The Volokh Conspiracy Archive

FCC Chair Brendan Carr has taken lots of actions to designed to punish broadcasters that have behaved inappropriately by his lights: he has opened an investigation into a broadcaster reporting on the location of Immigration and Customs Enforcement actions; responded to Comcast, which allegedly "impl[ied] that [Kilmar] Abrego Garcia was merely a law abiding U.S. citizen" and ignored facts about Garcia, by suggesting that Comcast had engaged in news distortion; suggested narrowing the category of bona fide news programs that are exempt from the equal time requirement; suggested that the splicing together of two different portions of Trump's January 6, 2021 speech at the Ellipse may constitute news distortion and/or a broadcast hoax; and opened other news distortion investigations. And most famously, he threatened broadcasters who carry Jimmy Kimmel's show. But his post yesterday responding to a Trump post is notable for its brazenness.

The Fog of War and War Reporting

On Friday the Wall Street Journal reported that, according to U.S. officials, an Iranian missile struck and damaged five Air Force refueling planes that were on the ground at an airbase in Saudi Arabia. Yesterday Trump claimed on Truth Social that the Wall Street Journal's reporting was inaccurate, as "Four of the five [planes] had virtually no damage" and "One had slightly more damage." And then in language that somehow no longer seems shocking, he said that the reporters involved "are truly sick and demented people."

Less than three hours later, Carr posted Trump's statement on Twitter/X and said in response:

Broadcasters that are running hoaxes and news distortions - also known as the fake news - have a chance now to correct course before their license renewals come up. The law is clear. Broadcasters must operate in the public interest, and they will lose their licenses if they do not.

Note that the factual differences between the WSJ and Trump are fairly small (all agree that the planes were hit) and that the WSJ's reporting relied on U.S. officials. More importantly, it is difficult for anyone (soldiers, journalists, and Presidents) to determine the facts in any war. So if a journalist cannot safely publish unless he/she is certain that every significant fact is absolutely correct, there will be precious little war reporting. I always assumed that decisionmakers wouldn't try to so restrict war reporting, but Trump and Carr indicate otherwise.

Newspapers, Broadcasters, and Threats

As to Carr's invocation of news distortions and broadcast hoaxes: As I discuss in a forthcoming article I just posted (and in less detail about news distortion in this post), it would be an unprecedented extension of the news distortion policy and the broadcast hoax rule to apply either of them to mistaken war reporting. With the exception of a couple of bursts of indecency regulation, the FCC narrowly interpreted its public interest authority from the Reagan Administration through the first Trump Administration and the Biden Administration, but Carr has rejected that longstanding consensus.

Carr's post illustrates the vast difference between the Supreme Court's treatment of broadcasting and all other media. Trump focused only on newspapers, but the First Amendment would prohibit government action against them for their reporting. Carr pivoted to broadcasters, who have much less protection under Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation.

That's not to say that those cases would protect Carr's threats. Red Lion applies to speech that the government deems valuable, and Pacifica focused on indecency, so there is a reasonable argument that neither would give the government any greater ability to publish false broadcast speech than false speech on any other medium. And I think the current Court would probably overrule both cases if the issue were squarely presented (flowing from the FCC's longstanding restraint, the Court hasn't had occasion to reconsider either case).

When the Reagan FCC repealed the Fairness Doctrine, it articulated its preferred First Amendment approach, stating:

We believe that the role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists. The First Amendment was adopted to protect the people not from journalists, but from government. It gives the people the right to receive ideas that are unfettered by government interference. We fail to see how that right changes when individuals choose to receive ideas from the electronic media instead of the print media. There is no doubt that the electronic media is powerful and that broadcasters can abuse their freedom of speech. But the framers of the Constitution believed that the potential for abuse of private freedoms posed far less a threat to democracy than the potential for abuse by a government given the power to control the press. We concur. We therefore believe that full First Amendment protections against content regulation should apply equally to the electronic and the printed press.

Carr's threats make that language seem quaint.

In some ways, Carr has done us all a service by being clear about his desire to cow broadcasters. To quote Justice Scalia from a different context, issues frequently "come before the Court clad, so to speak, in sheep's clothing…. But this wolf comes as a wolf."

