From a survey this month of Democratic voters by the Center for Strategic Politics, a self-described progressive organization.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
D.C. Circuit Rejects Limits on Capitol Steps Demonstrations
Regulations limiting demonstrations on the Eastern Steps to those sponsored by members of Congress are unreasonable.
Members of Congress often hold demonstrations on the Eastern Steps of the U.S. Capitol building. Ordinary citizens, however, are barred from holding demonstrations on those same steps without congressional sponsorship. This selective limitation is unacceptable under the First Amendment, even conceding that the Eastern Steps are a nonpublic forum. So concluded the U.S. Court of Appeals for the D.C. Circuit today in Mahoney v. U.S. Capitol Police Board.
Although all three judges on the panel agreed the regulations were impermissible, they disagreed on the rationale. Judge Rao, joined by Judge Henderson, wrote for the court. Her opinion begins:
Federal regulations prohibit the public from demonstrating on the Eastern Steps of the United States Capitol unless sponsored by a member of Congress. A minister seeking to pray and demonstrate on the Steps brought a First Amendment challenge to these regulations. The district court granted summary judgment for the minister and universally enjoined enforcement of the regulations.
Although the Eastern Steps are a nonpublic forum, the regulations are not reasonable because an individual's right to demonstrate outside the Capitol cannot turn on the discretion of a member of Congress. The universal injunction, however, exceeded the district court's equitable authority. We therefore affirm the grant of summary judgment for Mahoney on his First Amendment claim but vacate the injunction and remand for the district court to determine the appropriate scope of relief.
As Judge Rao explained, it would be permissible to reserve the Eastern Steps as a means of entering and exiting the Capitol building, but it is not permissible for the government to privilege those demonstrations endorsed or supported by members of Congress over those that are not.
"[T]he government has no authority to license one side to fight freestyle, while forbidding the other to fight at all." Mahoney v. Babbitt, 105 F.3d 1452, 1454 (D.C. Cir. 1997). As applied to the Eastern Steps, the Traffic Regulations are unreasonable because members may not exercise unbridled discretion over which individuals may speak on the Steps of the Capitol.
On the question of remedy, Judge Rao noted that the district court should not have entered a universal injunction under Trump v. CASA, as such an injunction exceeded the district court's remedial authority. Note, however, that as a consequence of the D.C. Circuit's decision, the government is effectively precluded from barring anyone from demonstrating on the Eastern Steps under existing regulations. This is because the D.C. Circuit's decision (unlike that of the district court) has precedential effect and dictates an equivalent outcome in any and all future suits brought against the Capitol Police challenging the enforcement of the existing rules. As with most challenges brought against agency regulations, the practical effect of a victory against the federal government in the D.C. Circuit is nearly always universal (a point I expanded on here).
Senior Judge Rogers dissented from Judge Rao's opinion, largely on the reasoning, as her opinion would also bar the Capitol Police from enforcing its regulations against Mahoney. Judge Rogers would have affirmed the district court's conclusions that the Eastern Steps are a traditional public forum (as opposed to a nonpublic forum) and that the regulations in question are not narrowly tailored to serve the government's asserted security interests.
Someone Trying to Vanish My Post About a No-Pseudonymity Decision
[1.] First, the backstory: In December, I posted an item about a decision by Judge Jeannette Vargas (S.D.N.Y.) in Finley v. Przybylowski:
Plaintiff and Defendant are attorneys who met seven years ago as summer associates at different prominent law firms in New York City…. [Plaintiff] alleges that Defendant violently raped and sexually assaulted her on the night they met, causing her physical, professional, and psychological damage. Defendant denies all allegations of nonconsensual conduct…. Defendant claims that he and Plaintiff engaged in consensual sexual activity in May 2018. Defendant attests that he was "terminated from [his] employment with a top law firm on October 13, 2025 as a result of the Plaintiff's Complaint and false allegations," and that he fears that it would be "nearly impossible" to obtain employment with his name attached to this lawsuit, He also claims to fear that his physical safety could be placed at risk….
