The Volokh Conspiracy

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

From Wednesday's decision in Libertarian National Committee, Inc. v. Saliba, by Sixth Circuit Judge Julia Smith Gibbons, joined by Judges Guy Cole and Chad Readler:

This trademark action arises out of a dispute within the Libertarian Party of Michigan (referred to by name or as the "Michigan affiliate"). The Libertarian National Committee, Inc. ("LNC") sued dissenting members of the Michigan affiliate—mainly former officers of the affiliate or board members of local parties—for using the LNC's trademark to hold themselves out as the official Michigan affiliate after a turnover of power resulted in two factions claiming to hold power.

The district court granted the LNC's request to preliminarily enjoin the dissenting members' use of the mark, and the dissenting members appealed. They argue that the district court's application of the Lanham Act to the context of noncommercial speech both unduly expands the Act and violates the First Amendment. Even if the Lanham Act covers the dissenting members' use of the trademark, they argue that their use was authorized and not likely to cause confusion [details on this omitted -EV].

The circuit court largely agreed with the district court, concluding that trademark law may permissibly restrict confusing uses of another entity's name as "designat[ing the] source" of speech, goods, and services, even in political speech rather than commercial advertising:

In Taubman Co. v. Webfeats (6th Cir. 2003), this Circuit addressed the use of a shopping mall's trademark in domain names by the creator of a "fan site" and, after the relationship between the parties soured, a gripe site for that mall. The website creator contended that his purpose for using the mall's trademark in his websites was expressive rather than commercial, and thus outside of the realm of the Lanham Act and protected by the First Amendment. In combatting the defendant's allegation that the Lanham Act conflicted with the First Amendment, the Taubman Court reasoned that the Lanham Act is constitutionally sound "because it only regulates commercial speech, which is entitled to reduced protections under the First Amendment." …

In explaining why the defendant's use of the mall's mark was protected expression, the Taubman Court expounded that the defendant used the mark to comment on the trademark holder—not "to designate source." Jack Daniel's Properties, Inc. v. VIP Prods. LLC (2023). In other words, the defendant did not use the mark to pass off the goods or services advertised on his website as those of the shopping mall.

Since Taubman, the Supreme Court has explained how the Lanham Act and the First Amendment interact when a defendant uses a trademark to misrepresent his or her goods or services as those of or associated with the trademark owner. Just last year, the Court noted that where a defendant uses a trademark as a source identifier, "[t]he trademark law generally prevails over the First Amendment." Jack Daniel's Properties. This is because use of a trademark as a source identifier undermines the primary function of trademark law, which is to prevent "misinformation[ ] about who is responsible for a product" or service. Such is true even where the defendant's use of the mark also conveys an expressive message. Cf. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm. (1987) ("The mere fact that the [nonprofit defendant] claims an expressive, as opposed to a purely commercial purpose does not give it a First Amendment right to appropriate to itself the harvest of those who have sown."). In that circumstance, "the likelihood-of-confusion inquiry does enough work to account for the interest in free expression."

Show Comments (9)

8/30/1967: Justice Thurgood Marshall takes the oath.

Today I recorded the We the People Podcast with Jeff Rosen and Matt Seligman. We discussed one of several cases called United States v. Trump. No, not the immunity case. Instead, we talked about the appointment of Jack Smith as special counsel. I though this was a wide-ranging and informative conversation. Also, Seligman and I both presented arguments before Judge Cannon in March.

You can listen here.

[I am happy to share this guest post from Professor Seth Barrett Tillman, which addresses some discourse on legal academia, including a recent post by Will Baude.]

There has been much back-and-forth on social media and blogs lately about what constitutes good behaviour for academics. Having been in academic affrays from time to time—mostly unsought by me—I thought I would add my thoughts on that and some closely related issues.

1. E-mail.

For academia to work, we have to be free to talk to one another. And that means contacting one another, without fear of sanctions. From time to time, I have sent or offered to send other academics, in law and other fields, courtesy copies of my drafts and published articles. I often make such offers to people whom I have cited or people who have written about one of the topics discussed in my paper. Usually, I will receive one of two pro forma responses. Many will write back: "Thank you very much, I am sure I will benefit from reading your contribution to the literature, as time allows." Alternatively, I will sometimes receive: "Really—no need for e-mail contact in the future—I stay abreast of developments in the literature." The virtue of these two responses is their directness, clarity, and guidance: they leave you no doubt about whether future contacts are desired. Yes to the former; no to the latter.

Still, on other occasions, I have not received any response at all. And that produces a quandary: Do you contact that person again? So, a year or two or three later, I might have another paper, and I might e-mail a non-responding recipient a second time or third time or fourth time. At that juncture, I might receive a pro forma response. But I might not. At that juncture, I might get a (pleasant) response along these lines:

Professor A: Dear Professor Tillman—thank you so much for writing me. Your article comes timely as I am writing/teaching on this topic currently, and I will be sure to cite/discuss your new perspective. (Albeit, I am not saying, I agree with it!) I now see also that you wrote me on several prior occasions. My mistake—your e-mails went to my spam folder, or perhaps, I just did not recognize your name and mistakenly ignored your e-mail. I won't do so again.

This has happened to me more than once, and it has led to fruitful contacts, intellectual exchanges, and occasionally, friendships.

On other occasions, you get another sort of response.

Professor B: Mr Tillman, I have received your recent e-mail, as well as several prior e-mails. I chose not to respond to your prior e-mails. But you still persist in contacting me. You should have taken the hint. But seeing that you have not: stop now.

In situations involving a non-responding e-mail recipient, we can let Professor-A or Professor-B set the norm for good (academic) behaviour. We can value autonomy, privacy, and peace of mind. If so, a first-non-response becomes a basis for a sender's refraining from future contacts. Or, we could let Professor-A set the norm. In that situation, a non-response counts for nothing because it lacks clarity and directness. This leaves the possibility open that future contacts will be welcomed. As they sometimes are.

So what to do?

Given that our business—academia—exists to develop ideas, my view is that one ought to risk upsetting many Professor-B-type-individuals to discover any one Professor-A. It is this latter strategy that permits the exchange of ideas, even if it risks some unwelcome and some unpleasant contacts. I might add: unpleasant for both the recipient and the sender. To put it another way, I do not think we should let the most fragile personalities amongst us set the ground rules for intellectual contact.

2. Responses As Counter-Authority.

I have had the good fortune of putting forward novel ideas from time to time. Putting forward a new idea poses challenges. One such challenge is: What to do with counter-authority? Any development of counter-authority runs the risk that one will present such evidence in a biased manner in order to insulate one's idea from criticism. And even if one does not do that, more than a few readers might very well suspect that you have done so. That's why in the past, I have actively solicited responses to my articles to be published along with my own. I either reached out to the respondent myself (usually to several potential respondents) or had the journal, where my publication was placed, do so. See, e.g., Lawson (2005); Levinson (2006); Bruhl (2007); Kalt (2007); Calabresi (2008); Blomquist (2009); Prakash (2009); Sheppard (2009); Bailey (2010); Peabody (2010); Teachout (2012, 2014, 2016); cf., e.g., Hoffer (2014); Kalt (2014); Melton (2014); Stern (2014); Baude (2016). In one of these exchanges, I had good reason to believe that I had information unknown to the respondent—so, I sent that information to the respondent, leaving it to that individual how (if at all) to make use of the information and how to present it.

There are many benefits to this approach, albeit, there are some downsides too. On the upside: First, it frees up your allotted journal space to present your idea as a standalone idea. Second, it leaves it to others how best to knock your idea down—and such points, as necessary, can be addressed in replies. Third, the exchange itself makes both publications attractive to readers—as the exchange itself is some indicia that a serious idea is at stake, and that the idea and counterpoints are well presented. Fourth, by inviting a third party to respond, you often make a friend, particularly if that person is a junior academic who is happy to have an extra publication. The downside is that there will be a few less-than-well-informed readers who are not bemused by your new idea, who believe that they have a monopoly of expertise, and who are entirely unaware of the existence of the response, and so, they are led to think that obvious counter-authority has been ignored—if not wilfully hidden from the readers. (Of course, they know all about what was purportedly hidden.) Here too, I do not think we academics should live in fear of the most mistaken and most suspicious amongst us—otherwise, we lose the advantages I outlined above. See, above, First through Fourth.

3. Changing One's Mind.

It is a good thing that what are considered settled issues are re-opened from time to time. Moreover, people should get to change their minds. Indeed, if a person has never changed his mind or has never expressed doubt about ideas he has held, then it is fair to ask what sort of mind that person has. When a person changes his mind—particularly in public—they court opprobrium for doing so. Rather than punishing people for risking their reputation, we should praise their courage.

Recently, Professor Calabresi has changed his mind. In 2008, he thought I was wrong about one of my novel ideas about the Constitution's "office"- and "officer"-language. More recently, he has taken the opposite view. Professor Baude has moved in the opposite direction in regard to my novel idea about the Constitution's "office"- and "officer"-language. In 2016, he put forward praise. More recently, he has taken a different position. Although I understood their 2008 and 2016 views, I really do not understand why they have changed from their prior positions. But that's my problem, not theirs. They have started a new conversation. They work on their schedules; they don't owe me a further detailed explanation about why they changed their views. Perhaps, they are each satisfied that they have put forward grounded, fully fleshed-out explanations for their change of position. Perhaps, they think that I just do not understand their new reasons for having changed their minds. And if so, they have no reason to return to these issues.

In any event, both Calabresi, in 2008, and Baude, in 2016, and both Calabresi and Baude during the recent Trump-related ballot-access litigation (2023 and 2024) spelled my name correctly and cited my material correctly. So, I have nothing about which to complain. I hope that one day they both return to these issues, but that's just a hope. And if they do not do so, they and I have plenty of other things to do with our time.

4. What Academics Should Not Do On Social Media.

There are more than a few legal academics whose behaviour on social media fails to meet the standard for good behaviour. They publicly deprecate ideas, causes, individuals, and organizations in hyperbolic terms. The problem here is not the lack of public reason. (That's a problem, but it is not the problem.) The problem here is not the injury, deserved or not, incurred by the targets of their tweets, and the concomitant social media mob. (These are problems too, at least, where the injury is not entirely deserved.) Rather, the problem is the model these academics are setting for students—including their own students.

The legal academics who engage in this sort of behaviour have tenure. They are part of a protected class enjoying institutional goodwill and privilege arising in connection with special protections which accrued to universities during feudalism. Our students do not enjoy such benefits. And employers, public and private, now monitor the social media footprints of both those who apply for work and extant employees. When students copy the less than wholesome behaviour of these academics, they may find themselves unemployed and unemployable. These academics are trading their students' futures for the rush of an exhilarating barb.

Anyway, that is social media. Academic articles are, arguably, another thing. Perhaps the standards are different. Still, if your articles systematically describe others' work-product as "appalling" or "wacky" or "bonkers" or in other similar language … you might not be Raising the Sanity Waterline. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605 (2024).

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

Today, the Biden Administration Department of Homeland Security restarted the CHNV (AKA "CNVH") migrant sponsorship program for migrants from Cuba, Haiti, Nicaragua, and Venezuela:

The Biden administration is reopening an updated version of a migrant sponsorship program it paused abruptly earlier this summer due to concerns about fraud, Department of Homeland Security officials said Thursday.

First set up in late 2022 and expanded in early 2023 as a way to divert migrants away from the U.S.-Mexico border, the initiative allows up to 30,000 people from Cuba, Haiti, Nicaragua and Venezuela to fly to the U.S. each month if U.S.-based sponsors successfully apply to support them….

After a weeks-long pause, the Department of Homeland Security is restarting the program with an enhanced screening process for those applying to sponsor migrants under the policy. The government will now require those who wish to sponsor migrants to submit fingerprints for the vetting process. Officials also plan to more closely review the financial and criminal records of would-be sponsors, and increase scrutiny of repeat sponsors….

Sponsors need to be U.S. citizens or permanent residents, or hold another legal immigration status. The fraud concerns about the program centered around would-be sponsors, not the migrants, who also undergo security vetting before being allowed to book travel to the U.S.

DHS officials said an initial probe into potential fraud within the program found that a majority of cases of concern had a "reasonable explanation," including filing errors. But officials said the review did find some cases involving fraud, including prospective sponsors using fraudulent Social Security numbers. A small number of applicants have been referred to law enforcement for further investigation and potential prosecution, officials said.

It's good that the administration has restarted the program. In a previous post, I explained why it should never have been suspended in the first place; see also this Reason article by Cato Institute immigration policy specialists David Bier and Alex Nowrasteh. The fact that DHS appears to have found only a few cases of fraud by sponsors and none at all by actual migrants, is further evidence that the pause was a mistake.

I worry that the new fingerprinting requirement and other additional vetting will make an already excessively bureaucratic application process more complicated and time-consuming, without much affecting the already-low rate of fraud. DHS should be simplifying the process, not making it more difficult. The administration would also do well to drop the arbitrary 30,000 per month cap for migrants from all four nations combined.

The CHNV program is vital as both a way to help migrants escape horrific oppression and violence (including at the hands of Cuba, Nicaragua, and Venezuela's brutal socialist governments), and for reducing disorder at the border. CHNV migrants, like previous migrants from Latin America, also make valuable contributions to our economy.

As noted in my previous post about the pause, I am a sponsor in the Uniting for Ukraine program, which is very similar to CHNV and uses the same forms and procedures (at least up until now); indeed, CHNV is largely based on U4U. I have also advised CHNV sponsors and applicants (on an unpaid basis). I am, therefore, familiar with how the program works, and with the application process.

My forthcoming Cato Supreme Court Review article, "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson," is now available on SSRN. Here is the abstract:

In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the Court ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy.

Section 3 states that "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.

In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for "insurrection." Part III considers the question of whether the January 6 attack qualifies as an "insurrection," and—more briefly—whether Trump "engaged" in it. The answers to both questions are "yes," though the second is a closer call than the first. Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court's effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.

Politics

Show Comments (764)

Here are plaintiff's factual allegations, as reported in Monday's decision by Judge Jacquelyn Scott Corley (N.D. Cal.). in Loggins v. Leland Stanford Jr. Univ.:

Dr. [Ameer Hasan] Loggins is a "black, African American, Muslim male[.]" He earned his doctorate degree from the University of California at Berkeley in 2019. Stanford hired him as a lecturer in August 2023.

On October 10, 2023, Dr. Loggins led two Stanford class discussions on settler colonialism and sought "to have a difficult dialogue" about "dehumanization, Israel, and Palestine." He "wanted the focus to be on the Palestinian civilians. [Dr. Loggins] also wanted to complicate the ways in which many frame the Israel and Palestine 'conflict,' which is through the frame of Jewish people vs. Muslim people." So, Dr. Loggins "asked whether any Jewish students were present in the classroom, in an effort to speak to the diversity within the Jewish diaspora and to demonstrate to the students that the Jewish diaspora is not one with a monolithic politic."

Dr. Loggins then led an "exercise to create a scene within a scripted space" wherein he selected two students "(one white/Jewish male and one woman of Asian descent)" in each class section based on their seat and "physical size to illustrate a power differential between the large and the small, the oppressed and the oppressor." After the selected students agreed to participate in the exercise, Dr. Loggins took their backpacks and computers and directed them to stand facing the classroom window. Dr. Loggins told the participating students they could come from facing the window if they could produce identification. The purpose of the exercise was to illustrate "profiling and policing within a scripted space." Dr. Loggins asserts Gaza "is an extreme version of a scripted space."

Free Speech Libel Campus Free Speech

Show Comments (19)

It is often said that journalism is the first draft of history. In the case of Emmett Till, a prominent news story about his murder was long taken as the definitive account of his death at the hands of J.W. Milam and Roy Bryant. Newly discovered documents, however, conform suspicions more people were involved in Till's horrific death.

The Washington Post reports:

A journalist whose 1956 article was billed as the "true account" of Emmett Till's killing withheld credible information about people involved in the crime, according to newly discovered documents.

William Bradford Huie's article in Look magazine helped shape the country's understanding of 14-year-old Till's abduction, torture and slaying in Jim Crow-era Mississippi. The article detailed the confessions of two White men who previously had been acquitted by an all-White jury in the killing. The men told Huie they had no accomplices.

Yet Huie's own research notes, recently released by the descendants of a lawyer in the case, indicatehis reporting showedthat others were involved andsuggest he chose to leave that out when it threatened the sale of his story. He also was seeking a movie deal about the killing and had agreed to pay the two acquitted men, J.W. Milam and Roy Bryant, part of the proceeds.

If Huie had fully reported what he'd learned, it could have led to charges against additional participants in the murder, three historians say.

As the Post report indicates, many had believed that additional people participated in Till's murder, but the Look story deflated efforts to pursue additional conspirators.

Black journalists had been pressuring Mississippi officials and the FBI to investigate and charge additional suspects in the case. Huie's "true account," with its assurance that only two men were involved and its depiction of Till as a defiant brute, effectively ended that effort.

"This confession, as it was touted, suddenly seemed enough to satisfy everybody," said Devery S. Anderson, author of a 2015 book on the Till case. If Huie had reported everything he had learned, "it's possible these other people would have been indicted," Anderson said, though he also said they could have been acquitted.

Justice Jackson's memoir, Lovely One, hits bookstores next week. To promote the book (for which she reportedly received a nearly $900,000 advance), Justice Jackson sat down for an interview with Norah O'Donnell of CBS News.

Jackson, in an interview with "CBS Evening News" anchor and managing editor Norah O'Donnell, suggested the ruling gives Trump special treatment compared to anyone else in the criminal justice system.

"I was concerned about a system that appeared to provide immunity for one individual under one set of circumstances, when we have a criminal justice system that had ordinarily treated everyone the same," she said. . . .

Interestingly enough, this interview dropped the same week that Special Counsel Jack Smith refiled his indictment against Donald Trump for his attempts to overturn the 2020 election.

Justice Jackson also addressed the prospect of more election litigation.

Asked whether she was prepared for cases relating to the upcoming election to end up before the Supreme Court, Jackson replied that she is "as prepared as anyone can be."

"I think there are legal issues that arise out of the political process. And so, the Supreme Court has to be prepared to respond if that should be necessary," she said.

Based on the short clips that have been released, and CBS News' reporting, it appears that Justice Jackson is being fairly circumspect in what she says about the Court's work, and not saying all that much that cannot be gleaned from her opinions. If so, that is probably a good thing (and much better than what we sometimes saw from the late Justice Ginsburg).

CBS will air the full interview will air this weekend.

8/29/1967: Justice Neil Gorsuch's birthday.

I: The Object-Level Scholarly Debate

One of the oldest questions of constitutional law is whether, and to what extent, the President has the power to remove other executive branch officials; as well as whether, and to what extent, Congress has the power to regulate or restrict any such power. It dates back to congressional debates in 1789, the impeachment debates of Andrew Johnson, and Supreme Court cases from Myers v. United States, to Humphrey's Executor v. United States, to Seila Law v. CFPB.

Another one of the oldest questions of constitutional law is whether, and to what extent, the Constitution's vesting of "the executive Power" in "a President of the United States of America" includes various powers not specifically enumerated elsewhere in Article II. The two questions are different, but they overlap, because one of the strongest arguments for an executive removal power is the argument that appointment and removal of executive officers was understood as an executive power even without being specifically enumerated.

The scholarly debate about these questions has been rich and keeps getting richer. Two recent articles by Professor Julian Davis Mortenson, The Executive Power Clause, and Article II Vests the Executive Power, Not the Royal Prerogative, (also guest-posted on this blog) address the second question, and argue against a robust reading of unenumerated or residual executive power; in various formulations, they describe the executive power as being limited to "law-execution," or as being an "empty vessel," containing only the powers vested by other laws.

Meanwhile, Professors Aditya Bamzai and Saikrishna Prakash recently published an article, The Executive Power of Removal, that addresses the first question. They argue that the executive power did include the power to remove other executive branch officials, and that Congress's ability to regulate this power is limited. Professors Andrea Katz and Noah Rosenblum published a somewhat sharp response to Bamzai & Prakash (Removal Rehashed). Bamzai & Prakash have now published a somewhat sharp reply to Katz & Rosenblum (How to Think About the Removal Power).

Along the way, Katz & Rosenblum argued that Mortenson's work refutes Bamzai & Prakash's, because if the executive power is an empty vessel, limited to law-execution, it would seem not to include a removal power. On the other hand, Bamzai & Prakash reply, there is an ambiguity in how to understand Mortenson's thesis (and the evidence on which it relies). Mortenson's articles do not specifically address the removal question, and they allow the possibility that the law-execution conception of the executive power might include an appointments power (as some evidence suggested). If the law-execution conception of the executive power included an appointments power, because the power to appoint was incidental to law-enforcement it might (or might not) also include a removal power.

Bamzai & Prakash believe this to be part of a broader ambiguity in Mortenson's thesis. The idea that executive power is an empty vessel, and the idea that it is limited to enforcing the law, are very similar and one could argue that they are two appendages of the same elephant. Maybe they are. But how should we think about, for example, a law that says that the President should not be the one to enforce it? One could say that the President cannot enforce such a law, because executive power is an empty vessel; or one could say that the President can enforce such a law, because the one executive power is the power of law enforcement.

