From a press release last month, just posted on Westlaw:

N.C. Detective Agency, a Durham-based security company, will pay $65,231 in compensatory damages and back pay, and take other corrective actions to voluntarily resolve a religious discrimination investigation by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC's investigation found reasonable cause to believe that an employee requested to be excused from work due to a Muslim religious holiday, but the request was denied. The company was aware of the employee's need for a religious accommodation but did not engage in the legally required interactive process, and instead terminated her in June 2025 when she did not report for duty.

And from another press release two weeks later, also just posted on Westlaw:

Reynolds IGA Foodliner, Inc., owner and operator of a chain of grocery stores, will pay $65,000 and provide other equitable relief to settle a religious discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the suit, shortly after she was hired as a deli clerk at the Piggly Wiggly store in Hazlehurst, Georgia, the employee requested Sundays off to observe her Sabbath. The employee's supervisor denied the request, claiming that, if the store gave the employee Sundays off, it would have to do the same for all other employees. The employee continued to request the accommodation, and the company fired her in January 2025.

More from the second press release:

"Employers cannot deny religious accommodation requests simply for fear of upsetting other employees," said Marcus G. Keegan, regional attorney for the EEOC's Atlanta District. "The EEOC remains committed to enforcing federal anti-discrimination law and protecting employees' rights to religious freedom."

Darrell E. Graham, director of the EEOC's Atlanta District, said, "Employers must thoughtfully consider each request for religious accommodation on an individual, case-by-case basis and otherwise make good-faith efforts to accommodate their employees' religious beliefs. Employers must be aware of their obligations under federal law to provide reasonable religious accommodations absent undue hardship."

Finally, from a third press release from last month (it was published in between the first two, but was again just posted on Westlaw); this one involves a lawsuit and not a settlement:

Blue Bell Creameries, Inc., a Brenham, Texas-based frozen snack manufacturer and distributor with a production facility in Sylacauga, Alabama, unlawfully terminated a Jewish body shop technician soon after he requested a beard‑related religious accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.

Even supporters of bans on religious discrimination by private employers might debate whether employers should be required to give religious exemptions from generally applicable rules (exemptions that could themselves be seen as discrimination in favor of religious observers). But Congress has indeed mandated such exemptions: Title VII of the Civil Rights Act, as amended in 1972, generally requires employers to accommodate religious objectors' requests for exemptions from generally applicable work rules, unless doing so would pose an "undue hardship" for the employer.

That extends to time off for religious holidays: Indeed, the leading recent case on the subject, Groff v. DeJoy, involved a Christian employee's request for an exemption from having to work Sundays. And of course it extends, as it must, to all religions.

The post $65K Settlements with EEOC Over Failure to Accommodate Muslim and Christian Employees' Religious Days Off appeared first on Reason Magazine.

So reports the N.Y. Times (Mark Arsenault) yesterday, discussing former MIT cellular biology professor David Sabatini's victory on the defamation claim (and defendant's loss on her harassment and retaliation counterclaim). More details:

[Sabatini] was forced out of his lab in 2021 after an internal Whitehead [Institute] investigation concluded he had a past sexual relationship with a younger and less experienced colleague, Kristin Knouse, over whom he had a career-influencing role. The investigation also found that his lab had maintained a sexualized atmosphere. Dr. Knouse said that the relationship was coerced.

But Dr. Sabatini denied his lab had an improper atmosphere. He maintained that his relationship with Dr. Knouse had been consensual and that Dr. Knouse had schemed to get him fired and disgraced after he became interested in another woman….

After he was pushed out of M.I.T. and the Whitehead, he had talks with New York University about a job. But N.Y.U. staff members and students protested in the streets against his hiring in 2022, and the university did not hire him.

In 2023, he was hired by the Institute of Organic Chemistry and Biochemistry, in Prague, and later opened a Boston-area branch of that institute….

According to the Boston Globe (Madyline Swearing, Bryan Hecht & Tonya Alanez), "In 2023, New York hedge fund billionaire Bill Ackman and an anonymous donor pledged $25 million over five years to help Sabatini get back into science." The Globe also reports that the jury consisted of "seven women and six men," for whatever that's worth.

Here's an excerpt of what Sabatini alleged (quoting a Massachusetts appellate decision in the case, later reversed as to Knouse's counterclaim by the Massachusetts high court):

Sabatini and Knouse met in 2012. At the time, Sabatini was a tenured member of the department of biology at the Massachusetts Institute of Technology (MIT) and ran his own laboratory at Whitehead, a research institute affiliated with MIT that receives funding from private resources such as the Howard Hughes Medical Institute (HHMI) and public resources such as the National Institutes of Health (NIH). {As pertinent here, Whitehead and HHMI have a relationship whereby HHMI provides funding for, and in some instances employs, individuals working at Whitehead. At all relevant times, both Whitehead and HHMI employed Sabatini. In addition, NIH provided grants that funded Sabatini's research at Whitehead.}

Knouse was enrolled in an inter-institutional M.D./Ph.D. program at Harvard and MIT, where Sabatini was one of her instructors and served on her thesis committee. While Knouse was a doctoral student, she and Sabatini sometimes socialized.

Then, in 2018, Knouse started a fellowship at Whitehead, and she and Sabatini began a sexual relationship. While the relationship ended in 2019, Knouse sent text messages to Sabatini in January 2020 seeking to rekindle their relationship. Sabatini responded, asking Knouse to stop and stating that he wanted peace and needed space to figure things out.

In early 2020 through the fall of 2020, Knouse began telling colleagues, both at Whitehead and MIT, that Sabatini had sexually harassed her. In October 2020, Knouse reported the alleged sexual harassment to Lehmann. Around that time, Whitehead hired a consultant to conduct a diversity survey at Whitehead. During the survey, some Whitehead employees reported concerns about Sabatini. In response, Whitehead hired the law firm of Hinckley, Allen & Snyder LLP (HAS) to investigate the culture within Sabatini's laboratory. The HAS investigators spoke with Knouse and other members of the Whitehead community. In interviews with the HAS investigators, Knouse repeated her allegations that Sabatini had sexually harassed her.

On August 13, 2021, HAS sent a report to Whitehead finding that Sabatini had committed sexual harassment. Whitehead forwarded the report to MIT and HHMI. On August 19, Whitehead provided Sabatini with a copy of the report. On August 20, Sabatini resigned after learning that Whitehead was about to terminate his employment. {Before Sabatini resigned, his coemployer at Whitehead, HHMI, terminated his employment. MIT placed Sabatini on leave.}

And here's what Knouse alleged (quoting the Massachusetts high court decision); the jury verdict suggests that the jury largely believed Sabatini's story rather than Knouse's:

Sabatini was a laboratory director at the Whitehead Institute for Biomedical Research (Whitehead) and a tenured professor at the Massachusetts Institute of Technology (MIT) in 2012 when he met Knouse, then a graduate student at Harvard University and MIT. Sabatini was one of Knouse's instructors at MIT and served on her dissertation committee.

During a discussion in 2016 concerning whether Sabatini would endorse Knouse's application for an upcoming fellowship at Whitehead, Sabatini expressed concern that Knouse took herself too seriously and asked Knouse whether she ever had "fun," "fuck[ed] around," or had sex. Knouse responded that she did have fun and quickly left the conversation. Subsequently, Sabatini recommended Knouse for the fellowship and supported her grant application, both of which she secured.

Knouse joined Whitehead as a fellow in 2018. That year, Knouse and Sabatini began a sexual relationship that ended in 2019; thereafter, Sabatini continued to make sexualized comments to her. Knouse asserts that she struggled under this dynamic. Sabatini, whose laboratory was next to Knouse's, was the director of the Whitehead fellows program, and he served as a mentor and reviewer of her work. Knouse feared the potential consequences that losing an influential mentor would have on her career and believed she could not terminate the relationship without professional repercussions. She "began to withdraw from the scientific community" and "experience[d] debilitating feelings of entrapment and hopelessness."

Around this period, the results of a 2020 culture survey of Whitehead "suggested that Sabatini either personally engaged in sexually explicit and inappropriate discussions or fostered an environment that tolerated—or promoted—such inappropriate discussions and that he threatened those who might report his conduct." The survey results "amplified complaints" raised by two women, who had trained in Sabatini's laboratory, and by Knouse, who contemporaneously disclosed to the director that she had felt harassed during her fellowship but, fearing retaliation, did not provide any further details.

In response, Whitehead hired an independent legal team to investigate. The investigators determined, inter alia, that Sabatini had "engaged in and otherwise tolerated sexist and sexualized work discussions with his lab," and that engaging in such discussions "was an implicit part of succeeding in" Sabatini's laboratory. They also concluded that there was a "culture of fear and retaliation" within the laboratory. They reported that Sabatini had "engag[ed] in sexual relations with a Whitehead Fellow" and violated several Whitehead policies, including its sexual harassment policy.

Sabatini resigned from his Whitehead position. MIT announced that it was placing Sabatini on leave to perform its own investigation.

Sabatini's claims against Whitehead had earlier been dismissed (see, e.g., this decision).

Lisa Arrowood, Shayne Kinsella, and Sarah Sousa (Arrowood LLP) represent Sabatini.

The post $6M Verdict in #TheyLied Defamation Lawsuit Brought Over Sexual Harassment Allegations appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

Some colorful lawyer wisdom (see, e.g., Dunn v. U.S. (5th Cir. 1962)); I found versions of this in newspapers going back to 1931, though it may have been a familiar phrase even then.

The post "If You Throw a Skunk into the Jury Box, You Can't Instruct the Jury Not to Smell It" appeared first on Reason Magazine.

From Nunes v. NBCUniversal Media, LLC, decided yesterday by Judges Guido Calabresi, William J. Nardini, and Eunice C. Lee:

Nunes brought a single claim for defamation under New York law based on (as relevant here) a statement made by Rachel Maddow, host of The Rachel Maddow Show ("TRMS") on MSNBC (owned by NBCUniversal), for which Cory Gnazzo served as the executive producer.

In December 2019, Nunes, who was then a congressman and ranking member of the House Permanent Select Committee on Intelligence ("HPSCI"), received something known as the "Derkach Package," from Andrii Derkach—a Russian agent linked to Russian efforts to influence the U.S. presidential election in 2020. The Derkach package was the subject of public discussion over a long period of time, including in a declassified Intelligence Committee Assessment that was released on March 16, 2021.

Two days after that release, on March 18, 2021, Maddow reported on the Derkach package incident, saying on TRMS that Nunes "refused to hand it over to the FBI, which is what you should do if you get something from somebody that is sanctioned by the U.S. government as a Russian agent." Nunes provided the court with evidence that Maddow's statement (the "Statement") was false. More specifically, a former staff member from the HPSCI testified in a deposition that the package, addressed to Nunes, was received by committee staff, placed in a secure location, and turned over to the FBI about two days after its arrival.

The court held that Nunes hadn't introduced enough evidence that Maddow spoke with "actual malice," which means knowing the statement was false or likely false:

[T]he undisputed evidence showed that Maddow and Gnazzo relied on the earlier-published Politico article and that such reliance cannot support a finding of actual malice. The Politico article stated that the Derkach packets had been sent to four people: Nunes, Senators Graham and Grassley, and then-White House Chief of Staff Mulvaney. According to the article, "Graham and Grassley denied having received the material, and Mulvaney and Nunes declined repeated requests for comment. One person familiar with the matter said the information was not turned over to the FBI."

Nunes argues that the Politico reporting does not support Maddow's statement that Nunes "has refused to hand [the Derkach Package] over to the FBI." But that is a natural reading of the Politico article. The dictionary definition of "refuse" cited by Nunes includes this meaning: "to show or express an unwillingness to do or comply with." According to Nunes, this definition shows that a person can "refuse" to do something only if he is "unwilling[ ] to … comply with" a request that he do so, and there was nothing in the Politico article to indicate that he had received any such request. But that is only one possible scenario covered by those words.

Nunes overlooks the other part of the definition that he himself quotes: that a person can be said to have "refused" to do something if he has "show[n] an unwillingness to do" it. Here, the Politico article clearly indicates that Graham, Grassley, Mulvaney and Nunes were all sent the material in question, and none of them gave it to the FBI. A fair paraphrase of this reporting, that Nunes got the Derkach Package but did not turn it over to the FBI, is that he was not willing (i.e., he refused) to give it to the FBI. Of course, the Statement did not parrot the Politico article word for word. But "[l]iteral accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made."

Maddow and Gnazzo's undisputed reliance upon the Politico article defeats Nunes' defamation claim. In New York Times v. Sullivan (1964), the Supreme Court held that a defendant's reliance on a responsible source negates a finding of "the recklessness that is required for a finding of actual malice." "Similarly, this Court has held that where reporters' false statements in an article were based on reliable sources, the defendant could hardly be accused of gross negligence, much less actual malice."

Nunes provided no evidence at the summary judgment stage that provided any basis for a reasonable inference that Maddow or Gnazzo should have regarded the Politico article as unreliable. We therefore agree with the district court's holding that Nunes failed to present evidence that NBCUniversal or its employees acted with actual malice sufficient to defeat summary judgment….

Elizabeth A. McNamara and Jeremy Chase (Davis Wright Tremaine LLP) represent defendant.

The post Devin Nunes Loses Libel Suit Based on Rachel Maddow Show Statements appeared first on Reason Magazine.

From Lajara v. McMenamin, decided Wednesday by Pennsylvania Superior Court judge Brandon Neuman, joined by Judges Jack Panella and Carolyn Nichols:

Mother argues the trial court erred by entering paragraph 111 of the final custody order, which allows Child to decline attendance at religious or faith-based events beginning at the age of 14, and prohibits both parents from influencing, restricting, or limiting Child's participation in those events before or after age 14. In doing so, Mother claims this provision "infringe[s] upon the parties' First Amendment right to the free exercise of religion and the parties' fundamental right to parent their child." …

Under the Due Process Clause of the Fourteenth Amendment, a parent has a fundamental right "to make decisions concerning the care, custody, and control of the child." Under the Free Exercise Clause of the First Amendment, an individual has a right to religious freedom. Read together, parents have the constitutionally-protected "right to direct the religious upbringing of their children." [Under Pennsylvania precedent,]

[A] court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime. However, … it may do so only where it is established that advocating the prohibited conduct would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens….

[E]ach parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in absence of the proposed restriction….

While the harm involved may be present or future harm, the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to 'contradictory' religions would be a patently insufficient 'emotional harm' to justify encroachment by the government upon constitutional parental and religious rights of parents, even in the context of divorce….

As noted by Mother, "[n]either party in this matter requested the trial court order any form of relief regarding the exercise of their religious beliefs or … [C]hild's attendance and participation in religious activities. No evidence regarding either party's religion or … [C]hild's attendance and participation in religious activities was presented at trial." The trial court explained its reasoning for this provision, stating:

This trial court was forced to anticipate, to the best of its ability and in light of the factors proscribing stability and consistency for … Child, that a high level of conflict is more than likely to arise as it pertains to religious activities. To put it simply, these parents have demonstrated that any disagreement or dispute has and can easily escalate quickly into full scale conflict that does nothing more than cause instability and emotional trauma to … Child.

As such, this trial court proactively prescribed a solution to any issues that may arise regarding … Child's attendance and participation in religious activities. This trial court acknowledges that neither parent raised the issue of religious activities[;] however, the tumultuous history of this case does not produce any optimism on the part of this trial court that they will be able to communicate and cooperate if religious participation becomes an issue. As such, it is in … Child's best interests to preemptively place parameters on his attendance and participation in religious activities….

Though we recognize the parties' behaviors do not produce optimism that religion will not become an issue in the future, based on the record before us, the restrictions set forth in paragraph 111 are contrary to our case law since there is no indication the parties' religious beliefs or practices present a "grave threat of harm," "a substantial threat of present or future, physical or emotional harm to the child[,]" or that the physical or mental health, or safety of the child would be jeopardized absent a restriction. Accordingly, the trial court erred in setting forth paragraph 111 of its January 6, 2026 order. Consistent with precedent, both parents shall be permitted to practice his or her religion with Child during their respective periods of custody, so long as there is no substantial threat of present or future physical or emotional harm to Child….

The post Anticipated Religious Clashes Can't Justify Current Restriction on Parents' Religious Upbringing of Child appeared first on Reason Magazine.

From today's decision by Judge Richard Mark Gergel (D.S.C.) in Bingham v. Wilson:

Plaintiffs filed this lawsuit on behalf of several South Carolina physicians seeking injunctive and declaratory relief against South Carolina's Abortion Ban….  [Plaintiffs] seek an order: "(1) requiring all counsel and witnesses to refer to Dr. Doe using her pseudonym at trial; (2) closing the courtroom to the public and members of the press during Dr. Doe's testimony; and (3) permitting limited redactions to the trial transcript to conceal any educational or professional information that could indirectly identify Dr. Doe." Defendants have not filed any memoranda opposing the instant Motion….

The court refused to close the trial during Dr. Doe's testimony:

The Supreme Court has noted that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open[,] … [and] historically both civil and criminal trials have been presumptively open." … "For many centuries, both civil and criminal trials have traditionally been open to the public" ….

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Applying these principles, the Supreme Court held that the right to a public trial may give way to a complete closure of the courtroom if: (1) the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced, (2) the closure is no broader than necessary to protect that interest, (3) reasonable alternatives to closing the proceeding are considered by the trial court, and (4) findings adequate to support the closure are made by the trial court…. When a party seeks only a partial closure of the courtroom, such as "where an exclusion is temporally limited to a portion of the hearing," a "less demanding" test applies, which permits a court to order closure if the moving party establishes "a substantial  reason"  rather  than  an  "overriding  interest"  justifying  closure….

[T]he Court will not close the Courtroom proceedings during Dr. Doe's testimony. Here there are not sufficient circumstances to warrant closing the courtroom given the public's right to access and interest in the proceedings, especially given the nature of this case. As discussed above, civil trials are presumptively open and are a hallmark of our democratic forum of government as open trials "embod[y] a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." …

The Court takes Dr. Doe's concerns about her safety very seriously. But the Court finds that the public's right of access to access is high in this case given its subject matter. As such, the record before the Court does not warrant closing the proceedings to the public when alternative measures can ensure her safety. The Court therefore will not close the Courtroom during Dr. Doe's testimony….

But it allowed her to proceed as Dr. Doe at trial:

[A]bortion is a divisive issue and there is a long "national history of harassment and violence towards abortion care providers." Women's Health Ctr. of W. Virginia v. Sheth (S.D. W. Va. 2023) (granting an abortion provider's motion to proceed pseudonymously because "retaliation is a genuine concern" for abortion providers and there is a serious risk of "harassment, threats, or other retaliatory action taken by those that disagree with access to abortion care"); see Roe v. Aware Woman Ctr. for Choice, Inc. (11th Cir. 2001) (holding that plaintiffs in abortion cases may be allowed to proceed anonymously and collecting cases). Moreover, the Court finds Dr. Doe's expressed concern of retaliation against herself compelling because she has been the target of threatening mail and doxing by anti-abortion activists…. [This] risk of physical … harm to plaintiff … weighs in favor of allowing her to proceed anonymously….

[Plaintiff's claim is also made stronger] given her previously stated desire to protect her children from harassment and retaliation by remaining anonymous.

The [claim being against the government] weighs in Plaintiff's favor because "[a]ctions against the government do no harm to its reputation, whereas suits filed against private parties may damage their good names and result in economic harm." … [And] the threat of prejudice to Defendants to be minimal since Dr. Doe has proceeded anonymously up to this point and because there is no risk of jury confusion since this is a bench trial. See James v. Jacobson (4th Cir. 1993) (recognizing the "concern that the jury's very knowledge that pseudonyms were being used" could "tend to validate" the plaintiff's claims); Doe v. Ayers (9th Cir. 2015) (noting "risk that the … use of pseudonyms might prejudice the jury" in the anonymous party's favor). Based on the circumstances of this case, the Court finds that Dr. Doe's stated interests in protecting herself against retaliation and harassment can be balanced with the public's interest in the openness of judicial proceedings by allowing Dr. Doe to proceed under a pseudonym at trial.

And the court also concluded that it "will partially redact the portions of the transcript that could indirectly identify Dr. Doe":

Additionally, the Court finds that redaction of selected portions of the trial transcript is an appropriate alternative to sealing the transcript in its entirety. This decision strikes an appropriate balance between the public's right of access to judicial records and proceedings and Dr. Doe's interest in her safety. This is especially true because the public's right to access Dr. Doe's education and professional information is limited, especially given the Court's decision to allow her to proceed anonymously due to her safety concerns. Furthermore, the public will retain access to trial records except for Dr. Doe's identity and the related information that could identify her. The Court also believes that this is a reasonable alternative to closing proceedings and no greater than necessary. Thus, the Court finds that the same safety measures as closing the Courtroom can be achieved with reasonable alternative measure of allowing Dr. Doe to proceed anonymously and redacting the portions of transcript….

As such, it is ORDERED that Counsel and witnesses will refer to Dr. Doe using her pseudonym at trial and that the trial transcript will be partially redacted to conceal any educational or professional information that could indirectly identify Dr. Doe. However, the Court will not close the Courtroom during Dr. Doe's testimony….

This leaves open the possibility that a spectator who knows what Dr. Doe looks like will see her in court and publicly identify her—nothing in the order forbids that—or that identifying information that is orally presented at trial will be publicized by a spectator even if it's redacted from the trial transcript. But presumably the judge concluded that this risk is relatively modest, and is justified by the need to preserve public access to the trial.

The post No Closed Courtroom When Plaintiff Dr. Jane Doe Testifies in S.C. Abortion Ban Challenge appeared first on Reason Magazine.

The article is here; from the Introduction:

According to the Supreme Court of the United States, I am the lead singer of The Slants. I am not. I have never been. I am the bassist—the founder, the bassist, and the person who spent the better part of a decade fighting the federal government over the right to use our band's name. Anyone who has ever listened to our music, attended one of our shows, or spent a few moments searching our name would know this. But the Supreme Court's opinion in Matal v. Tam says otherwise, and because it does, so do the law review articles, the IP textbooks, and the classroom discussions that have built up around the case in the years since it was decided.

I raise this not to embarrass anyone. I raise it because it is a precise and verifiable illustration of something that practitioners and scholars who study Matal v. Tam should understand: The legal record of a landmark case is not the same thing as what actually happened. The opinion is not the case. The briefs are not the strategy. And the story that has calcified in the legal literature—about what this case was, how it developed, and why the decisions made along the way were made—contains gaps and errors that only a firsthand account can correct.

This article is that account.

Almost a decade has passed since the Supreme Court unanimously struck down the disparagement provision of Section 2(a) of the Lanham Act. In that time, Matal v. Tam has been cited in hundreds of law review articles, briefed in subsequent First Amendment cases, and assigned in IP and constitutional law courses across the country. Scholars have analyzed the decision's doctrinal implications, its impact on subsequent cases like Iancu v. Brunetti, and its effect on the registration of marks by marginalized communities. What they have not done—because they could not—is tell the story of how the case was actually made.

That story is more complicated, and more instructive, than the legal literature suggests. Matal v. Tam is taught as a First Amendment case. It was not designed as one. It became one through a sequence of institutional interventions—each of which narrowed the legal question, foreclosed certain arguments, and ultimately transformed a trademark dispute about cultural identity into a constitutional referendum on government speech regulation. Understanding that transformation is not merely historically interesting. It changes how practitioners should approach impact litigation involving marginalized communities, how law professors should teach the case, and how future litigants should think about what they are actually fighting for when they bring a case that institutions decide to use for their own purposes.

The errors in the legal record are the place to start, because they are evidence that something is missing.

The post Journal of Free Speech Law: "How <i>Matal v. Tam</i> Became a First Amendment Case: The Record and the Reality" by Simon Tam appeared first on Reason Magazine.

Here's what happens when I search for "mason soiza spammer with a gold lamborghini"; that headline is the title of a Times (London) article:

The article thus doesn't show up in the search results, though other items that point to it do show up. I get similar results when I search, without a site:thetimes.com limitation, for "web entrepreneur faces inquiry over online sale of painkillers" (another article about Soiza). And I get similar results when I search for site:thetimes.com "mason soiza":

The DMCA complaint specifically targeted, among other items, these Times pieces:

https://www.thetimes.com/uk/healthcare/article/web-tycoon-mason-soiza-24-faces-inquiry-over-online-sale-of-painkillers-3jhjzd5kz

https://www.thetimes.com/business/companies-markets/article/mason-soiza-spammer-with-a-gold-lamborghini-58gxblv9c

The claim in the DMCA complaint was that the Times articles infringed the copyright in an OnlyFans page, https://onlyfans.com/angiestonex. That claim appears not to be accurate, yet Google did indeed deindex articles in a major newspaper based on the claim. (The newspaper would presumably be able to file a DMCA counternotification and get the matter reconsidered, but they may have been unaware of the situation.)

Interestingly, the DMCA complaint also targeted one of my posts, ttps://reason.com/volokh/2018/11/10/forged-uk-court-order-aimed-at-vanishing/ ("Forged U.K. Court Order Aimed at Vanishing Newspaper Article About English Businessman Mason Soiza"), but that post has not been removed from Google search results.

The post Google Blocked <i>Times (London)</i> Articles About Businessman Mason Soiza, Apparently Based on Unjustified DMCA Demands appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

From today's Eleventh Circuit opinion in Netchoice v. Attorney General, by Judge Kevin Newsom, joined by Judges Robert Luck and Gerald Bard Tjoflat:

The State of Georgia recently enacted SB 351 to restrict minors' ability to create accounts on social-media platforms. The law requires platforms within its ambit to verify the ages of all their users, to prohibit minors under the age of 16 from creating accounts without their parents' consent, and to limit the personal data they use to display ads to users under 16.

The court held that Netchoice hadn't introduced enough evidence to show the law was facially unconstitutional:

Even in First Amendment cases, where the facial-challenge bar is lower than it otherwise might be, the plaintiff [in a facial challenge] must show that "a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Netchoice v. Moody …

To discharge its facial-challenge burden, NetChoice must provide the reviewing court with the data—either hard facts or, at the very least, sufficient briefing—necessary to conduct the Moody-required comparative analysis. It hasn't done so here. Indeed, NetChoice hasn't provided even a full list of its own members to which SB 351 applies. Instead, it has provided only an exemplary few: SB 351, NetChoice says, "regulates some websites operated by NetChoice members, including: (1) Dreamwidth; (2) Meta (Facebook and Instagram); (3) Nextdoor; (4) Pinterest; (5) Reddit; (6) Snap Inc. (Snapchat); (7) X; and (8) YouTube," as well as "new members … such as Tumblr." And though NetChoice contends that, in addition to its own members, SB 351 regulates "other covered 'social media' websites," it doesn't name any that (in whole or in part) host unprotected speech. In that respect, we think, NetChoice makes the same mistake that it made before in Moody: treating the law as having "certain heartland applications" and "mostly confin[ing its] battle to that terrain."

We've learned the facial-challenge lesson the hard way. In Moody, the Supreme Court, even while largely agreeing with our merits analysis, faulted us for "mostly confin[ing] [our] analysis" to "certain heartland applications" instead of "address[ing] the full range of activities the law[ ] cover[ed]." The Court went on to observe that even if it were to attempt the facial analysis itself, it couldn't "undertake the needed inquiries" because the "parties ha[d] not briefed the critical issues [t]here, and the record [wa]s underdeveloped." The Court therefore vacated and remanded our case … "to consider the scope of the laws' applications, and weigh the unconstitutional as against the constitutional ones." In turn, … we … remanded [the case] to the district court[] for further development of the issues pertinent to the facial-challenge analysis.

We are similarly stymied here. For the foregoing reasons, we conclude that NetChoice has failed to satisfy Moody because it hasn't adequately addressed the "full range" of SB 351's applications, and the record before us does not permit the weighing Moody requires.

The court also rejected Netchoice's vagueness challenge:

The district court held, and NetChoice contends before us, that SB 351's requirement that social-media platforms use "commercially reasonable" age-verification mechanisms renders the statute unconstitutionally vague.

The problem, as NetChoice candidly acknowledges, is that "the district court raised this issue sua sponte." … In granting injunctive relief on a theory that NetChoice never pleaded, the district court erred. See Clark v. Sweeney (2025) (holding that courts "transgress[ ] the party-presentation principle" when "granting relief on a claim that [the plaintiff] never asserted and that [the defendant] never had the chance to address").

And the court rejected Netchoice's 47 U.S.C. § 230 objection to the advertising restrictions:

Section 230 prohibits treating a social-media platform as "the publisher or speaker of any information provided by another information content provider." … [But] SB 351's advertising provision doesn't treat social-media platforms as publishers or speakers of information provided by others. Rather, it regulates how social-media platforms themselves act by forbidding them from targeting minors with ads based on personal information. This type of regulation falls outside § 230's ambit, which preempts laws that seek to hold social-media platforms "liable for information originating with a third-party user."

John Henry Thompson, Christopher Michael Carr, Riley B. Liu, Elijah J. O'Kelley, and Logan B. Winkles of the Georgia AG's office represent the state.

The post Eleventh Circuit Rejects Netchoice's Challenge to Georgia Law Restricting Under-16-Year-Old Social Media Access appeared first on Reason Magazine.

From U.S. v. California, decided yesterday by Ninth Circuit Judge Mark Bennett, joined by Judges Jacqueline Nguyen and Daniel Collins:

Section 10 [of the California "No Vigilantes Act"] requires any non-uniformed "federal law enforcement officer" operating in California, with narrow exceptions, to "visibly display identification" while performing federal law enforcement duties. Officers who violate the law may be criminally prosecuted by the State.

We previously granted the United States's motion for an injunction pending appeal. As before, we conclude that … § 10 of the No Vigilantes Act attempts [in violation of the Supremacy Clause] to directly regulate the United States in its performance of governmental functions, and Congress has not authorized such regulation. Indeed, we conclude that the United States is certain to succeed….

"[U]nder the intergovernmental immunity component of the Supremacy Clause to the United States Constitution, states may not directly regulate the Federal Government's operations or property." "It is of the very essence of supremacy," the Supreme Court has emphasized, "to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." To that end, "states have no power" to "in any manner control[ ] the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government." And "where 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' 'the federal function must be left free' of regulation" by the States.

Intergovernmental immunity "prohibit[s] state laws that either 'regulat[e] the United States directly or discriminat[e] against the Federal Government or those with whom it deals' (e.g., contractors)." A direct regulation is one that "lays hold of" federal officers "in their specific attempt to obey orders and requires qualifications in addition to those that the [federal] Government has pronounced sufficient." It imposes conditions upon "a function of government," and it regulates "the right to carry on the business" of the federal government. Put another way, a direct regulation regulates the government qua government; it controls how the government conducts specifically governmental functions.

The Supremacy Clause prohibits States from directly regulating federal operations even when regulating state operations in the same manner…. "[E]ven the most unquestionable and most universally applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a marshal of the United States acting under and in pursuance of the laws of the United States." … And critically, "Supreme Court case law compels the rejection of a de minimis exception to the doctrine of intergovernmental immunity." So "[a] state or local law that directly regulates the conduct of the federal government or discriminates against it is invalid, even if it is no more restrictive than federal law."

In sum, if a state law directly regulates the governmental conduct of the United States without congressional authorization, it is void irrespective of whether the regulated activities are essential to federal functions or operations, and irrespective of the degree to which the state law interferes with such functions or operations….

Section 10 of the No Vigilantes Act expressly applies to federal officers. It controls the conduct of those federal officers in performing law enforcement operations. Section 10 explicitly overrides the federal government's power to determine whether, how, and when to publicly identify its officers. And in so doing, it regulates the manner and conditions under which federal agents can enforce federal law. Again, § 10 defines "law enforcement officer" as including "any federal law enforcement officer." And any non-uniformed federal law enforcement officer "operating in California" "shall visibly display identification that includes their agency and either a name or badge number or both name and badge number when performing their enforcement duties."

These provisions "lay[ ] hold of" federal agencies and officers "in their specific attempt to obey orders and require[ ] qualifications in addition to those that the [federal] Government has pronounced sufficient." As a result, § 10 regulates the performance of "governmental action[s]" which are "carried on by the United States itself"—not merely "persons who [a]re acting for themselves and not for the United States." Indeed, it applies only to law enforcement agencies and their officers, including federal law enforcement agencies and federal law enforcement officers. Section 10 thus directly regulates inherently sovereign functions. Because Congress has not authorized such legislation, it is barred by intergovernmental immunity.

The United States has also shown that "no set of circumstances exists under which the Act would be valid." Again, § 10 exclusively regulates quintessentially government conduct: law enforcement. So as applied to federal agencies and federal officers carrying out their duties under federal authority, the statute is invalid in all applications. The United States is therefore likely—indeed, certain—to succeed on the merits of its facial challenge to § 10's constitutionality….

California … advances its view that a state statute constitutes an impermissible direct regulation only when the law "impose[s] substantial burdens on federal operations." … The district court applied, and California urges us to adopt, the standard applicable to States' regulation of federal contractors and third-party employers—not the standard that governs direct regulation of the United States's governmental activities.

"Private contractors do not stand on the same footing as the federal government, so states can impose many laws on federal contractors that they could not apply to the federal government itself." But "where, as here, the governmental action is carried on by the United States itself and Congress does not affirmatively declare its instrumentalities or property subject to regulation or taxation, the inherent freedom [from direct regulation] continues." So the burden of the regulation on federal operations, whether substantial or otherwise, is irrelevant because, as discussed, there is no de minimis exception to the United States's immunity from direct regulation.

To be sure, the Supremacy Clause likely does not "bar[ ] all state regulation which may touch the activities of the Federal Government." For example, in Johnson v. Maryland (1920), the Supreme Court suggested that "when the United States has not spoken," States might be able to impose on federal officers "general rules that might affect incidentally the mode of carrying out the[ir] employment—as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets."

But the Court has never relied on that distinction to uphold a State's direct regulation of federal functions performed by federal officers. And unlike traffic laws which, for example, might require a full stop before a right turn, and which regulate conduct that any ordinary citizen could engage in, § 10 applies exclusively to law enforcement officials and exclusively to their performance of law enforcement operations. Thus, § 10 does not just "incidentally" sweep up the conduct of federal officers carrying out their duties. So even if we were to read Johnson as carving out an exception to intergovernmental immunity for laws of general applicability that affect federal operations in incidental ways—an issue that we need not and do not resolve today—such a putative exception would not apply here because § 10 is neither generally applicable nor its effect on federal officers "incidental."

Taking a different tack, California argues that the Supremacy Clause "provides a case-specific defense that confers immunity on federal officers who can show that they held an 'honest and reasonable belief' that the charged conduct was 'necessary in the performance of [their] duty.'" From there, the State contends that the United States's facial challenge must fail because there is no "reason to believe that in all (or nearly all) cases where [§ 10] might apply, the federal officer would be covered by the case-specific defense."

We agree that federal officers are immune from state criminal prosecution under state laws regulating conduct of members of the general public "only when [their] acts are both (1) authorized by the laws of the United States and (2) necessary and proper to the execution of [their] responsibilities." And under this standard, an officer need not "show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be."

The immunity at issue here, however, belongs to the United States, which enjoys a distinct form of immunity under the Supremacy Clause: intergovernmental immunity. Thus, whether any officer would hold an honest and reasonable belief that the charged conduct was necessary to perform his or her duty is irrelevant to whether the United States, or an agent exercising quintessentially governmental authority of the United States, is entitled to complete and total immunity from regulation of the type embodied in § 10. To reiterate, § 10, by its explicit terms, expressly regulates the conduct of federal officers while those officers are discharging law enforcement duties under federal authority. So an individual officer would be entitled to a Supremacy Clause defense against any prosecution brought under the statute….

Andrew M. Bernie, Mark R. Freeman, Daniel Tenny, and Eric D. McArthur represent the federal government.

The post California Law Generally Requiring Federal Law Enforcement Officers to Display ID Violates Supremacy Clause appeared first on Reason Magazine.

From Doe v. Sacred Heart Univ., Inc., decided last week by Bridgeport (Conn.) Superior Court Judge Robert Golger:

The plaintiff, Jane Doe, instituted the present action seeking a Bill of Discovery from defendant Sacred Heart University (Sacred Heart), The national Chapter of Phi Sigma Sigma Fraternity, Inc., and The IOTA NU Chapter of the Phi Sigma Sigma Fraternity. The plaintiff's complaint alleges that in the Fall of 2025 she was involved in an incident with an underclassman during pledge week in which she was video recorded encouraging a Phi Sigma Sigma Fraternity pledge to drink alcohol (the hazing incident). The incident is detailed at paragraphs 11-15 of her complaint. The video was subsequently circulated around campus.

The plaintiff alleges that she became the subject of harassment and cyberbullying as a result of the publication of the hazing incident and that the defendants failed to conduct any meaningful investigation into her complaints. The plaintiff also alleges that she became the subject of improper disciplinary hearings and was left with no choice but to withdraw from Sacred Heart. The plaintiff seeks records related to the defendants' investigation into the hazing incident and the retaliation (which consisted of anonymous cyber bullying) which led to her "constructive expulsion" from the school.

The plaintiff further alleges that as a result of this retaliation, she began to suffer from severe anxiety and depression. The plaintiff seeks to proceed with her action for a Bill of Discovery by using a Pseudonym.

The plaintiff's request to proceed using a Pseudonym was initially granted on an ex parte basis. The defendants have objected to the plaintiff's continued use of a Pseudonym. The plaintiff has responded that the continued use of the Pseudonym is necessary. The plaintiff has submitted affidavits in support of her claims detailing the harassment and threats she has received and the effects they have had on her physical and emotional health.

The standard for the granting of Pseudonym status can be found in Practice Book § 11–20A(h)(1) which provides in pertinent part: "Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in knowing the name of the party or parties."

"The principle of openness of judicial proceedings includes the question of whether one may proceed anonymously therein, because the question of who is using the judicial system is ordinarily as much a part of that principle as why it is being used." For this reason, our Supreme Court has stated that "[t]he privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest."

"The presumption of openness of court proceedings … is a fundamental principle of our judicial system." This policy of openness is not to be abridged lightly.

"The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." "A [party's] desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity." "The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's] identity…. There must be a strong social interest in concealing the identity of the [party]….["]

The court has reviewed the affidavits submitted by the plaintiff associated with her treatment and is aware of the scope of her alleged harm and fears. However, what the court must determine here is the appropriateness of shielding the identity of someone who has victimized another. A review of the relevant caselaw concerning applications for the use of Pseudonym status does not reveal any cases where an initial wrongdoer was allowed to proceed with a Pseudonym because of alleged harm incurred in retaliation for their wrongdoing.

The court has determined that after balancing the interests of the parties in this matter, the plaintiff's personal privacy interests do not outweigh the public's interest in the continued openness of these judicial proceedings. The defendants' objection to the continued use of a Pseudonym is therefore sustained.

James M. Sconzo and Marc G. Bernatchez (Carlton Fields, P.C.) represent the University.

The post No Pseudonymity for Apparent Hazer Suing University for Supposedly Improper Actions Against Her appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

A short excerpt from today's longish Tenth Circuit opinion in VoteAmerica v. Schwab, by Judge Timothy Tymkovich, joined by Judges Michael Murphy and Joel Carson:

To reduce voter confusion and increase confidence in elections, the Kansas legislature prohibited private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters. VoteAmerica and Voter Participation Center sued, alleging that the restriction infringed on their freedom of speech guaranteed by the First Amendment….

Relying on the political reaction against mail-in voting and Kansas's failure to prove an adequate fit between its stated interests and the Prohibition, the [district] court concluded that Kansas enacted the Prohibition to suppress speech supporting mail-in voting. Applying strict scrutiny (and intermediate scrutiny in the alternative), the court concluded that the law failed because it was not sufficiently tailored….

[W]e REVERSE the district court's judgment. The district court found an improper purpose without evidence from the Prohibition's justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error. Because the Prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional….

The court held the law was viewpoint-neutral (and content-neutral):

VPC [plaintiff Voter Participation Center] bears the burden to show that the Prohibition was enacted with viewpoint-discriminatory purpose…. A law is adopted with improper purpose if it was adopted "because of disagreement with the message the speech conveys." …

We do not, however, assume that a law is adopted with improper purpose simply "because it may disproportionately affect speech on certain topics," or because "it has an incidental effect on some speakers or messages but not others." McCullen v. Coakley (2014)….

Kansas contends that the district court wrongly inferred improper purpose when the Prohibition's text, enactment history, and the State's justifications for the law evince no such purpose. We agree.

First, Kansas's stated interests in the Prohibition are not intrinsically tied to restricting a viewpoint. Kansas stated that the Prohibition is meant to (1) minimize voter confusion; (2) facilitate efficiency in election administration; and (3) foster confidence in and protect the integrity of the electoral process. These are each legitimate interests—and they are independent of any alleged purpose in restricting VPC's pro-mail-in-voting viewpoint….

VPC counters that we must look beyond Kansas's stated interests to the Prohibition's operation. For, if "[e]very objective indication shows that the provision's primary purpose is to restrict speech that [advances a certain viewpoint]," we should not conclude that the provision was enacted with a proper purpose "simply because the statute itself and those defending it in court say that it is[.]" See McCullen (Scalia, J., concurring). VPC highlights the Prohibition's disproportionate effect on the pro-mail-in-voting viewpoint. It urges that the Prohibition functions to target only mail-in voting advocates because those against mail-in voting would not prefill applications.

That may be true, but caselaw forecloses VPC's argument. Without more, incidental disproportionate effect on one subject or viewpoint does not prove improper purpose. See McCullen (majority opinion) ("[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.")….

VPC fails to show that Kansas enacted the Prohibition to suppress its pro-mail-voting viewpoint. The district court's reliance on cultural antagonism against mail-in voting to infer the Kansas legislature enacted the prohibition with an improper purpose—when the law's justifications, text, and enactment history reveal no such purpose—was in error….

And the court held that the law passed the intermediate scrutiny applicable to content-neutral speech restrictions:

Speech restrictions survive intermediate scrutiny if they "(a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication." …

Kansas's stated interests are significant… Kansas identified the harm of voter confusion that the prefilled applications caused. The State says some voters called in angry and perplexed by inaccurate prefilled applications. And it points to others who unnecessarily submitted multiple applications after receiving the prefilled forms. Kansas identified the administrative burdens caused by the erroneously prefilled applications, duplicate submissions (caused, at least in part, by the prefilling confusion), and time spent assuaging voters' concerns and confusion. And Kansas identified lost confidence in the electoral process. County election officials were flooded with calls and letters from voters frustrated by the purported incompetence of their county because of errors in the prefilled applications….

The Prohibition is also adequately tailored to address Kansas's legislative interests and does not restrict substantially more speech than necessary. And because the Prohibition minimally burdens speech, it was not necessary to point to alternative regulatory schemes.

First, minimizing voter confusion. Kansas cites evidence of voter confusion caused by the prefilled applications. Kansas showed that the prefilled applications caused confusion among voters because of the applications' errors and many voters' beliefs that they needed to sign and mail prefilled applications even if they had already submitted one.

The Prohibition is tailored to alleviate this harm. Because of the Prohibition, voters will receive blank ballot applications with no error, removing any confusion resulting when voters received erroneous applications but had previously reported their information change to the county election office. And we can reasonably infer that some voters who felt compelled to submit the prefilled applications will not feel compelled to do the same when they are blank….

[T]he evidence here directly relates to the Prohibition—county officials testified to voter confusion resulting from (1) error in prefilled applications, and (2) receipt of prefilled applications, when voters had already submitted applications….

The Prohibition also does not burden substantially more speech than necessary to minimize voter confusion resulting from prefilled ballot applications. Kansas's solution—outright prohibiting the prefilling of applications—was reasonable and "the threat to free speech posed by the Prohibition is sufficiently small." There are few (if any) less-burdensome alternatives that could cure the problem because "the use of forms by the government inherently requires content restrictions." This showing is sufficient to survive narrow tailoring….

Second, administering efficient elections. Kansas presented evidence of the administrative burden caused by the erroneously prefilled applications (and duplicate submissions of prefilled applications). Kansas demonstrated that county offices regularly received erroneous prefilled applications and duplicate applications because voters believed they needed to submit the prefilled applications they received. Kansas produced evidence that these erroneous prefilled ballots and duplicate submissions produced a significant administrative burden. The three to five minutes processing time for an accurate, non-duplicate application could increase to over thirty minutes. The Prohibition alleviates this processing burden by reducing the amount of erroneously prefilled and duplicate applications county offices receive.

VPC nevertheless counters that Kansas failed to provide evidence of harm because it did not show how many duplicate or inaccurate prefilled applications county offices received. But the record demonstrates that at least 3% of VPC's Kansas voter database was inaccurate, suggesting that VPC sent more than 15,000 erroneous applications to Kansans during the 2020 general election. And county offices reported, without providing exact numbers, that the number of duplicate and erroneous prefilled applications skyrocketed. Kansas offers sufficient evidence supporting the claim that prefilled applications caused administrative harm.

To rebut Kansas's showing of narrow tailoring, VPC also relies on the district court's conclusion that the "real issue" producing the administrative burden was duplicate applications. But Kansas shows that it expended extra resources on duplicates and error-riddled prefilled applications. And Kansas points to evidence showing that voters submitted duplicates in part because they were prefilled—they thought they had to.

The district court reached the contrary conclusion that the prefilled applications did not cause administrative harm in large part because Cox and Shew testified that in some ways they preferred prefilled applications. But the district court erred in concluding that the Prohibition's potential allowance of one problem—increased human error in applications—negated the adequacy of the Prohibition's tailoring to a different problem, third-party error in the prefilled applications. Kansas has a right to act prophylactically to minimize administrative burden, and to do so in its best judgment by addressing one problem contributing to it.

Perhaps the Prohibition will be net neutral. But Kansas tailored the Prohibition to a discrete problem producing an administrative burden and directly ameliorated that problem. And because the Prohibition does not burden substantially more speech than necessary to further Kansas's interest in facilitating efficient elections, the Prohibition is narrowly tailored.

Third, fostering confidence in election integrity. Kansas offers record evidence of voter frustration and distrust caused by the prefilled ballot applications. Howell described voters venting frustration at the alleged incompetence of their county upon receiving applications that contained a wrong name and address; some who had previously communicated changes to the office were especially frustrated. The Prohibition addresses this distrust and frustration by removing the source of the voters' complaints….

Finally, the Prohibition leaves open ample alternative channels of communication. VPC "remains free to choose what avenue of communication it will use to advocate for mail voting, including the use of unsolicited mailers." It may even include a sheet with the previously prefilled information alongside a blank application….

Because the Prohibition is adequately tailored under intermediate scrutiny, its minimal restriction on the content of VPC's speech is permissible under the First Amendment.

Bradley J. Schlozman, Scott R. Schillings and Garrett R. Roe (Hinkle Law Firm LLC) represent defendants.

The post Kansas Ban on Private Parties' Partially Prefilling Voters' Mail Ballot Applications Upheld appeared first on Reason Magazine.

Some short excerpts from the long opinion in Computer & Comm. Indus. Ass'n v. Uthmeier, decided today by Judge Kevin Newsom, joined by Judges Robert Luck and Gerald Bard Tjoflat:

One of the most pressing is how and in what ways social-media use affects minors. According to the State of Florida, social-media companies seed their platforms with "addictive features"—push notifications, auto-play, infinite scrolling, etc.—in order to make them, well, addictive. These features, the state says, are "psychological hooks" that "overstimulate the reward center in the brain" and "foster compulsive overuse." Florida insists that children are particularly susceptible to these "addictive features" because their brains are still developing. In particular, the state contends, the features contribute to "[c]ompulsive or uncontrollable" social-media use among children and threaten a "youth mental health crisis." Children face "'sleep problems, attention problems, and feelings of exclusion,' all of which put [them] at risk of 'depression, anxiety, and neuroticism.'"

In an effort to protect children from social-media addiction and its ensuing effects, Florida passed HB3, which imposes age-restriction requirements on platforms that use "addictive features." In particular, HB3 requires platforms within its ambit to prohibit anyone under the age of 14 from creating an account, and to prohibit anyone else under 16 from doing so without parental consent….

[W]e hold that HB3 likely passes First Amendment muster because it is a content-neutral speech regulation that satisfies intermediate scrutiny….

The court held that HB3 was a speech restriction and thus implicated the First Amendment:

Florida contends that HB3 "regulates product design, not children's speech," and, accordingly, doesn't even implicate the First Amendment. In particular, the state says, HB3 restricts only the creation of accounts, not social-media access writ large, and thus regulates only "commercial transaction[s]"—namely, a platform's ability to "enter[ ] into a contract" with children of a certain age.

Even accepting the state's characterization, it seems clear enough to us that HB3 "disproportionate[ly] burden[s]" CCIA's member platforms' "protected First Amendment activities"—namely, "compiling and curating others' speech" for their users. In particular, HB3 burdens platforms' ability to communicate with their users by requiring them (1) to prohibit minors under 14 years of age from creating or maintaining accounts and (2) to secure parental consent before communicating with 14- and 15-year-olds.

But it concluded that HB3 was content-neutral:

HB3 is facially content neutral: It regulates social-media platforms based on their functional capabilities and features, not the content they communicate. The law neither references the substance of the speech on any platform nor draws distinctions based on it. Put differently, HB3 applies to platforms wholly without regard to the topics discussed or the ideas or messages conveyed on them. Truth Social is just as likely as Instagram to be affected by HB3 so long as (1) a proportion of minors under 16 spend an average of at least two hours a day on it; (2) it uses infinite scrolling, push notifications, auto-play, or livestreaming, or displays user-engagement metrics; and (3) it selects content algorithmically for users. And tellingly, neither a platform nor a user can "avoid or mitigate" the effects of HB3 by "altering" the substance of any posted expression.

HB3's justification is also content neutral: to "protect[ ] children from [social-media] addiction and associated mental-health harms." That purpose is "unrelated to the content of expression" on any given platform, and it doesn't "reflect[ ] disagreement with the message such speech conveys." …

CCIA contends that HB3 is content based because it applies only to so-called "social" speech: The law, CCIA asserts, targets websites "based on the 'social' subject matter 'of the material they disseminate.'" … [But t]he "social"-ness of speech is a function of its form, not its substance. Put simply, "social" speech, as CCIA seems to be using the term, is simply speech that occurs between users on social-media platforms, wholly without regard to "the topic discussed or the idea or message expressed." Users can engage in so-called "social" speech about any topic, from the sublime (religion, philosophy, etc.) to the ridiculous (celebrity gossip, cat videos, etc.)….

And it held that HB3 likely passed the "intermediate scrutiny" applicable to content-neutral speech restrictions, because the law "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests":

CCIA doesn't dispute that HB3 advances an important state interest; it acknowledges that "protecting minors is certainly a laudable goal." Even so, it says, HB3 fails intermediate scrutiny's first element because Florida's interest "is plainly related to the suppression of expression." In particular, CCIA emphasizes that HB3 prohibits addictive features only on websites, not on other "services that disseminate speech"—like, for instance, "books that end in cliffhangers." Florida singles out social-media platforms, CCIA insists, because they host speech that Florida "distrusts."

CCIA's argument doesn't necessarily follow. It would hold up only if websites have an inherent expressive value that differs from the expressive value inherent in all books. But both books and websites communicate content that spans the full range of expressive values; they just do so in different formats. Absent a restriction on the substance of the topics, ideas, or messages communicated by websites as compared to those communicated by books, HB3's "singling out" of websites is not, as CCIA argues, "plainly related to the suppression of expression." …

HB3 [is] also likely … appropriately tailored to advancing Florida's interest in protecting minors. In particular, HB3 doesn't "burden substantially more speech than necessary" because it (1) calibrates its restrictions by age, (2) regulates minors' creation of social-media accounts, not necessarily their access to the platforms themselves, (3) covers only those platforms that have been determined to induce heavy use by children, and (4) applies only to platforms that use both algorithms and one of several addictive features.

First, HB3 is age delimited. It prohibits minors under 14 from creating accounts, and it requires 14- and 15-year-olds to obtain parental consent before doing so. Notably, it imposes no limitations for those 16 years of age and older. The law thus applies only to younger minors and recognizes the fine-grained distinctions even among those to whom it applies—namely, that 13-year-olds (in general, middleschoolers) are different from 14- and 15-year-olds (those starting high school), who, in turn, are different from those 16 and up (budding adults).

Second, even among those to whom HB3 does apply, the law restricts only their ability to create their own accounts, not their ability to access social-media platforms per se. The creation of a social-media account is a commercial act—a business transaction. Even a minor—indeed, even a young child—may continue to use the platforms provided he either (1) uses his parents' (or someone else's) account or (2) gains access without an account.

Third, HB3 targets only the platforms to which many minors are already addicted. As a reminder, a platform comes within HB3's purview only if at least 10% of daily active users under 16 years old spend an average of two hours or more per day on it. Together with its other limitations, HB3's tailoring efforts fall within the broad range of potential legislative solutions that intermediate scrutiny permits.

And fourth, HB3 operates not as an outright prohibition of platform usage but rather as a "conditional ban" of sorts—namely, on platforms' use of addictive features and algorithms. The law applies only to platforms that use a combination of algorithms and addictive features and that succeed in keeping many minors on them for an average of at least two hours a day. Refraining from using either algorithms or addictive features, or remaining below the temporal threshold, exempts a platform from the law's application.

Now, none of that is necessarily to say that HB3 embodies the best policy choice. Maybe, maybe not. But intermediate scrutiny affords governments "latitude … to design regulatory solutions to address content-neutral interests." Accordingly, it is within Florida's discretion to draw the lines it has—many of which, of course, narrow the law's scope. So, for instance, Florida may validly opt to prohibit minors under 14, rather than 16, from creating social-media accounts, and to require 16-year-olds, rather than all those under 18, to obtain their parents' consent before creating accounts. So too, it may validly train its attention on platforms that a segment of children use more than two hours per day, rather than one. And finally, it is free to focus on sites that use both algorithms and "addictive features," rather than one or the other of those….

Judge Newsom also added a very interesting separate opinion, focused on as-applied challenges and intermediate scrutiny; interested readers may want to look at it, as well as at the panel's discussion of overbreadth challenges and other matters.

The post Florida "Addictive Features" Social Media Restrictions on Minors Likely Constitutional, Eleventh Circuit Holds appeared first on Reason Magazine.

From Molchonova v. FirstBank Puerto Rico & First Bancorp, decided today by Judge Jed Rakoff (S.D.N.Y.):

On September 25, 2026, this Court issued a "bottom-line" Order granting in part and denying in part the motion of defendants FirstBank Puerto Rico and First Bancorp (collectively "FirstBank") to dismiss the complaint brought by plaintiff Julia Molchonova. This Opinion sets forth the reasons for that Order….

An excerpt of Molchonova's allegations (which are just allegations at this stage):

Molchonova, who was one of Epstein's victims, alleges that FirstBank participated in, and benefited from, Epstein's vast criminal enterprise in violation of federal and local law…. As alleged, FirstBank maintained dozens of accounts for Epstein, his entities, and his agents, facilitated millions of dollars in transfers to and from these accounts, and served as a banking reference for Epstein when he sought to charter his own banking entity. These services, among others, were "integral in helping [Epstein] fuel his international sex trafficking operation." …

The court allowed Molchonova's claim under the Trafficking Victims Protection Act ("on behalf of a putative class of Epstein victims") to go forward:

As this Court recently explained, the TVPA imposes civil liability on any "person or entity that knowingly benefits, or attempts or conspires to benefit, financially or by receiving anything of value from participation in a venture which that defendant knew or should have known has engaged in an act in violation of the TVPA." Participant liability "involves three elements: first, that the defendant participated in a commercial sex trafficking venture; second, that the defendant knew or should have known that the venture either involved the perpetrator's use of force, the threat of force, fraud, or coercion to cause the victims to participate in sex or that the venture involved sex with victims who were under the age of 18; and third, that the defendant benefited from its participation in the venture." …

[F]or her participation claim to survive, Molchonova must allege more than that FirstBank provide routine banking services to the Epstein venture. The Court concludes that she has done so. Molchonova has alleged an extensive, longstanding, and continuous relationship between FirstBank and Epstein. For more than two decades, FirstBank opened and maintained more than 30 accounts for Epstein and related entities. The Complaint alleges that these accounts were used to pay victims, and circulate millions of dollars in funds between various Epstein-related entities and individuals, FirstBank processed millions of dollars in payments from Epstein's personal accounts to the FirstBank accounts of entities held by Epstein and his known associates. Several of these entities owned the properties where much of Epstein's trafficking and sexual abuse transpired, while others made payments to victims of Epstein's abuse.

While such extensive activity was more than "routine," what is crucial is that Molchonova has alleged with specificity that FirstBank maintained this extensive and longstanding relationship with Epstein despite ever more extreme "red flags" that ultimately led every other bank to drop him as a client.

Between 2007 and 2015, HSBC, Goldman Sachs, Bank of America, Merrill Lynch, JP Morgan Chase, UBS, and CitiBank all terminated their relationships with Epstein. But FirstBank simply took advantage of these closures to enhance its profitable banking relationship with Epstein. For example, in 2018, "both Fidelity Investments and Deutsche Bank closed its [sic] accounts with Epstein and sent funds from those closures to FirstBank."

At best, these allegations demonstrate an astonishing ignorance to the apparent consensus of the financial services industry not to provide banking services to someone whose grotesque misconduct was becoming ever more obvious. At worst, drawing all inferences in Molchonova's favor, the complaint alleges that FirstBank provided continuous and substantial financial services to Epstein and his associates despite knowing that these services were being used to further Epstein's sex trafficking venture. See Bank of Am. (finding that facilitating wire transfers constituted participation for purposes of the TVPA because the defendant "had every reason to know that [the plaintiff] had no ability to earn legitimate income in the United States and that Epstein, who arranged the set-up of the account and was involved with the transfers, had already been convicted of sex crimes involving underage girls").

While any one of FirstBank's services to Epstein may be claimed to be "routine" (though in many instances even that is suspicious), together, the complaint alleges that FirstBank was deeply enmeshed in Epstein's misconduct for its own financial benefit….

Having concluded that Molchonova has alleged participation, the Court turns to the second element—whether Molchonova "adequately alleges that [FirstBank] either knew or should have known that Epstein's venture used force, the threat of force, fraud, coercion, or some combination of the same to cause its victims to submit to sex, or that the victims who submitted to sex were under the age of 18." The Court concludes that she has.

As an initial matter, knowledge, for purposes of the TVPA, requires only that the defendant "'should have known' in the usual sense of negligence." … Molchonova's complaint alleges that, throughout its twenty-plus-year relationship with Epstein, FirstBank ignored considerable, publicly available information about Epstein and his close associates. As this Court previously explained with respect to a different bank, "while [FirstBank] was not required to automatically credit" these sources of information about Epstein, "the amended complaint plausibly asserts that the bank turned a blind eye to these repeated, detailed allegations, some emanating from police reports widely circulated in the press, by utterly failing to engage in due diligence about them."

Molchonova also alleges that there was significant FirstBank account activity that itself should have raised red flags. For instance, in 2018—after years of media and law enforcement reports describing Epstein as a sexual abuser and sex trafficker—FirstBank opened a bank account for one of Epstein's victims using the same address in the U.S. Virgin Islands as Epstein and his other related accounts. Likewise, Molchonova alleges with sufficient specificity that Epstein and his agents owned a network of FirstBank accounts including accounts for entities and properties that were publicly linked to Epstein's abuse and trafficking venture that received millions of dollars in transfers from other of Epstein's accounts. And, as emphasized above, the complaint plausibly alleges that FirstBank should have been aware of the laundry list of other banks that cut ties with Epstein in the decade preceding his death in 2019….

The third element of a TVPA participation claim is that a defendant must have benefited from its participation in a sex trafficking venture. This element can be satisfied by "allegations that [FirstBank] knowingly received revenue from its participation in generally assisting a venture that it knew, or should have known, involved sex trafficking."…

Molchonova's allegations easily satisfy this standard. She alleges that "Epstein only offered his business to FirstBank because it was knowingly aiding Epstein's sex trafficking operation and the concealment thereof. FirstBank knew that if it stopped aiding the operation, it would lose the Epstein-related accounts and the financial benefits attached to handling those accounts." She also alleges that "FirstBank financially benefitted in the form of profits, high-net-worth clients, and other financial incentives, for its participation in the Epstein sex-trafficking venture." These allegations plainly state that FirstBank profited from its longstanding and continuous relationship with Epstein, and plausibly proffer that Epstein would not have continued banking with FirstBank if it did not turn a blind eye to his use of FirstBank's services to facilitate his sex trafficking venture….

For similar reasons, the court also allowed Molchonova's claims under the New York City Gender-Motivated Violence Protection Act to proceed. But the court dismissed her claims "that FirstBank obstructed enforcement of the TVPA in violation of 18 U.S.C. §§ 1591(d) and 1595":

As this Court has previously concluded in a substantially similar case, "[b]ecause Congress enacted Section 1591(d) in 2008 and did not give that provision retroactive effect, the investigations that resulted in Epstein's 2006 guilty plea and his 2007 non-prosecution agreement there cannot support plaintiffs' claim for obstruction." Accordingly, the relevant inquiry for purposes of Molchonova's obstruction claim is whether she has alleged that FirstBank knew of a post-2008 effort to enforce the TVPA and intentionally obstructed, or attempted to obstruct, that enforcement effort. The Court concludes she has not….

The post Lawsuit Alleging Bank Played Role in Facilitating "Jeffrey Epstein's … Sex-Trafficking Operation" Can Go Forward appeared first on Reason Magazine.

Some excerpts from the long Third Circuit en banc opinion yesterday by Judge Stephanos Bibas in U.S. v. Bost (for another Third Circuit en banc case decided yesterday that reached the opposite result on different facts, see Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction):

The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality. Not every convict poses such a risk—but James Bost does. He pleaded guilty to terroristic threats and other crimes. Years later, police caught him with a pistol not once, but twice. So he was charged with having a gun despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which makes it illegal for felons to have guns….

But Bost's violent conviction is prima facie enough to disarm him. We hold that some predicate crimes (like Bost's conviction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone….

In 2002, Bost carjacked someone, threatening to kill the driver unless she gave him money. To get that money, he drove to her mother's home, where she escaped from the car, screaming for help. Bost was then arrested and pleaded guilty to terroristic threats and criminal conspiracy (as well as false imprisonment and simple assault). Those first two Pennsylvania crimes are first-degree misdemeanors punishable by up to five years in prison. One element of the terroristic-threats crime required "a threat to commit any crime of violence with intent to terrorize another." Bost was sentenced to four years' probation.

Later, while on bail for another arrest, Bost failed to appear in court. U.S. Marshals tracked him down. They found him in his girlfriend's home, next to a couch with a stolen .38 caliber pistol on it. Bost was indicted federally for possessing a stolen gun and possessing a gun despite his convictions (based on the terroristic-threats and conspiracy convictions). He moved to dismiss the indictment, arguing that § 922(g)(1) [the federal bans on felons possessing guns -EV] is unconstitutional as applied to him and that it is facially unconstitutional….

The court held that the case against Bost could go forward:

The Second Amendment secures the right of "the people" to "keep and bear Arms." Since felons are part of "the people," the amendment protects what § 922(g)(1) forbids—a felon's having a gun. So the government must justify this restriction by analogizing to our nation's historical tradition of gun regulation….

Two years ago, we held § 922(g)(1) unconstitutional as applied to a man with a prior conviction for food-stamp fraud.. But we flagged a limit to our holding, stressing that the government had no evidence that Range posed a risk of violence to others or that his crime "[was] closely associated with physical danger." That aligned with the Supreme Court's later holding in Rahimi that, under a law banning such people from having guns, someone who poses "a clear threat of physical violence to another" person "may be disarmed." … So § 922(g)(1) is constitutional insofar as it disarms convicts who pose a risk of physical violence from misusing guns.

Now we ask … how may the law address a risk of violence[, focusing on] … the nature of the restriction imposed, the process used to impose it, and its duration….

Historically, there were two paths to disarming people. One was individualized: A court found someone to pose a risk of physical violence from misusing guns and disarmed him. The other was categorical: A law targeted a disloyal group that risked violence to the community. In those instances, a member of the group could often get his rights back by showing that he himself did not pose a risk of violence.

Individualized judgment was the norm. For centuries, disarmament was tied to a judge's finding that someone posed a risk of physical violence from misusing guns. Sometimes, that meant punishing risky behavior. Going-armed laws punished and disarmed those who used their weapons to menace others. Rooted in the old bans on affrays, they targeted conduct that spread fear and threatened the peace: going armed "to the Terror of the People." These laws were often enacted with bans on fighting, together targeting conduct likely to lead to violence.

Other laws, like surety laws, aimed to prevent harm before it happened. If someone credibly feared that another person posed a risk of physical violence, including by misusing his arms, he could complain to a magistrate. The magistrate would hold a hearing, weigh the evidence, and decide whether the accused was likely to breach the peace. If the risk was real, the accused had to post a bond promising to keep the peace for up to six months. If he failed to post it, he would go to jail; if he breached the peace, he would forfeit the bond. Either way, the restraint was tailored to the person's risk….

To be sure, some laws disarmed categories of people, but these examples are few, fraught, and often discriminatory. Most founding-era bans disarmed political enemies—groups thought capable of collective rebellion. These measures were tied to allegiance and often lifted once the perceived threat passed. Plus, many applied to groups that lawmakers refused to treat as part of "the people" protected by the Second Amendment, like slaves and American Indians. Both features meaningfully distinguish these historical bans from today's across-the-board ban on felons. Even so, their procedures for rearmament are instructive…. [R]earmament was not automatic. Often, the disarmed person had to make some showing that he no longer posed a risk of violence…. [This paragraph, and the section that contains it, got only 7 of the 14 total votes; Judge Tamika Montgomery-Reeves, who joined the rest of the opinion, declined to join this part because it "relies on repugnant and discriminatory laws and procedures that would very likely violate the First and Fourteenth Amendments of the U.S. Constitution…. I question whether the invidious, and likely unconstitutional, laws undergirding these rearmament procedures are valid inputs for Bruen's test. I need not answer that question, however, because less constitutionally infirm comparators support the same conclusion."]

Bost's Violent Conviction Suffices, at This Early Stage, to Show His Risk of Violence …

Some predicate crimes speak for themselves. Violent offenses, like common-law murder, forcible rape, and common-law robbery, mark a person as such. And the going-armed laws disarmed people whose conduct was threatening. These types of convictions suffice to justify disarmament. We do not require that the predicate violent or threatening crime itself involved guns or the threat of guns. Unarmed forcible rapes, for instance, can qualify.

Other predicate crimes speak for themselves in the other direction: They are not even physically dangerous, let alone violent.

There may perhaps be a third, intermediate category: Still other predicate crimes may be closer calls. Though they may not involve immediate violence, they may fuel it and pose risks to the community. Whether these predicate crimes justify disarmament depends on their own historical analogies.

So at either end of the spectrum, the predicate crime tells the court enough about the felon's risk of physical violence to decide whether to dismiss a § 922(g)(1) indictment. In the middle, it is possible that courts may have to draw more lines.

But if so, we need not draw them today. Bost was convicted of terroristic threats. The elements of that predicate crime included "a threat to commit any crime of violence with intent to terrorize another." … That conduct fits squarely within the historical tradition of disarming those who threaten violence. It echoes the core concern of the going-armed laws: conduct that terrifies others and breaches or risks breaching the peace. Bost's indictment is sufficient as a matter of law. And at this early stage, a court may dismiss only if the predicate conviction is insufficient as a matter of law to put the defendant into the category of persons who pose a risk of physical violence from misusing guns. We need not address what, if anything, could later take a defendant out of that category….

Judge Patty Schwartz wrote an opinion concurring in the judgment; so did Judge Jennifer Mascott. Judge Peter Phipps filed a dissenting opinion. All are worth reading, as is the rest of Judge Bibas's opinion.

Donovan J. Cocas, Laura S. Irwin, and Vivek Suri represent the government.

The post Second Amendment Rights Forfeited by Past Terroristic Threats Conviction appeared first on Reason Magazine.

I'm interviewed about this roughly at about 3:15 to 6:30 of this episode of PBS's Civics Made Easy series. Unfortunately, they couldn't include all my discussion of the historical support for my view, so I thought I'd reprise below an earlier post of mine on the subject.

* * *

The U.S. Is Both a Republic and a Democracy

Don't just take it from me; take it from the Framers and other early American statesmen: "Democracy" has long included representative democracy as well as direct democracy, and "Republic" was used to refer to regimes that were not representative.

[1.] I often hear people argue (often quite militantly) that the United States is a republic, not a democracy. But that's a false dichotomy. A common definition of "republic" is, to quote the American Heritage Dictionary, "A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them"—we are that. A common definition of "democracy" is, "Government by the people, exercised either directly or through elected representatives"—we are that, too.

The United States is not a direct democracy, in the sense of a country in which laws (and other government decisions) are made predominantly by majority vote. Some lawmaking is done this way, on the state and local levels, but it's only a tiny fraction of all lawmaking. But we are a representative democracy, which is a form of democracy.

[2.] And the same two meanings of "democracy" (sometimes direct democracy, sometimes popular self-government more generally) existed at the founding of the republic as well. Some framing-era commentators made arguments that distinguished "democracy" and "republic"; see, for instance, the Federalist (No. 10), as well as other numbers of the Federalist papers. But even in that era, "representative democracy" was understood as a form of democracy, alongside "pure democracy": John Adams used the term "representative democracy" in 1794; so did Noah Webster in 1785; so did St. George Tucker in his 1803 edition of Blackstone; so did Thomas Jefferson in 1815. Tucker's Blackstone likewise uses "democracy" to describe a representative democracy, even when the qualifier "representative" is omitted.

Likewise, James Wilson, one of the main drafters of the Constitution and one of the first Supreme Court justices, defended the Constitution in 1787 by speaking of the three forms of government being the "monarchical, aristocratical, and democratical," and said that in a democracy the sovereign power is "inherent in the people, and is either exercised by themselves or by their representatives." He added,

Of what description is the Constitution before us? In its principles, it is purely democratical ….

Chief Justice John Marshall—who helped lead the fight in the 1788 Virginia Convention for ratifying the U.S. Constitution—likewise defended the Constitution in that convention by describing it as implementing "democracy" (as opposed to "despotism"), and without the need to even add the qualifier "representative":

I conceive that the object of the discussion now before us is whether democracy or despotism be most eligible. I am sure that those who framed the system submitted to our investigation, and those who now support it, intend the establishment and security of the former.

The supporters of the Constitution claim the title of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy because we are convinced that it has a greater tendency to secure our liberty and promote our happiness.

We admire it because we think it a well-regulated democracy: it is recommended to the good people of this country: they are, through us, to declare whether it be such a plan of government as will establish and secure their freedom.

Sir William Blackstone, who was much read and admired by the framers, likewise used "democracy" to include republics: "Baron Montesquieu lays it down, that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question, how far private luxury is a public evil …." Holland was of course a republic, and England was compounded of monarchy and government by elected representatives; Blackstone was thus labeling such government by elected representatives as a form of "democrac[y]."

The same is so today. America is a democracy, in that it's not a monarchy or a dictatorship. (Some people claim it is too oligarchic, in which case they'd say America isn't democratic enough—but again they'd be distinguishing democracy from oligarchy.) America is not a direct democracy, but a representative democracy is a form of democracy.

[3.] And the Framers didn't just refer to representative government as democratic—they referred to direct democracy as a republic.

One way to get at this is to ask: What is the first nation that you think of that the Framers would likely have called a "Republic"? What is the most famous historical Republic, indeed the one that gave us the word "Republic"?

Why, the Roman Republic, of course, which The Federalist and many others discussed as a republic. And yet in the Roman Republic, there was no representative legislature.

The Senate (which wasn't elected or representative) did have considerable interpretive and advisory authority, and the elected praetors could interpret the law in important ways. But the laws themselves were made by direct vote of the citizens (or just by the plebeians), in the comitia centuriata, the comitia tributa or the concilium plebis. (If someone suggests that the Senate was Rome's elected representative legislature, you can point out that it was not elected, not representative, and not a legislature.)

Roman lawmaking was thus direct lawmaking, though with a voting system that heavily favored the rich, not representative lawmaking. The laws had to be proposed by a magistrate, such as a consul or a tribune of the plebs, so it wasn't precisely like an American initiative. But the laws didn't have to first be passed by some elected legislative body first (again, remember that there were no elective legislative bodies); in principle, they just had to be proposed by one elected magistrate—such as one of the 10 tribunes of the plebs—and enacted by popular vote in the assembly. You can think of it as something between the modern American referendum and the modern American initiative. But it was direct popular lawmaking, not representative lawmaking.

And the Framers routinely called Rome a republic—indeed, they labeled Athens a republic, even though Golden Age Athens famously involved direct democracy. Hamilton in Federalist No. 6 states that "Sparta, Athens, Rome, and Carthage were all republics." Hamilton in Federalist No. 34 specifically talked about the Roman legislative assemblies, yet called Rome a republic. Federalist No. 63, generally attributed to Madison, labeled Rome as an example of a "long-lived republic." (Profs. Akhil Amar and Rob Natelson have written more extensively on this.)

[4.] Today, "republican" does tend to refer more to representative systems, but "democratic" often refers to following the will of the people, whether through direct democracy or representative democracy—the precise meaning differs depending on the context. If you're asking whether to do something by direct ballot or by representative processes, you might ask whether we should be more democratic or more republican. If you're asking whether China would be better off giving more power to Chinese voters, you might ask whether it should be more democratic or less democratic, quite apart from whether you think the democracy should be direct or representative.

To be sure, in addition to being a representative democracy, the United States is also a constitutional democracy, in which courts restrain in some measure the democratic will. And the United States is therefore also a constitutional republic. Indeed, the United States might be labeled a constitutional federal representative democracy.

But where one word is used, with all the oversimplification that this necessary entails, "democracy" and "republic" both work. Indeed, since direct democracy—again, a government in which all or most laws are made by direct popular vote—would be impractical given the number and complexity of laws that pretty much any state or national government is expected to enact, it's unsurprising that the qualifier "representative" would often be omitted. Practically speaking, representative democracy is the only democracy that's around at any state or national level. (State and even national referenda are sometimes used, but only for a very small part of the state's or nation's lawmaking.)

There are lots of arguments that could be had about how our system of government should be structured: whether it should be more or less or differently democratic; whether it should include more or fewer aspects of direct democracy; whether it should have more requirements for supermajoritarian action (such as constitutional constraints, or the filibuster, or what have you); which levels of government (federal, state, or local) should have more or less power; and much more. But claiming that we're a republic and not a democracy (or a democracy and not a republic) strikes me as inconsistent both with modern usage and with how the leading lights of the Framing Era and early Republic generally treated the terms.

The post America: Democracy or Republic? appeared first on Reason Magazine.

From yesterday's Third Circuit en banc opinion in Williams v. Attorney General, written by Judge Paul Matey (and citing, among others, our own Will Baude) ((for another Third Circuit en banc case decided yesterday that reached the opposite result on different facts, see Second Amendment Rights Forfeited by Past Terroristic Threats Conviction):

The Second Amendment is a primary protection against tyranny, a strong bulwark securing American liberty, and an indispensable means of defending the public good. So courts testing restrictions on these "most sacred" and "necessary" rights must consider the history and tradition of firearm regulations with care and rigor. Edward Williams had two convictions for driving under the influence of alcohol in the early 2000s, the second of which (unbeknownst to him) triggered 18 U.S.C. § 922(g)(1), which purports to make it "unlawful" for persons convicted of "a crime punishable by imprisonment for a term exceeding one year" to possess firearms. Seeking to restore his rights, Williams filed for a declaratory judgment to confirm that § 922(g)(1), as applied to him, runs afoul of the Second Amendment.

The court ruled in Williams' favor; here are some excerpts from the long opinion:

We start [the Second Amendment inquiry] by asking the regulator whether its proposed liberty definition (or restriction, though every definition has some contracting element) is consistent with tradition. In assessing the response, we look for a custom of similar definitions.

A definition fitting within common and longstanding firearm regulation helps the regulator because long acceptance evidences noninfringement of the right. In contrast, it is likely impossible to show equivalence when the challenged restriction applies to people, places, and things that have gone unregulated for most of America's existence. Time is essential, and a recent innovation must be weighed against our "Anglo-American common-law tradition." An enduring custom since the founding is all but dispositive—one would be hard-pressed to argue that a state can prohibit the purchase of a flintlock musket. The same framework applies with respect to permissible regulations of people: if a regulation was common throughout our history, that is strong evidence that it does not infringe the right.

That is not the case here given the novelty of forever restricting all felons from possessing firearms for lawful purposes. The Federal Firearms Act of 1938 first made it "unlawful" for "any person who has been convicted of a crime of violence or is a fugutive [sic] from justice" to possess a firearm. {A "crime of violence" was defined in the Act to mean "murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year."}

In 1961, Congress expanded this prohibition, abandoning a focus on violence in favor of a technical bar on any person convicted of a "crime punishable by imprisonment for a term exceeding one year." By this point, "a crime punishable by imprisonment for more than one year" was the common approximation for "felony." The late entrance of a regulation tying felonies to gun possession disproves any longstanding customary contraction of the liberty codified in the Second Amendment.

 Of course, common exclusions from society—which do not explicitly touch on arms-bearing—might sometimes, but not always, reveal that a regulation of an individual is consistent with the reasoning offered by the regulator. Take classic felonies like murder and rape, long punishable by death. Those statutes evidence a regulatory custom of indirect disarmament since a "sentence of death" left the person "already dead in law" and "out of its protection." So too when those same offenses resulted in life imprisonment, life servitude, or civil death. Punishments for crimes belonging to this unbroken custom were justly predicated on the protection of the community from prospective physical danger….

But the Justice Department's apparent attempt to broaden discrete crimes justly punished by death to include all felonies, much less all crimes punishable by more than one-year imprisonment, misses the point…. [T]he modern regulatory label of felony—a crime punishable by more than one year of imprisonment—is not even close to the proper "level of generality at which to define [the] historical practice." It captures conduct that would have commonly justified exclusion, and a host of less significant acts. So simply pointing to Williams's felony because it is labeled "felony" does not do.

We must move to a more granular comparison, assessing Williams's conduct against the Justice Department's proffered analogy…. Williams's predicate offense requires that the offender 1) "drive, operate or be in actual physical control of the movement of a vehicle" 2) "after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher" and 3) "ha[ve] one prior [DUI] offense." This offense plainly does not contain threatening or violent elements. So we must turn to the Government's proffered analogues to determine if they allow us to infer that the restriction imposed by Williams's continued disarmament is consistent with the right codified by the Second Amendment.

The Department of Justice analogizes this conduct to laws "disarming loyalists, underage individuals, [ ] vagrants," "common drunkards," and "habitual drunkards." But only those laws restricting drunkards bear any resemblance to Williams's conduct, so we focus our analysis there. The first two elements of Williams's offense are a variation of public intoxication laws, customarily defined as the vice of drunkenness made public. The third element sweeps in proscriptions against being a "common" or "habitual" drunkard, i.e., the analogy on which the Justice Department rests its case. Some of those laws allowed for the involuntary commitment of habitual drunkards to prisons or inebriate asylums. Others allowed courts to place habitual drunkards under guardianship.

The Justice Department acknowledges it may proscribe Williams's possession of firearms only if he "presently poses a physical danger if armed," but offers no evidence to establish this as the aim of the habitual drunkard laws. Indeed, it provides no analysis on the "why" of these laws. And that silence has since been supplemented by the Supreme Court's conclusion that these same laws did not seek "to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation."

Nor does the Justice Department explain "how" the habitual drunkard laws ameliorated the threat of firearm misuse in a way relevant to the operation of § 922(g)(1). As Bruen clarifies, "if earlier generations addressed the societal problem, but did so through materially different means, that … could be evidence that a modern regulation is unconstitutional." That is the case here, and why the analogy to the permanent bar in § 922(g)(1) breaks down.

Most statutes capped the commitment of habitual drunkards to the state inebriate asylum, prison, or hard labor to a few months or years. Others provided for an indefinite period of incarceration, but had no indication that upon release individuals continued to forfeit their arms. Rather, once someone was "safe" to "go at large," they were restored to the status of a full rights-bearing citizen.

Finally, the Justice Department fails to show that Williams threatens to "misuse[ ] a gun while intoxicated," or that he "poses a danger to himself or others as a result" of alcohol abuse. In fact, much like those nineteenth-century drunkards released from custody and restored their rights, the record shows that Williams poses no present physical danger from the use of a firearm, or anything else.

He has done nothing violent, let alone dangerous, for over twenty years, and has held steady employment at the same job for over three decades. He "no longer consume[s] alcohol, save for the occasional glass of wine with dinner or champagne at home on New Year's Eve with [his] family," testimony the Justice Department has not challenged. He has submitted to an expert examination, finding he "has a normal personality, without psychopathology and without addiction or violent tendencies." And there is nothing to suggest Williams has ever wielded firearms in a manner dangerous to peaceable persons, despite a lifetime of gun ownership. Williams is presently a peaceable citizen, capable of bearing arms consistent with the design of the Second Amendment….

Our Republic, like those before it, has long understood "how base it is to pour down more liquor than one can carry," and that "drunkenness is nothing but a condition of insanity purposely assumed." Driving under that condition no doubt exacerbates the fault of the wrongdoer. Williams's criminal conviction and sentence is consistent with our tradition because acts incongruous with the virtue necessary for enjoying the rights of our political community have always justified punishment and the corresponding loss of civic privileges.

But virtuous life is a perpetual project, with redemption and reentry into the community a constant promise. And with that rehabilitation comes restoration of the civic privileges guaranteed to citizens by the Constitution, and the freedom to again exercise the natural right of armed defense against threats and tyranny. For the reasons above, we will affirm the District Court's judgment granting Williams summary judgment.

There are other interesting matters in Chief Judge Michael Chagares's partial concurrence and partial dissent, in Judge Arianna Freeman's partial concurrence and partial dissent, in Judge Patty Schwartz's dissent, and in parts of the majority opinion I ddin't quote above. (The opinions also discuss the important and interesting question of whether and when the newly revivified statutory mechanism for getting relief from firearms disabilities, 18 U.S.C. § 925(c), should preclude plaintiffs from bringing direct challenges to the disability.) Here's an excerpt from the Freeman opinion:

I part ways from the majority opinion when it says a prior conviction is disarming on its face only if it involved violence or threats. To be sure, convictions that require violence or threats are disarming; … that is consistent with our Nation's historical tradition of firearm regulation. But so are other convictions that show a person poses a credible threat to the physical safety of others.

In United States v. Rahimi, the Supreme Court upheld a different federal firearm disability because it "presume[d] … that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others." And a prior conviction can encompass such a finding even if the conviction did not require violence or threats per se.

Such is the case here. Williams was convicted of "driv[ing], operat[ing] or be[ing] in actual physical control of the movement of a vehicle" after having consumed enough alcohol to put him at "[h]ighest rate of alcohol" proscribed by Pennsylvania DUI law. And he was convicted of doing so after he previously sustained a DUI conviction.

Williams's DUI conviction establishes that he controlled a vehicle while highly intoxicated, notwithstanding the obvious risks that his conduct could severely injure or kill others. In other words, he engaged in the dangerous use of "what can be a deadly weapon: a vehicle."

Because Williams's conviction shows that he "pose[d] a credible threat to the physical safety of others," the Second Amendment does not bar Williams's disarmament, at least for some period of time.

Williams's conviction also satisfies the narrower standard our Court announces today. The majority opinion asks whether the conduct at issue presents a risk of physical danger from the misuse of firearms. But we have acknowledged that a prior conviction can evince a risk of firearm misuse even if the conviction did not involve firearms. And Williams's dangerous misuse of one potentially deadly weapon (a motor vehicle) evinces a risk that he would dangerously misuse another potentially deadly weapon: a firearm….

Joshua Prince (Prince Law Offices, P.C.) and Dillon Harris (Civil Rights Defense Firm) represent Williams.

The post Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction appeared first on Reason Magazine.