Month: October 2020

The so-called “Switch in Time that Saved Nine” is a myth. Justice Owen Roberts cast his vote in West Coast Hotel v. Parrish before FDR’s Court-packing scheme was announced. But the conventional wisdom endures to this day. And, consistent with this conventional wisdom, pressure is forming on Chief Justice Roberts to force another “switch” to avert court packing. This “switch” could take the form of Roberts’s modifying his jurisprudence. Or, in a more extreme example, Roberts may resign if Biden wins to save the Court. Critically, however, the Chief should do everything in his power to ensure that the judgments of the Pennsylvania and North Carolina Supreme Courts stand. The specifics really aren’t important.

Is this conventional wisdom correct? If Chief Justice Roberts’s goal is to forestall Court packing, the most logical choice may be to rule for President Trump. (I generally presume that in controversial cases, the Chief casts votes based first on his idiosyncratic understanding of political equipoise; the best legal reasoning comes second, if at all). At least for the next 4 years, the Supreme and lower courts would be safe. And, perhaps, after four years of rulings that frustrate both sides of the aisle (Roberts is great at those!) the motivation for Court packing will fizzle out. Indeed, a four-year cooling off period may be just what the doctor ordered. In contrast, a ruling for Biden would accelerate the demand for Court packing. I still think some form of Court reform is inevitable, no matter what the commission recommends. Would anyone be willing to take a wager that there are still 9 Justices in the fourth year of a Biden presidency?

All things considered, perhaps the best way to keep the courts in their current form is with a Trump presidency, coupled with frustrating rulings. Deal with 2024 in four years.

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From Judge William Orrick’s opinion yesterday in Rock the Vote v. Trump (N.D. Cal.):

Executive Order No. 13,925 … announces a policy position expressing concern over allegedly biased content management by online platforms such as Twitter and Facebook and directs federal agencies to take various actions to attempt to combat this purported bias. These actions include filing a petition with the Federal Communications Commission (“FCC”) to propose rules that would narrow the civil immunities granted to online platforms under section 230(c) of the Communications Decency Act; proposing legislation to Congress that would place additional regulations on platforms; and assessing whether agencies can reduce the amount of money they pay to social media companies for marketing and advertising services…..

Plaintiffs’ novel First Amendment claims are a step removed from the typical kind. It is not that plaintiffs claim that their rights to free expression have been violated; instead, it is that the speech of on-line platforms like Twitter and Facebook have been chilled by the Executive Order, and as a result plaintiffs’ missions are frustrated and they have had to divert resources to combat misinformation on social media. As discussed below, I conclude that plaintiffs have failed to adequately allege a concrete or personalized injury to themselves traceable to the Executive Order or to show that enjoining or invalidating the Order would redress their alleged injuries ….

To establish Article III standing, “a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Plaintiffs fail to satisfy each of the three standing requirements ….

First, plaintiffs have failed to establish that they have suffered an injury in fact that is concrete and particularized.

The posture of this case is unusual—plaintiffs do not allege that the Executive Order directly regulates them or their First Amendment rights or that they themselves are the targets of retaliation. Instead, they allege that online platforms are engaged in constitutionally protected speech by curating and fact-checking misinformation online; that the Executive Order was issued in retaliation for the platforms’ speech and threatens and punishes platforms for this speech; and that platforms are failing to correct misinformation, to the extent they otherwise would, out of fear of the Executive Order.

Plaintiffs state that they are personally injured as a result of the platforms’ failure to check misinformation for two reasons: (1) they have been deprived of their right to receive fact-checking speech from the platforms; and (2) they have been forced to divert resources to combat misinformation that is unchecked by the platforms. Because they are not directly impacted or targeted by the Executive Order, both of their theories of standing require them to preliminarily show some injury to the platforms. This is a difficult showing to make without evidence from the platforms themselves, and plaintiffs have not made this showing.

Plaintiffs have failed to establish an injury-in-fact to the platforms—a first step to establishing injury to themselves—based on a threat of enforcement and a chilling of the platform’s First Amendment speech. A plaintiff may establish injury-in-fact based on a threat of enforcement by alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” While a plaintiff may establish injury-in-fact based on a government action’s indirect “chilling” effect on First Amendment rights, she must still show that the government action is “regulatory, proscriptive, or compulsory in nature” and that she is “either presently or prospectively subject to the regulations, proscriptions, or compulsions” being challenged. Plaintiffs’ allegations fail to meet this standard because they do not establish that the Executive Order proscribes the platforms’ constitutionally protected speech or that the platforms face a credible threat of prosecution.

