The Sport of Attacking Law Review Editors

Earlier this week, Gail Heriot at the Volokh Conspiracy wrote a post criticizing the editors of the Emory Law Journal for refusing to publish an invited article after the author, Larry Alexander, refused to make substantial edits to the piece. Initially, Heriot did not include a copy of the article in her post--it was unclear if she did not have access to it or if she simply declined to do so. Instead, Heriot provided a paraphrased version of portions of the article and some heavily edited quotes from correspondence sent by the Editor-In-Chief to Alexander. Heriot called out the Editor-In-Chief by name--a classy move that was repeated by others (here and here, for example) who jumped on the bandwagon to criticize the decision. 

Here's how Heriot portrayed the Editor-In-Chief's reason for rejecting the article absent substantial revisions:

[The Editor-In-Chief] wrote that the ELJ Executive Board had "unanimously stated they do not feel comfortable publishing this piece as written." "We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive." "Additionally," she wrote, "there are various instances of insensitive language use throughout the essay (e.g. widespread use of the objectifying term 'blacks' and 'the blacks' . . .) . . . ."

And here is Heriot's dissection of this reasoning:

(If the term "black" in reference to African Americans is "objectifying," a lot more than just Larry's essay will need to be canceled. As for "the blacks," I have been told that some consider this to be a rude way to refer collectively to the members of a race. But, even assuming that it would be rude, Larry wasn't using the term that way. He was using it to refer to the particular blacks in one of his hypotheticals. The "the" was intended to make that clear.

In addition to the other bloggers noted above, other scholars leaped to Alexander's defense. Keith Whittington called out the Emory Law Journal's "terrible behavior." Andy Grewal admitted that he hadn't read Alexander's essay, but decided that the incident was enough to stoke fears over the specter of ideological tests for journal content. 

Several hours after Heriot's initial post, Eugene Volokh added his own note at the top of her post with a link to Alexander's article. Here it is--if you dare.

At first, the article appears salvageable--it certainly takes a conservative view towards disparate impact theory and includes legion instances of the "blacks" language that Heriot noted in her initial characterization. But then we get to Part III in which Alexander veers off into an opinionated diatribe on why systemic racism does not exist and is not a problem. Some selections:

One hears a lot these days about so-called “systemic racism.” That term is usually not defined, nor are the “systems” that it refers to identified. 

One such “system” is that of apprehending, trying, and punishing those who murder, rape, rob, burglarize, and batter. It is difficult to see how that “system” is in any way “racist.” One may, of course, object to particular criminal laws, including some that have a disproportionate impact on blacks.30 But that would be a retail objection, not a wholesale objection to the “system” of criminal justice.

[Footnote 30]: A number of criminal laws, including, for example, the various laws against acts of violence, have a disproportionate impact on blacks. But that is because blacks violate those laws disproportionately.

. . . 

There are many causes for why races, however defined, are not proportionately represented in all domains. Asians, for example, are “overrepresented” in science, medicine, and technology. This may be due to native intelligence, cultural preferences, educational diligence, or some combination of factors. The same things may explain the disproportionate number of Jews in the professions, or the disproportionate number of blacks in professional sports. There is nothing racist in the selection processes in any of these fields of endeavor.  [emphasis added]

. . . 

Had there been no slavery, the ancestors of today’s U.S. blacks would have remained in Africa, most often as the slaves of other African tribes. And even more basically, in the absence of slavery, today’s individual blacks would not exist. That is, although blacks might exist in the U.S., the ones who actually exist here would not exist at all. For each of us is the product of a particular sperm and egg. Change the circumstances of conception ever so slightly, and a different individual is created. And slavery caused more than slight changes in the circumstances of conception that would have existed in its absence. Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off. People might be better off today had there been no slavery, but none of us, blacks included, would be.

. . . 

The real impediment to the advancement of poor blacks – and everyone knows this, regardless of whether they admit it – is the cultural factors that have produced family disintegration, which in turn portends poor educational achievement, crime and poverty. And this problem will only be worsened by reparations, which sends the message that the predicament of poor blacks is others’ fault, that blacks are victims, and that they have no control over their fate.

Once a link to the article was posted, commentators began to speak out in favor of the Emory Law Journal's decision, noting that it exercised reasonable editorial judgment in rejecting an unsupported and needlessly offensive article. Many of Alexander's initial defenders have not reacted to criticism of the article itself, likely out of the hope that by staying silent their defense will be forgotten. Still, some persist, including Robby Soave at Reason who neglects to cite to or attempt to defend Alexander's article, and this incredible post by William Jacobsen (yet another law professor!) who claims that Alexander's article is "not incendiary" and that "[i]t was hard to find the “controversial” portions to excerpt." He then goes on to include lengthy excerpts from the article, none of which include the excerpts quoted above.

Despite Jacobsen's laughably selective excerpting of the article, his post includes some helpful additional information, including what appears to be an unaltered communication from the Editor-In-Chief of the Emory Law Journal to Alexander regarding their concerns with his piece. Here it is:

Hi Professor Alexander,

Thank you for reading the memorandum and considering our edits. I shared the piece with my Executive Board, and they unanimously stated they do not feel comfortable publishing this piece as written. We think there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer. However, we believe this piece would need to be greatly revised to be published in our journal.

We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive. Additionally, there are various instances of insensitive language use throughout the essay (e.g., widespread use of the objectifying term “blacks” and “the blacks” (pages 2, 3, 6, 8, etc.); the discussions on criminality and heredity (pages 11 and 14), the uncited statement that thankfully racism is not an issue today (page 18)). And, crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.

Can you please modify the piece, removing Part III and focusing on building Parts I & II to discuss the merits of Professor Perry’s work, by Sunday, December 19? We would welcome a manuscript revised along the lines we have suggested, but, absent those revisions, ELJ will not publish this contribution to the festschrift.

Recall that Part III, excerpted above, includes the most flagrant instances of unsupported, incendiary commentary. Additionally, this full communication reveals that Heriot's quoted version at the top of this post was wildly misleading--emphasizing the portions of the communication that were most likely to stoke conservative outrage, and omitting many of the cited bases for demanding revisions.

