The Volokh Conspiracy

From Miyoko's Kitchen v. Ross, decided Aug. 21 by Judge Richard Seeborg (N.D. Cal.), but just recently posted on Westlaw:

Miyoko's produces and sells a variety of plant-based, vegan products which are designed to resemble dairy products in appearance and taste. The company markets its foods using names that reference the products' more common dairy analogues, such as a "vegan butter" and "vegan cheese." These dairy references are always preceded by conspicuous terms such as "vegan" or "plant-based." …

California law directs the Department to review food labelling for compliance with federal law. See Cal. Food & Agric. Code § 32912.5 (specifically directing as much "in connection with advertising and retail sales of milk, … dairy products, cheese, and products resembling milk products"). As pertains here, federal law forbids a retailer from selling "misbranded" food items (that is, items with "labelling [that] is false or misleading"), food items "offered for sale under the name of another food," and food items that, though "purport[ing] to be or … represented as a food for which a definition and standard of identity" exists, do not "conform to such definition and standard …." 21 U.S.C. § 343. For nearly a century, the standard of identity for butter has required a product "made exclusively from milk or cream, or both … and containing not less than 80 per centum by weight of milk fat." 21 U.S.C. § 321a.

On December 9, 2019, Miyoko's received written notice from the Department's Milk and Dairy Foods Safety Branch indicating the label for its "Cultured Vegan Plant Butter" failed to comply with this regulatory framework. Noting that "the product is not butter" and may not imply it is "a dairy food without [traditional dairy] characteristics," the Letter instructed Miyoko's to remove five terms from the product's label: "butter," "lactose free," "hormone free," "cruelty free," and "revolutionizing dairy with plants." The Letter also objected to the display of the animal sanctuary imagery and the phrase "100% dairy and cruelty free" on Miyoko's website, stating "[d]airy images or associating the product with [agricultural] activity cannot be used on the advertising of products which resemble milk products." …

The court held that Miyoko's use of "butter" (prefixed with "vegan" or "plant-based"), "lactose free," and "cruelty free" were likely truthful and nonmisleading and therefore likely protected by the First Amendment. (The question had to do with likelihood, because the court was deciding whether to grant a preliminary injunction; the court's analysis, though, seemed pretty confident on these points.)

But the court held that "hormone free" is literally false:

The parties do not seriously disagree about the truthfulness of Miyoko's "hormone free" claim: because plants contain naturally-occurring hormones, and because Miyoko's vegan butter is made of plants, it necessarily contains hormones as well….

Miyoko's struggles to escape this result by reference to its prototypical consumer, who allegedly "understands that the phrase … in context with other phrases [on the label] … mean[s] that the company's vegan butter does not contain the artificial hormones that are sometimes added to animal-based dairy products." While there is something to be said for the connection a brand forges with its customers, this reasoning takes that concept a step too far.

[The Court's First Amendment caselaw] insists, at the threshold, that commercial speech be true, and provides no exception for falsities made true by the target consumer's supposed contextual awareness. Indeed, as the State persuasively points out, no court has ever repudiated a regulator's authority to demand that products claiming to lack hormones actually lack hormones. Against this backdrop, Miyoko's insistence that it would be "illogical for any consumer to believe" that a product labelled "hormone free" does not contain hormones falls decidedly flat…. Because its plant-based butter is not "hormone free," there is no merit to Miyoko's request for license to label it with that term.

And the court held likewise as to "revolutionizing dairy with plants"

[T]o "revolutionize" an industry requires "chang[ing] it fundamentally or completely" [citing a dictionary]. "Revolutionizing dairy" thus denotes direct interaction with animal-based milk products in a way that leaves them "fundamentally" different than they were before. Put simply, this is not at the core of what Miyoko's—a maker of dairy replacements—does or seeks to do. Just like the statement that a vegan clothier's motorcycle jackets "revolutionize leather with cotton," or that a maker of non-alcoholic beverages "revolutionizes whiskey with seltzer," this claim of Miyoko's is plainly misleading. The State should not be enjoined from responding to its presence in the marketplace with appropriate regulatory action.

1/30/1939: Justice Felix Frankfurter takes oath.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Bound By Oath podcast: the origins of Section 1983—originally known as Section 1 of the Ku Klux Klan Act of 1871.

New on the Short Circuit podcast: Rudy Giuliani is in hot water. And we talk about the undertalked about Reception Clause.

