The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

A common recurring nightmare is showing up for school as a student and being unprepared. I've often had a variant of that dream where I show up for the first day of class as a professor, and was unprepared to teach. In one dream I had years ago, I had to fake my way through teaching Pierson v. Post.

Last night I had a new variant of that dream, which was an actual Supreme Court nightmare. In the dream, I was co-counsel in a case set for argument. We are at the Supreme Court. The bench looks the same, but the bar section is much smaller. Chief Justice Roberts calls the case. Our lead counsel looks at me, and says "I can't do it." He steps down. I immediately panicked, as I hadn't prepared for the argument at all. But I realize someone had to go to the podium, so it would have to be me. I walk to the podium, and say "Mr. Chief Justice and may it please the Court." My mind then turns blank. I don't know anything. I can't even remember the name of the case. I don't even know the name of our client. I just stand there in silence (something that has never happened before.) Justice Thomas, as per tradition, asks the first question. I have no clue what he is asking me, though I realize it is a softball to help me out.

At that point I turn around to look at the lead counsel to see if he can jump in, and he shakes his head no.

I then say "We will rely on the submissions in our brief," and sit down. Given the circumstances, that was actually a pretty good save. I'm proud my dream-brain thought of that argument on the fly. The Chief Justice said "Thank you." I don't remember the Respondent arguing, and I didn't give a rebuttal.

After the argument concludes, I walk down to the cafeteria. I am dreading all the hate mail I will get, so I didn't even look at my phone. Several people at the Court are trying to cheer me up and tell me I did good by subbing in at the last second. I am still mortified.

So yes, the Supreme Court is always on my mind, even in my nightmares.

I searched through some old posts about law-related dreams. There were many: when Justice Kagan yelled at me, when Judge Posner yelled at me, when SCOTUS issued a cease and desist order against me, when Justice Kagan sang her hand-down of a Shelby County dissent, when the Solicitor General received an award from the Chief Justice, when Justice Thomas came to one of my book talks, when I showed Justice Breyer galleys of my book, and more.

8/30/1967: Justice Thurgood Marshall takes the oath.

Show Comments (108)

Some short excerpts from the >35K-word decision by Judge Noël Wise (N.D. Cal.) in Stanford Daily Pub. Corp. v. Rubio:

Plaintiffs, Stanford Daily Publishing Corporation and Jane Doe, a noncitizen student holding an F-1 visa issued by the United States, bring their claims against Marco Rubio, in his official capacity as Secretary of State, and Markwayne Mullin, in his official capacity as Secretary of Homeland Security …. Plaintiffs allege that, since March 2025, the government has changed its immigration policy and pattern of enforcement, namely by arresting, detaining, and deporting students with F-1 visas when those students use their freedom of speech to express opinions that the government does not like—such as expressing support or empathy for Palestinian people, or criticizing Israel's actions regarding Palestine or the conflict in Gaza.

Plaintiffs argue that the provisions of the Immigration and Nationality Act … that the government relies on for its authority to cancel student visas and initiate deportation proceedings are unconstitutional…. [Those provisions are that an alien may be deported] if "… the Secretary of State personally determines that the alien's [presence] would compromise a compelling United States foreign policy interest" … [and that] "[a]fter the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation."

The court concluded that the First Amendment generally fully protects resident aliens pretty much the same way as it protects aliens:

The First Amendment acknowledges no "distinction between citizens and resident aliens." The right to freedom of speech, and its correlative protection from government retribution based on hostility towards speech, has generally been accorded to noncitizens living in the United States. Am.-Arab Anti-Discrimination Comm. v. Reno ("AADC") (9th Cir. 1995); Bridges v. Wixon (1945) ("Freedom of speech and of press is accorded [to noncitizens] residing in this country.").

In AADC, the Ninth Circuit held the First Amendment prohibits deporting aliens for protected speech. As the court explained, "The Framers explicitly recognized that aliens within this country participate in a reciprocal relationship of societal obligations and correlative protection. 'As [aliens] owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage.'" Therefore, "the values underlying the First Amendment require the full applicability of First Amendment rights to the deportation setting." After all, "[i]f aliens do not have First Amendment rights at deportation, then their First Amendment rights in other contexts are a nullity, because the omnipresent threat of deportation would permanently chill their expressive and associational activities."

