The Volokh Conspiracy

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Free Speech

Free Speech Unmuted: Harvard vs. Trump: Free Speech and Government Grants

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The Trump Administration has announced that it was freezing grants to Harvard, and demanding that Harvard change many of its policies and practices in order to get back in the Administration's good graces. President Trump has also suggested that Harvard might lose its tax-exempt status for "pushing political, ideological, and terrorist inspired/supporting 'Sickness.'" Would such a cutoff of funding or tax exemption benefits violate the First Amendment? Jane and I discuss.

See also our past episodes:

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A Tale Of Two Shadow Dockets

The Supreme Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but says nothing about Ohio initiative process being declared unconstitutional.

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In the span of seventy-two hours, the Supreme Court decided two cases on the emergency docket.

First, by a 7-2 vote, in A.A.R.P. v. Trump, the Court issued an injunction against the "government" to block the removal of a "putative" class of aliens. It did all this even though neither the District Court nor the Fifth Circuit had ruled yet. In fact, had the Supreme Court waited a few more minutes, it would have had an actual decision to review. Now, three days later, the Supreme Court still has not vacated its illegal injunction. I doubt it has any reason to move with alacrity here, since the Supreme Court circumvented the entire appellate process. The Supreme Court begrudgingly took the case away from Judge Boasberg (who is somehow still holding hearings) but the Chief has no interest in letting Texas judges actually decide it.

Second, the Court denied a stay in Yost v. Brown by a 6-3 vote. Here, a federal district court found that Ohio's constitutional amendment process was unconstitutional. A divided panel lifted the stay over Judge Bush's dissent. Justice Kavanaugh entered an administrative stay, but the full Court lifted the stay. Justices Kavanaugh, Thomas, and Alito dissented. There you have it, a federal court found unconstitutional the very process by which the people of Ohio can govern themselves. As a result, the Ohio Attorney General was forced to certify the amendment for the ballot. The question: to end qualified immunity for police officers!

Are these two cases related? Not really. But I do think they speak to the current Court's priorities. The Justices have decided they will move heaven and earth to make sure that alleged gang members, who are almost certainly subject to removal, cannot be removed. Meanwhile, they shrug when lower courts interfere with the democratic processes of a state. Perhaps the removal of the aliens creates irreparable harm. Well, same for amending the state Constitution. It is extremely difficult to unamend a Constitution; and that change affects millions of Ohioans, not just a handful of aliens who are subject to removal. With all regard to Judge Sutton, there will now be one even-more-imperfect solution, through federal courts interference.

It is often said that the Supreme Court follows the headlines. To be clear, the Supreme Court follows the headlines of the mainstream media. There is a never-ending torrent of hottakes about a constitutional crisis. But most Americans will scratch their heads at this issue and wonder why the Supreme Court is giving so much attention to these alleged gang members. During the debate, Donald Trump said that Haitian immigrants in Ohio were eating dogs, and he still won the state by a large margin. Meanwhile, countless other cases whither on the shadow and merits docket, and the people of Ohio have no recourse. The Court does not have its finger on America's pulse--not even close.

As I wrote in the wee hours of Sunday, "I'm glad that the Chief has his priorities straight."

Last year, a bad guy name Zackey Rahimi got hosed at the Supreme Court and no one cared. Remember this colloquy?

John G. Roberts, Jr.: Well, to the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?

J. Matthew Wright: Your Honor, I would want to know what "dangerous person" means. At the moment --

John G. Roberts, Jr. Well, it means someone who's shooting, you know, at people. That's a good start. (Laughter.)

Rahimi didn't get any due process, and the Court was utterly uninterested in the issue.

Anyway, I'm pretty sure you can find some "dangerous" people in the Bluebonnet detention facility.

This year, the Chief Justice ridiculed as criminal those American citizen hobbyists who make their own guns.

John G. Roberts, Jr. Just what would -- what is the purpose of selling a receiver without the holes drilled in it? Well, I mean, drilling a hole or two, I would think, doesn't give the same sort of reward that you get from working on your car on the weekends.

In A.A.R.P., there are actual criminals who are in this country illegally, with suspected gang affiliations. All of the sudden, John Roberts turns into the second coming of Earl Warren. Then again, Earl Warren risked a constitutional crisis over integration of public schools. That seems like a weighty goal. John Roberts will wage a constitutional crisis over deporting illegal aliens with alleged gang membership? Will anyone in ten years even understand what this case was about?

