VOLOKH CONSPIRACY

Today, in New Doe Child #1 v. Congress of the United States, a divided panel of the U.S. Court of Appeals for the Sixth Circuit dismissed a series of challenges to printing the National Motto "In God We Trust" on U.S. currency. As Judge Stranch (joined by Judge Norris) explained the case:

Atheists, Humanists, and one Jewish Plaintiff challenge the federal statutes requiring inscription of the National Motto, "In God We Trust," on U.S. currency. Plaintiffs allege that the currency statutes cause them to bear, affirm, and proselytize an objectionable message in a way that, for the Atheist and Humanist Plaintiffs, violates their core religious beliefs, and, for the Jewish Plaintiff, renders him complicit in the sins of superfluously printing God's name and destroying God's printed name. Plaintiffs claim that the statutes violate their rights under the Religious Freedom Restoration Act of 1993 (RFRA), the Free Exercise and Free Speech Clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment, as incorporated by the Due Process Clause of the Fifth Amendment.

Although all three judges concluded the plaintiffs had standing to bring their claim, they also unanimously rejected the constitutional claims as pleaded, and upheld the district court's dismissal of the case. The statutory claim was another matter.

Dissenting from her colleagues, Judge Moore concluded that several dozen of the plaintiffs had met their burden of showing a "substantial burden" on their practice of religion under the Religious Freedom Restoration Act.

Judge Moore began her dissent as follows:

The national motto, and its inclusion on American money, is of relatively recent vintage. The first phrase inscribed on American currency was "Mind Your Business"; it appeared on the continental dollar and then on the fugio cent. William Van Alstyne, Trends in the Supreme Court: Mr. Jefferson's Crumbling Wall—A Comment on Lynch v. Donnelly, 1984 DUKE L.J. 770, 774. "In God We Trust" did not appear on the currency until the Civil War, when it was imprinted on coins. B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 DUKE L.J. 705, 707–08 (2010). Congress mandated that the phrase be included on all U.S. coins and bills in 1955, Act of July 11, 1955, Pub. L. No. 84-140 (1955), and subsequently adopted the phrase as the national motto in 1956, Act of July 30, 1956, Pub. L. No. 84-851 (1956).

In their first claim, the plaintiffs argue that the inscription of the national motto "In God We Trust" on U.S. coins and bills substantially burdens their exercise of religion in violation of the Religious Freedom and Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq. All but four of the plaintiffs have sufficiently pleaded factual allegations demonstrating that the inscription substantially burdens their religion and have thus pleaded a plausible violation of RFRA. I would, therefore, reverse the district court's grant of the government's Rule 12(b)(6) motion to dismiss Claim 1 with respect to these thirty-nine plaintiffs.

According to Moore, the plaintiffs were able to show that the current policy imposes a substantial burden on their religious beliefs and, at least as for purposes of a motion to dismiss, the government had failed to demonstrate that printing "In God We Trust" on currency is a narrowly tailored means of furthering a compelling government interest. Unsurprisingly, Judge Moore relies upon the Supreme Court's Hobby Lobby decision in her opinion.

Here's a taste of Judge Moore's analysis:

[T]here is a substantial burden when there is either de facto or de jure coercion on an individual to choose between violating her religious beliefs or facing serious consequences. See Hobby Lobby, 133 S. Ct. at 2783. In this case, the plaintiffs allege that the government's inclusion of the national motto on coins and bills "force[s] Plaintiffs to choose between either relinquishing their rights to participate in much of their everyday commerce (by using the nation's monetary instruments) or violating their religious beliefs.". . . The Supreme Court has held that "RFRA was enacted to prevent" the government from "effectively exclud[ing] . . . [individuals] from full participation in the economic life of the Nation." Hobby Lobby, 133 S. Ct. at 2783. Exclusion from full participation in the economy is exactly what the plaintiffs argue is occurring here. There are transactions that are entirely cash-only (e.g. cash-only businesses, parking meters, tolls, vending machines) and there are individuals whose participation in economic transactions is limited solely to using coins and bills (e.g. children and adults who cannot access credit or bank accounts). If use of coins and bills violates an individual's religious beliefs, then there is a substantial burden if they must use coins and bills in order to participate fully in "the economic life of the Nation." . . .

The government argues that the national motto's "inscription on U.S. coins and currency is central to the public proclamation of the fundamental political values the Motto represents." Appellee Br. at 31. The government claims that its interest in the inscription of the national motto on U.S. coins and bills is compelling because it "is one of the primary means by which Congress communicates, for the benefit of U.S. citizens and to the broader world, the fundamental values on which our system of government is founded." Appellee Br. at 31. The government provides no evidence buttressing its claim about the primacy of the role U.S. coins and bills play in transmitting a message from Congress to U.S. citizens and others. Furthermore, the plaintiffs vigorously contest the validity of the government's assertions. Appellant Br. at 33. Consequently, there are no undisputed facts conclusively establishing that the government has a compelling interest in inscribing "In God We Trust" on U.S. coins and bills.

Even if the government were able to establish such a compelling interest, it has failed to demonstrate that the inscription is the least restrictive means of achieving this compelling interest. The government argues that the placement of the national motto on U.S. coins and bills is the least restrictive means to further its compelling governmental interest because no other phrase is the national motto. Appellee Br. at 33. This argument sidesteps the compelling interest the government has asserted. The compelling interest, as articulated by the government, is not simply having the national motto inscribed on coins and bills. Rather, it claims that the compelling governmental interest is having coins and bills function as a "primary means by which Congress communicates . . . the fundamental values on which our system of government is founded." Appellee Br. at 31. Thus, the national motto is not the least restrictive means of achieving this alleged compelling interest because Congress could still use coins and bills as such an advertising device without using the specific phrase "In God We Trust" or any other religiously inflected phrase that imposes a substantial burden on users of U.S. coins and bills.

Given the standard for RFRA claims the Supreme Court set forth in Hobby Lobby, these are serious arguments. As statutory claims, however, they could be easily extinguished by Congress. Although I don't expect this case to attract four votes for certiorari at One First Street, if it did (and is the plaintiffs were to prevail), I would expect Congress to exempt currency from RFRA rather quickly.

The Supreme Court handed down Collins v. Virginia today, ruling 8-1 that the Fourth Amendment doesn't permit the police to go onto the curtilage around a home to search a car using the lower standard of the automobile exception. The decision was 8-1, with Justice Sotomayor writing for the majority and Justice Alito dissenting. I think the majority was exactly right: The automobile exception allows a search of a car once you're at the car, but it doesn't allow entrance onto the curtilage (treated as the home for Fourth Amendment purposes) to get to the car to then apply the automobile exception. And I think Justice Sotomayor wrote a strong opinion on it, too.

