The Volokh Conspiracy Archive

In October, I wrote a column in Civitas Outlook about how President Trump was refighting the wars that the Watergate Congress waged against President Nixon. That piece concerned the spending power. In a follow-up column, I write about a recent opinion from the Office of Legal Counsel concerning the Presidential Records Act. Here too, Trump continues that fight.

In our current chaotic legal order, it is easy to get lost amid short-term controversies that will likely not endure beyond the present moment. Other far more enduring issues, however, often fly below the radar and garner little interest. Specifically, tensions between the legislative and executive departments persist regardless of which political party is in power. In modern American history, the greatest realignment of powers occurred in the wake of Watergate. Congress responded to President Nixon's actions by imposing greater oversight over the executive branch and the political process more generally. Presidents Gerald Ford and Jimmy Carter acquiesced to these restrictions. And the Burger Court, stacked with four Nixon appointees, upheld these expansions of legislative authority. In a Civitas Outlook essay from October, I explored how President Trump was refighting the "war" that Congress and the Burger Court "waged" against President Nixon in the context of presidential spending. The latest front in this war centers on presidential records.

Most law students learn that the Supreme Court ordered President Nixon to turn over his secret Oval Office recordings to the Watergate Special Prosecutor. United States v. Nixon (1974) directly led to the president's resignation two weeks later. But far fewer students study the fights over the recordings after Nixon resigned. Congress asserted control over all of Nixon's records and those of all future Presidents. However, a recent opinion from the Office of Legal Counsel argues that these five-decade-old laws were unconstitutional. Going forward, Trump will assert his own authority over his own papers, notwithstanding how the Watergate Congress tried to hamstring Nixon.

From the conclusion:

This opinion, by itself, has no immediate legal effect. Again, the PRA only has a meaningful effect after a President leaves office. (Unsurprisingly, there is already litigation afoot to try to halt this policy.) But the upshot of this opinion is that President Trump and his administration will not feel compelled to comply with the PRA. He will keep whichever documents he preserves, perhaps to be maintained at the future skyscraper Presidential Library in downtown Miami. It will turn to a future administration to decide whether to launch a Jack Smith redux and prosecute a predecessor President. The better course would be for future administrations to agree that PRA is unconstitutional and let these matters go. OLC's opinion will frustrate, rather than extend, the dangerous cycle of presidential lawfare.

I just came across this recent statute, Cal. Gov. Code § 6218 et seq.:

(b) (1) A person … shall not publicly post … the personal information [including just the name, see below] or image of a designated health care services provider, employee, volunteer, or patient if that individual … has made a written demand of that person … to not disclose the personal information or image. A written demand made under this paragraph shall include a statement declaring that the individual is subject to the protection of this section and describing a reasonable fear for the safety of that individual or of any person residing at the individual's home address, based on a violation of subdivision (a).

(2) A designated health care services provider, employee, volunteer, or patient whose personal information or image is made public as a result of a failure to honor a demand made pursuant to paragraph (1), or any individual, entity, or organization authorized to act on their behalf, may bring an action seeking injunctive or declarative relief in any court of competent jurisdiction. If a jury or court finds that a violation has occurred, it may grant injunctive or declarative relief and shall award the successful plaintiff court costs and reasonable attorney's fees.

(3) This subdivision [b] does not apply to a person or entity defined in Section 1070 of the Evidence Code [a publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed]….

Subdivision (a), referenced above, provides:

(a) (1) A person, business, or association shall not knowingly publicly post … on internet websites or social media, the personal information or image of any designated health care services provider, employee, volunteer, or patient, or other individuals residing at the same home address, with the intent to do either of the following:

(A) Incite a third person to cause imminent great bodily harm to the designated health care services provider, employee, volunteer, or patient identified in the posting or display, or to a coresident of that person, where the third person is likely to commit this harm.

(B) Threaten the designated health care services provider, employee, volunteer, or patient, identified in the posting or display, or a coresident of that person, in a manner that places the person identified or the coresident in objectively reasonable fear for their personal safety.

Subdivision (a) appears to likely be constitutional, because it's limited to constitutionally unprotected incitement and true threats. But subdivision (b) is not so limited, and would apply even to people who name abortion providers and gender-affirming care providers (and others) without any intent to incite violence or threaten violence.

And some relevant definitions:

(a) "Designated health care services" means gender-affirming health care services or reproductive health care services.

