The Volokh Conspiracy Archive

There's been much discussion recently about the English government's prosecution, in connection with the recent riots there, of various people who have been seen as advocating violence or hatred. Here's an excerpt from yesterday's New York Times article:

They Spouted Hate Online. Then They Were Arrested.

[Subtitle:] As hundreds of people appear in court for their role in recent anti-immigrant riots in Britain, several are accused of fueling disorder through online posts, raising questions about the limits of free speech.

A 53-year-old woman from northwest England was jailed for 15 months after posting on Facebook that a mosque should be blown up "with the adults inside." A 45-year-old man was sentenced to 20 months for goading his online followers to torch a hotel that houses refugees. A 55-year-old woman was questioned by the police for a viral post that wrongly identified the suspect in a deadly knife attack at a children's dance class.

The article goes on to note that English law is less protective of free speech than American law, and that much is correct. But I think it's also worth noting that speech urging the commission of a specific crime against a specific target is likely constitutionally unprotected even in America. In particular, calling for people to blow up a particular mosque (which is what the woman mentioned in the article seemed to be doing) or burn down a particular hotel would almost certainly fall within the "solicitation" exception to the First Amendment (or perhaps within the "solicitation" facet of the broader "speech integral to criminal conduct" exception).

That exception is not as well-known as other exceptions, such as for true threats of illegal conduct, incitement of imminent and likely illegal conduct, defamation, child pornography, and so on. But the Court has made clear that it does exist, most recently in U.S. v. Hansen (2023):

[This is the ninth post in my series on my mission to Israel. You can read Parts I, II, III, IV, V, VI, VII, and VIII.]

After our mission left the Nir Oz Kibbutz, we traveled to the site of the Nova Music Festival. Think of burning man (not that I've ever been): a music festival in the middle of the desert. On October 7, this festival was being held close to the Gaza Border. According to some reports Hamas was not even aware this gathering would occur. Rather, the terrorists happened upon the festival. They murdered more than 360 civilians in cold blood, and took about 40 as hostages.

These were the last people in the world who would ever want war, or even think about politics. For lack of better word, they were hippies--committed to peace, love, and happiness. As it was described to me, the music festival raged throughout the night, and around sunrise reached the crescendo. That is when the missile attacks began. And shortly thereafter, terrorists approached the complex and began to murder. People tried to drive or run away, but they were shot and captured on the one road to the festival.

This post, like my others, will have some sensitive content. I encourage you to read on, with care. Moreover, this post does not have any particular structure. Rather, it reflects my observations, as I recall them.

The heading of the post comes from a 2019 Wisconsin restraining order case. The judge there ordered a woman "to cease posting any information about your parents on social media referencing indirectly or directly reference either one of them"—not just defamatory speech, or threatening speech, or otherwise constitutionally protected speech, but any information about the woman's parents. And the court added, "Court informs the respondent that all the craziness described in these petitions needs to stop totally."

That injunction, I think, is unconstitutional; there's no "craziness" exception to the First Amendment. Nonetheless, I think the reasoning described above is at the heart of quite a few decisions.

Thus, for instance, Monday's Ohio Court of Appeals decision in Kennedy v. Kennedy (Judge John Eklund, joined by Judges Eugene Lucci and Matt Lynch) deals with a trial court order that prohibited the parties from

posting on the Internet and all social media platforms, including, but not limited to, Instagram, any messages, photographs, images, and/or content that fall within the following subject matters:

- Photographs of the parties' minor child …;

- Comments about the parties' minor child;

- Alleged conspiracies or abuse involving the parties' minor child and/or those affiliated with the minor child …;

- References to the present litigation and/or prior litigation in Colorado … involving the parties;

- References to other individuals associated with the present litigation and/or prior domestic relations litigation in Colorado ….

[The parties shall] each take the necessary steps within seven (7) days of the filing of this Order to remove any and all previous content … which contain messages, commentary, photographs, images or other content referring to the above-referenced subject matters.

