Yesterday, the Foundation for Individual Rights and Expression (FIRE), filed a lawsuit challenging an egregious violation of the First Amendment by the federal Immigration and Customs Enforcement agency (ICE). FIRE's website has a helpful description of the damning facts of the case (see also this summary by Reason's Tosi Akintola):

The freedom to criticize law enforcement without fear of punishment is an essential right in the United States. In fact, it's one of the things that separates our free nation from a police state. But officials at the Department of Homeland Security and Immigration and Customs Enforcement don't seem to understand this.

Five months after a Rochester man, David Streever, wrote a critical email to the then-head of ICE during the agency's January crackdown in Minnesota, federal officers recently went to extraordinary lengths to confront and intimidate him — even going so far as to stake out his New York City hotel as he returned from an overseas vacation with his daughter.

That's an outrageous violation of an American's First Amendment rights. So today, the Foundation for Individual Rights and Expression filed a federal lawsuit to challenge ICE's efforts to scare Streever and others into silence and remind other government officials that such behavior is un-American, unconstitutional, and unacceptable in a free society….

In January, federal immigration agents shot and killed Alex Pretti, a Minneapolis ICU nurse, during a tense encounter. Outraged, Streever wrote a stern email to then-acting ICE Director Todd Lyons, entitled "What's next" and calling the official a "monstrous human being" who will "go down in history as America's Reinhard Heydrich, the butcher," a reference to the infamous Nazi official.

The First Amendment unquestionably protects Streever's criticism. Writing an angry note to political leaders is an American tradition as old as the republic itself. That's why time and again, the Supreme Court has upheld that cherished freedom, warning against attempts to label heated political rhetoric as dangerous or unprotected.

FIRE is absolutely right. The organization first became famous for combating mostly left-wing speech codes and other abuses on college campuses. Here, they are working to counter a threat to free speech from the other side of the political spectrum. The consistency is admirable.

Sadly, this is far from the only case where ICE has violated free speech rights. In Tincher v. Noem (now redesignated Tincher v. Mullin), a federal district court found numerous examples of ICE and other federal immigration enforcement agencies using force and other illegal coercive tactics against peaceful protestors and journalists in Minnesota. An appellate court ruling later stayed the injunction issued by the district court, citing procedural considerations (e.g. - it ruled the injunction was likely overbroad). But that doesn't change the awful facts.

Evidence indicates that ICE has repurposed its Office of Professional Responsibility - which is supposed to monitor the agency's own compliance with law - to investigate and harass online critics.

ICE defenders claim its campaign of intimidation is justified by the supposed need to prevent "threats" and "doxxing" of agents. Actual threats of violence can be investigated and prosecuted. But, as the Streever case and others show, ICE's campaign of harassment and intimidation goes far beyond situations where actual threats are at issue. In addition, citizens have every right to criticize government officials -including law enforcement officers - by name.  That's true even if doing so results in people sending those officials angry messages.

The issues at stake here go far beyond the specific case, or the particular issue of immigration enforcement. Law enforcement agencies cannot be allowed to use their power to target and harass their critics. Conservatives inclined to sympathize with ICE here should consider how they would reach if federal or state gun-law enforcers used similar tactics against gun-rights activists.

Sadly, ICE's abuses of civil liberties and other cruel and illegal actions go far beyond violations of the First Amendment. In an August 2025 article in The Hill, I summarized many of ICE's other abusive and unconstitutional actions - including detention without due process, widespread racial profiling, and more. Things have only gotten worse since then. This is just one of a number of ways in which our current system of mass deportation endangers the liberty of American citizens, as well as that of recent immigrants.

Lawsuits like that filed by FIRE can play a valuable role in constraining ICE's violations of constitutional rights. But case-by-case litigation can only do so much. Not all victims have the resources to go through prolonged litigation.  And, even for those who sue and win, justice delayed is often justice denied.

The systematic nature of ICE's many abuses calls for a systematic solution. As I explained in the Hill article, and a later follow-up piece, we should abolish ICE and transfer its funds to real cops. That will simultaneously end ICE abuses and reduce crime. In the linked pieces, I develop the case for abolishing ICE in greater detail, and address various possible counterarguments.

The post FIRE Files Lawsuit Against ICE Violations of the First Amendment appeared first on Reason.com.

From James v. Columbia Univ., decided Thursday by N.Y. trial court judge Kathleen Waterman-Marshall:

This action arises from certain disciplinary actions by defendant Columbia University …, including Columbia's decision to place plaintiff Khymani James …, a third-year undergraduate student who identifies as a black, Caribbean-American, on a one-year suspension….

James was studying abroad in London during the fall semester of 2023 when they began posting social media content in support of Palestine. According to James, they subsequently received berating, insulting, and physically threatening social media messages as a result thereof. In an alleged effort to dissuade the individuals behind these messages from engaging with James or causing them any physical harm, James posted public messages including one stating:

Zionists in my dm wanting to meet up and fight lol. I don't fight to injure or for there to be a "winner" / "loser." I fight to k***[.] See yall in New York [] January 2024 [].

In response to alleged complaints regarding James' posts, Columbia's Center for Student Success and Intervention ("CSSI"), the office responsible for administering academic and behavioral discipline, scheduled a virtual meeting with James on January 9, 2024. Without Columbia's knowledge or consent, James livestreamed the CSSI meeting, at which James compared Zionists to Nazis and stated, [among other things], that "the world is better without them." After the meeting with CSSI, James continued the livestream and told their online audience to "be grateful" that he was not "murdering Zionists."

CSSI's policies and procedures prohibit: any unauthorized copying or distribution of any Columbia record, which includes audio or video recording or streaming; and any student from engaging in conduct that is inconsistent with Columbia's Non-Discrimination Statement and Policy. Specifically, CSSI's policies state:

The installation, use, and/or threatening the use of any device for listening to, observing, photographing, recording, amplifying, transmitting, or broadcasting sounds or events in any place where the individual(s) involved has a reasonable expectation of being free from unwanted surveillance, eavesdropping, recording, or observation, without the consent of all persons involved, is prohibited.

In March 2024, CSSI notified James that they may have violated Columbia's policies by: (1) livestreaming the January 9 meeting with CSSI, and (2) using language denigrating or showing hostility or aversion toward members of a protected class during the meeting. Following a disciplinary hearing, CSSI determined that James engaged in unauthorized surveillance/ photography and copying and/or distribution in violation of CSSI's policies and procedures, and violated Columbia's non-discrimination policy. Consequently, CSSI placed James on disciplinary probation through and including September 3, 2024; and advised that additional violations could result in more disciplinary consequences, but James' good academic standing would be restored if no further violations occurred during the probation period. The probation did not prohibit James from continuing their academic studies at Columbia.

On or about April 18, 2024, Columbia students set up an encampment on Columbia's Morningside Heights campus. Days later, while James and other students were protesting inside Columbia's gates, James contends that several Columbia students approached the encampment carrying an Israeli flag and accosted several other students participating in the protest. According to James, a shouting match ensued but the students carrying the flag subsequently walked away. James admits that they took a picture of such students and posted a message on social media stating: "Zionists just attempted to harass us and bring their terrorist flag over. We told them to get the hell out!"

On April 21, 2024, James participated and encouraged students to form a "human chain" after several other students allegedly physically attempted to enter the encampment while recording others without their consent and despite requests that such students cease recording.

James admits that they announced to the entire encampment that "Zionists have entered the encampment,' and asked that students link arms to prevent the students from getting further into the encampment. James asserts that this was merely a "non-violent safety measure" not intended to threaten, cause harm to, or prevent these students from leaving as there was sufficient space behind them to retreat.

On April 26, 2024, CSSI placed James on immediate interim suspension for "disruptive behavior by participating in an unapproved encampment on the West Lawn", engaging "in behavior that was threatening and" making "discriminatory remarks about other students during this unapproved protest." The interim suspension restricted James from all Columbia campuses, facilities, and properties, and prohibited James from participating in any Columbia classes or exams in-person or remotely or submitting assignments, as well as from any academic or extracurricular activities.

On April 26, 2024, Columbia leaders issued the following statement:

The antisemitism being expressed by some individuals is intolerable and the safety situation has become concerning, particularly with the involvement of individuals not associated with Columbia.

Chants, signs, taunts, and social media posts from our own students that mock and threaten to "kill" Jewish people are totally unacceptable, and Columbia students who are involved in such incidents will be held accountable. We can report that one individual whose vile videos have surfaced in recent days is now banned from campus.

CSSI held a hearing in July 2024, and determined that James engaged in disruptive behavior and violated Columbia's non-discrimination policy based upon the April 20, 2024 Social Media Post and the April 21, 2024 human chain incident. On August 7, 2024, CSSI suspended James from Columbia through September 1, 2025, since James was on probation at the time of the violations. CSSI's notice to James stated that they would be eligible to return to Columbia in the Fall 2025 semester….

The court rejected on procedural grounds James' claims that the suspension violated N.Y. state law governing private university enforcement of its rules:

The complaint cites to Tedeschi v Wagner College (N.Y. 1980) for the proposition that "a private university is held responsible to strictly observe and grant the procedural and substantive rights it promises its faculty in its manuals and codes."

According to the complaint, Columbia: (1) "has an implied obligation of good faith and fair dealing in its relations with James," (2) "promises its students due process, equal protection and academic freedom in its Student Manual, as well as the confidentiality of their records, including disciplinary files," and (3) "undertakes not to retaliate against students for their First Amendment protected personal opinions stated in academic or nonacademic environments." The complaint further alleges that:

Columbia's violation of James' Tedeschi Rights include the interim suspension; speech about him by its President and others; subjecting him to the unfair CSI process; succumbing to outside pressure to sanction him; characterization of speech as antisemitic that was not; the "double jeopardy" of sanctioning him a second time in a matter which had already been resolved; issuing a sanction of suspension for his reasonable, peaceful self-help in forming the human chain; and disclosure of any information about him to the Committee.

Instead of protecting James, as his Tedeschi rights mandated, Columbia enthusiastically and willfully punished him for his criticism of Israel and support for the Palestinian people.

Columbia's malicious and willful actions have violated James' Tedeschi Rights and inflicted severe damage on his education and on his personal well-being….

Columbia argues that the Tedeschi rights claim should be dismissed because there is no recognized cause of action for Tedeschi rights, and the requirement of substantial compliance with university policies under Tedeschi … is relevant to special proceedings under Article 78 of the [New York] CPLR [Civil Practice Law & Rules], through which students may challenge a university's disciplinary actions. Columbia contends that James' claims would nevertheless fail under Article 78 because: James seeks damages and no other specific relief, whereas Article 78 allows damages only insofar as they are incidental to the primary relief sought; and, given Article 78 proceedings must be brought within four months after a final and binding decision, James could only challenge the one-year suspension, which James could not satisfy the high burden of showing that Columbia disciplined them in an arbitrary and capricious manner, failed to substantially abide by its own policies, or imposed a penalty that shocks the conscience….

Challenges to a university's procedures are typically pursued via an Article 78 proceeding…. "[W]hen litigants fail to avail themselves of the CPLR article 78 avenue, courts may justifiably dismiss plenary claims premised upon alleged failures to follow applicable principles"] "[U]niversity's academic and administrative decisions require professional judgment and may only be reviewed by way of an article 78 proceeding to ensure that such decisions are not violative of the institution's own rules and neither arbitrary nor irrational …." …

The court also rejected James' claims that the suspension was discriminatory:

[T]he complaint alleges that James' race and that their support of the people of Palestine, which has subjected them to discrimination, brings them within the scope of the [antidiscrimination] law's protections. The complaint also alleges that Columbia committed "reverse discrimination" in violation of the New York Human Rights Law by "privileging a subset of Jewish people proclaiming that Zionism is a feature of their religious belief over all others." Additionally, the complaint states that:

Columbia's acts and omissions have subjected, and continue to subject, James to discrimination and harassment.

Columbia had actual notice that such discrimination and harassment, over which they had substantial control and the authority to remediate, was and continues to be so severe, pervasive, and objectively offensive that it created and continues to create a hostile environment that deprives James of full access to Columbia's educational programs, activities, and opportunities.

Columbia continues to grossly fail to take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, and prevent the harassment from recurring. Such unlawful deliberate indifference causes James to be subjected to a hostile environment.

The environment at Columbia, which has been rendered hostile for James, is sufficiently severe, pervasive, persistent, and offensive such that it deprives James of equal access to the opportunities and benefits that Columbia provides to other students….

Columbia also contends that James has failed to establish his claims that Columbia has discriminated against them based on James' race, support of the rights of Palestinian people, and not being a Jewish Zionist—namely, James fails to plead direct discrimination in connection with the discipline they received, as well as deliberate indifference to peer harassment. Finally, Columbia asserts that the declaratory judgment cause of action should be dismissed because James has an adequate, alternative remedy to challenge its decisions via an Article 78 proceeding and the court's resolution of the second and third causes of action seek the same relief….

James argues that the motion should be denied because: none of the documents referenced to in support of the motion are considered documentary evidence for the purposes of CPLR 3211(a)(1); and there are several fact issues which would be improper to dispose of on a motion to dismiss. James … contend[s] that the suspension "threw [their] life into disarray" and expressing concern about their ability to secure housing and a job during the suspension period, as well as postponing their post-graduate plans for an entire year. James also asserts that their face and name have been widely distributed because of the events discussed herein such that finding gainful employment has been difficult, and their mental health has suffered as a result thereof. James believes that they are being re-punished for livestreaming the meeting with CSSI because the video went viral….

To sufficiently plead that alleged discrimination was based upon membership in a protected class under the New York City Human Rights Law, a plaintiff must allege "circumstances supporting an inference of discrimination."

The complaint highlights certain public statements by Columbia; however, it does not allege that a Columbia employee made comments reflecting discriminatory animus toward James—such as during the January 9 CSSI meeting or the CSSI hearings, or in any of its written communications to James. Additionally, the public statement made by Columbia leadership regarding the encampment does not specifically name James.

The complaint also fails to allege that any student who was similarly situated to James, but did not share their protected-class status, was treated better than they were. James, who was on disciplinary probation leading up to the suspension, admits that Columbia suspended students involved in the encampment and fails to identify another student, who was also on disciplinary probation, whom Columbia declined to discipline….

The post Lawsuit by Khymani James ("Be Grateful That I'm Not Just Going Out and Murdering Zionists") Against Columbia Dismissed appeared first on Reason.com.

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[T]he State charged {the Deputy Director of the City of Milwaukee Election Commission, Kimberly D. Zapata} with misconduct in public office (acting in excess of lawful authority) and three counts of making a false statement to obtain an absentee ballot….

[T]hrough the "MyVote website," [Zapata] "fabricated three individuals who did not exist, … used those fabricated names to have military voter absentee requests sent to the municipal clerks in Shorewood, South Milwaukee, and Menomonee Falls," and then "had the absentee ballots sent to" the state legislator. Zapata wanted to "make a point that there is fraud in existence" and have the legislator "focus" on "actual true fraud[.]" {Per the trial testimony, the MyVote website is a public-facing voter portal available in Wisconsin, wherein voters can request an absentee ballot, view their voting records and registration information, look up their polling place, and view a sample ballot.} Zapata acknowledged using her work laptop and accessing a "voter registration database" that is "only available to the municipality employees" in order to obtain the legislator's address….

Prior to the fall 2022 election, Zapata became concerned about the process for requesting military absentee ballots. Because a person requesting a military absentee ballot on the MyVote website did not need to provide photo identification or be registered to vote to make the request, Zapata felt that the process was susceptible to fraud. Zapata raised this concern with her supervisor and with the Wisconsin Elections Commission, to no avail.

Frustrated with public criticism of her office and by conspiracy theories about election fraud, Zapata wanted "the truth to come out" about "actual problems" with elections. Using her work laptop in the early morning hours of October 25, 2022, she accessed the MyVote website and requested military absentee ballots in the names of three fake individuals: Holly Jones, Holly Adams, and Holly Brandtjen. Zapata looked up random home addresses in South Milwaukee, Shorewood, and Menomonee Falls, and assigned one to each fake name. She chose residences in South Milwaukee and Shorewood because she felt these areas had "subpar" municipal clerks who would not catch the fraud.

Zapata requested that each ballot be sent to the home of a state legislator because the legislator was "the most vocal election fraud politician" that she knew. To locate the legislator's address, Zapata logged into "WisVote," which is a statewide voter registration database only accessible to "employees who are responsible for administering elections." Zapata hoped that the municipal clerks would issue the ballots and that when the legislator received them, the legislator would "redirect … her focus away from … outrageous conspiracy theories to something that's actually real." …

The court concluded that the state had adequately shown that Zapata had "[f]alsely ma[d]e any statement for the purpose of obtaining … an absentee ballot" (Wis. Stat. § 12.13(3)(i)):

We agree with the State that "obtaining" … does not necessarily require that the person making the false statement intends to physically possess the ballot. Interpreting "obtain" broadly to include actual and constructive obtainment is consistent with case law interpreting criminal statutes governing possessory offenses, and it is consistent with the manifest purpose of the statute. Section 12.13 aims to protect elections from various kinds of falsifications and fraud throughout various stages of the election process. It would defeat the purpose of § 12.13 to allow individuals to do what Zapata did here: inject false ballot requests into the electoral system so long as the requestors did not direct that the ballots be sent to themselves or someone they knew….

Having construed the term "obtaining" to include constructive obtainment, we turn to Zapata's argument that she did not constructively obtain the ballots. Zapata asserts that she did not know or control the person to whom she sent the ballots, so she did not constructively possess or obtain the ballots.

[But t]he evidence demonstrates that by requesting the ballots, Zapata set off a series of actions she knew the ballots would be subjected to. She knew that by requesting the ballots, the ballots would be generated under the fake names that she provided. She also knew that the ballots, once generated per her request, would be sent to the address that she provided.

In other words, Zapata controlled both the names under which the ballots would be generated and the destination to which those ballots would be sent. She "knowingly had the power and intention to exercise dominion and control over" the ballots "through others" (i.e., via the election officials that create and send out absentee ballots), "thus establishing a nexus between" Zapata and the ballots. In our view, directing the creation and destination of the false ballots is "exercising control" over them. Because Zapata "exercised control" over the ballots, her conduct violated Wis. Stat. § 12.13(3)(i)….

The court also concluded that the government had adequately shown the elements of misconduct in public office:

Zapata argues that she did not act in her capacity as a public employee when she requested the absentee ballots, but rather, she was acting "as a concerned private citizen." … [A]cting in an "official capacity" requires a material connection between the public official's duties and powers and the forbidden act….

Zapata used her work laptop to request the absentee ballots, and she entered her employee credentials to access WisVote—an administrative website only accessible to employees administering elections—for the purpose of obtaining the address of the state legislator to whom she sent the ballots. Additionally, Zapata used her institutional knowledge to pick which municipalities to be the target of her fraud, believing that these clerks were "subpar" and would not catch the fraud.

Using City-issued equipment and credentials to access an employee-only database for the purpose of obtaining fraudulent absentee ballots from clerks that she believed to be subpar based on knowledge she accrued only because of her public office amounts to a "material connection" between the misconduct and the public office ….

Abigail Potts (AG's office) represents the state.

The post Requesting Absentee Ballots with Fictitious Names = Crime, Even if Ballots Are to Be Sent to Legislator for "Whistleblowing" appeared first on Reason.com.

Recent statutes and lawsuits have sought to restrict social media or video game design practices that supposedly cause some users to become "addicted." Are such restrictions consistent with the First Amendment?

This Article begins by asking what would happen if the same arguments were applied to religious practices (whether or not the arguments' supporters would seek to so apply them). Say some religious practice was viewed as causing emotional or financial harm—e.g., by leading some adherents to feel guilty about their sexuality, to distance themselves from family members, or to give substantial portions of their assets to the religious organization. And say the practice was viewed as stemming from the adherents' nonrational decisions and emotional vulnerability, coupled with the religion's fostering intrusive urges and compulsions through techniques of reinforcement and habit formation that exploited features of people's neurotransmitter systems.

I take it that even so, the Free Exercise Clause would generally preclude restricting those practices. Many religious people derive personal value from their religious beliefs. Religious practice is constitutionally protected. And people often value their own religiously motivated decisions very differently than how other people might value those decisions.

In a few situations, the harm to the religious observer may be so sharp and immediate—or the mechanisms of control may be seen as so obviously improper—that the law may indeed intercede. But any such intercession must be based on more than some general claim of "addiction" to religious beliefs, or assertions of emotional harm or modest financial loss. And that remains true as to minors' participation in religious practices as well as adults' participation, at least so long as the minors' participation is tolerated by parents.

The Article then argues that much the same analysis should likewise apply under the Free Speech and Free Press Clauses to the design of speech products. Here too, the supposedly addictive features can be valuable to many users, even if they are harmful to some others. The design of speech products is presumptively protected by the First Amendment. And people often value features of speech products very differently than other people do. The First Amendment should thus largely preclude restrictions aimed at rescuing people from their own supposed propensity to becoming addicted to features of speech, just as it would preclude restrictions aimed at rescuing people from supposedly addictive religious behaviors.

The post "Addiction to Constitutionally Protected Activity: Speech, Press, and Religion appeared first on Reason.com.

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A public figure, perhaps the world's most prominent public figure, whose actions and remarks routinely generate immediate global news coverage, sues a newspaper, perhaps the world's most prominent English-language newspaper, along with the world's largest trade book publisher and three authors. The plaintiff initiates in the Middle District of Florida an action for defamation arising from two articles and a book, researched, written, and edited in New York but published nationwide and abroad, including in the Middle District of Florida. The plaintiff, who resides in the Southern District of Florida but maintains a business presence in the Middle District of Florida, alleges that publication of the allegedly defamatory statements in the Middle District of Florida caused reputational and economic injury in the Middle District of Florida.

The court concluded that the case had been permissibly filed in the Middle District of Florida:

Under 28 U.S.C. § 1391(a)(2), venue is proper in any "judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." Section 1391(a)(2) "contemplates some cases in which venue will be proper in two or more districts," and "a plaintiff does not have to select the venue with the most substantial nexus to the dispute, as long as [the plaintiff] chooses a venue where a substantial part of the events giving rise to the claim occurred." …

The plaintiff claims that venue in the Middle District of Florida is proper and bases the claim on publication in the Middle District of Florida of allegedly defamatory statements {defendants distributed approximately 3,000 print copies of the allegedly defamatory articles in this district [and] … approximately 2,200 copies of the allegedly defamatory book "in or around" this district, [and] approximately 45,000 "unique online readers" in this district viewed the allegedly defamatory articles}, consequent reputational and business injuries in the Middle District of Florida, and a business presence in the Middle District of Florida. {The plaintiff is the cofounder of Trump Media & Technology Group, Corp., a media and technology company headquartered in Sarasota, Florida, and the plaintiff "was TMTG's majority shareholder at the time his claims accrued."} {To establish reputational and economic injury in this district the plaintiff alleges, "Defendants used their false and defamatory publications to disparage President Trump and impugn his reputation …. Defendants' false publications about President Trump also led directly to a precipitous decline in the stock price of TMTG, significantly injuring the President given his ownership stake."}

The defendants claim that venue in the Middle District of Florida is improper and base the claim primarily on the location of the "relevant journalistic activities" (the defendants' summary phrase), including researching, interviewing, writing, editing, and the like, almost all of which occurred in New York and the balance of which occurred in New Jersey. The defendants' claim is based on events that occurred before publication, that is, before the claim for defamation accrued. These "relevant journalistic activities" were not—either individually or cumulatively—themselves actionable as defamation (or for any other reason that appears) in Florida or New York or elsewhere.

Under Judge Tjoflat's governing logic in Jenkins Brick [the Eleventh Circuit precedent -EV], these "relevant journalistic activities" are not the events most directly, that is, most immediately and causally, connected to an actionable defamation (or, more exactly, a claim of defamation). Publication plus reputational and business damage are the events most directly connected to the alleged claim and, therefore, most determinative of a proper venue.

The Middle District of Florida is the largest district in the third largest state (behind only California and Texas and ahead of New York) in the United States. The argument that publication in the Middle District of Florida plus reputational and business injury in the Middle District of Florida—the events most directly connected to the plaintiff 's claim for defamation by the defendants, including the largest newspaper (that is not a specialized financial newspaper) in the United States and the largest seller of trade books—are not a "substantial portion" of the events directly resulting in the plaintiff 's claim for defamation is, to say the least, an untenable argument under Jenkins Brick and under Section 1391(a)(2), which since the 1990 amendment contemplates instances of proper venue in two or more districts. The Southern District of New York is a proper venue, the Southern District of Florida is a proper venue, and the Middle District of Florida is a proper venue. The plaintiff chose the Middle District of Florida, a choice to which the law tends to defer, absent an important, manifest, and imbalanced inconvenience to the defendant….

And the court declined to transfer the action to the Southern District of New York:

The defendants argue that under 28 U.S.C. § 1404(a) an order should transfer the action to the Southern District of New York. Under Section 1404(a), "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." The transferee court must have personal jurisdiction and subject matter jurisdiction and must offer a proper venue. The Southern District of New York is an eligible transferee, but "[t]he plaintiff 's choice of forum should not be disturbed unless it is clearly outweighed by other considerations." "Other considerations" include:

(1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.

The defendants argue that the convenience of nonparty witnesses strongly supports transfer. "The party seeking the transfer must support its motion by clearly specifying the key witnesses to be called and particularly stating the significance of their testimony." The defendants identify as key nonparty witnesses (1) "for the Apprentice Statements … President of NBC Entertainment Jeff Zucker and advertising executive Alan Blum"; (2) "for the Inheritance Statements … Mary Trump (who provided the underlying estate documents), trust and estate lawyer Jim Ledley, accountant Joel Rosenfeld, and Michael Bailkin … counsel for the New York City Mayor's Office of Lower Manhattan Development"; and (3) "for the Business Statements … Peter Goldmark, who served as the executive director of the New York and New Jersey Port Authority, former Trump Organization executives Barbara Res and Abraham Wallach, and environmental consultant Tim Miller." According to the defendants, Jeff Zucker, Alan Blum, Mary Trump, Jim Ledley, Joel Rosenfeld, Michael Bailkin, Peter Goldmark, Barbara Res, Abraham Wallach, and Tim Miller are in New York, are beyond the subpoena power of the Middle District of Florida and are likely "key witnesses" if the action proceeds to trial….

