“For at least six reasons, the motion [for emergency injunction against allegedly defamatory web sites] is DENIED”

From Friday’s federal district court decision in Kazal v. Price (M.D. Fla. Dec. 8, 2017), which I thought was worth quoting in detail, and which seems a nice counterpoint to the Ohio state court Barley House injunction:

The latest spat in a protracted dispute between several Australian businessmen, this action involves (at least) six actions on two continents. Four of the Kazal brothers sue Matthew Price, a former employee of a company owned by Australian businessman Rodric David, for tortious interference with a business relation and for intentional infliction of emotional distress. The complaint alleges that Price runs five websites that host “defamatory” and “untrue” content about the Kazal brothers. [Footnote: Charifkazal.com, kazalfamilytruth.com, karlkazal.com, adamkazal.com, and tonykazal.com. Two of the websites (kazalfamilytruth.com and karlkazal.com) appear defunct.]

Background

The websites, which mostly re-publish news articles from the Australian media, detail a tumultuous history between the Kazal brothers and David. The story begins several decades ago, when the eight Kazal brothers emigrated from Lebanon to Australia. While two brothers opened a restaurant in Sydney, another brother (Tony) worked for several years for the royal family in the United Arab Emirates. According to one story from the Sydney Morning Herald, Tony and Karl “leveraged their status” with “Gulf diplomats” to arrange meetings between the Gulf royalty and Australian businessmen.

Meanwhile, other Kazal brothers opened restaurants and bars in historic buildings owned by the Australian government and leased to private investors. In one instance, the Kazals reportedly convinced the Australian government to spend more than six million dollars renovating one of the buildings. According to the Sydney Morning Herald, linked on Price’s websites, an unlawful bribe from the Kazals to a government official secured the government’s agreement to pay for the renovation. Several newspapers report that Australia’s Independent Commission against Corruption later charged Charif Kazal with bribery.

While several Kazal brothers grew the restaurant and bar business, another brother partnered with David, the Australian businessman. David and Kazal purportedly agreed to buy an unprofitable waste-recycling operation in Sydney and to invest in the operation’s turn-around. One exposé from a Sydney paper reported that David spent several million dollars on the waste operation, but the Kazal family allegedly failed to pay its share (according to the exposé, Libya’s sovereign investment fund promised the Kazals $2.5 million; for reasons not explained in the story, the “Gaddafi-controlled fund” reportedly never paid the money). After the Kazals sued David in the Cayman Islands over the failed investment, a Cayman judge reportedly found that David, whom the Kazal brothers accused of attempting to “steal” the Kazals’ half of the company, breached a fiduciary duty and that the Kazal brothers breached a promise to finance part of the waste operation.

In addition to the Cayman litigation, actions involving David (or David’s company, Thunder Studios), Price, and the Kazals pend in the Central District of California, the Superior Court of Los Angeles, and the Federal Court of Australia.

While David and a Kazal brother litigated in the Cayman Islands over the waste operation and another failed co-investment in Dubai, an Australian newspaper scrutinized another Kazal brother’s purported connection to Hezbollah. Tony Kazal purportedly agreed to convert several million units of an unspecified African currency into American dollars in exchange for a “lucrative commission.” A man in Beirut allegedly gave Kazal a bag of cash. Citing an investigation by Lebanese police, the Sydney Morning Herald reports that both the man and the money belong to Hezbollah.

The Middle District of Florida recently closed an action in which Adam Kazal sued Price and moved in an “emergency ex parte application” for leave to depose Price on less than a week’s notice. The application states that the Australian court ordered Kazal not to “make certain statements regarding David,” but Kazal purportedly violated the order. The Australian court held Kazal in criminal contempt and sentenced Kazal to eighteen months of imprisonment, which sentence an Australian appellate court affirmed in part and reversed in part. Appealing a second time, Kazal claimed that “inflammatory statements” on the websites created by Price infuriated Kazal and caused Kazal to violate the Australian court’s order….

[T]he plaintiffs claim that Price posted “defamatory” and “untrue” content on the websites in an intentional effort to inflict emotional distress and to interfere with an unspecified business relation. Also, the plaintiffs allege that schoolchildren tease or mock the children of Tony Kazal about the purported connection to Hezbollah and about the purported criminality. Moving for a temporary restraining order and for a preliminary injunction, the Kazals request that an order direct Price to “immediately remove access to and/or the content” from the websites and that an order prohibit Price from “making further statements … that the Plaintiffs are members of a terrorist organization or otherwise involved in criminal or fraudulent activities.”

