The Volokh Conspiracy Archive

From today's First Circuit decision today in Bean Maine Lobster, Inc. v. Monterey Bay Aquarium Found., written by Judge Julie Rikelman and joined by Judges Gustavo Gelpí and Seth Aframe:

This appeal concerns the so-called "group defamation rule." Under that rule, a defamatory statement about a large group is not actionable unless the statement or its context indicates that it is targeted at specific members of the group.

Here, multiple companies and organizations involved in the Maine lobster industry sued the Monterey Bay Aquarium Foundation ("the Aquarium") for defamation under Maine law. The plaintiffs challenged the Aquarium's statements recommending that consumers avoid eating American lobster because lobster fishing poses a risk to the endangered North Atlantic right whale, even though those statements did not single them out in particular….

The district court denied [a motion to dismiss], concluding that the Aquarium's statements applied equally to each member of the Maine lobster industry. We disagree with the district court's application of the group defamation rule and thus reverse….

To maintain an action for defamation under Maine law, a plaintiff must establish that the alleged defamatory statement was "of and concerning" them. When a statement defames a large group of which the plaintiff is a member, courts have generally concluded that the plaintiff cannot satisfy the "of and concerning" element by virtue of the common-law principle known as the group defamation rule. Under this rule, "[d]efamation of a large group gives rise to no civil action on the part of an individual member of the group unless he can show special application of the defamatory matter to himself."

From Fifth Circuit Judge Priscilla Richman, concurring in the 10-7 vote to deny rehearing en banc in Evans v. Garza (for more on last year's panel opinion, see here):

The statute under scrutiny made it a crime to disseminate a photograph of a person in a restroom under certain circumstances. The photo that Michelle Evans tweeted undoubtedly punctuated her political speech that accompanied the photo. But Michelle Evans could have conveyed her political views without publishing the photo. The Texas statute did not impinge at all on Evans's ability to broadcast to the world that she saw a biological male who is transgender, and who was also a political candidate, use a women's public restroom at the Texas Capitol complex, and to express her strong political views that this should not be permitted.

The question is whether it is likely (since we are at the preliminary injunction stage) that a state has a compelling interest in protecting a person's expectation of privacy in a restroom that is sufficient to outweigh First Amendment free speech rights under the facts of this case. I submit that the answer is "yes."

Evans attended a debate in the Texas House of Representatives at the Texas Capitol about gender reassignment treatment for children. When she visited the women's restroom, she encountered a biological male who is a transgender female, and who was at the time running for election to the Texas House of Representatives. Texas law did not prohibit a biological male who identifies as a female from using a women's restroom….

Evans then returned to her seat in the Capitol gallery, where one of her seatmates showed her that someone else from their group had posted on Facebook a photo of the candidate washing their hands in the women's restroom. Evans posted the photo on Twitter with a caption:

Evans's tweet generated a controversy, and the Travis County District Attorney, José Garza, investigated whether Evans had violated Texas Penal Code § 21.15(b). This statute criminalized—as a state jail felony—transmitting "a visual image of another in a bathroom or changing room" or promoting such a transmission if the action is done without consent and "with intent to invade the privacy of the other person."

What is this even supposed to mean?

Is it just self-parody?

From the Sept. 30 decision in People v. Barraza by California Court of Appeal Justice Richard Huffman, joined by Justices William Dato and Truc Do:

[1.] Alberto Jorge Barraza cut off parts of Nikko G.'s hair with a knife as Nikko tried to fight him off. Barraza stabbed Nikko in the leg, severing an artery and killing him. A jury convicted Barraza of [1] first degree felony murder, with the underlying felony being robbery and [2] assault with a deadly weapon. Barraza appeals, contending insufficient evidence supported his first degree felony murder conviction because the evidence did not establish a robbery or attempted robbery.

This appeal presents a question of first impression—whether growing human hair, still attached to the victim's body, constitutes "personal property" for purposes of robbery. We conclude that growing human hair that is still attached to a person's head is part of the human body and not personal property. Accordingly, removing it by force does not meet the legal definition of robbery.

