FBI seeking to prevent disclosure of information about Orlando shooting

The Pulse Nightclub in Orlando. (Gerardo Mora/Getty Images)

In the wake of the horrific attack on the Pulse nightclub, the Justice Department initially released a redacted transcript of one of the shooter’s 911 calls. Although that decision was quickly reversed, the Justice Department is still seeking to prevent the disclosure of information related to the shooter’s contacts with local law enforcement during the attack and standoff with the police, including information that is supposed to be publicly available under Florida law.

The Orlando Sentinelreports:

The FBI has asked law enforcement agencies who responded to Pulse nightclub to withhold records from the public, according to officials.

A June 20 letter from the FBI, attached to the City or Orlando’s lawsuit over withholding 911 calls and other records from 25 media outlets including the Orlando Sentinel, was also sent to the Seminole County Sheriff’s Office with instructions pertaining to how they should respond to records requests.

The letter requests that agencies deny inquiries and directs departments to “immediately notify the FBI of any requests your agency received” so “the FBI can seek to prevent disclosure through appropriate channels, as necessary.

The Seminole County Sheriff’s Office sent the Sentinel the letter Tuesday night in response to a request for documents, video and audio recordings from the early morning hours of June 12.

The Orlando Sentinel is suing for the release of additional 911 call transcripts and other information related to the attack. Local officials are apparently withholding this information due to the FBI request, but it is not apparent what legal authority the FBI has to prevent the disclosure of such information under applicable state law.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/30/fbi-seeking-to-prevent-disclosure-of-information-about-orlando-shooting/

Challenge to Maryland law banning speech that intentionally seriously distresses minors

My student Elizabeth Arias and I — with the invaluable help of local counsel Michael F. Smith (who has also helped us with Michigan cases) — have just filed a friend-of-the-court brief in one of the latest cases in the Aaron Walker/Brett Kimberlin saga. This brief supports Aaron Walker’s challenge to Maryland Criminal Law § 3-805(b)(2)(i), which bans “malicious” speech “that inflicts serious emotional distress on a minor … with the intent … [to] harass, or cause serious emotional distress to the minor”; the statute notably omits any exception for factual communications, for political speech or speech with a legal purpose (exceptions that do apply to the accompanying sections that ban criminal harassment more broadly):

(b)(1) A person may not maliciously engage in a course of conduct, through the use of electronic communication, that alarms or seriously annoys another:

(i) with the intent to harass, alarm, or annoy the other;

(ii) after receiving a reasonable warning or request to stop by or on behalf of the other; and

(iii) without a legal purpose.

(2) A person may not use an interactive computer service to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury with the intent:

(i) to kill, injure, harass, or cause serious emotional distress to the minor; or

(ii) to place the minor in reasonable fear of death or serious bodily injury….

(d) Subsection (b)(1) of this section does not apply to a peaceable activity intended to express a political view or provide information to others.

(e) A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $500 or both. [Emphasis added.]

Here is our brief, filed on behalf of the Marion B. Brechner First Amendment Project, which is run by Prof. Clay Calvert (you can also read the PDF):

I. Section 3-805(b)(2) is a content-based speech restriction.

All or nearly all of what Maryland Criminal Law § 3-805(b)(2) restricts is speech: blog posts, social media posts, e-mail messages about classmates, Snapchats, and the like. And the statute’s reference to a “course of conduct” cannot keep it from being a speech restriction, as the Supreme Court’s decision in Holder v. Humanitarian Law Project, 561 U.S. 1 (2009), makes clear.

In Holder, the Court considered a statute aimed at the conduct of providing “material support to terrorist organizations.” Id. at 7. Unlike the Maryland law, the “material support” statute applied mainly to conduct, such as the provision of funds, military services, and the like. Id. at 26. And the government argued that the law “should … receive [only] inter­me­di­ate scrutiny because it generally functions as a regulation of conduct.” Id. at 27.

But the Court held that, even though the law “may be described as directed at conduct,” when “the conduct triggering coverage under the statute consists of communicating a message,” the law should be viewed as a speech restriction. Id. at 28. The Maryland statute is even more clearly a speech restriction: virtually everything that “trigger[s] coverage under the statute consists of communicating a message.”

The Holder Court also held that the “material support” statute was content-based: “[The statute] regulates speech on the basis of its content. Plaintiffs want to speak … and whether they may do so … depends on what they say.” Id. at 27. And when a “generally applicable law” is applied to speakers “because of what [their] speech communicate[s]” — for instance, “because of the offensive content of [a speaker’s] particular message” — the law must be subjected to the strict scrutiny applicable to content-based restrictions. Id. at 28.

The Maryland statute is similarly content-based. Whether people in Maryland can speak lawfully depends on what they say: A scathing review of a teen idol’s newest single might seriously distress the singer, and thus trigger the statute, but a positive review will not; a harsh condemnation of a cheating ex-boyfriend might be seriously distress the ex, but praise of the ex will not. The law is applied to speakers “because of what [their] speech communicate[s],” including because of its “offensive content.” It must therefore be treated as a content-based speech restriction.

