The broader context, from Judge VanDyke's opinion dissenting from denial of rehearing en banc in Whitfield v. Mullin, joined by Judges Patrick Bumatay and Eric Tung; the question Judge VanDyke is confronting is when a Ninth Circuit precedent stops being binding on future panels because it's inconsistent with intervening Supreme Court precedent:

[T]his case illustrates (yet again) a more fundamental problem within our circuit: Miller v. Gammie's improper demand that our own circuit's precedent be privileged over the Supreme Court's more recent instructions unless our precedent is "clearly irreconcilable" with what the Supreme Court has subsequently told us. 335 F.3d 889, 893 (9th Cir. 2003). This prevents three-judge panels of our court from applying more recent Supreme Court authority whenever it is merely inconsistent with our own. The effect of this rule is both obvious and obviously wrong—we systematically hold the Supreme Court's instructions about the right answer to any number of legal questions in lower regard than our own wrong precedents….

The reality is that our en banc court is often unable or unwilling to fix things at odds with Supreme Court precedent. Sometimes, the obstacle is simply institutional inertia; the costs of en banc review make correction burdensome enough that erroneous precedent persists by default. We are a very busy court, and we can't be expected to take every case en banc that presents a legal issue where subsequent Supreme Court authority is inconsistent with, but not "clearly irreconcilable" with, our own.

But that is not the only problem with Miller's rule. The effect of that inverted rule is especially insidious (and no doubt intentional) when our precedent involves one of the many contested legal questions where our circuit's ideological commitments are at odds with what the Supreme Court has recently told us. In those instances, it is very unlikely a majority of our court would ever vote to take a case en banc to abandon the majority's own preferred doctrinal approach, even after the Supreme Court has undermined its foundation. Judge Reinhardt famously announced the Ninth Circuit's motto: the Supreme Court can't "catch 'em all."

Miller's strictures ensure that the Supreme Court's guidance will, for the most part, be limited in this circuit to only those instances where the Court actually "catches" a specific case—that is, where it actually grants review and issues a binding opinion in that case. And even in that rare instance, Miller ensures that whatever guidance the Supreme Court provides will have little spillover effect beyond the very narrow issue actually decided by the Court in that case. Everything else is not "clearly irreconcilable" (judges and lawyers alike are, after all, pretty good at distinguishing), so three-judge panels of this court that would very much like to follow the Supreme Court's recent guidance can't. And those who would very much like to avoid the Supreme Court's guidance can do so simply by not voting to take a case en banc.

The consequence is perverse. To correct our circuit's many erroneous precedents and ensure litigants can benefit from intervening Supreme Court decisions, the Supreme Court will have to take case after case after case and reverse them all, slowly, over the course of decades, one by one by one, as it has done so many times before.

The Supreme Court should not have to keep trimming the same poison ivy one tiny branch at a time. There are many judges on our circuit who would be glad to do the right thing and apply the Supreme Court's guidance in three-judge panel decisions whenever that guidance is inconsistent with our circuit's own earlier precedents. By overturning Miller in this or some future case, the Supreme Court would remove a perverse rule that entrenches erroneous precedent in this circuit, enabling three-judge panels to help hack away at the overgrowth. Help us help you.

The Supreme Court should take up this case to correct our circuit's erroneous "serious questions" rule [that's the debate in the underlying case, which has to do with the standard for granting preliminary injunctions]. But while it's at it, why not also correct Miller's "clearly irreconcilable" standard? Addressing the former will eliminate one of many legal doctrines in our court that are inconsistent with subsequent Supreme Court authority. But also addressing the latter would do much more to conform the Ninth Circuit's law to the Supreme Court's—without the Supreme Court's needing to exhaustively address every single error seriatim.

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On October 4, I published a post on "Libertarianism and Democracy," critiquing political philosopher Matt Zwolinski's earlier Liberalism.Org article on the same topic. Earlier today, I posted Matt's response to me. The present post is my rejoinder:

I would like to thank Matt for his interesting and insightful response. We agree on several key points, including that democracy is generally superior to authoritarianism, that libertarian critiques of democracy have great merit, and that - in much of the world - the most serious threats to liberty now come from the nationalist right, rather than the the political left. But we still differ on a few key points related to libertarianism and democracy.

The Nature of Libertarian Critiques of Democracy

Perhaps the most crucial disagreement is about the nature of libertarian critiques of democracy. Matt suggests that "[m]ost of what Ilya calls the libertarian critique of democracy is really a critique of big government." If so, libertarians can just focus on criticizing big government generally, while simultaneously extolling democracy.

There are indeed flaws of big government that arise regardless of whether it is democratic or authoritarian. But those outlined in my earlier Liberalism.Org article are in fact specific to democracy. They include tyranny of the majority, voter ignorance, and the tendency of democracy to create opportunities for illiberal forces to seize power and - in the worst case scenario - even destroy democracy itself.  Tyranny of the majority is obviously a problem distinctive to democracy. The same goes for rational voter ignorance, which arises from the perverse incentive structure  of individual voters, who have only an infinitesimally small chance of influencing electoral outcomes. And, while illiberal forces can and do seize power under authoritarian systems, the pathways democracies (usually involving the electoral process) create for them are distinctive.

Authoritarian systems have their own distinctive flaws, which are generally even worse. But the distinctive nature of democracy's flaws means they cannot simply be folded into a generic critique of big government. In addition, as noted in my response to Matt, these distinctive flaws of democracy are at the heart of many of today's most serious threats to liberty and justice in many democratic systems, including the threats posed by the nationalist right. Thus, it is important for libertarians to emphasize the nature and gravity of these weaknesses, and the value of our proposals for dealing them (which in many cases are different from and better than those advanced by other types of liberals). As emphasized in my earlier response, this is an area where libertarians often have a comparative advantage over other liberals. On the other hand, we generally do not have a comparative advantage when it comes to explaining why democracy is better than authoritarianism.

Along related lines, Matt suggests that libertarian critiques of the state aren't "an argument against democratic control of whatever the state does do." But once we recognize that democracy has significant distinctive flaws, there is actually a case for insulating some functions of government from democratic control. Obvious examples include the judiciary and monetary policy (unless we want to cut government out of the latter entirely, and adopt free banking). Indeed, even most non-libertarian liberals recognize that such insulation is desirable in some cases, most notably the courts.

The Problem of Libertarians Tempted by Authoritarianism

Matt argues that we should, nonetheless devote extensive energy to extolling democracy, because doing so is likely to have an impact on fellow libertarians who may otherwise be tempted to embrace authoritarianism. It is likely true that libertarians tempted in this way are more easily dissuaded by other libertarians than by non-libertarians. But such people are a tiny minority within an minority. Libertarians are a small group (probably around 5-10% of the US population or even less, depending on how you draw the line). Those sympathetic to authoritarianism are much fewer still. Thus, it makes little sense to devote more than a modest amount of time and effort to dealing with them, as opposed to addressing the much larger group of non-libertarian liberals who need to be more cognizant of the dangerous shortcomings of democracy.

Moreover, when we look at libertarians who have shifted to the "alt right" or otherwise become advocates of illiberal ideas, the problem in most cases is not excessive skepticism of democracy, but insufficient commitment to liberty - particularly, the liberty of people from different ethnic, racial, or religious backgrounds, that of migrants, and those with unconventional lifestyles. That is pretty obviously the case with Curtis Yarvin and Hans-Hermann Hoppe, both mentioned by Matt. The former's advocacy of a "post-liberal" ideology of repression (which is really based on pre-liberal models) is pretty obviously not the product of a man who thinks authoritarianism is a better way to protect liberty than democracy. Indeed, his concern is exactly the opposite (that democracy allows for way too much liberty). The same goes for Hoppe's advocacy of repression of immigrants, gays and lesbians, and people with various non-traditional lifestyles. Peter Thiel, the third case mentioned by Matt, is that of a person who has abandoned libertarianism for "national conservatism," an ideology focused on exalting the interests of ethnic and culture majorities and using the state to punish perceived "enemies." To the extent we want to focus on dissuading such people, it should be to reemphasize the value of liberty for all, not extolling the virtues of democracy. People who value democracy more than liberty are generally unlikely to become libertarians in the first place.

Two  Smaller Issues

Matt and I also have a modest disagreement over whether there can be situations where some form of authoritarianism can be a lesser evil compared to democracy. I think such cases are extremely rare, but not nonexistent. Matt's position is less clear, and perhaps I misunderstand him. But he does seem to want to deny this possibility. In response to my examples of the allied occupations of Germany and Japan after World War II, he seems to think these don't really count because "those occupations were run by democracies answerable to their own voters, and they ended." But they were still cases where non-democratic government was imposed on a population, and that population itself did not have control over when and if it would end.

In these cases, a non-democratic occupation government was a lesser evil than immediate establishment of democracy, because of the highly illiberal nature of German and Japanese majority public opinion at the time.  Similar circumstances can potentially arise in other countries. And, in some cases, a domestically generated authoritarian regime might still be a lesser evil than any democracy that is feasible at the time.

In some situations, the problem can be dealt with by limiting democracy, rather than abjuring it completely. For example, as noted in my earlier response, post-occupation West Germany long banned Nazis and communists from competing in elections, but otherwise committed to free electoral competition. But there could be situations where such constraints are not enough. Because such cases are highly unusual, this is not a particularly important disagreement. But it does have relevance in situations where we consider how to deal with a society where majority public opinion is deeply illiberal.

Finally - and least important - Matt differs with me about the use of the terms "libertarian" and "classical liberal," arguing that the former are more likely to be democracy-skeptics than the latter. We can, if we want, define the two terms in such a way that people we label with one are generally more suspicious of democracy than those we label with the other one. But that is not the way the terms are typically used. That said, different people use these terms in different ways. To my mind, they are mostly just alternative labels for the same general ideology. But I don't have much of a beef with people who prefer to use them differently than I do, so long as they make clear what they mean.

Ultimately, Matt and I agree on much more than we differ. But a few of the issues we differ have real significance. I am grateful for the opportunity to consider them.

The post Libertarianism and Democracy Revisited - A Rejoinder to Matt Zwolinski appeared first on Reason Magazine.

On October 4, I published a post on "Libertarianism and Democracy," critiquing political philosopher Matt Zwolinski's earlier Liberalism.Org article on the same topic. Matt has written a response to me, which I have agreed to post at this site. The remaining paragraphs of this post were written by Matt Zwolinski, not me (Ilya Somin). I have posted a rejoinder to Matt's thoughtful response here.

Who Should Defend Democracy?

A reply to Ilya Somin

My recent Liberalism.org essay, "Democracy Belongs on the List," made the case that classical liberals should count democracy among their core commitments, alongside private property, free markets, and the rule of law. And it belongs there for the same reason. Like property rights and markets, democracy is a crucial way of keeping power in check.

Ilya Somin has written a generous and thoughtful reply to that piece. And I think he actually agrees with me more than the framing of his post might suggest. Ilya grants that democracies are generally freer and more prosperous than the alternatives, that democracy is "a valuable check on power," that libertarians should arguably stress these points "more often," and that "in much of the world today, right-wing nationalists pose a greater threat to libertarian values and priorities than the political left does." What's left mainly comes down to two questions: what counts as a libertarian critique of democracy, and whose job it is to defend democracy.

Before turning to those substantive issues, though, there's one terminological matter that's worth clearing up. Ilya says that nothing of significance hinges on whether we call our view "libertarian" or "classical liberal." And on most questions I'd agree. On this one, though, I think the difference matters. In The Individualists, John Tomasi and I draw a distinction between strict libertarians and classical liberals. The former group tends to treat liberty as a moral absolute and to derive their politics from a single overarching principle like the non-aggression axiom. Think Murray Rothbard or Ayn Rand. The latter treat liberty as a strong but defeasible presumption and are more empiricist and pluralistic in their approach to politics. Think Friedrich Hayek or Richard Epstein.

My sense is that these two camps within the broader "liberty movement" have taken pretty different stances toward democracy, with strict libertarians being much more critical than their classical liberal brethren. Even back in the 19th century, you could find Benjamin Tucker insisting that voting is always a form of aggression, and Lysander Spooner arguing that women "have just as good a right to make laws as men have, and no better: AND THAT IS JUST NO RIGHT AT ALL." Herbert Spencer was even willing to walk back his support of women's suffrage once he decided that women would probably use their vote to support bigger government. That's a pretty different take than anything you're likely to find in Ludwig von Mises or Friedrich Hayek (more on whom later), let alone in John Stuart Mill.

That brings us to the first of the two substantive issues under dispute. Ilya argues that recent events have made libertarian critiques of democracy more important than ever, and that the libertarian solutions to democracy's flaws are "primarily to limit and decentralize government power." I'm with him on that, but I don't think this settles, or even really addresses, the debate about democracy. Limiting and decentralizing government power is a claim about the scope of the state, about how much government should do. It's a principle that would apply to any government, whether democratic or not. And, crucially, it isn't an argument against democratic control of whatever the state does do.