Nikko became acquainted with Barraza and two of Barraza's friends—John W., and John's mother, Lee Ann W. (together the Ws). Nikko was a member of an Indian tribe who was very proud of his Native American heritage. He had long hair that went down to his waist. Nikko took great pride in his hair and had spoken to John about his plan to sell it to a "cancer company that made wigs."

In early 2022, Barraza and his friends turned against Nikko after concluding he had stolen from them. Barraza and John discussed cutting off Nikko's hair to teach him a "lesson." Knowing of Nikko's intention to sell his hair, John referred to it as an "asset"—the "bank account" on top of his head. Another acquaintance similarly regarded Nikko's hair as his "prized possession" recalling, "[h]e was always in his hair or always fixing his hair." John went so far as to warn Nikko directly, "don't be surprised if that—that hair gets cut off" "one of these days."

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Read More

Reps. Clay Fuller, Diana Harshbarger, and Keith Self are cosponsors of H.R. 10501, introduced three weeks ago:

The Communist Control Act of 1954 is amended—

in section 3 (50 U.S.C. 842), by striking "or any successors of such party" and inserting ", the Democratic Socialists of America, or any successors of such party or organization"; and

in section 4(b) (50 U.S.C. 843(b))—

by inserting "the organization now known as the Democratic Socialists of America," after "the organization now known as Communist Party of the United States of America,"; and

by inserting "or any successor organization" after "any unit or subdivision of any such organization".

What this would do isn't entirely clear. Title 50 U.S.C. § 843 subjects covered organizations to "all the provisions and penalties of the Internal Security Act of 1950," but that has largely been repealed. Title 50 U.S.C. § 842 provides,

The Communist Party of the United States, or any successors of such party regardless of the assumed name, whose object or purpose is to overthrow the Government of the United States, or [any U.S. state or local government] by force and violence, are not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof ….

Whether that would strip the DSA of, say, status as a corporate body or some such is unclear; see Communist Party v. Catherwood (1961) for the Court's one attempt to interpret the statute, which concluded that the Party wasn't excluded from employer registration under state unemployment insurance law.

But whatever the bill might do precisely, its only possible meaning would be to strip the DSA of at least some ordinary protections that all other organizations, including political organizations, enjoy, based on its viewpoint. That would violate the First Amendment.

10/9/1954: Justice Robert H. Jackson dies.

Amnesty International USA and the ACLU issued a report last month purporting to document what they describe as an illicit crackdown on "pro-Palestine" expression since October 7. Needless to say, I think the problem has primarily been the opposite, university officials and local politicians and prosecutors being far too indulgent of illicit behavior by Hamasnik protestors, including vandalism, threats, disruptions, harassment and violence.

Be that as it may, the report makes a big to-do over the fact that universities have cracked down on illicit behavior by anti-Israel activists in ways that constitute disparate treatment. In particular, the report suggests that many universities that have a history of being extremely lax about disciplining rule-breaking student protestors in other contexts have been much harsher toward anti-Israel protestors.

There is some truth to that conclusion, but I don't find the claim that alleged viewpoint discrimination required universities to stand down, for three interrelated reasons.

First, arguing some sort of estoppel for cracking down on rule-breaking is a bad legal argument. "But your honor, the government did not prosecute the last ten rapists" isn't going to get you far.

Second, the failure of universities to properly punish misbehavior by, say, climate activists was itself viewpoint discriminatory. One can hardly imagine, say, Columbia University, acting with equanimity if anti-abortion or anti-affirmative action protestors engaged in the illicit shenanigans that leftist protestors have engaged in.

And finally, civil rights law require universities to take action against illicit hostile environments. Climate change activists may have broken university rules, but they did not intimidate, harass, and engage in violence against any identifiable group protected by civil rights laws. And that's a legally crucial difference. I elaborated on these points in a recent article:

From Outlaw v. Outlaw, decided in 2019 by Judge Katharine von Ter Stegge (Ore. Cir. Ct.) but just posted on Westlaw; the lawsuit was brought by a woman against her ex-husband and her ex-mother-in-law, all with the last name Outlaw:

In April 2017, [mother-in-law] arrived at [the then-wife-and-husband's home] in order to provide emotional support to [husband].