The Executive Order does not directly regulate or restrict the speech of online platforms. Instead, it outlines a policy goal of promoting unbiased content management on the internet and orders executive departments and agencies to take various steps that purportedly aim to further this goal. These steps include petitioning the FCC for a rule that might narrow the scope of section 230(c) immunity, proposing legislation that would place additional regulations on online platforms, and encouraging the FTC to bring claims against platforms for deceptive practices.

None of these actions proscribe any constitutional right because they do not restrict or regulate the platforms directly; they are simply steps that may or may not lead to additional regulations, restrictions, or liability at some uncertain point in the future, largely dependent on the actions of independent agencies and branches of government. Any potential enforcement based on these possible future regulations is far too speculative to give rise to a concrete or particularized injury at this point in time. See Laird v Tatum (1972) (noting that a plaintiff’s fear that an “agency might in the future take some other and additional action detrimental to [plaintiff]” was not enough to establish injury-in-fact).

At the October 21, 2020 hearing, plaintiffs argued that the Executive Order’s provisions directing agencies to interpret section 230(c) in line with the Executive Order and to assess their ad spending on social media were immediate threats sufficient to establish injury-in-fact. I disagree. Section 230(c) provides certain immunities in civil litigation. Executive agencies do not have a formal role in interpreting or enforcing section 230(c), making it unclear how these agencies’ internal interpretations of section 230(c) would concretely impact platforms.

Plaintiffs also allege that the Justice Department plans to submit amicus briefs promoting the Executive Order’s interpretation of section 230(c) in civil litigation matters, but this is not a concrete or immediate threat. It would remain up to the relevant presiding courts to determine whether to adopt such an interpretation in any particular case.

As to ad spending, while “a loss of funds promised under federal law[] satisfies Article III’s standing requirement,” the facts alleged here are too vague to establish injury-in-fact. It is not clear how much money, if any, federal agencies spend on social media advertising and, if so, on which platforms. Nor is it clear whether such spending is “promised under federal law” or part of more discretionary agency spending ….

Even if plaintiffs could establish an injury-in-fact to the platforms, they separately cannot show any personal injury traceable to the Executive Order because they have failed to demonstrate that platform speech has been “chilled” or curbed in any way. Where “a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation … of someone else, … causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party.” When necessary elements of standing “depend[] on the unfettered choices made by independent actors not before the courts and whose broad and legitimate discretion the courts cannot presume either to control or predict” it becomes the plaintiff’s burden “to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.”

Plaintiffs assert that, as a result of the Executive Order, platforms like Twitter have declined to fact-check or correct misinformation on their platforms, which has harmed plaintiffs by (1) depriving them of such speech; and (2) forcing them to spend resources correcting the misinformation themselves. But they have failed to allege facts to support their speculation that the Executive Order has depressed platforms’ content moderation activities. Judicially noticeable documents further undermine such a conclusion.

The only facts plaintiffs allege to demonstrate that the Executive Order has stifled planforms’ fact-checking activities are: (1) Twitter has not fact checked several of the president’s tweets about alleged mail-in voting fraud, which were posted after the Executive Order was issued; (2) Twitter placed a notice on an August 23, 2020 tweet in which the President called mail drop boxes “[a] big fraud”—noting that the tweet “violated the Twitter Rules about civic and election integrity”—but did not include a fact-check link on the tweet; and (3) On October 15, 2020, Twitter reversed a decision to completely block users from sharing a New York Post article regarding Hunter Biden and announced that it would simply place a notice on similar content in the future. These allegations are insufficient to establish causation.

Plaintiffs’ own allegations indicate that, prior to the existence of the Executive Order, Twitter only fact-checked President Trump’s statements about election fraud once—fact-checking just one out of four tweets in the Spring that plaintiffs allege were false or misleading. Twitter’s failure to fact check certain tweets after the Order was issued appears consistent with Twitter’s general practice, not a response to the Order.

Similarly, Twitter’s decision to place a notice on President Trump’s August 23, 2020 tweet and tweets related to the New York Post Hunter Biden story, rather than including a fact-check link or blocking the story entirely, does not plausibly indicate a reduction in its fact-checking activities but a commitment to continue moderating the President’s content at its discretion. This conclusion is supported by additional public and judicially noticeable tweets indicating that Twitter has placed fact-check notices and links on several other election-related tweets from the President in the last few weeks.