To my mind, the most interesting aspect of Collins concerns a brief preliminary part of the decision, the Court's identification of the curtilage. As Fourth Amendment nerds know, curtilage is the space immediately around the home that gets treated as an extension of the home for Fourth Amendment purposes. As I teach the concept in class, the law needs curtilage because otherwise the police could go right up to someone's windows and peer inside without it being a Fourth Amendment "search." Curtilage creates a sort of buffer around the home to make sure the home is fully protected fro observation.

This raises a puzzle, how do you identify the curtilage? The Court seems to go back and forth between thinking it's easy and thinking it's hard. Recent cases suggest the concept is easy and intuitive, but I wonder if that is true. I thought I would explain the basis for my sketpicism.

Here's a history of the curtilage concept to bring us up to speed. The Court first hinted at the idea of curtilage in Hester v. United States, 265 U.S. 57 (1924), a short and breezy opinion by Justice Holmes. Officers found booze on land not far from the suspect's house. Held: This was a search of an "open field" not protected by the Fourth Amendment, as by its text the Fourth Amendment only protects "persons, houses, papers and effects"":

This evidence was not obtained by the entry into the house, and it is immaterial to discuss that. The suggestion that the defendant was compelled to give evidence against himself does not require an answer. The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester's father's land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their "persons, houses, papers and effects" is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl.Comm. 223, 225, 226.

The citation to Blackstone was to Blackstone's discussion of the substantive crime of burglary. It included at page 225 the following sentence:

And if the barn, ftable, or warehoufe be parcel of the manfionhoufe, though not under the fame roof or contiguous, a burglary may be committed therein; for the capital houfe protects and privileges all it's branches and appurtenants, if within the curtilage or homeftall.

The bafic idea -- um, I mean, basic idea -- was that you were still guilty of burglary if you broke into a barn, stable, or warehouse that was a part of the house area even if not under the same roof as the home. Hester then suggests that Fourth Amendment law has a similar concept, with some area around the home being protected as part of the home but not open fields.

The Court then reaffirmed Hester after Katz in Oliver v. United States, 66 U.S. 170 (1984), incorporating and expanding upon the distinction between open fields and curtilage in the era of the "reasonable expectation of privacy: test:

The historical underpinnings of the open fields doctrine also demonstrate that the doctrine is consistent with respect for "reasonable expectations of privacy." As Justice Holmes, writing for the Court, observed in Hester, 265 U. S., at 59, the common law distinguished "open fields" from the "curtilage," the land immediately surrounding and associated with the home. See 4 W. Blackstone, Commentaries *225. The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life," Boyd v.United States, 116 U. S. 616, 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. See, e. g., United States v. Van Dyke, 643 F. 2d 992, 993-994 (CA4 1981); United States v. Williams, 581 F. 2d 451, 453 (CA5 1978); Care v. United States, 231 F. 2d 22, 25 (CA10), cert. denied, 351 U. S. 932 (1956). Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields.

In Oliver, the police observed marijuana growing in a secluded field surrounded by wood and fences with "no trespassing" signs put up: The field could not be seen from any point of public access. The Court ruled that the field was still an "open field" for Fourth Amendment purposes:

The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment. As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement.

The Oliver court added in a footnote that the distinction should be relatively easy to draw in most cases:

The clarity of the open fields doctrine that we reaffirm today is not sacrificed, as the dissent suggests, by our recognition that the curtilage remains within the protections of the Fourth Amendment. Most of the many millions of acres that are "open fields" are not close to any structure and so not arguably within the curtilage. And, for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage — as the area around the home to which the activity of home life extends — is a familiar one easily understood from our daily experience. The occasional difficulties that courts might have in applying this, like other, legal concepts, do not argue for the unprecedented expansion of the Fourth Amendment advocated by the dissent.

As readers may recall, Democracy in Chains by Duke History Professor Nancy MacLean is a very badly-flawed account of the life, career, and influence of the late Nobel Prize winning economist, James Buchanan. Despite the fact that the book has been shown to be replete with errors, exaggerations, and misinterpretations, it was a finalist for a National Book Award and more recently received honors from the Los Angeles Times. Most disturbingly, despite serious allegations of academic malfeaseance, MacLean is the plenary speaker at the AAUP's annual conference this Fall.

MacLean has refused to respond to any of the substantive critiques of the book, beyond to claim that her critics are almost all somehow associated with the Charles Koch Foundation, and thus somehow tainted. (In the book, she grossly exaggerates the influence of Buchanan on Koch, but the critics do not focus on that point, as there are so many other errors to deal with.)

A review by Alain Marciano of Université de Montpellier and Jean-Baptiste Fleury of the University of Cergy-Pontoise, forthcoming in the Journal of Economic Literature should, but almost certainly won't, be the final nail in the book's coffin:

This essay develops three main points. One, MacLean's general narrative puts too much emphasis on Buchanan, and largely neglects the many other important characters who contributed to the intellectual criticism of government intervention. Two, MacLean's account is marred by many misunderstandings about public choice theory, for instance about the role that simple majority rule plays in constitutional economics. Third, in the midst of abundant archival material, her historical narrative is at best sketchy, and is replete with significantly flawed arguments, misplaced citations, and dubious conjectures.

The authors are very polite and restrained, but basically the review amounts to a devastating critique of the book. If one reads it along with Brian Doherty's review for Reason, this review by Steve Horwitz, and these responses by Art Carden et al., and this review by Michael Munger, I think it would be difficult for an objective observer to conclude anything but that the book is academic trash.

Carden wrote on Facebook that at this point the issue is whether truth matters any more. My conclusion is that in large swathes of the history profession, it does not. Thus far, not a single one of the many critiques of MacLean's book has come from a member of a history department at an American university. Various historians have instead defended her book, based on some combination of argument-from-authority, hostility to libertarians, and the bizarre notion that because MacLean is a social historian, non-social historians must accept her interpretation of the facts, because reading lots of stuff and then coming to conclusions is what social historians do. Seriously.

This episode features a conversation with Nick Bilton, author of American Kingpin: The Epic Hunt for the Criminal Mastermind Behind the Silk Road. His book, out today in paperback, tells the story of Ross Ulbricht, the libertarian who created the hidden Tor site known as the Silk Road, and rode it to massive wealth, great temptation, and, finally, a life sentence.

It's a fine read in its own right, but for those who know the federal government, the most entertaining parts concern the investigators who bring Ulbricht down. They all have ambitions and flaws that mirror the stereotypes of their agencies, even -- or perhaps especially -- when the agents go bad. It's got everything – sales of body parts, murder (maybe!), rogue cops, turf fights, and justice in the end.

Sadly, I predict this episode will generate more hate mail than any other. Why? You'll have to listen to find out. Feel free to question my judgment with emails to CyberlawPodcast@steptoe.com.lp

Download the 219th Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Send your questions and suggestions for topics or interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Last week, as expected, the Supreme Court ruled in Epic Systems v. Lewis that arbitration clauses in employment clauses requiring individualized proceedings are enforceable under the Federal Arbitration Act. In a 5-4 ruling written by Justice Gorsuch, the Court concluded that neither the FAA's savings clause nor the National LAblor Relations Act (as interpreted by the National Labor Relations Board) renders such clauses unenforceable.

