The Volokh Conspiracy

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

I find the term "judicial activism" to largely be meaningless. There is often no discernible line between "making law" and "applying the law." But I do think judges engage in judicial activism when they shed their robes on take on the role of advocates. It certainly happens that judges will give guidance or hints to advocates, especially pro se litigants, to help move cases along. But there is no reason for judges to raise issues that are not presented by the parties. The "party presentation" principle ensures that judges do not transgress this line.

Yet, judges seem to forget their role. The Fourth Circuit, in particular, has been summarily reversed twice in one term for violating the party presentation principle. In November, the Supreme Court SumRev'd the Fourth Circuit in Clark v. Sweeney You might think the judges in Richmond would take a hint, but no such luck. Yesterday, the Supreme Court summarily reversed the en banc Fourth Circuit in Margolin v. National Association of Immigration Judges. I wrote about this case back in December.

The Court explained that the party presentation principle prevents judges from becoming inquisitors:

Federal courts adhere to the principle of party presentation. See Clark v. Sweeney, 607 U. S. 7, 9–10 (2025) (per curiam). That principle—the "rule that points not argued will not be considered"—distinguishes our adversarial system of justice from an inquisitorial one. United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). Because courts are "essentially passive instruments of government," we rely on the parties to "frame the issues for decision" and decide "only the questions presented." United States v. Sineneng-Smith, 590 U. S. 371, 375–376 (2020) (internal quotation marks omitted).

The Court explained that it had to reverse the Fourth Circuit on this principle only a few months ago:

We recently reversed the Fourth Circuit for violating this party-presentation principle.

What happened here? The Fourth Circuit remanded the case on an issue that none of the parties had presented:

The Fourth Circuit violated the party-presentation principle when it decided "a case different from the one [respondent] advanced." 160 F. 4th, at 118 (Quattlebaum, J., dissenting from denial of rehearing en banc). As respondent conceded below, our precedent establishes that Congress, through the CSRA, intended to channel covered claims to the MSPB. ECF Doc. 72, pp. 8–9; ECF Doc. 11–1, p. 18. The parties thus confined their arguments to the narrow question whether respondent's claims were, in fact, covered. Unsatisfied with rejecting respondent's arguments on that question, however, the Fourth Circuit sua sponte addressed a much broader one and remanded for further proceedings on that question. The court transformed respondent's argument that the CSRA did not channel its claims into one that the CSRA might not—in light of current conditions—channel any claims. And the court did so without giving either side a chance to address its theory.See Clark, 607 U. S., at 9. That "'drasti[c]'" departure from the principle of party presentation "'constitute[d] an abuse of discretion.'" Id., at 10 (quoting Sineneng-Smith, 590 U. S., at 375).

The Court concluded:

The Court of Appeals lost sight of those principles here.

Why did the Fourth Circuit lose sight? Justice Thomas explains why in his concurrence, joined by Justice Barrett.

Nevertheless, the Fourth Circuit strained to avoid dismissal of the case based on its belief that new political considerations changed the governing law. The court explained that it would not allow its "black robes to insulate[it] from taking notice of items in the public record." Id., at 313. Specifically, the Fourth Circuit worried that because "the President removed the Special Counsel" and "two members of the MSPB," there were now "serious questions as to whether the CSRA's adjudicatory scheme continues to function as intended." Id., at 305. Congress designed theCSRA to rely on MSPB independence, the Fourth Circuit claimed, so now that "the Government has questioned the constitutionality of the removal protections enshrined in the CSRA," it was no longer clear that the statutory scheme was functioning as Congress intended. Id., at 308. If it were not, the court reasoned, Congress might not have intended for such claims to be channeled to the MSPB any longer.

Lower court judges consistently take judicial notice of what President Trump does, and uses those actions to change the meaning of the law. As Judge Wynn said in the travel ban case nearly a decade ago, "Do we just ignore reality and look at the legality?" Justice Thomas shoots down this amateur political analysis:

The Fourth Circuit's analysis bears little resemblance tolegal interpretation. Neither the President's view that he can remove federal executive officials, see Myers v. United States, 272 U. S. 52 (1926), nor his having done so, change the meaning of the statute or the binding nature of this Court's interpretation of it. "Conditions may have changed, but the statute has not." United States ex rel. Marcus v. Hess, 317 U. S. 537, 547 (1943). Courts may not "rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that" the President or courts may conclude that its removal restrictions were "beyond its authority." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 76 (1996). Statutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress's purposes. See U. S. Const., Art. I, §§1, 7. As Judge Quattlebaum wrote in dissent, the Fourth Circuit's decision below "undermines important principles of our system of justice," including that law remains law despite the "political controversies of the day." National Assn. of Immigration Judges v. Owen, 160 F. 4th 100, 118 (2025) (en banc).