Plaintiffs have also submitted supplemental information indicating that Facebook limited distribution of the New York Post‘s Hunter Biden story on the Facebook platform. As plaintiffs have not alleged any facts about Facebook’s pre-Executive Order fact-checking behavior, this single instance of Facebook engaging in fact-checking speech further undermines any conclusion that the Executive Order has reduced or chilled platform moderation activities….

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: A whole lot of election law cases.

• Prospective immigrants to the U.S. get a leg up if they plan to invest $500k to build a business in certain targeted areas. If their investment takes the form of indebtedness, however, it only counts if the debt is secured by their personal assets. So what happens if they invest the proceeds of a loan? Is that cash or indebtedness? D.C. Circuit: If you buy a car with money the bank loaned you, you give cash to the car dealer, who doesn’t care where you got it. Same thing here.
• SCOTUS (June 2020): A state cannot exclude schools from a student-aid program because they are religious. First Circuit (October 2020): Well, sure, but a state can exclude schools because they do religious things. (This is an IJ case.)
• Connecticut class clown is asked to write a blog post answering open-ended questions about how characters in a video interacted with each other as part of a communications class. Instead, he writes a post ridiculing the assignment, which the instructor took down. So, like any normal person, the student files a pro se lawsuit alleging a violation of his First Amendment rights. Second Circuit: There’s no First Amendment right to not do your homework. Concurrence: I disagree with all of the legal reasoning the majority employs, but it doesn’t matter because Qualified Immunity.
• Apparently swapping porno mags and putting up naughty screensavers and loudly moaning while describing sexual fantasies about your co-workers at work is a no-no. So says the Second Circuit in this decision reinstating a jury verdict in a Title VII case brought by a retired Ulster County, N.Y. prison employee against her former employer.
• Houston law requires that all who circulate petitions to get measures on the ballot must be Houston voters. Oops, the Supreme Court held that unconstitutional 20 years ago. Is this “zombie” law sufficiently alive to pose a threat to First Amendment rights? Fifth Circuit: Indeed it is. The petition form still lists the requirement, and the city seems to have enforced it in the intervening years. The plaintiffs have standing.
• Customs officials have authority to search vehicles at the border without any probable cause. But what about reaching into a vehicle, grabbing the occupant, and then putting him in cuffs by the side of the road? Do officials need probable cause for that? Fifth Circuit: Nah.
• Allegation: Louisiana corrections employee deliberately keeps inmate imprisoned 60 days past his release date. (Allegedly, the employee announced that “if someone keeps bothering me about their computations they can do more time.”) Fifth Circuit: No qualified immunity for that fellow. But the fellow’s supervisor is off the hook; he might’ve known that his employees were “incompetent” at calculating sentences, but there is no allegation he knew that employees were miscalculating sentences on purpose. (Nor can a separate prisoner, allegedly held 52 days past his release date, sue supervisors at a separate jail.)
• Pro-First Amendment group challenges University of Texas at Austin campus speech code, alleging that its vague terms chill protected speech. University: What? We would never apply this code to speech that was protected by the First Amendment. Fifth Circuit: Query, then, why your speech code doesn’t simply say that students will be disciplined for speech outside the protection of the First Amendment (and, perhaps, Title IX).
• Lawyer: How would you rate my client as a businessman? Witness: Excellent. District Court: OK, now the government can admit tapes of your client making racist jokes about Cleveland Browns fans, since a good businessman would never say those sorts of things. Sixth Circuit: That’s not how this works.
• In a fact pattern that should be familiar by now, public transit system bans “political” advertisements from its busses. Sixth Circuit: We previously upheld Detroit transit’s ad ban on appeal from a preliminary injunction, but the Supreme Court has issued a few opinions in the meantime. Now we see that “political” is way too indeterminate a line on which to regulate speech, and in practice appears to just mean “controversial.”
• By law, Indiana election polls are open from 6am to 6pm on election day. Last year, the state passed laws restricting the ability of officials to extend the hours of the polls. District court: sure might disenfranchise voters, so those laws are enjoined for this election. Seventh Circuit: Not so fast. The possibility that “unforeseen circumstances on election day could disenfranchise voters unless they obtain an extension of polling hours” won’t cut it. The laws don’t burden the right to vote, and the injunction is stayed.
• Minnesota law provides that only those absentee ballots received by election day may be counted. A group sues in state court, and state election officials agree to count all ballots received up to a week after election day. Which likely violates the Electors Clause, says two-thirds of this Eighth Circuit panel. Only the state legislature has the authority to establish how a presidential election may be conducted.
• Kansas City, Mo. police arrest a 15-year-old walking home from his cousin’s house, hold him for three weeks, believing that he had fled police with a gun. One problem: it wasn’t him. Though both were black, the teen they arrested was 5 inches taller and had different clothes and different hair than the suspect. And they found him a mile away seven minutes later, breathing normally and “only a little sweaty” despite the 86-degree heat. District court: The police could’ve reasonably believed they were the same. Eighth Circuit, over a dissent: No, they could not have. No qualified immunity.
• Following the Supreme Court’s 2019 decision overruling the long-dreaded Williamson County doctrine—under which takings claims had to first be litigated in state court—landowner files takings claim in federal court. Ninth Circuit: OK, now we need not consider a property owner’s takings claim because of Pullman abstention. (More on that from a friend of the round-up.)
• Man is arrested for public intoxication and taken to the Muskogee County, Okla. jail. He becomes uncooperative, and while escorting the man to a restraint chair, an officer applies “forward pressure to [his] right arm,” causing the man to fall, suffer an acute subdural hematoma, and die. Excessive force? Tenth Circuit: The officer’s use of modest forward pressure was reasonable.
• In which the Tenth Circuit deep-dives into Urban Dictionary, scrolls through 38 pages of the website’s entry for “dab,” and hits gold on page 39. Among the dictionary’s many definitions of “dab” (after “to touch one’s foot to the ground while bicycling” and “[a] battered potato” but before “when kids want to show off that there [sic] balls haven’t dropped yet“) is this: “a single ‘hit or toke from rolled marijuana.'” So ::insert legal analysis of false arrest claim:: no qualified immunity!
• The Netflix original series Narcos chronicles the rise and fall of notorious drug kingpin Pablo Escobar. But does it also infringe the copyright of Virginia Vallejo—a well-known Colombian journalist who wrote a memoir of her romantic affair with the richest criminal in history—who alleges that the show stole two scenes from her book (one of which made your editor blush)? Eleventh Circuit: The memoir purports to be a true story, and copyright doesn’t protect facts.
• After tentatively settling a class action alleging that Godiva Chocolates violated federal law by including too many credit card numerals on its receipts, the chocolatier catches a lucky break: The en banc Eleventh Circuit (over three lengthy dissents) throws out the case on standing grounds, concluding that this “bare procedural violation” is not sufficient to cause an injury under the Supreme Court’s ruling in Spokeo, Inc. v. Robins, which was decided after settlement but before the class fairness hearing.

