Eugene Volokh's Blog

[Improper analogue to support ban on arms on private property open to the public.]

I have filed an in Wolford v. Lopez, which is in the Supreme Court, on behalf of the National African American Gun Association.  As explained in my previous post, the issue is whether the Ninth Circuit erred in holding that Hawaii may prohibit the carrying of handguns by permit holders on private property open to the public unless the property owner affirmatively gives express permission.

Hawaii enacted this ban in defiance of the Supreme Court's ruling in Bruen that the Second Amendment protects the right to bear arms in public.  The Ninth Circuit upheld the ban under Bruen based on the existence of two purported historical analogues, one of which was an 1865 Louisiana law.  I've written extensively on the black codes in Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the "Constitutional Right to Bear Arms," which both Heller and McDonald cite as authority. Thus, I focused on the Louisiana law in the amicus brief.  The following summarizes the argument.

Hawaii's ban on a licensee carrying a firearm on another's property that is open to the public without express authorization is covered within the plain text of the Second Amendment and is presumptively protected.  To demonstrate that the restriction is "consistent with this Nation's historical tradition of firearm regulation," New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 17 (2022), the Ninth Circuit relies on two supposed analogues, a 1771 New Jersey law made it an offense to carry a gun on another's lands without a license or written permission, and an 1865 Louisiana law prohibiting the carrying of firearms on the premises or plantation of another without consent.

The existence of merely two such outlier laws almost a century apart, neither of which was subjected to judicial scrutiny, fails to establish a historical tradition.  This brief focuses solely on the 1865 Louisiana law, which was enacted during a tumultuous period in the aftermath of the abolition of slavery.  It goes without saying that this period is too far removed from the Founding to give information on the original meaning of the Second Amendment.

In the immediate post-war period, Louisiana jurisdictions adopted "regulations applying exclusively to the Negro."  Senate Ex. Doc. No. 2, 39th Cong., 1st Sess., 23 (Dec. 19, 1865).  The town of Opelousas exemplified the trend with its ordinance providing that "No freedman … shall be allowed to carry firearms" within the town limits "without the special permission of his employer, in writing, and approved by the mayor or president of the board of police."  Id. at 23 & 89.

The Freedmen's Bureau overruled such restrictions when they came to its attention.  It became clear that prohibitions on freedom of movement and the right to bear arms could no longer explicitly limit their applicability to the "freedmen."  Laws of general applicability would be enacted that were intended and functioned to apply to the freed slaves.

The 1865 law making it unlawful to carry a firearm on another's premises or plantations without consent was part of several enactments signed by Governor Madison Wells that deleted explicit references to the "freedmen" while continuing the policies of the black codes.  The gun carry ban could be enforced to prevent freedmen from carrying firearms on premises and on plantations without no-trespassing signage.  Another law made it a crime to enter upon a plantation without permission, without any requirement that the land be posted, which limited the freedom of movement of freedmen.

Another law provided for the conscription of "vagrants" who could be detained and hired out to an employer or made to do hard labor on public works for as much as a year.  Still another prohibited enticing a person to leave his employer, which kept the freedmen in a condition of servitude.

These laws received national attention in publications like the New York Tribune, March 7, 1866, which recited the law making it unlawful to "carry firearms on the premises or plantations of any citizen" without consent and concluded: "For the blacks we find a code of laws establishing a system of serfdom, forbidding the free passage of blacks from one plantation to another, and under the form of apprenticeship and Vagrant laws reenacting slavery in fact."

Testimony before the Joint Committee on Reconstruction established that such laws would have been selectively enforced against the freedmen.  Governor Wells, a former slave owner, appointed sheriffs, judges, district attorneys, mayors, and other officers who were recently in the Confederate army.  One witness testified that in the courts, "as far as justice to a freedman is concerned, it is a pretence and a mockery."  Report of the Joint Committee on Reconstruction, pt. iv, 81 (1866).  Another quoted Governor Wells as saying that "the government must pay for the slaves that had been emancipated…."  Id. at 116.

Louisiana's ban on carrying a firearm on premises or plantations without consent was the type of law that Congress sought to render void in the Freedmen's Bureau Act, S. 60, and the Civil Rights Act, S. 61, which were enacted in 1866.  It was also the kind of law sought to be prohibited by the Fourteenth Amendment.

In Congress, former Louisiana governor Michael Hahn was quoted as stating: "It is necessary … to see that slavery throughout the land is effectually abolished, and that the freedmen are protected in their freedom…. 'The right of the people to keep and bear arms' must be so understood as not to exclude the colored man from the term 'people.'"  Cong. Globe, 39th Cong., 1st Sess. 217 (1866).  Representative Thomas D. Eliot quoted the above Opelousas ban on freedmen carrying firearms as an example of the restoration of slavery in fact.  Id. at 517.

Supporters of S. 61 praised the order by General Sickles in South Carolina recognizing the constitutional right to bear arms, which did not "authorize any person to enter with arms on the premises of another against his consent."  Id. at 908 (emphasis added).  That was the normal rule, in contrast the Louisiana's law requirement that one could not go on another's premises "without the consent" of the owner.

The Civil Rights Act provided that all citizens "shall have the same right … to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens…."  14 Stat. 27.  The Freedmen's Bureau Act expanded that language to protect the right "to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms…."  14 Stat. 173.

The reference to "the constitutional right to bear arms" was originally proposed by Representative Nathaniel P. Banks, who as a major general had formed the Union government in Louisiana in 1864.  Cong. Globe at 585.  It was agreed that the expanded language did not change the meaning, implying that the Civil Rights Act also protected the right to bear arms.

In 1867, Congress declared that "no legal State governments" existed in Louisiana and nine other States, which were subjected to military authority.  14 Stat. 428.

Given that Louisiana was not even considered a legitimate state from its secession in 1861 and when it passed the 1865 Act making it unlawful "to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor," it cannot be said that this law was "consistent with the Nation's historical tradition of firearm regulation," Bruen, 597 U.S. at 24 (emphasis added).