In which the D.C. Circuit determines that the Army Corps of Engineers acted unlawfully in granting an easement to the Dakota Access Pipeline underneath Lake Oahe but that we shouldn't be too hasty in doing anything about that unlawfulness.
The U.S. can prosecute crimes committed on seagoing vessels that sail under the American flag, but what about "stateless" vessels that fly no flag at all? It can prosecute crimes there too, says the First Circuit, which is bad news for this defendant, his stateless boat, and his honkload of stateless cocaine.
Some legal commentators would have you believe that it's never RICO, but this First Circuit opinion demonstrates that if the prosecution introduces copious evidence of your organization's decade-long work as a "mega-gang," then it is probably RICO.
In criminal statutes, does the word "willfully" mean "on purpose" or "with bad intent"? Third Circuit: Yes.
Norfolk, Va. police arrest two men after a search of their car uncovers 300+ grams of fentanyl, four cell phones, a loaded gun, and $1,800 in cash. Though the men admit to owning the other items, neither claim ownership of the fentanyl. Fourth Circuit: The men clearly knew each other and were acting suspiciously, so it was reasonable for the cops to assume that they were engaged in a common enterprise and the fentanyl belonged to both.
Citizen of El Salvador sought to avoid deportation on the ground he faces persecution as a former member of the MS-13 gang. The Board of Immigration Appeals denied relief, reasoning that the social group of "former Salvadoran MS-13 members" is too amorphous to warrant such relief. Fourth Circuit: Even assuming that decision is entitled to Chevron deference (a question we need not decide), the Board's decision is unreasonable and cannot stand. The group is hardly amorphous, as it's limited to former gang members. Dissent: Chevron.
Woman visiting an inmate is strip searched, forced to remove her tampon for inspection, and made to "squat and cough." Fourth Amendment violation? Fourth Circuit: Qualified immunity. The guards had reasonable suspicion to believe that she was attempting to pass the inmate contraband given rumors that the inmate was smuggling drugs and that a security guard said he saw the woman unbutton her waistband an hour into her visit. Dissent: This was significantly more intrusive than a standard strip search—should've gone to a jury.
Is using someone else's Social Security number a crime involving moral turpitude? Fifth Circuit (further entrenching a circuit split): Sure is. Dishonesty is an essential element of the crime, and it is thus turpitudinous.
A Houston peroxide manufacturer discovered that its hurricane preparedness plan was inadequate when Harvey pummeled Texas and the facility's materials blew up. Neighbors sue, and the trial court gives the okay for a class action. Fifth Circuit: Not so fast. When expert opinions are used to certify a class, the court must first ensure that those opinions would be admissible at trial under Daubert.
Tennessee couple seeks bankruptcy protection, claiming less than $6,000 in assets. Zoinks! They actually control millions through a complex web of family trusts and shell companies. And the couple's largest creditor is having a bad time at the Sixth Circuit. One decision says the creditor can't pierce the corporate veil in reverse (i.e., get assets from some of those entities to satisfy the couple's debts). And another won't allow the creditor to pursue a malpractice claim against the couple's bankruptcy attorneys.
Back in November, a panel of the Sixth Circuit said that a district court could not deny a COVID-related request for compassionate release with a "barebones" form order. But that panel, says a different panel of the Sixth Circuit, was wrong, and one-sentence orders denying compassionate release are totally cool. (In dissent, Judge Moore, who wrote the initial panel opinion, suggests they got things right the first time.)
Redacted opinions aren't too common, but here's one from the Sixth Circuit about a sentence reduction for an inmate who assisted police after hearing another inmate say, "[I]f you ever want to get rid of a body, hogs is the way to go."
A home healthcare agency declines to pay nurses for the overtime they worked because it "couldn't make money" if it did. She sues, wins with a settlement. The district court orders attorneys' fees, but then reduces them to 35% of the total settlement amount because that's what judges in that district "typically approve." Sixth Circuit: That's not a good reason. Grant the fees as requested, add some for this appeal, and please don't appeal again.
Sixth Circuit: There's not a lot that will void the absolute immunity that prosecutors normally enjoy, but threatening to charge someone with double murder unless they falsely implicate someone else (who served 41 years before being released) will surely do it.
This Ponzi scheme began—like so many others—when an investment manager decided to paper over a loss rather than fess up to his investors. He invented a fictional investment in an Australian hedge fund, and he used funds from new investors to pay the old. The scheme ran for over seven years before it finally came crashing down, at which point the district court sentenced the gentleman to over seven years in prison. Seventh Circuit: Affirmed.
When an elected official blocks someone on Twitter, do they violate the First Amendment? Eighth Circuit: Not in this case; the Twitter account here was the elected official's private account, started in her capacity as a political candidate, not as an elected official. Dissent: But the block occurred after she was elected and started using the account for government business. That violates the First Amendment.
Pro tip from the Eighth Circuit: When seeking qualified immunity for allegedly firing a tear-gas canister at a TV news crew for no good reason, do not rely on a set of factual claims contradicted by the video shot by that very TV news crew.
Is a private entity constrained by the First Amendment because it rents its space from the government? Still no, says this Ninth Circuit panel.
Airman faces court martial for sexually assaulting four female airmen. The jury is instructed that if they determine he committed one of the crimes, they may consider that as evidence showing his propensity to having committed any of the other crimes. They convict. A year after his conviction becomes final, the Court of Appeals for the Armed Forces holds the instruction unconstitutional in a different case. Ninth Circuit: Alas, the decision doesn't apply retroactively.
Another week, another appellate decision involving churches and COVID-19 restrictions. This time, the Ninth Circuit gives a mixed ruling, enjoining some restrictions while upholding others, including a ban on "singing and chanting."
Officers shoot a participant in an illegal "sideshow"—an event where drivers perform donuts, burnouts, and other similar maneuvers—while the driver is moving at a speed of "up to five miles an hour." It's unclear if the victim knew the police (in an unmarked car with a yellow siren) were actually police, and the police claim they worried he was going to run them over. Ninth Circuit: No qualified immunity. It is clearly established that officers cannot shoot the driver of a slow-moving car when they could reasonably step out of the way instead.
Kansas militiamen plot to bomb an apartment and mosque complex, acquiring 300 lbs of fertilizer and drafting a manifesto urging Americans to stop "the sellout of this country." Unbeknownst to them, a militia member is an undercover informant. Convictions and lengthy sentences all around. Tenth Circuit: The defendants were eager to commit the crime and thus not entrapped, and their manifesto—addressed to the government and referencing policy—qualifies them for the terrorism sentence enhancement. (More in this longform piece.)

