Open Thread
What’s on your mind?
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
What’s on your mind?
Building on a meme started by Bryan Caplan and Richard Hanania.
Prominent economist Bryan Caplan and political commentator Richard Hanania have started a "Sixteen Fun Facts About Me" meme on their respective blogs/substacks. Here is my list (in rough chronological order):
1. I was born in the then-Soviet Union. As an infant and toddler, I spent a lot of time in the hospital, due to various ailments. One time, a nurse asked my mother if I was her only child. She said yes. "That's unfortunate," the nurse commented, with typically awful Soviet bedside manner, "because this one probably won't live." Fortunately, the nurse turned out to be wrong, and I survived.
2. I didn't learn how to read in either English or Russian until the age of eight - a consequence of lack of motivation and possible undiagnosed dyslexia. But when I finally did learn, I almost immediately started reading adult books, rather than those meant for kids. My daughter Lydia - probably the family member most like me - didn't learn to read until the age of nine. A consequence of dyslexia which did get diagnosed. We spent many hours memorizing sight words with her to overcome it. When Lydia did finally learn, the first book she read on her own was the classic science fiction novel Ender's Game, which is intended for adults.
3. I grew up in the Boston area and have been a big Boston sports fan since I was about nine. The first team I followed closely was the 1982-83 Boston Bruins, who had the best record in the NHL, but lost in the conference finals in the playoffs (I'm still mad about that). My favorite player was Rick "Nifty" Middleton, the Bruins' leading goalscorer. In retrospect, the best player on the team was actually Ray Bourque, who went on to become one of the two or three best defensemen ever, and arguably the second-greatest Bruin after Bobby Orr.
4. In middle school and high school, I often worked as a babysitter. I wish I could say I did it to break down gender stereotypes (most babysitters are female, which was even more true back then). But the real reason was that I found babysitting less onerous and unpleasant than mowing lawns, and other yard work. A five-year-old I sat for once told me that he obeyed me far more than his parents. I asked why that is. "Because," he said, "when you tell me to do something, I know you really mean it." When I became a parent myself, many years later, I came to understand why it's hard to "really mean it" when disciplining your own kids.
5. My first official on-the-books job was working at the Lexington, MA public library when I was 15. I had the impressive-sounding title of "Assistant Librarian." But the actual work was stacking and reshelving books. Much of the time, I could not resist the temptation to read the books, instead of stacking them. My supervisor eventually got tired of this, and told me I had to either quit or be fired. I resigned to spend more time with my family.
6. My most significant extracurricular activity in high school was the debate team. One time, when we were preparing for a tournament, we decided should call Harvard philosophy Prof. John Rawls (who lived in Lexington) for advice on an argument we were developing. My teammate Anjan Mukherjee (who later went on to become a prominent financier) said I should be the one to call Rawls. "You should talk to him," he said, "because you guys have a lot in common." The idea that a world-famous political philosopher had anything in common with an obscure high school sophomore seemed totally ridiculous. But I called Rawls anyway, and he generously spent half an hour on the phone answering my questions. We didn't learn anything that was useful for the tournament (Rawls said he hadn't thought about our issue). But the story became a minor debate-world legend. I recounted it in a bit more detail in my 2010 immigration memoir (pp. 25-26).
7. I became a libertarian later that same year, after I read Robert Nozick's Anarchy, State, and Utopia (Nozick was Rawls' great critic and rival). In contrast to most young libertarians of my generation and the one before, I was never much influenced by Ayn Rand, though I respect her achievements in becoming one of the greatest-ever popularizers of libertarian ideas (which is not at all how she saw herself!).
8. The first girl I ever fell in love with was a high school debate opponent. My cause was pretty much doomed from the start, in part because she was two years older (a big difference at that age). But we kept in touch in later years.
