The Volokh Conspiracy

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

From J.W. v. T.S., decided Tuesday by Massachusetts Appeals Court Judges Justices Maureen Walsh, Robert Toone & Gloria Tan. The plaintiff appears to be Julia Prange Wallerce, who had been on the Winthrop Planning Board and the Winthrop Transportation Advisory Committee and had been Assistant Director of Transportation at the Metropolitan Area Planning Council, and the defendant appears to be Todd Sacco, who had run for the Winthrop City Council in 2023:

What began as friendly social media conversations about local politics between two people from Winthrop devolved into a situation in which the plaintiff felt targeted by the defendant's comments in his social media posts, private messages, and text messages. On January 18, 2024, the plaintiff applied for a harassment prevention order (c. 258E order), pursuant to G. L. c. 258E, after her requests that the defendant stop communicating with her went ignored….

To obtain a harassment prevention order, a plaintiff must demonstrate "harassment," which the statute defines in relevant part as "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." In reviewing the issuance of a harassment prevention order, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences," that the defendant committed three or more qualifying acts of harassment aimed at a specific person…. The plaintiff bears the burden of establishing that the three acts were "maliciously intended," defined by the statute as being "characterized by cruelty, hostility, or revenge."

"The definition of 'harassment' in c. 258E was crafted by the Legislature to 'exclude constitutionally protected speech,' … and to limit the categories of constitutionally unprotected speech that may qualify as 'harassment' to two: 'fighting words' and 'true threats.'" True threats have been defined as "words or actions that—taking into account the context in which they arise—cause the victim to fear [physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." …

The plaintiff's testimony at the evidentiary hearing, which the judge credited, included her testimony that in 2017 she and the defendant had "amicable conversations about community issues" on social media and later by text messages, e-mail messages, and telephone. However, in the following year or two, the defendant began sending her countless e-mail and text messages that contained offensive language, insulting and ridiculing her about her positions on bike lanes and transportation issues.

Politics

Show Comments (0)

From Judge Jorge Alonso (N.D. Ill.) yesterday in Doe v. Doe Defendants 1-10; note that plaintiff is represented by a partner at a midsize law firm:

Plaintiff has filed two motions before the Court. A motion 3 to proceed under pseudonym and a motion 4 for expedited discovery. Motion 3 does not contain a single citation identifying relevant legal authority that support's Plaintiff's position. And motion 4 contains just one citation to the language of Federal Rule of Civil Procedure 26(d)(1). Motion 3 and motion 4 are denied without prejudice. If Plaintiff wishes to proceed on these arguments, Plaintiff shall refile these motions by 2/11/26 with proper citations that support's Plaintiff's position.

For a few uncontroversial motions, one can sometimes get away without citations. (That's especially so if the other side has appeared and consents to the motion.) But for motions like this, that's generally not enough, as the judge's order reflects.

Politics

Show Comments (3)

2/6/1858: Justice Mahlon Pitney's birthday.

Show Comments (140)

On Tuesday, I wrote about how the New York Times covers the Supreme Court. Jodi Kantor boasted that "I just want them to know we're watching them." And they mean it. Journalists traveled across the globe to figure out where Justices Thomas and Alito spend their vacations. Indeed, they even interviewed their neighbors! No stone was left unturned, no flag left unfurled.

My post suggested that this sort of scrutiny should be applied to both sides of the spectrum. I wrote:

Speaking of balance, I'd like to know how Justice Jackson reacted to all of the anti-ICE statements during the Grammy's. Remember how closely Justice Alito was scrutinized after the 2010 State of the Union address? An MSNBC reporter talked to Judge Emil Bove after the President's rally in the Poconos. Certainly someone checked in with KBJ on this point, right?

Four days later, what has the mainstream media done? Bupkis. As best as I can tell, we only have unsourced reports. The New York Post reports:

But she should have stayed home rather than laughing and clapping in the audience with a bunch of virtue-signaling luvvies ranting "F–k ICE" every time they got on stage.

Fox News picked up that line in a piece titled Supreme Court
Blackburn demands investigation into Justice Jackson over Grammy appearance applauding anti-ICE rhetoric.

But Senator Blackburn's letter to Chief Justice Roberts doesn't state that KBJ was applauding or clapping or laughing. Rather, the letter focuses on the "ethical questions raised by her attendance at such a highly politicized event." Blackburn calls on Chief Justice Roberts to "conduct a thorough investigation into Justice Jackson's attendance at this event."

