3/22/1957: Justice Charles Whittaker takes oath.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
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Georgia Court Order Apparently Included AI-Hallucinated Cases, Copied from Prosecutor's Proposed Order
From CourtTV, discussing the Georgia Supreme Court arguments in an appeal of a murder conviction:
After arguing for the State, Leslie then faced a tough question from Chief Justice Nels S.D. Peterson, who said that in reviewing the trial court's order denying a new trial for Payne, "there are at least five citations to cases that don't exist, and there's at least five more citations to cases that do not support the proposition for which they're cited, including three quotations that don't exist."
Leslie responded that the order she had initially submitted to the court had been revised and took no responsibility for the errant citations. [Chief] Justice Peterson [responded,] "Those nonexistent cases were cited in your initial brief opposing the motion for a new trial."
You can see for yourselves the 33-page order denying a new trial, and the 37-page proposed order from the state.
Thanks to Prof. Adam Scales for the pointer.
Today in Supreme Court History: March 21, 1989
3/21/1989: Texas v. Johnson is argued.
Open Thread
What’s on your mind?
Elon Musk Wins Defamation Lawsuit Brought by Someone Musk Allegedly Misidentified in X Post
From today's Texas Court of Appeals decision in Musk v. Brody, decided by Chief Justice (retired) J. Woodfin Jones, joined by Chief Justice Darlene Byrne and Justice Chari Kelly:
On June 24, 2023, two far-right groups—the Proud Boys and the Rose City Nationalists—tried to disrupt a Pride Night event in Portland, Oregon. The two groups, however, ended up clashing with each other, culminating in a violent confrontation caught on video. Although the Rose City Nationalists had arrived wearing masks, the Proud Boys removed some of their masks, exposing to the camera the faces of two Rose City Nationalists members.
The following day, the video of the brawl circulated widely on social media, becoming a popular topic of discussion. As part of that discussion, some right-wing influencers claimed that the Rose City Nationalists at the event were actually undercover federal agents or left-wing provocateurs posing as neo-Nazis. Several of these influencers tried to identify the two unmasked brawlers. For example, TwitterUser#1 tweeted, "Two unmasked members of Patriot Front. These are either federal agents masquerading as racists - OR-Leftists masquerading as far right. Do you know who these people are?"
Within hours, Twitter users tried to answer that question. Some wrongly identified Brody, then a student at the University of California, Riverside, as one of the unmasked brawlers. The basis for that false identification was apparently a resemblance between Brody and one of the unmasked men. TwitterUser#2 responded with a photo of Brody and a screenshot of a social-media post from Brody's college fraternity, which included a sentence from the post stating that "[a]fter graduation [Brody] plans to work for the government." TwitterUser#2 later posted additional images that included Brody's name and stated that a "member of patriot front is ACTUALLY a political science student at a liberal school on a career path toward the feds." Other Twitter users reposted the TwitterUser#2 posts about Brody.
First Amendment Precludes Title VI Liability for Harsh Anti-Israel Speech at Art Institute of Chicago
A short excerpt from the long decision in Canel v. Art Institute of Chicago, decided yesterday by Judge Georgia Alexakis (N.D. Ill.):
The First Amendment often protects offensive, hateful speech. As the Supreme Court has explained: "[P]reventing speech expressing ideas that offend … strikes at the heart of the First Amendment." It continued: "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate." In the university setting, the Supreme Court has stressed that First Amendment protections are especially "[v]ital." See Rosenberger v. Rector & Visitors of Univ. of Va. (1995) ("For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses."); Healy v. James (1972) (First Amendment protection "is nowhere more vital than in the community of American schools … The college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom.").
In balancing Title VI's prohibition of harassment against the First Amendment's protection of speech, courts distinguish between speech on matters of public concern "directed to the community at large through generally accepted methods of communication" and speech that constitutes "targeted, personal harassment" aimed at a particular individual or group of individuals. See Gartenberg v. Cooper Union (S.D.N.Y. 2025); Landau v. Corp. of Haverford College (E.D. Pa. 2025); see also Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) (analyzing the intersection of the First Amendment and a Title VII hostile environment claim and expressing "doubt that a college professor's expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment")….