In 2019, Nebraska joined the vast majority of states across the country by passing LB 304, which exempted home bakers from the state’s commercial kitchen inspection and licensing requirements. That includes home bakers like IJ client Cindy Harper, who was excited about the prospect of selling her delicious sugar cookies to friends in Lincoln. But earlier this year, Lincoln went rogue and unveiled local ordinances designed to reimpose the very inspection and licensing requirements the state legislature repealed. Undeterred, Cindy fought back, and with IJ’s help filed a lawsuit against Lincoln, arguing that the ordinances were preempted by state law. Just this week, she obtained a favorable state court ruling allowing her lawsuit to move forward. Click here to learn more about Cindy’s case.

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For many reasons, I don’t use the Bluebook. I have not opened a copy since I finished clerking. I try my best to put citations into a format that would allow the reader to locate the source. Beyond that bare minimum, I really don’t care whether a period is italicized. I let my research assistants use their best discretion to revise my footnotes. And, ultimately, the journals will put me through citation hell.

Would anyone defend the Bluebook as a matter of first principles? If we were writing on a blank slate, would anyone come up with every jot and tittle in the 21st Edition of the Bluebook? Like certain precedents, the Bluebook can only be defended based on principles of stare decisis and reliance interests. In Artis v. D.C., Justice Goruch observed, “Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.” Sorry, G.K. Tear down this blue-painted fence.

Paradoxically, for most journals, style matters more than substance. Journals will seldom force authors to make substantive changes. Sure, editors will grouse about how the author presents arguments. But ultimately, they will relent if the author pushes back hard enough. (Don’t be afraid of standing firm; editors turn over every year and institutional memories are short).

For “style” changes, however, journals are uncompromising. They will resist even the slightest deviations from the Bluebook and local style guides. Want to add a Table of Contents or an Abstract (the only parts of an article most people will ever read)? Good luck if the style guide prohibits it. Object to so-called Harvard citations, where a single sentence has two footnotes to the same case? Sorry, you’re stuck. Want to upload a PDF for a document on ECF, so that readers do not have to pay a fee? You’ll need to fight the editors, because the bluebook does not sanction such a helpful link. And so on.

