The Volokh Conspiracy

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

The Volokh Conspiracy
About The Volokh Conspiracy

Separation of Powers

Prosecution of Congresswoman for Assaulting and Impeding Federal Officials at ICE Delaney Hall Detention Facility Can Continue

|

Some excerpts from the long opinion in U.S. v. McIver, written by Third Circuit Judge Cindy Chung and joined by Judges Stephanos Bibas:

Congresswoman McIver represents New Jersey's 10th Congressional District in the United States House of Representatives and serves on the Committee on Homeland Security. On May 9, 2025, Congresswoman McIver and two other Representatives conducted an unannounced congressional oversight inspection of Delaney Hall Federal Immigration Facility, pursuant to statutory authority…. Upon arrival, Congresswoman McIver and the other Representatives entered through the security gate into the secured exterior area of the facility. They proceeded inside Delaney Hall and waited for over an hour in the facility's administrative office.

During that time, Newark Mayor Ras Baraka and his security detail arrived at Delaney Hall and they were allowed through the security gate into the secure exterior premises of the facility. Meanwhile, dozens of protestors and media members had amassed outside the security gate.

{We draw these facts from the Indictment, from evidence in the record, and as set forth by the District Court in its opinions. We accept as true the facts alleged in the Indictment for purposes of considering a motion to dismiss. Neither party challenges the facts as set forth by the District Court.}

The Homeland Security Investigations ("HSI") Special Agent in Charge in New Jersey (referred to in the Indictment and by the District Court as "Victim-1" or "V-1") approached the Mayor inside the security gate and advised him that he was not allowed on the premises, ordered him to leave, and told him he would be arrested if he did not comply. At that time, Congresswoman McIver and the two other Representatives left the administrative office and walked toward the security gate, where the Mayor was speaking with Victim-1. Victim-1 directed the Mayor and his security detail outside of the Security Gate to the unsecured area outside the facility, and Congresswoman McIver and the two Representatives began to walk back towards the administrative office.

Moments later, Victim-1 informed a group of federal agents that the United States Deputy Attorney General had authorized the Mayor's arrest, and the agents exited the secured premises and approached the Mayor and his security detail. Upon observing this, the Congressional delegation also proceeded into the unsecured area. An unidentified member of the crowd yelled, "circle the Mayor," and some protesters, as well as Congresswoman McIver and the two Representatives, encircled the Mayor as Victim-1 and the other agents pushed their way through the crowd to apprehend him.

Video surveillance shows Congresswoman McIver placing herself between the Mayor and Victim-1. The Indictment states that Congresswoman McIver then "slammed her forearm into the body of V-1" and "reached out and tried to restrain V-1 by forcibly grabbing him."

Read More

Free Speech

Court Upholds N.Y. Law Mandating Platforms Post Terms of Service and Report How Content Moderation Policies Have Been Enforced

|

From Judge John Cronan (S.D.N.Y.) today in X Corp. v. James:

Businesses might not always want to share every detail about the products or services they offer. But when the government requires those businesses to speak truthfully about their offerings, the First Amendment typically allows for that kind of disclosure requirement. "Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the 'marketplace of ideas.'"

That principle resolves this case. The State of New York requires social-media companies to disclose certain aspects of their content-moderation policies. X Corp. wants to share less of its policies than New York requires, so it invokes the First Amendment to avoid New York's requirement. But the First Amendment poses no obstacle to New York's law. Here, more speech—like sunlight—is "the best of disinfectants." …

Read More

Gun Control

What Is "Reasonable" Gun Control?

According to the Gun Control Lobbies, Everything, Including Prohibition

|

Starting with legislation signed by New York then-Governor Andrew Cuomo in 2022, eleven states have enacted "Firearms Industry Responsibility Acts." The statutes subject firearms retailers and manufacturers to tort lawsuits for any action that is not "reasonable." The National Shooting Sports Foundation, the trade association for the firearms industry, filed a facial challenge, arguing that the statute was void for vagueness. The Second Circuit disagreed, pointing out that "reasonable" is used as a legal standard in many contexts. National Shooting Sports Foundation v. James, 144 F.4th 98 (2d Cir. 2025). But what does "reasonable" mean in the new liability acts?

A grocery store knows that its reasonable duty of care to invitees includes promptly cleaning up spills so that customers do not slip and fall. The grocery store's reasonable duty does not include monitoring the weight of its customers and barring obese customers from buying high-calorie low-nutrition foods. The plaintiffs' tort lawyers who have, in a sense, helped shape and define grocery stores' reasonable duties are not morally opposed to grocery stores.  They are not working towards a society in which there is no private ownership of food. They do not aim for a world in which the only food is what the government chooses to provide and in which the only way to eat is to line up at a government mess hall — such as in Cuba, or in China during the Great Leap Forward of 1958–62.

Contrast grocery store litigation with firearms litigation. On the latter, many advocates do seek the eradication the entire line of businesses. In the words of Mrs. Gabrielle Giffords, leader of the eponymous lobby: "No More Guns. Gone." Philip Elliott, No More Guns. Gone': Why Gabby Giffords Isn't Giving Up, Time, Apr. 26, 2023.

As used by the gun control lobbies that created and pushed for the "industry responsibility" statutes, what does "reasonable" mean?

That is the question addressed in a new Working Paper from the University of Wyoming's Firearms Research Center. (I am a Senior Fellow at the Center.) Del Schlangen, who is a recent graduate of Denver University's Sturm College of Law, and was my intern this subject, investigated how gun control groups use thee word "reasonable." His results were published this week in his monograph Use of 'Reasonable' in Gun Control Advocacy (Firearms Rsch. Ctr., Working Paper No. 2026-8).

He finds that "reasonable" as defined by gun control groups is simply their word of approval of all the restrictions and prohibitions they favor. Schlangen's 58-page monograph begins with a three pages of summary, and then provides a representative catalogue of 170 written uses of "reasonable" by gun control advocates. He concludes:

The very advocates who assure courts that the industry duty is "well understood" (A80) or known (A81), and who assure the public that "reasonable controls" gives the industry "clear guidance" (A113) have, for nearly half a century, used "reasonable" to include banning all handguns, banning most modern rifles, banning the majority of magazines, and banning the carrying of any arm for self-defense. All lesser types of gun control are also declared to be "reasonable." Because "reasonable" means whatever the gun control lobbies desire at the moment, the word does not provide a fixed and ascertainable standard in the gun control context.

Guns

Suspension of Couple's Gun Rights Because Their College Student Daughter Drew Allegedly Threatening Images Violated Second Amendment

A police investigation had "verified that Plaintiffs' weapons were secured in a safe and that their daughter did not have access to them."

|

Some short excerpts from the long Ganz v. Nassau County, decided Monday by Magistrate Judge James Wicks (E.D.N.Y.):

The Plaintiffs are residents of Nassau County, New York and have held New York State pistol licenses since 2020. The licenses were issued to Plaintiffs by the NCPD PLS [Pistol License Section]….

In February of 2024, the Plaintiffs' daughter, who was enrolled in the SUNY Old Westbury College …, was admitted to a Massachusetts hospital for mental health treatment. In September 2024, a patient at the Massachusetts hospital contacted the SUNY school to report that Plaintiffs' daughter had drawn threatening images. Plaintiffs' daughter was then transported by the NCPD to Nassau University Medical Center. Plaintiffs' daughter informed the police that the picture was not depicting any type of shooting or threat.

The SUNY college and its police force, after having been informed of the accusation, handled the school-threat investigation. However, NCPD officers responded to Plaintiffs' home to ascertain the daughter's condition….

Plaintiffs came to [Nassau County Police Investigator] Cafarella's attention on September 18, 2024, after beginning his review of a police incident report concerning the Plaintiffs' daughter. This was a result of Nassau County being notified by SUNY Old Westbury Administration that Plaintiffs' daughter was accused of drawing disturbing pictures of mass shootings….

Read More

Free Speech

"A Lawsuit Showing up in Future Educational or Employment Screenings" "Is Not an Adequate Justification for Proceeding Anonymously"

|

From Judge Robert Chambers (S.D. W. Va.) Friday in Roe v. Gozal; plaintiffs are suing a medical school dean for allegedly retaliating against them as MD/PhD students because of his conflict with their father, who had been a rival candidate for dean:

Federal courts disfavor pseudonymous litigation. Such litigation "'undermines the public's right of access to judicial proceedings' because 'the public has an interest in knowing the names of litigants, and disclosing the parties' identities furthers openness of judicial proceedings.'" "Nevertheless, district courts may, in their discretion, allow pseudonymous litigation because 'privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation.'" …

[T]he types of personal intimate information justifying anonymity for litigating parties have typically involved such intimate personal matters as birth control, abortion, homosexuality, or the welfare rights of illegitimate children or abandoned families." The subject of Plaintiff's suit—Defendant David Gozal's alleged retaliation against Plaintiffs—is not nearly as sensitive….

The Court finds that Plaintiffs have a credible fear of retaliation. A letter they attached to their Reply supports their claim that Mr. Gozal retaliates against critics and whistleblowers through his control of Marshall faculty. [The letter appears to be from physician assistant students at the medical school. -EV]

Read More

A Wall Of Separation Between LGB and T

The Log Cabin Republicans will no longer advocate for transgender issues.

|

Shortly after Obergefell was decided, it became clear that transgender rights was simply the next stop on the train. But the pairing of LGB and T never made sense to me. Gays and lesbians urged society to accept them as they are. Transgender people compelled society to accept they as they are not. More pressingly, transgender rights advocates focused nearly all of their efforts on children: bathrooms in school; teachers telling students to lie to their parents about secret transitions; medical procedures for minors; biologically male athletes in sports; and so on. For generation, gay men were targeted for grooming young children. Growing up in New York City in the 1990s, I heard nonstop jokes about gay priests and Boy Scout troop leaders abusing kids. Yet the T in LGBT focused on the kids.

The issues for gays and lesbians always seemed quite different. I wondered whether gay rights groups were quietly concerned about this merger of LGB and T, but didn't speak up for fear of being labeled transphobic. I think the other shoe has finally dropped.

The Log Cabin Republicans will no longer advocate on transgender issues. Ross Hemminger, the President of LCR, published an essay in Townhall discussing the issues.

In 2015, the Log Cabin Republicans Board of Directors voted to add the "T" under the umbrella of our mission — out of a belief that all adults should be allowed to pursue their own happiness, free of government interference, as long as it did not impede on the inalienable rights of others.

At the time, we did not believe that we would find ourselves where we are today. The transgender movement has ceased focusing on adults at all — nearly all of their efforts and those of their aligned special interest groups focus on minors. They push schools to teach radical gender ideology; they want biological men in women's sports regardless of the consequences; perhaps most offensively, they support gender reassignment treatments for minors, often without the knowledge or consent of the parents, knowing full well these treatments are mostly irreversible.

And Hemminger recognizes how support for gay marriage is declining because of transgender ideology.

Gay men and women are losing public support across the country, and support for gay marriage and other once-widely accepted rights is eroding. Why? Because many voters today weren't alive or cognizant of the politics of gay marriage winding its way through the courts and gaining ground in public opinion. Their view of the gay community is based on today's radical transgender activists with their unnecessary and discomfiting focus on America's youth.

That is why, after significant discussion with our membership, our Board of Directors voted to refine Log Cabin Republicans' national advocacy focus to concentrate specifically on issues of sexual orientation and conservative values — in other words, we are an LGB advocacy organization, as our founders envisioned and as our moral center calls us to be.

The New York Times quotes Danny Stevens, who previously served as the President of the Houston Chapter of the Log Cabin Republicans:

Danny Stevens, a former president of the Log Cabin Republicans chapter in Houston, said he thought the national group had made a smart move by abandoning trans rights issues, which it embraced in 2015.

The issue was a nonstarter for many Texas Republicans.

"At some point, I just kept thinking, why are we spending all this time convincing Republicans that we're not crazy while associating ourselves with a movement pushing things most of them are never going to accept?" Mr. Stevens wrote in a text message on Tuesday.

He wishes the national Log Cabin group had abandoned trans issues sooner, he said. "I actually think it was necessary," he said, if the group "wants to keep making progress within the Republican Party." 

I spoke at Danny's chapter in Houston last year about Obergefell. I explained that regardless of what one thinks about same-sex marriage, Justice Kennedy's decision was legally indefensible, and a shaky foundation on which to build the institution. The audience was respectful, even if they disagreed. During Q&A, there were a number of questions about transgender rights, and it was clear to me which way the members were trending.

Danny actually stepped down from leadership, largely due to LCR's stance on the transgender issue. I asked Danny if I could publish his letter, and he gladly shared it. I think Danny makes some important points here that are worth considering:

Read More

Oklahoma Attorney General Responsible For Two Terrible Supreme Court Decisions Loses Gubernatorial Primary

I'd like to think Drummond lost because of St. Isidore's and Glossip.

|

It is often said that A.G. is short for "Aspiring Governor." Such was the case in Oklahoma, where Attorney General Gentner Drummond ran for the Republican Gubernatorial Primary. The AP has now called the race, and Drummond lost by less than a percentage point.

I usually do not comment on political races, but Drummond deserves some heat.

First, Drummond argued that his own state's charter school program was unconstitutional. He litigated St. Isidore up to the Supreme Court where the case was affirmed by an equally-divided court. President Trump even mentioned this case in his social media endorsement of Drummond's opponent: "He even SUED to BLOCK a religious based charter school strongly supported by my Administration — Very troubling for Educational Freedom, and an outright attack on Christianity!"

Second, Drummond hired his lifelong friend to review the capital conviction of Richard Glossip. Drummond then asked the Oklahoma Court of Criminal Appeals to vacate the death sentence. That court refused to revisit the case. Ultimately, the Supreme Court ruled that the OCCA had misinterpreted federal law. There were so many problems with that case. But even more troubling, as my colleague Paul Cassell pointed out, is Drummond's own conduct. Justice Thomas wrote in his dissent that Drummond "collusively excluded . . . highly relevant evidence" from the record.

To add insult to injury, Drummond also seemed to support Justice Gorsuch's disastrous decision in McGirt. Based on the electoral map, Indian country seemed to vote strongly against Drummond.

As the returns stand now, only 2,000 votes separate Drummond and his opponent. I'd like to think that some of those votes are due to the positions Drummond took before the courts.

AI in Court

"Counsel Took Full Responsibility for His Mistakes, Was Not Evasive, and Prioritized Candor to the Court and Opposing Counsel"

|

From Judge Jennifer Choe-Groves (Ct. of Int'l Trade) Thursday in Disruptive Resources, LLC v. Ballistic Barrier Prods. Inc. (D. Del.):

Before the Court is an action involving claims of patent infringement between Plaintiff Disruptive Resources … and Defendants Ballistic Barrier Products Inc. and Mayday Security Solutions LLC …. After Plaintiff's counsel disclosed to the Court that the previously filed Joint Claim Construction Brief … featured multiple errors due to his use of generative artificial intelligence ("AI"), the Court ordered counsel to show cause in writing as to why the Court should not impose sanctions for counsel's conduct pursuant to Federal Rule of Civil Procedure 11 ….

In counsel's letter to the Court, counsel described the events that led to his disclosure of inaccuracies attributable to generative AI. Portions of counsel's reply brief in support of Plaintiff's claim constructions "included an erroneously proposed construction that deviated from the construction of the terms Plaintiff had advanced through the claim construction process[.]"

Counsel stated that he used the AI system "Strongsuit" to generate an initial outline of Plaintiff's reply brief and to pull statements from a deposition that supported Plaintiff's position on claim construction. Counsel used directed prompts to complete an initial draft of the reply brief that integrated extrinsic evidence mentioned in the deposition.

When editing the draft, counsel "jumped from section to section" and mistakenly "believed [he] had edited the entire brief, when in reality, [he] had missed the 1-page section" that proposed an incorrect construction. Counsel admits that he failed to conduct a final review of the entire brief and "overlooked some of the arguments being made."

Upon discovering the erroneous statements in the brief, counsel notified opposing counsel and proposed amending the Joint Brief to implement footnotes to address the erroneous proposed constructions. The Parties later filed a [Joint Letter] disclosing these issues to the Court. Counsel argues that his actions did not violate Rule 11 or any rules of professional conduct because the reply brief was not presented for an improper purpose, the claims and legal contentions were supported by authentic existing law, and all factual contentions were supported by evidenceCounsel suggests that his errors were "more akin to taking litigation positions that are ultimately borne out to not be adopted by the Court."

Read More

Evidence

"That Fire Burns Is an Inference Nearly as Old as Human History"

|

A short excerpt from one part of Pudans v. Frank Rieman Music, Inc., decided Wednesday by the Iowa court of Appeals (in an opinion by Judge Sharon Soorholtz Greer):

Pudans and [Defendants] the Donahues are next-door neighbors…. According to Pudans, on the Fourth of July in 2017, fireworks set off from the Donahues' property damaged her swimming pool….

[T]he Donahues … argue Pudans's claim that the Donahues' fireworks burned a hole in her pool liner could not survive summary judgment without expert testimony on causation. In response, Pudans points to her affidavit that detailed her experience as a swimming-pool owner. There, she testified she observed there were no "black spots" and no damage to the liner on July 4, 2017, before the fireworks; she witnessed fireworks from the Donahues later that day; and the next day, she found "black marks" and damage to the pool liner. Spent fireworks were removed from her pool filter.

The gist of the Donahues' argument is that swimming pools are full of water, water usually puts out fires, and therefore you need an expert to prove flaming fireworks debris could burn a pool liner that has water above it. And to their point, the Donahues obtained an expert—one that apparently has a colorful personal history with Pudans—who will testify he does not believe fireworks can burn a pool liner through approximately four feet of water.

Read More

Free Speech

No Pseudonymity in Lawsuit Against Apple for Allegedly Enabling Stalking Via AirTags—Other Courts Had Allowed Pseudonymity

|

As a reminder of just how badly split courts are on a wide range of questions related to the law of pseudonymous litigation, from Judge Kent Wetherell (N.D. Fla.) Wednesday in Doe v. Apple, Inc.:

This case is before the Court based on Plaintiff's motion to proceed under a pseudonym. No response is needed. {Even if the motion is not opposed by Defendant (as it appears that it will not be), the Court is not required to grant it.}

Plaintiff has asserted multiple claims against Apple, Inc., related to its design, manufacture, and marketing of the Apple AirTag. The claims are based on a former paramour's alleged use of an AirTag to stalk Plaintiff.

Plaintiff seeks leave to proceed anonymously because the litigation will require the disclosure of intimate aspects of Plaintiff's life (e.g., domestic violence, sexual harassment) related to the stalking. She is also concerned that requiring her to disclose her identity could enable her stalker to locate her, thereby creating a safety risk for her and her minor child.

"A party may proceed anonymously in federal court by establishing 'a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.'" …

"[C]ourts have[, however,] often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" … [T]he circumstances underlying the complaint have [also] apparently already been aired in a state restraining order proceeding….

Read More

Free Speech

5 Years of the Journal of Free Speech Law, 150 Published Articles

|

I'm pleased to report that it has been 5 years since the Journal of Free Speech Law published its first article, and since then we've published a total of 150. We've published some of the top people in the field from some of the top law schools, such as Geoffrey Stone (Chicago), Genevieve Lakier (Chicago), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Lee Bollinger (Columbia), Stuart Benjamin (Duke), Joseph Blocher (Duke), Mark Tushnet (Harvard), Andrew Koppelman (Northwestern), Jeremy Waldron (NYU), Cynthia Estlund (NYU), Christopher Yoo (Penn), Mark Lemley (Stanford), Danielle Citron (Virginia), Jack Balkin (Yale), and Robert Post (Yale),

But we've also published professors from other law schools; professors from other disciplines; authors from other countries; and a few law students or fresh law school graduates whose articles have been accepted through our blind review process. The articles have been cited so far in 14 court cases, over 500 articles, and over 140 briefs. And note that all the articles have only had five years or less to attract these citations.

We also publish quickly (by the standards of academic journals), if that's what authors would like. Several of our most recent articles, for instance, were published 3 to 5 months from when we received them, and that includes the time stemming from the authors revising their articles in various ways (which we certainly allow, if the author is willing to take the time). We have published articles as quickly as a month after we received them, when the author has wanted to move fast.

To my knowledge, many top student-edited journals are shut down for the Fall and Winter (or are about to shut down), and won't review manuscripts until February. That means the manuscripts probably wouldn't be published until the end of 2027, or even later. But if you submit to us now, and want to publish quickly, you can have the article out by the end of 2026.

Read More

More

Recent Volokh Posts

1

Israeli-American Emory Professor's Defamation Case Against CAIR Georgia and Emory Student Can Go Forward (in Part)

2

Today in Supreme Court History: August 27, 1948

3

Open Thread

4

High School's Ordering Parents to Remove Pink "XX" Protest Wristbands at Girls' Soccer Game Likely Violated First Amendment

5

Prosecution of Congresswoman for Assaulting and Impeding Federal Officials at ICE Delaney Hall Detention Facility Can Continue

6

Court Upholds N.Y. Law Mandating Platforms Post Terms of Service and Report How Content Moderation Policies Have Been Enforced

7

What Is "Reasonable" Gun Control?

8

Suspension of Couple's Gun Rights Because Their College Student Daughter Drew Allegedly Threatening Images Violated Second Amendment

9

"A Lawsuit Showing up in Future Educational or Employment Screenings" "Is Not an Adequate Justification for Proceeding Anonymously"

10

ExhibitAI.Info Aims to Comprehensively Track U.S. Litigation Over AI Product Harms

Reason's July 4 Special!

For America's 250th, Get 2 Years of Reason for $17.76

Celebrate your independence with a subscription to Reason magazine, your most trusted source of honest, insightful news and analysis.

Subscribe to Reason