Topic: Constitution, the Law, and the Courts

The Supreme Court Finally Takes Up a Second Amendment Case

New York City has a law banning the transportation of licensed handguns out of the city, which isn’t the minor issue it may seem at first glance. When the Supreme Court agreed to take it up in late January, it broke a decade-long silence on the Second Amendment—no cases on the scope of the right since District of Columbia v. Heller (2008) declared an individual right to keep and bear arms. That means this odd little case about a dumb city law may set the standard for how all Second Amendment cases are handled going forward, after the lower courts have spent the last decade trying to restrict the right as much as possible.

New York City’s bizarre ordinance bans pistol permit holders from taking their firearms beyond the five boroughs. (The irony seems to be lost on the eminently anti-gun municipality, which one would think wants as many guns to leave as possible). A group of residents who own handguns and want to transport them outside the city for a variety of reasons—to take them at another residence upstate, to compete and shoot out-of-state, and any other manner of otherwise lawful activities—brought a lawsuit. They lost in the district court, and again in the U.S. Court of Appeals for the Second Circuit, which claimed to apply some level of heightened scrutiny, but in actuality just rubber-stamped the city’s invocation of “public safety.”

Because Cato is concerned with the slipshod way in which Second Amendment claims have been handled in the various courts of appeal throughout the country since Heller, we have filed an amicus brief supporting these plaintiffs before the Supreme Court.

The lack of a clear standard of review in the Second Amendment context has encouraged the development of an unintelligible and wildly divergent body of law. The Supreme Court must establish clear ground rules for evaluating right-to-arms claims and enable the lower courts to develop a coherent, consistent approach to resolving the array of issues that will continue to arise: carry rules, new firearms technology, ammunition/magazine restrictions, licensing schemes, and the like.

Lower courts should engage in an informed analysis based on constitutional text, history, and tradition. Not buzzwords, not a thumb on the scale for states and municipalities. One of the greatest aspects of the American system of government is that the scope of our rights do not change over time (unless the Constitution is amended). They were quite deliberately fixed at the time of the Founding, and then again after a bitter Civil War. Using modern developments and evidence-free security claims as a reason to restrict the rights of law-abiding citizens to armed self-defense is inconsistent with our Constitution.

The Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. City of New York in October, after it returns from its summer break.

The Federal Election Commission Is Bad Enough

Chris Hughes, a founder of Facebook, has proposed Congress create a new agency to “create guidelines for acceptable speech on social media.”

As Hughes notes, this proposal “may seem un-American.” That’s because it is. At the very least, Hughes’ plan contravenes the past fifty years of American constitutional jurisprudence, and the deeply held values that undergird it. Let’s examine his case for such a momentous change.

He notes that the First Amendment does not protect all speech. Child porn and stock fraud are not protected by the First Amendment. True threats as harassment are also illegal. Incitement to violence as understood by the courts can also be criminalized. All true, though more complex than he admits.

The fact that the courts have exempted some speech from First Amendment protection does not mean judges should create new categories of unprotected speech. Hughes needs to make a case for new exemptions from the First Amendment. He does not do so. Instead he calls for an agency to regulate online speech. But, barring drastic changes to First Amendment jurisprudence, his imagined agency would not have the authority to broadly regulate Americans’ speech online.

However, Hughes’ old firm, Facebook, can and does regulate speech that is protected from government restrictions. In particular, Facebook suppresses or marginalizes extreme speech (sometimes called “hate speech”), “fake news” about political questions, and the speech of foreign nationals.

Facebook is not covered by the First Amendment.  You can support or decry their decisions about such speech, but it would be “un-American” to say Facebook and other private companies do not have the power to regulate such speech on their platforms. And I might add that you can exit Facebook and speak in other forums, online and off. A federal speech agency would not be so easily avoided.

Hughes may think that Facebook is doing a poor job of regulation and that its efforts require the help of a new government agency (which would be subject to the First Amendment). But if we ended up with government speech codes imposed by private companies, the courts might well swing into action on the side of free speech. In that sense, the new agency would actually vitiate private efforts at content moderation. We might well end up with more of the online speech Hughes and other critics want to restrict.

In sum, Hughes’ agency is a bad idea in itself. It is unlikely to accomplish his goals. The agency might even weaken private efforts to limit some extreme speech. Of course, if judicial doctrines changed to accommodate new speech restrictions imposed by this new agency, America really would change for the worse. It is encouraging, however, how little support and how much criticism Hughes’ proposal has received from his fellow Progressives. (See the critiques by Ari Roberts and Daphne Keller linked here).   Conservatives should feel free to chime in.

Armslist and Bias against Conservatives Online

Last week, conservatives once again cried “bias” after Facebook banned a spate of popular fringe pundits and conspiracy theorists. Meanwhile, the week’s most important content moderation story went, for the most part, unnoticed. Had conservatives paid more attention to the Wisconsin Supreme Court’s ruling in Daniel v. Armslist, they might feel differently about the utility of platform intermediary liability protections like Section 230 of the Communications Decency Act, a bedrock indemnity that prevents internet platforms from liability for user behavior. While usually understood merely as a shield for social media firms, it guards a wide variety of services that utilize user-generated content, such as classified advertising or individual websites’ comments sections.

