The Volokh Conspiracy

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The Volokh Conspiracy

"Strangers on the Internet" Podcast Episode 23: A Rationalist Guide to Dating

Volokh Conspiracy blogger Prof. Ilya Somin gives tips on taking a scholarly approach to achieve dating success


The twenty-third episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange is a Presidents' Day bonus feature with Volokh Conspiracy's very own Prof. Ilya Somin!

Once upon a time, Ilya decided to put his scholarly chops to use in the romantic arena to increase his odds of success. He turned to both the academic and popular literatures to develop his rationalist approach to dating and shares his wisdom with listeners looking for love. How should one cope with rejection while trying to find a mate? What do many women want when it comes to men planning dates? And what did Ilya say when a woman asked to go on a first date at Arlington National Cemetery?? Come hear about Ilya's journey that ultimately led to finding happiness with his now-wife Alison!

Ilya Somin

Seattle Considers Banning Caste-based Discrimination


AP reports:

[Seattle City Council member Kshama] Sawant has proposed an ordinance to add caste to Seattle's anti-discrimination laws. If her fellow council members approve it Tuesday, Seattle will become the first city in the United States to specifically outlaw caste discrimination….

The national debate in the United States around caste has been centered in the South Asian community, causing deep divisions within the diaspora. Dalit activist-led organizations such as Oakland, California-based Equality Labs, say caste discrimination is prevalent in diaspora communities, surfacing in the form of social alienation and discrimination in housing, education and the tech sector where South Asians hold key roles….

Suhag Shukla, executive director of the Hindu American Foundation, called Seattle's proposed ordinance unconstitutional because "it singles out and targets an ethnic minority and seeks to institutionalize implicit bias toward a community."

"It sends that message that we are an inherently bigoted community that must be monitored," Shukla said.

Caste is already covered under the current set of anti-discrimination laws, which provide protections for race, ethnicity and religion, she said.

Two comments:
(1) It's not at all clear to me that current antisdiscrimination laws cover caste discrimination. And it's almost certainly not unconstitutional for a city to ban discrimination based on caste simply because Indian Americans are disproportionately likely to be both the perpertrators and victims of such discrimination.
(2) This is yet one more example of America's absurd racial classification system. India is an extremely internally diverse of 1.5 billion people, with many different ethnic groups, languages, and religions, and of course a longstanding caste system. Yet when Indians immigrate to the US, they become generic "Asian Americans" by government fiat, and when university consider their "diversity" goals, any Indian American, regardless of appearance, religion, caste, language and so on, is not only considered indistinguishable from any other Indian American, but also from a Chinese, Filipino, or Vietnamese American.


Private Gun Carriers' Self-Defense Against Public Shooters

The El Paso incident from a few days ago, the FBI 2021 statistics, and more.


I had written about this in past years, but I thought I'd update it to reflect the El Paso incident from last week. According to the El Paso Police Department (see also CNN [Andy Rose]), a confrontation between two groups of teenagers at a mall "escalated into a physical fight" and then into a 16-year-old fatally shooting a member of the other group and seriously wounding another member, as well as injuring a member of his own group. Then,

As soon as the shooting ended, the 16-year-old suspect began to run and was pointing the gun towards the direction of bystanders, including 32-year-old Emanuel Duran, a Licensed to Carry Holder. As the suspect ran towards Duran and bystanders, Duran drew his handgun and shot the suspect.

At that time, one off-duty El Paso Police Officer arrived at the area of the shooting and together with Duran rendered aid to the 16-year old suspect and the others that were injured. Investigators found that there were at least two other legally armed citizens in the area of where the shooting took place, but were not involved.

Now in this case, the suspect didn't seem to have planned a mass shooting; he seems to have had a beef with the other teenagers. On the other hand, he appears to have been pointing his gun towards the bystanders, so it's hard to know what would have happened. And something similar could easily have happened with an intended mass shooting as well; for an incident like that from last year, see this WCHS-TV story:

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Do Hospitals That Drop Mask Requirements Risk Liability?

Prof. Nina Kohn and I argue that they do


Prof. Nina Kohn and I have a new piece up on the Harvard Law Petrie-Flom Bill of Health blog that examines the question of liability in cases in which patients contract COVID-19 in hospitals that no longer require masks. Here is an excerpt:

Hospitals have a common law duty to act reasonably. If they unreasonably expose patients to risk, and the patients are harmed as a result, hospitals may be liable for damages. The result: patients who can show that it is probable that they were infected with COVID-19 in a hospital, and that they would not have been if the hospital had taken reasonable measures to protect them, may be able to successfully sue hospitals for damages.