For reasons I'll explain below, I think this decision, like AAUP v. Rubio (D. Mass. 2025), is a plausible interpretation of the First Amendment precedents, but not the only plausible one. We'll likely know more when the First Circuit decides the appeal in that case, and then later when the Ninth Circuit decides the likely appeal in this one. And I expect that the matter will get to the Supreme Court if at least one appellate court rules in favor of the First Amendment claimants. Meantime, more from the opinion:

Show Comments (73)

Yesterday, in Stanford Daily Publishing Corp. v. Rubio, federal district Judge Noel Wise ruled that speech-based deportations of non-citizens violate the First Amendment. The decision is similar to previous rulings on recent Trump Administration efforts to deport non-citizen academics and students for speech the administration officials object to. But this one goes somewhat further in ruling that the statutes the administration is relying on are themselves unconstitutional, because they grant the Secretary of State nearly unlimited power to deport non-citizens if he deems their speech to be somehow adverse to a "compelling" US "foreign policy interest." Judge Wise's reasoning is similar to that of the the late Judge Maryanne Trump Barry (Donald Trump's sister), who ruled in 1996 that one of these laws was unconstitutional because of its extreme vagueness.

Here is an excerpt from yesterday's ruling:

[T]he Challenged Portion of the Deportation Provision is an intentionally broad delegation providing the Secretary of State leeway to suppress opinions that he deems harmful to foreign policy. The Secretary of State has wide latitude to enforce the provision with no limiting principles on how enforcement priorities are determined. The Challenged Portion of the Deportation Provision provides unlimited (and, in the government's view, unreviewable) discretion to the Secretary of State to decide which "beliefs, statements, or associations" endanger foreign policy. 8 U.S.C. § 1182(a)(3)(C)(iii). This cannot be squared with First Amendment protections…

Freedom of speech is illusory if we are only "free" to express complementary views about the government and its leaders. The true freedom in the United States is our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide- open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

I agree with Judge Wise's reasoning on these points. He also rightly strikes down the relevant laws based on their unconstitutional vagueness.

The decision also includes a massive compilation of evidence showing that the administration does indeed have a speech-based deportation policy, particularly when it comes to students and academics expressing pro-Palestinian or anti-Israeli views. I am, to understate the point, no fan of many of these views. But the First Amendment protects speech we (or the party in power) disapprove of no less than speech we like, and awful views no less than benign ones.

Like other similar recent rulings, this one - following Supreme Court precedent - distinguishes between speech-based initial exclusions and speech-based deportations (allowing greater scope for the former). I recognize lower courts' hands may be tied on this point. But I would argue both are equally unconstitutional.

I do wish Judge Wise had devoted a bit more effort to addressing the argument that the First Amendment doesn't cover non-citizens or protects them only to a very minor degree. This issue was better covered by Judge Young in AAUP v. Rubio (decided last September).

I have myself explained why there is no immigration exception to the First Amendment in earlier writings (e.g. - here, here, and here). Most importantly, as I have pointed out previously, the First Amendment - like most constitutional rights is phrased as a generalized limitation on government power - not a privilege limited to a specific group, such as citizens. And the First Amendment bars speech-based deportations even if the federal government can exclude non-citizens for other reasons:

A standard response to [my] view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.

Judge Wise's decision also covers a range of procedural issues that I will not attempt to comment on here.

In a forthcoming chapter in an Oxford University Press book on Academic Freedom in the Era of Trump, I explain why speech-based immigration restrictions violate academic freedom, as well as freedom of speech; and that includes the academic freedom of US-citizen students and researchers, as well as non-citizen immigrants.

In February of this year, I explained in testimony before the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government, why religion-based immigration restrictions also violate the First Amendment. This precludes proposed legislation to bar or deport all or nearly non-citizen Muslims.

Finally, I would like to commend the Foundation for Individual Rights and Expression (FIRE) for successfully representing the plaintiffs in this case. In a world extensive partisan bias and double standards, FIRE deserves respect for consistently defending freedom of speech and expression, regardless of whether the threat to it comes from the right or the left.

8/29/1967: Justice Neil Gorsuch's birthday.

Show Comments (346)

From the long opinion today by Judge Alvin Hellerstein (S.D.N.Y.) in People v. Trump:

Defendant Donald J. Trump, President of the United States, moved for leave to file a second notice of removal. I denied his motion, but the Court of Appeals vacated and remanded and, on remand, I was directed to consider (1) whether then former President Trump demonstrated good cause for filing an untimely notice of removal after the Supreme Court issued its decision in Trump v. United States (2024), and diligently sought removal; (2) whether removal under 28 U.S.C. §§ 1442(a)(1) and 1455(b)(1) is available at this stage of the state court proceedings; and (3) whether Trump's prosecution is for or relating to an act under color of federal office and whether he raises a colorable federal defense.

