The Volokh Conspiracy

Yesterday's Georgia state indictment against Donald Trump for his efforts to overturn the 2020 election in that state includes charges similar to those in the recent federal indictment filed by special counsel Jack Smith. But it also breaks considerable new ground. To the extent that the charges deal with similar issues, Georgia is—in my view—well-justified in prosecuting Trump, for much the same reasons as the federal government is. But some of the charges raise technical legal issues I prefer to leave to commentators with greater relevant expertise.

Some of the charges against Trump and 18 other defendants in the Georgia indictment are similar to recently filed federal charges. For example, both feature charges of fraud related to Trump's scheme to replace Georgia's electors with slates of fake electors, and pressure state officials into falsifying vote counts. While some technical details diverge, there legal case against Trump on these issues is strong (see my discussion of the relevant federal issues here and here), and there is a strong rationale for prosecution based on the need for retribution and deterrence.

As in the federal case, the relevant Georgia fraud statutes (which focus on defrauding the government and election fraud) are not confined to property crimes. And, as in that case, Trump is not being prosecuted merely for claiming he won the election or that fraud occurred. Rather, the indictment details a long list of schemes to substitute fake electors for real ones and otherwise coerce and defraud state officials.

Some might wonder why state officials can prosecute Trump for much the same as crimes as the feds. After all, the Double Jeopardy Clause of the Fifth Amendment bars defendants from being twice "put in jeopardy" for "the same offence." Part of the answer is that Trump has not yet been tried (much less convicted or acquitted) on the federal charges.

But in addition, the Supreme Court has long held that there is a "dual-sovereignty" exception to the double jeopardy clause—a rule recently reaffirmed by the Court in its 7-2 decision in Gamble v. United States (2019). Because states and the federal government are separate sovereigns, the Court reasoned, they are permitted to each try the same person for what is substantively the same offense.

In my view, there is a lot of merit to Justice Ruth Bader Ginsburg's and Neil Gorsuch's dissenting opinions, in Gamble, arguing that the dual-sovereignty doctrine is wrong. But the Court is unlikely to overturn that rule anytime soon. Thus, Georgia and the feds can both prosecute Trump (and perhaps others) for similar election-related offenses. If Trump gets acquitted in one proceeding, that doesn't give him a pass on the other. Conservatives and others who don't like that can blame the Supreme Court.

Along with these similarities to the federal charges, there are also key differences. Many of the counts against Trump and other defendants are under Georgia's state Racketeer Influenced and Corrupt Organizations Act (RICO). I am sure there are lots of newly minted RICO experts commenting away on Twitter and elsewhere. But I'm not going to pretend to be one of them, and so will have to leave this issue to others.

There are a number of other Georgia-specific charges, as well, such as claims that some of Trump's co-conspirators illegally accessed state election data. I will leave that to relevant experts, as well.

Perhaps the biggest difference between the federal and Georgia indictments is that the latter features 19 defendants, while the former is limited to Trump (though the feds may well file charges against others in separate proceedings).

Some of the Georgia co-defendants are the same people as Trump's unindicted co-conspirators from the federal indictment, most notably Rudy Giuliani, Jeffrey Clark, John Eastman, and Sidney Powell. Others are lesser-known figures, including some whose involvement in election skullduggery appears to have been limited to Georgia. The inclusion of 19 total defendants is likely to make for a longer and more complicated trial and appellate process. Jack Smith may have chosen to charge Trump separately to avoid such problems.

If time permits, I may have more to say about some of Trump's co-defendants in future posts. One of them—Eastman—is a person I knew for many years in his capacity as a law professor; but I should emphasize (in case prosecutors are reading this!) that I have no inside knowledge of his involvement in Trump's schemes to overturn the election.

Experts are divided on whether Trump can potentially force the removal of the Georgia case to federal court. If he can do so, he might potentially get a more favorable jury pool, and also possibly claim immunity to some or all of the charges on the grounds that he was just engaged in his official duty. I highly doubt the latter gambit will work, even if the former succeeds. Trump was pretty obviously acting to advance his private interests as a candidate, not discharge his official responsibilities. But this too is an issue best left to those with greater expertise.

Finally, it's worth noting that the Georgia charges cannot be pardoned by the president, as they are state offenses, not federal ones. Georgia Governor Brian Kemp cannot pardon them either, as the pardon power in that state is controlled by an independent board, not the governor. And even the board cannot issue a pardon until after at least five years have passed since the applicant completed his sentence.