Indeed, the North Carolina Supreme Court has recently held that a similar North Carolina statute, which banned posting “[any] private, personal, or sexual information pertaining to a minor” “[w]ith the intent to intimidate or torment a minor” was likewise a speech restriction, and not just a restriction on conduct. State v. Bishop, __ N.C. __; 2016 WL 3221098 (N.C. June 10, 2016). “Posting information on the Internet — whatever the subject matter — can constitute speech as surely as stapling flyers to bulletin boards or distributing pamphlets to passersby — activities long protected by the First Amendment.” Id. at *8.

As North Carolina’s Supreme Court noted, “[s]uch communication does not lose protection merely because it involves the ‘act’ of posting information online, for much speech requires an ‘act’ of some variety — whether putting ink to paper or paint to canvas, or hoisting a picket sign, or donning a message-bearing jacket.” Id. And because the North Carolina statute “makes it impossible to determine whether the accused has committed a crime without examining the content of his communication,” the court held, it constitutes a content-based speech restriction, despite the state’s aim of protecting minors. Id. at *13. Likewise, because it is impossible to determine whether a speaker has violated § 3-805(b)(2) without considering whether the content of the speech was seriously distressing, Maryland Criminal Code § 3-805(b)(2) is a content-based speech restriction.

II. Section 3-805(b)(2) prohibits or deters a broad range of speech about people’s daily lives.

Consider a high-school girl who wants to write a Facebook post revealing the details of her breakup with a cheating ex-boyfriend. She may well be subject to criminal prosecution under the statute, even if what she says is true. It is certainly possible that the ex will suffer “serious emotional distress” from being condemned as a cheater to his friends.

Indeed, a recent New Jersey decision went so far as to conclude that a classmate’s accurately saying that a fourth-grader had head lice could constitute “harassment, intimidation, or bullying.” W.C.L. v. Bd. of Educ. of Borough of Tenafly, #15-13 (N.J. Comm’r of Ed. Jan. 10, 2013), http://www.nj.gov/education/legal/commissioner/2013/jan/15-13.pdf. If such speech among classmates can be labeled harassment, then speech revealing a teenager’s infidelity could likewise be seen as seriously distressing.

And the ex-girlfriend might be found to have had the intent to harass or to seriously distress, given her understandable anger at her ex-boyfriend. Moreover, because “harass” simply means “to annoy persistently,” Galloway v. State, 365 Md. 599, 627-28 (2001), then a sequence of posts talking about her ex-boyfriend’s cheating might qualify as intended to “harass” even if the girl intended only to make him feel ashamed (and thus annoy him) and not to seriously distress him.

But even if the girl’s intentions are good — if she just wants to warn her acquaintances so that they will not be fooled by the ex in the future, or she just wants to truthfully explain to her friends why she is feeling depressed — she may worry that a prosecutor, judge, and jury will mistakenly assume that she is motivated by a desire to seriously distress. Indeed, in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), the U.S. Supreme Court rejected a similar attempt to regulate speech based on the speaker’s intentions, precisely because such intent-based tests tend to deter even well-intentioned speech.

In Wisconsin Right to Life, the government urged the Court to uphold a statute restricting corporate election-related speech by reading the statute as limited to speech that is intended to influence an election. Id. at 465. But the Court rejected such an intent-based test, because “[n]o reasonable speaker would choose to [speak when] covered by [an intent-based statute] if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard ‘blankets with uncertainty whatever may be said,’ and ‘offers no security for free discussion.’” Id. at 468 (Roberts, C.J., lead op.); id. at 492 (Scalia, J., concurring in part and in the judgment) (similarly concluding that “test[s] that [are] tied to … a court’s perception[] of . . . intent” are “ineffective to vindicate the fundamental First Amendment rights” of those against whom the intent-based law is applied).

The same applies to the high-school girl in the hypothetical, and to many other speakers. Section 3-805(b)(2) “blankets with uncertainty” whatever the girl might say online that condemns her ex-boyfriend and that might seriously distress him. The statute “offers no security” for her to freely discuss her life with her classmates and friends. And the U.S. Supreme Court has recognized that whether a law chills speech (even when it does not unambiguously forbid the speech) counts in determining whether the law is unconstitutionally overbroad, because such a chill “silences some speakers whose messages would be entitled to constitutional protection.” Reno v. ACLU, 521 U.S. 844, 879 (1997).

Nor does the § 3-805(b)(2) requirement that the defendant act “maliciously” add any protection for speakers. Presumably an intent to seriously distress or even to harass would be seen as sufficient to satisfy the “maliciously” requirement. Indeed, the only Maryland criminal statute that defines “maliciously,” Md. Crim. L. § 6-101 (which deals with arson), defines the term to simply mean “acting with intent to harm a person or property,” which would presumably cover an intent to distress or harass. A speaker who is condemning her classmate, even out of the best intentions, might indeed worry that prosecutors, judges, and juries will think she is speaking “maliciously” and with an intent to “harass” or “seriously distress.”