The big question is what does it mean to act "reasonably" in a world in which COVID-19 abounds and remains a leading cause of death, including for children. Over the past century, courts have developed a variety of approaches to figuring out the bounds of reasonableness. In determining whether a precaution is "reasonable," modern courts commonly consider the relative costs and benefits of taking that precaution. Where an individual causes harm because they fail to take a cost-justified precaution, they may be found negligent and required to pay for the damages they have caused.

Requiring masks in direct patient care settings is a prime example of a cost-justified precaution. Masking is a simple, effective, and low-cost measure that hospitals can take to substantially reduce the spread of COVID-19. And the benefits are significant in hospital settings. Hospitals concentrate people who, as reflected in the conditions that bring them to the hospital, are both more prone to infection and more likely to face serious consequences if infected. Moreover, both healthcare providers and patients are known vectors of transmission in healthcare institutions.

Political Ignorance

Fox News 2020 Election Coverage Decisions Demonstrate that Demand for Misinformation is a Bigger Problem than the Supply

Major Fox talk show hosts knew that Trump's claims of a stolen election were false, but chose not to say so on air, for fear it would anger their audience.


Evidence made public as a result of Dominion Voting Systems slander lawsuit against Fox News reveals that Fox News executives and on-air personalities knew that Donald Trump's claims that the 2020 election was stolen from him were false.  Soon after the election, informed observers at Fox (like those elsewhere) already knew that Trump had lost legitimately. But they chose to conceal this truth on the air, for fear that broadcasting it would anger the channel's audience and lead to lower ratings:

[P]rominent [Fox] anchors like Tucker Carlson, Sean Hannity, Laura Ingraham, and Maria Bartiromo are evidently very aware that the public—or, more precisely, their public—doesn't share their view of claims of massive fraud in the 2020 election made by former President Donald Trump and his allies like lawyers Rudy Giuliani and Sidney Powell….

Documents from a defamation lawsuit brought against Fox by Dominion Voting Systems, a voting machine manufacturer whose product was implicated in the fraud allegations, show the hosts fully understood that the theories pushed by Powell et al. were, in their words, "insane" ideas from an "idiot" and a "lying," "complete nut."

Still, they permitted—even welcomed—advocates of those theories on Fox airwaves because the audience liked it. As Carlson put it, "Our viewers are good people and they believe it," though Carlson himself did not. Or, as Bartiromo agreed, "It's easier to get good ratings when you give your audience something they want to hear," and "a peaceful transition" between the Trump and Biden administrations was not what they wanted to hear. Or Hannity: "You don't piss off the base."

Rupert Murdoch, Executive Chairman of News Corp, which owns Fox, appears to have made a similar calculation. He and others at Fox feared that if the network told viewers the truth about the election, its audience would decamp, perhaps to other right-wing networks, such as Newsmax.

In addition to highlighting the cynical nature of Fox's decision-making, this incident also sheds light on the dynamics of political misinformation. Many assume that purveyors of misinformation deceive an audience that would otherwise naturally gravitate towards the truth. But, in reality, Fox was catering to its viewers' preexisting prejudices. They already believed that the election had been stolen from Trump, or at least had strong predispositions in that direction. The network was not so much forming their beliefs as pandering to them. Had it refused to do so, they might have gone to someone else who would.

This story is a particularly striking example of the ways in which the demand for political misinformation is a bigger problem than the supply. I summarized the dynamic here:

[T]he low odds that any one vote will make a difference to the outcome of an election ensure that many consumers of political information are acting not as truth-seekers, but as "political fans" eager to endorse anything that supports their position or casts the opposing party and its supporters in a bad light. These biases affect not only ordinary voters, but also otherwise highly knowledgeable ones, and even policymakers and politicians.

This demand for misinformation is the real root of the problem. If it were lower, the supply would not be much of a danger, and at the very least would not affect many voters' political decision-making.

I also previously wrote about this issue here, here, and here.

Republicans' reaction to Trump's lies about the 2020 election and to some other recent events highlight the problem of right-wing voters susceptibility to myths and conspiracy theories that reinforce their preexisting views. But left-wingers are also prone to the same dynamic. Social science research finds that bias in evaluation of political information is roughly comparable across the political spectrum. Both right and left are relatively more willing to believe misinformation that confirms their priors. Examples that primarily appeal  to the left include 9/11 "trutherism" (discussed in Chapter 3 of my book Democracy and Public Ignorance), and claims that GMO foods should be banned or because they are supposedly more dangerous than "natural" ones.

Even if driven by viewer demand, Fox's actions were still reprehensible. It is obviously unethical for news network leaders and commentators to become knowing purveyors of falsehood.