9. In different life circumstances (especially if born in the US rather than the Soviet Union), I can see myself potentially becoming a left-liberal or (less likely) even a socialist. But I think I could never have been a social conservative or a nationalist. I'm too skeptical of authority and tradition to be a social conservative. And the illogical and anti-intellectual nature of most nationalist ideology is totally inimical to me. I hate both socialism and nationalism, and recognize that the former has the higher body count of victims, including the single biggest mass murder in the entire history of the world. But the hostility to nationalism is more intuitive and visceral. Not coincidentally, my favorite among my many nonacademic publications is probably "The Case Against Nationalism" (coauthored with Alex Nowrasteh).
10. The summer after my freshman year at Amherst College, I worked as an intern at the Cato Institute. They assigned me to be a research assistant for legendary economist Julian Simon, famous for being the author of The Ultimate Resource. Simon's brilliance was incredible. But the job went badly, in part because he wasn't always clear about what he wanted, and I didn't try hard enough to figure it out; plenty of blame to go around! In later years, I made sure to be more clear with my own RAs. Cato generously overlooked this rocky start to our relationship. They made me an adjunct scholar in 2008, and eventually their B. Kenneth Simon Chair in Constitutional Studies in 2022 (in addition to my primary job as a law professor at George Mason University).
11. If I liked math and was good at it, I might well have become an economist. But, sadly, I'm pretty bad at it, and I really hate doing it. Thus, I went to political science graduate school at Harvard. Eventually, I decided to do a joint degree with Yale Law School, with a view to potentially becoming a law professor. I chose that path because 1) the law professor job market seemed a bit less competitive than that in political science and 2) the male-female ratio in poli sci grad school was heavily skewed towards the former, and I thought I would have a better chance of finding a girlfriend in law school. When students ask me about my career choices, I emphasize that 2 was not really a good criterion for choosing a graduate program! If necessary, find dates outside of school.
12. The summer after my first year in law school, I worked as a student law clerk at the Institute for Justice, a major public interest law firm. One of the cases I worked on was CRDA v. Banin, in which Donald Trump had influenced Atlantic City to use eminent domain to take an elderly woman's house so that he could build a parking lot for one of his casinoes on the site. The court eventually invalidated the taking because it was not for a "public use," as required by the state constitution. This experience helped stimulate an interest in constitutional property rights, which later became a major focus of my research agenda as an academic.
13. In the fall of 1998, I interviewed for summer associate positions at various New York and Washington, DC law firms. One of the interviewers who came to Yale that year was future Supreme Court Justice Brett Kavanaugh. He recommended that his firm invite me for a "call back" interview at their offices in DC. But, afterwards, I didn't get the summer associate offer. Usually, students who got a call back interview were almost guaranteed to get summer associate positions. I e-mailed Kavanaugh to ask what went wrong. He said he wanted to hire me, but partners at the firm said "no" because they thought I was too likely to leave the firm to become an academic. The partners weren't wrong!
14. I met my future wife, Alison, at an Institute for Humane Studies event in 2008 (we both previously won IHS fellowships). My wooing was aided by the fact that she was a regular reader of the Volokh Conspiracy blog, and already knew who I was. Her favorite among my blog posts was "The Case for Paying Dead Farmers Not to Farm Instead of Living Ones." I still oppose farm subsidies, especially the kind that seek to reduce output rather than increase it. But supporters can argue they help bloggers find spouses, and thereby increase the birth rate!
15. I am a longtime science fiction and fantasy fan, and have a long list of publications and blog posts on various issues related to the politics of those genres. This hasn't done much to advance my academic career. But it did once get me a speaking invitation to go to Australia! This year, I'm going to be the presenter/keynote speaker at the Libertarian Futurist Society's annual Prometheus Award ceremony.
