The Volokh Conspiracy Archive

By my count, Justice Gorsuch has written nine opinions in cases in which an Indian tribe or member was a party. My methodology is imperfect--I searched the Supreme Court Database for "+Gorsuch & Indian". But I think I captured all of the relevant opinions. (Please email me if I am missing any.) This total includes majority opinions, concurrences, as well as dissents.

In each of these nine cases, Justice Gorsuch ruled in favor of the Indian tribe or member.

Here is my list:

Upper Skagit Indian Tribe v. Lundgren (2018) - Justice Gorsuch wrote majority opinion finding in favor of tribal sovereign immunity. (Justices Thomas and Alito dissented).
Washington State Department of Licensing v. Cougar Den (2019) - Justice Gorsuch wrote a concurrence, joined by Justice Ginsburg, supporting enforcement of Indian treaty. (Chief Justice Roberts and Justices Thomas, Alito, and Kavanuagh were in dissent).
McGirt v. Oklahoma (2020) - Justice Gorsuch wrote majority opinion finding that Congress did not disestablish Creek Reservation in Oklahoma. (Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh were in dissent).
Yellen v. Confederated Tribes of Chehalis Reservation (2021) - Justice Gorsuch wrote a dissent, joined by Justices Thomas and Kagan, finding that for-profit Alaska Native Corporations do not qualify as "Tribal Governments" for purposes of CARES Act funding. Here, Gorsuch did not rule against a Tribe, because, in his view, ANCs are not actually tribes. Indeed, the Secretary of the Interior does not list the ANCs as federally recognized tribes.
Denezpi v. United States (2022) - Justice Gorsuch wrote a dissent, joined by Justices Sotomayor and Kagan, finding that the Double Jeopardy Clause prohibits second prosecution for violating Code of Indian tribe.
Ysleta Del Sur Pueblo v. Texas (2022) - Justice Gorsuch wrote majority opinion finding that federal law only bans on tribal lands those gaming activities also banned in Texas. This was a victory for Tribal gaming. (Chief Justice Roberts, and Justices Thomas, Alito, and Kavanaugh were in dissent).
Oklahoma v. Castro-Huerta (2022) - Justice Gorsuch wrote a dissent, joined by Justices Breyer, Sotomayor, and Kagan, finding that the states do not have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.
Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (2023) - Justice Gorsuch wrote a solo dissent, finding that the Bankruptcy Code did not abrogate tribal sovereign immunity.
Haaland v. Brackeen (2023) - Justice Gorsuch wrote a concurrence, joined by Justices Sotomayor and Jackson, to provide "an understanding of the long line of policies that drove Congress to adopt ICWA."

How do we explain this 9-0 record? The usual line is that Gorsuch is a westerner. Adam Liptak explores this point in the Times:

In a pair of opinions on Thursday, Justice Neil M. Gorsuch again demonstrated that he is the fiercest proponent of Native American rights on the Supreme Court. That does not surprise people who knew him when he served on the federal appeals court in Denver. "He's from Colorado," said John E. Echohawk, executive director of the Native American Rights Fund. "He's the only Westerner on the court. He knows these issues. He knows these tribes."

I agree with Mike Dorf that this explanation is not entirely persuasive:

At this point, Justice Gorsuch's sympathy for American Indians and Indian tribes cannot be doubted. Its exact source is a bit of a mystery. I have seen it said that, as with Douglas, it comes from the fact that Gorsuch is a westerner. But that's hardly a satisfactory explanation. So were Bryon White, William Rehnquist, and Sandra Day O'Connor, none of whom was a special champion of Indian rights.

Perhaps it's pointless to speculate. People attribute Justice Kennedy's sympathy for gay rights to his personal friendships, but that only raises the question of why he was open to such friendships. Why any of us develops the particular views we have is a complex and perhaps unanswerable question.

Justice Gorsuch exclusively writes opinions favoring Indian tribes and members. And he is consistently on the other side of Justices Thomas and Alito. Moreover, Gorsuch writes with such a passion for the plights of native people. For whatever reason, Justice Gorsuch is committed to the cause. To paraphrase his dissent in Lac du Flambeau, in a case concerning Indian rights, when Gorsuch takes the pen, it is as "good as a possession arrow favoring" the Indian tribe or member.

In a recent post, I wrote about the bipartisan Venezuelan Adjustment Act currently before Congress, which would grant permanent residency rights to some 400,000 Venezuelans who came to the US fleeing their home country's brutal socialist dictatorship. As mentioned in that post, a Ukrainian Adjustment Act was also recently introduced by a different bipartisan group of members of the House of Representatives, Reps. Mike Quigley (D-IL), Bill Keating (D-MA), Brian Fitzpatrick (R-PA), and Marcy Kaptur (D-OH).

Unfortunately, unlike in the case of the Venezuelan Adjustment Act, the Ukrainian Act's official website doesn't include the text of the bill. So I don't know its exact scope, or whether it has any problematic limitations, such as the Venezuelan Act's restriction of permanent residency rights to those Venezuelans who entered the US on or before Dec. 31, 2021. Still, the summary put out in this press release by Rep. Quigley's office seems promising:

Following Russia's illegal, full-scale invasion of Ukraine, the Biden Administration established the Uniting for Ukraine program which has provided a vital pathway for Ukrainian citizens and their immediate family members to temporarily reside and seek safety in the United States. Since February 2022, 271,000 Ukrainians have entered the U.S. - with over 117,000 having been admitted specifically under the Uniting for Ukraine program.

Given the prolonged nature of the conflict, those Ukrainians who have entered the U.S. remain under threat and are unable to return to their homes. The Ukrainian Adjustment Act would provide those Ukrainians who have been paroled into the U.S. since 2014 with permanent residency status, allowing them to work, contribute to society, and maintain a stable life in the U.S. until they are able to return home.

"The Ukrainian Adjustment Act builds on our work to aid Ukrainian refugees. These individuals have fled their homes and their families in the hopes of maintaining their freedom. They need our support and the chance to begin building a new life here in America," said Congressman Quigley. "Let this serve as a reminder that Ukrainian refugees are not the only group in need of permanent status. Those who aided our efforts in Afghanistan and have since fled are still waiting nearly two years after the withdrawal. Ukrainian and Afghan refugees have overcome immeasurable odds and devastation—they both deserve our help."

I wrote about the Uniting for Ukraine program here and here. The figures in the Quigley statement are somewhat out of date, since they only include Ukrainians admitted through February of this year.

If the proposed Act indeed covers all Ukrainians admitted through parole since 2014, it will likely include the vast majority of Ukrainians currently in the US. But it might exclude some who entered prior to February of last year, and were admitted by other means, and later were allowed to stay after the Biden Administration, in March of last year, granted Temporary Protection Status (TPS) to Ukrainians in the United States at that time.

In the post about the Venezuelan Act, I included links to earlier writings summarizing the reasons reasons why granting permanent residency to Ukrainians, Venezuelans, and others fleeing horrific war and oppression is both morally right and serves US economic and foreign policy interests (see, e.g., here and here). In the same post, I also addressed the concern that it is unfair to grant permanent residency to Venezuelans or Ukrainians if we cannot simultaneously do the same for similarly situated migrants from elsewhere.

I will try to use my contacts learn more about the proposed Ukrainian Adjustment Act, and will post on it further when and if I do.

From Judge Michael Baylson (E.D. Pa.), issued last week:

If any attorney for a party, or a pro se party, has used Artificial Intelligence ("AI") in the preparation of any complaint, answer, motion, brief, or other paper, filed with the Court, and assigned to Judge Michael M. Baylson, MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing, and CERTIFY, that each and every citation to the law or the record in the paper, has been verified as accurate.

Thanks to Jake Karr for the pointer. For more such orders, see here and here.

UPDATE: I had originally titled described the order as being "regarding AI-generated documents," but as some commenters have pointed out, it actually covers all use of AI; I've revised the title accordingly.

KRDO (Quinn Ritzdorf) reports the lawyer "thought he was filing a motion with cited cases that would favor his client's argument, only to find out many of the cases were made up by Artificial Intelligence software ChatGPT." The lawyer said that "it was the first motion to set aside a summary judgment he had ever researched, drafted, and filed by himself:

"I felt my lack of experience in legal research and writing, and consequently, my efficiency in this regard could be exponentially augmented to the benefit of my clients by expediting the time-intensive research portion of drafting," Crabill said in a court document….

At first, he asked ChatGPT about existing Colorado laws. He said the responses were accurate and he trusted the technology….

"Based on the accuracy of prior validated responses, and the apparent accuracy of the case law citations, it never even dawned on me that this technology could be deceptive," Crabill [the lawyer] said in court documents.

Thanks to Jake Karr for the pointer.

An important new study by Washington University (St. Louis) legal scholar Kyle Rozema finds that bar exam requirements massively reduce the number of lawyers. While some might cheer that result, the main effect is to increase the cost and reduce the availability of legal services. Lack of access to affordable legal representation is a serious problem in our legal system, particularly for the poor and lower middle class.

The ABA Journal has a helpful summary of several of Rozema's key findings:

If jurisdictions eliminate the bar exam as an entry to attorney licensure, the labor supply of lawyers would increase by 16%, according to new research by Kyle Rozema, an associate professor at the Washington University School of Law in St. Louis…..

Additionally, Rozema found that the labor supply of lawyers would increase by 8% if states adopt the most lenient bar exam policies and would decrease by 14% if the strictest policies are adopted….

Rozema also examined the time period between taking a bar exam, getting the results and being admitted to practice law. The average lawyer can get a law license five months after graduation, according to the working paper, which is posted on SSRN.

"Although this lag may seem like a temporary delay to recent law school graduates, the fact that it happens each year to subsequent cohorts means that changes to policies that eliminate the lag can increase labor supply by as much as 3%," Rozema wrote.

The 16% figure is an imperfect estimate, and Rozema notes a number of factors it doesn't consider. But even if the true reduction in the number of lawyers caused by bar exam requirements is "only," say, 10%, it's still a big effect.

Many people dislike lawyers and believe there are too many of them. If you hold that view, you might conclude that Rozema's findings are cause for celebration! Things could be even better if state governments made bar exams more onerous, thereby reducing the number of lawyers even more.

But restricting the number of lawyers makes their services more expensive, reducing competition in the legal profession. This makes it difficult or impossible for many lower-income people get access to legal services - a problem that has been long been highlighted by economists, legal scholars, and activists. It's a rare point of agreement between conservative Supreme Court Justice Neil Gorsuch and liberal Sonia Sotomayor. (though I am not a fan of her proposed solution to the problem).

The reduction in competition might be worth it if bar exams tested skills that practitioners must have in order to be effective lawyers. In reality, however, bar exams are largely a test of your ability to memorize thousands of arcane rules, the vast majority of which most practitioners don't actually use. As co-blogger Orin Kerr puts it, "when [the bar exam] is over you can forget everything you just learned." The reason you can do that is you are unlikely to ever use that knowledge again!

Essentially, bar exams screen out large numbers of people whose memorization skills aren't good enough to remember a vast number of rules. Yet many people with relatively weak memorization skills can still be competent lawyers - especially in an age where it is relatively easy to look up details in electronic databases.

The main beneficiaries of bar exams are not consumers of legal services, but already licensed lawyers. The exams reduce the amount of competition we face!

For this reason, I have long been an advocate of abolishing bar exams, even though it may not be in my self-interest to hold that view. More recently, such luminaries as Yale Law School Prof. Stephen Carter have joined the "ban the bar exam" bandwagon (I commented on his critique here). As I have pointed out in previous writings on this topic, abolishing the bar exam wouldn't deprive consumers of all indicators of a lawyer's competence (or lack thereof). The public could still rely on voluntary certification mechanisms, the lawyer's track record, referrals from previous clients, and other factors.

And state bar associations could still offer bar exams if they wanted to. If passage really is an indicator of quality useful to consumers, lawyers would have an incentive to take the exams and advertise the fact they passed them. Making the exam optional would incentivize bar associations to revamp them in ways that make them better measures of competence.

For the record, I also advocate abolishing the requirement (in force in most states) that lawyers must graduate from an ABA-accredited law school; though Rozema finds that that requirement actually has much less impact in reducing the number of lawyers than the bar exam does (I am not sure his conclusion there is correct). Let law schools compete in the voluntary certification market!

But if abolition is too radical an approach for you to swallow, I take this opportunity to once again tee up my "modest proposal" for bar exam reform:

Members of bar exam boards… and presidents and other high officials of state bar associations should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions…. And they should be barred from ever holding those positions again until… they take and pass the exam.

After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don't, how can they possibly be qualified for the offices they hold? Surely it's no excuse to say that they knew it back when they themselves took the test, but have since forgotten….

Of course, few if any bar exam officials or state bar leaders could pass the bar exam without extensive additional study…. That's because, as anyone who has taken a bar exam knows, they test knowledge of thousands of arcane legal rules that only a tiny minority of practicing lawyers ever use. This material isn't on the exam because you can't be a competent lawyer if you don't know it. It's there so as to make it more difficult to pass, thereby diminishing competition for current bar association members….

If bar exam board members and bar association leaders were required to take and pass the exam every year, they would have strong incentives to reduce the amount of petty trivia that is tested. After all, anything they include on the exam is something they themselves will have to memorize! As prominent practicing lawyers, however, they presumably are already familiar with those laws that are so basic that any attorney has to know them; by limiting the exam to those rules, they can minimize their own preparation time. In this way, the material tested on bar exams might be limited to the relatively narrow range of legal rules that the average practicing lawyer really does need to know.

Rozema's study strengthens the case for the "modest proposal" and for other, more conventional, approaches to reducing the amount of material tested on bar exams.

The article is here; here is the Introduction:

Almost all platforms for user-generated content have written policies around what content they are and are not willing to host, even if these policies are not always public. Even platforms explicitly designed to host adult content, such as OnlyFans, have community guidelines. Of course, different platforms' content policies can differ widely in multiple regards. Platforms differ on everything from what content they do and do not allow, to how vigorously they enforce their rules, to the mechanisms for enforcement itself. Nevertheless, nearly all platforms have two sets of content criteria: one set of rules setting a minimum floor for what content the platform is willing to host at all, and a more rigorous set of rules defining standards for advertising content. Many social-media platforms also have additional criteria for what content they will actively recommend to users that differ from their more general standards of what content they are willing to host at all.

These differences, which exist in both policy and enforcement, create vastly different user experiences of content moderation in practice. This chapter will review the content-moderation policies and enforcement practices of Meta's Facebook platform, YouTube (owned by Google), TikTok, Reddit, and Zoom, focusing on four key areas of platforms' content-moderation policies and practices: the content policies as they are written, the context in which platforms say those rules will be enforced, the mechanisms they use for enforcement, and how platforms communicate enforcement decisions to users in different scenarios.

Platforms usually outline their content-moderation policies in their community guidelines or standards. These guideline documents are broad and usually have rules about what kinds of actions users can take on their platform and what content can be posted. These guideline documents often also describe the context in which rules will be enforced. Many platforms also provide information about the enforcement actions they may take against content that violates the rules. However, details about the consequences for users who post such content are typically sparse.

From Tucson v. City of Seattle, decided Tuesday by Judge Marsha Pechman (W.D. Wash.):

On January 1, 2021, Plaintiffs wrote political messages, some of which were critical of the Seattle Police Department (SPD), in sidewalk chalk and charcoal on "eco-block" walls that were temporarily erected by the City outside of the SPD's East Precinct. Tucson wrote the words "peaceful protest" in charcoal, while the precise messages the other Plaintiffs wrote are not clearly identified.

Plaintiffs were arrested for violating a Seattle ordinance that at the time said,

[A.] A person is guilty of property destruction if he or she:

[1.] Intentionally damages the property of another; or

[2.] Writes, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person.

[B.] [1.] It is an affirmative defense to property destruction under subsection [A.1] that the actor reasonably believed that he had a lawful right to damage such property.

[2.] It is an affirmative defense to property destruction under subsection [A.2] that the actor had obtained express permission of the owner or operator of the building, structure, or property.

[C.] Property destruction is a gross misdemeanor. "Property destruction" … is punishable by imprisonment of up to 364 days and a fine of up to five thousand dollars.

6/15/1804: The 12th Amendment is ratified.

Earlier today, the House Judiciary Committee passed the FAIR Act on a 26-0 vote. We rarely see such unanimity in this era of partisan polarization! Reason's Jacob Sullum has a helpful summary of how this bill would reform the federal asset forfeiture system:

Two years ago, the FBI seized the contents of safe deposit boxes used by hundreds of people at U.S. Private Vaults, a Beverly Hills business that offered secure storage for cash and other valuables. One of those dismayed customers was Linda Martin, a Los Angeles resident whose box contained $40,200 that she and her husband had saved for a deposit on a new home.

