As KY3 (Paul Adler) notes, "[a] graphic on [Rep.] Eric Burlison's website resembles the Great Seal but replaces the quiver of arrows with an AR-15 style weapon." The question is: Is that legal?
I say yes, for various reasons, but most importantly the First Amendment. The First Amendment protects the right to fly the American flag—that is to say, your own copy of the flag—with a peace symbol attached, see Spence v. Washington (1974). Of course, it famously protects even the right to burn the flag. It likewise protects your right to display a copy of the great seal with some technological updating (unless, of course you're doing so to knowingly impersonate government officials or to otherwise defraud people in various ways).
From the docket this morning; for more on the case, see here and here (the latter item notes the sealing, and expresses the now-realized hope that "the motion will be unsealed at some point soon"):
Via email, Plaintiff has informed the Court that it will not be pursuing preliminary injunctive relief…. Plaintiff has also indicated an intent to amend its Complaint…. Finally, it appears that the Clerk sealed the documents filed by Entergy in error …. Docs. 2, 3, and 4 should be unsealed. Plaintiff has confirmed that it never intended for these documents to be sealed in the first place.
The unsealing reveals that the plaintiff's brief in support of the TRO motion didn't even discuss the First Amendment elephant in the room, even though it was pretty obvious that the judge would recognize that a lawsuit seeking to restrain a newspaper's publication would raise such an issue.
Back in 2007, here at the Volokh Conspiracy, I had a post on how to excel on law school exams. I have heard that the post is still read among law students, so I decided to expand on that post and turn it into a more helpful essay for today's students to read.
This Essay offers guidance on how law students can earn high grades on law school essay exams. It starts with the goals law professors have when writing exams, which then frames what counts as a poor or strong performance. The essay then presents a hypothetical exam question with four answers, and it grades the answers to help explain what makes the different answers better or worse.
This is just a first draft, and I plan to improve it over the semester, so please send specific suggestions for improvement to me at okerr at law dot standord dot edu. I'm particularly interested in feedback from other law professors, as I'm trying to capture how grading looks from the faculty perspective, all to help students do their best.
This is Entergy Arkansas LLC v. Arkansas Democrat-Gazette Inc., a case I blogged about yesterday, where a data center construction company sought a temporary restraining order barring the Arkansas Democrat-Gazette from publishing certain alleged trade secrets that were allegedly improperly released by the Arkansas Public Service Commission to a citizen (Jessica Kivell) and were then sent by her to the Democrat-Gazette. I now have a copy of the transcript of Judge Lee Rudofsky's oral opinion that he delivered in court yesterday. The opinion is long, but here's a slightly edited excerpt of the First Amendment discussion, which focuses on the TRO request against the press defendants. As usual, I use curly braces ({ and }) to indicate moved text, clean up some of the citations, and add or remove some paragraph breaks.
The court concluded that, even "assuming arguendo that there's a fair chance that the press defendants have violated the federal and state trade secrets provisions," the First Amendment would preclude the TRO:
What Entergy is asking for with regard to the press defendants is actually or is the equivalent of a prior restraint. Entergy is asking that the Court prevent the press defendants from publishing news articles that include information Entergy believes to be trade secrets….
[S]ome of [what follows] are quotes, some of these are slight paraphrases…. The Supreme Court has held that "prior restraints of expression come to courts bearing a heavy presumption against constitutional validity." … Bantam Books v. Sullivan (1963). "Prohibiting the publication of a news story is the essence of censorship." … Matter of Providence J. (1st Cir. 1986)…. "A plaintiff must make an extraordinary showing of harm in order to obtain a court order that stops the news media from publishing information on a matter of public concern." New York Times v. U.S. (1971)….
The prior restraint doctrine has been applied in the context of trade secrets cases as well, and although the Court acknowledges that in this context, just as in some other contexts, courts continuously note that not all prior restraints are per se unconstitutional…. [T]here is an absence of cases where a court has actually prevented the press from publishing trade secrets. Indeed, as I understand it from yesterday, plaintiff has only pointed to one case from the California Supreme Court. And, quite frankly, that case is both unpersuasive and very far afield from the facts of our case.
Democratic socialism is a terrible ideology. If implemented, its agenda would cause grave harm and imperil democracy itself. And in seeking massive state control of the economy, today's socialists ironically have much in common with the MAGA nationalists they claim to oppose.
