Free Minds & Free Markets


Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

My Upcoming Speaking Engagements

My upcoming public speaking engagements for the next few months. Covering topics like political ignorance, federalism, immigration, and others.

Here are my upcoming speaking engagements for the next few months. All are free and open to the public unless otherwise noted.

January 25, 7:30 PM, Hampden Sydney College, Bortz Lecture Hall, Hampden Sydney, VA: "Democracy and Political Ignorance: Why Smaller Government is Smarter." Tak based on my book of the same name. Discounted copies of the book will be available for sale at a book signing afterwards. More information on the event here. Sponsored by the Center for the Study of Political Economy.

February 1, 6:30 PM (tentative time) Federalist Society Lawyers Division Chapter, Portland, OR: Topic TBA. This event is likely to be open only to Federalist Society members and guests.

February 2, 12:05-1:20 PM, Willamette University College of Law, Salem, OR, Symposium on "US v. Oregon: Examining the Role of Federalism under the Trump Administration": "Why Progressives Should Help Make Constitutional Federalism Great Again" (keynote speech). The schedule for the entire symposium is available here.

February 12, 12:10-1:10 PM, Columbia Law School, New York, NY: "The Free Market Conservative Case for Open Borders Immigration." Sponsored by the Columbia Law School Federalist Society.

February 13, 12:30-2:30 PM, Fordham University School of Law, New York, NY: "Why Trump's Travel Ban is Unconstitutional" (debate with Ilya Shapiro of the Cato Institute, who will defend the legality of the travel ban). Sponsored by the Fordham Law School Federalist Society. This will be the second-ever Ilya vs. Ilya debate. For a video of the first one (sponsored by the Reason Foundation), see here. Though the other Ilya and I agree on many things, we often differ on constitutional issues related to immigration. Sponsored by the Fordham Federalist Society.

February 15, 1:30-3:30 PM (followed by reception), Law Department, Hitotsubashi University, Tokyo, Japan: "Free to Move: Foot Voting and Political Freedom" (based on my next book, which I am currently working on) There will be comments by three Japanese scholars, followed by a brief reply from me, and questions from the audience (proceedings will be in English, since sadly I do not speak Japanese). This event may be primarily for students and faculty at the university, though arrangements could potentially be made for other interested attendees.

February 27, 11:15-12:30 PM, New York University School of Law, New York, NY, panel on "The Free Movement of Labor," Symposium on "Freedom vs. Fairness: The Tension Between Free Market and Populist Ideals on Labor": The other participants in the panel will be Kit Johnson (University of North Dakota), Michael LeRoy (University of Illinois), and Lori A. Nessel (Seton Hall University). Professor Mario Rizzo of NYU will moderate. Sponsored by the NYU Journal of Law and Liberty. For a complete schedule of the symposium, see here.

March 1, 9:30-11 AM, Hofstra University, New York, NY, Spring 2018 Donald Sutherland Lecture: "Democracy and Political Ignorance: Why Smaller Government is Smarter." Invited lecture based on my book of the same name. Discounted signed copies of the book are likely to be available for sale.

March 5, exact time TBA: George Mason University, Center for Narrative and Conflict Resolution, Founder's Hall: Arlington, VA, Conference on "Public Journalism and Deliberative Democracy: Exploring the Role of Narrative." My talk will focus on "Political Ignorance and Deliberative Democracy."

We Have Opinions (from SCOTUS)

The Supreme Court issues three opinions, for a grand total of four so far this term.

The relative dearth of Supreme Court opinions this term was beginning to worry some court watchers. As I noted here, Adam Feldman's research indicates the Court was issuing opinions at its slowest pace in over 100 years. Whether spurred by the critical commentary or (more likely) because opinions were simply ready to issue, the Court handed down decisions in three cases yesterday, lessening the drought.

The Court was unanimous in National Association of Manufacturers v. Department of Defense. This is the so-called "WOTUS" case, concerning legal challenges to the Obama Administration's regulation re-defining "Waters of the United States" under the Clean Water Act. The WOTUS rule was controversial because the Obama Administration adopted an expansive interpretation extending federal regulatory jurisdiction quite broadly. This decision was not about the lawfulness of the WOTUS rule, however, but about whether challenges to it should be filed in circuit or district court.

In a unanimous opinion by Justice Sotomayor, the Court agreed with NAM and the other petitioners that WOTUS challenges should be filed in district court. This is no surprise. This is an outcome amply supported by the relevant statutory text and that was clearly indicated at oral argument. What this means is that pending challenges to the Obama Adminstration's rule -- and expected challenges to the Trump Administration's attempt to revoke it -- will proceed in district court.

In a second opinion, also unanimous in the judgment, the Court held that police officers had probable cause to arrest partygoers because the "totality of the circumstances" sugggested the partygoers lacked permission to be in the house. Justice Thomas wrote the opinion in District of Columbia v. Wesby. Justice Sotomayor wrote an opinion concurring in part and concurring in the judgment, and Justice Ginsburg concurred in the judgment in part.

The unanimity did not continue, however. In Artis v. District of Columbia the Court split 5-4 over the question of what it means to "toll" state law claims under 28 U. S. C. §1367(d). Justice Ginsburg wrote the majority and Justice Gorsuch wrote the dissent. This was not the usual 5-4 opinion, however, as the role of swing justice was played not by Justice Anthony Kennedy but by the Chief Justice, who joined the more liberal justices.

Interestingly enough, the division in Artis was foreshadowed in a recent Chris Geidner article suggesting the Chief Justice has "moderated" his jurisprudence in important respects. If Geidner is correct, this line-up could be a sign of things to come.

The Court also issued order yesterday, and granted certiorari in the Endangered Species Act case I previewed here. Of note, the attorney for the petitioners in that case (Tim Bishop) also argued the WOTUS case.


When (often plausible) claims about substance get recast as (unsound) claims about language.

More than a decade ago, linguist Geoff Pullum (Language Log) coined the terms "linguify" and "linguification":

To linguify a claim about things in the world is to take that claim and construct from it an entirely different claim that makes reference to the words or other linguistic items used to talk about those things, and then use the latter claim in a context where the former would be appropriate.

His example:

A writer named Alexis Long apparently wanted to say that bisexuality was increasingly being seen by mainstream news media as fashionable. But what he actually wrote (in an Australian newsletter for bisexuals) was: "It's difficult to find a piece of writing in the mainstream press which mentions the word 'bisexual' without finding that it is immediately followed by the word 'chic'."

Now here he recognized that the linguification was meant to be jocular -- no-one really thinks that it's hard to find mainstream writing which uses "bisexual" without adding "chic." (I omit the possibility that the author meant "bisexual chick," a phrase that actually seems to have 8 times the Google hits of "bisexual chic.") But it occurs to me that the recent posts about the word "right" (inconceivable, superscript -1, rights vs. powers) as well as about "republic" and "democracy" are actually responses to serious examples of linguification:

  1. People have a plausible claim about a morally significant distinction or principle (e.g., that governmental claims of right are often importantly different from individual claims of right, or that negative rights are often importantly different from positive rights).
  2. But instead of casting these claims as moral, legal, or philosophical claims, or arguing about how certain terms should be defined, they cast those claims as claims about what the words actually mean. They set forth a definition of the word and claim that anyone who departs from the definition is actually misusing the word, or is a postmodernist, or is denying reality.
  3. And these linguified claims are provably wrong, if one understands English words as meaning what actual English speakers have long used them to mean, and if one understands American legal or political terms as meaning what actual American legal or political figures, speaking to the American public, have long used them to mean.
  4. Indeed, to accept those linguified claims, we have to conclude that the linguifiers actually are more authoritative explainers of American legal and political language than are Chief Justice Marshall, Alexander Hamilton, the drafters of the Articles of Confederation, and many more. And while we should always be open to the possibility that even an anonymous commenter has a better argument than Chief Justice Marshall, we should be skeptical of claims that an anonymous commenter is entitled to redefine a word in a way that makes Chief Justice Marshall's usage -- together with the usage of many people both before and after -- "wrong."

Just say no, friends, including friends from the libertarian and conservative movement (in many ways my ideological home, and yet the place where I have seen a disproportionate share of such linguification). Just say no to weakening your possibly valid substantive arguments by recasting then as patently invalid linguistic arguments. Explain what you think is normatively or legally right, and why you think it's right, without claiming authority over the definition of words, authority that you cannot possess.

Did unmasking reform clinch the deal for 702 reauthorization?

Episode 199 of the Cyberlaw Podcast

In this guestless episode, Michael Vatis, Markham Erickson, and Nick Weaver join me to explore the intense jockeying that led to passage of S. 139 and gave section 702 of FISA a new lease on life. The administration team responsible for shepherding the bill did well, weathering the President's tweets, providing a warrant process for backend searches that will likely be used once a year if that, and -- almost without anyone noticing -- pulling the unmasking reform provisions from the bill and substituting an ODNI rule. Why? My guess is that dropping unmasking from the bill was a bargaining chip that made it easier for Dems to vote yea; if so, it worked.

