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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Eighth Circuit Suspends Inunction Related to Federal Immigration Enforcement in Minnesota
From the opinion by Judges Bobby Shepherd and David Stras in Tincher v. Noem:
The district court entered a preliminary injunction with respect to federal immigration-enforcement operations in Minnesota. The injunction is unlikely to survive the government's … appeal, so we stay it pending a final decision in this case.
Six individuals who have "observed" and protested Operation Metro Surge, the ongoing immigration-enforcement effort in the Twin Cities, sued on behalf of "[a]ll persons who do or will in the future record, observe, and/or protest against" it. The preliminary injunction covers all of them and limits what federal agents who take part in the operation or respond to the protests can do while carrying out their official duties. Included in the district court's order are prohibitions on "[r]etaliating against" anyone "engag[ed] in peaceful and unobstructive protest activity" and stopping vehicles without "reasonable articulable suspicion that [the occupants] are forcibly obstructing or interfering with" immigration-enforcement activities.
For at least two reasons, the government has made "a strong showing" that its challenge to the injunction "is likely to succeed on the merits." First, the grant of relief to such a broad uncertified class is just a universal injunction by another name. See Trump v. CASA, Inc. (2025) (holding that "federal courts lack authority to issue them"). Even if "courts may issue temporary relief to a putative class," this one has no chance of getting certified. A.A.R.P. v. Trump (2025). And overlooking the difficulties of certification, as the Supreme Court did in A.A.R.P., is not necessary "to preserve our jurisdiction." …
We accessed and viewed the same videos the district court did. What they show is observers and protestors engaging in a wide range of conduct, some of it peaceful but much of it not. They also show federal agents responding in various ways. Even the named plaintiffs' claims involve different conduct, by different officers, at different times, in different places, in response to different behavior. These differences mean that there are no "questions of law or fact common to the class" that would allow the court to decide all their claims in "one stroke."
The Voting Rights Act Asymmetry Splices Staten Island
In New York City, Republicans are the discrete and insular minority.
Staten Island was a curious place to grow up. Though it is one of the five boroughs of New York, culturally, it felt very different. And politically, it is a different world. Staten Island has consistently voted for Trump and other Republican candidates, even as the rest of New York sprints down the road to Democratic Socialism serfdom.
From a perspective of geography, Staten Island is also unique. There are several bridges that connect Staten Island: three go to New Jersey, and one, the Verrazzano-Narrows Bridge, goes to Brooklyn. (Fun fact: you only pay the toll when you enter Staten Island, not when you leave.) The Staten Island Ferry connects Staten Island with lower Manhattan. (There are some other smaller ferries that connect to different piers in Manhattan.)
How should congressional representation for Staten Island work? Well, its population is not high enough to justify its own district. So for the past four decades, Staten Island's congressional district has included parts of Brooklyn (mostly Bay Ridge). That move made sense as a matter as geography, as it was the only contiguous land mass that Staten Island was connected to.
But Marc Elias had other ideas. As I wrote in October, Elias filed suit in state court, arguing that New York's maps dilute the votes of black and Hispanic voters in Staten Island. Elias argues this dilution violates the New York Voting Rights Act. His preferred map would form a single congressional district out of Staten Island and parts of lower Manhattan, including the financial district and the West Village. Again, there is no contiguous natural or manmade connection between Staten Island and Manhattan. There is only a ferry service that travels between the spots. (You can also take a lengthy bus ride that goes through Brooklyn or New Jersey.)
Of course, the upshot of this suit is that the only Republican district in New York City would vanish. This is the Voting Rights Asymmetry. The law only helps Democrats at the expense of Republicans. None of these regimes are about racial discrimination, especially in a deep blue state that will likely never elect another Republican statewide in my lifetime.
Alas, a trial court has agreed with Elias's case. The Wall Street Journal has this editorial, titled Democrats Try to Steal Staten Island.
"Express Advocacy at 50," by Allison R. Hayward
"Do you believe in magic words?"
