From yesterday's decision in In re Nwaubani, from the Fourth Circuit (Judges Marvin Quattlebaum, Allison Rushing, and DeAndrea Gist Benjamin):
This attorney discipline matter stems from attorney Eric Chibueze Nwaubani's briefing submitted in Bolden v. Baltimore Gas and Electric Co., No. 23-2195, 2025 WL 1355304 (4th Cir. May 9, 2025), an employment discrimination appeal argued before this court. Concerned that Nwaubani's briefing contained citations to nonexistent judicial opinions potentially derived from generative artificial intelligence (AI), the court's Standing Panel on Attorney Discipline initiated disciplinary proceedings against Nwaubani to determine whether his conduct violated any of the court's Local Rules of Appellate Procedure. After reviewing the show cause notices, responses and briefing in this case, we determine that Nwaubani's conduct violated Local Rule 46(g)(1)(c). As a result, and as further explained below, we issue a public admonishment….
We begin with how Nwaubani's conduct came to the attention of the court. During his representation of the plaintiff on appeal in Bolden, the Bolden panel discovered that a case cited in Nwaubani's brief, Nationwide Mutual Insurance Co. v. Jackson, 548 U.S. 629 (2006), did not exist. So, it issued an order directing Nwaubani to file a revised brief and show cause as to why he should not be sanctioned.
His response to the initial notice denied using generative AI in preparing his briefs and instead stated that he mistakenly cited Jackson when he meant to cite a different case, Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992). He also provided a tenuous explanation for why Darden, a case concerning the Employee Retirement Income Security Act of 1974, was relevant to his appeal. That said, when Nwaubani filed his revised opening brief, he omitted his earlier argument and did not cite Darden at all.
The students allege they weren't involved in the Oct. 11, 2023 Columbia student groups' letter that blamed Israel for the Oct. 7 attacks, and that labeling them ""Columbia's Leading Antisemites" based on that letter was therefore false and defamatory.
Defendant [AIM] is a not-for-profit corporation that allegedly uses investigative journalism to expose bias, corruption, and public policy failings. Defendant Adam Guillette ("Guillette") is AIM's president. On October 23, 2023, Guillette, through AIM, purchased internet domain names and created websites in each of the Plaintiffs' names. Defendants used Plaintiffs' names and photographs to engage in a campaign that falsely claimed Plaintiffs were leaders of student organizations that signed an October 11, 2023 letter (the "Letter") which blamed Israeli policies for the October 7, 2023 attacks. The websites bearing Plaintiffs' names contained their pictures and labelled them as "Columbia's Leading Antisemite(s)."
As part of the campaign, Defendants created and funded mobile billboard trucks, which like the websites created by Defendants, displayed Plaintiffs' images and names and labelled them Columbia's Leading Antisemites. The billboards were driven around Columbia University, where Plaintiffs were enrolled. The mobile billboards were even allegedly sent to Plaintiffs' homes…. However, none of the Plaintiffs were leaders of any student organization that signed the Letter.
Plaintiff Yusuf Hafez … was president of Turath, an Arab cultural group at Columbia, from September 2022 until May of 2023. Turath signed the Letter, but Hafez held no leadership or decision-making role in Turath at the time the Letter was signed. Despite Defendants acknowledging that non-party Yara Saabneh … was Turath's president at the time the Letter was signed, and despite public information confirming Hafez had no role in Turath's leadership in October of 2023, Defendants still embarked on a public campaign of labelling Hafez as "Columbia's Leading Antisemite."
{According to Guillete, Defendants identified Hafez as an antisemite based solely on an article from January 19, 2023, which identified Hafez as the president of Turath, a page from a Columbia networking site from October 20, 2023, which inaccurately listed Hafez as Turath's "primary contact," and a video from April 19, 2023 where Hafez claimed he was president of Turath.} {At the time the Letter was signed, Turath's website identified the new leadership board, on which Hafez played no role.} …
Last week, the Supreme Court used its emergency docket to review to cases from two lower courts' emergency docket. The postures were different but the upshot was clear: the United States Supreme Court thought that the New York Court of Appeals and the Ninth Circuit did not properly exercise its discretion with emergency appeals. As I wrote, "inferior courts on both coasts used their emergency dockets, and the Supreme Court reversed both rulings."
Despite all of the criticism of the Supreme Court's emergency docket, we should not forget that lower courts use their emergency docket all the time. Why should lower courts be free to rule on their emergency docket but not the Supreme Court? Indeed, the failure of lower courts to grant emergency stays necessarily leads to emergency Supreme Court appeals.
