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On Thursday, May 26, at 6:30, I will be speaking at the National Constitution Center on the “confirmation battle,” which at the present moment looks more like a stalemate.

Former federal appeals judge Timothy Lewis of Schnader Harrison Segal & Lewis LLP and law professors Josh Blackman of the South Texas College of Law, National Constitution Center Scholar-in-Residence Michael Gerhardt, and David Strauss of the University of Chicago Law School assess the Supreme Court confirmation process and the debate over President Obama’s nomination of Judge Merrick Garland to the high court. Jeffrey Rosen, Center president and CEO, moderates.

I will use this opportunity to discuss a piece on the confirmation process and originalism, that I am working on with Randy Barnett.

I hope to see you there.

On Thursday, May 19, the Heritage Foundation hosted an event on Justice Scalia’s legacy. Noel Francisco gave a touching keynote. My discussion on Justice Scalia’s dissents, and the separation of powers, begins at 28:20. After I speak, Stephanos Bibas spoke about Scalia’s criminal procedure cases, and Rick Garnett discussed the freedom of religion. It was a heartfelt and thoughtful tribute to Nino.

E-Ventures Worldwide filed suit against Google for removing its web site from Google’s search listings. The company alleged a violation of the Lanham Act, and several state tort claims. Google (as it has done before) defended its decision to exclude E-Ventures’ site, claiming that the company violated its Terms of Service. As a result, Google’s First Amendment rights protected that decision to include or exclude content.

The District Court rejected Google’s Motion to Dismiss on the First Amendment claims. M.D.Fl. distinguished the output from Google’s “page rank” sorting algorithm–which other courts have recognized are protected by the First Amendment–with its decision to remove a site for a Terms of Service violation. Here is the key part of the analysis:

The Court has little quarrel with the cases cited by Google for the proposition that search engine output results are protected by the First Amendment. Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014); Langdon, 474 F. Supp. 2d 622; Kinderstart v. Google, Inc., No. C06-2057JF(RS), 2007 WL 831806, at *1 (N.D. Cal. Mar. 16, 2007); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 WL 21464568, at *1 (W.D. Okla. May 27, 2003). The Court finds these cases persuasive that Google’s PageRanks are pure opinions of the website’s relevancy to a user’s search query, incapable of being proven true or false. While a claim based upon Google’s PageRanks or order of websites on Google’s search results may be barred by the First Amendment, plaintiff has not based its claims on the PageRanks or order assigned to its websites. Rather, plaintiff is alleging that as a result of its pages being removed from Google’s search results, Google falsely stated that e-ventures’ websites failed to comply with Google’s policies. (Doc. #75, ¶¶ 66, 88-89, 92.) Google is in fact defending on the basis that e-ventures’ websites were removed due to e-ventures’ failure to comply with Google’s policies. (Doc. #78.) The Court finds that this speech is capable of being proven true or false since one can determine whether e-ventures did in fact violate Google’s policies. This makes this case distinguishable from the PageRanks situation. Therefore, this case does not involve protected pure opinion speech, and the First Amendment does not bar the claims as pled in the Second Amended Complaint.

(NB: My article, What Happens if Data is Speech, was cited in Zhang v. Baidu).

The court further rejected Google’s claim that the exclusion of the site is protected by Google’s editorial judgment, because the decision was made for “anti-competitive motives”:

Google also argues that its search results are editorial judgments protected by the First Amendment. (Id. at 13.) While publishers are entitled to discretion for editorial judgment decisions, plaintiff has alleged that Google’s reason for banning its websites was not based upon “editorial judgments,” but instead based upon anti-competitive motives. (Doc. #75, ¶ 18; Doc. #79, p. 11); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 386 (1973); Ragin v. New York Times Co., 923 F.2d 995, 1003 (2d Cir. 1991); Levitch v. Columbia Broad. Sys., Inc., 495 F. Supp. 649, 662 (S.D.N.Y. 1980) (“[A]bsent such purely editorial conduct, plaintiffs’ claims must be tested against the normal pleading requirements applicable in federal court.”). Further, a fact published maliciously with knowledge of its falsity or serious doubts as to its truth is sufficient to overcome the editorial judgment protection afforded by the Constitution. Pittsburgh Press Co., 413 U.S. at 386.

I am not familiar with the “anti-competitive motive” exception to the First Amendment, so I’ll reserve judgment for now.

 

On Friday, I participated in a Federalist Society teleforum on the district court’s decision in House of Representatives v. Burwell. You can listen to the podcast here.

An advisor to Hillay Clinton said that Heller was “wrongly decided.” But she has absolutely no idea what the case held.

“Clinton believes Heller was wrongly decided in that cities and states should have the power to craft common sense laws to keep their residents safe, like safe storage laws to prevent toddlers from accessing guns,” Maya Harris, a policy adviser to Clinton, said in an e-mailed statement. “In overturning Washington D.C.’s safe storage law, Clinton worries that Heller may open the door to overturning thoughtful, common sense safety measures in the future.”

The critical, constitutional issue, was whether the District of Columbia could ban the private ownership of handguns. The case in no way affected “safe storage laws.” In fact, the District of Columbia still has safe storage laws in effect.

From the Metropolitan Police Department’s website:

The law requires that no person shall store or keep any loaded firearm on any premises under his control if he knows or reasonably should know that a minor under the age of 18 is likely to gain access to the firearm without the permission of the parent or guardian of the minor unless such person . . .  Keeps the firearm in a securely locked box, secured container, or in a location which a reasonable person would believe to be secure.

If Ms. Harris is going to criticize a Supreme Court decision, she should have some clue what the case is about.

(I have my doubts about whether such a law is in fact constitutional, but Heller in no way affected such a law).

Update: In Heller, the Court also considered the constitutionality of the D.C. trigger-lock law. This is different from a “safe storage law.”  The Heller Court described the law in this fashion:

District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or
bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities.

Under safe-storage laws, guns are to remain operable, but must remain in a secured case or box.

At the time, the only guns that could lawfully be owned in D.C. were certain long guns, or handguns that were owned before the ban went into effect.

For example, Dick Heller owned a firearm from the 1970s, but was not allowed to remove the locks. The instant he removed the lock–even if it were for self-defense–he would have broken the District of Columbia’s law.

Even assuming that Harris simply used the wrong term, her answer lets on more than she would like.To say that the problem with Heller was that it invalidated some sort of safe-storage law, presupposes that a resident of the District of Columbia had a constitutional right to own a gun in the first place. If you adopt the dissent’s view, D.C. could have banned ownership of handguns all-together. The storage law was an added benefit.