The Volokh Conspiracy

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

From today's decision by Judge Thomas Thrash (N.D. Ga.) in Winer v. Mohammad:

This action arises out of alleged defamatory statements that Defendant Umaymah Mohammad, a student at the Emory University School of Medicine ("SOM"), made about Plaintiff Joshua Winer, a physician and professor at Emory. Mohammad, who is Palestinian, sent an email to the entire SOM student and faculty body on January 17, 2024, in which the Plaintiff alleges she "praised terrorism against Israel, expressed her hatred towards Israel and the United States, and stated that Israel, the United States, and Emory are perpetrating a genocide against Palestinians in Gaza."

Nearly two months later, in March 2024, the Plaintiff published an op-ed piece in an Israeli news publication sharing his decision to travel to Israel to volunteer as a physician in the Israeli Defense Force ("IDF") following the October 7th Hamas attack on Israel. The Plaintiff identifies as Jewish and maintains dual American and Israeli citizenship. He is a surgical oncologist at Emory Winship Cancer Institute, a professor in the Department of Surgery, Division of Surgical Oncology at the SOM, and serves as the SOM Surgical Clerkship Director.

In April 2024, Mohammad participated in an interview for a news organization called Democracy Now!. In the interview, Mohammad was asked about the email she sent and was asked to explain the importance of the issue to her. As part of her response, Mohammad referenced Winer by stating that

one of the professors of medicine we have at Emory recently went to serve as a volunteer medic in the Israeli Offense Force [sic] and recently came back. This man participated in aiding and abetting a genocide, in aiding and abetting the destruction of the healthcare system in Gaza and the murder of over 400 healthcare workers, and is now back at Emory so-called teaching medical students and residents how to take care of patients.

Mohammad was ultimately suspended from the SOM for one year based on her comments in the Democracy Now! interview. In November 2024, Mohammad participated in a podcast hosted by the International Union of Scientists in which she made similar statements about the Plaintiff. In January 2025, she made more statements about the Plaintiff's IDF service in the online publication Mondoweiss. In the Mondoweiss piece, Mohammad alluded that the Plaintiff "believe[d] in the legitimacy of apartheid, and that some human lives are not as important as others."

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During a recent Sunday worship service at Cities Church, a Southern Baptist congregation in the Minneapolis–St. Paul area, protesters entered the sanctuary and interrupted the service, chanting slogans related to immigration enforcement and ICE. The incident was captured on video, including the church's livestream. Church leaders and congregants later described the intrusion as frightening and deeply disruptive.

Given the early stage of the proceedings, one can't draw firm conclusions about either the facts or the law. But we do know enough for some early observations.

At a high level, the episode sits at the intersection of three familiar principles. Political protest lies at the core of First Amendment protection. At the same time, the First Amendment does not confer an entitlement to enter private property or to substantially disrupt a private gathering simply because one has something important to say. A church sanctuary during worship is not a public forum; it is a private religious space dedicated to a specific purpose. For that reason, incidents like this are often addressed through ordinary, content-neutral state criminal law, such as trespass or disorderly conduct.

The Minnesota authorities don't seem inclined to prosecute, though. But the feds do. According to recent reports, federal authorities have arrested two protest organizers. I don't think the precise charges have been publicly clarified, but the feds had previously indicated that they were investigating potential civil-rights violations.

One statute they reportedly are considering is the Freedom of Access to Clinic Entrances Act, or FACE Act, 18 U.S.C. § 248. In addition to its application in the clinic-access context, the Act makes it unlawful to use "force," "threats of force," or "physical obstruction" to intentionally "injure, intimidate or interfere with" a person "exercising or seeking to exercise" the right of religious freedom at a place of worship. Whether those elements are met here will depend on the facts—for example, whether protesters physically blocked worshippers' movement, whether they employed threats or intimidation, etc. The statute does not criminalize protest as such.