(b) "Designated health care services provider, employee, volunteer, or patient" means a gender-affirming health care or a gender-affirming mental health care provider, employee, volunteer, or patient, or a reproductive health care services provider, employee, volunteer, or patient….

(h) "Personal information" means information that identifies, relates to, describes, or is capable of being associated with a reproductive health care services patient, provider, or assistant, including, but not limited to, their name, signature, social security number, physical characteristics or description, address, telephone number, passport number, driver's license or state identification card number, license plate number, employment, employment history, and financial information….

(j) "Reproductive health care services" means health care services relating to the termination of a pregnancy in a reproductive health care services facility….

There's a proposal pending right now (introduced by five state legislators, including the speaker pro tem, and four state senators) that would extend the same rules for "immigration support service providers" (lawyers and others who "provide[]" "services … to the immigrant population").

This strikes me as pretty clearly unconstitutional: Much as I sympathize with people of any profession (or of no profession) as to whom some others have been inciting or threatening violence, the occurrence of such a threat can't give them the power to demand that others just stop naming them online. That's true whether the people are judges, abortion providers, police officers, ICE agents, immigration lawyers, or anyone else.

But it appears to be a new model of speech restriction that's being tried out for various categories of people in California, and it seemed to me worth flagging.

From Lupton v. Kardash, decided Thursday by the Hawaii Intermediate Court of Appeals (Judges Keith K. Hiraoka, Clyde J. Wadsworth, and Kimberly T. Guidry):

Following a bench trial, the District Court enjoined Kardash from, among other things, contacting, threatening, or harassing his neighbor [Lupton] … for a period of three years…. The uncontested FOFs [Findings of Fact] … stated:

[25.] [Lupton] testified that after [Kardash] moved in [Kardash] installed security floodlights which were directly aimed into [Lupton]'s residence and were continually kept on during hours of darkness ….

[26.] [Lupton] testified that the effect of the security floodlights from [Kardash]'s home caused [Lupton]'s bedroom to be lit up which makes it extremely difficult for [Lupton] to sleep at night …. [Lupton] testified that she asked [Kardash] at the outset if he could direct his security floodlights so that it was not pointed directly into her home and [Kardash] replied that [Lupton] should "buy some black out curtains." ….

[32.] [Lupton] testified that [Kardash]'s extremely loud piano playing would sometimes last for 3 to 4 hours and would occur at all times of the day and night to include 7:00 am in the mornings on holidays and as late at night as 10:30 and 11:00 pm.

[33.] [Lupton] testified that she worked at home remotely during the pandemic and that her work required the constant and consistent use of her telephone. Callers commented that they could not hear [Lupton] clearly over the telephone because of [Kardash]'s piano playing in the background and consequently, [Lupton] was called back to work at the office and could not work remotely.

4/14/1873: The Slaughter-House Cases argued.

On April 27th, the Supreme Court will hear oral argument in Chatrie v. United States, on the Fourth Amendment implications of geofencing. I have already posted the amicus brief I wrote for the Court in the case, and I have decided to write a series of posts in anticipation of the argument. This is the first.

For my first post, I want to suggest that Chatrie may end up being decided on relatively narrow grounds. That's relevant because the Chatrie case implicates a very wide range of potential issues. The Court granted cert on the first of Chatrie's proposed Questions Presented, which was "[w]hether the execution of the geofence warrant violated the Fourth Amendment." But because the opinion following the en banc proceedings below was just a one line affirmance—as I detailed last year, no particular reasoning commanded a majority of the Fourth Circuit judges—what that might mean is, at least in theory, very open.

Broadly speaking, there are two sets of questions in the case. First, was the obtaining of records from Google a Fourth Amendment "search" of the suspect's "persons, houses, papers, [or] effects" that presumably triggered a warrant requirement? And second, if so, was the warrant constitutional? Each of those two questions breaks down into a lot of different sub issues. This means that a lot of really important conceptual issues in Fourth Amendment law are potentially in play.

It wouldn't surprise me, though, if a majority of the Court bypasses a lot of those issues. I would guess it likely—and it wouldn't be a terrible idea—for the Court to rule narrowly on the warrant issue. If so, the majority would leave the search issue for another day. I thought I would say a bit about why I think that might happen.