That distinction was at the heart of my essay. Following Jacob Levy, I argued that classical liberals have let a perfectly sound critique of too much government slide into a skepticism about democracy itself, treating democracy, in Levy's words, "as if the contrast to 'democratic' were 'economic' rather than 'autocratic.'" One can be a radical about reducing the scope of the state and still insist that its agents must be answerable to the people they govern. Most of what Ilya calls the libertarian critique of democracy is really a critique of big government. That's an argument I largely agree with, as far as it goes. The trouble comes when we file it under the wrong heading. When we ourselves blur the line between critiques of state power and critiques of democracy, we shouldn't be surprised when people come away thinking libertarians are against democracy.

That brings me to comparative advantage, which is where I think Ilya's argument is most interesting but also most mistaken. Libertarians are a small minority, he says, and "we have no comparative advantage when it comes to extolling the virtues of democracy relative to authoritarianism. Other types of liberals can do this work just as well as we can, perhaps better." So we should stick to what we do best, which is analyzing democracy's flaws.

This argument might make sense in some contexts. But as a general principle, I think it misfires, and it misfires most badly when the audience is classical liberals and libertarians themselves. That, after all, is where the turn against democracy has actually happened. Hans-Hermann Hoppe's Democracy: The God That Failed argued that monarchy was preferable to democracy, and complained that "habitual democrats" had been tolerated rather than "isolated, excluded and expelled from civilization." Curtis Yarvin, who came to neoreaction by way of libertarianism, credits Hoppe with opening "a kind of door to the pre-revolutionary world" for him. And in 2009, Peter Thiel wrote in a Cato Institute publication that "I no longer believe that freedom and democracy are compatible." None of this follows from the libertarian critique of voter ignorance, and nothing Ilya has written points in this direction. But it grew in a movement where, as Janet Bufton recently put it in Liberal Currents, "even liberal libertarians were taught arguments about why democracy fails," and hardly anyone was making the case for democracy on libertarian terms. Any old liberal can explain to the public why democracy beats dictatorship. But a libertarian drifting toward Hoppe or Yarvin isn't going to listen to them. Only libertarians can tell libertarians that democracy is theirs.

So if democracy is a libertarian value, what kind of libertarian value is it? Ilya argues that democracy shouldn't be "a first-order libertarian priority, on par with liberty, constraining coercion, property rights, and increasing human happiness," because its value is instrumental rather than intrinsic. I agree that the value of democracy is instrumental. In that way, it's in precisely the same position as a number of items on the classical liberal list. Free trade, federalism, judicial review, and the rule of law are instrumental too. What I want to resist is the claim that because democracy is only instrumentally valuable it's therefore dispensable – something that can be traded away whenever we can imagine something better. What we can imagine, though, is a poor guide to what works. The better question, as David Schmidtz argues, is what has "an observable history of leading self-interested agents to act in ways that are useful and agreeable to the people around them," and by that test democracy has very few rivals.

Which leaves us with Hayek. Ilya defends Hayek's preference for "a liberal dictator to a democratic government lacking liberalism" as a claim about rare hypothetical cases, and suggests that transitional non-democratic rule "may be necessary" in places like Russia and China, citing the Allied occupations of Germany and Japan. But those occupations were run by democracies answerable to their own voters, and they ended. Russia and China, in contrast, have no outside power that could impose a transition and then hand power back. The only realistic candidate for transitional power in those countries is a domestic strongman, which is exactly the case Hayek had in front of him. Hayek wasn't musing about hypotheticals; he was talking about Chile.

Ultimately, Ilya and I want the same thing. We both advocate a form of libertarianism that resists concentrated power wherever it appears, including when it arrives through the ballot box. Where we differ is on the need to say out loud that democracy is one of the ways we resist it. I think we should, and I think libertarians are better placed to say it than anyone, since the people who most need to hear it are our own.

The post Who Should Defend Democracy? appeared first on Reason Magazine.

N.C. Detective Agency, a Durham-based security company, will pay $65,231 in compensatory damages and back pay, and take other corrective actions to voluntarily resolve a religious discrimination investigation by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC's investigation found reasonable cause to believe that an employee requested to be excused from work due to a Muslim religious holiday, but the request was denied. The company was aware of the employee's need for a religious accommodation but did not engage in the legally required interactive process, and instead terminated her in June 2025 when she did not report for duty.

And from another press release two weeks later, also just posted on Westlaw:

Reynolds IGA Foodliner, Inc., owner and operator of a chain of grocery stores, will pay $65,000 and provide other equitable relief to settle a religious discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the suit, shortly after she was hired as a deli clerk at the Piggly Wiggly store in Hazlehurst, Georgia, the employee requested Sundays off to observe her Sabbath. The employee's supervisor denied the request, claiming that, if the store gave the employee Sundays off, it would have to do the same for all other employees. The employee continued to request the accommodation, and the company fired her in January 2025.

More from the second press release:

"Employers cannot deny religious accommodation requests simply for fear of upsetting other employees," said Marcus G. Keegan, regional attorney for the EEOC's Atlanta District. "The EEOC remains committed to enforcing federal anti-discrimination law and protecting employees' rights to religious freedom."

Darrell E. Graham, director of the EEOC's Atlanta District, said, "Employers must thoughtfully consider each request for religious accommodation on an individual, case-by-case basis and otherwise make good-faith efforts to accommodate their employees' religious beliefs. Employers must be aware of their obligations under federal law to provide reasonable religious accommodations absent undue hardship."

Finally, from a third press release from last month (it was published in between the first two, but was again just posted on Westlaw); this one involves a lawsuit and not a settlement:

Blue Bell Creameries, Inc., a Brenham, Texas-based frozen snack manufacturer and distributor with a production facility in Sylacauga, Alabama, unlawfully terminated a Jewish body shop technician soon after he requested a beard‑related religious accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.

Even supporters of bans on religious discrimination by private employers might debate whether employers should be required to give religious exemptions from generally applicable rules (exemptions that could themselves be seen as discrimination in favor of religious observers). But Congress has indeed mandated such exemptions: Title VII of the Civil Rights Act, as amended in 1972, generally requires employers to accommodate religious objectors' requests for exemptions from generally applicable work rules, unless doing so would pose an "undue hardship" for the employer.

That extends to time off for religious holidays: Indeed, the leading recent case on the subject, Groff v. DeJoy, involved a Christian employee's request for an exemption from having to work Sundays. And of course it extends, as it must, to all religions.

The post $65K Settlements with EEOC Over Failure to Accommodate Muslim and Christian Employees' Religious Days Off appeared first on Reason Magazine.

So reports the N.Y. Times (Mark Arsenault) yesterday, discussing former MIT cellular biology professor David Sabatini's victory on the defamation claim (and defendant's loss on her harassment and retaliation counterclaim). More details:

[Sabatini] was forced out of his lab in 2021 after an internal Whitehead [Institute] investigation concluded he had a past sexual relationship with a younger and less experienced colleague, Kristin Knouse, over whom he had a career-influencing role. The investigation also found that his lab had maintained a sexualized atmosphere. Dr. Knouse said that the relationship was coerced.

But Dr. Sabatini denied his lab had an improper atmosphere. He maintained that his relationship with Dr. Knouse had been consensual and that Dr. Knouse had schemed to get him fired and disgraced after he became interested in another woman….

After he was pushed out of M.I.T. and the Whitehead, he had talks with New York University about a job. But N.Y.U. staff members and students protested in the streets against his hiring in 2022, and the university did not hire him.

In 2023, he was hired by the Institute of Organic Chemistry and Biochemistry, in Prague, and later opened a Boston-area branch of that institute….

According to the Boston Globe (Madyline Swearing, Bryan Hecht & Tonya Alanez), "In 2023, New York hedge fund billionaire Bill Ackman and an anonymous donor pledged $25 million over five years to help Sabatini get back into science." The Globe also reports that the jury consisted of "seven women and six men," for whatever that's worth.

Here's an excerpt of what Sabatini alleged (quoting a Massachusetts appellate decision in the case, later reversed as to Knouse's counterclaim by the Massachusetts high court):

Sabatini and Knouse met in 2012. At the time, Sabatini was a tenured member of the department of biology at the Massachusetts Institute of Technology (MIT) and ran his own laboratory at Whitehead, a research institute affiliated with MIT that receives funding from private resources such as the Howard Hughes Medical Institute (HHMI) and public resources such as the National Institutes of Health (NIH). {As pertinent here, Whitehead and HHMI have a relationship whereby HHMI provides funding for, and in some instances employs, individuals working at Whitehead. At all relevant times, both Whitehead and HHMI employed Sabatini. In addition, NIH provided grants that funded Sabatini's research at Whitehead.}

Knouse was enrolled in an inter-institutional M.D./Ph.D. program at Harvard and MIT, where Sabatini was one of her instructors and served on her thesis committee. While Knouse was a doctoral student, she and Sabatini sometimes socialized.

Then, in 2018, Knouse started a fellowship at Whitehead, and she and Sabatini began a sexual relationship. While the relationship ended in 2019, Knouse sent text messages to Sabatini in January 2020 seeking to rekindle their relationship. Sabatini responded, asking Knouse to stop and stating that he wanted peace and needed space to figure things out.

In early 2020 through the fall of 2020, Knouse began telling colleagues, both at Whitehead and MIT, that Sabatini had sexually harassed her. In October 2020, Knouse reported the alleged sexual harassment to Lehmann. Around that time, Whitehead hired a consultant to conduct a diversity survey at Whitehead. During the survey, some Whitehead employees reported concerns about Sabatini. In response, Whitehead hired the law firm of Hinckley, Allen & Snyder LLP (HAS) to investigate the culture within Sabatini's laboratory. The HAS investigators spoke with Knouse and other members of the Whitehead community. In interviews with the HAS investigators, Knouse repeated her allegations that Sabatini had sexually harassed her.

On August 13, 2021, HAS sent a report to Whitehead finding that Sabatini had committed sexual harassment. Whitehead forwarded the report to MIT and HHMI. On August 19, Whitehead provided Sabatini with a copy of the report. On August 20, Sabatini resigned after learning that Whitehead was about to terminate his employment. {Before Sabatini resigned, his coemployer at Whitehead, HHMI, terminated his employment. MIT placed Sabatini on leave.}

And here's what Knouse alleged (quoting the Massachusetts high court decision); the jury verdict suggests that the jury largely believed Sabatini's story rather than Knouse's:

Sabatini was a laboratory director at the Whitehead Institute for Biomedical Research (Whitehead) and a tenured professor at the Massachusetts Institute of Technology (MIT) in 2012 when he met Knouse, then a graduate student at Harvard University and MIT. Sabatini was one of Knouse's instructors at MIT and served on her dissertation committee.

During a discussion in 2016 concerning whether Sabatini would endorse Knouse's application for an upcoming fellowship at Whitehead, Sabatini expressed concern that Knouse took herself too seriously and asked Knouse whether she ever had "fun," "fuck[ed] around," or had sex. Knouse responded that she did have fun and quickly left the conversation. Subsequently, Sabatini recommended Knouse for the fellowship and supported her grant application, both of which she secured.

Knouse joined Whitehead as a fellow in 2018. That year, Knouse and Sabatini began a sexual relationship that ended in 2019; thereafter, Sabatini continued to make sexualized comments to her. Knouse asserts that she struggled under this dynamic. Sabatini, whose laboratory was next to Knouse's, was the director of the Whitehead fellows program, and he served as a mentor and reviewer of her work. Knouse feared the potential consequences that losing an influential mentor would have on her career and believed she could not terminate the relationship without professional repercussions. She "began to withdraw from the scientific community" and "experience[d] debilitating feelings of entrapment and hopelessness."

Around this period, the results of a 2020 culture survey of Whitehead "suggested that Sabatini either personally engaged in sexually explicit and inappropriate discussions or fostered an environment that tolerated—or promoted—such inappropriate discussions and that he threatened those who might report his conduct." The survey results "amplified complaints" raised by two women, who had trained in Sabatini's laboratory, and by Knouse, who contemporaneously disclosed to the director that she had felt harassed during her fellowship but, fearing retaliation, did not provide any further details.

In response, Whitehead hired an independent legal team to investigate. The investigators determined, inter alia, that Sabatini had "engaged in and otherwise tolerated sexist and sexualized work discussions with his lab," and that engaging in such discussions "was an implicit part of succeeding in" Sabatini's laboratory. They also concluded that there was a "culture of fear and retaliation" within the laboratory. They reported that Sabatini had "engag[ed] in sexual relations with a Whitehead Fellow" and violated several Whitehead policies, including its sexual harassment policy.

Sabatini resigned from his Whitehead position. MIT announced that it was placing Sabatini on leave to perform its own investigation.

Sabatini's claims against Whitehead had earlier been dismissed (see, e.g., this decision).

Lisa Arrowood, Shayne Kinsella, and Sarah Sousa (Arrowood LLP) represent Sabatini.

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Georgetown law Professor Steve Vladeck is one of the leading critics of the conservative majority on the Supreme Court. But in an insightful recent post on his substack, he outlines key reasons why "court expansion" is a bad response to its flaws. The cure is likely to be worse than the disease:

[I]t seems to me that those who are fully onboard the expansion-or-bust train should have to do more than simply assert that having four new Democratic appointees on the Court in 2029 would be a self-evidently "good" thing. If nothing else, proponents of expansion should have to answer the following four questions:

1. How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?
2. If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?
3. If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?
4. What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?