III. The restricted speech is protected by the First Amendment.

Section 3-805(b)(2) thus punishes or deters a wide range of speech. This speech is constitutionally protected, and § 3-805(b)(2) is thus unconstitutionally overbroad on its face.

Speech about people’s daily lives — about their romantic breakups, tensions with classmates, and other such matters — is fully protected by the First Amendment, even when it lacks a political dimension. “Most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from government regulation.” United States v. Stevens, 559 U.S. 460, 479 (2010). “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits… . Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worthy.” Id. at 470. “The First Amendment does not protect speech and assembly only to the extent that it can be characterized as political … .” United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 223 (1967).

Nor does such speech lose protection simply because it may psychologically harm minors. A limited category of materials — obscene-as-to-minors material — may indeed be criminalized under “variable obscenity” statutes on the grounds that such speech may harm minors. Ginsberg v. New York, 390 U.S. 629, 673 (1968). But the U.S. Supreme Court has rejected attempts to expand this narrow category of restrictable speech. For example, the goal of protecting minors did not save a restriction on drive-in theaters displaying movies that depict nudity. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975). More recently, this goal failed to save a restriction on the sale of violent video games to minors. Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 791-93 (2011). It likewise cannot save a law that suppresses (among other things) minors conveying facts and opinions about their ex-boyfriends or their classmates.

Indeed, the North Carolina Supreme Court’s recent Bishop decision expressly rejected criminal liability for speech that intentionally “torment[s]” a minor, even when that statute was limited (as § 3-805(b)(2) is not) to speech that reveals “private, personal, or sexual information pertaining to a minor.” __ N.C. __; 2016 WL 3221098, 17-18. “[R]eading the motive [to torment] and subject matter requirements in tandem here does not sufficiently narrow the extensive reach of the cyberbullying statute,” because the law “could criminalize behavior that a robust contemporary society must tolerate because of the First Amendment, even if we do not approve of the behavior.” Id. at 18.

Section 3-805(b)(2) is also broad enough to punish even speech about matters of public concern, such as

  • a blog post, whether by an adult or a minor, revealing a criminal sexual relationship between a student and a teacher (which may intentionally distress the student and not just the teacher),
  • an email thread among classmates discussing a sixteen-year-old’s DUI conviction,
  • an email from one parent to another warning about a high-school student who gave alcohol or drugs to a classmate, and sharply condemning the student in the process,
  • a Facebook post criticizing a student government candidate for cheating on an exam,
  • an online newspaper article sharply condemning some alleged misconduct (or even just artistic failings) on the part of a teen actor, musician, or athlete,
  • an online Yelp review sharply but accurately condemning a teenage employee of a babysitting, dog-walking, or lawn-mowing company for providing poor service.

The First Amendment protection especially clearly safeguards this type of speech, regardless of the speaker’s purposes. “[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment… . [E]ven when a speaker or writer is motivated by hatred or ill will his expression [is] protected by the First Amendment.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988) (citing Garrison v. Louisiana, 379 U.S. 64, 73 (1964)); see also Snyder v. Phelps, 562 U.S. 443, 452 (2011) (applying Hustler to speech on matters of public concern, whether or not it involves public figures).

Indeed, because crime is an issue of public concern, the First Amendment protects a newspaper’s right to publish the name of a rape victim (even though such speech can deeply distress the victim), and the name and picture of a criminal suspect, even when that suspect is only eleven years old. See Florida Star v. B.J.F., 491 U.S. 524, 541 (1989); Oklahoma Pub. Co. v. Dist. Court, 430 U.S. 308, 311-12 (1977). Likewise, the First Amendment protects ordinary citizens discussing similar matters of public concern, even when that discussion distresses a minor. See Citizens United v. FEC, 558 U.S. 310, 341 (2010) (reaffirming that the First Amendment protects all speakers equally, whether or not they are members of the institutional media).

Section 3-805(b)(1), which applies to speech that seriously annoys adults, expressly exempts speech that has a “legal purpose,” and § 3-805(d) makes clear that § 3-805(b)(1) “does not apply to a peaceable activity intended to express a political view or provide information to others.” The Court of Appeals held that such exclusion of protected speech is what made § 3-805(b)(1) constitutional: “[The statute] expressly eliminates constitutionally protected speech from its ambit. [The statute] ‘does not apply to any peaceable activity intended to express political views or provide information to others’ and the conduct to be prohibited must have no ‘legal purpose.’” Galloway v. State, 365 Md. 599, 644 (2001).

But § 3-805(b)(2) lacks any exclusion for speech that has a “legal purpose,” and § 3-805(d) carves out an exception for information or political speech only from (b)(1), not to (b)(2). Under the logic of Galloway, § 3-805(b)(2) thus lacks the protections that would make the provision constitutional.

IV. The analogy to the intentional infliction of emotional distress tort does not save § 3-805(b)(2) from overbreadth.

Section 3-805(b)(2) also cannot be justified by analogy to the intentional infliction of emotional distress tort.

