7/30/1956: Congress enacted a resolution, declaring that the motto of the United States is "In God we Trust." The Supreme Court declined to grant review in Newdow v.Congress, which considered the constitutionality of that motto.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
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Rebekah Jones, Claimed 2020 Florida Health Department COVID-19 Whistle-Blower, Loses Lawsuit Over Firing
From Jones v. Florida Dep't of Health, decided by Florida Court of Appeal Judges Joseph Lewis, Ross Bilbrey, and Thomas Winokur:
Jones was … the Environmental Health Program Consultant in the [Florida Department of Health] Division of Disease Control and Health Protection. In March 2020, as part of DOH's response to the COVID-19 pandemic, Jones was assigned to work on the Department's "COVID-19 Dashboard" to provide an interactive illustration of COVID-19 testing data to the public. The parties agreed that Jones' chain of command began with her immediate supervisor, IT Director Craig Curry. Their Division Director was Dr. Carina Blackmore. Authority proceeded to then-Deputy Secretary Dr. Shamarial Roberson ….
[O]n or about April 9, 2020, Curry learned that Jones had posted Facebook messages identifying herself as the person who maintained DOH's COVID-19 Dashboard and explaining the information displayed on the Dashboard. About twelve days later, Curry discovered that Jones had given an interview to DOH's outside geographic information system (GIS) vendor describing her work as the Dashboard manager.
Curry also found out about a blog Jones published, representing herself as the author of DOH's COVID-19 Dashboard and posting charts of DOH data she had created stemming from her job duties. Curry was concerned that Jones had not obtained permission from DOH's Office of Communications before making these public statements as a DOH representative about the Dashboard information.
In late April 2020, to facilitate the State's plan to reopen counties with lower rates of new COVID-19 infections, Jones was tasked with creating and presenting reopening criteria to include on the Dashboard. Jones presented her work on this "county scorecard project," including positivity rates for each county, to Deputy Secretary Roberson on April 26, 2020.
According to Jones, Roberson disapproved of Jones' presentation because her COVID-19 figures exceeded the target percentage rates for reopening many counties. {The veracity of Jones' allegations is immaterial to our disposition.} Jones testified that Roberson instructed her to reconfigure the data by lowering the infection rates and exempt counties with smaller populations from the "scorecard" materials.
Viewpoint and Race Discrimination Claim in COVID Relief Grants Can Go Forward
A short excerpt from the long opinion today in African People's Ed. & Defense Fund, Inc. v. Pinellas County, written by Eleventh Circuit Judge Kevin Newsom, joined by Judge Andrew Brasher and District Judge Paul Huck (S.D. Fla.):
Florida nonprofit African People's Education and Defense Fund twice applied for COVID-relief grants from monies made available to Pinellas County by the federal government. The Pinellas County Board of Commissioners initially approved APEDF's first grant request but later revoked that approval; the Board denied the group's second grant application outright.
APEDF sued, contending that the Board had revoked the first grant and denied the second on the basis of race and because of the group's association with the "Uhuru Movement"—which APEDF describes as a collection of "like-minded groups and individuals promoting Black community empowerment."
The court allowed APEDF's First Amendment to go forward:
Where, as here, the government is doling out public funding, it operates as a sovereign rather than as an employer. Pinellas County wasn't seeking an ongoing relationship with APEDF, nor was it offering to pay APEDF to perform a service or to act as an agent. Rather, it was simply determining whether APEDF's contributions to the public justified an award of grant money. In that respect, APEDF is less like an employee or a traditional government contractor and "more like [an] ordinary citizen[ ] whose viewpoints on matters of public concern the government has no legitimate interest in repressing."
Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit
The recommendation includes entry of a default judgment against Boteach in a defamation lawsuit brought against him by a Florida hotel.
An excerpt from today's long Report and Recommendation by Judge Marty Fulgueira Elfenbein in Fontainebleau Florida Hotel, LLC v. Jacob:
This action arises from an encounter between Defendant and then-hotel guest Faiz Akbar … in the lobby of Plaintiff's hotel in December 2024. The Parties sharply dispute the nature of the encounter, who initiated or escalated it, and whether Plaintiff responded appropriately to Defendant's subsequent complaints.