The defendants in the present case identify no physical obstacle impeding any nonparty witness's ability to travel to Florida. And although the defendants clearly identify the nonparty witnesses, the defendants fail to particularly state the significance of each nonparty witness's individual testimony. The defendants provide insufficient detail to determine, for example, the extent to which of each nonparty witness's individual testimony is cumulative or otherwise unnecessary. The defendants state that each identified nonparty witness is beyond the subpoena power of the Middle District of Florida, but transfer may be denied "where the movant does not show that the witnesses would be unwilling to testify, and that compulsory process would be necessary." The defendants fail to show that any nonparty witness is unwilling to testify or that compulsory process might be necessary.

Further, the inconvenience to nonparty witnesses is mitigated if, in an action such as this, the parties' robust financial means are more than sufficient to pay for witnesses' travel, lodging, and sustenance, and to present at trial by video recording the testimony of any witness unable or unwilling to attend trial. The convenience of the nonparty witnesses weighs only slightly, if at all, in favor of transfer.

The defendants argue that the convenience of the parties weighs in favor of transfer because the defendants and the defendants' employees reside in New York, New Jersey, and Washington, D.C. According to the defendants, "[i]f this matter proceeds to trial, their testimony will be required to decide actual malice." But the significance of convenience to witnesses "is diminished when the witnesses, although in another district, are employees of a party and their presence at trial can be obtained by that party." …

The defendants argue that the plaintiff 's choice of venue carries no weight because "the plaintiff was forum shopping," because "the selected forum has little to no connection with the parties or the subject matter," and because the plaintiff initiated the action "in a district other than his home district." "The plaintiff's choice of forum is generally a factor that heavily weighs against transfer."

The plaintiff does not appear to have engaged in unwholesome "forum shopping." Although the plaintiff selected a forum; every plaintiff in every action necessarily selects a forum. Although the Middle District of Florida is not the plaintiff 's home district, the Middle District of Florida is in the plaintiff 's home state and is near his home and the plaintiff maintains a business presence here and alleges that reputational harm and economic injury occurred here. Because the Middle District of Florida bears a substantial connection to the parties and to the plaintiff 's claim for defamation, the plaintiff's choice of venue heavily weighs against transfer….

Trump is represented by Alejandro Brito, Ian Corp, and Jalaine Garcia Brito, PLLC; Daniel Zachary Epstein (Epstein & Co. L.L.C.); and Edward Andrew Paltzik (Taylor Dykema PLLC).

The post Trump's Libel Lawsuit Against N.Y. Times and Penguin Random House Can Proceed in Florida, Rather Than N.Y. appeared first on Reason.com.

Plaintiff, proceeding pro se, initiated this lawsuit in February 2025, alleging federal copyright infringement against Defendants Taylor Swift [and others] …. Plaintiff is the author of two books that contain various poems—Dealing with a Chronic Illness: Vestibular Neuritis ("Dealing") and Fallen from Grace ("Fallen"), which Plaintiff alleges was later renamed Songs of the Unsung—together with a standalone poem, "Noah." Plaintiff concedes her books "are not presently being marketed," and pleads specific sales figures only for Songs of the Unsung (the renamed Fallen), alleging "approximately 300 copies" sold globally.

Sprawling twelve counts, Plaintiff alleges that a variety of Defendants' songs infringe her exclusive rights in various poems. To illustrate, Count I alleges that Defendants' song "The Man" (containing the lyric "I'm so sick of running as fast as I can/Wondering if I'd get there quicker if I was a man") infringes Plaintiff's poem "Ordinary Citizen" ("I'm running behind/You say its His word against mine") because both describe a woman working in a male-dominated office environment. Count X alleges that "The Great War" ("Diesel is desire, you were playing with fire") infringes "The Fire" ("Anger fuels our desire … I'm fighting fire with fire") because both use the metaphor of "desire as fuel and fire." Similar allegations populate the remaining counts….

All of Plaintiff's claims for works previously addressed in Marasco I [an earlier case filed by Marasco against Swift and many of the same additional defendants -EV] fail for the reasons articulated there. The Second Amended Complaint largely reprises Marasco I, alleging infringement of the same poems—including "Ordinary Citizen," "Whirlwind," "Scorpion," "Beams of Light," "Gaslight," "Innocence Lost," "Sky Tinted Water," "Devious Minds," "Stagnate," "Delusional Reality," "Invisible Matter," and "The Fire"—through the same categories of asserted similarity: basic ideas and themes (a woman working in a corporate environment, being "gaslighted," confronting adversity); ubiquitous metaphors (being "submerged" under water, "tears as weapons," "desire as fuel and fire," becoming "the rain/storm"); and isolated common words and short phrases ("tears," "running," "fire," "rain," "sky," "love," "invisible," "caged me," "flesh and blood," "it's time to go").

As this Court already explained in that related case, such content "amount[s] at most to ideas, metaphors, contexts, and themes—none of which is a proper subject of copyright protection under 17 U.S.C. § 501(a)." … "Ideas and themes are often the type of material that we have determined are not copyrightable." …. "Words and short phrases are not copyrightable, nor are ordinary phrases." …

To the extent the Second Amended Complaint adds a few additional allegations of infringement, none of those supplemental allegations serve to state a claim for relief. For example, three counts add a new allegedly infringing song—Count II ("I Can Do It With a Broken Heart"), Count III ("Mastermind"), and Count VI ("The Manuscript")—and Count XI adds a new poem, "Ingenue."

Each addition rests entirely on unprotectable content: the theme of "creative resilience" and the words "art" and "heart" (Count II); the concept of "people as equations" (Count III); a shared reference to musical connection (Count VI, comparing "Tears fell in synchronicity with the score" to "[w]e need to come together like musical notes to poetry"); and the common observation that leaves turn "gold" (Count XI). These are quintessential themes, concepts, and isolated words—exactly the kind of material copyright law does not protect.

James Douglas Baldridge and Katherine Wright Morrone (Venable LLP) represent defendants.

The post Judge Aileen Cannon Sends Taylor Swift a Slightly Belated Wedding Present—Involving Fire, Desire, Gaslighting, and More appeared first on Reason.com.

Trump v. Barbara is very long. The entire slip opinion totals nearly two-hundred pages. However, Chief Justice Roberts's majority opinion is stunningly short for the occasion. It stretches only twenty-six pages. Justice Jackson wrote a twenty-page concurrence that largely responded to Justice Thomas's dissent. Justice Kavanaugh wrote an opinion concurring in the judgment and dissenting in part that spanned ten pages. Justice Thomas's dissent, joined by Justice Gorsuch, stretches ninety-one pages. He left no stone unturned. Justice Alito wrote a solo dissent that stretched thirty-nine pages. Finally, Justice Gorsuch rounded out the pack with a solo dissent that was (thankfully) only three pages.

Reading through the entire opinion from start to finish is a daunting experience. I completed the task over the weekend (fittingly in the City of Brotherly Love on the 250th anniversary of independence).

Perhaps the hardest part of this decision is keeping all of the threads together. The Justices discuss different parts of the case in different sections in different orders, making it hard to remember who lines up where.

Here, I will offer something of a reader's guide to the opinion in a chronological fashion the majority and dissenting opinions. I break the cases down into eight primary time periods. I will use the Section labels from the opinions, except for Part V, where the Chief didn't use any subsections.

What stands out most is how quickly Chief Justice Roberts moved through each period, and how much time Justice Thomas dwelled on each. To illustrate the trend, I measured Roberts's opinions in paragraph-length, and Thomas's in page-length. I will have much more to say about this case. This is just a teaser.

Period #1: The English common law before independence

Majority: II-A (4 paragraphs); V (*17-*20)

Thomas: IV-A-1 (3 pages)

Alito: I-A (2 pages)

Period #2: The law in America between independence and the ratification of the Constitution

Majority: II-A (3 paragraphs)

Thomas: IV-A-2 (3 pages)

Period #3: The law in America between the ratification of the Constitution and Dred Scott

Majority: II-B (1 paragraphs)

Thomas: I-A (4 pages); I-B (8 pages)

Alito: I-A (5 pages)

Period #4: Dred Scott and its aftermath

Majority: II-B (3 paragraphs)

Thomas: I-C (5 pages)

Alito: I-B (2 pages)

Period #5: The Civil Rights Act of 1866

Majority: II-C (4 paragraphs); V (*20, *23-24) (3 paragraphs)

Thomas: I-D-1 (3 pages)

Alito: II-A (2 pages)

Period #6: The adoption and ratification of Section 1 of the Fourteenth Amendment

Majority: III (10 paragraphs); V (*20-*21) (2 paragraphs)

Thomas: I-D-2 (5 pages); III-A (7 pages)

Alito: II-B (9 pages)

Period #7: Understanding of Citizenship Clause from 1868 to Wong Kim Ark

Majority: IV-A (4 paragraphs); V (*21-22) (2 paragraphs)

Thomas: I-E-1, I-E-2 (10 pages); III-B (4 pages)

Alito - III (2 pages)

Period #8: Wong Kim Ark

Majority: IV-B (6 paragraphs); V (*24-*25) (1 paragraph)

Thomas: I-E-3, I-E-4 (7 pages); IV-A-3 (4 pages)

Alito - III (6 pages)

The post A Chronological Reader's Guide To The Opinions In <i>Trump v. Barbara</i> appeared first on Reason.com.

From Georgia Court of Appeals Judge Gobeil in Thursday's Sinclair, Inc. v. Amin; note that the other two panel members concurred only in the judgment.

Appellee Mahendra Amin, M. D., sued appellant Sinclair, Inc. d/b/a Sinclair Broadcast Group ("Sinclair") and Dawn Wooten for defamation after Sinclair aired a broadcast in which journalist Sharyl Attkisson interviewed Wooten about conditions at a detention center in Irwin County….

"[V]iewing the pleadings and affidavits submitted by the parties in the light most favorable to the plaintiff (as the non-moving party)" …, the record shows the following. On March 5, 2023, an episode of a television news program, "Full Measure with Sharyl Attkisson," was broadcast on Sinclair television stations. In that episode, Attkisson interviewed Wooten, a nurse who worked at the the Irwin County Detention Center ("ICDC"), who claimed that in 2020, female detainees at the facility reported undergoing "mysterious surgical procedures" that "they did not fully understand." After Wooten's initial inquiries went unanswered, Wooten worked with a whistleblower group to file complaints with various federal agencies. Wooten claimed that a number of sterilization procedures, including hysterectomies, ovary removal, and tubal ligation, were being performed on ICDC women in the custody of United States Immigration and Customs Enforcement ("ICE") without their knowledge or consent.

The episode also discussed eugenics and recounted forced sterilization procedures (throughout history) that were performed on various groups of women without their full or informed consent. In addition, the broadcast quoted language from a 2022 Senate committee report, entitled "Medical Mistreatment of Women in ICE Detention," with Attkisson stating: "A Senate committee in November concluded that 'female detainees [at the Irwin County Detention Facility] appear to have undergone excessive, invasive, and often unnecessary gynecological procedures.'"

Dr. Amin subsequently filed a complaint for defamation against Sinclair and Wooten, alleging that the broadcast was "of and concerning" him and contained false statements that accused him of performing mass hysterectomies on immigrant women housed at the ICDC that were not medically necessary and were performed without their knowledge or consent. He characterized the broadcast's statements as "convey[ing] to the average viewer that Dr. Amin was an evil doctor seeking to carry out a sterilization campaign on immigrant women detained at ICDC." Specifically, Amin challenged the following statements from the broadcast:

[Wooten]: They would leave, go get treatment, and they would return back to this facility to be monitored. They would talk about the incisions that they had had or would have on their abdomen laparoscopically, and they realized that there was invasive procedures that were done.

[Attkisson: "What procedures were they doing?"] [Wooten]: Hysterectomies, and tubal ligations and tubal removals, ovary removals, D & Cs.

[Wooten]: According to the records that were found and released, they were being sterilized without their consent.

[Attkisson: "How many women did you know of that this impacted?] [Wooten]: We're talking 30 to 50.

[Wooten]: What I saw was the inhumane treatment of human beings and lives being — decisions made for without consent.

[Attkisson]: A whistleblower who exposed alleged medical abuses of prisoners that evoke images of another era, when women deemed to be unfit, for whatever reason, were sterilized without their knowledge or with coerced consent.

[Attkisson]: But Wooten's most startling discovery was yet to come. It came when women inmates at the Irwin County Detention Center began approaching her, asking about mysterious surgical procedures they were getting that they did not fully understand.

[Attkisson]: She says a doctor was performing life-changing surgeries on the women that they say they didn't want or properly consent to.

[Attkisson]: So you're saying that physicians were sterilizing these women without their permission or unbeknownst to them?

[Attkisson]: To Wooten, she was seeing shades of that past with illegal immigrant women at the Irwin County Detention Center.

Dr. Amin, who completed his residency in gynecology and has practiced medicine in Georgia for over 35 years, provided gynecological care for detainees housed at ICDC. Dr. Amin averred that he only performed two hysterectomies on ICDC patients and both were medically necessary, and he stated that he did not perform tubal ligation on any ICDC detainee. He also maintained that all procedures performed on ICDC detainees must be pre-approved as medically necessary and that he obtained informed consent for each procedure he performed.

As part of his complaint, Dr. Amin noted that the Senate report had concluded that only two hysterectomies were performed, both medically necessary. That conclusion, however, was not mentioned in the broadcast. Notably, although the Senate report thoroughly discussed Amin's work in connection with detainees held at ICDC, the broadcast at issue did not mention him, or any physician or hospital affiliation, by name.

The court rejected Amin's libel claims, because the article wasn't "concerning the plaintiff" (as required by Georgia law and by First Amendment libel law):

["]To sustain an action for [defamation], the allegedly defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff. If the words used really contain no reflection on any particular individual, no averment or innuendo can make them defamatory. An innuendo cannot make the person certain which was uncertain before.["]

"A publication claimed to be defamatory must be [viewed] and construed in the sense in which the [viewers] to whom it is addressed would ordinarily understand it." Put another way, in considering whether a publication is defamatory as a matter of law, "we look not at the evidence of what the extrinsic circumstances were at the time indicated in the [publication], but at what construction would be placed on it by the average [viewer]."

It is undisputed that Dr. Amin is not named in the episode. The episode makes a single reference to "a doctor [ ] performing life-changing surgeries on the women that they say they didn't want or properly consent to." Immediately after this statement, Attkisson asks Wooten: "What procedures were they doing?" She then asks Wooten: "So you're saying that physicians were sterilizing these women without their permission and unbeknownst to them?"

Nevertheless, Amin contends the broadcast was "of and concerning" him because he previously had a practice in Ocilla, Irwin County, had treated ICDC detainees, and he had often been the only gynecologist in Irwin County—thereby he concludes that he is the only person the episode could be referencing. As noted earlier, "[i]f the words really contain no reflection on any particular individual, no averment or innuendo can made them defamatory" and "[a]n innuendo cannot make the person certain which was uncertain before." Further, although the trial court described that Amin "is the only known provider of gynecological care for women detained at ICDC," this information does not appear in Dr. Amin's affidavit. {Likewise, in his brief on appeal, Dr. Amin has not directed this Court to other instances in the record that would support the trial court's statement that he was the only known provider of gynecological care to women detained at ICDC.}

Under these circumstances, we disagree that Amin was ascertainable from the broadcast alone. It follows that … Amin cannot demonstrate a likelihood of success on the merits of his defamation claim ….

For lawsuits brought by Amin over other publications that had made similar allegations (and, as I recall, did mention him by name), see these three posts.

Jacquelyn Nicole Schell, Isabella Salomao Nascimento, and Anna Kaul (Ballard Spahr LLP) represent Sinclair and Wooten.

The post Libel Lawsuit Over ICE Mass Hysterectomies Claim Thrown Out appeared first on Reason.com.

From Administrative Law Judge David Watkins' recommendation June 26 in Sumter County School Bd. v. Thorton (Fla. Div. of Admin. Hearings):

On September 15, 2025, the School Board issued a letter notifying Ms. Thornton, a teacher at South Sumter Middle School, that the Superintendent was imposing a five-day suspension, without pay, for violation of School Board Policy 3139 and Florida Administrative Code Rule 6A-10.081—Principles of Professional Conduct for the Education Profession in Florida. The letter specifically alleged that Respondent shared a social media post "normalizing a lack of empathy" regarding the then recent assassination of Charlie Kirk. The letter further alleged that Respondent disparaged the superintendent and criticized Turning Point USA ("TPUSA") for an alleged lack of inclusivity….

Two days after the shooting, on September 12, 2025, Respondent re-posted a video to her Facebook page that did not celebrate his death, directly mention the shooting, or even state his name. Rather, the TikTok video, narrated by Jeff Guenther, LPC, communicated the message that people were entitled to their feelings—whatever those feelings might be, regarding the unfortunate event. The caption on the video states "It's about giving you permission to notice whatever you honestly feel or."

In the video, Mr. Guenther states the following:

It makes sense if you don't feel a deep well of empathy for someone who made a career out of refusing to show it for others.

I want to normalize that, because sometimes when a public figure dies, especially in a tragic way, people rush to say you have to be compassionate right now, don't speak ill of the dead. But if that person spent their life dismissing other people's pain—mocking it, minimizing it, even actively contributing to it—it makes sense that your empathy tank might run dry … that doesn't mean you're celebrating it, it doesn't mean you're cold hearted, it just means your compassion has limits and those limits are often shaped by how much compassion someone showed in their lifetime.

There's actually something psychologically healthy about noticing that boundary. You're not obligated to manufacture sorrow for someone who never extended any to you, your community, or people you care about. You can hold both—I don't wish this on anyone, and I don't feel sad about it either. That's not cruelty, that's honesty, and it feels really weird and uncomfortable to hold both of those in your body at the same time.

This isn't about telling you not to be compassionate, it's about giving you permission to notice whatever you honestly feel or don't feel and trust that it's valid.

By no stretch of the imagination can the above statement be construed as endorsing any form of violence, or celebrating the assassination of anyone. Nor does the video advocate, encourage, or "normalize" a lack of empathy for the loss of human life. At hearing, Respondent accurately characterized the intent of the video and her reason for sharing it:

A. I'll—like I—like I'm saying—I'll repeat it. I don't feel like this video is promoting a lack of empathy. It's just allowing or just acknowledging that people—that they can feel the way they want to feel. Period.

Q. Without any remorse, guilt, or feeling that they've violated a rule, correct?

A. Just—just because someone doesn't feel empathy—empathy for someone doesn't mean they are vocal about it. It's just a feeling.

Q. Okay. But sharing video is more than a feeling, correct? It's actually an assertion to a degree. I mean, how could it—isn't that correct?

A. Well, sharing a video—a video, to me, is just sharing of information.

Q. Okay. And a particular viewpoint, correct?

A. A viewpoint that I may or may not agree with or just—I feel like people just need to be aware of.

Q. Okay.

A. A lot of people were impacted in different ways from this. I—I personally feel empathy. Personally myself. I am also a widow. My husband also died by gunshot. So I do feel empathy in the situation. But I can't—I don't agree that empathy has to be forced on someone.

Respondent also made a comment, on someone else's post, that criticized the political organization TPUSA for lacking inclusivity. Superintendent Brown personally founded a chapter of TPUSA at the Villages Charter School and took Respondent's criticism to be "pretty inflammatory."

Superintendent Brown testified that he received "four or five" inquiries concerning Respondent's social media posts, in the nature of "Hey, did you see Ms. Thornton's post." He acknowledged that none of the inquiries were a "direct complaint." …

It is unclear if the staff members at Respondent's school, who complained about her posts to the Superintendent, saw it themselves or were reporting what they were told about it by other people….

Respondent is charged with violating rule 6A-10.081, specifically:

(1) Florida educators shall be guided by the following ethical principles:

(a) The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

(b) The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

(c) Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct….

Regarding rule 6A-10.081, the video posted by Respondent does not devalue the worth and dignity of any person, or Charlie Kirk in particular. Rather, the video commentator engaged in a nuanced discussion about the complex feelings some people, especially those who strongly disagree with his political views, may or may not have after his tragic passing. The video did not celebrate his murder, praise the violent perpetrator or otherwise engage in an inappropriate discussion about his death.

Moreover, the video was only shared with Respondent's friends on Facebook (most assuredly people who are familiar with her political beliefs) and not with the public in general. The video was posted on her own time and not during school hours. She did not share the video with her students, and there is no evidence that the posting of the video caused a disruption to the learning environment at the school. Nor was there any evidence that her colleagues or parents lost confidence in her ability to teach students.

Superintendent Brown's testimony was also unclear as to what he meant by his assertion that the video "normalized a lack of empathy" for Charlie Kirk, especially given his lack of recall regarding the contents of the video or its message. In sum, there is no evidence that Respondent failed to maintain the "highest degree of ethical conduct" or that she committed "misconduct in office" pursuant to rule 6A-5.056.

The same analysis applies to her posting of a terse comment criticizing TPUSA for a lack of "inclusivity." Whether her criticism has merit or not is a matter of political debate and not at all inappropriate for a teacher to discuss on her Facebook page with her friends. Moreover, there was no evidence that her comment regarding TPUSA caused a student or his or her family to feel unwelcome or unwilling to participate in the learning environment, or otherwise constitutes "misconduct in office." …

Respondent was exercising her protected First Amendment right to free speech, and in so doing, did not undermine the trust of the students and families that they serve. Because Respondent's posts involved a matter of public concern, and the School Board entirely failed to show any risk or actual disruption of its operations due to the posts, the Pickering-Connick balance tips entirely in Respondent's favor.

{At most, Superintendent Brown had to deal with a handful of inquiries about the posting, but nothing that indicated Respondent's effectiveness as a teacher was impaired. For example, there was no evidence that parents requested to have their students pulled from Respondent's classroom or that her colleagues refused to work with her. Thus, there was no evidence of any substantial impact upon the school district from her posts that would warrant discipline of any sort.} [Respondent's] suspension is insupportable, and her free speech rights were violated….

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sumter County School Board impose no discipline on Respondent, and compensate her for her back pay during the period of suspension….

Anthony R. Duran, Jr. (Tison and Duran, P.A.) represents the teacher.

The post Administrative Law Judge Recommends Reversing Suspension for Charlie-Kirk-Related Post appeared first on Reason.com.

Forefront Books published "Dreams Don't Die: The Story of a Man on a Mission to Inspire a Generation of Dreamers" …, the memoir of prominent real estate developer Izek Shomof …. Simon & Schuster distributed the book.

Over the course of his career, Shomof has been involved in many high-profile real estate projects in Los Angeles, including redeveloping several historic hotels and attempting to build an ambitious housing support center. These projects have generated consistent media attention and occasional controversy.

The inside flap of the book's dust jacket states, as relevant here, that "[i]t is the memoir of a man who had every opportunity to take unethical and often-illegal shortcuts but who instead chose the lesser-trod path of honesty and integrity" (the synopsis). The synopsis was also included in various promotional materials, including material published on respondents' websites….

Wizmann [Shomof's brother-in-law] sued respondents for violating the Unfair Competition Law (UCL) … and the False Advertising Law (FAL) …. Wizmann alleged that, by stating that Shomof "chose the lesser-trod path of honesty and integrity[,]" the synopsis falsely led consumers to believe that he is a "scrupulous[,]" "honest[,] [and] law-abiding businessman[,]" even though Shomof had been charged with three counts of felony receipt of stolen property … in the 1980s.

Wizmann sought monetary damages, civil penalties, and an injunction ordering respondents to (1) replace the dust jackets of "all copies of the [b]ook currently in circulation" and (2) delete the offending sentence from their websites….

[According to Shomof,] he pled nolo contendere to one charge of felony receipt of stolen property in 1989. After he completed a term of probation and paid full restitution to the property owner, the conviction was reduced to a misdemeanor. Shomof "did not share this story in the [b]ook" or with respondents, as he did not consider that the conviction "detract[ed] from the story of [his] success built on honesty and integrity." Shomof believed that Wizmann, who had filed two unrelated lawsuits against him in the 14 months preceding this suit, "sued [respondents] just to harass and embarrass" Shomof….

Wizmann [claims he] "was induced into purchasing the [b]ook out of curiosity regarding the veracity of" the synopsis, especially "how the [b]ook would reconcile the claims in the [synopsis] with the reality of Shomof's history." After "read[ing] the [b]ook in its entirety[,]" Wizmann found that "[i]t d[id] not address Shomof's arrest on felony charges[ ] and subsequent plea of no contest." …

Wizmann has not demonstrated that the synopsis is false or misleading to a reasonable consumer. The synopsis says that the book shows that Shomof "had every opportunity to take unethical and often-illegal shortcuts but … instead chose the lesser-trod path of honesty and integrity." Wizmann's contention that the 1989 conviction renders the synopsis false is unreasonable. One conviction occurring nearly 40 years ago does not render false the synopsis's summary of the overall trajectory of Shomof's life and career.

Moreover, the synopsis summarizes the content of the book, promising readers that the book contains the tale of "a man who had every opportunity to take unethical and often-illegal shortcuts but who instead chose the lesser-trod path of honesty and integrity." Wizmann alleges that Shomof's prior conviction contradicts that premise, but concedes that the book "does not address Shomof's arrest on felony charges[ ] and subsequent plea[.]" The synopsis thus truthfully advertises the book…. "[T]he principle motivating California's protection of advertisements adjunct to expressive works 'is the need to protect advertisers from tort actions that would otherwise threaten the ability of publishers to truthfully promote particular works' by accurately conveying the content of those works, even when that content is itself false." …

As respondents note, "[w]hat [Wizmann] truly is arguing is that … the [b]ook supposedly whitewashes Shomof's life story by failing to address [Shomof's conviction]. Put differently, his grievance is with the content of the [b]ook itself rather than the description about the [b]ook's content on the dust jacket." Wizmann's complaint reveals a glaring constitutional issue that he makes no attempt to address. Nor could he…. "[N]o one involved in modern jurisprudence can reasonably dispute[ ] [that] the content of … books is entitled to the full protection of the First Amendment." …

David Aronoff and Joshua Bornstein (Fox Rothschild) and Jerry Sparks (Sparks Law Firm) represent defendants.

The post Man Sues Alleging Brother-in-Law's Autobiography Book Jacket Summary "Whitewashes [Author's] Life Story" appeared first on Reason.com.

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(Yes: This is another post touching not only on legal issues but also on soccer. If you are one of the unfortunate few missing out on the "beautiful game" during the World Cup, you can just skip this post.)

Last week, I blogged about the straight red card suspension given to the "striker" (attacker) on the U.S. Men's National Team (USMNT), Folarin Balogun. I took the view that the red card for stepping on the ankle of his Bosnian opponent was incorrect—primarily because the simple act of leaping in a legitimate attempt to win the ball could not be viewed as reckless behavior endangering an opponent, even if Balogun ended up accidentally landing on the opponent's ankle. Ordinarily a red card in one game leads to an automatic suspension in the following game. In my previous post, I noted that (as described by various commentators), there was no possibility to "appeal" the apparently incorrect red card decision. I therefore assumed that Balogun would automatically miss the USMNT's next game against Belgium.