Martin, whose money was seized without any evidence that she was involved in illegal activity, is still trying to get it back. Her predicament is emblematic of the injustice wrought by civil asset forfeiture, a system of legalized larceny that allows law enforcement agencies to pad their budgets by confiscating allegedly crime-tainted property without charging, let alone convicting, the owner.

A bill that has attracted bipartisan support in Congress aims to address that problem. The Fifth Amendment Integrity Restoration (FAIR) Act includes several substantial reforms that would make it harder for the federal government to take assets from innocent people like Martin.

The FAIR Act, which Reps. Tim Walberg (R‒Mich.) and Jamie Raskin (D‒Md.) reintroduced in March, would eliminate the perverse financial incentive that encourages agencies like the FBI to seize first and ask questions later (if ever). It would assign forfeiture proceeds to the general fund instead of letting the seizing agency keep the loot.

The bill also would eliminate the "equitable sharing" program that lets state and local agencies keep up to 80 percent of the revenue from forfeitures they initiate. By authorizing confiscation under federal law, that program invites money-hungry cops to circumvent state reforms that make forfeiture harder or less profitable….

To keep seized property under current federal law, the government needs to prove it is more likely than not that it was derived from or facilitated a crime. The FAIR Act raises that standard to "clear and convincing evidence," and it enhances protections for innocent owners: When another person uses someone's property to commit a crime, the government would have the burden of proving that the owner "knowingly consented or was willfully blind" to that unlawful use.

The FAIR Act would also abolish "administrative" forfeitures ordered by federal bureaucrats. Only federal judges would have the power to order the forfeiture of property.

Asset forfeiture abuse is a serious problem in both the federal law enforcement system and in many states. It often enables law enforcement agencies to seize citizens' property without convicting them of a crime or even charging them. Then, procedural barriers make it difficult or impossible for the owners to reclaim their assets, even if they are completely innocent. I go over these issues in more detail here.

The Supreme Court's 2019 ruling in Timbs v. United States, imposes some constitutional constraints on asset forfeiture. But it has a variety of limitations, and left several key issues for lower courts to resolve.

The "equitable sharing" program mentioned by Sullum allows state and local agencies to circumvent state-law limitations on asset forfeiture by working with the feds, and then sharing the loot. The system is an egregious attack on both federalism and property rights. It was curbed by Obama Administration Attorney General Eric Holder, but then reinstated by Trump's first AG, Jeff Sessions. Biden Attorney General Merrick Garland has - so far, at least - perpetuated Sessions' scheme to Make Asset Forfeiture Great Again.

For reasons Sullum notes, the FAIR Act would not completely put an end to unjust federal asset forfeiture. If it were up to me, I would go even further than Sullum recommends, and simply abolish asset forfeiture entirely - even for those convicted of crimes. There is no good reason to add property confiscation to ordinary criminal penalties, and also no reason to punish more harshly a criminal who used his own car to commit an illegal transaction as opposed to taking the subway or the bus. Law enforcement should be able to return stolen property, but not confiscate suspects' own property as a kind of extra punishment for their possible crimes.

Despite some limitations, the FAIR Act would be a major improvement over the current federal system. And the abolition of the equitable sharing program would bolster reform efforts at the state level, as well.

The overwhelming vote in the Judiciary Committee is a good sign. Libertarians, liberals, and many conservatives are united on this issue, which combines government abuse of property rights with violations of due process rights and disproportionate effects on the poor and racial minorities.

But it is too early to celebrate. Rep. Raskin, co-sponsor of this act (best known for being the lead impeachment manager on Donald Trump's second impeachment), is among those who have been here before. In 2017, he co-sponsored similar legislation (with libertarian Rep. Justin Amash, among others) that passed the House by a unanimous vote, only to have it die in the Senate. It's a rare issue that unites Amash, Raskin, the ACLU, the Institute for Justice and many others. Raskin deserves credit for sticking with this cause over many years.

But, despite this broad support, asset forfeiture reform remains politically difficult, because law enforcement agencies are loath to give up this source of income. In some years, federal law enforcement alone seizes more property through asset forfeiture than burglars around the country manage to steal. Hopefully, the Senate won't block asset forfeiture reform yet again.

Rep. Maria Elvira Salazar (R-Florida), co-sponsor of the Venezuelan Adjustment Act (office of Rep. Salazar).

Yesterday, a bipartisan group of members of the House of Representatives introduced the Venezuelan Adjustment Act, which would grant permanent residency rights to some 400,000 Venezuelans currently in the United States, who have fled their home country's brutal socialist dictatorship:

A bipartisan group of lawmakers has introduced the Venezuelan Adjustment Act to adjust the legal status for Venezuelan nationals. Florida Rep. Maria Elvira Salazar (R), who's promoted the Dignity Act, joins Democrats in looking to address pressing concerns regarding Venezuelan nationals. With Florida Reps. Darren Soto (D), Debbie Wasserman Schultz (D), and Frederica Wilson (D), Salazar has introduced H.R. 4048.

According to a press release from Salazar's office, the bill "would adjust the legal status for certain Venezuelan nationals to that of lawfully admitted permanent residence if they meet certain criteria, including entering the United States before or on December 31, 2021."

Moreover, it "would provide a path to lawful permanent residency status to many Venezuelan nationals who have been living in the United States for years and allow them to continue making significant contributions to their communities, the state of Florida, and the country…."

Mildred Rodriguez, the CEO of My Voice Counts, praised the effort, commenting that the bill "will allow more than 400,000 Venezuelans who are fleeing an oppressive regime where totalitarianism prevails to obtain Permanent Residence…."

As Rep. Salazar (herself the daughter of Cuban refugees from communism), put it in her statement introducing the act, "The oppression of the Maduro regime and the failure of socialism of the 21st century has led to the world's worst refugee crisis. As a result, thousands of Venezuelans…. face an uncertain immigration situation and cannot return to Venezuela. I am proud to co-lead the Venezuelan Adjustment Act to provide refuge for those who have endured incredible suffering, so they do not have to return home to face the wrath of the dictatorship."

The poverty and oppression created by Venezuela's socialist government has caused over 7 million refugees to flee. It isn't entirely clear whether this really is the world's biggest current refugee crisis. Russia's invasion of Ukraine has led to the flight of a similar number of people. But the Venezuelan situation is certainly the biggest refugee crisis in the history of the Western Hemisphere.

Rep. Salazar and the other sponsors deserve credit for introducing this bill, and Congress should pass it. If enacted, it will help Venezuelan migrants in the US continue to escape deportation back to oppression, as opposed to being subject to the whims of the White House, where current and future presidents may or may not continue to extend the Temporary Protected Status (TPS) most of them currently enjoy. Granting permanent residency will also benefit American society as a whole, by enabling migrants to integrate into society more fully, and increase their contributions to the economy. I covered these and other advantages of passing adjustment acts in greater detail in an April article in the Boston Globe (non-paywall version here).

Rep. Salazar stands out relative to some other GOP politicians who simultaneously condemn socialism and try to keep Venezuelans and others fleeing it from entering the US. The rest of the party would do well to follow her example, though I fear many won't.

There is, however, one obvious flaw in the current version of the Venezuelan Adjustment Act. With a few exceptions, it only applies to Venezuelans who entered the United States on or before Dec. 31, 2021. That leaves out many thousands who have arrived since then, including a large number admitted under the Biden Administration's expansion of the Uniting for Ukraine private sponsorship model to cover migrants from four Latin American nations, including Venezuela. It is obvious that Venezuelans who arrived after Dec. 31, 2021 are no less worthy of refuge than those who came before that date. I hope the sponsors will drop this arbitrary date limitation.

Some might wonder whether it is unfair to grant permanent residency to Venezuelans, but not migrants fleeing comparable violence and oppression elsewhere. Why Venezuelans, but not Cubans, Ukrainians, and others? It's a reasonable question. The answer is the same one I have given on several previous occasions (e.g. here and here).

Ideally, we should indeed extend residency rights to all similarly situated migrants fleeing poverty, war, and oppression. I have long advocated adjustment acts for Afghans, Cubans, Ukrainians, Russians fleeing Putin's regime, and other migrants in similar situations.. But the best should not be the enemy of the good. We should not forego an opportunity to help some refugees from oppression unless and until we can simultaneously help all.

To the extent there is inconsistency and unfairness, the right way to address it is "leveling up," not leveling down. Moreover, a successful Venezuelan Adjustment Act can potentially serve as a model for similar legislation applying to other groups. The US actually has a long history of passing adjustment acts granting permanent residency to other refugees from socialism. This legislation can help reinvigorate that tradition, after an unfortunate hiatus in recent years.

UPDATE: It's worth noting that there is already an Afghan Adjustment Act before Congress, albeit it hasn't passed, despite significant bipartisan support (including from Rep. Salazar, who is one of its sponsors). On June 8, a different bipartisan group of representatives introduced a Ukrainian Adjustment Act, which I will say more about in a future post.

Particular useful for academic articles, but also for whenever one seeks to persuade a skeptical audience that is looking for reasoned argument.

From Cooper-Keel v. State, decided today by Magistrate Judge Sally Berens (W.D. Mich.):

Defendant Kengis is currently the Chief Judge of the Allegan County Circuit Court. Defendant Kengis presided over Cooper-Keel's previous divorce case. During that proceeding, Cooper-Keel moved to disqualify Defendant Kengis from deciding the case, but Kengis denied the motion. That ruling was subsequently affirmed by the Michigan Court of Appeals.

Cooper-Keel alleges that on September 7, 2021, he made the following comment on the Circuit Court's Facebook page referring to Kengis, "Is he going to help rig some more circuit court trials in that crooked ass sh*thole of a circuit court? https://www. google.com/amp/s/amp.hollandsentinel.com/amp/114417676." The article Cooper-Keel referenced in his comments reported on a criminal case in which the defendant was granted a new trial after it was discovered that then-Chief Judge Margaret Bakker had sent the prosecutor emails regarding the case during the trial. Cooper-Keel further alleges that on February 22, 2022, after Defendant Kengis became Chief Judge, the Circuit Court posted an announcement on its Facebook page introducing the recently-hired director of the Friend of the Court. Cooper-Keel made a comment in response to the post similar to the comment he had made on September 7, 2021. Later in the day, the comments were hidden, and the post no longer indicated that comments had been made. In contrast, Cooper-Keel alleges, his September 21, 2021 comment was never deleted, hidden, or censored in any way.

The Circuit Court's official Facebook page was created on December 18, 2018 …. The intended purpose of the Facebook page was to inform the public about court events and news, not to interact or debate matters with the public…. However, users or followers had the ability to interact with posts, which continued from December 2018 through October 2021. Mr. Dulac [the Page Administrator and court employee] thus was required to review each individual post on the Circuit Court's Facebook page for user comments.

When Defendant Kengis became Chief Judge in January 2022, he learned that Mr. Dulac was devoting time to manually reviewing each individual post on the Circuit Court's Facebook page, which took substantial time away from his other job duties.

So the Detroit News (Shawntay Lewis & Mark Hicks) reported yesterday:

City officials said the resolution was not rooted in division.

"It basically is council's attempt to keep the city's flag poles neutral," City Manager Max Garbarino said Tuesday.

"Last year there was a pride flag up there, and there was a dust-up in the community in regard to that. There was a lot of the community that was for it. There was a lot of the community that was against it.

"The thought process, I believe, is that it potentially could go up here again this summer. And this is basically a resolution specifically just saying these are the only flags we want in an attempt to stay neutral on the topic." …

[Garbarino] added he has "received some verbal requests from people representing some religious groups, and I expect more requests if we allow the flag of one group to be flown."

In 2022, Hamtramck seated its first all-Muslim city council and mayor. The council raised eyebrows in January when it approved updates to the city's ordinance outlining how residents can perform religious slaughters privately.

Here is the resolution:

From Monday's decision in Webber v. Armslist LLC, decided by the Seventh Circuit in an opinion by Judge Michael Brennan, joined by Judges Joel Flaum and Michael Scudder:

Erin Bauer and Richard Webber are the legal representatives and family members of two individuals killed using guns that had been listed on armslist.com, an online firearms marketplace. Bauer and Webber each sued Armslist LLC …, alleging negligence and other Wisconsin state law claims. The plaintiffs assert that the defendants designed the website to encourage and assist individuals in circumventing federal and state law regulating firearms. The defendants argue that the plaintiffs have failed to state a claim upon which relief can be granted because publishing third-party offers to sell firearms does not establish tort or other liability under Wisconsin law.

Because we affirm on the state law claims, we decline to rule on the [§ 230] preemption issue….

Armslist.com is an online marketplace for firearms…. Armslist LLC is not engaged in the business of selling firearms. Rather, its website hosts "for sale" and "want to buy" ads posted by users….

The plaintiffs level serious accusations against the defendants. They allege that armslist.com allows individuals to engage in the business of selling firearms without a license and to circumvent federal and state law governing firearms dealers, including avoiding background checks. The defendants purportedly accomplished this through design and content features. Among these are choosing to label purchases and sales as private party transactions by default. The plaintiffs also claim that armslist.com allows users to filter listings to identify private party sellers. This "filter function" allegedly facilitates the private sale of firearms without background checks to individuals prohibited from possessing firearms.

The plaintiffs also contend the defendants provided certain assurances that enabled both buyers and sellers to operate anonymously, including that:

The article is here; here is the Introduction:

A central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas—that the solution to bad speech is more, better, speech. This basic idea is well-established in both judicial and scholarly writing—but it is not without its critics. My contribution to this volume adds a new criticism of the marketplace-of-ideas metaphor. I argue that there are circumstances where ostensibly "good" speech may be indistinguishable by listeners from bad speech—indeed, that there are cases in which any incremental speech can actually make other good speech indistinguishable from bad speech. In such cases, seemingly "good" speech has the effect of "bad" speech. I call this process by which ostensibly good speech turns the effects of other speech bad "a noisy speech externality."

This thesis has important implications. First, it offers a poignant critique of the marketplace-of-ideas aphorism introduced by Justice Holmes in his Abrams dissent. If the marketplace of ideas is subject to significant market failure, correctives may be justified. Market failures, after all, are a standard justification for regulatory intervention. But, second, my contribution goes a step farther, suggesting not only that there are circumstances in which good speech may fail as a corrective to bad speech but also that there are circumstances in which the addition of seemingly good speech may only yield more bad speech. In such cases, the only solution to bad speech may be less speech—encouraging more speech may actually be detrimental to our speech values. If that is the case, then correctives may be not only justified but needed to satisfy an important societal interest. And, third, this chapter presents solutions for content-neutral ways in which to implement such correctives.

From the just-filed amicus brief in Estate of Herndon v. Netflix, Inc. (9th Cir.), prepared by my UCLA School of Law students Aaron Boudaie, Eimile Nolan, and Simon Ruhland and by me, on behalf of the Foundation for Individual Rights and Expression (FIRE), PEN American Center, Inc. (PEN America), the National Coalition Against Censorship (NCAC), and the Student Press Law Center (SPLC):

Summary of Argument

Suicide is an enduring, though tragic, facet of human existence. Many great works of literature, history, and religion depict it, and those works are routinely taught to teenagers. For just some of the most famous literary examples, consider Shakespeare's Romeo and Juliet, Othello, and Julius Caesar, as well as the novels Anna Karenina, Madame Bovary, Les Miserables, The Catcher in the Rye, and The Great Gatsby. In political, scientific, and artistic history, consider any biography or history describing Cleopatra, Mark Antony, Hannibal, Vincent van Gogh, Alan Turing, Ernest Hemingway, Marilyn Monroe, or Kurt Cobain. In mythology, consider the myths of Hercules and of Aegeas, the father of Theseus; in the Bible, Samson and Saul. And these are just the possibly sympathetic figures: For others, see the Bible's account of Judas, or any book noting the deaths of Hitler, Himmler, Goering, or Goebbels.

Yet all the books, plays, and films that include such suicides are of course fully protected by the First Amendment, whether or not they include minors among their audience, and however they may be sold or marketed. None of them, from Shakespeare to the Bible, has to be distributed with a warning label. Publishers and distributors are free to promote them based in part on what they can infer about their target audience. And there is no First Amendment exception or California anti-SLAPP law exception for 13 Reasons Why.

Argument

I. Works discussing suicide, including 13 Reasons Why, are generally protected by the First Amendment and by the California anti-SLAPP statute

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