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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Amendment Roundup: Hawaii Sticks to Its Black Code Precedent
Its Amici in Wolford v. Lopez abandon the embarrassing “analogue.”
On Tuesday, January 20, the Supreme Court will hear oral argument in Wolford v. Lopez, which concerns whether the Ninth Circuit erred in holding that Hawaii may prohibit the carrying of handguns by permit holders on private property open to the public unless the property owner affirmatively gives express permission. The Ninth Circuit upheld the ban under Bruen based on the existence of merely two purported historical analogues, a 1771 New Jersey law on poaching and an 1865 Louisiana Black Code law.
As I explained in a previous post, I filed an amicus curiae brief on behalf of the National African American Gun Association, extensively detailing the nature of the Louisiana law as part of the Black Codes intended to limit the freedom of movement and the right to bear arms of the newly-freed slaves. As explained in the New York Tribune, March 7, 1866, the statute making it unlawful to "carry firearms on the premises or plantations of any citizen" without consent was part of "a code of laws [for blacks] establishing a system of serfdom, forbidding the free passage of blacks from one plantation to another, and under the form of apprenticeship and Vagrant laws reenacting slavery in fact."
But in Respondent's Brief, Hawaii doubles down on its reliance on the Louisiana law. After all, it's one of only two supposed historical "analogues" offered. It cites a handful of other laws, but they concerned private property not open to the public. As to the Louisiana law, Hawaii wants to have it both ways: "The Black Codes are undoubtedly a relic of a shameful portion of American history. But that does not mean that the laws contained within them are irrelevant to the Second Amendment's historical analysis." No explanation is offered as to why.
Hawaii tries to soften the blow by asserting that "contemporary opponents of the Black Codes agreed that the Second Amendment did not authorize armed entry without the consent of a property owner." But it cited just one such opponent, who said quite the opposite. General D.E. Sickles, Commander of the Department of South Carolina, issued a decree in 1866 providing that, while the "constitutional rights of all loyal and well-disposed inhabitants to keep and bear arms will not be infringed, nevertheless this shall not … authorize any person to enter with arms on the premises of another against his consent." Entering "against" one's consent is quite the contrary of entering "without" one's consent.
Eight of the usual suspects filed amici curiae briefs in support of Hawaii, but not a single one mentioned the embarrassing 1865 Black Code law of Louisiana. Everytown for Gun Safety danced around the issue but kept the law in the closet. Its brief scolds the United States and petitioners for "contend[ing] that a firearms regulation is per se unconstitutional if it has a purportedly improper purpose to frustrate Second Amendment rights…." Pray tell, exactly which regulations are being referred to? You've got to read the amicus brief of the United States or the brief of petitioners to find that Everytown is referring to the 1865 Louisiana law.
Everytown next berates the United States and petitioners as being "wrong to argue that modern firearms regulations are consistent with the Second Amendment only if the government can marshal some minimum number of historical regulations that mirror the contemporary law." Given that the Ninth Circuit found only two measly laws as purported analogues, that shows the absence of a National tradition of regulation.
As Everytown points out, Bruen relied in part on treatises and historical newspapers to illuminate the meaning of the Second Amendment. But none of the sources it cites support Hawaii's law, least of which did The Loyal Georgian, Feb. 3, 1866, an African American newspaper that celebrated the Second Amendment and concluded: "All men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves." (I located that article in researching my 1998 Freedmen book (reissued as Securing Civil Rights), which Heller repeated.)
The brief of the Brady Center cites just a handful of irrelevant historical laws, but conspicuously missing is the 1865 Louisiana law. The brief of Professors of Property Law mustered up a total of five mostly colonial laws to cite in a footnote but failed to discuss their contents. The brief of what it self-characterizes as "the Amici States – the District of Columbia" et al. (sic) cites no historical laws.
As Bruen held, "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." Hawaii may not have an easy time at oral argument explaining how it has met its burden.
Federal Officer Removal in Plaquemines Parish
Justice Barrett is thinking about Chief Judge Pryor's holding that Mark Meadows could not remove the Georgia criminal prosecution to federal court.
