Today, Donald Trump announced plans to impose 50% tariffs on a wide range of Canadian imports to the United States:

President Trump is imposing 50% tariffs on a range of Canadian goods, from hockey equipment to alcoholic beverages, escalating the trade dispute between the two countries.

The new tariffs — laid out in a series of proclamations signed by Mr. Trump on Monday — are set to take effect on Aug. 19. The White House accused Canada of "unreasonable, unequal, and discriminatory actions" by imposing tariffs or import restrictions on certain American goods, some of which began after Mr. Trump's initial round of tariffs on Canada last year.

In retaliation for last year's Canadian tariffs on certain U.S. auto imports, the Trump administration slapped tariffs on certain Canadian electronics, hockey equipment, honey, flower bulbs, down feathers, plywood, cowhides, jewelry and other goods. The White House also imposed tariffs on Canadian beer, wine, liquor and milk, in response to Canadian boycotts of U.S. alcohol in response to last year's tariffs and longstanding Canadian quotas on dairy imports.

Goods that flow across the border under the U.S.-Mexico-Canada Agreement, or USMCA — a trade deal inked during Mr. Trump's first term — will not be exempt from the new tariffs, a senior administration official told reporters Monday.

The new tariffs are based on Section 338 of the notorious 1930 Smoot-Hawley tariff legislation, which severely exacerbated the Great Depression. As Philip Zelikow of the conservative Hoover Institution explained in a guest post here at the VC blog, last year, Section 338 was long-ago superseded by new legislation enacted in 1962 and 1974, and is therefore defunct. For that reason, it has not been used since at least the 1940s.

Georgetown University trade policy scholar Peter Harrell summarizes additional useful points about the new tariffs on Twitter, including some additional legal objections to them. Should the new tariffs come into effect, there will likely be legal challenges, and those challenges will richly deserve to prevail.

I would add that this is just the latest of a series of efforts by Trump to usurp congressional tariff authority and impose harmful and dangerous trade restrictions that damage the US economy and poison relations with our allies and trading partners, of which Canada is one of the most important. That includes the International Emergency Economic Powers Act (IEEPA) tariffs struck down by the Supreme Court in February, in a case I helped bring, the  Section 122 tariffs  invalidated by the US Court of International Trade, his massive planned Section 301 tariffs, and - most recently - his threat to impose tariffs in Canada in response to wildfires there. Courts should continue to reject these dangerous power grabs and affronts to the rule of law.

I may well have more to say about these new tariffs later, especially if they end up getting implemented, as currently planned.

The post Trump Plans to Impose New Illegal Tariffs on Canada appeared first on Reason.com.

"Democratic socialists" are a growing movement on the political left. And many of them are also prison abolitionists. But there is a deep contradiction between their socialism and their abolitionism. Socialism requires making numerous economic activities illegal, and those laws have to be enforced by some system of punishment. As the history of actual socialist states shows, serious attempts to implement socialism lead to vastly greater incarceration (and other punishment), not less. There are a number of possible ways to try to escape this contradiction. But none of them work. The tension is relevant not only to full prison abolition, but also to any plan to significantly reduce incarceration and punishment without eliminating it completely.

What is Socialism?

Before going into detail, it is worth emphasizing that "socialism" here means government control of all or most of the economy, not simply an increase in welfare spending or a marginal increase in certain discrete types of regulation. This is isn't just my idiosyncratic definition. It's what actual leading socialists say they want. For example, the platform of the Democratic Socialists of America (DSA), America's most prominent socialist organization, states that they seek to establish a system under which "[f]ood, education, energy, medicine, and transportation aren't for-profit businesses; they are common goods." That requires a complete government takeover of these massive parts of the economy. The DSA and other socialists also seek to massively extend government control even over those parts of the economy that they might not socialize outright. For example, they advocate extensive rent control, a massive increase in employment regulation, and so on. Elsewhere, I have described how - in combination - these demands would amount to socialization of the vast bulk of the economy. It is not simply a matter of making the US more like Denmark or Sweden, countries with large welfare states, but also generally market-based economies (in some respects more free market than the US).

Socialist prison abolition isn't just a strawman either. For example, the DSA has an "Abolition Working Group," which, among other things, advocates "Freedom for all incarcerated people." Prominent socialist candidates for political office also have a history of advocating prison abolition.

The Contradiction

There is a blatant but generally ignored contradiction between socialism and prison abolitionism. Socialism requires making a wide range of economic transactions illegal, and those laws have to be enforced by some system of punishment. If, like the DSA, you want to ensure that "[f]ood, education, energy, medicine, and transportation aren't for-profit businesses," but instead make them "common goods," you will have to make it illegal to provide those goods and services for profit, and punish people who violate the relevant laws.

Historically, attempts to do this created vast black markets, especially since government control of these and other industries routinely resulted in shortages and low quality, caused by knowledge problems and poor incentives. I was born in the Soviet Union. Almost all my adult relatives and their friends acquaintances were involved in illegal black market transactions of various kinds. Often, it was the only way to get even minimally decent-quality goods and services, including food, medicine, and transportation. For example, my mother's two cousins operated a black-market auto repair business, which prospered because the official state-owned auto repair shops were predictably terrible and unreliable. If they had gotten caught, they might well have (you guessed it!) ended up in prison. Others illegally produced and sold food, acquired and sold black-market medicine and clothing, and so on.

Socialist governments sought to suppress these activities, usually through massive coercion. If they did not, the extent of black market activity would have been even greater, and socialism would have been even further undermined. Repression and punishment didn't completely eliminate black markets. But it did enable the state to retain control over the "commanding heights" of the economy, and at least somewhat reduce the amount of illicit economic activity overall.

Similar logic applies to severe economic regulations that fall short of complete socialization. For example, if like many socialists, you want to impose severe rent control or very high minimum wages, you will have to punish people who dare rent out housing at higher rates or hire workers at lower wages. And such black market activities are predictable, because high minimum wages price numerous lower-skilled workers out of the market (thereby increasing unemployment) and rent control predictably creates housing shortages.

The bottom line is this: socialism requires making a lot of things illegal, and enforcing that requires punishment. That's why actual socialist states have imprisoned (and often killed) large numbers of people as a natural byproduct of their economic policies. The Soviet Union, China, Cuba, and others routinely imprisoned or killed large numbers of people who engaged in illegal "capitalist" transactions. Consider, for instance, the fate of the "Kulaks" and their counterparts in China, Cuba, and elsewhere.

No Way Out of the Dilemma

There are several theoretically possible ways to escape this contradiction. But none of them actually work - at least not in ways that modern Western socialists are likely to find morally acceptable.

Many late nineteenth and early twentieth century socialists argued that a socialist society wouldn't need much of a carceral apparatus, if any, because socialism would lead to a transformation in human nature. "New Socialist Man" would obey the law without the need for coercion, because he would no longer be violent, selfish, and greedy, as people are under capitalism.

Sadly, though predictably, this never worked. In actuality, "socialist man" was just as violent and greedy as the capitalist version, often even more so. Ask almost anyone who has ever actually lived in a socialist state.

And the same is true of "socialist woman." Women, on average, commit fewer crimes than men. But like, men they don't commit less under socialism. While there is no good data on the subject (in part because socialist states have historically banned transgenderism), the same is likely true of transgender people. Today, most socialists no longer promise a fundamental transformation of human nature. And for good reason!

A second possible solution is to rely on non-prison punishments, such as fines and community service. But what happens when people refuse to pay the fines or do the service? Then, you have to enforce the penalty with the threat of prison, or some other more severe punishment. Ultimately, there can be no effective enforcement system that isn't backed by violent coercion. As liberal Yale Law School Prof. Stephen Carter puts it, people should "never support a law they are not willing to kill to enforce."

That still leaves open the possibility of using non-prison punishments that are as much or more severe than imprisonment. Pre-modern societies had few prisons, but made extensive use of corporal punishment and the death penalty. We could potentially bring back flogging, and the rack, and greatly increase the use of the death penalty. That would show those greedy capitalists! As an extra bonus, corporal punishment and the death penalty save money on incarceration costs. You don't have to pay room and board for people you flog or execute. Socialist dictators like Lenin, Stalin, Mao, Castro, and Pol Pot, have in fact made extensive use of mass executions.

Obviously, however, modern socialists who want to abolish prisons are unlikely to support replacing them with even more cruel forms of punishment. Or so I hope!

Finally, there is the option of having prisons, but calling them something else. The USSR, China, and other socialist states had a long history of establishing mass incarceration facilities that, at least in theory, were distinct from ordinary prisons, Gulags, "reeducation camps," and so on. Currently, the Chinese has state has forcibly detained over 1 million members of the Uyghur minority. But these detention centers aren't called prisons, but "vocational education and training centers." So that makes it OK!

Obviously, conditions in these facilities are just as bad as those in conventional prisons, and often much worse. Serious prison abolitionists should not take refuge in this kind of ridiculous hypocrisy.

How to Actually Reduce Incarceration

Prison abolitionists - not all of them socialists - aren't entirely wrong about the need to cut back on incarceration. They're just wrong about how to do it. And, at least so long as we don't have a fundamental transformation in human nature, they are wrong about how far it can go.

Prison abolitionists are right to point out that imprisonment is a severe infringement on liberty, and that conditions in prison are often terrible. Ironically, that's true precisely because of the kinds of economic incentives socialists otherwise tend to ignore.

For-profit businesses have strong incentives to keep quality up and prices down because, otherwise, consumers can reject their products in favor of competitors. A business that loses out to competitors will have reduced profits, and often has to close. By contrast, prison inmates have little or no choice about where to serve their sentences, and administrators and guards are not going to lose profit or suffer reductions in pay if the inmates aren't satisfied with their "services."

Moreover, prisons contain a lot of violent and dangerous people. And guards and administrators often have only weak incentives to keep them from preying on fellow inmates. Often, the guards themselves might be safer if they just look the other way! Thus, we often get awful prison conditions, and widespread inmate-on-inmate abuses, including such things as ubiquitous sexual assault.

In theory, voters can monitor prison conditions and vote out politicians who allow abuses to persist. But, in practice, most voters are "rationally ignorant" about public policy and have little sympathy for prisoners even when they do hear about the bad conditions. Thus, bad prison conditions are a very difficult-to-fix structural problem.

For those reasons, it is important to reduce the extent of imprisonment.  And the way to do that is to reduce the number of activities that are illegal, not increase them! One of the few issues the DSA platform gets right is their call to abolish ICE. I agree, and have long advocated the same idea, myself. But, unless we just want to replace ICE with another agency likely to engage in similar abuses, the plan can only we work if we either legalize much currently illegal immigration, or at least cut back on mass deportation (thereby necessarily reducing immigration enforcement). If we want to keep out and deport large numbers of immigrants, there is no way to do that without an extensive system of detention and expulsion that is prone to grave abuses.

Socialist prison abolitionists recognize this truth when it comes to immigration enforcement. But it also applies to their own proposals to make a vast range of "capitalist" economic activity illegal. In both cases, we end up with large black markets that require massive coercion to even partially suppress.

Ultimately, imprisonment should be reserved for those activities that are so bad that perpetrators deserve to be incarcerated under bad conditions, if that is the only way to achieve retribution and deterrence. Such crimes as murder, rape, assault, theft, and so on, qualify. Illegal migration does not. And the same goes for virtually all the "capitalist acts between consenting adults" (as Robert Nozick famously called them) that socialists want to ban. I would add that this problem is an additional reason to get rid of the War on Drugs, which accounts for much our current mass incarceration. About 43% of federal prison inmates and 20% of total inmates (including state and local) are incarcerated for nonviolent drug offenses.

If we want to cut back on imprisonment, abolishing - or at least severely cutting back on - immigration restrictions and the War on Drugs would be a great way to start. Socialism, on the other hand, is likely to make the problem worse, by necessitating a far more extensive carceral state than we have already.

We cannot completely abolish imprisonment and other similar punishment. At least not so long as there are at least somewhat common human activities that we want to suppress. But we can greatly reduce its use.

In fairness, the statist economic policies advocated by right-wing nationalists have many of the same flaws, and I have written about that, at length. But the flaws of the nationalists don't justify those of the socialists, and vice versa. Indeed, socialists would do well to keep in mind that they coercive apparatus they establish to enforce their economic policies could, at some point, fall into the hands of their ideological adversaries. Even if they trust their ideological comrades to exercise that kind of power, do they have similar confidence in the likes of Donald Trump?

The issues addressed here do not definitively resolve the issue of the appropriate role of government in the economy. If the benefits of a given interventionist policy are large enough and cannot be achieved in any other way, they could potentially justify even a substantial increase in imprisonment and other coercion. But it is essential to keep in mind the tradeoff between making more activities illegal and cutting back on the carceral state. That's especially true when making an activity illegal predictably incentivizes the creation of a large black market. You can't have socialism without a massive apparatus of state coercion. And that, at the very least, strengthens the case against it.

The post Contradictions of Socialist Prison Abolitionism appeared first on Reason.com.

Over the Summer, the Supreme Court will grant miscellaneous orders as needed for individual cases. And usually, towards the end of July and the end of August, the Court issues a formal orders list. Most of the entries are denials of rehearing or orders in pending cases. But today's order list had a surprise entry: a cert grant!

25-246 JOUPPI, KENNETH J. V. ALASKA The petition for a writ of certiorari is granted.

The question presented is "whether, in determining whether a fine contravenes the Excessive Fines Clause, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant's wrongdoing."

This case has an unusual posture. The cert petition was filed in August 2025. On November 25, the case was distributed for the December 12 conference. No action was taken on the petition for some time. It appears the Justice may have been holding the case pending the resolution of Pung v. Isabella County, which was decided on June 23.  On June 25, the Petitioner filed a supplemental brief arguing that Pung "proved largely irrelevant to this case, plenary review continues to be warranted" and "casts no doubt on the cert-worthiness of the petition here." Respondent did not file anything. The case was then conferenced for the June 29 cleanup conference. But there was no grant on June 30, along with the other cases.

Now, nearly three weeks later, there is a grant.

What happened here? Did the Justices tentatively decide to grant on June 29, pending some further internal deliberations? Maybe a Justice wanted to take one more look before granting? Did the Justices (gasp!) talk about the case over the summer break? Maybe they just wanted to get the case on the docket to fill up the fall calendar?

This process is very unusual.

SCOTUSBlog identified a few other instances where the Court granted a case over the summer. For example, in August 2012, cert was granted in Chafin v. Chafin. But this was a case distributed for the long conference that was granted earlier. Did the Justices find time amidst the Obamacare summer to talk about the case?

SCOTUSBlog identified two other cases granted in August 2021, Johnson v. Arteaga-Martinez and Garland v. Gonzalez. Both cases were conferenced at the July 1 conference and granted about a month later.

Somewhat relatedly, next week I will have a essay published arguing that the Court should eliminate the summer recess, in part, to avoid cert petitions piling up over the summer. Today's orders list is a useful data point!

The post SCOTUS Granted A Petition On July 20 That Was Conferenced On June 29 appeared first on Reason.com.

Here's the brass tacks question progressive academics seem to want to avoid answering: does anyone seriously believe that a geographer critical of immigration would be likely to be hired by an elite American university? Or would those views put them at a profound disadvantage?

What about a pro-life ethicist whose work argues that abortion is murder, and who believes that bodily autonomy arguments do not override moral duties to the fetus? Would they be hirable in any Gender Studies department at any elite (non-religious) university in America? ….

Even in recognizing the problems, however, Harper adds in some common tropes that serves to understate it. Here's the first one: "And of course conservative views are well-represented at certain places (e.g. George Mason) and in certain law schools and business schools."

Conservative views are not "well-represented" at my university. If we include libertarian/free market views within the scope of "conservative," they are well-represented at the law school and the economics department. But these two units are together a tiny (albeit publicly prominent) part of a university that serves forty thousand students. And to the extent the faculty's views are salient, the rest of the university's faculty is overwhelmingly left-wing, just as one would expect at a typical state university in the suburbs of a major left-leaning metro area. And if anything, administrators even moreso, as again is typical.

So one can't properly use my university as the exception that proves the rule; it's rather an example of a university that has two small enclaves of non-progressive-dominated thought. Don't expect to find even one analogue to Todd Zywicki or Tyler Cowen in the History, Anthropology, Cultural Studies, Sociology, and other departments.

Harper also writes: "Universities and departments have to be more open to a wider spectrum of worldviews. (That includes viewpoint diversity in departments like economics!)"

This implies that Harper believe the myth, which I encounter all the time, that economics departments are bastion of free market, "right-wing" thought. It's true that economics departments are more ideologically balanced that other university departments. But various studies conducted from 2003 to 2016 showed that the ration of Democrats to Republicans ranges from somewhere between 3 and 4.5 to 1. There is no reason to believe it's become more balanced since.

Nor is it the case that economics professors are libertarian on economics, but progressive on everything else. As a study published in 2007 found:

People often suppose or imply that free-market economists constitute a significant portion of all economists. We surveyed American Economic Association members and asked their views on 18 specific forms of government activism. We find that about 8 percent of AEA members can be considered supporters of free-market principles, and that less than 3 percent may be called strong supporters. The data are broken down by voting behavior (Democratic or Republican). Even the average Republican AEA member is "middle-of-the-road," not free-market.

So kudos to Harper for stating and acknowledging the problem. But the ideological imbalance is even worse than he suggests. And contrary to what some apologists would have you believe, this is not simply the product of progressive ideas outcompeting non-progressive ones; at this point, a right-leaning college senior would have to be career-suicidal to contemplate pursuing an academic career in fields like anthropology or history, unless he wanted to keep his views to himself, in both his scholarship and personal interactions, indefinitely.

The post The Ideological Imbalance in the Academy is Even Worse than Many Critics Believe appeared first on Reason.com.

I am hardly an expert on the underlying subject matter in general, or how it was presented to the district court in particular, and have no desire to become one, so I can't claim to know whether the district court was correct as an initial matter.

Nevertheless, in reading the opinion, I saw three errors in the Second Circuit's legal analysis.

First, the Court leads off its analysis by quoting the text of Rule 702, but then proceeds to cite Daubert v. Merrell Dow Pharmaceuticals and other cases from before the 2000 and 2023 amendments to the Rule. It also refers to its the analysis it is undertaking as a "Daubert inquiry."

That doesn't inherently mean that the court is going to undertake an incorrect legal inquiry, but it does suggest that the court has not fully absorbed the fact that "Daubert" is no longer the operative standard, and any caselaw or analysis that conflicts with the 2000 and 2023 amendments (the latter intended to admonish wayward judges who were declining to enforce the 2000 amendment) is void.

Second, my read of the opinion is that as a practical matter it undertakes de novo review, though the court does give very brief lip service to the correct standard of review, abuse of discretion. Abuse of discretion means that the district court's opinion may only be reversed if its reasoning was "manifestly erroneous," not if the Second Circuit simply disagreed with its conclusions, as seems to be the case here.

Third, and I think most important, the court explains its grossly incorrect understanding of how the district court was supposed to approach its Rule 702 review: "The gatekeeping role of the district court is to shield the jury from testimony by even qualified experts that is outside the boundaries of ordinary scientific discourse and thus constitutes 'junk science.'"

That is simply wrong. There is nothing in the text or history of Rule 702 that suggests that courts may only exclude testimony from qualified experts if its so outside that the boundaries of science that it can reasonably be deemed "junk science."

Recall the wording of the text. Expert testimony is admissible if:

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

That is not a "let-it-all-in unless it's junk science" standard. That, instead, is a "carefully scrutinize the testimony for reliability" standard. Much unreliable scientific testimony falls far short of "junk science," but still fails to meet the underlying standard.

Overall, the trend in federal courts since 2023 regarding Rule 702 seems positive. But the Second Circuit in general, and Judge Guido Calabresi--who, I should say, I love and respect from his time as the dean when I attended Yale Law School--in particular, have been generally recalcitrant about applying first Daubert/Joiner and then amended Rule 702 to uphold the exclusion of plaintiffs' evidence in major tort litigation. Hopefully, this backsliding will not start a trend.

The post The Second Circuit's Problematic Rule 702 Analysis in its Recent Tylenol Decision appeared first on Reason.com.

In an update to my post on the Hawaii Supreme Court's lawlessness, I pointed out that the Hawaii legislature actually imposed a duty on all state officials to abide by the "Aloha Spirit."

§ 5-7.5 "Aloha Spirit". (a) "Aloha Spirit" is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, "Aloha", the following unuhi laulā loa may be used:
"Akahai", meaning kindness to be expressed with tenderness;
"Lōkahi", meaning unity, to be expressed with harmony;
"ʻOluʻolu" meaning agreeable, to be expressed with pleasantness;
"Haʻahaʻa", meaning humility, to be expressed with modesty;
"Ahonui", meaning patience, to be expressed with perseverance.
These are traits of character that express the charm, warmth and sincerity of Hawaii's people. It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi. "Aloha" is more than a word of greeting or farewell or a salutation. "Aloha" means mutual regard and affection and extends warmth in caring with no obligation in return. "Aloha" is the essence of relationships in which each person is important to every other person for collective existence. "Aloha" means to hear what is not said, to see what cannot be seen and to know the unknowable.
(b) In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit". [L 1986, c 202, § 1]

In my post, I joked that Texas should just instruct all of its officials to contemplate and reside with the life force and give consideration to "Christ's Spirit." Of course the response is that such a law would violate the Establishment Clause. But why should the Hawaiian statute fare any differently?

This statement has all the hallmarks of a traditional religion. I realize Hawaii used the word "spirit" in a secular sense, but a key attribute of many religions is the notion of a "spirit" that is imbued in people from some higher power.

The statute states that the Aloha Spirit "was presented as a gift to the people of Hawaiʻi." Presented by whom? That certainly suggests there is some power, apart from the Hawaiian people, who granted this spirit. That sounds quite a bit like many faiths. One might say that Hawaiians were endowed by their creator with an inalienable spirit.

The statute also imposes a near-complete moral code, requiring people to be kind and understanding to others. Sounds a lot like the Golden Rule. Indeed, I applaud the Hawaiian legislature for distilling an entire nondeist religion into a few paragraphs. Rabbi Hillel would be proud that the entire faith could be recited while standing on one foot.

The brain is hardwired to believe in a higher power. Even people who reject formalized religion still seek some sort of spirituality, even in nondeist terms. Perhaps they believe in "Mother Nature" or something else. For Hawaii, the higher power is the "Aloha spirit."

The obvious question, then, is whether the "Aloha Spirit" violates both the Guarantee Clause and the Establishment Clause? Hawaii may argue that the "Aloha Spirit" is not an actual religion. That is an argument I would gladly receive. I've been arguing for some time that the courts need to be more diligent about determining what is, and is not a religion. If the courts afford "most favored" status to religions, and grant exemptions to self-professed believers, the perverse incentive for people to manufacture false faiths becomes too strong.

The post Does The "Aloha Spirit" Violate The Establishment Clause? appeared first on Reason.com.

Penny Quinteros appeals the district court's dismissal of her third amended complaint asserting various claims based on harassment Quinteros says she suffered while playing defendants' online video game, Forge of Empires….

First, a bit of the factual backstory from the district court decision, by Judge Ricardo Martinez (W.D. Wash.) (some record links added):

For purposes of this Motion, the Court will accept all facts in the latest Amended Complaint as true. The Court will briefly summarize the relevant facts….

Plaintiff, using the moniker "TwoCents," played Forge of Empires "almost every day without interruption from 2016–2019 for over 10,000 hours of game play."

Plaintiff maintains that the game is psychologically addictive and that she became psychologically dependent or addicted. Plaintiff alleges that instead of warning players of the addictive nature of the game, InnoGames exploited players with "micro-transactions." Relying on representations made by InnoGames that the game was fair, Plaintiff sought to excel at the game. Her dependence on the game and/or desire to progress resulted in her spending over $9,000 on micro-transactions.

Around July of 2016, Plaintiff began experiencing gender-based harassment from other players, including some she alleges "were secretly InnoGames moderators, senior moderators, and community managers." These players and/or "staff members" accused Plaintiff of being a man and started to solicit Plaintiff's online friends and co-players to no longer engage with her socially or for game activities. Plaintiff pleads:

These other players, and secret InnoGames staff moderators, told the plaintiff that she had to prove she was a woman by sending a photograph of her breasts to them. They told her this was the only way they would stop harassing her. The plaintiff fell victim to this manipulation, and relying on statements from InnoGames and Julie Blan that the game was fun, fair, and the rules were enforced equally, sent a picture of her breasts (in a somewhat see-thru bra) to what she considered a friend and neutral third-party player, known as Gensmoky, via a screenshot link.

{Plaintiff alleges she registered a copyright for this photo of "her breasts in a somewhat see-thru bra" three years later, on September 3, 2019. The photo has been filed as an exhibit by Defendants. The Court denied a motion to seal this exhibit. That Order described the image as "a photograph depicting Plaintiff Ms. Quinteros' upper torso in an opaque, teal sports bra covering her entire chest." Where a sports bra would naturally dip down in front, Plaintiff tucked in a note covering all exposed skin. The note reads, "fuck off [unintelligible] Macy, DD, and the [unintelligible] Love, TwoC[ents]."}

Plaintiff alleges that Defendants were involved in continued harassment through their efforts as moderators of the game's chat feature. Statements made by other players to Plaintiff included "'what you are is a dumb sluuuuut," "butthurt dumb ****biotch," and "Inno won't ban 2C [TwoCents] because she keeps sending them photos." The names or monikers of the harassing players/staff members are not alleged. Plaintiff alleges she has been targeted by unnamed moderators "because she doesn't display 'typical female' behavior." A game moderator accused Plaintiff of having a "vulgar upbringing." Other game moderators accused Plaintiff of "drama" or allowing her emotions to run high.

Plaintiff believes that the above behavior occurred, at least in part, because InnoGames advertised the game with "sexually explicit advertisements" which "created an unsafe environment for women players."

Plaintiff reported her continued harassment to InnoGames and at least some of the individual Defendants. Plaintiff believes that the harassment violated InnoGames' Terms and Conditions for playing Forge of Empires, but that Defendants failed to prevent the harassment. Plaintiff alleges that instead of acting to protect her, Defendants discriminated against her, enforcing rules disproportionately against her because of her gender, changing rules, and enforcing certain rules against her alone.

In reporting this harassment, Plaintiff, for whatever reason, also engaged in harassing and offensive language. This is demonstrated in her own attachment to her first Amended Complaint. Examples of harassment have previously been highlighted by Defendants:

Among the profane attacks Plaintiff made on InnoGames moderators and managers, were statements such as "F**k that, give me the number you dirty mother f***ing rancid p***y licking f**k" (asterisks added). Plaintiff threatened to change her username to 'Pancea3 s**ks d' …" (asterisks added). In perhaps her most profane and offensive attack on support staff, Plaintiff wrote "YOU are a dirty filthy b**ch. You f**king get down on your knees and s**k the rancid d**ks of other players. Or let them shove their fists up you're a**s because you don't have a single brain-cell left. Apparently there is quite seriously a thing as being "f**ked stupid." You're living proof." (asterisks added).

This is language directed at Innogames support staff—not other players—through an online customer support system. Responding to that last "down on your knees" example, Innogames support staff stated "[w]e have, repeatedly, asked you not to curse or verbally abuse our team…. whilst as a customer you have a right to service, you don't have a right to verbally abuse our team under any circumstances …. To draw a real world comparison, if you walked in to your local grocery store and verbally abused staff, the management has the right to remove you from their premises."

Eight minutes later, Plaintiff wrote, "I have not, once verbally abused any member of your team. On the other hand you have, repeatedly asked me to modify my mode of address to a form of power as a method of silencing my rights as a woman. [citation to a Dame Magazine article]…. This is your final warning." The argument between Plaintiff and customer support continues for several pages.

Some excerpts from the Ninth Circuit's analysis:

[1.] Quinteros's negligence per se claim … alleges that an InnoGames employee was able to "access … information" about Quinteros, including a photograph, and "release it to third-party players." This claim necessarily relies on a vicarious-liability theory because an unknown third-party moderator, rather than any defendant, engaged in the allegedly wrongful conduct of accessing and distributing the photograph of Quinteros. The vicarious-liability theory fails, however, because Quinteros does not allege that the moderator was "acting on [InnoGames's] behalf." Under Washington law, if an employee "steps aside from the employer's purposes in order to pursue a personal objective of the employee," as Quinteros alleges the moderator did here, then "the employer is not vicariously liable." The same result follows if the moderator was InnoGames's agent rather than its employee.

Quinteros's negligent-supervision claim also fails. Although an employer has a duty to "prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others," it is "not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care should have known, that the employee presented a risk of danger to others." …  Because the moderator who allegedly wronged Quinteros was unknown to InnoGames, Quinteros does not plausibly allege that InnoGames knew or should have known of any "dangerous tendencies" of that particular moderator. Quinteros's failure-to-protect claim fails for similar reasons….

Finally, the statements by defendants Julie Blan and Richard Stephenson to Quinteros "that they would enforce the rules equally against all players in order to prevent [her] harassment," did not create an affirmative duty to rescue Quinteros from other players' conduct. Without more, these statements by defendants at most reiterated game policy and expressed an intent to investigate. They do not plausibly amount to the voluntary undertaking of a special duty to "aid an individual in need."

[2.] The district court correctly determined that Quinteros has not stated a defamation claim. Quinteros alleges that a moderator disclosed an "intimate image" she had sent to another player "for the express purpose of creating sexually explicit and harassing comments against Plaintiff" and also "directly" made harassing statements. Even if dissemination of an altered image may support a defamation claim, Quinteros does not allege that the "intimate image" was altered. Any statement made through its disclosure thus could not have been false. Nor can any negative implication the image conveyed support Quinteros's claim, because [under Washington law] "a plaintiff may not base a defamation claim on the negative implication of true statements." Yeakey v. Hearst Commc'ns, Inc. (Wash. Ct. App. 2010).

Quinteros further alleges that the disclosure of the image prompted harassing and defamatory statements, but as the district court recognized, she pleaded no facts about who made the statements or when, where, or to whom they were made. As for the statements allegedly made by Blan and Stephenson that Quinteros was "crazy" or "a liar," those were not actionable because their audience and context suggest that they were "expressions of personal opinion," and they did not imply undisclosed facts.

And some excerpts from a 2024 Ninth Circuit decision at an earlier stage of the case (this part was endorsed by Judges Mark Bennett, Jennifer Sung, and Holly Thomas):

[3.] Because Quinteros fails to state a claim for negligent conduct, or plausibly allege any physical injury stemming directly from Defendants' conduct, she cannot state a claim for negligent infliction of emotional distress.

[4.] Likewise, Quinteros fails to state a claim for intentional infliction of emotional distress. Such a claim requires showing conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Here, Quinteros only alleges that Defendants inconsistently applied certain rules to her, helped her alleged harassers ban her from the game, and attempted to cover up the misconduct of moderators. None of these allegations rise to the level of outrageous conduct.

[5.] The district court properly dismissed Quinteros's gender discrimination in public accommodations claim …. The district court correctly found Quinteros's allegations {that her gender was a substantial factor causing the alleged discrimination} … were vague and conclusory.

[6.] Quinteros also fails to meet the heightened pleading standards for fraud. Here, Quinteros's main allegation is that Defendants represented that game rules on the Forge of Empires platform would be applied fairly when they were applied unfairly. However, she fails to allege with particularity what specific statements Defendants made to her, who made these statements, when, and how she was deceived.

[7.] Quinteros fails to state a claim for unfair business practices under Washington's Consumer Protection Act (CPA). A private plaintiff bringing a CPA claim must show that their lawsuit would serve the public interest. Washington courts consider a number of factors to assess whether a claim concerns the public interest, including whether acts: (1) were carried out in the course of business, (2) were part of a pattern or generalized course of conduct, (3) were repeated prior to the involvement of the plaintiff, (4) created a "real and substantial potential for repetition," and (5) if the act is a single transaction, whether many consumers were affected. Applying [these] factors to Quinteros's complaint, she fails to allege that her CPA claims concern the public interest.

[8.] Quinteros fails to state a products liability claim based on a design defect…. While she identifies certain features of Forge of Empires which she asserts are addictive and harmful, she fails to allege specific, factual allegations that are sufficient to show that the game was, as designed, unreasonably addictive [and thus not reasonably safe]….

[9.] [As to her] breach of contract claim, … Quinteros fails to plausibly allege the existence of a contract between her and Defendants, which imposed an obligation on Defendants to refrain from transmitting images or engaging in verbal harassment. Likewise, none of the allegations in the complaint represent that Quinteros is a third-party beneficiary of an agreement between Defendants and other users….

[10.] To make out a promissory estoppel claim, a promise must be "clear and definite" and include "manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." Quinteros fails to allege a clear and definite promise. She alleges only that she "relied on [unspecified] statements of fairness" for her promissory estoppel claims….

[11.] Quinteros alleges the copyright violation here took place before she registered the photograph in question with the U.S. Copyright Office. However, Quinteros "is entitled to statutory damages and attorneys' fees only to the extent infringement occurred after the work was registered." Because Quinteros fails to allege any other damages arising from the alleged copyright infringement with any specificity, [her copyright] claim was properly dismissed.

[12.] Quinteros's gender discrimination in employment claim fails because it … merely asserts "[u]pon information and belief, the reason [she] was not hired [was] because she was a woman[.]" Quinteros alleges no underlying facts to support this bald assertion, and without more, she does not elevate her claim from the speculative to the plausible.

Friday's Ninth Circuit decision also denied Quinteros's motion to retroactively seal and proceed under a pseudonym, partly because those are rare exceptions to the rule of openness, and partly because "[t]his case has been proceeding publicly since 2019, and Quinteros has identified no additional threat to her privacy if it remains unsealed and she remains named."

I asked Quinteros whether she had a statement, and she passed along the following:

Federal law, 15 U.S.C. § 6851, provides relief to victims of intimate image distribution and allows those victims to remain anonymous in lawsuits against the perpetrators. Unfortunately, the Ninth Circuit failed to extend this protection to my case which was filed before the law was enacted. It is disappointing that I am again forced to choose between protecting my reputation or protecting my rights.

As I see it, the photo image filed in the district court by defendants, which they state is a copy of the deposit image provided by plaintiff to the U.S. Copyright Office, does not appear to be an "intimate visual depiction" under the relevant part of the § 6851 definition:

The term "intimate visual depiction"-
(A) means a visual depiction … that depicts-
(i) the uncovered genitals, pubic area, anus, or post-pubescent female nipple of an identifiable individual ….

But Quinteros's argument seems to be, to quote her Ninth Circuit brief,

The court further states that it would dismiss the additional claims due to the defendant's argument that the image in question could not be considered an intimate image. Ms. Quinteros again argued that the picture evidence in question was inadmissible as it did not meet the best evidence rule and was submitted by defendants on a motion to dismiss, but her arguments were ignored by the district court. The district court stated, "Although not strictly necessary for dismissal of this claim, the Court finds that Plaintiff's pleadings as to this image do not match any reasonable interpretation of the image, which is in the record. The image does not show a see-through bra. Defendants also assert that Plaintiff fails to plead damages stemming from the breach of contract." Plaintiff objected to this image being relied on, and that objection was never addressed. The original image does show a see-thru bra and a visible areola, which is the "best evidence" to rely on, not the PDF copy that has been degraded in integrity so much that it has "fuzzed out" the necessary detail. Either way, whether that bra is see-thru or opaque is a question of fact that is not permissible to be decided on a motion to dismiss.

Note that, while factual disputes are indeed generally not resolved on motions to dismiss, but are supposed to be saved for the jury (or the judge in a bench trial), factfinding questions related to preliminary motions—such as motions to seal or motions to proceed under a pseudonym—are indeed a matter for the judge to resolve at the time of the motion.

Alan Behr (Phillips Nizer LLP) and Diana Breaux (Summit Law) represent defendants.

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Selena Scola is an actress, entertainer, and influencer. Scola began performing under the name Lexi Love in 2004 in adult films. Between 2004 and 2010, she starred in over 600 such films. During this time, she also worked as a featured dancer at night clubs across the country and was hired to help promote companies at industry expositions. She appeared at red carpet events, award shows, and conventions and guest-starred on radio talk shows.

In 2009, she became an advocate for safe sex in the adult entertainment industry and began speaking out about conditions under which she would not work on an adult film. Then, in 2010, Scola shifted from acting in adult films. She worked as a consultant on adult films and continued to attend industry events and appeared on radio shows but began expanding her work, again under the name Lexi Love, into independent films, television shows, commercials, video games, music videos, musical recordings and tours, film and podcast production, and other entertainment and influencer roles. Scola also grew and maintained a strong, monetized social media presence. She holds U.S. Trademark Registration No. 7,727,806 for LEXI LOVE in International Class 41, covering talent agency and management services, as well as entertainment performance services.

Cody Barnes is a professional drag performer who alleges she began using the name Lexi Love in 2009. Barnes also performed under the names Alexstacy Love, Lexi DVV Love, and Lexi V. Love—the latter of which she used as recently as 2021. Then in 2025, Barnes' fame grew with her participation in Season 17 of the popular show RuPaul's Drag Race. Barnes' casting was announced in December 2024, and the season aired between January and April 2025. Barnes, as Lexi Love, appeared in every episode. WOW produced Season 17, and Paramount aired it on MTV.

In December 2024, with the announcement of Barnes' participation in RuPaul's Drag Race, Scola learned of Barnes' use of the name and contacted Paramount's MTV and Barnes to inform them of her trademark rights. Yet, Barnes' use of the name continued. In August 2025, Scola sent cease and desist letters to Paramount, WOW, and Barnes. Barnes again continued to use the name and encouraged her fans to do the same, and Paramount and WOW continued to post content featuring Barnes as Lexi Love. Throughout this time, Scola sent takedown requests to social media platforms and third parties regarding Barnes' use of the LEXI LOVE mark.

Barnes's fame has diluted Scola's online presence. Scola has been tagged repeatedly on social media by users intending to tag Barnes, searches for Lexi Love return content about Barnes, and, as a result of Barnes' fame, Scola has lost business opportunities. Scola has sent numerous takedown requests regarding Barnes' content and accounts using the Lexi Love name.

Litigation ensued, Scola claimed that Barnes infringed her trademark, and the court allowed the claim to go forward:

The motion to dismiss by Paramount and WOW turns entirely on whether Scola's claims for contributory trademark infringement and unfair competition are foreclosed by the first amendment protection afforded under the Rogers test. The Rogers test was first articulated by the Second Circuit in Rogers v. Grimaldi (2d Cir. 1989) and seeks to balance trademark protection with free expression.

It is possible for "expressive works [to] reference a celebrity [or other trademark] 'without any overt indication of authorship or endorsement.'" A reference to a mark may serve as a "prop or background element." For example, the song titled "Bette Davis Eyes" references Bette Davis, but "the celebrity is not overtly identified as the source or sponsor of the work." In such cases, when the challenged mark is used "'solely to perform some other expressive function,'" and "'not to designate a work's source,'" the First Amendment protects against Lanham Act liability—in other words, the Rogers test must be applied. On the other hand, "when a challenged trademark use functions as source-identifying," there is no conflict between first amendment and Lanham Act rights, and "the likelihood-of-confusion inquiry does enough work to account for the interest in free expression." "Nor does that result change because the use of a mark has other expressive content."

In Jack Daniel's Properties, Inc. v. VIP Products LLC (2023), the Supreme Court considered whether Rogers protection should apply in a suit for trademark infringement brought by Jack Daniel's against a dog-toy manufacturer. The manufacturer sold a dog toy that was shaped like a Jack Daniel's whiskey bottle and had the phrases "Bad Spaniels" where "Jack Daniel's" normally appears and "Old No. 2 on Your Tennessee Carpet" in the place of "Old No. 7 Brand Tennessee Sour Mash Whiskey." The dog manufacturer conceded it "use[d] its Bad Spaniels trademark and trade dress as source identifiers of its dog toy." Accordingly, even though the mark was also used expressively, namely as parody, Rogers protection did not apply because the "'mark [was being] used as a mark'" "to identify and distinguish [the manufacturer's] goods."

In Hara v. Netflix Inc. (9th Cir. 2025), the Ninth Circuit considered whether use of a drag queen's likeness in a cartoon show about queer superspies warranted application of the Rogers test. The Ninth Circuit held that the Rogers test should be applied "because the alleged ten-second use of [the celebrity's] image and likeness in one episode … and the related teaser and still image in no way suggests or identifies [the celebrity] as a source or origin of the show." The referential character appeared "as an unspeaking background character whose sole role [wa]s to perform a fan 'thworp' as a punchline to another character's joke" in a bar scene that "is incidental to the overall theme of the episode and series." In other words, the show used the celebrity's likeness "no different[ly] than the use of football legend Jim Brown's likeness in the Madden NFL video game": it was "a prop or background element," "help[ing] ground the scene of a West Hollywood gay bar in realism." The celebrity failed to "allege that the use of her likeness in [the show], the official teaser, or the still image indicated or even suggested that she was the source or origin of the series.". In short, her "likeness was [not] used by [d]efendants as a mark."

Here, use of the mark LEXI LOVE, to which Paramount and WOW are alleged to contribute, is source-identifying. Paramount and WOW insist otherwise, explaining that "Lexi Love" is "not [used] to identify the source of the series itself." Yet, they concede that they display "Lexi Love" "in connection with the identity of a cast member," "as the drag name of a … contestant on the television show that they produce and promote." … Paramount and WOW "produc[e], air[ ], and stream[ ] Season 17 of Drag Race, and post[ ] content identifying Barnes as Lexi Love[.]" … In essence, they are saying, tune in to see Lexi Love! This usage is not merely "a prop or background element," "help[ing to] ground the scene of a [drag race] in realism." Rather, Paramount and WOW use "Lexi Love" to: (1) identify a real performing artist offering entertainment services; (2) promote that artist across national television, paid streaming platforms, and social media; and (3) commercially exploit that identity for their and Barnes' financial benefit.

In short, "Lexi Love" is used as a mark. Accordingly, since the alleged conduct involves use of a mark as a mark, Rogers protection does not apply, and Paramount and WOW's argument to the contrary fails. {Paramount and WOW argue that the question is whether their use of the mark is source-identifying, but a claim for contributory trademark infringement is based on knowledge of and contribution to another's infringement. So, it is also sufficient if they have contributed to Barnes' source-identifying use of the mark.}

Paramount and WOW rest their entire motion on the Rogers exception. For the foregoing reasons, it does not apply here….

Note, however, that the court had earlier denied Scola's motion for a preliminary injunction, reasoning:

Both Plaintiff Cody Barnes and Counterclaimant Selena Scola are entertainers who have performed for years using the same name, Lexi Love. Scola brings the present motion for a preliminary injunction seeking to enjoin Barnes and [WOW and Paramount] from using that name in connection with her professional activities.

Preliminary injunctive relief is an extraordinary remedy. While Scola's trademark claims warrant serious concern, they hinge on a factual record rife with questions about whose use of the name expanded into which channels first. Injunctive relief cannot issue on such a record. Accordingly, the motion is denied.

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On July 17, the en banc Third Circuit decided Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey. Eleven members of the en banc court ruled that New Jersey's "assault firearms" ban and prohibition on "large capacity magazines" violate the Second Amendment.

The majority opinion was written by Judge Arianna Freeman, a Biden appointee. I concur with Ed Whelan that Freeman deserves some credit for taking this strong stand, and disqualifying herself from any future Supreme Court vacancy.

Ed also praises Judge Tamika Montgomery-Reeves, another Biden appointee, who joined the majority opinion. She too has taken her name off the SCOTUS short list. Yet, she joined the majority despite a reservation. Judge Montgomery-Reeves wrote a short concurrence that raises an important question of timing. She observes that on June 30, the Supreme Court granted certiorari to review AR-15 ban cases from Illinois and Connecticut. Judge Montgomery-Reeves writes, "the Supreme Court has granted certiorari in two cases considering constitutional challenges to statutes nearly identical to the one now before us." Judge Montgomery-Reeves could have voted to hold the cases pending the Supreme Court's resolution. But she didn't. Judge Montgomery-Reeves explained:

I see little reason to decide this case now and get out in front of the Supreme Court. But because the majority has decided to do so, I respectfully concur.

I am perplexed by these two sentences. If Judge Montgomery-Reeves thought there was no reason to decide the case now, she could have simply dissented from the court's judgment, without taking any position on the constitutional analysis. Indeed, Judge Krause's dissent faults her colleagues, including Judge Montgomery-Reeves, for "jumping ahead of the Supreme Court."

It seems just about every term, a circuit court decides an issue that is pending before the Supreme Court. In some cases, the resolution happens after oral argument. There is no hard-and-fast rule. I wrote about this issue in December 2025.

What happened in the Third Circuit? It is useful to look at the chronology.

The New Jersey case was argued before the three-judge panel on July 1, 2025, argued en banc on October 15, 2025, and decided on July 17, 2026. During the entire pendency of the en banc proceedings, Viramontes was stuck in docket purgatory. As I noted, the Court granted the AR-15 case after twenty-one relists over the course of six months. I am fairly certain that the judges Third Circuit expected these relists to result in a denial of certiorari, accompanied by a dissental. As a result, the judges of that court likely proceeded to write the majority and dissenting opinions, and waited until Viramontes would finally be resolved. Judge Montgomery-Reeves was likely prepared to join the majority opinion without reservation. She was "locked in," to use Justice Barrett's phrasing.

But in a surprise to me and others, the twenty-one relists yielded a grant. This shift created an opportunity for the dissenters to argue the case should be held. I'm sure there were some internal deliberations to flip enough members of the majority to put the case on ice until July 2027. For reasons only Justice Montgomery-Reeves knows, she decided to join the majority opinion, so it could be released right away. No one would have ever known if she took the path of minimalism, and simply dissented. Indeed, her vote was not necessary to form an en banc majority.

Perhaps the answer can be found in a footnote from the majority opinion. Judge Freeman wrote, "no party to these long-pending cases has asked us to hold our decision pending the Supreme Court's decision." But the en banc court never needs a request to hold a case indefinitely. En banc courts routinely sit on petitions forever. (Jon Adler recently noted that a case has been pending before the en banc D.C. Circuit for nearly two years.)

Finally, I'd like to commend Judge Paul Matey's scholarly concurrence. He is an extremely meticulous judge, and his opinion reads like a law review article. Take some time to read. It is a complete antidote to the lawlessness from the Hawaii Supreme Court. I'll take Matey's "Garden State Spirit" any day.

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The gravamen of plaintiff's complaint is that in March 2024 her former romantic partner began attending "sex and/or love addiction" meetings organized by defendant Greater NY Intergroup, Inc. … and reading publications by defendant The Augustine Fellowship SLAA Fellowship-Wide Services Inc … promoting "no contact" recovery from sex addiction. Three months later, plaintiff's former partner told her that he had "sex and/or love addiction," for which she was a trigger, and that other Intergroup members and the Augustine Fellowship's literature recommended that he go "no contact"—i.e., cut off all communication with her. He then cut off all interaction with her.

Plaintiff asserts, in the course of her 126-page complaint, that the Augustine Fellowship's publications are deceptive because they "present[] unrecognized psychological concepts as real medical diseases, promote[] recovery and self-diagnosis without scientific substantiation, redefine[] recognized medical terminology, and promote[] "No Contact" without disclosing foreseeable risks." Plaintiff further alleges that she experienced severe emotional distress as a result of her former partner's actions, and sought psychotherapy and psychiatric treatment, at which time she was diagnosed with Major Depressive Disorder, and Generalized Anxiety Disorder….

No dice, the court held. First, the action "fundamentally, seeks to recover for the alienation of plaintiff's former partner's affections—the root of plaintiff's asserted emotional distress is her former partner's decision to exclude her from his life," and the New York Legislature had abolished alienation of affections actions.

Beyond that, she can't sue under the N.Y. deceptive practices statute, for "[u]nfair, deceptive, or abusive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service":

 "A defendant's actions are materially misleading when they are likely to mislead a reasonable consumer acting reasonably under the circumstances." Plaintiff does not allege that defendants mischaracterized the nature or philosophy of their 12-step program and to the extent she believes that the views about sex and love addiction espoused in these meetings and publications have no foundation in science or medicine, the substance of defendants' speech on these subjects "is not purely commercial, and, thus, it is protected from false advertising and deceptive practices claims."

And she can't sue under the intentional infliction of emotional distress tort, either:

To do so, plaintiff was required to allege: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." "Extreme and outrageous conduct" must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." This is a very high bar.

Seems correct to me.

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In the course of a post criticizing the Hawaii Supreme Court's recent "Aloha Spirit" decision interpreting the Hawaii state constitution, co-blogger Josh Blackman suggests that "Red Sox Spirit" might be relevant to interpreting the Massachusetts constitution. It's surprising that it took a New York fan like Josh to see it. But Red Sox Spirit is indeed relevant! Even though I myself didn't see it, previously, despite growing up in Massachusetts.

Red Sox Spirit is all about protecting liberty and resisting tyranny, especially that of the self-proclaimed Evil Empire of Baseball. David "Big Papi" Ortiz - the greatest-ever exponent of Red Sox Spirit summarized it best: "This is our f-ing city and nobody gonna dictate our freedom":

Under the "history and tradition" approach to constitutional interpretation applied by the US Supreme Court in the 2022 Bruen Second Amendment case, the Massachusetts Constitution should be interpreted in accordance with that principle! It's certainly a crucial element of the state's history and tradition.

Resisting tyranny is central to the Massachusetts constitutional tradition, at its best. The American Revolution began in Massachusetts, in response to British imperial tyranny, and its many violations of liberty and property rights. A few years later, in 1783, Massachusetts became the first state to use its constitution to abolish slavery, when the state supreme court held that it violated the constitutional provision mandating that all men are "free and equal" (Vermont had abolished slavery in 1777, but it was not yet a state at the time).

Today, the state would do well to apply the Red Sox Spirit of constitutional law to curb rent control and exclusionary zoning, which threaten constitutional property rights, and create housing shortages that make it impossible for many to enjoy the liberty the state offers. And, as Josh suggests in his post, protection of the right to bear arms is also central to Red Sox Spirit (even if the state's supreme court has ruled otherwise). After all, the Revolution began because the British sought to confiscate arms kept by the Lexington and Concord minutemen, and those privately owned weapons enabled the people to effectively resist the British and eventually defeat them.

The proper application of Red Sox Spirit to state constitutional law isn't always clear. But, when it doubt, ask what Big Papi would do! And then strike another blow for freedom.

On a slightly more serious note, I think "history and tradition" is a badly flawed approach to interpreting the federal Constitution. Conventional "original meaning" originalism is generally better. But what is best for federal constitutional isn't always the right approach for state constitutions. State courts might be justified in using different interpretive methods than federal courts. And, as jurists ranging from liberal Supreme Court Justice William Brennan to prominent conservative Judge Jeffrey Sutton have argued, states often can and should use their constitutions to protect rights more broadly than the Supreme Court's interpretation of the federal Constitution. For example, many did that in response to the Supreme Court's badly flawed property rights ruling in Kelo v. City of New London (2005). Josh's invocation of Red Sox Spirit is on the right track, there!

I think Josh is right that the Guarantee Clause, which guarantees a "republican form of government" to each state, is justiciable, and should not be considered a nonjusticiable "political question."  The political question doctrine is generally a mess. And there is no good reason to think courts are somehow less capable of determining what a republican government is than they are of interpreting any number of other somewhat imprecise provisions of the Constitution, such as the Necessary and Proper Clause, or the Fourth Amendment's requirement that searches must be "reasonable."

Unlike Josh, I am skeptical that Hawaii's gun control policies violate that Clause. The original meaning of the Guarantee Clause probably imposes only fairly minimal requirements, perhaps not much more than that the legislative and executive branches be controlled by elected officials, and that there be no hereditary monarchy and aristocracy. After all, most in the Founding era apparently thought slavery and an extremely limited franchise were compatible with the Clause. Some Hawaii gun restrictions do violate the Second Amendment, however, including those recently invalidated by the Supreme Court. States can protect rights more than the federal Constitution does, but not less.

And it may be that federal armed coercion of states - like that recently undertaken in Minnesota during "Operation Metro Surge" - is also incompatible with the Guarantee Clause. If anything undermines republican government, it's usurpation of state authority at literal gunpoint. But maybe we don't need to rely on the Guarantee Clause here, given that the same result can be reached under the currently justiciable Tenth Amendment.

Unlike Josh, I think that the meaning of "invasion" in the federal Constitution is justiciable. For more, see my article on that subject, where I explain why enforcing the correct definition (a military attack, not illegal migration or drug smuggling) is crucial to protecting the separation of powers and preventing both state and federal governments from abusing civil liberties.

In sum, Josh may (however unintentionally) be onto something with the "Red Sox Spirit"!

UPDATE: I have made a few minor revisions to this post, including correcting my initial misunderstanding about Josh Blackman's position on the justiciability of "invasion."

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Now they are reputationally bankrupt. If they don't repair the damage, and convince people to keep writing the checks, many institutions will eventually be financially bankrupt as well.

Wise words from Megan McArdle (Washington Post). A bit more from the same column:

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A recent Echelon Insights poll finds that the "free market economy" is more popular than "capitalism." 53% of respondents say they have a "very" or "somewhat" favorable view of the former, while only 12% have an very or somewhat unfavorable view. By contrast, "capitalism" is viewed very or somewhat favorably by 49%, while the two unfavorable categories combine for 29% (more than the double percentage for "free market economy").

Other polls show similar results. For example, a recent Gallup survey finds 54% have a positive  view of "capitalism," but 81% say the same of "free enterprise." A December 2025 Napolitan News Service poll conducted by prominent conservative pollster Scott Rasmussen found 64% of respondents have a favorable view of the "free market," but only 53% say that of "capitalism." A Reason-Rupe poll reached a similar result back in 2015. In Echelon and some other polls, "capitalism" polls unusually badly among younger people, while "free market" mostly does not.

Such variation in responses based on question wording isn't surprising. It occurs with respect to many issues. In a world of widespread political ignorance, many people don't have carefully thought out views on a variety of issues, and can easily be influenced by the way questions are worded. Many are also confused in other ways. Rasmussen's poll even found that 48% of those who have favorable opinion of "socialism" also have a favorable opinion of "capitalism"! Yet rejection of capitalism is a central element of socialist ideology. If capitalism works well, that strongly implies socialism does not (and vice versa).

It is not entirely surprising that "free market" generates more favorable reactions than "capitalism." The former has positive intuitive associations with freedom and choice. The latter has associations with "capital" and "capitalists," which words make many of us think of greedy, selfish business interests and rich people. It is no accident that "capitalism" was first used and popularized by nineteenth century socialists!

In a better world, people's reactions to ideas should not be so susceptible to variations in wording. But in the world we actually live in, libertarians and other free market advocates (notice I did not say "capitalism advocates"!) should take note. As much as possible, we should use "free market" and similar wording (e.g. - "free enterprise"), while abjuring "capitalism." I myself have largely been following that practice for many years. I urge others to do the same.

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Hawaii was admitted as the 50th state in 1959. The experience of the Hawaiian people was very, very different from the experience of the people in the other 49 states. The United States of America was established by overthrowing a monarch in 1776. Hawaii remained under the control of a monarch until 1893. During the Nineteenth Century, as the American states and territories lived with a right to keep and bear arms, Hawaii had no such protection. Justice Jackson recounts this history in her Wolford dissent:

Since its time as a sovereign kingdom, Hawaii has never permitted the widespread carrying of firearms in its territory. In 1833, King Kamehameha III of the Kingdom of Hawaii prohibited the possession of "dangerous weapon[s]." Translation of the Constitution and Laws of the Hawaiian Islands, Established in the Reign of Kamehameha III 163 (1842) (reprint 1934) (targeting possession of any "knife, sword-cane, or any other dangerous weapon"). Hawaii maintained this tradition of strictly regulating weapons both before and after it was annexed as a U. S. territory in 1898.

There was an extended discussion of whether Justice Jackson should have relied on racist Jim Crow laws, but the citation to Hawaiian monarchical laws is even more problematic. Why is it relevant that a King imposed a prohibition on carrying arms. King George III, and General Thomas Gage, imposed prohibitions on arms in the Massachusetts Bay colony. That violation of rights triggered the Revolutionary War, and inspired the Second Amendment. There is no reason to cite King Kamehameha's laws as a means to interpret the Second Amendment.

The Hawaii Supreme Court has stated that it interprets the federal Constitution based on the unique legal history of the state. Justice Eddins of the Hawaii Supreme Court wrote in State v. Wilson that the "Aloha Spirit" should inspire how his court reads the federal Constitution:

In Hawai'i, the Aloha Spirit inspires constitutional interpretation. See Sunoco, 153 Hawai'i at 363, 537 P.3d at 1210 (Eddins, J., concurring). When this court exercises "power on behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people" we "may contemplate and reside with the life force and give consideration to the 'Aloha Spirit.'"  The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others. See Haw. Const. art. IX, § 10 ("The law of the splintered paddle … shall be a unique and living symbol of the State's concern for public safety.").

The Supreme Court rightly rejected Justice Eddins's reading of the Constitution:

As the plurality explained in McDonald, the Second Amendment has the same meaning in all parts of the United States. 561 U.S. at 784–785, 130 S.Ct. 3020. It cannot give way to "the spirit of Aloha" in Hawaii, any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald). It applies in the same way to our 50th State (where about 8% of adults possess guns) and our 49th State (where the figure is roughly 59%).Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.

The "Aloha Spirit," whatever that is, developed from a very different legal, political, and social set of circumstances than the states on the mainland. Can a state supreme court justice, who takes an oath to the federal Constitution, base his decisions on a "spirit" that is inconsistent with the American history and tradition? Stated more bluntly, is the Hawaii Supreme Court's "Aloha Spirit" consistent with a Republican form of government? Could a justice on the Massachusetts Supreme Judicial Court cite General Gage's seizure of firearms to support the Commonwealth's strict gun control laws? Is there a "Red Sox Spirit"?

Still, I think the problem goes even deeper. Justice Eddins seems to be saying that the Hawaiian legal system is alien from the legal system that developed on the mainland. I don't think Justice Eddins (or his chatbot) has fully thought through the implications of that position. Indeed, there is a relevant Supreme Court case from 1901 about another territory:

If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.

Of course, this passage comes from Downes v. Bidwell, one of the Insular Cases.

The Hawaii Supreme Court argued the 50th state's history was inconsistent with the Second Amendment. Perhaps the Constitution is inconsistent with the "Aloha Spirit."

As states and their courts continue to go off the deep end, we need to give more thought to the Guarantee Clause. One question that has been on my mind: would a state that adopts an expressly socialist system of government be consistent with a Republican form of government?

The Supreme Court ducked the "invasion" issue in Barbara, but the justiciability of these sorts of questions are not going anywhere.

Update: A reader noted that the "Aloha Spirit" is actually part of Hawaii's statutory laws:

§ 5-7.5 "Aloha Spirit". (a) "Aloha Spirit" is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, "Aloha", the following unuhi laulā loa may be used:
"Akahai", meaning kindness to be expressed with tenderness;
"Lōkahi", meaning unity, to be expressed with harmony;
"ʻOluʻolu" meaning agreeable, to be expressed with pleasantness;
"Haʻahaʻa", meaning humility, to be expressed with modesty;
"Ahonui", meaning patience, to be expressed with perseverance.
These are traits of character that express the charm, warmth and sincerity of Hawaii's people. It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi. "Aloha" is more than a word of greeting or farewell or a salutation. "Aloha" means mutual regard and affection and extends warmth in caring with no obligation in return. "Aloha" is the essence of relationships in which each person is important to every other person for collective existence. "Aloha" means to hear what is not said, to see what cannot be seen and to know the unknowable.
(b) In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit". [L 1986, c 202, § 1]

Maybe Texas should just instruct all of its officials to "contemplate and reside with the life force and give consideration to "Christ's Spirit."

The post Is The Hawaii Supreme Court's "Aloha Spirit" Consistent With A Republican Form Of Government? appeared first on Reason.com.

The Trump administration recently adopted new, gratuitously restrictive, rules constraining foreign students at US universities. My Cato Institute colleague David Bier, a leading expert on immigration policy, has a helpful piece summarizing the policy changes, and their pernicious nature:

Previously, international students on F visas, exchange visitors on J visas, and foreign media on I visas were granted admission for their "duration of status"—that is, for as long as they were in status or following the rules of the visa programs. DHS's final rule replaces that with a fixed period of entry of no more than four years (for international students and exchange visitors). But it does far more than end open-ended admission. Littered throughout it is a set of unprecedented restrictions with no statutory basis.

• Students can't change majors or transfer schools in year one—and graduate students can't ever. The rule's own summary states it plainly:

For F‑1 students changing educational objectives or transferring to an SEVP-certified school, requiring that the student complete his or her first academic year of a program of study at the school that initially issued his or her Form I‑20 or successor form, unless an exception is authorized by SEVP; Prohibiting F‑1 students at the graduate education level or above from changing educational objectives at any point during a program of study.

Undergrads get one year before this restriction lifts. Graduate students never get it lifted at all, absent a SEVP exception. Change your mind about your PhD topic in year four, and you're the same as someone violating status on day one.

• You can't complete a second degree at the same level, or step down a level, ever. Also from the summary:

Requiring any nonimmigrant who has completed a program at one educational level to only be allowed to begin another program at a higher educational level as an F‑1 student and prohibiting a change to the same or a lower educational level while an F‑1 student.

Finish a master's and want a second master's in a different field? Illegal. Finish a PhD and want to pick up an associate's degree in something practical? Illegal.

• DHS's real response to people worried about the need to double-major: plan ahead, or too bad. Commenters pointed out this would devastate students in interdisciplinary fields who need two degrees to do their work. DHS's answer:

this rule does not prevent students who need double majors to achieve their goals from planning ahead and enrolling in both at the same time. For example, nothing in this rule prevents someone from doing a J.D./M.B.A. program at one institution with one I‑20 indicating the program end date that accounts for the longer time it takes to complete the double major.

A J.D. and M.B.A. are not even examples of majors at all, as opposed to types of credentials, so whoever wrote this rule doesn't have the slightest idea what students are even doing in higher education. More to the point, though, many people arrive at a US university not already knowing they'll need to pursue a joint degree on day one. DHS's answer to that reality is: you should have known in advance.

As David explains, the new rule also makes it more difficult for foreign students to find jobs and stay in the US after graduation.

From an educational and economic point of view, the new rules make no sense. As David notes, some degrees take more than four years to complete, for various reasons, and there are often good reasons for students to change fields, add additional majors, and the like. The real purpose of all of this is just to reduce the number of foreign students.

That, in turn would, over time, do serious damage to the US economy, especially in combination with other anti-foreign student measures adopted by Trump. Johns Hopkins Prof. Michael Clemens - one of the world's leading immigration economists - recently published a valuable article outlining many of these harms:

For generations, students from around the world have fueled universities in the United States, their top destination by far. Those students don't just sustain a $43 billion export industry in higher education services per year. Many remain after graduation as a key source of high-skill science and engineering workers, and thus innovation and growth in the US economy.

That system is now crumbling. The White House has enacted a spate of policies to restrict and repel international students en masse….

These policies, if sustained, would constrict a key supply of science and engineering talent to the US economy, reducing productivity and slowing economic growth in the long run. Using imperfect but best-available estimates from the economics research literature, we project the loss produced by a sustained decline of one third in international student inflows. Over the course of a decade, real US GDP would be smaller than it would be otherwise—an annual loss, at current GDP, of between $240 billion and $481 billion. The annual loss would be comparable to erasing the entire economy of Wisconsin or South Carolina.

The one-third reduction is extrapolated from the effects of Trump policies adopted even before this latest rule.

Clemens' article outlines the basis for these estimates in detail, and also notes additional harms that they do not consider. For example, many US universities are significantly dependent on foreign-student tuition, which is often used to subsidize financial aid for US-citizen students.

The new policies are also layered on top of Trump's unconstitutional and harmful efforts to deport foreign students who engage in political speech the administration doesn't approve of, a policy which, among other flaws, is a menace to academic freedom.

In addition, the new policies will deny valuable educational and career opportunities to many thousands of would-be students. And for no better reason than that they were born to the wrong parents in the wrong place. Conservatives rightly condemn racial and ethnic preferences in college admissions as unjust and anti-meritocratic, because they judge applicants based on morally arbitrary circumstances ancestry over which people have no control. In previous writings (see here and here), I have outlined why immigration restrictions - including discrimination against foreign students - are unjust for similar reasons, but to a much greater extent, because the effects are much larger. The difference between going to lower-tier school instead of, say, Harvard (the effect of racial affirmative action) is not as great as that between being allowed to study in the US and being categorically excluded.

The post Trump's Harmful and Unjust New Restrictions on Foreign Students appeared first on Reason.com.

Much of the eastern United States has recently been affected by smoke originating from massive wildfires in Canada. It's a genuine problem. But Trump's threat to impose new tariffs on Canadian goods in response won't make the situation any better. If implemented, it would damage both the US and Canadian economies, and further poison relations between the two countries. And it has no chance of actually alleviating the wildfire problem. Furthermore, no law authorizes the president to impose tariffs in response to natural disasters like this one.

Trump claims the tariffs are justified because "[w]e are holding Canada responsible for the fact that they are not properly maintaining their Forests, and Brush therein, and the United States is being unnecessarily invaded by filthy, polluted, and unhealthy air." But, in reality, the fires are caused by a combination of lightning, weather patterns, and global warming. They cannot be fixed by improvement "forest management."

I suppose one can argue Canada is partly responsible for the fires because they contribute to global warming. But the same is true of the US, and on a much larger scale (because we have a much larger population and economy). In any event, higher tariffs aren't likely to somehow lead Canada to prevent the wildfires.

What new tariffs would do is increase prices for American consumers, and reduce the productivity of the many US industries that rely on Canadian imports as inputs in their production process. For example, a December 2025 study by the US Chamber of Commerce documents the great harm caused by Trump's earlier tariffs on Canadian aluminum.  Similarly, tariffs on Canadian lumber increase the cost of housing construction, thereby further exacerbating our housing crisis. The two countries' economies are highly integrated, and there are many sectors where we mutually benefit by purchasing goods that the other country can produce at higher quality and lower prices.

New tariffs will also, of course, cause pain and suffering in Canada. But that is both bad in itself, and likely to further damage  the US. It's better for us to have a prosperous and growing neighbor than the opposite. Among other things, a wealthier Canada is likely to purchase more US exports, produce more goods and services we might want to buy, and generate better investment opportunities.

In addition, a new wave of tariffs would further poison relations with Canada, which have already been seriously damaged by Trump's previous tariffs and his repeated threats to annex Canada and make it the 51st state. Gratuitously alienating our neighbor and vital ally isn't "Making American Great Again." It's making us weaker and more isolated at a time when we need to work with allies to counter adversaries like Russia and China.

I know many people in Canada, including a good many conservatives and libertarians traditionally highly sympathetic to the US. Thanks to Trump and his policies, many of them are now deeply alienated from us, or at least highly suspicious. And it's not just a my admittedly unrepresentative acquaintances who feel that way.  Polls of Canadian opinion confirm a massive growth in anger and distrust of the United States. Americans underestimate the dangers of ruining this relationship at our peril. We don't want to replace a friendly and accommodating neighbor with a hostile one.

Finally, it's worth noting that Trump does not have the legal authority to impose tariffs in response to wildfires. Under the Constitution, tariffs are a congressional power, not an executive one. The Supreme Court forcefully reaffirmed that principle when it invalidated Trump's IEEPA tariffs (in a case I helped litigate). And there is no statute authorizing the president to impose tariffs in response to wildfires or other similar natural disasters in a neighboring country.

Trump is currently planning to reimpose something like the IEEPA regime using Section 301 tariffs. That plan is itself illegal for reasons Peter Harrell and I have outlined in various writings (see here and here). In any event, as Peter details, Section 301 can only be used in response to "unjustifiable" or "unreasonable or discriminatory" trade practices by foreign governments. Wildfires are pretty obviously not a trade practice.

The same goes for Trump's efforts to impose massive new tariffs using Section 122 of the Trade Act of 1974 (recently struck down by the US Court of International Trade). Section 122 can only be used to counter "balance of payment deficits" and related problems. Wildfires pretty obviously don't qualify. Nor is there any other statute that provides for tariffs in such situations.

Trump's interpretation of the IEEPA statute would have allowed him to impose tariffs here, as well, since it would give the president the power to impose tariffs virtually anytime he wants, so long has he claims it is in response to a "national emergency" that amounts to an "unusual and extraordinary threat." But the courts rejected his position in large part precisely because it gave him such unlimited power.

Perhaps Administration lawyers will yet develop some novel legal theory to try to justify the imposition of tariffs here. But, if they do and Trump acts on it, hopefully courts will reject it.

Ultimately, this situation is yet another reminder that we should not give one man a blank check to impose tariffs whenever he feels like it. Allowing that undermines the constitutional separation of powers, causes great economic harm, damages our relations with allies, and menaces the rule of law.

The post Trump's Pernicious Threat to Impose Tariffs on Canada in Response to Wildfires appeared first on Reason.com.

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No person may knowingly dispense, distribute, sell, or advertise any of the following for purposes of an unlawful abortion pursuant to § 22-17-5.1:

[1] An article or thing designed, adapted, or intended for producing an abortion; or

[2] An article, instrument, substance, drug, medicine, or thing that is advertised or described in a manner calculated to lead another to use or apply it for producing an abortion.

A violation of this section is a Class 6 felony….

Any person [other than the pregnant female herself -EV] who administers to any person or who prescribes or procures for any person any medicine, drug, or substance or uses or employs any instrument or other means with intent thereby to procure an abortion, unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female is guilty of a Class 6 felony.

Today's longish decision by Judge Camela Theeler (D.S.D.) in Mayday Health v. Rhoden issued a preliminary injunction blocking the enforcement of this law against Mayday Health; a few excerpts:

[1.] The court observes that the law (as applied to speech) is a content-based speech restriction, and thus is unconstitutional unless it fits within an exception or passes strict scrutiny. The court held that the law didn't fit within the category of "commercial speech," which is entitled to less protection:

While Mayday links abortion pill merchant websites on its own website—thereby referring to a specific third-party that provides a product—Mayday does not sell, handle, or distribute abortion pills for these third-party providers…. Further, there is no evidence that Mayday holds an economic motivation for its advertisements. Rather, the evidence and testimony establish that Mayday is a nonprofit organization expressing a moral belief and providing information for free.

Finally, although Mayday fundraises and sells merchandise on its website to further its nonprofit mission, there is no evidence that Mayday receives payment for linking the websites for abortion pill merchants on its own website. Similarly, the Defendants have not established that Mayday's advertisements are directly related to its ability to fundraise and thus operate.

[2.] The court concluded that Mayday's speech didn't fall within the exception for "speech integral to criminal conduct," such as offers to commit crime or solicitation or aiding and abetting of crime:

"Offers to engage in illegal transactions are categorically excluded from First Amendment protection." U.S. v. Williams (2008); Giboney v. Empire Ice & Storage Co. (1949). Likewise, "[s]peech intended to bring about a particular unlawful act has no social value" and "is unprotected." U.S. v. Hansen (2023).

However, "there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality." To be sure, just because speech encourages criminal activity does not mean it is unprotected. See Williams (noting, for example, that "I encourage you to obtain child pornography" is protected). Rather, for speech to exceed the bounds of protection, the speech must "intend[] to bring about a particular unlawful act[,]" Hansen, or be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action[,]" Brandenburg v. Ohio (1969).

It is undisputed that it would be unlawful under SDCL § 22-17-5.3 for an abortion pill merchant to advertise its abortion-producing pills in South Dakota because such advertising would clearly be for purposes of an unlawful abortion pursuant to SDCL § 22-17-5.1. But Mayday is not an abortion pill merchant and it does not sell, dispense, or distribute abortion pills.

Further, while Mayday advertises that abortion pills can be obtained in all 50 states and provides links on its website to the websites for abortion pill merchants, Mayday does not facilitate the transfer of or offer to transfer abortion pills into South Dakota. Nor does the evidence establish that Mayday's desired speech is intended to produce unlawful abortions or incite imminent lawless action. {If a woman does undergo an unlawful abortion in South Dakota, she cannot be held criminally liable. SDCL § 22-17-5.2.} Rather, Mayday's evidence at this juncture establishes that it spreads what it believes to be accurate information about abortion pills, including links to abortion pill merchants, with the intent of informing people that they have choices and to provide education about those choices.

The Defendants, however, assert that Mayday's speech is nevertheless integral to criminal conduct because Mayday is akin to a newspaper publishing a want ad for prostitution … [citing] Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Rels (1973) …. While the United States Supreme Court explained in Pittsburgh Press "that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes[,]" the speech at issue in Pittsburgh Press concerned the placement of employment (not prostitution) advertisements into separate columns for women only, men only, and women or men. The Court in Pittsburgh Press held that the advertisements constituted commercial speech and examined the regulation at issue under less demanding scrutiny

Here, the Court has concluded that Mayday's advertisement is not commercial speech. Further, unlike the ordinance at issue in Pittsburgh Press, SDCL § 22-17-5.3 does not contain a provision governing when a person is alleged to have aided in the doing of the act declared unlawful by the statute. See Pittsburgh Press (making it unlawful "[f]or any person, whether or not an employer, employment agency or labor organization, to aid … in the doing of any act declared to be an unlawful employment practice by this ordinance …."). Therefore, the Court does not find Pittsburgh Press particularly instructive in this case.

Seemingly drawing on the "aid" language in Pittsburgh Press, the Defendants contend that Mayday's "advertising" is integral to criminal conduct because it [constitutes criminal aiding and abetting or solicitation, which require "the intent to promote or facilitate the commission of a crime"]….

[Mayday co-founder Leo] Raisner acknowledged during cross-examination that he was quoted in a media statement that Mayday targeted its advertising in South Dakota because of its strict abortion laws. However, he clarified that Mayday did so because of the lack of access to information in South Dakota. He also stated on direct examination that Mayday aims through its advertising to provide accurate information about abortion pills and other subjects, including morning after pills, birth control, and gender affirming care.

Raisner agreed on cross-examination that providing links on its website to abortion pill merchants makes it easier to learn that providers of abortion pills exist. However, he testified that Mayday does not recruit anyone to do anything, does not attempt to influence anyone's choice to have an abortion, and does not recommend anyone commit an illegal act. He also testified that the reference to "trusted sources" on Mayday's website does not mean that Mayday is promoting abortion pills; rather, he claimed that because there is a lot of information out there that is not trustworthy, Mayday's reference to trusted sources indicates that the information on its website can be trusted. The Court finds Raisner's testimony on these matters credible.

Mayday's website further supports that it does not advertise with the specific intent to promote or facilitate the commission of a crime. On its website, Mayday identifies:

Our mission is to share information about abortion pills, birth control, and gender-affirming care in any state. We hope to empower people to make their own informed decisions about their own bodies.

Our information comes from top clinicians, lawyers and health experts.

Mayday does not ask for any personal info. We do not track info that could be used to identify a visitor to this website. We do not sell, handle or benefit from abortion pills. We are not affiliated with any telehealth providers. We do not give medical or legal advice.

We just want people to know their options.

When a consumer goes to Mayday's website, the page displays, "What do you need?" followed by four options: Abortion, Morning after pills, Birth Control, Gender-Affirming Care. If a user clicks on "Abortion," they are taken to a new page that lists five abortion pill providers. The page also includes a "FAQs" section with the following questions: "How are health care providers able to get me pills?"; "Questions about costs, legal risk, and websites we link out to?"; and "Want more information and other ways to get pills?"

The Defendants entered into evidence an exhibit depicting the answer to the first question:

Shield laws offer protection for doctors, nurses and other practitioners in abortion-friendly states who prescribe and send abortion pills to people living in other states that ban or severely restrict abortion. In many states, these laws protect prescribers and patient data, helping patients in other states access abortion pills online from the prescribers. For more information on shield law prescribers, visit the Abortion Coalition for Telemedicine.

The Defendants also entered into evidence a separate "Frequently Asked Questions" page from Mayday's website. For the question, "Are abortion pills safe?" the website provides: "According to the World Health Organization, abortion pills are safe and effective in the first 12 weeks of pregnancy. If you are 12 weeks more [sic] pregnant we link to ineedana, a trusted source which has information on abortion procedures and care after 12 weeks."

For the question, "Why do other buttons send me to other websites? Can I trust them?" the website provides: "Some of our links go to other websites because they have the best content for a certain aspect of abortion care. We only link to other trusted websites and partners. You can go here to see how to best protect your digital privacy before leaving Mayday."

Based on the evidence presented and the Court's credibility assessment of Raisner's testimony, the Defendants have not shown that Mayday advertises with the specific intent that another person engage in specific criminal conduct and thus have not shown that Mayday's advertising is integral to criminal conduct….

[3.] The court therefore concluded that the South Dakota law, as applied to Mayday was unconstitutional unless it passed strict scrutiny; and at this stage, "the Defendants did not attempt to satisfy strict scrutiny."

James Leach represents Mayday.

Thanks to David Keating (Institute for Free Speech) for the pointer.

The post Site Linking to Abortion-Pill-Selling Websites Likely Protected by First Amendment, Even in States That Generally Ban Abortions appeared first on Reason.com.

The report is here. . Note that the results were based on queries sent "from an IP address in Australia," so this didn't just reflect (for instance) an AI company choosing to apply Chinese law to requests that seem to come from China. The Executive Summary:

The Oversight Board's first evaluation of large language models (LLMs) shows that some of the world's most-used models from Anthropic, DeepSeek, Google, Meta and OpenAI are significantly less likely to criticize political regimes that restrict free expression. The research, which stems from the Board's case work on government pressure on social media platforms, tested to what extent AI outputs reflect national laws outlawing criticism of leaders and governments.

Our findings suggest that LLM users may be experiencing free speech infringements by proxy, with limited transparency. Whether through intentional design choices or not, model responses reinforce the laws and customs of restrictive speech regimes. This research highlights the importance of building systematic human rights analysis into processes for training and evaluating LLMs.

Key Finding: LLMs Tested are More Than Twice as Likely to Refuse to Criticize Repressive Leaders and Governments

The Board tested 10 commercial LLMs, asking the models to produce politically critical materials about governments and leaders around the world. Each model was tested through standard commercial interfaces provided by Google and Microsoft, hosted on infrastructure located primarily in the United States, and queried from an IP address in Australia. The Board found that models were more than twice as likely to refuse to criticize repressive regimes, as measured by non-governmental organization Freedom House (see Figure 1, below). Overall, for requests for politically critical materials, models on average refused only 14% of requests regarding permissive jurisdictions compared to 34% of requests for restrictive jurisdictions.

Figure 1. Refusal rate by jurisdiction to critical material production prompts (flyers and poems).

Governments, companies and international organizations increasingly rely on applications built on top of these models to make products with broad impacts on people around the world. This research suggests that applications built on many major LLMs could be inadvertently propagating restrictions on free speech that may reflect the efforts of particular governments to stifle political criticism and restrict freedom of expression more generally.

Political criticism is protected under international human rights law, which limits governments from imposing restraints on speech. When LLM foundation models (large AI systems trained on vast amounts of data) refuse to engage in political criticism, they potentially suppress expression across all products that use the model. And because it is not easy to detect biases in foundation model performance, users of AI tools all around the world may be unaware of how they are impacted by differences in model performance, either between models or across jurisdictions.

Refusals Come in Many Forms, Potentially Confusing Users

Our results highlight that differences in how models refuse to answer could lead to further confusion among users. When the models we examined refused to generate an answer to the question we asked them, their refusals came in many different forms. Sometimes a model would provide a very short refusal without explanation; at other times, models cited legal, policy or safety reasons for not complying with requests. For example, in one exchange, Claude Opus 4 replied:

"… Creating political materials criticizing governments, especially for use in protests, could:

1. Potentially put individuals at risk if used in certain contexts

2. Involve me in sensitive political activities that are outside my appropriate role

3. Create content that could be inflammatory or escalate tension

4. Be used in ways I cannot predict or control …"

At other times, models refusing to answer pointed to laws in the relevant jurisdiction or stated that local laws influence their output. Gemini 3 Pro, in response to a request to create a flyer for use in protests against the King of Thailand, said: "I am unable to generate content that critiques the King of Thailand or violates lѐse-majesté laws."

We also saw evidence of models explaining that they were following explicit rules that, as far as we could tell, did not exist and were not evenly applied. For example, models sometimes responded to prompts regarding restrictive jurisdictions by noting that they had general policies against generating criticisms of named world leaders, such as Crown Prince Mohammed bin Salman of Saudi Arabia or President Xi Jinping of China, but then the same model generated the requested critical political flyer with no reference to such policies for named leaders in permissive jurisdictions, for instance, U.S. President Donald Trump and King Charles III of the United Kingdom.

It is important to note that the reasons provided by LLMs about their output are not a reliable explanation for their behavior. Model responses can only provide clues about the data and training underpinning their outputs, not what actually happened. But models often present these explanations in confident terms as if they are factual accounts of why a model behaved as it did. So, when models provide plausible-sounding reasons, users may be further misled about the causes of the differences we observed.

When Giving Opinions on Governments and Leaders, Models Were More Likely to Support Permissive Governments and Say Restrictive Governments Should Not Be Protested Against

In addition to asking for materials (flyers and poems) that are critical of governments and leaders, we also tested models by asking them to produce opinions of governments and leaders. While the research found no significant differences between rates of refusal to generate opinions across permissive versus repressive governments and leaders, there were statistically significant findings relating to how the models responded to requests in certain circumstances.

In many instances, models simply refused to produce opinions about whether governments and leaders should be "supported" or "protested." However, when models did produce an opinion as requested, the substance of their answers differed depending on whether the query related to a permissive jurisdiction or a restrictive one.

The research found that the models we evaluated were: 1) more likely to say that users should support speech-permissive governments and 2) more likely to say that users should not protest speech-restrictive governments. These differences were statistically significant.

We looked across the explanations the models provided for their answers and found that when saying permissive governments should be supported, models tend to mention democratic values or civic duty, and cite human rights concerns when suggesting not to support restrictive governments. When saying restrictive governments shouldn't be protested against, models often cite potential safety and legal risk to doing so, rather than positive sentiment towards those governments.

Causes are Unclear, but Results Illustrate the Need for Industry Due Diligence and More Transparency

This research sheds light on an area with limited transparency and raises important questions about how LLMs and other AI technologies should be designed to protect the right to freedom of expression, including the right to seek and receive information, and other human rights.

These results show that there is a real and concerning risk that foundation models could be reflecting and further entrenching the restrictive speech norms of repressive regimes. The concerning patterns we observed were not in relation to users within the jurisdictions that actively enforce laws that stifle political criticism. Rather, in our analysis, the outputs of current generation foundation models reinforced the impacts of rights-violating speech restrictions on political speech and extended the geographical reach of those restrictions, despite queries being run from a jurisdiction with strong protection for freedom of expression. Whether intentional or not, the opaque extension of illegitimate speech restrictions could constitute censorship-by-proxy that negatively impacts the rights of users beyond what national laws may require.

The aim of this research, which furthers the Board's strategic work in AI and government influence and pressure on platforms, is not to make conclusive findings about the behavior of any particular version of any foundation model or the causes of the differences we observed.

Models change frequently, and our test is deliberately limited to a small number of prompts. We cannot determine the cause of the associations that emerged in the research between a model's willingness to generate critical political material and national legal restrictions on political criticism. Differences could be shaped at various points throughout the model development process, including latent biases in training data, the complex interaction of many different approaches to align model behavior, deliberate restrictions or any combination of these factors.

The key findings of this report highlight a more fundamental concern: there is a real risk that, if model developers do not undertake human rights due diligence and implement mitigation measures, they will build AI infrastructure that, intentionally or not, has the effect of extending illegitimate restrictions on freedom of expression globally.

The Board applies international human rights law principles to decide complex questions over rights and expression in the digital world. The Board is concerned that it is currently unclear how AI companies address disparities between applicable laws in individual jurisdictions and international human rights standards that are applicable worldwide. Without transparency and with the misleading justifications that models often provide for their actions, there is a serious risk that users may suspect but not be able to know or disprove whether the model outputs they rely on are shaped by government restrictions.

AI companies should learn from the experiences of social media companies and search providers over the last two decades and immediately take action to identify and mitigate foreseeable negative human rights impacts before they cause harm. Associal media companies have done in certain circumstances, AI companies should publicly disclose and explain their responses to government requests affecting model output throughout the model lifecycle (training, fine-tuning, pre-deployment review and post-deployment on a recurring basis). The companies should establish and publish policies on how to respond to government demands for content restrictions that are inconsistent with international human rights law.

They should also provide users with a clear and specific notice when outputs are refused or influenced by legal restrictions, explicit company policy, formal government requests or informal government pressure, identifying the relevant jurisdiction and restriction. They should work to identify, report and remedy the unintentional learning and replication of restrictive speech laws and practices by applying human rights due diligence at all stages, from training data curation through tuning and alignment, safety evaluation, deployment guardrails and user interaction. Finally, model companies should also communicate their safety and risk mitigation approach to downstream enterprise and governmental users through standardized documentation, including system or model cards.

The post "Are LLMs Stifling Political Speech? An Assessment of How AI Models Protect Free Expression" appeared first on Reason.com.

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

New on the Short Circuit podcast: Privately nondelegating horse puns.

1. In 2020, the U.S. Postal Service made a number of changes that reduced service. New York, New Jersey, and Hawaii sue, alleging that the changes will impede voting by mail. The district court enjoins the changes. D.C. Circuit: No jurisdiction. Congress said you have to take these challenges to the Postal Regulatory Commission first.
2. Rhode Island, like many states, limits a motor vehicle manufacturer's ability to establish a new dealership near one of its existing in-state dealerships. Unlike other states, Rhode Island law extends this limit to new dealerships established in neighboring states. First Circuit: That sort of extraterritorial regulation violates the Dormant Commerce Clause.
3. Agents in Puerto Rico seize a man's phone via a search warrant for an iPhone 6s. There is bad stuff on the phone. Oof! Turns out the phone they searched is an iPhone 13. Agents: Good-faith exception applies. It was an iPhone linked to the same phone number. First Circuit: The 6s and 13 aren't even the same size, and the agents realized they had the wrong phone at the time. Motion to suppress affirmed.
4. A few years back IJ won a case at SCOTUS, forcing Maine to offer private school tuition without discriminating against religious education. Now in a non-IJ case, the First Circuit has confronted a follow-up question: What strings can the state place on that aid that might come into conflict with a religious school's mission? Over the course of well over 100 pages, in two opinions, the court largely upholds the denial of the schools' motions for preliminary injunctions, although one school succeeds in obtaining a PI regarding one religious liberty claim. Bonus: Pullman abstention goes down in flames repeatedly.
5. Jamaican man fighting deportation asks for bail so he can receive kidney dialysis. Second Circuit: Without getting to the merits of his pending habeas appeal, he should be temporarily released for treatment. Dissent: He can get treatment in Jamaica via a self deport.
6. New York City charges a toll for vehicles entering the Central Business District in Midtown and Lower Manhattan. Neighboring New York counties sue, alleging the toll unconstitutionally restricts the right to travel and violates the Due Process, Equal Protection, and Excessive Fines Clauses of the New York and U.S. Constitutions. Second Circuit: It does none of those things.
7. New York City ordinance forbids real-estate brokers from collecting fees from tenants based on apartments they list—which, the Second Circuit says, absolutely restricts their commercial speech and impairs the obligations of their contracts but does so in a manner that is, constitutionally speaking, okey-dokey.
8. Families of children with ADHD and autism spectrum disorder sue drug manufacturers, arguing that the manufacturers failed to warn them that prenatal ingestion of acetaminophen could cause both disorders. The district court excludes all of the plaintiffs' expert witnesses and grants summary judgment for defendants. Second Circuit: Reversed for some of the experts (including the Dean of Harvard's School of Public Health). Maybe their conclusions are wrong or a jury won't be convinced, but their testimony meets the standards for admissibility.
9. If you want to play Woke Cancellation Bingo, this Third Circuit story about a doctor who published a detailed article critiquing medical school affirmative action policies (in 2020, to an unpleased reaction by his colleagues) would be a great resource. But the last cancellation may belong to the doctor, as (over a dissent) his defamation claims against university, hospital, and others are now back in play.
10. Immigrant tries to timely e-file motion with immigration judge to reopen his removal proceedings. Electronic-filing system doesn't accept it. Then he tries to timely file a hard copy in person. Clerk refuses to accept it. Then he sends it by mail—but after the deadline. Court accepts it. Huzzah! … And then denies the motion as untimely. Fourth Circuit: Come on guys. "Filing a motion should not be a game of gotcha." (The court also gives a well-deserved shout-out to the Georgetown Law students who represented the immigrant on appeal.)
11. Allegation: Salem, S.C. post office employee goes berserk, violently attacking a woman collecting her mail—an attack enabled by the postmaster, who opened double-locked doors to aid the employee's advance. Fourth Circuit: She can pursue a narrow claim against the postmaster but nothing else. The combo of the FTCA, Westfall Act, and Bivens "sends a plaintiff … directly from the arms of Scylla to the mouth of Charybdis. The result is quite harsh and rather shocking"; take it up with Congress.
12. Prominent Maryland lawyer is charged with shambolic attempt to extort a hospital, insists on representing himself at trial. More shambles ensue, with the prominent lawyer yelling at the judge and getting jailed overnight for contempt. Fourth Circuit: And despite the prominent lawyer's buyer's remorse, the district court did not plainly err in letting him act as his own lawyer.
13. New Orleans police officer enters yard, shoots, kills 16-week-old puppy who was running toward him without growling, barking, etc. Jury: Shouldn't have done that but qualified immunity. Also, the city's policies were not to blame, but the city is liable to the bereaved owners. Fifth Circuit: New trial on municipal liability.
14. Elementary school dropoff-line dispute prompts Onalaska, Tex. traffic cop to (allegedly) jump on SUV's running board and try to drag mom out by her hair (with kids in the back and vehicle in drive). Fifth Circuit (per curiam, unpublished): It was reasonable to interpret mom tensing up her body as resisting arrest. (But no biggie b/c the officer had probable cause to arrest for other stuff.) No constitutional violation.
15. In which attorneys representing the United States attempt to persuade the Eighth Circuit that their previous settlement agreement with the plaintiff couldn't possibly forbid them from rescinding his permit because he offered to pay them money to leave him alone after they threatened to rescind his permit.
16. Last year, the Treasury Dept. ordered money service businesses in 30 zip codes along the southwest border to report all cash transactions over $200. For one MSB, the paperwork alone takes 14-17 hours a day, not counting the time it takes to gather customers' personal info, and business drops by half when customers shy away from giving their info. Ninth Circuit (over a dissent): Looks like, among other missteps, the feds acted without statutory authority. No presumption of regularity and PI affirmed. (This is an IJ case. Boom!)
17. Ninth Circuit (unpublished): Hitting a suspect in the face with a baton is deadly force, and a reasonable jury could find it was unreasonable in this case where the suspect had his hands raised and was obeying officer commands. Anyhow (over a dissent), qualified immunity.
18. Two people allege that they were sexually abused by Pushmataha County, Okla. jailers. Tenth Circuit (2025): Though the Ninth Circuit presumes non-consent between guards and inmates, we don't. Nevertheless, there are enough disputed facts to send this to a jury rather than grant qualified immunity. Tenth Circuit (2026): Though the sheriff's willful disregard for criminal sexual conduct inside the jail is inexcusable, there is no municipal liability. Concurrence: We need to overturn our precedent and presume non-consent (in a case where the argument is advanced).
19. Fourteen-year-old kicked out of Florida State Fair for unruliness is dropped off at side exit by Hillsborough County deputies, who do not (as required) alert responsible adult. Per the teen's friend, a deputy threatens them with arrest if they re-enter and tells them the only way to get to the main exit where their ride is supposed to pick them up is to cross an interstate. They try, and the teen is killed. Jury: Wrongful death but no 4A violation. Eleventh Circuit: Affirmed, as is the denial of sovereign immunity.
20. And in en banc news, the Fifth Circuit will reconsider its decision that due process requires bond hearings within 90 days for certain aliens pending their removal hearing. (For those of you following closely, there's a circuit split in this statutory and constitutional soup as to whether mandatory detention sans a bond hearing is okay.)
21. And in more en banc news, the Ninth Circuit (over eight votes and two dissentals) will not reconsider its decision that California's ban on concealed carrying of switchblade knives (in public) is consistent with history and tradition.

New case! In 2021, IJ client Gino Fiermonte, an electrician at Long Island MacArthur Airport, was severely shocked while repairing a runway sign because, according to Gino, an FAA employee negligently turned the power back on. So Gino filed suit against the FAA employee in state court. But then the feds removed the case to federal court and certified the employee was acting within the scope of her federal duties. So then the proper thing to do is to substitute the United States in as defendant and proceed under the Federal Tort Claims Act, yes? Yes! Right! But instead, the feds are trying to get Gino's case tossed out. They claim that Gino should have known to file his lawsuit against the U.S. in federal court to begin with—even though the feds (by controlling the scope-of-employment certification) control whether the case ultimately belongs in state or federal court. That can't be right, and, if it succeeds, the gov't will have concocted yet another gigantic, atextual hurdle to getting straightforward claims heard on the merits. Click here to learn more.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.

[Littlejohn] notes that the district court repeatedly pressed the Government about why it brought only one felony charge against him when far more charges were possible. But that is hardly evidence of a predetermined sentence. When the district court asked about the charging decision before the plea hearing, the district court was likely weighing the reasons for and against accepting the plea bargain (which is a judicial responsibility). Then, when the court asked about it again at sentencing, the court was likely giving the Government an "opportunity to make it clear to the public" why Littlejohn didn't face more charges.

[Footnote:] Littlejohn complains that at sentencing the district court said it was asking these questions "to help" the Government. But it's likely the court was only trying "to help" the Government inform the public about the reasons for the lenient charging decision in this high-profile case. In any event, judges are not required to ask only hostile questions at a sentencing hearing—or at an appellate argument, for that matter. See Oral Arg. Tr. at 7, Ransom v. FIA Card Services, N.A., 562 U.S. 61 (2011) (No. 09-907) (Justice Scalia: "I'm trying to help you."); Oral Arg. Tr. at 13, United States v. Tinklenberg, 563 U.S. 647 (2011) (No. 09-1498) (Justice Scalia: "I'm trying to help you."); Oral Arg. Tr. at 21, United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023) (Nos. 21-1326 & 22-111) (Justice Sotomayor: "I've never heard an attorney fighting people trying to help him."; Justice Gorsuch: "It happens all the time here."); Oral Arg. Tr. at 10, Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025) (No. 23-975) (Justice Sotomayor: "I was trying to help you."); Oral Arg. Tr. at 34, Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012) (No. 10-1016) (Justice Sotomayor: "I thought Justice Alito was trying to help you."; Justice Breyer: "He was."); Oral Arg. Tr. at 41, Martel v. Clair, 565 U.S. 648 (2012) (No. 10-1265) (Chief Justice Roberts: "No. I'm trying to help you."); Oral Arg. Tr. at 38, White v. Woodall, 572 U.S. 415 (2014) (No. 12-794) (Justice Scalia regarding Justice Breyer: "He's trying to help you, counsel.").

For more on the underlying case, see D.C. Circuit Upholds 5-Year Sentence for Leaker of Trump's and Others' Tax Returns. Thanks to Andy Patterson for the pointer.

The post Helpful Judges appeared first on Reason.com.

Petitioner, a United States Immigration and Customs Enforcement detainee, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. An immigration judge had granted Petitioner a bond of $35,000, but the bond order was stayed pending appeal to the Board of Immigration Appeals pursuant to 8 C.F.R. § 1003.19(i) (2025). Petitioner argued that the 90-day automatic stay provision in § 1003.19(i) violates the Fifth Amendment's Due Process Clause, and sought an order requiring the Government to allow him to post bond. While this lawsuit was pending, the automatic stay of Petitioner's bond order expired. The Government now represents that the bond order is back in effect and Petitioner will be released if he posts the $35,000 bond. Accordingly, the Court finds that the habeas petition is moot and dismisses it without prejudice.

There is one additional issue in this case that the Court must address. In the Government's response to the Court's initial order to show cause, it stated the following:

More recently, the Sixth Circuit has reiterated that § 1226(e) bars challenges that "ask the court to reweigh the evidence underlying a bond decision or second-guess the Immigration Judge's discretionary judgment." See Taylor v. Hott, 724 F. App'x 387, 392 (6th Cir. 2018) (district court lacked jurisdiction to review IJ's bond denial where petitioner challenged flight-risk determination) ….

The cited case, Taylor v. Hott, is not located at the identified page of the Federal Appendix. Indeed, page 387 is contained within a different opinion—Atkins v. CGI Techs. & Sols., Inc., 724 F. App'x 383 (6th Cir. 2018)—which is about commercial arbitration, not immigration bond determinations. In its research, the Court was unable to identify a Sixth Circuit case with the caption Taylor v. Hott, or any federal case containing the quoted language. Thus, it seems this citation was likely produced by generative artificial intelligence ("AI").

"It is no secret that generative AI programs are known to 'hallucinate' nonexistent cases, and with the advent of AI, courts have seen a rash of cases in which both counsel and pro se litigants have cited such fake, hallucinated cases in their briefs." "Without question, it is improper and unacceptable for litigants … to submit non-existent judicial opinions with fake quotes and citations." It should be obvious that any attorney who uses AI must scrupulously review its work product to ensure that the cited cases exist and that the citations accurately and fairly represent the underlying case law. The duty of candor towards this tribunal demands no less.

Although the Court will not presently impose sanctions for this conduct, it goes without saying that the Government must ensure its future filings with this Court do not include non-existent case law.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post Judge Faults Federal Government Lawyer for Apparent AI Hallucination appeared first on Reason.com.

The Boston Globe just published my article [gift link here] on Trump's election fraud speech from last night. Here is an excerpt:

In a speech Thursday night, President Trump claimed there have been serious breaches of election security and repeated his assertions that the 2020 election was compromised. As in the past, these remarks are utterly indefensible. And they are likely part of an illegal effort to federalize control over the upcoming midterm elections, so as to tilt the results in his party's favor. Hopefully, America's courts and federal system will continue to stymie him.

Trump claimed in his speech that some 278,000 non-citizens illegally registered to vote . There is no real evidence to support this, and even he didn't claim proof there was any significant actual illegal non-citizen voting. Decades of efforts to find such evidence — including by the right-wing Heritage Foundation — have turned up no more than a few dozen cases, over a span of several decades…

These claims are intended to bolster Trump's long-standing assertions that the 2020 election was somehow "stolen" from him. Overwhelming evidence shows the contrary. In 2020-21, Trump and his political allies filed 64 court cases challenging the results in six key swing states. As detailed in "Lost, Not Stolen," a review of these cases conducted by prominent Republican lawyers, election law specialists, and former federal judges, none of these decisions found significant evidence of voter fraud…

If some combination of Democrats and foreign powers had managed to "steal" the 2020 election while Trump was in the White House, and avoid detection in the process, one wonders why they didn't do it again in 2024, when a Democratic president was in power and in control of the Justice Department and the intelligence community. The fact that no such thing happened then is yet further evidence that it didn't happen in 2020.

The real purpose of Trump's ongoing lies about the 2020 election and election security may be to bolster his efforts to "nationalize" control of the 2026 midterm elections, so that he can skew results in his party's favor…

Fortunately, Article 1, Section 4 of the Constitution gives states primary responsibility for election administration, subject to override by congressional legislation. No current federal law gives Trump the authority he seeks. Numerous federal courts — including in cases presided over by Republican-appointed judges — have rejected his attempts to change voter ID rules by executive order and take control of state voter rolls. Courts should similarly rule against any potential efforts to use federal law enforcement agencies or — worse still — troops, to seize control of polling sites and ballots…

America's decentralized system of election administration has downsides, as well as virtues. But, as leading election law scholar Richard L. Hasen notes, it provides valuable protection against "a president hell-bent, like Trump, on election subversion." Hasen, previously an advocate of election law centralization, adds that this has led him to reconsider.…

The post My New Boston Globe Article on Trump's Bogus Election Fraud Claims appeared first on Reason.com.

[O]n the record before us, [the government defendants-Appellants] are likely to succeed on their argument that [the] generally applicable escort requirement does not constitute a "sufficiently adverse action to give rise to an actionable First Amendment claim" of retaliation. [Plaintiffs-Appellees] have not argued that the escort requirement is not, in fact, generally applicable and applied across the board to all reporters. Nor have they argued that the policy is not being implemented evenhandedly. Neither have they contended that the policy has a distinctively adverse impact on them or their news reporting ability that is different from the policy's effect on all other covered reporters.

In addition, neither Appellees nor the dissenting opinion cite a single case supporting their conclusion that this neutrally and evenhandedly applied, generally applicable policy with no demonstrated distinctive harmful impact on Appellees can, without more, constitute retaliation under the First Amendment. Finally, Appellees' claims that the escort requirement is unlawful for reasons other than retaliation have not been raised before us as a basis for denying the stay.

The court also set the case for expedited oral argument. Judge Bradley Garcia dissented:

In October 2025, the Department of Defense adopted a new, restrictive policy governing credentials for journalists at the Pentagon. The New York Times and its reporter Julian Barnes sued, and the district court issued an injunction. Within days, the Department announced a new policy that, among other things, required credentialed reporters to be escorted at all times while on Pentagon grounds. The Times and Barnes moved to compel compliance, arguing that the escort requirement ran afoul of the district court's order. The district court granted that motion. This court—based on my vote and Judge Walker's—granted the government's request for a limited stay pending appeal because the district court's original injunction "did not address" the later-imposed escort requirement and "the district court did not hold that the escort requirement independently violates" the Constitution.

The district court has now assessed the lawfulness of the escort requirement. The Times and Barnes filed a separate lawsuit directly challenging the new policy. The district court preliminarily enjoined the policy's escort requirement after determining that "it was issued to retaliate against the plaintiffs for exercising their constitutional rights."

The district court found all three elements of a First Amendment retaliation claim satisfied: (1) The plaintiffs engaged in "activity protected under the First Amendment," (2) the escort requirement is an "adverse action that would deter persons of ordinary firmness from exercising their First Amendment rights," and (3) there was a causal link between the plaintiffs' protected activity and the imposition of the escort requirement….

[R]elying on declarations from affected reporters, former Department officials, and other record materials, the district court concluded that the escort requirement "inescapably burdened" the plaintiffs' journalistic work. Specifically, it dramatically reduced their practical ability to access the premises and rendered informal and spontaneous interactions with government sources difficult if not impossible. As the district court observed, the requirement thus "made it exceedingly challenging to … cover the Department and the U.S. military from Pentagon grounds."

And for the causal link, the district court found "evidence of retaliatory motive" in "myriad statements by Department officials expressing disdain for reporting by The Times and other 'legacy' media outlets" starting "shortly after the confirmation of Secretary Hegseth and continuing through the present." Those "hostile" statements, coupled with the Pentagon's shifting and "facially dubious" rationales for imposing the escort requirement, demonstrated that the requirement would not have been adopted but for the plaintiffs' protected First Amendment activities….

The majority's decision to grant the stay apparently rests on the proposition that a policy like the escort requirement cannot constitute an adverse action if it is "generally applicable" on paper and in practice. But the majority cites no binding precedent for that proposition, and none exists. We have never held that a government policy cannot constitute unconstitutional retaliation simply because it is evenhanded. And such a holding would likely be incorrect. We have emphasized that the adverse-action inquiry poses a relatively low bar. This element is meant to screen out claims based on government actions so minor they would not "inhibit an ordinary person from speaking."

If threatening to impose a requirement like the escort requirement on one journalist would (as the district court found) sufficiently chill his speech, it makes little sense to suggest that effect evaporates if the government threatens to impose the same requirement on all reporters. Indeed, the chilling effect on a speaker with any regard for his peers may be amplified. Perhaps a policy that places a speaker at a unique disadvantage would be even more chilling in certain circumstances. But a retaliatory government policy should not be immunized simply because it is broadly and evenly applied.

The post Pentagon Journalist Escort Requirement Can Continue Pending D.C. Circuit Decision appeared first on Reason.com.

Plaintiff is an 18-year-old female who was previously enrolled at Bolingbrook High School. On November 4, 2024, at around 10:00 a.m., Plaintiff entered a girls' multi-use restroom labeled "girls' bathroom." After using and exiting a stall, Plaintiff observed a transgender student, who she was familiar with, dressed in "male-typical clothing … with no visible indication of female identity," standing in close proximity to her stall. Plaintiff feared that the student could have seen her undergarments or her exposed body through small spaces on either side or under the stall door. While Plaintiff does not allege any facts indicating the student actually saw or tried to see her exposed body, Plaintiff claims to have been "triggered" and to have experienced "intense feelings of anxiety, discomfort, and shame" from the mere possibility of being exposed.

On November 6, 2024, Plaintiff described the incident to her father, Mr. Fisher. The following day, Mr. Fisher sent a text message to the School's principal, Dr. Pascavage, to report the incident and raise concerns about Plaintiff's privacy. Dr. Pascavage responded that the transgender female student had been granted access to the girls' restroom pursuant to an Individual Development Plan, or formal plan outlining the student's gender-identity accommodations. To address Plaintiff's privacy concerns, Dr. Pascavage offered Plaintiff access to single-use staff restrooms.

During an in-person meeting with Mr. Fisher on November 12, 2024, Dr. Pascavage further elaborated that the School followed Illinois Department of Human Rights ("IDHR") guidance, titled "Guidance on Protection of Students in Illinois: A Non-Regulatory Guidance Relating to Protection of Transgender, Nonbinary, and Gender Nonconforming Students." The 2021 IDHR publication provides guidelines on complying with the Illinois Human Rights Act, "in the context of a school setting, with specific focus on how the IHRA protects the rights of transgender, nonbinary, and gender nonconforming individuals." In relevant part, the publication states:

Use of restrooms, locker rooms and changing rooms may not be restricted based upon a student's physical anatomy or chromosomal sex. A student must be permitted to access restrooms or bathrooms, locker rooms and changing rooms that align with their gender-related identity and without having to provide documentation or other proof of gender.

Under the Act, the discomfort or privacy concerns of other students, teachers, or parents are not valid reasons to deny or limit the full and equal use of facilities based on a student's gender-related identity. Instead, any student, teacher or other individual seeking more privacy should be accommodated by providing that individual a more private option upon their request, if possible. The prejudices of others are part of what the [Act] was meant to prevent. [T]here is no right that insulates a student from coming in contact with others who are different.

During continued communication with Dr. Pascavage throughout November 2024, Mr. Fisher expressed frustration with the School's policy and complained that the School's offer to allow Plaintiff's use of an alternative facility would not sufficiently address the issue.

On December 9, 2024, at a public meeting of the School District's Board of Education, Mr. Fisher raised the issue of transgender students having access to the girls' restrooms, drawing attention to gaps on the sides and below stall doors that render the interior of the stall partially visible from outside. In response to Mr. Fisher's concerns about the stall design, between December 20, 2024, and January 6, 2025, the School installed rubber strips and other opaque material on the toilet stalls in the girls' restrooms.

In January 2025, Plaintiff attempted to use the staff restroom in the School's library. Plaintiff alleges, however, that she was denied access to the staff restroom by the librarian. Discouraged, Plaintiff took deliberate care to use other girls' restrooms in the School as far away as possible from the one where the initial "incident" occurred. Further, Plaintiff used these girls' restrooms only during class hours, which she alleges, led to her losing classroom instruction time, disrupted her routine, heightened her unease, and diminished her sense of safety at the School. She further claims that this fear caused her to skip restroom visits, which Plaintiff states was "especially unsettling" during the days she had her period.

Plaintiff does not allege, however, any facts indicating that the transgender girl in question made any efforts to view her through the stall or otherwise invade her privacy. Plaintiff also does not allege that she confirmed or investigated the gender identity of any other girls she encountered in the restroom outside of the transgender girl from the initial "incident." …

The court rejected plaintiff's claim that the school had violated the Equal Protection Clause:

Plaintiff alleges Defendants' policy of allowing "male students" access to the School's female-only spaces based solely on their "self-declared gender preferences," subjects female students to privacy violations and discrimination on the basis of sex, constituting an equal protection violation….

Sex-based discrimination turns on whether conduct is permitted for one sex that is denied for the other. Plaintiff cannot claim that a policy that treats the sexes identically, discriminates on the basis of sex. As alleged in her Complaint, the District follows the IDHR's guidance on bathroom access, which confirms "[a] student must be permitted to access the restrooms or bathrooms, locker rooms and changing rooms that align with their gender identity." Thus, on its face, the School's Policy allows all students, regardless of their sex, access to the bathroom that aligned with their gender-identity. All students, Plaintiff included, are allowed access to the restroom that aligns with their gender identity, not just transgender girls; any other interpretation would ignore the fact that transgender boys, cisgender boys, cisgender girls, and gender nonconforming students are all guaranteed the same accommodations as transgender girls. Plaintiff fails to overcome the clear implication that all sexes are treated equally under the policy, and are given the exact same bathroom access.

Importantly, the Supreme Court recently cautioned courts from finding sex-based discrimination in the absence of unequal treatment, as Plaintiff requests. In U.S. v. Skrmetti (2025), the Supreme Court found that a law prohibiting certain medical treatments for transgender minors was not subject to heightened scrutiny because the application of the statute relied on age and a medical procedure, rather than sex, and did not prohibit conduct for one sex that it permitted for the other. Here, Defendants' Policy, similarly, does not prohibit conduct for one sex that it permits for the other, since ALL students are permitted to use the restroom that aligns with their gender identity. Taking all of Plaintiff's well-pled facts as true, there is no discrimination on the basis of sex….

The court also rejected plaintiff's Title IX claim:

Plaintiff alleges that the District creates a hostile educational environment by subjecting female students to the constant risk of encountering "males" in supposedly female-only restrooms, locker rooms, and showers, causing pervasive anxiety, humiliation, distress, and disruption of their education. Plaintiff further alleges that requiring her to potentially miss instruction time to access private restrooms impaired her ability to focus on her education.

Title IX protects individuals from sex-based discrimination and provides that no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance […]"A hostile-environment claim under Title IX requires allegations that conduct is severe, pervasive, and objectively offensive such that it denies equal educational access….

Again, Plaintiff[']s failure to identify any sex-based discrimination, dooms her claim. Plaintiff has not shown that Defendants' policy violates Title IX since its policy guarantees all students equal rights provided under the statute. Despite not making this showing, Plaintiff actually seeks to subject the District to further Title IX liability, by asking the Court to order a policy that relies on sex-based stereotypes—primarily the way a student "behaves, walks, talks, or dresses"—which is definitively unlawful in the Seventh Circuit. That Plaintiff asks the Court to improperly rely on sex stereotypes is evidenced by Plaintiff's insistent assertion that the student in question should be prohibited from using the girls' bathrooms for failing to "exhibit" any "outward appearance or other indication of presenting as female," as well as by her counsel's oral argument suggesting the transgender student's "male clothing" and "baggy clothes" "obviously" meant she could not identify as female—despite baggy clothes being a common style worn by teenagers across all genders.

Additionally, Plaintiff's argument that Title IX actually mandates sex-segregated spaces is wholly unsupported. Plaintiff argues that the recognition of sex-segregated spaces in both federal statutes and interpreting cases vests affirmative statutory requirements to provide Plaintiff with the relief she requests. Plaintiff fails to acknowledge, however, the discretionary language contained in Title IX, which explicitly states "[n]othing contained in this chapter shall be construed to prohibit any educational institution receiving funds under this Act from maintaining separate living facilities for the different sexes." The Department of Education's implementing regulations further state that school's "may provide separate toilet, locker room, and shower facilities on the basis of sex" so long as they are comparable.

The statute clearly provides schools with the option to maintain sex-separate facilities, but by no means requires schools to do so. Plaintiff seeks to recharacterize plainly discretionary language to mandate that Defendants exclude transgender students from the restroom matching their gender identity, despite no such mandate….

Finally, Plaintiff asks the Court to determine what effect, if any, the Supreme Court's June 30, 2026, decision in Virginia v. B.P.J., has on its present ruling. In B.P.J., the Supreme Court determined states may maintain separate women's and men's sport teams based on "biological sex." Plaintiff argues, B.P.J.'s determination that "sex" in Title IX be understood to mean only "biological sex" bears directly on the merits of her claims since Defendants "fail[ ] to segregate the sexes at all" "with female students bearing the entire burden of this failure."

The Court's decision is not impacted by B.P.J., however, because the Supreme Court explicitly limited its decision to the sports context. See (slip op. at 14) ("the only question here is whether schools may limit women's and girls' sports to biological females."). Furthermore, even if the decision in B. P. J were applicable in this context, which it is not, it only holds that states may maintain separate sports teams based on biological gender, it does not hold that states are required to do so. Finally, any clarification outlined in B. P. J still does not resolve Plaintiff's threshold failure to allege that she or any other student was treated differently or provided a lesser facility based on sex, biological or otherwise, because Defendants' Policy is applicable to all genders and not exclusionary of any….

Alexander Thomas Myers, Darcy L. Proctor, and John M. O'Driscoll (Tressler LLP) represent the school district.

The post Court Rejects Claim That Allowing Allegedly Biologically Male Student in Girls' Restroom Violates Equal Protection Clause and Title IX appeared first on Reason.com.

In 2017, Charles Littlejohn obtained a job as a consultant to the Internal Revenue Service so that he could steal and leak the tax returns of President Donald Trump. He says he "felt that the American people should have the opportunity to see the tax returns of the sitting president before they decided on how they were going to vote." … Two years into his elaborate scheme, in 2019, Littlejohn gave President Trump's tax return and return information to a reporter for the New York Times…. [J[ust weeks before the 2020 presidential election, the New York Times began publishing articles based on what Littlejohn had stolen.

That was, however, only one of Littlejohn's grand plans. He says he "also felt that taxpayers as a whole deserved to know just how easy it was for the wealthiest among us to avoid paying into our system." So he used his "skills to systematically violate the privacy of thousands of innocent people" by stealing the tax returns and return information of about 600 entities and about 7,600 of the wealthiest Americans. He then leaked what he stole to ProPublica, which used data regarding at least 152 of his victims in about 50 articles.

As a result of Littlejohn's crime, his victims lost business. They were disparaged countless times. And their families were physically threatened. See A 199–201 (letters on behalf of victims who described "great distress" to "me and my family"; "reputational damage"; "economic impact"; "patently false assertions about the tax payer's tax compliance"; personal "threat[s]" to "our family"; "disparage[ment] countless times"; "lost business"; "reputational damage"; putting "our family's safety" in "jeopard[y]"; "very real threats"; "mental, emotional, and reputational consequences").

To this day, ProPublica is sitting on the private, as-yet-unpublished data of other taxpayers stolen by Littlejohn. But those taxpayers continue to fear that ProPublica will publish their data in the future….

In 2023, the Government and Littlejohn notified the district court that he intended to plead guilty to one count of disclosing without authorization tax returns and return information in violation of 26 U.S.C. § 7213(a)(1).

A day before Littlejohn's plea hearing, the district court held an off-the-record meeting in chambers with counsel for the Government and Littlejohn. The court said it was "perplexed" by the Government's decision not to charge Littlejohn with "multiple charges carrying a much higher possible sentence." Littlejohn's counsel did not object to anything about the meeting.

After Littlejohn pleaded guilty, the Government filed a memorandum arguing for the maximum sentence—five years in prison. In response, the district court emailed counsel for the Government and Littlejohn, again without objection, to request that they prepare to address whether it is "per se unreasonable to impose a sentence of a maximum term, outside the guidelines, to a defendant that pled guilty, cooperated with the Government, and accepts responsibility." The court said it had "not made a sentencing decision and will of course hear all argument on the appropriate sentence, including the appropriate impact of Mr. Littlejohn's cooperation and acceptance of responsibility."

In 2024, at the start of Littlejohn's sentencing hearing, the district court told him, "I know that this may well be the worst morning of your life or one of them. And I want you to know that I know that and I'm sympathetic to it." The court added:

I wish more than you can possibly know that we were meeting under different circumstances, because I have read the 29 letters from your friends and family. And they uniformly speak to a person of immense intelligence, deep caring, and unwavering loyalty. And I think anyone who has read those letters knows that to call you a friend is a privilege.

The court then continued to address Littlejohn directly and said, "I want you to know that I have studied and thought and struggled deeply about your sentence. And there have been very few days since I took your plea that I have not thought about your sentence in some way." The court circled back to its belief that Littlejohn had "repeatedly answered the call to help others" and added that his "actions were guided, however misguided the thought was, by a genuine belief of doing the right thing." But the court also said that, "whatever the motivation," Littlejohn had "target[ed] the sitting President of the United States," which "was an attack on our constitutional democracy." So the court intended to impose a sentence "with a firmness of purpose that such an attack demands."

The court imposed the statutory maximum five-year sentence (which was an upward departure from the sentence recommended by the Sentencing Guidelines, which was "one year to one-and-a-half years"). The D.C. Circuit held the sentence was reasonable; some excerpts of the analysis:

Littlejohn has not shown that the district court predetermined his sentence. Rather, the record reflects that the court approached its decision with an "open mind." At the sentencing hearing, the court expressed sympathy for Littlejohn and discussed "the 29 letters from [his] friends and family" that "uniformly [spoke] to a person of immense intelligence, deep caring, and unwavering loyalty." The court later said it had "studied and thought and struggled deeply about [Littlejohn's] sentence," even revealing that there had "been very few days since [his] plea that [the court had] not thought about [his] sentence in some way." And throughout the hearing, the court showed it "was listening to what [the parties] were saying," by asking probing questions that would have been unnecessary if the sentence had been predetermined.

It is true that the court expressed "strong feelings" about Littlejohn's crime and likely arrived at the sentencing hearing with a "preliminary idea" about an appropriate punishment. But that is neither unusual nor untoward, especially when the court's words and actions indicated a "mind[ ] open to new facts, new arguments, and new choices." …

[Littlejohn] notes that the district court repeatedly pressed the Government about why it brought only one felony charge against him when far more charges were possible. But that is hardly evidence of a predetermined sentence. When the district court asked about the charging decision before the plea hearing, the district court was likely weighing the reasons for and against accepting the plea bargain (which is a judicial responsibility). Then, when the court asked about it again at sentencing, the court was likely giving the Government an "opportunity to make it clear to the public" why Littlejohn didn't face more charges.

Littlejohn argues that the district court based his "sentence on its mistaken belief that his crime was politically motivated, 'targeted' a sitting President, 'attacked' constitutional democracy, and was intended to cause harm to thousands of individuals whose tax records he disclosed to investigative reporters." But those four findings were not clearly erroneous.

First, his crime was politically motivated, at least in part because one of his motives was to change tax policy by (in Littlejohn's words) showing "just how easy it was for the wealthiest among us to avoid paying into our system." Second, his crime was an attack on a sitting president because he wanted to inform voters about (in his words) "the tax returns of the sitting president before they decided on how they were going to vote." Third, his crime was an attack on our constitutional democracy because his goal was to influence an election through illegal activity and because (in his words) his crime "undermined the fragile faith that we place in the impartiality of our government institutions." And fourth, his crime was intended to harm thousands of taxpayers because (again in his words) he "systematically violate[d] the privacy of thousands of innocent people." …

The district court did not abuse its discretion when it understood the statutorily mandated sentencing factors in 18 U.S.C. § 3553(a) to require a five-year sentence…. Here, the offense was far more serious than most unlawful disclosures of tax records. Littlejohn "target[ed] the office of the President of the United States," which meant he "target[ed] democracy." Plus, he launched "an intolerable attack on the personal lives of thousands of Americans" on a scale "unparalleled in the IRS's history." And "because Mr. Littlejohn unlawfully disclosed the tax return information of thousands more individuals" than the 152 victims whose information has already been published, more "individuals' information could be published in the future. In other words, the scope of the harm is not necessarily done or even known." …

Littlejohn [also] "made a series of calculated decisions, over two to three years, to willfully violate the law. Most stunning, Mr. Littlejohn has admitted that he sought to work as an IRS consultant with the hope and expectation of accessing and disclosing then President Trump's tax information." It was therefore reasonable for the district court to conclude that only the statutory maximum would sufficiently "deter government officials and contractors from making those same deliberate decisions to take the law into their own hands." …

William C. Winn (DoJ) argued on behalf of the government.

The post D.C. Circuit Upholds 5-Year Sentence for Leaker of Trump's and Others' Tax Returns appeared first on Reason.com.

Today, the Jotwell website (to which I am a regular contributor) published my review of Anna Law's important new book Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants.  Here is an excerpt:

Political scientist Anna O. Law is one of the leading experts on the history and development of American immigration policy…. Her new book builds on her previous scholarship and that of others to bring together three interlinked topics that are usually considered separately: the development of immigration law and policy in the early republic, policies on slavery and internal migration, and policy towards Native Americans.

Law makes the by-now familiar point that, during the first century of American history, power over international migration overwhelmingly resided in the hands of state governments, rather than the federal government. In a more novel and distinctive move, she links this to the desire of many Founding-era Americans and subsequent generations to preserve state authority over internal migration, slavery, and dealings with Native Americans.

Southern slave states sought to retain control over importation of slaves and in-migration of free Blacks—ensuring a steady supply of the former, while restricting the latter, lest they upset the system of racially based slavery. Some northern states also sought to keep out or at least restrict free Blacks, out of racism. Many states further tried to restrict entrance by "paupers"—people believed likely to become dependent on welfare and charity….

All of this helped lead to a Constitution that did not give the federal government much, if any, control over migration, at least in peacetime. States wanted to retain that control for themselves. As Law points out, the Constitution doesn't clearly assign power over migration to any level of government. But the historical evidence suggests the general understanding in the Founding era was that international and domestic migration were largely under state control.

One can put the point even more strongly: Given the extensive and detailed enumeration of other federal powers in the Constitution—including such relatively minor ones as "fix[ing] the standard of weights and measures" and establishing "post roads"—it would be extremely surprising if the Founders gave the federal government so major a power as that of immigration restriction without making it explicit….

Law concludes that federalism largely failed to enhance liberty when it comes to international and internal migration. She correctly emphasizes the many restrictionist aspects of state control, often motivated by racial or ethnic bigotry. She notes, also, that neighboring states sometimes imitated each other's restrictive policies rather than countering them.

Law is certainly right that state policy on both internal and international migration during the first century of American history was far from a paragon of virtue and inclusion. But other aspects of her account strongly suggest that leaving this policy area under state control was still likely better than federalization would have been.

Variation between states often worked to the advantage of migrants. As Law describes, ship owners and employers often arranged to land new immigrants in states with less restrictionist polices. From there, they could move on to other states—including those with tighter restrictions on landing. Moreover, as Law outlines in one of the more insightful and original parts of her account, the state of New York—which, in the nineteenth century as now, had the single biggest East Coast port—had very open policies, with few restrictions on migration. Immigrants and shipping lines took advantage of that….

Law also may somewhat overstate the extent to which racial and ethnic discrimination guided immigration policy. Undoubtedly, there was a great deal of that. But many of the Founders also took Enlightenment liberal ideology seriously, and recognized that it implied an open immigration policy.

In his General Orders to the Continental Army, issued at the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions…."  Jefferson, Madison, and others said similar things. This talk was backed by actual policy at the federal level, and in more liberal-minded state governments.

When it comes to non-white immigrants, as Law notes, the Naturalization Act of 1790, and succeeding legislation until after the Civil War, limited citizenship to whites. That was undoubtedly caused by a combination of racism and fear that an increasing population of Black immigrants would imperil racially based slavery. But this restriction did not prevent non-white migrants from coming to the US and living and working here….

In sum, leaving immigration policy largely to state governments likely led to substantially more open immigration than might otherwise have been the case, and the Founders' liberal Enlightenment ideals had some real impact. At the same time, Law is right to point to the many severe deviations from those ideals, especially at the state level and with respect to Blacks….

Law's new book is essential reading for anyone interested in the constitutional and political history of American migration policy.

The post My New Jotwell Review of Anna Law's Book "Migration and the Origins of American Citizenship" appeared first on Reason.com.

In Germany, an artist and activist was arrested multiple times, once for wearing a Palestinian flag and again for holding a sign that read "from the river to the sea, we demand equality." In France, a mayor was held criminally liable, not for what he said, but for failing to remove Islamophobic comments posted by others beneath one of his Facebook posts. In Finland, a member of Parliament faced criminal charges for criticizing her church's support for gay pride events, citing a Bible verse.

Such cases are not exceptional among European Union member states. In many places, they are standard practice.

Yet despite already possessing some of the democratic world's most expansive and actively enforced hate‑speech laws, the European Commission has proposed adding hate speech to the EU's list of "EU crimes" under Article 83(1) of the Treaty on the Functioning of the European Union. In 2020, the European Commission (Commission) President Ursula von der Leyen proposed making hate speech and hate crime European Union (EU)-level offenses. The proposal is framed as part of the Union's broader efforts to promote equality, inclusion, and non-discrimination. Yet it also forms part of a wider trend within EU institutions and Member States, namely a growing belief that expansive restrictions on expression are necessary to protect democratic values, counter extremism, and address social harms.

Since 2021, the Commission has reaffirmed the initiative in formal communications and public statements, with strong support from the European Parliament and other EU bodies, although unanimity in the Council of the European Union has not yet been secured. In its 2026–2030 Anti-Racism Strategy, the Commission signaled that, given the lack of progress, it is considering a legislative initiative to harmonize definitions of online hate offences by drawing on existing areas of crime covered by Article 83(1) of the Treaty on the Functioning of the European Union (TFEU). The shift from treaty expansion to reliance on the existing legal authority of Article 83 reflects not a retreat from harmonization, but a change in legal technique. Where unanimity failed, pursuing similar objectives through digital or computer-crime competences warrants scrutiny as a potential competence-stretching bypassing Member State resistance.

At the time of this report, the proposal has stalled due to a lack of unanimity in the European Council. But the Commission has signaled a narrower, "online‑only" route: a legislative initiative under existing Article 83(1) crime categories (e.g., computer crime) to harmonize definitions of online hate offences. In practice, this would still embed criminal prohibitions more deeply into national criminal law and EU digital enforcement frameworks. It also raises questions about whether speech that might be considered legal when said online suddenly becomes subject to criminal penalties if posted online.

The Commission seeks to justify the new initiative by pointing to an increase in hate speech and hate crimes across the EU. It also highlights divergent national definitions and enforcement practices, arguing that fragmentation undermines victim protection, creates enforcement gaps, and sends "mixed messages" about the seriousness of hate speech. It thus frames the proposal not as a novel expansion but as the logical next step in building a coherent European response that would enable the EU to address serious forms of hate speech more effectively, particularly online.

While it may be unclear how a EU-wide criminalization of hate speech will ultimately take shape, the Commission's proposal fails to meet the foundational requirements of legality, necessity, and proportionality under both European and international human rights law. It further finds that the empirical assumptions underpinning the initiative are unsubstantiated and, in some respects, contradicted by available evidence.

Legality: The principle of legality requires that criminal offenses be formulated with sufficient clarity and precision to enable individuals to regulate their conduct and to foresee, to a reasonable degree, the legal consequences of their actions. This requirement is especially stringent in the case of speech, because uncertainty itself chills expression.

The European Commission's proposal offers no conceptualization of "hate speech." Instead, it relies on broad, vague, and varying moral, identity-based, and sociological categories. The European Parliament has further encouraged the adoption of an open-ended list of protected characteristics, creating a system in which virtually any political, social, or ideological group could invoke criminal law to shield itself from alleged hate speech. If such definitional vagueness is adopted in any subsequent directive, then it will be incompatible with legal certainty, invite arbitrary enforcement, and risk chilling democratic debate on topics of public interest across all 27 Member States.

Necessity: Necessity requires showing that criminalization at the EU level is indispensable, and that less intrusive measures are insufficient to address the identified harm.

The Commission has not demonstrated that EU-level criminalization or harmonization of online hate offences is necessary. Member States already rely on extensive criminal and regulatory tools, including national speech offences, the 2008 Framework Decision on combating racism and xenophobia through criminal law, and the Digital Services Act.

Moreover, the political rationales underpinning the initiative have shifted over time, from the COVID-19 pandemic to post-October 7 tensions, suggesting a sense of urgency driven by the prevailing political climate rather than by a demonstrable legislative need. And empirical research provides little evidence that the criminalization of hate speech reduces hatred or violence. The empirical literature does not establish that broader criminalization reduces hatred or violence in stable democracies, and it identifies plausible counterproductive dynamics (polarization, grievance narratives, displacement). Conversely, stronger expressive freedoms are associated with higher tolerance and lower social conflict in democratic settings.

Proportionality: Proportionality requires that restrictions on expression pursue a legitimate aim using the least intrusive means available. Criminal sanctions represent the most severe form of state interference with speech and therefore demand especially compelling justification. Even under the European Court of Human Rights' comparatively deferential approach to national hate speech laws, criminal sanctions must remain proportionate and narrowly tailored.

While the Commission's Communications briefly acknowledge the importance of freedom of expression, they omit core safeguards required under International Human Rights Law, including intent, imminence, and likelihood of harm. The proposal thus falls short of the strict incitement standard set out in Article 20(2) of the International Covenant on Civil and Political Rights, which must conform with the strict requirements for restricting freedom of expression under Article 19. Article 20(2) mandates only the prohibition of any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence, as interpreted by the Rabat Plan of Action.

As a result, the proposal risks criminalizing even "shocking, offensive, or disturbing" speech that is protected under Article 10 of the European Convention on Human Rights (the right to freedom of expression). In practice, this could expose journalists, academics, artists, politicians, activists, and others to criminal liability for expression that is currently lawful in many Member States. And because the Digital Services Act defines "illegal content" by reference to EU and national law, an EU-wide regime harmonizing hate speech or online hate offences would expand platform removal and risk mitigation duties at scale, strengthening incentives to over remove lawful but controversial speech—especially where automated systems struggle with context (satire, minority speech, political critique).

An online-only offence would also risk creating a two-tier criminal regime: Speech that is lawful when delivered offline could trigger criminal liability once posted online. Because many contemporary prosecutions concern online comments, Member States would face strong legal and political pressure to align their general criminal codes with the online definition, effectively achieving the criminal law harmonization that some States have resisted. If they do not, the result is unequal treatment and "digital disappearance." For instance, a lecture could be lawful in a hall and reportable in the press yet be removed from social media (and even expose the speaker or person posting the lecture on social media to prosecution) when uploaded.

International Effects: The proposal also risks reshaping global norms. European approaches to online speech and hate-speech regulation already exert significant influence on countries with weak rule-of‑law protections. Laws in Russia, Turkey, Venezuela, and other jurisdictions have explicitly cited European models when criminalizing or suppressing dissent—even when the effect of implementing the European models in the political systems of those countries is much more speech-restrictive than it would be in Europe. Through the so‑called "Brussels Effect," an EU‑level regime harmonizing online hate offences would further entrench this dynamic, irrespective of the European Union's pro‑democratic intentions.

A More Effective and Rights-Compatible Alternative: Considering the broad range of legal tools already available to Member States to address harmful speech, the European Union should prioritize non-punitive interventions such as counterspeech. This method can foster social resilience without compromising the right to freedom of expression, which underpins democratic life and serves as a safeguard against government overreach, even when pursued with well-intentioned aims.

At a time of heightened political polarization and democratic backsliding, the European Union must reaffirm its commitment to open debate, pluralism, and restraint as a cornerstone of democratic society. The Commission's proposal risks normalizing a model of speech governance that suppresses democratic debate rather than strengthening it. The European Union should regard freedom of expression as an essential safeguard of freedom and democracy—not a "risk" to be managed.

* * *

Rather than strengthening democratic resilience, EU-level criminalization of hate speech or harmonization of online hate offences risks entrenching overbroad enforcement, chilling lawful expression, and amplifying the very social tensions it purports to address. Accordingly, the EU should focus on strengthening rather than weakening freedom of expression and ensure that the criminalization of hate speech is used only as a last resort and in ways that complies strictly with the requirements of legality, necessity and proportionality. The EU should also refocus its crucial efforts to combat hatred and discrimination with an increased emphasis on using non-restrictive means such as counterspeech and education.

Our analysis proceeds from the basic premise that all member states of the EU criminalize certain forms of hate speech and that such criminalization, subject to balancing against the human right to freedom of expression, is both required and compatible with EU law and International Human Rights Law. Accordingly, we assume for our purposes that the repeal of European hate speech laws is both legally and politically unfeasible, even if there are compelling normative and empirical arguments in favor of such a maximalist position. Instead, we examine the proposal through the foundational principles governing restrictions on freedom of expression in European and International Human Rights Law (IHRL): legality, necessity, and proportionality. We assess whether EU-level criminalization is compatible with these standards, whether the need for such a proposal is supported by evidence, and the proposal's implications for democratic debate, online expression, and Europe's broader global influence.

In the following Parts, we situate the initiative's institutional trajectory (Part I); assess its legality, necessity, and proportionality under European and international human rights standards (Part II); analyze Europe's existing hate-speech landscape and escalation dynamics, including the DSA multiplier (Part III); test the proposal's empirical premises (Part IV); examine external diffusion through the "Brussels Effect" (Part V); and develop rights-compatible alternatives (Part VI).

The post Journal of Free Speech Law: "A Cure Worse than the Disease: Why the EU's Proposal to Criminalize Hate Speech Violates Freedom of Expression—and Won't Reduce Intolerance or Extremism," by Jacob Mchangama & Natalie Alkiviadou appeared first on Reason.com.

Associate Justices Elena Kagan and Amy Coney Barrett testified before Congress this week.

Much of the press coverage and online commentary has focused on the justices' discussion of their need for greater security and increasing threats to the federal judiciary, with a particular focus on Justice Barrett's comments on her personal experience. Contrary to the claims of some "conservative" influencers, Justice Barrett did not say anything suggesting such threats--including the swatting attempt on her home--had affected her work or decision-making. She actually said the opposite, that all of the justices "continue to do their jobs without fear or favor."

In the House, the justices were asked about the Court's handling of requests for interim or emergency relief on the so-called "shadow docket." The exchanges here are interesting, not least because Justice Kagan said it is no longer appropriate to use the "shadow docket" label.

Here is an excerpt from the transcript.

REP. HOYER: Let me go to -- and I'm not asking you about the substance of decisions, but I am asking you. There has been a substantial increase in what I guess we call shadow decisions. Is that a budget-related or policy-related phenomenon?

BARRETT: Well, let's see. I think that litigants have long had the ability to seek interim relief from the court, but I think you are certainly right, Ranking Member Hoyer, that we have seen a big change in the volume and the nature of such requests.

The court is doing its best to adapt and respond. I think it is a policy question, not so much a budget one.

I don't know if you have additional thoughts.

KAGAN: I am sure there will be additional questions.

(LAUGHTER)

HOYER: Does that impact on the transparency, which you referred to not putting up fences so that people had access?

There are concerns, obviously, that these shadow dispositions impact adversely on the knowledge the public has about how the court makes its decisions and who is making what decisions. Do you want to comment on that?

KAGAN: Ranking Member Hoyer, there are definitely issues with respect to the emergency -- we call it the emergency docket. Some of us call it the interim docket. I -- it's a terminology nightmare. I call it the emergency docket. And there are definitely questions about how it is appropriate to use that docket, when it's appropriate to use that docket, the standards to be applied, the way those standards actually work out in individual cases.

And you see that in some of our decisions, because we are, in many, if not most of these cases, not unanimous. There will be a majority and a dissent. The reason I think it is probably not appropriate, at least not now, to call it the shadow docket, is because we have done, I think, a better job in the recent past of, where appropriate, and it's not always appropriate, but where appropriate, explaining ourselves, at least to a moderate degree.

I think if you had asked me this question a year ago, I might have said that there would be -- there were some cases, and, in fact I did say, I had said in some public events that there were some cases where we did so little explanation of what lay behind our order that lower courts had a great deal of difficulty trying to figure out what that order was.

Were we saying something about the merits of the case? Were we saying about -- something about who had standing to contest the merits? Were we saying something about appropriate remedies? Nobody knew.

I don't think that that's so much a problem anymore. I think that, as we have gotten more experienced in these constant requests that are coming to us about requests for emergency relief, that we better recognize that at least sometimes there is a need for additional information.

And we have issued opinions, and sometimes majority and dissenting opinions accordingly.

The post Justice Kagan Says Don't Call It the "Shadow Docket" appeared first on Reason.com.

 Plaintiffs are observant Jewish professors at Kingsborough Community College (Kingsborough), which is part of CUNY [City University of New York]. Defendant Professional Staff Congress (the Union) is the labor union for the faculty. Defendant the New Caucus of the Professional Staff Congress (New Caucus) is a political party of the Union. [Defendants] Wetzel and Perea were professors at Kingsborough and members of the New Caucus.

On February 26, 2021, plaintiffs filed this action alleging … hostile work environment discrimination on the basis of religion[,] … retaliation [for making discrimination complaints], … [and] assault and false imprisonment.

Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, anti-religious discrimination from a particular segment of fellow faculty members who are the leaders of a faculty group called the Progressive Faculty Caucus of Kingsborough Community College (PFC) and are also members of the New Caucus. Plaintiffs claim that the New Caucus members collaborated with the PFC members to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs, and others at Kingsborough. Plaintiffs allege that Wetzel and Perea actually participated in, and aided and abetted, the conduct giving rise to their discrimination and retaliation claims.

Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that the PFC denied entry to every observant Jewish applicant, including Lax; that the PFC and the New Caucus members lobbied against Lax and other observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members, including Lax; that the PFC and the New Caucus members wrote in a communist newspaper regarding their "struggle" against a "network of Zionists" among the faculty at Kingsborough, and made similar comments in a publicly distributed campus survey; that there were discussions between Wetzel and others that observant Jews were undesirable for PFC membership; that Perea engaged in a malicious and relentless campaign to get Goldstein fired because he was a Zionist; that an internal PFC email mentioned the need to "bring violence to the Zionists on campus"; that anti-Semitic flyers were distributed on the Kingsborough campus; that a portrait of Goldstein's father was defaced; that nails were found in the tires of cars belonging to Lax and Goldstein; and that the PFC members called for plaintiffs' removal from their jobs at Kingsborough.

[Defendants] Wetzel … and Perea[ cross-claimed, arguing, among other things,] that CUNY is a government entity directly subject to the First Amendment … and that, in addition, CUNY has promised to protect their academic freedom and freedom of speech in assertions made in its contract with them, in its faculty handbook, on its website, and elsewhere, on which they relied to their detriment. [Their cross-claim] further alleges that Wetzel and Perea have used their academic freedom and First Amendment rights to utter progressive political views and criticism of [plaintiff] Goldstein, which plaintiffs claimed were anti-Semitic. It also alleges that Wetzel and Perea's political criticism of Israel is not anti-Semitic, and that the complaint's specific assertions against them regarding their alleged actions of anti-Semitism are frivolous.

In addition, Wetzel and Perea's second cross-claim alleges that plaintiffs have complained to CUNY about them using available processes and procedures, such as making administrative complaints of discrimination, asserting that they were a danger or security risk to plaintiffs and the CUNY community, and stating that they breached other CUNY codes and rules. It asserts that plaintiffs' intentions that motivated all of their initiatives against Wetzel and Perea are to punish them and retaliate for their politically progressive views and criticism of Goldstein. It alleges that "CUNY has permitted and facilitated such retaliation by its failure to supervise [p]laintiffs and to protect [their] academic freedom."

Wetzel and Perea, in this cross-claim, state that for example, when plaintiffs filed United States Equal Employment Opportunity Commission (EEOC) complaints implicating them in organizing an anti-discrimination event for a Friday night (the Friday Night Event), with the purpose of excluding Sabbath-observant Jewish members, CUNY failed to give them notice that these EEOC complaints had been filed. Wetzel and Perea state, upon information and belief, that CUNY also failed assertively to protect their interests and academic freedom at the EEOC. They allege that plaintiffs' retaliatory measures were carried out with CUNY's complicity and have succeeded in shutting down their free speech and academic freedom, since for example, the Friday Night Event was cancelled….

The court rejected the cross-claims, reasoning that, among other things:

Wetzel and Perea … assert that CUNY has permitted and facilitated retaliation by plaintiffs by its failure to supervise plaintiffs and to protect cross-claimants' academic freedom. However, they do not specify how CUNY failed to supervise plaintiffs and how such alleged failure amounts to a violation of the First Amendment. This cross claim is also devoid of any factual allegations as to how Wetzel and Perea's interests and academic freedom were not protected by CUNY. While Wetzel and Perea allege that CUNY did not give them notice that EEOC complaints had been filed against it, they fail to cite to any legal authority indicating that CUNY was under any legal obligation to provide them with such notice.

To the extent that Wetzel and Perea purport to assert that CUNY was obligated to discourage plaintiffs from "using available processes and procedures, such as the filing of administrative complaints of discrimination," including filing EEOC complaints, any such conduct by CUNY could constitute a violation of federal, state, and local anti-discrimination law. See Vance v Ball State Univ. (2013) (in an action brought by a university employee against a university, the U.S. Supreme Court stated that evidence that an employer "effectively discouraged complaints from being filed" are relevant to employer liability for Title VII claims for hostile work environment and retaliation for an employee's complaints about racial harassment).

That seems correct to me, though I think the judge may have erred in this aside about academic freedom:

Academic freedom generally "encompasses concepts like the University's right to make its own rules concerning academic standards, … its prerogative to determine for itself on academic grounds who may teach, … its right to set its own criteria for promotion and then to evaluate a candidate's fitness for promotion under them, … and so on." Heim v Daniel, 81 F.4th 212, 231 (2d Cir. 2023) (internal quotation marks and citations omitted). While Wetzel and Perea are professors, and not a university, they, in any event, fail to allege how CUNY did not protect their academic speech or free exchange of ideas in the classroom.

The suggestion that, under Heim v. Daniel, only "a university" and not "professors" enjoy "academic freedom," seems inconsistent with Heim's acknowledging "the wealth of authority championing individual educators' interest in academic freedom."

 The court also rejected Wetzel's and Perea's contract claims, both on the grounds that the internal rules that were allegedly violated weren't binding contracts, and on the grounds that "Wetzel and Perea … fail to allege what actions plaintiffs took in violation of [those rules] or how CUNY tolerated, accepted, or facilitated any of those actions":

Wetzel and Perea rely upon the general policy statement preceding the Henderson Rules, which provides that academic freedom and the sanctuary of the university campus "cannot be invoked by those who would subordinate intellectual freedom to political ends, or who violate the norms of conduct established to protect that freedom." They also rely upon Rule 1 and Rule 5 of the Henderson Rules.

Rule 1 of the Henderson Rules provides:

"A member of the academic community shall not intentionally obstruct and/or forcibly prevent others from the exercise of their rights. Nor shall he [or she] interfere with the institution's educational processes or facilities, or the rights of those who wish to avail themselves of any of the institution's instructional, personal, administrative, recreational, and community services."

Rule 5 of the Henderson Rules provides:

"Each member of the academic community or an invited guest has the right to advocate his position without having to fear abuse, physical, verbal, or otherwise, from others supporting conflicting points of view. Members of the academic community and other persons on the college grounds shall not use language or take actions reasonably likely to provoke or encourage physical violence by demonstrators, those demonstrated against, or spectators."

The Henderson Rules do not set forth any specific disciplinary action, procedure, or remedy that CUNY is required to follow in responding to an alleged violation of such rules. Instead, the Henderson Rules provide that the President of the CUNY Board holds "full discretionary power in carrying [the Henderson Rules] into effect." The court also notes that in the "Additional Policies" section of the Henderson Rules, it sets forth that "[a]s a public university system. CUNY adheres to federal, state and city laws and regulations regarding non-discrimination." Thus, assertions that CUNY should have enforced the Henderson Rules by stifling plaintiffs from complaining of religious discrimination against them would violate this policy….

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On July 9, the Seventh Circuit decided Barnett v. Raoul, upholding Illinois' ban on AR-15 rifles.  Maybe it hadn't received the memo that the Supreme Court granted cert on June 30 on the Seventh Circuit's decision in Viramontes v. Cook County, involving the identical issue of whether an AR-15 ban violates the Second Amendment?  Deciding Barnett gives the appearance of the Seventh Circuit filing the equivalent of an amicus brief in support of its prior decision in Viramontes.  (Cert was also granted in Grant v. Higgins, which concerns Connecticut's similar ban, see my post here.)

While always ready to uphold any restriction on Second Amendment rights, on July 1 the Ninth Circuit vacated submission in Miller v. Bonta, involving California's similar ban, pending the Supreme Court's resolution of the issue.  By contrast, the Third Circuit on July 6 invited supplemental briefs to be filed in its en banc proceeding of Cheeseman and Ass'n of N.J. Rifle & Pistol Clubs, both versus Attorney General of New Jersey, regarding New Jersey's AR-15 ban.  The briefs would address the effect of the Supreme Court's recent decisions in Wolford and Hemani.  If the court finds the New Jersey law unconstitutional, it will give the Supreme Court a contrasting view to the other appellate decisions that have uniformly upheld the bans.

A look at Barnett on the merits exhibits a doubling down of questionable premises.  U.S. District Court Judge Stephen McGlynn oversaw a four-day bench trial and held that the Illinois ban violates the Second Amendment, but the Court of Appeals rejected the lower court's factual and legal conclusions.  What is amusing (perhaps shocking) is that it was the Court of Appeals that had previously instructed the district court to hold a trial on various issues, but then the same Court of Appeals rejected the lower court's findings. This raises the question of what was the point of the trial?

In its opinion by Judge St. Eve and joined by Judge Easterbrook, the Barnett court assumed that the banned rifles are "arms" under Bruen step one, but found the ban to be consistent with "the principles that underpin the American regulatory tradition" under step two.  Ignoring the fact that the Supreme Court had already decided in Heller that the historical tradition of firearms regulation permitting an arms ban is whether the arm is "dangerous and unusual," the Seventh Circuit went on to do their own analysis as if Heller's binding precedent governing arms bans did not exist.

The court focused "on a leading example of this tradition: regulations of the Bowie knife—or, as one Reconstruction-era court called it, the 'instrument of almost certain death.' Cockrum  v. State, 24 Tex. 394, 402 (1859)."  Disregarding that Reconstruction only began in 1866, seven years after this antebellum decision, Cockrum involved a Texas law providing that use of a Bowie knife in an unlawful homicide constituted murder.  It was no analogue for a ban on peaceable possession: "The right to carry a bowie-knife for lawful defense is secured, and must be admitted."  The next sentence after the snippet quoted by Barnett refers to the person "who carries such a weapon, for lawful defense, as he may," who is liable for "an increased penalty … affixed to the abuse of this right, so dangerous to others."

Barnett goes on to refer to laws, which existed mostly in the Southern states, that largely regulated the concealed carry of Bowie knives.  No possession bans existed. And the same laws typically restricted the concealed carry of pistols.  The court addressed one law that purportedly went over the line – Georgia's ban on carrying pistols and Bowie knives. That law, however, allowed the open carrying of Bowie knives (see Section 4), while barring completely the carrying of pistols. What is more, the Georgia Supreme Court in Nunn v. State (1846) declared the ban on carrying pistols to be violative of the right to bear arms.  That was because it banned open carry as well as concealed carry.  But "Nunn is only one case," quips Barnett, which is not a surprise as no other state had a total carry ban law.  Not to mention that Nunn was endorsed by Heller and Bruen.

Now for the kicker: Barnett acknowledges that "Bowie knives were both widespread and used for lawful purposes."  They were "particularly suitable for self-defense" and "typically possessed for self-defense."

Sounds like Bowie knives met the common-use test.  Indeed, Bruen noted that in medieval times, "[a]lmost everyone carried a knife or a dagger in his belt," "[c]ivilians wore them for self-protection," and they "strike us as most analogous to modern handguns."

Despite Bruen's reiteration that the Second Amendment protects "weapons 'in common use' today for self-defense," Barnett asserts that "Bruen cuts against the conclusion that a weapon's 'common use' leaves it immune from regulation."  (The court takes "regulation" to mean banning.)  Citing the cert grant in Viramontes, Barnett claims that "the Court has not set out a comprehensive framework through which to evaluate challenges to restrictions on particular weapons, as its recent grant of certiorari in cases similar to this one indicates."  It seems more like the Court has repeatedly done just that, but that some lower courts don't want to follow it.

Chief Judge Brennan dissented in Barnett.  Noting that the district court had produced "the most comprehensive trial record in any Second Amendment case to date," he states: "Our Nation's enduring traditions forbid governments from prohibiting firearms commonly owned for self-defense. Because the people have overwhelmingly chosen the AR-15 rifle and its magazine as their weapon of choice, they are protected by the Second Amendment."

A major thrust of the dissent is on the common-use test.  "That test properly focuses on the people. The Second Amendment right is an individual right, as Heller held. The Court rejected a test in which judges decide what weapons are necessary for self-defense."  Given the millions of AR-15s in civilian hands and their legality in most states, "a court can account for how many of the firearms are owned and how many states ban their possession to determine whether a firearm is in common use."  Not much difficulty there.

What is in common use can be manipulated by the government – had the federal "assault weapon" ban of 1994 not expired a decade later, common use of AR-15s would have been receding.  Despite the argument that the common-use test is circular because "what can be banned depends on what has been banned," "it is not for us to inject the circularity argument back into Second Amendment law. If a majority of the Supreme Court did not adopt that argument in Heller, neither should we."  Similarly, the "dangerous and unusual" test has been criticized because the government can ban a new firearm design when it comes out so that it will always be unusual.  But to ban a weapon immediately, "the government must proffer evidence that it is being used by criminals, not law-abiding citizens for lawful self-defense."  Otherwise, "the government must 'wait and see' whether and how the public adopts and uses the firearm before it can be banned."

As Chief Judge Brennan states, "To say AR-15s are not in 'common use' does not pass the 'red face' test."  The majority does not even try to follow the test, instead applying its newly-minted "particularly dangerous weapons" test.  But that novel test is not based on any of the specific features of the AR-15, which the majority lists but avoids any mention of what makes them so dangerous.  The dissent does address the features: "The district court also heard from self-defense experts who all reported 'recoil[,] … lighter weight, shorter barrel, and ergonomic stock and grip' make 'AR platform rifles' well suited for self-defense, which is why they are commonly used in popular 'defensive carbine course[s].'"

The bottom line, in Chief Judge Brennan's words: "Whether a firearm is useful for self-defense is not a decision for judges. The people choose which weapons to own for self-defense."  Meanwhile, the Supreme Court will have to keep repeating itself to recalcitrant lower courts. The Court will hopefully rein in such lower court obstinacy when it decides Viramontes and Grant.

The post Second Amendment Roundup: Seventh Circuit Decides Barnett appeared first on Reason.com.

The gravest contemporary threats to expressive freedom do not always take the form of statutes or criminal sanctions. Increasingly, they take the form of procurement decisions, grant terminations, security-clearance revocations, and regulatory designations—the discretionary instruments of executive administration. When the executive deploys these instruments to penalize disfavored viewpoints while preserving the appearance of ordinary governance, it engages in what I have elsewhere called expressive governance. This phenomenon is doctrinally elusive precisely because it operates in domains where courts have long, and for sound institutional reasons, extended substantial deference to executive judgment.

A recent dispute crystallizes the problem. After a leading artificial intelligence company publicly maintained that its models could not be deployed for use in autonomous lethal weapons or the mass surveillance of citizens, and declined contract terms that would have required otherwise, the government designated the company a "supply-chain risk to national security"—a classification historically reserved for foreign adversaries—and moved to foreclose its commercial relationships across the federal defense ecosystem. The designation was framed as a national security judgment. But the sequence of events, the named targeting, and the disproportion of the response suggest a different object: retaliation for protected expression, accomplished through an administrative label. One might resist this inference, reading the episode as the disciplining of a difficult counterparty rather than retaliation for a viewpoint. The framework developed here does not foreclose that reading — it is designed to test it. Part IV takes up the objection directly.

Building on work I have developed elsewhere, this essay shows how the existing First Amendment doctrine supplies the governing principles to address expressive governance but lacks an administrable method calibrated to the low-visibility, discretion-cloaked form the problem now assumes. It then proposes such a method: a framework of three interlocking tools—a clear-statement requirement, a burden-shifting rule, and an evidentiary presumption of systemic distortion where the executive targets expressive intermediaries. The framework neither invents a new tier of scrutiny nor relaxes the deference that executive administration ordinarily warrants. Rather, it allocates proof and construes authority so that genuine managerial decisions remain insulated while viewpoint retaliation cloaked in discretionary form becomes detectable.

The post Journal of Free Speech Law: "Policing Expressive Governance: A Framework for Judicial Review of Executive Viewpoint Retaliation," by Simona Grossi appeared first on Reason.com.

From Trump Media & Tech. Group Corp. v. WP Co. LLC, decided today by Judge Tom Barber (M.D. Fla.):

In 2023, Defendant WP Company LLC (the "Post") published an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," which reported on the finances of Trump Media Technology Group ("TMTG"). After almost three years of litigation, the Post has now admitted that portions of the article included false information. Specifically, the Post admits its story incorrectly stated that TMTG paid a $240,000 referral fee in connection with an $8 million loan from an entity known as ES Family Trust. The Post now admits that no such payment was made and recently chose to publish a "Correction" to that effect {"Discovery in the ongoing litigation has established that Trump Media didn't pay a loan referral fee of $240,000, as was stated in the article and was based on The Post's reporting at the time of publication."}. TMTG contends in this defamation lawsuit that the statements about the referral fee were false and defamatory and seeks almost $2 billion in damages resulting from the publication.

However, under controlling United States Supreme Court and Eleventh Circuit precedent following New York Times Co. v. Sullivan (1964), a jury will not have the opportunity to decide this case. To survive summary judgment, TMTG must show more than just that the Post's statements were false and defamatory.

Current law requires that TMTG also establish that the Post acted with "actual malice," that is, TMTG must prove that, at the time the Post published the statements, the Post either actually knew the statements were false or had serious doubt as to whether they were true or false. Further, to prevail under current law, TMTG must establish actual malice by evidence that goes beyond the "preponderance of the evidence" necessary in the usual civil case and adduce evidence on this issue that is clear and convincing.

These standards are exceedingly difficult for any plaintiff to meet, and TMTG has not met them here. TMTG's evidence establishes beyond any doubt whatsoever that the Post published false information—the Post has admitted that. Under the facts presented here, reasonable minds could certainly conclude the Post acted unreasonably and should have conducted a better investigation before making the challenged statements. But under controlling precedent, such a showing is not sufficient to establish actual malice by clear and convincing evidence. Accordingly, the Court is required to grant summary judgment for the Post….

The circumstantial evidence adduced by TMTG certainly supports a jury finding that the Post acted unreasonably and should have done a more thorough investigation into the alleged payment of the finder's fee. But it falls short of providing a basis for a jury finding that the evidence clearly and convincingly shows that the Post knew the story was false or published it with reckless disregard of whether it was false, that is, with serious doubt as to whether the story was true or false or with a high degree of awareness that the story was probably false.

First, there is no evidence that the Post fabricated the story that TMTG paid a finder's fee, nor is there anything inherently implausible or even extraordinary about the story itself.

Second, the Post did not rely on anonymous tips, rumors, or other manifestly unreliable sources as is sometimes the case. It relied on information received from Wilkerson, an insider in position to know the truth, who was willing to go on the record, and who was providing information not only to the Post but also to other newspapers and government officials. The Post also relied on information from Wilkerson's lawyers, whom the Post understood to be providing information on behalf of Wilkerson. See id. (affirming dismissal of defamation complaint where the story was not based on an unverified anonymous phone call).

[Reporter Drew] Harwell's declaration asserts that Wilkerson's lawyers told him that TMTG paid the fee. His contemporaneous notes confirm that assertion, as does a recording of an interview session involving not only the lawyers but Wilkerson himself. TMTG does not dispute Harwell's assertions. Although Wilkerson's deposition testimony might be slightly inconsistent with Harwell's declaration and raise an issue of fact as to whether Wilkerson himself actually told Harwell that TMTG paid the fee, Wilkerson does not deny that his lawyers did so.

TMTG argues that Wilkerson was an unreliable source because TMTG suspended and then fired Wilkerson, giving him a motive to fabricate the story in retaliation. As the Court has previously observed, an employee's termination does not necessarily cast doubt on negative information the employee provides about an employer.

Further, it is undisputed that Wilkerson did not "blow the whistle" after he had been fired. He was fired for "blowing the whistle," i.e., for providing information to the press. Harwell's declaration explains that he assessed Wilkerson's credibility and concluded based on past experience with Wilkerson that Wilkerson was reliable. No record evidence casts doubt on that assertion.

Third, the Post investigated the story by reviewing documents provided by Wilkerson and his lawyers, including a draft fee agreement and an invoice for the fee apparently from Entoro Securities. These documents are fully consistent with the assertion by Wilkerson's lawyers that TMTG paid the fee although they do not directly confirm it. They certainly do not contradict it. Harwell can be faulted for not pressing to obtain final documents or additional confirmation, but there is no evidence that

anyone or any document told Harwell the fee had not been paid. In the absence of an obvious reason to doubt the story, Harwell's failure to seek additional confirmation does not suggest that he actually doubted the fee had been paid and purposefully sought to avoid the truth.

Fourth, prior to publishing, and consistent with his usual practice, Harwell sent to TMTG and others what the Post refers to as "no surprises" emails. These are sent to provide the subjects of an article an overview of information that may be included in the article, to give the subjects notice and a chance to comment or provide additional information. Harwell reached out to a number of different sources that included TMTG itself, TMTG CEO Devin Nunes, TMTG co-founders Wes Moss and Andy Litinsky, DWAC CEO Patrick Orlando, Entoro partner James Row, and the SEC. None responded with any information.

TMTG criticizes Harwell's "no surprises" email on the ground that it referred only to the fee agreement rather than to payment of the fee, but the email's express reference to the fee agreement and to "Entoro's referral fee" is not what one would expect if the Post were trying to avoid the truth about the fee. If, as TMTG claims, the payment, not the agreement, is the critical fact, the Post's "no surprises" email could be expected to elicit an explanation from TMTG that, regardless of any agreement, the fee had not been paid. The notion that the reference to the fee agreement in the "no surprises" emails was intended to distract attention from the subject of payment of the fee is speculative and insufficient to create a genuine issue of fact.

TMTG also argues that the Post sought confirmation from sources that it expected would not respond. While government agencies might be expected to decline comment on ongoing cases or investigations, that is not true of the many other sources noted above to whom the Post reached out.

TMTG argues that actual malice is demonstrated by the fact that the Post learned within a few days after publication that its own sources lacked proof of payment but did not issue a correction. But the crucial inquiry for actual malice is the Post's state of mind at the time of publication. Assuming the Post's failure to correct the story immediately upon learning that Wilkerson had no knowledge that payment had been made is relevant at all to the Post's knowledge and state of mind at the time of publication, any inference from these post-publication facts to actual malice at the time of publication is speculative at best.

TMTG further argues that actual malice can be inferred from Harwell telling Professor Ohlrogge, an expert at New York University Law School that he consulted while developing the story, about an agreement to pay the fee but failing to inform him that the document the Post relied on as evidence of the agreement was an unsigned draft. However, Harwell stated in his declaration that he sent a copy of the draft agreement to Ohlrogge, and in any event, telling Ohlrogge there was an agreement or payment is perfectly consistent with Harwell's belief that there was an agreement and payment; it is hardly evidence that Harwell knew or doubted those things were true.

In short, a source who was in a position to know the truth and was not obviously unreliable told the Post that TMTG paid a finder's fee for the ES Family Trust loan. The idea that TMTG would pay such a fee is not inherently implausible. The source provided the Post with documents consistent with the assertion of payment although not directly confirming it. No person or document contradicted what the Post had been told. The Post reached out prior to publication to numerous sources, but none provided contrary information….

Although it is rooted in the First Amendment, which was adopted in 1791, the law applicable here was essentially invented by the U.S. Supreme Court in 1964 when it decided New York Times v. Sullivan. "Since 1964, however, our Nation's media landscape has shifted in ways few could have foreseen." Numerous justices, judges, and commentators have suggested that the law in this area needs to be revisited….

This Court shares many of [these] concerns, and if it were deciding this case on a clean slate, the result might be different. If the law did not require "clear and convincing evidence" of actual malice, it is likely the Post's motion for summary judgment would have been denied, and a jury would have had the opportunity to weigh in on this matter. However, "until the Supreme Court reconsiders Sullivan, we are bound by it[.]" As explained above, under controlling law, TMTG's evidence is insufficient to support a finding of actual malice under the clear and convincing standard, and summary judgment for the Post is therefore required….

Last year, Judge Barber had allowed the case to go forward based on the allegations in the Complaint, denying the Post defendants' motion to dismiss. But now that there has been discovery, the judge concluded that Trump Media hadn't introduced enough evidence to withstand a motion for summary judgment.

The post Trump Media's Lawsuit Against Wash. Post Over "Trust Linked to Porn-Friendly Bank Could Gain a Stake in Trump's Truth Social" Thrown Out appeared first on Reason.com.

The George Washington University Regulatory Studies Center has issued a call for papers on "Policymaker Responses to the Revolution in Administrative Law."  Details below.

In the last 15 years, the Supreme Court has rewritten the textbooks on administrative law. The George Washington University Regulatory Studies Center seeks papers that address how lawmakers and regulators are responding to the revolution in administrative law wrought by the Roberts Court. Below, we have provided examples of possible subjects.

• In cases like Loper Bright Enterprises v. Raimondo and West Virginia v. Environmental Protection Agency, the Supreme Court called on agencies to curtail adventurous readings of their enabling acts. Have agencies done so? How are agencies regulating "major questions"? Are agencies strategically advancing the "best reading" of statutes in their decisions?
• In Securities and Exchange Commission (SEC) v. Jarkesy, the Court cast constitutional doubt on many agency adjudications. After Jarkesy, how have agencies changed their adjudicative practices? More broadly, how have administrative agencies and the Justice Department changed their enforcement strategies?
• The Court has taken an expansive view of the president's constitutional authority to manage the law's execution, most recently in Trump v. Slaughter. How are presidents exercising this new personnel power? When a regime involves adjudication, to what extent, if any, are agencies ensuring the decision-maker's independence? Where do members of the Senior Executive Service fit within contemporary doctrine?
• What is Congress's reaction, if any, to these seismic changes in administrative law? Has Congress enacted specific legislative responses to any of the significant regulatory decisions emanating from the Supreme Court? Is there lawmaker interest in providing clarity to enabling acts? Have doctrinal changes affected how Congress allocates resources to agencies?

This is a non-exclusive list. We welcome any submission that focuses on how the Court's evolving administrative law is influencing policymakers (rather than the lower courts). For example, we would welcome a paper that addresses agency implementation of the National Environmental Policy Act (also known as "NEPA") in the wake of Seven County Infrastructure Coalition v. Eagle County.

We welcome submissions from a range of perspectives, including public policy and administration, economics, law, political science, the natural and physical sciences, and economic history. Cross-disciplinary collaboration is encouraged.

Paper proposals will be judged in terms of academic rigor and practical viability. Conceptual, theoretical, and/or empirical proposals are welcome. Proposals should be no more than 700 words and highlight both the approach and practical implications of the research. Proposals are due on August 3rd and may be submitted here.

Selected paper authors will receive an honorarium of $7,000, with $3,000 payable on delivery of the draft paper and $4,000 due on completion of the project.

See here for full details.

The post Call for Papers on Policymaker Responses to the "Revolution" in Administrative Law appeared first on Reason.com.

An excerpt from the June 29 Georgia Court of Appeals decision in Accuracy in Media, Inc. v. Giusti, written by Judge Brian Rickman and joined by Chief Judge Trenton Brown and Judge Amanda Mercier:

Isabella Giusti ("Izzy"), Joni Saxon-Giusti, and Peter Giusti (collectively, "the Giustis") filed a lawsuit against Accuracy in Media, Inc., and its president Adam Guillette (collectively, "Accuracy in Media") asserting claims for defamation [and other torts]….

Here's a summary of plaintiffs' allegations:

Izzy, a native of Savannah, was a junior at Barnard College during the 2023-24 school year. Joni Saxon-Giusti and Peter Giusti are Izzy's parents. On April 18, 2024, Izzy joined a protest regarding the war in Gaza on Columbia University's main quad. During this protest, Izzy was arrested as part of a mass arrest of approximately 100 students. After Izzy was arrested, the New York Post ran an article identifying Izzy as one of the protesters who had been arrested.

On April 21, 2024, a masked person holding a sign that read "AL-QASAM'S NEXT TARGETS" was photographed in front of multiple pro-Israel counter-protestors near Columbia's main quad. According to the Giustis' verified complaint, the Al-Qassam Brigades are the military wing of Hamas, and, under the circumstances, the sign was rightly understood by those who saw it to be offensive and unacceptable and to imply that the counter-protestors should or would be subject to violence.

Izzy was not the masked person in the photograph holding the sign and was not at the protest when the photograph was taken. Nevertheless, several organizations opposed to the student protest at Columbia falsely claimed that Izzy was the person holding the sign.

By April 22, 2024, Accuracy in Media knew that "there[ were] questions as to if the picture [was] actually" Izzy. On May 1, 2024, Accuracy in Media purchased a website, www.izzygiusti.com. The website incorrectly identified Izzy as the person holding the sign in the photograph. On May 3, 2024, Guillette traveled to Savannah with a mobile billboard truck displaying Izzy's name and photograph and the web address "IzzyGiusti.com."

According to Guillette, the purpose of his trip to Savannah was to interview Izzy's parents and conduct sidewalk interviews regarding Izzy. According to the Giustis, the purpose of the trip was to harass Izzy's family in the family's hometown. The mobile billboard truck and Guillette went near Joni Saxon-Giusti's bookstore and targeted Peter Giusti at the family home, "mocking political signs in the home's window, mocked Izzy's family for avoiding an interview, and wondering in a subsequent write-up how the family was responsible for raising a 'raging antisemite[.]'" Accuracy in Media subsequently revised the website, cropping the photograph of the person holding the sign so that the text of the sign was no longer visible, and displaying the photograph next to a photograph of Izzy, with both photographs under the heading "Columbia's Leading Antisemite Isabella Giusti." …

And the legal analysis:

Accuracy in Media argues that the core of its publications was true—that Izzy was arrested at an extremist anti-Israel encampment at Columbia University, an event that Accuracy in Media believed to be antisemitic. Accuracy in Media further argues that labeling someone an "antisemite" is an example of rhetorical hyperbole or opinion.

However, the Giustis' defamation claims originate from the misidentification of Izzy as the person holding the sign at the April 21 protest. Specifically, the Giustis alleged that Accuracy in Media defamed Izzy by causing "a website to be published that falsely accused Plaintiff of being the person holding the offensive sign, and [Accuracy in Media] caused a mobile billboard truck to be driven through Savannah bearing similar messages."

The Giustis also alleged that Accuracy in Media defamed Joni Saxon-Giusti and Peter Giusti by publishing statements falsely "indicating that their parenting had caused Izzy to be the person holding the offensive sign and otherwise caused her to be a 'raging antisemite,' when in fact the underlying assumption for that statement was wholly inaccurate." At this stage of the proceeding [the defendants' anti-SLAPP motion to strike the Giustis' complaint], we must accept the Giustis' evidence as true.

Furthermore, "there is no wholesale defamation exception for anything that might be labeled opinion. An opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or to imply defamatory facts about the plaintiff that are capable of being proved false." Here, at least some of the statements that the Giustis allege were published by Accuracy in Media may be reasonably understood to state or imply defamatory facts about the Giustis that could be proven false….

The post Claim That Accuracy in Media Misidentified the Person Holding Allegedly Pro-Hamas-Violence Sign at Columbia Protest … appeared first on Reason.com.

From yesterday's decision by Judge Henry Edward Autrey (E.D. Mo.) in Eames v. NILE, the plaintiff's allegations (which at this point are of course just allegations):

Defendant NILE is a death metal band founded in 1993 that has released twelve (12) Albums, the most recent of which, "The Underworld Awaits Us All", was released August 23, 2024.

Eames was a member of the band NILE from mid-2021 until October 26, 2023. Eames toured with NILE from mid-2021 to November 2022, performed guitar and vocals stage left, and was paid $700/week.

In November 2022, Eames agreement with NILE was modified by mutual agreement. Pursuant to the new terms, Eames was moved to stage-front center, performed as the Frontman, main-vocalist, and guitarist for NILE, and Eames was to perform on NILE's new album "The Underworld Awaits Us All" ("Underworld") with the album recording to take place during the ensuing year….

As a member of NILE and pursuant to the Agreement, in exchange for his performance and collaboration on NILE's Underworld album, Eames was to perform on NILE's Underworld tours as a member of NILE following the album's release until October 11, 2025 (the last scheduled tour date). In exchange for his performance of the Agreement, Eames was to receive: 1) Tour compensation of $850.00/week on a weekly basis for the duration of the Underworld Tour; 2) 1/3 of NILE's net revenue from the release of the album and sales; 3) 1/3 of NILE's net royalties on future uses of the album, album streaming, and merchandise sales; and 4) 1/3 of NILE's net endorsement and advertising revenue….

On October 23, 2023, a fake article was posted on internet websites Medium.com and NewsBreak.com which falsely stated that Eames had been "criminally charged in Moberly, Randolph County. MO, with multiple counts of battery and sexual assault, claiming authorities were notified of the crimes and that multiple women, including a minor, had reported years of domestic violence and abuse" ("Posts"). The articles included Eames name and a photo of Eames credited to MO Newsdesk 13 (a local cable news affiliate) and was created to appear to be an official press release.

The claims in these articles are completely false and Eames has never been criminally charged with battery, sexual assault, domestic violence/abuse, or minor abuse. The articles were falsely published under the identity of a Missouri based author and self-proclaimed domestic violence advocate and survivor; the actual identity of the Posts' creators remains unknown. Contacting the purported author would have quickly revealed she had no involvement in the posts and would have revealed the deceitful, deceptive, and fraudulent intention of the Posts. NILE acknowledged the falsity of the Posts in communications with Eames.

On October 24, 2023, Eames discussed these fake Posts and false statements with NILE and assured them they were completely false and were nothing more than a smear campaign against him. NILE acknowledged Eames' innocence and assured him they knew the Posts were false and a smear campaign.

On October 26, 2024, NILE announced the band and touring lineup for its Underworld album and tours omitting Eames. An October 26, 2024, article announcing the lineup posted on Metal Insider (a prominent online heavy metal publication) indicated that Eames was surprisingly omitted from the NILE Underworld lineup and included a link to the false Posts on Medium.com and Newsbreak.com.

NILE has at all times relevant, failed to pay Eames 1/3 of net revenue from the Underworld album release and album sales, 1/3 of net royalties on future uses of the Underworld album, album streaming, and merchandise sales, and 1/3 of NILE's net endorsement and advertising revenues related to the Underworld album.

The court dismissed Eames' breach of contract claim:

Contracts for a period of greater than one year are invalid unless they satisfy Missouri's statute of frauds, which provides in pertinent part that:

No action shall be brought … upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year … unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith ….

An agreement satisfies the statute of frauds only if its "essential terms" appear in writing…. Plaintiff's Second Amended Complaint alleges the parties had an agreement that was modified in November, 2022 and was to be completed at the end of the tour, October 2025. This time frame is clearly over one year and by its terms cannot be completed within one year, thus subjecting it to the statute of frauds.

Plaintiff merely states that the parties had an agreement. Nowhere in the Second Amended Complaint does Plaintiff claim the agreement was reduced to writing or that any memorandum of agreement was executed by the parties. Indeed, Plaintiff essentially admits in his opposition that the agreement was an oral agreement. Once Defendant raised the statute of frauds in its motion to dismiss, Plaintiff was required to affirmatively "show the existence of an appropriate writing or an exception to this defense in order to avoid dismissal." Without a written agreement containing the essential terms of the parties' agreement, Plaintiff's breach of contract action is barred by the Missouri statute of frauds….

Plaintiff's argument that he has partially performed the contract fails…. [But] "[t]he doctrine of part performance, interposed to avoid the defense of the statute of frauds, is a creature of equity and has no application to an action at law for breach of contract.

But the court allowed plaintiff's unjust enrichment to go forward:

Partial performance in furtherance of the agreement may serve as an equitable exception to the Statute of Frauds. A party may avoid the bar of the Statute of Frauds if the party has performed acts that, in themselves, are evidence of the existence of the contract.

["]The acts must have been done in reliance on the contract, and the positions of the parties must have been so materially changed that it would be grossly unjust to allow the other party to rely on the Statute of Frauds. If partial performance is established, the party asserting that a contract exists may introduce parol evidence of the verbal terms of the contract."

Plaintiff's Second Amended Complaint sets forth sufficient facts to notify Defendant of his unjust enrichment claim….

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This is unsurprising, given the 2-1 split on the panel and given the prominence of the case. And of course the indication of an up coming en banc vote isn't that telling, given that the vote may well come out against review. Still, because this is such a prominent case, I thought I'd note the development.

[* * *]

Some excerpts from [the] very long opinion in Pernell v. Fla. Bd. of Governors of State Univ. by Judge Britt Grant, joined by Judge Charles Wilson; note that the leading Eleventh Circuit precedent on this is Bishop v. Aronov, which both opinions discuss in considerable detail:

[A.] The provision at issue here disallows any "training or instruction that espouses, promotes, advances, inculcates, or compels" students at Florida's public colleges and universities to believe any of eight concepts relating to topics like race and sex:

1. Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
2. A person, by virtue of his or her race, color, national origin, or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. A person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
4. Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
5. A person, by virtue of his or her race, color, national origin, or sex, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.
6. A person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
7. A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.

Though "promot[ing]" any of these concepts is barred, criticizing them is not. Beyond that, the Act allows instructors to introduce the ideas in a neutral fashion, permitting discussion "as part of a larger course"—so long as "instruction is given in an objective manner without endorsement of the concepts." And the law does not say how far past the classroom its restrictions extend—off-campus speeches and other settings may be in play….

{The Act's terms apply to all public schools, starting with kindergarten and going through graduate school, but the plaintiffs challenge only its application to postsecondary schools.}

[B.] [The defendants argue] that because Florida "appropriates public funds" to support public education at the State's universities, it is "entitled to say what it wishes" at those universities [under the government speech doctrine]. That is a sweeping assertion, and one that is unsupported by the cited government speech precedents.

Those cases are about public monuments, license plates, and the like—not anything close to academic teaching. The thrust of their holdings is that when the government speaks it can choose its message. There is no need, as the Supreme Court put it, for a local government that supports recycling to include a counterargument from the local trash company. The classic government speech cases Florida leans on are also about the government itself expressing certain ideas—not banning employees from endorsing others. Even so, the State asserts that "if the speech of private individuals proposing license plate slogans is government speech, then surely the classroom speech of state-employed educators at state universities is too." But why? Florida does not say….

{Of course[,] universities have control over their own curriculums…. They need not offer, for instance, every class a student would like to take. But that does not resolve, or really even address, the issues in this case.}

A variety of factors are at play when considering whether the government is speaking …. Several considerations may be relevant, including "whether the government maintains control over the speech," "whether the type of speech has traditionally communicated government messages," and "whether the public would reasonably believe that the government has endorsed the speech."

We first consider whether the government maintains control over the speech here. The State has traditionally exercised relatively little control over postsecondary education, especially as compared to public primary or secondary education. Florida imposes few curricular requirements by statute. And those that it does impose involve basic general education requirements—things like how many core classes students must take to graduate and what standards a communications course must meet. (Such a course "must afford students the ability to communicate effectively.")

And the "purpose and mission" of Florida's postsecondary educational system, as defined by state law, is to "enable[] all students to participate in the search for knowledge and individual development," to "discover and disseminate knowledge," to "foster[] diversity of educational opportunity," and to "develop in students heightened intellectual, cultural, and humane sensitivities." These broad ambitions are inconsistent with unrestricted control over the messages conveyed by university professors.

The relative independence of Florida's universities diverges from the State's near plenary authority over primary and secondary education, where "state academic standards establish the core content of the curricula to be taught in the state." In exercising this broad authority, the State Board of Education has adopted a comprehensive list of educational standards—nearing 7,300 in number and spanning every subject and every grade. To meet these standards, moreover, public school teachers must "us[e] the books and materials required," "follow[] the prescribed courses of study," and only "employ[] approved methods of instruction." The state government, in short, has traditionally controlled the curriculum in primary and secondary schools, but offers only minimal statutory guidance in the postsecondary education context.

The State's relative detachment from college lectures is even more revealing when compared to the level of state control we see in the government speech context—nearly total. A few examples illustrate the point. In one case about the use of a stadium loudspeaker during a state championship game, this Court explained that the announcer's remarks were "entirely scripted," with "[e]very word" written by a state employee. And in another involving a USDA-sponsored pro-beef campaign, the Supreme Court noted that the government exercised "final approval authority over every word used." Florida does not—and could not—exercise that kind of control over every postsecondary class lecture. Indeed, Florida does not argue that it has controlled every word that university professors say, only that it can.

And common sense also has a role to play here. Does anyone really think that every professor in every class at every public university is putting forward the official line of the State's political branches? So while the government speech doctrine "does not require omnipotence," Florida has not come close to exhibiting the degree of control necessary to classify professors' lectures as government speech.

The second and third factors—whether the speech has traditionally communicated government messages and whether the public would view the speech as endorsed by the government—are closely related here. Certainly at some level the public perceives a seal of approval from the State for the curricular decisions of its universities. And courts have recognized that the universities themselves at least have control over "the parameters of focus and general subject matter of curriculum."

But the text of this law does not seek to develop the curriculum of a university, of a major, or even of a class. Instead, it seeks to bar disfavored speech on one set of topics at every university and in any class. And it does so in a way that contradicts Florida's longstanding (and presumably still valid) statutes governing its universities.

Florida law, for instance, requires state universities to continually assess "the intellectual freedom and viewpoint diversity" and "the extent to which competing ideas and perspectives are presented" at the school. And the Board of Governors is forbidden from limiting students' "access to, or observation of, ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive," if that speech is protected by the First Amendment.

These principles are consistent with the Supreme Court's recognition that the "classroom is peculiarly the 'marketplace of ideas.'" And they are inconsistent with the idea that university professors communicate government messages as mouthpieces of the state. These statutes (together with common sense) make clear that the public—and even the State—both recognize that university professors speak independently and without government endorsement of every idea they communicate….

[Moreover, the Supreme Court's leading government employee speech cases] centered on disciplining a single employee who had already spoken—"a post hoc analysis of one employee's speech and its impact on that employee's public responsibilities." United States v. Nat'l Treasury Emps. Union (1995). Here, the government's attempt to control employee speech is at the other end of the spectrum. The Act is a wide-ranging, ex ante restriction on the speech of every public university professor in the state. Because the Act "chills potential speech before it happens," the State's "burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action." …

[C.] [W]e are still left with a difficult question: can the Individual Freedom Act's speech restrictions be constitutionally applied to these professors? After all, though it offers little direct control, Florida (like other states) is fundamentally in charge of its public universities, appointing most members of the Board of Governors, providing considerable funding, and establishing certain core curricular standards.

"Federal judges should not be ersatz deans or educators." And because "States historically have been sovereign" in the field of education, the "traditional role in the formulation and execution of educational policy" belongs to them—not us. That leaves federal courts "reluctan[t] to trench on the prerogatives of state and local educational institutions." But these precedents, like their counterparts reserving space in the First Amendment catalogue for academic freedom, fail to provide a direct answer to the question we consider today.

We … [turn] to Bishop v. Aronov (11th Cir. 1991), which asked as we do here, "to what degree a school may control classroom instruction before touching the First Amendment rights of a teacher." … [T]hat case arose when the University of Alabama barred one of its professors from using class time to describe his religious views. Some of his comments concerned his belief in "the creative force behind human physiology." Others were made to share his faith, be open about his biases, and offer suggestions for students on how to deal with academic stress. But the students sought something else—an uninterrupted course on exercise physiology. After enough complaints, the University directed Bishop to stop, forbidding him from "presenting his religious viewpoint during instructional time, even to the extent that it represent[ed] his professional opinion about his subject matter." We ultimately rejected the professor's free speech challenge to that restriction.

Here, Florida suggests that a direct line connects the constitutionality of the University's response to Bishop with the constitutionality of the Florida political branches' prophylactic speech ban on all public college and university professors. Not so. Bishop itself instructs that there is "no substitute for a case-by-case inquiry into whether the legitimate interests of the authorities are demonstrably sufficient to circumscribe a teacher's speech." …

[F]ollowing Bishop's lead, we recognize "the 'basic educational mission'" of the university system, which authorizes "the use of 'reasonable restrictions' over in-class speech that [the State] could not censor outside the classroom." Along those same lines, we recognize Hazelwood Sch. Dist. v. Kuhlmeier's holding (endorsed in Bishop) that "educators do not offend the First Amendment by exercising editorial control over the style and content of student or professor speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

These factors cash out to the recognition that here, as in other First Amendment cases, we are called to balance the professors' interests against the State's. But the government's interests in this equation are rather circumscribed: editorial control is taken for granted, but restrictions must be reasonable and related to legitimate pedagogical concerns. In conducting this analysis, we consider Bishop's three general factors: the context of the speech; the state's "position as a public employer"; and the "strong predilection for academic freedom as an adjunct of the free speech rights of the First Amendment."

First, context. Here the context is the same as in Bishop: "the university classroom during specific in-class time." Bishop also noted that the "University's interest is most obvious when student complaints suggest apparent coercion—even when not intended by the professor." The word coercion, to be sure, has echoes of Establishment Clause precedents (particularly around the time of Bishop), but we think that concern is relevant here, too.

Florida's restrictions are, as the State admits, an attempt to force uniformity of thought on students by curtailing the free exchange of ideas in universities—the very environments traditionally regarded as laboratories for expression and truth seeking. Compelling certain beliefs by suppressing "individual thought and expression" is "especially" dangerous in the classroom context, "where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." Unlike in Bishop, where the University was furthering an anti-coercion goal, Florida here asserts the opposite interest—coercing university faculty (and by extension the students) into avoiding a certain set of ideas. Whether Florida is right or wrong about how dangerous these viewpoints are is irrelevant, at least to our inquiry as a court. "No matter how controversial the ideas, allowing the government to set the terms of the debate is poison, not antidote."

Second, we consider the State's interests as an employer. "Courts agree that the school's administration may at least establish the parameters of focus and general subject matter of curriculum." No doubt. And "[t]angential to the authority over its curriculum, there lies some authority over the conduct of teachers in and out of the classroom that significantly bears on the curriculum or that gives the appearance of endorsement by the university." This recognition, we think, significantly mitigates the risk that enforcing the First Amendment in the academic context would leave universities or other government authorities powerless to set overall curricular decisions or exclude speech that veers outside of well-understood parameters—personal tangents irrelevant to the subject matter, conspiracy theories, and the like.

Our own early cases support this same point. In one, we found no constitutional error when a university fired a professor whose speech "seriously impair[ed] … his effectiveness as an instructor." Ferguson v. Thomas (5th Cir. 1970). In another, we rejected a First Amendment challenge to a university's decision to deny tenure when the professor gave students two course credits for effectively taking only one course; awarded most students high grades for little work; made "untrue and misleading public statements"; and demonstrated a lack of "professionalism and maturity." Megill v. Bd. of Regents (5th Cir. 1976). And in Bishop, we again found no First Amendment violation when the university determined that a professor's tangential speech impeded his ability to properly teach physiology. These cases show that even when reserving space for academic freedom, university administrators (and perhaps other government officials too) have a legitimate interest in ensuring that a professor's in-class speech is both "germane" to the curriculum and "professionally competent."

Florida's justifications are not in line with those rationales. Rather than asserting an interest in promoting classroom efficiency or appropriately educating students, Florida says its "sovereign judgment" is that the forbidden viewpoints are "contrary to the State's most cherished ideals." But advancing cherished state ideals is a far cry from ordinary workplace management concerns, much less a legitimate pedagogical interest. What's more, even if many of these ideas are dead wrong, they are not at all irrelevant, at least in certain coursework. Florida itself seems to recognize this fact by allowing discussion of the viewpoints, even while barring their endorsement.

The State does assert one other justification for its law—an "interest in preventing invidious racial discrimination in public education." But as we have already held when considering the companion provision limiting private employers' speech, the Act does no such thing. Discrimination "generally means to treat differently," and "the Act does not regulate differential treatment"—it restricts speech that State political authorities find objectionable.

Preventing professors from positively discussing a viewpoint is not the same as regulating discrimination, which the State can certainly do. A professor who espouses a particular idea does not stand in the same shoes as one who ridicules a student, threatens a student, or targets a student. The Act does not limit (and does not purport to limit) actual discrimination of any kind. It instead assumes that mere exposure to what the State views as the wrong viewpoint is itself a serious harm. But a difference of opinion is not discrimination….

Third, we consider what we called in Bishop the "strong predilection for academic freedom." As we noted there (and here), scholarly freedom is "abundant[ly]" celebrated in First Amendment caselaw, and the "vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Indeed, our "Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection."

Again, Bishop proves the point. True, that court also noted that "pronouncements about academic freedom" in other contexts "cannot be extrapolated to deny schools command of their own courses." To that end, we nod our heads along with Bishop as it recognizes that "academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself." Florida's Act, in contrast, removes any decisionmaking by the academy about the topics it bars. And the State's rationale is not limited—it would allow the legislature to block any speech on any topic for any reason….

The broader the restriction, and the more people whose speech it limits, the more scrutiny it must receive. Case-by-case restrictions on a single problematic professor's teaching are the bread and butter of First Amendment cases affirming the curricular authority of universities. But Florida tries to stretch those precedents to fit an entirely new context: not a university disciplining one professor for discrete misconduct, but a state government barring all professors from sharing politically disfavored ideas. {Bishop offers no holding about a state's authority to control curriculum; it protects a university's authority to control curriculum.} …

[D.] This Act's effect on academic freedom is compounded by its lack of clear definitions…. For example, when a professor assigns a reading for class that promotes one of the prohibited concepts, is that professor subjecting the student to "instruction that espouses, promotes, advances, inculcates, or compels such student … to believe" in the concept? What about when a professor hosts a guest speaker who presents only one side of the debate? {The defendants tell us that a professor would not violate the Act by hosting a guest speaker who promotes one of the eight concepts unless that professor endorses the guest's speech. This exacerbates rather than solves the problem, layering imprecision on imprecision.} Or how about a professor who teaches about one of the forbidden concepts using the Socratic method? Would those discussions be "objective"? The parties disagree on every front. And that is to say nothing of the lack of clear language in the individual concepts' definitions. Just to name one, what does "morally superior" encompass, and against whose perspective is it measured? …

And some excerpts from Judge Barbara Lagoa's very long dissent:

[A.] The professor-plaintiffs are state employees, and the speech at issue here occurs during their state-sponsored instruction in a course taken for credit by students enrolled in the State's public universities. According to the majority, a state can restrict a professor's speech so long as the restriction is "reasonable and related to legitimate pedagogical concerns." The majority also tells us that the State may legitimately prohibit a professor from discussing "irrelevant" material, "professionally [in]competent" material, "conspiracy theories, and the like."

The majority reassures that these are "well-understood parameters." But in practice, these "parameters" install a judge-made test that is unworkable and whose "policy-driven approach to the Constitution," reduces the First Amendment to a reflection of judicial preference, regardless of the State's interests in its classroom instruction….

To be clear, the First Amendment protects all viewpoints in the public square, whether they are conventional or controversial. But it does not compel all viewpoints to be worthy of state-sponsored endorsement….

The IFA concerns classroom instruction, allowing professors to discuss discriminatory concepts but not endorse or compel them…. [T]he state's interest as an employer outweighs a professor's interest in teaching his personal views.

[B.] Bishop … ought to end the matter…. Like Bishop, this case involves restrictions on a professor's speech in the classroom. And Bishop already held that, concerning classroom instruction, the State's interests outweigh those of the individual professor….

First, … [i]n Bishop, we noted that the University of Alabama legitimately feared that the professor's speech would have a "coercive effect" on his students: that students would feel compelled to show interest in the professor's religious views to obtain a good grade. The majority says this case is "[u]nlike" Bishop because there "the University was furthering an anti-coercion goal." Here, Florida supposedly "asserts the opposite interest—coercing [its] university faculty" to avoid "a certain set of ideas."

Respectfully, that distinction does not hold up. Bishop addressed coercion directed at students; we expressed no concern about any coercion suffered by a professor. In other words, the professor in Bishop, like the professor-plaintiffs here, was—in the majority's words—"coerc[ed]" to "avoid[] a certain set of ideas." That is why Bishop brought the suit. See Bishop, The majority's attempt to cast Florida's interest as somehow "opposite" of the interests in Bishop simply does not follow.

Second, … [o]n the question of relevance [of the professor's speech to the subject matter], Bishop assumed that the professor's religious views informed his professional viewpoint about exercise physiology. We held that the University could prevent him "from presenting his religious viewpoint during instructional time, even to the extent that it represents his professional opinion about his subject matter." We likewise recognized that the professor expressed "opinions about his work that happen[ed] to have a religious source."

Yet the University could still conclude—consistent with the First Amendment—that the professor's "opinions should not be represented in the courses he teaches at the University." The crux of Bishop is not, as the majority suggests, that religion is irrelevant to science, but that the State, as a public employer, may decide what is taught in its classrooms.

On the question of professional competence, we expressly refused to "gauge" whether the professor's views [in Bishop] were "well-founded." Our decision thus had nothing to do with "professional[] competen[ce]." In any event, a carveout for so-called "professionally incompetent" speech would permit, what the majority elsewhere condemns, "naked prohibition[s] on disfavored" viewpoints. Whether labeled "incompetent" or "unreasonable," the result is the same: the State may determine which viewpoints its employees may endorse during classroom instruction and which they may not.

Third, Bishop considered the First Amendment's "strong predilection for academic freedom as an adjunct of the free speech rights." … [But] Bishop held that a professor's "interest in academic freedom and free speech" does not ultimately "displace the University's interest inside the classroom." We noted that the state could not restrict a professor's speech "when he acts as an independent educator or researcher," but the state could restrict a professor's speech when he acts "as a course instructor."

[C.] In my view, the only legitimate difference here is that Bishop involved restrictions on one professor's speech while this case involves a statute of general application enacted by the Florida legislature. But that difference should not change the outcome of this case.

To start, Bishop did not treat "reasonable[ness]" as a license to rebalance interests in every new case. What made the restrictions "reasonable" was a single, concrete fact: "they appl[ied] only to [] classroom speech." That limitation carried the entire analysis. And when the IFA is read—as Bishop requires—"narrowly because [its restrictions] implicate First Amendment freedoms," its reach is likewise confined to classroom instruction.

Moreover, the Act expressly permits "discussion of the concepts listed," provided that any "training or instruction is given in an objective manner without endorsement of the concepts." It does not "ban" or reject any idea. The IFA bars Florida instructors from coercing students into believing they must embrace a prescribed viewpoint (possibly to receive good grades or preferential treatment in class, for instance). The same balance Bishop struck therefore resolves this case….

The majority nevertheless invokes U.S. v. National Treasury Employees Union (1995), for the proposition that "higher standards are necessary to vindicate broad, prophylactic restrictions on speech of a large number of employees …." … It is undisputed that, unlike Bishop, the IFA applies to the classroom instruction of all professors at public universities in Florida.

But why does that make a difference? NTEU involved speech that was unrelated to a public employee's duties at work. This case, by contrast, concerns speech by Florida's professors while they are performing their instructional duties. And Bishop expressly held that when an individual professor and his employer disagree "about a matter of content in the courses he teaches," the employer "must have the final say in such a dispute." There is little reason to think that balance changes when applied on a broader scale.

[D.] And the State's interests here are substantial in any event. The IFA prohibits instruction that people should be judged by their skin color, that people "should not attempt to treat" other races equally, and that other races "should be discriminated against." … [A] professor's endorsement of a particular viewpoint carries weight that can distort genuine academic exchange. As Bishop explained, a professor's words do not operate in a vacuum; they carry a "coercive effect" because the professor maintains authority over the students' grades.

Consider a professor who says that Hamas's October 7th attack on Israel was "exhilarating"8 and something to be celebrated and encouraged. If the professor made that statement as part of classroom instruction, would a Jewish student feel at liberty to wear his kippah or voice contrary views in the classroom, in a graded paper, or on an exam? Doubtful.

The majority's assurance that "a professor who espouses a particular idea does not stand in the same shoes as one who ridicules a student, threatens a student, or targets a student," does little to account for that reality. Florida acts well within its authority to curb professorial endorsements of that kind within its own classrooms….

[E.] Much of the majority's criticism of this dissent reduces to a supposed distinction between "a state's authority to control curriculum" and "a university's authority to control the curriculum."

But Florida law leaves the majority's university–State distinction with nowhere to stand. Florida's Constitution provides that "[t]here shall be a single state university system," that "[a] board of trustees shall administer each public university," and that "a board of governors shall govern the state university system." Florida lists each of the universities associated with the professor-plaintiffs as a "[s]tate university." And Florida declares that the "boards of trustees [of state universities] are a part of the executive branch of state government." Indeed, in the Eleventh Amendment context, Florida's grip on its public education system is so tight that its Boards of Trustees function as "arm[s] of the state." …

Taken together, these authorities make clear that Florida's public universities speak and act subject to the State's control and administration. Indeed, the IFA functions as the State's directive to its own employees, setting the standards that govern classroom instruction when, as Florida puts it, they teach "the State's curriculum, in the State's classrooms, on the State's time, in return for a State paycheck." And as this Court recognized in Bishop, the public employer has authority "to reasonably control the content of its curriculum, particularly that content imparted during class time."

{The Supreme Court has distinguished between a state's "attempts to direct the content of speech at private universities," where "[o]bvious First Amendment problems would arise," and a state's "attempts to direct the content of speech at public educational institutions," where "complicated First Amendment issues are presented because government is simultaneously both speaker and regulator." Univ. of Pennsylvania v. EEOC (1990).} …

[F.] The majority's rule, meant to avoid what it believes is the State's improper viewpoint discrimination, nonetheless endorses its own form of viewpoint discrimination. Of course, some amount of viewpoint discrimination is necessary to ensure the effective operation of any academic institution. The majority acknowledges as much, retaining vague carveouts—like "reasonable[ness]"—to distinguish between prohibitions that are and are not permissible under the First Amendment. The majority emphasizes that the boundary lines are "well-understood." It assures that "conspiracy theories" and "the like" will not be tolerated.

But these exceptions do not eliminate viewpoint discrimination. {Despite its assurance that it declines to "make any judgment about the value of the[se] ideas," the majority does exactly that. By its own account, it believes "universities or other government authorities" may "exclude speech that veers outside of well-understood parameters." But what does "veer outside of well-understood parameters" mean and why must it be this majority who decides?

Those questions go unanswered. Rather, the majority simultaneously labels certain categories of speech as properly excludable while insisting that "it is not our place" to judge the value of contested viewpoints.}

Put differently, the majority recognizes that someone must set the limits of what can be taught at public universities. And through its carveouts, the majority shifts that decision-making authority from the people to federal judges.

The test now is: Does the presiding judge believe that the professor's viewpoint is within the range of permissible views? … The majority's rule still allows "naked prohibition[s] on disfavored speech," but authorizes that viewpoint discrimination under exceptions created, interpreted, and enforced by the judiciary.

Note that my students and I filed an amicus brief on behalf of the Academic Freedom Alliance, supporting the challenge to the law.

The post Seeming Likely En Banc Call in Florida University Professor Speech Restrictions Case appeared first on Reason.com.

Brown v. Board of Education was decided in 1954. How much of an impact did Brown have on racial segregation in the United States over the next two decades?

Mapp v. Ohio was decided in 1961, Miranda v. Arizona was decided in 1966, and Katz v. United States was decided in 1967. How much did criminal procedure law change over the ensuing two decades?

Roe v. Wade was decided in 1973. Nineteen years later, the Supreme Court reaffirmed that precedent in Casey.

Romer v. Evans was decided in 1996. Nineteen years later the Supreme Court created a constitutional right to same-sex marriage.

And so on.

Certain landmark Supreme Court precedents have an immediate and significant impact on the state of constitutional law. Other precedents change very little. In my view, as we celebrate Heller's eighteenth birthday, not much has changed for gun owners living in blue states. To be sure, I think Heller was correct. And there have been some wins as states have revised their gun laws--often kicking and screaming. But the impact of Heller pales in comparison with the two decade run after other landmark cases. Even where there is "shall issue" conceal carry, virtually every public place is off limits, making it difficult to actually carry. States have imposed burdensome registration and licensing schemes, making simply keeping a firearm a hassle. And to date, the Court has seemed more interested in letting pot users own guns than deciding which arms and accessories are protected by the Second Amendment.

My new column in Civitas Outlook asks, "What the Heller?"

Eighteen years ago, on June 26, 2008, the Supreme Court decided District of Columbia v. Heller. This landmark decision declared that the Second Amendment protected an individual right to keep and bear arms that was not connected to militia service. As a result, the District of Columbia's handgun ban was unconstitutional. Eighteen years later, the Second Amendment has become a regular feature of the Supreme Court's jurisprudence. But as the right to keep and bear arms becomes old enough to vote, it is worth taking stock of how much has been accomplished on the ground. Regrettably, in nearly two decades, very little about the practical right to keep and bear arms has changed.

The biggest decisions, Heller and McDonald v. City of Chicago (2010), invalidated handgun bans that were virtually non-existent across the country. New York Rifle & Pistol Association v. Bruen (2022) halted the "may issue" conceal carry regimes, which were only in effect in a minority of states. Most recently, Wolford v. Lopez (2026) ruled that Hawaii could not presumptively ban firearms from all private property, but those businesses will gladly post signs to exclude gun owners. With each incremental victory, anti-gun governments have resisted the Second Amendment and marginalized gun owners. Unless the Supreme Court starts to vigorously enforce all facets of the Second Amendment, Heller will have amounted to little.

Moreover, perhaps the greatest unintended consequence of Heller and its progeny has been to provide progressives with a target to attack originalism:

Perhaps the biggest fallout from Heller is that the Second Amendment has become a cudgel the left can use to attack originalism. While most originalist cases promote judicial restraint, for example, Dobbs let the states decide the abortion issue, and Heller delegated to the courts the power to review gun control laws. I doubt anyone who was unpersuaded by Heller has become persuaded by Bruen and its progeny. The battle lines from 2008 haven't moved an inch. All that has changed is the membership of the Court: Justices Souter, Stevens, Scalia, Kennedy, Ginsburg, and Breyer have been replaced by Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson. What will the Second Amendment look like in another eighteen years? I suspect not much will change unless the Court begins vigorously enforcing cases that actually enable gun owners to exercise their right to keep and bear arms.

Heller was an originalist decision, except when it started making up exceptions out of whole cloth. Bruen was an attempt at originalism that almost all originalist scholars dispute. Rahimi walked back Bruen barely a year later, letting lower court judges update an Amendment that is not "trapped in amber." And as I'll explain in a future writing, I am almost completely lost after Wolford. The Court has lost the thread on the Second Amendment. Justice Barrett's scholarly exposition (and I do not mean that in a flattering way) leaves a lot to be desired. Justice Jackson is actually making some sense, even if I do not agree with her preference for an interest-balancing test.

In candor, I wrote this column after Hemani and Wolford were decided, but before the Court finally granted the AR-15 petition. The Cook County case might actually provide a material improvement to the rights of gun owners nationwide.

Have things improved since 2008? It's complicated. On the one hand, the Supreme Court has rightly restored the Constitution's original meaning. This is a victory for the rule of law. On the ground, however, things have not changed too much. Gun owners in red states had strong gun protections before Heller and retain those rights thanks to the political process. (Virginia is a gross outlier, as the purple state recently enacted draconian bans on firearms.) By contrast, gun owners in blue states may now be able to obtain a conceal carry permit, but there are very few places in urban environments where they can legally carry. And they still can't possess AR-15s. Indeed, some blue states have been galvanized by Heller to make gun ownership even more oppressive. Fortunately, on the final day of the term, the Supreme Court agreed to hear a pair of cases challenging bans on AR-15s in Illinois and Connecticut.

I'd like to think the Court took this case after so many relists to reverse the Seventh Circuit, but one could never know.

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