The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Harmeet Dhillon, the assistant attorney general for civil rights, urged pro-Israel college students to distinguish between protected speech and actionable discriminatory conduct — "people literally interfering with your ability to get an education" — when facing antisemitism on campus.

"[With] a lot of young people these days, there's kind of a snowflake culture with 'I feel unsafe.' I feel unsafe everyday when I go to work and get a mean email from a colleague. Life is full of challenges," Dhillon said on Tuesday at the conclusion of the Israel on Campus Coalition's National Leadership Summit in Washington.

"Someone wearing a keffiyeh or shouting 'from the river to the sea,' it's protected by the First Amendment," Dhillon said. "Holding a red triangle over a student's head in a mob setting and saying 'Jews not welcome' is much closer to not protected speech."

"You have to sort out people being mean or rude to you versus people literally interfering with your ability to get an education," she said.

It so happens I've written two articles on exactly that theme, i.e., distinguishing between protected speech and unprotected conduct.

Unfortunately, the Jewish Insider article does not give much more detail about Dhillon's speech; I don't know if that's because the speech did not go into further detail, or because of the limitations of a short article.

That said, while I agree with Dhillon's general point and understand why she made it to this specific audience, there is a related issue percolating through the courts: can otherwise protected speech be used as contextual evidence to explain why unprotected conduct contributed to an unlawful hostile environment for Jewish students.

The law firm Consovoy, McCarthy recently filed an amicus brief to the Supreme Court on my behalf, asking the Court to grant cert. in Stand With Us Center for Legal Justice v. MIT. In that case, the First Circuit, correctly, held that illicit actions by anti-Israel protestors cannot turn unprotected speech into a civil rights violation. The court then, incorrectly, suggested that the illicit conduct itself became part of the protected speech so long as MIT chose not to enforce its rules (and the law).

But the amicus brief focuses on the narrower issue of whether constitutionally protected speech endorsing violence can be used as contextual evidence explaining why unprotected conduct contributed to a hostile environment. Given that the court mistakenly ruled that unprotected conduct was protected speech, it neglected to meaningfully address this issue, but it's crucial to hostile environment cases:

An act that appears innocent in isolation may take on a different meaning when viewed in context. Posting a completed game of hangman in a dormitory common area may seem innocuous. But if students had publicly declared the week before that lynching was a good way to keep Black people "in their place," the same image could reasonably be understood as threatening and racially targeted. The surrounding expression thus bears directly on how a reasonable person would understand the act.

As always, a cert. grant is a longshot, but mine is one of several amicus briefs filed in the MIT case.

If followed by other courts, the opinion would not only make it nearly impossible for Jewish students to win hostile environment cases, could also spell the end of hostile environment litigation more generally.

In addition to the issue raised above, the MIT court held that holding a defendant liable for deliberate indifference to a hostile environment requires evidence that the actors who created the hostile environment acted with discriminatory animus. So, first, the court held that proof of discriminatory animus is required, but also held that contextual evidence that would show that discriminatory animus is barred.

And, second, the notion that discriminatory animus is required for hostile environment claims to begin with seems clearly wrong. On the most basic level, it's not the students who created the hostile environment who are being held liable in a hostile environment case, it's the university that exhibited deliberate indifference to the hostile environment.

Imagine the university implemented an AI communications system, which started sending out violent threats to women students. The university became aware of these threats, and the impact it was having on women students who were unable to concentrate on their studies after receiving vile, threatening messages to their phones and emails. The university chooses to do nothing.

AI, not being a sentiment being, can't have an "intent." Does that mean that a subsequent hostile environment case should fail, because there was no discriminatory intent or animus in the underlying behavior? That seems absurd.

My second essay for SCOTUSBlog calls on the Justices to hold regular press conferences. Here is a snippet:

My proposal for holding press conferences is unconventional, but I think it would be a net positive. At regular intervals, different members of the Supreme Court would hold a televised press conference before the Supreme Court press corps, as well as members of alternative media outlets, such as podcasters.

