9/18/1857: Justice John Hessin Clarke's birthday.
Today in Supreme Court History: September 18, 1857
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Circuit Rejects Limits on Border Searches of Cell Phones
And why I think they are wrong, and the Supreme Court should step in.
For the last decade or so, lower courts have been grappling with how the Fourth Amendment applies to searches of digital devices such as cell phones at the international border. Physical property can be searched when it crosses the border to advance sovereign interests in preventing the important of contraband, enforcing immigration laws, and making sure tariffs are paid. But do these rationales still apply to allow the search of a cell phone? When you travel internationally, should the U.S. government be allowed to search your cell phone without limit? Or should a warrant be required, or at least sufficient legal suspicion?
My own view is that these government interests aren't advanced by digital searches, and that a warrant should be needed to search a cell phone at the border, at least in the context of devices held by U.S. citizens. As I explained my book, The Digital Fourth Amendment, I see this as just like Riley v. California, the case holding that the search-incident-to-arrest exception does not apply to cell phones. As in Riley, the physical world government interests that justify the rule for physical property just don't carry over to the digital setting. Extending the rule to cell phones has to "rest on its own bottom," Riley tells us, and I don't think it can.
Think about it. You can't hide a person in a phone, and the data inside a cell phone isn't subject to tariffs. And while there is an interest in preventing contraband from being brought into the country in the form of digital CSAM (child sexual abuse materials), border searches of digital devices aren't actually conducted for that reason. The government searches phones when people cross the border for ordinary criminal enforcement reasons. It's trying to catch bad people, not prevent the importation of contraband. The government is searching at the border only because carrying cell phones paired with traditional border search powers gives them a windfall that helps them catch criminals. I don't think the Fourth Amendment allows them that windfall, given that these searches are categorically undertaken for ordinary criminal law enforcement, not the special sovereignty concerns justifying the border search exception. So I think a warrant is needed, at least for searches of citizens' devices. If you want the details of my argument, you can read the chapter of the book on this posted at SSRN.
Yesterday, the Second Circuit disagreed, however. In United States v. Alisigwe, the Second Circuit ruled (per Judge Menashi) that no warrant and not even any suspicion is needed to search a cell phone at the border. The case involves Chinwendu Alisigwe, a lawful permanent resident who was suspected of engagement in fraud schemes. Returning to the United States from international flights, Alisigwe was stopped at JFK by border officials who asked him to unlock his phone. He did so. Border officials looking for fraud records skimmed through his phone and saw evidence of Alisigwe's fraud crimes.
According to the Second Circuit, this was categorically allowed:
The "longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless 'reasonable' has a history as old as the Fourth Amendment itself." United States v. Ramsey, 431 U.S. 606, 619 (1977). "The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." Id. at 620. Because "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border," United States v. Flores-Montano, 541 U.S. 149, 152 (2004), "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border," Ramsey, 431 U.S. at 616.
Under our precedents, no suspicion is required before the government searches a traveler's property at the border. See United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006). Searches of property "are made reasonable by that person's decision to enter this country." Id. To be sure, nonroutine searches, which are "more invasive searches, like strip searches, require reasonable suspicion." Id. But we have held that "the label 'non-routine' should generally be reserved for intrusive border searches of the person (such as body-cavity searches or strip searches), not belongings." United States v. Levy, 803 F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added). Because a cellphone is property, our precedents establish that the government does not need to have reasonable suspicion before searching a traveler's cellphone at the border.
Open Thread
What’s on your mind?
Second Amendment Roundup: 5th Circuit En Banc to Rehear Felon Gun Ban Cases
Two cases raise Commerce Clause and Second Amendment issues.
On September 14, the Fifth Circuit granted rehearing en banc in United States v. Cordova, a Second Amendment challenge to the lifetime felon gun ban, 18 U.S.C. § 922(g)(1). That follows the July 20 en banc rehearing grant in United States v. Squire, a challenge to the same prohibition under the Commerce Clause. These cases test whether Congress had the power in the first place, and even if so, is it prohibited from doing so?
