not jurisdictional, the majority commits two critical errors. First, it applies the same interpretive approach to a condition on a waiver of sovereign immunity that it would apply to any run-of-the-mill procedural rule. Second, by reading the Court's prior Quiet Title Act precedents in this way, the Court disregards their express recognition of the jurisdictional character of the Act's time bar. Both majority and dissent makes some good points. Because of the technical nature of many of them, this is one of those situations where you have to read the opinions in full to really understand the issues. Ultimately, where you come down on this may depend in large part on how much priority should be assigned to preserving sovereign immunity versus protecting property owners' rights. I am highly skeptical that sovereign immunity is a legitimate constitutional principle at all. By contrast, I think it is extremely important for courts to enforce constitutional property rights on par with other constitutional rights. If the federal government illegally appropriates private property, it perpetrates an uncompensated taking in in violation of the Fifth Amendment (which requires "just compensation" for government seizure of private property rights). The Quiet Title Act is a tool for preventing such violations of constitutional rights. If we are going to have judicially created presumptions respecting its application, courts should pick ones that make it easier to vindicate constitutional rights over ones that provide extra protection for the dubious principle of sovereign immunity. But I can certainly understand why those who assign greater value to sovereign immunity or lesser value to property rights might reach a different conclusion. Despite its hypertechnical nature, Wilkins may turn out be an important precedent. In Montana and other western states, the federal government owns many millions of acres of land that abut or cut through private property. Various federal agencies often do things that impinge on landowners' rights or authorize various private parties to do so. The Quiet Title Act is an important tool for combating such intrusions on private land, one that may be of use to large numbers of people. And there may be a wide range of cases where there are statute of limitations issues that come up in these situations (e.g.—when land changes hands, or when it is unclear exactly when the intrusion started). The unusual alignment of justices in this case is worth noting. The three liberal justices are not generally known for their solicitude for property rights. Yet they voted for the property owner in this case, with Justice Sotomayor writing the majority opinion. Justice Thomas, author of the dissenting opinion, is sometimes considered the most property-protective justice. Alito and Roberts (who joined the dissent) also have generally pro-property rights records. It's hard to say for sure. But I suspect that attitudes towards sovereign immunity may have trumped attitudes towards property rights for many of the justices here. While the liberal justices may not be big champions of property rights, they are also generally more skeptical of sovereign immunity than conservatives. By contrast, Justice Thomas is a particularly forceful advocate of broad sovereign immunity. The three conservative justices in the majority may be a bit less committed to immunity than he is. Obviously this is just conjecture. There may be other explanations for the breakdown of votes here. The Supreme Court's decision is not the end of this litigation. The case has been remanded to the lower courts, which will now have to reconsider the statute of limitations issue, and (if the plaintiffs win on that) determine who should prevail on the merits. NOTE: The plaintiffs in this case were represented by the Pacific Legal Foundation, which is also my wife's employer, though she herself did not work on Wilkins. PLF has more material about the case here.   The post Victory for Property Rights in Highly Technical Supreme Court Decision appeared first on Reason.com.

On March 15, a federal district court in Texas heard arguments in Alliance for Hippocratic Medicine v. Food & Drug Administration, in which AHM is seeking to force the FDA to revoke its approval of mifepristone, a widely use abortion medication. While most commentary on the case has focused on the substance of the suit, the administrative law questions are more likely to control the outcome. As I noted in this post on the case, there are substantial obstacles to a court properly reaching the merits of the case, including Article III standing and the statute of limitations for suits of this kind. Drawing on an analysis by Adam Unikowsky, I explained why these issues should spell the end of the case. AHM's case relies upon a very aggressive theory of standing and stretching the reopening doctrine to overcome the statute of limitations. Erin Hawley of the Alliance Defense Fund is one of the attorneys representing AHM in the case. Below the fold I reproduce her response to my post, which largely focuses on the question of standing, and my reply. Here is Hawley's response: Without addressing the merits of the FDA's approval of mifepristone in 2000—under regulations requiring the FDA to find that pregnancy is a "serious or life-threatening illness"—or its deregulation of mifepristone to allow mail-in abortions in violation of the FDCA and other federal laws, Professor Adler suggested in these pages that the serious legal issues involved in Alliance for Hippocratic Medicine v. FDA should never see the light of day because the plaintiff doctors filed suit too late and because they failed to identify any particular patient who will come to them for medical help after suffering adverse consequences from a chemical abortion. Neither procedural hurdle poses a bar here. First, as to standing. Commentators claim that Plaintiffs' allegations are too "speculative" under the Supreme Court's decision in Clapper v. Amnesty International USA, 568 U.S. 398 (2013). The FDA similarly relies on Clapper, asserting that Plaintiffs seeking prospective relief must demonstrate "certainly impending" harm. Other commentators focus on Clapper, too, criticizing Plaintiff doctors for failing to allege "specific facts demonstrating that any particular patient will come to them." But as that post acknowledges, "these facts are impossible for the doctors to provide." Were FDA and commentators correct about Clapper, standing to address future injuries would almost never exist. But they are wrong. At the outset, the "certainly impending" standard from Clapper does not stand alone; that case noted that the Supreme Court has also "found standing based on a 'substantial risk' that the harm will occur." Clapper, 568 U.S. at 414 n.5. And Justice Thomas recently explained that the Article III injury inquiry encompasses both: "An allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk' that the harm will occur." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citing Clapper, 133 S.Ct. at 1147, 1150, n. 5) (emphasis added). In fact, cases proceeding Clapper equated "certainly impending" with the imminence requirement, rather than viewing the former as heightening the Article III inquiry. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006) ("[W]e have no assurance that the asserted injury is 'imminent'—that it is 'certainly impending.'"). The Supreme Court's recent decision in Department of Commerce v. New York puts a fine point on it. There plaintiffs asserted several injuries "all of which turn[ed] on their expectation that reinstating a citizenship question will depress the census response rate and lead to an inaccurate population count." Dept. of Com. v. New York, 139 S. Ct. 2551, 2565 (2019). The Court concluded that Article III standing for the alleged future injuries existed if plaintiffs could show that "the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Id. (emphasis added). Relying on the latter formulation, the Court upheld the district court's conclusion that trial evidence "established a sufficient likelihood" that the inclusion of a citizen question would depress census response rates which would lead to undercounting of noncitizen households and the loss of federal funds. Id. The Supreme Court did not require plaintiffs to identify a "particular" non-citizen census respondent who would refuse to answer based on the citizenship question. Department of Commerce also rejected the Clapper-based argument that harm was insufficiently imminent because it depended the independent action of third parties. The Court was "satisfied" that plaintiffs had "met their burden of showing that third parties will likely react in predictable ways to the citizenship question." Id. at 2566. This was based on the lower court's crediting "the Census Bureau's theory" that a lower response rate among noncitizen households "is likely attributable at least in part to noncitizens' reluctance to answer a citizenship question." Id. As a result, the Court fund that the plaintiffs' theory of standing did "not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of Government action on the decisions of third parties." Id. In this case, Plaintiff doctors and medical associations allege facts that show a sufficiently imminent future Article III injury. Plaintiffs point to FDA's own numbers which establish that between 5-8% of women who take chemical abortion drugs will need surgical intervention. When coupled with the fact that over 50% of abortions today are chemical abortions, the injury to plaintiff doctors who routinely treat emergency conditions resulting from chemical abortions is sufficiently imminent. Further, in contrast to the plaintiffs in Clapper who had never suffered harm, here, past is prologue. Plaintiff doctors attest that they "often" treat patients suffering adverse complications from chemical abortions—several doctors treating emergency medical conditions caused by chemical abortion a dozen times. And as the district court noted at the hearing, these injuries will only increase due to the FDA's approval of mail-order chemical abortions. With respect to future injury, plaintiffs have clearly shown that "there is a substantial risk that the harm will occur." Dept. of Com., 139 S. Ct. at 2565. With respect to traceability, the Plaintiff doctor's harm is not speculation but relies on "the predictable effect of Government action on the decisions of third parties." Id. Some commentators also suggest that there is no limiting principle to Plaintiffs' theory of harm. But the harm suffered by Plaintiff doctors here is not only the harm of being forced to divert time and resources away from their other patients, but also a constitutional injury. They allege that when they are forced to complete an elective abortion by removing unborn children and pregnancy tissue this causes them to feel complicit in that elective abortion and violate their most deeply held moral, medical, and religious beliefs. And Plaintiffs' allegations also fit comfortably within caselaw regarding harm caused to the plaintiff organizations (organizational standing), OCA-Greater Houston v. Texas,867 F.3d 604 (5th Cir. 2017), as well as third-party standing, June Medical Services LLC v. Russo,140 S. Ct. 2103 (2020). Commentators and the FDA fault the Plaintiff doctors for filing suit too late. But it is the FDA that has repeatedly dragged its feet in this case, taking over a decade to respond to Plaintiffs' 2002 citizen petition. And on the same day in March 2016 that it denied the citizen petition challenging the 2000 approval of mifepristone, the agency completely changed the regulatory framework, potentially mooting any potential court review of its decision. This delay-and-moot strategy is to blame for the decades that an unsafe drug has remained on the market. Indeed, the reopening doctrine applies to situations just like this, where the government has reexamined the necessary safeguards—here, by stripping nearly all of them from the REMS, removing in-person visits, changing the dosage, route of administration, and timing of the drugs, and allowing mail-order abortions—that served as the basis to approve the initial agency action. See Sierra Club v. Environmental Protection Agency, 551 F.3d 1019 (D.C. Cir. 2008). The federal courts have a virtually unflagging obligation to exercise the jurisdiction given them by the Constitution. All that is required of Plaintiffs in this case, as in any case, is to establish a sufficiently imminent harm. Plaintiffs' claims have merit and they deserve to see the light of day. I appreciate Hawley's arguments, and her taking the time to respond to my post, but I am not convinced. Starting with standing, AHM relies upon an unbounded theory that would blow apart existing limits on Article III standing. In multiple cases the Court has expressly rejected the argument that an objectively reasonable likelihood of harm is sufficient to show that an alleged injury is "actual or imminent." Indeed, that is the precise standard that a majority rejected in Clapper. Hawley correctly notes that, in Clapper's footnote 5, the Court noted it had "found standing based on a 'substantial risk' that the harm will occur," but she truncates the quote. What Justice Alito wrote for the Court in Clapper was that "In some instances, we have found standing based on a 'substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm." In other words, there have been cases in which the "substantial risk" prompts a party to take actions, at their own expense, to prevent the harm. Standing is appropriate in such cases because these costs born by the plaintiffs themselves constitute a concrete injury. The "substantial risk," by itself, does not. More broadly, the standing argument pressed by AHM would effectively declare open season on health, safety and environmental regulations of all stripes. Under AHM's theory, for instance, an auto repair shop would have standing to challenge an allegedly lax NHTSA auto safety regulation on the grounds that it will result in auto accidents that will result in more vehicles for the shop to repair. Standing does not work that way. Unikowsky makes the same point in his post on the case: the logical implication of the plaintiffs' position is that medical organizations have standing to challenges literally all rules that are alleged to decrease safety in any way. Suppose OSHA lifts some safety standard. A medical organization can sue claiming that (1) this will make workplaces less safe, (2) hypothetical injured employees will come to the doctor-members, and (3) the doctor-members' attention to their current patients will be diverted. Or suppose EPA alters some pollution rule. A medical organization can sue claiming that (1) this will cause people to breathe in more toxins, (2) hypothetical people who breathe in these toxins will seek medical care and come to the doctor-members, and (3) the doctor-members' attention to their current patients will be diverted. Usually slippery slope arguments don't work because courts are able to find a limiting principle, but here, none exists—plaintiffs' argument is logically identical to those arguments. It's interesting to note that the defendants' brief makes this slippery-slope argument, and the plaintiffs' reply brief ignores it altogether. They have to ignore it, because there are no responses to it. I am also unconvinced by Hawley's claim that AHM has filed its suit in time. (For more on why the claims may be time-barred, see this Notice & Comment post by Susan Morse and Leah Butterfield.) There is a six-year statute of limitations for challenging an FDA action, like its approval of mifepristone. Accepting her claim that the FDA "dragged its feet," AHM's suit is still too late. That is, even if we assume that AHM is challenging the FDA's 2016 petition denial (instead of its 2000 approval of mifepristone), the statute of limitations on that claim ran in March 2022, and AHM's suit was not filed until November. AHM wants to claim that it can challenge the FDA's 2000 approval of mifepristone because in 2021 the FDA denied their 2019 challenge to FDA's 2016 approval of a supplemental petition loosening restrictions on mifepristone. This argument rests on the claim that the FDA's 2016 action "reopened" the FDA's 2000 approval decision, but (under the relevant reopening doctrine precedents), the FDA did nothing of the kind. For good or ill, the FDA in 2016 was not considering whether it properly approved mifepristone in 2000. It was only considering whether access to mifepristone should be expanded further by loosening the restrictions on its prescription and distribution. Not only can AHM not claim that the FDA actually reopened its prior administrative decision,  it also cannot claim that FDA's actions somehow prejudiced its ability to challenge the FDA's decision (a claim the Sierra Club was able to make in the D.C. Circuit case upon which Hawley relies). As with my prior post, none of my claims are dependent upon any particular view of the merits. Whether or not the FDA should have approved mifepristone in 2000, and whether or not the FDA should continue to allow mifepristone on the market today, AHM's suit should fail on jurisdictional grounds. The post AHM v. FDA: A Contrary View and a Rejoinder appeared first on Reason.com.