The above also should not be taken as proof that Fox's decisions had no effect. Had the network's most prominent commentators and hosts fortrightly told their viewers the truth about the election, it might have changed at least some minds (even as other viewers might have simply switched channels). Partisan Republicans may be more likely to let go of misconceptions when told the truth by opinion leaders on their "side," as opposed to partisan opponents or "mainstream media" sources, which many conservatives view with deep suspicion. "Political fans" of all stripes are likely more willing to accept unpleasant truths from players on their own team.

But the central role of viewer demand in this episode does suggest that Fox and other purveyors of misinformation are less powerful than often thought. Such influence as they have arises primarily because many people have strong preexisting prejudices that lead them to believe certain types of lies. If Fox refuses to tell them what they want to hear, they might turn to someone else who will.

The crucial role of the demand side also has implications for efforts to address the problem of political misinformation. I summarized them in previous pieces on the subject, most recently here. Among other things, it suggests we are unlikely to make much progress by trying to curb specific sources of misinformation, whether it be a social media platform like Twitter, or a network like Fox. Rather, we should seek structural solutions that reduce political polarization and shift decision-making to formats where people have better incentives to curb their prejudices and seek out the truth.





WaPo Columnist Says The Quiet Part Out Loud About Attacks On The Judiciary

"A sustained campaign of condemnation isn’t going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones."


For generations, the Supreme Court mostly hewed a progressive jurisprudence.  Even if there were conservative blips here and there, appointees of Democratic and Republic presidents alike ruled in ways that were conducive to the political left. Litigants routinely judge-shopped cases (Amarillo has nothing on Montgomery), certain that the Supreme Court had their backs. During those golden times, judicial supremacy was considered a necessary condition of our polity.

But those times are gone. Prominent scholars openly speak out against judicial supremacy. And that academic theme carries over to the political realm. Indeed, Senator Wyden called on President Biden to "ignore" a district court's ruling. Not even Orval Faubus was so audacious. (My article on Cooper v. Aaron is more timely than ever.)

At least with the current administration, there is no realistic chance the President will "ignore" a ruling of a federal court. Indeed, Biden couldn't even stick to the script, and criticize the Supreme Court justices at the State of the Union. But sooner or later, the academic and political stars will align, and a President will openly flout a federal court judgment. Who will send in the 101st Airborne?

Until that time, there is a sustained attempt to undermine conservative judges. Superficially at least, these barbs are designed to criticize the legal justifications of their rulings. But there is a deeper purpose at play here. Perry Bacon Jr. said the quiet part out loud in his Washington Post column, titled There is only one way to rein in Republican judges: Shaming them.

So at least in the short term, there is only one real option to rein in America's overly conservative judiciary: shame.

Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges. A sustained campaign of condemnation isn't going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones.

Bacon names and shames federal judges who halted the student loan cancellation policy (Erickson, Grasz, Pittman, and Shepherd), judges in the CFPB funding case (Engelhardt, Willett, and Wilson), and judges in a recent Second Amendment case involving domestic violence restraining orders (Wilson, Ho, and Jones). We should thank Bacon for helping to assemble the next Supreme Court shortlist.

Of course, the locus of the shaming is the Supreme Court's "swing" vote, Justice Kavanaugh.

This kind of shaming has already been shown to work. . .  Many of the opinions of Kavanaugh, who is now the court's swing justice, seem almost intentionally written to minimize public blowback.

I think Justice Kavanaugh is a different type of swing vote than were Justices Kennedy, O'Connor, and Powell. These jurists were truly moderate. They had liberal and conservative tendencies that often tugged them in different directions. By contrast, I think Kavanaugh is a profoundly conservative jurist, but he is often pulled to the left by public perception. His concurrences illustrate this internal struggle. Bacon agrees:

[Kavanaugh] seems to want to be respected by people across the political spectrum as a fair-minded judge. People on the left need to make clear he won't get that respect if all he does is issue opinions that align with what the Republican Party wants.

Newsflash: Kavanaugh will never gain respect from the left. Never, no matter how many concurrences he writes. The second sentence in Justice Kavanaugh's obituary will reference Dobbs and the third sentence will reference Christine Blasey Ford. His verdict is already written. It is impossible to appease these critics. Remember, virtually every piece written about Justice Thomas's 30th anniversary featured a discussion about Anita Hill.

Still, Bacon should be commended for his candor about Kavanaugh. Bacon also has the candor to admit he agrees with Trump!

In their thinking about the judiciary, Democrats should be more like Trump. While in office, Trump criticized a ruling he didn't like by casting the judge who wrote it as an "Obama judge." Roberts then issued a sanctimonious statement, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges."

But at least right now, Trump is right. Roberts and his colleagues are acting like Republicans, not judges — and Democrats should say that loudly and often.

