Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Modest markups, shotgun pleadings, and the Kansas Two-Step.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Read More
Have your paper critiqued by experts from all perspectives at the 2026 Firearms Law Works-in-Progress Conference
DATE: May 28-29, 2026
LOCATION: Durham, NC
ABSTRACTS DUE: February 20, 2026
The Duke Center for Firearms Law and the University of Wyoming Firearms Research Center invite applications to participate in the seventh annual Firearms Law Works-in-Progress Conference. The conference will be held at Duke Law School in Durham, NC, on May 28 and 29, 2026. We ask all those interested in presenting a paper at the conference to submit an abstract by Friday, February 20, 2026.
At the Firearms WIP Conference, scholars and practitioners present and discuss works-in-progress related to firearms law and policy broadly defined, including Second Amendment history and doctrine, federal and state gun regulation, and the intersection between firearms law and other areas of law. The Firearms WIP Conference is the only legal works-in-progress event specifically focused on firearms law and policy. Summaries of past conferences, including paper titles and attendees, are available here: 2019, 2020, 2021, 2022, 2023, 2024, and 2025.
Conference sessions are lively discussions among authors, discussants, and participants. Each accepted paper is assigned to a panel of three to four scholars with a moderator who will summarize the papers and then lead a discussion. Sessions run from Thursday afternoon through Friday afternoon. There will be a casual dinner and social event Thursday evening following the afternoon session. All conference participants are expected to read the papers in advance and to attend the entire conference.
We accept papers on a wide array of topics related to firearms, including from scholars who are new to the field and interested in exploring the interaction between firearms law and other disciplines. Although participation at the conference is by invitation only, we welcome paper proposals from scholars and practitioners all over the world. Please feel free to share this call for submissions widely.
Submission Details
We expect that participants' home institutions will cover travel expenses to the extent possible. However, the Duke CFL and the Wyoming FRC are able to cover some costs of lodging and travel expenses for authors who would not otherwise be able to attend. This support is intended to encourage submissions from junior faculty, especially those who are new to the field.
There's been some debate recently about whether laws banning carrying weapons at political protests and demonstrations (either by the protests and demonstrators or others) are consistent with the Second Amendment. I thought I'd pass along what federal appellate judge have said about this recently.
[1.] From the Fourth Circuit just ten days ago in Kipke v. Moore, in a majority opinion by Judge Roger Gregory, joined by Chief Judge Albert Diaz:
Under Maryland law, a "person may not have a firearm in the person's possession or on or about the person at a demonstration in a public place or in a vehicle that is within 1,000 feet of a demonstration in a public place after: (i) the person has been advised by a law enforcement officer that a demonstration is occurring at the public place; and (ii) the person has been ordered by the law enforcement officer to leave the area of the demonstration until the person disposes of the firearm." … [W]e hold that Maryland's prohibition on carrying guns near public demonstrations is consistent with our national historical tradition of promoting peaceful assemblies, particularly given the interaction between the rights the First and Second Amendments preserve.
To start, the First Amendment protects "the right of the people peaceably to assemble." By including the "peaceably" caveat, the Founders made clear that not all assemblies are lawful, and that the government may constitutionally disperse assemblies that threaten the public peace. As the Supreme Court explained, "violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of 'advocacy.'" So, we must read the right to bear arms in conjunction with the First Amendment's protection of the right to peaceably assemble. Though the right to bear arms surely is "not a second-class right," neither are the rights to free speech and free assembly.
Second, our history, both before and after the ratification of the Second Amendment, demonstrates a long-standing tradition of government regulating permissible assembles, including regulating arms at public assemblies. Beginning with the reign of King Edward IV in the fifteenth century, and subject to only minor alterations, "[t]he riotous assembling of twelve persons, or more, and not dispersing upon proclamation," was a criminal offense under English law up until the Revolution. As Blackstone concluded, "our ancient law … seems pretty well to have guarded against any violent breach of the public peace; especially as any riotous assembly on a public or general account …." The American colonies built on this tradition, enacting unlawful assembly statutes that ordered dispersal of assemblies, particularly where individuals were armed with weapons.
From Alaska Court of Appeals Judge Timothy Terrell's concurrence Wednesday in Ivyories v. State:
I write separately to set out my view that the Second Amendment does not permit persons convicted of nonviolent felonies to be deprived of their gun rights after they have served their sentence and any post-release supervision period….
A majority of federal circuit courts have continued to rely on the language from the United States Supreme Court in Heller and succeeding cases and have concluded that statutes prohibiting felons from possessing firearms do not violate the Second Amendment. But the Third Circuit has rejected this view and concluded that persons convicted of nonviolent felonies should not necessarily permanently lose their gun rights. Other circuits have leaned toward that approach or left open the issue of whether some felons (particularly nonviolent felons) may have a viable as-applied challenge to felon-in-possession bans.
I agree with the Third Circuit and write separately to add my voice to the list of judges and courts who have concluded that felon-in-possession bans are unconstitutional as applied to those persons convicted of nonviolent felonies. I recognize that, in Alaska, this issue is currently governed by the Alaska Supreme Court's decision in Farmer v. State. Accordingly, I will not analyze the underlying legal issues in detail. However, cognizant of the possibility that the Alaska Supreme Court may choose to revisit its holding in Farmer, I note below the cases pertinent to the key issues and lay out other jurists' observations that are helpful in thinking about the scope of the Second Amendment.
A short excerpt from Tuesday's long decision by Mississippi Court of Appeals Judge Anthony Lawrence in Price v. Hinds County School Dist.:
Toby Price, a licensed educator and assistant principal, read to the Gary Road Elementary School second-grade class on "Read Across America Day." Since the educator who was scheduled to read to the class did not appear on a Zoom session, Price—at the last minute—stepped in to read and selected a book entitled "I Need a New Butt!" from his personal collection. The picture book was intended to be humorous and depicted a child searching for a "new butt." As such, the book contained references to and illustrations of "butts," "butt cracks," and "farts." {The child imagines a litany of possibilities for his "new butt," such as "a butt that's armor-plated[,]" "a bumper butt made of chrome[,]" "[a] rocket butt[,]" an "arty-farty butt[,]" and "[a] robo-butt[.]" The book concludes with the child finding his father bending over to repair a sink only to discover his father's butt also had a crack in it.}
Following the reading, a student began repeating the word "butt" incessantly. Price was placed on administrative leave that day and fired two days later.
The court concluded that the firing decision "was arbitrary, capricious, and lacked substantial evidence," and was thus invalid under state law:
The Board's decision was detailed in its reasoning as follows: (1) the book at issue "contained pictures of child and adult nudity and inappropriate activities"; (2) Price previously "acknowledged the problematic nature" of such books; (3) the book caused a "negative, immediate impact"; (4) Price violated the Mississippi Code of Ethics; and (5) Price was not a credible witness….
This Court notes that "[t]he superintendent of a school district may dismiss a licensed school employee for good cause." However, "in a hearing concerning a dismissal, the burden is on the superintendent to show that a principal or teacher has been dismissed for good cause." …
The article describes the suit, and explains why it deserves to prevail.
Earlier today, Lawfare published my article "Minnesota's Compelling 10th Amendment Case Against Trump's ICE Surge." Here is an excerpt:
The federal government's brutal and often illegal use of Immigration and Customs Enforcement (ICE) personnel and other federal agents in Minnesota has generated extensive litigation. On Jan. 12, one particularly crucial case was filed by the state of Minnesota and the cities of Minneapolis and St. Paul, arguing that the federal Metro Surge operation—deploying thousands of ICE and other federal agents to the Twin Cities—violates the 10th Amendment. That amendment states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In a series of decisions supported primarily by conservative justices, such as Printz v. United States (1997) (written by conservative icon Justice Antonin Scalia), the Supreme Court has held that the federal government cannot "commandeer" state and local officials to do the federal government's bidding, or to help enforce federal laws.
Control over state and local government personnel is one of the powers reserved to the states by the 10th Amendment. In addition, as legal scholar Michael Rappaport has shown, the original meaning of the Constitution indicates that such control is a basic element of the sovereignty inherent in being a state in the first place….