8/22/1998: On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. The Supreme Court considered the constitutionality of his prosecution for cross burning in Virginia v. Black (20030.

From Evans v. Cabot School Dist., decided Thursday by Eighth Circuit Judge Michael Melloy, joined by Judges James Loken and Jonathan Kobes:

Two high school brothers were arrested for disorderly conduct after wearing {military-style} tactical vests to school. {Kameron's vest had a "U.S. Army" patch on it. The parties agree that the vests were not real tactical or military vests, nor were they bulletproof. Kameron's vest was mostly obscured under a large winter coat he was wearing. Noah did not have his coat on over his vest. Kameron also carried a green duffle bag that he used to carry his ROTC equipment. The Officers describe the bag as a "military-style duffle bag," but the Evanses dispute that the duffle bag was military-style. Kameron alleges that he regularly used the bag to carry his marching band and ROTC equipment, in addition to his Airsoft war game equipment.}

The brothers were acquitted, and sued the school resource officers; the court held that the officers weren't entitled to qualified immunity on the brothers' claim that they were arrested without probable cause in violation of the Fourth Amendment:

From Monday's decision by Judge Amanda Brailsford (D. Idaho) in Cox v. Bingham County Sheriff's Office:

On November 9, 2021, Plaintiffs Chelsea Cox and six minors were leaving "personal written notes that were folded into paper turkeys" "at the front doors of community members" in "expressions of gratitude for the Thanksgiving season." After placing a note at a front door, the minors "pressed the doorbell [and] then ran off to maintain anonymity."

When they went to Defendant Bingham County Sheriff Craig Rowland's home, he "responded to his doorbell ring by having his wife hand him his service-issued sidearm"; "exited the house brandishing his firearm"; "reached into the car and Yanked (sic) Ms. Cox from the car by pulling her hair"; "pointed his gun at [her] head"; and threatened to kill her. Sheriff Rowland was later criminally charged and pled guilty to one count of aggravated assault in August 2022.

The opinion concluded that the lawsuit could only go forward against Rowland personally, not against the Sheriff's Office as his employer:

From Van Deelen v. Jones, decided Friday by Chief Judge Alia Moses (S.D. Tex.) (for more on the underlying scandal, see here):

The Amended Complaint alleges a sprawling tapestry of ethical lapses by major players in the nation's bankruptcy system. The Defendants insist that these accusations, however salacious, create no viable cause of action for the Plaintiff to pursue. Upon reviewing the applicable law and the Plaintiff's allegations, the Court agrees and dismisses the Plaintiff's claims—though it does so with some consternation….

The Plaintiff alleges that the Defendants—a former Chief United States Bankruptcy Judge, his romantic partner, and two firms with nationally renowned bankruptcy practices—rigged the nation's busiest bankruptcy court for profit and prestige. This scheme propelled the Defendants to national prominence and yielded tens of millions of dollars in attorneys' fees, all drawn from bankruptcy estates at the expense of creditors. The Defendants advanced this scheme, the Plaintiff claims, through a pattern of deception that included the concealment of a romantic relationship between then-Chief Judge David R. Jones ("Jones") and Elizabeth Freeman ("Freeman"), a partner at Jackson Walker, LLP ("Jackson Walker") and Jones's former law clerk.

This relationship, while unknown to the public, was an open secret among the close inner circle of lawyers whom Jones appointed to dozens of the most lucrative bankruptcy cases in the country. According to the Plaintiff, the Defendants' scheme diminished the financial recovery of parties, like him, with a pecuniary interest in the cases Jones oversaw. The Plaintiff ultimately seeks relief from what he calls "perhaps the most significant bankruptcy scandal in U.S. history." …

From Monday's opinion by Judge Denise Casper in Natale v. Barstool Sports, Inc. (D. Mass.):

Pro se litigant Diana Natale has filed a civil complaint, in which she alleges that the defendants published defamatory false statements against her, invaded her privacy, and shared her personal information in a podcast [apparently Barstool's The Case] without her consent….

