8/28/1958: Cooper v. Aaron is argued.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
What’s on your mind?
Prosecution for Forging Court Order, Purportedly from Chief Justice Roberts
Bloomberg News (Jordan Fischer) seems to have broken the story. Culver is also accused of impersonating an NSA agent, a Supreme Court Special Master, and "the Director of Tailored Access Operations ('TAO'), a purported intelligence agency."
No Anti-Stalking Order Against Rabbi Based on His Actions Opposing Anti-Israel Protest
From the long opinion in Rokhvand v. Herzfeld, decided by D.C. Court of Appeals Judge Roy McLeese, joined by Judges Corinne Beckwith and John Howard:
This case arises from three incidents that occurred on three separate days in March and May of 2024 during demonstrations in front of the Israeli embassy….
Ms. Rokhvand and Ms. Barmada were engaged in a multi-month demonstration in front of the Israeli Embassy in Washington, D.C. in protest of Israel's recent military actions in Gaza…. The protesters used a designated area outside the embassy to set up their display of flags, tents, and signs and to engage in "noise demonstrations," during which they spoke into megaphones, played Palestinian music, or used noise machines. They displayed large signs with messages against Israel's military actions in Gaza, as well as a sign offering earplugs to passersby, along the sidewalk.
Rabbi Herzfeld is the rabbi of a Washington, D.C. congregation and the founder and leader of a Jewish school. During his tenure in D.C., Rabbi Herzfeld has been involved in the wider community and worked with other local faith leaders and elected officials. Rabbi Herzfeld has close relationships with family and friends in Israel and was "devastat[ed]" by the October 7, 2023, Hamas attack on Israel. Rabbi Herzfeld did not know of Ms. Barmada or Ms. Rokhvand before his interactions with them at the Israeli embassy. Likewise, neither Ms. Barmada nor Ms. Rokhvand had heard of or met Rabbi Herzfeld before their interactions with him during the embassy demonstrations.
The first incident occurred in the middle of the day while Ms. Barmada and a few other protesters, not including Ms. Rokhvand, were at the protest site. According to Ms. Barmada, a group of men including Rabbi Herzfeld approached the protest site and began slowly walking through the demonstration and "intensely … looking around." Ms. Barmada heard Rabbi Herzfeld call her a "Hamas supporter" and a "terrorist" who supported "raping women" and "beheading babies." Another man in the group called Ms. Barmada a "Nazi bitch" and said that she should "go to the concentration camp."
Rabbi Herzfeld began speaking about the protesters, pointing at Ms. Barmada and referring to the protesters as the "wicked people" that "we will defeat." The group of men again approached the protesters and walked back and forth in front of them, during which time Ms. Barmada and Rabbi Herzfeld exchanged a couple of remarks and Rabbi Herzfeld took something out of his pocket and stood near Ms. Barmada with his group. Ms. Barmada perceived the interaction to be a threat designed to "intimidate" her. She felt "scared" and "harassed" and that the incident was "violating."
Court Rejects Harassment Lawsuit Over Anti-Israel Speech at CUNY, Largely on First Amendment Grounds
In Goldstein v. CUNY, a Jewish Israeli professor at the Borough of Manhattan Community College—part of the City University of New York system—sued for discrimination and harassment over various actions (which started in Mach 2023) at BMCC that stemmed from the Israeli-Palestinian conflict. Today, Judge Jeannette Vargas (S.D.N.Y.) rejected Goldstein's claim; the opinion is long, and to keep the excerpt manageable I will exclude the long statement of facts, and rely on the judge's account of the facts within the analysis:
Plaintiff's claims under Title VII, the NYSHRL, the NYCHRL, and Section 1983 are largely premised upon expressions of political speech regarding Israel, Zionism, and the Palestinian conflict that the [Complaint] characterizes as antisemitic. This raises a preliminary question as to what extent such expressive conduct, no matter how personally offensive or hateful to individuals based upon a protected characteristic, can be actionable as workplace discrimination or harassment under federal or state antidiscrimination laws.