Certain topics would of course be off limits. The justices could not opine on any pending cases. They also could not offer any opinions that could trigger a recusal on some matter. But there are a range of topics the justices could discuss. The justices should be pressed on leaks. Indeed, Kagan and Barrett were expressly asked about the Dobbs leak by members of Congress. I suspect if more information is given publicly, there would be fewer leaks. Moreover, I have been critical of Chief Justice John Roberts for selectively speaking out on some issues (such as judicial impeachment), but saying nothing about a series of critical leaks that predated Dobbs. If there are regular press conferences, these statements would become more common, rebutting the charge of selective outrage.

Indeed, I think the justices are ready for primetime. There has been a longstanding annual practice in which two justices would testify before the House Judiciary Committee. They will primarily discuss the court's budget but also answer some questions about how the court operates. This practice took a hiatus during the pandemic, but resumed with the recent showing from Kagan and Barrett. In 2011, Justices Scalia and Stephen Breyer gave a remarkable joint testimony before the Senate Judiciary Committee on the Constitution. We need to hear more from the court, and not just before the appropriations committees.

I wrote this piece before Justices Kagan and Barrett testified. Their performance, in my view, makes the case for press conferences far stronger.

From Third Circuit Judge Emil Bove's dissent last week from the one-line denial of mandamus in In re Mylan, Inc. (the majority consisted of Judge Brooks Smith, joined by Judge Matthew Schwartz):

The Attorney who survived Defendants' disqualification motion is representing private parties in the very same litigation he led on behalf of Connecticut for more than a decade. This direct monetization of prior government service is beyond the pale. It is also a violation of Rule 1.11(c) of Pennsylvania's Rules of Professional Conduct. The Rule violation undermines the integrity of the proceedings, including an upcoming complex bellwether trial that will have a ripple effect in other multi-district litigation. Ripple effects in the MDL [Multi-District Litigation] multiply the taint risk that the District Court has authorized.

So I would grant mandamus relief. The decisions of the Attorney, the Firm, and Plaintiffs require disqualification….

From a commercial standpoint, there is no mystery about the Firm's hiring of the Attorney and Plaintiffs' desire to pay for the Attorney's services. Plaintiffs are seeking billions in damages relating to pharmaceutical price fixing.

Beginning around 2016, the Attorney led an investigation on behalf of Connecticut's Attorney General that overlapped with Plaintiffs' claims almost 100%. During the Attorney's public service, he joined forces with 53 other States and Territories. He gleaned strategic and investigative information during that process. While working for Connecticut, the Attorney spoke privately and confidentially with those regulators, targets of the investigation (including certain Defendants) and their counsel, and witnesses and their counsel. The Attorney's government work also involved coordination with the DOJ and FTC, which conducted parallel federal investigations. There have already been federal deferred prosecution agreements and coordinated state-level civil settlements. Those dispositions all but confirm that sensitive information circulated between the government actors—including the Attorney—for quite some time.

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From N.Y. trial court judge Lisa Headley in VDARE Found., Inc. v. N.Y. Times Co., decided July 20:

In this action, the plaintiff asserts claims for defamation arising from four articles. The plaintiff is seeking $700,000 in actual damages with punitive damages and costs.

First, in August 2019, the plaintiff alleges, inter alia, that the defendant, in a Times article "quoted the associate director of the Anti-Defamation League opining that while the term 'kritarch' has historically been used in a non-pejorative way to describe 'rule by judges,' more recently it has been 'co-opted' by extremists and taken on a different meaning." The plaintiff argues that it was false and defamatory to report that the term, "kritarchy" had "suddenly been transformed into an anti-Semitic code word."

Second, in September 2019, plaintiff alleges, inter alia, that the defendant published a story that referenced and included an underlined text hyperlink to the August 2019 article, and that it was defamatory to say that "a post on the plaintiff's website used an anti-Semitic reference."

