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Seth Barrett Tillman and I wrote a new piece on Balkinization about the Puerto Rico Appointments Clause case. Justice Breyer’s majority opinion held that territorial officers with “with primarily local duties” are not “officers of the United States,” as that term is used in the Appointments Clause. We explain that Justice Breyer’s analysis leads to some unanticipated consequences. Here is a snippet:

The PROMESA case also has unanticipated consequences. If territorial officers with only local duties are not “officers of the United States,” then they are not subject to the Impeachment Clause. That provision extends to the “President, Vice President and all Civil Officers of the United States.” Thus, Congress would be helpless to impeach, try, remove, and disqualify a territorial officer—no matter how egregious the conduct. Consider an example involving St. Clair. Trump v. Mazars recounted that in 1792, he led a “campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana.” Under the PROMESA Court’s reading of the Appointments Clause, Congress would have been unable to remove St. Clair through impeachment processes. By contrast, we can point to a 1796 opinion of the Attorney General, Charles Lee, advising the House of Representatives that it may proceed against a territorial judge by impeachment.

Justice Breyer’s majority opinion has other consequences. If territorial officers with primarily local duties are not “officers of the United States,” regardless of how they are appointed, then they may also not hold “office[s] . . . under the United States.” Under the prevailing readings of the Constitution, there is no meaningful difference between the Constitution’s “office”- and “officer”-language. The two phrases—”officers of the United States” and “office under the United States”—are seen as co-extensive. (We do not subscribe to that modern atextual reading of the Constitution.) If these conclusions are accurate, then territorial officers would not be subject to the Foreign Emoluments Clause. As a result, St. Clair and other frontier officers could have freely accepted foreign state diplomatic gifts or, even, bribes from England, France, and Spain, without seeking congressional consent. Congressional consent would not be required for diplomatic gifts, and impeachment would not extend to outright bribes. Moreover, such territorial officers would not be bound by two other provisions that use the phrase “office . . . under the United States”: the Elector Incompatibility Clause and the Impeachment Disqualification Clause.

The PROMESA Court may have resolved one question with respect to the Appointments Clause, but it created far greater problems with respect to the Impeachment Clause and the Foreign Emoluments Clause. The Constitution’s “office”- and “officer”-language has a Newtonian quality to it. Removing an office from the scope of one clause will necessarily remove it from the scope of other clauses using the same “office”- and “officer”-language. Likewise, subjecting an office to the scope of one clause will necessarily subject it to other clauses. Every action has an equal and opposite reaction. It is not possible to focus on a single provision at a time. This analysis should demonstrate that the Constitution’s “office”- and “officer”-language must be considered intratextually. A ruling with respect to one clause will have unintended consequences for other clauses. The Appointments Clause cannot be considered in a vacuum.

This post is an excerpt from our forthcoming article, Offices and Officers of the Constitution.

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At the end of April, New York City announced “Project Cupid,” an emergency measure which moves the process of obtaining a marriage license online via video conference. Normally, New York state requires couples to obtain these licenses in person, but the COVID-19 pandemic has required a workaround. “We need moments of joy now more than ever,” said Mayor Bill de Blasio, “and we won’t let a pandemic get in the way of true love.” 

Touching stuff. Unfortunately, more than two months later, New Yorkers are still struggling to book their licensing appointments since the city clerk’s office has a huge backlog. For couples with an urgent reason to wed, this is untenable: A couple profiled in The City‘s report on the situation finally eloped to Maryland, à la The Philadelphia Story, because the husband was set to lose his health insurance and the wife worried her work visa would no longer be enough to avoid deportation. They couldn’t wait on a local license.

This sort of delay isn’t unique to New York. In Galveston County, Texas, marriage license requests have more than tripled because nearby cities and states are simply not licensing quickly enough, if at all. Likewise, some local governments have delayed issuance of pet licenses and tree-trimming permits; more seriously, some have halted building inspections, prolonging or effectively suspending construction work.

All such coronavirus-induced malfunctions of governance should occasion reexamination of whether we actually need many of the regulations shaping our daily lives. The pandemic has already prompted fresh scrutiny of alcohol laws, medical testing rules, occupational licensing, and more. But marriage licenses, the most intimate of the lot, deserve particular attention. The state should not be involved in marriage—not licensing, conducting, or defining it.

