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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Fusionism and its Limits
Fusionism is far preferable to nationalism and postliberalism. But it has shortcomings of its own, and its political prospects are questionable.
Recent political developments have rekindled longstanding debates over "fusionism," the combination of libertarianism and conservative traditionalism that dominated the American right from roughly the late 1970s through the early years of this century. That dominance has been severely undermined and likely overthrown by the rise of nationalism and "postliberalism." But some would like to revive it. Reason editor Stephanie Slade's important new book Fusionism: Liberty, Virtue, and the Future of the American Right outlines one notable case for such a revival.
I agree with Slade, Jonathan Adler, and others that fusionism is far preferable to nationalism and postliberalism. But I am skeptical about its political viability. In addition, fusionism has significant conceptual flaws. Finally, at least in the short to medium term future, an alliance with "abundance liberals" is probably a more promising political strategy for libertarians than a revival of fusionism.
Despite my relative skepticism about a revival, I readily acknowledge fusionism's significant past achievements, and ongoing superiority over various other tendencies on the conservative right. Between the 1970s and the early 2000s, fusionist conservatives and libertarians (sometimes with the help of moderate/"neoliberal" Democrats) made huge contributions to such achievements as deregulation of many sectors of the economy, reducing tax rates, reinvigorating constitutional protection for property rights and limits on federal government power, and the West's triumph in the Cold War. While early fusionists sometimes undervalued the Civil Rights movement and were soft on racism, over time most of them came to promote color-blindness and and abjuring racial and ethnic discrimination in government policy. They even, for a long time, succeeded in making racial and ethnic color-blindness the dominant approach to such issues in the conservative movement. William F. Buckley and other fusionists also worked to purge the political right of its longstanding tendencies towards anti-Semitism. In combination, these are no small achievements.
The Rise of Right-Wing Nationalism and Postliberalism
But, especially over the last decade, fusionism has been displaced by nationalism as the dominant ideology of the Republican Party and the conservative movement. Where fusionism sought to reconcile traditionalism and liberty, nationalism is a grave menace to liberty across a wide range of issues. Consider Donald Trump's massive tariffs, federal takeovers of numerous private corporations, attempts to use the FCC and other government agencies to undermine free speech, and policy of mass deportations (which threatens the civil liberties and economic future of native-born citizens as well as immigrants).
Instead of color-blindness and nondiscrimination, we now have a conservative movement increasingly permeated with racial and ethnic bigotry and anti-Semitism of the kind fusionists sought to purge. Prominent right-wing "influencers" go so far as to claim we need to bar Indian immigrants because they work too hard and undermine the objectives of "homogeneity" and "maintain[ing] a white majority in the country." Many congressional Republicans also promote religious discrimination in immigration and other policies. In foreign policy, Trump has undermined relations with liberal democratic allies like Canada, Australia, and the nations of the European Union, and kowtowed towards illiberal nationalist authoritarians like Vladimir Putin.
Trump's idiosyncratic personal predilections contribute to some of these developments. But most arise from inherent tendencies of nationalism, which gravitates towards a zero-sum view of the world that leads to expanded government control of the economy, repression of racial and ethnic minorities, undermining civil liberties, and authoritarianism.
The "postliberalism" advocated by many leading right-wing intellectuals and activists is just as bad. Postliberals like Adrian Vermeule and Patrick Deneen are very clear about their desire to massively expand government control over the economy and civil society, and destroy both economic and personal liberties. Unlike nationalism, postliberalism has little mass public support. But it does have considerable influence among the intellectuals and activists who may staff future Republican administrations and congressional offices.