As I posted previously, Squire posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation." As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…." That issue together with Squire's Commerce Clause challenge were held to be foreclosed by circuit precedent. Section 922(g)(1) includes as an element of the offense that the person did "possess [a firearm] in or affecting commerce," or did receive a firearm "which has been shipped or transported in interstate or foreign commerce."
Unsuccessful attempts to rein in Congress on the Commerce Clause included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus. Based on the Supreme Court's decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent.
Squire's petition for rehearing en banc is limited to whether the gun ban is within the scope of the Commerce Clause. Beginning with U.S. v. Lopez (1995), he argues, the Supreme Court has held that "while the Commerce Clause permits regulation of economic activities that substantially affect interstate commerce, it does not authorize plenary federal regulation of noneconomic activity, including mere firearm possession."
When the petition was granted, Judge Stephen A. Higginson wrote a dissent, stating: "In the context of § 922 convictions alone, such a holding would raise several immediate questions. Can felons from the other eleven circuits now flood the Gulf Coast to rearm themselves? … More broadly, what would come of the countless other federal statutes hinging on Congress's well-settled commerce authority?"
Turning to the Cordova case, the per curiam opinion noted felony convictions for drug possession, which doesn't necessarily count anymore, and for evading arrest with a motor vehicle. The Second Amendment challenge was easily rejected: "Given that 'vehicular pursuits' are 'often catastrophic,' Cordova's decision to use a car to evade the police is probative of his dangerousness…. Cordova's decisions posed a risk to his fellow citizens and demonstrate that he poses a credible threat to the physical safety of others." But two judges on the panel only concurred in the judgment.
Judge James C. Ho set the tone for his concurrence by beginning: "The right to keep and bear arms under the Second Amendment is a fundamental civil right, comparable to other provisions of the Bill of Rights." The felon gun ban "imposes a lifetime ban on the possession of a firearm. And it does so even if the person has never been sentenced to serve a single day in prison." Cordova himself was not sentenced to serve a single day in prison. The Supreme Court in Rahimi held only that "[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." Concurring, Justice Gorsuch noted that "[w]e do not resolve whether the government may disarm an individual permanently." Judge Ho concluded by repeating that the ban "disarms individuals for the rest of their lives, regardless of whether the individual has been convicted of a violent crime or spent a single day in prison," but that "this case does not present a challenge to lifetime disarmament under § 922(g)(1)."
Also concurring in the judgment, Judge Andrew S. Oldham also set the tone with his opening line: "The Second Amendment reflects a fundamental, God-given right that long predates our Nation's Founding…." Characterizing Fifth Circuit precedent based on U.S. v. Diaz (2024) as "historically bankrupt," he colorfully wrote: "Rather than join the White Rabbit for another journey into our circuit's § 922(g)(1) Wonderland, it is time to say enough is enough. Diaz must go." He criticized Diaz for asking whether an offense was punishable by death at the founding, which has never been a basis for depriving a convicted person of constitutional rights, and for relying on two losing arguments at the origin of the Constitution (you have to go to Diaz to find them – the Dissent of the Minority in Pennsylvania (1787) and Samuel Adams' failed proposal for an arms guarantee in the Massachusetts convention (1788)).
Most of Judge Oldham's opinion is a history of how the right to keep and bear arms came to be. But regardless of the justifications given for depriving specified groups of arms, "all agreed that the legality of disarming seventeenth-century Englishmen turned on dangerousness." Judge Oldham concludes:
As this process shows, evaluating a defendant's as-applied challenge to § 922(g)(1) requires historical analysis. It requires looking beyond an individual predicate conviction. It requires looking at whether an individual is dangerous. That study coheres with the long English and American history of disarming dangerous people. Cordova's criminal history and characteristics demonstrate that he is dangerous. I would rely on that dangerousness analysis, not Diaz's nonsensical legal standard, to hold that Cordova's constitutional challenge fails.