The outcome in this case was rather predictable because it is directly in line with a long string of Court decisions adopting a broad interpretation of the FAA and upholding arbitration clauses that, among other things, preclude class action lawsuits. There was little daylight between the claims put forward in Epic and those rejected by a 5-4 majority in prior cases such as AT&T; Mobility v. Concepcion and American Express v. Italian Colors Restaurant. Whatever the merits of the Court's well-established FAA jurisprudence, Justice Ginsburg's effort to distinguish these prior cases is the least compelling part of her dissenting opinion. Concerns for stare decisis are at their zenith in statutory interpretation cases, so we should not be particularly surprised that a majority of the Court opted to stay the course.

The Epic Systems opinion unleashed an epic amount of criticism claiming that the decision was a victory for employers at the expense of workers. See, for instance, this NYT editorial and op-ed. These commentaries echo the forceful language of Justice Ginsburg's dissent,which makes explicit that she opposes the decision on both legal and policy grounds. Interestingly enough, Justice Gorsuch's opinion is expressly ambivalent on the substantive policy claim, repeatedly stressing that it is up to Congress, and not the courts, to determine whether the preclusive effect of the FAA have gone too far.

There is no question Epic Systems was a win for business groups. There's also no question that among the losers are plaintiff attorneys, as the decision will close off a range of class action lawsuits against employers. But was Epic Systems really a loss for workers?

NYU law professor Samuel Estreicher, one of the nation's foremost experts on labor and employment law, challenges the conventional liberal view of Epic. In a recent commentary for Bloomberg, Professor Estreicher suggests the opinion will actually redound to workers' benefit. He writes:

For all the alarm expressed by Ginsburg and other critics of the decision, some perspective is in order. Most employment claims are unlikely to be brought as class-action suits. In contrast to many consumer class-action claims, which deal with things like credit-card disclosures, people who get fired or denied agreed-upon wages will almost always show up in court or arbitration. Moreover, federal and state administrative agencies are not bound by private arbitration agreements; they are able to sue to vindicate "small claim" statutory rights where private claimants are not likely to come forward.

Perhaps paradoxically, workers as a class may gain from employers' having a renewed incentive to put in place fair arbitration agreements. That's because arbitration, if certain safeguards are provided, provides a cheaper, more informal mechanism for workers to assert their claims than class-action suits. Most workers don't make enough money to hire private lawyers and proceeding on one's own in court without legal representation is a fool's errand. The overwhelming majority of these "pro se" claims are thrown out well before trial; few get past the motion-papers stage.

In arbitration, most claimants are likely to get a hearing— irrespective of the strength of their claim or whether or not they have a lawyer. Getting "a day in court" — in this case, a hearing on the merits — is an extremely valuable thing, especially in cases where learning why the employer acted the way it did and being able to tell your story is likely to clear emotions and promote dispute resolution.

Arbitration has its flaws, but it often provides a lower cost, faster, and more accessible dispute resolution mechanism than litigation. Further, while class actions may be an effective way to impose pain on corporate defendants, they are not always an effective way to ensure those with legitimate claims receive actual compensation. Archis Parasharami and Dan Jones make a similar point here.

There is a reflexive tendency in some corners to assume that a win for business must be a loss for workers or consumers. Sometimes this is true, but not always. In some cases, reducing costs and increasing efficiencies produce welfare gains for workers and consumers, and in some cases, when business wins, it only means that plaintiff's lawyers are the losers. If Estreicher is correct, Epic Systems may be one of those cases.

My wife pointed out that they didn't Anglicize the name to Eugene—not much of either a villain name or a hero name in English, I'm afraid. But Yevgeniy ....

Donald Trump recently described at least some immigrants as "animals" who must be deported. There has been much controversy over whether Trump meant to condemn undocumented immigrants generally, or just those who are members of the MS-13 gang. But few if any commentators question the basic idea that it is entirely justifiable to deport immigrants who are gang members, or commit other crimes. That view is common ground to almost everyone in mainstream politics, not just Trumpist immigration hawks. But, however popular it may be, that conclusion is wrong. Immigrants who commit offenses worthy of retribution should be punished. But they should not be subjected to any more punishment than native-born Americans who commit the same crimes. That means they should not be deported, unless deportation is also imposed on natives.

I. How Deportation is Like Racial Discrimination.

What can possibly justify such a radical and unpopular conclusion? The answer, I think, is that it is wrong to punish people for morally arbitrary characteristics that are beyond their control. They include such things as race, gender, ethnicity, and - in this case - where you happen to be born, and to which parents. Consider the following hypothetical debate, set in the Jim Crow-era South:

Integrationist: We must abolish Jim Crow segregation. It is wrong to restrict people's freedom based on their ancestry or skin color. No one can control those characteristics, and they tell us nothing about a person's moral worth.

Segregationist: We must maintain segregation in order to protect whites from black criminals. Don't get me wrong; some blacks are truly wonderful. But a lot of them are thieves, murderers, or rapists. All too many of them are just not the best people. Unless we maintain segregation, there will be an epidemic of black crime against whites. [Ed. note: segregationists did in fact make arguments like this as one of their defenses of Jim Crow]

Moderate: I agree that black crime could be a problem under integration. But surely we don't have to segregate all blacks to deal with it. Let's allow blacks to integrate. But if any of them commit a crime, then we reimpose Jim Crow restrictions on those people, after they pay their fines or complete their prison sentences. We don't need to segregate blacks who have done nothing wrong. But black criminals have proven they aren't fit to integrate with white society. And the threat of reimposing Jim Crow can help deter blacks from committing crimes in the first place.

The "Moderate's" position is a great improvement over conventional segregationism. Under his approach, the only blacks saddled with Jim Crow are those who have been convicted of a crime. The vast majority of blacks are now free to integrate (though woe betide them if they are wrongly convicted or inadvertently commit some small offense).

Nonetheless, most modern Americans would surely reject Moderate's proposal. Why? Because it imposes a severe additional punishment on black criminals solely because of their race. For the sin of having chosen parents of the wrong color, they are punished far more severely than whites who have been convicted of the same crimes. Even if a person has committed an offense that merits retribution, it is wrong to inflict additional punishment on them simply because they have the wrong parents.

Yet giving people extra punishment for choosing the wrong parents is exactly what we do when we deport immigrant offenders, but not natives who have been convicted of the same crimes. In the overwhelming majority of cases, what distinguishes an immigrant from a citizen is some combination of who their parents were and where they were born. If you were not born on US soil or to US citizen parents or have a close relative in the US, the odds against you being able to become a US citizen are overwhelming. You will likely have to wait decades or even centuries before getting admitted as a legal immigrant. Who your parents are and where you were born are morally arbitrary characteristics in much the same way as race and ethnicity are: We have no control over them, and they say nothing about our inherent moral worth.