In sum, the Georgia case against Trump deepens his legal jeopardy, and at least some of the charges seem compelling. On others, I must defer to the assessment of commentators with greater expertise.

Judge Jeffrey M. Brown's opinion in James E. Arnold & Associates, LPA v. Croce (Ohio Ct. Com. Pl. Franklin County, July 12), notes that the professor had given his then-lawyers a promissory note, secured by the house. Retraction Watch reports:

A law firm that holds a mortgage on the house of Carlo Croce, a cancer researcher at The Ohio State University, may foreclose on the property, a judge has ruled.

Croce hired James E. Arnold and Associates to represent him in a libel case against the New York Times and a defamation case against David Sanders, a professor of biological sciences at Purdue University who became something of a public nemesis for the Ohio scientist after pointing out problems in Croce's published work. Croce also needed representation for Ohio State's research misconduct investigation, and a suit attempting to stop the university from removing him as chair of the department of cancer biology and genetics.

Croce lost each case. Ohio State's investigation found problems with how he managed his lab that did not amount to research misconduct.

Arnold and Associates was the second firm Croce hired, after his original lawyers at Kegler Brown Hill & Ritter dropped his cases and sued him because he wasn't paying his bills. Last December, a judge ordered Croce to pay Kegler Brown nearly $1.1 million. To enforce the judgment, Ohio State has been garnishing his wages, and Kegler Brown has filed a motion for the court to allow Sotheby's to handle the sale of pieces from Croce's collection of Renaissance artwork, which the county sheriff seized….

See also this 2021 post on the Sixth Circuit opinion rejecting Croce's libel claim. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The article is here; the Introduction:

Is the output of generative AI entitled to First Amendment protection? We're inclined to say yes. Even though current AI programs are of course not people and do not themselves have constitutional rights, their speech may potentially be protected because of the rights of the programs' creators. But beyond that, and likely more significantly, AI programs' speech should be protected because of the rights of their users—both the users' rights to listen and their rights to speak. In this short Article, we sketch the outlines of this analysis.

From Doe v. N.Y. City Dep't of Ed., decided today by Judge Mary Kay Vyskocil (S.D.N.Y.):

This is an employment discrimination case. Plaintiff has worked for the DOE since 2012. Plaintiff alleges that she is "psychologically disabled" and was subjected to discrimination, harassment, and unlawful retaliation at work….

[Plaintiff] contends that the "primary purpose" of the motion is to protect her minor child, who has "learning disabilities and ongoing mental health issues." Specifically, Plaintiff "seeks to shield her minor child from any discriminatory harm that may be caused by a record of her mental health issues when she was a minor," particularly given her child's "interest in pursuing a career in the military." Plaintiff also expresses concern that, if she litigates this case using her real name, Defendants will further retaliate against her. Finally, Plaintiff contends that making her name public would put her "future employment prospects … at immense risk" because she fears developing a "reputation associated with suing her employer." …

Afghan evacuees arrive at Dulles International Airport in Virginia — Afghan evacuees arrive at Dulles International Airport in September 2021 (Rod Lamkey - CNP/Polaris/Newscom)

Today is the second anniversary of the fall of Kabul and the loss of Afghanistan to the oppressive Taliban regime. In the aftermath of the fall, the US took in thousands of Afghans fleeing the brutal new government, including many who had fought on the side of the US or worked to promote human rights. Unfortunately, to this day, the US government still has not granted permanent residency to Afghans who entered the US based on executive "parole." As a result, most of the Afghans remain in legal limbo, making it difficult for them to fully integrate into American society. That's bad for both them and the US economy.

Congress can easily fix the problem by passing an Afghan Adjustment Act—legislation that would grant Afghan parolees permanent residency and work permits. But, so far, they haven't found the political will.

Washington Post columnist Catherine Rampell, one of the best media commentators on immigration issues, summarizes this unfortunate state of affairs:

Mahnaz Akbari was supposed to be one of the lucky ones.

The former commander of an Afghan military all-female special ops team, Akbari was among the 77,000 U.S. allies successfully evacuated to the United States when the Taliban retook her country. An additional 200,000 or so are trapped abroad, awaiting processing by the U.S. government.

But her place in the country that took her in is precarious.

"I'm in a legal limbo," she says. That's because, almost two years after the United States withdrew its last forces from Afghanistan, Congress has failed to deliver on the promises made to our allies in America's longest war…..