Defendant sought to proceed under a pseudonym, but the court said no:
[T]he economic and reputational harms that Defendant has faced and may face as a party to this action, substantial though they may be, are outweighed by the public interest in access to judicial proceedings….
I excerpted more of the opinion, which you can read here. Naturally, one can agree or disagree with the court's decision to deny pseudonymity, but in any event, my post passed along that decision.
[2.] Then, on July 22, Przybylowski's lawyer (a partner at a small but prominent law firm) sent a letter to Reason, with a "demand" that the post be removed:
Lawsuit Against St. Louis Restaurant for Firing Manager for Post Related to Charlie Kirk Murder
Missouri law, like the law of some other states, limits even private employers from firing employees based on their political opinions.
In Mormino v. Lomb Inc., filed Aug. 31 in Missouri state court, plaintiff—General Manager for one of defendant's restaurants—posted this post on his personal Facebook page after the Charlie Kirk murder:
The restaurant fired him, and now plaintiff is suing. Missouri is one of a significant minority of states that forbids even private employers from firing employees based on their "political activity":
"Are the Government's Conversations with AI Accessible Under Public Records Laws and FOIA?"
A very interesting forthcoming article by noted media lawyer Steve Zansberg in the Fall 2026 issue of the Communications Lawyer; the Summary:
- AI prompts and outputs used by government officials to conduct public business should generally be treated as public or agency records subject to state public records laws and FOIA.
- While courts have not yet resolved how these laws apply to AI chatbot conversations, existing legal principles strongly support disclosure when the records relate to official functions.
- Practical barriers such as poor retention, high costs, and asserted privileges will likely shape future disputes over access.
And an excerpt from the Introduction:
In 2025, a combined reporting project between Cascade Public Broadcasting and KNKX-TV exposed that city workers, including the mayor's staff, in two Washington cities utilized ChatGPT to write mayoral letters, generate grant applications, draft policy documents, synthesize public comments, and compose replies to citizens and the media. The joint reporting effort revealed alleged bid-rigging performed through AI prompts and responses, and that half of a letter the mayor of Bellingham sent to state authorities seeking funds for a Native American tribe was actually copied, verbatim, from ChatGPT. That reporting was enabled by the successful use of the Washington Public Records Act. Similarly, in 2025, the Texas Department of Transportation produced numerous conversations between its employees and ChatGPT in response to a records request under that state's public records law.
The Nazi-Skokie Controversy
In 1977, a planned neo-Nazi march in Skokie, Illinois set off one of history's most contentious debates about the limits of free speech.
In the mid-1960s, the idea of legal restrictions on hate speech was one whose time seemed to have come and gone. Yet only a decade later, the public's interest in hate speech laws surged.
This renewed interest can be attributed, in part, to changing attitudes toward freedom of speech. By the 1970s, many Americans had come to believe that freedom of speech had not secured the just and humane society that liberals of the 1960s envisioned. The 1970s saw economic hardship and what President Jimmy Carter famously described as national "malaise." Pornography proliferated, crime wracked the nation, and racism continued to flourish. Waning confidence in freedom of speech coincided with an unexpected series of events that produced one of American history's most important dialogues on freedom of speech and hate speech.
In 1977, a small group of uniformed Nazis attempted to march into a Chicago suburb populated by Holocaust survivors. The "Nazi–Skokie affair" generated a firestorm that altered the terms of the hate speech debate.
The Skokie incident set off an unprecedented conversation about hate speech and legal limitations on hate speech. For the first time, ordinary Americans learned that the First Amendment protected most forms of hate speech. In dining rooms, community centers, and schools, people debated: Why should Nazis be allowed to march in Skokie? Should freedom of speech have limits? Should a nation that is committed to racial and religious equality tolerate the speech of racists and fascists?
Today in Supreme Court History: September 22, 2005
9/22/2005: Senate Judiciary Committee votes 13-5 to send Judge John Roberts's nomination to the full Senate.