First, this case gets to the Court very late in the Term. Oral argument is April 27th, the last week of argument. That's going to create intense pressure to identify a majority position quickly. It's been a long while since I was a law clerk, and the dates I vaguely recall for when majority opinions need to be circulated for the end of the Term may be wrong (or the current Chief may not follow the earlier guidelines). But whoever has the pen for the expected majority opinion is going to have to work super quickly. If you figure opinions are generally handed down by the end of June, that means there is only about 60 days until everything is out. And that means the Justices will need to agree on a rationale and get at least a majority on board very rapidly. Read More

[I wrote earlier today about the TRO motion that requested the order; but I wanted to repost some of that, with modifications as needed, now that the order had been issued.]

In her temporary restraining order application in Doe v. OpenAI (see also the complaint), plaintiff asked that OpenAI cut off ChatGPT access by a user:

Plaintiff Jane Doe is in immediate danger. Driven by a ChatGPT-fueled delusional spiral, her ex-boyfriend (the "User") stalked and harassed her for months—generating dozens of fake psychological reports about her via ChatGPT and distributing them to her family, friends, and colleagues, which escalated to leaving her voicemails threatening her physical safety.

His campaign culminated in encoding a death threat through ChatGPT and sending it to her family, just before he was arrested on four felony counts, including communicating a bomb threat and assault with a deadly weapon in January 2026. The criminal court deemed him incompetent and ordered him committed to a mental health facility, but—just two days ago—ordered his release due to a procedural failure by the state (a delay in transferring him from jail to the facility)….

Before he was arrested, the User was in constant communication with ChatGPT, which affirmed his delusions that he had cured sleep apnea, that the medical industry was out to get him, and that his ex-girlfriend was the problem. As he became more unhinged, it also began consulting on violent plans against third parties: in addition to helping him harass and threaten Plaintiff, his account contains conversations titled "Violence list expansion" and "Fetal suffocation calculation." [My read of the exhibits to the TRO application suggests that "fetal suffocation calculation" likely refers to the user's theories that maternal sleep apnea causes fetal asphyxiation, not to plans by the user to violently suffocate fetuses, though I appreciate that is guesswork on my part. -EV]

With the User now ordered to be freed for procedural reasons, he will be further emboldened in his belief that his worldview was exactly right. It is a certainty that he will immediately attempt to turn back to ChatGPT—again spinning out his delusions and planning violence on the platform….

From Chief Judge James Boasberg (D.D.C.) today in John "Farshid Do" v. Islamic Revolutionary Guard Corps:

Plaintiff is a naturalized citizen who has resided in the United States for over four decades since fleeing Iran. He, along with his family, was allegedly targeted by the Islamic Republic of Iran because of his father's role as a high-ranking official in the previous regime. He brings this action [under the Foreign Sovereign Immunities Act] against the Islamic Revolutionary Guard Corps (IRGC), the Ministry of Intelligence and Security of the Islamic Republic of Iran (MOIS), and officials and agents of both groups, alleging that Defendants tortured him during his imprisonment in Iran and have continued to subject him to "an ongoing campaign of harassment, surveillance, and physical attacks." …

Fearful that disclosure of his identity would subject him and his family to "physical harm, retaliation, and threats to personal safety," he moved to proceed pseudonymously. The Court denied Plaintiff's initial Motion as it did not explain why pseudonymity was warranted where the risk of retaliatory harm stemmed only from Defendants, who would have access to his identity. Plaintiff has now renewed his Motion, elaborating on the harm from others that could arise if his identity were publicly disclosed in connection with this lawsuit. The Court will grant the Motion, subject to any further consideration by the United States District Judge to whom this case is randomly assigned….

From the Standing Order in civil cases issued by Judge Ana Reyes (D.D.C.)

The Court is mindful of the raging debate spaces between sentences engenders. See James Hamblin, The Scientific Case for Two Spaces After a Period, The Atlantic (May 11, 2018). Team Two Spaces champions improved readability and processing speed. See Rebecca L. Johnson, et al., Are two spaces better than one? The effect of spacing following periods and commas during reading, 80:6 Attention, Perception, & Psychophysics, 1504–11 (2018). Team One Space questions the science and notes that two space use is the monospaced font relic of a bygone era. See Angela Chen, Please don't use this study to justify your horrible habit of using two spaces after periods, The Verge (Apr. 28, 2018). Personally finding that one space use makes documents impenetrable, the Court sides squarely with Team Two Spaces.