Whatever the ultimate legal analysis, these issues matter beyond this particular episode. People debate what the free exercise of religion means, legally and philosophically. But, at least as far back as John Locke, the right to worship peacefully has been understood to lie at its core. If free exercise doesn't mean the right to worship peacefully in your own sanctuary without being interrupted by outside protesters, it's hard to know what it would mean. Protecting that right is essential to religious pluralism and to living together amid deep disagreement.

I discuss these issues in more detail in a short Legal Spirits episode, available here.

From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Prof. Joel M. Gora (Brooklyn Law School), who was one of the lawyers who argued Buckley (on behalf of the ACLU) before the Supreme Court:

It is an honor to participate in this celebration of the 50th anniversary of the landmark case of Buckley v. Valeo. I have been privileged to spend my entire professional career working in the area of constitutional law, and especially the protections of the First Amendment. As a full-time lawyer at the American Civil Liberties Union for a decade, and then as a volunteer lawyer for many years after, I started my teaching career at Brooklyn Law School. I estimate that I have worked on more than 100 Supreme Court cases, the majority of them dealing with rights under the First Amendment. Of all those cases, the one I am proudest to have worked on, and the one I think has had the greatest positive impact on political freedom, is the Buckley case decided by the Supreme Court on January 30, 1976. It was a watershed moment for the Court, and for the country.

Years later, when politicians sought to pass increasingly restrictive federal campaign finance laws, a Democratic leader was asked about whether they posed a problem under the First Amendment. His response was, in effect, you can either have free speech or fair and healthy elections, but you can't have both. My response was that precisely the opposite was true: You can't have one without the other.

Free speech is not the enemy of democracy; free speech is the engine of democracy. It is the most powerful political tool we have to control the government. To allow the government to control free speech is to take away that most powerful tool. That was what was at stake in the Buckley case. And the Court did an outstanding job, but not a perfect one, of protecting that vital tool.

The Origin Story: Five Years Earlier

Free Speech Buckley v. Valeo at 50

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Back in December, the U.S. Court of Appeals for the Third Circuit affirmed a district court order concluding that Alina Habba was not lawfully acting as the U.S. Attorney for the District of New Jersey.

Yesterday, the Third Circuit denied a petition for rehearing en banc. Of the twelve judges eligible to participate in the en banc vote, three noted their dissent from the order (Judges Phipps, Matey, and Mascott), one of which (Mascott) "will file a separate dissent sur rehearing on a later date."

The question now is whether the Administration will seek to bring this case to the Supreme Court.

My co-blogger Paul Cassell offered commentary on the Third Circuit's "curious" initial decision here.

Today is International Holocaust Remembrance Day. We often repeat, reflexively, "Never again." Yet far too many people forget the "again" part. Antisemitism has been with us since the beginning of recorded history. While it is important to study the Holocaust, modern education fixates on that Shoach at the expense of obscuring the long train of hatred towards Jewish people that continues to this day. That education also portrays Jews as victims, and teaches that anything short of mass extermination is not that big of a deal. I would commend a new op-ed in the Wall Street Journal, titled "Holocaust Education Obscures Antisemitism." It begins:

On Holocaust Remembrance Day, Jan. 27, it's important to reflect on, mourn and remember the six million Jews murdered by the Nazis. As time passes and the Holocaust fades further from memory, this somber day grows increasingly important. Yet with antisemitism surging and Jews being murdered in attacks worldwide, it's clear that remembering is no longer enough. If our understanding of Jew-hatred remains locked in the past, there's a risk that current and future forms of antisemitism will spiral out of control.