1. The emotional distress tort is limited to “extreme and outrageous” behavior. When the Court of Appeals recognized the emotional-distress tort, it expressly endorsed the Restatement of Torts language describing the “extreme and outrageous” element: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Harris v. Jones, 281 Md. 560, 567 (1977). Following this, many Maryland decisions have held that even highly distressing behavior is generally not extreme and outrageous. See, e.g., Lasater v. Guttmann, 194 Md. App. 431, 443 (2010) (holding that a husband’s pattern of lying about his income, engaging in extramarital affairs, losing his temper, and publicly embarrassing his wife was not extreme and outrageous); Hines v. French, 157 Md. App. 536, 546 (2004) (holding that a police officer’s laughing while slamming the plaintiff’s recently-operated-on face into the side of a car, and handcuffing the plaintiff so tightly that the cuffs made lacerations, was not extreme and outrageous); Hamilton v. Ford Motor Credit Co., 66 Md. App. 46, 59 (1986) (holding that the defendant’s incessant and hostile calling of the plaintiff at all hours to collect a debt “was unquestionably rude, insensitive, callous, and in poor taste,” but not extreme and outrageous).

Yet § 3-805(b)(2) is not confined by an “extreme and outrageous” speech requirement. It thus criminalizes speech that would not even create civil liability under the emotional-distress tort. A high-school girl’s post angrily denouncing her ex-boyfriend for cheating on her is not “extreme in degree”; indeed, such speech is likely quite common. Nor is it “atrocious, and utterly intolerable in a civilized community.” It is thus immune even from tort liability. But § 3-805(b)(2) would criminalize it, so long as a prosecutor and a judge finds that it was intentionally “seriously distressing.”

2. While the emotional-distress tort creates only civil liability, § 3-805(b)(2) subjects the speaker to criminal liability. Criminal laws especially chill speech: “The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.” Reno v. ACLU, 521 U.S. 844, 872 (1997). And the “extreme and outrageous” test, even if constitutionally permissible in a civil case, is likely unconstitutionally vague when applied to deprive someone of his liberty. Cf., e.g., Smith v. Goguen, 415 U.S. 566, 575-78 (1974) (holding that a ban on “contemptuous[]” treatment of the American flag was unconstitutionally vague, 15 years before the Court held that there was a substantive constitutional right to desecrate the flag).

3. The emotional-distress tort must exempt speech on matters of public concern, even when the speech is seen as “outrageous” and intended to seriously distress. In Snyder v. Phelps, 562 U.S. 443 (2011), the U.S. Supreme Court held that members of the Westboro Baptist Church protesting the Westminster funeral of a fallen soldier could not be liable for intentional infliction of emotional distress under Maryland law because their signs — some of which read “Thank God for IEDs,” “Fag Troops,” “God Hates Fags,” and “Thank God for Dead Soldiers” — addressed matters of public concern. Id. at 458. The First Amendment protection offered to such speech “cannot be overcome by a jury finding that the picketing was outrageous.” Id. at 458. To be constitutional, the intentional infliction of emotional distress tort thus must exempt speech on matters of public concern. Id. at 458-59.

Yet § 3-805(b)(2) expressly rejects any exception for speech on matters of public concern (as opposed to §§ 3-805(b)(1) and 3-805(d), which provide such an exception for distressing speech about adults). Because the statute criminalizes a substantial amount of protected speech, it is overbroad, and thus unconstitutional.


Maryland Criminal Law § 3-805(b)(2) is a content-based restriction on speech that punishes or deters a wide range of fully protected speech. Nor can § 3-805(b)(2) be justified by an analogy to the emotional-distress tort. Section 3-805(b)(2) is thus overbroad and violates the First Amendment.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/29/challenge-to-maryland-law-banning-speech-that-intentionally-seriously-distresses-minors/

Jacob Levy’s libertarian critique of Brexit

Brexit Puzzle

The debate over Brexit has divided libertarians and other free market advocates in both the US and the UK. Those who view Brexit with skepticism (myself included), emphasize its potential negative effects on free trade and migration. But libertarian defenders of Brexit understandably emphasize the European Union’s many dubious economic regulations. A Britain freed from the dictates the EU bureaucracy might potentially have a much freer economy. Although I am on balance critical of Brexit, I don’t think this latter consideration can be lightly dismissed. But it may not be nearly as powerful an argument for Brexit as it may seem.

I. Why Brexit is Unlikely to Reduce the Burden of Economic Regulation.

Jacob Levy is one of the world’s leading libertarian political theorists (he might prefer the term “market liberal” or “classical liberal”). In an excellent recent post, he casts some cold water on the notion that a post-Brexit UK is likely to pursue much more free-market policies than it did before:

On the regulatory side– which is what the right-leaning British press talks about a lot– there’s the usual number of silly and micromanaging stories that emerge out of any regulatory system. Bananas and vacuum cleaners and light bulbs, oh my. But these are anecdata, and any regulatory system (public or private) that governs by rules will have some silly ones…. We don’t have great aggregate measures of regulation, but we do have some that libertarians are generally willing to use….