He adds that court-packing could easily "permanently undermine judicial review as an institution." The rest of his piece (which is behind a paywall) offers far from reassuring answers to these questions.

I have offered similar criticisms of court-packing in a long series of articles and blog posts, most recently in a June Lawfare article  where I explained (among other things) why the Supreme Court's recent decision in Louisiana v. Callais doesn't justify packing, and in a July UnPopulist article critiquing a court-packing proposal advanced by Andy Craig. In these pieces, I explain why the Court's record of checking dangerous abuses of government power - though not without serious flaws - is considerably better than many critics claim. In addition, I argue that court-packing is likely to undermine effective judicial review - not only by the Supreme Court, but also by lower courts.

Like Vladeck, I think some of the issues that concern critics of the Court can be more effectively addressed in other ways. For example, in the Lawfare article, I explain how Congress can fix the flaws of the Callais decision by banning or restricting gerrymandering. It could also enact a binding ethics code for the justices. Justice Alito was wrong to suggest otherwise, back in 2023. That said, if your main goal is a sweeping reversal of much of the Court's recent jurisprudence, there may be no easy way to achieve that quickly without court-packing or something like it. I would argue that any benefits that might achieve are outweighed by the enormous costs of destroying judicial review.

In addition, if your objection to the Court's recent decisions is that they often don't do enough to constrain unconstitutional actions by other branches of government or by the states, court-packing is likely to make that problem worse, not better. Destroying judicial review won't enforce tighter constitutional constraints on the executive or bring back Roe v. Wade. To the contrary, it would largely destroy any hope of doing so.

In another recent piece, I assessed "non-packing" rationales for increasing the size of the Supreme Court. There, I argue that these rationales are mostly weak; and, to the extent they have merit, there are better ways to address them than an expansion that amounts to court-packing. I even outline possible ways to increase the size of the Court without creating an opportunity for court-packing (this would require allowing the party that doesn't hold the White House to pick some of the new justices).

The post Steve Vladeck's "Hard Questions About Court Expansion" appeared first on Reason Magazine.

Yesterday, in United States v. City of New York, yet another federal court ruled against the Trump administration in a sanctuary city case. "Sanctuary" jurisdictions are state and local governments that restrict their law enforcement agencies and other employees from assisting federal immigration enforcement and deportation efforts in various ways. In this case,  Judge Reyes of the US District Court for the Eastern District of New York upheld New York City laws restricting local law enforcement information-sharing and other assistance to federal immigration enforcers.

The court ruled that federal law does not preempt these policies, and that if if it did, there would be a violation of the anti-commandeering requirements of the Tenth Amendment:

Even were the Court to find that the United States has standing and the challenged provisions are preempted—both answered in the negative above—United States' claims would still fail because the anticommandeering doctrine of the Tenth Amendment to the Constitution of the United States precludes relief.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X….

The United States argues it is "not seeking to compel participation in immigration enforcement … but rather to remove Defendants' express and implicit obstacles to the Executive's duty to carry out its immigration enforcement duties…." New York City replies "if accepted, [the United States' claims] would require the City to affirmatively assist the federal government in enforcing immigration laws in violation of the Tenth Amendment's anticommandeering doctrine…." New York City is correct, at least partially.

The United States seeks injunctive and declaratory relief to preempt the challenged provisions… If the challenged provisions were struck, while New York City would not be obligated to carry out federal immigration enforcement, they would be barred from prohibiting their agencies and employees from engaging in federal immigration enforcement by expending personnel, property, and other resources to (1) detain individuals and (2) implement inter-agency information-sharing, including disclosing personally identifiable information, all potentially in violation of state law. And of course, there is nothing within federal law that obligates states to participate in federal immigration enforcement or compels states to comply therewith.

The United States' preemption arguments amount to nothing more than a backdoor around the Tenth Amendment and rest on a false distinction between (a) compelling local governments' participation in federal immigration enforcement and (b) prohibiting local governments from dictating how their personnel and other resources may be utilized towards federal immigration enforcement….. "

The basic principle—that Congress cannot issue direct orders to state legislatures—applies" to commands for "affirmative action" and the imposition of "prohibitions." Murphy [v. NCAA], 584 U.S. at 455 (citation modified). If states cannot remain free to control their agencies and employees to resist federal immigration enforcement, which is within states' constitutional prerogatives, the Tenth Amendment anticommandeering doctrine means nothing.

This reasoning is correct. And it is notable that this ruling - like many others protecting sanctuary cities - relies heavily on the Supreme Court's 2018 anti-commandeering decision in Murphy v. NCAA, written by Justice Samuel Alito (probably the Court's most conservative justice), and joined by all the other conservatives then on the Court. In that case, the Court emphasized that the anti-commandeering doctrine bars Congress from dictating the actions of state and local legislatures, regardless of whether the dictation takes the form of an affirmative mandate, or a prohibition against legalizing or barring something under state law.

Judge Reyes also rejects the administration's argument under the "intergovernmental immunity" doctrine, which bars states and localities from directly regulating federal agencies or "discriminating" against them. Like the court in the recent case of United States v. New Jersey, he correctly emphasizes that there can be no discrimination when there is no other comparable activity that gets more favorable treatment under the sanctuary jurisdiction's policies:

"Differential treatment is critical to a discrimination-based intergovernmental immunity claim." New York, 814 F. Supp. 3d at 282….; "[A] comparator is necessary." New York, 810 F. Supp. 3d at 353. The United States discrimination claim fails for lack of a comparator.

The United States does not and cannot identify a similarly situated entity. State and local agencies and their officers do not enforce immigration law, nor do members of the public…  As the United States concedes, the Federal Government holds the "exclusive charge of enforcing immigration law…."  Not only are other federal law enforcement agencies with different charges differently situated, "[f]or a state law to unconstitutionally discriminate against the federal government, it must treat comparable classes of federal and non-federal employees differently, not different classes of federal employees." Illinois, 796 F. Supp. 3d at 534

I would add that, as I explained in a recent post, the entire antidiscrimination element of the intergovernmental immunity doctrine is dubious, and should probably be overturned by the Supreme Court:

[T]he whole doctrine of intergovernmental immunity strikes me as bogus, judge-made law. There is no provision in the Constitution requiring it. And the federal government is not some historically oppressed minority group protected by the antidiscrimination provisions Fourteenth Amendment. Where state and local governments are otherwise free to refuse to help the feds, that autonomy should not be forfeited merely because they choose to support potentially similar activities by state or local governments, or by the private sector. Obviously, a district court cannot refuse to obey Supreme Court precedent in this field. But I hope the Supreme Court might someday reevaluate that precedent.

This is just the most recent of a long line of defeats for Trump in sanctuary city cases, in both his first and second administration. Judge Reyes cites close to a dozen such cases over the last year alone.  I summarized this jurisprudence more fully in a post covering three other recent sanctuary cases, last month:

In cases where the administration has tried to directly coerce states and localities into cooperating, courts have rightly ruled this violates the Supreme Court's "anti-commandeering" precedents, a series of decisions reached primarily by conservative justices, which hold that the federal government may not force state and local governments to help enforce federal law or carry out under federal purposes. In cases where Trump has sought to withhold federal funds from sanctuary jurisdictions, courts have (also rightly) ruled that the executive cannot impose conditions on federal grants that were not authorized by Congress and (in some cases) that the Trump conditions are unconstitutionally coercive. For my analyses of Trump II court decisions on these issues, see here, here, and here.

My 2019 Texas Law Review article surveying and assessing litigation arising from Trump's first-term attacks on sanctuary jurisdictions. There and in other writings, I also explain why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and help protect our constitutional system. See also my February 2026 Dispatch article, "In Defense of Sanctuary Cities," which provides an overview of these issues, and defends sanctuary jurisdictions on both constitutional and policy grounds.

Yesterday's ruling may be appealed. But if so, it is unlikely to be overturned.

Trump has posted a few rare wins in sanctuary cases with unusual facts, such as in the Contracts Clause case I analyzed in the September post. But, such cases are highly exceptional. And, as explained in the September post, the Contracts Clause decision has various flaws, and would not greatly impede sanctuary jurisdictions even if it survives on appeal.

Overall, Trump has been losing these kinds of cases so much that he might even get tired of losing.

The post Trump Loses Yet Another Sanctuary City Case—This Time Against New York City appeared first on Reason Magazine.

The post "If You Throw a Skunk into the Jury Box, You Can't Instruct the Jury Not to Smell It" appeared first on Reason Magazine.

Nunes brought a single claim for defamation under New York law based on (as relevant here) a statement made by Rachel Maddow, host of The Rachel Maddow Show ("TRMS") on MSNBC (owned by NBCUniversal), for which Cory Gnazzo served as the executive producer.

In December 2019, Nunes, who was then a congressman and ranking member of the House Permanent Select Committee on Intelligence ("HPSCI"), received something known as the "Derkach Package," from Andrii Derkach—a Russian agent linked to Russian efforts to influence the U.S. presidential election in 2020. The Derkach package was the subject of public discussion over a long period of time, including in a declassified Intelligence Committee Assessment that was released on March 16, 2021.

Two days after that release, on March 18, 2021, Maddow reported on the Derkach package incident, saying on TRMS that Nunes "refused to hand it over to the FBI, which is what you should do if you get something from somebody that is sanctioned by the U.S. government as a Russian agent." Nunes provided the court with evidence that Maddow's statement (the "Statement") was false. More specifically, a former staff member from the HPSCI testified in a deposition that the package, addressed to Nunes, was received by committee staff, placed in a secure location, and turned over to the FBI about two days after its arrival.

The court held that Nunes hadn't introduced enough evidence that Maddow spoke with "actual malice," which means knowing the statement was false or likely false:

[T]he undisputed evidence showed that Maddow and Gnazzo relied on the earlier-published Politico article and that such reliance cannot support a finding of actual malice. The Politico article stated that the Derkach packets had been sent to four people: Nunes, Senators Graham and Grassley, and then-White House Chief of Staff Mulvaney. According to the article, "Graham and Grassley denied having received the material, and Mulvaney and Nunes declined repeated requests for comment. One person familiar with the matter said the information was not turned over to the FBI."

Nunes argues that the Politico reporting does not support Maddow's statement that Nunes "has refused to hand [the Derkach Package] over to the FBI." But that is a natural reading of the Politico article. The dictionary definition of "refuse" cited by Nunes includes this meaning: "to show or express an unwillingness to do or comply with." According to Nunes, this definition shows that a person can "refuse" to do something only if he is "unwilling[ ] to … comply with" a request that he do so, and there was nothing in the Politico article to indicate that he had received any such request. But that is only one possible scenario covered by those words.

Nunes overlooks the other part of the definition that he himself quotes: that a person can be said to have "refused" to do something if he has "show[n] an unwillingness to do" it. Here, the Politico article clearly indicates that Graham, Grassley, Mulvaney and Nunes were all sent the material in question, and none of them gave it to the FBI. A fair paraphrase of this reporting, that Nunes got the Derkach Package but did not turn it over to the FBI, is that he was not willing (i.e., he refused) to give it to the FBI. Of course, the Statement did not parrot the Politico article word for word. But "[l]iteral accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made."

Maddow and Gnazzo's undisputed reliance upon the Politico article defeats Nunes' defamation claim. In New York Times v. Sullivan (1964), the Supreme Court held that a defendant's reliance on a responsible source negates a finding of "the recklessness that is required for a finding of actual malice." "Similarly, this Court has held that where reporters' false statements in an article were based on reliable sources, the defendant could hardly be accused of gross negligence, much less actual malice."

Nunes provided no evidence at the summary judgment stage that provided any basis for a reasonable inference that Maddow or Gnazzo should have regarded the Politico article as unreliable. We therefore agree with the district court's holding that Nunes failed to present evidence that NBCUniversal or its employees acted with actual malice sufficient to defeat summary judgment….

Elizabeth A. McNamara and Jeremy Chase (Davis Wright Tremaine LLP) represent defendant.

The post Devin Nunes Loses Libel Suit Based on Rachel Maddow Show Statements appeared first on Reason Magazine.

Mother argues the trial court erred by entering paragraph 111 of the final custody order, which allows Child to decline attendance at religious or faith-based events beginning at the age of 14, and prohibits both parents from influencing, restricting, or limiting Child's participation in those events before or after age 14. In doing so, Mother claims this provision "infringe[s] upon the parties' First Amendment right to the free exercise of religion and the parties' fundamental right to parent their child." …

Under the Due Process Clause of the Fourteenth Amendment, a parent has a fundamental right "to make decisions concerning the care, custody, and control of the child." Under the Free Exercise Clause of the First Amendment, an individual has a right to religious freedom. Read together, parents have the constitutionally-protected "right to direct the religious upbringing of their children." [Under Pennsylvania precedent,]

[A] court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime. However, … it may do so only where it is established that advocating the prohibited conduct would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens….

[E]ach parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in absence of the proposed restriction….

While the harm involved may be present or future harm, the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to 'contradictory' religions would be a patently insufficient 'emotional harm' to justify encroachment by the government upon constitutional parental and religious rights of parents, even in the context of divorce….