All of that said, the Fifth Circuit granted Cordova's petition for rehearing en banc. His convictions were not for offenses as innocuous as, say, the decades old conviction for welfare fraud in Range v. Attorney General U.S. (3d Cir. 2024).
The 1940s: "A Systematic Avalanche of Falsehoods"
During World War II, hate speech laws were proposed and passed across the country.
During the Second World War, America was flooded with "hate literature." A "systematic avalanche of falsehoods" besieged the nation, in the words of one commentator. Native fascist groups and agents of Nazi Germany circulated pamphlets and periodicals with titles like America Preferred, The Cross and the Flag, The Defender, Patriotic Research Bulletin, and X-Ray. "Vicious literature … assailing minority groups on racial and religious grounds" was being spread in large quantity in major cities. Crude leaflets containing racist, antisemitic, and anti-Catholic invective were being distributed in war factories and at Army and Navy camps. The purpose of this "hate literature" was to undermine the morale and unity that was needed for the war effort by fomenting violence between races and religions.
This "hate propaganda" seemed to be having its intended effects. "Hate propaganda" was said to be responsible for major riots in munitions plants in Boston, Los Angeles, and Harlem that resulted in deaths and property damage running into the millions. A June 1943 race riot that killed thirty-four in the war production center of Detroit was tied to material distributed by Nazi sympathizers. In New York, attacks on Jews had been provoked by Father Coughlin's Social Justice magazine. Antisemitic gangs confronted people on the streets, demanded to know if they were Jewish, and beat them if they said they were. Gangs desecrated nearly every synagogue in Washington Heights.
Influencer Haley Kalil's Remarks About Ex-Husband Matt Kalil's Penis Size Were "Newsworthy," and Thus Not Tortious
Because her comments came in describing her marriage and her divorce, she "was discussing her life, not Matt's, and the law generally protects a person's speech about herself, even though such speech inevitably reveals details about others."
[UPDATE: An anonymous correspondent writes, "I've known some guys who thought their penis size was newsworthy but I never thought I'd see the idea taken seriously in a judicial opinion."]
From Judge Patrick Schiltz (D. Minn.) today in Kalil v. Kalil:
Plaintiff Matt Kalil ("Matt"), a former professional football player, and defendant Haley Kalil ("Haley"), a popular social-media content creator, used to be married…. As of January 6, 2026, Haley had 15.9 million TikTok followers, 9.3 million Instagram followers, 8.07 million YouTube subscribers, 1.6 million Snapchat followers, and 1.3 million Threads followers. Following her rise to fame, Haley hosted the pre-Met Gala red carpet for E! News and secured similar gigs at the Tony and Academy Awards; collaborated with stars such as the Jonas Brothers, Courtney Cox, and Ed Sheeran; was nominated for a "Streamy Award" for a sketch featuring actor Jared Leto; made Time Magazine's list of Top 100 Creators 2025; and spoke at the 2025 Creator Marketing Summit.
In November 2025, fellow social-media content creator Marlon Lundgren Garcia collaborated with Haley on a livestream on the Twitch platform ("the livestream"). At the time this lawsuit was filed, Garcia had 1.5 million Twitch followers, 3.7 million Instagram followers, 4.6 million TikTok followers, and 766,000 YouTube subscribers. Haley joined Garcia in person in Minnesota, as part of Garcia's "Mar-Athon" challenge to visit all 50 states in 28 days. The livestream was uploaded to YouTube and memorialized in a video titled "I Opened Up To Haylee Baylee."
During the livestream, Garcia and Haley sat across from one another at a small table in Garcia's recreational vehicle, and the two discussed, among other things, Haley's marriage and divorce. Without using Matt's name, Haley said that she and her (only) ex-husband are "still friends," that he is the "greatest guy in the world," and that he is "doing good" and is remarried with a baby. Although Haley and Matt had been "best friends," Haley explained, he wanted kids, and she was not ready. She noted that the two had "a couple other issues" that led to the decision to end their marriage.