Part of the purpose of the federal "surge" is to coerce Minnesota jurisdictions into giving up their sanctuary policies and using their resources to assist federal deportation efforts. As federal District Judge Katherine Menendez noted in a hearing in the case on Jan. 26, Trump administration officials have repeatedly indicated that this is one of their objectives. Attorney General Pam Bondi suggested as much in a Jan. 24 letter to Minnesota Gov. Tim Walz. A Jan. 16 White House statement explicitly indicates that Minnesota's "sanctuary defiance" is "responsibl[e] for the enhanced enforcement operations in Minnesota." A recent statement by Trump "border czar" Tom Homan indicates that the administration will not withdraw immigration enforcement officers from Minnesota unless state and local governments curb sanctuary policies and extend "cooperation" to federal immigration enforcers….
The Minnesota case is not exactly analogous to previous anti-commandeering rulings by federal courts. But that is in part because it represents an even more blatant violation of the 10th Amendment. In Printz and other cases, such as New York v. United States (1992) and Murphy v. NCAA, the Supreme Court struck down congressional legislation requiring states to help enforce various types of federal laws, or to enact legislation of their own. In a series of decisions during the first Trump administration, and continuing in the second, numerous lower federal courts ruled that the president cannot order states to aid in immigration enforcement actions, and cannot withhold federal funds from sanctuary jurisdictions in cases where doing so would be "coercive" or Congress had not authorized immigration-related conditions on recipients.
The administration's current actions are more egregious than those struck down in previous anti-commandeering rulings. Here, there is no congressional authorization for federal coercion of states; the president is acting on his own. And the direct use of force is even more blatantly coercive than illegally withholding federal grants. If the federal government cannot coerce states by enacting commandeering laws and imposing grant conditions, surely it cannot do so at the literal point of a gun….
If allowed to stand by the courts, the federal action in Minnesota would set an extremely dangerous precedent. It could easily be used against a variety of state policies, including those of conservative "gun sanctuaries"—such as Montana and Missouri—which restrict state and local assistance efforts to enforce federal gun control laws. A future Democratic administration could send thousands of armed agents to harass gun owners and disrupt state and local government operations until gun sanctuary jurisdictions drop their restrictions.
Indeed, the Minnesota operation has already threatened gun rights traditionally prized by conservatives. Administration officials have defended the killing of Alex Pretti on the grounds that he was carrying a gun at the time—even though he had a legal permit to do so, never drew the weapon, and federal agents took it from him before they shot him.
"The Court's defense of political speech remains essential to American democracy five decades later."
The final item in an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Bradley A. Smith, the Chairman and Founder of the Institute for Free Speech and the former Chairman of the Federal Election Commission:
Americans hate the combination of money and politics. Of that there can be no doubt. Every public opinion poll taken on the topic reflects that reality, as do the daily conversations I have about politics.
Substantial majorities of Americans see political contributions and spending as a source of corruption, believing that officeholders routinely sell votes or other official action in exchange for campaign contributions. It matters naught that there is near-unanimous agreement among political scientists who have studied the issue that campaign contributions do little or nothing to affect how a politician votes once in office.
Further, when wealthy Americans deploy their financial assets to argue for their preferred policies and candidates, it strikes many Americans as an affront to political equality. Few people can comfortably afford to spend $1,000 in an election campaign, let alone six, seven, or eight figures. Why should being rich give someone more political influence? That a big-spending political donor might empower millions of Americans who share the donor's views but otherwise would not be heard, is rarely considered.
Prof. Josh Braver questions the conventional wisdom on this issue.
Donald Trump has often threatened to invoke the Insurrection Act as a tool for using the military against his domestic opponents. Many observers believe this became more likely after the Supreme Court ruled against his efforts to federalize state National Guard units and use them for domestic law enforcement under a different statute.
The conventional wisdom on the Insurrection Act is that the president is entitled to broad judicial deference if he invokes it. In an important new article, Prof. Josh Braver (University of Wisconsin) argues that the conventional wisdom is wrong. Here is the abstract:
This article argues that courts do not owe substantial deference when the President seeks to deploy the military domestically under three of the Insurrection Act's four trigger provisions. The exception is Section 252, which authorizes deployment "[w]henever the President considers" that has become "impracticable to enforce the laws . . . by the ordinary course of judicial proceedings." This Article defends that claim through analysis of the Act's text, statutory history, and legislative history.
The core argument turns on a single word of the Insurrection Act: "considers." When, and only when, a trigger is keyed to what the President "considers," courts owe deference. Two negative-implication arguments clarify and strengthen that inference. First, Congress used "considers" in Section 252's judicial-proceedings trigger, but withheld comparable language from every other trigger, signaling that Section 252 is the sole grant of trigger deference. The statutory and legislative history confirm that this was no accident: Section 252's "considers" traces to an 1861 amendment that added discretionary language to the judicial-proceedings trigger. This language was widely understood as necessary to resolve controversy over whether the President could deploy force against the seceding States at the civil war's outset.
Second, where Congress uses "considers" elsewhere in the Act, it does so to confer deference over the choice and scale of forces ("means deference"), not over whether the trigger is satisfied. Using 'considers' for means while omitting it from triggers underscores that Sections 251 and 253 withhold trigger deference by design.
The withholding of trigger deference from Section 253 in particular has a structural logic: Section 253 is the only trigger provision that lacks any comparable ex ante check by another institution, making judicial scrutiny especially necessary ex post. And because Section 253(2) is the Act's broadest and most abuse-prone trigger, that judicial check is especially crucial.
While Josh concludes that more deference is due under Section 252 than the other parts of the statute, even Section 252 deference has important limitations:
Two points should reassure. First, Section 252 presupposes an actual judicial proceeding: an injunction, a warrant, an order, or some comparable process to be enforced. And mere resistance is not enough; it must also be "impracticable to enforce the laws" through that process. The only exception is a genuinely collapsed judiciary—courts shuttered, process unavailable— an extraordinary condition that cannot be conjured by rhetoric alone.
Second, "substantial deference" is not abdication, especially given the trigger's demanding terms. In 2025, two district judges confronting the Chicago and Portland National Guard deployments under a neighboring statute with analogous language applied a deferential framework yet still ruled against the Administration. The Ninth Circuit initially reversed in the Portland litigation on the ground that the district court's analysis was not deferential enough; but it later granted rehearing en banc, and it might well have applied deference and still struck down the deployment. The Supreme
Court intervened first, effectively mooting the dispute before the Ninth Circuit could rule.
In a recent Dispatch article (non-paywalled version here), I made a more general case that courts should not defer to executive invocations of emergency powers. Rather, the government should have to prove that the emergency that supposedly justifies their use actually exists. This is consistent with Josh's argument that, under the Insurrection Act, there is no deference on "triggers" for the use of the act, though - if the "trigger" is present - there could be some deference with regard to the issue of whether the use of the military is a necessary response. See also Part V of my new article, "Immigration is Not Invasion," which argues against deferring to executive claims that an invasion has occurred, thereby justifying the use of various sweeping emergency powers.
Josh Braver is also my coauthor on "The Constitutional Case Against Exclusionary Zoning," Texas Law Review (2024). We have very different political ideologies and views on legal theory, but nonetheless agree on a great many things!
1/30/1939: Justice Felix Frankfurter takes oath.
What’s on your mind?
A new draft article, now posted.
I recently posted to SSRN a new draft article, The Moving Property Problem in Fourth Amendment Law, forthcoming in the Virginia Law Review. Here's the abstract:
The Fourth Amendment's ban on unreasonable searches and seizures has been interpreted by the Supreme Court to require many location-specific rules. There are different rules for searching homes, cars, spaces near people, and at the border. The Fourth Amendment's place-based rules create a puzzle: What rules apply when property is moved from one place to another? Can the police expand their search powers by grabbing a person's property and moving it to a new place where protections are weaker? And can suspects impede investigations by moving their property to new places where protections are stronger?
This is the moving property problem of Fourth Amendment law. This Article identifies the moving property problem, shows that it is a recurring issue, and offers a framework for solving it. It links a range of cases that have not been linked before, and it shows how courts have often divided when faced with facts involving moving property. It then develops a two-part framework for how courts should solve moving property cases. First, courts should ask whether the movement is consistent with the rationales for the place-based rules of the starting and ending places. Second, courts should ask whether the movement itself was lawful, which should depend on whether the movement violated the Fourth Amendment or was the result of government coercion.
Comments welcome, as always.
"the Court's previous comments about unnecessarily contentious pleadings that waste the Court's time and resources."
Words to note, from Judge Amy Berman Jackson today, in Egolf v. Georgetown University:
MINUTE ORDER. Apparently, the parties either have not read, or they have read and do not intend to be mindful of, the Court's previous comments about unnecessarily contentious pleadings that waste the Court's time and resources. See Jan. 12, 2026 Order 32. Defendant Georgetown University's motion to strike 36 plaintiff's reply brief is DENIED, and plaintiff's motion for a short extension of time to file a reply which has already been docketed 35 is GRANTED. The parties should take note that with the reply, the motion to dismiss has been fully briefed, and it is under advisement. Nothing further is needed. And once plaintiff files a timely reply, if any, to the opposition 37 to his motion for reconsideration 34, there will be nothing else to be filed with respect to that or any other matter. No sur-replies will be permitted. SO ORDERED.
And from the cited Order at ECF No. 32:
Finally, given the nature, number, and tone of the pleadings to date, the Court finds it necessary to advise the parties as follows: 1) this case is going to proceed in an orderly manner; 2) pleadings informing the Court that other pleadings will be filed in the future are entirely unnecessary; and 3) caustic pleadings that include personal attacks on other parties or their counsel tend to obscure, rather than advance, legitimate factual and legal arguments, and they should be avoided.
A very interesting post on his Free Systems substack; I'm not sure what to think of the subject, but it struck me as much worth passing along. An excerpt:
I'm a political economy professor who studies constitutional design: how societies create structures that constrain their most powerful actors, and what happens when those structures fail. I've also spent years working on how to build democratic accountability into technological systems—at Meta, where I've helped to design both crowdsourced and expert-driven oversight for content moderation affecting billions, and in crypto, where I've studied how decentralized protocols can create constraints that bind even founders.
AI leaders have long been worried about the same problem: constraining their own power. It animated Elon Musk's midnight emails to Sam Altman in 2016. It dominated Greg Brockman's and Ilya Sutskever's 2017 memo to Musk, where they urged against a structure for OpenAI that would allow Musk to "become a dictator if you chose to."
Fast forward to 2026 and AI's capabilities are reaching an astonishing inflection point, with the industry now invoking the language of constitutions in a much more urgent and public way. "Humanity is about to be handed almost unimaginable power," Dario Amodei wrote this week, "and it is deeply unclear whether our social, political, and technological systems possess the maturity to wield it."
Ideas on how to deal with this concentration of power have often seemed uninspired—a global pause in AI development the industry knows will never happen, a lawsuit to clip at the heels of OpenAI for its changing governance structure.
Claude's revised constitution, published last week, offers perhaps our most robust insight into how a major tech company is wrestling with the prospect of effectively steering its wildly superhuman systems. What to make of it?
"The landmark decision recognized that effective political speech requires the ability to pool resources and communicate at scale."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Allen J. Dickerson is a partner at BakerHostetler and a former commissioner and chairman of the Federal Election Commission:
Buckley v. Valeo ranks among the most consequential articulations of American liberty, and yet almost no one reads it in full. It is a famously long decision, written on an emergency timeline, addressing technical material. It lacks the gripping rhetoric of, say, Justice Robert Jackson's great First Amendment opinions—you will find no paeans to the "fixed stars in our constitutional constellation" here.
But, for all its complexity and compromise, Buckley stood fast on a key point: the Constitution protects effective political organization. The First Amendment exists "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."
Free speech is central to individual dignity. But it is also the foundation of democratic self-government. We have Buckley to thank for the enduring influence of that idea.
* * *
For speech to be considered effective, it must be able to change government policy and affect election outcomes. Effective speech is inconvenient to those in power because it can make them adjust their plans or risk being fired. Even in the aftermath of Watergate, the Court recognized that campaign finance laws could easily be used to limit speech, handicap civil society, and entrench government power.
The Buckley litigation showed, first and foremost, that Congress's proposed remedies were shockingly beneficial to incumbent members of Congress and their entrenched allies. A central claim in the litigation was, in essence, that Congress had used the Watergate crisis as an opportunity to pass amendments to the Federal Election Campaign Act (FECA) that insulated elected officials from criticism and opposition.
1/29/1923: Justice Edward Sanford takes oath.
What’s on your mind?
"This is an extremely high level of incompetence by the entire anti-Semitism-industrial complex, some of whose representatives are sitting right here in this room."
Yesterday, my Civitas Outlook column discussed Anti-Semitism and Anti-Christian Zionism on the right. The piece led off with Kevin Roberts's infamous defense of Tucker Carlson, but I expanded the focus to two other prominent figures: Vice President J.D. Vance and Yoram Hazony.
To this day, Kevin Roberts's video has not been taken down. And I doubt he disagrees with the underlying message. What he said has become standard fare in some corners of the right. AtTurning Point's AmericaFest, Vice President J.D. Vance rejected "endless, self-defeating purity tests" and would not "bring a list of conservatives to denounce or to deplatform." Making the point more plainly was Yoram Hazony, one of the founders of the National Conservatism movement. Hazonydeclared, "nobody ever said that to be a good Natcon you have to love Jews." Hazony, an Orthodox Jew, is unquestionably not himself an antisemite, but reads from the same gospel as Roberts and Vance: antisemites, Hitler revisionists, and Holocaust deniers are welcome under this tent. Jews, Christian Zionists, and other classical conservatives can leave if they are uncomfortable. (In August 2025, I spoke at NatCon with some hesitation; I have come to regret my attendance at that conference.)
My column was right on time. Yesterday, Yoram Hazony delivered a keynote address at the international conference on anti-semitism in Jerusalem. (I attended that conference last year.) Yoram has posted his speech to Substack. It is long, but I encourage you to read all of it. Say what you will about Yoram--and I have a lot to say--but he is a clear thinker who tells you exactly what is on his mind. He hides nothing from the audience.
Yoram divides conservatism into three camps. Yoram argues that the pro-zionist "liberal" wing of the Republican party, led by Ted Cruz, has at most 25% of support of the movement. The alt-right, which has anti-semites in it, has maybe 10%. The remaining 65% is the nationalist wing. Yoram says, the nationalist group is up for grabs. It can be persuaded one way or the other. But the liberal wing, Yoram explains, has not done its job. Yoram argues that attempts to cancel Tucker failed because all charges of anti-semitism have not stuck. He also points out that President Trump hosted Tucker at the White House, even after telling the New York Times that anti-semites have no place in the movement.
One line, in particular, has garnered much attention. Yoram says that no one can create a "15-minute explainer video" to demonstrate why Tucker is in fact an anti-semite, because no such content exists. He then levels this charge:
This is an extremely high level of incompetence by the entire anti-Semitism-industrial complex, some of whose representatives are sitting right here in this room. Maybe some of you think you were persuasively "fighting anti-Semitism" over the last six months. But the unfortunate truth is that you weren't.
This line led to a blistering response from Tablet Magazine, a popular Jewish publication:
Tucker Carlson could goose-step down Pennsylvania Avenue butt-naked with a swastika carved into his forehead and it would be the fault of "the anti-semitism industrial complex" for not making the case "clear enough" to "Republican nationalists."
I understand entirely the point Yoram is making. Indeed, the response from Tablet feeds into his narrative that this internecine fight is likely to alienate undecided nationalists, and push them to the alt-right camp. Yoram would simply just allow these groups to exist to ensure that Jews keep a seat at the table. This was exactly the point he made at NatCon earlier this year. The key line was:
"Nobody ever said that to be a good natcon you have to love Israel. Nobody ever said that to be a good natcon you have to love Jews. Go take a look at our statement of principles. It's not a requirement."
And Yoram meant it. Indeed, his remarks presaged the entire Fuentes-Tucker-Roberts debacle. Like I said, Yoram deserves some credit for stating the issue so plainly.
Now, here comes my opinion. I think Yoram is so committed to the prospect of a successful nationalist movement in America and elsewhere that he is blinding himself to the real risks that Jews, in particular, face. He says we are not in 1930s Germany:
For example, most nationalist Republicans don't think America today is anything like 1930s Germany. They don't see any Nazi party in America poised on the threshold of victory.
On that point, we agree. The comparisons between Trump and Hitler are nauseating at this point. (I'm old enough to remember when George W. Bush was compared to Hitler.) But the Third Reich did not form overnight. Nor was Hitler the first to seek to destroy the Jews. Six thousand years of history teaches the same lesson again and again and again. Anti-semitism changes form and eventually leads to persecution, exclusion, and termination. We should not be so blind to think it cannot happen again. Yoram goes a step further, and asks what Mordechai and Esther, the heroes of the holiday of Purim, would do. I suppose Esther would have gone on Haman's podcast and baked him some hamantashen. As I wrote yesterday the main point of Never again is the second word: again.
Yoram might respond I am being too sensitive or paranoid. He might even say I am being counterproductive, because now the people who might have been inclined to listen to us will no longer do so. On this point, once again, I agree. Speaking out against the anti-semites on the right very well could alienate nationalists, who might become sympathetic to the anti-semites. This entire fight might seem foreign and counter-productive to people who do not really care about this issue. And there is a distinct risk of being excluded from the tent. I am well aware of this risk, and thought about it at some length before I resigned from Heritage. I am not so foolish to believe there is no specter of retaliation--if not now, at some point in the future. Indeed, the way this sort of payback usually work is that you never even find out about it. As the saying goes, revenge is a dish best served cold. (Those who keep charging me with auditioning should really rethink their arguments.)
If Jews are nudged from the conservative movement, where do we go? The Jewish people have been in a political wilderness before, and it will likely happen again. There is certainly no home on the political left, which has embraced the worst strands of anti-semitism and cultural Marxism. At present there is a home on the right, but that domicile may be fleeting.
At present, I think Vice President J.D. Vance is trying to stay out of the fray, one way or another. It was noted that his tweet about Holocaust Remembrance Day failed to mention Jews. At some point, the presumptive 2028 nominee will have to take a stand.
From today's order granting rehearing en banc in Hussey v. City of Cambridge:
The majority panel opinion relied on First Circuit precedent for the proposition that "speech commenting on public 'issues in a mocking, derogatory, and disparaging manner' is accorded less weight in the [Pickering] balancing test." Hussey v. City of Cambridge, No. 24-1279, Slip Op. (Aug. 15, 2025), at 16 (quoting MacRae v. Mattos, 106 F.4th 122, 137 (1st Cir. 2024), and also citing Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) ("Speech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balance.")).
- Is this precedent consistent with the Supreme Court's First Amendment jurisprudence, including but not limited to Rankin v. McPherson, 483 U.S. 378 (1987), and Connick v. [Myers], 461 U.S. 138 (1983)? Please address the propriety of giving less weight to "mocking, derogatory, and disparaging" speech on matters of public concern, and—in doing so—please discuss how the consideration of "manner, time, and place" in the Pickering balance bears on that question. Finally, please address whether the propriety of giving less weight to "mocking, derogatory, and disparaging" speech on matters of public concern depends on whether the speech occurred within the workplace or outside the workplace.
- Is there a more suitable approach, also consistent with First Amendment jurisprudence, for balancing the First Amendment right of a public employee to speak on a matter of public concern against the needs of the public employer?
- How would any proposed change in approach affect the analysis and outcome in this case? Please also discuss whether, and how, the Pickering balancing would differ under such an approach for speech by a public employee holding a different employment position or rank than appellant Hussey.
- If the proper Pickering inquiry considers whether the speech at issue disrupted the workplace without reducing the employee's interest in the speech, is it necessary to remand the case to the District Court? Or did the District Court already make a finding on that score?
Here's an excerpt from the panel majority, by Senior Judge Kermit Lipez, joined by Judge Gustavo Gelpí; the controversy was about police officer Hussey being disciplined for posting the Facebook post excerpted at the start of this post:
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