* * *

The Court did not grant cert on petitioners' issue number two, of whether the Ninth Circuit erred in also relying on supposed analogues from the post-Reconstruction Era and later.  My amicus brief does not cover that issue, although it is sure to be debated in other briefs.  While there is much more to be said, petitioners' merits brief clinches the issue with a single sentence from Rahimi: "A court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit, 'apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'"

The post Second Amendment Roundup: In Wolford, Hawaii relies on the Black Codes appeared first on Reason.com.

[A recent 11th Circuit decision rightly ruled that mandatory Covid beach closures violated the Takings Clause. But the court overlooked the key issue of how to assess the "police power" exception to Takings Clause liability.]

Falcon1708/Dreamstime.com

 

Co-blogger Jonathan Adler recently posted about Alford v. Walton County, an important new 11th Circuit ruling holding that a local ordinance barring property owners from accessing their beachfront property during the Covid pandemic violated the Takings Clause of the Fifth Amendment.

I think the court was right to conclude there was a taking here, and that the County is therefore required to pay compensation, as required by the Takings Clause. But the court elided the difficult issue of the "police power" exception to takings liability.

The relevant ordinance completely barred property owners from accessing or using their beach front property for several weeks during the early part of the Covid pandemic, in March-April 2020. As the court explained, this is an obvious severe restriction on property rights, and therefore part of the right to "private property" protected by the Takings Clause.

Unlike Jonathan Adler, I think the court was also right to conclude this is a "physical taking" that qualifies as a "per se" (automatic) violation of the Takings Clause, as opposed to a mere restriction on "use" subject to the Penn Central balancing test (a vague standard that usually ends up favoring the government). As the court put it, "Ordinance 2020-09 prohibited the Landowners from physically accessing their beachfront property under any circumstances. That is different from a restriction on how the Landowners could use property they otherwise physically possessed."

But the court avoided what, to my mind, is the most difficult issue posed by this case: the question of the applicability of the "police power" exception to takings liability. For decades, the Supreme Court and various lower courts have held that government actions that would otherwise qualify as takings are exempt from liability if enacted under the police power, which gives government the authority to protect health and safety.

Covid-era restrictions arguably fall within the exception, because they were meant to constrain the spread of a deadly contagious disease, one that ended up killing some 1 million Americans. During the pandemic, a number of state courts upheld Covid shutdown orders against takings challenges based on the police power rationale. I wrote about one such case here.

However, it is far from clear how great a threat to health or safety there must be before the police power exception kicks in. If forestalling even a small risk qualifies, then virtually any restriction on private property rights is exempted from takings liability. After all, just about any use of property poses at least some small risk of spreading disease or causing injury.

In my recent article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver), we argue the police power exception only applies in cases where the government policy in question is preventing a particularly severe danger. For reasons outlined in the article (pp. 25-31), that approach is consistent with original meaning, and with relevant Supreme Court precedent.

By that standard, the Walton County beach restriction and similar measures in other jurisdictions do not qualify for the police power exception. It quickly became clear that outdoor transmission of Covid does not pose much risk. Moreover, it was particularly absurd to ban even the owners from using their own property. If one of them was infected, they could much more likely spread the infection to each other while at home indoors, where the law did not prevent them from interacting with each other.

Thus, I think the court ultimately got this case right. But they should have addressed the police power exception and how it might or might not apply here. The court rightly noted that "there is no COVID exception to the Takings Clause" and that "the government must respect constitutional rights during public emergencies, lest the tools of our security become the means of our undoing." I agree completely! There must be strong judicial review of government invocations of emergency powers. But, though there is no "Covid exception" or "emergency exception" to the Takings Clause, there is a police power exception. And courts should deal with it, when it is potentially relevant.

The Supreme Court, in recent years, has shown little interest in clarifying the scope of the police power exception. But it has - rightly - decided a number of cases strengthening protection for property rights under the Takings Clause generally. This makes it more likely that Takings Clause protections will run into the police power exception, as there are fewer situations where restrictions on property rights avoid takings liability for other reasons.

Thus, the Supreme Court may well have to clarify the police power exception sooner or later. Unless and until they do so, lower courts will continue to struggle with this doctrine.

 

 

The post Covid Beach Closures, the Takings Clause, and the Police Power Exception appeared first on Reason.com.

[Lobstermen surveillance, semiquincentennial squabbling, and socking it to the Scotch Tape People.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Webinar: In thousands of communities across the country, automatic license plate readers are surveilling people's movements on a massive scale. A sensible law-enforcement tool? Or an insane violation of personal privacy? We've put together a crack team of policymakers and advocates to weigh in, including the Montana senator who authored that state's landmark legislation on the topic. Please tune in on Tues., Dec. 9 at 2 p.m. EST.

Or head over to the Associated Press, which has a longform look at the Border Patrol's (until now) secret practice of using ALPRs to identify "suspicious" driving patterns and tipping off local law enforcement, a practice that is resulting in a lot of innocent people, like IJ client Alek Schott (featured in the story), getting pulled over on a pretext and harassed.

This week on the Short Circuit podcast: Anya Bidwell interviews Matteo Godi of USC Law about his new article "Section 1983: A Strict Liability Statutory Tort."