The U.S. government pledged to protect those who aided our military and diplomatic interests. But it never fully developed the legal and administrative capacity to do so. Most of those we hastily evacuated from Afghanistan ended up coming here through a sort of short-term workaround measure, full of temporary and uncertain extensions, called "humanitarian parole…."

Akbari remains immensely proud of her service to her country. She is eager to resume serving by joining the U.S. military but cannot do so until she gets a green card.

Which, for the foreseeable future, is unavailable.

Like many other Afghans who entered through parole, she has applied for asylum — a separate, convoluted and notoriously backlogged process. It's supposed to be expedited for Afghan parolees, but only a tiny sliver of Afghan applicants have been successfully adjudicated, with the rest stuck in what could be a years-long queue…..

Akbari fears that, by the time her asylum application is settled and she subsequently becomes eligible to apply for a green card, she will be too old to serve in the U.S. military.

In the meantime, she says she's grateful for opportunities she has been granted in the United States, including many facilitated by U.S. service members she once worked alongside. But she finds it difficult to plan a future, because many prospective employers are reluctant to hire someone whose ongoing work eligibility remains uncertain.

The Biden Administration has eased the situation somewhat by giving Afghan parolees the opportunity to apply for a two year extension to their initial two year parole period. But this is just a temporary reprieve. And people like Akbari remain barred from opportunities (including military service) that are only open to permanent residents. Moreover, like the initial grant of parole, the extension rests entirely on executive discretion. What Caesar giveth, he (or a successor) can taketh away.

Passing an adjustment act can fix these problems. Historically, Congress has in fact enacted such legislation for other parolees fleeing war and oppression, including Hungarians and Cubans fleeing communism, and—most closely analogous to the Afghan situation—Vietnamese fleeing the fall of South Vietnam. It should do the same thing here.

In an August 2021 post, I went over the many reasons why the US should grant refuge to Afghans fleeing the Taliban. They include general moral considerations against barring refugees fleeing violence and oppression, the unusually heinous nature of the oppression Afghans face under Taliban rule (worse than most "ordinary" dictatorships), national security interests, and the US government's significant share of responsibility for the Taliban's return to power (both the Trump and Biden administrations deserve hefty shares of blame).

I won't go over these points again here. I will merely note that all of them justify granting permanent, not just temporary refuge. The oppression the parolees face if forced to return is just as bad now as two years ago. And granting permanent refuge will serve US national security and foreign policy interests better than a mere temporary reprieve. People who aid US forces in war and help promote human rights in alliance with us should know that we will give them permanent refuge, if needed, not just a brief stay of execution.

As I have previously pointed out, many of the same considerations also justify granting permanent residency to Cuban, Venezuelan, Ukrainian, and other parolees. In addition to the Afghan Adjustment Act, Congress is also now considering a Ukrainian Adjustment Act and a Venezuelan Adjustment Act.

All should be enacted. But if political constraints allow passage of some but not others, that's still much better than nothing. As always, the best should not be the enemy of the good.

Today the U.S. Court of Appeals for the D.C. Circuit revived a lawsuit agaisnt the District of Columbia for selective enforcement of the district's defacement ordinance in violation of the First Amendment. Judge Rao wrote for the court in Frederick Douglass Foundation v. District of Columbia, joined by Judge Childs, reversing the district court's dismissal of the Foundation's First Amendment claim, but affirming dismissal of an Equal Protection claim. Judge Wilkins concurred in the judgment.

Judge Rao's opinion for the court summarizes the case and decision as follows:

The First Amendment prohibits government discrimination on the basis of viewpoint. "To permit one side … to have a monopoly in expressing its views … is the antithesis of constitutional guarantees." City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm'n, 429 U.S. 167, 175–76 (1976). The protection for freedom of speech applies not only to legislation, but also to enforcement of the laws. This case concerns a constitutional challenge to the selective enforcement of the District of Columbia's defacement ordinance against some viewpoints but not others.

In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim "Black Lives Matter." Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District's defacement ordinance, yet none of the protesters were arrested. During the same summer, District police officers arrested two pro-life advocates in a smaller protest for chalking "Black Pre-Born Lives Matter" on a public sidewalk.

The organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America (collectively "the Foundation"), sued. The Foundation alleged violations of the First and Fifth Amendments, conceding the defacement ordinance was facially constitutional, but arguing the District's one-sided enforcement of the ordinance was not. The district court dismissed the complaint. Concluding the First Amendment and equal protection claims were essentially the same, the district court held the Foundation had failed to adequately allege discriminatory intent, which the court considered a necessary element of both claims.

We affirm the district court's dismissal of the Foundation's equal protection claim because the Foundation has not plausibly alleged invidious discrimination by District officials. Discriminatory motive, however, is not an element of a First Amendment free speech selective enforcement claim. The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government's motive. We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. We therefore reverse the dismissal of the Foundation's First Amendment claim and remand for further proceedings.

Judge Rao notes that selective enforcement claims are hard to substantiate, but that the Foundation plausibly alleged such selective enforcement here.

Selective enforcement claims must clear a high hurdle. Because the lawful exercise of prosecutorial discretion does not violate the Constitution, disparate enforcement of a neutral ordinance based on viewpoint is unlawful only when the prosecutorial factors are similar, and "unlawful favoritism" remains the predominant explanation for the government's targets. . . . The Foundation has plausibly alleged that when chalking the "Black Pre-Born Lives Matter" message, its advocates were similarly situated to advocates who painted and marked the "Black Lives Matter" message. . . .

Viewpoint discrimination, whether by legislative enactment or executive action, violates the First Amendment. "Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking." Police Dep't of Chi. v. Mosley, 408 U.S. 92, 96 (1972). We hold the Foundation has plausibly alleged the elements of a free speech selective enforcement claim. We may reasonably infer from the Foundation's complaint, first, that its members were similarly situated to other protesters who were not arrested and, second, that the District engaged in viewpoint discrimination by enforcing the defacement ordinance against individuals chalking "Black Pre-Born Lives Matter" but not against individuals painting and chalking "Black Lives Matter."

And from her concluding paragraphs:

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others. During the summer of 2020, the District arrested individuals chalking "Black Pre-Born Lives Matter" on the sidewalk, while making no arrests against the many individuals marking "Black Lives Matter" on sidewalks, streets, and other property. The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.

This is a significant case.

From Ford v. Norton, decided Friday by Judge Noel Hillman (D.N.J.):

Plaintiff …, presently incarcerated in the Hudson County Jail in Kearny, New Jersey, filed a Complaint against several police officers and Cumberland County prosecutors. On January 5, 2023, the Court dismissed the Complaint without prejudice in accordance with 28 U.S.C. § 1915(e)(2) because it failed to state a claim. The Court denied leave to amend as futile because Plaintiff's illegal search and false arrest claims were barred by the statute of limitations and his malicious prosecution claims were premature.

On July 10, 2023, the Court received a letter from Plaintiff that asked the Court to "take the case down entirely" or to change his name to a pseudonym. He states the complaint concerned his activity as a confidential informant and put him "in extreme danger." The Clerk docketed the letter as a motion to modify or correct the Court's order and filed it under temporary seal pending the Court's review. Plaintiff later filed a motion to seal raising the same concerns as his prior letter.

"It is well-settled that there exists, in both criminal and civil cases, a common law public right of access to judicial proceedings and records." "The public's right of access extends beyond simply the ability to attend open court proceedings. Rather, it envisions a pervasive common law right to inspect and copy public records and documents, including judicial records and documents." However, "[t]he public's common law right to access judicial records is not absolute. Instead, when the right exists, there is a strong presumption that the public may view the records."

8/15/1938: Justice Stephen Breyer's Birthday.

Former President Donald Trump, shrugging, at the June 2023 Faith and Freedom Coalition conference. — (Brian Cahn/ZUMAPRESS/Newscom)

In a piece at the Lawfare website, Harvard law Prof. Jack Goldsmith responds to critics of his New York Times article arguing that the dangers of prosecuting Donald Trump for trying to overturn the 2020 election may exceed the benefits. One of the critiques he addresses is my own. In this post, I will offer a rejoinder. But note that both Goldsmith's analysis and mine are focused on the federal indictment of Trump filed by special counsel Jack Smith. We do not address the more recent Georgia statement indictment.