I think there are two separate issues here. First, did Jackson make a mistake merely by attending? In other words, should she have known this event would become a partisan rally. (It seems Jackson was already in town for events at Pepperdine in sunny Malibu on the Friday before the Grammy's.) I think any reasonable person could have predicted what would happen when elite musicians gather to celebrate themselves. When Justice Jackson received concert tickets from Beyonce, the Supreme Court PIO actually put out a statement saying "Justice Jackson is 'Crazy in Love' with Beyoncé's music. Who isn't?" Not quite. According to a 2018 poll, Beyonce was the "most politically divisive celebrity," topping both Sean Hannity and Rush Limbaugh. (This figure is measured by the spread in net favorability spread between Republicans and Democrats.) It is impossible for sanctimonious artists to gather without attacking Republicans. Anyone remember the Dixie Chicks?

For a more recent example, look no further than the 2025 Grammy's, which occurred shortly after President Trump's inauguration. The event was replete with partisan statements. Don't take my word for it. Check the Buzzfeed listicle titled, "Here Are All The Times Celebrities Spoke Out About The Trump Administration And Politics During The Grammys."

Let's assume that Justice Jackson was woefully unaware of what sort of partisan event the Grammy's would be. (How, I cannot fathom.) Once she attended, saw all the anti-ICE pins, and realized it was so partisan, she should have excused herself and left the room. (I have been to events before where judges leave the room at particular juncture when the discussion takes a turn for the worse.) But it does not appear that she left.

Judge Emil Bove was slammed for going to a speech by the President, which was derided as just a partisan rally. Would anyone think the Grammy's would be any different--especially in the wake of the situation in Minnesota? Here, I quote from Fix the Court's complaint against Judge Bove:

But last night's event in Pennsylvania — prominent conservative voices are calling it a "rally," so that's what I will call it here — was a far cry from the State of the Union or a state dinner for its abject partisanship. It should have been obvious to Judge Bove, either at the start of the rally or fairly close to it, that this was a highly charged, highly political event that no federal judge should have been within shouting distance of. . . . There are no reports that Judge Bove vacated his seat after hearing any of these injudicious comments. The Code of Conduct for U.S. Judges is fairly clear here. Canon 2 states that a judge "should avoid impropriety and the appearance of impropriety in all activities." Attending a Trump event — and not leaving when it became clear that the speech was, in fact, a partisan rally — violates this canon.

This letter would apply equally to Justice Jackson.

There is a second issue: did Jackson actually laugh and clap, or did she sit stoically? Chief Justice Roberts described the appropriate pose during the State of the Union "pep rally" is sitting like a "potted plant." What is the sound of one Justice clapping? Perhaps during one of the after-parties the Justice discussed the issue? If the press can track down a German Princess that Justice Alito visited, certainly the press can interview anther royal, Queen Latifah, who was photographed with KBJ. If Jackson did show some reaction, then we are beyond the appearance of impropriety--there is an actual evidence of bias. KBJ would have to recuse, at a minimum, from immigration-related cases. Then again, RBG called Donald Trump a "faker" and worse, but never stepped aside from a single case.

What next? There were thousands of people in attendance at the Grammy's. And I'm sure a camera was fixed on her at all times. Certainly someone knows something about how she reacted to the anti-ICE remarks, right? Certainly there is some footage that might answer the question, right? Unsurprisingly, the liberal artists at this event would have no interest in getting KBJ in trouble, so they will not be of help.

How can we find out what happened? Senator Blackburn asks for an investigation:

To that end, in the interest of a fair-minded, impartial, and independent federal judiciary, I urge you to initiate an investigation into Justice Jackson's attendance at this event and if her participation in any way would require recusal from matters that will come before the Court.

The Supreme Court is not subject to the same standard as lower court judges. But let's apply Chief Judge Sutton's test from the Boasberg complaint. Is the mere fact of Jackson's presence enough to warrant further fact-finding to determine the circumstances of her attendance? The Chief Justice could always just ask Jackson whether she thought it appropriate to leave the theater or if she expressed any reaction. The Court could also inquire of CBS whether any footage exists that may shed light on the situation. Or, is this letter so frivolous that no further fact finding is warranted? If only some enterprising journalists were actually watching the Justice at a televised awards show. New York Times, swarm.

Unlike Boasberg's remarks at the judicial conference, where he was surrounded by judges, Jackson's appearance was surrounded by elites who are unlikely to leak anything to The Federalist.