Does it violate the Fourth Amendment for Maine to require that all lobstermen who hold federal lobster fishing permits install an electronic tracking device on their vessels? First Circuit: Well, first things first, let's be clear that "lobstermen" is a gender-neutral term. And as for the Fourth Amendment issue, the lobstermen plaintiffs conceded in the district court that lobstering is a closely regulated industry—meaning the Fourth Amendment has fewer claws—and we're not going to let them renege on that concession now. Dismissal affirmed.As someone living in a neighborhood where our water must be tested for toxic chemicals because of the 3M Corporation, your summarist is sympathetic to efforts to sock it to the Scotch Tape People. But jurisdiction is jurisdiction. The State of Maine claims 3M was a bit toxic in their neck of the woods and filed two cases, one that it knew would end up in federal court and one that, through artful pleading, it tried to keep in state court. First Circuit: Both should be in federal court. 3M is a "federal officer" because this particular toxicity stuff had to do with some military bases, notwithstanding the wordsmithing.Does the Second Amendment prohibit convicting someone for having a gun with an obliterated serial number? Second Circuit: No. The serial number requirement doesn't limit the type of firearm you can own, it just has to have a serial number.The facts of this case involve Mean Girls-level squabbling among several (male) members of the augustly named United States Semiquincentennial Commission, charged with organizing our Nation's 250th birthday party. The law applied by the Third Circuit involves several multifactor tests to conclude that sovereign immunity bars defamation suits against members of the Commission, no matter how fugly the statements in their proverbial burn books.Jackson, Miss. has a lot of lead in its water! Can the city and its officials be sued for violating residents' right to bodily integrity? Fifth Circuit: The city but not the officials. Concurrence/Dissent: The city and the officials. Concurrence/Dissent: Not the city or the officials.State statutes can be unclear. So sometimes federal courts will ask a state's highest court to help them interpret those legislative enunciations. Fifth Circuit: That's why we're asking the Mississippi Supreme Court to do us a solid about an arbitration-related matter. Dissent: Some believe it all went wrong with Raphael. I myself blame Erie Railroad v. Tompkins.Loyal readers of the U.S. Code know that the Labor Management Reporting and Disclosure Act of 1959 prohibits a union or employer from spending money to promote a candidate for union office. But can private individuals or unions sue to enforce that prohibition? Seventh Circuit: Decidedly not.Allegation: Without warning or command, officer shoots pepper ball at man observing 2020 police brutality protest in Omaha, permanently blinding him in one eye. Eighth Circuit: The officer didn't have any retaliatory animus because he shot at other people too. Moreover, just observing—as opposed to participating in or reporting on—a protest does not implicate the First Amendment.Take voting seriously. Yet, not so seriously, as the Eighth Circuit details, that you advise people in your Vietnamese community in Iowa that they can absentee vote and sign on behalf of adult children away at college or, skipping even those details, that they can simply turn the blank ballots over to you that you will proceed to fill in and sign yourself.Class of plaintiffs allege that Blue Cross Blue Shield of Illinois violated Section 1557 of the Affordable Care Act, which bars sex-based discrimination, by refusing to cover treatment for gender dysphoria. Do they state a claim? Ninth Circuit: Maybe-ish? Skrmetti seems pretty on point, but there may be some wiggle room for the district court to consider on remand.Tenth Circuit: The feds failed to prove that this defendant is a non-Indian, so his conviction for sexually assaulting a minor in Indian country is vacated. Concurrence: It ought to be the defendant's burden to show he's an Indian.In 2022, Donald Trump sued CNN, alleging that the network's use of the phrase "Big Lie" to describe his claims about the 2020 presidential election was defamatory because it was intended to associate him with Hitler and Nazi propaganda. Eleventh Circuit (unpublished): "Trump's argument is unpersuasive."Suspecting black man who'd been running through Glynn County, Ga. neighborhood of recent burglaries, white men hop in trucks, chase him down, block his path, and shoot him dead. They're convicted of murder in state court. Afterward, they're convicted in federal court of attempted kidnapping and interference with their rights. Eleventh Circuit: Convictions affirmed. Automobiles are per se instrumentalities of interstate commerce, so their use of the truck to chase the man and prevent his escape qualifies as federal attempted kidnapping. Dissent: They didn't leave the neighborhood, let alone the state, they didn't use the interstate highway system, they didn't use their phones or text messages, and they didn't use the internet. Courts should take a case-by-case approach, rather than adopt a per se rule, to determine if a crime used interstate commerce and is thus appropriately federal.Eleventh Circuit: Look, when gov't officials say "you can't use your private beach, but we can use your private beach," that means they took your private beach.And in en banc news, the Fourth Circuit will not reconsider its opinion telling a district court to decide as a matter of fact whether the Trump administration has so thoroughly undermined the federal civil-service system that federal employees can bypass it in favor of suing directly in federal court.

Amicus victory! Friends, it is sadly commonplace for land-use officials to grant but then—for specious or even spurious reasons—revoke a conditional-use permit, often after a business owner has expended significant resources building or remodeling or what have you. Case in point: Nearly a year after granting a permit for a recycling facility (on property zoned for mineral extraction), and after the owner spent tens of thousands of dollars prepping the site, Monroe County, Ind. officials changed their minds—no doubt influenced by the much bigger recycling firm that belatedly objected to the new competition. So we're happy to relate that last week the Indiana Supreme Court, which gave IJ a little amicus time at oral argument last summer, did the right thing and good thing and unanimously told zoning officials in the state to knock it off.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.

 

The case is Roe v. Smith, just decided today by the Second District; it's only the third binding California precedent, as I see it, expressly dealing with pseudonymity (the others are DFEH v. Superior Court, from the Sixth District in 2022, and the considerably less detailed Santa Ana Police Officers Ass'n v. City of Santa Ana, from the Fourth District this Spring). For more on the facts and the substantive analysis in the case, see this post, but here are some holdings that might be especially important for California lawyers litigating about pseudonymity:

The court broadly reaffirmed the strong pseudonymity-skeptical language in DFEH, including that "Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.'" And this happens in a case where the bottom-line result is indeed against pseudonymity (unlike in DFEH itself). "[T]he use of pseudonyms, absent a specific statutory authorization, should be a limited and rare exception to the general rule of public access to courts." The court made clear that pre-DFEH cases that just allowed pseudonymity without discussion aren't authority in favor of pseudonymity: "While plaintiffs correctly point out that parties have proceeded pseudonymously in many California cases, few appellate cases have addressed the issue. '[C]ases are not authority for issues not raised or decided.'" The court also concluded that Title IX precedents allowing pseudonymity are generally not relevant outside that area. "[T]his is a case against two private individuals, not against a school or a government entity, such as in the particularly confidential Title IX context."

