The Volokh Conspiracy Archive

Last month, over at Law & Liberty, Steven Hayward initiated a conversation on the need for a "new environmentalism" and what it should look like. To close out the conversation, Hayward has responded to comments on his initial essay offered by Richard Morrison, Allan C. Carlson, and yours truly.

Hayward's whole responsive essay is worth a read, but I though I would highlight the portion that responds to my comments (and not just because it is flattering).

Jonathan Adler's contribution makes some of my arguments better than I do, which is no surprise, since I have two rules about anything Adler writes in this domain: 1) Never disagree or argue with Adler; 2) If you disagree with Adler, see Rule Number 1. There is one aspect of his reflections I want to amplify—the political malpractice of most conservatives and Republicans on environmental policy. He does not put it quite that bluntly, but I will. Back in 1970, National Review editorialized that "it would be political suicide to concede [the environment] to the Left." Allowing the environment to become a near-monopoly of the left hasn't quite been suicidal for conservatism, but it has been bad for … the environment.

Here, the nub of the problem is a non-sequitur unique to conservatives. It has become the default position to reason that because we dislike costly and centralized bureaucracy, environmental problems must therefore be phony, or even a "hoax." To be sure, many environmental problems have been overestimated or deliberately exaggerated, from acid rain, deforestation, soil erosion, resource depletion, bee colony collapse, various toxic threats, the population bomb, etc., but that does not mean they are phony or insignificant. And the environmental policy record of most Republican Administrations is quite good, only Republicans seem not to know this or how to talk about it (or usually both). The environment for Republicans is like national defense for Democrats—an issue they don't like, study, or make a policy priority.

As Hayward notes, there are occasional signs that some within the Republican Party recognize this problem, but there has yet been no sustained effort to provide a meaningful (let alone principled) alternative approach to environmental protection, and this a problem.

Last week, former Attorney General William P. Barr wrote an op-ed for the Wall Street Journal purporting to expose a nefarious effort to impose a carbon tax through tort litigation. His op-ed is part of a broad effort to convince the Supreme Court to grant certiorari in Suncor v. County Commissioners of Boulder County, a tort suit filed against fossil fuel companies seeking compensation for the costs of adapting to climate change.

Today, the WSJ published my letter to the editor replying to Barr's op-ed, in which I noted there is nothing scandalous in what Barr reports, and that his underlying legal claims are without merit. As readers may recall, I have sparred with Barr on this subject before (see here and here).

In his op-ed, Barr reports that an attorney who has supported and assisted the filing of state-law-based tort claims by state and local governments against fossil fuel companies noted on a Federalist Society teleforum that, if these suits are successful, they would impose a de facto carbon tax. Barr treats this a scandalous confession. It is nothing of the kind. It is, rather, what everyone understands about the nature of tort suits.

When torts suits against firms that manufacture or distribute a product are successful, the liable firms inevitably seek to pass those costs on to consumers in the form of higher prices. Supporters of tort reform assail this "tort tax" as a burden on consumers and entrepreneurs. Others view it as means of internalizing externalities and ensuring that consumers pay for the full costs of what they consume. Anyone who is surprised that this dynamic would recur in the context of climate litigation is simply not well-versed in the economics of tort law.

In his op-ed, Barr does not seek to argue that it would be inappropriate to hold fossil fuel companies responsible for the costs of climate change to local communities--costs that include the affects on infrastructure and climate adaptation efforts. Instead he tries to argue that such suits are preempted by federal law, and in the process makes a legal error.

Barr writes:

Can states regulate emissions that take place outside their borders?

More than a century of Supreme Court precedent indicates that the answer must be no. Disputes involving pollution that crosses state or international borders are the exclusive domain of federal law.

Barr is simply wrong on this point, and he should know it as I have corrected him on this point before. Under current law, suits seeking redress for harms caused by interstate pollution can be filed under state law; they are not "the exclusive domain of federal law."

As I have explained at length, the Supreme Court has held that federal common law suits over interstate pollution are displaced by federal pollution control statutes. This is because federal common law is disfavored and is deemed to be displaced once Congress enacts a relevant statute. Displacement is different from preemption. And the Supreme Court has also held, most explicitly in International Paper v. Ouellette that state law suits over interstate pollution are not preempted and may proceed, provided that courts apply the law of the upwind or upstream state.

In the case of climate change, there is nothing in the Clean Air Act that preempts state regulation or or litigation over greenhouse gases and the potential harms of climate change. Indeed, there is nothing in the CAA that was enacted with an eye toward preventing climate change at all. And with regard to the types of air pollutants upon which the CAA was focused--ozone precursors, particulates, etc.--the CAA contains a broad savings clause and does little little to preempt state regulation or litigation, save for select provisions focused on the regulation of certain products sold in interstate markets (such as automobiles). Congress could preempt such suits if it wanted to, but it has never done so.

There are serious arguments that the various climate suits should fail on traditional tort law grounds, perhaps because the chain of causation is too attenuated or too difficult to prove, or that there are constitutional limits on the scope of conduct that can be subject to liability in state courts consistent with Due Process and the Dormant Commerce Clause. And there may well be an argument that the Supreme Court should intervene should a state court award universal relief to a local jurisdiction for the accumulated effects of global greenhouse gas emissions that exceeds such limits. But these are not the claims that Barr is making. Rather he is asserting that federal law precludes state courts from even hearing these claims, and he is misstating the law in the process.

For a deeper dive into the debate over this question, I recommend this panel from last year, "A Debate on The Right — Climate Lawsuits and Federalism: What Is the Role of State Tort Law?", in which I debated several thoughtful commentators on this subject.

For more on the subject, here are my prior posts on climate-related tort litigation:

Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted, Oct. 27, 2021;
Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022;
Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023;
Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023;
D.C. Circuit Rejects Oil Company Attempt to Remove District's Climate Suit to Federal Court, Dec. 19, 2023;
William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023;
Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024;
Are State Law Climate Change Tort Suits Preempted by Federal Law?, May 3, 2024;
Supreme Court Denies Certiorari in Climate Tort Suits, Jan. 13, 2025;
Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits, Mar. 10, 2025.

And here (again) is my longer paper on the subject.

A short excerpt from today's >17K-word decision by Judge Sarah Russell (D. Conn.) in Arroyo-Castro v. Gasper:

The dispute centers around whether Ms. Castro [a New Britain schoolteacher] has the right to affix an approximately foot-high crucifix to the wall near the teacher's desk in a classroom of a public middle school….

The parties do not dispute that the crucifix display on the classroom wall is "speech" within the meaning of the First Amendment. At issue is whether the crucifix display is protected speech. When "a public employee speaks 'pursuant to [his or her] official duties,' … the Free Speech Clause generally will not shield the individual from an employer's control and discipline because that kind of speech is—for constitutional purposes at least—the government's own speech." Kennedy v. Bremerton Sch. Dist. (2022) (quoting Garcetti v. Ceballos (2006)). Here, Ms. Castro's job duties specifically included decorating the classroom walls to make the physical classroom environment conducive to student learning. Under these circumstances, based on the existing evidentiary record, I conclude that Ms. Castro acted pursuant to her official duties when she posted items on the classroom wall that students would see during instructional time.

The classroom wall decorations are thus speech pursuant to Ms. Castro's official duties and subject to the District's control. For these reasons, I conclude that Ms. Castro is unlikely to prevail on the merits of her free speech and free exercise claims and is not entitled to the extraordinary remedy of a preliminary injunction….

Recall that the First Amendment protects a government employee's speech from being restricted by the employer if

The Hoover Institution at Stanford University, where I'm now a Senior Fellow, has long offered up-to-5-year paid in-residence positions (with no teaching obligations) in various fields.

This year, we'll also be considering people who are interested in becoming legal academics. We expect the selection process to be highly competitive: The position is unusually generous, compared to other fellowships, in salary ($165K-230K/year plus a $20K housing allowance), potential length, and lack of teaching obligations.

To be realistically eligible, applicants should have clerkships, top grades, published law review articles, and plans for new articles. It seems likely that most applicants will be from the Usual Suspect academic feeder law schools, but I'm a UCLA law graduate myself, so I'm certainly open to top people from other schools as well. We have no particular preferences for any particular fields within law: We'll gladly consider people who want to work in business law, constitutional law, international law, criminal law, immigration law, and all sorts of other topics.

The application deadline is Nov. 18, and the details are at https://www.hoover.org/hoover-fellows-program. Note that there would be no obligation for people to stay the full five years (and probably an expectation that they would stay no more). If someone gets a tenure-track law school teaching position two or three years into the fellowship—which tends to be the norm in the law market—we would be delighted to see them take it.

This new article is here. The Introduction:

Free speech absolutism has seemingly had its day, inasmuch as scholarly and public (if not judicial) opinion are increasingly hostile to the idea that more speech is invariably better. Yet, within academia, a close cousin of free speech absolutism—a principle of university management that this Article calls extramural absolutism—remains alive and well. Many academics and their supporters still champion the idea behind this principle, which is that speech undertaken by professors who are acting in a personal capacity should invite few if any adverse employment consequences. Academic disagreement with the principle, when it arises, lies more in its application to specific incidents than with the principle itself.

But extramural absolutism is deeply unpopular outside academia as well as among many stakeholders inside the university community. This Article explains extramural absolutism's unpopularity and proposes a way forward. The problem, I argue, is not with extramural absolutism itself but with how it is presented and justified. The answer, moreover, is not to insist on distinguishing between speech that warrants protection and speech that does not: It is to acknowledge that academic labor and the way it is managed make a policy of extramural absolutism the only feasible approach.

Supporters of extramural absolutism have failed to be convincing for two reasons. First, they often imply that speech by academics merits an exceptional level of protection because academic speech is uniquely valuable to society. In this respect, they are like supporters of academic freedom writ large. "[T]he pursuit of truth without interference," argue William Tierney and Vicente Lechuga in their defense of academic freedom, "is in the best interest of society." Similarly, Matthew Finkin and Robert Post affirm the AAUP belief that universities are "instruments of the common good" and that the "roots of academic freedom" have "internal connections to emerging needs for knowledge and intellectual mastery."

These lines of commentary presume a shared belief that academic speech is uniquely valuable because expert knowledge and expert pedagogy are better than their opposites. That is, academic speech deserves special protection because it contributes more to societal well-being than do other types of speech or speakers: Academic speech informs, instructs, challenges, and clarifies in addition to expressing opinion.

Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O'Connor College of Law (ASU)
and the Hoover Institution (Stanford University)

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that's already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O'Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors' trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.

11/3/1845: Chief Justice Edward Douglass White's birthday.

[UPDATE: In retrospect I buried the lede here. On motion to dismiss, the court found that social media postings regarding a synagogue event did not violate the FACE act because they do not constitute a "true threat," because using the phrase "no Justice no peace" was not alleged to lead to violence.

As I point out at end of the post, the operative question under the FACE act at the motion to dismiss stage, at least arguably, is whether the posting in question sufficiently threatening to intimidate synagogue goers, and that seems a much closer question. The court did not address the First Amendment at all in its opinion, so the issue of "true threat," which is a First Amendment, not a FACE act doctrine, was not obviously present at this stage of the litigation.]

As Eugene noted previously, a federal district court dismissed a FACE act claim for threatening synagogue attendees against the Palestinian Youth Movement based on the following social post:

The PYM social media posts call on their supports to "STAND AGAINST SETTLER EXPANSION AT SUNDAY'S REAL ESTATE EVENT SELLING HOMES TO BUILD 'ANGLO NEIGHBORHOODS' IN PALESTINE." The post continues by describing the Aliyah Event as a "blatant example of land theft" perpetrated by "[r]acist settler expansionists." The posts finish with "FROM THE BELLY OF THE BEAST NO JUSTICE, NO PEACE." Plaintiffs allege, "upon information and belief," that the phrase "belly of the beast" refers to a synagogue.

The court stated that the wording of this posting was too vague to constitute a true threat: "there are no allegations that phrases like 'no justice, no peace' or 'belly of the beast' have led to violence. Without that kind of context or history, there is no basis to infer that these posts are true threats."

I don't know what was alleged in the complaint, but I wonder if the relationship between the phrase "no justice, no peace" and violence is sufficiently attenuated that this issue was proper for disposal on the a motion to dismiss, where all factual allegations alleged by plaintiffs are presumed to be true.

On the one hand, "no justice, no peace" is often chanted at entirely peaceful rallies and in such contexts serves, as the court concluded, as advocacy of protest. On the other hand, the "no peace" half of the phrase does literally seem to call for violence, not merely protest, and it's not hard to find examples where this phrase was chanted just before or during violent riots. That's why you get headlines such as, 'No justice, no peace': 7 people shot amid downtown Louisville protests for Breonna Taylor.

Of course, the court is correct that it's likely that this slogan does not lead to violence, as opposed to being chanted by those already poised for violence.

The FACE Act makes it illegal "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship."

So the right question, it seems to me, is not whether using the phrase "no justice, no peace," will likely lead to violence, but whether it constitutes a threat of force sufficient to intimidate reasonable worshippers.

Originally posted at Balkinization for a symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

John Fabian Witt's The Radical Fund masterfully reconstructs the history of the American Fund for Public Service, better known as the Garland Fund. The Fund embodied both the promise and the peril of radical philanthropy in the United States between World War I and World War II. Conceived by Roger Baldwin and financed by Charles Garland's relatively modest inheritance, the fund set out to support "pioneering enterprises" capable of advancing democracy and social justice (105–109). Yet the very inclusiveness that defined its mission proved to be its undoing. Its openness blurred essential distinctions between liberal reform and revolutionary activism, particularly the illiberal strains of the latter promoted by American Communists who followed secret directives from the USSR.

Witt portrays the fund's dual identity with care. Its experimental commitment to supporting every left-leaning cause was both its greatest strength and its central weakness. Baldwin, a founder of the ACLU and self-described "philosophical anarchist," viewed the fund as a "gamble in human nature," a bold experiment in social change. He and Garland believed that existing institutions were malleable and that private wealth could be redirected to benefit the working class and expand civil liberties (1–4).

Baldwin assembled an extraordinary and eclectic board that included jurists such as Felix Frankfurter, journalists like Freda Kirchwey, labor organizers such as Sidney Hillman and Elizabeth Gurley Flynn, and one Communist, William Z. Foster. The fund's early grants to the ACLU, the NAACP, and Brookwood Labor College reflected its founders' belief that progress could be achieved through education, litigation, and peaceful organizing. Baldwin described this as a "mixture of forces" spanning the full left-liberal spectrum of American politics (4).

The same inclusiveness that initially energized the fund soon produced deep internal tensions. Baldwin, though willing to include a Communist perspective, recognized the Party's tendency to dominate institutions and warned that "one Party member on the board was enough" (234). When Foster tried to send proxies to board meetings, they were turned away. As late as 1926, Baldwin sought to strengthen the anti-Communist faction within the board. In retaliation, the Party derided the fund as "counter-revolutionary" and mocked Baldwin and Socialist leader Norman Thomas as "a terrible bunch" (233–234).

Despite Baldwin's efforts, Communist influence proved difficult to contain. The fund's commitment to pluralism left it vulnerable to what the Party itself described as "boring from within" (234). By the mid-1920s, as liberal unions weakened under employer pressure, Baldwin feared that disciplined Communists might be the only radicals still capable of organizing workers effectively. The situation grew more complicated after Baldwin's 1927 visit to the USSR, where he succumbed to Soviet propaganda and wrote an absurdly glowing book called "Liberty Under the Soviets" before later resuming his criticism of Soviet repression.
Read More

11/2/2010: Brown v. Entertainment Merchants Association argued.

Jodi Kantor continues her series of articles with inside scoops about the Supreme Court. In the past, I've been critical that she has focused only on the Court's conservatives. To her credit, Kantor has done a deep dive on the Court's three progressives. Much of what she wrote is consistent with things I've gleaned from listening to oral argument and reading opinions. But there is some new stuff .

First, the Court installed some kind of tracker into the bench to indicate how much time each Justice speaks for.

At oral arguments, she has taken up far more speaking time than her colleagues, even though the court several years ago tucked timers into the justices' imposing wood table to tally each of their ticking minutes, according to several people familiar with the devices.

How did we not know about this?! How does this system even work? My best guess is that the timer starts ticking when a Justice's microphone is being used. Are these digital timers or analog timers? Did the Chief Justice have these installed during the pandemic so the Justices could keep track of time during the seriatim rounds? Its seems obvious enough that the Justices have zero impact whatsoever on how long the Justice speak for. I want a picture of these devices!

Second, we learn that Justice Jackson apparently reads prepared statements during the conferences:

Now, in private Supreme Court conference meetings, she tended to go on longer than the other justices, sometimes reading from statements she had prepared in advance. Some of the other justices became annoyed by how much airtime she consumed there and during oral arguments, according to both liberals and conservatives who heard the complaints.

Justice Douglas would complain that Justice Frankfurter made 50-minute long statements at conference, since that was the length of a Harvard Law School class. I do not know if Frankfurter brought prepared statements.

Third, Kantor confirms the compromise in Masterpiece Cakeshop:

In 2018, the court sided with a Colorado baker who had refused to create a wedding cake for a same-sex couple. The result looked like a loss for gay rights. But Justices Kagan and Breyer had helped persuade Justice Kennedy to rule on grounds so narrow they neutered the decision, according to people familiar with the proceedings. The baker won — but the results could not be applied to any other case.

Masterpiece Cakeshop was a 7-2 vote. It seemed clear enough that Justices Kagan and Breyer went along with Justice Kennedy's super-narrow decision on the Free Exercise Clause, to avoid a ruling on the Free Speech Clause. Of course, 303 Creative blew up that narrow holding.

11/1/1961: Planned Parenthood League of Connecticut opens center in New Haven, CT.

"Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." An ''emanation'' refers to a ray of light. During a lunar eclipse, the ''umbra'' refers to the darkest part of the shadow formed when the Earth orbits between the sun and the moon. The ''penumbra'' refers to the lighter part of the shadow, where some of the ''emanations'' from the sun are visible.

Eugene has already blogged about Stand With Us v. MIT, a recent case in which the First Circuit Court of Appeals upheld the dismissal of a hostile environment claim against MIT brought on behalf of Jewish students.

Eugene's post focused on the question of whether a university can be required to suppress speech intensely hostile to Israel and/or Zionists to avoid hostile environment liability. The court said "no," Eugene approves, and as a general matter, I agree.

However, the, court went well beyond that holding, into what I consider bizarre, obviously incorrect legal reasoning. I was particularly struck by this passage:

Our conclusion that plaintiffs have failed to allege actionable racial harassment consists of three parts. To begin, most of the conduct about which plaintiffs complain is speech protected by the First Amendment, and we do not construe Title VI as requiring a university to quash protected speech. Furthermore, by gathering together in groups on campus, disrupting campus tranquility, and impeding travel for many students, the protestors did not render their speech antisemitic, much less unprotected.

Wait, what? Of course, the fact that the students broke MIT rules by, e.g., occupying parts of buildings and building an illicit encampment ("disrupting campus tranquility" and "impeding travel for many students") did not render related protected speech unprotected. But the actions themselves were unprotected, right?

Not according to the court. Here is the key passage:

Here, the student protestors engaged in speech on a matter of public concern -- the conflict in Gaza -- while on the campus of a private university in which they were enrolled. MIT chose to restrict that speech in part and allow it to continue in part. Now, plaintiffs seek to hold MIT liable, under a federal statute, for its failure to curtail that speech even further.

The theory seems to be that if students were breaking campus rules, and the law, on a private campus while engaging in a protest, that their protest nevertheless constituted protected speech activity unless and until the private university, MIT, ordered them to stop.

That doesn't make any sense to me. Let's say a group of protestors converge on the public sidewalk at the corner of my block, engaging in protected speech. Then, a subgroup of them peel off, and camp out in my driveway, and chant slogans there. For whatever reason, I choose not to ask them to leave my property, nor do I call the police--but I also don't tell them they are permitted to stay. The protestors are still breaking the law, and their "speech," i.e., their protest on my lawn, is not protected by the First Amendment. Read More

From today's order in In re Noem (7th Cir.):

After the district court issued a temporary restraining order affecting some aspects of immigration-law enforcement in the Chicago area, the judge on her own motion entered a further order requiring Gregory Bovino, a Chief Patrol Agent at U.S. Customs and Border Protection, to appear in court at 5:45 p.m. every weekday "to report on the use of force activities for each day." The judge justified this order by stating that she had seen videos that led her to question whether the TRO was being obeyed. The order was not, however, a response to any motion by counsel for the plaintiffs (and the videos to which the judge referred apparently do not deal with behavior involving any of the plaintiffs).

The federal defendants seek a writ of mandamus with respect to this aspect (and only this aspect) of the district court's rulings. We issued a stay of the order requiring Chief Bovino to appear and report daily, and we now GRANT the petition for mandamus.

While this litigation presents very challenging circumstances, the district court's order has two principal failings. First, it puts the court in the position of an inquisitor rather than that of a neutral adjudicator of the parties' adversarial presentations. Second, it sets the court up as a supervisor of Chief Bovino's activities, intruding into personnel management decisions of the Executive Branch.

These two problems are related and lead us to conclude that the order infringes on the separation of powers. Review by appeal at the end of the case would not solve the problems created in the interim, which justifies review by a prerogative writ. See In re Commodity Futures Trading Commission, 941 F.3d 869 (7th Cir. 2019). Cf. Cheney v. United States District Court, 542 U.S. 367 (2004).

Thanks to Glenn Reynolds (Instapundit) for the pointer.

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

At SCOTUSblog, IJ's John Wrench tells a tale of white coats and black robes: How a 1927 eugenics-era decision warns against swapping judicial scrutiny for "medical consensus"—and how that lesson could shape a free speech case at the Supreme Court.

If you were to break into the National Archives, these days you'd see a sad, though sadly inevitable sight: While portions of the Constitution are still bold and easy to read, the words of the Declaration are fading. Anyhoo, over at the Home of the Brave, IJ's Anya Bidwell and Patrick Jaicomo say that our Founding ideals are under threat.

New on the Short Circuit podcast: Is sharing your password at work a federal crime?

Is the noble tomato fruit or vegetable? Is the bat bird or beast? Is the warden of the Donald W. Wyatt Detention Facility in Central Falls, R.I., acting under color of state law or federal? First Circuit: On that last vexing question, we hold that it's at least plausible the warden was acting under color of state law. So a former detainee's Section 1983 suit against him may proceed.
Puerto Rican utility officials don't like town's mayor, so for years they decline to provide the town with potable water, even though residents pay for it. The utility blames infrastructure issues but no steps are taken to upgrade; during one shutoff, water is restored by simply flipping a few switches at the water treatment plant. District court: Troubling! But political retaliation is a First Amendment issue, and these residents brought due-process claims. First Circuit: These allegations are conscience shocking. Case undismissed. Read More

From Helmann v. Codepink Women for Peace, decided June 13 by Judge Stephen Wilson (C.D. Cal.), but just posted on Westlaw; I blogged earlier today about a different facet of the case, which allowed a threats claim to go forward against CodePink for its social media posts, but the court also rejected the claim against the Palestinian Youth Movement for its posts. First, the background:

This case arises out of the events that took place at the Adas Torah [Orthodox] Synagogue … on June 23, 2024 … in Los Angeles's Pico-Robertson neighborhood.

On June 23, 2024, the Synagogue held its usual religious services: a morning, afternoon, and evening prayer. That same day, the Synagogue also hosted a special "Aliyah Event," where a real estate company presented opportunities to purchase homes in Israel. According to the complaint, this event held religious significance for many attendees, who view moving to Israel as a fulfillment of a religious commandment. Similar events often include prayer or Torah study and are generally understood by the community as religious in nature.

{Defendants contest the religious nature of the Aliyah Event, largely because Plaintiffs' claims depend in part on whether they were attempting to enter the Synagogue to exercise their First Amendment rights. The complaint contains detailed allegations regarding the religious nature of the Aliyah Event, e.g. that a common belief among Orthodox Jews is that returning to and dwelling in Israel is a religious commandment. At the motion to dismiss stage, the Court takes Plaintiffs' allegations regarding the religious nature of the Aliyah Event as true and therefore that attempts to enter the Synagogue to attend that event pertained to an exercise of First Amendment rights. In any event, several Plaintiffs allege that they attempted to enter the Synagogue at least in part for a squarely religious purpose, e.g. to attend prayer services.}

Plaintiffs sued various defendants over various roles in what they characterized as "a mob" that assembled outside the Synagogue; some members allegedly engaged in violence against some of the synagogue-goers. Here, I'll focus on claims that certain posts were "threat[s] of force" and thus violated the FACE Act, the Freedom of Access to Clinic Entrances Act of 1994; that law bars interference through obstruction, force, or threat of force not just with reproductive health facilities but also with places of religious worship.

The PYM social media posts call on their supports to "STAND AGAINST SETTLER EXPANSION AT SUNDAY'S REAL ESTATE EVENT SELLING HOMES TO BUILD 'ANGLO NEIGHBORHOODS' IN PALESTINE." The post continues by describing the Aliyah Event as a "blatant example of land theft" perpetrated by "[r]acist settler expansionists." The posts finish with "FROM THE BELLY OF THE BEAST NO JUSTICE, NO PEACE." Plaintiffs allege, "upon information and belief," that the phrase "belly of the beast" refers to a synagogue.

Even if "belly of the beast" refers to the Synagogue, these posts are not true threats. At most, they express a political message: if there is no justice for Palestinians, there will be no peace—even in religious spaces.

The Volokh Conspiracy

In Search of a New Environmentalism -- Hayward Replies

William Barr Discovers the Economics of Tort Law (and Misrepresents the Law Governing Interstate Pollution)

Public School Teacher Lacks First Amendment Right to Put Foot-High Crucifix on Classroom Wall

Hoover Fellow Program: Up-to-5-Year Paid In-Residence Position for Aspiring Academics (Including Aspiring Legal Academics)

Journal of Free Speech Law: "Extramural Absolutism," by Deepa Das Acevedo

Second Annual Aspiring Free Speech Scholars Workshop

Today in Supreme Court History: November 3, 1845

Monday Open Thread

"No Justice, No Peace" and True Threats

My review of John Witt, The Radical Fund

Today in Supreme Court History: November 2, 2010

Sunday Open Thread

Six Things I Learned From Jodi Kantor's Latest Article

Today in Supreme Court History: November 1, 1961

Is "Impeding Travel for Many Students" as Part of a Protest First Amendment-Protected Speech?

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Palestinian Youth Movement Social Media Posts with "No Justice, No Peace" Urging Protest Outside Synagogue Are Protected Speech

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