If the Chief Justice does nothing, I suspect Congress will take the matter into its own hands.

I wrote about Chief Judge Sutton's decision dismissing the judicial misconduct complaints (plural) against Judge Boasberg. Judge Sutton applied the clear and convincing evidence standard in the context of whether Judge Boasberg followed Supreme Court precedent in the airplane case.

An allegation that a judge did not follow "prevailing law or the directions of a court of appeals in [a] particular case[]," it is true, may in extreme cases constitute cognizable misconduct. In re Judicial Conduct & Disability, 517 F.3d 558, 562 (U.S. Jud. Conf. 2008). But because "the characterization of such behavior as misconduct is fraught with dangers to judicial independence," the complainant must clear a high bar to maintain such a claim. Id. The complainant "must identify clear and convincing evidence of willfulness," which is to say "clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law." Id. The complaint does not meet this standard.

Sutton cites a 2008 opinion by the Judicial Conference of the United States Committee on Judicial Conduct and Disability, which addressed this issue in the context of a judge disregarding legal standards. (I wrote about this opinion in this post.)

We agree that a judge's pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law. In re Memorandum of Decision of Jud. Conf. Comm. on Jud. Conduct & Disability, 517 F.3d 558, 562 (U.S. Jud. Conf. 2008)

Yet, there seems to be some division of authority about the appropriate standard. In 2014, the Judicial Council of the D.C. Circuit explained that the rule does not provide a particular burden of proof:

Neither the Judicial Conduct and Disability Act, nor the Judicial–Conduct Rules, nor the Code of Conduct expressly indicates what burden of proof a judicial council should apply in its factfinding in a judicial misconduct proceeding. The Judicial–Conduct Rules state that a judicial council may dismiss a complaint because "the facts on which the complaint is based have not been established," Judicial–Conduct Rule 20(b)(1)(A)(iii) (emphasis added), *767 **6 suggesting that the standard must at least be preponderance of the evidence. In the analogous context of attorney disciplinary proceedings, the American Bar Association's Model Rules and most state and federal jurisdictions that have addressed the question require complainants (or disciplinary counsel) to establish misconduct by clear and convincing evidence,4 ALTHOUGH A SIZAble minority require only a preponderance of the evidence.5 None applies a lesser standard.6 This Circuit has never determined what burden of proof applies in judicial misconduct proceedings.7 Nor need we do so here. Our disposition would be the same regardless of whether a preponderance or clear-and-convincing standard applies. In re Charges of Jud. Misconduct, 769 F.3d 762, 766–67 (D.C. Cir. 2014).

What is the right answer? Arthur Hellman, a leading scholar on legal ethics, wrote about this issue in a 2019 article in the Georgetown Journal of Legal Ethics. Hellman says the answer is "not obvious."

Policy arguments can be made on both sides. On the one hand, a finding of misconduct is a serious stain on a judge's reputation.411 One can argue that a judge should not be stigmatized in that way on the basis of a mere preponderance of the evidence. On the other hand, it might also be troubling to see a judicial council saying that even if it is more likely than not that a judge engaged in misconduct, the complaint will be dismissed because the evidence is not clear and convincing

Arthur cites a 1993 decision from the Sixth Circuit Judicial Council by Chief Judge Gill Merritt, which applies the clean and convincing standard, though this case arose in the context of alleged sexual harassment off the bench. This precedent does not match how Sutton used it--whether the judge followed the law.

The petition for review by CASA notes that Sutton's application of the clear and convincing standard has no bearing on Judge Boasberg's alleged misconduct at the Judicial Conference.

As I said, there are some procedural issues that the Sixth Circuit Judicial Council will have to iron out.

Some excerpts from Judge David Stras's opinion yesterday dissenting from denial of rehearing en banc in Iowa Migrant Movement for Justice v. Bird (see here for the panel opinion):

Access to legal immigration, which allowed my grandparents to settle here following World War II, has been a lasting gift for my family. The welcome mat we offer to those who come here legally, however, means little if skipping the line results in the same (or even better) treatment. Now, as the federal government tries to enforce the nation's immigration laws, Iowa wants to help. If it can do so without getting in the way, I would let it.

[I.] Let's be clear about what happened here. Two people, plus an organization purporting to speak for two others, set out to defend the federal government from Iowa's alleged overreach. The problem, in their view, was that Iowa made it a crime for aliens to set foot in the state if they had ever been "excluded, deported, or removed from the United States." The remedy was what the federal government had already decided to do once before: make them leave the country. In short, it mandated self-deportation.

