From Sixth Circuit Judge Julia Gibbons, sitting by designation on M.D. Tenn., in today's Welty v. Dunaway:
[A Tennessee law, § 39-15-201,] makes it a crime to "intentionally recruit[ ] … a pregnant unemancipated minor" in Tennessee "for the purpose of" obtaining an abortion that would be illegal in Tennessee. But § 39-15-201 does not merely bar recruitment of minors to facilitate illegal abortions in Tennessee; it bars recruitment of minors to facilitate abortions "regardless" of where the procedure occurs. In other words, the law prohibits recruiting an out-of-state abortion that is entirely legal in that state, so long as it would be illegal in Tennessee….
Section 39-15-201 contains a few exceptions, including one for "the provision of a medical diagnosis or consultation regarding pregnancy care of an unemancipated minor," as long as that consultation does not involve an actual attempt to terminate the pregnancy or arranging for travel to do so. The statute also exempts four classes of individuals: a pregnant minor's parent or legal guardian; a person who has obtained consent from such parent or guardian; common carriers transporting passengers in the ordinary course of business; and emergency medical personnel acting within the course of their duties. The statute contains no exception, however, for family members besides parents or guardians—an unemancipated minor's aunt or uncle, adult sibling, or grandparent could be prosecuted for "recruiting" the minor to procure an abortion….
The court concluded that "recruiting" including persuasion:
The ordinary meaning of "recruit," while broad, is sufficiently clear "to give ordinary people fair notice of the criminalized conduct." Certain speech is almost certainty prohibited recruitment under the provision: for example, a pregnant minor's 20-year-old sister, hoping to persuade her younger sister to obtain an abortion, says, "if I were in your shoes, I would get an abortion" and then tells her where to obtain an out-of-state abortion.
And, given this, the court concluded that the prohibition was unconstitutional:
After being ilegally deported and imprisoned in El Salvador, they will now be sent back to the oppressive regime they fled in the first place, in exchange for ten Americans detained by the Venezuelan government.
A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025. (El Salvador Presidential Press Office)
Some 252 Venezuelans illegally deported by the Trump Administration to imprisonment in El Salvador have now been sent back to Venezuela, in exchange for the release of ten Americans detained by the Venezuelan government. Trump had invoked the Alien Enemies Act of 1798 to do the deportations.
This is a bad deal on many levels: It incentivizes further hostage-taking by Venezuela, it returns people who fled oppression back to the very same regime that oppressed them, and it certainly does not stop the administration's illegal and unjust invocation of the Alien Enemies Act.
I've said it before (e.g. - here and here), and I will say it again: hostage exchanges are a terrible idea, because they incentivize more hostage-taking. This deal is likely to incentivize Venezuela's socialist dictatorship to seize more Americans.
There was a time when conservative Republicans would have condemned efforts to return victims of socialism to their oppressors. No longer. But it remains unjust, nonetheless.
I suppose one can argue this is less bad than other hostage exchanges because, unlike, say, released Hamas terrorists or Russian covert operatives, it is highly unlikely the Venezuelans sent back under this deal will go on to harm the US. That is true precisely because the Trump Administration is lying about their supposed gang affiliations! It's a valid point. But not nearly enough to justify this sordid deal, or the illegal deportations leading up to it.
The deal also further reveals what has been clear for some time: the Trump administration lied in court when it claimed the Venezuelans deported to El Salvador were under Salvadoran control, and the US had no way to get them out. In reality, they were detained solely at US behest, and the Salvadorans released them as soon as the US asked. This has been clear for a long time, but is now even more so. Courts should take note, and reject similar administration assertions with respect to any other migrants deported to imprisonment in El Salvador, now or in the future.
The deal also will not put an end to Trump's illegal use of the AEA as a tool for peacetime deportation. Litigation over his further attempts to deport people under the Act is ongoing in multiple federal courts, and several have already ruled against them. For the reasons why these deportations illegal, see the Fifth Circuit amicus brief in W.M.M. v. Trump that I coauthored on behalf of the Brennan Center, the Cato Institute, legal scholar John Dehn, and myself. See also my earlier writings on the AEA here, here, here, and here.