Deportation of immigrants convicted of crimes might not be a major moral problem if it was limited to those who commit very serious offenses, such as rape or murder. But undocumented immigrants are often prioritized for deportation even for very minor offenses, such as traffic violations. Even legal immigrants with green cards can be deported for some very minor crimes, including possession of small amounts of almost any illegal drug (save for marijuana).

In many situations, offenses that earn a native a small fine, a suspended sentence, or just a minor slap on the wrist, will get an immigrant (even a legal one) deported to a lifetime of poverty and oppression. As libertarian sociologist Fabio Rojas (one of the few open advocates of ending deportation of immigrants convicted of crimes) puts it: "[d]eportation is an extremely harsh punishment that is not appropriate for most crimes. If you steal a car, you may deserve a few months in prison. You don't deserve to be sent to a country where you don't know people, where you have to start over from scratch, and, in some cases, where you might be killed." I think a car thief may deserve more than a few months in prison. But that still is not the equivalent of deportation.

For many people, the difference between immigrant criminals and native ones is the the government has the right to exclude immigrants for pretty much any reason it wants, much like private property owners and members of clubs can exclude outsiders even if they don't have a good reason for doing so. I criticized the house and club analogies in some detail here. If either of these theories correct, it readily justifies deporting immigrants convicted of crimes - but also pretty much any other immigrants the government wants to bar for any reason, or even no reason at all. In addition, the house and club analogies, also have deeply illiberal implications for native-born citizens, too. In this post, I set these issues aside, in order to focus on the idea that criminal immigrants deserve to be deported even if other immigrants (or most others) do not.

Another standard justification for deporting immigrants convicted of crimes is to prevent them from committing future crimes on American soil. Many criminals are are likely to become recidivists after completing their sentences. If we deport them, any future crimes they commit will occur somewhere else. But this very same reasoning can justify deporting native-born criminals no less than immigrant ones. Many of them are also likely to reoffend. And if we deport them, they might do it somewhere else rather than in the US. Getting rid of potential recidivists cannot justify deporting immigrant offenders, but not native ones who have committed the same sorts of crimes and have a comparable risk of recidivism. And it cannot justify deporting either in cases where we have other, more humane options, for reducing recidivism. Similar logic applies to claims that deportation is preferable because it is cheaper than imprisonment (if it is done instead of a prison sentence, rather than in addition to it). We can potentially save money by deporting native-born criminals too.

It is not my view that discriminatory deportation of criminal immigrants is indefensible under any conceivable circumstances. As with other important rights, such as freedom of speech or property rights, in my view the right to be free of unjust discrimination is a strong presumption, but not absolute. That is also my view of immigration and freedom of movement generally. If violating an important right is the only way to prevent some much greater evil, then the violation may well be justified in that extreme situation. But before we accept such a policy, there must be strong evidence that the great evil really is going to happen, and that committing a serious injustice really is the only way to prevent it.

II. Why it Doesn't Matter that Deportation Technically is not a Form of Criminal Punishment.

Some might object to my whole line of argument by pointing out that deportation is not a form of punishment. Under present law, that is technically true. However, if a person if deported because they have committed some crime, that is still a massive additional sanction imposed on them by the government, whether it technically qualifies as criminal punishment or not. The technical legal distinction does not translate into a meaningful moral difference. If it did, we could use the same logic to justify "Moderate's" proposal of reimposing Jim Crow on African-Americans who commit crimes. Just define resegregation as a civil remedy rather than a punishment, and you are all set!

The similarity between deportation for crimes and conventional criminal punishment has been recognized by no less an authority than the United States Supreme Court, in the recent case of Sessions v. Dimaya. In her plurality opinion, Justice Elena Kagan notes that "deportation is a particularly severe penalty, which may be of greater concern to a convicted alien than any potential jail sentence" (citations omitted). In a concurring opinion, conservative Justice Neil Gorsuch (a Trump appointee) took issue with some of Kagan's analysis, but still noted that deportation is comparable to other "severe" penalties, such as "compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely."

III. What About Equal-Opportunity Deportation?

Much of my critique of deportation is obviated if we adopt an "equal opportunity" deportation policy under which the penalty is imposed on certain classes of criminals regardless of whether they are immigrants or not. Perhaps some people have committed acts so terrible that we are justified in excluding them from the US forever. Something like this idea arguably underpinned the late 18th and early 19th century British policy of "transportation," under which some types of criminals were permanently exiled to Australia.

Today, the US and other liberal democracies reject the use of deportation as a form of punishment for crime. It is considered too cruel for even the worst criminals (so long as those criminals are not immigrants, that is). I am not entirely sure this is correct. If a crime is horrible enough that it is permissible to sentence the perpetrator to death, life imprisonment without parole, or an extremely long prison sentence (also without parole), I am not sure that deportation can never be justified in such cases. It is far from clear that is necessarily worse than a multi-decade prison sentence, much less death. In that respect, Neil Gorsuch may be right when he argues that deportation is not a uniquely severe sanction, but one comparable to at least some other severe penalties. The use of deportation as punishment might also be more defensible if the exile imposed is "only" temporary rather than permanent. A year of exile may not be obviously worse than a year in prison.

Here, I will not try to resolve the issue of whether deportation can ever be a just form of punishment. But if it ever is, it must indeed be equal opportunity. The punishment should fit the crime - not the criminal's choice of parents.

In this episode, Markham Erickson highlights the Mugshots.com prosecution. The site had a loathsome business model, publishing mugshots for free and charging hundreds of bucks to people who wanted the record of their arrests taken down. Now the owners are being prosecuted in a case that combines the worst of European crazy ("surely criminals have a right to be forgotten") and California crazy ("profits are being earned here – surely that calls for a criminal investigation"). Markham explains why this may be a hard case for California to win – and then joins me in expressing schadenfreude for the owners, whose mugshots are even now spread all across the internet.

Meanwhile, the ZTE mess gets messier as Congress moves to block President Trump's proposed sanctions relief. Democrats are joining national security Republicans to move legislation on the topic. Who says President Trump is the divider-in-chief?

Michael Vatis digs into the FBI's latest high-profile problem: it grossly overstated the number of encrypted phones it encountered last year. Was it a mistake or a misrepresentation? Our panel leans toward mistake.

Michael and I also criticize President Trump's decision to dump government security for his phone. Michael reminds us of the President's scathing treatment of Hillary Clinton's insecure email server and asks why an insecure cell phone is different.