The latest episode from the Ninth Circuit illustrates this precedent. The Ninth Circuit, as matter of practice, will grant an administrative stay to block the removal of every alien. The merits are irrelevant. The de facto rule is that removals cannot proceed. And, as with any administrative stay, there is no explanation or reasoning. The Ninth Circuit issues these orders from the shadow docket. These stays, no matter how frivolous, can last for months or years. This practice dwarfs any concerns that Justice Barrett had with administrative stays from the Fifth Circuit.
Judge VanDyke described this practice in a dissental in Rojas-Espinoza v. Bondi. He compared the Ninth Circuit to the "wonderful Circuit of Wackadoo" where all the motions for administrative stays in immigration cases are granted:
So the judges of Wackadoo adopted a convenient, but unwritten, practice. Whenever a party made a request for any form of preliminary relief, the Circuit would automatically grant the requested relief as an "administrative stay" pending review. Then the Circuit would file away the technically unresolved motion for months or years, until some of its judges got around to reviewing the merits of the case. Then at that time, the judges could conveniently dust off the motion for preliminary relief to resolve it simultaneously with the merits decision.
But this plan didn't work out as the cases piled up:
In short order, the Circuit of Wackadoo's docket became more crowded than ever with thousands of utterly meritless motions for stays and injunctions. For the hardworking judges of Wackadoo, this only reinforced their steadfast belief that the automatic-grant and deferred-review process was now more essential to the orderly and efficient management of their docket than ever before.
As Chilli Heeler would say, Wackadoo!
Yesterday, the newest member of the Ninth Circuit, Judge Eric Tung, opined on the issue in another opinion from the same case. Tung explained that the motion for a stay in this case was "patently frivolous" and cited a statute authorizing stays that had been repealed. Tung further wrote that the practice of automatic stays is inconsistent with Nken v. Holder. (A similar issue arose with the District of Maryland's rule to automatically grant habeas in removal cases.) This policy, Tung writes, lacks any legal justification:
Nevertheless, our court has disregarded (and continues to disregard) these instructions in its implementation of an automatic-stay policy. In this court, prolonged stays of removal are issued virtually as a matter of right; the court reflexively grants stays pending the appeals process; it places the burden not on the applicant to show why a stay is warranted, but on the government to oppose the stay and to seek a more expedient resolution; and it does not assess any of the traditional stay factors, including the merits or the public interest, before granting the automatic stay. Our practice, simply put, lacks any legal justification.
And the Ninth Circuit took this action on its shadow docket:
This court has now vacated the panel's decision. The en banc panel appears to have validated the three-judge panel's reasoning by swiftly issuing a terse order denying the petitioners' motion to stay removal. But the en banc panel says absolutely nothing about whether the court's practice of granting prolonged automatic stays is lawful. The three-judge panel carefully explained that this court's practice defies Supreme Court precedent. Yet not a single member of this en banc panel has tried in its order to rebut that conclusion. Meanwhile, the majority has successfully erased it as precedent. Under cover of darkness, the en banc court buried the body, and there is not much hope of a resurrection. . . .
But reasoned disagreement, explained in our decisions, is a hallmark of our system. We are not party functionaries of a politburo in which raw political power is asserted in backrooms and without reason. We are members of a court. We exercise judgment, not will, and we are bound by law. "[R]eason," as Lord Coke reminds us, "is the soul of law." Milborn's Case, 7 Co. Rep. 6b, 7a (1587). In acting without reason here, we risk losing our character as a court.
Sounds like a shadow docket to me.
If lower courts can use the emergency docket to issue unexplained rulings while wiping out panel rulings, then certainly the Supreme Court should be able to do the same for panel rulings. Indeed, I think the need for a Supreme Court shadow docket is far greater than the need for a lower court shadow docket. In many ways, this inferior court shadow docket operates as a judicial version of the deep state: a permanent bureaucracy that experts insist must be deferred to. The Supreme Court wrestles mightily with trying to get these lower courts to fall into compliance. Some lower court judges have been reversed twice by SCOTUS in the same case. But as Judge Reinhardt would say, SCOTUS can't catch them all. Dare I say there is a "judicial resistance"? Stay tuned for a future essay on that topic.
Is the FCC about to revive a broad reading of the Equal Time Rule—and should broadcast TV still get "special" First Amendment treatment in 2026? Jane and I discuss the matter with Prof. Stuart Benjamin, a leading scholar of federal communications law at Duke Law School.
