The Volokh Conspiracy

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The Domestic Emoluments Clause Returns To The Trump Presidential Library in Miami

The Trump Library will stand tall, but the plaintiffs have no standing.

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During the first Trump Administration, the federal courts got a crash course in the Emoluments Clauses. Shortly after Trump was sworn in, progressive groups brought suit in New York, Maryland, and the District of Columbia. They argued that foreign and state governments that patronized Trump properties were giving unconstitutional emoluments to President Trump. Seth Barrett Tillman and I filed a host of amicus briefs at the District Court, Circuit Court, and Supreme Court level. However, the plaintiffs never sought a preliminary injunction or any sort of expedited relief. Indeed, despite the fact that they claimed these cases were urgent and the fate of the Republic turned on stoping this foreign influence, the plaintiffs repeatedly requested extensions and continuances. At the end of the day, the clock ran out. By the time the case made it to the Supreme Court's merits docket, Trump was out of office, and the cases ended with a whimper.

Since Trump's second term began, I have waited with baited breath for suits based on the Emoluments Clause, as well as Section 3 of the Fourteenth Amendment, our other scholarly interest. But nothing came. Zero. Zip. Nada. I suppose the legal resistance has bigger fish to fry with all the strategic litigation in the First Circuit.

Well, the Emoluments Clause is back. The Constitutional Accountability Center, which brought litigation during Trump 1.0, has sued President Trump for violating the Domestic Emoluments Clause. This case, however, does not concern businesses patronizing any current Trump property. Instead, the complaint alleges that the Miami-Dade Community College and the state of Florida granted Trump an unconstitutional emolument by gifting land in Downtown to be used for the Trump Presidential library. President Trump is the defendant, as well as the Trump Presidential Library, Governor DeSantis, Attorney General Uthmeier, and a host of other state officials.

In 2017, the Constitutional Accountability Center filed suit on behalf of Senator Blumenthal and other members of Congress. That theory of standing was doomed to fail. Nine years later, the Constitutional Accountability Center invoke another theory of standing that is doomed to fail.

Who are the plaintiffs in this case? There are two individuals who live near the planned location of the library in downtown Miami. They complain that the tower will block their view of Biscayne Bay, increase traffic, diminish their "quality of life," and reduce the value of their property.

Another plaintiff is Sistrunk Seeds, also known as Dunn's Farm, which wants to operate an "urban farm" in downtown  Miami. Dunn claims that it had worked with Miami Dade College in the past, and wanted to build a farm across the street from Biscayne Bay, but can't because the land was given to teh library. There does not appear to be any contract or binding agreement--simply an expectation to have future discussions. The complaint admits as much: "The longstanding partnership between MDC and Dr. Dunn demonstrates that, at a minimum, MDC would have seriously considered Dunn's Farm's request for the land." The farm also claims a "diversion of resources" theory of standing.

Finally, there is a student at Miami Dade College who wants to work on the non-existent farm. The complaint states, "The emolument at issue has quashed Ms. Salcedo's opportunity to learn urban farming and nonprofit management skills on campus for academic credit." Maybe she can claim standing based on some magical beans that could grow into a beanstalk as tall as the new Trump library?

On January 22, 2017, I wrote an early blog post critical of the theory of standing in CREW v. Trump. I was met with a swift reply by Laurence Tribe. Let's see if anyone jumps on board this case.

Apart from standing, the Plaintiffs have a host of other jurisdictional hurdles. There is no cause of action. They are not within the zone of interest of the Domestic Emoluments Clause. They sued the President in his official capacity. And more. Plus the transfer of land is not an emolument. Seth and I have written on this topic.

As of yet, the plaintiffs have not sought a preliminary injunction. As they say, the process is the punishment.