And just in time, as the days after passage brought new whiffs of scandal, from the four-page House Republican memo alleging improprieties in the FBI's application for a FISA wiretap on a Trump campaign hanger-on to two cases in which the FBI and NSA destroyed evidence they were supposed to be preserving. Michael Vatis and I cross sword over whether the FISA abuse memo is worth taking seriously or just partisan flak.

Nick and I delve into the gigabytes of hacked data mislaid by another player in the phone hacking game – Lebanese intelligence. Nick wonders if the data was obtained by EFF or Lookout violating the Computer Fraud and Abuse Act. I suspect it may have been, but that EFF ain't talking because it doesn't want to legitimize such hacking for those whose motives aren't Certified Pure by Civil Society (TM).

The first known death by SWAT-ing has yielded charges; the egregious SWAT-er for hire, SWauTistic, has been charged with involuntary manslaughter. Hard to argue with that.

Scariest news of the week? Electric system malware is getting remarkably sophisticated, and common.

The Microsoft Ireland case will be argued next month, and there are dozens of amici briefs, including one by our own Michael Vatis, who lays out his direct appeal to Justice Gorsuch's property-based view of the fourth amendment.

Matt Green (and Nick Weaver) have some questions for Apple about moving its China iCloud data to a third party Chinese cloud provider. I've got one too. If treating Taiwan as a separate country from China leads to humiliating penalties for Western companies, and it does, has China prohibited Apple from storing Taiwanese and Hong Kong user data outside China?

And, for once on the podcast: a sweet life-long love story, spelled out cryptographically.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to or leave a message at +1 202 862 5785.

Download the 199th Episode (mp3).

Subscribe to The Cyberlaw Podcast here. We are also on iTunes, Pocket Casts, and Google Play (available for Android and Google Chrome)!

Inconceivable Rights: I Do Not Think That Word Means (Just) What You Think It Means

The infection of postmodernism apparently goes way back.

A reader writes, in response to my post on the different meanings of the word "right":

A right is an inherent moral claim the exercise of which does not require anything of another party. It seems that the definitions currently at play are infected with postmodernism.

Here's the problem: Whatever the reader might want the word "right" to be limited to, the word as it is actually used in American legal and political discourse has long extended much more broadly.

[1.] For instance, the word has extended beyond inherent moral rights to include rights that everyone understood as political decisions within a particular political system or a political tradition. Consider, for instance, the Articles of Confederation provision,

The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war.

There is no reason to think that anyone saw this as involving an inherent moral claim.

Were the drafters saying, for instance, that it's immoral for states to determine peace and war? No. Were they saying that it would be immoral for the power to be lodged elsewhere, for instance with the President signing and the Senate ratifying a peace treaty (the system Americans implemented a dozen years later in the U.S. Constitution)? No. They were just setting up a particular political settlement of a particular political decisionmaking authority.

Or consider the Virginia Declaration of Rights of 1776, which provided,

That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty.

No-one viewed the right as an "inherent moral claim"; indeed, when Madison proposed the federal Bill of Rights, he recognized that the right to trial by jury wasn't a "natural right," but was a "positive right[], which may seem to result from the nature of the compact" (referring to the decision of "the people in forming and establishing a plan of government"). Certainly the requirement that there be 12 jurors couldn't be an inherent moral assertion. Rather, the right was a political decision established by English legal traditions.

[2.] Likewise, the word has long extended to include claims on other parties. For instance, the Pennsylvania Declaration of Rights of 1776 provided,

That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto.

A right to protection is a right that does require something of another party (here, the government, or at least the rest of society). Yet it was easy to label it as right (though here, I suspect, one that was being recognized as a solemn political obligation but not a judicially enforceable one). Similarly, from the same document,

But if any man is called into public service; to the prejudice of his private affairs, he has a right to a reasonable compensation.

That is a right to be paid by taxpayers (though there too the expectation was that the right would be secured by political decisions, rather than by judicial ones).

[3.] And we can likewise see "right" used to include judicially enforceable demands on other parties -- and demands to get someone to do things, rather than just demands that others leave you alone. The Contracts Clause, for instance, was seen as securing important private rights, but these were rights to get the government to enforce your contracts. Thus, from Chief Justice Marshall in the Darmouth College case (1819) agreed with the proposition that "state legislatures were forbidden 'to pass any law impairing the obligation of contracts,' that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself." Likewise, later in the opinion Marshall writes about "the rights possessed by the trustees"; yet rights of the trustees of an institution are, practically speaking, all about being able to require various actions or various other parties.

Or if you want to go back earlier, try Justice Chase's opinion in Calder v. Bull (1798): "By the existing law of Connecticut a right to recover certain property had vested in Calder and wife (the appellants) in consequence of a decision of a court of justice, but, in virtue of a subsequent resolution or law, and the new hearing thereof, and the decision in consequence, this right to recover certain property was divested, and the right to the property declared to be in Bull and wife, the appellees." A judicially vindicated right to recover property is necessarily a right to call on the aid of others in this recovery. And the list could go on.

[* * *]

As you might gather, I don't think any of this can be laid at the door of "postmodernism." Rather, it simply reflects the fact that "right" isn't a term that you or I can simply redefine at will in a particular narrowly limited way. It is a word of the English language, which has the meaning long understood by the community of English users -- or, in legal contexts, the meaning long understood by users of legal English, though in this instance there seems to be little or no difference between lay and professional usage.

It generally refers to a wide range of claims, some moral, some legal, that can be asserted on behalf of some people or institutions against others. It can refer to constitutional rights, statutory rights, common-law rights, or others. It can refer to entitlements to be free of private action or government action. It can refer to entitlements to positive action by private entities or governmental entities. And it's not "postmodernism" to treat an English word as referring to what English speakers have long used the word to actually mean, rather than ceding authority over it to some self-appointed redefiner.

How "Rights" Are Like Superscript -1

Legal language, like mathematical language, often gives multiple definitions to similar terms.

My post about how the word "right" in American legal usage often includes the entitlements of government as well as of individuals drew this comment:

"But as a matter of American legal language...".

There you go again, conflating law with reality. Legal consensus makes governmental 'rights' no more real than it would make defining 'pi' as 'three' be three, even though that could be enforced by the state with further (not unfamiliar) grotesqueries to compensate for its being unreal.

And this led me to think of this example from math: What does x-1 mean to you? Generally speaking, it would mean 1/x. But what does sin-1 x mean to you, if you know your trigonometry? It wouldn't be 1/sin x, but rather arcsin x, which is to say the inverse of the sin function: sin (arcsin x) = x. More broadly, f-1 (x) is the inverse of the function x, so that f (f-1 (x)) = x. And even if you don't feel at a home with trig and with functions, the point is simple: In math, as in law, we sometimes use the equivalent of homonyms-- two different (but often related) concepts that are represented using the same symbols.

The same is true, of course, with computer programming language, where the same symbol can mean quite different things depending on context (usually depending on the data types of the items being operated on) -- in the same language, + might mean addition when used with numbers but concatenation when used with text, or date addition when used with a date and an integer. (This is sometimes labeled "overloading" the operator, not in a pejorative sense but just in the sense that the operator has multiple meanings.)

Think of "right" the same way. In ordinary English, of course, the word means many different things -- correct, the opposite of left, to restore to an upright position, and more. In law, it usually means a legal entitlement, but of course it has different logical properties and rhetorical qualities when used to refer to different kinds of legal entitlements: entitlements of individuals, groups, or governments, entitlements to get things or to be free from things, entitlements that are seen as stemming from moral principles or entitlements that are seen as stemming from positive law, and more. Just like superscript -1 in math, or the addition symbol in many computer programming languages, it is a sort of homonym, the meaning of which usually has to be understood from context.

Now one could certainly argue that language would be better, because less likely to confuse, if it used fewer homonyms. Perhaps we should stop using sin-1 and instead use arcsin, as many people do, and perhaps we should come up with a new symbol fINV to use for the inverse of a function more generally.

At the same time, language is a grown order, developed over centuries, and there are costs to trying to depart from it or to change it. We often use familiar locutions despite their potential ambiguity, precisely because they are familiar. (For instance, the word "homonym" is somewhat ambiguous -- it could refer to two words with the same spelling but different meanings, which are sometimes labeled "homographs," or two words with the same pronunciation but different meanings, which are sometimes labeled "homophones," but I use "homonym" because it's more familiar and because I assume you identified the proper meaning from context.) We certainly don't say that sin-1 is "wrong" in the sense of arcsin just because the same symbol is used for something else in some other context.