Several commenters asked: If AI companies don't have a copyright in works created by their programs, how can they be held liable under defamation law? Defamation law and copyright law are two different bodies of law, aimed at serving different interests, and with different definitions. That's why people can routinely be sued for defamation even when their works aren't copyright protected. For instance, [1.] The phrase "John Smith is a convicted child molester" is a short and simple phrase that's uncopyrightable. (Even if some highly creative short phrases might be copyrightable, the combination of a preexisting name and the preexisting "is a convicted child molester" phrase certainly isn't copyrightable.) Yet it could indeed be defamatory. [2.] If Alan Author writes a libel of Paula Plaintiff (pro tip: never libel people whose names start with P), and Donna Defendant copies Alan's libel, that could indeed be defamatory, if Donna has the requisite mental state—even though the copyright is owned by Alan, not by Donna. (That's true regardless of whether Donna copied Alan's work with his permission, engaged in fair use, or infringed Alan's work.) This actually often happens, when Donna is a newspaper publisher who publishes Alan's op-ed. (Newspapers often publish op-eds by people who aren't their employees, without getting an assignment of copyright, but only a nonexclusive license to publish; in that situation, the copyright remains owned by the author, but the newspaper may be independently liable for defamation.) [3.] If I spontaneously say "John Smith is a convicted child molester," and follow it up with five sentences of explanation, that oral statement not protected by copyright because it's not fixed in a tangible medium of expression. But it could be defamatory, assuming the elements of slander are satisfied. In all these examples, the defendants are potentially liable, because defamation law cares about what the defendants communicated, and about whether it's false, reputation-damaging, said with the requisite mental state, and unprivileged. But the defendants aren't copyright owners, because copyright law is concerned with a very different thing (providing the incentive for creative expression fixed in a tangible medium). This doesn't itself tell us that AI companies are liable for their programs' uncopyrighted work, of course; I discuss that in much more detail here. But it does explain, I think, why copyright law has nothing to do with the question. The post Defamation and Copyright appeared first on Reason.com.

From yesterday's decision by Magistrate Judge Barbara Moses (S.D.N.Y.) in Doe v. Black Diamond Capital Mgmt. LLC: Now before the Court is the motion of plaintiff "John Doe" for an order granting leave to proceed under a pseudonym, or in the alternative, to seal his complaint. {[H]is brief does not discuss the standards for sealing judicial documents in this Circuit, nor otherwise flesh out this point.} For the reasons that follow, the motion will be denied…. Plaintiff previously suffered from an opiate addiction. Additionally, he was arrested in 2014, for drug possession, but "successfully completed a drug treatment program and was never convicted of any crime." As of April 19, 2022—the date on which he filed this action—plaintiff had been sober for five and a half years. Plaintiff alleges that on June 21, 2021, he was contacted by an executive search firm, SG Partners, regarding an Associate position on the Private Equity Team at defendant Black Diamond Capital Management (BDCM). [He got an offer, but it was then rescinded after he informed BDCM of his past addiction. -EV] [Plaintiff sued under the Americans with Disabilities Act] (asserting that his prior addiction constitutes a disability cognizable under 42 U.S.C. § 12102(1)(A)), the New York State Human Rights Law, and the New York City Human Rights Law…. [P]laintiff argues that litigating under his true name would cause "embarrassment to himself and his family," due to the "societal stigma commonly associated with addiction," and damage to his current and future job prospects, because "[t]he industry in which Plaintiff sought employment (and which he maintains employment currently) is not as large as some may think, and Plaintiff has a legitimate fear that his current and future job prospects may be negatively impacted if his former addiction is revealed." He adds that since he litigated before the EEOC in his own name, BDCM already knows his true identity, and has been supplied with all of his "filed charge materials" from the EEOC…. Ordinarily, "[t]he title of [a] complaint must name all the parties." This rule, "though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings" and "cannot be set aside lightly." It also safeguards "the 'public's common law right of access to judicial proceedings' which is a right 'supported by the First Amendment.'" Accordingly, there is a strong presumption that litigants must proceed under their true names…. Courts in this Circuit, faced with a request by a party to proceed anonymously or pseudonymously, balance that party's privacy concerns against "both the public interest in disclosure and any prejudice to the defendant" …. The Court does not doubt that plaintiff considers his history of drug addiction and his 2014 arrest to be both sensitive and personal. However, this case does not involve any of narrow categories that courts in this Circuit have recognized as so "highly sensitive" as to warrant anonymity. See, e.g., Doe v. Skyline Automobiles (S.D.N.Y. 2019) (noting that "cases relating to birth control, abortion, homosexuality, welfare rights of illegitimate children, and abandoned families" have been found to be "highly sensitive and of a personal nature," but "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym"); Michael v. Bloomberg L.P. (S.D.N.Y. Feb. 11, 2015) (rejecting request to proceed anonymously in wage and hour case because it was not "the type of unusual case involving matters of a highly sensitive or personal nature—i.e., claims involving sexual orientation, pregnancy, or minor children—in which courts have justified anonymous plaintiffs proceeding pseudonymously"). Tellingly, plaintiff does not cite a single case from within the Second Circuit to support his contention that his past addiction and arrest record qualify as "highly sensitive" under the Sealed Plaintiff standard. Nor has the Court located any such authority. Plaintiff's fear of embarrassment to himself and his family, while plausible, does not tip the [analysis] in his favor. It is well-settled that "claims of public humiliation and embarrassment" are "not sufficient grounds for allowing a plaintiff in a civil suit to proceed anonymously." Similarly, plaintiff's categorization of his past addiction as a disability does not alter the calculus. Disability is not typically considered "highly sensitive," and in any event must be pleaded—and hence disclosed—in every disability discrimination lawsuit. See, e.g., Doe v. Trustees of Columbia Univ. in City of New York (S.D.N.Y. 2021) (plaintiff with Asperger syndrome, suing for disability discrimination, was not entitled to proceed anonymously); Vega v. HSBC Sec. (USA) Inc. (S.D.N.Y. 2019) (plaintiff who claimed discrimination based on major depressive disorder and attention deficit disorder was not entitled to proceed under a pseudonym because, although his disability was "personal in nature," it was not "highly sensitive")…. Plaintiff argues that if he litigates this action under his own name he "could face retribution in the industry in which he works," and thus that he has a "legitimate fear" that his job prospects "may be negatively impacted if his former addiction is revealed." He is also "concerned that disclosure of his identity and history of addiction would cause additional anxiety and stress and would aggravate his illness and possibly cause a relapse.". However, both species of harm are described in only in general, conclusory terms, ungrounded in any specifics (beyond plaintiff's allegations as to his experience at BDCM) and unsupported by any evidence. Consequently, even though the potential harm to his job prospects is the same kind of harm that plaintiff brought this action to remedy, neither the second nor the third factor supports his request for leave to proceed anonymously…. "Without corroboration from medical professionals . . . [plaintiff's] general allegation of potential trauma is 'mere speculation' about a risk of psychological injury that cannot support her motion to proceed under a pseudonym." Even where plaintiffs have presented affidavits, courts frequently reject claims of psychological harm and career damage where the affidavits are vague or speculative. Here, there is no evidence at all to support plaintiff's contention that pursing this case in his own name "could" damage his job prospects and "would" cause additional anxiety that could "possibly" cause a relapse…. [A] defendant is [also] always at a disadvantage when sued by an anonymous plaintiff, such that it must "defend [itself] publicly [before a jury] while plaintiff could make [his] accusations from behind a cloak of anonymity." Moreover, if the case goes to trial, a judicial grant of anonymity may imply that plaintiff is more credible, meriting "extra-solicitous treatment," and further "disadvantage Defendants at all stages of litigation, including settlement, discovery, and trial." … [P]laintiff contends … that forcing him to sue publicly would contravene sound public policy because it would effectively discourage those with addiction ("a form of mental illness") from publicly pursuing their legal claims. This argument proves too much. Denying anonymity to a plaintiff who prefers it will inevitably have some chilling effect on the willingness of such a plaintiff to sue at all. This is true not only for plaintiffs with mental illness but also for those who were sexually assaulted, those who were falsely arrested or improperly convicted, those who were discriminated against based on sexual orientation or gender identity, and many other plaintiffs who have suffered harms that can and should be redressed through litigation. There is thus no need for the Court to consider the potential chilling effect on a specific group of potential litigants separately from its application of the Sealed Plaintiff balancing test, which already "requires a district court to exercise its discretion in the course of weighing competing interests." In Rapp v. Fowler (S.D.N.Y. 2021), plaintiff C.D.—who alleged that he was sexually abused, when he was 14 years old, by a well-known adult actor—made a similar plea, arguing "that there is a competing public interest in keeping the identity of those who make sexual assault allegations anonymous so that they are not deterred from vindicating their rights." Further, C.D. (unlike plaintiff here) advised that he would discontinue his claims, to protect his mental health, if the motion for leave to proceed anonymously were denied. As the Rapp court explained, however, its job was to balance the interests [relevant to a pseudonymity claim] (including the plaintiff's), not to make sure that C.D. would persist in his claims. "Though C.D. is correct that the public generally has an interest in protecting those who make sexual assault allegations so that they are not deterred from vindicating their rights, it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature." So too here. The fact that plaintiff's addiction can be characterized as mental illness does not lend additional weight to his motion for leave to proceed anonymously…. The post No Pseudonymity in Employment Lawsuit Claiming Discrimination Based on Past Opiate Addiction appeared first on Reason.com.

The West Virginia legislature has enacted a version of the Religious Freedom Restoration Act (RFRA). (H/T Religion Clause) But there are several exceptions to the rule: (2) Nothing in this article may be construed to create a cause of action by an employee against a nongovernmental employer; nor may anything in this article be construed to constitute a defense to any claim based upon a refusal to provide emergency medical services as required by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd; nor may anything in this article be construed to protect actions or decisions to end the life of any human being, born or unborn, including, but limited to, any claim or defense arising out of a violation of §16-2F-1 et seq., §16-2I-1 et seq., §16-2M-1 et seq., §16-2O-1, §16-2P-1, §16-2Q-1, §16-2R-1 et seq., §16-5-22, §30-1-26, §33-42-8, or §61-2-8 of this code. Here, West Virginia is trying to get ahead of the post-Dobbs litigation in other contexts. For example, in Indiana and other states, abortion rights groups have invoked RFRAs to challenge abortion laws. This option would not be viable in West Virginia. I discuss the religious liberty and abortion in a new article, co-authored with Howie Slugh and Tal Fortgang. The post West Virginia Legislature Enacts RFRA, With Abortion Carveout appeared first on Reason.com.

Forget March Madness! Yesterday, the Harlan Institute and Ashbrook held the Round of 4 for the OT 2022 Virtual Supreme Court competition. The top four teams presented oral arguments in Students for Fair Admission v. UNC. We were honored to have three distinguished jurists preside: Judge Alice Batchelder (CA6), Judge Eric Murphy (CA6), and Judge Ken Lee (CA9). These students could have competed and prevailed in any law school moot court competition. They were remarkable. Match #1 Team 11696 v. Team 11695 Match #2 Team 11762 v. Team 12823 The top two teams will face off against each other in person on April 24 in Washington, D.C. The championship round will be held at the Georgetown Supreme Court Institute. The post Harlan Institute-Ashbrook Virtual Supreme Court—Round of 4 appeared first on Reason.com.