Moderate that I am, I tend to go with two spaces in e-mails but one space on the blog and in articles and briefs. But I'm not positive that this is right; and in any event, if I file anything before Judge Reyes, I will of course be using two spaces.

At last Friday's University of Virginia Federalist Society Originalism Symposium on "Originalism and Article III," I participated in a Rupe Debate with Professor Jed Shugerman on the resolution: "The Supreme Court's deference to recent executive actions on the emergency docket is consistent with the separation of powers."

Professor Shugerman and I had a fruitful and enjoyable exchange, even if he agreed with me on many points and we dove deep into the question of how the Supreme Court should have handled the stay applications in the various removal cases, such as Wilcox and Boyle. The video is below.

From today's opinion by Judge Darrin Gayles (S.D. Fla.) in Trump v. Dow Jones & Co, Inc.:

On January 15, 2025, Palazzolo emailed White House Press Secretary Karoline Leavitt advising her that Dow Jones intended to publish an article (the "Article") about a letter that President Trump purportedly sent to Epstein (the "Letter"). President Trump, through counsel, denied writing the Letter and warned Dow Jones not to publish the story. Two days later, the WSJ online edition published the Article.

The title of the Article—"Jeffrey Epstein's Friends Sent Him Bawdy Letters for a 50th Birthday Album. One was from Donald Trump"—is in bold print, with a subtitle below reading "[t]he leather-bound book was compiled by Ghislaine Maxwell. The president says the letter 'is a fake thing.'" …

The Complaint sets forth claims for defamation … alleges that the following statements from the Article are per se defamatory:

The letter bearing Trump's name, which was reviewed by the Journal, is bawdy—like others in the album. It contains several lines of typewritten text framed by the outline of a naked woman, which appears to be hand-drawn with a heavy marker. A pair of small arcs denotes the woman's breasts, and the future president's signature is a squiggly "Donald" below her waist, mimicking pubic hair.

It isn't clear how the letter with Trump's signature was prepared. Inside the outline of the naked woman was a typewritten note styled as an imaginary conversation between Trump and Epstein, written in the third person.

Voice Over: There must be more to life than having everything, the note began. Donald: Yes, there is, but I won't tell you what it is. Jeffrey: Nor will I, since I also know what it is. Donald: We have certain things in common, Jeffrey. Jeffrey: Yes, we do, come to think of it. Donald: Enigmas never age, have you noticed that? Jeffrey: As a matter of fact, it was clear to me the last time I saw you. Donald: A pal is a wonderful thing. Happy Birthday — and may every day be another wonderful secret.

I posted this morning about Doe v. OpenAI, the interesting and important lawsuit that alleges that "[d]riven by a ChatGPT-fueled delusional spiral, her ex-boyfriend [Doe's] stalked and harassed her for months—generating dozens of fake psychological reports about her via ChatGPT and distributing them to her family, friends, and colleagues, which escalated to leaving her voicemails threatening her physical safety." Regular readers of the blog might ask: What's with this Jane Doe business here? Why is this case being litigated under a pseudonym, when other tort cases generally aren't? (Pseudonymity is a rare exception to the general rule that people must sue in their own names.)

I therefore reached out about this to Doe's lawyers, thinking about whether I should file an opposition to pseudonymity here, as I have in past cases (see, e.g., Roe v. Smith (Cal. App. 2025)). The lawyers promptly responded that the pseudonymity will likely be temporary:

[W]e will not be seeking to have the case proceed in full with pseudonyms. Here's the context: our client's stalker is both dangerous and has lost touch with reality. He believes that there is a broad conspiracy that is plotting against him. He has made death threats to our client and, after being released from custody, made immediate contact with her. She currently has armed security and is deathly afraid.

We have reason to believe he will be arrested shortly. Once he is in custody, we don't believe there will be a need to continue to proceed with pseudonyms. We do think that if his name is made public in connection with this case, it will reinforce his paranoid delusions and significantly increase the likelihood that he harms our client or others who he has targeted.

In her temporary restraining order application in Doe v. OpenAI (see also the complaint), plaintiff asks, among other things, that OpenAI cut off ChatGPT access by a user; ensure that he not create new accounts; and notify plaintiff if the user does try to access ChatGPT. Here are the factual allegations:

Plaintiff Jane Doe is in immediate danger. Driven by a ChatGPT-fueled delusional spiral, her ex-boyfriend (the "User") stalked and harassed her for months—generating dozens of fake psychological reports about her via ChatGPT and distributing them to her family, friends, and colleagues, which escalated to leaving her voicemails threatening her physical safety.