The events Canel describes in her second amended complaint—even after being read in the light most favorable to her and with all reasonable inferences drawn in her favor—… represent instances of speech on matters of public concern "directed to the community at large through generally accepted methods of communication." Canel points to flyers criticizing SAIC's response to the Israeli-Palestinian conflict and resulting discourse that were thumbtacked in a school hallway. She alleges that students and faculty—herself included—exchanged open letters and petitions sharing their views on the conflict. She describes various social media posts, inviting SAIC students to protests, utilizing slogans associated with the Israeli-Palestinian conflict, and depicting posters and signs containing the same. She alleges that students conducted a "walkout," protesting on public streets and chanting slogans using similar language….
Delilah and Me
Back in 2002, I heard a great question, from Betchen and Paul Barber: Who cut off Samson's hair?
Of course I said "Delilah"—I knew that had to be wrong (or why would they have asked?), but I didn't have any better answer. The answer is Delilah's servant (or at least her agent, in legal parlance): "Having put him to sleep on her lap, she called a man to shave off the seven braids of his hair, and so began to subdue him."
The point isn't that people remember incorrectly—rather, it's that much of what we remember is oversimplified, and often along rational pathways: In particular, the actions of an agent are easily remembered as (not simply treated as) the actions of the principal who instructed the agent to act.
I was reminded of this by this item from Judge Aleta Trauger's decision Wednesday in Volokh v. Williamson County Archives & Museum, a case in which I'm challenging a Tennessee law that appears to allow only Tennesseeans to request court records:
The defendants argue that Volokh lacks standing to bring his claims against … Circuit Court Clerk Barrett because he never "made any request of or otherwise communicated with the Circuit Court Clerk's Office." Instead, only Nantuna [Volokh's assistant] corresponded with Barrett. Further, the defendants argue, Volokh lacks third-party standing to bring claims on behalf of Nantuna.
Sam Altman's Defamation and Abuse of Process Case Against Sister Can Go Forward
From Judge Zachary Bluestone (E.D. Mo.) today in Altman v. Altman, the factual allegations (and of course at this point they are just allegations):
Annie and Sam are biological siblings who once lived together at their family home in Clayton, Missouri. [Annie alleges:] Annie asserts that Sam sexually abused her from 1997 to 2006. The exploitation began when Annie was only 3 years old and Sam was 12. Sam started with forcible touching and oral sex but escalated to acts including battery, molestation, sodomy, and rape. The abuse ended around 2006, when Annie was approximately 12 years old and Sam was an adult ….
[Sam alleges:] For years, Sam and his family have provided Annie with financial support through their late father's estate, as well as offering to help with medical expenses, housing, and employment. However, due to Annie's "serious mental health issues" and "harmful behavior," Sam and his family "have felt the need to be deliberate and thoughtful about the support they provide." As a result, they have rejected Annie's demands for financial autonomy.
Annie retaliated by engaging in a smear campaign against her brothers, falsely claiming they sexually abused her. Beginning in 2021, Annie claimed on Twitter that she "experienced sexual, physical emotional, verbal, financial, and technological abuse from my biological siblings, mostly Sam Altman and some from Jack Altman." Annie then posted "a continuous stream of false sexual abuse allegations against Sam Altman" on various platforms. For example, in March 2023, she said, "I'm not four years old with a 13 year old 'brother' climbing into my bed non-consensually anymore. (You're welcome for helping you figure out your sexuality.)." Annie also wrote that she "experienced every single form of abuse with him—sexual, physical, verbal, pharmacological …, and technological."
The recriminations continued through 2024, including in a work of poetry. Annie also posted videos on TikTok with accusations that she was "touched by older siblings" and "that 'an almost tech billionaire' was 'terrified of the little sibling' that he 'repeatedly molested and physically abused.'"