These claims will not succeed, but there is a cost of losing, should this case ever make it upstairs. I can see six votes on the Supreme Court to kill diversion of resource standing, hold there is no implied cause of action for alleged violations of the Constitution, and eliminate any sort of "offended observer" standing based on seeing things that bother you. The plaintiffs here can radically set back civil rights law, all in a case that is doomed from the start. Wouldn't it be better to never bring this case in the first place? Plus, the plaintiffs filed in unfamiliar territory. They will not be protected by jurists like Peter Messitte and Emmitt Sullivan, with appeals to the friendly Fourth and D.C. Circuits. I question the wisdom of this suit.

Democracy

Unitelma Sapienza University Talk and Interview About "Threats to Liberal Democracy in the United States - And How To Counter Them"

Videos of my presentation and interview on this topic at a major Italian university.

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Earlier this week, I did a talk at Unitelma Sapienza University in Rome on "Threats to Liberal Democracy in the United States - And How to Counter Them."  The talk was followed by commentary from three Italian scholars: Prof. Carla Bassu (University of Sassari), Prof. Giovanna Tieghi (University of Padua), and Prof. Andrea Fiorentino (Unitelma Sapienza), and my response. Prof. Pier Luigi Petrillo (Unitelma Sapienza) moderated. I also did an interview on related topics for Unitelma Sapienza's "Leaders' Talk" program. The interview was conducted by  Prof. Petrillo and Prof. Fiorentino.

The talk and the interview covered a lot of ground, including what we mean by "liberal democracy," abuse of emergency powers, the perils of nationalism, threats to freedom of speech, immigration, tariffs, and more. I also discussed the relevance of many of these issues to European nations, as well as the US. Below are links to the videos for both events. First the talk:

And now the interview:

Many thanks to Prof. Petrillo and others at Unitelma Sapienza for organizing these two events!

 

New Draft Article: "Popular Conceptions of Fourth Amendment Curtilage"

The Supreme Court says everyone knows this. We decided to ask people.

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I'm very happy to post a draft of a new article, "Popular Conceptions of Fourth Amendment Curtilage," written together with my co-author Matthew Kugler, forthcoming in the Michigan Law Review.

The article picks up an idea I first pondered here at the Volokh Conspiracy back in 2018. The Supreme Court interprets the Fourth Amendment to extend the privacy of the home beyond the home's walls to an outside space it calls "curtilage," and it insists that what counts as curtilage, and the implied license to enter it, is intuitive and widely known. But is it? What do ordinary people really think about curtilage and implied license?

Here's the abstract of our new article:

Fourth Amendment protections outside depend on a legal concept called "curtilage." Entering the curtilage of a property normally requires a warrant unless the entry is within an implied license. According to the Supreme Court, the boundaries of curtilage and implied license are found largely in prevailing social norms—what the Court calls "the habits of the country." Judges tasked with applying curtilage doctrine are supposed to intuit these shared attitudes to determine what the police can and cannot do. But there is something missing: No one has ever asked the public what they think.

This Article presents the results of three empirical studies, involving 600 participants each, in which members of the public were asked what places count as curtilage and what visits to homes are covered by implied license. In the first two studies, survey participants were shown a series of images of various properties with an officer present and answered whether the officer was inside or outside the curtilage. In the third study, participants were given a set of home-visit scenarios and answered whether each visit was within or outside the implied license. The surveys covered the facts of both Supreme Court cases and prominent lower court decisions to see if the courts have it right.

We found that the courts have curtilage wrong but implied license right. In the doctrine, curtilage is limited to the area immediately around the home. But the public disagrees. To most people, privacy in the home extends to the entire property. If it's part of the property, it's private. In short, the public has a far more expansive conception of home privacy than courts allow. On the other hand, public perceptions of implied license very closely align with the caselaw. Courts have misunderstood curtilage, but they have accurately described the implied license. Going forward, Fourth Amendment law should change: Courts should either justify current curtilage protection on different rationales or else expand the curtilage line to match public opinion.

This is just a draft, so comments are very welcome.

Transgender Subpoena Leads To Transdistrict Struggle

A District Court in Rhode Island attempts to quash a subpoena issued by a District Court in Texas.

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The Food and Drug Administration opened an investigation of medical facilities that prescribe "off label" drugs to minors with gender dysphoria. The FDA has not determined if the use of these drugs for these purposes is safe or effective to treat gender dysphoria. The investigation began before the U.S. District Court for the Northern District of Texas. In July 2025, the Assistant Attorney General issued a HIPAA subpoena on Rhode Island Hospital (which includes Brown University Health) to determine if patients received misbranded drugs. The hospital, however, refused to comply with the subpoena.

On April 30, 2026, DOJ filed a petition to enforce the subpoena with the District Court in NDTX. That same day, Chief Judge O'Connor granted the government's petition. He ordered Rhode Island Hospital to provide all records within fourteen days.

On May 6, Rhode Island Hospital filed a notice of appeal to the Fifth Circuit, and the next day filed an emergency motion to stay. Among other arguments, Rhode Island argued that venue was not proper in NDTX. The government countered that venue was proper because there is an active investigation being carried out in NDTX. On May 10, Judge O'Connor denied the motion for an emergency stay. He found that venue was proper:

Second, RIH argues that this Court is not the proper venue to adjudicate the Government's petition.7 Title 18 U.S.C. § 3486(c) permits enforcement of an administrative subpoena in "any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he carries on business or may be found." According to the Declaration from the Acting Director of the Enforcement and Affirmative Litigation Branch there is substantial operational and decision-making control of the investigation being exercised at the U.S. Attorney's Office in the Northern District of Texas, along with several subjects and potential targets of the investigation located therein.8 The record therefore reflects that the investigation is being carried on in the Northern District of Texas and the Government's enforcement petition was properly brought in this Court. Accordingly, RIH has failed to show a likelihood of success on the merits as to its venue challenge.

FN8: 8 See generally Hsiao Declaration (Sealed) Ex. 1, ECF No. 10-1. The Government has presented the Court with ex parte information that supports its choice to enforce the subpoena in this Court and due to the sensitive nature of that information, it was provided ex parte. See In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) (finding no abuse of discretion where the district court relied on the government's ex parte submission in reaching its decision).

That was the litigation in Texas. But there was a parallel track on the other side of the country. On May 4, even before Rhode Island Hospital filed an emergency motion before Judge O'Connor, the Child Advocate for the State of Rhode Island (a non-profit) filed an emergency motion in the District of Rhode Island to quash the subpoena. On May 7, the United States filed a motion to stay or transfer venue. The court immediately denied that motion with a text order. On May 11, the District Court granted Rhode Island Hospital's motion to intervene. The group then filed an emergency motion to quash the subpoena. Judge McElroy ordered the United States to submit the sealed Hsiao declaration.

Back in Texas, on May 11, the United States informed Judge O'Connor that the government intended to comply and provide the sealed Hsiao Declaration. On May 12, Judge O'Connor ordered that the government could not release the sealed information to the parties:

However, the Government now seeks to disclose sensitive information to a party here—but in a seemingly parallel litigation—without having shown why the sealed or protected matters should be provided to it nor how that information would be protected. In fact, the Government's representation that it does not know what protections the information related to the grand jury proceedings or sealed information in the matter pending here will receive in the Rhode Island court cuts against disclosing it. In light of grand jury proceedings' dependency on heightened secrecy, the basis for sealing declarations, and the Government's failure to show that the information that it requests leave to disclose would be protected, the Court would be derelict in its obligation to hew strictly to Rule 6(e)'s exception, and undermine the reasons given for sealing, by granting the Motion as requested. Accordingly, it is ORDERED that the Government is prohibited from revealing any further sealed information or information concerning the grand jury investigation until it can show that "a particularized need" exists for the materials that outweighs the basis for and policy of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959)). The Government shall immediately distribute this Order to all members within or connected to this investigation, notifying them of the prohibitions set out herein and their obligation to comply with them. The Government may distribute a copy of this Order to the Rhode Island court.

But Judge O'Connor allowed the government to share the declaration with Judge McElroy in chambers.

The Court granted the Government's previous motion to disclose information related to the grand jury's existence because the Government specified that such information would be confined to in camera review by the Rhode Island court. That disclosure permitted the Government to disclose to the Rhode Island court that there is a legitimate investigation pending in this district, and responsive documents are due. Indeed, the Court has concluded as such, granted the Government's motion to enforce an administrative subpoena, and is superintending this matter.2 Were Rhode Island Hospital entitled to further sealed or secret information it may always move this Court for such access upon a proper showing.

On May 13, Judge McElroy issued a 24-page opinion granted the motion to quash the subpoena from NDTX and enjoined DOJ from seeking or receiving any documents pursuant to the subpoena. Judge McElroy was apparently shown the materials, but was not persuaded. She did not reference the sealed declaration. Judge McElroy acknowledged her order was completely unprecedented:

The Court is unaware of any similar case where a party has petitioned a court to quash an administrative subpoena that another court ordered enforced without prior notice or opportunity to be heard.

But she did it anyway. Indeed, Judge McElrod took a shot at Judge O'Connor:

The United States Department of Justice ("DOJ") possesses immense prosecutorial authority and discretion. As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary. DOJ has proven unworthy of this trust at every point in this case. It has misrepresented and withheld information to both this Court and the United States District Court for the Northern District of Texas (the "Texas court"). It did so in an obvious effort to shield it's recent investigative tactics—previously rejected by every other court to review them—from this Court's review, in favor of a distant forum that DOJ deems friendly to its political positions.1

FN1: 1 The presiding judge in the Texas court has branded "the Department of Justice, the world's largest law firm" a "frequent forum shopper." Opening Remarks from Judge Reed O'Connor [2024 TX Chapters Conference], The Federalist Society (Oct. 22, 2024), https://www.youtube.com/watch?v=HMTt9pxWBhA [https://perma.cc/GR7A-H6N8]. It is clear that the DOJ has done so here.

I attended Judge O'Connor's speech in 2024. The purpose of his remarks was to show that all litigants engage in forum shopping, including the Biden DOJ. This snippet takes Judge O'Connor's comments out of context. Here are the full remarks:

Just this year, in response to political pressure that named specific judges, the Judicial Conference took aim at single-judge divisions, especially those in Texas. Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges—only judges doing their level best to faithfully apply the law to reach the correct decision.

Notably, the proposal did not target longstanding forum-shopping—or as Judge Jim Ho put it, forum-selling—in bankruptcy courts or patent venues. Such cases impact our economy in the billions of dollars and were recently highlighted only due to an embarrassing scandal. Yet the practice in these areas remain untouched by reform efforts given the absence of comparable political pressure from commentators and political officials.

Instead, the proposal focused entirely on remedies the Department of Justice, the world's largest law firm and regular forum shopper, complained of—that is, injunctions and vacaturs. The reason for this was clear: the Judicial Conference was responding to external political criticism.

It takes some cheek for a District Judge in Rhode Island to accuse others of engaging in forum shopping. I've lost count of the number of anti-Trump actions filed in Boston, Rhode Island, and other places, that have no actual connection to New England, other than the fact that the First Circuit is a very friendly venue. Did Judge McElroy blink twice about why a case called California v. Department of Education was filed in Boston? Or when Judge Boasberg ordered a plane taking off from Texas to turn around? For whatever it is worth, it is far more likely for a nexus to be found in the Northern District of Texas than in Rhode Island. You could fit the entire state of Rhode Island in the DFW Metroplex, and you could fit the city of Providence inside the bounds of the DFW airport.

On May 14, today, Judge O'Connor unsealed his March 12 order, which indicated the materials could be shared with Judge McElroy.

So here we are. A District Court judge in Texas ordered that a subpoena must be complied with. A District Judge in Rhode Island quashed that subpoena. We now have a conflict that cuts to the heart of federal power. Perhaps not since the Dorr Rebellion, which gave rise to Luther v. Borden, has a Rhode Islander thrown such a wrench into our federal system of government. During the first Trump administration, I wrote about the prospect of dueling nationwide injunctions. Now, we have dueling transdistrict fights over transgender subpoenas.

Appeals will be mounted to the Fifth and First Circuits at the same time. I know a bit about this sort of conflict. For some time, I've been involved with litigation concerning Defense Distributed. Since 2018, we have been stuck in a quagmire: the District Court in Austin transferred the case to New Jersey, the Fifth Circuit asked the New Jersey court to return the case, the New Jersey court said no, and the en banc Third Circuit declined to interfere. (Stay tuned on what comes next in this case.)

I suspect the Supreme Court will have to settle this subpoena fight at some point.

Update: I updated the passages concerning the unsealing of materials.

The Antipreemption Court

Another decision where the conservatives line up against federal preemption.

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The Roberts Court is often derided as a pro-corporation Court. I've lost count of how many stories measure the Chamber of Commerce's success rate before the Supreme Court. The reality, however, is different. The Court often leans in a jurisprudential directions that corporations do not like. One leading example is preemption. As a general rule, corporate defendants favor broad preemption to avoid liability from state suits, while plaintiffs favor narrow preemption so they can bring state tort suits. But on the Supreme Court, things do not line up so neatly. Justice Thomas, a federalist, has long been a skeptic of broad preemption. I think Justice Gorsuch is in the same camp. Justice Kavanaugh, and to a lesser extent, Justice Alito, are the strongest votes to find broad preemption. That leaves (as usual) Chief Justice Roberts and Justice Barrett as the decision-makers. Unlike in most cases that are important to conservatives, there is not an automatic conservative majority to find preemption, and indeed, it may be hard to count to five.

I think we have something of an Antipreemption Court.

Consider three preemption cases argued this term.

First, Hencely v. Fluor Corp reversed the Fourth Circuit, and found that federal law did not preempt the state-law tort claim.  Justice Thomas wrote the majority opinion, joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Justice Alito dissented, joined by the Chief Justice and Justice Kavanaugh. As I noted at the time, these votes lined up with how the justices view preemption more generally.

Second, today the Court decided Montgomery v. Caribe Transport II, LLC. Here, the Court unanimously found that federal law did not preempt a state-law tort claim against transportation brokers. Justice Barrett wrote a delightful majority opinion. In only a few pages, she briskly walked through all the statutory arguments. She was confronted with an anomaly raised by the government, and responded: "The text of subsection (c)(2)(A) controls. Better to live with the mystery than to rewrite the statute." Amen.

Justice Kavanaugh wrote a concurrence joined by Justice Alito, finding that the preemption analysis is harder than the majority suggests. Ultimately Kavanaugh writes that Congress and the President can fix any problems.

The brokers and their amici raise serious concerns about the repercussions of state tort liability against brokers, and they may of course (among other possibilities) ask Congress and the President to change federal law.

That worked for Lilly Ledbetter! Still, the case was unanimous. Paul Clement, who argued Montgomery, usually does not lose 9-0. But the GOAT didn't get a single vote here.  [Update: Clement represented the Petitioner, and not the Respondent in this case. I got it completely backwards. He won 9-0. My apologies to the GOAT.]

The third preemption case, Monsanto Company v. Durnell, was also argued by Paul Clement. And if Hencely and Montgomery are any indication, I think Clement may lose this one. It won't be unanimous, but it may be 5-4 or even 6-3 for the plaintiffs. I wrote about Monsanto here and here. The Justices, even the conservative ones, are not going to engage in any creative reading of statutes to preempt federal law--even if the consequences are catastrophic. The answer will be, as Justice Kavanaugh suggested, for Congress to address the situation.

Islamic Law

North Dakota Court Refuses to Recognize Foreign Islamic Divorce

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From a decision last year in Ali v. Osman, from Judge Stephanie Hayden (N.D. Cass County Dist. Ct.); I just learned about it because it's on appeal to the N.D. Supreme Court:

Sara and Mojahid were married on February 5, 2001 in Sudan.

Under Islamic law, a husband has the right to initiate a divorce ("talaq") against his wife. All that is required to achieve talaq is for a husband to pronounce his intent to divorce his wife on three separate occasions, either verbally or in writing. The husband does not need to communicate his three pronouncements to his wife. She need not be present for them or even aware of them. A wife cannot object to a talaq.

Unbeknownst to Sara, Mojahid pronounced talaq three times prior to December 11, 2022. On or about December 11, 2022, Mojahid obtained a Certificate of Divorce from Sara in Sudan (the "Divorce Certificate") based on his pronouncement of talaq. When he obtained the Divorce Certificate, neither Mojahid nor Sara lived in Sudan. They lived in the United Arab Emirates ("UAE") at the time, which had been their residence since 2015. Additionally, Sara was not present when Mojahid obtained the Divorce Certificate. Mojahid emailed Sara the Divorce Certificate on December 19, 2022.

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Free Speech

Large Libel Models Strike Again? Google AI Allegedly Hallucinates Sex Crime Allegations Against Utah Man

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From a Complaint in Murray v. Alphabet, Inc., just removed yesterday to federal court, one of the sets of screenshots that the plaintiff says were hallucinated by Google's AI Overview:

As usual for such libel-by-AI lawsuits, the claim isn't "Garbage In, Garbage Out," in the sense that Google is creating a summary from inaccurate online allegations and is thus parroting the inaccuracies. Rather, plaintiff claims that the allegations appear only in the AI Overview, and that the AI algorithm composed the allegations itself.

The Complaint also alleges that,

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Free Speech

Starting Statement with "LOL" Doesn't Keep The Assertion in It From Being Potentially Libelous

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From yesterday's decision by Judge Dana Sabraw (S.D. Cal.) in Button v. Lopresti:

The Court accepts the Amended Complaint's allegations as true for purposes of resolving the motion to dismiss. Dusty Button was a world-renowned and well-known ballet dancer. She accumulated nearly half a million followers and subscribers on Instagram until December 2021, when she deleted her social media account due to "severe cyber bullying and harassment." Mitchell Button was a part of "Button Built," a team and brand for automotive design, builds, and work in the automotive industry. Mitchell Button also had nearly half a million followers and subscribers on his Instagram account, @button_built. He too deleted this social media account in 2021 because of "severe cyber bullying and harassment." …

In July 2021, Plaintiffs were sued in the United States District Court of Nevada for $131,000,000 ("Nevada Lawsuit"). The Nevada Lawsuit was publicized in thousands of articles, televised on news and media outlets such as Good Morning America, and published on social media pages and channels. [The lawsuit involved allegations of sexual assault. -EV] The coverage of the Nevada Lawsuit states Plaintiffs were sued in a civil action. Plaintiffs were never arrested, charged with any crime, or jailed in connection with the allegations contained in the Nevada Lawsuit. On January 6, 2025, Plaintiffs filed a motion for summary judgment in the Nevada Lawsuit. Plaintiffs posted a redacted version of the motion for summary judgment to their Instagram page, @WeTheButtons, which is "dedicated to providing accurate information about the [Nevada Lawsuit]." Defendant followed this Instagram page….

A third-party Instagram page, @trail.huntr, posted to Instagram a photo of Mitchell Button's automotive work. On January 27, 2025, Defendant posted a comment on this post, stating the Buttons were "locked up for some f*cked up stuff" and it was a "shame they weren't good people." The post by @trail.huntr was "shared" at least three hundred and twenty two times, and Defendant's comments were published to hundreds of thousands of people.

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The Harlan Institute Championship Round At The National Archives

High school students presented arguments about whether to declare independence in the presence of the Declaration of Independence.