According to the 2015 Economic Freedom of the World report’s overall measure for regulatory burden, Czech Republic, Denmark, Estonia, Lithuania, Sweden, Ireland, and Romania are all less regulated than the UK. The most recent Heritage index of “business freedom” ranks Denmark, Finland, Germany, and Sweden ahead of the UK; for labor freedom, Denmark, Austria, and Ireland. In all these cases, these relatively-liberal EU countries compare favorably with other developed countries in or out of the EU.

None of these measures are perfect, but they shouldn’t be systematically biased against the UK. And what they tell us is:

a) Membership in the EU is perfectly compatible with maintaining a light overall regulatory burden by developed country standards; and

b) the UK is not pushing the deregulatory envelope inside the EU, is not running into an EU constraint in its attempt to minimize the regulatory burden.

Once we move beyond anecdata about light bulbs, vacuum cleaners, and bananas, I don’t see any reason to think that there’s some tremendous unmet demand for deregulation in the British political system, or that overall leaving the EU will much lighten the total regulatory load when the UK is often above the EU floor anyway.

Notice that Jacob is not claiming that EU regulations are a good thing. Nor does he deny that Brexit might free Britain from some dubious EU economic policies. His point is that it is unlikely that it will lead to a significantly less regulated British economy overall. In some fields, as he points out, the EU actually forces member states to regulate less than they would otherwise, for example with respect to favoritism for politically influential domestic industries. Much of the far left supports Brexit for precisely this reason: they hope it will free the UK to pursue more statist economic policies, rather than more free market ones. The deregulatory effects of Brexit in some areas might be counterbalanced by increased interventionism in others. As Jacob explains, the data also do not support the notion that EU membership has increased overall government spending in Britain.

Jacob also makes the important point that Brexit might lead to more interventionist economic policies within the remaining EU. Relative to the other big powers in the Union, such as France, Germany, and Italy, the UK has traditionally been a voice for relatively more market-oriented EU policies. Removing that influence will make the EU more statist, at least in the near term. As Jacob puts it, “the likelihood is that overall economic freedom will decline even if there’s some increase in it in Britain.”

I would add that Brexit might well generate added political political momentum for xenophobic national forces in both the UK and elsewhere in Europe. Such movements are not only hostile to free trade and migration, but also tend to favor large welfare states and interventionist economic policies across the board (so long as the perceived beneficiaries are native-born white Europeans). F.A. Hayek long ago warned that right-wing nationalism is often closely linked to economic statism. The growing power of this ideology is not a development free market advocates should welcome.

II. Some Caveats and Uncertainties.

I do have a few potential caveats about Jacob’s otherwise compelling analysis. First, he implicitly assumes that the UK will not become significantly more pro-free market than it was before Brexit. If you think that a Conservative government led by Boris Johnson or Theresa May will adopt much more market-oriented policies than it did in David Cameron, then its possible that the leaving the EU will facilitate such reforms. So far, however, I see little evidence of any such free market revolution in the offing.

Conversely, it is also possible that, even if the EU has not made British economic policy much more interventionist so far, it might have done so in the future had Britain voted for Remain. I don’t doubt there are many in the EU bureaucracy who would love to expand their power and impose tighter, more centralized regulation on all of Europe. At the same time, such power-grabs will be difficult in an era when the EU and its bureaucracy are increasingly viewed with suspicion, not just in Britain but in many other European countries. The fact that the EU is “distant and unloved,” as Jacob puts it, makes it more difficult for it engage in massive overregulation. By contrast, many Europeans will be less likely to resist similar policies adopted by national governments, which command deeper reservoirs of loyalty.

Finally, it is possible that free trade and migration will be preserved intact if Britain joins the European Economic Area – the so-called “Norway option” favored by some Brexit proponents. EEA membership requires free trade and migration for EU citizens, and would also subject the UK to many (though not all) EU economic regulations. From a libertarian standpoint, the Norway option retains most of the good features of the European Union, while freeing Britain from at least a few of the bad ones.

However, it may be politically difficult for the UK to sign a deal with the EU that forces it to accept free migration – the very thing that much of the base of the Brexit movement most sought to eliminate. Mamy Brexiters may also not care for an arrangement under which the UK remains subject to many EU rules, but no longer has any direct influence over their content. Even if the UK ultimately does endorse the Norway option, the rump EU might reject it. Some EU leaders want to take a hard line in negotiations with the British, and might not be willing to give it a favorable deal that encourages other states to leave the EU as well.

Obviously, both my post and Jacob’s assess Brexit from a libertarian perspective. Adherents of some other ideologies might well regard as virtues of Brexit some of the very things that I see as defects.

In sum, there is still a lot of uncertainty over the long-term impact of Brexit. But Jacob’s analysis should at least give pause to those who expect that Brexit will lead to a more libertarian Britain, or a more free-market Europe more generally.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/28/jacob-levys-libertarian-critique-of-brexit/

Idaho federal prosecutor issues follow-up statement about Twin Falls child sexual assault controversy

1. As I mentioned Sunday, Idaho U.S. Attorney Wendy J. Olson — the chief federal prosecutor in Idaho — released a statement prompted by the Twin Falls child sexual assault controversy. On June 2, a 5-year-old girl was allegedly sexually assaulted at a Twin Falls, Idaho, apartment building by three boys ages 7, 10 and 14. The exact nature of the sexual assault is unclear; but apparently the 7-year-old sexually touched the girl, and it seems that the 10- and 14-year-olds are being charged because they put the 7-year-old up to this; they also apparently video recorded the incident. The boys may be Sudanese and Iraqi refugees whose families resettled in Idaho; officials are reported as saying that the boys have been in the United States for less than two years, but it’s not clear whether the families are refugees.

In the weeks after the report, online and local rumors misreported some elements of the alleged crime — the boys were misidentified as Syrian refugees, and the incident was described (apparently incorrectly) as a gang-rape at knife-point, with the children’s fathers cheering the events after they happened. And the stories claimed that Twin Falls authorities were inadequately investigating and covering up the attacks, something that seems not to be so. (Many of the details of the crime haven’t been released, but this apparently stems from the general policy of not releasing such details in cases involving juvenile suspects.) These stories led to threatening emails and phone calls to local officials’ offices. As best I can tell from news accounts, there was no such coverup, though many of the details of the investigation were indeed kept confidential because the alleged attackers were juveniles.

2. In response, on Friday the U.S. Attorney’s office released a statement that said, in relevant part (emphasis added),

The United States Attorney’s Office extends its support to the five-year-old victim of assault, and her family, at the Fawnbrook Apartments in Twin Falls. The United States Attorney’s Office further encourages community members in Twin Falls and throughout Idaho to remain calm and supportive, to pay close attention to the facts that have been released by law enforcement and the prosecuting attorney, and to avoid spreading false rumors and inaccuracies….

The spread of false information or inflammatory or threatening statements about the perpetrators or the crime itself reduces public safety and may violate federal law. We have seen time and again that the spread of falsehoods about refugees divides our communities. I urge all citizens and residents to allow Mr. Loebs and Chief Kingsbury and their teams to do their jobs.”

That, I think, went beyond calling for accuracy (and trying to deter threats, which are indeed criminally punishable). Instead, it suggested that there could be federal prosecution even for “inflammatory” statements “about the perpetrators or the crime” — which are generally protected by the First Amendment — and for “the spread of false information,” which could also be constitutionally protected (especially if the falsehoods are honest mistakes).

3. I’m happy to say that today, Olson released a follow-up statement (thanks to the Idaho Statesman for the pointer):

Many in the press, public and online bloggers are misinterpreting the statement I issued on Friday, June 24, 2016, in support of the five-year-old victim of an assault in Twin Falls, Idaho, and in support of the law enforcement authorities there who are prosecuting the case. The statement was not intended to and does not threaten to arrest or prosecute anyone for First Amendment protected speech.

I issued the statement because public officials in Twin Falls have received threats. Certain threatening or harassing communications may violate federal law and will be investigated. I am also concerned that intentionally false and inflammatory rumors are creating an unsafe environment in Twin Falls. In this case, it appears that the threats have resulted from false and inflammatory information spread about this crime, often times by those from outside of the community. I encourage all to be patient while the juvenile justice system works. I also encourage all to support this victim and her family.

It seems to me that the original statement — “The spread of false information or inflammatory or threatening statements about the perpetrators or the crime itself reduces public safety and may violate federal law” — was indeed correctly interpreted as suggesting that the spread of false information or inflammatory statements, and not just threatening statements, “may violate federal law.” But I’m glad that the follow-up statements is written much more narrowly.

Most of us agree that “inflammatory” statements are bad, as is spreading false information about alleged criminal and alleged governmental wrongdoing (of course, as we understand what’s true and false, and as we define “inflammatory”). But having the government threaten federal prosecution for such speech is worse.

4. I should note that some “harassing” (but not threatening) “communications” to public officials are protected by the First Amendment. The leading case on this is U.S. v. Popa (D.C. Cir. 1999), involving racist voice-mail messages left for then-U.S.-Attorney (and later U.S. Attorney General) Eric Holder. Ion Popa was prosecuted for telephone harassment for leaving those messages, and indeed phoning people just to say offensive things to them is often punishable harassment (see this article for more). But because Popa was calling a high-level official, on matter of public concern, the court held that the speech was constitutionally protected.

The “political speech of one who intends both to communicate his political message and to annoy his auditor — an auditor who might be his elected representative or [a high-level appointed official] — from whom the speaker seeks redress” is constitutionally protected, the U.S. Court of Appeals for the D.C. Circuit held, even if it’s “inten[ded] to annoy, to abuse, or to harass.” True threats of criminal conduct are punishable; but mere harassing communications to high-level officials are constitutionally protected.

I thus wish that Olson had limited her follow-up statement to true threats of criminal conduct, and didn’t also suggest the possibility of federal prosecution of an ill-defined range of “harassing communications.” Still, the revised statement strikes me as much better than the original.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/28/idaho-federal-prosecutor-issues-follow-up-statement-about-twin-falls-child-sexual-assault-controversy/

Alexander Hamilton, the truth and freedom of the press

Alexander Hamilton, by John Trumbull (based on 1801 Giuseppe Ceracchi work); now in the National Portrait Gallery of the Smithsonian Institution.