Even if Biden won't act, Bacon urges other prominent Democrats to carry the mantle:

While the president should highlight the worst rulings, he doesn't have time to attack them all. So there should be a high-profile Democratic politician in a safe seat (perhaps House Minority Leader Rep. Hakeem Jeffries of New York) who each week holds a news conference to slam the most extreme rulings by GOP judges.

And what if these attacks lead to threats and violence? So be it, Bacon writes:

There will be arguments that such high-profile criticism would put judges in physical danger. I obviously oppose violence. But judges are powerful figures setting policy — they should get as much scrutiny as elected officials. No one argues that Biden is imperiling the life of Florida Republican Rick Scott, even though the president has repeatedly named Scott while criticizing the senator's Social Security proposals.

The switchboard in Amarillo federal courthouse should record how many calls were received in the past few days from Oregon.

I'm still waiting for the Chief Justice to release a statement about Senator Wyden. These attacks will become more and more common.

Thoughts on Dubin v. United States and the Aggravated Identity Theft Statute

18 U.S.C. § 1028A, this is your day in court.


On February 27, the Supreme Court will hear argument in Dubin v. United States, a case on the Aggravated Identity Theft Statute, 18 U.S.C. § 1028A. This statute comes up often in the context of computer crimes, and its interpretation raises some interesting and important questions. So I thought I would blog about the case and offer some impressions.

I'll start with the statutory problem that prompts the Dubin case; then turn to the case itself; and conclude with my own views.

A. The Mess of Statutory Drafting That is 18 U.S.C. § 1028A.

First, some context. Section 1028A was enacted in 2004 at a time when there was a lot of concern about computer crimes and credit card fraud.  Aided by "cyberspace," criminals were using the identity information of innocent consumers to get new credit cards in their names that were then used by the criminals fraudulently in ways that caused endless headaches for consumers who were then stuck with the fraudulent purchases on their credit record.  This using of an innocent person's identifying information to get a bogus line of credit, sticking them with the consequences, was being known as "identity theft." And it was a big concern.

So what did Congress do?  A natural thing would have been to enact a law adding a sentencing enhancement for fraud that caused those personal harms to innocent victims.  That is, treat the harm—bad credit scores, the incurring of debts to others, etc.—as a result element that, if caused, triggers greater criminal liability.

But that is not what Congress did.  Instead, Congress wrote this statute, titled "Aggravated Identity Theft":

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Here's the key: Instead of focusing on the causing of the harm, Congress tried to describe the extra-bad act that was generally associated with the extra-bad harm.  And what was that extra-bad act?  Congress figured, well, someone who was already committing some kind of fraud-based predicate felony (bad) was using identity information without the person's permission (extra-bad).   So in addition to the liability they had for the already-existing fraud-based felony, a criminal who uses the identifying information as part of that felony gets an extra two years in jail for using the identifying information.

At this point, you can probably see some problems with how the statute is drafted.  There are two big problems, I think, and they are related.  First, Congress did a lousy job describing the fraud-based felonies that can act as a predicate offense.  Instead of saying the predicate offense had to be a fraud crime, Congress looked to various parts of Title 18 and included large swaths of the code that seemed to have some kind of connection to fraud.  When you look at the predicate felonies in subsection (c), there are 11 different areas of Title 18 that are included as predicates.  Some of those sections are about fraud.  But some aren't.  Some were just codified near sections about fraud.

The second problem, and the one more directly relevant to the Dubin case, is that Congress did a terrible job describing the extra-bad act.  The extra-bad thing the drafters were thinking about was using identity information in a way that caused the person to whom the information related to suffer harms such as bad credit scores or being stuck with the bill.  But Congress instead wrote the extra-bad act in a very abstract way.  In the statute, the extra-bad act is described as "knowingly transfer[ing], possess[ing], or us[ing], without lawful authority, a means of identification of another person" . . . "during and in relation to" one of the predicate offenses.

Yikes.  So during and in relation to one of these possibly-but-not-necessarily fraud-related predicate offenses, a person has to do something about a "means of identification of another person" without that person's permission?  I mean, that could mean almost anything.

And the stakes are high.  A lot of crimes are technically felonies under Title 18 but are pretty low-level felonies, the kind of thing likely to lead to probation or at most a short prison term. But if § 1028A applies, it tacks on a two-year prison sentence.  So you could have a probation offense that becomes a two-years-in-jail offense if § 1028A is triggered, with the § 1028A punishment dwarfing the predicate felony punishment.

All of this prompts a natural question about how to construe the statute.  Do you construe § 1028A broadly, to mean as far as the statutory language might in theory go, even if it ends up causing odd results?  Or do you construe the statute narrowly in light of the problem Congress was trying to solve?  That is the problem at the heart of the Dubin case.

