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Minnesota's "Nudification" Ban Repeats Unconstitutional Errors of Early Revenge Porn Bills
The lack of a scienter requirement renders the content-based ban unconstitutional.
More than a decade ago, states began enacting laws to prohibit so-called "revenge porn." Some partners would voluntarily exchange sexual photographs, but after the relationship ended, one of the partners would share the intimate images as a form of revenge. Later, the term "non-consensual pornography" became more common, as the pictures were not always shared by former partners.
Many of the early bills imposed what was effectively a strict liability standard without any scienter requirement. Over time, these bills were modified to include a scienter requirement, and these guardrails were essential to survive strict scrutiny.
While I doubted the constitutionality of early revenge porn bills, I came to the conclusion that the scienter requirement, as well as other guard rails, saved the laws. For example, the Minnesota Supreme Court upheld the state's revenge porn law in light of this narrow tailoring. That court observed in State v. Casillas (2020):
Second, a defendant must "intentionally" disseminate the image. Minn. Stat. § 617.261, subd. 1. This mens rea requirement means that a defendant must knowingly and voluntarily disseminate a private sexual image; negligent, accidental, or even reckless distributions are not proscribed. This specific intent requirement further narrows the statute and keeps it from "target[ing] broad categories of speech." Muccio, 890 N.W.2d at 928.
This background helps explain why a new Minnesota law is unconstitutional. This statute is commonly called an AI "Nudification" Ban, but it sweeps far more broadly. It provides in part:
Subd. 2. Nudification prohibited.
(a) A person who owns or controls a website, application, software, program, or other service must not:
(1) allow a user to access, download, or use the website, application, software, program, or other service to nudify an image or video; or
(2) nudify an image or video on behalf of a user.
The statute defines "nudify," in part, as "an image or video is altered or generated to depict an intimate part not depicted in an original unaltered image or video of an identifiable individual." The only exemption is when the web site "requires the technical skill of a user to nudify an image or video." The statute lacks any scienter requirement. The statute also lacks any exemption for images that have artistic, political, medical, or other educational value.
xAI, the maker of Grok, challenged the constitutionality of the ban. The district court denied the TRO and set the case for a preliminary injunction proceeding. That briefing has now completed.
xAI argues (correctly in my view) that the statute's lack of a scienter requirement renders the law unconstitutional:
The Act then compounds the problem by omitting every limit that might have confined it to addressing the harm the Legislature described. It has no scienter requirement, so liability turns on what a user managed to do rather than on anything the provider knew or could have prevented. It never mentions consent, so a woman who edits a photograph of herself is treated exactly like a stranger who edits her picture.
Minnesota doesn't really engage that argument, but instead contends that under intermediate scrutiny, there is no scienter requirement. I don't think this argument works. This statute is content-based, as it triggers liability directly based on the content of the generated image. (This is an argument I have advanced for some time in the 3D-printed gun litigation.) An image generated with people fully-clothed would not be subject to liability. But a picture of a shirtless man wearing speedos could generate liability. The absence of a scienter requirement, in this case, means the statute lacks the requisite narrow tailing. xAI's brief cites the Minnesota Supreme Court case mentioned above.
xAI recognizes how this tool can be abused, and the brief demonstrates numerous safeguards that Grock has put in place. The PI brief begins:
A state that seeks to guard its citizens against real harms nevertheless must also respect those same citizens' fundamental rights in the effort. In enacting HF 1606, the trouble is not that Minnesota sought to advance a legitimate interest in prohibiting the dissemination of artificially generated nude images of real people without their consent. xAI does not contest that interest, and it strictly prohibits its users from generating nude or sexualized images of people without their consent. Indeed, xAI has filed suit against users who evade its extensive technological blockers to generate such images in violation of this strict prohibition. The problem is that HF 1606 stretches far beyond the Legislature's claimed target to hit other, equally important rights protected by the Constitution.
The problem of overbreadth is something Minnesota should be familiar with. More than three decades ago, in R.A.V. v. City of St. Paul, the Supreme Court declared another well-intentioned law from the Land of 10,000 Lakes as a violation of the First Amendment. Justice Scalia observed:
Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.
Much the same can be said about the nudification law. The intentional use of AI for generating nude images of people is reprehensible. but Minnesota has the means to craft a carefully tailored statute to achieve this goal. In the First Amendment context, the court reviews the statute as drafted, and not the statute the lawyers present.
Voter Ignorance and the Problem of Confusion Caused by Candidates With Similar Names [Updated]
Voter confusion caused by candidates with similar names - as in the current Alaska Senate race - is part of the much larger problem of political ignorance.
As Cornell law Professor Michael Dorf explains in an interesting recent blog post, the currently ongoing Senate election in Alaska includes two candidates with almost identical names, one of whom may well be in the race to siphon off votes from the other:
In today's Senate primary election, Alaska voters will have many choices, including two named Dan Sullivan. One is the incumbent Republican. The other is a retired schoolteacher from Petersburg, Alaska with the same name. Republicans claim that the man I'll call Teacher Dan is running for the sole (or at least main) purpose of siphoning votes off from the incumbent and thus potentially handing victory to the Democratic challenger in a tight race. That's a plausible allegation given the jungle primary format. The top four finishers in today's primary advance to the general election. If two of those candidates are named Dan Sullivan, that could be enough to tip the outcome in favor of Democratic challenger and current House member Mary Peltola.
Is Teacher Dan in it only (or mostly) to siphon votes from Incumbent Dan? A NY Times story today reaches an uncertain verdict. Teacher Dan vociferously denies that he's running as a spoiler/siphoner, professing a desire to turn the Republican Party away from MAGAism and back towards its traditional norms and positions. However, the same story also indicates that Teacher Dan's views, as expressed through activism and donations, are pretty mainstream liberal Democratic….
The names are not quite completely identical. The incumbent senator is Dan S. Sullivan, and "Teacher Dan" (as Dorf calls him) is Dan J. Sullivan. But the similarity is great.
As Dorf notes, if "Teacher Dan's" campaign succeeds in exploiting voter confusion about the two men's names, there is an obvious sense in which it is undermining effective voter choice. I agree, even though - like Dorf - I would ultimately prefer that Democrat Mary Peltola win this race, as her positions are much less bad than those of most Republicans in the current Trump-dominated version of the GOP.
As Dorf notes, this is far from the first time that voters may get confused by candidates with similar names. In addition to cases he indicates, there is the example of the 2003 California gubernatorial recall election, where little-known candidate George Schwartzman finished ninth out of 135 candidates, beating several better-known ones, likely because voters were confused by the fact that his name is similar to that of famous actor Arnold Schwarzenegger. Schwarzenegger still won easily. But in a close election, the nearly 11,000 votes that Schwartzman got might have proved decisive.
Dorf points out that if "Teacher Dan" really is in the race primarily to siphon off votes through confusion, it is not clear whether his actions are illegal. While such exploitation of confusion is morally reprehensible, I am not sure it is a good idea to prosecute candidates who do this. They are indeed trying to deceive voters. But the same is true of many other candidates who routinely lie about and distort issues of all kinds.
Donald Trump is a particularly egregious example, going all the way back to his first campaign in 2016, and more recently with his lies about the 2020 election and other issues. But more conventional politicians also often resort to lies and deception, even if not to the same degree. President Obama, for example, famously lied when he claimed that, under the Affordable Care Act, "if you like your health care plan, you can keep it." That deception won the 2013 Politifact Lie of the Year award. But it still helped Obama get reelected in 2012. I am not sure exploiting voter confusion about names is any worse than exploiting their ignorance about policy issues like crime, immigration, and health care.
Trying to prevent such exploitation through criminal and civil liability is likely to violate the First Amendment. In addition, it would likely end up giving incumbent political leaders broad power to curb speech and control electoral campaigns that they cannot be trusted with.
Ultimately, both exploitation of voter confusion about names and other deceptions used in campaigns seek to exploit widespread voter ignorance. Because of the combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation), most voters know little about government and public policy, and often do a poor job of evaluating the information they do know. This makes them vulnerable to deception and manipulation, and incentivizes politicians to lie and otherwise distort the truth.
Voter confusion about candidates with similar names is just another example of this broader problem. Voters who follow politics closely and pay careful attention to their ballots should have little trouble distinguishing between the two Dan Sullivans. Indeed, they would likely know about this issue ahead of time thanks to all the media coverage it has gotten, and would thereby watch out for it when at the polls. The same goes for the difference between Schwarzenegger and Schwartzman, and other such situations. But, due to the incentive structure of voting, most people do not pay such close attention and are not especially careful in filling out ballots. Thus, many might be confused by candidates with similar names.
There is no easy solution to the problem of voter ignorance. But I assess a range of possible options in my 2023 article on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance, and in my earlier book Democracy and Political Ignorance. I believe the best approach is to make fewer decisions at the ballot box and more by "voting with your feet," where incentives to seek out information and evaluate it wisely are much better. But I recognize that any effective approach will take time, and there may be no one fix that is sufficient by itself. We may need to pursue multiple strategies. In the meantime, voters are likely to continue to be ignorant and confused about a variety of issues, and politicians and interest groups are likely to keep on exploiting that.
UPDATE: I have made minor additions to this post.
UPDATE #2: At the Election Law Blog, prominent election law scholar Rick Hasen notes that the Justice Department is investigating Dan J. Sullivan, and argues that an prosecution here would raise serious First Amendment concerns, and likely be unconstitutional:
If J. ultimately is charged with violating the Ku Klux Klan Act (18 U.S.C. s 241), which punishes a conspiracy to "injure, oppress, threaten, or intimidate any person in any State. . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States," I think J. would have a very strong First Amendment defense (and likely for the wire fraud claims too, but I don't know enough about what the basis for those charges might be)….
[T]his is not a case about tricking someone about the mechanics of the election not to vote. Nor is it a case of impersonation: J. is really named "Daniel Sullivan." It is not even a case about J. telling a campaign lie….
This is a case about someone running for office with impure motives who is lucky enough to have a name that could confuse some voters….
I don't see how the government could criminalize his running for office for having impure motives. And if it could do so, then it could be a crime every time that the Republican Party backs a Green Party candidate, or Democrats support a MAGA candidate in a primary in the hopes that the candidate would be weaker against a Democrat in the general election. This stuff happens all the time.
It would be quite dangerous for the state to start criminally prosecuting people for their political beliefs and secret motives. Are we going to put people on trial and probe their political allegiances?
I largely agree with Hasen's analysis on this point. "Teacher Dan's" behavior may be reprehensible, as is that of many politicians who use lies and deception exploit voter ignorance. But it probably cannot be prosecuted.
The Greater the Illegal Migrant Population, the Stronger the Case Against Mass Deportation
Cato Instiute immigration expert David Bier explains why.
Standard estimates of the illegal/undocumented immigrant population in the United States range from about 11 million to 15 million. But right-wing immigration restrictionists often assert the true figure is much higher, as with Donald Trump's claim that it is 25 million. The implicit assumption is that the higher the number, the stronger the case for mass deportation. But, as my Cato Institute colleague David Bier - a leading immigration policy expert - explains in a recent article (fuller, but paywalled version here) the exact opposite is true:
The math is simple. The more illegal immigrants, the more Americans would have to pay to deport them. The Department of Homeland Security estimates that a single deportation costs on average $18,245. This means that when Trump invents the presence of 10 million more immigrants, he's adding a theoretical $182.4 billion to the price tag.
And that's just the cost of deportation. The cost to federal revenue is even starker. Illegal immigrants pay sales tax — and, often, Social Security tax, income tax and property tax. The more illegal immigrants we deport, the more the cost of funding government would shift to American citizens and legal residents. The Congressional Budget Office estimated that recent illegal immigrant arrivals would have cut deficits by nearly $1 trillion over 10 years, and found that Trump's crackdown in 2025 had already erased $500 billion of those savings.
Illegal immigrants receive very few taxpayer benefits because they are ineligible for all the largest federal public benefit programs, and most states also restrict eligibility for smaller state programs. Since the benefits being paid are a known quantity, a larger illegal immigrant population suggests that the cost per immigrant is actually far lower than we think.
But the taxpayer expenses are dwarfed by the broader economic impact: less stuff produced for the American people. The Peterson Institute for International Economics has estimated that just 8.3 million deportations would leave U.S. gross domestic product 7.4% lower than otherwise by 2028, the equivalent of about $2.5 trillion. Lower output means fewer goods and services — everything from food to childcare — for Americans.
Higher figures also imply that the illegal migrants have an even lower crime rate than under conventional estimates of their numbers (which already show them to commit crimes at a much lower rate than native-born Americans):
If the Trump administration's hyperinflated figures were true, it would also suggest that illegal immigrants commit crimes at much lower rates than we thought. Using a far lower estimate of the number of illegal immigrants in the country, scholars had already calculated that, compared to native-born Americans, illegal immigrants were far less likely to be incarcerated. But again, since we know who is in prison, if the free immigrant population were to grow, the immigrant incarceration rate would fall in turn.
In other words, the Trump administration apparently believes that illegal immigrants are far less represented in the crime data than anyone else. Of course, the rate of crime — not the absolute number of crimes — is what matters, because the rate is how we estimate the likelihood that someone will become a victim of a crime. More immigrants would mean a much lower victimization rate — that the presence of illegal immigrants reduces the likelihood that Americans will be victimized.
I would add that deporting larger numbers of illegal migrants (or even trying to do so) increases the already severe impact of deportation efforts on the civil liberties of US citizens, including through racial profiling, illegal detention, killing and injuring of protestors, and more.
Furthermore, deporting larger numbers of people increases the number sent back to what for many is a lifetime of poverty and oppression, and sometimes an early death. It is unjust to use force to consign people to such a fate merely because they were born to the wrong parents in the wrong place.
As David Bier notes, some illegal migrants nonetheless do commit crimes, even if at a lower rate than US citizens. The answer to that problem is simple: just punish them the same as anyone else! As I have explained in other writings (e.g. here and here), we can significantly reduce crime rates, overall simply by abolishing ICE and transferring its resources to ordinary police, tasked with fighting violent and property crime.
Ending, or at least curbing, deportation operations would further lower crime by making Hispanic crime victims more willing to report crimes to the police. When local and state police assist in federal deportation efforts, reporting drops, thereby increasing crime significantly. Given widespread racial profiling by immigration enforcement agencies, even legally present Hispanics may often fear interactions with law enforcement, if the latter are involved in deportation efforts. And, obviously, many citizens and legal migrants have relatives who are undocumented, or who have been rendered so by the Trump Administration's massive effort to strip legal status from many immigrants who had it before, including Cubans, Nicaraguans and Venezuelans who fled communism, Iranian Christians who fled radical Islamism, Haitians who fled one of the Western Hemisphere's poorest and most violent societies, and more.
In sum, the greater the number of illegal migrants, the stronger the case against mass deportation.
No Pseudonymity for U Michigan Student Challenging Discipline for Using "Assertedly 'Fake' … Medical Note" "to Obtain an Accommodation"
From yesterday's decision by Judge Laurie J. Michelson (E.D. Mich.) in Doe v. Regents of Univ. of Mich.:
Plaintiff, a student at the University of Michigan, was disciplined for providing an "assertedly 'fake' telehealth medical note" to obtain an accommodation for her coursework. The University treated this as academic dishonesty, resulting in Plaintiff's suspension for the Winter 2026 semester and the inclusion of a disciplinary notation on her transcript. Plaintiff maintains that the note is genuine and filed this lawsuit against numerous University of Michigan officials and Academic Affairs employees alleging due process violations.
At the same time, Plaintiff filed a motion to proceed under the "Jane Doe" pseudonym. According to Plaintiff, "[t]his case challenges discipline imposed by a public university that is based on, and would necessarily litigate, Plaintiff's private medical information and education records." Moreover, continues Plaintiff, "[p]ublic disclosure of [her] identity would cause concrete and irreparable harm, including stigma associated with an 'academic dishonesty' finding and enduring damage to Plaintiff's educational and professional prospects due to disclosure of protected health information, including her pending graduate and professional school applications."
But cases raising "stigma-plus" due process claims, like this one, involve the disclosure of sensitive or stigmatizing information. Plaintiffs' discomfort with that fact is not sufficient to permit her to proceed anonymously, even absent any opposition from the defense….
Upcoming Speaking Engagements
Ilya Somin's upcoming speaking engagements for the Fall 2026 semester. Most are free and open to the public.
Below is my list of speaking engagements for the Fall 2026 semester. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.
I will likely add additional events and information to this post, as they are scheduled, and update details on existing ones. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business!
I will note that there are only very limited potential additional speaking slots during the fall semester, because I am a visiting professor at the University of Virginia, which creates some logistical constraints, given the need to split time between Charlottesville and my family's home in the Washington, DC area. But that arrangement will end in early December, and I can be more flexible after then, and in the spring semester.
September 17, Georgetown University Law Center, Washington, DC, 5:30-7:30 PM: "Tariffs, Nondelegation, and Executive Power" (tentative title), panel on "Democratic Governance and the Rule of Law." Other participants include include Carol Anderson (Emory), Bruce Swartz (Yale), Steve Vladeck (Georgetown), and Mary McCord (Georgetown) as moderator.
September 29, Princeton University, Princeton, NJ, time TBA: "Previewing the 2026-27 Supreme Court Term," (tentative title). Annual Supreme Court Preview Panel.
October 5, Washington and Lee University School of Law, Lexington, VA, 11 AM-1 PM: "Tariffs and the Separation of Powers." Sponsored by the Washington and Lee Federalist Society.
October 12, Emory Law School, Atlanta, GA, 12:15 PM-1:45 PM: "The Constitutional Case Against Exclusionary Zoning." Sponsored by the Emory Law School Federalist Society.
October 16, London School of Economics, London, United Kingdom, 2-3:30 PM: "Foot Voting, Federalism, and Political Representation" (tentative title), panel on "Rethinking the Rules of Political Representation," conference on "Taming Polarization: Reforming the American Federal Republic." Other panel participants will be Jenna Bednar (University of Michigan), Jonathan Rodden (Stanford University), and Nicola Lacey (LSE), as chair. Sponsored by the LSE Phelan US Centre. More information about this event available here.
October 21, Georgetown University Law Center, 5:45 PM-7:30 PM: "Is the Major Questions Doctrine Consistent with Textualism?" Debate with Prof. Chad Squitieri, Daniel Webster Debate Series. Sponsored by the Georgetown Federalist Society. I will be taking the affirmative side.
October 23, Boston University School of Law, Boston, MA, time TBA: "Tariffs and Executive Power," Panel on "Legal Interventions and Executive Overreach," symposium on "Presidentialism and the Escalation of Executive Power." Other panel participants will include Aaron Nielson (Univ. of Texas), Matt Segal (ACLU), and Corinne Blalock (Harvard).
November 3, Berry College, Mount Berry, GA, 11 AM-12:15 PM: "Tariffs and the Separation of Powers" (tentative title).
November 3, Berry College, Mount Berry, GA, 7-8:15 PM: "Free to Move: Foot Voting, Migration, and Political Freedom."
Suicides and Public Humiliation: Recalling Some Past Incidents
The tragic apparent suicide of Cambridge Prof. Jason Arday, following what appeared to be at least credible public allegations that he had engaged in false biographical claims, plagiarism, and (potentially) data falsification, has led people to argue that some in the media misbehaved in the matter. To quote Michelle Goldberg in the N.Y. Times yesterday ("After a Scholar's Awful Death, Mistaken Calls for Censorship"),
In the wake of Arday's death, many on the left are blaming the media. "The media lynched Jason Arday," declared Ibram X. Kendi. The head of a Cambridge college called for an official inquiry into the "media onslaught."
Important British progressives, including Zack Polanski, leader of the Green Party, and several Labour M.P.s, signed an open letter demanding some sort of official oversight of journalistic decision making. "Self-regulation of the press has comprehensively failed," it said. The writer Will Self called, in an open letter to Prime Minister Andy Burnham, for the police to begin "impounding computers," presumably belonging to people involved in covering the scandal.
I think it's often helpful in such situations to broaden the frame a bit, beyond the particular cause célèbre before us. It's human nature to be influenced in such situations by one's feelings towards the particular person involved, whether sympathy or antipathy. Looking at a wider range of examples can help us get beyond this bias.
I therefore thought I'd pass along some other examples of people committing suicide following episodes in which they were accused of misconduct, often publicly, and faced actual or possible loss of jobs or other business opportunities:
- In 2020, Dartmouth professor and department chair David Bucci was accused of "looking the other way" as to sexual harassment in the department, and "intimidate[ed] those who had spoken out." "Some colleagues shunned him. A woman at his food co-op called him a 'disgusting human being,' said his wife, Katie Bucci." Less than a year later, he committed suicide.
- In 2008, two University of Iowa professors (Mark O. Weiger and Arthur H. Miller) accused of sexually harassing their students, killed themselves.
- In 2011, University of Idaho professor Ernesto A. Bustamante was accused of threatening his ex-girlfriend (a graduate student), and "was either fired or forced to resign as a result." After that, he murdered the ex-girlfriend and killed himself.
- In 2019, German historian Marie Sophie Hingst committed suicide after having been found to have falsified much of her life story, including claims that many of her relatives had been murdered in the Holocaust. According to Wikipedia, "She was castigated in the German media, leading to the destruction of her reputation."
- In 2014, Japanese researcher Yoshiki Sasai committed suicide after his papers were retracted by the journal Nature based on "duplicated and mixed-up images, mislabeling, faulty descriptions, and 'inexplicable discrepancies ….'"
- In 2017, Japanese researcher Yoshihiro Sato apparently committed suicide after another researcher had uncovered what was described as "fabricat[ing] data."
- In 2021, Portsmouth (England) student Alistair Hall committed suicide after having been found to have plagiarized his final dissertation.
- In 2020, University of North Carolina Wilmington professor Mike Adams committed suicide after a wave of condemnation for various tweets that were said to be racist, sexist, and the like. His "rhetoric had been labeled 'vile' and 'hateful' by his own university," and the controversy had gotten a great deal of public attention and news coverage. In the wake of the controversy, he had apparently agreed to retire.
- In 2017, porn actress August Ames killed herself "after sparking an online backlash over allegedly homophobic comments." "Ames' death occurred after she was criticized on Twitter for refusing to work with a male performers who had previously appeared in gay adult films."
ABC's First Amendment Lawsuit Against FCC
From today's Complaint in ABC, Inc. v. FCC (D.D.C.):
Government censorship is deeply un-American. That fundamental principle predates the Republic, with our Founders recognizing that "the freedom of the press is one of the great[est] bulwarks of liberty." And it is no less true today, as the Supreme Court unanimously reaffirmed only two years ago: the government may not "use the power of the State to punish or suppress disfavored expression." NRA v. Vullo (2024).
This case concerns the Administration's sustained effort to do just that. Acting through the Federal Communications Commission, the Administration has waged a retaliatory campaign against ABC for a single reason: it disapproves of what ABC broadcasts.
That campaign began in this Administration's earliest days and has only intensified since. Again and again, the Administration has attacked ABC's speech—the stories its journalists report and the viewpoints its network programs air. Over time, those attacks have escalated into express demands that ABC be stripped of its broadcast licenses because of its speech.
In prosecuting the Administration's campaign against free speech on network television, the Commission fights on several fronts using its expansive regulatory powers. What has unfolded, in the words of sitting FCC Commissioner Anna Gomez, is "a sustained, coordinated campaign of censorship and control, carried out through the weaponization of the FCC's authority as a federal regulator and aimed at pressuring a free and independent press and all media into submission."
No Preliminary Injunction Against Alleged Defamation of Counselor by Estranged Wife/Ex-Client
From Patterson v. Patterson, decided by Chief Judge Brian Morris (D. Mont.) today:
James Patterson ("Plaintiff") filed this action on July 10, 2026 . Plaintiff filed a motion for a preliminary injunction and a Temporary Restraining Order ("TRO") on July 16, 2026. Plaintiff requests the following relief (1) to enjoin Defendant Cindy Patterson ("Defendant") from publishing defamatory statements about Plaintiff to any third party; and (2) to require Defendant to remove alleged defamatory comments posted on the internet….
Plaintiff has served as a longtime clinician, chaplain, ordained minister, military officer, VA Chaplain, and owner of a Counseling Service Business in Montana…. Plaintiff and Defendant (collectively the "Parties") met in Montana in 2014 when Plaintiff became Defendant's professional counselor. Defendant attended counseling sessions with Plaintiff over the course of 5 years. Plaintiff and Defendant communicated off and on every couple of months following the end of their professional relationship. Plaintiff contends that the Parties typically limited these communications to short discussions regarding Defendant's well-being. Plaintiff alleges, however, that Defendant began to "aggressively pursue" him for a romantic relationship around August 2020.
Plaintiff knew Montana had enacted ethical rules prohibiting therapists from entering romantic relationships with their former clients. Upon investigation into the Montana Administrative rules, Plaintiff found it reasonable to believe he could pursue a romantic relationship with Defendant. Plaintiff alleges to have consulted with an approved supervisor with the American Association for Marriage and Family Therapy in October of 2020. Plaintiff further alleges the supervisor informed him that a romantic relationship with a former client, such as Defendant, would not violate applicable ethical standards.
The Parties began a romantic relationship and ultimately married on February 12, 2021. The marriage began to deteriorate shortly thereafter in March of 2021. The Parties remain legally married while currently going through divorce proceedings. Plaintiff asserts that Defendant started to make statements concerning Plaintiff on social media and to third parties outside the divorce proceedings.
"As If These Blunders Were Not Enough," U.S. Attorney Office Management …
"decided to double book the same [prosecutor] for two trials on the same day," writes federal judge in blocking felon gun possession prosecution because of government failure to comply with Speedy Trial Act.
From Judge Beryl Howell's long opinion last week in U.S. v. Thompson; read the full opinion for details (and see here for more on the Speedy Trial Act, which provides more specific time limits and procedures than does the Sixth Amendment's Speedy Trial Clause):
The government's pending motion to dismiss without prejudice the indictment against defendant Adrian Thompson amounts to nothing more than a strategic attempt to circumvent the Speedy Trial Act in circumstances where noncompliance with this statute was inevitable and due entirely to the government's own mismanagement of this case.
After defendant was first arrested in 2024 and brought to the District of Columbia Superior Court, the charge against him was "no-papered," or declined for prosecution, but then he was arrested a second time in 2025 and charged in this Court and scheduled to face a jury trial on July 20, 2026, on a one-count indictment alleging felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Following a series of missteps by the U.S. Attorney's Office for the District of Columbia ("USAO-DC")—including double booking its line attorney for two trials scheduled to begin on the same day; knowing for over nine months about problems with an essential government witness but failing to make timely alternative plans; and ignoring defendant's repeated requests for discovery and Brady materials—the government realized in the lead up to the trial date, which had been proposed by the parties and adopted by the court four months earlier, that it is not ready. After first attempting to seek a continuance of "at least 90 days," which was denied on Speedy Trial Act grounds, the government is now requesting dismissal without prejudice pursuant to Federal Rule of Criminal Procedure 48(a).
Ninth Circuit Rejects Trump Administration Acting U.S. Attorney Appointment
A persuasive opinion by Judge Eric Miller curtails the Trump Administration's attempt to color outside the lines.
Yesterday, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit concluded that the Attorney General did not properly appoint Sigal Chattah as the Acting U.S. Attorney for the District of Nevada. The AG had named Chattah to the post in an effort to get around the need to either nominate a U.S. Attorney the Senate would confirm or accept a judicial appointment.
Judge Eric Miller wrote for the panel in United States v. Jackson. His opinion begins:
These cases present the question whether the Attorney General can make someone an Acting United States Attorney—bypassing the usual requirement that a U.S. Attorney be confirmed by the Senate—by designating that person as the first assistant to an already-vacant office of U.S. Attorney. We hold that the Attorney General cannot do so. Although the Federal Vacancies Reform Act of 1998 (FVRA) provides that a first assistant automatically succeeds to a vacant office, that rule of automatic succession applies only to a first assistant who held that position at the time the vacancy arose; it does not apply to a first assistant who never served under a validly appointed official. 5 U.S.C. § 3345(a)(1). Nor can the Attorney General create a de facto Acting U.S. Attorney by delegating all of the functions and duties of the U.S. Attorney to someone else. The FVRA is "the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office," so it prohibits a complete delegation of all of the U.S. Attorney's powers to a single person. Id. § 3347.
Applying those principles, we affirm the district court's order disqualifying Sigal Chattah, the putative Acting U.S. Attorney for the District of Nevada, from supervising the prosecutions of the defendants in these cases. We dismiss defendants' cross-appeals because we lack appellate jurisdiction to review the district court's denial of defendants' motions to dismiss their indictments.
From later in the opinion:
The government argues that when the Attorney General designated Chattah as the first assistant to the vacant office of U.S. Attorney, section 3345(a)(1) automatically elevated her to Acting U.S. Attorney. But section 3345(a)(1) does not apply to an official who, like Chattah, was not serving as the first assistant at the time the vacancy arose. In the alternative, the government argues that Chattah may exercise all of the powers of the U.S. Attorney by delegation from the Attorney General. But the FVRA is "the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency." 5 U.S.C. § 3347(a). The Attorney General therefore cannot rely on general delegation statutes to make Chattah the de facto U.S. Attorney.
Of potential interest, in the decision, Judge Miller also explains why a the panel gave a 2001 Office of Legal Counsel opinion upon which the AG relied in making the appointment is entitled to "no weight."
The next question is whether the administration will appeal.
Vanishing of Stories Mentioning Congressional Candidate Michael Carbonara, Due to "Bogus Copyright Complaints"
WLRN (Daniel Rivero) reports:
A string of bogus copyright infringement claims have been filed to Google over the course of several weeks, demanding that the search engine giant de-list articles about Carbonara's data center connections from search results. The complaints, filed by different entities with little information online, fraudulently claim that the articles are using copyrighted material.
WLRN has found that the effort largely paid off, making it nearly impossible for the public to find information about Carbonara's data center connections or other critical coverage of the candidate through a basic Google search….
The takedown efforts are allowed through the Digital Millennium Copyright Act (DMCA), passed by Congress in 1998. Social media companies, search engines and web hosts simply comply with all complaints as soon as they are filed, out of fear of being held liable for legitimate copyright violations….
Two days after WLRN published an article last month entitled "Candidate running for Project Tango district is embroiled in Michigan data center controversy," a company allegedly called Reynolds Media Group, based in the United Kingdom, sent a complaint to Google falsely claiming that the article was stolen from the Times of India. No information about the UK-based Reynolds Media Group can be found online, but it alleged that it represented the Indian newspaper in the complaint sent to Google. The company that owns the Times of India is The Times Group.
New in SCOTUSBlog: "The chief justice should share much of his power"
"All of the justices should take an equal role in guiding the court’s future."
Today's a busy day! SCOTUSBlog has published my new installment on Supreme Court reform. This piece focuses on (who else?) the Chief Justice. I write that the Chief should delegate some of his powers to the associate justices.
Here is the introduction:
Under longstanding tradition, the chief justice presides over oral argument and the justices' private conferences. I propose a change. The chief justice should delegate these presiding duties to his colleagues. Doing so would promote trust among the justices and allow for the experimentation of different leadership styles.
There are two primary duties to be delegates: presiding over oral argument and presiding over the conference.
The division of labor here could be done in different ways. For the simplest approach, each year, the justices could draw a number from a hat to select the presiding justice for a given term. Once a justice serves as chief, his or her name will be taken out of the hat until all other active members have served. That approach would provide more stability and continuity in the chief's seat. It would also give the presiding justice time to develop an approach to the important role. A justice could opt out of having his or her name drawn at random. This system would be entirely voluntary – but I suspect most of the junior justices would jump at the chance to preside, barring some other extenuating circumstances.
The justices could also rotate during a given term. The court is in session for approximately nine months out of the year from October through June. There is usually one sitting per month. Each of the nine justices could serve during one sitting as presiding officer for oral argument and for the conference. In fairness, the court usually does not hold oral arguments in May and June (although they should.) But I have little doubt that this could be worked out.
Perhaps most critically, my approach would allow different members of the court to assign majority opinions. Here, more justices would be able to direct the trajectory of majority opinions. And since the selection would be random, justices could not game which opinions they can assign. Moreover, the ordering would not be announced to the public in advance. This information might allow litigators to time cert petitions and emergency applications to shop for particular presiding officers. (On the lower courts, savvy litigators know when certain judges are sitting on emergency motion panels and can time their cases accordingly.)
Again, this is yet another reform that would change the power structures on the Court without affecting its composition or jurisdiction. All of these proposals for term limits and expansion only purport to treat the symptoms and not the root cause.
Fifth Circuit Rejects Energy Department Direct-to-Final Rule on Home Appliances
While the decision rejects a Biden Administration rule, it could cause trouble for the Trump Administration's efforts to avoid notice-and-comment rulemaking too.
Last week, a panel of the U.S. Court of Appeals for the Fifth Circuit granted a petition for review of a Biden Administration Department of Energy direct-to-final rule limiting the energy use of stoves and ovens.
Judge Oldham wrote for the panel in Mississippi v. Department of Energy, joined by Judge Ho. Judge Haynes concurred in the judgment. The intro of Judge Oldham's opinion, makes clear he does not like the rules at issue.
The Biden Administration proposed numerous regulations to make home appliances more expensive and less useful. See, e.g., Louisiana v. DOE, 90 F.4th 461 (5th Cir. 2024). As part of that effort, one official even proposed banning gas stoves. See Ari Natter, US Safety Agency to Consider Ban on Gas Stoves Amid Health Fears, Bloomberg (Jan. 9, 2023), https://perma.cc/7E2V-DFN5 (quoting statement of Consumer Product Safety Commission official Richard Trumpka, Jr.). These efforts generated significant controversy and public backlash.
Rather than confront that controversy, the previous Administration attempted to dodge it. In this case, the Department of Energy created new regulations on home cooking appliances, including gas stoves, through a "Direct Final Rule." What does that mean? It means the Biden Administration promulgated a rule without giving the public advance notice or the opportunity to comment on it. Petitioners are several States that are aggrieved by the Direct Final Rule. Their objections are well taken, so we grant the petition for review.
Although the Energy Policy Conservation Act provides for the promulgation of direct-to-final rules, so as to facilitate the quick adoption of consensus-based or otherwise non-controversial standards, the panel concluded the Department overstepped here, and had sought to use the DFR process to evade engaging with substantive objections to the new rules. Judge Oldham writes:
The previous administration's gas-stove measures were among its most controversial energy proposals. The idea that all that controversy could be elided using the DFR—a mechanism designed for consensus rulemaking—is untenable. And it's all the more untenable in the face of the EPCA's comment and review provisions, which the Department would have us rewrite.
Interestingly enough, the Trump Administration has also sought to evade the notice-and-comment process in some of its rulemakings, embracing an unconventional (and quite aggressive) interpretation of the "good cause" exception within the Administrative Procedure Act (APA). I discuss two examples in my forthcoming article, "Unsustainable Presidential Administration," one of which also involves the Department of Energy (repeal of the showerhead definition), as well as the OIRA memo encouraging agencies to use the "good cause" exception more aggressively. The Fifth Circuit's rationale could cause problems for such efforts, particularly if adopted by other circuits.
The East Wing and Justice Breyer's Concurrence in Van Orden v. Perry
A court-ordered demolition of a White House national security facility, broadcast to the entire world, would be a Rubicon that should not be crossed.
When I studied the First Amendment circa 2007, we struggled to reconcile two Establishment Clause cases decided on the same day. In McCreary County, the Court held that a display of the Ten Commandments posted on the wall of a courthouse was unconstitutional. And in Van Orden v. Perry, the Court held that a large stone monument of the Ten Commandments on the grounds of the Texas Capitol could remain. Justices O'Connor and Breyer cast the deciding votes in each case. In the latter decision, Justice Breyer worried what would happen if the people saw a large edifice on state property being demolished.
At the same time, to reach a contrary conclusion here, based primarily upon on the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U. S., at 717–729 (Breyer, J., dissenting).
The rule, as we learned it, is the Constitution permits taking down a piece of paper but does not permit demolishing a heavy stone monument.
This history makes me think of the pending East Wing case. According to the government, nearly 60% of the structure is already built. Let's say the Supreme Court denies the stay. What happens? Would Judge Leon force the government to leave the partially-exposed construction zone on the White House grounds indefinitely? Would he order the government to close it up in some ad hoc fashion that he decides, but which fails to provide the intended defenses to the underground facility? Would he force the government to tear down all of the above-ground structures? What would that image convey to the American people who are already concerned that the judiciary is usurping our democracy? How would our foreign adversaries, who are planning attacks on the White House, see that act?
Enjoining an executive order is an abstract act that most people cannot understand. But ordering bulldozers onto the White House property to tear down a structure is something everyone can see. Indeed, I can see a world where those bulldozers are not allowed through the gate. Judicial supremacy has its limits. A court-ordered demolition of a White House national security facility, broadcast to the entire world, would be a Rubicon that should not be crossed.
New in Civitas: Curtail the Cult of Judicial Celebrity
Another reform without changing the composition or jurisdiction of the Court.
This summer I have spent some time proposing different reform of the Supreme Court that have nothing to do with its composition or jurisdiction. As I often say, the clearest way to affect how the Justices do their job is to make the Justices do more of their own work. My latest proposal, published in Civitas, seeks the curtail the cult of judicial celebrity on the left and the right. In short, Congress should make the Supreme Court boring again.
The task is actually straightforward: make the Supreme Court Justices feel like lower court judges. I would ask and answer two questions. First, what should they do when they are not working? The same sorts of mundane activities that lower court judges engage in. There should be no special perks for being a Justice. Second, what about outside income? Justices should not profit from their jobs. Any book royalties should be donated to the Holmes Devise. Congress could increase the Justices' salaries, but they would have the same cost of living as other judges in Washington, who have far fewer perks. As we say in Texas, these steps will make sure the Justices do not get too big for their britches.
From the conclusion:
These proposals would change nothing about the Court's docket, decisions, or deliberations. But they would hopefully curtail the cult of judicial celebrity. Indeed, these proposals, more than Court packing, term limits, or jurisdiction stripping, would change how Justices understand their role in the operations of the federal government and would slowly change citizens' perceptions of their stature in the government. affect
Make Congress Legislate Again
There are better ways to encourage more regular lawmaking than abolishing the filibuster.
Congress has not engaged in regular lawmaking for some time. Does this require structural reform, such as abolishing the filibuster? Some seem to think so. I am skeptical. If Congress is reluctant to legislate, there will be difficulty cobbling together the requisite number of votes whether 51 or 60 votes are required. If there is insufficient reason to craft a legislative vehicle that can pass, it will not get passed.
Legislative quiescence is a serious problem, but it is not as if Congress never acts. Must-pass legislation gets enacted, albeit often after much consternation (and the occasional government shutdown). What I believe this illustrates is that creating stronger incentives for Congress to act, and to revisit existing laws, is fruitful path for encouraging more regular lawmaking, including the reauthorization of programmatic statutes.
Chris Walker and I explored this issue some in our paper, "Delegation and Time." I discuss it further in "Making Congress Legislate Again," my contribution to today's Civitas Outlook symposium on structural reform. From my essay:
Including expiration dates or sunsets in new legislation is one way to encourage Congress to reengage with specific policy areas more frequently. Congress can still punt when an authorization expires, such as by extending deadlines piecemeal, as is sometimes done with continuing resolutions. But there is still value in forcing legislators to acknowledge their responsibility and cast their votes.
Many existing programs already contain time-limited authorizations, even if Congress has not observed them. This is the case with most major environmental statutes, which, as noted above, have not been reauthorized (let alone significantly revised) this century.
Adding sunset provisions or expiring authorizations to new laws would be a positive change, but we need not wait for it. It is also not a cure-all, as expired authorizations matter only if they are allowed to take effect. The Congressional Budget Office regularly reports which programs have expired authorizations, ostensibly to prevent appropriations for them.
As it happens, current congressional rules may already require Congress to revisit existing programs. Current House and Senate rules already prohibit appropriating funds for unauthorized or expired federal agencies and programs. Blocking such appropriations should require no more than raising a point of order. While such objections can be overruled (and congressional leadership has ways of making procedural objections difficult), raising them would be a start.
Many think the answer to Congress's inability or unwillingness to legislate requires rewriting the rules or broader structural reforms. A better start might simply be enforcing the rules we already have.
The full symposium, with contributions from Steven Hayward, Josh Blackman, John Yoo, and William Voegeli is here.
"Comma Mischief from the Florida District Court of Appeal"
Blog readers know that I'm interested in legal language, and that includes punctuation (see, e.g., "Punctuation Matters. At the Heart of This Case Is the Placement of a Comma" and "A, B or C" vs. "A, B, or C"—the serial comma and the law). There was an interesting Florida case on punctuation and the law a few weeks ago, and I thought I'd pass along an item about it from Ken Adams, author of A Manual of Style for Contract Drafting (5th ed. 2023), published by the American Bar Association:
Comma Mischief from the Florida District Court of Appeal
A pervasive problem of our judicial system is poor textual interpretation. A recent example is the decision of the Florida District Court of Appeal in Treasure Coast Classical Academy, Inc. v. Optima Foundation, Inc., No. 4D2025-1577, 2026 WL 2104076 (Fla. Dist. Ct. App. July 22, 2026).
The Opinion
Optima provided services to Treasure Coast Classical Academy, Inc. The academy sued Optima in the Nineteenth Judicial Circuit Court, Martin County, Florida. Optima moved to dismiss the complaint for improper venue, arguing that all causes of action had to be brought exclusively in Collier County, Florida.
Here's the sentence at issue:
State Governing Law/Venue/Waiver of Jury Trial. The rights of all parties hereto shall be subject to the jurisdiction of and be construed according to the laws of the State of Florida, with venue in Collier County, Florida.
