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The Hinkley Hilton

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This evening, immediately after I turned my phone on, I saw headlines about shots fired at the Washington Hilton where President Trump was attending the White House Correspondents Dinner. For the second week in a row, I do not get a leisurely return to the cloud. Shavua Tov.

For the past two years, the Federalist Society has held its national lawyers convention at the Washington Hilton, better known as the Hinkley Hilton. This is the place where John Hinkley, Jr. shot President Reagan and Press Secretary James Brady in 1981. You may better know Brady as the namesake of the Brady Gun Control Act that was challenged in Printz v. United States. Randy and I feature a photograph of the hotel in our discussion of Printz.

In 2023, I bid farewell to the Mayflower, and in 2024, I wrote about the new experience at the Hilton. The experience was, on balance, negative. I am beyond grateful that the Convention will be returning to the Mayflower in 2026 (thanks Sheldon).

But having spent some time at the Hilton, I can see why it poses unique security threats. To start, it is a functional hotel. Even if there is a "hardened" event in the ballroom (located in the basement), there are still thousands of guests walking around inside and outside the building.

When I traveled to the convention last November, Vice President Vance was speaking at the 250th U.S. Marine Corps Birthday Ball. Because I was a hotel guest, I was able to clear the perimeter security. Later that evening, I decided to go to the gym, which was accessible through a different elevator. The gym was also in the basement. After I finished working out, just of curiosity, I walked towards the ballroom. By that point, the event was over, Vance had left, and the magnetometers were gone, but I was able to walk right to the the ballroom, even though access was still being restricted. The thought crossed my mind of how easy it would be to sneak into the venue.

There are many unknowns now.

President Trump is about to give remarks in the Brady press room.

Update: It appears the alleged shooter was a guest at the hotel. The video shows he was taken down near the Terrace Foyer on the Terrace Level. You can see from this map how close the Health Club was.

 

Links to My Posts on Chatrie v. United States, the Geofence Warrant Case

Fourteen posts in all, from 2022 to the present.

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With the Supreme Court set to hear argument in the geofence warrant case, Chatrie v. United States, on Monday, I thought I would provide links to all my posts relating to the case and the issues over the years.  Here they are, in reverse chronological order:

  1. The Difficulty of the Search Question: More Thoughts on Chatrie, April 24, 2026.

2. The Slowing of Fourth Amendment Law, and Now Advisory Opinions: A Comment on Chatrie v. United States, April 16, 2026.

3. A Narrow Resolution on Geofence Warrants?: A Thought on Chatrie, April 14, 2026.

4. My Amicus Brief in the Geofence Warrant Case, Chatrie v. United States, April 1, 2026.

5. The Carpenter Adjustment, March 1, 2026.

6. Final Version, Data Scanning and the Fourth Amendment, February 24, 2026.

7. The Fourth Circuit's Geofence Warrant Case Ends Not With a Bang But a Whisper, March 2, 2025.

8. Fourth Circuit Votes to Rehear Its Geofence Warrant Case, November 1, 2024.

9. The ACLU's Response to My Post on the Fifth Circuit's Smith Ruling—And My Reply to the ACLU, August 16, 2024.

10. The Fifth Circuit Shuts Down Geofence Warrants—and Maybe a Lot More, August 13, 2024.

11. Accessing Google Location History Records Is Not a Search — At Least When Limited — Fourth Circuit Rules, July 10, 2024.

12. Did Google Just Defeat Every Geofence Warrant?, December 12, 2023.

13. The First Geofence Warrant Case Reaches a Federal Court of Appeals, December 9, 2023.

14. The Fourth Amendment and Geofence Warrants: A Critical Look at United States v. Chatrie, March 11, 2022.

Free Speech

Plaintiffs Can't Sue the Chinese Government with Largely Sealed Complaint

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From Chief Judge James Boasberg (D.D.C.) Friday in Shofner v. Shenyang Dadong District People's Court:

Plaintiffs … bring this action arising from an early-education investment project in Shenyang, China, asserting claims under the Foreign Sovereign Immunities Act, the Alien Tort Statute, and the Torture Victim Protection Act. Plaintiffs filed an eight-page Complaint on the public docket. They concurrently moved to file a separate, unredacted Complaint—together with a voluminous set of exhibits—under seal….

Plaintiffs' Motion arises from concerns that the Complaint contains "sensitive information relating to personal safety, foreign-related legal procedures, and ongoing matters involving foreign government entities." Two flaws, however, pervade their request: the scope of information Plaintiffs have redacted far exceeds the narrow request they claim to advance, and the harms they invoke—threats from Defendants themselves—are harms that sealing cannot prevent….