16. After becoming a career academic, I did not expect to ever do any significant litigation. As the saying goes, those who cannot do, teach! But the litigation that led to the invalidation of Trump's massive IEEPA tariffs originated in a blog post I wrote in February 2025. Jeff Schwab of the Liberty Justice Center contacted me about it, and we eventually agreed I would work with them on a case pursuing the ideas I laid out. I then did a follow-up post seeking clients. One of my former students read the post, and showed it to his uncle, Victor Schwartz, a wine importer whose business was gravely damaged by the tariffs. Victor's firm, V.O.S. Selections became our lead plaintiff in the case. After almost a year of litigation and two lower court wins the Supreme Court ruled in our favor. We were eventually joined by prominent Supreme Court litigators Michael McConnell and Neal Katyal, and it was Katyal who did the oral argument before the Supreme Court. But the blog post got things started.
From D.C. Circuit Judges Patricia Millett, Robert Wilkins, and Gregory Katsas today in Beatty v. Trump:
On May 29, 2026, the district court ordered, among other things, (1) the removal of President Trump's name from the façade of the John F. Kennedy Center for the Performing Arts and all other similar physical signage, (2) the deletion of his name as part of the title of the Center on the official website, and (3) the withdrawal of any trademark applications that included President Trump's name as part of the Kennedy Center's appellation. The court further ordered those changes to be made by June 12, 2026.
At 3:46 p.m. on June 12, 2026—late afternoon on the compliance date— Appellants filed a motion for a stay pending appeal …. [But Appellants] have failed to show how they will be irreparably injured absent a stay…. "[A] showing of irreparable harm is a necessary prerequisite for a stay" ….
First, they argue that removal of President Trump's name will inflict irreparable harm in terms of expense and time "squander[ed][.]" Since that removal has already occurred, a stay would not avert those harms (even assuming they would qualify as irreparable).
Second, Appellants allege financial harm to the Kennedy Center if they are not permitted to reinstate President Trump's name. They argue that removal of President Trump's name "threatens to impede the Center's fundraising efforts and [will] contribute to the financial decline of the Center."
Three different VC bloggers were among the speakers: Jonathan Adler, Keith Whittington, and myself.

Yesterday, the National Constitution Center held a conference on the 2025-26 Supreme Court term and the many important cases decided therein. The video of the event is now available and I embed it below. Each of the three panels featured a VC blogger: Keith Whittington on the first panel about key cases, myself on the second one about executive power, and Jonathan Adler on the third, focused on civil discourse. Thus, this is a must-watch event for all loyal VC readers!
My panel runs from about 48:00 to 1:35:00. I spoke about the tariff case (which I helped litigate), broader issues related to executive power, and judicial review of invocations of emergency powers, among other issues. The other panelists included numerous prominent legal scholars and commentators (full list here). Here's the video:
"We analyze roughly 280,000 candidate fundraising emails to trace the rise of anti-billionaire populism in the Democratic party and see how it is slowly merging with a new kind of anti-AI populism."
Another very interesting item from my Hoover colleague Andy Hall (Free Systems); a brief excerpt, though you should read the whole thing:
Something is shifting in the Democratic party. A string of primary upsets has fed a growing narrative that the party's base now rewards a more aggressive brand of economic populism, one aimed squarely at billionaires, corporate power, and the political influence that money buys. And a number of sharp observers, including Jasmine Sun [piece here] and Archie Hall [piece here], have been arguing that this energy may come for AI next, a prediction that draws support from David Shor's polling showing voters souring on the technology and on the companies building it as part of a broader concern towards what they see as a rigged economy and a hopeless cost-of-living crisis.
But almost all of the evidence behind this narrative describes the mood of the American electorate, and moods are only half of the story. Politicians do not respond mechanically to shifts in public sentiment—they answer to donors, activists, and primary challengers, not just median voters … and sometimes they stake out new positions well before the public asks for them, or refuse to move long after it has. If we want to know whether AI populism is becoming an organizing position of the Democratic party, rather than a diffuse sentiment floating around in polls, we need to measure the politicians directly. We need to watch what candidates actually say when they are trying to raise money, to garner attention, and to win elections.