Are you looking to kick-start a career in public interest law? Are you motivated by working on cutting-edge constitutional cases, stopping government abuses, and championing individual rights? Good news, IJ is hiring for Law and Liberty Fellows to join in August/September 2022. This Fellowship is IJ's preferred path for recent graduates or post-clerkship candidates with less than two years of experience. The Law and Liberty Fellowship is based at our headquarters in Arlington, VA. We are currently looking for Fellow to join us in August 2022. The program runs through August 2024. Upon completion, Fellows are considered for permanent employment. Visit the Careers section of our website, www.ij.org/jobs, to learn more and apply. Application is open through March 12.

I've written about this statute before, most recently with regard to the employee allegedly fired for being at the (she says) non-riot protest that led to the Capitol riot. (See also this 2012 article of mine discussing such statutes throughout the country.) But Wednesday, Judge Edward M. Chen issued an interesting decision about the law arising in a different context. From Hamilton v. Juul Labs, Inc. (N.D. Cal.):

Plaintiff Marcie Hamilton worked at Juul … as its Director of Program Management. Plaintiff Jim Isaacson served as JUUL's Senior Director of Design Assurance …. This [Private Attorneys General Act] suit is brought on behalf of more than 3,000 aggrieved employees….

[Plaintiffs'] Claim 7 is brought under Labor Code § 1101, which forbids employers from adopting any rule, regulation, or policy which: (a) "[f]orbid[s] or prevent[s] employees from engaging or participating in politics or from becoming candidates for public office" or (b) "[c]ontrol[s] or direct[s], or tend[s] to control or direct the political activities or affiliations of employees." It is also brought under Labor Code § 1102, which provides that no employer shall "influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity."

Labor Code §§ 1101 and 1102 are "designed to protect the fundamental right of employees in general to engage in political activity without interference by employers." The purpose of these sections is to prevent employers from "misus[ing] their economic power" to interfere with their employees' political activities, namely their "espousal of a candidate or a cause." …

The provisions of the [Juul External Communications Policy] … exhibit the strict control over Juul employees' political opinions which the Labor Code forbids. Section 6.4.6.3 provides "[a]ll JUUL Labs Personnel must be aware that any communication about the Company or its products, staff, policies, research, relationships, or competitors generally constitutes a Company Communication and is covered by this Policy." Section 6.2.1 provides "[a]ll Company Communications must receive internal approval," and Section 6.2.2 provides "[c]onfidential information, any information marked or intended only for internal communication or use within the Company, and any other information obtained during the course of employment must not be disclosed or used in any Company Communication or personal communication without prior approval."