On the other hand, the court held that other federal cases that did expressly consider pseudonymity are important precedents. "[I]n evaluating whether a party has adequately shown an overriding interest that overcomes the right of public access guaranteed by the First Amendment, courts may consider both state and federal authorities, depending on the facts presented…. [T]hough not binding, the opinions of lower federal courts on federal issues are persuasive and entitled to great weight …." "In performing the analysis under California Rules of Court, rule 2.550(d), courts may rely upon factors set forth in relevant federal cases for their persuasive value." The court concluded that pseudonymity is generally unavailable to defamation plaintiffs. "While defamation plaintiffs are not categorically foreclosed from proceeding pseudonymously, they are generally ill suited to do so; courts should require a robust evidentiary showing in such a case." And the court concluded that fear of professional, economic, or reputational harm generally doesn't suffice to justify pseudonymity. "To the extent the trial court concluded that a reasonable fear of one's employer learning about allegations of a private nature overcame the public's right of access, we disagree." "The allegations in defamation cases will very frequently involve statements that, if taken to be true, could embarrass plaintiffs or cause them reputation harm. This does not come close to justifying anonymity, however …." The court concluded that the "injury litigated against would be incurred as a result of the disclosure of the party's identity" rationale applies only to cases "seeking to enjoin a disclosure of private facts" and not when "plaintiffs are suing for damages based on comments which have already been made." The court made clear that "Before allowing a party to litigate under a pseudonym, the trial court must expressly find facts establishing an overriding interest that overcomes the right of public access to court records, and find a substantial probability that interest will be prejudiced if a pseudonym is not used," and must find that "use of the pseudonym is narrowly tailored to serve the overriding interest, and there is no less restrictive means of achieving the overriding interest." "In most cases, a party seeking to proceed pseudonymously should provide evidence supporting his or her motion to allow the trial court to make '[e]xpress factual findings' on the matter." The court held that "to enable the court to conduct a recusal check, the party seeking to use a pseudonym should provide the parties' real names under seal." The court held that decisions allowing pseudonymity are immediately appealable under the collateral order doctrine (by analogy to the sealing cases). "Orders concerning the sealing of documents are appealable as collateral orders…. While there is no specific case applying this rule in the context of an order allowing a party to proceed under a pseudonym, we conclude the reasoning is the same." The court reaffirmed that questions of pure application of law (as opposed to findings of historical fact) in a decision to grant pseudonymity are reviewed independently, and not for abuse of discretion. "Our record contains no declarations or other evidence from which the trial court could engage in factfinding. Instead, this appeal concerns a pure application of law, and constitutional law at that. We exercise independent review."

Disclosure: I briefed and argued the case on behalf of the First Amendment Coalition, which appealed the decision granting pseudonymity.

The post Takeaways for California Lawyers from the Second District's New Pseudonymity Case appeared first on Reason.com.

[Trump's 28-point "peace" plan for the Russia-Ukraine War is a reprise of the 1938 Munich agreement, which dismembered Czechoslovakia for the benefit of Nazi Germany. But US and European supporters of Ukraine can do much to resist it.]

Denys Bozduhan | Dreamstime.com

President Trump has presented a 28-point "peace" plan for the Russia-Ukraine war, which - in reality - is a demand for Ukrainian capitulation. The administration threatens to cut off military aid and intelligence sharing if Ukraine refuses.

Among other things, the proposal requires Ukraine to give up extensive territory to Russia - including key strategic regions that Russia does not currently control - and caps the size of the Ukrainian armed forces, while imposing no similar limitations on Russia's military. It also includes a variety of built-in excuses for Russia to renew the war (such as the ban on "Nazi" propaganda in Ukraine, which could be violated whenever some fringe Ukrainian nationalist group makes public statements that could be interpreted as Nazi-like).

There are no meaningful countervailing constraints on Russia. While the Russians are required to stop the war, this is the sort of agreement they have repeatedly violated over the last decade. And the loss of strategic territory combined with limits on Ukrainian military power would make Ukraine intensely vulnerable to any such Russian treachery, which in turn makes the treachery highly likely to occur.

The plan does apparently include an unspecified security "guarantee" for Ukraine. But, absent specific provisions for the use of US or other NATO forces in the event of Russian aggression, such guarantees have little value. Ukraine in fact already got such a guarantee from the US, Britain, and Russia in the 1994 Budapest agreement, in exchange for giving up its nuclear weapons. It failed miserably.

The obvious historical analogue for Trump's plan is the 1938 Munich agreement, under which Britain and France forced Czechoslovakia to give up a large part of its territory to Nazi Germany, in exchange for a promise of peace. The Germans broke the promise the very next year, seizing the rest of Czechoslovakia.

In one crucial way, the Trump deal is is even worse than the Munich agreement was. The latter at least did not limit the size of Czechoslovakia's military. The Trump proposal does just that, with respect to Ukraine.

Ukrainian President Volodymyr Zelensky seems inclined to reject the deal, and for good reason. Better to fight on with little or no US support than to accept capitulation.

There is, however, much that US and European supporters of Ukraine can do to counter the Trump plan. Europeans should finally confiscate the $300 billion in Russian state assets currently frozen in the West (mostly in Europe), and use them to fund Ukraine's war effort, thereby offsetting much of the likely decline in US assistance, and sending the Kremlin a powerful signal of allied determination.

In a November 2023 post, I rebutted a range of different objections to confiscating Russian state assets, including 1) claims that it would violate property rights protections in the US and various European constitutions, 2) sovereign immunity arguments, 3) arguments that it would be unfair to the Russian people, 4) slippery slope concerns, and 5) the danger of Russian retaliation. All of these points remain relevant today. Stephen Rademaker, former chief counsel to the House Committee on Foreign Affairs, has a recent Washington Post article further addressing the retaliation issue.