Title VII prohibits "harassment so severe or pervasive as 'to alter the conditions of the victim's employment and create an abusive working environment.'" Abusive and offensive speech, no less than abusive conduct, can undoubtedly cause a multitude of psychic harms that would render a workplace hostile.
Antidiscrimination laws do not create a categorical "'harassment exception' to the First Amendment's free speech clause," however. "[T]he Supreme Court has consistently held that expression motivated by bias, hatred, or bigotry falls within the First Amendment's protection." "[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Accordingly, while there is "no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause," it is equally clear that "[w]here pure expression is involved, anti-discrimination law steers into the territory of the First Amendment."
Pro-Palestinian Poster's "Doxing" Claim, Stemming from Her Firing as a Result of Public Criticism, Rejected
Some excerpts from Judge Jacqueline Becerra (S.D. Fla.) today in Khorashi v. Beer; the analysis strikes me as correct:
This is a state-law tort action arising out of an online "doxing" incident that preceded Plaintiff's termination from her prior employer, Chartwell Law Offices LLP ("Chartwell"). Defendant Gadi Beer helped launch Chartwell in 2002 and served in senior leadership roles before leaving the firm in early 2023. Plaintiff alleges, upon information and belief, that he retained an equity interest in the firm and remained in regular contact with its founding partners. Defendant Beth Beer, Gadi Beer's wife, is a licensed attorney who served as a Regional Director in the U.S. Department of Education's Office for Civil Rights during the relevant period.
Plaintiff, a Muslim woman of Pakistani origin, was employed as an associate attorney in Chartwell's Miami office from 2018 until her termination on February 29, 2024. Throughout her employment, Plaintiff maintained a public Instagram account, "thatlawyermomlife," using her real name and the same profile picture that appeared on Chartwell's website, but her Instagram page did not include any reference to Chartwell or her place of employment.
After the October 7, 2023 attack on Israel, Plaintiff began posting prolifically in support of the Palestinian cause. She alleges she was "well-aware" that her posts "could be misconstrued by some people as antisemitism" and therefore consciously avoided negative references to Jews or Judaism, directing her criticism instead at Israel's government, the IDF, and Zionism. Her account was known to coworkers, some of whom followed and engaged with her content.
Beginning in late November 2023, Plaintiff alleges that an account using the handle "Beth Margot" attacked nearly every one of her posts about Gaza. The comments became "increasingly obsessive, vile and hateful," so Plaintiff blocked the account. Plaintiff later determined that "Beth Margot" was a pseudonym used by Defendant Beth Beer.
Official Precedent from a Supreme Court Justice's Opinion: We Jews Are "a Highly Intellectual Race"
Just came across this in Justice Stephen Field's opinion as Circuit Justice in Ho Ah Kow v. Nunan (C.C.D. Cal. 1879):
We have, for instance, in our community a large number of Jews. They are a highly intellectual race, and are generally obedient to the laws of the country.
Thank you, Justice! (Recall that this was a time when "race" was used to include what we would today call an "ethnic group," such as Norwegians, Italians, and the like.) Meantime, the broader context of the case, which isn't about us at all (not everything is about us):
The plaintiff is a subject of the emperor of China, and the present action is brought to recover damages for his alleged maltreatment by the defendant, a citizen of the state of California and the sheriff of the city and county of San Francisco. The maltreatment consisted in having wantonly and maliciously cut off the queue of the plaintiff, a queue being worn by all Chinamen, and its deprivation being regarded by them as degrading and as entailing future suffering.
It appears that in April, 1876, the legislature of California passed an act 'concerning lodging-houses and sleeping apartments within the limits of incorporated cities,' declaring, among other things, that any person found sleeping or lodging in a room or an apartment containing less than five hundred cubic feet of space in the clear for each person occupying it, should be deemed guilty of a misdemeanor, and on conviction thereof be punished by a fine of not less than ten or more than fifty dollars, or imprisonment in the county jail, or by both such fine and imprisonment. Under this act the plaintiff, in April, 1878, was convicted and sentenced to pay a fine of ten dollars, or in default of such payment to be imprisoned five days in the county jail. Failing to pay the fine, he was imprisoned.
