The old legal saying, "bad facts make bad law," might be true in some cases. But that usually occurs when a court strays from its commitment to a neutral set of legal principles, often because a litigant or lawyer is particularly repulsive or persuasive. If a court sticks to those neutral principles, bad facts could make good law when the court demonstrates that the rule of law endures, even in the most difficult circumstances.
Jay Near is among the free speech anti-heroes profiled in our book. After arriving in Minneapolis from Iowa, in 1916 he started writing for Howard Guilford's Twin City Reporter, which boasted sensationalist and sometimes racist headlines, such as "White Slavery Trade: Well-Known Local Man Is Ruining Women and Living Off Their Earnings," and used terms like "yids" and "spades." The paper had a reputation for taking bribes from powerful local officials to write scandalous articles about their rivals. As journalist Fred Friendly would write in Minnesota Rag, a 1981 book about Near, Guilford and Near "practiced a brand of journalism that teetered on the edge of legality and often toppled over the limits of propriety."
Within a few years, Guilford and Near left the newspaper, and Near had moved first to California and then back to Minnesota. Their former newspaper was in the hands of a local crime syndicate that had worked out side deals with the city police, so Near convinced Guilford to start a rival newspaper, The Saturday Press, which would expose the corrupt crooks running The Twin City Reporter. Police Chief Frank Brunskill wanted to stop the distribution of this upstart paper even before the first edition came out.
Despite the threats, Guilford and Near published their first issue on September 24, 1927. The second page contained an editors' note that criticized the owner of their former newspaper:
Some excerpts from the long opinion in State ex rel. Oklahoma Bar Ass'n v. Barlean, decided Tuesday by the Oklahoma Supreme Court (opinion by Justice Kuehn); Barlean appears to have been a former candidate for the Oklahoma state legislature:
On January 5, 2023, Respondent pled guilty to two misdemeanor charges of Domestic Assault and Battery …. Both charges stemmed from violent incidents involving Respondent and a woman with whom he had a romantic relationship. On August 16, 2021, during an argument, Respondent strangled or choked the woman until she gave him her car keys. He was arrested, charged with a felony and bound over for trial. While out on bond, on December 2, 2022, during another fight Respondent pushed the woman down a flight of stairs, injuring her arm. He was arrested again and charged with a misdemeanor.
Under Respondent's plea agreement, the felony charge was reduced to a misdemeanor and Respondent pled guilty to both charges. He agreed to supervised probation with requirements including restitution, community service, completion of an intervention program, anger management classes, an alcohol and drug assessment and any recommended treatment. Respondent failed to complete these requirements. The State moved to accelerate his deferred sentence on September 30, 2024; on November 22, 2024 Respondent pled no contest to the motion to accelerate. Both counts were reduced to convictions and he was fined….
This Court's May 20, 2024 order of interim suspension directed Respondent to show cause why a final order of discipline should not be imposed. In his Answer, Respondent claimed that a June 2021 arrest, search of his house, and incarceration—unrelated to the charges at issue here—was illegal and led him down a "dark, self-destructive path" which culminated in his arrest for domestic violence by strangulation, the basis for the charge in CF-2021-3557. He attached a copy of a civil rights complaint he had filed in federal court as a result of the allegedly illegal search and incarceration.
In Mufarreh v. Google, Inc., decided Friday by the Illinois Appellate Court (Justice Raymond Mitchell, joined by Justices Sharon Oden-Johnson and Thaddeus Wilson), a 10-year-old hockey player and his parents sued an anonymous video poster, and sought to discover the poster's name:
[I]n a competitive youth hockey game[,] Mufarreh missed the final penalty shot, losing the game, and had a severe emotional response on the ice. Among other things, he screamed, threw his hockey stick, gloves, and helmet, and fell to the ground.
On November 2, 2023, YouTube user FunnyIllinoisHockey uploaded a compilation video of Mufarreh's emotional episode. The video, entitled "TI Tantrum," was set to the song "Tantrum" by Madeline The Person. The video was two minutes and forty-four seconds in length and tracked Mufarreh's movements around the ice, zooming in on him as he broke down.