The decision to intervene on the shadow docket, no matter what Justice Barrett says, is a reflection of how important a Justice thinks a case is. I don't want to hear a word about "cert-worthiness" ever again. This is an individualized judgment, and the four stay factors are just window dressing. The current members of the Court have now signaled what matters to them.

 

"Personal" Liberty Due Process Cases at the Supreme Court Between Carolene Products and Griswold

It is clear the Court decided "economic" liberty cases in this period, but what about "personal" liberty due process cases, apart from the First Amendment?

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United States v. Carolene Products (1938) established a dichotomy between enumerated and unenumerated rights. Under Footnote Four, laws that infringed provisions of the Bill of Rights would be scrutinized closely. By contrast, all other sorts of rights, including liberties protected by the Due Process Clause, would be afforded only rational basis scrutiny. Williamson v. Lee Optical (1955) made that rational basis scrutiny even more deferential. That test became the New Deal settlement on the Due Process Clause. Until it wasn't.

Griswold v. Connecticut (1965) found that a right of privacy could be found in the "emanations" of the Bill of Rights. At least on paper, the Court was trying to stay within the Footnote Four framework, though I'm not sure anyone really believed it. But Griswold made a more important move. To respond to the charge of Lochnerism, Justice Douglas sought to distinguish the Court's past cases. West Coast Hotel was retconned as a repudiation of substantive due process only for economic rights. By contrast, substantive due process was still permissible personal rights cases. Decisions like  Meyers v. Nebraska or Pierce v. Society of Sisters were reaffirmed acceptable as First Amendment decisions, even though both predate the modern incorporation doctrine.

Here is how Justice Douglas attempts to reconcile the doctrine:

Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decline that invitation, as we did in West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U. S. 183, 344 U. S. 195) -- indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 249-250, 354 U. S. 261-263; Barenblatt v. United States, 360 U. S. 109, 360 U. S. 112; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 369. Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

Here is my question. Between Carolene Products (1938) and Griswold (1965), did the Supreme Court decide any "personal" liberty Due Process Cases? I am not including First Amendment cases which, through incorporation, are Fourteenth Amendent cases. I am asking about actual unenumerated claims to "personal" liberty under the Due Process Clause. I realize that the economic/personal line is bit anachronistic, as Carolene Products did not countenance this distinction.

The only case I can think of is Skinner v. Oklahoma ex rel. Wlliamson (1942). This was an unusual penal law that sterilized "habitual criminals." The majority opinion, per Justice Douglas, found the statute violated the Equal Protection Clause. But the analysis seemed to conflate Equal Protection with Due Process:

But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of "equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U. S. 337. Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks.

In Skinner, Justice Stone (the author of Footnote Four) would have applied the Due Process Clause:

And so I think the real question we have to consider is not one of equal protection, but whether the wholesale condemnation of a class to such an invasion of personal liberty, without opportunity to any individual to show that his is not the type of case which would justify resort to it, satisfies the demands of due process. There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned (see United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 152, n. 4) and where the presumption is resorted to only to dispense with a procedure which the ordinary dictates of prudence would seem to demand for the protection of the individual from arbitrary action.

Are there other such cases? Please email me if you can think of other cases.

Politics

The AARP Is Not in Danger of Being Deported as a Tren de Aragua Member

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From yesterday's opinion in the case formerly known as A.A.R.P. v. Trump, but now W.M.M. v. Trump:

The AARP, a nonprofit entirely unrelated to this case, seek leave to intervene to request that the petitioner A.A.R.P.'s pseudonym be changed to A.R.P. and that the case caption be styled as W.M.M., et al. v. Donald J. Trump, et. al. The petitioners and the respondents do not oppose the AARP's motion….

The Court construes the motion to intervene as an agreement by the existing parties to amend the styling of the case caption. Accordingly, the Court amends its prior order granting the motion to proceed under pseudonyms and orders that the petitioners are permitted to proceed under the pseudonyms A.R.P., W.M.M., and F.G.M. [not to be confused with FGM -EV]. In addition, the Court orders that this case will hereafter proceed under the case caption W.M.M., et al. v. Donald J. Trump, et. al.