In the US, Congress should pass a law granting new military assistance to Ukraine and make delivery nondiscretionary, barring the executive from withholding it. I am not optimistic that Congress will actually do any such thing. But it is worth trying. Aid for Ukraine commands broad public support, and is backed by almost all congressional Democrats, plus a substantial number of Republicans in both the House and the Senate. A concerted bipartisan effort to enact new aid probably won't be able to achieve a veto-proof majority. But it could focus attention on the issue, and make it harder for the administration to stick to its current dangerous course.

In a February 2025 post, I summarized the many moral and strategic reasons why the West should back Ukraine in this conflict, and addressed counterarguments (such as that assistance is too expensive, that it diverts resources from more important foreign policy objectives, or that Russia's war is justified by the need to "protect" the Russian-speaking population in Ukraine). Here, I will merely reiterate that appeasing Vladimir Putin is likely to prove foolish, as well as immoral. His regime has repeatedly demonstrated that it has a deep hostility to Western liberal democracy, and that it cannot be trusted to abide by any agreements, unless compelled by the threat of overwhelming force.

The post Trump's Shameful Attempt to Reprise the Munich Agreement With Ukraine - and What to do About it appeared first on Reason.com.

From today's opinion in Roe v. Smith, decided by Justice Anne Richardson, joined by Justices Elwood Lui and Victoria Chavez:

In 2022, plaintiffs [Jane Roe and John Doe] and [defendant] Jenna [Smith] were all students at the same high school in Los Angeles County…. At the time, plaintiffs were in a dating relationship, which continued at least through the date of the complaint….

In March 2023, Jenna began telling other students at the high school that John had sexually assaulted her and Jane. In April 2023, [defendant] Mother [Smith] told parents of other members of the club that John had sexually harassed Jenna….

The school launched an investigation, with which John voluntarily cooperated. While the investigation was ongoing, Jenna continued to tell other students John had engaged in sexual misconduct towards her and Jane. The "school rumor mill [ran] wild" with this information and plaintiffs received "dozens" of harassing and violent comments on their social media accounts. Plaintiffs allege Jenna was behind these comments….

The school's investigation into Jenna's complaint finally concluded in August 2023, finding John was "not responsible for any of the claims [Jenna] launched against him."

Plaintiffs sued for defamation and related torts, and "sought damages in excess of $5 million" and "an injunction ordering defendants to remove all defamatory posts from social media and to issue apologies to plaintiffs, and prohibiting defendants from publishing any future statements about plaintiffs whether written or verbal."

The court reversed the trial court's decision allowing pseudonymity to the Does (no-one objected to the pseudonymity of the Smiths):

The right of public access to court proceedings is implicated when a party is allowed to proceed anonymously…. "Public access to court proceedings is essential to a functioning democracy." "[T]he public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases," not merely those in which the public is a party, or which generate public concern. Public access to courtrooms in civil matters serves to:

"(i) demonstrate that justice is meted out fairly, thereby promoting public confidence in such governmental proceedings; (ii) provide a means by which citizens scrutinize and check the use and possible abuse of judicial power; and (iii) enhance the truthfinding function of the proceeding."

"If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason traditional Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial tribunals." "[W]hen individuals employ the public powers of state courts to accomplish private ends, … they do so in full knowledge of the possibly disadvantageous circumstance that the documents and records filed [therein] will be open to public inspection." … "[A] trial court is a public governmental institution. Litigants can certainly anticipate, upon submitting their disputes for resolution in a public court … that the proceedings in their case will be adjudicated in public." …

"[T]he right to access court proceedings necessarily includes the right to know the identity of the parties." … In Department of Fair Employment & Housing v. Superior Court (Cal. App. 2022), the court recognized the constitutional issues noted above and held that, before authorizing a civil litigant to use a pseudonym, the trial court must apply the "overriding interest test" outlined in NBC Subsidiary and California Rules of Court, rule 2.550(d)…. The court further held that "[i]n deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.'" …

We agree with the Department of Fair Employment & Housing court that trial courts faced with a motion to proceed pseudonymously should apply the "overriding interest test" outlined [as to the sealing of court records] in NBC Subsidiary v. Superior Court (Cal. 1999) and California Rules of Court, rule 2.550(d)….

Courts in California have recognized at least two interests relevant here as potentially sufficient to allow for redaction of names. These are: first, maintaining privacy of highly sensitive and potentially embarrassing personal information [such as] … records revealing gender identity change … [and] medical and psychological records … and second, protecting against the risk of retaliatory harm…. A recurring theme in the caselaw is that a party's possible personal embarrassment, standing alone, does not justify concealing their identity from the public…. "An unsupported claim of reputational harm falls short of a compelling interest sufficient to overcome the strong First Amendment presumptive right of public access." …

We agree the allegations in the complaint pertain to highly sensitive and private matters: specifically, John's allegations he was wrongly accused of sexual misconduct while in high school; and Jane's allegations she was wrongly identified as a nonconsensual partner of John's during that time. Allegations concerning sexual conduct do fall into the category of highly sensitive and private matters, the more so because the parties were minors at the time.

But that is merely the first step in the overriding interest test. Next, the court must find that the interest of privacy in highly personal and sensitive matters overcomes the public's right of access. We conclude there is insufficient evidence to support the trial court's conclusion that it did. We take plaintiffs' contentions to the contrary one at a time.

First, there was no evidence of serious mental or physical harm that would occur to plaintiffs should their identity be revealed. To the extent the trial court concluded that a reasonable fear of one's employer learning about allegations of a private nature overcame the public's right of access, we disagree.