B. The Dubin Case

The case before the Court, Dubin v. United States, is pretty simple.  David Dubin helped submit a false bill to Medicaid concerning a psychological exam for a particular patient.  The exam was given, but the bill gave a false date for it in a way that qualified it for payment. That false bill included the patient's name and Medicaid ID number on it.  The government charged Dubin with fraud for the improper bill, a charge no one disputes here.  The disputed part is that the government added an additional count of aggravated identity theft because the bill included the patient's name and Medicaid ID number, which are "means of identification" of the patient.

From the discussion above, you can pretty much predict what the briefs argue.

Wait, Dubin says, how can I get another two years in jail just because the bill included the patient's name and Medicaid ID number?  This has nothing to do with identity theft, which after all is the title of the crime. The patient isn't a victim here.  The fact that the patient's name and ID number was used is incidental to the fraud scheme.  You have to construe the statute more narrowly to focus on actual acts of identity theft.

But no you don't, says the government. Just look at the text of the statute. Dubin "used" a means of identification of the patient "in relation to" committing health care fraud, a predicate felony.  The text governs, and the text is satisfied. So Dubin is guilty.

There's also a narrower debate in the briefs about how the "without lawful authority" element applies to the facts.  Dubin says that wasn't satisfied because the patient authorized using his identifying information to submit bills to Medicaid. So use of the identifying information was authorized. The government replies that the notion of authority has to be interpreted more narrowly. The patient authorized submitting bills to Medicaid, but that was exceeded by submitting a fraudulent bill.

Amicus briefs in support of Dubin were filed by NACDL, the National Association of Federal Defenders, and Professor Joel Johnson.

C. My Thoughts on the Case

I think Dubin has the better argument on the whole, whether the Court wants to rule more narrowly or more broadly.

On the broad issue, I'm a fan of construing vague criminal statutes narrowly, so it's easy for me to be on Dubin's side there.  But I think Dubin also has a good textual argument, under the interpretive principle that "Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes." Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001).

Under the government's reading, § 1028A is an elephant. It essentially overrides Congress's carefully considered judgments about punishment for dozens of statutes.  Congress has written out detailed provisions for the statutory punishments and enhancements of offenses in Title 18.  Given the large number of crimes that are predicate offenses for § 1028A, and that the extra two years of punishment for violating 1028A is such a heavy hammer, the government's interpretation would mean that the careful judgments throughout Title 18 would be subsumed by § 1028A.  I think the Court should be cautious about construing the statute to have that kind of massive multi-section effect, especially given the weird results it would cause.

Dubin's reply brief addresses this argument, but let me give an example that shows how broadly the government's 1028A elephant steps.   The federal computer hacking statute, known as the Computer Fraud and Abuse Act (CFAA), is found at 18 U.S.C. § 1030.  Although most CFAA crimes have nothing to do with fraud, any felony violation of § 1030 is a predicate offense for § 1028A. This is because one of the eleven categories includes "any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7)." 18 U.S.C. § 1028A(c)(4).  That chapter refers to Title 18's Chapter 47, spanning § 1001 to § 1040.  That's a lot of crimes!  And it means that any felony violation of the CFAA is a felony predicate for aggravated identity theft, whether it has to do with fraud or not, just because the CFAA was placed within Chapter 47.

The government's interpretation of § 1028A would lead to bizarre results for CFAA sentencing. Congress has been really specific in drafting the punishments for CFAA violations.  It has carefully described what is a felony and a misdemeanor, and what the statutory maximum punishment should be for various felonies, see 18 U.S.C. § 1030(c).  It has thought carefully about whether there should be mandatory minimums for CFAA violations; it added 6-month mandatories for some CFAAA in the 90s, and then removed them in 2001 after the minimums proved a failure.  And it has tasked the Sentencing Commission with rethinking Guidelines offenses for Section 1030 offenses. See Homeland Security Act of 2002, Pub. L. 107-296 § 225(b), (c).

If the government's interpretation of § 1028A is correct, however, what really matters for CFAA punishment is whether the hacking involved someone else's password.  If you hack into someone's account by exploiting a security flaw, that's just a standard CFAA offense and you'll probably get probation unless a lot of dollar loss occurred.  But if you hacked into someone's account by using their password without permission, now you're in deep trouble: That password is a "means of identification" under § 1028A, so now your hacking is Aggravated Identity Theft and you'll go to prison for two years because a password was used.  (This isn't a hypothetical; see United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011), in which this reasoning was used, and at least on plain error review, upheld.)

Under the government's view, all the careful statutory work Congress has put into CFAA sentences would be largely beside the point.  And it would lead to a bizarre result, in which using a person's password would become the most important question in determining punishments for hacking.  It's all very odd, and very far removed from anything resembling identity theft.  Replicate that process for all the other predicate felony offenses covered under § 1028A(c), and it seems unlikely that the vague language of § 1028A should  effectively supplant all those other statutory punishment sections.