The court allowed Sam's defamation claim to go forward:
Judge Blocks Lawyer's Distribution of Animation That Allegedly Shows "Uncommanded Discharge" of Sig Sauer Pistol
"This Animation is literally false as a factual matter," the judge concludes, issuing a permanent injunction against the use of the animation for advertising purposes.
From today's decision in Sig Sauer, Inc. v. Bagnell by Judge Victor Bolden (D. Conn.):
Jeffrey Bagnell, an attorney, commissioned High Impact, a graphics company, to create an animation purporting to show how a P320 pistol could misfire absent a trigger pull ("uncommanded discharge" or the "Animation"). He later posted that Animation to YouTube and published it on his firm's website. Part of Mr. Bagnell's business involves representing plaintiffs who claim that they have been injured by uncommanded discharges from P320s.
Sig Sauer … alleg[es] that the Animation constitutes false advertising by inaccurately portraying the firearm's internal components and safety features…. Jeffrey S. Bagnell … is hereby ORDERED to refrain permanently from using this version of the Animation for advertising purposes, whether on the Bagnell Firm website or in any other form on any other platform, and whether on the Internet or in any other media….
The court concludes that the animation constitutes "commercial speech" for First Amendment purposes and for federal false advertising law (Lanham Act) purposes:
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Civil unrest, true threats, and South Carolina receptions.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
America turns 250 this year, which is outstanding. But you know who else turns 250 this year? A whole lot of state declarations of rights. And that is a thing to celebrate, too, which we'll do on Friday, April 10 with our friends at the Liberty & Law Center at Scalia Law School in Arlington, Va. You should come, too. Register here! And in the meantime, check out our blog series on state declarations, this week focusing on Delaware.
New on the Short Circuit podcast: An interesting lease between boyfriend and girlfriend proves decisive in a forfeiture case.
- Within days of President Trump beginning his second term, OMB orders a sweeping freeze to all federal financial assistance programs. The following day, 22 states sue, alleging that the freeze is unlawful. The following day, OMB rescinds the memo announcing the policy. Feds: So the lawsuit is moot. First Circuit: Then why did the White House Press Secretary post, "This is NOT a rescission of the federal funding freeze. It is simply a rescission of the OMB memo"? The case is live and the preliminary injunction against the freeze is affirmed. But the part of the injunction actually requiring disbursement of the money is vacated.
- This First Circuit case is not that big of a deal. But it's about escheatment, and there's a guy on the Short Circuit staff who really loves telling people that the word "cheater" is derived from the word "escheator" because of the widespread (seemingly correct) belief that the king's escheators were more interested in gobbling up property for profit than anything else. So, there you go. Tell your friends.
- After teen is shot and killed in Boston park in 1974, vicenarian suspect flees to the Midwest and evades detection using different aliases—before eventually being indicted for the murder in 1997 and convicted in 2004. Suspect: I didn't get a speedy trial. Massachusetts: … because you were on the lam. First Circuit: The speedy-trial clock starts with the 1997 indictment, and you didn't argue that the 1997–2004 gap was too long. No habeas for you. Read More
My New Liberalism.Org Article on How "Immigration Restrictions Restrict Americans' Liberties"
Liberalism.Org is a new initiative established by the Institute for Humane Studies.
Today, Liberalism.Org posted my first essay as a regular contributor to their project. It is entitled "Immigration Restrictions Restrict Americans' Liberties." Liberalism.Org is a new initiative of the Institute for Humane Studies, led by Jason Kuznicki, formerly of the Cato Institute. Its purpose is to explore, promote, and revitalize liberal political thought in an era where illiberal and anti-liberal movements of various types are on the rise. Jason provides an overview of the project and its purposes here.