So holds a Ninth Circuit panel, though reinforcing the Ninth Circuit's view that allegedly "derogatory and injurious remarks," including political speech, "directed at students' minority status" can be punished.
In March 2021, B.B., a first-grade student, drew a picture which included the words "Black Lives Mater [sic] any life" and gave it to M.C., an African American classmate. When M.C.'s mother raised concerns, the school principal, Jesus Becerra, spoke to B.B. and allegedly told her that the picture was inappropriate and racist, and that she was not allowed to give her drawings to classmates. B.B., through her mother, sued …, alleging that Becerra's actions punished B.B. and violated her First Amendment rights. The district court granted summary judgment for the defendants, stating that the drawing was not protected by the First Amendment….
This case presents an important issue: to what extent is elementary students' speech protected by the First Amendment? Applying the criteria set forth in Tinker v. Des Moines Independent Community School District (1969), we hold that elementary students' speech is protected by the First Amendment, the age of the students is a relevant factor under Tinker, and schools may restrict students' speech only when the restriction is reasonably necessary to protect the safety and well-being of its students. Because the Tinker analysis raises genuine issues of material fact, we vacate the grant of summary judgment and remand….
From last Wednesday's decision in X.AI LLC v. Bonta, by Judge Jesus Bernal (C.D. Cal.):
Assembly Bill 2013 …, entitled "Artificial Intelligence Training Data Transparency" requires developers of "a generative artificial intelligence system or service" that is "publicly available to Californians for use" to "post on the developer's internet website documentation regarding the data used by the developer to train the generative artificial intelligence system or service." The documentation must include "[a] high-level summary of the datasets used in the development of the generative artificial intelligence system or service" addressing, but not limited to, twelve enumerated topics. Those topics include:
(1) The sources or owners of the datasets.
(2) A description of how the datasets further the intended purpose of the artificial intelligence system or service.
(3) The number of data points included in the datasets, which may be in general ranges, and with estimated figures for dynamic datasets.
(4) A description of the types of data points within the datasets….
(5) Whether the datasets include any data protected by copyright, trademark, or patent, or whether the datasets are entirely in the public domain.
(6) Whether the datasets were purchased or licensed by the developer.
(7) Whether the datasets include personal information ….
(8) Whether the datasets include aggregate consumer information ….
(9) Whether there was any cleaning, processing, or other modification to the datasets by the developer, including the intended purpose of those efforts in relation to the artificial intelligence system or service.
(10) The time period during which the data in the datasets were collected, including a notice if the data collection is ongoing.
(11) The dates the datasets were first used during the development of the artificial intelligence system or service.
(12) Whether the generative artificial intelligence system or service used or continuously uses synthetic data generation in its development….
The court concluded that the law likely didn't violate the First Amendment. It first concluded that the law likely compelled speech only in the context of commercial speech:
On Monday evening, Justices Kavanaugh and Jackson appeared at a joint event at the D.C. Circuit. Several press outlets reported on what was described as a "polite but forceful back-and-forth" concerning the emergency docket. Here is the summary from the New York Times:
Justice Kavanaugh told those gathered that he thought the justices were being asked more frequently to weigh in on presidential actions because gridlock in Congress has led presidents to do more through executive orders, which have then been challenged in court. It is an argument he has made previously from the bench and in public appearances.
He added that such emergency requests are "not a new phenomenon" and had been on the rise during the Biden administration as well. He pointed to an emergency request by the Biden administration to keep in place access to a widely available abortion drug, mifepristone, as a lower court heard a challenge to the drug's approval.
Justice Jackson, however, pushed back and suggested the court's actions under Mr. Trump represented a departure.
Previously, she argued, the court had used emergency orders largely to maintain the status quo. Yet in the Trump administration, she said the court was signing off on new policies. In the mifepristone example, she said, the drug had already been in use for decades, and the Biden administration wanted to maintain access, not seek a new policy or change.
By agreeing to take on such emergency applications, she said the justices had signaled a willingness to hear the cases before they had worked their way through the lower courts, creating "a warped" kind of proceeding and "a real unfortunate problem."
"I think it is not serving the court or our country well at this point," Justice Jackson said, to applause from many in the audience.
