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Friday evening, shortly before I signed off, I was able to dash out a very short post on my phone about the Missouri redistricting case. Over the past 25 hours, without the distraction of any screens, I've had some more time to reflect on the ruling. Here are some more thoughts.

First, I found the Court's discussion of standing in a footnote to be completely unsatisfactory.

We conclude that at least one of the applicants has standing on appeal.

There were two applicants. (1) People not Politicians and (2) Richard Von Glahn. The number of applicants with standing can be as low as one and as high as two. This isn't a guessing game. What does it mean that "at least one of the applicants has standing." Why doesn't the Court just tell us which of the two applicants have standing? Judge Stras's concurrence in the Eighth Circuit offered a compelling argument why neither party has standing. The Supreme Court can't just assume that one of the parties has standing, without telling us which one.

What happened here? I can think of a few possibilities. Perhaps the Court's conservatives did not agree on which of the two applicants had standing, so they dodged the issue. Or, the majority didn't really care whether any party had standing, so they used this conjectural language. I lean towards the latter. I think the upshot of Purcell is that when electoral chaos is on the horizon, jurisdiction no longer matters.

Second, the discussion of the merits is also unsatisfying.

On the merits, the Court's precedents have not previously stated that Article I, Section 2 requires a state to use the primary election map in a general election, and given that the equities heavily favor staying this late-breaking intervention, it suffices that the merits are not entirely clearcut.

The Applicants are entitled to relief if they can make a clear showing that they are likely to succeed on the merits. Justice Jackson has made this point more times than I can count. But by the majority's own admission, the applicant don't even come remotely close to satisfying that burden. Instead, the upshot of Purcell is that when when electoral chaos is on the horizon, the merits no longer matters.

Third, the Court faults the Eighth Circuit for failing to understand the previous one sentence ruling:

Given this Court's two prior orders in this litigation, our conclusion that this was error should come as no surprise.2 Consistent with this Court's September 10 stay order, we therefore must now stay the District Court's new September 21 and September 22 injunctions3 and the Eighth Circuit's September 21 mandate and September 22 order.4

I have written how some lower court judges have been deliberately obtuse while parsing emergency docket rulings. But here, I have some sympathy for the Eighth Circuit. Judge Stras offered some remarks at a pre-scheduled event at William & Mary:

"They release these short orders that are sometimes really unclear to the circuit courts," said Judge David Stras, an appointee of President Donald Trump who sits on the US Court of Appeals for the Eighth Circuit. Stras spoke Saturday during an event hosted by William & Mary Law School in Williamsburg, Va.

Stras defended the court, saying that they're often in a hard position. Depending on the case, he said, there are good reasons for writing more or writing less.

"I don't know where the happy medium is," he said.

He said it would've been "incredibly helpful" in the Missouri case for the justices to explain what, if anything, was left for the lower courts to decide after the Supreme Court stayed an order directing the state to use a redrawn map favoring the GOP earlier this month.

"It would have been better to have a little bit more, in terms of tell us what to do," Stras said. "What's off limits and what can we look at?"

My understanding of the prior rulings was that the Supreme Court rejected the federal rulings based on the AISG doctrine. The Amars and other praised Justice Kavanaugh for promoting a due respect for federalism. But now the Court tells us that the September 25 order is "consistent" with the earlier orders. Therefore, the earlier rulings were not about AISG at all. Perhaps the praise of Justice Kavanaugh was premature? Rather, the rulings were all about Purcell. Here, the upshot of Purcell is that when electoral chaos is on the horizon, the equities are the only valid basis for an emergency docket ruling.

Fourth, the Court took some gratuitous shots at the Missouri Secretary of State:

Moreover, in this case, the Missouri SupremeCourt was not responsible for the late-breaking changes. On the contrary, in an opinion back in May 2026, well before the primary election, the Missouri Supreme Court stated that the 2025 map would not take effect until approved by the voters in an intervening referendum, at least if the referendum petition was legally sufficient. So in the several-month period before the August primary election, the Missouri Secretary of State was well aware that conducting the August primary election with the 2025 map carried significant risks. The Secretary nonetheless chose to proceed with the 2025 map for the primary.

I don't have time to go into all the details, but let's just say this accounting of the facts is disputed by Missouri. But the Court simply accepted one side's statement of the facts. Again, the upshot of Purcell is that when electoral chaos is on the horizon, the Supreme Court will settle disputed facts on the emergency docket.

Indeed, the Court showed disrespect for a sovereign state by giving only 14 hours to submit a reply, and then taking two whole days to prepare a five-page opinion. There was a lower-court stay in place so there was no need to make Missouri pull yet another all-nighter--especially since it was clear that relief was already going to be denied. I think the Justices were annoyed here, and just didn't care.

This ruling is unsatisfying in so many regards.

The post A Few More Thoughts On The Missouri Ruling appeared first on Reason Magazine.

In the Fall 2026 issue of Regulation, Ben Zycher argues that my critique of the Environmental Protection Agency's decision to rescind the "endangerment finding" which triggered the regulation of greenhouse gas emissions from new motor vehicles under the Clean Air Act is "deeply problematic." I appreciate that Zycher took the time to respond to my essay, but I think his analysis misses the mark.

I hope to have a full response to Zycher in due course. For the moment, I wanted to point out a serious error in Zycher's attempt at legal analysis.

Zycher writes:

Adler … notes:

Section 111 of the Clean Air Act … only applies to emissions from sources that "cause or contribute significantly" to the air pollution at issue, suggesting the EPA need not—indeed, perhaps, cannot—regulate sources of de minimis contributions under that provision. The absence of any such qualification in Section 202, however, is a mortal blow to the EPA's position."

That argument cannot be correct. In the context of Section 202(a), "cause or contribute significantly" is replaced with "reasonably be anticipated to endanger public health or welfare." Is Adler ignoring this language, or is he actually arguing that GHG emissions yielding temperature effects almost literally equal to zero nonetheless can "reasonably be anticipated to endanger public health or welfare"?

Zycher's claim here that "in the context of Section 202(a), 'cause or contribute significantly' is replaced with 'reasonably be anticipated to endanger public health or welfare'" is simply wrong, as a moment's review of the relevant statutory text would have demonstrated.

As I noted in my essay, Section 111 requires that the EPA adopt emission standards for a category of stationary sources if that category "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare."

Section 202(a) provides, in relevant part:

The Administrator shall by regulation prescribe  . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles . . .  which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. (Emphasis added.)

"Cause or contribute significantly" in Section 111 is not "replaced with 'reasonably be anticipated to endanger public health or welfare'" in Section 202, as the "reasonably be anticipated to endanger public health or welfare language" appears in both Section 202 and Section 111, word for word. The relevant difference between the two provisions, as I noted in my essay, is the insertion of the word "significantly," indicating that a significant contribution is required under Section 111, but not under Section 202.

So, is Zycher ignoring this language or did he not even read it?

Zycher also tries to claim the Section 202 requires the Administrator to find that emissions from new motor vehicles themselves "endanger public health or welfare." Again he ignores the relevant text. Section 202 requires that the vehicles in question "contribute to" the air pollution that "may reasonably be anticipated to endanger public health or welfare"--not that the emissions from the vehicles themselves endanger public health. Put another way, it is the air pollution to which the vehicle emissions contribute that must be reasonably anticipated to endanger public health or welfare, not the vehicular emissions in isolation. Zycher may think this is irrational or unwise (and I may even agree), but that does not change what the law says.

There is more I could say about Zycher's reply. For now I'll simply note that before Zycher suggests someone else is "ignoring" statutory language, he might want to give it a careful read for himself.

The post When Making a Statutory Argument, It Helps To Read the Statute appeared first on Reason Magazine.

My brief essay, "The Road Not Taken in Trump v. Barbara," is now online as part of a Harvard Journal of Law & Public Policy Per Curiam symposium, "The Future of Birthright Citizenship: What's Next After Trump v. Barbara."

My essay begins:

It is a "well-established principle" that the Supreme Court "will not decide a constitutional question if there is some other ground upon which to dispose of the case." This principle was nowhere to be found in Chief Justice Roberts's opinion for the Court in Trump v. Barbara. It may be the Court's "usual practice" to resolve cases on statutory grounds so as to "avoid the unnecessary resolution of constitutional questions." In Barbara, however, the statutory question received no attention in the Chief Justice's opinion. Nor did it attract meaningful engagement from any of the dissents. Justice Kavanaugh was the only Justice to take the statutory arguments seriously, and he found them dispositive.

Resolving Barbara on statutory grounds would have allowed the Court to avoid the larger Constitutional question. It might also have provided a basis for broader agreement among the Justices. While there is a heated debate as to the original public meaning of the Fourteenth Amendment's Citizenship Clause, the meaning of Section 1401 at the time it was adopted is more readily resolved. It is well-established—if not universally observed—that the Court should "interpret statutory terms to 'mean what they conveyed to reasonable people at the time they were written." As the Court reaffirmed in Loper Bright Enterprises v. Raimondo, "every statute's meaning is fixed at the time of enactment."

A PDF of the full essay is here.

Other contributors to the symposium posted thus far include Gene Hamilton, Eric Wessan, Steven J. Menashi & Elias Neibart. There is also a debate between John Yoo and Linda Denno.

The post The Road Not Taken in <em>Trump v. Barbara</em> appeared first on Reason Magazine.

Plaintiff is a professional musician who has worked as a private music teacher for over thirty years. During the 2023-2024 school year, plaintiff worked as an independent contractor at Valley Catholic Music School … [teaching] private violin and cello lessons to Valley Catholic students in practice rooms across the K-12 campus. Plaintiff also taught strings classes to students and non-student community members at Valley Catholic's summer camp.

"Prior to August 2024, [plaintiff] posted some of [her] opinions regarding certain geopolitical events, including but not limited to the war in Gaza and its occupation by Israeli armed forces, on [her] personal Facebook page." Plaintiff expressed these views "entirely outside of the summer music camp and the private lessons with [her] students at Valley Catholic" and did not share or discuss these opinions with her students.

StopAntisemitism is a national organization focused on highlighting threats to Jewish safety and civil rights. One of the ways it seeks to do this is by publishing recurring features "designed to inform the public about antisemitism expressed by public figures, educators, activists, and institutions," including a recurring feature entitled "Corrupting the Classroom." Through the "Corrupting the Classroom" feature, StopAntisemitism shares publicly accessible statements made by various educators, along with defendants' commentary on the statements. On August 21, 2024, StopAntisemitism shared on its X.com profile a "Corrupting the Classroom" feature focused on plaintiff. The feature, which was spread across several X posts, includes screenshots of statements plaintiff made on her public Facebook account, archived links to those Facebook posts, and defendants' statements about plaintiff and her posts.

Defendants' first posts begin by stating, "Warning to parents of students in Beaverton, OR. Valley Catholic High School's Sue Lewis is not just instructing in the music school—she's using her platform to spread vile antisemitic hate online." Following that is a bulleted list that states that plaintiff "claims Israel killed its own citizens during the October 7th massacre by Hamas terrorists[, ] calls upon Hamas to destroy Israel[, and] denounces the atrocities of Hamas against innocent Israeli victims." The next post begins, "Sue Lewis continues her antisemitic tirades." It is then followed by its own bulleted list, stating that plaintiff "denies the Jewish connection to Israel[; ] claims Jews control humanity, a dangerous trope[; and] labels Zionism (Jewish self-determination) a terror movement based on Jewish supremacy."

The post concludes by stating, "Students at [Valley Catholic] are in grave danger under Sue Lewis. Concerned? Email info@valleycatholic.org." Below the final statement is an archived list of plaintiff's Facebook posts. Screenshots of AntiSemitism's posts are shown below:

Four of plaintiff's archived posts are particularly relevant to this motion. The first is a photograph, which plaintiff posted on February 16, 2024, that appears to show plaintiff wearing a black-and-white keffiyeh. The remaining four posts contain only text. The first post, which was shared by plaintiff on November 2, 2023, states, "Yeah these Hamas militants are going to wipe out Israel with their homemade bombs, small arms, hang gliders, grenades and slingshots. Be afraid, be very afraid." The second post, which plaintiff shared on October 22, 2018, states, "If Jewish people want their own state they shouldn't not put it on some else's state. Genocide is no way to make a state!"

The third post, which plaintiff shared on April 4, 2024, appears to show a dictionary-style definition of "Zionism" as "[a]n inherently violent & terroristic movement for colonizing Palestine through the theft of Palestinian land and the ethnic cleansing of indigenous Palestinians in order to create a Jewish-supremacist settler colony." The fourth and final post, which plaintiff shared on October 21, 2018, states, "Zionist Jews have managed to mentally condition humanity to accept and remain silent as they commit genocide in Palestine." … Following defendants' feature, plaintiff "received a torrent of hateful comments and direct messages, some of which were violent and threatening, from strangers who had read" the posts.

On August 21, 2024—the same day that StopAntisemitism shared its feature on plaintiff—Valley Catholic informed plaintiff that it would not be renewing her contract for the 2024-2025 school year….

Defendants moved to dismiss the case under Oregon's anti-SLAPP statute, which allows for prompt dismissal of legally meritless lawsuits that are brought over speech on matters of "public interest." The court agreed that the posts were indeed on such matters:

Although the parties debate the exact scope of the challenged posts, the outcome is the same under either framing. Defendants argue the posts concern antisemitism, Israel, Palestine, and the war in Gaza—topics plaintiff concedes are issues of clear public interest. Plaintiff counters that the posts' messaging is far narrower, cabined strictly to plaintiff's personal views on these issues. Plaintiff, however, is an educator, and the public is indeed interested in educators' viewpoints on controversial topics, particularly where the educator has posted those viewpoints online for the world to see….

And the court concluded that the claim was indeed legally meritless:

[A]ll the challenged statements are protected opinions under the First Amendment….

Plaintiff challenges four statements here. The first is one of several bullet points listed under the statement "Valley Catholic High School's Sue Lewis is not just instructing in the music school—she's using her platform to spread vile antisemitic hate online." The first challenged statement then reads: (1) "calls upon Hamas to destroy Israel." The second and third statements are bullet points that follow the statement, "Sue Lewis continues her antisemitic tirades." These statements read: (2) "denies the Jewish connection to Israel," and (3) "claims jews control humanity, a dangerous trope." Fourth and finally, plaintiff challenges a statement that follows the second list of bullet points. That statement reads: (4) "Students at @_ValleyCatholic are in grave danger under Sue Lewis." …

None of these statements, when read in context, imply the assertion of objective fact. First, the general tenor of defendants' posts negates the impression that defendants were asserting objective facts about plaintiff. Viewed contextually, defendants' statements clearly express their interpretation of plaintiff's own posts. The posts begin by stating that plaintiff is "using her platform to spread vile antisemitic hate online," and conclude by stating "Lewis' posts are listed below."

Photos of plaintiff's posts are shown below defendants challenged statements, as are the archived links to plaintiff's original Facebook posts. Considering the links to plaintiff's posts, the very nature of defendants' "feature," the clear motivation of the author—who is named StopAntisemitism in the challenged posts—and the opinionated wording used, the general tenor of the posts strongly suggests that the statements reflect only the author's opinions about the words plaintiff chose to share online.

Viewers are invited to read the posts plaintiff herself shared alongside defendants' characterizations. If defendants were claiming that plaintiff said the exact statements at issue, there would be no reason for defendants to also include plaintiff's actual wording in the posts. Any concern that defendants were misquoting plaintiff is put to rest by reading plaintiff's own statements….

The general tenor of defendants' posts commands the same outcome here. "[D]ivorced from [their] context," the challenged statements "might convey the impression that plaintiff identifies," but "[l]ooking at the entire statement," defendants are sharing their interpretations of plaintiff's words, not stating that plaintiff herself made the exact claims defendants wrote.

Second, defendants used hyperbolic language that negates the impression of fact. Indeed, the entire statements at issue are themselves hyperbolic descriptions of plaintiff's own postings—which again is made clear when viewing the statements in context. The specific wording defendants used is also hyperbolic, describing plaintiff's posts as "antisemitic tirades" and accusing plaintiff of "spread[ing] vile antisemitic hate online." Even the use of the phrase "grave danger" is hyperbolic and clearly based on defendants' views about the words plaintiff shared online. Courts have found similarly extreme claims to constitute rhetorical hyperbole when viewed in context….

Whether the statements are susceptible to bring proven true or false is a tricker question but ultimately nondispositive. "Although plaintiff may be correct that the question of" what she called upon, denied, and claimed is "something that is susceptible of being proved true or false, the question here is whether the assertions communicated by defendant[s'] statements are ones that are susceptible to being proved true or false." When viewed in context as Neumann requires, defendants' statements represent their interpretation of plaintiff's words and thus defendants' personal viewpoints. Because "the expression of a personal viewpoint is not something that is susceptible to being proved true or false," defendants' statements cannot constitute actionable defamation….

The court also rejected plaintiff's false light, tortious interference with economic relations claim, and intentional infliction of emotional distress claims, for similar reasons; an excerpt:

"The same rationale that underlies" the Court's decision on those claims "—concern for the free speech implications of penalizing political advocacy—applies with equal force with respect to [the tortious interference] … claim." … [And d]efendants' postings, which contain defendants' constitutionally protected opinions alongside plaintiff's own words, are not extreme and outrageous as a matter of law. Plaintiff's [intentional infliction of emotional distress] claim must therefore fail as well….

It appears likely that plaintiff will therefore have to pay defendants' legal fees, since the Oregon anti-SLAPP statute so provides when a defendant's anti-SLAPP motion is granted; but the amount of the fees is presumably a matter for further proceedings.

Abra Siegel (National Jewish Advocacy Center) and James L. Buchal (Murphy & Buchal LLP) represent defendants.

The post Music Teacher's Defamation Lawsuit Against StopAntisemitism Thrown Out appeared first on Reason Magazine.

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The post Open Thread appeared first on Reason Magazine.

As you likely recall, last year Trump kicked AP out of the Oval Office press pool, because the AP had refused (in my view correctly refused) to call the Gulf of Mexico "the Gulf of America." A D.C. Circuit panel majority, to oversimplify slightly, concluded that this was constitutionally permissible, both as to the Oval Office and as to Air Force One. An excerpt from that 2025 decision (AP v. Budowich):

The White House is likely to succeed on the merits because these restricted presidential spaces {Oval Office, … Air Force One, and … the President's home in Mar-a-Lago} are not First Amendment fora opened for private speech and discussion. The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted.

The majority concluded that those spaces differed from some more broadly open spaces in the White House:

Reporters and photographers have long been permitted access to the White House complex to cover the President and his administration. The White House manages access by requiring journalists to obtain a press credential called a hard pass. More than one thousand journalists hold hard passes, through which they may access spaces such as the James S. Brady Briefing Room, where the White House Press Secretary delivers regular briefings.

Hard pass holders may also sign up via a reservation system to attend larger events hosted in the East Room, which is often used for meetings with foreign leaders, executive order signings, and press conferences. Because the White House has opened these press facilities "to all bona fide Washington-based journalists," hard passes may not be denied arbitrarily or based on the content of a journalist's speech. Sherrill v. Knight (D.C. Cir. 1977)….

