12/20/1976: Craig v. Boren decided.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Trump Administration Drops Effort to Deport Chinese Dissident Guan Heng to Uganda
This is likely the result of the massive public outcry supporting Guan. But Trump continues to deport other dissidents and victims of persecution back to their oppressors.
I recently wrote about the Trump Administration's reprehensible effort to deport courageous Chinese dissident Guan Heng to Uganda, which country would likely transfer him back to China, where he would face imprisonment or death. So I am happy to be able to say that the administration has now apparently dropped this plan:
The U.S. on Friday dropped its effort to deport a Chinese national who helped document Beijing's alleged abuses against Uyghur Muslims to Uganda, the man's lawyer told Reuters.
Guan Heng, a Chinese citizen-journalist, fled the U.S. in 2021 after taking video of alleged concentration camps in China's western Xinjiang region. He released the video after arriving in the U.S., where he applied for asylum….
"We just got a letter informing that DHS (Department of Homeland Security) will not seek to remove Mr. Guan to Uganda," his lawyer Allen Chen told Reuters.
Chen said it was not clear if Washington would continue to pursue Guan's removal, either to China or another country, but said sending such a "high-profile dissident" back to China would be unlikely.
Under Department of Homeland Security (DHS) policies, migrants may be deported to third countries if immigration authorities either have "credible" diplomatic assurances they will not be persecuted or tortured if sent there or have given the migrants as little as six hours of notice ahead of time that they are being sent to such a place.
Nonetheless, Chen said the withdrawal of the Uganda removal order was a positive development, adding that he expected Guan would have a bond hearing in coming weeks, though his asylum case could take several years.
As Guan's lawyer notes, the administration could still potentially try to deport him directly to China. But they are unlikely to do after having dropped the attempt at a "third country" deportation, which probably had a better chance of success.
This reversal is likely the result of the widespread outcry against the attempt to deport Guan. It's not likely that the administration suddenly had an epiphany about the legal issues involved (it was always obvious that Guan has a very strong case for asylum). Thus, this is a sign the administration is not immune to public resistance to its cruel and unjust deportation policies. Opponents should learn from this experience and keep up the pressure, and - where possible - increase it.
As noted in my previous post about Guan, the attempt to deport him is just part of a much broader policy of deporting dissidents and victims of persecution back to their oppressors:
Sadly, the effort to deport Guan is part of a broader pattern of Trump administration efforts to deport dissidents and victims of persecution back to the regimes that oppress them. These policies now include deporting Russian dissidents back to Vladimir Putin's brutal dictatorship, refugees who fled oppression in Cuba and Venezuela, Iranian Christians who fled persecution by that country's radical Islamist regime, and Afghans who fled the Taliban (including many who aided the US during the war). Such policies are obviously cruel and unjust. They are also strategically counterproductive.
A policy that essentially aids anti-American regimes in their persecution of dissidents undermines our position in the international war of ideas between these governments' ideologies and ours, and deters future would-be dissidents and allies from working against those governments or aiding us. This isn't making America Great Again. It's making us simultaneously evil and stupid.
Ideally, these other cruel deportation policies should be met with the same widespread condemnation as that which resulted in the administration's reversal on Guan Heng.
Open Thread
What’s on your mind?
First Amendment Challenge to UW "Unacceptable or Inappropriate" Conduct Policy Revived
Another item from today's Ninth Circuit decision in Reges v. Cauce, written by Judge Daniel Bress and joined by Judge Milan Smith (for more on the primary portion of that opinion, see the UW Professor's Parody of Land Acknowledgment in Class Syllabus Protected by First Amendment post):
Executive Order 31, UW's "Nondiscrimination and Affirmative Action" policy … begins …:
The University of Washington, as an institution established and maintained by the people of the state, is committed to providing equality of opportunity and an environment that fosters respect for all members of the University community. This policy has the goal of promoting an environment that is free of discrimination, harassment, and retaliation. To facilitate that goal, the University retains the authority to discipline or take appropriate corrective action for any conduct that is deemed unacceptable or inappropriate, regardless of whether the conduct rises to the level of unlawful discrimination, harassment, or retaliation….