As noted by Mother, "[n]either party in this matter requested the trial court order any form of relief regarding the exercise of their religious beliefs or … [C]hild's attendance and participation in religious activities. No evidence regarding either party's religion or … [C]hild's attendance and participation in religious activities was presented at trial." The trial court explained its reasoning for this provision, stating:

This trial court was forced to anticipate, to the best of its ability and in light of the factors proscribing stability and consistency for … Child, that a high level of conflict is more than likely to arise as it pertains to religious activities. To put it simply, these parents have demonstrated that any disagreement or dispute has and can easily escalate quickly into full scale conflict that does nothing more than cause instability and emotional trauma to … Child.

As such, this trial court proactively prescribed a solution to any issues that may arise regarding … Child's attendance and participation in religious activities. This trial court acknowledges that neither parent raised the issue of religious activities[;] however, the tumultuous history of this case does not produce any optimism on the part of this trial court that they will be able to communicate and cooperate if religious participation becomes an issue. As such, it is in … Child's best interests to preemptively place parameters on his attendance and participation in religious activities….

Though we recognize the parties' behaviors do not produce optimism that religion will not become an issue in the future, based on the record before us, the restrictions set forth in paragraph 111 are contrary to our case law since there is no indication the parties' religious beliefs or practices present a "grave threat of harm," "a substantial threat of present or future, physical or emotional harm to the child[,]" or that the physical or mental health, or safety of the child would be jeopardized absent a restriction. Accordingly, the trial court erred in setting forth paragraph 111 of its January 6, 2026 order. Consistent with precedent, both parents shall be permitted to practice his or her religion with Child during their respective periods of custody, so long as there is no substantial threat of present or future physical or emotional harm to Child….

The post Anticipated Religious Clashes Can't Justify Current Restriction on Parents' Religious Upbringing of Child appeared first on Reason Magazine.

From today's decision by Judge Richard Mark Gergel (D.S.C.) in Bingham v. Wilson:

Plaintiffs filed this lawsuit on behalf of several South Carolina physicians seeking injunctive and declaratory relief against South Carolina's Abortion Ban….  [Plaintiffs] seek an order: "(1) requiring all counsel and witnesses to refer to Dr. Doe using her pseudonym at trial; (2) closing the courtroom to the public and members of the press during Dr. Doe's testimony; and (3) permitting limited redactions to the trial transcript to conceal any educational or professional information that could indirectly identify Dr. Doe." Defendants have not filed any memoranda opposing the instant Motion….

The court refused to close the trial during Dr. Doe's testimony:

The Supreme Court has noted that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open[,] … [and] historically both civil and criminal trials have been presumptively open." … "For many centuries, both civil and criminal trials have traditionally been open to the public" ….

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Applying these principles, the Supreme Court held that the right to a public trial may give way to a complete closure of the courtroom if: (1) the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced, (2) the closure is no broader than necessary to protect that interest, (3) reasonable alternatives to closing the proceeding are considered by the trial court, and (4) findings adequate to support the closure are made by the trial court…. When a party seeks only a partial closure of the courtroom, such as "where an exclusion is temporally limited to a portion of the hearing," a "less demanding" test applies, which permits a court to order closure if the moving party establishes "a substantial  reason"  rather  than  an  "overriding  interest"  justifying  closure….

[T]he Court will not close the Courtroom proceedings during Dr. Doe's testimony. Here there are not sufficient circumstances to warrant closing the courtroom given the public's right to access and interest in the proceedings, especially given the nature of this case. As discussed above, civil trials are presumptively open and are a hallmark of our democratic forum of government as open trials "embod[y] a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." …

The Court takes Dr. Doe's concerns about her safety very seriously. But the Court finds that the public's right of access to access is high in this case given its subject matter. As such, the record before the Court does not warrant closing the proceedings to the public when alternative measures can ensure her safety. The Court therefore will not close the Courtroom during Dr. Doe's testimony….

But it allowed her to proceed as Dr. Doe at trial:

[A]bortion is a divisive issue and there is a long "national history of harassment and violence towards abortion care providers." Women's Health Ctr. of W. Virginia v. Sheth (S.D. W. Va. 2023) (granting an abortion provider's motion to proceed pseudonymously because "retaliation is a genuine concern" for abortion providers and there is a serious risk of "harassment, threats, or other retaliatory action taken by those that disagree with access to abortion care"); see Roe v. Aware Woman Ctr. for Choice, Inc. (11th Cir. 2001) (holding that plaintiffs in abortion cases may be allowed to proceed anonymously and collecting cases). Moreover, the Court finds Dr. Doe's expressed concern of retaliation against herself compelling because she has been the target of threatening mail and doxing by anti-abortion activists…. [This] risk of physical … harm to plaintiff … weighs in favor of allowing her to proceed anonymously….

[Plaintiff's claim is also made stronger] given her previously stated desire to protect her children from harassment and retaliation by remaining anonymous.

The [claim being against the government] weighs in Plaintiff's favor because "[a]ctions against the government do no harm to its reputation, whereas suits filed against private parties may damage their good names and result in economic harm." … [And] the threat of prejudice to Defendants to be minimal since Dr. Doe has proceeded anonymously up to this point and because there is no risk of jury confusion since this is a bench trial. See James v. Jacobson (4th Cir. 1993) (recognizing the "concern that the jury's very knowledge that pseudonyms were being used" could "tend to validate" the plaintiff's claims); Doe v. Ayers (9th Cir. 2015) (noting "risk that the … use of pseudonyms might prejudice the jury" in the anonymous party's favor). Based on the circumstances of this case, the Court finds that Dr. Doe's stated interests in protecting herself against retaliation and harassment can be balanced with the public's interest in the openness of judicial proceedings by allowing Dr. Doe to proceed under a pseudonym at trial.

And the court also concluded that it "will partially redact the portions of the transcript that could indirectly identify Dr. Doe":

Additionally, the Court finds that redaction of selected portions of the trial transcript is an appropriate alternative to sealing the transcript in its entirety. This decision strikes an appropriate balance between the public's right of access to judicial records and proceedings and Dr. Doe's interest in her safety. This is especially true because the public's right to access Dr. Doe's education and professional information is limited, especially given the Court's decision to allow her to proceed anonymously due to her safety concerns. Furthermore, the public will retain access to trial records except for Dr. Doe's identity and the related information that could identify her. The Court also believes that this is a reasonable alternative to closing proceedings and no greater than necessary. Thus, the Court finds that the same safety measures as closing the Courtroom can be achieved with reasonable alternative measure of allowing Dr. Doe to proceed anonymously and redacting the portions of transcript….

As such, it is ORDERED that Counsel and witnesses will refer to Dr. Doe using her pseudonym at trial and that the trial transcript will be partially redacted to conceal any educational or professional information that could indirectly identify Dr. Doe. However, the Court will not close the Courtroom during Dr. Doe's testimony….

This leaves open the possibility that a spectator who knows what Dr. Doe looks like will see her in court and publicly identify her—nothing in the order forbids that—or that identifying information that is orally presented at trial will be publicized by a spectator even if it's redacted from the trial transcript. But presumably the judge concluded that this risk is relatively modest, and is justified by the need to preserve public access to the trial.

The post No Closed Courtroom When Plaintiff Dr. Jane Doe Testifies in S.C. Abortion Ban Challenge appeared first on Reason Magazine.

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

New case! Last year, Texas passed a law prohibiting municipalities from prohibiting home businesses, so long as they don't cause parking or traffic issues. And yet! The City of Venus says IJ client Rosi Paredes cannot open a daycare (with a max of 6 kids) lest vehicles parked out front for a few minutes during pick up and drop off discommode the community. Rosi even offered to stagger arrival and departure times and have parents park in the driveway. That's bananas! Rosi is state-licensed and inspected; she has lots of experience; and her neighbors are eager to enroll their kids with someone they trust close to their homes. Click here to learn more.

New on the Short Circuit podcast: Interested in how to hide several kilos of contraband in a minivan but don't have time to watch The French Connection? Our episode is shorter.

1. California conservation group publishes a report recommending against consuming American lobster because, it says, fishing practices endanger right whales. Unsurprisingly, Maine lobster fishers disagree. Many would consider that just a difference of opinion; but for litigious lobstermen, it's supposedly defamation. First Circuit: The "group defamation rule" bars this suit because general statements about a large group generally aren't defamatory against the individual members.
2. You may wonder what could have turned out differently for Sebastian Flyte, of Brideshead Revisited, if London bobbies hadn't caught him drunk driving. The same may be true of a Pennsylvania man who was convicted of two DUIs over 20 years ago and now can't own a firearm. Third Circuit (en banc): Wonder no more as disarming him is unconstitutional. Concurrence: For this guy, sure, but in the future the gov't has set up an administrative process that'll let us get out of ruling on these. Dissent: Cars, like guns, are dangerous.
3. An old DUI may be one thing, but if you're convicted of "terroristic threats" you ain't ever getting your gun rights back, says the Third Circuit (en banc). And that's true even though some states used to bar tramps from owning guns because they were "outside the social and political order." Concurrence 1: Felons are all the same. Concurrence 2: Maybe we shouldn't be relying on old laws that excluded minorities from firearms ownership? Dissent: I get this crime sounds bad, but the dude did the time and now just wants his rights back.
4. Fairfax County and Arlington, Va. school districts adopt bathroom and overnight-stay policies allowing students to use the facilities "consistent with the student's gender identity." Feds: That's a Title IX violation. Schools: Actually, not having those policies would be a Title IX violation. Feds: Whatever, we're cutting your funding. The schools sue. District court: Too bad I'm not the Court of Claims. Fourth Circuit: For an injunction district court is fine. Remanded. Dissent: "Plaintiffs cannot bypass Congress' choice and sneak into district court by dressing up a contract claim in statutory clothes."
5. Since 1998, USAC, a private corporation established by the FCC, has administered the collecting of billions of dollars from telecom companies for use ensuring universal service in rural and underserved areas. Fifth Circuit: But Congress didn't specifically authorize USAC, nor did Congress having USAC run some temporary programs during the pandemic belatedly ratify it. So the FCC is going to have to have another look at its Fourth Quarter 2025 contribution factor.
6. Home renter in Jackson, Mich. objects to code inspectors entering her home for a suspicionless inspection based on an administrative warrant. She's arrested for obstruction, charges are dropped, then she sues the arresting officials for violating the Fourth Amendment by arresting her without probable cause. Sixth Circuit (unpublished): May I introduce you to the "clearly established" prong of qualified immunity?
7. Milwaukee officer runs red light, kills motorist. He didn't see the light change because he was either looking at his phone—he'd been sexting on a dating app—or at his computer. District court: Might be a substantive due process violation. Seventh Circuit: Cancel the trial. This doesn't shock the conscience. (Negligence claims were reportedly settled for the max under state law, $500k.)
8. In 2019, mom wins at custody hearing, but both kids want to go home with dad. A Taney County, Mo. judge—now unrobed—overhears their argument in the courthouse lobby and threatens to put the kids in foster care. When they still won't leave with mom, the judge has them locked in holding cells. (They leave with mom.) Eighth Circuit (2023): No judicial immunity. Eighth Circuit (2026): And no qualified immunity. That was so obviously unconstitutional that a prior case on point isn't necessary. The jury verdict stands. (IJ filed an amicus brief at each stage, urging these results.)
9. California's No Vigilantes Act requires non-uniformed federal law-enforcement officers in California to display visible identification. Feds: Intergovernmental immunity! Ninth Circuit: Intergovernmental immunity. A preliminary injunction must issue.
10. Man is convicted of federal murder for his role in the shooting and drowning death of a man off a fishing boat nearly three miles off the coast of California. The Ninth Circuit first takes us on a fascinating jaunt through 200 years of the federal gov't's jurisdiction over crimes at sea, determining that the feds can prosecute murders at sea. Nevertheless, the court vacates the conviction on account of the district court's dismissal of a holdout juror experiencing a mental health crisis. Given that her crisis was based on pressure from other jurors to reach a verdict, a mistrial was the only path forward. (His co-defendant fared poorly in her appeal.)
11. The feds generally have jurisdiction to prosecute crimes committed in Indian country, but not when both the victim and defendant are Indians. Tenth Circuit (en banc): Overturning precedent, we now hold it's the defendant's burden to prove their Indian status. So these two guys, whose convictions for crimes against Indian kids were vacated because the feds didn't prove their non-Indian status, are now going to have to prove their ancestry, tribal affiliations, etc.
12. This Tenth Circuit (unpublished) opinion is notable less for denying collateral relief to a federal inmate on an ineffective-assistance-of-counsel claim, and more for helpfully (and in your summarists' experience, unusually) including Westlaw links for the cited authorities.
13. Tenth Circuit: It's clearly established that officers mustn't shoot nonthreatening people who are armed with something other than a gun. And the distinctions this Oklahoma officer makes between prior cases and his fatal shooting of a man holding a bat are too minor to trigger qualified immunity. To trial this must go.
14. To vote by mail in Kansas, a voter must first send a written application to their county election office requesting a mail ballot. In 2021, the state enacted a law prohibiting private parties from partially prefilling those applications before sending them to voters. District court: The law was enacted with an improper purpose, which can be inferred from contemporaneous widespread public vitriol about mail-in voting. Tenth Circuit: The law's justifications, text, and enactment history reveal no such purpose, so the inference was unreasonable. The law survives intermediate scrutiny.
15. After a pair of wrong-door raids by federal law enforcement in Collinsville, Ill. in 1973, Congress amended the Federal Tort Claims Act to ensure victims of such raids would have a cause of action against not only the individual agents but also the federal gov't. Eleventh Circuit (2024): This Atlanta family, whose home was mistakenly raided by an FBI SWAT team in 2017, does not have a cause of action. Supreme Court (2025): Try again. Eleventh Circuit (2026): Actually, the SWAT team leader does not get qualified immunity, and we should take this case en banc to reconsider our FTCA precedent. (This is an IJ case.)
16. Florida imposes age restrictions on social-media platforms that use "addictive features." Platforms sue, alleging a First Amendment violation, and get a preliminary injunction. Eleventh Circuit: Reversed! The law is subject—and likely to survive—intermediate scrutiny. (Ed.: Judge Newsom has a very interesting self-concurrence about the continued viability of as-applied challenges under intermediate scrutiny in the wake of a curious footnote in the Supreme Court's ruling in West Virginia v. B.P.J.)
17. Déjà vu! Georgia imposes age restrictions on social-media platforms. Platforms sue, alleging a First Amendment violation, and get a preliminary injunction. Eleventh Circuit: Reversed! Plaintiffs put all their eggs in the "facial challenge" basket at the PI stage, and they just didn't build the necessary record.
18. Admission to the Florida bar costs $700 if you apply soon after law school. But if you've been a member of another state's bar for more than a year, the cost jumps to $1.6k and can go as high as $3k depending on the applicant's years of admission. Members of the bars of New Jersey and Michigan sue, alleging that the law violates the Dormant Commerce Clause. Eleventh Circuit: Nope. The law treats applicants alike, and "[t]here's just more to investigate for experienced applicants than there is for new ones."
19. And in en banc news, the Fifth Circuit (10-7) will not reconsider its decision that Texas's no-snapping-pics-in-bathrooms statute likely doesn't violate the First Amendment rights of a woman who photographed a transgender politician hand-washing in the women's restroom of the Texas State Capitol.

Bananas! The City of Grapevine, Tex. has ordered a learning pod run by a teacher with nearly 30 years' experience to vacate its rented space in the offices of a local museum until 10 pages of outrageous and costly demands (like rezoning and renovating) are met. This month, IJ sent the city a letter urging them to knock it off.

Nuts! The Town of Ogunquit, Me., a touristy spot with no shortage of whimsical yard art, has fined a family nearly $2k for having tin roosters in their yard because, it is said, the roosters are unpermitted advertising for the family's small business, a breakfast restaurant that's attached to their home. In fact, the roosters are lawn art that have become symbols of autism awareness; their six-year-old autistic daughter has found comfort in them during transitions to and from the school bus. This month, IJ sent the town a letter urging them to knock it off.

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

The article is here; from the Introduction:

According to the Supreme Court of the United States, I am the lead singer of The Slants. I am not. I have never been. I am the bassist—the founder, the bassist, and the person who spent the better part of a decade fighting the federal government over the right to use our band's name. Anyone who has ever listened to our music, attended one of our shows, or spent a few moments searching our name would know this. But the Supreme Court's opinion in Matal v. Tam says otherwise, and because it does, so do the law review articles, the IP textbooks, and the classroom discussions that have built up around the case in the years since it was decided.

I raise this not to embarrass anyone. I raise it because it is a precise and verifiable illustration of something that practitioners and scholars who study Matal v. Tam should understand: The legal record of a landmark case is not the same thing as what actually happened. The opinion is not the case. The briefs are not the strategy. And the story that has calcified in the legal literature—about what this case was, how it developed, and why the decisions made along the way were made—contains gaps and errors that only a firsthand account can correct.

This article is that account.

Almost a decade has passed since the Supreme Court unanimously struck down the disparagement provision of Section 2(a) of the Lanham Act. In that time, Matal v. Tam has been cited in hundreds of law review articles, briefed in subsequent First Amendment cases, and assigned in IP and constitutional law courses across the country. Scholars have analyzed the decision's doctrinal implications, its impact on subsequent cases like Iancu v. Brunetti, and its effect on the registration of marks by marginalized communities. What they have not done—because they could not—is tell the story of how the case was actually made.

That story is more complicated, and more instructive, than the legal literature suggests. Matal v. Tam is taught as a First Amendment case. It was not designed as one. It became one through a sequence of institutional interventions—each of which narrowed the legal question, foreclosed certain arguments, and ultimately transformed a trademark dispute about cultural identity into a constitutional referendum on government speech regulation. Understanding that transformation is not merely historically interesting. It changes how practitioners should approach impact litigation involving marginalized communities, how law professors should teach the case, and how future litigants should think about what they are actually fighting for when they bring a case that institutions decide to use for their own purposes.

The errors in the legal record are the place to start, because they are evidence that something is missing.

The post Journal of Free Speech Law: "How <i>Matal v. Tam</i> Became a First Amendment Case: The Record and the Reality" by Simon Tam appeared first on Reason Magazine.

The article thus doesn't show up in the search results, though other items that point to it do show up. I get similar results when I search, without a site:thetimes.com limitation, for "web entrepreneur faces inquiry over online sale of painkillers" (another article about Soiza). And I get similar results when I search for site:thetimes.com "mason soiza":

The DMCA complaint specifically targeted, among other items, these Times pieces:

https://www.thetimes.com/uk/healthcare/article/web-tycoon-mason-soiza-24-faces-inquiry-over-online-sale-of-painkillers-3jhjzd5kz

https://www.thetimes.com/business/companies-markets/article/mason-soiza-spammer-with-a-gold-lamborghini-58gxblv9c

The claim in the DMCA complaint was that the Times articles infringed the copyright in an OnlyFans page, https://onlyfans.com/angiestonex. That claim appears not to be accurate, yet Google did indeed deindex articles in a major newspaper based on the claim. (The newspaper would presumably be able to file a DMCA counternotification and get the matter reconsidered, but they may have been unaware of the situation.)

Interestingly, the DMCA complaint also targeted one of my posts, ttps://reason.com/volokh/2018/11/10/forged-uk-court-order-aimed-at-vanishing/ ("Forged U.K. Court Order Aimed at Vanishing Newspaper Article About English Businessman Mason Soiza"), but that post has not been removed from Google search results.

The post Google Blocked <i>Times (London)</i> Articles About Businessman Mason Soiza, Apparently Based on Unjustified DMCA Demands appeared first on Reason Magazine.

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Dr. Angus McClellan has just posted 151 pages of "Additional Research on Comprehensive Security and Sensitive Places" showing that at the Founding armed security was tied to each of Bruen's three sensitive places where arms could be restricted.  Historical tradition from the American colonies and early states demonstrates that the predicate for banning weapons by the public at courts, legislative assemblies, and polling places was the government's provision of real protection in fact.  That research supplements Dr. McClellan's compendium "The Second Amendment, Sensitive Places, and Comprehensive Government Security" which I summarized here.

In Wolford, the Supreme Court found Hawaii's law banning firearms on private property open to the public without affirmative consent of the owner – aka, the "Vampire Rule" – to violate the Second Amendment.  The Court took notice of, but did not resolve, the issue that, "On a large portion of the land within the State's boundaries, possession of a firearm is now flatly prohibited."  That issue has been pending in the several states that sought to nullify Bruen's holding that firearm carry permits may not be restricted to a privileged few or denied for purported lack of "need."  One of those states is New Jersey, and early this year the Third Circuit en banc held oral argument about that ban in Koons v. Attorney General.  See my post here.

The premise of these bans is that any place is "sensitive" if the legislature so declares.  While it is often argued that being crowded suffices, that is belied by the fact that the bans include vast acreage of wooded parklands inhabited primarily by deer and squirrels.  But Bruen explicitly rejected an arms prohibition based on being crowded, explicitly mentioning Manhattan as an example.  Bruen did not go into the factual historical tradition justifying gun bans in the three locations it mentioned, as the issue was not before the Court.  And that's where the research by Dr. McClellan fills the gap.

As prefaced in his "Additional Research," McClellan states: "The primary purpose of this additional research is to determine whether all 13 original colonies or early states had armed, government security personnel assigned to doorways at the sensitive places of courthouses/courtrooms, legislative buildings/chambers, and polling places."  A secondary purpose, he continues, is to confirm that courthouses, legislatures, and polling places were indeed "sensitive," i.e., governments could or did ban weapons there.  As for the method of research: "There are four sought-after elements in the historical material for determining whether a place had comprehensive security: a government agent was assigned to the place; his duties included maintaining security; he guarded a doorway; he carried a weapon."  Finally, a "sensitive place" was "one where arms were prohibited." The research compiles sources showing where bans were enacted with evidence that such places were secured.

McClellan's research is truly overwhelming and is supported by hundreds of footnotes.  Weapons were not necessarily always banned in the subject places, but they could be; the ultimate point is that these places were secured by government agents.  I will mention only one entry illustrative of each of the identified sensitive places.

Courthouses. At the trial of Aaron Burr, General James Wilkinson was disarmed in the court by the U.S. marshal to prevent him from intimidating the jury, indicating at least that (1) weapons were or could be banned in court, (2) government officers were present in court to disarm people. Wilkinson was a senior U.S. Army officer who had conspired with Burr to raise an army to seize Spanish territory. He turned against Burr and served then as the prosecutor's chief witness. At the grand jury proceeding, the jury foreman was John Randolph of Roanoke, who upon seeing Wilkinson with a sword, alerted the marshal (1807).

Legislative assemblies.  The Philadelphia Convention was off-limits to civilians entirely. Armed sentinels guarded the doorway to the hall, both inside and out. Note also that "it was standard procedure for legislative bodies to meet in secret" (1787).

Polling places.  Delaware: Sheriffs shall be judges of elections, and he and other officers shall be required to preserve good order and keep the peace. Inspectors shall, when taking the [voice] votes or tickets, call out loud the name of the elector, and shall then place the tickets into a ballot box (1772).

The pattern was consistent: where the government required citizens to disarm, it supplied the protection itself.  At other times, the government required citizens to arm themselves, such as in colonial times when going to church.

"Sensitive places" was never meant to be a blank check. At the Third Circuit's en banc argument in Koons, Judge Paul Matey asked New Jersey counsel whether courts should "really be overreading Heller's colorful use of the phrase 'sensitive places' as actually creating a doctrine," likening it to "large capacity magazines or assault weapons" — "a regulatory term that could be applied to anything that a regulator wants to regulate and then used as a claim for historical justification."

The one principle that does come from history is government-provided security. As Judge Matey put it: "at least one example of what it means could be places where government provided comprehensive security, right. And so we would know that that courthouse, a military base, these are places where … going armed was severely restricted. I mean, isn't that a helpful way of thinking about this?" The State's reply was that "the history is just not there."  The record says otherwise.

Without a security limiting principle, there is neither security nor a principle. The Fourth Circuit in Kipke v. Moore upheld Maryland's gun bans on transit, parks, hospitals, museums, stadiums, and casinos on "crowded" and "vulnerable" theories — the very rationales Bruen rejected for Manhattan. Judge Agee, dissenting, called the sensitive-places exception "narrow" and warned that the majority had turned it into a license.

Comprehensive security makes sense. If the government takes no steps to prevent armed aggressors from entering a place, calling it a "sensitive" location is meaningless and reckless joke.  Exercise of the Second Amendment right then remains the constitutionally-mandated default.

The post Second Amendment Roundup: "Sensitive Places" Issue Coming to a Head? appeared first on Reason Magazine.

The State of Georgia recently enacted SB 351 to restrict minors' ability to create accounts on social-media platforms. The law requires platforms within its ambit to verify the ages of all their users, to prohibit minors under the age of 16 from creating accounts without their parents' consent, and to limit the personal data they use to display ads to users under 16.

The court held that Netchoice hadn't introduced enough evidence to show the law was facially unconstitutional:

Even in First Amendment cases, where the facial-challenge bar is lower than it otherwise might be, the plaintiff [in a facial challenge] must show that "a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Netchoice v. Moody …

To discharge its facial-challenge burden, NetChoice must provide the reviewing court with the data—either hard facts or, at the very least, sufficient briefing—necessary to conduct the Moody-required comparative analysis. It hasn't done so here. Indeed, NetChoice hasn't provided even a full list of its own members to which SB 351 applies. Instead, it has provided only an exemplary few: SB 351, NetChoice says, "regulates some websites operated by NetChoice members, including: (1) Dreamwidth; (2) Meta (Facebook and Instagram); (3) Nextdoor; (4) Pinterest; (5) Reddit; (6) Snap Inc. (Snapchat); (7) X; and (8) YouTube," as well as "new members … such as Tumblr." And though NetChoice contends that, in addition to its own members, SB 351 regulates "other covered 'social media' websites," it doesn't name any that (in whole or in part) host unprotected speech. In that respect, we think, NetChoice makes the same mistake that it made before in Moody: treating the law as having "certain heartland applications" and "mostly confin[ing its] battle to that terrain."

We've learned the facial-challenge lesson the hard way. In Moody, the Supreme Court, even while largely agreeing with our merits analysis, faulted us for "mostly confin[ing] [our] analysis" to "certain heartland applications" instead of "address[ing] the full range of activities the law[ ] cover[ed]." The Court went on to observe that even if it were to attempt the facial analysis itself, it couldn't "undertake the needed inquiries" because the "parties ha[d] not briefed the critical issues [t]here, and the record [wa]s underdeveloped." The Court therefore vacated and remanded our case … "to consider the scope of the laws' applications, and weigh the unconstitutional as against the constitutional ones." In turn, … we … remanded [the case] to the district court[] for further development of the issues pertinent to the facial-challenge analysis.

We are similarly stymied here. For the foregoing reasons, we conclude that NetChoice has failed to satisfy Moody because it hasn't adequately addressed the "full range" of SB 351's applications, and the record before us does not permit the weighing Moody requires.

The court also rejected Netchoice's vagueness challenge:

The district court held, and NetChoice contends before us, that SB 351's requirement that social-media platforms use "commercially reasonable" age-verification mechanisms renders the statute unconstitutionally vague.

The problem, as NetChoice candidly acknowledges, is that "the district court raised this issue sua sponte." … In granting injunctive relief on a theory that NetChoice never pleaded, the district court erred. See Clark v. Sweeney (2025) (holding that courts "transgress[ ] the party-presentation principle" when "granting relief on a claim that [the plaintiff] never asserted and that [the defendant] never had the chance to address").

And the court rejected Netchoice's 47 U.S.C. § 230 objection to the advertising restrictions:

Section 230 prohibits treating a social-media platform as "the publisher or speaker of any information provided by another information content provider." … [But] SB 351's advertising provision doesn't treat social-media platforms as publishers or speakers of information provided by others. Rather, it regulates how social-media platforms themselves act by forbidding them from targeting minors with ads based on personal information. This type of regulation falls outside § 230's ambit, which preempts laws that seek to hold social-media platforms "liable for information originating with a third-party user."

John Henry Thompson, Christopher Michael Carr, Riley B. Liu, Elijah J. O'Kelley, and Logan B. Winkles of the Georgia AG's office represent the state.

The post Eleventh Circuit Rejects Netchoice's Challenge to Georgia Law Restricting Under-16-Year-Old Social Media Access appeared first on Reason Magazine.

From U.S. v. California, decided yesterday by Ninth Circuit Judge Mark Bennett, joined by Judges Jacqueline Nguyen and Daniel Collins:

Section 10 [of the California "No Vigilantes Act"] requires any non-uniformed "federal law enforcement officer" operating in California, with narrow exceptions, to "visibly display identification" while performing federal law enforcement duties. Officers who violate the law may be criminally prosecuted by the State.

We previously granted the United States's motion for an injunction pending appeal. As before, we conclude that … § 10 of the No Vigilantes Act attempts [in violation of the Supremacy Clause] to directly regulate the United States in its performance of governmental functions, and Congress has not authorized such regulation. Indeed, we conclude that the United States is certain to succeed….

"[U]nder the intergovernmental immunity component of the Supremacy Clause to the United States Constitution, states may not directly regulate the Federal Government's operations or property." "It is of the very essence of supremacy," the Supreme Court has emphasized, "to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." To that end, "states have no power" to "in any manner control[ ] the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government." And "where 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' 'the federal function must be left free' of regulation" by the States.

Intergovernmental immunity "prohibit[s] state laws that either 'regulat[e] the United States directly or discriminat[e] against the Federal Government or those with whom it deals' (e.g., contractors)." A direct regulation is one that "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." It imposes conditions upon "a function of government," and it regulates "the right to carry on the business" of the federal government. Put another way, a direct regulation regulates the government qua government; it controls how the government conducts specifically governmental functions.

The Supremacy Clause prohibits States from directly regulating federal operations even when regulating state operations in the same manner…. "[E]ven the most unquestionable and most universally applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a marshal of the United States acting under and in pursuance of the laws of the United States." … And critically, "Supreme Court case law compels the rejection of a de minimis exception to the doctrine of intergovernmental immunity." So "[a] state or local law that directly regulates the conduct of the federal government or discriminates against it is invalid, even if it is no more restrictive than federal law."

In sum, if a state law directly regulates the governmental conduct of the United States without congressional authorization, it is void irrespective of whether the regulated activities are essential to federal functions or operations, and irrespective of the degree to which the state law interferes with such functions or operations….

Section 10 of the No Vigilantes Act expressly applies to federal officers. It controls the conduct of those federal officers in performing law enforcement operations. Section 10 explicitly overrides the federal government's power to determine whether, how, and when to publicly identify its officers. And in so doing, it regulates the manner and conditions under which federal agents can enforce federal law. Again, § 10 defines "law enforcement officer" as including "any federal law enforcement officer." And any non-uniformed federal law enforcement officer "operating in California" "shall visibly display identification that includes their agency and either a name or badge number or both name and badge number when performing their enforcement duties."

These provisions "lay[ ] hold of" federal agencies and officers "in their specific attempt to obey orders and require[ ] qualifications in addition to those that the [federal] Government has pronounced sufficient." As a result, § 10 regulates the performance of "governmental action[s]" which are "carried on by the United States itself"—not merely "persons who [a]re acting for themselves and not for the United States." Indeed, it applies only to law enforcement agencies and their officers, including federal law enforcement agencies and federal law enforcement officers. Section 10 thus directly regulates inherently sovereign functions. Because Congress has not authorized such legislation, it is barred by intergovernmental immunity.

The United States has also shown that "no set of circumstances exists under which the Act would be valid." Again, § 10 exclusively regulates quintessentially government conduct: law enforcement. So as applied to federal agencies and federal officers carrying out their duties under federal authority, the statute is invalid in all applications. The United States is therefore likely—indeed, certain—to succeed on the merits of its facial challenge to § 10's constitutionality….

California … advances its view that a state statute constitutes an impermissible direct regulation only when the law "impose[s] substantial burdens on federal operations." … The district court applied, and California urges us to adopt, the standard applicable to States' regulation of federal contractors and third-party employers—not the standard that governs direct regulation of the United States's governmental activities.

"Private contractors do not stand on the same footing as the federal government, so states can impose many laws on federal contractors that they could not apply to the federal government itself." But "where, as here, the governmental action is carried on by the United States itself and Congress does not affirmatively declare its instrumentalities or property subject to regulation or taxation, the inherent freedom [from direct regulation] continues." So the burden of the regulation on federal operations, whether substantial or otherwise, is irrelevant because, as discussed, there is no de minimis exception to the United States's immunity from direct regulation.

To be sure, the Supremacy Clause likely does not "bar[ ] all state regulation which may touch the activities of the Federal Government." For example, in Johnson v. Maryland (1920), the Supreme Court suggested that "when the United States has not spoken," States might be able to impose on federal officers "general rules that might affect incidentally the mode of carrying out the[ir] employment—as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets."

But the Court has never relied on that distinction to uphold a State's direct regulation of federal functions performed by federal officers. And unlike traffic laws which, for example, might require a full stop before a right turn, and which regulate conduct that any ordinary citizen could engage in, § 10 applies exclusively to law enforcement officials and exclusively to their performance of law enforcement operations. Thus, § 10 does not just "incidentally" sweep up the conduct of federal officers carrying out their duties. So even if we were to read Johnson as carving out an exception to intergovernmental immunity for laws of general applicability that affect federal operations in incidental ways—an issue that we need not and do not resolve today—such a putative exception would not apply here because § 10 is neither generally applicable nor its effect on federal officers "incidental."

Taking a different tack, California argues that the Supremacy Clause "provides a case-specific defense that confers immunity on federal officers who can show that they held an 'honest and reasonable belief' that the charged conduct was 'necessary in the performance of [their] duty.'" From there, the State contends that the United States's facial challenge must fail because there is no "reason to believe that in all (or nearly all) cases where [§ 10] might apply, the federal officer would be covered by the case-specific defense."

We agree that federal officers are immune from state criminal prosecution under state laws regulating conduct of members of the general public "only when [their] acts are both (1) authorized by the laws of the United States and (2) necessary and proper to the execution of [their] responsibilities." And under this standard, an officer need not "show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be."

The immunity at issue here, however, belongs to the United States, which enjoys a distinct form of immunity under the Supremacy Clause: intergovernmental immunity. Thus, whether any officer would hold an honest and reasonable belief that the charged conduct was necessary to perform his or her duty is irrelevant to whether the United States, or an agent exercising quintessentially governmental authority of the United States, is entitled to complete and total immunity from regulation of the type embodied in § 10. To reiterate, § 10, by its explicit terms, expressly regulates the conduct of federal officers while those officers are discharging law enforcement duties under federal authority. So an individual officer would be entitled to a Supremacy Clause defense against any prosecution brought under the statute….

Andrew M. Bernie, Mark R. Freeman, Daniel Tenny, and Eric D. McArthur represent the federal government.

The post California Law Generally Requiring Federal Law Enforcement Officers to Display ID Violates Supremacy Clause appeared first on Reason Magazine.

A federal judge referred Philadelphia District Attorney Larry Krasner and one of his deputies to the Department of Justice for potential prosecution for alleged misconduct. In response, Krasner's office filed a motion seeking to force the Judge--Paul Diamond--from a case involving his office.

Yesterday, Judge Diamond rejected the Philly DA's motion with a terse and forcefully worded order.

Here, from the order, is some background:

In the last two years, the Third Circuit, this Court, and the Philadelphia Common Pleas Court have condemned as dishonest repeated post-trial concessions of relief made by the Philadelphia District Attorney's Office. . . . The Pennsylvania Supreme Court was so concerned that it took the remarkable step of ordering all Philadelphia Common Pleas Judges to seek the Pennsylvania Office of Attorney General's intervention whenever the DAO made a post-trial concession, so that the Attorney General could confirm the concession's honesty. . . .

The DAO's present post-trial concession is also remarkable: Here, four DAO supervisors credibly testified that the District Attorney himself and his lieutenant, Assistant District Attorney Matthew Stiegler, urged them to make false representations to this Court to "protect the office." According to "the Four," the District Attorney threatened them with "consequences" if they did not. Because these and related accusations, if true, could amount to criminal misconduct, I disqualified the District Attorney and Stiegler from participating further in this case and referred the matter to the Department of Justice for investigation. In the DAO's newly-filed Motions and the District Attorney's unsworn "Declaration"—all of which generate more heat than light—the DAO seeks my recusal from all matters in which the Office appears and asks me to reconsider my rulings in this case. I decline to do either.

And on the merits of the recusal request, here is what Judge Diamond had to say:

During the three-day hearing before me, the DAO failed to object to virtually all the rulings and actions it now challenges. That the Office chose to object only after the Court issued a decision unfavorable to the District Attorney and his lieutenant confirms that the DAO merely disagrees with those rulings. . . .

The Office challenges my noting that the District Attorney neither testified nor offered an affidavit in response to the Four's testimony—on which I based my disqualification order and DOJ referral. I do not credit the District Attorney's absurd suggestion that he did not know he could testify—especially after I twice asked DAO counsel if he wished to call any witnesses. Nor has the District Attorney explained why he did not offer a responsive affidavit, which would have required the declarant to tell the truth (under penalty of false swearing). The Office thus cannot truthfully dispute that the District Attorney chose not to give his version of events in Court under oath. The DAO's apparent belief that this tactical choice was reasonable hardly warrants recusal.

Finally, the DAO believes that I should have been leerier of Mason's testimony—the various corroborative documents notwithstanding—and more responsive to the uncorroborated, dubious testimony of Stiegler. Again, disagreement with my credibility determination is not a basis for recusal. Liteky, 510 U.S. at 555 ("[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible."); Wecht, 484 F.3d at 220–21 (recusal not warranted despite the court's "skewed and unfair reading of the record"). The other arguments the DAO raises do not warrant discussion. Accordingly, I will deny as frivolous the Motion for Recusal.

And on the question of reconsideration:

The DAO does not discuss or even mention the burden and criteria a party seeking reconsideration must meet. Rather, as it did in seeking my recusal, the Office urges me to revisit my rulings because it disagrees with them. Once again, that disagreement does not warrant reconsideration. . . .

I will not discuss here every protest the Office makes to virtually all my rulings, my credibility determinations, and (once again) my reference to the District Attorney's silence in the face of damning testimony from his own employees and former employee. In his belated, unsworn "Declaration" the District Attorney attacks three of these witnesses as unworthy of belief.  This after-the-fact attempt to cram "evidence" into a closed record seems intended to persuade the media, not the Court. In any event, the evidence is unpersuasive and does not warrant reconsideration. . . .

Accordingly, I will again deny the DAO's frivolous Motion.

Judge Diamond's order concludes:

Four of the District Attorney's supervisors offered powerful, unrebutted testimony that their boss and Stiegler urged them to misrepresent to this Court. When the Four told the District Attorney that he had thus created a conflict compelling them to inform the Court and withdraw from this case, he threatened them with "consequences." There are few attorney transgressions more serious than lying to the Court, urging others to do so, or threatening them should they tell the Court the truth. . . . If this in fact occurred, it is all the more serious because it occurred after four Courts condemned the DAO's conduct in circumstances like those presented here. Disqualifying the District Attorney and Stiegler and referring them for investigation is thus reasonable and warranted. That the District Attorney chose not to testify but sought to "make his case" with an unsworn declaration—the credibility of which I am unable to assess—makes that investigation even more necessary. Although Mr. Krasner may yet have the opportunity to testify under oath in another forum, his intemperate filings provide no basis for recusal or reconsideration of my rulings.

