Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford, and the Gary T. Schwartz Distinguished Professor of Law Emeritus and Distinguished Research Professor at UCLA School of Law. Naturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any institution. He is also the co-host of the Free Speech Unmuted podcast.
Eugene Volokh
Latest from Eugene Volokh
Impeachment Proceedings Against All Four West Virginia Supreme Court Justices
"The articles of impeachment charge Chief Justice Margaret Workman and Justices Robin Davis, Allen Loughry and Beth Walker with maladministration, corruption, incompetency, neglect of duty and certain high crimes." (The fifth Justice has already resigned.)
The "Arrest and Alleged Charges No Longer Exist -- as If It Never Happened"
From a lawyer's letter demanding that a story about a now-expunged arrest be expunged from a newspaper as well as from the government records-but the law, fortunately, does not support this argument.
To Our Lawyer Readers: Any Ideas I Can Use in a Writing Competition?
I'm trying to put on a 2L/3L short writing competition -- just a week, for a short brief based on a short problem.
N.J. Case Ordering Google to Stop Showing Picture of Plaintiff Removed to Federal Court
The same happened to the case against the Chicago Tribune, in which the judge orally ordered the Tribune to take down a post that contained the picture (though the written order failed to reflect that).
Can It Be a Crime to "Intimidate" Police Officers by Threatening to Complain About Them?
No, says the Fifth Circuit, striking down as unconstitutionally overbroad a Louisiana statute that apparently bans threatening public employees with lawsuits or complaints -- and not just with violence -- "with the intent to influence [the employee's official] conduct."
Rare Obscenity-as-to-Minors Conviction for Showing a Non-Porn Movie
A 2016 Ohio appellate case I recently came across.
"Racial Ridicule" Is a Crime in Connecticut -- and People Are Being Prosecuted
There is no First Amendment exception for "hate speech," and the government can't specially target racist or religiously bigoted speech -- but some Connecticut prosecutors seem not to know that.
Bystander's Defensive Shooting of Titusville Shooter Has Nothing to Do with "Stand Your Ground"
As often happens, news reports misunderstand what "stand your ground" laws mean.
Intellectual Property, Big Data, and Streaming: Porn and Beyond
Profs. Kal Raustiala & Chris Sprigman will be guest-blogging about this week, based on their new law review article.
Videorecording Public Servants in Public
Most federal circuit courts have held that people generally have a right to record what police officers do in public places. But how far does that extend?
Careful with Filing Sealed Documents
For the third time in the last three weeks, I've noticed federal court documents that were supposed to be filed sealed but weren't. UPDATE (Monday, Aug. 6): Just came across a fourth instance, in a state trial court.
N.J. Court Orders Google to Vanish Plaintiff's Photo -- Published at the Chicago Tribune -- From Search Results
The "right to be forgotten" sneaking into American courts? Google has not complied with the court order -- and the plaintiff is now trying to get it held in contempt of court.
Free Speech and Computer Code -- 3-D Printer Gunmaking Files and Beyond
Three ways of thinking about the problem: 1. Software is like hardware. 2. Software is like instruction manuals. 3. Alexa, read this book and make me a gun.
Legal Duty to Report Your Coworkers' Off-the-Job Crimes?
That's what a New Jersey appellate court seems to have created, based on the theory that a criminal's coworkers somehow have a special duty to the victim -- even when the crime has nothing at all to do with the job.
Likely Sarcastic Facebook Post Can't Justify Arrest of Author for Threats
Police generally need to investigate matters further, to see if the post was really a threat or sarcasm -- and if they don't investigate further, and don't have a good reason for the immediate arrest, they can be sued for a Fourth Amendment violation, and be denied qualified immunity.
Injured Trump Supporters' Lawsuit Against San Jose Can Proceed, Says Ninth Circuit
"The Attendees allege the Officers shepherded them into a violent crowd of protesters and actively prevented them from reaching safety. The Officers continued to implement this plan even while witnessing the violence firsthand, and even though they knew the mob had attacked Trump supporters at the Convention Center earlier that evening."
School District Provides $25K + Apology to Student Barred from Wearing "Trump Border Wall" T-Shirt
A follow-up to the May federal court decision holding that the school district's actions violated the First Amendment.
Cleveland City Councilman Got Order Requiring Two Citizen Critics to Stay 500 Feet Away from Him
Yet the order (narrowed on appeal to 50 feet, but still unconstitutional) seems to have been based on pretty normal -- if acrimonious -- local political debate. We're asking the Ohio Supreme Court to review the decision upholding it.
Ninth Circuit: Second Amendment Secures Right to Carry Guns in Public
The Ninth Circuit had earlier held -- citing D.C. v. Heller -- that the Second Amendment doesn't secure a right to concealed carry, but the panel now holds that it secures a right to carry openly (though it reserves the possibility that a state might be able to choose whether to allow open carry or to allow concealed carry).
