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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
"Red Sox Spirit" and Constitutional Theory
A potential new approach to state constitutional law.
In the course of a post criticizing the Hawaii Supreme Court's recent "Aloha Spirit" decision interpreting the Hawaii state constitution, co-blogger Josh Blackman suggests that "Red Sox Spirit" might be relevant to interpreting the Massachusetts constitution. It's surprising that it took a New York fan like Josh to see it. But Red Sox Spirit is indeed relevant! Even though I myself didn't see it, previously, despite growing up in Massachusetts.
Red Sox Spirit is all about protecting liberty and resisting tyranny, especially that of the self-proclaimed Evil Empire of Baseball. David "Big Papi" Ortiz - the greatest-ever exponent of Red Sox Spirit summarized it best: "This is our f-ing city and nobody gonna dictate our freedom":
Under the "history and tradition" approach to constitutional interpretation applied by the US Supreme Court in the 2022 Bruen Second Amendment case, the Massachusetts Constitution should be interpreted in accordance with that principle! It's certainly a crucial element of the state's history and tradition.
Resisting tyranny is central to the Massachusetts constitutional tradition, at its best. The American Revolution began in Massachusetts, in response to British imperial tyranny, and its many violations of liberty and property rights. A few years later, in 1783, Massachusetts became the first state to use its constitution to abolish slavery, when the state supreme court held that it violated the constitutional provision mandating that all men are "free and equal" (Vermont had abolished slavery in 1777, but it was not yet a state at the time).
Today, the state would do well to apply the Red Sox Spirit of constitutional law to curb rent control and exclusionary zoning, which threaten constitutional property rights, and create housing shortages that make it impossible for many to enjoy the liberty the state offers. And, as Josh suggests in his post, protection of the right to bear arms is also central to Red Sox Spirit (even if the state's supreme court has ruled otherwise). After all, the Revolution began because the British sought to confiscate arms kept by the Lexington and Concord minutemen, and those privately owned weapons enabled the people to effectively resist the British and eventually defeat them.
The proper application of Red Sox Spirit to state constitutional law isn't always clear. But, when it doubt, ask what Big Papi would do! And then strike another blow for freedom.
On a slightly more serious note, I think "history and tradition" is a badly flawed approach to interpreting the federal Constitution. Conventional "original meaning" originalism is generally better. But what is best for federal constitutional isn't always the right approach for state constitutions. State courts might be justified in using different interpretive methods than federal courts. And, as jurists ranging from liberal Supreme Court Justice William Brennan to prominent conservative Judge Jeffrey Sutton have argued, states often can and should use their constitutions to protect rights more broadly than the Supreme Court's interpretation of the federal Constitution. For example, many did that in response to the Supreme Court's badly flawed property rights ruling in Kelo v. City of New London (2005). Josh's invocation of Red Sox Spirit is on the right track, there!
I think Josh is right that the Guarantee Clause, which guarantees a "republican form of government" to each state, is justiciable, and should not be considered a nonjusticiable "political question." The political question doctrine is generally a mess. And there is no good reason to think courts are somehow less capable of determining what a republican government is than they are of interpreting any number of other somewhat imprecise provisions of the Constitution, such as the Necessary and Proper Clause, or the Fourth Amendment's requirement that searches must be "reasonable."
Unlike Josh, I am skeptical that Hawaii's gun control policies violate that Clause. The original meaning of the Guarantee Clause probably imposes only fairly minimal requirements, perhaps not much more than that the legislative and executive branches be controlled by elected officials, and that there be no hereditary monarchy and aristocracy. After all, most in the Founding era apparently thought slavery and an extremely limited franchise were compatible with the Clause. Some Hawaii gun restrictions do violate the Second Amendment, however, including those recently invalidated by the Supreme Court. States can protect rights more than the federal Constitution does, but not less.
And it may be that federal armed coercion of states - like that recently undertaken in Minnesota during "Operation Metro Surge" - is also incompatible with the Guarantee Clause. If anything undermines republican government, it's usurpation of state authority at literal gunpoint. But maybe we don't need to rely on the Guarantee Clause here, given that the same result can be reached under the currently justiciable Tenth Amendment.
Unlike Josh, I think that the meaning of "invasion" in the federal Constitution is justiciable. For more, see my article on that subject, where I explain why enforcing the correct definition (a military attack, not illegal migration or drug smuggling) is crucial to protecting the separation of powers and preventing both state and federal governments from abusing civil liberties.