Justice Barrett rarely joins these sorts of separate writings. She must have been especially troubled by what the en banc Fourth Circuit did here—with good reason.

The Fourth Circuit has a tradition, in which the judges come off the bench after arguments and shake hands with counsel. This tradition should not blur the distinction between those at the bar and those on the bench.

As I noted in a separate post, the legal advocacy group Neutral Principles engaged Erik Jaffe and me to draft an amicus brief for them in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, which the Court will hear this Fall. You can read the PDF, but here is the Foreign Commerce Clause analysis (the First Amendment analysis is excerpted here):

Besides the serious First Amendment concerns favoring a broad preemption ruling that would avoid such constitutional problems, the state-law suits in this case and others around the country seek to regulate national and international commerce in violation of the Commerce Clause and related structural constraints on extraterritorial regulation.

Boulder attempts to penalize multinational companies not merely for the local and immediate consequences of any local operations, but for the multi-causal long-term consequences of their sales and speech around the country and around the globe. And it is seeking to impose liability on Suncor for the joint consequences of millions of decisions by actors beyond its borders, operating in interstate and international trade. Whatever reticence this Court might have in preempting largely ordinary State regulation that incidentally affects interstate commerce, that reticence would be misplaced when it comes to such a major encroachment on international commerce and an attempt to impose Boulder's views of nuisance and appropriate speech on actors not just in other States but also in foreign countries.

For good reasons, this Court has understood Congress's delegated power over foreign commerce as exclusive of State powers. That understanding is consistent with the original public meaning of both the delegation of power to Congress in Article I, and the catch-all reservation of powers to the states and the people in the Tenth Amendment.

Regardless whether the Constitution supports the somewhat variable dormant interstate Commerce Clause as it had evolved over the years, a more textually grounded reading of the clause supports exclusive federal authority here. Boulder's attempt to impose Colorado law on interstate and foreign commerce conflicts with the Commerce Clause, Article I's delegation of powers, and the Tenth Amendment. And it more broadly conflicts with the Constitution's structure, which organizes horizontal relations among States on principles of (partial) state autonomy, equality, territoriality, non-aggression, and mutual recognition.

Politics

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The legal advocacy group Neutral Principles engaged Erik Jaffe and me to draft an amicus brief for them in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, which will be heard by the Supreme Court in the Fall; I much enjoyed working on it with Erik, and thought I'd pass it along. You can read the PDF, but here are some excerpts from the First Amendment analysis; I've blogged separately about the Foreign Commerce Clause analysis.

SUMMARY OF ARGUMENT

Trying to avoid federal preemption, plaintiffs in this and other climate-change cases have shifted from claims targeting emissions to claims alleging supposed "deception." These "deception"-based claims are still preempted, because they still target emissions by seeking relief for injuries allegedly caused by emissions. But that shift also threatens numerous First Amendment violations and the possibility of conflicting regulations of national speech, association, and petitioning that further support preemption of such local efforts. Climate-change plaintiffs seek to punish energy companies not just for the asserted consequences of emissions, which result from the decisions and actions of millions of other actors and governments, but for the companies' speech about climate change that plaintiffs claim led to such emissions.

This case is an example of this pattern, but it is not an outlier: There are many like it across the country. And there likely will be many more in the field of climate change, with some potentially taking diametrically opposed views of what scientific speech is true or false. This Court should keep the serious First Amendment issues underlying this litigation campaign in mind in deciding this case. The danger to First Amendment rights is another reason favoring uniform national regulation of these issues as opposed to opportunistic state and local overreach that seeks to punish and suppress speech and debate on this controversial topic.

ARGUMENT

[I.] The First Amendment Protects Advocacy, Petitioning, and Expressive Association Related to Debates About Climate Change.

The speech that forms the basis for alleged liability in this case is core advocacy, petitioning, and expressive association that is protected by the First Amendment. Merely characterizing it as "marketing" does nothing to change its essential nature and its constitutional protection….

[A.] Climate-Change Lawsuit Claims Rest in Part on Defendants' Constitutionally Protected Speech, Petitioning, and Association.

There is no genuine doubt that the recent climate-change lawsuits brought by governments turn on defendants' political advocacy. Notwithstanding the assertion by plaintiffs that they "do not seek to impose liability" based on defendants' "speech," "participat[ion] in public debates," or "lobbying or petitioning." J.A.139, ¶¶ 541-542, that is precisely what they are doing. Plaintiffs expressly "seek to impose liability on Defendants in connection with misrepresentations about the known dangers of their products, in connection with their marketing of those products and in connection with the sale of those products," J.A.139, ¶ 541. But they include all public speech directly or indirectly related to their products and climate change under the rubric of "marketing" and have a boundless conception of what speech is "in connection" with marketing and sales, making their disclaimer meaningless. Other parts of the Amended Complaint show that these supposed misrepresentations do indeed include "participat[ion] in public debates" about climate change….

[B.] The First Amendment Protects Speech on Scientific Questions.

The speech over which climate change plaintiffs routinely sue is fully protected by the First Amendment, because it is advocacy on matters of core public concern and public policy.

In United States v. Alvarez, five members of this Court expressly recognized that the government cannot try to "penalize purportedly false speech" on such matters. 567 U.S. 709, 731 (2012) (Breyer, J., concurring in judgment). Justice Alito, joined by Justices Scalia and Thomas, reasoned:

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

Free Speech

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5/28/1906: Justice Henry Billings Brown retired.

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A high-ranking government official has sexual relations in the workplace on multiple occasions. An article of fabric is stained. The official is asked about what happened and lies during an official investigation. But thanks to a whistleblower, the truth comes out. The official, caught in flagrante delicto, apologizes and insists it will never happen again. Sound familiar?

The saga of President Bill Clinton and Monica Lewinsky is well known to everyone over the age of 35. (I remember downloading the Starr Report over my 56k modem when I was 14 years old.) Lewinsky, an intern, had ten sexual encounters with Clinton in the White House. Most of the meetings occurred in the Oval Office, though some occurred in the room President Trump currently uses to display MAGA swag. Lewinsky never had sexual intercourse with Clinton, but they did have oral sex. Clinton touched Lewinsky's genitals and used a cigar in an inappropriate fashion. Betty Currie, the secretary who sat outside the Oval Office, maintained her plausible deniability, and would leave the area when Lewinsky was in there. Clinton infamously stained Lewinsky's blue dress from the GAP with his fluids.

Soon, the allegations leaked out. Initially, Bill Clinton lied. In an infamous January 1998 press conference, he said "I did not have sexual relations with that woman, Ms. Lewinsky." But Linda Tripp had secretly recorded conversations with Lewinsky, and provided them to Independent Counsel Ken Starr. Only after the truth came out did Clinton change his tune. He insisted, "It depends on what the meaning of the word 'is' is." President Clinton was impeached for obstruction of justice and perjury for giving false testimony in the Lewinsky investigation. Ultimately, Clinton was acquitted. After his acquittal, he was held in civil contempt by Judge Susan Webber Wright for misleading testimony before the grand jury. Clinton surrendered his Arkansas law license for five years.

Now lets turn to the "subject judge" in the Eleventh Circuit. For present purposes, I will pretend that we don't all know the judge's identity. I've spoken to several journalists and investigators today. They all concur with my analysis. The name will come out soon enough. For now, I'll just refer to this disgraced jurist as Judge Betsy.

Judge Betsy had sexual relations with a law enforcement officer in her chambers many times over the course of a year. This officer's department routinely litigated in front of the judge. This seems like a far greater risk conflict than sex with an intern. Unlike Betty Currie, who could walk away when her boss was engaging in sexual relations, Judge Betsy's poor law clerk was forced to hear "kissing sounds" and "sounds of moaning." And, much like Monica's blue dress, the clerk reported that "one of the cushions on a sofa in the Subject Judge's chambers was stained in a manner that was consistent with being caused by semen."

When the investigation began, Judge Betsy lied. She said the allegations were "outrageous" and "baseless" and denied them. She then attacked her law clerk, the whistle blower, for being late, using her phone in court, and dressing "too casual." Some chutzpah for Judge Betsy to shame her clerk's attire considering she disrobed to have sex in her chambers. This charge gives new meaning to David Lat's old blog, "underneath their robes." Remarkably, Judge Betsy blamed her law clerk for retaliating against a life-tenured federal judge. The power dynamics are completely backwards.

Judge Betsy sent two follow-up emails to the Chief District Judge. She lied: "I am astounded and confused, and have no idea what this clerk is referring to or why [the clerk] has made such allegations." Twenty minutes later, she told another lie: "I don't even know which law enforcement officer [the clerk] is referring to." Judge Betsy lied to Chief Judge Pryor: "I have never engaged in sexual intercourse in my office, nor anywhere else in the Courthouse." Judge Betsy could have taken those words right out of Bill Clinton's mouth. Much like Clinton, Judge Betsy got caught due to a whistleblower. The clerk reported the message through internal channels. Thankfully, there are no secret recordings.

