From E.B. v. J.R., decided Aug. 20 by Massachusetts Appeals Court Justices Sabita Singh, Rachel Hershfang, and Chauncey Wood:
The defendant appeals from harassment prevention orders issued pursuant to G. L. c. 258E (258E orders), by a judge of the District Court, requiring the defendant, among other things, to stay away from a city zoo where she had regularly protested the treatment of animals in its care. The plaintiff, a veterinarian who worked at the zoo, sought and obtained an ex parte 258E order against the defendant, which was later extended following a hearing after notice….
When reviewing whether the evidence was sufficient to support the issuance [or extension] of a 258E order, we consider [consistently with the statutory requirements] whether, "by a preponderance of the evidence, together with all permissible inferences," the judge could have found "that the defendant had committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.'" …
Where the harassing acts consist of speech, each act must be the type of speech that is not protected by the First Amendment to the United States Constitution, i.e., generally either "true threats" or "fighting words." True threats include "direct threats of imminent physical harm" and "words or actions that—taking into account the context in which they arise—cause the victim to fear such [imminent physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." Fighting words are limited to personal insults that are inherently likely to incite a violent reaction….
The plaintiff's affidavit described the following four alleged incidents of harassment.
First, in July 2024, while the plaintiff was working at the zoo, the defendant began "yelling and screaming" at the plaintiff that she "should lose [her] job and right to be a veterinarian[,] … that [she] was abusing [her] power[,] and that [she was] abusing and killing the animals."
From Judge Virginia Kendall (N.D. Ill.) in U.S. v. Holmes:
After the Government filed a Criminal Complaint against Holmes on March 13, 2026 , a grand jury returned an Indictment charging Holmes with violating 18 U.S.C. § 875(c) on April 7, 2026. The Indictment alleges that Holmes operated the X account "@MapleStCapital" that displayed an American flag emoji with the statement "END The Fed." The Indictment alleges that Holmes posted on that account several statements against the Jewish community and Israel, including: "The jew will be destroyed and discarded," "From the river to the sea every Jew will die," "You inbred people will all die," and "Die Jew."
On or about March 3, the State of Israel posted a video [on the account "@Israel"] that showed a billboard with the face of Ali Khamenei along with the statement: "The world is a better place without Khamenei." In that post, the State of Israel wrote: "It's a first step towards a better world." Holmes responded to this post from the State of Israel with the following message: "I'm going to shoot up a synagogue." It is that statement that the Government alleges violated 18 U.S.C. § 875(c)….
The Indictment alleges that:
TIMOTHY HOLMES, defendant herein, knowingly transmitted in interstate commerce a communication containing a threat to injure the person of another, namely, a post on X in which he wrote, in response to a post from "@Israel", "I'm going to shoot up a synagogue", and defendant transmitted the communication for the purpose of making a threat, knowing that the communication would be viewed as a threat, and recklessly disregarding a substantial risk that others would regard the communication as a threat….
Holmes asserts that his statement "I'm going to shoot up a synagogue" is not a true threat because it lacks sufficient specificity. Holmes maintains that his post was but a "generalized, albeit offensive, statement directed at an institution or building" that fails to rise to the level of a true threat because "[i]t does not identify a particular individual or group of individuals" and it also does not "specify a location, a time, or any target beyond the generic category of 'a synagogue.'"
President Donald Trump signed a proclamation on Friday that removes some Canadian products from tariffs imposed under Section 338 of the Tariff Act of 1930 and adds others, the White House said. The changes take effect Oct. 30.
Plywood sheets, some paper products, certain machinery and refrigeration equipment, and certain packing crates and boxes come off the list. Some valves, along with carpets, waste products and other goods, take their place.
The tariffs, set at 50% according to CNBC, apply whether or not a good originates under the U.S.-Mexico-Canada Agreement….
The fact that American businesses and consumers in states like Maine are suffering from the tariffs gives the lie to the notion that only foreigners are burdened by them. Trump's action here also underscores how the tariffs have become highly unpopular, and a drag on GOP prospects in the upcoming election.
While Trump may have (perhaps only temporarily) lifted some of the Section 338 tariffs, most remain in place. As noted above, he imposed additional tariffs on some goods, even as he lifted them on others. And the Section 338 tariffs are still still illegal for a variety of reasons I summarized in my previous post on the LJC lawsuit against them, as well as earlier writings:
I have previously written about why Trump's Section 338 tariffs are harmful and illegal. See my recent Montreal Economic Institute paper on this topic, and earlier pieces here, here, and here. To briefly summarize, the tariffs on Canada are illegal because 1) Section 338 has been superseded by later legislation, 2) even if Section 338 is still operative, Trump's tariffs do not meet its requirements because the Canadian actions they supposedly respond to do not "discriminate" against US goods, as the law requires, 3) Trump's tariffs do not "offset" the Canadian actions (as Section 338 also requires), but go far beyond that, 4) the administration's interpretation of Section 338 runs afoul of the "major questions" doctrine, and 5) if Section 338 is operative and does authorize the Trump actions, it would violate the constitutional nondelegation doctrine (which restricts delegation of legislative power to the executive).
