The Volokh Conspiracy

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

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AI in Court

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

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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."

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Evidence

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

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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.

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Free Speech

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

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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….

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Free Speech

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

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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.

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Guns

Justice Department Opines That Federal Law Allows Carrying Guns in Post Offices for Self-Defense

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A short excerpt from the long Justice Department Office of Legal Counsel Aug. 12 memo to the Attorney General:

You have asked whether 18 U.S.C. § 930(a) … is best read to impose criminal penalties on an otherwise law-abiding individual who carries weapons into a post office for the purpose of self-defense. We would have significant constitutional concerns if Congress had created such a blanket ban on the lawful carrying of constitutionally protected arms into a building frequented by the public since the Founding. But we ultimately need not reach that issue here, as Congress has exempted the "lawful carrying" of firearms or other dangerous weapons "incident to hunting or other lawful purposes." Because carrying arms for self-defense when entering a building held open to the public is a paradigmatic "lawful purpose[]," that exception permits the lawful carrying of constitutionally protected firearms in post office….

[S]ection 930(d)(3) provides that section 930(a)'s bar against carrying firearms and dangerous weaponry does not apply to "the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes." 18 U.S.C. § 930(d)(3). To fall within this exception with respect to firearms, an individual must satisfy two criteria: (1) the carrying of their firearm must be "lawful"; and (2) the carrying must be "incident to" a "lawful purpose[]," such as "hunting."

The first requirement is relatively straightforward. It excludes, for example, a person who is not legally allowed to carry a gun anywhere…. Under federal law, this exemption would not cover, for example, a person who has been convicted of a felony or a misdemeanor crime of domestic violence, a person who has been committed to a mental institution, or a person who is in the United States illegally. It may also exclude an individual who is forbidden from carrying a firearm in the relevant state because he is not licensed—so long as the licensing regime itself is not constitutionally infirm…

The second requirement is less clear but is best read to cover an individual entering a post office that is open to the public while lawfully carrying a firearm for self-defense. "Incident," used as an adjective, means "occurring or likely to occur esp[ecially] as a minor consequence or accompaniment." In the legal context, "incident" means "depends upon, appertains to, or follows another."

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New in SCOTUSBlog: The justices should regularly sit on the lower courts

The chief justice should ask each circuit justice to preside over one en banc oral argument of his or her circuit.

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My latest installment in SCOTUSBlog calls for the return of circuit riding, with a twist:

Each term the circuit justices would be drawn at random to sit on the lower courts. The justices can pull a number out of a hat. No longer would the same justice preside over the same circuit year-after-year. Let the justices and the lower courts mix and mingle, to get the greatest flavor of how the judicial system works nationwide. Indeed, justices should rotate among the circuits every year to see the widest range of courts, across the fruited plain, with flyover country in the middle.

A more important part of this proposal is that the chief justice will ask each circuit justice to preside over one en banc oral argument of his or her circuit. These sessions could be timed when the justices do not have oral argument at the Supreme Court to minimize possible disruptions.

I also propose that the Justices should keep their home chambers outside of the swamp, and only commute when the Court is in session:

It would be quite feasible for a justice to commute to the Supreme Court for the session days. Indeed, Justice John Paul Stevens spent two weeks of each month from November through April in his Florida home. For all other times, the justice could work in a local chamber at a federal courthouse. Federal law requires circuit judges to reside in the circuit they are assigned to, but there is no similar statute requiring Supreme Court justices to live in Washington, D.C. I think Congress would gladly pay for some travel costs for the justices to spend less time in the capital.

I don't even think a justice would need to purchase an expensive home in Washington, D.C. A justice could also follow the lead of many members of Congress, and use their chambers as sleeping quarters. If it is good enough for Article I, it should be good enough for Article III. (Indeed, on the Marshall court, all of the justices would stay at the same boarding house.)

I'll add that their law clerks should join the justices on the road. There is value in keeping the law clerk's feet planted on the ground. Working in a marble palace can distort any sense of reality. Perhaps law clerks could spend part of the year in the home chambers and part of the year at the Supreme Court. Or some law clerks could spend all of their time in either location. Or perhaps a justice could go to D.C. without any law clerks. In any event, it would serve the justices well to get out of D.C. and see how justice is dispensed across the nation.

If we take the Justices and clerks away from Mount Olympus, they will spend less time with their heads in the cloud.