Thirdly, in November 2019, plaintiff alleges, inter alia, that the defendant published an article about Stephen Miller, who cited "Peter Brimelow, the founder of the anti-immigration website VDARE, [who] believes that diversity has weakened the United States[.]" Further, the November article 2019 reported that "the SPLC 'has labeled VDARE a 'hate website' for its ties to white nationalists[.]" The plaintiffs asserts that such statements about VDARE were false and defamed it.

Lastly, in May 2020, the plaintiff alleges that the defendant published a wire article from Reuters, and defamed the plaintiff when it reported, inter alia, that VDARE is accused of "race hatred," "manipulating on-line readers by utilizing a 'bot-farm' of fake accounts," and violating VDARE's "501(c) status."

The court granted the Times' anti-SLAPP motion and dismissed the case; note that New York law requires "actual malice" (i.e., knowing or reckless falsehood) as to all statements on matters of public concern, whether brought by public figures or not:

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From Adam Feldman (Legalytics) yesterday—unsurprising, but it's helpful that this can be shown concretely:

This article examines what courts have done after lawyers learned, or should have learned, that AI-related inaccuracies had entered the record. The study began with Damien Charlotin's publicly available AI Hallucination Cases Database and independently reviewed 100 of the most recent cases in the dataset that were resolved U.S. matters involving lawyers. A stricter analytical sample included cases with a meaningful AI connection, a final judicial outcome, and enough information to evaluate counsel's response after discovery.

The results point to a coherent and practical distinction. The seriousness of the original error remains central: nearly every high-materiality incident produced a serious consequence. But post-discovery conduct also mattered. Serious consequences were substantially more common when lawyers offered misleading explanations, shifted blame, repeated the misconduct, or introduced additional inaccuracies after receiving notice. Prompt admission, by contrast, was associated with a markedly lower rate of serious consequences.

Candor cannot erase significant harm to a client or the judicial process. It can, however, prevent an already serious mistake from becoming a separate problem of professional responsibility….

And some more (read Feldman's whole post for still more):

AI in Court

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President Donald Trump and Commerce Secretary Howard Lutnick on "Liberation Day" (Michael Brochstein/ZUMAPRESS/Newscom)

Today, The Dispatch published my new article on Donald Trump's massive new Section 301 tariffs. Here is an excerpt:

President Donald Trump recently used Section 301 of the Trade Act of 1974 to impose massive new tariffs on 60 U.S. trading partners, including the European Union, Canada, Australia, Japan, South Korea, and more. Imports from 41 trading partners will now face 12.5 percent tariffs, and the others will be subject to 10 percent levies.

In February, the Supreme Court invalidated Trump's International Emergency Economic Powers Act of 1977 (IEEPA) tariffs, which imposed tariffs of 10 percent or more on almost all U.S. trading partners… In a case I helped develop and litigate, the court's 6-3 decision held that IEEPA does not authorize tariffs and that the president could not legally claim unlimited tariff authority. With the new Section 301 tariffs, Trump seeks to circumvent the Learning Resources v. Trump decision and once again enact a broad trade war without congressional authorization.

Unlike IEEPA, Section 301 does authorize tariffs. But it sets limits that Trump's policy blatantly transgresses. Section 301(b), the provision Trump is relying on, allows the U.S. Trade Representative (USTR) to impose tariffs if it finds, after an investigation, that "an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce." In this case, the USTR claims the offending policies relate to the importation of goods supposedly made by forced labor.

In a recent Dispatch article, my Cato Institute colleague Scott Lincicome explained why the forced-labor "investigations" the administration claims justified the Section 301 tariffs are a sham. As he noted, the conclusion of the investigations was clearly predetermined, the tariffs imposed have no real connection to any genuine forced-labor issues, and many of the countries subject to the new tariffs actually have tighter restrictions on goods produced by forced labor than the U.S. itself does….

The new Section 301 tariffs also run afoul of the major questions doctrine, which requires Congress to "speak clearly" when authorizing the executive to make decisions of "vast economic and political significance." At the very least, Section 301 does not clearly authorize the president to start a trade war against almost all our major trading partners on the basis of a sham investigation and dubious pretexts.