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Allison R. Hayward, who is now a Board member of the Foundation for Individual Rights and Expression (FIRE), and has served as the Head of Case Selection for the Facebook Oversight Board, Commissioner on the California Fair Political Practices Commission, Co-Chair of the Board of the Office of Congressional Ethics, and Vice President of Policy at the Center for Competitive Politics (now the Institute for Free Speech):
Pity (for a second) the Supreme Court in Buckley v. Valeo. Presented with a multifaceted challenge to the ambitious and bloated 1974 amendments to the Federal Elections Campaign Act (FECA 1974), the Justices heard oral arguments on November 10, then met and corresponded over the 1975 holiday season to produce a decision that would land well before the 1976 election. This statute raised constitutional issues beyond its First Amendment implications, but I'll focus on its speech-restrictive aspects.
One key Buckley holding is the express advocacy standard. Briefly, express advocacy was Buckley's interpretation of the FECA 1974 provision limiting independent expenditures to $1,000 per year. The Court observed that the statute's description of such an expenditure as "relative to a clearly identified candidate" was unconstitutionally vague. As a fix, the Court interpreted the phrase to reach "only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Helpfully, the Court added in a footnote (likely at the suggestion of Justice Brennan) "communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject." This litany has been derisively called "magic words" by detractors. It was obviously a refinement to the statute made by judges—not legislators.
The Court interpreted the clause to save it from unconstitutional vagueness, but then held that the $1,000 independent expenditure limit was itself unconstitutional. In part, this was because the narrowing construction made the limit ineffective. That might prompt someone to wonder whether the Court's redrafting of the statute (as opposed to declaring it unconstitutionally vague and leaving the wordsmithing to Congress) was sound. But such restraint would have thrown key provisions of campaign law into flux for the 1976 election. Yes, the Court should resist the temptation to write law. In practice, however, the Court provided the answer that political actors needed in January 1976.
Did "express advocacy" apply only to a now moot expenditure limit? Not so fast. "Expenditures" also trigger reporting requirements. The definition needed narrowing there, too. For spenders who are not political committees or candidates, the Court affirmed FECA's independent expenditure reporting requirements, but only if limited to expenditures containing express advocacy.
Arab-American Muslim Woman's Discrimination Claim Can Go Forward Over Cancellation of Law Firm Job Offer for Statements Related to October 7 Actions
From Judge Sharon Johnson Coleman (N.D. Ill.) today in Chehade v. Foley & Lardner, LLP:
[O]n October 7, 2023, … [Jinan Chehade, a Muslim woman of Arab descent,] shared this message on social media:
"As you see Palestine in the news, keep two things in mind:
- Colonization is inherently violent. Occupation is violent. Israel's existence was brought about by violence. Never equate the violence of the oppressed with that of the oppressor. The colonized with the colonizer.
- If you support Palestine understand that necessitates supporting our right to defend ourselves and liberate our homeland by any means necessary. The colonizing power determined what was necessary when they colonized us by force and continue to genocide Palestine. You cannot claim to stand with Palestine if you prefer us to be slaughtered without fighting back. Freedom has only ever been achieved through resistance.
#FreePalestine #WithinOurLifetime"
Chehade made further remarks at a public meeting of the Chicago City Council on October 11, 2023. At the City Council meeting, Chehade opposed a resolution condemning the Hamas attack, which she explained was "completely one-sided and made no mention of Palestinians." She said:
"The Western Zionist controlled media machine would have you believe that this was an unprovoked attack. However, this is the natural response to 75 years of occupation, such that this resistance is a legal right for the Palestinian people according to international law… I'm sorry the people of Gaza did not sit quietly."
Chehade was scheduled to start her position at Foley on October 23, 2023. The week before, on October 16, a Legal Recruiting Assistant at Foley named Ayesha Karim searched for Chehade online. She claimed that she needed to find a photo of Chehade for Foley's "2023 New Associate Directory." Karim came across Chehade's statements and brought them to the attention of Amy Moynihan, Foley's Director of Legal Recruiting. Later that day, Moynihan wrote to a group including Foley's Chairman and CEO, Daljit Doogal; former Managing Partner, Stanley Jaspan; Chair of Foley's National Recruiting Committee, Robert Scher; and Chief Talent Officer, Jennifer Patton.
SCOTUS Summarily Reverses Fourth Circuit, Justice Jackson votes to deny writ of certiorari without opinion
KBJ's dissent from the grant of certiorari, without a written opinion, is fairly rare.