Jacobsen also quotes Alexander's measured response:

I refuse to eliminate Part III or to modify my language. I cannot believe the censorious tone you are taking towards an invited symposium participant. You don’t have to agree with what I’ve written, but what I’ve written I stand behind.

For what it's worth, I will be copying Alexander's response and using it as a form reply to any partners who attempt to edit my briefs from now on.

The fallout from the Emory Law Journal's decision and the incomplete initial coverage of it continues. At this point, the bulk of the commentary appears to be on the side of the journal--affirming that the editors were within their rights to reject an invited article that turned out to be filled with unsupported nonsense after the author refused to revise away the nonsense. Had the article been published, these same commentators likely would have excoriated both Alexander and the law journal for writing and publishing such a piece.

This likely reaction, and the initial reaction of Alexander's defenders, are examples of the all too common practice of professors criticizing the student editors of law reviews for their editorial capabilities. Starting with Fred Rodell's 1936 article, "Goodbye to Law Reviews," law professors have developed a sub-genre of academic legal literature in which they do little more than criticize the legal publication process itself. Many of these professors are flippant or extreme in their criticism, describing student editors as "incompetents," noting editors' "ignorance, immaturity, [and] inexperience," claims that student editors are uninformed and characterizing the Harvard Law Review's efforts to "ensure adequate representation of minorities and women" as "the fall of the citadel," and others.

These examples are only some of those that have made it into published scholarship. On social media, many professors demonstrate an almost reflexive instinct to criticize the capability of student editors and to lament the state of legal scholarship. To some extent, this instinct is understandable. Decisions over hiring and tenure are largely based on the quantity and placement of professors' scholarship, and for that to be largely in the hands of student editor is a source of frustration for current and prospective professors. Still, when critiquing student editors, law professors often neglect to mention their responsibilities as educators of these students and fail to recognize that they are essentially attacking their own students when they attack journal editors. 

(As an aside, professors and fellows should not discount the significant, innate value in having their name associated with any academic institution when trying to publish legal scholarship. Practitioners like me who are not associated with any law school have the privilege of submitting pieces branded with the "Independent" label--a red flag that many editors likely equate with unserious scholarship. (For evidence and further discussion of this, see here.))

The initial reactions to the Emory Law Journal's decision reflect the eagerness of certain professors to attack their students, as well as the impossible standards to which student editors are held. Without reading the article, multiple professors summarily concluded that the journal had imposed an ideological test on Alexander's submission. After all these are students--why should they be expected to act professionally? Now that article itself has been revealed, it is apparent that the Emory Law Journal exercised good editorial judgment. None of the original critics have recognized this, though, as they have either chosen to double down or remain silent.

And one should not overlook the fact that multiple professors also called out the Editor-In-Chief by name. It is shameful and unprofessional for professors to gang up on a student, even though it should be clear to most that the student was in the right. Those who initially criticized the Emory Law Journal's correct decision not to publish such shoddy scholarship should acknowledge that the editors made the right call. Should they simply remain silent, they should be held to account for the contents of the article itself.

This incident with the Emory Law Journal is revealing. It reveals the candid views of scholars like Alexander and the shoddy arguments they are willing to make in support of their worldviews. It reveals the willingness of (often) conservative critics of legal scholarship to rush to conclusions of bias without seeing all of the relevant facts. And it is a dramatic instance of the all-too-common instinct of professors to bash law review editors. If this messy incident is to have any silver lining, perhaps it can serve as an opportunity for professors to reflect on their scholarly and public treatment of law review editors and to focus on productive reforms rather than bashing their students.

If a Theory Tends Toward Abuse, It's Probably a Bad Theory

Over at the Originalism Blog, David Weisberg writes about Michael Ramsey's post arguing that originalism has constrained the Supreme Court from actively outlawing abortion on Constitutional grounds. I criticized Ramsey's post here.

Ramsey was responding to Paul Waldman, who wrote in the Washington Post that Supreme Court nominees lied when they testified at their confirmation hearings that originalism was a neutral judicial philosophy. As Weisberg characterizes it:

Paul Waldman, writing in the Washington Post, claims that the recent arguments in Dobbs reveal that Trump’s three Supreme Court nominees perpetrated “a lie, scam, con” when they testified that originalism, as they understood it, was a judicial philosophy that was neutral as to the outcome of any particular legal case or issue.  That is not a criticism of originalism.  It is instead a criticism of particular individuals who identify as originalists.

Originalists often defend their theory against criticism that judges and Justices fail to properly implement it by claiming that this a problem with practice rather than theory. Some have gone so far as to argue that originalism as a standard should be entirely divorced from considerations of implementation.  

Weisberg returns to this theme later in his post:

When one questions the good faith of the practitioners of a legal theory, rather than analyzing and criticizing the legal theory itself, a disheartening symmetry emerges.  Each side can say of the other: we do not believe that the reasons stated in your judicial opinions or your scholarly articles are your true reasons; the one true reason is your policy preference.  Similarly, each side can say: in deciding Case X, we did not adopt the most extreme position on the spectrum of policy preferences; this proves our decision is grounded in law and not in policy preference.  And the “liberal” side says that weakening or overturning Roe is a step toward a future originalist decision that the Constitution bans abortions in almost all circumstances, while the “conservative” side says that Roe itself is a first step toward a future living-constitutionalist holding that the Constitution prohibits any federal or state regulation of abortion.

Both of the claims Weisberg makes fail to make a resounding case for originalism.

If an interpretive theory tends toward abuse, it is probably a bad theory. A theory of constitutional interpretation may, by its nature, lend itself to misapplication or use as a cover for political goals. It's a blanket assumption for most originalists that the broad family of theories that they label "living constitutionalism" (read: just about anything other than originalism), are such theories. Living constitutionalism tends to result in its adherents simply applying their policy preferences rather than engaging in interpretation. A substantial component of originalism's popular appeal is that it supposedly sidesteps this problem. The original public meaning of the Constitution is a verifiable Truth that can guide decisionmakers and prevent them from resorting to deciding cases based on their political whims. 