To state the obvious, the fear that a future employer might learn about the lawsuit through an Internet search is not the equivalent of a fear of violence to one's family members, deportation and arrest, violence, harassment and discrimination against transgender people, or violence against a witness in a murder case. Rather, the fear argued here is precisely the kind of reputational harm cases have routinely held is insufficient to allow a party to proceed anonymously…. "The allegations in defamation cases will very frequently involve statements that, if taken to be true, could embarrass plaintiffs or cause them reputation harm. This does not come close to justifying anonymity, however …." …

[F]ear of harm to one's reputation applies to a great number of cases, including virtually any defamation case. By definition, a claim for defamation involves an allegedly harmful falsehood that has been published to third parties. This justification, when (as here) unsupported by more than arguments based on unproven allegations, would swallow the rule and cannot be squared with the judicial refrain that proceeding under a pseudonym should only be allowed in the "rare" case.

Second, plaintiffs here were not minors at the time they filed this lawsuit. While they were minors for a portion of the underlying events, they are not anymore….

Third, the trial court's conclusion that knowledge of the events was "confined to a relatively small number of people" is unsupported by the record. [Details omitted. -EV] … Even if the trial court had taken such evidence, this factor is at best neutral…. [P]arties generally lose their reasonable expectations of privacy when they file a civil lawsuit….

Fourth, this is a case against two private individuals, not against a school or a government entity, such as in the particularly confidential Title IX context.

Fifth, there is no basis to proceed anonymously because the injury litigated against would be incurred as a result of the disclosure of the party's identity. The cases that have recognized such an interest are cases seeking to enjoin a disclosure of private facts. Here, by contrast, the plaintiffs are suing for damages based on comments which have already been made. To hold otherwise would effectively permit all defamation plaintiffs to proceed by way of pseudonym.

Sixth, that defendants already know plaintiffs' identities is, at best, neutral in this case ….

Seventh, we reject plaintiffs' argument that requiring them to use their real names would discourage "similarly situated" litigants from bringing defamation cases…. To accept such a rationale here would equip all defamation plaintiffs with the same argument.

To the contrary, courts have expressed a reluctance to allow defamation plaintiffs the option to remain anonymous until they know the outcome of their case…. [P]laintiffs claim to have sued to "disassociate their names" from damaging and untrue allegations. Yet they argue if their true identities became known, any ultimate success in the matter would be negated by disclosure of their names. As other courts have noted, this rationale does not make sense in the context of a plaintiff who has filed a defamation claim. (See Doe v. Doe (4th Cir. 2023) ["we fail to see how [the plaintiff] can clear his name through this lawsuit without identifying himself"].) …

The trial court concluded that since the public interest in the identity of the parties is "likely nominal at best," the public interest was overridden by plaintiffs' privacy interests…. [But th]e public has a fundamental interest in knowing the identities of parties to litigation in public fora. Such information is essential to monitoring public proceedings for a host of evils, including corruption, incompetence, inefficiency, prejudice, and favoritism…. "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." …

The trial court understandably credited the privacy concerns of plaintiffs, particularly given they were agreeable to having defendants' names kept out of the pleadings as well. But there is a third stakeholder whenever a party seeks to close any portion of a court record, whether or not represented by a group like the [First Amendment Coalition, which brought the appeal]: the public. Just as a court cannot seal documents solely because both parties agree, a court must be vigilant to protect the public's right of access even when the parties themselves agree to proceed pseudonymously.

Disclosure: I briefed and argued the case on behalf of the First Amendment Coalition. Thanks to then-Stanford-law-students Benjamin Diamond Wofford, Olivia Morello, and Samuel Himmelfarb, who worked on earlier phases of the case.

The post California Appellate Court Generally Rejects Pseudonymity for Defamation Plaintiffs (Including in #TheyLied Sexual Assault Allegation Cases) appeared first on Reason.com.

[Note: I'm working on a book chapter with a similar theme, here is an attempt to distill it into blog post-size.]

As South Africa hosts its first ever G20 Summit, its continued pursuit of Israel under the false guise of genocide is resulting in growing diplomatic pushback. The United States and Argentina have announced they will not be attending, yet Pretoria continues to weaponize the very term "genocide" to suit its political objectives.  

South Africa's pursuit of phony genocide charges forms part of a broader campaign aimed at delegitimizing and constraining Israel as it fights a multi-front war against actors openly committed to its destruction. Some are motivated by hostility to Israel, but others see an opportunity: by capitalizing on intense antagonism toward Israel within academic and NGO circles, they can advance a long-standing project of sharply restricting democracies' ability to fight non-state actors, and particularly terrorist organizations and militias. Israel thus becomes the canary in the coal mine for efforts to effectively outlaw military operations against terrorist groups embedded among civilians.

At the heart of these efforts is a misuse of international humanitarian law, a body of rules created not to restrain whichever side one dislikes, but to impose neutral, equal obligations on all parties to a conflict. IHL was never intended as a political weapon or a pacifistic tool, but as a universal framework meant to protect civilians while recognizing the realities of warfare. This neutrality is its core strength: once the framework is selectively wielded against only one side, incentives for compliance collapse.

The 1948 Genocide Convention sought to establish clear, objective standards for the crime of genocide—above all the requirement of a specific intent to destroy a protected group. Standards like this were crafted to prevent future atrocities like the Holocaust, not to be repurposed for partisan advocacy, whether rooted in intense anti-Zionism or in a strong presumption against the use of military force by Western democracies.

The current effort to redefine these standards is nowhere more visible than in South Africa's case against Israel at the International Court of Justice. The legal theory advanced by South Africa and its supporters drains the term "genocide" of its established meaning, creating dangerous precedents for future conflicts.

The Convention requires evidence of special intent — demonstrated through direct proof, or, absent that, inference only when such intent is the only reasonable conclusion. But Israel's decidedly non-genocidal stated goals in the war – to release the hostages and destroy Hamas – are supported by its conduct throughout the war. 