Together, these provisions operate to place prior restraints on Juul employees' communications about any matter related to the company, including their espousal of causes relating to vaping products. The ECP thereby interferes with the opinions of Juul employees' in a manner that violates the Labor Code ….

Juul's day-to-day policies and practices are just as restrictive. Plaintiffs allege that "JUUL's Non-Contractual Policies and Practices … establish that JUUL made, adopted, and enforced a policy that prevented employees from engaging in political activity in violation of Labor Code § 1101 and 1102. This illegal policy is evidenced by JUUL's written instruments, employee training, and JUUL's culture of concealment." For instance, Juul instructs employees "that they cannot—among other things—correct political candidates spreading alleged 'misinformation' about JUUL, 'engage with youth on the topics of tobacco and nicotine,' 'engage in social media,' discuss vaping, cigarettes, drinking, or any age-restricted products in the 'earshot of youth,' share or laugh at JUUL Labs-related memes, or help a young family member quit smoking."

Accepting these allegations as true and drawing all reasonable inferences in Plaintiffs' favor, the Court finds that these allegations state a plausible claim for unlawful suppression of protected political activities …. Even without the ECP, these policies and practices operate as a prior restraint on Juul employees' espousal of a candidate or a cause. These policies and practices prevent Juul employees from promoting (or even engaging with) a political candidate, and they prevent employees from engaging with vaping-related causes on the internet…..

1/29/1923: Justice Edward Sanford takes oath.

Please feel free to write comments on this post on whatever topic you like! (As usual, please avoid personal insults of each other, vulgarities aimed at each other or at third parties, or other things that are likely to poison the discussion.)

Yesterday, I blogged about a handful of judge who announced they would take senior status shortly after the inauguration. Today, Law360 reports on more judges who have decided to step down from active service. Here, I will indicate when each judge became eligible for senior status, based on my calculations:

Judge Phyllis J. Hamilton (NDCA)—2017
Judge Jeffrey S. White (NDCA)—2014
Judge William H. Alsup (NDCA)—2012
Judge Catherine C. Blake (DMD)—2015
Judges Richard D. Bennett (DMD)—2015
Judge Ellen L. Hollander (DMD)—2020
Judge Ursula Ungaro (SDFL)—2016
Judge Dan Aaron Polster (NDOH)—2016
Judge Victoria A. Roberts (EDMI)—2016
Judge B. Lynn Winmill (DID)—2017
Judge Michael W. Mosman—He will turn 65 in December 2021
Vanessa D. Gilmore—Will leave the bench when she turns 65 in October 2021

Law360 offers some commentary on the rash of retirements:

"They're just dropping like flies," said Carl Tobias, a University of Richmond law professor who tracks judicial nominations.

Nine of the 13 retiring judges were appointed by Democrats — eight by Clinton and one by President Barack Obama. Of the four GOP appointees, three were confirmed when their states had at least one Democratic senator whose support would have been required under Senate traditions.

The flurry of transitions so soon after Biden took office suggests some judges may have been waiting out President Donald Trump: Ten of the 13 judges have been eligible for senior status since at least 2017.

In my forthcoming article, I am considering how to measure the ideology of the judge who takes senior status. The ideology cannot be measured solely on the basis of the appointing President. Because of factors like blue slips and the (former) judicial filibuster, a nominee may be quite distant from the appointing President's ideology. For example, a George W. Bush nominee in a double-blue state (with two Democratic senators) may be closer to a Clinton nominee in a double-blue state.

Leading Democrats suggest that these judge declined to step down because they didn't approve of the sorts of judges Trump would appoint in their stead:

Senate Majority Leader Chuck Schumer, D-N.Y., suggested as much Monday on MSNBC.

"There will be lots of vacancies that come up," he predicted. "I think there are a lot of judges, Democratic appointees who didn't take senior status while Trump was president, who now will."

Sen. Sheldon Whitehouse of Rhode Island, a senior Democrat on the Judiciary Committee, said Wednesday that he thought judges delayed retirement plans because Trump named unqualified lawyers with ideological credentials, in his view.