The same is true for "right," as in asking whether courts have "a right of ultimate jurisdiction," or whether Congress has a "right" "to tempt the navigators of enemy-vessels to bring them into the American ports." It's not the same sort of right as your right of free speech, or for that matter as your right not to be defamed by a fellow citizen, or your right to have the civil case you bring tried by a jury. As a matter of "reality," or more precisely as a matter of legal analysis, each of these "rights" has somewhat different qualities. But if the question is whether it's correct to call these "rights," that is a question of legal American English (which is to say of convention among users of legal American English), not logic -- just as the question whether sin-1 sometimes means arcsin is a question of mathematical language and thus of convention among mathematicians.

Government Rights

Yes, governments do have rights, not just powers.

A reader mentioned a claim that I'd heard before, which is that governments can only have powers, and only people can have rights. Now I agree that individual rights are in some ways different from organizational rights, whether of nongovernmental organizations or governmental ones; as a moral matter, organizational rights can only be derivative, I think, of individual rights. And as a legal matter, governmental rights and individual rights are often defined somewhat differently.

But as a matter of American legal language, governments, other organizations, and individuals are often said to have rights. For instance, consider the Articles of Confederation:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States ....

The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war ....

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated ....

Or consider Federalist No. 22:

The right of equal suffrage among the States is another exceptionable part of the Confederation....

In this case, if the particular tribunals [i.e., courts] are invested with a right of ultimate jurisdiction, ...

Or Federalist No. 31:

It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments....

Or Fenemore v. United States, 3 U.S. 357 (1797) (Iredell, J.):

The only question, therefore, that remains to be decided, turns upon the right of the United States, to affirm the original transaction; and, if they have that right, it follows, inevitably, that they ought to recover from the Defendant an equivalent for the value of the certificate, which was surreptitiously obtained. I have no difficulty in saying, that the right exists; and that, the public interest, involved in the credit of a public paper medium, required the exercise of the right in a case of this kind.

Or Hannay v. Eve, 7 U.S. 242 (1806) (Marshall, C.J., for the Court):

Congress having a perfect right, in a state of open war, to tempt the navigators of enemy-vessels to bring them into the American ports ....

A legal right is, generally speaking, just a label for a legal entitlement, and governments can have that, both with respect to other governments and with respect to individuals. One can imagine a different legal system in which one word was used for basic moral entitlements (or even legal entitlements) of individuals and another was used for legal entitlements of governments; one can likewise imagine a legal system in which, for instance, a different word was used for entitlements to be free from governmental constraint than for entitlements to governmental benefit or protection. But in American law, the word "right" has long been used in all these contexts.

The Limits of Textualism and the Union Agency Fee Case

I'm all for carefully reading the words of the Constitution, and applying the distinctions that it draws -- but we need to make sure we're understanding just what those distinctions are.

Friday, I argued that there's no First Amendment problem with compulsory union agency fees in Janus v. ASFCME: Just as there's generally no Free Speech Clause problem with a government requiring taxpayers to pay it taxes that it then uses to advocate for certain things (e.g., against gang violence, against racism, for religious tolerance, for recycling), so there's no such problem with a government employer requiring employees to pay agency fees to unions that the unions then use to advocate for various things (e.g., for certain labor contracts or for certain labor legislation). Some commenters responded that the Constitution does distinguish the two: The Constitution, they noted, specifically provides for the taxing power, but not for requiring agency fee payments.

Now looking close at the distinctions that the Constitutional text draws is indeed important -- but we need to make sure we understand what the text actually means. And here, the enumerated taxation power is quite beside the point.

[1.] To begin with, the enumerated power to tax is the power of Congress to impose federal taxes -- "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises." It has nothing to do with states imposing state taxes. Illinois and Michigan (the states in Janus and in Abood, the precedent on which the First Amendment challenge in Janus relies) have no express federal authorization to impose taxes that they can use to speak, just as they have no express federal authorization to impose agency fees on their employees that unions can use to speak.

But that's just fine, because the U.S. Constitution does not purport to enumerate all the sources of state power (including local power). The Constitution creates a federal government of enumerated powers, but it doesn't limit state governments to such enumerated powers -- state governments, both before the Constitution and after, had plenary powers.

States' plenary powers as well as the federal enumerated powers, to be sure, are subject to express federal constitutional constraints (such as the Free Speech Clause, as incorporated via the Fourteenth Amendment, the Contracts Clause, and the like). My argument is that requiring people to pay money that then ends up being used for ideological expression doesn't violate the Free Speech Clause, whether payment is through taxes or through agency fees; but of course I recognize that others disagree with me.

It's just that any First Amendment distinction between (A) states' power to compel taxpayers to pay taxes that are used for ideological expression (which is clearly settled) and (B) states' power to compel employees to pay union agency fees that are used for ideological expression (which some are denying) cannot rest on an enumerated powers argument -- since enumerated powers have nothing to do with the proper scope of these particular state powers.

[2.] Even if this case involved a federal mandate that federal employees pay union agency fees, I think the existence of the Taxing Power would still be irrelevant. Whatever might be the scope of enumerated powers thinking when it comes to the federal government as sovereign, imposing requirements on all of us, I think it's out of place when it comes to the federal government as employer, imposing requirements on its employees.

To have employees at all, the federal government has to be acting within some enumerated grant of power -- for instance, to have post office employees, it might act under the power "To establish Post Offices." But once it has that power, I think it has broad authority (whether under that power or under the Necessary and Proper Clause) to impose various requirements on employees. The federal government doesn't have to have an express power to require employees to wear uniforms, or to take tests, or to go on trips as a condition of employment (or of continued employment); it can impose such requirements as part of its decisionmaking about how best to implement the underlying power (here, to establish Post Offices). Likewise, if the federal government thinks that the post office will run more efficiently (for instances, with fewer strikes or internal controversies) if it's unionized and if the employees are represented by an exclusive bargaining agent to which they have to -- as a condition of employment -- pay fees, that is well within the underlying power to establish Post Offices.

Of course, the federal government's powers generally have to be exercised subject to the Bill of Rights, so the government can't impose conditions of employment that violate the First Amendment. But, again, the doctrine of enumerated powers isn't really helpful to distinguishing which conditions on government employees violate the First Amendment and which don't. (And, again, when it comes to state employees, such as those in Janus, that doctrine is even more clearly inapplicable, for the reasons given under item 1 above.)

* * *

So, dear readers, keep thinking about the enumerated powers doctrine when it comes to federal authority. Keep paying attention to the text of the Constitution. But recognize what things the Constitution is deliberately silent about -- such as the vast range of possible state government authority, which the Constitution was never intended to enumerate. And don't assume that, for instance, the presence of a power specifically authorizing federal taxation tells us anything about First Amendment limits on state government power.

Our Largely Non-Libertarian Constitution

Many restrictions on liberty may be unwise and wrong -- but not unconstitutional.

My post on Why There's No First Amendment Problem With Compulsory Union Agency Fees drew many interesting comments, and I hope to respond to some of them. Let me turn first to this one:

Professor, whatever you may say about thus surprising position, it is decidedly not libertarian....

The government, as government, has the right to compel many things that no other entity possesses. Therefore, your analogy between government and union is grossly misplaced and frankly beneath your level of expertise.

A union is no more than a PAC or the local Right to Life organization. Do you support a government mandate that workers must support Right to Life organization or be fired?

Please reconsider this authoritarian analysis and bring back your Libertarian thoughtfulness.

Now I'm not persuaded by the substantive argument here: True, the government has the right to compel many things that other entities, such as unions, can't. But when a government employee is require to pay union agency fees, that requirement is still imposed by the government, much as the requirement to pay taxes is imposed by the government. (Indeed, requiring government employees to pay agency fees burdens liberty less than does requiring people to pay taxes; government employees could escape agency fees by changing jobs, and taxpayers can't.) And while the government can't require people to "support" right-to-life organizations in the sense of expressing agreement with them, it can certainly require people to financially support -- via taxes -- the government's own anti-abortion advocacy; if so, I think it can equally require people to pay taxes to other organizations that end up using some of that money for anti-abortion advocacy.

But there's a deeper point here, and that has to do with my position on the First Amendment / agency fee question being "decidedly not libertarian." Indeed, the position certainly is not libertarian. Yet the proper interpretation of the Constitution is often not libertarian, I think, because the Constitution is not primarily a libertarian document.

The Constitution, first and foremost, establishes a federal government. Indeed, it deliberately establishes a stronger federal government than existed before. It also assumes the existence of state governments. It sets up a structure for the federal government that enables democratic lawmaking; state constitutions do the same for state governments. These constitutions do set up checks and balances aimed in part at preventing certain forms of tyranny. But the constitutions certainly authorize a wide range of constraints on liberty, chiefly because they leave judgments about the proper scope of liberty -- and the proper restraints on liberty -- to the democratic process.

Now the Bill of Rights, and some similar provisions in other parts of the Constitution, are indeed supposed to directly protect liberty, and courts are understood as having the duty to enforce those protections. In that respect, the Free Speech Clause, for instance, is libertarian; certainly the modern law of the Free Speech Clause has provided broad protection for liberty of speech.