Israel's actions, including its acceptance of ceasefire terms, its prior openness to negotiated political arrangements, and its extensive facilitation of humanitarian access to Gaza all support this goal and contradict the notion of genocidal intent. No State that facilitates vital humanitarian corridors and extensive aid entry (to date well over two million tons) or engages in sustained efforts to limit civilian harm could be, as the only reasonable conclusion, pursuing the physical destruction of a population.

One element of the Convention that South Africa emphasizes is the alleged deliberate infliction of conditions calculated to destroy the Palestinian population. The humanitarian situation in Gaza is unquestionably tragic—but Hamas, not Israel, bears primary responsibility. 

And crucially, contrary to certain claims, international law does not oblige a State to provide goods it knows will be seized by enemy fighters, so long as good-faith efforts are taken to ensure civilians can receive help through alternative channels that actually reach them. 

Nevertheless, Israel continued to enable massive flows of aid into Gaza throughout the conflict, even as Hamas repeatedly looted, diverted, or resold that aid, including stealing from UN warehouses. By mid-2025, UN data showed tens of thousands of tons of humanitarian assistance had been intercepted by Hamas. Israel's persistence in facilitating aid despite this pattern of theft and operational risk is fundamentally inconsistent with any claim of genocidal intent and goes well beyond what IHL requires of a state fighting an adversary embedded among civilians.

Israel's conduct—warning civilians before military action, adjusting operations to minimize harm, and confronting an enemy that intentionally situates military assets under civilian sites such as hospitals and schools—reflects an approach to urban warfare that many militaries struggle even to approximate. 

Its civilian-casualty rate remains among the lowest of any comparable conflict, an especially notable fact given the extreme density of the environment and the absence of any fully safe haven outside the conflict zone. While casualty numbers alone cannot determine legality, sustained efforts to reduce civilian harm cut directly against the charge that Israel seeks the group's destruction.

The attempt to stretch the definition of genocide to encompass any high-intensity urban warfare causing civilian suffering would not protect civilians. Instead, it would hand terrorist groups a blueprint: embed deeper within civilian populations, ensure any military response causes significant civilian casualties, and weaponize legal institutions to delegitimize self-defense. 

These efforts to rewrite international law to suit a political campaign against Israel would, if allowed, weaken the Genocide Convention itself. A diluted genocide standard does not protect vulnerable groups; it renders the Convention less able to confront real genocidal campaigns when they arise. 

The Convention must be preserved as a principled, objective standard—not reshaped on the fly to serve particular political objectives.

The post Attempts to Redefine Genocide are Undermining the Concept appeared first on Reason.com.

From a decision earlier this month in Byrd v. Middletown Bd. of Ed., by Connecticut trial court Judge Sheila Ozalis; Byrd was a teacher who "was teaching a lesson on 'recognizing racial epithets' as a part of the Cultural Diversity Curriculum at Beman Middle School":

The plaintiff alleges that from 1997–2021, she taught eighth grade students about the District's Cultural Diversity Curriculum, along with other units in the eighth grade Health Curriculum, including internet safety, self-esteem, romantic relationships, drug education, and career education. The plaintiff alleges that Equity Training in recent years for the teachers included the idea that teachers should be challenging students about uncomfortable topics because if people stay in their comfort zone, there is no new growth.

The plaintiff alleges that while employed by the Middletown School District for over twenty years, she presented the same Cultural Diversity Curriculum at Beman Middle School to eighth graders without complaint. She also alleges that this curriculum has been used by the District for nearly ten years, was posted on its website, approved by the Defendant, and was reviewed by the District in the summer of 2021 without any changes made.  As a part of the Cultural Diversity Curriculum, the Plaintiff spoke to students about the diversity within their own community. "Lesson #3" of the published and approved curriculum describes the concept of the lesson as "recognizing racial epithets" and notes the discussion of racial epithets as part of the lesson plan.

The plaintiff alleges that during this lesson, she would introduce vocabulary and examples of attitudes towards distinct groups, including language demonstrating stereotypical thinking and hostility to a specific group or prejudices about particular groups and their alleged predilections and behaviors. She alleges that her open discussion of racial and ethnic stereotypes and slurs had been an established part of the posted Cultural Diversity Curriculum for over ten years and that it was the Plaintiff's practice to verbalize and specifically name the racial slurs that would be discussed during the lesson and ask her students if they had heard that specific slur before.

The plaintiff alleges that she would discuss each word's meaning and history and ask students why racial slurs were used to put people down and why people enjoy making jokes about and ridiculing minority groups. The Plaintiff would focus on the group targeted by the words and how the words hurt members of that group to assist in helping students make better decisions in life, including in their use of language, by providing a better understanding of the words, their origins, and society's pernicious use of them. The Plaintiff also alleges that she sought to make the students better citizens in a multicultural world.

Some of this language could be offensive and difficult for students to discuss. The Plaintiff alleges that she would tell students that they could use her "emergency pass" if they wished to leave a lesson because of any upset regarding the words to be discussed. If the student wanted to, they could even bring a friend with them when they took the emergency pass. The Plaintiff would then follow up with that student during or at the end of class to see if further resources were needed. The plaintiff alleges that nevertheless, this frank discussion about the realities of prejudice and the language utilized by some members of society at large was meant to assist students in recognizing and grappling with the prejudiced language and hostility that they will confront in life, and to make students more conscious of the prejudice and learned behavior existing in their own environments.

On October 29, 2021, the Plaintiff presented the "recognizing racial epithets" lesson to her third class of the day—the first two having occurred without incident—and began her discussion of racial slurs as usual by expressly saying the slurs aloud. The plaintiff alleges that one of the words she identified was "nigger," which she described as one of the most derogatory and offensive slurs that was historically used to depict African Americans as ignorant and uneducated. She alleges that on this day with this particular group, some students objected and said she should not be saying such language aloud, turned around in their chairs out of discomfort, and even videotaped the class discussion…..