Illiberal big-government nationalism holds a strong sway over the Republican base. The 2024 election dramatically illustrates that. In the 2024 GOP presidential primary, Trump was challenged by Nikki Haley (a prominent advocate of traditional fusionism) and Ron DeSantis (popular governor of a major red state who tried to, in effect, split the difference between MAGA nationalism and pre-2016 conservatism). And, yet, despite the events of January 6, 2021 and numerous scandals, Trump not only beat these opponents, but did so very easily. While that was partly due to his particular type of charisma, it also highlights the influence of illiberal nationalism over the GOP. Even now, with Trump increasingly unpopular, most congressional Republicans shy away from challenging his worst policies, for fear of losing to MAGA types in GOP primaries. Many of those who are willing to challenge him on major issues have either been ousted in GOP primaries (like Rep. Thomas Massie), or chose not to run for reelection because of the likelihood of suffering that fate (e.g. - Rep. Don Bacon).
Facing a difficult political environment in the 2026 midterm elections, some congressional Republicans have become more willing to criticize a few of Trump's policies, such as the badly mismanaged Iran War. But very few have repudiated his big-government nationalism across the board or called for a return to fusionism.
Perhaps this will all change once Trump leaves the scene. But we shouldn't count on it. At this point, the major likely contenders for the 2028 GOP presidential nomination - Vice-President J.D. Vance and Secretary of State Marco Rubio - seem like they are vying for the mantle of inheritors of Trump's worst tendencies, not opponents of them.
Inherent Limitations of Fusionism
Even if fusionists do manage to regain control of the Republican Party and the conservative movement, the ideology's inherent limitations might undermine its value. The extent to which fusionism is compatible with strong protections for economic and personal liberty is actually ambiguous. Frank Meyer, a key founder of fusionism in the 1950s and 60s, famously argued that liberty and virtue are mutually reinforcing because liberty is what enables people to be truly virtuous. A person who only does the right thing because he is forced to by the state isn't truly virtuous at all. Think, for example, of a man who only refrains from violence and theft for fear of going to prison. A paragon of virtue he is not.
This position has considerable merit. But most social conservatives, including many otherwise sympathetic to fusionism, don't fully buy it, or even come close. They argue that, at least in many instances, we want to achieve virtuous behavior, regardless of the motivation for it. Or, at least, that doing the right thing for a bad reason is far preferable to not doing it at all. Thus, if you believe that using pornography, prostitution, gambling, taking various drugs, and so on are inherently immoral, then you may well advocate using government power to suppress these activities, even if people who only refrain out of fear of punishment are not as virtuous as those who abjure them voluntarily.
Many conservative fusionists do, in fact, believe that a wide range of consensual activities like the above are inherently evil. Alternatively, many believe that we have to suppress at least some of them out of paternalism. For example, they argue we must suppress drugs, prostitution, and gambling, because people who do these things don't understand what's good for them.
For these reasons, most conservative fusionists have in fact been willing to endorse many policies that severely curtail liberty. Even Ronald Reagan - the president whose administration most exemplified fusionism - promoted a major expansion of the War on Drugs, a federal policy that massively curtails liberty by killing or imprisoning hundreds of thousands people merely because they have used, possessed, or distributed substances the government considers too risky. Reagan's drug policies were not as bad as Trump's policy of outright murdering supposed drug dealers in the Caribbean and Pacific. But they were very bad, even so - and a striking example of the limitations of fusionism.
Elsewhere, I have argued that, at this moment in political history, the best available potential allies for libertarians are "abundance liberals." They are by no means perfect. But they agree with us - to a large extent - on numerous major issues, including trade, immigration, nuclear power, "YIMBY" housing deregulation, and more. And, like us, they tend to oppose both left and right-wing ethnic identity politics (on which latter point see recent articles by Matt Yglesias and Kelsey Piper). On the whole, they are less paternalistic and less prone to advocate suppression of consensual activities than most fusionist conservatives. They also have considerably greater influence over the Democratic Party and the political left, generally, than fusionists currently have in the Republican Party and the conservative movement.
The left, of course, has its own dangerous illiberal menace in the form of "democratic socialists," whose statism has much in common with that of MAGA nationalists. But this faction is nowhere near dominating the Democratic Party and the political left to the degree that nationalists have come to dominate the right.
None of this proves that libertarians cannot continue work with fusionist conservatives at all. There are many issues on which there is still room for cooperation. I myself have worked with such conservatives in the Society for the Rule of Law, and in the effort to combat Trump's tariffs (where they played crucial roles in the litigation that led to the invalidation of Trump's IEEPA tariff power grab by the Supreme Court and in currently ongoing efforts to challenge his attempts to use other laws to reimpose sweeping tariffs). Some conservative fusionists are more pro-liberty than others. And, for most, there is considerable variation across issues.
And, perhaps, things will be different in a decade or two. The Trumpist moment in right-wing politics may dissipate over time, though it seems unlikely to do so quickly.
Productive cooperation between libertarians and (some) conservatives is still very much possible. But we should recognize that fusionists are unlikely to regain control over the conservative movement anytime soon, and that fusionism has notable inherent limitations. Thus, we should look for other allies, and carefully limit the percentage of our eggs that we put in the fusionist basket. At this point, it cannot safely hold very many of them.
Kansas Ban on Private Parties' Partially Prefilling Voters' Mail Ballot Applications Upheld
A short excerpt from today's longish Tenth Circuit opinion in VoteAmerica v. Schwab, by Judge Timothy Tymkovich, joined by Judges Michael Murphy and Joel Carson:
To reduce voter confusion and increase confidence in elections, the Kansas legislature prohibited private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters. VoteAmerica and Voter Participation Center sued, alleging that the restriction infringed on their freedom of speech guaranteed by the First Amendment….
Relying on the political reaction against mail-in voting and Kansas's failure to prove an adequate fit between its stated interests and the Prohibition, the [district] court concluded that Kansas enacted the Prohibition to suppress speech supporting mail-in voting. Applying strict scrutiny (and intermediate scrutiny in the alternative), the court concluded that the law failed because it was not sufficiently tailored….
[W]e REVERSE the district court's judgment. The district court found an improper purpose without evidence from the Prohibition's justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error. Because the Prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional….
Florida "Addictive Features" Social Media Restrictions on Minors Likely Constitutional, Eleventh Circuit Holds
Some short excerpts from the long opinion in Computer & Comm. Indus. Ass'n v. Uthmeier, decided today by Judge Kevin Newsom, joined by Judges Robert Luck and Gerald Bard Tjoflat:
One of the most pressing is how and in what ways social-media use affects minors. According to the State of Florida, social-media companies seed their platforms with "addictive features"—push notifications, auto-play, infinite scrolling, etc.—in order to make them, well, addictive. These features, the state says, are "psychological hooks" that "overstimulate the reward center in the brain" and "foster compulsive overuse." Florida insists that children are particularly susceptible to these "addictive features" because their brains are still developing. In particular, the state contends, the features contribute to "[c]ompulsive or uncontrollable" social-media use among children and threaten a "youth mental health crisis." Children face "'sleep problems, attention problems, and feelings of exclusion,' all of which put [them] at risk of 'depression, anxiety, and neuroticism.'"
In an effort to protect children from social-media addiction and its ensuing effects, Florida passed HB3, which imposes age-restriction requirements on platforms that use "addictive features." In particular, HB3 requires platforms within its ambit to prohibit anyone under the age of 14 from creating an account, and to prohibit anyone else under 16 from doing so without parental consent….
[W]e hold that HB3 likely passes First Amendment muster because it is a content-neutral speech regulation that satisfies intermediate scrutiny….
The court held that HB3 was a speech restriction and thus implicated the First Amendment:
Lawsuit Alleging Bank Played Role in Facilitating "Jeffrey Epstein's … Sex-Trafficking Operation" Can Go Forward
From Molchonova v. FirstBank Puerto Rico & First Bancorp, decided today by Judge Jed Rakoff (S.D.N.Y.):
On September 25, 2026, this Court issued a "bottom-line" Order granting in part and denying in part the motion of defendants FirstBank Puerto Rico and First Bancorp (collectively "FirstBank") to dismiss the complaint brought by plaintiff Julia Molchonova. This Opinion sets forth the reasons for that Order….
