The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

It's a pretty obvious way to think about it, but I thought it might be the sort of obvious that was still worth making explicit:

Imagine a right-wing advocacy group is very upset about a mosque, because it thinks one of the imams is a supporter of anti-American Islamic extremism.

They go to the mosque in the middle of services, and start shouting "the time for Judgment had come," blowing whistles, chanting "Muslim Extremists Out!," "Remember 9/11!," and the like. They approach the imam and congregants in a way that some perceive as menacing, and loudly berate the imam with questions about jihadism and Muslims wanting to implement Sharia.

They chant, "This ain't God's house. This is the house of the devil." They approach a female congregant, who is there with two young children, and demand to know in an allegedly hostile manner why she doesn't support the protesters. They call people "Nazis," and ask children, "Do you know your parents are Nazis? They're going to burn in hell."

They block the stairs leading to the mosque's childcare area and make it difficult and allegedly hazardous for parents to retrieve their children. After causing most of the congregants to flee, some of them chant, "Who shut this down? We shut this down!"

There's a person accompanying them to livestream the events to his large audience. He's generally politically aligned with their message, so there's reason to think he shares their goals. He understands the whole point of what the other defendants were doing is to make things "traumatic and uncomfortable" for the congregants: He tells his viewers that "the whole point of [the operation] is to disrupt."

While the intrusion is happening, he asks one of the disrupters, "Who is the person that we should talk to? Is there an imam or something?" He joins the others in approaching the imam and largely surrounding him, standing close to him and peppering him with questions. He doesn't leave when the imam asks him to leave. He stands at the main door of the mosque, where he confronts some congregants and allegedly physically obstructs them as they try to exit the mosque to challenge them with what he says are "facts" about extremist Islam.

Before the incident, he had met all the other defendants for a pre-op briefing, during which the organizers advised the other defendants and him that their operation would target the mosque, and provide instruction on how the operation would be conducted. He is careful to maintain operational secrecy by reminding his driver not to disclose the target of the operation, and he steps away briefly during the planning session so his microphone wouldn't accidentally divulge certain portions of what the planners are saying. He assures the other defendants that he won't prematurely disclose the target of the operation.

Would you be inclined to think that the livestreamer is guilty of conspiring with others to physically obstruct the worship services? Or would you say that there isn't enough evidence of conspiracy, which is to say (to oversimplify) an express or implied agreement to act in concert in order to accomplish the disruption?

As you might gather, the hypothetical facts above are closely drawn from the allegations (which of course at this point are just allegations) in the Don Lemon indictment (see here and here), but changed to reflect the hypothetical right-wing disruption of the mosque rather than a left-wing disruption of a church.

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The indictment in U.S. v. Levy-Armstrong has been unsealed; I excerpted the key allegations as to the disruption itself in this post. But what about Don Lemon, the former longtime CNN reporter who livestreamed the disruption?

If a person breaks a speech-neutral law in order to record and publish something, his motivation generally doesn't give him any First Amendment right to break the law. That's true as to trespass laws, wiretapping laws, and more. And that's true whether the person is working for a professional news outlet or just acting on his own.

At the same time, the government still has to show all the elements of the crime as to each defendant, and sometimes it might be unable to do that as to the person who is just trying to report on the event. An example: The crime of burglary generally (to oversimplify) requires unlawfully entering onto property with the intent to commit a further crime there, often theft. If a gang of people break into a store in order to steal from it, they may well be guilty of commercial burglary.

But if someone else walks into the store and livestream them doing it, then the elements of commercial burglary wouldn't be satisfied, because he didn't enter with the intent to commit a further crime. He is therefore not guilty—not because his acting as a journalist gives him a First Amendment immunity, but because his lack of intent to steal means the elements of the crime are absent as to him.

Lemon, together with other defendants, was indicted for violating 18 U.S.C. § 241, which in relevant part makes it a crime to

conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States

and 18 U.S.C. § 248(a)(2), which in relevant part makes it a crime to

by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.