The defendant, as sheriff of the city and county, had charge of the jail, and during the imprisonment of the plaintiff cut off his queue, as alleged. The complaint avers that it is the custom of Chinamen to shave the hair from the front of the head and to wear the remainder of it braided into a queue; that the deprivation of the queue is regarded by them as a mark of disgrace, and is attended, according to their religious faith, with misfortune and suffering after death; that the defendant knew of this custom and religious faith of the Chinese, and knew also that the plaintiff venerated the custom and held the faith; yet, in disregard of his rights, inflicted the injury complained of; and that the plaintiff has, in consequence of it, suffered great mental anguish, been disgraced in the eyes of his friends and relatives, and ostracised from association with his countrymen; and that hence he has been damaged to the amount of ten thousand dollars….
Home Possession of AI-Generated Porn Depicting Fake Children Remains Constitutionally Protected, Seventh Circuit Rules
From U.S. v. Anderegg, decided Tuesday by Seventh Circuit Judge John Lee, joined by Judges Doris Pryor and Joshua Kolar:
Steven Anderegg is charged with producing, distributing, and possessing visual depictions of minors engaged in sexually explicit conduct and transferring such material to a minor under the age of sixteen. According to the government, Anderegg produced these images using Stable Diffusion, a generative artificial intelligence ("GenAI") software that allowed him to create hyper-realistic images of prepubescent children engaging in sexually explicit acts.
The appeal in this case deals only with Anderegg's challenge to the home possession charge, not to the production or distribution charge. Here's the court's analysis:
Obscenity, along with certain other categories of speech, has historically fallen "outside the scope of the First Amendment." And, although the precise meaning of "obscenity" is difficult to pin down, the Supreme Court has offered the following articulation: "[S]peech is obscene to the public at large—and thus proscribable—if (a) 'the average person, applying contemporary community standards[,] would find that the work, taken as a whole, appeals to the prurient interest'; (b) 'the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law'; and (c) 'the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'" Miller v. California (1973).
At the same time, "[t]he Constitution extends special safeguards to the privacy of the home." The Supreme Court addressed the clash of these two principles—the government's interest in proscribing obscenity and an individual's privacy in one's home—in Stanley v. Georgia (1969)…. Acknowledging that the government retains "broad power to regulate obscenity," the Supreme Court held that the State's "power simply does not extend to mere possession by the individual in the privacy of his own home." "If the First Amendment means anything," the Court explained, "it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." …
Israeli-American Emory Professor's Civil Rights Conspiracy Claim Against CAIR Georgia and Emory Student Can Go Forward (in Part)
From yesterday's decision by Judge Thomas Thrash (N.D. Ga.) in Winer v. Mohammad:
This action arises out of alleged defamatory statements that Defendant Umaymah Mohammad, a student at the Emory University School of Medicine, made about Plaintiff Joshua Winer, a physician and professor at Emory….
Mohammad wrote about Winer that, among other things,
one of the professors of medicine we have at Emory [apparently referring to Winer -EV] recently went to serve as a volunteer medic in the Israeli Offense Force [sic] and recently came back. This man participated in aiding and abetting a genocide, in aiding and abetting the destruction of the healthcare system in Gaza and the murder of over 400 healthcare workers, and is now back at Emory so-called teaching medical students and residents how to take care of patients.
She and CAIR Georgia and CAIR Foundation, plaintiff alleged, used this and similar statements to "call[] for Emory to investigate him and/or terminate his employment."
Plaintiff sued for defamation; see this post for more details on that claim, which the court allowed to go forward in part. But the court also allowed plaintiff's federal civil rights conspiracy claim to go forward, as to the claim that defendants conspired to violate his rights under Title VI:
To state a claim under § 1985(3), a plaintiff must establish that the defendant has
(1) conspired … (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) taken or caused an action to be taken in furtherance of the conspiracy's object, and (4) injured an individual's person or property or deprived her of exercising any right or privilege of a United States citizen….