New in Civitas Outlook: "SCOTUS's Immigration Rulings Chastise Trump on Morality"

"Mullin v. Doe should have been resolved on legal grounds without the need to virtue signal about immigration."

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At the end of the term, there were so many blockbusters that two significant immigration decisions largely flew under the radar. Justice Alito wrote the majority opinions in Mullin v. Doe and Mullin v. Al Otro Lado. While I think both cases got the law right, I was troubled by some of the rhetoric that Alito used in Doe. My new essay in Civitas Outlook is titled, "SCOTUS's Immigration Rulings Chastise Trump on Morality."

Here is the introduction:

Last term, the Supreme Court ruled that the judiciary could not review the Secretary of Homeland Security's "determination" to suspend Temporary Protected Status (TPS) for Haitian and Syrian aliens. Mullin v. Doe was split by a right-left 6-3 vote. I think the majority had the better reading of the statute and the Constitution. Yet the Court didn't limit itself to the legal issues presented. Rather, Justice Alito's majority opinion regrettably chastised President Trump's rhetoric and his administration's immigration policies. Indeed, Justice Alito expressed something like remorse for ruling against the immigrants, perhaps in response to the dissent's fear-mongering claims. The Court reached the right result but was wrong to moralize to the President about how to conduct foreign affairs. This straightforward case should have been resolved on legal grounds without the need to virtue signal about immigration.

Ultimately, Justice Thomas was willing to say what the others were not:

Ultimately, something about the majority opinion in Mullin v. Doe is unsatisfying. The Court finds that the administration's decision to terminate TPS status was not subject to judicial review, and that Trump's comments about Haitians eating pets were not "overtly racial." I think the better approach can be found in Justice Thomas's solo concurrence. He observed that if "equal protection principles applied to immigration decisions, much of even our current immigration law would conflict with this Court's modern equal protection doctrine." Why? Because "our immigration laws have distinguished among aliens based on their national origin from the beginning." The government has long favored immigrants from some nations over others, without transgressing the Constitution. This policy should be constitutional.

The Court would have been much better off letting the federal government set its foreign policy with regard to immigration and not moralizing about how Americans—the President in particular—should view migrants. This decision, compounded with the birthright citizenship ruling, reflects a gap between the judiciary and the pressing issue of immigration that continues to divide the country. Hope springs eternal that the Supreme Court can correct course for next term.

To echo Senator Cruz's new book, Justice Thomas is always willing to go further. And as Judge Ho explains in a book review in National Review, going further invariably means standing alone, especially when Thomas takes the unpopular position.

Guns

Should Deadly Self-Defense Be Tortious if Need for It Could Have Been Avoided "by Relinquishing the Exercise of [a] Right"?

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The Restatements are influential works by the American Law Institute—an organization of lawyers, judges, and academics—that aimed to provide a guide for future lawyers and judges (usually by summarizing the existing law, but sometimes by going beyond existing law). Many courts have indeed adopted the Restatement formulations in various areas.

Back in 1934, the first Restatement of Torts, set forth a limitation on the common-law privilege of self-defense against battery and similar lawsuits (emphasis added):

The intentional infliction upon another of bodily harm by a means which is intended or likely to cause death or serious bodily harm is not privileged [as self-defense], if the actor reasonably believes that he can with complete safety avoid the necessity of so defending himself

(a) by retreating, if attacked in any place other than his dwelling place, or

(b) by relinquishing the exercise of any right or privilege other than his privilege to exclude intruders from his dwelling place or to prevent himself from being dispossessed thereof or to effect a lawful arrest.

The 1965 Restatement (Second) of Torts continued this. But I'm pleased to say that, while the 2026 Restatement (Third) of Torts: Intentional Torts to Persons § 24 preserves a "duty to retreat" (which does fit with quite a few precedents), it rejects any "duty to relinquish":

Comment i. No duty to relinquish other rights

Restatement Second of Torts § 65(3)(b) broadly stated that an actor lost the right to use deadly force in self-defense, not only when the actor could safely retreat, but also when the actor could safely avoid the need to use deadly force by "relinquishing the exercise of any right or privilege other than his privilege to prevent intrusions upon or dispossession of his dwelling place or to effect a lawful arrest." However, research has disclosed no cases that apply that "any right or privilege" provision, and the provision is unduly broad. Accordingly, this Restatement no longer includes the provision….