When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint. Sherill v. Knight.

On the other hand, we have never suggested that there are any First Amendment restrictions on "the discretion of the President to grant interviews or briefings with selected journalists." Sherrill. In deciding which journalists to speak with, the President may of course take into account their viewpoint. If President Trump sits down for an interview with Laura Ingraham, he is not required to do the same with Rachel Maddow. The First Amendment does not control the President's discretion in choosing with whom to speak or to whom to provide personal access. It is a time honored and entirely mundane aspect of our competitive and free press that public officials "regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters' expression." The Baltimore Sun Co. v. Ehrlich (4th Cir. 2006).

These uncontested principles provide the framework for assessing the AP's claim that the Oval Office and other restricted spaces become nonpublic fora [in which viewpoint discrimination is forbidden -EV] when the White House selects a small group of journalists (such as the press pool) to be present for observational newsgathering and reporting…. The Oval Office is the President's office, over which he has absolute control and discretion to exclude the public or members of the press. As the district court explained, the Oval Office "is a highly controlled location … shrouded behind a labyrinth of security protocols," which "few members of the public will ever" enter. The President uses the space for myriad purposes, including speeches, signing ceremonies, and meetings with senior officials or heads of state. When events in the Oval Office are broadcast to the public, they feature the President's speech and expressive activity.

It hardly needs to be said that the Oval Office, Air Force One, or even the East Room are not places "traditionally open to assembly and debate," nor are they open to the public for expressive activity…. Only about one percent of hard pass holders can fit in spaces like the Oval Office. When access to government property is very limited, considerations of viewpoint may be permissible….

{Both the AP and the district court at various points suggest that if the White House maintains something like the press pool, it must allow access on a viewpoint neutral basis. For the reasons already explained, a group of journalists observing presidential events is not a forum of any sort. Accordingly, the White House should not have to choose between excluding all journalists and admitting journalists under the restrictions of a nonpublic forum. By recognizing the distinctions between different fora "we encourage the government to open its property to some expressive activity in cases where, if faced with an all-or-nothing choice, it might not open the property at all."} …

The messages conveyed in the Oval Office are government speech and opportunities for the President's administration to express its message. "When government speech is involved, forum analysis does not apply and the Government may favor or espouse a particular viewpoint." … Choosing who may observe or possibly speak with the President in these spaces is not the type of action that supports a retaliation claim. Rather, it is more akin to a decision about how the President wields the bully pulpit….

To be sure, CNN has also argued that the revocation of its reporters' White House press passes violated the Due Process Clause as well as the First Amendment. Indeed, the judge's order Thursday morning requiring the White House to reinstate those press passes relied on the Due Process Clause, and didn't reach the First Amendment. (The D.C. Circuit Sherrill v. Knight decision, which the judge relied on Thursday and which AP v. Budowich discussed, concluded that denial of a White House press pass based on viewpoint would violate both the First Amendment and the Due Process Clause.)

But the logic of the D.C. Circuit AP v. Budowich decision, it seems to me, applies equally to the Due Process Clause. The Sherrill precedent expressly yoked the First Amendment and Due Process Clause claims together:

In our view, the procedural requirements of notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the first amendment. This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment.

AP v. Budowich concluded that there was no protected First Amendment interest in access to the Oval Office or Air Force One (as opposed to in getting a White House press pass more broadly), analogizing to the President's power to decide which reporters to give personal interviews. It seems to me to follow that there would likewise be no protected Due Process Clause interest, just as reporters can't claim a Due Process Clause violation if the President decides to stop giving interviews to them.

Finally, note that, just as the precedents that limit revocation of White House press passes don't apply to exclusion from the Oval Office and Air Force One, the Thursday order's terms likewise cover only White House press passes:

Defendants (except for President Trump) and their agents, representatives, and all persons or entities acting in concert with them shall immediately return, reinstate, and restore the White House "hard pass" press credentials held by employees of CNN, MS NOW, and POLITICO that were revoked on or about September 18, 2026, until further Order of the Court or the expiration of this Temporary Restraining Order.

So the President's Air Force One decision doesn't violate the district court's order, as well as being consistent with D.C. Circuit precedent. None of this makes the President's decision wise, but I think it is constitutionally permissible.

The post May President Trump Exclude CNN from Air Force One? Very Likely Yes appeared first on Reason Magazine.

First, the Court only addressed standing in a footnote. I am still not convinced any of the parties had standing but at least 5 members of the Court disagreed, including the Court's leading proceduralist.

Second, the per curiam noted that Justice Kavanaugh's prior orders had no noted dissents. I am still not convinced all three of these orders were unanimous. It may be that Justices Thomas and Alito did not think it was worth alienating Justice Kavanaugh.

Third, the point about this ruling not being a surprise was gratuitous. There were two summary ruling with no explanation. The prior case had serious AISG issues. The federal case did not. Apparently the prior cases were entirely about Purcell. Good to know.

Fourth, the Court says the merits here are unclear. I think this concession was the price of unanimity.

Fifth, this is an ironclad Purcell ruling that will be cited by the conservatives for years to come. The conservatives may see value in having this ruling as unanimous.

I was very wrong about the lighting docket here. I think the Justices felt they had to smack down the 8th circuit here.

The post Lightning Strikes Thrice appeared first on Reason Magazine.

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

"Technology may make surveillance more convenient, but it does not make the Fourth Amendment's protections any less important." So said IJ legislative counsel Alasdair Whitney this week at a congressional hearing on Flock and other automated license plate readers. Read all about it at The Hill. And then maybe check out our model legislation on the topic.

New on the Short Circuit podcast: We welcome on Robert Steinbuch, a professor at the University of Arkansas, to tell a tragic story of the upside-down world of federal remedies.

1. After Anthropic refused to relax contractual prohibitions on the use of Claude for lethal autonomous warfare or domestic surveillance, the DoD deemed it a supply-chain risk and prohibited any of its contractors from using it. D.C. Circuit: Which was fine. Dissent: Clearly not what Congress meant.
2.  

   In 2015, when Somerville, Mass. detective asks an informant to help locate a burglary suspect, the informant threatens to hurt the suspect (over an unrelated personal beef)—and then does, grievously, with a machete. City: We'd like to fire the detective for lack of candor about his role. Arbitrator: Not a chance. (The city's appeal is ongoing.) Detective (in a separate suit): Other officers have done worse and weren't fired; the city is retaliating against me. Jury: Yup, pay the detective $800k. First Circuit: More like $300k. (Some journalism.)

3. Some of a district court's ruling against DHS evaporates in a cloud of Article III standing in this First Circuit opinion. However, requirements for adequate notice regarding third-country removals of noncitizens remain. Less noticeable is the use in footnote 2 of the word "refoulment" (in the context of "chain refoulment"), which means "forcing a refugee or asylum seeker to return to a country or territory where they are likely to face persecution." Originally a French term, it was not listed in the original OED and, unlike many of its Law French friends, seems to have only migrated into English (along with human rights law) after WWII.
4. Maryland appeals court (2016): It was unconstitutional for Baltimore police to use a cell-site simulator without a warrant to locate this shooting suspect. Suppress the evidence. Fourth Circuit (2026): It was unconstitutional, and we have concerns about law enforcement relying on private nondisclosure agreements "as an excuse to conceal or obfuscate important information when seeking a search warrant." But qualified immunity, state-law "public official" immunity, and municipal immunity doom his claims for damages for the nearly two years spent in pretrial detention.
5. It's beyond debate that officers cannot pull someone over without reasonable suspicion and then invent a bogus reason for the stop afterwards, says the Fifth Circuit (per curiam, unpublished). So this case about Alexandria, La. officers who said a motorist failed to signal despite dashcam footage showing otherwise (and who then unlawfully prolonged the stop) will proceed past the pleading stages (nearly four years and over 200 docket entries after it was filed). No qualified immunity. (This is an IJ case.)
6. With many other gun laws not faring so well, it's surprising that the ban on selling guns across state lines (except for gun-industry licensed professionals) has survived. Well, until now, at least in the Fifth Circuit. If you only plan to skim, might we suggest skipping to page 11, which provides a long list of old-timey gun laws, including one related to "Bacon's Rebellion."
7. Sixth Circuit (over a dissent): A Tennessee law that prohibits sharing truthful information with minors about how to obtain an abortion out-of-state is a content-based restriction on speech, and the state didn't even try to argue it satisfies strict scrutiny. Enforcement enjoined.
8. Indiana man gets life for gun and drug crimes, but wait! His sentence was enhanced because of some threatening text messages (that the jury didn't see) discovered by dint of a warrantless forensic examination of his phone. Seventh Circuit (unpublished): Qualified immunity. It's not clearly established that if the examining officer is told there's a warrant, and there isn't, that that's an unconstitutional search.
9. Honestly, kudos to this guy who told the Ninth Circuit that using a stolen identity for over 30 years should constitute "adverse possession" rather than identity theft. The case comes out the way you'd expect, but still: Way to go down swinging—or, y'know, identity-thieving.
10. Idaho declared 40 years ago that the time had come to adjudicate water rights in the Snake River Basin. State courts decreed more than 158,600 water rights over the ensuing 27 years, including claims filed by private landowners, the U.S. gov't, and ranchers whose livestock graze on federal lands. In 2017, three years after the last water right was decreed under this system, Idaho changed its laws about stockwater rights (the right to use water for livestock), from how people could challenge them as forfeited to limiting the feds' ability to acquire such rights. After wading through a procedural morass, the Ninth Circuit concludes the new laws violate the Supremacy Clause.
11. Like many states, Hawai'i requires firearm purchasers to obtain a permit before they can buy a gun. Unique among states, Hawai'i's permits become void after 30 days, and purchasers must bring some of their firearms to a police station for inspection. A Second Amendment violation? Ninth Circuit (en banc): Nope. There's a footnote in Bruen that creates a safe-harbor for this sort of thing. Dissent (VanDyke, J.): "[I]f our court's takeaway from Bruen is that Bruen changed the law to make it harder to mount a successful Second Amendment challenge, then somebody has seriously lost the plot."
12. The Supreme Court has said that if an asylum applicant entered the country illegally but was apprehended a mere "25 yards" inside the border, that's basically at the "threshold of initial entry" and not far enough to gain any constitutional due process rights. ICE: And by "25 yards," the Court meant anywhere in the country. Ninth Circuit: Um, no.
13. "For much of the 150-plus-year history of school yearbooks," recounts the Ninth Circuit, "the embarrassing photographs and cringeworthy anecdotes featured in these annual volumes languished in obscurity, tucked away in basements and closets across the country." In our modern era, Classmates.com now publicizes hundreds of thousands of yearbooks online. And, the Ninth Circuit holds, a district court properly certified classes to seek monetary and injunctive relief against the website's creator for violating California's right-of-publicity statute.
14. On cross-country flight, man, an Egyptian immigrant, won't stay in his seat, repeatedly goes to different bathrooms, stares fixedly at other passengers, and snaps a photo of flight attendants. An attendant approaches to ask him to stay in his seat, but yelling ensues and a federal officer intervenes. Jury: The airline must pay him $7.2 mil for physical and emotional injuries. District court: Vacated. It need not. Ninth Circuit: Indeed, airlines enjoy immunity for reporting suspicious behavior, and that includes immunity for what happens after they report it. Dissent (Higginson, J.): The jury didn't think he was suspicious.
15. In 2019, family sues property manager, others in state court over mold problem in their Coronado, Calif. military housing. Ninth Circuit (2025): And indeed this belongs in state court. Supreme Court: GVR'd! Might be that the defendants are federal officers and this belongs in federal court. Ninth Circuit (this week): It belongs in state court.
16. Alabama man with terminal brain cancer and a scarred, shaved head with staples in it, who is shirtless and covered in blood (from shattering an ambulance's windshield with his fists), disobeys orders to stop advancing toward officers—and then attacks an officer, who shoots him dead. Eleventh Circuit: And here's 87 pages on why that's not a Fourth Amendment violation, precipitated—your humble summarist is bold to imagine—by some arguments from the man's estate's lawyer that were not well taken.

"The Court is simply not inclined to take the Government's word for it." This week, a federal judge in Alabama issued a stay barring the feds from enforcing what sure seem (to the court) like three unconstitutional policies: warrantless raids of construction sites, detentions of (non-white) workers on those sites without individualized suspicion, and disregard of evidence that the detainees are citizens, like DHS-certified REAL IDs. "For the first time in a long time, I will be able to go to work without worrying that I will be arrested for no reason," said IJ client Leo Venegas. Click here to learn more.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason Magazine.

From Judge Gregory Katsas, joined by Judge Neomi Rao, in today's D.C. Circuit decision in Anthropic PBC v. U.S. Department of War:

To succeed on such a First Amendment retaliation claim, the plaintiff or petitioner must prove that (1) it engaged in protected speech, (2) the government took materially adverse action against it, and (3) the speech caused the materially adverse action

Anthropic has satisfied the first and second prongs of this test, but not the third. The First Amendment squarely protects Anthropic's advocacy regarding the safe and appropriate use of AI products. Moreover, the Department's exclusion of Claude from its supply chain plainly qualifies as a materially adverse action. However, we can discern no causal connection between the two. Instead, the record makes clear that the Department removed Anthropic from its supply chain not because of its advocacy, but because Anthropic refused to agree to a contract term the Department deemed essential to national security.

Consider the timeline. By its own admission, Anthropic has advocated for use and safety restrictions since its founding: The company describes its own commitment to model safety as "the core of Anthropic's mission," and describes its use restrictions as reflecting "the very purpose for which [the] company was founded" and its "deeply held values." But throughout 2024 and 2025, the Department never acted adversely to Anthropic. Instead, it included Anthropic in a $200 million AI contract awarded in July 2025, and it sought to expand its relationship with Anthropic.

Additionally, in January 2026, Amodei published a long article calling for "limits" and "safeguards" on the use of AI-powered weapons in democracies. But instead of retaliating against Anthropic because of this advocacy, the Department continued to pursue negotiations.

Only when the negotiations broke down did the Department take action: On February 24, the Secretary met with Amodei and demanded that Anthropic accept an "all lawful uses" term by February 27. On February 26, Amodei published a final, public refusal to assent to that term. On February 27, the Secretary announced his intention to exclude Anthropic from the Department's supply chain. And on March 3, he made the formal, written determination required by the Supply Chain Security Act.

Anthropic points to various pungent statements in the Secretary's February 27 social media post. Among other things, the Secretary denounced Anthropic's "sanctimonious rhetoric," "virtue-signaling," and "Silicon Valley ideology." Such rhetoric seldom provides a sound basis for judging the lawfulness of federal executive action.

In any event, for all its flourishes, the Secretary's social media post squarely addresses Anthropic's refusal to provide the "all lawful uses" contractual authorization. He described Anthropic's behavior as a "textbook case of how not to do business" with the Pentagon. He reiterated the Department's demand for "full, unrestricted access to Anthropic's models for every lawful purpose in defense of the Republic." And he characterized Anthropic's refusal to provide that access as imposing an unacceptable "veto power over the operational decisions of the United States military." The nub of this dispute was contractual, and the First Amendment did not require the Department to continue a contractual relationship that it viewed as creating a national-security risk.

Judge Karen LeCraft Henderson didn't reach the First Amendment question, because she concluded that the action against Anthropic wasn't authorized by statute.

The post Anthropic's "Supply Chain Risk" Designation Stemmed from Its Refusing to Agree to Contract Terms, Not Its Speech appeared first on Reason Magazine.

My order requires no clarification. It is perfectly clear. Counsel for Ms. Freeman do not get to set the rules.

Ms. Freeman will answer EVERY question that is put to her—whether or not the question was asked previously.

If Ms. Freeman asserts attorney client privilege with respect to a question that was not previously asked, you are to call my chambers immediately to obtain a ruling.

If I have to rule on more than one frivolous attorney client privilege objection, there will be consequences, in the form of sanctions, adverse inferences, referrals to the court's Grievance Committee with the possible revocation of pro hac vice admission to practice or admission to the Bar of this Court, and the possibility of a civil contempt holding. Please understand—this is not an idle threat. I am tired of this. I do not believe that Ms. Freeman's counsel is acting in good faith and I will not stand for being jerked around—and I am indeed being jerked around—in this manner by any lawyer who practices before me.

FYI: I will not be in chambers after 5 PM EDT on Wednesday. If there are privilege objections asserted after that hour, you will have to come back on Thursday morning at noon (9 AM PDT) so that I can rule on them. There will not be any deferred procedures for resolving privilege issues. At that point the deposition will be completed in my (telephonic) presence. I do not care if this does not accord with your schedule. My schedule has not been of any particular interest to Ms. Freeman and her attorney up to now; my schedule controls now.

A related filing from Ms. Freeman's lawyer defending his position is here.

Thanks to James Creigh for the pointer, and to Seamus Hughes for apparently first flagging the order.

The post "I Will Not Stand for Being Jerked Around … by Any Lawyer Who Practices Before Me" appeared first on Reason Magazine.

A man who has lived in Houston since he was three years old, who built several businesses in Texas, and who accumulated over $100 million in community assets during a Texas-domiciled marriage, traveled to Pakistan to obtain a unilateral divorce from his wife.

He did so without her knowledge or consent, using an Islamic legal mechanism called talaq. His wife was not served with process. She was not heard. She received no notice at all until two years after the divorce was final.

In an unbroken line of decisions originating before the ratification of our Constitution, we have recognized the fundamental "principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result." As a result, efforts to give notice "must include inquiries that someone who really wants to find the defendant would make." Gamesmanship designed to "hide the ball" and prevent the defendant from learning of the lawsuit is inconsistent with our foundational notions of justice.

The Pakistani divorce judgment was issued contrary to these principles. Accordingly, it cannot be afforded comity….

Husband and Wife married in Pakistan in 2008 when Wife was eighteen and Husband was twenty-eight. Husband had been living in Houston since age three but had traveled to Pakistan to find a wife through an arranged marriage. Wife came to Houston in 2010 after obtaining a visa.

Throughout the course of their marriage, the couple amassed over $100 million in community assets. At the same time, Wife alleges that Husband continuously abused her physically and emotionally. In 2012, Husband sent Wife back to Pakistan, ostensibly to renew her visa. But this turned out to be a ruse: In January 2013, Husband divorced her, without her knowledge, through a talaq proceeding in Pakistan.

"A divorce under Sharia law is called a talaq." American courts have recognized that "under Islamic law," a husband initiates a talaq divorce by pronouncing the words "I divorce thee" three times. Our colleagues in North Dakota recently described talaq proceedings as follows:

Under Islamic law, a husband has the right to initiate a divorce ("talaq") against his wife. All that is required to achieve talaq is for a husband to pronounce his intent to divorce his wife on three separate occasions, either verbally or in writing. The husband does not need to communicate his three pronouncements to his wife. She need not be present for them or even aware of them. A wife cannot object to a talaq.

According to Wife, Husband did not inform Wife before or afterwards that they would be divorced. No one notified Wife of the proceedings or served her with process. Instead, Husband purported to effectuate service by publishing a notice in a small local Pakistani newspaper a mere five days in advance. Wife did not happen to come across that publication.