To convict Lemon, the government has to show all the elements of the crime as to him. It has to show that he conspired with the others to oppress people in their free exercise of religion, which is to say that he entered into an express or implicit agreement with them to commit the underlying unlawful acts (§ 241). And it has to show (to oversimplify slightly) that he either personally used force or threat of force or physical obstruction to intentionally interfere with their religious worship (§ 248), or that he is guilty as a coconspirator or an accomplice.

Whether the government can do that, I assume, will be a matter for trial (or perhaps for pretrial motions practice, though I doubt that such motions will resolve the issue). Here are the government's factual allegations as to Lemon—again recall that they largely aim to prove a conspiracy between Lemon and the others, and not (with some exceptions) specific obstructive actions by Lemon:

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The indictment (in U.S. v. Levy-Armstrong) is here. The allegations are that defendants violated 18 U.S.C. § 241 which in relevant part makes it a crime to

conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States

and 18 U.S.C. § 248(a)(2), which in relevant part makes it a crime to

by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.

(Section 248(a)(1), the most commonly used part of the same statute, prohibits the same as to "obtaining or providing reproductive health services"; the statute is called the Freedom of Access to Clinic Entrances Act, but it has always covered both abortion clinics and places of worship.)

Here is the heart of the allegations about what happened at the church. I will blog separately about how the indictment bears on Don Lemon (the former long-time CNN reporter) who livestreamed the event:

Overt Act# 12: Continuing on the morning of January 18, 2026, all of the defendants, together with other co-conspirators, entered the Church sanctuary, with the first wave positioning themselves among the congregants and the second wave, led by defendants ARMSTRONG and ALLEN, commencing the disruptive takeover operation, in which the first wave of agitators then actively joined.

Overt Act# 13: As the pastor was beginning his sermon, defendant ARMSTRONG interrupted the service with loud declarations about the Church harboring a "Director of ICE" and indicating that the time for Judgment had come, and other co-conspirators immediately joined in by yelling and blowing whistles in a takeover attack on the Church, all of which quickly caused the situation in the Church to become chaotic, menacing, and traumatizing to Church members.

Overt Act# 14: While inside the Church, defendants ARMSTRONG, ALLEN, KELLY, RICHARDSON, LUNDY, CREWS, and AUSTIN and others led and/or joined with their co-conspirators in various chants, including "ICE Out!," "Hands Up, Don't Shoot!," and "Stand Up, Fight Back!," while gesturing in an aggressive and hostile manner, which congregants and the pastor perceived as threats of violence and a potential prelude to a mass shooting.

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Speaking of commandeering, today in Minnesota v. Trump, federal district court Judge Kate Menendez rejected Minnesota's request for an injunction against the Trump Administration's "Operation Metro Surge" immigration enforcement initiative in Minneapolis. Unlike my co-blogger Ilya Somin, I believe Judge Menendez was entirely correct to do so, as existing law does not remotely support Minnesota's claims.

As Judge Menendez recognized, the anti-commandeering doctrine is relatively narrow. It bars the federal government from issuing directives to state or local governments, Under the relevant cases, the federal government may not force state or local governments to administer or enforce a federal regulatory scheme or adopt federal law enforcement or regulatory priorities. For this reason, states are not obligated to assist the Department of Homeland Security in identifying, detaining, and deporting unlawfully present aliens any more than state or local law enforcement is required to assist the Drug Enforcement Agency in arresting and prosecuting those who use or possess (or even distribute) marijuana.

But the anti-commandeering doctrine does not prevent the federal government from pressuring states to cooperate, nor does it insulate states from the potentially burdensome or disruptive effects of federal law. Indeed, the relevant cases are quite clear on this. So, for example, New York v. United States held that it was permissible for the federal government to impose more stringent regulatory constraints and greater tax burdens on states that failed to address low-level radioactive waste in accord with the federal government's preferences. Under the Clean Air Act, states that fail to adopt and maintain adequate State Implementation Plans are not subject to injunctions, but can face more stringent offset requirements and direct federal regulation that promises to be more onerous and less sensitive to local concerns than state or local regulation would be. (Threatening highway funds, on the other hand, might be a bridge to far.)