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Free Speech

Thought Experiment: It's 2030, and the Newsom Justice Department Indicts a Conservative Group for Paying Antifa Leaders

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I blogged Wednesday about the indictment of the Southern Poverty Law Center for, among other things, supposedly defrauding donors. The theory is that the SPLC raised money by telling donors that it was aiming to "dismantle" violent extremist groups—but spent over $3M paying hate group leaders for information and, in at least one instance, to actually put out hate messages at the SPLC's direction. The indictment also alleges that, to hide the source of the funds, the SPLC caused false statements to be made to banks: It had its employees open accounts that it claimed were owned by them personally, on behalf of certain shell entities, but were really owned by the SPLC. I thought it might be helpful to think about this using a hypothetical, and seeing what we think about both the SPLC case and the hypothetical together.

Let's say that the SPLC prosecution didn't happen in 2026, and we're now in 2030. Gavin Newsom is President, and the Justice Department announces an indictment. The target is a prominent conservative activist group. The indictment alleges the group raised money by telling conservative donors that it would fight antifa and other sometimes violent left-wing extremist groups. It turns out that it developed an extensive network of paid informants within the leadership of those groups, and indeed paid money to at least one to actually spread leftist extremist messages.

The Justice Department says all this was fraud on the donors, and also that in the process the group had employees open bank accounts using group funds but claiming the funds were personal, and thus lied to the banks and violated anti-money-laundering rules. What would we, as people sympathetic in some measure to the group's overall mission, think?

[1.] I expect some of us might think the group was being kind of slimy. It's been talking about all this left-wing extremism it's fighting, but how much of it was actually ginned up by the group instead?

[2.] At the same time, some of us might think the group is being pretty cunning. Here it's getting lots of information about its enemies. To the extent it's prodding some of its paid informants to actually say extremist things, maybe it's effectively discrediting its enemies. And if we think there really would be plenty of genuine violent left-wing extremism even without the group's funding, we might think that its spending was actually pretty useful to its stated cause. Slimy and effective, after all, aren't always inconsistent for political advocacy groups. Sure, the sliminess might on balance cancel out the effectiveness, but maybe not always.

[3.] We might also wonder whether the Newsom Administration is targeting the group because of its ideology, rather than out of a fair application of neutral prosecutorial judgment. That's always a plausible concern with prosecution of political groups by political actors, but especially in so in a highly politicized time.

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Free Speech

Eighth Circuit Upholds Ban on Trespassing for Surveillance Purposes

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From PETA, Inc. v. Reynolds, decided Thursday by the Eighth Circuit (Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender):

[Iowa's] general trespass statute defines "trespass" to include "[e]ntering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner …." "A person has been notified or requested to abstain from entering or remaining upon or in the property … if … [t]he person has been notified to abstain from entering or remaining upon or in property personally, either orally or in writing …." When an ordinary trespass does not result in bodily injury or property damage exceeding $300, the offense is a "simple misdemeanor" and is punished by a fine between $105 and $855 and up to 30 days of imprisonment.

In 2021, Iowa decided its general trespass statute was not deterring trespassers from unlawfully entering private property to record their trespasses. So it enacted § 727.8A to create a new "trespass-surveillance" offense, which it treated more harshly than ordinary trespass. For instance, under § 727.8A,

[a] person committing a trespass as defined in section 716.7 who knowingly places or uses a camera or electronic device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class "D" felony for a second or subsequent offense.

Iowa punishes aggravated misdemeanors with a fine between $855 and $8,540 and up to two years of imprisonment, and class D felonies with a fine between $1,025 and $10,245 and up to five years of imprisonment.

Two … animal-welfare groups, including ICCI [Iowa Citizens for Community Improvement], developed as-applied challenges on remand, contending the statute's prohibition against using cameras while trespassing chills their members' speech when applied to prevent them from recording on private property that is otherwise open to the public after being asked to leave but not to stop recording. Relevant here, ICCI alleges its members intentionally record themselves committing ordinary trespasses, "particularly … at political and corporate sites," to draw attention to their activities. ICCI alleges its members are willing to suffer the consequences for ordinary trespass but the heightened penalties for trespass-surveillance have chilled their speech….

Whether the First Amendment protects ICCI's members' speech in this context is an open question. We know "freedom of speech includes expression through the making and sharing of videos" in some instances. But the Supreme Court "has never held that a trespasser … may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes …." Lloyd Corp. v. Tanner (1972); see also Hudgens v. NLRB (1976) (holding picketers "did not have a First Amendment right to enter [a privately owned] shopping center for the purpose of advertising their strike"). We need not resolve this question because even assuming recording while trespassing implicates the First Amendment, ICCI's as-applied challenge fails.

