The Volokh Conspiracy

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

From Judge Samantha D. Elliott (D.N.H.) yesterday in Doe v. Univ. Sys. of N.H.:

Pro se plaintiff John Doe brings suit against the University System of New Hampshire Board of Trustees and several individuals, identified and unidentified, arising out of a "pattern of policy retaliations contrary to contractual obligations" beginning in 2023. The plaintiff alleges few specific facts in what he describes as his "emergency skeleton complaint" that was "executed under acute medical distress to freeze vital deadlines," but he invokes the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. He also asserts that the court has "supplemental jurisdiction over all related state law breach of contract and equitable claims." …

Viewed generously, the plaintiff's motion for a preliminary injunction asks the court to do the following to accommodate certain alleged disabilities: 1) preserve all of his claims for the purposes of the applicable statutes of limitations; 2) waive all deadlines established by the Federal Rules of Civil Procedure and the court's Local Rules; 3) permit the plaintiff to file documents expanding on his claims and seeking additional court intervention (protective orders, comprehensive courtroom and mediation accommodations, the appointment of a special master to oversee discovery, etc.) on a rolling basis; 4) defer issuing summonses to the defendants; and 5) maintain his pleadings under seal.

The court notes at the outset that neither Title II of the Americans with Disabilities Act nor Section 504 of the Rehabilitation Act applies to federal courts. Nonetheless, the court is committed to maintaining access to the court for all litigants and endeavors to grant reasonable requests for accommodations. Any accommodations that fundamentally change court proceedings, could alter the court's substantive decisions, or affect any other parties' due process rights, however, are not reasonable….

Disability Law

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From Third Circuit Judge Stephanos Bibas, joined by Judges Cindy Chung and Thomas Ambro, in yesterday's Beatty v. Gardner:

After arresting a suspect, officers may search his person for weapons or evidence without a warrant or any further justification. But they may go only so far. To search his home, car, or cellphone, they ordinarily need to get a warrant backed by probable cause.

Today, we recognize another such limit on searches incident to arrest: strip searches. Outside of jails or prisons, officers need a search warrant (or exigent circumstances) supported by probable cause to believe that a strip search will reveal weapons, contraband, or evidence under the arrestee's clothes. Thus, the officers here violated the Fourth Amendment by strip-searching an arrestee without a warrant or exigent circumstances. But because that limit was not clearly established at the time, qualified immunity shields them from liability….

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Can revealing a plot twist get you sued? Inspired by the controversy surrounding HBO's Lanterns, Jane and I explore the tension between copyright protection and free speech. From Gerald Ford's memoirs to 2 Live Crew's "Pretty Woman" parody, they examine how courts distinguish protected expression from facts and ideas—and when fair use permits borrowing from someone else's work. Along the way, they consider why describing an ending differs from posting a clip, how leaks of unpublished material complicate the analysis, and when a spoiler might cross the line from bad manners to legal liability.

Also check out our past episodes:

Free Speech Copyright

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9/17/1787: The Constitution is signed.

Happy Constitution Day!

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After the largest massacre of Jews since the Holocaust, thousands of college students marched through the streets chanting, "From the river to the sea, Palestine will be free." Most of them likely had no clue which river and sea were at issue. And they probably also gave zero thought to what it would mean for Palestine to be "free." The college students likely never heard the far more accurate version of the chant in Arabic, which translates to "From the river to the sea, Palestine will be Arab." In short, the only Jewish state in the world would cease to exist, and all Jews would be expelled.

A recent poll relates sentiments among Palestinians towards a Jewish state:

West Bank Palestinians are split on whether Israel has a right to exist, and whether its existence could be brought to an end at some point, according to a survey conducted by Tel Aviv University's Institute for National Security Studies.

The poll finds that 41% of respondents say Israel has a right to exist, compared with 46% who say it does not. In a separate question, 42% say they believe it would be possible to bring about the end of Israel's existence, either in the near or distant future. Conversely, 32% say ending Israel's existence is impossible. . . .