Here's the part of Goldsmith's response that addresses my critique:

I agree that "letting Trump off the hook" might be far worse than prosecuting him. My main point is that we cannot now know, and the answer is not obvious, at least to me, especially in light of our broken politics, the novelties and uncertainties in the legal case against Trump, the weight of past Justice Department mistakes and excesses in investigating Trump, and (to add a point not in my piece) Eric Posner's reminder that "trials in which legal proceedings are used to remove political opponents from power or prevent them from taking it … have a long and storied history of backfiring on their perpetrators." If Trump is convicted, and the trial is and seems fair, and the Supreme Court upholds its validity, Smith may well be a triumphant savior of American democracy, especially if Trump self-destructs in ways that diminish him politically. But what if only a few of these things happen, or none of them?

Somin says, for example, that if Trump is not prosecuted, future presidents will be emboldened to repeat his experiment. Maybe, but maybe not, in light of the financial and reputational costs Trump has suffered. The larger point, however, is that the prosecution might go off the rails in ways that make things worse. Somin's argument appears to assume that conviction is assured. What if Trump is acquitted (including via jury nullification), or his conviction is thrown out? What if it becomes clear that what he did was not unlawful, as may well happen? What if Trump wins the presidential election and perceived overkill by the Biden Justice Department is seen as a contributing cause? These outcomes might well embolden a future Trump more, perhaps much more, than non-prosecution. Very hard to say. In assessing the upsides and downsides of the prosecution, one must think in terms of all plausible futures and counterfactuals. Yes, as I said in the opening, the future may be such that non-prosecution would be worse, perhaps much worse, than prosecution. But the opposite might be true as well. We cannot be confident now.

I appreciate Goldsmith's thoughtful response, and am flattered he devotes more space to my piece than any of the others addressed. But I remain unconvinced that the risks of prosecution outweigh the benefits, or even that this is a close question.

Goldsmith is right that Trump could potentially get away with his crimes and be emboldened to further wrongdoing, even if he gets prosecuted (e.g.—he might be acquitted). But if he's not prosecuted at all, that possibility becomes a virtual certainty.

I do not, in fact, believe conviction is certain. But I do think there is a high likelihood of it, given the strength and seriousness of the charges against Trump. I discussed some of the reasons for that legal assessment here and here. I see little chance that a conviction would be reversed, given that the prosecution's position on most relevant legal issues is backed by longstanding Supreme Court precedent, and the Court has a strong presumption (recently reaffirmed) against overturning statutory precedent.

The risk of jury nullification is harder to gauge. But I think it, too, is relatively modest, given that strong partisans are likely to be removed for cause from the jury pool and jurors generally do a better job of controlling bias and evaluating issues fairly than voters (admitted a low standard of comparison). Moreover, the case will probably be tried in Washington, DC, where the jury pool is unlikely to include many hard-core Trump supporters.

If the chance of getting a conviction were very low or nonexistent, that would be a good reason not to prosecute. But that's pretty obviously not the situation here.

Goldsmith suggests future politicians might not be emboldened to repeat Trump's experiment, if he escapes prosecution, because of the "the financial and reputational costs Trump has suffered." It seems to me any such costs are greatly outweighed by the ways in which his Big Lie has enabled Trump to remain the lead contender for the GOP nomination, and avoid the kind of political repudiation usually suffered by presidents who lose their reelection bids.

I'm also skeptical the prosecution will somehow catapult Trump to victory in the 2024 election. It's possible the various indictments helped in him the GOP primary. But his lead over his rivals there is so large (consistently at 20-30 points or more over the last several months) that any marginal boost from this indictment is unlikely to be decisive. By contrast, survey data consistently show that indictments and conviction are likely to harm him with general election voters. If the election is close, even a small shift against Trump could be significant.

I'm not convinced that electoral calculations should play any significant role in decisions to indict and prosecute Trump. Ultimately, they should be guided by the severity of the crime, and considerations of retribution and deterrence. But for those who disagree, the available evidence suggests prosecution is more likely to harm Trump's electoral prospects than help him.

Finally, I agree we should consider "all plausible futures and counterfactuals." But there should be a heavy presumption against giving a president guaranteed impunity for the heinous crime of trying to use force and fraud to stay in power after losing an election. The scenarios and risks posited by Goldsmith are nowhere near sufficient to overcome that presumption. Indeed, they are much less grave than those on the other side of the ledger.

An encouraging sign for the future of American higher education has been the emergence of local faculty groups organizing themselves to advance free speech principles at their particular institution. The latest is the Cornell Free Speech Alliance at Cornell University.

Of particular interest is their new report on policy recommendations for universities. The key points can be found here. The full report is here.

Although motivated by the specific situation at Cornell, the policy recommendations are not specific to that university. The report makes for useful reading and lays out a valuable agenda for faculty across the country.