Early on Sunday, however, FIFA surprised me and most other observers by "suspending" the implementation of Balogun's suspension. As a result, Balogun will now likely take the field today with his USMNT teammates. Belgium's coach was furious, saying at a press conference Sunday morning: "I didn't know that at the World Cup, the 5th of July is actually the first of April—it's April Fools' [Day]."

Other criticism of the decision has centered around President Trump's lobbying for the U.S. team. Astute American soccer commentator Mark Ogden has argued that that FIFA's decision has hints of "the U.S. benefiting from special privileges. There is a process that appears to have been thrown in the bin for an outcome that suits the co-hosts."

I support FIFA's decision. I will concede my bias. The USMNT is my favorite sports team. I'm typing this post in a USMNT jersey (#15 Kyle Beckman, the standout defender from my home state of Utah who played for the U.S. during the 2014 World Cup.) But my reaction to FIFA's decision—and to the U.S. lobbying effort—focuses primarily on the outcome. To me, the central fact about FIFA's decision is that it is substantively correct. American fans—and soccer fans around the world—should get to watch a full-strength American squad battle Belgium today, rather than having Balogun sit because of his accidentally misplaced foot as he landed in a game last week. Because the parallels between soccer and the legal process are interesting, I write this blog post explaining my view.

To be clear, I don't claim specialized expertise in soccer's disciplinary rules. But I do claim some expertise, as a lawyer and a previous trial court judge, in applying legal provisions to factual situations. So let's follow the standard legal approach (hat tip to Justice Scalia) of turning first to the relevant text.

The basis for FIFA's suspension of the suspension is Article 27 of the FIFA Disciplinary Code. Entitled "suspension of implementation of disciplinary measures," Article 27 provides:

The judicial body may decide to fully or partially suspend the implementation of a disciplinary measure. By suspending the implementation of the sanction, the judicial body subjects the person sanctioned to a probationary period of one to four years. If the person benefiting from a suspended sanction commits another infringement of a similar nature and gravity during the probationary period, the suspension shall be revoked by the judicial body and the sanction enforced without prejudice to any additional sanction imposed for the new infringement. Disciplinary measures relating to match manipulation cannot be suspended.

Applying this rule to Balogun's situation, FIFA concluded that it is more just to allow Balogun to play in Monday's game than to suspend him. As someone who teaches criminal law, my mind immediately races to a criminal law analogy to describe what is happening. Essentially Balogun has been placed on probation for one year—and if he commits a similar offense ("another infringement of a similar nature"), then he has to serve the one-game suspension at that time.

The Royal Belgian Football Association responded to the suspension of the suspension by citing another provision in the same FIFA rules, Rule 66.4.  This Rule provides:

A sending-off automatically incurs suspension from the subsequent match. The FIFA judicial bodies may impose additional match suspensions and other disciplinary measures.

The Belgian argument highlights the word "automatically", taking the position that Rule 66.4 prevents FIFA from using Rule 27 to suspend the suspension.

As a lawyer, two problems immediately spring to mind about the Belgian argument. The first is what American lawyers would commonly describe as the "standing" problem—that is, does the claimant have a right to advance a legal argument? In the U.S., the law surrounding "standing" is well developed, if complex. In general, as well summarized by my co-blogger, Eugene Kontorovich, standing restricts the universe of persons who are entitled to challenge a (government) decision. Without diving into all the details of the doctrine, the essential question is what right does the claimant have to complain?

Applied to the Balogun situation, the question becomes what right does Belgium have to complain about FIFA's review of the consequences of a foul in the game against Bosnia? The USMNT coach, Mauricio Pochettino, alluded to this issue in his comments yesterday:

For me, there isn't much debate here, though I do understand Belgium's perspective and Rudi's [the Belgian coach's] point of view. I understand why people conflate issues—people always do, because there's often an agenda to mix things up—but in this case, I don't think it's right.

If anyone was harmed in this whole situation, it was the United States. Can anyone justify the idea that we weren't punished? I mean, playing 30 or 35 minutes a man down in a World Cup knockout match? It's not as if we're benefiting. No, no. There's no extraordinary gain we're getting out of all this.

To be sure, Belgium would prefer that the U.S. play perhaps it most important soccer game in several decades without one of America's key players. But the Belgium team is, essentially, a bystander to the issue of what is the proper disciplinary result for a foul called during the game against Bosnia.

Perhaps one could argue that Belgium is harmed by the fact that it was practicing this week on the assumption that Balogun would be unavailable, and thus they should have "standing" to complain about FIFA's suspension of the suspension less than 48 hours before the kickoff. That seems like a bit of a stretch. But even if Belgium can argue it should be heard on issues surrounding that earlier red card, the decisive issue should be whether it is just for Balogun to be suspended for the additional game against Belgium. And that issue must ultimately be assessed against the backdrop of whether the initial red card was proper.

In my earlier post, I explained why the decision was incorrect. And I pointed out that many knowledgeable, neutral, and expert commentators agreed— including former Premier League referee Mark Clattenburg here and former Select Group referee Andy Davis here.

USMNT coach Pochettino nicely described the central point about whether the red card was just:

My reaction is everyone who really loves the sport and trusts the integrity, we celebrate that decision [to allow Balogun to play]. We were punished enough against Bosnia to play with 10 men for 30 minutes, in a decision that was unfair. It's not because I'm the head coach of the USA…. I think 99.9% of people agree it was an unfair red card.

The decision [to suspend the suspension] is fair because it was never a red-card offense. Call [the red card] a mistake—whatever you want to call it—but there was an error, and the resulting sanction was excessive, especially for an action that was unintentional. Everyone—99.9% of the football community—has said it was an unfair punishment.

Moreover, the Belgian argument that the "automatic" suspension could not itself be suspended seems inconsistent with the structure of the FIFA rules. To be sure, the initial issuance of the red card "automatically" produces a one-game suspension, as explained in Rule 66.4. That additional one-game suspension becomes the default consequence of the red card. But under Rule 27, FIFA's disciplinary committee has the right to suspend that suspension. Rule 27 describes this result as "suspending the implementation of the sanction."

And allowing such a suspension of the implementation of the sanction is the best way to read the text of both provisions in a way that makes them both fully operative, a common approach to determining how to interpret text.

Note that the FIFA decision does not mean that Balogun could never serve a one-game ban. The decision just suspends the "implementation" of that sanction to see how things shake out over the next year. As FIFA explained:

In line with article 27 of the FIFA Disciplinary Code, the implementation of the match suspension is suspended for a probationary period of one year. If Folarin Balogun commits another infringement of a similar nature and gravity during the probationary period, the suspension shall be revoked and the sanction enforced without prejudice to any additional sanction imposed for the new infringement.

So that should about wrap things up, right? A mistake was made in issuing the red card, and FIFA corrected it—as it was explicitly allowed to do by Rule 27. Indeed, just last November, FIFA suspended a suspension of another player, Portugal's Cristiano Ronaldo, under Rule 27.

Not so fast, various folks have argued. These folks complain that President Trump complained about the suspension. As has been widely reported, Trump called FIFA's President, Gianni Infantino, asking him to review the suspension situation. This call from Trump, the counterargument goes, tainted the process.

One of the most eloquent explications of these counterarguments comes from my fellow Scalia clerk, Richard Bernstein, who read my earlier post and emailed me to explain the counterargument. I will quote his argument in full, so that readers have the  benefit of his thinking:

I agree with you that Folarin Balogun should not have received a red card. Indeed, I'd go further.  Change the FIFA rules so that a red card should generally not result in a next-game ban where, as here, it was not a last minute play, the foul was neither intentional nor reckless, the injured player did not leave the game, and neither the fouler nor his team has a history of lots of red cards.  All that applies to Balogun's foul.  He is as fine a person as a player.

But a core belief of Justice Scalia, with which I agree, was that to do the right thing for the wrong reason is wrong. Or as we were taught as children, the end doesn't justify the means. It is wrong for an international sports decision to be brought about by the means of private pressure from or influence by the political leader of a country. For President Trump to wield such political pressure or influence puts him in bad company: Russia, China, the former East Germany, and the most egregious, Germany in 1936.

Before the President's intervention in the World Cup, the world was falling in love with the U.S. for its hospitality, warmth, passion, food, etc.  And the U.S. was learning that it is essentially universal for all peoples to love their own country.  Every player is proud to play for his country and every fan is proud of his or her team and the nation it represents.  And every one was learning the joys of competing full bore on a level playing and accepting both victory and defeat with grace.  Think of Argentina and Cape Verde after that classic contest.

Now President Trump will have made many feel that once again, the U.S. does not play by the same rules as everyone else.  That the U.S. is a might makes right nation that prospers because it is a might makes right world.  After all, FIFA has apparently never suspended a next-game ban after an ejection within the same tournament, much less in response to a political leader's pressure and influence.  (FIFA used Rule 27 to lift the ban for Ronaldo's red card, but his red card was for a foul in a qualifying game, before the World Cup itself started.) That is no accident.  Until 1962, there was no next-game automatic ban after an ejection in the World Cup.  In the 1962 semi-final in the 83rd minute, a Brazil star committed a bad foul and was ejected. Back then, whether to ban an ejected player from the next game was discretionary and decided by officials before the next game. According to the BBC and AP, politicians and others wrangled Brazil's ejected player into the final and Brazil won.  The world was not pleased.  FIFA was forced to change its rules, adding the automatic next-game ban and setting up a process that was supposed to be immune from political lobbying.  And so it worked until President Trump's recent intervention.

Unfortunately, President Trump again has substituted a corrupt influence for institutions and norms.  Who lost this time?  We all did. Foreign commentary and reports already show the reversal of much of the prior harmony and mutual understanding between the US and the world--indeed, the world's admiration--that had emerged from this marvelous World Cup.  That is bad for the world and the U.S.  Our country could use some friends.

In my view, Bernstein's arguments are unpersuasive. In responding to Bernstein, I am not trying to engage in some broad debate about foreign policy or American presidential politics. I just think that FIFA's decision was correct and thus is good for the game of soccer.

For starters, Bernstein rushes to attribute FIFA's final decision to an effort to please to Trump. Perhaps he is correct to attribute that motive to FIFA. But it is important to understand that Trump's phone call was only one part of a larger American effort to overturn the unjust red card, following the normal process of pressing FIFA when an incorrect decision is made. Just as Trump's call has been reported, it has also been widely reported that U.S. soccer federation officials were, quite understandably, deeply engaged. As coach Pochettino described the broad U.S. effort:

[It was a] normal process and, of course, the federation for sure was working really hard. [U.S. Soccer CEO] J.T. [Batson] and the whole federation were working on trying to defend our situation and that's it. I wasn't involved. I was focusing on trying to prepare the team to face to Belgium working in different [areas], working in trying to be focused and to play tomorrow with our best, in our best condition.

So the U.S. Soccer Federation was pushing for Balogun to play, and President Trump joined in. But what if President Trump hadn't jumped in? What would have been the fair result? Bernstein concedes that Balogun's foul was neither intentional nor reckless and that Balogun is fine person and soccer player. Surely Balogun deserves to be treated fairly in the process. If the fair outcome is for Balogun to play, why should that substantively just result be disregarded because of a procedural concern about President Trump's phone call?

I also have a hard time agreeing with Bernstein that the lobbying effort by President Trump on the Balogun issue was somehow unprecedented. Sporting events and their results are important to citizens in many countries. It is hardly a novelty to learn that elected leaders push for results helpful to their national teams.

As one example, after France eliminated Ireland from 2010 World Cup qualifying following Thierry Henry's infamous handball, Irish Taoiseach Brian Cowen called on FIFA for a replay and raised the issue with French President Nicolas Sarkozy. Irish ministers also publicly pressed FIFA on "fair play," and the Football Association of Ireland later even sought admission as a 33rd team at the 2010 World Cup. FIFA rejected the effort, but reportedly paid the Irish Football Association $7 million not to pursue an appeal.

It is also interesting to think about how the U.S. sought to protect Israel from being expelled from the World Cup. Last year, the Trump Administration pressured FIFA to avoid having Israel banned from qualification, something FIFA was threatening to do because of Israel's war in Gaza. Here again, this example suggests that a call to FIFA was hardly unprecedented.

After President Trump made the call, we then get to the issue of attempting to disentangle motives and arguments that ultimately explain why FIFA reached its decision on Balogun. Here, like Bernstein, I would turn to Justice Scalia's jurisprudence for guidance. The Justice famously refused to rely on legislative intent to determine the meaning of a law, because of the indeterminacy that an inquest into motives inevitably generates. Justice Scalia's dissent in Edwards v. Aguillard, 482 U.S. 578 (1987), makes this point about the futility of determining a single "motive" with characteristic brilliance in a case involving legislation on education:

The number of possible motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education.

He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted 'yes' instead of 'no,' or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations.

To look for the sole purpose of even a single legislator is probably to look for something that does not exist.

So too with attempting to determine FIFA's sole motivation. Perhaps FIFA's disciplinary committee wanted to appease President Trump. But perhaps it simply wanted to do the right thing for soccer. Or perhaps the right thing for Balogun.  Or perhaps it wanted to avoid criticism for suspending one player (Balogun) but not another (Messi). Or perhaps a little bit of all of these things. It is better to focus on substance—was FIFA's decision correct?

Similarly, avoiding an inquest into FIFA's motivations also avoids an inquest into the motivations of Raphael Claus, the referee who showed Balogun the red card. According to press reports, Claus was named in reporting about a Brazilian Senate inquiry into match manipulation and sports betting after accusations involving red cards. However, available reporting also says those allegations were not proven.

At the end of the day, all FIFA did with Balogun was to leave the referee's past red card  in place but go on to determine that a one-game additional suspension was disproportionate punishment for the unintentional conduct involved. The additional suspension issue was never before referee Claus, of course, since the only issue Claus had jurisdiction to decide was whether to give a red card to Balogun during that game.

Bernstein is also forced to concede that FIFA previously used Rule 27 to lift the ban for Cristiano Ronaldo's red card this past November. Bernstein attempts to distinguish that precedent by arguing that Ronaldo's red card was for a foul in a qualifying game, before the World Cup itself started. True enough—but the World Cup generally follows the same rules used during World Cup qualifications. There is no reason for treating qualifiers differently than World Cup matches.

Focusing exclusively on the World Cup, in determining what is normal practice, the question immediately becomes what is the relevant comparator. As I see things, the salient question is whether FIFA has ever before faced a situation where a player was going to serve a one-game suspension in a World Cup elimination match for a straight red card for unintentional conduct? I've watched a lot of World Cup matches over the years and can't recall such a situation. And quick internet research suggests that Balogun's situation was unique.

It appears that there is no precedent for a player being forced to miss a World Cup elimination round game for a red card for unintentional conduct. Here are the arguably closest situations in recent years (according to my AI-assisted scan, which seems generally accurate, but I'd be happy to have any corrections or additions in the comments):

• Ronaldinho, Brazil v. England, 2002 quarterfinal (a straight red, but Ronaldinho left his foot in, so not an accidental/non-reckless suspension precedent).
• Thomas Muller, Germany v. Argentina, 2010 quarterfinal (Muller got a yellow for a ball coming off Messi's chest, but the suspension was for yellow-card accumulation and, in any event, by definition a hand ball involves intentional conduct).
• Thiago Silva, Brazil v. Colombia, 2014 quarterfinal (Silva got a second yellow for impeding goalkeeper David Ospina's kick; Brazil appealed but FIFA rejected it. Note that Silva's second yellow was for deliberate obstruction).
• Laurent Blanc, France v. Croatia, 1998 semifinal (Blanc was send off in the semifinal, but the referee determined that he raised his hands in a tussle with Slaven Bilic, who fell, and the incident involved clearly intentional conduct).
• Michael Ballack, Germany v. South Korea, 2002 semifinal (yellow-card suspension for a "tactical foul", which by definition is deliberate and deterrence considerations are important).
• Luis Suarez, Uruguay vs. Ghana, 2010 quarterfinal (red card for an infamous goal-line handball, a DOGSO [denial of an obvious goal-scoring opportunity], where deterrence issues are important).

Against this backdrop, Balogun's case appears unprecedented. And in an unprecedented situation, FIFA should be commended for carefully reviewing the situation and achieving what might be called "substantive justice"—that is, the right result. Requiring Balogun to serve an additional one-game suspension for an unintentional foul would be to miss the point that the procedural rules surrounding red cards are designed to make a soccer match fair by protecting players. They are not ends in and of themselves.

My friend, law professor William Pizzi, made observations along these lines in an interesting law review article entitled "Soccer, Football, and Trial Systems." Pizzi compared the European and American criminal justice systems to their favorite sports—European football (what we call "soccer") and American football. Pizzi found that Americans tended to overemphasize proceduralism. Here's Pizzi's conclusion:

Our American trial system reflects many of the cultural values encoded in the rules and traditions of professional [American] football: the worship of proceduralism, the attempt to  rationalize every aspect of the decision-making process, the distrust of spontaneous action, the heavy preference for managerial control over participants, and, above all, the daunting complexity of the rules that such a system requires.

But what is appropriate for a professional sport is not appropriate for a national trial system. A trial system does not exist for the purpose of entertaining the public or showcasing the skills of its legal players. A trial system must strive to achieve and keep in balance much more difficult and important objectives. No trial system is a strong system (1) if it cannot be trusted to acquit the innocent and convict the guilty with a high degree of reliability; (2) if it fails to treat those who come in contact with the system including victims and witnesses as well as defendants - with dignity and respect; or, (3) if it fails to make wise use of limited judicial resources. I question how well the American trial system is meeting any of these objectives.

Today trials in the United States are prepared for, officiated, and even reported on much like actual football games. More and more the media approaches important trials as if they were sports events, and the coverage of those trials on television is almost identical to that which is used for football coverage: it includes video replays, color commentators, sideline reporters who prowl the corridors of the courthouse, and plenty of Monday morning quarterbacking. That may make for a trial system that is entertaining and exciting, and one that certainly emphasizes winning and losing, but does that make for a strong trial system? I don't think so.

I think Justice Scalia would have found much to praise in Pizzi's article, and in particular its reminder that the overarching goal of procedural rules is to achieve just substantive outcomes. In contrast to American proceduralism, European football/soccer is called the "beautiful game" because it tries to emphasize athletic achievement. Pizzi made this point nicely in contrasting soccer and American football:

Part of the tremendous difference between the numbers of rules that govern soccer and football and the numbers of officials thought necessary to enforce those rules stems from the very different pace which is thought desirable for the two games. In soccer, there is a strong preference for not interrupting the flow of the game if possible and for letting the players play. Consequently, it is expected that minor infractions of the rules will be ignored and the referee is supposed to be in the background as much as possible. Because football is governed by a much more complicated set of rules that need to be enforced by a comparatively large "officiating crew," the pace of the game is completely different from soccer. The game is frequently interrupted by the fluttering of little yellow flags often followed by conclaves of officials trying to reach agreement on the appropriate ruling in the particular situation.

Unfortunately, the Video Assistant Referee (VAR) who produced the Balogun red card can be viewed as injecting American proceduralism into a free-flowing game that will not benefit from such stops and starts. At the very least, mitigating that proceduralism by suspending Balogun's suspension is a just outcome. Quibbles over the procedures that led to that outcome miss the main point. Let the beautiful game proceed … with all the best players from both teams on the field.

Update: I've corrected a few typos from the original post.

The post Balogun's World Cup Red Card Is Suspended -- Justly appeared first on Reason.com.

I had not been to Independence Hall and the Liberty Bell in more than a decade, and this would have been the first time doing so with my kids. Alas, the circumstances did not allow. It was over 100 degrees and the lines were never-ending. Also, Independence Hall did not permit any water past security. This was not going to work for youngins. In the morning, the line wrapped around the block. At 3:00 p.m., the line for Independence Hall was still nearly two hours long, so I did it solo.  Still, I have to think of our forefathers who toiled in that same heat, with the windows drawn at Independence Hall. We have little to complain about. Indeed, every time I visit Independence Hall, I marvel at how small the room is. The famous painting by John Trumbull was not intended to be an accurate depiction. There was barely enough space to fit 50-odd chairs.

We did spend some quality time at the National Constitution Center, which was (thankfully) air conditioned. They had free admission, and lots of activities for kids. We also took a walk to Betsy Ross's house, which I had not visited since I was a little kid. There was a kind actress playing the role of Betsy Ross. She demonstrated how Ross was able to make a five-pointed star by folding paper and making a single cut. It was very kid-friendly. Still, I didn't know that there is no actual documentary evidence that Ross made the first American flag in June 1776. ndeed, we don't even know if Washington ever actually visited Ross's house. The best evidence we have are stories that Ross and her family told years later. I The story is more complex than I remembered.

We also visited the National Museum of American Jewish History, which I had not been to before. I've read that Jewish museums throughout the world have had low attendance, so I made a point to patronize it. On Sunday afternoon, the museum was practically empty. I thought this museum did an excellent job telling the story of Jews in America from the 17th century to the present.

Back to Independence Hall. As I walked through the site, I thought of the litigation over the President's House, and the White House's recent critical report of the Smithsonian Institute. The report concluded:

The report identifies a broad pattern: the Founders are minimized, if not entirely excluded; traditional patriotic narratives are treated with suspicion, if not outright contempt; and the basic symbols and stories that once helped unify Americans are presented not as reasons for gratitude and inspiration, but as objects to be inherently questioned, dismantled, "problematized,"17 and reinterpreted to achieve ideological ends.

I could not agree more.

Let me give you two examples. At Independence Hall, the rangers handed out maps that highlighted different locations around town. Each location had a short blurb.

First, there was the Declaration House:

In 1776 Thomas Jefferson, accompanied by enslaved valet Robert Hemmings, rented two rooms on the second floor. Jefferson drafted the Declaration of Independence here. The house was rebuilt in 1975.

Why is it necessary here to mention that Jefferson was accompanied by Hemmings? Jefferson wrote what might be the most important document in world history, and that fact comes after who accompanied him. That fact is irrelevant and only serves to diminish Jefferson. And to what end? Everyone knows Jefferson owned slaves. It gets worse.

Second, there was the President's House Site:

George Washington and John Adams created the office of president while living and working at this site. Washington's large staff included at least nine enslaved Africans. Adams never owned slaves. Hired servants, possibly including enslaved African Americans, worked in the household.

Our first President lived in this House. He made countless decisions that affected the fate of the nation in this building. But all we learned is that Washington employed slaves. And John Adams, who opposed slavery, is still tainted with the charge that he possibly employed enslaved Africans. Whoever made this map was trying to advance an agenda.

I've given a lot of thought to Justice Jackson's dissent in Barbara. (Much more about that case in due course.) KBJ is so concerned about erasure. The bigger concern, in my view, is not erasure, but the deliberate distortion of American history. The Patriots who founded this country should be celebrated, not unduly denigrated. And every effort to push back against this brazen indoctrination is worthwhile.

The post In Philadelphia For The Fourth Of July appeared first on Reason.com.

In August 2020, the people of Tullahoma elected [Jenna] Amacher to a three-year term as an alderman. Amacher did not hide from controversy, whether in that role or outside of it. One example: She opposed a local redevelopment plan that many local leaders and residents supported. Another example: She took more conservative political positions than her fellow aldermen. Still another example: She posted a photo on Facebook of her and her sister-in-law at a "redneck Christmas party" posing in front of a Confederate flag with a sign that read, "[w]e go together like cocaine and waffles." Her political stances alienated some residents and officials, and the photo "shocked" Tullahoma Mayor Ray Knowis and "bother[ed]" City Administrator Jennifer Moody.

The Tullahoma charter requires aldermen to live within the City and provides that an alderman "vacates" her office by moving her residence outside of the City. In February 2021, Amacher sold her home in Tullahoma and moved into her grandfather's former house, which is located outside of the City. For about six months, she did not own any property in the City. In August 2021, Amacher bought an unimproved lot in the City, on which she planned to build a new house. But the plan did not come to fruition for some time. She started construction in the Fall of 2021, suffered delays due to a tornado, then experienced further delays due to the Covid-19 pandemic. Construction did not begin in earnest until early 2023. In the meantime, Amacher continued to live outside of the City, between at least February 2021 and March 2023, while remaining an alderman.

In February 2022, Amacher ran for a seat on the county commission and listed her house-free property in the City as her residence. The designation raised the suspicion of the county election commissioner who questioned whether Amacher lived in the district. The commissioner told Moody, the city administrator, about Amacher's uncertain residency status. In May 2022, Amacher lost the primary election for the county commission seat.

Even so, a local resident, Scott Van Velsor, collected 270 signatures to ask the district attorney to investigate Amacher's residency because she continued to serve as a Tullahoma alderman. In October 2022, with the support of several citizens, the district attorney sought a writ of quo warranto from a Tennessee state court, requesting Amacher's removal from office due to her lack of residency in the City. In December, the district attorney amended the petition to name Van Velsor as the relator and another Tullahoma resident, Jim Woodard, as the guarantor for a $500 bond to cover court costs if the petition failed.

The Tennessee court found Amacher's claims of living on the undeveloped plot of land in the City "unconvincing and damaging to her credibility." But that did not end the inquiry. Tennessee law, the state court explained, deems someone a resident of a city so long as they intend to return there. That legal test prompted this factual question: Did Amacher intend to move back to the City? On that score, Amacher did "just enough" by trying to build a habitable residence on her lot to "manifest her intent to" live in the City again. The court found that she remained a Tullahoma resident and denied the petition.

Amacher's victory did not bring peace. After the state court's ruling, Amacher sued the City, Knowis, Moody, Van Velsor, and Woodard for retaliating, and conspiring to retaliate, against her for exercising her free-speech rights under the First (and Fourteenth) Amendment. She added a state law malicious prosecution claim against the individual defendants….

To show that the defendants retaliated against her exercise of First Amendment rights, Amacher must establish at a minimum that she engaged in protected speech, that she experienced an "adverse action," and that opposition to her speech by the defendants caused the adverse action. Additional requirements come into play if the claimant bases her First Amendment retaliation claim on a legal action taken against her by the government. If the adverse action allegedly prompted by the claimant's free speech was a criminal prosecution or an arrest by law enforcement officers, for example, the claimant must show the absence of probable cause as an element of the claim.

At stake today is whether a no-probable-cause requirement applies in the context of the quo warranto petition that the district attorney filed against Amacher. We conclude that it is an element of the claim that the plaintiff must prove….

A common law malicious prosecution claim offers the best analogy to a quo warranto action. At common law, and today, a malicious prosecution claim challenges the "wrongful institution of legal process." That action in material ways parallels Amacher's claim that the defendants improperly initiated the quo warranto petition against her.