To briefly summarize, the key point is that AEA may be invoked only in the event of a declared war or "invasion" or "predatory incursion" by a foreign nation or government against U.S. territory, and no such thing has happened here. In addition, Trump's AEA deportations to imprisonment in El Salvador are also blatant violations of the Due Process Clause of the Fifth Amendment.
UPDATE: I suppose I should emphasize I am not suggesting these Venezuelans should have been kept in imprisonment in El Salvador. Rather, they should never have been deported in the first place, and once illegally deported and imprisoned, should have been returned to the US. They also deserve compensation for their illegal imprisonment and resulting pain and suffering.
UPDATE #2: In a court filing today, the Trump Administration claims that Venezuelan dictator Nicolas Maduro has agreed to allow the Venezuelan migrants returned to his control under this deal to go back to the US if 1) a court orders it, 2) the US government is willing to "facilitate" their return, and 3) the person in question agrees. We will see if this is actually true or not, and if so whether the admnistration actually does the necessary "facilitation." Given the awful track records of these parties, there is reason to suspect that the administration, the Maduro regime, or both, may be lying again.
President Donald Trump has had an extraordinary first six months in office. To mention just a few of the great things he has done: (1) President Trump bombed Iran to prevent the most terrorist-friendly nation in the world from getting a nuclear bomb; (2) he then ended the Israeli-Iranian war in 12 days, and stopped a war from starting between two nuclear-armed powers, Pakistan and India, which is a lot more than President Obama ever did to win a Nobel Peace Prize; (3) he has eliminated what had been a torrent of illegal aliens entering the U.S. by crossing the Mexican-American border, which President Biden had allowed; (4) he cut taxes by 4.5 trillion dollars from 2025 through 2034; (5) he is succeeding where even President Reagan failed in eliminating the unconstitutional Department of Education; (6) his Justice Department appears to have persuaded six Supreme Court Justices to recognize that there can't be "independent agencies" in the sense of agencies exercising executive power that are independent of control by the elected executive, agencies that have plagued us since 1935; (7) he has taken on the Deep State by firing more than 50,000 civil service employees as of today; (8) he is already, in his second term, beginning to nominate excellent new federal judges, such as Jennifer Mascott, whom he intends to nominate to the Third Circuit; (9) his Justice Department has persuaded the Supreme Court to end nationwide injunctions; and (10) he has gotten rid of thousands of regulations hampering the oil and gas industries and most other private sector businesses as well.
Given these genuinely important policy decisions—even his opponents will agree that they are important—and others that are currently being considered, the flare-up over the Jeffrey Epstein files is a pointless distraction. Epstein committed suicide in prison six years ago. Jeffrey Epstein is dead and deservedly so. His principal partner in crime, Ghislane Maxwell, was sentenced to twenty years in federal prison, which means she will be in jail until she is 81 years old. President Trump's Attorney General Pam Bondi, who I think is an excellent and experienced prosecutor, has investigated the Epstein matter and found (1) no client list of powerful people that Epstein and Maxwell had worked with; and (2) no evidence that Epstein was murdered six years ago rather than having committed suicide.
There is no reason to doubt Attorney General Bondi's findings. If there had been any evidence that Donald Trump was an Epstein client, would President Biden's Justice Department and FBI have kept it quiet, with no disclosure or leak?
Nor would appointing a Special Counsel help matters. First, as a legal matter the Justice Department's regulation providing for the appointment of Special Counsels is unconstitutional, as Gary Lawson and I explained in Why the Appointment of Robert Mueller Was Unlawful, 95 Notre Dame Law Review 87 (2019).
Second, as Justice Scalia observed in Morrison v. Olson (1988), appointment of Special Counsels is awful policy. With a Special Counsel, an extraordinary amount of money and lawyerly attention gets focused on one matter to the exclusion of other legal criminal claims that might be brought that are much more meritorious. As Justice Scalia noted,
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
CA7 friends: The Short Circuit team is heading to downtown Chicago on Sunday, August 17 for a live recording of the podcast on the eve of the Seventh Circuit Judicial Conference. Come watch Sarah Konsky of UChicago Law and Christopher Keleher of Keleher Appellate Law hash things out with us. Click here to learn more.