In June 2017, [husband] filed Petitions for Dissolution of Marriage and a Temporary Protective Order of Restraint against Plaintiff. Plaintiff then filed a Motion requesting exclusive use of the [home]. On approximately July 14, 2017, Defendant [mother-in-law filed a Petition for Restraining Order to Prevent Abuse of Elderly Person or Person with Disability ("EPPDAPA Petition") against Plaintiff as the Respondent.

The EPPDAPA Petition included allegations that Plaintiff verbally abused [mother-in-law], stole her property, and antagonized her through late-night use of laundry machines adjacent to her living quarters, including allegations that Plaintiff ran the dryer with sneakers in it during sleeping hours. [Mother-in-law] also alleged that Plaintiff rendered the bathroom she was using non-operational by forcefully removing pipes, the toilet, and the door to the bathroom.

On July 21, the EPPDAPA Petition was granted on a temporary basis pending a contested hearing. The resulting EPPDAPA restraining order ("Restraining Order") contained various restrictions on Plaintiff. Plaintiff was restricted from being within 150 feet of [mother-in-law] or making any contact with her. Plaintiff was also ordered to move from the Hassalo House and to remain at least 150 feet away from it. Plaintiff was served with the Restraining Order and left the house immediately.

Part I and Part II.

Perhaps the most wrongheaded analysis in the Report is this:

Because the government may not "conscript private institutions to act as censors by dangling the threat of civil liability for a hostile environment," the First Amendment "'demands substantial deference to a college's decision not to take action against' students who engage in expressive activity on matters of public concern."
In other words, courts must "'defer to colleges' decisions to err on the side of academic freedom.'"

Whereas a grade school's failure to take action against a student who sexually harasses a classmate might well support an inference of deliberate indifference to that harassment—because any reasonable actor would intervene—the same is not true when a university determines how to enforce rules regarding the use of campus spaces in light of its academic mission and competing claims of different groups."

"Expressive activity" is doing far too much work here. Universities have rules against vandalism, harassment, intimidation, and also have time, place, and manner restrictions for protest/speech activities, to avoid disruption. You might, for example, be able to chant on the campus green at lunch time, but not in the campus library.

Breaking these rules--vandalizing, harassing, intimidating, disrupting contrary to campus rules are often "expressive activities." But they are not protected by the First Amendment, and have nothing to do with academic freedom.

And to the extent these rules are clearly stated in the student handbook, everyone breaking the rules has fair notice of what the rules are. Suggesting that universities should get deference in enforcing these rules is an open invitation to college officials to discriminate; to, for example, have a full-on campus wide meltdown when students disrupt a "Take Back the Night" rally, but do nothing when a Hillel event is disrupted.

Indeed, in a recent Harvard Law Review article, Prof. Eidelson and Hellman, cited frequently in the USCCR report, positively endorse such discrimination, suggesting that universities, for reasons that make zero sense to me, may have a greater reason for not intervening in the context of debating the Israel-Palestine conflict than elsewhere. Read More

The Democratic Socialists of America ("DSA") have won an unprecedented number of Democratic primaries, and their candidates are on the ballot now in many places. Even those Democrats who are not members will follow much of their platform because that is what activists in the Democratic Party want to see done. DSA members may well elect the next Speaker of the House of Representatives, who will be second in line for the presidency.

Among the Democratic Socialists of America who have been nominated for seats in Congress in this year's midterm elections are:

U.S. Senate Nominations

Angie Nixon (Florida): The state representative won a major upset for the Democratic Senate nomination in Florida, marking a notable statewide milestone for a democratic socialist candidate.

U.S. House Nominations

Claire Valdez (New York, NY-7): Won the nomination in the district of retiring Rep. Nidia Velázquez.
Darializa Avila Chevalier (New York, NY-13): Defeated sitting incumbent and Congressional Hispanic Caucus Chair Adriano Espaillat.
Brad Lander (New York, NY-10): Won the nomination over incumbent Rep. Dan Goldman (though note he left the DSA following its response to the Oct. 7, 2023 attacks).
Melat Kiros (Colorado, CO-1): Unseated long-serving incumbent Rep. Diana DeGette in Denver.
Chris Rabb (Pennsylvania): Secured the Democratic nomination for a Philadelphia-area House seat.
Donavan McKinney (Michigan): Won the nomination in a Detroit-area House district.
Alexandria Ocasio-Cortez (New York, NY-14): Won renomination in her congressional district (endorsed by her local DSA chapter).

Because of the Democratic Socialists of America's rise to power, I wanted to know more about what they stood for. I googled their Platform, which is titled "Workers Deserve More," and I will quote from it below in bold face and respond in ordinary type. Much of what I will quote comes from a section of the Platform that describes "What We Fight For." Here are just a few key elements of the DSA's platform.

[1.] Demilitarize police departments … and redirect funding to public services as steps towards fully abolishing the police and prison system which protects the rich and jails the poor. Treat drug addiction and mental illness as health issues, not crimes.

One morning in late September, Carli Heller opened up an artificial intelligence chatbot and began venting. She took aim at the Lee County Sheriff's Office in Florida, saying she was "going to shoot up the sheriff's right the f— now," she wrote to the phone app, according to a probable cause statement. Heller continued venting a day later, writing that it was "100% LAST CHANCE" and that she "GOT A NEW F—— GUN TODAY."

Anthropic's safety features triggered and sent the chats to its human review team to analyze. The team believed there was a big enough risk to escalate the risk to the FBI, which then notified the sheriff's office. Authorities arrested Heller on Sept. 30, charging her with making a written or electronic threat of a mass shooting or act of terrorism, a felony under Florida law to which she pleaded not guilty.

Heller admitted writing the messages but denied any intent to carry them out, the report says. She pleaded not guilty.

I doubt that this is a punishable threat, at least under the Florida law, Fla. Stats. § 836.10, unless there is evidence that the woman subjectively realized at the time that the message would be communicated to a human being who would perceive it as a threat. T.R.W. v. State (Fla. App. 2023) makes clear that "To prove the commission of a violation of section 836.10, the trier of fact must find that the defendant transmitted a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat." Simply typing a prompt into a chatbot, expecting it to be viewed only by the software, wouldn't qualify.

Civitas Outlook published my review of Senator Ted Cruz's biography about Justice Clarence Thomas. The introduction sketches why I think so highly of Cruz's book, and why I think not-so-highly of other Supreme Court books.

Three general types of books about the Supreme Court exist. First, most books are based entirely on publicly known information. These books, often written by academics, rely primarily on the author's opinion and analysis. Second, some books provide inside information about the Court that largely comes from anonymous sources. These books, usually authored by journalists, are intriguing but are impossible to verify because unnamed sources have unknown biases. Third, few books deftly blend public and private information, most of which is directly attributed to named sources. With these tomes, readers learn directly from the principals, and there is no speculation about anonymous sources. This final category, usually an authorized biography, is the rarest and most useful because few authors have earned such trust at the Court.

Senator Ted Cruz's new biography about Justice Clarence Thomas, Going Further, is a must-read contribution to this third genre of Supreme Court books. Indeed, Cruz is uniquely qualified to write this book because he has observed the third branch from three perspectives over three decades: as a law clerk to Chief Justice Rehnquist, as a Supreme Court litigator in public and private practice, and as a member of the Senate Judiciary Committee. Most importantly, Cruz has earned the trust of Clarence Thomas. If "somebody else was asking," Thomas said, "I would say no. But if it's you writing, I'm glad to do it." In late 2025, Cruz visited the Thomas chambers six times over six months, compiling nine hours of on-the-record interviews. Justice Thomas did not speak "on background" like other Justices trying to improve their reputation. Thomas was an open book.

Often, when I read a book about the Supreme Court, there is little new material. Indeed, you can safely skip most books in the first category unless you find the author's perspective agreeable. And when I read a book in the second category, I am usually titillated, but left to wonder, "How accurate is this information?" But I could not put Cruz's book down, because virtually every attribution is backed up by one of his sit-downs with the Justice. Moreover, as Cruz acknowledges, "some of what Justice Thomas said surprises me." Ditto. I hope that the full or partial transcripts of those interviews might be published in the future.

The conclusion, I think, sums up who Justice Thomas is:

Since President Trump's re-election, some conservatives have called on Justice Thomas, as well as Justice Alito, to retire. These entreaties fell on deaf ears. As Justice Thomas has said many times, he doesn't care what people write about him. But a resignation would go against everything Thomas stands for. As Thomas told Cruz, "If you collapse at the end of this, you've lived a noble life."

On Wednesday I recorded an episode of the "Blessings of Liberty" podcast, hosted by Jeffrey Rosen, on Suncor Energy v. Boulder County. I was joined in the discussion by my friend Donald Kochan, Professor of Law and Executive Director of the Law & Economics Center at George Mason University's Antonin Scalia Law School.

As one might anticipate, we have different views on the proper outcome in the Suncor case. I think our exchange helped elucidate what is at issue in the case, but you can judge for yourself below.

For more on Suncor, here are (some of) my posts on the subject (with more to come):

Climate Change Goes Back to the Supreme Court -- Colorado Edition, Feb. 23, 2026.
Previewing Suncor Energy v. Boulder County, Mar. 6, 2026.
Amicus Brief in Suncor Energy v. County Commissioners of Boulder County, Aug. 3, 2026.
Supreme Court Term to Start Hot, Aug. 6, 2026.
As Suncor Approaches, Justice Alito Recuses, Sept. 28, 2026.
Buschbacher: Did Prof. Adler File His Amicus Brief for the Wrong Side in Suncor?, Oct. 1, 2026.
Unpacking the Suncor Oral Argument: Two Upcoming Events, Oct. 5, 2026.
A Response to Michael Buschbacher on Suncor Energy v. Boulder County, Oct. 5, 2026.
Justice Alito Gives a Fuller Explanation of His Suncor Recusal, Oct. 6, 2026.

An excerpt from a long opinion by Judge Jasmine Yoon (W.D. Va.) Monday in Doe v. Albemarle County School Bd.:

Plaintiff J. Doe is a nonbinary student who attends a high school that is operated by Defendant Albemarle County School Board ("ACSB"). Doe has experienced gender dysphoria for as long as they can remember. As a result of discomfort with their biological sex and experiences being misgendered, Doe has battled significant symptoms of anxiety.

In September 2025, a Turning Point USA ("TPUSA") student club at Western Albemarle High School ("WAHS") informed the principal that they planned to host guest speaker and Defendant Victoria Cobb for an event entitled "Two Genders: One Truth." Cobb, the president of a Christian lobbying organization, has publicly opposed gender affirming efforts and denied that gender identity is immutable. After receiving community pushback, as well as demand letters advocating both for and against allowing the event, ACSB decided that the speaker event could proceed as a club meeting during the lunch hour, where student attendance was voluntary, so long as the event remained orderly and respectful. The club promoted the event with flyers throughout the school during the week leading up to the event.

Doe sued, "claiming that ACSB's decision to allow the TPUSA club to host and promote the Event constituted deliberate indifference to severe and pervasive sex-based harassment." The court rejected the claim on the facts, but concluded that allowing the event may have created a subjectively hostile educational environment:

10/8/1888: Chief Justice Melville Fuller takes the judicial oath.

The Volokh Conspiracy

Statement About Maine Lobster Industry as a Whole Can't Be Actionable Group Defamation

Kafka's The Trial "Was Not Supposed to Be an Instruction Manual"

I Am Now "THE ENEMY!" (as Is Everyone Who Uses the Term "Artificial Intelligence")

Is Hair on Your Head "Personal Property" for Purposes of Robbery Law?

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

3 Congressmen Want to Strip Democratic Socialists of America of Legal "Rights, Privileges, and Immunities"

Today in Supreme Court History: October 9, 1954

Open Thread

Disparate Treatment of Anti-Israel Protestors?

Outlaw vs. In-Law Outlaw

Problems with the New US Civil Rights Commission Report on Antisemitism, Part III

The Democratic Socialists of America Platform

Can a Chatbot Prompt Be a Punishable Threat?

My Review of Ted Cruz's Biography of Justice Thomas

Adler v. Kochan on Suncor Energy v. Boulder County

Does Allowing Turning Point USA "Two Genders: One Truth" Event to Be Held and Promoted at Public School Violate Title IX?

Today in Supreme Court History: October 8, 1888

Open Thread

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