Israeli-American Emory Professor's Defamation Case Against CAIR Georgia and Emory Student Can Go Forward (in Part)
Some excerpts from the opinion yesterday by Judge Thomas Thrash (N.D. Ga.) in Winer v. Mohammad:
This action arises out of alleged defamatory statements that Defendant Umaymah Mohammad, a student at the Emory University School of Medicine, made about Plaintiff Joshua Winer, a physician and professor at Emory. Mohammad, who is Palestinian, sent an email to the entire School of Medicine student and faculty body on January 17, 2024, in which the Plaintiff alleges she "praised terrorism against Israel, expressed her hatred towards Israel and the United States, and stated that Israel, the United States, and Emory are perpetrating a genocide against Palestinians in Gaza."
Nearly two months later, in March 2024, the Plaintiff published an op-ed piece in an Israeli news publication sharing his decision to travel to Israel to volunteer as a physician in the Israeli Defense Force ("IDF") following the October 7th Hamas attack on Israel. The Plaintiff identifies as Jewish and maintains dual American and Israeli citizenship. He is a surgical oncologist at Emory Winship Cancer Institute, a professor in the Department of Surgery, Division of Surgical Oncology at the School of Medicine, and serves as the School of Medicine Surgical Clerkship Director.
In April 2024, Mohammad participated in an interview for a news organization called Democracy Now!. In the interview, Mohammad was asked about the email she sent and was asked to explain the importance of the issue to her. As part of her response, Mohammad referenced Winer by stating that
one of the professors of medicine we have at Emory recently went to serve as a volunteer medic in the Israeli Offense Force [sic] and recently came back. This man participated in aiding and abetting a genocide, in aiding and abetting the destruction of the healthcare system in Gaza and the murder of over 400 healthcare workers, and is now back at Emory so-called teaching medical students and residents how to take care of patients.
Mohammad was ultimately suspended from the School of Medicine for one year based on her comments in the Democracy Now! interview. In November 2024, Mohammad participated in a podcast hosted by the International Union of Scientists in which she made similar statements about the Plaintiff.
Today in Supreme Court History: August 27, 1948
8/27/1948: Chief Justice Charles Evans Hughes dies.
Open Thread
What’s on your mind?
High School's Ordering Parents to Remove Pink "XX" Protest Wristbands at Girls' Soccer Game Likely Violated First Amendment
"The characteristics of the school as a place of learning reinforce that administrators cannot favor one side of a debate involving parental speech on an issue of prominent public concern, and which, in those parents' views, concerned the safety of their children."
Some excerpts from the longish opinion today in Fellers v. Kelley, written by First Circuit Judge Sandra Lynch, joined by Judge Jeffrey and Howard:
On September 17, 2024, [plaintiffs] were instructed by Bow High School officials to remove pink "XX" wristbands they wore in protest while watching their daughters (in [one plaintiff's] case, granddaughter) play in a girls' soccer game against a team with one transgender athlete. Further sanctions followed…. [W]e conclude that appellants have established a likelihood of success as to their viewpoint discrimination claim arising from the sanctions imposed on them for their passive speech in wearing these wristbands….
Prosecution of Congresswoman for Assaulting and Impeding Federal Officials at ICE Delaney Hall Detention Facility Can Continue
Some excerpts from the long opinion in U.S. v. McIver, written by Third Circuit Judge Cindy Chung and joined by Judges Stephanos Bibas:
Congresswoman McIver represents New Jersey's 10th Congressional District in the United States House of Representatives and serves on the Committee on Homeland Security. On May 9, 2025, Congresswoman McIver and two other Representatives conducted an unannounced congressional oversight inspection of Delaney Hall Federal Immigration Facility, pursuant to statutory authority…. Upon arrival, Congresswoman McIver and the other Representatives entered through the security gate into the secured exterior area of the facility. They proceeded inside Delaney Hall and waited for over an hour in the facility's administrative office.
During that time, Newark Mayor Ras Baraka and his security detail arrived at Delaney Hall and they were allowed through the security gate into the secure exterior premises of the facility. Meanwhile, dozens of protestors and media members had amassed outside the security gate.