I will be contributing new essays to the project (published at their website) several times per year, most likely focusing on issues related to immigration, democratic theory, and constitutional law. The other regular contributors are prominent libertarian or libertarian-leaning thinkers. They include Radley Balko (leading expert on criminal law and law enforcement issues), Janet Bufton (prominent Canadian classical liberal thinker and political commentator), Prof. Michael Munger (Duke University), Sarah Skwire (Liberty Fund), and Prof. Matt Zwolinski (U of San Diego, coauthor of The Individualists: Radical, Reactionaries, and the Struggle for the Soul of Libertarianism). It is an honor to be associated with this impressive group, and I look forward to working with them.
Here is an excerpt from my first article:
The biggest victims of immigration restrictions are the would-be migrants, who are consigned to a lifetime of poverty and oppression simply because they were born in the wrong place, to the wrong parents. But the horrific experience of the second Trump administration highlights how restrictionism also poses a grave threat to the liberty and welfare of native-born citizens. While some of the harms caused to natives are specific to the policies of this administration, many are inherent in the very nature of exclusion and deportation, and they occur even under more conventional presidents. The ultimate solution is to end all or most immigration restrictions, or at least to severely curb them.
Since Trump returned to office in January 2025, Immigration and Customs Enforcement (ICE) and other immigration enforcement officers have killed at least three U.S. citizens (two in Minnesota and one in Texas), wounded numerous others, and detained hundreds illegally, after mistaking them for undocumented immigrants. ProPublica found some 170 cases of illegal detention of citizens through October 2025, but that is almost certainly a severe underestimate, given that the federal government does not keep statistics on such cases, and ProPublica could only include those they were able to track down. ICE and other agencies also make extensive use of racial profiling, which leads to detention and harassment of numerous U.S. citizens who look like they may be Hispanic or belong to other nonwhite groups, and thus potentially suspect. The enormous extent of racial and ethnic profiling by ICE is shown by the fact that immigration arrests in Los Angeles County declined by 66 percent after a federal court order barring the use of such tactics; the ruling was eventually blocked by the Supreme Court.…
For all too many natives, immigration restrictions are literally a matter of life and death. The disproportionate role of immigrants in scientific and medical innovation indicates that large-scale exclusion prevents or at least postpones a wide range of life-saving innovations, thereby costing many American lives. A recent National Bureau of Economic Research study found that a 25 percent increase in immigration rates would likely save about 5,000 lives per year simply by virtue of the fact that immigrants are disproportionately employed in the healthcare and elder care industries, and increased immigration would provide elderly people with more of the care they desperately need, in a society with an aging population.…
The immigration restrictions of the second Trump administration have inflicted even greater harm on U.S. citizens because they have been so egregious, including ramping up mass deportation efforts, greatly increasing the number of ICE agents (from 10,000 to 22,000) and expanding detention facilities. But it's important to recognize that grave damage is inflicted even under more conventional presidents, even if it is less visible and garners fewer headlines. Illegal detention and deportation of U.S. citizens long predates Trump. Northwestern University political scientist Jacqueline Stevens estimates that the federal government detained or deported more than 20,000 U.S. citizens from 2003 to 2010, at a time when George W. Bush and Barack Obama—two relatively pro-immigration presidents—occupied the White House.
Racial profiling by immigration enforcers is also not unique to the Trump era. In 2014, the Obama administration decided to perpetuate the use of racial profiling by federal immigration enforcers in areas within 100 miles of a "border," a designation that covers areas where some two-thirds of the population lives, as well as several entire states, including New Jersey, Michigan, and Florida. Obama officials reasoned that large-scale immigration enforcement could not work without such racial and ethnic discrimination….
Some of these negative effects can be mitigated by limiting immigration restrictions, rather than ending them completely. For example, we can abolish ICE and bar all or most interior deportations, limiting federal deportation operations to actual border areas near the Canadian and Mexican frontiers. This would significantly reduce the threat deportation poses to natives' civil liberties. But those effects would still be present in border areas, where millions of native-born citizens live, including many who are vulnerable to racial profiling and other abuses.