Today is a very fitting day to publish my new essay in Civitas Outlook, titled Anti-Semitism and Anti-Christian Zionism On The Right. From the introduction:

On the political left, antisemitism has long been cloaked under the garb of anti-zionism. Those advocating for Palestinian rights insist they have no animosity towards Jews, but simply reject Zionism: the belief that Israel is the Jewish state. The defense of Zionism invariably falls to Jewish people, who explained that this purported anti-zionism was little more than a ruse for anti-semitism. And in recent times, Jews found allies on the right with Christians who zealously supported Zionism as both a matter of policy and faith. But a rupture is forming. A rising tide on the right is attacking Zionists and Christian Zionists alike. In every civilization, antisemitism has morphed to match the circumstances of the day on all sides of the political spectrum. Regrettably, this movement to oppose Christian Zionism is little different than left-wing anti-Zionism on college campuses. As the very bounds of conservatism continue to ebb and flow, stark lines are being drawn of how those on the right view Israel and the Jewish people. Conservatives need to account for how this shift is drastically altering American domestic and foreign policy.

It is tempting to start this analysis with Kevin Roberts's ill-fated defense of Tucker Carlson. But we should step back a bit further. It has been widely reported that Carlson did nothing to push back against Nick Fuentes, a Holocaust denier, when Carlson interviewed him. But Carlson did express some opinions of his own. He described Christian Zionists as a "Christian heresy" whom he "dislikes more than anybody." Among these heretics were Ambassador to Israel Mike Huckabee, Senator Ted Cruz, former President George W. Bush, and others. Carlson actually said that Cruz was "serving for Israel." Tucker charged that this Zionism is a "brain virus." The implication was clear: disloyal American Jews have infected Christians to advance Israeli interests over American interests. Stop me if you've heard this trope before.

And from a somewhat hopeful conclusion:

Perhaps there is some room for hope. In a recent interview, the New York Times asked President Trump, "Do you think there's room within the Republican coalition, the Make America Great movement, for people with antisemitic views?" Trump replied, "No, I don't. I think we don't need them. I think we don't like them." Trump is right. It is perverse to include Anti-Zionists and cozy up to antisemites. Christian Zionists should be welcomed, and antisemites excluded.

Never again means never again.

From a decision in November in Hendry v. State, written by Indiana Court of Appeals Judge Leanna Weissmann, joined by Judges Mark Bailey and Elaine Brown:

Craig Hendry became a frequent visitor to city hall in the small town of Clinton, where he filmed confrontational interactions with employees and posted the videos to his YouTube channel. After he uploaded his first video from Clinton and listed the phone number of the mayor's office in the video's caption, city hall received hundreds of threatening phone calls and voicemails [apparently over about 30 days]….

There's a lot going on in the case, including a conviction for "target[ing] the mayor's assistant, P.K., banging on her closed office door and filming her through her closed blinds," and "follow[ing] P.K. to her car." But I was particularly struck by the prosecution for posting the phone number:

Hendry acknowledges that the phone calls and voicemails constituted harassment. The harassment statute at issue here criminalizes the placement of phone calls with the intent to "harass, annoy, or alarm" and without the intent of legitimate communication. After Hendry posted his video in April 2022, the city received over 350 threatening voicemails, and only a few conveyed actual matters of city business. Hendry acknowledged at trial that many of the messages were "disgusting and threatening," and on appeal concedes that those threatening messages "constitute an 'abuse' of the right to free speech." Hendry also does not refute the connection between his videos and the messages. Threatening calls spiked just after the videos were posted and continued in significant numbers in the weeks that followed. Most of the messages referred to the people and events depicted in Hendry's videos….

Free Speech

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From Judge Jamal Whitehead (W.D. Wash.) Friday in Young v. Boeing Co. (W.D. Wash.):

According to Troglia—who identifies as "mixed race (Hispanic) and not 100% Caucasian"—Young became frustrated and called Troglia a "bitch ass nigger"¹ on February 24, 2023, while the two were working together….

¹ Throughout this order, the Court uses the phrase "N-word" when speaking in its own voice. But when quoting the record, the Court reproduces the actual language used. Judicial opinions that euphemize the record risk obscuring the very conduct at issue. Where, as here, the use of a racial slur is central to an employer's termination decision and the plaintiff's claims, the Court declines to place a thumb on the scale by softening the language that drives the dispute.

Of course, as Randy Kennedy and I noted in our The New Taboo: Quoting Epithets in the Classroom and Beyond, different judges exercise their discretion differently on such matters: Some judges avoid expurgation altogether (see, e.g., this decision from last week); others expurgate some slurs; others expurgate a wide range of vulgarities; and others expurgate some mentions of a slur but not others (e.g., not direct quotations from the record). In any event, this example struck me as worth noting.

Free Speech

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1/27/1955: Chief Justice John Roberts's birthday.

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From the opinion by Judges Bobby Shepherd and David Stras in Tincher v. Noem:

The district court entered a preliminary injunction with respect to federal immigration-enforcement operations in Minnesota. The injunction is unlikely to survive the government's … appeal, so we stay it pending a final decision in this case.

Six individuals who have "observed" and protested Operation Metro Surge, the ongoing immigration-enforcement effort in the Twin Cities, sued on behalf of "[a]ll persons who do or will in the future record, observe, and/or protest against" it. The preliminary injunction covers all of them and limits what federal agents who take part in the operation or respond to the protests can do while carrying out their official duties. Included in the district court's order are prohibitions on "[r]etaliating against" anyone "engag[ed] in peaceful and unobstructive protest activity" and stopping vehicles without "reasonable articulable suspicion that [the occupants] are forcibly obstructing or interfering with" immigration-enforcement activities.

For at least two reasons, the government has made "a strong showing" that its challenge to the injunction "is likely to succeed on the merits." First, the grant of relief to such a broad uncertified class is just a universal injunction by another name. See Trump v. CASA, Inc. (2025) (holding that "federal courts lack authority to issue them"). Even if "courts may issue temporary relief to a putative class," this one has no chance of getting certified. A.A.R.P. v. Trump (2025). And overlooking the difficulties of certification, as the Supreme Court did in A.A.R.P., is not necessary "to preserve our jurisdiction." …

We accessed and viewed the same videos the district court did. What they show is observers and protestors engaging in a wide range of conduct, some of it peaceful but much of it not. They also show federal agents responding in various ways. Even the named plaintiffs' claims involve different conduct, by different officers, at different times, in different places, in response to different behavior. These differences mean that there are no "questions of law or fact common to the class" that would allow the court to decide all their claims in "one stroke."

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Staten Island was a curious place to grow up. Though it is one of the five boroughs of New York, culturally, it felt very different. And politically, it is a different world. Staten Island has consistently voted for Trump and other Republican candidates, even as the rest of New York sprints down the road to Democratic Socialism serfdom.

From a perspective of geography, Staten Island is also unique. There are several bridges that connect Staten Island: three go to New Jersey, and one, the Verrazzano-Narrows Bridge, goes to Brooklyn. (Fun fact: you only pay the toll when you enter Staten Island, not when you leave.) The Staten Island Ferry connects Staten Island with lower Manhattan. (There are some other smaller ferries that connect to different piers in Manhattan.)

How should congressional representation for Staten Island work? Well, its population is not high enough to justify its own district. So for the past four decades, Staten Island's congressional district has included parts of Brooklyn (mostly Bay Ridge). That move made sense as a matter as geography, as it was the only contiguous land mass that Staten Island was connected to.

But Marc Elias had other ideas. As I wrote in October, Elias filed suit in state court, arguing that New York's maps dilute the votes of black and Hispanic voters in Staten Island. Elias argues this dilution violates the New York Voting Rights Act. His preferred map would form a single congressional district out of Staten Island and parts of lower Manhattan, including the financial district and the West Village. Again, there is no contiguous natural or manmade connection between Staten Island and Manhattan. There is only a ferry service that travels between the spots. (You can also take a lengthy bus ride that goes through Brooklyn or New Jersey.)

Of course, the upshot of this suit is that the only Republican district in New York City would vanish. This is the Voting Rights Asymmetry. The law only helps Democrats at the expense of Republicans. None of these regimes are about racial discrimination, especially in a deep blue state that will likely never elect another Republican statewide in my lifetime.

Alas, a trial court has agreed with Elias's case. The Wall Street Journal has this editorial, titled Democrats Try to Steal Staten Island.

From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Allison R. Hayward, who is now a Board member of the Foundation for Individual Rights and Expression (FIRE), and has served as the Head of Case Selection for the Facebook Oversight Board, Commissioner on the California Fair Political Practices Commission, Co-Chair of the Board of the Office of Congressional Ethics, and Vice President of Policy at the Center for Competitive Politics (now the Institute for Free Speech):

Pity (for a second) the Supreme Court in Buckley v. Valeo. Presented with a multifaceted challenge to the ambitious and bloated 1974 amendments to the Federal Elections Campaign Act (FECA 1974), the Justices heard oral arguments on November 10, then met and corresponded over the 1975 holiday season to produce a decision that would land well before the 1976 election. This statute raised constitutional issues beyond its First Amendment implications, but I'll focus on its speech-restrictive aspects.

One key Buckley holding is the express advocacy standard. Briefly, express advocacy was Buckley's interpretation of the FECA 1974 provision limiting independent expenditures to $1,000 per year. The Court observed that the statute's description of such an expenditure as "relative to a clearly identified candidate" was unconstitutionally vague. As a fix, the Court interpreted the phrase to reach "only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Helpfully, the Court added in a footnote (likely at the suggestion of Justice Brennan) "communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject." This litany has been derisively called "magic words" by detractors. It was obviously a refinement to the statute made by judges—not legislators.

The Court interpreted the clause to save it from unconstitutional vagueness, but then held that the $1,000 independent expenditure limit was itself unconstitutional. In part, this was because the narrowing construction made the limit ineffective. That might prompt someone to wonder whether the Court's redrafting of the statute (as opposed to declaring it unconstitutionally vague and leaving the wordsmithing to Congress) was sound. But such restraint would have thrown key provisions of campaign law into flux for the 1976 election. Yes, the Court should resist the temptation to write law. In practice, however, the Court provided the answer that political actors needed in January 1976.

Did "express advocacy" apply only to a now moot expenditure limit? Not so fast. "Expenditures" also trigger reporting requirements. The definition needed narrowing there, too. For spenders who are not political committees or candidates, the Court affirmed FECA's independent expenditure reporting requirements, but only if limited to expenditures containing express advocacy.

Free Speech Buckley v. Valeo at 50

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From Judge Sharon Johnson Coleman (N.D. Ill.) today in Chehade v. Foley & Lardner, LLP:

[O]n October 7, 2023, … [Jinan Chehade, a Muslim woman of Arab descent,] shared this message on social media:

"As you see Palestine in the news, keep two things in mind:

Colonization is inherently violent. Occupation is violent. Israel's existence was brought about by violence. Never equate the violence of the oppressed with that of the oppressor. The colonized with the colonizer.

If you support Palestine understand that necessitates supporting our right to defend ourselves and liberate our homeland by any means necessary. The colonizing power determined what was necessary when they colonized us by force and continue to genocide Palestine. You cannot claim to stand with Palestine if you prefer us to be slaughtered without fighting back. Freedom has only ever been achieved through resistance.

#FreePalestine #WithinOurLifetime"

Chehade made further remarks at a public meeting of the Chicago City Council on October 11, 2023. At the City Council meeting, Chehade opposed a resolution condemning the Hamas attack, which she explained was "completely one-sided and made no mention of Palestinians." She said:

"The Western Zionist controlled media machine would have you believe that this was an unprovoked attack. However, this is the natural response to 75 years of occupation, such that this resistance is a legal right for the Palestinian people according to international law… I'm sorry the people of Gaza did not sit quietly."