The post Judge Refuses to Recuse in Case Involving Alleged Misconduct by Philly DA's Office appeared first on Reason Magazine.

The plaintiff, Jane Doe, instituted the present action seeking a Bill of Discovery from defendant Sacred Heart University (Sacred Heart), The national Chapter of Phi Sigma Sigma Fraternity, Inc., and The IOTA NU Chapter of the Phi Sigma Sigma Fraternity. The plaintiff's complaint alleges that in the Fall of 2025 she was involved in an incident with an underclassman during pledge week in which she was video recorded encouraging a Phi Sigma Sigma Fraternity pledge to drink alcohol (the hazing incident). The incident is detailed at paragraphs 11-15 of her complaint. The video was subsequently circulated around campus.

The plaintiff alleges that she became the subject of harassment and cyberbullying as a result of the publication of the hazing incident and that the defendants failed to conduct any meaningful investigation into her complaints. The plaintiff also alleges that she became the subject of improper disciplinary hearings and was left with no choice but to withdraw from Sacred Heart. The plaintiff seeks records related to the defendants' investigation into the hazing incident and the retaliation (which consisted of anonymous cyber bullying) which led to her "constructive expulsion" from the school.

The plaintiff further alleges that as a result of this retaliation, she began to suffer from severe anxiety and depression. The plaintiff seeks to proceed with her action for a Bill of Discovery by using a Pseudonym.

The plaintiff's request to proceed using a Pseudonym was initially granted on an ex parte basis. The defendants have objected to the plaintiff's continued use of a Pseudonym. The plaintiff has responded that the continued use of the Pseudonym is necessary. The plaintiff has submitted affidavits in support of her claims detailing the harassment and threats she has received and the effects they have had on her physical and emotional health.

The standard for the granting of Pseudonym status can be found in Practice Book § 11–20A(h)(1) which provides in pertinent part: "Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in knowing the name of the party or parties."

"The principle of openness of judicial proceedings includes the question of whether one may proceed anonymously therein, because the question of who is using the judicial system is ordinarily as much a part of that principle as why it is being used." For this reason, our Supreme Court has stated that "[t]he privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest."

"The presumption of openness of court proceedings … is a fundamental principle of our judicial system." This policy of openness is not to be abridged lightly.

"The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." "A [party's] desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity." "The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's] identity…. There must be a strong social interest in concealing the identity of the [party]….["]

The court has reviewed the affidavits submitted by the plaintiff associated with her treatment and is aware of the scope of her alleged harm and fears. However, what the court must determine here is the appropriateness of shielding the identity of someone who has victimized another. A review of the relevant caselaw concerning applications for the use of Pseudonym status does not reveal any cases where an initial wrongdoer was allowed to proceed with a Pseudonym because of alleged harm incurred in retaliation for their wrongdoing.

The court has determined that after balancing the interests of the parties in this matter, the plaintiff's personal privacy interests do not outweigh the public's interest in the continued openness of these judicial proceedings. The defendants' objection to the continued use of a Pseudonym is therefore sustained.

James M. Sconzo and Marc G. Bernatchez (Carlton Fields, P.C.) represent the University.

The post No Pseudonymity for Apparent Hazer Suing University for Supposedly Improper Actions Against Her appeared first on Reason Magazine.

The post Today in Supreme Court History: October 15, 1883 appeared first on Reason Magazine.

I gave a lecture at Stanford Law School last week on a Fourth Amendment topic that has drawn recent attention: How Should Flock Cameras Be Regulated Under the Fourth Amendment?  The video has now been posted, and you can watch the 35-minute lecture, plus 10 minutes of Q&A, starting at the 7:30 mark in the video below.

I will probably write a short essay about these topics over the coming weeks, focusing on the latter half of the lecture, so any feedback among those who have watched the lecture is very welcome. Thanks.

The post How Should Flock Cameras Be Regulated Under the Fourth Amendment? appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

Recent political developments have rekindled longstanding debates over "fusionism," the combination of libertarianism and conservative traditionalism that dominated the American right from roughly the late 1970s through the early years of this century. That dominance has been severely undermined and likely overthrown by the rise of nationalism and "postliberalism." But some would like to revive it. Reason editor Stephanie Slade's important new book Fusionism: Liberty, Virtue, and the Future of the American Right outlines one notable case for such a revival.

I agree with Slade, Jonathan Adler, and others that fusionism is far preferable to nationalism and postliberalism. But I am skeptical about its political viability. In addition, fusionism has significant conceptual flaws. Finally, at least in the short to medium term future, an alliance with "abundance liberals" is probably a more promising political strategy for libertarians than a revival of fusionism.

Despite my relative skepticism about a revival, I readily acknowledge fusionism's significant past achievements, and ongoing superiority over various other tendencies on the conservative right. Between the 1970s and the early 2000s, fusionist conservatives and libertarians (sometimes with the help of moderate/"neoliberal" Democrats) made huge contributions to such achievements as deregulation of many sectors of the economy, reducing tax rates, reinvigorating constitutional protection for property rights and limits on federal government power, and the West's triumph in the Cold War. While early fusionists sometimes undervalued the Civil Rights movement and were soft on racism, over time most of them came to promote color-blindness and and abjuring racial and ethnic discrimination in government policy. They even, for a long time, succeeded in making racial and ethnic color-blindness the dominant approach to such issues in the conservative movement. William F. Buckley and other fusionists also worked to purge the political right of its longstanding tendencies towards anti-Semitism. In combination, these are no small achievements.

The Rise of Right-Wing Nationalism and Postliberalism

But, especially over the last decade, fusionism has been displaced by nationalism as the dominant ideology of the Republican Party and the conservative movement. Where fusionism sought to reconcile traditionalism and liberty, nationalism is a grave menace to liberty across a wide range of issues. Consider Donald Trump's massive tariffs, federal takeovers of numerous private corporations, attempts to use the FCC and other government agencies to undermine free speech, and policy of mass deportations (which threatens the civil liberties and economic future of native-born citizens as well as immigrants).

Instead of color-blindness and nondiscrimination, we now have a conservative movement increasingly permeated with racial and ethnic bigotry and anti-Semitism of the kind fusionists sought to purge. Prominent right-wing "influencers" go so far as to claim we need to bar Indian immigrants because they work too hard and undermine the objectives of "homogeneity" and "maintain[ing] a white majority in the country." Many congressional Republicans also promote religious discrimination in immigration and other policies. In foreign policy, Trump has undermined relations with liberal democratic allies like Canada, Australia, and the nations of the European Union, and kowtowed towards illiberal nationalist authoritarians like Vladimir Putin.

Trump's idiosyncratic personal predilections contribute to some of these developments. But most arise from inherent tendencies of nationalism, which gravitates towards a zero-sum view of the world that leads to expanded government control of the economy, repression of racial and ethnic minorities, undermining civil liberties, and authoritarianism.

The "postliberalism" advocated by many leading right-wing intellectuals and activists is just as bad. Postliberals like Adrian Vermeule and Patrick Deneen are very clear about their desire to massively expand government control over the economy and civil society, and destroy both economic and personal liberties. Unlike nationalism, postliberalism has little mass public support. But it does have considerable influence among the intellectuals and activists who may staff future Republican administrations and congressional offices.

Illiberal big-government nationalism holds a strong sway over the Republican base. The 2024 election dramatically illustrates that. In the 2024 GOP presidential primary, Trump was challenged by Nikki Haley (a prominent advocate of traditional fusionism) and Ron DeSantis (popular governor of a major red state who tried to, in effect, split the difference between MAGA nationalism and pre-2016 conservatism). And, yet, despite the events of January 6, 2021 and numerous scandals, Trump not only beat these opponents, but did so very easily.  While that was partly due to his particular type of charisma, it also highlights the influence of illiberal nationalism over the GOP. Even now, with Trump increasingly unpopular, most congressional Republicans shy away from challenging his worst policies, for fear of losing to MAGA types in GOP primaries. Many of those who are willing to challenge him on major issues have either been ousted in GOP primaries (like Rep. Thomas Massie), or chose not to run for reelection because of the likelihood of suffering that fate (e.g. - Rep. Don Bacon).

Facing a difficult political environment in the 2026 midterm elections, some congressional Republicans have become more willing to criticize a few of Trump's policies, such as the badly mismanaged Iran War. But very few have repudiated his big-government nationalism across the board or called for a return to fusionism.

Perhaps this will all change once Trump leaves the scene. But we shouldn't count on it. At this point, the major likely contenders for the 2028 GOP presidential nomination - Vice-President J.D. Vance and Secretary of State Marco Rubio - seem like they are vying for the mantle of inheritors of Trump's worst tendencies, not opponents of them.

Inherent Limitations of Fusionism

Even if fusionists do manage to regain control of the Republican Party and the conservative movement, the ideology's inherent limitations might undermine its value. The extent to which fusionism is compatible with strong protections for economic and personal liberty is actually ambiguous. Frank Meyer, a key founder of fusionism in the 1950s and 60s, famously argued that liberty and virtue are mutually reinforcing because liberty is what enables people to be truly virtuous. A person who only does the right thing because he is forced to by the state isn't truly virtuous at all. Think, for example, of a man who only refrains from violence and theft for fear of going to prison. A paragon of virtue he is not.

This position has considerable merit. But most social conservatives, including many otherwise sympathetic to fusionism, don't fully buy it, or even come close. They argue that, at least in many instances, we want to achieve virtuous behavior, regardless of the motivation for it. Or, at least, that doing the right thing for a bad reason is far preferable to not doing it at all. Thus, if you believe that using pornography, prostitution,  gambling, taking various drugs, and so on are inherently immoral, then you may well advocate using government power to suppress these activities, even if people who only refrain out of fear of punishment are not as virtuous as those who abjure them voluntarily.

Many conservative fusionists do, in fact, believe that a wide range of consensual activities like the above are inherently evil. Alternatively, many believe that we have to suppress at least some of them out of paternalism. For example, they argue we must suppress drugs, prostitution, and gambling, because people who do these things don't understand what's good for them.

For these reasons, most conservative fusionists have in fact been willing to endorse many policies that severely curtail liberty. Even Ronald Reagan - the president whose administration most exemplified fusionism - promoted a major expansion of the War on Drugs, a federal policy that massively curtails liberty by killing or imprisoning hundreds of thousands people merely because they have used, possessed, or distributed substances the government considers too risky. Reagan's drug policies were not as bad as Trump's policy of outright murdering supposed drug dealers in the Caribbean and Pacific. But they were very bad, even so - and a striking example of the limitations of fusionism.

Elsewhere, I have argued that, at this moment in political history, the best available potential allies for libertarians are "abundance liberals." They are by no means perfect. But they agree with us - to a large extent - on numerous major issues, including trade, immigration, nuclear power, "YIMBY" housing deregulation, and more. And, like us, they tend to oppose both left and right-wing ethnic identity politics (on which latter point see recent articles by Matt Yglesias and Kelsey Piper). On the whole, they are less paternalistic and less prone to advocate suppression of consensual activities than most fusionist conservatives. They also have considerably greater influence over the Democratic Party and the political left, generally, than fusionists currently have in the Republican Party and the conservative movement.

The left, of course, has its own dangerous illiberal menace in the form of "democratic socialists," whose statism has much in common with that of MAGA nationalists. But this faction is nowhere near dominating the Democratic Party and the political left to the degree that nationalists have come to dominate the right.

None of this proves that libertarians cannot continue work with fusionist conservatives at all. There are many issues on which there is still room for cooperation. I myself have worked with such conservatives in the Society for the Rule of Law, and in the effort to combat Trump's tariffs (where they played crucial roles in the litigation that led to the invalidation of Trump's IEEPA tariff power grab by the Supreme Court and in currently ongoing efforts to challenge his attempts to use other laws to reimpose sweeping tariffs).  Some conservative fusionists are more pro-liberty than others. And, for most, there is considerable variation across issues.

And, perhaps, things will be different in a decade or two. The Trumpist moment in right-wing politics may dissipate over time, though it seems unlikely to do so quickly.

Productive cooperation between libertarians and (some) conservatives is still very much possible. But we should recognize that fusionists are unlikely to regain control over the conservative movement anytime soon, and that fusionism has notable inherent limitations. Thus, we should look for other allies, and carefully limit the percentage of our eggs that we put in the fusionist basket. At this point, it cannot safely hold very many of them.

The post Fusionism and its Limits appeared first on Reason Magazine.

To reduce voter confusion and increase confidence in elections, the Kansas legislature prohibited private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters. VoteAmerica and Voter Participation Center sued, alleging that the restriction infringed on their freedom of speech guaranteed by the First Amendment….

Relying on the political reaction against mail-in voting and Kansas's failure to prove an adequate fit between its stated interests and the Prohibition, the [district] court concluded that Kansas enacted the Prohibition to suppress speech supporting mail-in voting. Applying strict scrutiny (and intermediate scrutiny in the alternative), the court concluded that the law failed because it was not sufficiently tailored….