Armslist is essentially a digital classified ads section for guns. Daniel, the daughter of a shooting victim, sought to hold Armslist liable for the use of its platform by her mother’s murderer. Her suit alleged that certain features of Armslist’s site were negligently designed, without regard for how they might be used by persons prohibited from buying firearms. According to the complaint, Armslist should have anticipated that its lack of user registration requirements and the ability to search for in-state, background check-free sales would be misused by patrons prohibited from possessing firearms. In most states, it is perfectly legal to privately sell a firearm to your neighbor without utilizing the services of a federally licensed dealer. The imposition of broad liability on services that help to coordinate legal activities would burden and perhaps preclude Americans’ right to sell and buy firearms, a legal activity.

The suit against Armslist represents a growing trend of attempts to circumvent CDA 230’s protections by suing platforms for features that enable certain kinds of harmful user behavior, rather than simply suing over the behavior itself. Snapchat was recently sued for the creation of a speedometer filter by plaintiffs who were struck by a Snapchat user driving at over a hundred miles an hour (the driver was speeding in pursuit of a high speedometer reading on the Snapchat app, attempting to impress her friends with her foolishness). Thankfully, in both the Snapchat case and now in Daniel v. Armslist, judges have understood that “no matter how artfully pled”, these suits attempt to hold platforms responsible for user behavior and are therefore precluded by CDA 230.

Digital classified ads services and speedometers are neutral tools. Chief Justice Patience D. Roggensack writes in Armslist: “All of these features can be used for lawful purposes, so the CDA immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes.” So long as a given feature can be used lawfully, service providers cannot be held liable for their unlawful use: doing so would unreasonably burden lawful users of the tool in question. Just because Uber can be used to summon a getaway vehicle after a heist does not render Uber a getaway car-hailing service. Had Armslist been decided differently, or if CDA 230’s protections were to be limited or eliminated, these tools would not be commercially viable. 

The conservative claims about social media bias may lead to legislative revisions to CDA 230. Those revisions could easily restrict current CDA 230 protections for businesses like Armslist. Indeed, some on the left would see removing such protections as a goal of revising CDA 230. The Armslist decision shows that the harm done to the Second Amendment would be real and permanent. Are the speculative gains of seizing control of Facebook’s content moderation really worth the risks to the Second Amendment? Won’t this be a case of unintended consequences of the sort conservatives used to warn us about so many, many years ago?

Apple v. Pepper: A Chip Off the Old Illinois Brick?

In yesterday’s decision in Apple v. Pepper, Justice Brett Kavanaugh joined the four liberal Justices to rule that class action lawyers can sue Apple on behalf of consumers who allegedly paid uncompetitively high prices for iPhone apps, even though the consumers bought the apps not from Apple itself but from third-party developers who were paying a commission to the tech giant. The majority rejected Apple’s defense under the so-called Illinois Brick doctrine, under which only direct purchasers of a good or service, but not purchasers further down the distribution chain, can sue over monopoly pricing (everyone agrees that current law empowers the developers themselves to sue Apple for alleged monopolistic behavior). Kavanaugh, on behalf of the majority, said Apple lost the benefit of the Illinois Brick defense when it inserted itself into the supply chain as a retailer through its Apple Store, thus making itself in practice an intermediary even if it was not itself the party deciding what to charge app buyers. 

The significance of yesterday’s ruling is probably not in its proximate consequences for the iPhone supply chain, which are still uncertain (the ruling allows the plaintiffs to proceed, but doesn’t mean they’ll win). As Justice Neil Gorsuch observed in dissent, the Court’s mini-rule is “pointless and easily evaded”: 

To evade the Court’s test, all Apple must do is amend its contracts. Instead of collecting payments for apps sold in the App Store and remitting the balance (less its commission) to developers, Apple can simply specify that consumers’ payments will flow the other way: directly to the developers, who will then remit commissions to Apple. No antitrust reason exists to treat these contractual arrangements differently, and doing so will only induce firms to abandon their preferred—and presumably more efficient—distribution arrangements in favor of less efficient ones, all so they might avoid an arbitrary legal rule.

The wider worry, as Gorsuch points out, is that the majority (significantly joined by Kavanaugh) did not merely resolve a technical puzzle about how the law’s language applies to an unusually designed supply chain, but seemed inclined along the way to adopt an ungenerous and narrow reading of Illinois Brick. And that is significant because in the overall scheme of antitrust law, Illinois Brick serves as a major check against runaway litigation (aside from its own logic, it restrains multiple and duplicative suits over the same behavior). For that reason, the antitrust plaintiff’s bar has long sought to knock down the defense. Yesterday’s outcome gives it a passing chip at most, but will bear watching as a harbinger. 

Ballot Initiatives Can’t Be Corrupted and Won’t Love You Back

When voters want to change how they’re being governed, the existing legal framework should make it easy for them to do so—or at least not get in their way. That’s what a group of concerned citizens from three cities in Washington state believed when they set out to reform unions. They tried to place their proposal on three municipal ballots, which involved collecting signatures from the relevant communities and filing them alongside the initiative.

State law seemed to require the cities to place these measures on the ballot or adopt them outright. None of the city councils did either of those things, so the citizens sued, arguing that the cities’ actions were illegal. The nonprofit Freedom Foundation represented them pro bono (free of charge), but they were unsuccessful: there were ultimately no campaigns for the ballot initiatives. Despite that legal failure and no election, unions filed a complaint against the Freedom Foundation for failing to disclose its pro bono legal work as a “campaign expenditure.”

The problem with labeling non-campaign legal work as a campaign expenditure is fairly clear: there can be no campaign-finance violation if there’s no campaign. Citizens were never asked to vote on anything, nor did anyone try to influence their votes. But the issue goes even deeper: When a law tries to make lawyers disclose work undertaken free of charge, it opens them up to harassment and political attack, and makes it more difficult for citizens to find legal representation, discouraging political speech for both.

New Rights For Crime Victims? The Trouble With “Marsy’s Law”

Advocates have successfully pushed in several states for the passage of state constitutional amendments promoted as a bill of rights for crime victims, under the banner of “Marsy’s Law.” I’ve got a new piece at Real Clear Policy pointing out some of the problems with that:

For example: In the name of protecting their privacy, and especially shielding them from fear of possible intimidation, the measures restrict dissemination of personal information about crime victims. While the impulse involved is understandable, and there have long been legitimate ways of accommodating it, it is also essential that accused persons have access to evidence they need to prepare the case in their defense….

Meanwhile, the laws can deprive the public of information about crime that is legitimately important to them, as when, for example, a murder occurs in their neighborhood. …

Underlying several of these problems is a point made by [one commentator]: “In many cases whether the accuser is a ‘victim’ is only decided after a trial.” To be accorded rights before that point may presume the outcome, and can also give a complainant or accuser valuable leverage.

Consider, for example, the phenomenon by which cops have employed the laws to conceal their identities from the public after shooting civilians who were then charged with having assaulted the officer [as discussed by] my Cato colleague Jonathan Blanks in a recent Cato Daily Podcast. … Blanks “notes that police officers wear their names on their uniform and act in the name of the public in public. ‘That information, by nature, must be public’.”

Whole thing here, including a mention of Cato scholar Roger Pilon’s testimony against a similar constitutional proposal more than two decades ago. And much more at Overlawyered on how, to quote Radley Balko, “Laws named after crime victims and dead people are usually a bad idea.”

Be Like Bernie Sanders. Support Arbitration Clauses.

Bernie App language requiring arbitration of claims


“Read this section carefully. It requires you to waive your right to a jury trial and arbitrate certain disputes and claims and prohibits class and representative actions or arbitrations.” — from the “Bernie App.” (illustration via @NC_CyberLaw on Twitter). 

That’s right. The campaign-ready “Bernie app” released this week requires its users to agree to submit to arbitration in case of dispute, in place of lawsuits and especially class actions. As Ted Frank observes, “Even Bernie Sanders recognizes the importance and value of arbitration in navigating a legal system designed to benefit lawyers over the interests of consumers and businesses.”

The thing is, the Vermont senator has been railing for years against this sort of contractually-provided-for arbitration. A year ago he denounced the Supreme Court’s Epic Systems decision, which allowed employers to do what his app does and use arbitration language to fend off possible class actions. Just two weeks ago the former Burlington mayor said he was introducing a bill to outlaw contractually specified arbitration for many workplace disputes. As in the case of the flap over how the inveigher against millionaires has made good money as a book author, wouldn’t it be nice if he began preaching what he practices?

Sanders is hardly the only one for whom a gap can be observed on this matter between words and deeds. Take the New York Times, which has heatedly editorialized against arbitration clauses in the context of credit cards and insurance contracts while using them itself. Or the lawyers who took a challenge to cellphone-contract arbitration to the Supreme Court in AT&T v. Concepcion — what’s in the contract they offer their own clients? You guessed it.

When arranging their own dealings with clients, customers, and even campaign supporters, all these actors recognize that arbitration offers many advantages over no-holds-barred litigation and especially over class actions and similar devices, under which ambitious lawyers can step in and manage the grievance process for their own benefit while magnifying stakes through mechanical damages multiplication.

In last week’s decision in Lamps Plus v. Varela, the Supreme Court ruled that courts should not read class grievance mechanisms into arbitration agreements that are silent or ambiguous on the subject. Like many in the Court’s seemingly endless string of cases on arbitration, mostly arising from statutory interpretation rather than constitutional law, it was decided by a 5-4 split along liberal-conservative lines.

In Lamps Plus, the long-term stakes were less than usual for this line of cases. Why? Because had the Court adopted the liberal Justices’ view, the practical effect would have been to set off a rush to insert language into all existing agreements so as to make the exclusion of class relief explicit and unambiguous, exactly as the Bernie app does. When the dust settled, the actual distribution of rights between the two contracting sides would have reverted to where it started, while lawyers would have made a ton of money both drafting the new language and litigating the stray cases where the language did not change fast enough. But at least there would have been a chance for some hand-waving about helping out the little guy.