This new group is run by my old friend and experienced appellate lawyer Erik Jaffe (who's also my colleague at Schaerr Jaffe LLP, where I'm a part-part-part-time Academic Affiliate); Leonard A. Gail of Massey & Gail LLP; and investor and entrepreneur Mark Koulogeorge. I'm happy to be on its Legal Advisory Board, together with Robert H. Bork, Jr.; though that doesn't mean that I'll agree with every position it takes, I'm delighted to be connected with it. Here's the group's summary of its mission:

We deploy a disciplined set of legal methodologies to challenge executive, legislative, and judicial decisions that prioritize desired outcomes over fidelity to the Constitution and consistent rule-of-law process. These methods include textualism and originalism—anchored in the original public meaning of the Constitution's language as understood, where necessary, in light of history, tradition, and the broader constitutional structure established by such text.

Our approach aims to be scrupulously neutral and to resonate with jurists across the ideological spectrum. These methodologies carry no inherent political bias when faithfully applied, and they tend to produce a stabilizing effect on legal interpretation—applying the same principles regardless of which parties control the political branches.

Its first filing is an amicus brief in the birthright citizenship case; the Introduction:

3/15/1933: Justice Ruth Bader Ginsburg's birthday.

For more on the opinion, see this post.

From Chief Judge James Boasberg's opinion Friday in In re Grand Jury Subpoenas, Bd. of Governors of the Federal Reserve System v. U.S.:

"Jerome 'Too Late' Powell has done it again!!! He is TOO LATE, and actually, TOO ANGRY, TOO STUPID, & TOO POLITICAL, to have the job of Fed Chair. He is costing our Country TRILLIONS OF DOLLARS …. Put another way, 'Too Late' is a TOTAL LOSER, and our Country is paying the price!" That [Truth Social post] is one of at least 100 statements that the President or his deputies have made attacking the Chair of the Federal Reserve and pressuring him to lower interest rates. So is this: "'Too Late' Jerome Powell is costing our Country Hundreds of Billions of Dollars. He is truly one of the dumbest, and most destructive, people in Government …. TOO LATE's an American Disgrace!"

Yet the President has been unable to push rates lower through social-media posts. He has thus hinted at other options: "I want to get him out …." Several months ago, he mused that if the Fed does not cut rates, "I may have to force something." Appointed officials and the White House Press Secretary have taken up the call. See … Federal Housing Finance Agency Director William Pulte calling on Congress to investigate Powell …; … White House Press Secretary announcing that "the administration, led by the president, is looking into" Fed's renovations ….

Perhaps it comes as no surprise, then, that the D.C. U.S. Attorney's Office has recently opened a criminal investigation into Powell. It has served two subpoenas on the Federal Reserve Board of Governors, seeking records about recent renovations of the Board's buildings and testimony that Powell delivered to Congress that briefly discussed those renovations. The Board has now responded with a Motion to Quash, contending that the subpoenas are merely part of the gameplan to pressure Powell to bend to the President's wishes or to get rid of him.

The case thus asks: Did prosecutors issue those subpoenas for a proper purpose? The Court finds that they did not. There is abundant evidence that the subpoenas' dominant (if not sole) purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed Chair who will.

On the other side of the scale, the Government has offered no evidence whatsoever that Powell committed any crime other than displeasing the President. The Court must thus conclude that the asserted justifications for these subpoenas are mere pretexts. It will therefore grant the Board's Motion to Quash. It will also grant the Board's Motion to Partially Unseal the Motion to Quash, related briefing, and this Opinion….

From Whiting v. City of Athens, decided yesterday by Sixth Circuit Judge John Bush, joined by Judges Jane Stranch and Eric Murphy:

These consolidated appeals concern several lawsuits filed over an incident at the annual fireworks show hosted by the City of Athens, Tennessee, in 2022, and the subsequent fallout. By separate opinion issued this date, we affirm the district court in all respects.

This opinion addresses the misconduct of Glenn Whiting's lawyers, Van Irion and Russ Egli, in their briefing before this court and the sanctions we impose for it. That briefing repeatedly misrepresented the record, cited non-existent cases, and cited cases for propositions of law that they did not even discuss, much less support….