Well, that clears that up! The heart of the argument in the motion itself was:

Unsurprisingly, this litigation has already received attention from the press and social media. It will surely continue to do so. AARP is concerned that the nomenclature adopted by the caption of this case will create substantial confusion among journalists and the public. Indeed, in the 72 hours since the litigation was filed, it has already resulted in numerous misplaced inquiries to AARP. Both the ACLU and AARP are prominent advocacy organizations on federal policies, albeit in very different domains.

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Free Speech

"The Deportation of Dissent"

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An excellent April 14 article by Jacob Mchangama and Hirad Marami (The Bedrock Principle); here's an excerpt:

The Department of Homeland Security recently announced that U.S. Citizenship and Immigration Services would begin screening the social media posts of "aliens applying for lawful permanent resident status," as well as foreign students and others affiliated with educational institutions deemed linked to antisemitic activity. In particular, USCIS will deny benefits to applicants whose posts indicate support for "antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity."

This move follows several high-profile cases where foreign students — including visa and Green Card holders — were detained, seemingly for their speech or beliefs. This includes a Turkish student at Tufts University, who was seemingly targeted for co-authoring a student newspaper op-ed calling for a boycott of Israel, despite no evidence that she supported terrorism or expressed antisemitism.

The Trump administration is invoking a clause of the Immigration and Nationality Act of 1952 that allows the Secretary of State broad discretion to deport anyone he believes "would have potentially serious adverse foreign policy consequences for the United States." As such, a recently released memo detailing the government's case against the most prominent of the activists, Mahmoud Khalil, refrains from charging him with any crime. On Friday [April 11], a Louisiana immigration judge upheld the Government's decision to deport Khalil. Constitutional scholars debate whether and to what extent the First Amendment protects noncitizens in such cases, and the Supreme Court may eventually weigh in.

But the question is not only constitutional — it is foundational. Is deporting foreigners for expressing disfavored views compatible with a robust commitment to a culture of free speech?

As it turns out, history has a lot to tell us about states that exclude foreigners with controversial opinions and those that welcome non-native dissenters….

The ACLU's Ex Parte Voicemail To Seek An Ex Parte Injunction

Judge Hendrix took no action, but notified the government about the ACLU's action.

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So much happened on Good Friday with A.A.R.P. v. Trump that one item has slipped through the cracks. The ACLU made a request for an injunction after hours on the voicemail of Judge Hendrix's chambers. At the time, I found that request problematic, but had bigger fish to fry. Judge Hendrix has now issued an order addressing that voicemail.

First, it is prohibited to engage in ex parte communications with judges.

The Code of Conduct for United States Judges explains that judges should not permit or consider ex parte communications "or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers." Code of Conduct for United States Judges, Canon 3(A)(4). Even when circumstances may require such communications, the Canon limits such communications to situations where "the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication." Code of Conduct for United States Judges, Canon 3(A)(4)(b).

This rule is well known to anyone who has spent time in a district court. When I was clerking, lawyer would routinely call to ask about cases. As a clerk, the most I could discuss were procedural matters, like scheduling hearings or deadline extensions. If there was any sort of substantive question, my response was "put it in a motion." That way, all of the parties could see the request, have a chance to respond, and there would be a public record. Nine times out of ten, they never filed a motion, because they didn't want to actually make the request public. In rare cases, there was some urgent matter that needed the judge's attention. At that time, the courtroom deputy would try to get at least one lawyer from each party on the phone. When all of the lawyers were present, then and only then would the judge join the conference call. (These were the days before Zoom.) The court reporter was also present. That call was then treated as an official proceeding, that would be docketed. All of these rules are designed to eliminate the risk of ex parte communications about a case.

This sort of knowledge would largely be unknown to appellate lawyers or those who only clerked in an appellate court. It would never happen that any lawyers would ever talk to a circuit judge or their clerks. On rare occasions while clerking at the Sixth Circuit, I would see counsel at oral argument that I knew. To avoid any appearance of impropriety, I would decline to say anything more than "hello."

