The Volokh Conspiracy Archive

ABC is challenging the Federal Communications Commission, arguing that the agency is using its licensing authority to punish the network for its coverage and political viewpoint. Jane and I are joined by Duke law professor Stuart Benjamin to examine the lawsuit, the FCC's unusually broad "public interest" power, and the special rules that have long governed broadcast speech. We discuss allegations of retaliation and pretext, the chilling effect of costly government investigations, and whether this dispute could prompt the Supreme Court to reconsider broadcasters' second-class status under the First Amendment.

Also check out our past episodes:

From De Ford v. Koutoulas, decided last month by Judge Paul Byron (M.D. Fla.) but just posted on Westlaw, which has to do with a class action over alleged misstatements in the sale of the Let's Go Brandon cryptocurrency (LGBCoin)

Further, Defendants Koutoulas and LGBCoin LTD submitted fabricated authority across at least eight separate filings …. Plaintiffs have catalogued more than forty such instances in a spreadsheet attached to their Motion. Federal courts around the country are taking a firm stance against AI-hallucinated case citations. This is just one of Defendant Koutoulas's many sanctionable acts, including terminating sanctions.

Recall that the "Let's Go Brandon" phenomenon emerged from an NBC sports reporter hearing fans at a NASCAR race chanting "Fuck Joe Biden," and misunderstanding this as "Let's Go Brandon" (the winner of the race was named Brandon Brown).

Last night I included a throwaway line my post about a possible Jodi Kantor reveal from this past term. It has been on my mind for some time. Where are the leaks? We are already in September.

Well, a few hours later, Kantor published an expose, but there is very little new here. In fact, it's all old stuff.

It seems after Justice Scalia passed, the other Justices agreed to restrict the publication of their papers until after each member who was involved in a case dies. The bigger reveal is that Justice Scalia made no plans for his papers:

In early 2016, Justice Antonin Scalia died suddenly of a heart attack on a Texas ranch, sending his Supreme Court colleagues into a period of grief and uncertainty. Behind closed doors, they had to contend with another piece of unsettling news.

Justice Scalia, the leading light of the conservative legal movement, had left no plans for his working papers, according to five people aware of the situation. For a Supreme Court justice, this was the equivalent of dying without a will. With no instructions for creating an archive or opening it to the public, the definitive inside account of his work — and the court's — could be lost or emerge with uncomfortable speed.

So following his death, his colleagues entered into private negotiations to try to head off any such situation in the future.

In a series of memos and conference meetings, Chief Justice John G. Roberts Jr. led the surviving justices in discussions about imposing a more uniform seal for their own papers, according to several people with knowledge of the process.

The absence of instructions from Justice Scalia and ensuing confidential conversations, which have not previously been reported, help explain why the nation's highest court can be so difficult to understand. The ultimate record of the court's work is considered the personal property of each justice, to dispose of or share as he or she chooses. And many of the justices have valued confidentiality over transparency and chosen to postpone scrutiny of their work for years to come.

I think this tells us that Justice Scalia did not think he was anywhere close to death. Certainly Scalia wouldn't leave something like this to chance.

It is also relevant that Kantor continues to mine the October 2015 Term. Her previous piece on the shadow papers came from the same term. What else does her source(s) from that term have?

My latest column in Civitas Outlook previews the final days of the American Bar Association. The once-great organization is entering the end game.

When the history of the American Bar Association's downfall is written, one theme will recur: it didn't have to end this way. By the 1960s, nearly half of the lawyers in the United States were members of the ABA. Congress, Presidents, and the courts consulted the ABA closely as a trusted advisor on all legal matters. Yet, tragically, that trust was squandered when the ABA was captured by the left. Instead of serving as a trade group for lawyers, the ABA became just another left-wing advocacy group. As membership declined, the ABA could have arrested its progressive lurch, but instead accelerated in the wrong direction. The group took liberal positions on abortion, affirmative action, national security, and other controversial issues that had nothing to do with the legal profession. The ABA stopped being relevant decades ago. All that is left is a hollow husk of a once-great entity. Now, the Trump Administration is poised to strike the mortal blow by eliminating the ABA Education Council's power over law school accreditation. Things didn't have to end this way, but the ABA brought this endgame onto itself.

I also relay my own personal role in this process, which I had only partly made public before.

The flags in the classroom, from the Second Circuit opinion.

A short excerpt from the longish Dole v. Connetquot Central School Dist., decided yesterday by Second Circuit Judge Alison Nathan, joined by Judges Michael Park and Maria Araújo Kahn:

Christopher Dolce, Sarah Ecke, and Shinaide McAleavey-Polley are teachers at Connetquot Central High School and "open members of the LGBTQ+ community." Connetquot Central School District officials ordered Ecke to take down two pride flags that hung on the walls of her math classroom. They also told Dolce and McAleavey-Polley that they could not place pride flag stickers on their classroom doors….

{Under Garcetti v. Ceballos (2006), and its progeny, when public employees' speech "owes its existence" to their "professional responsibilities," the Government—their employer—can control the content of that speech without implicating their First Amendment rights.} … [A] public high school teacher's classroom wall decorations are speech that "owes its existence" to their "professional responsibilities." After all, teachers decorate their classroom walls as part of their duty to create physical classroom spaces conducive to the curricula they are assigned to teach. Those decorations are thus the Government's speech, and the First Amendment does not apply to them….

From MacDonald v. President of N.J. State Bd. of Med. Examiners, decided yesterday by Judge Thomas Hardiman, joined by Justice Thomas Ambro:

New Jersey requires any doctor who wishes to practice telemedicine with a patient located in the state to first obtain a license from its Board of Medical Examiners….

Shannon MacDonald, M.D., is a radiation oncologist at Massachusetts General Hospital who specializes in treating rare pediatric cancers. She lives in Massachusetts and is licensed to practice medicine there. Dr. MacDonald used proton therapy to treat her patient J.A. for a rare childhood cancer when he was 18 months old. J.A. requires annual scans to monitor for anomalies, as the cancer often recurs. An anomaly was detected previously when J.A. lived in New York, and Dr. MacDonald was able to provide a telemedicine consultation to address the matter. J.A. is now a teenager living in New Jersey. He and his father, Michael Abell, would like to consult virtually with Dr. MacDonald in the future if any new anomalies appear on his annual scans.

Paul Gardner, M.D., is a neurosurgeon at the University of Pittsburgh Medical Center and an expert in skull base surgery. He lives in Pennsylvania and is licensed there. He too would like to speak with his patients located in New Jersey to "discuss treatment options" without requiring them to incur travel expenses. Hank Jennings is a New Jersey resident who underwent surgery and treatment by specialists in Pittsburgh when he was nineteen. Like J.A., Jennings needs periodic follow-up consultations and would like to do them via telemedicine to mitigate financial and time burdens….

The court concluded that the law was a content-based speech restriction, citing the Supreme Court's decision earlier this year in Chiles v. Salazar (which struck down the Colorado ban on conversion therapy, as applied to therapy that consists entirely of speech). But it concluded that such laws nonetheless didn't have to pass the "strict scrutiny" usually required for such content-based speech restrictions, because they were "consistent with a long and robust regulatory tradition" of professional licensing:

From Tyson-Phipps v. Rubio, decided yesterday by Magistrate Judge Gabriel Gorenstein (S.D.N.Y.):

[The Complaint] alleges that defendant's decision to discipline plaintiff {a Diplomatic Security Special Agent employed by the United States Department of State} "for carrying a licensed personal handgun in a private hotel room in an open carry state," was in violation of the Second Amendment, rendering this decision "not in accordance with law" and "contrary to constitutional right" under the [Administrative Procedure Act]. As we have previously explained to plaintiff, however, "just as a private employer engaged in security would obviously be justified in barring its employees from carrying their personal handguns on the job" without violating the Second Amendment, "so too may the Government here."

New York State Rifle & Pistol Ass'n, Inc. v. Bruen (2022) … has no application here. Defendant's decision to discipline plaintiff was merely "a restriction placed by the Government on one of its employees"—not, as in Bruen, an instance of "the Government exercising its power to regulate or license as a lawmaker."

Seems correct to me. For more on how the normal Second Amendment rules, like the normal First and Fourth Amendment rules, generally don't apply to government employees on the job, see p. 1962 of Implementing the Right to Keep and Bear Arms After Bruen.

9/1/1823: Justice Smith Thompson takes judicial oath.

Read the Chief Justice's six-page dissent in the ballroom case. Does something stand out? There is no reference to the fact that it is a dissent until page four. Virtually every dissent I've ever read indicates at the outset where the dissenting Justices depart from the majority. But the Chief Justice jumps straight into things, acting as if he was speaking for the Court. The first two pages focus entirely on the merits, an issue that the majority did not even address. Then Roberts spends another two pages talking about standing. Only halfway-through page four does he refer to "the Court." And there are no citations to specific page-ranges. Just, "the Court."

By contrast, the per curiam opinion (by Justice Kavanaugh in my mind) includes four pincites to Roberts's dissenting opinion. This clearly looks like a conventional majority opinion responding to a dissent.

Perhaps Roberts was in denial that he was in dissent--it happens so rarely. But I have another theory. I get the vibe that Roberts's dissent was an opinion written so it could easily be converted from a dissent to a controlling opinion. How easy would it be to replace "the Court" with "the dissent"? This was the Chief Justice's tango in the ballroom case.

Think about the timing. The Chief Justice did not enter an administrative stay on August 13 when the emergency application was filed. With the benefit of hindsight, we knew he was not inclined to rule for the government, so he wanted to create pressure to rule on the matter quickly.

Roberts is a fast writer. He probably wrote his six-page opinion before lunch. He probably finished it before the briefing even concluded.

Yet, on August 21, when the D.C. Circuit's stay was about to expire, the Chief Justice simply entered an administrative stay. At that point, there were squarely five votes to stay the D.C. Circuit. Why did't the Chief Justice just drop his dissent, along with the per curiam?

Ultimately, ten days elapsed from the administrative stay on August 21 until the per curiam decision was issued on August 31. There wasn't much back-and-forth between the opinions. And there was no Kafkaesque dissent from Justice Jackson.

My theory is that the Chief was trying to flip Justice Barrett's vote. We know the Chief was trying to change Barrett until the bitter end on Dobbs even after a deranged man tried to murder Justice Kavanaugh. At heart, Roberts is still an advocate, trying to get one more vote. But friend don't let friends give the Chief a fifth vote.

I am quietly dreading reporting from Jodi Kantor about behind-the-scenes action from OT 2025. Maybe the ballroom case will take a twirl.

In 1958, the great Judge Learned Hand ended a series of lectures at Harvard Law School by reflecting on his professors when he was a law student there in the 1890s. It remains my favorite passage about law professors, and a vision for us in the profession to aspire to meet. Judge Hand wrote:

More years ago than I like now to remember I sat in this building and listened to — yes, more than that, was dissected by — men all but one of whom are now dead. What I got from them was not alone the Rule in Shelley's case, or what was one's duty to an invited person — as we then called him — or what law determined whether a contract has been made, or how inadequate was the common law of partnership before the advent of Cory on Accounts, or in what jurisdictions a corporation is "present." True, I did get those so far as I was able to absorb them, but I got much more. I carried away the impress of a band of devoted scholars; patient, considerate, courteous and kindly, whom nothing could daunt and nothing could bribe. The memory of those men has been with me ever since. Again and again they have helped me when the labor seemed heavy, the task seemed trivial, and the confusion seemed indecipherable. From them I learned that it is as craftsmen that we get our satisfactions and our pay. In the universe of truth they lived by the sword; they asked no quarter of absolutes and they gave none. Go ye and do likewise.

So, so good.

My understanding is that Learned Hand had taken classes from a bunch of professors who are still well known names in the law: Christopher Columbus Langdell, James Barr Ames, John Chipman Gray, James Bradley Thayer, and Samuel Williston among them. His former professor who was still alive at the time of Hand's lecture was Williston, who died in 1963 at the age of 101. Judge Hand himself passed in 1961, at the age of 89.

I often write that my favorite writings by Chief Justice Roberts are when he's in dissent. These are the rare instances when I think he actually believes what he is writing. But the opposite seems true in National Park Service v. National Trust for Historic Preservation in the United States. The Court, by a 5-4 vote, stayed the injunction, thus allowing construction of the East Wing ballroom/military complex. The majority opinion was per curiam, though as I'll explain below, it is almost certainly a Kavanaugh production. Chief Justice Roberts was in dissent, joined by the Court's three liberals. Based on my quick search, this lineup appeared only one other time in NIH v. APHA.

At this point, John Roberts is utterly unrecognizable. This was the person that George W. Bush nominated to the Supreme Court because of his robust understanding of presidential power in the national security context, yet Roberts dismissed the government's national security concerns in a perfunctory footnote. This was the same justice who bitterly dissented in Massachusetts v. EPA, finding that the broad theory of standing would inject the judiciary into political disputes, but Roberts allowed a person walking past the White House to halt the construction of a military facility. This was a Justice who upheld the arrest of a D.C. tween who ate a single french fry on the metro, but extolled a D.C. busybody who walked past the metro as "deeply committed" to preserving the nation's capital.

This sentence from Justice Kavanaugh's opinion is the sort of thing that Chief Justice Roberts would mutter in his sleep:

Meanwhile, on the other side of the ledger and against these harms, the only harm the Trust claims is the offense one of its members will suffer from having to view a structure of the "scale," "height," and "massing" the government intends. Id., at 75a. These harms and equities are not nearly in equipoise.

At this point, the Chief Justice is a shadow of his former self. This was a case where Roberts determined that Trump should not win, so he did not win. In the end, all the Chief could do is wax about Winston Churchill in his dissent. Well, I have a far more appropriate quotation for the Chief's tenure: "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

I would hope to see many more Roberts dissents next term. As I wrote, "Friends don't let friends be the chief justice's fifth vote." Find a way to get to five without the Chief.

If Chief Justice Roberts is the loser here, then Justice Kavanaugh is the winner. I am fairly confident that Justice Kavanaugh wrote the majority opinion. He has become the Court's stickler for standing. I think he also wrote the jurisdictional analysis in Trump v. California.

And as I predicted, the Court rejected the D.C. Circuit's "aesthetic" injury precedents. Justice Kavanaugh leads off with the critical line:

This Court has not found standing in circumstances like these before. To the contrary, we have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.

Even if the D.C. Circuit found standing, the Supreme Court did not. I suspect that Justice Kavanaugh labored under the D.C. Circuit's terrible standing decisions for about two decades. He has now scaled them back. I hope the D.C. Circuit takes this ruling to heart, and realizes that offended observers do not state an Article III injury. Indeed, this ruling should spill over to the Establishment Clause context, as well as Havens Realty standing. People who object to a Ten Commandments display have nothing more than "offense, disagreement, or distaste."

More generally, there is something satisfying about this ruling in light of Alliance for Hippocratic Medicine. Those opposing abortion were denied "aesthetic" injury standing to see babies born. It only follows that architecture wonks likewise lack "aesthetic" injury standing to see buildings. Whatever the rules are, they should be applied equally.

I consider Justice Barrett to be the leading proceduralist on the Court. Again, she found that no one had standing in Murthy, Alliance for Hippocratic Medicine, California v. Texas, and every other case Texas brought to the Court. Barrett clerked for Justice Scalia, so likely has thought about Lujan more than anyone else on the bench. If she thinks Justice Kavanaugh has the better reading of Lujan, then I'm with Barrett. This is the key sentence:

Proceeding to reject the plaintiffs' claim to standing, Lujan stressed that a cognizable interest is a necessary component of standing but not a sufficient one: Article III "requires more than an injury to a cognizable interest." 504 U. S., at 563 (internal quotation marks omitted).

At bottom, the D.C. Circuit extended Lujan in improper ways, and the Supreme Court has now yelled "stop it."

From the unsigned majority opinion today in National Park Serv. v. National Trust for Historic Preservation:

In October 2025, the federal government started a project to replace the East Wing of the White House. The first phase involved the demolition of the existing East Wing, something the government completed in December 2025. The next phase, currently ongoing, involves the construction of a new East Wing, including a below-ground military installation and an above-ground ballroom.

The National Trust for Historic Preservation in the United States (Trust) filed a lawsuit in federal district court challenging various aspects of the project…. On March 31, 2026, the district court granted the Trust's motion [to halt ongoing construction] and issued a preliminary injunction … [that] enjoined any further construction above ground, except as "strictly necessary" to protect the White House, the President, and his staff…. On August 7, 2026, the court of appeals … upheld the district court's injunction….

Confronted with an imminent order requiring it to substantially halt its ongoing construction activities, the government filed a motion in this Court seeking a stay of the district court's injunction pending a forthcoming petition for a writ of certiorari and any further proceedings in this Court….

Beginning with the merits, the government is likely to prevail in showing that the Trust lacks standing to challenge the East Wing project…. To establish its standing to bring this case, the Trust relies on a declaration from a single [one] of its members, Alison K. Hoagland. Hoagland says that she lives in Washington, D. C., and expects to visit the neighborhood around the White House "about once a month." She asserts that having to view the finished ballroom the government is constructing would cause her to suffer "injuries" to her "aesthetic, cultural, and historical interests" because she finds the "scale," "height," and "massing" of the government's design distasteful. On the strength of that declaration, the Trust contends, it has Article III standing to challenge the East Wing project.

Startpage is a search engine that promotes itself as protecting user privacy; it gathers results via Google and Bing, but:

We submit your search to our search partners on your behalf. They never see your personal information.

You receive results that aren't based on your personal history…. We don't store your searches. We don't build profiles. Once your search is complete, it's gone.

It apparently gets over 2 million visits per day; my friend Adam Holland regularly uses it, which is how I learned about the missing results in some Startpage searches.

Here is one example, the entirety of a Startpage search for solvera "chris dinota" (I kept the white space at the bottom to show these were the only two returned results); I use this particular query because it's closely related to the original query Adam used:

And here is a Google search for solvera "chris dinota" (done using a private window, to diminish any context-based effects on the search results):

The case is a decision by Judge Susan Illston (N.D. Cal.) Friday in Doe v. Deutsche Lufthansa AG (see also a separate post this morning about the substantive issues in the case). A quick summary of the facts: In 2021, Doe and Roe—a gay couple living in Saudi Arabia, who were married in California in 2013—were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riyadh airport (Jamshed) that they were married under U.S. law, and the employee allegedly disclosed that publicly; they also allege that the information about the marriage was conveyed to Saudi authorities.

In 2021, Doe and Roe were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riyadh airport (Jamshed) that they were married under U.S. law, and the employee allegedly said that publicly; they also allege that the information about the marriage was conveyed to Saudi authorities.

Doe and Roe sued, alleging that Jamshed's statements were actionable as disclosure of private facts, as intentional infliction of emotional distress, and other theories. Friday, Judge Illston concluded that California's anti-SLAPP statute—which provides various protections for defendants in lawsuits based on speech on public matters—doesn't apply to the case:

[1.] First, the facts from an earlier decision in Doe v. Deutsche Lufthansa AG:

John Doe and Robert Roe are a gay couple who have been in a "committed, but discreet," relationship for 33 years, and who were married in California in 2013. Doe is a United States citizen and California resident who lives in Riyadh, Saudi Arabia most of the year, where he works for a company as legal counsel. Roe is a Saudi Arabian citizen who, until May 2021, was living full-time in Riyadh and working as a result estate [real estate? -EV] investor. Since 1989, Doe and Roe lived together in Saudi Arabia, but they were forced to keep their relationship and sexual orientation hidden because homosexuality has been treated as a capital offense in Saudi Arabia. "Living very carefully, they successfully kept their 33-year relationship a secret from the government, strangers, employers, friends, and family, alike."

In 2021, Doe and Roe were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riyadh airport (Jamshed) that they were married under U.S. law, and the employee allegedly said that publicly; they also allege that the information about the marriage was conveyed to Saudi authorities.

[2.] Now, Judge Susan Illston's analysis from this past Friday as to why California law should apply to the case:

Saudi Arabian law is based on religious Sharia law and … homosexuality is a crime in Saudia Arabia, punishable in various ways including imprisonment and the death penalty, … [so] plaintiffs have no recourse under Saudi Arabian law…. In contrast, California's strong public policy supporting gay rights and gay marriage, and prohibiting discrimination based upon sexual orientation, is reflected in the California Constitution, numerous California statutes, and decisions by the California Supreme Court….

8/31/1995: Students at Santa Fe Independent School District voted to allow a student to say a prayer at football games. In Santa Fe Independent School Dist. v. Doe (2000), the Supreme Court declared this prayer unconstitutional.

The Volokh Conspiracy

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The Biggest Revelation In Recent NYT Expose Is Justice Scalia Wasn't Planning on Dying

New in Civitas Outlook: "The End Is Near for the American Bar Association"

School Can Control What Flags Schoolteachers Hang on Classroom Walls

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No Second Amendment Right to Carry Gun on Your Government Job

Today in Supreme Court History: September 1, 1823

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Making Sense Of The Chief Justice's Tango In The Ballroom Case

Learned Hand's Reflections On His Professors

Strictly Ballroom: Justice Kavanaugh Defeats Chief Justice Roberts

Supreme Court Allows White House Ballroom Construction to Go Forward, at Least for Now

Startpage Search Engine Output Omitting Certain Search Results?

Anti-SLAPP Law Doesn't Apply to Foreign Speech by Foreigners

Lawsuit Over Outing of Gay Saudi Residents by Lufthansa in Saudi Arabia Can Proceed

Today in Supreme Court History: August 31, 1995

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