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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
"And Then … Nothing Happened, in the Most Brutal Way Possible"
Ed Morrissey (Hot Air) opines on Prince Harry's and Meghan Markle's return to England. I know nothing about the subject, and care even less. But I loved the line.
Suit Over Defendant Allegedly Yanking on Israeli Flag Plaintiff Had Tied Around Neck, Choking Her, Can Go Forward
Excerpts from Tuesday's long opinion by Judge Trevor McFadden (D.D.C.) in Sumrall v. Ali:
[1.] Kimmara Sumrall and Janine Ali stand on dueling sides of a longtime conflict. Sumrall supports Israel as an expression of her Jewish identity. Ali opposes many of Israel's policies, especially in Gaza. Sumrall alleges that Ali crossed from political dissent into discriminatory violence when she attacked Sumrall at a protest. After an evidentiary hearing, this Court granted Sumrall a preliminary injunction in the form of a narrow stay-away order against Ali. Ali now moves to dismiss Sumrall's Amended Complaint and to reconsider the preliminary injunction.
The Court denies Ali's motion to dismiss on all counts except Sumrall's claim for intentional infliction of emotional distress. Sumrall states a plausible claim under 42 U.S.C. § 1981, which covers discriminatory private violence like the battery that Sumrall alleges. All but one of Sumrall's claims under District of Columbia law also survive. Only her action for intentional infliction of emotional distress fails to clear that tort's high bar….
[2.] [According to the Complaint,] Sumrall is "a Jewish-American who feels and publicly expresses a deep affinity for Israel, her ancestral homeland." In November 2024, she took part in a "pro-Israel demonstration" at the Dirksen Senate Office Building. At that demonstration, Sumrall "wore an Israeli flag, tied at her neck, as a cape."
Ali was also there that day, attending "an anti-Israel demonstration." "When [Sumrall] was isolated from her group, [Ali] approached [Sumrall] from behind … and yanked on [Sumrall's] Israel flag, having the harmful effect of briefly choking [Sumrall] and causing her pain and disorientation." Sumrall then saw Ali "walking away from her" and "yelled for the police to address the situation." U.S. Capitol Police Officer Reed Bonney arrested Ali over her objection that "all [she] did was grab it." …
[3.] Section 1981's text declares its broad reach. Recall that the statute grants all persons "the same right … to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." … [It does not] contain a state action requirement, whether for the Equal Benefit Clause or any of its other protections. The statute instead spells out that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination." Among those is the "right … to the full and equal benefit of all laws and proceedings for the security of persons and property." § 1981(a). Like the other § 1981 rights, then, the "equal benefit" right is protected against private action that would infringe someone's "security" or "property" on account of race.
Another Unusual Footnote In An En Banc Fifth Circuit Opinion
Something strange happened in these two cases.
Over the years, I have written about many unusual and fractured voting splits on the en banc Fifth Circuit. An en banc case decided last week made me think of another en banc case from last year.
Ethridge v. Samsung SDI
Let's start with Ethridge v. Samsung SDI, a personal injury case about exploding batteries. In May 2025, a divided three-judge panel (Jones, Oldham, King) ruled that the district court had personal jurisdiction over the defendant. Judge Oldham wrote the panel opinion, joined by Judge King. Judge Jones dissented, finding the district court lacked personal jurisdiction. The Defendant filed petitions for panel rehearing and en banc rehearing. In December 2025, the Fifth Circuit issued a very unusual order with two components.
The first component indicates that the three-judge panel granted the petition for panel rehearing, withdrew the panel opinion, and issued a four-page substitute opinion.
Andrew S. Oldham, Circuit Judge:
IT IS ORDERED that the petition for panel rehearing is GRANTED. The court's prior panel opinion is WITHDRAWN, see Ethridge v. Samsung SDI Co., 137 F.4th 309 (5th Cir. 2025), and the following opinion is SUBSTITUTED therefor.
Now, the panel reversed itself and found that there was not personal jurisdiction. What caused the change? The Seventh Circuit addressed the same question "with the benefit of jurisdictional discovery." The panel stated "After reconsideration in light of [the Seventh Circuit precedent], we affirm the district court's dismissal for lack of personal jurisdiction."
So far, nothing out of the ordinary. It is common enough for a panel to grant a petition for rehearing, especially if there is some relevant precedent from another circuit.
The second component of the order is strange. The body of the order is two paragraphs, followed by a * footnote.
Per Curiam:
The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing (Fed. R. App. P. 40 and 5th Cir. R. 40).
In the en banc poll, 5 judges voted in favor of rehearing (Jones, Smith, Richman, Ho, and Engelhardt), and 11 judges voted against rehearing (Elrod, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Duncan, Wilson, Douglas, and Ramirez).*
* Judge Oldham's participation is not reflected because the panel granted rehearing. See Fed. R. App. 40(a) ("Panel rehearing is the ordinary means of reconsidering a panel decision; rehearing en banc is not favored."); 5th Cir. R. 40 I.O.P. ("Panel has control—Although each panel judge and every active judge receives a copy of the petition for rehearing en banc, the filing of a petition for rehearing en banc does not take the case out of the control of the panel deciding the case. A petition for rehearing en banc is treated as a petition for rehearing by the panel if no petition is filed. The panel may grant rehearing without action by the full court." (capitalization omitted; emphases added)).
A few things stand out.
First, if the petition for panel rehearing was granted, why did the order need to indicate the outcome en banc poll? The usual approach is to say the petition for panel rehearing is granted and the petition for rehearing en banc is denied. Indeed, very often, the panel modifies its opinion to block en banc review. But this order still indicated that there was an en banc poll, and that the poll failed by a vote of 11-5.
Second, this order raises some questions about timing. The Seventh Circuit's decision was issued in July 2025, about two months after the panel opinion. Was the en banc poll take before or after the Seventh Circuit decided its case? The order reveals that the poll was conducted at the request of one member of the court. Was the petition for panel rehearing initially granted or was it held pending the en banc poll?
Third, there are seventeen active members of the Fifth Circuit. The votes of sixteen members are listed. Yet Judge Oldham's vote is not indicated in the poll. I can't recall this ever happening before.
Fourth, the * footnote is something I have also never seen before. Judge Oldham explains that his en banc vote is not recorded because the panel retained control over the case in light of the petition for panel rehearing. Therefore, he apparently did not participate in the vote at all. I think Judge Oldham's position is incorrect. The Internal Operating Procedure rule states that the panel may grant rehearing in the absence of an en banc poll. But the rule does not state that a poll may not be called while a petition for panel rehearing is pending. An en banc poll can be called even if the petition for panel rehearing remains unresolved.
Indeed, Oldham's position would yield some difficult outcomes. Could it really be the case that so long as a petition for rehearing is pending, the en banc court is powerless to take any action? The en banc court does not need the panel's permission to call a poll. Of course, here the en banc vote failed, but that outcome is besides the point. Had the en banc poll succeeded, the panel opinion would have been vacated, the petition for panel rehearing would have become moot, and the case would have been reheard en banc. The original panel cannot hold a case hostage to keep it away from the full court.
I don't think my reading of the rule is idiosyncratic. The fact that the other sixteen active judges on the court voted, even as a petition for panel rehearing was pending, suggests that Judge Oldham stood alone.
The usual practice in the Fifth Circuit is to file both a petition for panel rehearing and a petition for rehearing en banc. It wouldn't be hard to research how often en banc polls were called when a petition for panel rehearing was pending. I suspect that scenario happens often. Granted, Judge Oldham does not believe in horizontal stare decisis and the rule of orderliness, so perhaps past practice is not the actual law.
What makes Judge Oldham's action here even odder was that his vote flipped on the personal jurisdiction issue. There is no mystery of what his views on the case were. Why not simply record his vote? Indeed, if he thought en banc rehearing was improper, he should have voted against rehearing. Or, Judge Oldham may have thought the entire vote itself was illegitimate, and he was boycotting the process altogether. In Ethridge, Jude Oldham was the only one. (Pardon my 90s rock reference.)
Holberg v. Guerrero
Fast-forward to last week. On August 14, the en banc Fifth Circuit issued an order in Holberg v. Guerrero. While the Fifth Circuit has seventeen active members, Senior Judge Higginbotham participated in the case, so there were eighteen members of the en banc court.
The order begins with, again, something I have never seen before.
Suit Alleging Medical Establishment's Desire to Compel Doctors "to Toe the Line in All Matters Related to COVID …" Can Go Forward
"Nor is it evident that the approach taken by Defendants insulated the process from undue 'political influence.' To the contrary, political influence would appear to have been the point."
From Chief Judge Lance Walker (D. Me.) today in Nass v. Maine Bd. of Licensure in Medicine:
As alleged [in the Complaint], this case arises out of the COVID-19 pandemic and the desire of the medical establishment, in this instance the Maine Board of Licensure in Medicine, to compel medical practitioners to toe the line in all matters related to COVID medical treatments as well as messaging concerning vaccination efficacy and treatment alternatives.
Plaintiff Meryl Nass, M.D., has been a Maine-licensed doctor since 1997 with no disciplinary infractions prior to the events narrated below. Dr. Nass has testified to Congress on six occasions and, as an acknowledged expert on anthrax and the anthrax vaccine, has been quoted in major media outlets like the New York Times, the Washington Post, the L.A. Times, and the Chicago Tribune.
Dr. Nass's speech frequently involved topics like the governmental handling of the pandemic, the efficacy of masking and mask mandates, the suppression of effective medications to treat COVID-19 (such as ivermectin and hydroxychloroquine), the safety and risks of the COVID-19 vaccines, and other matters related to the pandemic. She discussed these topics on the radio, in interviews, on her blog, and elsewhere on the Internet. Dr. Nass's expressed viewpoints were critical of the government, its handling of the pandemic, and the vaccines….
The Defendants … all served as members of the Maine Board of Licensure in Medicine during the relevant timeframe. Dr. Gleaton served as the Chair of the Board. In the fall of 2021, Dr. Gleaton issued a position statement on behalf of the Board warning of disciplinary action for licensees "who generate and spread COVID-19 vaccine misinformation or disinformation" "or practice based on such misinformation."
Dr. Nass's viewpoints conflict with those asserted in the Board's position statement and the resources the position statement identified as useful in "support[ing] the fight against Covid-19 misinformation[.]" On or about October 6, 2021, the Board received a complaint that Dr. Nass was spreading misinformation in a video and on her website. The complainant qualified, "I am not her patient. I have never been treated by Meryl Nass, nor has anyone I am associated or acquainted with."
"Yes, I'm with … Hamas and Hezbollah and Islamic Jihad but up to a Point" Visiting Prof's Suit Against Columbia Dismissed
"Professor Abdou provides no authority which stands for the proposition that expressing disapproval of a foreign terrorist organization in a Congressional hearing amounts to discrimination or creates a hostile work environment ...."
Some excerpts from Judge Kathleen Waterman-Marshall's longish decision filed Monday in Abdou v. Columbia Univ. (an appeal appears imminent):
Plaintiff Mohamed Abdou … is a North African-Egyptian Muslim scholar in the field of Cultural Studies, who was employed as a visiting professor at Columbia for the Spring 2024 academic term; his employment term end date was May 31, 2024. On April 17, 2024, Dr. Shafik, the former Columbia President, testified before the U.S. House Committee on Education and the Workforce … During the House Committee hearing, members of Congress questioned university presidents, including Dr. Shafik, about pro-Palestinian activism on campuses…. According to the complaint:
During the hearing, [Rep. Elise] Stefanik referenced pro-Palestinian tweets posted by [Professor Abdou] on X, and asked [Dr.] Shafik whether [Professor Abdou] will face consequences for his First Amendment protected speech, which occurred wholly outside the University setting.
Specifically, [Dr.] Shafik stated, "he will never work at Columbia again," referring to [Professor Abdou], and further stated, "he has been terminated and not just terminated, but his files will show that he will never work at Columbia again.… [H]e is grading his students' papers and will never teach at Columbia again and that will be on his permanent record."
The complaint alleges that Dr. Shafik's statement "was in direct violation of Columbia's own process for faculty suspension and dismissal as listed in the University Statutes"; and that, following Dr. Shafik's testimony at the hearing, Professor Abdou has been subjected to "harassment, death threats, and racially motivated hate mail". The complaint also alleges that Shai Davidai …, a business professor at Columbia, doxed Professor Abdou, targeted him to receive threats by third persons, and otherwise harassed him:
Tenn. S. Ct. Lets Stand Decision That Copyright Law Doesn't Bar Release of Covenant Shooter Manifesto
Last week, the Tennessee Supreme Court denied the parents' application to review the Tennessee Court of Appeals' ruling, so that now goes into effect. Here's my post on the Court of Appeals ruling, from February:
[* * *]
Following the 2023 Covenant School shooting in Nashville, in which the shooter was killed by responding police officers, the shooter's parents inherited the shooter's copyright interest in various writings (including the shooter's manifesto). They then assigned it "to a trust to be held for the benefit of the Covenant Parents' children," and the Covenant Parents argued that this should keep the writings from being released. The trial court agreed, but yesterday's Tennessee Court of Appeals opinion in Brewer v. Metro. Gov't of Nashville (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson) basically rejected the copyright argument for nondisclosure:
The trial court and the Parents … conflate the concept of access for inspection [which wouldn't itself implicate the Copyright Act -EV] with reproduction and display [which might potentially implicate the Act, subject to the fair use defense -EV]. Indeed, the TPRA requires that "[a]ll state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state …"
We interpret the TPRA broadly to promote access to the records, in keeping with the statutory purpose. Considering this statutory purpose, we can construe the TPRA in such a way that does not require Metro to publicly display its file. Nor need Metro distribute the records to the public; rather, Metro need only allow Petitioners access for personal inspection. Although the Act protects the means by which copyrighted material may be obtained, the Act itself does not inure total confidentiality and secrecy.
As another state court confronted with this issue noted, "[o]ne could certainly disclose a record without either reproducing or distributing the same record." Nat'l Council on Tchr. Quality v. Curators of Univ. of Mo. (Mo. Ct. App. 2014); see also Ali v. Phila. City Plan. Comm'n (Pa. Commw. Ct. 2015) ("[N]ot every disclosure of copyrighted material without the owner's consent violates the Copyright Act."). By the same token, Metro may allow access to the records for personal inspection without itself copying, displaying, or publishing the records. This result "allow[s] the public to scrutinize [Metro's] reliance on or consideration of the copyrighted material[,]" thus furthering the purposes of the TPRA.
Court Partly Blocks Minnesota Law Restricting False Statements About "Restrictions on Voter Eligibility"
Minnesota officials were using the law to block contested claims about when felons were allowed to vote in Minnesota elections.
From Minnesota Voters Alliance v. Ellison, decided today by Eighth Circuit Judge David Stras, joined by Judges Raymond Gruender and Jonathan Kobes:
A group of Minnesotans want to express their belief that certain felons cannot vote. Can the state criminalize their speech? In denying a preliminary injunction, the district court thought so. We disagree….
Minnesota has a law that allows felons to vote unless they are currently behind bars. See Minn. Stat. § 201.014 ["An individual who is ineligible to vote because of a felony conviction has the civil right to vote restored during any period when the individual is not incarcerated for the offense" -EV].
Minnesota Voters Alliance … [takes the] view … that the Minnesota Constitution allows felons to vote only if their "civil rights" have been "restored," which occurs at the end of their sentence. Minn. Const. art. VII, § 1 ["The following persons shall not be entitled or permitted to vote at any election in this state: … a person who has been convicted of … felony, unless restored to civil rights …." -EV] For some, it comes with their release from prison. For others, like those on supervised release, it does not. See Minn. Stat. § 243.05, subd. 1(b) (explaining that parolees "remain[] in the legal custody and under the control of the commissioner" of corrections). The Alliance thinks anyone who is still under the supervision of the Department of Corrections is ineligible to vote because their civil rights remain limited. See Minn. Stat. § 243.05, subd. 1(c) (declaring that "state parole and probation agent[s]" can arrest them without a "warrant" under certain circumstances).
Unable to challenge the law in state court, see Minn. Voters All. v. Hunt (Minn. 2024) (holding that its members lacked standing), the group wants to keep speaking publicly on the issue.
Standing in the way is another Minnesota law aimed at preventing the spread of election disinformation. It states, in relevant part, that:
[a] No person may, within 60 days of an election, cause information to be transmitted by any means that the person:
[1] intends to impede or prevent another person from exercising the right to vote; and
[2] knows to be materially false.
[b] The prohibition in this subdivision includes but is not limited to information regarding the time, place, or manner of holding an election; the qualifications for or restrictions on voter eligibility at an election; and threats to physical safety associated with casting a ballot….Minnesota and Anoka County believe the Alliance's speech falls within one of the "historically unprotected categories" they are free to regulate. The distinction they draw is a fine one: the First Amendment protects speech about "who should be" able to vote, not speech about "who is eligible to vote." The former qualifies as speech designed to generate "political and social change." The latter, however, is the "[s]preading [of] false information in and of itself," because the law is knowable and certain.
Today in Supreme Court History: August 20, 1866
8/20/1866: President Andrew Johnson proclaims an "end to insurrection in the United States."
Open Thread
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"Trendy Eateries May Keep a Secret Menu; the United States Code Does Not"
Some excerpts from the long opinion in R.J. Reynolds Tobacco v. FDA, written by Judge Don Willett and joined in relevant part by Judges Leslie Southwick and James Ho:
When Congress legislates in broad strokes, constitutional trouble sometimes follows. This case presents the opposite problem: Congress legislated with precision, and an agency treated that precision as optional. In the Family Smoking Prevention and Tobacco Control Act (TCA), Congress provided a detailed framework with nine prescribed warning statements that must appear on cigarette packages and advertising, while granting the Food and Drug Administration (FDA) only limited, conditional authority to adjust it. The FDA's rule, however, requires the display of eleven warnings, prompting multiple cigarette manufacturers and retailers (Plaintiffs) to challenge it.
At this preliminary stage, the statutory text points one way: the FDA may require the nine warnings Congress prescribed—no more. The district court agreed and temporarily postponed the Rule's effective date after finding that Plaintiffs had shown a substantial likelihood of success on their claim that the FDA exceeded its statutory authority. Because that interim relief was no abuse of discretion, we AFFIRM….
Relevant here, the TCA made it "unlawful for any person to manufacture, package, sell, offer to sell, distribute, or import for sale or distribution" cigarettes if the package "fails to bear … one of the following labels[.]" The statute then enumerates nine warning labels addressing specific health risks associated with smoking:
"The Cascade of Dysfunction That Helped Doom Jason Arday"
An excellent piece today by Jesse Singal in The Dispatch; the whole thing is worth reading, but here are some excerpts (by the way, I much enjoy Singal's and Katie Herzog's work on Blocked and Reported; it's one of the few podcasts to which I have a paid subscription):
In the U.K., Labour MP Dawn Butler published a letter to the head of the Independent Press Standards Organisation, an independent regulatory body, arguing that "Jason would still be alive today if not for the relentless and pernicious coverage by the Times, Telegraph, Mail and Spectator, to name a few," and calling for (unspecified) "decisive action" in response to his death. The British journalist and broadcaster Will Self took things even further, posting a lengthy open letter to Prime Minister Andy Burnham calling for a crackdown that sounds far more Moscow than London. Self argued that the Crown Prosecution Service "should be examining the matter, and the police should be impounding computers" before claiming that "This is not an attack upon a free press—it is a necessarily immediate defence of one." An open letter arguing that "Self-regulation of the press has comprehensively failed" was signed by a number of British academics and politicians, including Green Party leader Zack Polanski…..
[But] the call for more scrutiny of media, or even outright censorship of it, is astonishing in light of the facts of this case. It was because of the U.K.'s lack of press protections that this story took so long to come out, which, in the end, increased the damage done to Arday. Times Higher Education had a story in the works last year, but Arday sicced an infamous British law firm, Carter-Ruck, on the outlet, killing it. That would not have happened in the United States, because our defamation laws are much more media-friendly (as strange as that might sound during the Trump era).
Fourth Circuit Concludes South Carolina Cannot Limit "No-Excuse" Absentee Ballots to Those Over 65
An election law question that seems destined for the Supreme Court.
Yesterday, a unanimous panel of the U.S. Court of Appeals for the Fourth Circuit concluded that states cannot limit "no excuse" absentee voting to the elderly. Judge Gregory wrote for the panel in Grant v. Belangia, joined by Judges Harris and Richardson. His opinion begins:
The Constitution grants states broad authority to regulate "[t]he Times, Places and Manner of holding Elections," U.S. Const. art. 1, § 4, including whether to permit absentee voting. But when a state offers a method for casting a ballot, the Constitution forbids restricting access to that voting method based on any prohibited ground, including age. U.S. Const. amend. XXVI. Because the South Carolina statute at issue restricts access to "no excuse" absentee-by-mail ballots to voters sixty-five years of age or older, we agree with Plaintiffs that it violates the Twenty-Sixth Amendment.
While concluding South Carolina's law violated the Twenty-Sixth Amendment, the panel rejected the challengers' Equal Protection claim.
As a refresher, the Twenty-Sixth Amendment provides:
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
In rejecting South Carolina's law, the court concluded that the differential treatment of voters based upon their age constitutes an "abridgement" of the right to vote. From the body of the opinion:
Construing the Twenty-Sixth Amendment in harmony with the Constitution's other voting rights amendments, we find that the unequal allocation of voting access based on age constitutes an abridgement of Plaintiffs' right to vote. . . .
the Twenty-Sixth Amendment's text, structure, and history demonstrate its purpose to place age-based restrictions on adult citizens' electoral participation within the same family of constitutional prohibitions as other forbidden bases for denying or abridging the right to vote. . . .
State governments retain the primary authority to determine the contours of the right to vote, and the voting rights amendments do not change that basic structure or create a freestanding universal "right to vote." See U.S. Const. art. I, § 4. However, the amendments do forbid states from administering their voting rules in a discriminatory manner based on a protected characteristic. . . .
the right to vote "ought to be" what a state has defined it to be, but administered without discrimination based on a protected characteristic. So, Plaintiffs must have the same access to the ballot provided to the favored group of voters—here, those age sixty-five and over. . . . Voting laws must adhere to the Amendment's "mandate of neutrality" when it comes to age. . . . In other words, a voting law cannot make it harder for one group to vote than another because of their age. . . .
We do not doubt that South Carolina retains "broad powers to determine the conditions under which the right of suffrage may be exercised," but . . . once the state makes absentee-by-mail voting available, it may not allocate access to it in a manner forbidden by the Constitution.
So what's the remedy for this constitutional violation? The panel punted on that question:
We leave questions about the timing of a remedy to the district court in the first instance, recognizing that "considerations specific to election cases" counsel against court ordered remedies that might cause voter confusion when elections are imminent. See Purcell. . . .
As the opinion notes, the Fourth Circuit's conclusion here is in conflict with recent decisions from the Fifth and Seventh Circuits. Thus I expect South Carolina to seek certiorari and, given the circuit split, I would think a grant is reasonably likely.
Islamic Center's Allegation of Religious Targeting by Texas Funeral Services Commission Can Go Forward
From the longish opinion by Judge David Alan Ezra in East Plano Islamic Center v. Texas Funeral Servs. Comm'n, decided June 24 but just posted on Westlaw a few days ago:
East Plano Islamic Center ("EPIC") brings this action to vindicate its right to conduct religious funeral and burial rites in accordance with Islamic faith and tradition. EPIC is a nonprofit Islamic organization in Plano, Texas, formed to "provide religious, social, and educational services to inspire the Muslim community to fulfill its responsibility and contribute to the betterment of society by following the principles of Quran and the noble life of Prophet Muhammed (peace be upon him)."
One of the sincerely held religious beliefs of EPIC and its Muslim membership is the collective obligation held by the religious community to perform proper Islamic funeral rites for the deceased. Islamic religious law calls for prompt ritual cleansing, shrouding, prayer, and burial in which the integrity and dignity of the decedent's remains are scrupulously maintained throughout. To that end, EPIC offers traditional, non-commercial, Muslim funeral services and burials; especially for Muslim families unable to afford the services. EPIC assists Muslim families by arranging and facilitating religious funeral services (washing, shrouding, and performing the Janaza prayer) in partnership with licensed funeral providers. …
Chapter 651 of the Texas Occupations Code regulates the funeral industry in Texas, requiring licensure for persons or entities that engage in the business of funeral directing or operating a funeral establishment. The Texas Funeral Services Commission ("TFSC") is tasked with enforcing these provisions ….
On March 26, 2025, TFSC issued a cease-and-desist letter (the "C&D Letter") to EPIC, ordering it to immediately halt what the Commission alleged were unlicensed funeral service operations. Specifically, the C&D Letter accused EPIC of operating as a funeral home without an establishment license, in violation of Texas Occupations Code § 651.351…. The C&D Letter did not include which specific practices EPIC was engaging in that were alleged to be in violation of the Occupation Code…. EPIC alleges it was not running a place of business and was not in the business of embalming or funeral directing….
EPIC contends that the TFSC's action violates both state and federal constitutional and statutory protections for religious exercise, as well as exceeds its statutory authority. EPIC points to TFSC's prior affirmations that religious organizations could perform burial-related rites so long as they were not doing so for profit….
The court concluded that, if the facts are as plaintiff has plausibly alleged them to be, the conduct of defendants TFSC and its then-Chair Kristin Tips would be unconstitutional:
Seventh Circuit Strikes Down Restriction on Informing Indiana Minors About Out-of-State Abortion Providers
Some excerpts from yesterday's long decision in Planned Parenthood Great Nw. v. Comm'r, decided by Judge David Hamilton, joined by Judge Ilana Rovner:
In 2017, Indiana passed what we call the "aid-or-assist" law, which forbids knowingly or intentionally aiding or assisting an unemancipated pregnant minor in obtaining an abortion without first satisfying Indiana's parental consent and notice requirements. Plaintiff Planned Parenthood provides to its clients factually accurate information about abortion providers who operate lawfully in other states. Plaintiff provides such information to unemancipated pregnant minors who seek it. Defendants are Indiana state officials who maintain that providing such information violates the aid-or-assist law unless plaintiff can show that it first satisfied the same stringent parental consent requirements that must be satisfied before a minor may obtain an actual abortion….
Defendants argue that First Amendment protections do not apply here on the theories that the information and referrals are "speech integral to criminal conduct" or merely "incidental" to conduct. We are unpersuaded by both arguments. The aid-or-assist law, as applied to the information and referrals at issue, is a content-based regulation of speech.
The court rejected the state's argument that the law regulates only speech that fits within the First Amendment exception for speech "integral to unlawful conduct":
Routledge Handbook of Classical Liberalism Available for Free on Amazon Kindle
It is edited by Richard Epstein, Mario Rizzo, and Liya Palagashvili. I am one of the contributors.
The Routledge Handbook of Classical Liberalism is now available - for free! - on Amazon Kindle. I don't know how long this generous offer will last, so interested readers should act fast. The volume is edited by big-name libertarian/classical liberal scholars Richard Epstein, Mario Rizzo, and Liya Palagashvili. Epstein, of course, is probably the most prominent living libertarian legal scholar in the world. There are chapters on a wide range of issues in law, economics, and political theory, including one by me on "Land-Use Regulation." A version of my chapter is also available on SSRN here. Other contributors include such luminaries as Peter Boettke, Tom Merrill, Richard Wagner, Alex Nowrasteh, and many, many more.
Here is the publisher's summary of the book:
The Routledge Handbook of Classical Liberalism provides a comprehensive analysis of classical liberal theory including a survey of the theory's central ideas and arguments, and the application of these ideas to contemporary issues.
Chapters providing theoretical analyses are interwoven with coverage of wide‑ranging, concrete applications such as public health and healthcare, technology, policing, taxation and wealth, constitutional structures, and more. Across these areas, this handbook demonstrates how classical liberalism provides a unified approach over a divergent set of problems, providing a statement of modern classical liberalism serving as a research tool for a wide variety of individuals across the ideological spectrum. Classical liberalism is a systematic effort to ensure that the existence of the state does not abridge the fundamental rights and liberties of individuals, especially including property and contract rights. It holds that laws must satisfy the criteria of the Rule of Law so that stable relations between the individual and the state may develop.
The Routledge Handbook of Classical Liberalism is an authoritative and key reference text for students, academics, and researchers engaged in the study of political ideologies, political science, political economy, economics, law, social policy, and related fields.
And here is the abstract for my chapter:
Land-use regulation is a major function of virtually every government in the world. It raises many issues for classical liberalism. This chapter provides an overview of three of the most important areas of land-use policy: the use of eminent domain to forcibly take property for government-approved projects, regulations that restrict property owners' use of their land, and the relationship between property rights in land and migration restrictions.
Section 2 covers the use of eminent domain to take private property and arguments for its limitation to genuinely "public" projects, as opposed to coerced transfers between private owners. Unconstrained use of eminent domain is a serious threat to property rights and hampers economic development.
Section 3 considers regulatory restrictions on land use that do not involve physical occupation of property. There is a long-standing debate about the value of such restrictions and whether the government should pay owners compensation. The most significant regulatory restrictions of this type in many nations are zoning rules restricting housing construction.
Finally, Section 4 provides a critical overview of property rights rationales for restricting mobility, particularly in the form of international migration. Such theories justify severely constraining the liberty and property rights of both migrants and natives.
Although I'm a contributor to both this volume and the earlier Routledge Handbook of Libertarianism, as well as the Cambridge Handbook of Classical Liberal Thought, I am still not sure whether there really is a meaningful difference between libertarianism and classical liberalism. See here for my analysis of possible distinctions between the two, and why I'm not convinced they work. I myself prefer the term "libertarian" to describe myself. But that's mostly an aesthetic preference, not one based on substance.
Azerbaijan Suing CNN for Libel: Can They Do That?
From yesterday's Complaint in Republic of Azerbaijan v. CNN, Inc. (D. Del.):
… Azerbaijan … brings this defamation complaint against [CNN] … for intentionally falsely reporting that Azerbaijan permitted Israel to use its territory to launch attacks against Iran, causing immeasurable reputational harm to Azerbaijan and endangering Azerbaijani civilians….
On March 5, 2026, four drones penetrated Azerbaijani airspace and struck several targets. One of the drones exploded near a secondary school, injuring two civilians. Another damaged a terminal at the nearby Nakhchivan Airport.
Five days earlier, war had broken out between Iran, on the one hand, and the United States and Israel, on the other (the "Iran War"). Azerbaijan, which shares a border with Iran to the south, is not and has never been a participant in the Iran War. Azerbaijan has not supported military operations by any of the warring nations.
Azerbaijan maintains a policy of neutrality and independence. Azerbaijan does not host any foreign military bases on its territory and, as a non-aligned state, maintains a strict official policy and legislative framework against foreign military footprints.
But, on June 5, 2026, CNN's reckless reporting threatened to drag Azerbaijan into war. In a CNN World post titled "Exclusive: Israel sent troops to Azerbaijan during Iran war, sources say," CNN falsely claimed that Azerbaijan had allowed Israel to use its territory to launch attacks against Iran.
Prof. Rick Hasen on Too Many Dan Sullivans
From his post last night on Election Law Blog (Hasen is one of the top election law scholars in the country):
An NBC News report raises some serious First Amendment concerns for potentially prosecuting someone for having dishonest motives in running for office:
The federal investigation related to the dueling Republican Senate candidates in Alaska with the same name has entered a new phase.
A grand jury last week issued subpoenas to compel information from witnesses linked to the campaign of Dan J. Sullivan, a law enforcement official told NBC News.
The former schoolteacher who recently registered as a Republican is under investigation for potentially being part of a conspiracy to confuse voters and steal votes away from the incumbent, Dan S. Sullivan, who has been in office since 2015….
As to the potential charges, NBC reports:
The federal investigation is looking for possible wire fraud or a conspiracy to deprive Alaska voters of a free and fair elections process, which could be a civil rights violation, two people familiar with the probe previously told NBC News.
