The Volokh Conspiracy Archive

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. Earlier posts have largely criticized such viewpoint diversity requirements, by analogy to criticisms of the Fairness Doctrine. Here are two sections discussing possible permissible options related to viewpoint diversity and nondiscrimination, plus the Conclusion.

[IX.] The Permissible Scope of Viewpoint Diversity Mandates: Support for Specific Messages or Programs That the Government Is Promoting

So far, I have argued that viewpoint diversity mandates are inevitably viewpoint-based, and that therefore, the government can't attach them as conditions to general funding aimed at promoting accessibility of universities to students (e.g., student loans) or at funding universities' or faculty members' own research projects.

But of course, when the government is aiming to promote particular messages, it can indeed favor some viewpoints over others. As the Court noted in Rust v. Sullivan,

When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.

Likewise, Congress is free to provide a grant to the National Endowment for Democracy calling for it to fund pro-democracy programs in a way that supports "viewpoint diversity." That grant condition would presumably require the Endowment to support a wide range of different viewpoints on how best to promote democracy: Perhaps the Endowment would need to make sure that grants go towards projects that promote presidential democracy systems as well as parliamentary ones, towards projects that accept local views on what is democratic enough, or towards projects that call for adopting supposedly universal human rights principles.

10/17/1862: Justice David Davis takes oath.

Yesterday, the US Chamber of Commerce filed a lawsuit challenging Donald Trump's imposition of a $100,000 fee on applications for H-1B visas, which are used by tech firms, research institutions, and others to hire immigrant workers with various highly specialized skills. This is the second lawsuit against the H-1B visa fees. The earlier case , Global Nurse Force v. Trump, was filed a coalition of mostly left-leaning litigants, including education groups (e.g. - the American Association of University Professors), religious organizations, and labor unions. It's not every day that major labor unions find themselves on the same side as America's leading organization representing businesses! But this issue has brought them together.

In a previous post, I outlined reasons why Trump's imposition of the H-1B visa fee goes beyond the statutory authority granted by Congress, and also explained how the administration's interpretation of the law would violate the nondelegation doctrine (which limits delegations of legislative power to the executive). I also summarized why the fee would inflict grave harm on the US economy, as H-1B visa holders disproportionately contribute to innovation and economic growth.

The lawsuit filed by the Chamber makes many of the same types of arguments as the Global Nurse Force plaintiffs. They too, emphasize that Trump lacks statutory authority to impose the fees, and that interpreting the relevant statutes to allow it would go against the "major questions" doctrine, and violate constitutional limits on delegation, especially given that this delegation involves the power to raise revenue. And revenue-raising is, as the Chamber notes, "a core power reserved for Congress (see, e.g., U.S. Const. art. I § 7, cl. 1; id. § 8, cl. 1), "Congress must indicate clearly its intention to delegate to the Executive the discretionary authority to" impose "'fees' or 'taxes…'"

I think the Chamber should develop the nondelegation argument further, including making the point that Trump's position implies virtually unlimited presidential authority to restrict migration and impose conditions on entry. That violates nondelegation even aside from the revenue angle.

I hope the combination of the Chamber lawsuit and the earlier case will lead to the demise of the $100,000 fee, preferably sooner rather than later. There may be other cases challenging the fee, as well. I will likely have more to say as this litigation continues.

An excerpt from the long decision in Shapley v. Lowell by Judge Richard Leon (D.D.C.) filed today:

This case arises from the multi-year criminal investigation into Hunter Biden's tax compliance. Two of the Internal Revenue Service's special agents involved, plaintiffs Gary Shapley and Joseph Ziegler, revealed details about the investigation to Congress and the media due to their concerns that the Department of Justice and the Internal Revenue Service were giving Hunter Biden preferential treatment during the course of the investigation. Plaintiffs filed this suit against one of Hunter Biden's counsel, Abbe Lowell, alleging that he sent defamatory statements to the media that accuse plaintiffs of violating federal law….

For a statement to be "actionable," it must at least express or imply a verifiably false fact about the plaintiffs. … "[W]hen a writer gives a statement of opinion that is based upon true facts that are revealed to readers … such opinions generally are not actionable so long as the opinion does not otherwise imply unstated defamatory fact." …

Starting with context, the documents in which the challenged statements appear, and the circumstances of their alleged publication, cut against these statements being actionable. The statements are not isolated accusations of wrongdoing, as presented in the Complaint, but rather reasoned—albeit aggressive—positions that Biden's attorneys took in the course of representing and advocating for their client. During a criminal investigation of then-sitting President Joe Biden's son, Government agents disclosed details about the investigation to Congress and the media. Biden's defense attorneys wrote letters to Government officials in an attempt to stop more information about their client from becoming public. The challenged statements are contained in these letters.

From today's decision in Gittemeier v. Liberty Mutual Pers. Ins. Co. (E.D. Mo.):

Gittemeier posits that Liberty Mutual again miscited cases in its filing and referenced at least one non-existent citation, despite the Court's warning in the previous order to verify its sources before submitting future filings. Gittemeier points out that the Goodman case was again miscited in Liberty Mutual's filing after it had been miscited in the initial summary judgment memorandum. Moreover, Gittemeier asserts that the quoted section from 30 Mo. Prac., Insurance Law & Practice is not found in the cited section or in the nearby sections….

Liberty Mutual's erroneous citations constitute a serious oversight warranting consideration of sanctions pursuant to Rule 11. After Liberty Mutual cited two nonexistent cases in its initial motion for summary judgment, the Court urged "Liberty Mutual to verify its sources before submitting future filings with the Court" and indicated that this warning would be provided only once. Yet somehow, in its memorandum in support of its second motion for summary judgment, Liberty Mutual not only cited two nonexistent cases again (Goodman was miscited previously as well), but also misquoted or mischaracterized multiple cases, including Dhyne, Goodman, and Chaudri. {Liberty Mutual cited Goodman v. Liberty Mut. Fire Ins. Co., 2022 WL 4534416, at *6-7 (E.D. Mo. Sept. 28, 2022) and Chaudhri v State Auto Prop. & Cas. Ins. Co., 2022 WL 4596697 (E.D. Mo. Sept 30, 2022). These cases do not exist.} Furthermore, Liberty Mutual falsely suggested that 30 Mo. Prac., Insurance Law & Practice §§ 4:2, 4:8, and 4:9 contains comments regarding cooperation clauses and EUO [examination under oath] requirements.

American libel law has long recognized the "wire service defense"; to quote Layne v. Tribune Co. (Fla. 1933),

The mere reiteration in a daily newspaper, of an actually false, but apparently authentic news dispatch, received by a newspaper publisher from a generally recognized reliable source of daily news, such as some reputable news service agency engaged in collecting and reporting the news, cannot through publication alone be deemed per se to amount to an actionable libel by indorsement, in the absence of some showing from the nature of the article published, or otherwise, that the publisher must have acted in a negligent, reckless careless manner in reproducing it to another's injury.

The defense often arose when a newspaper publisher reprinted stories from wire services (such as the Associated Press), but also applied to reprinting from other "generally recognized reliable source[s] of daily news," such as other newspapers.

It turns out, though, that this issue had arisen long before, and ended up actually being decided in a little-known 1811 case. (It's not on Westlaw, and has been cited only once in law journals, in an article that I wrote in 2010.) The case, excerpted below, is Binns v. M'Corkle, 2 Browne Pa. Rep. 79 (Dist. Ct. 1811) (Hemphill, J.); note the suggestion near the end that "if [a publisher] should quote from a distant and respectable paper, the name and description of a person, said to have absconded on account of the commission of a crime," "the republication might arise from motives of public good" and thus be privileged:

The Trump administration recently announced a new "Compact for Academic Excellence in Higher Education." The "deal" was initially offered to nine universities, and of those MIT and Brown have already said no. The administration is now rolling out the offer to more universities. Only a fool would take this deal.

The Compact marks a new tactic in the administration's effort to massively transform American higher education. The substantive demands remain much the same as the administration has pushed before, and it continues to rely on threats to financial vulnerabilities of universities. Now the administration promises not only to withhold federal grants from dissenting universities, but to strip them of nonprofit tax status, deny them access to international students, and prevent their students from receiving federal loans. Universities that "voluntarily" agree to the Compact will put themselves under permanent oversight of the Department of Justice, which will be empowered unilaterally to declare them noncompliant at any time and impose devastating financial penalties. It is an extraordinary bid to put essentially every university under the control of the federal executive branch. The Trump administration does not lack for boldness.

The Joint Statement

I have joined a group of five other scholars in a statement urging universities to reject this deal. The signatories are a politically diverse group known for their writing and work on free speech issues relating to American universities. They include Robert George (Princeton), Jeannie Suk Gersen (Harvard), Tom Ginsburg (Chicago), Robert Post (Yale), David Rabban (Texas), and Keith Whittington (Yale). We all speak on this in our individual capacities, but it is worth noting that two of the signatories were former leaders of the American Association of the University Professors and four are in the leadership of the Academic Freedom Alliance.

The joint statement can be found here.

From the conclusion of the statement:

Much has been gained, and much more is to be gained, by a partnership between the federal government and universities as institutions of teaching and research. Both partners need to behave responsibly. On the one side, universities must strictly comply with reasonable grant conditions, including non-discrimination requirements and civil rights laws. On the other side, governments must strictly respect the legitimate autonomy of universities and the academic freedom of their faculty and students.

Read the whole thing.

The Solo Analysis

Separately, I have my own analysis of the Compact at The Dispatch. This piece reviews the several components of the Compact, the mechanisms of enforcement, the radical changes it would make to how higher education has worked for decades in the United States, its willingness to cast aside existing legislative commitments and requirements, and the threat it poses to anything like academic freedom or independent civil institutions in the future. It is rife with unconstitutional conditions on First Amendment-protected speech but seeks to avoid any judicial scrutiny of those constitutional violations by forcing universities into a "voluntary" agreement with the federal executive branch.

From the conclusion of the piece:

There are real problems on college campuses, and the compact at least gestures toward some of those problems. Gesturing toward real problems does not make good policy, however. The compact is vague in its demands, but extraordinary in the amount of control that it wants to claim over the academic, intellectual, and political life of private and public universities. It effectively conditions the continued existence of universities on their ability to satisfy the current policy and political preferences of whomever occupies the White House at any given moment. This is not only incompatible with the existing law and Constitution; it is incompatible with any liberal conception of civil society. Universities are extremely resistant to needed reforms, and some would argue that a sledgehammer is needed to get them to see the light. Well, this is certainly a sledgehammer. If the hammer drops or opens the door to more such demands by this or future administrations, it will be an unmitigated disaster for American higher education.

Read the whole thing here.

As I write there, the Compact is a "sucker's deal." Worse yet, there is no reason to believe that the administration is a good faith partner in any such agreement, and its own terms leave the administration with essentially unfettered discretion to demand more down the road. We have seen this movie before. "I am altering the deal; pray I do not alter it any further."

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see my argument about why viewpoint diversity requirements are likely to chill controversial faculty speech here. Here is a follow-up section on why such requirements are likely to also be a dangerous tool for government control, and a section discussing the argument that they are nonetheless necessary because of the magnitude of bias within the academy.

[VII.] Tool for Government Control

So far, we have discussed the likely viewpoint-based chilling effect of viewpoint diversity rules and their likely viewpoint-based implementation by government officials—much as with the Fairness Doctrine—even when the officials are acting in perfect good faith. Even officials who are trying hard to be fair-minded and open-minded will have to choose between viewpoints that need to be represented and those that need to be omitted.

But of course, human nature being what it is, some officials won't be so fair-minded and open-minded. That too was one of the objections raised to the Fairness Doctrine: "[T]he fairness doctrine provides a dangerous vehicle—which had been exercised in the past by unscrupulous officials—for the intimidation of broadcasters who criticize governmental policy." And this too is likely to play out with regard to viewpoint diversity mandates, especially in light of "the inherently subjective evaluation of program content" that viewpoint diversity mandates are likely to involve.

Say that some prominent faculty members in a university department speak out against some federal government policy. It would be easy for the government to respond by calling for a viewpoint diversity audit of the department. "Where," the government might ask, "are the members of the department who support the challenged government policy?"

10/16/1898: Justice William O. Douglas's birthday.

From Sixth Circuit Judge John Nalbandian, joined by Judge Karen Nelson Moore, in yesterday's B.A. v. Tri County Area Schools:

Two middle schoolers in Michigan wore sweatshirts emblazoned with the phrase "Let's Go Brandon" to school. Based on the commonly understood meaning of the slogan, the school administrators determined that the sweatshirts were inappropriate for the school environment. They asked the students to remove the sweatshirts, and fearing punishment, the students complied. But they still wanted to wear the sweatshirts at school to express their disapproval of then-President Joe Biden's administration and its policies. So, through their mother, the students sued the school district and several school administrators, alleging that the school deprived them of their First Amendment rights. The district court sided with the school district, concluding that the school could reasonably prohibit the sweatshirts since they were vulgar speech. Because the school reasonably understood the slogan "Let's Go Brandon" to be vulgar, we affirm….

[S]tudents do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969). But those retained rights "are not automatically coextensive with the rights of adults in other settings." Bethel Sch. Dist. No. 403 v. Fraser (1986). Under Tinker, schools can generally forbid or punish student speech that causes a "substantial disruption of or material interference with school activities." But the Supreme Court has recognized several exceptions to Tinker's standard. On school grounds, a school may generally prohibit (1) indecent, lewd, and vulgar speech [as in Fraser]; (2) speech that promotes illegal drug use; and (3) speech that others may reasonably perceive as bearing the imprimatur of the school. Without one of these exceptions, the Tinker standard applies and the school has the burden of showing that it reasonably believes its regulation of student speech will prevent substantial and material interference with school functions.

This case is about the vulgarity exception. And specifically, how a school may regulate political speech without vulgar words that the school nonetheless reasonably understands as having a vulgar message. To answer that, we must resolve two preliminary questions. The first is linguistic, asking whether a phrase that lacks explicitly profane words might still have a vulgar meaning. The second is doctrinal, asking whether a school administrator may prohibit student political speech that has a vulgar message. The district court answered yes to both and so held that the plaintiffs hadn't suffered any constitutional deprivation because the school administrators' actions comported with the First Amendment. For the reasons given below, we agree….

I just finished listening to the oral argument in Callais. There are almost certainly six votes to rule in favor of Louisiana here. Justice Kavanaugh came to the argument extremely well-prepared, and seems to have mapped out all of the contours of an opinion. It seemed like he was reading from notes, and articulating different standards that could apply. He quibbled a bit with the Deputy SG's phrasing, but I think he is generally comfortable with the government's framing of the case. Chief Justice Roberts was quiet, and (as best as I can recall) only asked whether certain issues were raised in the Alabama litigation a few year ago. The Chief should assign the majority to Justice Kavanaugh, but will probably keep it himself. Justice Barrett was also working out some of the finer nuanced doctrines of the Enforcement Power analysis. She will probably write a concurrence along those lines.

There is much to discuss, but here I want to focus on a broader question of constitutional law.

Section 5 of the Fourteenth Amendment gives Congress the power to enact "appropriate legislation" to enforce the rest of the Fourteenth Amendment. City of Boerne v. Flores Court held that there are limits to Congress's power to remedy a violation of Section 1 (such as the Due Process or Equal Protection Clauses). Specifically, the remedy must be "congruent and proportional" to the constitutional violation.

The Supreme Court has never addressed whether the "congruence and proportionality" test also applies to Section 2 of the Fifteenth Amendment. I wrote about this way back in 2013 after Shelby County.

Today, several justices seemed to suggest that the Boerne test would limit Congress's powers under the Fifteenth Amendment. At one point, Justice Barrett asked counsel for petitioners to "assume" the Boerne test applied to the Fifteenth Amendment. In past cases, when Justice Barrett asks lawyers to assume something, that almost certainly means that is her position. Indeed, given Justice Barrett's unwillingness to reverse Smith, I think she will have to go all-in on Boerne.

If the Court does adopt the Boerne test, then the VRA inquiry changes. It is not disputed that the Fifteenth Amendment, like the Fourteenth Amendment, prohibits intentional discrimination. But Section 2 of the VRA (not to be confused with Section 2 of the Fifteenth Amendment) is an "effects" based test, that does not require any showing of intentionality.

Perhaps at some point in the past, Section 2 was a "congruent and proportional" response to the state of voting rights in the United States. Maybe that was even true when Gingles v. Thornburg was decided in 1986. But times have changed. Is there still a "congruence and proportionality" in 2025? I think it is worth noting that Gingles was decided a decade before Boerne. Then again, Boerne contrasted RFRA with the VRA, which had been upheld in Katzenbach.

The application of Borne to the VRA may give the Court a hook to "sunset" that provision, and rule that forcing the states to consider race when drawing maps may no longer be appropriate. Grutter gave the use of race a 25-year sunset clock. Gingles has had an even longer run.

Justice Barrett suggested that Gingles does not need to be "modified" but instead might be "clarified." The Court did just that with another Burger Court precedent. In Groff v. DeJoy (2023), the Court completely rewrote how TWA v. Hardison had been interpreted on the ground for five decades. And that was done to save the precedent from being overruled. Gingles may meet a similar fate. And yet another Burger Court precedent will bite the dust. (In fairness to co-blogger Paul Cassell, CJ Burger only concurred in the judgment in Gingles, which was decided during his final week on the Court.)

Last this week, I announced that the topic of the 14th Annual Harlan Institute Virtual Supreme Court Competition will focus on America's 250th Anniversary. The question presented is whether the United Colonies declare independence from Great Britain.

With something of a tease, I wrote that the championship round will be held before a panel of judges in a "special place."

I can now (almost certainly) confirm that the championship round will be held in the Rotunda Gallery of the National Archives, in the presence of the Declaration of Independence, the Constitution, and the Bill of Rights. I will have much more details in due course.

Teams can register to compete now.

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see my argument about why viewpoint diversity requirements are likely to chill controversial faculty speech here; here is a follow-up section on why such requirements are likely to be viewpoint discriminatory in application.

[VI.] Viewpoint Discrimination in Application

Beyond the viewpoint-based chilling effects, viewpoint diversity mandates are also likely to be viewpoint-based in application: They are likely to be enforced in ways that require universities to add more representation of viewpoints that are seen as "mainstream" or "legitimate"—or that match the viewpoint of the funding presidential administration—rather than viewpoints that are controversial and unpopular.

Viewpoint diversity mandates obviously can't be used to promote all viewpoints (just as the Fairness Doctrine couldn't be used to give airtime to all viewpoints). Nor can one just say that they need to promote "both" viewpoints: Very few matters are entirely either-or, with only two views on the issue.

The question is rarely something like "should we have immigration or shouldn't we?" Rather, some might argue for no immigration, some for very little, some for a lot, and some for unlimited immigration. Within the "very little" or "a lot" options, some might want to see a preference for more educated or richer immigrants, while others might disagree. Some might want more immigrants from certain countries, while others might want more immigrants from other countries, and still others might want to have no country preferences at all. Some might want to allow immigrants but make them easy to deport; others might want to make deportation extremely difficult. Some might want a quick path to citizenship, and others a slow one, or even no path at all.

There are far too many possible viewpoints on most subjects to ensure that all will be represented. After all, a typical law school or public policy school (if that's where immigration experts are hired) might have only a few positions for people who specialize in immigration. Whoever enforces the mandate must choose which viewpoints are to be included.

10/15/1883: The Civil Rights Cases are decided.

The Grand Opera House in New York denied "another person, whose color is not stated, the full enjoyment of the accommodations."

The Constitution allows Congress to vest the appointment power of inferior officers in the heads of departments. Can the department head then delegate that power to someone else in the department?

In 2005, the Office of Legal Counsel stated that the issue was unsettled:

Third, you have asked whether the prohibition in the draft order that prevents the Secretary of Defense from reassigning appointment authority to a subordinate is constitutionally compelled. The question whether Congress may permit the President or the head of a department to delegate appointment authority to an officer below the head of a department is a difficult one, and we cannot provide a definitive answer at this time. As noted, delegation clearly is not to be permitted for officers requiring Senate confirmation. However, neither the Attorney General nor this Office has definitively answered the question with respect to inferior officers who do not require Senate consent.

The Department of Justice has now provided a definitive answer. In the Third Circuit, there is ongoing litigation about whether Alina Habba can properly serve as Attorney General. Yesterday, a brief was filed by the Attorney General, the Deputy Attorney General, and others. I think this brief clearly represents the institutional position of the Department of Justice.

The brief squarely settles that the power to appoint inferior officers cannot be delegated:

The difference between acting service and delegated functions would still have significance for many other PAS officials under the FVRA. For example, because the power to appoint inferior officers is a non-delegable function constitutionally vested in an agency head, Lucia v. Securities and Exchange Commission, 585 U.S. 237, 244 (2018), an Acting Attorney General may appoint inferior officers under the FVRA, but an individual who has merely been delegated the Attorney General's powers under 28 U.S.C. § 510 may not; it would make no sense, however, to leap from that proposition to the defendants' conclusion that the FVRA also atextually preempts delegations that are valid under § 510.

Under 28 CFR §§ 0.15(b)(1)(ii), the Attorney General has delegated to the Deputy Attorney General, as well as the Associate Attorney Generals, the power to appoint certain positions. In light of the brief, these positions could not be considered inferior officers. Rather, at most, they must be "employees" of the United States. And per Buckley, these employees could not exercise "significant authority."

I'll need to chew on this matter a bit more.

I blogged previously about the role and ethics of AI use in the online dating communication context. The Guardian published over the weekend a piece discussing the proliferation of this practice. One of the problems it highlights is the mismatch that individuals encounter between who they thought they were texting and the person that shows up on a date and is significantly less articulate or attuned. In that sense and on average, it likely makes online dating (as well as getting to know each other via texting generally) an even less efficient process than already.

Some of the uses of AI mentioned in the interviews conducted for the Guardian article lean toward the comical, such as this one:

As 32-year-old Rich points out, though, "it's not like using ChatGPT guarantees success". When he met someone in a bar one Friday night and swapped social media handles, he asked AI what his next move should be. ChatGPT discerned that sending an initial message on Monday midmorning would set the right pace. "Then it gave me some options for what the message could be," says Rich. "Keep it light, warm, and low-stakes so it reads as genuine interest without urgency," the bot advised. "Something like: Hey Sarah, still laughing about [tiny shared moment/reference if you've got one] – good to meet you!" Rich went back and forth with ChatGPT until he felt they'd hit upon exactly the right message ("Hey Sarah, it was lovely to meet you") but sadly she never replied, he says. "It's been two weeks now."

Rather shocking that such a witty line wasn't an instant winner (though to be fair, whatever happened before that probably left a negative or lukewarm impression enough not to inspire desire for another meeting likely couldn't be overcome by ChatGPT anyway…).

Some other AI uses, however, bring up heavier subjects, such as here:

Still, there was one date that pricked his conscience. He was doing the usual copy-and-paste, letting ChatGPT do the heavy lifting, "when a girl started talking about how she'd had a bereavement in her family". ChatGPT navigated her grief with composure, synthesising the kind of sympathy that made Jamil seem like a model of emotional literacy. "It said something like, 'I'm so sorry you're going through this, it must be really difficult – thank you for trusting me with it,'" Jamil recalls. When he met the girl in real life, she noted how supportive he'd been in his messages. "I felt bad – I think that was the only time I thought it was kind of dishonest. I didn't tell her I'd used ChatGPT but I really tried to message her myself after that."

In this kind of setting, ethically speaking, motive matters. Was Jamil mainly being lazy, manipulative, or just insecure about how to approach the situation and thought ChatGPT would help him to do right by his interlocutor's grief? There's no way to know from a brief journalistic set of quotations, but it brings us closer to one of the central guidelines about when use of AI may be acceptable.

At the heart of it, it may come down to the Platinum Rule, which is to treat others the way one believes that they would want to be treated. And in a situation of bereavement, most people would probably not find it acceptable for someone to use AI out of laziness but would at least tolerate it if it was done in a good-faith attempt to comfort in an appropriate tone. Whether the behavior fell into column A versus B is likely to reveal itself once in-person interactions begin or intensify. It is fair to say, however, that the existence of modern AI tools has made it more key than ever to place a lot less stock in what people (now potentially more assisted by technology than previously) say as opposed to what they do.

The Heritage Guide to the Constitution is my fifth book. Like with my previous publications, I did everything in my power to eliminate typos and other errors before publication. And, like in the past, as soon as the book is sent to the printers, I discover more typos and errors. Finally, like in the past, as soon as Amazon ships the book, people start writing to me with errors.

I already compiled an errata list. We will make these changes for the second printing, and the online edition (stay tuned).

If you happen to spot an error, please email me: josh-at-joshblackman.com.

The Volokh Conspiracy

"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Permissible Options

Today in Supreme Court History: October 17, 1862

US Chamber of Commerce Files Lawsuit Challenging Trump's $100,000 H-1B Visa Fee

IRS Agents Who Revealed Details About Hunter Biden Investigation Lose Libel Suit Against Biden's Lawyer

Repeated "Nonexistent Cases" in Filing From >20-Lawyer Insurance Defense Firm

Everything Old Is New Again, Part MDCCCXI: The "Wire Service Defense" Before Wire Services

Against Trump's New Higher Education "Compact"

"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Tool for Goverment Control, and Magnitude of Bias

Today in Supreme Court History: October 16, 1898

Wednesday Open Thread

Let's Go Brandon!—to the Principal's Office

Boerne, RFRA, and the VRA

The Championship Round of the Harlan Institute Competition Will Be Held In The Rotunda of The National Archives

"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Viewpoint Discrimination in Application

Today in Supreme Court History: October 15, 1883

DOJ Argues That Agency Head Cannot Delegate Power To Appoint Inferior Officers

More on "Chatfishing" on Dating Apps and in Texting

Errata in The Heritage Guide to the Constitution

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

For America's 250th, Get 2 Years of Reason for $17.76