[W]e found over two dozen fake citations and misrepresentations of fact in Whiting's briefs, which we list in an appendix to this opinion. {This is a conservative estimate. We call something a "fake citation" or "misrepresentation of fact" only when it is clearly so. We do not include typos or sloppy citations. "As those mistakes could be attributed to simple sloppiness in drafting, as opposed to a failure to comply with the basic obligations of legal counsel, they are not the subject of this" opinion. If we included typos and other errors that are arguably, but not clearly, a misrepresentation or fake citation, we would be looking at far more misstatements of fact and law.}

Upon discovering these problems, we ordered Irion and Egli to show cause why they should not be sanctioned. The order instructed them to (1) explain why they should not be sanctioned for citing fake cases, (2) provide a copy from Westlaw or LexisNexis of all the cases and authorities cited in all of the briefs filed across the three appeals, (3) highlight any material that they quoted from those cases, (4) tell us who wrote the briefs in each case, (5) tell us whether the briefs were ghostwritten in whole or in part, (6) tell us whether they used generative AI to write the briefs, and (7) explain how they cite-checked the briefs.

Irion and Egli did not respond to these directives. Instead, they said the show cause order was "void on its face for failing to include a signature of an Article III judge," was "motivated by harassment of the Respondent attorneys," and "reflect[ed] illegal ex-parte [sic] communications within this Court." …

From Judge Robert Hinkle's Injunction Not to File Emails yesterday in Elephant Shoe, LLC v. Cook (N.D. Fla.):

Some of the defendants have made a practice of copying me and the magistrate judge on emails addressed to others. Local Rule 7.1(M) prohibits the practice. I have read none of the emails; they have been intercepted by my staff and deleted. I am told that their tone is completely inappropriate, but the practice would be totally unacceptable, even if the tone was professional. This order constitutes an injunction requiring the defendants to stop. A violation of this order may be punished as contempt of court with sanctions including fines or imprisonment. If the defendants continue the practice, it will not end well for them. They should govern themselves accordingly.

From Friday's order in Reyes v. Turin (N.D. Ill.).

A bit of legalese I'd never heard of before, doubtless because I don't practice criminal law: It apparently stands for "superseding indictment," though occasionally it stands for "second superseding indictment."

3/14/1932: Justice Benjamin Cardozo takes oath.

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

Friends, a while back IJ researchers went hard trying to find data on whether food sold by home-based vendors is safe. And looking at seven states with relatively liberal laws, we found not a single verifiable instance of a foodborne illness that could be traced to cottage food. Anyhoo, that's all to say it's super great that this week Indiana passed a food freedom bill that will expand opportunities for home-based entrepreneurs and allow more delicious eats in the Hoosier state. Click here to learn more.

New on the Short Circuit podcast: Sam MacRoberts of the Kansas Justice Institute inspects the Fourth Amendment's inspection exception (and exceptions to the exception)—and takes some exceptions.

In naming a new police chief, Bergenfield, N.J. passes over its white deputy chief in favor of an Arab-American captain. Miffed deputy sues for racial discrimination under state and federal law. Third Circuit (per Judge Bove): We predict N.J. Supreme Court would follow U.S. Supreme Court in disavowing a rule making it harder for plaintiffs in the supposed majority group to bring discrimination claims. And there's plenty of evidence of intentional discrimination to send both state and federal claims to trial. Concurrence (also Judge Bove): I personally think it would also be unconstitutional if N.J. didn't abandon its rule.
If you've ever wanted to know how to collect a judgment in West Virginia—or what the differences are between a "writ of fieri facias" and a "suggestion"—this Fourth Circuit opinion is for you. You will also learn that you can't sue your bank for following a court order to pay your creditors. Read More

I think most people have missed the point of Judge VanDyke's "swinging dicks" dissental. Of course he used vulgar and coarse language. (I for one would not use this approach in my writing.) That was VanDyke's point. He was trying to draw a double standard. Thirty members of his court expressed their outrage at VanDyke writing about "swinging dicks," but not one of them was willing to review a case that involved actual "swinging dicks." How can it be that describing "swinging dicks" in a women's spa is a bigger problem than the state permitting actual "swinging dicks" in a women's spa? Judge VanDyke proves the old saw is true: "The pen is mightier than the sword." Or, as Sean Connery would say on SNL Celebrity Jeopardy!, "The penis mightier."

This is a common feature of contemporary debate: it is worse to use problematic language to describe something that to acknowledge how that thing is actually problematic.

First, the most salient example concerns abortion. For years, people were appalled when pro life advocates would display gruesome photographs and videos of abortions being performed. To this day, there is outrage at the detailed statement of facts in Gonzales v. Carhart about how partial birth abortions function. Justice Kennedy's majority opinion felt compelled to explain why he was using such graphic language: "The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in Stenberg, to discuss abortion procedures in some detail." Here is an excerpt:

A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. The steps taken to cause dilation differ by physician and gestational age of the fetus. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less.