Fundraising emails turn out to be a remarkably good place to look. Campaigns test these messages relentlessly against open rates and donations, so the language that survives is the language that operatives have learned actually moves their base—a compressed, high-frequency, almost real-time record of what politicians believe their supporters want to hear. Drawing on Derek Willis's archive of political fundraising emails, we analyzed roughly 280,000 candidate emails sent since 2017 to trace how anti-billionaire populism became a major component of Democratic fundraising rhetoric, and how, more quietly but unmistakably, AI is starting to follow the same path….
A court refuses to order defendant to stop such posting.
From Kitsap County Superior Court Judge William Houser in Mavy v. Tomashefsky (Wash. Super. Ct. Clallam County), decided May 28:
Petitioner requests the court to amend the existing restraining order [which is currently on appeal -EV] to include the additional restraints of:
- Respondent is to have no contact with Petitioner's minor children; and
- Respondent is restrained from publishing statements intended to harass, intimidate, or threaten the protected person.
- Respondent shall not encourage or use a third person to post or share statements on line or via any other mode intended to harass, intimidate, or threaten the protected person; and
- Respondent is restrained from publishing identifying information about the protected person or the protected person's children.
For the following reason, the Motion for Additional Restraints is DENIED….
Mr. Mavy askes that his minor children be included in the order. They were not included in the original petition. The relationship between the children and Mr. Tomashefsky is one of step-parent/step-child. There is insufficient credible evidence presented to support the finding that they have been the subject of harassment as defined by law.
Mr. Tomashefsky is the husband of Mr. Mavy's ex-wife. There is significant litigation history between the parties, including this litigation on a civil harassment order. Mr. Tomashefsky posts news accounts online that involve various issues of interest to the community. He posts these news accounts under the banner of The Olympic Herald.
7/8/1941: Justice James Byrnes takes oath.

What’s on your mind?
The Institute for Free Speech, which represented Bakersfield College Prof. Daymon Johnson, reports:
Johnson has secured a settlement that makes his First Amendment protections permanent—and includes a $150,000 payment for attorneys' fees.
Kern Community College District has agreed to settle Johnson v. Fliger, a federal lawsuit brought by the Institute for Free Speech on behalf of Professor Johnson. Under the settlement, the preliminary injunction that a federal court entered in February 2026 will be converted into a permanent injunction for a period of five years, barring officials from investigating, disciplining, or terminating Johnson based on his speech in the classroom, in his scholarship, or as a private citizen….
Specifically, the case challenged California regulations requiring community college faculty to "employ teaching, learning, and professional practices that reflect DEIA and anti-racist principles" and to demonstrate "proficiency in DEIA-related performance to teach, work, or lead within California community colleges." Professor Johnson, a member of the dissident faculty organization the Renegade Institute for Liberty (RIFL), refused to support the government-mandated views and faced the threat of termination as a result.
Here's the excerpt I posted in February from the Johnson v. Fliger decision by Judge Kirk Sherriff (E.D. Cal.):
Plaintiff Daymon Johnson, a professor of history at Bakersfield College, brings this pre-enforcement challenge seeking injunctive and declaratory relief to preclude officials of Bakersfield College and the Kern Community College District ("KCCD") from enforcing, as to his intended speech, two provisions of the California Code of Regulations. These provisions would require Johnson to employ "teaching, learning, and professional" practices reflecting diversity, equity, inclusion, and accessibility ("DEIA") and anti-racist principles, require Johnson to "establish proficiency in DEIA-related performance to teach, work, or lead within California community colleges," and require defendants to evaluate Johnson based in part on his proficiency in such DEIA principles….
Johnson alleges that the DEIA regulations compel his speech and discriminate against his viewpoint in violation of the First Amendment. He alleges that he fears either being compelled to express a viewpoint with which he disagrees or being punished if he continues to refuse to express defendants' desired viewpoint or if he expresses his contrary views. Johnson has credibly identified specific speech that he reasonably fears would be proscribed by the DEIA regulations. And as the Ninth Circuit has found, he "has established a 'concrete plan to violate the law' based on his allegations regarding his desired speech and his refusal to express support for [DEIA] principles." Johnson v. Fliger (9th Cir. 2025) (quoting Thomas v. Anchorage Equal Rts. Comm'n (9th Cir. 2000) (en banc)).
The restrictions appeared in the law that Gov. Ron DeSantis promoted as the "Stop W.O.K.E. Act."
Some excerpts from today's very long opinion in Pernell v. Fla. Bd. of Governors of State Univ. by Judge Britt Grant, joined by Judge Charles Wilson; note that the leading Eleventh Circuit precedent on this is Bishop v. Aronov, which both opinions discuss in considerable detail:
[A.] The provision at issue here disallows any "training or instruction that espouses, promotes, advances, inculcates, or compels" students at Florida's public colleges and universities to believe any of eight concepts relating to topics like race and sex:
- Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
- A person, by virtue of his or her race, color, national origin, or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- A person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
- Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
- A person, by virtue of his or her race, color, national origin, or sex, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.
- A person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
- A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.
- Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.
Though "promot[ing]" any of these concepts is barred, criticizing them is not. Beyond that, the Act allows instructors to introduce the ideas in a neutral fashion, permitting discussion "as part of a larger course"—so long as "instruction is given in an objective manner without endorsement of the concepts." And the law does not say how far past the classroom its restrictions extend—off-campus speeches and other settings may be in play….
ICE is a menace to freedom of speech, as well as other civil liberties.

Yesterday, the Foundation for Individual Rights and Expression (FIRE), filed a lawsuit challenging an egregious violation of the First Amendment by the federal Immigration and Customs Enforcement agency (ICE). FIRE's website has a helpful description of the damning facts of the case (see also this summary by Reason's Tosi Akintola):
The freedom to criticize law enforcement without fear of punishment is an essential right in the United States. In fact, it's one of the things that separates our free nation from a police state. But officials at the Department of Homeland Security and Immigration and Customs Enforcement don't seem to understand this.
Five months after a Rochester man, David Streever, wrote a critical email to the then-head of ICE during the agency's January crackdown in Minnesota, federal officers recently went to extraordinary lengths to confront and intimidate him — even going so far as to stake out his New York City hotel as he returned from an overseas vacation with his daughter.
That's an outrageous violation of an American's First Amendment rights. So today, the Foundation for Individual Rights and Expression filed a federal lawsuit to challenge ICE's efforts to scare Streever and others into silence and remind other government officials that such behavior is un-American, unconstitutional, and unacceptable in a free society….
In January, federal immigration agents shot and killed Alex Pretti, a Minneapolis ICU nurse, during a tense encounter. Outraged, Streever wrote a stern email to then-acting ICE Director Todd Lyons, entitled "What's next" and calling the official a "monstrous human being" who will "go down in history as America's Reinhard Heydrich, the butcher," a reference to the infamous Nazi official.
The First Amendment unquestionably protects Streever's criticism. Writing an angry note to political leaders is an American tradition as old as the republic itself. That's why time and again, the Supreme Court has upheld that cherished freedom, warning against attempts to label heated political rhetoric as dangerous or unprotected.
FIRE is absolutely right. The organization first became famous for combating mostly left-wing speech codes and other abuses on college campuses. Here, they are working to counter a threat to free speech from the other side of the political spectrum. The consistency is admirable.
Sadly, this is far from the only case where ICE has violated free speech rights. In Tincher v. Noem (now redesignated Tincher v. Mullin), a federal district court found numerous examples of ICE and other federal immigration enforcement agencies using force and other illegal coercive tactics against peaceful protestors and journalists in Minnesota. An appellate court ruling later stayed the injunction issued by the district court, citing procedural considerations (e.g. - it ruled the injunction was likely overbroad). But that doesn't change the awful facts.