The Section 301 tariffs undoubtedly implicate the major questions doctrine. The Tax Foundation estimates the Section 301 tariffs will impose some $629 billion in new taxes on Americans over the next decade. Like the IEEPA tariffs, they are likely to significantly reduce income and economic growth. These potential effects are larger than those of any of the previous policies the Supreme Court has determined to be major questions, with the exception of the IEEPA tariffs themselves. (In that case, three of the six justices in the majority relied on the major questions doctrine.) The new tariffs outstrip even President Joe Biden's sweeping student loan forgiveness program, which involved some $400 billion in unauthorized expenditures and was invalidated by the Supreme Court in 2023 in large part because it ran afoul of the doctrine….

Even if the courts conclude that Section 301 authorizes these new tariffs, they should also rule that their imposition violates the constitutional nondelegation doctrine, which limits the delegation of legislative power to the executive. Tariffs are a specifically enumerated congressional power. The Supreme Court's nondelegation precedent is far from completely clear, but last year's decision in FCC v. Consumers' Research held that delegations of the power to impose taxes and other financial levies must have a clear floor and ceiling and that "[t]he guidance needed is greater when an agency action will affect the entire national economy than when it addresses a narrow, technical issue." There is, pretty obviously, no meaningful floor or ceiling under the administration's approach to Section 301. And the authority claimed by Trump is certainly one that affects the "entire national economy…."

If Trump can use IEEPA, Section 301, or some other statute to impose unlimited tariffs on any import from any nation whenever he wants, that makes this enormously important power subject to the whims of one person. Such unconstrained authority is inimical to the rule of law, which requires that major laws and regulations be set in advance by legislation and not subject to any one person's total control. It thereby destroys the stable expectations businesses, investors, and consumers need to make their plans, imperiling the economy.

Relatedly, if the president can impose massive new tariffs at will, including by making utterly bogus accusations related to "forced labor," the nation's credibility with trading partners is damaged. Any trade agreement with the U.S. becomes essentially worthless, as the president can violate it at will. And businesses and governments would be foolish to commit to trade and investment in America, knowing those commitments could be imperiled any time the president becomes peeved about some issue. Over the last year, Trump has either threatened or actually imposed tariffs on major trading partners for ridiculous reasons: wildfires in Canada, the supposed threat of foreign-made movies, and the prosecution of Brazil's former president for launching a coup to stay in power after he lost an election. In addition to the economic damage, such actions poison U.S. relations with key allies and make it more difficult to work together to counter adversaries like Russia and China….

Three lawsuits challenging the tariffs have already been filed: one brought on behalf of two small businesses by the Liberty Justice Center (the public interest law firm I worked with on the IEEPA case); one filed by several firms, including Learning Resources Inc., the toy manufacturer whose IEEPA challenge ended up before the Supreme Court; and—most recently—one brought by 25 state governments led by Oregon…

From Gonda v. Duering, decided Friday by the Hawaii intermediate appellate court (Justices Katherine G. Leonard, Keith K. Hiraoka, and Daniel M. Gluck):

[O]n December 11, 2024, Petitioner-Appellee Anaya Gonda filed a Petition for an Ex Parte Temporary Restraining Order (TRO) and for Injunction Against Harassment (Petition). Gonda alleged that Duering, her former landlord, had harassed her both before and after she vacated the apartment on September 11, 2023. She alleged that Duering sent her "over 25 disturbing text messages with no legitimate purpose and a concerning focus on [her] health," reflecting Duering's belief that COVID vaccines had caused Gonda's health problems. She alleged that Duering continued to send her text messages in October 2023, January 2024, April 2024, July 2024, and November 2024….

Gonda's boyfriend, Gustavo D'Amico, was the first witness [at trial]. He testified that he and Gonda arrived at the apartment on September 11, 2023 to find Duering there with a painter—even though Gonda had paid rent through the end of September—and that Duering began "screaming at" D'Amico. D'Amico called the police, and the police "helped handle the situation."

Gonda then testified that, on September 11, 2023, she told Duering not to contact her …. She similarly testified that "after my tenancy ended on September 11th and I, uh—told Mr. Duering to never contact me again, except via my lawyer …." Gonda testified that this exchange took place in person …. Duering, for his part, denied that Gonda told him not to communicate with her….

Gonda testified that Duering's text messages were "always about [her] health" and contained "COVID vaccine … conspiracy theories." She testified that there was no reason for Duering to communicate with her. In cross-examination by Duering, Gonda further testified that she was "concerned and disturbed by the obsessive nature of [his] continued messages towards [her] when there's absolutely no reason for [him] to contact [her]."

Free Speech Harassment

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An excerpt from the long majority opinion (by Judge Andrew Brasher, signed by eight judges) yesterday in HM Florida-ORL, LLC v. Governor:

This appeal is about the constitutionality of Florida's Protection of Children Act. The Act makes it a misdemeanor to "knowingly admit a child to an adult live performance."

The Act defines an "adult live performance" as a live performance that depicts "nudity, sexual conduct, sexual excitement, or specific sexual activities [as defined], lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts" and meets three additional criteria. The three additional criteria are that the performance "[p]redominantly appeals to a prurient, shameful, or morbid interest," "[i]s patently offensive to prevailing standards in the adult community of [Florida] as a whole with respect to what is suitable material or conduct for the age of the child present," and "[t]aken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present."

The court held, among other things, that the law isn't unconstitutionally overbroad, because it basically tracked the "obscenity-as-to-minors" standard that the Supreme Court and the Eleventh Circuit had validated:

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8/5/1974: Shortly after the Supreme Court decided United States v. Nixon, President Nixon released the "smoking gun" tape recorded in the Oval office.

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Justice Kavanaugh has used the phrase "interim docket" to refer to the Supreme Court's emergency rulings, as they often set the interim rule while the issue percolates in the lower courts. Sometimes that "interim" can last years.

Such is the case with Griffin v. HM Florida-ORL. A Florida law prohibited restaurants from showing "adult live performances." A federal district court judge issued a universal injunction against the law that applied to the plaintiff, Hamburger Mary's, as well as non-parties. Back in October 2023, Florida asked the Supreme Court to limit the injunction to Hamburger Mary's.

Justices Thomas, Alito, and Gorsuch would have granted that relief, b ut they were in the minority. Justice Kavanaugh, joined almost entirely by Justice Barrett, concurred in the denial of the stay. Kavanaugh explained that the question of the universal injunction was complicated by the overbreadth doctrine. He wrote, "This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation." (I'm sure the parents of children in Florida exposed to drag were comforted by this vehicle problem.) Kavanaugh went further to explain that this issue was "distinct" from the set aside function under APA 706. Remember, this ruling came nearly seven months before CASA. Justice Barrett did not join the footnote about the APA. I discussed the concurrence at some length here. Ultimately, Kavanaugh said "this Court is not likely to grant certiorari on the only issue presented in Florida's stay application." I suppose that finely-parsed statement about cert-worthiness was true, but the issue remained alive.

Over the next three years, Florida's law remained in interim docket purgatory. Today, at long last, the en banc the en banc Eleventh Circuit declared the Florida law as constitutional. Judge Brasher's majority opinion explains:

After additional briefing and with the benefit of oral argument, we are convinced the district court erred in preliminarily en-joining the enforcement of the Act. This is so for two reasons. First, the district court lacked authority to impose a universal injunction that prevented the enforcement of the Act against everyone in Florida. The Supreme Court has held that a so-called "universal injunction" "falls outside the bounds of a federal court's equitable authority under the Judiciary Act," id. at 847, and we see no exception that would apply in this case. Second, Hamburger Mary's was not entitled to even a more limited preliminary injunction to prevent the enforcement of the Act because its claims do not have a substantial likelihood of success on the merits. The Supreme Court of Florida's definition of "lewd" eliminates any overbreadth, and the use of the phrase "age of the child present" does not render the Act unconstitutionally vague. Accordingly, we vacate the district court's preliminary injunction in its entirety.

Judge Grant (who clerked for Justice Kavanaugh), joined by Judge Newsom, would only have decided the First Amendment issue, and not settled the scope of the injunction.

Still, no matter how certain we may be that the district court erred in the scope of its injunction, we should not say so. Because we conclude that the statute is constitutional, any follow-on decision about the district court's earlier injunction is simply advisory.

As a result, only six members of the fourteen-member en banc court decided the question concerning the universal injunction. So the universal injunction issue remains alive.

Now this case liekly goes back to the Supreme Court. Given the sharp split of the en banc court, one would think Justices Kavanaugh and Barrett now see this issue as cert-worthy. As I noted in my recent National Review essay, the clearest indication of change at the Court will be fewer cert denials accompanied by three dissentals.

"Democratic Socialism" is a growing movement on the US political left. Thus, it's important to pay attention to its ideas, and outline where they go wrong. My Cato Institute colleague Alex Nowrasteh recently posted a succinct, but thorough and insightful critique of ten ideas in the Democratic Socialists of America (DSA) platform. DSA is probably the best-known currently active socialist organization in the US. Here's an excerpt:

1. "Under socialism, 'You have no debt. You don't need health insurance. You don't pay a mortgage or have a landlord, because comfortable housing is a human right.'"

There are prices on housing, medicine, food, and energy because these goods are scarce and have alternative uses. "Scarce" means that there are not enough of them to satisfy all demand at a price of zero. Those goods must be produced by people who must be fed, trained, equipped, and persuaded to show up to work. In a free-market economy, workers produce those goods because they are paid to do so, the owners of firms organize production efficiently because their profits depend on it, and the owners of capital sell it to the most profitable firms. All that activity is guided by the incentives and information provided by prices.

Similarly, there are many different uses for these goods. Prices provide a signal and an incentive to producers to decide what to build and to consumers to decide what to buy. Abolishing prices abolishes neither the costs of production nor the choices of consumption. It destroys the information and incentives that tell producers what to make, in what quantity, where, and at what sacrifice of alternatives. No socialist economy has ever solved the problem of efficiently allocating those resources without prices set by market exchange…..

3. "As free market economies fail, they turn to right-wing authoritarianism, but 'if we lived in a classless society and governed ourselves, we could freely build a world without war or poverty.'"

Economic freedom and political freedom are correlated. The Economic Freedom of the World report finds that the freest quartile of economies enjoys average incomes 6.2 times higher than the least free. Incomes for the poorest tenth are 7.8 times higher, and life expectancy is 17 years longer. Denmark, the democratic socialists' favorite exhibit, is nothing of the sort. It ranks ninth in the world for economic freedom, and its prime minister traveled to Harvard to say, "Denmark is far from a socialist planned economy. Denmark is a market economy." The regimes that actually abolished private ownership ran the authoritarian experiment themselves. More than two dozen socialist trials ran over the past century, and every one that collectivized its economy ended in one-party rule. Socialists will often deny that those countries were really socialist because they are selecting on outcomes, but there is a long history of Western socialists celebrating each new socialist government at the beginning of its reign, only to sour on it when the disaster strikes….

The classless society fared no better on its other promises of peace and social harmony. Each trial produced a new ruling class of party officials with better apartments and worse manners than the bourgeoisie they replaced; peace among nations tracks commerce rather than collective ownership,…. Authoritarianism follows the concentration of economic power in the state. That concentration is the DSA's core proposal….

4. "Guarantee universal healthcare at no cost to individuals."

"At no cost to individuals" doesn't include the individuals who will pay for it. The Mercatus Center's Charles Blahous estimated that Medicare for All would add $32.6 trillion in federal costs over 10 years under assumptions favorable to the plan, and the left-leaning Urban Institute put the figure at $34 trillion. That mostly shifts spending from premiums to higher taxes, but the new expanded tax bill would start near a tenth of GDP, grow from there, and exceed what doubling all projected federal individual and corporate income tax collections could cover. And presumably the entire point is to expand health care consumption, which randomized experiments show does little to improve health, so these estimates understate the additional resources such a scheme would require. Single-payer systems also pay with longer wait times, because a monopoly provider whose patients cannot take their business elsewhere doesn't have an incentive to change. England's National Health Service carried 7.3 million waiting cases as of this spring, and the median Canadian patient now waits 28.6 weeks between referral and treatment, triple the wait in 1993.

America's own health care problems cannot be blamed on free markets because the United States does not have a free market health care system. The US government controls 84 percent of health spending through a complex system of tax rules, expenditures, and other mechanisms. That's higher than in 27 out of 38 OECD countries. The share of the US health care sector under government control "is closer to communist Cuba (89%) than the average OECD nation (75%)," according to Michael Cannon of the Cato Institute. The specific portions of national health care systems under direct government control, and the ways they are controlled, vary across countries. American health care is a largely government-run system.

As they say, read the whole thing!

For those interested, Alex is just as tough on right-wing versions of economic statism. See our coauthored article, "The Case Against Nationalism." Nationalist and socialist central planning have much in common.

I previously wrote about "The Perils of Democratic Socialism" (a 2019 post that remains relevant to today's DSA agenda), and more recently about "The Contradictions of Socialist Prison Abolitionism" (which highlights the clash between socialists' coercive economic agenda and the desire of many of them to abolish prisons). In 2024, I wrote about how Venezuela - a nation until recently held up as a model by many Western socialists - exemplifes the dangers of democratic socialism.

Socialism - in the DSA-endorsed sense of government control over all or most of the economy - has led to disaster wherever tried. We are unlikely to make it work much better than the Russians, Chinese, Cubans, North Koreans, and others who came before.

The Fifth Circuit has launched a new design for its website. I love the glow-up!

Here is the before design (courtesy the Internet Archives):

And here is the after design.

The home page now indicates which cases are currently being argued, as well as links to the latest opinions.

The Opinions page also has a full text search, which seems to work quite well. I also like the calendar feature, which neatly displays which cases are being argued in which courtrooms at which times.

Congratulations to everyone involved with the renovation, especially Clerk extraordinary Lyle W. Cayce who will soon be retiring after a distinguished career.

We've been publishing for five years now, and have published 150 articles. You can see new articles by following us on Twitter (@JournalSpeech), using our RSS feed, or subscribing to our email updates at journalspeech.substack.com.

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In Doe v. Jones, decided yesterday by Judge Thomas Durkin (N.D. Ill.), Doe sued her ex-boyfriend Jones for surreptitiously videorecording their sexual acts, and some friends of Jones' for soliciting and further distributing the videos. The court allowed those claims to go forward, but it rejected Doe's further claims against Jones's parents as owners of the home where some of the behavior took place.

Here's the court's analysis as to intentional infliction of emotional distress claim:

Doe does not allege that the Homeowners engaged in any conduct that could feasibly be considered extreme and outrageous. In fact, the only specific conduct she alleges from either parent is that Jennifer contacted Doe to express her "devastation" for Doe and her "disappointment in [her son]'s actions." That is not a tort.

Doe's conclusory allegation that the Homeowners "knew or should have known" that their son was engaged in tortious conduct on his private cell phone lacks any plausible factual support. Doe argues that Jones Sr.'s role as a police officer means he would have extensive knowledge of criminal sexual assault and nonconsensual recording and disseminating videos. While that may be true, that alone certainly does not indicate he is automatically privy to the alleged illegal conduct of a third party. Doe has failed to plausible allege a claim of IIED against Jones Sr. and Jennifer. In fact, it is not even close.

The court held the same as to negligent infliction of emotional distress:

Free Speech Torts Privacy

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From Friday's Connecticut Supreme Court decision in Tov Realty LLC v. Suarez:

The record and the representations to this court at the show cause hearing explain the facts concerning the relevant filings.

Attorney Gottlieb initially used LexisNexis to conduct the legal research necessary to draft his public interest appeal applications and the briefs that followed. He verified the accuracy of the quotations and citations in the initial rough drafts using the Shepard's Citations Service on LexisNexis.

He then copied and pasted those drafts into ChatGPT, a generative AI program, to make his brief writing process more efficient and to improve the quality of the final written product. Unbeknownst to Attorney Gottlieb, the drafts produced by ChatGPT added new case citations or altered existing case citations, making the final documents filed in this court inaccurate and misleading.

AI in Court

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Some excerpts from Thursday's long decision in Zafar v. Saghier, by Texas Court of Appeals Justice Wade Birdwell, joined by Justices Mike Wallach and Brian Walker:

Appellant Sunbal Zafar claimed that her fellow doctor, Appellee Sadaf Saghier, hit her in the nose at the medical practice where they worked, and she reported the alleged assault to the Texas Medical Board and to the police. But the Texas Medical Board dismissed Zafar's complaint, and although the police initially arrested Saghier for felony aggravated assault, the district attorney's office later reduced and then dismissed the criminal charges against Saghier.

So, when Zafar sued Saghier for civil damages for the alleged assault, Saghier counterclaimed for malicious prosecution and intentional infliction of emotional distress. The jury sided with Saghier and awarded her $1 million in compensatory and exemplary damages.

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From Meeks v. State, decided Thursday by the Oklahoma Court of Criminal Appeals, in an opinion by Judge Scott Rowland:

[Meeks was found guilty of Stalking After Actual Notice of Protective Order and was sentenced] to five years imprisonment in accordance with the jury's verdict. Judge Campbell ordered Meeks to serve three years in prison, suspending the last two years of the sentence as well as the $10,000.00 fine….

[Meeks] asserts that posting a video rant about his ex-wife was protected speech under the First Amendment and that the stalking statute cannot be used to prosecute him for posting it. The State responds that his prosecution is not based upon the content of his message, but rather on the act of posting it on YouTube, and that such conduct integral to criminal activity enjoys no First Amendment protection. This is an interesting constitutional question, but one we need not settle in this case[, because] … the evidence is insufficient to sustain his conviction ….

This case involves a nearly 40-minute YouTube video posted by Meeks in May 2023 { titled "one_reason_men_shouldn't_get_married"} that was forwarded to his ex-wife by her boss…. [In the] video, Meeks referred to [his ex-wife] and her children by name multiple times but made no threats. Nevertheless, she testified that Meeks "said horrible things about our children" and that she felt threatened, intimidated, and harassed….

{Oklahoma's anti-stalking statute provides in pertinent part:

Free Speech Harassment

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The Volokh Conspiracy

Harmeet Dhillon on Distinguishing Between Protected Speech and Actionable Discriminatory Conduct

The Justices Should Hold Regular Press Conferences

"This Direct Monetization of Prior Government Service Is Beyond the Pale"

VDARE's Libel Case Against N.Y. Times Thrown Out

"After the Hallucination: What 100 Recent Cases Reveal About Candor, AI Errors, and Sanctions"

My New Dispatch Article on Trump's Section 301 "Forced Labor" Tariffs

Stop-Talking-to-Me Order Against Ex-Landlord Who Kept Texting Ex-Tenant About COVID Vaccines

Eleventh Circuit En Banc Upholds Florida Ban on Knowingly Admitting Minors to Obscene-as-to-Minors Performances

Today in Supreme Court History: August 5, 1974

Open Thread

The En Banc 11th Circuit Granted Relief In Drag Show Case Where Justices Kavanaugh and Barrett Did Not

Alex Nowrasteh on "Ten Democratic Socialists of America (DSA) Arguments for Socialism and Why They're Wrong"

The Fifth Circuit Websites Gets A Glow-Up!

Subscribe to the Journal of Free Speech Law

No Liability for Parents Over Their Son's Surreptitiously Recording Sex Acts in Their Home

ChatGPT Editing Adding Hallucinations to Otherwise Accurate Material?

~$550K Award Related to Doctor's Allegedly False Accusation of Nose Punch by Colleague

Oklahoma Anti-Stalking Law Bars Certain Unwanted Speech to Target, not Speech About Target

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For America's 250th, Get 2 Years of Reason for $17.76