UW Professor's Parody of Land Acknowledgment in Class Syllabus Protected by First Amendment
"[I]n the public university setting, student disagreement with a professor's academic speech on an issue of public concern cannot alter the Pickering analysis in the government's favor."
A short excerpt from today's long Ninth Circuit decision in Reges v. Cauce, written by Judge Daniel Bress and joined by Judge Milan Smith (note that the university apparently didn't argue that the speech was unprotected because it was off-topic for a computer science class, presumably because the university itself had encouraged non-parody land acknowledgments in such syllabuses):
A public university investigated, reprimanded, and threatened to discipline a professor for contentious statements he made in a class syllabus. The statements, which mocked the university's model syllabus statement on an issue of public concern, caused offense in the university community. Yet debate and disagreement are hallmarks of higher education. Student discomfort with a professor's views can prompt discussion and disapproval. But this discomfort is not grounds for the university retaliating against the professor….
In 2019, the Allen School [of Computer Science & Engineering at the University of Washington] revised its "Best Practices for Inclusive Teaching" to recommend that instructors include an "Indigenous Land Acknowledgement" in their course syllabi. This document offered UW's official land acknowledgment as an example, while making clear that its suggestions were "not prescriptions," but only "ideas" intended to help faculty be "more effective teacher[s] and better role model[s] for more of your students."
Professor Reges viewed UW's land acknowledgment, and the recommendation to include it in syllabi, as a political statement. Reges believes that land acknowledgments are part of "an agenda of 'diversity, equity, and inclusion' that treats some groups of students as more deserving of recognition and welcome than others on account of their race or other immutable characteristic." He therefore did not think it was appropriate for the Allen School to recommend the inclusion of this "political statement" in syllabi. Reges also disagreed with the factual premise of the land acknowledgment, as he believed that "most of the land currently occupied by UW was densely forested before the land was cleared to make way for the campus." He thought the land acknowledgment expressed "that UW's presence is somehow illegitimate, shameful, morally wrong, or unlawful," and considered it "an empty, performative act of moralism" ripe for parody….
On January 3, 2022, the first day of UW's Winter Quarter, Reges met with his Computer Science and Engineering 143: Computer Programming II (CSE 143) class in an online session. This introductory course is required for certain majors and included roughly 500 students. During the session, students accessed Reges's syllabus, which contained the following statement: "I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington." Although Reges briefly mentioned the statement during class, it appears most students did not notice it at the time.
This led to an uproar, which is described in much more detail in the opinion. That in turn led to the university's "opening a lengthy disciplinary investigation (during which a merit pay increase was withheld), reprimanding Reges, and threatening him with further discipline—plainly qualifies as adverse employment action under our precedents."
Reges sued, claiming that this constituted unconstitutional retaliation based on his First-Amendment-protected speech. The panel concluded that the First Amendment presumptively protects a university professor's speech while teaching (it had settled that general question in Demers v. Austin (9th Cir. 2014)). And while such speech, like other government employee speech that's presumptively protected by the First Amendment, could be restricted under the so-called "Pickering balancing test" (named after Pickering v. Bd. of Ed. (1968)), that test had to be applied in an especially speech-protective way in a public university:
Donate to the Institute for Justice
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Friends, please give us money. We'll use it to publish the Short Circuit newsletter and also to sue the government when it shuts down soup kitchens without warning or cause, arrests a grandma at gunpoint on a decades-old warrant for a different person, falsely declares property blighted (so it can be taken via eminent domain), confiscates a $95k airplane over a six-pack of beer, raids construction sites and detains innocent citizens because they appear Latino, extorts people who want to build an addition on their home, and many other dastardly and irrational deeds. Help IJ protect the constitutional rights of all Americans today at ij.org/donate.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Horseracing integrity, beneficial owners, and bills of attainder.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: In 2014, federal task force officers beat up an innocent college student whom they'd mistaken for a suspect. But the Sixth Circuit has twice ruled that the case, which has never gotten to a judgment, cannot proceed because of the Federal Tort Claims Act's judgment bar. We're asking SCOTUS to resolve a circuit split (on Rule 60(b)(6)) and let the case proceed. Click here to learn more.
New on the Short Circuit podcast: A couple Master Thespian attorneys explain how being a good actor makes for being a good lawyer.