Evidence indicates that ICE has repurposed its Office of Professional Responsibility - which is supposed to monitor the agency's own compliance with law - to investigate and harass online critics.
ICE defenders claim its campaign of intimidation is justified by the supposed need to prevent "threats" and "doxxing" of agents. Actual threats of violence can be investigated and prosecuted. But, as the Streever case and others show, ICE's campaign of harassment and intimidation goes far beyond situations where actual threats are at issue. In addition, citizens have every right to criticize government officials -including law enforcement officers - by name. That's true even if doing so results in people sending those officials angry messages.
The issues at stake here go far beyond the specific case, or the particular issue of immigration enforcement. Law enforcement agencies cannot be allowed to use their power to target and harass their critics. Conservatives inclined to sympathize with ICE here should consider how they would reach if federal or state gun-law enforcers used similar tactics against gun-rights activists.
Sadly, ICE's abuses of civil liberties and other cruel and illegal actions go far beyond violations of the First Amendment. In an August 2025 article in The Hill, I summarized many of ICE's other abusive and unconstitutional actions - including detention without due process, widespread racial profiling, and more. Things have only gotten worse since then. This is just one of a number of ways in which our current system of mass deportation endangers the liberty of American citizens, as well as that of recent immigrants.
Lawsuits like that filed by FIRE can play a valuable role in constraining ICE's violations of constitutional rights. But case-by-case litigation can only do so much. Not all victims have the resources to go through prolonged litigation. And, even for those who sue and win, justice delayed is often justice denied.
The systematic nature of ICE's many abuses calls for a systematic solution. As I explained in the Hill article, and a later follow-up piece, we should abolish ICE and transfer its funds to real cops. That will simultaneously end ICE abuses and reduce crime. In the linked pieces, I develop the case for abolishing ICE in greater detail, and address various possible counterarguments.
As to James' discrimination claim, "James, who was on disciplinary probation leading up to the suspension, admits that Columbia suspended students involved in the encampment and fails to identify another student, who was also on disciplinary probation, whom Columbia declined to discipline."
From James v. Columbia Univ., decided Thursday by N.Y. trial court judge Kathleen Waterman-Marshall:
This action arises from certain disciplinary actions by defendant Columbia University …, including Columbia's decision to place plaintiff Khymani James …, a third-year undergraduate student who identifies as a black, Caribbean-American, on a one-year suspension….
James was studying abroad in London during the fall semester of 2023 when they began posting social media content in support of Palestine. According to James, they subsequently received berating, insulting, and physically threatening social media messages as a result thereof. In an alleged effort to dissuade the individuals behind these messages from engaging with James or causing them any physical harm, James posted public messages including one stating:
Zionists in my dm wanting to meet up and fight lol. I don't fight to injure or for there to be a "winner" / "loser." I fight to k***[.] See yall in New York [] January 2024 [].
In response to alleged complaints regarding James' posts, Columbia's Center for Student Success and Intervention ("CSSI"), the office responsible for administering academic and behavioral discipline, scheduled a virtual meeting with James on January 9, 2024. Without Columbia's knowledge or consent, James livestreamed the CSSI meeting, at which James compared Zionists to Nazis and stated, [among other things], that "the world is better without them." After the meeting with CSSI, James continued the livestream and told their online audience to "be grateful" that he was not "murdering Zionists."
Sorry for the late post: Our auto-posting for some reason glitched out today, so I'm posting this manually.
From State v. Zapata, decided May 12, by Wisconsin Court of Appeals Judge Sara Geenen, joined by Chief Judge Joseph Donald and Judge Pedro Colón (for more on the specific whistleblower argument, see this Courthouse News Service article [Destiny DeVooght]):
[T]he State charged {the Deputy Director of the City of Milwaukee Election Commission, Kimberly D. Zapata} with misconduct in public office (acting in excess of lawful authority) and three counts of making a false statement to obtain an absentee ballot….