Open Thread
What’s on your mind?
Exit, Voice, and Nikole Hannah-Jones
Nikole Hannah-Jones' controversial article about her daughter's schooling is a testament to the importance of exit rights.

Prominent journalist, academic, and anti-racism activist Nikole Hannah-Jones recently wrote a controversial New York Times article, in which she expresses regret for her and her husband's decision to place her daughter in underperforming majority-Black public schools in New York City. Hannah-Jones hoped that putting her daughter there would help improve education for disadvantaged minority children, as her family's wealth and skills as political activists might stimulate reforms. Instead, her daughter ended up bitterly bemoaning the poor quality of the education she got, and Hannah-Jones' well-meaning efforts to improve the public schools she attended accomplished very little. Eventually, at her daughter's request, Hannah-Jones acknowledged error, and sent her daughter to a higher-quality selective high school.
Hannah-Jones' story is a testament to the value of exit rights and choice. Although she does not seem to recognize it, the best way to help students from less advantaged families than her own is to expand exit and choice opportunities for them. That is what social science shows. Her story also resonated with me because of my own experience as both a struggling student and (later) a parent. That experience also highlights the value of exit rights and choice, even if in a slightly different way.
While I think Hannah-Jones hasn't fully drawn the right lessons from her experience, I commend her for her willingness to acknowledge error. Few public intellectuals do that, and especially not on issues close to the heart of their ideological and personal commitments, as this one is for her.
Exit vs. Voice
Hannah-Jones initial decision to send her daughter to a poorly performing public schools was motivated by an argument associated with the great economist Albert Hirschman (though I don't know if that's where she got the idea). In his classic work, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States, Hirschman argued that exit rights can be harmful if it leads people to leave a flawed institution that they could instead stay and successfully reform using "voice." He specifically applied this to the issue of school choice, arguing that the most savvy and politically influential parents might take their kids out of badly-performing schools, instead of staying and successfully reforming them.
In my book Free to Move: Foot Voting, Migration, and Political Freedom, I outlined some key limitations of Hirschman's argument. I summarize my key points here:
It is important to recognize that Hirschman's argument applies only in a narrow range of circumstances. In order for it to hold true, a subset of participants in a political institution must 1) be able to force through effective reforms where the others could not impose the reforms in their absence; 2) prefer to exit rather than exercise voice despite the likelihood that their use of voice will be successful; and 3) possess exit options that are not available to the others. If 1 holds true, it is hard to see why 2 would, since these individuals could instead get what they want without moving. The more foot voting opportunities become available to everyone, the more the third precondition is weakened.
Even if all three preconditions are met, foot voting by even some participants could give policymakers an incentive to enact needed reforms of their own accord in order to retain tax revenue from those who might exit. This seems to have occurred when it comes to the paradigm case that gave rise to Hirschman's theory: school vouchers that give parents funds to transfer their kids to better-performing schools…. Peer-reviewed studies of the effects of vouchers find that they actually improve the quality of public schools "left behind" by those who exit. By contrast, simply increasing funds for traditional public schools without expanding exit rights has little or no educational benefit.
Point 1 above is of special relevance to Hannah-Jones' experience. It turns out that she and others like here were not actually in a position to effectively promote beneficial reforms in the failing schools in which she enrolled her daughter. More fundamentally, the main problems besetting those schools are not lack of resources or lack of activism, but poor incentives. As economist Alex Tabarrok points out, New York City public schools spend over $40,000 per student per year (one of the highest averages in the nations), and P.S. 307 (the school where she initially sent her daughter) spends over $52,000. And MYC doesn't lack for motivated political activists. The problem is that school officials and employees have little incentive to use those resources in ways that actually facilitate quality education. To put it crudely, they get paid the same, regardless of how well the kids do. If the latter perform poorly, that might even be a justification for increasing spending further. This is a large part of the cause of what Hannah-Jones calls "the callous disregard" for children's needs of the faculty and staff at her daughter's elementary school. Parental "voice" is unlikely to fix that.