Alexander Hamilton, by John Trumbull (based on 1801 Giuseppe Ceracchi work); now in the National Portrait Gallery of the Smithsonian Institution. (National Archives)

Alexander Hamilton is much in people’s minds these days. But here’s one thing few people know about him: Though he isn’t usually seen as a libertarian, Hamilton played a historic and immensely influential role in American free press law, just months before his fatal duel.

Libel law. Today, we think of libel as defamatory falsehood: false written statements — especially lies, but sometimes honest mistakes — that injure a person’s reputation. The truth might sometimes lead to civil liability (for instance, under the “disclosure of private facts” tort), but very rarely. And we also think of libel as a civil claim; criminal libel prosecutions are very rare.

In 1700s England, though, criminal libel cases were common, and they covered many written statements that injure a person’s reputation even if they were true. Such statements were outlawed in part because they were seen as likely to produce duels. (Hamilton died because of his harsh statements, albeit oral statements, about Aaron Burr.) And, when said about government officials, such defamatory statements — again, even if true — were seen as undermining the government’s authority.

American law was based on English law, so many Americans assumed American law would take the same view. In the famous colonial-era 1735 John Peter Zenger trial, defense lawyer Andrew Hamilton (no relation to Alexander) had argued that truth must be a defense in libel cases. But though the jury acquitted Zenger, such jury decisions set no legally binding precedent.

That’s why, for instance, an 1802 Vermont Supreme Court decision said that “In the criminal prosecution, the truth or falsity of the libel is immaterial, for even the truth ought not to be thus promulgated, when its direct tendency is to incite revenge, perhaps occasion bloodshed, or at least disturb the public peace.” Other early court decisions agreed. Some early state constitutions did say that the truth of a statement could sometimes be offered in evidence in criminal libel cases. But even those provisions didn’t make truth a legally required defense.

Harry Croswell, Thomas Jefferson and Alexander Hamilton. Alexander Hamilton entered this field in 1803. Thomas Jefferson was President; Hamilton was a prominent and highly respected practicing lawyer in New York. But though Hamilton was out of office, he wasn’t out of political life. When Harry Croswell, a young editor of the Federalist newspaper the Wasp, was indicted for libeling Jefferson, Hamilton came to Croswell’s defense.

Croswell’s publication repeated a longstanding allegation that Thomas Jefferson had paid another editor, James Callender, to write against Washington and Adams. “The charge,” Croswell, wrote, was:

Jefferson paid Callender for calling Washington a traitor, a robber, and a perjurer; for calling Adams a hoary-headed incendiary; and for most grossly slandering the private characters of men who he well knew were virtuous. These charges, not a democratic editor [i.e., an editor belonging to Jefferson’s party] has yet dared, or ever will dare, to meet in an open and manly discussion.

This allegation of Croswell’s injured Jefferson’s reputation, the prosecution charged, thus making it a libel (quite without regard to whether it was true). And it also injured the nation, making it a seditious libel. Croswell, the indictment said, wrote about the president “to represent him … as unworthy of the confidence, respect, and attachment of the people of the … United States”; “to alienate and withdraw from [Jefferson] the obedience, fidelity, and allegiance of the citizens”; “and also to bring [Jefferson] into great hatred, contempt, and disgrace, not only with the people of … the United States, but also with the citizens and subjects of other nations.”

This was a state prosecution, so the Jefferson administration wasn’t directly conducting it. But the New York attorney general at the time, Ambrose Spencer, was a leading New York Jeffersonian; indeed, in the same issue of the Wasp that contained the alleged libel, Croswell also penned a poem about Spencer’s opposition to the Federalists, which began thus (though for some reason Lin-Manuel Miranda did not see fit to include it in the musical):

Th’ Attorney-General chanc’d one day to meet
A dirty, ragged fellow in the street
A noisy swagg’ring beast
With rum, half drunk, at least
Th’ Attorney, too, was drunk — but not with grog —
Power and pride had set his head agog.

Croswell was convicted, after the trial judge, Morgan Lewis, instructed the jury that truth was not a defense in libel cases. Croswell appealed, and Hamilton, who had been engaged to work on the appeal, argued that truth should have been a defense:

The Liberty of the Press consists, in my idea, in publishing the truth, from good motives and for justifiable ends, though it reflect on government, on magistrates, or individuals. If it be not allowed, it excludes the priviledge of canvassing men, and our rulers.

It is in vain to say, you may canvass measures [i.e., you may criticize the actions of the government even if you may not criticize the government officials involved]. This is impossible without the right of looking to men. To say that measures can be discussed, and that there shall be no bearing on those, who are the authors of those measures, cannot be done.

The very end and reason of discussion would be destroyed. Of what consequence to shew its object? why is it to be thus demonstrated, if not to show too, who is the author? It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that, in this our free and elective government, he may be removed from the seat of power.

Hamilton stressed that he was not advocating the freedom to say anything one pleases:

In speaking thus for the Freedom of the Press, I do not say there ought to be an unbridled licence [i.e., unlimited freedom to print whatever one pleases]; or that the characters of men who are good, will naturally tend eternally to support themselves. I do not stand here to say that no shackles are to be laid on this licence.

I consider this spirit of abuse and calumny as the pest of society. I know the best of men are not exempt from the attacks of slander. Though it pleased God to bless us with the first of characters [you know whom he’s talking about, right?], and though it has pleased God to take him from us and this band of calumniators, I say, that falsehood eternally repeated would have [affected] even his name. Drops of water in long and continued succession will wear out [diamond]. This therefore cannot be endured.

And Hamilton went on to say that even truth should not be a defense, if said out of bad motives: Someone who “uses the weapon of truth wantonly,” for instance “for the purpose of disturbing the peace of families,” should be criminally punishable. But Americans must have, Hamilton argued, “the liberty of publishing truth, with good motives and for justifiable ends, even though it reflect on government, magistrates, or private persons.”

150 years of Hamilton victorious. Hamilton’s argument did not prevail: The court split 2 to 2, thus leaving Croswell’s conviction standing. But Justice James Kent, who would become one of the most influential judges and commentators of the early 1800s, endorsed Hamilton’s views in his opinion.

The following year, the New York Legislature enacted a statute implementing Hamilton’s view that truth was always a defense when published “with good motives and for justifiable ends” — phrasing that I believe originated with Hamilton. In the decades after that, many state constitutions were framed precisely this way. To this day, about a third of state constitutions contain Hamilton’s formula.

As often happens, established notions of liberty have moved on from Hamilton’s era. What was a major advance in freedom of the press in the early 1800s eventually came to be seen as too limited. In Garrison v. Louisiana (1964), the U.S. Supreme Court concluded that the “good motives”/“justifiable ends” limitation wasn’t sufficiently protective, at least when it came to matters of public concern: Truth had to be an absolute defense. Other Supreme Court cases strongly suggested, and lower courts cases held, that truth had to be an absolute defense even on matters of private concern. (I myself co-argued one such case, in which a Minnesota court ended up striking down a criminal libel law that contained the Hamiltonian limitation.)

Still, Hamilton’s argument was a major step in the direction of greater freedom of the press. And the formulation that Hamilton used became the dominant view in American libel law for 150 years.

Dinner with the judge. Hamilton and the judge who adopted his view, James Kent, had become close friends in the years before the Croswell case. The bar and the bench were both small; lawyers and judges traveled from courthouse to courthouse together; and Hamilton and Kent were both intellectual figures of the highest rank, and thus likely to appreciate each other’s company.

While they were in Albany for the court sitting that included the Croswell argument, Hamilton, Kent and a few others had dinner together. Over dinner, Hamilton remarked that he thought Burr — who was then planning to run for governor of New York, only to end up defeated by Morgan Lewis, the trial judge in Croswell’s case — was dangerous and untrustworthy. Kent apparently expressed a similar view.

Another man at the dinner, Charles Cooper, reported on these remarks in a letter to Hamilton’s father-in-law and added that he could also detail “a still more despicable opinion which General Hamilton has expressed of Mr. Burr.” Those remarks were then published in an Albany newspaper. Burr demanded that they be retracted. Hamilton refused. Burr challenged Hamilton to a duel. And Hamilton did not live to see his view of the freedom of the press become part of American law.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/28/alexander-hamilton-the-truth-and-freedom-of-the-press/

The New York Times’s worshipful 1935 obituary for Justice Oliver Wendell Holmes

Yesterday, I criticized Judge Richard Posner’s harsh criticism of what I thought was an anodyne tribute to the late Justice Antonin Scalia by Justice Elena Kagan (FYI, the post has been updated). This reminded me that way back in 1935, the New York Times didn’t exactly hold back in the opening paragraphs of its obituary for Justice Holmes:

As Justice Holmes grew old he became a figure for legend. Eager young students of history and the law, with no possibility of an introduction to him, made pilgrimages to Washington merely that they might remember at least the sight of him on the bench of the Supreme Court. Others so fortunate as to be invited to his home were apt to consider themselves thereafter as men set apart. Their elders, far from discouraging this attitude, strengthened it.

A group of leading jurists and liberals filled a volume of essays in praise of him, and on the occasion of its presentation Chief Justice Hughes said:

“The most beautiful and the rarest thing in the world is a complete human life, unmarred, unified by intelligent purpose and uninterrupted accomplishment, blessed by great talent employed in the worthiest activities, with a deserving fame never dimmed and always growing. Such a rarely beautiful life is that of Mr. Justice Holmes.”

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/28/the-new-york-timess-worshipful-1935-obituary-for-justice-oliver-wendell-holmes/

Et vir

The Supreme Court just granted review in the Wonder the Goldendoodle case (credit to Amy Howe for pointing out Wonder’s participation), and the name of the case listed on the court docket — “FRY, STACY, ET VIR V. NAPOLEON COMMUNITY SCH., ET AL.” — reminds me of this legalese question: What does “et vir” mean in a case name, and what is its flip side?

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/28/et-vir/