A quo warranto action forces an officeholder to answer (in English) this question: By what right do you hold this position? In the absence of a satisfactory answer—because, say, the individual does not meet the qualifications for office—the officeholder loses the position. While this civil action, if successful, would not lead to a criminal sentence, it would have serious consequences for the individual and for the community: removal of a democratically elected official from office. Whether it is misuse of the government's power to criminally prosecute someone or to unfairly remove them from office, both situations turn on government officials who misuse their power to take action on behalf of a community against an individual in the community….

At common law, as well as today, a malicious prosecution claim required the claimant to disprove that probable cause supported the allegedly retaliatory action. Amacher must do the same to succeed on her retaliation claim….

Another analogous common law tort, for what it is worth, supports this no-probable-cause requirement. The common law provided a claim based on "wrongful civil proceedings." Much like Amacher's First Amendment claim, this tort involved a complaint that the defendant baselessly sued the plaintiff for an "improper, malicious purpose." And much like malicious prosecution, this tort required a plaintiff to prove that the challenged lawsuit "lacked probable cause." …

All of this makes particular sense in a case in which a government official sues citizens on free-speech retaliation grounds. Surely those citizens have free-speech rights of their own, including the right to challenge on reasonable grounds whether an officeholder meets the requirements of office. Any other approach would enable Amacher—after taking a provocative stand on an issue of the day—to transform the First Amendment's "shield" for free speech into a "sword" an elected official could wield against political opponents.

Take today's setting. Without a no-probable-cause requirement, this lawsuit would allow an elected official to punish political opponents, including citizens, for exercising their First Amendment right to petition a state court. Who, it is fair to ask, is retaliating against whom in this situation? …

To establish a lack of probable cause, Amacher must demonstrate that the defendants did not have "a reasonable belief" that the quo warranto action had even "a chance" of succeeding…. [Amacher] has not shown that the quo warranto petition lacked probable cause….

The quo warranto petition sought to challenge Amacher's eligibility to serve as an alderman based on reasonable concerns about her residency. Although the petition failed, it presented a fair ground for disqualifying her, as the state judge acknowledged. Recall that the City's charter required Amacher to remain a resident of the City to retain her office. She sold her only home in the City, moved outside of the City limits, and did not own any property in the City for six months. Even when she bought a vacant lot, she did not begin meaningful construction of the home for a year and a half.

That "plodding effort" to build a house in the City, the Tennessee court found, was "just enough" to show that she intended to return. She added to the uncertainty about her residency in the interim by refusing to say where she lived and by dubiously claiming she spent a significant number of nights on the unimproved lot. The Tennessee court agreed that Amacher's lack of "transparency" about where she lived contributed to the "trouble" with establishing her residency.

These realities combine to show that the citizens and public officials could fairly doubt that she intended to return to the City. The quo warranto petition, though unsuccessful, presented a serious and legitimate reason for challenging her eligibility…. There was, in short, probable cause to support it. We do not, and should not, lightly penalize the efforts of citizens, or for that matter government officials, to challenge the bona fides of an elected official's debatable claim to office….

Even if probable cause pierces free-speech retaliation claims in this setting, Amacher adds, no probable cause in fact supported the quo warranto petition. She points out that Tennessee law does not define residency based solely on where one currently lives but also on one's future intent to return to a place…. [But u]nlike a college student staying in a dorm during the semester or a soldier deployed overseas, as she analogizes her situation, Amacher gave the people of the City reason after reason to doubt her future plans. The state court acknowledged as much when it found that Amacher had "damaged[ed] … her credibility" by her actions and statements and that the intent question came down to a close call in which Amacher had done "just enough" to maintain her residency and keep her seat. The evidence shows that the defendants had "a reasonable belief" that the petition had at least "a chance" of succeeding. Once the defendants' lawsuit is shown to be premised on reasonable grounds, it makes no difference whether the citizens' and public officials' decision to file the lawsuit was also motivated by free-speech, or for that matter political, retaliation….

A few words are in order about a few issues that we leave untouched. Amacher does not claim that any defendant dangled the quo warranto petition over her head to coerce her speech or manipulate her work on the city council. Such a claim might more closely resemble the common law tort of abuse of process, which may be filed in response to a claimant who has an improper "ulterior" motive in using a legitimate legal proceeding and who has no intent to prevail in it. In that setting, probable cause may not provide a complete defense, as it clearly does in a free-speech retaliation claim that more closely resembles a claim for malicious prosecution or wrongful use of civil proceedings.

Amacher does not claim that the public-official defendants unequally enforced the residency requirement, filing a quo warranto petition only against Amacher but not against other elected officials facing similar question marks about their residency. See Nieves ("[T]he no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.").

Amacher does not claim that the quo warranto petition emerged from an official policy to retaliate against her proved by indisputable "objective evidence." Lozman v. Riviera Beach (2018) (retaliatory arrest claimants do not need to disprove probable cause when a series of extraordinary circumstances converge).

Last reservation of all: We save for another day whether a fair-grounded effort to unseat an elected official amounts to an "adverse action" in the first place. The answer is not obvious in view of the twin American tenets that "legislative power … belongs to the people," and individual legislators have "no personal right to it."

McKenna G. Williams (Howell & Fisher, PLLC) and Daniel C. Headrick (Johnson Evans & Headrick, P.C.) represent defendants.

The post "Who, It Is Fair to Ask, Is Retaliating Against Whom in This Situation?" appeared first on Reason.com.

The primary issue before the Court is whether Defendants violated Title III of the Americans with Disabilities Act (ADA) by enforcing a footwear policy at its 7-Eleven store, despite Mr. Niederquell's protestation that he has an impairment preventing him from wearing shoes.

The Court concludes Defendants have not violated the ADA. Defendants' footwear policy is a legitimate health and safety measure that may be imposed despite Mr. Niederquell's alleged disability. Furthermore, Defendants have offered Mr. Niederquell remote purchasing options that adequately accommodate Mr. Niederquell's circumstances and afford him full and equal access to Defendants' goods….

Defendants' store sells food and beverage products packaged in glass, which are stocked on shelves in customer accessible areas.  The store also operates a self-service area, selling hot food and beverages.  The hot food items are prepared in a 500-degree oven and then put on heated trays in the self-service area at a temperature set between 165 and 175 degrees.  Spillage and breakage occurs regularly, often multiple times in an eight-hour shift.  Over recent years, the store has had an increasing problem with discarded street drugs and drug paraphernalia being left in public areas of the store. Store employees have also reported the presence of human feces, blood, urine and vomit on the floors.

Given the hazards posed by offering products on a self-serve basis, Defendants' store maintains a policy requiring all customers to wear shoes while inside the store since at least April of 2017….

The Court assumes, pursuant to the order bifurcating discovery, that Mr. Niederquell is disabled such that he is unable to wear shoes. And, as the parties agree, Defendants operate a place of public accommodation. So, the question on summary judgment is whether there are questions of fact as to whether Defendants engaged in discrimination by improperly imposing eligibility criteria for entry into the 7-Eleven store or by improperly refusing Mr. Niederquell's request for a modification of its policy requiring in-store patrons to wear shoes.

In analyzing the parties' dispute, it is important to note that an entity does not violate the ADA merely by imposing eligibility criteria on customers or by refusing a customer's request for accommodation. Title III's requirements are subject to exceptions. As recognized by the Department of Justice's implementing regulations and federal case law, a place of public accommodation may adopt eligibility criteria based on legitimate safety concerns. In addition, a covered entity may deny a request to modify its policies and procedures based on legitimate safety concerns….

Mr. Niederquell argues the only safety concerns that may be considered under Title III are ones posed to others. Mr. Niederquell claims that because his inability to wear shoes inside Defendants' store does not pose a health or safety risk to others, Defendants cannot enforce their footwear policy simply because Mr. Niederquell poses a risk to himself….

Mr. Niederquell correctly notes the language in Title III specifies that nothing in the statute requires a covered entity to make adjustments to their accommodations that would pose "a direct threat to the health or safety of others." But, importantly, Title III does not say a covered entity is prohibited from adjusting their accommodations out of concerns for the health or safety of the disabled person. This is a distinction with a difference. See Chevron v. Echazabal (2002) (In the context of Title I, Congress's explicit concerns about threats to others does not prohibit an employer from adopting policies necessary to protect the disabled person themselves). Indeed, it strains credulity to think that Congress intended Title III to empower disabled persons to force covered entities to allow them to undertake dangerous activities. Instead, consistent with DOJ regulations and governing case law, Title III allows a covered entity to adopt legitimate safety measures to account for the protection of both the disabled person and others….

Defendants point out the goods sold by their store pose hazards to all patrons, including broken glass, spilled liquids, discarded drug paraphernalia and the resulting risks of burns or lacerations or infection. These perils are increased if a customer is not wearing shoes. Given the realities of operating a 7-Eleven store, Defendants argue not only that their footwear policy is necessary, but also that Mr. Niederquell's requested accommodation—exemption from the policy—is unreasonable….

There is no indication Defendants adopted their footwear policy based on stereotypes about people with disabilities. Indeed, part of the problem in this case is Mr. Niederquell's professed disability is unusual and undoubtedly not anticipated by Defendants when they adopted the policy. The Court recognizes stores face the threat of significant tort liability as a result of slip-and-fall incidents. This risk is increased where, as here, a store offers self-service areas. It is entirely reasonable for a store to adopt policies, such as a footwear requirement, to protect the safety of customers and reduce the risk of liability….

James B. King and Christopher J. Kerley (Evans, Craven & Lackie, P.S.) represent defendants.

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Today is the 250th anniversary of the Declaration of Independence.

Over the years, I have written various posts and articles on the American Revolution and the ideals of the Declaration of Independence and the American Founding. Some have obvious continuing relevance to such issues as identity politics, nationalism, immigration, the role of slavery in American history, and more. Particularly relevant, given recent political developments, are the various pieces on the liberal universalist ideals of the Founding and their opposition to ethno-nationalism.

This post is an expansion of last year's similar compendium.

I hope the links are useful, and stir reflection on the principles of the Declaration. Unless otherwise noted, all of these pieces were published as posts on the Volokh Conspiracy blog. I put them in chronological order:

"The Declaration of Independence and the Case for Non-Ethnic Secession," July 4, 2009. Why the American Revolution was different from most modern independence and secession movements.

"Frederick Douglass on Immigration," April 10, 2014. A discussion of Frederick Douglass's great 1869 speech on how American ideals require openness to immigration.

"The Declaration of Independence and the Case for a Polity Based on Universal Principles," July 4, 2017.

"The Universalist Principles of the Declaration of Independence," July 4, 2019. Why it matters that the Declaration elevates universal liberal principles over racial, ethnic, and cultural particularism.

"The Case Against the Case Against the American Revolution," July 4, 2019. A rebuttal to longstanding claims - advanced by critics on both right and left - that the Revolution did more harm than good.

"Slavery, the Declaration of Independence and Frederick Douglass' 'What to the Slave is the Fourth of July?'", July 4, 2020. Douglass's famous speech sheds light on some of America's greatest evils - but also on the great good done by the Revolution and Founding. I think Douglass's speech may be the greatest-ever Fourth of July oration.

"Juneteenth and the Universalist Principles of the American Revolution," June 19, 2021. Why there is no inconsistency in celebrating both July 4 and the abolition of slavery. Indeed, the two are mutually reinforcing.

"Immigration and the Principles of the Declaration of Independence," July 4, 2021. This piece explains why the ideals of the Declaration and the Founding require free migration rights.

"Juneteenth Celebrates a Great American Achievement," June 19, 2023. An extension of some of the key points made in my 2021 Juneteenth post, linked above.

"The Declaration of Independence Promotes Individual Liberty More than Collective Self-Determination," July 4, 2023. The "liberty" the Declaration advocates is more about individual freedom than the power of majorities to rule over the rest of society, or the power of ethnic groups to rule "their" territory.

"The Case Against Nationalism," National Affairs, Winter 2024 (with Alex Nowrasteh). This article is a more general critique of nationalism. But it includes a section explaining why nationalism is inimical to the ideals of the Declaration and the Founding.

"Trump vs. the Declaration of Independence," July 4, 2025. Several items on the Declaration of Independence list of grievances against George III also apply to Trump today, most notably on immigration, trade, and deportation without due process. Like King George, he is "unfit to be the ruler of a free people."

"Gordon Wood on America as a "Creedal Nation" Open to all Races and Ethnicities," Nov. 22, 2025. My analysis of a speech by the greatest historian of the American Founding discussing the universal nature of the ideals of the Founding.

"1776 All-Stars: Why George Mason Is Extremely Underrated," Reason, July 2026. My discussion of the contributions of a crucial Founding Father.

"My House Judiciary Subcommittee Testimony Against the "Preserving a Sharia-Free America Act," Feb. 9, 2026. Summary of my testimony before the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government, explaining why discrimination against immigrants based on their speech and religion is unconstitutional and contrary to the ideals of the Founding. The testimony itself is available here.

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In September 2009 Jonathan Rose was involuntarily committed to a mental hospital in Indiana, suffering from a "psychiatric disorder." The record does not name the disorder or contain a detailed evaluation by a mental-health professional. He was released in January 2010 and has not been recommitted.

In 2022 Rose purchased several guns. He tried and failed to purchase others but was turned down because of his civil commitment. (A mismatch of birthdates in public databases seems to be responsible for his success on some occasions and failure on others.) In 2023 Rose was indicted for acquiring guns in violation of 18 U.S.C. § 922(g)(4), which prohibits anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution" from possessing firearms. He also was indicted under 18 U.S.C. § 922(a)(6) for lying to the gun dealers. Rose told each dealer that he had never been committed to a mental institution. United States v. Holden (7th Cir. 2023), concludes that § 922(a)(6) is compatible with the Second Amendment.

But the district court concluded that § 922(g)(4) is not, as applied to someone who is no longer mentally ill. It dismissed those counts of the indictment, leading to this appeal by the United States.

Other courts of appeals have reached divergent conclusions about the validity of § 922(g)(4). See Tyler v. Hillsdale Sheriff's Department (6th Cir. 2016) (en banc) (invalid except as applied to a currently dangerous person); Beers v. Attorney General (3d Cir. 2019) (valid), remanded with instructions to dismiss as moot, 590 U.S. 940 (2020); Mai v. U.S. (9th Cir. 2020) (valid). All of these decisions predate [the Supreme Court's decisions in Bruen, Rahimi, Hemani, and Wolford]. Between Rahimi and Hemani the Fourth Circuit rejected a facial challenge to § 922(g)(4) while reserving the possibility of an as-applied challenge. U.S. v. Gould (4th Cir. 2026). The issue is open in this circuit….

Heller [and later cases] flatly stated that "longstanding prohibitions on the possession of firearms by felons and the mentally ill" are presumptively valid…. But … the Justices' remarks concern people who are mentally ill, not people who used to be mentally ill. Yet § 922(g)(4) applies to anyone who ever was committed to a mental institution. Some people are committed but released after they recover; others are committed in error and released once the mistake is discovered. Neither set of persons is mentally ill today, but § 922(g)(4) applies to both categories.

The U.S. contends that § 922(g)(4) is valid even with respect to persons who were never dangerous or who have recovered. That approach is hard to square with Heller, McDonald, Bruen, Rahimi, Hemani, and Wolford. Rahimi rejected a challenge to § 922(g)(8) by stressing the significance of the defendant's current danger to others and the fact that the finding of danger had a time limit. And Hemani holds § 922(g)(3) invalid as applied to a casual drug user who has not been shown to be currently dangerous (or addicted in a way that implies inability to control one's actions).

The prosecutor cites historical examples of laws disarming lunatics and other mentally unstable persons but no examples of laws in the seventeenth, eighteenth, or nineteenth centuries disarming for life people whose mental problems were transitory. Hemani discussed several of the civil-commitment statutes from the 1700s and 1800s and deemed those examples not pertinent to a person who is not demonstrably dangerous. Every relevant historical practice disarmed a mentally ill person only during civil commitment or ongoing insanity….

Rahimi explains at length that someone who is now dangerous (or has recently been adjudicated dangerous) may be disarmed. The Court gave several historical analogs, which we need not repeat. It wrapped up: "Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others." But the Court's use of the present tense—in this language and throughout Rahimi—shows that § 922(g)(4) is problematic as applied to someone who is now mentally healthy, seems likely to stay mentally healthy, and therefore does not "present a credible threat to the physical safety of others." Rahimi also leaves open the question whether danger must be established by a recent adjudication—and, if so, how long ago counts as "recent." (Rahimi possessed a gun less than a year after a court issued an order finding him dangerous and forbidding firearms possession.)

Hemani reinforces the message of Rahimi. The Court observed that many users of illegal drugs (the drug in Hemani was marijuana) are able to control their behavior and are not dangerous, even when using drugs. The Court held § 922(g)(3) invalid as applied to such persons, while reserving questions about the treatment of addicts who cannot control their conduct or who have misused firearms while under the influence.

As the prosecutor sees things, a civil commitment creates at least a presumption of ongoing danger, even if the adjudication occurred more than a decade ago. That argument might carry force if the presumption were defeasible, so that evidence of current mental health put the prosecution to its proof. But § 922(g)(4) asks about former mental conditions, not current ones.

Like 32 other states, Indiana allows its courts to lift firearms disabilities of someone who is no longer in a mental institution—and, if a state court does this, federal firearms disabilities also are lifted…. The problem with Indiana's approach, from an applicant's perspective, is that the system is discretionary …. [It] requires the applicant to show harmlessness by "clear and convincing evidence" and, even then, does not entitle the applicant to relief. If the court determines that the "public interest" justifies disarmament, it may deny the application even if a person satisfies the criteria relating to danger….

Our conclusion that § 922(g)(4) cannot apply in all situations (again consider the predicament of someone committed in error or whose condition was transitory) does not necessarily help Rose, however. He was committed as dangerous in 2009 and, for all we know, remains dangerous today. After his release, he applied for Social Security disability benefits on account of his mental problems. That application was granted. Federal law requires a recipient of disability benefits to tell the Social Security Administration as soon as a qualifying condition changes. Rose has not told the Administration about any mental improvement, so we must assume that he is still afflicted by whatever mental condition led to the award of benefits.

But what is that condition? Why was Rose committed in 2009? Is his mental state in 2009 the sort of condition from which people recover (either naturally or with the assistance of drugs)? The record is silent on these topics. Indeed, the record is silent about almost all subjects that matter to the question whether Rose is mentally ill and dangerous today.

The district court did not hold an evidentiary hearing. Instead the court assumed that Rose is mentally healthy because the indictment and other charging papers do not assert otherwise. Yet why would such information be in an indictment or other charging papers? Indictments need not anticipate constitutional defenses. Someone who wants to contest the validity of a federal statute has at least the burden of raising factual issues and bears the burden of production, if not the risk of non-persuasion. Rose, though, did not produce any evidence—yet Hemani shows that it may be essential to evaluate current dangerousness case by case to resolve an as-applied challenge. That approach is as applicable to § 922(g)(4) as it was to § 922(g)(3) in Hemani.

Here's a recap of what we do not know:

1. Why was Rose committed in 2009? Ind. Code § 12-26-6-8(a) permits the involuntary commitment of someone who is dangerous or gravely disabled. Which of these applied to Rose? The state-court record has a judicial order of commitment with some boxes checked but no narrative analysis. According to the checked boxes, Rose was committed as dangerous to himself and as gravely disabled. His commitment was extended to allow "psychiatric stabilization." A physician told the court (through another checked box) that Rose had "a psychiatric disorder" but did not name the disorder or describe the risks that he might pose to himself or others. The papers from 2009 contain a few comments by physicians. Example: "Patient remains depressed with poor stress tolerance and judgement." These comments do not attempt to assess the degree of danger that Rose poses to others when not confined. Rose told a pretrial services worker in this federal prosecution that he had been diagnosed with bipolar disorder, anxiety, depression, and schizophrenia, but we lack medical documentation in either the state or the federal record. Rose may or may not have understood or correctly described the diagnoses made in 2009.
2. Does the medical profession consider Rose's conditions in fall 2009 to be lifelong, long term, or short term? Is the condition, whatever it was, treatable? Was it treated? Was the treatment (if any) successful?
3. Why was Rose released in January 2010? Medical improvement? A time limit under state law? Some other reason? We know that the hospital did not ask the court to authorize a long-term commitment under Ind. Code § 12-26-6-10(h), but the record does not show why.
4. Has Rose seen a psychiatrist or other mental-health professional recently? The answer should be yes, because obtaining a mental-health evaluation and following all of its recommendations is a condition of his pretrial release. But we cannot find in the record the results of that evaluation, which means that Rose's current mental condition is uncertain. (As we mentioned earlier, the district judge did not take evidence or make findings on the subject.)
5. If Rose's mental health depends on drugs, is he taking them? Rose was prescribed an antidepressant in 2009, but the state-court record does not show what effect the prescribing physician expected. (It does show, though, that Rose did not take the medication reliably while he was confined.)
6. What did Rose tell the Social Security Administration when applying for disability benefits? An award of benefits depends on being unemployable, which in principle differs from being dangerous. But danger to fellow workers makes a person unemployable, so the reason that Rose gave matters. He cannot tell the Social Security Administration that he is dangerous to others as a result of a mental problem while telling a court that he is not dangerous.
7. When awarding disability benefits to Rose, what findings did the Social Security Administration make about his mental condition?

Let us return to Rahimi's fundamental conclusion: "Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others." We cannot tell on this record whether Rose presented such a threat in 2009 when he was committed, in 2010 when he was released, in 2022 when he purchased firearms, or today. Rose bears at least the burden of production on these topics, after which the prosecutor may supply "individualized proof" of current danger….

Fed. R. Crim. P. 12(b) authorizes district judges to decide pretrial motions to address matters that can be resolved without a trial of the merits. Judges hold hearings, and make factual findings, all the time when necessary to resolve motions. Think of the routine hearings and findings in the wake of a defendant's motion to suppress evidence said to have been obtained in violation of the Constitution. A district judge has equal authority to take evidence, and make findings that do not resolve factual matters relating to the defendant's guilt or innocence, when the defendant asserts that the criminal law itself is unconstitutional as applied to him.

The district court's order dismissing the § 922(g)(4) charges is vacated. The judge has discretion on remand to give Rose and the prosecutor a chance to present evidence addressing our seven questions, now that Rahimi and Hemani have clarified the appropriate analysis.

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[T]he Advance Ohio Higher Education Act ("S.B. 1") … touches upon, among other things, the discontinuation of offices and orientation programs related to diversity, equity, and inclusion ("DEI") at public universities. Miami University is one such state university that has closed certain committees, entities, and programs related to DEI — both before and after S.B. 1 became effective.

A tenured professor now seeks judicial relief to reinstate these entities and programs on constitutional and statutory grounds. This request raises several questions, including the fundamental question of who decides which committees, entities, and programs a public university should maintain. As for the limited question presented here, the record does not demonstrate that Plaintiff—an individual professor unimpeded in his classroom teaching, scholarship, research, or publications—can proceed with his claims in federal court….

The Court starts by outlining what is at issue in this case and—perhaps just as importantly—what is not at issue. This is not a case involving allegations that the government is compelling particular speech. This is not a case in which a university itself brings suit to enjoin a law on institutional autonomy grounds or otherwise. This is not a case in which students allege constitutional violations. This is not a case in which a plaintiff has been threatened with disciplinary action for certain speech. This is not a case involving abridgment of a professor's speech in the classroom or on the campus green. Rather, this dispute centers around a professor who brings suit to enjoin a university to reestablish certain committees, programming, and events.

Two fundamental and intertwined questions set the stage. First, whose speech is truly at issue here? Second, as often embodied in various fields of the law, this case involves a quintessential question of "who decides?"—specifically, who decides which entities and programs a public university ought to maintain as a public university? …

[T]his case does not encompass a situation in which a university is stymieing a professor's speech within one of its programs or entities. Defendants, by Plaintiff's own admission, have not interfered with Plaintiff's in-class teaching, scholarship, research, or publication of DEI-related topics.

Rather, Plaintiff seeks a judicial decree to dictate the maintenance of specific programs and entities themselves. Certainly, a line of precedent confirms that the government may not command—at the threat of punishment—the particular speech of professors engaged in their core academic functions…. [But] Plaintiff fails to offer authority for the notion that his First Amendment rights include the ability to dictate how Miami University ought to determine which programs and entities to maintain as a university.…

Miami University's institutional discontinuation of the relevant programs and entities amounts to its own speech to "determine[ ] the content of the education it provides" in order to "promote its own policies" and mission…. "[W]hen the government speaks, … it is, in the end, accountable to the electorate and the political process for its advocacy." Put another way, the Constitution "relies first and foremost on the ballot box, not on rules against viewpoint discrimination" in such circumstances….

Here's a summary of the relevant provisions of S.B. 1:

[S.B. 1] commands that "the board of trustees of each state institution of higher education shall adopt and the institution shall enforce a policy" prohibiting, among other things, the following:

1. Any orientation or training course regarding diversity, equity, and inclusion [unless an exception applies];
2. The continuation of existing diversity, equity, and inclusion offices or departments; and
3. Establishing new diversity, equity, and inclusion offices or departments.

The statute further provides that each state university shall affirm and declare, inter alia, that:

1. its primary function is to practice, or support the practice, discovery, improvement, transmission, and dissemination of knowledge and citizenship education by means of research, teaching, discussion, and debate;
2. to fulfill the function described in [the preceding sentence], the state institution shall ensure the fullest degree of intellectual diversity;
3. that faculty and staff shall allow and encourage students to reach their own conclusions about all controversial beliefs or policies and shall not seek to indoctrinate any social, political, or religious point of view;
4. that it will not endorse or oppose, as an institution, any controversial belief or policy, except on matters that directly impact the institution's funding or mission of discovery, improvement, and dissemination of knowledge;
5. that the state institution will not encourage, discourage, require, or forbid students, faculty, or administrators to endorse, assent to, or publicly express a given ideology, political stance, or view of a social policy, nor will the institution require students to do any of those things to obtain an undergraduate or post-graduate degree; and
6. that no process or decision regulating conditions of work or study, such as committee assignments, course scheduling, or workload adjustment policies, shall encourage, discourage, require, or forbid students, faculty, or administrators to endorse, assent to, or publicly express a given ideology or political stance.

Moreover, the statute reads: "Nothing in this section prohibits faculty or students from classroom instruction, discussion, or debate, so long as faculty members allow students to express intellectual diversity." State universities that fail to comply with S.B. 1 may be subjected to loss or reduction of funding.

Elsewhere, the statute provides that "[n]o state institution of higher education shall provide or require training for any administrator, teacher, staff member, or employee that advocates or promotes any of the following concepts:"

1. One race or sex is inherently superior to another race or sex.
2. An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. An individual should be discriminated against or receive adverse treatment solely or partly because of the individual's race.
4. Members of one race cannot nor should not attempt to treat others without respect to race.
5. An individual's moral standing or worth is necessarily determined by the individual's race or sex.
6. An individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.
7. An individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.
8. Meritocracy or traits such as hard work ethic are racist or sexist, or were created by members of a particular race to oppress members of another race.
9. Fault, blame, or bias should be assigned to a race or sex, or to members of a race or sex because of their race or sex.

Here's plaintiff's connection to the matter:

Plaintiff Darryl Rice serves as a tenured and endowed associate professor of management for the Farmer School of Business at Miami University in Oxford, Ohio. For over a decade, Plaintiff has taught courses such as Diversity and Cross-Cultural Management, participated in Diversity, Equity, and Inclusion ("DEI") programming, and contributed to DEI-based committees at Miami University.

In April 2025, Miami University began to wind down certain programs and entities related to DEI. Specifically, the following entities were eventually discontinued: (1) the Office of Transformational and Inclusive Excellence, (2) the Farmer School of Business DEI Service Committee, (3) the Center for Student Diversity and Inclusion, (4) Miami Regional's Center for DEI, (5) the Department of Management DEI Service Committee, (6) Miami University's Across-the-Divide Conference, (7) the Office of Transformational and Inclusive Excellence Newsletter, (8) the Inclusive Excellence Faculty Fellows Program, (9) the DEI Mastermind Program, (10) the Diversity and Inclusion Networking Event, (11) DEI Professional Development Day, as well as other activities that Plaintiff had used to fulfill his service obligations. For purposes of Miami University's Tenure Track Guidelines, "service" obligations include "activities which contribute to the University's and/or the campus's mission," serving on committees, and providing continuing education programs if they are not already incorporated within the "teaching" category. Particularly relevant here, Plaintiff is expected to engage in service to his department and division….

The court likewise rejected plaintiff's equal protection and due process claims, as well as various statutory and common-law claims.

Ann Yackshaw of the Ohio AG's office represents defendants.

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The record in this case shows that, with increased enforcement activity and the resistance thereto, there came to be "increasingly common threats of targeted harassment of and retaliation against federal immigration officers for simply doing their jobs." In particular, it is shown by the affidavit of Eric S. Weiss, the Deputy Field Office Director for the United States Department of Homeland Security, United States Immigration and Customs Enforcement, Enforcement and Removal Operations ("ERO") division, that:

Individuals, including immigration activists and other members of the public, routinely photograph, film, and publish online ICE ERO enforcement actions to include the personal identities of ICE officers and other federal task force personnel. The photographs and films are posted online for the sole purpose of intimidating and harassing government employees and are directly used by members of local organized crime and transnational criminal organizations in serious and potentially deadly ways.

That activity is commonly referred to as "doxxing." According to Weiss, "ICE personnel regularly observe and overhear individuals shouting phrases such as 'doxx these people,' 'find out who they are and where they live,' and 'we will find out who you are and who your family members are.'" Weiss also avers that there is credible intelligence showing that Mexican criminals coordinating with domestic extremist groups:

have placed targeted bounties for the murders of ICE and CBP personnel in a tiered bounty system. Cartels have disseminated a structed bounty program to incentivize violence against federal personnel, with payouts escalating based on rank and action taken.

The bounty system includes $2,000 "for gathering intelligence or doxxing ICE officers," $5,000 to $10,000 "for kidnapping or non-lethal assaults on standard ICE/CBP" officers and agents, and up to $50,000 "for the assassination of high-ranking officials."

According to the record, "[d]oxxing of ICE officers/agents has also been encouraged across the web." For example, "ICESpy.org, ICEList.is, and ICEList.info" are sites that "perpetrat[e] the doxxing of ICE staff and contractors."

Also, some who oppose the current modes of enforcing the immigration laws take pictures of ICE officers' faces and run those pictures through facial recognition applications so that the pictures can be searched through social media. Experience has shown that, when an identification of the officer is thereby made, the search continues to identify the ICE officers' family members and to locate the homes of the agents. Those findings are then posted on the anti-ICE websites which urge harassment of the ICE officers and interference with them in the conduct of their jobs in enforcing immigration laws.

These documented practices occur all over the country. And, the record shows that ICE officers in Richmond have noticed that individuals camp out in the parking lots of the field office location in Richmond to take pictures of the ICE personnel and their vehicles and license plates and following them when they leave the building. The pictures and information are then posted on social media websites such as X.

Those practices are not confined to ICE officers. The Declaration of Matthew W. Alien, the Chief of Operations for the Drug Enforcement Administration ("DEA") tells that the DEA special agents who sometimes help enforce immigration laws, alongside ICE officers, have reported that members of the media and the public often take both still photos and videos of the agents which can be shown on media outlets or social media websites. Allen provides one example in which a DEA special agent image was posted on a social network [apparently BlueSky] with the caption "[t]rying to identify any of these FBI, Homeland Security, and ATF goons who invaded a Minneapolis community to kidnap and terrorize its members."

According to the Declaration of Justin Hargis who is employed by U.S. Customs and Border Protection ("CBP"), a part of the Department of Homeland Security ("DHS"), as the Executive Director for the Investigative Operations Directorate, who oversees approximately 500 criminal investigators charged with investigating, inter alia, threats to employees and doxxing involving DHS employees:

CBP, including OPR, has received a marked increase in reports of threats against law enforcement agents and officers and other CBP employees since January 2025 associated with increased operations and the public's perception of CBP's involvement in ongoing DHS enforcement initiatives.

Hargis also reports that along with the increased enforcement activity and the increased protests, there has been a significant increase in reported assaults on CBP officers and agents in fiscal year 2025 over those in fiscal year 2024 (457 to 856). Partway through fiscal year 2026, there have been 1,164 assaults of CBP officers and agents. Hargis reports that threats "increasingly take[ ] the form of posts and messages on social media, in group chats, and elsewhere that reveal personal identifiable information of CPB employees such as home address and personal phone numbers" (i.e. doxxing). "Modern technology and the current political environment have made it easier for bad actors to find and widely distribute personal information about [ICE] officers" and increasing efforts are made to intimidate the employees and to interfere with their ability to carry out their job responsibilities. Hargis gives many examples that illustrate that the doxxing, death threats, threats of kidnapping and assaults are very real in the lives of all ICE enforcement agents.

Like many law enforcement organizations, such as the DEA and the FBI, ICE officers often use surveillance techniques which will not work if the law enforcement officers visibly identify the organization(s) with which they are associated. Additionally, ICE officers, like agents in the DEA and the FBI, engage in undercover work where identification of their law enforcement affiliation would jeopardize both their mission and their safety.

Accordingly, "[w]earing facial coverings or otherwise protecting the personal identities of immigration officers can be essential to mitigating" the threats previously identified and to accomplishment of the law enforcement mission. The DEA also permits using facial masking and/or concealing the identity of its officers when conducting their operations.

As the Executive Director for the Investigative Operations Directorate at DHS explains, "the rise of doxxing, the advancement of facial recognition technologies, and the proliferation of bad actors on social media, has created an unprecedented operational risk for federal law enforcement officers." Thus, "[p]ermitting officers and agents to cover their faces or remove visible identifying information from their uniforms helps to reduce the risk of doxxing by limiting the ability of facial recognition technology to identify the officer or agent and by reducing the likelihood that the officer or agent's full name and other identifying information will be discovered by those seeking to dox CBP personnel."

Of course, those who oppose the actions of Government in enforcing the immigration laws are free to protest against the laws and the way they are enforced. But, the law does not permit protesters, when doing so, to endanger the lives or safety of the law enforcement officers who are enforcing those laws. Nor may the protesters interfere with the enforcement of the law.

Those prohibitions notwithstanding, protesters, from time to time, violate those limits on the right to protest. And, in so doing, they sometimes violate the criminal law and are subject to prosecution. More importantly for today's case, law enforcement agencies are permitted to take measures to protect the lives and safety of their officers and to eliminate or reduce the adverse effects on enforcement of the law that ensue endangerment to officers who are tasked with enforcing the law.

And, so it was that the practical realities of enforcing the immigration laws prompted federal authorities responsible for enforcing the nation's immigration laws to authorize their officers to use masks to conceal the identity of the officers so that they can be protected in the performance of their jobs (and thereafter) and so that they can effectively and efficiently perform their jobs. In like fashion, removing organizational identification from their clothing further facilitates those objectives, protection and operational effectiveness.

Virginia attempts to meet the showing made in the declarations submitted by the United States by relying on the Declaration of Scott Schuchart, a consultant who asserts that he has general expertise in the field of immigration enforcement and law enforcement policy based on his work within the Department of Homeland Security and his practice of law in private practice after having left government service. Schuchart agrees that the routine use of identity-concealing masks and removal of visible individual identifiers during public-facing immigration enforcement was not standard ICE practice before 2025.

Shuchart does not refute the substance of the declarations offered by the United States that show increase in doxxing, threats, assaults, or the bounty system. Nor does he take issue with the adverse effects on enforcement of the law described in those declarations. Rather, he offers solutions other than those adopted by the federal immigration authorities. And in his view officer-safety concerns can be addressed through "written policies, supervisory risk assessments, officially issued equipment, and limited exceptions for undercover, surveillance, tactical, medical, and other sensitive circumstances, rather than ad hoc disguises left to officer discretion."

To begin, that conclusion misstates the practices and policies of ICE. It is true that there is discretion not to use masks and not to remove identifiers in circumstances, depending on the situation to be confronted by ICE officers when enforcing the immigration laws. That discretion is not a basis to discount the need to wear masks or remove identifiers when the situation calls for it. And, in any event, the permitted discretion enables the federal officers to respond to real-time conditions, some necessitating identity concealment, some not. Moreover, Schuhart does not explain how written policies, supervisory risk assessments, and officially issued equipment would have any effect on reducing the risks and safety concerns that he acknowledges regularly attend the efforts of ICE officers in enforcing the immigration laws.

To the extent that Schuhart expresses the opinion that the declarations filed by the United States "do not show that routine masking or withholding of unique identifiers is necessary across ordinary public-facing enforcement operations," that is a matter to be decided by the Court and Schuchart's opinion is not helpful to the finder of the fact. To the extent that Schuhart's opinion is that "ad hoc masking and lack of visible agency or individual identifiers can increase public-safety risks by creating confusion, increasing the risk of impersonation, impeding oversight, and escalating encounters," that is a matter that falls within the discretion of the federal authorities charged with enforcing the law.

As a general proposition, the Court does not credit Schuchart's testimony. Much of it is ipse dixit. In any event, the Court finds that Shuchart's reasoning and conclusions are ill-thought out, presented in conclusory fashion, and are not really documented. They are not helpful to the fact finding task of the Court or to understanding any issue in the case.

His opinions on the quality of the evidence offered by the United States … are of no help to the finder of the fact because they are speculative and really are based on a lack of his admitted clear understanding of what is being discussed. Likewise, … Schuchart expresses the opinion that he is "unaware of any officer safety or privacy reason to fail to display a badge number or similar identifier, even in circumstances where an officer's own name could present some risk of exposure." The fact that he is unaware actually disqualifies him from expressing a credible opinion. Moreover, he generally ignores the evidence of doxxing and the effect thereof that is set forth in the affidavits submitted by the United States. To the extent that he opines that the wearing of masks enables imposters to act, his opinions reflect the weighing of factors pertinent to the policy decision to authorize the use of masks and identifying uniforms. Those decisions belong with the policymaker, here, the federal government….

Schuchart says that "it is hard to see how doxxing from publicly-available facial recognition software is different in kind from other evolving risks to officers and agents, which are dealt with through policy, application of risk-management standards by supervisors, issuance of appropriate body armor, and other ordinary law enforcement management tools." That opinion is vague. It does not identify the other "evolving risks" and it utterly ignores how doxxing is unique in and of itself and how its risks are multiplied by the facts shown in the declarations submitted by the United States.

In sum, Schuchart does not help Virginia at all. The Court credits the testimony offered by Hargis and Weiss and the other submissions made by the United States and does not credit Schuchart.

The post Judge's Conclusions About Risks of Identification for ICE Officers appeared first on Reason.com.

On May 20, 2026, citing concerns that federal law enforcement officers were "undercut[ting] basic expectations of accountability, sow[ing] fear and confusion, and erod[ing] the public trust," Governor Abigail Spanberger signed the Mask/Identity Law. The Mask/Identity Law makes it a misdemeanor [with some exceptions] for a "law-enforcement officer" to "wear a facial covering that conceals, obscures, or otherwise covers his face while such law-enforcement officer is engaged in the performance of his official duties." A "law-enforcement officer" includes both state and federal law enforcement officers….

The court concluded that the law likely couldn't be applied to federal officers; that result seems correct to me, given the precedent limiting state attempts to control federal officers' performance of their jobs:

The United States argues that the Mask/Identity Law directly regulates ICE's enforcement of the federal immigration laws. The United States relies heavily on the decision in U.S. v. California (9th Cir. 2026). The Ninth Circuit's analysis focused on California's mandate of "visible display of identification" for law enforcement. As the Ninth Circuit correctly explained, there is a direct regulation of the government where a state law, "lays hold of federal officers in their specific attempt to obey orders and requires qualifications in addition to those that the [federal] Government has pronounced sufficient." {The district court found that the mask component of California's law discriminated against the Federal Government. That finding was not appealed.}

In Johnson v. Maryland (1920), the Supreme Court held that a federal postal service employee could not be convicted of violating a state law that required drivers in the state to have a state driver's license because doing so would "lay[ ] hold of" employees and require additional qualifications the Federal Government did not have for its own employees. When so doing, the Supreme Court distinguished state laws like driver's license requirements from a "general rule[ ]" that "incidentally" might affect "the mode of carrying out the employment" (citing "the mode of turning at the corners of streets" as an example of a permissible law). Applying, Johnson, the Ninth Circuit concluded that the California identification requirement "requires qualifications in addition to those that the [federal] Government has pronounced sufficient." In other words, California added requirements for federal officers to follow while conducting law enforcement activities, and thereby regulated the federal activity.

In U.S. v. Virginia (4th Cir. 1998), the Fourth Circuit found invalid a similar kind of state law that sought to regulate the FBI's use of private contractors by imposing hiring requirements beyond those that had been set by the FBI. Such additional requirements do "not merely touch the Government servants remotely by a general rule of conduct; [they] lay[ ] hold of them in their specific attempt to obey orders and require[ ] qualifications in addition to those that the [federal] Government has pronounced sufficient."

And, the same is true here. The Mask/Identity Law requires that federal law enforcement officers satisfy additional requirements placed on them by Virginia—identification requirements, and masking requirements—which are not required under federal law, and which the federal authorities specifically say they need not meet. That offends the principle of intergovernmental immunity that forecloses application of the State law here.

Virginia argues that intergovernmental immunity "is violated only when a state law forces the federal government to fundamentally alter or abandon its operations, not when it merely affects the manner in which federal employees carry out their duties." But, the cases on which it relies for that contention do not support it. Both Geo Grp. v. Newsom (9th Cir. 2022) and Geo Grp. v. Inslee (9th Cir. 2025) relate to state regulation of Federal Government contractors, not the Government itself. As Newsom and Inslee discuss, the state may regulate contractors more than it may regulate the Government directly.

Virginia also cites Texas v. DHS (5th Cir. 2024) for its argument that a state law that incidentally affects immigration enforcement is valid under the Supremacy Clause. That decision does not help Virginia. To begin, there was no state statute at issue there. Instead, Texas sued DHS for common law trespass and conversion, and APA violations, following damage done by DHS to concertina wire on Texas' state property. The Fifth Circuit rejected the Government's state regulation argument because Texas was acting as a private proprietor, not as a regulator. And because Texas did not "seek to control how Border Patrol agents carry out their duties," Texas had not violated intergovernmental immunity. In fact, Border Patrol officers cut the wire to allow the passage of migrants, not to conduct border enforcement. Nor did the DHS Border Patrol officers cut the wire to access any land that it could not otherwise access. In other words, Texas' suit did not seek to control any activity in furtherance of federal law enforcement activity because the Border Patrol officers did not cut the wire in furtherance of their operations.

Virginia appears to argue that the Mask/Identity Law is generally applicable and that, like Border Patrol officers in Texas v. DHS, the wearing of masks by federal law enforcement officers is not acting in furtherance of their duties in enforcing federal law. To that end, Virginia points out that there is no federal policy that requires officers to wear masks or a written policy that gives ICE officers discretion to conceal their identities. But, the facts here are not at all like those in Texas v. DHS most importantly because, the claim in Texas v. DHS was not based on a state regulatory law, but upon common law trespass and conversion causes of action that could be maintained against a private citizen who had cut the wire. Like traffic laws about how to turn at a corner, the Texas claim was based on a generally applicable rule—no one could cut wire on Texas property. The only exception to that general rule was if the cutting occurred while a law enforcement officer was acting in pursuance of his duties, which, in Texas v. DHS, was not the case.

Here, in contrast, ordinary citizens are not allowed to engage in law enforcement activities. So, the state law here "does not regulate conduct that any ordinary citizen could perform."

Virginia also argues that, under the Constitution, states retains robust police powers, and that ensuring accountability, public trust, and safety are firmly within Virginia's police power. It is correct that, under the Constitution, Virginia retained a police power that allows her to regulate the conduct of her citizens and her law enforcement officers. But, Virginia cites no authority that would permit her to exercise her police power to regulate the constitutionally delegated federal power to enforce the federal immigration laws. Nor was the Court able to locate any authority to support such a proposition.

Finally, Virginia argues that the conduct of ICE's enforcement of the federal immigration laws while masked and while not wearing identifying garb or badges creates dangerous conditions that the Mask/Identity Law will remedy. That may or may not be correct depending on the circumstances presented during the enforcement of the federal law. But that argument is addressed to the wisdom of the federal policy. And settled law establishes that federal, not state, authorities make the policies that animate the enforcement of federal immigration laws.

Alessandra Faso, Alexandra Schulte, Gerard Mene, and Tiberius Davis (DoJ) represent the government.

The post Virginia Law Banning Law Enforcement Officer Masks Blocked as to ICE appeared first on Reason.com.

Mike Huckabee … is a Baptist minister, the former Governor of Arkansas, a two-time presidential candidate, a New York Times best-selling author, a nationally syndicated radio and television host, and the current United States Ambassador to Israel.

Between April and June 2024, his name, image, and likeness were used in three different advertisements to endorse cannabinoid, or 'CBD,' products on the Facebook social media platform …. One of the advertisements reported that Huckabee was leaving his then-job as a television show host on Trinity Broadcasting Network, a Christian-based television network, to "[p]ursue [a] [g]reater [p]urpose," which was the promotion of CBD products. In another advertisement, Huckabee appeared to "open[ ] up about his health problems and the miracle that helped him turn his life around," which was the use of CBD products.

Another advertisement contained a link, which if clicked, opened what appeared to be, but was not, the Fox News website. That linked webpage had an article with Huckabee's name, image, and likeness reporting that he was leaving his television show due to health issues from an autoimmune disease, and that "[a]s a God-fearing Christian," he recommended "CBD [as] the future of medicine in America," since it was "more effective than similar offerings from … 'Big Pharma' Companies." Each of the advertisements was made by a third party without Huckabee's permission, and Facebook was paid to feature those messages to its users.

The advertisements were a commercial success: after viewing them, "numerous fans" of Huckabee purchased the CBD products. Huckabee learned of the advertisements in or around May 2024, and Facebook removed them from its platform in June 2024. This was not Facebook's first experience with CBD advertisements that had misused the names, images, or likenesses of other public figures. It had previously hosted similarly unauthorized CBD advertisements depicting media personalities Laura Ingraham, Jeanine Pirro, and Sean Hannity, and news outlets reported on those instances.

Huckabee sued under Arkansas's Frank Broyles Publicity Rights Protection Act of 2016, which exempts social media platforms from liability so long as they lack "actual or constructive knowledge of the unauthorized commercial use of a person's name, image, or likeness." He pointed to these items as sufficient to allege a plausible claim of such knowledge:

• Meta sells advertisements;
• Meta allows advertisers to pay more to popularize those advertisements;
• Huckabee is a nationally recognized celebrity;
• Huckabee "has been a lifelong opponent of marijuana and its derivatives—i.e., CBD";
• Meta hosted inaccurate CBD advertisements with Huckabee's unauthorized name, image, or likeness;
• In one of those advertisements, Meta hosted a fake 'FoxNews.com' link;
• Meta approved the advertisements;
• Meta has approved CBD advertisements with fake endorsements from other media celebrities since at least 2021; and
• Meta's approval and maintenance of the Huckabee advertisements was with actual malice or, at least, with reckless disregard to their truthfulness or accuracy.

And the Third Circuit concluded that Huckabee indeed adequately alleged constructive knowledge:

As a baseline, the advertisements are premised on a development that Huckabee, a public figure and "lifelong opponent of marijuana and its derivatives—i.e., CBD," is now endorsing CBD products. While such a stark change of heart can be convincing, in the context of an advertisement, it also raises questions about the legitimacy of the changed position. Those doubts, by themselves, are not enough to infer that Meta had constructive knowledge of the misuse of Huckabee's name, image, or likeness.

The original complaint tries to bolster that inference by also alleging that Facebook previously hosted similar, fraudulent CBD advertisements using the name, image, and likeness of other media personalities, and that news outlets reported on those instances. That helps, but even the combined effect of those allegations does not cross the plausibility threshold.

Most critically, however, the original complaint states that one of the advertisements displayed on Facebook's platform linked to a website falsely purporting to be a Fox News article. That bogus link, when coupled with the unusual association of Huckabee and CBD and the prior fraudulent CBD advertisements on Facebook, suffices for allegations that Meta was plausibly "aware of facts or circumstances" from which the advertisements' misuse of Huckabee's name, image, or likeness was "apparent."

Note that Third Circuit precedent (Anderson v. Tiktok, Inc. (3d Cir. 2024)) takes the view that right of publicity claims are excluded from § 230 protection under that statute's exclusion for intellectual property claims, so that's likely why the court reached the Arkansas right of publicity claim.

The post Mike Huckabee's False-Advertising-Related Case Against Meta Can Go Forward appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

Ilya Somin has already covered much of the Trump v. Barbara territory in his posting here on the VC a few days ago [available here], and I agree with everything he writes, including his terse summary: "The 6-3 decision was right, and a contrary ruling would have had horrific results."

I'll assume the basic framework of the case is familiar to you all.  If not:  The Citizenship Clause of the 14th Amendment says that anyone "born . . . in the United States and subject to the jurisdiction thereof" is a US citizen. The case turns on the meaning of those five italicized words: "subject to the jurisdiction thereof". Trump's Executive Order (#14160 [available here]) says that individuals born here whose mothers are present in the US "unlawfully" are not US citizens.  He asserts that this does not violate the Citizenship Clause because those individuals are not "subject to the jurisdiction of the United States" within the meaning of that phrase – at least, within the meaning of that phrase in 1868, when the Citizenship Clause was added to the Constitution.

Plaintiffs, needless to say, disagree, as does a majority of the Court.

Having now read through the six different opinions,*

*Roberts for the Court, Jackson concurring, Thomas dissenting, Alito dissenting, Gorsuch dissenting, Kavanaugh concurring in the result and partially dissenting. The entire set is available here.

a couple of points struck me as highly unusual and noteworthy.

In particular, Justice Kavanaugh's separate opinion – concurring (in Part I) in the Court's judgment (Executive Order 14160 is invalid), dissenting (Part II) on the underlying rationale for that invalidity – is an extremely interesting piece of judicial work, well worth a careful reading.

Justice Kavanaugh votes to invalidate Trump's Executive Order because, as he says, it "contravene(s) a federal statute." What statute, you ask? The Immigration and Nationality Act, 8 U.S.C. §1401(a), which "mirrors the text of the Fourteenth Amendment," providing that "All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

I don't know about you, but up until the moment that I read Justice Kavanaugh's opinion, I had not registered that there was a statutory claim in this case in addition to the much-talked-about constitutional claim.  But there it is.

As most of you are aware, the Court has a rule – or, more precisely, a prudential practice – of not reaching constitutional issues in cases that can be disposed of on statutory grounds. Kavanaugh says: that's what we can and should do here.  Individuals born to mothers here illegally are "subject to the jurisdiction of the US," at least within the meaning of that phrase as it is used in the statute. The Executive Order is, therefore, invalid because it contravenes that statutory command. Case over.  Whether individuals born to mothers here illegally are "subject to the jurisdiction of the US" within the meaning of the Constitution's Citizenship Clause is a separate question which the Court need not, and should not, address.

He reaches the conclusion that the Executive Order contravenes the statute this way:

1. In 1898, in the case of US v Wong Kim Ark (169 US 649), SCOTUS construed the phrase "subject to the jurisdiction of" as it was used in the Citizenship Clause of the 14th Amendment. The Court held that the Clause stated "the fundamental rule of citizenship by birth" that prevailed at common law, and excluded from birthright citizenship only persons in certain narrow categories recognized at common law as being "exempt from the jurisdiction of this country": the "children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory" and "children of members of the Indian tribes." All others born in this country are citizens at birth.
2. The Immigration and Nationality Act (8 USC 1401) was first enacted in 1940, and has been amended several times since.
3. We can presume that Congress was aware of our authoritative construction of "subject to the jurisdiction thereof" in Wong Ark Kim when it enacted the statute.
4. Congress' use of the identical five word phrase in the statute can be taken to mean that it was incorporating the Court's construction of that phrase into the statute.
5. And if that's what "subject to the jurisdiction of" the US means in the statute, Executive Order 14160 directly conflicts with it and must be invalidated.

Nice!

It's pretty neat and tidy, or so it looks to my eyes; Kavanaugh calls the analysis under that statute "straightforward," and I think he's correct.  It's the right result – the Executive Order is placed in the Trashcan. It leaves the complicated constitutional question for a later case where the Court has to decide it in order to dispose of the case.

And what makes Kavanaugh's interpretative move even more interesting is that he thinks that Wong Kim Ark was wrongly decided and should be overruled![1]

So his position amounts to saying that we should apply an (incorrect) reading of the constitutional text to the statute because Congressional intent is the touchstone for interpreting federal statutes, and Congress was using our (incorrectly-derived) construction of the phrase when it enacted the statute, and it has never revised it since..

I'm not aware, at least off the top of my head, of another case that presents this kind of inverted decision-making structure. It's a wonderful illustration of the principle that the exact same words may mean one thing in the 14th Amendment and another thing in a federal statute. Context and history matter. Determining what the statutory phrase means requires that we determine Congress' view of what it meant in 1940, not what the "public understanding" of that phrase may have been in 1868. Wong Kim Ark's construction of the Constitutional phrase, whether correct or incorrect, was surely what Congress intended the words to mean in the 1940 statute.  Congress meant these words to mean what we had (wrongly) said the Constitution says.

And here's what I think is perhaps the most unusual feature of all:  Not one of the other five opinions pays any attention whatsoever to Kavanaugh's proposed resolution of this case. They either ignore the existence of this statute altogether, or treat is as completely irrelevant to the analysis of plaintiffs' claim, giving it only a handful of cursory mentions.[2]

Nobody responds to Kavanaugh's polnt, or explains, even if only in a brief dismissive footnote, where Kavanaugh gets it wrong, and why they are ignoring this statute and deciding this case on constitutional grounds.

I find that most peculiar.

And insofar as the Court doesn't explain why it is ignoring the statute, we get to speculate about it.  My guess is that the other Justices are embarrassed by their obvious and rather unseemly over-eagerness to decide the constitutional issue, and they are hoping that if they ignore Kavanaugh's opinion nobody will notice what they're doing.  [Other ideas? Please deposit them in the Comments below]

[1] Justice Kavanaugh (and, by extension, the entire Court) could have stopped there.  The matter can be disposed of entirely on statutory grounds. Case over.

He doesn't, however, stop there - though at least he has the good grace to (sort of) apologize for going on to reach the constitutional question:

As revealed by the Court's opinion with its detailed account of history and precedent, and by the weighty and thoughtful dissents, the constitutional issue is far more complicated than the statutory issue. After reading those scholarly opinions, one thing seems evident: The constitutional issue is not straightforward, much as we might want it to be. That is another reason why, in my respectful view, the Court should have decided the case on the narrow and straightforward statutory ground.

In any event, because the Court addresses the Constitution, and because I respectfully disagree with its analysis of that highly consequential issue, I too will briefly address it. [emphasis supplied]

In Part II of his opinion, he joins the dissenters (Thomas, Alito, Gorsuch) in asserting that the constitutional phrase does not mean what the Court said it means in Wong Kim Ark, (i.e., that the Citizenship Clause grants all children born here, other than those in the very narrow exceptional categories, US citizenship). I will be commenting on that part of the Barbara opinions in a separate blog posting.

[2] Roberts' opinion for the Court mentions it just once, in the first paragraph, merely to note that the statute "uses the same language" as the 14th Amendment. And you can search the opinions yourself for "1401" to see the other references to the statute, if you want to check my claim that all of them are "cursory."

The post Some Thoughts on the Court's Opinion(s) in the Birthright Citizenship Case appeared first on Reason.com.

The American bald eagle--our nation's national bird and symbol--is doing well. Populations have been expanding for years, and are now approaching the levels estimated for the founding era.

Many policymakers, pundits and professional environmentalists want to credit the Endangered Species Act for the success of eagle recovery efforts. But try as they might, it is hard to find much evidence that the ESA (as opposed to other conservation laws and recovery efforts) did much good, for reasons I explain in the latest issue of PERC Reports, published by the Property & Environment Research Center in Bozeman, MT.

The biggest factor in the eagle's recovery was almost certainly the banning of DDT for most uses. But this was done prior to the enactment of the ESA, under a different law (and by the EPA, not the Fish & Wildlife Service, the latter of which administers the ESA). The eagle also received more targeted protection from other laws. The bald eagle was officially removed from the endangered species list in 2007, and since then populations have continued to soar without the ESA's protection.

There's more, but those are reasons to read the article. It concludes:

Americans should be pleased that bald eagle populations continue to expand. The growing number of bald eagles is a conservation success story. But given the act's longstanding and widespread record of failing to promote species recovery, we should be careful before attributing that success to the Endangered Species Act.

[ And, yes, for those curious, I took the picture that accompanies this post.]

The post The American Bald Eagle Is Back - But Don't Credit the Endangered Species Act appeared first on Reason.com.

An excerpt from Openden v. Kennedy, decided Tuesday by Judge Adam Abelson (D. Md.):

In June 2024, the Centers for Medicare and Medicaid Services (CMS) distributed a video internally to its employees as part of a "Coffee With" series. The June 2024 episode was an interview with Ronza Othman, the director of the EEO Compliance Group within CMS's Office of Equal Opportunity and Civil Rights. In the video, Ms. Othman, who is an attorney who happens to be blind and was holding a white cane, describes her hobbies, the challenges and opportunities of serving in a role like hers, and other aspects of her approach to her job.

Plaintiffs in this case worked for CMS at the time and are Jewish. They have sued the Secretary of the U.S. Department of Health and Human Services in his official capacity ("Defendant" or "HHS"), contending that the video constituted "severe, pervasive, and unwelcome harassment" on the basis of national origin and religion. They do not take issue with the content of the interview but rather with a scarf that Ms. Othman was wearing during the interview that both Plaintiffs and Ms. Othman have described a keffiyeh. Plaintiffs do not take issue with Ms. Othman wearing a keffiyeh as such, but rather focus on an image on it that includes a Palestinian flag, a map, and a hand with two fingers raised. Plaintiffs contend that they perceive the image as "advocating for the murder and slaughter of persons of Jewish heritage and faith, as well as the destruction of Israel."

HHS vigorously disputes that characterization, or the reasonableness of that perception. But for current purposes the Court need not wade into those disputes because for Plaintiffs' hostile work environment claim to proceed, they must allege either (1) that Ms. Othman was Plaintiffs' "supervisor" or (2) that after being put on notice of the allegedly harassing behavior HHS took "'no prompt and adequate remedial action to correct it.'" Plaintiffs' allegations do not allege facts that would satisfy either standard.

{Defendant also asserts that at minimum Plaintiffs' claim based on religious-based discrimination should be dismissed because "Plaintiffs have set forth no facts that would support the conclusion that the alleged harassment occurred because of their religion." The Court need not and does not reach that argument for partial dismissal because, for the reasons explained herein, the complaint is subject to dismissal on other grounds. As explained below, the Court also need not and does not reach the question of whether the conduct alleged rises to the level of "severe or pervasive" as required to make out a hostile work environment claim.}

Plaintiffs do not contend that Ms. Othman wearing a keffiyeh would have rendered the video offensive. Instead, Plaintiffs' claim hinges on an image appearing at the two ends of the scarf. ECF No. 1 ¶ 10 ("During the video, Ms. Othman was wearing a keffiyeh which displayed a symbol of violence against Jewish persons."). It is that image that Plaintiffs claim rendered the interview "severe, pervasive, and unwelcome harassment." …

The image appears to be of a Palestinian flag, a map of Israel/Palestine (i.e., of Israel including the Palestinian territories), and a hand in front with the flag with two fingers raised. The hand is colored red. The parties vigorously dispute the significance of the hand: Ms. Othman stated that she understood the image to be "a peace sign" and stated that when she purchased it "[t]he shop carried keffiyeh with peace signs in various colors." Plaintiffs, on the other hand, allege that they perceived it as "a symbol of red hand, which advocates for violence, including murder, against Jewish persons and the denial of the right of Israel to exist." They allege that a red hand with two fingers raised is not a peace sign but rather "glorifies the murder of Jewish persons for their national origin and religion."

On June 6, three days after the date that Plaintiffs allege the video was disseminated, Plaintiffs along with other CMS employees circulated an open letter to CMS management. The letter described Ms. Othman as "wearing a scarf bearing the pattern of a keffiyeh depicting a Palestinian flag over the shape of the map of Israel and a red hand that has become symbolically associated with gruesome acts of violence and bloodshed." The letter went on to acknowledge that CMS policy "is broader than the legal definition of harassment" and prohibits "any comment or conduct that disparages, denigrates, or demonstrates hostility or aversion towards any person (including applicants for employment) that could reasonably be interpreted as harassing, offensive, or inappropriate in the workplace," including through "dissemination of offensive written or pictorial material."

Plaintiffs described Ms. Othman's "choice of attire" as "deeply disturbing, offensive, and appalling" particularly because she was appearing in an official CMS video "while serving in her official capacity as the Director of the EEO Compliance Group." They also stated that they considered her "choice of attire" as "deter[ring] those who are offended by her actions from safely seeking EEO guidance and counseling."

In that letter, Plaintiffs acknowledged, "We have recently been informed that the video has been removed, and we appreciate leadership's prompt action." They stated, however, that they "strongly feel that accountability requires that additional action be taken," to "ensure that CMS continues to be a place where all employees feel safe and respected, especially by those whose job it is precisely to do so in the first place." …

"[T]he existence of unwelcome conduct, based on an employee's race or sex [or religion or national origin], that is severe or pervasive enough to create a hostile work environment, is not on its own enough to hold an employer liable." To sue an employer for a hostile work environment, an indispensable element is that the conduct at issue is "imputable to the employer." The specific standards for that element depend in part on "the status of the alleged harasser," i.e., whether or not the alleged harasser was a "supervisor" for imputation purposes, a term that has been defined narrowly in the caselaw. Where an alleged harasser was a "supervisor," the employer "may be vicariously liable for its employees' creation of a hostile work environment." Where the harasser was not a supervisor, a different standard applies, and focuses instead on whether the employer had "actual or constructive knowledge of the allegedly harassing conduct," and took "'no prompt and adequate remedial action to correct it.'" …

"In Vance [v. Ball State Univ. (2013)], the Supreme Court resolved a circuit split and defined 'supervisor' for purposes of imputed liability under Title VII." It held that a supervisor is an individual who has been empowered "to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" In adopting that standard, the Supreme Court expressly rejected a competing theory, which had been adopted by some circuits, that "tie[d] supervisor status to the ability to exercise significant direction over another's daily work."

Plaintiffs do not allege that Ms. Othman had any authority "to take tangible employment actions against [them]," as required by Vance. Plaintiffs themselves allege that Ms. Othman was an official in the Office of Equal Opportunity and Civil Rights, and none of them allege that they worked in that office or otherwise reported to Ms. Othman….

[I]t does appear reasonable to infer that a person in a position of authority within an agency-wide EEO office, like Ms. Othman, can exercise some authority over the terms of employment of individuals outside her specific office, including, as Plaintiffs articulate, by "investigating and making determinations about violations of the Defendant's EEO policies" and making "recommendations about potential disciplinary action to resolve potential violations." And for that reason it may be reasonable for Plaintiffs to expect that a person in Ms. Othman's position would err on the side of caution in avoiding statements or conduct within the workplace that risk offending others, whether intended as such or not. But even considering those facts and inferences …, none of them render her Plaintiffs' "supervisor" under the narrow standard set forth in Vance. In Vance, the Supreme Court took pains to emphasize "a clear distinction between supervisors and co-workers," one that "can usually be readily determined, generally by written documentation." The Vance Court expressly rejected a standard that "would make the determination of supervisor status depend on highly case-specific evaluation of numerous factors." Here, Plaintiffs' acknowledgement that "Ms. Othman could not directly fire, hire, or otherwise take discipline against them," is dispositive under Vance…

Because Ms. Othman was not Plaintiffs' "supervisor" within the meaning of Vance, to state a hostile work environment against HHS Plaintiffs must allege that the agency (1) "knew or should have known about the harassment" and (2) upon such notice failed to take "remedial action reasonably calculated to end the harassment." … Plaintiffs acknowledged that the video was removed within days of being posted …. Plaintiffs do not contend that anything like Ms. Othman's display of the complained-of image happened again; there is no allegation that the alleged harassment recurred. The absence of any recurrence, combined with the fact that the employer immediately (within a day or two) removed the allegedly offending video, further confirm that Plaintiffs have not alleged facts that would establish that HHS, once it knew or should have known about the harassment, failed to take remedial action reasonably calculated to end the harassment.

Plaintiffs contend that the agency's response fell short because "no recourse was taken by the Defendant against Ms. Othman" and the agency "refused to apologize" and instead "continued" (at least for an unspecified period of time) "to defend the actions of Ms. Othman." But "an employer is not required to terminate a [particular] perpetrator except where termination is the only response that would be reasonably calculated to end the harassment." Here, Plaintiffs have not alleged facts that would establish that taking "recourse" against Ms. Othman personally was the "only response that would be reasonably calculated to end the harassment." …

Nicole Nardone (D. Md. U.S. Attorney's Office) represents the government.

The post HHS Video That Depicted HHS Group Director Wearing Allegedly Anti-Israel Symbols Wasn't Actionable Workplace Harassment appeared first on Reason.com.

From Chavis v. UNC, decided Tuesday by Chief Judge Catherine Eagles (M.D.N.C.):

Dr. Larry Chavis was a non-tenured professor at the University of North Carolina-Chapel Hill Kenan-Flagler Business School. In 2024, UNC declined to renew his teaching contract. He alleges that decision was based on his race, made in retaliation for his reports of discrimination and outspoken criticism of UNC on diversity issues, and violated his First Amendment rights….

The facts as recited are either undisputed or viewed in the light most favorable to Dr. Chavis, as required at this stage of the proceedings.

Dr. Chavis began working at UNC in 2006 …. During the summer of 2022, Dr. Chavis taught a graduate microeconomics course at UNC. One student in that class left course feedback stating in part:

Even though as a social liberal I agree with 90%+ of [Dr. Chavis's] personal observations about our society today – I think you would be better served to not share everything that you do during class. If I had wanted a degree in some sort of Native American studies or African American studies I would not have pursued an MBA. While I was not the least bit offended by your observations, I suspect there were some of the class that were.

When Dr. Chavis learned about the comment, he posted an excerpt of it on LinkedIn and stated that it was "just mean and walks right up to and probably crosses a line into being offensive." There is no evidence to indicate UNC took any action based on the evaluation or Dr. Chavis's post, and at the end of the 2022-2023 school year, UNC renewed Dr. Chavis's contract for another year….

As part of meeting with faculty and conducting focus groups, [Business School] Dean Frank met with Dr. Chavis in February 2024 to discuss his thoughts about the business school and his position. In an email sent shortly after that conversation, Dr. Chavis expressed frustration with his lack of career advancement at UNC and explained that he limited his time and interactions at the business school because of his perception that other faculty members "hate [him] for being too truthful and too supportive of equity."

When Dean Frank did not respond to the email by early April, Dr. Chavis read it aloud to some of his classes. In a follow-up email, Dr. Chavis informed Dean Frank that he had read the previous email to his students and that he planned to post about the email on LinkedIn….

[In Spring 2024], several graduating students told Associate Dean Dr. Shimul Melwani that they had serious concerns about Dr. Chavis's undergraduate international development class. They reported that the course content did not align with its description in the course catalog; that the course was poorly organized and "essentially was a stream of consciousness conversation" about Dr. Chavis's personal issues; and that Dr. Chavis humiliated certain students because of, for example, their race and fraternity affiliation. The students who spoke with Dr. Melwani expressed fear that Dr. Chavis would retaliate against them if he knew they had reported their concerns, and several students who spoke with Dr. Lundblad reported the same fear, including that Dr. Chavis would share their course evaluations publicly, as he had done in the past.

Following those complaints, Dr. Lundblad and Associate Dean Dr. Brad Staats decided to record Dr. Chavis's classes, to see if the student complaints were accurate. After receiving permission from UNC's human resources department and with no objection from Dean Frank, Drs. Lundblad and Staats arranged to record several of Dr. Chavis's class sessions; they did not tell Dr. Chavis in advance that these recordings would occur.

In March 2024, Dean Frank asked Dr. Lundblad to initiate a "Teaching Evaluation" of Dr. Chavis. As part of that process, Dr. Chavis learned about the recordings and protested that they violated UNC policy. He also gave a series of interviews about the recordings with local and online news outlets, and posted on social media about articles covering the incident….

In [its report evaluating Dr. Chavis], the responsible school leadership made several findings.

First, Dr. Chavis had changed the course's content to focus on indigenous issues without approval and without revising his syllabus, course name, or course catalog description.

Second, Dr. Chavis had replaced the course content with discussion of his personal and professional situation and his dissatisfaction with some of UNC's decisions, which created an environment that required students to discuss his personal circumstances during class and created a fear of retaliation if he disapproved of a student's contributions. {Specifically, the evaluators found that Dr. Chavis used class time to talk about how he was "wronged by the business school" and to "read from his manuscript on his life;" that he "stated that he was going to 'burn this b*tch down' " if a UNC hiring process went a certain way; that he asked students "to comment on his life and personal circumstances" in a way that felt pressuring to students and made them fear he would retaliate by giving a poor participation score, which accounted for 35% of a student's grade; and that he told students not to go to the administration if they had complaints about his class but to come to him directly.}

Third, in course evaluations, several students expressed concerns about Dr. Chavis's course content and teaching methods, though the report noted that there were also many positive evaluations.{In his brief, Dr. Chavis states that the report "[l]eft unmentioned … a larger number of highly positive observations from students." That is not an accurate account of the record. See [record document] (evaluation stating that "there are a number of positive evaluations from students who appreciate Prof. Chavis'[s] approach and topics.").

Finally, during in-person teaching observations, Dr. Chavis "covered content inconsistent with" the course description, including "some limited discussion of his personal situation."

The evaluators concluded that the examination "uncovered several issues regarding content and conduct, including students reporting safety issues and fear of retaliation." When UNC sent Dr. Chavis the evaluation in May 2024, he disputed many of its findings and posted the evaluation and his response on social media.

Dean Frank reviewed the teaching evaluation and decided not to renew Dr. Chavis's contract for the coming academic year….

Chavis sued, but the court rejected his claims. Here's a discussion of Chavis's claims that the school retaliated against him based on his race-discrimination-related complaints:

Dr. Chavis identifies his protected activity as his interviews with local media outlets and online publications and his postings online in the spring of 2024 criticizing the recording of his classes without his knowledge, which he contends was linked to racial discrimination. He points to the temporal proximity of those public complaints to the decision not to renew his contract as supporting an inference of causation. The defendants dispute both contentions.

Assuming without deciding that Dr. Chavis has made out a prima facie case for retaliation, the defendants have articulated a legitimate, nonretaliatory reason for their actions. All available evidence shows that Dean Frank's decision not to renew Dr. Chavis's contract was based on the findings made during the teaching evaluation of his international development class. In her deposition, Dean Frank, the decisionmaker, testified that the "deciding factor" for not renewing Dr. Chavis's contract was that he "had chosen to teach material that had not gone through the process of being approved, and that [he] was thus teaching content that was not what we were expecting in the program." {Dr. Chavis himself admits that he did not obtain approval for the changes he made to the syllabus, and he acknowledges that he "began to shift the content of his academic offerings" in 2023 and 2024.} She has also testified that concerns about the physical and psychological safety of UNC's students motivated her decision.

In sum, her proffered reason for not renewing Dr. Chavis's contract was "the litany of concerns that were discussed in the Teaching Evaluation." Those concerns constitute a legitimate, nonretaliatory reason for not renewing his contract….

Multiple students reported that Dr. Chavis was using class time on subjects well outside the syllabus, and classroom observations by other faculty substantiated those reports. Several students credibly reported that his teaching methods caused some students to fear embarrassment and retaliation based on required class participation. An internal evaluation supported the conclusion that Dr. Chavis did not follow UNC's procedure for changing his course content. Those are valid reasons for not renewing a professor's contract….

The court concluded, citing similar reasons, that there wasn't enough evidence supporting Chavis's race discrimination claim and First Amendment retaliation claim.

Jeremy David Lindsley (N.C. DoJ) represents the university.

The post UNC Non-Tenure-Track Professor's Nonrenewal Upheld appeared first on Reason.com.

The post Today in Supreme Court History: July 3, 1941 appeared first on Reason.com.

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

Cert granted! This week, SCOTUS took up IJ case Hoffman v. WBI Energy Transportation, which pits North Dakota ranchers against a private pipeline company that wants to run roughshod over state-law protections for private property. Click here to learn more.

New on the Bound By Oath podcast: In 1960, the Supreme Court ignored text, history, and tradition and disfigured the Fourth Amendment, allowing warrants to issue based on hearsay. Which was bad and wrong, and the Court can fix it right now.

1. Puerto Rico puts over $2 mil in a court-controlled, interest-bearing account to pay for land condemnations. Before disbursing, the judiciary takes a 15 percent cut of the accrued interest. An unconstitutional taking? First Circuit: Doesn't seem like it.
2. An IRS official who wants to assess a tax penalty must obtain written approval from his immediate supervisor—but, surely, the IRS says, that requirement can't apply if a taxpayer's liability has already been conclusively adjudicated, right? I mean, we're not going to have some middle manager sign off on whether a court got it right, are we? C'mon, guys. Right? Second Circuit: Rules is rules.
3. Following the worst measles outbreak in the United States in 25 years, New York repealed its religious exemption for mandatory student vaccination. Amish schools and community members sue, alleging the law violates their Free Exercise rights and their right to control the religious upbringing of their children. Second Circuit (2025): Nope. Supreme Court: Take another look in light of Mahmoud v. Taylor. Second Circuit (2026): Still nope.
4. Fourth Circuit (2-1): The Trump Administration probably violated the due process rights of 19 career intelligence officers (who'd been doing the DEI) when it fired them without considering alternative positions for them or allowing them to appeal internally. PI affirmed.
5. Houston officer lies on no-knock warrant application, raids home of couple who are not drug dealers but are gun owners. Officers don't wear body cams into the house; officers outside the house don't activate their cams until the raid is underway or over. Five officers are shot, as many as four by friendly fire. Qualified immunity for the officer who shot husband and wife dead? District court: No, there are disputed facts. To a jury this must go. Fifth Circuit: Tragic. Harrowing. Reversed. We don't second-guess officers in a gunfight.
6. SEC: Our in-house staff can be prosecutor, judge, and factfinder in assessing fines. Supreme Court (2023): No dice, the Seventh Amendment guarantees a jury in a real court to impose civil penalties. HHS: But surely that rule doesn't apply to us (with respect to fining a vaping company). Fifth Circuit (over a dissent): Surely does.
7. Without a court order, Mariemont, Ohio officers push their way into condo, evict septuagenarian who had lived there for years—at the behest of the recently deceased condo owner's nephew. Yikes! The nephew wasn't on the up and up. Sixth Circuit (over a dissent): Actively participating in an eviction without any legal basis violates the Fourth Amendment. No qualified immunity.
8. A gang of soccer hooligans in Serbia called "The Red Devils" beat up a player over dissatisfaction with his performance on the pitch. After he gets out of the hospital, they threaten that the beatings will continue until his play improves. Instead, he flees to the U.S. and files for asylum based on his status as a professional soccer player. Seventh Circuit: That's not exactly the kind of "social group" the asylum laws are meant to protect.
9. FBI searches drug dealer's home and seizes $585k in cash from a safe. Yikes! Sticky-fingered agent pockets $218k and spends it on "cars, a Vegas trip, and plastic surgery for his wife." Dealer agrees to forfeit remaining cash but seeks return of what was stolen. Ninth Circuit: Fair enough; he might not be seeking return of the exact same bills, but money is fungible. Dissent: That money is long gone, so this is really like seeking damages and barred by sovereign immunity.
10. You'll be reminded in Footnote 7 of this Ninth Circuit preemption case that, unlike in most other tribunals, if you ask that court to take judicial notice of something it's best to file a separate motion explicitly asking for said notice. You'll also be reminded that smog is bad in southern California and (over a dissent) that federal law does not preempt new rules that are bad for sellers of gas water heaters.
11. Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. Second, Sixth, Eleventh, and now Tenth Circuit: No. (With cases pending at the First, Third, Fourth, Seventh, and Ninth circuits.)
12. Utah's legislative sessions are open to the public, but it provides additional access to credentialed journalists, such as entry to a press room and secure areas of the capitol. The credentialing policy categorically excludes journalists associated with blogs, independent media, or other freelance media. A former newspaper journalist with 25 years' experience—now running an independent news organization—challenges his credential denial. Tenth Circuit: And it looks like he may have been denied because of his news stories' viewpoints. Case un-dismissed!
13. Okaloosa County, Fla. officers raid home, force suspect's girlfriend out of the house in the nude. She's given insufficient material to cover herself and is in view of male officers and her minor children for nearly 40 minutes. Eleventh Circuit (unpublished): A jury might find she was prevented from dressing for longer than necessary.
14. And in en banc news, the Second Circuit will not reconsider its decision that New York state judges have absolute judicial immunity for rulings denying concealed-carry licenses. Six judges dissent from denial, arguing that placing licensing authority in the hands of judges would then seem to be a pretty convenient way to shield it from constitutional attack.

New on the Short Circuit podcast: Happy America at 250! On a special episode, two IJ Brits reflect on how 1776 led to judicial review.

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

(Note: For those unfortunate few who hate soccer, you can just skip to the next post—and you are missing one of the world's greatest sporting events.)

Like more than 30 million other Americans, last night I watched the U.S. Men's National Team (USMNT) defeat Bosnia and Herzegovina 2-0 at the FIFA World Cup.  The big talking point after the game was whether the "straight" (i.e., immediate) red card given to the American striker, Folarin Balogun, was correct. As a long-time fan of the U.S. men's team (and the women's team, see, e.g., my post here), it may not be a surprise that I disagree with the call. And I acknowledge that I lack formal training in the rules of the World Cup. But as a lawyer and former trial court judge, I do have training and experience in applying rules to specific fact patterns. That background leads to me question the decision last night. Because it is interesting to think about how legal rules apply in this situation, I thought a short blog might be appropriate and timely.

To briefly recap the situation, last night at about 63 minutes into the match, the USMNT was leading the Bosnian team 1-0. Then American striker Balogun and Bosnian defender Tarik Muharemovic came together as they competed to claim a ball high in the air. You can watch video of the incident here. As Balogun came down, the studs on his boot (e.g., his right cleat) landed on the ankle of Muharemovic. The referee on the field called nothing. But after the Video Assistant Referee (VAR) looked at incident in slow-motion, he called the referee to review the images. After slow motion review of the video, the referee changed his earlier call and gave Balogun a red card for "serious foul play." This red card means Balogun was ejected from the game—and he will now miss the USMNT's next game against Belgium on Monday.

As a lawyer considering the red card, four concerns come quickly to mind:

The "Time Framing" Problem

In law, a common issue is deciding the appropriate time frame to assess a disputed action. In criminal law, for example, a defendant's actions may look culpable if one focuses on a narrow point in time. But stepping back and viewing the situation more broadly places the conduct in a different light. A simple illustration is that a defendant shooting a person might look like murder, if analyzed exclusively by focusing at the time the shot was fired. But rewinding time and learning that a few seconds earlier the person killed had made serious and plausible deadly threat to the defendant, the defendant's action might be reasonable self-defense. Selecting the right time frame is critical.

Applied to Balogun's situation, the time framing issue is whether to assess the correctness of the red card at the time he landed on the defender's ankle—or earlier. Almost by definition, the assessment must involve a broader time frame than when Balogun landed. To offer a simple hypothetical example, suppose Balogun had jumped straight up in the air to try and win the ball and the defender had deliberately placed his ankle under Balogun to draw a red card. Focusing just on the landing would provide a misleading impression.

In Balogun's situation, the issue of whether he engaged in serious foul play would seem to turn on the time at which he launched his jump. Thereafter, of course, his ability to change his trajectory would be very limited. And yet, according to the American televised broadcast, the VAR officials and referee appeared to focus on the time at which he landed.

The time framing problem becomes even more substantial when we consider what happened after Balogun's launch and during his jump. As shown in the image below, the defender's arm is extended into Balogun, clearly changing the trajectory of his jump.

Of course, if Balogun was knocked off balance by the Bosnian player, that would seem to place the incident in a different light.

But the commentary that I've read on the incident doesn't discuss this fact. And it is noteworthy that the rules of soccer (promulgated by the International Football Association Board or IFAB) only allow shoulder-to-shoulder challenges, not use of the arm. See IFAB Rule 12 ("A player may shield the ball by taking a position between an opponent and the ball if the ball is within playing distance and the opponent is not held off with the arms of body.") Considering this fact of illegal arm contact by the Bosnian defender preceding Balogun's boot to the ankle changes the situation, as Balogun could not have reasonable understood he was going to be pushed by the defender in that way.

Mens rea or intent

This last point leads swiftly into another consideration: what was Balogun's intent? In criminal law, the Latin shorthand for such considerations is "mens rea," translated roughly as  "guilty mind." The applicable provision (Rule 12) from the IFAB Rules of Soccer provides:

"Any player who lunges at an opponent in challenging for the ball from the front, from the side or from behind using one or both legs, with excessive force or endangers the safety of an opponent is guilty of serious foul play."

In criminal law, a common interpretive question when construing provisions like this is to what extent they contain a mens rea requirement. The standard answer in criminal law is that the defendant typically must have some mens rea with respect to his actions, typically either intentionality, knowledge, or recklessness. Only in rare situations is a defendant guilty without intent—situations described as "strict liability."

The serious foul play rule, at least as drafted, does seem to raise the possibility that intent is irrelevant. In particular, the phrase "endangers the safety of an opponent" could be interpreted as creating red card liability for simply creating an objectively dangerous situation. But context would still remain important in interpreting the phrase "endangers." Consider, for example, the hypothetical situation of a player jumping to head the ball and being pushed in the back by the opposing team as he comes down—with the effect that he lands on and, thus, endangers an opponent. No red card would appear to be appropriate in that situation, as the player is not in control as he lands through no fault of his own. It would be hard to describe the mere act of jumping in the area of an opponent as "endangering" an opponent.

This concept is implicit in the IFAB rules, but is made more explicit in other rules interpreting them. For example, the English Premier League (widely regarded as the best soccer or "football" league in the world) specifically lists five considerations for a "serious foul play" red card determination:

• Speed
• Intensity
• Force
• Degree of control
• Point and extent of contact (full/limited)

Thus, a player who makes a controlled challenge that inadvertently and unexpectedly endangers an opponent might not be guilty of a red card offense.

Similarly, as a matter of common sense, the degree of endangerment will always need to be considered when issuing a red card. Anyone on a soccer field fighting to win balls will, to some degree, endanger the safety of the opponent. The degree of endangerment becomes important, and someone who is intentionally trying to harm an opponent will, presumably, be more likely to cross that threshold.

This conclusion is reinforced by other events during the World Cup, such as an earlier incident involving the world's most famous soccer player, Lionel Messi. The incident clearly endangered the safety of an opponent but was not deemed worthy of a red card (or even a foul). The picture below shows the event:

As I understand things, the reason that Messi was not called for even a foul was that the contact was unintentional and therefore could not be said to rise to the level of endangerment. So too, it would seem, with Balogun's contact.

Many commentators have criticized the Balogun red card on grounds that it involved unintentional conduct, including former Premier League referee Mark Clattenburg here, former Select Group referee Andy Davis here. Which leads me to the next legal concern:

Standard of Review

The debate over the Balogun red card leads directly into another standard legal question: What is the standard of review for an on-the-field determination? Recall that, on the field, the referee did not even whistle Balogun for a foul, let alone a yellow card, let alone a red card. What standard of review is applied in deciding whether to overturn the initial decision?

Here, the IFAB Rules of Soccer are clear. IFAB's "Video Assistant Referee (VAR) Protocol" provides that a potential missed red card situation can be reviewed and changed, but only if the error is "clear and obvious." Here is the relevant language of the VAR Protocol:

The original decision given by the referee will not be changed unless the video review clearly shows that the decision was a "clear and obvious error."

The undergirding principle behind this rule is to avoid disrupting the flow of the game. VAR is already controversial because of the delays involved. So this standard of review is no mere technicality, but part of keeping the "beautiful game" beautiful.

Often at the World Cup, application of the "clear and obvious" principle is straightforward. For example, VAR has semi-automated technology that shows the relevant positions of the attackers and defenders at the time of a pass, allowing incontrovertible evidence of whether a player was "offside" during an attack.  But on judgment calls such whether some action was serious foul play, issues become more subjective.

And given that subjectivity, the fact that there is genuine dispute by neutral observers over a call would seem to rapidly remove it from the "clear and obvious" error category. If neutral and skilled soccer observers (such as Clattenburg and Davis) disagree with the call, it is hard to believe that the error was, in fact, "clear and obvious."

Appeals Process

So Balogun's red card was incorrect, at least in my view, as I have outlined here. Can there by an appeal—particularly of the one-game suspension that followed Balogun's ejection from last night's game?

It appears to be that under the FIFA World Cup rules, no appeal by the U.S. is possible from the suspension but FIFA's disciplinary committee could extend the one-game suspension to additional games. I don't dispute the no-appeal rule is currently in effect and needs to be followed in Balogun's case. But I do want to suggest that. from a legal perspective, this one-way rachet allowing an increase in the punishment but not a decrease is ill-conceived.

For starters, it is useful to think about why a one-game suspension is added onto the (already severe) punishment inherent in a red card of a ejection from a game. On reflection, the reason is obvious. Without such an suspension add-on, the end of soccer matches would become open-season on players; a losing team, for example, could simply hack down opposing players, as the ejection from a game that was already a lost cause is no real punishment at all.

So given that the purpose of the additional, one-game suspension rule is its deterrent effect, how does the no-appeal-of-a-suspension fit into that purpose? In my view, the appeal rule should be broadened to allow an appeal by a suspended player. This change would not produce any substantial reduction in the deterrent value of the suspension rule. For example, it is impossible to believe that Balogun's calculations regarding his challenge on the Bosnian defender considered the absence of an appeal as part of the calculus.

And allowing appeals by a suspended player's team would help improve the accuracy of the process. Accuracy is, of course, one of the main reasons for an appellate process in the law. The general understanding in the law is that immediate, on-the-scene decisions (such as evidentiary rulings by trial court judges) may benefit from a detached, "second set of eyes" looking at the issue later. The same can be said of an appeals process for red card suspensions. An on-the-field decision might be erroneous and could be corrected by appeal. And the appeal process would have the benefit of being done without the time pressure inherent in an on-the-field decision. Since a suspension for the next game will, by definition, not apply for at least a few days, there is time for an appeal process—particularly in high stakes games like the World Cup games.

Another function of appeals in the law is to promote consistency from trial court to trial court. For example, appeals of criminal sentences are thought to help promote rule-of-law principles but ensuring that local decisions do not vary from jurisdiction to jurisdiction. The same could be said of appeals of red card suspensions. With this year's World Cup spread across three countries and multiple referees from different nations, promoting consistency is an important goal.

From what I can tell reading the commentary about Balogun's suspension, the biggest criticism has been how he was treated differently—and more harshly—than other similarly situated players, with the most prominent example being the leniency shown to the prominent (and popular) Lionel Messi. American soccer pundit Alexi Lalas, for example, has said that "if his [Balogun's] name was Messi, he would still have played." Without debating whether Lalas is right, the advantage of a centralized and consistent appeals process to potentially address such claims seems apparent.

To be sure, the new appeals process that I am proposing for suspended players would only operate to retract a suspension rather than give one. VAR already seems intrusive enough without allowing it to scan video of prior games and locate possible red cards. But there is no novelty in allowing appeals that operate in the direction of leniency only. In the U.S., for example, appeals by criminal defendants are routinely allowed, while appeals by prosecutors are a rarity.

For all these reasons, my view is that Balogun's red card card was incorrect and that, in the future, appeals of suspensions by the suspended players should be allowed. But as noted at the outset, I make no claim to being a professional interpreter of the rules of the game. And, of course, it is also possible that my views on this issue are shaped by my hopes that the U.S. men's team progresses further in the tournament. If you have thoughts, feel free to add them to the comments below.

Update: I've corrected a few typos from the original post.

The post Why Balogun's World Cup Red Card Was Incorrect appeared first on Reason.com.

The Supreme Court's final decision of OT 2025, in Trump v. Barbara reaffirmed the conventional understanding of birthright citizenship under the Fourteenth Amendment, and held President Trump's Executive Order purporting to deny citizenship to the children of temporary visitors and illegal aliens born on U.S. soil unconstitutional. Writing for the Court, Chief Justice Roberts reached to resolve the case on constitutional grounds, eschewing the narrower (and more bulletproof) statutory arguments against the E.O. And as a consequence, the Chief's opinion in Barbara only garnered five votes.

Justice Kavanaugh concurred in the judgment, albeit on statutory grounds, and joined Justices Thomas, Alito, and Gorsuch in rejecting the Court's constitutional claims. None of the justices fully embraced the Trump EO's constitutionality, but the four all rejected the Chief Justice's constitutional holding.

While I believe the Chief Justice's opinion embraced the best interpretation of the Fourteenth Amendment's citizenship clause, I believe it was an error to reach the constitutional question given the clear statutory infirmity of the President's E.O., for reasons I explain in my latest Civitas Outlook column. A decision resting on statutory grounds would have received at least six votes; none of the dissenters addressed the statutory claim to any meaningful degree.

My column concludes:

In articulating and embracing a broad constitutional rule, the Chief Justice likely sought to settle the birthright citizenship debate for the body politic. He probably failed. Resolving the case on constitutional grounds produced a narrower majority than was necessary to resolve the case and invited extensive response, including over 130 pages of dissents. Legislative proposals on "birth tourism" and the like are sure to follow.

Although he considers himself a student of history, Chief Justice Roberts may not have learned history's lesson here. While fairly (and in my view, accurately) recounting the history of American citizenship, he neglected to consider the history of judicial overreach. On several occasions in our nation's history, justices have sought to quell political contestation through judicial edict, hoping the power of the pen would quell political discord. The controlling opinion in Planned Parenthood v. Casey (1992) called on "the contending sides" of that "national controversy" to lay down their opposition and heed the Court's opinion. Their argument fell on deaf ears and arguably enflamed the opposition to the Court's abortion jurisprudence.

It is unlikely that Trump v. Barbara ended the debate over birthright citizenship. It may have truly started it.

UPDATE: Some may think any continuing debate over birthright citizenship will be exclusively political. Despite a burst of recent revisionist scholarship, and a handful of responsive works, most assume the academic case for the conventional account of birthright citizenship has been conclusively made. While I remain convinced the conventional account represents the better interpretation of Section 1 of the Fourteenth Amendment--and believe that there is relatively little in the dissents that has not been addressed in the relevant scholarship--I believe it would be an error to assume even the academic debate is over. I say this for several reasons (which I list in no particular order.

First, the best way to interpret the relevant language ("subject to the jurisdiction") is not self-evident, and the specific concerns at issue today were not those at the time of its adoption. While the conventional account makes a strong case for what this phrase means, it is less persuasive at establishing that this language represents a closed set of categories that cannot be modified, stretched, or expanded (particularly if, like most constitutional law scholars, one assumes Section Five of the Fourteenth Amendment grants meaningful power to Congress).

Second, many defenses of the conventional account are too conclusory, dismissing potential complications in the narrative or assuming away potential distinctions that could be drawn (say, for instance, between illegally trafficked enslaved people and illegal entrants or visa overstays).

Third, most legal academics reject originalism as a methodology, so it is unclear that (for purposes of academic debate) originalist accounts of birthright citizenship are those that matter--and unclear the extent to which non-originalist methodologies support the conventional account unless one assumes the desirability of maintaining birthright citizenship (an assumption many people do not share, particularly as applied to illegal immigrants and "birth tourists.").

Fourth, insofar as we are in a legal-political moment in which many people argue the Court should be (even) less active at constraining the body politic from enacting desired policies--that the Court should be more Thayerian--it is not clear why this would not apply as readily to Section 1 of the Fourteenth Amendment as to other constitutional provisions. If the Court should, as a general matter, be less prone to substitute its constitutional interpretation for that of the public, why would that not also apply here?

Whether or not the academic debate continues (on BlueScream some speak of "repercussions" for academics who endorsed citizenship wrongthink), the political debate is likely to rage. Immigration remains a potent and powerful political issue, and even though the Court handed the Trump Administration multiple immigration policy wins, political churn on this issue is likely to continue unless and until there is meaningful legal reform, and that could take some time. So while I am skeptical Barbara will be the new Roe, I am doubtful that the decision truly settled anything other than what the law is, for now. That ain't nothing, but it ain't everything either.

The post Will Trump v. Barbara End the Birthright Citizenship Debate? (UPDATED) appeared first on Reason.com.

On May 13, 2023, The Post reported that TMTG, a company founded by then-former-President Donald Trump, had received $8 million in loans from an obscure financial entity, ES Family Trust. The Post's article (the "Article") was part of its continuing business coverage regarding TMTG's efforts to launch and fund a social media platform and followed two Post articles reporting on information disclosed by TMTG-co-founder-turned-whistleblower Will Wilkerson. The Article also reported that, based on internal TMTG documents Wilkerson provided, TMTG had agreed to pay and paid a $240,000 finder's fee to Entoro Securities, a brokerage associated with the CEO of TMTG's prospective merger partner, Digital World Acquisition Corp. ("DWAC"). According to the Article, neither the $8 million loan—which entitled ES Family Trust to company shares after the merger—nor the finder's fee were disclosed to the Securities and Exchange Commission ("SEC") or DWAC's shareholders.

TMTG sued The Post for defamation, claiming the Article contained nine false and defamatory statements about TMTG. After three rounds of motions to dismiss, TMTG's claim was narrowed to just two statements, both involving the finder's fee. The operative Complaint claims that the Article's statements that (1) TMTG "paid a $240,000 finder's fee for helping to arrange the $8 million loan deal with ES Family Trust" and that (2) Entoro, a "brokerage associated with Patrick Orlando," was the "recipient of that fee," are false and defamatory because "TMTG never paid or agreed to pay a $240,000 'finder's fee.'" In a passage that TMTG did not include in the Complaint, the Article also reported that "[i]n January 2022, Trump Media agreed to pay a cash referral fee—equal to 3 percent of the $8 million loans, or $240,000—to a Houston-based brokerage firm called Entoro Securities, according to a referral fee agreement and an Entoro invoice provided by Wilkerson."

TMTG is a public figure and therefore must prove on summary judgment that a reasonable jury could find by clear and convincing evidence that The Post published the finder's fee statements with actual malice. In other words, TMTG must show—well beyond a preponderance of the evidence—that at the time of publication The Post knew the finder's fee statements were false or entertained serious doubts as to their truth. TMTG cannot satisfy that heavy burden.

Washington Post reporter Drew Harwell thoroughly investigated the Article before publication. He interviewed Will Wilkerson—an on-the-record source—who knew first-hand about TMTG's financial dealings. Harwell also interviewed Wilkerson's attorneys, who were giving information to government investigators on his behalf. He also reviewed internal TMTG documents and other documents Wilkerson attached to his SEC whistleblower complaint. And he contacted several sources to help him interpret the information he had collected.

As to the $240,000 referral fee specifically, Harwell's telephone and inperson interviews of Wilkerson with his attorneys covered the topic, as did numerous documents that Wilkerson's attorneys sent him. In all, they told Harwell repeatedly—both orally and in writing—that TMTG had agreed to Entoro's finder's fee and paid it. Harwell reviewed an invoice Entoro had sent TMTG for the fee and, later, an unsigned "Referral Fee Agreement," which Wilkerson's attorneys had located in his trove of whistleblower documents and which set out the terms for the fee. Harwell repeatedly spoke to Wilkerson's attorneys and asked them to review a summary of the facts for accuracy before publication. He contacted TMTG, Entoro, and others eight days before publication to inform them of the article's contents (including the agreement to pay the finder's fee) and to offer an opportunity for them to comment. He followed up with TMTG when he did not hear back. Given this investigation, Harwell and his editor, Mark Seibel, had confidence in the Article's accuracy at the time of publication.

A reporter need not engage in such a thorough investigation to dispel allegations of actual malice. What matters is whether there is clear and convincing evidence that the reporter actually knew, at the time of publication, that the statements were false or in fact entertained serious doubts as to the truth of those statements. And in this case, there is no evidence, much less clear and convincing evidence, that Harwell or his editors knew the finder's fee statements were false. Instead, Harwell's investigation rebuts any argument that the finder's fee statements were made with actual malice. This Court should thus grant The Post summary judgment on TMTG's defamation claim and TMTG's conspiracy claim based on its defamation claim.

The post Trump Media Group Loses Lawsuit Against Washington Post, Over Allegations Related to SEC Disclosures appeared first on Reason.com.

Critics of the Supreme Court's birthright citizenship decision in Trump v. Barbara often cite the issue of "birth tourism" - situations where a pregnant woman comes to the US to give birth for the specific purpose of ensuring that the resulting child will be a US citizen. The issue comes up often in political discourse, and is a major focus of Justice Samuel Alito's dissent in the case. As a legal matter, birth tourism should have no effect on the resolution of the constitutional issue before the Court: the meaning of the Citizenship Clause of the Fourteenth Amendment. As a matter of morality and policy, the problem is not just overblown, but actually not a problem at all.

The Citizenship Clause grants citizenship to "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof." As Chief Justice John Roberts explains in his majority opinion for the Court, this covers almost everyone born in the US, excluding only groups that are largely exempt from sanctions for violating the law, such as children of diplomats who have diplomatic immunity.  That includes the groups Trump sought to exclude from birthright citizenship in his January 2025 executive order: children of undocumented immigrants and those here on temporary visas. Children of "birth tourists" are covered in the same way. Unless their parents are diplomats or the like, they too are subject to US law.

In my previous post about the Supreme Court decision, I summarize the reasons why the majority's approach is correct, and the various dissenters wrong. Among other things, the dissent arguments all run afoul of the main purpose of the Citizenship Clause: ensuring citizenship rights for freed slaves, their children, and other Blacks.

Moreover, the scope of this phenomenon is very limited. PolitiFact recently compiled estimates of the number of children born to "birth tourists" on US soil. Most estimates fall within a range of about 5000 to 10,000 per year. The immigration-restrictionist Center for Immigration Studies gives a much higher estimate of 26,000 per year. CIS's data analyses are often badly flawed and misleading. But even this higher figure is only about 10% of the over 250,000 children per year who would lose birthright citizenship status if Trump's executive order had been upheld by the Court. Preventing this relatively small number of birth tourism cases isn't worth consigning hundreds of thousands of people to deportation back to what for most would be a lifetime of poverty and oppression. It also isn't worth the damage to the US economy and society.

Moreover, birth tourism isn't actually a bad thing at all. It's a positive good. Presumably, "birth tourist" parents want their children to be born US citizens so they could live a life of greater freedom and prosperity than would be possible in the parents' countries of origin. That's obviously a good outcome for the children and their families. And it's good for the US economy and society, as well, because native-born US citizens benefit from the enormous economic and social contributions of immigrants. Indeed, immigration restrictions undermine the economic freedom and prosperity of native-born US citizens more than any other government policy.

There is no good reason to think that children of "birth tourists" will, on average, be any worse citizens than children of other types of migrants or - for that matter - native-born citizens. Relative to natives, immigrants contribute disproportionately to scientific innovation and entrepreneurship, have lower crime rates, and greatly reduce government budget deficits (they, on average, contribute far more to the public fisc than they take out). The same is almost certainly true of children of birth tourists.

Restrictionists tend to assume that immigration and citizenship are zero-sum games. If an immigrant comes and (worse still) becomes a citizen, that somehow takes something away from natives. But in the vast majority of cases, the exact opposite is true. Immigrants and natives can progress and prosper together.

Children of birth tourists are unlikely to be exceptions to these general trends. The main difference between them and other migrants is that their parents carefully planned to be in the US at just the right time. Such foresight and planning is a positive trait, not a negative one.

To be sure, some such children might turn out bad, growing up to be criminals, terrorists, and so on. But the same is true of some proportion of virtually any group of many thousands of people. There is no reason to categorically exclude all members of such groups based on that possibility. Under that approach, the US should have barred the ancestors of virtually all current US citizens. After all, most of those ancestors were migrants who were members of groups that included some criminals and other malefactors.

There is also the possibility that the parents might leave the United States and never return, taking the kids with them. But if so, the children may live out their lives elsewhere, and their being US citizens would not cause anyone any harm (albeit also creating little benefit). If they then return to the US as adults many years later, there is no reason to think that would, on average, be harmful either. For example, there is no evidence that children of birth tourists have become significant sources of espionage or threats to national security.

Perhaps some of these adult returnees will be bad voters. But if so, they are highly unlikely to be a large enough group to influence electoral outcomes. Besides, it's unlikely they would be much worse than the the electorate we already have, which suffers from widespread ignorance and bias.

To the extent that some small percentage of immigrants or children thereof are dangerous, the best approach is not to exclude large numbers of innocent people in order to forestall a few criminals, but to shift resources away from enforcing immigration restrictions to ordinary law enforcement. That is likely to do far more to reduce crime overall, while posing less danger to civil liberties.

Ultimately, there is no coherent objection to birth tourism that isn't an objection to immigration more generally. If you want to massively reduce immigration overall, then you will likely want to reduce birth tourism, too (even though it's only a tiny fraction of the total). But there is no reason to single out the latter.

I am not an unequivocal supporter of birthright citizenship. Elsewhere, I have explained why it's a "second-best policy." It would be much better if people had a right to freedom of movement regardless of where they happened to be born. That would also eliminate the need for "birth tourism." But birth tourism is not a valid reason to replace birthright citizenship with something more exclusionary, rather than less so.

In sum, birth right tourism is legally irrelevant to the constitutional issue that the Supreme Court decided. And it's a relatively minor phenomenon that isn't a problem at all. It would be good to have more of it!

UPDATE: I have made a few minor additions to this post.

The post Responding to the "Birth Tourism" Objection to Birthright Citizenship appeared first on Reason.com.

Plaintiff G.P. moves for an extension of the deadlines to file opposition briefs to three motions to dismiss …. The first two of these deadlines have already passed.

G.P.'s attorney states that the reason he was unable to meet the deadlines, confer with opposing counsel about an extension, or request an extension before now is that he has been residing in Alba, Italy for the last year and construction on his street has interrupted his "internet and telecommunications service" since about June 1, 2026. G.P.'s counsel does not suggest that he has been unable to access any source of internet during the last month, nor would such a claim be credible. Indeed, he has filed several briefs or other documents since the interruption at his residence began.

Although the Court is not yet persuaded that G.P.'s counsel has demonstrated diligence or good cause for his tardy request to extend the deadlines, denying his request would amount to terminating sanctions because the motions to dismiss at issue are dispositive. The Court is disinclined to impose such a sanction at this time.

Instead, Defendants Meta, Arevalo, and Jimenez are DIRECTED to notify the Court no later than July 6, 2026, whether they will stipulate to—or intend to oppose—G.P.'s requested extension and whether they request a commensurate extension of their reply deadline.

And the parties have indeed stipulated to the extensions.

My view: If you want to spend June in lovely Alba, Italy, "famous for its white truffle and wine production" and "the White Truffle Capital of the World," you absolutely should! But if you also want to practice law during that month, you need to have a Plan B for any Internet outages you might be facing.

Here's an excerpt of the lawyer's argument:

By the way, here's a summary of Meta's view of the case, from its motion to dismiss:

Plaintiff G.P.'s claims stem from allegedly unlawfully recorded dashcam footage of Plaintiff looking at her phone for "approximately twenty (20) seconds" while driving a rental car and eventually running off the road. Plaintiff has sued, among others, the "host" of the car who allegedly recorded the footage and posted it online. Plaintiff's original Complaint acknowledged that Section 230 of the Communications Decency Act would likely preclude any damages claim against Meta, asserted no substantive wrongdoing by Meta, and sought only equitable relief. The First Amended Complaint ("FAC")—filed only after Meta moved to dismiss—attempts to circumvent that concession by grafting an implausible federal Wiretap Act theory onto the facts. But this new claim against Meta fails across the board.

First, Plaintiff's FAC does not, and cannot, allege that the dashcam footage that Meta allegedly "amplified" on Facebook and Instagram included any communication at all for purposes of her claim: Plaintiff was alone in her car and not speaking to anyone. The federal Wiretap Act, accordingly, does not apply. Second, even if the footage included a communication that might be subject to the Wiretap Act (it does not), the FAC does not plausibly allege that Meta "knew or had reason to know" that the footage was obtained illegally, particularly since the FAC acknowledges, for the first time, that Plaintiff was given prior notice that the car was equipped with a dashcam and that she declined the express invitation to unplug it. Because Section 230 would bar any other substantive claim Plaintiff might seek to assert against Meta, the Court should dismiss the FAC with prejudice.

On the face of the two complaints—and the dashcam footage incorporated by reference into the FAC—Plaintiff broke the law and endangered the public; gave a false statement to police about being run off the road; repeated that false statement to the rental "host" who posted the footage; and then falsely asserted in her original Complaint both that "[a]t no point" did she receive any notice that the vehicle "contained any recording device whatsoever" and that the crash resulted from just a "split-second decision" to look at her phone. She seeks to recover a windfall from Meta as a reward for her misconduct, but her sole claim against Meta fails on the merits and should be dismissed at the outset of this litigation.

And here's G.P.'s framing, from the Complaint:

This is a case about the systematic violation of a woman's most fundamental right—the right to privacy—and the devastating cascade of consequences that followed when that violation was weaponized for revenge and amplified by internet platforms and media outlets to millions of people worldwide.

In August 2025, G.P., a 37-year-old private citizen, single mother of two children, and healthcare professional, rented a vehicle through Turo's car-sharing service. Without her knowledge or consent, the vehicle's host, Defendant Jose Hernandez Arevalo, had installed a hidden interior dashcam that recorded not only video of the road ahead but also audio and video of the vehicle's interior—capturing Ms. G.P.'s private conversations, her voice, and her vulnerable moments inside what she reasonably believed was a private space.

When Ms. G.P. was involved in a single-vehicle accident that afternoon, she became the unwitting subject of what would become a global violation of her privacy, her dignity, and her right to control her own image and identity. Defendant Arevalo, acting with calculated malice and motivated by personal revenge, extracted the illegally obtained dashcam footage, edited it to be maximally humiliating, and published it to social media with inflammatory captions designed to publicly shame and "blast" Ms. G.P.

What followed was a cataclysm: The video spread virally across Facebook, Instagram, Reddit, TikTok, and other platforms. It was picked up by mainstream media outlets including Inside Edition and Atlanta Black Star. Millions of strangers worldwide saw Ms. G.P.'s face, heard her panicked voice, learned her identity, and were presented with a false and damaging narrative that she had lied and was reckless.

The consequences for Ms. G.P. have been profound and ongoing: severe emotional trauma, professional damage, public humiliation, social isolation, loss of her fundamental sense of safety and privacy, and the permanent commodification of her image and personal moment of vulnerability.

All of this was accomplished through conduct that violated federal law (the Federal Wiretap Act, 18 U.S.C. § 2511), Washington state law (RCW 9.73.030, the Washington Privacy Act), and the common law of privacy and tort.

The post Lawyer Argues He Missed Deadlines Because He's in Piedmont, Italy, and His Internet Service Has Been out for a Month appeared first on Reason.com.

On June 22, 2023, Brister was sentenced in two unrelated cases. In Milwaukee County Circuit Court Case No. 2020CF367, which is not part of this appeal, Brister was sentenced for possessing a firearm as a felon ("the 2020 case"). He illegally possessed a gun while also committing acts of domestic abuse against his live-in girlfriend, Marie.

In Milwaukee County Circuit Court Case No. 2021CF3563, the case before us on appeal, Brister was sentenced for child neglect and OWI (1st) [Operating While Intoxicated] with a minor in the car, after Brister was pulled over for speeding and weaving on I-43 while Diana, then two years old, was unsecured in the backseat of the car. Diana was not injured, so the charge of child neglect alleged that harm would be a natural and probable consequence of the neglect. During the traffic stop, police found a loaded gun under the rear passenger seat. Brister called Marie to pick Diana up from the traffic stop, in violation of a no-contact order that had been imposed while he was released on bail in the 2020 case…. Brister's criminal record … included 2006 convictions for burglary and uttering a forgery, a 2009 conviction for marijuana possession, and three convictions for burglary in 2011….

The circuit court's sentencing remarks focused on the gravity of the offenses, noting the danger to which Brister had exposed his daughter and the seriousness of twice having a gun while intoxicated. The court summarized the most relevant sentencing factors when rejecting Brister's recommendation for probation:

The first thing I have to consider is whether probation is appropriate. I can't think of anything further from appropriate, than putting you on probation, for these offenses. You have demonstrated, by your behavior, not only by your criminal record, not only by your incredibly dangerous behavior in not following court orders and having that firearm and being drunk while you have the firearm, and battering [Marie], engaging in disorderly conduct. Not only that, but then adding on, that you needed to neglect and endanger your two-year-old while you were driving with her, again drunk, at incredibly high speeds, and having the firearm accessible to her. It defies description.

The court sentenced Brister to six months in jail for the OWI, concurrent to 18 months of confinement and 18 months of extended supervision for child neglect. Those sentences were made consecutive to four years' confinement and four years' extended supervision for the 2020 case. Thus, the total sentence for both cases was eleven years' imprisonment, equally divided between confinement and extended supervision.

After stating the sentences, the court ordered that Brister have no contact with Marie or Diana for the entire eleven-year sentence, stating: "I'm going to find, as conditions of the time that you are on—either serving your sentence, initial confinement, or extended supervision—I'm going to order that there be a no contact order with [Marie] and [Diana]."

The appellate court held that, though restrictions on constitutional rights as part of a criminal sentence are often constitutional, this one went too far in restricting Brister's First Amendment rights and parental rights; an excerpt:

The scope and duration of the no-contact order renders it overly broad and unreasonable with respect to Diana. The circuit court imposed the no-contact order with Diana because Diana was a victim of two of the crimes for which Brister was convicted and sentenced—child neglect and OWI (1st) with a minor in the car. However, the actual sentence for those two crimes amounted to three years of the total eleven-year sentence. The other eight years were a result of the unrelated 2020 case involving Marie.

That is, the circuit court imposed a no-contact order with respect to Diana that is almost quadruple the time of the sentence for the crime that justified the no-contact order in the first place. The circuit court did not explain this disparity, and in our view, imposing an eleven-year no-contact order between a father and his daughter is irrational (and certainly not narrowly tailored) where Brister did not cause harm to Diana and the sentence for the crime justifying the no-contact order is itself only three years.

We also view the scope of the no-contact order to be overly broad and not narrowly tailored. The circuit court correctly described Brister's criminal acts as "dangerous," but it failed to explain how no contact whatsoever between Brister and Diana for the entire eleven-year sentence actually protects Diana. Under the circuit court's no-contact order, Brister is not only prohibited from unsupervised face-to-face contact with Diana, he is prohibited from communicating with her in any way, including during the period of time that Brister is confined. He cannot call, text, email, or send letters to his daughter for eleven years. Protecting Diana, as a victim of Brister's crimes, is a significant and legitimate goal, but on this record, we see no rational connection between the scope and duration of the no-contact order and the circuit court's purported goal of protecting Diana.

Finally, we observe that the constitutional right abridged here, Brister's right to a parent-child relationship with Diana, is a finite right. It exists only so long as Diana is a legally recognized child. Put another way, Brister has no constitutionally protected right to a parent-child relationship with Diana after she reaches the age of majority. Diana was four years old when Brister was sentenced, meaning that Brister cannot have contact with her until she is 15 years old. The vast majority of Brister's finite right to a parent-child relationship is, in practical terms, terminated by the eleven-year no-contact order. While being incarcerated will, in all likelihood, negatively affect the parent-child relationship between Brister and Diana, in this case, the circuit court effectively terminated Brister's right to a parent-child relationship with Diana without any of the legal protections attendant to formally and legally terminating parental rights.

{We note that this is an extreme case. Not every no-contact order imposed under Wis. Stat. § 973.049(2) between a parent and child will effectively terminate the parent-child relationship like the one considered in this appeal. We also observe that cases involving other crimes committed by a parent against their children may well justify a lengthy and absolute no-contact condition under § 973.049(2). However, under the facts of this case, the no-contact order presented here is irrational, overly broad, and not narrowly tailored to serve the admittedly significant interest of protecting Diana.}

The post Order Barring Communication Between Inmate/Probationer and Daughter for 11 Years Is Unconstitutional appeared first on Reason.com.

Oregon Right to Life … has one mission: to advocate for pro-life positions based on Judeo-Christian values. This singularly focused nonprofit, by operation of Oregon law, and in particular the religious exemption available to lawfully avoid compliance with this law, would [be forced] to purchase health insurance for its employees that would cover abortions and abortifacients—the very things the nonprofit exists to oppose on religious grounds. The Supreme Court, as this Opinion explains, has made clear that a nonprofit in Plaintiff's position must prevail on its as-applied challenge to the "religious employer" exemption….

The Oregon Legislature enacted RHEA to "ensure[] that Oregonians have access to comprehensive reproductive health care" including abortion and contraceptives, regardless of their income or insurance coverage. RHEA requires all health benefit plans in Oregon to "provide coverage" for abortion and "any contraceptive drug, device or product approved by the United States Food and Drug Administration." Further, a health benefit plan "may not infringe upon an enrollee's choice of contraceptive drug, device or product and may not require prior authorization.

RHEA exempted (among other things) "religious employers" "whose purpose is the inculcation of religious values," but Oregon Right to Life wasn't covered because its "purpose is prolife advocacy, not inculcating religious values, and [because Plaintiff] doesn't primarily serve persons sharing its religious tenets." The court held that limiting the religious exemption this way involved unconstitutional discrimination among religious objectors:

In Catholic Charities Bureau, Inc. v. Wisconsin Labor & Indus. Rev. Comm'n (2025), a Catholic church-controlled non-profit social services organization brought an Establishment Clause claim after Wisconsin denied it a religious exemption from the state's unemployment compensation system. The exemption applied to non-profits operated by churches if they were "operated primarily for religious purposes." The Wisconsin Supreme Court found that Catholic Charities was not eligible for the exemption, interpreting "operated primarily for religious purposes" to require that the religious organization proselytize or limit its services to those who shared its beliefs to qualify for the exemption. The non-profit did not qualify because, consistent with its religious beliefs, it did not limit its services to fellow Catholics or use its charitable work to proselytize.

The non-profit appealed the denial, and the United States Supreme Court reversed … because the exemption "explicitly differentiat[ed] between religions based on theological practices," creating a denominational preference for religions that proselytize or serve only co-religionists that "facially favors some denominations over others." …

Both Wisconsin's exemption in that case and Oregon's here condition eligibility on serving only co-religionists. The exemptions require that the organization inculcate (teach) or proselytize (convert others to) their religious views. Just as these requirements led the Supreme Court to hold that Wisconsin's exemption "facially differentiates among religions based on theological choices," they signal that RHEA's religious employer exemption also runs afoul of the neutrality principle of the First Amendment….

For more on the Catholic Charities precedent, see this post.

James Bopp, Joseph Maughon, and Richard Coleson (Bopp Law Firm) and Shawn Lindsay represent plaintiff.

The post Religious Exemption from Reproductive Health Care Insurance Mandate Can't Be Limited to Groups "Whose Purpose is the Inculcation of Religious Values" appeared first on Reason.com.

Although I'm a big sports fan, I have long been critical of the Olympics and the World Cup for a variety of abuses, such as massive stadium subsidies that victimize taxpayers, forcible displacement of people in order to build stadiums, and providing a propaganda showcase for repressive authoritarian regimes, such as Russia and Qatar (hosts of the last two World Cups). Fortunately, this year's World Cup - co-hosted by Canada, the US, and Mexico - has mostly avoided these problems, at least when it comes to the United States. Though not quite entirely, as we shall see.  The key factors are that the US host cities used existing stadiums, and that strong protections for freedom of speech largely foreclosed the censorship and repression common in authoritarian host states.

Back in 2022, at the time of the last World Cup hosted by Qatar, I outlined several problems that needed to be fixed in order to avoid various evils associated with past World Cups and Olympic games. Let's see how the US has done on each one:

1. No public subsidies. Let the games be funded purely by private organizations and sponsors, as was largely the case for the successful 1984 Olympics in Los Angeles. That way, no one has to pay for the games, except those who profit from them and the audience that voluntarily chooses to watch.

This has largely been achieved, primarily because US host cities have used existing stadiums, obviating the need to build new ones. This eliminates by far the biggest cause of the World Cup's exploitation of taxpayers. There have still been some public expenditures on things like traffic management and security. But protecting people against crime and terrorism, and managing public infrastructure are basic functions of government that the state provides for events of all kinds. There is no good reason to exclude major sporting events. Anarchists (including libertarian ones) can consistently condemn such spending. But that goes to philosophical issues that go far beyond sports events.

2. No forcible displacement of residents, private businesses, or civil society organizations. We can and should hold sports events without kicking innocent people out of their homes.

As far as I can tell, this has been entirely avoided. And it's in sharp contrast to the record of many past Olympic and World Cup hosts, such as Brazil and China.

3. No hosting rights for authoritarian human rights violators. There are plenty of possible Olympic venues that aren't controlled by likes of Vladimir Putin and Xi Jinping, or the Emir of Qatar. Denying these types of rulers hosting rights won't fundamentally alter their regimes. But it will at least damage their image and deny them propaganda victories.

Even under Trump, the US is nowhere near as bad as Russia, China, or Qatar. The fact that I regularly denounce Trump and even helped litigate a case against him in the Supreme Court, with little fear of reprisal, is one small but telling indication of the difference. That said, Trump's cruel and discriminatory immigration policies (which victimize US citizens as well as recent migrants), and his assaults on freedom of speech make the contrast smaller than it should be.

So far, however, Trump does not seem to have derived much, if any, propaganda benefit from hosting the Cup. That may be in part because his attention is focused elsewhere.

4. There must be full freedom of speech at all competition venues and in all interactions between competitors, media, and the local population. At the very least, athletes, journalists, and spectators should be entirely free to criticize the host government and its policies (or any other government for that matter).

This standard has also largely been met, thanks in large part to the First Amendment and its strong protection for speech. The city of Seattle deserves credit for refusing the Egyptian and Iranian governments' demands to bar local Pride celebrations, which happened to coincide with the match between these two countries' teams. This is a sharp contrast with Russia's and Qatar's authoritarian restrictions on pro-LGBT speech.

The Trump Administration's speech-based deportations and exclusions of immigrants and visitors have cast a pall over this issue. But courts have so far largely ruled against Trump on these issues. And it does not appear that any World Cup players, fans, or officials have been deported or barred on this basis (though some fans and a referee have been subjected to other arbitrary visa restrictions).

5. There must be no "public health" measures blocking normal human interaction between athletes, members of the media, and residents of the host city. Such measures defeat the whole point of having the competition in a particular country in the first place.

This was a serious problem at the 2022 Beijing Olympics. It has not been an issue at the 2026 World Cup.

I will add that the World Cup has generated many heart-warming moments of Americans welcoming foreign players and fans, which has helped the world to see that most Americans do not share the xenophobic nationalism of the Trump Administration.

In sum, the US record on the types of issues and injustices that have marred past Olympics and World Cups is by no means perfect. And the structural corruption of FIFA (the organization running the Cup) remains. The organization has a history of fleecing taxpayers, conniving in forcible displacement of residents to build stadiums, and kowtowing to authoritarians. There is no guarantee that it won't repeat past abuses during future Cups. The same goes for the International Olympic Committee, which runs the Olympics.

But the current World Cup has been much better in crucial respects than those held by other recent hosts, such as Brazil, Russia, and Qatar. We should learn from that experience, and liberal democracies should pressure FIFA and the IOC to adopt systematic reforms that will permanently preclude these abuses.

The post How the US Has - Mostly - Avoided the Dark Side of the World Cup appeared first on Reason.com.

From Judge Randolph Moss (D.D.C.) Monday in Accountability Now USA v. Griess, decided Monday (correctly, I think):

Plaintiff Accountability Now is an unincorporated association that holds a permit from the NPS [National Park Service] to conduct "a demonstration near the George Meade Statue on Constitution Avenue in Washington, D.C." "Volunteers maintain the demonstration twenty-four hours a day, seven days a week" at which they "engage in face-to-face conversations with members of the public[] to call attention to the rise of fascism in the United States and [to] demand the impeachment of President Trump." Plaintiff's "current permit was issued on April 13, 2026, and is valid through August 12, 2026[,]" and Plaintiff "intends to obtain another permit when the current permit expires, at the same or another location on NPS-managed land in the District of Columbia."

On February 24, 2026, in response to reporting "that the Justice Department was withholding more than 50 pages of FBI interviews with a woman who had accused Donald Trump of sexually abusing her when she was a minor[,]" Plaintiff began to display two new signs at the demonstration. One sign reads: "TRUMP RAPED LITTLE GIRLS." The other reads: "KIDS, IF YOUR PARENTS ARE MAGA, THEY LOVE CHILD RAPISTS." According to Plaintiff, "[t]he display of those signs has engendered numerous conversations between volunteers and passersby regarding President Trump's behavior, morality, and fitness to continue in office." … [Plaintiffs allege that] NPS agents requested that the two child rape signs be taken down, although it is not clear whether the NPS officials provided a reason for the request during the conversation…

Under the well-known standard articulated in Miller v. California (1973), speech is obscene if (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest," (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state [or federal] law," and "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value…. Understandably, Defendants have now conceded that the two signs at issue are not obscene as to adults. Indeed, to argue otherwise would be to suggest that virtually every news outlet in the country violates the obscenity laws every time it refers to allegations of rape or rape of a minor.

Nor can one plausibly maintain that the First Amendment affords no protection to those who accuse high ranking government officials of having committed sex crimes, including the rape of a child. Allegations of rape, standing alone, do not appeal to any prurient or unwholesome interest in nudity, sex, or excretion; they do not describe sexual conduct in a patently offensive way, and, indeed, do not describe a particular sex act at all; and they do not lack all serious political value. To the contrary, "'[o]bscene antigovernment' speech, … is a contradiction in terms: If expression is antigovernment, it does not lac[k] serious … political … value' and cannot be obscene."

Recognizing the futility of arguing otherwise, Defendants do not argue that the two rape signs are obscene in general, but, rather, only obscene as to minors. Because "States have a specific interest in protecting children from sexually explicit speech," the government "may prevent children from accessing speech that is obscene to children," in a manner subject only to rational basis review "even though [that speech may] encompass speech that is 'not obscene for adults.'" Free Speech Coal., Inc v. Paxton (2025). ["]A State may prevent minors from accessing works that (a) taken as a whole, and under contemporary community standards, appeal to the prurient interest of minors; (b) depict or describe specifically defined sexual conduct in a way that is patently offensive for minors; and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors." Id. (emphases in original). And although the restriction on children's access to such material is subject only to rational basis review, "[t]o the extent that [the restriction] burdens adults' rights to access such speech" incidentally, the restriction is "subject to intermediate scrutiny."

Here, it is far from clear that either of the signs at issue is properly evaluated under the obscene-as-to-minors standard. Defendants hang their entire argument on the fact that one of the two signs opens with the salutation, "KIDS," before stating "IF YOUR PARENTS ARE MAGA, THEY LOVE CHILD RAPISTS[,]" The other sign at issue omits any such salutation and merely asserts: "TRUMP RAPED LITTLE GIRLS." As to that sign, counsel for the government conceded at oral argument that "viewed in isolation, … the second sign would be neither obscene nor obscene as to minors" but urged the Court to "view these signs as … one integrated message," the second of which merely "elaborate[d] on the other." Although Defendants acknowledge that "incidental viewers from a particularly vulnerable class—like children—do not wield a veto over speech that is suitable for the public at large," they maintain that this case is different because "Accountability Now's speech, on its own terms, was not directed to the public at large—it was directed at and tailored to 'KIDS.'"

That characterization of the speech is a stretch. As Carey explains in her uncontroverted declaration, the message is far broader than Defendants contend. It is clearly "directed at all the people who visit [the] demonstration," and it invites parents to "think about what lessons their children are learning if they see their parents" supporting the President. Notably, the sign was displayed as part of a demonstration calling for President Trump's impeachment and removal from office, and the demonstration is located on a busy street in front of a federal courthouse. The demonstration is not at or near a school or playground, where children are often unaccompanied by their parents. Nor were the signs included in children's television programing or online or at a place that young children can often access without their parents' knowledge. Although children "sometimes visit [the] demonstration site," the government offers no evidence that it considered whether or how often children might see the sign before acting—or, indeed, that it was aware that a single child had seen the signs.

Defendants' regulation of these publicly visible signs, moreover, is a far cry from the sorts of regulations targeting the direct distribution of sexual content to minors …. The Court is, therefore, unpersuaded that Defendants' actions are reasonably characterized as the direct regulation of "sexual material harmful to minors" that has "only an incidental effect on" "adults' rights to access such speech." …

But even putting that threshold difficulty aside, Defendants' contention that the two signs are obscene as to minors fails for multiple reasons:

First, the signs, "taken as a whole, and under contemporary community standards," do not "appeal to the prurient interest of minors." "[P]rurient interest[s]" are "shameful or morbid interest[s] in nudity, sex, or excretion." … Defendants maintain that this factor is satisfied because Plaintiff's signs "predominantly invoke[ ] in minors a 'shameful or morbid interest' in violent and unlawful sex," and "piques minors' 'shameful and morbid interest' in a particularly repugnant and criminal category of sex."

Their argument borders on the absurd. Accusations of rape—and, in particular, rape of a child—are undoubtedly disturbing. But they do not pique a shameful or morbid interest in that repugnant and criminal act. Here, moreover, Plaintiff's signs unequivocally condemn "child rapists" or those who "raped little girls." They do not, by any stretch of the imagination, "deal[ ] with sex in a manner appealing" to minors' shameful interest in child rape or pedophilia. To be sure, rape involves sexual contact of some form. But that is the extent of it, and "[s]ex and obscenity, … as the Supreme Court has held, are not synonymous."

Second, Plaintiff's signs do not "depict or describe specifically defined sexual conduct in a way that is patently offensive for minors." Patently offensive materials "go[ ] substantially beyond customary limits of candor and affront[ ] contemporary community standards of decency." As with prurient appeal, patent offensiveness may be measured by the standard that prevails in the state or forum community. Defendants' claims with regard to this factor are even further afield. They contend that the signs "accost[ ] children with a graphic description of violent sexual crimes" and "explicitly refer to a sexual act and use the term 'RAPE' in its ordinary criminal sexual sense." Neither sign, however, includes any description of the alleged sexual crimes, much less a "graphic" one. Indeed, neither sign "depicts or describes" any sexual contact at all, beyond conveying that it was non-consensual (perhaps due to force, or perhaps due to the age of the alleged victims) and that the victims were minors. By Defendants' logic, To Kill a Mockingbird, The Color Purple, A Tree Grows in Brooklyn, Tess of the d'Urbervilles, Leda and the Swan, The Rape of the Sabine Women, and the biblical story of Dinah and Shechem (Genesis 34) would all fail this prong of the obscene-as-to-minors test. That, of course, is not the law.

Finally, Defendants do not—and cannot—show that the two signs lack any "serious … political … value" for minors. The signs constitute a direct response to current events: news reporting that "the Justice Department was withholding more than 50 pages of FBI interviews with a woman who had accused Donald Trump of sexually abusing her when she was a minor." The signs "ha[ve] engendered numerous conversations between volunteers and passersby regarding President Trump's [alleged] behavior, morality, and fitness to continue in office," id., topics that are plainly a "matter[ ] of political concern." Although Defendants maintain that the signs "frustrate [healthy political discussion] by explicitly accusing many parents of loving child rapists," it is neither the government's nor the Court's role to distinguish healthy from unhealthy debate and discussion of topics of national importance. The same is true of Defendants' contention that because the signs fail to "explain that they are mere rhetoric or innuendo," minors will not "understand their veiled meaning, related conspiracy theories, or the broader political context to which the signs vaguely allude." In pressing this argument, Defendants concede that the signs constitute political discourse, and they appear to acknowledge that the signs were not, in fact, targeted at children—a contention at odds with their vehement assertion that children are "the target audience" of these signs. But most problematically, Defendants incorrectly suggest that the NPS may exercise its permitting authority to police the content of speech and to ensure that it is not misleading—at least as to minors. Emphatically, that is not the role of the government or the Court.

Along similar lines, Defendants characterize the signs as raising sexual misconduct allegations that are "frivolous[ ]" and that propagate "conspiracy theories." But if anything, those assertions undermine the government's defense; the government lacks authority to regulate the content of political speech, particularly political speech that is critical of the government or senior government officials, based on the belief that the speaker has it wrong….

{Defendants do not contend that the speech at issue is libelous under the actual malice standard applicable to public figures, see New York Times Co. v. Sullivan (1964), nor would the NPS have authority to take an enforcement action based on such a theory.}

For all of these reasons, the Court concludes that Plaintiff's signs are protected speech, not obscene as to minors…..

The Court, accordingly, concludes that Defendants' conduct violates Plaintiff's First Amendment rights with respect to the two signs at issue and will grant summary judgment in Plaintiff's favor with respect to its First Amendment claim challenging the NPS's direction that it remove the two signs under threat of revocation of its permit.

The court also held that an "86-47" flag displayed by the protesters was constitutionally protected, for reasons similar to those the court gave a month ago when issuing a temporary restraining order (see this post). Arthur Spitzer, Aditi Shah, and Laura Follansbee (ACLU D.C.) represent plaintiff.

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Lights along the beach can create problems for turtles. Bright lights at night can disorient sea turtle hatchlings and prevent them from crawling into the sea. Sufficient beachfront lighting might even constitute a prohibited "take" of Loggerhead sea turtles and other turtle species listed under the Endangered Species Act.

Assume that the erection or maintenance of beachfront lighting in turtle habitat is a take under Section 9 of the ESA. Could a state or local government's decision to allow such beachfront lighting--either by permitting it or perhaps just failing to prohibit it--also be a take under Section 9? And, if so, could the ESA require a state or local government to take action against private landowners who erect or maintain beachfront lighting when sea turtles are reproducing? Would such a requirement be constitutional? I think not.

Holding state and local governments liable under the ESA for licensing, permitting, or failing to control private conduct violates the anti-commandeering principle, or so I argue in my article, "Conservation Commandeering," forthcoming in a Catholic University Law Review symposium. Nonetheless, courts impose this sort of vicarious liability on state and local governments with some frequency, most often in response to citizen suits filed under the ESA by environmental groups. Cases have involved state agency's failing to impose sufficiently stringent limitations on fur trapping or fishing, among other things. In this post I noted a case pending in the U.S. Court of Appeals for the Eleventh Circuit concerning Florida's alleged failure to adequately regulate septic systems. At the moment, most district courts to have considered such claims have rejected commandeering-based arguments. In my view, they are wrong, and imposing liability in such cases is hard to square with the Court's federalism jurisprudence.

I have just posted a draft of the article on SSRN. Here is the abstract:

The Endangered Species Act (ESA) prohibits anyone-including state and local governments-from "taking" protected species without a permit. Courts have extended this prohibition to impose vicarious liability on state and local governments, holding that a government's failure to regulate private activities sufficiently harmful to listed species may itself constitute an illegal take. This Article argues that such "conservation commandeering" cannot be reconciled with the Supreme Court's anti-commandeering jurisprudence. Under current doctrine, the federal government may not compel state and local governments to enact or administer regulatory programs implementing federal law, nor may it prohibit states from licensing or authorizing private activity. Requiring states to restrict private conduct as a condition of avoiding ESA liability does precisely what these decisions forbid. This Article further argues that enforcing the anti-commandeering principle need not undermine species conservation. The ESA's cooperative federalism provisions and existing tools for inducing voluntary state participation offer workable alternatives-ones that respect both constitutional structure and the practical importance of state and local cooperation in protecting listed species.

Comments are welcome.

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