The practical case is obvious: There are likely thousands of people in America right now who want to be married and can’t be because they can’t get in to see their city clerk. Even amid such unique circumstances, this is absurd and unconscionable. No one should incur medical debt or deportation solely because the state is unable or unwilling to dole out official marital legitimacy.

The bigger principle of privatizing marriage, however, is that it concerns a fundamental and pre-political human right. The decision of whether and whom to marry must be made by those who are marrying “before God and these witnesses,” which is to say, in the context of their families, friends, and religious communities (if they have them). It is not for the state to determine, but historically, marriage licensing was a blatant tool of social control.

These licenses in America date to the 19th century, when they were developed as a means of forbidding unions deemed undesirable, which often meant interracial unions back then. With bans on interracial marriage gone and gay marriage legalized, the licenses today may seem but a rubber stamp on the free choice of two consenting adults. Yet, as many couples are learning now, that stamp is not guaranteed. Unforeseen circumstances may interrupt. New or renewed restrictions on who may marry certainly seem unlikely, but they’re not wholly inconceivable. (See, for example, Bermuda’s ongoing gay marriage whiplash.) With state authority over marriage intact, there’s always a chance that authority could be misused.

But saying “privatize marriage” is not the simple solution it may sound. Any credible argument for it must begin with concession of the point, often raised by skeptics, that so much of our government and financial system uses marriage as a legal shorthand. Eliminating the state’s regulatory authority here—which at the federal level alone entails “more than 1,100 rights [and] responsibilities,” to say nothing of state and local regulations and layers of common law—would throw all that into disarray.

Calling for privatized marriage in a meaningful sense is ultimately determined to dismantle regulations until state control over marriage wouldn’t be needed to make the transformed system work. We shouldn’t downplay the scale of this idea—there’s an entire libertarian agenda crammed inside this horse.

It’s an agenda which reflects the reality of changing attitudes toward marriage: Visions of privatization (in retrospect, including my own from before Obergefell v. Hodges) don’t always recognize just how many spheres of life and law the proposal would affect, but critics who focus on how marriage now fosters stability and protects children seem to forget marriage rates are plunging, and nearly four in 10 babies in America are born out of wedlock already.

This agenda also has the merit of sidestepping many of the culture war fights over religious liberty and gay marriage which continue apace five years after Obergefell. Coexistence between Americans with deeply held, differing views on sex, gender, and marriage could be less fraught, and fears about curtailment of religious practice much allayed, were the sanction and force of the state removed from play. 

But what if you assume, as I do, that the entire libertarian agenda stuffed into “privatize marriage” isn’t in our near future? Well, we could at least address the immediate problem: Smooth the application process for the duration of the COVID-19 pandemic, and then keep it that way. Let people obtain marriage licenses online or by mail. Nix waiting periods and interviews—which aren’t universally required—and make the fee as small as possible. We may not disentangle the state from marriage any time soon, but we could limit the harms perpetuated by its licensing scheme.

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From today’s decision in State v. D.R.C. (by Chief Judge Rebecca Pennell, joined by Judges Laurel Siddoway and George Fearing):

The State is prohibited from penalizing constitutionally protected speech. But not all speech is protected. When it comes to the crime of harassment, speech is not protected if it constitutes a true threat, as opposed to mere bluster or hyperbole. The test for a true threat is objective, though not abstract. The State must show a reasonable person in the defendant’s position would have foreseen the speech would be perceived as a true threat by the individuals in the defendant’s intended audience.

Here, D.R.C. sent a series of text messages to her friends, indicating she wanted to kill her mother. The texts were sent in the midst of a mother-daughter fight. They were vaguely worded and peppered with smiling emojis and the initialism “LOL.” There is no indication D.R.C. ever meant for her mother to see the texts or that D.R.C. ever threatened her mother directly. Given these circumstances, the State has not met its burden of proving a true threat. The record shows nothing more than odious expressions of frustration. D.R.C.’s guilty adjudication and disposition is therefore reversed….

The case against 17-year-old D.R.C. began with a mother-daughter dispute over whether D.R.C. violated house rules by possessing gang-colored clothing. The argument took place in D.R.C.’s bedroom, and at some point D.R.C. slammed her door shut.

D.R.C.’s mother responded by removing the door from its hinges.

During the argument with her mother, D.R.C. was on her phone and texting

with several friends. The primary correspondent was an individual identified as “Joshua.” …

After removing D.R.C.’s bedroom door, the mother confiscated D.R.C.’s phone and turned to leave the room. As she was leaving, D.R.C.’s mother heard a loud noise.

D.R.C. had punched her bedroom wall, leaving a hole in it. D.R.C.’s mother called the police. The police arrived and talked to D.R.C. and her mother, but did not take further action.

Later that night, D.R.C.’s mother reviewed D.R.C.’s phone and discovered the texts between D.R.C., Joshua, and Lexy. She also saw a series of older texts between

D.R.C. and Lexy, wherein D.R.C. made violent comments about an acquaintance….

D.R.C.’s mother found the texts alarming. Although D.R.C. had never threatened her mother directly or engaged in any physical violence, D.R.C.’s mother took precautionary measures. She changed the locks on the entry doors to the house and slept with a knife under her pillow until she was able to obtain a stun gun. D.R.C.’s mother took screen shots of D.R.C.’s text messages and shared them with the police.

The State charged D.R.C. with harassment in juvenile court…. D.R.C. testified in her defense. She explained she never intended her messages to be seen by anyone other than her friends. Nor did she intend her texts to be taken seriously. They were instead a form of venting and expressing her emotions. D.R.C. testified she and her friends often used exaggerated language in their texts. Violent language was common but was not intended to be taken literally. According to D.R.C., she and her friends often denoted sarcasm through the use of emojis and initialisms such as LOLs or LMFAOs. D.R.C. did not think any of her friends would have taken the text messages about her mother seriously.

The juvenile court found D.R.C. guilty of harassment under RCW 9A.46.020(1) and (2)(a). The court reasoned D.R.C.’s messages constituted true threats, as required by the First Amendment to the United States Constitution, because they were taken seriously by both D.R.C.’s mother and Joshua, who advised D.R.C. to tone things down. The court imposed 13 days’ confinement and 12 months’ community supervision….

[B]ecause the crime of harassment penalizes pure speech, its enforcement raises First Amendment concerns. To penalize a defendant for harassment, the State must prove not only the elements of the offense but also that the defendant’s words were not the type of speech protected by the First Amendment. Proof of a true threat meets this requirement.

“A true threat is a serious threat.” It is not an idle statement, a joke, or even a “hyperbolic expression[] of frustration.” When assessing whether a statement at the heart of a criminal prosecution constitutes a true threat, our analysis is more demanding than otherwise applicable in a sufficiency challenge. We look carefully at context and independently assess whether a statement in fact “falls within the ambit of a true threat in order to avoid infringement on the precious right to free speech.”

The focus of the true threat analysis is on the speaker. But we do not look at

the speaker’s actual intent. Instead, the test is objective. We ask whether a reasonable person in the speaker’s position would foresee their statement would be interpreted as a serious expression of intent to cause physical harm.

While the true threat analysis requires an objective analysis with respect to the speaker, the same is not true of the audience. When assessing whether a reasonable person in the speaker’s position would foresee a statement interpreted as a serious threat, we look at the speaker’s actual intended audience, not a reasonable audience or an unintended recipient

Our case law has identified various tools for distinguishing true threats from hyperbole or a joke. Specific plans of causing harm are more threatening than vagaries. A threat will be perceived as more serious when it is conveyed with a serious demeanor. And a threat is understood as more serious when it is repeated to different audiences….

D.R.C.’s intended audience was not her mother, it was her two friends Joshua and Lexy. Thus, whether D.R.C.’s mother found her daughter’s texts alarming is not our focus. We instead must ask whether a reasonable person in D.R.C.’s position would have foreseen that either Joshua or Lexy would have interpreted D.R.C.’s texts as true threats, as opposed to merely a joke or an expression of emotion.

Our analysis of the perspective of Joshua and Lexy is hampered by the fact that neither was called as a witness at trial…. Without explicatory testimony, we are left with only our impressions of the text message exchanges.