To be sure, this characterization of originalism versus living constitutionalism is an oversimplification of the academic literature. Much has been written by academics on various sides of the debate arguing for other normative reasons to accept originalism over alternate theories. But this discussion is largely isolated in the academic sphere. In politics and popular discussion, originalism continues to be praised for its constraining power--how it prevents "activist" judges from "legislating from the bench." At least, this is how originalism is praised when it is not used as a barely-concealed synonym for promising conservative results.

If originalism gets its appeal (or a substantial portion of its appeal) from its ability to constrain judges from deciding cases based on policy preferences, then it is concerning if judges use the theory as a cover to reach decisions based on political preferences. This is supposed to be the outcome that originalism should prevent, after all. Weisberg claims that this type of criticism can be leveled against practitioners of any theory, but this isn't always the case. Some theories of interpretation may call for readings of constitutional provisions that lead to certain types of policy outcomes or that have certain practical results. Such an approach would be unacceptably political if explicitly employed by a self-proclaimed originalist, but it defines the approach of the other interpreter. A theory of interpretation that largely is based on policy considerations is not mis-implemented when a judge decides cases based on those considerations. There may be other reasons for disliking the theory--but disingenuous implementation and a lack of transparency is not one of them.

But politicized decision-making is a problem for theories that purport to be neutral--particularly for theories like originalism that gain much of their popular appeal from claiming to be neutral. If a theory, by its nature, tends to be abused in practice--if, when implemented, it consistently results in decisions in line with political preferences rather than its proclaimed neutral principles--this is a problem for the theory. And as much as the theory's proponents may point to instances of misapplication of the theory as problems with judicial actors rather than the theory itself, these instances are evidence that the theory itself tends toward misapplication and abuse. If a purportedly neutral theory ends up being misapplied most of the time, that's a reason to have second thoughts about the theory itself. After all, all of this theorizing about law and interpretation doesn't have an impact on the real world until a court applies the theory.

I've argued elsewhere that originalism tends toward abuse--primarily to the extent that it cannot be rigorously and feasibly implemented, and that this leads to decisions based on other, largely political, considerations. Those like Weisberg who would dismiss this criticism as a problem with practitioners rather than the theory itself forget that law is shaped and enforced by practitioners. Losing this perspective all too often results in ignoring reality for the sake of theory and failing to appreciate the real world implications and consequences that motivate these discussions in the first place.

Originalism is Neutral Because the Court Hasn't Outlawed Abortion Everywhere?

That seems to what Michael Ramsey argues in response to this column by Paul Waldman.  Waldman argues (fervently) that conservative justices vote their political preferences and are not constrained by purportedly neutral theories of interpretation:

It was all a lie, a scam, a con: the assurances that they were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”

Somehow that philosophy nearly always produces results conservatives want: undermining voting rights, enhancing corporate power, constraining the rights of workers, enabling the proliferation of guns, and now most vividly, allowing state governments to force women to carry pregnancies to term against their will.

Ramsey takes issue with this:

But the abortion case actually shows the opposite of Waldman's claim.  The conservative legal movement doesn't want just to overturn Roe; it (or at least part that cares most about the issue) wants to outlaw abortion.  In Dobbs, though, at most the Court may merely withdraw the constitutional bar on abortion restrictions so that the question can be resolved by the political branches. 

Why not do more?  Why wouldn't the Court rule that states that permit abortion violate the Constitution?  If the conservative Court really believes it can "legislate from the bench" to "produce[ ] results conservatives want," isn't that the outcome we would expect?

Surely the Constitution can accommodate that conclusion.  As many on the left have argued, the Constitution's due process and equal protection clauses are open-ended and can be read to appeal to broad principles to be applied in light of contemporary morality and policy.  If, as anti-abortion conservatives believe, human life begins at conception or some point near to it, an aggressive living-constitutionalist conservative could find in those clauses a protection for unborn life.  Far less plausible claims have been made and accepted by courts on behalf of the policies of the left.

The conservative originalist Justices on the Court are not going to rule this way, and Justice Scalia -- as firmly anti-abortion as anyone -- never considered it.  The reason is originalism.  Though a few scholars have argued to the contrary, the overwhelming mainstream originalist position, among both scholars and judges, is that the Constitution's original meaning does not protect unborn life.  (See here from Jonathan Adler: Why the 14th Amendment Does Not Prohibit Abortion.)  It is the Justices' commitment to originalism and textualism that prevents them from legislating from the bench to achieve conservative policy goals in the abortion debate.  (And originalism is criticized by some conservatives on this ground.)

Ramsey claims that originalism is what prevents conservative Justices from affirmatively outlawing abortion. But this is what overturning Roe would do, to a significant extent. If the Court overturns Roe by upholding a ban on abortion, the effect is that abortion is banned in the affected jurisdiction.  Not only that, but it's immediately banned in 21 other states as well. Overturning Roe has the practical impact of banning abortion immediately in nearly half of the states. 

Sure, it isn't a nationwide ban. But once Roe is overturned, how soon will it be until there is federal legislation to ban abortion nationwide? From betting that's going on in academic spheres, it look like the expectation is a couple of days. With Roe out of the way, lobbying and support for such a law will redouble, backed by assertions that it has the Court's blessing. I hope that this is a pessimistic view of things--maybe the overturning of Roe will light a fire under democrats and prompt them to take action. But I'm not optimistic this will happen.

Such a federal law wouldn't be a constitutional decree. But under this chain of events, the conservative Justices' goal of outlawing abortion would be achieved with no other Court action beyond overturning Roe v. Wade. The Court would not suffer the institutional loss of credibility that an aggressive, constitution-based ban on abortion would entail. The Court would therefore be free to support conservative policies and goals under the guise of originalism's neutrality in any number of other cases and contexts.  Ramsey claims that a refusal to affirmatively outlaw abortion on constitutional grounds is evidence of originalism's constraining effect. A far more plausible explanation is that conservative justices want to preserve their influence and credibility, and can do so at no cost, since most of the work they want to see done will be done for them by other political actors.

Just because the Court doesn't take an immediate and drastic turn to the right and capitulate to the wildest dreams of the most extreme conservatives does not prove that originalism is the neutral, constraining principle that its proponents claim it to be. Claiming that this is what must be demonstrated to prove that originalism covers up political decisions is a disingenuous tactic that moves the goalposts and ignores political context.