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How Long Did Justice Jackson's "Kafkaesque Nightmare" Dissent Hold Up Trump v. California?

In a future writing, I propose a mechanism whereby six Justices can force the release of any pending case.

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On July 27, 2026, the Solicitor General submitted an emergency application in Trump v. California. This case concerns proposed regulations for mail-in ballots. The government filed its reply brief on August 12. After a flurry of litigation in the lower court, and new action by the government, the Supreme Court finally decided the case on August 24. This emergency case took nearly a month.

The majority opinion, at a brisk ten pages, finds the District Court lacked jurisdiction because the case was not yet ripe. Moreover, any alleged injuries were speculative under Clapper. The per curiam opinion reads a lot of Justice Kavanaugh's voice. I do like the word "concretize." Justice Kavanuagh has taken the lead in writing some of the Court's more significant jurisdictional cases. One would think that a former federal courts professor in the majority would get these cases, but apparently not.

Justice Sotomayor's pithy dissent covers all the bases in only four pages.

Then there is Justice Jackson. She wrote a solo twenty-page dissent that discusses the merits of the case, even though the majority only addressed the jurisdictional issues. She also warns that the Court's precedents are creating a "Kafkaesque nightmare." The only nightmare here is the fact that the Court let KBJ take nearly a month from the date of the application to write this dissent.

It seems that all of the Justices were ready to go shortly after the briefing concluded. But Jackson dragged out the process so long that the posture in the lower court changed. Some critics have faulted the Court for not addressing the recent developments. But how could they? Any change by the majority might trigger another two week delay from Justice Jackson.

Justice Jackson has proven that she sees no need for urgency when the Trump Administration submits an emergency application, especially when the case comes from the First Circuit. She slow-walked the petition in Libby v. Fectau. My nickname, the Laborious KBJ, still fits.

I will give you a preview of a future installment from my SCOTUSBlog series on Court Reform. I call it the "Release-6."

For any matter, six Justices can force the release of an opinion immediately. This rule would apply on both the merits and emergency dockets. The majority opinion could be published right away, with a notation that a dissent is forthcoming. A super-majority of the Court can bring a pending matter to an immediate conclusion. If a Justice wishes, he or she can publish the dissent at a later date, but the business of the Court will move forward.

There are some emergency matters where an immediate resolution is essential for the government or the private parties. It may also not be viable to keep an administrative stay in effect for an extended period of time. With the Release-6, six members of the Court can issue their judgment, and the dissent can come later, or not at all.

Trump v. California was a prime case. There were six clear votes to grant a stay, and a single dissenter held the matter up for weeks. Release-6. The Supreme Court forced out a ruling in A.A.R.P. v. Trump before Justices Alito and Thomas could write their dissent. Cooper v. Aaron was decided before Justice Frankfurter could finish his concurrence. In an emergency case, the Court can act before the separate writings are ready. Justice Jackson should receive the same treatment.

AI in Court

AI Hallucinations in State Farm Insurance Outside Lawyers' Filings

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From L.A. Times (Rebecca Ellis) Wednesday:

As part of an insurance dispute over a fire-damaged Carson home, attorneys for State Farm cited several cases in court filings this month that they later acknowledged don't exist….

"State Farm expects its external counsel to conform to the highest level of ethical standards and professionalism, including in their use of AI and confirming the accuracy of all legal filings," [State Farm spokesman Tom Hartmann] said.

From the State Farm lawyer's declaration, in Meni-Siliga v. A's Contractor, Inc. (Cal. Super. Ct. L.A. County):

I submit this declaration to, first and foremost, express my deepest apologies and regret to the Court, Ms. Siliga and her attorneys. I also submit this declaration to outline the steps our office has taken to determine the scope of these issues within State Farm's Motions in Limine or other filings. As set forth below, I have reviewed all of State Farm's Motions in Limine and supporting reply briefs, State Farm's Oppositions to Plaintiff's Motions in Limine, and, as a precaution, all pleadings in connection with State Farm's Motion for Summary Judgment/Adjudication and Plaintiff's Motion for Reconsideration. Based on that review, I can represent that there are no AI hallucinations within any of State Farm's Oppositions, Replies or the MSJ documents.

At the close of the most recent Final Status Conference on Friday, August 7, 2026, counsel for Plaintiff – Eric M. Khodadian, Esq. with Cummins & White LLP and Michael Shaolian, Esq. with The Shaolian Law Firm P.C. – informed the Court that they had discovered several citations in State Farm's motion in limine filings that were "fabricated" and possibly "hallucinations." This was the first time I became aware of the issue with prior filings, particularly as it relates to State Farm's first five motions in limine which our office filed and served on March 31, 2026. The issues had not been raised with us prior to or after the first two [Final Status Conferences] or before the end of the August 7th hearing….

Because of the seriousness of the allegations and the importance to [my colleague and State Farm's lead counsel], myself, our firm and State Farm of ensuring the integrity of any of our filings submitted to the Court in this matter and others, I began an investigation of the matter immediately upon my return from the August 7, 2026, Final Status Conference. With sincerest regret, I unfortunately discovered that Mr. Khodadian and Mr. Shaolian were correct, and that there were seven (7) case citations across State Farm's eight (8) motions in limine that simply did not exist. These include the following citations [details omitted -EV]….

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AI in Court

"Signs of AI Authorship in Federal Appellate Opinions"

"Dozens of published circuit opinions show signs of AI writing. If courts are using AI, that's promising—and worth getting right."

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I'm delighted to pass along this extremely interesting piece, from Josh Morrow, a partner at Lehotsky Cohn LLP:

I was intrigued to see what struck me as indicia of AI writing in a recent, published opinion from an Article III appellate court. So I took the opinion to Pangram, an AI-detection tool. Pangram's results backed my intuition, identifying multiple passages, some stretching for pages, as AI-generated.

Then I ran the full set of this year's published opinions from the regional courts of appeals through Pangram—about 2,250 opinions in all. Dozens show signs of AI writing.

No, I'm not going to name the judges who wrote or joined the opinions. Used well, AI can sharpen both thinking and prose, and I am heartened that some courts appear to be using it. For now, I just want to survey my findings, explain what they mean, and offer a few thoughts about how courts can make the most of AI without ceding human judgment.

Background

AI writing can leave "tells," but the full set resists reduction to a checklist. Sometimes you just get the feeling a passage is AI. That feeling struck recently as I was reading an opinion from one of the regional courts of appeals. (Like the other opinions I discuss, this one has no connection to my practice.)

I uploaded the opinion to Pangram, which is a cutting-edge AI-detection tool trained to distinguish human writing from AI. There is a lingering perception that AI writing is invulnerable to detection. Earlier tools touting this ability were faltering and gave that view some basis. But no more. Some AI developers are working toward offering their own proprietary detectors. Meanwhile, third-party detectors have improved considerably. Pangram, for example, claims a "false positive" rate "of just 0.0041%, or roughly one false positive for every 24,000 documents." My experience is in accord.

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Politics

Jacob Mchangama on Frederick Douglass's Views on Free Speech During the Civil War

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An extremely interesting post (Mchangama, as many of you know, is a historian of free speech, among other things):

[I]t's not surprising that a man in Douglass' position would appeal to free speech given the draconian censorship of abolitionist ideas in the South, the hostile mobs he often had to confront and more generally his membership of an unpopular minority that suffered pervasive stigma and discrimination. In such a vulnerable situation it's not hard to see how the right of free speech can be invoked as a shield against majoritarian intolerance and a precondition for speaking truth to power.

But as everyone who cares deeply about free speech knows all too well, the real test for free speech defenders is not whether you advocate free speech for yourself and the ideas you want to advance. The real test is whether you also defend the rights of those you most vehemently disagree with and are willing to take a stand for the right to express deeply unpopular ideas no matter how massive and vocal the public backlash.

A great topic to test Douglass' free speech philosophy and consistency is wartime restrictions. National security is and remains one of the essential drivers of censorship. As witnessed by World War I and the subsequent First Red Scare, such wartime restrictions can often extend beyond and outlive any genuine and pressing requirements, and end up targeting dissent and opposition alleged to threaten national unity.

Douglass lived through the American Civil War; a war fundamentally fought over the very question of slavery, which also animated Douglass' personal struggle. He therefore had a deeply personal stake in the outcome of the war and in supporting one side against the other, both when they faced off on the battlefield and when they clashed in the public square. So what does the record say? …

Religion and the Law

Would Muslim Prayer Room at Public High School Violate Establishment Clause?

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Yes, Judge John Milton Younge (E.D. Pa.) suggested Friday in Hiester v. School District of Philadelphia:

The crux of Plaintiffs' allegations is that the School District and its officials established a Muslim Prayer Room at one of its high schools, the Academy at Palumbo …. Plaintiffs claim that the room was restricted to Muslim students, and that they were unfairly disciplined by the Defendants for entering the Prayer Room because they are not Muslim….

The Supreme Court requires that the Establishment Clause be interpreted by "reference to historical practices and understandings." To prevail on an Establishment Clause claim, a plaintiff must show that the challenged government action "resemble[s] a traditional hallmark of religious establishment." The Third Circuit has identified six of these hallmarks:

"First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function."

To prevail on their Establishment Clause claim, Plaintiffs only need to show that SDP's Prayer/Quiet Room policy "resembles one" of these hallmarks.

Student Plaintiffs plausibly allege that Defendants … suspended them for entering the Muslim Prayer Room as non-Muslims. They also plausibly allege that they were suspended to pacify Palumbo students' outrage, thereby reinforcing the student body's perception that the Prayer Room was available to Muslim students only. In this respect, the defendants' actions resemble the fourth hallmark of religious establishment: "the government restrict[ing] political participation by dissenters."

The Plaintiffs also plausibly allege that Defendants … used public resources to create the Prayer Room and prevent non-Muslim students from accessing it. The room was on the grounds of a publicly funded school and was used during school hours. In this respect, Defendants' actions resemble the fifth hallmark of religious establishment: "the government provid[ing] financial support for the established church, often in a way that prefer[s] the established denomination over other churches."

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Free Speech

Renaming Streets "Cesar Chavez Boulevard" Didn't Violate First Amendment

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From 1 Community Compact v. City of Fresno, decided Friday by California Court of Appeal Justice Jennifer Detjen, joined by Justice Donald Franson:

Emphasizing the "profound impact" of Mexican-American labor leader and civil rights activist Cesar Chavez "on the people of Fresno" and concluding the renaming of a downtown thoroughfare in his honor would "provide a source of pride and community recognition," the Fresno City Council … adopted Resolution No. 2023-056, which facilitated the renaming of the "East Kings Canyon Road, East Ventura Avenue, and West California Avenue alignment" (collectively, the Alignment) to Cesar Chavez Boulevard.

Plaintiffs objected to the renaming and then sued, among other things arguing thus:

The operative complaint alleges the following. The Alignment is composed of three streets "decidedly historical to [City]'s rich history." East Ventura Avenue, which was named in 1873, "has always been the heart of [City's] Armenian Community" and "was known as Armenian Town." West California Avenue, which was named in 1881, is "the heart" of City's African-American community. East Kings Canyon Road, which "is over 70 years old," "has always been known to residents and tourists alike as the gateway to the Sierras and Kings Canyon National Park."

Cesar Chavez, who was "not a Fresno native and never lived in Fresno," "has never been integral to nor associated with any of these [three] historical streets." He was also a "divisive" and "objectionable political figure" who "alienated many farmers, packing houses and grocery stores and retaliated against those who did not join his union."

Plaintiff "is an unincorporated grass roots association with [more than 1,000] members who live, own, or operate a business on the historic … streets of [East] Kings Canyon Rd., [East] Ventura Ave., or [West] California Ave., and/or who reside or have businesses in the immediate vicinity of said streets." Plaintiff's members viewed the renaming of the Alignment as City's attempt to "erase or rewrite" "their personal or business history"; lamented "the enormous costs to each business or property owner, operator, tenant, and residents when the street name is changed"; and stressed only they were required to bear the "cultural and financial burden and impact in renaming [the Alignment]" and "propagate, echo, and spread … City's message [about Cesar Chavez]."

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More

Recent Volokh Posts

1

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

2

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

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

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

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Justice Department Opines That Federal Law Allows Carrying Guns in Post Offices for Self-Defense

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New in SCOTUSBlog: The justices should regularly sit on the lower courts

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New in Civitas Outlook: "SCOTUS's Immigration Rulings Chastise Trump on Morality"

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Should Deadly Self-Defense Be Tortious if Need for It Could Have Been Avoided "by Relinquishing the Exercise of [a] Right"?

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Today in Supreme Court History: August 25, 1998

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Open Thread

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