Other cases, such as Garcia v. SAMTA and Reno v. Condon also make it abundantly clear that states get no special exemption from the burdens or disruptions that may be caused by federal law. That's the way federal supremacy works. If a given federal action is otherwise constitutional, it takes more than state or local displeasure to make the action unconstitutional. Indeed, were it otherwise state and local governments would have a de facto objectors veto (cf. heckler's veto) over efforts to enforce federal laws to which state and local governments object.

In her opinion in Minnesota v. Trump, Judge Menendez seemed particularly concerned with the line-drawing problem: How to differentiate permissible federal enforcement decisions from those that are unconstitutionally coercive. Recognizing that the federal government is entitled to focus or concentrate federal enforcement efforts in line with federal priorities, including by focusing such efforts in non-cooperating jurisdictions, on what basis can such efforts constitute commandeering? As noted above, that such decisions may be unwelcome, burdensome, or even punitive is not enough under current law. Even in the conditional spending context it takes more than a naked threat to withdraw a large pot of money for inducement to become compulsion, such as the sort of reliance interests we saw in NFIB v. Sebelius.

None of this means that everything the Trump Administration is doing in Minnesota is lawful (let alone desirable). Congressional oversight of the Trump Administration's immigration enforcement efforts, including (but not limited to) the tragic deaths of anti-ICE activists, is more than welcome. (Indeed, it is long overdue.) My point here is simply that whatever the legal or other problems with "Operation Metro Surge," the idea that it constitutes unconstitutional commandeering or otherwise violates the Tenth Amendment is not among them--and even though she may not have wanted to, Judge Menendez agreed.

This weekend car owners in New Hampshire were supposed to be done with regular automobile emission inspections. Although such inspections had been part of the New Hampshire's State Implementation Plan (SIP) under the federal Clean Air Act, the state legislature passed a law abolishing the program last year, effective today, January 31. Now, however, the inspections may be required after all.

Gordon-Darby Holdings, which owns the company that administered the program under a contract with the state did not want the program (and its associated revenue) to go away, so it filed suit, seeking an injunction to force New Hampshire to continue requiring automobile emission inspections. According to Gordon-Darby, New Hampshire was required to maintain the program unless and until it received approval from the federal Environmental Protection Agency. On this basis, the company went to court and—quite shockingly—prevailed.

In an order issued this past Tuesday in Gordon-Darby Holdings v. NH Department of Safety, federal district court judge Landya McCafferty enjoined New Hampshire from taking any action "to terminate, suspend, or otherwise cease implementation or enforcement" of the vehicle inspection program, on the grounds that ending the program would violate the Clean Air Act. Because the program was part of the state's EPA-approved SIP, it was now required under federal law.

Judge McCafferty's decision is shocking because it is well-established that the federal government cannot require that state governments adopt or enforce regulatory measures. Such "commandeering" is unconstitutional under clear and controlling Supreme Court precedent.

As the Supreme Court explained in New York v. United States¸ "the federal government may not compel the States to enact or administer a federal regulatory program." Rather, the federal government may offer inducements to states to encourage their cooperation. This is what is generally called "cooperative federalism." (Whether this is "cooperative" or adversarial in practice is of course another question.)

Under the Clean Air Act, should a state fail to submit, maintain, or enforce a SIP, the federal government will regulate in its stead (through a Federal Implementation Plan or FIP), impose more stringent requirements, and perhaps withhold some sources of federal funding (although perhaps not highway funding). A federal command or court injunction, on the other hand, is not an option. Indeed, that these are the only ways to get a state to comply has been black letter law since the 1970s when the federal government briefly considered arguing that states could be required to adopt particular regulatory measures, including (as it happens) vehicle emission inspection programs.

Were this not enough, the Court has also made clear that federal law may not force a state to maintain state laws that the federal government likes. Accordingly, in Murphy v NCAA the Court rejected the federal government's attempt to prevent New Jersey from repealing its laws no sports gambling (and on this point, no justice dissented). Congress can prohibit sports gambling if it wants to, but it cannot force states to enact or maintain such prohibitions. As the Court explained in Murphy, "A more direct affront to state sovereignty is not easy to imagine."