The U.S. Court of Appeals for the Second Circuit just issued Farhane v. United States, an important case in which the appellant argued that he received ineffective assistance of counsel because his attorney did not warn him of the risks of denaturalization and potential subsequent deportation arising from his guilty plea. The Second Circuit affirmed SDNY's denial of the appellant's habeas petition to vacate his guilty plea, conviction, and sentence.

Both Judge Walker's majority opinion and Judge Carney's dissent cite to my denaturalization scholarship with Cassandra Burke Robertson. The two opinions both cite to our article "(Un)Civil Denaturalization" (NYU Law Review), and the dissent additionally cites to our article "Inalienable Citizenship" (North Carolina Law Review).

We are staying tuned as to whether the Supreme Court ends up granting cert.

The Texas nonconsensual pornography statute (chapter 98B of the Texas Civil Practice & Remedies Code) provides:

A defendant is liable … to a person depicted in intimate visual material for damages arising from the disclosure of the material if:

(1) the defendant discloses the intimate visual material without the effective consent of the depicted person and with the intent to harm that person;

(2) at the time of the disclosure, the defendant knows or has reason to believe that the intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;

(3) the disclosure of the intimate visual material causes harm to the depicted person; and

(4) the disclosure of the intimate visual material reveals the identity of the depicted person in any manner ….

{"Intimate visual material" means visual material that depicts a person: (A) with the person's intimate parts exposed; or (B) engaged in sexual conduct.}

{This chapter shall be liberally construed and applied to promote its underlying purpose to protect persons from, and provide adequate remedies to victims of, the disclosure or promotion of intimate visual material.}

The statute provides for damages liability and an injunction, and it has no exception for disclosure of such material in court; but the Texas Court of Appeals (San Antonio) held Wednesday (in Doe v. Cruz, written by Justice Lori I. Valenzuela, joined by Justices Luz Elena D. Chapa and Beth Watkins) that the general Texas judicial-proceedings privilege applies to the statute. (The logic of the opinion suggests that similar privilege rules would apply to similar conduct, such as disclosing the material to the police and the like.) From the opinion:

From Smiley v. Jenner, decided by Judge James Patrick Hanlon (S.D. Ind.) on July 28, but just posted on Westlaw:

A new Indiana law prohibits public schools and their employees from providing instruction to students in prekindergarten through grade 3 on human sexuality. Kayla Smiley—a teacher who works for the Indianapolis Public Schools—alleges that the new law violates the United States Constitution because it (1) infringes on her right to free speech and (2) is so vague that she does not know what speech and actions may violate the law. She therefore asks the Court to enter a preliminary injunction preventing enforcement of the new law….

Under HEA 1608, "[a] school, an employee or staff member of a school, or a third party vendor used by a school to provide instruction may not provide any instruction to a student in prekindergarten through grade 3 on human sexuality." But "[n]othing" in HEA 1608 "may be construed to prevent a school employee or a school staff member from responding to a question from a student regarding" human sexuality.

Kayla Smiley is a teacher who will be subject to HEA 1608 when she begins teaching an Indianapolis Public School class of first through third graders on July 31, 2023. She brought this action against the Indiana Secretary of Education, Dr. Katie Jenner, as head of the department overseeing teacher licensing. Ms. Smiley is concerned that she may unwittingly violate HEA 1608, thereby jeopardizing her teaching license, because she has "no idea what is encompassed within the term 'human sexuality,'" and does "not understand what is meant by the statute's term 'instruction.'" For example, she does not know if having books in her classroom library that "touch on LGBTQ themes" and "discuss and represent different family relationships and structures" violates HEA 1608. She contends that she would also "have to censor" herself by (1) not carrying her water bottle with its "message about tolerance of persons who are LGBTQ," (2) "remov[ing] the LGBTQ-supportive bumper stickers" that will be on her car, and (3) refraining from talking with students about "using the word 'gay' pejoratively.'"

The court rejected the request for a preliminary injunction, concluding that Smiley was unlikely to succeed on the merits:

8/14/1935: President Roosevelt signs into law the Social Security Act of 1935. The Supreme Court upheld the constitutionality of this law in Helvering v. Davis (1937).

8/13/1788: Federalist No. 85 is published by Alexander Hamilton.