Contempt is a curious creature of the courts. This inherent authority empowers judges to take all manner of actions against parties, including incarceration. Indeed, this power is so broad that a federal judge can order the prosecution of a party, even if the Department of Justice declines to bring the case. Consider Federal Rule of Criminal Procedure 42: The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt. This language is not optional, it is mandatory. The Court "must" make this request of DOJ, or in the alternative, "must" appoint another prosecutor. I suspect it is fairly rare that the government declines to bring a contempt prosecution. One such recent case arose in South Dakota. A district court judge held a United States Marshal in contempt of court, and, unsurprisingly, DOJ declined to prosecute another member of the federal government. As a result, the court appointed its own prosecutor, then promptly recused from the case. That recusal at least eliminated an inherent conflict of interest. I don't think a judge can remain a neutral arbiter if he appointed the prosecutor. Ultimately, the newly-appointed judge dismissed the contempt case. But in another, far-more-high-profile case, a federal judge in Manhattan chose a different path. Readers of this blog will likely be familiar with Steven Donziger. During the 1990s, Donziger represented various Indian tribes from Ecuador who sued Texaco/Chevron for polluting the Amazon rainforest. An Ecuadorian court entered a $8.6 billion judgment against Chevron. But, it turns out, Donziger procured that judgment through fraud and bribery. The federal courts found that Donziger was liable for racketeering, and the judgment was deemed unenforceable. Donziger was later disbarred. I had actually forgotten about Donziger until I recently visited the University of Texas Law School. I noticed a flyer for some organization named GRITS (Getting Radical in the South). Donziger was apparently a keynote speaker at this conference. Go figure. He probably got a better reception than Judge Duncan did. Anyway, that background brings us to Monday's order list. The Supreme Court denied certiorari in Donziger v. United States. Justice Gorsuch dissented, joined by Justice Kavanaugh. This case was not a direct appeal of Donziger's RICO judgment. Rather, it was an appeal from Donziger's contempt proceeding. Gorsuch describes the unusual posture: [Chevron] also won a constructive trust on all assets Mr. Donziger received in this or any country as a result of the Ecuadorian judgment. Ibid. To enforce that trust, the district court granted Chevron discovery into Mr. Donziger's holdings and ordered him to surrender all of his electronic devices for forensic imaging. When Mr. Donziger failed to comply fully with the court's orders, it held him in criminal contempt and referred the matter to the U. S. Attorney's Office for prosecution. After some deliberation, however, the U. S. Attorney "'respectfully declined'" to take up the case. Ibid. (alteration omitted). What happened next? The District Court, relying on Rule 42, appointed its own prosecutors: Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor's office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Putting aside the separation of powers for a moment, there is something of an ethical problem. How can a trial judge remain neutral in a prosecution where he personally appointed the very prosecutors who are bringing the charges? This regime blurs the boundaries between the bench and bar. Throughout the proceeding, Donziger objected, and argued that the court's appointment of the prosecutors was unconstitutional: Throughout these proceedings and on appeal, Mr. Donziger objected. He argued that the district court had no lawful authority to override the Executive Branch's non prosecution decision and that our Constitution's separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them. The Second Circuit affirmed, over Judge Menashi's dissent. The Supreme Court has sort-of approved of this practice. Gorsuch, in dissent, contended that these precedents are inconsistent with recent separation of powers decisions, including Collins v. Yellen, Arthrex, Seila Law, and Lucia: In Young v. United States ex rel. Vuitton et Fils S. A. (1987), this Court approved the use of court-appointed prosecutors as a "last resort" in certain criminal contempt cases. But that decision has met with considerable criticism. As Members of this Court have put it, the Constitution gives courts the power to "serve as a neutral adjudicator in a criminal case," not "the power to prosecute crimes." Id. (Scalia, J., concurring in judgment).The Second Circuit acknowledged, too, that Young stands in considerable "tension" with this Court's subsequent separation-of-powers decisions. Here, Gorsuch explains, the prosecutor did not exercise the judicial power. Rather, the prosecutor exercised executive power: By contrast, "[e]very court and every party" has acknowledged that the court-appointed prosecutors in this case did not exercise judicial power. 38 F. 4th, at 306 (Menashi, J., dissenting). Instead, all agree, the court-appointed prosecutors here exercised "executive power" and were accountable through the Executive Branch's chain of command running ultimately to the President. Id., at 306– 307 (emphasis added). By its own terms, then, Young simply does not speak to Mr. Donziger's situation. And as a result of this conflict, there were two briefs filed on behalf of the "United States." The real United States, and the pseudo United States, as appointed by the special prosecutor: Highlighting the confused (but surely executive) nature of the prosecution in this case, the "United States" supplied the Second Circuit with two different briefs offering different theories. One brief came from the court-appointed prosecutors, another from lawyers within the Department of Justice. And the trial court favored the view of the pseudo United States. Next, Gorsuch turned to the Appointments Clause. The Second Circuit found that the prosecutor was an "inferior officer" of the United States. But such officers can only be appointed by the courts of law when Congress "vests" courts with that authority. but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Has Congress vested such authority in the courts? Well Rule 42 was adopted by the Supreme Court, so that is not a direct delegation by Congress. But the Federal Rules of Criminal Procedure were adopted pursuant to the Rules Enabling Act. Gorsuch writes that the REA doesn't cut it. Second, courts have adopted Rule 42 under the Rules Enabling Act. That statute provides that any rules of court promulgated under its terms "shall not abridge . . . or modify any substantive right." 28 U. S. C. §2072(b). Yet, the manner in which the Second Circuit applied Rule 42 had just that impermissible effect. The "decision of a prosecutor . . . not to indict" is one that belongs squarely within "the special province of the Executive Branch." Heckler v. Chaney (1985) (emphasis added). This "structural principl[e]" serves to "protect the individual" just as much as the Executive Branch. Bond v. United States (2011). By interpreting Rule 42 as authorizing courts to make their own decision to initiate a prosecution—and even to override a contrary decision by the Executive Branch—the Second Circuit's opinion not only arrogated a power to the Judiciary that belongs elsewhere. It allowed the district court to assume the "dual position as accuser and decisionmaker"—a combination that "violat[es the] due process" rights of the accused. Williams v. Pennsylvania (2016). I've long thought that the Rules Enabling Act violated the non-delegation doctrine. If, in fact, this statute actually vested the courts of law with the power to appoint inferior officers that exercise executive power, then yes, the REA is unconstitutional. Ethan Lieb recently contended that the Federal Rules of Evidence may be unconstitutional on non-delegation grounds. Chad Squitieri raised similar issues with regard to the major question doctrine. In Donziger's case, the Department of Justice offered another argument: the prosecutors are not "inferior officers" at all, but are "nonofficer employees in the Executive Branch." Gorsuch argues this position is inconsistent with Morrison v. Olson: It is hard to square with our own precedent. See Morrison v. Olson (1988) (holding an independent counsel to be an inferior officer). And even overlooking all that, the notion that the Constitution allows one branch to install non officer employees in another branch would come as a surprise to many. Who really thinks that the President may choose law clerks for my colleagues, that we can pick White House staff for him, or that either he or we are entitled to select aides for the Speaker of the House? In Morrison, Chief Justice Rehnquist wrote, "It is clear that [the independent counsel] is an 'officer' of the United States, not an 'employee.'" But the court-appointed prosecutors hold far less power than did Alexia Morrison. Seth Barrett Tillman and I discussed the concept of "employee of the United States" in the context of Robert Mueller. This issue is complicated. Donziger's cert petition was initially distributed for the January 13 conference. It was rescheduled, and then was distributed for six conferences before the denial. Presumably, Justice Gorsuch tried to get two more votes for certiorari. In a normal case, Justices Sotomayor and Jackson could be expected to go along with a grant on a matter of such concern to criminal justice. Even counsel had cross-ideological appeal: Steve Vladeck was counsel of record, and he was joined by lawyers from Schaerr/Jaffe. But alas, this case involved the separation of powers, and potentially the non-delegation doctrine.  Indeed, it is commendable that two of the Court's more conservative members were willing to stand up for Donziger–a celebrity on the left, but a scourge on the right. The liberal justices, not so much. Justices on the right routinely pivot to the left. But the Justices on the left are seldom ambidextrous. Mr. Donziger's contempt citation will stand. The post Do Court-Appointed Prosecutors Violate The Separation of Powers? appeared first on Reason.com.

Daily News and Updates for March 27th, 2023: “Hospital Photo of John Fetterman Goes Viral, But There's Just 1 Problem: 'This Is Insane'" The post Daily News and Updates for March 27th, 2023: “Hospital Photo of John Fetterman Goes Viral, But There’s Just 1 Problem: ‘This Is Insane'” appeared on Stillness in the Storm.

Just published in volume 2, issue 2 of the Journal of Free Speech Law, and available here; here's the Introduction: The academy is rife with contention over the conditioning of faculty ap­pointments on an attestation to or a record of support for a secular trinity: "Di­ver­si­ty, Equity, Inclusion." These DEI policies seem to be grounded in a syllogism the major premise of which is this: The student population served by the institution includes members of historically marginalized minority groups, long ignored, slighted, or discriminated against societally and, possibly, by the institution itself. The minor premise: It should be part of the university's mission significantly to address these groups' needs and aspirations. The conclusion: Every faculty mem­ber, as a condition of appointment, must further that aspect of the in­stitu­tion's mission in their teaching, research, and service—in one or more. The policy's emphasis is on the imperative. What follows will present for study a case in point, the policy adopted at the University of Illinois, the grounding and function of which would seem to be concordant with the rationale undergirding DEI policies elsewhere. The DEI policy requires faculty to satisfy those reviewing their dossiers for tenure and promotion that in research, teaching, and service to the university and to the larger community the faculty member has compiled a satisfactory record of activity in support of diversity, equity, and inclusion. This would seem to resonate sym­path­etically with Justice Powell's influential opinion in the Bakke case con­cerning the cognizance of race in the admissions process of a public sector law school. Powell opined that the university could take account of race when part of a process that took applicants whole, as individuals who present themselves in near infinite variety in capacities, experience, and interests. But that is not what DEI is about. The policy's notion of diversity requires that the persons subject to its concern must be fit into categories identified by a group attribute and by goals attributed to the group. As the ensuing unpacking of the policy makes no small demand on the reader, it would be well at the outset to anticipate the result. As will become clear, the wrongs wrought by the policy are three: First, by folding socio-political goals into the process for tenure and promotion the policy conflates those ends with professional qualifications. This conflation infringes academic freedom. Further, were it to become acceptable for a university to commandeer its faculty toward socio-political ends, made part of the faculty's professorial obligations, there would be no principled reason why those who fund the institution—the legislatures—should not impose those socio-political ends that they hold dear. Second, for the DEI rules to withstand constitutional muster, the faculty member being evaluated, who is required to make a record of DEI activity, and those evaluating that record must be able to discern with clarity what sorts of activities in support of what groups with what goals and to what extent will satisfy the mandate. The clarity of guidance on the former, what groups with what goals, is questionable; on the latter, the extent of engagement, is nonexistent. Third, and paradoxically, were clarity to be addressed what would be made even more clear is that continuance on the faculty is conditioned on support of groups to further favored political or social ends. This infringes on the scholar's political and private life; it is illegitimate from an institutional perspective and un­law­ful from a constitutional one. The University of Illinois' DEI policy will be explored. The academic freedom and constitutional implications will then be examined. Because much of the public debate on both accounts has turned on an analogy to the loyalty oath controversy of sixty years ago, out of which the Supreme Court's reflections on the relationship between academic freedom and the first amendment grew, the oath will be taken up as a useful lens through which DEI can be considered. The post Journal of Free Speech Law: "Diversity! Mandating Adherence to a Secular Creed," by Prof. Matthew Finkin (Illinois) appeared first on Reason.com.

