The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

Government Employees May Generally Be Disciplined for Sufficiently Controversial Public Political Speech

From the Eleventh Circuit, a reminder that First Amendment protections against government employer action are much weaker than the protections against the government as sovereign (especially, but not only, when the speech is also "disrespectful, demeaning, rude, and insulting").

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From Judge Kevin Newsom's opinion today in Labriola v. Miami-Dade County, joined by Judges Robin Rosenbaum and Stanley Marcus:

John Labriola was a media aide for the Miami-Dade Board of County Commissioners. In his own name and on his own time, Labriola wrote an opinion piece that criticized the Equality Act, an as-yet-unenacted bill that would prohibit discrimination based on sex, sexual orientation, and gender identity.

In his piece, Labriola used inflammatory language to describe the LGBT people whom the bill sought to protect. He warned small-business owners "who resist surrendering their consciences to the new 'tranny tyranny'" that, if the bill was passed, "[i]t's going to be a choice of either baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business." So too, Labriola warned local governments of what was to come: "No conservative small town in the South or Midwest will be safe from that weird study in perversity known as Drag Queen Story Hour, in which public libraries host a heavily made-up, flamboyant, homosexual pedophile in a dress who rolls around on the floor with little children as he reads them stories about gender fluidity and LGBT unicorns."

Soon after, in an email to staff members of the Board of County Commissioners, a County citizen took issue with the opinion piece and questioned whether Labriola's views represented the County's. A County employee forwarded that email to the Miami Herald, after which the paper published an article describing the opinion piece as a "slur-laden tirade against transgender people." At that point, the County received a barrage of phone calls from concerned residents.

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Guns

Don't Plead History and Bruen in Cruel and Unusual Punishment Challenge to Long Prison Sentence for Rape, When Rape Was Historically a Capital Crime

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From yesterday's decision of the Iowa court of Appeals in Cue v. State, written by Judge Tyler Buller and joined by Judges Julie Schumacher and John Sandy:

Cue's … application for postconviction relief … cited New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), to claim that Iowa's mandatory-minimum-sentencing scheme for certain class "B" felonies (seemingly as applied and on its face) was incompatible with our historical traditions and therefore cruel and unusual punishment. The district court denied relief, finding Cue cited "absolutely no authority to support his proposition that the Bruen test should be profoundly expanded to include sentencing schemes for sex offenses." …

Cue pled guilty in 2019 to four counts of sexual abuse in the second degree, class "B" felonies in violation of Iowa Code section 709.3(1)(b) (2017), for raping and molesting his minor children over the course of years. The sentencing court ran half of the counts concurrent and half consecutive, amounting to two consecutive twenty-five-year prison sentences, each of which has its own 70% mandatory minimum. We affirmed on direct appeal….

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AI in Court

Georgia Trial Court Cites Likely AI-Hallucinated Cases (Possibly Borrowed from Party's Filing)

There have likely been hundreds of filings with AI-hallucinated citations in American courts, but this is the first time I've seen a court note that a judge had included such a citation.

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From Monday's decision in Shahid v. Esaam, by Judge Jeffrey Watkins (Ga. Ct. App.), joined by Judges Anne Barnes and Trenton Brown; note that the trial court's order was apparently a proposed order prepared by a lawyer (in many state courts, it's common for judges to rely on lawyers to prepare such orders):

After the trial court entered a final judgment and decree of divorce, Nimat Shahid ("Wife") filed a petition to reopen the case and set aside the final judgment, arguing that service by publication was improper. The trial court denied the motion, using an order that relied upon non-existent case law. For the reasons discussed below, we vacate the order and remand for the trial court to hold a new hearing on Wife's petition. We also levy a frivolous motion penalty against Diana Lynch, the attorney for Appellee Sufyan Esaam ("Husband")….

Wife points out in her brief that the trial court relied on two fictitious cases in its order denying her petition, and she argues that the order is therefore, "void on its face." … In his Appellee's Brief, Husband does not respond to Wife's assertion that the trial court's order relied on bogus case law. Husband's attorney, Diana Lynch, relies on four cases in this division, two of which appear to be fictitious, possibly "hallucinations" made up by generative-artificial intelligence ("AI"), and the other two have nothing to do with the proposition stated in the Brief.

Undeterred by Wife's argument that the order (which appears to have been prepared by Husband's attorney, Diana Lynch) is "void on its face" because it relies on two non-existent cases, Husband cites to 11 additional cites in response that are either hallucinated or have nothing to do with the propositions for which they are cited. Appellee's Brief further adds insult to injury by requesting "Attorney's Fees on Appeal" and supports this "request" with one of the new hallucinated cases.

We are troubled by the citation of bogus cases in the trial court's order. As the reviewing court, we make no findings of fact as to how this impropriety occurred, observing only that the order purports to have been prepared by Husband's attorney, Diana Lynch. We further note that Lynch had cited the two fictitious cases that made it into the trial court's order in Husband's response to the petition to reopen, and she cited additional fake cases both in that Response and in the Appellee's Brief filed in this Court….

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Housing Policy

NIMBYism Stifles Housing Construction in Previous Growth Areas

In recent years, exclusionary zoning and other regulatory restrictions have begun to block housing construction in areas where it was once relatively easy.