Two years later, Wife finally learned of Husband's actions. She then set about challenging that talaq divorce in Pakistan under Pakistani law. When Wife made it back to Houston in June 2015, she promptly filed for divorce in a Harris County court and sought division of marital property. After much procedural wrangling across multiple Pakistani courts, the Pakistan Supreme Court in 2018 denied relief. (The parties dispute whether this denial was procedural or substantive, a debate we need not resolve today.) The Harris County trial court relied on those Pakistani proceedings to dismiss Wife's divorce petition for want of jurisdiction. The trial court granted comity to the Pakistan Supreme Court's judgment and thereby recognized that Husband and Wife were divorced in Pakistan as of May 22, 2013.

The trial court then denied Wife's claim for division of the marital estate. It heard testimony that under Pakistani law: (1) Wife was precluded from bringing additional claims for division of property under Pakistan's preclusion rules and its prohibitions against claim splitting; and (2) Pakistan does not recognize community property—instead, each party is entitled to the property titled in his or her own name. On the basis of that testimony, the trial court concluded that the Pakistani proceedings were conclusive. It accordingly rendered a take-nothing judgment against Wife. The court of appeals affirmed….

The Texas Supreme Court reversed:

In the nineteenth century, the U.S. Supreme Court explained that no sovereign is ever required to recognize the judgment of a foreign sovereign, and comity "is neither a matter of absolute obligation, on the one hand nor of mere courtesy and good will, upon the other." The Court then identified relevant considerations a state court should review in exercising its discretion. Particularly relevant here, it explained that "[a] judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law." That view comports with the longstanding principle that in deciding whether to recognize a foreign judgment, American courts must balance "international duty and convenience" with the rights and protection of their own citizens…. [C]omity of nations "is derived altogether from the voluntary consent [of each nation]" and is not required when comity would be "contrary to [the forum's] known policy, or prejudicial to its interests" …. As Justice Story explained almost 200 years ago, "No nation can be justly required to yield up its own fundamental policy and institutions in favour of those of another nation."

Our State's courts have said much the same….

With those background principles in mind, we turn now to the petition before us. Husband claims that the notice he provided of the Pakistani talaq proceeding—i.e., publication in a local Pakistani newspaper, which Wife never saw, five days before the proceeding at issue—was adequate. We disagree, and we conclude that on these facts, the deficient notice forecloses comity….

"[U]nder both the United States and Texas Constitutions, a 'fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" This is "no mere rule of procedure," but rather, "a 'principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result.'" When courts render judgment "without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making a defence, the sentence is not so much a judicial sentence as an arbitrary sovereign edict." …

To be sure, service by publication is not always impermissible, and there are situations in which it may be appropriate—as an obvious example, when the victims of terrorist attacks needed to serve Osama Bin Laden and other Al Qaeda operatives notice of pending lawsuits. Still, we have cautioned "that citation by publication or posting violates due process when the address of a known defendant is readily ascertainable." …

Husband put on no evidence that the typical channels of spousal communication—telephone, text messages, email, social media messaging, in-person communication, mutual friends, and so on—were unavailable. Under these circumstances, the trial court should have heeded the default rule that "when a defendant's identity is known, service by publication is generally inadequate." As a matter of law, the notice provided here is constitutionally inadequate, and far short of what our public policy demands. Other countries are welcome to conclude otherwise, but their judgments are not entitled to comity in a Texas court.

{There may well be other reasons to deny comity to this Pakistani judgment, and Wife invokes multiple alternative bases in her petition. We do not address those issues, however, because it is sufficient for our purposes to reverse the judgment below for the reasons set out in this opinion.}

Thanks to Josh Blackman for the pointer.

The post Texas Court Refuses to Enforce Pakistan Court's Divorce Judgment, in $100M-Marital-Community-Asset Case appeared first on Reason Magazine.

This case arises from a decision by the Department of War to exclude Claude, an artificial-intelligence product developed by petitioner Anthropic PBC, from its supply chain under the Federal Acquisition Supply Chain Security Act of 2018. The Department made this decision after Anthropic refused to relax contractual prohibitions on the use of Claude for lethal autonomous warfare or domestic surveillance. Anthropic challenges the exclusion as arbitrary, unauthorized by the governing statute, and unconstitutional.

We reject these challenges. The Department had ample support for its conclusion that the continued integration of Claude into the Department's information systems, by the Department or its contractors, presented a statutorily covered national-security risk. As Anthropic admits, the company encodes restrictions into Claude that prevent the model from performing tasks that Anthropic wishes to prevent. On more than one occasion, these restrictions have stopped Claude from performing tasks requested by government users. And recently, a dispute arose over whether the contractual prohibitions barred the use of Claude in an ongoing overseas military operation, leaving the Department uncertain whether Claude would perform as needed and intended.

Anthropic's constitutional claims are also without merit. Its due-process claim fails because the Department promptly notified the company of the exclusion and its supporting rationale, and then gave the company a fair opportunity to contest the exclusion. And Anthropic's First Amendment claim fails because the Department excluded Anthropic from its supply chain based on the company's refusal to assent to a contract term that the Department deemed essential, not based on the company's support for greater governmental regulation of AI technology….

This case raises profoundly difficult questions about the appropriate military uses of an almost unimaginably powerful new technology. The Secretary raises the deeply sobering prospect of overly constrained AI models shutting down unexpectedly and thus causing important military operations to fail. Anthropic raises the deeply sobering prospect of unconstrained AI models hallucinating inappropriate targets for lethal military force. Both possibilities present obvious national-security concerns. But in our Republic, it is the President and the Secretary of War who must determine how best to balance the competing risks. In doing so here, the Secretary did not transgress any limits on his authority under the Supply Chain Security Act or the Constitution. Accordingly, we deny the petitions for review.

Judge Karen LeCraft Henderson dissented on statutory grounds:

Whether the Secretary of the Department of War (Secretary) lawfully invoked his statutory powers under the Federal Acquisition Supply Chain Security Act of 2018 (FASCSA) turns on whether Anthropic falls within the statute's definition of a "supply chain risk." "When Congress takes the trouble to define the terms it uses," courts should apply them "with rigor." And here, the Congress has taken great pains to define the type of "supply chain risk" that must exist before the Secretary invokes the sweeping powers FASCSA confers on him. Under the statute, he may exercise his authority to blacklist a procurement source from the Department's supply chains "only after" the Department concludes the source poses a "significant" risk that it will:

sabotage, maliciously introduce unwanted function, extract data, or otherwise manipulate the design, integrity, manufacturing, production, distribution, installation, operation, maintenance, disposition, or retirement of covered articles so as to surveil, deny, disrupt, or otherwise manipulate the function, use, or operation of the covered articles or information stored or transmitted on the covered articles.

My colleagues do not dispute that whether Anthropic qualifies under this definition depends entirely on the scope of section 4713(k)(6)'s residual clause: "or otherwise manipulate." The Department and Anthropic offer competing definitions of that term. According to Anthropic, the residual clause uses "manipulate" to denote intentionally subversive acts, carried out through deceptive means.

The Secretary argues, and the majority agrees, that the term encompasses much more. To "manipulate" a covered article, in their view, means to "move, arrange, operate, or control [it] by the hands or another body part or by mechanical means," regardless of purpose or motive—for example, how one might "manipulate" a doorknob by turning it or a gas pedal by pressing it down. Both definitions may be linguistically possible but basic canons of construction require us to decide which one fits best within section 4713(k)(6)'s surrounding text, construed as a whole. Because I believe that the context decidedly favors the narrower reading, I respectfully dissent….

I cannot agree that this is the scenario the Congress had in mind when it enacted FASCSA. It enacted the statute in response to calls from the U.S. intelligence community for legislation to meet the threat of "[h]ostile nation state and other bad actors" infiltrating the federal government's information and technology systems through its supply chains. For years, national security agencies had warned that companies "beholden to foreign governments" and other malicious actors were introducing compromised products into "[m]any of the technologies the Federal Government relie[d] on for vital, daily functions." In their published reports, the agencies described numerous covert security breaches carried out by nefarious actors—and in terms that closely track section 4713(k)(6)'s key terms.

Such historical evidence showing how a statute's terms were used pre-enactment sheds light on what sense those words are meant to carry when the Congress writes them into law. That history supports Anthropic's reading. And it refutes the view that "manipulat[ion]" of a covered article encompasses anything like the conduct that, under today's holding, gives rise to a supply chain risk—that is, a contractor's honest and upfront enforcement of restrictions on a covered article's use disfavored by the government.

The majority responds in turn as to the statutory argument; a short excerpt:

Two final points. First, for the reasons discussed above, we reject Anthropic's attempt to engraft onto the statutory definition an overarching requirement of acting surreptitiously, just because two of the seven verbs in the strings (sabotage and surveil) have that connotation. Second, we reject Anthropic's attempt to glean from the legislative history a focus on "foreign companies working at the behest of foreign states." Whatever paradigmatic examples individual members of Congress may have had in mind, the statutory definition is not limited to "adversar[ies]" and instead covers "any person," which cannot refer only to foreign entities….

In sum, we conclude that the Secretary's concern about Anthropic disabling Claude from performing lawful actions requested by the Department qualifies as a "supply chain risk" within the meaning of section 4713.

There's a lot more, both on the statutory and constitutional questions, in the full opinions. I hope to have more on some of these issues later, but in the meantime I thought I'd pass along what struck me as key excerpts.

Sharon Swingle, Brett A. Shumate, Eric D. McArthur, Sean R. Janda, and Brian J. Springer represent the government.

The post Anthropic's Claims Over Its "Supply Chain Risk" Exclusion by Department of War Rejected appeared first on Reason Magazine.

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I may have to eat crow on the lightning docket (no order in the Missouri case), but things are brewing with the third-country removal case. The Solicitor General's emergency application in United States v. D.V.D. lays out the issue neatly:

This is the third time the government has been forced to seek emergency relief from the district court's orders in this case about "third-country removals"—an essential tool to remove certain aliens, including some of the worst criminal aliens. This Court granted relief on both previous occasions. The latest order rests on the same fundamentally flawed legal premises as the previous rulings, and the nominal new grounds that the lower courts added to try to buttress those prior decisions are even weaker than those that failed to sustain the originals. Meanwhile, the equities that supported this Court's intervention (twice) have, if anything, only grown stronger in favor of the government's continued enforcement of the challenged policy. A stay is thus once again warranted. Cf. Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) ("Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases."). "Although the posture of the case has changed, the parties' legal arguments and relative harms generally have not. The same result that [this Court] reached in [June 2025] is appropriate here." Noem v. National TPS Alliance, 146 S. Ct. 23, 24 (2025).

An immediate administrative stay is particularly critical. The First Circuit had previously stayed this latest order pending appeal; the government thus has been conducting third-country removals under the challenged policy for the last 15 months. But at 11:36 p.m. last night—without even allowing the government to respond to respondents' motion (itself filed at 8:20 p.m.)—the First Circuit abruptly dissolved the stay. The unexpected springing-back of district court's order has, this Office is informed, created substantial logistical problems with ongoing removal operations— including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals. For example, DHS informs us that it has already canceled a flight to three separate countries carrying 70 aliens with criminal convictions (including aggravated assault and serious drug offenses), and that the cancellation has required a new round of diplomatic engagement with each of the three countries. Those disruptions will only get worse. To halt that chaos, an immediate administrative stay should be entered while the Court considers this application. In light of the ongoing disruption caused by the First Circuit as well as the prior stays granted by the full Court, if the Circuit Justice enters a briefing schedule without also entering an immediate administrative stay, the government respect fully requests that its request for the immediate administrative stay be referred to the full Court. Cf. Rollins v. Rhode Island State Council of Churches, 146 S. Ct. 402 (2025) (No. 25A539); A.A.R.P. v. Trump, 145 S. Ct. 1034 (2025) (No. 24A1007).

Circuit Justice Jackson has denied an administrative stay, and granted a four-day response time. That is leisurely compared to the 14 hours Justice Kavanaugh gave Missouri to respond.

I think now the case is in fact referred to the full Court. Let's see whether there are five votes for an administrative stay. I think Justice Jackson tried to call her colleagues' bluff.

My SCOTUSBlog post on empowering the majority offered a similar remedy:

It is not clear how many votes are needed to take a case away from a circuit justice. Here, I propose a clear rule: the Refer-6. Six justices, at any point, can vote to refer any pending matter to the full court. At the latest, the Refer-6 can be invoked after the briefing is completed. The Refer-6 can also be invoked to establish a briefing schedule. Or the Refer-6 can be invoked as soon as an application is filed in order to enter an administrative stay.

Realistically, the Refer-6 can be discussed even before an emergency application is filed. Usually, the clerk of the Supreme Court is given a heads-up that an emergency application is on its way. The Refer-6 can follow a Conference-3. At that point, the justices can informally establish a game plan, given how the case has proceeded through the lower courts. If six justices decide this matter belongs before the full court, the referral can happen right away. Of course, the circuit justice can dissent from the order being referred to the full court. But the circuit justice cannot stop the referral.

Some of my proposals were designed to promote collegiality. The Refer-6 would have just the opposite effect. It would signal that the court did not want a particular circuit justice to have power over a matter. But I suspect this Rubicon was already crossed in the Rhode Island case. Jackson perhaps tried to do too much in her capacity as circuit justice, and her colleagues apparently countermanded her.

Justice Jackson makes the case for unilateral SCOTUS reform.

Update: Today Justice Jackson gave a speech at the University of District of Columbia. And this evening, Chief Justice Roberts, and Justices Barrett and Kavanaugh were at the White House State Dinner. (I wonder if the Chief was given a tour of the new construction he tried to stop.) Query if the Justices somehow had an informal conference about the administrative stay before Jackson denied it.

The post Because KBJ Denied Administrative Stay in Third-Country Removal Case, The Application Should Be Referred To The Full Court Now appeared first on Reason Magazine.

From a just-filed affidavit:

For more on the initial noncompliance, see here.

The post White House Says It's Complying with TRO Requiring Restoration of CNN, MS NOW, and Politico Reporters' Access, Despite … appeared first on Reason Magazine.

Here's an announcement for law student readers of this blog. The International Moot Court Competition in Law & Religion just posted the problem for this year, about whether a public-school class on AI would constitute an establishment of religion. Now in its tenth edition, the competition draws students from the US and Europe to argue a case before judges representing the US Supreme Court and the European Court of Human Rights. This year's argument round will take place at the University of Milan in March. Details at the link.

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From Judge Bernard Jones (W.D. Okla.) yesterday in Mastriano v. Gregory:

According to Plaintiff:

This is an action for damages arising from Defendants' coordinated efforts of fraud, defamation, and anti-competitive conduct designed to destroy Plaintiff's academic reputation, eliminate him as a competitor in the market for World War I military history and scholarship, and interfere with his political campaigns for public office.

In the SAC [Second Amended Complaint], Plaintiff alleges he is a retired United States Army colonel, a recipient in 2013 of a Ph.D. in United States military history from the University of New Brunswick (UNB), a former Army War College professor, a published author of books on Sergeant Alvin York (Sgt. York) and World War I as fought in France, and a public speaker on military history. Plaintiff also alleges he is a current state senator for the Commonwealth of Pennsylvania's 33rd District, was the 2022 Republican nominee for Pennsylvania governor, and according to Plaintiff, "was considered the frontrunner for the 2024 U.S. Senate seat." …

Gregory was a graduate student and Ph.D. candidate at the University of Oklahoma. Gregory is one of several historians who assert that Sgt. York's role in the capture of German soldiers was exaggerated, in direct contrast to Plaintiff's position regarding Sgt. York's role. Gregory has written a book, Unraveling the Myth of Sgt. Alvin York: The Other Sixteen, describing the soldiers who fought alongside Sgt. York but whose contributions are largely absent from the historical account Plaintiff and others popularized.

While conducting his research, Gregory identified what he believed were numerous errors in Plaintiff's scholarship and reported 213 alleged inaccuracies to Plaintiff's publisher and UNB in 2021 and 2022. When Plaintiff ran for governor of Pennsylvania in 2022, the media covered Gregory's reports of inaccuracies and his opinion that the large number of inaccuracies suggest academic fraud….

The court rejected Plaintiff's RICO claim:

… Plaintiff alleges RICO violations based upon Gregory's complaints regarding errors in Plaintiff's PhD dissertation, UNB's release and investigation of Plaintiff's embargoed dissertation during the time Plaintiff was running for election for governor of Pennsylvania, Defendants' discussions and criticism of Plaintiff's dissertation to the press, and Gregory's contact with the publisher of Plaintiff's books questioning Plaintiff's research and thesis. "To state a RICO claim, a plaintiff must allege that the defendant violated the substantive RICO statute, 18 U.S.C. § 1962, by setting forth four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." The Supreme Court has defined an enterprise as "a group of persons associated together for a common purpose of engaging in a course of conduct." "Under this test, a group must have [1] a purpose, [2] relationships among those associated with the enterprise, and [3] longevity sufficient to permit these associates to pursue the enterprise's purpose."

Having carefully reviewed the SAC, the Court concludes Plaintiff has not alleged sufficient facts showing the existence of an enterprise among Gregory and his co-defendants. Specifically, the Court finds Plaintiff has failed to allege sufficient facts showing the existence of a common purpose among Gregory and the UNB Defendants. In fact, based upon the facts set forth in the SAC, the interests of Gregory and the UNB Defendants regarding Plaintiff's dissertation and PhD actually conflict. As alleged in the SAC, Gregory has criticized Plaintiff's research in support of his dissertation for years; this is the same research UNB accepted in granting Plaintiff his PhD. Gregory's criticism of Plaintiff's scholarship, thus, also impugns UNB's doctoral policies and procedures.

The court rejected plaintiff's antitrust claims:

Plaintiff alleges that Defendants "conspired to restrain trade and commerce internationally and interstate by joining with James Gregory III to accept his complaints against Col. Mastriano's PhD and thesis, and books, all in exchange for Mr. Gregory's similar-topic book and speaking engagements would benefit and that UNB's economic opportunities would advance in the face of smears of one of its students, Col. Mastriano." {The Court is perplexed how criticisms levied against the PhD Plaintiff obtained at UNB would advance UNB's economic opportunities.}

In order to state a claim under Section 1 of the Sherman Act, a plaintiff must plead the following three elements: "(1) a contract, combination, or conspiracy among two or more independent actors; (2) that unreasonably restrains trade; and (3) is in, or substantially affects, interstate commerce." "To carry its initial burden, a plaintiff cannot simply show that the challenged action adversely affected [its] business. Instead, because the antitrust laws are concerned with effects on consumers rather than competitors, the plaintiff must show an adverse effect on competition in general." Having carefully reviewed the SAC, the Court concludes that Plaintiff has not alleged sufficient facts showing an adverse effect on competition in general. Plaintiff's allegations solely focus on the harm to his own business interests….

Plaintiff [also] alleges:

Defendants have illegally tied Gregory's conflicted and compromised complaints against Col. Mastriano's PhD to a widespread attack on his intangible voting rights and property interests including his elections and campaigns to public office and the publication of his books on Sgt. Alvin York and the WWI conflict in France….