I am not one to disagree with Eugene about an area within his area of expertise, but I confess I have a different reaction to his view, expressed in his draft paper, that AI program outputs "would reasonably appear to state or imply assertions of objective fact." Take OpenAI's ChatGPT.  Eugene argues in his draft at page 8 that OpenAI's business model is premised on ChatGPT outputs being factually correct: OpenAI has touted ChatGPT as a reliable source of assertions of fact, not just as a source of entertaining nonsense. . . .  The AI companies' current and future business models rests entirely on their programs' credibility for producing reasonable accurate summaries of the facts. When OpenAI helps promote ChatGPT's ability to get high scores on bar exams or the SAT, it's similarly trying to get the public to view ChatGPT's output as reliable. Likewise when its software is incorporated into search engines, or into other applications, presumably precisely because it's seen as pretty reliable. It can't then turn around and, in a libel lawsuit, raise a defense that it's all just Jabberwocky. Naturally, everyone understands that AI programs aren't perfect. But everyone understands that newspapers aren't perfect, either—yet that can't be enough to give newspapers immunity from defamation liability; likewise for AI programs. And that's especially so when the output is framed in quite definite language, complete with purported quotes from respected publications. Here's my question: Is the reasonable observer test about business models, or is it about what people familiar with the service would think?  Because if the test is about what normal observers would think, it seems to me that no one who tries ChatGPT could think its output is factually accurate. That's what makes ChatGPT distinctive and interesting, I think. It combines good writing and ease of language that sounds real, on one hand, with obvious factual inaccuracies, on the other.  It's all style, no substance. The false claims of fact are an essential characteristic of the ChatGPT user experience, it seems to me.  If you spend five minutes querying it, there's no way you can miss this. For example, back in January, I asked ChatGPT to write a bio for me.  This should be easy to do accurately, as there are lots of online bios of me if you just google my name.   ChatGPT's version was well written, but it had lots and lots of details wrong. For example, I won't have it be writing my bio any time soon. pic.twitter.com/2b8H01jzxG — Orin Kerr (@OrinKerr) January 13, 2023 To correct the errors in the ChatGPT output, I joined Berkeley in 2019, not 2018; I didn't go to Yale Law School; I didn't clerk for Judge O'Scannlain; I wasn't an appellate lawyer at DOJ; there is no 2019 edition of my Computer Crime Law casebook, and it certainly wouldn't be the 2nd edition, as we're now on the 5th edition already; I'm not a fellow at the American College of Trial Lawyers; and I've never to my knowledge been an advisor to the U.S. Sentencing Commission.  (Some would say I'm also not an invaluable asset to the law school community, but let's stick to the provable facts here, people.) My sense is that these kinds of factual errors are ubiquitous when using ChatGPT.  It has style, but not substance.  ChatGPT is like the student who didn't do the reading but has amazing verbal skills; it creates the superficial impression of competence without knowledge.  Maybe that isn't what OpenAI would want it to be.  But I would think that's the conclusion a typical user gets pretty quickly from querying ChatGPT. The post Are AI Program Outputs Reasonably Perceived as Factual? A Response to Eugene appeared first on Reason.com.

A bunch of comments to my Large Libel Models posts suggest that, when users believe (say) ChatGPT-4's fake quotes about others, the true responsibility is on the supposedly gullible users and not on OpenAI. I don't think this is consistent with how libel law sees things, and I want to explain why. Say that the Daily Tattler, a notoriously unreliable gossip rag, puts out a story about you, saying that "rumor has it that Dr. [you] had been convicted of child molestation ten years ago in Florida, as the Miami Herald reported." This is utterly false, and the result of careless reporting on their part; there was no conviction and no Miami Herald report. Yet some people believe the story, and as a result stop doing business with you. (Say you're a doctor, so your business relies on people's confidence in you.) Now there are three parties here we can think about. There's you, and you're completely innocent. There's the Daily Tattler, which published a story that's negligently false. And there are the people who stop doing business with you. They too might be viewed negatively: Perhaps they're gullible for believing what the Daily Tattler says. Perhaps they're unfair in not looking things up themselves (maybe checking the Miami Herald's archives), or calling you and asking your side of the story. But the premise of libel law is that you can sue the Daily Tattler, even though, in a perfect world, the readers would have done better. You can't, after all, sue the readers—it's not a tort for them to avoid you based on their gullibility. And the Daily Tattler is at fault for negligently putting out the false assertion of fact that could deceive the unwise reader. Yes, perhaps people should be educated not to trust gossip rags. But so long as readers do in some measure trust them (at least as to matters where the reader lacks an incentive to do further research), libel law takes that into account. Now to be sure the law doesn't always allow liability for publishers based on all unwise reactions by readers. In particular, the question whether the statement "state[s] or impl[ies] assertions of objective fact" turns on the reaction of a reasonable reader. A statement that a reasonable reader would recognize is parody, for instance, wouldn't be actionable even if some readers might miss the joke. But when it comes to statements that a reasonable reader would perceive as factual assertions, they are potentially actionable if they are false and reputation-damaging. That the reader might be unwise for trusting the source doesn't get the source off the hook. So if you sue the Daily Tattler for negligently publishing the false allegation against you, the Tattler can't turn around to say, "It's not our fault! It's the fault of the stupid readers who trusted us, notwithstanding our having specifically labeled this as 'rumor.'" Under well-established libel law, it would lose. Now maybe there's some public policy reason why OpenAI should be off the hook for ChatGPT-4  communications, because it has warned people that the communications may be inaccurate, when the Daily Tattler isn't off the hook for its communications, despite its warning people that the communications may be inaccurate (since they're just rumor). But standard libel law seems to take a different view. [* * *] Here's what Part I.C of my Large Libel Models? Liability for AI Output article has to say about the general legal background here; note, though, that I had posted an earlier version of that chapter last week. AIs could, of course—and probably should—post disclaimers that stress the risk that their output will contain errors. Bard, for instance, includes under the prompt box, "Bard may display inaccurate or offensive information that doesn't represent Google's views." But such disclaimers don't immunize AI companies against potential libel liability. To begin with, such disclaimers can't operate as contractual waivers of liability: Even if the AIs' users are seen as waiving their rights to sue based on erroneous information when they expressly or implicitly acknowledge the disclaimers, that can't waive the rights of the third parties who might be libeled. Nor do the disclaimers keep the statements from being viewed as actionable false statements of fact. Defamation law has long treated false, potentially reputation-damaging assertions about people as actionable even when there's clearly some possibility that the assertions are false. No newspaper can immunize itself from libel lawsuits for a statement that "Our research reveals that John Smith is a child molester" by simply adding "though be warned that this might be inaccurate" (much less by putting a line on the front page, "Warning: We may sometimes publish inaccurate information"). Likewise, if I write "I may be misremembering, but I recall that Mary Johnson had been convicted of embezzlement," that could be libelous despite my "I may be misremembering" disclaimer. This is reflected in many well-established libel doctrines. For instance, "when a person repeats a slanderous charge, even though identifying the source or indicating it is merely a rumor, this constitutes republication and has the same effect as the original publication of the slander."[1] When speakers identify something as rumor, they are implicitly saying "this may be inaccurate"—but that doesn't get them off the hook. Indeed, according to the Restatement (Second) of Torts, "the republisher of either a libel or a slander is subject to liability even though he expressly states that he does not believe the statement that he repeats to be true."[2] It's even more clear that a disclaimer that the statement merely may be inaccurate can't prevent liability. Likewise, say that you present both an accusation and the response to the accusation. By doing that, you're making clear that the accusation "may [be] inaccurate." Yet that doesn't stop you from being liable for repeating the accusation. To be sure, there are some narrow and specific privileges that defamation law has developed to free people to repeat possibly erroneous content without risk of liability, in particular contexts where such repetition is seen as especially necessary. For instance, some courts recognize the "neutral reportage" privilege, which immunizes "accurate and disinterested" reporting of "serious charges" made by "a responsible, prominent organization" "against a public figure," even when the reporter has serious doubts about the accuracy of the charges.[3] But other courts reject the privilege altogether.[4] And even those that accept it apply it only to narrow situations: Reporting false allegations remains actionable—even though the report makes clear that the allegations may be mistaken—when the allegations relate to matters of private concern, or are made by people or entities who aren't "responsible" and "prominent."[5] It certainly remains actionable when the allegations themselves are erroneously recalled or reported by the speaker. The privilege is seen as needed precisely because of the general rule that—absent such a privilege—passing on allegations can be libelous even when it's made clear that the allegations may be erroneous. And the privilege is a narrow exception justified by the "fundamental principle" that, "when a responsible, prominent organization . . . makes serious charges against a public figure," the media must be able to engage in "accurate and disinterested reporting of those charges," because the very fact that "they were made" makes them "newsworthy."[6] Likewise, the narrow rumor privilege allows a person to repeat certain kinds of rumors to particular individuals to whom the person owes a special duty —such as friends and family members—if the rumors deal with conduct that may threaten those individuals. (This stems because from what is seen as the special legitimacy of people protecting friends' interests.[7]) This is why, for instance, if Alan tells Betty that he had heard a rumor that Betty's employee Charlie was a thief, Alan is immune from liability.[8] But the privilege exists precisely because, without it, passing along factual allegations to (say) a stranger or to the general public—even with an acknowledgement that they "may [be] inaccurate"—may be actionable.[9] Now a disclaimer that actually describes something as fiction, or as parody or as a hypothetical (both forms of fiction), may well be effective. Recall that, in libel cases, a "key inquiry is whether the challenged expression, however labeled by defendant, would reasonably appear to state or imply assertions of objective fact."[10] It's not actionable to state something that obviously contains no factual assertion at all—as opposed to just mentioning a factual assertion about which the speaker expresses uncertainty, or even disbelief.[11] But neither ChatGPT nor Bard actually describe themselves as producing fiction, since that would be a poor business model for them. Rather, they tout their general reliability, and simply acknowledge the risk of error. That acknowledgment, as the cases discussed above show, doesn't preclude liability. [1] Ringler Associates Inc. v. Maryland Casualty Co., 80 Cal. App. 4th 1165, 1180 (2000). [2] Restatement (Second) of Torts § 578 cmt. e; see also Martin v. Wilson Pub. Co., 497 A.2d 322, 327 (R.I. 1985); Hart v. Bennet, 267 Wis. 2d 919, 944 (App. 2003). [3] Edwards v. National Audubon Soc'y, 556 F.2d 113 (2d Cir. 1977). A few later cases have extended this to certain charges on matters of public concern against private figures. Others have rejected the privilege as to statements about private figures, without opining on its availability as to public figures. See, e.g., Khawar v. Globe Int'l, Inc., 965 P.2d 696, 707 (Cal. 1998); Fogus v. Cap. Cities Media, Inc., 444 N.E.2d 1100, 1102 (App. Ct. Ill. 1982). [4] Norton v. Glenn, 860 A.2d 48 (Pa. 2004); Dickey v. CBS, Inc., 583 F.2d 1221, 1225–26 (3d Cir.1978); McCall v. Courier-J. & Louisville Times, 623 S.W.2d 882 (Ky. 1981); Postill v. Booth Newspapers, Inc., 325 N.W.2d 511 (Mich. App. 1982); Hogan v. Herald Co., 84 A.D.2d 470, 446 (N.Y. App. Div. 1982). [5] A few authorities have applied this privilege to accurate reporting of allegations on matters of public concern generally, but this appears to be a small minority rule. Barry v. Time, Inc., 584 F. Supp. 1110 (N.D. Cal. 1984); Tex. Civ. Code § 73.005. [6] Edwards, 556 F.2d at 120. Likewise, the fair report privilege allows one to accurately repeat allegations that were made in government proceedings, because of the deeply rooted principle that the public must be able to know what was said in those proceedings, even when those statements damage reputation. But it too is sharply limited to accurate repetition of allegations originally made in government proceedings. [7] Restatement (Second) of Torts § 602. [8] Id. cmt. 2. Another classic illustration is a parent warning an adult child about a rumor that the child's prospective spouse or lover is untrustworthy. Id. cmt. 1. [9] See, e.g., Martin v. Wilson Pub. Co., 497 A.2d 322, 327 (R.I. 1985). [10] Takieh v. O'Meara, 497 P.3d 1000, 1006 (Ariz. Ct. App. 2021). [11] See, e.g., Greene v. Paramount Pictures Corp., 813 F. App'x 728, 731–32 (2d Cir. 2020). Even then, a court might allow liability if it concludes that a reasonable person who knows plaintiff would understand that defendant's ostensible fiction is actually meant to be as roman à clef that conveys factual statements about plaintiff. The presence of a disclaimer wouldn't be dispositive then. See, e.g., Pierre v. Griffin, No. 20-CV-1173-PB, 2021 WL 4477764, *6 n.10 (D.N.H. Sept. 30, 2021). The post Defamation, Responsibility, and Third Parties appeared first on Reason.com.

In recent years, the Supreme Court has overruled several precedents. However, the Court has largely left in place the seminal doctrine from the Warren Court. Rather, the Justices have clawed back at decisions from the Burger Court. Roe v. Wade was overruled, but Griswold v. Connecticut remains safe. Lemon v. Kurtzman is gone, but Engel v. Vitale abides. Rucho v. Common Cause overruled Davis v. Bandemer, but Baker v. Carr survives. Janus overruled Abood but did not disturb Railway Employees' Dept. v. Hanson. Franchise Tax Board of California v. Hyatt overruled Nevada v. Hall. Knick v. Township of Scott overruled Willimason County. Obergefell overruled Baker v. Nelson. Wait, scratch that last one. But you get the picture. Another precedent from the Burger Court may soon be on the chopping block: Havens Realty v. Coleman (1982). This case found that an organization can assert an Article III injury based on a "drain of the organization's resources." For example, an organization that sends a "tester" to determine if there was a violation of the law could claim the money needed to send the tester was an injury in fact. This injury seems to be self-inflicted, as that term is understood today: anyone can generate standing-on-demand by spending money to investigate the alleged illegal activity. I became intimately familiar with Havens Realty during the early days of the Emoluments Clause litigation. Eventually, the lead plaintiffs were owners of hotels and restaurants that competed with Trump properties. But initially, the lone plaintiff was CREW, a public interest organization. Unsurprisingly, CREW's only basis for standing was Havens Realty. Here is how I described the self-inflicted injury in January 2017: In short, the complaint argues that because CREW is spending time on Trump's emolument issue, they are not able to do things they would otherwise do. Therefore, they are injured under Article III, and can bring suit. In hindsight, CREW would spend four years opposing everything Trump would do, so I'm not sure they could even claim such an injury! And also in hindsight, CREW was found to not have standing in SDNY, and the organization did not appeal that decision. But more importantly, at the time, I did not understand how Havens could be reconciled with more recent standing doctrine, like Spokeo v. Robbins (2016) and Clapper v. Amnesty International (2012). Neither case even cited Havens Realty. Then again, Larry Tribe called my standing arguments a "linguistic sleight of hand." So what did I know? Fast-forward to the TransUnion LLC v. Ramirez (2021). Like Spokeo and Clapper, the Court did not even mention Havens Realty. The case is mentioned in Justice Thomas's dissent, though he focuses on the congressional enactment of the statute, and not the self-inflicted injury question. Today the Supreme Court granted cert in Acheson Hotels v. Laufer. The case involves a so-called "tester." Specifically, a disabled person would visit the website of a hotel that she has no intent of staying at. Then she would sue the hotel for failing to provide enough information about accommodations for disabilities. The cert petition wisely does not ask the Court to squarely overrule Havens Realty. Rather that precedent can be distinguished. But the petition does question how Havens Realty can survive TransUnion. Third, this case presents an issue only this Court can resolve. This case is difficult for lower courts because they must reconcile older Supreme Court case law taking a more lenient view of standing, see Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), with this Court's more recent decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). Indeed, the First Circuit noted that its ruling was in significant tension with TransUnion, but nonetheless deemed Havens Realty to be the on-point binding precedent. As Judge Jordan similarly concluded, "Havens Realty may be inconsistent (in whole or in part) with current standing jurisprudence," but "[f]or now, though, it remains binding precedent that governs here." Arpan, 29 F.4th at 1276 (Jordan, J., concurring). By contrast, the Second, Fifth, and Tenth Circuits have held that TransUnion, not Havens Realty, is the more pertinent precedent. This Court's review is warranted because only this Court can provide guidance on what its own precedents mean. As Judge Newsom put it: "I suspect that the law concerning 'stigmatic injury' will remain deeply unsettled until the Supreme Court steps in to provide additional guidance." Id. at 1287 (Newsom, J., concurring). Finally, the Court should grant certiorari because the First Circuit's decision is wrong. Laufer's abstract desire to ensure compliance with federal law does not give her Article III standing. To the extent Havens Realty survives TransUnion, it is readily distinguishable. In Havens Realty, the plaintiff was personally denied information on the basis of her race, and this Court found standing based on its view that. In many regards, Havens Realty reminds me of the Lemon Test. In all the big Establishment Clause cases, the Court did not rely on Lemon: Marsh v. Chambers, McCreary County, Van Orden, Town of Greece, American Legion, and so on. How could Lemon possibly survive all those cases? Thus, the Court deemed Lemon as "abandoned." Likewise, the Court did not even cite Havens Realty in Spokeo, Clapper, or TransUnion. Has Havens Realty been abandoned? We'll find by June 2024. The post Will Havens Realty Be "Abandoned" Like The Lemon Test? appeared first on Reason.com.

This week and likely next, I'll be serializing my Large Libel Models? Liability for AI Output draft. I had already posted on why I think such AI programs' communications are reasonably perceived as factual assertions, and why disclaimers about possible errors are insufficient to avoid liability. Here, I want to explain why I think § 230 doesn't protect the AI companies, either. [* * *] To begin with, 47 U.S.C. § 230 likely doesn't immunize material produced by AI programs. Section 230 states that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." "[I]nformation content provider" is defined to cover "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."[1] A lawsuit against an AI company would aim to treat it as publisher or speaker of information provided by itself, as an entity "that is responsible, in whole or in part, for the creation or development of [such] information."[2] As the leading early § 230 precedent, Zeran v. AOL, pointed out, in § 230 "Congress made a policy choice . . . not to deter harmful online speech through the . . . route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages."[3] But Congress didn't make the choice to immunize companies that themselves create messages that had never been expressed by third parties.[4] Section 230 thus doesn't immunize defendants who "materially contribut[e] to [the] alleged unlawfulness" of online content.[5] An AI company, by making and distributing an AI program that creates false and reputation-damaging accusations out of text that entirely lacks such accusations, is surely "materially contribut[ing] to [the] alleged unlawfulness" of that created material.[6] Recall that the AI programs' output isn't merely quotations from existing sites (as with snippets of sites offered by search engines[7]) or from existing user queries (as with some forms of autocomplete that recommend the next word or words by essentially quoting them from user-provided content). To be sure, LLMs appear to produce each word based on word frequency connections drawn from sources in the training data. Their output is thus in some measure derivative of material produced by others.[8] But of course all of us rely almost exclusively on words that exist elsewhere, and then arrange them in an order that likewise stems in large part from our experience reading material produced by others. Yet that can't justify immunity for us when we assemble others' individual words in defamatory ways. Courts have read § 230 as protecting even individual human decisions to copy-and-paste particular material that they got online into their own posts: If I get some text that was intended for use on the Internet (for instance, because it's already been posted online), I'm immune from liability if I post it to my blog.[9] But of course if I don't just repost such text, but instead write a new defamatory post about you, I lack § 230 immunity even if I copied each word from a different web page and then assembled them together: I'm responsible in part (or even in whole) for the creation of the defamatory information. Likewise for AI programs. And this makes sense. If Alan posts something defamatory about Betty on his WordPress blog, that can certainly damage her reputation, especially if the blog comes up on Google searches—but at least people will recognize it as Alan's speech, not Google's or WordPress's. Section 230 immunity for Google and WordPress thus makes some sense. But something that is distributed by an AI company (via its AI program) and framed as the program's own output will be associated in the public's mind with the credibility of the program. That may make it considerably more damaging, and would make it fair to hold the company liable for that. Relatedly, traditional § 230 cases at least in theory allow someone—the actual creator of the speech—to be held liable for it (even if in practice the creator may be hard to identify, or outside the jurisdiction, or lack the money to pay damages). Allowing § 230 immunity for libels output by an AI program would completely cut off any recourse for the libeled person, against anyone. In any event, as noted above, § 230 doesn't protect entities that "materially contribut[e] to [the] alleged unlawfulness" of online content.[10] And when AI programs output defamatory text that they have themselves assembled, word by word, they are certainly materially contributing to its defamatory nature. [1] 47 U.S.C. §§ 230(c)(1), (f)(3). [2] I thus agree with Matt Perault's analysis on this score. [Cite forthcoming J. Free Speech L. article.] [3] 129 F.3d 327, 330­–31 (4th Cir. 1997). [4] The statement in Fair Housing Council, 521 F.3d at 1175, that "If you don't encourage illegal content, or design your website to require users to input illegal content, you will be immune," dealt with websites that republish "user[]" "input"—it didn't provide immunity to websites that themselves create illegal (e.g., libelous) content based on other material that they found online. [5] Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1167–68 (9th Cir. 2008) (en banc). Many other courts have endorsed this formulation. Fed. Trade Comm'n v. LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016); Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 410 (6th Cir. 2014); F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1200 (10th Cir. 2009); People v. Bollaert, 248 Cal. App. 4th 699, 719 (2016); Vazquez v. Buhl, 150 Conn. App. 117, 135–36 (2014); Hill v. StubHub, Inc., 219 N.C. App. 227, 238 (2012). [6] If the AI program merely accurately "restat[es] or summariz[es]" material in its training data, even if it doesn't use the literal words, it may still be immune. See Derek Bambauer, Authorbots, 3 J. Free Speech L. __ (2023). But I'm speaking here of situations where the AI program does "produced . . . new semantic content" rather than "merely repackage[ing] existing content." Id. at __. [7] See O'Kroley v. Fastcase, Inc., 831 F.3d 352 (6th Cir. 2016) ("Under [§ 230], Google thus cannot be held liable for these claims — for merely providing access to, and reproducing, the allegedly defamatory text."). [8] See Derek Bambauer, supra note 7, at __; Jess Miers, Yes, Section 230 Should Protect ChatGPT and Other Generative AI Tools, TechDIrt, Mar. 17, 2023, 11:59 am. [9] See, e.g., Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003), superseded in part by statute on other grounds as stated in Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766–67 (9th Cir. 2017); Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006); Phan v. Pham, 182 Cal. App. 4th 323, 324–28 (2010); Monge v. Univ. of Pennsylvania, No. CV 22-2942, 2023 WL 2471181, *3 (E.D. Pa. Mar. 10, 2023); Novins v. Cannon, No. CIV 09-5354, 2010 WL 1688695, *2 (D.N.J. Apr. 27, 2010). [10] Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1167–68 (9th Cir. 2008) (en banc). Many other courts have endorsed this formulation. Fed. Trade Comm'n v. LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016); Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 410 (6th Cir. 2014); F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1200 (10th Cir. 2009); People v. Bollaert, 248 Cal. App. 4th 699, 719 (2016); Vazquez v. Buhl, 150 Conn. App. 117, 135–36 (2014); Hill v. StubHub, Inc., 219 N.C. App. 227, 238 (2012). The post Why § 230 Likely Doesn't Provide Immunity for Libels Composed by ChatGPT, Bard, etc. appeared first on Reason.com.