New on the Unpublished Opinions podcast: Sure, federal officials may have absolute immunity for violating the Constitution, but Congress has already told state legislators there's another path to accountability.
- In 2025, Congress wrote a law that withholds Medicaid funding from certain abortion providers—specifically, providers that have the characteristics of Planned Parenthood (and basically nobody else). A bill of attainder? First Circuit: The law may single out Planned Parenthood, but it doesn't single them out for punishment, so no. Read More
When Courts of Appeals Decide Issues Pending Before the Supreme Court
The practice is not consistent.
On October 7, the Supreme Court heard oral arguments in Chiles v. Salazar. This case will decide the constitutionality of Colorado's ban on conversion therapy. A decision in that case is expected at some point by the end of June.
As the Supreme Court deliberates on this issue, conversion therapy laws are still on the books in other states. For example, Catholic Charities of Jackson v. Whitmer presents a challenge to Michigan's ban on conversion therapy. The District Court upheld the law, and an appeal was docketed at the Sixth Circuit in February 2025. The Supreme Court granted cert in Chiles on March 10, 2025. In a joint motion, the Defendants asked the Sixth Circuit to put the case on hold, while the Plaintiffs asked the Sixth Circuit to move forward in the ordinary course.
The case was argued before the Sixth Circuit on October 23, about two weeks after the Supreme Court heard argument in Chiles. And two days ago, on December 17, a divided panel of Sixth Circuit found the conversion therapy law was unconstitutional. Judge Kethledge wrote the majority opinion, which Judge Larsen joined. Judge Bloomekatz dissented. I will put aside the merits for now.
Judge Kethledge explained why the majority was deciding the case, even as Chiles was pending. He frames his decision in terms of the federal court's unflagging duty to exercise jurisdiction:
The defendants also argue that we should forbear from deciding this appeal and instead simply await the Supreme Court's decision in a pending case that presents the same issue as the one here. But the Supreme Court has repeatedly affirmed that "a federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging."
Moreover, this case involves a request for a preliminary injunction, which is time sensitive:
And orders granting or denying a preliminary injunction are by definition time-sensitive. Their effect is immediate, because they set the status quo during the case's pendency—only to be superseded months or years later by the court's final judgment. Meanwhile, the Supreme Court's decision could come as late as the end of June 2026; and the plaintiffs make a strong claim that the status quo here—they wish to speak in a certain way, but cannot—violates the federal Constitution.
Finally, Judge Kethledge suggests his opinion might actually help the Supreme Court's deliberations:
Nor would our decision intrude in the slightest upon the Supreme Court's work; to the contrary, the Court prefers to have more circuit-court opinions before deciding an issue, rather than fewer. We see no reason to sit on our jurisdiction in this appeal—so we proceed to exercise it.
Judge Bloomekatz's dissent addressed the abeyance in depth.
I am aware of no case where we have raced to decide an appeal when the Supreme Court has argued essentially the same case before we have. I would not make this the first. In forging ahead despite Chiles, the majority opinion appears to break new ground. Our general practice is to wait for the Supreme Court's guidance when it is slated to decide a case that will govern our analysis, especially when the Supreme Court's review is further along than ours. [FN2] Our sister circuits do the same. [FN3] The majority opinion does not cite to a single example where we pushed forward and resolved an appeal in circumstances like these.
Bloomekatz writes further that previous courts that held cases in abeyance did not violate their unflagging duty to exercise jurisdiction:
Is the majority opinion saying that each time we held a case pending a Supreme Court decision we abandoned our "unflagging" duty? That is quite an indictment of our well-settled practice, our sister circuits' practice, and our broad power to order abeyance.
I have been tracking this issue for some time. In short, federal courts of appeals have adopted inconsistent practices. Here are several examples I have written about.
First, let's consider the Obamacare litigation. On August 12, 2011, the Eleventh Circuit found that the individual mandate was unconstitutional. The cert petition in NFIB v. Sebelius was filed on September 28, 2011. At that point, there was a circuit split between the Eleventh Circuit and the Sixth Circuit, so everyone knew this case was headed to the Supreme Court. Yet other courts plowed on. On September 8, the Fourth Circuit dismissed the challenges to the ACA. Two weeks later, on September 23, 2011, the D.C. Circuit heard oral argument in Seven Sky v. Holder. This panel, which included Judges Laurence Silberman and Brett Kavanaugh, decided the case on November 8, 2011--again, after the cert grant. As I explained in my first book, Unprecedented, Judge Kavanaugh's opinion in that case helped shape the government's taxing power argument before the Supreme Court, and ultimately influenced Chief Justice Roberts's saving construction.
