The Volokh Conspiracy Archive

An Arkansas statute (Act 372) makes it a crime (in its section 1) for librarians and booksellers to "[f]urnish a harmful item to a minor." The U.S. Supreme Court has held that the First Amendment doesn't protect distribution of "obscenity," a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973), though with extra detail added by Smith v. U.S. (1977), Pope v. Illinois (1987), and Brockett v. Spokane Arcades, Inc. (1985):

"the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest" (which means a "shameful or morbid" interest in sex as opposed to a "normal, healthy" interest);
"the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards], [c] sexual conduct specifically defined by the applicable state law"; and
"the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards]."

And the Court has also held that the law may bar distribution to minors of sexually themed material, if it fits within what's basically the Miller test with "of minors" or "for minors" added to each prong (e.g., "the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with "to minors" added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test with "to minors" added to each prong as well. This category is often labeled material that is "obscene for minors" or "harmful to minors." (It's a completely different First Amendment exception from the one for child pornography, which focuses not on the recipient of the material but on the person depicted in the material.)

Now of course minors vary sharply in age, so this raises the question: Is a work "obscene as to minors" when it has value for a 17-year-old (or isn't patently offensive when displayed to a 17-year-old) but lacks value for a 5-year-old? Back in 2004, the Arkansas Supreme Court basically said such a work is indeed obscene as to minors; and because of this, Judge Timothy Brooks (W.D. Ark.) held today in Fayetteville Public Library v. Crawford County, Section 1 of Act 372 is likely unconstitutional:

From Saturday's decision in Rogers v. Low Income Investment Fund, decided by Judge William Alsup (N.D. Cal.):

In this employment-discrimination action, a non-profit community development organization and its then-employees move for summary judgment against a job applicant's claims that they did not hire him for a job monitoring grants in low-income communities because he is black. The head of human resources who communicated the denial and bore the brunt of his accusations now also moves for summary judgment. Both motions are GRANTED. A motion for sanctions is GRANTED….

The whole opinion is long (over 8700 words), so I just thought I'd excerpt the sanctions section, which also discusses some of the facts and some of the bases the court gave for granting summary judgment; for more, see the full opinion:

As a result, the merits of this action have been decided against Rogers, as have the merits of every one of Rogers's previous discrimination actions brought and concluded in this district. Now, LIIF moves for sanctions.

Rogers is a perpetual claimant. Over ten years ago, a state court [in San Diego County] found Rogers vexatious. Recently, after Rogers had not requested to file a new action in that county for more than five years, Rogers's repeated application for the order to be vacated was finally granted. {The form order does not provide a reasoned decision, but the five-year threshold for filings in the county may have been decisive ….} Rogers by then had relocated to the Bay Area, and the record shows his litigation energies are now directed here.

Rogers has abused the right to come to court by pursuing an unmeritorious cause and by trying to extort a settlement by threat of defamation. The sanctions motion explains that such conduct could amount to criminal extortion, and plainly amounts to bad faith. The motion also identifies attorney's fees that but for Rogers's improper conduct LIIF and its employees would not have incurred.

As examples of the conduct:

This morning, the White House announced that President Biden has commuted the death sentences of 37 of the 40 federal death row inmates. I wonder whether the President has ignored the rights and interests of crime victims' family members in granting mass commutations.

The Justice Department does have in place an announced policy for processing requests for executive clemency in capital cases. Under the Department's "Rules Governing Petitions For Executive Clemency sec. 1.10/Procedures Applicable to Prisoners Under a Sentence of Death Imposed by a U.S. District Court," victims' families (like a death row inmate's representatives) are supposed to generally have an opportunity to make a presentation to the Office of the Pardon Attorney before clemency is granted:

(c) The petitioner's clemency counsel may request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney in support of the clemency petition. The presentation should be requested at the time the clemency petition is filed. The family or families of any victim of an offense for which the petitioner was sentenced to death may, with the assistance of the prosecuting office, request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney.

In reading today's "fact sheet" from the White House, I see no reference to the Department having contacted victims' families or otherwise conferring with them before making the decision. The large numbers of commutations the President issued at the same time--all in the waning days of the current Administration--makes me wonder whether the Administration has simply left victims' families outside of the process.

As the Justice Department rules suggest, a fair process in considering commutations would necessarily involve at least hearing from victims' families before making any final commutation decision. And there does not appear to be any logistical barrier to conferring with the victims' families. The U.S. Attorney's Offices who have handed these 37 cases, no doubt, have ways to quickly contact family members. The federal Crime Victims' Rights Act (CVRA) broadly commands that victims (and family members in homicide cases) have the "right to be treated with fairness and with respect for the victim's dignity and privacy." Failing to confer with victims family members who have gone through a long and arduous capital trial and sentencing process is difficult to square with this command. And the Justice Department's own Attorney General Guidelines for Victims and Witness Assistance indicate that "[t]his broad-based right [to fair treatment] is central to the purpose of the CVRA and should serve as a guiding principle for Department personnel that governs all interactions with crime victims." A.G. Victims Guidelines at 70, art. III, sec. j.

My suspicions that the victims' families have been ignored in this commutation process are heightened by the fact that in another case--U.S. v. Boeing--the Department has paid little attention to victims' families. Indeed, a federal judge has found that the Department violated the federal Crime Victims' Rights Act in reaching its decisions without conferring with victims' family members.

Here, of course, the President has constitutional power to commute federal sentences, including federal death sentences. And in this short post, I don't take a position on the substantive pros and cons of the 37 commutations. My question is simply a procedural one that goes to the fairness of the process: In making the commutation decisions, has the President followed standard procedures and given the victims' families an opportunity to confer with appropriate officials before making a final decision? Perhaps such conferrals have taken place and these details have not been publicly disclosed. But from the information I've been able to review quickly, that seems unlikely … and, once again, victims' families rights and interests are apparently being ignored in some larger political manuever.

From Guam Code Ann. § 19.70:

(a) A person is guilty of simple stalking if he or she willfully,
maliciously, and repeatedly, follows or harasses another person or who
makes a credible threat with intent to place that person or a member of his or
her immediate family in fear of death or bodily injury.

(b) A person is guilty of advanced stalking if he or she violates
Subsection (a) of this Section when there is a temporary restraining order or
an injunction or both or any other court order in effect prohibiting the
behavior described in that Subsection against the same party.

Rather an odd locution, it seems to me; the term would normally be something like "aggravated stalking," or the crime might be divided into first-degree and second-degree stalking. But legislatures can name things as they please.

12/23/1745: Chief Justice John Jay's birthday.

12/22/1789: Justice Levi Woodbury born.

From yesterday's Third Circuit decision in Reading v. North Hanover Township, written by Judge Thomas Hardiman and joined by Judges Kent Jordan and David Porter:

Angela Reading, a mother and former school board member, alleged that federal and local government officials violated her right to free speech by engaging in a campaign of censorship and retaliation after she posted comments on Facebook. She requested a preliminary injunction to prohibit those officials from further interfering with her First Amendment rights. After the District Court denied her motion, Reading appealed.

{Reading's allegations are serious and raise important questions under the Free Speech Clause of the First Amendment. Reading expressed concern about whether her seven-year-old daughter was being exposed to sexual topics that have no place in an elementary school. Regardless of whether one agrees with Reading's concern, the record suggests that Defendants' response to her blog post was, to put it mildly, disproportionate.}

Although much of the government actors' behavior was beyond the pale, the record does not show a substantial risk that their acts of censorship and retaliation will recur. So Reading lacks standing to seek a preliminary injunction….

Yesterday's decision by Judge William K. Sessions III (D. Vt.) in University of Vermont Students for Justice in Palestine v. University of Vermont upheld the University's interim suspension of UVMSJP for violating various rules in setting up a 10-day long tent demonstration on the University's Davis Center Green in Spring 2024:

Using the Davis Center Green to the exclusion of others for non-commercial solicitation without a reservation;

Disruption of scheduled tabling and other reservation of space outside the Davis Center;

Disruption of normal student engagement and/or academic work patterns;

Setting up tents ("temporary structure") on the Davis Center Green without a permit and declining to remove them when requested;

Overnight occupancy of a temporary structure;

Encouraging and facilitating the violation of policy by other students.

UVMSJP sued over this suspension of the group's recognized student organization privileges (the lawsuit wasn't about any academic suspension of any particular students). The court, though, granted the university's motion to dismiss, concluding that even if the facts were as UVMSJP had alleged, they wouldn't amount to a violation of the First Amendment. First, the court rejected plaintiffs' prior restraint claim:

In Healy v. James (1972), the Supreme Court considered whether a college violated the plaintiffs' free association rights when it denied recognition of their student group. Ultimately, the Court remanded the case for reconsideration of the plaintiffs' claims, as it was unable to "conclude from this record that petitioners were willing to abide by reasonable campus rules and regulations." … Healy noted that recognition of a student group, "once accorded, may be withdrawn or suspended if petitioners fail to respect campus law."

More recently, the Supreme Court considered a case in which Hastings Law School denied Registered Student Organization status to a Christian student group ("CLS") that excluded students based on religion and sexual orientation. Christian Legal Society v. Martinez (2010)…. The Supreme Court … [held] that by requiring CLS to comply with all school policies and regulations, Hastings was merely imposing a "reasonable, viewpoint-neutral condition on access to the student-organization forum," while CLS was seeking "not parity with other organizations, but a preferential exemption from Hastings' [nondiscrimination] policy."

The Court finds that both Healy and Martinez support Defendants' contention that a university may take action against a student organization when the university's rules have been violated. Whether those actions are constitutional, however, will largely depend on both the lawfulness of the underlying rules and the extent to which the university's actions were in concert with those rules. The Court must therefore proceed to UVMSJP's additional constitutional challenges.

The court held that the relevant program of student group access to university property, resources, and recognition was a limited public forum, in which the government's actions as property owner need only be reasonable and viewpoint-neutral. And the court concluded that these actions were indeed reasonable and viewpoint-neutral:

12/21/1922: Justice Pierce Butler takes oath.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition: Does the Supreme Court want to overturn Kelo v. New London? We're asking them to overturn Kelo v. New London. Swear to heck. Click here to learn more.

New on Unpublished Opinions, IJ's roundtable podcast: Is a pun worth keeping if you have to explain it in a footnote? Plus, other weighty jurisprudential questions.

New on the Short Circuit podcast: UCLA's Joanna Schwartz and Kasia Wolfkot of the Brennan Center talk with IJ's Anya Bidwell about civil rights reforms at the state level.

From Monday's decision by Judge Joseph Dawson, III (D.S.C.) in Lemoine v. Horry Georgetown Technical College:

In September 2024, Leigha Lemoine … was enrolled in the cosmetology program at Defendant Horry Georgetown Technical College ("HGTC"). On September 5, 2024, while Lemoine was off-campus, Lemoine's boyfriend's roommate—who was not an HGTC student—insulted Lemoine. Later that day, Lemoine detailed the incident in a Snapchat group text that included other HGTC students. Therein, Lemoine posted the following:

But naw I was trying to be nice but f[***] that some random ugly a[**] in bread looking f[***] dude called me a b[****] he needa get blasted….

On September 11, 2024, some students at HGTC reported that they "fe[lt] uncomfortable and somewhat unsafe" due to Lemoine's use of "the term 'blasted'" in the Snapchat….

School officials met with Lemoine, who "denied [the Snapchat had] anything to do with physical harm" and said she "only intended that the roommate 'needed to be held accountable and called out for his behavior.'" The officials at first accepted that, but two days later they

discovered a one-year-old video of Lemoine posted on Instagram, in which Lemoine fired a handgun at a target. While firing the handgun, Lemoine was "wearing a western[-]style outfit …." … Lemoine explained [to school officials] that the gun in the video "did not belong" to her and she had never fired a gun before that time….

Apparently because of the combination of this Snapchat and the year-old video, Lemoine was suspended until Summer 2025, based on a student code provision forbidding "[e]ngaging in any activity that disrupts the educational process of the college, interferes with the rights of others, or adversely interferes with other normal functions and services."}

Specifically, [a school administrator] wrote that "[i]n today's climate," Lemoine's "failure to disclose the existence of the video" and "use of the term 'blasted'" created "a significant amount of apprehension related to the presence and use of guns" and that "both employees and students" at HGTC "feel unsafe due to these circumstances." …

Lemoine sued, and the court issued a preliminary injunction ordering that she be readmitted. The court concluded that the speech likely didn't fall into the First Amendment exception for "true threats" of illegal conduct:

From U.S. v. Wilson, decided yesterday by Ninth Circuit Judge Danielle Forrest, joined by Judge Patrick Bumatay and District Judge James Donato (N.D. Cal.) (for a similar result in a case alleging selective prosecution against alleged white supremacist rioters, see U.S. v. Rundo (9th Cir. 2024)):

On May 31, 2020, Defendants-Appellees Nathan Wilson and Christopher Beasley allegedly joined a protest in Santa Monica, California [following the killing of George Floyd] and set fire to a police car. They were both federally indicted on one count of arson. Defendants moved to dismiss their indictment, arguing that they were unconstitutionally singled out for prosecution based on the perception that they held anti-government views.

The panel held (disagreeing with the trial court) that defendants weren't entitled to "discovery on their selective-prosecution claim":

The Executive Branch has "'broad discretion' to enforce the Nation's criminal laws." Thus, a "'presumption of regularity supports' … prosecutorial decisions and, 'in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.'" Selective-prosecution claims—assertions that a prosecutor has brought charges for reasons forbidden by the Due Process Clause of the Fifth Amendment—require courts "to exercise judicial power over a 'special province' of the Executive." …

Given the separation-of-powers concerns at play, the standard for proving selective prosecution is "a demanding one." The Supreme Court has established a two-factor standard: the defendant must demonstrate "clear evidence," first that the decision to prosecute "had a discriminatory effect and[, second,] that it was motivated by a discriminatory purpose." "[T]he showing necessary to obtain discovery" on a selective-prosecution claim is "correspondingly rigorous," and is intended to be a "significant barrier to the litigation of insubstantial claims." …

To show discriminatory effect sufficient to warrant discovery, a defendant must "produce some evidence that similarly situated defendants … could have been prosecuted, but were not." … Defendants argued to the district court that they were unconstitutionally prosecuted based on a policy of the Trump Administration to prosecute an arbitrary class: "'individuals associated with protests who the government thought held anti-government views, regardless of what actual views they held.'" And they asserted that to evaluate the discriminatory effect of their prosecution, the district court should look to "a control group consisting of 'all individuals whom the [U.S. Attorney's Office] could charge federally for arson.'" …

Focusing on its selected control group—arsonists in the Central District of California—the district court turned to statistics. It noted that the U.S. Attorney's Office for the Central District brought four arson cases related to the George Floyd protests, two arson cases in the previous 10 years, and nine others in the decade before that. It also highlighted that the George Floyd protest cases were the first stand-alone arson charges brought since 2007. The district court further surveyed arson cases occurring in the area within the Central District overall, finding that between 2010 and 2019, an annual average of 3,500 arsons were reported and 559 were prosecuted. Based on these statistics, the district court found that the U.S. Attorney's Office was "obviously aware of and chose not to federally prosecute far more serious and damaging arsons" than the police-car burning for which Defendants were charged. As a result, it concluded that Defendants met their burden to show evidence of discriminatory effect.

This was an abuse of discretion because the district court "based its ruling on an erroneous view of the law." In defining the control group with only two shared facts—(1) arson (2) within the Central District—the district court did not account for many other facets of the crimes….

Every holiday season, the University of Chicago Law School collects and shares book recommendations from the faculty. Here are three from me:

Klara and the Sun, by Kazuo Ishiguro: A first-person novel told from the point of view of a solar-powered Artificial Friend. It is hard to say much more about the plot without spoiling it or failing to render it as beautifully as Ishiguro does. The book begins with Klara sitting in a shop window, and the reader discovers the world through Klara's eyes, as she manages to explore, understand, and misunderstand it, and develops her own deep relationships, quests, and failures. Written in 2021, but perhaps even more timely today.

The President's Lawyer, by Lawrence Robbins: A page-turner of a novel about the intersection of criminal defense and Washington scandal. The main character is a career litigator whose childhood best friend, the former President of the United States, has been accused of murdering his mistress. Plot twists, personal entanglements, and several entertaining trial scenes ensue. The author (recently deceased) was himself an experienced DC litigator, from criminal trials to Supreme Court arguments, and co-founded his own law firm, Robbins, Russell, Englert, Orseck & Untereiner, where he was once my boss.

Law for Leviathan, by Daryl Levinson: How is constitutional law like international law? Both of them struggle with the fact that there are no international law police or constitutional law police who can directly apprehend and sanction law breakers. That is because they are law for states, and so they must figure out how to establish legal rules without simply relying on any one state to enforce them. This academic but readable book argues that this is possible, but requires a range of strategies outside of simply laying down the law and expecting it to be obeyed. One of the most refreshing books about constitutional law I have read in a while. [You can also hear a Divided Argument podcast discussion with Daryl about this book, Separation-of-Powers Police.]

Here's the whole list. I also recently read and enjoyed the Grover Cleveland biography, which is recommended by my colleague Todd Henderson.

Feel free to make your own nominations in the comments!

12/20/1976: Craig v. Boren decided.

FIRE, which represents the First Amendment Coalition and me in challenging the law, reports:

A federal court, acting on a stipulation agreed to by the California attorney general and San Francisco city attorney, today halted enforcement of a California law that officials deployed to suppress journalism about a controversial tech CEO's sealed arrest records.

Under the law, any person — including journalists, advocates, witnesses, and victims of crimes — faced a civil penalty of up to $2,500 for sharing public information. The court order results from a First Amendment lawsuit filed by the Foundation for Individual Rights and Expression in November, which led the California attorney general and San Francisco city attorney to agree not to enforce the law while the lawsuit is pending….

In October 2023, journalist Jack Poulson published articles about a controversial tech CEO's arrest, sharing a copy of the arrest report sent to him by an unidentified source. The San Francisco Police Department had previously made that report public, even though the executive had successfully petitioned a state court to seal the record.

Almost a year after Poulson published the report, the city attorney of San Francisco — working with the tech executive — sent three letters to Poulson and his webhost, Substack, demanding they remove articles and the sealed report. Those letters threatened enforcement of California's anti-dissemination statute, Penal Code § 851.92(c). The law imposes a civil penalty of up to $2,500 on any person (except the government officials charged with maintaining the secrecy of sealed records) who shares a sealed arrest report or any information "relating to" the report — even if the information is already publicly available.

Concerned by the implications of the statute, FIRE sued the San Francisco city attorney and the California attorney general on behalf of the Bay Area-based First Amendment Coalition, its Director of Advocacy Ginny LaRoe, and legal commentator Eugene Volokh. Each regularly comments on censorship campaigns precisely like the one the tech CEO and city attorney launched against Paulson and Substack. But the anti-dissemination statute prohibited them from covering the CEO story, even though the information has been publicly available for over a year.

Today, the court entered a preliminary injunction agreed to by both California and the city attorney that prohibits them from enforcing the law with respect to publicly available information. The preliminary injunction protects not only FAC and Volokh, but anyone — including journalists like Poulson — who publishes information made available to the public.

The case is proceeding, and there will presumably be briefing as to whether the law should be permanently enjoined; but while that's happening, the law is being preliminarily blocked, as to reporting on publicly available information. Here's an excerpt from FIRE's memorandum arguing in support of the preliminary injunction, which I take it helped persuade the government defendants:

[This post is co-authored by Will Baude and Richard Re and cross-posted at Re's Judicata.]

When a new presidential administration begins, the executive branch often changes position on some cases pending before the Supreme Court. But why wait till inauguration day to hear the views of the incoming administration?

The TikTok litigation casts this question in stark relief. The statute effectively banning TikTok goes into effect on January 19, the day before President-Elect Donald Trump is slated to begin his second presidential term. Recognizing that deadline, the justices have crafted an expedited briefing schedule with oral argument on January 10.

The Biden administration will of course litigate the case. But Trump has made public statements indicating that he may be more supportive of TikTok. In this situation, it might make sense for Trump to appear as an amicus. As the imminent president, he would hardly be a run-of-the mill friend of the court.

New administrations generally try not to change the executive's litigation position too much or too often, since doing so can undermine the Solicitor General's long-term credibility and draw attention to the political nature of the new position. Yet these changes do happen. And when they do, the new administration's views are often informative. The justices can be receptive to them.

For similar reasons, the justices might especially want to know the President-Elect's views on the TikTok case. For example, they might want to know how banning TikTok would interact with Trump's planned domestic and foreign policy plans. They might want to know whether and how the new administration will enforce the law starting January 20. Or they might simply be curious about what a different, new administration thinks about the question presented.

Of course, Amicus Trump would lack the formal trappings of office. For instance, he would not yet have taken his (second) oath of office or be fully in touch with the Nation's national security system. Yet even with those limitations there is significant room for judicial interest in the views of the future executive branch.

In the past, presidents-elect have generally avoided trying to openly disrupt the policies of their lame-duck predecessors before inauguration day. But that norm may already be fraying, as evidenced by Trump's stated views, and the logic behind it might be undermined in a time of sharp political polarization. If any incoming president would buck this norm, thereby creating a new one, it is Donald Trump.

It is even possible to imagine that the justices would invite Trump's views, essentially calling for the views of the president-elect (CVPE). Such a move would also have some appeal in cases like US v. Skrmetti, where the Biden administration's position is almost surely not the one that the Trump administration will or would adopt, and where the new administration's position might affect the viability of the case.

The appeal of a CVPE is at its apex in the Tiktok litigation, which involves a decision almost on the eve of a dramatic turnover in the Executive Branch.

Some excerpts from Canaan v. Carnegie Mellon Univ., decided Tuesday by Judge Scott Hardy (W.D. Pa.); the opinion is 15,000 words, so this can only give a flavor of the matter. First, the allegations from plaintiff's Complaint (which, at this stage of the case, the court assumes to be factually accurate in determining whether the plaintiff has a legal basis for her claim):

Ms. Canaan was taking one of her required studio classes where students receive hands-on, practical instruction in architectural design, making models and applying lessons learned in their other classes. These studio classes typically involve small groups, open discussions, and one-on-one meetings with professors. Students receive critically important feedback individually as well as in small group and class-wide settings. On May 5, 2022, Ms. Canaan had the final review for her semester-long studio class project, which was a model she designed depicting the conversion of a public space in a New York City neighborhood into a private space through an eruv (i.e., an integral feature of neighborhoods with large devout Jewish populations). {Plaintiff's Complaint describes an eruv as a "small wire boundary that symbolically extends the private domain of devoutly religious Jewish households into public areas, permitting activities within it that are normally forbidden in public on the Sabbath."}

In response to questions, Ms. Canaan was explaining the concept of an eruv to Mary-Lou Arscott, Professor and Associate Head for Design Fundamentals at the School of Architecture …, when Professor Arscott cut Ms. Canaan off and told her that "the wall in the model looked like the wall Israelis use to barricade Palestinians out of Israel," and that the time Ms. Canaan had used to prepare her project "would have been better spent if [Ms. Canaan] had instead explored 'what Jews do to make themselves such a hated group.'" …

[Discussion of Canaan's complaints to CMU, and CMU's allegedly dilatory and inadequate responses, omitted. -EV] [A]pproximately six months after Professor Arscott had directed offensive comments at Ms. Canaan in Ms. Canaan's studio class[, ]CMU's administration finally scheduled a meeting with Ms. Canaan and Professor Arscott over Zoom on November 2, 2022. The Complaint describes this Zoom meeting as an unproductive endeavor: the meeting took place, but Vice Provost Heading-Grant said and did nothing as facilitator, Professor Arscott refused to apologize and showed no remorse, and, further, Professor Arscott referenced and subsequently emailed contents of a blog titled "The Funambulist" to Ms. Canaan and Vice Provost Heading-Grant. Professor Arscott urged Ms. Canaan to read the contents of The Funambulist that she linked in the email because it provided her with "insightful … perspective."

According to the Complaint, The Funambulist contains anti-Jewish and anti-Israel content, including, among other things, the promotion of pictures of terrorist organizations throwing Molotov cocktails at Jewish people and articles with titles such as "Israeli Apartheid" and "Israeli Police: The Daily Practice of Collective Punishment Against Palestinians." A sample passage from one article, dated April 8, 2022, that could be considered particularly pertinent to Ms. Canaan's circumstances and Professor Arscott's refusal to apologize reads: "[Y]ou never make concessions to the oppressor. If you're going to get punished, and you might, if you piss off Zionists, it's always a possibility, right, then stare the oppressor in the face, and take whatever punishment is coming. Don't concede, don't start apologizing …. The Palestinians aren't backing down, nor should we … [we] do not make concessions to the oppressor."

There are further allegations, including:

The Volokh Conspiracy

Court Blocks Arkansas Law That Limits "Harmful to Minors" Books in Public Libraries and Bookstores, and Also

"Not Only Is [the Race Discrimination Plaintiff] a Perpetual Claimant, He Is a Holdup Artist"

Did President Biden's Justice Department Confer with the Victims' Families Before the President Commuted Federal Death Sentences?

"Advanced Stalking"

Today in Supreme Court History: December 23, 1745

Today in Supreme Court History: December 22, 1789

Much of Government Response to Parent's Criticism of School Board "Was Beyond the Pale," but Can't Justify an Injunction …

Court Upholds Interim Suspension of Students for Justice in Palestine Chapter for Prohibited 10-Day Tent Demonstration

Today in Supreme Court History: December 21, 1922

Short Circuit: A Roundup of Recent Federal Appeals Court Decisions

Student Suspended for Saying Man Who Insulted Her "Needa Get Blasted" + Having Posted (a Year Before) a Shooting Range Video

No Right to Discovery as to Possible Selective Prosecution in Prosecution for Burning Police Car at George Floyd Protest

Book Recommendations from Me (and My Colleagues)

Today in Supreme Court History: December 20, 1976

Thursday Open Thread

California Officials Agree to Preliminary Injunction Blocking Law That Limits Discussing Arrest Records

Calling for the Views of the President-Elect

Allegation: Carnegie Mellon Prof to Jewish Student: Time on Jewish-Related Project "Would Have Been Better Spent" Exploring "What Jews Do to Make Themselves Such a Hated Group"

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

The All-Argentina Issue is Here