And in a new feature that we still haven't made up our mind about, we do a lightning round of stories we couldn't get to:

• GDPR has arrived at last, and typically, the European Parliament isn't ready.
• Suspected CIA leaker Joshua Schulte was busted for kiddie porn but should have been arrested for stone stupidity.
• Kaspersky sets up shop in Switzerland; will that save the business? I'm skeptical.
• Ecuador's budget for protecting Assange ran into the millions of dollars, and it looks as though he may be on the street any minute now. A bad week for hackers and leakers. ;-)
• Germany's misbegotten effort to tame hate on Facebook is going to end up censoring what Americans can read. When will Congress act to preserve the first amendment from other governments?
• China's bragging that its social credit system has blocked people from 11 million flights already; when will that system be expanded to everyone in the hacked OPM files?
• In a declassified report, a federal commission treats EMP attacks as a serious threat, not the stuff of an Alex Jones rant, as elite opinion seems to think.
• There's a circuit split regarding border cell phone searches.
• The NTSB has issued a gobsmacking preliminary report on the fatal crash involving Uber's autonomous vehicle.

Download the 218th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Send your questions and suggestions for topics or interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Former site of Susette Kelo's house. May 2014. Photo by Ilya Somin.

Jeff Benedict is a prominent reporter and author of Little Pink House, an excellent journalistic account of the events leading up to Kelo v. City of New London, the controversial 2005 Supreme Court decision in which the justices ruled that it is permissible for the government to take homes and other property in order to transfer it to new private owners for purposes of promoting "economic development." His book was recently made into a powerful movie about the case (which I reviewed here). In a recent op ed in The Day (the local paper in New London, the city where the Kelo takings occurred), Benedict proposes that New London return at least some of the land taken from Susette Kelo and her neighbors to the original owners:

It was 20 years ago this month that the City Council authorized the New London Development Corporation to prepare a plan to acquire and redevelop 90 acres on the Fort Trumbull peninsula where the Thames River joins Long Island Sound....

But after acquiring nearly all of the targeted 90 acres, the city and the NLDC took an all-or-nothing approach to the few remaining lots owned by Susette Kelo, where sat her little pink house, and six neighbors. The prospect of jobs and increased tax revenues, the city argued, were "public benefits" worthy of using eminent domain.

In June 2005, by a 5-4 vote, the U.S. Supreme Court agreed.

Here's the rub. Thirteen years after the Kelo decision, after all the condemning and evicting and bulldozing, nothing has been built on the land that was taken. Basically, an entire neighborhood was erased in vain. Meantime, all those vacant lots have become New London's scarlet letter....

Thirteen years of inertia is long enough. For the sake of all parties – the city, the state, and the residents who were displaced – it's time to turn the page and write an epilogue with a far more redeeming outcome...

A good starting point might be to allow the marketplace to decide what makes sense for the barren land that remains rather than trying to continue driving this redevelopment effort from city hall....

But before the city can expect to attract developers and investors with the wherewithal to transform the peninsula, the city must first shed its scarlet letter. The best place to start is by carving out seven contiguous residential building lots – perhaps right along East Street where the pink house once stood – and offering to convey them to Susette Kelo and her six evicted neighbors. The current mayor and City Council are not responsible for the mistakes of the past. But they have the chance to be game changers by formally apologizing and reconciling with the city's displaced residents.

As Benedict points out, the development plan that led to the Kelo takings fell through, and the land remains essentially empty to this day. It would be wrong to say that the property is completely unused. As I described in The Grasping Hand, my own book about the case (which focuses more on the legal and policy issues than Benedict's), a colony of feral cats have taken up residence on the site. Some enterprising locals have built little cat shelters for them.

Improvised feral cat shelter near the former site of Susette Kelo's house. May 2014. Photo by Ilya Somin.

Though it might discomfit the feral cats, Benedict's proposal has much to recommend it. As he explains, it could help effect reconciliation between the city and displaced residents, and potentially make it possible to finally find a productive use for the condemned property.

In the course of conducting research for my book, I interviewed Susette Kelo and other homeowners displaced by the Kelo takings. Most were still very angry about their mistreatment by the City and the New London Development Corporation - not just because of the ultimate outcome of the case, but also because of the extensive harassment they were subjected to in order to get them to sell their land "voluntarily." The compensation they eventually received was not enough to offset suffering endured over a period of several years.

Many of the displaced former residents still live in the region. Benedict reports that Susette Kelo is open to potentially moving back to New London if the City were to return the site of her famous "little pink house," which became a nationally known symbol of the case. I do not know if this is true of the other plaintiffs in the case. But I think many might at least appreciate the conciliatory gesture Benedict advocates. Even if the displaced owners chose not to return after getting their land back, they could potentially sell it to developers or other businesses who could build new homes on the site or find some other productive use for it. At the very least, the outcome is likely to be better than the experience of the last thirteen years, during which this attractive and potentially valuable land has largely gone to waste.

While the Kelo takings were a tragedy for the City of New London and the displaced homeowners, the massive backlash generated by the Supreme Court decision did lead to valuable - even if incomplete - reforms in many states. It also broke the seeming consensus in favor of a broad view of "public use," under which most lawyers and judges believed the Constitution allows the government to take property for almost any reason it wants. Several state supreme courts have repudiated Kelo as a guide to the interpretation of their state constitutions' public use clauses, thereby providing stronger protection for property rights than currently mandated by the federal courts' interpretation of the Fifth Amendment. The Supreme Court might well overrule or limit Kelo in a future decision.

In the meantime, Benedict's proposal can potentially help the participants in the case find some closure, and allow the city to move forward. We can also hope that other communities seeking to promote development will learn from New London's experience, and come to understand that the better way to increase economic growth is to respect property rights and work with local residents, rather than forcibly displacing them.

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

New on the podcast: eminent domain for private gain, phone searches at the border, and illegal structuring. Click here for iTunes.

Or click here to listen to a Kojo Nnamdi Show discussion of counterproductive, and frankly cruel, new rules for D.C. day care providers that are the subject of an IJ lawsuit.

