The Volokh Conspiracy

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

The basic story of the holiday of Purim, which starts Thursday night, is this. The King of the Persian empire takes a Jewish bride, Esther, who conceals her Jewish identity. Meanwhile, the king's evil vizier, Haman, plots a genocide of Jews throughout the empire, and wins the king's blessing to undertake the massacre on the 14th day of the month of Adar. Esther's uncle Mordechai gets wind of the plot, and beseeches Esther to intervene. Esther persuades the king to execute Haman, but the decree approving the massacre cannot be revoked. The king instead gives Jews throughout the empire the right to defend themselves, and the following transpires:

For the Jews that were in Shushan gathered themselves together on the fourteenth day also of the month Adar, and slew three hundred men at Shushan; but on the prey they laid not their hand. But the other Jews that were in the king's provinces gathered themselves together, and stood for their lives, and had rest from their enemies, and slew of their foes seventy and five thousand, but they laid not their hands on the prey on the thirteenth day of the month Adar; and on the fourteenth day of the same rested they, and made it a day of feasting and gladness

The text could not be clearer that the Jews rose in self-defense, and killed not random people, but the enemies who were preparing the genocide.

Nevertheless, for centuries antisemites have distorted the text to suggest that Jews were inherently bloodthirsty chauvinists who sought to massacre the people around them. The Nazis, for obvious reasons, particularly loved to rely on a story about Jews fighting back against genocidal enemies to libel Jews. The holiday loomed so large in Nazi consciousness that just before Hitler henchmen Julius Streicher was hanged, he shouted out, "Purimfest 1946!" But you don't have to take my word for it:

So what sort of vicious antisemite would spread similar libels about Purim in 2025? For one, New York Times writer Peter Beinart. Beinart has evolved over the years from "liberal Zionist" to "non-Zionist" to "anti-Zionist" to his later iteration, which is "deranged antisemitic anti-Zionist."

Here he is in a column in the Guardian, based on his recent book, explaining Purim in the same terms as the Nazis and other antisemites:

On the 13th day of the month of Adar, the Jews kill 75,000 people. They declare the 14th "a day of feasting and merrymaking". With the blood of their foes barely dry, the Jews feast and make merry. That's the origin of Purim.

Purim isn't only about the danger Gentiles pose to us. It's also about the danger we pose to them.

For most of our history, when Jews had little capacity to impose our will via the sword, the conclusion of the book of Esther was a harmless and even understandable fantasy. Who can blame a tormented people for dreaming of a world turned upside down? But the ending reads differently when a Jewish state wields life and death power over millions of Palestinians who lack even a passport. Today, these blood-soaked verses should unsettle us. When we recite them aloud in synagogue, we should employ the anguished, sorrowful tune in which we chant the book of Lamentations, which depicts the destruction of our ancient temples.

Instead, most of us ignore the violence that concludes the Esther scroll. Some contemporary Jews justify it as self-defense. On the far right, some revel in it. But they're the exception. More often, we look away. We focus on what they tried to do to us.

No, Peter, we don't look away. According to the story (which is, fwiw, historical fiction), armed mobs of 75,000 people came to murder the entire Jewish population of the Persian Empire, who were innocent of any wrongdoing. The Jews killed them before they could do it. Hooray! If only someone had done this to the Nazis in 1938, we could be celebrating Purim II, instead of mourning on Yom HaShoah.

If this doesn't cost Beinart his job on the New York Times op-ed page, it's a terrible sign of how antisemitism has been normalized in elite discourse.

From Northwestern law professor Andrew Koppelman (The Hill) (this is the unexpurgated version that I received by e-mail, so I'm including it instead of just linking to the Hill version):

John Wilkes Booth was a racist murderer, but that apparently wasn't the worst thing about him. The worst thing was that he used "the N-word."

Isn't that a bizarre thing to say? Not too bizarre, evidently, for the social media campaign that pressured a Northwestern University theater group into cancelling its production of Stephen Sondheim's classic musical "Assassins." The cancellation was part of a misguided effort to fight racism, and it is a window into how counterproductive such efforts have sometimes become.

"Assassins" is a deeply ironic depiction of America's presidential assassins, attempted and successful, and their place in the national imagination. It flopped when it first opened on Broadway in 1990 but has since been recognized as one of Sondheim's major works.

At one point in the show, Booth, who killed Abraham Lincoln, calls his victim a "niggerlover." It comes at the end of a soliloquy full of the familiar bilge about the noble lost Southern cause, and it is intended to shock the audience. It does. No substituted euphemism could have the same effect. It is an ugly moment, and it is historically accurate. But racist murder is an ugly thing.

Free Speech

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3/12/1889: Justice John Campbell dies.

Politics

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A petition for rehearing en banc has been filed seeking review of the Fifth Circuit's panel decision in United States v. Peterson, which held that noise suppressors (aka silencers or mufflers) are not "Arms" protected by the Second Amendment. As I recently posted about the case here, the decision overlooked that millions of law-abiding Americans use suppressed firearms for ear protection and reduction of recoil, attributes just as relevant to the scope of the Second Amendment as other important firearm features.

The Court has ordered the United States to file a response by March 17. This is an opportunity for the Attorney General to comply with the President's Executive Order to examine all actions of executive departments and to present a plan to protect the Second Amendment rights of Americans. That includes review of "The positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their Second Amendment rights."