[Libel law and First Amendment analysis]

… Although the plaintiffs nominally sue for intentional infliction of emotional distress and for tortious interference with a business relation, the crux of the plaintiffs’ claims is defamation. Excluding jurisdictional and prefatory paragraphs, more than half of the complaint alludes to Price’s allegedly “false,” “untrue,” or “defamatory” statements. If true, the reporting from the Australian press might vindicate the content of Price’s websites. “Truth, of course, is a complete defense to a charge of libel.” And nothing appears “extreme” or “outrageous” about a defendant’s re-publishing an accurate news story (even though the story publicizes unflattering information). [Footnote: Again, this order decides nothing about the accuracy of the website or the newspaper reports.] The sparse record, which comprises an unverified complaint, the Price deposition, and several conclusory affidavits that deny the newspaper reports, precludes finding at this time that the plaintiffs likely will succeed on the merits….

Also, the plaintiffs fail to explain the mechanism by which an injunction against Price’s re-publishing news stories from the press remedies the plaintiffs’ alleged injuries. At least half a dozen newspaper stories published by several newspapers report the information about which the plaintiffs sue (again, Price’s websites mostly re-publish the newspaper stories, although the websites contains several so-called “memes” that appear nowhere in the newspapers).

Even if an injunction prohibits Price’s speaking about the Kazal family, the information about the Kazal family remains easily accessible elsewhere on the Internet. Because the plaintiffs fail to show clearly that an injunction against Price’s speech remedies an imminent and irreparable injury, the request for a preliminary injunction warrants denial….

An injunction issues only if the prospective harm to the moving party from denying the injunction outweighs the harm to the non-moving party from enjoining specific conduct. According to the plaintiffs, schoolchildren tease or mock the children of plaintiff Tony Kazal about the reported criminality and about the reported connection to Hezbollah. Also, the plaintiffs attribute to Price’s websites a “loss of business.” An affidavit from the Kazal family’s accountant claims that the websites “stilted the growth trajectory” of the family business but declines to identfy a business transaction that failed as a proximate result of the websites. Based on these purported harms, the plaintiffs claim that the balance-of-equities favors an injunction.

Insisting (without citation to anything other than the plaintiffs’ conclusory affidavits) that the websites contain falsities, the plaintiffs state that Price will suffer “absolutely no harm” if an injunction restrains Price’s speech. But a long line of Supreme Court decisions explains that a “prior restraint[ ] on speech and publication [is] the most serious and least tolerable infringement on [a person’s] First Amendment rights.”

Under the First Amendment, a person maintains a weighty interest in free speech — an interest so great that the judiciary routinely refuses to enjoin speech before the final adjudication of the defendant’s liability. See, e.g., Gunder’s Auto Center v. State Farm Ins., 617 F.Supp.2d 1222 (M.D. Fla. 2009) (denying the plaintiff’s request for a preliminary injunction in a defamation and tortious-interference action); Bollea v. Gawker Media, LLC, 2012 WL 5509624 (M.D. Fla. Nov. 14, 2012) (Whittemore, J.) (denying the plaintiff’s request for a preliminary injunction in a defamation and IIED action and explaining that “[i]n all but the most exceptional circumstances, an injunction restricting speech pending final resolution of constitutional concerns is impermissible”); Roca Labs, Inc. v. Consumer Opinion Corp., 2014 WL 6389657 (M.D. Fla. Nov. 16, 2014) (denying the plaintiff’s request for a preliminary injunction in a defamation and tortious-interference action). In sum, Price’s First Amendment interest weighs heavily against a preliminary injunction, and the plaintiffs fail to show clearly a balance-of-equities that favors restraining Price’s speech.

[Rule 65]

The plaintiffs’ request for a temporary restraining order and preliminary injunction violates at least three requirements in Rule 65, Federal Rules of Civil Procedure. First, under Rule 65(b)(1)(B), the attorney for the party that requests a temporary restraining order must “certif[y] in writing any efforts made to give notice and the reasons why it should not be required.” The plaintiffs’ attorneys fail to submit an affidavit certifying an effort to notify Price about the motion and fail to explain the necessity for an ex parte order.