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In a recent article in the Atlantic, Rogé Karma, describes how NIMBY ("not in my backyard") forces have been increasingly stifling housing construction many areas - including Sun Belt cities - where it was previously relatively easy:

Something is happening in the housing market that really shouldn't be. Everyone familiar with America's affordability crisis knows that it is most acute in ultra-progressive coastal cities in heavily Democratic states. And yet, home prices have been rising most sharply in the exact places that have long served as a refuge for Americans fed up with the spiraling cost of living. Over the past decade, the median home price has increased by 134 percent in Phoenix, 133 percent in Miami, 129 percent in Atlanta, and 99 percent in Dallas. (Over that same stretch, prices in New York, San Francisco, and Los Angeles have increased by about 75 percent, 76 percent, and 97 percent, respectively).

This trend could prove disastrous. For much of the past half century, suburban sprawl across the Sun Belt was a kind of pressure-release valve for the housing market. People who couldn't afford to live in expensive cities had other, cheaper places to go. Now even the affordable alternatives are on track to become out of reach for a critical mass of Americans.

The trend also presents a mystery. According to expert consensus, anti-growth liberals have imposed excessive regulations that made building enough homes impossible. The housing crisis has thus become synonymous with feckless blue-state governance. So how can prices now be rising so fast in red and purple states known for their loose regulations?

As Karma describes later in the article, the main cause of the problem is the growth of exclusionary zoning and other regulatory restrictions on construction in areas where the were previously relatively lax. He relies in part on an important new  new National Bureau of Economic Research study by leading housing economists Edward Glaeser and Joseph Gyourko, which I analyzed here.

The trend is not entirely uniform, and there are bright spots. As Karma notes, cities like Raleigh, NC have enacted zoning reforms curbing NIMBYism. The same is true of Austin, Texas. The Texas state legislature recently enacted valuable statewide reforms., and California enacted a useful YIMBY law just yesterday.

I am also a little skeptical of the claim - advanced in Karma's article - that increases in the proportion of wealthy and highly educated residents in an area necessarily boost NIMBYism. Survey data on attitudes towards NIMBYism and housing construction is equivocal, and much depends on how questions are framed. Moreover, much survey data does not find a significant difference in attitudes between affluent homeowners on the one hand and renters on the other. Economic ignorance is often a bigger driver of support for exclusionary zoning than narrow self-interest by homeowners. Indeed, many current homeowners actually have much to gain from curbing exclusionary zoning and other NIMBY excesses.

That said, it is also true that studies find that local NIMBY activists are disproportionately affluent, white, and relatively older homeowners. Such activists can be quite effective in blocking housing projects even if their views are not representative of a general divide between, say, homeowners and renters. Katherine Levine Einstein and her coauthors demonstrate this in detail in their important book Neighborhood Defenders.

The good news is much can be done to curb NIMBYism. Statewide legislation can abolish or at least limit the zoning rules and other regulatory restrictions NIMBYs rely on. In a 2024 Texas Law Review article coauthored with Josh Braver, we argue that exclusionary zoning and other similar restrictions that greatly limit housing construction violates the Takings Clause of the Fifth Amendment, and outline ways in which a combination of litigation and political action can be used to combat them.  See also our much shorter non-academic article  in the Atlantic. State-constitutional litigation may be an alternative path to success, along with state constitutional amendments (which in many states are much easier to enact than amendments to the federal Constitution).

The spread of NIMBYism is not inevitable. It can even be reversed in places where it has previously taken root. But we YIMBYs need to do a better job of using the various tools available to us.

 

Civil Procedure

Interesting Rule 11 / Incorrect Allegation Question in One of the Sean Combs Civil Cases

Can plaintiffs be sanctioned because they "refused to voluntarily dismiss [a defendant] after reviewing the additional information from his cell phone and bank records" that seems to exonerate him?

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From yesterday's notice in Parham v. Combs from Judge Rita Lin (N.D. Cal.):

The Court requests that the parties be prepared to provide their views on the following at the hearing on Defendant Drew Desbordes' motion for sanctions, set for July 8, 2025, at 10:00 a.m., in Courtroom 15 at the San Francisco Courthouse:

Having considered the motion for sanctions and associated evidence, the Court is tentatively of the view that Plaintiffs' allegations pertaining to Desbordes now lack a factual basis. From Desbordes' phone and bank records, it appears virtually certain that he was in Georgia, not in Orinda, California, at the time of the alleged assault in March 2018.

However, when Plaintiffs added Desbordes to this lawsuit, there did appear to be a reasonable factual basis to name him. Before Plaintiffs sued Desbordes, two individuals—Jane Doe and John Doe—contacted Ms. Mitchell, offering to provide information related to the case. The individuals informed Ms. Mitchell that Desbordes was present at the time of the assault. To confirm this fact, Ms. Mitchell presented Plaintiff Parham with a "photo lineup," during which Parham identified Desbordes as one of the individuals who participated in the alleged assault. Parham did not know the other two individuals or communicate with them prior to her identification.

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"A Question of Remedy, not Redressability"

The DC district court issues an important decision in RAICES v Noem - the first in the new post-CASA legal universe

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Proclamation 10888, issued by the President on his first day in office, purported to:

"prevent anyone who crosses the southern border of the United States at any place other than a designated port of entry, as well as anyone who enters anywhere else (including at a designated port of entry) without a visa or without extensive medical information, criminal history records, and other background records, from applying for asylum."