Not quite. The Plaintiffs in Alliance for Hippocratic Medicine v. FDA challenged a series of actions concerning mifepristone between 2000 and 2021. The District Court found that all of those actions could be challenged within the statute of limitations. But the Fifth Circuit found that only actions taken in 2016 and 2021 were subject to challenge. So there was an Obama-era policy at issue, and another Biden-era policy. Let's quote from the summary of the facts from Justice Kavanaugh's majority opinion:
In 2021, FDA again relaxed the requirements for Mifeprex and generic mifepristone. Relying on experience gained during the COVID–19 pandemic about pregnant women using mifepristone without an in-person visit to a healthcare provider, FDA announced that it would no longer enforce the initial in-person visit requirement. . . . The Court of Appeals next concluded that plaintiffs were not likely to succeed on their challenge to FDA's 2000 approval of Mifeprex and 2019 approval of generic mifepristone. So the Court of Appeals vacated the District Court's order as to those agency actions. But the Court of Appeals agreed with the District Court that plaintiffs were likely to succeed in showing that FDA's 2016 and 2021 actions were unlawful.
Justice Jackson was partly mistaken. The Biden Administration enacted a new policy concerning mifepristone in 2021. It was challenged in 2022, which was within the statute of limitations. It is certainly true that a District Court did not enter a unappealable universal TRO, as has become the norm during the second Trump Administration. But who should we credit for exercising some restraint? Judge Matthew Kacsmaryk stayed his ruling to permit an orderly appeal to the Fifth Circuit.
The Court STAYS the applicability of this opinion and order for seven (7) days to allow the federal government time to seek emergency relief from the United States Court of Appeals for the Fifth Circuit.
All. for Hippocratic Med. v. U.S. Food & Drug Admin., 668 F. Supp. 3d 507, 560 (N.D. Tex.), aff'd in part, vacated in part, 78 F.4th 210 (5th Cir. 2023), rev'd and remanded sub nom. Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 144 S. Ct. 1540, 219 L. Ed. 2d 121 (2024), and vacated and remanded, 117 F.4th 336 (5th Cir. 2024).
As longtime readers might recall, it was common for District Court judges to stay their rulings against the Biden Administration. Alas, rulings against President Trump have not received similar courtesies requiring even more frantic trips to the Supreme Court.
The Fifth Circuit then granted a partial stay, and the Supreme Court, on the emergency docket, granted a complete stay of the Fifth Circuit's ruling.
Here, Justice Jackson's line (which apparently got applause) was partly mistaken.
Justice Kavanaugh continues his service as the leading Justice who defends the Court's work.
From U.S. v. Segari, decided today by Judge Kathryn Mizelle (M.D. Fla.):
In August 2025, Desiree Doreen Segari posted TikTok videos of herself announcing a "new movement," which she coined "see MAGA, shoot MAGA." In Segari's words, "if we all get our guns and use our second amendment right … and you see somebody with a MAGA hat, pew pew that's what we do, that's the way, it's the only way." Segari explained that "MAGA people deserve to be terrified and scared to walk in the streets because they should know that real Americans are gonna [mouths the word "fucking"] kill them." Based on these and similar statements in TikTok videos, a jury convicted Segari of transmitting in interstate commerce a true threat to injure another person….
In the first video, posted on August 17, 2025, Segari states that people wearing a MAGA hat should be shot:
Ok guys, so I would like to start a new movement called see MAGA [shoot] MAGA, because people like that respond to fear and terror and aggression not logic and empathy and I don't know, intelligence, it doesn't work for them so fear works so if we all get our guns and use our second amendment right and our common sense at this point this administration is begging us to rise up and revolt and you see somebody with a MAGA hat pew pew that's what we do, that's the way, it's the only way. Put them back in their basements, make them scared again to be racist, homophobic, and terrible just awful fucking pieces of shit because I would way rather live next to anyone other than MAGA people. MAGA people deserve to be terrified and scared to walk in the streets because they should know that real Americans are gonna [mouths the word "fucking"] kill them.
Segari balls her fist and points her index finger to mimic a firearm when saying, "see someone with a MAGA hat pew pew that's what we do."
The next day, Segari posted another video, continuing the same themes from the first:
Today, the Liberty Justice Center filed, Burlap and Barrel, Inc. v. Trump, a lawsuit challenging Donald Trump's massive new Section 122 tariffs. LJC is the same group that I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court last month. I am not one of the attorneys on this new case. But I completely support it and its objectives. This case is the second challenging the Section 122 tariffs, following one filed by 24 state governments, last week.
The LJC complaint is available here. Here is an excerpt from LJC's description of the new case:
On March 9, 2026, the Liberty Justice Center filed a lawsuit in the U.S. Court of International Trade challenging President Trump's attempt to reimpose broad global tariffs under Section 122 of the Trade Act of 1974, following the Supreme Court's landmark decision striking down the prior tariff regime imposed under the International Emergency Economic Powers Act (IEEPA).
After the Supreme Court held that the IEEPA does not authorize the President to impose tariffs, the administration announced a new plan: a global tariff beginning at 10 percent imposed under Section 122, and justified as a response to alleged "fundamental international payments problems" and "large and serious United States balance‑of‑payments deficits."
But the United States is not facing such a crisis. Section 122 was designed to address short‑term, balance‑of‑payments emergencies in a fixed‑exchange‑rate world—not to impose sweeping tariffs on nearly all imports based on long-standing trade deficits.
More fundamentally, the Constitution gives Congress—not the President—the power to impose tariffs and taxes. The Supreme Court reemphasized this principle in the case that included V.O.S. Selections, Inc. v. Trump, holding that the President cannot rely on broad statutory language to claim sweeping tariff authority that Congress never clearly granted.
By attempting to stretch Section 122 into a catch‑all tariff power, the administration is once again bypassing Congress and placing the burden of unlawful tariffs on American small businesses and consumers.
LJC's clients here are businesses that import goods subject to the new tariffs, and therefore undeniably have standing to challenge them.
In a recent Boston Globe article, I explained why the enormous Section 122 tariffs are illegal. In addition to going beyond the statutory text, they also run afoul of the "major questions" doctrine, and nondelegation limits on Congress' power to delegate its authority to the executive:
The three conservative justices in the majority in [the IEEPA] decision cited…. the "major questions doctrine," which requires Congress to "speak clearly" when authorizing the executive branch to make "decisions of vast economic and political significance."
They concluded that IEEPA did not clearly grant the president sweeping tariff authority. But the same is true of Section 122. At the very least, it is far from clear that it authorizes the president to impose 15 percent tariffs on goods from virtually every nation in the world, in a situation vastly different from that which inspired the law. And the effects of Trump's Section 122 tariffs would be large enough to qualify as a "major question." Within 150 days, the tariffs would impose some $30 billion in taxes on American businesses and inflict serious damage on the economy by raising prices and disrupting production in industries that depend on imports…..
Justice Neil Gorsuch's concurring opinion in the IEEPA case also relied on the nondelegation doctrine, which limits the extent to which Congress can delegate its authority to executive discretion. The limits of delegation are far from clear. But the Supreme Court held last year that a delegation of authority to impose taxes or fees must have a "floor" and a "ceiling" and that the degree of "guidance" required from Congress is greater "when an agency action will 'affect the entire national economy' than when it addresses a narrow, technical issue." The power to impose 15 percent tariffs — the highest tariffs since the disastrous Smoot-Hawley tariffs that exacerbated the Great Depression — is unquestionably one that affects the "entire national economy." And Trump's permissive interpretation of the law would let him impose those rates at almost any time.
Section 122 does limit tariff rates to 15 percent, creating a ceiling. But in that same ruling last year, the court emphasized that even a fixed numerical ceiling is not constraining enough if it leaves the executive with what amounts to "boundless power." The power to start a Great Depression-like trade war at will surely qualifies as such.
The LJC complaint raises the major questions and nondelegation issues more clearly and fully than that filed by the states. I am glad to see these issues will be considered.
A YouTuber must face claims that he groomed and assaulted two underage fans, a federal judge ruled on Wednesday.
James Jackson, known online by the name "Onision," and his spouse Lucas Jackson, known online as "Laineybot" or "Kai," did not convince a federal judge to dismiss claims brought by former fans who accused the couple of violating sex trafficking and minor abuse laws by enticing them across state lines and coercing them into commercial sex acts.
Regina Alonso and a plaintiff identified under the pseudonym Sarah sued the YouTubers in 2023, accusing the two of using their YouTube page to solicit explicit photos from them while they were underage and sexually assaulting Sarah while she was a minor.
Now, Friday's decision in Alonso v. Jackson by Judge John Chun (W.D. Wash.) about the sealing / pseudonymity questions:
Plaintiffs bring various claims against Defendants James and Lucas Jackson relating to alleged grooming and sex trafficking when Plaintiffs were minors.
Defendants move for an order … redacting and sealing "all past and future personal identifying information (PII)" appearing on the docket and accessible via PACER, including their home address, phone number, email addresses, last names, and household details" … [and] permitting them to proceed pseudonymously by using only their first names ….