Plaintiff's operative First Amended Complaint alleges that Defendant published false statements concerning the incident and Plaintiff's response to it, including statements that Plaintiff discriminated against Defendant because he is Jewish, knowingly permitted an antisemitic assault to occur on its premises, removed Defendant rather than the alleged aggressor, and refused to cooperate with law enforcement. Based on those allegations, Plaintiff asserts claims against Defendant for defamation and tortious interference with business relationships.
Defendant filed a Counterclaim and Third-Party Complaint asserting claims against Plaintiff and naming Jeffrey Soffer … and Akbar as Third-Party Defendants. Defendant's Counterclaim alleges, among other things, that he was subjected to an antisemitic verbal attack at the hotel, that Plaintiff failed to protect him or adequately cooperate with the ensuing investigation, and that Plaintiff thereafter excluded him from its properties. Defendant asserted claims under federal civil-rights statutes and a claim for tortious interference with business relationships….
The merits of the Parties' competing claims are not directly before the Court in the Motion for Sanctions. Instead, the dispute concerns Defendant's conduct during the litigation, the meaning and scope of the District Court's February 20, 2026 Order …, and whether Defendant's subsequent social-media activity violated that Order in a manner warranting sanctions under Federal Rule of Civil Procedure 16(f) or the Court's inherent authority….
No Pseudonymity for the Pretend Date in Pentagon Contractor's Suit Over Hidden Date Recording by O'Keefe Media Group
First, a quick summary from today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
The court held that Heidi, who was sued as one of the defendants, couldn't remain pseudonymous:
Throughout this litigation, Defendants have maintained that [Heidi Doe]'s name should be sealed…. Defendants … assert that [Heidi]'s true name must be kept under seal on the basis that her identity is protected by the District of Columbia reporter's shield law. In the alternative, they argue that good cause exists under Rule 26(c) to maintain [her] pseudonym….
Defendants still have not shown [Heidi] is protected by the Shield Law. The District's Shield Law prohibits the compulsory disclosure of "the source of any news or information procured by [a] person while employed by the news media and acting in an official news gathering capacity," creating an absolute privilege for the identities of sources.
The court previously denied Defendants' motion on the ground that they did not present any evidence—"not even a declaration"—to support treating as a source rather than as a journalist. Defendants this time come armed with a declaration from [Heidi], but the declaration only reinforces the court's previous determination that [Heidi] is not a source within the meaning of the Shield Law.
A Bit on Pentagon Contractor's Wiretapping Claim Over Hidden Date Recording by O'Keefe Media Group
First, a quick summary from today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
Mannina sued on various grounds; I discussed the court's treatment of plaintiff's defamation and false light claim in this post, and its treatment of the fraudulent misrepresentation claim in this post. Here's what the court had to say about the wiretapping claim:
Pentagon Contractor's Fraudulent Misrepresentation Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward
From today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
Mannina sued on various grounds; I discussed the court's treatment of plaintiff's defamation and false light claim in a separate post, but here's what the court had to say about the fraudulent misrepresentation claim:
A claim of fraudulent misrepresentation requires proof of "(1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation." Plaintiff alleges that [redacted] "knowingly and deliberately misrepresented herself to Mr. Mannina for the purpose of targeting and entrapping him into making remarks that could be distorted for political and harmful purposes." Using her "inauthentic profile," falsely represented she was romantically interested in Plaintiff, when in fact "[s]he was simply part of an intentional targeted operation against individuals perceived to be Democrats to materially and falsely discredit them." And her false representations were "material to inducing" Plaintiff to go on the two dates with [redacted] and discuss his views and career.
{OMG and O'Keefe's motion does not itself offer any substantive arguments [apparently referring to arguments related to the elements of the fraudulent misrepresentation claim]. It rather accuses Plaintiff of "blam[ing] a lady for not being honest as to her motives" instead of "blaming himself for having a big mouth and spilling secrets." Apparently, his "audacity is similar to a man who kills his parents and then throws himself upon the mercy of the court, claiming that he is an orphan."}
Defendants first appeal to the First Amendment. They contend that the First Amendment precludes a fraud claim against undercover journalists both because "a plaintiff cannot use a fraud label to end-run the constitutional safeguards that apply to speech about matters of public concern" and because the First Amendment "does not countenance using fraud claim to punish the publication of truthful information on a matter of public concern." …
Pentagon Contractor's Libel Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward
From today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
The publication of these videos caused Plaintiff to lose his job. Plaintiff subsequently brought this action alleging defamation, false light, fraudulent misrepresentation, conspiracy, and violations of the District of Columbia and federal wiretapping statutes….
Plaintiff alleges that, "[t]hrough numerous edits and splices from statements made throughout both dates, and even between each date, the various videos and articles … were created to intentionally provide false or implied evidence to support Defendant OMG and O'Keefe's fabricated claims that [Plaintiff] was essentially attempting to launch an unlawful coup against President Trump."
Specifically, he alleges that "Defendants falsely state or imply in their [publications] that Mr. Mannina was a senior Pentagon Official providing direct advice to the [Joint Staff] and part of a subversive 'Deep State' that held covert meetings with retired military leaders, including admirals and generals, who were collaborating from within the Pentagon on the means to undermine and counteract the incoming Trump administration … in highly secure locations, including 'The Tank', that were 'reserved for critical defense deliberations.'" "Defendants further falsely state or imply that [Plaintiff], in his official capacity, was lying, spying, conspiring to commit a coup, and acting unethically." …
New Article on "The State Constitutional Case Against Exclusionary Zoning"
It is the first comprehensive analysis of how to use state constitutional law to combat exclusionary zoning. Coauthored with Josh Braver.
My new article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver) is now up on SSRN, available for free download. It will soon be submitted to law reviews! Here is the abstract:
Exclusionary zoning is the biggest cause of the housing crisis besetting many parts of the United States. This Article shows how state constitutions can be used to combat it through two complementary paths: litigation under existing constitutional provisions and constitutional amendment. It provides the first comprehensive account of state constitutional jurisprudence on exclusionary zoning across all fifty states. It finds that state courts have rarely imposed meaningful limits, but uses this body of law as a foundation for expanding constitutional protection.
Most state courts have interpreted their takings clauses in lockstep with federal doctrine, including the highly deferential Penn Central test. New York, Pennsylvania, and New Jersey have developed more aggressive approaches. But their equivocal results have led many scholars to conclude that courts have little useful role to play.
We reject that conclusion. We identify two effective and judicially administrable approaches grounded in state takings and due process doctrine. The Article also proposes state constitutional amendments that would require compensation for exclusionary zoning, categorically prohibit specified exclusionary practices, or adopt more limited reforms. Together, litigation and amendment offer a practical state constitutional strategy for addressing exclusionary zoning.
This article builds on our earlier coauthored work, "The Constitutional Case Against Exclusionary Zoning," published in the Texas Law Review (we also published a shorter, nonacademic version in the Atlantic). There, we make the case that most exclusionary zoning violates the Takings Clause of the Fifth Amendment. We hope that federal courts will eventually adopt that view. But state constitutional law can be used to address the problem more swiftly, and states need not wait for federal courts to act.
Josh a progressive living constitutionalist, while I am a libertarian originalist. But we agree on this crucial issue. And we hope others might, as well.
"I Rushed out Already Moist. My Mouth. I Want My Face. We Just Carry It On."
From the Complaint in Kivler v. Wolf Licensee LLC, just removed to E.D. Pa.:
E.K., is a 16-year-old student athlete, who won her [wrestling] match at the district championship.
Shortly after being crowned district champion on February 21, 2024 [likely a typo for 2026 -EV], a reporter from Fox56 (Wolf) requested to interview E.K, and E.K. agreed. During this recorded interview, E.K. described the match and her strategy for how she planned to prevail.
However, on February 24, 2026, Defendants published the Article that did not use the quote E.K. provided, but rather an entirely different quote that E.K. never said and completely inconsistent with the recorded audio. Specifically, the Article attributed the following quote to E.K, a young girl: "I rushed out already moist. My mouth. I want my face. We just carry it on. So I knew what she was going to go for. Somebody gets it. I knew she was going to make a few mistakes, but not everybody makes mistakes. They were was. 20."
Cert Denied, Cert Delayed, Cert Granted
In at least four cases, the Court denied cert over three dissentals, and then resolved the same issue a year or more later.
As I reviewed the wall of receipts for cert denials, I noticed something of a pattern. In several cases, the Supreme Court denied certiorari over three dissenting votes. Invariably those three dissenters were Justices Thomas, Alito, and Gorsuch, though in some cases Justice Kavanaugh provides the third. Yet, a year or more later, the Court resolved the same or similar issue that was presented in another case. In recent years, the Court has taken to relisting a petition before granting it to make sure there are no vehicle problems. Indeed, some cases are relisted for months at end, only to be granted, like the AR-15 case. But in a handful of cases, the path to a cert grant is a cert denial.
Consider four examples.
In July 2021, the Supreme Court denied cert in Arlene's Flowers v. Washington, over dissents from Thomas, Alito, and Gorsuch. This case had started way back in 2013. Two months later a cert petition was filed in 303 Creative v. Elenis, which was granted in February 2022. In June 2023, the Court ruled that requiring the designer to make a website for a gay wedding violated the Free Speech Clause of the First Amendment. This was the issue presented, and denied in Arlene's Flowers. About two years lapsed between the cert denial and the issue being resolved.
In December 2023, the Supreme Court denied cert in Tingley v. Ferguson, over dissents from Justices Thomas, Alito, and Kavanaugh (but not Gorsuch). This case challenged Washington state's ban on talk "conversion therapy." Eleven months later in November 2024, a cert petition was filed in Chiles v. Salazar. This case challenged Colorado's ban on conversion therapy. Cert was granted in March 2025, and Colorado's law was declared unconstitutional in March 2026 by an 8-1 vote. Again, about two years lapsed between the cert denial and the issue being resolved.
In December 2024, the Supreme Court denied cert in Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin, over dissents from Justices Thomas, Alito, and Kavanaugh (but not Gorsuch). This case was a challenge to a school's policy to encourage students to "transition" without parental knowledge or consent. About a month later, an emergency application was filed in Mirabelli v. Bonta. In March 2026, the Supreme Court decided Mirabelli on the interim docket, largely settling the question presented in Parents Protecting Our Children. Here, about a year lapsed between the cert denial and the issue being resolved.
In June 2025, the Supreme Court denied cert in Snope v. Brown, over dissents from Justices Thomas, Alito, and Gorsuch. This case had been stuck in docket purgatory for nearly eight months. Justice Kavanaugh concurred in the denial of cert, but wrote "this Court should and presumably will will address the AR–15 issue soon, in the next Term or two." The Court took two such cases about a year later in July 2026. A decision is likely to come by July 2027. Here, about two years will lapse between the cert denial and the issue being resolved. Though, to be fair, this issue has been pending since 2008 or so after Heller was decided. So the more accurate count is about two decades.
What can explain each of these changes? Well, the cert grant means that a Justice who did not join the dissental flipped his or her vote to grant cert. After Snope, Justice Kavanaugh clearly became the fourth vote. After Tingley, I would wager that Justice Gorsuch became the fourth vote. After Parents Protecting Children, I think Justice Barrett changed course, as she wrote a strong concurrence in Mirabelli. I am not sure who flipped after Arlene's Flowers, but my guess would be Justice Kavanaugh.
I suppose the initial cert denial can be due to vehicle problems, though all of these cases are brought by sophisticated counsel who tee up the issues neatly. Something else may be going on. At least in Snope, Justice Kavanaugh apparently just wanted to clear some other items off the docket before going for the AR-15 case.
During her congressional testimony, Justice Kagan seemed quite content with the Court only granting sixty cases a year. I bet. I presume that the Court's progressives do everything in their power to keep away liberal lower court rulings that could get reversed. Kagan offered this rosy account of the docket size:
I would say we have about an ordinary regular docket. If you look back a number of decades, the docket has gone down. When I clerked at the Court, I'm afraid to say how long ago, in the late 1980's, the Court handled about 140 cases a year. The Court now handles in terms of regular argued cases maybe 70 cases a year, so a significant decrease. There is a cottage industry and explanation for why that decrease took place over time. All the time that I've been on the court we've been relatively stable. So the last fifteen years or so we are doing about one year it's 75, one year it's 60, it's something on that order. So we continue to hear cases every month and to always issue all our opinions before July 4 every year.
The number has not been 75 for some time. It has not been 70 for some time. 65 would seem like a bumper crop. We are now consistently below 60. Of course, what matter is not just the raw number. Does anyone really care about how many ERISA cases are decided? What matters are the sorts of cases that divide the nation. And in at least two dozen cases I've identified, the most hot-button issues seem to keep getting denied with three dissenting votes.
As I'll explain in a future piece, a Justice should be evaluated not just based on the merits votes they cast, but on the cases they place on the docket. Justices Thomas, Alito, and Gorsuch are the most aggressive justices who wish to resolve issues that split the lower court. Justice Kavanaugh has gotten better on this front, and now seems to be following through on his promise, at least in the AR-15 context. Justice Barrett, from everything I can tell, is the least cert-eager Justice on the Court.
Justice Barrett relayed a relevant anecdote at a book event (it was not recorded, so I am trying to recreate it from memory.) Every year, she asks her law clerks at the start of the term to find cases that should be granted. Then, at the end of the term, she asks if there were some cases that should have been granted, but were not. Apparently, the clerks tell her that no cert-worthy cases were missed. Well, what the clerks are saying is that Justices Thomas, Alito, Gorsuch, and Kavanaugh just don't know what makes a case cert-worthy. Ahem.
Justice Barrett has only ever dissented from the denial of certiorari once. Her caution and hesitancy keeps the docket small, much to Justice Kagan's delight. Much more to come.
Court Rejects Lawsuit Alleging Religious Liberty Commission Isn't "Fairly Balanced"
From Interfaith Alliance v. Trump, decided Monday by Judge John Cronan (S.D.N.Y.):
[A.] [T]he Federal Advisory Committee Act ("FACA") … reflects a compromise: Congress was concerned about advisory committees being dominated by special interests, but also realized that such committees could be useful sources of advice and ideas. So instead of saddling advisory committees with endless red tape, Congress imposed relatively light requirements, [including that] a committee's membership must be "fairly balanced" in light of the functions it performs….
This case presents a FACA challenge to the Religious Liberty Commission (the "RLC" or the "Commission"), an advisory committee established last year by President Donald J. Trump. The RLC consists of up to fourteen voting members appointed by the President and is tasked with producing a report on the foundations of religious liberty in America and the current threats to its exercise.
Plaintiffs argue that the Presidentially-appointed members of the RLC are not fairly balanced ….
[B.] Plaintiffs … fail to state a claim … [in part because] the RLC's membership has a fair balance of viewpoints given the functions it performs….
Because the Court disposes of this case on those grounds, it assumes, for the sake of argument, that whether an agency's membership is fairly balanced is reviewable under the APA because it is not "committed to agency discretion." … [T]his question has deeply divided the courts ….
Some Tentative Thoughts on Substack
I launched my original blog on WordPress back in September 2009, shortly after I graduated law school. At the time, I was also very active on the nascent Twitter to promote my posts. Over the past seventeen years, the landscape has changed quite a bit. Podcasts have surged in popularity. Advisory Opinions, Strict Scrutiny, and others command massive audiences, and their hosts write best-selling books. Social media has shifted from long-ish threads to bite-sized POV videos. And Substack has emerged as a popular platform that authors can monetize.
The Volokh Conspiracy has moved from place-to-place, but has remained largely the same: posts by a host of authors are sorted chronologically. Indeed, I think it is a testament to Eugene's vision that this platform has endured for more than a quarter century. True enough, some bloggers have come and gone. I joined in late 2019. Others have left the site to publish on their own platforms. Still, the Volokh Conspiracy has had remarkable stability in this field.
Many readers frequently ask if I would set up a Substack. My usual response is that all of my posts are freely available on the Volokh Conspiracy. They reply that Substack makes it easier to read content in newsletter form, delivered right to their inboxes. That point is fair enough, but there is some extra amount of work that goes into preparing newsletters. As regular readers know, my posts are usually a form of stream of consciousness that could benefit from more proof-reading. I can justify this approach because, as I often say, readers get what they paid for. To be sure, Reason.com does provide some advertising revenue, which is split among the bloggers, but the amount is not sufficient to align incentives.
At least for me, the primary reason I write is to reach as broad an audience as possible to disseminate my ideas. That goal runs headlong with the entire notion of a paywall. At some level, it irks me that law professor charge people for their work. Our job is to diffuse information to the world. Law professors are fortunate that law reviews publish their articles online without fee. In other disciplines, peer reviewed journals are extremely expensive to access. From time-to-time, professors publish Op-Eds in major outlets like the New York Times or Wall Street Journal. On someone else's platform, the paywall cannot be avoided. But why should a professor erect his own paywall?
The simple answer is money. Do the math. Look at what some law professors charge for subscriptions to their Substacks, and multiple that figure by the number of paid subscribers. And that fee increases every month as more subscribers join. I suppose subscribers can quit if the content is not up-to-snuff, but my impression is that once a subscription starts, it is hard to break. (I have far too many streaming and other subscription fees each month.)
I would like to think that, at the margins, a predictable revenue from subscriptions would create at least some incentives to more properly format a weekly or daily newsletter. That cost might also allow for greater interaction with audiences that is not really possible on a blog. There also might be greater incentives to self-publish some of the essays that I might otherwise submit to other platforms. Those works could be published right away, and avoid the several-day lead time for the editorial process to proceed. Indeed, that subscription revenue could take the place of one or more speaking honorariums each month, requiring less time for traveling, to provide more time to write. As I get older (and yes, I age), the appeal of regular travel diminishes.
Still, the thought of paywalling my own content bothers me. The best solution that I worked out would be to make my posts available right away on Substack behind a partial paywall--that is, the first few paragraphs would be freely available, but the rest would require a subscription. And then some interval of time later--maybe 24 hours--the post would appear on the Volokh Conspiracy without charge. That way, all of the material will be freely available to the world, and would be indexed by search engines and AI, albeit with a slight delay. Some of the items I write are not at all timely, so the delay would not have much of an impact on readership. But some of my items are quite topical and drive conversations. These are the sorts of items where a 24-hour or longer delay might be too tough to resist.
My thoughts here are still tentative. (Surely tentative thoughts are not binding, right?) I would welcome any suggestions by email.
A Free-Exercise Challenge to NY's Medically Assisted-Suicide Law
A group of Catholic healthcare providers has filed a federal lawsuit seeking to enjoin enforcement of New York's new Medical Aid in Dying Act. Among other things, the plaintiffs allege that the Act, which takes effect next month, violates their rights under the First Amendment's Free Exercise Clause.
The litigation is at a very early stage. New York has not yet responded. Still, if the statutory regime operates as the plaintiffs allege, they appear to have a pretty good free exercise argument.
The controversy concerns a practice supporters call medical aid in dying and opponents call medically assisted suicide. I will generally use the latter term because it more directly describes the act the statute authorizes: a physician provides medication that a patient may administer to himself to end his life.
New York's existing Palliative Care Information Act requires physicians and nurse practitioners to offer terminally ill patients information and counseling about end-of-life care options. The new Act authorizes an additional option: a mentally capable adult diagnosed with a terminal illness may request medication to end his life.
The plaintiffs argue that, taken together, the statutes will require medical providers to offer information and counseling about this option. Providers unwilling to counsel patients themselves must, they say, arrange for someone else to do so, or refer or transfer the patient.
The lead plaintiffs are the Carmelite Sisters for the Aged and Infirm, an order that cares for elderly and dying people. The Carmelites object not only to prescribing the medication or allowing its use on their premises--in fact, the law does not require the Carmelites to do either. The Carmelites believe that counseling, referral, and transfer would themselves constitute impermissible cooperation with an immoral practice.
Assuming the law requires what the plaintiffs allege, that forced cooperation would probably qualify as a substantial burden on their religious exercise. Under Hobby Lobby, courts generally may not second-guess a sincere religious judgment about complicity. A court could not simply tell the Carmelites that counseling or referral is too remote from the patient's ultimate decision to count as religiously objectionable.
But substantial burden is only the beginning. Under Employment Division v. Smith, a neutral and generally applicable law ordinarily does not trigger strict scrutiny.
The Carmelites argue the new law does not apply generally because it exempts hospices, which also care for terminally ill patients and address end-of-life decisions. If hospices are exempt while Catholic nursing homes are not, comparable institutions receive different treatment. New York will presumably argue that hospices are not similarly situated, perhaps because they play a different role in patient care or enter the process after broader treatment decisions have already occurred.
If the Carmelites are correct and the law does not apply generally, strict scrutiny would apply. New York would have to show that requiring the Carmelites themselves to provide or arrange the counseling is the least restrictive means of ensuring that patients receive accurate information. That may be difficult. The state could provide a website, telephone service, written notice, independent counseling system, or list of participating providers.
In short, if the Carmelites' account of the facts and the law proves correct, their Free Exercise Clause claim seems a strong one.