Plaintiffs challenged the Proclamation on statutory grounds, alleging that it violates a number of statutes governing the granting or withholding of asylum, and, "most fundamentally," that the President is not authorized to unilaterally reform the Congressionally-structured asylum system.[1]

Yesterday, the DC district court, in RAICES v. Noem,  granted summary judgment to the plaintiffs on all claims, vacated the Proclamation, and entered an injunction "precluding the Agency Defendants[2] from implementing the Proclamation."[3] Read More

Equal Protection

S. Ct. Will Decide: Can States Define Sports Team Eligibility by "Biological Sex Determined at Birth"?

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That's the question presented in two companion cases that the Court agreed to hear, Little v. Hecox and West Virginia v. B.P.J. Note an important difference between this case and Skrmetti, which upheld state limits on certain kinds of youth gender medicine: In Skrmetti, the majority held that the state laws didn't discriminate based on sex, but here it's clear that the underlying law does discriminate based on sex, because it provides for separate women's sports teams. The question is whether the state may choose to define sex based on the particular biological criteria that it has selected.

An excerpt from the Ninth Circuit opinion in Little v. Hecox, which the Court will review:

Because the Act subjects only students who wish to participate in female athletic competitions to an intrusive sex verification process and categorically bans transgender girls and women at all levels from competing on "female[ ], women, or girls" teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes, we affirm the district court's grant of preliminary injunctive relief to Lindsay Hecox….

We recognize that, after decades of women being denied opportunities to meaningfully participate in athletics in this country, many cisgender women athletes reasonably fear being shut out of competition because of transgender athletes who "retain an insurmountable athletic advantage over cisgender women." We also recognize that athletic participation confers on students not just an opportunity to win championships and scholarships, but also the benefits of shared community, teamwork, leadership, and discipline. Excluding transgender youth from sports necessarily means that some transgender youth will be denied those educational benefits.

However, we need not and do not decide the larger question of whether any restriction on transgender participation in sports violates equal protection. Heightened scrutiny analysis is an extraordinarily fact-bound test, and today we simply decide the narrow question of whether the district court, on the record before it, abused its discretion in finding that Lindsay was likely to succeed on the merits of her equal protection claim. Because it did not, we affirm the district court's order granting preliminary injunctive relief as applied to Lindsay, vacate the injunction as applied to non-parties, and remand to the district court to address the scope and clarity of the injunction.

Likewise, here's the introduction to the Fourth Circuit opinion in West Virginia v. B.P.J.:

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Politics

The Chutzpah of Justice Kennedy Lecturing Us About Democracy on June 26

"Those who founded our country would not recognize [Justice Kennedy's] conception of the judicial role."

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June 26 is a very significant day in Supreme Court history. On, 6/26/2003, Justice Kennedy wrote the majority opinion in Lawrence v. Texas. On 6/26/2013, Justice Kennedy wrote the majority opinion in U.S. v. Windsor. And on 6/26/2015: Justice Kennedy wrote the majority opinion in Obergefell v. Hodges.

The last of these opinions was the most significant. June 26, 2015 fell on a Friday. At the time, it was fairly unusual for the Supreme Court to hand down opinions on a Friday. But wouldn't you know it, Pride weekend would begin the next day. At the time, David Lat wondered if Joshua Matz, one of Kennedy's clerks "pointed out to his boss . . . that handing down Obergefell on June 26 would basically turn that day into Justice Anthony M. Kennedy Day for the LGBT community." And so it came to pass.

It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell. What still galls me about the decision is that public opinion was trending, rapidly, in favor of a right to same-sex marriage. Within only a few years, states that approved of same-sex marriage would have reached a critical mass. In 2013, the 538 Blog offered this forecast for support for same-sex marriage. In the brief period between Windsor and Obergefell, I would share this chart with my students. In hindsight, it seems so quaint.

 

Alas, this process would never be completed. Chief Justice Roberts stated the issue plainly in one of his greatest dissents:

Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

This windup brings me to remarks that Justice Kennedy made--on all days--June 26, 2025.

"Many in the rest of the world look to the United States to see what democracy is, to see what democracy ought to be," Kennedy said during an online forum about threats to the rule of law. "If they see a hostile, fractious discourse, if they see a discourse that uses identity politics rather than to talk about issues, democracy is at risk. Freedom is at risk."

I suspect that Justice Kennedy sees President Trump as a threat to Democracy--a threat heightened because Kennedy chose to retire under Trump. I think back to that moment at the White House where Kennedy wagged his finger at Trump over something, and Trump just walked away. How will Justice Kennedy discuss that incident in his memoir?

Justice Kennedy should look at how his own decisions subverted democracy without even the faintest patina of law.

On this eve of Independence Day, we should not lose sight of the most important freedom--the right of self-governance. Here I quote from Justice Scalia's Obergefell dissent:

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

I still miss Justice Scalia. No one on the Court can come close to his prose. Alas, as evidenced by Skrmetti, we are still living in Justice Kennedy's shadow.

Separation of Powers

How Congress Is Structurally Weaker than the President and the Judiciary

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People commonly complain that Congress is doing too little, being too passive while the other branches are doing much more (for better or worse). There's a lot to this complaint, I think.

