The Volokh Conspiracy

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

Together with my coauthor and former student Kavita Balchand, I recently published a law review article entitled "Why Jack Daniel's Can't Stop #WestElmCaleb and What Now?" in the William & Mary Bill of Rights Journal. It is available for download here, and this is the abstract:

The Supreme Court's recent decision in Jack Daniel's Properties v. VIP Products was hailed as a victory by trademark owners worried about infringement and dilution. Its holding weakened the potential protection that trademark parodies would receive via the fair use defense. That said, it remains difficult to use trademark law to stop many uses of marks that harm a brand, in an era in which a single negative viral hashtag campaign could spell disaster. Notably, hashtags including trademarks such as "#WestElmCaleb" and "#TinderSwindler" have spread in recent years and arguably brought disrepute to the named companies by connecting them to alleged predators of various stripes. Even with the Jack Daniel's holding going their way, trademark owners are unlikely to be able to act against most third parties who use their marks on social media in this manner, mainly because the use is descriptive and not for financial gain. Things are murkier when commercial entities make use of a hashtagged or previously-hashtagged term, as happened with "West Elm Caleb" when other companies began making references to the term in their messaging. West Elm would be going down an uncertain legal road by pursuing those claims, however, and meanwhile any claims against individual social media users would likely not only lose but also hurt the company with consumers. The solution for optimal brand management may largely lie in self-help: companies such as West Elm should prevent harassing and other unsavory behavior on the part of their employees on social media and in other communications in the first place, and companies such as Tinder must overhaul their safety practices to rein in predatory users. This Article proposes advances in employee policies and training to prevent trademark harms arising from employees' online behavior, and also gives guidance on dating apps' user problem. While Jack Daniel's might not be able to stop West Elm Caleb or the Tinder Swindler, the companies involved can take a real "shot" at it.

A short excerpt from today's long decision in U.S. v. Mackey by Second Circuit Judge Debra Ann Livingston, joined by Judges Reena Raggi and Beth Robinson:

On November 1 and 2, 2016, Defendant-Appellant Douglass Mackey … posted or reposted three "memes" on Twitter falsely suggesting that supporters of then-candidate Hillary Clinton could vote in the 2016 presidential election by text message. Based on these posts, a jury … convicted him of conspiring to injure citizens in the exercise of their right to vote in violation of 18 U.S.C. § 241.Mackey argues on appeal that the evidence was insufficient to prove that he knowingly agreed to join the charged conspiracy. We agree….

The parties do not dispute either (1) that Mackey posted the memes or (2) that his doing so independently would not be a crime under Section 241. Section 241 criminalizes only conspiracies between "two or more persons." As a result, the mere fact that Mackey posted the memes, even assuming that he did so with the intent to injure other citizens in the exercise of their right to vote, is not enough, standing alone, to prove a violation of Section 241. The government was obligated to show that Mackey knowingly entered into an agreement with other people to pursue that objective.

This the government failed to do. Its primary evidence of agreement, apart from the memes themselves, consisted of exchanges among the participants in several private Twitter message groups—exchanges the government argued showed the intent of the participants to interfere with others' exercise of their right to vote. Yet the government failed to offer sufficient evidence that Mackey even viewed—let alone participated in—any of these exchanges. And in the absence of such evidence, the government's remaining circumstantial evidence cannot alone establish Mackey's knowing agreement. Accordingly, the jury's verdict and the resulting judgment of conviction must be set aside….

Free Speech

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Some quick thoughts occasioned by Josh Blackman's post on coercion in Mahmoud v. Taylor, last Term's parental rights case.

As readers will recall, Mahmoud held that a Maryland school district violated the Free Exercise Clause when it rescinded an opt-out policy that had allowed parents to have their children excused from elementary school lessons featuring LGBTQ+-inclusive storybooks. The Court reasoned that the storybooks, along with classroom discussions that encouraged teachers to reinforce their messages, imposed psychological pressure on students to accept a normative view of sexuality—one that directly conflicted with the religious teachings the parents sought to instill. That pressure, the majority concluded, amounted to a substantial burden on the parents' religious exercise.

In a post yesterday, I noted what seemed like an ideological reversal in the case. In the school prayer context—for example, Kennedy v. Bremerton School District—it's typically progressives who emphasize the dangers of subtle coercion and impressionable students, while conservatives downplay those concerns. In Mahmoud, the roles flipped. The conservative majority focused on the psychological pressure placed on young children by state-endorsed messaging, while the progressive justices appeared less troubled by that dynamic.