Judge McCafferty's declaration that "federal law continues to require New Hampshire to maintain an inspection program" is profoundly wrong. What is most astonishing, however, is that New Hampshire never argued otherwise. To the contrary, the state's attorneys conceded that "the requirements of the SIP are enforceable, that the SIP requires the State to enforce and implement the I/M program[, and] that this Court is obligated to issue appropriate orders directing the State to implement and enforce the SIP."

That a federal judge would get such a basic, and well-established, doctrine as anti-commandeering so profoundly wrong is concerning. After all, it is typically taught to first-year law students in the introductory Constitutional Law course. But the judge's omission is far less shocking than the New Hampshire Attorney General's office's concession. A federal judge can be forgiven for not considering an argument that was not raised by the parties (particularly if the argument is one that may be waived). Harder to explain is why a state AG would fail to defend his state's prerogatives in the face of an unconstitutional claim.

The court was correct that repeal of the emission inspection program renders New Hampshire's SIP noncompliant. But so what? Under the Clean Air Act there are procedures for redressing SIP inadequacies and imposing constitutionally permissible sanctions. There are even opportunities for private interests to sue the EPA if they believe the EPA is not responding to a state's failure with sufficient alacrity (Judge McCafferty's claim to the contrary notwithstanding). But nothing in the Clean Air Act (let alone the Constitution) gives the federal government (including a federal district court judge) to simply command a state to maintain a given regulatory program.

Tuesday's order only imposed a preliminary injunction against the state, so there may still be time for the state to vindicate its interest and undo this unconstitutional command. In the meantime, the state's failure to defend its sovereign interests is leaving New Hampshire car owners holding the bag.

Judge Shanlyn Park's order yesterday in Babylon Bee, LLC v. Lopez (D. Haw.), held unconstitutional Hawaii's Act 191. That law provided that "no person shall recklessly distribute… materially deceptive media in reckless disregard of the risk of harming the reputation or electoral prospects of a candidate in an election or changing the voting behavior of voters in an election." "Materially deceptive media" is defined as "[a]ny information, including any video, image, or audio, that"

Is an advertisement;

Depicts an individual engaging in speech or conduct in which the depicted individual did not in fact engage;

Would cause a reasonable viewer or listener to believe that the depicted individual engaged in the speech or conduct depicted; and

Was created by [certain digital technologies].

"Advertisement" is in turn defined as "any communication, excluding sundry items such as bumper stickers, that"

Identifies a candidate directly or by implication, or identifies an issue or question that will appear on the ballot at the next applicable election; and

Advocates or supports the nomination, opposition, or election of the candidate, or advocates the passage or defeat of the issue or question on the ballot.

The law provides a safe harbor for people who distribute material that "includes a disclaimer informing the viewer that the media has been manipulated by technical means and depicts appearance, speech, or conduct that did not occur." But for video and images, the disclaimer must, among other things (and to simplify slightly),

Appear throughout the entirety of the video [for videos];

Be in letters at least as large as the largest size of any text communication.

For pure audio, the disclaimer must be read "[a]t the beginning and end of the media in a clearly spoken manner."

Free Speech

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From Retraction Watch (Pascual Chiago); you can see the published paper here (perma.cc version in case the original gets taken down). An excerpt:

I had grown weary of the constant stream and abuse of spam invitations to submit manuscripts to journals and to attend fake conferences on the other side of the world, a trend extensively studied in academia. The last straw: a solicitation from the Clinical Journal of Obstetrics and Gynecology, well outside my work in mathematics education.

Accepting the challenge, I decided to submit a deliberately nonsensical, AI-generated manuscript in response to observe how the individuals behind these supposed journals operate.

In October 2025, I wrote to someone named Henry Jackson, who had sent the article invitation in August (despite the fact that no such person is listed on the journal's website). I sent a manuscript generated entirely by ChatGPT to test how far a publication created with zero genuine effort could go and whether there was any filtering mechanism in place to prevent a meaningless article from being published.

I proposed the following title in my reply: "Obstetric Paradoxes and Didactic Equations: The Impact of Mathematical Teaching on Childbirth and Beyond." The abstract read:

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1/31/2006: Justice Samuel Alito takes oath.