It's possible that the Court would instead resolve Dubin on narrower grounds, such as the "without lawful authority" element. I think Dubin has the better argument there, too. As I see it, this is similar to the issue the Court grappled with recently in Van Buren v. United States, 593 U.S. ___ (2021), on what "exceeds authorized access" and "without authorization" mean under the federal computer hacking statute. Like Van Buren, Dubin had authorization to use the relevant information, but then used it to do something he wasn't supposed to do. The parties (represented by the same lawyers as in Van Buren, as it turns out) are arguing over similar ground as in Van Buren, it seems to me. The question: Does authorization include having information you're allowed to use but then putting it to other uses? I think the answer following Van Buren should be "yes," which, as I have detailed here (see pages 181-84), matches the traditional treatment of lack of authorization elements in other criminal statutes.

As always, stay tuned.

[UPDATE: I have fiddled a bit with this after posting to correct typos, etc.]

Free Speech

Crowd-Checking Forthcoming Amicus Brief on the Solicitation Exception in U.S. v. Hansen


The U.S. Supreme Court has agreed to hear U.S. v. Hansen, a case having to do with when speech encouraging civilly prohibited but not criminal conduct (there, remaining in the U.S. without proper immigration authorization) can be criminally punished. I think the answer should be that the solicitation exception to the First Amendment allows (1) the criminal punishment of solicitation of criminal conduct, but (2) only civil liability for solicitation of merely civilly actionable conduct. I had filed a brief on this and other matters in U.S. v. Sineneng-Smith, and this particular question was discussed during oral argument; so I thought I'd file such a brief here in Hansen, focusing on this question. (I plan on sending it to the printer Tuesday morning.)

Because the brief is on my own behalf, my only interest is in getting things right, not in serving a particular client. I therefore thought I'd post it here, and ask for any suggestions for how it can be improved or corrected; please post them in the comments, or e-mail me at volokh at Thanks!

[* * *]

Summary of Argument

The "speech integral to criminal conduct" exception is a tremendously important feature of First Amendment law. It is the basis for criminalizing solicitation of crime. Volokh, 101 Cornell L. Rev., supra, at 991-93. It has also historically influenced the incitement exception, id. at 993-97, the fighting words exception, id. at 997, the child pornography exception, id. at 999, and the true threats exception, id. at 1003.

It is therefore important that the boundaries of the doctrine be defined precisely, and not unduly broadly. In particular, because the premise of the doctrine is that speech should be legally tantamount to the crime to which it is integral, only solicitation of criminal con­duct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct—such as solicitation of remaining in the country unlawfully, U.S. Br. at 38—cannot be made criminal, though this Court's recent cases suggest that it can be punished civilly.


I. Solicitation may be criminally punished as "integral to criminal conduct" only if it consists of solicitation of crime

Who cut Samson's hair? Many would quickly answer, "Delilah." But the Bible actually says (Judges 16:19 (King James)),

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Joe Biden

Supreme Court Cancels Oral Argument in Title 42 "Public Health" Expulsion Case

The move makes it more likely that Title 42 expulsions of migrants will end in the near future.


Yesterday, the Supreme Court canceled previously scheduled oral arguments in Arizona v. Mayorkas, a case involving Title 42 "public health" expulsions of migrants at the southern border. The Court didn't give a reason for the cancellation, nor did it indicate whether the arguments are going to be rescheduled. But most likely, the justices called off the oral argument because they think the case will soon become moot, thanks to the Biden Administration's plan to terminate the Covid-19 national emergency by May 11.  If so, the Court's termination of the argument might pave the way for Title 42 expulsions to end in the near future.

Title 42 expulsions were instituted by Donal Trump in March 2020, for the ostensible purpose of preventing the spread of Covid to the United States, and later continued by Biden. The current version of the Centers for Disease Control order authorizing expulsions says they are scheduled to end whenever the Covid state of emergency is lifted.

The issue before the Court only involves a motion for intervention in the case filed by a group of red states who claim the Biden Administration wasn't defending Title 42 aggressively enough. The justices were not planning to consider the underlying issue of whether Title 42 expulsions are legal. But if the intervention issue is moot, it is because the same thing is true of the case as a whole.

If that really is the view of the Court, then I would expect them to soon lift their stay of the district court injunction mandating an end to Title 42 expulsions. That would require the Biden Administration to terminate the policy even before May 11.

Even if the stay isn't lifted before May, the conclusion that the Arizona v. Mayorkas is moot also implies that the same thing is true of a separate case in which a district court in Texas ruled that it was illegal for the administration to terminate the policy without going through the notice and comment process required by the Administrative Procedure Act.

I discussed the status of the two Title 42 cases and interaction between them in greater detail here and here. As explained in those previous posts, if the Supreme Court lifts the stay of the injunction against Title 42 expulsions, that one will likely take precedence over the one blocking the Administration's attempt to end the policy.

It's theoretically possible that Supreme Court just plans to reschedule the oral argument for a later date. It's also possible that the two Title 42 cases will not become moot for reasons I summarized in my last post on this topic:

The cases won't become moot until May 11. It would be unusual for the Supreme Court and the Fifth Circuit (which is handling the ruling against the effort to end expulsions) to complete all their deliberations so quickly. But they could potentially do so. The courts might also find technical reasons to conclude that one or both of these cases remain live controversies….

In addition, the Administration could potentially decide to extend the Covid emergency again…. For a long time, Biden has been playing a kind of double game with Title 42 expulsions, simultaneously claiming to want to end them, yet also continuing to defend them in court and even expand their use. As with Trump before him, Biden's use of Title 42 expulsions has been guided far more by political considerations than scientific ones. It's possible that the Administration will reverse course again, if it sees some advantage in doing so.

Despite these caveats, I think the most likely scenario is that the cases will indeed become moot, and Title 42 expulsions will likely end by May 11, or perhaps even before that time. Yesterday's announcement makes that even more probable than before. Amng other things, the cancellation of the Arizona v. Mayorkas oral argument makes it even less likely that the Supreme Court will decide that case before May 11.

In my view, Title 42 expulsions were illegal from early on, once it became clear that Covid-19 was established in the United States. Trump and Biden deserve severe censure for continuing this illegal and extraordinarily harmful policy long past the point where it was clear it has no real public health benefits.

I would have preferred for the courts to simply rule the policy is illegal. But mooting out the cases involving the policy may be preferable to continuing the litigation for many more months, during which time expulsions might have continued.

We will likely soon have a more definitive resolution of the mootness question. But the cancellation of the oral argument is a strong indication that the Supreme Court is moving in the direction of embracing the Biden Administration's position that these cases are going to become moot by May 11.

Free Speech

Right of Access to Court Records Applies Even Absent Any Current "Substantial Public Interest in This Case"

"[P]ublic access is designed not only to allow the press and the public to follow high-profile cases, but also to permit ongoing and future access. Law students or legal scholars review case files for law review articles, attorneys review past cases when similar litigation arises, and litigation may be a source of information for policy-makers considering, for example, safety regulations or for journalists reporting more broadly on either the courts or the subject matter of particular litigation."


From Judge Irene Berger's decision yesterday in Lomangino v. Polaris Industries Inc. (S.D. W. Va.), which strikes me as quite correct:

Documents attached to a motion for summary judgment are subject to the First Amendment [right of access to court records] standard, even if the documents were "the subject of a pretrial discovery protective order." … [D]iscovery is "ordinarily conducted in private," while dispositive motions can "serve[ ] as a substitute for trial["] ….. Thus, … access can be restricted only if there is a compelling countervailing interest. Any such restriction must be narrowly tailored….

The bulk of the material that the Defendants seek to seal consists of expert reports and discovery documents that were subject to a protective order based on asserted proprietary business interests. Protection of trade secrets may, in some circumstances, be sufficient to justify sealing documents. However, the party seeking to restrict access bears the burden of demonstrating specific reasons sufficient to overcome the public right of access.

The Defendants offer only a bare assertion that these documents contain confidential and proprietary information, including trade secrets. They do not identify specific information that constitutes trade secrets or proprietary business information, and they do not detail the harm that would result from public access to that information.

The documents the Defendants seek to seal are central to this litigation and the dispositive motions at issue. Sealing the expert reports and other material in their entirety would leave anyone reviewing the motions, and any opinion resolving the motions, without the ability to discern core information and evidence.

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Free Speech

Public University Committee Members' Names Aren't Protected by the Right of Expressive Association

The University of Washington thus wasn't barred by the First Amendment from disclosing such names in response to a People for the Ethical Treatment of Animals public records request.


From Sullivan v. Univ. of Washington, decided today by the Ninth Circuit (Judge Sandra Ikuta, joined by Judge Daniel Collins and District Judge Sidney Fitzwater [N.D. Tex.]):

Appointees to a university committee created to satisfy federal legal requirements [related to animal welfare in research] sought to enjoin the university from releasing the letters appointing them to the official committee. {People for the Ethical Treatment of Animals (PETA), an organization opposed to the use of animals in research, [had] filed a public records request with the University pursuant to Washington's Public Records Act (PRA).} The appointees claimed that the disclosure of such letters, which contain their personal identifying information {such as names, email addresses, office addresses, and work affiliations}, would violate their First Amendment right of expressive association.