In sum, Josh may (however unintentionally) be onto something with the "Red Sox Spirit"!
UPDATE: I have made a few minor revisions to this post, including correcting my initial misunderstanding about Josh Blackman's position on the justiciability of "invasion."
"Academics Spent Years Lending Their Institutional Credibility to Various Political Projects"
Now they are reputationally bankrupt. If they don't repair the damage, and convince people to keep writing the checks, many institutions will eventually be financially bankrupt as well.
Wise words from Megan McArdle (Washington Post). A bit more from the same column:
Academics need to sell the public on the value of their project. They must convince people that the radical pronouncements of the Great Awokening were a terrible mistake, now corrected, and that they are pursuing truth, not political agendas. Many people in academia do understand this, including the administrators who commissioned {the "Report on the State of Scholarship in the Humanities and the Humanistic Social Sciences," commissioned by Vanderbilt and Washington University in St. Louis}.
But many others are still clueless. Even if they grasp, dimly, that something is seriously amiss, they do not understand what it will take to fix the problem. Their idea of a solution is to imperiously inform Americans they are wrong: wrong that academia has let politics infect its work, wrong that reform is needed, and wrong that there are two sexes, male and female.
Today in Supreme Court History: July 19, 1949
7/19/1949: Justice Frank Murphy dies.
Open Thread
What’s on your mind?
The "Free Market" is More Popular than "Capitalism"
Such anomalies are common when polling often-ignorant voters. But libertarians would do well to take note, anyway.
A recent Echelon Insights poll finds that the "free market economy" is more popular than "capitalism." 53% of respondents say they have a "very" or "somewhat" favorable view of the former, while only 12% have an very or somewhat unfavorable view. By contrast, "capitalism" is viewed very or somewhat favorably by 49%, while the two unfavorable categories combine for 29% (more than the double percentage for "free market economy").
Other polls show similar results. For example, a recent Gallup survey finds 54% have a positive view of "capitalism," but 81% say the same of "free enterprise." A December 2025 Napolitan News Service poll conducted by prominent conservative pollster Scott Rasmussen found 64% of respondents have a favorable view of the "free market," but only 53% say that of "capitalism." A Reason-Rupe poll reached a similar result back in 2015. In Echelon and some other polls, "capitalism" polls unusually badly among younger people, while "free market" mostly does not.
Such variation in responses based on question wording isn't surprising. It occurs with respect to many issues. In a world of widespread political ignorance, many people don't have carefully thought out views on a variety of issues, and can easily be influenced by the way questions are worded. Many are also confused in other ways. Rasmussen's poll even found that 48% of those who have favorable opinion of "socialism" also have a favorable opinion of "capitalism"! Yet rejection of capitalism is a central element of socialist ideology. If capitalism works well, that strongly implies socialism does not (and vice versa).
It is not entirely surprising that "free market" generates more favorable reactions than "capitalism." The former has positive intuitive associations with freedom and choice. The latter has associations with "capital" and "capitalists," which words make many of us think of greedy, selfish business interests and rich people. It is no accident that "capitalism" was first used and popularized by nineteenth century socialists!
In a better world, people's reactions to ideas should not be so susceptible to variations in wording. But in the world we actually live in, libertarians and other free market advocates (notice I did not say "capitalism advocates"!) should take note. As much as possible, we should use "free market" and similar wording (e.g. - "free enterprise"), while abjuring "capitalism." I myself have largely been following that practice for many years. I urge others to do the same.
Is The Hawaii Supreme Court's "Aloha Spirit" Consistent With A Republican Form Of Government?
The Hawaii Supreme Court argued the 50th state's history was inconsistent with the Second Amendment. Perhaps the Constitution is inconsistent with the "Aloha Spirit."
Hawaii was admitted as the 50th state in 1959. The experience of the Hawaiian people was very, very different from the experience of the people in the other 49 states. The United States of America was established by overthrowing a monarch in 1776. Hawaii remained under the control of a monarch until 1893. During the Nineteenth Century, as the American states and territories lived with a right to keep and bear arms, Hawaii had no such protection. Justice Jackson recounts this history in her Wolford dissent:
Since its time as a sovereign kingdom, Hawaii has never permitted the widespread carrying of firearms in its territory. In 1833, King Kamehameha III of the Kingdom of Hawaii prohibited the possession of "dangerous weapon[s]." Translation of the Constitution and Laws of the Hawaiian Islands, Established in the Reign of Kamehameha III 163 (1842) (reprint 1934) (targeting possession of any "knife, sword-cane, or any other dangerous weapon"). Hawaii maintained this tradition of strictly regulating weapons both before and after it was annexed as a U. S. territory in 1898.