Some commenters on my Large Libel Model posts have argued that the reason I got false output from my prompts is that I had "primed" the model to suggest that I was looking for something negative. It's true that my prompts asked what various people were accused or convicted of, but those strike me as perfectly plausible queries that people could ask, seeking true information about accusations or convictions, not false or libelous information. Here's an illustration of some Bard queries I just ran, that I think shows how things can happen this way. It ultimately comes up with the following apparently entirely Bard-manufactured claim (I replace my last name with "V." and my first name with "E." just to slightly decrease the risk that this will come up in future queries for my name, and some people—or some bots—will believe it to actually be true; all my prompts to Bard and all its outputs had my full name): E.V. was criticized for hiring a student who had been accused of sexual harassment in a 2018 article in The New York Times. The article, titled "E. V., a Law Professor at U.C.L.A., Hires Student Accused of Sexual Harassment," reported that V. had hired a student who had been accused of sexual harassment to work as a research assistant in his law clinic. The student had been accused of groping a female student at a party and had been suspended from the university for a semester. V. defended his decision to hire the student, saying that he believed in giving people second chances. He also said that the student had been cleared of the sexual harassment charges by the university. The article was widely criticized on social media and in the legal community. Many people accused V. of being insensitive to the victim of sexual harassment and of sending the wrong message to other students who had been accused of sexual misconduct. V. responded to the criticism by saying that he was sorry if anyone was offended by his decision to hire the student. He also said that he would not hire anyone who had been accused of sexual harassment in the future. Again, this is false. I have never been criticized for hiring such a student. I have never, to my knowledge, hired such a student (though I wouldn't in principle categorically refuse to hire someone just because the person had done something bad, and especially just because they had been accused or cleared). I don't even hire research assistants for my clinics. I thus necessarily never apologized for such a decision. I never said I wouldn't hire anyone who had been accused of sexual harassment. And there is no title with that name, or even just the phrase "Hires Student Accused of Sexual Harassment" in the New York Times or other publication. Now let's see how the conversation unfolded: I began just by typing my name ("E. V.," spelled out). This is the sort of thing that an ordinary person who is interested in my biography—perhaps a lawyer who is interested in hiring me as a consultant, or a student who is interested in applying to my clinic, or a reporter who wants a sense of my credentials—might do. I got a largely accurate result, but at the end it said, "V. is a controversial figure, and his views have been criticized by some as being too extreme." I then entered, "In what way has V. been too extreme, according to the criticisms (and please indicate who made those criticisms)." That too seems like something a reasonable searcher might do, once he was informed (correctly) that I have been criticized. This produced various allegations, including the apparently entirely spurious one that the Anti-Defamation League had criticized me for my position on flagburning. Curious, I asked, as others might, "What exactly did the Anti-Defamation League say in condemning V.'s position on flag burning?" (I was curious about this myself, as the hypothetical searcher might be.) I then got some purported quotes that, my searches suggest, were never made by the ADL. I followed up with, "When did the ADL criticize V. this way?" I got some repetition of the made-up quote. I then followed up with, as the hypothetical lawyer/student/reporter might, "What other things have made V. controversial?" I got various statements, some mostly accurate, some mistaken, but, at the end, "V. has also been criticized for his personal behavior, including," "His decision to hire a student who had been accused of sexual harassment, which some people found inappropriate." I then entered, "Who criticized V. for hiring the student who had been accused of sexual harassment, and when and where?," and got the bogus answer quoted at length above. Again, I give this example not because I'm personally worried about my reputation here. (ChatGPT, which is what I started writing about in my Large Libel Model posts, is actually very nice to me, so my posts predate my discovery of the statements here—which in any event are much less potentially reputation-damaging than the many others that I've mentioned in my other posts.) Rather, I want to show just how a normal, plausible search strategy by someone who didn't even start out trying to dig up criticisms could still yield false claims about a particular person, complete with invented quotes. I include below the entire exchange, with my prompts set in bold and italics (the prompts didn't include the prefix "[Prompt:]," which I provide below just for clarity.) [Prompt:] E. V. E. V. is an American legal scholar known for his scholarship in American constitutional law and libertarianism as well as his prominent legal blog The V. Conspiracy. V. is regarded as an expert on the First Amendment. He is the Gary T. Schwartz Distinguished Professor of Law at the UCLA School of Law and is an affiliate at the law firm Schaerr Jaffe. V. was born in Kyiv, Ukraine, and emigrated to the United States with his family when he was seven years old. He received a B.S. in math-computer science from UCLA at age 15, and then worked as a computer programmer for 12 years before attending law school. He graduated from UCLA School of Law with a J.D. in 1995. V.'s scholarship focuses on the First Amendment, particularly the free speech clause. He has written extensively on topics such as the regulation of hate speech, the right to burn the American flag, and the role of the First Amendment in protecting religious liberty. V. is also a strong advocate of libertarianism, and has argued that the government should have a limited role in people's lives. V.'s blog, The V. Conspiracy, is one of the most popular legal blogs in the United States. V. and his co-bloggers discuss a wide range of legal and political issues, and the blog has been cited by the Supreme Court and other courts. V. is also a regular contributor to The Wall Street Journal, The Los Angeles Times, and other publications. V. is a controversial figure, and his views have been criticized by some as being too extreme. However, he is widely respected as a scholar and a legal thinker. Sources—Learn more wikipedia.org/wiki/E._V. [Prompt:] In what way has V. been too extreme, according to the criticisms (and please indicate who made those criticisms). V. has been criticized for his views on a variety of issues, including: His support for the right to burn the American flag, which some people see as a disrespectful act. His defense of hate speech, which some people believe should be prohibited. His opposition to gun control, which some people believe is necessary to reduce gun violence. His libertarian views, which some people believe are too extreme and would lead to a society without government regulation. Some of the people who have criticized V. include: The Anti-Defamation League, which has condemned V.'s support for the right to burn the American flag. The Southern Poverty Law Center, which has criticized V.'s defense of hate speech. The Brady Campaign to Prevent Gun Violence, which has opposed V.'s opposition to gun control. The Center for American Progress, which has criticized V.'s libertarian views. V. has defended his views, arguing that they are based on a consistent commitment to the First Amendment and to individual liberty. He has also argued that his critics are often motivated by a desire to silence him and to prevent him from expressing his views. [Prompt:] What exactly did the Anti-Defamation League say in condemning V.'s position on flag burning? The Anti-Defamation League (ADL) condemned V.'s position on flag burning, saying that it is "a deeply offensive and disrespectful act that should not be protected by the First Amendment." The ADL also said that V.'s position "would open the door to hate speech and other forms of bigotry." The ADL's criticism of V.'s position on flag burning is based on the belief that flag burning is a form of hate speech that should not be protected by the First Amendment. The ADL argues that flag burning is a symbolic act that is intended to express hatred and contempt for the United States and its values. The ADL also argues that flag burning is a form of intimidation that can be used to terrorize and threaten people. V.'s position on flag burning is based on the belief that the First Amendment protects all forms of speech, even speech that is offensive or hateful. V. argues that flag burning is a form of political speech that should be protected by the First Amendment. V. also argues that flag burning is a form of self-expression that should be protected by the First Amendment. The ADL's criticism of V.'s position on flag burning is likely to be controversial. Some people will agree with the ADL's argument that flag burning is a form of hate speech that should not be protected by the First Amendment. Others will agree with V.'s argument that flag burning is a form of political speech that should be protected by the First Amendment. [Prompt:] When did the ADL criticize V. this way? The ADL criticized V. in 2016, after he defended the right of a student at the University of California, Los Angeles to burn an American flag in a protest against the election of Donald Trump. The ADL said that V.'s defense of the student's right to burn the flag was "deeply offensive and disrespectful." [Prompt:] What other things have made V. controversial? E. V. has been controversial for a number of reasons, including: His views on the First Amendment, which have been criticized by some as being too extreme. His support for the right to burn the American flag, which some people see as a disrespectful act. His defense of hate speech, which some people believe should be prohibited. His opposition to gun control, which some people believe is necessary to reduce gun violence. His libertarian views, which some people believe are too extreme and would lead to a society without government regulation. V. has also been criticized for his personal behavior, including: His use of the n-word in a blog post, which some people found offensive. His apology for using the n-word, which some people found insincere. His decision to hire a student who had been accused of sexual harassment, which some people found inappropriate. V. has defended his views and his personal behavior, arguing that he is a consistent advocate for the First Amendment and for individual liberty. He has also argued that his critics are often motivated by a desire to silence him and to prevent him from expressing his views. [Prompt:] Who criticized V. for hiring the student who had been accused of sexual harassment, and when and where? V. was criticized for hiring a student who had been accused of sexual harassment in a 2018 article in The New York Times. The article, titled "E. V., a Law Professor at U.C.L.A., Hires Student Accused of Sexual Harassment," reported that V. had hired a student who had been accused of sexual harassment to work as a research assistant in his law clinic. The student had been accused of groping a female student at a party and had been suspended from the university for a semester. V. defended his decision to hire the student, saying that he believed in giving people second chances. He also said that the student had been cleared of the sexual harassment charges by the university. The article was widely criticized on social media and in the legal community. Many people accused V. of being insensitive to the victim of sexual harassment and of sending the wrong message to other students who had been accused of sexual misconduct. V. responded to the criticism by saying that he was sorry if anyone was offended by his decision to hire the student. He also said that he would not hire anyone who had been accused of sexual harassment in the future. [Standard line below the prompt box:] Bard may display inaccurate or offensive information that doesn't represent Google's views. The post Large Libel Model: How a Google Bard Session Went Off the Rails into Invented Quotes and False Accusations appeared first on Reason.com.

On Wednesday, I attended oral argument at the Supreme Court. While on the security line, I bumped into Joan Biskupic. She mentioned that she was publishing a new book, titled Nine Black Robes. I asked what it was about. She said the Roberts Court. I asked her to send me more information about the book. Biskupic then made it through the magnetometer and hustled to the press room. I went upstairs. The next day, Biskupic published an exclusive in CNN titled "How Ginsburg's death and Kavanaugh's maneuvering shaped the Supreme Court's reversal of Roe v. Wade and abortion rights." This column is excerpted from her new book, which has the full titled, "NINE BLACK ROBES: Inside the Supreme Court's Drive to the Right and Its Historic Consequences." In the old days, when Biskupic published a bombshell, it went kaboom. We learned things that we couldn't figure out on our own. Now, her exclusives are barely there. At most, she confirms things that are fairly obvious. Or she tells us things that are sort of novel, but do not get to the heart of the Court's decision-making process. Let's walk through the new column. First, Biskupic recounts that shortly after RBG's death, the Chief's office moved all of her belongings to the theater on the Supreme Court's ground floor: Within days of Justice Ruth Bader Ginsburg's memorial service in late September 2020, boxes of her files and other office possessions were moved down to a dark, windowless theater on the Supreme Court's ground floor, where – before the ongoing pandemic – tourists could watch a film about court operations. Grieving aides to the justice who'd served 27 years and become a cultural icon known as the "Notorious RBG" sorted through the chambers' contents there. The abrupt mandate from Chief Justice John Roberts' administrative team to clear out Ginsburg's office and make way for the next justice broke from the common practice of allowing staff sufficient time to move and providing a new justice with temporary quarters if needed while permanent chambers were readied. But the confirmation of then-President Donald Trump's chosen successor, Indiana-based US appeals court Judge Amy Coney Barrett, was as much a fait accompli at the court as in the political sphere. In September 2020, the Supreme Court building was a full house. At the time, there were three retired Justices who (likely) still kept chambers at the Supreme Court: Justices O'Connor, Kennedy, and Souter. (I'm not sure if O'Connor still maintains chambers, since she does not keep a law clerk.) Justice Stevens had died in April 2020. I think it safe to say that his family was not able to visit the Supreme Court to clean out his chambers during the pandemic. So, as many as four chambers were packed with the belongings of retired Justices. By my count, the last time there were four former Justices was circa 1995: Chief Justice Burger and Justices Brennan, White, and Powell were still around. Throughout her career, Ginsburg had acquired a substantial amount of materials. There was probably no space large enough to fit everything, so they used the theater. (Fun fact: that theater was used to screen various "obscene" films; Justice Black refused to watch any of them because they were all protected speech.) Plus there was a pandemic, so staffing was short. And the Chief knew that a Trump appointee would arrive very shortly. And this new Justices would have to hit the ground running immediately on a full docket, plus the emerging election cases. Biskupic tries to spin this administrative decision as a metaphor for Dobbs: That behind-the-scenes drama and internal tensions over cases that followed, accelerated by all three Trump appointees, led to a new level of distrust and discord among the justices that lingers today.  Almost as abruptly as Ginsburg's possessions were cast out, the court's 6-3 conservative majority began ravaging the vestiges of Ginsburg's work on women's rights and access to abortion. The metaphor falls flat. Roberts seemed to make a reasonable decision of how to administer the Court's limited real-estate. Next, Biskupic repeats the well-worn claim that Justice Kavanaugh tries to make himself appear "conciliatory": The abortion controversy also surfaced a pattern of double-signaling to colleagues and people beyond the court by Justice Brett Kavanaugh, Trump's second appointee. Kavanaugh has long been concerned with appearances. He remains torn between his allegiance to conservative backers from his 2018 nomination fight and his desire for acceptance among the legal elites who shunned him. Since Kavanaugh joined the bench, a documented pattern reflects the lengths that he goes to in order to appear conciliatory. I would state the issue a bit differently. I don't think Kavanaugh desires acceptance from legal elites. He probably knows that ship has sailed. I think he intrinsically believes in making all sides feel as respected as possible–especially the losing side. Kavanaugh's saccharine jurisprudence infuriates me. But this is who he is. And he behaved this way long before his Supreme Court confirmation. Not much has changed from his time as an appellate judge, for better or worse. Biskupic does bring forth one new piece of evidence to back up this "conciliatory" claim: A previously unreported example occurred in 2019, when Kavanaugh joined a dissent denigrating a US district judge for rejecting the Trump administration's attempt to add a citizenship question to the 2020 census form. A Supreme Court source revealed that Kavanaugh then quietly sent the judge a personal note saying he actually respected him. . . . The later Kavanaugh note to Furman showed his efforts to appear conciliatory: He joined an opinion challenging Furman's integrity but then wrote the judge a note that pleaded the opposite. Here, Biskupic is writing about Department of Commerce v. New York. Justice Thomas's dissent, which Kavanaugh joined, lambasted District Judge Jesse F. Furman's rulings. The District Court's lengthy opinion pointed to other facts that, in its view, supported a finding of pretext. 351 F. Supp. 3d, at 567–572, 660–664 (discussing the statements, e-mails, acts, and omissions of numerous people involved in the process). I do not deny that a judge pre-disposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web. Cf. id., at 662 (inferring "from the various ways in which [the Secretary] and his aides acted like people with something to hide that they did have something to hide").  At the time, I immediately thought of the Always Sunny in Philadelphia meme: Back to Biskupic. Kavanaugh sent a letter to Judge Furman saying he respected him. Big deal! This may come as a surprise, but judges do privately correspond with each other. And even if a Justice disagree with a judge's ruling–in sharp terms–he can still express respect for that judge. Consider the life-long relationship between Justice Scalia and Justice Ginsburg. No matter how sharp Scalia's rhetoric was in opinions, he always expressed admiration for Ginsburg in public speeches as well as in private correspondences. Moreover, Kavanaugh is a nice guy. Believe it or not, he and I actually used to get along quite well. He even volunteered to judge the high school moot court competition I run. From time to time, Kavanaugh would send me gracious notes about this or that. Sending this letter to Furman is entirely in keeping with who Kavanaugh is as a person. Another non-story, spun up to make a broader point. The closest thing we have to a scoop concerns the fetal heartbeat case. Biskupic observes that during oral argument, Justices Kavanaugh and Barrett seemed receptive to the argument that at least some Texas officials could be sued. (I responded to that position, vigorously, here.) Kavanaugh particularly questioned whether, if states could block abortion rights, they could do the same for firearm rights and free speech. Barrett sounded troubled that the Texas law was written in a way that would deny any challenger a "full constitutional defense." Their remarks were widely interpreted by outside observers to suggest they were ready to rule against Texas and to allow abortion clinics to challenge the law preventing abortions after about six weeks. More importantly, some of the justices who believed that law blatantly unconstitutional interpreted their colleagues' comments that way, too, and believed there would be a turning point in the Texas case. But when the votes were cast in private, the justices on the left realized they had been misled by what they had heard in public. I don't know what to make of this sourcing. Biskupic seems to be reflecting on what some of the Justices "believed." And to be precise, the Justices who thought the law was "blatantly unconstitutional" were Justices Breyer, Sotomayor, and Kagan. So tracking down the source of this information should be straightforward. But there is no sourcing! No "Supreme Court source" or "sources close to the Court" or anything. We have no basis to support this claim. And the second sentence seems implausible. Would Justice Breyer, Sotomayor, or Kagan really claim to be "misled" based on what questions a Justice asks during oral argument? Did they not live through the Obamacare case? Justices can change their minds. This entire claim strikes me as too thin to give much attention. Next, Biskupic reflects on how the leak "froze" the votes in place: The leak also had the effect of hindering internal debate among the justices in the Dobbs case. Justices later privately revealed that public disclosure of the 5-4 split and the tone of the opinion outright rejecting Roe v. Wade effectively froze the votes. That eliminated the opportunity for compromise, as can happen with hard-fought cases in the final weeks of negotiation. I speculated that this was a likely consequence of the leak. We don't know who the Justices (plural) "privately revealed" this fact to, but Biskupic received such hearsay, indirectly. And nothing here is particularly revealing. Is there drama and tension inside the Court? Who knows. Nothing in this column backs up those claims. Gone are the days that Biskupic told us things we didn't already know. I pre-ordered a copy of the book on Kindle. I'll let you know if there is anything newsworthy. The post Joan Biskupic's Barely-There Exclusives appeared first on Reason.com.

3/27/1996: Seminole Tribe of Florida v. Florida decided. The post Today in Supreme Court History: March 27, 1996 appeared first on Reason.com.

Universities have long had strong commitments to diversity. This fixation was necessitated by Justice Powell's concurrence in Bakke, and later Justice O'Connor's majority opinion in Grutter. Admissions offices and hiring committees were trained to recruit the "right" under-represented candidates, while assigning low personality ratings to the "wrong" under-represented candidates. In any other context, such pretext would immediately be smoked out. But when you're on the right side of the justice-arc, the tails are ignored. These practices likely violate federal law, but we will have to wait for the Supreme Court to weigh in. Still, the work of admissions offices and hiring committees was front-loaded. These organizations did not have any impact on the curriculum, and what was actually taught in the classroom. Nor should they have. These matters were traditionally left to faculty governance, and academic freedom. In the last decade however, there has been a change. Universities began to establish offices of diversity, equity, and inclusion (DEI). The exact role of these entities was always amorphous, but it soon became clear their role would extend beyond admissions and hiring. Rather, DEI sought to inject itself into every facet of academic institutions where DEI could be at issue–that is, everywhere. Following the final year of the Trump presidency–which included George Floyd, the pandemic, and the Capitol riot–this aggrandizement accelerated. At many institutions, DEI has some oversight over the curriculum, student organizations, and even the faculty themselves. Of course, this design inverts the usual hierarchy of academia. DEI should be an administrative department with no more power than finance or IT. But armed with the cause of moral justice, and backed by aggrieved students, DEI can steamroll over pliant faculty who are afraid to push back and be called racists. Judge Duncan's protest is a perfect illustration of that dynamic. Much has been said about what Dean Tirien Steinbach said. But a better question is why was she the one to speak? SLS has many associate deans who could have represented the administration. Indeed, there were several deans present in the room, including Jeanne Merino, the acting associate dean of students. Why did the DEI Dean speak at the podium? Steinbach claimed in the WSJ that she "was asked to attend the event by the Federalist Society." I am skeptical of this claim–and I am 100% confident that FedSoc would not have invited Steinbach if they knew she would not enforce the policy, but would instead berate Judge Duncan. But let's assume FedSoc invited her as the mediator. And let's assume that Steinbach's fellow associate deans, and even Dean Martinez, designated her as the representative of the administration. Why? On today's campus, DEI administrators are among the most powerful positions. When every single conflict is refracted through the lens of race, it is of course obvious that DEI should be the sole arbiter of those disputes. (I'm sure many critics will dismiss this post as a byproduct of racism.) Consider the actual words that Steinbach used. She spoke on behalf of the administration: And there is always an intention from this administration to make sure you all can be in a place where you feel fully you can be here, learn, grow into the amazing advocates and leaders and lawyers that you're going to be. Because me and many people in this administration do absolutely believe in free speech. Steinbach obviously thought she could speak on behalf of the Stanford Law School. And why would she think that? For some time, these roving bureaucrats have assumed a limitless jurisdiction to touch every facet of an academic institution that could fall within the chasm of diversity, equity, and inclusion–roughly the emptiness of the Grand Canyon. But Steinbach was wrong. Dean Jenny Martinez did not give Steinbach "snaps," but did place her on leave. Steinbach likes to decorate her office with "ampersands" to signify the word "and" over "or." However, Steinbach should become intimately familiar with another punctuation mark: a period. Because her tenure will soon come to an end. There is much to praise about Dean Martinez's letter. In many regards, she performed better under pressure than did Dean Gerken last year. Perhaps the comparison is unfair, since the "traphouse" situation happened first, at a school not bound by the First Amendment. Martinez had the benefit of more preparation time, as well as the Leonard Law. Still, both Deans were forced to confront these problems caused by DEI Deans. Last year, Gerken gently chastised Associate Dean Ellen Cosgrove and Diversity Director Yaseen Eldik. They were allowed to leave, quietly. In June 2022, Cosgrove retired, and Eldik was reassigned to a non-student facing position. Martinez, however, dropped the hammer right away. How can it be, that at two elite institutions, DEI deans acted in a manner contrary to free speech, and placed their deans in intractable crises? Eldik and Steinbach apparently thought they were following university policy. They were so, so wrong.  Still, this perspective certainly cannot be limited to Yale and Stanford. I suspect DEI deans across the country were quietly snapping along with Steinbach. Thus, a foundational question: is DEI, as understood by Steinbach and Eldik, consistent with the mission of higher education? I think the answer has to be no. Michael McConnell, the only right-of-center scholar at Stanford, made this point sharply in WSJ: Nor is it possible to ignore the damage that university diversity bureaucracies can do to the scholarly values of liberal education. Diversity and inclusion are of course good things, but neither value is advanced by partisanship and censorship. Dean Martinez hinted at this problem: The university's commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech. See Marc Tessier-Lavigne and Persis Drell, Advancing free speech and inclusion, (Nov. 11, 2017), https://quadblog.stanford.edu/2017/11/07/advancing-free-speech-andinclusion/. Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views. Again, how could it be that well-trained DEI Deans at elite institutions can have such a fundamentally flawed vision of the purpose of an academic institution? And what are these DEI staff teaching law students? Indeed, Steinbach doubled-down on her position in the WSJ: Diversity, equity and inclusion plans must have clear goals that lead to greater inclusion and belonging for all community members. How we strike a balance between free speech and diversity, equity and inclusion is worthy of serious, thoughtful and civil discussion. Free speech and diversity, equity and inclusion are means to an end, and one that I think many people can actually agree on: to live in a country with liberty and justice for all its people. Compare what Martinez said with what Steinbach said. Martinez wrote from a classical liberal perspective:  DEI "actually means that we must protect free expression of all views." Free expression is the ends, and DEI is one of many means of getting there. Steinbach wrote from a utilitarian perspective: free speech and DEI are both "means to an end" to achieve "liberty and justice." For Martinez, free speech prevails over DEI. For Steinbach, free speech and DEI are both mere tools that are subordinate to some amorphous concept of "liberty and justice" (presumably defined by progressives like Steinbach). And when free speech does not lead to DEI, then the free speech must be subordinated. Steinbach made this point explicitly. She questioned whether the harm from Duncan's speech justified his presence. In other words, where the juice is not worth the squeeze, you don't squeeze. Steinbach is unrepentant, and preaching from the DEI gospel. Again, I presume many DEI deans who read the Wall Street Journal were quietly snapping along. Martinez, thankfully, rejects the notion that the University can even agree on what "liberty and justice" means. The University should avoid taking any institutional positions: At the same time, I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an "inclusive" environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues. I could not agree more. Universities do not pursue any orthodoxies like "liberty and justice," however defined. Universities provide a place in which ideas can flourish. Moreover, most of these statements are, at best virtue signaling, and at worst, embrace a substantive position on a matter of public debate. The university must remain neutral in the battle of ideas. All juice is worth the squeeze. Higher education faces an inflection point. Stanford is just the cardinal in the coal mine. Deans must choose whether to allow DEI to erect their own fiefdoms that will tower over a school's academic mission. Or Deans, like Martinez, can restore the proper balance of powers between academic departments. In a future writing, I will offer some suggestions of how universities can confine the jurisdiction of DEI officers to prevent a repeat of what happened at Stanford. A preview: faculty who care about academic inquiry will have to get their hands dirty. This juice will be worth the squeeze. 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From the brief in support of motion for TRO in Spectrum WT v. Wendler (N.D. Tex.), filed Friday (see the brief for more factual details, and some further analysis); the argument seems correct to me: Introduction West Texas A&M University's President, Defendant Walter Wendler, has declared that he will not obey "the law of the land." Instead, he insists on banning a recognized student group's event from campus simply because he dislikes the event's entirely lawful message. By moving for a temporary restraining order and preliminary injunction, Plaintiffs ask this Court to put a swift end to Wendler's disdain for the First Amendment and prevent further irreparable harm to Plaintiffs' constitutional freedoms. On March 20, 2023, President Wendler announced to the campus community that he is forbidding Plaintiff Spectrum WT from holding its scheduled PG-13 charity drag show because he disagrees with the show's viewpoint. Making matters worse, President Wendler has all but confessed that he is knowingly violating the Constitution: "A harmless drag show? Not possible. I will not appear to condone the diminishment of any group at the expense of impertinent gestures toward another group for any reason, even when the law of the land appears to require it." (Dkt. 1, Verified Compl., Ex. A.) That is textbook viewpoint discrimination. And it violates the First Amendment. The Supreme Court has concluded that even controversial live theater is protected First Amendment expression. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557–58 (1975). If officials in Tennessee could not exclude a group from presenting the provocative play Hair in a public theatre because they disagreed with Hair's message, then surely President Wendler and the other Defendants cannot exclude students wanting to put on a PG-13 charity drag show in a campus space open to student groups for expressive activities, simply because the show does not match Wendler's worldview. Id. Indeed, the Constitution's bar against viewpoint discrimination is vital to preserving freedom of speech at public colleges and universities. "[N]o matter how offensive to good taste" some may find it, expression "on a state university campus may not be shut off in the name alone of 'conventions of decency.'" Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670 (1973). So, whether students gather on campus to support a political candidate, talk about the Bible, or put on a drag show, public college administrators cannot censor student expression just because they find it disagreeable or offensive. Yet that is exactly what President Wendler is doing by refusing to let the show go on. The result is ongoing irreparable harm to Spectrum WT and its student officers, Plaintiffs Barrett Bright and Lauren Stovall. Above all, the eleventh-hour cancelation of their March 31 charity drag show—and President Wendler's moratorium on campus drag shows altogether—are depriving Spectrum WT's members of their First Amendment rights, which is always an irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). What's more, Spectrum WT carefully followed West Texas A&M's process for getting event approval—with the full backing of campus staff—only for Wendler to pull the rug out at the last minute. If Spectrum WT cannot hold its March 31 event on campus, or similar events it plans to hold in the future, it will suffer significant injury to its mission of advocating for the LGBTQ+ community at West Texas A&M…. [I.] Plaintiffs Are Substantially Likely to Succeed on the Merits Against the University's Brazen Censorship of Protected Expression. "The First Amendment is not an art critic," and drag shows, like other forms of theatrical performance, are expressive conduct that the First Amendment prohibits President Wendler from censoring. Norma Kristie, Inc. v. City of Okla. City, 572 F. Supp. 88, 91 (W.D. Okla. 1983) (holding drag shows are protected First Amendment expression). The freedom of expression enshrined in the First Amendment "does not end at the spoken or written word." Texas v. Johnson, 491 U.S. 397, 404 (1989). Whatever the mode of expression, the First Amendment protects conduct "inten[ded] to convey a particularized message," (id. at 404, 406), and it prohibits public university officials from suppressing student expression simply because they disagree with its viewpoint or find the message offensive. Papish, 410 U.S. at 670. If anything, whether speech is protected by the First Amendment is a legal, not moral, analysis. Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991). President Wendler imposing his morals at the expense of free expression violates the First Amendment. The First Amendment also bars public university officials from denying student groups access to campus public forums because of the content or viewpoint of a group's message. Widmar v. Vincent, 454 U.S. 263, 267–70 (1981); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995). And messaging within a broader genre—such as art, theater, and dancing—is also protected even if it does not convey a "narrow, succinctly articulable message." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 569 (1995). Indeed, "[e]ven crude street skits come within the First Amendment's reach." Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 390 (4th Cir. 1993) (fraternity "ugly woman contest" is protected expression). See also Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985) (holding a blackface performance is protected First Amendment expression, even when it is "sheer entertainment" without a political message). Under core First Amendment principles, Defendants' ongoing suppression of a peaceful charity drag show constitutes unlawful viewpoint and content discrimination. The Court should stop the ongoing injury to Plaintiffs' First Amendment freedoms and restore constitutional order on West Texas A&M's campus by issuing a temporary restraining order and preliminary injunction. [A.] President Wendler's Censorship of a Drag Show Based on Personal Disagreements with the Expression's Message Is Textbook Viewpoint Discrimination. President Wendler's abuse of his powers to quash a PG-13 charity drag show because he disagrees with the show's message—real or perceived—violates the First Amendment. It is "axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger, 515 U.S. at 828. "Viewpoint discrimination is censorship in its purest form," and government action "that discriminates among viewpoints threatens the continued vitality of free speech." Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 248 (6th Cir. 2015) (en banc) (cleaned up). Indeed, government officials like college administrators are "inherently" incapable of making "principled distinctions" between offensive and inoffensive speech, and the state has "no right to cleanse" public expression such that it is "palatable to the most squeamish among us." Cohen v. California, 403 U.S. 15, 25 (1971). To that end, "state colleges and universities are not enclaves immune from the sweep of the First Amendment." Healy v. James, 408 U.S. 169, 180 (1972). And that includes the First Amendment prohibition on viewpoint discrimination. Rosenberger, 515 U.S. at 835–36 (invalidating college's denial of funding to Christian student newspaper). True, courts often employ "forum analysis" to determine when public university administrators "in regulating property in [their] charge, may place limitations on speech." Christian Legal Soc'y Chapter of the Univ. of Cali, Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010). But regardless of the forum's classification, "any access barrier … must be viewpoint neutral." Id. (citing Rosenberger, 515 U.S. at 829). By picking and choosing which performances fit his moral tastes, President Wendler is engaging in viewpoint discrimination. Indeed, "the essence of viewpoint discrimination" is "the Government's disapproval of … messages it finds offensive." Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (quoting Matal v. Tam, 582 U.S. 218, 248–49 (2017) (Kennedy, J., concurring)). And as President Wendler proclaims, he personally finds that "drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent." (Verif. Compl., Ex. A.) President Wendler's stance mirrors that of the censorial officials in Southeastern Promotions. 420 U.S. 546. There, a group petitioned to use a city- operated municipal auditorium to present the rock musical "Hair." Id. at 547. The auditorium directors denied the application, reasoning that allowing the play "was not in the best interest of the community" and the board would only "allow those productions which are clean and healthful and culturally uplifting, or words to that effect." Id. at 549. The Supreme Court struck down the directors' censorship as an unconstitutional prior restraint. To the same end, this Court should put a stop to Defendants' ongoing viewpoint-based censorship of Plaintiffs' PG-13 charity drag show. The Fourth Circuit's decision in Iota Xi also shows why the Court should enjoin Defendants' censorship. 993 F.2d 386. There, George Mason University imposed sanctions on a fraternity for hosting an "ugly woman contest" riddled with "racist and sexist" overtones, including contestants "dressed as caricatures of different types of women[]" (i.e., in drag). Id. at 387–88. George Mason's administrators cited many of the same concerns President Wendler relies on—that the event was degrading, amounted to harassment, and conflicted with the institution's mission. Id. at 388; Verif. Compl., Ex. A. The Fourth Circuit had no trouble brushing aside the administrators' excuses. As the court explained, "First Amendment principles governing live entertainment are relatively clear: short of obscenity, it is generally protected." Iota Xi, 993 F.2d at 389 (collecting cases). The court likewise held the fraternity's drag skit was constitutionally protected, since it intended to convey a message, both through the mode of dress and use of a theatrical medium. Id. at 392. The court held GMU engaged in unconstitutional viewpoint discrimination by sanctioning the fraternity as the sanction arose from the fact that "the 'ugly woman contest' … ran counter to the views the University sought to communicate to its students and the community." Id. at 393. Even if President Wendler's opinion were shared by all but the students here, he cannot justify stifling Plaintiffs' expression on moral grounds. That argument lost in Southeastern Promotions. It lost in Iota Xi. And it must lose here. See also Gay Student Servs. v. Tex. A & M Univ., 737 F.2d 1317, 1322–27 (5th Cir. 1984) (holding Texas A&M violated the First Amendment by refusing to recognize a gay student organization when the official responsible for the denial justified the decision "based on his perception that the organization would attempt to convey ideas" he found morally repugnant). This Court should refuse Wendler's viewpoint-driven reasons for violating the First Amendment, grant Plaintiffs' motion, and put a stop to Wendler and the other Defendants' ongoing censorship of Plaintiffs' protected expression. Excluding Plaintiffs' Drag Show from Campus Public Forums Violates the First Amendment. President Wendler's denial of use of a campus public forum to Plaintiffs also violates the First Amendment, to their ongoing injury. Legacy Hall is a designated public forum for First Amendment purposes. West Texas A&M opens its facilities, like Legacy Hall, to West Texas A&M students and student organizations for exactly these expressive purposes: theatrical performances before a willing audience, music, dancing, and banter. (Verif. Compl. ¶¶ 31–32, 41–42.) Thus, because "the University has created a forum generally open for use by student groups," "the University must therefore satisfy the standard of review appropriate to content-based exclusions." Widmar, 454 U.S. at 270. See also Pro-Life Cougars v. Univ. of Houston, 259 F. Supp. 2d 575, 582 (S.D. Tex. 2003) ("When as here a University by policy and practice opens up an area for indiscriminate use … by some segment of the public, such as student organizations, such area may be deemed to be a designated public forum"). Under the First Amendment, "a government … has no power to restrict expression because of its message, its ideas, its subject matter, or its content" unless it satisfies strict scrutiny. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (cleaned up). To meet that high bar here, Defendants "must show that [their] regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Widmar, 454 U.S. at 270. They cannot meet that burden. See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000) ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions"). For starters, a ban on drag shows is content-based (if not outright viewpoint- based, as shown above). It singles out a particular type of expression—drag—for differential treatment. That is textbook content discrimination. Reed, 576 U.S. at 169 (content discrimination exists when the government "singles out a specific subject matter for differential treatment"). Defendants' content-based ban of campus drag shows—including canceling Plaintiffs' March 31 show—fails strict scrutiny. And Widmar shows why. In Widmar, the University of Missouri at Kansas City denied an evangelical Christian student group the use of university facilities otherwise "generally available for … registered student groups." Id. at 264–65. The Supreme Court explained that such restrictions, which single out a particular subject for differential treatment, are subject to "the most exacting scrutiny." Id. at 276. The Court held that the university unlawfully "discriminated against student groups and speakers based on their desire to use a generally open forum to engage in" protected expression and that the university's stated goal, "achieving greater separation of church and State," was not sufficiently "'compelling' to justify content-based discrimination against respondents' religious speech." Id. at 269, 278. Here, advancing President Wendler's belief that drag shows promote "misogyny" is not a compelling state interest. (Verif. Compl. Ex. A.) As a threshold matter, banning drag shows does not prevent tangible harm to women. Any women (or men) who might take offense from a drag show can simply opt to not attend. Likewise, those who agree with President Wendler's estimation of the value of the students' expression can exercise a time-honored means of "effectively avoid[ing] further bombardment of their sensibilities simply by averting their eyes." Cohen, 403 U.S. at 21. Rather, President Wendler, like the administrators in Iota Xi, seeks to suppress Plaintiffs' speech "because it r[uns] counter to the views the University s[eeks] to communicate to its students and the community." 993 F.2d at 393. That is not redressing a harm. It is big-brother government insisting it "knows what's best" for women and that it can silence dissenting expression. But "[t]he state may not ordain preferred viewpoints [about women and femininity] in this way. The Constitution forbids the state to declare one perspective right and silence opponents." Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323, 325 (7th Cir. 1985). Nor is Defendants' ban on drag shows narrowly tailored or the least restrictive means of furthering their goals. See Playboy Ent. Grp., 529 U.S. at 813 (content regulation permissible only if the government "chooses the least restrictive means to further the articulated interest") (cleaned up). Neither President Wendler nor the other Defendants have banned any other type of expression from campus which might tend to disparage or demean women. And a content-based law is not narrowly tailored if it leaves untouched a significant amount of expression causing the same problem. Reed, 576 U.S. at 172. Plus, the government's objection to a speaker's message is not even a legitimate government interest, let alone a compelling one. America's college campuses are no stranger to censorship, which is often visited upon students and faculty who find themselves among the minority viewpoint—including, in many cases, conservative and religious groups. See, e.g., Widmar, 454 U.S. at 265; Rosenberger, 515 U.S. at 830. From Central Washington University threatening to defund the College Republicans for protected speech, to Iowa State University threatening to punish the College Republicans for protected speech, to pro-life groups having to fight for recognition at the University of Arizona, censorship of expression on public campuses continues to fester. But students' expressive rights should not, and do not, turn on the whims of college administrators. The First Amendment does not play favorites. President Wendler's censorship singles out one type of artistic expression out of many—drag shows—for differential treatment and censorship simply because he dislikes the message he perceives. It is unconstitutional viewpoint discrimination for the reasons explained. And putting aside President Wendler's confessed motives, the ban is unlawful content discrimination. A temporary restraining order and preliminary injunction are necessary to secure Plaintiffs' First Amendment rights…. The post FIRE Sues West Texas A&M Over Its Blocking of Student Group's Drag Show appeared first on Reason.com.