I'm delighted to be able to pass along this response by Prof. Michael McConnell (Stanford Law School) to a couple of items that were posted on the blog in the last few days:

There is a recent flurry of interest in Section 3 of the Fourteenth Amendment, which bars any person who has "engaged in" an "insurrection or rebellion" (after having previously taken an oath to support the Constitution) from holding state or federal office. This provision has played no significant role in American governance since 1872 and was regarded by many scholars as moribund. The revival of interest in Section 3 is sparked by scholarship by several scholars with impeccable conservative credentials, including my friends Will Baude, Michael Paulsen, and Steve Calabresi. See and Their work advocates a "broad, sweeping" interpretation of the disqualification provision, and claims that under Section 3, Donald Trump is ineligible to run for a second term, without any further process, hearings, or adjudications. Already it has drawn the attention of the New York Times, and presumably will fuel efforts to keep Trump off the ballot.

I have no truck with Trump, for whom I have low regard. But in the haste to disqualify Trump, we should be wary of too loose an interpretation of Section 3.

We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555 (1964). The broader and more nebulous the definition of engaging in insurrection, and the fewer the procedural safeguards, the greater the danger.

The article is here; here is the Abstract:

Generative AI, in particular text-based "foundation models" (large models trained on a huge variety of information including the internet), can generate speech that could be problematic under a wide range of liability regimes. Machine learning practitioners regularly "red-team" models to identify and mitigate such problematic speech: from "hallucinations" falsely accusing people of serious misconduct to recipes for constructing an atomic bomb. A key question is whether these red-teamed behaviors actually present any liability risk for model creators and deployers under U.S. law, incentivizing investments in safety mechanisms.

We examine three liability regimes, tying them to common examples of red-teamed model behaviors: defamation, speech integral to criminal conduct, and wrongful death. We find that any Section 230 immunity analysis or downstream liability analysis is intimately wrapped up in the technical details of algorithm design. And there are many roadblocks to truly finding models (and their associated parties) liable for generated speech.

We argue that AI should not be categorically immune from liability in these scenarios and that as courts grapple with the already fine-grained complexities of platform algorithms, the technical details of generative AI loom above with thornier questions. Courts and policymakers should think carefully about what technical design incentives they create as they evaluate these issues.

And here's the Introduction:

The Volokh Conspiracy

The Georgia Case Against Trump

Trump's Georgia indictment has much in common with the most recent federal case against him. But also breaks some new ground.

Plaintiff Professor's Losing Libel Lawsuit May Lead to His Former Lawyers Foreclosing on His Home

(Part of the fees also stemmed from defending against Ohio State's investigating his alleged research misconduct.)

Journal of Free Speech Law: "Freedom of Speech and AI Output," by Profs. Mark Lemley and Peter Henderson and Me

Just published, closing out our symposium on Artificial Intelligence and Speech.

No Pseudonymity in Psychological Disability Employment Discrimination Lawsuit

Time to Pass the Afghan Adjustment Act

Congress should grant permanent residency to Afghans who came to the US fleeing the fall of their country to the brutal Taliban regime.

D.C. Circuit Revives Viewpoint Discrimination Suit Against District of Columbia

The District allowed "Black Lives Matter" protestors to violate the city's defacement ordiance, but enforced the law against groups with a different political message.

Can Court Retroactively Seal or Pseudonymize Case, After Items Have Been in the Public Record for Months or Years?

Today in Supreme Court History: August 15, 1938

Jack Goldsmith Responds to Critics on the Dangers of Prosecuting (or not Prosecuting) Trump for Trying to Overturn the 2020 Election

I was one of the critics he responded to, and in this post I offer a rejoinder.

Monday Open Thread

What's on your mind?

Cornell Free Speech Alliance Launches

Second Circuit Cites Scholarship in Both Majority and Dissenting Opinions of Farhane v. United States

My coauthored denaturalization scholarship makes appearances on both sides of the aisle

Texas Revenge Porn Statute Doesn't Apply to Evidence Introduced in Court

Court Refuses to Block Indiana Law That Bans "Instruction … on Human Sexuality" to Public K-to-3rd Students

Today in Supreme Court History: August 14, 1935

Today in Supreme Court History: August 13, 1788

Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump

"We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic."

Journal of Free Speech Law: "Where's the Liability in Harmful AI Speech?," by …

Profs. Peter Henderson, Tatsunori Hashimoto, and Mark Lemley, just published in our symposium on Artificial Intelligence and Speech; more articles from the symposium coming in the next few days.

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