We can also try to reduce negative economic and fiscal impacts of immigration restrictions by letting in those migrants most likely to contribute to growth and innovation, while keeping out others. But governments are unlikely to do a good job with such selection. Many of the biggest immigrant innovators and entrepreneurs arrive as children or young adults, making it difficult or impossible to predict their impact in advance….
These realities don't mean that incremental immigration policy improvements are useless. Incrementally reducing immigration restrictions can still diminish the economic and social damage they cause. And incremental cutbacks to the apparatus of exclusion and deportation, such as abolishing ICE, can reduce the threat to U.S. citizens' civil liberties. We should not let the best be the enemy of the good. But we should also not forget that the best should be our ultimate objective.
Court Declines Pro Se Litigant's Request for Certain Disability Accommodations
From Judge John Tuchi's order last week in Doe v. City of Scottsdale (D. Ariz.):
Plaintiff filed a motion for "reasonable accommodations pursuant to Title II of the Americans with Disabilities Act … and Section 504 of the Rehabilitation Act … to ensure equal access to the Court and effective participation in pretrial proceedings." Plaintiff requests the Court make the following accommodations: (1) to conduct pretrial matters in writing only, or to the extent in-person hearings are required, to hear the parties by telephone or video-disabled conference only; (2) to permit Plaintiff "to seek written clarification" of orders before the Court issues her adverse consequences; (3) to refrain from issuing sanctions in the event Plaintiff's filings demonstrate "deviations in formatting, length, or explanatory detail"; and (4) limiting discovery, depositions, and meet-and-confer procedures to written format only.
The Court acknowledges that Plaintiff prefers to participate in this matter through writing, and the Court will keep that preference in mind. Ultimately, though, the Court has inherent authority to manage its docket, maintain decorum of the parties before it, and promulgate and enforce rules for the management of litigation. The Court observes that its general administration of matters does typically occur in writing or by telephone, but it declines to restrain its authority to address the parties in-person to the extent it becomes warranted or necessary.
$10K Fine for Lawyer Who Filed Brief Apparently Containing Many Hallucinations
From Doiban v. Oregon Liquor & Cannabis Comm'n, decided by Oregon Court of Appeals Judge Scott Shorr, joined by Judges Steven Powers and Ryan O'Connor:
Petitioner's opening brief contains fabricated case citations, purported quotations that do not exist anywhere in Oregon case law (attributed to various cases, some fabricated and others not), and inaccurate descriptions of the proposition for which certain cases stand…. {"[T]here are at least 15 citations to cases that are fabricated" and "at least nine purported quotations—attributed to various cases, some fabricated and others not—that do not exist anywhere in Oregon case law." … [P]etitioner [also] "included citations to actual cases; however, there are multiple instances in which the description of the proposition for which the cases are cited is not accurate."} [W]e sanction petitioner's counsel $10,000….
Andrew Kent on the Alien Enemies Act
His work further demonstrates that the AEA cannot be used in response to illegal migration or drug smuggling, but only when there is a military attack.
Fordham University law Prof. Andrew Kent has an excellent new Lawfare article outlining the reasons why Donald Trump's invocation of the Alien Enemies Act of 1798 is illegal. The AEA can only be invoked in the event of a war, invasion, or predatory incursion, or threat thereof. Contrary to the administration's claims, illegal migration and drug smuggling do not qualify, and the executive does not deserve sweeping deference in determining whether an "invasion" exists. Here is an excerpt:
The Supreme Court's Feb. 20 decision that struck down President Trump's tariffs imposed under the International Emergency Economic Powers Act exposed fractured reasoning among the six-justice majority about the correct approach to statutory interpretation. If the Court had one overall message, however, it was that delegations of emergency power to the president should not be treated as invitations for the executive to grossly stretch statutory text to cover actions entirely unimaginable by the Congress that passed the law.
If this approach applies beyond the Trump administration's tariff policy, Trump's invocation of the Alien Enemies Act (AEA) nearly a year ago should also be declared illegal. The Trump administration's use of the statute, aimed at alleged members of the Venezuelan criminal organization Tren de Aragua (TdA), has produced consequential litigation now pending before the U.S. Court of Appeals for the Fifth Circuit en banc, in W.M.M. v. Trump. The AEA is being used for the first time since World War II—and for the first time ever apart from declared wars.