But I think it's also worth recognizing that this might stem in part from one weakness that Congress has relative to the other branches (without denying that it's also stronger in various ways than the other branches): Congress is the only branch that has to operate as a supermajority.

The President is one person, and can make his own decisions. To be sure, the bureaucracy can stymie him, but he is at least formally in charge of the Executive Branch, and practically has a lot of authority over it.

The Supreme Court can make decisions by simple majority vote.

But Congress requires majorities in both the House and the Senate (and of course 2/3 majorities if it needs to override a Presidential veto). Even when they are controlled by the same party, having a majority in one for some proposal needn't mean that there's a majority in the other.

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California

California Passes Important New YIMBY Housing Law

The new legislation exempts most new urban housing construction from the previously often stifling CEQA law. YIMBY ("yes in my backyard") advocates are cheering.

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On Monday, California enacted an important new law breaking down a key regulatory barrier to new housing construction. The CalMatters website has a helpful summary:

A decade-spanning political battle between housing developers and defenders of California's preeminent environmental law likely came to an end this afternoon with only a smattering of "no" votes.

The forces of housing won.

With the passage of a state budget-related housing bill, the California Environmental Quality Act will be a non-issue for a decisive swath of urban residential development in California.

In practice, that means most new apartment buildings will no longer face the open threat of environmental litigation.

It also means most urban developers will no longer have to study, predict and mitigate the ways that new housing might affect local traffic, air pollution, flora and fauna, noise levels, groundwater quality and objects of historic or archeological significance.

And it means that when housing advocates argue that the state isn't doing enough to build more homes amid crippling rents and stratospheric prices, they won't — with a few exceptions — have CEQA to blame anymore.

"Saying 'no' to housing in my community will no longer be state sanctioned," said Assemblymember Buffy Wicks, an Oakland Democrat who introduced the CEQA law as a separate bill in March. "This isn't going to solve all of our housing problems in the state, but it is going to remove the single biggest impediment to building environmentally friendly housing…."

[F]or years, the building industry and "Yes in my backyard" activists have identified the law as a key culprit behind California's housing shortage. That's because the law allows any individual or group to sue if they argue that a required environmental study isn't accurate, expansive or detailed enough. Such lawsuits — and even the mere threat of them —add a degree of delay, cost and uncertainty that make it impossible for the state to build its way to affordability, CEQA's critics argue.

California's regulatory barriers to housing construction are what has put the state at the epicenter of the nation's housing crisis, and CEQA is a big part of the reason why. Exclusionary zoning will remain a serious problem in much of the state, blocking full realization of the gains from CEQA reform. But curtailing CEQA is still a major step in the right direction. The statute was long a powerful tool for "NIMBY" ("not in my backyard") opponents of new housing construction. California NIMBYs have not been totally defanged. But they are much less potent than before.

In a recent Texas Law Review article coauthored with Josh Braver, we argue that exclusionary zoning and other similar restrictions that greatly limit housing construction violates the Takings Clause of the Fifth Amendment, and outline ways in which a combination of litigation and political action can be used to combat them.  See also our much shorter non-academic article on the same topic, in the Atlantic.

Academic Freedom

Florida Can Forbid Transgender High School Math Teacher From Using Feminine Pronouns to Refer to Herself in Class, 11th Circuit Says

The appeals court vacated a preliminary injunction that had been based on her First Amendment rights

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In a case of first impression, a split panel of the Eleventh Circuit decided today that a transgender high school teacher's speech rights were not violated when the state of Florida required her not to refer to herself in class by her preferred feminine pronouns ("she," "her," "hers") or honorifics ("Ms.," "Mrs.," "Miss") (See also Eugene's post about the decision below.)

From the majority opinion, here is the background:

Katie Wood teaches algebra at a public high school in Florida. Wood was born a biological male but now identifies as a woman. After transitioning in 2020, Wood began using the honorific "Ms." and the gendered pronouns "she," "her," and "hers." Importantly for present purposes, she wrote "Ms. Wood" and "she/her" on her classroom whiteboard and syllabi, she identified herself as "Ms. Wood" in her communications with students, and she wore a pin that said "she/her." Then, in 2023, Florida enacted Fla. Stat. § 1000.071, which states, in pertinent part, that "[a]n employee or contractor of a public K-12 educational institution may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex." Fla. Stat. § 1000.071(3).

In practice, if she used any pronouns or honorifics in class to refer to herself, Florida required her to use masculine ones. That is, it required her to misgender herself. If that's not quite the same thing as compelled speech because she could try to avoid using any pronouns or honorifics, it's the next worst thing. The majority continued:

Wood sued, challenging § 1000.071(3)'s constitutionality. In particular, she sought to enjoin enforcement of the statute on the ground that it violated her First Amendment right to free speech. The district court granted her request for a preliminary injunction. In so doing, the court held that Wood had shown a substantial likelihood of success on the merits of her First Amendment challenge. As relevant here, the court grounded its holding on the premise that when Wood used the identifiers "Ms.," "she," "her," and "hers" in interactions with students, she spoke not as a government employee but rather as a private citizen. See Wood v. Fla. Dep't of Educ., 729 F. Supp. 3d 1255, 1279 (N.D. Fla. 2024). That was so, the court reasoned, because her preferred honorific and pronouns "owe[their] existence not to her professional responsibilities as a math teacher, but instead to her identity as a woman—an identity that remains true to Ms. Wood both inside and outside the classroom." Id. Having concluded that Wood spoke as a citizen, the court went on to hold that her speech touched on a "matter of public concern" and that her interest in expressing herself outweighed the state's interest in promoting workplace efficiency. Id. at 1279–84.