So which side is being inconsistent? Perhaps both are simply responding to context. Or perhaps the concept of "coercion" is more manipulable than either side tends to admit.

Josh offers one way to reconcile Mahmoud and Kennedy: by distinguishing between pressure on students' religious beliefs versus their non-religious beliefs. Under this reading, Mahmoud bars the state from pressuring students to abandon religious teachings, but Kennedy permits exposure to religious ideas, even if the state implicitly favors them, so long as there's no coercion into belief.

I wonder if another, simpler distinction might do more work: the age of the students involved. Mahmoud concerned very young children—kindergarten through fifth grade—who are especially vulnerable to subtle cues from teachers. Kennedy, by contrast, involved high school students, who, in theory at least, are better equipped to resist classroom pressure—or have already learned to tune out much of what their teachers say. In other words, the Court might be drawing an implicit line based not just on the nature of the message but on the susceptibility of the audience.

Josh also rightly highlights a doctrinal frontier: the Ten Commandments display cases currently working their way through the lower courts. These raise hard questions for conservatives post-Mahmoud. In Stone v. Graham (1980), the Court struck down a classroom display of the Ten Commandments under the Lemon test. But since Kennedy, Lemon is out, and the Court has instructed lower courts to apply a "history and tradition" framework to Establishment Clause claims.

Even under that revised test, though, the state may not coerce religious belief. And if Mahmoud teaches that distributing LGBTQ+-affirming storybooks to elementary schoolers is too coercive, might a Ten Commandments display in the same setting pose a similar problem?

Courts may try to draw a line between passive and active messaging. One possible distinction appears in the European Court of Human Rights' decision in Lautsi v. Italy (2011), which upheld the display of crucifixes in public school classrooms. The Court reasoned that crucifixes were "passive symbols" and unlikely to indoctrinate students, unlike formal instruction. U.S. courts might adopt a similar distinction here. In Mahmoud, teachers were not just presenting material; they were encouraged to affirm the books' messages and correct students who disagreed. A silent wall display may strike courts as less coercive.

This is a familiar principle in modern defamation law: Some words, however pejorative, are treated as too general to be the sorts of factual allegations that can count as defamation. I just came across the same principle in Marshall v. Addison (Md. Provincial Ct. 1773), and thought it formed a good illustration of how long Anglo-American law has been dealing with these questions:

THIS was an action of Slander. The declaration contained three counts. The first and second counts, for saying the plaintiff was "a rogue and villain, and that he had ruined many families, and the curses of the widows and children were on him," &c. "that he had wronged the defendant's father's estate, and cheated the defendant's brother Thomas." …

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From the N.H. Supreme Court Thursday in D.V. v. R.G. (see also the newspaper coverage of the initial controversy; court records reflect that the parties are Valente v. Garcia):

The plaintiff owns a business near an apartment building in Manchester where the defendant lives. In June 2024, the defendant let her cat outside. The cat was apparently sick and dying. On the same day, the plaintiff's daughter found a cat on the plaintiff's property that appeared to be in poor health. The plaintiff took the cat in and spent several thousand dollars on veterinary care. [Note that defendant argues, in her appellate brief that the cat was "an indoor-outdoor cat who would wander the neighborhood"; she had taken the cat to the vet, who told her that the cat "may die in the upcoming weeks"; she brought the cat "home so he would live his last days with his family"; and she let the cat continue his daily routine, including his outside time, "because at the time, he was not in distress." -EV]

On Friday, June 28, the plaintiff learned that the defendant had lost a cat and went to the defendant's apartment to inquire whether the cat belonged to the defendant. Although the parties dispute what the plaintiff said or promised during that meeting, there is no dispute that, by the end of the day, the plaintiff refused to return the cat to the defendant. According to the plaintiff, she was concerned that, if the cat were the defendant's cat, the defendant had abused or neglected it. The plaintiff communicated to the defendant that she planned to consult with Manchester Animal Control when it opened the following Monday morning.

By Saturday, the defendant had made claims on social media that the plaintiff and her daughter had stolen her cat. [More facts below. -EV] The defendant also organized a protest outside the plaintiff's business. [Again, more facts below. -EV] … On Tuesday, when the plaintiff's daughter brought the cat, at the suggestion of the police, to the animal shelter, the cat had died. The defendant then claimed on social media that the plaintiff had killed the cat….