An excerpt of Molchonova's allegations (which are just allegations at this stage):
Molchonova, who was one of Epstein's victims, alleges that FirstBank participated in, and benefited from, Epstein's vast criminal enterprise in violation of federal and local law…. As alleged, FirstBank maintained dozens of accounts for Epstein, his entities, and his agents, facilitated millions of dollars in transfers to and from these accounts, and served as a banking reference for Epstein when he sought to charter his own banking entity. These services, among others, were "integral in helping [Epstein] fuel his international sex trafficking operation." …
The court allowed Molchonova's claim under the Trafficking Victims Protection Act ("on behalf of a putative class of Epstein victims") to go forward:
As this Court recently explained, the TVPA imposes civil liability on any "person or entity that knowingly benefits, or attempts or conspires to benefit, financially or by receiving anything of value from participation in a venture which that defendant knew or should have known has engaged in an act in violation of the TVPA." Participant liability "involves three elements: first, that the defendant participated in a commercial sex trafficking venture; second, that the defendant knew or should have known that the venture either involved the perpetrator's use of force, the threat of force, fraud, or coercion to cause the victims to participate in sex or that the venture involved sex with victims who were under the age of 18; and third, that the defendant benefited from its participation in the venture." …
Second Amendment Rights Forfeited by Past Terroristic Threats Conviction
Some excerpts from the long Third Circuit en banc opinion yesterday by Judge Stephanos Bibas in U.S. v. Bost (for another Third Circuit en banc case decided yesterday that reached the opposite result on different facts, see Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction):
The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality. Not every convict poses such a risk—but James Bost does. He pleaded guilty to terroristic threats and other crimes. Years later, police caught him with a pistol not once, but twice. So he was charged with having a gun despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which makes it illegal for felons to have guns….
But Bost's violent conviction is prima facie enough to disarm him. We hold that some predicate crimes (like Bost's conviction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone….
In 2002, Bost carjacked someone, threatening to kill the driver unless she gave him money. To get that money, he drove to her mother's home, where she escaped from the car, screaming for help. Bost was then arrested and pleaded guilty to terroristic threats and criminal conspiracy (as well as false imprisonment and simple assault). Those first two Pennsylvania crimes are first-degree misdemeanors punishable by up to five years in prison. One element of the terroristic-threats crime required "a threat to commit any crime of violence with intent to terrorize another." Bost was sentenced to four years' probation.
Later, while on bail for another arrest, Bost failed to appear in court. U.S. Marshals tracked him down. They found him in his girlfriend's home, next to a couch with a stolen .38 caliber pistol on it. Bost was indicted federally for possessing a stolen gun and possessing a gun despite his convictions (based on the terroristic-threats and conspiracy convictions). He moved to dismiss the indictment, arguing that § 922(g)(1) [the federal bans on felons possessing guns -EV] is unconstitutional as applied to him and that it is facially unconstitutional….
The court held that the case against Bost could go forward:
America: Democracy or Republic?
I'm interviewed about this roughly at about 3:15 to 6:30 of this episode of PBS's Civics Made Easy series. Unfortunately, they couldn't include all my discussion of the historical support for my view, so I thought I'd reprise below an earlier post of mine on the subject.
* * *
The U.S. Is Both a Republic and a Democracy
Don't just take it from me; take it from the Framers and other early American statesmen: "Democracy" has long included representative democracy as well as direct democracy, and "Republic" was used to refer to regimes that were not representative.
[1.] I often hear people argue (often quite militantly) that the United States is a republic, not a democracy. But that's a false dichotomy. A common definition of "republic" is, to quote the American Heritage Dictionary, "A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them"—we are that. A common definition of "democracy" is, "Government by the people, exercised either directly or through elected representatives"—we are that, too.
The United States is not a direct democracy, in the sense of a country in which laws (and other government decisions) are made predominantly by majority vote. Some lawmaking is done this way, on the state and local levels, but it's only a tiny fraction of all lawmaking. But we are a representative democracy, which is a form of democracy.