But the Free Speech Clause deliberately identifies a certain zone of liberty -- the freedom of speech -- that is an exception to the normal rule of political decisionmaking. Government action that doesn't intrude on the freedom of speech may be unlibertarian, may be unwise, may be oppressive, may be many things, but it's not a violation of the Free Speech Clause.

The legal system thus needs to draw a line between what constitutes the freedom of speech and what doesn't, and in particular what constitutes a speech restriction (or a speech compulsion) and what doesn't. This isn't an easy process, and it isn't one that's always defined by the literal meaning of the word "speech." (For more on how Anglo-American law has long treated certain kinds of symbolic expression as tantamount to verbal expression, for instance, see my article on Symbolic Expression and the Original Meaning of the First Amendment.) But I see no basis for concluding that such a line should always be drawn in an especially "Libertarian" way, for instance by defining "freedom of speech" to include "freedom from being required to pay money that will be used for speech," or "freedom from being required to pay money directly to nongovernmental organizations which will then use that money for speech."

Will's and my brief goes into that substantive argument in more detail; please have a look at that if you're interested. But the fact that this analysis isn't "libertarian" does not trouble me at all. Indeed, if all my judgments about free speech questions -- including about questions that do not actually involve outright restrictions on outright speech -- always yielded the "libertarian" result, then I think that itself would be reason to doubt my "thoughtfulness."

Supreme Court Takes Up Internet Sales Tax Conundrum

Why I hope the Court leaves its "physical presence" rule for sales tax collection intact, or How I Learned to Love the Dormant Commerce Clause.

Last week, the Court granted cert in South Dakota v. Wayfair, a case that challenges the current legal status quo regarding online retailers' obligations to collect state sales tax. It is, I think, one of those unusual cases that is both fascinating, and rather profound, from a constitutional law standpoint, and simultaneously of truly prodigious practical, economic significance.

Here's the basic lay of the land. Early in the Internet Era (1992), the Supreme Court held, in Quill v. North Dakota, that a State may not require out-of-state sellers of goods or services to collect that State's sales/use tax*, unless the out-of-state seller has some "physical presence" in the State - a retail outlet, warehouse, office, or the like. So when an individual from, say, Illinois purchases goods from a seller located in Missouri - via an order placed over the telephone, or on the Net - Illinois may not require the seller to collect (and remit to Illinois) the sales tax that Illinois imposes on in-state transactions.

*Note that Illinois may - and actually does - impose a tax on Illinois taxpayers (e.g., on the purchaser, in my example) when those taxpayers make a purchase from an out-of-state seller. This tax is known as a "use tax" - based on the notion that it is not taxing the out-of-state "sale" but the buyer's "use" of the goods within Illinois - but it is generally set at a rate equal to the "sales tax" rate for in-state sales, and it functions as a sales tax equivalent.

Nothing in Quill interferes with the state's ability to impose those use taxes on its taxpayers, and most States continue to do so. But it does prohibit States from doing, in the context of "use tax" collection, what it does for "sales tax" collection, viz., requiring the sellers to collect the tax that is owed by the buyer and to remit the proceeds to Illinois - unless the seller maintains some "physical presence" in Illinois.

Quill is why most online retailers will, at checkout, say something like "Sales tax will be aded for sales to PA, NY, and IN" - places where, presumably, the seller does have a physical presence - "but not elsewhere."

The Quill Court rested its finding that taxing out-of-state sales is unconstitutional on the so-called "negative" or "dormant" Commerce Clause.

Now, the dormant Commerce Clause is one of those legal doctrines that most lawyers, I bet, still recall from Con Law I - and not at all fondly, finding it either entirely contrary to common sense and/or downright incomprehensible. For me, though, it was love at first sight (h/t to my Con Law I prof, Louis Michael Seidman, who gave us a really superlative introduction to the doctrine's many delights), and, love being blind, I've always managed to overlook and forgive the doctine's many flaws.

It's a truly stunning act of judicial creativity, crafted over several centuries of work. Here's the gist of it. In the Commerce Clause (Article I sec. 8), the Constitution gives Congress the power to "regulate Commerce ... among the several States." The Court has, beginning in the early 19th century, found in this affirmative grant a power a corresponding negative, a prohibition on the exercise State power. Congress' power, in effect, is converted into an exclusive power to "regulate interstate commerce," and States may not exercise that power or interfere with Congress' excercise of it by "imposing excessive burdens on interstate commerce without congressional approval."

The Court has identified two primary categories of State actions that unconstitutionally burden interstate economic activity. First, States may not impose regulations that discriminate against out-of-State entities for the benefit of in-state entities - always a temptation for State law-makers. And second, they may not impose regulations that, while non-discriminatory, "unduly burden" interstate commerce by "subjecting it to haphazard, uncoordinated, and possibly inconsistent regulation" by States, a "welter of inconsistent and burdensome taxation and regulatory requirements" in areas of commerce that "by their nature demand cohesive national treatment."

It was this latter problem - the potential welter of burdensome taxes and regulations - that, in the Quill Court's view, doomed North Dakota's (and, by extension, any other State's) efforts to impose its tax across State lines:

North Dakota's use tax illustrates well how a state tax might unduly burden interstate commerce. North Dakota law imposes a collection duty on every vendor who advertises in the State three times in a single year. Thus, ... a publisher who included a subscription card in three issues of its magazine, a vendor whose radio advertisements were heard in North Dakota on three occasions, and a corporation whose telephone sales force made three calls into the State, all would be subject to the collection duty. What is more significant, similar obligations might be imposed by the Nation's 6,000-plus taxing jurisdictions... [The] many variations in rates of tax, in allowable exemptions, and in administrative and record-keeping requirements could entangle a mail-order house in a virtual welter of complicated obligations.

Many people have complained about the Quill rule, vociferously, over the years, and the South Dakota statute now at issue in the Wayfair case - which provides that "sellers of tangible personal property in South Dakota without a physical presence in the state ... shall remit sales tax according to the same procedures as sellers with a physical presence" - was clearly designed to give the Court an opportunity to reconsider and overrule it, which opportunity the Court, in its cert grant, has now apparently seized.

Complaints about the Quill certainly have considerable force. Quill allows an online retailer, operating out of her garage in State X, to sell goods to buyers in all other States without charging any sales or use tax, which puts local brick-and-mortar stores in X, who have to charge X's tax to all buyers, at a serious competitive disadvantage. This, many people persuasively contend, is both economically inefficient and has helped to destroy (or at least weaken substantially) those traditional brick-and-mortar retail outlets, with dire consequences for both the health of local retailing and for the state of America's cities and towns. A number of serious heavyweights have weighed in on the question via amicus briefs supporting South Dakota in the Wayfair case - from the National Federation of Retail Businesses to the American Booksellers Association to the American Farm Bureau to the National Governors' Association to the Attorneys General of 34 States.

But I think Quill got it right. The risk of strangling Internet commerce in a morass of complex and inconsistent obligations - 6,000 plus taxing jurisdictions! - makes this precisely the sort of question that demands "cohesive national treatment" of the kind that only Congress can provide.

Of all the amicus briefs (available at Scotusblog), I found one submitted by Chris Cox, the former Republican Representative in Congress from California (and co-author, with then-Rep Ron Wyden (D-OR), of the "Internet Tax Freedom Act" of 1998) to be the most persuasive of all. He put the central issue this way:

A woman opens a small business out of her apartment in Idaho, selling iPhone cases principally over the internet ... via her own web storefront. Her customers are mostly in the United States and Canada. In a typical week she fills orders primarily to New York, Florida, Texas, Illinois, Colorado, and California, with gross annual sales of $273,000. She rarely sells to customers in South Dakota - maybe four iPhone cases in an entire week. ...

Because she lives and works in Idaho, she is registered with the Idaho State Tax Commission, the Idaho Department of Labor, and the Idaho Industrial Commission. She has paid the Idaho State Tax Commission for a seller's permit, and regularly files Idaho sales tax returns. Compliance with Idaho's rules requires her, like other businesses in Idaho, to be familiar with the State's varying tax rates and definitions of what is taxable, its audit and recordkeeping requirements, and its filing requirements (in her case, the requirement to file monthly sales tax reports).

South Dakota's law, however, does not merely require her to collect South Dakota's sales tax; it subjects her to the full range of South Dakota's tax and regulatory jurisdiction, including the panoply of South Dakota's licensing, recordkeeping, and registration requirements, and would, among other things, make her subject to periodic audit by the South Dakota Department of Revenue - which, in many States, requires an in-person appearance before the Revenue Board.

And of course if the Court discards the Quill rule and upholds South Dakota's law, we can expect other jurisdictions to follow suit.

South Dakota approvingly reports that "many other States have enacted provisions materially identical to South Dakota's," meaning that if this Court upholds the contested law in this case, even the smallest Internet sellers will quickly be subject to nationwide compliance burdens and the competing rules, filing requirements and audit demands of [thousands of] taxing jurisdictions.

