In reviewing the Supreme Court oral argument in United States v. Barbara, in which the justices considered the lawfulness of President Trump's anti-birthright-citizenship Executive Order, I was struck by an exchange in which a fairly obvious question seemed to catch the SG off guard.

Justice Kavanaugh asked the Solicitor General about the extent to which Congress might have authority to modify the contours of birthright citizenship, and the SG's response suggested he had never pondered this question before.  Here is the transcript of exchange:

JUSTICE KAVANAUGH: Of what relevance, if any, do you think Section 5 of the Fourteenth Amendment has here that gives Congress the power to enforce the article, the Fourteenth Amendment, by appropriate  legislation? Does that give Congress room here, or do you not think so?

GENERAL SAUER: I --I do think that a ruling in our favor would leave room for Congress. I --I don't think you have to rely on Section 5. I think that Congress has its own inherent power to grant citizenship by statute. So, if the Court were to rule in our favor for the classes of individuals that they say should be covered, Congress has the latitude to do that.

JUSTICE KAVANAUGH: How much room do you think Section 5 gives, if any --and it may not be any --Congress to interpret the phrase "subject to the jurisdiction thereof" or to define that? Does it --is that --is that relevant at all?

GENERAL SAUER: It's a great question, and I'm thinking about it for the first time. I assume it would be governed by the congruence and proportionality test from this Court's case law. How that would apply here, I don't know. And I don't think it's presented because our contention is that the statute means exactly the same thing. If anything is congruent and proportional, it's that. And I think the Court held that in United States against Georgia.

I understand that the SG is trying to defend the Executive Order, and it is quite unlikely that Congress is going to enact legislation on birthright citizenship any time soon, but I was nonetheless quite struck to hear the SG confess he had not previously considered the extent to which Congress might have the power to define who is "subject to the jurisdiction" of the United States for purposes of birthright citizenship, as this would seem to be quite relevant to the legal issues in play.

I previously blogged on the oral argument in Barbara here.

The post The Birthright Citizenship Question that Stumped the Solicitor General appeared first on Reason.com.

I would like to take this opportunity to announce that I will be a Visiting Professor at University of Virginia School of Law during the Fall 2026 semester. It is an honor to be invited to visit at one of the nation's very top law schools. I know some UVA faculty already, and look forward to meeting more faculty and students while there.

During that semester, I will continue to be an employee of the mighty Commonwealth of Virginia (both UVA and my permanent home, George Mason University, are Virginia state universities). I will also continue my work as Simon Chair in Constitutional Studies at the Cato Institute. Similarly, I will continue to blog regularly right here at the Volokh Conspiracy site.

The post Upcoming Visiting Position at University of Virginia appeared first on Reason.com.

Howe [a court-appointed criminal defense lawyer appealing a drug trafficking sentence] filed two briefs—a principal brief and a reply—on behalf of Farris. Upon our initial review of the case, we began to suspect that Howe's briefs were generated, at least in part, by artificial-intelligence software. The first tell was the file name of the principal brief: "CoCounsel Skill Results." CoCounsel is the name of Westlaw's internal artificial-intelligence platform. From our vantage point, that file-name abnormality suggested that Howe's brief might have derived not from Howe's independent work, but directly from artificial-intelligence software.

Further suspicions arose when, during our substantive review of the briefs, we discovered three problematic citations:

Page 4 of the principal brief states, "The Guidelines' commentary makes clear that '[m]ere presence or knowledge of the offense is not sufficient to make a person a participant.' U.S.S.G. § 3B1.1 cmt. n.1."

Page 10 of the principal brief states, "The Sixth Circuit has reversed role enhancements on similar facts. In Washington, the Court held that 'simply facilitating the offense without exercising decision-making authority is insufficient.' 715 F.3d at 985."

Page 10 of the principal brief states, "Likewise, in Anthony, the Court vacated a § 3B1.1 enhancement because '[t]here was no evidence [the defendant] directed or supervised anyone else.'"

The reply brief repeats the latter two quotations. Each of these citations references genuine legal authorities. But the purported direct quotations do not appear in their cited sources. And upon deeper review, we were unable to locate any relevant legal authority that contained the same or substantially similar language as the above quotations. So, it did not appear that the misattributions involved mere citation mix-ups or transcription errors.

Moreover, the briefs Howe filed misrepresent the holdings of both United States v. Washington, 715 F.3d 975 (6th Cir. 2013), and United States v. Anthony, 280 F.3d 694 (6th Cir. 2002). In Washington, this Court upheld an enhancement under § 3B1.1—that enhancement was not reversed, as Howe's principal brief asserts. And although the Court did vacate a § 3B1.1(a) enhancement in Anthony, it did so narrowly based on the proper counting methodology applicable to that enhancement—something irrelevant to Farris's appeal. Indeed, contrary to Howe's briefs, the defendant in Anthony conceded his role as a director and supervisor….

Howe admits that he used artificial intelligence to prepare both briefs he filed. According to Howe, he directed an unnamed "staff" member to upload district court documents to Westlaw's CoCounsel program to create a first draft of the principal brief. He then worked in that same file for six hours to supplement the draft produced by artificial intelligence. Howe notes that he repeated that same process for the reply brief.

By way of attempted explanation, Howe claims that this appeal was his first time utilizing Westlaw CoCounsel "in this way for a Court of Appeals brief." And he says that he was otherwise unfamiliar with the program. Howe's response states that his law office first acquired Westlaw CoCounsel in August 2025 … and that no artificial-intelligence software was used to prepare documents before that court. Howe notes that he has never been disciplined over his 40-year career, whether for improper use of artificial-intelligence software or otherwise.

Howe agrees that the briefs he filed before this Court contain legally erroneous content that was generated by artificial intelligence. He concedes that the three inaccurate quotations identified above were the product of artificial intelligence, that they do not appear in any legal authorities, and that his briefs misrepresented the holdings of both Washington and Anthony. Howe admits that those errors occurred because he failed to adequately review and verify the draft brief produced by artificial intelligence, and he accepts full responsibility for that error….

New technologies present significant promise for the legal field. But all in the legal profession must be clear eyed about technology's potential pitfalls. That mandate is especially critical in today's rapidly evolving artificial-intelligence landscape.

Howe claimed that he was "not familiar" with the CoCounsel program and did not scrutinize its incorporation into the briefing process. The risks of reflexively relying on artificial intelligence in the practice of law, however, are well documented. Attorneys should not utilize technology without knowing the ways in which it can be misused or contribute to inaccuracies. That remains true even when new tools are sponsored by trusted legal technology providers.

Further, attorneys who choose to use artificial-intelligence tools must do so in a manner consistent with their ethical obligations…. [R]elevant steps may include reviewing and validating content produced by artificial intelligence; considering whether to disclose the use of artificial intelligence to clients or obtain informed consent; safeguarding confidential client information and preserving attorney-client privilege; implementing firm-wide policies governing the use of artificial intelligence; adhering to ethical billing practices when using artificial-intelligence tools; and keeping current with jurisdiction-specific guidelines.

New technologies, moreover, are no substitute for tried-and-true safeguards managed by practicing attorneys. Attorneys have an ethical obligation to verify the citations and propositions they submit to courts; that obligation reflects duties of competence and candor that apply no matter the tools attorneys use. So, attorneys who rely on artificial intelligence must remain diligent in supervising their work product and carefully examine the accuracy of every citation they present to this Court. Here, Howe's reliance on "staff"—rather than himself or another attorney—to supervise the artificial-intelligence-generated work product fell short of his obligations as attorney of record.

That Howe's briefs cited real legal authorities—as opposed to "hallucinations" featuring fictitious cases—does not absolve him. Howe's failure to verify the artificial-intelligence output still resulted in the submission of false quotations and misleading legal arguments to this Court. Again, attorneys' professional duties demand more.

We appreciate Howe's timely response to the Court's show-cause order as well as his candor in acknowledging his improper use of artificial intelligence. And we take note that this appears to be the first time a court has had occasion to address Howe's misconduct in his practice of law. But the fact remains that Howe committed inexcusable transgressions during the appellate phase of this case. And that misconduct had consequences. Among other things, it necessitated a significant use of judicial resources to investigate the suspected artificial-intelligence improprieties, coordinate a response, and facilitate additional steps of these appellate proceedings.

As we order below [details omitted], Howe's misconduct also warrants appointment of different appellate counsel to file new briefs—further delaying resolution of Farris's criminal appeal. That Howe was serving as court-appointed counsel for an indigent defendant through a publicly funded program only compounds the harm to our system of justice.

Based on the above, we conclude that the following measures are appropriate:

1. Howe shall not be compensated under the Criminal Justice Act for his time spent on this appeal.
2. The Clerk of the Court shall forward a copy of this opinion to the Chief Judge of the Sixth Circuit Court of Appeals to consider disciplinary proceedings under Sixth Circuit Local Rule 46.
3. The Clerk of the Court shall serve a copy of this opinion on (i) the Chief Judge of the United States District Court for the Eastern District of Kentucky, (ii) the Clerk of the United States District Court for the Eastern District of Kentucky, and (iii) the Disciplinary Clerk for the Kentucky Bar Association….

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The United States has filed a Response to the District of Columbia's Petition for Rehearing En Banc in Benson v. United States, in which the D.C. Court of Appeals held the District's magazine ban to violate the Second Amendment.  Applying Heller and Bruen, the court held that magazines "are unquestionably arms, they are in not only common but ubiquitous use for lawful purposes, and there is no history or tradition of blanket bans on arms in such common use…."  The U.S. agrees with that, but argues that the ban should have been held unconstitutional as applied, not facially.

Mr. Benson possessed a 30-round magazine, but that number is statutorily irrelevant, as the District bans any magazine holding over 10 rounds.  The court explained:

The 11+ magazine ban is facially unconstitutional because it is unconstitutional on its plain terms, not just in some idiosyncratic applications, and it is not readily susceptible to any judicial narrowing that avoids its constitutional infirmities. The fact that it captures some conduct that hypothetically could have been proscribed by a more narrow statute is beside the point. It might be that a ban on 30-round magazines, or on 100-round magazines, would pass constitutional muster. But in no sense does that mean that this law could be constitutionally applied to prosecute those who possess those larger magazines. Because this law does not require the government to prove those higher capacities, it has not drawn the line in a constitutionally permissible place.

The United States objects based on the theory that the statute is not unconstitutional in all applications, such as a ban on a 100-round magazine might be.  It states: "In other words, because the statute had some unconstitutional applications—namely, banning (say) 12-round magazines—the entire statute has to fall. That analysis gets the Rahimi inquiry backwards: the statute should survive if it 'is constitutional in some of its applications.'"  (Emphasis added.)  But what the U.S. calls "the statute" is not this statute.  The actual statute here includes no constitutionally-permissible application.  By contrast, in Rahimi itself, the law was not unconstitutional in all applications because the defendant himself was found to represent "a credible threat to the physical safety" of an intimate partner or child, the exact terms of the law.

The Supreme Court in Heller held the D.C. handgun ban to be unconstitutional in all applications, even though fully-automatic handguns or possession by a felon could be banned under some other laws.  Bruen held New York's carry ban unconstitutional in all applications to be violative of the Second Amendment, even though carrying of handguns could be banned in courts under separate laws.

As the U.S. brief points out, some appellate courts have held that the ban on felon possession, 18 U.S.C. § 922(g)(1), may be unconstitutional as applied, but none have held it unconstitutional in all applications.  But no one disputes that some felony crimes – take murder for example – are fully justified by Founding-era analogues.  That example just doesn't work with D.C.'s magazine ban, because it specifies no constitutional application.

The U.S. disagrees with Benson's further holding that the magazine ban "infected" the convictions for the defendant's failure to register and to obtain a carry license for the firearm, negating those convictions as well.  The Benson court based that conclusion on the following findings: the registration application required the applicant to state the "No. of Shots" for the firearm being registered); the D.C. Code requires an applicant for a license to carry a pistol to prove that the pistol is registered; and Hanson v. D.C. (D.C. Cir. 2024) verified that the police would not register a firearm with an over-ten-round magazine.  Without being registered, ammunition could not be possessed for the firearm.

But that was not all.  The Benson court made clear that it had been factually unchallenged that Benson could not have registered or licensed his firearm as follows (footnote 19):

The District does not dispute that Benson could not have registered his firearm with its 11+ magazine, but suggests that Benson could have outfitted his receiver with a magazine holding 10 or fewer rounds, and then registered it. Maybe so, but we do not think it was incumbent on Benson to engage in that subterfuge where he in fact intended to possess a firearm with an 11+ magazine. We have concluded Benson had a constitutional right to possess the 11+ magazine that his firearm was actually equipped with, and it was impossible for Benson to register a firearm with such a magazine, which is enough for us to conclude that his other convictions are infected by the unconstitutionality of the magazine-capacity ban.

The U.S. brief disputes what the court found based on the evidence and arguments by the parties in the case by pointing out that the D.C. Code does not explicitly deny registration based on an 11+ magazine.  It adds that the police "could confiscate the prohibited large-capacity magazine while registering the firearm itself," ignoring that the police would have arrested him for the violation.  Finally, the police have removed the requirement to state the "No. of Shots" purportedly "to eliminate any ambiguity on this point," or more likely to buttress the District's arguments in this case.  But that question was on the application when Benson was arrested.

According to the U.S. brief, Benson "has triggered significant public safety concerns," as "we continue to prosecute defendants who carry pistols without a license or who possess unregistered firearms—even when those pistols and firearms have large-capacity magazines inserted into them. Now, Benson's reasoning suggests that hundreds of pending gun cases involving pre-Benson firearms possession would have to be dismissed."

But what's the "public safety concern" with possession of a firearm that's not registered?  No state nationwide requires registration of every firearm.  In Heller II (D.C. Cir. 2011), D.C. tried to justify registration partly on the basis that it "permits officers to charge individuals with a crime if an individual is in possession of an unregistered firearm," including when there's nothing else to charge the person with.  In discovery, D.C.'s officer in charge of registration admitted that the system failed to solve any crime.  Dissenting, then-Judge Brett Kavanaugh wrote:

D.C.'s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know whether the residents have guns. But that is at best a Swiss-cheese rationale because police officers obviously will assume the occupants might be armed regardless of what some central registration list might say. So this asserted rationale leaves far too many false negatives to satisfy strict or intermediate scrutiny with respect to burdens on a fundamental individual constitutional right.

While the courts have not questioned the government's power to require a license to carry, the Benson court found that such license would not be issued unless the firearm was registered.  The registration and licensing requirements were thus "infected" as a matter of law, regardless of policy arguments about "public safety" and pending prosecutions.

Aside from the above issues, to its credit the U.S. brief states: "The United States moved to vacate Benson's conviction for possession of a large-capacity ammunition feeding device, and we are no longer prosecuting violations of that statute."  That's a positive step for the Department of Justice that is consistent with its other litigation in support of Second Amendment rights, not the least of which is the complaint the Civil Rights Division filed in U.S. v. D.C. challenging the District's ban on semiautomatic firearms.

Moreover, in August 2025, D.C. U.S. Attorney Jeanine Pirro announced that, according to a memo from the Department of Justice and the Office of Solicitor General, the District's ban on carrying rifles and shotguns conflicted with Heller and Bruen, thus precluding prosecution of persons for possession of a registered rifle or shotgun.  Prosecution of felons for such possession, of course, would continue.

* * *

On April 2, the Honorable Roger T. Benitez retired from the Southern District of California.  In Duncan v. Bonta (S.D. Cal. 2023), Judge Benitez issued one of the most comprehensive Second Amendment opinions ever, declaring California's ban on magazines holding over ten rounds unconstitutional.  The Ninth Circuit en banc reversed.  The cert petition is pending before the Supreme Court, where it has now been relisted at least nine times, most recently for the conference of April 2.  Keep your fingers crossed.

The post Second Amendment Roundup: U.S. Supports Rehearing in D.C. Magazine Ban Case appeared first on Reason.com.

Anthropic PBC develops Claude, a family of advanced artificial-intelligence models. In 2024, the Department of Defense (which now calls itself the Department of War) began using Claude in connection with various military operations.

But on March 3, 2026, Secretary of War Pete Hegseth determined that procuring AI goods or services from Anthropic presents a supply-chain risk to national security under 41 U.S.C. § 4713. The impetus for the determination was Anthropic's refusal to contractually authorize the Department to use Claude for mass domestic surveillance or lethal autonomous warfare. As a result, the Department has canceled its contracts with Anthropic, begun to remove Claude from its systems, and prohibited its other contractors from using Anthropic as a subcontractor on work performed for the Department. The Department has not prohibited contractors from using Claude for work performed for entities other than the Department.

Anthropic seeks review of the Secretary's determination under section 4713 to bar the company from providing goods or services to the Department. It claims that the determination was contrary to law, unconstitutional, and arbitrary. Anthropic seeks a stay pending review on the merits or, in the alternative, expedited consideration of the merits.

Four considerations govern whether Anthropic is entitled to the extraordinary remedy of a stay pending review: (1) whether it has made a "strong showing" that it is likely to succeed on the merits; (2) whether it will suffer irreparable harm without a stay; (3) whether a stay will injure the Department; and (4) whether the public interest supports a stay. Because the respondents are government agencies or officers, the third and fourth factors merge into a single inquiry.

Anthropic's petition raises novel and difficult questions, including what counts as a supply-chain risk under section 4713 and what qualifies as an urgent national-security interest justifying the use of truncated statutory procedures. In addition, we must consider whether Anthropic's petition targets a "covered procurement action" reviewable at this time under the governing judicial-review scheme, 41 U.S.C. § 1327(b). The parties vigorously contest many of these issues, and we have found no judicial precedent shedding much light on the questions presented. But we do not broach the merits at this time, for Anthropic has not shown that the balance of equities cuts in its favor.

We begin by acknowledging that Anthropic will likely suffer some degree of irreparable harm absent a stay. Anthropic casts its interests partly in constitutional terms, but those interests seem primarily financial in nature. Anthropic seeks a pre-deprivation hearing under the Fifth Amendment, yet such a hearing would be valuable to the company only as a means for preserving financially beneficial contracts. Anthropic also claims ongoing harms from retaliation for its constitutionally protected speech. But Anthropic does not show that its speech has been chilled during the pendency of this litigation, so these ongoing harms are also financial effects of the Department's actions against the company.

The precise amount of Anthropic's financial harm is not fully clear. Anthropic's CEO, Dario Amodei, has publicly stated that the "vast majority" of Anthropic's customers will be "unaffected" by the designation, since it "plainly applies only to the use of Claude by customers as a direct part of contracts with the Department of War, not all use of Claude by customers who have such contracts." And some record evidence suggests that Anthropic has financially benefited from its refusal to accede to the Department's request for permission to deploy Claude for all lawful uses. Add. 240 (Amodei statement to employees that "the general public or the media … see us as the heroes (we're #2 in the App store now!)"); see also Scanlon, In Graphic Detail: How Anthropic's Pentagon Refusal Is Paying Off in Downloads, Brand Trust, and Enterprise Deals, Digiday (Mar. 9, 2026), https://perma.cc/2B54-855B ("The $200 million [Anthropic] walked away from by refusing the Pentagon's demands may turn out to be the best marketing spend in Silicon Valley for years.").

Nonetheless, Anthropic has documented some potentially significant financial losses, particularly if other federal agencies follow the Department's lead in removing Claude from their own supply chains. Absent any mechanism for Anthropic to recover these losses if it should prevail on the merits, these financial harms qualify as irreparable.

There are weighty governmental and public interests on the other side of the ledger. Most obviously, granting a stay would force the United States military to prolong its dealings with an unwanted vendor of critical AI services in the middle of a significant ongoing military conflict. As the Department explains, Anthropic has now conclusively barred uses that the Department recently deemed essential. See Add. 223 (Hegseth memo to senior Department leadership, dated Jan. 9, 2026, stating that "[t]he Department must also utilize models free from usage policy constraints that may limit lawful military applications").

Moreover, the Department relies on Anthropic to provide regular updates to Claude, which contains built-in "safeguards" designed to prevent uses that Anthropic considers harmful. Furthermore, Anthropic and the Department recently disagreed about uses of Claude for military operations that the Department claimed were permitted under the existing usage policy. And the Department's relationship with Anthropic has deteriorated to the extent that Anthropic's CEO has publicly described the Department's statements regarding the controversy as "completely false" and "just straight up lies."

Under these circumstances, requiring the Department to prolong its use of Anthropic's AI technology, whether directly or through contractors, strikes us as a substantial judicial imposition on military operations. And, of course, we do not lightly override the Department's judgments on matters involving national security. See, e.g., Trump v. Hawaii (2018).

In our view, the equitable balance here cuts in favor of the government. On one side is a relatively contained risk of financial harm to a single private company. On the other side is judicial management of how, and through whom, the Department of War secures vital AI technology during an active military conflict. For that reason, we deny Anthropic's motion for a stay pending review on the merits. { Our decision to deny a stay makes it unnecessary to address the government's suggestion that the relevant judicial-review provision, 41 U.S.C. § 1327(b), deprives us of authority to grant one.}

Nonetheless, because Anthropic raises substantial challenges to the determination and will likely suffer some irreparable harm during the pendency of this litigation, we agree with Anthropic that substantial expedition is warranted.

The court has therefore set a quick briefing schedule, to be followed by oral argument for May 19; it instructs the parties to address:

• whether we have jurisdiction over Anthropic's petition under 41 U.S.C. § 1327, which provides for review of "covered procurement actions" taken under 41 U.S.C. § 4713;
• whether the government has, through the Determination or Notice or otherwise, directed or taken specific covered procurement actions against Anthropic;
• whether, and if so how, Anthropic is able to affect the functioning of its artificial-intelligence models before or after the models, or updates to them, are delivered to the Department.

I'm trying to make certain how this interacts with the Mar. 26 preliminary injunction issued by Judge Rita Lin (N.D. Cal.) in the apparently parallel federal case filed by Anthropic in that court; see here for Monday's status report from the government in that case. But I thought I'd note the D.C. Circuit action in any event.

The post D.C. Circuit Declines to Stay Department of War's "Supply-Chain Risk" Designation of Claude appeared first on Reason.com.

McGillvary alleges that Rolling Stone defamed him in a 2023 article, "DARK TALE: A Hatchet Wielding Hitchhiker Went Viral. Then He Killed Someone," that, by way of reviewing a forthcoming television documentary, described his involvement in thwarting a high-profile attack in 2013 (for which he was cleared of any wrongdoing) and in committing a later unrelated murder for which he was convicted and is now serving a fifty-seven-year sentence….

McGillvary contends that the article contained four libelous statements: (i) "[t]hose who knew [McGillvary] describe [him] as prone to fits of rage" (the "fits of rage" statement); (ii) "[McGillvary] tried to start a fire in the family home and was subsequently sent into foster care at the age of 13" (the "fire starter" statement); (iii) "[McGillvary] began bragging to Fresno locals that he'd handed [McBride] a joint laced with a number of drugs" (the "laced-joint" statement); and (iv) McGillvary told McBride "that they were both ghosts" and encouraged him to drive his truck into a crowd of people "right now" since "nobody could see us" (the "ghosts" statement). We address each statement in turn.

We agree with the district court that the "fits of rage" statement was not defamatory because it was non-actionable opinion…. The statement read: "Those who knew him describe … McGillvary[ ] as prone to fits of rage." The article went on to quote McGillvary's cousin, who said that he "honestly believe[s McGillvary] has mental issues." Taken in context, the "fits of rage" statement clearly signaled to readers that it was relaying the opinions of those who knew McGillvary, not conveying a historical fact about McGillvary's personality or behavior. At the very least, the statement would signal that the author was conveying an opinion that he had formed based on statements provided by others.

The "fire starter" statement was likewise not defamatory, but for a different reason. The article stated that McGillvary "tried to start a fire in the family home and was subsequently sent into foster care at the age of [thirteen]." Because McGillvary acknowledged in his amended complaint that he "attempted to commit suicide at [four] years of age[ ] by drinking a bottle of cough syrup and lighting a sleeping bag on fire," the district court concluded that McGillvary had admitted to the truth of the "fire starter" statement, which is an absolute defense to defamation.

McGillvary counters that the "fire starter" statement arguably implied that he attempted to start a fire in the family home when he was thirteen—the same year that he was sent to foster care—an allegation that he denies. But the "fire starter" statement contains no such temporal limitation. It merely says that he "tried to start a fire in the family home and was subsequently sent into foster care at the age of 13." Suppl. App'x at 53 (emphasis added). When read in context, the disputed statement was not "reasonably susceptible to the defamatory meaning imputed to it"—namely, that McGillvary had attempted to start a fire in the family home when he was thirteen.

With respect to the "laced-joint" and "ghosts" statements, McGillvary argues they implied that (i) he bore fault for McBride's driving into a group of bystanders with his truck, and (ii) he had perjured himself during subsequent state-court proceedings in which he testified about the incident. The two statements appeared in the same section of the article:

Then there was the matter of the incident itself. [McGillvary] began bragging to Fresno locals that he'd handed the driver, Jett McBride, a joint laced with a number of drugs but he "couldn't handle his shit." (A toxicology report only found marijuana in McBride's system.) According to Fresno cop Jeff Stricker, [McGillvary] and McBride smoked a joint in the vehicle, prompting [McGillvary] to tell McBride that "they were both ghosts," adding, "I bet we could drive through that truck right now and nobody could see us."

"He's not perfectly clean in this incident," Stricker maintains….

McGillvary argues that the "laced-joint" and "ghost" statements were clearly defamatory …. We need not reach this question, however, because McGillvary has conceded on appeal that he is a limited-purpose public figure with respect to his role in the February 1, 2013 hitchhiking incident. Thus, he was required to plead that Rolling Stone's statements were made with actual malice—"that is, with knowledge that the statements were false or with reckless disregard as to their falsity." …

McGillvary says that Rolling Stone, "acting in their established habit or usual business practice, researched and read the record of [McBride's criminal proceedings based on the 2013 incident] in advance of publishing the article," and that no reference is made in those proceedings to McGillvary ever giving McBride a laced joint or saying anything about ghosts. This, he says, was "sufficient reason to cause [Rolling Stone] grave doubts as to the veracity" of the claims in the article.

McGillvary does not allege that the defendants actually harbored such doubts, or that they even reviewed the underlying proceedings. And we have explained that "the reckless conduct needed to show actual malice 'is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing,' but by whether there is sufficient evidence 'to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.'"

In any event, the larger context of the article belies a finding that Rolling Stone acted with actual malice. The laced-joint statement is followed by a parenthetical about the contradictory findings of the toxicology report, suggesting that the joint was not in fact found to be "laced." The comment about the toxicology report directly undercuts McGillvary's claim: rather than making a false statement with actual malice, Rolling Stone reported the evidence relevant to the allegation without drawing a conclusion. Moreover, the "ghost" statement is clearly attributed to a police office, Stricker—who purported to repeat what McGillvary said to him in 2013. {McGillvary has not alleged that the article falsified or mischaracterized the statements attributed to Stricker.}

Lynn B. Oberlander and Sasha Dudding (Ballard Spahr LLP) represent Rolling Stone.

The post "Hatchet Wielding Hitchhiker" / Convicted Murderer Caleb McGillvary Loses Defamation Case Against <i>Rolling Stone</i> appeared first on Reason.com.

You can also watch our past episodes:

• Equal Time, Stephen Colbert, and the Future of Political Broadcasting
• Student Speech, Threats, and the First Amendment
• Can Journalists Be Charged for Involvement in Protests? The Don Lemon Dilemma
• 2025: The Year In Free Speech
• Does the First Amendment Protect Supposedly "Addictive" Algorithms?
• Defamation Law in the Age of AI with Lyrissa Lidsky
• Free Speech and the Future of Legal Education
• From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Eric Heinze
• Kimmel, the FCC, and the Government's Power Over Broadcast Speech
• A Conversation with FIRE's Greg Lukianoff
• A Burning First Amendment Issue: President Trump's Executive Order on Flag Desecration
• Free Speech and Doxing
• The Supreme Court Rules on Protecting Kids from Sexually Themed Speech Online
• Free Speech, Public School Students, and "There Are Only Two Genders"
• Can AI Companies Be Sued for What AI Says?
• Harvard v. Trump: Free Speech and Government Grants
• Trump's War on Big Law
• Can Non-Citizens Be Deported For Their Speech?
• Freedom of the Press, with Floyd Abrams
• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

The post Free Speech Unmuted: Speech, Not "Conduct": Supreme Court Rules on Conversion Talk Therapy appeared first on Reason.com.

I am very excited to announce the release of Peter Canellos's new book on Justice Alito, titled "Revenge for the Sixties: Sam Alito and the Triumph of the Conservative Legal Movement." Peter previously wrote a readable and insightful biography of Justice John Marshall Harlan I, "The Great Dissenter."

I interviewed Peter Canellos and posed eleven questions on YLS, OSG, OLC, DNJ, CA3, GWB, and SCOTUS. Extra credit if you get all the acronym references. The interview is published at Civitas Outlook.

One of the more fascinating insights is how the Alito family was affected by the Warren Court:

JB: Let's jump back to the beginning. In the 1950s, Trenton, New Jersey, was a conservative blue collar suburb of Philadelphia with a large Catholic population, many of whom were Italian. One of the defining features of being a conservative is trying to conserve that which was. Or, as President Trump might say, America was great, became less than great, and that greatness must be restored. What values did Trenton instill in a young Sam Alito that Justice Alito values today? Relatedly, could you discuss how the decisions of the Warren Court impacted the Alito family? This was one of the more fascinating tidbits from Alito's early life in your book.

PC: Justice Alito strongly identifies with a story of struggle that is familiar to many children and grandchildren of European immigrants, including myself. His father and grandparents came to America seeking opportunity, faced hardships and prejudice (a daily reality for Italian Americans in the Chambersburg section of Trenton, where his parents grew up), and then overcame them by dint of hard work and sacrifice. This is a narrative that spans generations. His parents worked extra jobs to put themselves through college and graduate school. Alito and his sister had it much easier, but were intensely aware that they were carrying the hopes and dreams of their parents and grandparents. And Alito fulfilled his family's expectations to a spectacular degree: top of his high-school class, editor of the school newspaper, winner of multiple citizenship prizes.

But this is not, in my opinion, a MAGA story about lost greatness. The Alitos believed in upward mobility. Despite their very devout Catholicism, his parents preferred public education. Each, at various points, worked in public schools. So did Alito's uncle. Moving beyond Chambersburg was a goal to be strived for, not an occasion for sadness or regret. Nonetheless, Justice Alito has spoken in interviews of his disappointment at what he sees as the run-down condition of Trenton, and even as far back as high school, he was faced with the destruction of a large swath of the city in the race riots that followed Rev. Martin Luther King Jr.'s assassination. Now, when Alito bemoans the fate of Chambersburg, he does so with a tone of nostalgia. It was the place where Italians put down roots, created an ethnic enclave, and established businesses like the Italian Peoples Bakery & Deli. It's widely noted that Alito, as a jurist, has a strong sense of tradition. He believes traditions should be enshrined in the Constitution, as long as they were in place at the time of the framing. It's a deeply sentimental, atavistic vision that grew out of his identification with his family's immigrant tale.

A later part of that tale is his parents feeling buffeted by the demands of the Warren Court. His mother, Rose, used Bible passages in her classes as a public-school teacher in Hamilton Township. But the Warren Court ruled such teachings unconstitutional, on the grounds that they alienated non-believers. His father, as the research chief for the New Jersey legislature, was handed the politically freighted task of equalizing the populations of state House and Senate districts, the result of another Warren Court decision demanding equal apportionment. Alito recalled lying in bed listening to the clicking of his father's slide rule as he struggled with the Herculean task.

I was also intrigued by the parallel paths that young John Roberts and Samuel Alito took through the Reagan Justice Department--yet the both wound up on the Supreme Court:

JB: Both a young John Roberts and a young Samuel Alito served in the Reagan Justice Department. But Roberts entered as a political appointee, climbing the ranks from Special Assistant to the Attorney General to Associate White House Counsel. By contrast, Alito entered the government as a civil servant. Between 1977 and 1981, he served as an Assistant United States Attorney in New Jersey. His boss was the Chief of Appeals, Mary Anne Barry Trump, the sister of the future President. But in 1981, he joined the Solicitor General's Office. How did a civil servant come to the attention of the Solicitor General Rex Lee? In 1986, Alito moved over to the Office of Legal Counsel under Chuck Cooper. How did he get that position? How did Attorney General Meese influence Alito?

PC: Rex Lee didn't view himself as a conservative activist. His greatest pride as solicitor general was his strong record of winning cases before the Supreme Court. During his years in the U.S. Attorney's office of New Jersey, Alito proved to be an adept appellate lawyer. He had the kind of pure legal acumen that Lee wanted in his office.

During the second Reagan Administration, however, the tide turned significantly. The new Attorney General, Ed Meese, wanted only conservatives in his inner circle. Alito lacked the political bona fides of other Meese aides. Chuck Cooper, who had served in the more activist Civil Rights Division, earned Meese's trust as a conservative. And Cooper had found Alito to be a rare ally in the solicitor general's office; the two men agreed on the need to push civil rights law in a more conservative direction. So when Cooper became the head of Meese's Office of Legal Counsel, he decided that he needed Alito as his top deputy. But he had to prove to Meese that Alito was really a conservative. Cooper coached Alito through a letter explaining the roots of his conservatism, which Cooper then shared with Meese's team as evidence of Alito's ideological correctness. In the letter, Alito made some startling assertions, including that he was a member of Concerned Alumni of Princeton, which opposed admitting women. The letter helped Alito get the job in the Office of Legal Counsel, but later it would almost derail his Supreme Court nomination.

You will learn a lot about Justice Alito.

The post My Interview with Peter Canellos, Author Of "Sam Alito and the Triumph of the Conservative Legal Movement" appeared first on Reason.com.

Plaintiff is a public high school student who alleges she was unconstitutionally disciplined by her high school for sending a private Snapchat message while off-campus to fellow-student (G.G.), which stated in reference to another student (D.E.), "cant even spell in english. leave. go back to wherever u came from."

The Court granted Defendants' motion to dismiss Plaintiff's First Amendment Freedom of Speech claim, finding that schools are permitted to regulate off-campus student speech where the speech in question threatens a concrete and substantial disruption, because, as alleged, those circumstances were present here. Order. Plaintiff now moves the Court to reconsider that decision, arguing that the Court did not fully appreciate that the message was not sent directly to the student to which it referred, that it was only sent because the other student had disparaged veterans, and that the Court assumed certain facts not alleged in the FAC [First Amended Complaint]. For the reasons stated below, Plaintiff's motion for reconsideration is granted….

First, as Defendants point out, the Court was clear in its Order that it understood that Plaintiff alleged that she sent the message at issue privately to G.G., not to D.E. Further, when the Court noted that Plaintiff's speech involved a "second-person" "direct command," it was because the message was, in fact, a command in the second-person—"leave," "go back to wherever u came from"—in which Plaintiff alleged she was referring to D.E. Finally, the "delivery to and direct impact on D.E." referenced the Plaintiff's allegations that D.E. in fact learned of the message and reported it to the school.

The Court found that taking the Plaintiff's allegations as true, the message risked causing—if not actually caused—substantial disruption at the school. To the extent that Plaintiff argues that the Court assumed facts not in the FAC, the Court agrees. The Court found the Plaintiff pled a substantial disruption, but a substantial disruption was not pled in the Complaint.

The Supreme Court in Mahanoy Area Sch. Dist. v. B.L. (2021) outlined "three specific categories of student speech that schools may regulate in certain circumstances: (1) 'indecent,' 'lewd,' or 'vulgar' speech uttered during a school assembly on school grounds"; "(2) speech, uttered during a class trip, that promotes 'illegal drug use' "; and "(3) speech that others may reasonably perceive as 'bear[ing] the imprimatur of the school,' such as that appearing in a school-sponsored newspaper."

The Supreme Court, however, acknowledged that in some circumstances, off-campus speech still falls under the school's interest. These situations include: "serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers."

Importantly, the Supreme Court did not "set forth a broad, highly general First Amendment rule stating just what counts as 'off campus' speech and whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community."

But the Supreme Court did provide some guidance. "First, a school, in relation to off-campus speech, will rarely stand in loco parentis…. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, "courts must be more skeptical of a school's efforts to regulate off-campus speech," and "the school will have a heavy burden to justify intervention" in off-campus religious or political speech. "Third, the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus."

It then stated: "these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker's off-campus location will make the critical difference." All this to say, Mahanoy describes an extremely fact-intensive test.

In the Court's order on Defendants' motion to dismiss, the Court focused on the final instance where a school can regulate speech, that is, "speech that 'materially disrupts classwork or involves substantial disorder or invasion of the rights of others.'" But, because this is a fact-intensive inquiry, dismissal at the motion to dismiss stage was improper. At the motion to dismiss stage, Plaintiff is entitled to all reasonable inferences. Whether there is evidence of a serious disruption was not before the Court. That is why the majority of these cases are resolved at summary judgment, or a preliminary injunction, not a motion to dismiss. Here, the complaint alleges no reasonable forecast of substantial disruption or actual disruption.

Indeed, Plaintiff alleged she sent a private, off-campus message, which she explicitly instructed the recipient not to share with anyone. Determining whether this falls into the bucket of off-campus speech which schools can regulate will require a fully developed factual record. The Court also cannot find at this stage that one message, sent privately to a different individual, constitutes the "serious or severe bullying or harassment targeting particular individuals" that Mahanoy held could be regulated….

Douglas B. Harper represents plaintiff.

The post Claim of Unconstitutional School Discipline for Snapchat Among Friends Can Go Forward appeared first on Reason.com.

From Sixth Circuit Judges Alice Batchelder, Joan Larsen, and Chad Readler in Monday's Ronan v. LaRose:

Samuel Ronan declared his candidacy in the State of Ohio's Fifteenth Congressional District as a Republican. To become eligible for the ballot, Ronan signed a declaration of candidacy stating: "I am a member of the Republican Party," and "I further declare that, if elected to said office or position, I will qualify therefor, and that I will support and abide by the principles enunciated by the Republican Party." See Ohio Rev. Code § 3513.07. The declaration also contains a notice that "whoever commits election falsification is guilty of a felony of the fifth degree."

Sometime after signing this declaration, Ronan posted on Facebook that "Leftists need to infiltrate [R]epublican spaces and primary them" and that's why he is "running as a Repub[l]ican now." Ronan had previously run for Chair of the Democratic National Committee. Referencing that campaign, he separately posted a Facebook comment stating, "I believe [I] very clearly mentioned [in the] DNC Chair race that Democrats, if they wanted to govern and regain the trust of Americans, would have to primary Republicans in deep red districts, as Republicans .… So, if l am doing anything, it's following the argument I made on that stage."

As permitted by Ohio law, an Ohio voter then protested Ronan's Republican candidacy. During a March 6, 2026 hearing on the protest, the Franklin County Board of Elections tied two-to-two on whether to remove Ronan from the ballot. On March 13, the issue was referred to Secretary Frank LaRose for a tie-breaking vote …. After LaRose broke the tie in favor of the protest, Ronan and one of his supporters filed this suit against LaRose and the members of the Franklin County Board of Elections….

Ronan is unlikely to show that Ohio Rev. Code § 3513.07 violates the First Amendment…. Ohio Rev. Code § 3513.07 requires candidates to sign a declaration of candidacy stating: "I am a member of the ___ Party," and "I further declare that, if elected to said office or position, I will qualify therefor, and that I will support and abide by the principles enunciated by the ___ Party." The declaration also contains a notice that "whoever commits election falsification is guilty of a felony of the fifth degree." While Ohio law permits candidates to change parties based on self-identification, we agree with the district court that Ohio law requires that change to be made in good faith….

Ronan [is not] likely to show that the good-faith requirement violates the First Amendment as applied to him. "[T]he right to vote in any manner and the right to associate for political purposes through the ballot [are not] absolute"—especially because "states retain the power to regulate their own elections." Burdick v. Takushi (1992). A look at the facts here shows that the Board removed Ronan because Ronan's own speech disavowed his sworn statement, not, as Ronan claims, because the Board deemed Ronan's policies "unRepublican."

Under our caselaw, we use the Anderson-Burdick framework to determine whether a state ballot-access regulation violates the First Amendment. To apply this framework, "a court must: (1) evaluate whether an election restriction imposes a severe or incidental burden; (2) assess the state's interests in the restriction; and (3) ask if the state's interests make the burden necessary."

First, this ballot-access restriction does not impose a severe burden on Ronan. The good-faith requirement prevents a candidate from running a sham election in which he self-identifies as a Democrat but tells voters that he is a Republican, or vice versa. That restriction does not prevent Ronan from voting, supporting candidates, endorsing candidates, running for office, or even switching parties. The only requirement is that he switch parties truthfully.

Second, the state has a substantial interest in this restriction. States may protect the fairness and integrity of elections, prevent fraud and corrupt practices, and avoid confusion. See Burdick ("The State has a legitimate interest in preventing … maneuvers" like "party raiding" and may "require that party candidates be members of the party.").

Finally, a good-faith requirement is a reasonable means to achieve the state's interest. That's especially true in the case before us, which as the district court noted, presents "unique factual circumstance[s]." Here, Ronan swore that he was a Republican and would abide by Republican Party doctrine; afterwards he made public statements that the factfinders here could reasonably decide showed that Ronan had made those declarations in bad faith. So Ronan is unlikely to "succeed on his federal constitutional claims because he has not shown that the application of Ohio law's 'good faith' standard … violated his constitutionally protected rights as a candidate." …

The court also rejected Ronan's Elections Clause claim, and Ronan's Due Process Clause claim that one of the Elections Board members was unacceptably biased.

Julie M. Pfeiffer and Mark R. Brown represent defendants.

The post Sixth Circuit OKs Disqualifying Republican Primary Candidate Who Admits He's a Democrat Infiltrating the Party appeared first on Reason.com.

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Shany Mor (@ShMMor) quickly came up with twenty-three off the top of his head (reprinted with Shany's permission).

1. Designating a combatant a journalist automatically immunizes that combatant from attack.

2. A territory is occupied even if there is no presence whatsoever after a hostile armed force by virtue of being blockaded.

3. A famine can be declared where people are not dying of starvation.

4. A territory becomes the sovereign title of one party — even when that party never exercised sovereignty over it in the past — when a second party conquers it from a third party which attacked it.

5. An armistice line explicitly set by all parties in an armistice agreement as not constituting an international border becomes one when the armistice is violated and war relaunched. But only to the advantage of the aggressing and losing party.

6. An unimplemented non-binding resolution to create an international zone permanently excludes sovereignty by one state over any part of the zone, but has no such effect on other parties, such that, say West Jerusalem can't be considered to be in Israel, but Bethlehem is "occupied Palestinian territory."

7. A state is not allowed designate a city inside its sovereign borders as its capital.

8. If one belligerent party attacks another with rockets, the attacked party is now responsible for feeding the civilians of the attacking party.

9. A sovereign state can be immune from attack even after it attacks another sovereign state as long as those attacks are carried out by proxy armies, openly funded and trained by the first state.

10. A state that attacks a neighbor and is defeated is entitled

to a full restoration of everything it lost in the war it initiated.

11. Warning civilians to leave a combat zone is "ethnic cleansing."

12. The taking of hostages is, apparently, ok after all.

13. A person is a refugee even if they have not actually crossed any international border.

14. A person is a refugee even if they acquired citizenship of another country, in other words are fully rehabilitated and no longer stateless.

15. A person is a refugee even if they are born somewhere with citizenship of that country to parents who were born in the same country, also with citizenship, as long as their grandparents were recognized as refugees despite either not fleeing across any border and having been rehabilitated from their displacement.

16. A normal act of war is "collective punishment" if it affects lots of people.

17. When one armed force sustains fewer casualties than another in combat, this is a violation of proportionality.

18. A standard deception operation is "perfidy."

19. A terrorist holding a weapon in the middle of combat is somehow "hors de combat."

20. Allowing civilians to move into an occupied territory without sovereign title is a violation of the prohibition on population transfer. But not granting automatic residency upon marriage for citizens of enemy nationalities is not only not a block on population transfer but itself a violation of fundamental human rights (even if no such provision exists anywhere else in the world).

21. A law of return for immigration is "apartheid."

22. An entity meeting zero of the four Montevideo conditions can be recognized as a state.

23. "Genocide" can be redefined if it feels really good to throw it at those people who are always going on about that Holocaust thing.

The post Laws/Rules Made Up to Apply to Israel appeared first on Reason.com.

Earlier today, the Cato Institute and I filed an amicus brief in Burlap and Barrel, Inc. v. Trump, one of the cases challenging Trump's massive new Section 122 tariffs before the US Court of International Trade. The case  was filed by the Liberty Justice Center (LJC), the same public interest group that I worked with on the earlier case that led to the invalidation of Trump's earlier IEEPA tariffs by the Supreme Court. I am not one of the attorneys representing the plaintiffs in this new case. But Cato and I are happy to support LJC and others in this important cause. For that reason, I wrote this brief.

Here is an excerpt from the Introduction to our brief, which summarizes our arguments:

Since the invalidation of the massive International Emergency Economic Powers Act (IEEPA) tariffs, by the Supreme Court in Learning Res., Inc. v. Trump, 146 S. Ct. 628 (2026),  the President has sought to effect a similar usurpation of congressional tariff authority by using Section 122 of the Trade Act of 1974 to impose 10 percent tariffs (likely to be increased to 15 percent) on imports from almost all our trading partners. This sweeping imposition is just as illegal as the previous one was, and for many of the same reasons.

Part I briefly explains why Section 122 simply cannot be used in current circumstances. The statute only permits 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." 19 U.S.C. § 2132(a). These conditions simply cannot exist in a flexible exchange rate regime of the sort in place today.

In Part II, amici explain why, if there is any ambiguity about whether Section 122 authorizes the massive tariffs imposed by the administration, the major questions doctrine (MQD) requires this issue to be resolved against the Defendants. The major questions doctrine requires Congress to "speak clearly" when it assigns to the executive "decisions of vast 'economic and political significance.'" Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014). The impact of the massive new Section 122 tariffs is as large or larger than many previous policies invalidated by the Supreme Court on major questions doctrine grounds. And the tariff power is not exempt from major questions scrutiny on the supposed ground that it is a "foreign affairs" power. The major questions doctrine also counts against giving the administration a blank check in determining whether the preconditions to invoke Section 122 exist.

Part III shows that, if Section 122 did grant the President the power he claims, it would violate the nondelegation doctrine, which constrains transfer of legislative power to the executive. "[T]he core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution." V.O.S. Selections v. Trump, 149 F.4th 1312, 1332 (Fed. Cir. 2025), aff'd sub nom. Learning Res., 146 S. Ct. 628 (2026). If the Defendants' interpretation of Section 122 is correct, the President could claim there is a balance-of-payments crisis at virtually any time and repeatedly impose 15% tariffs against virtually any imports from any country, circumventing the 150-day time restriction simply by declaring a new balance-of-payments problem exists when earlier tariffs expire. Such a sweeping delegation of a core congressional power would violate the requirements that Congress cannot make "boundless" delegations of the power to tax, and that "[t]he 'guidance' needed is greater when an agency action will 'affect the entire national economy' than when it addresses a narrow, technical issue." FCC v. Consumers' Research, 145 S. Ct. 2482, 2497, 2501 (2025) (quotation omitted).

Cato and I are grateful to Joshua Claybourn of Jackson Kelly, PLLC, and his firm for their invaluable assistance in helping draft, format, and file the brief on short notice.

I have previously written about the Section 122 tariffs and the important issues they raise here, here, and here.

The post Our Amicus Brief in the Section 122 Tariff Case appeared first on Reason.com.

The Federalist Society is pleased to announce a $15,000 annual prize for new scholarship that makes a distinct and highly significant contribution to the field of originalism….

The Prize will be awarded to the best originalism article printed or accepted for publication during the prior calendar year [2025], or the best originalism book published in the prior calendar year….

Each year, a panel consisting of leading experts—drawn from academia, constitutional litigation, and the judicial branch—will recommend the Meese Prize recipient, and the Federalist Society will announce the Meese Prize recipient at the National Lawyers Convention, usually held in November.

The Federalist Society will accept nominations for the first annual Meese Prize until May 15, 2026 at meeseprize@fedsoc.org. While not required, any cover letter for the nomination should not exceed two pages.

Self-nominations are allowed, I'm told.

The post "The Meese Prize for Excellence in Originalist Scholarship," Nominations Due May 15 appeared first on Reason.com.

City Journal has published my new essay, "The Transgender Tide Has Turned at the Supreme Court." This piece was largely inspired by the lopsided ruling in Chiles v. Salazar, but reflected some of my observations over the past year about Schilling, Skrmetti, Mahmoud, Orr, Mirabelli, and B.P.J. Here is the introduction:

"The arc of the moral universe is long, but it bends toward justice." Progressive like to cite this maxim because, in their view, the arc inevitably bends in one direction: to the left. Except when it doesn't.

Over just six years, the American public's perception of transgender rights has swung like a pendulum from the left to the right. Perhaps nothing illustrates this movement more clearly than six recent Supreme Court decisions recognizing that parents and governments may indeed preserve traditional understandings of gender.

And the conclusion:

These six (and likely seven) rulings would have been unthinkable in the immediate aftermath of Bostock. Indeed, the Supreme Court rejected a case identical to Chiles as recently as 2023. But times changed. Votes changed, too. Chief Justice John Roberts and Justice Neil Gorsuch, who joined the majority in Bostock, were also in the majority of the six recently decided cases and seem likely to do so as well in B.J.P.

Nor did all these cases involve a typical 6-3, conservative-liberal split. In Skrmetti, Justice Elena Kagan dissented but did not actually state that the Tennessee law was unconstitutional. (She would have reviewed the law with a more rigorous test than the majority did.) In Mirabelli, Justices Kagan and Ketanji Brown Jackson rejected the Supreme Court's interim ruling on the emergency docket but offered no defense of California's law. Indeed, Justice Kagan was surprisingly sympathetic to the claims of the parents. The vote in Chiles was 8-1, with Justices Kagan and Sonia Sotomayor writing separately to argue that Justice Jackson misunderstood Free Speech law. I suspect that the vote in B.P.J. could be 7-2, 8-1, or even 9-0.

Like pendulums, moral arcs can swing in both directions. At some point, restrictions on transgender rights may go too far. The goal should be an equilibrium that preserves the freedom to adhere to traditional understandings of biological sex.

I think this essay synthesizes a recent and important trend at the Court.

The post New in City Journal: "The Transgender Tide Has Turned at the Supreme Court" appeared first on Reason.com.

Many MAGA Republicans view Viktor Orban's Hungary as a model for their own policies, and Vice President J.D. Vance has gone to Hungary to help the increasingly unpopular Orban stave off electoral defeat, which might well happen despite Orban's rigging of the election system. But, as my Cato colleague and prominent Swedish libertarian economic policy expert Johan Norberg explains in a new Cato policy analysis, Orban's rule is a cautionary tale, not an example to emulate:

Some US conservatives see Prime Minister Viktor Orbán's Hungary as a model for America's future. In reality, Orbán's crude majoritarianism has undermined the rule of law and media freedom in Hungary to take control of the economy and funnel resources to loyal oligarchs. The dismantling of institutional constraints on state power has gone further than in other modern democracies, and the results have consistently disappointed, even in areas where the government claims achievements such as strengthening the economy or increasing fertility rates. Far from being a model, Orbán's Hungary is a cautionary tale of what results from an unrestrained executive with strongly centralized power, crony capitalism, and the systematic dismantling of the rule of law.

Norberg documents each of these points in detail. Whether the standard is civil liberties, economic freedom, prosperity, or even such social-conservative goals as increasing the birthrate, Orban's rule has been awful. After initial success in transitioning from communism and raising standards of living under previous post-communist governments, Orban's regime has made Hungary the poorest and least free nation in the European Union. See also Norberg's shorter summary of his analysis in a recent Washington Post op ed.

I would add that the authoritarian tendencies, repression, and harmful economic statism we see in Hungary under Orban are far from entirely unique to this particular government. To a large extent, they exemplify broader pathologies of nationalism, which Alex Nowrasteh and I surveyed in our 2024 article, "The Case Against Nationalism." Just as Venezuela illustrates the perils of "democratic socialism," Hungary illustrates those of nationalism. Indeed, as Alex and I discuss in our articles, these two types of awful political systems have much in common, despite being based significantly different ideologies.

We should learn from the evils of Orban and other similar nationalists, not imitate them.

The post Viktor Orban's Hungary Exemplifies the Perils of Nationalism appeared first on Reason.com.

Last week the Supreme Court heard oral argument in United States v. Barbara, the case challenging the lawfulness of President Trump's anti-birthright-citizenship Executive Order.

I summarize some of my initial thoughts in today's Civitas Outlook column. In that piece, I also explain how the Court can resolve the case without resolving the underlying constitutional questions. Whatever the precise limits the exceptions to birthright citizenship under Section One of the Fourteenth Amendment, it is particularly hard to argue that the EO is consistent with federal law, as it has been understood, applied, and enforced for the past seventy-five years, and even harder to argue that the President, acting unilaterally, can rewrite the law of citizenship by executive decree.

From the piece:

The easiest way for the Court to reject the Administration's position does not require reaching the underlying constitutional question, however. Under 8 U.S.C. §1401, any "person born in the United States, and subject to the jurisdiction thereof," is a citizen of the United States. When enacted in 1940 and again in 1952, this language was understood to adopt the conventional understanding of birthright citizenship and "every statute's meaning is fixed at the time of enactment," as the Court reaffirmed in Loper Bright Enterprises v. Raimando (2024). Throughout World War II, children born to Japanese citizens were recognized as citizens, even as their parents were considered enemy aliens. This conflicts with the Trump Administration's emphasis on "allegiance."

For decades, all three branches have consistently interpreted Section 1401 to embody the conventional understanding of birthright citizenship. The U.S. Reports are filled with Supreme Court decisions that simply assume that all born in the United States are citizens, without regard to their parentage. Accordingly, that interpretation should be entitled to statutory state decisis even if one believes the conventional account is wrong. Thus, the Court could simply hold that the Trump EO conflicts with federal law and leave it to another day whether Congress could enact a law withdrawing jurisdiction over illegal aliens or temporary visitors. After all, the Constitution entrusts Congress with the power to make laws concerning naturalization and to enforce the Fourteenth Amendment. Such enactments cannot be adopted by executive fiat. . . .

An obvious question for the SG was what upholding the EO would mean for those in the country who cannot trace their lineage back to a lawful permanent resident. Pressed on the point, Sauer stressed that the Administration was only asking for prospective relief. That may be, but it is no answer to the constitutional question. If the reason for the EO's validity is that only children of citizens and lawful permanent residents are birthright citizens under the Constitution, a ruling in favor of the government would cast a pall over millions of Americans whose citizenship has long been taken for granted. Sauer's pledge that the Administration would not pursue such claims is cold comfort, as legal questions about the citizenship of such people would inevitably arise (as would questions about how to determine "domicile"—as Justice Amy Coney Barrett noted at the oral argument).

I have long maintained that Congress may well retain some power to adjust the contours of birthright citizenship by defining the bounds of the jurisdiction of the United States, pursuant its power under Section 5 of the Fourteenth Amendment. But Congress has not exercised this power. To the contrary, Congress has reified the prevailing understanding of birthright citizenship. This makes the resolution of Barbara quite easy. We will see how many of the justices agree.

The post The Easiest Way to Resolve the Birthright Citizenship Case appeared first on Reason.com.

To state the obvious, many people put a lot of weight (far too much weight, in my view) on the US News law school rankings. Good evidence of this is the prevalence of the term "T14." The label arose in the 1990s when people noticed that the same 14 law schools—and only those 14—occupied the top 14 spots in every US News overall ranking starting with the first one in 1990. (There was a 1987 ranking that was simply a survey sent to selected law school deans, but the rankings with multiple metrics began in 1990.) That is, not only were these 14 schools always in the top 14, but no other school even tied for 14th.

That pattern continued with remarkable regularity through the rankings released in 2022, with three tiny exceptions noted below. (Sidenote: after Georgetown fell out of the top 14 a couple of times, some—often Georgetown supporters—suggested that the T14 should instead be defined as the top 10 schools that had ever appeared in the US News top 10, noting that Georgetown ranked #10 once, in 1993. But by that reasoning Georgetown would forever remain a top 14 school, even if consistently ranked #30, which is pretty silly.)

Between its 2022 and 2023 law rankings, US News changed its methodology considerably, moving toward more objective metrics and away from spending per student—a metric that wasn't reported to the ABA and could easily be manipulated. We now have four years of rankings under the new regime, and a few things have become clear:

1. The 1990–2022 rankings are so different from the 2023–2026 rankings that they are effectively separate regimes.
2. The T14 is dead. The top 14 is the second-least coherent grouping in the 2023–2026 rankings.
3. The 2023–2026 rankings show more variation (unsurprisingly, since they put more weight on things that change year to year, like employment numbers).
4. Perhaps surprisingly, at least for now there is a coherent replacement for the T14 in the new regime. Say hello to the T11—or, if you prefer, a T10 with 11 members.

On the first claim: There are various ways to illustrate the differences between the pre-2023 and 2023–2026 regimes, but the visualization above is the one I liked best. (You can open these visualizations in a new tab to enlarge them.) The lines move dramatically after 2022. Look at the table on the right side showing how much movement occurred. Only three of the current top 23 schools (based on the 2023–2026 average rankings) moved less than one rank, and many moved much more. Indeed, I found that I couldn't include the full movement of UNC and Georgia without severely compressing the rest of the chart. And charting the top 25 schools in the current regime would have included Texas A&M, which moved up steadily before 2023 (from 60 to 53 to 46 in 2020–2022) but then had a massive leap in 2023 to 29, followed by 26 in 2024 and 22 in 2025 and 2026. Its 2023–2026 average (24.8) was thus more than 18 ranks better than its 2020–2022 average. In any event, the bottom line is that the 2023–2026 rankings differ sharply from the 1990–2022 rankings.

That still leaves the question of whether any coherent groupings exist within each period.

The cleanest way to measure deviations from a "Top X" grouping is to identify the minimum total number of changes in ordinal position necessary for the same schools—and only those schools—to constitute the top X each year. This also answers the question of which schools belong in the top X—it should be whichever combination results in the smallest minimum total number of changes. (The proxy I use to determine this is a school's average ranking over the measured time period.)

So the most coherent grouping is the one that requires the fewest moves, and thus has the lowest number in the bar charts below.

For those who aren't interested in how the counting works, feel free to skip this paragraph. There are three exceptions to the same 14 schools (Yale through Georgetown) occupying the top 14 from 1990–2022: 1) In 2011 Texas tied Georgetown for 14th. To put Georgetown alone in 14th place, Georgetown would need to move up 1 position (or Texas down 1). Either way, 1 position would need to change. 2) In 2017, Georgetown tied with UCLA for 15th, and Texas was 14th. Georgetown would need to move up 2 positions (from 15th to 13th) to avoid a tie with Texas. 3) In 2021, Georgetown was 15th and UCLA was 14th, so Georgetown would need to move up two positions, or UCLA would have to move down two positions (or each moves one) to avoid a tie, for a total of two positions moved.

As the visualization below shows, the minimum total number of positional changes needed for the T14 to remain perfectly stable from 1990–2022 is just five. That is a significantly lower number than for any other Top X grouping (except for the Top 1, which is too small to be useful). That low number of moves indicates the coherence of the T14 during those years. Meanwhile the Top 8 was quite incoherent.

The 2023–2026 regime tells a very different story. The Top 14 is tied for the second-least coherent grouping in the top 20. The T14 is no more. But an obvious replacement has emerged from the 2023–2026 rankings: the Top 11. The Top 3 is even more coherent, and there is a Top 2, but those clusters are too small to be useful replacements for the Top 14. After the Top 11, the next most coherent sizable group is the Top 7.

You can call the Top 11 the "Top 10" because they are the 11 schools consistently in the top 10, accounting for ties. I prefer "Top 11," but Top 10 is a more conventional number, and there's a faint absurdity (perhaps fitting for rankings that shouldn't be taken as seriously as they are) in having 11 schools in the Top 10.

None of this is to suggest that the 2023–2026 US News law rankings, or the 1990–2022 rankings, or any other rankings system is the "correct" rankings system, whatever that would even mean (and the US News 1990–2022 and 2023–2026 regimes can't both be correct, given the differences between them). Rather, my point is that insofar as you take the US News law rankings seriously, you should not invoke the T14. Invoking the T14 now is like relying on 2013–2022 college basketball polls to identify the strongest teams this season.

The larger point is about the stickiness of old paradigms—a form of status quo bias. It's easy, and lazy, to notice a pattern and assume it will persist. Sometimes it does: a 2021 ranking of universities by endowment will look very similar to one from 2026, and quite probably 2031 as well.

But often a pattern doesn't persist. From 1990–2022, the T14 was consistently the most coherent grouping in the US News law rankings. That era is over. In the post–2022 rankings, the T14 is dead, and the T11—or the T10 with 11 members—has risen from its ashes.

The post The US News T14 Is Dead, and Has Been Replaced by the T11 (or, if You Prefer, the T10 with 11 Members) appeared first on Reason.com.

In the fall of 2016, the appellant's addiction to painkillers and fentanyl led to the filing by his mother of a "section 35" petition in the District Court. General Laws c. 123, § 35 ("section 35") authorizes the involuntary civil commitment of a person for care and treatment where "there is a likelihood of serious harm as a result of the person's alcohol or substance use disorder." After examination by a court clinician and a subsequent hearing, a District Court judge committed the appellant ("K.P.") to a substance abuse treatment facility for a period not to exceed ninety days. K.P. did not appeal his commitment and was discharged from the facility approximately one month later.

A civil commitment under section 35 has a collateral consequence—it disqualifies an individual from holding a license to carry a firearm. The bar is not absolute. Rather, after the passage of five years, a person may file a petition with the District Court that ordered the commitment, seeking relief from the disqualification to obtain or restore a license to carry. In this case, K.P. did so and was denied. K.P. now appeals that denial….

The court [in a section 35 restoration proceeding] may grant relief "in accordance with the principles of due process" if the person's circumstances, record, and reputation are such that "(i) the person is not likely to act in a manner that is dangerous to public safety; and (ii) the granting of relief would not be contrary to the public interest." In so doing, the court may consider the opinion of a licensed physician or clinical psychologist that the person is "no longer suffering from the disease or condition that caused the disability or that the disease or condition has been successfully treated for a period of 3 consecutive years."

Roughly six and a half years following his commitment, K.P. filed a petition in the court that ordered his commitment seeking to restore his right to possess a firearm. In support of his petition, K.P. submitted letters from his father, mother (the original petitioner under section 35), and his girlfriend, as well as a letter and affidavit from K.P. himself, which included copies of clean drug screenings mandated by his employer. The supporting materials described K.P. as an individual who had overcome his addiction, maintained employment as a commercial truck driver, obtained his real estate salesperson's license, and was in a long-term relationship with his girlfriend while parenting his children. Nonetheless, a District Court judge denied K.P.'s petition without a hearing.

Beyond the requirement that a court may grant relief "in accordance with the principles of due process," section 35 is silent as to how such petitions should be considered….

At a minimum, due process requires notice and an opportunity to be heard. Because a constitutional right is at stake, we find that a court faced with a petition to restore a license to possess a firearm following a section 35 commitment should conduct a hearing with testimony under oath. This will permit the judge to assess credibility and question the petitioner, at what is essentially a one-sided, non-adversarial proceeding. Such a hearing will allow the petitioner to offer, as suggested by the statute but not required, the opinion of a licensed physician or clinical psychologist as described above.

The focus of the hearing, understandably, should be whether the petitioner has satisfied the provisions of section 35 that would warrant relief, namely, whether the person is not likely to act in a manner that is dangerous to public safety and the granting of relief would not be contrary to the public interest. Lastly, because section 35 provides a de novo avenue of appeal to this Appellate Division for a petitioner who is denied relief, such a hearing will provide a record upon which review can be made. For those reasons, we return this matter to the District Court for a hearing in accordance with this decision.

Because the issue may arise at the hearing, we address the issue of the standard of proof required. Section 35 is silent on the topic, but we note that under somewhat analogous hearings held before the firearms review board (the "board"), the petitioner must prove by "clear and convincing evidence" that the petitioner is a suitable person to be a license to carry holder. By statute, an applicant for a license to carry who has been previously convicted of an offense punishable by two and one half years or less may, after five years from the date of final disposition, petition the board for review of eligibility to be a license to carry holder. Such hearings are to be conducted in an informal manner but according to the rules of evidence and with witnesses sworn. On return of this case, the court should follow the same procedure.

Charles H. Basler (Law Office of Adam M. Bond) represented plaintiff.

The post Massachusetts Denial of Gun Rights Restoration Reversed by Appellate Court appeared first on Reason.com.

This case is before the court for ongoing disciplinary proceedings against Attorney Joshua Watkins and his former law firm, Burrill Watkins LLC, following Mr. Watkins's misuse of artificial intelligence to make false statements to the court….

On multiple occasions, in multiple filings and hearings, and in response to multiple questions and orders, Mr. Watkins has intentionally misled the court. Rather than taking responsibility for his actions, Mr. Watkins has feigned contrition, obfuscated the truth, changed his stories when it suits him, and attempted to blame others for his own professional misconduct….

Mr. Watkins's misconduct includes—and extends well beyond—the misuse of artificial intelligence to make both misleading and outright fabricated statements of law. Between the protracted misconduct in this case, and the similar AI issue in a sister court, the court is gravely concerned about the consequences of Mr. Watkins's misconduct.

Mr. Watkins's misconduct did not occur in a vacuum. The court also has serious concerns about Burrill Watkins's apparent lack of internal controls and guardrails surrounding its attorneys' use of artificial intelligence—indeed, the very AI the firm pays for and encourages its attorneys to use. Though Burrill Watkins maintains that it acted swiftly to remediate Mr. Watkins's errors, which it says it had no reason to know about, the firm has not explained how it enforced any policies about responsible AI use, how it will prevent improper AI use going forward, or any other circumstance—let alone an extraordinary one—why it shouldn't be sanctioned.

Indeed, although Burrill Watkins's purported lack of knowledge has to do with a partner's misuse of a relatively new technology, its core argument about its own ignorance is both old and ordinary. The court need not make findings about the employment disputes between Mr. Burrill and Mr. Watkins to evaluate whether the firm should be sanctioned under Rule 11 for Mr. Watkins's misconduct in this case….

The court finds that Mr. Watkins's factual statements about keeping the plaintiffs fully informed of his misconduct and its attendant risk to their case were false. The court credits Dulce Rivera's statements that Mr. Watkins did not advise her about the issues his AI misuse caused for her family's business litigation. Those statements fit with all the other evidence in the record, including the timing of her own decision to ask that Burrill Watkins not allow Mr. Watkins to handle her family's case any longer.

On the other hand, the court finds that Mr. Watkins's entirely unsupported—and directly contradicted—self-serving narrative on this issue is unworthy of belief. Mr. Watkins's last-minute assertion that he promptly told his clients all they needed to know to understand the seriousness of his misconduct does not fit with any other evidence in the record, including the timing of his dismissal from this case or his removal from his law firm. Indeed, the evidentiary record provides no support for this assertion by Mr. Watkins….

Mr. Watkins's conduct in this case is troubling. What began as the misuse of artificial intelligence in a court filing (which Mr. Watkins characterized as an inadvertent technical error) grew into repeated instances of lying and obfuscation. At a minimum, this violated Rule 11.

But Mr. Watkins's misconduct extends well beyond the rule violation. As an initial matter, his repeated efforts to deflect blame reflect little to no appreciation for the seriousness of the rule violation. At best, Mr. Watkins feigned accepting responsibility for the hallucinated cases; he laced his purported acceptance with blame for court staff and distracted from it by foisting blame on opposing counsel.

Further, in the filings that supposedly corrected the fabricated citations, Mr. Watkins again misled the court, ignored some specific instances of misconduct, and tried to bury the true extent of others through convoluted footnotes. And Mr. Watkins intentionally misrepresented his communications with his clients, describing himself as forthcoming, honest, and diligent with them, when the record reflects the opposite. Mr. Watkins changed his answers to the court's questions and misrepresented basic facts.

Altogether, this course of misconduct reflects an abdication of Mr. Watkins's duty of candor to the court. His false statements of law and fact reflect intentional, repeated choices—not isolated lapses in judgment attendant to unreasonable haste or excusable neglect. The court's finding in this regard is underscored by the reality that the same kind of conduct by Mr. Watkins contemporaneously garnered the attention—and serious concern—of a state court. And the finding is amplified by his failure to follow the court's instructions in its order to show cause, deepening the court's concern about his respect for court rules and orders, the seriousness of these proceedings, and Mr. Watkins's attention to these disciplinary proceedings.

In at least one other case involving false statements of law arising from the misuse of artificial intelligence, the court has seen lawyers accept responsibility for a lapse in judgment and do the work necessary to establish that it was, in fact, a lapse. This is not that.

The court is sympathetic to Mr. Watkins's stressful circumstances that allegedly caused him to file a draft, unvetted document, but that neither encapsulates nor excuses Mr. Watkins's full complement of misconduct. The court cannot attribute the sequence of events that comprise Mr. Watkins's misconduct in this case—which occurred over a period of months and took the court dozens of pages to recite—to ordinary negligence, or even recklessness, under difficult and stressful working conditions.

Mr. Watkins's intentional misrepresentations and disruptions in this litigation are, at a minimum, knowing. His false statements and effortful misleading, together with his steadfast refusal to accept responsibility, are, at a minimum, tantamount to bad faith. Accordingly, the court will impose appropriate sanctions under Rule 11 and its inherent authority….

The court ORDERS as follows:

1. The court PUBLICLY REPRIMANDS attorney Joshua B. Watkins and law firm Burrill Watkins LLC for the misconduct described in this order;

2. To effectuate their reprimand, Mr. Watkins and Burrill Watkins are ORDERED to provide a copy of this order to their clients, opposing counsel, and presiding judge in every pending state or federal case in which they are counsel of record. They shall also provide a copy of this order to every attorney in their law firm….;

3. To further effectuate the reprimands and deter similar misconduct by others, the Clerk of Court is DIRECTED to submit this order for publication in the Federal Supplement;

4. Mr. Watkins and Burrill Watkins LLC are DISQUALIFIED from further participation in this case; …

6. The Clerk of Court is DIRECTED to serve a copy of this order on the General Counsel of the Alabama State Bar and any other applicable licensing authorities for further proceedings as appropriate; …

12…. [T]he court GRANTS the defendants' requests for attorney's fees. The court ORDERS Burrill Watkins to pay the Triad Defendants $11,453. The court further ORDERS Mr. Watkins and Burrill Watkins to pay, jointly and severally, $35,603.90 to the Fite Defendants….

The post AI "Hallucinated Cases" Lead to $47K Sanctions appeared first on Reason.com.

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Iowa Code § 279.78(3) provides: "If a student enrolled in a school district requests an accommodation that is intended to affirm the student's gender identity from a licensed practitioner employed by the school district, including a request that the licensed practitioner address the student using a name or pronoun that is different than the name or pronoun assigned to the student in the school district's registration forms or records, the licensed practitioner shall report the student's request to the administrator employed by the school district, and the administrator shall report the student's request to the student's parent or guardian." …

The district court found part of the statute was unambiguous and another part unconstitutionally vague. The court found the notice provision is unambiguously triggered if a student requests use of a pronoun different than the pronoun assigned to the student in the school district's registration forms or records.

In contrast, the district court concluded that the provision "accommodation that is intended to affirm the student's gender identity" is impermissibly vague because the term "accommodation" has a broad meaning and, without being defined, can lead to unpredictable interpretations and create a substantial risk of arbitrary enforcement. The district court found neither Merriam-Webster's Collegiate Dictionary nor other resources helpful in determining the meaning of "accommodation." The court concluded "accommodation" is a "capacious concept" and severed what it found to be an unconstitutional portion of the statute.

{[Bu t]he examples provided by the district court in an effort to demonstrate overbreadth—such as a female asking to sit with boys at lunch, or a male choosing a pink pencil, or a male choosing to write reports about female historical figures—are not on their face student requests to change or modify gender identity.}

{[T]he Supreme Court has given two reasons a state statute may be found unconstitutionally vague: (1) if it "fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits," or (2) it "authorizes or even encourages arbitrary and discriminatory enforcement." "Condemned to the use of words, we can never expect mathematical certainty from our language." The Constitution does not require meticulous specificity.} "Flexibility and reasonable breadth are acceptable as long as it is clear when the rule as a whole prohibits." …

If the enactment does not impose criminal penalties, due process requires less specificity—and even less specificity is required for public school disciplinary rules. If the First Amendment is implicated, this Court has explained that while a lesser standard of scrutiny is applied in public school settings, the vagueness doctrine demands a proportionately greater degree of specificity when the law reaches the exercise of free speech.

The Iowa legislature's failure to define the term "accommodation" does not automatically render the statute impermissibly vague. The term "accommodation" is used and undefined in several federal statutes that have existed for decades.

When a statutory term is undefined, courts are to consider the word's common and ordinary meaning, taking into account the context in which the undefined term is used. The ordinary and common understanding of "accommodation" in the context of this statute is straightforward—it applies if a student requests to change, adapt, or modify an aspect of their gender identity. {The law is clear enough that a person of ordinary intelligence can reasonably understand it. The district court erred when it found otherwise.} …

If an actual dispute arises over whether a gender identity related accommodation was requested or granted without notifying the student's parents, an as-applied challenge is available. Plaintiffs elected not to make any as-applied challenges and instead sought injunctive relief only on their facial challenge….

Iowa Solicitor General Eric Wessan argued the cases, and Deputy SG Patrick Valencia worked closely with him.

The post Iowa Law Requiring Parental Notification as to Accommodations "Intended to Affirm [Public School] Student's Gender Identity" Upheld appeared first on Reason.com.

From Iowa Safe Schools v. Reynolds, decided today by Eighth Circuit Judge Ralph Erickson, joined by Judges Lavenski Smith and Jonathan Kobes:

[Iowa law] precludes a school district from providing instruction relating to gender identity or sexual orientation to students in kindergarten through grade six [the "Instruction Section"]…. [It also] requires school officials to notify parents if a student asks for the use of a pronoun that does not match the school's registration records or requests an "accommodation that is intended to affirm the student's gender identity" [the "Parental Notification Law"]….

Iowa Code § 279.80(2) provides: "A school district shall not provide any program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six." When enacted, the statute referred to the definition of gender identity as set forth in § 216.2(12), which defined gender identity as "a gender-related identity of a person, regardless of the person's assigned sex at birth." …

Iowa law defines gender identity as "an individual's subjective identification as male, female, or neither male nor female … [and] shall not be considered a synonym or substitute for sex or gender." Sexual orientation is defined under Iowa law as the "actual or perceived heterosexuality, homosexuality, or bisexuality." …

In addressing Plaintiffs' facial challenge, the district court concluded that all but two words in this statute—program and promotion—pass constitutional muster. The court found the words "program" and "promotion" are too broad to refer only to mandatory classroom curriculum and violate the First Amendment by prohibiting school districts and educators from, for example, making extracurricular activities relating to gender identity and sexual orientation available to students in grades six and below.

Throughout the litigation, the State has insisted that this statute applies only to mandatory parts of the educational curriculum. Reading the plain language, we cannot say the State's assertion is wrong. The statute lists seven activities separated by commas. Read together, we think the plain language speaks clearly enough to apply to classroom curriculum.

Even so, the district court excised two of the words and found the only plausible way to interpret them as not viewpoint-based was to conclude that school districts are not allowed to provide any programs or promotion relating to any gender identity or any sexual orientation, which also would include "girls" sports teams and "boys" sports teams. The court further found that the State's contention that this was a faulty interpretation "guarantees" that state officials will determine on an ad hoc and subjective basis which activities are permitted and which are not.

If Plaintiffs had pursued as-applied challenges and presented a developed record, it is remotely possible that the district court raised valid points. Because Plaintiffs forewent their as-applied challenges, we are left to determine only whether the district court's facial injunction should be upheld….

Even if we were to assume the statute is susceptible to more than one construction in that it applies to extracurricular or other non-curricular activities, as the district court found, the canon of constitutional avoidance applies. This canon functions as a means of adopting a construction that avoids questions about its constitutionality. The canon of constitutional avoidance permits us to adopt the State's interpretation and avoid the purported constitutional infirmities that are not apparent from the text of the statute.

The district court engaged in a flawed analysis when it isolated two words in the statute to create an expansive view of the law's scope. Courts typically handle constitutional claims on a case-by-case basis, not en masse. And for good reason. A statute may only be invalidated under the First Amendment if its unconstitutional applications substantially outweigh the constitutional ones. "[F]acial challenges are hard to win."

When the Plaintiffs elected to litigate the constitutionality of §279.80(2) solely as a facial challenge, they chose to carry the risk of having to show that unconstitutional applications substantially outweighed the constitutional applications. Because there is an inadequate showing to demonstrate the unconstitutional applications of Iowa Code § 279.80(2) substantially outweigh the constitutional ones, Plaintiffs cannot show a likelihood of success on the merits, and the entry of a preliminary injunction was improper.

Iowa Solicitor General Eric Wessan argued the cases, and Deputy SG Patrick Valencia worked closely with him.

The post Court Rejects Facial Challenge to Iowa Law Barring Public School K-6 Programming Related to "Gender Identity or Sexual Orientation" appeared first on Reason.com.

In Pico v. Bd. of Ed. (1982), the Supreme Court split 4-1-4 on the question. All the Justices agreed that books could be removed if they are "pervasively vulgar" or otherwise age-inappropriate. But four liberal Justices (to oversimplify) concluded that viewpoint-based removals are forbidden. Four conservative Justices concluded that they are permissible (because the government gets to choose what's included in either the curriculum or the libraries at government-run schools). And the ninth Justice, the centrist Justice White, concluded that there was no occasion in the case to decide the matter.

Since then, in Little v. Llano County (5th Cir. 2025), a 10-7 Fifth Circuit en banc majority concluded that the government can pick and choose what books can be removed from public or public school libraries, because people don't have a "right to receive information" via government-run libraries: "It is one thing to tell the government it cannot stop you from receiving a book. The First Amendment protects your right to do that. It is another thing for you to tell the government which books it must keep in the library." And just today, a unanimous Eighth Circuit panel held (in Penguin Random House, LLC v. Robbins, written by Judge Ralph Erickson, joined by Judges Lavenski Smith and Jonathan Kobes), that the government likely has broad (though not entirely unlimited) authority to pick and choose what books can be removed at least from public school libraries. An excerpt:

{[Iowa law] requires Iowa school districts to establish a library program, which contains "age-appropriate materials, and supports the student achievement goals of the total school curriculum." "Age-appropriate" is defined as "topics, messages, and teaching methods suitable to particular ages or age groups of children and adolescents, based on developing cognitive, emotional, and behavioral capacity typical for the age or age group." The law expressly precludes the inclusion of "any material with descriptions or visual depictions of a sex act," as defined in Iowa Code § 702.17.}

[T]he standard set forth in Hazelwood Sch. Dist. v. Kuhlmeier (1988)—that is, whether the book restrictions are "reasonably related to legitimate pedagogical concerns"—… applies to school activities that "may fairly be characterized as part of the school curriculum," and a school library is such an activity….

[T]wo distinct interests are at play: (1) a student's right to receive information, and (2) publishers' and authors' right to communicate with their intended audience. As to the first category, the removal of a book from a school library does not prevent a student from "receiving" the information. See Little v. Llano County (5th Cir. 2025) (overruling prior precedent suggesting students may be able to challenge the removal of a book from public school libraries and explaining a library's collection decisions are government speech); Pico (Rehnquist, J., dissenting) (noting "the most obvious reason" students are not denied access to a book by its removal from a school library is "the ready availability of the books elsewhere"). The First Amendment does not guarantee students the right to access books of their choosing at taxpayer expense. See Walls v. Sanders (8th Cir. 2025) ("Students do not possess a supercharged right to receive information in public schools[.]").

To the extent Plaintiffs' arguments or the district court's decision finding that students have a right to receive books in a school library rest on Pico's plurality opinion, this Court has held that Pico lacks any holding on First Amendment issues because the narrowest grounds for the judgment was Justice White's opinion, which did not decide any constitutional questions. Other Circuits have similarly held that Pico has no precedential weight as to application of First Amendment principles. Llano County; ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd. (11th Cir. 2009) (same). Further, we are bound by this Court's decision last year concluding [that an earlier Eighth Circuit], which relied on Pico to find a First Amendment violation, has been abrogated by subsequent Supreme Court decisions. Walls….

[As to t]he publishers' and authors' First Amendment claim[,] … the Supreme Court explained that "expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school" constitute school-sponsored speech, over which a school can exercise editorial control, "so long as [its] actions are reasonably related to legitimate pedagogical concerns." Hazelwood. Activities that may be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, are those that "are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences."

It is indisputable that the purposes of a school library are to enhance education, supplement classroom learning, and facilitate the development of students' knowledge and skills. A school library is curated by school officials, educators, librarians, or perhaps some combination of these people. It is supervised by educators and librarians. Given these aspects, under Hazelwood, a school library bears the imprimatur of the school and is properly characterized as part of the school's curriculum.

The book restrictions in [the Iowa law] address legitimate pedagogical concerns. The law requires schools to curate a library with "age-appropriate materials" that support the school's curriculum and student achievement goals. The law prohibits school libraries from including any material with "descriptions" or "visual depictions" of a "sex act." Librarians and educators do not have to import their view or understanding of sex act, as this term is expressly defined under Iowa law….

{[And t]he library restrictions are neither amorphous nor unreasonable.} The plain language of the statute prohibits books containing "descriptions" or "visual depictions" of six categories of specified sex acts. The specified sex acts are detailed under Iowa law….

[S]chools have a legitimate pedagogical interest in prohibiting speech involving sexual content. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser (1986) (noting a high school assembly or classroom is no place for a sexually explicit monologue and the First Amendment does not prevent school officials from imposing disciplinary sanctions); Henerey ex rel. Henerey v. City of St. Charles, Sch. Dist. (8th Cir. 1999) (concluding sophomore student's distribution of condoms as part of his campaign for junior class president carried with it the implied imprimatur of the school and the principal did not violate student's First Amendment rights by disqualifying student for his conduct that ran counter to the school's pedagogical concern and educational mission); Lacks v Ferguson Reorganized Sch. Dist. R-2 (8th Cir. 1998) (holding that, as a matter of law, the school board has a legitimate academic interest in prohibiting profanity by students, even in their creative writing, and school district's discipline of a teacher who failed to enforce the rules and policies did not violate the First Amendment).

In the context of school-sponsored speech, actions "reasonably related to legitimate pedagogical concerns" do not run afoul of the First Amendment. As explained by the Hazelwood Court, federal judges are not tasked with the responsibility of educating the Nation's youth. Only when a decision to censor a school-sponsored "vehicle of student expression has no valid educational purpose that the First Amendment is so directly and sharply implicated as to require judicial intervention[.]" …

Iowa Solicitor General Eric Wessan argued the cases, and Deputy SG Patrick Valencia worked closely with him.

UPDATE 4/7/2026, 11:02 am: The post originally said that "in Little v. Llano County (5th Cir. 2025), a 10-7 Fifth Circuit en banc majority concluded that the government can pick and choose what books can be removed from public or public school libraries, because the contents of libraries are government speech." That was an error on my part: Only 7 judges of the majority had taken the view; the 10 judges reached the same result, but on the grounds that people don't have a "right to receive information" via government-run libraries. My apologies for the error, which I've corrected above.

The post Iowa Law Barring Books with "Descriptions or Visual Depictions of a Sex Act" from Public School Libraries Upheld appeared first on Reason.com.

First, some backstory from NBC News (Gary Grumbach & Dareh Gregorian):

[Tina Marie] Peters was convicted of four felony and three misdemeanor charges in August 2024 for using another person's security badge to allow someone associated with MyPillow founder Mike Lindell, a prominent election denier and ally of President Donald Trump, access to county election equipment involving Dominion Voting Systems.

In Thursday's long opinion in People v. Peters, Colorado Court of Appeals Judge Ted Tow, joined by Judges Craig Welling and Lino Lipinsky de Orlov,  decided Thursday by the Colorado Court of Appeals, in an opinion by Judge Tow, affirmed the conviction, holding (among other things):

1. President Trump's pardon of Peters could only affect federal offenses, and not the state offenses for which he was convicted (a pretty well-settled principle, since the pardon power extends only to "offenses against the United States," which is generally understood as violations of federal law).
2. Peters didn't have any Supremacy Clause immunity from state prosecution, because such immunity just affects federal officers discharging their federal responsibilities.
3. There was sufficient evidence that Peters was responsible for false representations alleged by the prosecution.

But the court concluded that Peters' sentencing (which led to a sentence of 6 months in jail plus 8¼ years in prison) violated the First Amendment by "punish[ing] her based on her protected speech regarding allegations of election fraud":

During sentencing the court said,

There are many things in my mind that are crystal clear about this case. You are no hero. You abused your position and you're a charlatan who used and is still using your prior position in office to [peddle] a snake oil that's been proven to be junk time and time again. In your world, it's all about you.

The court later said,

So the damage that is caused and continue[s] to be caused is just as bad, if not worse, than the physical violence that this court sees on an all too regular basis. And it's particularly damaging when those words come from someone who holds a position of influence like you. Every effort to undermine the integrity of our elections and public's trust in our institutions has been made by you. You've done it from that lectern. The voting public provided you with everything you've done has been done to retain control influence [sic]. The damage is immeasurable. And every time it gets refuted, every time it's shown to be false, just another [tale] is weaved.

… "[A] court may not punish an individual by imposing a heavier sentence for the exercise of [F]irst [A]mendment rights…. A sentence based to any degree on activity or beliefs protected by the [F]irst [A]mendment is constitutionally invalid." …

Courts have affirmed sentences premised on speech or associational activity when it was relevant to the sentencing decision. See, e.g., United States v. Stewart (2d Cir. 2012) (explaining that the defendant's public statements were relevant sentencing considerations because they demonstrated her lack of remorse and belief that her previous sentence was not serious); United States v. Simkanin (5th Cir. 2005) (noting the district court's finding that the defendant's "membership in a group with radical views rejecting the laws of the United States and … professed beliefs that he is not required to abide by the tax laws would lead him to commit other tax-related crimes"); People v. Tresco (Colo. Ct. App. 2019)  ("[W]e conclude that evidence of gang affiliation is not per se inadmissible during sentencing if it is related to the nature of the offense and the defendant's character, not merely his abstract beliefs."); State v. Warfield (Idaho Ct. App. 2001) (holding that, in imposing sentence, the trial court properly considered the defendant's statement that he spared the victim's life only because she was white and explaining that the defendant's "racist belief system was relevant in assessing the danger he present[ed] to society, a factor that is unquestionably legitimate for consideration by a sentencing court"); State v. Schreiber (Wisc. Ct. App. 2002) (concluding that the trial court did not err by considering the defendant's poetry in imposing sentence because the poems reflected the defendant's violation of his parole condition that he refrain from gang activity).

In Colorado, sentencing courts are to consider "the nature of the offense, the character and rehabilitative potential of the offender, the development of respect for the law and the deterrence of crime, and the protection of the public." Here, the trial court's comments about Peters's belief in the existence of 2020 election fraud went beyond relevant considerations for her sentencing. Her offense was not her belief, however misguided the trial court deemed it to be, in the existence of such election fraud; it was her deceitful actions in her attempt to gather evidence of such fraud. Indeed, under these circumstances, just as her purported beliefs underlying her motive for her actions were not relevant to her defense, the trial court should not have considered those beliefs relevant when imposing sentence.

To be sure, many of the trial court's statements indicated wholly appropriate considerations. The court's view that Peters was motivated by self-promotion and self-interest, for example, was fully within the court's discretion to articulate and consider, as was her evident lack of remorse. But several specific statements can be read only as the infliction of punishment because of Peters's beliefs and statements about election fraud. For example, the court noted that her "words" were particularly damaging because of the position of influence she held; and it noted that every time her beliefs were refuted, she would make a new claim….

The tenor of the court's comments makes clear that it felt the sentence length was necessary, at least in part, to prevent her from continuing to espouse views the court deemed "damaging." But the court failed to acknowledge that Peters is no longer the Mesa County Clerk and Recorder. She is no longer in a position to engage in the conduct that led to her conviction. So it cannot be said that the lengthy prison sentence was for specific deterrence. To the contrary, the sentence punished Peters for her persistence in espousing her beliefs regarding the integrity of the 2020 election.

For these reasons, we conclude that the trial court obviously erred by imposing sentence at least partially based on Peters's protected speech. See Dawson v. Delaware (1992) (concluding that the defendant's "First Amendment rights were violated by the admission of … Aryan Brotherhood evidence … because the evidence proved nothing more than [the defendant's] abstract beliefs"); Stewart ("It is impermissible to sentence a defendant more harshly based on associations that do not relate to specific criminal wrongdoing, for example, or for beliefs that some might find morally reprehensible, or for critical statements made in public because they were made in public.")….

Thus, we must remand the matter for resentencing. In doing so, we reject Peters's conclusory and undeveloped request to require that the case be assigned to a different district court judge. Any such request must first be pursued in the district court….

The post Mesa County Clerk Sentence Violated First Amendment by Relying on "Her Protected Speech Regarding Allegations of Election Fraud" appeared first on Reason.com.

An excerpt from the 12K-word opinion in Heimkes v. Fairhope Motorcoach Resort Condo. Owners Ass'n, Inc., decided Tuesday by Judge Terry Moorer (S.D. Ala.):

Attorney Franklin Hollis Eaton, Jr. filed several pleadings which contained fabricated citations and false statements of law that he failed to check or correct prior to submission. The Court had already discovered problems with Mr. Eaton's filings when Defendant filed its first motion flagging numerous misstatements of law. The Court then issued two show cause orders regarding the misstatements, which were partially acknowledged by Mr. Eaton, though he has failed to fully and accurately address the Court's numerous concerns despite as many opportunities to do so.

From the outset, the Court notes that this case is not just about Mr. Eaton's most recent misstatements of law, but rather about a pattern of conduct throughout this case that raises significant concerns about his competency to practice law. In sum, the misstatements and misrepresentations were just the final straw. After a careful review of the matter, the Court finds that Mr. Eaton's conduct amounts to bad faith. Therefore, the Court SANCTIONS him under Rule 11, Alabama R. 3.3, and the Court's inherent authority and ORDERS as follows:

1. Attorney Franklin Hollis Eaton, Jr. is hereby REPRIMANDED and this reprimand shall be published as follows:
   1. Attorney Franklin Hollis Eaton, Jr. shall file, not under seal, a copy of this Memorandum Opinion and Order in any case in any court wherein he has appeared as counsel and final judgment has not been entered;
   2. Attorney Franklin Hollis Eaton, Jr. shall file, not under seal, a copy of this Memorandum Opinion and Order in any case in any court wherein he appears as counsel for twelve (12) months after the date of this order;
   3. Attorney Franklin Hollis Eaton, Jr. shall provide a copy of this Memorandum Opinion and Order to any jurisdiction in which he is licensed to practice law within two (2) business days of the issuance of this order. He shall further file a notice of compliance with the Court no later than the third business day from the date of this opinion.
   4. The Clerk of Court shall send a copy of this Memorandum Opinion and Order to the General Counsel of the Alabama State Bar for review. Though referred to the Alabama State Bar for any disposition it deems appropriate, the undersigned regrettably recommends that Attorney Franklin Hollis Eaton, Jr. be found incompetent to practice law.
   5. The Clerk of Court shall send a copy of this Memorandum Opinion and Order to the Chief Judges for the Northern District of Alabama, the Middle District of Alabama, and the Southern District of Alabama.
   6. To further effectuate the reprimands and deter similar misconduct by others, the Clerk of Court is DIRECTED to submit this order for publication in the Federal Supplement.
2. Franklin Hollis Eaton, Jr. shall pay attorney fees in the amount of $55,597.00 to Defense counsel for their time spent addressing Mr. Eaton's misstatements of law.
3. Pursuant to S.D. Ala. GenLR 83.4(a) and (h)(1), the undersigned refers to the Judges of the Southern District of Alabama a review of Franklin Hollis Eaton, Jr….

The court begins by pointing to a wide range of past behavior by Mr. Eaton:

This opinion is the result of the cumulation of numerous issues regarding the conduct of Attorney Franklin Hollis Eaton, Jr. ("Mr. Eaton"). First, near the outset of this case, Mr. Eaton failed to include a jury demand in both complaints. Though he later stated during the scheduling conference that he wanted a jury, he still failed to make the proper request. The Court laid out a roadmap early on for how Mr. Eaton should proceed to demand a jury, yet he failed to follow it. While not sanctionable, this was the first instance where the Court saw Mr. Eaton display a lack of diligence.

Next, the Court notes that Mr. Eaton kept running into problems with co-counsel, to the point where they would seek to withdraw. Correspondence between Mr. Eaton his co-counsel also indicated that Mr. Eaton would file motions over their objections or would place their signature on the motions without consent.

The next incident demonstrating Mr. Eaton's lack of diligence which came to the attention of the Court was when Mr. Eaton failed to engage with counsel for Defendant in drafting and contributing to the joint pretrial document, as required by the Court's standing pretrial order. See The Court could have dismissed the case at that point, but it chose not to, so as not to punish the clients for Mr. Eaton's lack of diligence, again.

As for trial, Mr. Eaton informed the Court at the pretrial conference that he anticipated that he would need "two days […] [i]f not less" to present the liability portion of the case. Mr. Eaton ultimately took approximately 12 days to present his case, 6 times the estimate he provided during the pretrial conference.

As the Court reflects on the trial, it agrees that Mr. Eaton's liability portion should have only taken approximately two days in the hands of competent counsel. Yet, Mr. Eaton appeared [at] trial woefully unprepared—so unprepared, in fact, that the Court found it needed to impose time limits to Mr. Eaton's questioning of witnesses to keep things moving. Prior to imposing the time limits, which the Court was loathe to do, the Court mentioned the plodding, rambling, unfocused, nature of the examinations in hopes that Mr. Eaton would keep things moving and on task. Mr. Eaton often appeared unsure of what questions to ask the witnesses that he chose to call during his presentation of the evidence, instead coming up with questions on the fly and going on a fishing expedition for information which seemed largely irrelevant to the case at hand.

In many instances, several minutes would pass between the witnesses answering a question and Mr. Eaton asking the next question. It appeared that he called witnesse[s] simply because they appeared in the gallery to watch, and to serve as discovery for his related state cases. Mr. Eaton's lack of preparedness at trial resulted in substantial delays that, quite frankly, wasted the Court's time.

Even before, and certainly by the conclusion of trial, the Court had increasing concerns about Mr. Eaton's competency to practice law. The Court opted not to consider sanctions at those prior junctures because the case was almost over and the Court did not want the poor and ineffective advocacy infecting the merits of the case. In fact, the Court was able to rule on the merits of this case after the bench trial, without any sanction issues impacting the ruling.

In this sanction opinion, though, the Court must consider what has transpired during the course of this case. After the conclusion of the bench trial, the Court's concerns mounted when Mr. Eaton made several misstatements of law and misrepresentations to the Court, which were the subject of the Court's show cause orders and which the Court will now address in detail.

On July 15, 2025, Mr. Eaton filed a response in opposition to the Defendant's motion for directed verdict. The Court noticed blatant discrepancies in his citations and began a review.

Defense counsel also noticed the issues but moved faster on the record than the Court did. Defendant filed a motion to strike the response and a motion for sanctions, noting several misrepresentations of the law and citations to cases that do not exist.

In light of the seriousness of the issues, the Court continued its independent search related to the citations at issue. Regarding the cases that allegedly do not exist, the Court's search revealed the same problems identified by Defendant in its motion and the allegations made by the Defendant were correct: the cases either do not exist, citations did not go to the referenced names, and/or the cases did not relate to the issues at hand. For the cases that relate to misrepresentations or false quotations, the search did not fare any better for defending the use of those citations in the manner and context given. Finally, the Court reviewed each citation provided by Mr. Eaton in the pleading at issue and found additional misstatements of the law not noted by Defendant. [Further details omitted. -EV] …

[W]henever the Court expresses issues with the timeliness of Mr. Eaton's filings, Mr. Eaton often blames an illness that he claims often prevents him from working. Mr. Eaton again, during trial held during the Summer of 2025, claimed that the same illness prevented him from being fully prepared to try this case that had been lingering since 2022. He claims his mysterious illness prevented him from properly demanding a jury, which resulted in this case being tried as a bench trial rather than a jury trial. He claims this illness prevented him from fully complying with discovery orders and from being able to efficiently question witnesses that he chose to call at trial—unnecessarily dragging out proceedings far beyond the number of days he stated he would need to try the case.

The Court concludes at this point that Mr. Eaton demonstrates an unwillingness or inability to meet the minimum standard of competence to practice law. He has demonstrated incompetence throughout these proceedings, which have ultimately culminated in numerous misrepresentations of the law, as outlined in this Court's previous show cause orders….

The Court … has no difficulty finding that Mr. Eaton's misconduct was more than mere recklessness. The Court notes that errors can happen in filings despite attorneys' (and even judges') best efforts. Yet the insertion of bogus citations and misrepresentation of authorities is not a mere typographical error, nor the subject of reasonable debate. It is just wrong. The Court tried, in two separate show cause orders, to bring Mr. Eaton's attention to the various issues with the authorities he cited. And, despite filing numerous responses, Mr. Eaton never fully addressed all of the Court's concerns or corrected all of the misrepresentations.

He further failed to participate in this process by showing up to the first show cause hearing entirely unprepared, and then repeatedly requesting continuances and creating excuses for why he was unable to attend future hearings. The Court finds that Mr. Eaton is either lying about his health situation or, if true, he is no longer capable of practicing trial law and should file for disability. Thus, the Court will impose an appropriate sanction under the various authorities the Court has at its disposal….

The court then concluded that Mr. Eaton should paid the defendants for their time spent dealing specifically with his "misstatements of law" (not the other misconduct that the court had discussed as part of the background of the case):

Defendant claims its attorneys expended a total of 218.9 hours of work in this matter, which includes 83.6 hours by Mr. Dunagan, 33.6 hours by Mr. Harrell, and 78.7 by Mr. Lawley, 1.1 hours by Ms. Wolf, 17.6 hours by Ms. Baker, and 4.3 hours by Ms. Oakes. The accounting of the attorney and paralegal work that was performed in this matter includes a description of the work performed, amount of time expended to perform the work, the date the work was performed, the hourly rate, and the total amount billed for the described work based on the hourly rate and time expended.

Each time entry provides a detailed description of the specific work that was performed, and there are no instances of block billing. While 218.9 hours may initially seem like a lot, the Court spent a similar amount of time addressing the various misstatements of law by Mr. Eaton between cite checking everything, drafting orders, and reviewing Mr. Eaton's responses to the show cause orders. Thus, the Court is acutely familiar with the amount of time it took to address this particular issue and finds that 218.9 hours is reasonable, as the Court staff similarly spent countless hours reviewing these matters….

Defendant requests an hourly rate of $205 for Mr. Dunagan and Mr. Harrell, $359 for Mr. Lawley, $190 for Ms. Wolf and Ms. Baker, and $110 for Ms. Oakes…. The Court finds the hourly rates that were charged are all reasonable. In fact, all of the rates charged in this matter are lower than the rates that this Court has more recently found to be reasonable….

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At various times from July to October, 2025, Mr. Murfin allegedly posted the following five statements on the social media platform, "X" (formerly known as Twitter) under the alias "Azulenq":

"Need too start shooting these 'just following orders' pigs. Ice agents are reenacting ww2 nazi germany and its not acceptable. Only good ice terrorist is buried 6 feet under.";

"Every ICE agent needs shot between the eyes 'just following orders' isn't acceptable and they already exposed they are human garbage.";

"Every Ice gestapo needs too be shot. 2nd amendment right too carry everyone should stay armed and when these terrorists come by just kill them. They dont deserve too live after 'just following orders' we aren't reliving ww2 germany. They dont want due process so show em.";

"but we as US citizens should be gunning down these domestic terrorists. All ice gestapo can not use the 'just following orders' excuse. If you're complicit in this act you've gotta be executed for this act."; and

"Yeah ICE agents need to get shot in a 3,959 mile radius no where safe for gestapo pigs."

Murfin was prosecuted under federal threat statutes, and the court allowed the case to proceed:

[The relevant statutes] "apply only to 'true threat[s]'—i.e., threats outside the protective scope of the First Amendment." "The Supreme Court in Virginia v. Black (2003) defined 'true threats' as 'statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.'" The speaker, however, "need not intend to actually act upon the threat." As the Tenth Circuit has explained:

It is not necessary to show that [Mr. Murfin] intended to carry out the threat, nor is it necessary to prove he had the apparent ability to carry out the threat. The question is whether those who hear or read the threat reasonably consider that an actual threat has been made. It is the making of the threat and not the intention to carry out the threat that violates the law.

U.S. v. Dillard (10th Cir. 2015). A true threat must be "a serious threat as distinguished from words as mere political argument, idle talk or just." … When analyzing a statement's language, the Tenth Circuit has "warned against 'rigid adherence to the literal meaning of a communication without regard to its reasonable connotations ….'" "A defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of 'someone' committing an act of violence, so long as a reasonable recipient could conclude, based on the language of the communication and the context in which it is delivered, that this was in fact a veiled threat of violence by the defendant …" Dillard.

Upon review of the indictment and the briefs submitted by the parties, the court concludes that a reasonable jury could construe Mr. Murfin's statements to be true threats—that they are statements where the speaker means to communicate serious expressions of intent to commit acts of unlawful violence to a group of individuals. Mr. Murfin targeted messages of deadly action at ICE agents generally: "Need too start shooting these 'just following orders' pigs …. Only good ice terrorist is buried 6 feet under."; "Every ICE agent needs shot between the eyes"; "Every Ice gestapo needs too be shot …. everyone should stay armed and when these terrorists come by just kill them."; "we as US citizens should be gunning down these domestic terrorists …. If you're complicit in this act you've gotta be executed for this act"; "ICE agents need to get shot." Mr. Murfin's statements are similar to those in Stevens and Tinoco, where the defendants also targeted messages of deadly action at a particular law enforcement officer or a group of law enforcement officers generally. U.S. v. Stevens (10th Cir. 2018) ("The psychotic pile of s--- who MURDERED the unarmed civilian who broke down is going to be executed …. unless the Prosecuter [sic] & the Judge deny bail, they too will be executed …. The Tulsa PD Chief is going to be killed …. EVERYONE on that list is going to start being killed. Cops, Prosecutors, Judges, family members …. If killing every last one of you … is what it takes to drive that point home, so be it …. Cops are going to be killed …. Betty is not going to get 3 yeas [sic] probation and a pension, she is getting a bullet through her brain."); U.S. v. Tinoco (10th Cir. 2018) (Mr. Tinoco said, "[i]f [the United States Border Patrol agents] were iron deficient, [Tinoco] had banana clips for [the agents], and [Tinoco] could give [the agents] iron and potassium"; "I'm going to have your head"; [l]et's have a shootout and end this right now …. I've been at shootouts before. I know what I'm doing"; and "I can be sure to come at your brain with a hammer drill as if I was searching for fucking gold").

Mr. Murfin cannot escape liability by couching the statements in terms of a "need" to shoot or execute ICE agents. A reasonable reader of Mr. Murfin's statements could conclude that the statements are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a … group of individuals." Furthermore, a reasonable jury could find the statements to constitute serious threats as distinguished from "mere political argument, idle talk, or jest." "[R]igid adherence to the literal meaning of a communication without regard to its reasonable connotations … would render the statute[s] powerless against the ingenuity of threateners who can instill in the victim's mind as clear an apprehension of impending injury by an implied menace as by a literal threat." …

With respect to statements posted on the Internet, the Circuit has noted:

Several attributes of the Internet substantially amplify the fear an individual can instill via threats or incitement. Such threats have the ability to reach a vast audience—far more than the traditional speaker or author published in a single venue. The threats may often come cloaked in anonymity, allowing authors to make menacing statements they would never consider making to an individual in person. And, given the prevalence and diversity of Internet fora and discussion boards, such exhortations may often find a receptive audience of like-minded individuals—perhaps audiences more willing to do the bidding of one urging violent action….

For these reasons, the court concludes that a reasonable jury could find that Mr. Murfin's statements constituted true threats….

Mr. Murfin also argues that the Indictment should be dismissed with prejudice because plaintiff cannot plausibly make out a cognizable claim that his statements constitute incitement to imminent lawlessness or violence under Brandenburg v. Ohio (1969). "Under Brandenburg v. Ohio [395 U.S. 444, 447 (1969)], incitement speech is unprotected only if it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'" "But the line between threats and incitement, especially in cyberspace" is unclear "and no court has suggested that the categories of unprotected speech are completely distinct from one another." Speech such as Mr. Murfin's "fits squarely within the rationale for excluding true threats from First Amendment protection." Dillard ("Imminence may contribute to a finding that a communication constitutes a true threat, but it is not a required element.")….

For a similar recent decision, see the post See MAGA, Shoot MAGA" in TikTok Video Was Criminally Punishable Threat. For an older case along these lines, see U.S. v. Hussaini (S.D. Fla. 2022):

Mostafa Hussaini posted two videos on YouTube: in the first, he threatened to kill Christians by stabbing out their eyes with a knife; in the second, he promised to murder Black people by burning their bodies in a fire. After a concerned citizen brought the videos to law enforcement's attention, a grand jury in our District indicted Hussaini on two counts of violating 18 U.S.C. § 875(c), which prohibits the transmission, in interstate or foreign commerce, of "any communication containing … any threat to injure the person of another." …

[But i]t's … no surprise that the only federal circuit court of appeals to address [the] question … whether § 875(c) requires that the threat be directed at a specific individual or group … has squarely rejected Hussaini's position. See U.S. v. Cox (6th Cir. 1992) ("Cox would avoid responsibility under [§ 875(c)] by claiming that the alleged threat did not identify any specific person or group. We do not read the statute to be so limited, and Cox cites no cases that have placed this restrictive interpretation on the statute.")….

AUSA Stephen N. Scaife represents the government.

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For a variety of reasons, I oppose Donald Trump's efforts to end birthright citizenship for children of undocumented immigrants and those in the US on temporary visas. And I have argued he deserves to lose the Supreme Court case on this issue. But unlike many other opponents of Trump's policy and of his constitutional arguments, I am not convinced birthright citizenship is the ideal  system. It is, at most, only a second-best option, in the sense that it's better than the currently likely alternative.

Under current political conditions, that likely alternative is subjecting hundreds of thousands of children to deportation, and many adults, as well. Even though Trump's executive order is limited to children born at least 30 days after it was issued, the logic of his legal arguments would deprive millions of adults and older children of their right to live in the United States, as well. If the Fourteenth Amendment denies birthright citizenship to children of undocumented immigrants and temporary visa-holders, that fact did not begin suddenly in 2025, but must have been true all along. Thus, the likely consequence of a legal victory for Trump would be grave harm to millions of children and descendants of immigrants, plus severe damage to the American economy and society from the resulting deportations and legal uncertainty. In addition, millions of other Americans would find it difficult to prove citizenship status if it can no longer be done on the basis of a birth certificate.

But while birthright citizenship is better than the likely alternative at this point in history, I do not believe it is the ideal policy. I explained some of the reasons why in a 2018 post:

Unlike most other advocates of immigration and immigrant rights, I have significant reservations about birthright citizenship. In my view, important human rights should not be so heavily dependent on parentage and place of birth. Our current citizenship system has all too much in common with medieval hereditary aristocracy, under which freedom of movement and other crucial rights were largely dependent on ancestry. I cannot outline anything like a comprehensive alternative here. But, as a general rule, I would prefer a system under which some rights now largely determined by citizenship (particularly freedom of movement, residency, and employment) were delinked from citizenship and made presumptively available to everyone, and citizenship itself were made easier to acquire through pathways that do not require the applicant to be a relative of a current citizen.

More generally, one of my (and many others') main objections to immigration restrictions is that they restrict people's liberty and opportunity based on arbitrary circumstances of ancestry and place of birth.  If you were born to the right parents or in the right place, you get to live and work in the US; if not, you can only do so if the government gives you permission, which in the vast majority of cases is likely to be denied. In that respect, they are very similar to racial segregation and South African apartheid. In both cases, liberty is gravely restricted and many are consigned to a lifetime of poverty and oppression because of morally arbitrary circumstances of birth over which they have no control.

Birthright citizenship is an improvement, in this respect, over a policy based on ancestry and parentage. For many children, it creates an alternative pathway to get around unjust restrictions. But it still restricts liberty and opportunity based on circumstances of birth, in this case based on place of birth, as well as parentage. And people have no more control over the location of their birth than over the identity of their parents. Neither determines your moral worth or how much liberty you are entitled to.

Thus, the far superior policy is simply to let people live and work where they want, regardless of who their parents are or where they were born. If that liberty is to be restricted, it should be only if the people in question pose some grave danger that cannot be addressed in other ways. And, in such extreme situations, native-born people's liberty could potentially be restricted, as well. I develop these points in greater detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

Obviously, under current circumstances, citizenship includes not only the right to live and work in the US, but also rights to vote, hold public office, and receive various welfare benefits. In an ideal system, restrictions on voting and office-holding would be based on competence and (in some cases) there might be exclusions based on a demonstrated danger to liberal democratic institutions (as with Section 3 of the Fourteenth Amendment, which the Supreme Court wrongly gutted, to a large extent). We already have some competence-based constraints on the franchise, such as excluding children, some convicts, and immigrants who cannot pass a civics test most native-born Americans would fail if they had to take it without studying.

Access to welfare benefits should, I believe, be much more severely limited than is currently the case for both immigrants and natives. But even now the vast majority of immigrants contribute more to the public fisc than they take out, and limiting the welfare state is a bad argument for immigration restrictions that - if applied consistently - would also justify severely restricting many other liberties.

Thus, the ideal political system would have a strong presumption against restrictions on migration, while also imposing competence-based constraints on voting rights and office-holding, and limiting welfare benefits in various ways. We need some combination of decoupling citizenship from freedom of movement, constraints on access to government power, and limiting welfare benefits to a class of people who genuinely cannot avoid severe privation without them. And none of these rights and privileges should be, to any great extent, based on parentage or place of birth.

But, obviously, there are serious questions about whether governments can draw these lines in the right places and be trusted not to abuse their powers. Elsewhere, I have argued that we probably cannot rely too much on competence-based restrictions on the franchise, because real-world governments generally cannot be trusted in this field. We should instead address the problem of voter ignorance and bias by other means. It is also obvious that we are not going to get anywhere close to full freedom of movement for migrants anytime soon.

For these kinds of reasons, I think birthright citizenship for all people born in the United States is the best available option at this time. That's especially true because it does not preclude creating and expanding other pathways to residency, work rights, and citizenship. But we should  be under no illusion that it is anywhere close to ideal, and we should remember that it includes an important element of unjust discrimination based on arbitrary circumstances of birth.

In this case, as with other situations involving unjust discriminatory immigration restrictions, the right approach to arbitrary discrimination is to "level up" rather than "level down." We should not deny birthright citizenship to those who currently enjoy its benefits. But we should also do all we can to expand these opportunities to others.

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Mr. Riera was employed in a fixed term, non-tenure track faculty at Central Washington University (CWU)…. On the morning of April 1, [2024,] Mr. Riera called the CWU police to report an older, "apparently homeless," woman wandering around Samuelson Hall. He said he wanted to make a report "before things get … out of control." An officer reported to Samuelson Hall and confirmed the identity of the woman as a CWU professor. No further action was taken by campus police or Mr. Riera.

The CWU professor shared her experience with two colleagues. The colleagues immediately filed bias complaints with CWU, alleging the target of Mr. Riera's call—a Black woman—had been the victim of racial profiling.

This led to a great deal of institutional response, including a discussion at a faculty senate meeting. Defendant Erdman, "a lecturer at CWU and member of the faculty senate, emailed unofficial minutes [of the meeting] to non-tenured faculty," and her notes included this:

Welcome to the Deep South, Circa 1935

Without naming names or describing the incident, [CWU President] Wohlpart expressed his outrage at a recent unconscionable incident on campus.

From my own knowledge, I think I can tell you the basics: It was an incident of blatant racial profiling. Campus police were called because a person of color was sitting quietly in the lobby of a CWU building for a brief interval. The person turned out to be a highly distinguished faculty member—but was compelled to produce and show ID before being left in peace.

(I must remark that this is outrageous on multiple levels. All CWU buildings are public; they belong to the State of Washington and its people. Anyone may sit in the lobby of any of our buildings. There was no reason at all to call the police—except, I guess, that this was a person of color.)

Wohlpart called the incident "unacceptable" and said that Central is working to see to it that such a thing doesn't happen again on our campus….

Riera sued Erdman, among others, and the court allowed his defamation claim to go forward in part:

[M]ost of [Erdman's] statements cannot be characterized as false. The only exception is Defendant Erdman's statement that what happened on April 1 "was an incident of blatant racial profiling." A jury could conclude this statement falsely asserts that the person who called police on April 1 engaged in intentional racial profiling. And, given widely-shared public records revealed Mr. Riera as the caller, a jury could also conclude Defendant Erdman's statement was about Mr. Riera.

Defendants argue that regardless of truth or falsity, Defendant Erdman's statement cannot be considered defamatory because it falls under the common interest privilege. "The common interest privilege applies with the declarant and the recipient have a common interest in the subject matter of the communication." The privilege applies to "persons involved in the same organization, partnerships, associations, or enterprises who are communicating on matters of common interest." Examples include officers of a nonprofit association or partners to a partnership. The privilege arises "when parties need to speak freely and openly about subjects of common organizational or pecuniary interest." …

If the privilege exists, it can be lost in two circumstances (1) if the speaker is not acting in the ordinary course of their work or (2) the speaker's statement was made with actual malice; i.e., reckless disregard for the truth. Whether the privilege has been lost under either scenario is a question of fact.

Here, the parties appear to agree that members of CWU's faculty senate are members of the same organization who share a common interest. The dispute lies in whether an exception applies.

The Court concludes there are issues of fact regarding whether Defendant Erdman's statements fell outside the scope of the privilege. Going to the first exception, Defendant Erdman had no official responsibility for taking notes at faculty meetings and she was not required to share her notes with other members of the senate faculty. A jury could therefore conclude that her statements were outside the ordinary course of her work as a member of a senate. With respect to the second exception, Defendant Erdman was not a witness to the April 1 incident and no investigation had yet taken place. A jury could therefore conclude Defendant Erdman was reckless in asserting that the call to CWU police was an act of blatant racial profiling…. [T]he allegations against Defendant Erdman raise questions of fact that must be resolved by a jury.

The post Accusing Someone Who Called Police of "Blatant Racial Profiling" May Be Defamation appeared first on Reason.com.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

The day draws near for IJ's upcoming conference "The Other Declarations of 1776." As part of the nationwide celebration of 250 Years of America, we're partnering with the Liberty & Law Center at Scalia Law School for an examination of the various declarations of rights that the new states adopted in 1776. It's Friday, April 10 in Arlington, Va. You can still register here! And, if you want to learn more about those Other Declarations in the meantime, check out our series of blog posts, covering Virginia, Pennsylvania, Maryland, Delaware, and, new this week, North Carolina.

New on the Short Circuit podcast: A certification request from the Eleventh Circuit to the Alabama Supreme Court radicalized IJ's Mike Greenberg into Erie abolitionism.

1. If you like comparing the EPA to the DMV then you'll love how the D.C. Circuit disapproved of the feds delegating endangered species compliance to the state of Florida. Well, you'll love the lead opinion. The concurrence only joins in part and takes issue with the DMV hypo while the dissent bequeaths an "in-the-weeds discussion of various overlapping environmental laws."
2. Sometimes you can tell the clerk judge had a fun time writing an opinion. Such as this First Circuit decision. A sample of the literature: "Meet the Ponzo brothers, Chris and Joe . . . How the Ponzos became crooks and what they want from us is kind of a long story. But here's the short version . . . Life was good for the millionaire brothers. But the government eventually caught on."
3. From the annals of "litigation takes a long time": Eleven American families filed suit in 2004 against the Palestine Liberation Organization and the Palestinian Authority for the Second Intifada terror attacks in Israel. In 2015, a jury sides with the families and they're awarded $655 mil. Second Circuit (2016): Federal courts lack personal jurisdiction over the Palestinian groups for these claims. Congress (2018): Jurisdiction exists if certain requirements are met. Second Circuit (2019): Those requirements aren't met. Congress (2019): What we said before but more. Second Circuit (2023): That violates due process. SCOTUS (2025): It does not. Second Circuit (2026): Okay fine, we recall our mandate from our first go at the case and affirm the judgment and jury award.
4. New York state prisoner arrives at a new facility with too much luggage. The extra items are legal materials he claims he has permission for. A fight ensues with prison staff which leads to disciplinary action which requires more legal materials and evidence. Which the prison denies. He's then sentenced to months of restricted confinement. Gov: There's no liberty interest here. Second Circuit: The conditions were "atypical" so there is and his due process claim can go forward.
5. Trainspotting offers one pathway to giving up addiction. Some prison authorities offer another. But if you're in one of their opioid-addiction programs and you're given alternative, safer opioids, then it's best to not be suspected of dealing those alternatives to other prisoners. If subsequent punishment leads to you going into withdrawal, the Third Circuit tells us it is not an Eighth Amendment violation.
6. Wherein the Third Circuit admonishes and sanctions an attorney in a case where the attorney's client went up against the DEA. The hallucinations at issue are not the DEA's standard fare (whether of drugs themselves or of federal drug policy) but of the AI-induced variety. Things might have gone better had the attorney not doubled down.
7. From the annals of "litigation takes a long time": Angola, Louisiana's notorious prison once dubbed the worst in America, saw multiple preventable deaths as a result of medical care failures, following unheeded or very belatedly heeded complaints. Inmates sued in 2015, it went to trial in 2018, and the district court entered a liability opinion in 2021 with extensive findings of Eighth Amendment violations, followed in 2023 with a remedial opinion that, among other things, established special masters for overseeing ordered improvements. Fifth Circuit (en banc) (over a dissent): Congress enacted the Prison Litigation Reform Act to rein in "judicial adventurism," and federal courts must "maintain a delicate balance among the prerogatives of public institutions, the demands of federalism, and the judiciary's limited remedial role." The remedial order doesn't do that.
8. Texas pretrial detainee gives birth alone in her cell two weeks before she's due; the baby doesn't make it. The jail's medical director didn't read an email that indicated the detainee had refused breakfast and was experiencing abdominal cramps that morning. Fifth Circuit: Qualified immunity. He didn't see the email, how was he to know?
9. Business owner slapped with a $130k restitution order in FINRA and SEC proceedings argues that the Supreme Court's 2024 decision in Jarkesy entitles him to a jury trial in an Article III court. Sixth Circuit: He forfeited that argument by failing to raise it before the SEC. Nevertheless, for the following reasons discussed over several pages, his arguments are strong . . . if only we were able to reach them. Petition for review denied.
10. You'll learn from the Sixth Circuit that there are long-running disputes over when and where the first Kentucky bourbon was distilled. The arguments over "when" are narrower regarding the first bourbon distilled by an African American-owned distiller. That's because the year is either 2018 or 2020, not long before one contender sued the other for false advertising regarding its firstness under the Lanham Act.
11. In further AI-hallucination news, the Seventh Circuit admonished—but did not sanction—an attorney who included two nonexistent sources in a brief. In her favor, she claimed she did not use AI herself (she apparently copied language from a different brief), and she apologized profusely when the court called the errors to her attention. Further, of relevance to litigators everywhere: The court cast shade on opposing counsel for not catching the errors themselves.
12. Police enter home and arrest a Wisconsin man based on a felony "want"—a type of alert issued by a law enforcement officer saying she believes there's enough evidence for a warrant, but without a judge actually approving one. Seventh Circuit: No matter how much you may want it otherwise, the Fourth Amendment says warrants—and a warrant requires sign-off from a "neutral and detached magistrate." Man's claim for unconstitutional entry into home may proceed. (Ed.: Federal agencies famously active in the Seventh Circuit's largest city may care to take note that warrants must come from a judge.)
13. Those teaching fed courts next term may be interested in a run-of-the-mill adverse-possession squabble over land in Champaign, Ill. that was removed to federal court. District court: I'll keep the issue over subpoenaing Dept. of Ag. officials as witnesses but remand the underlying dispute over building a garage. Seventh Circuit: Affirmed. Just because Congress passed a law in 1785 concerning the land where the properties are does not federal jurisdiction make.
14. Jury finds St. Louis city employee was unconstitutionally fired in violation of the First Amendment because she reported corruption at the city tow lot where employees were more-or-less stealing nicer cars. Eighth Circuit: Defendant forfeited qualified immunity defense by not meaningfully raising it until post-briefing 28(j) letters. Also, as you would have learned from watching Liar, Liar, "the federal rules of evidence do not offer protection against evidence that is prejudicial in the sense that it is detrimental to a party's case."
15. Come for the Eighth Circuit upholding a P.I. enjoining an Arkansas rule requiring a "wet signature" to register to vote. Stay for the dissent chronicling the centuries-long march from a wax-seal-based system of proving authenticity to a written-signature one.
16. According to its text, the Eleventh Amendment prevents suits against states in federal court by people from other states or countries. According to the courts, it prevents all kinds of other stuff. The Eighth Circuit says you can now add to that list third-party discovery propounded by the estate of a mentally ill man whose death may have been made more likely by sending in a state-owned light-armored vehicle.
17. During protests in Southern California against ICE tactics in summer 2025, journalists get caught in the pepper-ball crossfire. Press organizations obtain a P.I. against the feds to prevent methods where sometimes "officers issued no warnings and shot individuals who posed no threat." Ninth Circuit: With the Boston Tea Party as prologue, we agree that the plaintiffs are likely to end up victorious. But the injunction's too much; remand to redraw.
18. Allegation: Tulsa police officer shoots dead a non-threatening, mentally ill (or high) man who had his hands raised. District court: Right but show me a prior case that says an officer can't shoot a non-threatening, mentally ill (or high) suspect who was in an open space and slowly walking away from an officer toward a parked car while ignoring commands to kneel and then lowered one arm when he got close to the car door. Qualified immunity. Tenth Circuit: Reversed. We're not sure he lowered his arm, and anyway the prior case on point doesn't have to be that on point.
19. Atlanta police officer's already choppy relationship with his superiors (he previously accused them of racial discrimination) doesn't improve after he reports them for downgrading traffic tickets issued to the former mayor's grandson. One week later, the officer learns his flexible shift schedule, a privilege that he's relied on for years, will now be "fixed." He sues alleging, inter alia, First Amendment retaliation. The district court granted summary judgment for the city on all claims. Eleventh Circuit: Mostly affirmed, but a jury could find the officer's superiors had a retaliatory motive for pulling his flexible schedule, in which case they would not be entitled to QI. To a jury it goes. Affirmed in part, reversed in part, and remanded.
20. Medically complex Florida children need skilled nursing to stay out of pediatric nursing homes, but nearly 94% of them receive fewer hours than authorized. In 2013, DOJ sued, alleging discrimination under the ADA. Eleventh Circuit: The feds can sue on behalf of all affected kids, not just the one who filed an administrative complaint; risk of institutionalization (not just actual institutionalization) gives rise to Title II claims, joining six circuits over the Fifth; and system-wide injunction based on widespread violations affirmed in the main. Dissent: That overstates the circuit split and, regardless, we're on the wrong side of it.
21. And in en banc news, the Ninth Circuit will not reconsider (but did amend) its decision holding that the Mandatory Victims Restitution Act allows the garnishment of funds in an inmate's trust account coming from gradual accumulations from family and friends.
22. And in cert denial news: For nearly 20 years, a Midland County, Tex. prosecutor was arguing to put people in jail by day while secretly working as paid law clerk for the county's judges at night, drafting rulings in favor of the prosecution, including in his own cases. Per the Fifth Circuit, that's "utterly bonkers," but also not something IJ client Erma Wilson, who was wrongly convicted, can bring a civil rights claim about. This week, SCOTUS declined to take up the case. What the Heck.

Victory! On Tuesday a federal court ruled that the town of Parksley, Va., and a city councilman violated the Fourth Amendment when the councilman cut a water pipe running from the Eben-Ezer Food Truck, causing more than a thousand dollars in food spoilage and damages. The court also found the violation was so outrageous that it denied qualified immunity. The food truck's owners, Theslet Benoir and Clemene Bastien, teamed up with the Institute for Justice (IJ) to sue in January 2024, after the councilman repeatedly harassed them, cut the pipe, and, according to Theslet and Clemene, told them to "go back to your own country."

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April 1, 2026 was an even busier day than I expected. The New York Times reports:

On Wednesday, the 60-year-old Ms. Bondi, downcast but determined, joined Mr. Trump for a glum crosstown drive to the Supreme Court, where they watched arguments in the birthright citizenship case. In the car, Mr. Trump told her it was time for a change at the top of the Justice Department.

Ms. Bondi hoped to save her job or, at the very least, buy a little more time — until the summer — to give herself a graceful exit.

She ended up with neither, and grew emotional Wednesday in conversations with friends and colleagues after she realized she was out. The next morning, Mr. Trump made it official, and fired her via social media post.

Bondi then sat next to Trump for nearly an hour. Several reports indicated that Trump sat emotionless during the oral argument. But what was Bondi's demeanor?

Life comes at you fast.

The post The President Told The AG She Would Be Fired During The Car Ride To SCOTUS appeared first on Reason.com.

Yesterday, I submitted this brief as amicus curiae in United States v. Chatrie, the Supreme Court's case on the Fourth Amendment implications of geofencing and geofence warrants.  You can get all of the briefs and materials in the case here. I'll probably blog about the case over the next few weeks, but for now I just wanted to flag my amicus brief.  Here's the Summary of Argument:

The challenge of new technology is a recurring theme in Fourth Amendment law. This case raises a host of new and important questions, and this brief hopes to help frame the issues and provide directions for answering them.

The first set of questions considers whether obtaining Chatrie's Location History records was a Fourth Amendment "search" of his "papers." There are two different arguments to evaluate. The first is the virtual private locker question. Did Chatrie store his Location History records in a virtual private locker with Google, such that he had Fourth Amendment rights in the contents of the virtual locker just as he would with an equivalent physical locker? This brief concludes that the answer is likely no. Although the record is murky on the point, Chatrie likely lacked the control over the records needed to have Fourth Amendment rights in them.

The second search argument considers whether Chatrie had Fourth Amendment rights under the limits placed on the third-party doctrine by Carpenter v. United States, 585 U.S. 296 (2018). This brief argues that he did not. Carpenter does not apply because Chatrie voluntarily opted in to have Google create and store his Location History records.

The next set of issues considers the lawfulness of the warrant, assuming that one was needed. The brief argues that a properly drawn geofence warrant can satisfy the Fourth Amendment. The Fourth Amendment does not present an all or nothing choice between zero protection and absolute protection. Where the law requires a warrant, it also provides a means to draft a lawful warrant.

On the specifics of the warrant in this case, the warrant was properly drawn as to Step 1 because it was sufficiently narrow in both time and space. The constitutionality of the warrant at Step 2 is uncertain, however. It is not clear that the Fourth Amendment allows multi-stage warrants, and the particularity of Step 2 debatable. Chatrie may not have raised these issues as to Step 2, however, so they may be waived.

The fact that this case reaches the Court so late in the Term, and that it raises so many complex issues, suggests that there may be value in pointing to a resolution that might plausibly reach consensus. If so, amicus suggests that the Court might want to resolve this case by focusing primarily on the warrant issues. The legality of the warrant implicates fewer contested questions and has a more complete factual record. For the sake of completeness, however, this brief covers both issues.

The post My Amicus Brief in the Geofence Warrant Case, <i>United States v. Chatrie</i> appeared first on Reason.com.

The Privacy and Civil Liberties Protection Board (PCLOB) has just released a comprehensive staff report on section 702 of the Foreign Intelligence Surveillance Act (FISA). Since Congress must reauthorize section 702 or let it die this month, the report could hardly be more timely. And its conclusions make a strong case for reauthorizing the provision.

• The report reaffirms the value of section 702 intelligence, including queries seeking information on US persons. The PCLOB learned of a number of threats to human life and infrastructure that were thwarted by data gleaned from US person inquiries; more generally, almost two-thirds of the President's Daily Brief contained section 702 information in 2025.
• Compliance is much improved. Targeting compliance continues to flirt with perfection, with compliance rates over 99%. In past reviews of the program, FBI compliance with the US person query rules has been a sore spot. It has triggered heavy Congressional criticism and numerous reforms. The PCLOB reports that the FBI has implemented all of the most recent query rules with 98.5% compliance, and that FBI US person inquiries have continued to drop dramatically, from about 57,000 in 2023 to 7400 in 2025. The PCLOB infers from the decline that statutory and administrative changes are deterring unnecessary queries, but it also raises a concern that the reforms may have made FBI agents reluctant to conduct proper US person queries.

The report is also a fount of information about how section 702 and the statutory changes adopted in 2024 are working.

• It demystifies the debate over an FBI filtering tool. The dropdown menu allowed agents to narrow their queries to focus on particular participants, some of whom might be US persons. Narrowing the data in this way was not originally seen as a separate query but DOJ has concluded it should be. Use of the tool now is recorded and restricted as though it constitutes multiple separate queries.
• It reports on implementation of the expanded definition of "electronic communications service providers" who must intercept communications under 702. The change was made necessary by a narrow FISA court ruling that excluded important intermediaries that have emerged in recent years. Opponents claimed that the new definition would be used to impose intercept obligations on a range of Mom-and-Pop companies; DOJ assured the PCLOB that the expanded definition is being applied only to services that the ruling had unexpectedly put off limits.
• In a section rendered somewhat opaque by classified information rules, the report questions whether the intelligence community is fully carrying out the intent behind Congress's expansion of border vetting using section 702. On the one hand, it notes the intelligence community's view that the expanded focus on drug trafficking has had a "monumental" and "unparalleled" impact on the government's ability to identify transnational criminal activity. On the other hand, it notes that the rules for vetting individuals have not fundamentally changed; in general NSA only disseminates US person information in response to vetting inquiries if the information is necessary to protect against terrorism or drug trafficking and "reasonably believed to contain significant foreign intelligence information." These limitations were imposed after an amicus focused the FISA court's attention on the risk that vetting would lead to disclosure of US persons' identities. I fear the limits may be overkill in the vetting context. If there is evidence in intelligence files that someone seeking to enter the country is tied to an American engaged in drug smuggling, does the American's name have significant foreign intelligence value? If it doesn't, should the information be withheld from border authorities? These are hard questions, and it's not clear how Congress intended them to be answered. Given the limits imposed by its classified nature, I'm not sure we even have enough facts to debate them.
• According to the report, other reforms from 2024 are being carried out without much drama:
  • An FBI internal office now reviews all US person queries and a sample of other queries
  • DOJ also audits every FBI query for US person information on a weekly basis
  • FBI personnel now get training on 702 rules every year
  • FBI agents face additional penalties for negligence and misconduct in making or approving US person queries, and the bonuses and promotions of field office leaders depend in part on their office's 702 compliance record.
  • Amici now comment on all annual certifications of the section 702 procedures (it was this amicus participation that led to additional restrictions on US person disclosures during border vetting)
  • Members of Congress now have some access to FISA court proceedings, but as the PCLOB notes disputes remain over the constraints imposed by DOJ on that access

All in all, the PCLOB report provides a detailed picture of section 702 as it stands today. It may be particularly valuable to members of Congress who didn't want to support reauthorization without an assurance that this administration was implementing the 2024 act's reforms in good faith.  The PCLOB report leaves little doubt on that score.

The post A new report on section 702 of FISA from the Privacy and Civil Liberties Oversight Board appeared first on Reason.com.

Stephanie Foster has a sweet tooth, and she wanted to sink her teeth into a mouthful of chocolate. By the sound of things, Foster is a foodie. She didn't want just any chocolate. She wanted 100% real chocolate.

Foster went shopping at nearby Target and Jewel Osco stores, searching for the best that the cacao bean had to offer. She bought several bags of chocolate chips manufactured by Nestle USA, Inc…. Each bag had a label promising any hungry consumer that the bag contained "100% real chocolate." …

Foster apparently was none too pleased when she realized that the chocolate chips contained soy lecithin and natural flavors. As Foster sees things, chocolate that contains soy lecithin and natural flavors isn't "100% real chocolate." In fact, it's not chocolate at all. So Foster brought Nestle to federal court. She sues on behalf of herself and a putative class [on various misrepresentation-related theories].

For the reasons below, the motion to dismiss is granted. The complaint is half-baked, and is 100% dismissed….

Foster thinks that "chocolate" means that it can "only have ingredients sourced from cacao beans," meaning cocoa butter and cacao. But Foster points out that Nestle chocolate chips also contain soy lecithin or natural flavor.

Soy lecithin is a food additive made from genetically modified soy. It makes chocolate products more viscous, to mimic the consistency of chocolate products that contain only the more expensive cocoa butter.

And "natural flavors" are highly processed food additives that enhance the products' sweet chocolatey taste. Foster says that Nestle uses natural flavors in the products to cut manufacturing and ingredient costs.

In short, Foster alleges that soy lecithin and natural flavors are "inexpensive substitutes for ingredients found in chocolate products that actually contain 100% real chocolate." …

Foster's claims … require a false or misleading statement that deceives a reasonable consumer…. No reasonable consumer would need protection from Nestle's bag of chocolate chips….

Foster believes that she got duped by the phrase "100% real chocolate." … As she sees things, chocolate doesn't have soy lecithin or natural flavors. Chocolate "only ha[s] ingredients sourced from cacao beans, which include cacao (or cocoa) and cocoa butter." …

That theory comes out of thin air. The complaint doesn't cite anything for the notion that chocolate only contains ingredients that come from cacao beans, and nothing else. She doesn't cite a definition of "chocolate." She offers no source for her idiosyncratic understanding of the essence of chocolate. She doesn't cite a consumer survey, either.

No reasonable consumer thinks that chocolate "only" contains the byproduct of cacao beans. For starters, cacao beans aren't sweet. They need sugar. Sugar is a necessary ingredient of chocolate. And sugar doesn't come from a cacao bean….

Chocolate is a composite product. It contains other ingredients, by definition.

The FDA has had a thing or two to say about the essence of chocolate. The FDA recognizes that chocolate is a mixture of many things. See 21 C.F.R. § 163.123 (defining "sweet chocolate" as a mixture of chocolate liquor and "optional ingredients" including cacao fat, sweeteners, spices, natural and artificial flavorings, dairy ingredients, and emulsifying agents). The FDA accepts that chocolate can include "natural and artificial flavorings" and "emulsifying agents."

Soy lecithin—one of the ingredients that Foster challenges—is an emulsifying agent. See National Confectioners Association, Ingredients in Chocolate, https://candyusa.com/story-of-chocolate/what-is-chocolate/ingredients-in-chocolate/ ("Lecithin: An emulsifier, often made from soy, that makes the ingredients blend together.").

The FDA also requires "milk chocolate" and "sweet chocolate" to contain a minimum amount of "chocolate liquor" to be legally labeled "chocolate." In turn, chocolate liquor contains "cacao nibs" and "cacao fat." And chocolate liquor may contain alkali ingredients (i.e., ammonium and potassium), neutralizing ingredients, "spices, natural and artificial flavorings, butter, milkfat, and/or salt."

True, the FDA's definition is hyper-technical, and contains some scientific mumbo-jumbo. The agency uses terms like "semiplastic," "nutritive carbohydrate sweeteners," and so on. But the key point jumps off the page: chocolate is a composite product…. Dictionaries agree that chocolate includes cacoa beans, plus a number of other ingredients.

The fact that chocolate contains more than cacao beans isn't a news bulletin to anyone. "Chocolate is a solid mixture. In its basic form, it is composed of cacao powder, cocoa butter, and some type of sweetener such as sugar; however, modern chocolate includes milk solids, any added flavors, modifiers, and preservatives." See What is chocolate?, MIT Laboratory for Chocolate Science, https://chocolate.mit.edu/science/. In fact, soy lecithin "is quite a common chocolate ingredient, even in the realm of craft chocolate." …

[A] consumer doesn't have to read the fine print on the back of the bag of chocolate chips to figure out that chocolate contains more than cacao beans. The front of the bag tells the consumer everything that he or she needs to know.

"Chocolate" appears on the front of the bag. And reasonable consumers know that chocolate is a composite product and contains several ingredients.

"What matters most is how real consumers understand and react to the advertising." Figuring out that chocolate is more than cacao beans doesn't require consumers to "question the labels they see and to parse them as lawyers might for ambiguities."

Courts don't have to treat consumers like eggshell-skull plaintiffs, wandering bewildered down the grocery aisle in the Land of Confusion. And at some point, it is not asking too much to expect a reasonable consumer to read the list of ingredients if they're unsure….

No reasonable consumer would read the phrase "100% real chocolate" as a representation that the bag contains only the byproducts of cacao beans. A true chocolate lover wouldn't believe that, and a reasonable consumer wouldn't either….

Jared Reed Kessler and Ronald Y. Rothstein (Winston and Strawn LLP) represent Nestle.

The post Claim That "100% Real Chocolate" Can't Include "Soy Lecithin and Natural Flavors" "Is Half-Baked, and Is 100% Dismissed" appeared first on Reason.com.

Plaintiff Aneesa Johnson, an African American and Muslim woman of Palestinian origin, alleges that Georgetown discriminated against her when it fired her [from her position as Assistant Director of Academic and Faculty Affairs at Georgetown's Walsh School of Foreign Service] after discovering eight-year-old social media posts that described her "hat[red]" for Zionists.

{Three of Johnson's posts are relevant here. The first read, "Ever since going to [Northwestern] I have a deep seeded [sic] hate for Zio bitches. They bring out the worst in me." The second elaborated, "You know why I call them Zio bitches, because they're dogs." And the third post was a repost of another user's Tweet, which included a photograph of a scowling Orthodox Jewish man with the caption, "When the whole world hates you bc you a thief and grow up looking like a shaytan #GrowingUpIsraeli." ("Shaytan" means devil or demon in Arabic.)}

She also brings a bevy of related hostile work environment, retaliation, and tort claims against Georgetown and a constellation of other defendants, including Rachel Jessica Wolff and Ilya Shapiro, individuals who publicized Johnson's old posts on Twitter; Canary Mission, a controversial organization that creates online profiles of students and professors on college campuses who have been critical of Israel; and a handful of Canary Mission's donors….

Upon consideration of the voluminous set of briefs in this case, the Court concludes that Ms. Johnson's claims against the movants must be dismissed with prejudice. Among myriad grounds for dismissal, the complaint does not make out any claim that Johnson was discriminated against based on her race, religion, or national origin, nor can she proceed in tort against Georgetown or other defendants due to procedural and substantive defects in her claims….

The opinion is over 20K words long, and I can't do it justice here. But I thought I'd pass along this passage, which is relevant to some of the First Amendment / tort law discussions we've had on this blog in past years:

After Johnson was introduced to the SFS community by email, Rachel Wolff—a Jewish dual degree student at SFS and Georgetown's law school—looked Johnson up online. The top search result was a profile of Johnson on the website of Canary Mission, which the complaint characterizes as an "anonymous cyberstalking and blacklisting" operation that "targets" individuals who advocate for Palestinian rights. [The profile contained Johnson's three Twitter posts. -EV] …

Alarmed at what her Google search turned up, Wolff took to Twitter herself. Late in the evening on November 1, she posted screenshots of Johnson's college-era Tweets, retrieved from Canary Mission, with some added commentary: "Not to be outdone by Harvard, Georgetown @georgetownsfs just hired this antisemite to be the 'primary point of contact for all MSFS Students on everything academic.' As an SFS student, I'd rather fail my master's program than speak to someone who says this about my people."

Wolff's Tweet went viral, garnering over a million views. She followed up with additional posts, calling SFS and Georgetown "shameful" for their hiring decision. According to the complaint, Wolff's Tweets were amplified by Canary Mission, the Israeli government, and other users. One of those users was Ilya Shapiro, a former Georgetown law school lecturer and administrator, who reposted Wolff's initial Tweet, adding "Her name is Aneesa Johnson, @Georgetown School of Foreign Service's new assistant director of academic affairs." …

Johnson alleges that Wolff tortiously interfered with her contract with Georgetown by targeting her online, accusing her of being antisemitic, and thereby pressuring the university to terminate her…. "[U]nder D.C. law, a prima facie case of tortious interference with a contract or business relationship requires (1) existence of a valid contractual or other business relationship; (2) the defendant's knowledge of the relationship; (3) intentional interference with that relationship by the defendant; and (4) resulting damages." … The D.C. Court of Appeals has clarified that "D.C. law permits claims for tortious interference with an at-will employment relationship[,]" at least against "third parties." … [T]he D.C. Circuit has suggested that a plaintiff need not allege interference "through egregious means"—for example, through libel, slander, coercion, fraud, misrepresentation, or disparagement—to survive a motion to dismiss….

[But e]ven if Wolff's conduct qualifies as intentional interference with Johnson's contract and proximately caused her termination, it was not improper or wrongful… [and was thus] "legally justified or privileged," which renders [it] inactionable [citing D.C. precedents]…. {The propriety of a defendant's interference is an affirmative defense, rather than a prima facie element of tortious interference…. [But] it is clear from the face of Johnson's complaint that Wolff's Tweets do not constitute improper interference in her contract with Georgetown and thus cannot sustain her tortious interference claim.}

D.C. law follows the Restatement (Second) of Torts in "determining whether interference with a contract is 'improper[.]'" Courts must consider several factors, including "(a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference, and (g) the relations between the parties." The list is not exhaustive, and courts are to evaluate impropriety based on a "judgment and choice of values in each situation."

Considering the facts in the light most favorable to Johnson—without crediting her legal conclusions and speculative or threadbare assertions—Wolff's behavior is a far cry from wrongful or improper. The nature of her conduct was not unusual: She complained to other social media users about an issue that upset her, though her posts did go viral along the way. Wolff's motive was clear from the face of the complaint: She perceived Johnson's online activity as an affront to her Jewish identity, especially in the immediate aftermath of the October 7 attack, and publicly vented her objection to Georgetown placing Johnson in a position of responsibility vis-à-vis Jewish (and other) students. Though there may have been less provocative means of voicing her opinion, she was entitled to do so the way she did.

Relatedly, Wolff's individual interest in speaking out had a constitutional valence, which dovetails with the societal interest in protecting her freedom of speech, especially on a matter of public concern like an elite university's hiring decisions. After all, "in public debate [we] must tolerate insulting … speech in order to provide adequate 'breathing space' to the freedoms protected by the First Amendment.'" These factors strongly outweigh Johnson's interest in bringing an affirmative tortious interference claim against Wolff, who, at best, played only an indirect role in her firing. {The Court will not fulsomely address Wolff's First Amendment defense, other than to note that it packs a strong punch.}

Imagine the road we would travel if any exasperated social media complaint about a university personnel controversy could give rise to a tortious interference claim. The risk of such suits would undoubtedly chill campus speech, contravening the well-established principle that the "college classroom," along with "its surrounding environs," is "peculiarly the 'marketplace of ideas[.]' " To put an even finer point on it, imagine if student activists for the Palestinian cause could be sued in tort if they condemned their university's decision to hire a vocal supporter of Israel.

This cannot be the result Johnson truly seeks, especially given her own history of campus organizing. Indeed, her opposition stresses that she "does not challenge Defendants' right to speak" and acknowledges that defendants "may express their views about Palestinian advocacy, about [ ] Johnson's political positions, about Israel-Palestine dynamics." If Johnson instead aims to curb the "use" of "employment authority to retaliate against protected-class membership[,]"an iffy tortious interference claim against Wolff—who Johnson concedes had no employment authority whatsoever—widely misses the mark.

And from the Conclusion to the opinion:

The Court [earlier noted] Shakespeare's admonition in Henry VIII to refrain from letting the heat of passion cloud the pursuit of our adversaries, lest we go too far and bring harm upon ourselves. That advice rings true no matter how righteous we believe our cause to be. Litigation can right many wrongs. But not every wrong can be righted by a lawsuit….

There are still other lessons to be drawn from this case.

We should all cherish free speech yet recognize that speech is not free. It has consequences. It reflects who we are. And especially if conveyed over the Internet, it can follow us forever. If our words are caustic and hurtful, they may not only injure others, but also sully our own reputations and cost us valuable opportunities and benefits, including in employment. As elementary as it may seem, we should think twice about what we say and how we say it.

Choosing words wisely is especially important for those entrusted with the education of our students and future leaders. Members of the academy—and, yes, judges and other public figures whose words reach impressionable ears—should model respectful discourse for those next up the rungs. But that is sometimes lacking in this age when hot takes on social media pass for analysis of fraught and complex issues. While most of us appreciate a turn of phrase and even a zinger or two, pith alone is usually a poor substitute for reasoned commentary.

We might remember as well that free speech is for me and for thee. There is a tendency for those whose words are censured to seek refuge in the First Amendment. Yet some seem unwilling to extend like protections to those whose speech they find objectionable. The "cancelled" become the censors. That double standard pops up on both sides of this suit.

This case also illuminates the plight of university administrators these days, who must navigate fractured student bodies and faculties, demanding donors, ever-increasing intrusions by the federal government, and more. They deserve a measure of grace. They will occasionally falter, of course, and when they do in ways that violate the law, they should appropriately be held to account. But hasty social media posts and grasping lawsuits are perhaps not the best ways of confronting their missteps.

As the Court presaged at the outset, this case has become a proxy war of sorts for the conflict that continues to play out on college campuses over events in Israel and Gaza. That conflict has embroiled students, faculty, and staff with deeply held but diametrically opposed views on a seemingly intractable dispute halfway around the globe.

The nation's great colleges and universities are uniquely situated to offer the competing constituencies a shared environment to learn about and debate the underlying struggle and its historical origins, which of course long predate October 7, 2023. They can also provide space for time-honored expressions of protest within bounds of reason and respect.

Fashioning such an environment has proven difficult on some (though not all) campuses. But where school and student leaders can together strive to create conducive settings to achieve these goals, there may be no better place than the university to temper the "fire of passion" with the "sap of reason," in the words of the Bard. At the very least, a college campus is almost always a more appropriate venue for venting ardent political opinions than a court of law.

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