Both promote government control over the economy, and both paths undermine liberty, prosperity and democracy. Socialists do not control the Democratic Party in the way MAGA largely dominates the Republicans. But their influence is growing.
The democratic socialist agenda goes far beyond a marginal increase in economic regulation or welfare spending. It amounts to sweeping government control of the economy and society, on a scale that invites comparison to Cuba, North Korea and the old Soviet Union….
The rest of the article explains how both socialist and nationalist forms of government control of the economy run into problems of knowledge and incentives, and why both threaten liberty and democracy. I also explain why adherents of these ideologies cannot paper over their flaws by claiming they favor democratic versions of them, rather than authoritarian ones:
Today's socialists say they will avoid this fate because they champion "democratic" socialism, not the authoritarian kind. But near-total state control of the economy has never coexisted with democracy for long. A government that controls the economy can starve opposition parties of resources and weaponize control of basic goods to crush dissent.
Progressives and others should consider whether they trust someone like Trump to have the kind of sweeping control over the economy socialists advocate for. There is no guarantee such a person – or worse – would not come to power under socialism….
If socialism worked as advertised, people would be fleeing market economies to live under it, not the other way around. Right-wing nationalist regimes have produced their own refugee outflows. Refugees from Nazi Germany and fascist Italy, for instance, helped build American science, including the Manhattan Project, which developed the atomic bomb.
(to oversimplify slightly); so a Magistrate Judge concluded in case where defendant "posted a video to a blog allegedly depicting Plaintiff 'as Adolf Hitler by adding a Hitler mustache to Plaintiff's photograph and engaging in oral sex with a journalist.'"
Plaintiff Jeremy Hales operates an online business that generates revenue by posting content on social media websites …. Plaintiff has over 730,000 subscribers for his "What the Hale$" channel on YouTube and over 327,000 followers for his "What the Hale$" page on Facebook.
Defendant Richard Luthmann also maintains an online presence by, among other things, posting content on a blog. In early 2025, Defendant Luthmann allegedly sent emails about Plaintiff to the Anti-Defamation League and to people who post content on YouTube. Around the same time, Defendant Luthmann also posted a video to a blog allegedly depicting Plaintiff "as Adolf Hitler by adding a Hitler mustache to Plaintiff's photograph and engaging in oral sex with a journalist." …
[Plaintiff] alleges that Defendant Luthmann violated Florida's sexual cyberharassment statute, Fla. Stat. § 784.049…. To state a violation of § 784.049, a plaintiff must plausibly allege
Defendant published a sexually explicit image of Plaintiff on an internet website;
The image contained or conveyed Plaintiff's personal identification information;
Defendant acted willfully and maliciously, for no legitimate purpose, and with the intent of causing substantial emotional distress to Plaintiff;
Plaintiff did not consent to the publication….
The dispute was about whether the video showed a "sexually explicit image," and the court said no:
From Tuesday's decision by Judge Lara Montecalvo, joined by Chief Judge David Barron and Judge Sandra Lynch, in Díaz v. Colón:
In its summary judgment order, the district court held that Plaintiffs were entitled to relief under the Equal Protection Clause of the Fourteenth Amendment. {[T]he district court only reached Plaintiffs' claim under the Equal Protection Clause; it did not reach Plaintiffs' claims under the Due Process Clause or the First Amendment of the U.S. Constitution and Puerto Rico Constitution.}
Explaining that the Application for Gender Change gives "an option for binary applicants to choose a gender marker which aligns with their true gender, but does not provide [such] an option" for "nonbinary individuals," the district court concluded that Puerto Rico's "Birth Certificate Policy" creates a classification on its face between "people with a binary gender identity" and "nonbinary people." The district court also concluded that it did not need to decide which level of scrutiny applied to Puerto Rico's Birth Certificate Policy because it held that the Policy did not survive the lowest level of scrutiny—rational scrutiny….
Under [the]"forgiving" standard [set forth by past cases], we conclude that Puerto Rico's Birth Certificate Policy is supported by a rational basis….
Last month, I wrote about Trump's new executive order seeking to deny birthright citizenship to various classes of children born on US soil, and noted the first legal challenges to it. As I pointed out then, almost every part of the new order is at odds with the Supreme Court's recent ruling in Trump v. Barbara, which struck down Trump's executive order denying birthright citizenship to children of undocumented immigrants born in the United States, and those born to non-citizen parents here on temporary visas. The Fourteenth Amendment guarantees grants citizenship to all children "born or naturalized in the United States, and subject to the jurisdiction thereof." In Barbara, the Supreme Court majority made clear that "subject to the jurisdiction thereof" includes children of all persons who are subject to and required to obey US law.