The question of what to think about a law that says that the President cannot remove other officials who enforce the law is related. Perhaps the one executive power is the power of law enforcement, including the power to superintend those who enforce the law; or perhaps Congress has the power to say that the President cannot superintend law enforcement in various cases. Bamzai & Prakash thus argue that Mortenson's articles do not refute their thesis.

II: The Twitter Debate

This last piece of the exchange provoked unusually sharp responses on Twitter/X from Mortenson, who described Bamzai & Prakash as "selling false descriptions of [his] work," and wrote that "other responsibilities trump the obligation to be kind." He believes that their misunderstanding of his work cannot reflect a serious and sophisticated attempt to engage with it: "at best, these are the criticisms of people who didn't go beyond control F at second best, these are the criticisms of busy, careerist, disengaged, and incurious interlocutors at third best, these are the criticisms of 11th grade debaters at nationals." His more recent tweets have turned the temperature up still higher. Professor Jed Shugerman also joined in with a series of posts.

These reactions in turn produced a lot more responses both on and off of Twitter, as well as a lot of meta-commentary that something unusual and heated seemed to be going on among con law scholars. (No links for this paragraph, sorry.)

My view is that this turn has been unhelpful, and indeed unjustified. It may well be that Katz & Rosenblum (along with many many other scholars before them) have the better view of the removal question. And it may well be that there is a clear answer to the question of how the empty vessel thesis relates to Congress's power to regulate or restrict the enforcement of the law. It might even be true that the answers to those questions could have been divined by a more careful reader already—although I confess that I have been following this debate for many years, reasonably carefully, and I do not know the answers to them.

But the best way for legal scholars to ventilate these questions is through various forms of legal scholarship. I will say from experience that sometimes one writes a brilliant article which is completely correct but fails to convince all good-faith readers of that article. And sometimes one believes that one's brilliant article has already clearly resolved some issue, but some good-faith readers of that article somehow didn't understand what one clearly said. In those cases, it is sometimes useful to write more, to discuss ancillary sub-issues, to explain more, or more clearly, or differently. Nobody is under an obligation to respond to everybody else, or to respond on their timelines, but for better or worse, in a world of human legal scholars, this is part of how scholarship advances.

(I should add that Mortenson (and Shugerman, more on whom in a moment) has produced a number of links, screenshots, and substantive tweets getting in to the object-level issues to some extent. I found these somewhat difficult to follow, but I tried, and I didn't understand them to clarify the underlying ambiguity, about which I remain unsure.)

Finally, Shugerman's interventions also make a number of allegations about scholarly integrity, the sharing and citations of drafts, who said what to whom at conferences, and so on. In my view, these allegations are mostly misleading, and entirely poisonous. But my own judgment may be affected by the fact that I was a collateral target in one of Shugerman's earlier witch-hunts, and so I won't say more about them here.

I am a defender of law-professor-twitter, and I find it a valuable medium for discovering new work and ideas, especially outside my close circles. But this has been a bad episode for scholarly values and scholarly norms.

III: Constitutional Law in the Legal Academy

I suppose this is obvious, but part of the reason this dispute seems to have sparked such a reaction online is that there is a lot of underlying ideological tension among constitutional law professors generally, and about questions of executive power in particular. These seem to have hardened into patterns of suspicion about the legitimacy of even engaging with scholars who disagree on these issues.

As I speak to friends on both sides of this debate (offline), I hear liberal law professors express the concern that conservative law professors are careerist liars who are deceiving the courts into doing bad things to the country; and I hear conservative law professors express the concern that liberal law professors are a close-minded ideological monolith who refuse to engage seriously with counterarguments and weaponize their control over the legal academy to make up for their lack of control over the courts. Not all law professors – everybody always stresses that – but when you have written a brilliant article, and it has failed to convince everybody, and then people who read it say things about it that seem obviously dumb and wrong to you . . . well what are you supposed to think?

This pattern is nothing new, but it is the obligation of those of us in the legal academy to resist it, and hopefully one day to shatter it. That requires careful, patient engagement on the object level. It requires careful, patient engagement on the object level even when we are convinced that our interlocutors are not as careful and patient as we are. It requires using norms of argumentation that raise the sanity waterline – norms such as evidence and logic and free inquiry, and not appeals to personal honor. And it is not something that any of us can do alone, or in ideological silos.

Donald Trump speaks at a rally in Glendale, Arizona. (Gage Skidmore/Zuma Press/Newscom)

Yesterday special counsel Jack Smith filed a revised, superseding indictment in the federal criminal case against Donald Trump for his attempts to overturn the results of the 2020 presidential election. The revised indictment attempts to address the Supreme Court's flawed decision in Trump v. United States, which ruled that presidents have broad immunity against criminal prosecution for "official acts," but was far from clear about exactly how far that immunity extends. On an e-mail list that we are both members of, Princeton legal scholar Kim Lane Scheppele posted a helpful summary of how the revised indictment differs from the original one, which she has kindly agreed to allow me to reprint here:

Complying with the SCOTUS immunity decision, Smith seems to have scrubbed all "official conduct" evidence from the case and presented it again before a new grand jury, which brought forth this indictment. That move makes it more difficult for the Trump legal team to claim that the case should be dismissed because the evidence presented to the grand jury was tainted. They've clean-teamed this all the way down.

The indictment charges the same four crimes as before.

But the indictment leaves out Jeffrey Clark as an unindicted coconspirator given what SCOTUS said about absolute immunity of the president in his conversations with the Justice Department.

The indictment emphasizes that the other unindicted coconspirators are all PRIVATE citizens working on the campaign or as consultants. And it makes clear that the various other actors implicated and whose testimony will be called upon at trial are NOT talking with Trump in the scope of his duties as president.

Crucial elements of the case are now attributed to CANDIDATE Donald Trump and Candidate Mike Pence so that it is clear that they are not interacting as president and vice president in the relevant conversations.

The Just Security analysis by Norm Eisen, Matt Seligman and Joshua Kolb had flagged which parts of the indictment they thought would stand and which would not – and that analysis was pretty spot-on – see https://www.justsecurity.org/98457/immunity-january-6th-chutkan/ and https://www.justsecurity.org/wp-content/uploads/2024/08/united-states-v.-trump-dC-%E2%80%93-annotated-j6-eisen-seligman-kolb.pdf

For a line by line comparison of the new indictment and the original, see Allison Gill's post here. Lawfare and Jacob Sullum of Reason have also posted helpful analyses of the superseding indictment.

Will the superseding indictment survive inevitable immunity-based challenges? I think Smith makes a good case that the crimes Trump is charged with are private acts, not official ones, and that - even if official acts cannot be used as evidence (as the Supreme Court wrongly ruled), there is enough evidence against Trump to convict on all or most of the charges. Justice Amy Coney Barrett's concurring opinion in the Supreme Court decision provides additional analysis on why Trump's conduct here was private, not official (though it is notable that none of the other majority justices joined her). I also continue to believe that Trump is likely guilty on these charges and, if convicted, deserves severe punishment for reasons of both retribution and deterrence.

But the Supreme Court ruling is far from a model of clarity on several key points relevant to the case. Among other things, the line between private acts and official ones is a nebulous one. And when it comes to official acts outside the president's "core powers," it's not clear whether there is a mere presumption of immunity (which can potentially be overcome), or whether the immunity is absolute. The line between core powers and other official acts is also often unclear. Thus, it's hard to predict what will happen here, when the issues are reviewed by the trial judge, the DC Circuit and - potentially - the Supreme Court.

The one thing that is clear is that the issues are unlikely to be fully resolved before the election on November 5. If Trump wins, he will almost certainly find a way to get the charges dismissed after he takes office. If he loses, the case against him (or at least part of it) will proceed, unless courts rule that all the charges are barred by immunity. The latter scenario strikes me as unlikely, but not completely impossible.

Again, the Supreme Court's decision is vague on key points, and different judges are likely to interpret it differently. If the case returns to the Supreme Court, we may even find that the majority justices disagree among themselves on some of these questions. The ambiguities in the ruling may be a way to paper over these differences, at least for the time being. We may learn more about what the justices think on these issues, as this legal battle continues.

From yesterday's decision in U.S. v. Medina-Cantu, by Judge Carolyn Dineen King and Kurt Engelhardt:

In U.S. v. Portillo-Munoz (5th Cir. 2011), this court held that 18 U.S.C. § 922(g)(5), which prohibits an illegal alien from possessing a firearm or ammunition, is constitutional under the Second Amendment. In the present case, Defendant-Appellant Jose Paz Medina-Cantu brings another Second Amendment challenge to § 922(g)(5), arguing that Portillo-Munoz has been abrogated by the Supreme Court's decisions in New York State Rifle & Pistol Ass'n v. Bruen (2022), and U.S. v. Rahimi (2024).

We agree with the Government and hold that the Supreme Court's decisions in Bruen and Rahimi did not unequivocally abrogate Portillo-Munoz's precedent. As such, under this circuit's rule of orderliness, we are bound to follow Portillo-Munoz….

We acknowledge that there are reasonable arguments as to why Portillo-Munoz should be reconsidered post-Bruen and Rahimi. For instance, Portillo-Munoz's textual interpretation of the Second Amendment notably did not include a historical analysis, relying instead on the Supreme Court's language in Heller. And Rahimi's discussion of the term "responsible" provides some indication that the Supreme Court may, in future cases, reject other arguments that the Second Amendment's reference to "the people" excludes certain individuals. But, absent clearer indication that Portillo-Munoz has been abrogated, only the Supreme Court—or this court sitting en banc—can overturn our precedent….

Judge Jim Ho concurred in the judgment, concluding that Portillo-Munoz was indeed consistent with Bruen and Rahimi:

The defendant here contends that Portillo-Munoz is no longer good law, in light of recent decisions from the Supreme Court. But there's no basis to question our precedent.

To begin with, no Supreme Court precedent compels the application of the Second Amendment to illegal aliens—and certainly not Bruen or Rahimi. That should be the end of the matter. We should not extend rights to illegal aliens any further than what the law requires. Cf. Young Conservatives of Texas Foundation v. Smatresk (5th Cir. 2023) (Ho, J., dissenting from denial of rehearing en banc) ("Our national objectives are undercut when [we] encourage illegal entry into the United States.").

Guns Immigration

Show Comments (31)

From Ninth Circuit Judge Michelle Friedland's opinion today in Crowe v. Oregon State Bar, joined by Judge John Owens and District Judge William Orrick:

To practice law in Oregon, an attorney must be a member of the Oregon State Bar ("OSB"). An attorney must also pay annual membership dues, which are used to fund OSB's activities. Those activities include administering bar exams, formulating and enforcing rules of professional conduct, and establishing minimum continuing legal education requirements for Oregon attorneys. OSB also lobbies the state legislature and publishes a magazine called the Bulletin..

In the April 2018 issue of the Bulletin, OSB published two statements on "White Nationalism and [the] Normalization of Violence." The two statements were published on facing pages, surrounded by a single dark green border that was not present on the other pages of the magazine. The first statement had OSB's dark green logo on the top of the page, and it was signed by six OSB officers, including the President and the Chief Executive Officer. That statement said:

Free Speech

Show Comments (18)

An excerpt from today's opinion in U.S. v. Connelly, written by Judge Kurt Engelhardt, joined by Judges Jerry Smith and Irma Carrillo Ramirez:

Paola Connelly is a non-violent, marijuana smoking gunowner. El Paso police came to her house in response to a "shots fired" call. When they arrived, they saw John, Paola's husband, standing at their neighbor's door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. {Paola [also] told officers that John and the neighbor used crack and powdered cocaine together ….} A sweep revealed that the Connellys' home contained drug paraphernalia and several firearms, including firearms owned by Paola. There was no indication that Paola was intoxicated at the time.

Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance. Paola argued in a motion to dismiss, and the District Court ultimately agreed, that §§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that § 922(g)(3) was unconstitutional as applied to her under the Second Amendment.

This appeal asks us to consider whether Paola's Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation. The short of it is that our history and tradition may support some limits on a presently intoxicated person's right to carry a weapon (and for that reason Paola's facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage. Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming "dangerous" persons apply to nonviolent, occasional drug users when of sound mind….

[L]aws designed to disarm the severely mentally ill do not justify depriving those of sound mind of their Second Amendment rights. The analogy stands only if someone is so intoxicated as to be in a state comparable to "lunacy." Just as there is no historical justification for disarming citizens of sound mind, there is no historical justification for disarming a sober citizen not presently under an impairing influence….

Guns Drugs

Show Comments (44)

A man in an orange shirt and a vest stands with his back to the camera in front of a wall of long guns, for sale and on display. — Nomadsoul1 | Dreamstime.com

As co-blogger Jonathan Adler notes, on Monday the US Court of Appeals for the Eighth Circuit, upheld a trial court decision striking down Missouri's Second Amendment Preservation Act (SAPA), the state's "gun sanctuary" law. I think the court got the decision wrong. But, in the process, it also essentially laid out a road map by which SAPA and other similar laws could survive judicial scrutiny with only cosmetic changes.

SAPA, like other gun sanctuary laws, bars state and local officials from helping to enforce various federal gun regulations that the state considers to be unconstitutional violations of the Second Amendment. Like the district court, the Eighth Circuit ruling recognizes that "Missouri may lawfully withhold its assistance from federal law enforcement." A long line of Supreme Court decisions has held that the federal government may not "commandeer" state and local governments into helping enforce federal law. In part on that basis, numerous federal court decisions struck down Trump Administration efforts to force liberal sanctuary cities and states to help enforce federal immigration law. Conservative gun sanctuary laws are an imitation of liberal immigration sanctuaries, albeit advancing a right-wing cause rather than a left-wing one.

Nonetheless, the Eighth Circuit struck down SAPA because the state statute says that the federal laws it targets are "invalid." While the state can refuse to help federal law enforcement, that "does not mean that the State may do so by purporting to
invalidate federal law."

This reasoning strikes me as wrong. All SAPA actually does is deny state assistance to federal efforts to enforce certain gun laws. I went over this point in detail in my analysis of the district court ruling. The law does not impede the federal government's own law enforcement efforts. The fact that the state's motive for denying assistance is a belief that the federal laws in question violate the Second Amendment and are therefore "invalid" should be immaterial.

There are situations where an otherwise permissible state law becomes unconstitutional due to illicit motivations (e.g. - if the law is motivated by racial or ethnic discrimination). But a belief that a given federal law is unconstitutional isn't one of them. That's true even if the state legislature is wrong to think the laws in question violate the Second Amendment. Even if these federal laws are perfectly constitutional, the state still has the constitutional authority to refuse to help enforce them.

Such denial of assistance is distinct from "nullification," with which it is often confused. When states try to "nullify" federal laws, as happened in conflicts over slavery, tariffs, and civil rights, they go beyond merely denying assistance to impending federal law enforcement efforts. SAPA and other gun sanctuary laws do not do that.

Another flaw in the Eighth Circuit decision is that it refuses to sever the part of SAPA it found unconstitutional from the rest of the statute, despite SAPA having an explicit severability clause: "We conclude that the law is not severable because the entire Act is founded on the invalidity of federal law." However, SAPA's statement of the reasons for the law ("invalidity") is severable from the operative portions of the statute (which bar state officials from helping to enforce the laws in question). I think the Eighth Circuit, like the district court, also ignored Missouri's requirement that state laws be interpreted to avoid unconstitutionality, where possible (federal courts must defer to state courts in interpreting state law). Here, that means the declaration of "invalidity" should be interpreted as only extending to state assistance to the feds, not any general invalidity of the laws within Missouri's border.

Despite these flaws, the Eighth Circuit ruling actually provides a road map for how Missouri can easily fix SAPA, and protect it against future legal challenges. It could bar state officials from helping to enforce the exact same federal laws, but do so without asserting that the laws are "invalid." Substantively, this revised SAPA would be exactly the same as the current version. But by avoiding references to "invalidity," the state can satisfy the test set up by the Eighth Circuit. After all, the court concedes (as it must) that Missouri has the right to "withhold its assistance from federal law enforcement." Other gun sanctuary states would be well advised adopt similar strategies, especially if they are within the Eighth Circuit's jurisdiction. The state can even still assert the laws in question violate the Second Amendment, so long as it recognizes that doesn't make them completely invalid until a court decision so holds.

If you think this is the kind of legal hair-splitting that makes people hate lawyers, I don't really disagree. But I'm not the one who created this somewhat silly distinction. The Eighth Circuit did.

In sum, this decision should not meaningfully impede state gun sanctuary laws, so long as state legislatures avoid references to the "invalidity" of the federal laws they want to stop state officials from helping to enforce.

Despite the legal and structural similarities between gun sanctuary laws and immigration sanctuaries, most who claim the former are illegal support the latter, and vice versa. I'm one of the relatively few people who support both. In my view, both types of sanctuaries protect valuable forms of liberty against federal overreach, and help empower people to vote with their feet. But, regardless of the policy merits, both are protected by constitutional restrictions on federal commandeering of state and local governments.

From today's Second Circuit decision in Palin v. N.Y. Times Co., written by Judge John Walker and joined by Judges Reena Raggi and Richard Sullivan:

Plaintiff Sarah Palin appeals the dismissal of her defamation complaint against defendant The New York Times ("the Times") and its former Opinion Editor, defendant James Bennet, for the second time.

We first reinstated the case in August 2019 following an initial dismissal by the district court (Rakoff, J.) under Federal Rule of Civil Procedure 12(b)(6). Palin's claim was subsequently tried before a jury but, while the jury was deliberating, the district court dismissed the case again—this time under Federal Rule of Civil Procedure 50. We conclude that the district court's Rule 50 ruling improperly intruded on the province of the jury by making credibility determinations, weighing evidence, and ignoring facts or inferences that a reasonable juror could plausibly have found to support Palin's case.

Despite the district court's Rule 50 dismissal, the jury was allowed to reach a verdict, and it found the Times and Bennet "not liable." Unfortunately, several major issues at trial—specifically, the erroneous exclusion of evidence, an inaccurate jury instruction, a legally erroneous response to a mid-deliberation jury question, and jurors learning during deliberations of the district court's Rule 50 dismissal ruling—impugn the reliability of that verdict.

The jury is sacrosanct in our legal system, and we have a duty to protect its constitutional role, both by ensuring that the jury's role is not usurped by judges and by making certain that juries are provided with relevant proffered evidence and properly instructed on the law. We therefore VACATE and REMAND for proceedings, including a new trial, consistent with this opinion….

The opinion is long (but readable), and interested readers should review the whole thing. But here a few excerpts; first, the factual background:

On June 14, 2017, the Times' Editorial Board published the editorial challenged in this case, entitled "America's Lethal Politics" …, which compared two political shootings. In the first attack, on January 8, 2011, Jared Loughner killed six people and injured thirteen others, including Democratic Congresswoman Gabrielle Giffords, during a constituent event held by Giffords in Arizona ("the Loughner shooting"). In the second, which took place in 2017 in Virginia on the day the editorial was published, James Hodgkinson seriously injured four people, including Republican Congressman Stephen Scalise, at a practice for a congressional baseball game ….

In comparing these two tragedies, the editorial made statements about the Loughner shooting that are the subject of this defamation action. It stated that there was a "clear" and "direct" "link" between the Loughner shooting and the "political incitement" that arose from a digital graphic published in March 2010 by former Alaska governor and vice-presidential candidate Sarah Palin's political action committee ("the challenged statements")…..

Free Speech Libel

Show Comments (44)

The Volokh Conspiracy

Confusing Use of Another Political Group's Name as "Source Identifier" May Lead to Trademark Injunction

Today in Supreme Court History: August 30, 1967

National Constitution Center Podcast on United States v. Trump (Florida Edition)

Some Thoughts on Raising the Sanity Waterline

1. E-mail.

2. Responses As Counter-Authority.

3. Changing One's Mind.

4. What Academics Should Not Do On Social Media.

Biden Administration Restarts CHNV Immigration Parole Program for Migrants From Four Latin American Nations

My Forthcoming Article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson"

Thursday Open Thread

Court Dismisses Lawsuit Over Non-Renewal of Stanford Lecturer Who Conducted "Exercise" on Oct. 10 Allegedly Targeting Jewish Student

Journalist Suppressed Evidence Pointing to Additional Conspirators Involved in Murder of Emmett Till

Justice Jackson Shares Her Concerns about Trump Immunity Ruling

Today in Supreme Court History: August 29, 1967

Executive Power Scholarship: A Three Level Problem

Special Counsel Jack Smith Files Revised Trump Indictment in Election Subversion Case

Fifth Circuit Won't Revisit Its Earlier Precedent Holding Illegal Aliens Lack Second Amendment Rights

State Bar's Ideological Statement May Violate First Amendment Rights of Dissenting Members, If It Purports to Speak for Lawyers Generally

Federal Ban on Gun Possession by Drug Users Is Often Unconstitutional

Eighth Circuit Wrongly Struck Down Missouri's Gun Sanctuary Law - But Also Created a Roadmap for How Such Laws Can Escape Invalidation in the Future

Sarah Palin Gets New Trial in Libel Lawsuit Against N.Y. Times

1. E-mail.

2. Responses As Counter-Authority.

3. Changing One's Mind.

4. What Academics Should Not Do On Social Media.

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

The All-Argentina Issue is Here