No proposed political framework for resolving the conflict receives majority support. Twenty-seven percent favor a two-state solution; 22% support a single binational state with full equal rights; 26% favor a Palestinian state "from the river to the sea" — encompassing all of what they consider "historic Palestine" — with no permanent Jewish presence; and 17% favor a Palestinian state throughout the entire territory in which Jews would be permitted to live as citizens or residents.

I don't pretend to know how to resolve the situation, but Americans who seek to opine on the subject should at least know how Palestinians would respond if their land was "free."

For reasons explained in my draft article, The Fourth Amendment After Chatrie, there is good reason to believe that the Supreme Court's June ruling in Chatrie v. United States will trigger a rethinking of how the Fourth Amendment applies to automated license plate reader systems such as those provided by Flock Safety. There was an oral argument in the Eleventh Circuit on this question on July 29 that you can listen to here, but there has been no ruling yet on that from the Eleventh Circuit. Last week, however, the United States District Court for the Central District of California became the first court I'm aware of to weigh in on whether the use of Flock cameras is a Fourth Amendment search after Chatrie.

The new ruling, United States v. Riley, concludes that use of Flock cameras was not a search. In the case, police investigating two kidnappings queried the Flock cameras of two California cities, obtaining four photographs each of the whereabouts of the defendant's car. According to the court, this was not enough of a privacy invasion to constitute a Fourth Amendment search:

The ALPR database searches used during the Culver City and Carson investigations are thus clearly distinguishable from and less extensive than the "near perfect surveillance" achievable through the historical CSLI at issue in Carpenter and the Google Location History data at issue in Chatrie. The ALPR data in this case could not create "an all-encompassing record" of Defendant's whereabouts. Carpenter, 585 U.S. at 311. And although some of Defendant's path in the Dodge Charge and Chevrolet Malibu may be inferred, there is no indication in the record that law enforcement could recreate the complete paths that Defendant traveled in those cars, even in combination with information from other sources, such that officers could create a "detailed log of [Defendant's] movements" from the data at issue here. Id. at 312. Nor did this surveillance provide the "intimate window" into Defendant's personal life that concerned the Supreme Court in Carpenter. Id. at 311. That is to say, the ALPR data did not reveal defendants "familial, political, professional, religious, and sexual associations." Id. Furthermore, the record does not show that the ALPR data here allows police to "reconstruct 'retrospective[ly],' and with no real effort, [Defendant's] comings and goings in any area. Chatrie, 146 S. Ct. at 2208 (alteration in original) (quoting Carpenter, 585 U.S. at 312).

For these reasons, the record here does not reveal a privacy threat analogous to the issues addressed in Carpenter and Chatrie. And it does not present "dragnet type law enforcement practices" constituting a Fourth Amendment search. United States v. Knotts, 460 U.S. 276, 284 (1983).

This is just a trial court decision, of course, and I assume it will be appealed to the court of appeals. Other courts are considering the same question, and we don't know how they will rule. But given the public interest in the issue, I thought I would flag the new opinion. As always, stay tuned.

An American flag breaks with a Canadian flag — Illustration: Midjourney

On Wednesday, September 23, from 12 to 1:30 PM, eastern time, the Montreal Economic Institute will be hosting an online webinar on legal challenges to the Trump tariffs against Canada, entitled "Trump Tariffs: How the American Court System Can Help Restore Free Trade in North America." I will be one of the speakers, along with Marc Wheat (general counsel of Advancing American Freedom), and Andrew Hale (economic and trade policy expert at AAF).

Additional information and free registration are available here.

We will, I expect, cover various illegal imposed tariffs against Canada, including the Section 301 tariffs (which I wrote about here), and the Section 338 tariffs (see here and here). I will also discuss how best to avoid such harmful and tariff actions in the future.

