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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
No Pseudonymity in Crypto Scam Case, Despite Alleged Death Threat Against Plaintiff
From today's order by Magistrate Judge Kathryn Starnella in Y.S. v. Doe (D. Colo.):
This case involves a cryptocurrency transaction wherein Plaintiff transferred approximately $100,000.00 in digital currency to various unknown individuals, who allegedly later blocked Plaintiff's requested withdrawals and absconded with the remaining funds….
"Lawsuits are public events." "Courts are public institutions which exist for the public to serve the public interest" and "secret court proceedings are anathema to a free society." Therefore, "[o]rdinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials." The Federal Rules of Civil Procedure contemplate the naming of the parties. Rule 10(a) requires that a complaint "name all the parties," and Rule 17(a) requires the prosecution of an action "in the name of the real party in interest." …
Plaintiff asks the Court to proceed pseudonymously in this litigation because he received a death threat from an unidentified individual who is, at least in part, allegedly responsible for the underlying cryptocurrency scam. The text message exchange indicates this individual told Plaintiff, "I'm going to send a hitman after you!" and that "[he] just contacted the hitman, [the hitman] checked [Plaintiff's] address" and the hitman would "find [Plaintiff] before 12 o'clock tomorrow[.]" The individual further stated the hitman would kill Plaintiff, and informed Plaintiff he knew his home address. This exchange occurred after Plaintiff confronted the individual about the alleged fraudulent crypto scheme that gives rise to this suit…
Fourth Circuit (2-1) Upholds Ban on Teaching Any Person How to Make or Use Explosives While "Knowing" Such Person's Bad Intentions
From today's Fourth Circuit opinion in U.S. v. Arthur by Fourth Circuit Judge Steven Agee, joined by District Judge Roderick Young (E.D. Va.), the facts (though defendant's main challenge relates to the facial coverage of the statute):
Arthur [through his company, Tackleberry Solutions, offered] … "training," with the goal of "help[ing] the average person to be able to defend themselves" against "a tyrannical government of our own or an invading tyrannical government." He published videos and sold manuals online with titles including "Fatal Funnels, Wartime Tactics, Repelling the Assault," and "Quick Reaction Force, Modern Day Minutemen, Improvised Explosives." …
The FBI began investigating Arthur following a fatal incident in June 2020 involving one of his customers, Joshua Blessed. While searching Blessed's home in Richmond, Virginia, the FBI found fourteen live pipe bombs that were identical to those described in Arthur's manuals, as well as six manuals that he wrote.
Shortly thereafter, the FBI had a confidential informant—"Buckshot"—contact Arthur for training…. Eventually, Arthur invited Buckshot to join him for in-person training, for which Buckshot would be charged a fee. Buckshot accepted his invitation and, upon his arrival, explained to Arthur that "[the] ATF's been to my house…. [T]hey're probably coming back…. [W]hen they do, I want to be ready." … Arthur spent the next three hours teaching him how to fortify his residence against the returning federal agents.
[Among other things, Arthur] suggested mounting cans of Tannerite {a commercially available explosive, commonly used to make exploding targets for marksmanship purposes} around the property that could be detonated with a rifle shot. In addition to this "perimeter defense," Arthur suggested that it "wouldn't be a bad idea" for Buckshot to "put[ ] some [improvised explosive devices (IEDs)] right up around the doors [of the house]." He noted that he kept such an IED on his front porch.
Arthur also suggested "a setup called the Spiderweb," which he described as "a freaking death box." The "Spiderweb" involved blocking most entrances to Buckshot's house and then placing remotely operated explosives near the remaining entrances, along with a "sentry gun" that could be remotely fired. Arthur even went so far as to offer to "help [Buckshot] design [and] build it," and later showed Buckshot how to use a lightbulb to make a detonator ….Buckshot paid Arthur for the training, and the two agreed to stay in contact.
The majority concluded that the speech banned by the statute "fall[s] largely within one of the 'well-defined and narrowly limited classes of [unprotected] speech': speech integral to criminal conduct," because it was tantamount to aiding and abetting crime (rather than being protected "abstract advocacy" of crime "contemplated in [cases such as] Brandenburg v. Ohio):
Demand Justice Targets Democrats Over Judicial Nominees
The progressive advocacy group thinks voting for any Trump judicial nominees is inexcusable.
The New York Times reports that Demand Justice, a progressive activist group that has previously called for Democrats to expand the size of the Supreme Court, will be running ads against Democratic Senators who have voted in favor of some Trump judicial nominees.
The ads, part of an initial $1 million campaign which will begin to air on television and appear online on Wednesday, make the case that none of Mr. Trump's judicial appointments deserve bipartisan support because they are putting loyalty to the president above the Constitution.
The evidence that Demand Justice cites for that claim is that none of Mr. Trump's appointments to lifetime court seats have said in written answers to the Senate that Mr. Trump lost the 2020 election or that the attack on the Capitol on Jan. 6, 2021, amounted to an insurrection.
The three senators being targeted with the initial ad campaign are John Fetterman of Pennsylvania, Maggie Hassan of New Hampshire and Angus King of Maine, who is an independent but caucuses with Democrats. Notably, none of three are up for re-election in 2026. All are moderates and among the group who voted to end the government shutdown last month. . . .
Mr. Fetterman has voted to confirm one judge, Ms. Hassan has voted for three and Mr. King has voted for four, the group said.
According to the story, another progressive advocacy group (MoveOn) will also begin pressing Senate Democrats to vote against all of President Trump's judicial nominees.
The apparent aim of these campaigns is not to prevent the confirmation of any judges (as judicial nominees can be--and largely have been--confirmed on party-line votes), nor is it to punish Democratic Senators facing re-election. It is apparently designed merely to ensure that Democrats adopt party-line opposition to Trump's nominees.
If You Can Afford ChatGPT, You Can Afford Sanctions for Filing Motions with ChatGPT Hallucinations
From Jarrus v. Governor, decided yesterday by Judge F. Kay Behm (E.D. Mich.):
The court is cognizant that imposing a monetary sanction on plaintiffs who qualify for IFP status [based on inability to pay filing fees -EV] may be ineffective. However, the court also ordered Plaintiffs to explain how much, per month, they spend on "AI" subscriptions per month. Plaintiff Michael Jarrus explained that he pays approximately $20 per month in a subscription to "ChatGPT Plus." Over the course of 12 months, the evidence suggests that Plaintiff Michael Jarrus is at least able to afford a Chat GPT subscription of about $240. Absent proof that a monetary sanction will prove impossible to pay, the court will enter sanctions sufficient to deter similar conduct in the future….
Consistent with Magistrate Judge Patti's warning that each AI citation might incur a cost of $200 per citation, the court adopts that amount and imposes a fine of $300 per Plaintiff (a total of $600) for three misrepresented, AI-generated citations. Each Plaintiff [Michael Jarrus and his mother] shall, individually, be responsible for paying $300. These fines are due to the Clerk of Court and shall be paid in full by February 2, 2026. Failure to pay these amounts may result in dismissal of this action in its entirety or, if one Plaintiff pays their fine but not the other, of the nonpaying Plaintiff's claims for failure to comply….
If Plaintiffs file any future briefing in this case with even a single misrepresented, misquoted, or fictitious case that is caused by the use of generative "AI", this court will strongly consider any recommendation to dismiss this case for bad faith failure to comply with court orders, or revocation of Plaintiffs' IFP status, or in the alternative, it would not be clearly erroneous for the Magistrate Judge to strike or otherwise refuse to consider the merits of an entire briefing for the inclusion of a misrepresented, misquoted, or fictitious case.
More on the circumstances that led the court to be especially exercised here:
David Lat Interviews Pa. S. Ct. Justice David Wecht
A very interesting interview, on David Lat's Original Jurisdiction substack (for those who like text) and podcast (for those who prefer audio). An excerpt:
I recently noticed that although I've interviewed more than a dozen current and former judges, only two have sat on state courts (and by the time I interviewed them, those judges—Rolando Acosta and Debra Wong Yang—had left the bench). Put another way, I have not, until today, hosted a sitting state-court judge—a considerable omission, considering the significance of state courts. As noted by the National Center for State Courts, "State courts play a critical role in our democracy, handling about 96 percent of all legal cases in the United States."
I set out to remedy this gap—and was delighted when Justice David Wecht, a longtime friend, agreed to join me. He's a timely guest: last month, he and two of his colleagues were reelected to the Pennsylvania Supreme Court, for which I named them Judges of the Week. Why? Their court is one of the most important state courts in the country—for reasons I discussed with Justice Wecht on the episode.
In our conversation, we also covered the justice's interesting path to the Pennsylvania high court; why he believes young (and not-so-young) lawyers should get involved with their communities; certain unique features of the Pennsylvania Constitution, as well as its relationship to the U.S. Constitution; and, of course, his recent reelection to the Pennsylvania Supreme Court….
Free Speech Unmuted: Defamation Law in the Age of AI with Lyrissa Lidsky
My cohost Jane Bambauer and I are joined by Prof. Lyrissa Lidsky (Florida), who is also a co-reporter for the American Law Institute's Restatement (Third) of Torts: Defamation and Privacy.
What happens when 1970s defamation law collides with the Internet, social media, and AI? Lyrissa, my cohost Jane Bambauer, and I discuss explains how the law of libel and slander is being rewritten for the digital age; why the old line between libel and slander no longer makes sense; how Section 230 upended defamation doctrine; the future of New York Times v. Sullivan and related First Amendment doctrines; Large Libel Models (when Large Language Models meet libel law); and more.
Our past episodes:
Journal of Free Speech Law: "Free Speech and Incorporation: A Reassessment," by Ilan Wurman
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law; other papers from that symposium will be published shortly.
The article is here; the Introduction:
In a previous book, the author sought to establish that the likely original meaning of the Fourteenth Amendment's Privileges or Immunities Clause was that it guaranteed equality in fundamental rights under state law. The central provisions of the first section of the Amendment—due process of law, protection of the laws, and the privileges and immunities of citizenship—had long-established antebellum legal meanings. Due process of law primarily meant there had to be established law before one could be deprived of life, liberty, or property, and any violation of that established law had to be adjudicated according to known and established procedures. The protection of the laws was the other side of the coin: It was the legal protection the government had to extend against private invasions of private rights, principally judicial remedies and physical protection from violence. The protection of the laws was the heart of the social compact: Men exit the state of nature and give up some of their executive power and agree to obey the sovereign—they agree to give allegiance—in exchange for the sovereign's protection against private violence and private invasions of rights.
The antebellum legal background is crucially important for understanding the original meaning of the Amendment's privileges or immunities provision because it is that provision that therefore must accommodate the central goal of the Amendment's drafters of constitutionalizing the Civil Rights Act of 1866. That act guaranteed equality in civil rights under state law. Although many Republicans believed the act was justified under the Thirteenth Amendment's enforcement clause, many, including John Bingham, the principal author of the Fourteenth Amendment's first section, believed the Act to be unconstitutional. Moreover, it was necessary to enshrine the civil rights principle in the Constitution itself, lest the Democrats take over and repeal that legislation; Congress needed, in the words of Representative and future President James Garfield, "to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution."
Yet, if the due process and protection of the laws clauses in the Amendment had their historical legal meanings, they would not accomplish that central objective. Due process does not guarantee equal rights, only that whatever rights one has will not be taken away without established law and known procedures. Nor does equal protection of the law guarantee equal rights, but rather guarantees only that whatever rights one possesses will be equally protected against, say, Ku Klux Klan violence. That leaves only the privileges or immunities provision, whose language does the necessary work. The Reconstruction generation understood that civil rights defined and regulated under state law, including contract and property rights, were fundamental rights that all free governments had to secure. They were, in other words, the "privileges and immunities of citizens of the United States," shared by all citizens, though states may have regulated the rights differently. A state would "abridge" those rights by giving a lesser set of rights to a disfavored class.
Today in Supreme Court History: December 3, 1996
12/3/1996: Printz v. U.S. argued.
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Second Amendment Roundup: The U.S. Defends NFA Restrictions Lacking a Tax Nexus
The DOJ claims basis in the tax power and the commerce clause, and no Second Amendment problem.
As I previously explained in "The Zero Tax on NFA Firearms," serious constitutional issues arise about the constitutional validity of the registration and other requirements of the National Firearms Act as to the firearms that now have a $0 tax. They include short barreled shotguns (SBSs), short-barreled rifles (SBRs), silencers, and "any other weapons" (AOWs). Machineguns and destructive devices remain subject to the $200 making and transfer tax.
Three challenges are pending, Chris Brown v. ATF in the Eastern District of Missouri (see docket here), Silencer Shop Foundation v. ATF in the Northern District of Texas (see docket here), and Jensen v. ATF also in the Northern District of Texas (see docket here).
In Silencer Shop, in response to plaintiffs' motion for summary judgment, the United States has filed its opposition and cross-motion for summary judgment. The United States contends that the NFA regulations as applied to the zero-taxed firearms remain justified under Congress's tax power, as they support the collection of the special occupational taxes on firms engaged in the business of manufacturing and selling NFA firearms. They are also justified under the Commerce Clause, as the related activities in intrastate commerce substantially affect interstate commerce. Finally, DOJ argues that the Second Amendment does not protect NFA firearms, including suppressors, because they are "dangerous and unusual."
Article I Tax Power
As to the tax power, Sonzinsky (1937) upheld the NFA special occupational taxes (SOT) applicable to NFA businesses. That part of the NFA remains intact. The government argues that the zero-taxed making and transfer requirements of the NFA remain valid so the government may ensure that NFA businesses are paying their SOT.
But like any other regulated industry, the government knows whether applicable restrictions are followed by inspections, investigations, and other procedures. Under Title I of the Gun Control Act, firearm businesses are required to have licenses, and they are subject to inspection for compliance with regulations. Those engaged in the business of making or selling firearms without a license are prosecuted under the GCA. However, firearms bought by non-licensees from FFLs are not subject to licensing and are not required to be registered and regulated for eternity so that the government can keep track of those requiring a license. In fact, 18 U.S.C. § 926(a) of the Gun Control Act actually prohibits the registration of firearms that are sold to non-licensees.
A Second Round with William Barr on Litigation Over Interstate Pollution
Whatever the merits of climate tort suits (or lack thereof), the argument they are preempted does not hold up.
After I responded with a letter to the editor to William Barr's Wall Street Journal op-ed arguing that state-law-based tort suits against fossil fuel companies seeking redress for climate-related harms are preempted, Barr responded with a letter of his own, to which I offered a sur-reply. Here is a quick review of the argument, with some additional commentary.
In his initial op-ed, Barr argued that "disputes involving pollution that crosses state or international borders are the exclusive domain of federal law." My letter (and accompanying blog post) pointed out that this was wrong, noting the Supreme Court's decision in International Paper v. Ouellette in which the Court held that such suits are not preempted, but that common law nuisance suits over interstate pollution must apply the law of the source state, not that of the polluted plaintiff.
In his reply, Barr sought to argue that I "misread" Ouellette, writing:
In response to my op-ed on climate-change tort suits, he invokes International Paper Co. v. Ouellette (1987) to suggest that states may regulate out-of-state emissions unless doing so is "incompatible" with federal law. But Ouellette reinforces my position.
The court held that the Clean Water Act pre-empts states from applying their own pollution law to an out-of-state source, since subjecting one source to multiple state laws would create a "chaotic confrontation" and undermine the federal regulatory structure.
What Barr's letter elides is that while Oullette prevents a state or its residents from applying their state's law to out-of-state polluters, it expressly held that nuisance suits over interstate pollution are not preempted, but may continue. As I noted in my sur-reply letter:
While he is correct that the court in International Paper Co. v. Ouellette (1987) "held that the Clean Water Act pre-empts states from applying their own pollution law to an out-of-state source," it further held that "nothing" in federal law precluded "aggrieved individuals from bringing a nuisance claim pursuant to the law of the source State."
In other words, such suits may proceed and aren't pre-empted by federal law. This is precisely what happened in Ouellette. After the court's decision, the case proceeded to trial on remand, the plaintiffs presented their case and International Paper settled, agreeing to pay substantial compensation.
So there is no mistake, Ouellette rejected Barr's initial claim that "disputes involving pollution that crosses state or international borders are the exclusive domain of federal law." It did not preempt such suits, but rather set the terms under which such suits can proceed. The Ouellette case itself is a case in point, as the plaintiffs were allowed to pursue their claims against interstate air and water pollution on remand.
The point of Barr's initial op-ed was to encourage the Supreme Court to grant certiorari in Suncor Energy v. County Commissioners of Boulder County, the most recent state-law-based climate tort suit brought before the Court.
Thus far, the justices have shown little interest in wading into climate tort litigation, despite repeated entreaties to do so. I suspect one reason for this is the fundamental weakness of the substantive argument, combined with the preliminary posture on which these cases have been brought. While there is an ostensible circuit split, insofar as the U.S. Court of Appeals for the Second Circuit swallowed the preemption arguments and several state courts have not, this has not yet been enough to convince four justices to support certiorari.
Even if the justices ultimately vote to grant cert, precluding state climate litigation altogether will remain a heavy lift under current law. Insofar as Congress has the constitutional authority to preempt litigation of this sort, it has not enacted any law that would do so, and I will be surprised if the Court ultimately says otherwise.
As my second letter concluded:
It is the job of the judiciary to say what the law is, not what it should be. If Mr. Barr believes state-law-based climate litigation should be pre-empted, he should encourage Congress to enact a law that does so.
* * *
For more on the subject, here are my prior posts on climate-related tort litigation:
- Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted, Oct. 27, 2021;
- Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022;
- Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023;
- Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023;
- D.C. Circuit Rejects Oil Company Attempt to Remove District's Climate Suit to Federal Court, Dec. 19, 2023;
- William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023;
- Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024;
- Are State Law Climate Change Tort Suits Preempted by Federal Law?, May 3, 2024;
- Supreme Court Denies Certiorari in Climate Tort Suits, Jan. 13, 2025;
- Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits, Mar. 10, 2025;
- William Barr Discovers the Economics of Tort Law (and Misrepresents the Law Governing Interstate Pollution), Nov. 3, 2025;
- Placing Climate Tort Litigation in Context (Updated), Nov. 11, 2025.
Federal Trade Commission Staff Endorses Proposal to End American Bar Association Monopoly on Law School Accreditation
FTC staff support the proposal by the Texas Supreme Court to allow for alternative means of accreditation.
The American Bar Association's de facto monopoly on law school accreditation took another hit this week as the directors of the Federal Trade Commission's Office of Policy Planning and Bureau of Competition endorsed a proposal by the Texas Supreme Court to allow alternative means of accreditation.
This endorsement came in a nine-page letter to the Texas Supreme Court released with the approval of both currently serving FTC Commissioners.
The letter reads in part:
we endorse the Proposed Amendment and commend that it would eliminate the current rule's delegation of authority to the American Bar Association (ABA). The ABA should not serve as a gatekeeper to a critical aspect of admission to the legal profession. Such control by the ABA is inimical to the principles on which competition law rest. The ABA is dominated by practicing attorneys, who have strong interests in limiting competition for legal services. As such, the current rule raises serious competitive risks by so broadly delegating to the ABA the state's authority to set eligibility requirements for admission to the Texas bar. It effectively gives the ABA, an organization that has previously flouted the rule of law it purports to promote, the ability to exclude market participants who would compete with its members. We encourage the Court to reclaim its authority to expand opportunities for qualified individuals to provide legal services to the Texas public as envisioned by the Proposed Amendment.
It concludes:
The ABA should no longer have "the final say on whether a law school's graduates are eligible to sit for the Texas bar exam."49 The ABA's standards for accreditation appear to go far beyond what is reasonably necessary to assure adequate preparation for the practice of law in Texas, increasing the cost of a legal education. The current rule therefore likely causes Texas to forgo admitting many potentially qualified lawyers who could provide needed legal services to the Texas public.
The Proposed Amendment is an important step in weakening the ABA's enduring monopoly and resulting power to impose costly, overly burdensome law school accreditation requirements. It is no coincidence that in its 1995 lawsuit challenging the ABA's anticompetitive conduct, the DOJ stressed that the ABA's power over law schools comes, in part, from state mandates: "ABA approval is critical to the successful operation of a law school" because the "bar admission rules in over 40 States require graduation from an ABA-approved law school in order to satisfy the legal education requirement for taking the bar examination."50 Thirty years later, little has changed yet. The Proposed Amendment is a laudable first step. We commend the Texas Supreme Court for its initiative to disrupt the anticompetitive status quo and encourage other states to take similar steps.
FTC Chairman Andrew Ferguson also commented on the proposal in this Twitter thread.
I discussed the potential end of the ABA's accreditation monopoly here. Derek Muller analyzed the Texas proposal here. Civitas Outlook sponsored a symposium on the Texas Supreme Court's proposal here.
Solicitor General Urges Review of FIFRA Preemption
The Department of Justice sides with Monsanto on whether federal law preempts state-law duty-to-warn suits against pesticide manufacturers, setting up an important test of the Court's view of federal preemption.
Earlier this year the Supreme Court called for the views of the Solicitor General on whether it should grant certiorari in Monsanto v. Durnell, which presents the question whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state-law-based "duty to warn" suits against manufacturers of pesticides registered by the Environmental Protection Agency (EPA). The case arises out of litigation over Monsanto's Roundup pesticide and its active ingredient, glyphosate.
Yesterday, the Solicitor General filed its brief, urging the Court to grant certiorari in Durnell. The brief supports Monsanto's position both on the merits (concluding that FIFRA registration does preempt such claims) and that there is a circuit split warranting the Court's review. While the latter point may be more important to the justices (there is a split among the U.S. Courts of Appeals for the Ninth, Eleventh, and Third Circuits), the bulk of the brief is devoted to explaining why the Justice Department believes FIFRA preempts such claims. Should the Court grant certiorari, it is fairly clear what position the Solicitor General's office will take.
The brief is consistent with the the Trump Administration's pro-preemption perspective in other environmental contexts, such as climate litigation. On the other hand, it may conflict with the preferences of MAHA-types within the Administration. Secretary of Health and Human Services Robert F. Kennedy Jr. has both been a critic of Roundup and has supported litigation against Monsanto.
Assuming certiorari is granted in this case (and I suspect it is likely), it will provide additional clarity on the current Court's view of preemption questions. While it is common to think that conservative justices are likely to be pro-preemption because they are generally supportive of the business community, the Court's current conservatives are actually split on such questions, largely due to federalism concerns (see, e.g., the 3-3-3 split in Virginia Uranium). This is one reason I have argued that, while Trump's appointments to the Court have made it more conservative, it is not at all clear that they have made the Court more "pro-business."
Geese, Ganders, and Pterodactyls: Amicus Brief in Fifth Circuit En Banc Rehearing of West Texas A&M Drag Ban Case
From a brief filed yesterday by Joshua J. Bennett (Baker & Hostetler LLP) on behalf of Dale Carpenter, the Cato Institute, and me in Spectrum WT v. Wendler (for the panel majority and dissent, see here):
Summary of Argument
When the government operates a place or program that allows a wide range of private speech, it may not discriminate among speakers or groups based on their viewpoints. That is true even when the place or program is a limited public forum or nonpublic forum rather than a traditional or designated public forum. The panel majority correctly held that (1) the canceled drag show was speech protected by the First Amendment, and (2) President Wendler violated the First Amendment when he cited the show's "objectionable message" (alleged sexism) to justify its cancelation and without trying to satisfy strict scrutiny. That second conclusion holds true no matter how the forum (Legacy Hall) is classified, whether as a designated public forum, as the panel held; a limited public forum (as the panel dissent argues, Spectrum WT v. Wendler, 151 F.4th 714, 738 (5th Cir. 2025) (Ho, J. dissenting)); or even a nonpublic forum. Viewpoint discrimination is presumptively unconstitutional in each such forum.
Not even the panel dissent takes issue with the panel majority's first conclusion. Citing the Supreme Court's decision in Christian Legal Society v. Martinez, 561 U.S. 661 (2010) ("CLS"), the dissent instead argues for application of the Rule of Goose and Gander. Because, in the dissent's view, CLS permits universities to expel Christian legal societies from limited public fora on campus (if those societies won't agree to open their membership to all comers in exchange for the university's subsidy), "a university may limit use of its facilities to protect the dignity and safety of women," such as by canceling drag shows and thus their "disrespectful message." Spectrum WT v. Wendler, 151 F.4th 714, 739 (5th Cir. 2025) (Ho, J. dissenting).
Yet "[w]hat is good for the goose, is good for the gander—but not necessarily a pterodactyl." United States v. Perkins, 99 F.4th 804, 820 (5th Cir. 2024). Here, the government's confessed viewpoint discrimination is more pterodactyl than gander to CLS's goose. The CLS majority upheld the open-to-all-comers requirement on the grounds that it was a content-neutral restriction that applied to all groups and did not discriminate based on viewpoint. That holding cannot justify the viewpoint-based discrimination that occurred here. The en banc court should therefore affirm the panel majority.
Argument
[I.] Viewpoint Discrimination Is Forbidden Even in Limited Public Fora and Nonpublic Fora.
Journal of Free Speech Law: "What Did Gitlow Do?," by James Stern
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law; other papers from that symposium will be published here in the coming weeks.
The article is here; the Introduction:
Dissenting in Gitlow v. New York, Justice Oliver Wendell Holmes remarked that while the "general principle of free speech" is part of the liberty guaranteed by the Fourteenth Amendment's Due Process Clause, "perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States." The suggestion that the Constitution would constrain states less than the federal government in the area of free speech would have been consistent with an understanding of due process as an outer backstop, protecting against action so far afield that it "passes the bounds of reason and assumes the character of a merely arbitrary fiat." Such an understanding might have helped reconcile the existence of federal free speech limitations on states with the then-widely held view that the Fourteenth Amendment did not subject the states to the first eight amendments to the Constitution as such.
The Supreme Court never adopted Holmes's suggestion. But to say only that would be misleading: Far from flirting with a more deferential attitude to freedom of speech in state cases, the Supreme Court from the beginning applied free speech principles to the states with substantially greater vigor than to the restrictions at the federal level.
Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights does far more to constrain states than the federal government.
Today in Supreme Court History: December 2, 1907
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