New Twist on Legal Citations: The "(Cleaned Up)" Parenthetical
A useful development, which dozens of court opinions have now used.
Statistics in NIFLA v. Becerra, the Crisis Pregnancy Center Disclosure Case
Check out how the majority and the dissent describe one aspect of the California disclosure rules.
"Indictment: Man Behind Cyberattacks Was Working for Wichita Lawyer"
Federal prosecutors have indicted two men for attacking Leagle (an online repository of court opinions), RipOffReport (a consumer gripe site), and JaburgWilk.com (the site of a law firm that sometimes represents RipOffReport).
The Mismatch Effect: A Danger for Students of All Races
A very interesting article from Prof. Robert Steinbuch (Arkansas / Little Rock).
Mark Zuckerberg Speaks Out Against Removing Holocaust-Denying Speech
Indeed, Facebook shouldn't set itself up as the arbiter of historical truth (or scientific truth or moral beliefs) -- and doing that even as to Holocaust denial would just yield pressure for much more.
Second Amendment Injunction Against California Ban on Large-Capacity-Magazines Kept in Place by Ninth Circuit
The panel concludes that the district court didn't abuse its discretion in issuing the injunction -- though the decision is non-binding.
"No Prison Time for … Day-Care Provider Who Tried to Hang Toddler"
Minnesota state judge Jay Quam took the view that her actions stemmed from a "perfect storm of factors unlikely to ever be repeated."
Judge Rescinds His Order That Had Required L.A. Times to Alter Story
The Times had published material from a plea agreement that was supposed to be sealed, but had been erroneously released by the court.
TV Station Ordered to Expunge Archived Story About Teacher's Dismissed Domestic Violence Charges
The "right to be forgotten" comes to Texas.
Court Feels "Compelled to Express … Dismay at [SUNY Buffalo's] Cavalier Attitude Toward Petitioner's Due Process Rights"
"We remind respondent -- and all other colleges and universities, particularly state-affiliated institutions -- of their unwavering obligation to conduct student disciplinary proceedings in a manner that comports with fundamental notions of due process for the accused, that renders determinations consistent with the facts, and that respects the presumption of innocence to which all students are entitled."
"Judge Orders LA Times to Alter Story About Glendale Cop"
A brewing First Amendment controversy, triggered by newspaper's publishing information about a plea agreement in the policeman's prosecution -- the agreement was intended to be sealed, but was inadvertently briefly released unsealed on the docket.
Heather Has Two Daddies and a Mommy
A Newfoundland court holds (relying on a precedent involving a lesbian couple) that children of polyamorous families may have more than two parents, notwithstanding a statute that would not have allowed this.
Religious Leader Demands Suppression of "Blasphemous" Plays
So report Czech media.
First Circuit Holds Most Anti-Libel Injunctions Are Unconstitutional
Federal and state courts are divided on whether such injunctions are constitutional, and the U.S. Supreme Court has not weighed in.
Mississippi Supreme Court Rejects Chevron Deference to State Administrative Agencies
This is the state-law version of the debate now happening at the federal level. [UPDATE: A Wisconsin Supreme Court decision a couple of weeks ago took the same view.]
Marquette University "Breached Its Contract with Dr. McAdams When It Suspended Him for Engaging in Activity Protected by the Contract's Guarantee of Academic Freedom"
So holds this morning's important Wisconsin Supreme Court decision, by a 4-2 vote.
Qualified Immunity in State Constitutional Lawsuits
Iowa Supreme Court majority and dissenting opinions canvass the state of the law.
The Double Jeopardy Clause, and Federal Prosecutions After State Prosecutions
The Supreme Court has agreed to reconsider the "separate sovereigns" exception to the Double Jeopardy Clause -- and Justices Ginsburg and Thomas seem to both be on the defendant's side.
Supreme Court Trying Again on the First Amendment Retaliatory Arrest Question
The question that the Court didn't resolve in Lozman v. Riviera-Beach is back, in another case on which the Supreme Court just granted review.
The Janus Dissent's Odd Underreading of Government Employee Speech Rights
"If an employee's speech is about, in, and directed to the workplace, she has no 'possibility of a First Amendment claim,'" say the dissenters -- but that's not what the First Amendment caselaw says.
The Limited Effects of the Supreme Court's Janus Decision
States that want to allow public sector unions, and avoid "free-rider" problems, should still be able to do that -- just by paying unions directly, rather than via compelled agency fees.
NIFLA v. Becerra and Speech Compulsions
Today's Supreme Court decision adds to the law -- and the uncertainty -- about when the First Amendment bans the government from requiring speech.