"I have to believe that there were some judges who looked around at the pool of Trump nominees and, setting aside their political persuasions, thought … 'We can do better than this gong show of political clowns,'" Whitehouse said on a panel with the liberal Alliance for Justice.

Stay tuned. I will continue to track this issue.

From U.S. v. Griffith, decided yesterday by Judge P. Kevin Castel (S.D.N.Y.):

Defendant Virgil Griffith is charged in an indictment with conspiring to violate the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. §§ 1701–1706. The indictment alleges that an object of the fifteen-month conspiracy was to provide services to the Democratic People's Republic of North Korea ("DPRK") without the required government approvals. He now moves to dismiss the indictment …. [U]pon review of the law governing the offense conduct, the indictment states a federal crime and violates no constitutional prohibition….

Griffith asserts that he is an American citizen from Tuscaloosa, who at the time of the acts underlying the indictment, was domiciled in Singapore working for the Ethereum Foundation as a Senior Researcher. His position was similar to a business development manager for the Foundation. As part of his employment and interest in cryptocurrencies, Griffith spoke and gave presentations at various panels or conferences about the technology.

In August 2018, Griffith learned about a cryptocurrency conference in North Korea. Since early 2018, Griffith wanted to establish an Ethereum environment in the DPRK, at one point texting a colleague, "we'd love to make an Ethereum trip to the DPRK and setup an Ethereum node…. It'll help them circumvent the current sanctions on them." Griffith also sent texts to a colleague speculating that while he was not sure why the DPRK was interested in cryptocurrencies, it was "probably avoiding sanctions."

In January 2019, Griffith applied to the State Department for permission to travel to the DPRK, informing them that he would speak at a cryptocurrency conference about "the applications of blockchain technology to business and anti-corruption." The State Department denied his request, though according to the defense, they did not inform him that traveling to DRPK or participating in the conference would violate United States law. Griffith was determined to attend despite the denial, and sought the approval of the DPRK UN Mission in Manhattan. He sent the mission (via email) copies of his CV, passport, and explained his desire to attend the conference. He was granted a visa a month later.

Griffith flew to the DPRK on April 18, 2019. The conference was held from April 23 to April 24. He flew back to Singapore on April 25. The parties characterize the nature of Griffith's presentation differently. Griffith claims that he spoke before approximately 100 North Koreans, covering very basic information about use of blockchain technology, use of "smart contracts," and "information that one could readily learn from a Google search[.]" The government claims that Griffith gave a presentation and answered questions on cryptocurrency topics that were pre-approved by the DPRK and largely surrounded the potential to launder money and evade sanctions. The government obtained portions of audio recordings of the conference that have been produced to the defendant.

Upon returning to Singapore, Griffith visited the U.S. embassy to report his trip, and was interviewed by a State Department official for "several hours." On May 22, 2019, he traveled to New York and was interviewed by the FBI at their request. On November 6, 2019, he was questioned over the phone by the FBI. On November 12, 2019, he again was interviewed by the FBI, this time in San Francisco, where he voluntarily turned over his cell phone. On or about November 28, 2019, he was arrested at Los Angeles International Airport on a criminal complaint. On January 7, 2020, an indictment was filed charging him with one count of conspiring to violate the IEEPA….

Give your answer in the comments, and no fair peeking! I just learned it today, so I don't advise people to use it unless they're confident that it's well-known in their jurisdiction. (A Westlaw search suggests that it's used in New York and a bit New Jersey, and very little elsewhere.)

From Prof. Michael McConnell (Stanford), a leading constitutional scholar and legal historian:

Much of the discussion of the constitutionality of trying Former President Trump on impeachment charges after he has left office consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed. Not enough attention has been paid to the constitutional text, or the timing of this particular impeachment.

Whether a former officer can be impeached is beside the point. Donald Trump was President of the United States at the time he was impeached by the House of Representatives. The impeachment was therefore unquestionably permissible (putting aside any disagreements over the nature of the charges).

Article I, Section 3, Clause 6, states: "The Senate shall have the sole Power to try all Impeachments." The key word is "all." This clause contains no reservation or limitation. It does not say "the Senate has power to try impeachments against sitting officers." Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.

Article II, Section 4, states: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." This provision does appear applicable only to sitting officers. But it does not limit the power of the Senate to try, which comes from Article I, Section 3, Clause 6. It merely states that removal from office is mandatory upon conviction of any sitting officer. No lesser sanction will suffice.