{We draw these facts from the Indictment, from evidence in the record, and as set forth by the District Court in its opinions. We accept as true the facts alleged in the Indictment for purposes of considering a motion to dismiss. Neither party challenges the facts as set forth by the District Court.}
The Homeland Security Investigations ("HSI") Special Agent in Charge in New Jersey (referred to in the Indictment and by the District Court as "Victim-1" or "V-1") approached the Mayor inside the security gate and advised him that he was not allowed on the premises, ordered him to leave, and told him he would be arrested if he did not comply. At that time, Congresswoman McIver and the two other Representatives left the administrative office and walked toward the security gate, where the Mayor was speaking with Victim-1. Victim-1 directed the Mayor and his security detail outside of the Security Gate to the unsecured area outside the facility, and Congresswoman McIver and the two Representatives began to walk back towards the administrative office.
Moments later, Victim-1 informed a group of federal agents that the United States Deputy Attorney General had authorized the Mayor's arrest, and the agents exited the secured premises and approached the Mayor and his security detail. Upon observing this, the Congressional delegation also proceeded into the unsecured area. An unidentified member of the crowd yelled, "circle the Mayor," and some protesters, as well as Congresswoman McIver and the two Representatives, encircled the Mayor as Victim-1 and the other agents pushed their way through the crowd to apprehend him.
Video surveillance shows Congresswoman McIver placing herself between the Mayor and Victim-1. The Indictment states that Congresswoman McIver then "slammed her forearm into the body of V-1" and "reached out and tried to restrain V-1 by forcibly grabbing him."
Court Upholds N.Y. Law Mandating Platforms Post Terms of Service and Report How Content Moderation Policies Have Been Enforced
From Judge John Cronan (S.D.N.Y.) today in X Corp. v. James:
Businesses might not always want to share every detail about the products or services they offer. But when the government requires those businesses to speak truthfully about their offerings, the First Amendment typically allows for that kind of disclosure requirement. "Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the 'marketplace of ideas.'"
That principle resolves this case. The State of New York requires social-media companies to disclose certain aspects of their content-moderation policies. X Corp. wants to share less of its policies than New York requires, so it invokes the First Amendment to avoid New York's requirement. But the First Amendment poses no obstacle to New York's law. Here, more speech—like sunlight—is "the best of disinfectants." …
What Is "Reasonable" Gun Control?
According to the Gun Control Lobbies, Everything, Including Prohibition
Starting with legislation signed by New York then-Governor Andrew Cuomo in 2022, eleven states have enacted "Firearms Industry Responsibility Acts." The statutes subject firearms retailers and manufacturers to tort lawsuits for any action that is not "reasonable." The National Shooting Sports Foundation, the trade association for the firearms industry, filed a facial challenge, arguing that the statute was void for vagueness. The Second Circuit disagreed, pointing out that "reasonable" is used as a legal standard in many contexts. National Shooting Sports Foundation v. James, 144 F.4th 98 (2d Cir. 2025). But what does "reasonable" mean in the new liability acts?
A grocery store knows that its reasonable duty of care to invitees includes promptly cleaning up spills so that customers do not slip and fall. The grocery store's reasonable duty does not include monitoring the weight of its customers and barring obese customers from buying high-calorie low-nutrition foods. The plaintiffs' tort lawyers who have, in a sense, helped shape and define grocery stores' reasonable duties are not morally opposed to grocery stores. They are not working towards a society in which there is no private ownership of food. They do not aim for a world in which the only food is what the government chooses to provide and in which the only way to eat is to line up at a government mess hall — such as in Cuba, or in China during the Great Leap Forward of 1958–62.
Contrast grocery store litigation with firearms litigation. On the latter, many advocates do seek the eradication the entire line of businesses. In the words of Mrs. Gabrielle Giffords, leader of the eponymous lobby: "No More Guns. Gone." Philip Elliott, No More Guns. Gone': Why Gabby Giffords Isn't Giving Up, Time, Apr. 26, 2023.