Chehade was scheduled to start her position at Foley on October 23, 2023. The week before, on October 16, a Legal Recruiting Assistant at Foley named Ayesha Karim searched for Chehade online. She claimed that she needed to find a photo of Chehade for Foley's "2023 New Associate Directory." Karim came across Chehade's statements and brought them to the attention of Amy Moynihan, Foley's Director of Legal Recruiting. Later that day, Moynihan wrote to a group including Foley's Chairman and CEO, Daljit Doogal; former Managing Partner, Stanley Jaspan; Chair of Foley's National Recruiting Committee, Robert Scher; and Chief Talent Officer, Jennifer Patton.

Free Speech Religion and the Law Race Discrimination

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Today the Court summarily reversed the Fourth Circuit in Klein v. Martin, an AEDPA case. As Jon Adler noted, the Fourth Circuit may be the new Ninth Circuit for habeas. But the vote here was not unanimous. Justice Jackson would not have granted the writ, though she did not include an opinion explaining her reasoning. She only offered a single sentence:

JUSTICE JACKSON would deny the petition for a writ of certiorari.

There is a long-running debate about how many votes are needed for a summary reversal. Is it five or six? Here, as many as three other justices might have agreed with Jackson, and not noted their vote, but I think it unlikely.

I did a quick search for summary reversals, where there is not some intervening merits decision, and where a Justice would deny the writ without a published opinion. There are only a few examples from the Roberts Court.

Box v. Planned Parenthood of Indiana & Kentucky, Inc., 587 U.S. 490, 493, 139 S. Ct. 1780, 1782, 204 L. Ed. 2d 78 (2019) ("Justice SOTOMAYOR would deny the petition for a writ of certiorari as to both questions presented.")
Sears v. Upton, 561 U.S. 945, 956, 130 S. Ct. 3259, 3267, 177 L. Ed. 2d 1025 (2010) ("THE CHIEF JUSTICE and Justice ALITO would deny the petition for a writ of certiorari.").
Erickson v. Pardus, 551 U.S. 89, 95, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) ("Justice SCALIA would deny the petition for a writ of certiorari.").
Los Angeles Cnty., California v. Rettele, 550 U.S. 609, 616, 127 S. Ct. 1989, 1994, 167 L. Ed. 2d 974 (2007) ("Justice SOUTER would deny the petition for a writ of certiorari.").

There were a number of dissents with an intervening precedent, and a Justice disagreed with the GVR, but did not issue an opinion. Justices Thomas and Gorsuch cast several such voters after Ramos.

The article is here; some excerpts from the Introduction:

An enraged King Henry II famously asked several of his barons, while the court met in Normandy at Christmas in 1170, "Will no one rid me of this turbulent priest?!" King Henry was referring, of course, to Thomas Becket, the incumbent Bishop of Canterbury and head of the Roman Catholic Church in England. Becket had steadfastly insisted on preserving the independence of the ecclesiastical courts and authority over bishopric appointments (much to King Henry's dismay). Subsequently, four of these same barons went from Normandy, in France, to Canterbury, in England, and proceeded to assassinate Becket, on December 29, 1170, while he was conducting a prayer service in Canterbury Cathedral. The perpetrators (shockingly) escaped the king's justice. Perhaps Becket received some small justice, however, when Pope Alexander III proclaimed him a martyr and saint on February 21, 1173.

Could Henry II's musing, consistent with the requirements of the First Amendment, serve as a basis for criminal charges in the contemporary United States? On a first cut, one might answer this question negatively. After all, Henry II was in France; Becket was in England. His speech could not have produced an "imminent" threat to Becket's safety. On the other hand, the barons who assassinated Becket did so only four days after Henry II pondered aloud his abstract desire to be rid of "this turbulent priest"—which, for the Middle Ages, constitutes a rather rapid response.

Even if Henry II might not be on the hook for criminal incitement charges, which under the Brandenburg test require both a clear call to unlawful activity and circumstances in which the speaker's audience would likely act on the suggestion of unlawful action, a clever prosecutor in today's United States could evade the Brandenburg rule entirely through the expedient of charging Henry II with solicitation or conspiracy (rather than incitement). Would the First Amendment preclude solicitation charges on these facts? Or, for that matter, conspiracy charges? Moreover, should changing the criminal charges fundamentally affect the governing First Amendment analysis?

Current free speech doctrine offers a less than clear answer—but most likely solicitation charges would stand up against a Free Speech Clause challenge. The controlling Supreme Court precedent on point, Williams, decided in 2008, seems straightforwardly to hold that proposing a criminal action enjoys absolutely no First Amendment protection. The Supreme Court doubled down on this approach in 2023, in Hansen, holding that "[s]peech intended to bring about a particular unlawful act has no social value; therefore it is unprotected [under the First Amendment]."

Free Speech

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From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by John Samples, a former Vice President at the Cato Institute and currently a Member of Meta's Oversight Board:

In the late 1960s, the U.S. Congress began enacting campaign finance regulations. The reasons for those regulations are not hard to discern. In 1968, Eugene McCarthy, an anti-war challenger supported by a small number of large donors, effectively drove Lyndon Johnson from the presidency; a populist from the right did well, though short of securing the Democratic nomination. Richard Nixon narrowly defeated Hubert Humphrey by raising and spending what seemed to be, at the time, huge sums of money.

By limiting spending on campaigns, Congress sought to restrict competition and protect the political status quo. Spending limits would make it difficult to spend enough money to effectively challenge congressional incumbents. The equality of spending implicit in the presidential public financing scheme headed off a growing Republican advantage in presidential fundraising. And contribution limits further complicated challenging the status quo by making it harder to raise money.

Buckley v. Valeo considered how far election campaigns could be regulated and restrained under the First Amendment. As we know, the Buckley Court's answer was mixed: the government interest in preventing corruption or "the appearance of corruption" validated contribution limits. Public education fostered more speech, thereby educating the public. But the Court rejected spending limits as a limit on speech, and equality of spending as a justification for campaign finance regulation. The Court also upheld mandated disclosure of donors and donations.

What were the effects of Buckley? My answers to that question depend on two assumptions.

Free Speech Buckley v. Valeo at 50

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This morning, the Supreme Court summarily reversed a decision of the U.S. Court of Appeals for the Fourth Circuit in Klein v. Martin, concluding the Fourth Circuit failed to comply with the Anti-Terrorism and Effective Death Penalty Act (AEDPA) when (in an unpublished opinion), it awarded a new trial for Charles Brandon Martin. The decision was 8-1, as Justice Jackson dissented without issuing an opinion.

The Court's per curiam opinion in Klein explains the basis for the reversal:

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), strict standards govern the grant of federal habeas relief to prisoners convicted in state court. Faithful application of those standards sometimes puts federal district courts and courts of appeals in the disagreeable position of having to deny relief in cases they would have analyzed differently if they had been in the shoes of the relevant state court. But federal courts are dutybound to comply with AEDPA, and we have granted summary relief when the lower courts have departed from the role AEDPA assigns. See, e.g., Clark v. Sweeney, 607 U. S. ___ (2025) (per curiam); Dunn v. Reeves, 594 U. S. 731 (2021) (per curiam); Mays v. Hines, 592 U. S. 385 (2021) (per curiam); Virginia v. LeBlanc, 582 U. S. 91 (2017) (per curiam); White v. Wheeler, 577 U. S. 73 (2015) (per curiam).

This is such a case. Respondent Charles Brandon Martin was convicted in a Maryland court for the attempted murder of one of his girlfriends, Jodi Torok. The evidence against him was strong, his conviction was affirmed on appeal, and an appellate court held in a state postconviction proceeding that the State's failure to disclose certain impeachment evidence that was favorable under Brady v. Maryland, 373 U. S. 83 (1963), did not warrant a new trial because there was no "reasonable probability that the result of [the] trial would have been different" had the evidence been turned over. App. to Pet. for Cert. 115a (App.); see Kyles v. Whitley, 514 U. S. 419, 434 (1995) (the "touchstone of materiality is a 'reasonable probability' of a different result"). Because that decision neither was "contrary to" nor "involved an unreasonable application" of "clearly established Federal law," AEDPA required the denial of Martin's federal habeas petition. 28 U. S. C. §2254(d)(1). Yet the Court of Appeals for the Fourth Circuit affirmed the award of a new trial based on reasoning that departed from what AEDPA prescribes. We therefore grant the State's petition for a writ of certiorari and reverse.

This is the second time this term the justices have summarily reversed a habeas decision from the Fourth Circuit. It summarily reversed in Clark v. Sweeney in November. As I noted at the time, there were reasons to think that the Fourth Circuit would be replacing the U.S. Court of Appeals for the Sixth Circuit as the "new Ninth." Two summary reversals in habeas cases in a single term would seem to confirm the hypothesis, particularly as they come on the heels of the Fourth Circuit's 0-8 record from last term.

While the jurisprudential orientation of the Fourth Circuit may be at odds with that of the Supreme Court, there are also signs that the Fourth Circuit's judges are making an effort to follow the Supreme Court's lead. See, for instance, the recent unanimous panel opinion in The Sustainability Institute v. Trump, in which the court vacated district court injunctions barring the Trump Administration from terminating or suspending environmental and agricultural grants to nonprofit organizations. Judge Rushing's opinion for the panel in Sustainability Institute was joined by Judges Niemeyer and Heytens. (Judge Heytens had also joined the opinion below in Klein, while Judge Niemeyer dissented.)

Is Clark a sign of more reversals to come? Or does Sustainability Institute indicate the Fourth Circuit will come into line? Stay tuned.

From B.P. v. A.Z., decided last week by the California Court of Appeal, in an opinion by Justice Martin Buchanan, joined by Justices Judith McConnell and Julia Kelety; note that the upheld order isn't limited to defamation, and indeed bans future postings even if they aren't defamatory (unless they "concern[] [A.Z.'s] personal observations regarding [B.P.]"):

A.Z. appeals from an order granting B.P.'s request for a civil harassment restraining order (CHRO) on behalf of himself and his spouse P.I…. The dispute apparently originated from two other cases, one in which B.P. [an attorney] represented a party who sued A.Z. in a consumer fraud matter relating to her sales of German Shepherd puppies, and another in which A.Z. sued B.P. for defamation for accusing her of being an "animal abuser." …

A.Z. did not file a response to the CHRO request and did not appear at the … hearing…. According to the minute order, B.P. and P.I. appeared with two witnesses. After hearing testimony and reviewing exhibits, Judge [Rebecca] Zipp granted a three-year CHRO against A.Z. and imposed personal conduct and stay-away orders and a prohibition on possession of firearms, ammunition, and body armor.

Judge Zipp also ordered A.Z. to remove certain internet postings and explained this portion of her order as follows: "A court may restrain speech the court has adjudicated as unlawful, harassing, or defamatory. [¶] … [¶] [A.Z.]'s creation of the yelp web page for [B.P.] Law Office, as well as her posts about [B.P.] on [AZ].org constitute a knowing and willful course of conduct directed at [B.P.] that seriously alarms, annoys, and/or harasses him. These pages serve no legitimate purpose. I find that [A.Z.] created these sites and pages specifically to disseminate defamatory statements about [B.P.], and that [A.Z.] did use them solely to disseminate defamatory statements about [B.P.]. [¶] [A.Z.] is ordered to remove these postings within 24 hours of being served with the court's civil harassment restraining order. [¶] [A.Z.] is further ordered to desist from posting additional content online regarding [B.P.], including his likeness, for the duration of the order, unless such content concerns her personal observations regarding [B.P.]. [A.Z.] is prohibited from making knowingly false statements about her legal matters involving [B.P.]." …

Free Speech Libel

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