• Family of man shot and killed by gov't agents sends wrongful death claim to FBI. Yikes! Actually, ICE agents killed him. The family sends claim to ICE on July 24; it arrives on July 28 at 7:22 p.m., the last day of two-year deadline to file, but agents do not come into actual possession of the mailing until August 1. District court: Which is too late; the family can't sue. First Circuit: Maybe it can.
• Allegation: NYC cop forces drunk driving suspect into cell, slams his head into brick wall, metal bars, leaving him bloody and unconscious. Officer: Didn't do that; his injuries were self-inflicted. Jury: The officer used excessive force, but no damages need to be paid. Second Circuit: Which is seemingly inconsistent, but could be the jury thought the officer used excessive force maneuvering the suspect into the cell but didn't think the officer bashed his head or caused his injuries. No need for a new trial.
• In 2016, Boyertown, Penn. school district adopts policy permitting transgender students to use the bathrooms and locker rooms for the sex with which they identify. Other students: Which violates our right to privacy. District court: No need to enjoin the policy while challenge to it goes forward. Third Circuit (30 minutes after oral argument): Affirmed. Written opinion to follow.
• Career offender gets caught with lots of marijuana; he skips the country, gets married and has child in Thailand. He's brought back, given 20 years. Offender: My co-conspirators got only five years; my sentence is cruel and unusual. Fourth Circuit: We have misgivings about long sentences for marijuana, but the issue wasn't preserved for appeal, and your co-conspirators aren't career offenders.
• Allegation: Virginia law traps low-income motorists in a catch-22; failure to pay court fees automatically results in the suspension of one's driver's license, which frustrates plaintiffs' efforts to earn the money necessary to pay the fees. (Study: One in six Virginia drivers has a suspended license thanks, in part, to court debt.) District court: The suit is barred on several procedural grounds, including the Rooker-Feldman doctrine. Fourth Circuit: None of which are appealable. Maybe amend the complaint? Dissent: The suit should not have been dismissed. (IJ amicus: Federal courts undermine constitutional rights by their overly aggressive application of Rooker-Feldman.)
• Allegation: Border Protection agents detain U.S. citizen returning from Mexico. After a frisk, drug doggie sniff, and visual inspection of her private parts yields no evidence of drugs, she is taken handcuffed to El Paso, Tex. hospital where X-rays also reveal no drugs. Without her consent, two doctors and two nurses probe her cavities: no drugs found. Fifth Circuit: She can't sue the doctors or nurses.
• Allegation: Madison County, Ky. jail officers beat up arrestee, causing nerve damage that will require surgery. Sixth Circuit: His suit should not have been dismissed. Several officers' on-camera jokes about being fired or indicted add an "unpleasant gloss" to the case.
• Detroit elementary school principal receives kickbacks for allowing contractor to short the school of supplies. She's convicted, sentenced to two years. Principal: I wasn't allowed to present evidence at trial that, in addition to massages, I spent the kickbacks on fixing the school's roof, among other school-related things. Sixth Circuit: Conviction affirmed.
• Allegation: Suicidal pretrial detainee spends months in Brevard County, Fla. jail crammed barefoot in 9-by-15 cell exposed to the urine, feces, semen, blood, and vomit of up to seven cellmates. Eleventh Circuit (over a dissent): Qualified immunity for the officer in charge; such conditions do not violate the Eighth Amendment, and, even if they did, the officer wouldn't have known that. Moreover, plaintiff didn't show that the officer was aware of said conditions.
• Informant testifies against drug suspect, who's convicted in 2004. He appeals unsuccessfully. Yikes! In 2011, prosecutors disclose information (which they'd purportedly just learned) that could have been used to cast doubt on the informant's testimony. Eleventh Circuit: We should reconvene en banc and overturn the precedent that prevents the suspect from pursuing a second appeal.
• Breaking with the Fourth and Ninth Circuits, the Eleventh Circuit holds: The gov't can seize any and all travelers' electronic devices at the border and undertake comprehensive searches of said devices without any individualized suspicion of wrongdoing. (We discussed the Fourth Circuit's ruling on the podcast.)
• Defense attorney has sex with two clients while they are detained in Duval County, Fla. jail in exchange for reduced legal fees, money. Florida Bar: We recommend suspending his license to practice law for 18 months. Florida Supreme Court: No, he's disbarred.
• State law from 1967 requires California's table-grape growers, who believe their grapes are superior in quality and price to run-of-the-mill grapes, to pay for generic grape advertising. Unconstitutional compelled speech? California Supreme Court: No, it's government speech, so the state's constitutional protections for speech do not apply. (NB: The Ninth Circuit reached the same conclusion under the First Amendment in 2009.)
• In 2016, the FDA promulgated a 499-page "Deeming Rule" for cigars, which, among other things, bars new products from the market without prior FDA approval, which is costly and cumbersome to obtain and will, plaintiffs say, effectively bar smaller manufacturers from the field. District court: No need to address that, as the new Administration may revoke the requirement. But a separate provision requiring health warning labels on cigar boxes and advertisements does not violate the First Amendment.

In 2014, Pagedale, Mo. code enforcement officers handed out two tickets for every household in the city for violations like tall grass, peeling paint, sagging pants, and front-yard wading pools. Last week, in response to an IJ lawsuit, the city agreed to cease, in the words of the St. Louis Post-Dispatch, "preying on citizens" with such "contrived" citations. Read more here. This week, IJ filed a new federal lawsuit against Doraville, Ga. officials who "prowl the streets with iPads, ready to document the slightest infraction," like cracked driveways and improperly stacked wood, seeking to generate revenue. Read more in Curbed.

From TS Media, Inc. v. PBS, 2018 WL 2323233 (D.C. Super. Ct.), apparently decided May 15, 2018, but just posted on Westlaw (and to my knowledge not noted in any media accounts):

On February 20, 2018, Plaintiffs [TS Media, Inc. ("TSM"), The Smiley Group, Inc., and Tavis Smiley Presents, Inc.] filed their four-count complaint alleging (1) breach of PBS's November 2016 agreement with TSM, (2) breach of PBS's November 2017 agreement with TSM, (3) intentional interference with contract, and (4) tortious interference with business expectancy. In the contract counts, Plaintiffs claim that the breach of contract was that PBS indefinitely suspended distribution of the Tavis Smiley show to PBS member stations after former co-workers accused Mr. Smiley of sexual harassment. The tort counts arise out of PBS's statements to the media in December 2017 that "'multiple credible' allegations of sexual misconduct" by Mr. Smiley caused it to stop distributing the show.

PBS moved to dismiss the interference with contract and interference with business relations claims, which the court viewed as basically alternative ways of stating a libel claim, given that the essence of plaintiffs' argument was that PBS made false statements that damages plaintiffs' reputation and thus injured plaintiffs' business prospects (see the first paragraph of the second block quote below); the motion was brought under D.C.'s Anti-SLAPP Act, which provides an expedited procedure to dismiss meritless claims based on speech on matters of public interest. The court agreed that the Act applied:

Plaintiffs' tort claims are based on PBS's statements to the media that "'multiple credible' allegations of sexual misconduct" caused it to stop distributing Mr. Smiley's show to its member stations. These statements are expression that involves communicating views to members of the public. These statements also plainly concern an "issue of public interest" within the meaning of § 16-5501(3) because they relate to a public figure: Plaintiffs' complaint includes allegations establishing that Mr. Smiley is a public figure, and Plaintiffs concede as much in their opposition.

Moreover, PBS made the statement at a time of extraordinary public interest in alleged sexual misconduct by men in positions of power, particularly in news and entertainment. Plaintiffs themselves recognize this fact in the section of their complaint entitled "Sexual Harassment and the #metoo Movement in America": "beginning in approximately October 2017, sexual harassment in the workplace became a major topic of conversation throughout the United States. Many famous and successful men have rightfully been outed for their improper, and in many cases, criminal behavior. Hosts on network television … voluntarily left their jobs in scandal as a result of allegations against them concerning sexual harassment."