Today, in Casa, Inc. v. Trump, federal district court Judge Deborah Boardman of the District of Maryland issued a decision imposing a preliminary injunction blocking the new order. It is the first judicial ruling on Trump's new birthright citizenship executive order. As Judge Boardman put it, "[t]he 2026 Executive Order is almost certainly unconstitutional as applied to the certified class for the simple reason that the Supreme Court in Barbara already decided that the children in the class are citizens at birth." She goes on to explain why:
When the Supreme Court explained the meaning of "subject to the jurisdiction" of the United States, it distinguished between people over whom the United States has the power to govern (and who are thus subject to the jurisdiction of the United States) and people over whom the United States does not have the power to govern (and who are thus not subject to the jurisdiction of the United States). See Barbara, 146 S. Ct. at 2449– 50… . The latter category of people falls into the "narrow exceptions" to the rule of citizenship by birth that are implicated when the United States does not have the "full and complete power" to govern over people born on its land. Id. at 2450. Those "narrow exceptions" include "children of foreign ministers" and "members of 19th-century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign)." Id.
This is pretty obviously correct. As explained in my earlier post on the new executive order, that order covers four groups almost all of whose members are clearly subject to US law:
Children of "alien enemies," defined as those where at least one of two non-citizen parents is a "designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism)."
Children born to at least one non-citizen parent who is a "foreign government employee" or employed by an "international organization that possess[es] international-organization immunity."
Children where "either parent" has engaged in "birth tourist" transactions of various kinds (deliberately seeking to give birth in the US so the child would get birthright citizenship).
As I explained more fully in the earlier post, all of the children in these four categories are obviously subject to US law, with the exception of those born to foreign diplomats who have diplomatic immunity. This latter group is already excluded from birthright citizenship. In that post, I also explained why the analogy between "alien enemies" (as defined in the order) and children of members of an invading army occupying US territory fails.
Judge Boardman's ruling also covers a number of procedural issues I will not attempt to go over here. But the bottom line is she has imposed a preliminary injunction blocking implementation of the order with respect to a previously certified class of all children born on US territory and subject to the 2025 executive order, to parents who are unlawfully present in the US or here on temporary visas (the class was certified as part of the litigation challenging Trump's earlier birthright citizenship order).
This covers pretty much all the people potentially affected by the new birthright citizenship order and born after February 19, 2025 (when the earlier executive order took effect), except those born to legal residents of American Samoa, in category 4 above. It is not clear whether the administration will try to implement the order against children born before February 2025. As noted in Judge Boardman's opinion, "[n]owhere in the order does it indicate it does not apply to children already born." The government's lawyers claimed it would only apply to children born in the future, but these assurances may not be credible. If the administration does try to enforce the order against children born before February 2025, further litigation will be needed to stop that.
Today's ruling is probably only the beginning of the litigation over the new order. The administration is likely to appeal. But I hope and tentatively expect that appellate courts - including, potentially, the Supreme Court - will rule much the same way. The new order is pretty obviously at odds with Trump v. Barbara - and also with the text and original meaning of the Citizenship Clause of the Fourteenth Amendment.
From KARK (Alex Kienlen) today, reporting on a decision by Judge Lee Rudofsky (E.D. Ark.) in Entergy Arkansas LLC v. Arkansas Democrat-Gazette Inc.:
A federal judge issued a decision on Wednesday denying a request by lawyers for Entergy Arkansas to stop the use of documents released under the Freedom of Information Act (FOIA) to a Little Rock woman….
The Democrat-Gazette reported on Monday that the Entergy documents, including some marked "confidential," were released after Jessica Kivell filed her FOIA request with the Public Service Commission and shared them with the newspaper….
The filing asked that the defendants be immediately prohibited from using or disclosing the documents, since it would do "irreparable harm" by disclosing Entergy Arkansas' trade secrets.
There is no written opinion from Judge Rudofsky; but besides the general First Amendment rules against temporary restraining orders barring speech, the matter also seems to me to be governed by Florida Star v. B.J.F. (1989).