The Brief of the United States previously filed under Attorney General Garland is the familiar excuse list of why the Second Amendment never impedes any restriction: suppressors are not "bearable arms," but even if they are, they are "dangerous and unusual," but even if they're not, the registration requirements of the National Firearms Act do not "infringe" on Second Amendment rights, and in any event, the registration requirements are analogous to historical regulation of commerce in firearms.

The same excuse list could be applied to any other firearm feature, including those that anti-gun advocates depict with exaggerated rhetoric to dupe judges who are unfamiliar with firearm technology. Such false depictions including the horrifying conspicuously-protruding pistol grip on a rifle, the devastating .223 caliber cartridge that blows up people to pieces, or the sniper scope designed to take out enemies two miles away.

The United States should file a response to the petition to rehear that addresses the very serious arguments made in the petition and should change the position of the Merrick Garland-run Department of Justice. It should acknowledge that suppressors reduce but do not eliminate the noise emitted from a firearm, which supports the safe and effective use of a firearm by reducing damage to one's hearing. Millions of Americans possess and use suppressed firearms for target practice, self-defense, and hunting, which thus meet Heller's common-use test.

The panel acknowledged that the case was a matter "of first impression in [this] circuit," but with little reasoning held that suppressors are afforded no Second Amendment protection whatsoever. The panel adopted a broad categorical rule: certain firearm parts, which the panel labeled as "firearm accessories," are not "covered by the plain text of the Second Amendment" because they do not fire projectiles. Neither do ammunition magazines, adjustable stocks, sights, and braces, but they are standard parts that are used to assemble a firearm.

More fundamentally, the court ignored that suppressed arms are "arms" under the plain text. The court treats suppressors as optional accessories that do not fire bullets. The court did not consider that while many suppressors may be installed on and removed from threaded barrels or quick attachable/detachable locks, others are integral with the barrel. Generally, an integral suppressor is permanently fixed to and is part of the barrel, and it may not be removed from the barrel. For more details, see "The Truth About Integral Suppressors."

There are plenty of firearms with integral suppressors on the market. Examples include the S&W SW22 Victory pistol and the Ruger 10/22 rifle. Both being in .22 rimfire, they are excellent firearms to use to train beginners as well as to use for target shooting and hunting. To reduce chaos and preserve hearing, a homeowner might choose an integrally-suppressed 9 mm pistol for self-defense. Given that the suppression feature is part of the functioning firearm itself, just as are the firing pin and the ejector, that feature cannot be characterized as a mere "accessory."

As for firearms with attached suppressors, it no more makes sense to depict them as "accessories" than it would be to call a scope attached to a firearm a mere "accessory." The former is a suppressed firearm and the latter is a scoped firearm. These features are integrated into the functioning of the firearm and they are part of the firearm. The fact that they can be removed and the firearm can still be fired no more removes them from Second Amendment protection than would the fact that a rifle stock can be removed and the rifle will still fire.

The Supreme Court has provided no categorical exception for "accessories." Bruen held that the "general definition [of 'arms'] covers modern instruments that facilitate armed self-defense." That necessarily includes instruments equipped with various features, whether characterized as so-called "accessories" or not, that affect the functionality of a firearm. Indeed, by restricting suppressors, the NFA really is restricting suppressed firearms.

Heller's "common-use" test applies generally to firearms without regard to whether they are suppressed or unsuppressed. Heller held that handguns in general are in common use by law-abiding persons for lawful purposes, rendering the District of Columbia's handgun ban unconstitutional. That rule would not countenance a ban on subcategories of handguns, such as those with a semiautomatic function, a red-dot sight, a magazine well for a detachable magazine, or a suppressor. With or without those features, they are handguns.

In support of its opinion, the panel cited Ninth and Tenth Circuit opinions that predated Bruen, an unpublished Fourth Circuit opinion, and two opinions from district courts in other Circuits. None of those decisions seriously address the Supreme Court's statement in Bruen that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

Textually, it is undisputable that a suppressed firearm is an "Arm." The Second Amendment is not restricted to a bare-bones contraption that will expel a projectile and no more. Moreover, the Constitution implicitly protects those closely related acts necessary to their exercise. That's why, for instance, shooting ranges have Second Amendment protection, as Ezell v. City of Chicago (7th Cir. 2011), held.

En banc review would allow the Court to consider the viewpoints of other judges that are inconsistent with the panel decision. The panel in this case held that "accessories" are not protected, while Judge Willett, concurring in Mock v. Garland (5th Cir. 2023), reasoned that the use of "accessories that make an otherwise lawful weapon safer" likely is "protected Second Amendment 'conduct.'" He was repeating ATF's use of the term "accessories" to describe attachments on pistols, not suggesting that the term described a separate category other than the features of a firearm.

As the petition concludes, the case presents exceptionally important questions. Suppressed firearms are among the most common, popular, and safe firearm designs in the United States. But the panel decision went far beyond the issue of suppressers. As the petition states:

The panel laid down a broadly stated rule that all firearm "accessories" are due no Second Amendment protection…. If that ruling were to stand, the Government could ban all manner of integral components of firearms, effectively rendering a nullity of the fundamental Second Amendment right under the guise of banning "accessories." All the while, the government could continue to prosecute individuals like Peterson on the assertion that such parts are firearms. The Second Amendment's protections are not so flimsy.