Plaintiff alleges she was threatened with firing, and accepted a demotion to avoid being fired. She sued, claiming this violated the Connecticut Constitution's free speech clause, which has been interpreted as more protective than the First Amendment as to employees' speech that's part of their jobs (for a case finding no protection under the First Amendment in a similar factual situation involving K-12 teaching, see Brown v. Chicago Bd. of Educ. (7th Cir. 2016)):

Departing from the limitations imposed by Garcetti v. Ceballos (2006), in Trusz v. UBS Realty Investors, LLC, our Supreme Court held that employees speaking pursuant to official duties have free speech rights. This decision relies heavily on the express language of the Connecticut Constitution. Article first, § 4, of the Connecticut Constitution which provides that "[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty." "By contrast, the first amendment does not include language protecting free speech on all subjects." ….

To narrow the scope of protected employee speech, the Trusz Court adopted a modified Pickering/Connick balancing test such that "only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor when an employee is speaking pursuant to official job duties. Nonetheless, "speech pursuant to an employee's official duties regarding, for example, a mere policy disagreement with the employer would not be protected, even if it pertained to a matter of public concern and had little effect on a legitimate employer interest." "The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education (1968). Thus, "[i]t is only when the employee's speech is on a matter of public concern and implicates an employer's official dishonesty … other serious wrongdoing, or threats to health and safety … that the speech trumps the employer's right to control its own employees and policies."

The first step in evaluating employee speech is to determine whether the employee is speaking on a matter of public concern. Connick v. Myers (1983). "An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community …." … The Appellate Court has held that racial discrimination against a fellow employee is a matter of public concern….

The inflammatory nature of racial slurs has long been recognized. In evaluating a hostile work environment claim based on sex, the Supreme Court explained the "pervasiveness" requirement by analogizing to racial animus and noted that "[t]here must be more than a few isolated incidents of racial enmity …. Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs …." Nowhere have our courts made a stronger rebuke of racial slurs than in State v. Liebenguth (2020).

The Supreme Court in that case contextualized fighting words cases by noting at the outset that "there are no per se fighting words …. Consequently, whether words are fighting words necessarily will depend on the particular circumstances of their utterance." The Liebenguth Court recounted that "[w]ith respect to the language at issue in the present case, the defendant, who is white, uttered the words fucking niggers to [parking enforcement officer] McCargo, an African-American person, thereby asserting his own perceived racial dominance and superiority over McCargo with the obvious intent of denigrating and stigmatizing him. When used in that way, [i]t is beyond question that the use of the word nigger is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination."

The Supreme Court spoke with disapprobation on the use of the word "nigger" and stated that "[n]ot only is the word 'nigger' undoubtedly the most hateful and inflammatory racial slur in the contemporary American lexicon … but it is probably the single most offensive word in the English language." Ultimately, the Supreme Court held that the defendant's use of the word "nigger" in combination with his conduct and other derogatory language was likely to provoke a violent reaction and, therefore, his speech was unprotected fighting words. Thus, when the word "nigger" is used in certain contexts, it can be a threat to safety.

The federal government has also recognized the threat of racism. In 2021, CDC Director Rochelle P. Walensky, a physician and scientist, made a media statement and "declared racism a serious public health threat." …

Words evoke racism not because of the letters on the page or their phonetics, but because of the manner in which they are used. Indeed, when divorced from their context, words can be devoid of meaning and lack clarity. Our Supreme Court recognized that context matters in stating that "there are no per se fighting words because words that are likely to provoke an immediate, violent response when uttered under one set of circumstances may not be likely to trigger such a response when spoken in the context of a different factual scenario."

Like our Supreme Court, the Garcetti Court also left open the potential for broader speech protection in certain scenarios when it noted that "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence." In fact, some courts have held that the utterance of the word "nigger" in the university setting for instructional purposes is protected. See Hardy v. Jefferson Community College (6th Cir. 2001) (where an adjunct instructor's use of the word "nigger" in a lecture on language and social constructivism was protected); Sullivan v. Ohio State University (S.D. Ohio 2025) (professor's use of the word "nigger" in his "Crucial Conversations" course to teach students how to engage productively in racially charged conversations was a matter of public concern).

And the court concluded that plaintiff's claim could therefore go on:

Plaintiff alleges that she did not direct racial slurs at her students in a derogatory manner, but rather she was saying them aloud to instruct students on how to avoid a potential threat created by using those words in public. During a Health class in the 2021–22 school year, taking place amid the backdrop of the Liebenguth decision and the CDC declaration, the Plaintiff alleges that she was acting within the scope of her employment and pursuant to the Defendant's approval when she taught her students a valuable lesson on a matter of public concern: the presence of racism and racially charged language in society today. Thus, the Plaintiff's speech touched upon a threat to health and safety.

Although traditionally a board of education's discretion over the curriculum has trumped the speech rights of public school teachers in primary and secondary education, here, the Plaintiff alleges that she was teaching the Cultural Diversity Curriculum in the manner prescribed by the Defendant. There can be no "mere policy disagreement" when the Defendant itself has adopted the curriculum for the past ten years, including the lesson on "recognizing racial epithets." Like she had in years past, the Plaintiff alleges she simply taught her students to recognize racial epithets and prepared them to confront such words outside the classroom in their communities. She also alleges that by the end of the day, she was placed on administrative leave and threatened with termination. As a result, the Plaintiff has adequately alleged that she was threatened with discharge on account of her constitutionally protected speech ….

This isn't part of the legal test, but the court's analysis here tracks the Connecticut Supreme Court's approach in Liebenguth: That court concluded that defendant could be prosecuted on a "fighting words" theory for using the word "nigger" as an epithet, but the court itself quoted the word over 50 times in discussing the subject, and the word was also quoted 6 times in oral argument.

Lewis Chimes represents plaintiff.

The post Firing Teacher for Mentioning Racial Epithets in "Cultural Diversity" Class May Violate Connecticut Constitution appeared first on Reason.com.

11/21/1926: Justice Joseph McKenna died.

Justice Joseph McKenna

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[What’s on your mind?]

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