After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed.

Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit.

The real problem was that those abortions were actually being performed, not that judges accurately described them.

Can you imagine if Judge VanDyke included in his opinion a photograph from the record of a "swinging dick" in a women's spa? There would be outrage that VanDyke included the graphic photo, but silence about the fact that the photo exists. (I doubt any such photo exists in the record, but in a normal case, discovery would generally require showing what it is the plaintiff seeks to do, even in a redacted form.) How many members of the Ninth Circuit would take their young daughter to the Olympus Spa?

Second, there is almost a visceral reaction to "misgendering" a transgender person--even by describing the person's anatomy. There is even greater opposition to describing what happens at "Drag Races" and other "Drag Queen" story times where children are present. But descriptions of these actions are an effective way to demonstrate why governments seek to regulate them. Consider these findings of fact from Spectrum WT v. Wendler, a case from NDTX about a drag event at a public university where children could attend. Judge Matt Kacsmaryk spares no details:

The 2023 on-campus show "was to be emceed" by a man named Michael Arredondo, whose drag performer name is "Myss Myka." Spectrum WT v. Wendler, 151 F.4th 714, 719 (5th Cir. 2025) (citation modified), reh'g en banc granted, opinion vacated, 157 F.4th 678 (5th Cir. 2025). Michael "had performed in a highly sexual drag show" in February 2023, about a month before Spectrum's show would have taken place in Legacy Hall. Id. He also performed in the off-campus March 2023 show—and would have performed in Legacy Hall, had the show taken place there. Myss Myka's performances routinely veer into salacious, sexualized conduct. For instance, in a five-minute span during a February 2023 performance, he made the sign of the cross before gradually stripping off his angel costume, twerking, and graphically simulating male masturbation onto an audience member. He also squeezed his prosthetic breasts together suggestively and placed a spectator's hand on them. He ended his routine by grinding his near-bare crotch on another audience member, an act sometimes described as "frottage." Spectrum "d[id] not dispute" that Michael engaged in this behavior during its appeal of this Court's denial of a preliminary injunction. Spectrum WT, 151 F.4th at 719 n.2.

Spectrum expressly invited Myss Myka to host its 2023 and 2024 drag shows. Children—of any age—would have been present at these shows. Spectrum's only requirement was that minor children be accompanied by a parent or guardian. But Spectrum had no way to ascertain whether a child was accompanied by a parent or guardian, as opposed to any other adult. Nor could Spectrum have known whether participating PUP students were minors: PUP participants receive the same student ID as full-time West Texas A&M students, and those IDs do not list students' ages. Even professors do not know which of their students are PUP students.

Don't skim it. Read it. Elites will be appalled these words appear in a judicial decision, but not that this behavior actually exists in the presence of children. How many members of the Ninth Circuit would take their young children to this drag show?

The court also included photos. I include them after the jump, because they are not safe for work, but apparently were safe for children:

From In re Obeginski, decided by the Texas Court of Appeals yesterday (Chief Justice Scott Golemon, joined by Justices Jay Wright and Kent Chambers):

In an order imposing sanctions on Scott Mitchell Obeginski for citing fictional authority in Trial Court Cause Number 24-11-18234, the trial court ordered Obeginski, when making "any filing of any plea, pleading, motion, brief, or similar" in any capacity to "include with each filing with any and all Court(s) or Clerk(s) as attachments a copy of any and all legal authorities cited in the filing highlighting the portion of the legal authority attached which supports the proposition for which he cites the legal authority."

In a mandamus petition, Obeginski contends the trial court's directive is "an act far exceeding its jurisdiction" and argues that the trial court abused its discretion by failing to exercise its ministerial duty to vacate the order after "the loss of plenary power." Obeginski argues mandamus relief is appropriate to alleviate harm from "an unconstitutional restriction on court access." {The Order made additional rulings and imposed additional sanctions, but only the order to provide copies of cited case authority is at issue in this mandamus proceeding.} …

The trial court had personal jurisdiction over Obeginski and the inherent power to sanction him for his improper conduct in [that court]. Thus, the trial court possessed the authority to sanction Obeginski for citing fictitious legal authority in his filings in [that case]. The larger question is whether the trial court possessed the authority to require Obeginski to attach a copy of the legal authorities cited in a filing Obeginski makes with any court, not just the [trial court that issued the order].

I am pleased to share the first signed opinion from Justice Kyle Hawkins, the newest member of the Texas Supreme Court. San Antonio v. Realme is like a fun statutory interpretation case involving, of all things, a Turkey Trot:

Nadine Realme tripped and suffered an injury in a San Antonio park while participating in a community Thanksgiving "fun run" known as a turkey trot. She sued the City, claiming its negligent maintenance of the park caused her injury. But according to Texas's Recreational Use Statute, TEX. CIV. PRAC. & REM. CODE § 75.002(f), the City is not liable for ordinary negligence when a person "engages in recreation" on government property. Is a holiday-themed community footrace "recreation"? We hold that it is, and we reverse the contrary decision below.

There is a lot of analysis about when the canons of construction apply, and when they do not. I find that one of the biggest mistakes that students make is jumping to the canons too quickly before doing the hard work of carefully reading the statute. And if you read to page 7 there is a discussion of the different types of vehicles, but nothing about whether those vehicles can be in a park.

From Judge Glen Davidson's opinion Wednesday in Stokes v. Boyce (N.D. Miss.):

On September 10, 2025, well-known podcaster Charlie Kirk was shot and killed during an event at a university in Utah. That same evening, the Plaintiff, who worked at the University of Mississippi as the Executive Assistant to the Vice Chancellor for Development, reposted on her personal social media account a statement regarding Kirk.

For decades, yt supremacist and reimagined Klan members like Kirk have wreaked havoc on our communities, condemning children and the populace at large to mass death for the sake of keeping their automatic guns. They have willingly advocated to condemn children and adult survivors of SA to forced pregnancy and childbirth. They have smiled while stating the reasons people who can birth children shouldn't be allowed life-saving medical care when miscarrying. They have incited and clapped for the brutalizing of Black and Brown bodies. So no, I have no prayers to offer Kirk or respectable statements against violence.

The statement garnered a great deal of attention and was widely commented upon and negatively received. The Plaintiff removed the statement from her account four and one-half hours later and posted an apology….

Stokes was fired, and the court concluded the firing likely didn't violate the First Amendment:

From Smith v. InformData, LLC, decided Wednesday by Judge Rossie Alston (E.D. Va.):

Plaintiff Harry Smith filed suit for alleged violations of the Fair Credit Reporting Act ("FCRA") arising out of an "employment purposed consumer report published by Defendant to non-party Turn Technologies Inc…. who then resold the same to Plaintiff's potential employer, inclusive of criminal records that had been pardoned and expunged years earlier." …

In February of 2020, Plaintiff appeared before the Board of Pardons (for an unidentified jurisdiction, but presumably Delaware) and sought a pardon for convictions that were more than a decade old. Thereafter, the Board of Pardons recommended that Plaintiff be pardoned. On May 26, 2020, then-Governor of Delaware John Carney granted Plaintiff a pardon for all of his convictions.

In July 2020, Plaintiff applied for expungement of his convictions. On March 3, 2021, Plaintiffs petition for expungement was granted pursuant to 11 Del. Code § 4372(e)(1), which provides that, within 60 days of expungement, all criminal records must "be removed from the Court's files." The expungement order further stated that Plaintiff need not disclose that he was arrested, charged, or convicted of the expunged convictions, for any reason except as provided for in 11 Del. Code § 4376(a). That statute provides that it is "unlawful for any person having or acquiring access to an expunged court or law-enforcement agency record to open or review it or to disclose to another person any information from it without an order from the court which ordered the record expungement." …

The court rejected plaintiff's Fair Credit Reporting Act claim:

The Volokh Conspiracy

Neutral Principles ("Process, Not Outcome"): A New Advocacy Organization

Today in Supreme Court History: March 15, 1933

Open Thread

From Chief Judge Boasberg's Opinion Quashing Grand Jury Subpoena Related to Fed Chair Jerome Powell

Judge Concludes Grand Jury Subpoena to Fed Had Improper Purpose

Lawyers Citing Nonexistent Cases Ordered to Pay Opponents' Attorney Fees, Double Costs, $15K Fine Each

"If the Defendants Continue the Practice, It Will Not End Well for Them"

Court Allows Submarine Filings

SS Indictment

Today in Supreme Court History: March 14, 1932

Open Thread

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

The Penis Mightier

Litigant Who Cited "Fictional Authority" Ordered to Include All Cited Authorities in Future Filings in Any Court

The First Opinion From Justice Hawkins on the Supreme Court of Texas

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