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The Harlan Institute has completed the Fourteenth Annual Virtual Supreme Court Competition. This year, in honor of America's 250th Anniversary, the competition presented the case of Patriots v. Loyalists. This competition offered teams of two high school students the opportunity to research American history, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that the Declaration should be signed.

On April 7, we held the Final Four round at the Georgetown Supreme Court Institute. Presiding were Judge Kyle Duncan of the U.S. Court of Appeals for the Fifth Circuit and Judge Gregory Maggs of the U.S. Court of Appeals for the Armed Forces. In the first match, the Petitioners were represented by Team #24358 from Creekview High School in Texas (Lauren Hohltand Tzur Shalit). Their coach was Jonathan Cartray. The Respondents were represented by Team # 24627 from Regis High School in New York (Cullen Brennan and Nicholas Kim). Their coach was Eric DiMichele.

In the second match, the Petitioners were represented by Team #24346 from Greenwich High School in Connecticut (Kaitlyn Qin and Diana Davidson). Their coach was Aaron Hull. The Respondents were represented by Team #24266 from the Baldwin School in Pennsylvania (Eileen Wang and Sarah Tarka). Their coach was Athan Biss.

After two excellent, closely-matched rounds, Team #24358 from Texas and Team #24346 from Connecticut advanced.

After the Final Four round, we walked over the Supreme Court for lunch, a tour, and a lecture. It is always a treat to bring students to the Supreme Court for the first time.

In the evening, we held the Championship Round at the National Archives. On permanent display in the Rotunda are the Declaration of Independence, the Constitution, and the Bill of Rights. It was so special for students to debate the foundational question of independence in the presence of the Declaration. This may have been the first time since 1776 where the pro-Loyalist argument was presented before the Declaration.

Presiding were Judge Duane Benton (U.S. Court of Appeals for the Eighth Circuit), Judge Neomi Rao (U.S. Court of Appeals for the D.C. Circuit), Justice Evan Young (Supreme Court of Texas), and Judge Charles Eskridge (U.S. District Court for the Southern District of Texas). Both teams presented compelling arguments for and against independence. In the the end, the judges selected the Patriots, Lauren Hohltand Tzur Shalit, as the Champions. Diana Davidson was selected as best oralist.

This was a magical evening and a fitting tribute to 250 years of independence. My sincere thanks two Elizabeth Steeves (Yale) and Shemaiah DeJorge (Georgetown) for helping to coordinate this competition.

I have included photos and videos below the jump.

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Free Speech

Injunction Against Referring to Ex-Wife and Children in Online Media Violates First Amendment

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An excerpt from a long Washington Court of Appeals decision approved yesterday for publication, Asbach v. Couto (Judge Bradley Maxa, joined by Chief Judge Bernard Veljacic and Judge Erik Price):

Couto and Karina divorced in 2012. Since then, Couto has had multiple DVPOs [Domestic Violence Protection Orders] issued against him regarding Karina, [his now-adult son] Aiden, and [his minor daughter] NC. Testimony in these cases and previous DVPO proceedings show that Couto frequently screamed at his family, threw things, waved a knife around, and engaged in other coercive, aggressive, and emotionally manipulative behaviors. Aiden's DVPO expired when he became an adult in 2023.

In 2024, Couto published a YouTube video in which he attempted to reach out to Aiden now that he was an adult. In the video, he stated that Karina had a narcissistic personality disorder and lies. Couto characterized this video as an attempt at reconciliation with Aiden.

Karina filed petitions for another DVPO for herself and to renew the DVPO for NC. Aiden also filed a petition for a DVPO based on the YouTube video and an allegation that Couto had intentionally shown up to Aiden's workplace and at a grocery store where NC was.