To remind people of the prosecution:

On March 30, 2023, a New York State grand jury indicted then former President Donald Trump on thirty-four counts of falsifying business records in the First Degree in violation of N.Y. Penal Law § 175.10…. The New York County District Attorney's Office (the "People") alleged that from August 2015 to December 2017, Trump orchestrated a scheme with others to influence the 2016 presidential election, by suppressing negative information about him to benefit his electoral prospects.

As a part of this scheme, the People alleged that, at Trump's request, a lawyer who worked for the Trump Organization as Special Counsel to Trump, Michael Cohen, "covertly paid $130,000 to an adult film actress shortly before the election to prevent her from publicizing a sexual encounter with" Trump. Cohen, following Trump's instructions, proceeded to pay the adult film star, Stephanie Clifford (aka Stormy Daniels), using a shell corporation. After the election Trump reimbursed Cohen, disguising each check "as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement." …

On December 16, 2024, the New York Supreme Court denied Trump's motion to dismiss the indictment and vacate the jury's verdict, filed in light of Trump v. United States. On January 10, 2025, the N.Y. Supreme Court sentenced Trump to unconditional discharge, and entered judgment. Trump's appeal to the Appellate Division, First Department, is pending….

Those who want to know more about removal, timeliness, presidential immunity, and more need to read the opinion.

Show Comments (36)

Yesterday, a divided Ninth Circuit handed down Richards v. Newsom, rejecting a facial challenge to a California law, California Penal Code Section 26806, which requires federally licensed firearms dealers to maintain digital recording systems on their business premises. The law was challenged on First Amendment, Fourth Amendment, and Fifth Amendment grounds. I wanted to focus on the Fourth Amendment issues in this post, as I'm not sure the majority's reasoning was right.

I hadn't heard of this law until yesterday, so my apologies if I'm getting the details wrong. But as I understand it, the law requires federally licensed firearms dealers (which I'll just call "gun shops" for short, if that's not too inaccurate) to have 24/7 video surveillance of "interior views of all entries or exits to the premises, [a]ll areas where firearms are displayed[, and] all points of sale, sufficient to identify the parties involved in the transaction." They have to store the video for at least a year, and agree to turn over video records in response to a search warrant or other court order.

From a Fourth Amendment perspective, this is a hard law school exam question. For starters, you have to figure out what to make of the order to have the system. Is the requirement of installation and use (to the extent a particular shop doesn't already have such a system) forcing the gun shop owner to act as a state actor, installing the device? If so, what exactly is searched, and whose interests are implicated— those of the gun store owner, or the customers and others in the gun store? Does this fall within the famously murky record-keeping framework of California Bankers Association v. Schultz, or is it more like an order to compel records as in Carpenter or Chatrie?

But wait, there's more. Under Maryland v. Macon, there's no reasonable expectation of privacy in a store open to the public, but here the surveillance is 24/7, and you don't know what might get recorded after work hours. So would there be Fourth Amendment rights in the video itself, or would it depend on which time window of video the government later tries to compel? And which of these issues can be addressed in a facial challenge, and how might the closely regulated industries exception apply or not apply, under City of Los Angeles v. Patel?

I don't have time for a long post to do the case justice, unfortunately. But here's one part I want flag that strikes me as at the very least incomplete, if not likely wrong: The state action analysis. At one point in the case, the panel discusses the plaintiffs' argument that the law made gun shops state actors under the Fourth Amendment. Here's what the court says:

Unable to articulate any physical intrusion or actual access of audiovisual recordings by the government, Plaintiffs instead argue that Section 26806 transforms FFLs into state actors for purposes of the Fourth Amendment. To support this argument, Plaintiffs argue that they satisfy three tests discussed in Brunette v. Humane Society of Ventura County for determining when a private party has engaged in state action under 42 U.S.C. § 1983: (1) the "joint action" test, (2) the "symbiotic relationship" test, and (3) the "public functions" test. See 294 F.3d 1205, 1210 (9th Cir. 2002). Again, we disagree.

This seems odd.

First, Fourth Amendment state action is generally an agency test that looks at whether the private party was acting as the government's agent, which in turn looks to knowledge, acquiescence, and the like. The Ninth Circuit has sometimes instead in Fourth Amendment cases tried to summarize state action analysis from outside Fourth Amendment law, which is what the panel is doing here, and was doing in Brunette. But even if you try to apply the different "tests" from outside Fourth Amendment law, the 2002 Brunette case did not purport to provide a comprehensive list of theories of state action.