The similarities, unfortunately, end here. Clinton was impeached, held in contempt, and surrendered his law license. Judge Betsy was given a slap on the wrist, and her identity was kept secret. Her punishment: she can write a vaguely-worded apology letter that will not confess any real errors, she won't have to serve on burdensome committees (that might be seen as a reward), and she can avoid all of the burdensome administrative work of being chief judge. Judge Betsy doesn't even read 70% of the civil orders she signed; this doesn't strike me as a particularly capable administrator. (I checked her docket, and she has signed orders today and yesterday; the world continues to turn.) There is no punishment at all. She obstructed the investigation, lied to several judges, and tried to retaliate against her law clerk. She only apologized when she got caught.

There are many stains on the federal judiciary. There is a stain on the couch cushion in Judge Betsy's chambers. Another stain is the flagrant abuse of discretion by Judicial Council of the Eleventh Circuit to make this reprimand private. Yet another stain was left by the Committee on Judicial Conduct and Disability of the Judicial Conference that affirmed this private reprimand. There are judges on both bodies that I respect, but they grossly erred here.

Of course, the biggest stain has been left by every member of the judicial apparatus who has done NOTHING to stop the stealth impeachment of Pauline Newman by Kimberly Moore. Judges can have sex in their offices, retaliate against their law clerks, lie about it, yet keep their reprimand private. But Judge Newman who has done nothing wrong hasn't been able to hear a case in years. Moore even mocks Newman by omitting her from a narcisisttic AI cartoon. Shame on them all.

What come next?

First, the House of Representatives needs to initiate impeachment proceedings for Judge Betsy. Perhaps if Judge Betsy felt some actual heat, she would take the honorable course and resign. Moreover, if the judiciary feels compelled to keep this entire matter under wraps, Congress can shine light on the entire matter. The impeachment power should include the power to subpoena records from the Judicial Council. As a generally matter, judicial records should not be subject to impeachment, but here the judges are acting in an administrative capacity pursuant to a federal statute. Under Trump v. Mazars, it would seem Congress has the power to investigate how its law is being enforced against a sitting federal judge. If the judiciary is serious about avoiding judicial impeachments, then they need to take seriously policing their own internal misconduct.

Second, Congress needs to revisit the discretion given to federal judges to police themselves. If these facts can conceivably justify keeping a reprimand private, the rules need to be changed. The public needs to know. Remember that Judge Moore tried to use "anonymity" to keep her inquisition of Judge Newman private. The subpoenas could also be used in furtherance of enacting new judicial ethics legislation. I realize much of these issues about judicial reform are partisan, but I hope all fair-minded people would agree that the punishments for Judges Newman and Betsy are not similar.

Third, the Georgia Bar needs to open a disciplinary proceeding into Judge Betsy, who remains an active member in good standing. After all the nonsense "barfare" we have seen, this would be an especially appropriate target for the disciplinary counsel to look into. Does a federal judge who has sex in chambers, and then lies to her presiding judges, have the candor and character to practice law?

Fourth, given the Judge's longtime friendship with the victorious DA, who herself had some experience with infidelity on the job, it is unlikely the Fulton County District Attorney will do anything. The U.S. Attorney for the Northern District of Georgia may find worthy of investigation the Judge's false statements and misuse of government property (that, the cushions).

A post jocularly characterizing AIs as our children reminded me of this stanza from Philip Larkin:

They fuck you up, your mum and dad.
They may not mean to, but they do.
They fill you with the faults they had
And add some extra, just for you.

Many parents are excellent, of course (as mine are). But what kind of parents we are to AI remains to be seen ….

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On February 11, the Judicial Council of the Eleventh Circuit published an order with remarkable conclusions: a federal district court judge somewhere in the Eleventh Circuit "engag[ed] in an extramarital affair with a law enforcement officer and, in the course of the affair, having sexual intercourse in the Subject Judge's office during work hours and within hearing distance of the judge's clerks." Ultimately, however, the Council issues a private reprimand, rather than a public reprimand. The identity of the judge is not disclosed. But many of the clues in the memorandum point to a particular judge.

First, we can easily narrow down which of the three states in the Eleventh Circuit is at issue. The order refers to a "victory party for a District Attorney" in 2024 the night before "the judge's summer interns' first day." Florida does not have District Attorneys; they are called State Attorneys. So we are down to Alabama and Georgia. In 2024, the Alabama primary was on March 4 and the primary runoff was on April 16. Those dates don't match with when a summer intern would start. In Georgia, the primary was on May 21, 2024. That date matches up well with the start of a summer internship.

Second, the memorandum indicates that the subject judge is not currently the Chief Judge of the District. The memorandum further states that the chambers of the chief judge are "configured almost identically to the Subject Judge's chambers," which suggests the chief judge and the subject judge are in the same building. Georgia is divided into a Northern District, a Middle District, and a Southern District. The Chief Judge of the Southern District is stationed in Savannah. He appears to be the only active status judge stationed in that building. The Chief Judge of the Middle District is stationed in Albany. No other active status judges are stationed in Albany. As best as I can tell, all of the active Northern District Judges have chambers in the Richard B. Russell building in Atlanta. (I visited that high-rise tower in 2008 when I interviewed with Jack Camp, another disgraced NDGA judge.) And it would stand to reason that chambers on different floors would have similar layouts. It seems very likely that the subject judge is stationed in Atlanta.

Third, the reprimand states that this judge would "forego service as chief judge should the Subject Judge be otherwise eligible to serve in that cap." The current chief judge's tenure will expire, at the latest, in May 2032. There are several active duty judges in the Northern District of Georgia who could, in theory, be eligible to become chief judge in 2032. But that list is fairly small.

Fourth, there was a very high profile District Attorney race in Atlanta that was settled on May 21, 2024: Fani Willis won the Democratic primary for the Fulton County District Attorney. Yes, Fani Willis is the prosecutor who indicted Donald Trump and his associates for alleged election interference. There were many press reports about Willis's victory in the 2024 Democratic primary. The memorandum makes several references to martinis. For example, "the Subject Judge explained that the judge had consumed too many martinis the night before at the primary election victory party for a District Attorney." Moreover, "Based on news coverage, including video and photos, the District Attorney's campaign held an election watch party at which drinks or food in martini glasses appeared to have been served." Well, there were certainly martinis at Willis's party. Here is a photo of Nathan Wade at Willis's victory party from Fox 5 Atlanta. In the background you can see a martini glass. For those who do not recall, Wade resigned as special prosecutor in the Trump case after admitting to having an affair with Willis.

If you watch the video of her celebration, you can see martini glasses on the waiter's tray.

The Atlanta Journal Constitution has another photo of a woman next to Wade holding a martini. The AP has many more.

Fifth, the memorandum states that the "Subject Judge acknowledged having been friends with a District Attorney since 1999." The judge also had "former district attorney's office colleagues" at the victory party. The memorandum further relays, "The Subject Judge stated that, on one occasion, at the District Attorney's invitation, the judge went to a 'mixer' of former employees of a District Attorney's Office—where the Subject Judge previously worked."

The reprimand also disqualified the judge from being chief judge, which would rule out any senior status judges or judges who have already aged out of being chief judge. How many judges of the Northern District of Georgia in Atlanta could have plausibly been friends with Fani Willis since 1999, worked in the Fulton County District Attorney's Office, and could still be in line to be chief judge? There is only one judge who checks all of those boxes: District Court Judge Eleanor Ross.

Let's start with her background. From 1998 to 2002, she served as a senior assistant district attorney in Fulton County, Georgia. That would have given her a chance to work with Fani Willis, who was an assistant district attorney during that time. After a stint in the U.S. Attorney's office, Ross returned to Fulton County as an Executive Assistant District Attorney. She was appointed to the state bench in 2011, and President Obama nominated her for the federal bench in 2014. It stands to reason that she would still be in touch with her former prosecutor colleagues from about 15 years ago. I checked the biographies of the other active duty judges in NDGA, and none served in the Fulton County District Attorney's Office.

District Court Judge Eleanor Ross was born in December 1967. She is next in line to be Chief Judge based on seniority. (There is one judge ahead of her who has been on the bench longer, but he has already aged out.) In May 2032, Ross will be short of 65 years old, and would be eligible to become Chief Judge.

The memorandum further states that on the day after the DA's victory party, "Subject Judge presided over a criminal revocation proceeding." Indeed, Judge Ross presided over a revocation of supervised release on May 22, 2024 at 11:30 AM in 1:23-cr-350.

I cannot know for certain if Judge Ross is the subject judge, but a lot of evidence points in that direction. I emailed Judge Ross's courtroom deputy seeking a comment from the judge, but did not receive a response. I will post any response Judge Ross sends.

Read the Complaint for more on the factual allegations and on the remedy the DoJ seeks. The Introduction:

On April 25, 2024, following months of antisemitic and anti-Israeli demonstrations, masked and armed agitators, many of whom were openly hostile to Jews and Israelis, occupied the heart of the University of California, Los Angeles ("UCLA") campus. They built an illegal encampment, surrounded it with barriers, and formed "human phalanxes" to block Jews and Israelis from entering academic buildings. They kicked and slapped Jews, beat Jews with sticks, and assaulted Jews with pepper spray. One Jewish student was knocked unconscious and was taken to the hospital with an open head wound.

Although UCLA knew that its Jewish and Israeli students risked physical assault when attempting to go to class or the library, UCLA inexplicably took no serious action whatsoever until May 2, 2024, when it finally allowed police to clear the encampment. Chaos ensued. Law-enforcement officers "were met with bursts of pepper spray, protesters wielding fire extinguishers against them, bright strobe lights, and protesters wearing helmets and goggles."

UCLA's own Task Force to Combat Antisemitism and Anti-Israeli Bias ("Task Force"), published a damning report (Ex. A) concluding that UCLA's "leadership allowed the encampment and related denial of campus access to continue" and "officials continued to refuse to break up the encampment even after the protesters denied Jews and others free passage and access to campus classrooms and facilities." UCLA's leadership apparently preferred a do-nothing "de-escalation strategy" to protecting their Jewish and Israeli students from an angry mob organized by peers armed with tasers, lumber, and a sword.

Free Speech Campus Free Speech Anti-Semitism

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In my book, in defense of considerably more constitutional protection for student speech, I make an autonomy-enhancing argument, relying not only on the importance of respect for student autonomy on the part of school authorities, implying that in almost all circumstances, students should be able to say what they want to say and how they want to say it, without fear of being punished. I also underscore the extent to which the exercise of free speech rights over time can help students develop their autonomous capacities, as speakers, listeners, and thinkers. That is not to say that other free speech arguments are bad. I just happen to think that an autonomy-enhancing one, coupled with the inability of school officials to censor competently or impartially, is particularly well-suited for the context of secondary education.

Although I'm not a libertarian, I am very libertarian about some things, including free speech. I might be even more of a free speech absolutist than Professor Volokh is (if that is logically possible, ha ha). I detest paternalism, that is, justifications for restrictions on free speech that maintain that not being allowed to speak or be exposed to the ideas of others is for the good of the speaker or the listener. I would prefer to live in a society where normally, lawmakers do not tell people what to do, as if they are wiser or know a person better than that person knows him/herself. I find it arrogant for anyone to assume that they know what is better for me than I do and to think they should be able to use political power to coerce me for my own well-being.

For similar reasons, paternalistic defenses of censorship of student speech do not work. Respect for the autonomy of each student on the part of school authorities requires a very strong presumption in favor of letting students express themselves, even when they express false, offensive, or stupid ideas. By "autonomy," I mean the right to make personal choices about the most important aspects of one's life and to be responsible for the consequences. People are supposed to be persuaded, not manipulated, threatened, or coerced, and that includes giving them access to the information and ideas that enable them to exercise their autonomous capacities. That way, each agent can evaluate, as carefully as possible, the considerations for and against life decisions, especially the most important ones concerning which ends to pursue, how to pursue them, and when (or whether) to revise them.

5/27/1935: Schechter Poultry Corp. v. U.S. decided.

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Reinink v. Hart presented an excessive force claim under the Fourth Amendment. The case was rescheduled three times and relisted after eight conferences. On May 26, the Court finally denied certiorari. But there was an unusual notation:

Petition DENIED. Justice Thomas and Justice Alito would grant the petition and summarily reverse for essentially the reasons given in Judge Larsen's separate opinion. See Hart v. Grand Rapids, 138 F. 4th 409, 426–428 (CA6 2025).

It is not uncommon for a Justice to dissent from the denial of certiorari, and maintain they would have summarily reversed the lower court. I found eleven such cases since 2012. But in each such case, the dissenting Justice authored an opinion explaining why he or she would have SumRev'd.

But here, Justices Thomas and Alito jointly voted to summarily reverse the lower court opinion without writing separately. And they did so "for essentially the reasons given" by Judge Larsen's separate opinion. Larsen's opinion, which concurs in part and dissents in part stretches about three pages.

I suppose this dissent is a compliment. The Justices didn't even feel compelled to write separately. They just adopted a lower court judge's opinion. But the word "essentially" is a hedge. They apparently disagree with something, but do not tell us what.

What happened here? Thomas and Alito kept the case alive for five months, hoping to find another two votes for cert, but were unable to do so. They could have written a dissental, but it is the end of the term, and more important work is on the docket, so they just let Judge Larsen speak for them.

From Eby v. Bd. of Curators, decided today by the Missouri Court of Appeals (Chief Judge John P. Torbitzky, joined by Judges Angela Turner Quigless and Thomas C. Clark II); the opinion doesn't preclude a defamation lawsuit against the actual authors of the articles, though presumably they don't have much money to compensate the plaintiff even if he prevails:

St. Louis Public Radio ("KWMU") is owned and operated by the University. KWMU hired Eby in 2009. He eventually became KWMU's general manager. In September 2020, KWMU removed Eby as general manager after he was accused of racism.

In the wake of his termination, Eby filed a defamation action alleging the University repeated and/or republished defamatory statements. Eby alleged an anonymous group of KWMU's staffers published an article on Medium.com accusing him of upholding "white supremacy at the station by remaining complacent with the status quo." KWMU published two online articles that quoted and hyperlinked the Medium.com article's accusations. Eby also alleged KWMU falsely reported that he mismanaged KWMU's finances.

Free Speech Defamation

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From Alshara v. Republic of Iraq, decided today by Judge Linda Parker (E.D. Mich.):

Pursuant to § 1915(e)(2), the Court is required to sua sponte dismiss a complaint filed [in forma pauperis, i.e., as an indigent litigant who can't afford a filing fee -EV] before service on a defendant if it determines that the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief….

In the Complaint, Plaintiff states that he is seeking to hold Iraq and Lebanon liable for their anti-LGBTQ+ policies, legislation, and systematic state-sponsored persecution. Plaintiff claims that these policies and laws "have been exported to the United States through their nationals" and "have directly caused catastrophic harm to Plaintiff, a gay United States citizen residing in Wayne County, Michigan." Plaintiff's family members, who are nationals and persons of Iraqi and Lebanese origin, have allegedly subjected Plaintiff to physical harm and threats of harm and death—behavior Plaintiff claims is "motivated exclusively by anti-gay animus rooted in the official state ideologies and legal frameworks of Iraq and Lebanon." Plaintiff indicates that he has modeled this lawsuit on the jurisdictional and substantive framework established in Doe v. Deutsche Lufthansa (9th Cir. 2025).

In that case, however, the Ninth Circuit considered only whether there was personal jurisdiction over the defendant-airline in California and whether there was federal subject matter jurisdiction based on diversity jurisdiction. The court did not discuss whether the plaintiffs stated a viable cause of action against the defendant-airline. Moreover, the plaintiffs there were not suing a foreign country based on its laws and policies; instead, they were suing the defendant-airline for its own alleged misconduct.

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There's a lot happening in today's decision in Thakur v. Trump, by Ninth Circuit Judges Richard Paez, Morgan Christen, and Roopali Desai, but I thought I'd focus on the First Amendment analysis. To oversimplify, the Trump Administration canceled a wide range of academic grants "because of the recipients' perceived expression of DEI, DEIA [diversity, equity, inclusion, and accessibility], or environmental justice viewpoints." The grant recipients sued, arguing that such viewpoint-based cancellations are unconstitutional.

The law related to viewpoint-based conditions attached to government subsidies is complicated. On one hand, as the Court noted in Rust v. Sullivan (1991), "When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism." Likewise, the government can fund a program for promoting military enlistment, or recycling, or racial equality, without having to give grants for contrary views.

On the other hand, as the Court noted in cases such as Rosenberger v. Rector (1995), the government can't set up a generally available funding program and then exclude recipients based on viewpoint. For instance, it can't exclude religious newspapers from a funding program for student newspapers at the University of Virginia, or excluding anti-government or racist or pro-Israel groups from the 501(c)(3) charitable tax deduction program.

Where should the line be drawn? Here's what Thakur says:

[T]here is a critical distinction between creating or ceasing a particular program (or subsidy, or forum), on one hand, and discriminating against disfavored speaker viewpoints within a program (or subsidy, or forum), on the other. The government may impose restrictions on subsidies "to define the limits and purposes of [that] program." But it cannot "leverage its power to award subsidies … into a penalty on disfavored viewpoints." Indeed, the Supreme Court has repeatedly affirmed "the requirement of viewpoint neutrality in the Government's provision of financial benefits." Rosenberger.

And here's a short excerpt from the panel's long elaboration of the matter:

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When I was in college, liberals, not conservatives, were more zealous in defending free speech, when it came to issues like whether pornography ought to be constitutionally protected. In 1990, when I was in law school, and my first-year constitutional law class discussed Texas v. Johnson, the famous flag burning case, only the more conservative students thought that what Gregory Johnson did should not be constitutionally protected expressive conduct. At that time, a decade before I took Professor Volokh's free speech class when I was a graduate student in the political science department at UCLA, I hoped that someday, free speech would be a principle that would transcend partisanship. After all, it can be hard to predict what political party will control your school board, city council, state legislature, or Congress. If you give lawmakers the authority to censor an idea that you despise at one moment, whether you realize it, you also are giving them the authority to censor ideas that you find valuable in the future. No doubt, it can be very hard to stomach ideas that you find repulsive but inevitability, others will feel the same way about your ideas. In a society committed to free speech, the government must be neutral; it may not discriminate against viewpoints, including deeply offensive and even racist, sexist, and homophobic ones. No real human government will be able to censor "bad" viewpoints competently or fairly, even if we agreed which ones were bad most of the time. Equally importantly, the people who live in that society must be willing to allow others to speak their minds. The quality of their arguments ought to be beside the point.

These days in this country, it seems like a bad situation is becoming worse. On both the left and the right, of the American political spectrum, the natural tendency to censor disagreeable ideas seems increasingly more difficult to resist, including young adults. As someone who teaches at an undergraduate institution and has been doing so for more than twenty years, my impression is that college students are not nearly willing to countenance the expression of ideas, which they despise, as they used to be. Unlike concerns about censorship on college campuses, which have received a lot of media attention, when guest speakers are disinvited or shouted down, few people care much about the extent to which school authorities may suppress student speech in a public junior high or high school. The assumption is that due to their age and relative immaturity, most of what they contribute to the marketplace of ideas at their school will have little, if any, value. Furthermore, the primary mission of a school is to educate its students, and student speech can be disruptive or distracting.

As such, it may appear to be obvious that teenagers should not be able to exercise the same free speech rights that college students may exercise. However, position strikes me as harder to defend than most people acknowledge. After all, it is almost self-evident that if tweens and teenagers, who are impressionable, go to schools that are hostile to free speech, will absorb the wrong lessons, regardless of what they might read in their civics class. They can be punished for saying this, writing that, or wearing a tee short that expresses a view about abortion, guns, same-sex sex, or whatever, they could get detention, be suspended, or even expelled. Sooner rather than later, they will learn how to self-censor.

My new book, Democracy in Education: The Importance of Free Speech in American Public Schools, is about the importance of the free speech of junior high school and high school students in a country like our own; it calls into question the double standard as well, where public schools are treated so differently than colleges for free speech purposes. There are many ways to defend free speech, and my focus is on how educational the experience can be, when students not only are challenged to formulate their own views but are exposed to those of their classmates. Indeed, an important part of becoming a citizen in a democracy calls for learning how to deal with difference and disagreement in political life.

I'm delighted to report that Prof. Ronald Den Otter (Cal Poly) will be guest-blogging this week about this new book. The publisher's summary:

In contrast to recent efforts to restrict students by putting more power in the hands of parents and school officials, Ronald C. Den Otter makes a bold and rigorously argued case for respecting the autonomy of students and expanding their free-speech rights.

In recent years, the debate over student speech has roiled college campuses and elicited a wave of books and articles, from both the Right and the Left, over what speech is permissible and who should receive a platform to speak. What has largely been overlooked in this debate is the freedom of speech—or lack thereof—enjoyed by junior high and high school students in American public schools.

Education in Democracy makes a powerful case for why free speech is just as important, if not even more so, for secondary education students as it is for those in higher education. As Ronald C. Den Otter shows, US Supreme Court jurisprudence on this topic lacks consistency and clarity, tending to restrict freedom for these students while giving school officials almost complete control, as in Justice Clarence Thomas's concurrence in Morse v. Frederick. Den Otter argues instead for a stricter version of the Tinker v. Des Moines Independent Community School District substantial disruption test, proposing that public junior high and high school students should be treated the same as students at public universities.

Without ignoring the challenges of hate speech, Den Otter makes a bold and impassioned argument for respecting the autonomy of all students and developing their autonomous capacities. Paternalistic treatment of students in the form of censorship by school authorities is morally and constitutionally unacceptable, according to Den Otter. Instead, American society should see public schools as laboratories in pluralism and democracy, places where students cultivate the civic virtue of tolerance and learn how to disagree in a responsible way. Doing so requires the bedrock foundation of free speech.

And the jacket blurbs:

Free Speech

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