On Monday, the Court heard oral argument in Chevron v. Plaquemines Parish. The question presented is whether the energy company, a federal contractor, could remove a case to federal court "when sued for oil-production activities undertaken to fulfill a federal oil-refinement contract." I don't have terribly strong thoughts about this particular question, but my ears perked up when Justice Barrett brought up officer stuff. Yes, you can never get away from officer stuff.
ACB inquired abut Chief Judge Pryor's decision in Georgia v. Meadows (2023). As you might recall, the Fulton County DA indicted President Trump and several of his associates, including former Chief of Staff Mark Meadows, for events arising from the 2020 election. But by the time the case arrived to the Eleventh Circuit, Meadows no longer held that position. Judge Pryor found that the federal-officer removal statute does not apply to former federal officers.
In that case Georgia conceded that the Chief of Staff was an "officer" position, and the Eleventh Circuit relied on that concession. I'm not so sure about that concession. There is some reason to think the Chief of Staff is neither a principal nor an inferior officer of the United States. He just might be an employee, in which case he could not avail himself of the federal officer removal statute at all. But that issue was not litigated, so I'll leave it here. And for those with short memories, Seth Barrett Tillman and I argued that Trump, as President, was not an "Officer of the United States," and thus could not remove the case to federal court. Judge Hellerstein, who has been in the news of late with the Maduro case, "believe[d]" in dictum that the President was an "Officer of the United States" for purposes of Federal Officer Removal Statute.
Anyway, back to Meadows. Paul Clement represented Meadows, and filed a cert petition in June 2024. It was denied in November 2024, without any relists, or dissents. At the time, I suspected the Court wanted to get as far away from J6 as possible, and in any event, this was not the ideal vehicle to resolve the issue. Judge Pryor held in the alternative that even if Meadows could remove the case, the events giving rise to the indictment were not related to Meadows's official duties.
Fast-forward to Plaquemines Parish (which is close to where ACB grew up in New Orleans.) Chevron was represented by (who else) Paul Clement. And Justice Barrett asked about Judge Pryor's opinion:
JUSTICE BARRETT: The other thing is we've never addressed whether the federal officer has to be a federal officer now or at the time the conduct occurred. And in the Meadows case, which was pretty recent, Chief Judge Pryor said, well, it has to be at the time currently, which would not apply to your clients.
So if you could address those two.
MR. CLEMENT: Well, there's a lot there. I mean, first --and --and let me make sure I don't forget either piece.
JUSTICE BARRETT: Yeah.
…
So, on your second question, well, what can I say? I mean, Chief Judge Pryor got that badly, badly wrong. I asked on behalf of Mr. Meadows for this Court to take a look at it and fix it. This Court wasn't interested. But, you know, the arguments are overwhelmingly strong that that's --that the Eleventh Circuit decision is wrong. But even the Eleventh Circuit, my understanding is, has not applied that in the government contractor case because, you know, one of --I mean, there's a lot wrong with that approach, but one of the things is it's really hard to apply in the government contractor case because what are you saying? Like, the contract officer that gave us the contract in World War II still needs to be alive or still needs to be on the job? I mean, that doesn't make any sense.
JUSTICE BARRETT: Well, I don't --I don't know whether it makes sense or not because, as you say, we didn't take up that question before. I just don't want to implicitly resolve it here because it's a live one.
MR. CLEMENT: It's not a live one on the Fifth Circuit on remand. You know, if you want to drop a footnote and say you're not deciding that case or that issue in the opinion, you know, that --that --that would be an appropriate approach, I think.
I think there are only a handful of advocates who could stand at the podium and stay that the Chief Judge of the Eleventh Circuit was "badly, badly wrong." And there are even fewer advocates who can complain that their cert petition in another case was denied. Paul Clement did both things in the span of a few moments.
Now, onto the transgender cases. Many more posts to come.
Sign Up For Advancing American Freedom's Judicial Clerkship Training Academy
The deadline is January 30.
I am pleased to announce that Advancing American Freedom is hosting a Judicial Clerkship Training Academy in Washington, D.C. on March 18-20. I will be on the faculty, teaching a seminar on statutory interpretation. This is a great opportunity for future law clerks to learn about the job. The deadline is soon--January 30--so sign up quickly. Here are the details:
Judicial Clerkship Training Academy
Wednesday, March 18 – Friday, March 20, 2026
Applications due by Friday, January 30.