There was an extended discussion of whether Justice Jackson should have relied on racist Jim Crow laws, but the citation to Hawaiian monarchical laws is even more problematic. Why is it relevant that a King imposed a prohibition on carrying arms. King George III, and General Thomas Gage, imposed prohibitions on arms in the Massachusetts Bay colony. That violation of rights triggered the Revolutionary War, and inspired the Second Amendment. There is no reason to cite King Kamehameha's laws as a means to interpret the Second Amendment.
The Hawaii Supreme Court has stated that it interprets the federal Constitution based on the unique legal history of the state. Justice Eddins of the Hawaii Supreme Court wrote in State v. Wilson that the "Aloha Spirit" should inspire how his court reads the federal Constitution:
In Hawai'i, the Aloha Spirit inspires constitutional interpretation. See Sunoco, 153 Hawai'i at 363, 537 P.3d at 1210 (Eddins, J., concurring). When this court exercises "power on behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people" we "may contemplate and reside with the life force and give consideration to the 'Aloha Spirit.'" The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others. See Haw. Const. art. IX, § 10 ("The law of the splintered paddle … shall be a unique and living symbol of the State's concern for public safety.").
The Supreme Court rightly rejected Justice Eddins's reading of the Constitution:
As the plurality explained in McDonald, the Second Amendment has the same meaning in all parts of the United States. 561 U.S. at 784–785, 130 S.Ct. 3020. It cannot give way to "the spirit of Aloha" in Hawaii, any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald). It applies in the same way to our 50th State (where about 8% of adults possess guns) and our 49th State (where the figure is roughly 59%).Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.
The "Aloha Spirit," whatever that is, developed from a very different legal, political, and social set of circumstances than the states on the mainland. Can a state supreme court justice, who takes an oath to the federal Constitution, base his decisions on a "spirit" that is inconsistent with the American history and tradition? Stated more bluntly, is the Hawaii Supreme Court's "Aloha Spirit" consistent with a Republican form of government? Could a justice on the Massachusetts Supreme Judicial Court cite General Gage's seizure of firearms to support the Commonwealth's strict gun control laws? Is there a "Red Sox Spirit"?
Still, I think the problem goes even deeper. Justice Eddins seems to be saying that the Hawaiian legal system is alien from the legal system that developed on the mainland. I don't think Justice Eddins (or his chatbot) has fully thought through the implications of that position. Indeed, there is a relevant Supreme Court case from 1901 about another territory:
If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.
Of course, this passage comes from Downes v. Bidwell, one of the Insular Cases.
The Hawaii Supreme Court argued the 50th state's history was inconsistent with the Second Amendment. Perhaps the Constitution is inconsistent with the "Aloha Spirit."
As states and their courts continue to go off the deep end, we need to give more thought to the Guarantee Clause. One question that has been on my mind: would a state that adopts an expressly socialist system of government be consistent with a Republican form of government?
The Supreme Court ducked the "invasion" issue in Barbara, but the justiciability of these sorts of questions are not going anywhere.
Update: A reader noted that the "Aloha Spirit" is actually part of Hawaii's statutory laws:
§ 5-7.5 "Aloha Spirit". (a) "Aloha Spirit" is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, "Aloha", the following unuhi laulā loa may be used:
"Akahai", meaning kindness to be expressed with tenderness;
"Lōkahi", meaning unity, to be expressed with harmony;
"ʻOluʻolu" meaning agreeable, to be expressed with pleasantness;
"Haʻahaʻa", meaning humility, to be expressed with modesty;
"Ahonui", meaning patience, to be expressed with perseverance.
These are traits of character that express the charm, warmth and sincerity of Hawaii's people. It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi. "Aloha" is more than a word of greeting or farewell or a salutation. "Aloha" means mutual regard and affection and extends warmth in caring with no obligation in return. "Aloha" is the essence of relationships in which each person is important to every other person for collective existence. "Aloha" means to hear what is not said, to see what cannot be seen and to know the unknowable.
(b) In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit". [L 1986, c 202, § 1]
Maybe Texas should just instruct all of its officials to "contemplate and reside with the life force and give consideration to "Christ's Spirit."
Trump's Harmful and Unjust New Restrictions on Foreign Students
They are likely to damage the US economy and deny many people valuable educational opportunities for no good reason.