Originalism and Selective Historic Reference Points

A little over a week ago, Michael Dorf wrote an article in Verdict regarding oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen. This is the Supreme Court's most significant Second Amendment case since McDonald v. City of Chicago, in which the Court incorporated the Second Amendment, holding that it applies against state restrictions on the right to keep and bear arms. The Supreme Court's prior opinion in District of Columbia v. Heller, two years before, had only held that the Second Amendment applied to federal restrictions. 

New York State Rifle & Pistol Association, like McDonald, involves a non-federal restriction on firearms. Most rights included in the Bill of Rights have been incorporated to apply against state and local governments--with the Supreme Court basing this incorporation in the Fourteenth Amendment's Due Process Clause. Justice Thomas has previously argued for an alternate approach to incorporation, arguing that the Privileges or Immunities Clause of the Fourteenth Amendment is the basis to apply the Second Amendment (and other rights enshrined in the Bill of Rights) against the states.

Dorf focuses on a question that Justice Thomas asked during oral argument:

Attorney Paul Clement argued the case for the plaintiffs. He contended that “history and tradition” supported his position. Justice Thomas, who, more than any of his colleagues, espouses originalism, understood Clement’s invocation of history to imply that the Court should look at what the constitutional text meant to the People who ratified it. But that then raised a question. Justice Thomas asked: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”

Clement, a former Solicitor General of the United States, is an excellent lawyer, so he gave the answer that best served his clients: it doesn’t matter. Whether you look at the original public meaning in 1791, when the Second Amendment was ratified, or at the original public meaning in 1868, you will find the same answer: a right of generally law-abiding citizens to carry firearms in public.

Is that right? As I discussed in an article published in the Northwestern University Law Review earlier this year, there is reason to believe (and sources cited in footnote 37 of my article conclude) that the People who ratified the Second Amendment understood its language to prevent the federal government from disarming state militias but not to have many implications for individual firearms possession, while the People who ratified the Fourteenth Amendment in 1868 understood at least some kind of individual right to keep and bear arms to be among the privileges and immunities that the provision secured against state interference. (emphasis added).

Dorf notes that the Court, both historically and now, has refused to find that constitutional amendments incorporated through the Fourteenth Amendment offer differing limits on the power of state governments compared to the federal government:

Most of the cases incorporating provisions of the Bill of Rights against the states arose during the 1960s. During that era, the Justices debated whether the Fourteenth Amendment incorporates Bill of Rights provisions against the states in exactly the way they apply to the federal government—a position sometimes called “jot-for-jot” incorporation—or whether in some instances the incorporated right might have different implications for the states.

We have already encountered one reason why a right might be different as applied to the federal government and the states: perhaps by the time the People ratified the Fourteenth Amendment in 1868, their understanding of the right had changed from the views that prevailed when the original Bill of Rights was ratified in 1791. Federalism provides another explanation: within broad bounds, each of the fifty states might be permitted some leeway in light of distinctive traditions and variations in their legal systems.

Despite the appeal of history and federalism, the Court eventually settled on jot-for-jot incorporation. Indeed, just last year, in Ramos v. Louisiana, Justice Neil Gorsuch, writing for the majority, decisively “rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights” (citations and internal quotation marks omitted). In Ramos, the Court held that the Fourteenth Amendment’s incorporation of the Sixth Amendment’s right to jury trial in criminal cases precludes conviction based on a non-unanimous jury decision in state court, just as in federal court.

Dorf notes that Thomas, as well as other justices who've authored or signed opinions regarding the scope of incorporated amendments (including Justice Gorsuch in Ramos) claim to be originalists. I've written about originalism before, both here and in longer work. Most modern versions of originalism hold that the meaning of the Constitution and its amendments are fixed at the time of ratification, and that the original public meaning of those provisions at the time of enactment is the same meaning that should be applied today. That notion of fixed meaning (sometimes described as the "fixation thesis") is accepted by most modern academic originalists.

But if meaning is fixed at the time of ratification, then most of the amendments in the Bill of Rights likely apply differently against state and local law than they do against federal laws. That's because these amendments don't apply directly to state laws. Instead, they apply to states via the Fourteenth Amendment, which was ratified 1868--many years after the amendments were originally enacted at the end of the 1700s. During those years, the public's understanding of the often broad, abstract, and value-charged language of these amendments likely changed to some degree. And yet, self-proclaimed originalists on the Court pay little mind to this--indeed some have explicitly rejected it. Take McDonald, the case that incorporated the Second Amendment against the states. There, Justice Scalia--recognized as the highest profile originalist to sit on the court--joined in the portion of Justice Alito's opinion that explicitly rejected the notion that the Fourteenth Amendment may provide a different level of protection to the right to bear arms:

[Justice Stevens] would hold that "[t]he rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights." Post, at 3093.

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice STEVENS' theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents.

Justice Thomas, it should be noted, did not join in this portion of the opinion.

Alito's view is hardly without historic support. The Court has long refused to recognize differing levels of protection by the Fourteenth Amendment, warning against a potential dilution of protection against state law enforcement compared with federal law enforcement and raising the specter of incongruous enforcement of constitutional rights against different government actors. Take Justice Brennan's opinion for the Court in Malloy v. Hogan:

The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights," Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (dissenting opinion). If Cohen v. Hurley, 366 U. S. 117, and Adamson v. California, supra, suggest such an application of the privilege against self-incrimination, that suggestion cannot survive recognition of the degree to which the Twining view of the privilege has been eroded. What is accorded is a privilege of refusing to incriminate one's self, and the feared prosecution may be by either federal or state authorities. Murphy v. Waterfront Comm'n, post, p. 52. It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified. (emphasis added).