Today the Court summarily reversed the Fourth Circuit in Klein v. Martin, an AEDPA case. As Jon Adler noted, the Fourth Circuit may be the new Ninth Circuit for habeas. But the vote here was not unanimous. Justice Jackson would not have granted the writ, though she did not include an opinion explaining her reasoning. She only offered a single sentence:
JUSTICE JACKSON would deny the petition for a writ of certiorari.
There is a long-running debate about how many votes are needed for a summary reversal. Is it five or six? Here, as many as three other justices might have agreed with Jackson, and not noted their vote, but I think it unlikely.
I did a quick search for summary reversals, where there is not some intervening merits decision, and where a Justice would deny the writ without a published opinion. There are only a few examples from the Roberts Court.
- Box v. Planned Parenthood of Indiana & Kentucky, Inc., 587 U.S. 490, 493, 139 S. Ct. 1780, 1782, 204 L. Ed. 2d 78 (2019) ("Justice SOTOMAYOR would deny the petition for a writ of certiorari as to both questions presented.")
- Sears v. Upton, 561 U.S. 945, 956, 130 S. Ct. 3259, 3267, 177 L. Ed. 2d 1025 (2010) ("THE CHIEF JUSTICE and Justice ALITO would deny the petition for a writ of certiorari.").
- Erickson v. Pardus, 551 U.S. 89, 95, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) ("Justice SCALIA would deny the petition for a writ of certiorari.").
- Los Angeles Cnty., California v. Rettele, 550 U.S. 609, 616, 127 S. Ct. 1989, 1994, 167 L. Ed. 2d 974 (2007) ("Justice SOUTER would deny the petition for a writ of certiorari.").
There were a number of dissents with an intervening precedent, and a Justice disagreed with the GVR, but did not issue an opinion. Justices Thomas and Gorsuch cast several such voters after Ramos.
Journal of Free Speech Law: "Gitlow Revisited: Disentangling Ideas and Crimes Via the Harm Principle," by Ronald Krotoszynski
The final article from the "Gitlow v. New York at 100" symposium, held last year at the Arizona State University Sandra Day O'Connor College of Law.
The article is here; some excerpts from the Introduction:
An enraged King Henry II famously asked several of his barons, while the court met in Normandy at Christmas in 1170, "Will no one rid me of this turbulent priest?!" King Henry was referring, of course, to Thomas Becket, the incumbent Bishop of Canterbury and head of the Roman Catholic Church in England. Becket had steadfastly insisted on preserving the independence of the ecclesiastical courts and authority over bishopric appointments (much to King Henry's dismay). Subsequently, four of these same barons went from Normandy, in France, to Canterbury, in England, and proceeded to assassinate Becket, on December 29, 1170, while he was conducting a prayer service in Canterbury Cathedral. The perpetrators (shockingly) escaped the king's justice. Perhaps Becket received some small justice, however, when Pope Alexander III proclaimed him a martyr and saint on February 21, 1173.
Could Henry II's musing, consistent with the requirements of the First Amendment, serve as a basis for criminal charges in the contemporary United States? On a first cut, one might answer this question negatively. After all, Henry II was in France; Becket was in England. His speech could not have produced an "imminent" threat to Becket's safety. On the other hand, the barons who assassinated Becket did so only four days after Henry II pondered aloud his abstract desire to be rid of "this turbulent priest"—which, for the Middle Ages, constitutes a rather rapid response.
Even if Henry II might not be on the hook for criminal incitement charges, which under the Brandenburg test require both a clear call to unlawful activity and circumstances in which the speaker's audience would likely act on the suggestion of unlawful action, a clever prosecutor in today's United States could evade the Brandenburg rule entirely through the expedient of charging Henry II with solicitation or conspiracy (rather than incitement). Would the First Amendment preclude solicitation charges on these facts? Or, for that matter, conspiracy charges? Moreover, should changing the criminal charges fundamentally affect the governing First Amendment analysis?
Current free speech doctrine offers a less than clear answer—but most likely solicitation charges would stand up against a Free Speech Clause challenge. The controlling Supreme Court precedent on point, Williams, decided in 2008, seems straightforwardly to hold that proposing a criminal action enjoys absolutely no First Amendment protection. The Supreme Court doubled down on this approach in 2023, in Hansen, holding that "[s]peech intended to bring about a particular unlawful act has no social value; therefore it is unprotected [under the First Amendment]."
"Life Without Buckley v. Valeo," by John Samples
"How the decision did and did not change the world."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by John Samples, a former Vice President at the Cato Institute and currently a Member of Meta's Oversight Board:
In the late 1960s, the U.S. Congress began enacting campaign finance regulations. The reasons for those regulations are not hard to discern. In 1968, Eugene McCarthy, an anti-war challenger supported by a small number of large donors, effectively drove Lyndon Johnson from the presidency; a populist from the right did well, though short of securing the Democratic nomination. Richard Nixon narrowly defeated Hubert Humphrey by raising and spending what seemed to be, at the time, huge sums of money.
By limiting spending on campaigns, Congress sought to restrict competition and protect the political status quo. Spending limits would make it difficult to spend enough money to effectively challenge congressional incumbents. The equality of spending implicit in the presidential public financing scheme headed off a growing Republican advantage in presidential fundraising. And contribution limits further complicated challenging the status quo by making it harder to raise money.
Buckley v. Valeo considered how far election campaigns could be regulated and restrained under the First Amendment. As we know, the Buckley Court's answer was mixed: the government interest in preventing corruption or "the appearance of corruption" validated contribution limits. Public education fostered more speech, thereby educating the public. But the Court rejected spending limits as a limit on speech, and equality of spending as a justification for campaign finance regulation. The Court also upheld mandated disclosure of donors and donations.
What were the effects of Buckley? My answers to that question depend on two assumptions.
Is the Fourth the New Ninth? - 2026 Update
Another summary reversal of a Fourth Circuit AEDPA decision.
This morning, the Supreme Court summarily reversed a decision of the U.S. Court of Appeals for the Fourth Circuit in Klein v. Martin, concluding the Fourth Circuit failed to comply with the Anti-Terrorism and Effective Death Penalty Act (AEDPA) when (in an unpublished opinion), it awarded a new trial for Charles Brandon Martin. The decision was 8-1, as Justice Jackson dissented without issuing an opinion.
The Court's per curiam opinion in Klein explains the basis for the reversal:
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), strict standards govern the grant of federal habeas relief to prisoners convicted in state court. Faithful application of those standards sometimes puts federal district courts and courts of appeals in the disagreeable position of having to deny relief in cases they would have analyzed differently if they had been in the shoes of the relevant state court. But federal courts are dutybound to comply with AEDPA, and we have granted summary relief when the lower courts have departed from the role AEDPA assigns. See, e.g., Clark v. Sweeney, 607 U. S. ___ (2025) (per curiam); Dunn v. Reeves, 594 U. S. 731 (2021) (per curiam); Mays v. Hines, 592 U. S. 385 (2021) (per curiam); Virginia v. LeBlanc, 582 U. S. 91 (2017) (per curiam); White v. Wheeler, 577 U. S. 73 (2015) (per curiam).
This is such a case. Respondent Charles Brandon Martin was convicted in a Maryland court for the attempted murder of one of his girlfriends, Jodi Torok. The evidence against him was strong, his conviction was affirmed on appeal, and an appellate court held in a state postconviction proceeding that the State's failure to disclose certain impeachment evidence that was favorable under Brady v. Maryland, 373 U. S. 83 (1963), did not warrant a new trial because there was no "reasonable probability that the result of [the] trial would have been different" had the evidence been turned over. App. to Pet. for Cert. 115a (App.); see Kyles v. Whitley, 514 U. S. 419, 434 (1995) (the "touchstone of materiality is a 'reasonable probability' of a different result"). Because that decision neither was "contrary to" nor "involved an unreasonable application" of "clearly established Federal law," AEDPA required the denial of Martin's federal habeas petition. 28 U. S. C. §2254(d)(1). Yet the Court of Appeals for the Fourth Circuit affirmed the award of a new trial based on reasoning that departed from what AEDPA prescribes. We therefore grant the State's petition for a writ of certiorari and reverse.
This is the second time this term the justices have summarily reversed a habeas decision from the Fourth Circuit. It summarily reversed in Clark v. Sweeney in November. As I noted at the time, there were reasons to think that the Fourth Circuit would be replacing the U.S. Court of Appeals for the Sixth Circuit as the "new Ninth." Two summary reversals in habeas cases in a single term would seem to confirm the hypothesis, particularly as they come on the heels of the Fourth Circuit's 0-8 record from last term.
While the jurisprudential orientation of the Fourth Circuit may be at odds with that of the Supreme Court, there are also signs that the Fourth Circuit's judges are making an effort to follow the Supreme Court's lead. See, for instance, the recent unanimous panel opinion in The Sustainability Institute v. Trump, in which the court vacated district court injunctions barring the Trump Administration from terminating or suspending environmental and agricultural grants to nonprofit organizations. Judge Rushing's opinion for the panel in Sustainability Institute was joined by Judges Niemeyer and Heytens. (Judge Heytens had also joined the opinion below in Klein, while Judge Niemeyer dissented.)
Is Clark a sign of more reversals to come? Or does Sustainability Institute indicate the Fourth Circuit will come into line? Stay tuned.
Court Upholds "Harassment Restraining Order" Requiring Removal of Alleged Libel + Restricting Future Posts About Plaintiff
From B.P. v. A.Z., decided last week by the California Court of Appeal, in an opinion by Justice Martin Buchanan, joined by Justices Judith McConnell and Julia Kelety; note that the upheld order isn't limited to defamation, and indeed bans future postings even if they aren't defamatory (unless they "concern[] [A.Z.'s] personal observations regarding [B.P.]"):
A.Z. appeals from an order granting B.P.'s request for a civil harassment restraining order (CHRO) on behalf of himself and his spouse P.I…. The dispute apparently originated from two other cases, one in which B.P. [an attorney] represented a party who sued A.Z. in a consumer fraud matter relating to her sales of German Shepherd puppies, and another in which A.Z. sued B.P. for defamation for accusing her of being an "animal abuser." …
A.Z. did not file a response to the CHRO request and did not appear at the … hearing…. According to the minute order, B.P. and P.I. appeared with two witnesses. After hearing testimony and reviewing exhibits, Judge [Rebecca] Zipp granted a three-year CHRO against A.Z. and imposed personal conduct and stay-away orders and a prohibition on possession of firearms, ammunition, and body armor.
Judge Zipp also ordered A.Z. to remove certain internet postings and explained this portion of her order as follows: "A court may restrain speech the court has adjudicated as unlawful, harassing, or defamatory. [¶] … [¶] [A.Z.]'s creation of the yelp web page for [B.P.] Law Office, as well as her posts about [B.P.] on [AZ].org constitute a knowing and willful course of conduct directed at [B.P.] that seriously alarms, annoys, and/or harasses him. These pages serve no legitimate purpose. I find that [A.Z.] created these sites and pages specifically to disseminate defamatory statements about [B.P.], and that [A.Z.] did use them solely to disseminate defamatory statements about [B.P.]. [¶] [A.Z.] is ordered to remove these postings within 24 hours of being served with the court's civil harassment restraining order. [¶] [A.Z.] is further ordered to desist from posting additional content online regarding [B.P.], including his likeness, for the duration of the order, unless such content concerns her personal observations regarding [B.P.]. [A.Z.] is prohibited from making knowingly false statements about her legal matters involving [B.P.]." …
Expert Evidence on PTSD as to Damages in Defamation Cases
From yesterday's decision by Chief Magistrate Judge Raymond E. Patricco (D. Idaho) in Scofield v. Guillard; note that compensatory damages in libel cases can generally extend not just to "impairment of reputation and standing in the community" but also to "personal humiliation[] and mental anguish and suffering":
This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleges that, despite never meeting any of these students or being involved with their murders in any way, Defendant Ashley Guillard posted numerous TikTok (and later YouTube) videos falsely claiming that Plaintiff (i) had an extramarital, same-sex, romantic affair with one of the victims; and then (ii) ordered the four murders to prevent the affair from coming to light. [Guillard's claims were based on her supposed psychic powers. -EV]
Plaintiff sent cease-and-desist letters to Defendant in the following days and weeks. When Defendant did not stop, Plaintiff initiated this action….
The court granted summary judgment for plaintiff and held that she could recover punitive damages. A jury trial on damages is scheduled for late February, and the court allowed expert testimony from plaintiff's treating mental health counselor:
Ms. Bohn is a licensed mental health counselor with a Master of Arts degree in counseling psychology and more than three decades of experience providing psychotherapy and behavioral health treatment. She began treating Plaintiff in May 2023 and has met with her regularly since that time. Based on her training, clinical experience, and longitudinal treatment of Plaintiff, Ms. Bohn diagnosed Plaintiff with post-traumatic stress disorder ("PTSD") and opines that Plaintiff will require ongoing mental health treatment into the future.
Suit by Jewish UCLA Students, Professor, and Chabad Rabbi Against Pro-Palestinian Encampment Organizers Can Go Forward
From Tuesday's decision by Judge Mark Scarsi (C.D. Cal.) in Weinberg v. Nat'l Students for Justice in Palestine; recall that the factual claims at this point are just allegations, and the court concludes only that, if the allegations are found to be true, plaintiffs could prevail:
According to the first amended complaint, in the wake of Hamas's October 7, 2023, terrorist attack on Israel and Israel's subsequent war in Gaza, a wave of protests and demonstrations swept the United States. Defendant NSJP, a "nationwide membership association," launched the Popular University for Gaza movement, an initiative which involved a "coordinated pressure campaign against university administrations and trustees" through the establishment of "autonomous zones on … university campuses."
One such protest was at UCLA. On April 25, 2024, less than one week after NSJP launched the Popular University for Gaza movement, UCLA's chapter of NSJP "in collaboration with UC Divest …, People's City Council, and a host of similar organizations," created a "fortified encampment" near UCLA's Royce Quad. According to an anonymous organizer, participants "amassed a large quantity of scrap wood and pallets to assemble barricades" and "erect[ed] a fortified camp out of the dust." Protestors formed specialized teams dedicated to providing logistical support, medical care, and security, as well as interfacing with the media. Organizers "limited entry [into the encampment] to only two zones, and established a complex check-in, wristband, and vouching system" enforced by "teams of armed members of the encampment and 'human phalanxes.'" On April 28, protestors expanded the encampment's perimeter to purportedly "use the walls of the adjacent buildings to [their] advantage" and amplify the encampment's disruptive effect to the broader campus.
The encampment and surrounding areas allegedly included a great deal of antisemitic imagery. (See, e.g., [Complaint] ¶ 98–100 (detailing antisemitic imagery on and around the encampment, including a "van festooned with Swastikas" parked outside the encampment "blaring antisemitic propaganda").) There were also numerous reports of violence and threats of violence directed at Jewish members of the community throughout the duration of the encampment.
Protestors also purportedly physically prevented Jews from entering the encampment. The following day, campus police announced their intent to clear the encampment. In response, protestors "collected gas masks, handed out goggles and helmets, and prepared to hold [their] ground." That night, when law enforcement attempted to clear the encampment, protestors and police clashed in a drawn-out confrontation. Eventually, in the early morning hours of May 2, law enforcement cleared the encampment. Organizers attempted to reestablish the encampment several times, including on May 6 and June 10. Each claims he was injured as a result of the encampment.
Professor Hoftman alleges he was assaulted by members of the encampment's security team on April 29 because he was Jewish. Mr. Weinberg claims that he avoided the Royce Quad area for the duration of the encampment after hearing reports of violence and threats of violence aimed at Jews. Prior to the encampment, Mr. Weinberg "often would walk through the Quad."
Mr. Tsives alleges that he would regularly show up to the encampment "dressed in a manner that made clear that he was Jewish, including wearing a visible Star of David necklace," and attempt to pass through one of the encampment's "checkpoints." Each time, he was either "physically blocked" at the point of entry by the encampment's security team or was "surrounded and forced out of the area by a 'human phalanx.'" Eventually, Mr. Tsives had to take a longer route to get to his classes. Rabbi Gurevich claims he was verbally threatened on June 10 "[w]hen the same core of organizers attempted to reestablish an encampment near the UCLA law school." A member of the new encampment's security team "slapped Rabbi Gurevich's phone out of his hand."
The court allowed plaintiffs' claims for civil rights conspiracy under 42 U.S.C. § 1985(3) to proceed, concluding that plaintiffs had adequately alleged "anti-Jewish violence and exclusion":
Today in Supreme Court History: January 26, 1832
1/26/1832: Justice George Shiras Jr.'s birthday.
Open Thread
What’s on your mind?
Second Amendment Roundup: Four Points on the Wolford Argument
Comments by Akhil and Vikram Amar in Scotusblog.com are off base.
In a recent article in Scotusblog.com, Akhil and Vikram Amar attempt to answer four concerns raised in the Justices' questioning in oral argument in Wolford v. Lopez. However, at each turn in their defense of the Hawaii law, their answers fall flat.
First, the Amars address the concern that Hawaii treats the Second Amendment as a second-class right. The Justices probed Neal Katyal's position, questioning whether the government could presumptively ban speech on private property without the property owner's express approval. The Amars respond that the First and Second Amendments are simply different. They state that violent felons may be stripped of Second Amendment rights, but they retain their First Amendment rights. But this answer ignores the fact that after Bruen, any difference between the First and Second Amendments must be rooted in history. While disarming violent felons may have that pedigree, Hawaii's law does not.
Furthermore, there are examples of people losing all their rights, both to free speech and to bear arms, based on a determination of physical danger. Violent felons have both their speech and firearm rights curtailed while in prison, for example, and probation conditions may limit their freedom of association with certain people, such as gang members. So that example, if anything, proves that Hawaii treats the Second Amendment as a second-class right.
The Amars' claim also makes a faulty assumption that the mere carrying of a firearm is dangerous, while speaking can never be. Speech that incites a riot or other violence certainly is. They state that "obviously, an activist sporting a campaign button while seated at a restaurant table – or while standing on a homeowner's front porch, for that matter – is utterly different from an activist toting a gun in these very same privately owned spaces."
But Hawaii only presumptively bans carrying by a concealed carry permit holder. These are people that the state has already determined to be peaceful, law-abiding citizens who should be able to carry a concealed firearm. There is nothing inherently dangerous about carrying a firearm, and as John Lott has demonstrated, concealed carry permit holders are extremely law-abiding, being convicted of violent crimes even less frequently than off-duty police officers. And it beggars belief to think that the violent criminals who are dangerous with firearms will be affected at all by Hawaii's law. They surely are not going to be asking property owners for permission before carrying guns anywhere, regardless of the rules. It is worth recalling the words of Cesare Beccaria, who so influenced the Founders, in Crimes and Punishments (1764):
The laws that forbid the carrying of arms … disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary [laws], which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty … and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
Finally, while comparisons are being made between First and Second Amendment rights, it is worth recalling Chief Justice Robert's statement during the Heller oral argument: "I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?"
Second, the Amars respond to the justices' questions about whether Hawaii flips the default rule for any other activity. They argue that surely the state could require affirmative consent to bring liquor, marijuana, or trash onto private property open to the public. They contend that it is irrelevant that the Constitution mentions firearms, because Hawaii's law is best understood as a property law. This answer ignores the fact that drinking, pot smoking, and throwing away trash are not fundamental rights, but keeping and bearing arms is.
Nor is it an answer to say that this is a property law. Hawaii singles out firearms for special treatment, criminalizing "arms-bearing conduct" protected by the Second Amendment. What is more, the claim that Hawaii is simply trying to empower property owners is belied by the fact that there are several types of private property where Hawaii bans the carrying of guns by permit holders altogether, regardless of the property owners' wishes, such as beaches, parks, medical facilities, and entertainment venues. Thus, if an owner of any location designed by Hawaii as a "government-mandated gun free zone" desired to permit firearms on his property, he would be denied the option to do so. So much for Hawaii's protection of a property's "right to choose" whether to allow firearms on his property.
Claiming that Hawaii's law is merely a property regulation also fails to answer the Chief Justice's hypothetical about politicians soliciting votes. It would be a clear violation of the First Amendment to presumptively prohibit candidates from walking up to someone's door to ask them for their vote. That law would not be saved because it incidentally implicates property law considerations. Similarly, the state cannot presumptively prohibit the exercise of the constitutional right to bear arms on private property. To make such a distinction between the First and Second Amendments would make the Second Amendment a second-class right.
Third, the Amars resist the conclusion that the 1865 Louisiana law that Hawaii and the Ninth Circuit rely on was part of the Black Codes. They assert that because the Reconstruction Congress permitted Louisiana back into the Union with that law on the books, it was clearly racially neutral. And while it is true that the text of the Louisiana law is race-neutral, it was invidiously discriminatory in its purpose and application. As the National African American Gun Association and the Firearms Policy Coalition point out in their respective amici briefs, the law, while formally race-neutral, sought to restrict the ability of freedmen from carrying firearms for self-defense and to hunt so that they would be forced to resort to sharecropping. Until the Civil War, persons could hunt, fish, and forage on private land so long as it was not enclosed or improved.