New on the Short Circuit podcast: What's the difference between legit multi-level marketing and illegit pyramid schemes? Sometimes it's hard to tell.
Accused 9/11 co-conspirators have been in pretrial proceedings before a military commission in Guantanamo Bay for more than two decades. Gov't offers them a plea deal that will spare them the death penalty. The co-conspirators take the deal. Sec'y of Defense: Takesies backsies! Military Judge: No takesies backsies! D.C. Circuit (over a vehement 75-page dissent): Mandamused!
Citizen journalist films open garage at a Secret Service building. Two agents order him to stop and, when he refuses to identify himself, slap cuffs on him. A third agent shows up and tells the others the man is allowed to film. The man sues for violations of his First and Fourth Amendment rights. D.C. Circuit: But he brought Bivens claims so you know how that goes.
Maine voters, upset with the construction of an energy-transmission line through the state that would connect Canadian electricity to Massachusetts, try to stop the project. When that fails, they propose a ballot initiative to use eminent domain to seize the assets of the two Maine corporations building the line. When that fails, they propose a ballot initiative to prohibit American corporations from contributing to ballot initiatives if they have more than 5% foreign ownership. That passes and the two corporations sue. First Circuit: And the law should be preliminarily enjoined. Silencing corporations with 95% American ownership isn't narrowly tailored to preventing foreign influence in Maine elections. Read More
From today's opinion by Judge David G. Estudillo (W.D. Wash.) in Etienne v. Ferguson:
At present, Washington clergy who learn of child abuse or neglect while acting within their official supervisory capacity are required to report such abuse to public authorities. Only information obtained "as a result of a privileged communication" is exempted from this mandatory reporting requirement. Effective July 27, 2025, however, Washington law [SB 5375] will require clergy to report child abuse or neglect regardless of how they learn about such information…. The Court concludes Plaintiffs are likely to succeed on the merits of their Free Exercise Clause challenge ….
There is no question that SB 5375 burdens Plaintiffs' free exercise of religion. In situations where Plaintiffs hear confessions related to child abuse or neglect, SB 5375 places them in the position of either complying with the requirements of their faith or violating the law. In this way, the statute "affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs."
[The law must therefore be judged under the "strict scrutiny" test unless it is neutral and generally applicable.-EV] [A] law is "not neutral and generally applicable, and therefore trigger[s] strict scrutiny … [if it] treat[s] any comparable secular activity more favorably than religious exercise." Tandon v. Newsom (2021)….
SB 5375 modifies existing law solely to make members of the clergy mandatory reporters with respect to child abuse or neglect. However, other groups of adults who may learn about child abuse are not required to report. Parents and caregivers, for example, are not mandatory reporters.
Moreover, the Washington legislature passed Substitute House Bill 1171 ("SHB 1171")—"AN ACT Relating to exempting attorney higher education employees from mandated reporting of child abuse and neglect as it relates to information gained in the course of providing legal representation to a client"—around the same time as it passed SB 5375….The twin passage of SHB 1171 and SB 5375 appears to be a textbook example of "permitting secular conduct that undermines the government's asserted interests in a similar way" to religious conduct that is regulated. The government interest at issue in both statutes—protecting children from abuse and neglect—is the same. Nevertheless, one law eliminates the privilege for clergy while the other expands the privileges available to secular professionals. "The underinclusion is substantial, not inconsequential" here.
Margot Cleveland at The Federalist obtained a copy of a memorandum prepared by the Judicial Conference of the United States. This group includes the Chief Justice of the United States, the Chief Judges of the Federal Courts of Appeals, as well as certain district court judges. Margot did not reveal who authored the memorandum.