Second, Judge Hendrix explains that the voicemail left by Lee Gelernt, counsel for the ACLU, would seem to be an impermissible ex parte communication:

The ex parte communication from attorney Lee Gelernt, counsel for the petitioners, does not meet this narrow exception. The voicemail addresses substantive matters, with Mr. Gelernt informing the Court that his "clients at the Bluebonnet Detention Center are being given orders to sign, Alien Enemy orders, and told they may be removed as soon as tonight or first thing in the morning" and that "[t]his is related to the Alien Enemies Act." See attachment. Mr. Gelernt further stated that "[i]t appears that [his clients] are being asked to—to be—to sign papers for their immediate removal." Id. Mr. Gelernt also asked "to talk to the Judge immediately" or "have the Judge issue an order to have [his clients] not removed." Id. These communications go directly to the substance of the petitioners' first motion for a temporary restraining order (Dkt. No. 2) and the subsequent motion for the same relief (Dkt. No. 30). In discussing substantive matters, seeking to talk to the Court immediately, and alternatively seeking to have the Judge issue such an order, the Court believes that Mr. Gelernt could have gained a substantive advantage in the proceedings by obtaining a temporary restraining order and a procedural and tactical advantage by making the request off the record, ex parte, and in the evening.

I think Judge Hendrix's analysis is quite right. The mere fact that the plaintiffs perceive an emergency does not excuse the plaintiffs from following the usual rules. Then again, the Supreme Court ignored a host of procedural rules in this case, so maybe the ACLU thought the call was cool. Process formalism lives in Texas, but not at the Supreme Court.

Third, Gelernt was on notice not to leave voicemails, as the court said all requests had to be made in writing:

Mr. Gelernt left this voicemail even though the Court earlier ordered the petitioners to explain why they should not be required to provide notice to the Court based on the exception laid out in Federal Rule of Civil Procedure 65(b) or otherwise provide notice to the government. Dkt. No. 8 at 1–2. The petitioners did not file a supplemental brief explaining why the Rule 65(b) exception applied and instead provided notice to Acting United States Attorney for the Northern District of Texas Chad Meacham. Dkt. No. 11. The Court thus notes that the petitioners had not established prior to the voicemail any reason to believe that ex parte communications of any kind were appropriate.

Fourth, Judge Hendrix did not issue an order to show cause--unlike Judge Boasberg--but simply provided notice to the government:

The Court therefore enters this Order notifying the government of the contents of this voicemail. The Court did not return Mr. Gelernt's phone call and did not otherwise have any ex parte communications with the petitioners or their counsel. Attached to this Order is a transcript of the voicemail. See Attachment. Should any of the parties believe that a response is necessary, they may move for leave to respond.

Once again, the fine federal judges of Texas exhibit more restraint than the active federal judges in the Beltway. It's still not clear for me why Judge Boasberg would hold an emergency hearing, and interrogate DOJ lawyers, where he clearly lacks jurisdiction to proceed. And for those who may not know, Judge Hendrix was originally nominated by President Obama, though his nomination expired, and he was then appointed by Trump. Likewise, Judge Ramirez was appointed by President Biden. There you have it--Obama and Biden nominees who enforce the rules of procedure in a fair fashion. That is more than can be said for Chief Justice Roberts and the Trump appointees on the Supreme Court.

I still think there is more to this story regarding the timing. There was some forum shopping shenanigans by civil rights groups in the Alabama transgender case. It is not the case that only conservative lawyers bend the rules.

Why is Ed Martin So Interested in Medical Journal Publication Practices?

Just what the doctor ordered - more lawyers and prosecutors meddling with scientific journals!

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[UPDATE 4/23/25] When I wrote this a couple of days ago, I didn't feel the need to provide any concrete examples of the Trump Administration's war on science in the last paragraph, insofar as I assumed that readers are well aware of what has been going on in that sphere. But should you need such examples, Heather Souvaine Horn, over at the New Republic climate desk, has an article today that details just how ferocious Trump's that war has been./DGP]

Ed Martin, the Interim US Attorney for the District of Columbia, has sent out a letter to a rather obscure medical journal, "Chest" - a journal published in Illinois by the American College of Chest Physicians and focused on pulmonary and sleep-related medical research[*].  The letter, dated 4/14/2025, was first reported on the website "Medpage Today," and was, apparently, one of at least three that Martin sent out to different medical journals.

The letter raises a number of interesting questions. Read More

The Timing of the 5th Circuit's Ruling in A.A.R.P. v. Trump

The 5th Circuit and Supreme Court decided the case at *exactly* the same time.

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On Saturday evening, I wrote a series of posts about A.A.R.P. v. Trump. This case rocketed from the District Court to the Supreme Court in approximately twelve hours. Still, the timing of the case remained a bit fuzzy.

For example, the New York Times reported:

The Fifth Circuit issued its ruling in the small hours of Saturday morning, denying the A.C.L.U.'s request for emergency relief as premature.

Steve Vladeck offered this timing:

Then, a little before 1:00 a.m., the Supreme Court stepped in. As noted above, the cryptic order specifies that "The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court." And it notes that (1) the government can respond to the emergency application once the Fifth Circuit rules (which it did even later in the evening—denying emergency relief); and (2) Justices Thomas and Alito dissented, with an opinion from Alito apparently forthcoming.

A reporter told me the Supreme Court press corp was notified at 12:56 a.m.

So which came first? The Supreme Court's ruling or the Fifth Circuit's ruling?

Well, I wasn't certain, so I emailed the Fifth Circuit's clerk, Lyle Cayce, who provided this chronology:

The clerk's office received the Notice of Appeal at 3:02 p.m. and opened the appeal and assigned the matter to a randomly selected panel at 4:33.

The panel returned an order at approximately 11:56 p.m. and the clerk prepared the order using the Friday date. But docketing the order took a few minutes, and the docket entry was not completed until 1203 a.m. on Saturday.

After docketing the order, the emergency duty clerk emailed a copy to the Supreme Court.

I am grateful to Lyle for his many years of dedicated service to the Fifth Circuit.

To make things simple, I will convert all of Lyle's central time stamps to eastern time stamps.

The case arrived to the panel around 5:30 p.m. ET. At some point between 5:30 p.m. and 12:56 a.m. ET, the panel voted that there was no jurisdiction. Recall that there was both a per curiam order, and a concurrence by Judge Ramirez. This was all done without the benefit of any government briefing. We should also account for the fact that this was Good Friday, the Judges had probably already gone home from work, and their clerks were not on call. The panel returned an order at 12:56 a.m. ET. Seven minutes later, at 1:03 ET, the order was docketed, and sent to the Supreme Court.

If my math is right, at 12:56 a.m. ET, the Supreme Court announced its decision, and the Fifth Circuit panel released its decision. The orders were announced simultaneously. There is a fun question about what time actually counts? When the judges issue an opinion? When it is docketed? Released to the press? Who knows. As I said before, we are in Schrödinger's Box territory here.

This brings us back to a point from Justice Alito's dissent.

When this Court rushed to enter its order, the Court of Appeals was considering the issue of emergency relief, and we were informed that a decision would be forthcoming.

The Court knew a ruling was forthcoming. And if I had to guess, the 5th Circuit clerk would have told the SCOTUS clerk that the panel would find no jurisdiction. The Supreme Court likely had this information at hand. But rather than wait a few more minutes, the Justices issued the ruling they did.

Why? My theory: the Chief Justice thought it was better to suggest the Fifth Circuit was being dilatory, and not have to deal with any of the complex jurisdictional issues. There is also the question of whether everyone who voted with the majority knew how quickly the Fifth Circuit opinion was coming.

The Supreme Court cannot blame a lower court for not acting promptly enough, even as a lower court is acting diligently and ruling in time for appellate review.

I think there is a problem here that warrants further investigation by the press. There are hundreds of reporters who check out which flags are in front of Justice Alito's house. Maybe someone can check out the communications between the Fifth Circuit and the Supreme Court.

Ultimately, I don't think this affects the Marbury issue. Many people have cited a host of statutes that permit cert before judgment and the like. But in all those cases, there is still some lower court judgment to review. If any statute purports to grant what "appellate" jurisdiction that is in fact "original" jurisdiction, then we have a Marbury problem. Has there ever been a case where the district court did not issue any judgment, the circuit court (at the time the court voted) took no action, and the Supreme Court still exercised jurisdiction? I think the answer is no, but I welcome any suggestions.

Politics

Plaintiff Alleges Her Children Were "Trafficked by Members of the Democratic Party's Babylonian Talmud-Adherent Ashkenazi Jewish Cartel-Controlled Foster Care Sex Trade"

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A short excerpt from Magistrate Judge Paul Evangelista's long Report and Recommendation Mar. 31 in Uzamere v. Gregg (N.D.N.Y.), which was adopted Thursday by Judge Anthony Brindisi:

To the extent it can be deciphered, it appears plaintiff's claims all stem from her belief of the existence an enormous conspiracy in which various judges, officials, attorneys, and people in positions of leadership, government or otherwise, seek to cause her great misfortune based on her belief that judges or people in government who have Ashkenazi Jewish heritage—or whom she believes to have such heritage—are violent, racist pedophiles. She asserts that she is being targeted by those individuals and entitles, or supporters of those individuals and entities, out of their racism against her, a desire to quash her public sharing of her beliefs, and—somehow—perverse sexual gratification….

Plaintiff's amended complaint is 142 pages in length with 2,143 pages in appended exhibits…. Plaintiff states that she:

bring[s] this action to permanently enjoin the defendants, who, as anti-black bigots and members of a violent, seditious, and rabbi-influenced ethnoreligious cartel from further employing government institutions' termination mechanisms to engineer antitrust restraints on my constitutional right to receive congressionally mandated, government-funded financial, educational and protective services which the defendants now treat as Jew-owned merchandise that is withheld from me to subject me to public defamation/public denigration; political persecution; sexually sadistic law enforcement terrorism, educational and economic deprivation to which Jews subject African Americans, Ethiopian Jews and Palestinians; and to enforce the Babylonian Talmud's espousal of the hatred of people of African descent; the Babylonian Talmud's espousal of Jews' right to lie to non-Jews in court settings; the Babylonian Talmud's espousal of Jews' right to have sex with children; the Babylonian Talmud's espousal of Jews' right to subject non-Jews to theft, kidnapping and murder with impunity; and the Babylonian Talmud's prohibition against reporting the tortious and criminal acts committed by lawbreaking Jews as an actionable act of antisemitism in a court of law, for which Jewish leadership's anti-gentile, predatory acts are protected by the International Holocaust Remembrance Alliance use of the 'working definitions of antisemitism' to duplicitously place Jews in a perpetual state of Munchausen Syndrome by proxy victimhood as a cover … [.]

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"Tinder Backgrounds" to Appear in Georgia Law Review

Why Dating Apps Should Have ID Verification and Mandatory Background Checks

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Dating apps continue to make headlines for how little protection they provide against repeat violent offenders and arguably enable them. I have a law review article entitled "Tinder Backgrounds" that is forthcoming in the Georgia Law Review (and whose draft is available here) trying to address this issue. Here is the abstract:

In an era in which dating apps have become the primary matchmaker for millions of Americans, the lack of basic safety requirements for these platforms is both striking and dangerous. This Article explores how the rise of dating apps has created unprecedented opportunities for predators to exploit victims through deception and violence, while leaving those victims with virtually no legal recourse. Although dating apps have become critical infrastructure for modern relationship formation, their operators face minimal legal obligations to verify user identities or screen for unsafe individuals. Users have attempted to fill this regulatory void through self-help measures like crowdsourced warning groups on social media, but these informal solutions expose participants to defamation liability while failing to provide systematic protection.

As the Supreme Court considers ID verification requirements for adult websites in Free Speech Coalition, Inc. v. Paxton, this Article argues that similar measures—combined with mandatory background checks—are actually of greater importance in the dating app context where physical safety is at stake. While dating apps match users who would otherwise never meet, this convenience brings heightened risks when perpetrators can easily misrepresent their identities and histories. This Article proposes a federal framework requiring dating apps to verify and store user identities through government-issued IDs and conduct criminal background checks. This approach would help to prevent sexual, financial, and other predation while preserving the core benefits that make online dating valuable. The Article demonstrates why traditional objections to regulating intimacy and dating markets hold less force in an era of industrialized matchmaking, and how existing precedents support reasonable verification requirements that protect user safety as technology-assisted deception (including via artificial intelligence) continues to evolve. Through carefully calibrated regulation focused on prevention rather than after-the-fact remedies, the law can better protect the many individuals who rely on dating apps to find connection.

Free Speech

Brief from Prof. Justin Driver (Yale) and Me in School Curriculum / Religious Opt-Out Case

"This Court should not announce an opt-out right for religious objectors under the Free Exercise Clause that its precedents would foreclose for students objecting to public-school curricula under the Free Speech Clause."

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We argue, in an amicus brief filed in Mahmoud v. Knight (now pending before the Supreme Court), that the Free Exercise Clause doesn't secure a presumptive right to opt out of K-12 public school curriculum elements to which the parents or children have a religious objection. Many thanks to I. Rodgin Cohen, Amanda Flug Davidoff, Daniel J. Richardson, and Harrison J. Tanzola (Sullivan & Cromwell LLP), who wrote the brief on our behalf. Here's the Summary of Argument:

Petitioners ask this Court to hold that parents have a constitutional right to interfere with the routine curricular decisions of public schools. Whether this Court answers that question by applying its existing free-exercise precedents or—as members of this Court have recently suggested—by considering analogies to free-speech doctrine, see Fulton v. City of Phila., 593 U.S. 522, 543 (2021) (Barrett, J., concurring); id. at 565 n.28 (Alito, J., concurring in the judgment), the answer is the same: The First Amendment does not shield public-school students from the mere exposure to ideas that conflict with their personal views, whether secular or religious.

Every day, thousands of public schools throughout the United States make countless decisions about the best way to educate their students. Those decisions reflect the input of educators, parents, and local communities. They thus incorporate competing views about both the materials that should be included in public-school curricula and the role of public education in civil society. In a country as diverse as the United States, those decisions also often expose students to ideas that may be in tension with their deeply held beliefs.

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Donald Trump

Free Press Symposium on "Is Donald Trump Breaking the Law?"

The degree of agreement among participants with major ideological diferences is striking.

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trump tariff
Lex Villena; Midjourney

Today, the Free Press published a symposium on "Is Donald Trump Breaking the Law?"

Participants include (in addition to myself), several prominent constitutional law scholars and legal commentators : Jonathan Adler (Case Western/Volokh Conspiracy co-blogger), Aziz Huq (University of Chicago), Larry Lessig (Harvard), Andrew McCarthy (National Review), Michael McConnell (Stanford), Ed Whelan (Ethics and Public Policy Center), and yours truly.

The editors of FP summarize the contributions, as follows:

The consensus is striking—and perhaps surprising, given the ideological diversity of these contributors. All agreed that the president's legal tactics reflect a dangerous willingness to ignore statutory and constitutional constraints—and that he must be reined in quickly.

Speaking for myself alone, I think I have never before been part of an ideologically diverse symposium on a  contentious topic where I agreed with over 90% of what the other participants said. But I do here, despite major ideological differences with all the others (except, probably, Adler). If I have a disagreement, it may be with Larry Lessig's argument that the best analogy to Trump's behavior is that of Mafia bosses. I think that comparison is a bit unfair to the Mafiosi, and the better analogy is to various nationalist authoritarians and wannabe authoritarians. But I do agree that what Lessig says is illegal is in fact so.

It's perhaps notable that two of the contributors (Huq and Lessig) are far to the left of me, and two others (McCarthy and Whelan) are far to the right. McConnell is also substantially more conservative than I am, but probably to a lesser degree than McCarthy and Whelan.

Skeptics can argue that FP cherry-picked the participants. But it's worth noting that Free Press is generally viewed as a right-leaning "anti-woke" publication. They've even been criticized for being excessively friendly to the MAGA movement and overly tolerant of its excesses.

Here's an excerpt from my own contribution:

The second Trump administration is trying to undermine the Constitution on so many fronts that it's hard to keep track. But three are particularly dangerous: the usurpation of Congress's spending power; unconstitutional measures against immigration justified by bogus claims that the U.S. is under "invasion"; and assertions of virtually limitless presidential power to impose tariffs….

Trump has claimed the power to "impound" federal funds expended by Congress, and to impose conditions on federal grants to state governments and private entities that Congress never authorized. The Constitution gives the power of the purse to Congress, not the president….

On immigration, Trump has issued an executive order claiming illegal migration amounts to an "invasion," thereby authorizing him to suspend most legal migration. The order is at odds with overwhelming evidence indicating that, under the Constitution, "invasion" means an "operation of war" (as James Madison put it), not mere illegal border crossing or drug smuggling. The invasion order threatens not only immigrants, but U.S. citizens….

Similar bogus invocations of "invasion" have been cited by Trump to justify invoking the Alien Enemies Act of 1798—legislation that can only be used in the event of war, "invasion," or "predatory incursion"—to deport Venezuelan migrants without due process to imprisonment in El Salvador….

The administration's claims that courts are powerless to order the return of illegally deported and imprisoned people menace not only immigrants, but American citizens. Under Trump's logic, they, too, could be deported and imprisoned abroad, and courts could not order their return.

Finally, Trump has usurped congressional authority over international commerce to impose his massive "Liberation Day" tariffs, thereby starting the biggest trade war since the Great Depression, and gravely damaging the U.S. economy….

 

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