Incongruous as such a legal regime would be, it would at least be an originalist one. Refusing to apply two different standards rejects the fixation thesis in favor of the broader goal of a consistent set of rules governing the scope of constitutional amendments. This goal may be sensible, but it isn't consistent with originalism. And this ignorance of basic originalist principles may not always be in the service of such noble goals, as Dorf argues:

To be sure, in Ramos, as in McDonald, Justice Thomas concurred separately to insist that the Privileges or Immunities Clause, rather than the Due Process Clause, does the work of incorporation. But for him as well as his colleagues, originalism—which allows for changed meanings between 1791 and 1868—stood as no obstacle to full incorporation, which they favored on what pretty clearly appeared to be policy grounds.

In that respect, the irrelevance of Justice Thomas’s question—1791 or 1868?—jibes with everything else we know about originalism. In the most hotly contested cases that come before the Supreme Court, arguments rooted in original meaning typically serve a rhetorical function. Justices invoke them to justify decisions taken on other, ideological, grounds.

What are the implications of all of this? 

First, it suggests that as much as originalist scholars may argue in favor of originalism, these arguments seem to have little impact on the Court's actual practice, which consistently ignores (and is based in a history of ignoring) the notion that constitutional provisions' meanings are fixed at the time of enactment. Originalists may respond that failures to appropriately apply originalism should not count against the theory itself. Indeed, some argue that the recognition of such failures by the professoriate turns out to be a point in favor of originalism. Leaving a thorough response to that peculiar defense for another day, I will note for now that if the Court continues to consistently misapply originalism (and reach decisions based on the foundation of jot-for-jot case law), there ought to come a point where originalists should ask themselves whether everything they are working for is really worth it. 

Second, the longstanding failure of the Court to recognize that the meaning of constitutional provisions are fixed at the time of reenactment in the Fourteenth Amendment context threatens a recent trend in originalist scholarship arguing for a positivist take on the theory. This "positivist turn" in originalist theory (very broadly and briefly summarized), argues that originalism is our law, and that it should be followed because judges promise to follow the law. If the Court's history of failing to apply the original public meaning of the Fourteenth Amendment forms the basis for a great deal of constitutional law, the thesis that originalism is, in fact, our law is significantly undermined.

Third, the issue of whether to interpret early Amendments based on their meaning at the time of the founding or at the time of the Fourteenth Amendment's ratification represents a subsection of a debate over when the Constitution's meaning should be fixed. For the most part, this debate is sadly limited--originalists argue for fixation at the time of ratification, a few people (and I) argue that provisions should be read based on present public meaning, and the Court apparently favors fixation at the time of the founding, 1868 be damned. But there are more options. Why should we consider the meaning of the Constitution as fixed at any point before the Fifteenth Amendment barred the United States and the states from denying the right to vote based on race in 1870? Why shouldn't the meaning of the Constitution be fixed in 1920 when the 19th Amendment's ratification guaranteed women the right to vote? Some may argue that the Constitution has mechanisms for amendments built in, and that this "potential sovereignty" somehow ameliorates the failure of earlier iterations of the Constitution to accommodate the democratic input of those it governs and protects. But this doesn't account for the fact that determinations of original public meaning tend to focus on the voices of those who played a role in the drafting, adoption, and ratification of constitutional provisions, and that the voices of women and African Americans were absent from these contexts for centuries. Those historically excluded from voting may not want to completely do away with the Constitution and amendments as they're worded, but they ought to have some sort of a say in the meaning of these provisions if we're going to claim with a straight face that the Constitution represents the popular will of a supermajority of Americans.

While I have dozens of depositions and hundreds of other projects and emergencies to worry about over the next few months, I'm sure I'll find the time to write more on these issues. In the meantime, we'll see if any of the Justices make an effort to differentiate between or justify particular historic reference points for their constitutional interpretations when the opinion in New York State Rifle & Pistol Association is eventually issued.

In Praise of Legal Oddities: Explaining My Research Agenda

During my second year of law school and for a few years thereafter, I dove into the world of writing and publishing legal scholarship. I wrote or coauthored seven law review articles from my second year of law school until about a year after graduation. All this while I was going to class, blogging, doing law review and moot court, and (in my third year of law school) working as a TA in undergraduate philosophy classes. 

My writing came to a halt when I began practicing civil litigation. Billable hours, being expected to read and respond to emails at any given moment, and learning the ropes of a new field (after a year doing criminal law) took up virtually all hours of my day. Unable to find a balance between work and free time, the time and energy I needed to write legal scholarship vanished.

After a few years of this (and after a few lateral moves), I ended up where I am now. I'm still busy, and the work is more complex and engaging than ever, but I've been able to strike a better degree of balance at my current firm. Because of this (and because of my need to find a distraction during several particularly difficult evenings of non-billable e-discovery administration work), I decided I'd try to get back into the game of legal scholarship. This led to my first published article in nearly six years--Shooting Fish.

I wrote Shooting Fish for fun--although a need for a thorough study of every state's laws restricting shooting fish with guns also came about due to a desire for completeness after writing an initial, partial draft of the article. It's my hope that the finished product demonstrates how much fun I had writing and researching it. 

Beyond being a fun article to write, and getting a bit of attention from others in the legal community, Shooting Fish reinvigorated my interest in academic writing and research. I began some serious research into originalism and related constitutional issues along with other timely legal topics. But I also kept my eye out for quirky subjects that could be the next fun article--something that could distract from the rigors of everyday work.

Fast-forward to today. I have three more articles accepted for publication, and two others completed and pending acceptance (although my hopes for one of them aren't too high). My writing at this point can be classified into about three rough categories:

1. Writing on legal issues relevant, or tangentially relevant, to my civil litigation practice. This takes up the smallest portion of my recent writing, and consists primarily of my article, The Citation of Unpublished Cases in the Wake of COVID-19. 
2. Critiquing constitutional originalism. My friend Al Hiland and I coauthored Originalism's Implementation Problem, which marks the start of a larger project of critiquing originalism. Our broader project is to undercut originalism as an acceptable theory of constitutional interpretation, and begins with exposing the gaps between academic originalism and "originalism" as described in politics and judicial practice. I've already written another article in this vein critiquing recent work by Stephen Sachs on treating originalism as a standard, rather than implementation procedure, and there are several other outlines and drafts in the pipeline.
3. Legal oddities. Continuing the work that I started with Shooting Fish, I've written two other articles exploring odd and underdiscussed areas of law. I've written a survey of attempts at invoking trial by combat in the United States and England, and I've written about the Third Amendment and how it was invoked in litigation, scholarship, and the media in 2020. I have the most topics and articles in the queue in this category--with plans to write about the use of dreams in evidence, the historic and modern treatment of animals as villains by the law, and (perhaps) a discussion of historic litigation over church pews and how these frequent historic disputes are referenced in modern statutes.