The Trump administration recently adopted new, gratuitously restrictive, rules constraining foreign students at US universities. My Cato Institute colleague David Bier, a leading expert on immigration policy, has a helpful piece summarizing the policy changes, and their pernicious nature:
Previously, international students on F visas, exchange visitors on J visas, and foreign media on I visas were granted admission for their "duration of status"—that is, for as long as they were in status or following the rules of the visa programs. DHS's final rule replaces that with a fixed period of entry of no more than four years (for international students and exchange visitors). But it does far more than end open-ended admission. Littered throughout it is a set of unprecedented restrictions with no statutory basis.
- Students can't change majors or transfer schools in year one—and graduate students can't ever. The rule's own summary states it plainly:
For F‑1 students changing educational objectives or transferring to an SEVP-certified school, requiring that the student complete his or her first academic year of a program of study at the school that initially issued his or her Form I‑20 or successor form, unless an exception is authorized by SEVP; Prohibiting F‑1 students at the graduate education level or above from changing educational objectives at any point during a program of study.
Undergrads get one year before this restriction lifts. Graduate students never get it lifted at all, absent a SEVP exception. Change your mind about your PhD topic in year four, and you're the same as someone violating status on day one.
- You can't complete a second degree at the same level, or step down a level, ever. Also from the summary:
Requiring any nonimmigrant who has completed a program at one educational level to only be allowed to begin another program at a higher educational level as an F‑1 student and prohibiting a change to the same or a lower educational level while an F‑1 student.
Finish a master's and want a second master's in a different field? Illegal. Finish a PhD and want to pick up an associate's degree in something practical? Illegal.
- DHS's real response to people worried about the need to double-major: plan ahead, or too bad. Commenters pointed out this would devastate students in interdisciplinary fields who need two degrees to do their work. DHS's answer:
this rule does not prevent students who need double majors to achieve their goals from planning ahead and enrolling in both at the same time. For example, nothing in this rule prevents someone from doing a J.D./M.B.A. program at one institution with one I‑20 indicating the program end date that accounts for the longer time it takes to complete the double major.
A J.D. and M.B.A. are not even examples of majors at all, as opposed to types of credentials, so whoever wrote this rule doesn't have the slightest idea what students are even doing in higher education. More to the point, though, many people arrive at a US university not already knowing they'll need to pursue a joint degree on day one. DHS's answer to that reality is: you should have known in advance.
As David explains, the new rule also makes it more difficult for foreign students to find jobs and stay in the US after graduation.
From an educational and economic point of view, the new rules make no sense. As David notes, some degrees take more than four years to complete, for various reasons, and there are often good reasons for students to change fields, add additional majors, and the like. The real purpose of all of this is just to reduce the number of foreign students.
That, in turn would, over time, do serious damage to the US economy, especially in combination with other anti-foreign student measures adopted by Trump. Johns Hopkins Prof. Michael Clemens - one of the world's leading immigration economists - recently published a valuable article outlining many of these harms:
For generations, students from around the world have fueled universities in the United States, their top destination by far. Those students don't just sustain a $43 billion export industry in higher education services per year. Many remain after graduation as a key source of high-skill science and engineering workers, and thus innovation and growth in the US economy.
That system is now crumbling. The White House has enacted a spate of policies to restrict and repel international students en masse….
These policies, if sustained, would constrict a key supply of science and engineering talent to the US economy, reducing productivity and slowing economic growth in the long run. Using imperfect but best-available estimates from the economics research literature, we project the loss produced by a sustained decline of one third in international student inflows. Over the course of a decade, real US GDP would be smaller than it would be otherwise—an annual loss, at current GDP, of between $240 billion and $481 billion. The annual loss would be comparable to erasing the entire economy of Wisconsin or South Carolina.
The one-third reduction is extrapolated from the effects of Trump policies adopted even before this latest rule.
Clemens' article outlines the basis for these estimates in detail, and also notes additional harms that they do not consider. For example, many US universities are significantly dependent on foreign-student tuition, which is often used to subsidize financial aid for US-citizen students.
The new policies are also layered on top of Trump's unconstitutional and harmful efforts to deport foreign students who engage in political speech the administration doesn't approve of, a policy which, among other flaws, is a menace to academic freedom.