The parties have diametrically opposed views of what the law does: Iowa sees it as a helping hand; the plaintiffs as encroaching on federal authority. The federal government, for its part, dropped its own parallel challenge in a companion case. And it has given us assurances that, as far as it is concerned, Iowa's efforts actually "further the purposes of federal immigration law."

Despite these developments, the plaintiffs won a preliminary injunction. Not just any injunction, but one that appears to prohibit enforcement of the law against anyone. Fortunately, the panel sent that part back. But we should have reversed the rest too, because the overbroad injunction was far from the only problem with this case….

Preemption Immigration

Show Comments (11)

Following the 2023 Covenant School shooting in Nashville, in which the shooter was killed by responding police officers, the shooter's parents inherited the shooter's copyright interest in various writings (including the shooter's manifesto). They then assigned it "to a trust to be held for the benefit of the Covenant Parents' children," and the Covenant Parents argued that this should keep the writings from being released. The trial court agreed, but yesterday's Tennessee Court of Appeals opinion in Brewer v. Metro. Gov't of Nashville (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson) basically rejected the copyright argument for nondisclosure:

The trial court and the Parents … conflate the concept of access for inspection [which wouldn't itself implicate the Copyright Act -EV] with reproduction and display [which might potentially implicate the Act, subject to the fair use defense -EV]. Indeed, the TPRA requires that "[a]ll state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state …"

We interpret the TPRA broadly to promote access to the records, in keeping with the statutory purpose. Considering this statutory purpose, we can construe the TPRA in such a way that does not require Metro to publicly display its file. Nor need Metro distribute the records to the public; rather, Metro need only allow Petitioners access for personal inspection. Although the Act protects the means by which copyrighted material may be obtained, the Act itself does not inure total confidentiality and secrecy.

As another state court confronted with this issue noted, "[o]ne could certainly disclose a record without either reproducing or distributing the same record." Nat'l Council on Tchr. Quality v. Curators of Univ. of Mo. (Mo. Ct. App. 2014); see also Ali v. Phila. City Plan. Comm'n (Pa. Commw. Ct. 2015) ("[N]ot every disclosure of copyrighted material without the owner's consent violates the Copyright Act."). By the same token, Metro may allow access to the records for personal inspection without itself copying, displaying, or publishing the records. This result "allow[s] the public to scrutinize [Metro's] reliance on or consideration of the copyrighted material[,]" thus furthering the purposes of the TPRA.

Free Speech Right of Access Copyright

Show Comments (17)

From Brewer v. Metro. Gov't of Nashville, decided yesterday by the Tennessee Court of Appeals (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson):

This case stems from the tragic shooting that occurred at The Covenant School … in Nashville, Tennessee, on March 27, 2023. After killing six victims within the School, including three children, [the shooter] was shot and killed by responding Metro police officers.

This led to requests from various people and organizations under the Tennessee Public Records Act (the "TPRA") for various records, including "the shooter's journals and personal writings." The trial court concluded this information was exempt from disclosure, but the Court of Appeals largely disagreed. The opinion is long (nearly 15,000 words), but here is an excerpt related to the "school safety" argument:

[Under] the "school safety" or "school security" exception[,] … {[i]nformation, records, and plans that are related to school security, the district-wide school safety plans or the building-level school safety plans shall not be open to public inspection.} … The trial court concluded that dissemination of the shooter's original works creates a substantial likelihood of copycat school shootings and that preventing access to such material furthers the greater good of Tennessee schools and schools nationwide. By so concluding, the trial court rejected Petitioners' argument that academic study of a criminal's manifesto lends itself to prevention. Petitioners relied on the affidavit of Dr. Katherine Kuhlman, who opines that academic study of mass shooters' writings is an important aspect of early intervention for potential school shooters.

The trial court adopted the Covenant Intervenors' policy position, which is that "the hateful words of the shooter in this particular case certainly may have an audience in the general public. And as a result, you do have individuals who could take the writings of the shooter and commit violence against the Covenant School or some other school."

Respectfully, this argument is rooted in speculation about potential future events, not facts present in the record before us. This is a policy debate not contemplated by, or anywhere mentioned in, the TPRA. The trial court's interpretation of section 10-7-504(p) is, in essence, a policy exception to the TPRA barring any disclosure of a school shooter's writings and compilations. While the language of section 10-7-504(p) is broad, it is not the blanket policy exception created by the trial court.

Right of Access Free Speech

Show Comments (4)

Back in November, Judge Mark Wolf announced his retirement from the U.S. District Court for the District of Massachusetts. His decision attracted attention because he was a Reagan appointee and he publicly blamed his decision to retire on Donald Trump. He was not quiet about it. Quite to the contrary, he wrote a piece for The Atlantic and appeared on the PBS Newshour.

NPR now reports there may be more to the story:

Wolf's decision to retire coincided with an inquiry by another federal judge into potential misconduct, according to newly published orders. That inquiry found probable cause to believe an unnamed jurist had engaged in misconduct by creating a hostile workplace for court employees.

In an order dated Nov. 24, 2025, U.S. Appeals Court Judge David Barron wrote he conducted a "limited inquiry" into misconduct allegations, including interviews with the judge in question and the judge's former law clerk. The inquiry ended when the judge retired.

The order did not provide details about the alleged misconduct but stated it could include "treating litigants, attorneys, judicial employees or others in a demonstrably egregious and hostile manner" or creating a hostile workplace for court employees. Judge Barron ultimately concluded that further action was unnecessary because of "intervening events."

A source familiar with the inquiry, who spoke on condition of anonymity to discuss the sensitive internal investigation, said the judge in question is Wolf and his resignation terminated the review of his conduct.

I agree with the suggestion in the NPR story that this episode (and others, like this one in Alaska) highlight the need for more formal oversight and disciplinary procedures within the federal judiciary. One possibility would be an Article III Inspector General, appointed by the Supreme Court, with the authority to investigate these sorts of episodes more independently, as well as to publish information about how often such allegations are made and how they are resolved. Such an office might also help accelerate the rate at which bad apples leave the bench.

Were Congress to create such an office, I would also give it the authority to investigate allegations of judicial assignment manipulation and procedural irregularities and conflicts of interest. I would also like it to compile and publish information about things like reversal rates. I do not particularly trust Congress to provide meaningful oversight of the judiciary, but the judiciary could definitely provide greater oversight of itself.

2/5/1793: Chisholm v. Georgia argued.

Show Comments (404)

Over the past year, there have been high-profile misconduct complaints filed against two judges that were dismissed on similar grounds.

In 2024, Judge James Wynn of the Fourth Circuit announced he would take senior status, but withdrew that announcement after Trump won. The obvious rationale for his decision was politics. But the Second Circuit Judicial Council refused to inquire into his motives. As I explained in my Civitas column:

In October 2025, the misconduct complaints against Judge Wynn, and the other two judges were dismissed. Chief Judge Debra Livingston wrote the opinion in each case. Livingston found "there is no genuine issue of fact." She added that whether "the Judge considered the outcome of the election as one factor influencing his decision to withdraw the January 5 letter" was "a factual issue I need not resolve." Had Chief Judge Livingston simply asked Judge Wynn why he rescinded his senior status, the judge could have defended himself with some legitimate reason. But he didn't offer such a reason, because there is no plausible, legitimate reason. Regrettably, there is a brazen double standard for brazenly partisan judges. The federal courts routinely scrutinized President Trump's motivations for improper purposes. But when it comes to rooting out judicial misconduct, judges hide behind a veil of ignorance.

In other words, it falls to the complainant to learn all possible facts--even when a judge takes some action in private, where it is impossible to learn the facts. The federal judiciary will not permit any discovery.

There was a similar result with the complaint that the Department of Justice filed against Judge Boasberg. Chief Judge Sutton's opinion lays out this standard of review:

After conducting an initial review, the chief judge of a circuit may dismiss a complaint of judicial misconduct if he concludes: (A) that the claimed conduct, even if it occurred, "is not prejudicial to the effective and expeditious administration of the business of the courts"; (B) that the complaint "is directly related to the merits of a decision or procedural ruling"; (C) that the complaint is "frivolous" because the charges are wholly unsupported; or (D) that the complaint "lack[s] sufficient evidence to raise an inference that misconduct has occurred." Judicial-Conduct Rule 11(c)(1)(A)–(D); see 28 U.S.C. § 352(a), (b).

Based on this standard, Judge Sutton finds that dismissal is warranted without any further investigation:

The primary theory of the complaint is that the judge made an improper statement at the Judicial Conference on March 11 about the risk that the Administration would not comply with federal judicial rulings. This claim fails to establish a cognizable basis of misconduct. First, it lacks "sufficient evidence" to support the allegations. Judicial-Conduct Rule 11(c)(1)(D).

Judge Sutton ultimately finds that even if Judge Boasberg made certain statements at the Judicial Conference, the statement was not "prejudicial to the effective and expeditious administration of the business of the courts." Judicial-Conduct Rule 11(c)(1)(A).

As co-blogger Jon Adler noted in an addendum, DOJ does not seem to have filed a petition to review the dismissal.

But the Center to Advance Security in America (CASA) has appealed the dismissal of its complaint (Complaint No. 06-25-90174). I do not have a copy of Chief Judge Sutton's opinion dismissing this complaint, which was dated December 19, 2025. CASA has addressed several legal questions in its petition for review.

First, the petition argues that Judge Sutton improperly shifted the burden of proof to the plaintiffs:

Here, the statute demonstrates that the facts are "established through investigation." It is not the burden of the Complainant to prove the facts. Rather, the standard is whether the allegations are capable of being established. They are. Each of the facts were cited with sources such as congressionally released records, court records, or media stories. The facts are verifiable through an investigation.

Despite the evidentiary burden being placed on the judiciary's investigative process, the Memorandum and Order, on numerous occasions, implies it was the Complainant's obligation.

Second, the petition charges that standards in the Guide to Judiciary Policy cannot add additional requirements above and beyond the statute:

It does so citing the Judicial-Conduct Rule 11. But a "Guide to Judiciary Policy" cannot supersede the statute itself. The interpretation of this guide must not mean that the Complainant must produce conclusive evidence. Rather, it must mean that the allegations must raise an inference that misconduct has occurred. The word "evidence," therefore, would describe "evidence" that raises an inference, not dispositive evidence. This interpretation must be the correct one for it to remain consistent with the statutes. That minimal threshold was met by way of Congressional records, court records, and media articles.

I do not think the courts get Auer deference over their own guidance documents.

Third, the petition complains that Judge Sutton imposed a "clear and convincing" standard, which does not appear in the statute:

Later, the Memorandum and Order applies a "clear and convincing evidence" standard, which is nowhere in the statute.25 The case it cites for that standard limits that evidentiary standard to cases about "a judge not following prevailing law,"26 which, as described above, this Complaint is not about.

Putting aside the peculiar issues concerning Judge Boasberg, there seem to be some important question concerning the rules of evidence, burdens of proof, and the interaction between the statute and the Guide to Judiciary Policy.

-The February 2026 edition of Chronicles Magazine has an article by John Howting titled "Heritage Is Better-Off With Kevin Roberts—and Without the Malcontents." In case you had to guess, I am one of those malcontents. I was inclined to ignore this contribution, until I saw that Genevieve Wood, the Vice President of Development at the Heritage Foundation, tweeted a link to the article. Still, I thought it better to just let the issue go. That was, until Wood felt compelled to issue a clarification:

For those on this platform who don't know me, I want to be clear - I believe the Declaration of Independence and Constitution are foundational to American exceptionalism. I should have stated that before posting the article below which could suggest otherwise. Consider this a clarification and my bad.

Whenever I hear the phrase "My bad," I think of Cher Horowitz from Clueless. Maybe not the best pop culture reference for this post.

Now, I think I have to explain why an article about me required a Heritage VP to reaffirm a commitment to the Declaration and the Constitution.

Let's start with the original article. And for those of you who aren't familiar with Chronicles Magazine, Pat Buchanan called it "The toughest, best-written, and most insightful journal in America." And if you are not familiar with John Howting, in November, he described Tucker Carlson's interview with Nick Fuentes as a "conversation with a fellow native-born American about what is in America's national interests."

The article begins by noting that, according to Heritage, thirty employees left the organization. (I think the number is higher, but I'll table that count for now.)

As each malcontent slowly slithers out the door—once every couple of weeks, it seems, in order to strategically drag the drama out for as long as possible—they decry Heritage Foundation President Kevin Roberts for abandoning conservative principles.

And who are the only two "malcontents" mentioned by name that "slither[ed] out the door"? Josh Blackman and Adam Mossoff. And wouldn't you know it, we are both Jewish and Zionists. People who keep insisting that they are not anti-semitic have this knack of fixating on Jews, often with reptilian language. I wonder if you have to slither into a venomous coalition? Let's just chalk it up to another cosmic coincidence.

Howting quotes from my Wall Street Journal op-ed:

Consider Josh Blackman, former editor of The Heritage Guide to the Constitution, who resigned in late December. He writes in The Wall Street Journal that during Roberts' tenure, Heritage drifted from its conservative principles: "free enterprise, limited government, individual freedom, traditional American values, and a strong national defense."

Where did I get these five planks from? I didn't make them up. They are the five planks of Heritage's mission statement.

Heritage's mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.

My op-ed even links to the mission statement:

For more than half a century, the Heritage Foundation's work has rested on five ideological pillars listed in its mission statement: "free enterprise, limited government, individual freedom, traditional American values, and a strong national defense."

Yet, Howting somehow takes umbrage at how I accurately quoted Heritage's own mission statement.

The first three of those principles are Conservative Inc.talking points in defense of "capitalism." In other words, he is deeply concerned—so concerned that it comprises the first three items on his list—about preserving tools for earning money. If he were a carpenter, he'd be rushing into the fire to save his toolbox.

But that charge is small potatos. Howting goes on trivialize the relevance of the Declaration of Independence and the Constitution. Mind you, I do not even mention the Declaration in my op-ed and the Constitution is mentioned in passing.

The fourth—"traditional American values"—means the Declaration of Independence and the Constitution. The Declaration is an ordinance of secession from the British Empire, and the Constitution is an old list of laws and political compromises. This is akin to running into a fire to grab a drawer full of old legal documents.

The Declaration is the greatest statement of governance in the history of the world. Do I really need to state that self-evident truth in our 250th year of independence? But to Howting, it is simply just an "ordinance of secession." Basically a statement announcing a breach of contract. Which self-evident truth does Howting take exception with? And the Constitution is "old list of laws and political compromises." Our foundational law, which even progressives pretend to revere, is cast away as a dusty old document.

Chronicles Magazine is "dedicated to defending and advancing the philosophical and spiritual foundations of Western Civilization." I've learned that the phrase "Western Civilization" no longer refers to the Constitution, the Declaration, and the Anglo-American legal tradition. No, this approach would burn down our entire liberal order, and create some sort of new illiberal order that perhaps resembles a theocracy. There is no need for "old list of laws." Keep that in mind the next time you hear the phrase "Western Civilization."

If you read on, Howting attacks Adam Mossoff's education, and says he does not understand Aristotle:

The Trump Administration has taken a hard line against state climate policies, particularly efforts by states and localities to impose liability on fossil fuel companies for their role in increasing atmospheric levels of greenhouse gases. An April 2025 Executive Order instructed the Department of Justice and other agencies to intervene to block or obstruct such state-level initiatives.

Pursuant to the Executive Order, the Justice Department filed suit to prevent Michigan from filing suit against fossil fuel companies, as other states and some local jurisdictions have. As you might have anticipated, this suit had the problem of trying to preempt a lawsuit that has yet to be filed. Thus it should be unsurprising that United States v. Michigan has been dismissed on jurisdictional grounds, with the judge finding that the Justice Department failed to demonstrate ripeness or standing.

The Justice Department attempted to argue that any suit Michigan could consider fiing against fossil fuel companies is preempted by federal law--but that claim is simply false (for reasons I've discussed in prior posts, such as those listed here). Tort litigation may be a bad way to try and address the problem of climate change, but that hardly means such suits are preempted by federal law, let alone that the federal government can rush to court to block a lawsuit that has not even been filed, nor does it mean that the federal government has standing to ask a federal court to preemptively intervene when a state is considering whether to file suit against private companies in state court.

Like it or not, Congress has never enacted legislation to preempt state litigation or legislation targeting fossil fuel companies or greenhouse gas emissions. If the Trump Administration and fossil fuel companies wish to preempt such efforts, they would be better advised to focus their efforts on encouraging Congress to act instead of filing meritless lawsuits like this one.

The Alexis Wilkins' (FBI Director's Girlfriend's) Libel by Implication Suit Can Go Forward post reminded me of one of my favorite cases, Memphis Pub. Co. v. Nichols (Tenn. 1978). The Memphis Press-Scimitar (what a great newspaper name) published the following article that mentioned Mrs. Ruth Ann Nichols:

Please think briefly about the story, and then click on the MORE link below to learn what the court decided.

Free Speech Libel

Show Comments (16)

On July 29, the Department of Justice filed a complaint against district court Judge James Boasberg, alleging that the Judge's comments to the Judicial Conference suggesting he was concerned that the Trump Administration might disobey district court orders violated multiple Canons of the Code of Conduct for United States Judges.