The traditional value of the first two categories of my articles should be fairly apparent. Writing on legal issues related to my litigation work demonstrates that I know what I'm talking about, that I've taken these issues seriously, and is helpful for the firm, which can point to this article as evidence that its attorneys know their stuff when it comes to litigating relevant matters. The originalism scholarship is valuable from a traditional legal academic perspective--originalism is a subject of great debate and volumes have been written expounding various theories and tearing those theories down. Decent scholarship in this area is relevant to high profile cases and political issues, and can demonstrate an author's knowledge of constitutional law and legal theory.

But where is the value in writing about shooting fish, trial by combat, the Third Amendment, and other odd areas of the law? Why is this such a large portion of what I'm writing about?

To start, there's practical and professional value in writing about these issues. It isn't as easy to find the key cases and scholarship for quirky research topics as it is with more mainstream issues like originalism. Researching these issues to the degree necessary to provide a useful, thorough treatment hones my abilities and demonstrates that I, as a litigation associate, am ready to get into the weeds of all sorts of topics. Writing these articles also helps develop my writing skills as a litigator. It's not enough to research the nuances of weird topics, they also need to be presented in a clear and engaging manner to keep the audience's interest. As it turns out, the same is true of writing persuasive motions in litigation. In writing scholarship on legal oddities, I draw on the writing skills I've learned as a litigator and am able to further hone those skills.

There's also academic value in writing about seemingly trivial topics. While shooting fish with guns and demanding trial by combat may, at first glance, seem irrelevant to mainstream legal issues or practice, in-depth discussion of these subjects implicates a wide range of relationships and connections with modern law and important policy issues. Laws against shooting fish with guns have constitutional implications, they can be used to illustrate effective or ineffective methods of drafting statutes, and they have bearing on environmental research and considerations that give rise to these laws in the first place. The Third Amendment illustrates how arguments may be made regarding constitutional rights in a near-vacuum of scholarship and case law, and is frequently cited by courts as an example of the Constitution's respect for privacy, the home, and freedom from government interference in people's daily lives. Exploring the implications that obscure laws and topics have on the broader framework of law and policy reveals new ways of thinking about commonplace issues, new connections between seemingly disparate policy considerations, and gives the reader and writer a more thorough understanding of the legal system.

Ultimately, though, the main reason I write about these topics is because it's fun.

Writing as an associate at a firm, rather than as a fellow or professor, comes with some disadvantages. My job requires long hours, hard work, and--when busy--becomes nearly all-consuming. If I'm going to write legal scholarship, it needs to be in my spare time, and I need to find the motivation to write after practicing law every day. Writing about topics that interest and educate me is enjoyable in itself, and provides the motivation necessary to write, even if I've been churning away on motions, pleadings, or hearings for many hours that day. 

There are also advantages to writing as an associate. I don't need to pigeonhole my research interests into subjects that I think would are inherently of interest to a mainstream academic audience or tenure committee. I just need to make sure that my writing is well-researched and engaging. I also need to make sure that I'm not disclosing any work product or writing something that has negative implications for my clients and cases, but thus far I haven't had much of an issue with this when writing my quirky articles. Perhaps, some day, I'll have a client that wants to demand trial by combat, at which point my scholarship will come back to haunt me. Until then, I'll continue to enjoy writing what I want.

Academic legal writing as a fun undertaking isn't discussed much, but it isn't a completely novel concept. In Scholarship As Fun, Thomas Schultz advocates for the pursuit of fun in scholarship, noting that it is likely to prompt more varied, and--on the whole--better work than scholarship motivated by other considerations:

And when we seek fun, the fun of a joyful, life-affirming, mind and heart-changing, soullifting freer existence, we are likely to engage in creative productivity. We are led to roguish experimentation, to playing legal punk, to throwing inter-temporal surrealist parties of legal thought. And all of them help us see something. As Karl Popper, and others, have suggested, for instance through the idea of truthlikeness and verisimilitude, it is quite unlikely that any given account of mostly any phenomenon is perfect, in the sense that it captures all the elements of the phenomenon and predicts with flawless accuracy what the phenomenon is going to do in a given situation. And so competing coexisting accounts of the same phenomenon are welcome, even if they are mutually exclusive; they provide a richer overall understanding, even if from the relative perspective of each the other account must be wrong. The same idea can be applied to normative theories just as it is to descriptive ones, and to anything in between, to any particular resultant of the dialectic relationship that these two opposite poles entertain (there is always some normative aesthetic prefiguration in any description, as the discussion so far has implicitly argued, and there is always some descriptive preunderstanding in a normative statement).

Other legal scholars' work seems motivated by fun more than anything--Brian Frye is probably one of the most obvious examples.

I acknowledge that the pursuit of fun may be a limited option for those in the academy--especially junior scholars. The legal academic job market is intense, with ever-increasing expectations by hiring and tenure committees that applicants publish mainstream scholarship in prestigious law reviews. Those law reviews also tend to accept scholarship that will make them look good, focusing on popular, well-trodden subjects and favoring work by well known professors.

An aside: I was an articles editor for the UCLA Law Review years ago, and I remember a submission we received from a practicing attorney. I couldn't tell you today who the author was or what the article was about, but I still remember that the article was written in an extremely formal, stilted, hypertechnical manner to the point where it was virtually unreadable. I suspect that the author didn't normally write that way, but that he had tailored his presentation to what he expected an academic publisher wanted. In doing so, he fell into the trap of writing too much like his vision of an academic, and not enough like a normal person.