The Supreme Court frequently directs that statutes be interpreted according to their meaning at the time of enactment. A legal-historical excavation of the AEA's meaning in 1798, when it passed the Fifth Congress and was signed by President John Adams, is therefore required to answer the questions raised in W.M.M.
Because the AEA has been used only infrequently—just in the War of 1812, World War I, and World War II—no comprehensive scholarly analysis of the statute existed before Trump's invocation in 2025.
I performed the historical research and compiled the findings in an academic article that examines the statute and its background, immediate context, and legislative purposes. Based on the article, I submitted an amicus brief in support of the detainees in W.M.M.
Here, I will describe the findings that lead me to conclude the statute is being used illegally today. Then I will note some hard questions raised in W.M.M. that are not resolved entirely by legal-historical analysis tied to 1798.
Kent's academic article and amicus brief in the W.M.M. case are also well-worth reading for anyone interested in these issues. My own new article "Immigration is Not Invasion" complements Kent's in various ways, by analyzing the meaning of "invasion" in the Constitution, as well as the AEA. The two meanings are the same, and in both cases an invasion is - as James Madison put it - "an operation of war." It must be a military attack, not merely some kind of illegal cross-border movement. As I explain in the article, this follows from the standpoint of leading versions of both originalism and living constiutionalism. I also explain in greater detail than Kent why courts should not defer to the executive's unsupported assertions that an "invasion" exists. Otherwise, you get absurdities such as the Trump Justice Department's claim that the president could invoke the AEA in response to the "British Invasion" of rock stars like the Beatles.
Like Kent, I have also filed an amicus brief in the W.M.M. case, which I coauthored on behalf of the NYU Brennan Center, the Cato Institute, and others.
My July 2025 Dispatch article, "Not Everything is an Emergency," outlines general reasons why courts should not defer to executive invocations of emergency powers, but rather should require the government to prove that the supposed emergency justifying the use of extraordinary powers actually exists.
Today in Supreme Court History: March 20, 1854
3/20/1854: The Republican Party is founded. President Abraham Lincoln would be elected President on the Republican ticket six years later on November 6, 1860.
Open Thread
What’s on your mind?
For Staten Island, The Interim Docket Is The Final Docket
After the Supreme Court grants an emergency stay, the plaintiffs dismiss the case with prejudice.
Earlier this month, the Supreme Court granted an emergency stay in the Staten Island redistricting case, Malliotakis v. Kosinski. The per curiam opinion offered no reasoning, but simply stated that the lower court's ruling was stayed "disposition of a petition for a writ of certiorari in this Court, if such a writ is timely sought." But everyone knew that no such petition would ever be filed. As soon as the Court granted the stay, the case was effectively over. There was no way to litigate this case further before the midterm election.
On remand, the parties stipulated that the case would be dismissed with prejudice, each side paying their own fees. I suspect the plaintiffs realized that further litigation would be futile, and would just generate costs, so they called it quits.
I know that Justice Kavanaugh is partial to using the term "interim orders docket." But there was nothing interim here. The Supreme Court's stay was final.
Justice Sotomayor, in dissent, contended that the New York courts could settle this matter quickly:
In short, there is every reason to think that the New York courts will fully, swiftly, and prudently resolve this case before the primary election. Basic federalism principles, which have bound federal courts since the founding, require giving the New York courts a fair opportunity to do so. The majority, however, denies them that chance.
Justice Alito responded that the dissent "demands that we wait until the completion of a series of events that would likely run out the clock before we could review the order." Yet, by issuing the stay, the Court ran out the clock for the entire case. As a result, the lower court will never have a shot to review it.
Why should the lower courts be allowed to use a shadow docket but not the Supreme Court?
My sincere thanks to the Supreme Court for saving my home town of Staten Island.