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Currently being briefed before the U.S. Supreme Court on the merits is a test of the federal statutory ban, with severe felony penalties, for any marijuana "user" who possess a firearm or even a single round of ammunition. 18 U.S.C. sec. 922(g)(3). The Supreme Court's docket page is here. And here is the amicus brief I coauthored on behalf of the National Rifle Association, FPC Action Foundation, and Independence Institute (where I work). The lead author was NRA's litigation director Joseph Greenlee. As always in a Greenlee brief, the originalist legal history is complete and impeccable.

Below is the Summary of Argument.

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

DATE: May 28-29, 2026

LOCATION: Durham, NC

ABSTRACTS DUE: February 20, 2026

The Duke Center for Firearms Law and the University of Wyoming Firearms Research Center invite applications to participate in the seventh annual Firearms Law Works-in-Progress Conference. The conference will be held at Duke Law School in Durham, NC, on May 28 and 29, 2026. We ask all those interested in presenting a paper at the conference to submit an abstract by Friday, February 20, 2026.

At the Firearms WIP Conference, scholars and practitioners present and discuss works-in-progress related to firearms law and policy broadly defined, including Second Amendment history and doctrine, federal and state gun regulation, and the intersection between firearms law and other areas of law. The Firearms WIP Conference is the only legal works-in-progress event specifically focused on firearms law and policy. Summaries of past conferences, including paper titles and attendees, are available here: 2019, 2020, 2021, 2022, 2023, 2024, and 2025.

Conference sessions are lively discussions among authors, discussants, and participants. Each accepted paper is assigned to a panel of three to four scholars with a moderator who will summarize the papers and then lead a discussion. Sessions run from Thursday afternoon through Friday afternoon. There will be a casual dinner and social event Thursday evening following the afternoon session. All conference participants are expected to read the papers in advance and to attend the entire conference.

We accept papers on a wide array of topics related to firearms, including from scholars who are new to the field and interested in exploring the interaction between firearms law and other disciplines. Although participation at the conference is by invitation only, we welcome paper proposals from scholars and practitioners all over the world. Please feel free to share this call for submissions widely.

Submission Details

Titles and abstracts of papers should be submitted electronically to firearmslaw@law.duke.edu no later than February 20, 2026. Abstracts should be no longer than one page, and should be submitted as a PDF file saved under the file name "[last name, first name] – [paper title]." Please use the subject line "WIP Paper Submission" in your email.
Authors will be informed whether their paper has been accepted no later than March 13, 2025.
Workshop versions of accepted papers will be due in mid-May, so that they can be circulated to moderators and other conference participants in advance of the conference.

We expect that participants' home institutions will cover travel expenses to the extent possible. However, the Duke CFL and the Wyoming FRC are able to cover some costs of lodging and travel expenses for authors who would not otherwise be able to attend. This support is intended to encourage submissions from junior faculty, especially those who are new to the field.

There's been some debate recently about whether laws banning carrying weapons at political protests and demonstrations (either by the protests and demonstrators or others) are consistent with the Second Amendment. I thought I'd pass along what federal appellate judges have said about this recently.

[1.] From the Fourth Circuit just ten days ago in Kipke v. Moore, in a majority opinion by Judge Roger Gregory, joined by Chief Judge Albert Diaz:

Under Maryland law, a "person may not have a firearm in the person's possession or on or about the person at a demonstration in a public place or in a vehicle that is within 1,000 feet of a demonstration in a public place after: (i) the person has been advised by a law enforcement officer that a demonstration is occurring at the public place; and (ii) the person has been ordered by the law enforcement officer to leave the area of the demonstration until the person disposes of the firearm." … [W]e hold that Maryland's prohibition on carrying guns near public demonstrations is consistent with our national historical tradition of promoting peaceful assemblies, particularly given the interaction between the rights the First and Second Amendments preserve.