By contrast, when parents can choose their schools (as Hannah-Jones eventually did), they can seek out ones that fit their kids' needs better. And schools that rely on choice for their funding have strong incentives to actually educate the kids effectively. And, as noted in my book, studies indicate that expanding exit rights and choice particularly benefits the poor and disadvantaged - including minorities.
Hannah-Jones rightly laments that such options are often only available to the relatively affluent (most of whom are white). But there is much we can do to expand exit options for others.
As I explain in a series of articles coauthored with Josh Braver (see here and here), one way to do so is to break down exclusionary zoning, which - among other things - keeps poor and minority parents from moving their children to areas with better schools. Exclusionary zoning also has a horrible racist history.
We can also expand choice and exit rights by instituting universal school choice, which can - at least to a large extent - break the connection between residency and schooling, thereby particularly benefiting poor and disadvantaged students. In another recent article, I explain how this (along with other measures to expand "foot voting" opportunities) can help us more fully realize the promise of Brown v. Board of Education.
By contrast, New York City has only a very limited school choice system, which does not include private schools, and has various other constraints. Even the limited available system still creates important gains for poor Black and Hispanic students. But expanded choice and competition could make the system better.
One Student's - And Parent's - Experience
Some parts of Hannah-Jones' story reminded me of aspects of my own, as both student and parent. I was far from an ideal student, and - later - far from an ideal parent. But those shortcomings accentuated the value of exit rights and choice, without which I (and later, my daughter) would have been far worse off.
My parents brought me to the United States from the Soviet Union when I was six. Obviously, pretty much everything I have managed to accomplish since them was the result of that choice - the difference between the opportunities offered by a relatively free society and those of a socialist dictatorship (which later became an only modestly less awful nationalist dictatorship).
More immediately relevant was my parents' further use of exit rights in the US. I was no great student, and did not learn to read till the age of eight - a consequence of some combination of lack of motivation and what may have been undiagnosed dyslexia. When I was 11, my parents moved to the town of Lexington, Massachusetts, largely because it had better schools than the one where we lived previously, and their strengths were particularly well-suited to my needs. Like Hannah-Jones' daughter, after she went to a stronger high school, I initially struggled in the new environment. But, eventually, I did much better. This move did not make as big a difference as that from Russia to the US. But it was significant, nonetheless. I recounted these experiences in my 2010 immigration memoir, written for HIAS.
As a student at Lexington High School, I witnessed another benefit of school choice. The Boston area has a program called METCO, which allows inner-city students (mostly Black and Hispanic) to voluntarily apply to attend much stronger schools in the suburbs, such as LHS. Studies show that participants make major educational gains, and are more likely to attend college.
Many METCO students initially struggle in their new environments (as I did myself after we first moved to Lexington). And there is sometimes a gap between their grades and test scores, and those of the suburban kids in their new schools. When I was a high school junior, I wrote an article about this gap for the school newspaper, thereby unexpectedly causing something of a local controversy. Nonetheless, the program creates real progress for disadvantaged kids. And, unlike mandatory school busing - which led to outbreaks of violence and racism in the Boston area in the 1970s - METCO has met with little opposition.
Many years later, my own daughter Lydia, had educational issues of her own. When the Covid pandemic hit in 2020, my wife and I saw that remote education in the Arlington, Virginia public schools would be a terrible fit for Lydia, given her need for occupational therapy, and what we later learned was a fairly serious case of dyslexia (likely worse than what I had). We made the decision to send her to a private school which - among other things - kept on with in-person education throughout the pandemic. Lydia did better, as a result (including after the pandemic). Had we instead worked to use "voice" to reform the local public schools, it's unlikely we would have achieved much. Lydia would have suffered for nothing.