According to the petition, between November 2023 and April 2024, every time petitioners sought to have the video taken down, it would reappear. The video spread widely throughout the small youth hockey community. Mufarreh alleged that he suffered from restless sleep and anxiety attacks and was humiliated, mocked, and socially ostracized. His parents also alleged that they endured sleepless nights, psychological distress, and a strain on their marriage.
Petitioners alleged that the video was repeatedly republished "purely to humiliate, isolate, and psychologically destroy" them. Petitioners also alleged that, based on information and belief, the anonymous account belonged to a 23-year-old coach from a rival hockey team who was using the video to recruit kids for his team and keep them away from Mufarreh's team.
Petitioners sought to compel respondents Google and YouTube to disclose the identity of the user who posted the video so they could sue the user for defamation, infringement on the right of publicity, and intentional infliction of emotional distress. Respondents informed the user of the litigation, and he appeared as John Doe, an interested party….
[T]he circuit court dismissed petitioners' claims for defamation and infringement on the right of publicity with prejudice. The circuit court also dismissed the [parents'] intentional infliction of emotional distress claims but allowed petitioners to proceed on the son's claim. Accordingly, the circuit court ordered respondents to turn over Doe's identity….
The court reversed, concluding that, as a matter of law, Doe's behavior as alleged by the plaintiffs didn't constitute intentional infliction of emotional distress:
Drug makers seek interim relief after the U.S. Court of Appeals for the Fifth Circuit blocks FDA rule allowing mifepristone prescriptions via telemedicine.
In 2023, the Supreme Court stayed a district court order undoing the Food and Drug Administration's approval of mifepristone (aka RU-486), a medication used (in combination with misoprostol) to terminate pregnancies. The U.S. Court of Appeals for the Fifth Circuit had partially stayed the district court's decision, but had left portions that would have restricted mifepristone's availability in place. One year later the case returned to the Supreme Court, only to be dismissed unanimously due to a lack of Article III standing in FDA v. Alliance for Hippocratic Medicine.
Litigation over the FDA's regulation f mifepristone has continued, and the drug's manufacturers are once again headed to One First Street seeking interim relief.
On Friday, in Louisiana v. FDA, a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit stayed the FDA's 2023 regulation allowing mifepristone to be prescribed without an in-person medical visit (i.e. through telemedicine). Concluding that Louisiana was strongly likely to prevail in its arguments that it had standing (unlike AHM) and that the FDA's decision to formally allow prescribing mifepristone via telemedicine was arbitrary and capricious, the Fifth Circuit entered a stay of the rule under Section 705 of the APA.
There are quite a few notable aspects to the Fifth Circuit's order. One is that the panel embraces Louisiana's quite-aggressive arguments for standing. Louisiana claims to be injured by the FDA's order because the availability of prescription-via-telemedicine makes it easier for individuals to circumvent Louisiana's abortion laws (a sovereign injury) and (the state claims) results in medical complications in Louisiana that the state has to pay for (a financial injury). Both arguments seem superficially plausible, but are nonetheless problematic under current law.
States can undoubtedly suffer sovereign injuries, such as when federal law preempts an otherwise lawful state law. But nothing of the sort is occurring here. Rather, Louisiana is claiming that because the FDA allows individuals to get mifepristone prescriptions through telemedicine, and because such prescriptions can be fulfilled by mail, the FDA's regulatory change makes it too easy to circumvent Louisiana's law. I get the argument, but it seems implausible under United States v. Texas(an 8-1 decision). The argument would also seem to open the door even wider to aggressive state standing claims. Under this theory, California would have standing to sue Texas or the federal government for the inadequate regulation of guns or sudafed because other people might take advantage of less stringent regulation to commit bad acts in California.
The financial injury looks like a more traditional Article III injury, but as pled it looks awfully speculative. Louisiana points to two cases in which women were treated for complications caused by mifepristone obtained from out-of-state and the state had to foot the bill. The financial impact is a cognizable injury, to be sure, but it's not clear to me Louisiana has explained how this is attributable to the FDA's actions. For standing it is not enough to identify the harm. The harm must be traceable to the specific action challenged. Here that means that Louisiana has to plausibly allege that these sorts of complication would not have occurred but for the FDA's 2023 change to the regulations governing mifepristone--that these women (and others in their position) would not have obtained mifepristone and suffered the resulting complications without the access to telemedicine the FDA authorized in 2023, and it's not clear to me Louisiana has plausibly made that claim.