This is precisely the sort of regulatory morass the dormant Commerce Clause was designed to prevent. It is yet another illustration of the central problem we face in applying legal rules to Internet communication. As Cox puts it, "the Internet's decentralized, packet-switched architecture," through which every individual website is "immediately and uninterruptedly exposed to billions of Internet users in every U.S. jurisdiction and around the planet," makes Internet commerce "uniquely vulnerable to tax and regulatory burdens in thousands of jurisdictions." Internet content is available to everyone, everywhere, simultaneously; that, however, cannot mean that it is thereby subject to the obligations imposed by all legal regimes, everywhere, simultaneously, because such a scheme is unworkable and incoherent.

Notice, too, that while South Dakota and its supporters argue that the Quill rule discriminates in favor of online retailers at the expense of local brick-and-mortar stores, abrogating the rule will have substantial discriminatory consequences in the opposite direction.

Consider again that Idaho seller of iphone cases. The moment she opens up her Internet storefront, she is subjecting herself to this burden of complying not only with Idaho's regulatory and tax authorities, but with the regulatory and tax authorities in whatever jurisdictions her electrons may enter, i.e., all of them. But her brick-and-mortar counterpart, who sells iphone cases over the counter in Idaho to customers in-store, has no such burden; even if he sells to Floridians or Californians passing through Idaho, his store only has to comply with Idaho's regulatory and tax apparatus. In Cox's words, "forcing one small business, with one location, to bear this burden is discriminatory when a large in-state retailer has no such burden."

There is a solution to this problem - and it is a fairly simple one at that. The dormant Commerce Clause disables States from acting because Congress has the responsibilty for solving problems like this. If the current status quo unfairly discriminates against brick-and-mortar retailers, a federal statute could require all retailers - online and off - to take X% of all sales and to remit that to a fund, administered by the federal government, from which payments will be made to the States based on their particular rates and the location of the transaction. Figuring out what X should be - presumably, some kind of weighted average of all current State sales taxes - and how the payment allocation formula will operate, are not trivial questions. But they're hardly intractable. It would operate, as far as consumers are concerned, as a national sales tax, though it would in reality be just a collection mechanism for State taxes.

It would require, yes, a functional Congress, and that's not what we seem to have these days. But it - or something like it, administered and authorized at the national level by our national institutions - is clearly the right answer to the problem, and if Congress weren't so, um, pre-occupied with other issues there might be a path forward to actually addressing this problem in a sensible and coherent manner. No, I'm not holding my breath - just hoping that the Court doesn't unleash the taxing hounds to go out and tear up the Net.

Peffer v. Stephens, on Probable Cause and Home Computer Searches

A computer search decision from a new Sixth Circuit judge, John Bush, has been generating some controversy. Let's take a look.

On Thursday, the Sixth Circuit decided a Fourth Amendment case that is drawing a lot of criticism online. The case, Peffer v. Stephens, is authored by a new and somewhat controversial Trump appointee, John K. Bush. A few people have asked me to take a look at the case, wondering if it's as crazy and extreme as some (okay, Slate's Mark Stern) say.

My tentative take: I think the court reached out to answer a big question it didn't have to answer. I'm skeptical that the court was right to paint with such a broad brush. With that said, I don't think the decision is as far-reaching or harmful as others seem to think, in part because I suspect future courts will limit it to its facts.

I. The Facts

This case is a civil suit challenging whether there was probable cause to issue a search warrant. The police suspected that evidence of impersonating an officer and witness intimidation would be found in Peffer's house, and they obtained a warrant to search Peffer's house for that evidence. Specifically, the police suspected that Peffer had authored a letter and a flier that was evidence of the suspected crimes, and they obtained a warrant to search for and seize records relating to the crimes including in electronic form. The warrant then says that in the course of searching for those items, the government may seize and then search any computers that might store the records in electronic form.

The officers executed the warrant and took away a bunch of computers. In the end, though, prosecutors declined to prosecute Peffer. Peffer and his wife filed a civil suit, claiming (among other things not relevant here) that the warrant lacked probable cause. In particular, the Peffers mainly argued that the affidavit did not establish probable cause that evidence of the crime would be in the house for two reasons. First, the affidavit did not provide reason to beileve that the evidence described was evidence of a crime based on then-existing state law. And second, the affidavit did not make the case that the evidence described would be found in the home.

II. The Sixth Circuit's Opinion

Judge Bush's opinion treats those two arguments separately. First, the opinion rules that it was not clearly established that that the letters were not evidence of a crime. As a result, the officer "would be protected by qualified immunity from liability for executing an otherwise valid search warrant seeking evidence that Mr. Peffer violated those criminal statutes."

Next, the opinion rules that there was probable cause to believe that the evidence described would be in the house. Much (but not all) of the argument, Judge Bush says, was based on the claim "that no assertion was made that Mr. Peffer owned either a computer or a printer or, if he did, that he kept those items at the . . . residence" that was searched. The affidavit argued that the letters and fliers were computer-generated, and likely written by Peffer, and therefore that there was probable cause to find evidence about them in the Peffer house. According to the Peffers, though, there was no reason to think that Mr. Peffer had a computer at home that stored the evidence.

Judge Bush rejected the Peffers' argument. This is the passage that has generated a lot of controversy, so I will present it in full with the footnoted material in brackets:

It appears to be a question of first impression in this circuit whether the nature of a computer is such that its use in a crime is alone sufficient to justify an inference that, because of "the nature of the things to be seized," ibid., evidence of the crime is likely to be found in the alleged criminal's residence. But this question is not a difficult one to answer based on basic principles.

As a general rule, it is reasonable, ceteris paribus, to assume that a person keeps his possessions where he resides. [FN9: See, e.g., United States v. Aljabari, 626 F.3d 940, 946 (7th Cir. 2010) ("When probable cause exists to believe an individual has committed a crime involving physical evidence, and when there is no articulable, non-speculative reason to believe that evidence of that crime was not or could not have been hidden in that individual's home, a magistrate will generally be justified in finding probable cause to search that individual's home.")].This presumption is of course rebuttable and cannot always be relied upon by a magistrate in finding a nexus between the object used in a crime and the alleged criminal's residence, because the "totality of circumstances presented" in the affidavit may suggest that the object is more likely to be found elsewhere or nowhere at all. Brown, 828 F.3d at 382. The affidavit may, for example, include evidence suggesting that the object was not owned by the alleged criminal; that it was discarded, sold, or was otherwise disposed of; that the alleged criminal, while retaining possession of the object, stores it elsewhere than his residence; or that the object no longer exists.

If an affidavit presents probable cause to believe that a crime has been committed by means of an object, however, a magistrate may presume that there is a nexus between that object and the suspect's current residence, unless the affidavit contains facts that may rebut that presumption. [FN10: As with all findings of probable cause, this presumption is subject to a staleness analysis. The Peffers did not argue that any probable cause established in the affidavit had gone stale.]

And although we have not articulated this presumption in precisely this manner, it underlies our previous decisions in cases analyzing the connection between the objects used in a crime and the alleged criminal's residence. Our jurisprudence in this area has not always been as clear as one might hope, but an analysis of several of our nexus-jurisprudence tributaries shows that it is not as muddled as one might fear.

When it comes to guns, because we "have acknowledged that individuals who own guns keep them at their homes," United States v. Smith, 182 F.3d 473, 480 (6th Cir. 1999), a suspect's use of a gun in the commission of a crime is sufficient to find a nexus between the gun that was used and the suspect's residence. For example, in United States v. Vanderweele, an informant told an ATF agent that he had seen Vanderweele in possession of a silencer at a clubhouse. 545 Fed.Appx. 465, 467 (6th Cir. 2013). The agent sought a search warrant for Vanderweele's residence based on nothing more than the informant's statement that Vanderweele had been in possession of a silencer and his awareness, "based on his training and experience, 'that firearms, ammunition, and related items are commonly stored within the owner or possessor's dwelling.' " Id. at 469. We held that based on these alleged facts, "[t]he magistrate judge had reason to believe that the silencer would be found at Vanderweele's house," and we upheld the warrant. Ibid.

This is consistent with our holdings in similar cases. [FN 11: It is also consistent with the approach taken by many, but not all, of our sister circuits. United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) ("It was reasonable for the magistrate to believe that the defendant's gun and the silencer would be found in his residence ... even though the affidavit contained no facts that the weapons were located in defendant's trailer."); United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975) (upholding a warrant on the basis that "people who own pistols generally keep them at home or on their persons"); United States v. Rahn, 511 F.2d 290, 293–94 (10th Cir. 1975) (upholding a warrant because "it is reasonable to assume that [defendant's] house was where he kept things and it is pretty normal ... for individuals to keep weapons in their homes"); Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973) (upholding a warrant because a "reliable informant stated that on the day after the robbery [Defendants] were still armed with automatic pistols" and "[a] very likely place to find them thereafter would either be on the persons of the assailants or about the premises where they lived"). But see United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979) (invalidating a warrant because there was "nothing in the affidavit from which a factual finding could be made that the gun used in the shooting was probably located at defendant's premises" and "[c]ommon sense tells us that it is unlikely that a murderer would hide in his own home a gun used to shoot someone").] See, e.g., United States v. Goodwin, 552 Fed.Appx. 541, 546 (6th Cir. 2014)(upholding a warrant to search illegal-gun purchaser's residence where an affidavit established that the gun sought was valuable and that "owners usually keep machine guns in their homes"); United States v. Cobb, 397 Fed.Appx. 128, 133 (6th Cir. 2010) (upholding a warrant to search bank robber's residence for the clothing and gun he had used during a robbery because the "reasonable inference is that this clothing and gun likely would have been in [defendant's] possession six weeks following the final robbery"). [FN12: This area of our jurisprudence is admittedly murky. In United States v. Bethal, the panel declined to find a nexus between the gun the defendant used in a shooting and his residence, despite the affidavit's asserting that the defendant had been "identified as one of the drive-by shooters." 245 Fed.Appx. 460, 469 (6th Cir. 2007). Over a dissent, the panel reasoned that because "persons accused of murders often dispose of the guns utilized in the crime soon afterward" and "the affidavit ... provided no indication that at the time of the search, [Defendant] was still participating in gang-related shootings, or was seen carrying a gun," the affidavit failed "to establish any relationship between [Defendant]'s residence and the fair probability that weapons and drugs would be found there." Id. at 468–69. We question Bethal's emphasis on ongoing criminal conduct and are not bound by this unreported decision. See United States v. Ennenga, 263 F.3d 499, 504 (6th Cir. 2001) ("We need not concern ourselves with any perceived inconsistency, however, because [inconsistent case] is an unpublished case and therefore not a controlling precedent.").]

It is clear that the use of a gun in the commission of a crime is sufficient to establish a nexus between the suspected criminal's gun and his residence. Computers are dissimilar to guns in many ways, including the nature of the crimes in which they are used and the relative ease with which guns can be transported and discarded. Computers are similar to guns, however, in that they are both personal possessions often kept in their owner's residence and therefore subject to the presumption that a nexus exists between an object used in a crime and the suspect's current residence. This is borne out by our cases involving the consumption of child pornography via computer.

Although we have never been asked to pass judgment on a magistrate's finding of a nexus between the computer used to consume child pornography and the alleged consumer's residence based on nothing more than the use of the computer, we have placed our imprimatur on a number of search warrants issued based on affidavits with scant evidence supporting a nexus beyond the use of a computer. See, e.g., United States v. Elbe, 774 F.3d 885, 890 (6th Cir. 2014) (finding that affidavit established nexus because the suspect's residence had high-speed internet and the suspect had been observed using a laptop on his front porch); United States v. Lapsins, 570 F.3d 758, 766 (6th Cir. 2009) (finding that affidavit established nexus because the IP address used to distribute prohibited material was accessed by a residential modem located in the general vicinity of suspect's residence and that suspect had participated in an online chat regarding prohibited material between the hours of 6:30 and 8:30 a.m., when suspect would be at home); United States v. Terry, 522 F.3d 645, 648 (6th Cir. 2008) (finding nexus because affidavit established that the suspect had a computer at his residence and had sent an email containing prohibited material at approximately 2:30 a.m.).

Just as guns, and other possessions, are generally kept in the home, so too are computers, and so we readily find a nexus between computers used in the consumption of child pornography and the suspected consumer's residence.

The principle that we are now articulating also explains why we are more reticent to find a nexus between drugs and their distributor's residences. In Brown, the defendant was apprehended leaving the location of a sale of more than 500 grams of heroin, and was found to be in possession of $4,813 in currency. 828 F.3d at 378–80. Responding to the Government's argument that "the magistrate judge was entitled to infer that evidence of drug trafficking would be found at Brown's residence because he was a known drug dealer," we pointed out that "we have never held ... that a suspect's status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home." Brown, 828 F.3d at 383. Recognizing that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live," we nevertheless held that "if the affidavit fails to include facts that directly connect the residence with the suspected drug dealing activity, or the evidence of this connection is unreliable, it cannot be inferred that drugs will be found in the defendant's home—even if the defendant is a known drug dealer." Id. at 383–84.

This is because, unlike guns and computers that are used in the commission of a crime, when drugs are used in the commission of a distribution offense, the distributed drugs are no longer in the possession of the suspected distributor. The affidavit therefore must establish some other reason to believe that drugs or other evidence of crime would be found in the suspect's residence if searched. See, e.g., United States v. Raglin, 663 Fed.Appx. 409, 411–12 (6th Cir. 2016) (finding nexus because affidavit established that a suspect drove to the defendant's house directly after trafficking drugs, at which point $38,000 appeared in a purse on the roof and the defendant's girlfriend told officers that guns were in the house); United States v. Kenny, 505 F.3d 458, 461 (6th Cir. 2007) (finding probable cause because affidavit established that an informant identified the defendant as the "cook" of a large ongoing trafficking operation that was taking place on his property, which was corroborated by independent evidence); United States v. Newton, 389 F.3d 631, 636 (6th Cir. 2004) (explaining that affidavit established that defendant was engaged in a "continual and ongoing" drug distribution scheme), rev'd on other grounds, 546 U.S. 803, 126 S.Ct. 280, 163 L.Ed.2d 35 (2005); United States v. Jones, 159 F.3d 969, 974 (6th Cir. 1998) (finding that affidavit established that defendant was seen distributing narcotics directly outside of his domicile). Unlike drugs, guns and computers are objects that generally remain in the suspect's possession after commission of the crime, and therefore it is reasonable to believe those possessions to be stored at the suspect's residence, absent evidence to the contrary.

Here, the affidavit included allegations that Mr. Peffer had used a computer in the commission of his crime, that evidence of the crime would likely be found on that computer, and that Mr. Peffer resided at the Bierri Road residence, thereby establishing a presumption that evidence of the crime would be found at the Bierri Road residence. That the affidavit did not allege that Mr. Peffer owned a computer or that he kept one at the Bierri Road residence is immaterial, because the averment that he used one in the commission of a crime is sufficient to create the presumption that it would be found at his residence. See e.g., Vanderweele, 545 Fed.Appx. at 469. The affidavit did not suggest any reason to believe that Mr. Peffer had used a computer that did not belong to him, that he had thrown out or otherwise disposed of the computer, or that he kept the computer elsewhere. Indeed, the affidavit did not suggest any reason to believe that the computer used in the commission of the crime would not be found at the Bierri Road residence, and therefore the only reasonable conclusion that a jury could draw is that a nexus existed between the evidence sought and the Bierri Road residence.

Because Sergeant Stephens executed a valid warrant supported by probable cause as to a connection between the mailings and the Bierri Road residence, when he searched that house, there was no Fourth Amendment violation on this ground.

III. My Analysis

Here are some tentative thoughts.

First, I'm not sure it works to treat the Peffers' two probable cause arguments separately. The Peffers claimed that the warrant was defective because the conduct wasn't evidence of a crime and because that evidence wasn't going to be in the home. Judge Bush treats those as two separate claims. He first disposes of the scope-of-crime claim on qualified immunity grounds, and he then takes on the claim that the evidence wasn't sufficiently likely to be there. But I'm not sure they can be separated. Probable cause has to be assessed all at once, I would think. The question is, overall, whether evidence of crime is likely to be in the place to be searched. If it's not clear that the conduct alleged is a crime, then I would think that discounts the odds that there are evidence of crime in the place to be searched. Off the top of my head I can't think of cases where that issue has come up. But that's my instinct, at least.

Of course, the bigger controversy over the Peffer case is about the court's apparent conclusion that "the nature of a computer is such that its use in a crime is alone sufficient to justify an inference that, because of the nature of the things to be seized, evidence of the crime is likely to be found in the alleged criminal's residence." What about that?

Here are three thoughts about that in particular. First, skimming over the briefs, I am somewhat perplexed as to why the court tried to paint with such a broad brush. Here's the opening Peffer brief; here's the officer's brief; and here's the reply. I only skimmed them, so maybe I'm missing something. If so, I apologize. But based on my quick read, I don't see how they asked the court to take a position on whether computer-generated evidence is likely to be at a suspect's home. So one way this passage is odd is that it's not clear the parties really briefed it and the court had to reach it.

Second, I'm skeptical that it works to paint with such a broad brush as the court did. The category of "computers" and "computer-stored evidence" seems just too broad. In a world of global computer networks and the cloud, with many (most?) people having different electronic devices in different places used in different ways, it's hard to generalize about where computer-stored evidence is likely to be.

In this case, for example, the court was dealing with letters and fliers that presumably were generated with some kind of word processing software. I think it's probably the case these days that if someone is creating fake letters and fliers as part of criminal activity, and they're just regular computer users with no obvious sophistication, they're probably just doing it on a home computer. The home computer probably generated copies of the documents, either as automatic backups or maybe as a version saved by the user, that are there in some form on the machines. Probably.

But I think the point is about the specific kind of document, perhaps generated by someone with no computer sophistication. It's not about the fact that it was generated on a computer generally. If you change the nature of the document -- make it, say, a threatening text message that is more likely to be on a phone the suspect carries around than on a computer always at home -- then the odds change about where it could be stored. If you change what we know about the user -- say, make him very technically sophisticated -- the odds change again.

Given that, I wouldn't be surprised if future courts tend to limit Peffer to its facts. The likelihood that using a computer to commit a crime means that evidence of the crime will be found in a computer inside the person's home at some future point just seems too fact-dependent to justify a broad generalization of the answer. The nature of the probable cause determination calls for a more fact-specific holding, it seems to me.

Third, I think there's some interesting tension between Judge Bush's ruling and Judge Srinivasan's ruling for the D.C. Circuit in United States v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017). Griffith opened:

Most of us nowadays carry a cell phone. And our phones frequently contain information chronicling our daily lives—where we go, whom we see, what we say to our friends, and the like. When a person is suspected of a crime, his phone thus can serve as a fruitful source of evidence, especially if he committed the offense in concert with others with whom he might communicate about it. Does this mean that, whenever officers have reason to suspect a person of involvement in a crime, they have probable cause to search his home for cell phones because he might own one and it might contain relevant evidence? That, in essence, is the central issue raised by this case.

Judge Srinivasan's opinion isn't in direct contrast with Judge Bush's, but it is skeptical about presuming that a computer is in a home. Srinivasan's opinion demands more evidence, both that a person has a device and that the device still is likely to have evidence on it. It's an interesting contrast with Judge Bush's opinion. I wouldn't be surpised if future lower court cases on this issue grapple with both precedents.

Why There's No First Amendment Problem With Compulsory Union Agency Fees

Will Baude and I have cosigned a new amicus brief on this in Janus v. AFSCME.

In Abood v. Detroit Bd. of Ed. (1977), the Supreme Court held that requiring employees to pay funds to a union potentially violated the employees' First Amendment rights. (Union members of course paid such funds as a condition of their voluntary union membership, but under the Michigan rule, nonmembers would have to do it, too.) This burden on First Amendment rights, the Court said, was justified as to payments used for collective bargaining purposes, because of the government interests in preserving labor peace, and preventing free-riding on the union's collective bargaining activities. But, the Court unanimously held, this compelled funding had to be limited to collective-bargaining-related speech, and couldn't include funds used to pay for "other ideological causes not germane to its duties as collective-bargaining representative."

Unsurprisingly, this has led to a good deal of litigation about what is "germane" to collective bargaining, about what procedures may be used to gather the permissibly mandated fees without getting too much or too little, about how far this extends (compulsory bar dues for lawyers? compulsory student fees for university students?), and more. It has also led to calls -- especially from some conservative and libertarian judges, lawyers, and scholars -- to reject the entire germane/nongermane distinction, and strike down all such government-compelled payments. This term, in Janus v. ASFCME, the Supreme Court is confronting this very question.

My view, though, was the opposite: I don't think there's any First Amendment problem with compelled payments of union agency fees at all. The government can constitutionally require people to pay money to the government (in taxes), money that the government can then use for ideological purposes (e.g., supporting a war, opposing racism, promoting environmentalism, and so on). Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.

I don't say this because I support unions generally -- indeed, I'm somewhat skeptical of modern American unionism, both public-sector and private-sector. But I don't see any principled First Amendment reason for forbidding governments from requiring such payments from public employees (just as I don't see any reason why the government couldn't just pay its employees less and then pay the saved sums to unions as a "labor relations consulting fee" or some such).

My coblogger Will Baude, it turns out, has the same view as to the First Amendment matter (I can't speak to his policy views on unionism). And when we were asked to sign an amicus brief in this Term's so saying, we naturally said yes. You can read the whole brief -- drafted by Gregory Silbert, Adam Banks, and Samuel Zeitlin of Weil, Gotshal & Manges LLP, whom we thank for all their work -- but here's the Summary of Argument:

[1.] Abood v. Detroit Board of Education, 431 U.S. 209 (1977), this Court has observed, is "something of an anomaly" when it comes to the First Amendment. Harris v. Quinn, 134 S. Ct. 2618, 2627 (2014) (internal quotation marks omitted). In fact, Abood is even more anomalous than previously acknowledged. For the first time, "Abood . . . recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's 'freedom of belief.'" Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471 (1997). Abood then concluded that some interference with this new First Amendment interest was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations," and the need to avoid free-riding on the public union's collective bargaining efforts. Abood, 431 U.S. at 222.

The Court has since questioned whether Abood balanced the competing interests correctly, noting, for example, that "free-rider arguments are generally insufficient to overcome First Amendment objections." Harris, 134 S. Ct. at 2627 (internal quotation marks and alterations omitted). Petitioner and his amici press similar arguments for reversing Abood here. See Pet. Br. at 36–37.

Where Abood truly went wrong, however, was not in how it applied the new First Amendment objection it recognized. Rather, Abood erred by recognizing that objection in the first place. Compelled subsidies of others' speech happen all the time, and are not generally viewed as burdening any First Amendment interest. The government collects and spends tax dollars, doles out grants and subsidies to private organizations that engage in speech, and even requires private parties to pay other private parties for speech-related services—like, for example, legal representation. To be certain, these compelled subsidies are subject to other constitutional restrictions. For example, the government cannot compel payments that violate the First Amendment's Religion Clauses or the Equal Protection Clause. But a compelled subsidy does not itself burden a free-standing First Amendment interest in freedom of speech or association.

So if Abood misapplied the First Amendment, it undercut a First Amendment interest that Abood itself miscreated. If anything in Abood should be revisited, it is the existence of the First Amendment interest itself. That is also sufficient reason to reject Petitioner's request to expand Abood's First Amendment holding by overturning it in the other direction.

[2.] There is certainly no First Amendment violation when the government itself engages in taxpayer-funded speech that some find objectionable. The content of that speech is protected from First Amendment scrutiny by the government speech doctrine. No matter how much we disagree with the government's message, we cannot withhold the portion of our taxes that support it. The First Amendment permits taxpayers who object to government speech to raise their own voices in opposition and to associate with others who share their views. And, of course, disgruntled voters can express their frustration at the ballot box. But those are their only remedies. They have no First Amendment interest to resist subsidizing government speech they happen to disapprove of.

The First Amendment analysis is the same when the government gives tax revenues to private entities to provide services that include speech. As with government speech, the government's choice of what services and what speech to subsidize does not implicate the First Amendment's freedom of speech and association rights, outside of certain exceptions like public forums. See Rust v. Sullivan, 500 U.S. 173, 200 (1991). Nor does the First Amendment constrain private grant recipients when they speak using government funds. Again, taxpayers who oppose these compelled expenditures have no right to withhold taxes, and no recourse besides engaging in speech or association themselves or voting for different government officials.

The only difference with the compelled subsidies challenged here (and in Abood) is that they involve payments made directly from one private party to another as a condition of public employment. But the government frequently conditions important activities on the purchase of speech-related services from private entities or individuals. Doctors and lawyers must enroll in continuing medical and legal education courses to remain in practice. States require entrants to a wide variety of occupations to purchase dozens or hundreds of hours of training and certifications. And a number of states require people buying real estate to be represented by an attorney at the closing. The government requires people to purchase non-speech services from private entities too, like car insurance and vaccinations, and the entities that receive these government-compelled funds are then free to spend them on objectionable speech.

The First Amendment does not provide freedom from any of these mandatory payments for others' speech. Practicing attorneys cannot refuse to pay for CLE programming because they disagree with the messages presented or because they choose not to associate with CLE providers. Home buyers cannot refuse representation by counsel in states that require it, even if they would prefer to spend their money on something else. These and other instances of private speech funded by government mandate need not be viewpoint-neutral, nor must they be justified by a compelling governmental interest. The First Amendment rights to freedom of speech and association simply do not guarantee that one's hard-earned dollars will never be spent on speech one disapproves of.

[3.] Stripped of Abood's unfounded First Amendment concerns, this is an easy case. The government has determined that collective bargaining is the best way to negotiate contracts and settle disputes with public employees. The government would undisputedly be free to establish a public collective bargaining agent, or to pay a private one directly from the public fisc. That it has chosen instead to pay its employees and then require them to hire the collective bargaining agent does not change the constitutional analysis.

[4.] Under the doctrine of stare decisis, Abood should not be overturned unless it reached the wrong result. It is not enough to note that Abood was badly reasoned, or that parts of the opinion were flawed. The Court should overturn Abood only if, going back to first principles, it can establish that the Free Speech Clause does protect a right that is violated by agency fees. But the First Amendment provides no such right. The judgment below should be affirmed.

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Supreme Court Will Hear Case Challenging Trump's Travel Ban 3.0

The Court's decision to take the case is not surprising. It could potentially result in a very important decision addressing the scope of presidential power over immigration.

The Supreme Court.The Supreme Court.

Earlier today, the Supreme Court decided to consider one of the cases challenging President Donald Trump's third travel ban, which permanently bars nearly all entry into the United States by citizens of six majority-Muslim nations, as well as North Koreans and a few Venezuelans. The Supreme Court will be reviewing a recent Ninth Circuit Court of Appeals ruling against the travel ban, which concluded that it violates immigration laws enacted by Congress and exceeds the scope of executive power. The ruling also rejected the Trump administration's extreme claim that the president has nearly unlimited power to exclude aliens from the United States, even if it goes against legislation enacted by Congress.

The return of this issue to the Supreme Court is not surprising. Many commentators, myself included, predicted that this was likely to happen as soon as the Supreme Court dismissed as moot two cases challenging Trump's second travel ban order, which Travel Ban 3.0 superseded. That is because Travel Ban 3.0 is vuilnerable to nearly all the same legal challenges as its predecessors, and is in some respects even worse.

The Ninth Circuit decision only addressed claims that the president had violated federal law and exceeded the scope of executive power. It did not consider the other major legal claim against the travel ban: that it violates the First Amendment because it is intended to discriminate against Muslims on the basis of their religion. In October, a federal trial court decision in Maryland ruled that Travel Ban 3.0, like its predecessors, does indeed violate the First Amendment's ban on religious discrimination. That ruling is now on appeal to the US Court of Appeals for the Fourth Circuit, which previously ruled against Travel Ban 2.0 on the same basis. If the travel ban violates the First Amendment, it is unconstitutional even if Congress had authorized it and even if it is otherwise within the permissible scope of executive power.

The Supreme Court's order, issued today, indicates that the justices will consider the First Amendment claim, as well as the statutory and separation of powers issues. If the Court does indeed rule on both, the decisoin could potentially be a major milestone. If the justices rule that the travel ban is illegal because it violates federal immigration law, they could well decide not to address the constitutional issue. But even such a comparatively narrow ruling would be significant, because it would likely conclude that current law bars the president from engaging in nationality discrimination in deciding which aliens to admit, and would require the Court to reject the Trump administration's assertion of nearly unlimited executive power to exclude aliens.

On December 4, the justices issued a ruling staying implementation of lower court preliminary injunctions barring enforcement of Travel Ban 3.0. Some believe this ruling indicates that the Supreme Court will uphold the travel ban. But there are a number of other possible interpretations of the Supreme Court's action.

One somewhat surprising aspect of the Court's decision is that the justices decided to hear the Ninth Circuit case without waiting for the Fourth Circuit to make a decision on the other major case challenging the latest travel ban. It could be that the justices got tired of waiting for the Fourth Circuit to issue its ruling (it is taking longer than expected) or that they think the Fourth Circuit opinion is unlikely to add much to the already extensively developed arguments for and against the travel ban. In my view, the most likely explanation is that the Court's December 4 decision to stay the injunctions was in part premised on the expectation that the Fourth and Ninth circuits would issue their rulings quickly, so as to minimize the potential harm to people kept out by the ban, and their families and associates in the United States. When the Fourth Circuit upset that expectation, the justices chose to act without waiting for the lower court decision to come out. At this point, it is unclear whether the Fourth Circuit will go ahead and issue a decision anyway, or whether it will hold back until the Supreme Court rules on the Ninth Circuit case.

In my view, Travel Ban 3.0 is both unconstitutional and a violation of federal immigration law, for reasons I covered here. In that post, I also explained why the inclusion of North Korea and some Venezuelan government officials does not obviate the anti-Muslim purpose of the ban. I have previously discussed why Trump's various travel bans qualify as unconstitutional discrimination even though they do not cover all the Muslims in the world, and why it is entirely legitimate for courts to consider Trump's campaign statements as evidence of his discriminatory motives. In an amicus brief I coauthored on behalf of a group of several constitutional law scholars when the second travel ban order was before the Supreme Court, we explained why the Bill of Rights - including the First Amendment's ban on religious discrimination - constrains federal power over immigration no less than other federal powers. I also agree with the Ninth Circuit's rejection of Trump's dangerous assertion of nearly unlimited executive power in this field.

Though I hope the justices will rule against the travel ban, I honestly do not know what the Supreme Court will do with this case. My sense is that it could easily go either way. I will have more to say about the issues raised by the return of the travel ban case to the Supreme Court in future posts.

A Big Supreme Court Term Just Got Bigger

The Supreme Court agrees to hear challenges to Travel Ban 3.0

The current Supreme Court term is almost certain to be a blockbuster (at least it will be once the justices start issuing opinions). By the end of June, the Court is likely to have decided multiple cases on major constitutional issues, ranging from the constitutionality of partisan gerrymandering and SEC administrative law judges to whether the First Amendment prohibits mandatory agency fees for public sector unions and protects a religious baker's refusal to bake a cake for a same-sex wedding. Some have even called it a "term for the ages." (Okay, that was me.)

Today the Court added another case to its crowded docket: Trump v. Hawaii. In the Court's lone order issued today, the Justices accepted the Trump Administration's petition for certiorari seeking review of the prelimnary injunction granted by a district court in Hawaii against the Administration's third iteration of the so-called "Travel Ban" (aka "Travel Ban 3.0"). In granting the petition, the Court accepted all three questions presented by the government (whether the case is justiciable, whether the order was within the President's authority, and whether the lower court injunction was overbroad) as well as one question posed by the challengers: Whether the Trump Administration policy violates the Establishment Clause of the Constitution.

There is no word yet on when the Court will hear arguments in this case, or whether the Court will grant expedited review.

Meanwhile, the Trump Administration has also asked the Supreme Court to review a district court decision barring the Administration from suspending the Deferred Action for Childhood Arrivals (DACA) program. This is a longshot, as the Administration is seeking certiorari before judgment or any review by the U.S. Court of Appeals for the Ninth Circuit. The administration's brief is here.

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University of Alabama Student Expelled for Racist Instagram Rant

Clearly unconstitutional, and a threat to a vast range of other, much more serious, speech.

According to press accounts, a University of Alabama student was expelled for posting an Instagram video in which she said, among other things, "I fucking hate niggers," and then some. The University president issued a statement condemning the video and saying the student "is no longer enrolled here"; that doesn't outright say that she was expelled, but I have no reason to doubt the press accounts.

Now no-one can confuse the video with a thoughtful argument. If empty hostility like this vanished from American life (perhaps through some magical transfusion of decency and good judgment), the nation would be a better place.

But there's a practical reason that the First Amendment forbids expelling university students for saying such things -- or for that matter saying that they hate fucking Americans or Israelis, or love Hitler or Stalin or Mao or Che or whoever else. The last several years have made clear what the preceding decades should have shown as well: Attempts to punish people for their views aren't going to be neatly cabined just to the extreme.

Condemnations of illegal immigration, of the Black Lives Matter movement, of affirmative action, of Israel, and of a wide range of other things are routinely excoriated as racist or anti-Semitic. Some such excoriation may be factually accurate in some instances; but it means that, if supposedly racist speech can be suppressed, then any expression of such views risks being suppressed as well.

Likewise, we've routinely seen people on campuses try to suppress serious speakers alongside the ridiculous, and to suppress substantive arguments alongside epithets. Nor is this limited to race and ethnicity. Sharp criticism of Islam is viewed by many as morally equivalent to racism (and is sometimes even outright labeled racism). Logically, the same should apply to sharp criticism of Catholicism, evangelical Christianity, and the like. Likewise, the notion that disapproval of homosexuality -- not just slinging epithets but any form of discrimination or support for discrimination -- is morally tantamount to racism is a commonplace of modern debates about gay rights.

If university students know that students can be freely expelled for racist rants, would they feel confident that they wouldn't be expelled -- or suspended or otherwise punished -- for expressing their views even without the epithets? Would they feel confident that they wouldn't be punished for expressing views critical of illegal aliens or transgender rights, or for arguing that there are biological differences between the sexes or between racial groups? Even apart from the rights of the particular student in this case, is there any safe harbor that officials like the University of Alabama president can offer to other students who want to express other views that the president may find "highly offensive and deeply hurtful," and that "do not represent ... the values of [the] University"?

Justice Black's 1961 dissenting opinion in Communist Party of U.S. v. Subversive Activities Control Bd. began with the famous line:

I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.

Justice Powell's majority opinion in Healy v. James (1972) relied on this very point, in holding that college students who hold extreme views (there, again leftist views) are protected even against far lesser penalties than expulsion. This wasn't abstract theorizing: This was practical calculation based on the experience of preceding decades, experience that seems fully applicable today. It's too bad that so many are forgetting it now.


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