Nonetheless, progress was still uneven. Like me before her, Lydia still did not know how to read at the age of eight. After extensive consultation with specialists at her school and elsewhere, we finally hit upon the idea of teaching her to read by helping her memorize "sight word" flashcards. Like me, Lydia has trouble with visual learning, but is very good at learning through memorization and repetition.
For several months, Lydia and I spend 15-30 minutes every night memorizing sight words. We went from kindergarten sight words, all the way to fifth-grade ones. At the end of this not-always-fun process, Lydia could read at grade level, and the first book she read on her own was classic science fiction novel Ender's Game, which is intended for adults. Today (at age 11), Lydia is an "academic superstar," as her school's principal put it.
In retrospect, I should have hit upon this fairly simple and cheap idea much earlier, especially given my own experiences. I am to blame for that oversight. The episode shows that even high-quality schools and teachers cannot fully substitute for parental judgment of their kids' specific needs. But the school was invaluable in maintaining a measure of progress in the meantime. And discussions with their and other specialists helped us eventually figure out the right path.
In sum, no school is perfect, and parents need to be attentive to their kids' individual situations. This reality creates difficulties for poor parents, single parents, and others less advantaged than Hannah-Jones or myself. But exit rights, choice, and competition can do much to improve the lot of poor and minority students.
MSNBC Pundit's Tweet Accusing Lawyer of "Coach[ing]" Jan. 6 Hearing Witness "to Lie" Wasn't Negligent
From today's decision by Judge Loren AliKhan (D.D.C.) in Passantino v. Weissmann (for an earlier decision in the case, see here):
Plaintiff Stefan Passantino brings this action against Defendant Andrew Weissmann, alleging defamation stemming from a September 2023 social media post. In the post, Mr. Weissmann referred to Mr. Passantino—a lawyer—as someone "who coached [a witness appearing before Congress] to lie." …
In 2021, the House of Representatives established a Select Committee to investigate the January 6, 2021 attack on the U.S. Capitol. As part of its investigation, the Select Committee interviewed numerous witnesses, including Cassidy Hutchinson, a former special assistant to President Trump who had been serving under the direction of White House Chief of Staff Mark Meadows on January 6, 2021.
Mr. Passantino [a former Trump administration senior lawyer] represented Ms. Hutchinson at her first three closed-door Select Committee depositions on February 23, March 7, and May 17, 2022. In early June 2022, after the third deposition, Ms. Hutchinson fired Mr. Passantino and retained new counsel. She subsequently gave a fourth, televised deposition on June 28, which received substantial media coverage.
After her fourth deposition, Ms. Hutchinson sent a letter to the Select Committee stating that she intended to "waive [her] attorney-client privilege [with Mr. Passantino] in order to share information with the [C]ommittee that[] [was] relevant to [her] prior testimony." The Select Committee scheduled her for a fifth, closed-door deposition for September 14, 2022. According to Ms. Hutchinson, she had asked a friend to "back channel to the committee and say that there [were] a few things that [she] want[ed] to talk about." … [She also said] that she did "not [want to] let Stefan [Passantino] know that [she was] back channeling for this interview" ….
FA with "FAFO" and FO
A short excerpt from the long opinion in Barlow v. Dep't of Navy, decided Sept. 11 by Merit Systems Protection Board Administrative Judge Scott Borrowman:
On October 29, 2025, shortly after the appellant returned from [a 14-day suspension for "Failure to Enter Accurate Time & Attendance, Lack of Candor, and Disrespectful Conduct"] the suspension, Alger [the appellant's second-level supervisor] noticed a picture of a "red wolf" in the office across the hallway, and when he looked at it, the picture had the text: "After giving it careful thought, I have decided to become worse." When he turned around, he noticed "various writing" on the whiteboard that "in the past had been sterile." Alger indicated the wall was previously bare.
Alger took a picture of the wolf poster. He also took a picture of the whiteboard in the appellant's office. In the upper left corner is the following text: "get fired, get in trouble, be brave, never stop fighting!" There is what appears to be a printout with the following text: "Behold the field in which I grow my fucks. Lay thine eyes upon it and thou shalt see that it is barren."