To be clear, I have no love for the Judicial Conference. I think they completely botched the judicial reassignment policy. And these august judges haven't said a peep about Judge Pauline Newman's stealth impeachment. Still, I am profoundly troubled by leaks. I don't like leaks from the Supreme Court. And I don't like leaks from other judicial bodies. The deliberations of the judicial conference should more transparent. Trying to figure out what is going on resembles Kremlinology. But as things stand now, they aren't transparent. Cleveland does not say how she got the document. I imagine it would have had to come from a judge, or perhaps someone on a judge's staff. No matter how you slice it, this leak is bad.
I suppose if I am being consistent, I should call on the presiding officer of the entity that had the leak to resign. But I repeat myself.
Now, onto the substance. Here is how Cleveland describes the memorandum:
During the week of March 11, 2025, members of the Judicial Conference met in Washington, D.C., for the first of its two regular meetings. . . .
In a memorandum obtained exclusively by The Federalist, a member of the Judicial Conference summarized the March meeting, including a "working breakfast" at which Justice Roberts spoke. According to the memorandum, "District of the District of Columbia Chief Judge James Boasberg next raised his colleagues' concerns that the Administration would disregard rulings of federal courts leading to a constitutional crisis."
"Chief Justice Roberts expressed hope that would not happen and in turn no constitutional crisis would materialize," according to the memorandum. The summary of the working breakfast added that Chief Justice Roberts noted that "his interactions with the President have been civil and respectful, such as the President thanking him at the state of the union address for administering the oath."
I have a few tentative observations.
First, I find it fascinating that Chief Justice Roberts relayed his conversation from the State of the Union. If I had to guess, Trump exchanged these kind words during the pleasantries as he entered the Chamber. But, as readers recall, Chief Justice Roberts bolted out of the chamber after Trump finished speaking. And Justice Barrett gave Trump a sideways glance after shaking his hand.
Second, I find it even more fascinating that Roberts is serving as a voice of reason, pushing back at the notion that he doesn't think Trump will ignore court orders. Roberts did flag this issue in his end-of-year message, but he is at least giving Trump some space.
Third, it seems clear that Judges like Boasberg lost trust in Trump, before any cases were assigned to him. And that lack of trust pervaded his Saturday emergency TRO hearing, where he ordered planes to turn around. If Boasberg followed a presumption of regularity, he would not have issued such an order.
Margot suggests this memorandum reveals bias on the part of Judge Boasberg and others. I suspect this report will give rise to a motion to recuse. I would like to see the full memorandum. And perhaps in the interest of full disclosure, Judge Boasberg should reveal his position here.
Words of wisdom from Judge Jennifer Dorsey (D. Nev.) last week in Naessens v. Breslin:
[The self-represented plaintiff] takes issue with an order of mine in an unrelated case calling a pro se plaintiff's filings "wholly nonsensical" and argues that such language "suggests an undue predisposition against unrepresented parties."
Naessens … fails to show that I treated him or his allegations unfairly because of his pro se status. At times, filings by pro se litigants and attorneys alike are wholly nonsensical, but pointing that out does not supply a legal basis for recusal….
Pro se plaintiff … contends … that he has an undisclosed mental-health condition that made him incompetent to represent himself during this lawsuit….
Naessens … argues that he was "diagnosed with a serious mental-health condition and lacked the capacity to proceed pro se without a judicial determination of competence or court-appointed representation." He asserts that the court should have sua sponte inquired into his competency and appointed a guardian ad litem to represent his interests. He contends that the failure to do so violated his constitutional rights.
Naessens cites no authority for the notion that this court should have, unprompted, questioned his competency to litigate a case that he brought before this court. The court's obligation to conduct a competency hearing under FRCP 17(c) arises only when a "substantial question exists regarding the mental competence of a party proceeding pro se …." No such question arose in this case; Naessens actively participated in motion practice, coherently articulated his arguments and allegations, and never informed the court of any condition that affected his competency.
