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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
US News and World Report Article Urging Colleges to Reject Trump's "Compact" With Higher Education
I coauthored the article with four other legal scholars from across the political spectrum.
US News and World Report just published an op ed I coauthored with four other legal scholars entitled "Colleges Must Reject Trump's 'Compact' To Protect Our Democracy." The four other authors are Rick Garnett (Notre Dame), Serena Mayeri (University of Pennsylvania), Amanda Shanor (University of Pennsylvania), and Alexander "Sasha" Volokh (Emory, also my co-blogger here at the Volokh Conspiracy).
To put it mildly, the five of us have widely divergent views on political and legal issues. Serena Mayeri and Amanda Shanor are prominent progressive constitutional law scholars. Rick Garnett is a leading conservative constitutional law and law and religion specialist. Sasha Volokh and I are libertarians (him perhaps somewhat more radical than me).
But we all agree colleges should reject the "compact" for both constitutional and other reasons. Here's an excerpt from the article:
We teach law at four different U.S. universities and come from a range of political and legal perspectives. But we all agree that universities should vehemently and unanimously reject the Trump administration's "Compact for Academic Excellence in Higher Education."
The federal Department of Education first sent this compact to nine universities in October, stating that signatories would receive preferential consideration for federal grants. The compact itself conditions benefits such as federal contracts, tax-exempt status, student loans and student visas on the adoption of various government prescriptions for admissions, hiring, tuition, curriculum, discipline, international student enrollment, grading and free speech….
Universities that have balked at – or outright rejected – the compact are correct to do so. The administration's proposal contains five fundamental causes for alarm:
First, the compact tramples upon the constitutional rights that allow us to debate and disagree without fearing reprisals from our universities or from the government….
Second, the compact amounts to a federal takeover of private institutions and state entities. It threatens to withdraw federal benefits from any university that does not submit to the federal government's demands. Such imposed ideological uniformity would undermine the competition that spurs innovation and empowers students and faculty to "vote with their feet" for the schools that best meet their needs.
Moreover, the compact's approach to federal funding is unlawful and unconstitutional: Conditions on federal grants to state governments, including state universities, must be clearly stated in advance, related to the funds' purposes and not unduly coercive….
Third, the compact violates the constitutional separation of powers. Under the Constitution, Congress, not the executive, wields the power of the purse. An executive agency – here, the Department of Education – cannot withhold funds or place new conditions on monies Congress has allocated without clear and explicit legislative authorization….
Fourth, the compact places universities in a dangerous financial position, facing draconian penalties without due process – or any process at all. The compact authorizes the government and private donors to claw back federal dollars whenever federal officials are displeased with a university's actions. Signatories to this agreement would forfeit their autonomy and the fundamental freedoms of their community members….
Finally, the compact is riddled with internal inconsistencies that render it both incoherent and dangerous. The agreement claims to value "merit" in higher education, but offers preferential consideration for federal grant money based on universities' adherence to government-mandated ideology rather than scientific excellence. It prohibits discrimination based on "political ideology" while requiring special protection for "conservative ideas," and exclusion of foreign students based on their speech and political views.
Some of the issues raised in the US News article are addressed more fully in my forthcoming book chapter, "How Speech-Based Immigration Restrictions Threaten Academic Freedom," Academic Freedom in the Era of Trump, Lee Bollinger and Geoffrey Stone, eds. (Oxford University Press, forthcoming). Ideological and speech restrictions on foreign students are a major element of Trump's Compact.
As we note in the US News article, many prominent schools have already rejected the Compact, including eight of the nine to whom it was initially offered. But a few less well-known institutions have expressed willingness to join it. We hope no more do so.
For those keeping score, I have, in the past, extensively criticized constitutionally dubious higher education policies advanced by Democratic administrations, such as racial preferences in admissions and Biden's massive (and illegal) student loan forgiveness program.
Lawsuit Challenging Trump Executive Order on "Divisive Race-Centered Ideology"—and Seeking Trump's Lung—Dismissed
From Jeanpierre v. Trump, decided Tuesday by Magistrate Judge Daphne Oberg (D. Utah):
Mr. Jeanpierre is the founder of a religious organization called the Black Flag….He claims President Trump's Executive Order 14253 violates his religious freedoms under the First Amendment and the Religious Freedom Restoration Act (RFRA),as well as Article 18 of the United Nations' Universal Declaration of Human Rights.
The Black Flag is a tax-exempt religious organization with various tenets. The central tenet: Mr. Jeanpierre can do whatever he "feel[s] like doing." A "Principle of Autonomy" grants him "autonomy of mind, body, spirit, emotion, and execution of will regardless of opinion of any and all other individual(s), entity, or entities." The Black Flag prohibits prejudice and discrimination "against any member, guest, or affiliated party based on race, color, gender, sexual orientation, national origin, age, disability, or socioeconomic status." The religion "mandates recognition of systemic racism, inequity, and historical injustice," imposes "a religious duty to actively engage in dismantling systems of oppression," and requires "active engagement in outreach programs and protective measures" for marginalized or vulnerable groups.
On March 27, 2025, President Trump issued Executive Order 14253, titled "Restoring Truth and Sanity to American History." As characterized in the complaint, the executive order "directs federal agencies to remove … 'divisive race-centered ideology' from the Smithsonian Institution and to restore monuments that have been 'removed or changed to perpetuate a false reconstruction of American history.'" The order refers to a historical revisionist movement which "seeks to undermine the remarkable achievements of the United States by casting its founding principles and historical milestones in a negative light."
Mr. Jeanpierre claims the order "opposes narratives that present American history as 'inherently racist, sexist, oppressive, or otherwise irredeemably flawed.'" It "prohibits 'exhibits or programs that degrade shared American values, divide Americans by race, or promote ideologies inconsistent with Federal law,' and targets changes made to historical presentations since January 1, 2020." And it "directs the Department of the Interior to ensure that monuments and memorials do not contain content that 'inappropriately disparage Americans past or living (including persons living in colonial times).'"
According to Mr. Jeanpierre, this executive order "effectively establishes a state-sponsored religious doctrine of American historical exceptionalism" and, as a result, is "a direct attack on the foundational tenets of [his] sincerely held religious beliefs." He alleges the order prevents Mr. Jeanpierre "from exercising his religious autonomy to perceive and interpret history according to his religious conscience." He alleges the order's "prohibition against depicting American history as 'inherently racist, sexist, oppressive, or otherwise irredeemably flawed'" impedes his "religious mandate to identify and confront … historical realities" and interferes with his "religious practice of acknowledging and addressing systemic racism" by "imposing a sanitized historical narrative that contradicts [his] religious understanding of reality."
Lawyer's "Repeated Claims That the Spurious Citations Resulted from Clerical Errors Unrelated to the Use of Generative AI Are Not Credible"
From Monday's opinion by Justice Frank Menetrez, joined by Justices Richard Fields and Michael Raphael, in Schlichter v. Kennedy:
Grotke's approach differs from those taken by the attorneys in Noland and Alvarez [two previous cases involving hallucinated citations]. Grotke has not admitted that the Writ and the AOB [Appellant's Opening Brief] contain hallucinated citations that were produced by generative AI. Grotke admitted that he used AI in some fashion when preparing the AOB and that it was "possible" that he used AI in some fashion when preparing the Writ. But he maintains that the four spurious citations resulted from clerical error and that he intended to cite the actually existing cases for the propositions described in the declaration that he filed in response to our order to show cause. We find that Grotke's claims are not credible.
It is difficult to understand how Grotke's four spurious citations could possibly be mere clerical errors, and Grotke has not intelligibly explained how it would be possible. The spurious citations do not involve the mere omission or addition or transposition of one or several digits. Rather, all four spurious citations are completely different from the correct citations for the actually existing cases that have those case names. Grotke's spurious citations bear the hallmarks of hallucinated citations produced by generative AI. "[H]allucinated cases look like real cases. They are identified by a case name, a citation to a reporter, the name of a district or appellate court, and the year of the decision. [Citation.] But, they are not real cases."
Exclusion of Students for Justice in Palestine from U Missouri Homecoming Parade May Have Violated First Amendment
From Mizzou Students for Justice in Palestine v. Choi, decided earlier this month by Judge Stephen Bough (W.D. Mo.):
Plaintiff Mizzou Students for Justice in Palestine ("MSJP") is a registered student organization at the University of Missouri ("the University" or "MU"). MSJP is dedicated to advocating for Palestinian rights by raising "awareness on campus of the historical and ongoing injustices committed against Palestinians." MSJP has hosted dozens of events, including "marches, lectures, and panel discussions."
The University hosts an annual Homecoming Parade. In the fall of 2024, MSJP applied to be part of the Homecoming Parade for the first time. MSJP planned to perform a traditional Palestinian dance and pass out Palestinian sweets. It also planned on displaying signs that read "Ceasefire Now" and "Stop the Genocide." Dr. Choi is the Chancellor of MU. Although MSJP initially believed that its application to participate in the 2024 Homecoming Parade had been approved, Dr. Choi ultimately denied the application, citing concerns related to safety….
The Free Speech Clause restricts the government's regulation of private speech, but does not regulate government speech…. In determining whether "the government intends to speak for itself or to regulate private expression[,]" [this Court] … is driven by a case's context rather than the rote application of rigid factors [and looks to] … the history of expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression." Shurtleff v. City of Boston (2022)….
[a.] History of Expression
Under the history of the expression at issue factor, the Court looks to both the specific history of the MU Homecoming Parade and homecoming parades in general. The Complaint alleges that "[t]he University of Missouri has hosted an annual homecoming celebration for over 100 years. The University's Homecoming Parade is one of the oldest homecoming traditions in the country, with some even touting it as the very first homecoming tradition by an American university" and that "[t]he Homecoming Parade has long been a place for the expression of political and social messages, including ones widely considered controversial or offensive."
The Complaint further alleges that "[t]he Homecoming Parade has welcomed political campaigns and activist groups of all kinds, including many that people would find controversial or offensive." Finally, the Complaint alleges that "[e]ntities across the spectrum—from local businesses to student organizations—participated in the [2024] Homecoming Parade."
Today in Supreme Court History: November 20, 1910
11/20/1910: Justice William Henry Moody retired.
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Chancellor James Kent on Hamilton's Federalist No. 77 and Modern Academic Commentary
A guest post from Professor Seth Barrett Tillman.
I am happy to pass along this guest post from Professor Seth Barrett Tillman, which concerns how best to understand Alexander Hamilton's analysis in Federalist No. 77. This topic is once again very timely in light of the ongoing litigation over the President's removal power. And, once again, Tillman offers a correction to scholars who misread Hamilton. Make sure you read till the end.
***
As readers of this blog will know, there is a long-standing debate about the scope of the President's and Senate's appointment and removal powers. That debate has been shaped by the language of the Appointments Clause (referring to the Senate's "advice and consent" power), ratification era debates, including Hamilton's Federalist No. 77, debates in the First Congress, and, of course, subsequent executive branch practice, legislation, judicial decisions, and commentary.
In 2010, I attempted to make a modest contribution to this debate. Without opining either on the constitutional issue per se or on the meaning of the Appointments Clause, I argued that Hamilton's Federalist No 77 was not speaking to removal at all—at least, not removal as we think about it today.
In Federalist No. 77, Hamilton stated: "The consent of th[e] [Senate] would be necessary to displace as well as to appoint." 20th century and 21st century commentators have uniformly understood Hamilton's "displace" language as speaking to "removal." (Albeit, there have been a few exceptions over the last one hundred years.) My modest contribution was to point out that "displace" has two potential meanings. "Displace" can mean "remove," but it can also mean "replace." This latter meaning is, in my view, more consistent with the overall language of the entire paragraph in which Hamilton's "displace as well as to appoint" statement appears.
Hamilton wrote:
It has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the chief magistrate therefore would not occasion so violent or so general a revolution in the officers of the government, as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change, in favour of a person more agreeable to him, by the apprehension that the discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision, which connects the official existence of public men with the approbation or disapprobation of that body, which from the greater permanency of its own composition, will in all probability be less subject to inconstancy, than any other member of the government. [bold and italics added]
Likewise, Hamilton, on other occasions, used "displace" in the "replace" sense. See, e.g., Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq. President of the United States [24 October 1800] ("But the truth most probably is, that the measure was a mere precaution to bring under frequent review the propriety of continuing a Minister at a particular Court, and to facilitate the removal of a disagreeable one, without the harshness of formally displacing him."); Alexander Hamilton to the Electors of the State of New York [7 April 1789] ("It has been said, that Judge Yates is only made use of on account of his popularity, as an instrument to displace Governor Clinton; in order that at a future election some one of the great families may be introduced.").
Similarly, Justice Story expressly adopted the "replace" view of Federalist No. 77. Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833) ("§ 1532. … [R]emoval takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself. § 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . ." (emphasis added)).
More recently, it appears, although one cannot be entirely sure, that Justice Kagan has adopted the "replace" interpretation of Federalist No. 77. Kagan wrote:
In Federalist No. 77, Hamilton presumed that under the new Constitution '[t]he consent of [the Senate] would be necessary to displace as well as to appoint' officers of the United States. He thought that scheme would promote 'steady administration': 'Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained' from substituting 'a person more agreeable to him.' [quoting Federalist No. 77] [bold added]
Seila Law LLC v. CFPB, 591 U.S. 197, 261, 270 (2020) (Kagan, J., concurring in the judgment with respect to severability and dissenting in part). "Substituting" is, in my opinion, akin to "replace."
However, in a 2025 article in California Law Review (at note 225), Professors Joshua C. Macey and Brian M. Richardson discuss both Federalist No. 77 and Joseph Story's interpretation of Federalist No. 77. Macey and Richardson wrote: "Joseph Story's Commentaries interpreted Federalist 77's reference to 'dismissal' to refer plainly to removal." There are three errors here. First, why is "dismissal" in quotation marks? It does not appear either in Federalist No. 77 or in Story's Commentaries, at least not in the sections under our consideration. Second, Story adopted the "displace" means "replace" view. And third, the issue is not "plain." We all make mistakes. In my view, this was a mistake on Macey and Richardson's part.
Macey and Richardson then write: "Notably, Chancellor [James] Kent, in a letter, attributed Story's interpretation to the original text of Federalist 77, an error which was repeated both in nineteenth-century histories of removal and by Chief Justice Taft's law clerk in connection with Taft's decision in Myers [v. United States]." Id. at note 225. Macey and Richardson cite two publications by Professor Robert Post in support of this view, but they do not cite any original, transcript, or reproduction of Kent's letter. This sentence of theirs is a Gordion knot. I have made some effort to cut this knot. Let me start by saying that, as best as I can tell, Kent's letter is from 1830, and Story wrote in 1833. So I suggest there was no way for Kent to attribute or misattribute anything by Story. Macey and Richardson are not entirely at fault. The error is in some substantial part Professor Robert Post's, and the concomitant error, by Macey and Richardson, is their (all too understandable) willingness to rely on Post and their failure to look up Kent's actual letter. Still, for reasons I explain below, Macey and Richardson have done modern scholars a valuable service—for which I thank them. (And, no, this is not sarcasm.)
To summarize: Macey and Richardson rely on Robert Post. Post is quoting Chief Justice Taft's researcher: William Hayden Smith. And William Hayden Smith is quoting Chancellor Kent. We are four levels deep—so, it is hardly surprising that one or more mistakes and misstatements creep into the literature.
No Restraining Order Blocking High School Turning Point USA Event, "Two Genders: One Truth"
From Doe v. Albemarle County School Bd., decided yesterday by Judge Jasmine Yoon (W.D. Va.):
This matter is before the court on Plaintiff J. Doe's motion for a temporary restraining order, and motion for a preliminary injunction, both filed on November 17, 2025. Doe requests that the court prohibit Defendant Albemarle County School Board ("the School Board") from allowing the Western Albemarle High School's Turning Point USA club ("TPUSA club") to host Victoria Cobb as a guest speaker for an event titled "Two Genders: One Truth." The event is scheduled for November 19, 2025, at 12:00 p.m. The court held a hearing on the motion for a temporary restraining order on November 18, 2025. The court finds that Doe has not made a clear showing that they are likely to succeed on the merits of the "deliberate indifference" element of the Title IX claim. Accordingly, the court will deny Doe's motions for a temporary restraining order and preliminary injunction….
While the court recognizes and sympathizes with Doe and their anxiety and distress surrounding the event, … Doe is not able to make a "clear showing that [they are] likely to succeed at trial" on their Title IX claim. A Title IX claim premised on sexual harassment, as here, requires the plaintiff to prove that: "(1) the educational institution receives federal funds; (2) the plaintiff was subjected to harassment based on her sex; (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity; and (4) there is a basis for imputing liability to the institution."
Under the fourth prong, liability may only be imputed to the institution in cases of deliberate indifference. Specifically, the Supreme Court has held that an institution may be liable for third-party harassment "only where [its] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Davis v. Monroe Cnty. Bd. of Educ. (1999). The Davis standard "sets the bar high for deliberate indifference."
Specifically, the Davis Court held that "it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims." Here, the School Board was exposed to both statutory and constitutional claims after Principal Jennifer Sublette announced her decision to move the original event from lunch to evening. The demand letter—sent from Michael B. Sylvester on behalf of the TPUSA club, sponsoring teacher, and Cobb—delineated these potential claims, which included First Amendment viewpoint discrimination and federal Equal Access Act violations. The letter asked the Board to correct the "unlawful act" "immediately."
No Pseudonymity in #TheyLied Defamation Case Over Sexual Assault Allegations
From Doe v. Doe, decided today by Judge F. Kay Behm (E.D. Mich.):
Plaintiff [John Doe] and Defendant [Jane Doe] are half-siblings and have known each other for over forty years. Plaintiff owns a law firm that operates nationwide, with a primary business address in Oakland County, Michigan. The relationship between Plaintiff and Defendant deteriorated when Defendant allegedly failed to perform on a contract to work for Plaintiff, and defaulted on a personal loan. A few days after Plaintiff terminated the contract for Defendant to work for Plaintiff, Defendant called Plaintiff's former spouse and told her that 30 years ago Plaintiff got Defendant drunk and sexually assaulted her. Plaintiff says this statement by Defendant is false and defamatory….
Generally, there is a presumption of open judicial proceedings in the federal courts; proceeding pseudonymously is the exception rather than the rule. Rule 10 of the Federal Rules of Civil Procedure requires that the complaint state the names of all parties. In order to circumvent this requirement, it must be shown that the need for anonymity substantially outweighs the presumption that parties' identities are public information and the risk of unfairness to the opposing parties….
[Plaintiff argues that] "[c]ourts generally allow a plaintiff to litigate under a pseudonym in cases containing allegations of sexual assault because they concern highly sensitive and personal subjects." And because Defendant is his half-sibling, the disclosure of either party would lead to the inevitable disclosure of the other.
Any 2024-25 Journal Articles on Law and Religion That You Particularly Liked?
If so, consider nominating them for this award, by Dec. 15; note that the award is limited to relatively junior faculty members:
The AALS Section on Law and Religion seeks nominations for the 2025 Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that has made an outstanding scholarly contribution to the field of law and religion. To be eligible, a paper must have been published between July 15, 2024, and November 15, 2025. The author must be a faculty member at an AALS Member School (with no more than 10 years' experience as a faculty member) or a full-time fellow or VAP at an AALS member school. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Self-nominations are accepted. Nominations should be sent to Rick Garnett (rgarnett@nd.edu), Chair of the Berman Prize Committee, by December 15, 2025.
"Inside the Markets Aggregating Political Reality"
Stanford Political Science Prof. Andy Hall, a colleague of mine at Hoover, has this very interesting post at his new Free Systems Substack. An excerpt:
I've studied political prediction markets for years, and their early history is full of clever designs and unrealized promise. But what's happening now is fundamentally different. The scale, the liquidity, and the attention these markets are attracting represent a break from efforts of the past.
My broader project is to understand how we preserve liberty in an increasingly algorithmic world. Prediction markets are a fascinating case where individuals, freely pursuing their own incentives and acting on their own information, can generate a public good for the digital era: a clearer shared picture of a highly complex political environment. At the same time, they can also create strange feedback loops that require careful governance. So they're well worth studying.
To learn more, I decided to see them up close. Two weeks ago, I flew to New York City for election night and joined a group of academics, technologists, and prediction-market traders to run a real-time experiment betting on actual elections.
Over the course of the night, I witnessed a technology that has incredible potential to make us smarter and more informed about politics and the world—and which raises profound questions about what politics looks like in a world of live probability feeds where truth is often contested and frictionless information overwhelms our narrow attention spans….
Three questions that will make or break prediction markets for politics
Democratic National Committee Not Liable for Field Organizer's Alleged "Grooming" of 16-Year-Old Campaign Volunteer, Which Led to Sex
From yesterday's decision by Judge Gerald Pappert (E.D. Pa.) in D.F. v. DNC Servs. Corp.:
D.F. was a [16-year-old] high school student in the summer of 2012 when she volunteered with Organizing for America, an arm of the Democratic National Committee, to work on the presidential campaign.
Killackey, a 38-year-old field organizer in the office, "allegedly 'groomed' D.F., leading to a sexual relationship between the two, which D.F. contends was unwanted and abusive":
He allegedly "took an immediate and unusual interest" in D.F. and openly flirted with her, referred to her as "precocious," and gave her gifts. D.F. alleges that Killackey was "groom[ing]" her "for sexual exploitation and abuse."
In June of 2012, D.F. asked staff at the Bristol office for a ride home from work, and Killackey agreed to give her one. D.F. alleges that Killackey flirted with her in his car and that she told him "she may have a crush on him." Killackey allegedly pulled the car over and, without D.F.'s consent, touched and spoke to her in a sexual manner. D.F. alleges that later that summer, Killackey "brought [her] to his apartment" and "proceeded to initiate sexual intercourse," after which a "sexually abusive relationship" continued throughout the summer and into the school year. The alleged sexual abuse happened in Killackey's car, at his apartment or in public parks. D.F. did not reveal the relationship or the abuse to the DNC or to any staff in the Bristol office.
D.F. sued the DNC for, among other things, negligent supervision, but the court threw that claim out:
Today in Supreme Court History: November 19, 1969
11/19/1969: Walz v. Tax Commission of City of New York argued.
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Eleventh Circuit Rejects Trump's Defamation Lawsuit Over CNN 2022 "Big Lie" Statement
President Trump "complained that, by using the phrase 'Big Lie' to describe his claims about the 2020 presidential election, CNN defamed him."
From Trump v. CNN, Inc., decided today (correctly, I think) by Judges Adalberto Jordan, Kevin Newsom, and Elizabeth Branch:
In 2022, Plaintiff-Appellant Donald J. Trump filed a defamation suit against Cable News Network, Inc. (CNN). He complained that, by using the phrase "Big Lie" to describe his claims about the 2020 presidential election, CNN defamed him….
To be clear, CNN has never explicitly claimed that Trump's "actions and statements were designed to be, and actually were, variations of those [that] Hitler used to suppress and destroy populations." But, according to Trump, this assertion is implied in CNN's use of the phrase "Big Lie." Further, he argues, the phrase "could reasonably be interpreted … by facets of the CNN audience as accusations that [Trump] is doing exactly what the historical record shows [that] Hitler did in his monstrous, genocidal crimes against humanity." And, the argument goes, these accusations are false statements of fact because Trump did not do exactly what Hitler did. Hitler engaged in a monstrous genocide; Trump "exercis[ed] a constitutional right to point out concerns with the integrity of elections."
Trump's argument is unpersuasive. First, although he concedes that CNN's use of the term "Big Lie" is, to some extent, ambiguous, he assumes that it is unambiguous enough to constitute a statement of fact. This assumption is untenable. Although we haven't squarely addressed the point, case law from other circuits is persuasive. In Buckley v. Littell (2d Cir. 1976), the Second Circuit held that, by using the terms "fascist," "fellow traveler," and "radical right" to describe William F. Buckley, Jr., the defendant was not publishing "statements of fact." Buckley, 539 F.2d at 893. Rather, the court ruled, the terms were "so debatable, loose and varying[ ] that they [we]re insusceptible to proof of truth or falsity." Similarly, in Ollman v. Evans (D.C. Cir. 1984), the D.C. Circuit held that when the defendant called the plaintiff "an outspoken proponent of political Marxism," his statement was "obviously unverifiable."
COVID Closure of Private Beach Access Constitutes a Taking
The Eleventh Circuit concludes "there is no COVID exception to the Takings Clause."
In April 2020, as the COVID outbreak was unfolding, Walton County, Florida, closed all beaches--public and private. Did this ordinance, as applied to private beaches, constitute a taking of private property under the Fifth Amendment? Yes it did, according to the U.S. Court of Appeals for the Eleventh Circuit in an opinion released yesterday.
Judge Lagoa wrote for the panel in Alford v. Walton County, joined by Judges Brasher and Carnes. Her opinion begins:
The Takings Clause of the Fifth Amendment provides that "private property" shall not "be taken for public use, without just compensation." U.S. Const. amend. V. Here, we consider whether a Walton County ordinance that proscribed all access to privately-owned beaches constitutes a "taking" under the Fifth Amendment. We hold that it does.
Despite the County's significant infringement on property rights, the district court granted summary judgment in favor of Walton County, noting that the ordinance was enacted during the COVID-19 pandemic. But there is no COVID exception to the Takings Clause. Instead, the government must respect constitutional rights during public emergencies, lest the tools of our security become the means of our undoing. "The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, '[p]roperty must be secured, or liberty cannot exist.'" Cedar Point Nursery v. Hassid, 594 U.S. 139, 147 (2021) (quoting Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851)).
Accordingly, after careful review, and with the benefit of oral argument, we affirm the district court's dismissal of the Landowners' prospective claims, but we reverse the district court's judgment on the Landowners' Takings Clause claim. Because we hold that the County effectuated a "taking" of the Landowners' property, we need not address the Landowners' claims under the Fourth and Fourteenth Amendments. On remand, the district court shall consider the amount of "just compensation" that the Landowners are entitled to. U.S. Const. amend. V.
Here is how Judge Lagoa summarizes the conclusion that taking occurred:
W. Va. High Court on Placing Children with Amish Foster Families
From Thursday's decision in In re M.B. (written by Chief Justice William Wooton):
The petitioner ("the petitioner") is the guardian ad litem of M.B., a two-year-old child who has been in the continuous care of the … foster parents … since shortly after his birth. The petitioner appeals from the February 29, 2024, order entered by the Circuit Court of Kanawha County, West Virginia, denying her motion to remove M.B. from the foster parents' home, arguing that because his placement in the home cannot lead to permanency, i.e., adoption, it would be in his best interest to be placed with another family that can offer him permanency.
The petitioner offers several bases for her contention that the foster placement here cannot lead to permanent placement. First, the petitioner contends that the foster parents, being members of an Old Order Amish community, would restrict M.B.'s formal education to grades one through eight and thus deprive him of his constitutional right to a thorough and efficient education. The petitioner also argues that remaining with Amish foster parents would not be in M.B.'s best interests because he would not have regular pediatric checkups, would not be vaccinated, would not be exposed to technology, and would not learn to drive. Finally, the petitioner suggests that M.B.'s adoption into the Amish community is problematic, at best, in that the community might not welcome a biracial child.
The respondent, the West Virginia Department of Human Services, and the foster parents, argue that to the contrary, it is in M.B.'s best interests to remain in what all parties acknowledge to be a loving home with the foster parents and his three siblings, who are part of the family unit…. [W]e affirm the circuit court's denial of the petitioner's motion to remove M.B. from the foster parents' home….