The standing analysis is not the only problem with Louisiana v. FDA. The Fifth Circuit's order also heavily relied upon some of the since-vacated opinions in the AHM litigation. This is unfortunate, as the analysis in those opinions was wanting--and not just on standing. As I explained at the tail end of this post, portions of the Fifth Circuit's analysis misapplied the relevant administrative law standards--and I am quite confident the Supreme Court would have found as much had it not kicked the case on standing. As the prior decision was vacated for lack of jurisdiction, its conclusions were not binding on the Louisiana panel here, so it is particularly unfortunate that they were adopted without any additional analysis.
By entering a Section 705 stay of the FDA's 2023 regulation, the Fifth Circuit's decision blocks the prescription of mifepristone via telemedicine nationwide. Although I do not like nationwide injunctions, and am one of the few who rejects universal vacatur under the APA, I believe this case is consistent with the Supreme Court's Trump v. CASA decision, in that it is the sort of case in which universal relief may be necessary to redress the injuries alleged. If, as Louisiana claims, it is injured because the FDA's regulation facilitates the violation of Louisiana law through actions taken in other states, there is no way to adequately redress Louisiana's injuries without providing nationwide relief. So while I do not think a stay was warranted here, there is a logic to the stay's nationwide scope.
On Saturday, mifepristone's manufacturers--Danco Laboratories (name brand) and GenBioPrio (generic)--each filed applications with the Court seeking interim relief from the Fifth Circuit's order. Although each of these filings was produced under tremendous time pressure, together they make a strong case.
Will the justices act on these petitions? I suspect they might, in one way or another (and that many critics of the Supreme Court's "shadow docket" are hoping they will). Not only is the Fifth Circuit's stay quite significant in that it blocks a federal regulation nationwide, the order creates a circuit split with the Ninth Circuit on the threshold issue of standing.
One wrinkle is that we do not yet know what the federal government's position will be. Although the FDA opposed and is subject to the Fifth Circuit's order, and has yet to rescind or disavow the 2023 rule change, it has not (as of this writing) filed anything with the Court. Given the importance of irreparable harm to the government tends to play in interim docket decisions, the Solicitor General's decision whether to support the drug makers, or perhaps to support certiorari before judgment on the standing question, could be influential.
Stay tuned.
* * *
Here are links to my posts on the prior mifepristone litigation:
It grieves me to report that our coblogger, and my friend, Stewart Baker died suddenly a few days ago at age 78. Stewart always wrote and spoke modestly, but he (alongside former District Judge Paul Cassell and former U.S. Commission on Civil Rights member Gail Heriot) was the most accomplished of any of us: In addition to a long and successful career as a lawyer at Steptoe & Johnson, he also served as General Counsel of the National Security Agency (1992-94) and as Assistant Secretary for Policy in DHS (2005-09). At the start of his career, after graduating from UCLA School of Law in 1976, he clerked for First Circuit Judge Frank Coffin and then for Justice John Paul Stevens.
I invariably appreciated Stewart's incisive, knowledgeable, and thoughtful comments on many topics. His perspectives were usually quite conservative, at times more conservative than mine; but even when we disagreed, I always enjoyed reading his work and talking to him, and learned much from him. We also became good friends; I would often look him up when I visited D.C., and just had dinner with him two months ago.
It's shocking to know that he is gone. As the Russians say ("земля ему пухом"), and as the Romans said ("sit tibi terra levis")—may the Earth rest lightly on him.
I expect I've been in some, given the arsenals that I expect some of my friends maintain. Just ran across the term in a court opinion, as a typo for "marital home"—a quick Westlaw search finds over 600 opinions with the same typo.
I'm delighted to report that Profs. Jacob Mchangama (Vanderbilt) & Jeff Kosseff (Naval Academy, moving this year to Minnesota) will be guest-blogging Monday to Wednesday about their new book, The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom. Here's the publisher's summary:
An incisive examination of free speech's global decline and a framework for preserving expression in democratic societies.
The Future of Free Speech confronts a stark truth: the right to speak freely is under siege. Once celebrated as a cornerstone of democratic societies, free expression is now met with growing suspicion and retaliation across the globe. Jacob Mchangama and Jeff Kosseff present a panoramic view of how we arrived at this pivotal moment.
The authors examine a century in which speech rights expanded dramatically―including postwar democratic revolutions and the sweeping protections of the First Amendment―only to find those rights unraveling in the face of new political, technological, and cultural pressures. Today, liberal democracies are imposing speech controls, authoritarian regimes are cloaking censorship in democratic language, and digital platforms wield unprecedented power over global discourse. This book examines the backlash against free speech from all sides: governments criminalizing dissent in the name of national security; lawmakers and activists demanding tighter controls on misinformation, hate speech, and offensive content; and AI systems removing speech at a scale and speed that dwarfs historical forms of censorship. At the same time, faith in free speech itself is waning, even in the very societies that once championed it.
The Future of Free Speech argues for a reinvigorated, global commitment to open dialogue. Mchangama and Kosseff advocate nonpartisan, civic-minded solutions that resist both government overreach and corporate silencing. They offer a compelling case for how free speech can meet modern challenges without abandoning its foundational role in sustaining democracy, human rights, and shared understanding.
Each fall, I teach a seminar called Recent Books on the Constitution. I initially designed this course when I visited Georgetown in 2005. At that time, because I tend to read what relates directly to my current projects, I felt that I was not keeping up with the literature. By assigning recent books on the Constitution to read as part of my teaching, I would actually read them. This has really worked for me. I have now read a lot of books on the Constitution. The complete list of all the books I have assigned is below.
Since 2005, I have assigned 105 books by 96 authors, with James Fleming, Sandy Levinson, Gerard Magliocca, Eric Segall, Dan Farber, Jonathan Gienapp, Philip Hamburger, Kim Roosevelt, and David Bernstein each making more than one appearance. Over the years, I assigned four books in manuscript before publication. In addition to my manuscript of the book I am now writing on libertarianism, here are the five "recent books on the Constitution" I am assigning for fall of 2026:
I select books I think I ought to read–either because of the subject or the author. I then hold off reading them myself so I can read them at the same time as the students. This enables me to react to the books along with them, and for me to remember the nuances of the books for class discussion.
The seminar format is to read 6 books, taking 2 weeks on each book, with the author coming to the class during the second week to discuss the book. The first book is now always one of mine to use as a trial run and to give the students an idea of where I am coming from when we discuss the other books. When books are longer than 250 pages, I ask the author to tell me which 250 pages I should assign. If I assign much more than 125 pages per week, I fear the students won't read them, or won't read them carefully enough. To help assure that they do, students submit one-page summaries of each half of the book (graded pass-fail). On the day before the author's visit, they submit a 5500 character critique of the book, which I send to the author electronically the day before class. (They all read them.) When the class ends, there is no exam or paper for the students to write or for me to grade. We are done!
Students consistently tell me that the course is extremely enriching, and helps them develop their critical skills. They are never expected to read whole books and rarely asked to concisely formulate their own objections to scholarship. It is also empowering for them to see how well they are able to find the holes in a professor's book-length presentation. I find that, collectively, the students are able to nail the weaknesses of every book (except mine, of course).
[Note to law professors: I have a budget to pay for the authors' travel expenses. But now that we all have access to Zoom teaching, this seminar format can be replicated anywhere at zero cost. Wouldn't it be great if there were a dozen or more such book seminars around the country? Try it. I promise you will love it.]
If you click on READ MORE you will see why teaching this class has been enormously rewarding for me. Offer my heartfelt thanks to all these authors for trekking to DC to discuss their books with my students.