Please click here to apply.
Topics covered include legal writing, originalism, textualism, and practical discussions with prominent judges and former clerks. Speakers will include federal judges, professors who teach at well-known law schools, and legal practitioners. The program is designed for attendees who have already accepted offers for judicial clerkships with start dates in 2026.
"We Must Not Sport With Things of So Solemn a Nature"
"as reports of referees, and verdicts of a jury."
An amusing locution, from Shewell v. Wycoff, 1 U.S. 312 (1788). Special bonus question: What court does this case, published in volume 1 of the U.S. Reports, come from?
Court "Order for Lunch"
You can see such orders in court dockets, mostly in the Eastern District of Pennsylvania, and might be curious just what's on the menu. Unfortunately, the document doesn't include the lunch order as such, but rather a court order authorizing the purchase of lunch for jurors. The Northern District of California also sometimes issues orders for jury breakfast, most recently in Elon Musk v. Samuel Altman (to be delivered through AI-using delivery robots, doubtless).
As I understand it, most courts don't routinely provide meals for jurors, but at least some courts do it at least some of the time, for instance during jury deliberations. I assume that courts in other federal districts likewise at least sometimes provide meals for jurors as well without requiring a court order. But I'm happy to be corrected if I'm mistaken on that.
No Shirt, No Shrewd, No Parking
"[O]n numerous occasions over the next fifteen months, Appellant was seen walking or standing in front of Appellee's home wearing only brightly colored underwear."
Johnson v. Faeder was decided yesterday by the Tennessee Court of Appeals (Judge Valerie Smith, joined by Chief Judge Michael Swiney and Judge Neal McBrayer). Defendant-Appellant Faeder is a lawyer who has a web site called One Shrewd Dude (presumably referring to himself), is a former college philosophy teacher and the author of the "bookella" Philosophy Without Reference: An Introduction to Contemporary Philosophy, and has "competed in six Magic: The Gathering Pro Tours" (see also here). Plaintiff-Appellee Johnson lives two houses away from Faeder. Here's the court's discussion of what happened:
[O]n July 14, 2021[,] … Appellee's husband (who is not a party to this litigation), saw Appellant in Appellee's backyard without permission and accompanied by his two young children. Appellant was shirtless at the time, and Mr. Johnson asked that Appellant put on a shirt. Appellant then left the Johnsons' yard with his children. There was no direct interaction between Appellant and Appellee during this encounter.
On July 29, 2021, Appellant delivered a letter to Appellee's mailbox. The delivery consisted of a men's shirt accompanied by a typed letter addressed to "Shirtman," seemingly in reference to Mr. Johnson. In the letter, Appellant proposed a solution for any future incidents: if Appellant's children wandered onto the Johnsons' property while Appellant was outside without a shirt, the Johnsons could bring him the enclosed shirt, which he would then wear and later return to their mailbox for repeated use. Appellant signed the letter "Your Eternally Neighborly Neighbor."
Relations between the parties further deteriorated following this incident. The record indicates that on numerous occasions over the next fifteen months, Appellant was seen walking or standing in front of Appellee's home wearing only brightly colored underwear. This behavior occurred repeatedly, including occasions when Appellee was hosting a children's birthday party and an Easter gathering at her home.
Zen and the Art of Persuasive Writing: Be Aware of the Audience
Absent readers and absent writers; know the reader.
Ancient Mesopotamians used pictures of basic objects to preserve and describe their culture. The Phoenicians pivoted from pictures to symbols around 1600 B.C., a harbinger of our modern alphabet. Each symbol represented a spoken sound, but the reader read the symbols from right to left.
This method spread to Israel and Greece, where the Phoenician alphabet was refashioned into the Greek alphabet, but the Greeks invented vowels and redirected the reader from left to right.
The Romans then used the Greek alphabet to make the Latin alphabet, and hundreds of languages have sprung from the Latin alphabet, including English.
When the Phoenicians invented the alphabet and written communication, they invented a method to exchange and preserve thought, long after the thinker has stopped thinking. Words live on the page, where they reverberate beyond our physical and temporal reach. A device that teleports ideas through space and time. Yes, it sounds like Star Wars, but I only mean to say that shouting distance was no longer required to make a point. As a result, we can read the Gettysburg Address in 2024, even though President Abraham Lincoln died in April 1865. Lincoln understood this power and described it well:
Writing, the art of communicating thoughts to the mind through the eye, is the great invention of the world[,] enabling us to converse with the dead, the absent, and the unborn, at all distances of time and space.
