The Volokh Conspiracy

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

In November, I attended the oral argument in the tariff case. I wrote a lengthy post about how I perceived the case. Ultimately, my bottom-line prediction was wrong. Trump would not get to five votes, let alone four votes. But I did have the occasion to reflect on the advocacy in the case. Here is how I described Neal Katyal's performance:

[S]everal Justices seemed skeptical, and even frustrated by Neal Katyal's presentation. He was polished, but wooden. Far too often, it seemed like he was giving rehearsed answers, which were not entirely responsive to the questions that were asked. Katyal may have also misread the room, and came in far too overconfident after the Solicitor General sat down.

I then explained how Katyal frustrated several justices, including Justice Gorsuch, who ultimately ruled against the government. At one point, Gorsuch said, "Well, you're not answering my question, though, Mr. Katyal." When Gorsuch asked about the Indian Commerce Clause, Katyal said, "I don't know that I have a position on that. It maybe is a little too afield for me to…" I observed: "Who played Justice Gorsuch in Katyal's moots? Did no one bring up the Indian Commerce Clause? General Sauer addressed this point directly during his rebuttal, so the government was ready." At another point, Justice Barrett asked a question about licenses that Katyal completely missed. He said, "Sorry. Could you say that again?" Katyal then had to back off and say he didn't concede something. Barrett chided, "Okay" with a tinge of sarcasm.

I closed my post with a reference to Jason Willick's Washington Post editorial, urging Michael McConnell to argue the case. I wrote:

Prior to the argument, Jason Willick wrote that Michael McConnell should have taken the podium instead of Neal Katyal. He explained that the respondents should have selected the conservative McConnell over the "partisan liberal lawyer." With the benefit of hindsight, I think Willick was correct. Michael McConnell clerked with Chief Justice Roberts the term that Dames & Moore was decided. He served with Justice Gorsuch on the Tenth Circuit. He traveled in the same law professor circles as Justice Barrett. McConnell would have been uniquely situated to bring this argument forward. And it would have been so much more powerful for an actual proponent of the separation of powers to argue this case. Indeed, at one point, Justice Alito ridiculed Katyal for making a non-delegation doctrine argument that he likely would not raise in any other context. Alito said, "I found it interesting to hear you make the nondelegation argument, Mr. Katyal. I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument." An uncomfortable laughter followed. Even Justice Kagan, who was Katyal's former boss, suggested that one of his arguments "cuts against" him.

I don't think Katyal was the right advocate for this job. If the government prevails, I think eyes will turn to him.

It's true that Katyal's side won, and he got 6 votes. But I don't think his advocacy had much to do with it. Any other competent member of the Supreme Court bar could have won that case. Indeed, I thought the Oregon Solicitor General, Benjamin Gutman, who had never argued before the high court, was more effective than Neal Katyal.

Anyway, I hadn't given much thought to the argument until I saw Katyal tweet about his imminent TED Talk:

Five months ago, I argued against the President's $4 trillion tariffs at the Supreme Court.

In 237 years, the Court had never struck down a sitting President's signature initiative. Legal scholars said it was impossible. Some of my own colleagues said it was impossible.

We won. 6-3.

But the real story isn't what happened in that courtroom. It's what happened in the months before. And its the subject of my TED talk, coming out tomorrow.

I had the best legal team in the nation, especially Colleen Roh Sinzdak, the most outstanding legal strategist I know. Huge thanks, too, go to the Liberty Justice Center (and in particular its fearless and hyper-intelligent leader Sara Albrecht), who organized the client small businesses, as well as to the brave small businesses themselves.

I also had four teachers preparing me.
A mindset coach who'd worked with Andre Agassi.
An improv coach who taught me that "Yes, and" works in Supreme Court arguments the same way it works everywhere else.
A meditation coach who taught me stillness.
And Harvey.

Harvey predicted many of the questions the Justices asked — sometimes almost word for word. Brilliant. Tireless. Occasionally insufferable.

Here's the catch: Harvey isn't a person.

Harvey is a bespoke AI I built over the last year with a legal AI company, trained on every question every Justice has asked in oral argument for 25 years, and everything they've ever written.

Tomorrow, TED releases my talk about what really happened — and what I learned standing at that podium.

AI can predict. AI can analyze. What AI cannot do is the one thing that actually won the argument.

Connect. Read the room. Hear not just a Justice's words, but her worry — and answer the worry.

That is the irreducibly human skill.
Find yours. Go deeper. In this age of AI, that's where your edge lives.

The talk goes live Thursday, May 7 at 11am ET: http://go.ted.com/nealkumarkatyal

What's the irreducibly human skill in your work — the thing AI can't touch?

Harvey is not the only thing insufferable about that tweet. Really, the posting looks like it was drafted by AI. Could the Ted Talk be even worse? Yes, it can. I thought of how best to break it down, and settled on simply annotating the transcript. If you want to read on, please do, but I won't blame you if you skip it.

Today, the US Court of International Trade issued an important ruling striking down Donald Trump's massive Section 122 tariffs, imposing 10% tariffs on a vast range of imports from countries around the world. The ruling is a crucial decision protecting the constitutional separation of powers and blocking an extremely harmful policy. The ruling addressed two consolidated lawsuits challenging the tariffs - one filed by the Liberty Justice Center (the same public interest group that I worked with on the earlier case that led to the invalidation of Trump's IEEPA tariffs by the Supreme Court) on behalf of two importers, and one brought by 24 state governments led by the state of Oregon.

Section 122 of the Trade Act of 1974 authorizes the president to impose up to 15% tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or create a need to cooperate with other countries in addressing an "international balance-of-payments disequilibrium." Today's 2-1 decision rests primarily on the ground that the government failed to prove that there is any balance-of-payment deficit of the kind required by the statute:

Rather than identifying "balance-of-payments deficits" as that term was intended
in 1974, the [President's] Proclamation relies upon current account deficits, and a discussion of "a large and serious trade deficit." Proclamation No. 11012 ¶ 6; see also id. ¶ 7 (referring to deficits concerning the balance of goods and services as well as the balances on primary income and secondary income, all of which are part of the current account); id. ¶ 8 (noting the trade deficit). Although the current account (and the balance of trade as a component of the current account) are relevant to balance-of-payments deficits, they are distinct, and the statute recognizes the distinction.

As the majority opinion explains, the term "balance of payments deficit" was understood in the Act to cover the kinds of imbalances that occurred under the Bretton Woods fixed exchange rate system that existed up until 1973, under which the United States committed to exchanging gold for dollars at a fixed rate, and other nations committed to exchanging their currencies for dollars (also at fixed rates). More specifically, "[t]he legislative history of the Trade Act of 1974 reveals that Congress understood balance-of-payments deficits to refer, at the time, to deficits in (1) liquidity, (2) official settlements, or (3) basic balance." As the court notes, at the time the law was enacted, there was a great deal of uncertainty about whether the US might return to some form of fixed-exchange rate system, and this law intended to provide a safeguard in the event of that happening.

The Trump administration argued that the president should get broad discretion in determining what qualifies as a "balance of payments deficit." As the court explains, that would give him virtually unlimited power to impose tariffs under Section 122, and would thereby create a constitutional nondelegation problem:

Despite acknowledging differences in the 1974 measures of the balance of
payments as compared to modern measures… the Government seeks to defend the Proclamation by arguing that "balance-of-payments deficits" is a malleable
phrase… However, the Government's suggestion that what constitutes "balance-of-payments deficits" may change proves too much…. [I]f the President has the ability to select among the sub-accounts to identify a balance-of-payments deficit, unless every sub-account is balanced, the President would always be able to identify a balance-of-payments deficit…..

Such an expansive reading of the statute would raise a non-delegation issue, which in turn would prompt a constitutional question…. "[T]he canon of constitutional avoidance" provides that, when one of two statutory interpretations would raise a constitutional question, "the other should prevail." Clark v. Martinez, 543 U.S. 371, 380–81 (2005); see also Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) (stating that the Court employs the nondelegation principle to interpret statutory text and give "narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional"); Indus. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (stating that "[a] construction of the statute that avoids [an] open-ended grant" of authority that would implicate the non-delegation doctrine "should certainly be favored"); … The Government's preferred interpretation of the statute must therefore be disfavored. See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) ("[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.")…..

Nondelegation and its relevance to constitutional avoidance are a major focus of the amicus brief I submitted in this case on behalf of the Cato Institute and myself. As explained in the brief, the government's interpretation of Section 122 would essentially give the president the power to use Section 122 to impose up to 15% tariffs at at virtually any time. We also argued that this violates the major questions doctrine (an issue today's ruling does not address).

While the majority correctly ruled that the Section 122 tariffs are illegal, it does not completely block their collection. Rather it imposes an injunction that covers only the two importers represented by the Liberty Justice Center, and the state of Washington (a plaintiff state that directly imports goods subject to the tariffs). The court ruled that the other 23 states lack standing, because they had not presented sufficient evidence to show they too import covered products directly. If this ruling on standing holds up, further litigation will be needed to block collection of Section 122 tariffs from other importers subject to them. But I suspect that many, if not all, of these other states do in fact import goods covered by the tariffs. If so, I hope they can present evidence to that effect, as the litigation goes on.

The dissenting opinion by Judge Timothy Stanceu argues at great length that the the majority's interpretation of the legislative history is wrong, and that the president deserves great deference in making Section 122 determinations. Significantly, he has no answer to the nondelegation and constitutional avoidance points covered above. Broad deference to the president would give him nearly unlimited power to impose Section 122 tariffs at any time, thereby creating a serious constitutional problem. In addition, for reasons I outlined in this article, it is a mistake for courts to give the executive sweeping deference when it comes to invocations of emergency powers that are supposed to be wielded only in extreme exceptional circumstances, thereby turning these authorities into a blank check the president can use at any time.

This litigation is likely to continue on appeal in the US Court of Appeals for the Federal Circuit and possibly the Supreme Court. I will likely have more to say about it in future posts.

For now, I am happy to see that the Court of International Trade got this right, and I congratulate my friends at the Liberty Justice Center on this important victory.

Property once owned by Marilyn Monroe in Los Angeles. (Pacific Legal Foundation/Latham & Watkins)

In Milstein v. City of Los Angeles, an important case currently before a federal court in California, property owners are challenging the use of a historic preservation to block virtually all development on their land. The Pacific Legal Foundation - a public interest law firm that works extensively on constitutional property rights issues - is representing the owners, and has a helpful description of the case (PLF is also my wife's employer, but she is not involved in this case):

In April 2026, Pacific Legal Foundation joined a federal lawsuit over a home once owned by Marilyn Monroe. The lawsuit aims to prevent the government from forcing individual property owners to shoulder the financial burden of public historic monuments.

The case began in 2023, when a California couple bought an unoccupied, deteriorating property on a dead-end residential street, intending to demolish and redevelop it after purchase. They applied for the appropriate permits, which the City of Los Angeles granted without objection after a standard 30-day hold. One day later, a local government official filed paperwork to designate the property a historic monument. The City then revoked the permits and approved the historic designation, rendering the property untouchable to its new owners, Brinah Milstein and Roy Bank.

To justify abruptly declaring the property a public monument, Los Angeles cited a former resident. Marilyn Monroe had owned the home for 157 days before her death in 1962. But few traces of the star remain today because the City ignored the property for over 60 years—without once raising a preservation concern—while 14 successive owners freely renovated both the home and grounds, eradicating any trace of Monroe's time there.

The new historical designation prohibited the homeowners from using their own property—even banning repairs to damaged features without the approval of the City's historical commission. It also left the homeowners facing a litany of threats to their safety. Although the City had declared the entire property a public monument, there was no way for the public to access the derelict house within its gates. Undeterred, fans flew drones overhead, trespassers scaled the walls, and burglars broke in hunting for traces of the property's celebrated former tenant.

Milstein and Bank tried to work with the City to restore their property rights, offering to personally pay to relocate the home to create an accessible public museum. The City refused, leaving no remedy but the courts.

In January 2026, the homeowners filed a federal lawsuit arguing that the City had violated their Fifth Amendment rights by failing to provide them just compensation for turning their property into a public monument, eradicating all viable economic uses for the property, and causing the public to trespass to view the new "monument."

Historic preservation laws exist in numerous jurisdictions around the country, and are often used by "NIMBY" activists to block development, thereby preventing construction of affordable housing, and exacerbating racial segregation. In many cases - including this one - the sites in question actually have little or no genuine historical value.

This case is a particularly egregious one because the "monument" designation destroys virtually all the property's economic value, and that site has no genuine historical value, because subsequent owners destroyed virtually all trace of Marilyn Monroe's brief occupation of the house. As the plaintiffs' complaint explains, the former circumstance renders the designation a taking requiring payment of compensation under the Supreme Court's 1992 ruling in Lucas v. South Carolina Coastal Council, which held that regulations that forbid all economically valuable uses of a property automatically qualify as "per se" takings.

In addition, as outlined in my article on "The Constitutional Case Against Exclusionary Zoning" (coauthored with Joshua Braver), the property right protected by the Takings Clause of the Fifth Amendment includes the right to use property, which in turn includes the right to build various types of new housing. Thus, most regulations severely restricting housing construction should be considered takings under the original meaning of the Takings Clause, and also from the standpoint of various living Constitution theories of interpretation. I furthered covered the importance of the right to use in this recent book chapter.

Hopefully, this case will be the beginning of stronger efforts to enforce constitutional constraints on historic preservation laws. That's essential both to protect the rights of property owners, and to eliminate obstacles to the construction of badly needed new housing in many communities.

What about the (comparatively rare) cases where local governments seek to preserve a property with genuinely great historical importance? The answer is they can use eminent domain to take such property, so long as they pay compensation. For example, in United States v. Gettysburg Electric Railway Co. (1896), the Supreme Court ruled that the federal government can use eminent domain to take property in order to preserve the Gettysburg Civil War battlefield. The requirement of paying "just compensation" both helps protect the rights of property owners, and incentivizes government to limit historic preservation mandates to those areas where there really is a great historic value to protect. Gettysburg qualifies, while the property at issue in the Milstein case does.

People interested in constitutional property rights and housing policy would do well to keep an eye on this case.

[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

That Abraham Lincoln, our most American of presidents, "never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence," our most American of documents, seems only appropriate. That Lincoln was both a political philosopher and political genius may be enough to explain why the lanky rail-splitter from Illinois repeatedly invoked the Declaration, even before entering the political arena and when he had no expectations of returning to political office. Like his contemporaries, however, Lincoln grew up surrounded by images of the Declaration, keeping it a living document in the minds of Americans. In this 250th year of Independence, understanding the Declaration's prevalence as a cultural and material object in the first half of the 19th century may help explain how, after decades of relative obscurity, it became the undisputed expression of the American creed that we celebrate today.

The quote that opened this post is from Lincoln's speech at Independence Hall, on February 22, 1861. Traveling by train from his home in Springfield, Illinois, Lincoln stopped in Philadelphia to address a crowd at the spot where the Declaration was signed. By now, with the Confederate States of America established, with their capital in Montgomery, Alabama, the Declaration was at the center of the great crisis that had been brewing at least since the Missouri Compromise of 1820, and more accurately, since July 4, 1776. By 1861, references and appeals to the Declarations principles came not just from the Republican president-elect, but from Confederate President Jefferson Davis and his Vice-President Alexander Stephens, in newspapers and polemicists in North and South. Though secession was a constitutional crisis, arguments both pro and con were infused with the spirit of the Declaration.

Such prominence for the Declaration would have surprised second-generation Americans. To them, the Declaration was a relic of the Revolution, an honored but largely ignored document. It had done its job announcing the Colonies' separation from Great Britain; after that, the job of governing was the preserve first of the Articles of Confederation and then the Constitution. In the first decade of the 19th century, John Adams' Federalists forbore from honoring the Declaration on July 4, while Thomas Jefferson's Democratic-Republicans celebrated both the document and its drafter. Few on either side, however, saw it as having much of a role to play in an America a full generation away from Independence.

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5/7/1873: Chief Justice Salmon P. Chase died. One month earlier, he dissented in the Slaughter-House Cases, and was the lone dissenter in Bradwell v. Illinois.

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On October 25, 2023, 18 people were killed in a mass shooting in Lewiston, Maine. The killer's declining mental health was known to law enforcement since that May. On July 6, although he owned other firearms, he legally purchased the firearm that he would use in the attack. By August, he repeatedly threatened members of his Army Reserve unit that he would "shoot up" the base. He was hospitalized for psychological evaluation but released. Two months later, he carried out his nefarious threats at a bowling alley and a cafe.

In 2024, the Final Report of the Independent Commission to Investigate the Facts of the Tragedy in Lewiston was released, faulting both the military and law enforcement for taking no action to disarm and hospitalize the killer.

Before the Commission report was even released, the Maine legislature enacted a statute targeting any person who would buy a firearm: "Waiting Period. A seller may not knowingly deliver a firearm to a buyer pursuant to an agreement sooner than 72 hours after the agreement." As the timeline of events indicated, no relation existed between the perpetrator's vile acts taking place six months earlier and the 72-hour firearm transfer waiting period.

In Beckwith v. Frey, decided on April 3, the First Circuit reversed the district court's issuance of a preliminary injunction against enforcement of the new law. For those needing a firearm for protection against an immediate threat, not to worry. The court found it relevant that the Maine Coalition to End Domestic Violence submitted a statement warning that potential victims not obtain firearms for protection as the firearms were more likely to be used against them, and anyway the Coalition offered "services" to keep victims safe during the seventy-two-hour waiting period. That must have been reassuring to battered spouses facing death threats.

In the opinion for the court, Judge Seth Aframe held that "laws regulating the purchase or acquisition of firearms do not target conduct covered by the Second Amendment's 'plain text,'" which only "means to have and carry guns." Since the law regulates activity that takes place before that, it is "outside the Second Amendment's plain text." Under that logic, nothing in the text of the Amendment would preclude a law that simply banned absolutely the delivery or transfer of a firearm from one person to another. One's right to keep and bear arms does not imply a right to obtain them.

Plaintiffs, the court continued, thus had the burden to show that the law was "abusive" in line with Bruen's footnote nine. The court read footnote nine to mean that "the full two-step analysis did not apply to 'shall-issue' laws because these laws delay, but do not deny, licenses while states ensure that guns are being carried by law-abiding and responsible citizens." However, the Supreme Court only stated in footnote nine that "shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.'" It added that, "because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry." Wait times must thus be keyed to requirements like a background check, not just waiting for its own sake.

The Beckwith court next turned to Heller's statement that nothing in the opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The court read "longstanding" to modify only "prohibitions," not "laws imposing conditions," and so the waiting period need not be longstanding. (That issue may be moot, as Bruen requires Founding-era analogues.) And it said that a "condition" need not be a particularized criterion that an individual must meet – the waiting period is itself a condition.

Finally, Beckwith stated that in other contexts, the Supreme Court "strictly scrutinizes laws that directly restrict the exercise of fundamental rights but often reviews more deferentially laws that only impose incidental burdens on the exercise of those rights." It mentioned the First Amendment, but did not venture to suggest that the Supreme Court would approve a waiting period per se for exercise of any right protected by the First Amendment.

Ortega v. Grisham (10th Cir. 2025), an opinion by Judge Timothy Tymkovich, is in stark contrast with Beckwith. Ortega invalidated a New Mexico statute providing that "[a] waiting period of seven calendar days shall be required for the sale of a firearm and the transfer of the firearm to the buyer." The court held that "the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text." When the text authorizes an act, it implicitly authorizes any necessary predicate of the act.

Moreover, Ortega continued, Heller's reference to "longstanding prohibitions" modified "laws imposing conditions and qualifications on the commercial sale of arms." The waiting period is not a longstanding prohibition and it is not limited to commercial sales. Furthermore, "It is not a condition because it cannot be met by any action, and it is not a qualification because it is universally applicable…. The sale happens regardless, and the waiting period is just an artificial delay on possession."

Nor could the state meet its burden to show that the law had appropriate historical analogues, including intoxication laws, license and permitting regimes, and targeted group bans on firearm carry or possession. The law assumes that "anyone seeking to purchase a firearm can be presumed irresponsible or non-law-abiding, purely by dint of their intention to purchase a firearm." That contrasts with the purpose of shall-issue licensing regimes and background checks which have the purpose of assuring that firearm purchasers are responsible, law-abiding citizens.

So we can add waiting periods to the growing list of Second Amendment restrictions that the Supreme Court should resolve, either by a case on point or a principle of general applicability.

It's worth recalling how "cooling off" periods came to national attention as a panacea for violence committed by the mentally deranged. John Hinckley, Jr., purchased a revolver and shot President Ronald Reagan five months later. (Ironically, the attempted assassination took place at the same Washington Hilton Hotel where an assailant sought to shoot President Donald Trump and cabinet members on April 25.) To solve that problem, Handgun Control Inc., later renamed the Brady Center, championed a seven-day waiting period on handgun purchases, albeit without a background check. The NRA supported an instant background check on all firearm purchases from FFLs instead.

The result was the misnamed Brady Handgun Prevention Act of 1993. Its interim provision, 18 U.S.C. § 922(s), purported to conscript state law enforcement officers to conduct background checks on handgun buyers, who could be cleared right away or within no more than within five days. I was honored to argue Sheriff Jay Printz v. U.S. (1997), in which the Supreme Court held that Congress may not command the states to administer this (or any other) federal regulatory program.

The permanent provision of the Brady Act, § 922(t), established the National Instant Criminal Background Check System (NICS). NICS provides for immediate transfer of a firearm, but may delay approval of the transfer for not more than three days, if NICS does not find that the transfer would violate federal or state law. Because it created an instant check and no waiting period, the "Brady" Act may as well have been named the "NRA" Act. But that's all water over the dam now.

Stephen Halbrook is a Senior Fellow with the Independent Institute. His latest books are America's Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? He is also author of The Founders' Second Amendment, Securing Civil Rights, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France. He has written over 30 law review articles and has testified in Congressional hearings on firearm law bills. He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, National Association of Criminal Defense Lawyers, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. In D.C. v. Heller, he filed an amici curiae brief on behalf of a majority of members of Congress.

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From Taibbi v. Higgins, decided yesterday by Judge George Daniels (S.D.N.Y.):

This action centers around Owned: How Tech Billionaires Bought the Loudest Voices on the Left ("Owned" or the "Book"), a book authored by Higgins and published by Bold Type Books. Owned purports to explore "how tech elites and formerly left-wing journalists forged an alliance" to create a "new right-wing media ecosystem."

As relevant here, the Book depicts Plaintiff as one of several independent journalists whose politics shifted in recent years to attract a more conservative audience. Plaintiff began his writing career in post-Soviet Russia. In 2004, Plaintiff joined Rolling Stone, where he gained acclaim reporting on "the big banks and the excesses of Wall Street" during the 2007–2008 financial crisis. According to the Book, Plaintiff's image among liberal pundits declined after Plaintiff pushed back on allegations of Russian electoral interference in the 2016 presidential election and "old misogynistic writings resurfaced," The Book claims that "[a]fter his rejection by the left, [Plaintiff] turned to a new right-wing audience and became increasingly beholden to their priorities." In 2020, Plaintiff left Rolling Stone for Substack, a subscription-based newsletter service.

In 2022, Elon Musk purchased the social media website Twitter (now known as X). The Book states that Musk, in an effort "to expose the rot at the core of the entire company," sought out reporters to review internal company documents. These documents would purportedly "show[ ] how Twitter had responded to requests for censorship from the government and made decisions on questionable content." Musk eventually offered Plaintiff the opportunity to review the "Twitter Files," so long as he published his reporting on the platform.

Free Speech Libel

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[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

To the delegates of the Continental Congress, the Declaration of Independence did not reflect abstract ideas. To begin with, it was a pressing piece of administrative business after the vote for Independence on July 2, necessary for legitimizing the American struggle against King and Parliament, as well as a means of garnering foreign support, primarily from France. Yet it also was a covenant invoking the Creator and identifying a people that it hoped to unite. This covenant was instituted to defend against tyranny and maintain a specific political community in its traditional rights. Its sanction came from a righteous cause, and as Congress began to edit Thomas Jefferson's draft on July 2 and 3, it found itself not only tightening his argument, but also making more explicit the divine sanction that underpinned the document.

Grounded in natural rights theory, English common law, classical thought, and Judeo-Christian theology, the Declaration expressed the specific kinds of liberty and equality understood by eighteenth-century men of property and learning. It eloquently asserted the traditional liberties of Englishmen, drawing the distinction between positive rights granted by governments and natural rights derived from God. This was a defense of man "in virtue of his nature," as later expressed by the political philosopher Harry Jaffa. The Declaration described rights that could not be "alienated" or surrendered to any person or government, especially one failing to uphold its responsibilities to the people it sought to control.

A document so radical as to indict a king and declare all men equal was also extremely conservative. Liberty seemed a straightforward idea, but equality was a far more complicated concept than Jefferson's famous phrase expressed. Equality was not an end in itself, but was a feature of liberty, in the sense that humans had equal rights that had to be protected. In the political sphere, equality was necessary to the preservation of those God-given liberties that were both individual and communal.

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Back in 2013 I argued that under the Supreme Court's jurisprudence algorithmic editing is speech for First Amendment purposes, and in Moody v. NetChoice the Supreme Court squarely so stated, in the context of social media platforms' algorithmic prioritization of content.

Many people are unhappy about this jurisprudence, for understandable reasons. The invalidation of laws regulating websites' substantive algorithmic decisions is a striking, and arguably unsettling, prospect. Some of the critics argue for revamping First Amendment jurisprudence. That would extend far beyond the treatment of editorial choices, but others respond more directly to this jurisprudence – for example, treating social media platforms as state actors or common carriers.

In my forthcoming Content Moderation and the First Amendment, I discuss these possible responses designed to limit Moody, concluding that the strongest candidate is excluding from First Amendment coverage editorial judgments made by monopolists. Unlike the other possible responses, it avoids arbitrary distinctions and focuses on companies that, by hypothesis, lack significant competitors.

I also discuss a prominent possibility that would expand the Moody line of cases – that audience interests alone are sufficient to trigger First Amendment coverage, so that messages sent by AI without any meaningful human involvement (and thus no traditional speaker for First Amendment purposes) are treated as speech.

As I discuss in the conclusion, my inclination is not to adopt either of these possibilities. As to market power, I err on the side of avoiding ad hoc exceptions. And the prospect of protecting speech generated entirely by AI seems sufficiently transformative that I favor caution.

I end by suggesting that these issues will become more fraught insofar as social media platforms become more influential and the prospect of artificial general intelligence becomes more real. And cleavages in response to those two developments will likely better explain individuals' reactions to the treatment of algorithmic editorial decisions than more traditional First Amendment fault lines will. In this and in other areas, the ground is shifting beneath our feet, destabilizing current debates.

While governments around the world have imposed speech restrictions to fight misinformation and hate speech, they also have attempted to curb free speech for a less controversial reason: protecting children. But many of these restrictions stem from vague, unspecified, or speculative harms and corral wide swaths of speech that do not harm children. Censoring speech in the name of protecting children is not a terribly new phenomenon, especially in authoritarian countries. In 2012, for instance, Russia's parliament passed a law allowing the country's media censorship agency to unilaterally blacklist websites and take them offline, without any court approval. The lawmakers' justification was protecting children from online harm, but civil liberties groups correctly predicted that the government would use these powers to curb far more speech. In recent years, such efforts have moved beyond authoritarian countries and taken hold in Western democracies.

The United States has seen repeated attempts to curb speech in the name of saving the children. Although they have failed, governments have continued to try over many decades. In 1969, the US Supreme Court struck down the Des Moines, Iowa, school district's ban on black armbands worn to protest the Vietnam War, writing that "state-operated schools may not be enclaves of totalitarianism." In 1997, the Supreme Court invalidated much of the Communications Decency Act, which criminalized the online transmission of "indecent" content to minors, writing that the "interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." And in 2011, the court struck down a California law that banned sales of "violent video games" to minors, writing that the First Amendment does not give the government "a free-floating power to restrict the ideas to which children may be exposed."

The moral panic did not stop with those cases. Across the country, states are scrambling to address the harms associated with minors' use of social media. Many high-profile commentators and politicians have criticized social media for harming the mental health of teenagers, though there is substantial debate as to whether they have presented sufficient evidence of causation. In May 2023, then-Surgeon General Vivek Murthy issued an advisory on social media and youths' mental health: "The most common question parents ask me is, 'Is social media safe for my kids?' The answer is that we don't have enough evidence to say it's safe, and in fact, there is growing evidence that social media use is associated with harm to young people's mental health."

States have stepped in to try to regulate social media. Among the highest profile recent attempts is Utah's Minor Protection in Social Media Act, which the state legislature enacted in March 2024. The Utah law requires social media companies to "implement an age assurance system to determine whether a current or prospective Utah account holder on the social media company's social media service is a minor." For minors who have accounts, social media companies must impose a number of restrictions, including setting "default privacy settings to prioritize maximum privacy," limiting direct messaging abilities, disabling search engine indexing of their profiles, and limiting a minor's ability to share content with others. Those privacy settings cannot be changed without verifiable parental consent. The law also requires social media companies to disable functions that "prolong user engagement" for minors, such as autoplay functions.

Free Speech

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5/6/1776: Virginia Declaration of Rights by George Mason is published. Thomas Jefferson relied on this document when drafting the Declaration of Independence.

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My article with the above title has now been published online by the Journal of Law & Civil Governance at Texas A&M. The following is the Abstract:

This article concerns how a fake citation has misled courts to uphold "sensitive place" gun bans. New York State Rifle & Pistol Ass'n v. Bruen held that the Second Amendment presumptively protects conduct covered by its plain text. A state must justify its restriction by showing it to be consistent with America's historical tradition of firearm regulation. The original public understanding at the Founding is key to that question.

Post-Bruen, courts have sought to uphold restrictions that ban firearms in various "sensitive places" based on a misunderstanding of the Founding-era offense of going armed in a manner that terrorized the public. Antonyuk v. James upheld New York's place restrictions based on its claim that Founding-era Virginia and North Carolina laws banned going armed per se in fairs and markets. However, it conceded that Virginia only prohibited going armed "in terror of the Country," but maintained that North Carolina had no such element of the offense, adding that place restrictions in the late 19th century followed the North Carolina model. That historical tradition of regulation, the Second Circuit held, justifies New York's current law.

But Antonyuk has constructed a house of cards by ignoring actual North Carolina law and mistaking a privately published book for that law. In 1792, François-Xavier Martin published A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, which included the 1328 Statute of Northampton. Bruen commented that the Statute "has little bearing on the Second Amendment adopted in 1791," and in any event it was interpreted to apply only to going armed in a manner to terrorize others.

Antonyuk did not bother to research actual North Carolina law. In 1741, the colony of North Carolina enacted a law directing constables to arrest "all such Persons as, in your Sight, shall ride or go armed offensively"; by contrast, it further provided that "no Slave shall go armed with Gun, Sword, Club, or other Weapon." That same language was approved by an act passed in 1791 and continued to reappear in the statutes at least as late as 1855. Going armed was not a crime unless done so offensively, while going armed per se was a crime if the person was a slave.

Antonyuk further ignored North Carolina precedents. State v. Huntly recognized the common-law offense of going armed to terrify, but said that "the carrying of a gun per se constitutes no offence." That reading of the law was repeated over and over as late as 2024.

Courts have been misled by the citation of Martin's Collection as a "law" at the highest level. Dissenting in Bruen, Justice Breyer cited Martin as the authority for the proposition that "North Carolina enacted a law whose language was lifted from the Statute of Northampton virtually verbatim (vestigial references to the King included)." It boggles the imagination to think that the state would enact a law with several references to "the King" sixteen years after the Declaration of Independence.

It is unclear where the rumor started that Martin's book was a "law," but the Duke Center for Firearms Law includes it in its Repository of Historical Gun Laws under the citation "ch. 3, N.C. Gen. Stat. (Francois X. Martin 1792)." Chapter 3 of N.C. General Statutes in 1792 included no such provision. Another fake citation for this "law" that has been cited is "1792 N.C. Laws 60, 61 ch. 3," which does not exist.

The Ninth Circuit, in Wolford v. Lopez, recognized that Bruen rejected the purported place restrictions in North Carolina law, but upheld them anyway despite no Founding-era tradition of regulation. Yet the Third Circuit swallowed Antonyuk hook, line, and sinker to uphold New Jersey's extensive place bans, including the misrepresentation that Martin's book was a North Carolina "law," in Koons v. Attorney General of New Jersey. And then a different panel of the Second Circuit, in Frey v. City of New York, admitted that "Bruen undermines" Antonyuk's interpretation, but upheld other parts of New York's "sensitive place" bans despite no Founding-era tradition of regulation.

This matter is not about a single, erroneous citation with no consequence. In Antonyuk, the Second Circuit built its entire theory of Founding-era analogs on sand in order to comply with Bruen's directive to find a historical tradition of regulation that supported New York's wide restrictions. That decision has since influenced two other circuits, covering three states, to adopt the same flawed approach—and others may soon follow. These decisions are based on a badly mistaken analysis of America's historical tradition of firearm regulation and should be overturned.

[Note: The Third Circuit has granted rehearing en banc in Koons, thus vacating the panel decision.]

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One of the most explosive claims from Molly Hemmingway's new books concerns Dobbs. As we all recall, after the leak of the Dobbs draft on May 2, 2022, it became apparent that the Justices would face serious security threats. Indeed, a deranged liberal traveled from California to D.C. with weapons and made it to the threshold of Justice Kavanaugh's home. (Sounds familiar, doesn't it?) Yet, after all this happened, the Dobbs opinion was not released early. The Court held onto it until June 24. There was no obvious effort to expedite the release of the opinion. And all told, there were few changes made between the leaked draft and the final published opinion. At the time, some speculated that there might be changes to the opinion. Or perhaps the majority flipped. Yet, the five held strong. What then was the holdup?

Hemmingway reports that Justices Sotomayor, Kagan, and Breyer refused to expedite the release of the opinion. (This vignette comes after the leak but before the assassination attempt):

On Thursday, May 12, the justices gathered in conference to go through the circulating opinions and set the dates for their release. Justices grade the decisions based on when they will be ready for release. An "A" is for those decisions and dissents that are done, "B" for those that are almost done, and "C" for those not near completion. Dobbs was graded a "C."

The majority opinion had been done for more than three months and was waiting only for the dissents. Alito asked the dissenters to make the completion of their dissents their priority because delay of the decision was a security threat. Abortion supporters had an incentive to kill one or more of the justices in the majority to change the outcome. The dissenters demurred. Gorsuch spoke up, asking for a date by which they might be done. They would not give a date.

Following the conference, Justice Elena Kagan visited Justice Stephen Breyer's office. Though he had not said he would accommodate the justices whose lives were at risk by getting out a dissent, he was the member of the liberal bloc most willing to do so. Fiercely liberal in his jurisprudence and in strong disagreement with the majority decision, he nevertheless was a gentleman and a friend to all on the Court. Kagan remonstrated with Breyer not to accommodate the majority, screaming so loudly, observers noted, that the "wall was shaking."

I'm not quite sure how stone walls were shaking, but I get the picture.

After the assassination attempt, the Justices reached something of a compromise:

The dissenting justices eventually agreed to complete their Dobbs dissent by June 1 in return for an extension to June 15 of the deadline for their majority opinions in other cases. When the dissent was finally submitted, however, it cited the decision in the high-profile Second Amendment case New York State Rifle & Pistol Association v. Bruen, which would not be released until the end of the term. The release of the Dobbs decision, therefore, was dragged out until June 24, the day after Bruen was released.

Did Dobbs have to cite Bruen? Was this just another attempt at delay? This is the sort of claim that one day will be revealed in the papers of the Justices. I hope to live long enough to see them.

For now, it seems that Justice Alito may have addressed this situation, perhaps indirectly.

Justice Alito included an unusual footnote in his Callais concurrence:

The dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional.*

*That constitutional question was argued and conferenced nearly seven months ago.

Why would Justice Alito write this? What difference does it make that Callais was argued in October and conferenced shortly thereafter? The implication, I think, is that the Callais dissent was slow-walked. But why would it be slow-walked? As all know, the longer the opinion would take to publish, the harder it would be for Republicans to implement the order for the 2026 midterms. I'm sure Alito's majority opinion was prepared quickly. And as I noted last week, the majority barely responds to Justice Kagan's dissent, so there was not much back-and-forth. The delay, Alito insinuates, was from the Court's liberals. And why would they delay? Perhaps Justice Kagan needed seven months to perfect three consecutive sentences that begin with the words "I dissent because." Or, there was an effort to help Democrats. Who was sacrificing principle for power?

On X, Mike Fragoso asks, "Did Mollie's book excerpt force Kagan's hand in Callais? I guess we'll never know." The Wall Street Journal likewise observes, "The footnote suggests some pique by Justice Alito about the Court's long gestation on Callais, and understandably so since Justice Jackson is accusing the majority of playing politics."

Of course, if Justice Jackson went along with these dilatory tactics, she has some chutzpah for complaining about the effort to issue the mandate forthwith. But for the KBJ delay in Callais, Louisiana could have received the judgment before the election began, an this entire dispute would amount to nothing.

Justice Ginsburg was known as the Notorious RBG. Notoriety was a perfect adjective for Justice Ginsburg. She was famous, but not always in a good way. She was, well, notorious. And Justice Ginsburg leaned into that edgy persona--or did the edgy persona shape Ginsburg?

For some time, I've been thinking of the right nickname for Justice Jackson. It hit me today: the Laborious KBJ. The most salient feature of her tenure is making others do more work. And that work doesn't actually serve any purpose, other than indulging Justice Jackson. She certainly isn't changing any minds on the Court, and it isn't clear she is changing any hearts outside the Court.

Consider a few data points. During oral argument, she speaks more than any other Justice by a significant number. According to Adam Feldman's analysis from March, Justice Jackson spoke more than 53,000 words from the bench this term.

The next closest totals were Justices Sotomayor and Kagan with 35,000 and 30,000, respectively. If you total the words spoken by Chief Justice Roberts, and Justices Thomas and Barrett (about 48,000), you still have less than Justice Jackson alone. Or you could total the words spoken by Justices Kavanaugh and Gorsuch (52,198) and it is still less than Justice Jackson.

Feldman measures the data in a different way. Justice Jackson had the highest share of words spoken in nine of the top ten longest arguments this term. More than 1 out of every 4 words spoken by a Justice comes from Justice Jackson.

That sort of dominance is not normal.

At least when Justice Breyer would ask questions for pages on end, it was entertaining. I now find myself skipping the audio whenever Justice Jackson starts asking a question. It just is not a good use of my time. The other Justices, alas, lack that luxury. As many reporters have observed, when Justice Jackson begins her lengthy questioning, the other Justices take deep breaths, roll their eyes, and disconnect.

Then there are Justice Jackson's solo dissents. In a number of cases, she takes a position so far to the left that not even Justices Sotomayor and Kagan want to join her. Most recently, Justice Jackson was all alone in charging the majority with partisanship (more on that dissent shortly). And that dissent compelled Justice Alito to write, on very short notice, a concurrence that called her out. Our Circuit Justice has been very busy this week.

Justice Jackson also caused waves by slow-walking emergency petitions from the First Circuit. She took a long time to even call for a response in Libby v. Fectau, where the Justices ultimately granted emergency relief. Contrast this KBJ delay with how quickly Justice Alito granted an administrative stay and called for a response with the Mifepristone case. Like I said, our Circuit Justice is on point.

The Laborious KBJ. There you go.

In the spirit of my friend Ilya Shapiro, could you imagine if Justice Kagan had Justice Srinivasan as a wingman?

From a long opinion today by Judge Waverly Crenshaw (M.D. Tenn.) in Poe v. Lowe:

Poe, a male Vanderbilt student, made social media posts about another male Vanderbilt student, Roe, and his sexual behaviors with females. [Citing court filing] showing posts by Poe's Yik Yak account, including stating that "[Roe] is a rapist" and "[Roe] slipped me a roofie this fall, but I just wasn't able to definitively proove [sic] it. When I brought it up to some of the [] brothers [from Roe's fraternity] they tried to gaslight me about it" ….

Poe was not alone—a number of posts were made about Roe by other people, including other Vanderbilt students. [Citing court filing] containing Yik Yak posts by a female Vanderbilt student, L.N., including stating that she had "personal experience" with Roe and "he is a RAPIST, that is the truth and if you don't believe it after so many girls have said it, there is nothing I can do to convince you" …. Once this came to Vanderbilt's attention, Bourgoin, Vanderbilt's Director of Student Accountability, Community Standards, and Academic Integrity, opened a disciplinary case against Poe, charging him with three violations of the Student Handbook …: disorderly conduct, harassment, and impersonating a University official or any other person….

Poe's appeal was denied by Vanderbilt's Chair of the Appellate Review Board (Lowe), and Poe was suspended for a year. Poe, who had attempted suicide after hearing of his punishment, sued Vanderbilt on various theories.

The court allowed Poe's negligence claim to go forward based on how the disciplinary outcome was reported to him:

There is no dispute that Defendants were on notice of Poe's serious mental health issues. [Citing record document] (Poe's mother emailing Bourgoin and Clapper {[Vanderbilt's] Director of Student Care Network and Student Care Coordination} that Poe "is now talking suicide We are absolutely convinced an adverse decision now will take his life"). Jamerson even testified that he had assessed Poe's suicide risk at "moderate-to-elevated." Defendants did not accommodate Poe's mother's request to move the outcome call one week. Yet, they still chose to engage in care planning with her to mitigate the risk of harm to Poe. [Citing record document] (Jamerson testifying that he "felt it was safe to move forward with adding additional precautions like having [Clapper] available to be on the [outcome] cal1, who is a licensed clinical social worker, also notifying the mom of when the date would be so that the mom was aware of when it was coming out.").

Apparently, Defendants wanted Poe to have his mother with him during the outcome call, as evidenced by the email to his mother with the target date for the meeting. Clapper also testified that when she and Bourgoin began the outcome call with Poe, she asked Poe if his mother was there. Despite Poe telling them he lied to his mother {about the scheduling of the outcome call and [told] her that it was the following day}, Bourgoin and Clapper proceeded with the outcome call.

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On April 29, the Supreme Court decided Callais. That same day, the non-African American Plaintiffs asked the Court to issue the judgment immediately. This request should not have been surprising. Louisiana is in the middle of the election, and time is of the essence. Justice Alito called for a response to be filed on April 30. The NAACP filed a response. I suggested that the savvy strategic move would have been to file at the same time a motion for reconsideration. To be sure, the rules provide 25 days to file such a motion, but in a fast moving case it would have been prudent to file immediately. The NAACP did not file such a motion. Instead, the opposition stated that they were thinking about it:

The Robinson Appellants oppose Appellees' Application for expedited issuance of the Court's judgment in this matter (the "Application"). This Court should afford Appellants the opportunity to consider seeking rehearing in the ordinary course. See Supreme Court Rule 44.1 (allowing 25 days for a party to seek rehearing of any judgment of this Court).

What was there to think about? The case is on the emergency docket. There is not time for the usual 25 day period to leisurely consider the matter. Again, I think there was a strategic miscue here. The NAACP lost a race on the shadow docket. And what would the NAACP have argued in such a motion for reconsideration? It would be clear they were (to use Justice Alito's words) trying to "run out the clock." The delay is the point.

Today, the NAACP has formally asked the Court to withdraw the judgment to give the NAACP the full period to file a motion for reconsideration.

The sole basis cited in the Order for granting Appellees' Application and issuing the judgment forthwith was that "[Robinson Appellants] have not expressed any intent to ask this Court to reconsider its judgment." However, in the second sentence of Appellants' opposition to the Application, Appellants requested "the opportunity to consider seeking rehearing." See Robinson Appellants' Response to Appellees' Application for Issuance of a Copy of the Opinion and Certified Copy of the Judgment Forthwith, at 2, No. 25A1197 (Apr. 30, 2026). In support, Appellants cited Rule 44.1, noting that it allows parties twenty-five days to seek rehearing of any judgment of this Court. Appellants intend to request rehearing in this case, and, accordingly, respectfully request that this Court recall the judgment, reconsider its order granting the Application, and deny the Application. Alternatively, Appellants respectfully ask the Court to recall the judgment and provide them fifteen days from the date of its decision in this case, or until May 14, 2026, to seek rehearing.

I think this ship has sailed. Proceedings are already ongoing in the lower court. Justice Jackson made the case for why the judgment should not be issued forthwith. No one joined her. I don't see much ground for reconsideration here.

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