John Inazu, Liberty's Refuge: The Forgotten Freedom of Assembly (Yale 2012)
Justice Antonin Scalia, Reading Law: The Interpretation of Legal Texts (West, 2012)
Abner Greene, Against Obligation (Harvard 2012)
Sandy Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford 2012)
2012 (Spring)
Michael J. Gerhardt, The Power of Precedent (Oxford 2008)
Robert Bennett & Lawrence Solum, Constitutional Originalism (Cornell 2011)
Gary L McDowell, The Language of Law & the Foundations of American Constitutionalism (Cambridge 2010)
Eric Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges (Praeger 2012)
Michael Greve, The Upside-Down Constitution (Harvard 2012)
Alexander Tsesis, The Thirteenth Amendment and American Freedom (NYU 2004)
2011:
H. Jefferson Powell, Constitutional Conscience (Chicago, 2008)
Jeremy A Rabkin, Law Without Nations? (Princeton, 2005)
Christian G. Fritz, American Sovereigns (Cambridge, 2007)
Timothy Sandefur, The Right to Earn a Living (Cato Institute, 2010)
Sonu Bedi, Rejecting Rights (Cambridge, 2009)
Alison LaCroix, The Ideological Origins of American Federalism (Harvard, 2010)
2010:
David Bernstein, Rehabilitating Lochner (Chicago 2011) (assigned ms)
Brian Tamanaha, The Formalist-Realist Divide: The Role of Politics in Judging (Princeton, 2009)
Earl Maltz, Slavery and the Supreme Court, 1825-1861 (Kansas, 2009)
Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge, 2004)
George Thomas,The Madisonian Constitution (Johns Hopkins, 2008)
David Strauss, The Living Constitution (Oxford, 2010)
2007:
Alex Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard, 2002)
Dan Farber, Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have (Perseus, 2007)
Jim Fleming, Securing Constitutional Democracy: The Case of Autonomy (Chicago, 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge, 2006)
Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007)
2006:
Philip Hamburger, Separation of Church and State (Harvard, 2002)
Kermit Roosevelt, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale, 2006)
Elizabeth Price Foley, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Yale, 2006)
John Yoo, The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11 (Chicago, 2005)
Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (Oxford, 2006)
2005 (Taught when I was a visitor at Georgetown. Only Mark Tushnet, who was then still on the Georgetown faculty, appeared. His class visit gave me the idea to invite all the authors in the future):
Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, 2000)
Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard, 2001)
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford, 2004)
Daniel A. Farber, Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (Chicago, 2004)
James R. Stoner, Common Law Liberty: Rethinking American Constitutionalism (Kansas, 2003)
From Remus Enterprises 1, LLC v. Breece, decided Thursday by the D.C. Court of Appeals (Judge Shanker, joined by Judges Easterly and Ruiz):
Punctuation matters. At the heart of this case is the placement of a comma. Appellant Remus Enterprises 1, LLC ("Remus 2023") sued appellee Quinn Breece in Superior Court asserting tort claims arising out of Remus 2023's alleged ownership of, and desire to sell, a parcel of property located at 3308 16th Street, NE, in Washington, D.C. But a consent judgment in another case established that a different entity with a name containing all the same words and letters but a differently placed comma—Remus Enterprises, 1 LLC ("Remus 2018")—was the real owner of the property. Because Remus 2023 does not have standing to sue based on a different entity's property interest, we conclude that the trial court lacked subject-matter jurisdiction over the case, and we affirm the trial court's dismissal of Remus 2023's complaint, although on grounds different from those relied on by the trial court….
5/3/1802: Washington D.C. incorporated as the capital of the United States. Article I, Section 8 empowers Congress to "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."
On April 24-26, I attended LibertyCon Europe 2026, the major annual gathering of European libertarian students and academics (held this year in Madrid). I was invited to give two talks, and therefore came to this event for the first time since 2014. I spoke to numerous students, academics, and activists who attended the conference and got a better sense of where European libertarians (or "classical liberals," as some prefer to call themselves) stand at this crucial moment in history. It was interesting to observe similarities and differences with their American counterparts.
Not surprisingly, there is a large overlap between the two groups' views and priorities. A high proportion of what I saw and heard at LibertyCon Europe differed little from what I would expect to see at a comparable US event. For example, libertarians on both sides of the Atlantic are deeply concerned about excessive government spending and regulation, growing efforts to impose restrictions on access to various websites (often under the pretext of protecting children), protectionist restrictions on international trade, and more. American libertarians have greatly influenced their European counterparts, and vice versa. As the great Austrian libertarian economist F.A. Hayek put it, "[t]he growth of ideas is an international process."
There are, however, several noteworthy differences. First and foremost, it is notable that European libertarians have an almost unanimously negative view of Donald Trump and his administration. Many, probably most, American libertarians are similarly negative. But there is a significant faction that is "anti-anti Trump" (holding that Trump is flawed, but still preferable to his opponents, or at least no worse than them), and a smaller but vocal group that is actively pro-Trump.
Among European libertarians these latter two camps are almost completely absent. At the conference, several European participants asked me whether I thought Trump was the worst-ever US president. I answered that he is working hard to achieve that "distinction," but has not so far surpassed Woodrow Wilson and Andrew Johnson, and perhaps 2-3 others. Regardless of the answer, the ubiquity of the question was notable.
Perhaps this is not entirely surprising. Trump promotes an American version of nationalist ideology. For obvious reasons, non-Americans are inherently less likely to be sympathetic to American nationalism. But the European libertarians I met also have very negative views of the right-wing nationalist parties in their own countries, such as the AfD in Germany, the National Rally in France (formerly the National Front), and others. Hungarians at the event were thrilled by the recent crushing electoral defeat of authoritarian nationalist Prime Minister Viktor Orban. Others there were happy to see Orban go, as well. Orban's regime exemplified many of the evils of nationalism, and was beloved by "national conservatives" and "postliberals" in the US, and around Europe.
On average, European libertarians seem much more attuned to the dangers of nationalism than American ones are. One of the talks I gave at the conference was on how nationalism is now the greatest threat to economic liberty in most of the world, taking the role previously held by socialism. Afterwards, almost everyone who spoke to me about it expressed substantial agreement (with the exception of one Scandinavian academic). The same presentation would have attracted considerably greater dissent among US libertarians.
I don't fully understand the reasons for this difference between US and European libertarians. But one cause may be Europe's awful history with nationalism, which makes libertarians there more sensitive to its perils. Those dangers are indeed very great, as Alex Nowrasteh and I explained in our 2024 article, "The Case Against Nationalism."
Another striking European-American difference I noted at the conference is that European libertarians overwhelmingly support Ukraine against Russia, and generally also support Western aid to Ukraine. By contrast, most (though by no means all) American libertarians oppose such assistance on quasi-isolationist grounds. Some also endorse foreign policy "realism," which holds there is little or no difference between the foreign policies of difference regime types (e.g. - that liberal democracies' foreign policies are little different from those of dictatorships). Such views are rare among European libertarians. One European participant at the conference argued to me that American libertarians' isolationist approach to security policy is not rooted in any general element of libertarian thought, but is rather a product of the America's unique geography - separated from other powerful nations by two oceans.
Some of the European-American divergence over Ukraine is explicable by the particular history of individual nations. Many participants in the LibertyCon Europe conference come from Eastern European countries like Poland, Hungary, and the Czech Republic, which have a history of being occupied and oppressed by the Soviet Union, the Russian Empire, or both. That naturally contributes to their hostility to Russian aggression today. But it is notable that most Western Europeans at the conference held views on this issue that differed little from their eastern counterparts.
A third key difference is a divergence regarding constitutional questions. Many American libertarians (myself included) devote extensive time and effort to constitutional questions, and several American libertarian groups have done much to advance their causes through constitutional litigation; the Institute for Justice and the Pacific Legal Foundation are notable examples. Such possibilities seem largely absent from the radar screen of European libertarians.
Indeed, almost the only presentation at the conference that focused extensively on constitutional litigation was my own talk on the US Supreme Court's recent ruling striking down Trump's tariffs in a case I helped litigate. As I noted in the final portion of my talk, I think European libertarians are overlooking potentially valuable opportunities. Both the European Convention on Human Rights and the national constitutions of multiple individual countries contain potentially useful provisions protecting property rights and economic liberties, that libertarians could potentially make better use of. They could also potentially make use of federalism and separation of powers elements of some of the relevant constitutions. Various economic interest groups have sometimes made effective use of pro-market strategic litigation in Europe. But not so libertarians. Rasheed Griffith, A European-based Mercatus Center scholar, made similar points in his talk on a panel on economic regulation, also urging Europeans to make greater use of constitutional litigation.
Obviously, Europeans shouldn't necessarily use the same types of arguments as those deployed in US litigation. But they should not neglect opportunities to use constitutional litigation to promote liberty. Litigation usually cannot succeed entirely on its own. Successful reform movements generally combine it with political action. But it is often a valuable tool, nonetheless.While we would do well to learn from the Europeans on the first two points of contrast covered here, the reverse is true on this one.
The above is far from a complete account of what I saw and heard at the conference, nor is it a complete analysis of similarities and differences between American and European libertarians. But the three points of contrast I cover seemed particularly notable.
The last time I spoke at a LibertyCon Europe conference - back in 2014 - I saw a talk by the great Swedish libertarian Johan Norberg (now a colleague of mine at the Cato Institute). He said that Europe is both the greatest continent and the worst one. It's the greatest because it gave us Enlightenment liberalism, the set of ideas that brought unparalleled freedom and prosperity to so much of the world, including America. It's the worst because it also gave us socialism and fascism, the causes of unparalleled oppression, poverty, and mass murder. Fascism, of course, is just a particularly egregious variant of nationalism, an ideology that also originated in Europe.
Hopefully, the good that Europe gave the world can ultimately overcome the evil. Libertarians on both sides of the Atlantic should work to help make that happen.
UPDATE: Johan Norberg wrote to me in response to this post, and authorized me to reprint this part of his insightful message. Here it is:
I share your assessment of the difference and I think you point to the two most likely explanations in your article:
1) we live close to Russia and know from experience that we have to band together to safeguard our freedom and independence.
2) we also know from recent history that nationalism has a tendency to unleash madness within ourselves and it repeatedly results in war and destruction, so it's not something to play games with. In a more nationalistic and aggressive era, we fear what others might become, but also what WE might become. "You don't want to make the Hulk angry."
Younger readers may not get the Hulk reference. See here.
UPDATE: #2 Rasheed Griffith also wrote me in response to this post, and also authorized me to reprint part of it:
I completely agree with your observations on the differences between the two groups.
On this point of yours: "Both the European Convention on Human Rights and the national constitutions of multiple individual countries contain potentially useful provisions protecting property rights and economic liberties, that libertarians could potentially make better use of." The combined Lisbon Treaty of the EU offers an even stronger legal basis for pro-freedom litigation. The core economic freedoms are explicitly enumerated: Articles 26 and 28–66 TFEU establish: Free movement of goods, of establishment, to provide services, and of capital. And there is extensive case law at the CJEU [Court of Justice of the European Union] that has affirmed these rights against national restrictions. Some I discussed here. Unlike the US, the EU does have an economic (pro-libertarian) constitution. There are even articles preventing certain kinds of government subsidies (State Aid). And all of these can be directly litigated in any Member State.
I should have referenced the Lisbon Treaty in my original post. It is, I think, far from clear whether European constitutional structures are, overall, more libertarian (in the sense of protecting economic liberty) than the US Constitution. But European libertarians and other free market advocates should make greater use of strategic litigation, regardless.
The Court has in the past upheld restrictions on political activity (such as candidate speeches) on military bases, see Greer v. Spock (1976), and lower courts have upheld restrictions on speech by outsiders on various kinds of government property, including military bases. But when may the government restrict speech by people who actually live on government property—military bases or otherwise—and who aren't active duty military or even other government employees?
The issue has come up fairly rarely, but at least some cases have recognized that residents of various kinds of public housing retain broad constitutional rights on that property. Resident Action Council v. Seattle Housing Authority (Wash. 2008) is one example; that case struck down a "[public] housing regulation prohibiting the posting of signs on the exterior of resident apartment doors" by the residents. See also, e.g., Walker v. Georgetown Housing Authority (Mass. 1997). But in Friday's Fuselier v. RisCassi, Chief Judge Halil Suleyman Ozerden (S.D. Miss.) upheld a limit on wearing political clothing in public spaces at a military retirement home. An excerpt:
Plaintiff … is a Vietnam War veteran and long-term resident of the Armed Forces Retirement Home—Gulfport, a gated, guarded, all-inclusive residential retirement home located on the shores of the Gulf of America …. [T]he "administration of the Retirement Home" is "under the control and administration of the Secretary of Defense" …
The AFRH-G … prescribes certain rules for its residents, such as requiring them to complete a "leave form" if they intend to leave campus for more than twenty-four hours, and it prohibits drinking alcohol (except in designated areas) and possessing a firearm on campus. It also prohibits conduct and dress—in common areas—that it deems "inappropriate." One class of apparel deemed "inappropriate" is "political" apparel:
Conduct: Residents are expected to conduct themselves in a manner that will promote harmony, safety, security and consideration of others. Negative behavior, such as using racial slurs, engaging in confrontations, swearing, and damaging the property of other Residents will not be tolerated … Signs and apparel of racial, sexual, political, or ethnic slogans are not permitted ….