Natale has filed several ex parte motions to impound [i.e., seal]…. Natale asks that "names of the parties, the docket, and all documents filed herein to date" be impounded. She also asserts that, "because of the nature of [her] complaint and the parties involved," if the motions are denied, "this will be all over the internet at first light possibly compromising the case."

The Court DENIES these motions to impound. There is a long-standing common law presumption of public access to judicial records. "[P]ublic monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system." Although "it is within a court's discretion to curtail the common law presumption of public access, '[o]nly the most compelling reasons can justify non-disclosure of judicial records.'"

Here, Natale has not set forth an adequate basis for the Court to order the impoundment of the "names of the parties, the docket, and all documents filed" in this case. The thrust of Natale's claim is that the defendants have recently widely broadcasted false statements that, thirty years ago Natale and her then-minor children engaged in criminal or otherwise reprehensible misconduct. There is no "compelling reason" to curtail access to alleged misinformation that, even as alleged by Natale, is already largely available to the public. In addition, there is no basis for preventing the public from learning that Natale seeks recourse for the defendants' alleged misconduct….

The court also dismissed the case because of lack of federal jurisdiction over this sort of tort law claim (absent sufficient allegations, which Natale didn't provide, of total diversity of citizenship among the parties).

[This is the eighth post in my series on my mission to Israel. You can read Parts I, II, III, IV, V, VI, and VII.]

The concept of an Israeli Kibbutz is likely foreign to most readers. Historically at least, these collective farms were operated according to the principles of socialism. Everyone worked according to their abilities on the farm. And everyone received food and shelter according to their needs. Now is neither the time nor the place to discuss the economic viability of these models. Needless to say, Kibbutzim (the plural of Kibbutz) became an important aspect of the Israeli pioneer culture before and after independence.

During our mission to Israel, we visited Kibbutz Nir Oz in the south of Israel about one mile from the Gaza Border. On October 7, about 25% of the four-hundred residents of Nir Oz were either killed or abducted. The Kibbutz is currently unoccupied. It looked like a ghost town. Everywhere you looked, there were burned-out buildings, shattered glass, and bullet holes. I visited the kibbutz shortly after I visited Yad Vashem, the Holocaust museum. The horrific sights made me think of the Holocaust, but it was still fresh and raw.

Our guide that day was Sharon Lifschitz. She grew up on that Kibbutz with her parents, Oded and Yocheved. On October 7, her eighty-five year old father and eighty-three year old mother were taken hostage and brought to Gaza. Her mother, Yocheved, was freed in late October, but her father is still held in captivity.

As readers may infer, people who lived on Kibutzim were not right-wingers. They were very much left-wing, and had great sympathy for the situation of the Palestinians. Indeed, Oded Lifschitz spoke fluent Arabic. He had many friends in Gaza. He was a peace activist who opposed the settlements. He would regularly drive to the Gaza border in a Kibbutz vehicle (no kibbutz member owned a car) and would take sick Palestinians to a hospital in Jerusalem. The Kibbutz employed workers from Gaza, and ensured they would be paid wages. These were the last people in the world who deserved to be murdered, raped, kidnapped, and held hostage. Indeed, there is some evidence that the workers on the kibbutz provided Hamas with intelligence of where to attack and what the vulnerable locations would be. Still, Sharon did not blame the workers. She said they likely faced threats to their own families and did what they had to do. These people are far more magnanimous than I could have imagined.

I asked Sharon where she finds the strength to go on, knowing that her father is held only a few kilometers away. She said that people must go on. There is trauma, but no time to mourn. Unlike September 11, 2001, where the tragedy ended fairly quickly, this pain is ongoing. Sharon hoped her father was able to get along well with his captors, and he was being treated humanely. But there is no way to know for sure. The uncertainty is the pain. Sharon repeated over and over again that there is no reason to hold an eighty-five year old hostage. He should be released on humanitarian grounds. But these savages are not humanitarians.

This post will walk through the trip to the Kibbutz, largely chronologically. I was able to document this trip with photographs. The descriptions are as accurate as I can recall.

8/21/1798: Justice James Wilson dies.

From Free Speech Coalition, Inc. v. Rokita, decided Friday by Judges Frank Easterbrook and Amy St. Eve:

Indiana seeks a stay of the preliminary injunction that a district court entered preventing the enforcement of Ind. Code § 24-4-23, which requires web sites to limit minors' access to certain sexual materials.

Indiana's statute is functionally identical to one adopted by Texas. That statute has been held to be valid [by the Fifth Circuit, though the Supreme Court has agreed to hear the case]. Free Speech Coalition, Inc., which is a plaintiff in both the Indiana case and the Texas case, asked the Supreme Court to prevent enforcement of the Texas statute while that litigation continued. That application was denied, so the Texas statute is now in force.

We do not see any adequate reason why Texas's law may be enforced pending the [Supreme Court's] decision on the merits in Free Speech Coalition v. Paxton, while Indiana's may not be enforced. Functionally identical statutes should be treated the same while the Supreme Court considers the matter. Accordingly, Indiana's request for a stay is granted. The stay will remain in effect until the Supreme Court has issued its mandate in Free Speech Coalition v. Paxton.

Briefing in this appeal will be deferred until the Supreme Court has decided Free Speech Coalition v. Paxton.…

But Judge Ilana Rovner concurred in part (as to deferring briefing) and dissented in part (as to the stay of the trial court injunction):

[A.] From today's Pennsylvania Supreme Court majority opinion in Oberholzer v. Galapo, written by Justice Kevin Dougherty, joined by Chief Justice Debra Todd and Justices Christine Donohue and Sallie Updyke Mundy:

Dr. Simon and Toby Galapo (appellants) own a home in Abington Township, Montgomery County, the rear yard of which borders the property of Frederick and Denise Oberholzer (appellees). Although the properties are separated by a creek, low-lying shrubs, and some tall trees, the houses and yards remain visible to one another. In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a "fucking Jew."

This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages "along the back tree-line directly abutting [the Oberholzers'] property line, pointed directly at [the Oberholzers'] house, and in direct sight of [other] neighbors' houses." All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances….

The signs included, among others, "No Place 4 Racism," "Hitler Eichmann Racists," "Racists: the true enemies of FREEDOM," and twenty more. The Oberholzers sued, claiming the Galapos' posting of the signs constituted "(1) private nuisance; (2) intrusion upon seclusion; (3) defamation – libel and slander; (4) publicly placing the Oberholzers in false light; and (5) intentional infliction of emotional distress." The trial court ordered the Galapos to move or reorient the signs so that they "be positioned in such a way that they do not directly face and target [the Oberholzers'] property: the fronts of the signs (lettering, etc.) are not to be visible to [the Oberholzers] nor face in the direction of [their] home."

Today, the Pennsylvania Supreme Court held the injunction violated the Pennsylvania Constitution's free speech clause. The Court applied its 1978 precedent in Willing v. Mazzacone, which generally suggested that injunctions against speech (in that case, against libel) are unconstitutional prior restraint, and held that it applied to this situation as well. Recent court decisions throughout the country have mostly concluded that the federal First Amendment doesn't prohibit permanent injunctions against speech found to be constitutionally unprotected, for instance because it is libelous. But state courts are entitled to read their state constitutions as more speech-protective than the federal Constitution. A few excerpts from the 57-page opinion:

So reports the Johns Hopkins Hub; here's the underlying statement, from the President, Provost, and top deans:

As leaders of Johns Hopkins University, we are often called upon in the face of global, national, or local occurrences to issue public statements on behalf of the institution. These requests are usually grounded in a sense of connection to the values and purpose of our university and our common humanity, and on the occasions when we have issued such statements, we have attempted to choose our topics and words carefully.

In recent years, requests for institutional statements have increased in frequency. The subjects upon which we have been urged to speak have varied widely—human rights violations, acts of discrimination, changes in health regulations, incidents of targeted violence, military conflicts, and natural disasters, among others, have led to calls for a university statement.

Often those seeking such statements want us to identify and condemn the actors whom they regard as principally responsible. In other cases, those seeking statements simply desire an expression of concern or sympathy for the persons directly affected by the incident in question. However, we must recognize that taking institutional positions can interfere with the university's central commitment to free inquiry and obligation to foster a diversity of perspectives within our academic community.

[This is the seventh post in my series on my mission to Israel. You can read Parts I, II, III, IV, V, and VI.]

On the final day of our mission to Israel, we visited the headquarters of the IDF Spokesperson in Tel Aviv. This is the public affairs department of the Israeli military. We would attend a screening of surveillance footage of the October 7 attacks. This was a moment I had been thinking about since I agreed to go on the trip. Would I watch it? This descriptions in this post will be quite graphic, though I encourage you--for reasons that will be made clear at the end--to read on through.

8/20/1866: President Andrew Johnson proclaims an "end to insurrection in the United States."

The front page of CNN.com blares the headline, "Prominent conservative endorses Harris, calls Trump a threat to democracy." Below the photograph of Mike Luttig is the caption, "It'll be the first time the retired federal judge, a veteran of two GOP administrations, has voted for a Democrat."

Is Mike Luttig "prominent"? And is he still a conservative? At one point, he was unquestionably both. The former Wunderkind held senior posts in DOJ and was appointed to the Fourth Circuit before most lawyers make partner. He was at the tip-top of the Supreme Court short list, but President George W. Bush passed over him to select John Roberts and Samuel Alito. In 2006, Luttig retired from the Fourth Circuit and became general counsel of Boeing. After that point, he fell off the map. I had completely forgotten about him. I had never seen him at any Federalist Society event. He did not offer any public advocacy. He said nothing about the leading issues facing the conservative legal movement. He was a non-entity.

But then January 6 happened. And the Luttig hagiography emerged. Greg Jacob, Mike Pence's counsel, relates that Luttig had no conversations with Pence prior to January 6. Jacob simply cited some of Luttig's tweets in his already-completed letter. That's it! Yet, somehow, Luttig is commonly viewed as Pence's close advisor, and a person who helped save the Republic. Never happened.

Since January 6, I cannot think of a single "conservative" position that Luttig has taken on anything. He has filed amicus briefs in several Supreme Court cases, always on the liberal side of the issue. As best as I can recall, he said nothing favorable about Dobbs, perhaps the crowning achievement of the conservative legal movement. Most recently, he has said nothing at all about Senator Schumer's nuclear jurisdiction stripping bill. He has organized a new organization that is meant to be a counter to the Federalist Society. All of his pro-democracy advocacy may as well be an in-kind donation to the Kamala Harris campaign. Formally endorsing Harris was a foregone conclusion. By what measure can Luttig still claim to be a conservative?

David French also recently endorsed Kamala Harris (which I flagged here). He offered this self-reflection:

I'm often asked by Trump voters if I'm "still conservative," and I respond that I can't vote for Trump precisely because I am conservative. I loathe sex abuse, pornography and adultery. Trump has brought those vices into the mainstream of the Republican Party. I want to cultivate a culture that values human life from conception through natural death. Yet America became more brutal and violent during Trump's term. I want to defend liberal democracy from authoritarian aggression, yet Trump would abandon our allies and risk our most precious alliances.

The only real hope for restoring a conservatism that values integrity, demonstrates real compassion and defends our foundational constitutional principles isn't to try to make the best of Trump, a man who values only himself. If he wins again, it will validate his cruelty and his ideological transformation of the Republican Party. If Harris wins, the West will still stand against Vladimir Putin, and conservative Americans will have a chance to build something decent from the ruins of a party that was once a force for genuine good in American life.

French, Luttig, and others have joined the august company of people like John Paul Stevens and David Souter, who insist that they never moved to the left, but the conservative party moved too far to the right. Tell me about it. To paraphrase Rahimi, legal conservatism is not trapped in amber. To paraphrase Forest Gump, conservative is as conservative does. As I wrote last year, "there should be a statute of limitations for calling a person a legal conservative."

[After a brief hiatus, this is the sixth post in my series on my mission to Israel. You can read Parts I, II, III, IV, and V.]

It is difficult to describe the extent to which October 7 impacted the psyche of Israelis. In particular, there is a constant awareness of the hostages. Walls and billboards throughout the country are plastered with the familiar sign: the person's name and age in red letters against a white background; a photograph of the person in happier times; and bold letters: "Bring Him/Her Home Now!"

From the moment you get off the airplane, you see over one hundred posters lining the ramp to customs.

Various locations curate different ways of remembering the hostages. At the National Library of Israel, a poster of each hostage was placed on a chair, with a book that person enjoyed. For the Bibas brothers, who were nine months and four years old when kidnapped, they had kid chairs and kid books.

The signs appear everywhere. The only experience that I can slightly relate to was the prevalence of American flags after 9/11. At least in New York, I think almost every kid brought an American flag to school for at least some period after the terrorist attacks. But eventually that patriotism faded; or, as I learned a new word, the patriotism became jingoism.

Artists also created illustrated versions of the sketches.

Again, the drawing of the Bibas brothers was especially heart-breaking. The younger son has now spent more of his life as a hostage than outside.

During our mission, we visited the headquarters of the Hostage & Missing Family Forum. This organization sprung up in the wake of October 7 to advocate for the interest of families of those who were taken hostage, as well as those whose bodies were missing in Gaza. In a fairly short period of time, a sophisticated operation developed.

This board depicts all of the various media outlets the group has appeared on.

But there are divisions. Not everyone agrees what "Bring them home now!" means. Is this message an ultimatum to Hamas? Or an ultimatum to the Netanyahu government?

Even among Israelis, there is a stark disagreement about how to handle the hostage situation. In years past, Israel went to great lengths to bring back hostages, including by releasing many dangerous prisoners--including Yahya Sinwar, who has become the head of Hamas. What is the cost of bringing back the hostages? What is the cost of not bringing back the hostages? These questions are exceptionally difficult. I think media coverage only shows the side of the poor families who want their loved ones brought home at any cost. But, as with any public policy decision, costs are never so easily balanced.

We met with one woman whose nephew, a soldier, was kidnapped on October 7. She described the agony of not knowing whether he was dead or alive. They held a funeral for him, with an empty casket. She later found out that he had been killed, but at the time, did not know where his body was.

Shortly after our trip, the body of Staff Sgt. Tomer Yaakov Ahimas, 20 was recovered from Gaza and brought to Israel. They were able to hold a proper funeral with Tomer's remains.

I will continue this series tomorrow with a post about the restricted surveillance tapes.

The Volokh Conspiracy

First Amendment Doesn't Protect Speech That Solicits a Specific Crime

Mission to Israel Part IX: The Nova Music Festival

"All the Craziness … Needs to Stop Totally"

Today in Supreme Court History: August 22, 1998

Wearing a "Military-Style" Tactical Vest to School Isn't a Crime

Ding-Dong-Ditch-Get-Attacked-By-Sheriff-at-Gunpoint

"The Amended Complaint Alleges a Sprawling Tapestry of Ethical Lapses by Major Players in the Nation's Bankruptcy System"

"There Is No Basis for Preventing the Public from Learning That Natale Seeks Recourse for the Defendants' Alleged Misconduct"

Mission to Israel Part VIII: The Nir Oz Kibbutz

Today in Supreme Court History: August 21, 1798

Interesting Stay Dispute in Seventh Circuit Minors'-Access-to-Porn Case

Court Reverses Injunction Against Anti-Anti-Semitic Speech Targeted at Neighbor

"Johns Hopkins University Articulates Restrained Approach to Issuing Public Statements"

Mission to Israel Part VII: The Surveillance Video

Today in Supreme Court History: August 20, 1866

Is Mike Luttig A "Prominent Conservative"?

Monday Open Thread

Mission to Israel Part VI: The Hostages

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