This book demonstrates that, with few exceptions, the ECtHR's general approach to hate speech has been overly expansive, often undervaluing both the significance of free speech and the harms resulting from the suppression of relatively low-threshold expressions. While this book does not advocate for an entire revision of the European approach to hate speech as that would anyhow be unrealistic, it does argue for a more rigorously substantiated balancing exercise and a renewed adherence to the Handyside principle. In Handyside v The United Kingdom (1976), the ECtHR found that the right to freedom of expression as provided by Article 10 of the European Convention on Human Rights (ECHR) extends to ideas that may 'offend, shock or disturb.' The hate speech jurisprudence of the ECtHR, although ostensibly committed to the protection of the right to freedom of expression continues to suffer from a lack of conceptual clarity, inconsistencies in application and a limited engagement with relevant scholarly literature. Some key examples are put forth hereinafter.
Féret v Belgium (2009) is emblematic of the departure from Handyside principles as it embedded a paradigm which I refer to as the low threshold hatred paradigm. Féret involved an application by a far-right politician who distributed leaflets during an electoral campaign with statements such as "Stop the Islamization of Belgium" and allegations that a refugee centre "poisons the lives of residents." In upholding domestic restrictions on such speech, the ECtHR equated insult, defamation and ridicule with hate speech that falls outside the protection of Article 10 of the European Convention on Human Rights (ECHR), denoting that incitement to violence is not a necessary pre-requisite for hate speech. Féret set a threshold precedent that would influence subsequent jurisprudence in which the ECtHR has systematically held that insults and/or defamation and/or prejudice and/or ridicule are enough to result in an Article 10 violation, even if they do not incite violence or other criminal acts.
Furthermore, rooted in the post-war consensus to combat anti-Semitism and Nazi propaganda, is the categorical exclusion of Holocaust denial from Convention protection through Article 17 of the ECHR, namely the prohibition of abuse of rights clause. This stems from the ECtHR's recognition of the enduring harm caused by the Holocaust and its denial not only to survivors, their descendants and groups but also to European democratic values.
Yesterday, in Walmart v. Chief Administrative Law Judge, a unanimous panel of the U.S. Court of Appeals rejected Walmart's challenge to the constitutionality of protecting Administrative Law Judges in executive branch agencies from removal without cause.
In an extensive and quite thorough opinion by Judge Hull, joined by Judges Jordan and Jill Pryor, the court concluded that the duties and authority exercised by ALJs are sufficiently constrained that limiting ALJ removal does not entrench upon executive power under Article II or otherwise prevent the President from fulfilling his obligation to "take care" that the laws are faithfully executed."
Here is the key portion of the opinion summarizing the court's analysis:
No doubt, the "general rule" is that under Article II the President has the "unrestricted" power to remove executive officers. See Seila Law, 591 U.S. at 215. To date, the Supreme Court has enumerated only two narrow exceptions to this Article II rule: (1) "one for multimember expert agencies that do not wield substantial executive power," id. at 218; see also Humphrey's Ex'r, 295 U.S. at 631-32, and (2) "one for inferior officers with limited duties and no policymaking or administrative authority," Seila Law, 591 U.S. at 218; see also Morrison, 487 U.S. at 691.
We are not concerned with the first exception. In the district court and on appeal, neither party previously asserted that ALJs are members of multimember expert agencies under Humphrey's Executor or single directors of independent agencies. See Seila Law, 591 U.S. at 213 (single Director of CFPB); Collins, 594 U.S. at 251 (single Director of FHFA).
As to the second exception, the parties still agree that the Department's ALJs are inferior officers properly appointed by the Attorney General. So the constitutional question becomes whether they have "limited duties and no policymaking or administrative authority" as required by the second exception. Seila Law, 591 U.S. at 218; Morrison, 487 U.S. at 691; see also Wilcox, 145 S. Ct. at 1415 (acknowledging "narrow exceptions" to the President's Article II removal power).
Under the second exception, the pivotal Article II inquiry remains whether the APA's § 7521(a) removal restriction unconstitutionally interferes with the President's necessary power to take care that the laws are faithfully executed. See Myers, 272 U.S. at 164; Morrison, 487 U.S. at 689-90. In other words, does the ultimate exercise of executive power remain within the purview of the President or those directly accountable to the President? See Morrison, 487 U.S. at 689-90.
After thorough consideration, and applying the Supreme Court's governing analysis and largely the same factors considered by other circuits, we conclude the APA's § 7521(a) removal restriction is constitutional . . .
The court adds:
In holding § 7521(a) constitutional, we respect the Constitution's carefully calibrated separation of powers. Even though the Constitution is silent about removal of executive branch officers, the Supreme Court has instructed that Article II's Take Care Clause and Appointments Clause grant the President the broad power to remove executive branch officers. But importantly here, the Constitution in Article II also explicitly grants Congress a say in how inferior officers, including the Department's ALJs, are appointed. The constitutional authority of Congress to vest the appointment of inferior officers implies authority to limit and regulate the removal of those inferior officers so appointed. Striking down § 7521(a)'s straightforward "good cause" removal restriction on inferior officers with such limited duties as ALJs would upset the Constitution's balance of governmental power.
I would expect that Walmart will seek review of this ruling, perhaps initially with a petition for rehearing en banc, then followed by a petition for certiorari. This is a particularly liberal panel for the Eleventh Circuit, so an en banc petition would make some sense. On the other hand, Judge Hull's opinion is quite thorough, and other judges on the circuit might think that if any court is going to take the next step with regard to limitations on removal, it should be the Court at One First Street.
The speech included in-class display of "Free Palestine," e-mail signature saying "From the River to the Sea, Palestine will be free," and pro-Palestinian social media posts.
Plaintiffs are public school teachers employed by the [Montgomery County (Md.) Public Schools]. Following the events of October 7, 2023, the Plaintiffs individually expressed their opposition to Israel's response to the terrorist attacks and to the subsequent war in Gaza.
This led to their being transferred to other schools (and, as to two of them, being placed on paid administrative leave). They sued, claiming that, among other things, this constituted unconstitutional retaliation for the exercise of their First Amendment rights. The Court has held that such retaliation violates the First Amendment if
the speech is on a matter of public concern, Connick v. Myers (1983), and
the speech is not said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), and
the damage caused by the speech to the efficiency of the government agency's operation does not outweigh the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968)—in practice, this means that employees can be punished for their speech if coworkers or members of the public express enough hostility to the speech, but are generally protected if there isn't much such hostility.
The court rejected Plaintiff El-Haggan's claim to the extent it was "based upon [her] wearing of pro-Palestinian pins, buttons and clothing in the classroom":
Plaintiff El-Haggan was not speaking as a private citizen when she wore pro-Palestinian pins, buttons and other clothing in her classroom. The amended complaint makes clear that Plaintiff El-Haggan engaged in this speech within her classroom, by wearing homemade pins, buttons and outfits containing the slogan, "Free Palestine." The amended complaint also shows that Plaintiff El-Haggan engaged in this speech by distributing "Free Palestine" buttons to other teachers at her school. Given these facts, the Court agrees with the Defendants that Plaintiff El-Haggan's speech was curricular in nature, because, her students and their parents were likely to regard such speech in the classroom as approved and supported by the school.
Notably, the amended complaint makes clear that Plaintiff El-Haggan's speech, while unrelated to mathematics, was, nonetheless, designed to impart knowledge to the students about the war in Gaza. Because the factual allegations in the amended complaint, taken as true, show that Plaintiff El-Haggan presented her views regarding the war in Gaza in a compulsory classroom setting, she was not speaking as a private citizen, but rather as an employee of the MCPS.
Given this, the Plaintiffs do not state a plausible First Amendment retaliation claim based upon this conduct.
But the court held otherwise as to "Plaintiff El-Haggan's email signature containing the slogan, 'From the River to the Sea, Palestine will be free'":
A bit of backstory, from a 2019 N.Y. Daily News story (by Michael Elsen-Rooney & Stephen Rex Brown):
A white principal and four black teachers at a Bronx middle school have filed dueling lawsuits accusing the other of racism as fallout continues over allegations that the embattled administrator barred Black History Month lessons.
Amid the furor, Catania sued Liriano, two other black teachers at the school and two teachers union employees, alleging they'd waged a "maligning, malevolent, and racist campaign" to oust Catania as principal because she was successfully cracking down on under-performing educators….
"We can Malcolm X her, by any means necessary we will get her out. Change through violence," UFT rep William Woodruff allegedly said in January 2017.
In Catania v. United Fed'n of Teachers, decided Monday by Judge Gregory Woods (S.D.N.Y.), the judge rejected much of plaintiff's claims, but allowed some to go forward; recall that all the factual allegations described below are just allegations at this point—the court simply held that plaintiff had plausibly alleged enough to allow the case to proceed:
This case concerns a dispute over the display of flags on a series of 18 flagpoles located on city sidewalks lining Joseph Campau Avenue in the City of Hamtramck's downtown historic district. It is undisputed that the flagpoles are on public property and owned by the City. At the center of the dispute is the display of a Gay Pride flag, once sanctioned by [the city Human Relations Commission] and then banned by city government after a change in administrations and a corresponding policy reversal. The plaintiffs, Russ Gordon and Cathy Stackpoole, were members of that commission before they were dismissed for pressing the issue….
In 2021, the Hamtramck City Council authorized the display of a Pride flag at a city-owned flagpole, but then in 2023 it reversed course, implementing this resolution:
WHEREAS, the City of Hamtramck is one of the most diverse cities in the United States, in which we should proudly promote and embrace its diversity; and
WHEREAS, the City must and will serve and treat its residents equally, with no discrimination, or special treatment to any group of people; and
WHEREAS, the City has authorized in the past, the Human Relations Commission to install nations['] flags on the City flagpoles to represent the international character of the City, Resolution 2013-102: and
WHEREAS, each religious, ethnic, racial, political, or sexually oriented group is already represented by the country it belongs to; and
WHEREAS, the City does not want to open the door for radical or racist groups to ask for their flags to be flown; and
WHEREAS, this resolution does not in any way, shape or form infringe upon the fundamental right of an individual or business in the City of Hamtramck to engage free speech. Nor does this resolution limit speech by public employees provided that such employees engage in such speech in a protected time, manner and place.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hamtramck, Wayne County, Michigan, that the government of the City of Hamtramck does not allow any religious, ethnic, racial, political, or sexual orientation group flags to be flown on the City's public properties, and that only, the American flag, the flag of the State of Michigan, the Hamtramck Flag, the Prisoner of War flag and the nations' flags that represent the international character of our City shall be flown.
Plaintiffs, who are public interest lawyers in the greater New York City area, … Plaintiffs allege that their local chapter of the Association of Legal Aid Attorneys ("ALAA"), unlawfully retaliated against Plaintiffs for suing in New York state court to prevent the ALAA from promulgating a resolution that Plaintiffs viewed as antisemitic {and that] Plaintiffs characterize as "an 1,147-word diatribe against Israel"}…. Plaintiffs have stated claims under the LMRDA, at least as to the ALAA and members of its Amalgamated Council. The LMRDA protects Plaintiffs' right to freedom of expression, as well as their right to sue, largely irrespective of the content being expressed. Thus, … the ALAA and its officers were barred from disciplining Plaintiffs in retaliation for that lawsuit….
Section 101 of the LMRDA enumerates certain rights that all union members shall have, including the right to sue, and the right to freedom of expression. Section 609 makes it unlawful for a union to "fine, suspend, expel, or otherwise discipline" any member for exercising such rights ….
Here, whether viewed as "infringement" of Plaintiffs' Section 101 rights, or as "discipline" prohibited by Section 609, the ALAA may be liable if the charges against Plaintiffs were based on Plaintiffs' protected conduct. Members of the ALAA "filed charges and initiated expulsion proceedings against plaintiffs," and the ALAA defended the propriety of those charges against Plaintiffs' appeals until Plaintiffs finally prevailed before the PRB. That is sufficient to state at least an infringement claim, and likely a discipline claim as well, as to the union….
"Reading antidiscrimination laws to prohibit the voicing of views critical of a foreign state, or support thereof, would raise serious doubts about their constitutionality, which the Court must avoid."