Law reviews have fallen into a similar trap--they're motivated to publish too much like what they envision law reviews to be. Law reviews consider (and often prioritize) a submission's likeliness of being cited, author prestige, and the popularity of subject matter when deciding to publish a particular article. There's pressure on them to do so--few topics of discussion are more popular among established professors than lamenting their own students' fitness as publishers of legal scholarship. As a result, most journals avoid "risky" scholarship, which in turn causes scholars motivated by the job hunt or tenure prospects to abstain from writing such scholarship. The machine that encourages the publication of mainstream, traditional, and often boring scholarship perpetuates itself.

How can law reviews and authors go about rediscovering the joy of writing legal scholarship for fun? On a narrow level, I think that established professors and authors who don't face the same risks and pressures of junior scholar should do more to promote the publication of nontraditional scholarship. Professors with tenure, for example, could write about less-popular, or downright odd, subjects to shed light on these areas of the law. Where these professors go, other writers and journals will likely follow. Prestigious professors should also cite to and engage with nontraditional scholarship and authors--for example, they should consider publishing and citing to online supplements, and citing authors who aren't tenure-track law professors. And while I know from experience that it's a tall order, authors who don't face the tenure and hiring pressures of academia--say, attorneys working for law firms, the government, and nonprofit organizations--should consider writing and publishing about the subjects they love most. In order for quirky scholarship to get published, it needs to be written. It's my dream to see more practitioners getting involved in the world of legal scholarship (rather than limiting themselves to short form legal newsletters and periodicals).

On a broad level, I think that people at all levels of the legal community need to reevaluate the value of quirky legal scholarship. Articles about offhand topics may, at first, seem irrelevant, but well-written and researched scholarship may offer valuable insights and angles for thinking about more mainstream subjects and fields. Legal reasoning is, to a large extent, an art of arguing from analogies, and the more subject matter that people consider and write about, the more resources there are to make these arguments. Finally, spending time on pursuing quirky subjects--which often stem from what authors are most interested in and excited about--will likely improve the lives of those who write and consume legal scholarship.

Schauer on "Unoriginal Textualism"

 Frederick Schauer recently posted an article, Unoriginal Textualism, on SSRN. Here is the abstract:

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

This approach to constitutional interpretation is very much in line with a "present public meaning" approach suggested at the end of an article that I coauthored with Al Hiland. That article focused on difficulties that originalists face in implementing their theories--focusing, in particular, on the inability of judges and attorneys to engage in the necessary historic research to determine the original public meaning of constitutional provisions. This is a significant problem for originalists, most of whom argue (in one way or another) that the Constitution should be interpreted based on its original public meaning.

After surveying and describing obstacles to determining original public meaning and arguing that reliance on legal academics was unlikely to be the solution that some originalists hope it to be, we propose the alternate theory that rather than being bound by the original public meaning of the Constitution and its amendments, that courts be bound by the present public meaning:

In the context of this Article’s criticism, the present public meaning approach seems appealing—it avoids the need for the complicated and goal-oriented method of studying the constitutional record and the undefined, unworkable method of immersion. It likely leads to much more thorough and representative corpus linguistics analysis, as the internet enables the construction of corpora that are magnitudes more extensive and representative than those available for founding era language. And it better prevents scholars, advocates, and courts from reaching politically motivated conclusions by modernizing the basis for interpretation— allowing the general public to check or speak out against mistakes, rather than letting courts hide behind a curtain of selective historic citations. As for concerns about linguistic drift, this can be minimized by reading the text of the Constitution as a whole with an eye to relevant context thereby avoiding absurd results that originalists flag.

I tend to refer to this approach as the "present public meaning" interpretive approach (I supposed I could also refer to it as "present public meaning textualism"). Schauer refers to this as "unoriginal textualism" or "non-original textualism." 

Schauer points out that the fact that the Constitution is written does not preclude expansive and flexible interpretations--noting that Chief Justice Marshall suggested as much in McCulloch v. Maryland. Rather than seeking to be bound by the past in interpreting the Constitution--say by original intent or original public meaning--Schauer suggests that the text still be treated as authoritative, but that its meaning be determined in light of the present meaning of the text. 

After amassing examples of how the Constitution is not written to speak only to judges, but also to members of the public, Congress, jurors, and others, Schauer writes:

An important feature of these and countless other examples is that often there is no Supreme Court decision dealing with the question, and there is often neither the time nor the resources for the constrained official to try to figure out what some word or phrase or sentence was publicly understood to mean in 1787, or 1791, or 1868. As a result, if it is important that the Constitution constrain officials, and if it is important that it do so even in the absence of litigation, then it follows that it is equally important that those whom the Constitution seeks to constrain be able to understand the Constitution directly. And although the Constitution’s for all practical purposes unremediable vaguenesses may make such an aspiration a fantasy for many of the document’s most consequential provisions, it does not do so for all of them. And for those words and phrases that do have relatively determinate meanings, the constraint function can be served only if we understand the Constitution to mean now what its language means now to its addressees. This is textualism, but it is not the textualism of meanings from a century and a half to more than two centuries ago. It is the textualism of the text now, and thus of the text’s meaning now. It is the textualism that tells Congress how to count the votes of the presidential electors without having to engage in extensive historical research, just as it is the textualism that does the same for the Senate in determining how to conduct an impeachment trial, for the prosecutor deciding whether to present evidence coming from a witness not present for trial, and for any official seeking to determine what the Constitution requires under circumstances in which no court has yet authoritatively adjudicated the issue.