Behind this case is a profound disagreement about end-of-life care. Supporters emphasize autonomy and compassion for people facing severe suffering. Opponents see medically assisted suicide as inconsistent with the duty to protect life and care for patients.
These decisions are often excruciating for patients, families, doctors, and caregivers. Abstract principles can seem inadequate in such circumstances.
But that is not the issue the court is being asked to decide. The question is narrower: whether New York may require religious institutions to participate in medically-assisted suicide in ways that violate their faith.
I discuss the case in a new Legal Spirits Short Take, available here.
U Michigan Student Sues Alleging Wrongful Discipline for Unauthorized AI Use—But Can't Sue as a Jane Doe
From Doe v. Regents of Univ. of Mich., decided yesterday by Judge Laurie Michelson (E.D. Mich.):
Plaintiff, a student at the University of Michigan, was disciplined her for alleged academic misconduct—an unauthorized use of AI to write course papers. She was put on disciplinary probation and required to write a 1,000-word reflective essay. Plaintiff maintains that she has "documented disabilities" including generalized anxiety disorder and obsessive-compulsive disorder. She alleges that her "disability-related writing traits could be misinterpreted as AI and should not be treated as proof of misconduct." Thus, on February 9, 2026, she filed this lawsuit against numerous University of Michigan officials and instructors, claiming that the disciplinary action violated the Rehabilitation Act, the Americans with Disabilities Act, and her procedural due process rights….
Doe sought leave to proceed under a pseudonym (as people suing pseudonymously generally must do), but the court said no. The court rejected her claim that pseudonymity was justified by risk of reputational harm claim:
Plaintiff's contention that she would suffer "a severe stigmatic and reputational injury" if she had to litigate under her name is unsupported. Plaintiff says that "harm cannot be fully cured by later relief" if her identity tied to "alleged academic dishonesty and to mental health information[,]" is disclosed." But "[u]nsubstantiated fears of speculative harm are insufficient to outweigh the presumption of open judicial proceedings."
[And] Plaintiff's argument that "claims of academic dishonesty" would impact her "ability to practice professionally as a physician" is not a legally cognizable consideration under Porter. See Doe v. Univ. of Akron(collecting cases where courts denied requests by plaintiffs faced with academic dishonesty allegations who claim "damage to [their] reputation" and concerns about "career opportunities")….
The Court appreciates Plaintiff's situation. But many federal court plaintiffs must face disclosure of sensitive or personal information that they would likely prefer to keep private. Plaintiff fails to carry her burden to show that her case is otherwise exceptional.
The court also reasoned that the claim didn't involve matters of "utmost intimacy":
Judge James C. Ho's Speech On "Judicial Courage" and Judicial Selection
"Nobody actually reads what people have said and written. And that’s why mistakes are made. Because if nobody reads, then it’s not about who would do the job best. It’s about who wants the job most."
Last week, Judge James C. Ho of the Fifth Circuit delivered a stirring address at a First Liberty Institute gathering. I was very impressed by the speech, and asked Judge Ho for permission to publish his remarks. He kindly agreed. The theme of the event was "Judicial Courage," and Judge Ho discusses how courage should impact judicial selection. I will include the full post below the jump, but here is an important excerpt:
Second, consider the advice that Paul gave in his first epistle to Timothy about choosing a good leader. Don't pick "a recent convert, or he may become conceited and fall under the same judgment as the devil."
Instead, recall what was done when it was time to replace Judas among the 12 disciples. As the Book of Acts explains, "choose one of the men who have been with us the whole time."
In other words, don't pick the Johnny-come-latelies—the ones who only showed up after it became socially acceptable and career enhancing to do so. Choose only from those who have been here from the beginning, even when it was hard—those who were with us, not out of convenience, but out of conviction.
So long as you've narrowed the pool that way, then it really doesn't matter who gets it—as long as they get it.
That's a far cry from how the process often plays out. There's a saying in my chambers: Nobody reads. It's true in litigation. And it's true in judicial selection, too.
Nobody actually reads what people have said and written. And that's why mistakes are made. Because if nobody reads, then it's not about who would do the job best. It's about who wants the job most.
And that's exactly wrong. It's exactly backwards. Because I want the people who are too busy to campaign—who just want to get the work done and then go home to their families.
Today in Supreme Court History: July 29, 1942
7/29/1942: Supreme Court hears oral argument in Ex Parte Quirin.