Today, the Institute for Humane Studies Liberalism.Org website published my article on why private property rights deserve a central place in the liberal political tradition. It explains how property rights are essential to liberty, and why strengthening protection for them particularly benefits the poor and disadvantaged. Here is an excerpt:
Property rights were central to the origins of the liberal political tradition. And, in our time especially, they should be central once again. In addition to their inherent value as a vital element of liberty and autonomy, bolstering them is essential to uplifting the poor and disadvantaged and boosting prosperity and innovation. The right to private property can also help protect a variety of other important rights.
Property rights were a central focus of the early liberal tradition. John Locke famously wrote that the purpose of government was the protection of "life, liberty, and property." Many of the American Founders made similar statements. At the Constitutional Convention, Alexander Hamilton avowed that "one great obj[ect] of Gov[ernment] is the personal protection and security of property." James Madison—Hamilton's great adversary on many issues—agreed, writing in his famous 1792 essay on "Property," that "Government is instituted to protect property of every sort… This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own."
In more recent times, many—including many left-liberals—have downgraded property rights, and advocated that they be severely limited, often supposedly to protect the interests of the poor and disadvantaged. Yet the poor and disadvantaged have the most to gain from strengthening protection for property rights. Stronger protections would raise living standards for them, and for society as a whole….
As early liberals understood, property is essential to liberty. Almost every important human activity requires the use of property…
Property is also essential to the exercise of almost every type of liberty and autonomy. There is no meaningful freedom of speech without property rights in books, computers, newspapers, printing presses, internet connections, and other facilities necessary to disseminate our words. There is little, if any, freedom of religion without property rights in locations needed to hold religious services, propagate religious doctrines, and operate other religious institutions. The right to contraception protected by the Supreme Court's famous decision in Griswold v. Connecticut, though usually thought of as a "privacy" right, depends on the right to acquire and possess property rights in contraceptives.
We can make similar points about almost any other form of liberty. If exercising it requires the use of land or material goods, that exercise depends on property rights. Without such rights, the government could at any time negate the liberty simply by denying the ability to use property needed to exercise it.
Moreover, liberty depends not just on the mere legal ownership of property, but on the right to use that property for the purposes the owner decides….
The rest of the article goes into detail on the importance of specific property rights issues, such as exclusionary zoning, protection against eminent domain, and others.
Liberalism.Org is a new initiative of the Institute for Humane Studies, led by Jason Kuznicki. Its purpose is to promote and revitalize liberal political thought in an era where illiberal of various types are on the rise. Jason provides an overview of the project and its purposes here.
The other regular contributors are prominent libertarian or libertarian-leaning thinkers (though some may prefer terms like "classical liberal"). They include Radley Balko (leading expert on criminal law and law enforcement issues), Janet Bufton (prominent Canadian classical liberal thinker and political commentator), Prof. Michael Munger (Duke University), Sarah Skwire (Liberty Fund), and Prof. Matt Zwolinski (University of San Diego, coauthor of The Individualists: Radical, Reactionaries, and the Struggle for the Soul of Libertarianism). I look forward to continuing to work with them!
Some excerpts from U.S. v. Aleman-Lozano, decided yesterday by Third Circuit Judge Patty Shwartz, joined by Judges Theodore McKee:
Aleman-Lozano is a native and citizen of El Salvador. He entered the United States unlawfully but, in 2017, was granted a nonimmigrant temporary visa with work authorization. Since entering the United States, he has resided with his family, attended school, and worked in Washington, D.C.
In September 2021, a Pennsylvania state trooper pulled Aleman-Lozano over for a traffic violation …. During the stop, the trooper saw a rifle cartridge on the passenger seat. As a result, the trooper obtained a search warrant and found a pistol containing a loaded sixteen-round magazine, which Aleman-Lozano told police he had purchased from an unidentified individual in Maryland. The pistol did not have a serial number….
Aleman-Lozano was prosecuted under 18 U.S.C. § 922(g)(5)(B), which generally makes it illegal for aliens present under a nonimmigrant visa (with some exceptions) to possess guns, and brought a facial challenge to the constitutionality of the provision. Judges Shwartz and McKee assumed without deciding that "the people" in the Second Amendment included noncitizens who were lawfully present, but concluded that "there is historical support for the challenged restriction" based on "analogues from before and at the time of the Second Amendment's ratification":
This is a skilled-nursing-home negligence case proceeding in federal court based on diversity jurisdiction …. In diversity cases proceeding under § 1332(a), Federal Rule of Civil Procedure 7.1(a)(2) requires every "party or intervenor [to]…file a disclosure statement[ ] [that] must name—and identify the citizenship of—every individual or entity whose citizenship is attributed to that party or intervenor[.]" On August 3, 2026, Defendants filed their unredacted Rule 7.1 disclosure statements provisionally under seal. In the present Motion, Defendants seek to maintain under seal the unredacted Rule 7.1 disclosure statements, which reveal various layers of the respective limited liability companies' ("LLC") memberships and the identities of those layers of members. Defendants request permission to file publicly only redacted versions of these documents, redacting "the names of non-party individuals, trusts, and limited liability companies whose disclosure would reveal the private ownership and financial associations of non-parties." Plaintiffs oppose the Motion on multiple grounds, including that granting the Motion "would convert a transparency rule into a sealing regime for any LLC that prefers anonymity."
The court noted the general right of access to court records, and concludes that there's no exception to it for the LLC disclosures; here's part of the analysis:
[F]ederal district courts have overwhelmingly rejected these types of generic confidentiality and privacy concerns as insufficient to justify sealing or otherwise restricting Rule 7.1 disclosure statements. [Long string citation omitted. -EV] Simply put, "[c]orporations and limited partnerships may offer individuals protection from liability, but they do not entitle individuals to anonymity in court proceedings." Here, all the individuals and entities listed in Defendants' Rule 7.1 disclosure statements elected to have an ownership interest in a skilled nursing facility and the company that manages the skilled nursing facility. It is not unusual or unforeseeable that these types of parties would be sued in diversity cases in federal court, triggering the requirement that these Defendants file Rule 7.1 disclosure statements. While there may be specific cases in which sealing would be appropriate, they would involve a far more specific set of facts pertaining to specific entities or individuals than what this Court has before it….
[R]ather than address these cases, which represent the overwhelming majority view, Defendants' Motion relies on a different case from this District that also involved Defendant MRC. In that case, the judge granted defendants' unopposed motion seeking leave to file redacted copies of Rule 7.1 disclosures. This is the only case Defendants cite in which a court allowed Rule 7.1 disclosures to be sealed in whole or in part. But as Plaintiffs persuasively argue, "[a]n unopposed grant carries little weight in a contested posture," such as here. The undersigned agrees with the majority view that Rule 7.1 disclosures should not be sealed in whole or in part based on generic privacy arguments that could apply to nearly any business that wishes to keep private those with an ownership interest….
Plaintiff Lebohang Morake is the creator and original performer of "Nants'ingonyama bagithi Baba," the opening chant from Disney's The Lion King. Defendant Learnmore Mwanyenyeka is a comedian and content creator.
Defendant appeared on a podcast, where he asserted that "Nants'ingonyama bagithi Baba" means "Look, there's a lion. Oh my god" in the Zulu language. The podcast was posted on YouTube and went viral. Defendant has been repeating this assertion at various comedy clubs. Plaintiff maintains that Defendant's assertion is false, and that the true translation of "Nants'ingonyama bagithi Baba" is "All hail the king, we all bow in the presence of the king."
On March 16, 2026, Plaintiff filed the instant action, bringing claims for (1) misleading representation in violation of the Lanham Act, 15 U.S.C. § 1125; (2) defamation per se; (3) trade libel; and (4) tortious interference with prospective economic advantage against Defendant, for Defendant's "mischaracterization of the true meaning of 'Nants'ingonyama bagithi Baba.'"
From Third Circuit Judge Stephanos Bibas, joined by Judges Felipe Restrepo and Cindy Chung, in yesterday's U.S. v. Berger:
Gun bans are strong medicine. But occasionally, they are just what the doctor ordered. History teaches that governments may ban weapons when they are commonly used principally for crime. Machine guns fit that mold….
The Second Amendment is not boundless…. The Second Amendment protects weapons commonly used for self-defense and other legal purposes. Conversely, "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." This traditional principle "accords with the historical understanding of the scope of the right." To support the common-use principle, Heller relied on "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" …
Machine guns are not in common use for lawful purposes. That means they are dangerous and unusual. They are indiscriminate weapons of war and crime, not self-defense ones. And because they can cause unusual amounts of damage, they are used mostly for criminal purposes….