In the middle-consuming around 70% of the surface-is written: "FAFO!" The initial F has the word "fuck" written many times—Alger counted 25—mingled with scribbles…. The A includes "around" several times. The second F has the word "find" written several times. The terminal O has the word "out" written several times. The remainder of the whiteboard included 6 photographs, some numbers of unclear meaning, and something not fully legible in the right bottom corner.
Alger had participated in the suspension proceedings and believed that the information warranted reporting a potential insider threat, so he forwarded the information to G.S., his immediate supervisor, human resources, legal, and security departments.
4chan & Kiwi Farms Can't Sue U.K. Internet Regulator in American Court
"laintiffs' suit fails because they seek to use American courts as a sword against Ofcom rather than as a shield to protect themselves."
From Judge Rudolph Contreras (D.D.C.) last week in 4chan Community Support LLC v. UK Office of Communications a/k/a Ofcom:
This case spawned from a series of interactions between Plaintiffs, two American internet companies, and Ofcom. Plaintiff 4chan "runs an Internet imageboard website" that it describes as "controversial," while Lolcow administers a website called Kiwi Farms that operates as a "discussion forum that focuses on Internet culture" and is also self-described as "controversial." According to the Complaint, neither 4chan nor Lolcow has any "presence, operations, or infrastructure outside the territorial limits of the United States." …
Although the Court does not undertake to describe all of Ofcom's regulatory powers, two are particularly relevant here. First, the Online Safety Act gave Ofcom investigatory powers. Ofcom may issue "information notices," which require recipients to give Ofcom "any information that they require for the purpose of exercising, or deciding whether to exercise, any of their online safety functions." Ofcom may also "open an investigation into whether a provider of a regulated service has failed, or is failing, to comply with" certain requirements under the act, and "the provider must co-operate fully with the investigation." These investigative powers are backed by the force of law. "A person commits an offence if the person fails to comply with a requirement of an information notice." If a person is convicted of such an offense, they may be fined.
Second, the Online Safety Act equips Ofcom with two enforcement tools: (1) provisional notices of contravention and (2) confirmation decisions. Provisional notices of contravention put a provider on notice that, in Ofcom's view, "there are reasonable grounds for believing that the provider has failed, or is failing, to comply with any enforceable requirement … that applies in relation to the service." Enforceable requirements encompass a host of duties set forth in the statute—including illegal content, children's online safety, and record-keeping requirements….
The parties give slightly different accounts of their interactions. Starting with its interactions with 4chan, Ofcom tells that it initially made a determination that 4chan was subject to the Online Safety Act because the website represented that it had "over 20 million unique visitors per month and that over 7% of 4chan's user base [was] UK users." Moreover, the website "markets [its] platform to advertisers on the basis" of that 7% of British users, "the second largest percentage behind the United States."
Just a 10% Gender Gap in Attitudes on Lindsay Clancy Verdict
The 1950s: The Repudiation of Hate Speech Laws
In the 1950s, Americans confronted the precipitous rise of hate speech and hate groups, yet very few turned to hate speech laws as a solution.
In the middle of the night on Sunday, October 12, 1958, fifty sticks of dynamite exploded in the entryway of an Atlanta synagogue. The blast took place at the Hebrew Benevolent Congregation, the oldest and most prominent synagogue in Atlanta. Its rabbi was an outspoken integrationist.
Parts of the temple were blown apart. Not long after, staff at the news agency United Press International received a call from someone identifying himself as "General Gordon of the Confederate Underground." "We bombed a temple in Atlanta," he said. "This is the last empty building we will bomb.… Negroes and Jews are hereby declared aliens."
The bombing was one in a series of brutal assaults on Jewish and Black institutions in the South in the wake of the Supreme Court's 1954 decision in Brown v. Board of Education. Segregationists targeted synagogues that promoted integration as well as recently integrated schools. The Atlanta bombing was the seventh attack on a Jewish religious building in the South since 1957. There had been bombings or attempted bombings in Charlotte, Gastonia, Miami, Nashville, Jacksonville, and Birmingham.