But it's not all sunshine and rainbows. The distance of time and space between readers and writers produced new challenges, which I call the Absent Reader and the Absent Writer.
An absent reader for the writer.
First, a writer writes alone. Readers are absent when writers craft and recraft their words and sentences. The reader is not in the room during the creative process, peering over the writer's shoulder to ask questions and raise concerns:
What does this mean?
Why are you discussing that point?
I'm losing interest.
OK bruh, I'm lost.
Today in Supreme Court History: January 13, 2014
1/13/2014: NLRB v. Noel Canning argued.
Open Thread
What’s on your mind?
Are Historians Really Apolitical?
80% of members at the American Historical Association conference supported a resolution about "the U.S.-sponsored genocide perpetrated by Israel in Gaza."
In debates about originalism, historians claim the moral high ground. We are lectured that only those with doctorates, trained in the proper methodology, can place history in the proper context. And the historians insist that they, unlike conservative law professors, are apolitical, and bring no biases to their careful work.
Does anyone actually believe these claims? You shouldn't.
The New York Times reports from the annual meeting of the American Historical Association.
Leadership of the American Historical Association has vetoed two resolutions criticizing Israel's actions in Gaza that were approved by a member vote over the weekend, saying they lay outside the group's mission and would pose risks to the organization and the historical profession.
The first resolution criticized what it characterized as intentional "scholasticide" in Gaza, where most of the educational system, including all 12 universities, has been damaged or destroyed. The second condemned ongoing attacks on academic freedom at American universities, including the silencing of protest against "the U.S.-sponsored genocide perpetrated by Israel in Gaza."
Both resolutions passed with nearly 80 percent support from the almost 500 members who attended the vote, held on Saturday during the group's annual conference in Chicago. But on Sunday the 16 voting members of the executive council voted not to pass them on to the full membership of roughly 14,000 for final consideration.
"As worded the two resolutions fall outside the scope of the American Historical Association's chartered mission," the council said in a statement. "Approving them on behalf of the entire association would present institutional risk and have long-term implications for the discipline and the organization." . . .
The "scholasticide" measure was passed with 282 votes for, 76 against, and two abstentions. The academic freedom resolution passed 245 in favor, 62 against, with one abstention.
Professional historians are not apolitical. They lean overwhelmingly to the left, and are subject to the same sorts of biases as conservatives.
I suppose we should be thankful that the AALS is not venturing down this road. As left-wing as the legal professoriate is, it still seems moderate when compared to the liberal arts. The MLA, of course, passed the Gaza resolution:
The academic freedom resolution was developed in coordination with members of the Modern Language Association, the country's largest scholarly association in the humanities. Over the weekend, it was approved by that group's delegate assembly, by a vote of 61 in favor, 52 against. That resolution will now pass to a vote by the group's roughly 20,000 members, where it must receive a majority that also totals at least 10 percent of membership.
And you wonder why conservatives have taken such aggressive postures to higher education.
Hans von Spakovsky, Formerly of the Heritage Foundation, Joins Advancing American Freedom
The exodus from Heritage continues.
The Washington Free Beacon reports that Hans von Spakovsky, a well-known election law expert, has joined Advancing American Freedom. Hans will continue working with John Malcolm and other Heritage expats at Advancing American Freedom.
Former Heritage Foundation senior legal fellow Hans von Spakovsky has joined Advancing American Freedom (AAF), the nonprofit led by former vice president Mike Pence, the Washington Free Beacon has learned. The move comes after Heritage president Kevin Roberts tapped von Spakovsky to help lead the beleaguered think tank's legal center—only for von Spakovsky to resign alongside the center's previous leader.
"My career has been dedicated to the vital work of election integrity, defending the Constitution and the rule of law, advocating for limited government, and protecting our fundamental rights as Americans," von Spakovsky said in a statement announcing his new role. "That includes eliminating discrimination in any form, particularly the scourge of anti-Semitism. There is no place for such pernicious and invidious hatred in our nation."