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Politics

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

Vigilantes, less-lethal munitions, and a bananas ID theft case.

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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 1960, the Supreme Court as good as erased the oath-or-affirmation requirement from the Fourth Amendment, thereafter permitting warrants to issue based on hearsay—instead of firsthand testimony from an actual witness. Now we're asking the Court to stop flouting text, original meaning, and a deep well of pre-1960 precedent and to take up the case of Michael Mendenhall, who was arrested and had his Denver office searched based on thirdhand hearsay from an obviously unreliable source. Click here to learn more.

New on the Short Circuit podcast: Live from Penn Law we continue our #12Months12Circuits series with Circuit Numero Tres. Reverse discrimination, prophylactics, and semi-sanctionable hallucinations.

  1. Based on a Presidential Proclamation, the current administration started summary deportation proceedings without adhering to procedures—such as allowing people to apply for asylum—that Congress adopted. A set of nonprofits sue and receive an injunction and class certification. D.C. Circuit: Which was correct. Congressional statutes > stuff the President says. Dissent: I agree the Proclamation is too broad in some respects. But I'll note that the inhabitants of North Sentinel Island don't have standing in this case.
  2. More than 99% of transgender female prisoners held in federal custody are housed in male prisons. The remaining <1% are housed in female prisons based on individualized factual findings by the Bureau of Prisons that these inmates are at particular risk of harm if housed in male prisons. In 2025, President Trump issues an executive order requiring these inmates to be transferred to male prisons. Eighteen trans inmates sue and secure a preliminary injunction against the transfer. D.C. Circuit (over a dissent): Which they may be entitled to, but the district court needs to do an individualized assessment for each inmate. Injunction vacated. Read More

Free Speech

Eleventh Circuit Rejects Roy Moore's Libel Suit Over "Banned from … Mall … for Soliciting Sex from Young Girls" / "One He Approached Was 14" Ad

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From the long opinion in Moore v. Cecil, decided today by Judge Elizabeth Branch, joined by Judges Jill Pryor and Frank Hull:

In 2017, Roy Moore ran as the Republican nominee in a special election to fill an open seat for one of Alabama's United States senators. In the final weeks before the election, multiple news outlets reported that several women had accused Moore of inappropriate sexual conduct with them when they were young. Senate Majority PAC ("SMP") grabbed onto the news reports and ran a campaign ad that stated, among other things, in separate individual frames that (1) "'Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls,'" and (2) "[o]ne he approached 'was 14 and working as Santa's helper.'" [An underlying news report had "asserted that Moore approached Miller and told her she was pretty when she was 14 years old and working as Santa's helper and that Moore asked Miller out on dates two years late," so the argument appears to be that he had never approached a 14-year-old for sex. -EV] SMP ran the ad hundreds of times, and Moore eventually lost the election.

Moore sued SMP for defamation and false-light invasion of privacy under Alabama law, arguing in relevant part that the two statements above when read together created the false defamatory implication that he had solicited the 14-year-old girl working as Santa's helper for sex…. The jury found SMP liable for defamation and false-light invasion of privacy, and it awarded Moore $8.2 million in compensatory damages….

SMP appealed, and the Court of Appeals held in its favor:

Moore's case … involves an allegation of defamation-by-implication (or as Moore puts it, the statement that resulted from the juxtaposition of frames 2 and 3 of SMP's ad), not express defamation. {Moore's theory was that the statement in frame 2 that he "was actually banned from the Gadsden Mall … for soliciting sex from young girls," when combined with the statement from frame 3 that "[o]ne he approached 'was 14 and working as Santa's helper,'" falsely created "a new statement" that he solicited sex from Wendy Miller when she was 14 years old and working as Santa's helper.}

Defamation-by-implication is fraught with subtle complexities and is more nuanced than express defamation. "'Defamation by implication' occurs when a defendant juxtaposes a series of facts to imply a defamatory connection between them." Thus, "a defamation by implication stems not from what is literally stated but from what is implied."

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The Difficulty of the Search Question: More Thoughts on Chatrie

Another in a series.

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I have been posting on Chatrie v. United States, the Supreme Court's geofencing case to be argued on Monday.  In this post, I wanted to talk a bit on why the search question is particularly hard.

The Supreme Court has long struggled to explain what makes government action a "search" of an individuals' "persons, houses, papers, and effects."  The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood,  which were about what kinds of warrants were permitted to conduct a physical search.  But a central challenge of modern Fourth Amendment "search" law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion.

There is broad agreement that the Fourth Amendment needs to extend beyond actual physical intrusion: If it didn't, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records.  The hard question is, what's the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?

The Court has not done the best job at articulating this, I think.  It did a few things that make it extra hard. Two under-appreciated things stand out.

First, the Court has ignored a lot of the Fourth Amendment's text, which made the issue a lot harder to understand.  The Fourth Amendment prohibits unreasonable "searches" of "persons, houses, papers, and effects."  But the Court's precedents have often just described the issue as being what is a "search," ignoring the required thing to be searched in that language: "persons, houses, papers, and effects."  The word "search" has long had a range of different meanings, going back to 18th Century, and reducing the question to that one word adds a lot of confusion: It strips the constitutional question of its context and its history of the cases like Wilkes, Entick, and the Writs of Assistance case.

Of course, the full text is not always ignored.  As the Court's curtilage caselaw has frequently noted, the Fourth Amendment "indicates with some precision the places and things encompassed by its protections:  persons, houses, papers, and effects." Florida v. Jardines, 569 U.S. 1 (2013).  But I think it has been under-appreciated that the proper question is not what is a "search" in some isolated or abstract sense, but rather what is a "search" of "persons, houses, papers, and effects" that reflects the understanding of those terms in the major disputes that inspired the enactment of the Fourth Amendment.

Second, many modern Justices have assumed the correctness of a simple narrative about the Fourth Amendment that Justice Brennan introduced in Warden v. Hayden, 387 U.S. 294 (1967).  Looking for a framework to justify lots of innovations in Fourth Amendment law, Justice Brennan made a pitch that the Fourth Amendment had previously been based on property principles but was henceforth to based on privacy principles: Read More

So There Was More To The Story

Kannon Shanmugam and Masha Hansford move from Paul Weiss to Davis Polk.

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On Monday, I wrote about an unusual situation at the Supreme Court: even though Kannon Shanmugam  of Paul Weiss was counsel of record in a case, it was argued by Elizabeth Prelogar of Cooley. I couldn't quite make sense of the switcheroo. I surmised,"There must be more to the story."

And so there was more to the story. Today Kannon Shanmugam, as well as Masha Hansford, moved from Paul Weiss to Davis Polk. I had heard a rumor of this after I wrote my post, which has now been confirmed.

This move doesn't fully explain exactly why Shanmugam, or someone at Paul Weiss, didn't argue the case. I suspect there is still more to the story.

In related news, Jeff Wall and several other partners have moved from Sullivan and Cromwell to Gibson Dunn.

The game of SCOTUS bar musical chairs continues.

Spotting Scammers with "Verified" Dating App Profiles

Understanding what photo verification means on a dating app (and what it doesn't)

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It sounded at least somewhat promising when Tinder announced last year that it would start requiring photo verification for new users across the United States. Deploying a technology called "Face Check", Tinder would have every such user take a video selfie whose coordinates would be compared against pictures uploaded with the profile. While this is a partial improvement over the previous state of things where facial verification was generally optional, significant flaws are emerging.

Earlier this month, journalist Christophe Haubursin uploaded a video to YouTube that showed a strange phenomenon whereby a lot of Tinder profiles exhibited a similar pattern without obvious initial explanation. The first eight profile pictures would show one individual, but then the ninth picture would be an artistic version of a different individual (say, a face embedded in a painting or mural). A reverse image search would uncover that the first eight pictures were of a--conventionally good-looking--person with a different identity than that portrayed by the profile.

Haubursin began suspecting that Face Check was deeming "verified" profiles where as few as one of the pictures corresponded to the required video selfie. He tested this hypothesis himself and confirmed it: all a profile needed to render it verified was one (even stylized) picture that matched the video selfie, even if it was preceded by eight pictures of someone who looked completely different and who most people would assume was the actual holder of the profile. Haubursin also contacted some of the people with these types of profiles, and unsurprisingly at this point they were actually crypto scammers. Read More

More

Recent Volokh Posts

1

Justice Clarence Thomas on the Declaration of Independence

2

Today in Supreme Court History: April 26, 1995

3

Open Thread

4

The Hinkley Hilton

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Judge Finds Epstein-Related Plaintiff Lies, Spoliation, and Lawyer Misconduct in Rape Lawsuit Against Investor Leon Black

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Links to My Posts on Chatrie v. United States, the Geofence Warrant Case

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Plaintiffs Can't Sue the Chinese Government with Largely Sealed Complaint

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Thought Experiment: It's 2030, and the Newsom Justice Department Indicts a Conservative Group for Paying Antifa Leaders

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Eighth Circuit Upholds Ban on Trespassing for Surveillance Purposes

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Today in Supreme Court History: April 25, 1938

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