New Hampshire law allows courts to issue anti-stalking orders of protection, aimed at stopping defendants from

"[p]urposely, knowingly, or recklessly engag[ing] in a course of conduct"—defined to include at least two acts of communication—
"targeted at a specific person"
"which would cause a reasonable person to fear" for the person's or family members' safety
when such fear has indeed been caused.

Plaintiff sought such an order, and the trial court issued it, banning defendant from "further acts of stalking"—which presumably forbade the defendant from repeating the behavior that she engaged in—and specifically banning defendant "from posting about Plaintiff and her business on any public social media accounts." The trial court reasoned (see pp. 22-23 of this PDF):

Free Speech Harassment

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7/9/1868: The Fourteenth Amendment is ratified.

On June 26, the Court decided Gutierrez v. Saenz. Justice Thomas wrote a thoughtful concurrence that explored the meaning of "liberty" in the Due Process Clause. In that concurrence, Thomas cast doubt on the doctrine of substantive due process. Yet, as I noted, Thomas was a bit cagey about Meyer v. Nebraska, and the right to raise children. I suspect that Mahmoud was on Thomas's mind.

On June 27, the Court decided Mahmoud. As I explained in this post, the Court resolved this case about parental rights with barely any mention of substantive due process. The Court is still suffering from Lochner-phobia. Everything was grounded in the Free Exercise of Religion. For example, Justice Alito wrote:

"[W]e have long recognized the rights of parents to direct 'the religious upbringing' of their children." Espinoza v. Montana Dept. of Revenue, 591 U. S. 464, 486 (2020) (quoting Yoder, 406 U. S., at 213–214).

Meyer and Pierce were not limited to "religious upbringing." Those precedents referred to upbringing of children, in all contexts.

Justice Sotomayor's dissent describes the majority opinion accurately:

Here, however, the Court's analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that "the burden in this case is of the exact same character as the burden in Yoder."

Justice Thomas wrote a concurrence in Mahmoud that hinted at substantive due process, briefly. Thomas explains that Yoder was based on Pierce v. Society of Sisters:

In reaching this conclusion, the Court relied heavily on its earlier decision in Pierce, which articulated "perhaps the most significant statements of the Court in this area."

And Pierce, in turn, was a substantive due process case:

While the Court did not decide Pierce on free exercise grounds,[FN4] the context in which Pierce arose confirms that it "stands as a charter of the rights of parents to direct thereligious upbringing of their children." Yoder, 406 U. S., at 233.

[FN4] The Court decided Pierce 15 years before it recognized that the First Amendment's free-exercise guarantee applies against the States. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).

Griswold and other Warren Court cases tried to recast Pierce as a Free Exercise case, but that doesn't work. Lochner and Pierce are cut from the same cloth.

For reasons I do not understand, Justice Thomas doesn't cite his Gutierrez concurrence, or talk about Lochner. He may have made peace with a substantive due process right to raise children, but his cagey about the basis.

At bottom, the Justices don't want to talk about Smith, and they don't want to talk about substantive due process. But now that Dobbs overruled Roe, I do think there is some space to talk about facets of substantive due process that may be correct.

A few days ago, I asked if the moment for overruling Smith had passed. At the time, I had not yet read Mahmoud. (I am still making my way through the opinions.) Now, having read Mahmoud, I see a Court that is desperately trying to stay away from resolving the validity of Smith.

Let me lay out some salient facts from Mahmoud. The government initially allowed parents to opt-out their children from being exposed to certain books. However, that opt-out was later removed. And, as Justice Alito observed, "[t]he Board member went on to suggest that the religious parents were comparable to 'white supremacists' who want to prevent their children from learning about civil rights and 'xenophobes' who object to 'stories about immigrant families.'" Yet, the school permits other types of opt-outs for non-religious reasons.

Based on the Court's precedents, I could see two possible ways to avoid Smith. First, the Court could follow Masterpiece Cakeshop, and find that the statements from the board member were impermissible animus against religious parents. This policy would not be neutral towards religion. That finding would trigger heightened scrutiny under the rubric from Church of the Lukumi. Then again, Justice Sotomayor suggests in Footnote 15 that the Board Member was not actually expressing hostility towards religion, so that argument may not have worked.

Second, the government allowed an exemption for religious parents, but then removed that exemption, even as other exemptions are present. These facts resembles Roman Catholic Diocese, Tandon, and Fulton, under the "most favored nation" approach. In other words, religion is being treated worse than non-religion. This policy would then not be generally applicable, so would be reviewed with heightened scrutiny. The Court even cited Fulton:

This robust "system of exceptions" undermines the Board's contention that the provision of opt outs to religious parents would be infeasible or unworkable. Fulton, 593 U. S., at 542.

But Alito discussed the exemptions at the back-end scrutiny analysis, and not at the front-end to determine whether strict scrutiny applies.

Yet, the Mahmoud Court did not take Door #1 or Door #2. Justice Alito expressly said he wouldn't even consider these arguments:

We acknowledge the many arguments pressed by the parents that theBoard's policies are not neutral and generally applicable. See Brief for Petitioners 35–44. But we need not consider those arguments further given that strict scrutiny is appropriate under Yoder.

Instead, Justice Alito took Door #3: Yoder. Alito explains that Mahmoud has the same "special character" as Yoder, so the Court follows that precedent.

Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny. That much is clear from our decisions in Yoder and Smith. . . . And we explained that the general rule did not apply in Yoder because of the special character of the burden in that case. 494 U. S., at 881. Thus, when a law imposes a burden of the same character as that in Yoder, strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable.

Therefore, given this "special character," Yoder does not fall under the Smith rubric. Thus, you get to heightened scrutiny without discussing whether the law is neutral or generally applicable. I suspect this indirect route was necessary to keep Justices Kavanaugh and Barrett on board. They do not want to revisit Smith, and this approach allowed the Court to avoid that precedent.

Yoder has long been a favorite case for religious liberty litigants to cite, but I was always uncertain about its status. In Smith, Justice Scalia had to bend over backwards to distinguish away Yoder. Accordingly, I did not think Yoder had much play outside the narrow confines of that decision. The Burger Court was sympathetic to the Amish, but I doubt other religious groups would have gotten similar treatment. This case doesn't appear in the Barnett/Blackman casebook.

In Mahoud, the lower court limited the case to the unique circumstances of the Amish. The District Court "dismissed Yoder as 'sui generis and 'inexorably linked to the Amish community's unique religious beliefs and practices.'" Justice Alito, however, explained this was an error:

Mahmoud v. Taylor followed naturally from Skrmetti. Indeed, you could imagine a Court that decided Skrmetti the other would also flip Mahmoud. But given the fact that Skrmetti allowed the state to shield minors from gender transitioning, it makes sense that Mahmoud allowed parents to shield minors from information about gender transitioning.

Still, even though the outcome of Mahmoud was not hard to predict, the Court took a somewhat circuitous route to get there. First, the Court relied almost exclusively on Yoder, and used that precedent to get around Smith. Second, the Court, and Justice Thomas in particular, said almost nothing about substantive due process, even though the right to raise children was grounded in Lochner-era decisions like Meyer and Pierce. I'll address these two topics in other posts.

Here, I will discuss a third topic that requires some unpacking. How can Mahmoud be reconciled with Kennedy v. Bremerton School District? In particular, how can you line up the Court's treatment of coercion in these two recent decisions?

Recall that in Kennedy, the school district argued that the coach's prayers could coerce students, and thus violate the Establishment Clause. But according to the school district, there was "no evidence that students [were] directly coerced to pray with Kennedy." I have read Kennedy to stand for the proposition that only direct evidence of coercion would violate the Establishment Clause. As Justice Gorsuch explained, "[o]ffense . . . does not equate to coercion." Stated differently, merely being exposed to the prayer is not enough.

However, in Mahmoud, Justice Alito's majority opinion discussed coercion in a different fashion. Justice Alito reads Yoder as holding "that the Free Exercise Clause protects against policies that impose more subtle forms of interference with the religious upbringing of children." The Court goes on to say that the government can violate the Free Exercise Clause, even if there is only evidence of indirect coercion. Justice Alito writes:

According to the dissent, parents who send their children to public school must endure any instruction that falls short of direct compulsion or coercion and must try to counteract that teaching at home. The Free Exercise Clause is not so feeble. The parents in Barnette and Yoder were similarly capable of teaching their religious values "at home," but that made no difference to the First Amendment analysis in those cases.

Justice Sotomayor's dissent explains that the Roberts Court has in fact required such a heightened pleading standard.

Consistent with these longstanding principles, this Court has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim. That makes sense: Simply being exposed to beliefs contrary to your own does not "prohibi[t]" the "free exercise" of your religion. Amdt. 1. Nor does mere "'[o]ffense . . . equate to coercion.'" Kennedy v. Bremerton School Dist., 597 U. S. 507, 539 (2022) (quoting Town of Greece v. Galloway, 572 U. S. 565, 589 (2014) (plurality opinion) (alteration in original).

Justice Sotomayor returns to Kennedy later in her dissent.

From Judge Royce Lamberth (D.D.C.) today in Widakuswara & Abramowitz v. Lake:

On April 22, 2025, upon finding that the defendants likely violated several provisions of the Administrative Procedure Act (APA), this Court ordered the defendants to "restore VOA programming such that USAGM fulfills its statutory mandate that VOA 'serve as a consistently reliable and authoritative source of news.'" This portion of the Court's preliminary injunction remains in full effect.

On June 23, 2025, the Court held a hearing on the pending Motions for an Order to Show Cause … regarding the defendants' alleged noncompliance with this part of the preliminary injunction. At the conclusion of the hearing, the Court ordered the defendants to file a "supplemental memorandum with additional information regarding USAGM's recent activities, including any relevant information about USAGM [U.S. Agency for Global Media] funding decisions, personnel updates, and submissions to Congress." …

The Court, having now reviewed all filings, is still unable to get a clear picture of how VOA is operating or how the agency plans to operate VOA moving forward.

For example, the defendants cite VOA's ramped-up Persian news programming in the aftermath of the recent Israeli air strikes against Iran as a successful demonstration of VOA's capacity to report the news. The defendants emphasize their ability to "exercise[] recalls, as appropriate," and maintain their "access to critical talent" to carry out operations as needed. But at the same time, the defendants also attach their submission to Congress on June 3rd, showing their intent to fire those very Persian News Network staffers as part of the impending reduction-in-force (RIF). See June 3 Notification to Senator Graham (indicating plan to retain only 11 VOA positions and 2 Farsi language positions). Faced with this record, the Court cannot rely on the defendants' latest representation of the Persian News Network "surge operation" as any measure of compliance.

Free Speech Administrative Law

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From yesterday's opinion by Judge Michael Nachmanoff (E.D Va.) in Apelbaum v. Bloom:

Yaacov Apelbaum is the founder of XRVision, Ltd., a cybersecurity and analytics company. Plaintiffs Apelbaum and XRVision … attracted media attention in 2020 for their role in examining Hunter Biden's laptop computer, purportedly "analyz[ing] the contents" of a copy of the hard drive "to determine the legitimacy of the [l]aptop."

[Defendant] Jordan Arthur Bloom … is an independent journalist who maintains a blog on the platform Substack. On January 29, 2024, Defendant published an article, "The Role of Yaacov Apelbaum in the Hunter Biden Drama" ("First Article")…. The alleged defamatory statements in the First Article include:

"Yaacov Apelbaum is an Israeli spy, and the sort of Israeli spy who would have good reasons to smear American facial recognition technology, because his company, XRVision, is a competitor."

"XRVision has provided sourcing to a bunch of conservative publications, including the Washington Times. So this is an Israeli spy who's deeply involved in shaping the Hunter Biden story."

"What the case of Apelbaum actually represents is how badly the conservative movement has been penetrated by Israeli intelligence, at the level of human intelligence and technology contracting."

"It is a sad thing to watch an old man and American president be run around like this by dual loyalists and spies."

Free Speech Libel

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Today, the Liberty Justice Center and I filed our appellate brief in VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs. Our litigation team also now includes Neal Katyal and Michael McConnell, leading constitutional law scholars and appellate litigators on different sides of the political spectrum. It is an honor to work with the two of them and their teams, and with the LJC team led by Jeffrey Schwab.

The case is now before the US Court of Appeals for the Federal Circuit, and we are defending a unanimous ruling in our favor by the US Court of International Trade. As before, the key issue in the case is that the government claims the International Emergency Economic Powers Act of 1977 (IEEPA) grants the president unlimited power to impose tariffs on any nation, in any amount, for any reason, for any length of time. We argue IEEPA grants no such power, and if it did it would be an unconstitutional delegation of legislative power to the executive. The Court of International Trade rightly ruled that IEEPA does not "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." We hope the Federal Circuit will reach the same conclusions.

Many of the arguments at the appellate level are the same as those that prevailed below. But we have made a variety of improvements. For example, we explain how the Supreme Court's important recent decision in FCC v. Consumers' Research bolsters our argument that the government's claim to virtually unlimited tariff authority violates the nondelegation doctrine.

Our case is consolidated with one filed by 12 states, led by Oregon, which was decided by the Court of International Trade in the same ruling as ours.

I have written about the issues at stake in this case, in greater detail, here and here. For a complete list of links to my writings about the tariff litigation, see here.

The Liberty Justice Center has issued a statement about today's filing, which I reprint:

On July 8, the Liberty Justice Center continued its legal battle against the Trump Administration's unconstitutional "Liberation Day" tariffs by filing a response brief with the U.S Court of Appeals for the Federal Circuit.

The Liberty Justice Center filed a lawsuit against the "Liberation Day" tariffs on April 14, arguing that the Trump Administration cannot use the International Emergency Economic Powers Act (IEEPA) to justify the imposition of across-the-board tariffs. IEEPA does not mention tariffs at all, and even if the legislation did authorize some tariffs, it is limited to emergencies involving an "unusual or extraordinary threat." Trade deficits—the President's alleged basis for the tariffs—are not unusual, extraordinary, or an emergency. Furthermore, if IEEPA was interpreted to justify the broad tariffs claimed by the President, then it would raise constitutional separation of powers issues.

In May, the Liberty Justice Center secured a major legal victory when the U.S. Court of International Trade unanimously ruled in favor of its clients, holding that the Trump Administration had unlawfully imposed the tariffs under the guise of emergency economic powers. The federal government has since appealed that ruling to the Federal Circuit—and today's filing is the LJC's formal response to that appeal.

The Liberty Justice Center's legal challenge is joined by leading appellate lawyers and constitutional scholars Judge Michael W. McConnell, Neal Katyal, and Ilya Somin.

"The 'Liberation Day' tariffs would be devastating to the economy, to the small businesses we represent, and to the rights of all Americans. The executive branch cannot usurp Congress's authority to impose tariffs without blatantly violating the separation of powers—and it especially cannot fabricate emergencies to justify that violation. We are proud to continue our fight to hold all levels of government accountable to the people and the nation they serve," said Jeffrey Schwab, Senior Counsel and Director of Litigation at the Liberty Justice Center.

Oral arguments in the government's appeal are scheduled for July 31 at 10 am EDT before the U.S. Court of Appeals for the Federal Circuit. The arguments will be available via livestream here. Following the hearing, the Liberty Justice Center will host a media roundtable to discuss next steps in the case and answer questions from members of the press. To RSVP for the roundtable, visit the Liberty Justice Center's media reservations page here.

The government's opening appellate brief is available here.

UPDATE 7/8/2025: The Brandeis Center sent out a press release, stating:

The Louis D. Brandeis Center for Human Rights Under Law today commended Microsoft on its decision to equalize its treatment of its Jewish employee network, "Jews at Microsoft" (JAMS), alongside other recognized and funded ethnicity-based employee networks ….

Microsoft's nine top-tier employee networks, designated as Employee Resource Groups (ERGs), were company-recognized, sponsored, and supported organizations of employees within Microsoft based around a particular identifying characteristic, such as ethnicity, that afforded members of that ethnic group extra opportunities for professional development, career advancement, and the ability to collectively oppose discrimination in the workplace. Microsoft hadn't recognized religion as a category of identity permitted to establish an ERG, and refused to recognize the ethnic characteristic of Jewish identity; thus, Microsoft refused to recognize a Jewish ERG, denying Jewish Microsoft employees benefits that are provided to others. This violates Title VII of the Civil Rights Act of 1964.

Microsoft advised its various employee groups today that it is restructuring its employee network program so that all employee groups are equally recognized and funded, including JAMS.

ORIGINAL POST, 5/16/25: From the letter:

We write on behalf of Jewish employees of Microsoft who are also members of the Louis D. Brandeis Center Coalition to Combat Anti-Semitism ("the Coalition") to explain why Microsoft's refusal to establish a Jewish Employee Resource Group (ERG) alongside its existing network of ERGs has resulted in distributing very real professional benefits and advantages on the basis of ethnic or racial identity, while denying these benefits to Jewish and other employees. Providing all employees equal access to professional benefits and opportunities, including Microsoft's Jewish employees, is the right thing to do and is compelled by various federal and local anti-discrimination statutes. Moreover, by denying Jewish employees the very real advantages that Microsoft claims its ERGs bestow, Microsoft has allowed anti-Semitism to fester at Microsoft.

Microsoft's refusal to acknowledge its Jewish employees' right to an ERG seems to stem from a mistaken pigeonholing of Jewish identity as merely "religious," a category of identity that Microsoft excludes from its ERG program. In fact, Jews are a people with a shared ethnic and ancestral heritage. Irrespective of any shared creed or belief in a deity, Jews share a common lineage, history, culture, and language(s). This is the dictionary definition of ethnicity. Jews who never attend synagogue, observe Jewish holidays, practice Jewish religious rituals, or even believe in the religious tenets of Judaism are still ethnically Jewish, an understanding that is widely supported in academic literature and surveys of Jewish American life.

More importantly here, the law recognizes that Jewish identity isn't protected from discrimination based merely on its religious character, but also on its shared ethnic and ancestral heritage (including where protections based on race incorporate ethnicity).

Microsoft's ERGs share common features of ERGs at most Fortune 500 companies. They are employee-led and driven, so that topics of conversation and action come from the employees themselves based on their lived workplace experiences. They connect employees to company leadership, making it easier to collectively communicate broader workplace equity and inclusion concerns to those with the power to do something about them. They allow employees to represent and express themselves on their own terms, both to corporate leadership and to their colleagues. They facilitate corporate charitable giving to organizations that do work in their communities. And they foster networking and career advancement within the company.

In short, Microsoft's ERGs are a material "term and condition" of employment for Microsoft's workforce and distribute valuable benefits on the basis of identity.

Jewish Microsoft employees are no less deserving or in need of an ERG than other ethnic groups at Microsoft. Currently, Jewish (and other) Microsoft employees are denied various benefits of Microsoft employment:

Discrimination Law & Government

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From Abdullah v. Trump, decided in March by Judge Emmet Sullivan (D.D.C.), and reaffirmed Sunday (with a comment that "in the nearly four months since the Court gave Mr. Abdullah that opportunity, he has not sought to redact any information"):

On December 31, 2024, this Court denied two motions filed by Mr. Abdullah seeking his immediate release from Guantanamo Bay. The Court posted the Order accompanying the Memorandum Opinion on the public docket but posted the Memorandum Opinion under seal and directed the parties to post a public version on the public docket within fourteen days.

On January 6, 2025, Mr. Abdullah appealed the Court's denial of his two motions …. On January 7, 2025, the government filed a notice that it had transferred Mr. Abdullah to Oman. The same day, this Court entered an order denying Mr. Abdullah's Motion for Order Granting Writ of Habeas Corpus as moot ….

On January 28, 2025, [having gotten an extension,] the government filed the redacted public version of the Memorandum Opinion [available here -EV]. Two days later, Mr. Abdullah filed his Motion to Seal in which he asks the Court to permanently seal the Memorandum Opinion ….

Mr. Abdullah's two main arguments for the Court to seal its Memorandum Opinion are that public release after the Memorandum Opinion became unreviewable as moot would: (1) be an impermissible advisory opinion under Article III of the United States Constitution; and (2) "shred what remains" of Mr. Abdullah's privacy interests….

Free Speech Right of Access Privacy

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From yesterday's report and recommendation by Magistrate Judge Nancy Joseph (E.D. Wisc.) in U.S. v. Dugan:

The indictment charges as follows:

[Count One:] On or about April 18, 2025, Dugan knowingly concealed E.F.R., a person for whose arrest a warrant and process had been issued under the provisions of the law of the United States, so as to prevent the discovery and arrest of E.F.R., after notice and knowledge of the fact that a warrant and process had been issued for the apprehension of E.F.R., in violation of 18 U.S.C. § 1071[.]

[Count Two:] On or about April 18, 2025, Dugan did corruptly endeavor to influence, obstruct, and impede the due and proper administration of the law under which a pending proceeding was being had before a department and agency of the United States, namely the administrative arrest of E.F.R. for purposes of removal proceedings conducted by the United States Department of Homeland Security, by committing affirmative acts to assist E.F.R. to evade arrest, including:

confronting members of a United States Immigration and Customs Enforcement (ICE) Task Force and falsely telling them they needed a judicial warrant to effectuate the arrest of E.F.R.;

upon learning that they had an administrative warrant for E.F.R.'s arrest, directing all identified members of the ICE Task Force to leave the location of the planned arrest (a public hallway outside of Courtroom 615 of the Milwaukee County Courthouse) and go to the Chief Judge's office;

addressing E.F.R.'s Milwaukee County Circuit Court criminal case off the record while ICE Task Force members were in the Chief Judge's office;

directing E.F.R. and his counsel to exit Courtroom 615 through a non-public jury door; and

advising E.F.R.'s counsel that E.F.R. could appear by "Zoom" for his next court date

[i]n violation of 18 U.S.C. § 1505….

Dugan sought to dismiss the indictment, on the grounds that her actions were protected by judicial immunity; the Magistrate Judge went through a long analysis of the precedents on judicial immunity (dating back to 1607), and summarized it thus:

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From Judge Edward Shippen in Rue v. Mitchell (Pa. Ct. Com. Pl. Phila. County 1790):

Generally speaking, indeed, actions of slander, founded on trifling causes, to gratify a petulant and quarrelsome disposition, will not be encouraged by the court; but when the reputation, trade, or profession, of a citizen it really affected, for the sake of doing justice to the dearest interests of individuals, as well as for the sake of preserving public order, and tranquillity, every appeal to the tribunals of our country ought to be liberally sustained.

Politics

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Here's a summary of the underlying legal issue, as reported in Jackson v. Wright, decided in 2022 by Judge Amos Mazzant (E.D. Tex.):

This case stems from the suppression of academic scholarship at the University of North Texas …. Plaintiff Dr. Timothy Jackson is a professor and scholar of music theory at UNT. He has dedicated much of his 40-year career to studying Heinrich Schenker …, an Austrian Jew who developed a system of music theory that became influential in the United States after World War II. Prior to this lawsuit, UNT was home to, and Plaintiff directed, the Center for Schenkerian Studies. Plaintiff was also a founding member of the Journal of Schenkerian Studies …, which was formerly published by the UNT Press.

Plaintiff's area of expertise became a topic of controversy in November 2019 at a convention of the Society for Music Theory. Philip Ewell, a Black professor at Hunter College of the City University of New York, delivered for the Society a plenary address titled "Music Theory's White Racial Frame." During this talk, Professor Ewell critiqued the discipline of music theory for its "deep-seated whiteness" and described Schenker as "an ardent racist and German nationalist." In a paper later published on this talk, Professor Ewell argued that "Schenkerian theory is an institutionalized racial structure … that exists to benefit members of the dominant white race of music theory."

As a lead editor of the Journal (of which Schenker is the namesake), Plaintiff … organized a symposium and invited music scholars to submit papers in response to Professor Ewell's talk and publication….

The symposium contributions reflected a range of views on Professor Ewell's arguments and were published in the Journal in July 2020. Plaintiff contributed one of the pieces, which accuses Professor Ewell of quoting Schenker without context, failing to discuss the evolution of Schenker's views on race during his lifetime, and refusing to acknowledge that Schenker was a victim of anti-Semitism.

Plaintiff also suggested Professor Ewell's criticisms of Schenker might themselves have constituted anti-Semitism. In support of this contention, Plaintiff cited studies purportedly classifying Black people as more likely to hold anti-Semitic views than whites. Plaintiff closed his article by asserting that the paucity of African American involvement in music theory discipline results from "few grow[ing] up in homes where classical music is profoundly valued, and therefore … lack[ing] the necessary background."

Free Speech Campus Free Speech

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Last month, the Supreme Court wrapped up its October 2024 Term, which included three church-state decisions. Each touched on long-running issues—public funding for religious schools, the definition of "religious" for purposes of exemptions, and parental rights in public education. But only one case, Mahmoud v. Taylor, resulted in a major ruling. The two others, for different reasons, turned out to be less eventful.

Start with Oklahoma Statewide Charter School Board v. Drummond, a case that could have clarified whether religious charter schools are permissible under the Establishment Clause. The Oklahoma Supreme Court had barred a proposed Catholic charter school, St. Isidore, reasoning that it qualified as a state actor. St. Isidore argued it was more akin to a private contractor participating in a public program—like in Espinoza and Carson, two earlier school funding cases—and thus eligible for equal treatment.

The Supreme Court granted cert, but Justice Barrett recused herself—most likely because Notre Dame's Religious Liberty Clinic was deeply involved in the litigation. That led to a 4–4 split, affirming the Oklahoma ruling without setting precedent. Had Justice Barrett participated, she likely would have sided with the conservatives, and the case might have opened the door to religious charter schools nationwide. As it stands, the issue remains unresolved and will likely return.

Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission also failed to result in a major holding. The case concerned tax exemptions for religious organizations. Wisconsin exempts nonprofits that operate "primarily for religious purposes," but denied the exemption to certain Catholic social service agencies because, as matter of belief, they didn't proselytize or limit aid to co-religionists, and so could not be considered to operate for "religious" purposes.

The Court unanimously rejected that reasoning. Writing for the Court, Justice Sotomayor explained that Wisconsin's test amounted to theological discrimination—treating some religious groups less favorably because of their faith commitments. The Court's narrow decision avoided broader questions about when religious exemptions are constitutionally required or how to define religious exercise under the Free Exercise Clause. Read More

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