Of particular relevance, Brunette did not ask the court to consider the "state compulsion" test. As the court put it in Children's Health Defense v. Meta Platforms, quoting Supreme Court caselaw:

As we have explained, the Supreme Court has identified four tests for when a private party "may fairly be said to be a state actor": (1) the public function test, (2) the joint action test, (3) the state compulsion test, and (4) the nexus test. Lugar, 457 U.S. at 937, 939, 102 S.Ct. 2744.

The Supreme Court in Lugar rooted this test in Adickes v. SH Kress & Co., which held that a restaurant would be a state actor if it refused service to a customer because of a state-enforced custom of segregating the races in public restaurants. Adickes noted:

For state action purposes it makes no difference of course whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law—in either case it is the State that has commanded the result by its law.

I wonder, why isn't a gun shop turned into a state actor by a statutory provision requiring action under this state compulsion test? Maybe the resulting act wasn't a search or seizure, and maybe it's not an issue that can be address in a facial challenge. But I'm not sure why whatever action is compelled wouldn't be state action.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! IJ clients Charles and Eli Copley own 50 wooded acres in Roxbury, Conn., where they've always welcomed hikers for a small hourly fee, an absolutely harmless use that is not visible to the neighbors. But the town says that might violate the zoning code—just not any part of the code that is written down—and the Copleys haven't been able to have any hikers for a year. Outrageous! Click here to learn more.

New on the Short Circuit podcast: Our #12Months12Circuits series makes it to the Eighth. There's irreparable harm and contractor speech.

Today in news you can use: Check your prospective interns' resumes and references! A Project Veritas undercover journalist fabricated a false identity to infiltrate a Democratic political consulting firm, and some of her recorded material was used in an embarrassing series of YouTube videos that caused major clients to ditch the firm. Firm sues reporters and wins a big verdict. D.C. Circuit (over a partial dissent): While her fraudulent actions may have been tortious, most of the videos were fully protected by the First Amendment, so the jury's award here must be overturned because it didn't specifically tie damages to the fraudulently procured aspects.
New Hampshire parents (and a grandparent) are barred from school property after wearing pink wristbands at high school soccer game in protest of a trans player on the visiting team. First Circuit: Seems like a First Amendment problem.
Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. First, Second, Sixth, Seventh, Ninth, Tenth, Eleventh, and now Third circuits: No. Read More

From today's decision by Judge Kyle Dudek (M.D. Fla.) in Noshirvan v. Couture (for a 2023 decision stemming from the same incident, see Plaintiff Sues Defendant, Alleging Defendant's "Niche Is Cancel Culture"):

This case begins with a viral video. Plaintiff Danesh Noshirvan is a citizen journalist who built a social media following by exposing bad behavior in public spaces. In January 2022, he posted a video of Defendant Jennifer Couture confronting a young woman in a Dunkin Donuts parking lot. The video caught fire, resulting in criminal charges for Couture and public backlash. Couture and her now-husband, Defendant Dr. Ralph Garramone, allegedly decided to get even.

According to Noshirvan, Couture and Garramone—acting individually and through Garramone's various business entities—hired a convicted computer hacker named Joseph Camp to retaliate. Camp, in turn, connected the couple with Defendant Patrick Trainor, a New Jersey lawyer who operates the Anti-Doxing League. What followed, Noshirvan alleges, was a retaliatory conspiracy by these defendants to systematically destroy his life and livelihood.

Trainor responded to Noshirvan's lawsuit with counterclaims for defamation and civil conspiracy. According to Trainor, Noshirvan used his social media account to falsely brand Trainor as a "Nazi," a "White supremacist," and a "pedophile."

Free Speech Libel

Show Comments (1)

8/28/1958: Cooper v. Aaron is argued.

Show Comments (374)

Bloomberg News (Jordan Fischer) seems to have broken the story. Culver is also accused of impersonating an NSA agent, a Supreme Court Special Master, and "the Director of Tailored Access Operations ('TAO'), a purported intelligence agency."

Show Comments (11)

From the long opinion in Rokhvand v. Herzfeld, decided by D.C. Court of Appeals Judge Roy McLeese, joined by Judges Corinne Beckwith and John Howard:

This case arises from three incidents that occurred on three separate days in March and May of 2024 during demonstrations in front of the Israeli embassy….