The district court held that there was a serious question on the merits of that argument and preliminarily enjoined the disclosure. We disagree. The committee members' performance of their official duties is not protected by the First Amendment right of expressive association, and so the disclosure of public records that relate to performance of such duties does not impinge on that right….

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Will Chief Justice Roberts Respond To Senator Wyden's Attack On Judge Kacsmaryk?


In March 2020, Senator Charles Schumer stood outside the Supreme Court and assailed the two newest members:

"I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the priceYou won't know what hit you if you go forward with these awful decisions."

That same day, Chief Justice Roberts released a forceful response to Schumer's remarks:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that "You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions." Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

And in 2018, after President Trump tweeted about "Obama judges," Chief Justice Roberts released another statement:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,"

Yesterday, Senator Ron Wyden unleashed a vituperative attack on Judge Kacsmaryk of the Northern District of Texas. Wyden echoed many of the barbs that have been repeated, over and over again, on Slate, Vox, and elsewhere.  Here are some of his remarks:

Legal logic be damned, the plaintiffs know that Judge Kacsmaryk won't let pesky obstacles like standing or precedent get in the way of the agenda they share.

That's because Donald Trump and conservative activists planted him on the bench in that Amarillo courtroom. They know he has spent his entire career fighting shoulder to shoulder with them against LGBTQ equality, abortion, and contraception.

He is there for the purpose of what I'll call "courtwashing."

In the courtwashing scheme, it's his role to give the appearance of judicial legitimacy to the outcomes that right-wing activists know they're getting as soon as their cases show up on his docket.

In the few years that Judge Kacsmaryk has been on the federal district court, he has earned the title of the most lawless judge in the country. It's tough to earn that kind of infamy in such a short time, but his rulings have justified it. . . .

The awful reality is, from the moment this case landed in front of Judge Kacsmaryk, it's been a rigged game all along. It's illegitimate. The case is an affront to the Constitution and to the rule of law in the United States of America.

So here's what must happen if and when Judge Kacsmaryk issues his nationwide injunction halting access to mifepristone.

President Biden and the FDA must ignore it.

Wyden's remarks make Schumer's seem tame. When will Chief Justice Roberts release a statement? Certainly Chief Justice Marshall can be cited here.

Title IX

Private College Coaches' Flexibility to Eject Team Members Based on Condemnation by Teammates

"Coaches must generally consider a variety of factors—both objective and subjective—in managing a team, and these factors include concerns about distractions, team cohesion, and morale."


From a decision Tuesday in Doe v. Haverford College, handed down by Judge Gerald Austin McHugh (E.D. Pa.):

Plaintiff is a senior at Haverford College … and has been a member of a varsity sports team since his first semester as a freshman. Plaintiff became a captain of his team during his junior year. The parties agree that Plaintiff had no issues with his coaches and teammates during his first two and a half years on the team.

During the spring semester in 2022, a rumor began to circulate that Plaintiff had sexually assaulted an unnamed female student on the Haverford campus. According to Plaintiff, the rumor contained no specific details about the alleged assault, and Plaintiff has consistently denied any physical or sexual contact with the student identified as the victim of an assault. Two of John's co-captains reported the allegation to their coach in early February of 2022. The coach advised John that he was required to report allegations of sexual misconduct due to his position and notified Haverford's Title IX Office of the allegation. The coach suggested to John that he step away from the team until it was resolved, and that same day Plaintiff notified his teammates via email of his intention to briefly step away from the team.

The Title IX Office reviewed the information provided by John's coach and considered whether it would open a formal investigation into the allegation. At some point, the Office also communicated with the alleged victim, who stated that she did not intend to file any formal complaint against Plaintiff. After conducting this preliminary inquiry, the Title IX Office did not open a formal investigation and communicated to Plaintiff that he could continue his life at Haverford as normal.

Shortly thereafter, Plaintiff met with his coach, informed him of the Title IX Office's conclusion, and asked to rejoin the team. The coach, however, advised John that he was no longer welcome on the team, as the other captains did not want him to rejoin. At a follow-up meeting on March 15, the coach allegedly advised John that the other captains' position was driven by their belief in the veracity of the sexual assault allegation. One week later, on March 22, Plaintiff had another meeting with his coach, the Title IX Coordinator, the Athletic Director, and the co-captains. At this meeting, his co-captains emphasized that their opposition to Plaintiff returning to the team was driven by (1) the sexual assault allegation and (2) unspecified misogynist behavior by Plaintiff. The coach, relying on these statements by the co-captains, stated at the meeting that Plaintiff would not be allowed to rejoin the team.

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