Von Spakovsky told the Free Beacon that there were two large factors behind his decision to join AAF: the opportunity to help build a new organization promoting conservative principles—particularly on election integrity and immigration issues—and his new employer's vocal stand against anti-Semitism.
"AAF has taken a very strong position—from what I've seen, people I've talked to—fighting against the scourge of anti-Semitism that has risen in this country," he said. "My mother grew up in Nazi Germany, my father was Russian and actually fought the Nazis. I think that is extremely important. I am just shocked and dismayed at the rise of anti-Semitism, particularly on college campuses, and it's very clear to me that AAF wants to help lead the fight against that."
Kudos to Hans for speaking out so forcefully against antisemitism.
Attorney General Meese, 94-years young, celebrates the move:
"I congratulate Advancing American Freedom on adding Hans von Spakovsky to its new Edwin Meese III Institute for the Rule of Law and am confident that his proven abilities will enhance the Institute's mission of upholding the Constitution and the rule of law."
It truly is outstanding how Meese, Malcolm, and his colleagues have effectively airlifted the center from Heritage to Advancing American Freedom. What a remarkable effort.
Free Speech Unmuted: 2025: The Year in Free Speech
What kind of year was 2025 for free speech? In this special year-in-review episode of Free Speech Unmuted, my cohost Jane Bambauer and I break down the biggest legal and political fights shaping speech in America right now. From the Supreme Court's unanimous decision upholding the TikTok divestment law to a pending case that could redefine how much protection professional "talk therapy" gets under the First Amendment, we explain what has happened—and why it matters. The conversation also covers the Court's ruling allowing age-verification requirements for online pornography, which dealt with tough questions about protecting kids, adult privacy, and free expression on the internet.
Beyond the courts, we examine Trump-administration actions involving law firms, universities, and the media, including federal funding threats, alleged retaliation against certain viewpoints, and the FCC's response to controversial late-night TV commentary. The episode wraps up with a look at when controversial political speech can get employees fired—and when the Constitution or state law steps in to protect them.
Can the government regulate social media features because they are "addictive"? Jane Bambauer and I talk with Emory Law professor Matthew Lawrence about whether features like infinite scroll, personalized feeds, "near-miss" reward patterns, and dopamine-driven engagement tactics are comparable to gambling or even drug addiction—and whether that means the government can step in. The conversation digs into current lawsuits, whether there's a constitutionally significant difference between content and design, how addiction is defined in law and neuroscience, and what First Amendment limits exist when regulating digital platforms. A smart, fast-moving discussion for anyone curious about the future of free speech, tech regulation, and the psychology behind our screens.
Our past episodes:
Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1989 to 2009
Presidential non-acquiescence in Humphrey's Executor from 1989 to 2009.
This is my seventh and final blog post addressing the fact that no president from 1881 to 2009 has acquiesced in the 90-year-old Supreme Court decision in Humphrey's Executor. These blog posts are prompted by a question that Justice Barrett asked at oral argument about the history of independent agencies. The answer she got was that support for limits on the president's removal power dated back to the 1880's—but I think that's incorrect.
Justice Barrett also noted that Humphrey's Executor is a 90-year-old precedent; but, if we are to consider such matters in cases involving interbranch relations, it strikes me as important to recognize that no president since 1935 has acquiesced in or accepted as correct the decision in Humphrey's Executor. For instance, when the Supreme Court held legislative vetoes to be unconstitutional in INS v. Chadha (1983), the Court made a point of noting that presidents from Woodrow Wilson to Ronald Reagan had opposed the constitutionality of legislative vetoes. In writing this blog post, I rely on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).
George H. W. Bush served as president from 1989 to 1993. He was just as committed a friend of the unitary executive as Ronald Reagan had been. "More than almost any president besides William Howard Taft, George Herbert Walker Bush staunchly defended the unitariness of the executive branch…. George H. W. Bush was clearly in charge of his administration and was very attentive to details. Thanks in large measure to White House Counsel C. Boyden Gray and his superb legal staff, Bush defended the unitariness of the executive branch with almost academic rigor." Id. at 384.