[T]hrough the "MyVote website," [Zapata] "fabricated three individuals who did not exist, … used those fabricated names to have military voter absentee requests sent to the municipal clerks in Shorewood, South Milwaukee, and Menomonee Falls," and then "had the absentee ballots sent to" the state legislator. Zapata wanted to "make a point that there is fraud in existence" and have the legislator "focus" on "actual true fraud[.]" {Per the trial testimony, the MyVote website is a public-facing voter portal available in Wisconsin, wherein voters can request an absentee ballot, view their voting records and registration information, look up their polling place, and view a sample ballot.} Zapata acknowledged using her work laptop and accessing a "voter registration database" that is "only available to the municipality employees" in order to obtain the legislator's address….
Prior to the fall 2022 election, Zapata became concerned about the process for requesting military absentee ballots. Because a person requesting a military absentee ballot on the MyVote website did not need to provide photo identification or be registered to vote to make the request, Zapata felt that the process was susceptible to fraud. Zapata raised this concern with her supervisor and with the Wisconsin Elections Commission, to no avail.
This new article of mine has just been published by the Emory Law Journal. Here's the Abstract; readers might recall that I serialized an early draft of the article on the blog last year:
Recent statutes and lawsuits have sought to restrict social media or video game design practices that supposedly cause some users to become "addicted." Are such restrictions consistent with the First Amendment?
This Article begins by asking what would happen if the same arguments were applied to religious practices (whether or not the arguments' supporters would seek to so apply them). Say some religious practice was viewed as causing emotional or financial harm—e.g., by leading some adherents to feel guilty about their sexuality, to distance themselves from family members, or to give substantial portions of their assets to the religious organization. And say the practice was viewed as stemming from the adherents' nonrational decisions and emotional vulnerability, coupled with the religion's fostering intrusive urges and compulsions through techniques of reinforcement and habit formation that exploited features of people's neurotransmitter systems.
I take it that even so, the Free Exercise Clause would generally preclude restricting those practices. Many religious people derive personal value from their religious beliefs. Religious practice is constitutionally protected. And people often value their own religiously motivated decisions very differently than how other people might value those decisions.
In a few situations, the harm to the religious observer may be so sharp and immediate—or the mechanisms of control may be seen as so obviously improper—that the law may indeed intercede. But any such intercession must be based on more than some general claim of "addiction" to religious beliefs, or assertions of emotional harm or modest financial loss. And that remains true as to minors' participation in religious practices as well as adults' participation, at least so long as the minors' participation is tolerated by parents.
The Article then argues that much the same analysis should likewise apply under the Free Speech and Free Press Clauses to the design of speech products. Here too, the supposedly addictive features can be valuable to many users, even if they are harmful to some others. The design of speech products is presumptively protected by the First Amendment. And people often value features of speech products very differently than other people do. The First Amendment should thus largely preclude restrictions aimed at rescuing people from their own supposed propensity to becoming addicted to features of speech, just as it would preclude restrictions aimed at rescuing people from supposedly addictive religious behaviors.
7/7/1893: Justice Samuel Blatchford dies.

From Judge Steven Merryday (M.D. Fla.) today in Trump v. N.Y. Times Co. (for the Complaint in the underlying case, which involves various statements about Trump's early life and business career, see here):
A public figure, perhaps the world's most prominent public figure, whose actions and remarks routinely generate immediate global news coverage, sues a newspaper, perhaps the world's most prominent English-language newspaper, along with the world's largest trade book publisher and three authors. The plaintiff initiates in the Middle District of Florida an action for defamation arising from two articles and a book, researched, written, and edited in New York but published nationwide and abroad, including in the Middle District of Florida. The plaintiff, who resides in the Southern District of Florida but maintains a business presence in the Middle District of Florida, alleges that publication of the allegedly defamatory statements in the Middle District of Florida caused reputational and economic injury in the Middle District of Florida.