Defendants have further tied these complaints to a widespread effort to prevent fair market opportunities with his earned PhD by making maliciously false accusations against Col. Mastriano regarding academic dishonesty, political viewpoints falsely imputed to him, and even malicious lies of violence.

The purpose and effect of this conspiracy to violate the Sherman Anti-Trust Act is to prevent Col. Mastriano from offering different story accounts and history regarding the heroism of Sgt. Alvin York and his miraculous victories on the battlefields of France….

The Tenth Circuit has defined a "tying arrangement" for purposes of the Sherman Act as "an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (tied) product, or at least agrees that he will not purchase that product from another supplier." A tying arrangement is generally illegal under § 1 of the Sherman Act if a party can show the following: "(1) two separate products or services are involved; (2) the sale or agreement to sell one product or service is conditioned on the purchase of another; (3) the seller has sufficient economic power in the tying product market to enable it to restrain trade in the tied product market; and (4) a not insubstantial amount of interstate commerce in the tied product is affected." …

Plaintiff has not alleged any facts showing the existence of a tying arrangement…. Plaintiff has failed to allege any facts showing the sale or agreement to purchase one product is conditioned on the purchase of another product.

The court also rejected plaintiff's defamation claim, on statute of limitations grounds; but it held that plaintiff's false light claim against Gregory can go forward (since the Oklahoma statute of limitations allows two years to file a false light claim rather than the one year allowed for defamation):

To state a claim for false light invasion of privacy, a plaintiff must allege:

(1) the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff before the public in a false light, (2) the false light in which the plaintiff was placed would be highly offensive to a reasonable person, and (3) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Presuming all of Plaintiff's factual allegations are true and construing them in the light most favorable to Plaintiff, the Court concludes that Plaintiff has set forth sufficient allegations to state a false light claim. The Court further finds Plaintiff's claims are not premised entirely on Gregory's academic opinions. Finally, the Court finds Plaintiff has sufficiently pled actual malice in relation to his false light claim. Accordingly, Plaintiff's false light claim will not be dismissed….

Here's the plaintiff's argument about the false light claim, which it looks like the court found persuasive at the motion to dismiss stage.

The SAC alleges that Gregory said Mastriano 'lied about documents,' 'fabricated sources,' and committed 'fraud.' Those are plainly verifiable accusations of dishonest conduct, not mere taste or interpretation. This is further demonstrated by Gregory's own averments that he repeatedly made complaints against Col. Mastriano's work with both his publisher and against his UNB PhD, and on the public airways during his political campaigns, all alleging dishonest conduct and a direct attack on Col. Mastriano's character. These outrageous actions of Gregory are not mere matters of opinion as he now claims….

Gregory's reliance on Greenbelt Coop. Publ'g Ass'n v. Bresler (1970) is misplaced. There, the term 'blackmail' was held to be 'no more than rhetorical hyperbole, a vigorous epithet' in the rough-and-tumble of a local zoning dispute. Here, by contrast, Gregory is alleged to have presented himself as a historian with identified documentary findings, to have spoken to journalists and radio audiences in that capacity, and to have accused Mastriano of intentional academic deceit. In that setting, a reasonable listener would understand Gregory to be asserting verifiable facts, not indulging in loose metaphor….

Nor do ONY, Dilworth, or Turkish Coalition compel dismissal. ONY (2d Cir. 2013) involved peer-reviewed scientific conclusions accompanied by disclosed data and methodological limitations. Dilworth (7th Cir. 1996) involved a book criticizing 'mathematical cranks'—the Seventh Circuit stressed that the dispute was about ideas and methods, not accusations of concrete dishonest acts. And Turkish Coalition recognized that differing views of source credibility in history may be opinion, but it did not hold that a scholar may publicly accuse a named rival of fabrication and lying without consequence. Gregory's alleged statements cross the line those cases preserve….

The SAC adequately pleads [actual malice, defined] … as publication with knowledge of falsity or reckless disregard for truth. Reckless disregard exists when the speaker in fact 'entertained serious doubts as to the truth of his publication.' And 'purposeful avoidance of the truth' is probative of actual malice.

The SAC … alleges Gregory had long familiarity with the same body of historical materials; that he persisted in accusing Mastriano of fraud and fabrication despite prior institutional handling of the matter; that he sought release and use of the embargoed dissertation to fuel the campaign; and that he republished the accusations during politically salient moments to maximize damage. Those facts permit the reasonable inference that Gregory was not merely mistaken but acted with knowledge of falsity or reckless disregard….

Of course, at the later summary judgment stage, the plaintiff will have to offer evidence and not just plausible allegations.

Greg Harold Greubel (FIRE) and Robert D. Nelon (Hall Estill-OKC) represent Gregory. Disclosure: I had earlier successfully moved to intervene in the case to unseal certain allegedly libelous material that formed the basis of part of Mastriano's lawsuit.

The post Pennsylvania Sen. Douglas Mastriano's Lawsuit Related to His Ph.D. Dissertation Mostly Thrown Out appeared first on Reason Magazine.

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From Judge Timothy Kelly's TRO today in CNN, Inc. v. Trump:

On the afternoon of September 18, 2026, President Trump announced in a social media post that, "effective immediately," he was "banning" the news organizations CNN, MS NOW, and POLITICO "from the White House." And those news organizations allege that over the weekend their reporters were denied access to the White House and had their "hard pass" press credentials deactivated. Plaintiffs—the three news organizations and three individual reporters—sue the President and several White House officials and move for a temporary restraining order, asking the Court to order the immediate reinstatement of their hard passes pending further proceedings. The Court's resolution of their Motion is dictated by the application of well-known D.C. Circuit precedent that this Court must faithfully apply. For the reasons explained below, the Court will grant the Motion….

Plaintiffs have shown a likelihood of success, at least on their Fifth Amendment procedural due process claim. The merits of this claim are assessed in two steps: "the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Plaintiffs have shown they are likely to succeed at both steps.

As for the first, the D.C. Circuit held in Sherrill v. Knight (D.C. Cir. 1977) that "the interest of a bona fide Washington correspondent in obtaining a White House press pass … undoubtedly qualifies as [a] liberty [interest] which may not be denied with-out due process of law under the fifth amendment." And if there were any doubt about what Sherill meant, the D.C. Circuit more recently reaffirmed this conclusion in Karem v. Trump (D.C. Cir. 2020), holding that "a duly issued hard pass may not be suspended without due process."

Plaintiffs are also likely to succeed in showing that their hard passes were revoked without constitutionally adequate due process. The "general rule" is that "individuals must receive notice and an opportunity to be heard before the Government deprives them" of a constitutionally protected interest. Indeed, the Supreme Court has "described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest."

Karem also holds that, because of the substantial interests at stake, before the Government can revoke the White House-issued hard pass of a reporter it must promulgate rules or standards governing the conduct that would lead to such revocation. And the reporter must "receive fair notice not only of the conduct that would subject him to punishment, but also of the magnitude of the sanction that the White House might impose."

Defendants do not dispute that Plaintiffs did not receive notice and an opportunity to be heard before their hard passes were revoked. And, as in Karem, the record is bereft of any relevant "formally articulated standards" in place before any of the conduct for which Defendants revoked their hard passes. One standard Defendants appear to offer—reflected in letters they sent to Plaintiffs on September 22, 2026, identifying their objectionable reporting—is so vague it hardly does the trick. See, e.g., ECF No. 16-1 ("[Y]our organization has exhibited behavior in violation of the standards of professionalism and decorum expected of those given access to the White House Complex."). Moreover, Defendants renewed Plaintiff Betsy Klein's hard pass several months after she published some of the identified reporting, undercutting any argument that she or her employer, for example, had the requisite notice that the conduct at issue violated a relevant standard. Finally, nothing put Plaintiffs on notice of the magnitude of the sanction Defendants imposed.

None of Defendants' arguments convince the Court that Plaintiffs are not likely to succeed on their due process claim. Defendants say that Sherrill and Karem were wrongly decided. Maybe—but this Court is bound by D.C. Circuit precedent, full stop.

Defendants also point to the letters referenced above, which they assert afford Plaintiffs post-deprivation notice of the revocations and an opportunity to be heard. And Defendants cite cases that suggest that such a post-deprivation process suffices in "extraordinary circumstances." These are such circumstances, Defendants argue, because Plaintiffs have endangered national security through their reporting.

But the circumstances here are not so "extraordinary" as to permit deviation from the "essential principle of due process" that a deprivation of liberty "be preceded by notice and opportunity for hearing." Zevallos holds that post-deprivation due process may suffice in unusual situations, such as when "providing notice before blocking the assets of international narcotics traffickers would create a substantial risk of asset flight." But nothing in the record suggests the need for such urgency here. Indeed, some of the reporting identified by Defendants in the letters to Plaintiffs stretches back months or years. The sorts of stories Defendants identify in the letters to Plaintiffs are routine. And as discussed further below, the Court is skeptical—at least on this record—that Defendants' interest in safeguarding national security is the actual motivation for, or is even advanced by, the revocation of Plaintiffs' hard passes. Finally, even if the circumstances here allowed for post-deprivation process, Defendants are still left with the problem that, before the reporting at issue, Plaintiffs still did not "receive fair notice" of either the "conduct" that would lead to a sanction or of "the magnitude of the sanction that the White House might impose."

{At the hearing on the Motion, Defendants argued that an adequate standard relating to the revocation of Plaintiffs' hard passes had been promulgated because the public is generally on notice that disclosure of classified information is unlawful. The Court is doubtful that the laws governing the retention, sharing, or mishandling of classified information provided Plaintiffs the sort of notice that satisfies Karem for several reasons, but especially given the lack of precedent for applying those laws to reporters. Moreover, just as the record lacks factual support for Defendants' contention that the revocation of Plaintiffs' hard passes will in fact protect national security (as discussed below), the record also lacks factual support for Defendants' contention that Plaintiffs violated these statutes, at least at this stage.} …

[And] nothing in the record that predates this suit suggests that the revocation of Plaintiffs' hard passes was motivated by national security concerns. Certainly, that is not what President Trump said when he announced that he was "banning" Plaintiffs from the White House—instead, he focused on the alleged lack of truthfulness and negativity of Plaintiffs' reporting. And even the justifications provided to Plaintiffs after this case was filed are ambiguous about the true purpose of the revocations: while Defendants' letters to Plaintiffs mention national security concerns, they purport to identify reporting that "threatened national security and/or spread falsehoods," leaving open the possibility that all the stories fall into the later bucket, rather than the former….

[T]he record [also] lacks factual support for Defendants' contention that the revocation of Plaintiffs' hard passes will in fact protect national security or that national security will be endangered if the Court orders their passes reinstated while this litigation proceeds. Defendants offer no declarations or other support—classified or unclassified—explaining how any of the reporting they identified in their letters to Plaintiffs damaged the national security…. And supplemental declarations filed by Plaintiffs show that, in most cases, the reporters who authored the stories Defendants identify in their letters did not even hold hard passes. In the remaining cases, Defendants afford no reason to believe that the reporter's possession of the hard pass was integral to the stories identified….

For the First Amendment analysis (which the court didn't have to reach given its decision on the Due Process Clause), see this post.

Ted Boutrous, Katie Townsend, Patrick J. Fuster, Connor S. Sullivan, and Connor P. Mui  (Gibson, Dunn & Crutcher LLP) represent the media.

The post TRO Issued Ordering Reinstatement of CNN, MS NOW, and Politico White House Access appeared first on Reason Magazine.

J. Ann Selzer … conducted political polls in Iowa for nearly four decades. Three days before the 2024 general election, the Des Moines Register … published a Selzer poll showing Kamala Harris leading Donald Trump in Iowa and Christina Bohannan leading Mariannette Miller-Meeks in Iowa's First Congressional District. The poll proved wrong.

This case arises from that error. Donald J. Trump, Mariannette Miller-Meeks, and Bradley Zaun … sue in their private capacities. The Petition pleads a violation of the Iowa Consumer Fraud Act, fraudulent misrepresentation, and negligent misrepresentation, and asks the Court to enjoin the publication of any further deceptive polls. Both Defendants have moved to dismiss….

At its core, the Plaintiffs' Petition seeks to stretch both Iowa statutory and common law beyond their current bounds, turning speech that enjoys the highest category of First Amendment protection into a liability. After considering the parties' arguments, the Court must conclude that the protection is too great and the reach is too far….

[F]alsity alone does not create a category of unprotected speech. The Supreme Court has never recognized that false statements by themselves are not entitled to First Amendment protection, and it refused to do so when squarely presented with the opportunity. The Eighth Circuit held that even knowingly false campaign speech is not excluded from the Amendment's protection….

With a limited number of exceptions to the First Amendment protection, the Plaintiff must proceed under the fraud exception. The speech, however, must meet what the exception demands…. The fraud exception is narrow, and the proof requirements for a fraud claim exist precisely to safeguard protected speech. A false statement alone does not produce liability. Rather, the constitutional exception involves a false claim made to secure money or other valuable consideration….

1. The Iowa Poll Was Not a Provably False Statement of Fact.

A poll is simply an estimate…. It is based on a known methodology, and concerns an event that has not yet happened. Things of that nature are not the sort of things that can be said to be true or false in the manner required by the fraud exception. Opinion polls of random samples of voters are snapshots with margins of error, and campaigns are dynamic. A statement of conjecture about a future state of affairs is not provably false, even when the speaker is alleged to have known better….

2. No Representation Was Made to Plaintiffs, and No Plaintiff Parted with Anything in Reliance …

No Plaintiff pleads that J. Ann Selzer or Selzer & Company communicated with him or her, solicited anything from him or her, or had any relationship with any Plaintiff, arising out of contract or otherwise. No Plaintiff pleads that he or she purchased the Iowa Poll, subscribed to the Register because of the Poll, or gave anything of value to any Defendant because of the Poll. Plaintiffs merely plead that false statements were published to the public and that bad things ensued. Whatever that may be, that is not fraud….

The plaintiffs' answer was that they had actually suffered damages, including campaign expenditures to offset the Iowa Poll, and that this made their case different from U.S. v. Alvarez (2012), where the false statements gained the speaker nothing. The answer confuses two different requirements. That a plaintiff was harmed does not establish that the speech was used to obtain money or property from him. Alvarez itself makes the distinction, explaining that to permit liability for false speech absent any evidence that the speech was used to gain a material advantage would confer a censorial power unprecedented in the Court's cases and in our constitutional tradition. Plaintiffs allege consequences. They do not allege a transaction….

[T]he Iowa Poll and its reporting are fully protected political speech, and the Petition does not allege the elements that would place that speech within the fraud exception. The First Amendment bars [all the claims].

Second, and independently, the Petition states no claim under Iowa law. Count I [violation of the Iowa Consumer Fraud Act] alleges no prohibited act in connection with the advertisement, sale, or lease of consumer merchandise, no ascertainable loss of money or property, and no reliance. Count II [fraudulent misrepresentation] alleges no representation made to induce any Plaintiff to act and no act taken in reliance on the truth of the polls. Count III [negligent misrepresentation] alleges no duty running from a pollster or a newspaper to a candidate. Either ground would require the same result on its own.

Robert Corn-Revere and Conor Fitzpatrick (FIRE) represent Selzer.

The post President Trump's Lawsuit Against Iowa Pollster Ann Selzer Thrown Out appeared first on Reason Magazine.

Yesterday, in Michigan v. BP, a federal district court in Michigan dismissed the state's ambitious antitrust suit against fossil fuel companies alleging that they had conspired to suppress alternative energy sources resulting, among other things, in higher prices for Michigan consumers. While the same court had previously rejected the Trump Administration's attempt to preempt Michigan's suit, once confronted with the merits of the suit it found Michigan's claims wanting.

Both decisions seem correct to me. There was no legal basis upon which to prevent Michigan from filing suit against fossil fuel companies, but the suit that Michigan ultimately filed deserved to fail on its own terms. Michigan's theory was clever, but perhaps too clever to survive any meaningful legal scrutiny. As the Court explained, "Michigan seeks an antitrust remedy for many harms that do not qualify as
antitrust injuries," and that's not something the antitrust laws allow.

Here is a summary from yesterday's decision:

Defendants BP, Chevron, Exxon, and Shell (collectively, the Fossil Fuel Defendants) are four of the largest energy companies in the world. Defendant American Petroleum Institute (API) is the energy industry's largest trade association. The People of the State of Michigan (Michigan) filed this antitrust action alleging that in the 1970s, the Fossil Fuel Defendants realized that renewable energies would replace fossil fuels under normal market conditions. So, Michigan claims, the Fossil Fuel Defendants agreed, through API, to suppress renewable energies to maintain supra-competitive prices in the transportation and primary energy markets. According to Michigan, this conspiracy manifested itself in many ways, from suppressing renewable energy technology to hacking nonprofit climate activism organizations. And the conspiracy allegedly culminated in many harms to Michigan and its residents: among others, overpriced energy, a lack of options in the energy market, increased insurance premiums for households and depressing home values, and increased costs to implement measures mitigating the negative externalities of fossil fuel use. Michigan asks for treble damages for these injuries and an injunction to prevent future injuries. Michigan additionally requests the Court to impose civil penalties on Defendants and order them to disgorge the profits they earned from the alleged conspiracy.

Now pending before the Court are Defendants' Joint Motion to Dismiss (ECF No. 30) and API's Motion to Dismiss (ECF No. 32). The Court concludes that even if Michigan has adequately pled a conspiracy, the antitrust laws protect against none of the injuries for which Michigan seeks a remedy, except for overcharges for energy. Moreover, the distance is too great between the alleged conspiracy and Michigan's and its residents' overcharges to find that the conspiracy proximately caused the overcharges. The Court therefore holds that Michigan lacks antitrust standing to pursue its federal antitrust claims.

And from later in the opinion:

Michigan has alleged just one antitrust injury—overcharges for transportation and primary energy—and Illinois Brick bars Michigan from recovering damages as indirect purchasers under federal law. Nor can Michigan recover damages for the direct purchases it and its residents made from Defendants or enjoin them from continuing any alleged conspiracy because Michigan fails to plausibly plead that this conspiracy proximately caused and continues to cause overcharges. Because Michigan lacks antitrust standing to pursue any remedy under federal antitrust law, the Court dismisses Count I in Michigan's Complaint for failure to state a claim for relief

And having dismissed the federal claim (with prejudice), the court declined to exercise supplemental jurisdiction over Michigan's state-law claims.

It is worth noting that Michigan's claim in this suit is quite distinct from the claims made in various tort suits filed by state and local governments against fossil fuel companies, and this decision does not implicate or address the issues before the U.S. Supreme Court later this month in Suncor Energy v. Boulder County. For my posts on the Suncor case, see here.

The post District Court Dismisses Michigan's Hail Mary Antitrust Suit Against Fossil Fuel Companies appeared first on Reason Magazine.

