The Volokh Conspiracy Archive

The incoming Trump administration plans to deprive children of undocumented immigrants of birthright citizenship. As I explained in a recent article in Just Security, this would be a blatant violation of the Citizenship Clause of the Fourteenth Amendment, which grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." There is no exception for children of illegal migrants. Legal scholars Amanda Frost (Univ. of Virginia) and Paul Gowder (Northwestern), have recently published excellent articles on the same topic: Frost in the Atlantic (there is a paywall), and Gowder in the UnPopulist. They effectively refute the various specious rationales offered for claims that children of undocumented immigrants aren't entitled to birthright citizenship because they are not "subject to the jurisdiction" of the US.

Among other things, they poke holes in the idea that these children aren't entitled to citizenship because their parents' entry into the US did not have "consent." I would add that nothing in the Citizenship Clause requires "consent," and that no real-world government genuinely enjoys the consent of the people it rules. Moreover, to the extent we care about consent, depriving children who have no other home of the right to live in the US would itself be an egregious nonconsensual exercise of government power.

In my Just Security article, I pointed out that denying birthright citizenship to the undocumented would in various ways go against the central objective of the Citizenship Clause which was to ensure citizenship rights for blacks denied them by the Supreme Court's ruling in the notorious Dred Scott case. Frost highlights another way in which this would be true:

In a recent law-review article, the legal scholars Gabriel Chin and Paul Finkelman explained that for decades, Africans were illegally brought to the United States as slaves even after Congress outlawed the international slave trade in 1808, making them the "illegal aliens" of their day. The nation was well aware of that problem. Government efforts to shut down the slave trade and deport illegally imported enslaved people were widely reported throughout the years leading up to the Civil War. Yet no one credible, then or now, would argue that the children of those slaves were to be excluded from the citizenship clause—a constitutional provision intended to overrule Dred Scott v. Sandford by giving U.S. citizenship to the 4.5 million Black people then living in the United States.

If children of people who entered the US illegally are not entitled to birthright citizenship, that logic would have applied to the children of illegally transported slaves.

There are many more good points in both articles. People interested in this issue should read both.

From Mirabelli v. Olson, decided today by Judge Roger Benitez (S.D. Cal.), the introduction and the conclusion:

Plaintiffs are teachers in the Escondido Union School District ("EUSD") and parents of students in other California school districts…. The Plaintiffs contend that a state policy promulgated by the California Department of Education and adopted by local school districts violate their rights under the First and Fourteenth Amendments …. The gravamen of the state policy is that public school teachers are not to reveal to parents a student's announced change of gender identity in order to maintain the student's privacy, except where the student consents to disclosure….

It is still true that a request to change one's own name and pronouns may be the first visible sign that a child or adolescent may be dealing with issues that could lead to gender dysphoria or related health issues. Yet, for teachers, communicating to a parent the social transition of a school student to a new gender—by using preferred pronouns or incongruent dress—is not generally permitted under EUSD's and the State Defendants' policies.

The Supreme Court has long recognized that parents hold a federal constitutional Due Process right to direct the health care and education of their children. The Defendants stand on unprecedented and more recently created state law child rights to privacy and to be free from gender discrimination. These rights may compete when it comes to information about a child's expressed gender incongruence in a public school. Parents have a right to know about their child gender expression at school. And a child has a right to keep gender expressions private and to be protected from discrimination.

The Supreme Court and the Ninth Circuit have clearly and unambiguously declared parents' rights as they relate to their children…. "We have long recognized the potential conflict between the state's interest in protecting children from abusive or neglectful conditions and the right of the families it seeks to protect to be free of unconstitutional intrusion into the family unit, which can have its own potentially devastating and long lasting effects." …

There are no controlling decisions that would compel this Court to limit or infringe parental rights, notwithstanding the State's laudable goals of protecting children. This Court concludes that, in a collision of rights as between parents and child, the long-recognized federal constitutional rights of parents must eclipse the state rights of the child. Therefore, the Court finds that the Plaintiffs have stated plausible claims upon which relief can be granted and the motions to dismiss are denied.

The opinion is over 8000 words long, but here's an excerpt:

Just saw this announcement from FIRE; very glad to hear it. I copy below my explanation from Dec. 18 for why I think Trump's claim is unsound.

[* * *]

[The] Complaint in this case essentially alleges that pollster Ann Selzer's Nov. 2 poll for the Des Moines Register, which showed Harris ahead in Iowa by 3 points, was deceptive to consumers and thus violated Iowa consumer fraud law:

62. President Trump, together with all Iowa and American voters, is a "consumer" within the meaning of the statute.

63. Defendants furnished "merchandise" to consumers within the broad meaning of the statute since they provided a service: physical newspapers, online newspapers, and other content that contained the Harris Poll.

64. Defendants engaged in "deception" because the Harris Poll was "likely to mislead a substantial number of consumers as to a material fact or facts," to wit: the actual position of the respective candidates in the Iowa Presidential race.

65. Defendants engaged in an "unfair act or practice" because the publication and release of the Harris Poll "cause[d] substantial, unavoidable injury to consumers that [was] not outweighed by any consumer or competitive benefits which the practice produced," to wit: consumers, including Plaintiff, were badly deceived and misled as to the actual position of the respective candidates in the Iowa Presidential race. Moreover, President Trump, the Trump 2024 Campaign, and other Republicans were forced to divert enormous campaign and financial resources to Iowa based on the deceptive Harris Poll. Consumers within Iowa who paid for subscriptions to the Des Moines Register or who otherwise purchased the publication were also badly deceived. Additionally, Iowans who contributed to the Trump 2024 Campaign were similarly deceived.

[See Update.]

Last fall, I noticed that the U.S. Court of Appeals for the D.C. Circuit had redesigned portions of its website, creating a new opinions portal. Alas, as I noted at the time, the new portal actually made it more difficult to find opinions because it lacks a search function.

Today the D.C. Circuit provided a good example of how this supposed "upgrade" was nothing but, at least if one is concerned about public access to the work of our federal courts.

Today the D.C. Circuit denied a petition for en banc rehearing in Lewis v. Becerra. There were no noted dissents, but Judge Pillard offered an opinion respecting the denial which comments on the panel opinion.

Seeing this, some might want to read the original panel opinion, perhaps to note who was on the panel or to look at the passages Judge Pillard cites (using the slip op's pagination)--and therein lies the problem. Because the D.C. Circuit website no longer has a a search function on its opinion page, there is no way to do this from the website. It is possible to browse by date, but no way to search by docket number or party name.

This change may not be a problem for biglaw attorneys (or even academics) with Westlaw or Lexis subscriptions of PACER access. But for others--like, say, the general public--this is a real problem. (Yes, I was able to find the original panel opinion, but why should i have to resort to other websites or services to do so? And what about members of the general public who may not know as much about how to track such things down, or how to track down cases where party names change or that involve repeat litigants.)

Note that my complaint is not that the D.C. Circuit failed to design a website that suits my tastes. Rather it is that the D.C. Circuit revised its website in a manner that eliminated prior functionality--functionality that is easy to provide, that the court used to provide, and that serves the aim of enhancing public access to the work of federal courts.

Court websites should be enhancing public accessibility, and this is particularly true for appellate courts. In this respect, the D.C. Circuit's recent revisions to its website--however aesthetically pleasing--are a major step backwards, and that's a shame.

The term "doxing" is not well defined, but is often used broadly to refer to publicly disclosing a person's name, photograph, address, phone number, employer name, and the like, in connection with some express or implied condemnation of the person. The concern is that such disclosure can instigate or facilitate violence or vandalism targeting the person, or the sending of threats, or the sending of insulting messages, or economic retaliation (often through the person's employer). Different states have different rules dealing with such matters, and they generally define "doxing" differently, both as to what information is covered, who is protected against such disclosure, what (if any) specific purposes on the discloser's part must be shown to lead to liability, and more.

In any case, in thinking about the subject (and especially the questions that aren't limited to information such as social security numbers, bank account numbers, and the like), I came up with a set of hypotheticals that I hoped might be helpful. If any of you are interested in this, I'd love to hear your thoughts about which, if any, of these situations should lead to, say, criminal or civil liability (and, briefly, why). One can of course think that none should lead to liability—at least unless the allegations are false and therefore libelous, or are part of a criminal conspiracy involving the speaker, or involve some other factual feature not included in the hypothetical—or one can think that all should, or one can come to some conclusion in between.

Some doxing rules might not involve criminal or civil liability, and might not be subject to First Amendment restraints: For instance, a private university might restrict such speech by its students (especially about other students, staff, or faculty), or a social media platform might restrict such speech on the platform, or a newspaper might set up editorial policies about what kinds of material it publishes. But for purposes of this comment thread, I thought it would be good to focus on criminal or civil liability.

[1.] Dentist Who Shot Cecil the Lion: In 2015, Minnesota dentist Walter Palmer was publicly "named and shamed" through many people's social media posts for killing Cecil, a famous Zimbabwe lion, on a hunting trip. This led to likely economic harm to his practice, and to his "receiv[ing] a slew of death threats on social media." How the Internet Descended on the Man Who Killed Cecil the Lion, BBC, July 29, 2015. Assume the posts identified Palmer and the name of his dental practice.

[2.] Central Park Karen:

I'm delighted to be able to pass along this item from my Stanford colleague Prof. Michael McConnell (Stanford Law School), one of the nation's leading scholars on the Religion Clauses:

The Supreme Court has a unique opportunity this Term (or next) to hear four cases with major implications for religious liberty. One case is already on the merits docket—Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission, which involves a challenge to Wisconsin's determination that Catholic Charities is not sufficiently religious to qualify for an exemption from the state's unemployment program.

This Friday, the Court will consider adding three more:

Apache Stronghold v. United States—in which Native Americans are challenging the federal government's plan to destroy a sacred site by turning it into a copper mine.

Mahmoud v. Taylor—in which Muslim parents are challenging a school district's refusal to notify parents or let children opt out when teachers present controversial readings on sex and gender identity.

Roman Catholic Diocese of Albany v. Harris—in which religious groups are challenging New York's mandate to cover abortions in their health insurance plans.

(Full disclosure: I participated in amicus briefs in all four cases.)

While these cases may seem unrelated, they converge on two pressing issues that have divided lower courts, distorted the law, and harmed religious liberty. The Court should hear all four cases. Here's why.

[1.] Apache Stronghold and Mahmoud present the first issue that has divided lower courts: What kind of "burden" on religious exercise triggers heightened judicial scrutiny?

The Apaches have been worshipping at their sacred site, Oak Flat, since before European contact. Oak Flat occupies a unique role in Apache cosmology as a site of specific religious rites that cannot take place elsewhere. Now the government plans to transfer Oak Flat to a mining company that will destroy it—ending Apache rituals forever. This would seem to be a textbook case of a "substantial burden" on religious exercise under the Religious Freedom Restoration Act (RFRA). Yet the en banc Ninth Circuit, in a 6-5 ruling, held that there is no "cognizable" burden at all. According to the court, "the Government's management of its own land and internal affairs" does not burden religious exercise unless the government also coerces, discriminates, imposes a penalty, or denies equal rights.

From People v. Farca, decided last week by California Court of Appeal Justice Tracie Brown, joined by Contra Costa County Judge Danielle Douglas:

Around June 2019, Farca had two accounts on Steam, an online gaming website and social platform…. The name of one of Farca's accounts was "Adolf Hitler (((6 MILLION)))." The description of the account said "Brenton Tarrant is a hero!!" and had an icon of the flag of New Zealand. Brenton Tarrant shot and killed about 50 Muslim people at mosques in Christchurch, New Zealand. The description of the Steam account also stated, "I have a fully semi automatic assault weapon AR15 with multiple high capacity magazines. Wanna see a mass shooting with a body count of over 30 subhumans?" The Nazi party in World War II referred to Jews as subhumans.

Using that account, Farca sent a message to three other users, saying, "I currently own an AR15 semi auto rifle but I can buy/make the auto sear and get the M16 parts kit. What do you think of me doing what John Earnest tried to do, but with a Nazi uniform, an unregistered and illegally converted 'machine gun' and actually livestreaming it with Nazi music? I would get a body count of like 30 kikes and then like 5 police officers because I would also decide to fight to the death 1) you don't surrender to the ZOG 2) ever watch US prison documentaries? Also I would not spam full auto, I would just use it for clusterf,ucks [sic] of kikes. Generally you want to be on semi auto only so you don't waste ammo plus depending on the target richness and need for suppression eventually I may go low on ammo so I would need to resupply from the dead officers since it's 5.56." Farca also posted, "I just would need a better target than f,ucking [sic] some random synagogue with kikes that aren't really a threat. Preferibly [sic] with some high value targets, even though they would have their own security." John Earnest shot and killed one person at a synagogue in Poway in early 2019. "Kike" is a derogatory term for a Jewish person.

Acting on a tip from the FBI, Detective Gregory Mahan of the Concord police found Farca's Steam posts. The FBI tip identified the Steam user as Farca. Mahan conducted a background check and discovered that Farca lived in Concord and had purchased a "stripped lower" for an AR-15 a few months earlier. A stripped lower is the most basic part of a firearm on which a gun is built by adding other components….

In [a search of] Farca's bedroom, police found, among other things, an AR-15-style semiautomatic rifle with a pistol grip, detachable magazine, telescoping stock, and two types of scopes…. Also in Farca's home were a Japanese sword, a military-style combat fixed-blade knife, and a military-style camouflage uniform. Farca had numerous history books about World War II and Nazi Germany, as well as two pro-Jewish books. Laptops and a cell phone in Farca's room had a large amount of anti-Semitic and pro-Nazi material, including a copy of Mein Kampf, as well as a video of the Christchurch shooting. The laptops were linked to the Steam accounts. The Internet history on Farca's laptops and phone included searches for "Concord police scanner," "First Lutheran Church in Concord," "sf jewish library," and "sf jewish museum." The devices had saved copies of Steam chats and Youtube comments in which Farca's account mentioned suicide by cop, being willing to slaughter law enforcement officers, and not being willing to go to prison.

Deborah K., the executive director of a synagogue in Lafayette, learned through a media article and law enforcement bulletin that Farca had been arrested less than 10 miles from the synagogue and had said online that he wanted to attack Jewish people and kill police. She also learned that the police seized an assault weapon during the search. Deborah K. felt concerned or threatened because of her knowledge of the attacks earlier that year by Tarrant and Earnest and the fact that Farca was arrested nearby with the means to carry out an attack. She contacted the local police, and the synagogue hired armed, full-time private security. Deborah K. knew that Farca had not posted anything directly identifying her synagogue or its rabbi or congregants….

The court upheld Farca's weapons-related convictions, as well as a conviction for threatening a police officer (for more on the facts of that, see the opinion), but it vacated his conviction for "interfering with another person's exercise of civil rights by threat of force … through his online posts":

1/7/1972: Justices Lewis F. Powell and William H. Rehnquist take oaths.

It is a new era in Texas. Chief Justice Nathan Hecht stepped down in December after a distinguished career that spanned more than three decades. I would wager the parents of Hecht's final crop of clerks were not even in college when Hecht was appointed to SCOTX.

Today, Governor Abbott has elevated Justice Jimmy Blacklock to the Chief Justice Position.

Governor Abbott first appointed Justice Blacklock to the Court in 2018. Justice Blacklock was born in Houston and grew up in Missouri City, Texas, where he attended public school, graduating from Elkins High School. He then graduated from the University of Texas at Austin and from Yale Law School. Before joining the Court, Justice Blacklock served as Governor Abbott's general counsel and in the Attorney General's office, where he practiced appellate litigation among other duties. Justice Blacklock was appointed by President George W. Bush to serve in the U.S. Department of Justice's Civil Rights Division. He clerked for Judge Jerry Smith on the U.S. Court of Appeals for the Fifth Circuit and worked in private practice in Houston and Austin. He lives in Austin with his wife and their three daughters.

And Abbott nominated James P. Sullivan to fill Justice Blacklock's old seat.

Sullivan has served as the governor's General Counsel since 2021. He previously served as Assistant Solicitor General of Texas and Deputy General Counsel to the governor. He earned his Bachelor of Arts degree at Rice University. A Harvard Law graduate, Sullivan was a law clerk to Judge Thomas B. Griffith on the U.S. Court of Appeals for the D.C. Circuit, has served as an adjunct professor at George Mason University, and has been an appellate litigator in private practice.

Congratulations to them both!

Rioters outside the U.S. Capitol on January 6. — The attack on the Capitol. January 6, 2021. (Probal Rashid/ZUMAPRESS/Newscom)

Today is the fourth anniversary of the January 6, 2021 attack on the Capitol, and - ironically - also the date Congress certifies Donald Trump's victory in the 2024 presidential election. As I have previously written, widespread voter ignorance and bias in evaluating political information played a major role in both causing the attack, and facilitating Trump's subsequent political comeback.

I wrote about the role of ignorance and bias in causing the attack in a 2022 post.As explained there, ignorance and partisan bias enabled Trump to persuade a large part of the GOP base that the 2020 election was somehow stolen from him, even though that claim was a blatant lie.

More recently, Trump's 2024 win was itself facilitated by ignorance, in ways I outlined in a post written just before election day:

Ignorance and bias are playing a huge role in Trump's relative success. Polls consistently show that a third or more of Americans - including a large majority of Republicans - believe Trump's lies about the 2020 election, despite the overwhelming evidence against them, including numerous court decisions rejecting Trumpian claims of voter fraud (including some written by conservative judges appointed by Trump himself). Ignorance and partisan bias are great enough that many millions of GOP base voters reject fairly obvious facts here. If you believe the 2020 election was "stolen" from Trump, then his reaction may well seem justified, or at least excusable.

But this isn't the full story. If Trump only had the support of voters who actually believe his lies about the 2020 election, he could still have won the 2024 GOP nomination. But he would be losing the general election in a landslide of about 60-40 or even more. He remains competitive with Kamala Harris because there are many voters (probably around 10-15% or so of the electorate) who reject his take on 2020, but prioritize other issues, such as the economy or immigration.

Here, more conventional political ignorance is playing a role. Surveys indicate that the economy is the highest priority for voters, including swing voters, and many are angry about the inflation and price increases that took place in 2021-23…. Swing voters blame incumbent Democrats for the inflation and price increases, even though actually both parties supported the policies that caused them (primarily massive Covid-era spending). Even worse, they tend to think Trump will bring down prices, even though his agenda of massive tariff increases and immigration restrictions would predictably raise them.

The problem of voter ignorance and biased evaluation of information isn't limited to GOP voters or the political right. It's a serious problem on the left, too, though right-wing version more immediately dangerous now. See my discussion of left-wing ignorance and bias here.

Sadly, there is no quick and easy solution to these problems. But I go over various possible strategies in this 2023 article. See also my book Democracy and Political Ignorance (introduction available for free here) for much more extensive analysis of the problem and possible solutions.

I've been writing about the dangers of political ignorance since long before the rise of Trump, beginning with my 1998 article "Voter Ignorance and the Democratic Ideal." Early on, it was mostly left-liberals who opposed me, arguing ignorance is not much of a problem. In the Trump era, the ideological and partisan valence of political ignorance has flipped. But it remains a grave danger, nonetheless.

From a Nov. 15, 2024 Justice Department press release, a summary of the allegations:

On Friday, November 8, 2024, SUMAN sent messages over Facebook and email threatening a news reporter based in Orange County, New York. "You are a dumb spick, we [are] coming for you," he said. "I will end you and your family." "You better stay in [N]ew [Y]ork." SUMAN also threatened to blow up the victim's residence: "I can blow your house off [its] foundation tread lightly."

His threats appeared motivated by an article the reporter wrote several years ago, which related to SUMAN's arrest for threatening a former roommate with a firearm, resulting in his guns being taken away. He added that all his guns were returned, stating "I have more guns than ever," including "ful[ly] auto[matic]" weapons.

From today's decision by Judge Gerald McHugh (E.D. Pa.) in Landau v. Corp. of Haverford College:

[A] litany of complaints related in a general way to the same subject—in this instance the serious problem of antisemitism—is not the same thing as a legally cognizable complaint pled in accordance with the Federal Rules of Civil Procedure….

Plaintiffs Jews at Haverford, Alumni Ally Landau, and two anonymous students … allege that over the past year, Haverford College … has become a bastion of antisemitism that is tolerated and at times perpetuated by the College. Plaintiffs contend that they have been personally affected by the eruption of disorder on campus. Specifically, they state that they have lost friends, faced harassment, been forced to change their routines, and missed out on seminal Haverford experiences because of escalated antisemitism. They assert that antisemitism at Haverford has fostered a hostile educational environment in violation of Title VI, and that Haverford has breached certain contractual obligations by failing to deal with campus unrest.

At this stage, a court would typically review the relevant facts. I cannot cogently do so here due to the sprawling and disorganized character of Plaintiffs' Amended Complaint, which appears to detail every frustration and disagreement of Jewish students and faculty that has occurred at Haverford over the last year. It spills pages of ink on lengthy frolics about events on other college campuses and about ideological debates. Rather than isolating instances of harassment and logically relating them to the elements of a hostile environment claim, Plaintiffs set forth a running list of grievances that reads more as an opinion editorial than it does a legal complaint.

Some of the instances alleged are concerning, and if pled properly, could perhaps support a cognizable legal claim under Title VI. Yet, the Complaint is diluted by instances that no reasonable person could construe as intentional discrimination. For example, Plaintiffs contend that Haverford did not announce the month of May as "American Jewish History Month," and instead only celebrated "Asian American/Pacific Islander Month." Or, Plaintiffs complain that some graduating students at the Spring 2024 commencement donned attire that signified their support for Palestinians—a classic example of protected First Amendment expression. Elsewhere, Plaintiffs include comments made by a professor who does not even attend Haverford. As a result of Plaintiffs' scattered pleading, any serious allegations of actionable discrimination are buried as needles within a haystack of distraction.

Here's Mr. Hommrich's argument, as quoted in the Pennsylvania Record (Nicholas Malfitano) early last year:

"Plaintiff Hommrich is a pioneer in the development and production of solar energy within the Commonwealth, and his company has worked to further develop the use of solar energy as a sustainable and environmentally prudent alternative energy resource in Pennsylvania. Plaintiff's company is a legally compliant, qualified customer-generator that participates in a net-metering program – a program through which utility companies purchase excess (or 'net') solar energy produced by the company at retail value and use such surplus as an alternative energy source for electricity," the suit stated.

"Plaintiff was a successful party in the 2021 Supreme Court of Pennsylvania ruling that affirmed the Commonwealth Court's holding that the Public Utility Commission exceeded the scope of its regulatory authority, by issuing regulations which limited the eligibility of otherwise qualified participants in a net-metering program, and such restrictions were in direct contradiction with the plain meaning and purpose of the Alternative Energy Portfolio Standards Act. Per the Court's ruling in Hommrich, 'The PUC's definitions restrict the field of qualifying participants [in the net-metering program] and, in the process curtail the development of alternative renewable energy in the Commonwealth."

The suit continues the Hommrich decision "contained no mention of any ambiguity or inconsistency within the AEPS Act, no allusion or implication that the Court's ruling regarding the Act thus created a 'loophole,' enabled exploitation of the law, or other similar verbiage; rather, the Court deemed the plain meaning of the terms defined within the Act were unequivocal, and the PUC's modified definitions constituted a violation of its regulatory authority under the Act."

"On Oct. 3, 2023, at 3:18 p.m., defendant published a memorandum to all Senate members titled, 'Renewable Energy & Warehouse Solar Procurement Act.' The memorandum provides that defendant intends to introduce legislation to address perceived gaps in the AEPS Act 'upon the recommendation of the Public Utility Commission,' thus closing the 'Hommrich Loophole by limiting net metering to customer-generator systems designed to generate no more than 110% of the customer-generators' requirements for electricity. Defendant's memorandum pairs plaintiff's name with the term 'loophole,' a term which is widely recognized to refer to an ambiguity in the law which an individual or corporation has exploited for gain," the suit said.

An excerpt from Friday's long decision in State v. Brown, written by Ohio Court of Appeals Judge Pierre Bergeron, joined by Judge Jennifer Kinsley:

In 2023, a grand jury indicted Mr. Brown on one count of robbery …. The court released Mr. Brown on bond with an electronic monitoring unit ("EMU") ankle monitor, but it did not place any restrictions on his ability to possess a firearm. During a home visit by the EMU team, they located a loaded firearm in his apartment. This discovery spawned a new indictment pursuant to R.C. 2923.13(A)(2) for having a weapon under a disability.

The State's robbery case against Mr. Brown eventually collapsed, which led to the dismissal of those charges against him. But …. the weapons under a disability case was still at play ….

[Under Bruen], we ask whether the disarmament imposed by R.C. 2923.13(A)(2), as applied in this case, falls within our Nation's historical tradition of firearms regulation…. [T]he State offers no evidence of any specific historical tradition, dating back either to the founding or reconstruction era, of categorically disarming individuals based solely on the fact of their indictment—either in general, for violent crimes, or for robbery in particular….

Instead, the State tries to broaden the aperture, insisting that felonious behavior justifies a determination that someone cannot be trusted with firearms. In other words, the State suggests that history and tradition grant the states the power to disarm any person found to have engaged in felony conduct.

But … Mr. Brown … had only been indicted for a felony offense when the State charged him with possessing a weapon under a disability…. [A]ny categorical felon-disarmament rule would necessarily rest on the disarmed individual's conviction. And a felony conviction, to the founding generation, meant at least two things: (1) trial by jury, and (2) a heightened burden of proof, understood today as proof beyond a reasonable doubt….

Dec. 20's N.J. appellate court decision in Saadeh v. N.J. State Bar Ass'n (opinion by Judge Allison Accurso, joined by Judges Katie Gummer and Kay Walcott-Henderson) upheld various race, sex, sexual orientation, and other preferences that the New Jersey Bar Association—a private, voluntary organization that had as members 16,000 of the 98,000 New Jersey licensed lawyers—set up for various leadership positions. The court applied Dale v. Boy Scouts of America (2000), which held that the Boy Scouts had a First Amendment right to exclude gays from being assistant scoutmasters, who helped convey the Scouts' values; the same, the court held, protected the Association's decisions:

[T]he Bar Association qualifies as an expressive association, and … compelling it to end its practice of ensuring the presence of designated underrepresented groups in its leadership would unconstitutionally infringe its ability to advocate the value of diversity and inclusivity in the Association and more broadly in the legal profession.

The record reflects the Association's many forms of public expression and advocacy on matters of public concern, including the importance of diversity within the Association, in the legal community, and in continuing legal education…. [T]he Bar Association also engages in expressive activity in determining the composition of its governing Board of Trustees and other leadership bodies.

The Association's by-laws are explicit in requiring representation of a cross-section of its membership on the Board of Trustees, the Nominating Committee and JPAC [Judicial and Prosecutorial Appointments Committee]. In addition to allocating slots to members representing the county bar associations and a mix of sections, the by-laws also reserve slots for members representing demographic groups historically underrepresented in the Association's leadership, a consciously deliberate choice expressing the Association's vision of diversity and inclusion in the Association and in the broader legal community.

Given the Bar Association engages in expressive activity and that it does so through its method for filling at-large seats on its Board of Trustees, Nominating Committee and JPAC, we next consider whether compelling the Association to alter or eliminate its inclusion program "would significantly affect" the Association's "ability to advocate" its viewpoints. See Dale.

As the Bar Association argues in its brief, its "message is clear"; it "deeply values diversity in the legal profession," and it expresses that value in the "intentional makeup" of the Board and Committees that lead the Association. The Bar Association's decades-long commitment to diversifying its leadership, as established in the record, leaves no doubt about the sincerity of its commitment.

1/6/1964: New York Times Co. v. Sullivan argued.

An interesting column yesterday in the Washington Post. An excerpt:

The crisis of democratic government then, is actually a crisis of progressive government. People seem to feel that they have been taxed, regulated, bossed around and intimidated by left-of-center politicians for decades — but the results are bad and have been getting worse.

New York, where I live, and Florida, where I often visit, provide an interesting contrast.

They have comparable populations — New York with about 20 million people, Florida with 23 million. But New York state's budget is more than double that of Florida ($239 billion vs. roughly $116 billion). New York City, which is a little more than three times the size of Miami-Dade County, has a budget of more than $100 billion, which is nearly 10 times that of Miami-Dade. New York City's spending grew from 2012 to 2019 by 40 percent, four times the rate of inflation. Does any New Yorker feel that they got 40 percent better services during that time? …

The Volokh Conspiracy

More on Birthright Citizenship and Undocumented Immigrants

Challenge to California Policy Limiting Teachers' Disclosure to Parents of Student's Changed Gender Identity …

"FIRE to Defend Veteran Pollster J. Ann Selzer in Trump Lawsuit over Outlier Election Poll"

Why Did the D.C. Circuit Make It More Difficult to Find Opinions? -- Redux [UPDATED]

A Test Suite for Proposals to Restrict "Doxing"

Prof. Michael McConnell on The Supreme Court's Religion Docket

Is Threatening to Kill Jews Generally—with No Person or Institution Specifically Named—Punishable?

Today in Supreme Court History: January 7, 1972

Hail to the Chief!

How Political Ignorance Helped Cause the January 6 Attack and Trump's Subsequent Political Comeback

Monday Open Thread

Arrest for "Hate-Based Threats to Kill News Reporter and Her Family"

Court Rejects Title VI Lawsuit Over Alleged Anti-Semitism at Haverford College

David Hommrich Wins Case (Now Called Hommrich); Legislator Files Memo About "Closing the Hommrich Loophole"; Hommrich Sues for Defamation

Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment

Private Voluntary Bar Association Has First Amendment Right to Discriminate Based on Race, Sex, Sexual Orientation

Today in Supreme Court History: January 6, 1964

Fareed Zakaria, "The Crisis of Democracy Is Really a Crisis for the Left" / "Why Is the Left Flailing? Look at New York vs. Florida"

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