Second, a similar dynamic occurred in the confederate license plate case. On March 23, 2015, the Supreme Court heard oral argument in Walker v. Texas Division, Sons of Confederate Veterans. This case considered whether Texas could deny a special vanity plate to the Sons of Confederate Veterans. On December 11, 2012, the Second Circuit heard oral argument in Children First Foundation, Inc. v. Fiala. This case presented a very similar case, in which New York denied a "Pro Life" vanity plate. On May 22, 2015, the Second Circuit ruled for New York. The Supreme Court ruled on June 18, 2015. Ultimately, Justice Alito's Walker dissent cited Fiala. At the time, I was critical of the Second Circuit's post-cert decision. Here, this case was argued by the Second Circuit after the Supreme Court oral argument, and decided before the Supreme Court rule.
Third, there was overlap between the Supreme Court and the Fourth Circuit in the travel ban litigation. On February 15, 2018, the en banc Fourth Circuit declared Travel Ban 3.0 unlawful. But the Supreme Court had already granted cert in Trump v. Hawaii on January 19, 2018. Argument would be held on April 25, 2018. Perhaps the Fourth Circuit's opinion offered some of the Justices alternate arguments to consider. Indeed, one commentator praised this aspect of post-cert circuit opinions. At the time, I described this decision as a judicial "amicus brief." That is, another document to influence the Supreme Court justices.
Fourth, the Fifth Circuit has adopted inconsistent abeyance practices in abortion cases. Roe's "ad hoc nullification machine" affects all facets of federal court jurisdiction. Consider the lower court litigation in Dobbs. The Fifth Circuit panel heard oral arguments on October 7, 2019 (Higginbotham, Dennis, and Ho). Three days earlier, certiorari had been granted in June Medical from Louisiana. One of the questions presented in the Louisiana case was whether third-party standing was permissible. In the Mississippi Case, the Plaintiffs included "Jackson Women's Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors." Dobbs case raised the same third-party standing issues that were presented in June Medical. There were no individual plaintiffs in Dobbs. The Fifth Circuit Dobbs panel did not hold the case in abeyance. Instead, it resolved the case barely two months later on December 13, 2019. June Medical would be argued on March 4, 2020.
Fifth, the Fifth Circuit found the CFPB unconstitutional on the same day Seila Law was argued. What a coincidence! On Tuesday, March 3, at 10:00 a.m., the Supreme Court heard oral arguments in Seila Law v. LLC. That case considered the constitutionality of the CFPB's structure. (I analyzed the arguments here.) At some time that same day (I am not sure the exact time), a divided Fifth Circuit panel (Higginson and Higginbotham, with Smith in dissent) decided CFPB v. American Check Cashing. This case upheld the constitutionality of the CFPB's structure. At the time, I wrote:
Now, the Justices can consider the Fifth Circuit opinion, without any substantive response. Issuing the decision the day of arguments, and before the Justices' conference, is the worst possible option. It would have been better to drop the opinion last week, so the parties could at least talk about it before the Court.
A few week later, the en banc Fifth Circuit sua sponte vacated American Check Cashing, so it had little impact on Seila Law.
***
To summarize, the practice here is inconsistent. In the Obamacare litigation, the D.C. Circuit decided the case after the Supreme Court had already granted cert in NFIB, but before Supreme Court oral argument. In the license plate case, the Second Circuit argued the case before the Supreme Court, and decided it after Supreme Court oral argument. In the travel ban litigation, the en banc Fourth Circuit ruled after the Supreme Court had already granted cert, but before Supreme Court oral argument. In in Dobbs, the Fifth Circuit heard oral arguments after the cert grant in June Medical, and argued the case before Supreme Court oral argument. In the CFPB case, the Fifth Circuit upheld the structure of the agency on the same day as Supreme Court oral argument.
I am not aware of another case where the lower court argued and decided an issue after a Supreme Court cert grant and oral argument.
Please email me if I'm missing any other relevant cases.
Update: There is another precedent involving the Voting Rights Act. Nairne v. Landry (24-30115) is a VRA case. The panel issued an opinion on August 14, 2025, after the Supreme Court had ordered re-argument in Callais. The very next day, the Louisiana SG asked the panel to stay all the briefing schedules pending Callais. On August 25, the panel (Dennis, Haynes, Ramirez) denied the request to stay the briefing schedule. On October 27, Louisiana filed a petition for rehearing en banc. Apparently, that petition jostled the panel, which stayed all briefing on November 26.
Appellants' Motion for Abeyance of Appeal and Suspension of Deadlines is GRANTED, pending the decision of the Supreme Court of the United States in No. 24-109, Louisiana v. Callais. The hold on the mandate remains in effect. The petition for rehearing en banc remains pending. * Judge Dennis joins the order because the panel is not unanimous in opposing abeyance.
Today in Supreme Court History: December 19, 1940
12/19/1940: U.S. v. Darby argued.
Open Thread
What’s on your mind?
Firings, and Tariffs, and Trump, Oh My!
Justices Barrett and Kavanaugh are still chewing over Justice Gorsuch's questions from the tariffs case.
I attended the oral argument in the tariff case. Secretary of the Treasury Scott Bessent sat a few rows behind me, right next to Secretary of the Commerce Howard Lutnick. Every now and then, I turned around to look at Bessent and the other politicos. He was paying very close attention, and didn't doze off.
Now, Bessent seems to have some information we do not. Bessent told Fox Business that the ruling would likely come in January. If Bessent is right, the opinions in that case must be nearing completion. Yet, based on the oral argument in Slaughter, the tariff case is very much on the Justices' minds. These two cases may be landmark rulings for the separation of powers. In Slaughter, both Justices Kavanaugh and Barrett brought up the tariff case by name, and Justice Gorsuch called back to his questions from that sitting. Plus Solicitor General Sauer tried as hard as he could to avoid any discussion of the non-delegation doctrine and the major questions doctrine. If Bessent is right, then the Justices are just thinking out loud. But something tells me that the tariff case is not quite settled yet. As I wrote after that argument, counting to five may be tricky.
First, Justice Barrett recalled Justice Gorsuch's question concerning legislative vetoes:
And, actually, this is a question I truly don't know the answer to and I just thought of it during the argument as we were talking about bargains.
So both Justice Gorsuch and Justice Kagan were asking you about the bargain that Congress has made in creating these independent agencies. And I was struck by, you know, I remember Justice Gorsuch brought up in the tariffs argument the fact that the tariff statute had a legislative veto originally. I don't know whether the original 1935 FTC Act from Humphrey's did or did not.
But I guess the question that I have, is that part of the bargain? Because legislative vetoes were pretty ubiquitous throughout the Twentieth Century. . . .
But I guess what I'm saying is, having lost that check, maybe these independent agencies have become something that Congress didn't intend or anticipate even at the point that it set it up, which is the point that Justice Gorsuch made in the tariff argument with respect to IEEPA.
I wrote about the legislative veto issue here. Barrett's intuition was right. Congress added a legislative veto over FTC rules in 1980, but that "bargain" was upset by Chadha.
Second, Justice Kavanaugh called back to Justice Gorsuch's questions concerning veto overrides:
Well, once the power is taken away from the President, it's very hard to get it back in the legislative process. Kind of the flip side of what we were talking about in the tariffs case because the Congress, the real world of this is the independent agencies shift power from the presidency to the Congress. Everyone recognizes that.
I think Congress has more control over the independent agencies than they do over the executive agencies. Congress doesn't want to give that up. It's hard for the President to get new legislation passed that would, for example, convert an independent agency to an executive agency.
Do you have an answer to that real -I mean, I think just leave it to Congress ignores the reality of the legislative process and Congress's desire to keep that power that they have had that most people have recognized over the independent agencies.
That's a theory out there. I just want to get your response to that.
I wrote about the veto overrides in the tariff case here.
In the tariffs case, Justice Gorsuch described delegation as a one-way ratchet that, as a practical matter, cannot be retrieved.
Wisconsin Judge Hannah Dugan Found Guilty of "Obstructing Federal Agents Seeking to Make an Immigration Arrest Outside Her Courtroom"
So reports the Milwaukee Journal Sentinel (John Diedrich, Mary Spicuzza & Hope Karnopp):
On April 18, Dugan was presiding over a misdemeanor court on the sixth floor of the Milwaukee County Courthouse….
Federal agents were there to arrest Eduardo Flores-Ruiz, 31, charged with battery and appearing before Dugan. Flores-Ruiz illegally re-entered the U.S. in 2013.
Dugan learned of the planned arrest from her clerk. She went to the main corridor with another judge, questioned the agents, and directed them to the chief judge's office, who was working on a plan on how such arrests were to be treated.
Dugan returned to her courtroom, moved Flores-Ruiz's case up first and then directed Flores-Ruiz and his attorney through a non-public door and into a hallway used by judges and staff, witnesses testified.
Flores-Ruiz and his attorney emerged into the public corridor. Federal agents followed them. He was arrested outside the courthouse after a brief foot chase.
"You Are Not the Selection Committee. You Are the Welcoming Committee."
A nice line for prospective parents-in-law, from Abigail Shrier (crediting a friend of hers) in her Free Press advice column.
One more item from the same column—the person seeking advice, about what to do about her 22-year-old daughter's prospective impending marriage, included this in her question:
[G]iven that these two are facing certain separation for a couple years, I feel like her fiancé proposed in order to tie her down. To take her off the market.
Shrier's response:
The only reason any good man ever proposes to a woman is because he wants to "tie her down" and "take her off the market." There is nothing sinister in this—and in fact, much to celebrate.
George Mason University Scalia Law School Dean Search
Your chance to apply to be a law school dean!
Do you want to be the next dean of Antonin Scalia Law School at George Mason University, and (sort of!) my boss? Well, now's your chance to apply! You can lead the law school with more Volokh Conspiracy bloggers than any other. See this link for information about the position, and how to apply.
The search committee asked me to put up this post, which I am happy to do. But I am not a member of the committee, myself. So interested applicants should send their queries and and applications to the committee, at the link above, not to me.
Brennan Center Symposium on "2025's Most Significant State Constitutional Cases"
Contributors include Eugene Volokh and myself, among many others.
Today, the Brennan Center State Court Report published its symposium on "2025's Most Significant State Constitutional Cases." Contributors include Erwin Chemerinsky, Miriam Sefter, former Ohio Supreme Court Chief Justice Maureen O'Connor, former Texas Supreme Court Chief Justice Nathan Hecht, Anthony Sanders (Institute for Justice), the Volokh Conspiracy's own Eugene Volokh, and myself, among others. Here is an excerpt from my contribution:
In Norfolk Southern Railway Company v. State Corporation Commission, the Virginia Supreme Court held that a law authorizing broadband service providers to take property to install fiber optic cables across railroad-owned land violated the state constitutional requirement that eminent domain can only be used for a "public use" and that a taking for a private entity does not qualify unless it is "for the authorized provision of utility, common carrier, or railroad services…."
The case is significant because it addresses one of the constitutional amendments enacted in multiple states in the wake of the U.S. Supreme Court's controversial 2005 ruling in Kelo v. City of New London, which held that private "economic development" is enough to satisfy the public use requirement of the Fifth Amendment. These post-Kelo reforms — or state court interpretations of preexisting constitutional provisions — have frequently provided stronger protections against abusive takings than the U.S. Supreme Court was willing to enforce under Kelo. The post-Kelo experience provides a potential model for other state constitutional litigation and reform efforts on property rights issues, most notably exclusionary zoning. But such state-level initiatives are not a fully adequate substitute for strong enforcement of federal constitutional protections in these areas.
Eugene's piece addresses North Carolina Bar and Tavern Association v. Stein, an important economic liberties case.
18-Month Sentence for Anti-Asian/Anti-Gay Threats Sent by Montana State Univ. Chinese Culture Club President
(Not the Chinese Boy George.)
From the government's Offer of Proof in U.S. v. Wu (D. Mont.), in which an 18-month sentence was just announced yesterday; Wu indeed appears to himself be Asian:
If this case were tried in United States District Court, the United States would prove the following:
On February 16, 2023, a detective with Montana State University (MSU) Police Department contacted the FBI to report that a potentially threatening communication had been sent to the Queer Straight Alliance (QSA), an LGBTQ+ student group on the MSU campus. The email, sent from ProtonMail account "tpusaatmontanastate@protonmail.com," contained the subject line "Killing all the groomers and faggots." The email read:
"Sinners of the QSA you must repent and turn to god, not the god that supports isis terrorists and sharia law but the white god of Christianity. If you do not call off your grooming party of young children tonight, we will send someone to the Rialto and send everyone present to an early death in hell."
On February 23, 2023, QSA received a second email, this time from ProtonMail account "tpusainc@proton.me." The subject line read "Repent the grooming children" and the email stated:
"Sinners, you may have been able to coerce some of us into silence but a majority of Montanan's along with our founder Charlie Kirk will always be against your satanic ways. True Montanan's will not stop until we expel all the groomers and colored people from our campus and great state!["]
On March 10, 2023, Student-1, a female MSU student of Asian descent who was affiliated with the QSA, received an email from ProtonMail account "DARIA_DD78@proton.me." The email subject line was "killing the chink," and the email read: "Hi Chink I have people watching your house day and night. One of these days you will get what's coming to you. This isn't Missoula in real Montana we kill gooks like you."
The following week, Student-1 planned an "Anti-Hate Teach-In" at MSU. Rex Wu assisted Student-1 with planning the event.
>$230K #TheyLied Judgment Affirmed in Defamation Case Based on Sexual Assault/Harassment Allegations
Couteller v. Mamakos, decided yesterday by the N.Y. intermediate appellate court, affirmed a default judgment in favor of a defamation plaintiff (for more on the case, see this post about the initial trial decision):
The court providently exercised its discretion by striking defendant's answer based on her "failure to comply with court orders, in the absence of adequate excuses," which permits an inference of willful and contumacious behavior. The record reflects that defendant failed to attend a status conference, did not meet discovery deadlines, and neglected to communicate with counsel, culminating in counsel's application to be relieved. Defendant failed to take any action in this case for over a year, despite the court's instruction to either retain new counsel or notify the court of her intention to proceed pro se. Defendant failed to appear at a scheduled conference notwithstanding the court's warning that a failure to appear would result in sanctions…. Defendant's willingness to permit this case to "linger for years without resolution," caused prejudice to plaintiff and impaired "the efficient functioning of the courts." …
The sole excuse defendant offered was that she did not timely receive the order which directed her to appear because it was sent to the wrong address. However, the record reflects that, about a month before the conference, defendant's former attorney sent the order via certified mail to the same address defendant provided on her motion to vacate. "A demonstrably false excuse will not justify the vacatur of a default."
Kai the Hatchet-Wielding Hitchhiker Loses Yet Another Defamation Lawsuit
From McGillvary v. Grande, decided Tuesday by Judge Jennifer Hall (D. Del.):
In February 2013, pro se Plaintiff Caleb L. McGillvary rose to internet fame as the "Kai the Hatchet-Wielding Hitchhiker," after he stopped an attacker who had crashed a car into pedestrians. Later that year, Plaintiff was convicted of first-degree murder in an unrelated incident, and he is currently serving a 57-year sentence in New Jersey state prison. In 2021, Defendant Todd Grande published a video on his YouTube channel in which he discussed Plaintiff's personal history and purported to analyze his personality.
Plaintiff sued for libel, but the court dismissed the claim:
For one thing, most of the statements in the video are opinions and characterizations, not assertions of fact, and are therefore incapable of defamatory meaning under Delaware law. Second, even if some statements were capable of being defamatory, the facts alleged in the amended complaint do not plausibly suggest that they could have lowered Plaintiff in the estimation of the community or deterred third persons from associating or dealing with Plaintiff. See McGillvary v. Netflix, Inc. (C.D. Cal. 2024) (holding that allegation that McGillvary engaged in public urination did not have a tendency to injure his reputation because "McGillvary already has a reputation for public urination given two other public urination incidents"). Finally, given Plaintiff's status as a limited-purpose public figure—having given interviews to a news program and a late-night talk show—the complaint fails to state a defamation claim because it fails to plausibly plead facts suggesting actual malice.
The court also dismissed the disclosure of private facts (invasion of privacy) claim:
