The Volokh Conspiracy

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Climate Change

District Court Dismisses Michigan's Hail Mary Antitrust Suit Against Fossil Fuel Companies

Michigan sued fossil fuel companies under an imaginative antitrust theory that the district court could not accept.

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Yesterday, in Michigan v. BP, a federal district court in Michigan dismissed the state's ambitious antitrust suit against fossil fuel companies alleging that they had conspired to suppress alternative energy sources resulting, among other things, in higher prices for Michigan consumers. While the same court had previously rejected the Trump Administration's attempt to preempt Michigan's suit, once confronted with the merits of the suit it found Michigan's claims wanting.

Both decisions seem correct to me. There was no legal basis upon which to prevent Michigan from filing suit against fossil fuel companies, but the suit that Michigan ultimately filed deserved to fail on its own terms. Michigan's theory was clever, but perhaps too clever to survive any meaningful legal scrutiny. As the Court explained, "Michigan seeks an antitrust remedy for many harms that do not qualify as
antitrust injuries," and that's not something the antitrust laws allow.

Here is a summary from yesterday's decision:

Defendants BP, Chevron, Exxon, and Shell (collectively, the Fossil Fuel Defendants) are four of the largest energy companies in the world. Defendant American Petroleum Institute (API) is the energy industry's largest trade association. The People of the State of Michigan (Michigan) filed this antitrust action alleging that in the 1970s, the Fossil Fuel Defendants realized that renewable energies would replace fossil fuels under normal market conditions. So, Michigan claims, the Fossil Fuel Defendants agreed, through API, to suppress renewable energies to maintain supra-competitive prices in the transportation and primary energy markets. According to Michigan, this conspiracy manifested itself in many ways, from suppressing renewable energy technology to hacking nonprofit climate activism organizations. And the conspiracy allegedly culminated in many harms to Michigan and its residents: among others, overpriced energy, a lack of options in the energy market, increased insurance premiums for households and depressing home values, and increased costs to implement measures mitigating the negative externalities of fossil fuel use. Michigan asks for treble damages for these injuries and an injunction to prevent future injuries. Michigan additionally requests the Court to impose civil penalties on Defendants and order them to disgorge the profits they earned from the alleged conspiracy.

Now pending before the Court are Defendants' Joint Motion to Dismiss (ECF No. 30) and API's Motion to Dismiss (ECF No. 32). The Court concludes that even if Michigan has adequately pled a conspiracy, the antitrust laws protect against none of the injuries for which Michigan seeks a remedy, except for overcharges for energy. Moreover, the distance is too great between the alleged conspiracy and Michigan's and its residents' overcharges to find that the conspiracy proximately caused the overcharges. The Court therefore holds that Michigan lacks antitrust standing to pursue its federal antitrust claims.

And from later in the opinion:

Michigan has alleged just one antitrust injury—overcharges for transportation and primary energy—and Illinois Brick bars Michigan from recovering damages as indirect purchasers under federal law. Nor can Michigan recover damages for the direct purchases it and its residents made from Defendants or enjoin them from continuing any alleged conspiracy because Michigan fails to plausibly plead that this conspiracy proximately caused and continues to cause overcharges. Because Michigan lacks antitrust standing to pursue any remedy under federal antitrust law, the Court dismisses Count I in Michigan's Complaint for failure to state a claim for relief

And having dismissed the federal claim (with prejudice), the court declined to exercise supplemental jurisdiction over Michigan's state-law claims.

It is worth noting that Michigan's claim in this suit is quite distinct from the claims made in various tort suits filed by state and local governments against fossil fuel companies, and this decision does not implicate or address the issues before the U.S. Supreme Court later this month in Suncor Energy v. Boulder County. For my posts on the Suncor case, see here.

 

Free Speech

Indictment Alleges Russia Tried to Arrange Murders of Russian Dissidents in the U.S. and Europe

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From the Indictment in U.S. v. Khrameev (D.D.C.), filed last week:

Since at least in or about 2024, a network of individuals working for the intelligence services of the Russian Federation (the "RIS Network") has conspired to conduct and conducted attacks and murder around the world, including within the United States. The RIS Network has, among other things, endeavored to surveil and murder Russian dissidents residing in both Europe and the United States; established a criminal network that has committed and attempted to commit acts of terrorism against civilian and military infrastructure in European countries that are aligned, or perceived to be aligned, with Ukraine; and sought to recruit, and recruited, individuals from and within the United States and elsewhere to carry out these acts.

This included allegedly trying to hire a contract killer for $40,000, to "murder a prominent Russian dissident they believed to be residing in the United States." You can also see more in the Justice Department press release on the matter.

New In Civitas: The Smithsonian Should Be Privatized

The Smithsonian Should Declare Its Independence from the Federal Government

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The Smithsonian Institution has been in the news. President Trump wants to place a "colossus" George Washington statute outside the National Museum of American History, as well as signs warning that the content inside the museum is biased. On the flip side, the Secretary of the Smithsonian is stepping down, and the institution bypassed Congress to build a new Latino American museum. Relatedly, the Smithsonian spent years and untold amounts of money to test the DNA in strands of Thomas Jefferson's hair to determine whether he in fact had children with Sally Hemmings.

The Smithsonian is not going to make it through the current fight. The Chief Justice may think he can smooth things over with press releases and surrogate statements. It won't work. My proposal in Civitas Outlook: The Smithsonian should declare its independence from the Federal Government.

Here is the introduction:

The Smithsonian Institution is a paradox. It simultaneously exists inside and outside the federal government. The nineteen museums and zoo are funded mostly by Congress but also receive private donations. The governing Board of Regents includes a mix of public officials and private citizens. Despite this commingled status, the Smithsonian Institute has long maintained its independence from the federal government. Historically, few conflicts arose, as these world-class museums appealed to Americans across the political spectrum. But in recent years, conservatives have been left fuming as the Smithsonian now preaches progressive orthodoxies on race, gender, and politics. 

Even as President Trump asserts further control of the museums, the Smithsonian Institution is urged to push back. The group seems to be bypassing Congress to construct a new museum for Latino Americans. This is not a fight the Smithsonian can win. If the Smithsonian truly seeks actual independence, there is only one path forward: formal separation from the federal government. And if the Smithsonian wants the benefits of government funding but not the burdens of government control, Congress should cut the Smithsonian loose.

And, I propose that Justice Breyer can step in to right the ship through the stormy waters:

Congress should involuntarily spin off the Smithsonian to a private entity. The new non-profit can maintain whatever land and assets it has, and federal appropriations would wind down over a period of time. Current government officials would roll off the board. Perhaps retired Justice Stephen Breyer, who has expertise in architecture, could serve as interim Chancellor. Indeed, freeing the institution from federal control could lead to innovation. It might make sense to separate the nineteen museums and the national zoo into separate entities. Some donors might be willing to support the panda exhibit, and other donors would support exhibits about stamp collecting. There is no real reason that all of these entities have to be subsumed by a unified sclerotic bureaucracy. 

The Smithsonian Institution stands at an inflection point. The trust earned since the nineteenth century has been squandered away. If Chief Justice Roberts truly believes in the independence of the Smithsonian, his greatest act of selfless institutionalism would be to let his own position go.

Or, the way for the Smithsonian to stop being dependent on the federal government is to stop being dependent on the federal government.

Chief Justice Rehnquist and Chief Justice Roberts Did Not See Eye-to-Eye About Dames & Moore v. Regan

In the South Texas Law Review, Rehnquist described his opinion in Dames & Moore as "similarly important" to Gibbons v. Ogden. His law clerk, and future Chief Justice, would disagree.

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I've always been fascinating by Dames & Moore v. Regan. Justice Rehnquist, the future Chief Justice, writes a landmark separation of powers ruling. And at the time his law clerk was John Roberts, also the future Chief Justice. I've explored before how Roberts contributed little or nothing to that written opinion. Back then, the Justices handled emergency docket cases on their own.

In the tariffs case, Roberts basically implored counsel to not even cite the case.

CHIEF JUSTICE ROBERTS: Counsel, you --you've already mentioned Dames & Moore three --three times, which surprises me a little because the Court in Dames & Moore went out of its way to say that it was issuing a very narrow decision it pretty much expected to apply only in this case.

But how did Rehnquist see the case? I recently stumbled upon something on point.

In 1984, then-Associate Justice Rehnquist visited my law school, the South Texas College of Law. He presided over the ribbon-cutting for the dedication of the new tower (where my office is located).

Rehnquist then delivered a speech on oral advocacy, that was published in the South Texas Law Review. Rehnquist also walks through the importance of oral arguments. There are many citations to Robert Jackson, for whom Rehnquist clerked--and had a somewhat complicated relationship. Rehnquist also contrasts the modern practice of short argument with the glory days of Daniel Webster where cases would be argued for days.

I was especially struck about this comparison Rehnquist drew between the oral argument in Gibbons v. Ogden and the recent case of Dames & Moore v. Regan.

The oral argument in the case was opened by Daniel Webster, who began at eleven o'clock in the morning of February 4, 1824. Webster argued for two-and-one-half hours in an "excessively crowded" courtroom. 9 Thomas J. Oakley, counsel for Ogden, followed and spoke for an hour on February 4th, and for the entire Court day of February 5th. Thomas Emmet spent the whole of the third day, February 6th, and two hours of February 7th, delivering his argument. The case was finally closed on the 9th by William Wirt for the appellant Gibbons. Five full Court days-twenty hours at four hours each day-were devoted to the argument of this important case.

By contrast, in Dames & Moore v. Regan,"a similarly important commercial case in which our Court granted certiorari before judgment a few Terms ago, two hours were allotted for oral argument. Without implying that one practice was good and the other bad, let us simply note for the moment that, in two cases of comparable importance, the time for oral argument was reduced from twenty hours to two.

It is striking that Rehnquist thought Gibbons and Dames & Moore were "similarly important" and of "comparable importance." I'm not sure that anyone at the time would have agreed with him. Surely no one today would draw that comparison. Gibbons remains the leading Commerce Clause case two centuries later. Chief Justice Marshall's decision was canonical. Dames & Moore was certainly important at the time, and resolved a serious conflict with Iran. But it but never pulled ahead of Justice Jackson's Youngstown concurrence. Indeed, Randy and I decided to remove Dames & Moore from the Fifth Edition of our casebook.

Still, this little vignette from my home institution reflects how perceptions often change over time.

I think the Justices often have a favorite decision. I recall Justice Scalia describing Crawford v. Washington, the Confrontation Clause opinion, as his most important ruling. Later, I think he moved District of Columbia v. Heller to the top of that list.

By contrast, Justice Thomas does not pick out a single opinion. I am making my way through Ted Cruz's excellent new book about Justice Thomas. Thomas relates that he doesn't much think about his opinions after he writes them:

During our final interview in December of 2025, I asked Justice Thomas whether he ever thinks about future generations when writing his opinions. Once again, he insisted that he doesn't. He simply looks at the facts in front of him, reviews the relevant law, and writes his conclusions in a way that the average American can understand. Then he moves on. His opinions, he insists, are not written in the way essays, speeches, and books are written.

I'll have more to say about Cruz's insightful book soon.

Free Trade

My New Montreal Economic Institute Paper on "The Legal Battle Over Trump's Tariffs: Implications for Canada"

The paper provides an overview of the legal vulnerabilities of the Trump tariffs against Canadian goods, and what can be done to prevent a recurrence of his abuses.

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President Donald Trump rips a paper in half, with the U.S. flag on one side and the Canadian flag on the other.
Illustration: Midjourney

Today, the Montreal Economic Institute published my paper on "The Legal Battle Over Trump's Tariffs: Implications for Canada." This overview of the legal weaknesses of Trump's tariffs and what can be done to curb future abuses of the same kind, may also be of use to Americans interested in these issues. Here is an excerpt:

Since returning to power in January 2025, President Donald Trump has sought to impose massive tariffs on imports from Canada, as well as numerous other trading partners. This policy is simultaneously harmful, unjust, illegal, and damaging to the US, Canadian, and world economies. It is also needlessly poisoning US relations with Canada and other crucial allies.

Trump's initial tariffs were invalidated by the US Supreme Court, and more recent ones may well also be struck down. But even if invalidated by courts, illegal tariffs and associated economic uncertainty may still persist for many months. Canada would do well to recognize that these US tariffs are unpopular and rest on shaky legal ground, and try to capitalize on the resulting opportunities.

In February 2025, President Trump tried to use the International Emergency Economic Powers Act of 1977 (IEEPA) to impose 25% tariffs on Canada, ostensibly to combat the smuggling of fentanyl across the US-Canadian border. On April 2, 2025, he invoked the same law to impose general 10% tariffs against most US trading partners around the world, plus additional massive tariffs against several dozen nations, supposedly to combat trade deficits. After extensive litigation, the US Supreme Court eventually invalidated these tariffs, in a case I helped litigate on behalf of five small businesses (eventually consolidated with two other cases).

The Supreme Court held that the IEEPA does not authorize the imposition of tariffs at all and emphasized that under the US Constitution, tariffs are a congressional power, not an executive one. The Court also held that the president is not entitled to unlimited power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time."(2) Three Supreme Court justices and two lower court rulings also concluded the IEEPA tariffs run afoul of the "major questions doctrine," which requires Congress to speak clearly when authorizing the executive to make "decisions of vast economic and political significance."

Immediately after the Supreme Court's ruling, the president tried to use Section 122 of the Trade Act of 1974 to impose similar 10% tariffs on imports from around the world (though Canadian imports were largely exempted). The US Court of International Trade rightly invalidated these tariffs on the grounds that Section 122 can only be used in response to a balance-of-payments crisis of a kind that generally cannot occur under a flexible exchange rate regime, and that Trump's interpretation of Section 122 would, if accepted, create an unconstitutional delegation of legislative power to the executive…. The case is currently on appeal….

Trump has also sought to use Section 301 of the 1974 Act to impose 10-12.5% tariffs on sixty US trading partners, including Canada, the European Union and many more. These tariffs were instituted on the pretext that all these countries allow the importation of goods made with "forced labor" in ways that somehow burden US exports…..

In this case, the "forced labor" investigation is a blatant sham designed to reach a predetermined conclusion; nor is there any real proof that the policies in question meaningfully burden US exports. In addition, the administration's interpretation of Section 301 violates both major questions of doctrine and constitutional constraints on the delegation of legislative power to the executive; Trump is trying to use Section 301 to claim the virtually unlimited tariff power the Supreme Court rejected in the IEEPA case…..

Three lawsuits challenging the Section 301 tariffs have already been filed…. The Court of International Trade is likely to make a decision within the next few weeks. Here, too, there is a significant likelihood the courts will ultimately rule against the president.

Most recently, Trump has tried to use Section 338 of the notorious 1930 Smoot-Hawley tariff act (which severely exacerbated the Great Depression) to try to impose 50% tariffs on various Canadian imports. Section 338 has never been used. Trump's attempt to exhume it may well also be struck down in court, because Section 338 has been superseded by later laws and because his invocation of it does not meet the provision's own requirements. In addition, his broad interpretation of Section 338 is subject to challenge based on the major questions and nondelegation doctrines; the latter constrains delegations of legislative power to the executive. At the time of writing, no legal challenges to the Section 338 tariffs have yet been filed, but it is likely some will be filed soon, by state governments, importers, or others….

Despite their unpopularity and the likelihood of defeat in court, the tariffs could still inflict harm and create uncertainty lasting for many months. It can take a long time for courts to resolve these cases…. Moreover, if the courts fail to block the tariffs until appellate litigation concludes, billions of dollars of illegal tariffs might be collected in the meantime, causing extensive economic damage. Trump used the IEEPA tariffs to collect some US$166 billion in illegal payments before the Supreme Court finally stopped him; even now, not all of the illegally collected funds have yet been refunded. But the courts might reduce such damage by refusing to stay early rulings against the new illegal tariffs.,,,

In addition, Canada should work with Americans who oppose the tariffs in order to enact new legislation—possibly including a new CUSMA trade agreement—that clearly blocks the unilateral imposition of future tariffs by the executive, so that no future president can repeat Trump's harmful actions. The new agreement should also require that any court decisions striking down illegal tariffs take immediate effect and not be stayed until appellate litigation concludes, which would limit the harmful impact of illegal tariffs. Such reforms almost certainly will not happen while Trump is in office…. But he has only about two years to go, much of which time is likely to be a "lame duck" period.

The Lightning Docket

The Circuit Justice, like Zeus on Mount Olympus, instantly strikes down wayward lower courts with a bolt of lightning.

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In the beginning, there was the merits docket--the slow, tedious certiorari process that can take a year or more to resolve a case. But that was too slow. Then there was the emergency docket--or is it the interim docket?--for cases that need expedited attention. But that was too fast. The rocket docket became a hybrid, where emergency cases were argued in an expedited fashion. That may have been just right for certain cases, but in other conflicts, something different was called for.

Welcome to the lightning docket. Now, for the third time in the span of a few weeks, Circuit Justice Kavanaugh has been drawn into Missouri's redistricting fight. And twice, so far, he was swiftly ruled against allowing the Republican map to go into effect. Indeed, as I noted, he ruled so quickly that he couldn't have possibly even read the briefs.

Last night, the intervenors filed an emergency application around 11:50 PM. Justice Kavanaugh almost immediately called for a response, due today at 2:00 PM. Does anyone think a word of Missouri's brief will matter? Almost immediately, expect an immediate stay.

Google tells me it takes a ray of light about 4 milliseconds to travel from the Supreme Court of the United States to the Thomas F. Eagleton U.S. Courthouse in St. Louis. I suspect it took Justice Kavanaugh even less time than that to settle this matter. The Circuit Justice, like Zeus on Mount Olympus, instantly strikes down wayward lower courts with a bolt of lightning.

Fortunately, the St. Louis Cardinals are out of town today, as that bolt could explode the lights at nearby Busch Stadium. Justice Kavanaugh would be just like Roy Hobbs in The Natural. The writ of mandamus is Wonderboy.

This is the lightning docket, where standing and the merits are irrelevant. All that matters is ending the game.

Thoughts and prayers to the lawyers who had to stay up all night writing a brief that will never be read.

Free Speech

Privacy Lawsuit Over Prof's Book That Mentions Former TA's Childhood Sexual Abuse Can Go Forward

An "endarkened feminist approach to revolutionizing teacher consciousness" is alleged to be unprivacied as well.

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Extraordinary Pedagogies: An Endarkened Feminist Approach to Revolutionizing Teacher Consciousness

From Judge Mary Kay Costello (E.D. Pa.) Friday in McCausland v. Penn. State Univ.:

Plaintiff Jonathan McCausland is a former graduate student and teaching assistant ("TA") at Penn State University …. In 2024, Jeanine Staples-Dixon, a tenured professor at Penn State, published a book that disclosed Plaintiff's childhood sexual abuse….

The facts, as alleged by plaintiff:

In 2018, Plaintiff began working as a TA for Professor Staples-Dixon's Philadelphia Urban Seminar at Penn State. This yearly seminar was held in the summer for a small number of students. As part of the course, Staples-Dixon instructed her TAs to share their "gender stories." She explained that extreme vulnerability "was an essential part of the pedagogical value of the seminar," and she wanted her TAs to model that vulnerability for her students.

To facilitate open and honest communication among seminar participants, every student was required to complete several intake forms pertaining to confidentiality. The forms stated that all information shared in class would be confidential, would not be shared outside the classroom without permission, and would be anonymized in the event of publication. Neither Staples-Dixon nor the TAs signed the confidentiality forms.

During the summer 2018 seminar, Plaintiff shared a gender story relating to how competition and athletics shaped his ideas of masculinity. However, Plaintiff felt that this story was "insufficiently vulnerable when compared to the highly personal gender stories share by other" TAs. During a planning session for the 2019 seminar, Plaintiff shared with Staples-Dixon that he had been sexually abused as a child by older boys who lived in his neighborhood. Staples-Dixon encouraged Plaintiff to share his story with seminar participants because it revealed the exact kind of extreme vulnerability that she wanted to discuss in the course.

Trusting the norms of confidentiality in the seminar and the agreements signed by every student, Plaintiff agreed. With Staples-Dixon's encouragement, Plaintiff continued to share his sexual abuse with seminar participants during the 2020, 2021, and 2022 sessions. Plaintiff graduated from Penn State in 2022.

In December 2024, Staples-Dixon published "Extraordinary Pedagogies: An Endarkened Feminist Approach to Revolutionizing Teacher Consciousness" through Teachers College Press. She based the book on the research she conducted during the seminar. The book included the following passage recounting Plaintiff's sexual abuse:

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Free Speech

Court Upholds Nonrenewal of URI Lecturer Who Circulated Combative "Declaration of Diversity," Allegedly Intimidated Students

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[1.] Some excerpts from Judge Steven McAuliffe (D.N.H.) Monday in the longish Fosu v. Univ. of R.I. Bd. of Trustees (D.R.I.); there's a lot more in the whole opinion. First, the backstory about the plaintiff:

In 2018, URI recruited and hired Dr. Gifty Ako-Adounvo, as Vice Provost for Global Initiatives and Senior International Officer. Dr. Ako-Adounvo asked for URI's help to locate employment for Fosu, her domestic partner, and when no outside employment options were found, URI appointed him as a visiting professor for the 2019 spring semester. URI appointed Fosu to a faculty of practice to teach in the Political Science Department for the 2019-2020 academic year. A faculty of practice is a one-year appointment and a non-tenure position.

Fosu did not have the academic qualifications to teach core curriculum classes in the Political Science Department. The Chair of the Political Science Department, Professor Marc Hutchison, decided that Fosu could teach elective courses as a faculty of practice. Fosu was to teach a course on the Supreme Court and constitutional law, and he also proposed a course on advocacy, which was approved. During the 2019-2020 academic year, Fosu taught elective undergraduate courses on constitutional law and advocacy and a graduate course….

[2.] The court discussed various bases for Fosu's appointment not being renewed; here's an excerpt of that, though there were other things happening as well. Note that, "[b]ecause Fosu has not responded to defendants' motion [for summary judgment]," the court "accept[ed] as uncontested defendants' recitation of the material facts":

On October 26, 2020, Fosu sent an email titled "Declaration of Diversity" to URI President Dooley, along with many others including members of the URI faculty and staff, URI students, law enforcement officials, and government officials. Fosu again targeted the Chief Diversity Officer, Mary Almandrez, and criticized the hiring process involving Dr. Sylvia Spears and Dr. Harry Alston. He accused the URI faculty and staff of racism, collusion, unethical conduct, and violations of the law.

The email included a boxed warning that "all parties mentioned in this letter and involved in the Dr. Harry Alston and Dr. Sylvia Spears interview process must not shred or destroy any documents, must not delete any emails or electronic messages from November 1, 2019 to present." Fosu also asserted that he and others invoked their Fourth Amendment rights.

In the email, Fosu notified President Dooley that Fosu's private corporation, Diversity Think Tank, was "headquartered" at URI and that it was the corporation's goal "to directly target and expose URI's indefensible and offensively prejudicial and discriminatory policies and the people who perpetuate intentional racism and normalized racist inequities through the machinations of white supremacy." …

[Fosu attached a] "Declaration of Diversity" that purported to be issued by "organized URI students." The Declaration began with a statement that "We as organized URI student, hold these facts to be self-evident, that there is a deliberate and racist dehumanizing exclusion of highly qualified African-Americans/Blacks, Latinos/Hispanics and Native Americans from positions of senior leadership and other positions throughout the university, including Administrative Staff, Deans, Department Chairs, Faculty, Functional Staff and Students." …

The Declaration included 46 "complaints and demands," one of which said:

We students will create a White-list of all those white professors who define and list themselves as diversity initiative conveners, race experts and researchers while they are silent and benefit from white supremacy and racism at URI, self-evident by the fact that no African-American with an ancestry to slavery and no Latino has been hired to a senior leadership position since 1892—and NOT ONE WHITE FACULTY member has expressed a problem with that fact, and the glaring fact that there are NO BLACK FACULTY members in the Criminal Justice Department and only a couple at the Harrington School. You white professors do not need research to find out about systemic racism at URI—you are part and parcel of the creation and maintenance of systemic racism at URI though your self-serving policies, unapologetic excuses, discriminatory behavior and your hegemonic culture of impunity. You should be ashamed of yourselves and we will help end this metastasized disease of racism. Your panel discussions about diversity and ethics should be our panel discussions about diversity and ethics, and we pick who should be on these panels.

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Free Speech

President Trump's Legal Argument in Support of Excluding CNN, MS NOW, and Politico from the White House

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Here's an excerpt from the opposition to plaintiffs' temporary restraining order motion (for my view on why the plaintiffs should prevail as to access to the main press briefing room, see this post):

While the D.C. Circuit has held that some areas of the White House grounds constitute a nonpublic forum, Sherrill v. Knight (D.C. Cir. 1977), that decision is wrong and should be overruled. But even under Sherrill, the President's actions must be sustained because the President has "compelling interest[s]" in enforcing minimum standards for bona fide journalists and safeguarding national security information…. [T]he President's actions were not retaliatory because the Government would have taken the same action anyway, notwithstanding Plaintiffs' speech criticizing the President—indeed, the President has not revoked access to other outlets that have equally criticized the President….

Sherrill v. Knight … held that because "White House press facilities hav[e] been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons." While Defendants acknowledge the D.C. Circuit's decision in Sherrill, that case was wrongly decided, and Defendants expressly reserve their right to argue so on appeal.

Access to the White House is a privilege, not a right. In Sherill, the D.C. Circuit emphasized that "[t]hese press facilities [were] perceived as being open to all bona fide Washington-based journalists[.]" The reality is much better described by the D.C. Circuit's more recent decision in AP v. Budowich (D.C. Cir. 2025). There, the court acknowledged that there are more journalists who wish to interview the President than he can accommodate; "[i]n deciding which journalists to speak with, the President may of course take into account their viewpoint." Accord Baltimore Sun Co. v. Ehrlich (4th Cir. 2006) (upholding State Governor's press directive that "no one in the Executive Department or Agencies" should speak with two named reporters because the "Governor's Press Office feels that currently both are failing to objectively report on any issue dealing with" that administration). As a result, the court concluded that at least for certain spaces, "the White House may consider journalists' viewpoints when deciding whether to grant access."

The same logic and standard should apply to access to White House grounds more generally. "Opening" the "White House" to some journalists should not "transform these spaces into nonpublic fora to which access must be granted on a viewpoint neutral basis." Indeed, there are currently a finite number of hard passes, and yet the White House briefing room and West Wing facilities can accommodate only so many reporters. Under the AP decision, this counsels against the conclusion that the White House is a nonpublic forum. See AP ("These spaces should not be classified as nonpublic fora because access to them is tightly controlled and highly selective…. When access to government property is very limited, considerations of viewpoint may be permissible.").

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Free Speech

"White House Access Is a Privilege—Not a Right"

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As I noted Friday, according to the D.C. Circuit (the federal appellate court with jurisdiction over D.C.), it's

  • unconstitutional for the government to exclude press outlets based on viewpoint from spaces that have been broadly opened to the press, such as the main White House press briefing room but
  • constitutional to do so as to spaces that aren't generally open to the press, such as interviews in the Oval Office.

The key precedent on this in AP v. Budowich (D.C. Cir. 2025), which upheld the exclusion of the AP from the Oval Office (because of AP's refusal to call the Gulf of Mexico "Gulf of America"), but reaffirmed (citing Sherrill v. Knight (D.C. Cir. 1977)) that

When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint.

I stand by this legal analysis, but wanted to pass along the White House's contrary argument that was posted yesterday:

Last week, President Donald J. Trump removed CNN, MS NOW, and Politico from the White House grounds after years of false reporting. The First Amendment protects their right to publish; it does not entitle them to a hard pass, briefing room seat, or place in the press pool.

Access changes are nothing new. What is new, however, is the sudden claim that it becomes sacred only when the outlets are friendly to the Radical Left. The rule was never "every outlet gets in." It was always "our side stays in."

For years, Democrat Administrations have restricted, punished, and locked out the press.

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Insider Trading

"Is Trump Media's Early-Access Feed Lawful?"

"Why a 50-millisecond jump on the president’s posts may implicate insider trading laws."

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Prof. Jack Goldsmith (Harvard Law) interviews Prof. John Coates (Harvard Law, former SEC general counsel). An excerpt:

Jack Goldsmith: President Trump regularly breaks news on his social media platform, Truth Social, where he posts market-moving presidential and White House announcements. The company now sells faster access to those posts for up to $100,000 a month. The advantage is apparently just 50 milliseconds, but that is enough to benefit traders.

To date, the early access has attracted more than a dozen subscribers. The arrangement effectively lets Trump profit off the presidency. Can this arrangement possibly be lawful? …

John Coates: … If you pay roughly $1.2 million a year to Trump Media, you get Trump's Truth Social postings ever so slightly before they hit the public website. And Truth Social, of course, is Trump's primary way to talk to the public.

In fairness, just one little nuance: it's not Trump himself selling this access. It's Trump Media. He did create that company. He only owns 41% of it. He's not an officer of it. His stock is in a trust. His son is the trustee. He's the sole beneficiary of the trust, and Trump can revoke the trust at any time. So I say all that just to be fair. But nevertheless, yes, I think you captured it correctly.

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First Amendment

D.C. Circuit Rejects Limits on Capitol Steps Demonstrations

Regulations limiting demonstrations on the Eastern Steps to those sponsored by members of Congress are unreasonable.

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Members of Congress often hold demonstrations on the Eastern Steps of the U.S. Capitol building. Ordinary citizens, however, are barred from holding demonstrations on those same steps without congressional sponsorship. This selective limitation is unacceptable under the First Amendment, even conceding that the Eastern Steps are a nonpublic forum. So concluded the U.S. Court of Appeals for the D.C. Circuit today in Mahoney v. U.S. Capitol Police Board.

Although all three judges on the panel agreed the regulations were impermissible, they disagreed on the rationale. Judge Rao, joined by Judge Henderson, wrote for the court. Her opinion begins:

Federal regulations prohibit the public from demonstrating on the Eastern Steps of the United States Capitol unless sponsored by a member of Congress. A minister seeking to pray and demonstrate on the Steps brought a First Amendment challenge to these regulations. The district court granted summary judgment for the minister and universally enjoined enforcement of the regulations.

Although the Eastern Steps are a nonpublic forum, the regulations are not reasonable because an individual's right to demonstrate outside the Capitol cannot turn on the discretion of a member of Congress. The universal injunction, however, exceeded the district court's equitable authority. We therefore affirm the grant of summary judgment for Mahoney on his First Amendment claim but vacate the injunction and remand for the district court to determine the appropriate scope of relief.

As Judge Rao explained, it would be permissible to reserve the Eastern Steps as a means of entering and exiting the Capitol building, but it is not permissible for the government to privilege those demonstrations endorsed or supported by members of Congress over those that are not.

"[T]he government has no authority to license one side to fight freestyle, while forbidding the other to fight at all." Mahoney v. Babbitt, 105 F.3d 1452, 1454 (D.C. Cir. 1997). As applied to the Eastern Steps, the Traffic Regulations are unreasonable because members may not exercise unbridled discretion over which individuals may speak on the Steps of the Capitol.

On the question of remedy, Judge Rao noted that the district court should not have entered a universal injunction under Trump v. CASA, as such an injunction exceeded the district court's remedial authority. Note, however, that as a consequence of the D.C. Circuit's decision, the government is effectively precluded from barring anyone from demonstrating on the Eastern Steps under existing regulations. This is because the D.C. Circuit's decision (unlike that of the district court) has precedential effect and dictates an equivalent outcome in any and all future suits brought against the Capitol Police challenging the enforcement of the existing rules. As with most challenges brought against agency regulations, the practical effect of a victory against the federal government in the D.C. Circuit is nearly always universal (a point I expanded on here).

Senior Judge Rogers dissented from Judge Rao's opinion, largely on the reasoning, as her opinion would also bar the Capitol Police from enforcing its regulations against Mahoney. Judge Rogers would have affirmed the district court's conclusions that the Eastern Steps are a traditional public forum (as opposed to a nonpublic forum) and that the regulations in question are not narrowly tailored to serve the government's asserted security interests.

Free Speech

Someone Trying to Vanish My Post About a No-Pseudonymity Decision

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[1.] First, the backstory: In December, I posted an item about a decision by Judge Jeannette Vargas (S.D.N.Y.) in Finley v. Przybylowski:

Plaintiff and Defendant are attorneys who met seven years ago as summer associates at different prominent law firms in New York City…. [Plaintiff] alleges that Defendant violently raped and sexually assaulted her on the night they met, causing her physical, professional, and psychological damage. Defendant denies all allegations of nonconsensual conduct…. Defendant claims that he and Plaintiff engaged in consensual sexual activity in May 2018. Defendant attests that he was "terminated from [his] employment with a top law firm on October 13, 2025 as a result of the Plaintiff's Complaint and false allegations," and that he fears that it would be "nearly impossible" to obtain employment with his name attached to this lawsuit, He also claims to fear that his physical safety could be placed at risk….

Defendant sought to proceed under a pseudonym, but the court said no:

[T]he economic and reputational harms that Defendant has faced and may face as a party to this action, substantial though they may be, are outweighed by the public interest in access to judicial proceedings….

I excerpted more of the opinion, which you can read here. Naturally, one can agree or disagree with the court's decision to deny pseudonymity, but in any event, my post passed along that decision.

[2.] Then, on July 22, Przybylowski's lawyer (a partner at a small but prominent law firm) sent a letter to Reason, with a "demand" that the post be removed:

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