The LJC complaint advances all five of these arguments. To prevail, they need win on only one.
In addition to illegally usurping congressional power over taxation, the Trump trade war against Canada damages our economy and poisons relations with a key ally. Courts should strike it down, just as they did with the IEEPA tariffs and the more recent Section 122 tariffs. They should also invalidated the massive Section 301 "forced labor" tariffs, which have been challenged in three cases currently before the US Court of International Trade.
UPDATE: It's worth reiterating that giving one person the power to impose and lift tariffs whenever he feels like it is an affront to the rule of law.
Damien Charlotin, who runs the invaluable AI Hallucination Cases site (2200+ cases worldwide and counting) has a new one, AI Deepfakes in Court, listing 26 cases worldwide so far. His summary:
This database tracks decisions dealing with deepfakes submitted as evidence, averred or alleged, including texts and documents such as forms, records and correspondence. A failure to authenticate an exhibit is recorded separately from any finding that it was AI-generated.
It does not track cases about deepfakes as a subject: the focus is on cases started on any ground, where parties (allegedly or verily) submitted deepfakes as evidence to bolster their claims. This is distinct from using AI to fabricate citations, which is covered by the AI Hallucination Cases database, or using AI as evidence (e.g., to offer a translation or a common sense opinion), which is covered by the AI Evidence Cases database.
For the next month, the AALS Section on Law & Religion is accepting nominations for the Harold Berman Award. Here is the text of the announcement:
The AALS Section on Law & Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that "has made an outstanding scholarly contribution to the field of law and religion," in the words of the prize rules. To be eligible, a paper must be published between July 15, 2025 and July 15, 2026. The author must be "a faculty member at an AALS Member School with no more than 10 years' experience as a faculty member." Fellows are eligible, and self-nominations are accepted, though members of the AALS Law & Religion Section Board are not eligible. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Rick Garnett (rgarnett@nd.edu), Chair of the Berman Prize Committee, by November 18, 2026. The winner will receive an award plaque and be recognized at the section's program at the AALS annual meeting in January 2027. Thanks to the members of the Prize Committee: Rick Garnett (Notre Dame), Nelson Tebbe (Cornell), Richard Albert (Texas), Brandon Paradise (Rutgers), Leslie Griffin (UNLV), and Anna Su (Toronto).
Plaintiff's four subpoenas to the AI Providers and its Seventh RFP seek the same information, specifically Defendant's communications with AI platforms since December 3, 2024, concerning various categories of subjects:
All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to the Fontainebleau Hotel.
All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to this litigation.
All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to counsel for Plaintiff.
All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any employee, owner, or representative of the Fontainebleau Hotel.
All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any Court Order entered during this litigation.
All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to Judge K. Michael Moore or the undersigned.
In addition, to these six categories, Plaintiff seeks one more category of documents in the subpoenas to the AI providers (but not in the Seventh RFP), consisting of:
All of Defendant's AI Communications regarding Requests 1 through [6] that have, since their creation, been deleted….
Plaintiff [argued] that Defendant's AI communications may reveal the extent of his alleged malice toward Plaintiff, the intentionality underlying his conduct, and evidence relevant to the determination of punitive damages, including whether an exception to Florida's statutory cap [on punitive damages] applies….
Today the en banc Fifth Circuit ruled that illegal aliens do not have a constitutional right to a bond hearing pending deportation. The vote was ostensibly 10-7, although the vote is better characterized as to 9-8. Judge Richman only concurred in judgment. As I've said many times before, the en banc Fifth Circuit is effectively split on a razors-edge.
Guess which judge wrote the lead dissent finding that illegal aliens have the right to roam freely "to whatsoever place" their "own inclination may direct; without imprisonment or restraint"? I'll give you a hint: it's the same judge that President Trump made a deal with to pick his own replacement.
Let's start with Judge Ho's concurrence:
A nation ceases to be a nation if it can't protect its borders. Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings. See 8 U.S.C. § 1225(b)(2)(A).
According to our dissenting colleagues, however, illegal aliens have not only a de facto constitutional right to remain in our country unlawfully, but an incentive to make this their home. That's because, to quote the principal dissent, once an alien has "acquired a domicil or residence" in America, it no longer matters that they are breaking the law to be here—their detention becomes an offense to "'liberty' . . . at its core," and an affront to freedom "at its most basic," namely, "freedom from physical restraint." Post, at 101, 102, 115 (Southwick, J., dissenting). So they must have "the power of locomotion" and the right to roam freely "to whatsoever place one's own inclination may direct." Id. at 102, 103 (quoting 1 William Blackstone, Commentaries on the Laws of England 130 (1769)).