Plaintiffs' primary contention is that the Anti-SLAPP Act does not apply to PBS's statements to the media about this issue of public interest because PBS made the statements primarily to protect its commercial interests. Section 16-5501(3) provides, "The term 'issue of public interest' shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker's commercial interests rather than toward commenting on or sharing information about a matter of public significance." Plaintiffs' argument is effectively foreclosed by Doe No. 1 v. Burke (D.C. 2014). Burke rejected the argument that to establish a prima facie case, the speaker must "disprove commercial motivation, even where such motivation is not apparent from the content of the speech." ... The statements by PBS that form the basis of Plaintiffs' tort claims do not on their face discuss or further any commercial interest of PBS, which is a non-profit entity. Excluding PBS's statements from the protection of the Anti-SLAPP Act would conflict with its purpose to protect "the constitutional interests of the defendant who can make a prima facie claim to First Amendment protection."

And the court concluded that plaintiffs' claim was indeed meritless:

Because PBS's speech concerned a matter of public concern and a public figure, Plaintiffs must show that PBS acted with actual malice—that is, Plaintiffs must prove by clear and convincing evidence '"that the statement was made … with knowledge that it was false or with reckless disregard of whether it was false or not."' "First Amendment restrictions apply to suits for intentional interference with contractual relations," and "a plaintiff may not use related causes of action to avoid the constitutional requisites of a defamation claim."

Mr. Smiley admitted to PBS that he had sexual relationships with workplace colleagues during the course of his 30-year career, and Plaintiffs do not provide any evidence that PBS knew that these relationships were purely consensual, or that PBS had serious doubts about the credibility of any of his accusers. PBS's alleged hostility towards Mr. Smiley is legally irrelevant to whether it knew its statements were false or made them with reckless disregard for the truth.... "... '[A]ctual malice' must be shown regardless of the speaker's motives." ... Plaintiffs also do not provide evidence establishing a likelihood of success in proving that PBS stated falsely or recklessly that it had engaged an outside law firm to conduct an investigation of the allegations against Mr. Smiley; indeed, Plaintiffs admit that members of a law firm representing PBS interviewed Mr. Smiley....

In light of this ruling, the Court need not decide whether PBS's assessment of the credibility of Mr. Smiley's accusers was a non-actionable opinion. Plaintiffs' lack of evidence of knowledge of falsity or reckless disregard for truth also makes it unnecessary to decide whether Plaintiffs offered evidence establishing a likelihood of success on other elements of their tort claims.

It's not clear to me whether it's sound to read the statute as distinguishing for-profit broadcasters from nonprofit ones; both are constitutionally protected speakers, and both also have commercial interests. Still, though a broadcaster understandably has "commercial interests" in protecting its reputation with viewers, alleged misconduct by high-profile speakers on the broadcasting network is also "a matter of public significance," and not just a "private interest[]."

During last month's Supreme Court oral argument on the the legal challenges to President Donald Trump's travel ban policy, Solicitor General Noel Francisco assured the justices that the president's numerous statements calling for a "Muslim ban" and equating that with his later "territorial" policy of targeting residents Muslim-majority nations, had no connection to the travel ban. Instead, Francisco claimed that the policy was actually based on an "extensive worldwide process" analyzing of the security risks posed by entrants from all of the world's 200 nations, which in turn resulted in a "neutral baseline" of security criteria that were evenly applied to "every nation in the world." Meanwhile, the administration refuses to release this supposed analysis to the courts (despite the availability of in camera proceedings under which classified information could be released to the judges but withheld form the public), and Francisco claims that judges must accord the president "a very strong presumption that what is set out there is the truth."

But, as David Bier of the Cato Institute explains in a recent post, the evidence suggests that no such "extensive" analysis or "neutral baseline" actually exists. All that actually exists is a perfunctory 17 page document with little or no analysis and evidence:

In justifying President Trump's travel ban to the Supreme Court last month, his attorneys repeatedly referenced a confidential report. They told the Court that this "extensive" analysis of "every country in the world" resulted from a "worldwide multi-agency review" and proves that the president did not act with religious animus....

In response to a [Freedom of Information Act] lawsuit by the Brennan Center for Justice in New York, the government disclosed that its final secret report filed in September was just 16 pages with a one-page attachment. Yet the president claims it reviewed "more than 200 countries," meaning it covered each country in less than a tenth of a page....

We now know that this 60-word average is actually too generous for most countries because the government has said that the report included the information on the eight targeted countries and the explanation for the ban contained in the president's 12-page travel ban order. If it dedicated the other five pages solely to the non-travel ban countries, this would leave just 16 words for each...

[T]he length of the report by itself gives the justices a very good reason to conclude that the government's report did not actually assess every country in the world in 16 words or less....

Maybe the president could rebut this impression, but any presumption that he had in his favor at the outset should be forfeited based on what we know now. The best evidence indicates that his "extensive" review simply never happened.

Perhaps Trump has some other super-secret, totally terrific study that justifies the travel ban more fully. But, at this point, there is no evidence that any such thing exists. If it did, the administration would have a strong incentive to reveal it, even if only in camera, or in some redacted form, to protect classified information. It also did not indicate the existence of any such more extensive study in its response to the Brennan Center FOIA lawsuit. If such a thing did exist, the government presumably would have had to reveal it in the response, even if it also claimed "presidential communication privilege" as a justification for withholding it (as it did in the case of the September report).

As Bier points out, the short and perfunctory nature of the final report that supposedly justifies the travel ban reinforces other evidence indicating that the security rationales offered by the administration are not the true reason for the policy. Far from consistently applying "neutral criteria" to all the nations in the world, as Francisco claims, the administration in fact applied its standards in a highly inconsistent manner. The security justification for the travel ban is also weakend by the fact that, in the forty year period for which we have data, no one has ever been killed in a terrorist attack on US soil by an entrant from any of the nations covered by travel ban. Had Travel Ban 3.0 been in place since 9/11, it would not have prevented the entry of a single terrorist (even one who did not commit any attacks on US soil). The risks posed by entrants from the nations covered by the travel ban are actually lower than those posed by native-born Americans.

When Noel Francisco told the Supreme Court that the the travel ban was based on a "extensive" worldwide analysis of security risks that came up with "neutral criteria" on which the travel ban was based, it is likely that he was either misinformed or attempting to deceive the justices. Either way the Court should not give any deference to such assurances from administration lawyers.

The paucity of evidence backing the travel ban strengthens the constitutional case against it. In cases where there is evidence that a seemingly neutral policy was actually motivated by unconstitutional discrimination on the basis of race, ethnicity, or (in this case) religion, the government must prove that it had a legitimate basis for the policy that would have led it to adopt it anyway. The administration claims that the "extensive" worldwide study and the "neutral" criteria developed as a result of it qualify as such a rationale.