Dress: In public spaces, Residents are expected to wear clothing that is clean, neat, serviceable, and conducive to adult living. Apparel with racial, sexual, political, or ethnic slogans is considered inappropriate dress at the AFRH-G ….
{[W]eekly bulletins issued in June and July 2023 limited the political apparel restriction to "current" political candidates.}
As a "passionate supporter of President [Donald] Trump and other Republican political candidates and officials," Fuselier wants to show his support by donning apparel and displaying signs with political slogans in campus common areas. For example, he wishes to wear apparel with the slogans "Trump 2024 Save America Again!" and "Let's Go Brandon," and adorn his orthopedic walker with slogans like "Vote Republican Vote MAGA" and "Tate Reeves for Governor." …
[After AFRH refused to let him wear and display political slogans, in] late June 2023, Fuselier "affixed two printed signs to his orthopedic walker while in the common areas" of the retirement home. One sign stated "2024 – Make Us Great Again" and the other stated "Let's Go To Brandon MS." According to Plaintiff, the Resident Officer "ordered him to remove the signs" and informed him that refusing to comply could result in an "administrative hearing," and possible eviction.
The court concluded that the government property was a "limited public forum" exists "where a government has reserved a forum for certain groups or for the discussion of certain topics." On such property, restrictions are constitutional if they're viewpoint-neutral and reasonable, and the court said these restrictions qualified. Some excerpts:
To be fair, the lawyer was apparently one of the lawyers on what would commonly be called a low eight-figure settlement ($11M), and the lawyer's site mentions a couple of similarly sized verdicts, one later on the same page and one or another page. It thus seems more like a funny glitch than a telling error. On the other hand, the lawyer has recently been sanctioned for AI hallucinations in a filing written by an associate but also signed by the lawyer.
Tricia S. Lindsay, attorney for plaintiff Sai Malena Jimenez-Fogarty, responded to two motions to dismiss by filing a pair of memoranda of law that cited to numerous nonexistent cases. In response, the Court ordered Lindsay to show cause why she should not be sanctioned for her misleading filings. Upon consideration of Lindsay's response to these orders, we find that she should be sanctioned in the amount of $2,500.00 ….
[T]wo briefs were signed by Lindsay, and each contained a number of fabricated citations. When we say "fabricated," we do not mean citations that arguably contain typographical errors—for example, Lindsay's citations to cases that exist and support the propositions for which they were cited but are not located in the volume or at the page of the reporter (or database identifier) given. Similarly, we exclude any otherwise correct citations that give the wrong case name. We also exclude those instances where the cited case covers the same topic as the proposition for which it is cited but where the case's holding is completely mischaracterized, although such a citation is itself grossly misleading and perhaps deserving of sanctions.
Instead, we consider only citations to cases that cannot be located at all by name—or that were not located where Lindsay said they were and have nothing to do with the propositions for which they were cited—thus showing that the citations were completely made up. The following are descriptions of some of the fabricated citations [listing seven items -EV] ….
Lindsay's response to being alerted to the fabricated citations did not follow the typical pattern in cases where courts have called upon attorneys to explain the presence of fabricated citations in their papers. The Court's first OSC [Order to Show Cause] specifically ordered Lindsay to provide "a complete and detailed description of the process of the drafting of the two memoranda of law." While most attorneys provide such an explanation, which often involves an admission of reliance on artificial intelligence ("AI") platforms, Lindsay's brief sworn statement in response offers only airy generalities and conclusory statements. Her response contains no coherent explanation for how the two memoranda of law came to contain the fabricated citations. The most basic questions—most obviously: what was the source of the fabricated citations?—are never answered.