[2.] And the same two meanings of "democracy" (sometimes direct democracy, sometimes popular self-government more generally) existed at the founding of the republic as well. Some framing-era commentators made arguments that distinguished "democracy" and "republic"; see, for instance, the Federalist (No. 10), as well as other numbers of the Federalist papers. But even in that era, "representative democracy" was understood as a form of democracy, alongside "pure democracy": John Adams used the term "representative democracy" in 1794; so did Noah Webster in 1785; so did St. George Tucker in his 1803 edition of Blackstone; so did Thomas Jefferson in 1815. Tucker's Blackstone likewise uses "democracy" to describe a representative democracy, even when the qualifier "representative" is omitted.
Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction
From yesterday's Third Circuit en banc opinion in Williams v. Attorney General, written by Judge Paul Matey (and citing, among others, our own Will Baude) ((for another Third Circuit en banc case decided yesterday that reached the opposite result on different facts, see Second Amendment Rights Forfeited by Past Terroristic Threats Conviction):
The Second Amendment is a primary protection against tyranny, a strong bulwark securing American liberty, and an indispensable means of defending the public good. So courts testing restrictions on these "most sacred" and "necessary" rights must consider the history and tradition of firearm regulations with care and rigor. Edward Williams had two convictions for driving under the influence of alcohol in the early 2000s, the second of which (unbeknownst to him) triggered 18 U.S.C. § 922(g)(1), which purports to make it "unlawful" for persons convicted of "a crime punishable by imprisonment for a term exceeding one year" to possess firearms. Seeking to restore his rights, Williams filed for a declaratory judgment to confirm that § 922(g)(1), as applied to him, runs afoul of the Second Amendment.
The court ruled in Williams' favor; here are some excerpts from the long opinion:
We start [the Second Amendment inquiry] by asking the regulator whether its proposed liberty definition (or restriction, though every definition has some contracting element) is consistent with tradition. In assessing the response, we look for a custom of similar definitions.
A definition fitting within common and longstanding firearm regulation helps the regulator because long acceptance evidences noninfringement of the right. In contrast, it is likely impossible to show equivalence when the challenged restriction applies to people, places, and things that have gone unregulated for most of America's existence. Time is essential, and a recent innovation must be weighed against our "Anglo-American common-law tradition." An enduring custom since the founding is all but dispositive—one would be hard-pressed to argue that a state can prohibit the purchase of a flintlock musket. The same framework applies with respect to permissible regulations of people: if a regulation was common throughout our history, that is strong evidence that it does not infringe the right.
That is not the case here given the novelty of forever restricting all felons from possessing firearms for lawful purposes. The Federal Firearms Act of 1938 first made it "unlawful" for "any person who has been convicted of a crime of violence or is a fugutive [sic] from justice" to possess a firearm. {A "crime of violence" was defined in the Act to mean "murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year."}
In 1961, Congress expanded this prohibition, abandoning a focus on violence in favor of a technical bar on any person convicted of a "crime punishable by imprisonment for a term exceeding one year." By this point, "a crime punishable by imprisonment for more than one year" was the common approximation for "felony." The late entrance of a regulation tying felonies to gun possession disproves any longstanding customary contraction of the liberty codified in the Second Amendment.
New on SCOTUSBlog: "Witnessing a reorientation of the First and Second Amendments on the Roberts court"
"What a difference two decades has made for the First and Second Amendments."
SCOTUSBlog has published the latest essay from me and Randy Barnett on the recent changes in constitutional law. This entry focuses on the Religion Clauses and the Second Amendment. It begins:
Twenty years ago, the Supreme Court strictly enforced the separation of church and state, deferentially reviewed restrictions on free exercise rights, and played no role in enforcing the Second Amendment. This was the state of the law when one of us began law school in the fall of 2006.
What a difference two decades has made for the First and Second Amendments.
The next installment in this series considers the changes to Congress' enumerated powers, the president's executive powers, and the separation of powers between those branches.
TV Station News Managers Fired for Allegedly Anti-Gay Memo Win >$4M from Nexstar Media
The verdict came Friday; here's the backstory, from a decision in March in Fox v. Nexstar Media Group, Inc. by Judge Robert Jonker (W.D. Mich.), allowing plaintiffs' claims to go forward:
These cases arise from the fallout over an internal memo that two senior news managers at WOOD‑TV—Amy Fox and Stanton Tang—either wrote or approved regarding coverage of Pride-month events. According to Fox and Tang, management initially agreed that the memo merely restated corporate policy, but after some colleagues misinterpreted the memo as being anti‑gay—and after the memo was leaked externally—management allegedly shifted its stance and planted news stories that portrayed Fox and Tang as anti‑gay. The plaintiffs contend Nexstar did this to cause Fox and Tang to absorb the blame for the controversy while allowing the company to emerge unscathed.
In early June of 2023, Stanton Tang began to feel concerned about WOOD-TV's coverage of Pride-related events. To him, it seemed that the newsroom's approach to Pride coverage differed from its approach to coverage of other events, such as women's history month or black history month.
As Tang tells it, when it came to the latter events, the newsroom tried to approach coverage in a unified way, to ensure that coverage was diversified, newsworthy, and spread throughout the month. However, when it came to Pride events, the newsroom was deviating from its typical editorial review process, and many reporters were beginning to go cover stories about Pride festivals as soon as they heard that the event was taking place—without discussing with the rest of the newsroom whether the story ought to be covered, whether it was duplicative of another story that had recently aired, or whether some unique aspect of the story could be explored in a way that highlighted the story's overall newsworthiness. Tang was also worried that the volume of Pride stories being covered by WOOD-TV news staff was alienating some of the station's more conservative viewers.
On the morning of June 13, 2023, Tang shared his concerns with his Assistant News Director, Amy Fox. He explained that he wanted to ensure that any Pride‑related reporting included appropriate historical context and that the newsroom was approaching the topic consistently. To address these concerns, he asked Fox to draft an email to the newsroom. Fox did so and then shared her proposed email with Tang. Tang added a few more lines to the email—including a directive for reporters to "get both sides of the issue" when covering Pride events—and told Fox to send the memo to all staff, which she did….
Many coworkers opposed the memo, and some leaked it to outside media outlets, which reached out to Nexstar for comment. Fox and Tang were eventually fired, and Nexstar released two statements that were then quoted by other media outlets:
"Fortunately for Society, Plaintiff's Framework for Retrospectively Punishing News Outlets Is Not the Law"
From Tate v. Fox News Network, LLC, decided yesterday by Judge Gregory Presnell (M.D. Fla.):
Plaintiff has been a licensed attorney in Florida since 2006 and serves as the president of the residential homeowners' association ("HOA") in the Stillwater Lakes Subdivision ("SLS") where he resides.
On April 14, 2024, Plaintiff was arrested by the Palm Bay Police Department ("PBPD") and charged with criminal mischief and grand theft. His arrest stemmed from a probable cause affidavit (the "Affidavit") which stated the following:
On 04/14/2024, I Ofc. Barraza #158 and FTO Marcum #244 responded to a suspicious incident at Stillwater Lakes. The incidence occurred on the south side of the lake in Stillwater Lakes Subdivision, belonging to the HOA, not the defendant.
There were 3 juveniles' victims that were fishing on the property. The juvenile victims stated a man, later identified as Kyle Patrick Tate (The defendant), approached them with a firearm telling them to get off his property. Kyle willfully deprived the juveniles of their property and threw it into the woods, damaging it. The property included:
- Fishing reels and rods: $1900
- Tackles boxes containing fishing lures: $150
- Cast nets: $150
In addition, Kyle took one of the juvenile's phones which remains unrecovered. (Approximately $1500)
Based on the above information Kyle did deprive the victims of their property by taking the cell phone, and willfully and maliciously damaged the fishing equipment (3 fishing poles, fishing tackle) he was placed under arrest for Criminal Mischief (above $1000) and Grand Theft. Kyle was taken into custody and later turned over to the Brevard County Jail.
On May 2, 2024, Defendants published an article reporting on the incident with the headline: "Florida HOA president pulls gun on kids fishing on property: affidavit." The article reported the details in the PBPD Affidavit, acknowledging that the children involved (which it identified as being aged 7, 10, and 15) did not live in the subdivision and that they were fishing on property that belonged to the HOA, not Plaintiff. It also included quotations regarding the incident from one of the children's (the 10-year-old's) mother[:] … "'A gun should've never been pulled on them,' said the mother of the 10-year-old-child, who asked not to be named in this article. 'It was startling. He's still super shaken up, knowing that on a daily basis we have to drive by this subdivision where this man lives.'" …
Today in Supreme Court History: October 14, 1911
10/14/1911: Justice John Marshall Harlan I dies.
Open Thread
What’s on your mind?
Court Issues Preliminary Injunction Requiring CNN, MS NOW, and Politico to Be Readmitted to White House
"[T]he Court is 'not required to exhibit a naiveté from which ordinary citizens are free.'"
From Judge Timothy Kelly (D.D.C.) today in CNN, Inc. v. Trump:
On September 18, 2026, President Trump posted on social media that he was "proud to announce that, effective immediately," he was "banning" CNN, MS NOW, and POLITICO "from the White House." And sure enough, when reporters from those news organizations who hold "hard passes" allowing them to work there showed up the next day, they were denied entry. So Plaintiffs—these three news outlets and three individual hard pass holders who work for them—promptly sued the President and several Executive Branch officials, alleging that Defendants were violating their rights under the Fifth and First Amendments. They also moved for a temporary restraining order restoring their hard passes, which the Court granted. The Court found, under Sherrill v. Knight, 569 F.2d 124, 130–31 (D.C. Cir. 1977) and subsequent precedent, that Plaintiffs were likely to succeed on their claims that their hard passes were revoked without due process required under the Fifth Amendment, were likely to suffer irreparable harm without interim relief, and that the balance of the equities and the public interest tilted in their favor.
Now before the Court is Plaintiffs' motion for a preliminary injunction. The Court will grant that motion as well, finding that Plaintiffs are likely to succeed not only on their due process claim, but also on their two First Amendment claims. Still, no one should interpret the Court's decision to suggest that President Trump's concerns about accuracy and fairness in the media's reporting are unfounded, or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed. That said, for the reasons explained below, the Court will extend the relief it already ordered, which will continue to preserve the status quo while this case proceeds.
Unlike the decision granting the temporary restraining order, which was based only on plaintiffs' Due Process Clause rights, this decision also rules in favor of plaintiffs on First Amendment grounds. An excerpt from the court's conclusion that the Administration likely unconstitutionally retaliated against plaintiffs based on their speech:
No Immunity for Judge Who Locked Children in Holding Cells in Custody Case
From Rockett v. Eighmy, decided today by Eighth Circuit Judge David Stras, joined by Judges Bobby Shepherd and Jane Kelly:
When Judge Eric Eighmy had courthouse officers lock two children in holding cells because they refused to leave with their mother following a custody hearing, he violated their clearly established Fourth Amendment rights….
Bart Rockett and Kami Ballard divorced in Missouri, but initially stayed together to give their two kids, who were "aspiring stars," a chance to "make it big" in Los Angeles. The children found some success in the entertainment industry, including appearing on America's Got Talent, but their parents eventually split up.
Ballard filed a petition for sole custody that landed on Judge Eighmy's desk. During a hearing several months later, the children waited outside the courtroom while their parents tried to work it out. They agreed on primary custody for Ballard, with Rockett responsible for them at the beginning of each month and "during TV pilot season."
Once the hearing was over, however, neither child was willing to leave with her. With an argument unfolding in the lobby of the courthouse, Judge Eighmy walked over, introduced himself to the children, and told them to follow him to a conference room. Once there, he informed them that they had no choice but to leave with her. A youth counselor then reinforced the point by telling them that they "ha[d] to listen to the judge." The children would not budge, even after the judge mentioned that the other option was foster care.
Frustrated, Judge Eighmy had the children follow him again, this time to a waiting area in the courthouse's juvenile division. Once there, he told someone to "[k]eep an eye on" them to "make sure they [did not] go anywhere." After disappearing for a few minutes, he led them down a hallway to two holding cells. A second threat to place them in foster care made no difference, so he had a juvenile officer "lock them up." Before they entered the cells, the officer patted them down and ordered them to remove their socks and shoes. Judge Eighmy stood by as the officer locked the doors behind them.
Submit Your Articles to the Journal of Free Speech Law, Before You Circulate Them to the Law Reviews
We'll give you an answer within 14 days, and we can publish them within a few months, if you'd like.
Our peer-reviewed Journal of Free Speech Law, which is now five years old, has published over 150 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), Stuart Benjamin (Duke), Andrew Koppelman (Northwestern), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.)
The articles have been cited so far in 11 court cases, over 2000 articles (using Google Scholar counts), and at least 100 briefs. And note that all the articles have only had five years or less to attract these citations.
I expect that many authors are planning to submit articles on free speech to the usual law reviews when the submission cycle restarts in August. But if you submit exclusively to us before that, we will give you an answer within 14 days; and then if you'd like to have it published quickly, we can publish it in within a few months, if it's sufficiently clean and cite-checked by your research assistant. This means your article can be published by us, if it's accepted, almost a year (or more) before it would be published by the law journals.
Of course, also please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.
All submissions must be exclusive to us, but, again, you'll have an answer within 14 days, so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:
Interesting Criminal Case on Proving Intent to Cause Fear, Stemming from Confrontation at Protest
From State v. Elavsky, decided yesterday by Minnesota Court of Appeals Judge Kevin Ross, joined by Judge Elise Larson:
Neil Elavsky expressed his opposition to a social cause that was the subject of an outdoor fundraising event by posting leaflets on the windshields of cars near the event, and he confronted a supporter of the cause after he saw her removing his posted leaflets. He rushed toward her, demanded she return the removed leaflets to him, and grabbed them from her hand when she refused.
After the woman claimed that Elavsky scratched her finger when he snatched the leaflets from her, the state charged him with fifth-degree assault (fear), fifth-degree assault (harm), and disorderly conduct. A jury acquitted him of assault (harm) but found him guilty on the other charges, and the district court convicted him of assault (fear). Because the record contains insufficient circumstantial evidence to prove that Elavsky intended to cause the woman fear of immediate bodily harm, we reverse the assault conviction ….
Up to 5,000 supporters, including the employees of business sponsors, of the National Alliance of Mental Illness (NAMI) gathered at Minnehaha Park in Minneapolis one morning in September 2023 to participate in a fundraising march. An altercation at the event resulted in the state charging Neil Elavsky with fifth-degree assault (fear), fifth-degree assault (harm), and disorderly conduct. At Elavsky's trial, the jury heard evidence of the following account.
Claiming Video Was "Deepfake" Not Enough to Require Excluding It, Even Absent Evidence of Who Recorded It
"Apart from trying to cash in on the so-called 'liar's dividend,' Amyda's counsel had little to work with."
From State v. Amyda, decided Friday by the Iowa Supreme Court, in a unanimous opinion by Justice Edward Mansfield:
In this sexual abuse case, we are asked to decide whether the district court erred in admitting a video. The video graphically shows the defendant abusing the victim. However, there was no chain-of-custody evidence connecting the video to the defendant. The victim was asleep at the time and could not personally attest to the abuse shown in the video. And the defendant claimed "deepfake."
On our review, we conclude that the district court did not abuse its discretion in admitting the video. The video came to the victim's attention about a month after the defendant had been in the victim's bedroom. The video appears to be taken by the perpetrator of the abuse at close range using a cellphone. It shows the victim sleeping, but she testified in detail that she recognized her bedroom, her bed and furnishings, the clothing she had been wearing, her legs and genitalia, and the defendant's tattooed hand—all as they had been that evening.
Collectively, these circumstances were enough to admit the video. And the defendant's mere speculation that the video was a deepfake was not enough to bar its admission….
The court concluded that the video had been adequately authenticated:
