The Volokh Conspiracy Archive

It's a project of Studium; Studium's Constitutional Law Advisory Board includes Prof. and National Constitution Center CEO Jeffrey Rosen, Prof. and former ACLU President Nadine Strossen, Prof. and former Chief Judge Diane Wood, Prof. and Judge Doug Ginsburg, and Prof. Adam White. Volume II is now out, and it contains these articles:

Sebastian Lewin, The Unassailable Theory of Liberty
Eileen Wang, ICWA's Dual Purpose After Haaland v. Brackeen: Reading Alito's Dissent Alongside Gorsuch's Concurrence
Steele Barhydt, On Tyranny
Anna Yuras & Piper Schmitz, Why Originalism Should Prevail as the Dominant Method of Interpretation
Benjamin Berer, Counterman v. Colorado: Why the Recklessness Standard Fails Victims of Online Threats
Morgan Cole, Loper Bright Enterprises v. Raimondo in the Upside Down: How a Fight Over Fishery Salaries Could Spark an Unintentional Sanctuary for Science
Adam Watson, A Campaign Finance System Which Doesn't Work
Michelle Wang & Colomba Joulin-Batejat, Burden and Constitutional Risk in Glossip v. Gross
Alison Gipstein & Hannah Lewis, Reassessing the Implications of Prior Restraint in the Digital Age as a Result of Ambiguity in New York Times Co. v. United States
Kalel Charalambides, Engel v. Vitale and the Illusion of Voluntary Prayer: Religious Neutrality, Psychological Pressure, and the Impact on Students from All Academic, Social, and Cognitive Backgrounds
Thomas Houghton & Evan Hernandez, The Alien Tort Statute and America's Betrayal of Universal Justice
Emma Di Domenico, A Patchwork System: Why Consumer DNA Databases Require a Federal Framework for Privacy and Protection Interests
Sophia O'Connor, Beyond Gideon: The Case for Counsel in Housing Court

Here's the introduction from the founder, Olivia Eve Gross:

8/22/1998: On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. The Supreme Court considered the constitutionality of his prosecution for cross burning in Virginia v. Black (2003).

A few days ago, I had the honor of giving the keynote speech at the Libertarian Futurist Society's annual Prometheus Awards ceremony. My talk was on the topic of "Libertarianism and Science Fiction." It explains why libertarian ideas are much more prevalent in science fiction and fantasy than in other fiction genres, why it matters, and a few lessons libertarians may be able to draw from this. I also presented the Prometheus Hall of Fame Award to Aldous Huxley's classic work, Brave New World. The award was accepted by a representative of the Huxley estate and two of the author's grandchildren.

See here for a more detailed description of the awards and the various winners.

I addressed the issues covered in the talk in greater detail in a 2011 article on "Libertarianism and Science Fiction." The talk in some ways updates the analysis; but much more can be said. When and if time allows, I would like to revisit this theme. I have previously written various other articles and book chapters about political themes in science fiction and fantasy, most recently here.

Below is the video of the awards ceremony. My talk goes from about 1:30 to 14:40.

An excerpt from today's long decision in Democracy Partners, LLC v. O'Keefe by D.C. Circuit Judge Karen LeCraft Henderson, joined by Judge Harry Edwards (read this post for more on the facts and on a separate fraud claim):

Creamer [the target of a Project Veritas undercover investigation] brought those claims under the provisions of the federal and D.C. wiretapping laws that make it unlawful to secretly record a conversation with another "for the purpose of committing any crim[e] or tor[t]." The jury agreed with Creamer that Maass [a Project Veritas employee who, under false pretenses, applied for and got an internship at Cramer's Democracy Partners organization -EV] violated these provisions because she was a fiduciary of Democracy Partners and surreptitiously recorded her conversations with Democracy Partners staff in order to breach her fiduciary duty—which is a tort in D.C….

A fiduciary is an agent who exercises delegated power on a principal's behalf. "[P]ower" means the actual or apparent authority to take actions that "affect the legal rights and duties" of the principal. This requirement separates the fiduciary relationship from the ordinary contractual arrangement. "[L]awyers, trust companies, realtors, or the like," are common examples of fiduciaries because the decisions they make often carry legal consequences for the other party…. Courts thus recognize that the fiduciary relationship is a "special confidential relationship" that "transcends" an arms-length business transaction.

In our view, no reasonable jury could find that Maass was a fiduciary of Democracy Partners because the evidence failed to show Maass was an agent with any degree of delegated power to act on Democracy Partners' behalf. To explain why, we ignore Maass's title as an unpaid intern and focus solely on "the facts of [her] relationship" with Democracy Partners—most relevantly, the "promises made, the type of services or advice given and the legitimate expectations of the parties."

From today's long decision in Democracy Partners, LLC v. O'Keefe by D.C. Circuit Judge Karen LeCraft Henderson, joined by Judge Harry Edwards:

James O'Keefe is the Founder and former CEO of Project Veritas, a non-profit media organization that gathers news "almost exclusively [through] undercover journalism" … [including] "open and secret audiovisual recording" ….

In spring 2016, Project Veritas assigned one of its investigative reporters, Christian Hartsock, to find leads on a potential story about voter fraud schemes in the Wisconsin elections. Acting undercover, Hartsock infiltrated an election-watch party at a Milwaukee bar, where he met Scott Foval, a Democratic political consultant.

Using a fake name and backstory, Hartsock convinced Foval that he worked for a fictitious political consultant group and that one of his clients was a "progressive philanthropist [with] a deep disdain for voter ID laws." Hartsock told Foval that he was working on a "surrogate voter scheme[]," in which his client planned to open a shell company in Wisconsin, hire out-of-state voters and illegal immigrants and issue them employer-IDs that would allow them to vote fraudulently in Wisconsin's elections.

Foval thought Hartsock's scheme was "brilliant" and volunteered "all this advice" on "how to pull it off." He advised Hartsock to transport fraudulent voters to polling places with rentals or auctioned-off cars and he recommended expanding operations to Michigan and Illinois. Foval also suspected that Hartsock's unnamed client (who did not, in fact, exist) was receiving advice on the voter fraud scheme from Bob Creamer, a Democratic consultant in D.C.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Shooting the wrong man (tragedy) and free speech dying in the library (comedy).

Under the Federal Vacancies Reform Act of 1998, a first assistant U.S. Attorney automatically becomes interim U.S. Attorney if there's a vacancy. So can the AG name someone the first assistant to a vacant U.S. Attorney position and have them automatically elevated? Second Circuit (over a dissent): Joining every other court that has considered the question, no.
Man videorecords Waterbury, Conn. police station from public sidewalk, declines to show ID to officers. He's arrested. (Prosecution is dropped over two years later.) Second Circuit: It was dusk and he didn't answer officers' questions, so there's no 4A violation. And while it's now clearly established that recording the police is 1A protected, qualified immunity. Concurrence: He wasn't recording the police! Read More

From Judge Terry Moorer (S.D. Ala.) today in Doe v. Goff:

Pending before the Court is the Motion for Ruling on Plaintiff's Motion for Leave to Amend Complaint and Motion to Dismiss Defendant's Counterclaims in which Defendant Kelly Goff … motions the Court to expedite a ruling for Plaintiff Jane Doe's Motion to Dismiss Counterclaim and Motion for Leave to Amend Complaint. Defendant states Plaintiff's motions have been under submission with the Court for more than four and one-half months, along with his motion for summary judgment, discovery closes on August 31, 2026, dispositive motions are due by September 25, 2026, and a settlement conference is scheduled before the Magistrate Judge on September 1, 2026.

Defense counsel previously contacted chambers by telephone to push for a resolution of his motion for summary judgment and seemingly cannot read the room when the Court's response was to summarily deny Defendant's previously filed request for the Court to expedite a ruling on his motion for summary judgment. Plainly stated, this is not the only case on this Court's docket and Defendant does not get to line jump in front of other pending motions simply because he demands it. It is for the Court to determine the priorities of its docket not the Defendant. Put simply, criminal cases come first followed by civil cases that are older or have a statewide impact. Additionally, the reasoning provided by the Defendant—incurring attorney's fees—is true for all parties involved in litigation.

The Court has inherent power to control the disposition of pending matters in the manner and timing as it deems appropriate.

The motion for ruling is GRANTED. The adage of "be careful what you wish for" may apply in that Defendant may find the reality does not live up to his desire. The Court issues this short summary order to provide the answer to the request and the motions but will issue a more detailed opinion with its full reasoning at a later stage. It is ORDERED that both Plaintiff's motions are GRANTED.

Check them out, at http://hoover.org/plus; first-rate stuff over there.

From Martins v. Romero, decided today by Judge Kay Behm (E.D. Mich.) (for more on the Complaint, see this post):

According to the Complaint, Fr. Martins is a well-known priest of the Catholic Church and has built a large social media following due to his work as an exorcist. The Exorcist Files is a podcast co-created and co-hosted by Ryan Bethea and Fr. Martins. As co-host of The Exorcist Files, Fr. Martins recounts many years' worth of real-life stories where Fr. Martins has helped "set people free all over the world." Due to the popularity of the podcast, Fr. Martins published a book, also titled The Exorcist Files, on November 19, 2024.

The Complaint explains that certain priests are authorized to perform the exorcism ritual either by "mandate," where their ministry is limited to a single diocese, or "ad actum," where the priest is permitted to officiate this ritual in any diocese, under the authority of the local diocesan bishop. Fr. Martins is authorized by his Order, the Companions of the Cross, to perform as an exorcist ad actum.

Defendant Jesus Romero hosts a rival podcast called "Jesus 911" which is broadcast nationwide. Co-Defendant Kyle Clement is a frequent guest on Romero's podcast. The Catholic Resource Center owns and operates the podcast network that broadcasts Jesus 911.

According to the Complaint, during several episodes of his podcast during the fall of 2024, Romero and Clement defamed Fr. Martins and cast his ministry in a false light. On the November 20 podcast, Clement claimed that Fr. Martins "is not who he says he is." In the subsequent episode of the podcast, dated November 27, Romero revealed that he had made a request to Fr. Martins' religious Order to verify Fr. Martins' qualifications. In an email reply, the Order indicated that Fr. Martins was not appointed as an exorcist by mandate ("by a particular diocese"), but that he had "appropriate permission" to perform the ritual in any diocese "by request of the corresponding bishop." The full body of the email reads:

In answer to your inquiry Fr. Carlos has not been appointed as an exorcist by a particular diocese. His full-time ministry is Treasures of the Church, however, due to his travels, he has been involved in exorcisms with the appropriate permission and or by request of the corresponding bishop.

A very interesting piece in the Chronicle of Higher Education. Here are two brief excerpts, but they can't do justice to the whole piece, which covers much more ground:

{[W]hen a mainstream journalist [investigated Arday], he was threatened with lawsuits, visited by the police, and subsequently instructed by his editors to bury the story—and he sheepishly complied. Arday was exposed by a "race realist" Substack writer because reporters wouldn't cover the story until after it had already become common knowledge. It seems to defeat the purpose of the journalistic profession to tell people what they've already learned by other means, but that was the position U.K. media outlets and journalists took: radio silence until "others" started the conversation. And, somehow, the main lesson many seem to be taking from the way things played out is that we need even more media censorship downstream.}

It is appropriate to give Arday's misconduct widespread attention because he, himself, relentlessly pursued the spotlight. The accuracy of his story matters because he sought fame and riches directly on the basis of his "biography," and Cambridge quite overtly recruited, promoted, celebrated, and defended him on the same grounds.

His posthumous allies seem to be striking the position that public attention to Arday's "journey" and research was fine, but only when it suited his interests; he should be a subject of conversation, but only on his own terms; he deserves media coverage, but only when it flatters him. That's just not the way the game works. If you're in the spotlight, you're in the spotlight. Arday wanted to be the center of attention. He got his wish.

The N.Y. Times (Katie Robertson) so reports, and adds that "The Times had not lost a defamation lawsuit brought in the United States over one of its articles in more than 50 years."

Here's an excerpt of the decision from Judge Annemarie Carney Axon (N.D. Ala.) in May (Spears v. N.Y. Times Co.) that allowed the case to go forward:

Plaintiff Kai Spears was a walk-on basketball player for The University of Alabama men's basketball team and developed close friendships with other teammates, including Brandon Miller. In the early hours of the morning on January 15, 2023, Mr. Spears and Mr. Miller visited Moe's Original BBQ in Tuscaloosa, Alabama.

Unbeknownst to Mr. Spears, another teammate—Darius Miles—asked Mr. Miller to bring Mr. Miles a gun that he had left in Mr. Miller's car. So Mr. Miller headed to Mr. Miles, and Mr. Spears started back to his dorm. A few minutes later, gunfire erupted on the Strip, and Michael Davis, Mr. Miles's childhood friend, shot and killed Jamea Harris using the gun that Mr. Miller had brought to Mr. Miles.

{Two months later, the Times published an article, titled "A Fourth Alabama Player Was at a Deadly Shooting, in a Car Hit by Bullets." The opening line said that the "fatal January shooting that involved players from the University of Alabama basketball team could have been even more deadly, as surveillance video showed that two players were in a car struck by bullets in the crossfire."

It added that Mr. Spears was in the car with Mr. Miller at the time of the shooting and that Mr. Miles had asked Mr. Miller to bring Mr. Miles's gun to the scene. The story said that the University had tried to "distance itself from the shooting" and keep "quiet" other players' involvement. The article then discussed widespread criticism that Mr. Miller and the University received when Mr. Miller continued to play after the shooting.}

The statements about Mr. Spears were false, and this lawsuit followed….

Speak Freely recently posted, "You Chose the Wrong Parents," an interview I did with them on migration rights. We covered many issues relating to immigration, including the case for migration rights, how immigration restrictions are similar to medieval serfdom, causes of anti-immigrant sentiment, what I think are the strongest arguments for restrictionism, and how migration relates to broader dangers of nationalism, zero-sum thinking, and widespread political ignorance.

Thanks in large part to the great questions posed by Speak Freely website editor-in-chief Ogechukwu Egwuatu (herself an African immigrant to France), I think this was one of my best media interviews of the last few years. Speak Freely is a publication of European Students for Liberty, and we conducted the interview in April, during LibertyCon Europe (ESFL's annual convention). I wrote about my experience at LibertyCon here, outlining some similarities and differences between European and American libertarians/classical liberals. The transcript of the interview is here (but note there are a lot of transcription errors). I embedded the video below:

The final version of "Denaturalization's Missing Limit," my latest article with Cassandra Burke Robertson, is out in the Northwestern University Law Review Online. Here is the abstract:

Civil denaturalization has become a bipartisan tool of punishment and deterrence. The government has used the civil justice system to strip citizenship from naturalized citizens convicted of serious crimes— including sex offenders—to "send a loud message" and "hold accountable" those it considers undesirable, circumventing the ten-year statute of limitations Congress imposed on criminal naturalization fraud. The Trump Administration has gone further, elevating denaturalization to one of the Department of Justice's top five enforcement priorities and directing attorneys to "maximally pursue" every viable case. One of the features that makes denaturalization such a potent tool is the widely accepted proposition that no statute of limitations applies. This Essay argues that proposition is wrong. Drawing on the Supreme Court's decision in Kokesh v. SEC, the text and structure of 28 U.S.C. § 2462, and the policy rationales underlying statutes of limitations, we argue that Congress's existing default five-year limitations period should be understood to apply to civil denaturalization. A five-year time bar would preserve the government's ability to pursue clear fraud while preventing the indefinite vulnerability that chills the political participation of over twenty-three million naturalized Americans.

Thanks to the Library of Congress; L. Prang & Co., 1872.

Wednesday, District Judge Mark Norris (W.D. Tenn.) accepted the July 30 recommendations from Magistrate Judge Annie Christoff in Johnson v. Hall:

Johnson [sued] …, alleging various claims arising from Defendants' television series "P-Valley," which Johnson claims "directly appropriated" her autobiography entitled "Pussy Valley." According to Johnson, her autobiography recounts "her life as an exotic dancer, including her upbringing in the Graves Manor Projects in Memphis, Tennessee, colloquially know as 'Pussy Valley.'" She allegedly "shared and discussed" her autobiography with Defendant Katori Hall, who, "in collaboration with Defendants Starz Entertainment and Lions Gate Entertainment, developed and produced the television series 'P-Valley.'" …

The magistrate judge recommended that Johnson's right of publicity and unjust enrichment claims be dismissed as preempted by the Copyright Act:

The autobiography … qualifies as a literary work that "falls within the range of materials protected by the Copyright Act." … The Sixth Circuit applies a "functional test" to determine equivalency, which "asks whether the state claim seeks to protect rights similarly protected by the Copyright Act." …

As Starz correctly asserts, [the right of publicity and unjust enrichment] claims are based on allegations that Starz "misappropriated [Johnson's] identity, life story, and creative expression for commercial gain without consent" and "profit[ed] from [her] life story without compensation." Based on these allegations, each cause of action depends on Starz's alleged use of Johnson's original autobiography without her permission or without compensation. "As unauthorized publication is a core and exclusive right safeguarded by the Copyright Act," the Court agrees that Johnson's statutory right-of-publicity and unjust-enrichment claims are preempted by the Copyright Act.

Some excerpts from the longish opinion in Doe v. Carleton College, decided yesterday by Judge Donovan Frank (D. Minn.):

Carleton is a private liberal arts college in Northfield, Minnesota with approximately 2,000 students. Doe was a student at Carleton between 2019 and 2023. While she was a student, Doe got involved in dance, first participating in Carleton's social dance club, then taking two salsa classes and an independent study in dance with Carleton staff member Donald Smith.

Over time, Doe and Smith's relationship devolved, becoming inappropriate and abusive. Doe now sues Carleton based on its hiring, retention, and supervision of Smith under theories of direct and vicarious liability….

After attending Smith's salsa workshop, Doe enrolled in Salsa I for the 2020 winter term. During the course, Doe and Smith developed a close relationship. They began taking walks together and communicating more frequently about personal details. In March 2020, Doe and two other students went to Smith's house for dinner with him and his wife.

After Salsa I ended, Smith left a note in Doe's student mailbox asking if she would be his salsa co-instructor in future classes. During winter break, Doe and Smith met approximately ten times in Smith's office so Smith could continue teaching Doe. During those meetings, Smith made inappropriate comments, expressed his attraction to Doe, and touched her in ways that made her uncomfortable. Doe had some interaction with Smith during the 2020 spring term, including spending the night at his home. Doe had no concerns about that visit and had minimal contact with Smith for the rest of the term.

In a future column, I will propose that the Supreme Court Justices should resume circuit riding. Whatever grievances eighteenth century justices raised about riding on horseback and boat have no relevance today. The Justices routinely travel around the globe in cushy airplanes and black SUVs. There will be more work. Deal with it.

A likely rejoinder, of course, is that the seven of the Justices are not equipped to be trial court judges. (I exclude Justices Sotomayor and Jackson, who both would be at home in a district court). Indeed, Justice Rehnquist famously presided over a civil trail in federal court in Richmond, and was unanimously reversed by the Fourth Circuit. This single anecdote is held up as a reason why Supreme Court justices have no business riding circuit. I don't buy it. Most trial court judges need some time to ramp up and are not at their best during their first trial. If at first you don't succeed, try, try again.

I've long been curious about this event, but couldn't find many details about it, other than some contemporary news accounts. I located the entire trial court record, which was stored at the National Archives in Philadelphia. My sincere thanks to Cana Cossin, a student at Penn Law, for scanning the entire record. I will write about these documents more in depth at another time. Here, I just wanted to raise a question that I did not find an answer to: what gave Rehnquist the authority to preside over the trial?

Nothing in the trial court record reflects this issue. Everyone just acted as if it could be done.

Under 28 U.S.C. § 294, the chief justice of the United States is authorized to allow retired justices to sit by designation on the lower courts. But there is no comparable authority for an active Justice to sit by designation. It has been done before. For example, in Field v. United States (1951), Justice Stanley F. Reed sat on the Second Circuit in his capacity as "Acting Circuit Justice."

Does anyone know the statutory authority for these appointments?

Update: A colleague writes in with one possible path:

28 U.SC. § 291(b) allows the Chief Judge of a circuit to designate any circuit judge to sit as a district court judge, including a judge temporarily designated as a circuit judge.

(b) The chief judge of a circuit or the circuit justice may, in the public interest, designate and assign temporarily any circuit judge within the circuit, including a judge designated and assigned to temporary duty therein, to hold a district court in any district within the circuit.

28 U.S.C. § 43(b) says that the justice for a circuit is competent to sit as a circuit judge

(b) Each court of appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court.

28 U.S. § 42 allows more than one justice to be a justice for a circuit.

A justice may be assigned to more than one circuit, and two or more justices may be assigned to the same circuit.

Chief Justice Burger could have temporarily assigned Rehnquist to also be a Circuit Justice of the Fourth Circuit, which would have made him competent to sit as a Fourth Circuit judge, and then the Chief Judge of the Fourth Circuit could designate Rehnquist as the District Court judge.

8/21/1798: Justice James Wilson dies.

The Volokh Conspiracy

Check Out the National High School Law Review, Vol. II

Today in Supreme Court History: August 22, 1998

Open Thread

Video of My Keynote Speech at the Annual Libertarian Futurist Society Prometheus Award Ceremony

Intern (Actually a Project Veritas Undercover Plant) in Political Organization Didn't Have "Fiduciary Duty" to Organization

Damages Award Stemming from Project Veritas Project Set Aside by D.C. Circuit

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

How to Alienate a Judge, Part 374

Hoover Institution (@HooverInst) Videos, Podcasts, and More, Now at Hoover+

Exorcist Files vs. Jesus 911 Libel Suit Can Go Forward

Prof. Musa Al-Gharbi's "Jason Arday and Me"

$9.25M Verdict Against N.Y. Times, in Libel Case Brought by Alabama Basketball Player

"You Chose the Wrong Parents" - My "Speak Freely" Interview on the Case for Migration Rights

"Denaturalization's Missing Limit" out in Northwestern University Law Review Online

"Pussy Valley" Autobiography Appropriation Lawsuit over Starz' "P-Valley" Thrown Out

Watch out with Dancing; It Might Lead to Sex

What Authority Allowed Justice Rehnquist to Sit by Designation on the Federal District Court?

Today in Supreme Court History: August 21, 1798

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