The court concluded that the case had been permissibly filed in the Middle District of Florida:
Under 28 U.S.C. § 1391(a)(2), venue is proper in any "judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." Section 1391(a)(2) "contemplates some cases in which venue will be proper in two or more districts," and "a plaintiff does not have to select the venue with the most substantial nexus to the dispute, as long as [the plaintiff] chooses a venue where a substantial part of the events giving rise to the claim occurred." …
The plaintiff claims that venue in the Middle District of Florida is proper and bases the claim on publication in the Middle District of Florida of allegedly defamatory statements {defendants distributed approximately 3,000 print copies of the allegedly defamatory articles in this district [and] … approximately 2,200 copies of the allegedly defamatory book "in or around" this district, [and] approximately 45,000 "unique online readers" in this district viewed the allegedly defamatory articles}, consequent reputational and business injuries in the Middle District of Florida, and a business presence in the Middle District of Florida. {The plaintiff is the cofounder of Trump Media & Technology Group, Corp., a media and technology company headquartered in Sarasota, Florida, and the plaintiff "was TMTG's majority shareholder at the time his claims accrued."} {To establish reputational and economic injury in this district the plaintiff alleges, "Defendants used their false and defamatory publications to disparage President Trump and impugn his reputation …. Defendants' false publications about President Trump also led directly to a precipitous decline in the stock price of TMTG, significantly injuring the President given his ownership stake."}
The defendants claim that venue in the Middle District of Florida is improper and base the claim primarily on the location of the "relevant journalistic activities" (the defendants' summary phrase), including researching, interviewing, writing, editing, and the like, almost all of which occurred in New York and the balance of which occurred in New Jersey. The defendants' claim is based on events that occurred before publication, that is, before the claim for defamation accrued. These "relevant journalistic activities" were not—either individually or cumulatively—themselves actionable as defamation (or for any other reason that appears) in Florida or New York or elsewhere.
Under Judge Tjoflat's governing logic in Jenkins Brick [the Eleventh Circuit precedent -EV], these "relevant journalistic activities" are not the events most directly, that is, most immediately and causally, connected to an actionable defamation (or, more exactly, a claim of defamation). Publication plus reputational and business damage are the events most directly connected to the alleged claim and, therefore, most determinative of a proper venue.
To be fair, it wasn't much of a surprise, and indeed it's a present Swift was entitled to expect. An excerpt from today's decision by Judge Cannon in Marasco v. Swift:
Plaintiff, proceeding pro se, initiated this lawsuit in February 2025, alleging federal copyright infringement against Defendants Taylor Swift [and others] …. Plaintiff is the author of two books that contain various poems—Dealing with a Chronic Illness: Vestibular Neuritis ("Dealing") and Fallen from Grace ("Fallen"), which Plaintiff alleges was later renamed Songs of the Unsung—together with a standalone poem, "Noah." Plaintiff concedes her books "are not presently being marketed," and pleads specific sales figures only for Songs of the Unsung (the renamed Fallen), alleging "approximately 300 copies" sold globally.
Sprawling twelve counts, Plaintiff alleges that a variety of Defendants' songs infringe her exclusive rights in various poems. To illustrate, Count I alleges that Defendants' song "The Man" (containing the lyric "I'm so sick of running as fast as I can/Wondering if I'd get there quicker if I was a man") infringes Plaintiff's poem "Ordinary Citizen" ("I'm running behind/You say its His word against mine") because both describe a woman working in a male-dominated office environment. Count X alleges that "The Great War" ("Diesel is desire, you were playing with fire") infringes "The Fire" ("Anger fuels our desire … I'm fighting fire with fire") because both use the metaphor of "desire as fuel and fire." Similar allegations populate the remaining counts….
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