The response to the petition by the United States should flip positions from those advocated by the anti-Second Amendment previous Administration. It should unabashedly confirm that suppressed firearms are protected arms under the Second Amendment. It should acknowledge that Heller's common-use test is the proper test in arms prohibition cases. And it should concede that restrictions on suppressors do implicate the text of the Second Amendment, even if it then argues that history justifies the NFA's taxation and registration requirements and that it should be up to Congress to change that.

Stephen Halbrook is a Senior Fellow with the Independent Institute. His latest books are America's Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? He is also author of The Founders' Second Amendment, Securing Civil Rights, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France. He has written over 30 law review articles and has testified in Congressional hearings on firearm law bills. He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, National Association of Criminal Defense Lawyers, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. In D.C. v. Heller, he filed an amici curiae brief on behalf of a majority of members of Congress.

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I treasure the Hamilton musical on so many levels. In addition to the wonderful score and fluid lyrics, the story is so well-researched. For example, in Take A Break, Alexander Hamilton and Angelica Schuyler Church express their affection for one another with special attention to grammar.

Alexander writes to Angelica:

My dearest, Angelica
"Tomorrow and tomorrow and tomorrow
Creeps in this petty pace from day to day"
I trust you'll understand the reference to
Another Scottish tragedy without my having to name the play
They think me Macbeth, and ambition is my folly
I'm a polymath, a pain in the ass, a massive pain
Madison is Banquo, Jefferson's Macduff
And Birnam Wood is Congress on its way to Dunsinane

Angelica then writes back to Alexander, and notices his punctuation:

My dearest Alexander
You must get through to Jefferson
Sit down with him and compromise
Don't stop 'til you agree
Your fav'rite older sister
Angelica, reminds you
There's someone in your corner all the way across the sea

In a letter I received from you two weeks ago
I noticed a comma in the middle of a phrase
It changed the meaning. Did you intend this?
One stroke and you've consumed my waking days
It says:

"My dearest Angelica"

With a comma after "dearest." You've written

"My dearest, Angelica."

There is a big difference between "My dearest Angelica" and "My dearest, Angelica."

For some time, I have tried to track down the primary source behind that lyrics. Professor Joanne Freeman at Yale kindly pointed me in the right direction. (Lin-Manuel Miranda received a lot of the Hamilton documents from Freeman's collection of Hamilton papers while he was writing the play.)

Here's what happened.

On October 2, 1787 (a few weeks after the Constitution was signed), Angelica wrote to Hamilton:

Indeed my dear, Sir if my path was strewed with as many roses, as you have filled your letter with compliments, I should not now lament my absence from America: but even Hope is weary of doing any thing for so assiduous a votary as myself.

The comma came after "dear."

On December 6, 1787, Hamilton wrote back to Angelica. At the time, things were busy. The day before, Hamilton published Federalist #17, and the following day, Delaware became the first state to ratify the Constitution.

You ladies despise the pedantry of punctuation. There was a most critical comma in your last letter. It is my interest that it should have been designed; but I presume it was accidental. Unriddle this if you can. The proof that you do it rightly may be given by the omission or repetition of the same mistake in your next.

I wish I could write like that.

On November 8, 1789 (about a month after the Judiciary Act of 1789 passed), Hamilton wrote to Angelica:

Adieu Dear Angelica! Remember us always as you ought to do—Remember us as we shall you

Your ever Affect friend & brother

And on February 4, 1790 letter, Angelica replied, calling Hamilton "dear friend" with friend emphasized.

Adieu my dear Brother, remember me affectionately to Eliza. I have this moment received her letter, and have received three from you.4 I accept this attention on your part as I ought, and if in return I cannot give you any agreeable information, I can at least give you the History of my Mind, which is at present very much occupied by a very great, and very amiable personage. Adieu my dear friend.

A. Ham. got friend-zoned!

This mystery was unriddled.

From Moshoures v. City of North Myrtle Beach, decided today by Fourth Circuit Judge Toby Heytens, joined by Judges Albert Diaz and Julius Richardson:

A city ordinance makes it a crime "to broadcast obscene, profane or vulgar language from any commercial property" above certain volumes at certain times. A bar owner sued, arguing the ordinance violates the First Amendment. This appeal involves only the portion of the ordinance restricting "vulgar" language. [The district court enjoined the "profane" language restriction, and the City didn't appeal that decision. -EV] …

While restricting noise generally, the ordinance creates special rules for "[t]he use of sound equipment to broadcast obscene, profane or vulgar language" from specified locations. The ordinance also defines "obscene," "profane," and "vulgar." As defined by the ordinance:

Obscene means description of sexual conduct that is objectionable or offensive to accepted standards of decency which the average person, applying North Myrtle Beach community standards would find, taken as a whole, appeals to prurient interests or material which depicts or describes, in a patently offensive way, sexual conduct or genitalia specifically defined by S.C. Code Ann. § 16-15-305, which, taken as a whole, lacks serious literary, artistic, political, or scientific value….

Profane means to treat with irreverence or contempt, crude, filthy, dirty, smutty, or indecent….

Vulgar means making explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions.

Free Speech

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I recently wrote about a Supreme Court joke on the Simpsons. Now, Family Guy has taken on SCOTUS.

In this episode, Justice Brett Kavanaugh visits the Pawtucket Patriot Brewery where Peter Griffin works. Kavanaugh runs into the brewery screaming, "I love beer" and is panting in excitement.