The majority did not itself misgender the plaintiff.  But it held that Florida was not required to extend this basic courtesy to her, even when she referred to herself.  The majority reasoned as follows:

When a public-school teacher speaks "in the course of performing [her] job"—i.e., "speaking to [her] class in [her] classroom during class hours," Johnson, 658 F.3d at 967—she does so pursuant to her official duties and therefore speaks as a government employee, not a citizen. The speech at issue here—in which Wood verbally provided her preferred honorific and pronouns, wrote them on her whiteboard and syllabi, and wore a "she/her" pin—fits that description precisely….

To be sure, as the dissent correctly notes, the relevant caselaw—both our own and our sister circuits'—expressly permits government regulation of a teacher's curricular speech. But the inverse—that the First Amendment forbids regulation of a teacher's in-class noncurricular speech—doesn't follow.

I think that's right as far as it goes: it can't be the case that the First Amendment categorically protects any and all noncurricular teacher speech in the curricular setting. But that doesn't mean it's open season on all noncurricular speech in the curricular setting.

The dissent rebutted the majority's conclusion that the teacher's use of personal pronouns is fully regulable because it is necessarily government speech that happens in the classroom:

[A] teacher's preferred personal title and pronouns simply do not bear any of the
characteristics of government speech. Personal titles and pronouns have not traditionally been used to convey a government message; there is no evidence that the public associates them with the government; and they are not manufactured, owned, or designed by the government…

To the extent that Florida tries to shoehorn the use of preferred personal titles and pronouns into the curricular bucket, that attempt fails. The Supreme Court has generally defined a school's curriculum as activities or matters that are "supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). A teacher's preferred personal title and pronouns simply do not fit into this understanding….

We should be wary of holding that everything that happens in a classroom constitutes government speech outside the ambit of the First Amendment. Those who wield the power of the government today and are on one side of the gender and culture wars will be the ones at risk of being compelled to speak against their beliefs, or silenced, when their opponents are in charge. Today's opinion
will then not look as attractive.

The dissent next asserted that the Florida law amounts to viewpoint discrimination:

The statute at issue here, § 1000.071(3), has nothing to do with curriculum and everything to do with Florida attempting to silence those with whom it disagrees on the matter of transgender identity and status. Florida cannot justify its viewpoint discrimination by relying on the very reason that such discrimination is constitutionally suspect—that it gets to decide what speech is permissible (the speech it likes) and what speech is prohibited (the speech it disagrees with).

I'm not sure it's quite right that the Florida law is viewpoint discrimination, although the statute does label the prohibited speech as "false." But it's certainly a form of content-based speech regulation.  Under it, the teacher may use the state's approved pronouns to refer to herself but not the disapproved ones. The dissent concluded:

The First Amendment I know, despite its many different (and sometime dizzying) doctrinal lines, would at least require some judicial scrutiny, some balancing of interests, before Florida is allowed to discriminate on the basis of viewpoint. By mistakenly characterizing a teacher's use of her preferred title and pronouns in the classroom as government speech, the majority has foreclosed any meaningful First Amendment review of § 1000.071(3). That is unfortunate, and I respectfully dissent.

My initial reaction is that the dissent overall has the better of the argument.

As I piece together the legal landscape in these fraught times for transgender people and for free speech, putting this decision together with decisions like Meriwether v. Hartop (6th Cir. 2021) (concluding a college professor had a free speech right to misgender his students), it seems school teachers have a First Amendment right against state policy to misgender their students in the classroom but have no First Amendment right against state policy not to misgender themselves in the classroom. And I don't think the differences between the outcome in this decision and the outcome in Meriwether can be chalked up to the differences between the high school and college settings. In fact, the regulatory interests of the state may have been greater in Meriwether because that case did not deal only with the speaker's own dignitary and expressive interests but directly involved the dignitary interests of the third parties (the students) he was addressing, a factor the Sixth Circuit did not even consider.

I teach my students that free speech protects the rights of high schools students to form LGBT students groups and Christian ones, that protection against compelled speech allows people to salute the flag and to refuse to salute (or even to burn) it, and that it protects them when they come out as gay or as evangelical. Laws like the one in Florida, and decisions like the Eleventh Circuit's, complicate that story of evenhandedness and hinder the protection of currently unpopular opinion.

(HT: Casey Pick for alerting me to the decision.)

Freedom of Expression Does Not Include the Right to Trespass

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On Sunday, I wrote, with regard to my new article on freedom of speech and college antisemitism:

Coauthor David L. Bernstein and I spend a fair amount of space recounting examples of antisemitic campus activity that did not involve protected speech, such as vandalism, classroom and library disruptions, threats, one-on-one verbal harassment, assault, and more. Some readers of the draft paper questioned why a paper on free speech and antisemitism talking about things that don't constitute free speech.

A major reason for doing so is that David L. and I saw that many commentators were portraying the complaints about antisemitism on campus and the antidiscrimination obligations of universities under Title VI as if these complaints solely or primarily revolved around controversial political speech such as "From the River to the Sea, Palestine will be free."

