The Volokh Conspiracy

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

From today's decision by Judge Loren AliKhan (D.D.C.) in Passantino v. Weissmann (for an earlier decision in the case, see here):

Plaintiff Stefan Passantino brings this action against Defendant Andrew Weissmann, alleging defamation stemming from a September 2023 social media post. In the post, Mr. Weissmann referred to Mr. Passantino—a lawyer—as someone "who coached [a witness appearing before Congress] to lie." …

In 2021, the House of Representatives established a Select Committee to investigate the January 6, 2021 attack on the U.S. Capitol. As part of its investigation, the Select Committee interviewed numerous witnesses, including Cassidy Hutchinson, a former special assistant to President Trump who had been serving under the direction of White House Chief of Staff Mark Meadows on January 6, 2021.

Mr. Passantino [a former Trump administration senior lawyer] represented Ms. Hutchinson at her first three closed-door Select Committee depositions on February 23, March 7, and May 17, 2022. In early June 2022, after the third deposition, Ms. Hutchinson fired Mr. Passantino and retained new counsel. She subsequently gave a fourth, televised deposition on June 28, which received substantial media coverage.

After her fourth deposition, Ms. Hutchinson sent a letter to the Select Committee stating that she intended to "waive [her] attorney-client privilege [with Mr. Passantino] in order to share information with the [C]ommittee that[] [was] relevant to [her] prior testimony." The Select Committee scheduled her for a fifth, closed-door deposition for September 14, 2022. According to Ms. Hutchinson, she had asked a friend to "back channel to the committee and say that there [were] a few things that [she] want[ed] to talk about." … [She also said] that she did "not [want to] let Stefan [Passantino] know that [she was] back channeling for this interview" ….

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A short excerpt from the long opinion in Barlow v. Dep't of Navy, decided Sept. 11 by Merit Systems Protection Board Administrative Judge Scott Borrowman:

On October 29, 2025, shortly after the appellant returned from [a 14-day suspension for "Failure to Enter Accurate Time & Attendance, Lack of Candor, and Disrespectful Conduct"] the suspension, Alger [the appellant's second-level supervisor] noticed a picture of a "red wolf" in the office across the hallway, and when he looked at it, the picture had the text: "After giving it careful thought, I have decided to become worse." When he turned around, he noticed "various writing" on the whiteboard that "in the past had been sterile." Alger indicated the wall was previously bare.

Alger took a picture of the wolf poster. He also took a picture of the whiteboard in the appellant's office. In the upper left corner is the following text: "get fired, get in trouble, be brave, never stop fighting!" There is what appears to be a printout with the following text: "Behold the field in which I grow my fucks. Lay thine eyes upon it and thou shalt see that it is barren."

In the middle-consuming around 70% of the surface-is written: "FAFO!" The initial F has the word "fuck" written many times—Alger counted 25—mingled with scribbles…. The A includes "around" several times. The second F has the word "find" written several times. The terminal O has the word "out" written several times. The remainder of the whiteboard included 6 photographs, some numbers of unclear meaning, and something not fully legible in the right bottom corner.

Alger had participated in the suspension proceedings and believed that the information warranted reporting a potential insider threat, so he forwarded the information to G.S., his immediate supervisor, human resources, legal, and security departments.

Free Speech

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From Judge Rudolph Contreras (D.D.C.) last week in 4chan Community Support LLC v. UK Office of Communications a/k/a Ofcom:

This case spawned from a series of interactions between Plaintiffs, two American internet companies, and Ofcom. Plaintiff 4chan "runs an Internet imageboard website" that it describes as "controversial," while Lolcow administers a website called Kiwi Farms that operates as a "discussion forum that focuses on Internet culture" and is also self-described as "controversial." According to the Complaint, neither 4chan nor Lolcow has any "presence, operations, or infrastructure outside the territorial limits of the United States." …

Although the Court does not undertake to describe all of Ofcom's regulatory powers, two are particularly relevant here. First, the Online Safety Act gave Ofcom investigatory powers. Ofcom may issue "information notices," which require recipients to give Ofcom "any information that they require for the purpose of exercising, or deciding whether to exercise, any of their online safety functions." Ofcom may also "open an investigation into whether a provider of a regulated service has failed, or is failing, to comply with" certain requirements under the act, and "the provider must co-operate fully with the investigation." These investigative powers are backed by the force of law. "A person commits an offence if the person fails to comply with a requirement of an information notice." If a person is convicted of such an offense, they may be fined.