After Garcia asked Haley a few more questions about her marriage and its dissolution, Haley typed a private message to Garcia into her phone—ostensibly to put the reasons for her divorce "into perspective." As she typed, Haley remarked that Garcia's face was "going to be hilarious" when he read the message. After reading the private message, Garcia thrice repeated "shut the fuck up." Haley, nodding and smiling, said that she was being serious and that she tried "it all …. [t]herapists, doctors," even investigating "lipo type of shit." Haley joked that her "life is a comedy and it writes itself," and confirmed that the issue described in the private message was "the biggest factor" in the divorce.
Iran's Expanding Campaign Against Jewish Targets Outside Israel
One disturbing aspect of the surge in antisemitic violence since October 7 has received relatively little attention: Western governments say that Iran and Iranian-backed organizations have been behind a series of plots and attacks against Jewish and Israeli targets across Europe, North America and Australia.
The phenomenon became impossible to dismiss as a collection of unrelated incidents in June. Twenty-four governments, including the United States, Britain, Canada, Australia, Germany and Sweden, jointly condemned "lethal plotting and other malign actions" by Iran's IRGC Intelligence Organization, Quds Force and Ministry of Intelligence. They specifically identified "Jewish and Israeli communities and interests" among Iran's targets and noted the Iranian security services' longstanding relationship with international and local criminal groups.
That last point is important. Iran increasingly appears to be outsourcing attacks to criminals and other intermediaries, making Tehran's responsibility harder to detect.
Sweden provides an early example. In January 2024, a live grenade was discovered at the Israeli embassy in Stockholm. That May, Sweden's security service announced that Iran was using Swedish criminal networks to commit violent acts, including against Jewish and Israeli targets. The United States subsequently sanctioned Sweden's notorious Foxtrot criminal network for allegedly carrying out the embassy attack on Iran's behalf.
The story has continued. This week Sweden expelled an Iranian diplomat and summoned Iran's ambassador over evidence of Iranian efforts to threaten Jewish and Israeli interests, as well as Iranian dissidents, in Sweden.
Iran's actions in Australia have been even more dramatic. A kosher restaurant in Sydney, Lewis' Continental Kitchen, was set on fire in October 2024. Two months later, Melbourne's Adass Israel Synagogue was firebombed.
Not Using A Smartphone Burdens Others
It is increasingly difficult to function in society without a phone. So I'll turn mine off.
The New York Times had an opinion piece today titled, "My Dumbphone Made My Life Better. It Made Everyone Else's Worse." I can relate. Since September 2023, I have gone somewhat smart-phone free on Shabbat. From Friday evening till Saturday evening, I turn off 5G, WiFi, and Bluetooth on my phone. I would keep the actual telephone on, so I could receive calls and text messages. This half-measure was my way of adhering to my religious beliefs, while also maintaining some connection with friends and family who are not observant.
From my perspective, the experience has been blissful. For a full day, no one can bother me. I get no emails asking me to do things. If someone writes something about me, I won't see it till Saturday night. And if the Supreme Court issues some emergency ruling, I don't have to deal with it. Then again, text messages from friends will often disturb my solitude. They will text me a link to a social media post, that I can't open for a full day. They will text me, "Can you believe what Justice X did"? I could ask what happened, but that defeats the point of the separation. So I spend a full day wondering what happened. Still, the benefits have been clear. People often ask me how I maintain such a productive rate of output. Turning off for a full-day helps me be much clearer for the rest of the week. It is rejuvenating.
At the same time, there are costs to going smart-phone free. I still have to function in society. Invariably, I burden others. If I need to use an uber, I have to ask someone else to call it from me. (A few times, I've actually scheduled an uber to pick me up at a hotel the night before, so I hope it pray a car actually shows up at the appointed time.) If I need directions, I have to ask someone else to check Google Maps. (I usually download offline directions, but they do not always work.) Virtually any place that involves a check-in requires scanning a QR code. (When I drop my kids off at the daycare at the gym, I have to borrow the attendant's phone to sign them in.) Ordering food is extremely hard, as most places only take orders over an app. Traveling without a smartphone is a trip. I can still download boarding passes, and print them out, but if there are any disruptions, I have to keep myself glued to the airport monitors. All the while, I have to explain to people why I can't check a smartphone. People are incredulous and confused.
This experience makes me think of the defunct standard TWA v. Hardison. Accommodating my sabbath observance imposes a burden on others, one that I would hope is de minimis.
Well, one might think this experience would push me towards using my phone again. Nope. Just the opposite I resolved this Rosh Hashanah to do a bit more. During shabbat, my phone will be off-off. Not just airplane mode. Powered down. I will not receive any calls or texts. And I will not use my laptop with the WiFi off. As productive as people think I am, I will be eliminating a full day of possible working. I still like my odds. I find myself thinking far more deeply about things if I don't look at a screen. Once shabbat finishes, I have fully-formed thoughts in my head, which I can promptly write down.
The logistics here are even trickier. I will try to not fly on Shabbat. So far, my schedule supports that. That will eliminate a lot of problems. Other situations will have to be planned around. Saturday night, for example, the FedSoc Texas Chapter Conference is host a suite at the Texas Rangers ballpark. Paper tickets are a thing of the past. I had to transfer my ticket to a colleague who can help swipe me in. There are other similar workarounds that will, invariably, burden others.
The obvious solution, of course, is to just become fully-Sabbath observant. That might be in the cards for me at some point, but it is not feasible at present. I will keep everyone apprised of this process.
Seven Federal Judges From Minnesota Talk To The N.Y. Times About Trump Administration
“It’s the rule of law. If you don’t have it, you have either anarchy or you have authoritarianism. You have Russia or you have China or you have North Korea.”
Matt Schwartz at the New York Times interviewed Judge Patrick Schiltz and six of his colleagues from the District of Minnesota.
I have a few reflections.
First, while Schiltz is named and quoted at length, it appears that only a few of the other six were quoted on the record. I think it is problematic when federal judges talk to reporters "off the record." They are not Publius. Article III judges are afforded lifetime tenure precisely because they should be able to voice their opinions. One of the judges admitted as much:
"We are allowed to speak out about judicial independence," said Judge Nancy E. Brasel, whom Mr. Trump appointed in 2018. "And so we should, in order to keep it."
Of course, judges are supposed to voice their opinions in, well, judicial opinions, not the New York Times. Judges should resist the urge to speak to reporters, especially without putting their names to the quotation.
Some of these interviews very well may violate the canons of judicial ethics. By hiding behind anonymity, the public--and litigants in particular--may not be aware of whether a motion to recuse is appropriate. A spokesperson from DOJ said "suggested that they [should] consider recusing themselves if they 'have made public comments on pending or related matters.'" But how will anyone know what was said?
Second, the article mentions repeatedly that Judge Schiltz clerked for Justice Scalia. It appears that then-Judge Scalia hired Schiltz as a law clerk, and then brought him to the Supreme Court after his confirmation. Why is this fact relevant? The unstated subtext is that even a conservative judicial appointee rules against Trump. But the fact that Schiltz clerked for Scalia doesn't tell us much of anything. Ed Whelan, a friend and fellow Scalia clerk, interviewed Schiltz back in May 2026. The takeaway, from my perspective, is that Schiltz had no public conservative bona fides at Harvard Law School. Judges Ruth Bader Ginsburg and Harry Edwards were ready to hire him, but Scalia did so first. Moreover, there are several Scalia clerks (not the counter-clerks), as well as Thomas and Alito clerks, who turned out to be not-so-conservative.
Schiltz might have become a remarkable judge, but his first job out of law school is a non sequitur. We need to stop pretending that an employment decision made when a person is about 25 years old defines who they are for the rest of their life. It's not. And "close" private ties count for little.
Third, the article stresses that Schiltz has close ties to the conservative legal movement.
He clerked for Supreme Court Justice Antonin Scalia in the 1980s and has enjoyed close ties to the conservative legal establishment for decades.
I had never heard of Schiltz before the recent incidents in Minnesota. He has only ever spoken at two FedSoc events, neither of which was on a salient topic. He doesn't even seem to have been active in the Minneapolis FedSoc chapter. I'm sure a group of the establishment crowd can vouch that "he's solid," just like they did with John Roberts. To paraphrase Bubba Gump, conservative is as conservative does. Show me the receipts.
In candor, I meant to write this discussion about Schiltz several months ago when he was being feted by the press. (Whelan and I corresponded at the time about Schiltz.) [Update: I didn't mean to suggest that Whelan supported my conception about Schiltz. To the contrary, he maintained that Schiltz was conservative, as he stated in this tweet.] that I held back because I thought that the judge was thrust into the limelight, and was not doing anything to draw attention to himself. Now, the situation is different. He has sought out publicity and a glowing profile. He is no longer just the recipient of randomly drawn cases. By contrast, Judge Reed O'Connor, who was subject to a hit piece by Schwartz two weeks ago, prudently declined comment. The warm glow of the mainstream media is intoxicating. Judges should just say no.
Third, the district judges worked together and generated templates to rule against the government:
District court judges work alone, but as the number of cases ramped up, the judges recalled seeking one another's counsel, meeting regularly and consulting in running email threads. Eventually, some of their clerks made an informal spreadsheet showing whom to consult on particular legal questions. Some judges built templates of legal orders so they could respond quickly to some of the detention issues that were arising again and again.
I think one of the problems in Minnesota was that judges were issuing orders faster than the lawyers could even comply with them. The use of templates could explain the terminal velocity.
Disability Accommodations "That Fundamentally Change Court Proceedings, Could Alter the Court's Substantive Decisions," …
"or affect any other parties' due process rights ... are not reasonable."
From Judge Samantha D. Elliott (D.N.H.) yesterday in Doe v. Univ. Sys. of N.H.:
Pro se plaintiff John Doe brings suit against the University System of New Hampshire Board of Trustees and several individuals, identified and unidentified, arising out of a "pattern of policy retaliations contrary to contractual obligations" beginning in 2023. The plaintiff alleges few specific facts in what he describes as his "emergency skeleton complaint" that was "executed under acute medical distress to freeze vital deadlines," but he invokes the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. He also asserts that the court has "supplemental jurisdiction over all related state law breach of contract and equitable claims." …
Viewed generously, the plaintiff's motion for a preliminary injunction asks the court to do the following to accommodate certain alleged disabilities: 1) preserve all of his claims for the purposes of the applicable statutes of limitations; 2) waive all deadlines established by the Federal Rules of Civil Procedure and the court's Local Rules; 3) permit the plaintiff to file documents expanding on his claims and seeking additional court intervention (protective orders, comprehensive courtroom and mediation accommodations, the appointment of a special master to oversee discovery, etc.) on a rolling basis; 4) defer issuing summonses to the defendants; and 5) maintain his pleadings under seal.
The court notes at the outset that neither Title II of the Americans with Disabilities Act nor Section 504 of the Rehabilitation Act applies to federal courts. Nonetheless, the court is committed to maintaining access to the court for all litigants and endeavors to grant reasonable requests for accommodations. Any accommodations that fundamentally change court proceedings, could alter the court's substantive decisions, or affect any other parties' due process rights, however, are not reasonable….
Strip Searches Generally Aren't Allowed as Searches Incident to Arrest, Third Circuit Holds,
thus deepening a circuit split. (Note that strip searches are generally allowed when and if the arrestee is placed in the general population of the jail.)
From Third Circuit Judge Stephanos Bibas, joined by Judges Cindy Chung and Thomas Ambro, in yesterday's Beatty v. Gardner:
After arresting a suspect, officers may search his person for weapons or evidence without a warrant or any further justification. But they may go only so far. To search his home, car, or cellphone, they ordinarily need to get a warrant backed by probable cause.
Today, we recognize another such limit on searches incident to arrest: strip searches. Outside of jails or prisons, officers need a search warrant (or exigent circumstances) supported by probable cause to believe that a strip search will reveal weapons, contraband, or evidence under the arrestee's clothes. Thus, the officers here violated the Fourth Amendment by strip-searching an arrestee without a warrant or exigent circumstances. But because that limit was not clearly established at the time, qualified immunity shields them from liability….
Free Speech Unmuted: Spoiler Alert: Can You Get Sued For Revealing A Plot Point?
A deepish dive into how copyright law and the First Amendment interact.
Can revealing a plot twist get you sued? Inspired by the controversy surrounding HBO's Lanterns, Jane and I explore the tension between copyright protection and free speech. From Gerald Ford's memoirs to 2 Live Crew's "Pretty Woman" parody, they examine how courts distinguish protected expression from facts and ideas—and when fair use permits borrowing from someone else's work. Along the way, they consider why describing an ending differs from posting a clip, how leaks of unpublished material complicate the analysis, and when a spoiler might cross the line from bad manners to legal liability.
Also check out our past episodes:
Today in Supreme Court History: September 17, 1787
9/17/1787: The Constitution is signed.
Happy Constitution Day!
Open Thread
What’s on your mind?
Nearly 50% of West Bank Palestinians Says Israel Does Not Have A Right To Exist
What "From The River To The Sea" Actually Means
After the largest massacre of Jews since the Holocaust, thousands of college students marched through the streets chanting, "From the river to the sea, Palestine will be free." Most of them likely had no clue which river and sea were at issue. And they probably also gave zero thought to what it would mean for Palestine to be "free." The college students likely never heard the far more accurate version of the chant in Arabic, which translates to "From the river to the sea, Palestine will be Arab." In short, the only Jewish state in the world would cease to exist, and all Jews would be expelled.
A recent poll relates sentiments among Palestinians towards a Jewish state:
West Bank Palestinians are split on whether Israel has a right to exist, and whether its existence could be brought to an end at some point, according to a survey conducted by Tel Aviv University's Institute for National Security Studies.
The poll finds that 41% of respondents say Israel has a right to exist, compared with 46% who say it does not. In a separate question, 42% say they believe it would be possible to bring about the end of Israel's existence, either in the near or distant future. Conversely, 32% say ending Israel's existence is impossible. . . .
No proposed political framework for resolving the conflict receives majority support. Twenty-seven percent favor a two-state solution; 22% support a single binational state with full equal rights; 26% favor a Palestinian state "from the river to the sea" — encompassing all of what they consider "historic Palestine" — with no permanent Jewish presence; and 17% favor a Palestinian state throughout the entire territory in which Jews would be permitted to live as citizens or residents.
I don't pretend to know how to resolve the situation, but Americans who seek to opine on the subject should at least know how Palestinians would respond if their land was "free."
Use of Flock Cameras Is Not a Fourth Amendment "Search," District Court Rules
The first post-Chatrie ruling on the question.
For reasons explained in my draft article, The Fourth Amendment After Chatrie, there is good reason to believe that the Supreme Court's June ruling in Chatrie v. United States will trigger a rethinking of how the Fourth Amendment applies to automated license plate reader systems such as those provided by Flock Safety. There was an oral argument in the Eleventh Circuit on this question on July 29 that you can listen to here, but there has been no ruling yet on that from the Eleventh Circuit. Last week, however, the United States District Court for the Central District of California became the first court I'm aware of to weigh in on whether the use of Flock cameras is a Fourth Amendment search after Chatrie.
The new ruling, United States v. Riley, concludes that use of Flock cameras was not a search. In the case, police investigating two kidnappings queried the Flock cameras of two California cities, obtaining four photographs each of the whereabouts of the defendant's car. According to the court, this was not enough of a privacy invasion to constitute a Fourth Amendment search:
The ALPR database searches used during the Culver City and Carson investigations are thus clearly distinguishable from and less extensive than the "near perfect surveillance" achievable through the historical CSLI at issue in Carpenter and the Google Location History data at issue in Chatrie. The ALPR data in this case could not create "an all-encompassing record" of Defendant's whereabouts. Carpenter, 585 U.S. at 311. And although some of Defendant's path in the Dodge Charge and Chevrolet Malibu may be inferred, there is no indication in the record that law enforcement could recreate the complete paths that Defendant traveled in those cars, even in combination with information from other sources, such that officers could create a "detailed log of [Defendant's] movements" from the data at issue here. Id. at 312. Nor did this surveillance provide the "intimate window" into Defendant's personal life that concerned the Supreme Court in Carpenter. Id. at 311. That is to say, the ALPR data did not reveal defendants "familial, political, professional, religious, and sexual associations." Id. Furthermore, the record does not show that the ALPR data here allows police to "reconstruct 'retrospective[ly],' and with no real effort, [Defendant's] comings and goings in any area. Chatrie, 146 S. Ct. at 2208 (alteration in original) (quoting Carpenter, 585 U.S. at 312).
For these reasons, the record here does not reveal a privacy threat analogous to the issues addressed in Carpenter and Chatrie. And it does not present "dragnet type law enforcement practices" constituting a Fourth Amendment search. United States v. Knotts, 460 U.S. 276, 284 (1983).
This is just a trial court decision, of course, and I assume it will be appealed to the court of appeals. Other courts are considering the same question, and we don't know how they will rule. But given the public interest in the issue, I thought I would flag the new opinion. As always, stay tuned.
Montreal Economic Institute Webinar on Legal Challenges to the Trump Tariffs Against Canadian Goods
I will be one of the speakers.
On Wednesday, September 23, from 12 to 1:30 PM, eastern time, the Montreal Economic Institute will be hosting an online webinar on legal challenges to the Trump tariffs against Canada, entitled "Trump Tariffs: How the American Court System Can Help Restore Free Trade in North America." I will be one of the speakers, along with Marc Wheat (general counsel of Advancing American Freedom), and Andrew Hale (economic and trade policy expert at AAF).
Additional information and free registration are available here.
We will, I expect, cover various illegal imposed tariffs against Canada, including the Section 301 tariffs (which I wrote about here), and the Section 338 tariffs (see here and here). I will also discuss how best to avoid such harmful and tariff actions in the future.
Defamation via Songs and AI-Generated Video? U Tenn Coach's Claim Can Go Forward
"[D]efendant purportedly posted more than 20 videos ... attacking plaintiff's character with 'blatantly false allegations of wrongdoing' and 'highly offensive and demeaning fake [AI] videos.'"
An excerpt from Judge Thomas Varlan's long opinion today in Ross v. Lambert (E.D. Tenn.):
Plaintiff alleges that he is an accomplished track and field athlete who has held numerous collegiate coaching positions over the past ten years, including Head Coach and Director of Track and Field at the University of Tennessee ("UT") beginning in 2022…. [I]n May 2023, plaintiff advised defendant [an employee of the program] that he was being terminated from his position at UT. Plaintiff claims that he gave defendant the option to voluntarily resign in lieu of being fired for cause, which defendant accepted.
Defendant subsequently filed an EEOC complaint against plaintiff and UT, plaintiff asserts, but this case was closed without a finding of probable cause against either plaintiff or UT. Then, on or about May 30, 2024, defendant sent a demand letter to UT's Office of General Counsel, threatening to sue UT and plaintiff for "wrongful termination and discrimination" if he did not receive a $150,000 payment from UT.
Plaintiff alleges that, within the demand letter, defendant made a series of "patently false and inflammatory allegations" against plaintiff, which included statements claiming that plaintiff and plaintiff's son were involved in "doping." Defendant also warned in his demand letter that he would go to the media if UT did not settle. In response, UT rejected defendant's demand, citing to his "baseless" and "highly offensive" attack on plaintiff's reputation, and advised defendant that it was unwilling to engage further with defendant on the matter.