The temple bombing was a shocking act of terrorism, and the reaction to it was swift. President Dwight Eisenhower denounced the attack and called for immediate investigation. The FBI and Atlanta police linked the bombing to five men who belonged to white supremacist hate groups, including the National States' Rights Party (NSRP). The NSRP, an avowedly fascist organization founded in 1949, embraced virulent antisemitism and a fanatical resistance to integration, part of its platform of "saving America and the white race and the preservation of the pure blood of our forefathers." The organization was known for its Nazi-like uniforms of white shirts, black ties, and armbands with the emblem of a thunderbolt over a Confederate flag.
Careful with Those Redactions
In Magistrate Judge Lara Eshkenazi's opinion Monday in Mercante v. Tarzia (E.D.N.Y.), defendant's counsel (Coleman) filed an exhibit containing "wire transfer instructions to [plaintiff's counsel's] firm's bank account":
Exhibit F purports to be redacted, and a white box with the word "REDACTED" covers the bank account information. The exhibit cover page also states that the bank account information is redacted. However, Mr. Coleman failed to adequately redact and remove the sensitive financial information, as the text is accessible by copying and pasting, or by clicking and moving the white box covering the text.
The court concluded that this didn't qualify as contempt of court (based on of its failure to comply with a protective order, "which prohibits materials marked 'confidential' from being filed on the public docket"):
While the mistake reflects some carelessness on Defense counsel's part, his initial attempt to redact the information and immediate acceptance of responsibility for his error leads this Court to conclude that Plaintiff has not carried her burden of demonstrating by clear and convincing evidence that Defense counsel was not reasonably diligent in attempting to comply with the Protective Order.
But the court granted sanctions against defense counsel, in the form of having to pay expenses for "data breach mitigation" services:
Today in Supreme Court History: September 21, 1981
9/21/1981: Justice Sandra Day O'Connor is confirmed by the Senate, 99-0.

Open Thread
What’s on your mind?
More from Jacob Mchangama on Frederick Douglass's Views on Free Speech
A short excerpt from Prof. Mchangama's Sept. 3 post (though the whole thing is much worth reading):
Frederick Douglass was a frequent target of vilification and smears—not to mention hostile mobs, stones and rotten eggs. His enemies—and sometimes even erstwhile allies—used press and pulpit to counter the growing influence of his oratorical genius and editorial prowess. Douglass' primary weapon consisted of words—but what to do when opponents turned this weapon against him? Was counterspeech a sufficient remedy, or should legal redress also be an option? What rules—legal or moral—should guide newspaper editors with power to shape public opinion? And as Douglass became an influential speaker, editor and publisher himself, did he practice what he preached?
Douglass the Defamed
"Nigger" and other racial epithets were routinely hurled at Douglass. But far more damaging than crude racist attacks were various allegations of sexual depravity, of lying about his life story, of being a paid anti-American agitator and of being a cowardly co-conspirator in the attack on Harper's Ferry….
To Douglass, the proper response to attacks on reputation and ideas was reciprocal counterspeech. Ideally the venue of attack would provide the target equal access to respond. When reciprocity was denied, press freedom provided a corrective mechanism. Media pluralism increased the chances that a fair-minded newspaper would give voice to those denied a right of reply elsewhere….
Two things underwrote Douglass' conviction that the law should protect the pen rather than restrain it: an extraordinary confidence in counterspeech, and a demanding conception of what press freedom required. A newspaper worthy of being called the "palladium of liberty" did not protect readers from controversy. It enabled accusations to be answered, exposed its own claims to adversarial testing and gave truth a chance to prevail over falsehood. Douglass did not merely preach that ideal. Across more than half a century of vilification, he practiced it with a record that—if not unblemished—was impressively consistent.
And, likewise, from his Sept. 11 post, which I likewise highly recommend:



