The Volokh Conspiracy

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Criminal Law

Colorado Appellate Courts "Disapproving" Lower Court Decisions That Led to Acquittal

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Generally speaking, the Double Jeopardy Clause precludes the government from appealing an acquittal (whether an acquittal by a jury or by a judge). Once you're acquitted, you're off the hook, even if the trial judge erred in instructing the jury, in deciding whether there was sufficient evidence, in admitting evidence, in refusing to admit evidence, or the like.

But I just learned that, for the last 100 years, Colorado has allowed the prosecution to appeal acquittals, even though the appeal couldn't affect the result. Indeed, the bottom line decision wouldn't be "judgment affirmed" or "judgment reversed" (since the judgment of acquittal couldn't be reversed)—rather, it would be "judgment approved" or "judgment disapproved."

The prosecution's goal in such a case would presumably be to try to set a precedent that would foreclose similar errors in the future. Of course, if the judgment is approved because the appellate court agrees with the trial court, then this would set a precedent that would encourage such trial court decisions in the future.

Here's an explanation from People v. Cox (Colo. App. 2021):

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One Step Closer

"Make sure government officials know they can corruptly line their pockets so long as they kiss the ring?" - Check

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Trump has now implemented chapter 4 from "How to Be an Authoritarian": assure all other government officials that if they cooperate with you they will be effectively immune from federal criminal prosecution for bribery and corruption (and, presumably, other malfeasance). DOJ orders the US Attorney for SDNY to drop the bribery and corruption charges against Mayor Eric Adams of New York; Mayor Adams allows ICE agents into the Rikers Island detention center. Nice!

US Attorney Danielle Sassoon's resignation letter to A.G. Bondi in the Eric Adams is a small masterpiece of legal writing and legal reasoning, and a very, very serious indictment of the DOJ's actions here. Please do read it for yourself.  [UPDATE: Apparently this is paywalled; here is an unpaywalled copy of Sassoon's letter]

We sure are lucky to have a President who took such a strong stand against the "weaponization" of the Department of Justice.

Due Process

System Errors and Due Process

How can government agencies better safeguard procedural due process rights?

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As Supreme Court Justice Felix Frankfurter put it: "The history of American freedom is, in no small measure, the history of procedure." The scale of threats to due process, however, has greatly expanded. And so have the opportunities to correct uses of wholly error-prone systems by government, in ways that harm our liberty and property rights.

In Minnesota, a recent federal lawsuit alleges that a private insurer illegally denied "elderly patients care owed to them under Medicare Advantage Plans" by deploying an AI model known to have a 90% error rate, to override determinations by physicians. The tool is proprietary, and the company denied requests from patients or physicians for more information; I am aware of no independent research evaluating its performance. If the allegations are correct, then the model, used in many states, could have resulted in errors in millions of cases. (Federal regulations, made effective in 2024, now forbid exclusive reliance on AI to make such determinations.)

Another significant source of error involves not an automated system operating alone, but the way human decision-makers rely on something automated. As NIST has explained, in the context of facial recognition technology, "what matters then is the human response," because the human police officer will review the candidate photos that the system pulls to decide whether any of them is a suspect. The system may score the images, or call the level of match "strong," using unclear criteria, and, as the National Academy of Sciences concluded in a landmark 2024 report, such interpretations "can prejudice or bias human review of images." The evidence on the interaction of these systems and the people that use them is limited, but what research has been done suggests that people can be very bad at recognizing a face from a series of images. Even in a setting when the task was to examine high-quality passport photos, participants made errors 50 percent of the time. Eyewitness misidentifications are a leading cause of wrongful convictions, and it is well understood that suggestive police lineups can alter the memory of an eyewitness. And we know that false arrests can and have resulted from the use of untested facial recognition systems. Except in a handful of states that have passed some regulations, the roll-out of facial recognition has occurred freely.

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Invoking Scalia in the Sovereign District

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Acting Deputy Attorney General Emil Bove instructed Danielle Sassoon, the Acting U.S. Attorney for SDNY, to dismiss the indictment against New York City Mayor Eric Adams without prejudice. I wrote about that instruction here.

Sassoon refused, and resigned. Bove accepted her resignation. There is much to say about these letters. Here, I will focus on one small part.

Sassoon stresses that she clerked for Justice Scalia:

I am also guided by the values that have defined my over ten years of public service. You and I have yet to meet, let alone discuss this case. But as you may know, I clerked for the Honorable J. Harvie Wilkinson III on the U.S. Court ofAppeals for the Fourth Circuit, and for Justice Antonin Scalia on the U.S. Supreme Court. Both men instilled in me a sense of duty to contribute to the public good and uphold the rule of law, and a commitment to reasoned and thorough analysis. I have always considered it my obligation to pursue justice impartially, without favor to the wealthy or those who occupy important public office, or harsher treatment for the less powerful.

Here, Sassoon is invoking the authority of Justice Scalia to defend her decision. As a general matter, I find it somewhat obnoxious how people define themselves by their clerkships--especially Supreme Court clerkships. This is the first job you had out of law school, and were hired largely based on grades and recommendations from elite professors. Clerking on any court, and the Supreme Court in particular, is in no sense a measure of who you are as a person. We over-fetishize clerking.

Yet, I find this invocation especially obnoxious, because she is implying that Justice Scalia would support what she is doing. How does she know? Did she hold a seance? It is all well and good to think WWND (What would Nino do?) but we really have no clue. Justice Scalia in 1986 was different than Justice Scalia in 2001 and Justice Scalia in 2016. And, I would wager, had Justice Scalia lived through what happened over the past decade, he would be pretty close to where Justice Thomas is.

The bigger problem, of course, is that Justice Scalia dissented in Morrison v. Olson. He was the OG unitary executive theorist. I think Sassoon's letter, on behalf of the Sovereign District, is the antithesis of the unitary executive theory. And Bove's response makes that point well:

In your letter to the Attorney General, you made the dubious choice to invoke Justice Scalia. As you are likely aware from your professional experience, Justice Scalia fully understood the risks of weaponization and lawfare:

Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.

Morrison v. Olson, 487 U.S. 654, 713 (1988) (Scalia, J., dissenting). While the former U.S. Attorney is not a special counsel, Justice Scalia's Morrison dissent aptly summarized the Department's weaponization concerns here.

Bove is right. There is no need to bring your former boss into this scenario, and if you do, you better make it stick.

I've so far ignored the fact that Sassoon invoked her clerkship to Judge J. Harvie Wilkinson. Wilkinson gave tacit support to Sassoon's ultimate decision in the New York Times:

The first, J. Harvie Wilkinson III of the federal appeals court for the Fourth Circuit, in Richmond, Va., recalled Ms. Sassoon as whip-smart and versatile — equally at home in the higher precincts of appellate law and before a jury.

He said he would not comment "in any way, shape or form" on decisions that Ms. Sassoon faced in the Adams case or in others. He added: "All I would say is that Danielle is someone who's very principled and rigorously honest and plays it straight."

I think back again to the moment that George W. Bush had to choose between John Roberts, Mike Luttig, and J. Harvie Wilkinson. All things considered, Bush made the least worst choice.

Free Speech

OpenAI: "AI Should Empower People to Explore, Debate, and Create Without Arbitrary Restrictions—" …

"no matter how challenging or controversial a topic may be."

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From OpenAI's "Sharing the latest Model Spec," posted yesterday:

The updated Model Spec explicitly embraces intellectual freedom—the idea that AI should empower people to explore, debate, and create without arbitrary restrictions—no matter how challenging or controversial a topic may be. In a world where AI tools are increasingly shaping discourse, the free exchange of information and perspectives is a necessity for progress and innovation.

This philosophy is embedded in the "Stay in bounds" and "Seek the truth together" sections. For example, while the model should never provide detailed instructions for building a bomb or violating personal privacy, it's encouraged to provide thoughtful answers to politically or culturally sensitive questions—without promoting any particular agenda. In essence, we've reinforced the principle that no idea is inherently off limits for discussion, so long as the model isn't causing significant harm to the user or others (e.g., carrying out acts of terrorism).

The Model Spec itself is long and complex, and is certainly not entirely viewpoint-neutral, e.g.,

Do not contribute to extremist agendas that promote violence

The assistant must not create content that praises, endorses, or aids extremist agendas that promote violence. However, it may provide critical, discouraging, or factual discussions of such topics in contexts like news reporting, historical analysis, or education….

Avoid hateful content directed at protected groups

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Did the Truman Administration Disobey A Federal District Court Injunction In Youngstown?

The District Court injunction did not stay its ruling, but the Court of appeals did shortly thereafter.

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Most of the current rhetoric about an apparent "constitutional crisis" is woefully misinformed. For starters, President Trump cannot possibly have ignored any court order because no court order runs against him. Even if Trump has been a named defendant, any injunctions would apply to members of his administration, not the apex official. Moreover, Trump's Justice Department has dutifully appealed every adverse ruling (as best as I can tell). I've seen no evidence that Trump, or anyone in his administration, has given an order to ignore a court ruling. Some judges ordered immediate compliance, but that sort of demand is simply not realistic. The federal government cannot change direction so quickly in the face of many litigation demands. We saw these dynamics during the travel ban litigation. Attorney General Sessions described the nationwide injunction as an order to turn a battleship around 180 degrees immediately. It cannot be done.

But let's assume, at least for a moments sake, a hypothetical. A district court issues a preliminary injunction against the executive branch. The government asks for a stay, and the district court declines to grant a stay. The government then promptly asks the circuit court for an administrative stay, which is granted the following day. For the twenty-four hour period between the injunction and the stay, the government was out of compliance with the injunction. Is this the sort of "constitutional crisis" that so many people are worried about? Should not the government have at least a little wiggle room, or grace, while seeking review from a higher court?

This is not a hypothetical. It is real. Consider the procedural posture of the Youngstown Sheet & Tube Co. v. Sawyer (1952). In the landmark Steel Seizure Case, President Truman ordered the Secretary of Commerce to take over steel mills to avert a labor strike. As all know, the Supreme Court declared this seizure to be unconstitutional. But the path from the District Court to the Supreme Court is not well understood. Here is how the Justice Black's majority opinion describes the posture:

Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from "continuing the seizure and possession of the plant * * * and from acting under the purported authority of Executive Order No. 10340." 103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court's injunction. 197 F.2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. 343 U.S. 937, 72 S.Ct. 775.

I think the Court was slightly off with the chronology. The District Court injunction was issued on April 29. The D.C. Circuit entered (what was effectively) an administrative stay on April 30, and granted a stay of the injunction on May 2. But whether it was a few days or a few hours, the fact remains: for at least some period of time, the government held the steel mills in violation of a court order.

Did the Truman administration create a constitutional crisis by not immediately complying with a district court order, while seeking appellate review? Of course not. It was impossible for the government to return control of the steel mills while the appeal was processing. Turning off steel furnaces is not like flipping a switch.

For what it's worth, the D.C. Circuit panel was divided. The en banc court split 5-4 on whether to grant a stay. Had the D.C. Circuit not granted the stay, what would the Truman Administration have done? Could the Administration have relinquished control of the steel mills during an appeal to the Supreme Court? Would it even be possible to turn off the furnaces safely in that period of time? Again, I do not think there would be a constitutional crisis.

I think a constitutional crisis can occur in a specific context: there is an adverse judgment against the government, and the government continues the enjoined activity without dutifully seeking an appeal. Of course, if it is the Supreme Court that ruled against the government, there is no further judicial appeal available. There is only an appeal to the people, or, as the flag says, an appeal to heaven.

Separation of Powers

Trump Administration's Position on President's Power to Remove Commission Members

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From the letter sent yesterday to Senator Richard Durbin (the ranking minority member on the Senate Judiciary Committee) by Acting Solicitor General Sarah M. Harris:

Re: Restrictions on the Removal of Certain Principal Officers of the United States …

Pursuant to 28 U.S.C. 530D, I am writing to advise you that the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality. Specifically, the Department has determined that the statutory tenure protections for members of the Federal Trade Commission (FTC), 15 U.S.C. 41, for members of the National Labor Relations Board (NLRB), 29 U.S.C. 153(a), and for members of the Consumer Product Safety Commission (CPSC), 15 U.S.C. 2053(a), are unconstitutional.

In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court recognized that Article II of the Constitution gives the President an "unrestricted" power of "removing executive officers who had been appointed by him by and with the advice and consent of the Senate." Id. at 176. In Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created an exception to that rule. The Court held that Congress may "forbid the[] removal except for cause" of members of the FTC, on the ground that the FTC exercised merely "quasi-legislative or quasi­-judicial powers" and thus could be required to "act in discharge of their duties independently of executive control." Id. at 628-629. Statutory tenure protections for the members of a variety of independent agencies, including the FTC, the NLRB, and the CPSC, rely on that exception.

The Department has concluded that those tenure protections are unconstitutional. The Supreme Court has made clear that the holding of Humphrey's Executor embodies a narrow "exception" to the "unrestricted removal power" that the President generally has over principal executive officers and that the exception represents "'the outermost constitutional limit[] of permissible congressional restrictions'" on the President's authority to remove such officers. Seila Law LLC v. Consumer Fin. Protection Bureau, 591 U.S. 197, 215, 218 (2020) (citation omitted). Further, the Supreme Court has held, the holding of Humphrey's Executor applies only to administrative bodies that do not exercise "substantial executive power." Id. at 218-219. The Supreme Court has also explained that Humphrey's Executor appears to have misapprehended the powers of the "New Deal-era FTC" and misclassified those powers as primarily legislative and judicial. Id. at 218.

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Can You Appeal An Administrative Stay By A District Court?

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The latest innovation in litigation is a district court administrative stay. Traditionally, circuit courts have issued administrative stays to pause a lower court injunction. In other words, the appellate court is staying some lower-court ruling. But in recent weeks, several district courts have issued administrative stays. Stays of what you might ask? Stays of some executive action. This nomenclature is a perversion. Courts stay judicial rulings and enjoin government actions. Courts cannot stay an executive order or statute anymore than an appellate court can enjoin a lower court.

Such an administrative stay sounds an awful lot like a TRO. But these stays have been granted without regard to likelihood of success on the merits. These judges have simply granted administrative stays to "maintain the status quo." At least in theory, these temporary stays are meant to give the court adequate time to resolve a complex issue. What is the basis for such an administrative stay? If there is such authority, it has to be the All Writs Act. But I am still uncertain on this point.

Now, there is a new innovation. President Trump removed Hampton Dellinger, the Special counsel of the Office of Special Counsel (and son of the late, great Walter Dellinger). On February 10, Judge Amy Berman Jackson (DDC) granted an administrative stay to block the removal for a few days. The Trump Administration tried to appeal that administrative stay. On February 12, Judge Jackson ruled that such an appeal is "frivolous," she retains jurisdictions, and now enters a TRO.

Defendants' appeal of the administrative stay did not divest this Court of jurisdiction to consider the instant motion. Only "a non-frivolous appeal from the district court's order divests the district court of jurisdiction over those aspects of the case on appeal." Bombadier Corp. v. Nat'l R.R. Passenger Corp., No. 02-7125, 2002 WL 31818924, at *1 (D.C. Cir. 2002), citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). A motion is "frivolous" when its disposition is obvious and the legal arguments are wholly without merit. Reliance Ins. Co. v. Sweeney Corp., 792 F.2d 1137, 1138 (D.C. Cir. 1986). It is well-settled that even a temporary restraining order "is not generally appealable," Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978), and that principle applies to the brief administrative stay entered to preserve the status quo. See Griggs, 459 U.S. at 58 ("[N]otice of appeal from unappealable order does not divest district court of jurisdiction."), citing Ruby v. Sec'y of the U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966).

Has any court ever held that a brief administrative stay by a district court cannot be appealed? Griggs certainly didn't say that. The See signal in that citation cannot possibly bear the weight of that inference.

Can you not appeal an administrative stay? Is it really the case that a district judge can issue an unappealable order? Can the judge control the federal government without any appellate review? Or is it that mandamus is the only available process, as with a TRO? Then again, the basis for seeking mandamus turns on the usual TRO factors; how would that work with an automatic administrative stay to simply maintain the status quo? What would the government argue? That the status quo should not be maintained?

I think judges are getting a bit creative with this administrative stay business. Meanwhile, in New York v. Trump, the First Circuit declined to grant an administrative stay of Judge McConnell's ruling on the funding case. The panel cited the uncertainty about administrative stays.

The sole motion we address in this order is the motion for an administrative stay. This Circuit has not addressed whether or when an administrative stay of the sort being requested here may be issued, and there is well-recognized uncertainty as to what standards guide the decision to issue one or not. SeeUnited States v. Texas, 144 S. Ct. 797, 798 (2024) (Barrett, J., concurring). Here, the defendants have requested a stay pending appeal from the District Court, which has not yet ruled on their motion. See Fed. R. App. P. 8(a)(1)(A) ("A partymust ordinarily move first in the district court for… a stay of the judgment or order of a district court pending appeal…."); id. 8(a)(2)(A)(ii) (requiring, in the absence of a showing that "moving first in the district court would be impracticable," that the party moving for a stay pending appeal must "state that… the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action"). Moreover, a centerpiece of the dispute between the parties in this appeal concerns the proper way to construe the February 10 Order. Finally, insofar as we have jurisdiction to consider this request for an administrative stay arising out of a temporary restraining order, cf.Off. of Pers. Mgmt. v. Am. Fed'n of Gov't Emps., AFLCIO, 473 U.S. 1301, 1306 (1985) (Burger, C.J., in chambers) ("[S]ince the Court of Appeals was without jurisdiction over the appeal from the District Court's order denying the temporary restraining order, the motions panel was necessarily without authority to grant such a stay."), the defendants do not cite any authority in support of their administrative stay request or identify any harm related to a specific funding action or actions that they will face without their requested administrative stay. In these circumstances, we assume we have jurisdiction, seeDoe v. Town of Lisbon, 78 F.4th 38, 44-45 (1st Cir. 2023), and deny the motion for an administrative stay without prejudice. We are confident the District Court will act with dispatch to provide any clarification needed with respect to, among other things, the defendants' contention that the February 10 Order "bars both the President and much of the Federal Government from exercising their own lawful authorities to withhold funding without the prior approval of the district court." We note in this regard the plaintiffs' statement in their Opposition to Defendants' Motion for Administrative Stay Pending Appeal that, consistent with the TRO, the February 10 Order "does not stop defendants from limiting access to funds without any 'preclearance' from the district court 'on the basis of the applicable authorizing statutes, regulations, and terms.'" The parties may file any further memoranda in support of their positions on the motion for a stay pending appeal in this court by 5:00 PM on Thursday, February 13, 2025. [25-1138] (AL)

Why would New York bring a law suit in Rhode Island? Does anyone care about forum shopping anymore? Judge McConnell, you may recall, was a close ally of Senator Sheldon Whitehouse.

There you have it. District court judges enter administrative stays, but circuit courts decline to get them. We are through the looking glass.

Justice Barrett was bothered by administrative stays in the Circuit Courts. I think she will be perplexed by them in the District Court. And this practice may get shut down soon.

New Civitas Outlook Essay: Four Questions and Few Answers About the Invasion Clause

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I have written several somewhat tentative posts on the Invasion Clause. This is an issue on which the courts have not substantially opined, and there is very little settled precedent In my latest essay for Civitas Outlook, I raise four questions for which there are few answers.

Here is the introduction:

On inauguration day, President Trump signed a proclamation "guaranteeing the states protection against invasion." Trump determined that the federal government had "failed in fulfilling [its] obligation to the States" at the southern border and would "take measures to fulfill its obligation to the States." In 2024, Texas Governor Greg Abbott also declared that there was an invasion at the southern border. Most critics saw these actions as partisan statements with no actual legal effect. I disagree. There are important constitutional ramifications to declaring an invasion. If there is an invasion, both the federal government and the states receive additional war powers to repel that invasion. Federal laws that conflict with those war powers may give way. Moreover, the children of invaders may not be entitled to citizenship at birth.

The concept of an invasion may seem obscure today, but it was certainly on the Framers' minds. Four separate clauses of the Constitution reference invasion. Some scholars and judges argue these issues are open-and-shut. They claim that an invasion must be hostile, peaceful migrants cannot be invaders, and the courts have the power to second-guess the president's proclamation. I am not so sure. Here, I will address four questions with few definitive and settled answers. First, what is an invasion? Second, who can declare an invasion? Third, what happens to other federal laws during an invasion? And fourth, do the children of invaders receive birthright citizenship? Once again, Trump has brought long-forgotten provisions of the Constitution to the arena and forced our polity to grapple with whether this President should be treated any differently from all other presidents.

And the conclusion:

Ultimately, I am certain about one principle, which I repeated through Trump's first term, and I will repeat for four more years. Whatever the meaning of the invasion clause, the answer cannot turn on the unprecedented nature of the Trump presidency. These legal questions should have an answer that does not depend on Trump. Either the President has the power to declare an invasion, or he does not. Either the state has the power to declare an invasion, or it does not. Either the judiciary has the power to second-guess a federal declaration of an invasion, or it does not. Either the children of invaders receive birthright citizenship, or they do not. The answer to those questions has to be the same in 1788, 1868, or 2025. I've raised four questions here, and I do not think many clear and settled answers exist. But in any event, these issues cannot decisively cut against the position taken by President Trump and Texas.

Due Process

Due Process and AI

How does AI challenge basic procedural due process protections and what should be done?

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As we all now know, AI plays a now-pervasive role in our lives, and often without our knowledge. When an an AI system links a person's face to a still from surveillance video, recommends whether to detain a person in jail, or responds with "situational awareness" to a national security threat, what assurance is there that this system can be trusted to safely perform as promised? AI is being used throughout government in hundreds of settings, including those that affect people's core constitutional rights. In response, however, many judges, officials, and scholarly commenters have uncritically credited the claims made by the developers that these systems are reliable and have been subjected to rigorous testing. All too often, those assurances have not been borne out when independent researchers test the AI systems.

And AI has created due process challenges across the world. Just ask it. ChatGPT just told me this: "AI has created significant challenges to due process worldwide in various ways, particularly in criminal justice, government decision-making, and surveillance." And I agree.

AI is now relied on throughout government, even in high-impact settings, such as decisions to identify suspects using facial recognition, detain individuals, or terminate public benefits. Many more uses are being developed, ranging widely from using AI to predict hospital bed usage, to count endangered species like sea lions, and in border security. While some of these AI applications may be helpful and mundane, others may seriously harm people and impact their rights. Consider an example from one person's case.

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Free Speech

Trump's Personal Defamation Lawsuit Against Pulitzer Prize Board Members May Continue

So holds the Florida Court of Appeal, rejecting the members' claim that they aren't subject to personal jurisdiction in Florida. The majority doesn't discuss the substantive merits of the case.

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From Alexander v. Trump, decided today by Florida Court of Appeal Justices Jeffrey Kuntz, Burton Conner, and Ed Artau:

President Donald J. Trump, a Florida resident, sued nineteen individual members of the Pulitzer Prize Board, an unincorporated association, for defamation and conspiracy. Trump alleged that he sent letters on his personal letterhead to members of the Pulitzer Prize Board. The letters demanded the Pulitzer Prize Board take action to strip The Washington Post and The New York Times of the Pulitzer Prize awarded in 2018 for articles on purported Russian interference in the 2016 presidential election and alleged connections to Trump.

After Trump sent the letters, the Pulitzer Prize Board met remotely and concluded "no passage or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes." The Board then issued the following statement on its website, with links to the original articles:

A Statement from the Pulitzer Prize Board

The Pulitzer Prize Board has an established, formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump, about submissions from The New York Times and The Washington Post on Russian interference in the U.S. election and its connections to the Trump campaign--submissions that jointly won the 2018 National Reporting prize.

These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.

The 2018 Pulitzer Prizes in National Reporting stand.

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Free Speech

UCLA Suspends Students for Justice in Palestine (SJP) Groups for Alleged Misconduct Against UC Regent

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From a message just circulated by the UCLA Chancellor:

Dear Bruin Community:

At UCLA, there is always room for discourse and for passionate debate of different points of view. In fact, they are vital to institutions of higher learning. Discourse helps us question our ideas and see new perspectives, and it ultimately leads to growth. Rigorous, healthy dialogue is central to everything we do to advance knowledge.

What there should never be room for is violence.

No one should ever fear for their safety. Without the basic feeling of safety, humans cannot learn, teach, work and live — much less thrive and flourish. This is true no matter what group you are a member of — or which identities you hold. There is no place for violence in our Bruin community.

That is why I am personally letting you know that the UCLA Office of Student Conduct has issued an interim suspension today to two registered student organizations, Students for Justice in Palestine (SJP) and Graduate Students for Justice in Palestine (GSJP), based on its review of initial reports about the groups' involvement in an incident last week at the home of UC Regent Jay Sures.

As has been reported publicly, both in the press and in social media posts by the groups themselves:

• On February 5, 2025, individuals affiliated with the student groups harassed Mr. Sures and members of his family outside his home.
• Individuals surrounded the vehicle of a Sures family member and prevented that family member's free movement.
• Individuals pounded on drums, chanting and holding signs with threatening messages such as "Jonathan Sures you will pay, until you see your final day."
• Individuals vandalized the Sures home by applying red-colored handprints to the outer walls of the home and hung banners on the property's hedges.

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Free Speech

No Domestic Violence Restraining Order Based on Allegations of "Gaslighting"

"Lily accused Gunther of 'Gaslighting' (underscoring omitted) by denying he suffered from steroid-induced rages during their marriage and denying Lily's contributions to Gunther's career success."

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From Shia v. Shia, decided Jan. 27 by the California Court of Appeal (Justice Helen Bendix, joined by Justices Gregory Weingart & Michelle Kim):

Lily Shia appeals from an order denying a domestic violence restraining order against respondent Gunther Shia, her ex-husband. Both parties are self-represented on appeal. Lily fails to show the family law court erred by declining to consider many of Lily's allegations of abuse on the basis that they already had been litigated and decided in Gunther's favor. We further hold Lily's remaining allegations are not supported by substantial evidence or were not properly before the family law court….

The decision is long and involves lots of allegations, but here's the one that struck me:

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Free Speech

Posting That Employer Is "Racist" Because "He's Voting for Trump" Isn't Defamation

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From Espinoza v. CGJC Holdings LLC, decided today by Judge Denise Cote (S.D.N.Y.):

The following facts are taken from the pleadings. They are assumed to be true for the purposes of this motion.

Espinoza worked for approximately one year as a phone server at Joe and Pat's Pizzeria and Restaurant …, which is owned by CGJC Holdings. The individual defendants in this action … are all co-owners and managers of the Restaurant.

Defendants allege that they chose to terminate Espinoza's employment at the Restaurant after Espinoza posted the following statement as a "story" on her Instagram social media page on October 22, 2020 (the "October 2020 Post"):

[I]f you thinking about coming to eat at my job, dont [because] my manager told me he's voting for trump dont give racists your money !!!

Defendants further allege that the October 2020 Post was publicly available to "thousands" of people, that the Restaurant was the "only employer" Espinoza identified in her public profile at the time, and that it was "widely known" that the individual defendants were owners or managers of the Restaurant.

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More

Recent Volokh Posts

1

Andrew McCarthy on the Hegseth Impeachment

2

S. Ct. Suspends District Court's Injunction Blocking Border Barrier Building

3

The Butler Didn't Do It

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Justice Cody Hiland Publicly Criticizes The President For Nominating Him To District Court Instead of Eighth Circuit

5

Deference, the Insurrection Act, and Statutory History

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U. Colorado Regent-vs.-Regents Lawsuit, Cannabis, Race, and Legislative Immunity

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Plaintiffs Contesting Tren de Aragua Membership Claims / Alien Enemies Act Application Still Can't Sue Pseudonymously

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Today in Supreme Court History: November 9, 1942

9

Open Thread

10

Talarico's Christianity

The All-Argentina Issue is Here

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