An excerpt from Judge Thomas Varlan's long opinion today in Ross v. Lambert (E.D. Tenn.):

Plaintiff alleges that he is an accomplished track and field athlete who has held numerous collegiate coaching positions over the past ten years, including Head Coach and Director of Track and Field at the University of Tennessee ("UT") beginning in 2022…. [I]n May 2023, plaintiff advised defendant [an employee of the program] that he was being terminated from his position at UT. Plaintiff claims that he gave defendant the option to voluntarily resign in lieu of being fired for cause, which defendant accepted.

Defendant subsequently filed an EEOC complaint against plaintiff and UT, plaintiff asserts, but this case was closed without a finding of probable cause against either plaintiff or UT. Then, on or about May 30, 2024, defendant sent a demand letter to UT's Office of General Counsel, threatening to sue UT and plaintiff for "wrongful termination and discrimination" if he did not receive a $150,000 payment from UT.

Plaintiff alleges that, within the demand letter, defendant made a series of "patently false and inflammatory allegations" against plaintiff, which included statements claiming that plaintiff and plaintiff's son were involved in "doping." Defendant also warned in his demand letter that he would go to the media if UT did not settle. In response, UT rejected defendant's demand, citing to his "baseless" and "highly offensive" attack on plaintiff's reputation, and advised defendant that it was unwilling to engage further with defendant on the matter.

Free Speech Libel

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An excerpt from Judge Benjamin Settle's longish opinion Monday in Bromm v. Lewis County (W.D. Wash.):

Plaintiff Paul Bromm was employed as a part-time Deputy Coroner with Lewis County. After conservative activist and media personality Charlie Kirk was shot in September 2025, Bromm shared memes and made other posts on his Facebook that appeared to make light of the killing, even suggesting it was deserved.

Bromm was placed on administrative leave and then terminated for his posts. Bromm sued Lewis County, the City of Centralia, and five individual defendants, asserting 42 U.S.C. § 1983 claims premised on alleged violations of his First Amendment right to free speech, and that defendant [County] Commissioner Sean Swope "doxed" him in violation of RCW 4.24.792.

The court dismissed Bromm's First Amendment claim against the individual defendants, finding that it was barred by prosecutorial immunity (as to a prosecutor) and qualified immunity (as to the others). The government defendants didn't move for summary judgment. Here's the underlying post, followed by the meat of the qualified immunity analysis:

Free Speech

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An excerpt from Judge Benjamin Settle's longish opinion Monday in Bromm v. Lewis County (W.D. Wash.):

Plaintiff Paul Bromm was employed as a part-time Deputy Coroner with Lewis County. After conservative activist and media personality Charlie Kirk was shot in September 2025, Bromm shared memes and made other posts on his Facebook that appeared to make light of the killing, even suggesting it was deserved.

Bromm was placed on administrative leave and then terminated for his posts. Bromm sued Lewis County, the City of Centralia, and five individual defendants, asserting 42 U.S.C. § 1983 claims premised on alleged violations of his First Amendment right to free speech, and that defendant [County] Commissioner Sean Swope "doxed" him in violation of RCW 4.24.792.

Here's the court's analysis as to doxing (I discuss Bromm's First Amendment claim in a separate post):

Free Speech Doxing

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Steven Calabresi writes, here on the VC, that our President has been "bold, brave, and right," and "done all the right things," in pushing ahead attacking Iran. "We should all be very grateful," he writes, "for President Trump's boldness, bravery, and steadfastness with respect to this war."

Respectfully, I disagree. Trump's Iran policy is, I suppose, "bold." A nuclear attack on Canada would also be "bold," as would aiding and abetting an attack on the US Capitol to prevent election certification, or draining the Rio Grande to make it easier to spot unlawful entrants. Boldness in pursuit of flawed policies and unlawful ends and downright stupidity -- all of which are on display here in the handling of this war -- is not a virtue.

Prof. Calabresi spends most of his time in his essay showing that "Iran is our mortal enemy — that it is a "revolutionary theocracy that wants to pave the way to an entirely Shiite Islamic World," that it is "committed to regime change in the United States," that it "wants to destroy the United States and all that it stands for." And that the possibility that Iran can acquire nuclear weapons is both "appreciable" and "unacceptable."