His campaign culminated in encoding a death threat through ChatGPT and sending it to her family, just before he was arrested on four felony counts, including communicating a bomb threat and assault with a deadly weapon in January 2026. The criminal court deemed him incompetent and ordered him committed to a mental health facility, but—just two days ago—ordered his release due to a procedural failure by the state (a delay in transferring him from jail to the facility)….

Before he was arrested, the User was in constant communication with ChatGPT, which affirmed his delusions that he had cured sleep apnea, that the medical industry was out to get him, and that his ex-girlfriend was the problem. As he became more unhinged, it also began consulting on violent plans against third parties: in addition to helping him harass and threaten Plaintiff, his account contains conversations titled "Violence list expansion" and "Fetal suffocation calculation." [My read of the exhibits to the TRO application suggests that "fetal suffocation calculation" likely refers to the user's theories that maternal sleep apnea causes fetal asphyxiation, not to plans by the user to violently suffocate fetuses, though I appreciate that is guesswork on my part. -EV]

With the User now ordered to be freed for procedural reasons, he will be further emboldened in his belief that his worldview was exactly right. It is a certainty that he will immediately attempt to turn back to ChatGPT—again spinning out his delusions and planning violence on the platform….

The factual claims: From the Complaint in Doe v. OpenAI Found., filed Thursday in the California Superior Court (San Francisco):

OpenAI designed GPT-4o to never say no. It validated whatever delusion users presented to it, stayed engaged no matter how dangerous the conversation became, and treated every premise as one worth exploring, no matter how detached from reality it might be.

For a 53-year-old Silicon Valley entrepreneur experiencing a severe mental-health crisis, that design had devastating real-world consequences. GPT-4o fed his escalating delusion that he had developed a groundbreaking cure for sleep apnea, told him that his work threatened a trillion-dollar industry, and convinced him powerful people were coming after him. It even claimed he was being monitored by helicopters.

When his loved ones began to recognize that he was losing touch with reality and asked him to see a mental health professional, he asked GPT-4o its opinion. Instead of urging him to get help, it told him he was a "level 10 in sanity" and doubled down on reinforcing his delusions, insisting that it would take a "full specialist team" of "nine people" to replicate him. The system made him more certain and more dangerous.

By August 2025, OpenAI's own automated safety system picked up on just how dangerous he had become. It flagged him for "Mass Casualty Weapons" activity and deactivated his account. That could and should have ended the story, but it did not.

The next day, a human "safety" team member reviewed the user's account—which contained conversations titled "Violence list expansion" and "Fetal suffocation calculation," as well as chat logs naming specific individuals he was targeting and stalking in real life—and decided that deactivation was a "mistake" and that he was fine to continue using ChatGPT. OpenAI restored his account without restriction, without warning, and without notifying a single person named in his chat logs as a target—including Plaintiff Jane Doe, the user's ex-girlfriend, primary stalking victim, and the subject of a fixation that GPT-4o had dangerously deepened.

4/13/1896: Plessy v. Ferguson argued.

The Volokh Conspiracy

New in Civitas Outlook: Trump Refights the "War" That Congress and the Burger Court "Waged" Against President Nixon's Tapes

California Law Restricts Naming Abortion/Gender-Affirming Care Providers/Patients (+ Soon Immigration Support Services Providers?) …

Enough with the Piano!

Today in Supreme Court History: April 14, 1873

A Narrow Resolution on Geofence Warrants?: A Thought on Chatrie

Open Thread

Open Thread

Court Orders OpenAI to Cut off (for 3 Weeks) ChatGPT Access by Mentally Ill and Dangerous User

Iran, Pseudonymity, and Risk of Harm

Team Two Spaces

Rupe Debate: Judging the Supreme Court's Emergency Docket

President Trump's Libel Lawsuit Over Wall Street Journal Article on Epstein's Birthday Letters Dismissed

Why the Pseudonymity in Doe v. OpenAI?

Should Court Order OpenAI to Cut off ChatGPT Access by Mentally Ill and Dangerous User?

Lawsuit Against OpenAI for Allegedly Fueling User's Delusions, Leading Him to Harass Plaintiff (His Ex-Girlfriend)

Today in Supreme Court History: April 13, 1896

Open Thread

Open Thread

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