Judge Southwick's dissent was joined by Judges Stewart, Graves, Higginson, Douglas, and Ramirez--all of the Democrat-appointed judges on the court. Judge Richman concurred in the judgment. Judge Haynes did not join the dissent. She did a bit more than her usual practice on the en banc court of saying nothing--a topic for a future post--and actually wrote a full paragraph.
Why would the Trump Administration actually trust Judge Southwick to pick a replacement who would even be marginally conservative?
Does Todd Butler agree with Judge Southwick that denying a bond hearing to illegal aliens is an affront to freedom "at its most basic"? Does Butler agree with Judge Southwick that illegal aliens have the right to roam freely "to whatsoever place" their "own inclination may direct; without imprisonment or restraint"? Would Butler compare, as Judge Oldham noted, "modern-day immigration detention to the Tower of London, where English monarchs would 'secretly hurry[a man] to gaol, where his sufferings are unknown and forgotten,' and where clandestine detention was worse than 'open despotism.'"
Would Butler possibly agree with this passage from Judge Ho:
Americans like to boast that we live in a country where no one is above the law, not even the President. But if that is so, then there's no denying that these habeas petitions, far from affirming American liberty, are profoundly un-American—because they send the message that the only people who are above the law in our country are the ones who violated our laws to get in.
Consider a world where Judge Butler was on the court. Imagine that Senior Judge Southwick was on the original three-judge panel (he was in fact on the three-judge panel). Remember, Judge Richman only concurred in judgment, as she disagreed with the majority's habeas ruling. With this divide, the whole court would have split 9-9 on the constitutional question. And that is the cost of allowing Judge Southwick to stay on the court and giving Judge Butler another vote. As I noted before, "I would prefer Judge Southwick to have one vote rather than two votes."
For people who actually care about the en banc Fifth Circuit, and not just maximizing the number of total Trump circuit court appointments, the Butler nomination is an unforced error. Let Judge Southwick keep extolling the constitutional rights of illegal aliens from his chambers in Austin. He's choosing Texas, I can tell. At some point, adverse possession kicks in, right?
And for those keeping track at home, Mississippi has three circuit judges for about three million people and Texas has nine circuit judges for more than thirty million people. The math just doesn't math. Hillary Clinton said the Supreme Court should be expanded to thirteen so that there could be one Supreme Court Justice for each circuit. (Because of course the Federal Circuit needs its own circuit justice.) If that's the case, then make Texas its own circuit to justify yet another Supreme Court justice. That math does math!
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! In Feb. 2025, federal agents raided IJ client Mario Ayala Cruz's check cashing and money transfer business in Glendale, Ariz., seizing computers, cell phones, documents, and over $450k in cash and checks. And then … nothing. Mario, who runs the business (by the book) with his wife and adult children, has not heard anything for 20 months. No charges have been filed, and the feds are way past the 60-day deadline to either initiate civil forfeiture or return the property. Which violates the Fourth Amendment and federal law—and was extra crummy because it forced Mario to cut short his final visit with his dying father in Mexico. Click here to learn more.
New on the Short Circuit podcast: We get a Rocky Mountain high at the Tenth Circuit Bench & Bar Conference. Learn all about what makes the circuit tick from the experts we met there, including our first guest from a circuit historical society.
For decades, federal guidance has limited immigration enforcement at "sensitive locations," including houses of worship. Recently, DHS and ICE release new policy guidance allowing "discretion" and "case by case" decisions regarding enforcement at churches, synagogues, and mosques. Religious organizations sue. D.C. Circuit (over a dissent): And they have standing.
After spending 7.5 years in pretrial detention at Rikers, man is finally sentenced to a max of 7 years—time to let him out! But prison officials drag their feet for another 17 days. Second Circuit: Case undismissed. He plausibly alleged the city and its officials are turning a blind eye to overdetention.
Sure, says two-thirds of this Third Circuit panel, the plaintiff church has shown a good bit of evidence that Collier, Penn. officials rejected its application to build a 13k-square-foot shrine out of animus towards the church's pro-life advocacy, but that doesn't mean it gets a preliminary injunction because there's absolutely nothing "preliminary" about building a 13k-square-foot shrine. Read More
Today, the Trump Justice Department filed a federal lawsuit seeking to block Alaska Senate election results on the grounds they might be influenced by voter "confusion" between incumbent Republican Senator Dan S. Sullivan and a separate Republican candidate with a very similar name (Dan L. Sullivan). I previously wrote about the issues raised by the two Dan Sullivans here. As I pointed out in the earlier post, there is no legal basis for overturning congressional election results based on voter confusion, and any such action would likely violate the First Amendment. See also this analysis by election law specialist Rick Hasen.