I happen to agree with him on all that. But that's not the question before us, which is: Given all that - that a nuclear-armed Iran poses an unacceptable risk to our country and to the world - what should we do about it? How do we reach the goal of a non-nuclear Iran? Have our President's actions brought us closer to the goal?

Calabresi begins his defense of Trump's decisions in paragraph 9: Read More

In the 1930s, there were Nazis in America. In the summer of 1934, residents of Griggstown, New Jersey watched with alarm as tents emblazoned with swastikas were erected on the banks of the Delaware and Raritan Canal. Two hundred boys ranging in age from eight to sixteen, dressed in khaki shirts, black rubber-soled shoes, and brown stockings rolled below the knees, conducted military-style drills before swastika flags that were four feet long. These exercises were part of a youth summer camp called Wille und Macht (Will and Might), sponsored by the Friends of the New Germany, the largest Nazi organization in America, with more than ten thousand members.

Camp Wille und Macht opened shortly after the Friends of the New Germany held a massive rally attended by twenty thousand people in New York's Madison Square Garden. Nazi storm troopers stood at attention atop a red-draped platform. On each side of the stage were black columns decorated with the German eagle bearing the swastika. The Nazis wore swastika armbands and uniforms consisting of military trousers, Sam Browne belts, high boots, and white shirts. Seven hundred policemen patrolled the Garden, attempting to rein in rowdy counterprotesters including the Young Communists' League and the "Anti-Nazi Minute Men."

The presence of Nazis in the United States led to widespread calls for hate speech laws. It set off an intense dialogue around the question: Does the First Amendment provide freedom of speech to those who would, if in power, destroy freedom?

Samantha Barbas, Professor of Law and Aliber Family Chair, specializes in legal history, First Amendment, and media law. She is the author of eight books, including Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (California, 2023), which was listed as one of the New Yorker's Best Books of 2023.

Her other books include Hate Speech: The Legal and Cultural History of an American Dilemma (California, 2026), The Rise and Fall of Morris Ernst: Free Speech Renegade (Chicago, 2021), Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom (Stanford, 2017), and Laws of Image: Privacy and Publicity in America (Stanford, 2015). She is quoted regularly in national publications, and her books have been featured in The New York Times, New York Review of Books, and Wall Street Journal, among others.

Free Speech Hate Speech

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I'm delighted to welcome Prof. Samantha Barbas (Iowa), who will be guest-blogging this week and next about her new book. From the publisher:

The United States has no hate speech laws; hate speech is generally considered to be free speech under the First Amendment. In this crisp guided history, acclaimed legal historian Samantha Barbas chronicles the country's legal and cultural battles over the regulation of hate speech in the last hundred years. Charting the historical context for current debates, she ultimately argues that, however emotionally appealing they may seem, hate speech laws undermine civil rights and democracy.

The American policy on hate speech evolved from influences such as the civil rights movement, which contended that the most effective way to combat hate speech wasn't through proposed laws. Rather than imposing restrictions, the US has developed an array of mechanisms other than law, including counterspeech and public education, that have been relatively effective at dealing with hate speakers and hate groups. Though not perfect, our method of addressing hate is less dangerous than government censorship and less likely to be weaponized against the powerless.

And the jacket blurbs:

Free Speech Hate Speech

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Philadelphia District Attorney Larry Krasner is perhaps the nation's most prominent "progressive prosecutors." Among his priorities as Philly's DA has been to facilitate sentence reductions and the undoing of criminal prosecutions where there are allegations of prosecutorial misconduct or actual innocence claims. The zeal with which Krasner's office has pursued these aims has raised eyebrows, however.