Second, the Online Safety Act equips Ofcom with two enforcement tools: (1) provisional notices of contravention and (2) confirmation decisions. Provisional notices of contravention put a provider on notice that, in Ofcom's view, "there are reasonable grounds for believing that the provider has failed, or is failing, to comply with any enforceable requirement … that applies in relation to the service." Enforceable requirements encompass a host of duties set forth in the statute—including illegal content, children's online safety, and record-keeping requirements….

The parties give slightly different accounts of their interactions. Starting with its interactions with 4chan, Ofcom tells that it initially made a determination that 4chan was subject to the Online Safety Act because the website represented that it had "over 20 million unique visitors per month and that over 7% of 4chan's user base [was] UK users." Moreover, the website "markets [its] platform to advertisers on the basis" of that 7% of British users, "the second largest percentage behind the United States."

Politics

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From a YouGov Sept. 4-8 survey:

Thus, there's

Politics

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In the middle of the night on Sunday, October 12, 1958, fifty sticks of dynamite exploded in the entryway of an Atlanta synagogue. The blast took place at the Hebrew Benevolent Congregation, the oldest and most prominent synagogue in Atlanta. Its rabbi was an outspoken integrationist.

Parts of the temple were blown apart. Not long after, staff at the news agency United Press International received a call from someone identifying himself as "General Gordon of the Confederate Underground." "We bombed a temple in Atlanta," he said. "This is the last empty building we will bomb.… Negroes and Jews are hereby declared aliens."

The bombing was one in a series of brutal assaults on Jewish and Black institutions in the South in the wake of the Supreme Court's 1954 decision in Brown v. Board of Education. Segregationists targeted synagogues that promoted integration as well as recently integrated schools. The Atlanta bombing was the seventh attack on a Jewish religious building in the South since 1957. There had been bombings or attempted bombings in Charlotte, Gastonia, Miami, Nashville, Jacksonville, and Birmingham.

The temple bombing was a shocking act of terrorism, and the reaction to it was swift. President Dwight Eisenhower denounced the attack and called for immediate investigation. The FBI and Atlanta police linked the bombing to five men who belonged to white supremacist hate groups, including the National States' Rights Party (NSRP). The NSRP, an avowedly fascist organization founded in 1949, embraced virulent antisemitism and a fanatical resistance to integration, part of its platform of "saving America and the white race and the preservation of the pure blood of our forefathers." The organization was known for its Nazi-like uniforms of white shirts, black ties, and armbands with the emblem of a thunderbolt over a Confederate flag.

Samantha Barbas, Professor of Law and Aliber Family Chair, specializes in legal history, First Amendment, and media law. She is the author of eight books, including Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (California, 2023), which was listed as one of the New Yorker's Best Books of 2023.

Her other books include Hate Speech: The Legal and Cultural History of an American Dilemma (California, 2026), The Rise and Fall of Morris Ernst: Free Speech Renegade (Chicago, 2021), Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom (Stanford, 2017), and Laws of Image: Privacy and Publicity in America (Stanford, 2015). She is quoted regularly in national publications, and her books have been featured in The New York Times, New York Review of Books, and Wall Street Journal, among others.

Free Speech Hate Speech

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In Magistrate Judge Lara Eshkenazi's opinion Monday in Mercante v. Tarzia (E.D.N.Y.), defendant's counsel (Coleman) filed an exhibit containing "wire transfer instructions to [plaintiff's counsel's] firm's bank account":

Exhibit F purports to be redacted, and a white box with the word "REDACTED" covers the bank account information. The exhibit cover page also states that the bank account information is redacted. However, Mr. Coleman failed to adequately redact and remove the sensitive financial information, as the text is accessible by copying and pasting, or by clicking and moving the white box covering the text.

The court concluded that this didn't qualify as contempt of court (based on of its failure to comply with a protective order, "which prohibits materials marked 'confidential' from being filed on the public docket"):

While the mistake reflects some carelessness on Defense counsel's part, his initial attempt to redact the information and immediate acceptance of responsibility for his error leads this Court to conclude that Plaintiff has not carried her burden of demonstrating by clear and convincing evidence that Defense counsel was not reasonably diligent in attempting to comply with the Protective Order.

But the court granted sanctions against defense counsel, in the form of having to pay expenses for "data breach mitigation" services:

Politics

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9/21/1981: Justice Sandra Day O'Connor is confirmed by the Senate, 99-0.