The argument for contemporary meaning textualism, therefore, is the argument from guidance. The most obvious manifestation of that guidance function comes when the Constitution constrains even well-meaning officials from doing what they would otherwise be inclined to do on policy or political grounds, but the guidance function is not limited to constraining. As the examples of counting electoral votes and determining impeachment procedures illustrate, guidance is applicable even when constraint, in the sense of second-order constitutional constraints on first-order policy preferences, is not at issue. But whether constraining or just instructing, the Constitution, as with any other law, is likely to operate most efficiently and effectively when its addresses know what the law requires without the intervention of the courts. If we think that “Stop” signs work best when motorists stop simply because the sign tells them to, then we can imagine the same dynamic, at one or several removes, for the Constitution. And if we believe that, then we should accept the value of a constitution that can, in theory and even sometimes in practice, guide in much the same way as the “Stop” sign guides. And for this guidance to be effective, the guiding document must speak the same language as those it addresses. Contemporary meaning textualism is based on the idea that only if we understand the language of the Constitution as it means now can those who seek guidance now know what the Constitution requires of them. [footnotes omitted]

I'm inclined to agree, and I think it is correct to consider the Constitution in a broader perspective as being interpreted by people and institutions other than the Supreme Court. Not only does a present public meaning approach better guide these actors in interpreting the Constitution, but it allows these actors to better check the Supreme Court, which--if this interpretive method were adopted--would also need to interpret the Constitution and its amendments based on the present public meaning of their provisions. Members of the general public are more likely to be able to readily critique the Court should it depart from the present public meaning of the text. Under alternate approaches, such as original public meaning originalism, the Court may use selective or incomplete citation to historic sources (or to secondary sources providing their own accounts of historic meaning) to reach a desired outcome in a particular case. Parsing through this analysis may prove difficult for the general public--certainly more difficult than evaluating analysis based on the present public meaning of constitutional text.

I'll likely have more to say in the future in support of the present public meaning approach. It's something I've considered for a while, as some of my earliest thoughts and concerns with originalism arose from how the theory renders modernization of the Constitution's meaning impossible. The present public meaning approach also appears preferable from a democratic perspective, accounting for the views of those around today, including African-Americans and women who were unable to vote on or approve any constitutional provisions or Amendments until the passage of the 15th and 19th Amendments. 

These thoughts on this interpretive approach are in their early stages, but Schauer's article represents a significant step towards this method gaining further attention and support. I can only hope that work and other circumstances permit me the time to develop these ideas before next Spring.

Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

 At Volokh Conspiracy, Eugene Volokh flags a brief article that he coauthored with Adam Candeub that was recently published in the Journal of Free Speech Law. Here's the abstract:

[Communications Decency Act] Section 230(c)(2) immunizes platforms' decisions to block material that they "consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." The ejusdem generis interpretive canon suggests that "otherwise objectionable" should be read "to embrace only objects similar in nature to those objects enumerated by the preceding specific words."

In this instance, the similarity is that all those words refer to material that was traditionally viewed as regulable in electronic communications media—and was indeed regulated by the Communications Decency Act of 1996, as part of which § 230 was enacted. And restrictions on speech on "the basis of its political or religious content" were not viewed as generally permissible, even in electronic communications.

Candeub and Volokh argue that "otherwise objectionable" material should not be interpreted as a catch all category, but should instead be construed in light of the other terms in Section 230(c)(2)'s list of materials. As a result, they urge that Section 230(c)(2) be read as immunizing Internet companies and websites from restricting "obscene, lewd, lascivious, filthy, excessively violent, or harassing communications," and that the statute not be read to immunize these actors from the removal of content that is objectionable based on its political content.

I think there are several problems with this argument. With the caveats that these are my initial impressions and that it's been a while since I've done intensive research into Section 230, these concerns are listed below. I've tried to list my objections in order of most technical and specific first, followed by broader points.

First, I think the ejusdem generis interpretive canon has less power in the particular context here because Section 230(c)(2) immunizes platforms' decisions to block "otherwise objectionable" content rather than "other objectionable" content. The latter wording would be a clear example of specific terms followed by a general term, and would be in line with most examples in Candeub's and Volokh's article which involve statutes listing examples, followed by "other" things. But the way the statute is actually worded includes the term, "otherwise," which suggests material that is objectionable in ways that are distinct from the preceding examples. Candeub and Volokh do not address this, and their esjudem generis argument therefore seems stronger than the language of the statute warrants, as it implicitly reads the statute as prohibiting "other objectionable" content rather than "otherwise objectionable" content.

Second, this reading takes an overly narrow view of the purpose of the provision it analyzes and the Stratton Oakmont, Inc. v. Prodigy Services Co. case that played a significant role in prompting the inclusion of the provision. In Stratton Oakmont, the plaintiff sued a website message board for defamation based on several allegedly defamatory posts from message board users. The plaintiff alleged that the message board was liable because it exercised editorial control over the message board, noting that the site set forth detailed content guidelines that discourage the posting of "insulting" notes, as well as notes that "harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community" stating that such content would be removed when brought to the site's attention. The court cited this choice to engage in this editorial control as opening up the site to greater liability than other sites that did not take such measures. 

Congress was aware of this case when it passed Section 230, which Candeub and Volokh recognize. But they only focus on remarks from legislators who cite the blocking of material that is not "family-friendly," which (sort of) lines up with their restrictive reading of the statute. But this narrow focus ignores the extent of editorial restrictions at play in Stratton Oakmont, which included guidelines for the removal of "insulting," [non]-harmonious," and "bad taste" comments. It also suggests a narrow view of "family friendly," content, which may well exclude truthful, politically significant content such as images and discussions of war or terrorism, litigation and legislation over sexual privacy and abortion, and other such political content. Stratton Oakmont illustrated the danger of any sort of editorial policy giving rise to heightened liability, and Section 230(c)(2) was the response. Candeub and Volokh's narrow reading is inconsistent with this broad concern that prompted the immunity provision.

Third, a reading of the statute that removes immunity concerning the removal of political content while immunizing the removal of other content would run into significant First Amendment problems. Those who run websites or forums may have their own political preferences, and may moderate content based on these preferences. Limiting this ability would infringe on those providers' First Amendment rights--an aspect of online content moderation that is often ignored by Section 230 critics (and misinterpreters) who prefer to focus only on the purported rights of users.

To Candeub's and Volokh's credit, they recognize that the First Amendment may be relevant, but set it aside for the purpose of their article. Because of this, though, the article's analysis is in a misleading vacuum.  What is the point of this discussion about ejusdem generis if the First Amendment will ultimately require a different reading? Indeed, the First Amendment may well be relevant to discussions of interpretive canons: to the extent that the narrow reading of "otherwise objectionable" content leads to First Amendment problems, the canon of constitutional avoidance would weigh in favor of an expansive interpretation that avoids this issue.

These are my initial concerns with the conclusions in the article, but I'll be interested in seeing what others have to say--particularly those who are more involved in Section 230 research and litigation than me.