To avoid potential conflicts within the federal courts in D.C. (where Boasberg sits), the complaint was transferred to the Judicial Council of the U.S. Court of Appeals for the Sixth Circuit.

In December, Chief Judge Jeffrey Sutton of the Sixth Circuit dismissed the complaint, and the order of dismissal was released this week.

Judge Sutton's memorandum and order first outlines the potential bases for dismissal:

After conducting an initial review, the chief judge of a circuit may dismiss a complaint of judicial misconduct if he concludes: (A) that the claimed conduct, even if it occurred, "is not prejudicial to the effective and expeditious administration of the business of the courts"; (B) that the complaint "is directly related to the merits of a decision or procedural ruling"; (C) that the complaint is "frivolous" because the charges are wholly unsupported; or (D) that the complaint "lack[s] sufficient evidence to raise an inference that misconduct has occurred." Judicial-Conduct Rule 11(c)(1)(A)–(D); see 28 U.S.C. § 352(a), (b).

This complaint warrants dismissal.

On the substance of the complaint, Chief Judge Sutton writes:

The allegedly libelous post over which Wilkins is suing (copied from the Complaint).

From Wilkins v. Schaffer, decided yesterday by Judge Donald Middlebrooks (S.D. Fla.):

Plaintiff Alexis Wilkins has lodged a single defamation by implication claim against Defendant Elijah Schaffer, political commentator, comedian, and podcast host whose shows mix politics and current events, with a comedic, satirical style.

Plaintiff's claim is centered on an X-post drafted by the Defendant. The post at issue is caption-less but contains a photograph of Plaintiff alongside her significant other, Federal Bureau of Investigations (FBI) Director Kashyap "Kash" Patel. The post also "quotes" a distinct post, which in pertinent part, states that "Mossad sent female operatives deep into Iran-seducing top officials, infiltrating government surveillance networks, and carrying out sabotage missions."

In essence, Plaintiff argues that this post insinuates and spreads the false narrative that Ms. Wilkins is "an Israeli Mossad agent, spy, or 'honeypot,' who is only in a relationship with Kash Patel to spy on and manipulate the United States government." This insinuation is the core of Plaintiff's claim for defamation by implication….

Free Speech Libel

Show Comments (17)

The Volokh Conspiracy

Harassment Order Stemming from Dispute Among Local Political Figures Vacated on Appeal

Lawyer's Motion "Does Not Contain a Single Citation Identifying Relevant Legal Authority That Supports Plaintiff's Position"

Today in Supreme Court History: February 6, 1858

Open Thread

Fact-Finding At The Grammy's

What Is The Burden Of Proof In Judicial-Council Factfinding?

Eighth Circuit Judge on State Enforcement of Immigration Law

Copyright Law Doesn't Bar Release of Covenant Shooter Manifesto

Tennessee Appeals Court Rejects Argument That Covenant Shooter Manifesto Must Remain Concealed to Avoid Copycats

Judicial Retirements Are Not Always What They Seem

Today in Supreme Court History: February 5, 1793

Open Thread

The Upshot Of The Wynn and Boasberg Complaints: The Code of Conduct Cannot Be Used To Obtain Discovery

Heritage VP of Development Clarifies That "Declaration of Independence and Constitution are Foundational to American Exceptionalism"

Court Dismisses Trump Administration Effort to Block Michigan Climate Lawsuit

Libel by Implication: When Is Half the Truth a Falsehood?

Judicial Misconduct Complaint Against Judge Boasberg Dismissed

Alexis Wilkins' (FBI Director's Girlfriend's) Libel by Implication Suit Can Go Forward

Login Form

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

I WANT FREE MINDS AND FREE MARKETS!

I WANT TO FUND FREE MINDS AND FREE MARKETS

SUPPORT HONEST JOURNALISM

PUSH BACK

HELP KEEP MEDIA FREE & FEARLESS

STAND FOR FREE MINDS

PUSH BACK AGAINST SOCIALIST IDEAS

FIGHT BAD IDEAS WITH FACTS

BAD ECONOMIC IDEAS ARE EVERYWHERE. LET’S FIGHT BACK.

JOIN THE FIGHT FOR FREEDOM

BACK JOURNALISM THAT PUSHES BACK AGAINST SOCIALISM

FIGHT BACK AGAINST BAD ECONOMICS.