In addition, the new policies will deny valuable educational and career opportunities to many thousands of would-be students. And for no better reason than that they were born to the wrong parents in the wrong place. Conservatives rightly condemn racial and ethnic preferences in college admissions as unjust and anti-meritocratic, because they judge applicants based on morally arbitrary circumstances ancestry over which people have no control. In previous writings (see here and here), I have outlined why immigration restrictions - including discrimination against foreign students - are unjust for similar reasons, but to a much greater extent, because the effects are much larger. The difference between going to lower-tier school instead of, say, Harvard (the effect of racial affirmative action) is not as great as that between being allowed to study in the US and being categorically excluded.
Trump's Pernicious Threat to Impose Tariffs on Canada in Response to Wildfires
The idea is simultaneously harmful and illegal.
Much of the eastern United States has recently been affected by smoke originating from massive wildfires in Canada. It's a genuine problem. But Trump's threat to impose new tariffs on Canadian goods in response won't make the situation any better. If implemented, it would damage both the US and Canadian economies, and further poison relations between the two countries. And it has no chance of actually alleviating the wildfire problem. Furthermore, no law authorizes the president to impose tariffs in response to natural disasters like this one.
Trump claims the tariffs are justified because "[w]e are holding Canada responsible for the fact that they are not properly maintaining their Forests, and Brush therein, and the United States is being unnecessarily invaded by filthy, polluted, and unhealthy air." But, in reality, the fires are caused by a combination of lightning, weather patterns, and global warming. They cannot be fixed by improvement "forest management."
I suppose one can argue Canada is partly responsible for the fires because they contribute to global warming. But the same is true of the US, and on a much larger scale (because we have a much larger population and economy). In any event, higher tariffs aren't likely to somehow lead Canada to prevent the wildfires.
What new tariffs would do is increase prices for American consumers, and reduce the productivity of the many US industries that rely on Canadian imports as inputs in their production process. For example, a December 2025 study by the US Chamber of Commerce documents the great harm caused by Trump's earlier tariffs on Canadian aluminum. Similarly, tariffs on Canadian lumber increase the cost of housing construction, thereby further exacerbating our housing crisis. The two countries' economies are highly integrated, and there are many sectors where we mutually benefit by purchasing goods that the other country can produce at higher quality and lower prices.
New tariffs will also, of course, cause pain and suffering in Canada. But that is both bad in itself, and likely to further damage the US. It's better for us to have a prosperous and growing neighbor than the opposite. Among other things, a wealthier Canada is likely to purchase more US exports, produce more goods and services we might want to buy, and generate better investment opportunities.
In addition, a new wave of tariffs would further poison relations with Canada, which have already been seriously damaged by Trump's previous tariffs and his repeated threats to annex Canada and make it the 51st state. Gratuitously alienating our neighbor and vital ally isn't "Making American Great Again." It's making us weaker and more isolated at a time when we need to work with allies to counter adversaries like Russia and China.
I know many people in Canada, including a good many conservatives and libertarians traditionally highly sympathetic to the US. Thanks to Trump and his policies, many of them are now deeply alienated from us, or at least highly suspicious. And it's not just a my admittedly unrepresentative acquaintances who feel that way. Polls of Canadian opinion confirm a massive growth in anger and distrust of the United States. Americans underestimate the dangers of ruining this relationship at our peril. We don't want to replace a friendly and accommodating neighbor with a hostile one.
Finally, it's worth noting that Trump does not have the legal authority to impose tariffs in response to wildfires. Under the Constitution, tariffs are a congressional power, not an executive one. The Supreme Court forcefully reaffirmed that principle when it invalidated Trump's IEEPA tariffs (in a case I helped litigate). And there is no statute authorizing the president to impose tariffs in response to wildfires or other similar natural disasters in a neighboring country.
Trump is currently planning to reimpose something like the IEEPA regime using Section 301 tariffs. That plan is itself illegal for reasons Peter Harrell and I have outlined in various writings (see here and here). In any event, as Peter details, Section 301 can only be used in response to "unjustifiable" or "unreasonable or discriminatory" trade practices by foreign governments. Wildfires are pretty obviously not a trade practice.
The same goes for Trump's efforts to impose massive new tariffs using Section 122 of the Trade Act of 1974 (recently struck down by the US Court of International Trade). Section 122 can only be used to counter "balance of payment deficits" and related problems. Wildfires pretty obviously don't qualify. Nor is there any other statute that provides for tariffs in such situations.
Trump's interpretation of the IEEPA statute would have allowed him to impose tariffs here, as well, since it would give the president the power to impose tariffs virtually anytime he wants, so long has he claims it is in response to a "national emergency" that amounts to an "unusual and extraordinary threat." But the courts rejected his position in large part precisely because it gave him such unlimited power.
Perhaps Administration lawyers will yet develop some novel legal theory to try to justify the imposition of tariffs here. But, if they do and Trump acts on it, hopefully courts will reject it.
Ultimately, this situation is yet another reminder that we should not give one man a blank check to impose tariffs whenever he feels like it. Allowing that undermines the constitutional separation of powers, causes great economic harm, damages our relations with allies, and menaces the rule of law.
Today in Supreme Court History: July 18, 1942
7/18/1942: Justice George Sutherland dies.
Open Thread
What’s on your mind?
Site Linking to Abortion-Pill-Selling Websites Likely Protected by First Amendment, Even in States That Generally Ban Abortions
Mayday Health runs a website that provides various information about abortion pills. South Dakota law provides, in relevant part,
No person may knowingly dispense, distribute, sell, or advertise any of the following for purposes of an unlawful abortion pursuant to § 22-17-5.1:
[1] An article or thing designed, adapted, or intended for producing an abortion; or
[2] An article, instrument, substance, drug, medicine, or thing that is advertised or described in a manner calculated to lead another to use or apply it for producing an abortion.
A violation of this section is a Class 6 felony….
Any person [other than the pregnant female herself -EV] who administers to any person or who prescribes or procures for any person any medicine, drug, or substance or uses or employs any instrument or other means with intent thereby to procure an abortion, unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female is guilty of a Class 6 felony.
Today's longish decision by Judge Camela Theeler (D.S.D.) in Mayday Health v. Rhoden issued a preliminary injunction blocking the enforcement of this law against Mayday Health; a few excerpts:
[1.] The court observes that the law (as applied to speech) is a content-based speech restriction, and thus is unconstitutional unless it fits within an exception or passes strict scrutiny. The court held that the law didn't fit within the category of "commercial speech," which is entitled to less protection:
"Are LLMs Stifling Political Speech? An Assessment of How AI Models Protect Free Expression"
A new report from Meta's Oversight Board.
The report is here. . Note that the results were based on queries sent "from an IP address in Australia," so this didn't just reflect (for instance) an AI company choosing to apply Chinese law to requests that seem to come from China. The Executive Summary:
The Oversight Board's first evaluation of large language models (LLMs) shows that some of the world's most-used models from Anthropic, DeepSeek, Google, Meta and OpenAI are significantly less likely to criticize political regimes that restrict free expression. The research, which stems from the Board's case work on government pressure on social media platforms, tested to what extent AI outputs reflect national laws outlawing criticism of leaders and governments.
Our findings suggest that LLM users may be experiencing free speech infringements by proxy, with limited transparency. Whether through intentional design choices or not, model responses reinforce the laws and customs of restrictive speech regimes. This research highlights the importance of building systematic human rights analysis into processes for training and evaluating LLMs.
Key Finding: LLMs Tested are More Than Twice as Likely to Refuse to Criticize Repressive Leaders and Governments
The Board tested 10 commercial LLMs, asking the models to produce politically critical materials about governments and leaders around the world. Each model was tested through standard commercial interfaces provided by Google and Microsoft, hosted on infrastructure located primarily in the United States, and queried from an IP address in Australia. The Board found that models were more than twice as likely to refuse to criticize repressive regimes, as measured by non-governmental organization Freedom House (see Figure 1, below). Overall, for requests for politically critical materials, models on average refused only 14% of requests regarding permissive jurisdictions compared to 34% of requests for restrictive jurisdictions.
Figure 1. Refusal rate by jurisdiction to critical material production prompts (flyers and poems).
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Financial surveillance, impaired contracts, and games of gotcha.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: Privately nondelegating horse puns.
- In 2020, the U.S. Postal Service made a number of changes that reduced service. New York, New Jersey, and Hawaii sue, alleging that the changes will impede voting by mail. The district court enjoins the changes. D.C. Circuit: No jurisdiction. Congress said you have to take these challenges to the Postal Regulatory Commission first.
- Rhode Island, like many states, limits a motor vehicle manufacturer's ability to establish a new dealership near one of its existing in-state dealerships. Unlike other states, Rhode Island law extends this limit to new dealerships established in neighboring states. First Circuit: That sort of extraterritorial regulation violates the Dormant Commerce Clause.
- Agents in Puerto Rico seize a man's phone via a search warrant for an iPhone 6s. There is bad stuff on the phone. Oof! Turns out the phone they searched is an iPhone 13. Agents: Good-faith exception applies. It was an iPhone linked to the same phone number. First Circuit: The 6s and 13 aren't even the same size, and the agents realized they had the wrong phone at the time. Motion to suppress affirmed. Read More
Helpful Judges
A footnote from today's D.C. Circuit opinion by Judge Justin Walker in U.S. v. Littlejohn; the underlying issue was whether a district court judge acted improperly in asking a question of a government lawyer that may have been aimed at helping the government's case:
[Littlejohn] notes that the district court repeatedly pressed the Government about why it brought only one felony charge against him when far more charges were possible. But that is hardly evidence of a predetermined sentence. When the district court asked about the charging decision before the plea hearing, the district court was likely weighing the reasons for and against accepting the plea bargain (which is a judicial responsibility). Then, when the court asked about it again at sentencing, the court was likely giving the Government an "opportunity to make it clear to the public" why Littlejohn didn't face more charges.
[Footnote:] Littlejohn complains that at sentencing the district court said it was asking these questions "to help" the Government. But it's likely the court was only trying "to help" the Government inform the public about the reasons for the lenient charging decision in this high-profile case. In any event, judges are not required to ask only hostile questions at a sentencing hearing—or at an appellate argument, for that matter. See Oral Arg. Tr. at 7, Ransom v. FIA Card Services, N.A., 562 U.S. 61 (2011) (No. 09-907) (Justice Scalia: "I'm trying to help you."); Oral Arg. Tr. at 13, United States v. Tinklenberg, 563 U.S. 647 (2011) (No. 09-1498) (Justice Scalia: "I'm trying to help you."); Oral Arg. Tr. at 21, United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023) (Nos. 21-1326 & 22-111) (Justice Sotomayor: "I've never heard an attorney fighting people trying to help him."; Justice Gorsuch: "It happens all the time here."); Oral Arg. Tr. at 10, Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025) (No. 23-975) (Justice Sotomayor: "I was trying to help you."); Oral Arg. Tr. at 34, Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012) (No. 10-1016) (Justice Sotomayor: "I thought Justice Alito was trying to help you."; Justice Breyer: "He was."); Oral Arg. Tr. at 41, Martel v. Clair, 565 U.S. 648 (2012) (No. 10-1265) (Chief Justice Roberts: "No. I'm trying to help you."); Oral Arg. Tr. at 38, White v. Woodall, 572 U.S. 415 (2014) (No. 12-794) (Justice Scalia regarding Justice Breyer: "He's trying to help you, counsel.").
For more on the underlying case, see D.C. Circuit Upholds 5-Year Sentence for Leaker of Trump's and Others' Tax Returns. Thanks to Andy Patterson for the pointer.
Judge Faults Federal Government Lawyer for Apparent AI Hallucination
From Judge Hala Jarbou (W.D. Mich.) yesterday in Daghra v. Hinkley:
Petitioner, a United States Immigration and Customs Enforcement detainee, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. An immigration judge had granted Petitioner a bond of $35,000, but the bond order was stayed pending appeal to the Board of Immigration Appeals pursuant to 8 C.F.R. § 1003.19(i) (2025). Petitioner argued that the 90-day automatic stay provision in § 1003.19(i) violates the Fifth Amendment's Due Process Clause, and sought an order requiring the Government to allow him to post bond. While this lawsuit was pending, the automatic stay of Petitioner's bond order expired. The Government now represents that the bond order is back in effect and Petitioner will be released if he posts the $35,000 bond. Accordingly, the Court finds that the habeas petition is moot and dismisses it without prejudice.
There is one additional issue in this case that the Court must address. In the Government's response to the Court's initial order to show cause, it stated the following:
More recently, the Sixth Circuit has reiterated that § 1226(e) bars challenges that "ask the court to reweigh the evidence underlying a bond decision or second-guess the Immigration Judge's discretionary judgment." See Taylor v. Hott, 724 F. App'x 387, 392 (6th Cir. 2018) (district court lacked jurisdiction to review IJ's bond denial where petitioner challenged flight-risk determination) ….
My New Boston Globe Article on Trump's Bogus Election Fraud Claims
It explains why Trump is wrong and how federalism can help counter his efforts to subvert the 2026 midterm elections.
The Boston Globe just published my article [gift link here] on Trump's election fraud speech from last night. Here is an excerpt:
In a speech Thursday night, President Trump claimed there have been serious breaches of election security and repeated his assertions that the 2020 election was compromised. As in the past, these remarks are utterly indefensible. And they are likely part of an illegal effort to federalize control over the upcoming midterm elections, so as to tilt the results in his party's favor. Hopefully, America's courts and federal system will continue to stymie him.
Trump claimed in his speech that some 278,000 non-citizens illegally registered to vote . There is no real evidence to support this, and even he didn't claim proof there was any significant actual illegal non-citizen voting. Decades of efforts to find such evidence — including by the right-wing Heritage Foundation — have turned up no more than a few dozen cases, over a span of several decades…
These claims are intended to bolster Trump's long-standing assertions that the 2020 election was somehow "stolen" from him. Overwhelming evidence shows the contrary. In 2020-21, Trump and his political allies filed 64 court cases challenging the results in six key swing states. As detailed in "Lost, Not Stolen," a review of these cases conducted by prominent Republican lawyers, election law specialists, and former federal judges, none of these decisions found significant evidence of voter fraud…
If some combination of Democrats and foreign powers had managed to "steal" the 2020 election while Trump was in the White House, and avoid detection in the process, one wonders why they didn't do it again in 2024, when a Democratic president was in power and in control of the Justice Department and the intelligence community. The fact that no such thing happened then is yet further evidence that it didn't happen in 2020.
The real purpose of Trump's ongoing lies about the 2020 election and election security may be to bolster his efforts to "nationalize" control of the 2026 midterm elections, so that he can skew results in his party's favor…
Fortunately, Article 1, Section 4 of the Constitution gives states primary responsibility for election administration, subject to override by congressional legislation. No current federal law gives Trump the authority he seeks. Numerous federal courts — including in cases presided over by Republican-appointed judges — have rejected his attempts to change voter ID rules by executive order and take control of state voter rolls. Courts should similarly rule against any potential efforts to use federal law enforcement agencies or — worse still — troops, to seize control of polling sites and ballots…
America's decentralized system of election administration has downsides, as well as virtues. But, as leading election law scholar Richard L. Hasen notes, it provides valuable protection against "a president hell-bent, like Trump, on election subversion." Hasen, previously an advocate of election law centralization, adds that this has led him to reconsider.…
Pentagon Journalist Escort Requirement Can Continue Pending D.C. Circuit Decision
From yesterday's decision in N.Y. Times Co. v. U.S. Dep't of Defense, by Judges Karen LeCraft Henderson and Patricia Millett, which stayed a lower court order that had blocked the policy:
[O]n the record before us, [the government defendants-Appellants] are likely to succeed on their argument that [the] generally applicable escort requirement does not constitute a "sufficiently adverse action to give rise to an actionable First Amendment claim" of retaliation. [Plaintiffs-Appellees] have not argued that the escort requirement is not, in fact, generally applicable and applied across the board to all reporters. Nor have they argued that the policy is not being implemented evenhandedly. Neither have they contended that the policy has a distinctively adverse impact on them or their news reporting ability that is different from the policy's effect on all other covered reporters.
In addition, neither Appellees nor the dissenting opinion cite a single case supporting their conclusion that this neutrally and evenhandedly applied, generally applicable policy with no demonstrated distinctive harmful impact on Appellees can, without more, constitute retaliation under the First Amendment. Finally, Appellees' claims that the escort requirement is unlawful for reasons other than retaliation have not been raised before us as a basis for denying the stay.
The court also set the case for expedited oral argument. Judge Bradley Garcia dissented:
In October 2025, the Department of Defense adopted a new, restrictive policy governing credentials for journalists at the Pentagon. The New York Times and its reporter Julian Barnes sued, and the district court issued an injunction. Within days, the Department announced a new policy that, among other things, required credentialed reporters to be escorted at all times while on Pentagon grounds. The Times and Barnes moved to compel compliance, arguing that the escort requirement ran afoul of the district court's order. The district court granted that motion. This court—based on my vote and Judge Walker's—granted the government's request for a limited stay pending appeal because the district court's original injunction "did not address" the later-imposed escort requirement and "the district court did not hold that the escort requirement independently violates" the Constitution.
The district court has now assessed the lawfulness of the escort requirement. The Times and Barnes filed a separate lawsuit directly challenging the new policy. The district court preliminarily enjoined the policy's escort requirement after determining that "it was issued to retaliate against the plaintiffs for exercising their constitutional rights."