Peter asks why Kavanaugh keeps screaming "I love beer." He replies, "It's kinda how I got my job." Peter and Kavanaugh proceed to do a double keg stand. Peter says "you're pretty cool for a Supreme Court Justice." Kavanaugh replies, "That's all I want people to say."

I wrote a series of posts about the Supreme Court's decision in the USAID case. Most of the critics focused on my criticisms of Justice Barrett, but as could be predicted, they completely missed why I was criticizing Justice Barrett.

Here are the facts. The Solicitor General made two requests. First, the government sought an immediate administrative stay of the District Court's ruling. Second, the government sought to vacate the order issued by the District Court. Chief Justice Roberts promptly granted the temporary administrative stay. A week later, the Court, by a 5-4 vote, vacated the temporary administrative stay. The Court also denied the government's application.

Consider what the Court stated:

THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court. The application is denied. Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines. The order heretofore entered by THE CHIEF JUSTICE is vacated.

Justice Alito dissented from the denial of the application to vacate the order:

JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, dissenting from the denial of the application to vacate order.

I see three significant problems with the majority "order," if I can even call it that.

First, if the only action taken was to vacate the temporary administrative stay, what basis is there to instruct the District Court on how to take some action in the future: "the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines." The Court vacates a stay because the Court declines to exercise further supervision of the lower court. By vacating the stay, the Court eliminates its power to supervise the lower court.

Second, given that the Court denied the government's motion, it is not clear how it would have jurisdiction to say anything at all about the case. The Court has jurisdiction under the All Writs Act by granting relief to an aggrieved party. The Court cannot exercise the judicial power in the abstract, without even granting the writ. The Supreme Court lacks any sort of free-floating authority to issue commands or suggestions.

Third, if the Court is giving an instruction to the lower court, without actually availing itself of appellate jurisdiction, then the Court issued an advisory opinion. I made this point last week:

Third, given that the Court denied the application, any discussion of the merits would be an advisory opinion. Yet the Court strongly hints that the lower court was wrong on the merits. "Clarifying" the obligations of the government is a nice way of saying the prior ruling was not quite clear enough. If the order against the government was insufficiently clear, the remedy would be to vacate the lower court opinion with instructions to clarify. (Then again, the Supreme Court "clarified" Bruen in Rahimi by partially overruling it, so words really have no meaning on the Roberts Court.) But the Supreme Court asked the District Court to clarify its ruling, without ordering it to do so. The Supreme Court cannot make suggestions. It can only issue orders.

I have racked my brain, and cannot think of a case where the Supreme Court gave a substantive instruction to a lower court without also granting some form of relief. In the Hampton Dellinger case, the Court did nothing--neither grant nor deny the motion. It simply held the motion in abeyance, which was procedurally proper, if unusual. On the emergency docket, the Court will sometimes deny the application with the understanding that the lower court will move promptly. I suppose those instructions are acceptable, since there is no actual lower court ruling to affirm or reverse. The Court is denying the request to order the lower court to rule more quickly. Moreover, in an emergency posture, where the issue may become moot if there is too much delay, the Court should have power to protect its own jurisdiction. In candor, I think it would be better for the Court to grant the writ solely for the purpose of sending the "hurry up" instruction to the lower court. But I'm not sure it is needed. If I'm missing any obvious case, please email me. I suspect if there is an example here or there from Chief Justice Roberts, it will suffer from similar problems.

But here, the Supreme Court told the lower court to pare back its ruling. And so it did. Yesterday, Judge Ali issued a lengthy opinion explaining what funds should be paid out. Would he have done any of this absent the Supreme Court's admonition? I am doubtful. You see, the Court was able to effectively vacate a lower court opinion without saying so. Why would it do that? My theory: the Chief Justice and Justice Barrett do not want to be seen as ruling for Trump by granting the application, so instead they denied the application, hoping that the lower court narrows the ruling against Trump, thereby giving Trump a victory. The difference between the majority and Justice Alito's dissent is not as large as it may seem. But the dissent at least had the forthrightness to not pass the buck to the lower courts. This is the inversion of Article III I wrote about.

To use an example, could the Supreme Court deny a petition for a writ of certiorari, but in the same order say the lower court should do X, Y, and Z in future proceedings? Of course not. By denying the writ, the Court declines to exercise jurisdiction over the case. That is the end of the matter, full stop.

Now, it is true that individual Justices routinely dissent from the denial of certiorari, and offer guidance of what the lower court can do. In Texas v. Hopwood, Justice Ginsburg concurred in the denial of certiorari. In American Tradition Partnership v. Bullock, four Justices dissented from the grant of certiorari. I've never fully understood the legal basis for dissentals and concurrals, but I do not see any jurisdictional problems. The individual member is complaining that the Court should have exercised jurisdiction, but in the absence of that grant, the Justice is telling the lower court how he or she sees the issue.

But you will never see a dissent from the denial of certiorari from four or five justices. Why? If that many Justices agree, then the case will be granted. Yet this is basically what happened in the USAID case. Five members of the Court effectively denied the exercise appellate jurisdiction, but still gave an instruction to a lower court. This was an abuse of process. And I doubt anyone in the majority even noticed. That's what happens when you are more focused on these creative compromises then deciding the legal issues presented.

I think Justice Barrett's decision to join this majority opinion was a fundamental mistake. It would have been far better for the Court to simply vacate the temporary stay and deny the application, with a single justice concurring about what should happen on remand. In a 5-4 decision, lower court judges can take the hint from the deciding vote. That would have been procedurally proper. But no one wanted to stick their neck out on this one. Instead, the five members of the majority shirked their responsibility, hoping the lower court would clean things up.

My criticism of Justice Barrett has nothing to do with loyalty to Trump or anything like that. My writings long predate the 2024 election. Instead, my opinion focuses on the judicial role. Chief Justice Roberts long ago transitioned from deciding constitutional questions based on law to arranging these faux compromises that result in rewriting statutes and ignoring settled rules of procedure. He does this so much it has become second-nature. If any other Justice adheres to the John Roberts school of judging, I will offer them the same career advice.

I will have much more on this issue in due course.

Update: I made a significant error in this post, which I have corrected. The Court did deny the order; in my earlier post I wrote that it remained pending. The bottom line conclusion about the advisory opinion, though, I think still stands. I try to fix my errors as soon as they are pointed out, and I am grateful for those helpful emails.

From Copeland v. Netflix, Inc. (D. Del.), decided today by Third Circuit Judge Stephanos Bibas, sitting by designation:

Fame has many costs. One comes from the First Amendment: It shields publishers from lawsuits when they report inaccurately about public figures involved in public controversies (as long as they do so without "actual malice"). This case begins and ends with that First Amendment shield.

While R. Kelly was being tried for sex crimes and child abuse, his personal assistant Diana Copeland went on national TV to discuss what she had seen. Then a documentary about Kelly discussed Copeland's supposed role in his crimes.

Because of this negative coverage, Copeland sued the show's producers and distributors for defaming her, appropriating her name and likeness, and committing related torts. But she had thrust herself into this public controversy and became a public figure in it by appearing on national TV. So she must plausibly plead that defendants had so-called "actual malice"—that they knew (or recklessly disregarded) that the statements featured in the show were false. But she does not. So I now dismiss her defamation claim and other tort claims that recycle it. Plus, she has failed to plausibly plead that defendants used her name and likeness for its unique value (as opposed to its newsworthiness). So I also dismiss her claim of appropriation….

The opinion follows existing First Amendment law, but also illustrates one interesting feature of that law: It essentially imposes a tax on constitutionally protected activity ("thrust[ing one]self into [a] public controversy"), by concluding that people who engage in such activity surrender part of their common-law protections against libel. Had Diana Copeland not chosen to go on a national TV program to discuss the R. Kelly controversy, she may well have had the broader libel law protections offered to private figures (under which she could recover proven compensatory damages on a showing of mere negligence by the defendants, not "actual malice").

But once she entered into the public debate, she lost those broader protections. And though in principle she could prevail by showing the defendants knew the statements were false (or were likely false), in practice that's very hard to do, because she can't even get discovery unless she can offer "enough facts to state a claim to relief that is plausible on its face." Here's how this played out:

Free Speech Libel

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The Judicial Conference of the United States has again asked Congress to create additional judgeships to address burgeoning caseloads in many courts. Specifically, the Judicial Conference has recommended the creation of two additional seats on the U.S. Court of Appeals for the Ninth Circuit and 69 additional district court seats.

From the release:

District court filings have grown by 30 percent since 1990, when the last comprehensive judgeship bill was enacted. Since 1991, the overall number of authorized district court judgeships increased by only four percent.

Burgeoning caseloads can lead to significant case delays. Delays result in increased costs for litigants and raise access to justice concerns, especially in civil cases that may take years to get to trial. Over the past 20 years, the number of civil cases pending more than three years rose 346 percent, from 18,280 on March 31, 2004, to 81,617 on March 31, 2024.

In developing judgeship recommendations, the Conference and its Committee on Judicial Resources use a formal survey process to study and evaluate Article III judgeship needs. Before a judgeship recommendation is transmitted to Congress, it undergoes several levels of careful consideration and review. The surveys are conducted every two years and the resulting recommendations are based on established criteria, including current workload factors and empirical standards.

In fiscal year 2024, weighted filings, which account for the different amounts of time district judges require to resolve various types of civil and criminal actions, were above 500 per judgeship in 20 of the 25 district courts where the Conference is recommending additional judgeships.

In 12 of these courts, weighted filings exceeded 600 per judgeship and in five courts filings were greater than 700 per judgeship. The Conference generally requires district courts to have over 430 weighted filings per judgeship to recommend additional judgeships. Weighted filings data for each district court are published in Federal Court Management Statistics.

The specific recommendations are here.

Last year, Congress passed the JUDGES Act with bipartisan support to create additional judgeships recommended by the Judicial Conference. The Federal Judges Association and Federal Bar Association both endorsed the bill, but President Biden vetoed the legislation because it created seats in districts in which Senators had blocked confirmations and would have created too many seats for his successor to fill.

Ideally, Congress would approve this recommendation quickly, with legislation that staggers the creation of the new seats over the next eight years. In this way, Congress could meet the need of the judiciary while minimizing any partisan advantage from the creation of new seats. That is what Congress tried to do last year. We will see if they try again.

Today the U.S. Court of Appeals for the First Circuit rejected the Trump Administration's motion for a stay pending appeal of a district court's universal preliminary injunction against enforcement of President Trump's Executive Order curtailing birthright citizenship. Other circuit courts have similarly ruled.

Interestingly enough, the Department of Justice did not try to argue that it was likely to prevail defending the merits of the Executive Order. Rather, the government's briefs maintained that it was likely to prevail challenging the standing of the state plaintiffs. The court did not accept this argument however.

Chief Judge David Barron wrote for the panel. From his opinion:

The Government expressly declines to make any developed argument that it is likely to succeed on appeal in showing that the Executive Order is either constitutional or compliant with 8 U.S.C. § 1401. Nor does the Government contest that, for more than a century, persons in the two categories that the Executive Order seeks to prevent from being recognized as United States citizens have been so recognized. Instead, the Government contends that it can make the requisite showing for a stay of the preliminary injunction even without developing an argument to us that the Executive Order is lawful and even though the enforcement of the Executive Order would dramatically break with the Executive Branch's longstanding legal position and thereby disrupt longstanding governmental practices. See, e.g., Legis. Denying Citizenship at Birth to Certain Child. Born in the U.S., 19 Op. O.L.C. 340, 340-47 (1995). The Government's chief contention in so arguing is that, as to the first Nken factor, it has made a "strong showing" that the Plaintiff-States likely lack standing both under Article III of the U.S. Constitution, see U.S. Const. art. III, § 2, cl. 1 (providing that the "judicial Power shall extend" to all "Cases" and "Controversies"), and under third-party standing principles. As we will explain, we conclude that, at least given its arguments in its stay motion, the Government has not made a "strong showing" to undermine the Plaintiff-States' standing in either respect. . . .

A short excerpt from the >10,000-word Jensen v. Brown, decided yesterday by Ninth Circuit Judge Marsha Berzon, joined by Judges Richard Paez and John Owens:

Plaintiff Lars Jensen, a math professor at [Truckee Meadows (Nevada) Community College], voiced concerns about a policy change that he argues caused the math department to lower its curriculum standards. He alleges that soon after, Jensen was reprimanded, pressured to resign from another faculty member's tenure committee, given two consecutive negative performance reviews, and required to undergo an investigation and termination hearing…. We conclude that the district court erroneously dismissed Jensen's First Amendment retaliation claims….

In June of 2019, the Board of Regents for the [Nevada System of Higher Education] adopted a new "co-requisite policy." Under the co-requisite policy, students would be placed in college level math classes even if they needed remedial math instruction. Students who needed remedial math instruction would be required to take remedial classes as "co-requisites" alongside college level classes, instead of as "pre-requisites" before taking college level math courses.

To maintain course completion rates under this policy, TMCC's math department decided to lower the academic level of certain math classes…. Jensen sent an email to the math department faculty in which he expressed concerns about the department's new standards for coursework….

Julie Ellsworth, the Dean of Sciences at TMCC, facilitated a "Math Summit" to discuss the co-requisite policy's implementation "with the community." During a question-and-answer session following a presentation from Ellsworth, Jensen attempted to comment on the co-requisite policy. Ellsworth cut him off and announced that the question-and-answer session had ended. After Jensen again attempted to speak, Ellsworth directed him to the "parking lot," a whiteboard that was provided for Math Summit participants to post comments.

Free Speech

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Not everyone agreed with the Supreme Court's decision in Obergefell v. Hodges that the Constitution requires equal state recognition of same-sex marriages. Then-serving Rowan County, Kentucky county clerk Kim Davis was among those who thought the decision was wrong, morally and constitutionally. Davis is entitled to her opinion. But she was not entitled to perform her official duties in accord with her personal beliefs and violate the law.

Despite the Supreme Court's Obergefell decision, and a directive from Kentucky Governor Steve Beshear directing county clerks to "license and recognize the marriages of same-sex couples," Davis refused. Indeed, Davis refused to allow her office to issue any marriage licenses at all, even after a district court issued a preliminary injunction against her. Davis was ultimately jailed for contempt and sued by a same-sex couple under Section 1983. (You can find my prior posts on Kim Davis here.)

Since being sued, Davis has sought to claim that she is protected by qualified immunity because, even after Obergefell, she claims not to have violated any "clearly established" right of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit rejected that claim in 2019, and again in 2022. This month, in Ermold v. Davis, the Sixth Circuit rejected it for a third time. Might this time be the charm?

Judge White wrote for the panel, joined by Judge Mathis. Judge Readler concurred in part and concurred in the judgment. His separate concurring opinion makes some points I thought worth highlighting.

In Trethewey v. Downingtown Area School Dist., a Feb. 26 Pennsylvania appellate court decision by Judge Mary Hannah Leavitt (joined by Judges Renée Cohn Jubelirer and Christine Fizzano Cannon), Trethewey sought these records under the Pennsylvania Right-to-Know Law (RTKL):

[1.] Copy of all documents and materials (paper or electronic) and all presentations used by the [DEI] program director and DEI staff that were used to instruct or lead any training or programs to any staff, teacher, counselor or student in the [ ] School District.

[2.] Copy of any Copyright information on materials used (paper or electronic).

[3.] Copy of all documents and materials (paper or electronic) and all presentations that were used to instruct or lead any cultural awareness, courageous conversations, unconscious bias and cultural proficiency training or programs to any staff, teacher, counselor or student in the [ ] School District….

The School District said no, on the grounds that the records were exempt under the RTKL because they "constitute[d] or reveal[ed] a trade secret [or] confidential proprietary information." "[T]he School District's DEI Director, Justin Brown" certified:

[2.] I created the materials requested above, prior to my employment by the [School District] and prior to my appointment as [DEI Director] – they were not created using the resources of the [School District], are protected by copyright and are my personal proprietary training materials.

Education FOIA

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3/11/1936: Justice Antonin Scalia's birthday.

Former Special Counsel Hampton Dellinger may have dropped his lawsuit challenging his removal by President Trump, but that did not stop the U.S. Court of Appeals for the D.C. Circuit from issuing a belated opinion explaining why it granted the Trump Administration's emergency motion for a stay pending appeal in Dellinger v. Bessent.

The per curiam opinion on behalf of Judges Henderson, Millett, and Walker explains that the panel concluded that the Trump Administration was likely to prevail on the merits. This is because, as a single-headed agency, it is hard to distinguish the Office of Special Counsel from the Consumer Financial Protection Bureau and the Federal Housing Finance Administration, and thus hard to see how Dellinger could prevail under Seila Law v. CFPB and Collins v. Yellen.

From the opinion:

"[T]he Constitution prohibits even 'modest restrictions' on the President's power to remove the head of an agency with a single top officer." Collins v. Yellen, 594 U.S. 220, 256 (2021) (quoting Seila Law LLC v. CFPB, 591 U.S.197, 228 (2020)); see also Trump v. United States, 603 U.S. 593, 621 (2024) ("[T]he President's power to remove 'executive officers of the United States whom he has appointed' may not be regulated by Congress or reviewed by the courts.") (quoting Myers v. United States, 272 U.S. 52,106, 176 (1926)). Granted, Seila Law noted the more "limited jurisdiction" of OSC as compared to the agency at issue there, Seila Law, 591 U.S. at 221, and Collins did "not comment on the constitutionality of any removal restriction that applies to [the Special Counsel]," 594 U.S. at 256n.21. However, the government has shown that the logic of those cases is substantially likely to extend to the Special Counsel.

That is so because the Court in Collins clarified that "[c]ourts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies" and so it did "not think that the constitutionality of removal restrictions hinges on such an inquiry." Id. at253. This case illustrates the point. Compare Dellinger II, 2025 WL 559669, at *11 (Katsas, J.,dissenting) ("The Special Counsel has broad investigative and enforcement powers.") and Mot. 14 (describing OSC's powers as "significant") with Dellinger I, 2025 WL 665041, at *20 ("OSC [is]not . . . vested with significant executive power.") and Opp'n 9 (describing OSC's powers as "extremely limited"). Nevertheless, such parsing of authorities is precisely the inquiry that the district court engaged in below and that Dellinger asks us to undertake now. Dellinger I, 2025 WL665041, at *16–28; Opp'n 6–13. Accordingly, the government is likely to succeed in showing that arguments about the scope and functions of the Special Counsel as a sole agency head do not affect the President's removal power.

Both the district court and Dellinger highlight that Seila Law was particularly concerned about the "significant executive power" that the director there wielded. Dellinger I, 2025 WL 665041,at *19, 20 (quoting Seila Law, 591 U.S. at 220); Opp'n 8 (same). The district court reformulated the removal test as whether an agency can "fairly be likened to a typical administrative agency charged with implementing [congressional] directives in accordance with Presidential policy and priorities." Dellinger I, 2025 WL 665041, at *26. And Dellinger also seeks to distinguish Seila Law and Collins as instances of "principal officers leading single-headed agencies that exercise binding regulatory and enforcement authority affecting private actors." Opp'n 7.

But Collins emphasized that "the nature and breadth of an agency's authority is not dispositive in determining whether Congress may limit the President's power to remove its head." 594 U.S.at 251–52. It is for that very reason that three Justices only concurred in part in the holding, observing that "[a]ny 'agency led by a single Director,' no matter how much executive power it wields, now becomes subject to the requirement of at-will removal." Id. at 273 (Kagan, J.,concurring in part and concurring in the judgment). Whatever the merits of that expansion from Seila Law, it is binding on our court and applies no matter the "nature" or "breadth" of its executive authority.

In any event, the government has sufficiently demonstrated that Dellinger exercises at least enough authority to contradict the President's directives. As Dellinger acknowledges, OSC recently requested "a stay of personnel actions with the MSPB concerning a recent termination of probationary employees at the U.S. Department of Agriculture." Opp'n 13 n.1. In fact, that request involves thousands of employees, Appellant Rule 28(j) Letter 1, and follows Dellinger's earlier successful request for a stay involving six other employees, Mot. 9, 18. Moreover, the Special Counsel's earlier request claimed that the MSPB "must" grant a stay unless the request is "inherently unreasonable." Mot. 18. To be able to obtain the reinstatement of thousands of employees in a single agency, even if only temporarily, with such a vague standard of review seems to suggest the Special Counsel's powers are not as limited as he claims.

In a footnote in his opposition to the stay, Dellinger also argues that he is an inferior rather than principal officer, Appellee Br. 13 n.2, but not even the court below was convinced by that argument, Dellinger I, 2025 WL 665041, at *19 n.18. In evaluating whether an officer is principal or inferior, the Supreme Court has most recently "focused on whether the officer's work is 'directed and supervised' by a principal officer." Seila Law, 591 U.S. at 217 n.3. As the district court observed, only "the President has the authority to remove the Special Counsel" and "he is a Presidential appointee who must be confirmed by the Senate." Dellinger I, 2025 WL 665041, at *19 n.18. Thus, the government has shown that Dellinger is all but certain to be designated a principal officer.

In sum, the government has demonstrated a strong likelihood of success on the merits of its appeal and thus the first factor weighs in its favor.

The Trump Administration has promised to deport immigrants and foreign students who engage in pro-"terrorist" speech related to the Israeli-Palestinian conflict. Yesterday, ICE arrested Palestinian activist and former Columbia student Mahmoud Khalil, and plan to deport him. To put it mildly, I have little sympathy for recent anti-Israel campus protests. Nonetheless, deporting people for engaging in anti-Israel, pro-terrorist, or pro-Hamas speech is both unconstitutional and unjust. It also risks creating a dangerous slippery slope.

The First Amendment's protection for freedom of speech, like most constitutional rights, is not limited to US citizens. The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that "Freedom of speech and of press is accorded aliens residing in this country."

A standard response to this view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.

Nonetheless, as Eugene Volokh notes, there is some ambiguity under current precedent about the issue of whether non-citizens can be deported for speech. That ambiguity should be resolved against deportation.

There is also, tragically, a long history of speech-based restrictions on immigration and entry into the US. The Trump Administration cites 8 U.S.C. § 1182(a)(3), which bars "Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization."

Such laws, too, should be ruled unconstitutional. There is no immigration-restriction exception to the First Amendment.

In addition to legal issues, there are also good moral and policy reasons to oppose deportation for speech. If freedom of speech - including speech that promotes awful viewpoints - is a fundamental human right, there is no good reason to exempt migrants or foreign students from that principle.

I would argue that freedom of movement - including across international boundaries - is also a human right, one that should not be restricted based on arbitrary circumstances of parentage and place of birth. At the very least, migrants and students should not be deported for engaging in speech that is perfectly legal for native-born citizens. As a practical matter, native-born citizens with awful views pose a much greater threat to the future of US democracy than foreign students and recent immigrants, as the former have vastly greater political influence than the latter.

Finally, speech-based immigration restrictions create dangers similar to those of other forms of government suppression of speech. Conservatives who (rightly) don't trust government to define and suppress "misinformation" on social media should also distrust its efforts to police speech by immigrants. In both cases, there is a strong incentive to target speech that goes counter to the views of those in power, or those of current political majorities. There is no reason to trust government censors more when it comes to immigrant speech than elsewhere.

The concept of speech "espousing terrorist activity" or speech promoting "support" for a "terrorist organization" is easily susceptible to abuse. In the context of the Israel-Hamas War, it is not clear whether this means 1) only speech directly defending Hamas's terrorist attacks, or also includes 2) speech supporting the establishment of a Palestinian state (which is one of Hamas's objectives in the current conflict), and 3) speech attacking Israel's conduct of the war, including claims that Israeli forces are committing war crimes. Speech in categories 2 and 3 can be seen as "supporting" Hamas by helping it achieve its objectives, even if it doesn't directly endorse the group's terrorist actions.

Speech restrictions like this are also readily susceptible to discriminatory enforcement. For example, the Trump administration is targeting "Hamas sympathizers," but not supporters of Russia's invasion of Ukraine, which has resulted in atrocities comparable to those of Hamas, but on a larger scale. Those who support or justify Russian atrocities are far more aligned with the Trump Administration than those who support Hamas, and the administration acts accordingly.

There are many conflicts around the world that involve terrorism and atrocities against civilians. The government should not be allowed to selectively target immigrants and foreign students who express awful opinions about these conflicts, depending on whether their views align with those of the administration in power.

Finally, it may be worth noting that Mahmoud Khalil, the apparent first target of the administration's new policy, is not an entirely sympathetic figure. His activities may not have been limited to peaceful protest and speech. Apparently, he acted as spokesman and negotiator for protestors who illegally occupied buildings and other university property at Columbia. Such behavior is reprehensible. Nonetheless, he has not been convicted of any crime or even charged with one. And, as a green card holder, he has strong procedural rights against deportation that the administration must respect. If Khalil has committed a crime, then by all means prosecute him. But don't deport him for mere speech and protest, and don't punish or detain him without due process.

In my view, immigrants who commit crimes should be subject to the same punishment as native-born citizens who violate the same laws. They should not be subject to the severe additional punishment of deportation, merely because of morally arbitrary circumstances of parentage and place of birth. I explained the logic of that position and addressed various objections here. Most readers may not agree. But, at the very least, migrants and foreign students should not be punished for engaging in activities that are perfectly legal for natives, and indeed constitutionally protected rights.

Regardless, the administration has made clear that they intend to deport "Hamas sympathizers" generally, not just those who have engaged in criminal activity. That's pretty obviously targeting constitutionally protected speech.

UPDATE: Steve Vladeck has a helpful analysis of the legal issues involved in the Khalil case.

UPDATE 2: At the Instapundit blog, Glenn Reynolds agrees we should not deport immigrants for speech, but says "I would dispute that we are deporting immigrants for 'speech' when it involved violent protests in which buildings were seized and occupied and people were violently assaulted and harassed." As noted above, the Trump Administration has made clear they do intend to target migrants for speech. Whether that is what happened in the Khalil case is not yet clear. But it is their general policy.

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