The Volokh Conspiracy Archive

From S. Fla. Muslim Fed., Inc. v. Atrium Trs I, LP, decided Jan. 27 by Judge Raag Singhal (S.D. Fla.), but only recently posted on Westlaw; an appeal is pending:

Plaintiff, South Florida Muslim Federation, Inc. ("SFMF") describes itself as "an umbrella organization representing over thirty South Florida entities serving religious and secular Muslims, including Islamic centers, schools, and other similar community organizations, and over 200,000 Muslims in South Florida." It operates "a resource-sharing hub" that connects the South Florida Muslim community with "both religious and secular businesses, goods and services." SFMF sponsors an annual conference for the South Florida Muslim community and presents matters of religious, social, and political interest as well as a bazaar of community owned businesses.

"The vast majority of SFMF's membership identify as and are perceived as being of Middle Eastern, North African, and South Asian ('MENASA') ethnic descent and having a shared ancestry associated with majority-Islamic countries in Africa and Asia." "The overwhelming majority of SFMF's executive leadership, including its President… are of MENASA ethnic descent."

SFMF was scheduled to hold its second annual conference at the Coral Springs Hotel & Convention Center (the "Hotel") on January 12, 2024. It had signed a Group Sales Agreement (the "Contract') with Atrium TRS I, LP ("Atrium"), the franchisee and operator of the Hotel. The Hotel cancelled the contract at the last minute, citing "significant undesirable interest."

The undesirable interest arose from a "public pressure campaign" allegedly conducted by Defendants Middle East Forum [and others]. The public pressure campaign began "soon after" October 7, 2023, which the Court notes is the date of the attacks in southern Israel by Hamas and other militant groups.

SFMF accuses Defendants of meeting with the Hotel's general manager, publishing negative articles, promoting an email campaign to the public, and threatening boycotts of the Hotel if the conference were to take place as scheduled. A week before the conference was scheduled to start, the Hotel cancelled the conference citing "significant undesirable interest." After the Hotel cancelled the conference, the non-Hotel Defendants variously claimed credit for causing the cancellation.

The court rejected plaintiffs' claims for violations of the Civil Rights Act of 1964, which provides for injunctions against racial and religious discrimination in certain places of public accommodations, but "does not authorize a cause of action for damages":

4/15/1931: Stromberg v. California argued.

It just started a couple of days ago; our tech people are looking into it, and I hope it will be fixed soon.

An excerpt from D.C. Circuit Judge Cornelia Pillard, joined by Judges Karen LeCraft Henderson and J. Michelle Childs in today's Khalid v. TSA:

Saad bin Khalid, a United States citizen, is on the No Fly List. As a result, he is barred from boarding any planes that fly in U.S. airspace. Believing that placement to be in error, Khalid sought redress through an administrative appeal process run by the Transportation Security Administration (TSA). The TSA Administrator, after reviewing Khalid's submissions and the nonpublic recommendations of the government's Threat Screening Center, determined by order that Khalid should remain on the list.

Khalid now petitions for review of the TSA Administrator's order. He raises statutory and constitutional challenges to his placement on the No Fly List and the adequacy of the redress process. We dismiss one of Khalid's challenges for lack of standing and deny the rest on their merits….

Congress has charged the Transportation Security Administration to "use information from government agencies to identify individuals on [airline] passenger lists who may be a threat to civil aviation or national security" and, if appropriate, require air carriers to "prevent [such] individual[s] from boarding an aircraft." In addition, Congress instructed TSA to "establish a procedure to enable airline passengers" who are "prohibited from boarding a flight" because "they might pose a security threat" to "appeal [that threat] determination."

Some short excerpts from the 35K words of opinions in the very long In re Trump, decided today by the D.C. Circuit; first, the majority by Judge Neomi Rao, joined by Justin Walker:

More than a year ago, the President invoked the Alien Enemies Act against members of Tren de Aragua, a Venezuelan criminal gang and foreign terrorist organization, and ordered that they be detained and removed from the United States. In a series of fast-moving events on March 15, 2025, the government placed a group of alleged gang members, including plaintiffs in this case, on planes to El Salvador. After the planes took off and left the country, the district court ordered the government not to remove the plaintiffs from the United States.

The Supreme Court vacated the district court's order because it was premised on a legal error and the plaintiffs' suit was brought in the wrong court. Nonetheless, the district court threatened to hold government officials in criminal contempt unless they complied with the now-vacated order by, for instance, taking back custody of the plaintiffs. We issued a writ of mandamus vacating the court's first contempt order.

Undeterred, the district court is proceeding with criminal contempt for the government's decision to transfer the plaintiffs to the custody of El Salvador. To cooperate, the government identified then-Secretary of Homeland Security Kristi Noem as the official responsible for the transfer decision. The district court previously said this was the only information it required to make a referral for prosecution. But the district court has now expanded its inquest and ordered hearings to extract more information from government counsel about exactly what happened last March. The government petitions for mandamus.

The widening gyre of the district court's investigation again calls for the extraordinary remedy of mandamus to halt the judicial "impairment of another branch in the performance of its constitutional duties." The district court proposes to probe high-level Executive Branch deliberations about matters of national security and diplomacy. These proceedings are a clear abuse of discretion, as the district court's order said nothing about transferring custody of the plaintiffs and therefore lacks the clarity to support criminal contempt based on the transfer of custody. Moreover, the government has already provided the name of the responsible official, so further judicial investigation is unnecessary and therefore improper. In these circumstances, mandamus is appropriate to prevent the district court from assuming an antagonistic jurisdiction that encroaches on the autonomy of the Executive Branch….

From Judge Walker's concurrence:

From the N.Y. Workers' Compensation Board in Buffalo Municipal Housing Authority, decided last week (opinion by Board Members Steven A. Crain, Renee L. Delgado, and Mark D. Higgins):

The claimant filed a C-3 (Employee Claim) on January 8, 2025, setting forth that she suffered an exacerbation of severe mental illness due to exposure of a racially insensitive wooden item in another staffer's office on January 25, 2023….

At a hearing on March 7, 2025, the claimant testified that she was employed as a property manager on January 25, 2023 and was out of work at the time because in July 2021 there was a shooting at one of the units where a 3-year-old child was killed and she felt responsible for the death.

She stated that on January 25, 2023 she came to work and was sitting in the office, and she was told that a Mammy doll which depicts slavery was in the garage of the building where they worked. She indicated that the Mammy doll was not removed from the garage and she asked to go see it in the garage so she could remove it.

She stated that when she saw the doll she was overcome with emotions because it was so humiliating. She stated that she could not control her emotions and could not think clearly. She stated that the garage was the entryway to the building and was usually open and is often used as an entranceway from where an employee parks and comes into the building.

On cross-examination, the claimant testified that her office was not located in the garage which was used for storage and lockers for the maintenance people. She stated that her job was to inspect apartment units and serve as a liaison between the tenants and her employer. On redirect, the claimant testified that the Mammy doll at work indicated that her employer allows discrimination and hatred….

At the hearing on March 7, 2025, Tamara Van Wey, director of management, testified that she was told that the claimant saw a Mammy doll on January 25, 2023 in the garage and that it was leaning on the window of the garage. She stated that she did not see the Mammy doll herself so she does not know if there was other nicknacks on the windows of the garage….

The administrative law judge had "found that the claimant sustained an exacerbation of adjustment disorder and depression due to a work-related incident," but the Board disagreed:

The officials alleged that he had "sent repeated harassing and threatening emails" to them, and the trial court issued a stalking no contact order, apparently in part because of that. But the "no naming" order covered all speech about the officials (to the public and to third parties), not just threatening speech. And the officials' concerns were apparently in part about the man's "unsupported and outlandish allegations," and his "smearing the name[s]" of the officials, not just about threats.

An excerpt from the long Skertich v. Luffman, decided last week by the Illinois Appellate Court (Justice Michael McHaney, joined by Justices Mark Boie and Mark Clarke):

Mark B. Skertich (Petitioner) … filed a verified petition for stalking no contact order (petition), against the Respondent on behalf of Petitioner and two other protected parties: Laura Bauer and Brad Hyre…. In an attachment to the petition, Petitioner alleged that Respondent had "engaged in escalating and repeated harassing communication and videos towards" Petitioner, Bauer, and Hyre, all of whom were employees of Collinsville CUSD No. 10 (school district), with Petitioner serving as Superintendent, Bauer serving as Principal, and Hyre serving as Assistant Superintendent….

The attachment alleged that Respondent's behavior "caus[ed] extreme concern for [the] safety" of the protected parties and caused "emotional distress." The attachment alleged that on December 16, 2024, Respondent was barred from school district property "for aggressive, intimidating and harassing behavior towards" the protected parties. The attachment specified "aggressive and harassing language" found in "at least 75 emails" sent by Respondent to the protected parties, and detailed the language allegedly used by Respondent in a phone call with Bauer.

The attachment alleged Respondent had "sent repeated harassing and threatening emails totaling 1465 email exchanges on 262 threads to" the protected parties. The attachment further alleged Respondent had (1) sent "repeated emails to multiple federal and state agencies filing complaints with unsupported and outlandish allegations;" (2) sent multiple "emails with harassing allegations" to school district legal counsel, "smearing the name[s]" of the protected parties "and causing significant distress;" and (3) sent copies of the emails to media outlets, elected officials, and others…. The attachment alleged Respondent had received two citations from Collinsville police, one "for online harassment through electronic communications," and one for trespassing on school district property after Respondent was barred from being present on that property.

From Doe v. Univ. of S. Ind., decided yesterday by Judge David Hamilton, joined by Chief Judge Michael Brennan and Judge Amy St. Eve:

Plaintiff-appellant "John Doe" was a student at the University of Southern Indiana (USI) in the 2020–21 academic year. He was the subject of a Title IX complaint accusing him of sexually assaulting another student. A hearing panel heard testimony from John, from the complaining student (we call her "Jane Doe"), and several other witnesses. The panel wrote that the issue was "whose version of events is more credible, as the details of each are irreconcilable." The panel found that Jane's account was more credible—in part because, in the panel's view, her account had been "consistent over time" while John's account had changed. The panel found by a preponderance of the evidence that John had committed "Rape and Forcible Fondling." John was suspended from the university for three semesters in 2021. He has not returned since and has no intention of returning in the future.

After the hearing panel's decision, John quickly filed this lawsuit, which defendants removed to federal court. He has alleged that USI discriminated against males, including him, in violation of Title IX; that USI and other defendants deprived him of protected liberty and property interests without due process; and that defendants intentionally inflicted emotional distress on him through outrageous conduct. The district court denied John's request for a preliminary injunction, and this court affirmed.

John then learned through discovery that Title IX officials at USI created memoranda of early conversations with John and Jane. Those memoranda showed at least arguably (1) that John's account actually was consistent over time and (2) that Jane's account was not consistent over time. USI had not disclosed those records to John or to any Title IX decisionmakers, thus calling into question the foundation for the hearing panel's decision on the merits. In Title IX cases, however, federal courts do not conduct any direct appellate review of such decisions by educational institutions. The district court ultimately granted summary judgment for defendants on all of plaintiff's claims….

Before we issue any decision on the jurisdictional or merits issues, we must confront the logically prior procedural issue: whether plaintiff may proceed under the John Doe pseudonym or whether he must instead proceed in this court using his real name….

In October, I wrote a column in Civitas Outlook about how President Trump was refighting the wars that the Watergate Congress waged against President Nixon. That piece concerned the spending power. In a follow-up column, I write about a recent opinion from the Office of Legal Counsel concerning the Presidential Records Act. Here too, Trump continues that fight.

In our current chaotic legal order, it is easy to get lost amid short-term controversies that will likely not endure beyond the present moment. Other far more enduring issues, however, often fly below the radar and garner little interest. Specifically, tensions between the legislative and executive departments persist regardless of which political party is in power. In modern American history, the greatest realignment of powers occurred in the wake of Watergate. Congress responded to President Nixon's actions by imposing greater oversight over the executive branch and the political process more generally. Presidents Gerald Ford and Jimmy Carter acquiesced to these restrictions. And the Burger Court, stacked with four Nixon appointees, upheld these expansions of legislative authority. In a Civitas Outlook essay from October, I explored how President Trump was refighting the "war" that Congress and the Burger Court "waged" against President Nixon in the context of presidential spending. The latest front in this war centers on presidential records.

Most law students learn that the Supreme Court ordered President Nixon to turn over his secret Oval Office recordings to the Watergate Special Prosecutor. United States v. Nixon (1974) directly led to the president's resignation two weeks later. But far fewer students study the fights over the recordings after Nixon resigned. Congress asserted control over all of Nixon's records and those of all future Presidents. However, a recent opinion from the Office of Legal Counsel argues that these five-decade-old laws were unconstitutional. Going forward, Trump will assert his own authority over his own papers, notwithstanding how the Watergate Congress tried to hamstring Nixon.

From the conclusion:

This opinion, by itself, has no immediate legal effect. Again, the PRA only has a meaningful effect after a President leaves office. (Unsurprisingly, there is already litigation afoot to try to halt this policy.) But the upshot of this opinion is that President Trump and his administration will not feel compelled to comply with the PRA. He will keep whichever documents he preserves, perhaps to be maintained at the future skyscraper Presidential Library in downtown Miami. It will turn to a future administration to decide whether to launch a Jack Smith redux and prosecute a predecessor President. The better course would be for future administrations to agree that PRA is unconstitutional and let these matters go. OLC's opinion will frustrate, rather than extend, the dangerous cycle of presidential lawfare.

I just came across this recent statute, Cal. Gov. Code § 6218 et seq.:

(b) (1) A person … shall not publicly post … the personal information [including just the name, see below] or image of a designated health care services provider, employee, volunteer, or patient if that individual … has made a written demand of that person … to not disclose the personal information or image. A written demand made under this paragraph shall include a statement declaring that the individual is subject to the protection of this section and describing a reasonable fear for the safety of that individual or of any person residing at the individual's home address, based on a violation of subdivision (a).

(2) A designated health care services provider, employee, volunteer, or patient whose personal information or image is made public as a result of a failure to honor a demand made pursuant to paragraph (1), or any individual, entity, or organization authorized to act on their behalf, may bring an action seeking injunctive or declarative relief in any court of competent jurisdiction. If a jury or court finds that a violation has occurred, it may grant injunctive or declarative relief and shall award the successful plaintiff court costs and reasonable attorney's fees.

(3) This subdivision [b] does not apply to a person or entity defined in Section 1070 of the Evidence Code [a publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed]….

Subdivision (a), referenced above, provides:

From Lupton v. Kardash, decided Thursday by the Hawaii Intermediate Court of Appeals (Judges Keith K. Hiraoka, Clyde J. Wadsworth, and Kimberly T. Guidry):

Following a bench trial, the District Court enjoined Kardash from, among other things, contacting, threatening, or harassing his neighbor [Lupton] … for a period of three years…. The uncontested FOFs [Findings of Fact] … stated:

[25.] [Lupton] testified that after [Kardash] moved in [Kardash] installed security floodlights which were directly aimed into [Lupton]'s residence and were continually kept on during hours of darkness ….

[26.] [Lupton] testified that the effect of the security floodlights from [Kardash]'s home caused [Lupton]'s bedroom to be lit up which makes it extremely difficult for [Lupton] to sleep at night …. [Lupton] testified that she asked [Kardash] at the outset if he could direct his security floodlights so that it was not pointed directly into her home and [Kardash] replied that [Lupton] should "buy some black out curtains." ….

[32.] [Lupton] testified that [Kardash]'s extremely loud piano playing would sometimes last for 3 to 4 hours and would occur at all times of the day and night to include 7:00 am in the mornings on holidays and as late at night as 10:30 and 11:00 pm.

[33.] [Lupton] testified that she worked at home remotely during the pandemic and that her work required the constant and consistent use of her telephone. Callers commented that they could not hear [Lupton] clearly over the telephone because of [Kardash]'s piano playing in the background and consequently, [Lupton] was called back to work at the office and could not work remotely.

4/14/1873: The Slaughter-House Cases argued.

On April 27th, the Supreme Court will hear oral argument in Chatrie v. United States, on the Fourth Amendment implications of geofencing. I have already posted the amicus brief I wrote for the Court in the case, and I have decided to write a series of posts in anticipation of the argument. This is the first.

For my first post, I want to suggest that Chatrie may end up being decided on relatively narrow grounds. That's relevant because the Chatrie case implicates a very wide range of potential issues. The Court granted cert on the first of Chatrie's proposed Questions Presented, which was "[w]hether the execution of the geofence warrant violated the Fourth Amendment." But because the opinion following the en banc proceedings below was just a one line affirmance—as I detailed last year, no particular reasoning commanded a majority of the Fourth Circuit judges—what that might mean is, at least in theory, very open.

Broadly speaking, there are two sets of questions in the case. First, was the obtaining of records from Google a Fourth Amendment "search" of the suspect's "persons, houses, papers, [or] effects" that presumably triggered a warrant requirement? And second, if so, was the warrant constitutional? Each of those two questions breaks down into a lot of different sub issues. This means that a lot of really important conceptual issues in Fourth Amendment law are potentially in play.

It wouldn't surprise me, though, if a majority of the Court bypasses a lot of those issues. I would guess it likely—and it wouldn't be a terrible idea—for the Court to rule narrowly on the warrant issue. If so, the majority would leave the search issue for another day. I thought I would say a bit about why I think that might happen.

First, this case gets to the Court very late in the Term. Oral argument is April 27th, the last week of argument. That's going to create intense pressure to identify a majority position quickly. It's been a long while since I was a law clerk, and the dates I vaguely recall for when majority opinions need to be circulated for the end of the Term may be wrong (or the current Chief may not follow the earlier guidelines). But whoever has the pen for the expected majority opinion is going to have to work super quickly. If you figure opinions are generally handed down by the end of June, that means there is only about 60 days until everything is out. And that means the Justices will need to agree on a rationale and get at least a majority on board very rapidly. Read More

[I wrote earlier today about the TRO motion that requested the order; but I wanted to repost some of that, with modifications as needed, now that the order had been issued.]

In her temporary restraining order application in Doe v. OpenAI (see also the complaint), plaintiff asked that OpenAI cut off ChatGPT access by a user:

Plaintiff Jane Doe is in immediate danger. Driven by a ChatGPT-fueled delusional spiral, her ex-boyfriend (the "User") stalked and harassed her for months—generating dozens of fake psychological reports about her via ChatGPT and distributing them to her family, friends, and colleagues, which escalated to leaving her voicemails threatening her physical safety.

His campaign culminated in encoding a death threat through ChatGPT and sending it to her family, just before he was arrested on four felony counts, including communicating a bomb threat and assault with a deadly weapon in January 2026. The criminal court deemed him incompetent and ordered him committed to a mental health facility, but—just two days ago—ordered his release due to a procedural failure by the state (a delay in transferring him from jail to the facility)….

Before he was arrested, the User was in constant communication with ChatGPT, which affirmed his delusions that he had cured sleep apnea, that the medical industry was out to get him, and that his ex-girlfriend was the problem. As he became more unhinged, it also began consulting on violent plans against third parties: in addition to helping him harass and threaten Plaintiff, his account contains conversations titled "Violence list expansion" and "Fetal suffocation calculation." [My read of the exhibits to the TRO application suggests that "fetal suffocation calculation" likely refers to the user's theories that maternal sleep apnea causes fetal asphyxiation, not to plans by the user to violently suffocate fetuses, though I appreciate that is guesswork on my part. -EV]

With the User now ordered to be freed for procedural reasons, he will be further emboldened in his belief that his worldview was exactly right. It is a certainty that he will immediately attempt to turn back to ChatGPT—again spinning out his delusions and planning violence on the platform….

The Volokh Conspiracy

Lawsuit by Muslim Group, Over Alleged Public Pressure Campaign That Caused Cancellation of Conference, Dismissed

Today in Supreme Court History: April 15, 1931

Open Thread

Open Thread

Sorry About the Doubled Daily Open Thread Glitch

D.C. Circuit Opinion About the No Fly List

D.C. Circuit (2-1): Contempt Proceedings Regarding Tren de Aragua Deportations "Are a Clear Abuse of Discretion"

Workers' Comp Claim for "Exacerbation of Severe Mental Illness Due to Exposure of a Racially Insensitive Wooden Item"

Court Upholds Order Barring Man from Naming Three School Officials in Social Media Posts

Seventh Circuit Reaffirms: No Pseudonymity in Title IX Suits Claiming Wrongful Discipline

New in Civitas Outlook: Trump Refights the "War" That Congress and the Burger Court "Waged" Against President Nixon's Tapes

California Law Restricts Naming Abortion/Gender-Affirming Care Providers/Patients (+ Soon Immigration Support Services Providers?) …

Enough with the Piano!

Today in Supreme Court History: April 14, 1873

A Narrow Resolution on Geofence Warrants?: A Thought on Chatrie

Open Thread

Open Thread

Court Orders OpenAI to Cut off (for 3 Weeks) ChatGPT Access by Mentally Ill and Dangerous User

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

For America's 250th, Get 2 Years of Reason for $17.76