Ms. Rokhvand and Ms. Barmada were engaged in a multi-month demonstration in front of the Israeli Embassy in Washington, D.C. in protest of Israel's recent military actions in Gaza…. The protesters used a designated area outside the embassy to set up their display of flags, tents, and signs and to engage in "noise demonstrations," during which they spoke into megaphones, played Palestinian music, or used noise machines. They displayed large signs with messages against Israel's military actions in Gaza, as well as a sign offering earplugs to passersby, along the sidewalk.

Rabbi Herzfeld is the rabbi of a Washington, D.C. congregation and the founder and leader of a Jewish school. During his tenure in D.C., Rabbi Herzfeld has been involved in the wider community and worked with other local faith leaders and elected officials. Rabbi Herzfeld has close relationships with family and friends in Israel and was "devastat[ed]" by the October 7, 2023, Hamas attack on Israel. Rabbi Herzfeld did not know of Ms. Barmada or Ms. Rokhvand before his interactions with them at the Israeli embassy. Likewise, neither Ms. Barmada nor Ms. Rokhvand had heard of or met Rabbi Herzfeld before their interactions with him during the embassy demonstrations.

The first incident occurred in the middle of the day while Ms. Barmada and a few other protesters, not including Ms. Rokhvand, were at the protest site. According to Ms. Barmada, a group of men including Rabbi Herzfeld approached the protest site and began slowly walking through the demonstration and "intensely … looking around." Ms. Barmada heard Rabbi Herzfeld call her a "Hamas supporter" and a "terrorist" who supported "raping women" and "beheading babies." Another man in the group called Ms. Barmada a "Nazi bitch" and said that she should "go to the concentration camp."

Rabbi Herzfeld began speaking about the protesters, pointing at Ms. Barmada and referring to the protesters as the "wicked people" that "we will defeat." The group of men again approached the protesters and walked back and forth in front of them, during which time Ms. Barmada and Rabbi Herzfeld exchanged a couple of remarks and Rabbi Herzfeld took something out of his pocket and stood near Ms. Barmada with his group. Ms. Barmada perceived the interaction to be a threat designed to "intimidate" her. She felt "scared" and "harassed" and that the incident was "violating."

Free Speech Harassment

Show Comments (3)

In Goldstein v. CUNY, a Jewish Israeli professor at the Borough of Manhattan Community College—part of the City University of New York system—sued for discrimination and harassment over various actions (which started in Mach 2023) at BMCC that stemmed from the Israeli-Palestinian conflict. Today, Judge Jeannette Vargas (S.D.N.Y.) rejected Goldstein's claim; the opinion is long, and to keep the excerpt manageable I will exclude the long statement of facts, and rely on the judge's account of the facts within the analysis:

Plaintiff's claims under Title VII, the NYSHRL, the NYCHRL, and Section 1983 are largely premised upon expressions of political speech regarding Israel, Zionism, and the Palestinian conflict that the [Complaint] characterizes as antisemitic. This raises a preliminary question as to what extent such expressive conduct, no matter how personally offensive or hateful to individuals based upon a protected characteristic, can be actionable as workplace discrimination or harassment under federal or state antidiscrimination laws.

Title VII prohibits "harassment so severe or pervasive as 'to alter the conditions of the victim's employment and create an abusive working environment.'" Abusive and offensive speech, no less than abusive conduct, can undoubtedly cause a multitude of psychic harms that would render a workplace hostile.

Antidiscrimination laws do not create a categorical "'harassment exception' to the First Amendment's free speech clause," however. "[T]he Supreme Court has consistently held that expression motivated by bias, hatred, or bigotry falls within the First Amendment's protection." "[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Accordingly, while there is "no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause," it is equally clear that "[w]here pure expression is involved, anti-discrimination law steers into the territory of the First Amendment."

Show Comments (6)

Some excerpts from Judge Jacqueline Becerra (S.D. Fla.) today in Khorashi v. Beer; the analysis strikes me as correct:

This is a state-law tort action arising out of an online "doxing" incident that preceded Plaintiff's termination from her prior employer, Chartwell Law Offices LLP ("Chartwell"). Defendant Gadi Beer helped launch Chartwell in 2002 and served in senior leadership roles before leaving the firm in early 2023. Plaintiff alleges, upon information and belief, that he retained an equity interest in the firm and remained in regular contact with its founding partners. Defendant Beth Beer, Gadi Beer's wife, is a licensed attorney who served as a Regional Director in the U.S. Department of Education's Office for Civil Rights during the relevant period.

Plaintiff, a Muslim woman of Pakistani origin, was employed as an associate attorney in Chartwell's Miami office from 2018 until her termination on February 29, 2024. Throughout her employment, Plaintiff maintained a public Instagram account, "thatlawyermomlife," using her real name and the same profile picture that appeared on Chartwell's website, but her Instagram page did not include any reference to Chartwell or her place of employment.

After the October 7, 2023 attack on Israel, Plaintiff began posting prolifically in support of the Palestinian cause. She alleges she was "well-aware" that her posts "could be misconstrued by some people as antisemitism" and therefore consciously avoided negative references to Jews or Judaism, directing her criticism instead at Israel's government, the IDF, and Zionism. Her account was known to coworkers, some of whom followed and engaged with her content.

Beginning in late November 2023, Plaintiff alleges that an account using the handle "Beth Margot" attacked nearly every one of her posts about Gaza. The comments became "increasingly obsessive, vile and hateful," so Plaintiff blocked the account. Plaintiff later determined that "Beth Margot" was a pseudonym used by Defendant Beth Beer.

Free Speech Torts Israel

Show Comments (7)

Just came across this in Justice Stephen Field's opinion as Circuit Justice in Ho Ah Kow v. Nunan (C.C.D. Cal. 1879):

We have, for instance, in our community a large number of Jews. They are a highly intellectual race, and are generally obedient to the laws of the country.

Thank you, Justice! (Recall that this was a time when "race" was used to include what we would today call an "ethnic group," such as Norwegians, Italians, and the like.) Meantime, the broader context of the case, which isn't about us at all (not everything is about us):

The plaintiff is a subject of the emperor of China, and the present action is brought to recover damages for his alleged maltreatment by the defendant, a citizen of the state of California and the sheriff of the city and county of San Francisco. The maltreatment consisted in having wantonly and maliciously cut off the queue of the plaintiff, a queue being worn by all Chinamen, and its deprivation being regarded by them as degrading and as entailing future suffering.

It appears that in April, 1876, the legislature of California passed an act 'concerning lodging-houses and sleeping apartments within the limits of incorporated cities,' declaring, among other things, that any person found sleeping or lodging in a room or an apartment containing less than five hundred cubic feet of space in the clear for each person occupying it, should be deemed guilty of a misdemeanor, and on conviction thereof be punished by a fine of not less than ten or more than fifty dollars, or imprisonment in the county jail, or by both such fine and imprisonment. Under this act the plaintiff, in April, 1878, was convicted and sentenced to pay a fine of ten dollars, or in default of such payment to be imprisoned five days in the county jail. Failing to pay the fine, he was imprisoned.

The defendant, as sheriff of the city and county, had charge of the jail, and during the imprisonment of the plaintiff cut off his queue, as alleged. The complaint avers that it is the custom of Chinamen to shave the hair from the front of the head and to wear the remainder of it braided into a queue; that the deprivation of the queue is regarded by them as a mark of disgrace, and is attended, according to their religious faith, with misfortune and suffering after death; that the defendant knew of this custom and religious faith of the Chinese, and knew also that the plaintiff venerated the custom and held the faith; yet, in disregard of his rights, inflicted the injury complained of; and that the plaintiff has, in consequence of it, suffered great mental anguish, been disgraced in the eyes of his friends and relatives, and ostracised from association with his countrymen; and that hence he has been damaged to the amount of ten thousand dollars….

Equal Protection Race Discrimination Law & Government

Show Comments (12)

The Volokh Conspiracy

An Actual SCOTUS Nightmare

Today in Supreme Court History: August 30, 1967

Open Thread

First Amendment Broadly Protects Against Speech-Based Deportation of Noncitizens, Court Rules

Today in Supreme Court History: August 29, 1967

Open Thread

Federal Judge Concludes Then-Candidate Trump's Attempt to Remove N.Y. Hush Money Non-Reporting Prosecution to Federal Court Came Too Late

The Fourth Amendment and Laws Requiring Video Recording Inside Stores

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

"This Case Begins with a Viral Video" (and Goes on to Involve "the Anti-Doxing League")

Today in Supreme Court History: August 28, 1958

Open Thread

Prosecution for Forging Court Order, Purportedly from Chief Justice Roberts

No Anti-Stalking Order Against Rabbi Based on His Actions Opposing Anti-Israel Protest

Official Precedent from a Supreme Court Justice's Opinion: We Jews Are "a Highly Intellectual Race"

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

For America's 250th, Get 2 Years of Reason for $17.76