"Bush embarked upon one of the most aggressive defenses of the president's prerogatives the republic has ever seen. Bush used a plethora of vetoes and signing statements to protect against any invasion of the constitutional authority of the president that he perceived…. Bush was to achieve astonishing success in using the veto, vetoing forty-four bills. [Only one minor Bush veto was overridden]…. As of 25 July 1991, the White House Press Office had recorded thirty-eight threats of a veto of legislation; the vast majority of the legislation did not ever become law." Id. at 385.
Zen and the Art of Persuasive Writing: Introduction
Nine mantras to persuasion.
We have an epidemic. The virus is known to travel on paper and transmit over the keyboard: it jumps from old lawyer to young lawyer, preys on the inexperienced and insecure lawyer, and thrives in the imprecise and indifferent lawyer. It spreads like wildfire in college towns and institutions of higher learning. And it mutates! Oh boy, does it mutate. Turning verbs into nouns. Adverbs flourish. Adjectives and jargon run free.
That epidemic is bad writing—especially legal and persuasive writing. Legal prose is often dull and opaque, redundant and bumpy, labored and disorganized. It sputters and coughs in the opening sentences, leaving an unnavigable and incomprehensible mess for the reader to withstand. It's hard to read, harder to understand and hardest to remember. It prefers abstractions—abstract words and abstract grammar; abstract facts and abstract arguments. And it weighs on the reader's brain.
Why is so much legal and persuasive prose so bad? I think it's because many legal writers never stop to think about their readers. The elixir for this oversight is mindfulness. A persuasive writer anticipates, meets and remembers the preferences and expectations of his readers. He cares about communication and seizes control of his literary fate—guiding the writing process from start to finish. He knows why he writes, what he writes and how he writes. He knows that persuasive prose is not a monologue, but a dialogue between writer and reader. This book introduces the path to persuasion in nine mantras.
Be aware of the audience. A persuasive writer understands the singular importance of the audience and appreciates the inherent challenges that arise when time and distance separate readers from writers, so he channels the readers to anticipate and answer their questions.
Remember Noriega?
Why Maduro's Prosecution Can Continue Even if the US Violated International Law
For those old enough to remember, the arrest of Venezuelan strongman Nicolás Maduro this month resembles an event that took place 36 years ago to the date: the arrest of Panamanian strongman Manuel Noriega on January 3, 1990. Noriega had been indicted on drug charges in Florida; the U.S. captured him in Panama in a military operation and transferred him to the U.S. for trial.
I first encountered the Noriega case as a new lawyer at OLC, shortly after OLC had signed off on the legality of his seizure and transfer (I didn't work on the opinion itself, which was completed before I arrived). The debate over whether that operation was lawful never really went away—but Noriega's prosecution did go forward. His case looms large again in the controversy over the U.S.'s seizure of Maduro and Maduro's subsequent appearance in federal court in Manhattan.
Some of the legal questions are straightforward. The conduct alleged against Maduro—large-scale narcotics trafficking aimed at U.S. markets—fits comfortably within longstanding principles that allow a state to criminalize foreign conduct intended to have substantial domestic effects. And while sitting heads of state ordinarily enjoy immunity from foreign criminal prosecution, most states, including the U.S., do not recognize Maduro as Venezuela's legitimate leader. Read More
Google Missed Key Deadline in Suit Alleging Google's AI Libeled Business, Court Holds
A federal district court rules that the case should go back to Minnesota state court, rather than being in federal court.
From the decision Friday in LTL LED, LLC v. Google LLC.
The Constitution gives federal courts jurisdiction over lawsuits "between Citizens of different States," in order to diminish the risk that state courts will favor their own citizens. But the Constitution also lets Congress limit this so-called "diversity jurisdiction." Congress has indeed done so, by providing that the jurisdiction extends only to cases in which more than $75,000 is at stake. And Congress has set certain procedural rules, including as to the timing of when a suit filed in state court can be removed to federal court.
Last year, Google was sued in Minnesota state court by a local solar panel installation company that claimed Google's AI Overviews hallucinated false and defamatory statements about the company (see more here). The Complaint claims that none of the sites linked to by the report actually reported that Wolf River had ever faced a Minnesota AG lawsuit, or was otherwise sued for the alleged misconduct. According to the Complaint,
Google cited numerous sources in support of its false assertions; however, none of the referenced materials in fact contained the information Google claimed they did.