If the supposedly extensive analysis doesn't actually exist, and the "neutral" criteria are not being consistently applied, that makes it even more likely that Trump's true motive in adopting the travel ban was to make good on his "Muslim ban" campaign promise. It also suggests he was telling the truth when he repeatedly said that the "territorial" policy embodied in the travel ban is just an extension of the Muslim ban. The nations included in the ban were chosen because they are overwhelmingly Muslim, not because entrants from those countries pose any special security risk. For reasons I summarized here, the inclusion of North Korea and a few Venezuelans in the ban does not alter this conclusion, since their addition to the list bars almost no entrants who might otherwise have come in. The fact that the policy does not cover all the Muslims in the world also should not be decisive.

The administration's defenders argue that the government deserves special deference in immigration and national security cases. In an amicus brief I coauthored on behalf of several fellow constitutional law scholars, we argue that such special deference is unwarranted because the First Amendment's restrictions on religious discrimination constrain federal power over immigration no less than all other exercises of federal authority. A long history of cruel, abusive, and often bigoted policies also shows that it is dangerous to give special deference in immigration and national security cases. But even if some degree of special deference is generally appropriate, it should not apply in a case where there is strong evidence that the government is not acting in good faith. The main justification for deference is the executive's special expertise on national security matters. But that expertise is irrelevant in a case where national security is not the true motive for the policy in question.

The travel ban litigation is not the first time an administration has tried to mislead the Supreme Court about the true motives for a discriminatory policy defended on national security grounds. In the now-notorious 1944 Korematsu case, the Justice Department claimed that Franklin D. Roosevelt's policy of forcibly interning over 100,000 Japanese-Americans was motivated by security considerations, rather than racism, and in the process withheld evidence indicating that the military did not consider the Japanese-Americans to be a genuine threat. The Justice Department belatedly admitted this deception in 2011. Ironically, the then-acting Solicitor General who issued the 2011 apology, was Neal Katyal, who currently represents the state of Hawaii in the case against the travel ban.

Perhaps a future administration will someday apologize for the government's misconduct in the travel ban case. In the meantime, we must hope that the Supreme Court will not let the government get away with it this time around.

From Rick's post:

Rather than order Trump to comply with an injunction (which is immediately punishable by the power of contempt), the court instead used a declaratory judgment, simply declaring that Trump is violating the law. "Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants' categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared."

Rick adds some more on the subject; I'd also add that, if Trump appeals (as seems likely), and doesn't want to unblock the plaintiffs while the appeal is pending, the absence of an injunction makes it unnecessary for him to ask for a stay of the judgment pending appeal. Had there been an injunction, it would have been immediately binding, and Trump and his staffer Daniel Scavino would have had to comply right away, unless a stay was issued. But a declaratory judgment doesn't have such binding effect. (In theory, if Trump doesn't immediately unblock the plaintiffs, and insists on waiting until the outcome of the appeal, the plaintiffs could go to court to ask the judge to issue an injunction; but that seems unlikely, so long as Trump's not unblocking the plaintiffs seems to stem from a good-faith attempt to get an appellate judgment on the matter.)

Starting this fall, the U.S. Court of Appeals for the D.C. Circuit will provide livestream audio of almost all oral arguments. A statement released by the court reads:

Chief Judge Garland announced today that the Court has voted to live stream audio of all oral arguments, except when classified or sealed matters must be discussed. The Court has been live streaming audio of oral arguments upon request since October 2017. Chief Judge Garland stated that "this is an important additional step in bringing transparency to our proceedings."

The court will also post audio recordings of oral arguments by 2pm on the days of argument for those who miss the livestream. [Update: As I should have noted in the initial post, the posting of same-day audio is not new for the D.C. Circuit. It has been doing this in most cases since 2013.]

Meanwhile, a few blocks away at One First Street, oral argument audio is not released until the Friday after argument. Even though the Supreme Court has released same-day audio without incident or problem in high-profile cases, the justices remain reluctant to allow people to hear the Court's arguments the day they are delivered.

Whatever the merits of livestreaming (or argument video) the Supreme Court's policy is unduly and unreasonably restrictive. Perhaps the new openness of the D.C. Circuit will help induce a change.

In our 217th episode of The Cyberlaw Podcast, the blockchain and cryptocurrency team seizes control of the podcast again.

Alan Cohn hosts another of the podcast's periodic deep dives into all things blockchain and cryptocurrency to discuss recent regulatory developments and the current state of play of the industry.

Our episode begins by looking at the Department of Treasury's letter regarding initial coin offerings ("ICOs"). Jack Hayes tells us the key takeaways from the letter, including that persons engaged in ICOs could be considered a Money Transmitter under FinCEN's regulations. Not only does the letter address companies based in the US that are issuing tokens, but also those based outside of the US that may have a substantial part of their business in the US or be issuing tokens to US persons. The idea that FinCEN can reach outside of the US border is not a new one. Last summer we saw a civil enforcement action against BTC-e, a foreign cryptocurrency exchange.

Jack and Alan also discuss the New York Attorney General's recent voluntary transparency questionnaire sent to both US and non-US cryptocurrency exchanges. New York has seen its fair share of controversy with respect to cryptocurrency with the implementation of the BitLicense and the resulting exodus of a number of cryptocurrency companies.

Lisa Zarlenga provides an expert overview of the Internal Revenue Service's ("IRS") activity in the space starting with IRS Notice 2014-21. For tax purposes, convertible virtual currency ("CVC") is treated as property, which means that every time you buy or sell CVC you are engaging in a taxable event and need to report capital gains or losses. The Notice did not provide much guidance on accounting for and determining basis of cryptocurrency. Lisa also discusses whether exchanging one cryptocurrency for another cryptocurrency is a like-kind exchange and how the 2018 Tax Reform Bill changes things. With the increasing popularity of airdrops, Lisa and Alan tell us about the tax treatment of tokens received during an airdrop.

Chelsea Parker discusses trends coming out of New York Blockchain Week 2018. Consensus 2018 was three times bigger than Consensus 2017 and there were almost three dozen other official conferences and events that were part of NY Blockchain Week. Needless to say, interest in blockchain appears to be at an all-time high, and there was a particularly high international presence. Government officials from countries such as Gibraltar and Bermuda highlighted their proactive steps to implement regulation while still encouraging innovation and protecting consumers. This idea of balancing regulation while still encouraging innovation was a common theme across panels.

Alan highlights Steptoe's panel "Blockchain in Supply Chain, Navigating the Legal Waters" and the key questions discussed during Alan Cohn and Lisa Zarlenga's presentations on the tax treatment of digital currencies and tokens at the Accounting Blockchain Coalition's conference. Finally, the panelists highlight where they see the industry going next in terms of adoption and regulation. Lisa discusses the possibility of additional guidance from the IRS while Jack discusses the future of sovereign cryptocurrencies and the resulting regulatory challenges.

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

Download the 217th Episode (mp3).

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