To start, the First Amendment protects "the right of the people peaceably to assemble." By including the "peaceably" caveat, the Founders made clear that not all assemblies are lawful, and that the government may constitutionally disperse assemblies that threaten the public peace. As the Supreme Court explained, "violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of 'advocacy.'" So, we must read the right to bear arms in conjunction with the First Amendment's protection of the right to peaceably assemble. Though the right to bear arms surely is "not a second-class right," neither are the rights to free speech and free assembly.

Second, our history, both before and after the ratification of the Second Amendment, demonstrates a long-standing tradition of government regulating permissible assembles, including regulating arms at public assemblies. Beginning with the reign of King Edward IV in the fifteenth century, and subject to only minor alterations, "[t]he riotous assembling of twelve persons, or more, and not dispersing upon proclamation," was a criminal offense under English law up until the Revolution. As Blackstone concluded, "our ancient law … seems pretty well to have guarded against any violent breach of the public peace; especially as any riotous assembly on a public or general account …." The American colonies built on this tradition, enacting unlawful assembly statutes that ordered dispersal of assemblies, particularly where individuals were armed with weapons.

Guns Free Speech

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From Alaska Court of Appeals Judge Timothy Terrell's concurrence Wednesday in Ivyories v. State:

I write separately to set out my view that the Second Amendment does not permit persons convicted of nonviolent felonies to be deprived of their gun rights after they have served their sentence and any post-release supervision period….

A majority of federal circuit courts have continued to rely on the language from the United States Supreme Court in Heller and succeeding cases and have concluded that statutes prohibiting felons from possessing firearms do not violate the Second Amendment. But the Third Circuit has rejected this view and concluded that persons convicted of nonviolent felonies should not necessarily permanently lose their gun rights. Other circuits have leaned toward that approach or left open the issue of whether some felons (particularly nonviolent felons) may have a viable as-applied challenge to felon-in-possession bans.

I agree with the Third Circuit and write separately to add my voice to the list of judges and courts who have concluded that felon-in-possession bans are unconstitutional as applied to those persons convicted of nonviolent felonies. I recognize that, in Alaska, this issue is currently governed by the Alaska Supreme Court's decision in Farmer v. State. Accordingly, I will not analyze the underlying legal issues in detail. However, cognizant of the possibility that the Alaska Supreme Court may choose to revisit its holding in Farmer, I note below the cases pertinent to the key issues and lay out other jurists' observations that are helpful in thinking about the scope of the Second Amendment.

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A short excerpt from Tuesday's long decision by Mississippi Court of Appeals Judge Anthony Lawrence in Price v. Hinds County School Dist.:

Toby Price, a licensed educator and assistant principal, read to the Gary Road Elementary School second-grade class on "Read Across America Day." Since the educator who was scheduled to read to the class did not appear on a Zoom session, Price—at the last minute—stepped in to read and selected a book entitled "I Need a New Butt!" from his personal collection. The picture book was intended to be humorous and depicted a child searching for a "new butt." As such, the book contained references to and illustrations of "butts," "butt cracks," and "farts." {The child imagines a litany of possibilities for his "new butt," such as "a butt that's armor-plated[,]" "a bumper butt made of chrome[,]" "[a] rocket butt[,]" an "arty-farty butt[,]" and "[a] robo-butt[.]" The book concludes with the child finding his father bending over to repair a sink only to discover his father's butt also had a crack in it.}

Following the reading, a student began repeating the word "butt" incessantly. Price was placed on administrative leave that day and fired two days later.

The court concluded that the firing decision "was arbitrary, capricious, and lacked substantial evidence," and was thus invalid under state law:

The Board's decision was detailed in its reasoning as follows: (1) the book at issue "contained pictures of child and adult nudity and inappropriate activities"; (2) Price previously "acknowledged the problematic nature" of such books; (3) the book caused a "negative, immediate impact"; (4) Price violated the Mississippi Code of Ethics; and (5) Price was not a credible witness….

This Court notes that "[t]he superintendent of a school district may dismiss a licensed school employee for good cause." However, "in a hearing concerning a dismissal, the burden is on the superintendent to show that a principal or teacher has been dismissed for good cause." …

Free Speech Public schools

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Earlier today, Lawfare published my article "Minnesota's Compelling 10th Amendment Case Against Trump's ICE Surge." Here is an excerpt:

The federal government's brutal and often illegal use of Immigration and Customs Enforcement (ICE) personnel and other federal agents in Minnesota has generated extensive litigation. On Jan. 12, one particularly crucial case was filed by the state of Minnesota and the cities of Minneapolis and St. Paul, arguing that the federal Metro Surge operation—deploying thousands of ICE and other federal agents to the Twin Cities—violates the 10th Amendment. That amendment states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In a series of decisions supported primarily by conservative justices, such as Printz v. United States (1997) (written by conservative icon Justice Antonin Scalia), the Supreme Court has held that the federal government cannot "commandeer" state and local officials to do the federal government's bidding, or to help enforce federal laws.

Control over state and local government personnel is one of the powers reserved to the states by the 10th Amendment. In addition, as legal scholar Michael Rappaport has shown, the original meaning of the Constitution indicates that such control is a basic element of the sovereignty inherent in being a state in the first place….

Part of the purpose of the federal "surge" is to coerce Minnesota jurisdictions into giving up their sanctuary policies and using their resources to assist federal deportation efforts. As federal District Judge Katherine Menendez noted in a hearing in the case on Jan. 26, Trump administration officials have repeatedly indicated that this is one of their objectives. Attorney General Pam Bondi suggested as much in a Jan. 24 letter to Minnesota Gov. Tim Walz. A Jan. 16 White House statement explicitly indicates that Minnesota's "sanctuary defiance" is "responsibl[e] for the enhanced enforcement operations in Minnesota." A recent statement by Trump "border czar" Tom Homan indicates that the administration will not withdraw immigration enforcement officers from Minnesota unless state and local governments curb sanctuary policies and extend "cooperation" to federal immigration enforcers….

The Minnesota case is not exactly analogous to previous anti-commandeering rulings by federal courts. But that is in part because it represents an even more blatant violation of the 10th Amendment. In Printz and other cases, such as New York v. United States (1992) and Murphy v. NCAA, the Supreme Court struck down congressional legislation requiring states to help enforce various types of federal laws, or to enact legislation of their own. In a series of decisions during the first Trump administration, and continuing in the second, numerous lower federal courts ruled that the president cannot order states to aid in immigration enforcement actions, and cannot withhold federal funds from sanctuary jurisdictions in cases where doing so would be "coercive" or Congress had not authorized immigration-related conditions on recipients.

The administration's current actions are more egregious than those struck down in previous anti-commandeering rulings. Here, there is no congressional authorization for federal coercion of states; the president is acting on his own. And the direct use of force is even more blatantly coercive than illegally withholding federal grants. If the federal government cannot coerce states by enacting commandeering laws and imposing grant conditions, surely it cannot do so at the literal point of a gun….

If allowed to stand by the courts, the federal action in Minnesota would set an extremely dangerous precedent. It could easily be used against a variety of state policies, including those of conservative "gun sanctuaries"—such as Montana and Missouri—which restrict state and local assistance efforts to enforce federal gun control laws. A future Democratic administration could send thousands of armed agents to harass gun owners and disrupt state and local government operations until gun sanctuary jurisdictions drop their restrictions.

Indeed, the Minnesota operation has already threatened gun rights traditionally prized by conservatives. Administration officials have defended the killing of Alex Pretti on the grounds that he was carrying a gun at the time—even though he had a legal permit to do so, never drew the weapon, and federal agents took it from him before they shot him.

The final item in an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Bradley A. Smith, the Chairman and Founder of the Institute for Free Speech and the former Chairman of the Federal Election Commission:

Americans hate the combination of money and politics. Of that there can be no doubt. Every public opinion poll taken on the topic reflects that reality, as do the daily conversations I have about politics.

Substantial majorities of Americans see political contributions and spending as a source of corruption, believing that officeholders routinely sell votes or other official action in exchange for campaign contributions. It matters naught that there is near-unanimous agreement among political scientists who have studied the issue that campaign contributions do little or nothing to affect how a politician votes once in office.

Further, when wealthy Americans deploy their financial assets to argue for their preferred policies and candidates, it strikes many Americans as an affront to political equality. Few people can comfortably afford to spend $1,000 in an election campaign, let alone six, seven, or eight figures. Why should being rich give someone more political influence? That a big-spending political donor might empower millions of Americans who share the donor's views but otherwise would not be heard, is rarely considered.

Free Speech Buckley v. Valeo at 50

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Donald Trump has often threatened to invoke the Insurrection Act as a tool for using the military against his domestic opponents. Many observers believe this became more likely after the Supreme Court ruled against his efforts to federalize state National Guard units and use them for domestic law enforcement under a different statute.

The conventional wisdom on the Insurrection Act is that the president is entitled to broad judicial deference if he invokes it. In an important new article, Prof. Josh Braver (University of Wisconsin) argues that the conventional wisdom is wrong. Here is the abstract:

This article argues that courts do not owe substantial deference when the President seeks to deploy the military domestically under three of the Insurrection Act's four trigger provisions. The exception is Section 252, which authorizes deployment "[w]henever the President considers" that has become "impracticable to enforce the laws . . . by the ordinary course of judicial proceedings." This Article defends that claim through analysis of the Act's text, statutory history, and legislative history.

The core argument turns on a single word of the Insurrection Act: "considers." When, and only when, a trigger is keyed to what the President "considers," courts owe deference. Two negative-implication arguments clarify and strengthen that inference. First, Congress used "considers" in Section 252's judicial-proceedings trigger, but withheld comparable language from every other trigger, signaling that Section 252 is the sole grant of trigger deference. The statutory and legislative history confirm that this was no accident: Section 252's "considers" traces to an 1861 amendment that added discretionary language to the judicial-proceedings trigger. This language was widely understood as necessary to resolve controversy over whether the President could deploy force against the seceding States at the civil war's outset.

Second, where Congress uses "considers" elsewhere in the Act, it does so to confer deference over the choice and scale of forces ("means deference"), not over whether the trigger is satisfied. Using 'considers' for means while omitting it from triggers underscores that Sections 251 and 253 withhold trigger deference by design.

The withholding of trigger deference from Section 253 in particular has a structural logic: Section 253 is the only trigger provision that lacks any comparable ex ante check by another institution, making judicial scrutiny especially necessary ex post. And because Section 253(2) is the Act's broadest and most abuse-prone trigger, that judicial check is especially crucial.

While Josh concludes that more deference is due under Section 252 than the other parts of the statute, even Section 252 deference has important limitations:

Two points should reassure. First, Section 252 presupposes an actual judicial proceeding: an injunction, a warrant, an order, or some comparable process to be enforced. And mere resistance is not enough; it must also be "impracticable to enforce the laws" through that process. The only exception is a genuinely collapsed judiciary—courts shuttered, process unavailable— an extraordinary condition that cannot be conjured by rhetoric alone.

Second, "substantial deference" is not abdication, especially given the trigger's demanding terms. In 2025, two district judges confronting the Chicago and Portland National Guard deployments under a neighboring statute with analogous language applied a deferential framework yet still ruled against the Administration. The Ninth Circuit initially reversed in the Portland litigation on the ground that the district court's analysis was not deferential enough; but it later granted rehearing en banc, and it might well have applied deference and still struck down the deployment. The Supreme Court intervened first, effectively mooting the dispute before the Ninth Circuit could rule.

In a recent Dispatch article (non-paywalled version here), I made a more general case that courts should not defer to executive invocations of emergency powers. Rather, the government should have to prove that the emergency that supposedly justifies their use actually exists. This is consistent with Josh's argument that, under the Insurrection Act, there is no deference on "triggers" for the use of the act, though - if the "trigger" is present - there could be some deference with regard to the issue of whether the use of the military is a necessary response. See also Part V of my new article, "Immigration is Not Invasion," which argues against deferring to executive claims that an invasion has occurred, thereby justifying the use of various sweeping emergency powers.

Josh Braver is also my coauthor on "The Constitutional Case Against Exclusionary Zoning," Texas Law Review (2024). We have very different political ideologies and views on legal theory, but nonetheless agree on a great many things!

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