Another reason we dwelled on activities that did not involve protected speech is to emphasize that such activities are not, in fact, protected speech. This should be obvious, and yet…

As I noted yesterday, federal judge Gerald McHugh described a three-day illicit "encampment" at Haverford College as the college allowing "protestors to freely express themselves for three days."

Perhaps more egregiously, last fall Professors Evelyn Douek and Genevieve Lakier wrote:

Administrators have also turned to Title VI to justify their decision-making, including their sometimes significant repression of student speech. For example, in April 2024, Columbia University's then-President Minouche Shafik referred to Title VI to justify her (very controversial) decision to send in the police to break up Columbia's protest encampment.

Breaking up a protest encampment is not only not a "significant repression of student speech," it's not a repression of student speech at all. The students were free to speak; the university had the right, and arguably the legal obligation, to enforce content-neutral time, place, and manner restrictions on the students, and also to stop the students from "occupying" university property, an illegal trespass. Nothing, meanwhile, was stopping the students from tabling, handing out flyers, holding up signs, giving speeches or chanting in ways that didn't disrupt university functions, or otherwise speaking their Hamasnik hearts out.

As with Judge McHugh, I am confident that at least in certain contexts Professors Douek and Lakier would agree that enforcing content-neutral rules against speakers does not violated free speech rights. I doubt, for example, they would defend the freedom-of-expression-right of students to camp out on their front lawns or in their law school offices on behalf of "Palestine" or anything else.

Free Speech

Florida Teachers Have No First Amendment Right to Indicate Their Preferred Pronouns and Honorifics in Class

So an Eleventh Circuit panel held today, by a 2-1 vote.

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Excerpts from the 9,400-word Wood v. Fla. Dep't of Ed., decided today by Eleventh Circuit Judge Kevin Newsom, joined by Judge Andrew Brasher:

Katie Wood is a transgender woman who teaches at a public high school in Florida. Two years ago, the state enacted Fla. Stat. § 1000.071(3), which, as applied to Wood, prohibits her from using the honorific "Ms." and the gendered pronouns "she," "her," and "hers" in exchanges with students during class time. Wood sued to enjoin the enforcement of § 1000.071(3) against her. The district court granted Wood a preliminary injunction, finding it substantially likely that the law violates her First Amendment right to free speech.

We disagree. Because we hold that Wood hasn't shown a substantial likelihood that § 1000.071(3) infringes her free-speech rights, we vacate the preliminary injunction and remand the case to the district court for proceedings consistent with this opinion….

Katie Wood teaches algebra at a public high school in Florida. Wood was born a biological male but now identifies as a woman. After transitioning in 2020, Wood began using the honorific "Ms." and the gendered pronouns "she," "her," and "hers." Importantly for present purposes, she wrote "Ms. Wood" and "she/her" on her classroom whiteboard and syllabi, she identified herself as "Ms. Wood" in her communications with students, and she wore a pin that said "she/her." Then, in 2023, Florida enacted Fla. Stat. § 1000.071, which states, in pertinent part, that "[a]n employee or contractor of a public K-12 educational institution may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex." …

We begin—and find that we can end—with the question whether Wood has shown a likelihood of success on the merits of her First Amendment challenge. As relevant here, the First Amendment (as incorporated through the Fourteenth) prohibits state legislatures from "mak[ing any] law … abridging the freedom of speech." The First Amendment's protections extend to public-school teachers and students, "neither of whom shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

But a teacher's right to speak is not without limits. One reason is that "[i]n addition to being [a] private citizen[ ]," a teacher is "also [a] government employee[ ] paid in part to speak on the government's behalf and convey its intended messages."

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Immigration

Federal Court Rules Against Trump's "Invasion" Executive Order

But, notably, the court chose not to rule on the issue of what qualifies as an "invasion."

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AI-generated image.

Today, in Refugee and Immigrant Center for Legal and Educational Services v. Noem, US District Court Judge Randolph Moss issued an important decision blocking Donald Trump's January 20 "invasion" executive proclamation, which sought to foreclose nearly all pathways to legal migration and asylum applications for migrants crossing the southern border. Trump claimed the order is authorized by both federal statutes and the Guarantee Clause of Article IV, Section 4 of the Constitution, which states: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion."

Judge Moss rejects both grounds for the order, in a long and detailed 128-page ruling. Interestingly, however, he rejects the administration's constitutional argument without defining what qualifies as an "invasion." Here is his summary of the decision:

For the reasons that follow, the Court concludes that neither the INA [statute] nor the Constitution grants the President or the Agency Defendants authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extra-regulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum or withholding of removal and without complying with the regulations governing CAT protection. The Court recognizes that the Executive Branch faces enormous challenges in preventing and deterring unlawful entry into the United States and in adjudicating the overwhelming backlog of asylum claims of those who have entered the country. But the INA, by its terms, provides the sole and exclusive means for removing people already present in the country, and, as the Department of Justice correctly concluded less than nine months ago, neither § 1182(f) nor § 1185(a) provides the President with the unilateral authority to limit the rights of aliens present in the United States to apply for asylum. Nor can Article II's Vesting Clause or Article IV's Invasion Clause be read to grant the President or his delegees authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted and the regulations that the responsible agencies have promulgated. As the Framers understood, "every breach of the fundamental laws," even when "dictated by necessity," undermines respect for the rule of law and "forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent or palpable." The Federalist No. 25, at 167 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Here, nothing in the INA or the Constitution grants the President or his delegees the sweeping authority asserted in the Proclamation and implementing guidance.

On the constitutional argument regarding "invasion," Judge Moss chose not to address the issue of what qualifies as an "invasion," instead ruling that the Guarantee Clause doesn't grant the president any relevant independent authority:

Defendants' reliance on the Constitution's guarantee that the "United States . . . shall
protect each [state] against Invasion," U.S. Const., art. IV, § 4 (the "Invasion Clause"), fails for the same reasons. Defendants themselves place little or no independent reliance on the Invasion Clause and, instead, merely suggest that the President plays some role in protecting the States "against Invasion…." even assuming that is correct, Defendants do not dispute that Congress plays the primary role in crafting the governing rules and that, under the Youngstown framework, see Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring), the President may not act in derogation of the laws that Congress has enacted. Although relevant precedent is sparse, the Supreme Court has opined that the responsibility for "carry[ing] into effect" the Guarantee Clause "is primarily a legislative power," Texas v. White, 74 U.S. 700, 701 (1868), overruled on other grounds by Morgan v. United States, 113 U.S. 476 (1885), and that it "rest[s] with Congress . . . to determine . . . the means proper to be adopted to fulfill th[e] guarantee" against "domestic violence," Luther v. Borden, 48 U.S. 1, 43 (1849). There is no reason to believe that the Invasion Clause, which appears in the very same sentence of Article IV as these provisions, allocates responsibility any differently. That conclusion finds further support in Article I of the Constitution, moreover, which grants Congress the power to "provide for calling forth the Militia to . . . repel Invasions," U.S. Const., art. I, § 8, cl. 15, leaving little doubt that responsibility under the Invasion Clause is, at the very least, shared between the political branches. Finally, it is far from clear that the Invasion Clause confers any power to act that is not found elsewhere in Articles I and II of the Constitution. Unlike Article IV, Section 4, which speaks in terms of the responsibility of "[t]he United States" to protect the States, Articles I and II speak in terms of the "Power[s]" vested in the Congress and the President to perform their constitutional responsibilities…. If the President lacks authority under the Vesting Clause of Article II to supplant the INA with an alternative set of immigration laws, that power cannot be found in Article IV, Section 4.

I think this is correct as far as immigration policy goes. The president cannot override congressional mandates and impose his own new migration policies merely by proclaiming the existence of an "invasion." An invasion does not give the president blanket authority to impose new immigration restrictions.

But I am skeptical of the idea that the Invasion Clause component of the Guarantee Clause never gives the president any independent authority. In the event of a genuine "invasion" - i.e., an organized military attack - the president would surely have at least some authority to respond, even in the absence of specific congressional authorization. In that situation, the Invasion Clause reinforces his powers as Commander-in-Chief of the armed forces.

For that reason, I think the better approach to this issue would be to rule that illegal migration and cross-border drug smuggling do not qualify as an "invasion." Rather, as James Madison wrote in addressing this very issue,  in his Report of 1800, an "[i]nvasion is an operation of war." I address the meaning of "invasion" in much greater detail here and here.

The rest of Judge Moss's long and detailed opinion addresses the statutory issues, and explains why he is granting a class certification, among other things. I will not attempt to go over these issues in detail here. But his general conclusion strikes me as correct. No statute gives the president the "authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted."

It is also notable that Judge Moss emphasizes that immigration restriction is primarily a congressional power, not an executive one. I agree on that, as well, assuming the power belongs to the federal government at all (which, under the original meaning of the Constitution,  it mostly does not). That principle lends support to a possible nondelegation challenge to Trump's massive new travel ban order.

This case should be distinguished from ongoing litigation over Trump's invocation of the Alien Enemies Act of 1798, which also involves the meaning of "invasion," among other issues. On that, see my recent amicus brief, on behalf of the Brennan Center, Cato Institute, Prof. John Dehn, and myself (coauthored with Katherine Yon Ebright and Leah Tulin).

Obviously, this litigation will continue on appeal.

Free Speech

Federal Judge Sues for Libel, Court Calls (Some) Arguments on His Side "Frivolous" and "Absurd"

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The decision, by Judge Roy Altman (S.D. Fla.) is Monday's Block v. Matesic; for more on the plaintiff judge (Judge Frederick Block (E.D.N.Y.)), see this N.Y. Times article, also from Monday.

The original libel claim has to do with the plaintiff judge's battles related to his Florida condominium association board, of all things. A few excerpts, from the discussion of plaintiff's arguments that defendant must have known that the statements about plaintiff were false or at least likely false (the so-called "actual malice" test):

[1.]

[W]e use "Florida's substantive law" to determine whether the words of the December 18 Email are competent evidence of express malice. As it happens, they aren't.

Block says that the "letter itself evinces ill-will" because the Defendants referred to him as "disgruntled" and said that he was "regurgitating" certain information. This "utterly gratuitous" language, Block says, reveals that "the publication's true, primary intent was to discredit [Block's] analysis and defame him by way of retribution." Filling in the gaps for Block, the reasoning seems to be that the Defendants' words show their ill intent towards him, and that ill intent (he seems to be saying) evinces their actual malice. Block doesn't argue—nor could he—that the words "disgruntled" and "regurgitate" in any way demonstrate the Defendants' knowledge of the falsity of their statement. We therefore take him to be arguing that the Defendants' word choice shows that the Defendants intended the defamatory implication of the December 18 Email.

