And check out our past episodes:

• Speech, Not "Conduct": Supreme Court Rules on Conversion Talk Therapy
• 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: "Defamacast" and More: How American Defamation Law Works appeared first on Reason.com.

In recent years, a lively scholarly discourse has emerged about whether and how the U.S. First Amendment protects generative AI outputs. Some have argued that such outputs are protected at the very least by the rights of AI users to receive information and to create their own speech. Others would not recognize gen AI outputs as receiving such First Amendment protections. The issue of whether gen AI program creators are entitled to free speech protections for such outputs has also spurred a variety of reactions.

As this discourse on the First Amendment and gen AI unfolds, it is also important to reflect on what the global freedom of expression standard has to say on the matter. This standard will affect discussions about national and regional regulatory approaches to gen AI throughout the world. In addition, global corporate responsibility standards call on companies to respect international human rights norms in their operations, which may also impact how businesses that provide gen AI services approach their activities.

Part I of this Article explores the scope of the existing global free expression standard. Part II considers the standard's application to gen AI outputs, including in various governmental and corporate contexts. Ultimately, this Article maintains that the global free expression standard protects the rights of individuals to seek and receive information of any kind, including gen AI outputs.

In addition, if human speakers share gen AI outputs as part of their own speech, this global standard also protects those speakers' right to impart information. Governmental attempts to restrict gen AI outputs are therefore subject to the standard's safeguards on how this human right can be limited. And companies providing general-purpose gen AI services should also respect human rights, including freedom of expression, in their operations.

The post Journal of Free Speech Law: "A New Frontier for an International Right with No Frontiers: Freedom of Expression & Generative AI Outputs," by Evelyn Mary Aswad appeared first on Reason.com.

Last November, a divided panel of the U.S. Court of Appeals for the D.C. Circuit upheld a Department of Energy energy efficiency standard for natural gas-powered consumer furnaces and commercial water heaters that effectively banned non-condensing units from the market. The panel decision might have been defensible (and understandable) in a Chevron world, but it (as Judge Rao's dissent demonstrated) it was hard to reconcile with the approach to statutory interpretation dictated by Loper Bright Enterprises. 

At the time, I wondered why the Trump Administration had allowed this case to go to judgment. It could have asked the D.C. Circuit to put any decision on hold while DOE reconsidered the rule, but it didn't.

In January, a coalition of industry groups petitioned for certiorari in American Gas Association v. Department of Energy. Yesterday, the Solicitor General filed his response, asking the Court to GVR the case due to the D.C. Circuit's error.

From the SG's brief:

Petitioners contend (Pet. 25-30) that the Department's December 2021 interpretive rule and resulting energy-conservation standards reflect an unduly narrow understanding of what constitutes a "performance characteristic[]" under EPCA. Following the change in Administration, the government agrees with that contention. The Court should accordingly grant the petition for a writ of certiorari, vacate the judgment below, and remand for further proceedings (GVR) in light of the government's position in this brieft.

Granting the government's request would send a message to the D.C. Circuit to take statutory interpretation more seriously and vindicate a powerful (and persuasive) Rao dissent. It would also save the Administration the time and trouble of trying to undo the rule in the shadow of the D.C. Circuit's decision. As I noted last fall, the panel opinion could make it difficult for the Trump Administration to rescind or modify the rule on the grounds that the best interpretation of the statute does not allow it. A GVR from the Court would solve this problem.

The post Solicitor General Asks Supreme Court to Eighty-Six Energy Conservation Rule appeared first on Reason.com.

The Supreme Court headline for today is the Court's 6-3 decision narrowing the application of Section 2 of the Voting Rights Act in Louisiana v. Callais. Before deciding Callais, however, the Court also decided First Choice Women's Resource Centers v. New Jersey.

In First Choice, a unanimous Court concluded that a pro-life religious organization had Article III standing to challenge the constitutionality of a subpoena from the New Jersey Attorney General demanding information about the nonprofit's financial supporters. As occurred with the mifepristone litigation, the fact that this case touches on abortion did not prevent consensus among the justices.

Justice Gorsuch wrote for the Court, making quick work of the arguments accepted by the lower courts and advanced by New Jersey. As Justice Gorsuch notes, "the question before us all but answers itself." Nonetheless, three of the four lower court judges to consider the case reached the opposite conclusion.

From Justice Gorsuch's opinion:

This case presents a narrow question. We are not asked to decide the merits of First Choice's federal lawsuit, only whether it may proceed. Article III of the Constitution vests federal courts with the "judicial Power" to decide "Cases" and "Controversies." §2, cl. 1. Inherent in that assignment is a "standing" requirement consisting of three elements: "injury in fact, causation, and redressability." Diamond Alternative Energy, LLC v. EPA, 606 U. S. 100, 110– 111 (2025). Together, these elements help us distinguish cases and controversies fit for judicial resolution from questions of public policy reserved to the elected branches or abstract disputes better left to the debating hall. See ibid.

As this case comes to us, it centers on the injury-in-fact element. To satisfy that element, a case must involve "an injury that is concrete, particularized, and actual or imminent." Id., at 111 (internal quotation marks omitted). Because this standard tolerates suits involving "actual or imminent" injuries, a party need not always wait for the government to take coercive action against it before filing suit to challenge the government's conduct. Instead, a litigant may bring a pre-enforcement suit seeking prospective relief against government officials so long as it faces "a credible threat of enforcement." See Susan B. Anthony List v. Driehaus, 573 U. S. 149, 161, 164–167 (2014).

Before us, First Choice advances two arguments for why it can satisfy the injury-in-fact requirement. First, the group submits that the Attorney General's subpoena itself—and specifically its demand for donor information— has caused it to suffer an actual and ongoing injury to its First Amendment rights by deterring donors from associating with it. Second, First Choice contends that it faces an imminent future injury because with the subpoena came a credible threat that the Attorney General would seek to enforce it in state court if the group failed to comply. For our purposes, it suffices to address only the first theory as it is enough to carry the day.

And the opinion concludes:

Since the 1950s, this Court has confronted one official demand after another like the Attorney General's. Over and again, we have held those demands burden the exercise of First Amendment rights. Disputing none of these precedents but seeking ways around them, the Attorney General has offered a variety of arguments. Some are old, some are new, but none succeeds. Accordingly, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

The post Unanimous Supreme Court Affirms Standing to Challenge Subpoena for Info on Financial Supporters appeared first on Reason.com.

Arizona criminal harassment law provides, in relevant part:

A person commits harassment [a class 1 misdemeanor] if the person knowingly and repeatedly commits an act or acts that harass another person or the person knowingly … [c]ontacts or causes a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means….

"[H]arass" means conduct [excluding] a {lawful demonstration, assembly or picketing} [1] that is directed at a specific person and [2] that would cause a reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed and [3] the conduct in fact seriously alarms, annoys, humiliates or mentally distresses the person.

This pretty clearly covers certain kinds of unwanted communications to a person (e.g., repeated unwanted seriously annoying phone calls). But does it also cover communications about a person? The statute does specifically cover one such communication: making "a false report to a law enforcement, credit or social service agency against another person." But what about true statements, or expressions of opinion, about someone that are reasonably seriously upsetting—e.g., complaints to employers, which might put the target's job in jeopardy (surely something that would seriously alarm, annoy, humiliate, or mentally distress people)?

Monday's unanimous Arizona Supreme Court decision by Chief Justice Timmer in Hernandez v. Loarca says the law does cover such speech about people:

Briana Hernandez and Luis Loarca had a past romantic relationship that resulted in the birth of their daughter …, who was ten years old at the time of the events at issue…. Hernandez obtained an order of protection against Loarca based on allegations that he engaged in domestic violence by harassing her at Daughter's school, where Hernandez was also employed. See A.R.S. § 13-3601(A)(2) (including harassment by one parent against the other as an act of domestic violence). Specifically, she alleged that Loarca harassed her by making negative statements concerning her to Daughter's teacher and the school principal….

We conclude that communications may be "directed at" a victim even when conveyed to a third party when they are designed to provoke an adverse consequence against the victim…. If such communications are designed to provoke an adverse consequence for the victim that would seriously alarm, annoy, humiliate, or mentally distress a reasonable person in the victim's position, and in fact do so, they constitute harassment. In short, § 13-2921(E) regulates conduct based on its target, not its transmission path.

Our interpretation is reinforced by subsection (A)(1), which provides that a person can "harass" by "caus[ing] a communication with another person," not only with the victim. By not limiting the communication's recipient to the victim, subsection (A)(1) illustrates that communications may be directed at a victim through intermediaries….

The court also refused to limit the statute "to cases involving express solicitations" of "adverse consequences," and in the process suggested that it could be a crime to accuse someone of having an affair—and though the court mentions false accusations, the statute would cover true accusations as much as false ones:

We see no principled basis for concluding, for example, that a person's false statement to a wife that her husband is having an affair is not "directed at" the husband, but becomes so only if the speaker adds that the wife should act against him. In both instances, the communication is designed to provoke an adverse consequence against the husband.

The court concluded that not all criticisms would count:

Importantly, not all communications to third parties that reveal unflattering information about another person are "directed at" that person. In LaFaro v. Cahill (Ariz. App. 2002), for example, the court of appeals considered whether a defendant's statements describing the plaintiff as a "bigot," "fascist," and "homophobe," made to a third party but within the plaintiff's earshot, were "directed at" the plaintiff for purposes of Arizona's civil harassment statute, A.R.S. § 12-1809(T)(1)(a), which closely parallels § 13-2921(E)…. [T]he defendant's comments in LaFaro were not intended to provoke adverse consequences for the plaintiff, even if they may have diminished the third party's opinion of the plaintiff.

But of course a great deal of criticism (including calling people bigots, fascists, and homophobes) may indeed be "intended to provoke adverse consequences."

The court acknowledged that this makes the harassment statute quite broad, and might raise First Amendment problems:

[Section] 13-2921(E) is broadly written, and courts may struggle with applying it in some situations. Unlike its civil counterpart, § 13-2921(E) does not exclude from the definition of harassing behavior conduct or communications made for legitimate purposes…. The Legislature … may wish to consider whether complaints made for legitimate purposes, even though designed to provoke an adverse consequence against another person, should nevertheless fall within the statute's reach. A broad application of this statute may also implicate the free-speech protections of our state and federal Constitutions, but that issue is not currently before us….

For more on this general question, see my One-to-One Speech vs. One-to-Many Speech (2013) and my Overbroad Injunctions Against Speech (2022). Here are more factual details from the case:

In the fall of 2023, Hernandez was employed as a paraprofessional by Phoenix Legacy Traditional School, which Daughter also attended. Daughter's teacher told Hernandez that Daughter was struggling with reading and needed to improve her grades. According to Hernandez, she later mentioned this conversation to Loarca and commented that perhaps Daughter needed a more experienced teacher.

Thereafter, Loarca met with Daughter's teacher at a parent-teacher conference. Hernandez alleges that during that discussion, Loarca misrepresented what she had told him, instead telling the teacher that Hernandez "despises" her and "did not think she was a good teacher." Hernandez learned of this encounter in a later meeting with the teacher, which the principal arranged so the two could smooth things over. The teacher was "extremely unhappy" and "quite uncomfortable" during the meeting. Hernandez explained to the teacher and the principal that Loarca had miscommunicated her comments, and that ended the matter.

In March 2024, Daughter transferred to Goodyear Legacy Traditional School, and Hernandez started working there as a paraprofessional. Soon after, Daughter came to Hernandez during school hours concerning a book report Daughter was working on. According to Hernandez, Loarca had switched the book at the last minute, leaving Daughter stressed about her ability to complete the assignment on time. Consequently, Hernandez helped Daughter by giving her notes on the book and "otherwise helping her finish the report."

Loarca found out. Rather than discussing the matter with Hernandez, he took Hernandez's notes and other information she had given to Daughter and sent it to the school principal, who supervised Hernandez. As a consequence, the principal provided Hernandez with a written warning for plagiarism, admonished Hernandez that she could not use "company time" to help Daughter, and told her that she should not visit Daughter during school hours….

[T]he [trial] court found that Loarca's handling of the matters did not reflect concern for Daughter or protection of his role as final decision maker in educational matters but were instead calculated to inflict harm on Hernandez by causing trouble for her at work…. [The Arizona Supreme Court agreed:] Loarca's statement to the teacher that Hernandez despised her and considered her incompetent supports the conclusion that he targeted Hernandez to provoke an adverse consequence in her workplace. Nothing about those comments furthered Daughter's educational interests and thus appeared intended to undermine the parties' professional relationship. Indeed, the principal convened a meeting to address the resulting conflict….

Loarca's report to the principal that Hernandez improperly assisted Daughter with the book report likewise supports the inference that he sought to create problems for Hernandez with her supervisor. He made no effort to resolve the issue with Hernandez or Daughter's teacher before going directly to the principal. As the trial court found, Loarca effectively accused a staff member of dishonesty and plagiarism, making it likely that the principal would take adverse action against Hernandez….

Emily S. Morgan, William H. Doyle, Brandon D. Millam, and Doyle Hernandez Millam represent Hernandez.

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As a recent Boston Globe article explains, the Trump Administration is trying to deport Russian dissenters against Vladimir Putin's war of aggression:

Russian asylum seekers are being rejected despite the likelihood they will be arrested back in Russia. It started during the Biden administration but has accelerated in President Trump's second term. Since Trump returned to office last year, US immigration authorities have deported possibly hundreds of Russian asylum seekers. This is according to estimates by Russian America for Democracy in Russia (RADR), an organization that assists antiwar Russians with finding legal aid and that has analyzed ICE data.

Russian refugee seekers deported by the administration include a 25-year-old man who defected from the army, was arrested upon his return to Moscow, and was charged with desertion. An opposition activist named Leonid Melekhin was sent to prison straight from the airport after his deportation flight from the United States in 2025, and he now faces a lengthy prison sentence. RADR estimates that another 1,000 Russians who have requested asylum are being held in US detention facilities.

Krasnov applied for asylum at the US-Mexican border back in 2023. He spent more than 14 months in detention until he was released in October 2024 after he joined a class-action lawsuit challenging unlawful detentions. Then he was detained once again during a check-in with ICE in February 2025.

Now he is certain that he will be sent to prison the moment he lands in Russia. One common fate for Russian prisoners is to be sent off to the Ukraine war. At one point, Russian prisoners accounted for 18 percent of all Russian casualties in the war. It baffles Krasnov that the Trump administration is providing more foot soldiers to fight against Ukraine, a US ally. "In Russia, every man is a potential cog in Putin's war machine. Why give him more cogs?''….

The Russians who have been detained by ICE include many immigrants who drive trucks for a living. It is a profession that has made them easy targets for immigration officials, who prowl the roads looking for suspicious-looking drivers or are able to look at their documents at checkpoints. "ICE officers are simply rounding up those who go right into their hands. Don't even have to make an effort to hunt anyone down,'' says Anastasia Topilina, whose husband, Alexander, was detained at a checkpoint in Laredo, Texas.

Alexander Topilin was being held in that detention center alongside about 20 other Russian-speaking truck drivers. His family had been forced to flee Russia because of threats from the police, who had singled Topilin out for his years-long participation in anti-Putin protests. After being detained at one of the rallies, he says that he was strangled with a "terry cloth towel'' to force him to confess to trying to "overthrow the current president.''

I previously wrote about this issue back in September of last year, and the points I made still apply:

[A]busive treatment of Russian dissenters fleeing Putin occurred under Biden, as well. And I condemned it at the time. But Trump's expansion of the deportations and collaboration with the Russian government is worse.

Beginning soon after Russia's full-scale invasion of Ukraine, I have argued the US and other Western nations should open their doors to Russians fleeing Putin's increasingly repressive regime. It's the right thing to do for both moral and strategic reasons. Morally, it's wrong to bar people fleeing brutal repression and, in some cases, seeking to avoid being drafted into an unjust war of aggression. Strategically, we benefit from depriving Putin of valuable manpower and from enabling the Russian refugees to contribute to our economy and scientific innovation (Russian immigrants and refugees are disproportionate contributors to the latter).  I have also advocated for Ukrainian refugees, whose interest I cannot easily be accused of neglecting.

I would add that the 1980 Refugee Act gives anyone crossing a US border the right to apply for asylum, and Russians fleeing persecution for opposing Putin's war have an obviously strong case for getting it. US law grants asylum to people who enter the United States and meet the legal definition of "refugee," defined as "any person who is outside any country of such person's nationality…. and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Russians threatened with imprisonment and other repression because they oppose Putin's war undeniably qualify as victims of persecution based on "political opinion." In today's Russia, you can get a prison sentence for spreading what the Kremlin calls "false information" about the war, which includes such things as referring to Putin's "special military operation" as a "war."

Elsewhere, I have made the case for expanding the legal definition of "refugee," which excludes many people fleeing various types of horrific violence and oppression. But Russian war dissenters clearly qualify under the current narrow definition.

In sum, Trump's effort to deport Russian anti-Ukraine War dissenters is simultaneously unjust, illegal, and harmful to US foreign policy interests.  But at least you can say Trump is consistent. His abusive treatment of Russian dissenters is of a piece with his efforts to deport people seeking to escape other oppressive anti-American regimes, such as those who fled Cuba and Venezuela, Iranian Christians, and Afghans who escaped the Taliban (including many who aided the US during the war).

Conservative Boston Globe columnist Jeff Jacoby makes some additional related points in this article.

The post Trump's Shameful Effort to Deport Russian Dissenters Fleeing Putin appeared first on Reason.com.

From today's indictment:

On or about May 15, 2025, in the Eastern District of North Carolina, the defendant, JAMES BRIEN COMEY JR, did knowingly and willfully make a threat to take the life of, and to inflict bodily harm upon, the President of the United States, in that he publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out "86 47", which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.

In violation of Title 18, United States Code, Section 871(a).

A second count also alleges this violated the federal interstate threats statute, 18 U.S.C. § 875(c).

I think this prosecution is unjustified, and will get thrown out. Let me quickly analyze why.

Threats: To "eighty-six" someone is, to quote the Oxford English Dictionary, "to eject or debar (a person) from premises; to reject or abandon; (in earliest use) to refuse to serve (a customer)." (In context, "47" means Trump, who is now the 47th president.) Here are the examples the OED gives:

1942 'Eighty-six' is the trade term for refusing to serve a patron any more liquor… If the patron begins trying out airplane spins on innocent neighbors, for example, he is through. He is 'eighty-sixed'. Times Herald (Washington, D.C.) …

1959 'Eighty-sixed some square bankers from the temple'..eighty-sixed means evicted. Observer …

1963 I'll have you eighty-sixed out of this bar. J. Rechy, City of Night.

1968 On the evening of July 22, Mr. Mailer was filming a dream sequence at the house of Alfonso Ossorio in East Hampton, when Mr. Smith came into the house. 'He told me, "You're 86'd",' Mr. Smith recalled yesterday. This is a barroom phrase that means 'you're banned in here'. New York Times.

1980 Most of the program was devoted to the lessons in campaign management that could be learned from Presidential races, real and fictional (A scene was shown from the movie 'The Candidate', in which the media adviser said to Robert Redford, 'O.K., now, for starters, we got to cut your hair and eighty-six the sideburns'). New Yorker

Absent further context, the term can't be reasonably seen as a threat of violence. Of course, with the right context, very many things could be seen as threats of violence. If someone comes to my house waving a gun, saying "I'm going to 86 you" (or a lot of other things), that might well be seen as a threat of violence; but I know of no such context that would lead Comey's tweet to be reasonably interpreted that way.

And First Amendment law recognizes that the First Amendment exception for "true threats" only extends to statements that really would be reasonably understood as threats. To quote Counterman v. Colorado (2023),

The "true" in that term ["true threats"] distinguishes what is at issue from jests, "hyperbole," or other statements that when taken in context do not convey a real possibility that violence will follow (say, "I am going to kill you for showing up late"). True threats are "serious expression[s]" conveying that a speaker means to "commit an act of unlawful violence."

And to punish a statement as a threat, the government "must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence."

Nothing in Comey's statement can be reasonably understood as conveying that he means to kill Trump. Rather, its reasonably understood meaning is that Comey wants Trump removed, for instance through impeachment or (as with President Nixon) resignation under threat of impeachment.

Indeed, even some facially threatening statements (and, again, "86 47" isn't facially threatening) have been found not to be true threats when the context shows that they shouldn't be reasonably understood as genuinely threatening. The classic example is Watts v. U.S. (1969) (emphasis added):

The incident which led to petitioner's arrest occurred on August 27, 1966, during a public rally on the Washington Monument grounds. The crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views.

According to an investigator for the Army Counter Intelligence Corps who was present, petitioner responded: "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." "They are not going to make me kill my black brothers." …

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term ["threat"]. For we must interpret the language Congress chose "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was "a kind of very crude offensive method of stating a political opposition to the President." Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

The Court therefore overturned a jury verdict convicting Watts. As the Court has held in cases such as Bose Corp. v. Consumers Union (1983), courts reviewing judgments based on speech need to review them independently, rather than by deferring to the factfinder's interpretation of ambiguous language. In particular, such independent judicial review is required in threats cases (see, e.g., In re George T. (2004)).

Likewise, a court considering a motion to dismiss an indictment (which I expect Comey will file) should conclude that, as a matter of law, Comey's statements weren't a punishable threat, either. (See, e.g., State v. Metzinger (Mo. Ct. App. 2015) for an example of a court dismissing a threat indictment on such grounds.)

Solicitation: Now perhaps some might agree that Comey didn't mean to say that he would kill Trump, but that he was urging others to kill Trump. But that too strikes me as wrong: He likely was urging something, but that something appears in context to be political opposition to Trump that would lead to his removal.

In U.S. v. Hansen (2023), the Court recognized that the First Amendment doesn't protect solicitation of crime, but explained that "Criminal solicitation is the intentional encouragement of an unlawful act," citing the Model Penal Code, which defines solicitation as:

• "A person is guilty of solicitation to commit a crime if"
• "with the purpose of promoting or facilitating its commission"
• "he commands, encourages or requests another person"
• "to engage in specific conduct that would constitute such crime."

If a mob boss tells a subordinate to "86" someone, and it's clear that this means to shoot rather than to throw out of a bar, that might well be solicitation. But I'm pretty sure that there's no proof beyond a reasonable doubt that Comey posted to the world a photo of seashells arranged in "86 47" with the purpose of promoting an assassination of the President.

And of course, perhaps for this very reason, the indictment doesn't even allege solicitation. It alleges a threat—and, again, it is not reasonable to interpret Comey's post as a true threat.

The post Analyzing Indictment of James Comey for "86 47" Post appeared first on Reason.com.

In a recent Atlantic article, prominent conservative legal commentator Gregg Nunziata argues that conservatives should rethink their advocacy of sweeping executive power, and support tighter limits on presidential power:

The second Trump administration has revealed American Caesarism in nearly full bloom. Despite ambitions to fundamentally change the course of the country, this administration has no real legislative agenda. Instead, the president governs by executive orders, emergency decrees, and extortionate transactions, using his power to reward his friends and punish his enemies. He's launched foreign military adventures and full-blown wars seemingly based on personal whim, and has made the military a political prop and a tool for domestic law enforcement. With Congress sidelined and the courts reluctant to check Donald Trump's excesses, America has been left with what some legal scholars have described as an "executive unbound"—and with a president who threatens to supplant the republic in all but name….

The central premise of the Constitution is that liberty requires divided authority. The accumulation of power in one branch of government is, as James Madison warned, "the very definition of tyranny." Americans are already feeling the consequences of this imbalance: Because executive orders, emergency declarations, and unilateral action lack the durability of legislation passed by Congress, policies swing wildly from one administration to the next. Families and businesses cannot plan ahead, which undermines investment, growth, and prosperity.

American Caesarism did not emerge overnight with the election of Trump, but over the course of decades. And though conservatives alone did not create this state of affairs, many were key proponents of a vision of politics centered on one commanding figure—a vision that is now destabilizing our country. I have spent my career in the conservative legal movement, which has included advising Senate Republicans on judicial nominations. I have become convinced that if the Madisonian republic is to endure, conservatives must reckon with our role in bringing the nation to its current breaking point, and work to reestablish the checks and balances that we helped erode.

I agree with most of Nunziata's points, and certainly with his bottom-line conclusion that the conservative legal movement, the judiciary, and especially Congress should all do much more to constrain executive power.

I would extend Nunziata's logic in several ways. First, as I have argued at length in various previous writings, the nondelegation and major questions doctrines pioneered by conservative judges and legal scholars can be valuable tools for constraining executive power, and they should be used more. We've already seen some beneficial effects of them in the tariff case recently decided by the Supreme Court. And there is much more potential there, for example when it comes to constraining dangerous presidential efforts to "nationalize" control over elections.

Second, I would amplify Nunziata's calls for stronger judicial review of and congressional control over invocations of executive emergency powers. I previously wrote about that here and here. Courts should not defer to presidential assertions that an "invasion," "unusual and extraordinary threat," or other emergency justifying use of sweeping powers exists. They should demand proof. And Congress should impose time limits on emergency powers, and make clear that legal limitations on emergency powers are subject to nondeferential judicial review.

Third, even if "unitary executive" theory is otherwise sound, it should not be applied to the exercise of authority over issues that were not themselves within the original scope of federal authority. If we are not going to eliminate such unoriginalist expansions of federal power entirely, we should at least not allow concentration of that vast authority in the hands of one person.

I do have a few reservations about Nunziata's analysis. I think he underrates the potential impact of the Supreme Court's ruling in the tariff case (which I helped litigate). Nunziata is right that the Court based its decision primarily (thought not "solely," as he put it) "on the determination that the emergency authority at issue does not authorize tariffs" and that the Court did not address Trump's bogus invocation of a national emergency. But, as recounted in my Atlantic article about the case, all six justices in the majority emphasized that the president could not claim unlimited power to impose tariffs for any reason, and the three conservatives also ruled against Trump based on the major questions doctrine, thereby signaling their willingness to utilize against future power grabs on "foreign affairs" powers, including those by Republican presidents. Justice Gorsuch also emphasized nondelegation considerations.

I think Nunziata may also underrate the extent to which the Supreme Court's rulings limiting judicial deference to executive agencies can be utilized to constrain the presidency. He notes that "the judiciary remains less willing to confront executive overreach outside of the regulatory context, especially in matters of purported national security." This is true to an extent. But the logic of these decisions applies broadly to all assertions of executive power, and multiple federal judges - including conservative ones - have applied them in a nondeferential way in the tariff case, and in litigation over the president's claims that illegal migration and drug smuggling qualify as "invasion." On the other hand, it is also true that a few conservative judges have claimed the president deserves virtually absolute deference on the latter issue. I go over the relevant precedents and critique the case for deference in this article.

For me as a libertarian, it's generally easy to oppose executive power grabs because - in addition to constitutional considerations  - I also oppose the vast bulk of them on moral and policy grounds. That's true of Biden's student loan forgiveness plan, Trump's actions on immigration and tariffs, and more.

By contrast, executive power poses some difficult dilemmas for both left-liberals and conservatives. They may often welcome sweeping executive power when "their" guy is in the White House, hoping that he will use it for beneficial purposes, even as they fear its exercise when the shoe is on the other foot. To them I can only say that a massive concentration of power in the hands of one person is inherently dangerous, at odds with the constitutional design, and - as Gregg Nunziata explains - a serious potential menace to the republic. At the very least, these concerns should lead you to support tighter constraints on executive power than you might otherwise advocate.

NOTE: Gregg Nunziata is Executive Director of the Society for the Rule of Law. I am a member of SRL's Advisory Council (an unpaid position).

The post Rethinking Conservative Approaches to Executive Power appeared first on Reason.com.

A new study just published by the prestigious American Economic Review may be the most important recent social science article most nonexperts have never heard of. It's entitled "Zero-Sum Thinking and the Roots of US Political Differences" and the authors are Sahil Chinoy, Nathan Nunn, Sandra Sequeira, and Stefanie Stantcheva. Here is the abstract:

We investigate the origins and implications of zero-sum thinking: the belief that gains for one individual or group tend to come at the cost of others. Using a new survey of 20,400 US residents, we measure zero-sum thinking, political preferences, policy views, and a rich array of ancestral information spanning four generations. We find that a more zero-sum mindset is strongly associated with more support for government redistribution, race- and gender-based affirmative action, and more restrictive immigration policies. Zero-sum thinking can be traced back to the experiences of both the individual and their ancestors, encompassing factors such as the degree of intergenerational upward mobility they experienced, whether they immigrated to the United States or lived in a location with more immigrants, and whether they were enslaved or lived in a location with more enslavement.

I have long argued that zero-sum assumptions are central to the dangerous world views of both right-wing nationalists and many left-wing socialists and "wokists." I have also long warned against the dangers of widespread political ignorance, which has been a central theme of my work for many years. This study provides extensive evidence that zero-sum thinking is widespread, and that it is at the root of many crucial political attitudes.

As the authors show, zero-sum worldviews cut across party and ideological lines (though slightly more prevalent among Republicans than Democrats), and are strong predictors of political views on issues like redistribution, the use of racial preferences for affirmative actions, and immigration restrictions.

The authors' analysis of the determinants and correlates of zero-sum worldviews is also groundbreaking. Most notably, they find that experiences of upward mobility and immigration (including having immigrant parents or grandparents) are strongly negatively correlated with zero-sum thinking. On the other hand, zero-sum thinking has a strong positive correlation with having ancestors who experienced slavery and others forms of forced labor or even just living in an area where slavery was historically prevalent.

Among American Blacks, this latter effect is, as the authors recognize, partly caused by a history of segregation and discrimination that persisted after slavery was abolished. The same can be said of the impact of living in an area where slavery was prevalent (which also are almost always areas where there was a high degree of later segregation and other discrimination). But it is notable that the impact of past enslavement is also significant among other groups, such as Jews whose parents or grandparents were forced laborers during the Holocaust.

The impact of immigration is particularly noteworthy in light of current debates over immigration restrictions. Libertarians and free-market conservatives sympathetic to restrictionism often argue that immigration should be curtailed because it might lead to increased welfare state spending. But the Chinoy, et al. study shows that zero-sum thinking is a major determinant of support for redistributive policies, and immigrants and children of immigrants are much less prone to it than other voters, even after controlling for a variety of other variables. This is actually an additional important pathway by which immigration is likely to reduce the burden of the welfare state, rather than increase it. I went over some additional flaws in the welfare state rationale for immigration restrictions in this post, and in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

The same goes for concerns that immigration might increase "woke" policies like affirmative action racial preferences. Chinoy, et al. also show that support for these policies is heavily driven by zero-sum assumptions, and immigrants and their children are far less likely to hold such views than natives. I outlined some other ways in which immigration reduces support for affirmative action here.

I don't want to overstate the importance of these points. As also noted in Chapter 6 of my book, recent immigrants tend to vote and otherwise participate in politics at lower rates than natives. That considerably diminishes any effect they have on political outcomes, whether good or bad. But to the extent they do have a marginal impact, it's likely to reduce political pressure for redistribution and racial preferences rather than increase it.

I would add that, as the authors point out, zero-sum worldviews are likely to be important for a range of issues beyond those they tested. For example, in addition to heavily influencing views on immigration, I would expect them to also influence views on protectionism. Indeed, a measure of zero-sum attitudes towards international trade is (quite properly) one of the authors' questions gauging zero-sum attitudes.

I would also expect zero-sum views to be crucial determinants of attitudes on such policies as rent control and "NIMBY" restrictions on housing construction. If you think the economy is a zero-sum game generally, you are probably more likely to also believe that housing is a zero-sum game between landlords and tenants, and between long-time residents and developers and potential migrants. Indeed, survey data on housing issues shows that much opposition to zoning reform is driven by false beliefs that new housing construction will not reduce prices, and other kinds of economic ignorance driven in part by zero-sum assumptions.

While most of the authors' evidence is limited to the United States, they note some data that suggests similar effects in other countries. Testing their hypothesis further in other countries is an important potential topic for future research.

As regular readers know, I am generally hostile to zero-sum thinking and the policies it leads to. I think zero-sum assumptions about immigration, housing, the interests of the poor and minority groups, and most other issues are largely wrong, and lead to pernicious policies. In previous writings, I have extensively critiqued zero-sum assumptions about immigration (e.g. here and here), and housing, among other issues. In most cases, zero-sum games only arise if pernicious government policies (often themselves based on zero-sum assumptions) needlessly create them. For example, housing can be a zero-sum game when exclusionary zoning blocks new construction in response to demand.

However, those more sympathetic to various types of zero-sum thinking than I am can also find value in the Chinoy, et al. article. Effects I view as pernicious, they might actually see as beneficial (and vice versa). Either way, the impact of zero-sum thinking on political views is an incredibly important field of study, and I commend the authors of this article for making a major advance in our understanding.

The above covers only part of what's in the article. There is much more. Serious students of this subject should make sure to read the whole thing.

The post The Origins and Influence of Zero-Sum Thinking appeared first on Reason.com.

Blanchard v. Augusta Bd. of Ed., decided yesterday by Judge Stacey Neumann (D. Me.), held that the First Amendment was likely violated by school board public commentary policies forbidding

1. "gossip,"
2. "abusive … language.,"
3. "vulgar language," and
4. "complaints or allegations … at Board meetings concerning any person employed by the school system or against particular students," also described as "[p]ersonal matters or complaints concerning student or staff issues."

The parties had agreed that the public comment period was a "limited public forum," a place opened up by the government for speech on particular subjects. In a limited public forum, speech restrictions must be viewpoint-neutral and reasonable. The court then held that the four restrictions noted above violated one or both of these elements:

[1.] Gossip:

By its terms, the gossip prohibition turns on what is being said: "rumors or information about the behavior or personal lives of other people." See Gossip, Merriam-Webster. Such a category of speech does not exist solely and definitively outside of that which relates to school or education matters. Comments about the conduct or personal behavior of teachers, administrators, or Board members may indeed bear directly on school operations and policy….

[And] Policy BEDH provides no objective standard to distinguish "gossip" related to school and education matters from other such commentary. That lack of clarity leaves speakers guessing at what is allowed and invites arbitrary enforcement by officials presiding over the meetings. Without a workable line, there is no "sensible basis for distinguishing what may come in from what must stay out." In practice, the rule allows the presiding officer's own sensibilities to determine what counts as "gossip," which "openly invites viewpoint discrimination."

The overbreadth concerns are equally apparent. Defined as "rumors or information about the behavior or personal lives of other people," the term "gossip" can easily encompass speech at the heart of the Board's public comment period—for example, a parent repeating information they have heard about a teacher's behavior in the school that relates to their child's education or a citizen relaying information about an administrator's conduct relevant to policy or budgeting decisions. Such speech may be sharply worded but still fully protected and directly tied to school business. A rule that sweeps this speech broadly into the category of "gossip" risks silencing criticism that the First Amendment protects….

[2.] Abusive language:

Merriam Webster defines "abusive" as "harsh and insulting" or "using harsh and insulting language." At the July 2025 Board meeting, the Chair similarly defined abusive language as "language that is harmful or offensive to a person." Read this way, the policy singles out speech that offends or insults its target. This is classic viewpoint discrimination. See Matal v. Tam (2017) ("Giving offense is a viewpoint."). Other courts evaluating comparable school board policies have reached the same conclusion.

To be sure, the Board is not powerless to regulate all manifestations of abusive speech. A policy that targets narrow, viewpoint-neutral characteristics—such as actual disruption, shouting, threats, or true harassment—or that explicitly and tightly defines the covered category may pass constitutional muster. Rule E, however, does not contain that kind of limiting construction. As applied here, "abusive" functions as a broad bar on offensive speech—an "undercover prohibition" on disfavored viewpoints.

Because the government "may not burden the speech of others in order to tilt public debate in a preferred direction," the Board's prohibition on "abusive" language is facially unconstitutional in this limited public forum. Mr. Blanchard is therefore likely to succeed on his facial challenge to the "abusive language" portion of Rule E.

[3.] Vulgar language:

Merriam-Webster defines "vulgar" in several ways, including "lacking in cultivation, perception, or taste," "offensive in language," and "of or relating to the common people." In the context of Policy BEDH, which prohibits "abusive or vulgar language" without reference to sexual content or obscenity, the most natural reading is "offensive in language." That understanding again steers the analysis toward viewpoint discrimination, because the rule targets speech for its perceived offensiveness rather than for its subject or disruptive effect.

The Supreme Court has recognized that schools may regulate certain vulgar student speech in the school setting. See Bethel Sch. Dist. No. 403 v. Fraser (1986). The Court understands the school board's desire to model respectful public behavior and to encourage civil discourse. Nonetheless, public school board meetings—open to adults and structured as a limited public forum—differ meaningfully from compulsory K–12 classrooms where the First Amendment permits greater regulation. In this setting, courts have instead focused on whether boards may exclude speech that is truly obscene or actually disruptive….

Nor is there a persuasive narrowing construction available on this record that would confine "vulgar" to unprotected obscenity or similar categories. Rule E does not use the word "obscene," does not tie "vulgar" to any requirement of disruption, and does not otherwise limit the term to a recognized class of unprotected speech. Instead, particularly when read alongside "abusive," Rule E leaves policing "vulgar" to turn on the presiding officer's sense of what language is sufficiently "uncultivated" or "offensive in language" to warrant exclusion. Such open-ended discretion raises the same concerns identified in Minnesota Voters Alliance v. Mansky (2018), where the Supreme Court cautioned that standardless rules invite arbitrary enforcement.

For these reasons, the term "vulgar" in Rule E can only be understood as a broad prohibition on offensive language that operates as an additional restriction on offensive viewpoints rather than as a legitimate, viewpoint-neutral decorum rule. In line with the Court's analysis of "abusive" speech, the "vulgar language" prohibition is facially unconstitutional, and Mr. Blanchard is likely to succeed on his facial challenge to that portion of Rule E.

[4.] Complaints, allegations, and personal matters concerning employees or students:

Defendants contend Rule H "restricts speakers from discussing a named or identifiable District employee regardless of whether the comment associated with that individual employee is criticism, praise, or something in between." Read that way, Rule H would operate as a ban on "personnel matters." A content-based restriction that excludes an entire subject—such as personnel matters—may be permissible in a limited public forum if it is viewpoint neutral (for example, barring all personnel-related comments, positive and negative) and reasonable (for example, by providing effective alternative channels for addressing those matters, such as through Policy KE).

Rule H, however, does not use the term "personnel." Instead, it refers to "personal matters or complaints concerning student or staff issues." … The ambiguity in Rule H's actual language drives the constitutional problem. It is not clear what "personal matters" encapsulates. If the phrase is meant to exclude speech related to purely private affairs—thereby removing it from the ambit of speech that relates to education and the school system—that limitation is not evident from the text alone. And in light of the forum's purpose, some purely "private matters" would already reasonably fall outside the permissible scope of discussion. But the definition of "personal" also relates to an individual's "conduct," "character," or "motives," and these words are vague in the context of Policy BEDH. Thus, while the Constitution does not require mathematical exactitude in language, the text of Rule H alone makes it unclear what speech it allows and what it prohibits….

The Board's shifting explanations of Rule H have not cured this uncertainty…. At the April 2025 meeting, the Chair suggested that "negative comments" about Board members were not permitted, even though Defendants later conceded at the hearing that Rule H does not bar speech directed at Board members, only at school employees. At the May 2025 meeting, a Board member stated that "the policy is that we will not speak positively or negatively about any personnel," and the Chair responded, "our current policy is only to not speak negatively." …

The vagueness doctrine "guarantees that ordinary people have 'fair notice' of the conduct a statute proscribes" and "guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions" of government officials. Rule H, as written, falls short on both fronts. The phrase "personal matters or complaints concerning student or staff issues" is steeped in subjectivity, and the record shows that Board members and the Chair have articulated different understandings of what the rule covers. Because the text does not clearly delineate its boundaries and the interpretive explanations have been inconsistent, Defendants have not shown that Rule H is capable of "reasoned application."

{Notably, Rule H, by its terms, applies only to "complaints or allegations" and "complaints concerning student or staff issues." For the reasons discussed herein, restricting only "complaints" is not viewpoint neutral. However, the Court need not address this issue further because it has enjoined Rule H in its entirety.}

{That is not to say the Board could not draft a public comment policy with a clear definition of "personal matters" that is appropriately prohibitive.}

But the court upheld the prohibition on "defamatory comments," "which the Court construes as limited to unprotected defamatory speech" of the sort that can lead to civil liability.

Some excerpts from the pretty long factual backstory, though the court's analysis generally focused more on the terms of the policies than the particular facts of the plaintiff's comments:

During [Mr. Blanchard's] public comment, he stated, "here in Maine, it seems we have too many soft beta males that won't stand up for what is right" and added "it seems that I am looking at a couple of [them] right here." The Chair interjected, stating "I'm sorry, but … disparaging remarks are not allowed." …

[At a later meeting,] Mr. Blanchard said, "I think we should all acknowledge the president of the Maine Principal Association that's going to cause all of our federal funding to go right out the window," while gesturing toward the Maine Principal Association ("MPA") President, who was present in the meeting room. The Chair interrupted him, stating "excuse me, excuse me … excuse me, no disparaging remarks." Mr. Blanchard asked, "how is that disparaging?" and then continued to express concerns about the potential loss of federal funding for Augusta public schools based on MPA's stance, specifically invoking the MPA President as the reason for the potential funding cuts.

The Chair replied, "those remarks are inappropriate. I'm sorry." Mr. Blanchard asked, "how are they? How is that inappropriate?" and added, "they're true." The Chair asked whether Mr. Blanchard had comments to make that were "not about … personnel," and Mr. Blanchard again asked, "how is that inappropriate?" This back and forth repeated itself. Mr. Blanchard then continued to speak against the purported loss of federal funding. A Board member moved to go into recess; the Board voted to approve the motion and went into a brief recess, effectively ending Mr. Blanchard's time at the podium….

[At another meeting,] Mr. Blanchard approached the podium wearing a t-shirt that displayed the words "YOUR FIRED" and a picture of Principal Kimberly Liscomb on the front. He began by thanking six Board members for their prior vote related to Title IX policies and contrasted their votes with that of the one member who had voted the opposite way; he did not identify any Board member by name. The Chair interrupted part of his commentary, stating the correct spelling is YOU'RE and Mr. Blanchard would be going to grammar jail "negative comments" were not permitted.

The exchange intensified when Mr. Blanchard discussed a petition to fire "Miss Kim" (i.e., Principal Liscomb), prompting the Chair to issue multiple warnings regarding "defamatory remarks about school personnel." Blanchard attempted to continue by referring to Principal Liscomb only by her professional title rather than her name. The Chair ruled it was "close enough" to a violation of Policy BEDH, however, and ordered Mr. Blanchard to leave the podium with approximately three minutes of his allotted speaking time remaining. As he left, Mr. Blanchard remarked, "wow, communist China right here." …

During the June 2025 meeting, Mr. Blanchard criticized what he viewed as the Board's selective enforcement of Policy BEDH and alleged the Board prioritized ideology over academic excellence. He stated that parents were "done watching the alphabet cult shove their propaganda down our throat and in our schools," prompting the Chair to interrupt and ask speakers to refrain from "disparaging remarks." …

David Robert Gordon and Stephen C. Smith (Steve Smith Trial Lawyers) and Brett Robert Nolan and Nathan John Ristuccia (Institute for Free Speech) represent plaintiff.

The post "Gossip," "Abusive Language," and "Soft Beta Males" in Public Comments at School Board Meetings appeared first on Reason.com.

From N.Y. Times v. U.S. Dep't of Defense a/k/a Dep't of War, decided yesterday by Judges Justin Walker and Bradley Garcia:

Last fall, the Pentagon announced a new policy governing Pentagon Facility Alternate Credentials (PFACs), the passes journalists have historically used to access the Pentagon. The new policy restricted this access and implemented rules that would allow the Pentagon to revoke credentials if the holder was determined to be a "security or safety risk to Department personnel or property." A reporter could be deemed a "security or safety risk" "based on the unauthorized access, attempted unauthorized access, or unauthorized disclosure" of Department information.

The New York Times (NYT) and one of its journalists, Julian E. Barnes, filed suit to enjoin several provisions of the policy as unconstitutional under the First and Fifth Amendments, and as arbitrary and capricious under the APA. On cross-motions for summary judgment, the district court held that the rules governing when a PFAC may be denied for "security" reasons were unconstitutionally vague in violation of the Fifth Amendment because they "fail[ed] to provide fair notice of what routine, lawful journalistic practices" would trigger credential revocation.

Turning to the First Amendment, the court noted there was no dispute that "[t]he regular presence of PFAC holders at the Pentagon … enhanced the ability of journalists and news organizations … to keep Americans informed about the United States military." Moreover, this arrangement had "pos[ed] no security or safety risk to Department property or personnel." By contrast, the district court concluded that the record was "replete with undisputed evidence that the Policy" was specifically, and unreasonably, designed to deprive "disfavored" journalists of access to a nonpublic forum. Accordingly, the district court granted summary judgment to the plaintiffs on their constitutional claims, without addressing the APA claim.

The next business day, the government replaced the invalidated policy with a new one that revised provisions the district court had declared unconstitutional and announced new "physical security restrictions" for all PFAC holders. Those restrictions required that PFAC holders be escorted in all areas of the Pentagon "at all times" and limited their opportunities for entry to five approved purposes. At the same time, the Department announced that the previously available workspace in the "Correspondents' Corridor" was closed and that a new workspace "will be established in an annex facility."

The plaintiffs promptly moved to compel compliance with the summary judgment order, and the district court granted that motion. In addition to declaring the "adoption and enforcement" of "the escort requirements and access limitations" in violation of its previous order, the district court ordered the Department to reinstate "access" to the Pentagon "commensurate with the access provided to PFAC holders on March 20, 2026, following this Court's Order vacating certain provisions of the prior PFAC Policy." The Department responded by asking the district court for a stay pending appeal "to the extent" the district court's order "vacate[d] and enjoin[ed] the Pentagon's new physical access restrictions—the escort requirement and the physical access limitations." The district court denied that motion but granted a fourteen-day administrative stay to allow the Department to seek relief here.

The Department sought an emergency stay pending appeal, limited solely to the order's "entitl[ing] reporters to access the Pentagon unescorted." "[The Department represented to the district court that 'there is no requirement' under the Interim Policy 'to make advance requests for an escort' and there would be 'no concern that the Department could deny' a PFAC holder an escort."

The panel majority agreed:

On the questions of irreparable harm, the balance of equities, and the public interest, both parties identify weighty competing interests. The Pentagon Press Secretary has submitted a declaration explaining that prior to the 2025 PFAC Policy, journalists obtained "sensitive or classified" information "often monthly, and sometimes multiple times per month," including information concerning "operational plans" and "intelligence assessments." Unescorted access to the Pentagon was, according to the Department, "a significant contributing factor" to that pattern because it enabled reporters to "observe activity patterns" and identify potential sources of sensitive information. On that basis, the Department argues that unescorted access to the Pentagon will increase the risk that journalists obtain and disseminate sensitive information, jeopardizing national security. The Department has thus supported its claim that this aspect of its policy furthers important national security interests.

For their part, plaintiffs contend that the policy burdens newsgathering by restricting access in ways that impair their ability to "ask questions, confirm information," and "receive timely updates"—opportunities that once lost, "will be lost forever." That burden extends beyond the press itself, implicating the public's interest in the free flow of information about government operations.

Because both sides have established substantial, competing interests, the balance of the equities and the public interest do not strongly favor either party. Our decision therefore turns on the merits.

The Department has shown that it is likely to succeed on the merits of the issue it presents. Under settled law, an agency may respond to an adverse ruling by adopting a revised policy, and it "need not seek modification of [an] injunction before it initiates" those efforts. That principle is implicated here. The escort requirement was not contemplated by the challenged 2025 policy. So the district court's March 20 summary judgment opinion and order did not address that provision or a similar one.

Moreover, in part because the challenge to the Interim PFAC Policy was presented in a motion to compel compliance, the district court did not hold that the escort requirement independently violates the First or Fifth Amendment. On this record, the Department is likely to succeed in its argument that the escort requirement in particular is a new, generally applicable requirement that is not invalid for violating the district court's summary judgment order or the constitutional principles underlying it.

And from Judge Michelle Childs' dissent:

An injunction is not an invitation to circumvention. Once a court has spoken, the party bound by its order may not evade it through creative policymaking. On March 20, the district court ordered the Department of Defense to restore certain New York Times reporters' Pentagon press credentials. The Department responded by restoring the credentials but stripping away much of what made them matter: regular, unescorted access to the Pentagon and the press workspace inside it.

The district court determined that such conduct was noncompliant with its injunction. My colleagues stay that ruling. Because the Department has not made a strong showing that the district court erred in interpreting its own injunction, I respectfully dissent….

I start with the district court's authority to interpret its own injunction. As a rule, a district court has both "jurisdiction" and "inherent power to enforce its judgments." That power reflects the judiciary's institutional interest "in seeing that an unambiguous mandate is not blatantly disregarded by parties to a court proceeding." With that in mind, we review a "district court's interpretation and enforcement of its own orders" for abuse of discretion.

As Justice Scalia put it, "the construction given to the injunction by the issuing judge … is entitled to great weight." Justice Breyer later described the same principle as "longstanding and well established." On that understanding, "[t]he court granting the injunction is necessarily invested with large discretion in enforcing obedience to its mandate, and … courts of appellate powers are exceedingly averse to interfering with the exercise of such judgment and discretion."

That discretion is not exercised by parsing an injunction as though it were a tax code…. [W]e must read an injunction in light of "what the decree was really designed to accomplish." To identify that purpose, we consider "the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent." …

Nor may a party exploit uncertainty as a license to disobey an injunction. If an injunction proves "too burdensome in operation," the party has "a method of relief apart from an appeal." It may petition the district court "for a modification, clarification or construction of the order." After all, an appellate court is not the proper forum of first instance for resolving the particulars of an injunction….

These principles decide the point here. The Department was not free to make its own practical construction of the Merits Order, adopt a substitute policy that preserved the very "mischief that the injunction seeks to prevent[,]"and then insist that compliance was complete because the new policy was labeled "interim." The district court was entitled—indeed required—to measure the Interim PFAC Policy against the Merits Order's purpose, the record that produced it, and the access it was designed to protect. Viewed through that lens, the district court correctly decided that the Department had not complied….

In light of those principles, the district court's Merits Order was clear that the Department had to "immediately reinstate the PFACs" of seven New York Times reporters. The Department did not do that. Instead, as the district court found, it "cut off all PFAC holders' meaningful access to the Pentagon." That finding matters because the point of the injunction, as the district court interpreted it, "was to restore The Times journalists' access to the Pentagon, not merely to ensure that they have possession of a physical credential." The Interim PFAC Policy thus runs headlong into what the injunction "was really designed to accomplish."

The district court's factual findings confirm the point. As even the majority notes, the Department announced—on the next business day after the injunction issued—that it was closing the Correspondents' Corridor. The district court also found that the Department relegated PFAC holders "to work from a space outside the Pentagon building." And it found more still: the Department announced that journalists could no longer enter the Pentagon "at all without a Department escort," and that even escorted access would be limited to particular events. The Interim PFAC Policy says just that. PFAC holders may "continue to have access to the Pentagon for scheduled press briefings, press conferences, and interviews arranged through public affairs offices." Even then, they must be escorted by authorized Department personnel "at all times.".

That is not the access the Merits Order restored. In explaining why "the remedies available at law [were] inadequate," the district court expressly relied on the proposition that "the only way to remedy the injury [from the loss of a press credential] is to return the hard pass and the access that comes with it."

As for the facts it relied upon, the district court explained that the parties did not dispute that the "[t]he regular presence of PFAC holders at the Pentagon has enhanced the ability of journalists and news organizations to keep Americans informed about the U.S. military while posing no security or safety risk." The district court also found that it was undisputed that from the Pentagon "reporters historically have been able to cover official press briefings, including those called on short notice (or without notice), and to ask questions of Pentagon officials at (and before and after) those briefings." The district court found next that those reporters "also have engaged in additional semi-formal and informal conversations with senior Department officials and their aides, as well as public affairs staff." "These in-person interactions," as the district court determined and the parties did not dispute, "can be crucial to obtaining the context and detail needed to report accurately and effectively about defense policy and military operations."

That makes sense. Reporters can hardly verify sources, gather information, or speak candidly with Department personnel with an escort looming over their shoulders. Given the district court's factual findings and the law it applied, the purpose of the injunction was clear: The Department had to give PFAC holders unescorted access. That was the status quo through decades and wars—including after the "terrorist attack on September 11, 2001." …

Given the foregoing reasons, the Department has not made a "strong showing that [it] is likely to succeed on the merits." The Department bears the burden of justifying "such an extraordinary remedy," and its stay application fails on the first stay factor. Since the Department has not shown that the Interim PFAC Policy likely complied with the Merits Order, I would deny the stay without reaching the remaining factors….

The post D.C. Circuit Lets Pentagon Require That Journalists Be Escorted While in Pentagon appeared first on Reason.com.

This paper studies how generative AI has reshaped entry into the federal civil court system. Drawing on administrative records covering more than 4.5 million non-prisoner federal civil court cases from FY2005-FY2026 and 46 million PACER docket entries matched to those cases, we document three sets of findings.

First, the number of pro se cases—or self-represented cases—is increasing dramatically, rising from a long-term steady-state average of 11% to 16.8% in FY2025. This increase is concentrated in case types characterized by formulaic document production and absent from more complex, attorney-intensive categories.

Second, we argue these cases are placing larger burden on federal district courts. Pro se cases are not terminating faster, and this combined with the increased case numbers suggests more cases for judges to process. Moreover, intra-case activity is up, with the total volume of docket entries per court generated by pro se cases in their first 180 days up 158% from pre-AI means to 2025.

Third, we directly validate that AI use is increasing in federal courts. Using a random sample of 1,600 complaints drawn from an 8-year period (2019-2026), we find that a large and growing share of complaints are flagging positive for AI-generated text, from essentially zero in the pre-AI period to more than 18% in 2026.

Don't know how it's carrying over to state courts, but one would think that it would.

The post Apparent Surge in Self-Represented Litigation Using AI appeared first on Reason.com.

In 2024, as part of my research on the Jack Smith case, I compiled a corpus of primary sources about special counsels before Watergate. Much of this research was novel and had not been assembled before.

I have now published this article in the South Texas Law Review. It is titled, "A Historical Record Of Special Counsels Before Watergate."

Here is the abstract:

This Article presents a corpus of primary sources that were written by Presidents, Attorneys General, United States Attorneys, Special Counsels, and others between the 1850s and the 1950s. This corpus reproduces primary sources from more than a dozen archives to present a better legal account showing how Special Counsels were retained by Attorneys General under Presidents Buchanan, Andrew Johnson, Grant, Garfield, Theodore Roosevelt, and Truman.

During these six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: (1) to assist a U.S. Attorney with prosecutions, or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a Special Counsel, and then delegate to him the powers now claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. Attorney.

There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome Scandal defendants. These Special Counsels were afforded "total independence." It is doubtful that these positions would be consistent with the Supreme Court's modern separation of powers jurisprudence.

This practice shows that the positions of special counsels in the post-Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with.

The issue of the special counsel has fallen to the wayside for the moment, but I suspect this article will prove useful at the appropriate time.

The post Published Article: A Historical Record Of Special Counsels Before Watergate appeared first on Reason.com.

[O]n January 3, 2024, a video she was in gained popularity on social media… [T]he video was made on December 29, 2023, and showed Petitioner, off duty, taking down a poster that was attached to an outdoor pole. [According to the employer,] {the video showed Petitioner removing posters depicting children that were kidnapped in Israel on October 7, 2022, by the group Hamas and being held hostage} …. [I]n response to the video, she was harassed by hate groups, including one that she called "Stop Antisemitism." … [T]he poster she was taking down was intended to create fear, justify the genocide in Palestine, and encouraged the killing of Palestinian children….

Petitioner was allegedly fired on the grounds that "the video was not a good look for Employer," that the employer "was being called antisemitic by online commentators" and was "losing patients as a result of the video" and "the action Petitioner took was misaligned with Employer's core values and … Petitioner's conduct showed a lack of empathy toward the events on October 7, 2022."

Petitioner claimed:

[Petitioner] is Muslim and holds genuine religious beliefs associated with Islam…. [T]he sanctity of human life is included in her religious beliefs and the idea that every life is worthy of equal respect and dignity, regardless of their religion…. Islam teaches that resistance in the face of oppression, expulsion, and persecution of faith is necessary, and that resistance can take many forms and need not be violent…. [T]he need to resist was especially prevalent because, among other reasons, Muslims around the world view solidarity with Palestinians and resistance to Israeli occupation as an act of their Islamic faith….

The panel rejected Ali's religious harassment claim:

The alleged harassing conduct occurred off Employer's premises, outside of work hours, and was conducted by third-party persons, none of whom were employed by employer. Therefore, the alleged harassment did not alter Petitioner's terms and conditions of employment or create a hostile or abusive working environment….

And it rejected Ali's religious discrimination claim:

Petitioner claims that Employer subjected her to unlawful employment discrimination when it discharged her on January 4, 2024, on account of her religion. Specifically, Petitioner claims that Employer discharged her in response to the December 29, 2023, video of her pulling down a poster while off work. However, … there are no references in Respondent's record to similarly situated employees outside of Petitioner's protected class that were treated more favorably under the circumstances….

[And u]nlike in previous Commission cases [such as one] {finding substantial evidence of pregnancy-based unlawful discrimination without a comparator where there was additional evidence, including statements related to the petitioner's pregnancy and conduct such as interrupting or interfering with her pumping, indicating that the petitioner's discharge was pregnancy-related}, in this case, there are no references in Respondent's record to Employer's statements or conduct directly implicating Petitioner's religion so as to create an inference of religious-based discrimination….

Note that the decision doesn't discuss any religious accommodation claim, presumably because Ali didn't raise it. She had said that her religious beliefs caused her to take down the flyers (as an act of "solidarity with Palestinians and resistance to Israeli occupation as an act of their Islamic faith"). Therefore, in principle, she could have argued that the employer had to accommodate her religious beliefs by not firing her, unless it could show "undue hardship" (see Groff v. DeJoy (2023)); Illinois religious discrimination law includes a duty of reasonable accommodation just like federal law does. It would have been interesting to see what the Commission would have made of the argument.

The post No Religious Discrimination in Firing Employee Because of Controversy Caused by Employee's Removing Israeli Hostage Posters appeared first on Reason.com.

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Yesterday, the Supreme Court heard oral argument in Monsanto Co. v. Durnell. The facts of this case are likely not of concern to most constitutional law scholars, but the dispute is of serious concern to the business community. The plaintiff sued Monsanto (which is owned by Bayer) for harms caused by the Roundup herbicide. (Don't call it a pesticide, as Justice Thomas--a former Monsanto employee--reminded us.) The jury awarded $1.25 million in compensatory damages based on a failure to warn about possible harms. Bayer counters that the EPA did not require those additional warnings, so the state tort claims is preempted.

Going into the argument, I struggled to count to five votes for the plaintiff.  Preemption is an area where the Court's conservatives do not line up neatly. Justice Thomas, the Court's most committed federalist, has often been skeptical of federal preemption. See his opinion in Hencely just last week. I thought Justice Gorsuch would be in a similar spot. I was fairly certain Justice Kavanaugh would be troubled by the possible economic effects on companies like Monsanto, and would favor broad federal preemption. I suspected that Chief Justice Roberts would fall in a similar camp. Same for Justice Alito. I wasn't sure where Justice Barrett would be. It It was conceivable that Justice Kagan would favor broad federal preemption to promote uniformity, but I was doubtful.

Having now listened to the oral arguments, I will stand by my prediction. Everyone lined up about where I expected. Despite Paul Clement's best efforts, I'm not sure where Monsanto finds five votes. Indeed, the Justices seemed to have very few questions for Ashley Keller, counsel for the Durnell. Perhaps they were a bit tired, as the argument in Chartrie stretched nearly two hours, but Keller was able to talk uninterrupted for several minutes. And with about ten minutes remaining, and no further questions coming, Keller sat down. As a general rule, the side that gets the most questions is more likely to lose. Then again, the Justices may have been spent after the Fourth Amendment case.

Justice Alito was entirely silent during the argument except when he perked up during an exchange about Loper Bright. I flagged this issue in a prior post. Everyone agrees that Congress can preempt state law through a statute. But what about when an agency purports to preempt a state law through regulations? Under the Chevron regime, the agency would likely get deference when its regulation interprets a complex (ambiguous) statutory regime. But after Loper Bright, does that agency still receive deference? And if the agency does not receive deference, can a state court, in a tort suit, interpret the federal statute to determine if there is federal preemption? In other words, who gets to interpret the statute: the agency or the court. Who decides? Loper Bright would seem to suggest that courts decide legal questions, rather than agencies. Or does Loper Bright not envision a role for state courts to decide the preemptive effect of federal regulations?

Consider this colloquy:

JUSTICE KAVANAUGH: So the Solicitor General was wrong about that?

MR. KELLER: Yeah. Very respectfully, yes, he is. And you don't give deference to the Solicitor General in interpreting FIFRA. You look at the words for yourself. So, yes, the United States is wrong about that. Then they go to the regulations. They quickly jump to the regulations. What's the source of authority for those regulations? If you ask the EPA the source of authority for those regulations, I kid you not, it's 136 to 136y. They cite the entire statute. That's their source of authority. If you cite the entire statute as your source of authority, that's a pretty good indication that you don't really have a good textual source of authority. Again, maybe in the Chevron regime, we might have looked past that, but we're in the Loper Bright regime. I think you need affirmative text for what they can regulate.

JUSTICE ALITO: Well, Mr. Keller did Loper Bright say one word about preemption?

MR. KELLER: No, it doesn't, but I -

JUSTICE ALITO: Loper Bright is about the relationship between two branches of the federal government, right?

MR. KELLER: Well, I --I agree with that. I think it is always a separation of powers issue if you're going to ask whether the executive branch gets to pronounce what the law is instead of the judiciary. And then, of course, that's relevant in the preemption context.

JUSTICE ALITO: Why is it relevant? Preemption involves the relationship between the federal government and the states.

What follows is a fascinating exchange about precedent. Do the members that joined Loper Bright have a special insight about how that precedent should be extended in some other context? Or can a new majority of the Court then decide to extend Loper Bright, even if some of the members of the majority (including Justice Alito) disagree.

MR. KELLER: It --it does, and under the Supremacy Clause, federal law is the supreme law of the land, so what counts as federal law is relevant to every preemption inquiry. I --I would be surprised if Loper Bright were somehow cabined and not applied in preemption cases where a regulation is doing the work to create preemption. You have the separation of powers problem plus a federalism problem because you're letting the executive, not Congress, preempt valid state law. That should only be done pursuant to a valid delegation.

JUSTICE ALITO: Well, your --your prescience about where the law might go is -is interesting, but it's not there now, is it?

MR. KELLER: Well, I --I think that that's what you meant in Loper Bright. You all know better than I do what you really meant in Loper Bright, but I think a rule that says the Loper Bright regime is cabined to separation of powers cases and doesn't apply in preemption cases I don't think makes analytical sense. You could draw that line. You've drawn lines before that maybe previously didn't occur to me that subsequently emerged. So I'm not going to tell you you couldn't do it.

In other words, the Court could not logically exclude preemption cases from the Loper Bright framework.

JUSTICE ALITO: You think that would be an irrational line to draw?

MR. KELLER: I do, yes, because Loper Bright is asking the same sort of question, who decides what the law is? Is it the judiciary or is it the executive branch? That is obviously relevant to preemption questions when we're trying to figure out what the law of the United States says.

Who decides, as Judge Sutton would ask. This argument is tailor made for Justice Gorsuch. Again, if Thomas and Gorsuch rule for Durnell, it will be tough to count to five. Then again, Justice Kagan might be an unlikely vote for Monsanto. She continued this exchange after Justice Alito finished:

JUSTICE KAGAN: Well, Loper Bright didn't suggest that Congress couldn't delegate power to agencies.

MR. KELLER: I agree.

JUSTICE KAGAN: And it seems here as though there's a pretty big delegation of power to EPA to figure all these matters out.

MR. KELLER: I agree there is an important set of delegated powers to EPA. And there are many that we haven't discussed that I do think would create labeling requirements. But the registration provision of 136a, which is where he and the government hang their hats, I do not think is this broad delegation to ultimately decide whether a pesticide is misbranded or not. I agree with you, though, there are express delegations of authority that I do think could create labeling requirements. I can give you 136w(c)(2).

JUSTICE KAGAN: Well, I mean, if we just sort of think about this scheme, right, it says to EPA you have to do this big study, you have to weigh costs and benefits, you have to figure out on the basis of that whether to register a pesticide, you have to do that again every 15 years, you have to keep track of things in the interim, you have to, you know, take seriously further information that industry gives you after registration.There just seems like a lot of stuff that the EPA does and is told by Congress to do to ensure the --the appropriateness of a particular pesticide.

MR. KELLER: I completely agree with you. FIFRA is structured in a way to maximally protect the consumer. So selling an unregistered pesticide is the first offense in 136j. But you also can't sell a misbranded pesticide.

Justice Barrett had very few questions. I don't know where she falls on this Loper Bright issue.

There would be some irony if the business community succeeded in Chevron, only to have that doctrine push back against federal preemption. I am not at all convinced Loper Bright has made an actual difference to the outcome of business cases, but narrowing the scope of federal preemption would make a huge difference.

The post <i>Loper Bright</i> and Preemption appeared first on Reason.com.

In response to my two-part series (1, 2) on what to do with AI-generated scholarship, my good friend and former colleague Daniel Solove writes in with a question/comment:

What's the difference between you here and a judge?  A judge directs legal opinions and puts their name on them, so aren't they doing the same thing, just with a human writer vs. AI?

Claude is just a law clerk.

Fair questions.  I disagree, because I think the norms of authorship for legal opinions and scholarship are different.

Judicial opinions are exercises of formal government power, and the fact that one judge signs it is just a convention.  Say there's a federal court of appeals case heard by a three-judge panel of Judge Ay, Judge Bee, and Judge Cee.  If the panel hands down a published ruling, what makes the document important is that the formalities are met.  It's a ruling in the case issued by a three-judge panel authorized to issue it that is binding authority in the circuit. It really does't matter who formally signed the ruling. It's equally important as precedent whether it is signed by Judge Ay, Bee, or Cee, or whether it is unsigned and issued per curiam.

Plus, we don't think it's really just the judge who signed the opinion whose view is reflected within it. We understand that an opinion signed by Judge Cee was really the collective view of all three judges. Perhaps it's more that of Judge Cee than the other judges, but it's something that Judges Ay and Bee could go along with, too.

In that setting, where individual authorship really doesn't matter and the document is important because of the formalities, it makes sense that we wouldn't have a law clerk's signature on an opinion they helped draft (or, in some cases, drafted entirely).  The opinion is an institutional message, and it's the institution that matters. The names on the document don't matter much, but they understandably reflect those in the institutions who have the power over the message.

I see scholarly norms as different, at least when it comes to traditional law review articles.  With scholarship, the scholar is saying, this is my view. I see the norms of scholarship as more like that of a soloist at a jazz concert.  At a jazz concert, the solo is the musician's time to make a statement.  If a tenor saxophonist gets up on the bandstand to begin their solo and instead pulls out a phone and hits "play," playing back a recorded solo performed by John Coltrane, we wouldn't say that the soloist is just as fantastic as John Coltrane. We wouldn't celebrate the soloist for expertly finding that Coltrane solo and skillfully hitting "play" at the right time.  Instead, we would feel cheated.  The soloist was supposed to make a statement, and instead he made no statement of his own at all.

I get that such norms can be contingent.  What kinds of expression are valuable for their individuality, and which kinds are not, is something to debate rather than to logically resolve.  And at some point, the selection of others' works can become a kind of statement of its own.  But when it comes to AI, or at least my own AI-generated scholarship, I see AI as doing more than just executing my formal directives.  So I see the scholarly norms as different, and I don't see AI as "just a law clerk."

Or so it seems to me. Curious what others think on this.

The post Why AI Isn't Like a Law Clerk appeared first on Reason.com.

From today's decision by Judge Gerald Pappert (E.D. Pa.) in EEOC v. Trustees of Univ. of Pa.:

In the wake of Hamas's October 2023 terrorist attack on Israel, the University of Pennsylvania's then-President Elizabeth Magill and others affiliated with the school stated publicly numerous times that Jewish faculty, employees and others at Penn had been subject to vile acts of antisemitism and harassment on campus…. Prompted by these statements, … [t]he EEOC … issued an administrative subpoena, with which Penn refused to comply, seeking contact information for Penn employees who may have been victims of, or witnesses to, such harassment…. The Court granted the EEOC's application [for] {judicial enforcement of the subpoena}, requiring Penn to comply with most of the subpoena by May 1.

Penn, and later the intervenors, moved to stay the Court's order pending appeal…. Penn does not have a strong chance of prevailing on appeal but makes, narrowly, a showing of irreparable harm. Staying the Court's order will not substantially injure the EEOC and a stay will allow the Third Circuit Court of Appeals to address in an orderly manner a matter of great public interest….

A request for a stay pending appeal prompts four questions: (1) whether the applicant has made a strong showing it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether a stay will substantially injure the other party in the litigation; and (4) whether the public interest favors a stay….

Penn does not have a strong chance of success on the merits, and its motion further exposes its vulnerabilities on appeal. The charge of discrimination is valid, the EEOC's subpoena seeks information relevant to the charge and the subpoena does not unduly burden Penn. The subpoena also does not violate substantive due process or the First Amendment. The Court explained its reasoning in its memorandum opinion [see this post], and Penn either ignores that reasoning, mischaracterizes it, or objects to it on superficial and conclusory grounds….

Penn … contends the EEOC's subpoena is "so novel" it cannot be enforced. Penn stresses "the EEOC has cited no authority in which a court enforced a subpoena conscripting an employer to identify employees of a specific religion."  But the EEOC requested this information to further a charge of discrimination based on religion because in 2023 President Magill made numerous public statements over a one-month period describing the pernicious acts of antisemitism Jewish individuals, including faculty and other employees, experienced on Penn's campus.  While the EEOC's investigation of a major university for alleged systemic religious discrimination may be comparatively unique, the purpose of its subpoena is not. The subpoena seeks contact information for employees affiliated with the Penn Jewish community because, in the EEOC's view and to tailor its requests as narrowly as possible, those employees are more likely to possess information relevant to whether Penn subjected Jewish employees to a hostile work environment based on religion.

Most importantly, Penn has no support for its proposition that a court may quash an administrative subpoena because it contains a "novel" request. Penn wants the Court to sanction a newfangled principle—that an EEOC subpoena is invalid if it does not "resembl[e]" other judicially enforced EEOC subpoenas. At bottom, Penn appears to believe that a different set of legal standards should govern the enforceability of EEOC subpoenas in discrimination cases involving religion generally, and antisemitism specifically. But Penn neither articulates what those standards are, nor cites any precedent pursuant to which courts can fabricate them.

Penn wants to dictate the terms of the EEOC's investigation, continuing to argue it can contact its employees on the EEOC's behalf. But that gives an employer subject to a federal investigation an unacceptable role in, or authority over, how that investigation is conducted….

[Penn] contends the charge of discrimination fails to state a method of discrimination because it is "blank" and "merely asserts a legal conclusion." But again, the charge fairly alleges Penn failed to provide Jewish faculty, staff and other employees a work environment free from religious harassment in the form of antisemitic slurs, messages and threats of violence, pointing Penn to specific acts of antisemitic harassment employees may have experienced on campus.  That suffices to allege a method of discrimination ….

Penn mischaracterizes the Court's opinion as concluding that a commissioner can state a valid method of discrimination by merely alleging an employer has violated Title VII. As Penn knows, that is not what the Court held, and Penn fails to advance a single critique of its actual reasoning. Requiring a commissioner to allege more than what Commissioner Lucas alleged here would "oblige the Commissioner to substantiate [her] allegations before the EEOC initiates an investigation, the purpose of which is to determine whether there is reason to believe those allegations are true."

At oral argument, Penn said the charge could have alleged Penn required employees "on their way to work to run a[n] [antisemitic] gauntlet." The charge pretty much says just that. Based on President Magill's statements describing specific acts of antisemitic harassment Jewish faculty and employees experienced on campus, the charge alleges Penn permitted Jewish faculty, staff and other employees to endure religious harassment in the form of antisemitic slurs, messages and threats of violence.

Penn also argues the subpoena violates its employees' right to informational privacy. Specifically, it contends the Court did not "squarely" address whether mere affiliation with a Jewish-related organization on campus falls within the ambit of materials protected by substantive due process. But as the Court explained, Penn offered nothing to support this argument.

Information is private if it is generally unavailable and a person treats it as confidential. Penn presented no facts that could show its employees' affiliation with Jewish-related organizations is generally unavailable and that the employees keep this information confidential. Nor did Penn contend that affiliation with a Jewish-related organization on campus is inherently private information, such as a person's medical records. Adjudication of substantive due process rights relies on facts and legal arguments, not conclusory and generalized assertions of privacy.

More importantly, the Court's substantive-due-process holding did not turn on whether the affected employees have a privacy interest in the information sought by the subpoena. The Court assumed the EEOC's subpoena sought private information and then balanced the EEOC's interest in collecting it against the employees' interest in keeping it from the EEOC….

As the Court explained, the EEOC has a substantial interest in investigating a valid charge of discrimination.  It has a reasonable need for the information at issue because it seeks to contact Penn employees likely to possess evidence relevant to whether Penn subjected Jewish employees to a hostile work environment based on religion.  Nothing suggests EEOC personnel will use the information to harm the affected employees.  And Title VII protects against unauthorized disclosure of the information….

Another reason Penn is unlikely to win on its informational privacy claim is that such claims rarely, if ever, succeed. Each time it has spoken on the subject of informational privacy, the Supreme Court has permitted disclosure upon balancing the interests at stake. See Whalen v. Roe (1977) (upholding a state system that records personal information of patients who obtain prescription drugs); Nixon v. Adm'r of Gen. Servs. (1977) (requiring President Nixon to disclose information); NASA v. Nelson (2011) (requiring federal contract employees to disclose information to the government). And the Third Circuit Court of Appeals has taken a similar approach.

Finally, Penn argues the subpoena infringes the affected employees' right to associate with Jewish-related organizations on campus. The Court viewed the subpoena through the lens of exacting scrutiny, as Penn wanted it to do. Under that standard, there must be a substantial relation between the subpoena and an important governmental interest, and the governmental interest must reflect the seriousness of the actual burden imposed on the affected employees. The subpoena must also be narrowly tailored.

As the Court explained, the EEOC has an important interest in investigating a valid charge of discrimination.  Next, there is no dramatic mismatch between that interest and the subpoena the EEOC issued.  The subpoena seeks contact information for employees in Jewish-related organizations because they are reasonably likely to have information relevant to the charge.  And the EEOC's interest in enforcement of the subpoena reflects the actual burden imposed on the affected employees.  The subpoena does not require Penn to disclose an employee's specific affiliation with a particular organization.  Nor does it require Penn to publicize any information.  And the record contains no evidence showing enforcement of the subpoena would actually chill the affected employees' ability to associate with Jewish-related organizations on campus.

Finally, the subpoena is narrowly tailored. Narrow tailoring requires the EEOC to demonstrate its need for the information in light of less intrusive alternatives.  But an alternative must be adequate.  And an alternative may be inadequate if it is ineffective.  The claimant "bears the burden to provide, in the record, evidence of … feasible alternatives" and the "government can then rebut by demonstrating that [the] alternative measures … would fail to achieve its interests."

Penn did not point to any alternative, arguing only "the EEOC's sweeping inquiry into all employee associations with Jewish-related organizations is not 'narrowly tailored to the' agency's asserted interest in hearing about employee experiences with antisemitism." The intervenors pointed to two alternatives, arguing Penn could inform its employees of the EEOC's investigation and the EEOC could invite Penn employees to contact it through a hotline.

The Court addressed both of the intervenors' alternatives in its opinion, finding them inadequate.  The first proposal forces the EEOC to speak through Penn, which discourages employees to report discrimination.  And both proposals prohibit the EEOC from contacting potential victims or witnesses of harassment directly to inform them of their rights and learn if they have evidence of discrimination.

Since the Court's ruling, Penn has come up with its own alternative. It now argues a third-party vendor may inform its employees of the EEOC's investigation. But this suffers from the same flaws as the intervenors' alternatives.  It strips the EEOC of its ability to contact possible victims or witnesses of antisemitic harassment, inform them of their rights, learn if they have evidence of discrimination, and attempt to persuade them to come forward if they do.

Penn also suggests the EEOC can contact every one of its over twenty thousand employees, but as Penn already knows, this too is inadequate. The EEOC has limited resources, so forcing it to contact twenty thousand individuals would significantly undermine its ability to conduct an effective investigation, not to mention that if it tried to do so, Penn would complain that the investigation was overly broad.

Moreover, narrow tailoring in this context requires only a "reasonable fit" between the EEOC's goal and the means chosen to accomplish that goal. Bd. of Trs. v. Fox (1989). If the EEOC's subpoena is "in proportion to the interest served," the Court must "leave it to [EEOC] decisionmakers to judge what [requests] [] may be best employed."

There is a clear fit between the EEOC's subpoena and its interest. The subpoena seeks contact information for Penn employees aligned with the Penn Jewish community because they are reasonably likely to possess information relevant to whether Penn subjected Jewish employees to a hostile work environment based on religion.

But despite that, the court stayed its decision, because "[t]he irreparable-harm factor in this high-profile administrative subpoena enforcement action tilts in Penn's favor, albeit barely," and because of the public interest "in the orderly resolution of this case through the ordinary appellate process":

Penn asserts a successful appeal would not prevent or fully rectify its disclosure of the affected employees' information to the EEOC. The EEOC responds that if respondents prevail on appeal, the Third Circuit Court of Appeals can order the EEOC to destroy the information Penn turned over. But that would not prevent or fully rectify the initial disclosure of the information to the EEOC….

The post Judge Reaffirms: EEOC May Subpoena Penn's Records as to "Jewish-Related Organizations" (and Others) in Investigation of Anti-Semitic Harassment at Penn appeared first on Reason.com.

The Supreme Court held oral argument this morning in Chatrie v. United States, the geofence warrant case.  I live-tweeted the two-hour argument over at both X and Bluesky, and click the links there to see the play-by-play.  For those wanting the big picture, here are my initial thoughts right after the argument:

(1) The most important takeaway is that the Justices seem likely to reject the broader arguments Chatrie made that geofence warrants are categorically unconstitutional or cannot be drafted in ways that could identify suspects. They seem likely to rule that geofence warrants can be drafted constitutionally, rejecting the 5th Circuit's view in Smith.  I suspect they will likely hold that geofence warrants have to be limited in time and space, and leave the details to lower courts. There were some Justices who wanted to address the multi-step process of Google's warrant procedure and say new warrants were needed for those steps—that was the view, if I recall correctly, suggested by Justices Sotomayor and Jackson. But I don't know if the majority will get that far.

(2) I don't know if the Court will rule on whether there was a search. I would guess that they assume a search and say the warrant was constitutional, so they don't have to decide the search question. There was a lot of discussion of whether location history records were kept in a virtual private locker, and I heard the government conceding that this was a viable theory of protection for cloud-stored *content* records, like calendar entries and photos stored in the cloud, that the user directly controls. But I don't know if the Court will weigh in on that or just assume a search and focus on the constitutionality of the warrant.

(3) I was somewhat surprised by the government not pushing back more late in the argument, especially in response to arguments that its search arguments are maximalist, or that there were practical problems with getting warrants, or that warrants might be needed if the revealed location was a home.  Late in the argument, the government seemed in a conciliatory mindset, perhaps sensing a victory on the warrant issue that it didn't want to place at risk. But Smith v. Maryland expressly holds that voluntary disclosure from the home that reveals presence in the home is still not a search. And more broadly, there's no practical problem with getting warrants for Location History because the technology doesn't exist anymore, and probable cause was not challenged back when there was.  In any event, what matters going forward is all the other online records that exist online: IP logins, etc. (See my book for some of the other kinds of records that are important in investigations.) Those are records that lower courts have held don't require warrants, and it would be a massive shift in practice if the Court ruled on the search issue in ways that implicated those different records. I was surprised the government didn't flag that; that's what matters practically speaking. Anyway, maybe that counsels in favor of just assuming a search here, or maybe the Court will get into that. Stay tuned.

(4) There was some discussion of a bunch of the side issues: Do Terms of Service matter? Does privacy legislation matter? Can we recognize a mosaic theory? These are each massive questions on which lower courts are split. Although I think there are correct answers to each of the three questions— Full disclosure, I have articles on each of these topics arguing that the answers are, respectively, no, no, and no—I am not sure that the Court will get into them.

(5) Justice Alito expressed some frustration that the Court had granted cert to render what amounted to an advisory opinion, both because the good faith exception obviously applies and because Google no longer stores these records. Justice Alito suggested that he might rule for the government on the good faith exception even though the Court denied cert on that question presented. He also hinted that perhaps it was the minimum of four Justices among his colleagues who voted to grant in the case. Justice Sotomayor weighed in that guidance in this area was important. So presumably Justice Sotomayor voted to grant cert in the case, and Justice Alito did not.

(6) There was some discussion of the Stored Communications Act and how it applies.  It wasn't a particularly strong discussion, I thought; it's a complicated question, and this was no context in which to delve into the glorious statutory details.  I don't think the statute is relevant to the Fourth Amendment issue, for all the reasons I explained here. But if the Court does weigh in on the SCA, it might surprisingly lead to an important SCA precedent, albeit on a question not really briefed.

As always, stay tuned.

The post A Few Thoughts on the <i>Chatrie</i> Oral Argument appeared first on Reason.com.

Today, the Supreme Court issued a very unusual order in a very unusual case.

In late November, a three-judge panel found that Texas's redistricting plan was motivated by race. Judge Jeffrey Brown, a Trump appointee in Galveston, joined (and likely wrote) the majority opinion. Judge Jerry Smith, a Reagan appointee in Houston, wrote a blistering dissent. It began:

"Fasten your seatbelts. It's going to be a bumpy night!"

Indeed, this night would be very bumpy.

Texas Solicitor General Will Peterson sought an emergency stay of the preliminary injunction with the Supreme Court.

On December 4, the Supreme Court granted an emergency stay by a 6-3 vote. There were two paragraphs of substantive analysis. The second paragraph focused on the timing, as the District Court issued its order after voting had already begun. The first paragraph offered two reasons why "Texas is likely to succeed on the merits of its claim that the District Court committed at least two serious errors." First, "the District Court failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature." And second, "the District Court failed to draw a dispositive or near-dispositive adverse inference against respondents even though they did not produce a viable alternative map that met the State's avowedly partisan goals." The Supreme Court distilled Judge Smith's detailed dissent to a few words.

This stay order allowed the maps to go into effect for the 2026 midterm elections. But it did not end the case. Texas still had to challenge the preliminary injunction in the normal course.

On January 13, the Texas Solicitor General filed what is known as a jurisdictional statement. Unlike a usual discretionary case, which involves a petition for a writ of certiorari, Congress designated appeals from three-judge panels in redistricting cases as "mandatory" jurisdiction. The Appellants (not Petitioners) asked the Supreme Court to note "probable jurisdiction" in the case. The Appellees asked the Supreme Court instead to affirm.

Texas did not ask the Supreme Court to summarily reverse the case. Instead, the state wanted the Court to hear oral argument to clarify the Alexander issue:

Plaintiffs alternatively ask this Court to vacate the preliminary injunction (presumably without opinion), remand, and delay review until an appeal following final judgment. See, e.g., Brooks Mot. 37; Gonzales Mot. 35. Although the district court's errors are straightforward and may well warrant summary reversal, this Court should provide guidance for the district court in this case and future cases. The standard for issuance of a preliminary injunction in redistricting litigation is an important issue, and as this case illustrates, the erroneous grant of a preliminary injunction can create electoral chaos and require expedited action. To avoid such disruption in future cases, this Court should squarely hold that Alexander's alternative-map requirement and the presumption of legislative good faith apply with equal force at the preliminary injunction stage. And unless they are corrected by this Court, the additional errors discussed above may well recur at trial, leading to reversal and a waste of both judicial and party resources.

But the Supreme Court took a difference path. Today the Court issued an order in Abbott v. League of United Latin American Citizens (25-845):

For the reasons set forth in Abbott v. League of United Latin American Citizens, 607 U. S. ___ (2025) [25A608], we reverse the District Court's judgment. Justice Sotomayor, Justice Kagan, and Justice Jackson dissent from the Court's summary reversal.

Do you follow? The Supreme Court reversed the District Court's preliminary injunction in light of the emergency docket order staying the District Court's preliminary injunction. It is a bit recursive, but it makes sense. Again, Lulac is a mandatory jurisdiction case, not a discretionary certiorari case. I presume that the decision to summarily reverse required a threshold finding of probable jurisdiction, but the Court does not say so expressly.

I can't recall any instance where the Court summarily reversed in a mandatory jurisdiction case. It is common enough for summary affirmances. Bluman v. FEC (2012) was one such recent case. In my article on bilateral judicial reform, I proposed that all mandatory cases should be submitted for oral argument. At the time, I was responding to the Court issuing a summary affirmance in a mandatory jurisdiction case. The thought never crossed my mind that the Court would summarily reverse in a mandatory jurisdiction case. And I could have never fathomed the Court would summarily reverse in a mandatory jurisdiction case based on an emergency docket order. Yet, here we are.

Lulac was distributed for the conference on April 24, and decided on April 27. This does not seem to have been a hard one for the Court. They didn't want to decide the tough merits issue so just got rid of it. Justices Sotomayor, Kagan, and Jackson didn't even bother writing a dissent.

Just last week, the Supreme Court GVR'd a case based on an unargued per curiam decision. Now, the Supreme Court is summarily reversing a district court's preliminary injunction based on an emergency docket ruling that stayed the district court's preliminary injunction. It would have been impossible for the district court to have even considered that ruling when issuing the PI, as it did not exist yet.

Usually, a summary reversal is reserved for the rare cases where the lower court clearly violated a precedent and there is no purpose to hold more proceedings. But here, the district court is summarily reversed for not anticipating what the Supreme Court would later do to reverse that same district court. This is not like Judge Murphy and his colleagues who are reversed twice in the same case, consecutively. Here, Judge Brown was reversed twice, having only issued one opinion.

Going forward, this case is not yet over. There was only a preliminary injunction issued. In theory at least, the case can go through discovery, summary judgment, and perhaps trial. But what's the point? The Supreme Court has spoken twice. Does anyone think the outcome would be any different after discovery? Moreover, by the time this case actually gets to a final judgment, 2030 will be around the corner, and there will be new maps. The courts need to get out of the business of reviewing legislative maps. Let Texas be Texas and let Virginia be Virginia. The chips will fall where they may.

What comes on Wednesday? Maybe the Court was clearing the brush in advance of Callais.

The post SCOTUS Summarily Reverses Three-Judge Panel In Mandatory Jurisdiction Case Based On Earlier Shadow Docket Ruling In Same Case appeared first on Reason.com.

Harvard magazine reports on recent comments by retired Supreme Court Justice Stephen Breyer on the "shadow docket." Although Justice Breyer would likely vote with the more liberal justices on many interim orders, he does not seem to share the concerns of Court commentators about how the Court has been handling things. From the story:

"Should we be worried about the Court's reliance on the shadow docket?" West asked Breyer, noting that many audience members had submitted questions about it.

No, was Breyer's short answer. "Every court has what you're saying is a shadow docket, which we call an emergency docket," he said, explaining that throughout most of the Supreme Court's history the docket had been used primarily to issue stays of execution in death penalty cases. "Or sometimes," he added, there would be a "very important case about an election or an election rule, and we might issue the stay."

Tracing the increasing use of the shadow docket in part to the rash of legal challenges that sprang up in the wake of vaccine mandates and other restrictions during the COVID-19 pandemic, Breyer—who now serves as Byrne professor of administrative law at Harvard Law School and as a visiting judge for the First Circuit Court of Appeals—rejected the notion that "there's some kind of plot involved within the Court to get this or that decided."

Instead, he argued, the nature of cases reaching the court on an emergency basis has changed: rather than death penalty and election matters, many cases more often involve constitutional disputes about "the nature of the constitutional relationship" between Congress and the president and the separation of powers."

"So it's hardly surprising to me, where you have a government that wants to bring those [issues] up, that you have more cases on the emergency docket," Breyer said.

Former Judge Michael McConnell  does not share Justice Breyer's judicial philosophy, but has a similar take on whether the increasing use of the "shadow docket" should raise alarms. Writing in the Washington Post, he notes that this is an understandable and inevitable response to the increasing reliance upon aggressive assertions of executive power and resulting litigation. He writes:

Many shadow docket decisions are subject to legitimate criticism, but the wholesale condemnation of the practice is misguided. Such cases are driven by the practical reality that it takes months if not years for a case to wend its way through the judiciary. Whether a policy is implemented while the case is litigated is often the whole ballgame. By the time it gets to the Supreme Court, the harm is already done. . . .

The cases are hard because, very often, the harm is irreparable on both sides. . . .  When a president is allowed to implement a new policy without authority from Congress — say, on tariffs or vaccines — it's often impossible to unring the bell. But if the president is forbidden from implementing a new policy where he genuinely has authority, the will of the voters can be thwarted for years.

The best the courts can do is to make an educated guess about the ultimate outcome on the legal merits and try to minimize serious, irreversible consequences. In a hierarchical system like our judiciary, it makes sense for the final decision-maker to become involved in a case when an interim order effectively resolves the dispute. I have little doubt that when a Democratic president is again elected, and district judges issue preliminary injunctions against controversial initiatives, many of today's critics will want the high court to intervene. . . .

Supreme Court decisions are often controversial and sometimes wrong. But the focus should be on the individual cases — the court's judgment on the probability of success on the merits and on which side stands to suffer the most serious and irreparable damage from an incorrect decision. That the court is forced by events to act quickly, and sometimes disagrees with lower court judges, is an inevitable result of the controversial use of executive power. The notion that this is an underhanded scheme to benefit one president is overly cynical. The practice began under Obama, has accelerated with each succeeding presidency and will continue when Trump is long gone.

To fully catch-up on worthwhile "shadow docket" commentary, I also recommend this NYT interview with Will Baude.

As before, you can find my prior posts on this subject here.

The post Justice Breyer Says Not to Worry about the Shadow Docket appeared first on Reason.com.

This bill would direct the Judicial Branch to review decades of criminal docket files—much of this work by hand—to identify those that are to be removed from the public record. The sealing of these records would occur without regard for whether the subjects of the files have requested that they be sealed, whether victims have objected, or whether a compelling public interest exists in the records remaining accessible.

There are several significant problems with the legislation. First, as drafted, L.D. 1911 would mandate the sealing of records for Class D domestic violence assault—a result that is plainly contrary to the public interest. Second, a ruling by the U.S. Court of Appeals for the First Circuit strongly suggests that categorically sealing criminal records without conducting a case-by-case review of the circumstances violates the First Amendment.

Third, this legislation would commit the State to hiring seven permanent employees to conduct the work of sealing records. Only a fraction of this cost has been appropriated. This is a significant on-going expense that could be avoided by allowing interested persons to request that their records be sealed, rather that requiring the Judicial Branch to seal all records eligible records as a matter of course.

L.D. 1911 would direct the Judicial Branch generally to seal records of misdemeanor convictions— designated in Maine law as Class D and Class E crimes—five years after the date of conviction. The bill sets forth a list of exceptions in the form of specific misdemeanor offenses, the records of which are expressly ineligible to be sealed. These include assault (17-A M.R.S. §207), stalking (17-A M.R.S. §210), misdemeanor sex crimes (17-A M.R.S. §§251-285), criminal operating under the influence (29-A M.R.S. §2411) and many others. Omitted from this list of exemptions, however, is the Class D crime of domestic violence assault (17-A M.R.S. §207-A). While this was apparently an oversight, I cannot endorse legislation that would conceal from public view criminal records of intimate partner violence.

I also share the concerns expressed by the Maine Press Association and others that automatically sealing criminal records unduly burdens the First Amendment. A criminal conviction is the culmination of work by all three branches of government. The Legislature has enacted a statute prohibiting certain conduct, the Executive has prosecuted a violation of the statute, and the Judiciary has entered judgment. This process should be transparent, and records documenting this work should remain available and subject to public scrutiny except where there a compelling public interest exists to justify secrecy, as is true, for example, for juvenile cases. See, Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir. 1989). It is difficult to see how L.D. 1911 could withstand constitutional review in federal court.

Finally, L.D. 1911 would require the Judicial Branch to review every criminal docket by hand to determine whether to seal the record. Maine law already permits a person to file a post judgment motion to seal records of certain Class E crimes. See, 15 M.R.S. Ch. 310-A. However, this bill directs the Judicial Branch to seal records categorically, which would require seven new employees, including two judges, at a cost of over $1 million annually. These new positions received funding only for the last three months of the current biennium, but would become part of the baseline budget inherited by the next Legislature. Our criminal justice system has many pressing needs, and I question whether the work required by this bill would burden an already overworked Judiciary and detract from efforts to protect public safety….

The precedents on whether and when the First Amendment right of access to court records precludes expungement statutes are complicated. See, e.g., Pokaski; Commonwealth v. Pon (Mass. 2014); State v. Rogan (Haw. 2025). But Pokaski, which is a federal appellate decision in the circuit that includes Maine, does seem to preclude a lot as broad as this one.

The post Maine Governor Vetoes Broad Criminal Records Sealing Bill appeared first on Reason.com.

[P]laintiff's motion for an order enjoining defendant from "any further social media posts naming, inferring or addressing Plaintiff or Plaintiff's employees in any way or posts related to Plaintiff" and ordering her to "delete any and all posts on social media naming, inferring or addressing Plaintiff or Plaintiff's employees in any way" is denied.

"Prior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity." Accordingly, "a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition and, to do so, must show that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public, annoyance or unrest."

Plaintiff has not carried its burden here. While the law permits "the restraint of speech that communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," the allegedly libelous speech plaintiff seeks to restrain "does not meet this exacting constitutional standard."

Looks correct to me; though most courts generally allow injunctions barring repetition of material found defamatory at trial, pretrial anti-libel injunctions are generally seen as unconstitutional prior restraints (see my Anti-Libel Injunctions article). The court cites Brummer v. Wey (N.Y. App. Div. 2018) for these propositions; for more on that case (in which I filed an amicus brief, on behalf of Profs. Steve Shiffrin and Martin Redish and myself), see this post.

Back, to Rodney's Comedy Club, here is an excerpt from plaintiff's argument in favor of an injunction; remember that the substantive defamation claim is still pending and that this decision just dealt with the requested injunction, without determining whether the statements were true or false:

Plaintiff has been harassed and stalked Respondent for months beginning in 2025. Sometime over a year ago, Defendant auditioned at Rodney's Comedy Club and was not passed based on her extremely poor performance. Following several months, beginning in 2025, Defendant began posting defamatory content against Plaintiff….

Most recently this past Saturday, February 7, 2026, Defendant Chanel Omari wrote "Rodney's Comedy Club, run by Mark Lawrence, is a place where female comedians have been bullied, harassed and mistreated by him and his staff (Reggie, Crystal, Andrew, Allen and Mark). Please be cautious about performing there. They are currently. Facing legal action for defamation and abuse – sexual, physical, emotional and mental. No one should be subjected to this kind of behavior. Every comedian deserves a safe space to perform without fear, and its time these abusers are held accountable."

She further stated "your staff has been fired from New York comedy clubs and other clubs for the same reason. Mark you're an unwell 50 plus owner just as creepy as Eddyand all these other owners along with your staff Reggie and Andrew who have a predator and groomer on female comedians and customers before as well as myself."

Additionally Defendant stated "you take peoples money and you're nasty to them and you abuse them."

She further stated that "you held everything against me which is a form of abuse and Reggie sleeps with other women there to tell them he will get them stage time and then doesn't give it to them and then you're nasty towards them."

Moreover she wrote "They hold their power against you and don't book you whether they try to have sex with you kiss you or whatnot and nothing helps you're right they don't care."

Later that same day Chanel Omari posted on her stories "To all my coconaitors and fellow comedians avoid Rodney's Comedy Club with a ten foot poll. I will be be discussing my experience with them. They have all been abusive – from staff to owner. They are unprofessional and discriminate against Jews and women in general. Very misogynistic."

She further stated "…their audition process is rigged because they only pass girls they want to sleep with and the ones they take advantage of they hold their power against them. I will not be performing at that club and I advise others not to."

February 11, 2026, Defendant Chanel Omari posted on Instagram "Mark Lawrence the owner of Rodney's Comedy Club and his staff and management are all abusers and have abused me in many ways than one in every category you can imagine, he tries to attack me."

She also stated "Rodney's Comedy Club Owner Mark Lawrence is abusive in every type of way. Doesn't know how to run a comedy club professionally women and their manager sexually abused me…they are antisemitic and racist."

She later stated "I stayed quiet for a long time because I was scared. The owner Mark Lawrence, of Rodney's and his staff – including Andrew (preys on younger women), Reggie (the booker-sexually and emotionally abused women) Crystal (bar tender-biggest bully and abuser) after people like me have been kind to me…I experienced sexual misconduct, emotional and mental abuse, and retaliation for setting boundaries and telling the truth…I was told I wasn't good enough despite working as a comedian for over a decade, while others were favored through manipulation and power dynamics. When I spoke out , I lost spots and opportunities and was labeled "the problem."

February 13, 2026 Defendant stated ""Andrew from Rodney's has raped and sexually assaulted multiple women and so has Reggie from Rodney's."

I reached out to Rodney's, and got a prompt response; Rodney's denies Omari's factual allegations, expresses confidence that they will prevail on the merits, and adds this about the injunction decision:

[I]n New York, obtaining a Temporary Restraining Order (TRO) to restrict speech based on defamation is extremely difficult due to First Amendment protections against "prior restraint." Courts generally prohibit pre-publication censorship, prioritizing free speech over potential reputational damage, though injunctive relief may be possible after a final adjudication of defamation….

I am aware that TRO's are presumptively unconstitutional, however it seems ridiculous to me that in NYC and Federal Courts, they can rule that speech was defamation, after a trial and award damages, when at that point, the Defendant could have spent years harming the Plaintiff …. Monetary damages after the damage is done, is no remedy at all.

David R. Ehrlich (Stagg Wabnik Law Group LLP) represents Omari.

The post Comedy Club Can't Get Injunction Blocking Claims of Sexual Assault, Racism, Anti-Semitism, and Sexism appeared first on Reason.com.

From Judge Arun Subramanian (S.D.N.Y.) Wednesday in Those Characters from Cleveland, LLC v. Schedule A Defendants:

[P]laintiff has failed to sufficiently address the potential fair use and First Amendment claims related to the products in question that use "Don't Care Bears" (or a variation) along with marijuana imagery. Plaintiff relies heavily on the Supreme Court's decision in Jack Daniel's Props., Inc. v. VIP Prods. LLC (2023). There, the Supreme Court rejected a First Amendment defense to a dog toy that had the same shape and design as a bottle of Jack Daniel's whiskey. But key to the Court's holding was the fact that "the accused infringer ha[d] used a trademark to designate the source of its own goods—in other words, ha[d] used a trademark as a trademark." The Court made clear that its opinion was "narrow" and its infringement holding only covered cases "when the challenged use of a mark is as a mark."

That's not the case here. The "Don't Care Bears" defendants are not using the Care Bears marks as marks; unlike in Jack Daniels, for the most part, the products don't look like the products that plaintiff sells. They don't even use bears resembling Care Bears—some have teddy bears with bows, others have bears a-la the main character of Corduroy, still others have non-Care-Bears-looking bears that appear to have eaten too many Cheetos. For these, defendants seem to just be using "Care" and "Bear" as part of a phrase. So Jack Daniels is inapposite.

The other cases cited by plaintiff fare no better. Plaintiff first cites Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc. (2d Cir. 1989), for the proposition that "merely using someone else['s] trademark to promote your message is not parody." True enough, but that doesn't prove that using someone else's trademark cannot be parody—or even that it isn't in this case. Plaintiff next cites Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc. (9th Cir. 1997), and Louis Vuitton Malletier S.A. v. My Other Bag, Inc. (S.D.N.Y. 2016), aff'd (2d Cir. 2017). Those cases stand for the proposition that parody must target the mark in some way, not just society as a whole. (A parody can extend beyond the mark in question, so long as it does target the mark in some way.)

Plaintiff says in conclusory fashion (with no citation to any evidence) that defendants are using plaintiff's marks solely as "cultural commentary." But the Court cannot conclude on the record before it that there is no commentary on plaintiff's marks at all; the products could be seen as parodying the children's cartoon characters as marijuana-smoking bears. After all, plaintiff itself points out how "marijuana-related imagery" contrasts with the "child focused" characters that epitomize "friendship, caring, and positivity." the trademark infringement claims fail as well.

To be clear, the Court does not conclude definitively whether defendants would prevail on a fair use or First Amendment defense across the board. On a fuller record, plaintiff may well be correct that it is entitled to relief on its trademark infringement claims. But it has not met its burden for preliminary relief.

Finally, the Court addresses the copyright infringement claims. In the Court's prior order, the Court noted that plaintiff had failed to rebut the argument that the products could have [been] subject to a prior authorized sale—which would mean any subsequent sale would not need any authorization. Plaintiff devotes only a few sentences to trying to rebut this potential defense, most of which are conclusory attorney argument devoid of any citation.

The only sentence with any alleged link to any evidence says that "Plaintiff has repeatedly reviewed its evidence and none of the products shown are authorized; none originate from Plaintiff." But the evidence it cites—several paragraphs in a declaration—does not support that point. Most of the cited paragraphs are on irrelevant points. The closest the declaration gets to rebutting the defense is saying that "[n]one of the Defendants shown in Exhibit 3 has authorization or license to use the CARE BEARS IP for any purpose." But even assuming the single conclusory statement in the declaration was enough to carry plaintiff's evidentiary burden, the Court noted in the prior order that no authorization would be required if there was a prior sale, and plaintiff has put forward absolutely no evidence explaining why the Court could conclude on the current record that there was no prior sale.

Plaintiff must show why it can conclude from the website that the products cannot be resales. For example, if there is evidence that a particular product was never sold with the copyright owner's permission in any country, then there might be grounds to conclude that it cannot be legitimate. But such an argument must be individualized and tie to specific products, not the blanket arguments that plaintiff has made.

Plaintiff may reapply for a temporary restraining order within 14 days. On any reapplication, plaintiff should both narrow its request to products that it can clearly show are infringing and make specific arguments as to each product listed, rather than summary arguments that do not directly reference any individual product. It should also ensure that any asserted copyrights and trademarks belong to it, rather than third parties not before the Court.

In narrowing its request, plaintiff should not include the products in its current application where there is only a trademark claim but no copyright claim. These products include the phrase "Don't Care Bear" with a bear that does not look like a Care Bear. The Court concludes that plaintiff has not shown that it would likely succeed on its claim that a consumer would be confused since these products clearly use a bear that is not a Care Bear. Plaintiff should also consider the merits of each other claim by itself—focusing on claims strong enough to justify ex parte relief and addressing the merits of each individually….

The Court's repeated rejection of plaintiff's applications is not intended to be punitive. The Court realizes that many courts simply rubber stamp these applications to get them off their docket. But the relief plaintiff seeks is significant and ex parte. Under these circumstances, it's important to enforce the rules and standards that apply to the granting of this kind of extraordinary relief….

For detailed criticism of these "Schedule A Defendants" lawsuits, which have become very common, see Eric Goldman's A SAD Scheme of Abuse Intellectual Property Litigation and also the Zorro opinion.

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As I explained in my previous post, I recently tasked AI with comparing two transcripts of the 1807 treason trial of Aaron Burr.  My ultimate question is, what do I do with the document that resulted?  And that breaks down into two sub-parts.  First, do I publish this, either just online informally or with some kind of journal?  And second, how do I describe what my relationship is to it?  Am I a co-author?  The author?  Just a prompter?

Let me start by explaining how the memo was created, and then turn to the questions I have.

I. How the AI Memo Was Created

I need to start with what I did to help create the memo, as that might be relevant to my questions.  The transcripts that needed to be compared were .pdfs of two-volume books from 1807 and 1808 that go for hundreds of pages, although the only parts I cared about were the parts on the privilege against self-incrimination. I used Claude (Opus 4.6 extended),  and I tasked it with comparing the discussions of the legal arguments about the privilege against self-incriminagtion to get a better sense of whether my 2021 article on those arguments based on the Robertson transcript was accurate in light of the Carpenter transcript.

To say that "I tasked Claude" covers up a lot of detail, though.  I went through around 30 rounds of prompting with Claude, over the course of a few hours.  As I went along, I learned about what Claude could and couldn't do and pushed it to do a better job when it was resistant to do more.  For example, when I first asked Claude to compare the documents, it declined, saying it was just too big a task to take the two long pdfs, to make them readable, and then to compare them.  So I started with an easier task: Take my 2021 article, read it, and understand what it claims about the Burr trial, and then read the Carpenter transcript and write an article presenting a comparison.   The first draft reply was a start, and made me think that the enterprise might be ultimately useful.  But it left a lot to be desired.

Over time, I came to realize that there was an art to getting Claude to make the comparisons I needed.  Ultimately it agreed to do a direct comparison of the two transcripts based on the claims I had made in my 2021 article.  And I quickly realized that the comparison really needed lots of direct quotes and page references for everything, so that took a lot of extra time: Among other things, Claude had surprising difficulty with page numbers, in part because one of the two .pdfs had two volumes back to back and Claude could not figure out the pagination.  I had to spot check, and I kept finding errors, which Claude had to keep correcting.

A big breakthrough came when I realized through trial and error that Claude could do comparison screenshots.  That is, instead of just telling me what the two transcripts said, Claude could take screenshots of the relevant discussions and show them side-by-side.  That way I could be more confident that I was getting a real comparison.  Even then, the screenshots needed a lot of correction: Claude started off giving me only about 1/3 of the comparisons correctly, and I had to keep telling it to go back and make sure it was screenshotting the exactly equivalent sections.

As I neared the end, I also added more tasks.  For example, I asked Claude to read the Carpenter transcript and tell me if my 2021 article had accurately summarized the arguments, as well as whether there were any parts of the argument from the Robertson transcript I had missed.  I also asked Claude to say if there was any legal source Robertson had reported than Carpenter hadn't and vice versa, and any legal argument that one had reported that the other habn't.

After about 30 rounds of prompting, I ended up with a 22-page comparison memo.   A typical page of the memo looks like this:

The good news, at least accordiing to Claude, is that all of the substantive points matched really nicely.  The variations between the Carpenter transcript are apparently very minor, the kinds of things you might expect with two independent human beings trying to write down hours of court proceedings and hearing some small things differently. The parts I cared about were a match.

II.  Should I Publish This, At Least in Some Way?

This brings me finally to the big queston I have, what do I do with this 22-page AI-generated memo?   On one hand, if you're interested in my 2021 article, I think the AI comparison is of scholarly interest.  The comparison is pretty noteworthy, at least for the small number of nerds who care about the substantive topic. On the other hand, the AI-generated memo doesn't slot into any traditional understandings I have of either scholarship or non-scholarship.   So I don't know what to do next.

My uncertainty breaks down into two questions.  First, do I publish this?  And second, if I publish it in some sort of way, what should I state as my relationship to it?  Let me explain my thinking as to both questions.

First, on the question of whether to publish this, I am conflicted.

Part of me thinks this memo should be only for my internal use.  At some point, I should just do the work of reading the Robertson transcript again and reading the Carpenter transcript for the first time, and I should write up a comparison myself.  Perhaps the memo should just be a helpful guide as to what I might expect to find, a sort of map that points the way and makes the task a bit quicker. This is akin to how I tend to use research assistants: Write me a background memo for me, which then gives me an helpful idea of what I should look for when I do the work myself.

Alternatively, I could post the AI-generated memo on SSRN.com, where a lot of draft articles are posted, but not try to publish it with any actual journal.  Once it is up at SSRN.com, anyone can find it with a Google search. From a scholarly perspective, that is the important part; that way, people interested in the topic can see the comparison.  But there's no need to actually publish the essay in a journal.  It's not even my work product, but Claude's work product, so there's not much point in getting it formally published.

Or maybe I could (at least try to) publish it?  It seems to me it's an academically interesting document.  Maybe there's a journal that would be interested in publishing it, and if so, why not? That would give the memo a more permanent home, and it might draw more attention to my 2021 article and the issues I was trying to address.

III. What is My Relationship to the Memo? Am I The Author? An Author? Neither?

Finally, there's the set of questions about authorship.  If I just keep this as an internal memo, granted, I don't have to worry about that.  But if I post it on SSRN, or (certainly) if I try to publish it, I do.  Am I an author?  A co-author?  A prompter?  What am I?

One thing that seems clear to me is that I should not publish it the memo as an article single-authored by me.  Perhaps I have an overly romantic notion of authorship, but I feel like authorship implies the moment of sitting in front of a blank page and putting my words on it. There has to be an authenticity behind that, and prompting Claude to write something (even many times) doesn't feel like it makes me the author.  Even if I checked it, I didn't write it.

Another possibility is that maybe I am a co-author.  Maybe my direction of the project, and my repeated prompting, made me a co-author along with Mr. Claude Opus, the actual writer. That seems better than saying I am the author, as at least I am trying to reveal how the memo came to be.  Although a co-authorship approach is a little weird: It's not like Claude and I are two scholars who worked on the article together.  I don't even know if SSRN would allow me to state "Claude Opus" as a co-author. So I'm not sure that fits.

A third possibility is that roles like mine  are something new, and we need to come up with a new vocabulary for it.  Maybe I didn't author the article, but rather I am the prompter of the article.  Maybe I didn't write the article, but rather directed it.   Perhaps, in my role as prompter/director, I shoould write an introduction that explains my goals and how the AI-generated memo came to be.  Basically, I should summarize what I have written in these blog posts so far.  And then I attach the AI-generated memo, for which I take no authorship credit.  That way, the reader knows who did what and where the memo came from, as well as its limits.  There isn't a role of prompter-director now, but maybe there should be?

Right now, at least, my instinct is that I first need to assess how much time it would take to do this myself.  If it won't take too much time, and if I have the time, I should just use the AI-generated memo for my own internal use as a guide for when I do the project the old-fashioned way.  What sees the light of day will be my own human-reasoned and human-written article instead.  Alternatively, if I think the time commitment is too much given other obligations, I think I'll try to take the prompter-director role:  I will write the intro and attach the memo, posting them together on SSRN, with the front page saying "introduction and prompting by" me but the article clearly labeled as written by AI.

Those are my instincts, at least. But I don't know.  What are your thoughts?

The post What To Do With AI-Generated Legal Scholarship?: Part 2 appeared first on Reason.com.

The main criterion in a democratic system is not whether a given prosecution is common, but whether in this particular case fairly evaluated, the facts could be viewed by a reasonable jury as establishing the prospective defendant's guilt beyond a reasonable doubt. For one thing, adopting the "common prosecution" criterion leaves open many of the problems it's supposed to solve. How "common" is common enough to be confident the case isn't merely political? Will that get decided by the line prosecutors — careerists (or, less generously, bureaucrats) or their more accountable (but also more political) superiors?

More importantly, to focus on commonality system-wide is to risk losing focus on why we have a criminal justice system to begin with, namely, to hold wrongdoers to account and give justice to their victims. Contrary to some of my liberal and libertarian friends, I do not see "the system" as being perpetually on trial. Its balance and fair-mindedness are, to be sure, "on trial" before the legislature, which properly has the power to address systemic problems, such as they may appear to be. But they are not on trial in deciding whether Mr. Smith or Mr. Jones from the SPLC fleeced any given contributor by giving him a song-and-dance rendition of what his money would be used for.

The flaw in Prof. Volokh's second criterion (whether the SPLC's fundraising actually was fraudulent) is that this is simply a question of fact for the jury to decide. It goes to the strength of the case, not its legitimacy….

The SPLC indictment does raise non-trivial questions about weaponization of law and the boundaries of prosecutorial discretion, but in my view, having been a federal prosecutor under administrations of both parties, falls inside those boundaries.

As I've mentioned before, Bill and his coauthor Paul Mirengoff are my go-to people for hardheaded, pragmatic, but principled conservative views. They tend to be somewhat more conservative than I am, but I always find their work interesting (and well-written).

The post Bill Otis (Ringside at the Reckoning) on the SPLC Indictment appeared first on Reason.com.

I have a question about how to present the results of legal scholarship generated in part with AI.  I pose it as "an April 2026 question" because what AI can do is changing quickly.  I would guess that how we think about AI assistance in legal scholarship will change over time, too. But I wanted to explain why I ask, and then open it up for feedback. I'm very interested in your thoughts.

I'm going to present the question in two posts.  In this post, I'm going to explain why I turned to AI for help with a scholarly problem I had.  In my next post, I will explain what AI was able to do and present my question about what I should do with what AI produced.

Here's the context.  A few years ago, I wrote a law review article, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021).  The article sought to understand the original public meaning of the Fifth Amendment privilege against self-incrimination and its possible application to unlocking cell phones.  It was based on a fascinating historical coincidence: In 1807, in the treason trial of Aaron Burr, there had been an extensive oral argument and then subsequent opinion by Chief Justice Marshall on how the privilege applied to obtaining testimony from Burr's private secretary about an letter in cipher that Burr was thought to have sent.

I wrote my 2021 article based in large part on a transcript of the proceedings made in shorthand by a lawyer in the courtroom.  The lawyer, Mr. Robertson, had written everything down: Every argument, every legal source, even all the pincites, in what he claimed was a verbatim reconstruction of the proceedings.  The idea of the article was that, given the prominence and experience of the lawyers in the case, the details of the 1807 arguments would likely reflect the Founding-era understanding of the privilege. So my article presented a very detailed reconstruction of what the lawyers relied on, what sources they looked to, and what arguments they made, all based on the Robertson transcript.

That article came out in 2021, and I moved on to other projects.

Just last year, however, I became aware that there is a second and independent transcript. Another lawyer, one Mr. Carpenter, claimed to have done the exact same thing that Robertson claimed to have done.  Like Robertson, Carpenter claimed to have written down the whole trial in shorthand, including the legal sources and pincites.  Both Carpenter and Robertson had published their transcripts as books shortly after the trial ended.  The Robertson transcript is much better known.  It is the one referenced in histories of the Burr case, and it was the one that was cited as the report of the trial in 19th Century caselaw.  Those references had pointed me to the Robertson transcript, and I had studied it in great detail.  I hadn't known the Carpenter transcript even existed.

This created a problem.  The premise of my 2021 article is that the Robertson transcript accurately presented the arguments made in the Burr case about the privilege against self-incrimination. But a quick skim of a few spots in the Carpenter transcript suggested that they were not identical.  There were things that appeared in one or not the other, or arguments presented somewhat differently, or parts summarized in different ways.  If Robertson and Carpenter independently reported the same things, I could be pretty confident that it happened that way.  But what if they reported key moments and arguments differently?   In that case, I couldn't be confident that my 2021 reconstruction of the privilege arguments in the 1807 Burr trial was accurate.

My scholarly obligation, it seemed to me, was to conduct some sort of comparison of the two transcripts to alert readers to any meaningful discrepancies between them that might relate to my 2021 article. But this would also take a lot of time, as I would first have to go back and re-familiarize myself with the very long Robertson transcript, and then go through all of it and compare everything relevant from my 2021 article with the Carpenter transcript.  It's certainly doable, but also pretty time-consuming.  It's been on my list of scholarly things-to-do since last year.

And then in March 2026, I wondered: Hmmm, is this something that AI can do for me?  These days, AI is really good at going through large documents and summarizing them, comparing them, and the like.  And it just gets better and better as the weeks pass.  Maybe, instead of going through the two transcripts myself, I can save time by asking an AI service to go through the two transcripts and compare them.  Maybe AI can tell me quickly if there are substantive disparities between what Robertson says the lawyers argued and what Carpenter says the lawyers argued.

At least, I figured, it's worth a try.  In my next post, I'll say how it went, and ask what I should do with the document AI produced.

The post What Do You Do With AI-Generated Legal Scholarship?: An April 2026 Question appeared first on Reason.com.

On April 15, Justice Clarence Thomas delivered a lecture at the University of Texas at Austin in honor of the 250th Anniversary of the Declaration of Independence.

Here's a taste:

The second paragraph of the Declaration proclaims: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…."  Throughout my youth, these truths were articles of faith that were impervious to bigotry or discrimination. The American Heritage Dictionary of the English Language defines "self-evident" as "obviously true, and requiring no proof, argument or explanation."  Whether they had a divine source, or a worldly one, they were never questioned. They were the Holy Grail, the North Star, the rock – immovable and unquestioned.

Despite the multiplicity of laws and customs that reeked of bigotry, it was universally believed among those blacks with whom I lived and who had very little or no formal education, that "in God's eyes and under our Constitution we are equal."  This was also the case with my nuns, most of whom were Irish immigrants. At home, at school, and at Church, we were taught that we are inherently equal; that equality came from God; and that it could not be diminished by man. We were made in the image and likeness of God. That proposition was not debatable and was beyond the power of man to alter. Others, with power and animus, could treat us as unequal but they lacked the divine power to make us so.

Somehow, without formal education, the older people knew that these God-given or natural rights preceded and transcended governmental power or authority. When you lived in a segregated world with palpable discrimination and the governments nearest to you enforced laws and customs that promoted unequal treatment, it was obvious that you did not get your rights or your dignity from those governments, but from God. Though not a literate man, my grandfather often spoke of our rights and obligations coming from God, not from the architects of segregation and discrimination. Men were not angels. They were subject to the constraints of antecedent rights. And, we were not subject to them even as we were subjected to their whims. We knew that life, liberty, and property were sacrosanct. These truths were self-evident to the adults in our lives and were taught to us as undeniable truths. Those around us could endure with dignity the insults of segregation because they knew that, in God's eyes, they were equal.

All too often, there is an unfortunate tendency, when discussing the Declaration, to make these self-evident truths and first principles of government obscure. Intellectuals want you to believe that our founding principles are matters of esoteric philosophy or sophisticated debate. Even those who support them too often talk about them as if they were academic playthings. They overcomplicate them, take the spirit out of them, and discuss them in a manner that puts us to sleep.

Justice Thomas' speech has received significant attention, and stoked a fair amount of controversy, largely over Justice Thomas' criticism of progressivism. In the New York Times, prominent Supreme Court critic Jesse Wegman even suggested Justice Thomas should apologize for his remarks.

Were Justice Thomas' remarks really so outrageous? So readers can make up their own minds, here is a transcript, courtesy of Civitas Outlook, and the video is below.

The post Justice Clarence Thomas on the Declaration of Independence appeared first on Reason.com.

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The post Open Thread appeared first on Reason.com.

For the past two years, the Federalist Society has held its national lawyers convention at the Washington Hilton, better known as the Hinckley Hilton. This is the place where John Hinckley, Jr. shot President Reagan and Press Secretary James Brady in 1981. You may better know Brady as the namesake of the Brady Gun Control Act that was challenged in Printz v. United States. Randy and I feature a photograph of the hotel in our discussion of Printz.

In 2023, I bid farewell to the Mayflower, and in 2024, I wrote about the new experience at the Hilton. The experience was, on balance, negative. I am beyond grateful that the Convention will be returning to the Mayflower in 2026 (thanks Sheldon).

But having spent some time at the Hilton, I can see why it poses unique security threats. To start, it is a functional hotel. Even if there is a "hardened" event in the ballroom (located in the basement), there are still thousands of guests walking around inside and outside the building.

When I traveled to the convention last November, Vice President Vance was speaking at the 250th U.S. Marine Corps Birthday Ball. Because I was a hotel guest, I was able to clear the perimeter security. Later that evening, I decided to go to the gym, which was accessible through a different elevator. The gym was also in the basement. After I finished working out, just of curiosity, I walked towards the ballroom. By that point, the event was over, Vance had left, and the magnetometers were gone, but I was able to walk right to the the ballroom, even though access was still being restricted. The thought crossed my mind of how easy it would be to sneak into the venue.

There are many unknowns now.

President Trump is about to give remarks in the Brady press room.

Update: It appears the alleged shooter was a guest at the hotel. The video shows he was taken down near the Terrace Foyer on the Terrace Level. You can see from this map how close the Health Club was.

The post The Hinckley Hilton appeared first on Reason.com.

A short excerpt from Thursday's 76-page decision by Judge Jessica Clarke (S.D.N.Y.) in Doe v. Black (see also this article yesterday by Politico [Erica Orden]):

This case is an action under the New York City Victims of Gender-Motivated Violence Protection Law. Plaintiff Jane Doe alleges that Defendant Leon Black brutally raped and assaulted her in New York City in 2002, when she was only sixteen years old. She claims that prior to this assault, she was abused and groomed by Jeffrey Epstein ("Epstein") and Ghislane Maxwell ("Maxwell")—who then trafficked her to other men, including Defendant.

Although the parties have exchanged almost no discovery, Defendant brings a Motion for Case-Terminating Sanctions based on lies, fraud, and spoliated evidence that he contends render this case rotten to the core. Ultimately, the Court finds that both Plaintiff's former attorney Jeanne Christensen ("Ms. Christensen"), on behalf of Wigdor LLP ("Wigdor"), and Plaintiff Jane Doe have engaged in serious, sanctionable misconduct in this case. However, taking seriously its obligation to remedy prejudice with lesser sanctions where available, the Court finds that this misconduct need not doom Plaintiff's claim.

The Court issues various factual and legal findings to support sanctions here. Plaintiff's former counsel—Ms. Christensen—lied repeatedly to the Court and to opposing counsel in this litigation about what was happening in a related action. Ms. Christensen also directed Plaintiff to destroy a relevant social media account that Plaintiff used to communicate publicly about her experiences as a purported Epstein victim. And, Plaintiff falsified sonogram images in her personal journals, which her First Amended Complaint relies on to support the allegations in this action.

In light of the serious and varied misconduct committed by both Plaintiff and her former counsel, the Court strongly considered granting the case-terminating sanctions Defendant requests in this matter. However, the Court ultimately concludes that lesser sanctions can address the misconduct. As such, the Court issues a number of sanctions against Plaintiff, Ms. Christensen, and Wigdor.

Ms. Christensen must file this Opinion and Order in any case in any federal court within the Second Circuit in which she is counsel of record, from the date of publication until one year from today. For a period of five years, Ms. Christensen must also share this Opinion and Order with any federal court within the Second Circuit where a sanctions motion has been filed against her, her employer, or her client, and she is counsel of record. Additionally, Ms. Christensen and Wigdor must pay Defendant's reasonable attorneys' fees and costs in bringing this Motion.

Plaintiff, meanwhile, is barred from using any of the personal journals in which the Court has found falsified sonograms in prosecuting this action. The Court will also instruct the jury that the Court found that portions of these journals were falsified by Plaintiff. Similarly, given the spoliation of Plaintiff's social media account, Defendant may present evidence about the account's deletion and advise the jury about its potential relevance. The Court will instruct the jury that it may consider the account and the circumstances under which it was destroyed.

{[But] Plaintiff and Wigdor's conduct, while extremely troubling, does not warrant the extreme measure of terminal sanctions. The lesser sanctions levied against Wigdor and Ms. Christensen, which include a significant monetary penalty and a requirement to notify future courts of this Opinion and Order, suffice to deter future misconduct. Ms. Christensen's lies were contained to relatively few filings and, to the Court's knowledge, she has not previously been sanctioned. Because these lies were quickly identified, they did not prejudice Defendant on the merits of this dispute. Furthermore, because the Court does not find that Ms. Christensen directed Plaintiff to delete her Twitter account with the intent to deprive Defendant of the evidence in litigation, terminal sanctions are not available to the Court under Rule 37(e). Plaintiff's conduct falsifying sonogram images can also be remedied by precluding that evidence at trial.

The misconduct found here also pertains almost exclusively to Plaintiff's alleged abuse by Epstein. Although Plaintiff's relationship with Epstein is certainly relevant for the reasons described herein, the crux of this action is whether Defendant Leon Black raped and assaulted Plaintiff. None of the lies and fabrications substantively bear on this central issue.}

With respect to anonymity and sealing, the Court denies Defendant's request to de-anonymize Plaintiff. Ultimately, the Court concludes that the relevant factors favor Plaintiff's continued anonymity. The Court does, however, unseal the filings related to this Motion, with redactions for information that would tend to reveal Plaintiff's identity or involve other narrow categories of sensitive information….

The post Judge Finds Epstein-Related Plaintiff Lies, Spoliation, and Lawyer Misconduct in Rape Lawsuit Against Investor Leon Black appeared first on Reason.com.

With the Supreme Court set to hear argument in the geofence warrant case, Chatrie v. United States, on Monday, I thought I would provide links to all my posts relating to the case and the issues over the years.  Here they are, in reverse chronological order:

1. The Difficulty of the Search Question: More Thoughts on Chatrie, April 24, 2026.

2. The Slowing of Fourth Amendment Law, and Now Advisory Opinions: A Comment on Chatrie v. United States, April 16, 2026.

3. A Narrow Resolution on Geofence Warrants?: A Thought on Chatrie, April 14, 2026.

4. My Amicus Brief in the Geofence Warrant Case, Chatrie v. United States, April 1, 2026.

5. The Carpenter Adjustment, March 1, 2026.

6. Final Version, Data Scanning and the Fourth Amendment, February 24, 2026.

7. The Fourth Circuit's Geofence Warrant Case Ends Not With a Bang But a Whisper, March 2, 2025.

8. Fourth Circuit Votes to Rehear Its Geofence Warrant Case, November 1, 2024.

9. The ACLU's Response to My Post on the Fifth Circuit's Smith Ruling—And My Reply to the ACLU, August 16, 2024.

10. The Fifth Circuit Shuts Down Geofence Warrants—and Maybe a Lot More, August 13, 2024.

11. Accessing Google Location History Records Is Not a Search — At Least When Limited — Fourth Circuit Rules, July 10, 2024.

12. Did Google Just Defeat Every Geofence Warrant?, December 12, 2023.

13. The First Geofence Warrant Case Reaches a Federal Court of Appeals, December 9, 2023.

14. The Fourth Amendment and Geofence Warrants: A Critical Look at United States v. Chatrie, March 11, 2022.

The post Links to My Posts on <i>Chatrie v. United States</i>, the Geofence Warrant Case appeared first on Reason.com.

Plaintiffs … bring this action arising from an early-education investment project in Shenyang, China, asserting claims under the Foreign Sovereign Immunities Act, the Alien Tort Statute, and the Torture Victim Protection Act. Plaintiffs filed an eight-page Complaint on the public docket. They concurrently moved to file a separate, unredacted Complaint—together with a voluminous set of exhibits—under seal….

Plaintiffs' Motion arises from concerns that the Complaint contains "sensitive information relating to personal safety, foreign-related legal procedures, and ongoing matters involving foreign government entities." Two flaws, however, pervade their request: the scope of information Plaintiffs have redacted far exceeds the narrow request they claim to advance, and the harms they invoke—threats from Defendants themselves—are harms that sealing cannot prevent….

The customary approach to protecting sensitive information in a complaint is for the plaintiff to file a single operative complaint on the public docket with targeted redactions, while submitting an unredacted version of that same complaint under seal for the Court's review…. [But plaintiffs] have filed on the public docket a skeletal eight-page pleading that is bereft of substantive allegations and instead points the reader to a separate document that exceeds 300 pages and was submitted under seal. Although Plaintiffs disclaim any intention "to seal the entire case," the practical effect of what they propose is indistinguishable from wholesale sealing of the operative Complaint.

A second difficulty also attends the Motion. The harms Plaintiffs invoke to justify sealing are, by their own account, harms threatened by Defendants and affiliated actors in Shenyang. {The Court does not discount the seriousness of those [concerns], particularly given the fact that Kelly Shofner's father was allegedly detained after this suit was filed.} But Defendants are the parties Plaintiffs have chosen to sue, and they will necessarily learn of the allegations against them as this litigation proceeds. A theory of sealing premised on shielding the contents of a pleading from the very parties entitled to answer it asks for a form of protection that sealing cannot provide….

{Some of the Shofners' asserted interests have independent footing [as a privacy matter]. Residential addresses pertaining to Plaintiffs and their minor child implicates ordinary privacy protections, and specific bank-transaction details implicate financial-privacy norms that this Court routinely credits. Those interests could support targeted redaction of the relevant items within a publicly filed complaint. But, once more, targeted redactions are not what Plaintiffs have proposed in their sealed Complaint.} …

The documents Plaintiffs seek to keep from public view are not discrete exhibits, a narrow set of paragraphs containing sensitive information, or peripheral filings. They instead constitute the operative pleading—the very document that invokes this Court's jurisdiction and defines the contours of the anticipated litigation. Plaintiffs' proposed substitute does not cure the problem. The eight-page shell on the public docket deprives the public of precisely what the presumption of access is meant to secure: the ability to understand the cause of action, the theory of liability, and the basis on which a court will eventually adjudicate the dispute….

Plaintiffs "voluntarily commenced a public proceeding … and invoked the jurisdiction of this Court to do so." As they explain, the information they seek to seal was "introduced for the purpose of establishing the factual basis for Plaintiffs' legal claims." The redacted information, therefore, is not merely relevant to the central claims in this litigation; it comprises the substance of those claims…. "The more relevant a pleading is to the central claims of the litigation, the stronger the presumption of unsealing the pleading becomes." …

The post Plaintiffs Can't Sue the Chinese Government with Largely Sealed Complaint appeared first on Reason.com.

Let's say that the SPLC prosecution didn't happen in 2026, and we're now in 2030. Gavin Newsom is President, and the Justice Department announces an indictment. The target is a prominent conservative activist group. The indictment alleges the group raised money by telling conservative donors that it would fight antifa and other sometimes violent left-wing extremist groups. It turns out that it developed an extensive network of paid informants within the leadership of those groups, and indeed paid money to at least one to actually spread leftist extremist messages.

The Justice Department says all this was fraud on the donors, and also that in the process the group had employees open bank accounts using group funds but claiming the funds were personal, and thus lied to the banks and violated anti-money-laundering rules. What would we, as people sympathetic in some measure to the group's overall mission, think?

[1.] I expect some of us might think the group was being kind of slimy. It's been talking about all this left-wing extremism it's fighting, but how much of it was actually ginned up by the group instead?

[2.] At the same time, some of us might think the group is being pretty cunning. Here it's getting lots of information about its enemies. To the extent it's prodding some of its paid informants to actually say extremist things, maybe it's effectively discrediting its enemies. And if we think there really would be plenty of genuine violent left-wing extremism even without the group's funding, we might think that its spending was actually pretty useful to its stated cause. Slimy and effective, after all, aren't always inconsistent for political advocacy groups. Sure, the sliminess might on balance cancel out the effectiveness, but maybe not always.

[3.] We might also wonder whether the Newsom Administration is targeting the group because of its ideology, rather than out of a fair application of neutral prosecutorial judgment. That's always a plausible concern with prosecution of political groups by political actors, but especially in so in a highly politicized time.

We might want to know, for instance: Is it really routine to prosecute groups for having their employees set up bank accounts in the employees' names rather than the group's, not to avoid taxes or to fund organized crime but just to conceal the source of money from check recipients? If such prosecutions are common, then of course a political group shouldn't get a break from them just because it's a political group. But if they're uncommon, then it's more likely that the group is being targeted precisely because of its politics.

[4.] And as to the fraud theory, we might wonder: Was the spending really fraudulent? After all, the alleged representations to donors were pretty general—help us dismantle these violent groups that are your and our political enemies. And at that level of generality, there's at least a credible argument that the group was intending to use the money for that general purpose, and perhaps indeed succeeding in serving that purpose. Perhaps some donors would be shocked at the means the group was using. But it sounds like the representations (this will be used to dismantle the bad guys) were about the ends. And such a representation about ends, we might think, doesn't make any commitment about means.

At the very least, we might think that the fraud claim is a stretch, and that prosecutors shouldn't be stretching fraud statutes in a case targeting a political group that their Administration opposes. Again, if these sorts of fraud prosecutions were routine, then it may make sense for prosecutors to just follow the routine as to the conservative group, just like the law has been applied to liberal groups, or to entirely apolitical groups. But if there haven't been such fraud prosecutions before, then it may look to us like the Newsom Administration is going after the group because of its ideology.

Of course, maybe some of us might think that the hypothetical conservative group's "dismantling" claims really were outright fraudulent, even if we generally agree with the group's politics, and might want prosecutors to throw the book at them. But I doubt that this will be a common reaction, especially given the vagueness of the representations that the group is accused to have made.

[5.] As you might gather, I'm suggesting that conservatives should take the same view as to the Trump Administration's prosecution of the SPLC as they would as to the Newsom Administration's hypothetical prosecution of the conservative group. Likewise, I'm suggesting that liberals should take the same view as to both as well. To be sure, that's something of an obvious point; but sometimes the obvious might be worth mentioning.

And that's why I'm tentatively skeptical of the prosecution. Again, if it turns out that prosecutions for the bank transactions laid out in some of the counts are commonplace, that would change my view as to those counts. Likewise as to the fraud counts, if it turns out that fraud law does routinely treat such behavior as a fraud on the donors, despite the factors mentioned above.

But from what I hear, there really isn't much precedent for such fraud prosecutions. In any event, though, I think it's always helpful to think about what would happen if the shoe were on the other foot. Some day soon, it likely will be.

The post Thought Experiment: It's 2030, and the Newsom Justice Department Indicts a Conservative Group for Paying Antifa Leaders appeared first on Reason.com.

[Iowa's] general trespass statute defines "trespass" to include "[e]ntering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner …." "A person has been notified or requested to abstain from entering or remaining upon or in the property … if … [t]he person has been notified to abstain from entering or remaining upon or in property personally, either orally or in writing …." When an ordinary trespass does not result in bodily injury or property damage exceeding $300, the offense is a "simple misdemeanor" and is punished by a fine between $105 and $855 and up to 30 days of imprisonment.

In 2021, Iowa decided its general trespass statute was not deterring trespassers from unlawfully entering private property to record their trespasses. So it enacted § 727.8A to create a new "trespass-surveillance" offense, which it treated more harshly than ordinary trespass. For instance, under § 727.8A,

[a] person committing a trespass as defined in section 716.7 who knowingly places or uses a camera or electronic device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class "D" felony for a second or subsequent offense.

Iowa punishes aggravated misdemeanors with a fine between $855 and $8,540 and up to two years of imprisonment, and class D felonies with a fine between $1,025 and $10,245 and up to five years of imprisonment.

Two … animal-welfare groups, including ICCI [Iowa Citizens for Community Improvement], developed as-applied challenges on remand, contending the statute's prohibition against using cameras while trespassing chills their members' speech when applied to prevent them from recording on private property that is otherwise open to the public after being asked to leave but not to stop recording. Relevant here, ICCI alleges its members intentionally record themselves committing ordinary trespasses, "particularly … at political and corporate sites," to draw attention to their activities. ICCI alleges its members are willing to suffer the consequences for ordinary trespass but the heightened penalties for trespass-surveillance have chilled their speech….

Whether the First Amendment protects ICCI's members' speech in this context is an open question. We know "freedom of speech includes expression through the making and sharing of videos" in some instances. But the Supreme Court "has never held that a trespasser … may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes …." Lloyd Corp. v. Tanner (1972); see also Hudgens v. NLRB (1976) (holding picketers "did not have a First Amendment right to enter [a privately owned] shopping center for the purpose of advertising their strike"). We need not resolve this question because even assuming recording while trespassing implicates the First Amendment, ICCI's as-applied challenge fails.

[Section] 727.8A is "reviewed under intermediate scrutiny because [it is] a content-neutral time, place, and manner restriction." "To survive intermediate scrutiny, 'a regulation need not be the least speech-restrictive means of advancing the Government's interests.'" "Rather, the standard is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation and does not burden substantially more speech than is necessary to further that interest." …

Iowa has an important government interest in protecting its citizens' property and privacy rights…. "[D]iminution of privacy and a violation of the right to exclude [are] legally cognizable harms." … Section 727.8A promotes this interest. For example, in arguing that the statute chills its speech, ICCI admitted its members no longer record while trespassing because they are unwilling to risk the heightened penalties for trespass surveillance, and in arguing its injury is redressable, ICCI stated its members will resume their misconduct if we enjoin § 727.8A. Consequently, we conclude § 727.8A "promotes a substantial government interest that would be achieved less effectively absent the regulation" and turn to tailoring….

Iowa's interest in preventing trespass-surveillance is particularly strong because recordings can be disseminated widely and indefinitely, exacerbating the harm ordinary trespassers cause to property and privacy rights, and § 727.8A is narrowly "tailored to target th[is] harm and redress th[is] evil," as its "restrictions on the use of a camera only apply … when there has first been an unlawful trespass …. " …

ICCI alleges its "members travel to spaces generally open to the public," "disruptively protest," "are inevitably asked to leave," and "intentionally record themselves trespassing" "during these encounters." ICCI's members then send "the video recordings to media outlets to increase their advocacy efforts [and] draw attention to their message." ICCI posts this content on its website and social media "to communicate the message of the protests to ICCI's members and the public, and thereby encourage people to join the work." To give a few examples, ICCI alleges its "members have been arrested for trespassing in a number of settings: blocking a construction site, protesting in a bank lobby, and protesting in the offices of elected officials." Based on ICCI's own allegations, its members plainly want to engage in the exact misconduct § 727.8A is narrowly tailored to proscribe. Consequently, ICCI's as-applied challenge fails….

ICCI contends applying the statute does not further Iowa's interest in protecting property and privacy rights when a property owner objects to its members' presence but not to their recording. This is nonsensical. When a property owner uses his "power to exclude" by ejecting a trespasser—"one of the most treasured strands in [his] bundle of property rights"—he necessarily exercises his lesser right to stop the trespasser from unlawfully recording on his property….

ICCI [also] suggests Iowa's interests in protecting property and privacy rights are not implicated when the locations at issue are otherwise open to the public. But property owners forfeit neither their right to exclude nor to control their property by opening it to the public for a certain purpose….

ICCI posits the officials failed to produce any evidence demonstrating Iowa needed to proscribe all the speech covered by the statute to achieve its interests. This argument lacks merit because § 727.8A is subject to intermediate rather than strict scrutiny, as discussed above…. "[A] regulation need not be the least speech-restrictive means of advancing the Government's interests" to survive intermediate scrutiny …. {As ICCI points out, under the Fourth Circuit's PETA decision, it is "a nonnegotiable requirement" of intermediate scrutiny that there be "'actual evidence' in the legislative record that lesser restrictions will not do." But we are not bound to follow PETA and will not do so because it is inconsistent with the intermediate scrutiny standard outlined in TikTok and Turner Broadcasting Systems.}

In sum, … [ICCI] members' recordings implicate Iowa's important state interest in protecting owner's property and privacy rights, these interests would be served less effectively without the statute, and the statute does not proscribe substantially more speech than necessary to achieve Iowa's legitimate ends.

Breanne Alyssa Stoltze argued on behalf of the state; Jacob John Larson was with her on the briefs.

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

New cert petition! In 1960, the Supreme Court as good as erased the oath-or-affirmation requirement from the Fourth Amendment, thereafter permitting warrants to issue based on hearsay—instead of firsthand testimony from an actual witness. Now we're asking the Court to stop flouting text, original meaning, and a deep well of pre-1960 precedent and to take up the case of Michael Mendenhall, who was arrested and had his Denver office searched based on thirdhand hearsay from an obviously unreliable source. Click here to learn more.

New on the Short Circuit podcast: Live from Penn Law we continue our #12Months12Circuits series with Circuit Numero Tres. Reverse discrimination, prophylactics, and semi-sanctionable hallucinations.

1. Based on a Presidential Proclamation, the current administration started summary deportation proceedings without adhering to procedures—such as allowing people to apply for asylum—that Congress adopted. A set of nonprofits sue and receive an injunction and class certification. D.C. Circuit: Which was correct. Congressional statutes > stuff the President says. Dissent: I agree the Proclamation is too broad in some respects. But I'll note that the inhabitants of North Sentinel Island don't have standing in this case.
2. More than 99% of transgender female prisoners held in federal custody are housed in male prisons. The remaining <1% are housed in female prisons based on individualized factual findings by the Bureau of Prisons that these inmates are at particular risk of harm if housed in male prisons. In 2025, President Trump issues an executive order requiring these inmates to be transferred to male prisons. Eighteen trans inmates sue and secure a preliminary injunction against the transfer. D.C. Circuit (over a dissent): Which they may be entitled to, but the district court needs to do an individualized assessment for each inmate. Injunction vacated.
3. Man sues feds to enjoin investigation. Feds argue that the suit is both too early and too late. (If we had a nickel, amirite?) D.C. Circuit: Neither too early nor too late.
4. Practice Tip: Think twice before admitting all the allegations in a complaint in the hopes of then challenging it on appeal under the forgiving pleading standard for plausibility, especially when the gov't is trying to forfeit your property by alleging it's funding Iranian terrorism. If you ignore this tip, the D.C. Circuit may well give the gov't the benefit of the doubt.
5. In 2017, a man deflagrated an improvised pipe bomb in an NYC subway tunnel near Times Square. He didn't succeed in seriously injuring anyone other than himself, but he did get a life sentence to Florence Supermax. Second Circuit: That the man was inspired by ISIS to commit a terrorist attack doesn't mean that he provided material support to ISIS. So his conviction on that count will be reversed, but the rest are fine—as is the sentence. Dissent: He set off a pipe bomb because ISIS called on its supporters to do so, he repeated an ISIS rallying cry, and he told investigators he did it on behalf of the Islamic State. That's providing material support, and the majority is "wrong, wrong, and wrong again."
6. District court: The jury was entitled to believe a cyclist who says a Philly officer choked her without cause and to disbelieve the officer, who failed to activate her bodycam and whose story changed several times. Third Circuit: Yeah, sounds like the jury got a little emotional. And the district judge got a little emotional too, quoting Shakespeare and all. Punitive damages reduced from $250k to $12k.
7. A baby girl is gravely injured at an Al Qaeda facility in Afghanistan when her parents detonate suicide bombs during a raid by U.S. forces. She's taken to a U.S. military hospital for treatment where a JAG officer learns of her injuries, obtains custody and later adoption orders from a Virginia court. Yikes! Notwithstanding the orders, the U.S. Embassy hands the girl over to an Afghan family that is evacuated in the chaotic U.S. withdrawal. A fractured Virginia Supreme Court upholds her adoption to the JAG officer. While the state-court litigation pended, the now-stateside Afghan family filed a federal suit seeking $20 mil in damages. The district court allows them to proceed pseudonymously and enters a protective order prohibiting the JAG officer's family from identifying the Afghan family to anyone unless they first sign an NDA. Fourth Circuit: This is the exceptional case where a content-based prior restraint survives First Amendment review.
8. Texas law requires all public schools to display the Ten Commandments in every classroom. Does this violate the Establishment or Free Exercise Clauses of the First Amendment? Fifth Circuit (en banc): Nope. Founding-era establishments were not comparable to requiring a poster on the wall of a gov't building, and nobody is forcing or prohibiting anyone from practicing their religion. Judge Ho (concurring): And we shouldn't be worried about justiciability. Judge Oldham (concurring): Actually, I think we should be. Dissent: It's unconstitutional until the Supreme Court overrules Stone v. Graham. 
9. Last week, your dashing summarist brought you a few puns in service of the Fifth Circuit's striking down the 158-year-old federal ban on home distilling. This week, we've got a sexier approach: a circuit split. Contra the Fifth, the Sixth Circuit holds that the ban is a necessary and proper means of collecting taxes on liquor, which people have evaded as long as the Republic has existed. A dissenter wouldn't even reach the merits, in light of the view that the plaintiff is but a beer brewer who has "researched" distilling.
10. Indiana elementary school teacher brings a First Amendment challenge against Indiana law prohibiting public schools and their teachers from providing instruction on human sexuality to students in prekindergarten through third grade. The Seventh Circuit emphasizes that the plaintiff "is represented by very able counsel," so you already know how that turns out.
11. Tale as old as time: Guy walks into a bank, says his name is "William Woods" and tries to access accounts under that name. When the bank calls the account holder, who is a totally different guy, the so-called "William Woods" ends up arrested, convicted of felony identity theft, and jailed for over a year. The Scooby Doo twist, though, is that our guy is actually totally William Woods, the account holder was the identity thief all along, and things unravel from there in this Eighth Circuit case. [See here for the raveling and unraveling, which involves involuntarily commitment and a dogged investigator.]
12. During World War II and the Vietnam War, various activities—like melting down surplus aircraft and burying drums of napalm—at the Chino Airport resulted in some hazardous conditions that the County of San Bernardino, Calif. is now responsible for remediating. Thankfully, the county's insurer from 1966 to 1975 is paying $9 mil per year to help with the cleanup. Ninth Circuit: Actually, it's going to help out a bit more than that.
13. Last fall, California enacted the No Vigilantes Act, which requires non-uniformed law-enforcement officers—including federal ones—to visibly display identification while performing their duties. The feds sue. Ninth Circuit: And the feds are entitled to an injunction pending appeal, since the statute likely violates the Supremacy Clause.
14. During 2020 civil unrest, Denver officer shoots nonthreatening protestor with pepperball without warning or cause. Jury: Fourth Amendment violation. Tenth Circuit: Even if he hadn't bragged about liking to shoot protesters, no QI. [Circuit split alert! Astute readers will recall the Eighth Circuit says that such shootings are not a "seizure," and thus not a 4A problem as long as the idea is just to shoot protesters for fun/dispersal and not to arrest them.]
15. During 2020 civil unrest, lots of Denver officers shoot lots of nonthreatening protesters with usually-not-lethal projectiles without warning or cause. Jury: Which violated the Fourth Amendment, and the city is liable. Tenth Circuit: No need to disturb the verdict or damages awarded, "nonsensical" argument from the city notwithstanding.
16. Here's something that might raise an eyebrow: Multiple lawsuits across the Spanish-speaking world dispute who owns intellectual property related to Frida Kahlo. (Her family licensed something to a Panamanian company in 2005.) In 2022, the dispute came to Miami when Kahlo's grandniece sent cease-and-desist letters to a Kahlo exhibitor licensed by the Panamanians. The Panamanians responded by suing the Mexican heirs. Eleventh Circuit: And they can fight about that in Florida. Sending allegedly tortious cease-and-desist letters into Florida is, in Due Process speak, a minimum contact with Florida.
17. Per agreement with the feds, Florida built a detention facility in the Everglades and began using it to house immigration detainees. Environmentalists and the Miccosukee Tribe sue, saying environmental reviews had to happen first. Eleventh Circuit: It's not a NEPA when the state is building things on its own. Also, immigration law generally doesn't allow enjoining stuff involving immigration enforcement. Dissent: Immigration enforcement is a federal task, so it should be subject to federal environmental laws, even if a state is administering it.
18. Failed Senate candidate and former Chief Justice of the Alabama Supreme Court Roy Moore sues the producers of a negative political ad that quoted news coverage of his alleged creeping on young girls. Jury: Defamatory. $8 mil in damages. Eleventh Circuit: No. Although some might read the ad as implying that Moore was banned from the mall FOR creeping on a 14-year-old working as Santa's helper (which is false), it can also be read as implying that he was banned from the mall AND creeped on a 14-year-old working as Santa's helper (which is, allegedly, true).
19. Future readers of the Federal Reporter will find evidence of commonality between the Biden and 2d Trump Administrations when they learn that the latter defended an executive order of the former regarding project labor agreements. Both administrations were/are okay with making all contractors on a federal project enter into a master collective bargaining agreement. And the Eleventh Circuit says it doesn't facially violate the amusingly titled "Competition Act."
20. And in en banc news, the Ninth Circuit will not reconsider its decision invalidating a land swap between the BLM and a phosphate company because of an 1898 agreement with the Shoshone-Bannock Tribes. There are two dissentals, one additional writing replying to one of the dissentals, and a "response" replying to the said additional writing by a judge who also wrote one of the dissentals. (Ed.: What's a "response" in this context? A "responsal"?)

New case! Friends, teaching is just talking. It's protected by the First Amendment, and if the gov't wants to regulate it, it has to have a good reason. And Wisconsin does not have a good reason to regulate people like Jim Masterson and Becky Tenges. Jim and Becky teach Jim's own method of horse care—a method that has been taught to thousands of students all over the world. The regulations in question go well beyond commonsense consumer protection and anti-fraud measures (which we don't object to). Rather, state law gives officials approval power over Jim's curriculum (which they don't know anything about) and requires Jim's school to navigate a costly and pointless review process—on pain of $500 per day fines (or even imprisonment). So this week, Jim and Becky teamed up with IJ to put the state to its burden—strict 1A scrutiny. Click here to learn more.

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In 2017, Roy Moore ran as the Republican nominee in a special election to fill an open seat for one of Alabama's United States senators. In the final weeks before the election, multiple news outlets reported that several women had accused Moore of inappropriate sexual conduct with them when they were young. Senate Majority PAC ("SMP") grabbed onto the news reports and ran a campaign ad that stated, among other things, in separate individual frames that (1) "'Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls,'" and (2) "[o]ne he approached 'was 14 and working as Santa's helper.'" [An underlying news report had "asserted that Moore approached Miller and told her she was pretty when she was 14 years old and working as Santa's helper and that Moore asked Miller out on dates two years late," so the argument appears to be that he had never approached a 14-year-old for sex. -EV] SMP ran the ad hundreds of times, and Moore eventually lost the election.

Moore sued SMP for defamation and false-light invasion of privacy under Alabama law, arguing in relevant part that the two statements above when read together created the false defamatory implication that he had solicited the 14-year-old girl working as Santa's helper for sex…. The jury found SMP liable for defamation and false-light invasion of privacy, and it awarded Moore $8.2 million in compensatory damages….

SMP appealed, and the Court of Appeals held in its favor:

Moore's case … involves an allegation of defamation-by-implication (or as Moore puts it, the statement that resulted from the juxtaposition of frames 2 and 3 of SMP's ad), not express defamation. {Moore's theory was that the statement in frame 2 that he "was actually banned from the Gadsden Mall … for soliciting sex from young girls," when combined with the statement from frame 3 that "[o]ne he approached 'was 14 and working as Santa's helper,'" falsely created "a new statement" that he solicited sex from Wendy Miller when she was 14 years old and working as Santa's helper.}

Defamation-by-implication is fraught with subtle complexities and is more nuanced than express defamation. "'Defamation by implication' occurs when a defendant juxtaposes a series of facts to imply a defamatory connection between them." Thus, "a defamation by implication stems not from what is literally stated but from what is implied."

Because the defamatory meaning is implied as opposed to explicitly stated, it necessarily follows that the challenged statement could have multiple meanings—some defamatory and some not. Accordingly, because the challenged statement in a defamation-by-implication case has multiple meanings, the question that necessarily follows is whether showing known falsity or reckless disregard of the falsity of the implied defamatory statement is enough to show the necessary intent to defame for purposes of the actual malice standard.

Although we have not addressed this question, several of our sister circuits have, and they have concluded that, in a defamation-by-implication case, showing that the defendant knew that the implied defamatory statement was false or acted with reckless disregard to its falsity alone is not enough to establish the necessary intent to defame. We agree. Unlike in express defamation cases, "in defamation-by-implication cases, showing known falsity [of the implication] alone is inadequate to establish an intent to defame" because the challenged statement "has defamatory and nondefamatory meanings," which means that we can "no longer presume with certainty that the defendant knew they were making a defamatory statement."

Accordingly, in a defamation-by-implication case, to show the necessary intent to defame inherent in the actual malice standard, the "plaintiff[] must show something that establishes [the] defendant['s] intent to communicate the defamatory [implied] meaning" or that the defendant acted with "reckless disregard for the defamatory [implied] meaning." Consequently, in a defamation-by-implication case, the plaintiff must show by clear and convincing evidence not only (1) that the defendant knew of or recklessly disregarded the falsity of the implied defamatory statement, but also (2) that the defendant "inten[ded] to communicate the defamatory meaning" or recklessly disregarded the defamatory meaning—i.e., "the defendant[] knew that the defamatory meaning was not just possible, but likely, and still made the statement despite their knowledge of that likelihood." …

Consistent with the framework above, the jury in this case was instructed that in order to prove actual malice, Moore had to show by clear and convincing evidence that (1) SMP knew the implied statement in the ad was false or SMP recklessly disregarded its falsity (the falsity component of actual malice); and (2) SMP intended the ad to convey that Moore solicited sex from Miller when she was 14, or SMP recklessly disregarded that the ad conveyed the implication that Moore solicited sex from Miller when she was 14 (the intent component of actual malice). In other words, the jury was charged with determining whether, when SMP juxtaposed frames 2 and 3 back-to-back, SMP intended or recklessly disregarded that it was materially changing the meaning of the quotes to convey a new implied message about Moore that it knew was false and defamatory….

SMP contends that Moore failed to prove by clear and convincing evidence that it intended or recklessly disregarded that its ad implied that Moore solicited sex from Miller when she was 14 years old and working as Santa's helper at the Gadsden Mall. Moore, on the other hand, argues that he established SMP's intent to defame based on three facts: (1) the jury's disbelief of the SMP witnesses' testimony that they did not intend the implication or otherwise believe that the ad implied that Moore solicited sex from 14-year-old Miller; (2) the ad itself; and (3) the fact that SMP vetted the ad before publishing it, which necessarily confirmed that Miller never said Moore solicited her for sex. After careful review, we conclude that none of the three facts relied on by Moore give rise to the necessary intent to defame for actual malice….

[1.] Every SMP witness who took the stand testified that he or she did not intend for the ad to imply that Moore solicited sex from Miller when she was 14 years old…. The jury, however, was entitled to disbelieve this testimony, and given the district court's instructions—that Moore had to "prove that SMP intended [in the ad] to convey that Moore solicited sex from Wendy Miller when she was 14, or SMP recklessly disregarded the possibility" that the ad conveyed this implication—and the jury's verdict in favor of Moore, we agree that the jury must have discredited and rejected the SMP witnesses' testimony….

Even so, the jury's rejection of the SMP witnesses' testimony about the intent of the ad is not itself clear and convincing evidence of actual malice. The Supreme Court has explained that "discredited testimony is not considered a sufficient basis for drawing a contrary conclusion" and finding actual malice. Accordingly, the fact that the jury disbelieved the SMP witnesses' testimony that SMP did not intend for the ad to imply that Moore solicited sex from Miller and that SMP did not view the ad as making this implication "does not establish that [SMP] realized [(i.e., intended) or recklessly disregarded that the implication existed] at the time of publication." In short, to establish actual malice by clear and convincing evidence, Moore needed more evidence than just the jury's disbelief of SMP's witnesses to establish that SMP intended the defamatory implied meaning in the ad or acted with reckless disregard to the defamatory implied meaning.

[2.] Next, Moore argues that SMP's intent or recklessness can be inferred from the ad itself. According to Moore, "the phrase 'One he approached'" in frame 3 "necessarily refers back" to the statement in frame 2, that "'Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls.'" Thus, he maintains that in reading these two frames together "[i]t is impossible that an average viewer of that ad would not believe that Moore solicited sex from Wendy Miller when she was 14." In other words, Moore contends that the defamatory implication is the "most obvious message of the ad," and SMP therefore must have intended the defamatory implication or otherwise acted with reckless disregard to it.

Moore's contention, however, conflicts with the Supreme Court's directives concerning actual malice…. [T]he actual malice standard is deliberately subjective. As a result, "constitutional malice does not flow from a finding … [that] the [ad] may be capable of supporting the impression [the plaintiff] claims." This principle holds true even if the "impressions were clear and unescapable." "Simply because a statement reasonably can be read to contain a defamatory inference does not mean" that "the publisher of the statement either intended the statement to contain such a defamatory implication or even knew the readers could reasonably interpret the statements to contain the defamatory implication."

To conclude otherwise would allow a defamation plaintiff to hold a defendant liable for defamatory implied statements negligently conveyed, rather than only for defamatory implied statements the defendant knowingly intended to convey or recklessly conveyed, which would eviscerate the First Amendment protections that the Supreme Court established in New York Times and its progeny. Thus, although we agree that the statements in frames 2 and 3 of SMP's ad could convey the implication that Moore solicited sex from Miller when she was 14 and working at the mall as Santa's helper, that fact is not clear and convincing evidence that SMP intended that implication or recklessly disregarded that the ad conveyed that implication, which is the critical inquiry….

Moreover, we cannot ignore that SMP included citations to the news articles that it relied on in the ad itself. "Where a publisher gives readers sufficient information to weigh for themselves the likelihood of [a statement's] veracity, it reduces the risk that readers will reach unfair (or simply incorrect) conclusions, even if the publisher itself has." Thus, SMP's inclusion in the ad of citations to the news articles on which it relied not only allowed viewers to verify the ad's contents (or any resulting implications from the ad as a whole) but also further undermines Moore's contention that the ad itself demonstrates actual malice.

{

[I]n another case, … [t]here might be circumstances where the publication itself could demonstrate the requisite intent to defame even when, as here, the defendant denies such an intent. We need not determine what those circumstances might be, because the ad before us does not allow for such an inference.}

[3.] Lastly, Moore contends that SMP must have intended or recklessly disregarded that the ad conveyed the defamatory implication because SMP vetted or fact-checked the ad before publishing it. Moore asserts that because SMP's research team "read all of the articles" cited in the ad and attempted to ensure the ad's accuracy, and none of the articles supported the assertion that Moore solicited a 14-year-old girl working at the mall for sex, it necessarily follows that SMP intended, or recklessly disregarded, the ad's defamatory implication….

But the fact that SMP did not {fact-check the implied assertion that Moore solicited sex from Miller when she was 14 years old and working as Santa's helper} … does not show that SMP intended or recklessly disregarded that the implied statement in the ad. Indeed, one could argue that, given SMP's detailed fact-checking of the other statements in the ad, SMP's failure to fact-check the veracity of the implication shows that SMP did not know that the implication even existed.

At most, {SMP's thorough vetting process} shows that SMP made a poor choice of words in frame 3—a negligent error at best. And a negligent error is not a basis for a finding of actual malice.

In sum, Moore points to, and our independent review has revealed, no other evidence in the record showing that SMP intended or recklessly disregarded that its ad implied that Moore solicited sex from Miller when she was 14 and working as Santa's helper. Because the evidence discussed above is inadequate to support a finding of the necessary intent to defame for purposes of actual malice in a defamation-by-implication case, Moore's defamation and false-light claims necessarily fail.

{Because we conclude that the record evidence is insufficient to establish the intent component of the actual malice standard, we do not reach whether Moore established that SMP knew or recklessly disregarded that the implied statement was false.}

{Because the actual malice standard is the same for defamation and false-light invasion of privacy claims brought under Alabama law, the district court below performed one actual malice analysis for both claims, and the parties on appeal present a single actual malice argument for both claims. So we too perform one actual malice analysis for both claims.}

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I have been posting on Chatrie v. United States, the Supreme Court's geofencing case to be argued on Monday.  In this post, I wanted to talk a bit on why the search question is particularly hard.

The Supreme Court has long struggled to explain what makes government action a "search" of an individuals' "persons, houses, papers, and effects."  The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood,  which were about what kinds of warrants were permitted to conduct a physical search.  But a central challenge of modern Fourth Amendment "search" law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion.

There is broad agreement that the Fourth Amendment needs to extend beyond actual physical intrusion: If it didn't, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records.  The hard question is, what's the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?

The Court has not done the best job at articulating this, I think.  It did a few things that make it extra hard. Two under-appreciated things stand out.

First, the Court has ignored a lot of the Fourth Amendment's text, which made the issue a lot harder to understand.  The Fourth Amendment prohibits unreasonable "searches" of "persons, houses, papers, and effects."  But the Court's precedents have often just described the issue as being what is a "search," ignoring the required thing to be searched in that language: "persons, houses, papers, and effects."  The word "search" has long had a range of different meanings, going back to 18th Century, and reducing the question to that one word adds a lot of confusion: It strips the constitutional question of its context and its history of the cases like Wilkes, Entick, and the Writs of Assistance case.

Of course, the full text is not always ignored.  As the Court's curtilage caselaw has frequently noted, the Fourth Amendment "indicates with some precision the places and things encompassed by its protections:  persons, houses, papers, and effects." Florida v. Jardines, 569 U.S. 1 (2013).  But I think it has been under-appreciated that the proper question is not what is a "search" in some isolated or abstract sense, but rather what is a "search" of "persons, houses, papers, and effects" that reflects the understanding of those terms in the major disputes that inspired the enactment of the Fourth Amendment.

Second, many modern Justices have assumed the correctness of a simple narrative about the Fourth Amendment that Justice Brennan introduced in Warden v. Hayden, 387 U.S. 294 (1967).  Looking for a framework to justify lots of innovations in Fourth Amendment law, Justice Brennan made a pitch that the Fourth Amendment had previously been based on property principles but was henceforth to based on privacy principles:

The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be "unreasonable" within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.

Note that Justice Brennan's property-to-privacy narrative pre-supposed a switch with two parts.  First,  that there was a property era before the 1960s; and second, that some kind of new thinking was needed that was based on privacy.

As I see it, this was malarkey.  Fourth Amendment law had long been based on a mix of appeals to property-ish notions and privacy-ish notions, going back to 18th Century English debates on general warrants, through 19th Century U.S. cases on the Fourth Amendment, and through the early 20th Century.   There wasn't an actual property era, and the extension of the Fourth Amendment beyond physical intrusion (generally expressed under the Katz privacy test) is entirely consistent with the prior understandings, the Fourth Amendment's original public meaning, and the constitutional text.  But property-to-privacy was Justice Brennan's pitch, and it has exerted a strong influence on how later scholars and Justices imagined both Fourth Amendment history and its current role.

It seems to me that once you go back to the full text of the Fourth Amendment, and once you recognize that Justice Brennan's property-to-privacy narrative was not accurate, it becomes easier to think through how to deal with the Fourth Amendment search test. The question should be what is a "search" of "persons, papers, houses, and effects," both for actual physical intrusions (as were the facts at issue when the Fourth Amendment was enacted) and for the modern technological equivalents of those physical intrusions (as have to be recognized to maintain the Fourth Amendment's role in a technological world).  Identifying the modern technological equivalents can be a challenge, for all the reasons that identifying persuasive analogies in law can be a challenge.  But that, I think, should be the goal.

The difficulty for the Court, though, is that the past treatment of this issue leaves current Justices with a lot of different pieces of the puzzle to latch on to.  The heavy influence of Justice Brennan's framework has caused a modern split, with some Justices wanting to go back to a property approach that never existed.  If you think the privacy approach is right and requires new understandings of privacy, you run into the challenge of what that privacy test is supposed to mean.  If you turn to the text and focus only on the word "search" in the abstract, putting aside the rest of the text and the 18th century usage in cases like Entick and Wilkes, you run into the many definitions of what is a search that doesn't itself provide any guidance as to which definition applies.

And the common law doesn't help here, either.  What we today see as search and seizure law was at common law considered a set of rules that typically provided affirmative defenses to otherwise-existing causes of action.  It was a question of what powers existed, and therefore what causes of action could be maintained. This means that, although there was discussion of "searches" and "seizures" in the 18th century cases like Entick and Wilkes in discussions of the facts of those cases, there was no legal concept of what was a "search" or "seizure." The issue just didn't arise under the legal system that existed then.

Granted, many of those cases arose in the setting of trespass actions, in which the validity of the warrant was an affirmative defense to a trespass claim for breaking into a house.  But the framing-era debate over warrants was not just about trespass actions, or even just about affirmative defenses. In the Writs of Assistance case, for example, James Otis's arguments against general warrants were made in a representation of Boston merchants who opposed general warrants. Otis (unsuccessfully) argued on behalf of the merchants whose places might be raided that the writ to issue those warrants could not be renewed. In other cases, the affirmative defenses arose as defenses to criminal prosecution.  The law was about what otherwise-existing actions could be maintained, so there was no sense of what might trigger the set of rights.  I tend to doubt this would have been thought of as a coherent question at the time of the Fourth Amendment's enactment.

To make matters even harder from a judicial administration context, these different approaches are often neither inherently broader nor narrower than others.  They're just different, with the differences in actual scope often rather unclear.  That makes it extra hard in a world governed by the Marks test, in which lower courts are bound by the narrowest opinion in favor of the winning side when there is no majority opinion.  Under Marks, unless the Court can get to five votes on a particular rationale as to whether there is or is not a search, lower courts may be unable to know which of these different tests to apply.

Of course, it's entirely possible that a majority of the Justices will be able to reach agreement on these issues in Chatrie.  If so, it could really help lower courts understand how to work through these issues. But given all of these strands of thought, it's a difficult puzzle to work through.

Oral argument is Monday, 10 a.m. Eastern.

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