We look first to D.R.C.’s exchange with Joshua. According to the State’s exhibit, Joshua was the one who started using violent language when he texted, “Haha beat her

ass.” By prefacing his comment with “Haha,” Joshua unambiguously indicated he was entertaining a joke. D.R.C. then made the comment, “imma get her killed.” At this point, Joshua did not change his joking tone. Instead he completed his comment “Woh chill just beat her ass” with the initialism “lol.” Given the entirety of this exchange, the record simply does not suggest Joshua interpreted D.R.C. as conveying a serious threat.

Even if Joshua had been troubled by D.R.C.’s comments, the context of the text messages is still not indicative of a true threat. Immediately after Joshua’s “lol” text,

D.R.C. reiterated the joking nature of the exchange by accenting her message with an emoji entitled “rolling on the floor laughing.” A reasonable person using this emoji in the context of Joshua’s “Haha” and “lol,” would not have foreseen D.R.C.’s statements as conveying a true intent to cause harm.

We next look at D.R.C.’s statements to Lexy. Unfortunately, the State’s exhibits do not provide much context for this exchange. We do not have Lexy’s response to D.R.C.’s text, “Imma fucking kill this bitch.” However, D.R.C. prefaced her text with an emoji entitled “face with tears of joy.” In addition, D.R.C. indicated she was upset because her mother was going to make D.R.C. live with her father. This parent-child conflict is the type of circumstance commonly associated with teenage frustration, but not homicidal ideation. Given the vagueness of D.R.C.’s statement that she wanted to kill her mother, and the other contextual indicators, the statement to Lexy is not reasonably interpreted as a true threat.

D.R.C.’s past conversation with Lexy supports D.R.C.’s testimony that she tended to use hyperbolic language with her friends. In the prior text between D.R.C. and Lexy, D.R.C. accompanied her statements about harming or killing a mutual acquaintance with “Lmfao”; the face with tears of joy emoji; a shrug emoji; a smiling face with horns emoji;;a zany face emoji; and a heart emoji. The combination of the initialism and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death….

While we rule in D.R.C.’s favor, our disposition should not be interpreted as approval of D.R.C.’s choice of language. We, like the trial court, find nothing funny in the texts. Nevertheless, the First Amendment protects all sorts of speech, even when the sentiment is hurtful or vile. D.R.C. would do well to heed the advice of the juvenile court judge and find a peer group that does not consist of “mean girls.”

Thanks to Mark Leen for the pointer.

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Until last week, Gary Garrels was senior curator of painting and sculpture at the San Francisco Museum of Modern Art (SFMOMA). He resigned his position after museum employees circulated a petition that accused him of racism and demanded his immediate ouster.

“Gary’s removal from SFMOMA is non-negotiable,” read the petition. “Considering his lengthy tenure at this institution, we ask just how long have his toxic white supremacist beliefs regarding race and equity directed his position curating the content of the museum?”

This accusation—that Garrels’ choices as an art curator are guided by white supremacist beliefs—is a very serious one. Unsurprisingly, it does not stand up to even minimal scrutiny.

The petitioners cite few examples of anything even approaching bad behavior from Garrels. Their sole complaint is that he allegedly concluded a presentation on how to diversify the museum’s holdings by saying, “don’t worry, we will definitely still continue to collect white artists.”

Garrels has apparently articulated this sentiment on more than one occasion. According to artnet.com, he said that it would be impossible to completely shun white artists, because this would constitute “reverse discrimination.” That’s the sum total of his alleged crimes. He made a perfectly benign, wholly inoffensive, obviously true statement that at least some of the museum’s featured artists would continue to be white. The petition lists no other specific grievances.

You might think that one of the most prominent art curators in the country—with 20 years of experience at SFMOMA—would be able to weather such a pathetically weak accusation of racism. But in the current cultural moment, it appears not. Garrels promptly resigned.

In a statement announcing his decision to step down, Garrels apologized for the harm his words caused, only slightly disputing the absurd charge against him. ” I do not believe I have ever said that it is important to collect the art of white men,” he said, according to artnet.com. “I have said that it is important that we do not exclude consideration of the art of white men.”

Suffice it to say that this is not the language of a white supremacist. Those who say otherwise—that Garrels is guilty of racism—have stripped the word of its potency. They have shown once again that the signatories of the recent Harper‘s letter were entirely correct that the progressive drive to purge lofty institutions of racism and sexism has frequently gone astray, in a manner that threatens both free inquiry and common decency. The 1793 Project continues.

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