Second, Rule 65(d)(1) requires that the preliminary injunction “state its terms specifically” and “describe in reasonable detail — and not by referring to the complaint or [an]other document — the act or acts restrained.” … [T]he specificity requirement in Rule 65(d) ensures that the enjoined party — who faces a punitive consequence for willfully violating an injunction — knows exactly what he can and cannot do. A recent decision explains:

[A]n injunction must describe the ‘restrained or required conduct’ in a manner that permits a judge asked to enforce the injunction to speedily and confidently determine whether some oppugned conduct offends the injunction and, if so, to design, impose, and enforce a remedy with assurance that any violation is contrary to the manifest and unmistakable terms of the injunction and is, therefore, knowing and willful. As an injunction increases in ambiguity and breadth and taxes increasingly a judge’s interpretative ability, the inclination and legal authority of a judge either to require compliance or to punish non-compliance decreases at least proportionally.

The proposed injunction requires Price to remove from the websites “false, malicious, or harmful information stating that Plaintiffs are associated with terrorism, criminal misconduct, or fraud.” Also, the proposed injunction orders Price to “refrain from making further statements” about those topics.

Replete with mischievously broad phrases susceptible to more than one reasonable interpretation, the requested injunction fails to adequately apprise Price exactly what he can and cannot say. For example, the proposed injunction offers no objective method to determine what constitutes “harmful information” and risks the possibility that a trivial comment, if subjectively offensive to a plaintiff, might violate the injunction (even if an impartial party familiar with the litigants’ circumstances would find the comment innocuous). Because the requested injunction fails to specify exactly what Price can and cannot say, the plaintiffs’ motion warrants denial.

Conclusion

For at least six reasons, the motion … for a temporary restraining order and preliminary injunction is DENIED. The plaintiffs fail to show a “substantial likelihood” of success on the merits, fail to show an imminent and irreparable injury, and fail to show a balance-of-equities that favors the injunction. Also, the requested injunction violates the requirements in Rule 65 that the movant’s attorney certify an effort to notify the non-moving party about the requested injunction, that the movant’s attorney explain why notice is impracticable, and that the injunction describe with specificity the enjoined conduct.

Show-Cause Order

By submitting an “emergency” motion for a temporary restraining order at 4:20 p.m. last night, the plaintiffs demanded the district court’s immediate attention. A review of the record in this action and the other Middle District of Florida action shows nothing approaching an imminent and irreparable harm that requires enjoining the defendant’s speech without permitting the defendant an opportunity to respond.

In fact, the due-process concerns attendant to an ex parte restraint on the defendant’s speech far outweigh the incremental harm, if any, that would result from the continued operation of the websites while the defendant responds to the motion for a preliminary injunction. No later than 5 p.m. on DECEMBER 15, 2017, attorneys Michael Whitt and Minyao Wang must explain in a single paper no longer than ten pages why an order should not require Whitt and Wang to remit $1000 each to the district court as a sanction for filing an unwarranted “emergency” motion.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/for-at-least-six-reasons-the-motion-for-emergency-injunction-against-allegedly-defamatory-web-sites-is-denied/

Logos, ethos and pathos (not to be confused with Athos, Porthos and Aramis)

Aristotle and later Cicero wrote about argument being composed of logos, ethos and pathos. Most people know the “logos” as logic and “pathos” as emotion (easy to remember because of words such as “pathetic” and especially “pathos”). But it’s easy to misremember “ethos” as an appeal to ethics, or to (say) the ethos of an era or a law.

But ethos actually means something different: It’s an appeal to the audience’s perception of the speaker’s character, or (especially in Cicero’s view) the character of the person whom the speaker represents. This perception can stem from the speaker’s reputation, but also the speaker’s manner on the present occasion:

People’s minds are won over by a man’s prestige, his accomplishments, and the reputation he has acquired by his way of life. Such things are easier to embellish if present than to fabricate if totally lacking, but at any rate, their effect is enhanced by a gentle tone of voice on the part of the orator, an expression on his face intimating restraint, and kindliness in the use of his words, and if you press some point rather vigorously, by seeming to act against your inclination, because you are forced to do so.

Indications of flexibility, on the part of the orator and the client, are also quite useful, as well as signs of generosity, mildness, dutifulness, gratitude, and of not being desirous or greedy. Actually, all qualities typical of people who are decent and unassuming, not severe, not obstinate, not litigious, not harsh, really win goodwill, and alienate the audience from those who do not possess them. And these same considerations must likewise be employed to ascribe the opposite qualities to our opponents. [Quoted from James M. May’s translation of Cicero’s De Oratore.]

To be sure, Cicero acknowledges that there are times when there is an “opportunity to use some form of sharp and violent emotional arousal to set the juror’s heart aflame,” and then presumably mildness has to be set aside — but Cicero’s general view is that an ethos-based argument should take advantage of the virtues (real or perceived) outlined in the block quote above.

Of course, in our legal system an overt appeal to this ethos might itself be unethical (as my colleague Steve Yeazell has pointed out): A lawyer, for instance, is often barred from personally vouching for his client’s innocence or other qualities of character. And of course both judges and jurors are supposed to attend to the merits of the case, not the personal qualities of the lawyers.

But human nature being what it is, listeners and readers — I’m most familiar with judges as listeners, but I suspect this is true of jurors as well — can’t help but be affected by the ethos component of a lawyer’s manner, personality and (especially for judges) reputation. Advice from the ancients that is worth remembering even today, just not under the obvious mental translation as “ethics.”

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/logos-ethos-and-pathos-not-to-be-confused-with-athos-porthos-and-aramis/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.

• Area landowner must feel like he’s Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
• The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
• College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the “primary beneficiary” of the work experience.
• Can auditor, who is seeking out property Delaware can escheat, audit two companies’ Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb “to cheat” is derived, on the podcast.)
• Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate — in front of armed officers — to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn’t need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
• Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
• Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
• In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can’t sue over that in federal court.
• Indiana’s new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had “received critiques about his interpersonal skills” — and that, says the Seventh Circuit, violates the Contracts Clause.
• Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That’s two weeks too late.
• Montana’s ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
• Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man’s First Amendment claim should not have been dismissed.
• Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn’t fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
• Auto dealers do not have standing to challenge Missouri officials’ decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public’s interests.
• And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can’t be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.

Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city’s position that the rules will benefit kids. Instead, the requirements will reduce parents’ options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges’ programs. But it’s not too late! The city has reopened a public comment period. Learn more here and submit a comment here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/short-circuit-a-roundup-of-recent-federal-court-decisions-84/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.

• Area landowner must feel like he’s Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
• The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
• College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the “primary beneficiary” of the work experience.
• Can auditor, who is seeking out property Delaware can escheat, audit two companies’ Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb “to cheat” is derived, on the podcast.)
• Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate — in front of armed officers — to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn’t need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
• Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
• Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
• In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can’t sue over that in federal court.
• Indiana’s new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had “received critiques about his interpersonal skills” — and that, says the Seventh Circuit, violates the Contracts Clause.
• Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That’s two weeks too late.
• Montana’s ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
• Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man’s First Amendment claim should not have been dismissed.
• Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn’t fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
• Auto dealers do not have standing to challenge Missouri officials’ decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public’s interests.
• And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can’t be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.

Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city’s position that the rules will benefit kids. Instead, the requirements will reduce parents’ options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges’ programs. But it’s not too late! The city has reopened a public comment period. Learn more here and submit a comment here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/short-circuit-a-roundup-of-recent-federal-court-decisions-84/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.

• Area landowner must feel like he’s Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
• The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
• College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the “primary beneficiary” of the work experience.
• Can auditor, who is seeking out property Delaware can escheat, audit two companies’ Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb “to cheat” is derived, on the podcast.)
• Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate — in front of armed officers — to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn’t need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
• Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
• Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
• In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can’t sue over that in federal court.
• Indiana’s new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had “received critiques about his interpersonal skills” — and that, says the Seventh Circuit, violates the Contracts Clause.
• Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That’s two weeks too late.
• Montana’s ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
• Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man’s First Amendment claim should not have been dismissed.
• Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn’t fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
• Auto dealers do not have standing to challenge Missouri officials’ decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public’s interests.
• And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can’t be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.

Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city’s position that the rules will benefit kids. Instead, the requirements will reduce parents’ options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges’ programs. But it’s not too late! The city has reopened a public comment period. Learn more here and submit a comment here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/short-circuit-a-roundup-of-recent-federal-court-decisions-84/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.

• Area landowner must feel like he’s Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
• The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
• College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the “primary beneficiary” of the work experience.
• Can auditor, who is seeking out property Delaware can escheat, audit two companies’ Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb “to cheat” is derived, on the podcast.)
• Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate — in front of armed officers — to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn’t need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
• Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
• Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
• In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can’t sue over that in federal court.
• Indiana’s new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had “received critiques about his interpersonal skills” — and that, says the Seventh Circuit, violates the Contracts Clause.
• Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That’s two weeks too late.
• Montana’s ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
• Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man’s First Amendment claim should not have been dismissed.
• Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn’t fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
• Auto dealers do not have standing to challenge Missouri officials’ decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public’s interests.
• And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can’t be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.

Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city’s position that the rules will benefit kids. Instead, the requirements will reduce parents’ options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges’ programs. But it’s not too late! The city has reopened a public comment period. Learn more here and submit a comment here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/short-circuit-a-roundup-of-recent-federal-court-decisions-84/

Justice Sotomayor unintentionally highlights the danger of having too many laws

U.S. Supreme Court Justice Sonia Sotomayor speaks at St. Francis College in New York in February. (Kathy Willens/AP)

During last week’s Supreme Court oral argument in Christie v. NCAA, an important federalism case, Justice Sonia Sotomayor noted a dangerous feature of our legal system. We have far more laws than the state and federal governments can effectively enforce:

[I]f every governor enforced every law on the book, the state would be more than bankrupt. It would have no way of surviving…

There are countless laws, and even laws that are in force, that are not enforced totally….

States make choices [about which laws to enforce] all the time.

Justice Sotomayor is absolutely right. At both the state and federal levels, we have so many laws that law enforcement officials can only target a small fraction of offenders; so many that the vast majority of adult Americans have violated state or federal law at one time or another. The executive therefore exercises enormous discretion about which lawbreakers to go after and which ones to leave alone.

This, in turn, has dire consequences for the rule of law in our society: It makes it very difficult for ordinary citizens to determine what laws apply to them and how to avoid violations, and ensures that whether a given lawbreaker gets prosecuted depends far more on the exercise of police, prosecutorial, and executive discretion than on any objective application of legal rules. Thus, the rule of law is in large part supplanted by the rule of whatever men and women control the levers of power at any given time. As Sotomayor notes, those people have vast discretion in deciding which of the “countless laws” on the books they want to enforce, and when.

Ironically, Sotomayor did not mean to condemn this aspect of our legal system, but instead to portray it as a positive – at least in one limited sense. She raised the issue in response to New Jersey’s argument that a federal law barring the state from “authorizing” legal sports gambling under their own law amounted to unconstitutional “commandeering” of the states. According to Sotomayor, the state may not really be commandeered because “[t]here is nothing here telling this state that it has to enforce this law.” All it has to do is keep the anti-sports gambling law on the books. Executive officials could still turn a blind eye to sports gambling, even if it is illegal.

Sotomayor’s argument strikes me as weak. Even if the federal law does not require states to enforce laws against sports gambling, it does require them to keep such laws on the books, unless – perhaps – the state legalizes gambling with no restrictions whatsoever. As Justice Anthony Kennedy pointed out during the oral argument, mandating the continuation of a law “the state doesn’t want but that the federal government compels the state to have” surely qualifies as commandeering.

Moreover, mandating the continuation of anti-sports gambling laws is a major imposition on states, even if law enforcement officials currently have no desire to enforce it. It prevents the state legislature from credibly assuring businesses and consumers that their gambling activities are actually legal, and thereby immune from prosecution. Legitimate businesses will be reluctant to invest in an enterprise that could be targeted by law enforcement any time executive branch decision-makers change their minds, or are replaced by a new set of officials with different views than the old.

But whether or not it helps to refute New Jersey’s position in Christie v. NCAA, Justice Sotomayor’s statement highlights a dangerous reality of our legal system. One that too many of us tend to ignore. So long as there are vastly more laws on the books than the government can realistically hope to enforce, the rule of law will continue to be imperiled.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/justice-sotomayor-unintentionally-highlights-the-perils-of-having-too-many-laws/

Sen. Orrin Hatch on President Trump’s appointments to the judiciary

Sen. Orrin Hatch (R-Utah). (Rick Bowmer/Associated Press)

The office of Sen. Orrin Hatch (R-Utah) passed along this item, which I thought would be very interesting for our readers, as it tells us something about how Republicans are continuing to argue about judicial appointments; naturally, if a Democratic senator wants to pass along something similar from the other side, I’d love to publish it as well:

In Washington, it can sometimes be difficult to focus on what counts. Today’s information environment is increasingly atomized and persistently polarized. Almost all will inevitably focus on who is up, and who is down, in the endless cycle of partisan gamesmanship. But none should forget that what matters, at the end of the day, is policy. And the first year of new Republican government has delivered plenty of that.

Here in the Senate, despite fits and starts, we are moving the ball forward. Notwithstanding often vicious treatment by the media and the constant obstruction of the Democrats here in Congress, President Trump is managing his domestic policy agenda like a true leader does: he names his agenda, he picks his team, and he executes. The results speak for themselves.

We are closing in on a historic tax reform package, which itself includes an important first step on healthcare reform. Regulatory burdens are falling, as the administrative state faces its first substantial pushback in decades. From labor to environmental to fiscal and monetary policy, from education to justice issues, there’s substantial progress on nearly every front. Only a year into the new administration, we are making good on the pledge for a historic change in Washington.

But, of course, there is perhaps no greater legacy that a President leaves behind than the judicial appointments he makes. President Trump’s choices there will echo for generations. Further, there was perhaps no more distinguishing promise that then-candidate Trump made to the American people than the restoration of the judiciary. And thus, it is particularly gratifying to recognize that in no area have promises made more fully ripened into promises kept.

Neil Gorsuch was a superb choice for the Supreme Court. At a historic juncture for our courts, he stands poised to seize the mantle left by Justice Antonin Scalia, and carry the cause of originalism and textualism forward for a new generation. But Justice Gorsuch was only the beginning. From the circuits courts to the district courts, judicial nominations, across the board, have been outstanding. The results will be felt for decades to come.

From the outset, President Trump has brought to this process the same acumen and drive that made him so successful in business. First, he has clearly named his agenda: a judiciary recommitted to the impartial administration of justice and refocused on the rule of law. Second, he has wisely picked his team: White House Counsel Don McGahn and his staff have been, in a word, exceptional. And third, the President is executing flawlessly: as a former Chairman of the Judiciary Committee, I can say confidently that we’ve never seen such a high-quality stable of nominees, and nominated at such a rapid pace.

As is not much of a secret in Washington these days, Republicans tend to disagree among themselves quite a bit. Through the effort to deliver on our promises to the American people, there will be differences of opinion on the best policy means to reach shared policy goals. But one thing that continues to unify the Conference here in the Senate, and Republicans across the country, is the conviction that an independent, impartial judiciary is simply too important to lose. And that is why, whatever our differences on other issues, conservatives across the board heartily approve of the way this administration has handled judicial nominations. I’ll continue to work with my colleagues here in the Senate Judiciary Committee, as well as Leader McConnell, to confirm these judges. As the rest of our agenda gains steam, judicial selection will remain the vanguard.

Through the 2016 campaign, the President promised to pull the best people onto his team, and to deliver real results for the American people. On judicial nominations, that’s precisely what he is doing. By installing and empowering such a capable White House Counsel’s office, he has signaled the seriousness with which he takes this effort. And by keeping up the pace of nominations, he has assured that this enormous opportunity for improvement in the judiciary will not go to waste. The product of the administration’s efforts, and the good that can still be done, will carve a defining legacy of which we can all be proud.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/sen-orrin-hatch-on-president-trumps-appointments-to-the-judiciary/

‘Religious Holidays Aren’t Represented Equally on Campus’ — a Catholic campus, that is

The Loyola [Chicago] Phoenix reports:

It’s that time of year again, and Loyola has decked out its buildings with decorations for the holiday season. But Christmas gets more attention on campus than other religious holidays.

Although Loyola fosters a space for non-Christian religions to practice their faith — such as in the Damen Student Center’s second floor of Ministry Offices for Muslim, Hindu and Jewish students — there is a lack of public festivity compared to Christmas, such as decorations and activities of other religions’ holidays the entire student body could be part of.

Roman Catholicism is the largest religious group on campus, according to Loyola’s undergraduate admissions’ latest report. The report said the 2016 first-year class identified as 60 percent Roman Catholic and 40 percent other — Jewish, Hindu, Muslim [about 800 students out of a student body of about 16,000 -EV], Protestant and Eastern Orthodox….

Sajid Ahmed, a 19-year-old Muslim student and prayer coordinator for the Muslim Student Association (MSA), said although the atmosphere of the Christmas season brings him happiness, he wishes Muslim holidays were just as prominent….

Recognizing smaller holidays like Bodhi day [a Buddhist holiday] is important to Loyola, which desires intellectual diversity, according to Shweta Singh, associate professor in the school of social work and adviser of HSO.

“People should at least know about [other holidays],” Singh said. “They’re smaller festivals, but they’re not small to the people celebrating them.”

Singh said it’s the responsibility of both student organizations representing other faiths and cultures and the university to publicly celebrate as many religious holidays on campus as possible.

Here’s my thinking, as a non-Christian myself:

1. Both public universities and private universities that aspire to serious and cosmopolitan intellectual life should be treating students of minority religions equally. But it doesn’t follow that they should commemorate the same way holidays that are an important part of the traditions of 90 percent of the students (both the Christians and the nonreligious who still grew up celebrating Christmas) as holidays that are important to 2 percent. A university might choose to do that for pedagogical reasons, to better acquaint students with the big world; or it might save such pedagogy for matters other than holiday decorations. No one should be entitled, though, to a particular mix of holiday celebrations. (Note that, while the establishment clause has been read as barring some religious displays by public universities, a great deal of secular traditions associated with Christmas, such as Christmas trees, lights, and the like, are permissible.)

2. But when it comes to identifiably religious universities — Catholic, Protestant, Jewish, Muslim or anything else — this is even more clear. Loyola keeping a Catholic identity helps promote real intellectual diversity in American public life (and, again, I’d say the same as to other religious universities; I can imagine some religious belief systems that are so pernicious that, while they must be constitutionally protected, we can still say they hurt American life more than they help it, but I think that most of the traditions that found universities do have a good deal to contribute).

I think it would be unwise, and contrary to the intellectual freedom needed for serious universities to thrive, for it to try to suppress other religious messages from students, student groups and others. It might even make sense to accommodate such other religious groups in various ways, and it sounds as though Loyola does. But when it comes to Loyola’s own messages, including its holiday decor, I think it’s good for Loyola to maintain a Catholic identity, and not to “celebrate” religious traditions to which it doesn’t subscribe. If that would remind me, as a nonreligious person or as an ethnic Jew, that it’s a university that’s identifiably Catholic, and that it doesn’t endorse my views (again, even though it doesn’t punish me for those views) — well, I think I should have known that all along.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/08/religious-holidays-arent-represented-equally-on-campus-a-catholic-campus-that-is/

National injunction developments

A few developments on the national injunction should be noted.

First, on Nov. 30, a subcommittee of the House Judiciary Committee held a hearing on the national injunction. The other witnesses were Amanda Frost, Michael Morley and Hans von Spakovsky. The written testimony of each witness and a video recording of the hearing are available here. The statement by Rep. Bob Goodlatte, the chairman of the full committee, is available here.

Second, as of today, my article on the national injunction is in print: “Multiple Chancellors: Reforming the National Injunction.” I’m grateful to the many readers whose criticism made the piece stronger.

If you want to read more about the national injunction, I recommend several good treatments: this article and this article by Michael Morley, this forthcoming article by Zayn Siddique, and this recently published note by Getzel Berger. The intersection of the national injunction with other practices of the federal courts is considered in this piece by Andrew Bradt and Zachary Clopton (on Multi-District Litigation), and this piece by Kate Huddleston (on venue).

In addition, I’ve written about national injunctions repeatedly in this space, most recently a post on the argument that they are supported by the Administrative Procedure Act and a post on a defense of national injunctions by a district court judge.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/08/national-injunction-developments/