The Volokh Conspiracy

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

An excerpt from Judge Joshua Dunlap's opinion concurring in the denial of rehearing en banc yesterday in StandWithUs Center for Legal Justice v. MIT (from my research, just the third opinion he has written since joining the court in November):

This case touches on the intersection of the First Amendment and Title VI. As such, it presents difficult issues relating to the constitutional guarantee of freedom of speech and the scope of antidiscrimination laws—and it does so in the fraught context of hot-button geopolitical controversies and the insidious reality of antisemitism. In my view, the panel went further than it ought to have gone to resolve the present dispute; nevertheless, I do not believe that the arguments raised justify rehearing en banc. I write separately to briefly note my concerns and rationale for denying rehearing….

[A]ntidiscrimination law, of necessity, only provides a partial remedy for antisemitism because of our concomitant dedication to freedom of speech. Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The First Amendment, however, prohibits government restrictions on speech based on its message, ideas, subject matter, or content, and provides "special protection" to speech relating to matters of public concern—even if it is outrageous. Title VI must therefore be applied with care for the constitutional problems that would arise if it were construed to suppress political speech. Cf. Honeyfund.com Inc. v. Governor (11th Cir. 2024); Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001); DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995).

The panel addressed this tension by, first, concluding that Title VI does not require a university to "quash protected speech," and, second, concluding that the protesters' actions "did not render their speech antisemitic, much less unprotected." As to the first conclusion, the panel affirmed that speech on matters of public concern is specially protected under the First Amendment, including on college campuses. The panel reached the latter conclusion to avoid determining whether racist speech can be punished under Title VI without violating the First Amendment. I have some concerns with the panel's approach….

[M]y central concern … relates to the panel's determination that the speech alleged in this case was not even plausibly antisemitic…. The panel acknowledges the existence of an "ongoing debate as to the relationship between anti-Zionism and antisemitism—debate that our constitutional scheme resolves through discourse, not judicial fiat." But even as it makes this statement, the panel seems to impose just such a resolution by concluding that statements such as "Palestine will be free, from the river to the Sea!" and "There is only one solution! Intifada revolution!" were not—at least in the context of the facts alleged—antisemitic. But I find it at least plausible that, when made in the immediate aftermath of "the deadliest massacre of Jews since the Holocaust in a manner that reasonably appears to celebrate and glorify that same violence," such phrases support an "inference of animus towards Jews."

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In this fourth post on our recently published article, we explain how a textualist reading of Section 702 avoids serious constitutional questions under Title VII.

Church Autonomy

The First Amendment Religion Clauses guarantee a religious organization autonomy "with respect to internal management decisions that are essential to the institution's central mission." Included within that autonomy are decisions about who will lead the organization, the shape of its religious beliefs, how to resolve internal religious disputes, and how the organization operates.

A corollary of the church autonomy doctrine is the ministerial exception. It categorically protects a religious organization against a claim of employment discrimination when the claimant is a "minister," meaning a religious leader or one who is entrusted with transmitting the faith.

Some might argue that a religious organization's freedom to make religiously driven employment decisions ends with the ministerial exception. We argue that's wrong. And earlier this month, the Ninth Circuit agreed, holding in Union Gospel Mission of Yakima, Washington v. Brown that the church autonomy doctrine protects a religious organization's freedom to hire non-ministerial employees who are aligned with the employer's faith.

Reading Section 702 as a bare co-religionist privilege would spark substantial questions about Title VII's compatibility with the church autonomy doctrine. To pick one example, a Catholic organization could be liable for choosing a candidate for a key position from among its all-male priesthood. Results like that would interfere with the core of church autonomy—a church or faith-based organization's "internal management decisions that are essential to the institution's central mission."

Title VII could then be on a collision course with the First Amendment. A textualist reading of Section 702 avoids that problem by allowing religious employers to make religious judgments about employment while holding them accountable for employment decisions that discriminate for non-religious reasons.

R. Shawn Gunnarson is a shareholder in the Kirton McConkie law firm, where he is a member of the Appellate, International, and First Amendment and Religious Organizations sections.

James Phillips is an academic affiliate at Schaerr Jaffe LLP, the author of over 30 law review articles, and a fellow of the Public Law and Policy Program with the UC-Berkeley School of Law.

Christopher Bates is a shareholder in the Kirton McConkie law firm, where he is co-chair of the firm's Appellate section and a member of the Litigation and First Amendment and Religious Organizations sections.

Religion and the Law

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1/22/1890: Hans v. State of Louisiana argued.

The Associated Press reports:

Immigration officers assert sweeping power to enter homes without a judge's warrant, memo says

WASHINGTON (AP) — Federal immigration officers are asserting sweeping power to forcibly enter people's homes without a judge's warrant, according to an internal Immigration and Customs Enforcement memo obtained by The Associated Press, marking a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches. The memo authorizes ICE officers to use force to enter a residence based solely on a more narrow administrative warrant to arrest someone with a final order of removal, a move that advocates say collides with Fourth Amendment protections and upends years of advice given to immigrant communities.

The memo is here. The specific subject is what are known as Form I-205 Warrants, which are signed by immigration officials and not regular judges. As I read the memo, DHS's position is that they authorize ICE to enter homes based on Form I-205 orders everywhere except in the Central District of California—with that exception due to a 2024 ruling in that district, Kidd v. Mayorkas. Unfortunately, however, the memo does not include any legal analysis.

This raises a big question: Can ICE enter a home to make an arrest without a judicial warrant?

The standard view has been that administrative warrants can't authorize home entry because they're executive branch orders, and the executive branch can't be in charge of deciding whether to give itself a warrant. Under Payton v. New York, 445 U.S. 573 (1980), the government needs an arrest warrant to enter a home to make an arrest. But Payton refers to a "judicial officer" inserting his judgment "between the zealous officer and the citizen," and the immigration officer who signs a Form I-205 is not a "judicial officer." That's the traditional thinking.

That thinking is captured by Judge Wright's reasoning in the Kidd v. Mayorkas opinion. Judge Wright was addressing the broad category of administrative warrants, which included the subcategory of Form I-205 warrants, and here's what he wrote:

A judicial "arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within," Payton, 445 U.S. at 603, 100 S.Ct. 1371, and "consistent with the Fourth Amendment, immigration authorities may arrest individuals for civil immigration removal purposes pursuant to an administrative arrest warrant issued by an executive official, rather than by a judge," Gonzalez v. U.S. Immigr. & Customs Enf't, 975 F.3d 788, 825 (9th Cir. 2020). However, as the Court has previously noted, (see Order re Mot. Dismiss, ECF No. 58), the Supreme Court has expressly declined to consider whether an administrative warrant satisfied the requirements for "warrants" under the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 230, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).

Rather, case law supports the need for independent judgment in issuing warrants. See, e.g., Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972) ("The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause…. Thus, an issuing magistrate must … be neutral and detached."); Coolidge, 403 U.S. at 449, 91 S.Ct. 2022 ("[T]he whole point of the basic rule … is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations.").

Here, not all case administrative warrants are reviewed by an independent officer. There are fifty-two immigration officer categories expressly authorized to issue arrest warrants for immigration violations, as well as "[o]ther duly authorized officers or employees of [DHS] or the United States who are delegated the authority." 8 C.F.R. § 287.5(e)(2). For example, a Form I-205 (Warrant of Removal) is reviewed by an ICE supervisor who signs on behalf of the Field Office Director and not by any judge (immigration or otherwise). (Decl. Anne Lai ISO Pls.' Opp'n DMSJ Ex. 12 ("Giles Dep.") 39:23-40:24, ECF No. 492-3.) Because the administrative warrants at issue here lack the independent assurance guaranteed by the Fourth Amendment, they do not immunize Defendants' conduct. This is also consistent with ICE training materials, which affirm "that administrative warrants do not authorize entry into a dwelling without consent." (DSUF 25.)

We don't know the specific basis for DHS's disagreement with that position. But if I had to guess, I would guess that they read Abel v. United States, 362 U.S. 217, 230 (1960). differently than did Judge Wright. In Kidd, above, Judge Wright says that Abel expressly declined to address whether administrative warrants are Fourth Amendment warrants. Technically, that's true. But if you read Abel, Justice Frankfurter is saying that the Court won't hear the defendant's argument that administrative warrants are not valid Fourth Amendment warrants because the defendant did not make the argument below—and Frankfurter drops a bunch of hints that he would be inclined to say that they are valid. Here's the beginning of the discussion from Abel:

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During the first Trump Administration, the President's social media feed was a regular feature of federal court litigation. Courts cited Trump's tweet in cases concerning the travel ban, the cancellation of DACA, and more. Judges looked to these postings for insights into Trump's true intentions.

In Trump v. Cook, the President's social media has once again come to the fore. On August 20, 2025, Trump posted to Truth Social that Federal Reserve Governor Lisa "Cook must resign, now!!!" And, on August 25, Trump sent a letter to Cook purporting to fire her.

The traditional conception of due process requires notice and an opportunity to respond. The Solicitor General argued that the August 20 posting constituted notice. Then, over the ensuing five day period, Cook had an opportunity to respond. Thus, due process was complied with.

Justice Jackson was incredulous of this argument. In this exchange with Solicitor General John Sauer, Jackson doubts that Cook even was notified:

JUSTICE JACKSON: What is the removal order? The -Truth Social post?

GENERAL SAUER: It's the --no. It's the August 25th letter. I think it's Doc 1-4 in the district court. But the removal order addresses that. The evidence is you have mortgage applications within two weeks of each other that make clearly conflicting representations.

JUSTICE JACKSON: Was Ms. Cook given the opportunity in some sort of formal proceeding to contest that evidence or explain it?

GENERAL SAUER: Not a formal proceeding. She was given an opportunity in public because she was notified -

JUSTICE JACKSON: In the world?

GENERAL SAUER: Yes.

JUSTICE JACKSON: Like, she was supposed to post about it and that was the opportunity to be heard -

GENERAL SAUER: Yeah.

JUSTICE JACKSON: --that you're saying is --was afforded to her in this case?

GENERAL SAUER: Yes, and she's had plenty of opportunities in the ensuing months where we've had ongoing litigation where there's never been a personal statement addressing that or --or justifying it.

Sauer repeated this point later in the argument:

I have been tracking the Affordable Care Act since its inception in 2009. And over this time, virtually every economic forecast about the law has proven to be wrong. There were estimates about how Obamacare would reduce the deficit, increase the number of Americans who are insured, reduce costs, and so on. None of these predictions from 2009 have proven accurate. And in fairness, a lot happened! Obamacare became a political football, the Supreme Court rewrote the Medicaid expansion, and the mandate penalty was repealed in 2017. The law was never allowed to go into effect as intended. But that is reality. Politics always intervenes in the real world.

The Congressional Budget Office is notorious for making predictions based on unstated assumptions that fail to account for foreseeable events. I have often wondered whether there is a liberal asymmetry here, where the CBO underestimates the benefits of spending more money, and overestimates the harms of spending less money. Liberal policies will always score better than conservative policies. But I lack the means to quantify this question. Still, despite all of these problems, CBO estimates are used to affect public policy.

The latest example in this saga has been the CBO's estimates concerning Obamacare enrollment. CBO predicted that if ACA enhanced subsidies were not renewed, enrollment would drop by more than 7 million. This forecast stimulated a vigorous debate in Congress, which nearly led to legislation. But, as things turned out, the estimate was not accurate. Not even close. The Wall Street Journal breaks down the numbers:

ObamaCare's annual open enrollment ended Thursday, and what do you know? The media-fueled panic over the expiration of the pandemic-era enhanced subsidies turned out to be a false alarm.

The Centers for Medicare and Medicaid Services (CMS) reported this week that 22.8 million Americans have signed up for ObamaCare plans as of January 3. That's down from 24.2 million last year. People could still sign up for plans on the federal exchange through Thursday, and some states have extended their open enrollment through the end of the month.

But even if there are few new sign-ups, enrollment is still running higher than it was in 2024—when the sweetened subsidies were available. The 1.4 million decline in sign-ups compared to 2025 enrollment is also less than was predicted. The left-leaning Urban Institute projected that ObamaCare's subsidized enrollment would drop by 7.3 million.

The Congressional Budget Office's ObamaCare baseline in 2024 assumed 18.9 million people would enroll in plans this year if the enhanced subsidies vanished. The budget gnomes have repeatedly underestimated ObamaCare enrollment and spending; they need to rework their models.

Again, this was an estimate of what would happen in a few months, and predictions were way off. I've become skeptical of all long-term economic forecasts.

That background brings me to oral argument in Trump v. Cook. There are legal arguments for and against Cook's removal, but economists have also chimed into this case. They claim that allowing the President to fire Cook for alleged misconduct could lead to a recession! Justice Barrett even asked about this risk:

JUSTICE BARRETT: General Sauer, can I ask you a question that's also related to the stay factors? Justice Sotomayor brought up the public interest here, and we have amicus briefs from economists who tell us that if Governor Cook is --if we grant you your stay, that it could trigger a recession. How should we think about the public interest in a case like this?

Solicitor General Sauer responded that the stock market actually went up after Cook was fired, despite predictions of doom.

GENERAL SAUER: Yeah. Two --two things to say about that. One is, if you look at what actually happened here, she was removed on August 25th and the stock market went up for the next three days. So we've already had a kind of natural experiment, so to speak, about whether or not the predictions of doom will really be implemented. Surely, that if investors are jittery or whatever the argument is, you would have seen that on August 25th, and you did not see that. In fact, you have the surprised

Justice Barrett said that the Court should not be in the business of predicting markets.

JUSTICE BARRETT: Well, I'll interrupt you there to say that I don't want to be in the business of predicting exactly what the market's going to do.

Yet, that is exactly the premise of Barrett's question.

GENERAL SAUER: I agree. And that's why I think the Court ought to consider all those amicus briefs and their sort of, you know, predictions of doom with a fairly jaundiced eye. What the Court has to do is weigh -essentially, you have those amicus briefs as a reflection of very elite opinion, elite opinion that what's happened here

There is a focus on "very elite." Indeed, nearly every economist on planet Earth favors absolute independence of the Federal Reserve. Talk about a liberal asymmetry! But those dispassionate economists are not the duly-elected leaders of our nation.

Since Heller was decided nearly two decades ago, there have been attempts to draw analogies between the First and Second Amendment. Of course, this transplantation was always problematic. First Amendment doctrine is, for the most part, not originalist. The cases are laden with balancing tests that have little concern for original meaning. The entire notion of tiers of scrutiny is judge-made law. Why corrupt this new originalist frontier by transplanting the tainted soil of the Warren Court? Well, it is familiar, and judges do what is familiar. Still, it was a surprise when Bruen simultaneously repudiated balancing tests and looked to the First Amendment cases as a model.

In Wolford v. Lopez, the Court continued its interest with the First Amendment to resolve a Second Amendment case. And Chief Justice Roberts, usually not one for doctrine, was leading the charge.

In this exchange, Roberts seemed to analogize carrying a weapon's on someone's property to walking to someone's doorstep to drop off pamphlets.

CHIEF JUSTICE ROBERTS: Is there, under our law, an invitation, for example, for people solicitating, for people who want to drop off pamphlets about a particular -

MR. BECK: Yes, Your Honor, up until --up to the doorknob or --you know, there is.

CHIEF JUSTICE ROBERTS: Even though it's private property?

MR. BECK: Yes, Your Honor.

CHIEF JUSTICE ROBERTS: A stranger can walk off the sidewalk and go up to the door?

MR. BECK: Yes, up to the door, Your Honor.

CHIEF JUSTICE ROBERTS: Thank you.

In the wake of the Dobbs leak, this issue has been on the minds of the Chief and the other Justices. Back in the day, it was patriotic to advertise a Supreme Court Justice's address, and organize "peaceful" vigils outside the house where the Justices' young children live. But Roberts did not push back on Beck, because I think he recognized that there is a First Amendment issue at play.

Sarah Harris, the Principal Deputy SG, made a similar point in an exchange with Justice Gorsuch:

MS. HARRIS: I think, in the First Amendment context, you would say no big deal, you are now going from a world where candidates can go door to door and --for a campaign speech, but now you have to have a big sign in your yard that says political speech welcome for someone to go in. Or, in the Second Amendment context, Hawaii's same reasoning would lead to a rule that it's fine to ban tenants from owning guns in self-defense unless the landlord in the contract expressly consents to doing so. And I really think the concept that this is just tweaking consent elides the burden that Hawaii is imposing here of presumptively banning open carry, banning public carry.

Justice Barrett, who had to explain to her kids why she needed a bulletproof vest, may see the issue differently.

I often write about the audition trap: the irrefutable claim that a person is behaving a certain way in an attempt to obtain a higher office. This charge is often made against me. I do not read the comments on this blog or social media mentions, but I am reliably informed that those who disagree with me frequently assume that the only reason I can write what I write is as part of some effort to get some other job. Many people who write me often include a similar preface: I am not like the commenters, and think you are writing in good faith. But for my critics, the truth is scarier: I actually believe what I believe. If I was actually trying to obtain higher office, I wouldn't do most of the things I do. I certainly would not have resigned from the leading conservative thinktank on a point of principle. But people will never believe me. So be it.

I alluded to this point in my critique of the New York Times's failed attempt to quantify the Trump judges:

There are more than 50 circuit appointees. Do you think all of them are auditioning? I would not deny that some might be, but the vast majority of the nominees have no credible shot at promotion. Indeed, a law professor recently wrote on a listserve that Judge Jerry Smith's dissent in the redistricting case was an attempt to curry favor with Trump. Judge Smith is nearly 80 years old. We need to exit this audition trap. You cannot simply dismiss an argument by saying the judge is auditioning. The truth may be that the judges actually believe what they are writing. For the left, that truth is too hard to process, so they rely on the "auditioning" fiction.

Yet, I acknowledge and have written that for some people, their current job is merely an audition for their next job. And what do we make of these auditioners? Well, the argument goes, they will say what they need to say to get the job, and once they are in the job, they will do what they believed all along. This temptation is especially apt in positions with secured tenure.

President Trump addressed this point in Davos at the same time that the Supreme Court was considering his termination of Federal Reserve Governor Lisa Cook. Around the 56:00 minute mark, he discusses how auditioners say one thing during the audition and do something else once the audition is successful.

I'll be announcing a new Fed chairman in the not too distant future. I think he'll do a very good job. See, I gave away some of it. He did give that away. So, we have something. You got something. But somebody that's very respected. They're all respected. They're They're all great. Everyone that I interviewed is great. Everyone could do, I think, a fantastic job. Problem is, they change once they get the job. They do. You know, they're saying everything I want to hear. And then they get the job, they're locked in for six years. They get the job and all of a sudden, let's raise rates a little bit. I call them, "Sir, We'd rather not talk about this." It's amazing how people change once they have the job, but it's too bad. Sort of disloyalty, but they got to do what they think is right. We have a terrible chairman right now. Jerome too late Powell. He's always too late. And he's very late with interest rates except before the election. He was just fine for the other side. So, we we're going to have somebody that's great and we hope he does the right job.

I can imagine that Trump has had similar buyer's remorse about his appointees to the executive and judicial branches. Indeed, a nominees will never be more conservative and aligned with the President than on the day they interview with the President. Once confirmed, the leftward retrogression is inevitable.

Still, I think Trump is wrong to describe this phenomenon as disloyalty. That presumes the candidates were ever loyal to Trump in the first place. They weren't. Auditioners are truly loyal to themselves. Many of the most prominent auditioners decided at some point it would be strategically advantageous to become conservative, and proceeded accordingly. They look in the mirror and think that they are the best, and the indeed only person who can do the job. It is no surprise then that they should follow their own judgment once in the position.

This ambition is a permanent feature of human nature. But as Madison recognized in Federalist No. 51, the only check on ambition is ambition. In this regard, the process by which presidential appointments are made, and confirmed by the Senate, may be the best way to achieve Madison's ideal. Critically, during this process, auditioners with ambition will try to knock out other auditioners with ambition. It then falls to the President to decide which is the best nominee.

From the Jan. 8 decision of New York's intermediate appellate court in Deutsche Bank Nat'l Trust Co. v. LeTennier, written by Justice Lisa Fisher:

[D]efendant's opening brief cites six cases which do not exist. Plaintiff identified these fabricated cases as possibly being the product of artificial intelligence (hereinafter AI), and moved for an order seeking, among other things, sanctions against defendant and defense counsel. Defendant claimed the nonexistent cases were citation or formatting errors that he would correct in his reply brief, and then opposed the motion for sanctions with more fake cases and interpretations for existing cases that are at best strenuously attenuated, and at worst entirely inapposite.

Defendant's subsequent reply brief acknowledged that his "citation of fictitious cases is a serious error" and that they are "problematic," but failed to offer any corrections or further explanation as previously stated. He then proceeded to include more fake cases and false legal propositions in two subsequent letters to this Court that requested judicial notice of a bankruptcy stay. In examining the propriety of defendant's previously filed papers, more nonexistent cases were discovered in a motion that granted affirmative relief to defendant.

Defense counsel reluctantly conceded during oral argument that he used AI in the preparation of his papers and, although he told the Court that he checked his papers, the filings themselves demonstrate otherwise. In total, defendant's five filings during this appeal include no less than 23 fabricated cases, as well as many other blatant misrepresentations of fact or law from actual cases….

[Defendant] has also misrepresented the holdings of several real cases as being dispositive in his favor—when they were not. It is axiomatic that submission of fabricated legal authorities is completely without merit in law and therefore constitutes frivolous conduct. It cannot be said that fabricated legal authorities constitute "existing law" so as to provide a nonfrivolous ground for extending, modifying or reversing existing law….

[D]uring oral argument defense counsel estimated that 90% of the citations he used were accurate, which, even if it were true, is simply unacceptable by any measure of candor to any court. Where we are most troubled is that more than half of the fake cases offered by defendant came after he was on notice of such issue, whereby his reliance on fabricated legal authorities grew more prolific as this appeal proceeded—despite it being apparent to him that such conduct lacked a legal basis. Rather than taking remedial measures or expressing remorse, defense counsel essentially doubled down during oral argument on his reliance of fake legal authorities as not "germane" to the appeal….

AI in Court

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One of the most bizarre aspects of modern Second Amendment litigation is how supporters of gun control are forced to favorably cite Jim Crow laws. In all other contexts, these sort of anti-canonical statutes would be untouchable. Yet, when it comes to guns, all the usual rules go out the window. In Wolford v. Lopez, one of the leading authorities for Hawaii's law is an 1865 Louisiana statute. Neal Katyal described it as a "dead ringer" for the Hawaii statute.

During the oral argument, Justice Gorsuch was incredulous that Hawaii was relying on this shameful precedent. He asked Wolford's counsel if it was appropriate to rely on such a law to inform the nation's traditions.

JUSTICE GORSUCH: Your friends on the other side in the Ninth Circuit relied on two statutes in particular. One was the 1771 New Jersey law that you were just discussing with Justice Kagan. But the other one that was left unmentioned was an 1865 Louisiana statute that was adopted immediately after the Civil War as part of an effort, it appears, to disarm black people. A Reconstruction governor later explained that this law, of course, was aimed at the freedmen. Do you think the black codes, as they're called, should inform this Court's decision-making when trying to discern what is this nation's traditions?

MR. BECK: I do not, Your Honor.

JUSTICE GORSUCH: Well, your friend on the other side says it should and that the 1865 statute is a "dead ringer" for this statute.

MR. BECK: The 1865 law was expressly passed to discriminate against African Americans that were newly freed slaves. And I just don't see how a law like that can be used to be analogized to a modern-day law, this modern-day law, Your Honor.

Gorsuch had a similar question for Sarah Harris, the Principal Deputy SG:

JUSTICE GORSUCH: And then, lastly, there's been some discussion about the black codes, and maybe they should be relevant and maybe we really should consider them as significant here. In fact, they're a dead ringer. Thoughts?

MS. HARRIS: It is 2026 and it is somewhat astonishing that black codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible firearm regulation looks like. Those laws are dead ringers only in the sense that this law too is an unconstitutional pretext. The black codes were offered, as you mentioned, by states before their readmission to the union. It is not an indictment of the Bruen framework to say that unconstitutional laws do not count in illuminating a valid tradition.

Yet, Justice Jackson tried at great length to explain why the Black Code statute was relevant. First, Jackson tried to suggest that disregarding the Black codes undermines the Bruen test, which looks at all traditions.

JUSTICE JACKSON: Let me just ask you about the black codes. Justice Gorsuch raised it. And I guess what I'm wondering --your answer to him was they can't be and shouldn't be used. And I guess I'm wondering whether that doesn't signal a problem with the Bruen test, that to the extent that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account, I --I think there might be something wrong with the test. So can you speak to that?

MR. BECK: There's nothing wrong with the Bruen test, Your Honor. Just on a fundamental level, the black codes can't be used because they dealt to discriminate against a small -

Second, Jackson said that Beck's approach would ignore the lived experience of those who were subject to Black Codes.

JUSTICE JACKSON: To --to people other than the people in this small segment that you're talking about, who were a part of society, but I guess you're saying that for the purpose of this test, we're not going to consider what happened to them?

MR. BECK: No. What I'm saying is that the --the black codes dealt with a very --it wasn't a law of general applicability. It was designed to discriminate against --it was a racist law designed to iscriminate against African Americans, whereas, here, the law at issue here is a law that applies to everyone. We can't use a racist, discriminatory law to justify a modern-day law that applies to the general public, Your Honor.

That was not at all Beck's point. A blatantly unconstitutional law cannot form part of the tradition for purposes of Bruen.

Jackson offered similar questions for Harris:

From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by the leading media lawyer Floyd Abrams (Cahill Gordon & Reindel LLP), who has argued over a dozen First Amendment cases before the Supreme Court:

As we approach the fiftieth anniversary of Buckley v. Valeo, I'm reminded of a comment made by Joel Gora, who argued the case for Senator Buckley and Senator McCarthy. He correctly observed that many academics have treated Buckley as a "stain."

This characterization is as unfortunate as it is wrong. For those of us who believe that political speech deserves the highest level of First Amendment protection, Buckley remains not a stain but a shield—one that has protected the fundamental right of Americans to influence their government through both speech and spending.

The decision has wobbled, certainly. It has been criticized from both the left and the right, with some believing it went too far in protecting speech and others convinced it didn't go far enough. But through five decades of assault, Buckley endures, and with good reason: at its heart lies a principle so fundamental to our democracy that even its critics struggle to refute it entirely.

Free Speech Buckley v. Valeo at 50

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Many jurisdictions have mechanisms to block self-represented filings by "vexatious litigants"—people who file many unfounded lawsuits. California, for instance, provides that if someone has lost five self-represented cases in the preceding seven years, he or she can be put on a vexatious litigant list. If they are on this list, then courts must screen their filings to see if there is a "reasonable probability that the plaintiff will prevail in the litigation."

Once they're on the list, any new filings of theirs may be screened by a court to see if there is a "reasonable probability that the plaintiff will prevail in the litigation." Depending on the circumstances, a court that finds no such reasonable probability may dismiss the lawsuit, or may require a plaintiff to put up a bond that would compensate the defendant if the plaintiff indeed eventually loses. (I oversimplify things slightly here.) This scheme is an attempt to balance the interests of plaintiffs in making their claims, including without a lawyer, with the interests of defendants in not having to face frivolous lawsuits and the interest of the public in not having courts clogged with frivolous lawsuits. For more on this, including why such rules are constitutional despite the Petition Clause, see, e.g., Wolfgram v. Wells Fargo Bank (Cal. App. 1997).

Like so much in our civil justice system, the primary responsibility for spotting vexatious litigants falls on their adversaries. A defendant who is sued may check whether the plaintiff is on the vexatious litigant list—but even if the plaintiff isn't on the list yet, the defendant may search to see whether plaintiff has filed and lost the requisite number of self-represented cases in the requisite number of years. The defendant may also more broadly see what the plaintiff has done in past cases, to see if the plaintiff might be identifiable as a vexatious litigant on other grounds, for instance a pattern of frivolous filings.

But all this presupposes that the defendant can find the plaintiff's past cases—and that becomes vastly harder to do if the plaintiff has litigated the past cases under a pseudonym. Courts have remarked on this in the past, and the Dec. 23 decision by Judge Noël Wise (N.D. Cal.) in Doe v. Clerk of Superior Court, just posted on Westlaw, helps illustrate this:

Free Speech Right of Access

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From Kelleher v. Town of Brookfield, decided earlier this month by Judge Brian Murphy (D. Mass.):

In 2023, while serving on the Brookfield Board of Health with Defendant Lepak, Plaintiff filed an Open Meeting Law complaint alleging that the Board of Health had published insufficient and inaccurate meeting minutes. The Massachusetts Attorney General agreed and ordered that the minutes be revised. According to Plaintiff, this was the inciting incident for an ongoing course of retaliatory conduct by Lepak against him. Defendant Simons now serves on the Brookfield Board of Health….

Plaintiff served Brookfield and Defendants Lepak and Simons with a "final [Americans with Disabilities Act ("ADA")] notice of lawsuit." "The next day, Plaintiff emailed Town officials to withdraw from all public meetings, citing safety concerns after a reported threat involving a FedEx driver and two high ranking [Brookfield] officials."

The following day, … each of the Individual Defendants applied for harassment prevention orders against Plaintiff …. "Within days," Plaintiff created and distributed flyers criticizing two of the Individual Defendants, Campbell and Lepak, who had just sought harassment prevention orders against him. Campbell thereafter sought an emergency harassment prevention order against Plaintiff, which was temporarily granted on an ex parte basis….

[T]he East Brookfield District Court held a hearing and granted the requests for harassment prevention orders. Prior to that hearing, Defendant Lepak requested and obtained a letter in support of her application from an individual who had made similar harassment allegations against Plaintiff. Plaintiff alleges that this letter "contained numerous false statements of fact," intended to defame him, and that it moreover contained quotes "lifted from [a] confidential ADA accommodation request, dated April 25, 2025, which was sent to Town officials and counsel," which the letter "mischaracterized … to portray Plaintiff as unstable and dangerous." Plaintiff further alleges that Defendant Lepak has elsewhere "published multiple false and defamatory statements about Plaintiff" in official communications, in the minutes of public meetings, on social media, and to the public.

Free Speech Defamation

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This is the third in a series of five posts discussing our recent article in the BYU Law Review on Title VII's religious employer exemption.

In the last post we explained how a textualist reading of the religious employer exemption shows that the exemption applies when a religious employer confines employment to people who fit the employer's religious observances, practices, and beliefs. In this post we explain how that textualist reading resolves a long-running circuit split.

For decades, federal circuits have been divided over the proper interpretation of Section 702. On one side of the split are the Third, Fourth, Fifth, Sixth, and Eleventh Circuits. They read the exemption as authority for religious employers to choose employees who observe religious standards of conduct. On the other side is the Ninth Circuit. It reads the exemption as a narrow co-religionist privilege allowing religious employers to restrict employment to individuals who are nominally members of the employer's faith, but nothing more.

Little v. Wuerl, a Third Circuit decision, illustrates the majority approach. There, a former employee brought an employment discrimination claim against a Catholic school for declining to renew her contract after she remarried without following the "proper canonical process available from the Roman Catholic Church." The Third Circuit closely reviewed Section 702 and concluded that Congress intended the exemption "to enable religious organizations to create and maintain communities composed solely of individuals faithful to their doctrinal practices." So understood, Section 702 permitted the school to discharge an employee who had "publicly engaged in conduct regarded by the school as inconsistent with its religious principles."

R. Shawn Gunnarson is a shareholder in the Kirton McConkie law firm, where he is a member of the Appellate, International, and First Amendment and Religious Organizations sections.

James Phillips is an academic affiliate at Schaerr Jaffe LLP, the author of over 30 law review articles, and a fellow of the Public Law and Policy Program with the UC-Berkeley School of Law.

Religion and the Law

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1/21/2010: Citizens United v. Federal Election Commission decided.

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On Tuesday, the Supreme Court heard argument in Wolford v. Lopez. Most Second Amendment cases focus on who can carry arms or what kind of arms they can carry. But Wolford focuses on where people can carry. Heller and its progeny held that carry can be prohibited in certain "sensitive places." But Wolford goes beyond that rubric. Hawaii law provides that for businesses that are generally open to the public, affirmative permission must be granted to carry a firearm. This permission can be granted through a posted sign or oral consent.

One fascinating aspect of the argument focused on tradition. Is it the tradition of the nation? Or is it the tradition in Hawaii? The history of Hawaii, which was admitted to the Union in 1959, makes it somewhat unique. Until Bruen, there was no custom of carrying weapons in Hawaii.

During several colloquies, Justice Sotomayor insisted that the Court should focus on the local tradition in Hawaii. She favorably cited Justice Holmes's opinion in McKee v. Gratz (1922). If your best authority is a Holmes opinion from 1922, you are probably on a shaky footing.

Sotomayor pushed the point about Hawaiian tradition:

JUSTICE SOTOMAYOR: Nothing about Hawaii's customs, tradition, or culture creates an expectation that the general public carries guns wherever they go, correct?

Alan Beck, counsel for the plaintiffs, responded that the local customs do not matter.

MR. BECK: Hawaii is part of the United States, and as part of the United States, our national tradition is that people are allowed to carry on private property that is open to the public.

Then there was some cross-talk, without any clear resolution.

MR. BECK: As --Hawaii is part of the United States, Your Honor, and as the -

JUSTICE SOTOMAYOR: But, if it's a local custom that controls -

MR. BECK: It is not a local custom that controls.

JUSTICE SOTOMAYOR: I --I -

MR. BECK: It is the custom -

JUSTICE SOTOMAYOR: Where else in the law have we permitted local custom to create a constitutionally protected right?

MR. BECK: Bruen was very clear here that we're dealing with our national tradition, Your Honor. It is not local custom that controls in this area of law.

I think Beck is right. Perhaps this question can be understood in terms of the equal footing doctrine. When territories enter the republic as states, they enter on equal footing to the original thirteen colonies. But with that great power comes a great responsibility. Those new states are now subject to the same national traditions that bind all of the prior states. This approach may be inconsistent with modern conceptions of multiculturalism, but out of many states comes one republic.

Sarah Harris, the Principal Deputy SG, offered a similar response to Justice Sotomayor.

JUSTICE SOTOMAYOR: Just as here, where most property owners for 200 years didn't carry weapons in this state without an owner's consent. That's the presumption of the Hawaiian people.

MS. HARRIS: So two points on that, one with respect to the presumption of the Hawaiian people. As Petitioner notes, there is no Second Amendment for every single state in the union that's different. It is a national tradition, and states cannot retain their pre-statehood traditions as sort of a --a veto for the Second Amendment national tradition.

Perhaps we could push the localism question a bit further. Why should the tradition be confined to the state? Why shouldn't an urban area like Manhattan have a different custom than rural areas in upstate New York?

In one of my first law review articles, The Constitutionality of Social Cost, I asked whether the Second Amendment has a "geography clause"--a term I coined in a 2009 blog post. Here is an excerpt from my 2011 article from the Harvard Journal of Law & Public Policy.

Does the Constitution have a geography clause? This section explores whether the Second Amendment is a national right or a local right that can be limited based on circumstances, such as high crime. Proponents of the geography clause argument fall into two camps. First, Justice Stevens in McDonald contended that the Second Amendment as applied against the States should provide weaker protections than the Second Amendment as applied against the federal government.225 Justice Alito adequately rebutted this erroneous application of Justice Brandeis's laboratories of experimentation thesis and Justice Harlan II's never accepted incorporation jurisprudence.226 The other theory, advanced by Justice Breyer, contends that local municipalities should be able to consider whether an area has a high crime rate when construing the meaning of the Second Amendment.227 Although Justice Alito rejected Justice Stevens's two‐track approach to incorporation, he leaves open the door for localities to devise solutions to social problems that "suit local needs and values" according to certain limitations.228 This section considers the First and Fourth Amendments, which countenance locational rights that can vary based on location, and distinguishes those frameworks from the approach Justice Breyer seeks.

I thought Bruen emphatically rejected this argument that the meaning of the Second Amendment can very in different parts of the country. But apparently this issue is still up for debate.

Finally, I was amused by a comment from Chief Justice Roberts. He noted that Hawaii also has a very different tradition with respect to property rights.

CHIEF JUSTICE ROBERTS: Right. But let me just switch gears a little bit. You talked about the tradition in --in Hawaii. Hawaii, given its obvious origins and its --its admission to --to the United States fairly recently, has a totally different, in some areas, tradition and practice. The law of property in particular in Hawaii, I mean, for the longest time, maybe it's still the case, is that you don't own property, you get it on long-term lease as if you were, you know, a bank in a skyscraper in New York. That was the common method. And I wonder, I thought, you know, as mentioned earlier, it is part of the United States. And do we isolate, do we have different traditions in different states when it comes to applying Bruen?

Perhaps the Chief was thinking of Hawaii Housing Authority v. Midkiff (1984), which was decided three years after he clerked. If the Court is ever interested in overruling some more precedents, Midkiff, along with Berman v. Parker and Kelo v. City of New London, should make the list.

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