As used by the gun control lobbies that created and pushed for the "industry responsibility" statutes, what does "reasonable" mean?
That is the question addressed in a new Working Paper from the University of Wyoming's Firearms Research Center. (I am a Senior Fellow at the Center.) Del Schlangen, who is a recent graduate of Denver University's Sturm College of Law, and was my intern this subject, investigated how gun control groups use thee word "reasonable." His results were published this week in his monograph Use of 'Reasonable' in Gun Control Advocacy (Firearms Rsch. Ctr., Working Paper No. 2026-8).
He finds that "reasonable" as defined by gun control groups is simply their word of approval of all the restrictions and prohibitions they favor. Schlangen's 58-page monograph begins with a three pages of summary, and then provides a representative catalogue of 170 written uses of "reasonable" by gun control advocates. He concludes:
The very advocates who assure courts that the industry duty is "well understood" (A80) or known (A81), and who assure the public that "reasonable controls" gives the industry "clear guidance" (A113) have, for nearly half a century, used "reasonable" to include banning all handguns, banning most modern rifles, banning the majority of magazines, and banning the carrying of any arm for self-defense. All lesser types of gun control are also declared to be "reasonable." Because "reasonable" means whatever the gun control lobbies desire at the moment, the word does not provide a fixed and ascertainable standard in the gun control context.
Suspension of Couple's Gun Rights Because Their College Student Daughter Drew Allegedly Threatening Images Violated Second Amendment
A police investigation had "verified that Plaintiffs' weapons were secured in a safe and that their daughter did not have access to them."
Some short excerpts from the long Ganz v. Nassau County, decided Monday by Magistrate Judge James Wicks (E.D.N.Y.):
The Plaintiffs are residents of Nassau County, New York and have held New York State pistol licenses since 2020. The licenses were issued to Plaintiffs by the NCPD PLS [Pistol License Section]….
In February of 2024, the Plaintiffs' daughter, who was enrolled in the SUNY Old Westbury College …, was admitted to a Massachusetts hospital for mental health treatment. In September 2024, a patient at the Massachusetts hospital contacted the SUNY school to report that Plaintiffs' daughter had drawn threatening images. Plaintiffs' daughter was then transported by the NCPD to Nassau University Medical Center. Plaintiffs' daughter informed the police that the picture was not depicting any type of shooting or threat.
The SUNY college and its police force, after having been informed of the accusation, handled the school-threat investigation. However, NCPD officers responded to Plaintiffs' home to ascertain the daughter's condition….
Plaintiffs came to [Nassau County Police Investigator] Cafarella's attention on September 18, 2024, after beginning his review of a police incident report concerning the Plaintiffs' daughter. This was a result of Nassau County being notified by SUNY Old Westbury Administration that Plaintiffs' daughter was accused of drawing disturbing pictures of mass shootings….
"A Lawsuit Showing up in Future Educational or Employment Screenings" "Is Not an Adequate Justification for Proceeding Anonymously"
From Judge Robert Chambers (S.D. W. Va.) Friday in Roe v. Gozal; plaintiffs are suing a medical school dean for allegedly retaliating against them as MD/PhD students because of his conflict with their father, who had been a rival candidate for dean:
Federal courts disfavor pseudonymous litigation. Such litigation "'undermines the public's right of access to judicial proceedings' because 'the public has an interest in knowing the names of litigants, and disclosing the parties' identities furthers openness of judicial proceedings.'" "Nevertheless, district courts may, in their discretion, allow pseudonymous litigation because 'privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation.'" …
[T]he types of personal intimate information justifying anonymity for litigating parties have typically involved such intimate personal matters as birth control, abortion, homosexuality, or the welfare rights of illegitimate children or abandoned families." The subject of Plaintiff's suit—Defendant David Gozal's alleged retaliation against Plaintiffs—is not nearly as sensitive….
The Court finds that Plaintiffs have a credible fear of retaliation. A letter they attached to their Reply supports their claim that Mr. Gozal retaliates against critics and whistleblowers through his control of Marshall faculty. [The letter appears to be from physician assistant students at the medical school. -EV]