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A short excerpt from Prof. Mchangama's Sept. 3 post (though the whole thing is much worth reading):

Frederick Douglass was a frequent target of vilification and smears—not to mention hostile mobs, stones and rotten eggs. His enemies—and sometimes even erstwhile allies—used press and pulpit to counter the growing influence of his oratorical genius and editorial prowess. Douglass' primary weapon consisted of words—but what to do when opponents turned this weapon against him? Was counterspeech a sufficient remedy, or should legal redress also be an option? What rules—legal or moral—should guide newspaper editors with power to shape public opinion? And as Douglass became an influential speaker, editor and publisher himself, did he practice what he preached?

Douglass the Defamed

"Nigger" and other racial epithets were routinely hurled at Douglass. But far more damaging than crude racist attacks were various allegations of sexual depravity, of lying about his life story, of being a paid anti-American agitator and of being a cowardly co-conspirator in the attack on Harper's Ferry….

To Douglass, the proper response to attacks on reputation and ideas was reciprocal counterspeech. Ideally the venue of attack would provide the target equal access to respond. When reciprocity was denied, press freedom provided a corrective mechanism. Media pluralism increased the chances that a fair-minded newspaper would give voice to those denied a right of reply elsewhere….

Two things underwrote Douglass' conviction that the law should protect the pen rather than restrain it: an extraordinary confidence in counterspeech, and a demanding conception of what press freedom required. A newspaper worthy of being called the "palladium of liberty" did not protect readers from controversy. It enabled accusations to be answered, exposed its own claims to adversarial testing and gave truth a chance to prevail over falsehood. Douglass did not merely preach that ideal. Across more than half a century of vilification, he practiced it with a record that—if not unblemished—was impressively consistent.

And, likewise, from his Sept. 11 post, which I likewise highly recommend:

Free Speech

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9/20/1968: The New York City Landmarks Preservation Commission denied a certificate of no exterior effect to the Penn Central Transportation Co. The Supreme Court found that the City of New York did not violate the Takings Clause in Penn Central Transportation Co. v. New York (1978).

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From Soliz v. Alamo Colleges Dist., decided by Judge David Ezra (W.D. Tex.) on Sept. 16:

Plaintiff Joseph Soliz, who is proceeding pro se, was at all times relevant to this case a student at St. Philip's College, an individual college within the Alamo Community Colleges District ("ACCD") system. He was enrolled in a class taught by Roy Ruiz, named as a defendant here.

On January 17, 2024, Soliz and Ruiz got into a dispute during class. Soliz was working on a lab exercise regarding electrical circuits. His digital multimeter alarmed at least once. Ruiz came over and offered to assist him, and Soliz told him that he would "get it figured out." Ruiz then explained multiple times to Soliz that he was not following directions. Soliz insisted that he was doing it his own way and asked Ruiz not to "micromanage" him. Ruiz took away his lab papers, and Soliz took them back, refusing to relinquish them. Ruiz threatened to summon campus police and instead summoned Elizabeth Leon, a St. Philip's staff member. Ms. Leon attempted to resolve the issue with Soliz, but Soliz did not cooperate and "told [her] the conversation was over."

The next morning, Ruiz sent an email to Soliz asking him not to attend class that day. The email explained that, in Ruiz's view, Soliz had been unduly combative and had misused equipment, which Ruiz believed posed a safety risk, and that Soliz had refused to follow instructions and disrupted the class. Soliz attended class anyway. Ruiz approached Soliz and said that if he refused to leave, Ruiz would call campus police. Soliz refused, and Ruiz followed through on his statement.

Free Speech Campaign Finance

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An excerpt from a longish opinion by Judge David Alan Ezra (W.D. Tex.) Monday in U.S. v. Griffin:

Defendant was indicted on four counts of Interstate Transmission of Threatening Communication in violation of 18 U.S.C. § 875(c). The counts were based on, and quoted, statements posted by Defendant on the social media platform Gab. The statements included in the Indictment are as follows:

I'm just a random nobody in the US and I can pick any synagogue I want and go postal on it and the president will be visiting the place the next week to pay respects to his real masters. Your theater kid shit will be easy to play and as soon as I get an organized group of men willing to act on it we are going after your ass zog trash. {"Zog" is an acronym for "Zionist Occupation Government."} I don't care about trump, and I wouldn't even live to see him there most likely assuming I jihaded any place, but the team would have all your moves laid out in advance and they'd be waiting. The first attack would just be the bait. And then we'd hit you again at the funeral once the more important people showed up to grift.

Zionists do not have the authority to lecture me on sexual morals or anything else. They're criminals and I am going to kill them.

If I'm NEVER getting a family or a house in shithole America what else do I have to do better than KILL my state representatives? God that sounds awesome. I want them to die so bad. Like I'm looking up what is their schedule, where are they and when so I can potentially kill them. That's how FUCKING PISSED I am about America ripping me off.

My Goal for the next 10-20 years is to get hot girl I can have kids with, 10 acres of land to live on, stable income to support my family. And if I can't get that as upper middle class white collar educated heritage US guy then I am going to attack the federal government and kill their employees or the US military. Right now – looking like terrorism is my better option. I like JD Vance meme. It's not a joke for me. We are going to fucking kill you. You are going to make this deal available to me or I am going to start building bombs.

Free Speech Anti-Semitism

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9/19/1907: Justice Lewis Powell's birthday.

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So held Elite Precision Customs L.L.C. v. BATFE, decided today by Fifth Circuit Judge Jerry Smith, joined by Kurt Engelhardt; a very short excerpt of the reasoning, but you can see the opinion for a lot more:

It is no defense of the Ban's constitutionality to theorize that it is only a minor infringement of Second Amendment rights that still "allow[s] ample access to handguns by those who are permitted to possess and purchase them under state and local laws." Mance v. Sessions (5th Cir. 2018) (rejecting a pre-Bruen challenge to the Ban)….

Even to the extent that the Ban can be circumvented by the licensee-to-licensee transfer workaround (which vests full veto power over interstate handgun sales in a group of third parties financially dependent on the government's licensing regime), the Ban invariably calls for the payment of a fee over and above the cost of a handgun. We must pause before endorsing a cost attached to the exercise of a fundamental constitutional right. To the extent that prior decisions from this court hint there is an acceptable cost that may be imposed on the basic exercise of Second Amendment rights, they are abrogated by Bruen and its progeny.

Judge Catharina Haynes dissented, stating she agreed with the district court's decision upholding the law.

David H. Thompson, Peter A. Patterson, and William V. Bergstrom (Cooper & Kirk, PLLC) and Cody J. Wisniewski (FPC Action Foundation) represent plaintiffs. Note that the Firearms Policy Coalition has in the past retained me to file some amicus briefs on their behalf, but I was not at all involved in this particular case.

Guns

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From today's decision by Judge Rebecca Brady Jennings (W.D. Ky.) in Doe v. Blanche:

"Plaintiff has not advanced any facts or circumstances that distinguish [this] case from routine discrimination cases alleging the same or similar medical conditions that plaintiff claims, nor has [Doe] indicated why the confidentiality of [Doe's] medical information cannot be maintained through a standard protective order." While the Court does not dispute that there remains stigma around this medical condition, it is clear that numerous cases of the same or similar ilk have been prosecuted without the use of a pseudonym [citing several such cases -EV].

Free Speech Right of Access

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President Trump posted today:

Is that constitutional? According to the D.C. Circuit (the federal appellate court with jurisdiction over D.C.), it's

unconstitutional for the government to exclude press outlets based on viewpoint from spaces that have been broadly opened to the press, such as the main White House press briefing room but
constitutional to do so as to spaces that aren't generally open to the press, such as interviews in the Oval Office.

Free Speech

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The Volokh Conspiracy

MSNBC Pundit's Tweet Accusing Lawyer of "Coach[ing]" Jan. 6 Hearing Witness "to Lie" Wasn't Negligent

FA with "FAFO" and FO

4chan & Kiwi Farms Can't Sue U.K. Internet Regulator in American Court

Just a 10% Gender Gap in Attitudes on Lindsay Clancy Verdict

The 1950s: The Repudiation of Hate Speech Laws

Careful with Those Redactions

Today in Supreme Court History: September 21, 1981

Open Thread

More from Jacob Mchangama on Frederick Douglass's Views on Free Speech

Today in Supreme Court History: September 20, 1968

Open Thread

When You're in a College Electrical Circuits Lab, Better Follow the Teacher's Instructions

General Threats to Kill Jews and "Zionists" Can Be Punished

Today in Supreme Court History: September 19, 1907

Open Thread

Restriction on Handgun Sales to Out-of-State Residents Violates Second Amendment

Plaintiff's Tourette's Syndrome Doesn't Justify Pseudonymity

Can President Trump Ban CNN, MS NOW, and Politico from White House?

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