In June, the Pennsylvania Supreme Court rebuked Krasner's office for withholding evidence and violating its duty of candor to the court when conceding that a death row inmate was entitled to a new trial, and that these failings were not an isolated occurrence. Rather, according to Justice "There have been numerous instances of untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate investigation, and avoidance of hearings" by the office's Conviction Integrity Unit. Accordingly, the court ordered that the Pennsylvania Attorney General's office would receive notice and a right to intervene in any case in which Krasner's office offered concessions to those seeking post-conviction relief.

Yesterday, federal district court judge Paul Diamond concluded that the ethical and legal problems in Krasner's office may be even more serious that the Pennsylvania Supreme Court had found. In a blistering order, he concluded that Krasner and one of his deputies, Matthew Stiegler, may have committed criminal misconduct in a case in which the office sought to undo a criminal conviction, despite a weak legal basis for doing so. Among other things, Judge Diamond accused them of dishonesty to the court, efforts to evade discovery of their conduct, and conspiring to falsely blame a junior attorney for errors in a legal filing for which Stiegler was responsible.

Judge Diamond disqualified Krasner and Stiegler from further work on the case due to their conflict of interest and, more notably, referred them to the U.S. Attorney's office for investigation and potential prosecution.

From Judge Diamond's opinion:

Some excerpts from the long opinion yesterday by Judge Beth Bloom (S.D. Fla.) in Rudnitsky v. Int'l Checkers Ass'n of N. Am. Inc.:

Between 2002 and 2024, [Alexander] Rudnitsky became United States National Champion five times and World Veterans Champion twice in the game of checkers. During that time, Rudnitsky was one of the most active members of [defendant] ICAONA. Indeed, between 2022 and 2025, Rudnitsky served as Vice President of ICAONA. Between 2002 and 2024, ICAONA functioned de facto as the sole organization of its type in the United States.

In 2005, ICAONA became a member of the World Draughts Federation ("FMJD") and obtained the right to conduct U.S. qualifying championships for FMJD international tournaments. As a result, all players from the United States had to go through ICAONA to access FMJD national and international competitions. That also meant that ICAONA established conditions for admission to competitions and rules governing participant conduct, including mandatory membership and financial contribution requirements. One such rule prohibited any mention or promotion of alternative organizations during tournaments.

In 2024, Rudnitsky and his colleagues created an alternative nonprofit organization—the National Draughts Federation of the USA ("NDF"). The primary goal of NDF was to develop international draughts in Florida and the United States through (1) creating and developing an annual international tournament, the MIAMI OPEN, (2) the creation of new social projects in draughts, (3) the development of youth and junior programs, and (4) the popularization of the game at the local community level in Florida. After its creation, NDF announced and began preparing for the 2025 MIAMI OPEN, which was to be held in Florida. The tournament was included in the FMJD calendar.

Free Speech Libel Antitrust

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9/16/1787: The Constitutional Convention finalizes Constitution.

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The Volokh Conspiracy

Disability Accommodations "That Fundamentally Change Court Proceedings, Could Alter the Court's Substantive Decisions," …

Strip Searches Generally Aren't Allowed as Searches Incident to Arrest, Third Circuit Holds,

Free Speech Unmuted: Spoiler Alert: Can You Get Sued For Revealing A Plot Point?

Today in Supreme Court History: September 17, 1787

Open Thread

Nearly 50% of West Bank Palestinians Says Israel Does Not Have A Right To Exist

Use of Flock Cameras Is Not a Fourth Amendment "Search," District Court Rules

Montreal Economic Institute Webinar on Legal Challenges to the Trump Tariffs Against Canadian Goods

Firing of Employee for Kirk-Murder-Related Post Wasn't a Clear First Amendment Violation,

Doxing Suit over Post Criticizing Government Employee's Kirk-Murder-Related Post …

Bold, perhaps; but not Brave and not Right

Samantha Barbas Guest-Blogging on "Hate Speech: The Legal and Cultural History of an American Dilemma"

Federal Judge Refers Philly DA to Department of Justice for Potential Prosecution

Checkers (or Is It Draughts?) Infighting Leads to Court

Today in Supreme Court History: September 16, 1787

Open Thread

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