Since at least in or about 2024, a network of individuals working for the intelligence services of the Russian Federation (the "RIS Network") has conspired to conduct and conducted attacks and murder around the world, including within the United States. The RIS Network has, among other things, endeavored to surveil and murder Russian dissidents residing in both Europe and the United States; established a criminal network that has committed and attempted to commit acts of terrorism against civilian and military infrastructure in European countries that are aligned, or perceived to be aligned, with Ukraine; and sought to recruit, and recruited, individuals from and within the United States and elsewhere to carry out these acts.

This included allegedly trying to hire a contract killer for $40,000, to "murder a prominent Russian dissident they believed to be residing in the United States." You can also see more in the Justice Department press release on the matter.

The post Indictment Alleges Russia Tried to Arrange Murders of Russian Dissidents in the U.S. and Europe appeared first on Reason Magazine.

The Smithsonian Institution has been in the news. President Trump wants to place a "colossus" George Washington statute outside the National Museum of American History, as well as signs warning that the content inside the museum is biased. On the flip side, the Secretary of the Smithsonian is stepping down, and the institution bypassed Congress to build a new Latino American museum. Relatedly, the Smithsonian spent years and untold amounts of money to test the DNA in strands of Thomas Jefferson's hair to determine whether he in fact had children with Sally Hemmings.

The Smithsonian is not going to make it through the current fight. The Chief Justice may think he can smooth things over with press releases and surrogate statements. It won't work. My proposal in Civitas Outlook: The Smithsonian should declare its independence from the Federal Government.

Here is the introduction:

The Smithsonian Institution is a paradox. It simultaneously exists inside and outside the federal government. The nineteen museums and zoo are funded mostly by Congress but also receive private donations. The governing Board of Regents includes a mix of public officials and private citizens. Despite this commingled status, the Smithsonian Institute has long maintained its independence from the federal government. Historically, few conflicts arose, as these world-class museums appealed to Americans across the political spectrum. But in recent years, conservatives have been left fuming as the Smithsonian now preaches progressive orthodoxies on race, gender, and politics. 

Even as President Trump asserts further control of the museums, the Smithsonian Institution is urged to push back. The group seems to be bypassing Congress to construct a new museum for Latino Americans. This is not a fight the Smithsonian can win. If the Smithsonian truly seeks actual independence, there is only one path forward: formal separation from the federal government. And if the Smithsonian wants the benefits of government funding but not the burdens of government control, Congress should cut the Smithsonian loose.

And, I propose that Justice Breyer can step in to right the ship through the stormy waters:

Congress should involuntarily spin off the Smithsonian to a private entity. The new non-profit can maintain whatever land and assets it has, and federal appropriations would wind down over a period of time. Current government officials would roll off the board. Perhaps retired Justice Stephen Breyer, who has expertise in architecture, could serve as interim Chancellor. Indeed, freeing the institution from federal control could lead to innovation. It might make sense to separate the nineteen museums and the national zoo into separate entities. Some donors might be willing to support the panda exhibit, and other donors would support exhibits about stamp collecting. There is no real reason that all of these entities have to be subsumed by a unified sclerotic bureaucracy. 

The Smithsonian Institution stands at an inflection point. The trust earned since the nineteenth century has been squandered away. If Chief Justice Roberts truly believes in the independence of the Smithsonian, his greatest act of selfless institutionalism would be to let his own position go.

Or, the way for the Smithsonian to stop being dependent on the federal government is to stop being dependent on the federal government.

The post New In <i>Civitas</i>: The Smithsonian Should Be Privatized appeared first on Reason Magazine.

I've always been fascinating by Dames & Moore v. Regan. Justice Rehnquist, the future Chief Justice, writes a landmark separation of powers ruling. And at the time his law clerk was John Roberts, also the future Chief Justice. I've explored before how Roberts contributed little or nothing to that written opinion. Back then, the Justices handled emergency docket cases on their own.

In the tariffs case, Roberts basically implored counsel to not even cite the case.

CHIEF JUSTICE ROBERTS: Counsel, you --you've already mentioned Dames & Moore three --three times, which surprises me a little because the Court in Dames & Moore went out of its way to say that it was issuing a very narrow decision it pretty much expected to apply only in this case.

But how did Rehnquist see the case? I recently stumbled upon something on point.

In 1984, then-Associate Justice Rehnquist visited my law school, the South Texas College of Law. He presided over the ribbon-cutting for the dedication of the new tower (where my office is located).

Rehnquist then delivered a speech on oral advocacy, that was published in the South Texas Law Review. Rehnquist also walks through the importance of oral arguments. There are many citations to Robert Jackson, for whom Rehnquist clerked--and had a somewhat complicated relationship. Rehnquist also contrasts the modern practice of short argument with the glory days of Daniel Webster where cases would be argued for days.

I was especially struck about this comparison Rehnquist drew between the oral argument in Gibbons v. Ogden and the recent case of Dames & Moore v. Regan.

The oral argument in the case was opened by Daniel Webster, who began at eleven o'clock in the morning of February 4, 1824. Webster argued for two-and-one-half hours in an "excessively crowded" courtroom. 9 Thomas J. Oakley, counsel for Ogden, followed and spoke for an hour on February 4th, and for the entire Court day of February 5th. Thomas Emmet spent the whole of the third day, February 6th, and two hours of February 7th, delivering his argument. The case was finally closed on the 9th by William Wirt for the appellant Gibbons. Five full Court days-twenty hours at four hours each day-were devoted to the argument of this important case.

By contrast, in Dames & Moore v. Regan,"a similarly important commercial case in which our Court granted certiorari before judgment a few Terms ago, two hours were allotted for oral argument. Without implying that one practice was good and the other bad, let us simply note for the moment that, in two cases of comparable importance, the time for oral argument was reduced from twenty hours to two.

It is striking that Rehnquist thought Gibbons and Dames & Moore were "similarly important" and of "comparable importance." I'm not sure that anyone at the time would have agreed with him. Surely no one today would draw that comparison. Gibbons remains the leading Commerce Clause case two centuries later. Chief Justice Marshall's decision was canonical. Dames & Moore was certainly important at the time, and resolved a serious conflict with Iran. But it but never pulled ahead of Justice Jackson's Youngstown concurrence. Indeed, Randy and I decided to remove Dames & Moore from the Fifth Edition of our casebook.

Still, this little vignette from my home institution reflects how perceptions often change over time.

I think the Justices often have a favorite decision. I recall Justice Scalia describing Crawford v. Washington, the Confrontation Clause opinion, as his most important ruling. Later, I think he moved District of Columbia v. Heller to the top of that list.

By contrast, Justice Thomas does not pick out a single opinion. I am making my way through Ted Cruz's excellent new book about Justice Thomas. Thomas relates that he doesn't much think about his opinions after he writes them:

During our final interview in December of 2025, I asked Justice Thomas whether he ever thinks about future generations when writing his opinions. Once again, he insisted that he doesn't. He simply looks at the facts in front of him, reviews the relevant law, and writes his conclusions in a way that the average American can understand. Then he moves on. His opinions, he insists, are not written in the way essays, speeches, and books are written.

I'll have more to say about Cruz's insightful book soon.

The post Chief Justice Rehnquist and Chief Justice Roberts Did Not See Eye-to-Eye About <i>Dames & Moore v. Regan</i> appeared first on Reason Magazine.

Today, the Montreal Economic Institute published my paper on "The Legal Battle Over Trump's Tariffs: Implications for Canada." This overview of the legal weaknesses of Trump's tariffs and what can be done to curb future abuses of the same kind, may also be of use to Americans interested in these issues. Here is an excerpt:

Since returning to power in January 2025, President Donald Trump has sought to impose massive tariffs on imports from Canada, as well as numerous other trading partners. This policy is simultaneously harmful, unjust, illegal, and damaging to the US, Canadian, and world economies. It is also needlessly poisoning US relations with Canada and other crucial allies.

Trump's initial tariffs were invalidated by the US Supreme Court, and more recent ones may well also be struck down. But even if invalidated by courts, illegal tariffs and associated economic uncertainty may still persist for many months. Canada would do well to recognize that these US tariffs are unpopular and rest on shaky legal ground, and try to capitalize on the resulting opportunities.

In February 2025, President Trump tried to use the International Emergency Economic Powers Act of 1977 (IEEPA) to impose 25% tariffs on Canada, ostensibly to combat the smuggling of fentanyl across the US-Canadian border. On April 2, 2025, he invoked the same law to impose general 10% tariffs against most US trading partners around the world, plus additional massive tariffs against several dozen nations, supposedly to combat trade deficits. After extensive litigation, the US Supreme Court eventually invalidated these tariffs, in a case I helped litigate on behalf of five small businesses (eventually consolidated with two other cases).

The Supreme Court held that the IEEPA does not authorize the imposition of tariffs at all and emphasized that under the US Constitution, tariffs are a congressional power, not an executive one. The Court also held that the president is not entitled to unlimited power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time."(2) Three Supreme Court justices and two lower court rulings also concluded the IEEPA tariffs run afoul of the "major questions doctrine," which requires Congress to speak clearly when authorizing the executive to make "decisions of vast economic and political significance."

Immediately after the Supreme Court's ruling, the president tried to use Section 122 of the Trade Act of 1974 to impose similar 10% tariffs on imports from around the world (though Canadian imports were largely exempted). The US Court of International Trade rightly invalidated these tariffs on the grounds that Section 122 can only be used in response to a balance-of-payments crisis of a kind that generally cannot occur under a flexible exchange rate regime, and that Trump's interpretation of Section 122 would, if accepted, create an unconstitutional delegation of legislative power to the executive…. The case is currently on appeal….

Trump has also sought to use Section 301 of the 1974 Act to impose 10-12.5% tariffs on sixty US trading partners, including Canada, the European Union and many more. These tariffs were instituted on the pretext that all these countries allow the importation of goods made with "forced labor" in ways that somehow burden US exports…..

In this case, the "forced labor" investigation is a blatant sham designed to reach a predetermined conclusion; nor is there any real proof that the policies in question meaningfully burden US exports. In addition, the administration's interpretation of Section 301 violates both major questions of doctrine and constitutional constraints on the delegation of legislative power to the executive; Trump is trying to use Section 301 to claim the virtually unlimited tariff power the Supreme Court rejected in the IEEPA case…..

Three lawsuits challenging the Section 301 tariffs have already been filed…. The Court of International Trade is likely to make a decision within the next few weeks. Here, too, there is a significant likelihood the courts will ultimately rule against the president.

Most recently, Trump has tried to use Section 338 of the notorious 1930 Smoot-Hawley tariff act (which severely exacerbated the Great Depression) to try to impose 50% tariffs on various Canadian imports. Section 338 has never been used. Trump's attempt to exhume it may well also be struck down in court, because Section 338 has been superseded by later laws and because his invocation of it does not meet the provision's own requirements. In addition, his broad interpretation of Section 338 is subject to challenge based on the major questions and nondelegation doctrines; the latter constrains delegations of legislative power to the executive. At the time of writing, no legal challenges to the Section 338 tariffs have yet been filed, but it is likely some will be filed soon, by state governments, importers, or others….

Despite their unpopularity and the likelihood of defeat in court, the tariffs could still inflict harm and create uncertainty lasting for many months. It can take a long time for courts to resolve these cases…. Moreover, if the courts fail to block the tariffs until appellate litigation concludes, billions of dollars of illegal tariffs might be collected in the meantime, causing extensive economic damage. Trump used the IEEPA tariffs to collect some US$166 billion in illegal payments before the Supreme Court finally stopped him; even now, not all of the illegally collected funds have yet been refunded. But the courts might reduce such damage by refusing to stay early rulings against the new illegal tariffs.,,,

In addition, Canada should work with Americans who oppose the tariffs in order to enact new legislation—possibly including a new CUSMA trade agreement—that clearly blocks the unilateral imposition of future tariffs by the executive, so that no future president can repeat Trump's harmful actions. The new agreement should also require that any court decisions striking down illegal tariffs take immediate effect and not be stayed until appellate litigation concludes, which would limit the harmful impact of illegal tariffs. Such reforms almost certainly will not happen while Trump is in office…. But he has only about two years to go, much of which time is likely to be a "lame duck" period.

The post My New Montreal Economic Institute Paper on "The Legal Battle Over Trump's Tariffs: Implications for Canada" appeared first on Reason Magazine.

In the beginning, there was the merits docket--the slow, tedious certiorari process that can take a year or more to resolve a case. But that was too slow. Then there was the emergency docket--or is it the interim docket?--for cases that need expedited attention. But that was too fast. The rocket docket became a hybrid, where emergency cases were argued in an expedited fashion. That may have been just right for certain cases, but in other conflicts, something different was called for.

Welcome to the lightning docket. Now, for the third time in the span of a few weeks, Circuit Justice Kavanaugh has been drawn into Missouri's redistricting fight. And twice, so far, he was swiftly ruled against allowing the Republican map to go into effect. Indeed, as I noted, he ruled so quickly that he couldn't have possibly even read the briefs.

Last night, the intervenors filed an emergency application around 11:50 PM. Justice Kavanaugh almost immediately called for a response, due today at 2:00 PM. Does anyone think a word of Missouri's brief will matter? Almost immediately, expect an immediate stay.

Google tells me it takes a ray of light about 4 milliseconds to travel from the Supreme Court of the United States to the Thomas F. Eagleton U.S. Courthouse in St. Louis. I suspect it took Justice Kavanaugh even less time than that to settle this matter. The Circuit Justice, like Zeus on Mount Olympus, instantly strikes down wayward lower courts with a bolt of lightning.

Fortunately, the St. Louis Cardinals are out of town today, as that bolt could explode the lights at nearby Busch Stadium. Justice Kavanaugh would be just like Roy Hobbs in The Natural. The writ of mandamus is Wonderboy.

This is the lightning docket, where standing and the merits are irrelevant. All that matters is ending the game.

Thoughts and prayers to the lawyers who had to stay up all night writing a brief that will never be read.

The post The Lightning Docket appeared first on Reason Magazine.

From Judge Mary Kay Costello (E.D. Pa.) Friday in McCausland v. Penn. State Univ.:

Plaintiff Jonathan McCausland is a former graduate student and teaching assistant ("TA") at Penn State University …. In 2024, Jeanine Staples-Dixon, a tenured professor at Penn State, published a book that disclosed Plaintiff's childhood sexual abuse….

The facts, as alleged by plaintiff:

In 2018, Plaintiff began working as a TA for Professor Staples-Dixon's Philadelphia Urban Seminar at Penn State. This yearly seminar was held in the summer for a small number of students. As part of the course, Staples-Dixon instructed her TAs to share their "gender stories." She explained that extreme vulnerability "was an essential part of the pedagogical value of the seminar," and she wanted her TAs to model that vulnerability for her students.

To facilitate open and honest communication among seminar participants, every student was required to complete several intake forms pertaining to confidentiality. The forms stated that all information shared in class would be confidential, would not be shared outside the classroom without permission, and would be anonymized in the event of publication. Neither Staples-Dixon nor the TAs signed the confidentiality forms.

During the summer 2018 seminar, Plaintiff shared a gender story relating to how competition and athletics shaped his ideas of masculinity. However, Plaintiff felt that this story was "insufficiently vulnerable when compared to the highly personal gender stories share by other" TAs. During a planning session for the 2019 seminar, Plaintiff shared with Staples-Dixon that he had been sexually abused as a child by older boys who lived in his neighborhood. Staples-Dixon encouraged Plaintiff to share his story with seminar participants because it revealed the exact kind of extreme vulnerability that she wanted to discuss in the course.

Trusting the norms of confidentiality in the seminar and the agreements signed by every student, Plaintiff agreed. With Staples-Dixon's encouragement, Plaintiff continued to share his sexual abuse with seminar participants during the 2020, 2021, and 2022 sessions. Plaintiff graduated from Penn State in 2022.

In December 2024, Staples-Dixon published "Extraordinary Pedagogies: An Endarkened Feminist Approach to Revolutionizing Teacher Consciousness" through Teachers College Press. She based the book on the research she conducted during the seminar. The book included the following passage recounting Plaintiff's sexual abuse:

Dr. JD McCausland talked about the sexual molestation he endured with his childhood best friend, perpetuated by a group of older, bigger teenage boys. He talked about the confusion, anger fear, and stress he endured via the abuse and how he felt tortured in his gender identity and sexual orientation until he generated the strength to claim his identify for himself as a straight, cis man. Telling these stories means locating your power. This is a feat, especially when one's gender identity, expression, and sexual orientation are crippled and corrupted by sexism, misogyny, and misogynoir….

When Plaintiff learned of the book in late February 2025, he felt betrayed. Staples-Dixon never sought Plaintiff's consent to publish his story, and he was particularly shocked by the fact that Staples-Dixon referenced him by name and professional title.

The court allowed plaintiff's disclosure of private facts claim to go forward (the Pennsylvania term for the tort is "publicity given to private life"):

"To state a claim for publicity given to private life, a plaintiff must allege that the matter publicized is '(1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public.'" …

"A private fact is one that has not already been made public." A fact is made public "by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." However, "disclosures to a small number of persons do not" make a fact public….

Here, Plaintiff's disclosures to seminar participants were not substantially certain to make his experiences public knowledge. Plaintiff shared his sexual abuse with students during the seminar from 2019 to 2022. Each student completed an intake form stating that information shared in the course was confidential and would not be shared outside the classroom without permission.

Although Staples-Dixon emphasizes that neither she nor the other TAs signed that form, Plaintiff is entitled to an inference that the form and sensitive subject matter discussed in the seminar created an expectation of confidentiality. Indeed, even if Staples-Dixon and the other TAs could have discussed that information outside of the seminar, Plaintiff's disclosure to them did not make it substantially certain that his past abuse would become public knowledge. Given this context, Plaintiff has plausibly alleged that his sexual abuse was a private fact despite his disclosures to seminar participants….

The court also allowed plaintiff's intentional infliction of emotional distress claim to go forward:

"'Liability on an intentional infliction of emotional distress claim has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" …

Here, a reasonable fact finder could determine that Staples-Dixon's publication of Plaintiff's sexual abuse was extreme and outrageous. She published one of "the most private and personal aspects of Plaintiff's life." And Plaintiff shared with Staples-Dixon and other seminar participants that "this abuse had caused him lifelong struggles related to trust, relationships, intimacy, and identity." In fact, Plaintiff alleged that Staples-Dixon encouraged him to share his story precisely for that reason—"to model the extreme vulnerability called for by the Seminar's pedagogy." Therefore, like the dissemination of the sensitive records and intimate photographs in Hernandez, Staples-Dixon disclosure could reasonably be considered extreme and outrageous….

Plaintiff [also] alleged sufficient facts to support an inference that Staples-Dixon knew Plaintiff was particularly sensitive about his childhood abuse, yet she published that information anyway. Plaintiff alleged that he told Staples-Dixon that his abuse "caused him lifelong struggles related to trust, relationships, intimacy, and identity." Indeed, Staples-Dixon encouraged Plaintiff to share his "highly personal gender stor[y]" for that reason. When Plaintiff shared his story of abuse, Staples-Dixon stated that his story exemplified "the extreme vulnerability called for by the Seminar's pedagogy."

Despite this knowledge, Staples-Dixon proceeded to publish Plaintiff's abuse story and identify him by name. Given her knowledge of Plaintiff's emotional sensitivity, Staples-Dixon was, or reasonably should have been, substantially certain that her publication would cause Plaintiff severe emotional distress….

For related reasons, the court also allowed plaintiff to seek punitive damages against Staples-Dixon.

But the court held that Penn State wasn't directly liable for disclosure of private facts based on its own behavior:

Penn State publicized Staples-Dixon's book with a forum event in February 2025. Its online invitation encouraged students to join "a conversation about Professor of Education Jeanine Staples-Dixon's latest book." Penn State's website also noted in Staples-Dixon's faculty biography that she was "currently writing two books," including the book at issue….

Penn State's conduct was not substantially certain to make Plaintiff's abuse public knowledge. First, Penn State did not publish Staples-Dixon's book. Teachers College Press did. Plaintiff did not make any allegations to the contrary. Plaintiff speculates that Penn State may have approved the book for publication, but that is not enough to defeat a motion to dismiss…. "Factual allegations must be enough to raise a right to relief above the speculative level." …

Second, Penn State's promotion of Staples-Dixon's book did not communicate the content of the book….The [online] invitation states only that the event will include "a conversation about … Staples-Dixon's latest book." Nothing in this communication made it substantially certain that Plaintiff's sexual abuse would become public knowledge. The invitation includes no content from the book or any reference to Plaintiff. The same analysis applies with respect to Plaintiff's argument that Staples-Dixon's faculty biography constitutes publication because that biography merely states that she is "currently writing two books." Furthermore, even if Penn State's promotion had publicized Plaintiff's abuse, Staples-Dixon's book had already disclosed that information to the public.

For similar reasons, the court held that Penn State wasn't liable for intentional infliction of emotional distress. And the court held that Penn State couldn't be liable for either tort on an employer liability (respondeat superior) theory:

"[U]nder Pennsylvania law, an employer generally cannot be held liable for the intentional torts of its employees." To hold an employer vicariously liable for an employee's intentional tort, the employee's act must have occurred within the course and scope of employment. "[C]onduct is within the scope of employment if, but only if: (a) it is the kind [the employee] is employed to perform; (b) it occurs substantially within the authorized time and space limits[; and] (c) it is actuated, at least in part, by a purpose to serve the master."

Here, Plaintiff alleged no facts showing that Staples-Dixon's publication of the book was within the scope of her employment. The only allegation related to the nature of the relationship between Defendants is that Staples-Dixon is a tenured professor at Penn State where she taught the summer seminar…. In any event, even if publication of research was part of Staples-Dixon's job in general, Plaintiff failed to plausibly allege that the publication of this book in particular was within the scope of her employment.

Moreover, Plaintiff alleged that Staples-Dixon motivation in publishing the book was personal. The only motivation attributed to Staples-Dixon was that she published the book "for commercial gain." Tortious conduct committed for personal reasons is not within the scope of employment. Staples-Dixon's "commercial gain" from publishing the book is a personal pecuniary interest. Beyond these allegations, Plaintiff alleged no facts to show that Staples-Dixon's writing and publishing of the book was "actuated, at least in part, by a purpose to serve" Penn State. Therefore, the Court will grant Penn State's motion to dismiss Plaintiff's vicarious liability claims without prejudice.

Lane R. Jubb Jr. and Andrew Warshawer (The Beasley Firm) represent plaintiff. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post Privacy Lawsuit Over Prof's Book That Mentions Former TA's Childhood Sexual Abuse Can Go Forward appeared first on Reason Magazine.

In 2018, URI recruited and hired Dr. Gifty Ako-Adounvo, as Vice Provost for Global Initiatives and Senior International Officer. Dr. Ako-Adounvo asked for URI's help to locate employment for Fosu, her domestic partner, and when no outside employment options were found, URI appointed him as a visiting professor for the 2019 spring semester. URI appointed Fosu to a faculty of practice to teach in the Political Science Department for the 2019-2020 academic year. A faculty of practice is a one-year appointment and a non-tenure position.

Fosu did not have the academic qualifications to teach core curriculum classes in the Political Science Department. The Chair of the Political Science Department, Professor Marc Hutchison, decided that Fosu could teach elective courses as a faculty of practice. Fosu was to teach a course on the Supreme Court and constitutional law, and he also proposed a course on advocacy, which was approved. During the 2019-2020 academic year, Fosu taught elective undergraduate courses on constitutional law and advocacy and a graduate course….

[2.] The court discussed various bases for Fosu's appointment not being renewed; here's an excerpt of that, though there were other things happening as well. Note that, "[b]ecause Fosu has not responded to defendants' motion [for summary judgment]," the court "accept[ed] as uncontested defendants' recitation of the material facts":

On October 26, 2020, Fosu sent an email titled "Declaration of Diversity" to URI President Dooley, along with many others including members of the URI faculty and staff, URI students, law enforcement officials, and government officials. Fosu again targeted the Chief Diversity Officer, Mary Almandrez, and criticized the hiring process involving Dr. Sylvia Spears and Dr. Harry Alston. He accused the URI faculty and staff of racism, collusion, unethical conduct, and violations of the law.

The email included a boxed warning that "all parties mentioned in this letter and involved in the Dr. Harry Alston and Dr. Sylvia Spears interview process must not shred or destroy any documents, must not delete any emails or electronic messages from November 1, 2019 to present." Fosu also asserted that he and others invoked their Fourth Amendment rights.

In the email, Fosu notified President Dooley that Fosu's private corporation, Diversity Think Tank, was "headquartered" at URI and that it was the corporation's goal "to directly target and expose URI's indefensible and offensively prejudicial and discriminatory policies and the people who perpetuate intentional racism and normalized racist inequities through the machinations of white supremacy." …

[Fosu attached a] "Declaration of Diversity" that purported to be issued by "organized URI students." The Declaration began with a statement that "We as organized URI student, hold these facts to be self-evident, that there is a deliberate and racist dehumanizing exclusion of highly qualified African-Americans/Blacks, Latinos/Hispanics and Native Americans from positions of senior leadership and other positions throughout the university, including Administrative Staff, Deans, Department Chairs, Faculty, Functional Staff and Students." …

The Declaration included 46 "complaints and demands," one of which said:

We students will create a White-list of all those white professors who define and list themselves as diversity initiative conveners, race experts and researchers while they are silent and benefit from white supremacy and racism at URI, self-evident by the fact that no African-American with an ancestry to slavery and no Latino has been hired to a senior leadership position since 1892—and NOT ONE WHITE FACULTY member has expressed a problem with that fact, and the glaring fact that there are NO BLACK FACULTY members in the Criminal Justice Department and only a couple at the Harrington School. You white professors do not need research to find out about systemic racism at URI—you are part and parcel of the creation and maintenance of systemic racism at URI though your self-serving policies, unapologetic excuses, discriminatory behavior and your hegemonic culture of impunity. You should be ashamed of yourselves and we will help end this metastasized disease of racism. Your panel discussions about diversity and ethics should be our panel discussions about diversity and ethics, and we pick who should be on these panels.

"The Declaration was signed by four URI students who were identified as Diversity Think Tank trustees, non-student trustees of Diversity Think Tank, and Fosu."

This unsurprisingly led to tensions with other faculty members:

Several of the faculty expressed concern to the department chair, Professor Hutchison, about the email and the Declaration of Diversity….. [Also, during a] Political Science Department[] meeting[,] … Fosu talked over other faculty and talked about bringing in his army of lawyers. The faculty felt that if they disagreed with Fosu, he labeled them racist…. [In a follow-up e-mail, he] criticized his treatment during the meeting and asserted that the faculty had to stand against racism or they supported racism. He also called out individual faculty members to refute [perhaps meaning "recant"? -EV] their positions during the department meeting. To one female faculty member, Fosu wrote:

[R]acism and discrimination are not complex or complicated matters to understand as you mentioned and implied in your job candidate example…. Maybe you should reflect and recognize that the highly qualified Black person who interviewed as your search committee's first choice, likely declined the job because s/he wanted to avoid a perceived impending racial conflict and marginalization after encountering the reality of our intensely all-white environment…. Step out of your personal defensive mode nurtured naturally by white privilege and empathize with Black candidates who walk on this campus…. I experienced that subtle disrespect and suspicious questioning during our meeting on Friday.

In response to another faculty member's discussion during the meeting, Fosu wrote: "The main beneficiaries of Affirmative Action have been White women—not Black men and not Black women—cultural hegemony has been very successful at falsely convincing us that Blacks predominately benefit from Affirmative Action." Fosu further wrote that "[w]hat I was discussing with [a male faculty member] on a deeper level before I was interrupted by [the female faculty member] is that we cannot rely on an institution that has been systemically racist for 128 years to produce progressive policies that advance racial equity."

Hutchison testified in his deposition that Fosu's email caused distress in the department. Faculty were concerned that they would be publicly accused of being racist if they taught about race issues in class. Other faculty told Hutchison that the department could not talk with Fosu because he would not hear any point of view except his own. The targeted female faculty member told Hutchison that Fosu was creating a hostile work environment and bullying female colleagues….

[3.] There were also several student complaints; the court goes through the details, but here's one sample:

Vice President of Student Affairs Kathy Collins … summarized [one] student's report, as follows:

1. Declaration for Diversity was pre-written by Mr. Fosu and taken to class in September, 2020. Students were able to do edits and provide comments in a google doc. None of their comments and edits were accepted into the document. The student [I] spoke with has not "seen the document since September." When students asked if they could edit it, they were told, "no."
2. The petition that is up on change.org was circulated in class and students were told to sign at the start of a recent class. Students did not write the petition.
3. Multiple students have requested of Mr. Fosu to have their names removed from documents, emails, etc. They were informed by Mr. Fosu that their names could not be removed. He shared that they were "legally required to be named because" they "reviewed the document."

The student also shared:

• students are "very fearful about grades"
• students are "uncomfortable in class"—especially with the "misogyny"
• the student expressed that the class was full of "extreme radicalism"
• the student expressed that Mr. Fosu sees students as "collateral damage."

Student 4 then met with Hutchison, reporting that Fosu intimidated students into going along with the Declaration of Diversity. The student said that students were not allowed to have a voice.

Student 4 reported misogyny in Fosu's treatment of female students. Student 4 also reported that Fosu uses "inappropriate and crude language in class," which made Student 4 uncomfortable, and that they had received inappropriate emails and requests. In addition, the student said that Fosu cancelled classes without warning….

A bit more about Fosu's interactions with students:

In December of 2020 and continuing into January of 2021 four of the six URI students who signed the Declaration of Diversity as trustees of Fosu's Diversity Think Tank resigned from the Diversity Think Tank. The students asked Fosu to remove their names from all Diversity Think Tank materials. In their resignation emails, the students explained that they did not agree with Fosu's goals and actions and that he had sidelined the students' interests.

Fosu responded to the first student and everyone else on the email list in a long email with multiple references to the student as a white man and saying "[o]nly a person who is very privileged would make a false statement that I do not have the best interests of students." Fosu's response to the resignation of the other three students identified them by name, and, included URI community members beyond Diversity Think Tank. Fosu stated that he forgave the students for their "fabrications, ulterior motives and for the pusillanimity of [their] incoherent email."

He also said that that "this collective tantrum from you three, is because I shut down your childhood friend and frat brother [the first student to resign] … [and] [t]he next [he] has a difference of opinion or disagreement with any Black/African American man of my caliber he will know how to speak properly and disagree respectfully." At the end of January, another student resigned from the Diversity Think Tank referencing Fosu's responses as "accusatory, disagreeable behavior." …

[4.] The court concluded that the speech was unprotected under the First Amendment under the test applicable to government employee speech:

[Under Pickering v. Bd. of Ed. (1968)], the court balances "the value of an employee's speech—both the employee's own interests and the public's interest in the information the employee seeks to impart—against the employer's legitimate government interest in preventing unnecessary disruptions and inefficiencies in carrying out its public service mission." …

Fosu's interest in racism at URI … [and] his concerns about diversity in hiring and in the student body at URI are recognized public issues. Nevertheless, under the current rule in the First Circuit, "[s]peech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balancing." Fosu's emails and much of the Declaration of Diversity are insulting to Chief Diversity Officer Almandrez and others and include personal attacks and denigrating remarks about individuals and URI faculty and administration. Those communications generally are entitled to less weight for purposes of balancing interests.

On the other side of the balance, URI put Fuso on administrative leave because of his misconduct. Specifically,

coercion, intimidation, and retaliation toward students limiting their free pursuit of learning;

public expressions of hostility, harassment, and disrespectful and threatening behavior toward colleagues, and disrespect for opinions that are divergent from your own;

[and] disruption of departmental processes and overt efforts on your part to interfere with formally sanctioned university processes and procedures….

Fosu frequently was late to class and cancelled class. His students were intimidated by him and afraid of retribution if they did not agree with and participate in his agenda and his company, the Diversity Think Tank. Faculty in the Political Science Department found him to be uninvolved and disruptive when he was involved. Fosu expressed misogynistic views that intimidated his students and faculty in his department….

Therefore, the balance of interests strongly favors defendants. As a result, Fosu has not demonstrated that his speech is entitled to First Amendment Protection….

Steven M. Richard represents URI.

The post Court Upholds Nonrenewal of URI Lecturer Who Circulated Combative "Declaration of Diversity," Allegedly Intimidated Students appeared first on Reason Magazine.

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While the D.C. Circuit has held that some areas of the White House grounds constitute a nonpublic forum, Sherrill v. Knight (D.C. Cir. 1977), that decision is wrong and should be overruled. But even under Sherrill, the President's actions must be sustained because the President has "compelling interest[s]" in enforcing minimum standards for bona fide journalists and safeguarding national security information…. [T]he President's actions were not retaliatory because the Government would have taken the same action anyway, notwithstanding Plaintiffs' speech criticizing the President—indeed, the President has not revoked access to other outlets that have equally criticized the President….

Sherrill v. Knight … held that because "White House press facilities hav[e] been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons." While Defendants acknowledge the D.C. Circuit's decision in Sherrill, that case was wrongly decided, and Defendants expressly reserve their right to argue so on appeal.

Access to the White House is a privilege, not a right. In Sherill, the D.C. Circuit emphasized that "[t]hese press facilities [were] perceived as being open to all bona fide Washington-based journalists[.]" The reality is much better described by the D.C. Circuit's more recent decision in AP v. Budowich (D.C. Cir. 2025). There, the court acknowledged that there are more journalists who wish to interview the President than he can accommodate; "[i]n deciding which journalists to speak with, the President may of course take into account their viewpoint." Accord Baltimore Sun Co. v. Ehrlich (4th Cir. 2006) (upholding State Governor's press directive that "no one in the Executive Department or Agencies" should speak with two named reporters because the "Governor's Press Office feels that currently both are failing to objectively report on any issue dealing with" that administration). As a result, the court concluded that at least for certain spaces, "the White House may consider journalists' viewpoints when deciding whether to grant access."

The same logic and standard should apply to access to White House grounds more generally. "Opening" the "White House" to some journalists should not "transform these spaces into nonpublic fora to which access must be granted on a viewpoint neutral basis." Indeed, there are currently a finite number of hard passes, and yet the White House briefing room and West Wing facilities can accommodate only so many reporters. Under the AP decision, this counsels against the conclusion that the White House is a nonpublic forum. See AP ("These spaces should not be classified as nonpublic fora because access to them is tightly controlled and highly selective…. When access to government property is very limited, considerations of viewpoint may be permissible.").

In short, there is no principled way of easily distinguishing between rooms that are a nonpublic forum and those that are no forum at all—particularly where the White House is not obligated to respond to any questions by reporters in the first place. See id. ("The AP's reporting on presidential events through electronic dissemination of news to editors or the public outside the White House is the only communicative activity at issue. But this activity could occur anywhere and therefore lacks the essential connection to the government space required to create even a nonpublic forum."). The reasoning of AP should properly control as to all parts of the White House complex.

Note that whatever one may think of the implications of AP's reasoning, it reaffirmed (citing Sherrill v. Knight (D.C. Cir. 1977)) that "When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint."

Back to President Trump's argument:

Yet even under Sherrill, Defendants' decision to deny Plaintiffs continued access to White House grounds complies with the First Amendment because they have at least two "compelling reasons," namely, enforcing minimum standards of professionalism for journalists and protecting classified information….

First, Defendants may lawfully deny access to Plaintiffs because the President has concluded they fail to satisfy the minimum requirements of professionalism. Indeed, the D.C. Circuit has acknowledged that the White House can set standards governing qualifications for journalistic access. Nothing about Sherrill is inconsistent with the President's judgment that reporters who publish classified and sensitive information fail to meet the Sherill standard.

Nor does Sherrill prevent the President from concluding that bona fide journalists would identify sources instead of relying on anonymous sources, commit to factual accuracy, and provide the White House an opportunity to comment. Cf. Sherrill (five times limiting ruling to "bona fide" journalists"). The President believes basic journalistic standards require calling, asking for comment, and providing a reasonable opportunity for a response. At a bare minimum, it is a significant violation of decorum to publish classified and sensitive national security information.

To be sure, the D.C. Circuit in Sherrill and Karem v. Trump (D.C. Cir. 2020) has held that advanced notice of prohibited conduct and of the consequences of noncompliance are required before a hard pass can be revoked. Defendants submit those holdings should be overruled, but in any event, the White House has satisfied those requirements by providing an explanation of the relevant standards, both generally and with respect to Plaintiffs conduct specifically. Here, the President's letters set out with specificity what is required and how Plaintiffs have failed to adhere to these standards. The letters point out with specificity examples of Plaintiffs' conduct that he determined fell below these standards. The letters also provide Plaintiffs with an opportunity to respond to these concerns and submit materials for the President's reconsideration….

Second, Plaintiffs' reporting gives rise to reasons to doubt their trustworthiness and, in fact, the President has determined that Plaintiffs have reported classified or sensitive information bearing on national security. Defendants have a compelling governmental interest in protecting such information. Indeed, the Supreme Court has recognized that the Constitution vests the President with the "authority to classify and control access to information bearing on national security." Ultimately, the responsibility and "authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief."

Here, as explained in the Letters, the President has found that Plaintiffs have engaged in a number of reporting incidents that have threatened national security. Indeed, multiple examples concern reports about the White House complex currently under construction. Cf. Nat'l Park Serv. v. Nat'l Tr. for Historic Pres. in the United States (2026) (weighing increased "risk of foreign actors 'gathering intelligence' on the project"). Such reporting directly raises national security concerns. Indeed, "[t]he release of such information is exactly the type of release that can cause harm to the national security."

Furthermore, such reporting incidents also divert resources of national security and other personnel. The "[p]ublication of sensitive security information" and even "misinformation about national security information" requires Defendants to "evaluate whether the leaked information is classified, the source of any leak, and the security implications of any such disclosure." The President therefore has a compelling interest in limiting access to White House grounds to organizations that do not pose such a risk to national security. Defendants "believe that the President's determination to revoke credentials for news outlets and reporters that have caused such interference with government functions would be effective in reducing the amount of information that is published that undermines national security."

The motion will be heard today (Wednesday) at 3:30 pm; presumably Judge Timothy Kelly will issue a decision fairly soon.

The post President Trump's Legal Argument in Support of Excluding CNN, MS NOW, and Politico from the White House appeared first on Reason Magazine.

• unconstitutional for the government to exclude press outlets based on viewpoint from spaces that have been broadly opened to the press, such as the main White House press briefing room but
• constitutional to do so as to spaces that aren't generally open to the press, such as interviews in the Oval Office.

The key precedent on this in AP v. Budowich (D.C. Cir. 2025), which upheld the exclusion of the AP from the Oval Office (because of AP's refusal to call the Gulf of Mexico "Gulf of America"), but reaffirmed (citing Sherrill v. Knight (D.C. Cir. 1977)) that

When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint.

I stand by this legal analysis, but wanted to pass along the White House's contrary argument that was posted yesterday:

Last week, President Donald J. Trump removed CNN, MS NOW, and Politico from the White House grounds after years of false reporting. The First Amendment protects their right to publish; it does not entitle them to a hard pass, briefing room seat, or place in the press pool.

Access changes are nothing new. What is new, however, is the sudden claim that it becomes sacred only when the outlets are friendly to the Radical Left. The rule was never "every outlet gets in." It was always "our side stays in."

For years, Democrat Administrations have restricted, punished, and locked out the press.

2009: The Obama White House branded Fox News as the "research arm" and "communications arm" of the Republican Party, barred it from a round of exclusive Sunday show interviews, instructed agencies to "skip" including it in pooled coverage, derided it as "really not news," and undertook an all-out effort to isolate the organization. Barack Hussein Obama now calls a Fox ban "unimaginable," but his White House tried it — and his spokesman admitted they were willing to do it.

2010: The Obama Justice Department labeled Fox News correspondent James Rosen a possible "co-conspirator" in a criminal leak case, secretly monitored his emails and phone calls, and tracked his movements — an "unprecedented" level of surveillance and intimidation of a journalist over his reporting.

2011: Obama White House officials restricted the Boston Herald from coverage — writing that pool slots depended on covering Obama "fairly" — after the paper ran a front page Mitt Romney op-ed.

2011: After a San Francisco Chronicle reporter recorded protesters interrupting an Obama fundraiser, White House officials threatened to strip the outlet from access and warned of retaliation if the paper reported on it.

2012: The Obama Justice Department secretly seized two months of telephone records covering more than 20 Associated Press lines used by more than a dozen journalists — targeting them over their reporting.

2023: The Biden White House blocked New York Post reporter Steven Nelson from covering the President's only daytime public event — despite empty seats in the room — after the reporter pressed Biden on his family's shady business dealings.

2023: The Biden Administration restricted more than 440 reporters from White House access through a new, retroactive press credentialing process — with independent and conservative journalists taking a heavy share of the hit. The White House Correspondents' Association barely objected.

2008: In the Obama campaign's final days, senior campaign officials pulled reporters from three prominent outlets off the traveling press plane — restricting them from coverage after the papers endorsed Obama's opponent.

2021: The same media now suing once urged a ban on Fox News. CNN's Brian Stelter repeatedly floated removing Fox News from the White House press tool as a "political tool," and later even suggested Fox News be dropped from cable altogether.

---

During the first 100 days of President Trump's second term, the Media Research Center found that 92% of coverage by mainstream outlets was negative compared to nearly 60% positive coverage during the same period under Biden. That's more like a political operation with cameras than a free press holding power to account.

No President is required to host a hostile operation on the grounds. Access has always been a privilege — and President Trump is applying that rule.

Again, I don't think any of this involved exclusion of outlets based on viewpoint from all of the White House, including the main press briefing room. But I thought I'd note the argument, even though I think it's inconsistent with the D.C. Circuit precedent.

The post "White House Access Is a Privilege—Not a Right" appeared first on Reason Magazine.

Prof. Jack Goldsmith (Harvard Law) interviews Prof. John Coates (Harvard Law, former SEC general counsel). An excerpt:

Jack Goldsmith: President Trump regularly breaks news on his social media platform, Truth Social, where he posts market-moving presidential and White House announcements. The company now sells faster access to those posts for up to $100,000 a month. The advantage is apparently just 50 milliseconds, but that is enough to benefit traders.

To date, the early access has attracted more than a dozen subscribers. The arrangement effectively lets Trump profit off the presidency. Can this arrangement possibly be lawful? …

John Coates: … If you pay roughly $1.2 million a year to Trump Media, you get Trump's Truth Social postings ever so slightly before they hit the public website. And Truth Social, of course, is Trump's primary way to talk to the public.

In fairness, just one little nuance: it's not Trump himself selling this access. It's Trump Media. He did create that company. He only owns 41% of it. He's not an officer of it. His stock is in a trust. His son is the trustee. He's the sole beneficiary of the trust, and Trump can revoke the trust at any time. So I say all that just to be fair. But nevertheless, yes, I think you captured it correctly.

[Goldsmith:] So that's good. But given that financial arrangement, is it fair to say that he is an ultimate beneficiary, at least in part, of this $100,000-a-month fee?

[Coates:] Yes. He's directly profiting through his indirect ownership of Trump Media.

[Goldsmith:] John, outside the Truth Social context, isn't selling low-latency access to already public information a standard business practice done by Bloomberg, Dow Jones, and the like?

Yes. I mean, even 50 milliseconds of a timing advantage is commonly paid for by third parties in the markets. The easiest example is arbitrageurs who are trading in two different markets and see the same asset being traded at slightly different prices. They buy in one, they sell in the other, and the faster they can exploit that gap, hopefully before anybody else does, the more likely they're going to profit from that. And so they'll pay millions to co-locate—to physically locate their computer systems very close to the source of whatever information they're trading on.

But here's the difference between that, which is pretty common, and what's going on here. In those situations, the public information is being both produced and sold by a for-profit company, typically either a news source or a market like the New York Stock Exchange. And selling access is something they're entitled to do. They're selling the right to get their information in a way that they can profit from the most.

Here, the information that's being sold certainly doesn't belong to Trump Media. And I don't think it credibly belongs to Trump himself either. He's functioning in a public role when he makes many of these announcements. I suppose you might divide his posts up into those that are just him ranting about his personal things—and maybe that has an effect on the market, and maybe you treat those differently—but when he announces over his posts that we're going to war, he's not announcing that as a private citizen or as a businessman. He's announcing it as president. And that means that someone who's profiting on that is indirectly paying him to trade in the market ahead of the public, on information that belongs to the public, on a differential basis….

The whole thing is much worth reading.

The post "Is Trump Media's Early-Access Feed Lawful?" appeared first on Reason Magazine.

From Posey v. Bushnell, decided today by the Idaho Supreme Court, in an opinion by Chief Justice Richard Bevan (see also this a post from when the verdict was handed down):

In June 2022, Posey performed on stage at a drag show in Coeur d'Alene City Park. The performance was attended by members of the public, including children. Bushnell did not attend the live show, though she later obtained a video recording of Posey's performance. On social media, Bushnell posted a video of herself describing what she saw in the video, claiming that Posey had "flashed his genitalia" during the performance, and asking why Posey had not been arrested. Bushnell then uploaded an edited version of Posey's performance to social media, blurring out the area around his crotch and claiming that the blurred area covered Posey's "fully exposed genitals."

Posey sued Bushnell for defamation, alleging that Bushnell had lied about his performance for the sake of gaining attention on social media. The case went to trial and the jury found in favor of Posey, awarding him $926,000 in compensatory damages and $250,000 in punitive damages.

The court affirmed the verdict, chiefly on the grounds that Bushnell (who represented herself) didn't properly preserve the arguments at trial and make them on appeal; an excerpt as to of the bases for the court's decision:

Our review of Bushnell's briefing reveals that most of the issues raised on appeal are unsupported by cogent argument or authority. Although Bushnell cites numerous authorities in support of her arguments, many do not support her arguments because they are fabricated or inaccurate quotations.

In fact, of the twenty-two purported quotations Bushnell attributes to caselaw, statutes, court rules, pattern jury instructions, and the Idaho Constitution, only six are accurate quotations with some minor spelling errors. Bushnell's briefing also misrepresents caselaw, statutory law, court rules, and pattern jury instructions. For example, Bushnell cites "Jones v. Lynn, 155 Idaho 439, 445 (2013)," (italics in original), as holding that errors occurring during voir dire require reversal, even absent a contemporaneous objection, when those errors undermine the fairness of jury selection. No such decision exists….

Many of Bushnell's arguments on appeal depend on fabricated or misrepresented authority. Once that authority is set aside, those arguments are left without the cogent legal support necessary for appellate review…. Bushnell has also failed to support a significant number of her issues with cogent argument. Many of her issues are presented in passing with very little explanation. Others are so amorphous that it is almost impossible to determine what she is arguing….

Finally, several of Bushnell's arguments rely on imagined or misrepresented facts from the record. For example, Bushnell claims that the district court erred by failing to adopt her proposed punitive damages instruction based on Idaho Civil Jury Instruction 9.20. But the record clearly demonstrates that the district court adopted Bushnell's requested instructions based on 9.20. An appellate argument is only as sound as the record on which it rests. When a party misrepresents the record, the resulting argument cannot establish reversible error because it attributes actions to the district court that it never took….

The court did reach the substantive argument on one issue, though:

We have declined to address virtually every issue raised by Bushnell on appeal except for one: whether the district court erred by ruling as a matter of law in connection with Bushnell's motion for summary judgment, that Posey was not a limited-purpose public figure. Bushnell contends this ruling lead to a lowering of Posey's burden of proof and materially altered the jury instructions.

We disagree. Even if we were to conclude the district court erred when it ruled that Posey was not a limited-purpose public figure, the district court instructed the jury that, to award punitive damages, it must find Bushnell acted with actual malice. The district court further instructed the jury that actual malice existed if Bushnell "knew the defamatory information was false, or acted with a reckless disregard for its truth …."

The jury unambiguously found on the special verdict form that Bushnell knew the communicated information was false or that she acted with reckless disregard for its truth. In other words, even if we assumed the district court's ruling was wrong, any alleged error was harmless because the jury determined by clear and convincing evidence that Bushnell acted with actual malice, which would mean that Posey is entitled to recover compensatory damages….

Wendy J. Olson (Stoel Rives LLP) represents plaintiff.

The post $1.1M Libel Award to Drag Performer Who Had Been Accused of Exposing Himself Upheld appeared first on Reason Magazine.

Interestingly, the view is much more common among conservative Democrats than Socialist or progressive Democrats; I don't know what to make of that.

The support for public ownership and operation is even higher as to grocery stores (46%-44%). But the restaurants result struck me as especially interesting, because the benefits of private owners' variety of decisions (about cuisines, menus, decor, and the like) ought to be so evident there.

The post 39% of Democratic Voters Think Restaurant Industry "Should Be Publicly Owned and Operated" appeared first on Reason Magazine.

Members of Congress often hold demonstrations on the Eastern Steps of the U.S. Capitol building. Ordinary citizens, however, are barred from holding demonstrations on those same steps without congressional sponsorship. This selective limitation is unacceptable under the First Amendment, even conceding that the Eastern Steps are a nonpublic forum. So concluded the U.S. Court of Appeals for the D.C. Circuit today in Mahoney v. U.S. Capitol Police Board.

Although all three judges on the panel agreed the regulations were impermissible, they disagreed on the rationale. Judge Rao, joined by Judge Henderson, wrote for the court. Her opinion begins:

Federal regulations prohibit the public from demonstrating on the Eastern Steps of the United States Capitol unless sponsored by a member of Congress. A minister seeking to pray and demonstrate on the Steps brought a First Amendment challenge to these regulations. The district court granted summary judgment for the minister and universally enjoined enforcement of the regulations.

Although the Eastern Steps are a nonpublic forum, the regulations are not reasonable because an individual's right to demonstrate outside the Capitol cannot turn on the discretion of a member of Congress. The universal injunction, however, exceeded the district court's equitable authority. We therefore affirm the grant of summary judgment for Mahoney on his First Amendment claim but vacate the injunction and remand for the district court to determine the appropriate scope of relief.

As Judge Rao explained, it would be permissible to reserve the Eastern Steps as a means of entering and exiting the Capitol building, but it is not permissible for the government to privilege those demonstrations endorsed or supported by members of Congress over those that are not.

"[T]he government has no authority to license one side to fight freestyle, while forbidding the other to fight at all." Mahoney v. Babbitt, 105 F.3d 1452, 1454 (D.C. Cir. 1997). As applied to the Eastern Steps, the Traffic Regulations are unreasonable because members may not exercise unbridled discretion over which individuals may speak on the Steps of the Capitol.

On the question of remedy, Judge Rao noted that the district court should not have entered a universal injunction under Trump v. CASA, as such an injunction exceeded the district court's remedial authority. Note, however, that as a consequence of the D.C. Circuit's decision, the government is effectively precluded from barring anyone from demonstrating on the Eastern Steps under existing regulations. This is because the D.C. Circuit's decision (unlike that of the district court) has precedential effect and dictates an equivalent outcome in any and all future suits brought against the Capitol Police challenging the enforcement of the existing rules. As with most challenges brought against agency regulations, the practical effect of a victory against the federal government in the D.C. Circuit is nearly always universal (a point I expanded on here).

Senior Judge Rogers dissented from Judge Rao's opinion, largely on the reasoning, as her opinion would also bar the Capitol Police from enforcing its regulations against Mahoney. Judge Rogers would have affirmed the district court's conclusions that the Eastern Steps are a traditional public forum (as opposed to a nonpublic forum) and that the regulations in question are not narrowly tailored to serve the government's asserted security interests.

The post D.C. Circuit Rejects Limits on Capitol Steps Demonstrations appeared first on Reason Magazine.

Plaintiff and Defendant are attorneys who met seven years ago as summer associates at different prominent law firms in New York City…. [Plaintiff] alleges that Defendant violently raped and sexually assaulted her on the night they met, causing her physical, professional, and psychological damage. Defendant denies all allegations of nonconsensual conduct…. Defendant claims that he and Plaintiff engaged in consensual sexual activity in May 2018. Defendant attests that he was "terminated from [his] employment with a top law firm on October 13, 2025 as a result of the Plaintiff's Complaint and false allegations," and that he fears that it would be "nearly impossible" to obtain employment with his name attached to this lawsuit, He also claims to fear that his physical safety could be placed at risk….

Defendant sought to proceed under a pseudonym, but the court said no:

[T]he economic and reputational harms that Defendant has faced and may face as a party to this action, substantial though they may be, are outweighed by the public interest in access to judicial proceedings….

I excerpted more of the opinion, which you can read here. Naturally, one can agree or disagree with the court's decision to deny pseudonymity, but in any event, my post passed along that decision.

[2.] Then, on July 22, Przybylowski's lawyer (a partner at a small but prominent law firm) sent a letter to Reason, with a "demand" that the post be removed:

Following publication of the Article, the United States District Court for the Southern District of New York dismissed the underlying action with prejudice. In light of the sensitive nature of the allegations, the Court also ordered that the filings containing those allegations be sealed. A copy of the Court's order is enclosed as Exhibit B. Because the allegations referenced in the Article have been dismissed with prejudice and the underlying filings have been sealed by the Court, they are no longer part of the public record. Nevertheless, the Article continues to republish and disseminate those allegations, causing ongoing harm to our client.

IN LIGHT OF THE FOREGOING, DEMAND IS HEREBY MADE that you remove the Article and all statements referencing the dismissed and sealed allegations in their entirety no later than July 27, 2026. While our client hopes this matter can be resolved promptly and amicably, he is prepared to pursue all available legal remedies to mitigate and remedy the harm caused by the continued publication and dissemination of these allegations, including seeking appropriate injunctive relief and recovery of all damages and other relief available under applicable law.

But while the District Court did order (incorrectly, I think) the sealing of some of the court filings, it expressly refused to seal its orders and opinions, including the opinion that I was quoting:

[T]he motion to seal the docket in its entirety would have the Court shield from public view decisions already rendered by this Court, which are at the core of the performance of the judicial function. The parties' privacy interests are insufficient to justify the sealing of judicial orders and opinions.

I therefore promptly and amicably declined to go along with counsel's demand. Even if the opinion had been retroactively sealed, I believe I would have been within my rights to keep up my post quoting the opinion, under cases such as Florida Star v. B.J.F. (1989). But given that the opinion wasn't sealed—again, the court expressly declined to seal it—it's hard to see how I could be subjected to an injunction or damages by keeping up a post that was reporting on its contents. (Note that the judge had struck from the docket one opinion that she had released on April 15, because she had learned the same day that the parties had "agreed to a settlement in principle" the day before; but that is not the opinion that I was quoting.) And indeed no "legal remedies" have been sought against me since my refusal.

[3.] But someone (I don't know who) has sought to do something else about my post since that refusal: A few days ago, the Lumen Database reported that Google had received a request that it "deindex" various web pages, which is to say remove them from its search results. Those pages include my post about the case, a Bloomberg Law article about the case, and several pages that archived opinions about the case or dockets for the case:

1. https://app.midpage.ai/case/finley-v-[REDACTED]-11062084
2. https://cases.justia.com/federal/district-courts/new-york/nysdce/1:2025cv04383/643215/26/0.pdf
3. https://dockets.justia.com/docket/new-york/nysdce/1:2025cv04383/643215
4. https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2025cv04383/643215/28/
5. https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2025cv04383/643215/39/
6. https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2025cv04383/643215/45/
7. https://news.bloomberglaw.com/business-and-practice/ex-pomerantz-associate-denied-anonymity-in-rape-suit-against-him
8. https://reason.com/volokh/2025/12/15/no-pseudonymity-for-civil-defendant-accused-of-sexual-assault/
9. https://storage.courtlistener.com/recap/gov.uscourts.nysd.643215/gov.uscourts.nysd.643215.28.0.pdf
10. https://www.casemine.com/judgement/us/69e3b6332e996410bea78ed5
11. https://www.docketalarm.com/cases/New_York_Southern_District_Court/1-25-cv-04383/Finley_v_[REDACTED]/
12. https://www.law360.com/cases/6830d818a5043482d2376c05
13. https://www.leagle.com/decision/infdco20260317c21
14. https://www.leagle.com/decision/infdco20260416d22
15. https://www.pacermonitor.com/public/case/58203472/Finley_v_[REDACTED]

There is of course no legal basis mandating the removal of these materials, nor do I see any justification in Google policies for its deindexing those sites voluntarily (as it is generally free to do). And to my knowledge, the attempt to vanish those sites has failed: I don't think Google has indeed deindexed them.

Again, the Lumen entry does not indicate who submitted the deindexing request. Still, someone did submit it, and it strikes me as a helpful illustration of how people, whoever they may be, try—even if often without success—to get matters (even matters of public record) hidden from online viewers. For more posts on this general subject, see here.

I e-mailed Przybylowski's lawyer (see item 2 above) Thursday night and again Sunday to ask whether he, his colleagues, or his client had a statement on the matter. I have not heard back from them; if I do hear something, I'll update the post accordingly.

The post Someone Trying to Vanish My Post About a No-Pseudonymity Decision appeared first on Reason Magazine.

In Mormino v. Lomb Inc., filed Aug. 31 in Missouri state court, plaintiff—General Manager for one of defendant's restaurants—posted this post on his personal Facebook page after the Charlie Kirk murder:

The restaurant fired him, and now plaintiff is suing. Missouri is one of a significant minority of states that forbids even private employers from firing employees based on their "political activity":

Every [entity] organized or existing by virtue of the laws of this state, or doing business in this state who shall:

1. … [D]ischarge or discriminate or threaten to discriminate against any employee in this state, with respect to his or her compensation, terms, conditions or privileges of employment by reason of his political beliefs or opinions; or
2. Coerce or attempt to coerce, intimidate or bribe any member or employee to vote or refrain from voting for any candidate at any election in this state; or
3. Coerce or attempt to coerce, intimidate or bribe any member or employee to vote or refrain from voting for any issue at any election in this state; or
4. Make any member or employee as a condition of … employment, contribute to any candidate, political committee or separate political fund; or
5. Discriminate or threaten to discriminate against any … employee in this state for contributing or refusing to contribute to any candidate, political committee or separate political fund with respect to the privileges of membership or with respect to his employment and the compensation, terms, conditions or privileges related thereto shall be guilty of a class E felony….

Any person aggrieved by any act prohibited by this section shall, in addition to any other remedy provided by law, be entitled to maintain … a civil action …, and if successful, … shall be awarded civil damages of not less than one hundred dollars and not more than one thousand dollars, together with … costs, including reasonable attorney's fees….

Plaintiff's argument is that he was fired because of his "political beliefs and opinions," and he also argues that he should get compensatory damages (and not just the $100-1000 statutory damages), including emotional distress damages, under the Missouri tort of "wrongful discharge in violation of public policy." Here's a summary of the Missouri wrongful discharge tort from a 2009 case:

[There is] a public policy exception to the employment at will doctrine, which "provides that an at-will employee who has been discharged by an employer in violation of a clear mandate of public policy has a cause of action against the employer for wrongful discharge." … [T]he four general categories of public policy exception cases, which include:

(1) discharge of an employee because of his or her refusal to perform an illegal act; (2) discharge because an employee reported violations of law or public policy to superiors or public authorities; (3) discharge because an employee participated in acts that public policy would encourage, such as jury duty, seeking public office, asserting a right to collective bargaining, or joining a union; and (4) discharge because an employee filed a worker's compensation claim.

Plaintiff's argument is under category 3: The statute quoted above "reflects a clear mandate of Missouri public policy protecting employees from discharge because of their political beliefs and opinions and safeguarding their ability to engage in political expression," and "Mormino engaged in conduct protected by that public policy by expressing political beliefs and opinions on a matter of public concern in his … post."

All this still leaves various questions: One, for instance, is whether "political beliefs and opinions" refers just to electoral politics or—as in the First Amendment concept of "political speech"—to the broader sense of beliefs related to politics writ large. (See pp. 313-14 of this article.) Another might be whether in fact plaintiff was fired for his political views or instead for the vulgarity of his post (though then the restaurant would have to show it would have fired other employees for vulgar posts, which might not be easy to show).

Another might be whether a restaurant's firing an employee because of a fear that customers would dislike the employee's political beliefs or opinions counts as firing based on political beliefs or opinions. There is basically no precedent  interpreting this particular Missouri statute. But perhaps this case will end up setting such precedent, or at least will further publicize the statute among Missouri citizens and lawyers.

Thanks to Prof. Lisa Hoppenjans for the pointer.

The post Lawsuit Against St. Louis Restaurant for Firing Manager for Post Related to Charlie Kirk Murder appeared first on Reason Magazine.

• AI prompts and outputs used by government officials to conduct public business should generally be treated as public or agency records subject to state public records laws and FOIA.
• While courts have not yet resolved how these laws apply to AI chatbot conversations, existing legal principles strongly support disclosure when the records relate to official functions.
• Practical barriers such as poor retention, high costs, and asserted privileges will likely shape future disputes over access.

And an excerpt from the Introduction:

In 2025, a combined reporting project between Cascade Public Broadcasting and KNKX-TV exposed that city workers, including the mayor's staff, in two Washington cities utilized ChatGPT to write mayoral letters, generate grant applications, draft policy documents, synthesize public comments, and compose replies to citizens and the media. The joint reporting effort revealed alleged bid-rigging performed through AI prompts and responses, and that half of a letter the mayor of Bellingham sent to state authorities seeking funds for a Native American tribe was actually copied, verbatim, from ChatGPT. That reporting was enabled by the successful use of the Washington Public Records Act. Similarly, in 2025, the Texas Department of Transportation produced numerous conversations between its employees and ChatGPT in response to a records request under that state's public records law.

But not all public officials have been willing to provide their AI prompts and results to requesters under state and federal public records laws. As recently reported in Wired magazine, both the "Department" of Government Efficiency and the Department of Housing and Urban Development denied Democracy Forward's Freedom of Information Act (FOIA) requests for the AI prompts and responses used in those agencies' crafting of official policies; HUD cited the deliberative process privilege (FOIA Exemption 5) as grounds for its withholding decision. At the state level, the City of Colorado Springs, Colorado, recently refused to provide a local television station copies of the AI chatbot interactions of that city's mayor, citing two exemptions from disclosure in Colorado's Open Records Act: "work product assembled for the benefit of elected officials" and "deliberative process" materials….

No court has yet published a decision applying either FOIA or a state public records act to government officials' "conversations" with AI chatbots. While disputes over records access percolate their way up through the courts, this article examines what the public's right to know "what their government is up to" is when it uses generative AI to conduct public business….

The post "Are the Government's Conversations with AI Accessible Under Public Records Laws and FOIA?" appeared first on Reason Magazine.

In the mid-1960s, the idea of legal restrictions on hate speech was one whose time seemed to have come and gone. Yet only a decade later, the public's interest in hate speech laws surged.

This renewed interest can be attributed, in part, to changing attitudes toward freedom of speech. By the 1970s, many Americans had come to believe that freedom of speech had not secured the just and humane society that liberals of the 1960s envisioned. The 1970s saw economic hardship and what President Jimmy Carter famously described as national "malaise." Pornography proliferated, crime wracked the nation, and racism continued to flourish. Waning confidence in freedom of speech coincided with an unexpected series of events that produced one of American history's most important dialogues on freedom of speech and hate speech.

In 1977, a small group of uniformed Nazis attempted to march into a Chicago suburb populated by Holocaust survivors. The "Nazi–Skokie affair" generated a firestorm that altered the terms of the hate speech debate.

The Skokie incident set off an unprecedented conversation about hate speech and legal limitations on hate speech. For the first time, ordinary Americans learned that the First Amendment protected most forms of hate speech. In dining rooms, community centers, and schools, people debated: Why should Nazis be allowed to march in Skokie? Should freedom of speech have limits? Should a nation that is committed to racial and religious equality tolerate the speech of racists and fascists?

The Nazi–Skokie controversy shattered the liberal consensus on freedom of speech. After Skokie, liberals increasingly questioned whether freedom of speech was compatible with equality and whether there were times when democracy demands less, rather than more, expression. The impassioned arguments of the Holocaust survivors served as a reminder of the powerful and dangerous consequences of uninhibited speech. To many Americans, the specter of swastika-bearing Nazis marching in a Jewish suburb under the protections of the Constitution seemed to be another indication of how freedom of speech had failed to live up to its promises.

The Nazi–Skokie controversy revived calls for hate speech laws and added a significant new rationale to the arguments for those laws—that hate speech should be banned or limited because it creates psychological and emotional harm. This concept, presaged by the 1964 Cleveland-Marshall Law School "Group Defamation" symposium, radically shifted the terms of the debate.

The Nazi–Skokie incident began with George Lincoln Rockwell's assassination in 1967. After Rockwell's death, the American Nazi movement splintered. Without Rockwell's charisma and the loyalty that he inspired, his National Socialist White People's Party (NSWPP) became bogged down in an intense leadership struggle and fractured into hostile factions. One potential successor was Frank Collin, a twenty-six-year-old neo-Nazi from Chicago who headed the NSWPP's Midwestern branch.

Collin's career in the NSWPP came to an abrupt halt when his colleagues discovered he was Jewish. In 1969, the FBI received a tip that Collin was one-half Jewish. His father, Max, born as Max Simon Cohn in Munich, had been in the Dachau concentration camp in 1938 and later emigrated to the United States.

The FBI sent an anonymous letter to the NSWPP headquarters with this information and also leaked it to the press. This led to Collin's ousting. In 1970, he went on to create a rival group, the National Socialist Party of America (NSPA). Collin played to the same racist, antisemitic, and anti-integration sentiment that had won Rockwell support in the Chicago area. Black people were inferior and should be deported to Africa, he contended. Jews were involved in an "international financial and communist conspiracy" and should be relegated to ghettoes or sent to concentration camps.

Unlike the charismatic and strapping Rockwell, Collin was short, pudgy, and beady-eyed. He combed his dark, thinning hair to the side like Hitler. He had a weak and nasal voice and was a shrill and woefully ineffective speaker. He had the demeanor of a high school teacher, store clerk, or furniture salesman. He was, in the words of one journalist, the "kind of guy who used to eat erasers in class and roll his eyeballs up into his head to get attention."

Like Rockwell's NSWPP, the NSPA was little more than a façade with the air of a high school costume party. The NSPA copied the military uniform of Hitler's "brownshirts." Collin's "stormtroopers" wore brown shirts with dark brown ties, swastika pins, black belts with buckles, a steel helmet, and the swastika armband on one arm and the American flag on the other.

Collin had none of Rockwell's leadership ability, although he studied Rockwell's tactics meticulously. He knew that Nazi symbolism, especially the use of the swastika, created fear and that fear generated reactions and media publicity. "The swastika [is] the only thing that makes them [Jews] blow their cool," he said. "We carry the swastika," Collin explained, "because it is the ancient symbol of our white people throughout history and the world.… The swastika is the emblem of racial brotherhood and comradeship among white people everywhere."

Even more than Rockwell, Collin commanded media attention. With his swastikas, tough talk, and phalanx of storm troopers, he had a noisy, visual presence that was practically made for television. Collin's genius was his ability to manipulate powerful symbols and emotions to capture the interest of the public and the press.

Excerpted from Hate Speech: The Legal and Cultural History of an American Dilemma by Samantha Barbas, courtesy of the University of California Press. Copyright © 2026.

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Prominent journalist, academic, and anti-racism activist Nikole Hannah-Jones recently wrote a controversial New York Times article, in which she expresses regret for her and her husband's decision to place her daughter in underperforming majority-Black public schools in New York City. Hannah-Jones hoped that putting her daughter there would help improve education for disadvantaged minority children, as her family's wealth and skills as political activists might stimulate reforms. Instead, her daughter ended up bitterly bemoaning the poor quality of the education she got, and Hannah-Jones' well-meaning efforts to improve the public schools she attended accomplished very little. Eventually, at her daughter's request, Hannah-Jones acknowledged error, and sent her daughter to a higher-quality selective high school.

Hannah-Jones' story is a testament to the value of exit rights and choice. Although she does not seem to recognize it, the best way to help students from less advantaged families than her own is to expand exit and choice opportunities for them. That is what social science shows. Her story also resonated with me because of my own experience as both a struggling student and (later) a parent. That experience also highlights the value of exit rights and choice, even if in a slightly different way.

While I think Hannah-Jones hasn't fully drawn the right lessons from her experience, I commend her for her willingness to acknowledge error. Few public intellectuals do that, and especially not on issues close to the heart of their ideological and personal commitments, as this one is for her.

Exit vs. Voice

Hannah-Jones' initial decision to send her daughter to a poorly performing public school was motivated by an argument associated with the great economist Albert Hirschman (though I don't know if that's where she got the idea). In his classic work, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States, Hirschman argued that exit rights can be harmful if it leads people to leave a flawed institution that they could instead stay and successfully reform using "voice." He specifically applied this to the issue of school choice, arguing that the most savvy and politically influential parents might take their kids out of badly-performing schools, instead of staying and successfully reforming them.

In my book Free to Move: Foot Voting, Migration, and Political Freedom, I outlined some  limitations of Hirschman's argument. I summarized my key points here:

It is important to recognize that Hirschman's argument applies only in a narrow range of circumstances. In order for it to hold true, a subset of participants in a political institution must 1) be able to force through effective reforms where the others could not impose the reforms in their absence; 2) prefer to exit rather than exercise voice despite the likelihood that their use of voice will be successful; and 3) possess exit options that are not available to the others. If 1 holds true, it is hard to see why 2 would, since these individuals could instead get what they want without moving. The more foot voting opportunities become available to everyone, the more the third precondition is weakened.

Even if all three preconditions are met, foot voting by even some participants could give policymakers an incentive to enact needed reforms of their own accord in order to retain tax revenue from those who might exit. This seems to have occurred when it comes to the paradigm case that gave rise to Hirschman's theory: school vouchers that give parents funds to transfer their kids to better-performing schools…. Peer-reviewed studies of the effects of vouchers find that they actually improve the quality of public schools "left behind" by those who exit. By contrast, simply increasing funds for traditional public schools without expanding exit rights has little or no educational benefit.

Point 1 above is of special relevance to Hannah-Jones' experience. It turns out that she and others like here were not actually in a position to effectively promote beneficial reforms in the failing schools in which she enrolled her daughter. More fundamentally, the main problems besetting those schools are not lack of resources or lack of activism, but poor incentives. As economist Alex Tabarrok points out, New York City public schools spend over $40,000 per student per year (one of the highest averages in the nations), and P.S. 307 (the school where she initially sent her daughter) spends over $52,000. And NYC doesn't lack for motivated political activists. The problem is that school officials and employees have little incentive to use those resources in ways that actually facilitate quality education. To put it crudely, they get paid the same, regardless of how well the kids do. If the latter perform poorly, that might even be a justification for increasing spending further. This is a large part of the cause of what Hannah-Jones calls "the callous disregard" for children's needs of the faculty and staff at her daughter's elementary school. Parental "voice" is unlikely to fix that.

By contrast, when parents can choose their schools (as Hannah-Jones eventually did), they can seek out ones that fit their kids' needs better. And schools that rely on choice for their funding have strong incentives to actually educate the kids effectively. And, as noted in my book, studies indicate that expanding exit rights and choice particularly benefits the poor and disadvantaged - including minorities.

Hannah-Jones rightly laments that such options are often only available to the relatively affluent (most of whom are white). But there is much we can do to expand exit options for others.

As I explain in a series of articles coauthored with Josh Braver (see here and here), one way to do so is to break down exclusionary zoning, which - among other things - keeps poor and minority parents from moving their children to areas with better schools. Exclusionary zoning also has a horrible racist history.

We can also expand choice and exit rights by instituting universal school choice, which can - at least to a large extent - break the connection between residency and schooling, thereby particularly benefiting poor and disadvantaged students. In another recent article, I explain how this (along with other measures to expand "foot voting" opportunities) can help us more fully realize the promise of Brown v. Board of Education.

By contrast, New York City has only a very limited school choice system, which does not include private schools, and has various other constraints. Even the limited available choice still creates important gains for poor Black and Hispanic students. But expanded choice and competition could make the system better.

One Student's - And Parent's - Experience

Some parts of Hannah-Jones' story reminded me of aspects of my own, as both student and parent. I was far from an ideal student, and - later - far from an ideal parent. But those shortcomings accentuated the value of exit rights and choice, without which I (and later, my daughter) would have been far worse off.

My parents brought me to the United States from the Soviet Union when I was six. Obviously, pretty much everything I have managed to accomplish since them was the result of that choice - the difference between the opportunities offered by a relatively free society and those of a socialist dictatorship (which later became an only modestly less awful nationalist dictatorship).

More immediately relevant was my parents' further use of exit rights in the US. I was no great student, and did not learn to read till the age of eight - a consequence of some combination of lack of motivation and what may have been undiagnosed dyslexia. When I was 11, my parents moved to the town of Lexington, Massachusetts, largely because it had better schools than the one where we lived previously, and their strengths were particularly well-suited to my needs. Like Hannah-Jones' daughter, after she went to a stronger high school, I initially struggled in the new environment. But, eventually, I did much better. This move did not make as big a difference as that from Russia to the US. But it was significant, nonetheless. I recounted these experiences in  my 2010 immigration memoir, written for HIAS.

As a student at Lexington High School, I witnessed another benefit of school choice. The Boston area has a program called METCO, which allows inner-city students (mostly Black and Hispanic) to voluntarily apply to attend much stronger schools in the suburbs, such as LHS. Studies show that participants make major educational gains, and are more likely to attend college.

Many METCO students initially struggle in their new environments (as I did myself after we first moved to Lexington). And there is sometimes a gap between their grades and test scores, and those of the suburban kids in their new schools. When I was a high school junior, I wrote an article about this gap for the school newspaper, thereby unexpectedly causing something of a local controversy. Nonetheless, the program creates real progress for disadvantaged kids. And, unlike mandatory school busing - which led to outbreaks of violence and racism in the Boston area in the 1970s - METCO has met with little opposition.

Many years later, my own daughter Lydia, had educational issues of her own. When the Covid pandemic hit in 2020, my wife and I saw that remote education in the Arlington, Virginia public schools would be a terrible fit for Lydia, given her need for occupational therapy, and what we later learned was a fairly serious case of dyslexia (likely worse than what I had). We made the decision to send her to a private school which - among other things - kept on with in-person education throughout the pandemic. Lydia did better, as a result (including after the pandemic). Had we instead worked to use "voice" to reform the local public schools, it's unlikely we would have achieved much. Lydia would have suffered for nothing.

Nonetheless, progress was still uneven. Like me before her, Lydia still did not know how to read at the age of eight. After extensive consultation with specialists at her school and elsewhere, we finally hit upon the idea of teaching her to read by helping her memorize "sight word" flashcards. Like me, Lydia has trouble with visual learning, but is very good at learning through memorization and repetition.

For several months, Lydia and I spend 15-30 minutes every night memorizing sight words. We went from kindergarten sight words, all the way to fifth-grade ones. At the end of this not-always-fun process, Lydia could read at grade level, and the first book she read on her own was classic science fiction novel Ender's Game, which is intended for adults. Today (at age 11), Lydia is an "academic superstar," as her school's principal put it.

In retrospect, I should have hit upon this fairly simple and cheap idea much earlier, especially given my own experiences. I am to blame for that oversight. The episode shows that even high-quality schools and teachers cannot fully substitute for parental judgment of their kids' specific needs. But the school was invaluable in maintaining a measure of progress in the meantime. And discussions with their and other specialists helped us eventually figure out the right path.

In sum, no school is perfect, and parents need to be attentive to their kids' individual situations. This reality creates difficulties for poor parents, single parents, and others less advantaged than Hannah-Jones or myself. But exit rights, choice, and competition can do much to improve the lot of poor and minority students.

The post Exit, Voice, and Nikole Hannah-Jones appeared first on Reason Magazine.