The trial court granted the DVPOs for Karina and Aiden. The court also renewed the DVPO for NC for one year, to which Couto had stipulated. The court found that Couto's YouTube video was a form of coercive control. The court's DVPOs required Couto to remove any YouTube video regarding Karina, Aiden or NC [the removal order wasn't challenged -EV], and prohibited him from posting or sharing any videos or other media with references to them.

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Free Speech

No First Amendment Violation in Ohio Closing DEI-Related Offices and Committees

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From Rice v. Schell, decided two weeks ago by Judge Matthew McFarland (S.D. Ohio), but just posted on Westlaw a few days ago:

Plaintiff Darryl Rice serves as a tenured and endowed associate professor of management for the Farmer School of Business at Miami University in Oxford, Ohio. For over a decade, Plaintiff has taught courses such as Diversity and Cross-Cultural Management, participated in Diversity, Equity, and Inclusion ("DEI") programming, and contributed to entities like DEI-based committees at Miami University. In April 2025, Miami University began to wind down certain programs and entities related to DEI. Specifically, the following entities were eventually discontinued: (1) the Office of Transformational and Inclusive Excellence, (2) the Farmer School of Business DEI Service Committee, (3) the Center for Student Diversity and Inclusion, (4) Miami Regional's Center for DEI, (5) the Department of Management DEI Service Committee, (6) Miami University's Across-the-Divide Conference, (7) the Office of Transformational and Inclusive Excellence Newsletter, (8) the Inclusive Excellence Faculty Fellows Program, (9) the DEI Mastermind Program, (10) the Diversity and Inclusion Networking Event, (11) DEI Professional Development Day, as well as other activities that Plaintiff had used to fulfill his service obligations. For purposes of Miami University's Tenure Track Guidelines, "service" obligations include "activities which contribute to the University's and/or the campus's mission," serving on committees, and providing continuing education programs if they are not already incorporated within the "teaching" category.

Miami University explained to Plaintiff that these closures were mandated by the Advance Ohio Higher Education Act ("S.B. 1"). That being said, Miami University began the process of closures and reorganization before S.B. 1 officially took effect. The Court pauses here to highlight particularly relevant portions of S.B. 1. This legislation commands that "the board of trustees of each state institution of higher education shall adopt and the institution shall enforce a policy" prohibiting, among other things, the following:

(1) Any orientation or training course regarding diversity, equity, and inclusion [unless an exception applies];

(2) The continuation of existing diversity, equity, and inclusion offices or departments; and

(3) Establishing new diversity, equity, and inclusion offices or departments….

Moreover, the statute reads: "Nothing in this section prohibits faculty or students from classroom instruction, discussion, or debate, so long as faculty members allow students to express intellectual diversity." …

Plaintiff sued, claiming that the law violated, among other things, the First Amendment, but the court disagreed:

It … proves helpful to contextualize this matter by emphasizing what is at issue and—perhaps just as importantly—what is not at issue. This is not a case involving allegations that the Government is compelling particular speech. This is not a case in which a university itself brings suit to enjoin a law. This is not a case in which students allege constitutional violations. This is not a case in which a plaintiff has been threatened with disciplinary action for certain speech. This is not a case involving allegations of a professor's speech being stymied in the classroom or on the campus green. Rather, this dispute centers around a professor who brings suit to enjoin a university to reestablish certain committees, programming, and events….

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Recent Volokh Posts

1

The Domestic Emoluments Clause Returns To The Trump Presidential Library in Miami

2

Unitelma Sapienza University Talk and Interview About "Threats to Liberal Democracy in the United States - And How To Counter Them"

3

New Draft Article: "Popular Conceptions of Fourth Amendment Curtilage"

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"The Politics of Jobless Prosperity"

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Transgender Subpoena Leads To Transdistrict Struggle

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The Antipreemption Court

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North Dakota Court Refuses to Recognize Foreign Islamic Divorce

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Large Libel Models Strike Again? Google AI Allegedly Hallucinates Sex Crime Allegations Against Utah Man

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Today in Supreme Court History: May 14, 1973

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Open Thread

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