Article I, Section 3, Clause 7, states: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgment and Punishment, according to Law." Read together with Article II, Section 4, this means that the consequence of conviction on impeachment must include removal from office, may include disqualification from future office, and may not include any other sanction. The first sanction is limited to sitting officers, which makes sense. The second sanction is not so limited.

Some argue that the conjunction "and" in Article I, Section 3, Clause 7, implies that the sanction must include both removal and disqualification, and that because removal of a former officer is not possible, disqualification must also not be allowed. But the clause does not say that both sanctions are required; it says that the judgment may not go beyond imposition of both sanctions.

I have not seen any answer to this textual point from those who think the trial of Mr. Trump would be unconstitutional. They ignore the fact that he was properly impeached (at least, insofar as timing is the issue), and they ignore the text of Article I, Section 3, Clause 6, which states that the Senate may try "all" impeachments. They conjure up a limitation on the Senate's power by a misconstruction of the sanctions limitation of Article I, Section 3, Clause 7. And, of course, they bolster their argument with motivated reasoning about consequences for the republic, which are no more persuasive than the motivated arguments coming from the other side.

I suppose that if there were powerful historical evidence that this was not the understanding of the founders, we might have a debate between text and historical understanding. But the historical evidence supports the text. The two British impeachment trials prior to the Constitution both involved former officers, and the first impeachment trial under the new Constitution involved a former Senator. The only respect in which history may clash with text is that history does not support the conclusion that only a sitting officer may be impeached—an issue distinct from the question of trial, and not relevant to the current situation.

While I hope that vaccination changes things over the next few months, for now only virtual speaking engagements are possible. Last semester, I gave virtual talks "at" a variety of institutions, in the United States and abroad, including Harvard, Yale, Cornell, the University of Virginia, Columbia, and others. If nothing else, I am much more comfortable speaking on Zoom and other similar systems than I was before!

Below is my list of online speaking for the spring semester. I am open for business for additional events.if you would like to invite me to give a "virtual" talk about any of my areas of expertise (described in more detail at my website here) at your own university, think thank, or other similar organization, please feel free to contact me.

Unless otherwise noted, they are open to the public, not just students and faculty at the relevant institution. All time are US eastern time (again, unless otherwise noted).

Many of these events are about my recent book Free to Move: Foot Voting, Migration and Political Freedom. But I am happy to talk about other issues within my expertise as well. The latest and most timely addition may be the second impeachment of Donald Trump (my writings on the subject were cited in the House Judiciary Committee impeachment report).

I will update this post regularly, with new speaking engagements, and additional information about existing ones.

January 29, Osher Lifelong Learning Institute, University of California, San Diego, 10-12 AM Pacific time/1-3 PM eastern. "Free to Move: Foot Voting, Migration, and Political Freedom." More detailed description and registration information available here. My understanding is that this event is open only to paying UCSD Osher Institute participants.

February 4, 12-1:15 PM, Harvard Law School: "Free to Move: Foot Voting, Migration, and Political Freedom" (Sponsored by the Harvard Crimmigration Clinic). Free registration available here.

February 11 and 18, 8-9 PM, Speakeasy: "How to Get Your Academic Book Published." This is a two-part series intended for academics, policy analysts and others who want to learn the nuts and bolts of how to write a book and get it published with an academic publisher. I will answer questions and give individualized advice to participants in the second half of each sessio. Sign-up information available here. There is a $40 fee for both talks combined.

February 23, 3-4:30 PM, NYU Law School: "Free to Move: Foot Voting, Migration, and Political Freedom" (sponsored by the Classical Liberal Institute). With commentary by NYU law professors Richard Epstein (one of the world's leading experts on property rights and libertarian legal theory) and Rick Hills (leading federalism scholar). Free registration here.

March 4, 7:30-8:45 PM, CSI/CUNY: "Free to Move: Foot Voting, Migration, and Political Freedom" (sponsored by the Legal Studies Institute annual lecture series—rescheduled from 2020). Registration information and link TBA.

There are five, and you can read English-language summaries linked to from this page. Four of the five decisions reverse Facebook's decisions to remove content, and thus take a relatively speech-protective provision, though (unsurprisingly) not always as speech-protective a position as U.S. First Amendment law would apply to governmental restrictions on speech. The one decision that the panel upheld had to do with the use of an ethnic slur against Azerbaijanis in the Armenian-Azerbaijani conflict:

The post used the term "тазики" ("taziks") to describe Azerbaijanis. While this can be translated literally from Russian as "wash bowl," it can also be understood as wordplay on the Russian word "азики" ("aziks"), a derogatory term for Azerbaijanis which features on Facebook's internal list of slur terms. Independent linguistic analysis commissioned on behalf of the Board confirms Facebook's understanding of "тазики" as a dehumanizing slur attacking national origin.

It's possible that the nipple decision, by the way, would be actually more protective than First Amendment law would be as to governmental restrictions on speech on some kinds of government property. First Amendment law allows reasonable, viewpoint-neutral restrictions in such government-as-proprietor situations (as opposed to general bans on speech even on private property, with the private property owner's permission, imposed by the government as sovereign). A categorical ban on depictions of the female nipple in a limited public forum would likely be upheld under such a standard.

Yesterday's Eighth Circuit decision in Campbell v. Reich, written by Judge Morris Arnold and joined by Judge Steven Colloton, considered "whether [Missouri state representative Cheri Toalson] Reisch acted under color of state law when she blocked [Mike] Campbell on Twitter." If she was acting under color of state law, viewpoint-based blocking would likely have violated the First Amendment; but if she was acting wearing her private citizen hat, she'd be free to engage in such blocking:

Campbell maintains that [Reisch acted under color of state law] because she blocked him for criticizing her fitness for political office even though she had created a virtual forum for the public to discuss "the conduct of her office." Reisch says she didn't act under color of state law because she runs this Twitter account in a private capacity, namely, as a campaigner for political office….

Campbell encourages us to follow the path taken by Knight First Amendment Inst. v. Trump (2d Cir. 2019) and Davison v. Randall (4th Cir. 2019) and conclude that Reisch acted under color of state law. In Davison, the chair of a local governmental board, Phyllis Randall, blocked a constituent from a Facebook page. The page, titled "Chair Phyllis J. Randall," was created the day before Randall was sworn in as chair, and she designated the page "governmental official." Randall also had a personal Facebook page and a page devoted to her campaign. As the Fourth Circuit pointed out, Randall used the page "as a tool of governance" by updating constituents about the county's activities and emergency responses, as well as by soliciting public input on policy issues. And it bore certain "trappings" of her office, including a page title that noted Randall's official title, lists of official contact information, links to the official county website, posts about official activities, and even posts expressly directed to all of Randall's constituents.

In Trump, the Second Circuit considered President Trump's Twitter account, which was unabashedly used for official purposes. President Trump and members of his administration described the account as official and used it to announce, describe, and defend policies; to promote his legislative agenda; to announce official decisions; and to engage with foreign leaders, among other things. His press secretary described the tweets as "official statements" of the president, members of his administration helped him operate the account, and even the National Archives deemed the tweets "official" for purposes of archiving them. As that court explained, "the evidence of the official nature of the Account is overwhelming." The court reached this conclusion even though President Trump had created the account long before he became president. The court was careful to note, however, that "not every social media account operated by a public official is a government account."

We hold that Reisch's account is the kind of unofficial account that the Trump court envisioned. First of all, no one seriously disputes that her account at least began life as a private account because Reisch was not a public official when she created it. Indeed, it seems safe to say that someone who isn't a public official cannot create an official governmental account. But even if Reisch had been a public official at the time, we would still hold that she had not created an official governmental account because she used it overwhelmingly for campaign purposes: She created the account the day she announced her candidacy; she solicited donations to her campaign on the account; and, for over a year, she sought to convince her audience to support her election bid.

We don't intimate that the essential character of a Twitter account is fixed forever. But the mere fact of Reisch's election did not magically alter the account's character, nor did it evolve into something different. A private account can turn into a governmental one if it becomes an organ of official business, but that is not what happened here. The overall theme of Reisch's tweets—that's she's the right person for the job—largely remained the same after her electoral victory. Her messages frequently harkened back to promises she made on the campaign trail, and she touted her success in fulfilling those promises and in her performance as a legislator, often with the same or similar hashtags as the ones she used while a candidate. So it seems to us that Reisch used the account in the main to promote herself and position herself for more electoral success down the road—a conclusion supported by the campaign-related tweet that led to this litigation.

We acknowledge that she occasionally used the account to provide updates on where certain bills were in the legislative process or the effect certain recently enacted laws had had on the state. But tweets like these are fully consistent with Reisch using the account to tout her record because they show voters that she was actively advancing her legislative agenda and fulfilling campaign promises. They also revealed where she stood on relevant political issues. In sum, her post-election use of the account is too similar to her pre-election use to suggest that it had morphed into something altogether different.

Reisch's account is fundamentally different from the accounts at issue in Trump and Davison. For one thing, official governmental activity was conducted on those accounts, whether it was President Trump announcing an appointee or conducting foreign affairs, or Chairwoman Randall coordinating her county's response to a blizzard. Even if Reisch's official duties as a representative extend beyond voting or participating in committee meetings and include things like communicating with constituents about legislation, her sporadic engagement in these activities does not overshadow what we believe was quite clearly an effort to emphasize her suitability for public office.

When is Conduct Speech?

United States v. O'Brien (1326-1330) / (598-603)
Texas v. Johnson (1330-1336) / (603-609)
R.A.V. v. City of St. Paul (1337-1342) / (609-614)

Capture Rule and Acquisition by Creation

The Capture Rule: Oil and Gas

Capture and Other "Fugitive" Resources: 43-46

Acquisition by Creation

Acquisition by creation, 132-133
International News Service v. Associated Press, 133-137
Notes, 137-140
Copyright, 140-141
Patent, 161
Trademarks, 198-200

Yesterday, I queried whether the Supreme Court was finished with emergency COVID-19 Free Exercise Clause litigation. Soon enough, we will see. The South Bay United Pentecostal Church has returned to the Supreme Court with an emergency application for a writ of injunctive relief. South Bay's biggest obstacle will be California's changed policy. Is the controversy moot? Or will the game of whack-a-mole continue? South Bay has filed a supplemental letter addressing the new policy. Circuit Justice Kagan has requested a response by Friday. Stay tuned.

Prior to the inauguration, I wrote about the prospects of Democratic-appointed federal judges taking senior status. Now, barely a week after the inauguration, the first batch of senior status notifications have trickled in.

Ninety minutes after the inauguration, Judge Victoria Roberts (EDMI) wrote to President Biden that she will take senior status on February 24. According to my calculations, Judge Roberts became eligible for senior status in 2016 when she turned 65 and accumulated 18 years of service. That date was probably too late for President Obama to replace her. But now, the Clinton appointee can be replaced by President Biden.

On January 21, Judge William Alsup (NDCA) wrote to President Biden. He said "I feel it is time for me to 'go senior.'" And he assumed senior status immediately. Why is now the right time? According to my calculations, Judge Alsup became eligible for senior status in 2012 when he turned 67, and accumulated 13 years of service. Judge Alsup hung on for the entirety of the second Obama administration, and all of the Trump administration. (I was very critical of Judge Alsup's DACA ruling back in 2018).

I'm sure there are others. I'm keeping track for a forthcoming paper.

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Hurricane preparedness, getting rid of a body, and illegal sideshows.

California Law Limiting Private Employers' Restriction on Employee Speech

applied by a federal court in a case involving Juul Labs.

Today in Supreme Court History: January 29, 1923

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More Judges Take Senior Status In The Week After Inauguration

We are seeing more evidence of strategic timing.

Court Allows U.S. Prosecution for American's North Korea Speech About Cryptocurrency

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i/s/h/a

What does this legal acronym mean?

Impeaching Officials While They're in Office, but Trying Them After They Leave

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Legislator Free to Block Users from Her Campaign-Focused Twitter Account

So the Eighth Circuit held yesterday, distinguishing the @RealDonaldTrump case on the grounds that the Trump account was used for much more official activity.

Today in Supreme Court History: January 28, 1916

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What we know of the planned commission's membership makes it unlikely it will recommend court-packing. But that doesn't mean the issue will simply go away.

Classes #4: "When is Conduct Speech?" and "Capture Rule and Acquisition by Creation"

O'Brien, Texas v. Johnson, R.A.V. v. St. Paul, INS v. AP

When is Conduct Speech?

Capture Rule and Acquisition by Creation

The Capture Rule: Oil and Gas

Acquisition by Creation

South Bay Returns to the Supreme Court

The church will have to deal with California's revised stay-at-home order.

Democratic-Appointed Judges Begin to Take Senior Status

The letters to the President began on January 20, 2021.

When is Conduct Speech?

Capture Rule and Acquisition by Creation

The Capture Rule: Oil and Gas

Acquisition by Creation

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