At bottom, style guides and citation manuals are systems of control. They provide very little value, and exist to perpetuate rigid rules of how information is conveyed. These regimes are not substantive in nature. Yet, these rule restrict what substance can be published.

This background brings me to Will Baude and Steve Sach’s post. They write:

According to reports we’ve received from multiple sources, a new version of the BlueBook, not yet released, may require legal scholars to flag any cases whose facts involve slavery. The new Rule 10.7.1 (explanatory phrases and weight of authority) would provide that citations to these cases must add a parenthetical disclaimer like “(enslaved party)” or “(enslaved person at issue).”

I have not heard of this proposal, but I trust Will and Steve’s reports. They are very much tuned into legal scholarship, and routinely publish in top law reviews.

I think the upshot of this regime is that scholars will simply stop citing articles with a (slavery) parenthetical. Given today’s culture, why would any professor willingly litter his or her footnote with the mark of original sin? Asking a research assistant to shepardize a (slavery) case could itself be a traumatic act. And this outcome will not be limited to legal scholarship. Progressive law clerks can now insist that judges should stop citing (slavery) cases. (Recently, a Massachusetts court refused to use the word “grandfatherig,” even though the term predated its Jim Crow usage). And junior associates will refuse to embrace (slavery) cases. Partners will have to given in.

With this subtle procedural change, the Crits will quietly accomplish a long term goal. In fairly short order, entire swaths of jurisprudence will be cancelled. And this erasure will be indiscriminate. Benign cases with even the slightest connection to slavery will be lumped together with dreadful cases like Dred Scott.

And do not think this sort of cancellation will be limited to slavery. What about decisions that restricted the rights of indigenous people? Of women? Of immigrants? And so on. Scholars, and ultimately courts, will soon feel constrained over what cases can be cited. The only cases that will be cited are those that pass some sort of progressive litmus test.

To be on the safe side, scholars should not cite any authority before 1865. Yes, that era includes the Constitution. Would every citation to the Constitution have to include a parenthetical: (treating slaves as 3/5 of person, approving return of runaway slave, and sanctioning slave trade). And don’t forget about the Declaration: (affirming that all men are created equal, but the author was a notorious slaveholder).

Will and Steve suggest that law reviews may also add parentheticals to identify specific bad justices.

 If the BlueBook editors want to start describing a future legal system in which morally disfavored law is flagged—perhaps citations to disfavored Amendments or disfavored Justices’ opinions (“(opinion of Taney, C.J., racist)”)—nothing can stop them.

I already started a list of Justices worthy of cancellation. I’m sure the Bluebook can add a table with handy summaries of all Supreme Court justices:

• (Marshall, C.J., slaveholder, ruled against indigenous people).
• (Harlan, J., favorable rulings towards African Americans, displayed animus towards Asian Americans).
• (Holmes, J., supported eugenics).
• (Brandeis, J., filed misogynistic brief)
• (Black, J., former Klansman, upheld Japanese internment).
• (Kennedy, J. favorable LGTB rulings but voted to uphold racist travel ban).
• (Kavanaugh, J. credibly-accused of sexual assault).
• (Barrett, J.) (anti-choice, dogma lives loudly).
• (Scalia, J., too many flaws to count).
• (Ginsburg J.) (hired only one African-American law clerk).

Woops. That last one may not make the cut.

What other changes are on the horizon? Soon enough, I suspect journals will force authors to put preferred pronouns in the author note. Additionally, if an article touches on race, the author may be required to disclose his or her race. In 2013, I blogged about the California Law Review’s decision to require authors submit their racial classifications. This mandate will spread. For example, I’ve noticed that the New York Times flags whether a person is a Black man or a Black woman (capital B). Journals will no doubt follow this lead. (Despite his surname, Josh Blackman is in fact a white man).

***

I suspect conservative students on the law reviews flagged this issue to Baude and Sachs out of desperation. The few right-of-center editors who make it through the progressive gauntlet no doubt lack the institutional support to stop these changes. The antiracism agenda is in full swing, and nothing can stop it. Dissent cannot be tolerated. And, I fear, most law professors will simply roll over and accept these new forms of control.

Scholars who try to resist these rules will fail. Editors will usually bend on substance, but are rigid on style. Conservative scholars will be forced to litter citations with virtue signaling parentheticals. Or, they can choose to stop publishing in law journals. Plus, law review editors who screen articles can easily ding a submission because it does not have the correct form of social-justice citations. This change will force authors to conform to a specific ideology, or exit the market altogether. I have that latter luxury as a tenured professor, but junior scholars will be put to a more difficult choice.

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