I would add that any such federal action also runs afoul of states' primary authority over election procedures. The Elections Clause of the Constitution gives states primary authority over "The Times, Places and Manner of holding Elections for Senators and Representatives," subject to Congress' power to modify these rules by legislation. Congress has not enacted any statute allowing overturning of election results based on possible "voter confusion."
If "voter confusion" were a legitimate reason to overturn election results, that would imperil a great many election winners, as voter ignorance - and exploitation thereof by candidates - is a widespread and longstanding problem. I covered some of these points in my previous post about the two Dan Sullivans:
Donald Trump is a particularly egregious example, going all the way back to his first campaign in 2016, and more recently with his lies about the 2020 election and other issues. But more conventional politicians also often resort to lies and deception, even if not to the same degree. President Obama, for example, famously lied when he claimed that, under the Affordable Care Act, "if you like your health care plan, you can keep it." That deception won the 2013 Politifact Lie of the Year award. But it still helped Obama get reelected in 2012. I am not sure exploiting voter confusion about names is any worse than exploiting their ignorance about policy issues like crime, immigration, and health care….
Voter confusion about candidates with similar names is just another example of this broader problem….
There is no easy solution to the problem of voter ignorance. But I assess a range of possible options in my 2023 article on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance, and in my earlier book Democracy and Political Ignorance. I believe the best approach is to make fewer decisions at the ballot box and more by "voting with your feet," where incentives to seek out information and evaluate it wisely are much better. But I recognize that any effective approach will take time, and there may be no one fix that is sufficient by itself. We may need to pursue multiple strategies. In the meantime, voters are likely to continue to be ignorant and confused about a variety of issues, and politicians and interest groups are likely to keep on exploiting that.
Many of these other voter ignorance problems are far worse than any potential confusion between candidates with similar names, a problem that only comes up relatively rarely.
UPDATE: Rick Hasen has a helpful analysis of the Alaska lawsuit here:
DOJ has no power to decide which candidates can appear on the ballot. The sole basis that DOJ asserted for trying to block the state's certification process is the National Voter Registration Act's preamble that reads that the act is designed to "protect the integrity of the electoral process." That preamble of course gives no power whatsoever to the federal government to do anything. It does not give DOJ the power to determine ballot access or block certification of a federal election. The Alaska Supreme Court decided the state law ballot access question back in June, allowing the second Sullivan to appear on the ballot.
A short excerpt from the long opinion in Jackson Fed. of Teachers v. Fitch, decided yesterday by Fifth Circuit Judge Jerry Smith, joined by Judge Kurt Engelhardt:
In April 2025, Mississippi enacted House Bill 1193 (H.B. 1193), a law designed to keep Mississippi public education funds from being spent on diversity, equity, and inclusion ("DEI") initiatives and similar controversial programs. The law prevents government-run institutions from requiring activities such as diversity training or pushing DEI ideology, so defined, in the course of government-funded business.
H.B. 1193 does four main things. First, it prevents educational institutions from mandating DEI programs and diversity trainings in a variety of contexts. Second, it stops public educational institutions from punishing students for their views on DEI. Third, it prohibits regulated institutions from endorsing or promoting DEI through course materials. Finally, it prevents institutions and their educators from otherwise engaging in DEI methods or actions, preventing bad actors from circumventing prohibitions and frustrating its purposes. The statute also creates an administrative process to handle claims that a given educational institution is not in compliance. H.B. 1193 excepts several activities from its sweep, including scholarly work, the activities of students and their groups, and creative engagement.
Plaintiffs sued, claiming (among other things) that the law violated the First Amendment, but:
The proceedings in the district court were a botch job, to say the least. Judge Henry Wingate issued a temporary restraining order ("TRO") enjoining enforcement of H.B. 1193 that contained several factual assertions nowhere to be found in the record, or indeed, in any proceeding of the case. Those included mention of plaintiffs and defendants not in the complaint, supposed "declarations" from non-existent or never-present individuals, false quotations purporting to be taken from the text of H.B. 1193, and several erroneous claims that the law had already led to the demise of apparently fictitious programs.
After this came to light, Judge Wingate replaced the TRO without explaining.
Forging forward despite the bungled TRO, Judge Wingate issued a pre-enforcement preliminary injunction. The various state defendants appeal.
At oral argument in this court, it was discovered that even the "corrected" TRO—which was incorporated by reference into the preliminary injunction order—still contained hallucinated information (namely, a citation to a purported Fourth Circuit case, "Cousins v. School Bd. of City of Norfolk," that does not exist).
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