Defendants Gray Local Media, Inc. and Gray Media, Inc., (together, "WBTV") accurately reported on Dr. Sunar's arrest and then, at the request (and with the approval) of his lawyer, on the dismissal and expungement. WBTV declined, however, to delete its reporting, preserving the historical record.

Claiming that he has been defamed by WBTV's coverage, Dr. Sunar filed this action seeking tens of millions of dollars in damages and removal of the WBTV articles from its archives…. While Dr. Sunar's desire to undo the past is understandable, his legal claims against WBTV fail … because the articles are indisputably truthful and well within the long-established privilege of the media to accurately report on criminal proceedings…..

On September 11, 2024, Dr. Sunar, who has been practicing dentistry in Charlotte since 2002, was arrested and charged with misdemeanor child abuse and communicating threats. The next day, WBTV published an article to its website regarding the arrest titled "Charlotte dentist charged with child abuse, records show." In relevant part, the text of the article read:

A Charlotte dentist is facing child abuse charges after he was arrested last week, court records show. Jail records revealed 61-year-old Ramesh Kumar Sunar was arrested on Tuesday, Sept. 10, and was charged with misdemeanor child abuse and communicating threats. An arrest warrant said Sunar 'inflicted physical injury' on a child younger than 16 years old. The injury allegedly caused bruising on the child's torso and neck, and was not caused by 'accidental means.' The warrant further stated that Sunar told a man 'he would beat the [expletive] out of him.' According to the warrant, both incidents happened on Sept. 2…. Sunar is listed as the lead doctor on Charlotte Dental Implant Center's website.

WBTV also aired a broadcast about the arrest, which included similar information and Dr. Sunar's mugshot. Dr. Sunar's mugshot was also posted on WBTV's social media pages alongside a link to the First Report. Dr. Sunar acknowledges that the First Report was accurate at the time of publication.

Over a year later, in October 2025, Dr. Sunar's attorney notified WBTV that the charges had been dismissed and expunged from Sunar's record. Counsel requested that either a) the First Report be removed or b) that an addendum be posted disclosing the dismissal and expungement of the charges. WBTV responded that it could "offer [Dr. Sunar] a new article that states the outcome of the case," but that they would not remove or otherwise alter the original post due to its accuracy. Dr. Sunar's attorney's response to WBTV's offer was "Yes please."

On November 11, 2025, WBTV published the requested second article with the title "Charges dropped against Charlotte dentist accused of child abuse in 2024," and the subheading "Charges expunged in October 2025, officials confirm." The Second Report summarized Dr. Sunar's charges and confirmed that the charges had "been expunged on Oct. 10, 2025," explaining that the expungement of Dr. Sunar's charges meant he "was cleared of the charges, and they were dropped from his public record entirely." WBTV provided Dr. Sunar's attorney with a link to the Second Report. Dr. Sunar's attorney replied, "Thank you!"

Nonetheless, the following month Sunar sued for defamation and related claims. The court held that any claims arising from the First Report and related social media posts were barred by North Carolina's one-year statute of limitations in defamation claims. As to the Second Report, the court held,

Dr. Sunar does not contend, nor could he, that any statement in the Second Report is inaccurate. Moreover, the substance of the report is not even defamatory, stating that Dr. Sunar had been cleared of the charges against him and his public record expunged. And finally, the Second Report was prepared at the request of Dr. Sunar's attorney, who responded positively to its publication. In other words, Dr. Sunar seeks to recover on a defamation claim for a truthful publication put out at his request. The law cannot support such a result.

{Also, the media's fair report privilege would support dismissal of Dr. Sunar's defamation claim. The privilege flows from "the absolute privilege which attaches to statements made in the due course of a judicial proceeding." Thus, with respect to reporting on Court proceedings, "[p]laintiff must prove by the greater weight of the evidence that the statement was materially false. If a statement is substantially true, it is not materially false. It is not required that the statement was literally true in every respect. Slight inaccuracies of expression are immaterial provided that the statement was substantially true." Again, here there is no claim of falsity.}

The post "Desire to Undo the Past" Can't Justify Libel Claim Over "Indisputably Truthful" Articles About Criminal Charges + Expungement appeared first on Reason.com.

In 2009, the Supreme Court decided Ricci v. DeStefano. The Justices reversed Judge Sonia Sotomayor's indefensible ruling against the Frank Ricci and the other firefighters. But the Court stopped short of deciding whether New Haven's attempt to avoid liability for disparate impact violated the Equal Protection Clause. Justice Scalia concurred to explain the Court was merely postponing the inevitable question:

But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

Nearly two decades later,  with a very different Supreme Court, this question is now primed for resolution.

Today the Office of Legal Counsel issued an opinion finding that the EEOC's Title VII guidelines are unconstitutional.

EEOC's existing interpretations, including the Uniform Guidelines on Employee Selection Procedures ("Guidelines"), embrace an unconstitutional reading of Title VII. Rather than treating disparate impact as an evidentiary mechanism to smoke out intentional discrimination—imposing liability only when disproportionate adverse effects give rise to a strong inference of intentional discrimination—EEOC's historic interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer's likely intent. Because EEOC's historic approach divorces liability from circumstances giving rise to a strong inference that intentional discrimination occurred, it functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decisionmaking to avoid liability. That approach is unlawful and unconstitutional.

The opinion relies on Allen v. Milligan, which declared for the first time that our Constitution is "color-blind."

Three corrections to that approach are necessary "to resolve the ten-sion between [disparate-impact] claims under [Title VII] and our color-blind Constitution." Allen v. Milligan, No. 25A1314, 2026 WL 1552756, at *1 (U.S. June 2, 2026) (per curiam).

As I observed, this emergency docket opinion may become more significant than Callais, a theme that the Wall Street Journal picked up. Allen made clear that Callais applies to the Equal Protection context. Indeed, the Opinion links Callais back to the Justice Alito's TJ dissental.

Even facially race-neutral actions, when mo-tivated by the purpose of altering racial balance, constitute intentional discrimination against the members of the racial group who are balanced down. After all, "if race played a role in a decision made by a govern-ment actor," or at the behest of a government actor, then race discrimi-nation has occurred and "strict scrutiny applie[s]." Louisiana v. Callais, 146 S. Ct. 1131, 1146 (2026); see also Coal. for TJ v. Fairfax Cnty. Sch. Bd., 146 S. Ct. 541, 545 (2024) (Alito, J., dissenting from denial of certiorari).

This opinion is earth-shattering. The Department of Justice ruled that disparate-impact compels employers to engage in unconstitutional race discrimination.

Just as "the Federal Government is prohibited from discriminating on the basis of race," so too is it "prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or munici-pal—discriminate on the basis of race," unless those laws survive strict scrutiny. Ricci, 557 U.S. at 594 (Scalia, J., concurring) (first citing Bol-ling, 347 U.S. at 500; and then citing Buchanan v. Warley, 245 U.S. 60, 78–82 (1917)). And just as it is unconstitutional for the federal govern-ment to "force[] States to engage in the very race-based discrimination that the Constitution forbids," Callais, 146 S. Ct. at 1142; see also Miller v. Johnson, 515 U.S. 900, 926–27 (1995), so too it is unconstitutional for the federal government to coerce employers to adopt employment policies or make employment decisions motivated by race. Disparate-impact liability does not just raise constitutional doubt in occasional cases; unless narrowly circumscribed, it structurally compels the very racial discrimination that the Constitution forbids.

In the same way that Callais "updated" Gingles, this opinion calls on the Court to "update" Griggs:

Reading Griggs in context and together with the Supreme Court's more recent precedent requires "updat[ing] the framework" for dispar-ate-impact liability "to ensure a constitutional reading and application of" Title VII. Callais, 146 S. Ct. at 1157, 1161 (updating the framework for claims under section 2 of the Voting Rights Act). As Justice Scalia suggested in Ricci, a properly tailored disparate-impact scheme might constitutionally operate as "an evidentiary tool" to "smoke out" practices that present a significant likelihood of intentional discrimination. 557 U.S. at 595 (Scalia, J., concurring); see also City of Rome v. United States, 446 U.S. 156, 177–78 (1980).

This is a similar approach to the one that the Supreme Court took in Callais, which held that section 2 of the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, "imposes liability only when the circum-stances give rise to a strong inference that intentional discrimination occurred." . . . Applying Griggs, Wards Cove, Inclusive Communities, and Callais, we identify three limiting principles on disparate-impact liability that prevent a constitutional collision under current Supreme Court prece-dent. We emphasize, as the Supreme Court has, that no single limiting principle is wholly sufficient; rather, each caveat is essential to avoid the conclusion

I suspect the EEOC will bring suit against firms that have made race-conscious decisions to avoid disparate impact suits (or more likely because they agree with separating people based on race). At that point, the constitutionality of disparate-impact is squarely teed up.

Kudos to Assistant Attorney General Elliot Gaiser and Deputy Assistant Attorney General Josh Craddock for putting forth this remarkable opinion. I also have to give credit to my Manhattan Institute colleague, Gail Heriot, who is cited throughout the opinion. Gail has been beating this sometimes-lonely drum for decades. And she has been right for decades.

The post Office of Legal Counsel Concludes That Disparate Impact Liability Under Title VII Is Unconstitutional appeared first on Reason.com.

The Washington Post just published my article "Build Homes, Don't Seize Them, Mayor Mamdani." Here is an excerpt:

"Block by Block," Zohran Mamdani's "sweeping blueprint" to reduce housing prices in New York City, comes with a dangerous promise. "When necessary," the mayor said on May 26, "we will take aggressive legal action to remove negligent owners and property managers" and transfer ownership to "responsible stewards." The problem: The proposal is an unconstitutional power grab that would exacerbate the city's housing crisis.

The Fifth Amendment's takings clause stipulates that the government may not take "private property" for public use without "just compensation." There is a long-standing debate over the extent to which regulations that constrain the use of property but don't seize it outright qualify as takings. Virtually all jurists and legal scholars, however, agree that outright confiscation does….

If the government could expropriate property at will, it could pursue widespread seizure from anyone using property in ways the party in power disapproves of, or for purposes of transferring it to cronies and favored constituencies. Such abuses are common in authoritarian states, which is one reason the founders inserted the clause into the Bill of Rights in 1791. James Madison and others supported it in part because of arbitrary confiscation by British authorities.

The post My New Washington Post Op ed on NYC Mayor Mamdani's Unconstitutional Housing Policy appeared first on Reason.com.

From al Ghashiyah v. Oster, decided last Thursday by Wisconsin Court of Appeals Judges JoAnne Kloppenburg, Jennifer Nashold, and Chris Taylor:

Al Ghashiyah is the only brother of James C. Charles Casteel. Casteel died in October 2024. Thomas Oster, a longtime friend of Casteel, filed a petition for the formal administration of Casteel's estate and filed Casteel's will with the circuit court.

Casteel's will bequeaths the contents of his estate to certain friends and family members. The will does not bequeath any of Casteel's estate to al Ghashiyah. Al Ghashiyah filed a motion requesting that the court apply Islamic law to the administration of the estate. Al Ghashiyah asserted that, under Islamic law, Casteel's estate must be distributed among Casteel's surviving siblings, with any surviving male siblings receiving twice the share of any surviving female siblings.

At an evidentiary hearing on Oster's petition and al Ghashiyah's motion, al Ghashiyah confirmed that his motion was a request that the circuit court apply Islamic law instead of the laws of the State of Wisconsin, and instead of following Casteel's will. Al Ghashiyah testified that, with his brother's death, al Ghashiyah became the head of the Casteel family, and as head of the family, he has decided that Islamic law is the law that applies to the family.

Al Ghashiyah also testified that he and Casteel did not discuss whether or not Casteel's property should be distributed according to Islamic law, and that, to al Ghashiyah's knowledge, Casteel did not practice the Islamic faith. The court denied al Ghashiyah's motion requesting that the court apply Islamic law….

Al Ghashiyah … argues that the circuit court's denial of his motion to apply Islamic law is discriminatory and violates fundamental rights protected under the "Universal Declaration of Human Rights." … [A]l Ghashiyah does not develop this argument with citation to relevant legal authority that illustrates court error. Rather, al Ghashiyah asserts that "human rights principles are universally applicable" and cites to Presbyterian Church of Sudan v. Talisman Energy, Inc. (S.D.N.Y. 2003) in support of that assertion.

However, in that case, current and former residents of the Republic of Sudan brought suit alleging that an oil company in that country committed "gross human rights violations, including extrajudicial killing, forcible displacement, war crimes, confiscation and destruction of property, kidnapping, rape, and enslavement." Al Ghashiyah does not explain how the Presbyterian Church of Sudan case supports his argument that the court here violated al Ghashiyah's rights when it declined to apply Islamic law to the administration of the estate of Casteel, who the court found expressed no desire that Islamic law should apply.

In his reply brief, al Ghashiyah asserts that courts "routinely consider religious doctrine in … cases where relevant and voluntarily invoked by the parties." He also states that the U.S. Supreme Court has recognized the right of religious communities to arrange their affairs in accordance with their beliefs.

It may be true that in certain circumstances courts may apply and consider international or human rights law, and the rights of religious communities. However, al Ghashiyah does not develop an argument as to how his right to practice Islamic law is relevant to the administration of Casteel's estate, he does not assert any evidence that Casteel invoked Islamic law, and he does not explain his conclusion that the court should recognize the religious beliefs of al Ghashiyah in deciding Casteel's will.

Rather, al Ghashiyah's argument amounts to the conclusory assertion that, because he asked the court to follow Islamic law, it was discrimination and a human rights violation for the court to decline the request. We do not further address this argument as it is undeveloped….

The post "Al Ghashiyah Testified That … as Head of the Family, He Has Decided that Islamic Law Is the Law that Applies to the Family" appeared first on Reason.com.

In Withers v. City of Aberdeen, decided yesterday by Judge Sharion Aycock (N.D. Miss.), both sides had filed briefs containing citations to nonexistent cases; the briefs were drafted by out-of-state counsel, each of whom had local counsel (as the rules generally require). Withers was represented by Wilson with Ridgeway as local counsel; the City was represented by Williams with McClinton as local counsel. I focus here just on the sanctions imposed on local counsel:

Ridgeway is a Mississippi licensed attorney who works for Christian & Small, LLP. She sponsored Wilson's pro hac vice admission in this case and serves as local counsel for Withers. As noted, Ridgeway appears as a signatory to Withers' Opposition to Defendant City of Aberdeen's Motion for Summary Judgment [105], which contained two citations to nonexistent cases. Though she was not the drafter of that document, she admitted to failing to review and verify the accuracy of the legal authority cited therein. In other words, she did not check the cases after authorizing her signature on the filing.

At the hearing, Ridgeway explained that she was unaware of Wilson's AI use but did not attempt to excuse herself on that basis. She explained that she does not personally use AI and that her firm has a policy in place pertaining to AI use. In essence, Wilson would present Ridgeway with a copy of proposed filings drafted by Wilson, and the two would discuss the substance of the same. Despite this communication between the two, Ridgeway admitted to not reviewing the legal citations in those drafts before they were filed, including Withers' Response [105]. Ridgeway accepted responsibility for her role in the violation stemming from the fake cases cited in that filing as well as in others. {Following the show cause hearing, Ridgeway informed the Court that she had self-reported to the Mississippi Bar. The Court finds that this act demonstrates her acceptance of accountability.}

As briefly discussed above, Ridgeway conducted a thorough analysis of all filings submitted on behalf of Withers in this case after entry of the Court's show cause order. The Court appreciates her efforts in attempting to remediate the issue and her acceptance of responsibility but finds that those factors do not shield her from being sanctioned. In addition to admitting her violation of Rule 11, Ridgeway also conceded that her omissions violated this Court's Local Rules. Local Rule 83.1 provides in pertinent part:

Association and Duties of a Resident Attorney. No eligible non-resident attorney may appear pro hac vice unless and until a resident attorney has been associated. The resident attorney remains responsible to the client and responsible for the conduct of the proceeding before the court.

Certainly, resident attorneys are responsible for providing guidance and oversight of non-resident attorneys to ensure that they are complying with procedural and ethical rules. After all, resident attorneys are basically the gateway for out-of-state attorneys to have access to Mississippi's court system. The Court does not take a violation of that core duty lightly. At the same time, taking into account the specific circumstances of this case, it does not find that Ridgeway acted in bad faith. Her omissions were negligent and careless but not purposeful….

McClinton … was a signatory to the two filings submitted on behalf of the City, which contained hallucinatory citations. At the hearing, McClinton explained that he was not aware that the motions at issue were being filed but acknowledged that he had previously given Williams permission to affix his signature on prior filings without reading the documents. Though he was not provided the filings for his review prior to their filing, McClinton did not attempt to use that as an excuse and explained that it was not unreasonable for Williams to have done so based on their course of practice. In other words, he had impliedly given permission for her to do so.

McClinton also explained that only two attorneys practice at his law firm, that he does not use AI in his practice, and therefore does not have an AI policy in place. Much like Ridgeway, McClinton was unaware that his co-counsel, Williams, had used an AI research tool to conduct legal research in the case. McClinton also acknowledged that he should have reviewed the filings when he received the automatic notification of electronic filing and expressed his remorse for having failed to do so. Again, he does not contest his Rule 11 violation.

For the same reasons provided above concerning Ridgeway, the Court finds that he too violated his duties as a sponsoring resident attorney pursuant to this Court's Local Rules. Because he was not the drafter of the filings at issue and did not use AI in this case, the Court has no reason to believe that he acted in bad faith. Like Ridgeway, the Court finds that McClinton acted negligently and carelessly. However, he accepted responsibility for his role in the violation and, like Ridgeway, informed the Court that he had self-reported to the Mississippi Bar following the show cause hearing. The Court credits his candor and steps taken towards holding himself accountable.

In an era of rampant unverified AI usage within the legal field, this case presents a prime example of the risk associated with serving as a rubberstamp when acting as local counsel.

Local counsel were therefore disqualified from the case, ordered to pay $1000 each in fines, and referred to bar authorities. Wilson and Williams, the lawyers who drafted the filings, were fined $2500 and $3500 and otherwise disciplined as well.

The post Nonexistent Case Citations on Both Sides + "Rubberstamp[ing]" by "Local Counsel" appeared first on Reason.com.

Any party, counsel, or member of the public who may have obtained copies of ECF 3009-1 during the time that it was publicly available, including through ECF Court alerts that automatically generate PDF copies filed in the case, shall immediately delete and destroy them.

That, my friend and longtime Internet lawyer Megan Gray and I thought, was unconstitutional as to "member[s] of the public." So Megan and I asked the court for leave to file an amicus brief, on behalf of the Free Law Project (the CourtListener / RECAP people) and the First Amendment Coalition, urging the court to reject the proposed order. We argued that the proposal violates

1. Rule 65 of the Federal Rules of Civil Procedure, because "[a]n injunction … binds a non-party only if it … either abets the enjoined party in violating the injunction, or is legally identified with the enjoined party," CFPB v. Howard Law, P.C., 671 F. App'x 954, 955 (9th Cir. 2016) (cleaned up) (emphasis added), and Proposed Amici have no relationship with the original parties;
2. the Due Process Clause, under which restraints on Proposed Amici could not be imposed without "notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quotations omitted);
3. the First Amendment, because "[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it," Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975), and this principle extends to public information sites such as Free Law Project as well as to advocacy groups such as the First Amendment Coalition;
4. 47 U.S.C. § 230, because CourtListener is an "interactive computer service" that cannot be ordered to remove material posted at the direction of a user (which is how court filings are hosted by Free Law Project).

We're glad to report that, shortly after we filed the proposed amicus brief, Meta said it would withdraw the sealing request, and with it the request for the public-must-delete-and-destroy-its-copies order. Here were the details of our argument:

[* * *]

[I.] The ECF 3048 Proposed Order Would Violate Rule 65

"Consistent with historical practice, a federal court exercising its equitable authority may enjoin named defendants from taking specified unlawful actions. But under traditional equitable principles, no court may 'lawfully enjoin the world at large' …." Whole Woman's Health v. Jackson, 595 U.S. 30, 44 (2021) (quoting Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (L. Hand, J.)). Federal Rule of Civil Procedure Rule 65 applies this principle. Lynch v. Rank, 639 F. Supp. 69, 72 (N.D. Cal. 1985) (citing Rule 65 and Alemite). "The law is clear that a court may not enforce an injunction against a nonparty who acts independently of the enjoined party." Blockow­icz v. Williams, 630 F.3d 563, 568 (7th Cir. 2010) (cleaned up). "It is firmly established that 'a court may not enter an injunction against a person who has not been made a party to the case before it.'" LifeScan Scotland, Ltd. v. Shasta Technologies, LLC, No. 11-cv-04494-WHO, 2013 WL 4604746, at (N.D. Cal. Aug. 28, 2013) (citing Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996)).

Rule 65(d)(2) provides the only exceptions to this rule:

The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties' officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

An injunction thus binds a non-party only if it "either 'abets the enjoined party' in violating the injunction, or is 'legally identified' with the enjoined party." CFPB v. Howard Law, P.C., 671 F. App'x 954, 955 (9th Cir. 2016) (cleaned up) (citing NLRB v. Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 633 (9th Cir. 1997)). And "the fact that [a third party] is technologically capable of removing the postings does not render its failure to do so aiding and abetting." Blockowicz, 630 F.3d at 568.

Proposed amici have no relationship with any of the parties in this case (other than being users of defendants' products and services), nor any connection to the underlying litigation. Thus, under Rule 65, this Court may not order proposed amici as non-parties to delete or destroy any documents in their possession.

[II.] The ECF 3048 Proposed Order Would Violate the Due Process Clause

Nonparties to a lawsuit, who received "neither notice of, nor sufficient representation in" the proceedings, cannot be bound by the court's decision "as a matter of federal due process." Richards v. Jefferson County, Ala., 517 U.S. 793, 805 (1996). "Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (cleaned up). And the notice must be coupled with service of process: Actual notice "does not alone meet the formal requirements for obtaining personal jurisdiction" over someone whom a party seeks to bind to a court order. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 958 (4th Cir. 1999).

A federal court may not issue without "personal jurisdiction over the parties"; "it may not attempt to determine the rights of persons not before the court." Zepeda v. U.S. Immigr. & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983).

It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process. The consistent constitutional rule has been that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.

Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 110 (1969) (citations omitted). "Injunctive relief, by its very nature, can only be granted in an in personam action commenced by one party against another in accordance with established process. Consequently, a party cannot obtain injunctive relief against another without first obtaining in personam jurisdiction over that person or someone in legal privity with that person." R.M.S. Titanic, Inc., 171 F.3d at 957.

Due process principles are especially applicable to restrictions on speech. In Carroll v. President & Comm'rs of Princess Anne, the Supreme Court held that even a "10-day restraining order …, issued ex parte, without formal or informal notice to the petitioners or any effort to advise them of the proceeding, cannot be sustained." 393 U.S. 175, 181 (1968). Here, the ECF 3048 proposed order would require members of the public to permanently delete and destroy their copies of the relevant document, without their having been given notice and the opportunity to be heard, and thus would violate both the Due Process Clause and the First Amendment. And though proposed amici learned of this proposed injunction by happenstance and seek to proactively oppose it, the injunction would nonetheless violate the Due Process Clause as to all other third parties that it might cover.

[III.] The ECF 3048 Proposed Order Would Violate the First Amendment

The proposed order compelling members of the public to delete or destroy information they lawfully obtained from court records would result in an unconstitutional prior restraint on speech. "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Alexander v. United States, 509 U.S. 544, 550 (1993). An order to delete or destroy court records that are lawfully obtained, which is inherently a "takedown order" for material that has been distributed or published, "is a classic prior restraint of speech." Garcia v. Google, Inc., 786 F.3d 733, 747 (9th Cir. 2015). A "prior re­straint on publication" is "one of the most extraordinary remedies known to our jurisprudence" and "the most serious and the least tolerable infringement on First Amendment rights." Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559, 562 (1976).

"Once the government has placed … information in the public domain, reliance must rest upon the judgment of those who decide what to publish …." Florida Star v. B.J.F., 491 U.S. 524, 538 (1989) (cleaned up). Where "true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496-97 (1975).

In Florida Star, a newspaper was sued by a sexual assault victim for publishing her name after lawfully obtaining it from a publicly released police report. 491 U.S. at 526. The police improperly released the report with the victim's name. Id. at 526-27. Yet the Supreme Court held that the newspaper still had a right to publish the released information, despite this error on the part of the police. Id. at 538. Therefore, even if the court record at issue was mistakenly filed on the public docket, the press and public cannot be restrained from retaining or publishing it. See Neb. Press Ass'n, 427 U.S. at 568 (holding that even if a preliminary hearing could have been closed, "once a public hearing had been held, what transpired there could not be subject to prior restraint").

Indeed, as the Supreme Court held in Bartnicki v. Vopper, even if a document on matters of public concern (and public court records would surely qualify) was originally illegally leaked, people who innocently obtained it are free to publish it. 532 U.S. 514, 535 (2001). "The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed." Nieman v. VersusLaw, Inc., 512 F. App'x 635, 637 (7th Cir. 2013) (holding that a legal research website that published "links to information and documents in the public record" was protected by the First Amendment).

And this extends to all publishers of information, not just traditional mainstream media. "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. FEC, 558 U.S. 310, 352 (2010) (cleaned up). The Supreme Court "has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers." Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1290 (9th Cir. 2014) (applying this principle to defamation contexts as well, id. at 1291). And in Bartnicki, the Court expressly made clear that it drew "no distinction between the media respondents" and a nonmedia defendant. 532 U.S. at 525 n.8.

Like the restriction on the newspapers in Florida Star, the Proposed Order would require proposed amici to conceal information that was lawfully accessed from the public record. The First Amendment continues to protect their right to distribute the information they legally obtained directly or indirectly from PACER.

[IV.] The ECF 3048 Proposed Order Would Violate 47 U.S.C. § 230 as to Free Law Project

Documents are made available on the CourtListener website when CourtListener users download the documents from PACER and use the RECAP browser plugin to automatically upload them to CourtListener. (Lissner Decl. ¶ 4.) Some users presumably did that with regard to Doc. 3009-1, which the Proposed Order would require Free Law Project to delete.

CourtListener is therefore an "interactive computer service" under 47 U.S.C. § 230(f)(2), much as Yahoo! or Yelp are interactive computer services. See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (Yahoo!); Hassell v. Bird, 5 Cal. 5th 522, 540 (2018) (plurality opin.) (Yelp). And, just as Yelp could not be ordered to remove material posted at the direction of a user, Hassell, 5 Cal. 5th at 547; id. at 548 (Kruger, J., concurring in the judgment), so Free Law Project cannot be ordered to remove material posted at the direction of a user. See also Weitsman v. Levesque, No. 19-CV-461 JLS (AHG), 2020 WL 6825687, at (S.D. Cal. Nov. 20, 2020) (stating that "the Court has concerns about ordering third parties, including Twitter, Facebook, Instagram, and YouTube, to take action against Defendant should he fail to remove the material in accordance with the injunction" against Defendant, given § 230, and therefore declining to issue such an injunction against the third parties); Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) (likewise concluding that § 230 precludes orders requiring a hosting service to remove user-posted material); Smith v. Intercosmos Media Group, Inc., No. 02-1964, 2002 WL 31844907 (E.D. La. Dec. 17, 2002) (same); Medytox Solutions, Inc. v. Investorshub.com, Inc., 152 So.3d 727 (Fla. Ct. App. 2014) (same).

The post Attempt to Seal Court Filing, and to Order Members of the Public to Destroy Their Copies, Withdrawn appeared first on Reason.com.

I at first thought not. Naturally, if a citation is critical to the opponent's argument, you'll want to read the case the opponent is citing, and alert the court if the case doesn't actually exist. But many citations are on tangential points, cited for uncontroversial matters; there isn't much reason to try to track them down.

Indeed, even using a tool such as Westlaw's document analysis tool, which can do a good job checking citations in bulk takes at least some time and therefore client money: One needs to not just run the tool but closely analyze any errors it claims to find. And then one would have to spent time and money confirming that they are genuine errors and not typos, since one doesn't want to seem to be making a mountain out of a molehill, and writing up the analysis.

But it now seems clear that quite a few judges do get annoyed not just at the lawyers whose briefs contain hallucinations, but also at opposing counsel who don't warn the court about those hallucinations. I saw this most recently in Landberg v. City of N.Y., where appellate court judges admonished the opposing counsel (to be sure, much less harshly than they admonished the directly offending lawyer); see this video, starting roughly at the 19-minute mark. Here's an excerpt from an article at 404 Media (Samantha Cole):

[T]he attorney [Friscia] representing the owner of the property that faces the sidewalk, stood up before the judges next. He started to speak, but [Presiding Justice Hector] LaSalle wasn't finished with the dressing-down. "He's raising a court of appeal standard that doesn't exist," LaSalle said, interrupting Friscia. "He was using it as a component of his argument, and you didn't think you should bring it to our attention?"

"I didn't notice in particular that the principle of law that he was citing was incorrect," Friscia said.

"I'm sorry, I'm going to give you every opportunity to make your argument," LaSalle said. "But I'm befuddled. I honestly am. I'm absolutely—and I'm not here to—lawyers make mistakes. It's not an easy profession. I don't want to sit here beating up on lawyers, but we rely on the bar so much in what we do. So the first thing that I did, I don't want to speak for my colleagues, but after seeing what he wrote, when I went to your papers, I expected to see something referencing […] It wasn't one case, counsel, it was several cases, and you didn't see fit to bring it to our attention either. It's just striking to me."

Friscia, now with the fear of the bar in him, apologized profusely. "Your honor, I apologize to the court. I will do further due diligence going forward from this point on."

"I hope so," LaSalle said. "You should apologize to your client, not to me."

"Yes, I apologize for that," Friscia said. "And I will, going forward, check every single case, even if it stands for, you know, general principles of law, like the construed liberally to effectuate remedial purpose, and things like that. I will bring them to the court's attention." …

And the judges then turned to the lawyer (Freedman) representing the City of New York:

She got the same questioning from [Justice] Nelson: "So, how do you explain your failure to bring to the attention of this court that a brief was filed with this court by appellant's counsel with apparent fabrications and misrepresentations?"

Freedman tried to explain. "I certainly read the briefs," she said. "I certainly read all of the briefs here, but I certainly didn't focus on it, because it was not our issue. And I do apologize to the court for not catching that, but I tended to focus more on the issue of prior written notice."

In January, I noted three trial court cases taking the same view:

[1.] From Nuvola, LLC v. Wright, decided Nov. 21 by Hennepin County (Minn.) Judge Laurie Miller:

For the reasons the Court has outlined above, the Court finds Mr. Knaak's failure to check the legal authority cited in his brief and his reliance on non-existent case law in his advocacy before this Court raises a question as to whether he breached his duty of competence to Ms. Wright. The Court will refer Mr. Knaak to the Office of Lawyer's Professional Responsibility (OLPR) for appropriate action. Any mitigating factors proffered by Mr. Knaak, including his compliance with his obligation to educate other lawyers about this issue under this Order, may be relevant to a future ethics investigation and any subsequent recommendations by the OLPR, but the Court will not analyze them here as the Court does not make explicit findings on or enforce ethics rules.

The Court also finds troubling Mr. Braun's [i.e., opposing counsel's] failure to identify or bring the non-existent case citations to the Court's attention before the hearing on the motion to compel arbitration. TheCourt should not be left as the last line of defense against citations to fictional cases in briefs filed with the court.

While Mr. Braun did not create or rely on the fake citations, he also did not detect them. Instead, he admitted he did not review the cases cited by his opponent. If he had checked out the citations in the brief to which he was responding, he no doubt would have brought the issue to the Court's attention by the time of the motion hearing, and that would have allowed the Court to take the non-existence of the cited cases into consideration as it heard the argument on the merits of Defendant's motion to compel arbitration, instead of leaving the Court to discover that issue on its own, after the hearing was concluded.

The Court does not find Mr. Braun's conduct to be sanctionable, as he did not cite any non-existent cases to the Court. [Nonetheless], the Court reminds counsel that it is the obligation of counsel on both sides to respond to each other's arguments, including completing a basic cite-check of the cases cited by the other side.

The Court urges all lawyers to take seriously their obligation to ensure that the legal arguments being made and considered by theCourt rest upon good law, not fictional cases dreamed up by a computer. The development of the common law relies upon the accurate citation of existing caselaw, as lawyers and courts analyze new disputes. Infection of the body of caselaw by fake Al-generated citations threatens the integrity of the common law.

The court earlier in the opinion noted (focusing Mr. Knaak's failure to check his own work) that:

Westlaw now provides a tool called "Quick Check" that allows a user to upload a lawyer's own work or the work of an adverse party and quickly identify a list of authorities cited. The Court did not use this tool to discover the non-existent citations, and does not endorse it as a substitute for traditional citation checks. The Court followed the old-fashioned process of looking up the key cases cited by the lawyers, to read them and decide whether it agreed with the parties' reading of pertinent caselaw. However, to the extent a lawyer may wish to conduct a faster citation-check process, the availability of the "Quick Check" tool demonstrates that the investigation required of a lawyer by Rule 11 can be accomplished efficiently through readily available methods.

[2.] Judge Sharion Aycock (N.D. Miss.) reached a similar conclusion in Billups v. Louisville Municipal School Dist.:

The Court also observes that the Defendant … could have flagged the fictious citation and misrepresentation of case law [by Plaintiff's counsel] in a reply brief or supplemental filing. The Court takes this opportunity to issue a charge. Going forward, the Court expects all parties to assist in maintaining the integrity of the judicial process and to be diligent in flagging AI misuse. "[O]therwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law." Elizondo v. City of Laredo (S.D. Tex. 2025).

[3.] And Judge Marina Garcia Marmolejo's order in Elizondo did indeed take the same view:

The Court also observes that Defendant, the City of Laredo, could have flagged these fictitious citations in a reply brief or supplemental filing. Although this oversight does not rise to the level of sanctionable conduct, the Court expects all parties to assist in maintaining the integrity of the judicial process by alerting the Court to such errors. The Court encourages greater diligence in flagging citation errors in the future—otherwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law.

I doubt you'll get sanctioned for not spotting hallucinations in your opponent's work. But it looks like you might get the judge annoyed at you, which is not what you want. So if you have Westlaw, use its Litigation Document Analyzer tool on opponents' filings and not just on your own.

The post Obligation to Cite-Check the Cases Cited by the Other Side and Report Errors to Court appeared first on Reason.com.

Shanks was an archaeologist employed at the National Park Service. His supervisor {Mr. Russo}, also an archaeologist, … and Mr. Shanks were the subject of an inspector general's investigation …. After an investigation, the inspector general issued a report that included the following facts, which are largely undisputed.

A collector approached Mr. Russo with an offer to sell the Park Service items retrieved from burial mounds on Tyndall Air Force Base. The report refers to these as potsherds, defined as pottery fragments found at archaeological sites. Items placed with human remains as part of a death rite are known as funerary objects.

Mr. Russo concluded the Park Service could not purchase the collector's items because if, as the collector said, they had been obtained at Tyndall, they would be considered funerary objects, whose purchase would be illegal. For convenience, this order sometimes refers to these items as potsherds, not funerary objects, without noting each time any uncertainty about their actual nature.

To avoid the perceived legal obstacle to purchasing these items, Mr. Russo enlisted a straw purchaser, who provided Mr. Russo a $1,000 check payable to the collector. Mr. Russo apparently intended to obtain the items to donate them to the State of Florida for preservation. Mr. Russo, accompanied by his subordinate Mr. Shanks, traveled to the collector's location, delivered the check to the collector, and took possession of the items, together with two Native American skulls. The skulls found their way to the State of Florida, which, at the time of the inspector general's report, was in the process of repatriating them. But the potsherds wound up on a shelf in Mr. Russo's office.

The inspector general concluded Mr. Russo's and Mr. Shanks's actions did not violate the most closely implicated federal criminal statute, 18 U.S.C. § 1170, which is entitled "Illegal trafficking in Native American human remains and cultural items."

Under § 1170(a), it is a crime to sell or purchase Native American human remains or to use or transport them "for sale or profit." Mr. Russo apparently purchased only the potsherds, not the skulls, and the skulls were not used or transported for sale or profit. On those facts, there was no violation of this statute.

Under § 1170(b), it is a crime to sell or purchase Native American cultural objects "obtained in violation of the Native American Grave Protection and Repatriation Act" or to use or transport such objects "for sale or profit." Mr. Russo purchased the potsherds—the straw buyer does not change this—but the inspector general was unable to establish that the collector obtained the potsherds after NAGPRA's 1990 enactment. If the collector obtained them earlier, there was no violation of § 1170(b).

Moreover, the collector purportedly had a permit to excavate at Tyndall, and while the absence of a record at Tyndall verifying this would ordinarily refute the claim, many of Tyndall's records were destroyed in Hurricane Michael. If the collector legally obtained the items, even after NAGPRA's enactment, their purchase by Mr. Russo was not a violation of § 1170(b). And in any event, the inspector general's report directly implicated only Mr. Russo, not Mr. Shanks, in purchasing the items. Neither Mr. Russo nor Mr. Shanks used or transported the objects for sale or profit….

[Defendant] Ms. Schwadron … is an archaeologist who worked for the National Parks Service and may have provided the information that triggered the inspector general's investigation. The second defendant, Public Employees for Environmental Responsibility ("PEER"), is a nonprofit corporation that, according to the complaint, "supports current and former public employees who seek a higher standard of environmental ethics and scientific integrity within their agencies … by defending whistleblowers, shining the light on improper or illegal government actions, working to improve laws and regulations, and supporting the work of other organizations." …

Shanks alleged that defendants stated that he "trafficked stolen Native American human remains" and implied that he "committed criminal acts involving Native American human remains." …

Shanks also claims:

Plaintiff has suffered damages as a result of Defendants' actions including, but not limited to: (a) Loss of a sixteen-year federal career, including pension and benefits, valued at approximately $2 million. (b) Loss of a university press book contract when other contributors pulled out of the project due to defamatory statements from Defendant SCHWADRON. (c) Removal from professional panels and working groups, causing reputational harm and lost opportunities. (d) Severe emotional distress and humiliation.

The court allowed Shanks' claim to go forward:

The critical question … [is] whether the defendants' allegedly false statement that he trafficked stolen Native American human remains, or a collection of statements that in context imply he did so, could be found to be defamatory. "Trafficking" can be defined as "[t]he act of transporting, trading, or dealing, esp. in illegal goods or people." But a law enforcement officer does not traffic in drugs when seizing them for legitimate purposes, and a federal archaeologist does not traffic in human remains when obtaining them by proper means to have them repatriated.

It is not clear the means used here were proper, and the defendants had every right to criticize the process. That does not mean, however, that the defendants were entitled to accuse Mr. Shanks of trafficking in "stolen" human remains. Even if acquiring the remains in connection with a straw purchase of the potsherds could be labeled trafficking, and even if Mr. Shanks could be deemed a participant in that trafficking, the assertion that the remains were "stolen" adds a defamatory element.

Mr. Russo acquired the remains from a collector—PEER called him a "known looter"—and delivered them free of charge to the State of Florida for repatriation. Without more, that falls well short of trafficking in stolen human remains. {[And] Florida's fair-report privilege does not apply if, as the complaint alleges, the defendants' statements were not a fair description of the inspector general's report.} …

The court noted, though, that another of PEER's statements mentioned in the Complaint, "the reference to 'blatant desecrations,'" "was a nonactionable opinion."

Jamie Marie Ito (Ito Law PLLC) represents Shanks.

The post Archaeologist's Libel Claim Over Allegations of "Trafficking in Stolen Native American Human Remains" Can Go Forward appeared first on Reason.com.

The post Today in Supreme Court History: June 9, 1970 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

On June 9, 2025, The Guardian published an Article on its website at https://www.theguardian.com/us-news/2025/jun/09/hegseth-wiretap-inquiry-justin-fulcher …. The Article contains numerous false and defamatory statements of and concerning Mr. Fulcher that are attributed to four unnamed sources. These statements include:

1. "Hegseth aide upended Pentagon leak inquiry with false wiretap claims".
2. "ex-Doge staffer Justin Fulcher suggested he had evidence of wiretap that would help investigation".
3. "Days before Pete Hegseth fired three top aides last month over a Pentagon leak investigation into the disclosure of classified materials, according to four people familiar with the episode, a recently hired senior advisor said he could help with the inquiry."
4. "The advisor, Justin Fulcher, suggested to Hegseth's then chief of staff, Joe Kasper, and Hegseth's personal lawyer, Tim Parlatore, that he knew of warrantless surveillance conducted by the National Security Agency (NSA) that had identified the leakers."
5. "Fulcher offered to share the supposed evidence as long as he could help run the investigation, three of the people said. But when he eventually sat down with officials, it became clear he had no evidence of a wiretap, and the Pentagon had been duped."
6. "The problem was that development was not communicated to the White House—so several Trump advisors who were told of the NSA wiretap claim believed that was part of the 'smoking gun' evidence against the three aides fired by Hegseth, until they developed their own doubts."
7. "The Guardian revealed last month that there were unsubstantiated NSA warrantless wiretap claims underpinning the leak investigation, but its origin story and the involvement of Fulcher in the controversy has not been previously reported."
8. "It was not immediately clear why Fulcher chose to become involved in the investigation, but several days after he was replaced as a Doge lead, he went to Kasper and expressed a willingness to help with the investigation, which Kasper attributed to him wanting to prove his worth, two of the people said."
9. "Kasper told Fulcher to go to Parlatore, who had been tasked with supervising and managing the investigation. When Fulcher approached Parlatore, he suggested that he knew of NSA intercepts supposedly showing that Caldwell had leaked using his personal phone, the two people said."
10. "Looking back on the chain of events, three people familiar with the conversations described Fulcher's claims as conveniently dovetailing with prevailing suspicions at the time about Caldwell printing lots of documents and his efforts to have the leak investigation shut down."
11. "Still, a cursory check at that stage into the NSA claims [by Mr. Fulcher] would have shown them to be false."
12. "The claims [by Mr. Fulcher] were relayed to Hegseth and the White House as being accurate."

In truth, Mr. Fulcher never suggested, stated or otherwise communicated to Joe Kasper, Tim Parlatore, or anyone else that the NSA had conducted warrantless surveillance that identified the source(s) of the leak alleged in the Article, or that Mr. Fulcher had access to such surveillance. Further, Mr. Fulcher never asked Joe Kasper, Tim Parlatore, or anyone else if he could join or assist with an investigation into the leak alleged by the Article, nor did he tell anyone that he could "help run" it….

The Guardian acted with at least reckless disregard for the truth, by consciously disregarding readily available information that showed that the false statements were at least highly likely to be false. Among other things, the NSA is prohibited by law from intentionally targeting United States citizens, persons known to be located within the United States and communications in which the sender and recipients are known to be located within the United States. See 50 U.S.C. § 1881a. Further, the NSA is only authorized to conduct electronic surveillance without a court order for the purpose of acquiring "foreign intelligence" that consists of communications exclusively between foreign powers. See 50 U.S.C. § 1802; see also United States v. U.S. Dist. Ct. for E. Dist. of Mich., S. Div., 407 U.S. 297 (1972) (compliance with Fourth Amendment required for domestic national security matters).

The subjects of the purported warrantless wiretaps alleged by the Article, were, at all relevant times, United States citizens and the leak alleged in the Article was to one or more media outlets located within the United States. As such, the NSA could not have conducted the warrantless searches described in the Article. Moreover, Joe Kasper and Tim Parlatore, as senior officials of the Department of War, and the referenced advisors for President Trump, at all relevant times, had full knowledge of the prohibition on targeting United States citizens and those located within the country, and thus the Article's allegations that Mr. Fulcher had informed Kasper (who was terminated from his position with the Department of War before Mr. Fulcher even began working there) and Parlatore of the existence of purported warrantless wiretaps of United States citizens, and that Kasper, Parlatore and advisors for President Trump believed Mr. Fulcher's alleged statements or had been "duped," are implausible.

Further, had the false statements of and concerning Mr. Fulcher been true (which they are not), it is reasonably expected that Mr. Fulcher would have been disqualified from a position with the government, instead of being brought on as senior advisor for the Secretary of War, Pete Hegseth, as acknowledged in the Article. In addition, in relying on the four unidentified sources for the false statements, The Guardian knew, or should have known, that these sources had an obvious bias against Mr. Fulcher because, among other things, and on information and belief, Mr. Fulcher replaced, at least in part, the role(s) occupied by one or more of the sources, rendering these sources and their statements inherently unreliable.

The Guardian, in making the false statements, also unreasonably believed the accounts provided by the four unnamed sources, who, on information and belief, had been terminated from their government positions, over the express denials of Mr. Fulcher, who at all relevant times, remained in good standing with the United States Government, and who spoke to Hugo Lowell, the author of the Article who resides in Washington, D.C., over the telephone prior to publication and provided a detailed explanation (in addition to the statement published in the Article) as to why the statements at issue were false.

Fulcher claims that the article's publication interfered with three business deals that could have yielded up to about $20M in income.

Note that Fulcher is represented by Ryan Stonerock, Steven Frackman, and Dilan Esper (Harder Stonerock LLP). The firm is a prominent libel law firm, and the one lawyer of the three whom I know in some measure, Dilan Esper, is a serious lawyer: He's been cited in various VC posts, and also has often been seen in the comments, where I've generally found his posts to be quite substantive. Of course, the quality of the lawyers is no guarantee that the lawsuit will prove successful.

The post Ex-DOGE Staffer, Ex-Pete-Hegseth Advisor Justin Fulcher Sues the <i>Guardian</i> for Libel appeared first on Reason.com.

From a decision by Judge Fernando Olguin (C.D. Cal.) in Satish Dat Beast v. [Sabrina] Carpenter, filed May 8 but just posted on Westlaw:

On April 9, 2026, Plaintiff filed a Complaint and a Request to Proceed In Forma Pauperis. Plaintiff brings this suit because certain recording artists allegedly "are committing defamation (libel and slander) and/or the dignitary tort of the invasion of privacy by talking about President Donald John [T]rump in a negative manner which could be perceived as violation of the Alien and Sedition Acts." Plaintiff also alleges that the Grammy Awards "have become a public nuisance" and are "committing industrial espionage" with television networks through their programming selections. Plaintiff seeks, among other things, an order precluding Defendants from advertising to him on cable television broadcasts.

No dice, says the court, which had to screen the case because plaintiff sought to sue with a waiver of filing fees.  The court notes that plaintiff (who "often uses the name Ronald Satish Emrit") is a frequent and frivolous litigant, and that the particular complaint's allegations are 'clearly baseless,' 'fanciful,' and 'delusional.'"

The post "Plaintiff Also Alleges That the Grammy Awards 'Have Become a Public Nuisance' and Are 'Committing Industrial Espionage'" appeared first on Reason.com.

Earlier today, in the case of California v. Mullin, the US District Court for the District of Massachusetts issued a decision striking down the Trump Administration's $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers and researchers with a variety of specialized skills). Judge  Leo Sorokin ruled that the plan is illegal because it usurps Congress's power to tax. He relies in part on the Supreme Court's recent decision in Learning Resources, Inc. v. Trump, the tariff case I helped litigate:

The Court begins with Plaintiffs' assertion that the Policy intrudes upon Congress's
taxing power. The first inquiry is whether the $100,000 payment requirement constitutes a tax. The parties quibble about whether the requirement resembles a tax or a "penalty," as characterized by two Supreme Court precedents: Bailey v. Drexel Furniture Company and National Federation of Independent Business v. Sebelius….

Here, the $100,000 payment requirement for all H-1B petitions does not aim to establish that hiring H-1B workers is illegal. The payment is not a penalty, just as the IRS fee in Sebelius was not, because it is not "punishment for an unlawful act or omission." Id. at 567. Hiring workers pursuant to the H-1B program is plainly lawful. Of course, rendering the hiring of H-1B workers "unlawful" would eliminate the program established by Congress through the statute, which would raise a different separation-of-powers concern…

Furthermore, Defendants claim that the $100,000 payment requirement is "a regulatory
payment," which is "not the same as a tax…"  This is mere ipse dixit. Defendants offer no definition for what constitutes "a regulatory payment," cite no cases or statutes employing the term, and advance no reasoned argument explaining how this term encompasses something different than a tax or a penalty….

That does not end the Court's analysis. While the Constitution exclusively vests
Congress with the "Power To lay and collect Taxes, Duties, Imposts, and Excises," U.S. Const. art. 1, § 8, cl. 1, Congress can delegate the taxing power to the executive branch so long as it "clearly" indicates "its intention to delegate." Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 224 (1989). Thus, the relevant inquiry here is whether the provisions of the INA granting the President discretionary powers to regulate the entry of noncitizens reflect a delegation of Congress's taxing power. Under INA § 212(f), the President has the authority to "impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. § 1182(f). INA § 215(a) additionally grants the President the power to impose "reasonable rules, regulations, and orders" as well as "limitations and exceptions" to the entry of noncitizens. Id. § 1185(a)(1).

Plaintiffs argue that these provisions do not confer the power to impose taxes, relying on the Supreme Court's recent guidance in Learning Resources. That case involved a challenge to the President's imposition of tariffs under the IEEPA….. The
IEEPA permits the President to "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any . . . importation or exploration of . . . any property in which any foreign country or a national thereof has any interest" when responding to a national emergency. Id. at 636. The Court found that the IEEPA does not delegate taxing powers to the President, noting that the specific powers listed in the IEEPA do not include "any mention of tariffs or duties." Id. at 642. The Court further noted that the power to "regulate . . . importation" does not encompass the power to tax, because the term "regulate" "means to 'fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule to restriction; to subject to governing principles or laws'"—none of which captures the power to tax. Id. at 642-43…

Applying Learning Resources to the case at hand, the Court finds that INA §§ 212(f) and 215(a) do not delegate taxing power to the President. These sections allow the President to impose "restrictions," "rules," "regulations," "orders," "limitations," and "exceptions" to the entry of noncitizens to the United States. Like the powers delineated in the IEEPA, none of these terms, by their ordinary meaning, include the power to tax.

I agree with the court's analysis, and am glad the tariff case turned out be a useful precedent here. The court also ruled the imposition of the $100,000 fee violates the Administrative Procedure Act.

I have previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.

Obviously, today's decision will almost certainly be appealed, and the legal battle will continue. But, especially after Learning Resources, I am guardedly hopeful the various groups challenging the fee will prevail.

NOTE: In the original version of this post, I  misidentified Judge Leo Sorokin as the late Judge H. Lee Sarokin. I apologize for the error, which has now been fixed.

The post Federal Court Invalidates Trump's $100,000 H-1B Visa Fee as Illegal Usurpation of Congress' Power to Tax appeared first on Reason.com.

Bloomberg Law published an unusual Op-Ed by retired Judge Diane Wood of the Seventh Circuit. Judge Wood discusses the Judge Ross situation, but leaves much out. I think what Wood did not say is far more important than what she did say.

First, here is how Judge Wood describes the facts:

The misconduct was of a personal nature: Judge Ross was engaged in a sexual relationship with a law-enforcement officer whose department regularly appeared before that judge.

If a student at the University of Chicago offered that summary of the case, she would be failed. Judge Ross's sexual activity was appalling, but the most severe transgression was lying to the Chief Judge of the Circuit and the Chief Judge of the District. The closest Judge Wood got to acknowledging the dishonesty was this sentence:

Because Ross ultimately confessed everything and expressed what the committee regarded as genuine remorse…

This is a very roundabout way of saying she confessed to the sex and confessed to lying.

Second, Judge Wood offers no comment about the Eleventh Circuit Judicial Council's decision to issue a private reprimand. The most she will say is that the Judicial Conduct & Disability Committee did not err in affirming that decision.

The JC&D Committee had to decide what would most likely produce the desired result—permanent cessation of that kind of behavior. It also had to decide whether it believed that the judge's remorse and willingness to mend her ways were genuine. Others may have decided differently, but I see nothing here that casts doubt on the genuineness or integrity of the decisions the JC&D Committee made.

Why wouldn't the decision be genuine or have integrity? The relevant question is whether it is correct as a matter of law. But even this question is constrained, as the JC&D Committee's review was limited to a deferential standard. Here is the entirety of the analysis:

In light of our review for errors of law, clear errors of fact, or abuse of discretion, and in deference to the Circuit Judicial Council's consideration of the special committee's review of the evidence, we affirm the Circuit Judicial Council's unanimous decision concluding that the subject judge's actions constituted judicial misconduct. The special committee conducted a thorough investigation and afforded the subject judge all the process that was due under the JC&D Act and the Rules. Accordingly, we find no error of law or abuse of discretion in the special committee's investigatory process. And we conclude that the remedial measures ordered by the Judicial Council under 28 U.S.C. § 354(a)(2)(A) are appropriate and proportionate to the Judicial Council's findings in relation to the seriousness of the misconduct, balanced against the subject judge's correction of the prior false statements and subsequent candor with the special committee, the special committee's assessment that the subject judge is unlikely to engage in similar misconduct in the future, and the subject judge's otherwise exemplary service to the court.

The finding was affirmed based on no "abuse of discretion" or "error of law." This is not exactly a ringing endorsement of the Eleventh Circuit's ruling, which I'll note had no noted dissents--the only name on the document was Chief Judge Pryor. Does Judge Wood think the Eleventh Circuit Judicial Council made the right decision in the first instance? We don't know.

Third, Judge Wood suggested that there are limits on how judges can be reprimanded. She suggests that taking away cases from a judge amounts may be unconstitutional:

Some have argued that this system is unduly solicitous of judges who engage in behavior so obviously unbecoming a federal judge. They contend that, at a minimum, this kind of misbehavior should always be made public. But there is only so far that the Conduct Act can go before it bumps into the constitutional protections for a judge's tenure in office.

Indeed, some think that depriving the judge of her caseload is a de facto temporary removal from office and thus beyond the power of the judiciary. Critically, however, the judge is actually not removed and continues to receive her salary.

Where has Diane Wood been on the Pauline Newman case? Has she published any op-eds criticizing Chief Judge Kimberly Moore? Why did she not join former-Judge Paul Cassell's amicus brief in support of Judge Newman's cert petition?

Fourth, Judge Wood makes it seem like no other punishments were possible. She doesn't state the obvious: the reprimand should have been made public. Judge Ross could have kept her cases, but she would have faced litigants who perceive a plausible conflict of interest. That act would have been punishment by itself.

Fifth, Judge Wood reflects on her own tenure:

As chief judge of the US Court of Appeals for the Seventh Circuit for nearly seven years, I well appreciate the constitutional tight-rope that these cases present.

Chief Judge Wood helmed the Seventh Circuit during the final years of Richard Posner's decline. I think an entire book could be written about how Judge Posner flouted the rules of judicial conduct, yet his colleagues took no actions against him. Maybe he should have been given the Pauline Newman treatment so he could spend all of his efforts on writing books. Indeed, Judge Posner's final act before resigning was to publish a bizarre book that attacked his colleagues based on confidential information. I do not think Judge Wood was the right person to comment on failing to take adequate action against a misbehaving judge.

Finally, I mention one last point, with some hesitation. Arthur, Gabe, and I pitched our essay to Bloomberg Law. The editor promptly got back to us and wrote "I don't think this fits into our coverage." Apparently, Judge Wood's non-defense of the courts does fit into the coverage. Go figure.

This entire piece feels forced. I think someone in the judicial apparatus asked a well-regarded, retired judge to defend the handiwork of the Eleventh Circuit. But she couldn't quite do that. She said very little, and reinforced how indefensible the Eleventh Circuit's private reprimand was. I'm not buying it. I've yet to talk to an actual judge who thinks the Eleventh Circuit got it right. If someone wants to defend what the Eleventh Circuit did here, they will actually have to discuss in detail.

I would hope that one of the law clerks who initially blew the whistle opts to appeal this matter to the full Judicial Conference. Chief Justice Roberts cannot simply turn this matter over like a couch cushion.

Update: A colleague wrote, "I just read Judge Wood's op-ed again, and I realized what it reads like: the hostage statement of someone who has been kidnapped." Yes, I agree. Also, how can Judge Wood say with certainty the subject judge was Eleanor Ross, and not even mention the reprimand was private. This situation seems like a fix.

The post What Judge Wood Did Not Say About Judge Ross's Misconduct appeared first on Reason.com.

Professor Paul Finkelman has asked me to post the following guest post, and I am more than happy to do so. Prof. Finkelman is a leading legal scholar and legal historian, and is the President William McKinley Distinguished Professor of Law and Public Policy, emeritus at Albany Law School.

For my part, I will note that I agree with most of his analysis. As a general rule, the government should not be in the business of promoting or discouraging religious observances. But the military presents a special case, because the lives of members of the armed forces (while on duty) are under government control to such an extent, that - in many situations - there is no way for them to practice their faiths unless the government facilitates it in various ways. When the government does that, it should not discriminate between adherents of different religions. What follows is written by Prof. Finkelman, and not me (Ilya Somin):

The Trump administration recently announced that it is removing about 180 religions from those recognized by the Pentagon. This is an obvious violation of the First Amendment's protection of religious liberty. In essence, the Administration has "established" 31 religions as acceptable to the U.S. government and denied religious freedom to members of many other faiths. Plausibly, the Pentagon could decide not to have military chaplains, and not to have religious symbols on military graves, and no longer provide a color guard for veterans  buried in cemeteries tied to particular faiths. It could prohibit military personnel from giving last rites to when those in the military die in combat or a military hospital. Members of the armed services would no longer have their religion on the dog tags. This would presumably not violate the First Amendment because the government would be taking a complete "hands off" policy to religion.

Such a policy  would run counter to the history of the American military starting with the Revolution. It would also undermine the morale of those who put their lives on the line for the nation. In our 250 years as a nation, we have increasingly expanded the range of religions recognized by the military. Initially, all chaplains were Protestant ministers. During the Mexican-American War President James K. Polk appointed two Catholic chaplains, reflecting the changing demographics of the nation. During the Civil War, the Lincoln administration intervened to allow rabbis to serve as chaplains. Today chaplains, whatever their background, are trained to serve members of all faiths. But, with this new rule, policies will change. Dog tags will no longer recognize the faiths of many service personnel. Chaplains may not respect the religious concerns of those who serve. Chaplains, trained to serve people of all faiths, may no longer be able to do so.

The message of the administration is that some faiths matter, and many do not. There seems to be some politics involved here. The "liberal" Unitarian/Universalist Church, which is as old as the nation itself, is no longer officially a church. Nor are churches tied to minorities, such as the Native American Church or the African Methodist Episcopal Church (AME).

This policy is in conflict with the First Amendment, because the President and Secretary of Defense have in fact "established" 31 religions as being legitimate and worthy of government support, and asserted that about 180 are not either "real" religions or worthy of support.

Ironically, the Pentagon announced this on the anniversary of the D-Day invasion in World War II, when about 2,500 American men (and another 2,000 allies from Canada, Great Britain, and other allies) died. Some of those who died were probably members of faiths that the Pentagon no longer recognizes as "real" religions.

This slap in the face to Americans of minority faiths (and their families) who have died for our country is a direct assault on the Constitution. Among those religions that have now been cancelled by the administration (making it the leader of cancel culture in America,) are some of our most venerable faiths including Congregational Churches, the United Church of Christ, Unitarian/Universalist, Disciples of Christ, Mennonite, Moravian, Dutch Reformed, Adventist churches (other than Seventh Day Adventists), African Methodist Episcopal (AME), AME-Zion, the Native American Church, traditional tribal religions, and Deists  In addition, religions practiced by many people who landed on our shores from the mid-Nineteenth to the present, such as Confucianism, Coptic, Druze, Zoroastrianism, and Santeria, which are no longer recognized as religions.

Some of the designations on the list seem utterly weird and arbitrary. The list of acceptable faiths includes many that are designated "Christian," with the name of a denomination after that term. However, the list does not designate the Church of Jesus Christ of Latter-day Saints (LDS) as Christian. That would probably come as a great surprise to the more than six-and-a-half million members of the Utah based Church. As the Church notes on its website:  "Members of The Church of Jesus Christ of Latter-day Saints unequivocally affirm themselves to be Christians."

By denying that members of the LDS Church are Christians, the administration is taking sides in a complicated theological debate between some Christian theologians and LDS theologians. This is emphatically not a debate in which the Pentagon, the President, or the federal government should take sides. This decision has also infuriated political leaders and LDS Church leaders in Utah.

However, even as it recognizes the LDS Church based in Utah, the list does not include the Reorganized Church of Jesus Christ of Latter Day Saints, which for last quarter century has called itself Community of Christ, based in Missouri. Thus, Secretary Hegseth and President Trump have not only declared that Mormons are not Christians but have also decided which is the "real" Mormon Church. This is a type of establishment determination that the First Amendment prohibits.

This new policy is being implemented while the President and his administration are gearing up to celebrate the 250th anniversary of the Declaration of Independence. The policy is a direct refutation of the American Founding and insult to the memory of many of the most important Founders of our nation. At least a dozen of the signers of the Declaration of Independence, including its most important co-authors, practiced faiths that the Secretary of Defense and the President have decided are not "real" religions, or at least religions worth of respect.

In 1776 the Continental Congress appointed a five person committee to write the Declaration of Independence. Three were members of faiths that Donald Trump and his minion, Pete Hegseth, have just cancelled. John Adams was a Unitarian and Thomas Jefferson and Benjamin Franklin were Deists. The President and his Secretary of Defense want to cancel other signers as well. Benjamin Rush was a Deist, like Franklin and Jefferson. John Bartlett, a signer from New Hampshire, is buried in a Universalist graveyard. At least seven signers were members of Congregational Churches, including such significant founders as Roger Sherman, Oliver Wolcott, and Robert Treat Paine. These denominations can still be found in the United States, but not in the new Trump/Hegseth military. Most Congregational Churches morphed into the United Church of Christ (UCC) in the late twentieth century which today has more than 4,600 churches, but the President and Secretary of Defense have also canceled that. [Secretary Hegseth does list the "Church of Christ" as an acceptable religion, but that is a different denomination from the UCC.]

After the Declaration of Independence was signed, Americans of all faiths fought for the cause. The current administration has cancelled the faith of Major General Philip Schuyler, the commanding officer of the New York militia (and the father-in-law of Alexander Hamilton), because he was Dutch Reformed. Major General Israel Putnam, a New Englander, could not have a dog tag that states his faith, because he was a Congregationalist.

Trump and Hegseth want to cancel numerous presidents because of their faith. In addition to John Adams and his son John Quincy Adams, Millard Fillmore and William Howard Taft were also Unitarians. Taft, a conservative Republican, was Secretary of War (when that was actually the real name of the department) and then President. He later served as Chief Justice of the United States. He is buried in Arlington National Cemetery. It is not clear if that could happen today since the military no longer recognizes the Unitarian faith. Nor does it recognize the Dutch Reformed faith of Presidents Martin Van Buren and Theodore Roosevelt. Col. Roosevelt is remembered for leading a regiment he organized, the Rough Riders, in the Spanish American War. Today Secretary Hegseth might let him command troops, but the Army would not recognize his faith as a "real" religion. President James A. Garfield, who was also a major general in the Civil War (and led troops at Shiloh and Chickamauga) was a member of the Disciples of Christ. Lyndon B. Johnson, who was a Commander in the Navy in World War II and a reserve officer for more than two decades after the War, was also a member of the Disciples of Christ. But you won't find a minister from that faith in today's Army, Navy, Air Force, Marines, and Coast Guard. Trump and Hegseth have cancelled it.

During World War II the Navajo Code Talkers risked their lives as Marines, providing real time intelligence of Japanese troop movements, while speaking on radios in Navajo. Many code talkers were members of the Native American Church or a traditional Navajo faith. In Europe, about 10,000 American soldiers of Japanese ancestry served the Nisei Brigade, the most decorated unit in American military history. More than 4,000 of these Japanese-American soldiers were awarded purple hearts for their combat wounds and more than 4,000 also earned a bronze star and other medals for valor, including the Congressional Medal of Honor. Some of these courageous soldiers followed the Shinto faith. At the same time, the separate unites of the Tuskegee airmen earned three Distinguished Unit Citations while individual Tuskegee airmen earned more ninety-five distinguished Flying Crosses, many purple hearts, and more than 750 other medals for their heroism. The Tuskegee fighter escorts lost, on average, about half as many bombers as other escort units. Many of these airmen were members AME and AME-Z churches. But, the faiths of the code talkers, the Nisei Brigade and the Tuskegee airmen are now verboten by orders of Trump and Hegseth.

The Hegseth/Trump announcement – on the anniversary of D-Day – loops us back to the insult to followers of religions that the United States no longer honors or recognizes. Among those landing at Normandy was 56 year old Brigadier General Theodore Roosevelt, Jr., the son of the President Teddy Roosevelt. He was the oldest soldier, and the only general, to land at Normandy on D-Day. Although suffering from arthritis and heart disease he led his troops with distinction until he died of heart failure in July. He received the Congressional Medal Honor, posthumously, for his incredible leadership at Normandy. But today, the historic religion of his family—the Dutch Reformed Church—along with the faiths of tens of thousands of other veterans, has been removed from our military.

We honor Ben Franklin, John Adams, and Thomas Jefferson, Presidents John Quincy Adams, Van Buren, Fillmore, Garfield, Teddy Roosevent, and Taft, the Navajo Code talkers, the Niese Brigade, the Tuskegee Airmen, and General Teddy Roosevelt, Jr., for their patriotism and courage. It is a sad day that the President and his Secretary of Defense dishonor their religions and their faith.

The post The Pentagon's New War - Canceling American Religion and American History appeared first on Reason.com.

Media reports indicate that Brown University Professor Gordon Wood passed away at the age of 92 yesterday, apparently killed by a passing car while walking. Wood was the greatest historian of the Founding era and the ideology of the American Revolution, author of such seminal works as The Creation of the American Republic and The Radicalism of the American Revolution, among many other important works. He had an enormous influence on generations of historians, legal scholars and many others.

In addition, his work on the universalist Enlightenment liberal political ideals of the Revolution and the Founding is a compelling antidote to both right-wing ethno-nationalists (who envision the US as a nation based on ties of race, ethnicity, and culture), and far-left claims that the Founding was primarily about promoting slavery and white supremacy.

I had a slight acquaintance with Wood, whom I met at a couple of academic conferences. I wish I had known him better. He will be greatly missed.

In Prof. Wood's honor, I repost an excerpt from one of his last public speeches, a talk he gave at the American Enterprise Institute last fall (I previously wrote about the speech and its significance here). Wood's message is vitally needed today, as much as ever:

I want to say something about the Declaration of Independence and why it is so important to us Americans.

There has been some talk recently that we are not and should not be a credo nation, that beliefs in a creed are too permissive, too weak a basis for citizenship and that we need to realize that citizens who have ancestors that go back several generations have a stronger stake in the country than more recent immigrants.

This is a position that I reject as passionately as I can. We have had these blood-and soil-efforts before, in the 1890s when we also had a crisis over immigration. Some Americans tried to claim that because they had ancestors who fought in the Revolution or who came here on the Mayflower, they were more American than the recent immigrants….

The United States is not a nation like other nations, and it never has been. There is at present no American ethnicity to back up the state called the United States, and there was no such distinctive ethnicity even in 1776 when the United States was created….

Because of extensive immigration, America already had a diverse society. In addition to seven hundred thousand people of African descent and tens of thousands of native Indians, nearly all the peoples of Western Europe were present in the country. In the census of 1790 only sixty percent of the white population of well over three million remained English in ancestry…

When Lincoln declared in 1858 "all honor to Jefferson," he paid homage to the Founder who he knew could explain why the United States was one nation, and why it should remain so. Half the American people, said Lincoln, had no direct blood connection to the revolutionaries of 1776. These German, Irish, French, and Scandinavian citizens either had come from Europe themselves or their ancestors had, and they had settled in America, "finding themselves our equals in all things." Although these immigrants may have had no actual connection in blood with the revolutionary generation that could make them feel part of the rest of the nation, they had, said Lincoln, "that old Declaration of Independence" with its expression of the moral principle of equality to draw upon. This moral principle, which was "applicable to all men and all times," made all these different peoples one with the Founders, "as though they were blood of the blood and flesh of the flesh of the men who wrote that Declaration…." This emphasis on liberty and equality, Lincoln said, shifting images, was "the electric cord. . . that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world."

In Jefferson's Declaration Lincoln found a solution to the great problem of American identity: how the great variety of individuals in America with all their diverse ethnicities, races, and religions could be brought together into a single nation. As Lincoln grasped better than anyone ever has, the Revolution and its Declaration of Independence offered us a set of beliefs that through the generations has supplied a bond that holds together the most diverse nation that history has ever known.

Since now the whole world is in the United States, nothing but the ideals coming out of the Revolution and their subsequent rich and contentious history can turn such an assortment of different individuals into the "one people" that the Declaration says we are. To be an American is not to be someone, but to believe in something. That is why we are at heart a [creedal] nation, and that is why the 250th anniversary of the Declaration next year is so important.

I extend my condolences to such of Professor Wood's family, friends, and colleagues as may read this post. His passing is a terrible loss.

The post Gordon Wood, RIP appeared first on Reason.com.

Yesterday's lead story in the NY Times is headlined:

Trump Keeps Immunity from I.R.S., a Victory in a Long-Running Feud

Subhead: "Even as they rebelled against a $1.8 billion fund for President Trump's allies, Republicans looked the other way as his administration granted him potentially lucrative tax protections."

The article notes that plans for the Trump-Blanche $1.776 billion Slush Fund were abandoned due to "Republican anger," but:

"Not so for the sweeping protections from I.R.S. audits that Mr. Blanche also ordered up for Mr. Trump and his family. On that front, Republican reaction has been much more muted, and Mr. Blanche said the audit shield would stay in place. . . .  The result is that an apparently unprecedented and enormously valuable public benefit for the president has, so far, flown under the radar in Congress and passed into Mr. Trump's hands without much protest from members of his own party."

It is indeed a shame that the Republicans have not spoken out against this part of the Trump-Blanche deal.

But we should not fall into the trap of talking as though Blanche has already conferred some kind of "immunity" – or an "audit shield" – on Trump. He has not. He's certainly been trying to do so, but because he is not authorized to do so, his attempt is of no force and effect.

Take a close look at the document that purports to give Trump and his family a shield against IRS actions.  It is dated (and was publicly posted) on May 19th – the day after the parties in Trump v IRS executed their so-called "Settlement Agreement," which contains no mention of any waiver of IRS claims, or immunity, or "audit shield," or anything remotely similar.

The May 19th document, signed by Todd Blanche, the Acting A.G., states two facts in the first paragraph: that the May 18th Settlement Agreement (1) "has created the Anti-Weaponization Fund," and (2) has "directed the Attorney General to issue an order establishing funding and any other relevant requirements for the Fund."

Both are correct; the May 18th Settlement Agreement, by its express terms, did both of those things.

Then, after declaring that capitalized terms in the May 19th order have the same meaning as in the Settlement Agreement, the entirety of the document reads as follows (I have broken up the single sentence of the waiver provision into its component parts, just for ease of comprehension; any omitted text is marked by ellipses):

The United States

RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs [i.e., President Trump, his sons, and the Trump Organization] from,

and is hereby FOREVER BARRED AND PRECLUDED from prosecuting or pursuing,

any and all claims . . . or requests for any relief . . . whether presently known or unknown, that . . . have been or could have been asserted by [the IRS] against any of the plaintiffs . . . by reason of, in connection with, or which arise out of …

any matters currently pending or that could be pending (including tax returns filed before the Effective Date) before [the I.R.S.] or other agencies or departments. [Emphases added]

Well!

Where does Todd Blanche get the authorization to grant a waiver like this?! To anyone, let alone to his boss, the President of the United States?

The May 19th document itself is strangely silent about the answer to that question – unusually so, for an AG Order. It implies – though, oddly, and rather suspiciously, it does not come out and actually say – that it represents the "order" contemplated in the May 18 Settlement Agreement.  You remember – the one that the AG is directed to issue in order to "establish funding and any other relevant requirements" of the Anti-Weaponization Fund.

Even Blanche must recognize how ridiculous that argument is.  A waiver of claims against Trump has absolutely nothing to do with establishing or funding or operating the Anti-Weaponization Fund. And besides -- isn't the Fund being abandoned?  So the May 19th document is an Order establishing a Fund that we're not establishing?  That's absurd and confusing.

So the May 19 document isn't that order.  What is it, then?

It could be part of the settlement terms, which falls within Blanche's inherent authority to conduct litigation on behalf of the United States, and to settle claims where it is in the interest of the United States to do so. The waiver, then, is part of the "settlement terms."

Blanche himself seems confused about that. He is adamant in his testimony before the House Appropriations Committee: the May 19th document is not an "Addendum" to the Settlement Agreement. "It is a separate Attorney General Order." [see the video starting at around 44:30].  But a minute or so later he describes the May 19th document this way:

"There's a settlement. Part of the Settlement includes the [May 19th ] Order. … There's a Settlement the IRS entered into with President Trump and others, his family and his companies.  As part of that Settlement, as is customary in IRS Settlements, there's a separate AG Order."

Damned if I can figure out what he is talking about.

If the May 19 waiver order is not part of the Settlement, what is it?  If he's not issuing that in order to settle Trump's claims, where does he get the power to waive, forever, claims the United States may possess?  It's like the power to issue pardons – except, of course, the Attorney General doesn't have the power to issue pardons.  He can say "The United States waives . . ."; he can even put it on DOJ stationery and post it on the DOJ website, and he can sign it as the Acting AG – none of that gives it any legal effect whatsoever unless he has been authorized to take such action on behalf of the United States. If he has not been authorized to take such action, the "order" has the same legal effect as an entry in his private diary.

And if it is part of the "Settlement"?  That deal doesn't pass the hoo-haw test. Trump gives up his time-barred claims worth $0.00, in exchange for a $1.776 billion fund under his control PLUS a waiver of all tax or other claims against him, his sons, and his companies?

My guess is that Acting AG Blanche doesn't want to have to defend that deal when he comes before the Senate. Nor does he relish the opportunity to explain to a waiting world why the very significant waiver clause was omitted from the actual Settlement Agreement signed by the parties. Had the parties - and their lawyers, including the DOJ lawyers - just forgotten about it? Slipped their collective mind?

That's laughingstock stuff.

Trump v. IRS wasn't an actual case, because an actual case requires parties who are adverse to one another. There's a docket entry somewhere labeled "Trump v. IRS," of course, but that doesn't make it a valid or viable case.  The case can't be "settled," because it never actually existed as a case. Whatever legal effect the document labeled "Settlement Agreement" may have, it doesn't "settle" any case because there was never any case to settle.

So what about this thing that Todd Blanche posted on May 19th?  What is it? and What legal effect does it have?

I don't know. It's not part of a case settlement, and if it's not part of a case settlement Blanche has no authority to issue it.  So it's nothing.  A nullity.  It's not an immunity, or a waiver of the IRS's rights, or an audit shield.  It is just a figment of Todd Blanche's imagination, and we should treat it and speak of it accordingly.

The post Stop Calling it an Immunity! There's No Immunity! appeared first on Reason.com.

Few principles in our history and traditions are as deeply rooted as the sanctity of the family. Fit parents, and not the government or anyone else, have the right and the corresponding responsibility to direct their children's upbringing and to be their children's primary source of protection and guidance.

At the same time, a parent's inability or unwillingness to satisfy basic, minimum standards of care can lead to abuse or neglect, which justifies governmental intervention to protect the children. The desired outcome of that intervention is a family's rehabilitation, the restoration of wayward parents to their proper roles, and the government's exit from the family's affairs.

In extreme cases, however, parents can forfeit their parental status altogether. When that happens, the government invokes the judicial process to pursue the termination of parental rights, after which parents and their children become strangers in the eyes of the law.

The strong presumption is that termination is not in a child's best interest, so a parental-termination order must always be a last resort and never a first impulse. Such an order risks offending the laws of nature and is impermissible under the laws of the United States and of Texas absent clear and convincing evidence both that the parent failed to discharge his obligations to his child and that the termination of parental rights is in the child's best interest. These heightened standards are required because termination affects the fundamental rights of all involved—not just of parents to their children but also of children to their parents.

This case requires us to apply these principles with respect to a married couple with three children. The government sought termination of both parents' rights to each child. A jury determined that the requisite grounds for termination had been proven as to both parents, and the trial court rendered judgment accordingly. The court of appeals affirmed. We likewise affirm as to Father, but we hold as a matter of law that the government has failed to establish that termination of Mother's rights is in the children's best interest. As to Mother, therefore, we reverse and render.

There's a lot going on in the opinion, which is nearly 10K words long, but here's a quick summary of the argument as to mother, with an interesting discussion related to divorce:

In this case, there were no allegations that Mother directly harmed any of the children or failed to care for them. Rather, the focus at trial was on Father's violence and Mother's ability or inability to protect the children from him. But when a parent's rights may be terminated based on a spouse's violence, the department should proceed with particular caution—especially when the spouse's violence is not directed at the children.

The principle from Lewelling [an earlier precedent] that a woman should not lose her child just because her husband abused her points to a grim reality—the dilemma faced by battered mothers who must choose between enduring the abuse or risk losing their children by seeking help…. [T]he record before us does indeed reveal that Mother is in this predicament primarily because of Father's actions, not because of her own faults.

True, in the early days after the removal of her children, Mother was reluctant to cooperate with the department and was defensive of Father. She believed that the department made "false accusations" and "like[d] to distort things that come out of your mouth to where it fits them." And Mother would not agree, at first, to prevent Father from contacting the children when only she was supervising.

By the time of trial, though, the situation was markedly different. Mother now understood that Father's self-harm and domestic violence posed risks to the children, as voluminous undisputed testimony, most prominently from the department's own counselors and providers, made clear. The evidence showed that she understood her obligation to ensure that the children were not subjected to danger from Father going forward, that she was committed to complying with that obligation, and that she was capable of doing so even though she obviously hoped that Father's own progress would greatly diminish the likelihood that she would need to undertake protective actions. All this evidence directly addresses the legally relevant question: not whether Mother is a victim of abuse herself, or whether Mother is unwilling to sever a relationship with her own husband despite departmental disapproval of such a choice, but whether Mother can and will protect her children, including from her husband and their father if necessary.

Moreover, to the extent that Mother did not demonstrate her willingness to prioritize her children as persuasively or as quickly as she might have, that was at least in part due to the lack of clarity in what the department intended to achieve and what it required of her. At an earlier hearing, the department's specialist unequivocally agreed that her goal was "to preserve the family unit and let the kiddos remain in the care and custody of at least one parent." The attorney ad litem had also urged the parents to "get the help that they need so that these children can return home."

And the parents participated in couples counseling aimed at reconciliation and family reunification as part of their mandatory, court-ordered services. In other words, the department was signaling to Mother that she needed to work on her relationships with her husband and her children so that they could all be reunited.

At the same time, however, the department's case against Mother was premised on her alleged unwillingness to separate from Father. For example, in its closing argument, the department condemned Mother because she "did not kick [Father] out" and because "she's still with him." And Mother's connection to Father was the lead point in the attorney ad litem's closing argument: "[Mother], she's going to choose her husband above all…. How do we know this? Well, we know this because, for one, you've seen no affirmative action from her to do anything else. They're still together." The department's brief in this Court repeatedly refers to concerns about "Mother's and Father's enmeshed relationship." Married people typically have "enmeshed" relationships, which is in fact close to the very definition of marriage and what it requires.

To be clear, and as the department acknowledged during oral argument, this Court's precedent forecloses the department from demanding that Mother (or any parent) choose between divorcing her husband or losing her children. But the department's arguments come perilously close to that line. They may well have crossed it at trial, and it appears that a major reason the court of appeals affirmed the best-interest determination as to Mother was that she had not permanently left Father and divorced him.

We reiterate that neither the department nor any court of this State may, in the name of the People of Texas and their laws, demand divorce as a precondition for maintaining parental rights. A mother unfortunate enough to have a husband from whom their children must be protected cannot invoke the marriage to exempt herself from the duty of protecting the children, of course, and that may sometimes even leave her with little option but to see her husband only when the children are not present. But the government may never condition her status as a parent on her willingness to pursue divorce.

Imposing a demand for divorce is unlawful, and imposing such an unlawful demand sub silentio is even worse than demanding it overtly. This case reflects the problem that can arise if the real goal—to separate a married couple—is communicated only indirectly, while a demand for the couple to reunite and thrive is made overtly. Generating such cognitive dissonance creates independent problems related to due process because parties cannot be expected to comply with orders that they cannot reasonably understand.

There is every indication here that Mother never understood exactly what the department wanted. The testimony of one of the parents' counselors exemplifies this point with particular clarity. The counselor testified that he firmly believed that the children would not be endangered if they were returned to Mother. When the attorney ad litem asked him whether Mother had taken any actions to show that she would choose her children over Father, the counselor responded, "She hasn't been put in that position yet to make a choice." When asked to clarify, the counselor explained,

She's trying to work it out with her husband, and then, you know, she wants to know what the CPS wants to do—that y'all make a choice and she'll choose her children….

I guess she was waiting to see what y'all wanted—do y'all want them to split up? Do you want them to stay together?

If she had a choice of either, A, getting the kids back or, B, staying with [Father] and not getting the kids back, she would leave.

So if even the counselor whom the department paid to work with Mother could not ascertain what the department's position really was, it is hardly surprising that Mother did not. Indeed, it is possible that even the department itself did not really know which of two opposing directions it expected Mother to choose….

Our judgment in Mother's favor does not mean that the department must immediately return the children to Mother and have no further contact with her or the children. The record before us does not indicate what has happened since trial. It is at least possible, for example, that Mother is currently in no position to care for the children. If restoring them to her physical custody does not pose any such risk, however, that restoration should proceed; if material risks exist, the department has the legal tools it needs to ensure the children's protection with the least amount of invasion into the family as possible.

In any event, in light of our disposition of Father's appeal, Mother will be the children's sole legal parent. That means that once the children are restored to her custody it will be up to Mother, and not Father, to determine whether and to what extent he plays a role in the children's lives. She will have the same authority as all other parents concerning interactions that her children have with others.

And she will have the same solemn responsibility as all other parents, too, so if Mother endangers the children in the future, the department may assess whether it would be appropriate to seek relief—potentially including termination—based on that future behavior. But the department must now recognize Mother as the children's parent, with all the rights and obligations that status entails….

Justice Debra Lehrmann, joined by Justices Jane Bland and Rebeca Aizpuru Huddle dissented, and would have accepted the jury's verdict as to the mother. For those who count such things, here all five male Justices who participated voted to restore the mother's parental rights, and all three female Justices voted to uphold the terminate of the mother's rights. (One of the nine Justices didn't participate in the decision.)

The post Government May Not "Demand Divorce as a Precondition for Maintaining Parental Rights" appeared first on Reason.com.

Liane, who goes by Liana Shanti, founded her company, LMN, which is used to operate online educational courses that aim to improve students' businesses, lifestyles, and overall wellness. On Plaintiffs' website, Liane markets herself as a "world renowned thought leader in quantum energy healing, spiritual psychology, nutrition, emotional transformation, and feminine wealth[.]" She has more than 35,000 social media followers and more than 100,000 customers in 90 countries….

Defamatory statements about Plaintiffs started surfacing online around April 2022 after Haley began to speak out on her own social media accounts about abuse she allegedly experienced. Plaintiffs allege that Defendants have made false and damaging factual statements about Plaintiffs, including accusations of running a cult, human trafficking, extortion, fraud, and other misconduct. The statements that Plaintiffs claim are defamatory can be organized into three categories as described below. Specific statements will be included within the Court's analysis.

There's a lot going on in the opinion, which is >15K words long. But here's one particular item that's a bit out of the ordinary for a libel case; it's about defendant Paula Haygarth's counterclaims against plaintiff, on which Haygarth sought summary judgment:

[A]n Instagram account username, @lianashanti, posted the following statements, verbatim {emphases added}:

• "MEET PAULA HAYGARTH. WE HAVEN'T FORGOTTEN ABOUT HER. SHE'S ONE OF THE LEAD PEOPLE TRACED DIRECTLY THROUGH IP ADDRESES AND KNOWN EMAILS TO REDDIT AND THE OTHER FRAUD WEBSITES IN THE 30+ PAGE INVESTIGATIVE REPORT. SHE IS A DARK REIKI PRACTITIONER WHO HAS PRACTICED EXTENSIVE BLACK WITCHCRAFT ON MALIE'S DAUGHTHER'S SHE – NOT SURPRISINGLY – HAS THE SAME ATTORNEY AS BYRON HORVATH. THEY ARE NOT FRIENDS, JUST AN UNHOLY ALLIANCE."
• "Jesus, we ask you to DELETE AND DESTROY all toxic lies from this satan servant – PAULA HAYGARTH – who is campaigning to invalidate truths of #childabuse to cover up her own misery. She is hateful and envious, and in her hatred and envy, she cannot bring herself to acknowledge the pain of all the children who have been harmed by their parents. She abandoned her own son Austin, and her guilt and shame have turned her into a soldier of satan."
• "What WE are doing – this JESUS LED community calling out THESE people … Paula Haygarth … This vile group of PEDOS[;] PEDO SUPPORTERS[;] PEDO ALIGNERS[;] VICTIM BLAMERS … Paula Haygarth."

[i.] Dark Reiki Practitioner/Witch

First, describing Paula as a dark reiki practitioner and witch is not susceptible to defamatory meaning. Like Liane, Paula is also a spiritual leader. Although Paula denies being either a "dark reiki practitioner" or practicing black witchcraft, she does not deny generally practicing reiki and—though not explicitly argued by Plaintiffs—there is context to believe Paula used to practice reiki.

Thus, Liane's characterization of Paula's reiki practice as "dark" can be interpreted as opinion, at least for purposes of the instant motion. Her rhetoric is more figurative and there is no real way to prove whether Paula's reiki practice is "dark." Similarly, Liane likens reiki to witchcraft, so accusing Paula of practicing "black witchcraft" is also an opinion. Summary judgment is DENIED on these statements.

[ii.] Manipulative and Dishonest

Second, being called "manipulative and dishonest" is an opinion statement that supposedly explains why Paula loses friends. That statement is further unable to be proven true or false because it speculates on why other unidentified people may have ended friendships with Paula. Thus, summary judgment is DENIED on this statement.

[iii.] Pedo/Pedo Supporter

Third, the statement that Paula is a pedo/pedo supporter presents a more difficult challenge. In context, the Instagram post lists a group of about 25 names, including Byron and Stefanie, who are allegedly "pedos/pedo supporters/pedo aligners/victim blamers." Paula, of course, denies being any of these. And Plaintiffs' arguments regarding these statements are a moving target. On the one hand, Plaintiffs appear to suggest that the statement is substantially true:

The subject social media post is a prayer and religiously framed condemnation of a collective "Silencing Group" describing them as "PEDOS PEDO SUPPORTERS PEDO ALIGNERS VICTIM BLAMERS" which included a convicted pedophile, Anton Hein, persons who support pedophiles .. and family members and allies like Paula Hagarth who align with the accused abusers and attack those who disclose abuse.

But in the next breath, they say that this "prayer concerning Paula Haygarth reflects negative feelings towards her but it should not be construed as a statement that Ms. Shanti believes that Paula Haygarth is a "PEDO" or "PEDO SUPPORTER."

To the extent that Plaintiffs attempt to argue that the statement is not defamatory, the Court disagrees. A reasonable person is likely to read the statement for what it is—an accusation that the people on the list are pedophiles or support pedophiles. This is not just a matter of hyperbolic rhetoric that is totally unrelated to the contextual conflict. Here, the post is literal and Plaintiffs even state that at least one person on the list is a pedophile.

On the other hand, there is at least some, albeit spare, evidence in the record that Paula may have associated herself with pedophiles through her involvement with the anonymous Liana Shanti Cult Recovery group, particularly because Plaintiffs have accused Byron of abusing his child. While associating with a pedophile wouldn't necessarily suggest support for him, because the Liana Shanti Cult Recovery group disputes the abuse accusations, participating in the group's efforts arguably means supporting alleged pedophiles within it. Thus, there is a triable issue as to whether the statement is substantially true and not defamatory. The Court therefore DENIES summary judgment on this statement.

[iv.] Abandoned Child

Next, Plaintiffs have accused Paula of abandoning her child. Plaintiffs do not contest that the statement is defamatory, which the Court considers a concession. Indeed, the Court finds that this statement is verifiable because Paula either did or did not abandon her child and such accusation would subject Paula to ridicule or scorn.

Paula unsurprisingly denies that she abandoned her son. Although the claimant bears the burden of proving falsity and thereby must show "evidence is so powerful that no reasonable jury would be free to disbelieve it," the Court is satisfied Paula has met this burden, particularly because Plaintiffs offer no evidence of its truth…. Plaintiffs do not dispute making the statement and have not even bothered to justify or explain why it was made, let alone provide facts that create a triable issue here.

Furthermore, without being able to provide facts to establish whether Paula abandoned her child is substantially true, Plaintiffs were at the very least negligent in publishing that statement. In sum, Paula has established defamation per se and Plaintiffs have not countered this with any triable facts. The Court GRANTS summary judgment in favor of [Paula] on this statement. The question of damages will be left for trial.

[v.] Satan's Soldier

Although Plaintiffs don't squarely address Defendants' argument that the comments characterizing Paula as "Satan's soldier" were made maliciously, it is not totally clear from the Counterclaim MSJ that Defendants argue the statement is verifiable. At the Hearing, counsel for Defendants contended that Satan worshippers are real, and that, as such, the statements are capable of being proved true or false. But the Court finds that the figurative and hyperbolic nature of the post negates the impression that Liane was asserting an objective fact that Paula (or the rest of Defendants) were Satan's soldiers, particularly when the Court must consider the facts in the light most favorable to the non-moving party. Summary Judgment is DENIED as to this statement….

Because, as outlined above, the Court finds that some of the statements Defendants sought summary judgment on are not susceptible to defamatory meaning as a matter of law, the Court denies Defendants' Counterclaims Motion in part. However, Plaintiffs did not move for summary judgment, so they have not met their burden to obtain summary judgment in their favor for counterclaims related to those statements. Thus, those statements for which the Court denied Defendants' Counterclaim MSJ shall still proceed to trial….

The post How Do You <i>Know</i> She Is a Witch? Or Satan's Soldier? appeared first on Reason.com.

• 5 of the cases involve wrongful death claims, as follows, Raine (age 16), Lacey (age 17), Shamblin (age 23), Enneking (age 26), Ceccanti (age 48).
• 2 of the cases involve minors, as follows, Raine (age 16) and Lacey (age 17).
• 4 of the cases involve negligence claims based on negligence per se theories.
  • All of these (Lacey, Shamblin, Enneking, and Ceccanti) allege violation of California Penal Code § 401(a) (deliberate aid and encouragement of suicide); and
  • 1 of these (Shamblin) alleges violation of California Penal Code § 192(b) (manslaughter).

The motion lays out some of the general theories, and gives more details on each of the eight cases. (Presumably the other four cases were added on separately; the motion was filed Nov. 14, 2025, and the coordination hearing was on Jan. 30, 2026.)

The post The 12 Cases Consolidated as <i>ChatGPT Product Liability Cases</i> in S.F. Superior Court appeared first on Reason.com.

On August 15, 2025, this Court entered a Temporary Injunction Order enjoining Mr. Shulgin from using, uploading, disclosing, or transferring CTC Confidential Information—defined as photographs or videos of, or other information describing, the construction or design of any of CTC's artificial-intelligence data facilities—and ordering him to submit his devices for forensic imaging….

The Court finds that CTC will suffer ongoing, irreparable harm as long as CTC Confidential Information remains publicly accessible on the internet, as such disclosure deprives CTC of a competitive advantage regarding the construction of its artificial-intelligence data facilities, for which no adequate remedy at law exists.

Based on the foregoing findings, IT IS ORDERED that any and all photographs, videos, or other CTC Confidential Information posted by or at the direction of Defendant to Google Maps, or to any other publicly accessible internet platform, shall be removed. Plaintiff CTC Property LLC is authorized to serve a certified copy of this Order on Google LLC and/or any other internet service provider or platform hosting CTC Confidential Information posted by or at the direction of Defendant, and such entities shall comply with this Order.

Google LLC, its subsidiaries and affiliates, and any other person or entity with notice of this Order who is in possession of, or has the ability to remove, the CTC Confidential Information identified herein, are directed to remove such materials upon service of this Order and identification of the specific content by Plaintiff within 72 hours of service of this Order.

The Complaint alleges that "Shulgin – with both a Russian and U.S. online presence – used his former position as a technician subcontractor to misappropriate CTC's confidential information to take photos … of the inside workings of a data center CTC is building in Memphis, Tennessee." Seems pretty clearly unconstitutional and otherwise improper as to Google, who wasn't made a party to the case (see here for more on the general legal questions raised by such orders aimed at third parties). But in any event, it struck me as worth noting.

The post Texas Court Orders Google to Remove Information Posted by User Regarding xAI-Linked Data Center appeared first on Reason.com.

The post Today in Supreme Court History: June 8, 1925 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

On June 2, the Fifth Circuit decided United States v. Squire, which posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation."  As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…."

Suspecting him of involvement in a shooting in New Orleans, police secured a warrant to search the home of Curtis Squire, where they found a handgun.  While the handgun was not found to have been used in the shooting, Squire was charged with felon-in-possession, 18 U.S.C. § 922(g)(1), based on his prior convictions of conspiracy and substantive counts of possession with the intent to distribute heroin, possession of a firearm with a controlled dangerous substance, and obstruction of justice.  In the same case, he had been convicted of a conspiracy count to possess stolen things, and in another case, burglary and unauthorized use of a motor vehicle.

Fifth Circuit precedent recognized § 922(g)(1) to be unconstitutional as applied to some felons, as "[s]imply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny."  Non-violent felonies such as marijuana possession without evidence of present intoxication were subject to as-applied challenges.  As the court wisely wrote, "If Congress could escape Bruen's reach by simply classifying a crime as a felony, we would be confined to uncritically rubber-stamping class-based determinations, subjecting disarmament laws to a form of rational-basis, government-always-wins, type of review."  Those words are worth their weight in gold.

By contrast, predicate offenses involving a dangerous or violent crime justified disarmament.  For that proposition, the court saw no need to make out an empirical case for the fact that heroin trafficking while armed is dangerous and involves violence.  Drug gangs wage war with each other and with law enforcement.  Drug traffickers use threats of violence and violence to enforce their illegal dealings as well as to protect their turf.  And heroin is a type of poison on which users often overdose and die.  One who traffics in heroin poses a physical danger to others.

Instead, the Squire court conducted the usual Bruen analysis of looking at historical analogues, having already concluded that Mr. Squire's ability to have a firearm in his home was covered by the Second Amendment's plain text.  The English Militia Act of 1662 directed the disarming of "dangerous and disaffected persons," even though, as Rahimi notes, the Glorious Revolution reduced the Crown's power to do so.  Catholics were disarmed as not having loyalty to the government.  In the American Revolution, persons refusing to swear an oath of allegiance were disarmed.

Native Americans and African Americans were also disarmed.  While use of these analogues is problematic, the court explains: "Granted, these repugnant laws classifying people as dangerous simply on the basis of their race or religion are wrong and unconstitutional under the Fourteenth Amendment…. Nevertheless, these laws give us a glimpse into how early Americans understood their right to bear arms, how the legislature could determine classes of people to be dangerous, and the scope of their disarmament."

The Supreme Court should use the opportunity in Wolford, which concerns Hawaii's "vampire rule" banning exercise of Second Amendment rights in most public places, to disown the use of racist historical analogues.  My amicus brief in Wolford on behalf of the African American Gun Association makes that point in detail about an 1865 Louisiana black code provision.  And as Justice Kavanaugh wrote in his Rahimi concurrence: "Ratified in 1868, [the Equal Protection] Clause sought to reject the Nation's history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution."

Squire sought to distinguish his situation by the fact that he possessed the handgun at home, but the court found that argument to be "mugged by the reality that our historical laws support his disarmament, even in the special confines of his home."  (I guess "mugged" is a term Squire would readily understand.)  As the court concluded, "§ 922(g)(1) as applied to drug traffickers permits arms dispossession based on dangerousness, not location."  That is a narrow holding, as "We do not decide whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order."

The panel distinguished other courts that have refused to recognize any as-applied challenge to the felon-in-possession ban by postulating the basic difference between dangerous and violent crimes from mala prohibita, victimless crimes such as mere possession of marijuana.  We'll see what the Supreme Court says about that when it decides Hemani, which presents the question, "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent."  See my post here.

* * *

In footnote 1 of Squire, Judge Clement rejected the argument that the ban exceeds Congress's power under the Commerce Clause as foreclosed by circuit precedent.  Unsuccessful attempts to rein in Congress on the issue included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus.  Based on the Supreme Court's decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent.  Query whether the Supreme Court will ever return to the premise that local crime is not interstate commerce.

The post Second Amendment Roundup: No Protection for Heroin Trafficker appeared first on Reason.com.

I am happy to pass along this post from Professor Arthur Hellman, concerning Judge Ryan Nelson's parking lot altercation, which I wrote about here:

Over the weekend, Bloomberg Law reported that Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals has been charged with misdemeanor battery for his actions in an April 2 altercation with a man in a parking lot in Idaho Falls, Idaho. Judge Nelson has also been charged with malicious injury to property – the "property" being the glasses of the other man, which Judge Nelson allegedly knocked off and stomped on. The altercation apparently began when the other man said (twice) to Judge Nelson: "Learn how to park."

The Idaho State Journal published video of the incident and also a more detailed account of the episode. A pretrial conference is scheduled for June 18.

In the Judicial Conduct and Disability Act of 1980 (JCDA), Congress established a process for dealing with complaints that a federal judge "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability." Judge Nelson's alleged conduct would arguably support a finding of misconduct under the JCDA; it may also implicate the provision dealing with disability. How should the judiciary respond to this report?

Under the Act, complaints against judges may be filed by "any person" and thereafter reviewed by the Chief Judge of the Circuit. But the Chief Judge need not wait for the filing of a complaint before initiating the process. She may "identify" a complaint with the same effect. I have argued that "when reports of possible misconduct have become public, the chief judge should be required to identify a complaint." This will reassure the public that the judiciary is truly committed to policing misconduct within its ranks. And if the judge is exonerated, the process will help to remove the cloud that would otherwise hang over the judge's reputation.

So the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint. What next? The law allows Judge Murguia to conduct a "limited inquiry," but not to "make findings of fact about any matter that is reasonably in dispute." If there are disputed facts relevant to the complaint, she must appoint a Special Committee similar to the one that recently investigated the allegations against Judge Eleanor Ross of Atlanta.

I'll skip now to the question: does Judge Nelson's conduct fall within the statutory definition of misconduct quoted above? After all, in contrast to Judge Ross, all of Judge Nelson's conduct took place outside the court and was unrelated to his judicial role.

The most extensive discussion of that question in the decisions under the Act is found in a misconduct order issued by Chief Judge Dennis Jacobs of the Second Circuit almost 20 years ago. The proceeding involved an altercation at a campfire on a beach. The principal allegation of the complaint was that the subject judge engaged in misconduct by intentionally striking the complainant without justification and, as a result, was charged with a criminal offense. The similarity to the allegations against Judge Nelson is striking.

Chief Judge Jacobs assumed that extrajudicial conduct could fall within the Act, but after careful analysis (which should be read in full), he concluded that the alleged assault at the beach did not. He summed up by saying that "this was a one-time private dispute between private citizens, one of whom happens to be a judge. At worst, the Judge used physical force to terminate a private confrontation in which the Complainant was using obscenities in the presence of the Judge's small children."

As the second quoted sentence indicates, there were mitigating circumstances in the case before Judge Jacobs that appear to have no close counterpart in the episode involving Judge Nelson. But there may be other mitigating circumstances here. Josh Blackman has ascertained that the parking lot adjoins a hospice center; it is possible that something was going on in Judge Nelson's life that caused him to "snap."

If this was an isolated episode related to a serious medical concern, that might be reason to conclude that the conduct was not misconduct under the Act. Indeed, if Judge Nelson apologizes to the individual involved (which I hope he will do in any event), the Chief Judge or the Judicial Council might "conclude the proceeding" (as the Act authorizes) upon finding that "appropriate corrective action has been taken." That would avoid the need to determine whether Judge Nelson's actions constituted misconduct.

The hospice center setting also raises the possibility that Judge Nelson's conduct reflects a disability or the effect of medications. That too is something that the Chief Judge and the Judicial Council should investigate and take into account.

On the other side of the ledger, shortly after Judge Nelson's confirmation in 2018, the Wall Street Journal reported that in the two decades before his appointment, he had compiled an extensive record of traffic citations. "He's gotten tickets for speeding, disobeying traffic lights and signs, illegal turns, seat-belt violations, not carrying proof of insurance, skipping an auto inspection and not registering his vehicle. He's been cited on his boat as well."

If that behavior stopped after his appointment as a judge, it should not preclude a finding that the parking lot altercation was an isolated event in his life. But if it has continued, that would raise questions about whether the altercation reflects a temperament inconsistent with the judicial temperament. And that might even raise questions about his fitness for judicial office, parallel to those that have been raised with respect to Judge Ross. (My own view is that the most serious finding of misconduct by Judge Ross is the one that involves false statements to the judges who were investigating her misconduct. That finding corresponds closely to conduct that was one basis for impeaching District Judge Samuel B. Kent in 2009. No such conduct has been alleged here.)

But it is far too early to condemn Judge Nelson. The criminal proceeding should take its course; so should the processes under the Judicial Conduct and Disability Act and the rules that the judiciary has promulgated to implement it. When all of those investigations have concluded, there will be time enough to make judgments about Judge Nelson's future as a federal judge.

The post The Criminal Charges Against Judge Ryan Nelson: How Should the Judiciary Respond? appeared first on Reason.com.

Eugene blogged about the incident last night. Bloomberg Law had additional coverage. (As an aside, Bloomberg Law has some of the most thorough coverage of the lower courts today; they consistently outperform other outlets.)

Here, I'll offer a few preliminary thoughts.

First, while I have never met Judge Ross, I do know Judge Nelson. All of my interactions with him over the years have been very cordial. The person I saw in that video was not the person I have come to know and like. As a general rule, we should not be judged at our worst moment, though in life and law, sometimes we are.

Second, I was able to figure out where the incident happened. The surveillance footage was labeled "Front Parking F Street." And the State Journal article referenced the location was on Memorial Drive. Google Maps quickly allowed me to find the intersection in Idaho Falls, Idaho. That parking lot belongs to a Home & Hospice Center. You can see the same blue column that appears in the video.

Third, this location may be relevant. One can imagine that attending to a loved one in hospice may be an emotional experience that could have put Judge Nelson, and the other person, in difficult emotional stages. Also, rushing to a hospice center may explain the judge's failure to pull into a single spot, though the lot was wide open.

Fourth, both Judge Nelson and the other person behaved poorly. Again, the lot had many empty spots. Why did the guy in the white truck pull up right next to Judge Nelson's car? And it wasn't necessary to say anything about the parking job. But then Judge Nelson lost his temper and behaved in an awful fashion. The situation escalated so quickly, it might seem there was history between these two men.

Fifth, Judge Nelson, like all criminal defendants, is entitled to the presumption of innocence. Yet, his attorney does not seem to dispute the underlying conduct--how could he, it is on camera. Here, unlike Judge Ross, Judge Nelson seems to have been truthful during the investigation.

The ethical issues here are complex. I have asked Professor Arthur Hellman to share a guest post on this matter, which I will post after mine.

This video just seems relevant.

Update: David Lat offers this update at Original Jurisdiction:

On the subject of a bad day, the first clerk shared with me that Judge Nelson has been going through a difficult time personally right now: "His father recently had a heart attack (which he thankfully survived), and other family members have been dealing with cancer. I haven't spoken to him about the incident, so I don't know if any of this played into it, but I can certainly imagine it."

Josh Blackman did some sleuthing, and based on the surveillance footage and Google Maps, he concluded that the parking lot where the incident transpired belongs to a Home and Hospice Center. So it certainly seems at least possible that Judge Nelson wasn't in a good state of mind when he had the parking argument.

The post A Few Preliminary Thoughts About Judge Ryan Nelson's Parking Lot Incident appeared first on Reason.com.

But some of the time we do need students to help with cite-checking. We've been fortunate to have such people helping us over the years, but we'd like to add a couple more as well.

I realize that this is not like a normal law review: It will likely involve both less work and less responsibility. On the other hand, you'll get to read what we hope will be very interesting scholarship, participate in the process of publishing it (plus see your name in print on the masthead; the title is "Production Editor"), and further practice your cite-checking skills.

If you're interested, please e-mail me at volokh@stanford.edu. Just to be clear, as with other law reviews, we're looking for volunteers, though we hope that the students who participate will find this professionally valuable.

By the way, if some of you have already done this in past years, but would like to continue even while you're practicing lawyers, we'd of course be happy to have you back. I'm reluctant, though, to impose on people who have graduated and have paying jobs that take up their time unless they've affirmatively made clear that they'd enjoy doing this sort of task as well.

The post Law Students: Interested in Helping With Cite-Checking on the <i>Journal of Free Speech Law</i>? appeared first on Reason.com.

New Iranian attacks in the Persian Gulf are being easily and successfully countered by U.S. Armed Forces. Those attacks should not obscure the fact that President Trump is pursuing a brilliant foreign policy with respect to Iran that he should absolutely stick to.

President Trump is succeeding where Presidents George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Joe Biden all failed. The blockade of Iran will likely produce real regime change if it is left in place for another six to eight weeks, and the new Government of Iran will surrender its nuclear stockpile and will reopen the Strait of Hormuz unconditionally.

Iran is losing $500 million a day and 90% of its trade passing through the Strait of Hormuz as a result of the blockade. No government can continue to govern and escape a revolution on the streets in this situation. Tellingly, no U.S. soldiers are dying, and President Trump is on track to win the United States' biggest foreign policy victory since the peaceful collapse of the Warsaw Pact and of the Soviet Union because of the policies of President Ronald Reagan.

President Trump has very wisely let two conditions shape his negotiations with Iran over the last two months. First, he has insisted that Iran surrender its stockpile of 60% enriched uranium and end its efforts to develop a nuclear bomb. Second, he has rebuffed Iranian demands that Iran be allowed to charge a toll on any ship passing through the Strait of Hormuz. Both demands are eminently reasonable. Yet the Iranian Revolutionary Guard Corps (IRGC), which is now the effective de facto government of Iran, is flatly rejecting both demands.

The IRGC is in a position of extreme weakness right now. It has been unable to pay its soldiers for weeks, and they are defecting in droves. The IRGC has filled all the storage tanks with oil, which it can store, and Iran may soon have to permanently shut down some oil wells, which will permanently damage them. Inflation is at record highs, especially for food; the currency has plunged to the point of being worthless; and even before the war, a super-majority of the Iranian public was furious with the regime. In six to eight weeks, the Iranian people will likely revolt in the streets, and the IRGC will have no troops to put down the popular uprising.

The result will be real regime change in Iran, one of the United States' most dangerous enemies, with an end to the IRGC's existence and to its funding of Hezbollah in Lebanon, of Hamas in the Gaza strip, and of the Houthis in Yemen. If we win the peace in Iran, the way President Truman won the peace after the end of World War II in Germany, Japan, and Italy, Iran will emerge as a potential U.S. ally, or at least as a likely peaceful regional partner.

This means that we will be able to end sanctions in Iran and help restore its full oil and gas production. That production, plus the resumption of oil and gas production in Venezuela, thanks again to President Trump, seems likely to cause oil prices to drop to about $40 a barrel, which will in turn likely bankrupt Vladimir Putin and end the Ukraine War on terms favorable to Ukraine. President Putin may even be overthrown as a result, eliminating another longtime U.S. enemy. The message sent to China not to invade Taiwan will be clear and unmistakable.

President Trump has the chance if he keeps the Iran blockade in place to emerge as the United States greatest foreign policy president since Ronald Reagan, Franklin D. Roosevelt, and Harry S. Truman. All that is required for this to happen is for him to have the patience to leave the U.S. blockade on Iran in place for another 6 to 8 weeks.

The post Keep the Blockade of Iran in Place appeared first on Reason.com.

California is notoriously slow at counting its ballots. In 2024, it took California until November 8 (three days after Election Day) to get just 70 percent of its ballots counted. Across all 50 states, the average share of the vote counted by that date was more than 95 percent, putting California squarely in last place. Rest assured, The Golden State did eventually hit that 95 percent mark … a full 10 days later….

Florida now manages to count 99 percent of its ballots within a few hours of polls closing, in part because election officials can process ballots before the polls close. And they are able to accomplish this feat of incredible speed with a sizable proportion of mail votes — about 27 percent in 2024…. Colombia held a presidential election on Sunday, and 99.98 percent of the result was in on Monday morning. Japan also counts most of its votes overnight. And in the UK (not exactly a poster child for state capacity), you can generally expect to have calls for all 650 parliamentary seats the morning after the election….

Nor is the problem inherent in California's choice to promote mail voting:

Mail-voting states such as Oregon, Washington, and Colorado count slowly relative to the US average, but they're all faster than California…. [And y]ou can make voting accessible without bending over backward to accommodate the tiny share of people affected by extending the mail ballot receipt deadline [to one week after the election, as California has]….

And slowness doesn't seem to be the price one needs to pay for accuracy:

There's no evidence that voter fraud or other election administration issues are any less prevalent in California than in faster counting states. Based on the Elections Performance Index — a project that compares election administration quality across states — California ranked 41st in 2024. So the state isn't slower and better: it's slower and (often) worse….

If you want people to be confident in your electoral system, a good first step is to build one that works properly instead of adding yet another example to the "California is a failed state" pile.

The post "Why Can't California Count?" appeared first on Reason.com.

I asked Claude, "Under the federal law clerk hiring plan, when can a recommender e-mail or call a judge to recommend a student?" Claude responded, in part,

Judges will not accept applications or recommendations before 12:00 pm EDT on Monday, June 8, 2026. (That's today — recommendations became permissible at noon Eastern today.) uscourts

For those reading this post later, note that I wrote this and asked Claude this on Sunday, June 7, 2026 (shortly after 12 noon Eastern). AI is indeed the future.

The post AI Remember Doing the Time Warp appeared first on Reason.com.

The post Today in Supreme Court History: June 7, 1965 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

Idaho State Journal (Jimmy Hancock) reports (including video):

U.S. 9th Circuit Court of Appeals Judge Ryan Douglas Nelson faces two criminal charges [for] {misdemeanor battery and malicious injury to property} after police say he battered a man by swiping the glasses from his face, tossing them across an asphalt lot and stomping on them during an April confrontation over a parking space in Idaho Falls….

The alleged victim says Nelson's truck was angled into a parking space — the bulk of his truck in one spot with the right front tire and bumper hanging over the right line and into the spot to the right and the left rear part of the truck hanging over the left line and into the parking space to the left, effectively blocking three parking spots in the lot directly in front of the nearby businesses.

As the alleged victim was exiting his white pickup truck, Nelson started his truck to leave the parking space. That's when the alleged victim spoke.

"I say 'learn how to park,'" the alleged victim said. "I said it twice. That's when he went crazy." …

"When I spoke with Nelson he admitted to knocking his glasses from (the alleged victim's) head but stated he did not touch him. He also admitted to stomping on his glasses," [a police officer's] affidavit states.

The post Judge Ryan Nelson (9th Cir.) Charged with Battery for Allegedly Knocking off Man's Glasses in Parking Space Dispute appeared first on Reason.com.

Gordon-Darby Holdings had a lucrative contract running New Hampshire's vehicle emissions testing program. Understandably, Gordon-Darby was disappointed when the New Hampshire state legislature repealed the program and canceled the contract. So Gordon-Darby did what many companies would do: It filed suit seeking a court order requiring New Hampshire to maintain the testing program.

Lacking any contractual basis for its suit, Gordon-Darby claimed that New Hampshire was required to maintain its vehicle emission testing program under the federal Clean Air Act. The problem for Gordon-Darby is that the Clean Air Act does not actually require states to do anything, in that states are not forced to adopt or enforce any pollution control measures. Rather, the Act seeks to induce state cooperation by threatening various sanctions if states do not comply, such as a loss of federal funding and the imposition of federal regulations. The Act is structured this way because a direct imposition on the state would be unconstitutional, as the federal government conceded to the Supreme Court when these issues were litigated in the 1970s. Since then, the Supreme Court has made explicit that federal law cannot force states to adopt, implement, or enforce a federally desired regulatory program, as any such requirement would be unconstitutional commandeering.

Gordon-Darby first suit foundered when the U.S. Court of Appeals for the First Circuit concluded the litigation was premature. As the district court had looked more favorably on the claims, Gordon-Darby announced its plans to try again. Accordingly, it filed a new notice of intent to sue, raising the same claims.

In the first litigation, the state largely defended on narrow technical grounds, and largely failed to raise the commandeering defense. In my view, this was a mistake, as the anti-commandeering doctrine is quite clear and, in some respects, has its roots in a nearly identical conflict, when the EPA sought to force states to adopt vehicle emission inspection programs in the 1970s. Thus even if Gordon-Darby overcomes the various technical hurdles to filing suit, it has no claim, as it is asking for relief that federal courts cannot lawfully provide.

As Gordon-Darby filed its new notice of intent to sue on May 8, I suspect this means we will see a suit filed in early July. Stay tuned.

The post Gordon-Darby Prepares to Renew Effort to Commandeer New Hampshire in Order to Maintain Emissions Testing Contract appeared first on Reason.com.

Environmental organizations have filed citizen suits against state and local governments alleging that their failure to regulate more stringently, or their issuance of permits to particular activities, violate the Endangered Species Act (ESA). In effect, these suits seek to hold state and local governments vicariously liable for harms to listed species.

There are questions about whether the ESA should be interpreted or applied in this fashion. There are also questions about whether the imposition of vicarious liability on state and local governments violates the anti-commandeering principle under New York v. United States, Printz v. United States, and NCAA v. Murphy.

Last week I hosted a Federalist Society forum, "Commandeering for Conservation?" in which Jonathan Wood of PERC and William Snape of American University's Washington College of Law discussed and debated this question.

For what it is worth, I am with Jonathan Wood on this question, for reasons I explained in this post (and will elaborate on in a forthcoming paper).

The post Is the Endangered Species Act Being Used to Commandeer State Governments? appeared first on Reason.com.

The post Today in Supreme Court History: June 6, 2005 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

In a recent New York Times article, socialist Sen. Bernie Sanders presented a proposal to have the federal government expropriate 50% of the stock of major AI producers. If enacted by Congress, the plan would violate the Takings Clause of the Fifth Amendment.

Sanders justifies this expropriation by claiming that AI was produced through the "collective knowledge of humanity":

Artificial intelligence was not created out of thin air. The data and language used by generative A.I. tools didn't just pop into Sam Altman's head or Elon Musk's imagination. A.I. is built on our collective intelligence: our books, songs, artwork, journalism, computer code, scientific research, videos, conversations, images and ideas spanning generations. That is not just the opinion of Bernie Sanders.

For the most part, tech oligarchs have fed this knowledge into their A.I. models without permission, without acknowledgment, without compensation. In other words, the creative work of millions of people — writers, artists, musicians, journalists, teachers, scientists and ordinary citizens — has essentially been stolen by some of the wealthiest people in the world. It's time for us to reclaim it.

Since A.I. is built on the collective knowledge of humanity, the wealth it generates must benefit humanity.

The Takings Clause of the Fifth Amendment states that the government may not take "private property" without paying "just compensation."As Richard Epstein and Eduardo Penalver – leading takings scholars with widely divergent views on most political and legal issues – explain in a joint essay on the Takings Clause for the National Constitution Center, "the guarantee of just compensation must apply at the very least to cases in which the government engages in the outright confiscation of property." Stock is private property, and seizing 50% of the stock value of major firms is a pretty obvious case of confiscation.

And it does not matter that Sanders proposes to take "only" 50% of the stock, rather than 100%. If the government seizes half your house or half of your business, that's still a taking. Indeed, the Supreme Court has held that seizing a much smaller proportion of a property is a taking, as in the famous case of Loretto v. Teleprompter, where New York City required the owner of a building to give up a small portion of the roof to put a cable box there. The same principle applies here.

Sanders refers to the seizure as a "one-time 50 percent tax." But that labeling doesn't matter. It's still obviously an expropriation of property, and not simply a tax on the income it generates or even a property tax. One of the key elements of property rights is control over its use. Sanders makes clear that seizing control for the government is a major objective of the proposal. There can be situations where the boundary between a tax and a taking is fuzzy. But this proposal is very obviously on the taking side of the line.

If merely labeling an expropriation like this a tax could immunize the government from takings liability, they could use the same trick to expropriate virtually any property without compensation. Thus, they could take over your house by claiming that it's merely an in-kind tax payable in the form of land-use rights. They could take over any business or charitable organization by claiming that it's a one-time tax payable by turning over the right to control all the organization's activities. And so on.

Sanders could potentially get around Takings Clause constraints by abandoning outright confiscation, and instead having the government pressure firms into giving up control by using regulatory pressure, offering subsidies, or imposing unconstitutional export taxes on those that refuse to comply. Donald Trump has actually used tools like these to acquire stakes in various firms, such as Intel. The Trump administration has recently been considering using such shenanigans to acquire stakes in major AI firms.

The Trump-like approach is, I believe, also subject to a variety of legal objections. But it's less obviously unconstitutional than Sanders' plan for outright confiscation.

In addition to being unconstitutional, the Sanders plan - like Trump's similar policies (which I have  forcefully criticized) - is awful on moral and policy grounds. Sanders justifies it on the basis that AI has been "built on the collective knowledge of humanity." That "reasoning" could justify confiscating virtually any property. Pretty much every productive activity relies, in part, on knowledge accumulated by other people previously. Your house, your cellphone, your car, and your refrigerator, are all based on previously developed scientific and other knowledge. Anyone who writes a book or an article is likely building accumulated knowledge, some of it accumulated over many centuries. My writings on democratic theory rely, in part on, ideas that go all the way to the origins of democracy in ancient Greece.

AI producers, like almost everyone else, are building on accumulated knowledge. But they nonetheless make important new contributions, and the government has no right to expropriate them. Consumer choice and competition, not the government, should determine how much value to assign to the AI producers' products, not the state.

To the extent that AI producers may have illegally used others' intellectual property (by using "stolen" creative work, as Sanders puts it), the proper solution is not confiscation by the government, but lawsuits seeking damages. There are, in fact, a number of such cases currently ongoing. Expropriation of AI firms by the federal government would do nothing to compensate people whose intellectual property may have been used without proper authorization. It would just transfer the illegal profit from AI firms to the feds.

Sanders also argues that AI should be under the control of the government because it's an important technology that should not be left to the control of a few billionaires. But a century of experience with socialism shows that government control of major industries leads to horrific results: poverty, oppression, and even mass murder. And for reasons I outlined in detail in this piece, Sanders' brand of "democratic socialism" is unlikely to be much better than the authoritarian kind - nor is it likely to remain democratic for long.

Similar problems arise when right-wing nationalists like Trump seek to impose government control over major industries. On that point, see my 2024 article "The Case Against Nationalism," coauthored with my Cato Institute colleague Alex Nowrasteh. Indeed, the similarity between Trump's policies and Sanders' ideas is an example of how socialists and nationalists advocate similarly awful ideas. It's "Horseshoe theory" at work!

Sanders' progressive supporters would do well to consider whether they want the AI industry - or any major industry - to be controlled by the likes of Trump. Trump isn't the first right-wing demagogue to win an election, and he's unlikely to be the last. Don't give government powers that you are unwilling to have wielded by your political opponents.

It is not true that the only alternative is a few billionaires dominating everything. The AI market is in fact very competitive. Claude, ChatGPT, Grok, Perplexity, and others are rival products competing in this space, produced by different firms. New firms enter the market on a regular basis. And the firms' owners - including billionaires - know they can only make money by meeting consumer demand better than their rivals or at lower cost. That is, so long as they cannot instead rely on government handouts and cronyism of the kind likely to proliferate with greater state control.

AI does pose some risks, and there are legitimate arguments for constraining some types of uses, particularly when it comes to warfare and government surveillance. But the right approach there is restricting dangerous uses, not wholesale expropriation by the government. To the extent that AI is potentially dangerous, government monopoly control over that industry actually exacerbates that danger, by concentrating power in the hands of politicians and their cronies and henchmen.

In sum, Sanders' plan to expropriate a large part of the AI industry is unconstitutional. And it's terrible policy, to boot. On that score, it has much in common with Trump's economic policy agenda.

The post Bernie Sanders' Dangerous and Unconstitutional Plan to Expropriate AI Firms appeared first on Reason.com.

An excerpt from the long (and, I think, basically correct) opinion in Hoffman v. N.Y. Times Co., decided yesterday by Judge Evelyn Padin (D.N.J.):

Pro se Plaintiff Harold Hoffman brings this action against Defendant the New York Times Company …. Plaintiff's suit stems from an article published by the New York Times on July 25, 2025, titled "Young, Old, and Sick Starve to Death in Gaza: 'There Is Nothing'" along with the article's accompanying photo:

According to Plaintiff, the New York Times deliberately and misleadingly omitted the fact that the infant in the photo—an 18-month-old baby named Mohammed Zakaria al-Mutawaq (pictured with his mother, Hedaya al-Mutawaq)—was born with cerebral palsy, hypoxemia, and serious genetic disorders in order to advance an untrue narrative about the impact of the war between Hamas and Israel on those living in Gaza. Plaintiff also claims that the New York Times's publication of the Article runs in contravention of its motto "All the News That's Fit to Print." …

Plaintiff brings five claims under the NJCFA [N.J. Consumer Fraud Act] as well as one claim for common law fraud. The NJCFA prohibits:

The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice….

Here, Plaintiff appears to bring claims based on two affirmative misrepresentations—(1) publishing the Article and Photo knowing they were false/misleading and (2) the New York Times's Motto—as well as two knowing omissions related to the Article—(1) failing to include Mohammad's full health history in the Article and (2) removing his allegedly healthier older brother from the Photo….

[1.] Plaintiff's NJCFA claims based on the Article and Photo

At the outset, the Court notes that "to state a claim within the scope of the [NJCFA], a plaintiff must allege facts that establish that the alleged fraudulent conduct induced or lured the plaintiff into purchasing merchandise or real estate." …

[T]he Article and the Photo … were published long after Plaintiff subscribed to the New York Times. Indeed, Plaintiff concedes that the Article and Photo are not what induced him to purchase a subscription to the New York Times. As such, Plaintiff cannot show that the Article or Photo were made in connection with the sale or advertisement of merchandise or that any omission from either is what caused his loss. It necessarily follows that Plaintiff cannot state a NJCFA claim for any conduct arising from the publication of the Article or Photo.

[2.] Plaintiff's NJCFA claim based on the New York Times's Motto

While the New York Times makes several arguments why Plaintiff cannot state a claim under the NJCFA based on its Motto, the Court need only address one: the Motto is not an affirmative misrepresentation actionable under the NJCFA…. The NJCFA … "distinguishes between actionable misrepresentations of fact and 'puffery.'" "Advertising that amounts to 'mere' puffery is not actionable because no reasonable consumer relies on puffery. The distinguishing characteristics of puffery are vague, highly subjective claims as opposed to specific, detailed factual assertions." In Rodio, for instance, the New Jersey Supreme Court held that Allstate's slogan, "You're in good hands with Allstate," was "nothing more than puffery" and was therefore not "a deception, false promise, misrepresentation, or any other unlawful practice within the ambit of the [NJCFA]."

The Court agrees with the New York Times that its Motto is not a false statement of fact. For one, the Court finds that the Motto is a highly vague and subjective statement that assures consumers nothing in particular. As the New York Times persuasively argues, "[w]hat is 'fit' and what is not 'fit' is by its very nature not a fact, but a subjective determination made by editors," and Plaintiff himself recognizes the New York Times "is entitled to editorial freedom to choose what news to emphasize." As such, the New York Times has the discretion to choose what news is fit to print. That Plaintiff does not like that news—or believes that the New York Times's reporting is not news but politically motivated lies—does not change the fact that the New York Times's Motto is a highly subjective statement that affords it significant discretion choose what it deems fit to print.

In addition, it is hard to even consider the Motto as reaching any level of puffery. It makes no specific claim of superiority (either a general claim of superiority or a claim of superiority by reference to any metric), nor does it assure consumers anything "specific and measurable." … See, e.g., In re Toshiba Am. (D.N.J. 2009) (holding that a statement that a product was for "Today, Tomorrow and Beyond" to be non-actionable puffery); Argabright v. Rheem Mfg. Co. (D.N.J. 2016) (finding that a manufacturer's statements claiming its products were "top-quality" and "dependable" could not support a misrepresentation claim); Peruto v. TimberTech Ltd. (D.N.J. 2015) (finding statements that a decking product was "designed to provide years of low-maintenance use and enjoyment," "dependable and attractive for years," and "[provided] years of outdoor living pleasure" constituted non-actionable puffery). The New York Times's Motto is even more vague than these statements, and in the Court's view, is one that no reasonable person would attach importance to when considering whether to purchase a New York Times subscription….

[3.] Plaintiff's NJCFA claim based on the New York Times's Handbook of Practices for Ethical Journalism (the "Handbook")

In his Opposition, Plaintiff changes course and asserts for the first time that what induced him to purchase a New York Times subscription was neither the Article, the Photo, nor the Motto, but rather, the New York Times's "written promise to deliver accurate news coverage in exchange for his subscription funds." The written promise Plaintiff is referring to is a statement within Chapter Two of the Handbook: "accuracy is the foundation of our credibility." "In reliance on this promise of accurate news reporting," which Plaintiff notes "is viewable on-line for all subscribers to see and to rely upon," Plaintiff "purchased and maintained the subscription." …

As noted above, to be actionable under the NJCFA, an affirmative misrepresentation must be made "in connection with the sale or advertisement of any merchandise or real estate." … [P]utting aside that Plaintiff does not plead with particularity when he first saw the Handbook or when he first subscribed to the New York Times, Plaintiff fails to show that this statement within the Handbook was made in connection with the sale or advertisement of merchandise. All Plaintiff offers is that the statement "is viewable on-line for all subscribers to see and to rely upon," which is meaningfully different from showing that the statement was made in connection with the sale or advertisement of merchandise….

[T]he same deficiencies that doom Plaintiff's NJCFA claims also doom his common law fraud claims….

David L. Cook (Sills Cummis & Gross) represents the Times.

The post Court Dismisses Fraud Claim Against <i>N.Y. Times</i> Over "Young, Old, and Sick Starve to Death in Gaza" Photo appeared first on Reason.com.

J. Whitfield Larrabee …. alleges that since taking office, President Donald J. Trump … has engaged in a course of unconstitutional conduct (collectively, "the Policy") by issuing executive orders that punish and threaten to punish lawyers and law firms that he dislikes. Larrabee asks the Court to declare the Policy unconstitutional and to enjoin President Trump and other named defendants … from taking any such action against him….

In March, 2025, President Trump issued a memorandum to the Attorney General and the Secretary of Homeland Security titled "Preventing Abuses of the Legal System and Federal Court." That Memo directed the Attorney General to seek sanctions against attorneys and law firms who engage in "frivolous, unreasonable, and vexatious litigation against the United States." It also directed the Attorney General to review conduct of attorneys and their law firms in litigation against the Federal Government over the past eight years and, if any misconduct were to be identified, to recommend additional steps to be taken, including reassessment of security clearances and federal contracts.

Contemporaneously, President Trump began to issue Executive Orders ("EOs") that purported to address the conduct of and risks posed by specific law firms. Plaintiff alleges that such EOs targeted law firms based on their past representation of clients and causes disfavored by President Trump. The EOs restricted the access of those law firms to federal buildings and limited official interactions between federal government personnel and their attorneys. Several law firms agreed to provide substantial pro bono work favored by President Trump in order to avoid being subject to similar EOs….

Plaintiff, an attorney and self-described adversary of President Trump, alleges that he has a history of engaging in litigation against President Trump and has represented causes disfavored by him. He says:

[s]o long as Trump is President, [he] intend[s] to make additional legal complaints against Trump's businesses, family members and associates where there are good grounds to do so.

He contends that he faces "a credible threat that the policy will be enforced against [him]" if he follows his intended course of conduct. He further claims that he has been deterred from representing particular clients and has been "engaged in self-censorship" out of fear of such enforcement….

The government contends that plaintiff has not alleged actual or imminent injury traceable to the Policy [which is a requirement for having standing to sue -EV]. The Court agrees.

[A.] Actual Injury

Defendant submits that he is currently suffering actual and ongoing injuries resulting from the Policy. Specifically, he alleges that he has refrained from representing particular clients and causes that are adverse to or disfavored by President Trump. Such allegations are insufficient where plaintiff has failed to establish that any future harm is certainly impending. As discussed below, plaintiff has made no such showing and thus his attempt to establish standing is unavailing.

[B.] Imminent Injury

Plaintiff contends that he faces a credible threat of enforcement sufficient to confer standing because the Policy has been recently enforced against others and the government has not disclaimed enforcement against him…. [P]laintiff must show that the enforcement is certainly impending or that there is a substantial risk that harm will occur. He has not met that burden here. First, the Court must give weight to the fact that there is no history of enforcement of the Policy with respect to like facts. The Policy has thus far been enforced against large, international law firms associated with attorneys who led investigations into President Trump or previously represented his political opponents. Plaintiff is not similarly situated to those individuals and provides no indication that the Policy has been applied to similar facts.

Larrabee's reliance on Susan B. Anthony List v. Driehaus (2014) is unavailing. The three factors supporting imminent enforcement in that case are inapplicable here. See Driehaus (noting that the challenged policy had previously been enforced against plaintiff, conferred broad authority on private citizens to instigate enforcement proceedings and its enforcement was "not a rare occurrence").

Here, the Policy can only be enforced by President Trump and a select few members of his Cabinet and it has not previously been enforced against Larrabee or similarly situated individuals. Indeed, enforcement of the Policy has been a rare, headline-making occurrence, and more than one year has elapsed since the most recent enforcement action. Furthermore, in Driehaus the Court declined to determine whether the civil enforcement proceedings, without the additional threat of criminal prosecution, was sufficient to confer standing. Larrabee does not allege any threat of criminal prosecution connected with the Policy.

In sum, the Court finds that plaintiff does not face an imminent injury and thus lacks Article III standing. Having so decided, the Court declines to address the parties' other arguments….

Michael Fitzgerald (D. Mass. U.S. Attorney's Office) represents the government.

The post Plaintiff Too Small to Challenge President Trump's Practice of Targeting Law Firms He Dislikes 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: Our old friend Brian Morris rejoins the show for exoneration litigation. And Belmont picks.

• Shortly after beginning his second term, President Trump, and later Secretary of Defense Pete Hegseth, announce policy changes barring persons currently or previously afflicted with gender dysphoria from military service. Current and prospective servicemembers challenge the policy change, and the district court issues a preliminary injunction. D.C. Circuit: The injunction is proper for current service members, but improper for prospective applicants. Concurrence: The injunction is proper for both. Dissent: The injunction is proper for neither.
• In 2022, the feds seized the superyacht Amadea in Fiji as part of Task Force KleptoCapture, targeting Russian oligarchs. Second Circuit: Cool.
• Man dies after jumping from a highway overpass. Philadelphia police officer, in violation of department policy, uses his personal cell phone to photograph the dead man lying on the road. Then, in "a poor attempt at 'humor,'" he sends it to several colleagues, one of whom posts it to social media. It is forwarded to the bereaved mother, who sues the officer. Third Circuit (unpublished): Qualified immunity. There is no clearly established right to control dissemination and exploitation of one's close relatives' death scene images. Dissent: Our history and traditions establish that it was so obviously wrong that he was on notice.
• Virginia inmate is accused of indecent exposure; he insists prison officials view video that he says will exonerate him. They decline and convict him. He asks them to preserve the footage. They delete it. Spoliation sanctions? District court: Summary judgment to the prison officials without ruling on that motion. Fourth Circuit: There are three ways a district court can abuse its discretion, and this decision "appears to abuse discretion in all three ways."
• Children in the West Virginia foster care system file class action, alleging a variety of abuses and rights violations. Following extensive document discovery and 45 depositions, the district court—without briefing or even notice to the parties—sua sponte dismisses the case with prejudice for lack of standing. Fourth Circuit: Undismissed. But we deny plaintiffs' request to reassign the case to a different judge (even though this is the district court's second erroneous dismissal of this case).
• Jackson, Miss.'s water system appears to be a disaster, and several residents sue over difficulties it's caused. Fifth Circuit (unpublished): The good news is that you have standing because you're seeking damages for the alleged injuries you suffered. The bad news is that you lose your due process claims on the merits because you prevailed in the city's administrative process for adjusting your water bills and you haven't meaningfully alleged anything more was wrong.
• New Orleans crime lab tech warns supervisors about safety and accuracy concerns with the lab's drug testing. Supervisors, officers show up at the tech's home to conduct a "wellness check" and insist that the tech accompany them to take a drug test (the very one whose accuracy he questioned). He demurs, the supervisors call their boss, who says the tech is "being ordered to come into work to take this test." He's searched, placed in the back of a cop car, and driven to take his blood test, where he resigns instead of being tested. Fourth Amendment violations? Fifth Circuit (2024): Qualified immunity for some, not all. Fifth Circuit (2026): No QI for the supervisors' boss, who ordered officers to bring the tech in without a warrant or exigent circumstances. (Both officers faced internal discipline: one suspended, one fired.)
• The Fifth Circuit gives an (unpublished) update on the matter alternatively known as "The Bleak House of arbitration," or, as one of the case's lawyers said on the Short Circuit 10th anniversary podcast, "A Final Arbitration to Rule Them All."
• Man struggles with, disarms suspect who'd broken into his house after a gunfight with Laredo, Tex. police. The man exits the house with one hand in the air and the suspect's AR-15 (pointed at the ground) in the other. An officer shoots him without warning or command. (He lives.) Fifth Circuit: As lamentable as that is …
• What's the worst story so far about AI-hallucinations in court? Perhaps not wearing the green jacket but this Seventh Circuit story nevertheless commands attention wherein counsel submits a brief "replete with false quotations, erroneous statements of law, and factual representations contradicted by the record." Plus, watching the guilty lawyers throw each other under the bus is entertaining in a Homer Simpson kind of way.
• Potential prison informant alleges detectives put him at risk by being too open about his potential cooperation against a fellow inmate. Seventh Circuit: But there's no clearly established right against such risk if you weren't actually attacked by another inmate. Instead, "the tradeoff between investigation and safety has been left to law enforcement agencies and the political process." Qualified immunity.
• Member of the Coast Guard Auxiliary is admonished to remove controversial posts on LinkedIn, as well as photos of himself in uniform. He demurs, sending a letter to his Commodore stating, "I disagree with your fake Letter of Caution, and am going to file a complaint against you for your racist and bigoted action against me because I am White. I find your behavior reprehensible." Following further noncompliance and incendiary posting, he's kicked out. He sues for First Amendment retaliation. Seventh Circuit: The Coast Guard Auxiliary deserves deference on this.
• Kansas City, Mo. police receive an anonymous tip that a felon has a gun. A squad tails him and his wife, makes a routine traffic stop with guns drawn, finds a gun in his wife's purse, and charges him with felon-in-possession. He claims the gun was his wife's. The "tipper" is never identified but the fact there was a tip is introduced at trial. A jury convicts. Eighth Circuit: There's this thing in the Sixth Amendment about confronting your accuser. Conviction vacated!
• Wanna see another AI-hallucination car crash? Cool, but you'll also want to consider the business model exposed in this Ninth Circuit sanctions opinion where a couple of guys get law grads who haven't passed the bar to write their briefs and then just file them without checking anything.
• Gov't: We took a million dollars from this guy at a traffic stop and we're going to forfeit it unless he provides an extremely detailed written explanation of exactly where it came from and how he earned it. This guy: I don't want to write you, like, a novel. I just want to argue that the traffic stop violated the Fourth Amendment and that you have to give my money back. Ninth Circuit (en banc): And he gets to do that.
• Children and young adults sue the president for executive orders they claim will exacerbate climate change. Ninth Circuit (unpublished): Big no from Article III, from the too-speculative link between the orders and alleged injuries to redressability issues and constitutional structure.
• The nonprofit Tallahassee Bail Fund posts bond for certain criminal pretrial detainees in Leon County, Fla., who, though eligible for bond, can't afford it. But even if detainees show up to trial and are acquitted, the county (per state law) can keep the bond to cover whatever outstanding fines and fees the detainee might otherwise owe. Tallahassee Bail Fund: This is crippling our mission, and it violates detainees' rights under the Eighth Amendment's Excessive Bail Clause. Eleventh Circuit (2-1) (weirdly unpublished): It might be crippling your mission, but the detainees themselves are the right people to vindicate their excessive-bail rights, and there are lots of ways they could do it, including in federal court. (Look forward, presumably, to a Rule 23(b)(2) class action brought on behalf of current and future detainees who would be beneficiaries of the Tallahassee Bail Fund's bond-posting program but for Florida's bond-snatching statute.)
• And in en banc news, the Fifth Circuit, 9-8, will not reconsider its decision that Ex parte Young allows plaintiffs to sue the Texas Secretary of State and the Texas Attorney General to challenge various bits of the state's Election Protection and Integrity Act of 2021. Oldham, J., dissentaling, likewise will not reconsider his view that Ex parte Young is bad and the Fifth Circuit's Ex parte Young precedent is worse.

Lightning victory! During the pandemic, botanist Laura Schaefer transformed her half-acre grass lot into an abundant garden with over 150 different kinds of vegetables, flowers, trees, and other plants, mostly all native to the area. Last week, however, Millstadt, Ill. officials issued her a bogus citation for "high grass or weeds" and gave her seven days to tear out the garden—or the village would do it and charge her for it. But after IJ sent a sternly worded letter and local news started to dig in, the village backed off. Illinois is one of three states that protects gardens specifically; indeed, the state's 2021 law is based on an IJ model bill, and we invite everyone else to have a gander. 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.

The Texas Legislature enacted Senate Bill 2420 …, the App Store Accountability Act, with bipartisan support to help parents direct and supervise children's downloads of apps and in-app purchases. The Act accomplishes those goals by requiring age verification; parental consent; and age rating and content display. {[The law] requires app stores to provide certain information in obtaining parental consent, referring to ratings and content … that are determined by the developer.}

The district court issued universal preliminary injunctions against SB2420 after applying strict scrutiny. The State of Texas seeks a stay pending appeal…. Texas has made a strong showing that it is likely to succeed on the merits of its claim that the district court committed several reversible errors.

First, the district court likely erred in applying strict scrutiny to significant parts, if not all, of the Act. At most, SB2420 regulates speech that "proposes a commercial transaction," which is subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). {SB2420 may not regulate speech at all, given that it does not target any substantive content but instead regulates commercial conduct with an incidental relationship to speech.}

App store transactions are commercial in nature. After all, users browsing an app store can see a catalog of applications, obtain additional information, and download or purchase an application.

App listings propose commercial transactions, regardless of whether any monetary payment is made. In fact, the "payment" for apps that are purportedly "free" is access to user data and private information. Any minor who downloads an app must accept its terms of service, including agreements about how the minor's data is used. Some terms require minors to waive the right to sue by agreeing to "arbitration pr[o]visions that no child can understand." Detailed user data, including that of minors, is the life-blood of the app store monetization ecosystem….

Second, … Texas has likely shown that the SB2420 survives intermediate scrutiny because the Act "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." Requiring age verification, parental consent, and app-related content ratings likely directly and materially advances Texas's substantial interest in protecting children's data, safety, and privacy in a digital world. Thus, there is likely a "reasonable fit" between SB2420's methods and goals allowing parents to direct and supervise children's downloads of apps and in-app purchases.

That some works protected by the First Amendment may be the object of app downloads or in-app purchases does not categorically exempt them from ordinary regulations governing commercial transactions. Otherwise, any company involved in proposing a commercial transaction could trigger strict scrutiny by incidentally including speech as part of the transaction….

 Third, … SB2420's emergency-services exception {likely does not run afoul of constitutional concerns}. [It] is not likely content-based but, instead, focuses on why the service is needed, not what is being communicated. "[E]mergency calls serve the vital purpose of protecting the safety and welfare of Americans." Section 121.022(h)(1) directly addresses data and privacy concerns by requiring that the emergency services app "limit[ ] data collection to information" that is "collected in compliance with" the Children's Online Privacy Protect Act ("COPPA") and "necessary for the provision of emergency services." Users do not need to create an account to access and use the emergency service app….

We need not conclusively resolve the question of the other exception for an app that "is operated by or in partnership with" a regulated nonprofit organization that "develops, sponsors, or administers [ ] standardized test[s]." That standalone exception, which focuses on the identity of the speaker, does not necessarily reflect a content preference, but rather the reality that students often need to take tests "used for purposes of admission to or class placement in a postsecondary educational institution or a program within a postsecondary educational institution." The speaker-based distinction appears to be content-neutral, not content-based, in discriminating among ideas or viewpoints. And section 121.022(h)(2)(B) mitigates data-privacy concerns, requiring that the non-profit "is subject to" separate laws prohibiting certain uses of student information.

In any event, that limited standalone exception can be severed consistently with SB2420's strong severability provision and severability principles, because the remainder of SB2420 is "capable of functioning independently" and is "fully operative as a law." The district court likely erred in failing faithfully to apply the severability clause. {We do not suggest that there are any problematic provisions of SB2420 and merely follow the law's unambiguous textual severability command.}

{Insofar as there may be any unconstitutional application of SB2420, the district court failed to conduct a proper facial-invalidity analysis under Moody v. NetChoice (2024). Plaintiffs who bring facial challenges must demonstrate that "the ratio of unlawful-to-lawful applications is … lopsided enough to justify the strong medicine of facial invalidation." Put another way, Plaintiffs must show that "the law's unconstitutional applications substantially outweigh its constitutional ones" to prevail in "a facial suit [ ] based on the First Amendment." It is highly unlikely that Plaintiffs have met this "rigorous standard."} …

[And t]hough we express great skepticism that Plaintiffs are entitled to relief, any such relief, if warranted, would be an injunction limited to enforcement against the Students Engaged in Advancing Texas ("SEAT") plaintiffs and any identified members of the Computer & Communications Industry Association ("CCIA"). In any event, a blanket prohibition on SB2420's enforcement is likely inappropriate….

The need to protect children is intensified in the digital world, where app stores have violated existing consumer protection and child privacy laws for years, despite a federal consent decree. {See, e.g.,ROA.26-50001.849 ("The consequences are substantial. As documented in public reports, thousands of children have been sextorted, targeted with illegal drugs, contacted by traffickers, exposed to dangerous viral challenges, or encouraged toward self-harm by chatbots, often inside apps that app stores present as appropriate and safe for young teenagers.").} Absent SB2420, parents' ability to protect their children is imperiled because app stores have encouraged minors to download applications and make in-app purchases without giving parents accurate content information or obtaining their informed consent.

Any purported burden on app stores and developers is minimal because SB2420 requires only "commercially reasonable" verification methods and allows developers to use "widely adopted industry standards" in determining age ratings and those related to corresponding content. The balance of equities and public interest are clearcut in Texas's favor….

Judge Catharina Haynes concurred in granting a stay pending appeal, but otherwise did not join the court's opinion and did not further explain her views.

The post Texas Age Verification / Parental Consent Requirements for App Stores Likely Constitutional, Fifth Circuit Holds appeared first on Reason.com.

Governor Kathy Hochul has a decision to make by June 12.

The New York State legislature recently tackled the vital, pressing issue of whether the terms "mother" and "father" are cruel and oppressive. They concluded that these terms are indeed transphobic and need to be replaced in law by "gestating parent" and "non-gestating parent." "Paternity" is also bigoted and axed. Among the Democrats, the vote was, natch, a few shy of unanimous. And let's not kid ourselves: Hochul's signature is inevitable. On all questions gay and trans, the Dems are now entirely controlled by trans and "queer" extremists.

Now take a look at this week's Senate hearings on sex changes for children. Again, the Dems were unanimous, and their position utterly unchanged: the "safety" and "effectiveness" of transing children is beyond any dispute; no one but Republican bigots oppose it; and any problems can be dealt with retroactively by malpractice suits. (The only slight concession to reality was an end to the lie that transing children was the only way to stop them killing themselves. But no apology for the lie, of course. Or for the human wreckage the lie caused.) The Cass Review never happened. Affirmation-only guidelines never existed.

Gays and lesbians and feminists and liberals who oppose transing children and defend the fact of the sex binary? Senators Sanders, Markey, and Baldwin don't seem to know we even exist. Unsurprising. MS NOW, to take one example, has never had a single guest who's been critical of child sex changes. The Cass Review, when it has even been mentioned, has been instantly dismissed. The gay and lesbian press, such as it is, reports on all this as a trans genocide in full swing….

You can read the whole thing here. I haven't followed all these issues closely, especially as to their political effects; but Sullivan certainly has. If readers can recommend sensible contrary views, I'd be glad to add links to them as well.

The post "The TQ+ Threat To LGB Rights" appeared first on Reason.com.

The Constitution provides only one method to punish federal judges who misbehave: impeachment, which can lead to removal from office. But there is broad consensus that judicial impeachment should be reserved for only the most egregious cases. Instead, Congress crafted a middle ground. A judicial council within the regional circuit can review allegations of misconduct, impose reprimands, and where appropriate, make an impeachment referral to the House of Representatives. Of course, the House retains the power to impeach a judge regardless of what the judicial misconduct process determines.

For the most part, this arrangement works well. But a recent case from the Judicial Council of the Eleventh Circuit, based in Atlanta, represents a complete breakdown of the process. A married judge repeatedly had sex in her chambers with a police officer who worked in her district and then lied in an attempt to cover up her compromising acts. Despite this brazen dishonesty, the judicial council slapped her on the wrist and refused to even publicly name her. Since the judiciary failed to live up to its end of the bargain, Congress needs to open an impeachment inquiry.

Judge Eleanor Ross has served on the federal bench in Atlanta since 2014. As early as 2022, she began an affair with an Atlanta police department officer. Over the course of two years, Judge Ross had sex with the officer at least five times in her judicial chambers. In the abstract, no canon of judicial ethics prohibits adultery. Moreover, a judge could have a relationship with a police officer, so long as she recused from any cases that could create a conflict of interest. But life-tenured judges should avoid any compromising actions that could bring disrepute to the court or place them at risk for blackmail. Yet Judge Ross kept her trysts a secret. The district chief judge learned of her sexual activity only after Judge Ross's law clerk heard "kissing" and "moaning" sounds from chambers and blew the whistle.

The in-chambers sexual conduct, by itself, may perhaps have been enough to warrant impeachment, but what happened next clearly crossed the line. The chief circuit judge, who by law is responsible for investigating allegations of judicial misconduct, asked Judge Ross about the allegations. Judge Ross lied. She insisted that "I have never engaged in sexual intercourse in my office." She denied knowing which police officer visited her chambers, even though he signed his name to enter. She charged that her law clerk was trying to retaliate against her. The judge may have even tried to clean a couch cushion that appeared to have been stained with bodily fluids. In sum, the judge repeatedly made false statements to her colleagues and attempted to obstruct the investigation.

The judicial council that investigated this matter laid out the sordid details and concluded that Judge Ross lacked candor. But in the end, Judge Ross's colleagues gave her only the slightest reprimand. Judge Ross agreed to write vaguely-worded letters of apology to her law clerks. And the judge agreed to skip her turn as chief judge and not to serve on any judiciary-wide committee. Worst of all, the judicial council chose to make her reprimand private, finding that she was extremely apologetic and was unlikely to commit similar conduct in the future. The council report did not even name Judge Ross, although it included so many specific facts that it wasn't hard to figure out who she was.

The council failed in its duty to police judicial misconduct. So did the national appellate committee that reviewed the council's decision. Both bodies did not even acknowledge precedent from a similar case. In 2007, Judge Samuel Kent of the Southern District of Texas sexually assaulted court employees, and lied to obstruct the investigation. The judicial council and the Judicial Conference of the United States, whose presiding officer is the Chief Justice of the United States, recommended that Kent should be impeached. The House agreed and unanimously impeached Kent. Kent resigned his judgeship to avoid a certain conviction in the Senate.

To be sure, Judge Kent's sexual assaults were criminal, while Judge Ross's adultery was lawful. But several members of the House Judiciary Committee stated that lying to the judicial body investigating the misconduct is by itself an impeachable offense. On these grounds, there is strong reason to conclude that Judge Ross has also committed an impeachable offense.

The House of Representatives should pick up the investigation of Judge Ross where the judicial council stopped. And this matter should not be a partisan affair. Much like with the Kent proceedings, members on both sides of the aisle should recognize that a judge who lies about having sex with a police officer within her district, and then attempts to obstruct the investigation, has disqualified herself from judicial service.

This process also should not be rushed. One deliberative approach can be found in the impeachment inquiry of Judge Thomas Porteous in 2008. The House established a twelve-member task force with six Republicans and six Democrats to investigate the matter. This collaboration would allow the process continues regardless of who holds the gavel following the midterm elections.

We continue to believe that judges should be the first line to investigate judicial misconduct. But if judges are unable to fairly sit in judgment of their peers, or worse, are seen as covering up misdeeds, Congress must exercise its constitutional prerogative. Serving as a life-tenured judge is a privilege and not a right. Judges who abuse that privilege must be willing to face public scrutiny, especially where they create conflicts of interest that could require recusals. Judge Ross should resign, but if she fails to, the impeachment process may help her see the light.

--

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston and is an adjunct fellow at the Manhattan Institute. Arthur Hellman is an emeritus professor at the University of Pittsburgh School of Law; he helped to draft the current version of the judicial misconduct statute and testified as an expert witness at the impeachment hearing on Judge Kent. Gabe Roth is executive director of Fix the Court, which advocates for greater openness and accountability in the federal judiciary.

The post Congress Needs To Investigate Judge Who Lied About Having Sex With Police Officer appeared first on Reason.com.

I am quite skeptical of the lawfulness of the Environmental Protection Agency's rescission of the endangerment finding upon which EPA regulation of greenhouse gases under the Clean Air Act is based. It is an aggressive move that stretches administrative law norms and challenges  Supreme Court precedent.

While I am not convinced the endangerment rescission is lawful, I would hardly argue it is unconstitutional or impinges upon religious liberty. The folks at Our Children's Trust--the group behind the various kids climate suits--feels otherwise. They (along with Public Justice) have filed a challenge to the endangerment finding repeal making such claims.

Last month, in Venner v. EPA, OCT and Public Justice filed a motion to stay the repeal of the endangerment finding alleging the EPA's action violates the youth plaintiffs' "fundamental free exercise rights under the Religious Freedom Restoration Act" and their "rights to life and liberties under the Fifth Amendment."

Longtime readers know that I do not think much of the federal constitutional arguments advanced in the various kids climate cases. Even without recent decisions such as Dobbs I find the claims that the federal government's failure to control greenhouse gases is a constitutional violation to be outlandish. The idea that federal courts should superintend federal energy policy is hard to fathom--and would be quite hard to contain. Thus it should be no surprise that federal courts (with one exception) have consistently concluded that they lack jurisdiction over these efforts to constitutionalize climate policy--most recently on Wednesday in Lighthiser v. Trump.

The latest filing adds a new wrinkle in that it seeks to add religious liberty claims into the mix. Specifically, the claim is that a failure to mitigate climate change will burden the exercise of the plaintiffs' religious faith because rising temperatures will make it more difficult to practice their faiths. [I have posted excerpts from the brief below the jump.]

I find this argument to be quite creative, but I am also quite confident that it will go nowhere. (The petition's claim that the EPA completely failed to respond to comments raising these concerns, on the other hand, does raise a serious administrative law issue, but I have not looked to see if the claim is correct.])

As for the endangerment finding itself, I will have a brief essay in the summer issue of Regulation expanding on some of my concerns about the lawfulness of the EPA's move. Rest assured, neither the Fifth Amendment nor RFRA is not among them.

From the petitioners motion to stay the endangerment repeal in Venner v. EPA:

The Repeal Rule substantially burdens Petitioners Elena, J.K., M.D., and E.S.'s sincerely held religious beliefs. "Government shall not substantially burden a person's exercise of religion" unless it can demonstrate the burden furthers "a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1. RFRA offers "broad protection for religious liberty" beyond that afforded by the First Amendment. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 (2014); Holt v. Hobbs, 574 U.S. 352, 356 (2015). Thus, Petitioners' showing of substantial burden under the First Amendment also satisfies RFRA. See id. . . .

The Repeal Rule pressures E.S., J.K., and M.D. to modify their behavior in a way that seriously violates their sincerely held religious beliefs by forcing a choice between adherence to their religious tenets, and protecting their health and safety. Petitioners E.S. and J.K. are observant Jews whose religion requires them to walk to synagogue on the Sabbath. Declarations of L.K. ¶10 (Ex. 20); J.K. ¶¶5-6 (Ex. 21); E.S. ¶¶16-18 (Ex. 19). M.D. is an observant Muslim whose religion requires her to fast during Ramadan. M.D. ¶¶4-7 (Ex. 23); S.A. ¶¶12-13 (Ex. 22). Each Sabbath that is made too hot for E.S. and J.K. to walk safely to synagogue, and each day of Ramadan that is made too hot for M.D. to safely fast and wear hijab, is a day they are prevented from observing important requirements of their religions. E.S. ¶¶12, 22-24; L.K. ¶19; J.K. ¶¶7-9; M.D. ¶¶4-7; S.A. ¶14; Pinsky ¶¶41, 44-46, 58-59; see also L.K. ¶¶25-34 (Sukkot practice harmed); J.K. ¶¶12-14 (same). The Repeal Rule forces E.S., J.K., and M.D. to choose between religious practice and physical safety more frequently than they would otherwise because the Repeal Rule will cause an additional 8.81 gigatons of CO2 pollution to be emitted. Wilson ¶20. This staggering quantity is 1.85 times the United States' total CO2 emissions in 2024. Running ¶11. This quantity worsens local heat surrounding E.S.'s, J.K.'s, and M.D.'s homes, increasing the number of days that they are prevented from exercising their religious beliefs. Running ¶¶15-34; Wilson ¶¶6-13; Jacobson ¶9; E.S. ¶¶24, 22 ("If I'm not in a minyan, there are some prayers I can't say."); J.K. ¶11; M.D. ¶7. The burden is more substantial here than in Hobby Lobby because the pressure for youth to disobey their religion's requirements comes not from a fine that can be paid, but from physical hazards to bodily health and safety, other inalienable rights. E.S. ¶12; Pinsky ¶¶41-45.

The Supreme Court's decision4 in Mahmoud v. Taylor confirms that the Repeal Rule substantially burdens E.S., J.K., and M.D.'s religious exercise because it poses "a very real threat of undermining the religious beliefs and practices that the parents wish to instill in their children" and thus is an "objective danger to the free exercise of religion." 606 U.S. 522, 543, 565 (2025) (holding requiring LGBTQ+inclusive storybooks in school curriculum substantially burdens parents wishing to instill contrary religious beliefs in children) (citation modified). The burden imposed here is more severe than in Mahmoud because the Repeal Rule hinders E.S.'s, J.K.'s, and M.D.'s religious development by preventing their ability to safely engage in core religious practices with their family in community. E.S. is "a young person who is actively trying to develop [his] religious practice[,]" and "losing a Shabbos [Sabbath] service" makes him "less capable of internalizing Jewish Law and integrating it into [his] life." E.S. ¶23. In J.K.'s family, "[e]ach additional hot Saturday diminishes the habit of attending synagogue regularly, thereby diminishing our closeness to God, our sense of community, and our ability to inspire our children to lead Jewish lives." L.K. ¶21. This "profoundly distress[es]" J.K.'s mother because it "could impact both [J.K.'s] ability to enjoy the service as well as his ability to transmit this essential knowledge to his future children." Id. ¶22. M.D.'s mother confirms that extreme heat and climate events have disrupted their religious rituals, and she worries about her daughter's safety wearing hijab in dangerous heat. S.A. ¶¶9-16. As a parent, she must weigh her children's immediate health against her obligation to pass down religious traditions and practices "at a crucial time in my children's religious development as they are entering adulthood." S.A. ¶¶8-17. The increased localized heat from the GHG emissions from the Repeal Rule will thus "substantially interfer[e] with [Petitioners'] religious development" during their "crucial adolescent stage of development" by limiting meaningful opportunities to learn, practice, and internalize their parents' religious values. Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).

The Repeal Rule also imposes a substantial burden on Petitioner Elena, a Catholic youth, by forcing her to choose between two sincerely held beliefs: the obligation to procreate, and the obligation to protect the lives of children. Elena ¶¶9 14. Elena cannot do both because the worsening, rather than improving, air pollution and climate conditions created by the Repeal Rule limit the conditions which Elena sincerely believes are necessary for nurturing and protecting children. Elena ¶¶1314; Pinsky ¶¶10-16, 28, 37, 60-62; Wilson ¶¶4-34; Running ¶¶16, 25-50. "It violates my beliefs to bring someone into this world whose life would be burdened with hazardous air quality and increasing extreme and dangerous heat," because such conditions undermine "life, in utero, for newborns, for growing children, and for mothers[.]" Elena ¶¶13-14; Pinsky ¶¶61-62 ("More babies will be born early or at low weight . . . [a] small number of these babies will also die."); Wilson ¶¶4-34; Running ¶¶16, 25-50. The Repeal Rule thus substantially burdens Elena's exercise of her Catholic faith by forcing her to "engage in conduct that seriously violates" her beliefs by making it impossible for her personally to safely practice her faith's call to procreate and protect life. See Hobby Lobby, 573 U.S. at 720.

The post Youth Climate Plaintiffs Challenge Endangerment Repeal on Religious Liberty Grounds appeared first on Reason.com.

Mosler brings this action against Wagner for defamation per se and unauthorized publication of name or likeness. The facts at summary judgment are as follows:

Prior to the instant case, Wagner filed a twenty-count complaint against Mosler in the Circuit Court for the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida (the "State Court Proceeding"). After the jury returned a verdict for Wagner, the Honorable Luis Delgado set aside the jury's verdict and entered final judgment in Mosler's favor.

During that time, around September 2024, Wagner registered the website domains, titled "JudgeX.org," "warrenmosler.co.," and "ModernMonetaryTheory-Scam.org," all of which form the basis of the current action. Through these publicly available websites, Wagner published various statements claiming that Mosler bribed Judge Delgado when he overturned the jury's verdict. The websites also represent Mosler's name and likeness without Mosler's consent. In addition to the websites, Wagner continued to disparage Mosler through a YouTube channel he created, called "JudgeXO," once again accusing Mosler of bribing Judge Delgado in the State Court Proceeding.

Wagner's basis for this allegation? A statistical analysis (the "Statistical Analysis") based on mathematical probabilities. This analysis concluded that it was 99.999999999% probable that Judge Delgado accepted a bribe from Mosler. It further informed that it would have taken "an honest judge" nearly thirty-seven billion years to make such a remarkable ruling overturning the jury's verdict in the State Court Proceeding.

The Statistical Analysis, however, admits of the possibility that Judge Delgado was not bribed. Wagner, too, admits that possibility. Wagner does not know what Judge Delgado received as part of this alleged bribe nor who made this bribe. In fact, Wagner nor his counsel in the State Court Proceeding ever argue that bribery was the cause of Judge Delgado setting aside the jury verdict. At Wagner's counsel's deposition, counsel admitted that there was no evidence to support that Judge Delgado was bribed.

The court granted plaintiff summary judgment as to defamation:

To defeat summary judgment here, Wagner would need to show a dispute of fact that the bribery allegations were, in fact, true. He has not done so. It is undisputed that Plaintiff did not bribe Judge Delgado. Defendant does not know how the alleged bribery occurred and what Judge Delgado purportedly received as part of the bribe. All he offers is a speculative statistical analysis based on mere probability. (The Statistical Analysis also admits the possibility that Judge Delgado was not bribed. That clearly won't carry the day. "Inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion."). Therefore, there is no dispute of material fact that Defendant's defamatory statements were false….

Mosler is [also] entitled to summary judgment on the fault prong of his defamation per se claim…. It is not clear from this record whether Mosler is considered a public figure such that he must meet the actual malice standard. But assuming he is, there is no dispute that Wagner acted with reckless disregard for the truth, amounting to actual malice. Again, Wagner puts forth no information concerning the bribery apart from the Statistical Analysis; he does not know who bribed Judge Delgado nor what Judge Delgado received in exchange. He also admits the possibility that Judge Delgado was not bribed. This evidence is sufficiently undisputed for the Court to find that Wagner acted with "a high degree of awareness of probably falsity" when he made the bribery allegations concerning Plaintiff….

The court likewise granted summary judgment as to unauthorized publication of name or likeness:

To demonstrate a prima facie case for an unauthorized publication of name or likeness pursuant to Section 540.08(2), Florida Statutes, a party must show that "the defendant (1) used [his] name or likeness to directly promote a product or service (2) without [his] consent." It is also required that the plaintiff's name or likeness be used "to directly promote a commercial product or service, separate and apart from the publication." …

Wagner used Mosler's name and likeness to directly promote his various websites, including the one with the domain JudgeX.org. These websites are replete with Mosler's name as well as pictures and descriptions of him cast in a negative light. This was all seemingly done to promote JudgeX—including the use of the Statistical Analysis which Wagner claims to have invented—for others to track bribes made in the judiciary. ("JudgeX.org will be a [] tool to allow anyone to perform a statistical analysis on a Judge to discern when he/she has taken a bribe.")

The court therefore permanently enjoined Wagner "from using Plaintiff Warren B. Mosler's name and likeness on any website domain, including those referenced in the Amended Complaint"; there will still be a trial on damages.

Steven Douglas Weber (Weber Law, P.A.) represents Mosler.

The post A Rare Summary Judgment in Favor of Plaintiff in Libel Case appeared first on Reason.com.

From Judge Gretchen Lund (N.D. Ind.) Monday in Chen v. Univ. of Notre Dame; the plaintiffs' Complaint focuses on a Notre Dame Law School Religious Liberty Clinic amicus brief in an Argentine court that included allegedly false "website content and related activities accusing China of genocide and crimes against the human rights of Uyghurs in Xinjiang."

Plaintiffs' Complaint contains very few allegations involving Plaintiffs themselves; largely, the Complaint references alleged harms to "mainland China" and Chinese people generally. There are only six paragraphs in which Plaintiffs identify harm they have suffered. Each are discussed below.

Paragraph 71 alleges that "defendants deliberately fabricated or spread false information and spread lies that slander and demonise China and the Chinese people, The plaintiff is also deeply harmed by this." This appears to be more of a "wrong suffered by the public at large," rather than an actual harm to Plaintiff. This is especially true where Plaintiffs have not identified how they have been demonized, or how the slander has personally caused harm to them. This is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 92 alleges that the defendant "made false statements that were believed by some Chinese children in the USA, causing them serious emotional distress and undermining their connection to their Chinese heritage. The plaintiffs encountered this problem."

Here again, Plaintiffs' pleading appears to implicate the Chinese public at large, and does not identify how they specifically were impacted. Plaintiffs do not identify the concrete harm they suffered, as they are not children nor do they appear to believe the alleged false statements made by Defendant, so this is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 96 alleges that Plaintiffs' reputations were directly harmed by "defendant's claim that alleged crimes of human rights violations, crimes against humanity, genocide, and forced labor against Uyghur and other ethnic minorities…" were being committed in Xinjiang. The Court fails to see how Plaintiffs' reputations were in-fact harmed, nor have Plaintiffs provided any additional allegations or evidence in support of this assertion. This is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 99 alleges that because of Defendant's amicus brief filed in the Court of Argentina, "plaintiffs becomes[sic] a victim of these false accusations, Social reputation is damaged, feeling angry and painful, Teaching children about racial identity becomes a problem. In the interest of truth and justice, our lawsuit is primarily for ourselves and also represents all Chinese Americans and mainland Chinese compatriots."

First, much like the other allegations in their Complaint, this appears focused on the alleged harms suffered by Chinese people generally, not Plaintiffs. Second, Plaintiffs provide no evidence or further allegations supporting their assertion that they themselves have suffered false accusations and that their social reputations have been harmed. The same is true of paragraph 107, alleging that Plaintiffs' reputations have been damaged. For these reasons, these also are not injuries sufficient to satisfy the requirements of standing under Article III.

Brian E Casey (Barnes & Thornburg LLP) represents the University.

The post Plaintiffs Lack Standing to Sue over Notre Dame Law Clinic's Filing Amicus Brief Condemning China's Actions Towards Uyghurs appeared first on Reason.com.

The post Today in Supreme Court History: June 5, 1916 appeared first on Reason.com.