In 1865, Louisiana ended this regime because plantations relied on cheap, Black labor, to maintain their property in a post-slavery world. If freedmen could carry guns for self-protection, they could protect themselves from unlawful force. If freedmen could hunt or fish for their sustenance on undeveloped private property, that would eliminate any need for those people to work as sharecroppers for the former slave owners. While this law was race-neutral on its face, racial animus motivated it. Hence why a Reconstruction-era congressional report on The Condition of the South criticized the law for "depriving the great mass of the colored laborers of the State of the right to keep and bear arms, always zealously prized and guarded by his white employers."
It's also worth mentioning that the correct time period for assessing historical regulations that delimit the Second Amendment right is the Founding era around 1791, and not the post-Civil War Reconstruction era when the 1865 law was enacted.
Fourth and finally, the Amars respond to a question from Justice Kavanaugh about how many other states have similar laws. The Amars assume that Justice Kavanaugh will vote to strike down any gun law he deems to be a current outlier, and thus state that the Court should not look at how many states have this law now, but rather prognosticate as to how many states might have this law should the Supreme Court uphold it.
But whether a modern-day law is currently an outlier is irrelevant. What matters is that Hawaii's law fails Bruen's history and tradition test. Even if 30 more states implemented the exact same law, it would be just as unconstitutional. As the Chief Justice noted in Espinoza v. Montana Department of Revenue (2019), 30 states passing similar laws in the late 19th century does not provide a gloss on the meaning of the First Amendment. Surely then, a smattering of states passing laws in the 21st century similarly have no relevance to the original public meaning of the Second Amendment. The lawful authority of states to be laboratories of democracy stops where the Bill of Rights starts.
Today in Supreme Court History: January 25, 1819
1/25/1819: Thomas Jefferson charters the University of Virginia. 176 years later, the Supreme Court would decide Rosenberger v. Rector and Visitors of the University of Virginia (1995).
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No Detention Hearing or Bail Required for Two Women Charged with Disrupting St. Paul Church Service
From Judge Laura Provinzino (D. Minn.) yesterday in U.S. v. Levy-Armstrong:
Defendants … were charged by criminal complaint with conspiracy against rights in violation of 18 U.S.C. § 241. That statute makes it illegal for two or more people to "conspire to injure, oppress, threaten, or intimidate any person" in the "free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." {The statute provides for a $250,000 fine and up to ten years in prison.}
The affidavit supporting the complaint specifically identifies the right as the free exercise of religion at a place of religious worship. The affidavit details that on the morning of Sunday, January 18, 2026, at approximately 10:30 a.m., "a group of approximately 30-40 agitators, working together in a coordinated manner" entered a church in St. Paul during a religious service and engaged in conduct that "disrupted the religious service and intimidated, harassed, oppressed, and terrorized the parishioners, including young children, and caused the service to be cut short and forced parishioners to flee the church out of a side door, which resulted in one female victim falling and suffering an injury."
On January 22, 2026, Defendants made their initial appearances before Magistrate Judge Micko. The United States moved for a detention hearing, and Magistrate Judge Micko found a detention hearing was not authorized. {Even so, Magistrate Judge Micko asked the United States if it would have additional evidence to present were he to have held a detention hearing. The attorneys for the United States confirmed that there was no additional evidence they would offer. In addition, Magistrate Judge Micko indicated on the record that he would come to the same decision even if he had held a formal detention hearing.} …
Magistrate Judge Micko imposed individualized conditions to assure that the Defendants appear at future court proceedings and to protect the safety of the community. Those included: (1) supervision by U.S. Probation and Pretrial Services; (2) travel outside of Minnesota restricted unless approved by a supervising officer; (3) no-contact with any victims or witnesses of the charged offense; (4) no possession of a firearm, destructive device, or other weapon; and (5) at the request of the United States, a stay-away condition which reads: "Defendant shall stay away from the church location identified in the Complaint Affidavit. 'Stay away' means no closer than the public sidewalk nearest to the location of the Church." Magistrate Judge Micko ordered Defendants' release on an appearance bond.