The Complaint also alleges specific lost business, to the tune of many hundreds of thousands of dollars, e.g.,
On March 5, 2025, a customer of Wolf River, identified by contract number YKUFU-AH78H-PMNDF-K3C7V, contacted Wolf River and expressed concerns because of the publications on Google alleging Wolf River was being sued for misleading customers about cost savings, using high-pressure tactics, and tricking homeowners into signing binding contracts with hidden fees…. Despite the CEO of Wolf River reassuring this customer that the publications by Google are false, this customer chose to terminate the relationship with Wolf River because of Google….. The total contract price was $150,000.00.
Unlike some past cases of this sort (which I call Large Libel Models cases), the plaintiff appears not to be a public figure, and appears to have evidence of tangible economic losses. That makes its case considerably stronger.
Unsurprisingly, Google wanted to remove the case to federal court: It's conventionally thought that many large corporate defendants prefer to have their cases litigated in federal court, partly to diminish the risk of home-town bias in state courts, and partly because "federal judges are known for being more likely than state court judges to dismiss an action, particularly on procedural grounds." And because of the amount at stake and diversity of citizenship, Google was entitled to such removal.
But only if it was asked for in time, and Friday's decision by Judge Jeffrey Bryan in LTL LED, LLC [Wolf River Electric] v. Google LLC (D. Minn.), said Google had filed the notice of removal too late:
Students for a Democratic Society Chapter, Expelled from Univ. of South Florida for Rule Violations, Loses First Amendment Challenge to USF Policies
In Tampa Bay Students for a Democratic Society v. Univ. of South Florida, decided Friday by Judge Steven Merryday (M.D. Fla.), the SDS challenged its expulsion from USF, as well as various USF policies:
Policy 6-017.VI.C.2: "Members of student organizations that are suspended or expelled may not … attempt to continue to function at the university under a new name but with similar members and purpose."
Policy 6-028.VI.E.1: "Displays, tables, and exhibits need prior approval using the Reserved Activity Request or Space Impact Process."
Policy 6-028.VII.I.2: "Non-University guests who wish to attend an Activity sponsored by a University Entity may be required to be ac-companied by a USF representative (student, faculty, or staff member) with a valid USF identification card. Non-University guests must show a valid drivers' license or another form of picture ID upon request. Guests may be required to be registered for some Activities."
Policy 6-028.VII.L.3: "A reservation through the Reserved Activity Request process is required" for the use of space by a student organization after 5:00 p.m.
Policy 6-028.VII.A.9: "To provide an environment conducive to preparation of final or cumulative exams, the final two weeks of any academic term, no Activities will be permitted in or near Academic Spaces on campus, without reservations."
The expulsion only applied to the group as a group, and didn't apply to its members, though some members were indeed expelled for their own misconduct. The court upheld the policies (after laying out the various ways in which SDS was alleged to have violated many USF rules):
"[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism (1989). "Outdoor areas of campus are considered traditional public forums for individuals, organizations, and guest speakers….'Outdoor areas of campus' means generally accessible areas of a public institution of higher education in which members of the campus community are commonly allowed, including grassy areas, walkways, or other similar common areas." §§ 1004.097(3)(c), (2)(d), Fla. Stat [part of the Florida Campus Free Expression Act]….
The plaintiffs offer no argument as to why the Guest Policy, which regulates the access of non-students to the USF campus, violates the First Amendment. The claim fails….
The Final-Exam Week Policy states: "To provide an environment conducive to preparation of final or cumulative exams, the final two weeks of any academic term, no Activities will be permitted in or near Academic Spaces on campus, without reservations." Patently content-neutral and expressly and reasonably tied to a significant university interest, the Final-Exam Week Policy allows ample alternative channels of communication both during the final two weeks of each academic term and during the forty-eight weeks the policy does not apply ….
Mischaracterizing the Reservation Policy as a "curfew," the plaintiffs argue that the hours set by the policy are "untenably early for speech and advocacy outdoors on a public university campus" …. Neither a "curfew" nor a "ban," the Reservation Policy, which the plaintiffs concede is a "permit requirement[ ]," requires only advance reservation for the use of university space during evening hours: a permissible time, place, and manner restriction by any standard.