Plaintiffs, who are public interest lawyers in the greater New York City area, … Plaintiffs allege that their local chapter of the Association of Legal Aid Attorneys ("ALAA"), unlawfully retaliated against Plaintiffs for suing in New York state court to prevent the ALAA from promulgating a resolution that Plaintiffs viewed as antisemitic {and that] Plaintiffs characterize as "an 1,147-word diatribe against Israel"}…. Plaintiffs have not stated retaliation claims under Title VII, the NYSHRL, or the NYCHRL, because their state-court lawsuit did not oppose any discrimination made unlawful by those statutes….
At no point did Plaintiffs argue that the Resolution had only been adopted because the ALAA discounted or repressed the views of its Jewish members, in fact almost exclusively using the word Jewish when referring to Plaintiffs' clients who might be offended by the Resolution, and to Jewish colleagues with whom Plaintiffs' professional reputations might suffer. Reviewing these allegations, the Court sees nothing alleging differential treatment of Plaintiffs because they are Jewish, or based on any other protected status….
Moreover, because the ALAA's Resolution was political speech on a matter of public concern, this case is "rife with First Amendment overtones." Cf. Gartenberg v. Cooper Union (S.D.N.Y. 2025) (cleaned up). While it is true that "invidious private discrimination … has never been accorded affirmative constitutional protections," Title VII, like the NYSHRL and NYCHRL, nonetheless must respect "the fundamental principle that governments have 'no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" When speech involves matters of "public concern"—as the current debates about Israel and Palestine surely do—it is "entitled to 'special protection' under the First Amendment" and generally "cannot be restricted simply because it is upsetting or arouses contempt." …
In this fourth guest entry on The Volokh Conspiracy, I examine a domain where the European Court of Human Rights (ECtHR) and the now defunct European Commission on Human Rights (EComHR) has shown a bold willingness to restrict speech, namely speech related to totalitarianism and genocide. But the ECtHR's boldness in some cases is matched by inconsistency in others, raising a fundamental concern, when the memory of atrocity becomes a matter of legal privilege, which histories are protected, and which are negotiable? Through a close reading of key decisions, this post highlights what I call the Court's "hierarchy of historical suffering."
Article 17 and the totalitarian legacy
Article 17 of the European Convention on Human Rights (ECHR) prohibits the use of Convention rights for the destruction of such rights. The Court has interpreted this provision, especially in cases involving Nazi ideology and Holocaust denial, as a near-automatic bar to Article 10 protection. In Kühnen v Germany (1988), the EComHR declared inadmissible the complaint of a neo-Nazi convicted for distributing propaganda. The Commission reasoned that by invoking Article 10 to spread ideas that were fundamentally incompatible with the values enshrined in the Convention, the applicant sought to undermine the very rights the Convention was designed to protect.
A similar logic was followed in B.H, M.W, H.P. and G.K. v Austria (1989). The applicants were convicted of engaging in activities motivated by National Socialist ideology, including the production and dissemination of pamphlets denying the Nazi genocide of six million Jews. As members and leaders of the Aktion Neue Rechte party, they advocated for the reintroduction of traditional Nazi songs and titles within the organisation. They were sentenced to conditional terms of imprisonment under the National Socialism Prohibition Act, receiving sentences of nine, three, eighteen and twelve months respectively. The EComHR found that, considering Austria's historical context and the underlying purpose of the Convention, the corresponding penalties imposed on the applicants were justified. It determined that Austria's measures were consistent with the limitations outlined in Article 10(2), interpreting all relevant provisions through the lens of Article 17. It noted that 'in view of the historical past forming the immediate background of the Convention itself' the restrictions to the applicants' activities were justified in the interest of national security, territorial integrity and for the prevention of crime.
This pattern shows a consistent application of Article 17 to anything related to National Socialism. While one might understand the historical sensitivity of Europe towards the genocidal atrocities of the Nazi regime, the result has been a categorical exclusion of speech directly or indirectly related to this regime that bypasses any balancing test under Article 10(2) of the ECHR on the right to freedom of expression. But this consistency breaks down quickly when it comes to other ideologies.