Unfortunately for Block, his argument is absurd. As we noted, "disgruntled" means "unhappy and annoyed." Was Block disgruntled? Yes—obviously. And to "regurgitate" means "to throw or pour back or out from or as if from a cavity." "Typically," it refers to something— say, information—that has "been taken in, at least partially digested, and then spit back out." We don't think that "regurgitate" connotes something strictly negative, but Block's argument isn't more persuasive even when we infer (as we must) that the Defendants meant it disparagingly. "Strong, angry, or intemperate words do not alone show express malice." Under Florida law, "words themselves" inherently "demonstrate express malice" only when they are "so extreme."

Obviously, to satisfy a standard that regards mere garden-variety "extreme" words as insufficient, the words must be genuinely incendiary [citing cases which did involve incendiary language -EV] …. "Disgruntled" and "regurgitated" pale in comparison. And Block doesn't cite a single case in which any court treated such anodyne words as evidence of express (let alone actual) malice. In fact, faced with much nastier statements, the cases do the opposite.

[2.]

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Do Arrest Warrants Have a Diligence Requirement?

Tracing the doctrine back.

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The Fourth Circuit recently handed down a ruling, United States v. Ordonez-Zometa, that raised a really interesting question: Does the Fourth Amendment require officers to exercise diligence in executing an arrest warrant?  That is, if there's an arrest warrant out for a person, are officers required to make the arrest when they can, or soon after that?  And if they can delay making the arrest, how long a delay is allowed?

What makes this particularly interesting to me is that I went in thinking there was no such diligence requirement; the Fourth Circuit said there is such a requirement; but when I looked back into the history of the caselaw, I tended to think the Fourth Circuit's diligence requirement may just be a vestige of long-overturned caselaw that no one realized is now obsolete.

Here are the details, for the law nerds interested in the puzzle to be solved here.

In the new ruling, officers obtained an arrest warrant for Ordonez-Zomet in a homicide investigation.  The next day, they executed the arrest while he was in a car, leading to a seizure and search of the car and evidence.  As I understand the claim, Ordonez-Zometa is arguing that it was a Fourth Amendment violation for the officers to wait until Ordonez-Zometa was in a car to carry out the arrest warrant.  That was problematic, the notion seems to be, because it gave officers the power to seize and later search the car under the search incident to arrest exception.

In an opinion by Judge King, the Fourth Circuit started off by saying yes, there is a diligence requirement, but that it was not violated here:

The record demonstrates that the district court did not err in denying his suppression motion on the basis of undue delay. To be sure, police officers should act with diligence in the execution of an arrest warrant. See United States v. Weaver, 384 F.2d 879, 880 (4th Cir. 1967). And, here, they did just that: The warrant for Ordonez-Zometa's arrest was issued at 7:12 p.m. on March 12, 2019, and it was executed less than 24 hours later — at 6:50 p.m. on March 13, 2019. See J.A. 110, 1920. That should end the inquiry. Cf. Weaver, 384 F.2d at 880-81 (upholding execution of an arrest warrant after a delay of more than two weeks).

Further, the court adds, you can't really evaluate the reasons for undue delay because modern Fourth Amendment law doesn't usually allow an inquiry into an officer's subjective thoughts:

In this appeal, Ordonez-Zometa urges our Court to look past the objective facts to examine and second-guess the officers' decision-making — specifically, why the officers chose to execute the arrest warrant when and where they did so. But this proposition runs headlong into the well-settled principle of Fourth Amendment law of objective reasonableness. This Court does not, and should not, inquire into the strategic motivations of arresting officers. See Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011); see also Brigham City, 547 U.S. at 404.

To be sure, we have cautioned against law enforcement intentionally withholding the execution of an arrest warrant in hopes of gaining access to a location they could not otherwise search. See Weaver, 384 F.2d at 880. But that principle does not license us to disregard the rule that a Fourth Amendment analysis does not turn on the subjective motives of the officers involved. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 764 (2005) (recognizing discretion police possess in deciding when and how to execute warrants). Indeed, the courts have "almost uniformly rejected invitations to probe subjective intent." See al-Kidd, 563 U.S. at 737 (internal quotation marks omitted). And for good reason: "the Fourth Amendment regulates conduct rather than thoughts." Id. at 736 (citing Bond v. United States, 529 U.S. 334, 338 n.2 (2000)).

I found this discussion fascinating because I'd generally been of the understanding that there is no diligence requirement for arrest warrants. As I have thought of it, arrest warrants do two things.  First, they establish probable cause that justifies an arrest, negating the need for a post-arrest hearing into probable cause that would otherwise be needed promptly, under Gerstein v. Pugh.  And second, they permit entry into a person's home to arrest them when there is reason to believe the person is home, under Payton v. New York. But arrests generally don't require warrants.  So I've been of the impression that there's no constitutional duty to carry out an arrest when an officer has the opportunity to do so.  Officers can do that, but they don't need to.

I was curious: Where did this apparent requirement come from? Read More

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