[W]e REVERSE the district court's judgment. The district court found an improper purpose without evidence from the Prohibition's justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error. Because the Prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional….

The court held the law was viewpoint-neutral (and content-neutral):

VPC [plaintiff Voter Participation Center] bears the burden to show that the Prohibition was enacted with viewpoint-discriminatory purpose…. A law is adopted with improper purpose if it was adopted "because of disagreement with the message the speech conveys." …

We do not, however, assume that a law is adopted with improper purpose simply "because it may disproportionately affect speech on certain topics," or because "it has an incidental effect on some speakers or messages but not others." McCullen v. Coakley (2014)….

Kansas contends that the district court wrongly inferred improper purpose when the Prohibition's text, enactment history, and the State's justifications for the law evince no such purpose. We agree.

First, Kansas's stated interests in the Prohibition are not intrinsically tied to restricting a viewpoint. Kansas stated that the Prohibition is meant to (1) minimize voter confusion; (2) facilitate efficiency in election administration; and (3) foster confidence in and protect the integrity of the electoral process. These are each legitimate interests—and they are independent of any alleged purpose in restricting VPC's pro-mail-in-voting viewpoint….

VPC counters that we must look beyond Kansas's stated interests to the Prohibition's operation. For, if "[e]very objective indication shows that the provision's primary purpose is to restrict speech that [advances a certain viewpoint]," we should not conclude that the provision was enacted with a proper purpose "simply because the statute itself and those defending it in court say that it is[.]" See McCullen (Scalia, J., concurring). VPC highlights the Prohibition's disproportionate effect on the pro-mail-in-voting viewpoint. It urges that the Prohibition functions to target only mail-in voting advocates because those against mail-in voting would not prefill applications.

That may be true, but caselaw forecloses VPC's argument. Without more, incidental disproportionate effect on one subject or viewpoint does not prove improper purpose. See McCullen (majority opinion) ("[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.")….

VPC fails to show that Kansas enacted the Prohibition to suppress its pro-mail-voting viewpoint. The district court's reliance on cultural antagonism against mail-in voting to infer the Kansas legislature enacted the prohibition with an improper purpose—when the law's justifications, text, and enactment history reveal no such purpose—was in error….

And the court held that the law passed the intermediate scrutiny applicable to content-neutral speech restrictions:

Speech restrictions survive intermediate scrutiny if they "(a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication." …

Kansas's stated interests are significant… Kansas identified the harm of voter confusion that the prefilled applications caused. The State says some voters called in angry and perplexed by inaccurate prefilled applications. And it points to others who unnecessarily submitted multiple applications after receiving the prefilled forms. Kansas identified the administrative burdens caused by the erroneously prefilled applications, duplicate submissions (caused, at least in part, by the prefilling confusion), and time spent assuaging voters' concerns and confusion. And Kansas identified lost confidence in the electoral process. County election officials were flooded with calls and letters from voters frustrated by the purported incompetence of their county because of errors in the prefilled applications….

The Prohibition is also adequately tailored to address Kansas's legislative interests and does not restrict substantially more speech than necessary. And because the Prohibition minimally burdens speech, it was not necessary to point to alternative regulatory schemes.

First, minimizing voter confusion. Kansas cites evidence of voter confusion caused by the prefilled applications. Kansas showed that the prefilled applications caused confusion among voters because of the applications' errors and many voters' beliefs that they needed to sign and mail prefilled applications even if they had already submitted one.

The Prohibition is tailored to alleviate this harm. Because of the Prohibition, voters will receive blank ballot applications with no error, removing any confusion resulting when voters received erroneous applications but had previously reported their information change to the county election office. And we can reasonably infer that some voters who felt compelled to submit the prefilled applications will not feel compelled to do the same when they are blank….

[T]he evidence here directly relates to the Prohibition—county officials testified to voter confusion resulting from (1) error in prefilled applications, and (2) receipt of prefilled applications, when voters had already submitted applications….

The Prohibition also does not burden substantially more speech than necessary to minimize voter confusion resulting from prefilled ballot applications. Kansas's solution—outright prohibiting the prefilling of applications—was reasonable and "the threat to free speech posed by the Prohibition is sufficiently small." There are few (if any) less-burdensome alternatives that could cure the problem because "the use of forms by the government inherently requires content restrictions." This showing is sufficient to survive narrow tailoring….

Second, administering efficient elections. Kansas presented evidence of the administrative burden caused by the erroneously prefilled applications (and duplicate submissions of prefilled applications). Kansas demonstrated that county offices regularly received erroneous prefilled applications and duplicate applications because voters believed they needed to submit the prefilled applications they received. Kansas produced evidence that these erroneous prefilled ballots and duplicate submissions produced a significant administrative burden. The three to five minutes processing time for an accurate, non-duplicate application could increase to over thirty minutes. The Prohibition alleviates this processing burden by reducing the amount of erroneously prefilled and duplicate applications county offices receive.

VPC nevertheless counters that Kansas failed to provide evidence of harm because it did not show how many duplicate or inaccurate prefilled applications county offices received. But the record demonstrates that at least 3% of VPC's Kansas voter database was inaccurate, suggesting that VPC sent more than 15,000 erroneous applications to Kansans during the 2020 general election. And county offices reported, without providing exact numbers, that the number of duplicate and erroneous prefilled applications skyrocketed. Kansas offers sufficient evidence supporting the claim that prefilled applications caused administrative harm.

To rebut Kansas's showing of narrow tailoring, VPC also relies on the district court's conclusion that the "real issue" producing the administrative burden was duplicate applications. But Kansas shows that it expended extra resources on duplicates and error-riddled prefilled applications. And Kansas points to evidence showing that voters submitted duplicates in part because they were prefilled—they thought they had to.

The district court reached the contrary conclusion that the prefilled applications did not cause administrative harm in large part because Cox and Shew testified that in some ways they preferred prefilled applications. But the district court erred in concluding that the Prohibition's potential allowance of one problem—increased human error in applications—negated the adequacy of the Prohibition's tailoring to a different problem, third-party error in the prefilled applications. Kansas has a right to act prophylactically to minimize administrative burden, and to do so in its best judgment by addressing one problem contributing to it.

Perhaps the Prohibition will be net neutral. But Kansas tailored the Prohibition to a discrete problem producing an administrative burden and directly ameliorated that problem. And because the Prohibition does not burden substantially more speech than necessary to further Kansas's interest in facilitating efficient elections, the Prohibition is narrowly tailored.

Third, fostering confidence in election integrity. Kansas offers record evidence of voter frustration and distrust caused by the prefilled ballot applications. Howell described voters venting frustration at the alleged incompetence of their county upon receiving applications that contained a wrong name and address; some who had previously communicated changes to the office were especially frustrated. The Prohibition addresses this distrust and frustration by removing the source of the voters' complaints….

Finally, the Prohibition leaves open ample alternative channels of communication. VPC "remains free to choose what avenue of communication it will use to advocate for mail voting, including the use of unsolicited mailers." It may even include a sheet with the previously prefilled information alongside a blank application….

Because the Prohibition is adequately tailored under intermediate scrutiny, its minimal restriction on the content of VPC's speech is permissible under the First Amendment.

Bradley J. Schlozman, Scott R. Schillings and Garrett R. Roe (Hinkle Law Firm LLC) represent defendants.

The post Kansas Ban on Private Parties' Partially Prefilling Voters' Mail Ballot Applications Upheld appeared first on Reason Magazine.

One of the most pressing is how and in what ways social-media use affects minors. According to the State of Florida, social-media companies seed their platforms with "addictive features"—push notifications, auto-play, infinite scrolling, etc.—in order to make them, well, addictive. These features, the state says, are "psychological hooks" that "overstimulate the reward center in the brain" and "foster compulsive overuse." Florida insists that children are particularly susceptible to these "addictive features" because their brains are still developing. In particular, the state contends, the features contribute to "[c]ompulsive or uncontrollable" social-media use among children and threaten a "youth mental health crisis." Children face "'sleep problems, attention problems, and feelings of exclusion,' all of which put [them] at risk of 'depression, anxiety, and neuroticism.'"

In an effort to protect children from social-media addiction and its ensuing effects, Florida passed HB3, which imposes age-restriction requirements on platforms that use "addictive features." In particular, HB3 requires platforms within its ambit to prohibit anyone under the age of 14 from creating an account, and to prohibit anyone else under 16 from doing so without parental consent….

[W]e hold that HB3 likely passes First Amendment muster because it is a content-neutral speech regulation that satisfies intermediate scrutiny….

The court held that HB3 was a speech restriction and thus implicated the First Amendment:

Florida contends that HB3 "regulates product design, not children's speech," and, accordingly, doesn't even implicate the First Amendment. In particular, the state says, HB3 restricts only the creation of accounts, not social-media access writ large, and thus regulates only "commercial transaction[s]"—namely, a platform's ability to "enter[ ] into a contract" with children of a certain age.

Even accepting the state's characterization, it seems clear enough to us that HB3 "disproportionate[ly] burden[s]" CCIA's member platforms' "protected First Amendment activities"—namely, "compiling and curating others' speech" for their users. In particular, HB3 burdens platforms' ability to communicate with their users by requiring them (1) to prohibit minors under 14 years of age from creating or maintaining accounts and (2) to secure parental consent before communicating with 14- and 15-year-olds.

But it concluded that HB3 was content-neutral:

HB3 is facially content neutral: It regulates social-media platforms based on their functional capabilities and features, not the content they communicate. The law neither references the substance of the speech on any platform nor draws distinctions based on it. Put differently, HB3 applies to platforms wholly without regard to the topics discussed or the ideas or messages conveyed on them. Truth Social is just as likely as Instagram to be affected by HB3 so long as (1) a proportion of minors under 16 spend an average of at least two hours a day on it; (2) it uses infinite scrolling, push notifications, auto-play, or livestreaming, or displays user-engagement metrics; and (3) it selects content algorithmically for users. And tellingly, neither a platform nor a user can "avoid or mitigate" the effects of HB3 by "altering" the substance of any posted expression.

HB3's justification is also content neutral: to "protect[ ] children from [social-media] addiction and associated mental-health harms." That purpose is "unrelated to the content of expression" on any given platform, and it doesn't "reflect[ ] disagreement with the message such speech conveys." …

CCIA contends that HB3 is content based because it applies only to so-called "social" speech: The law, CCIA asserts, targets websites "based on the 'social' subject matter 'of the material they disseminate.'" … [But t]he "social"-ness of speech is a function of its form, not its substance. Put simply, "social" speech, as CCIA seems to be using the term, is simply speech that occurs between users on social-media platforms, wholly without regard to "the topic discussed or the idea or message expressed." Users can engage in so-called "social" speech about any topic, from the sublime (religion, philosophy, etc.) to the ridiculous (celebrity gossip, cat videos, etc.)….

And it held that HB3 likely passed the "intermediate scrutiny" applicable to content-neutral speech restrictions, because the law "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests":

CCIA doesn't dispute that HB3 advances an important state interest; it acknowledges that "protecting minors is certainly a laudable goal." Even so, it says, HB3 fails intermediate scrutiny's first element because Florida's interest "is plainly related to the suppression of expression." In particular, CCIA emphasizes that HB3 prohibits addictive features only on websites, not on other "services that disseminate speech"—like, for instance, "books that end in cliffhangers." Florida singles out social-media platforms, CCIA insists, because they host speech that Florida "distrusts."

CCIA's argument doesn't necessarily follow. It would hold up only if websites have an inherent expressive value that differs from the expressive value inherent in all books. But both books and websites communicate content that spans the full range of expressive values; they just do so in different formats. Absent a restriction on the substance of the topics, ideas, or messages communicated by websites as compared to those communicated by books, HB3's "singling out" of websites is not, as CCIA argues, "plainly related to the suppression of expression." …

HB3 [is] also likely … appropriately tailored to advancing Florida's interest in protecting minors. In particular, HB3 doesn't "burden substantially more speech than necessary" because it (1) calibrates its restrictions by age, (2) regulates minors' creation of social-media accounts, not necessarily their access to the platforms themselves, (3) covers only those platforms that have been determined to induce heavy use by children, and (4) applies only to platforms that use both algorithms and one of several addictive features.

First, HB3 is age delimited. It prohibits minors under 14 from creating accounts, and it requires 14- and 15-year-olds to obtain parental consent before doing so. Notably, it imposes no limitations for those 16 years of age and older. The law thus applies only to younger minors and recognizes the fine-grained distinctions even among those to whom it applies—namely, that 13-year-olds (in general, middleschoolers) are different from 14- and 15-year-olds (those starting high school), who, in turn, are different from those 16 and up (budding adults).

Second, even among those to whom HB3 does apply, the law restricts only their ability to create their own accounts, not their ability to access social-media platforms per se. The creation of a social-media account is a commercial act—a business transaction. Even a minor—indeed, even a young child—may continue to use the platforms provided he either (1) uses his parents' (or someone else's) account or (2) gains access without an account.

Third, HB3 targets only the platforms to which many minors are already addicted. As a reminder, a platform comes within HB3's purview only if at least 10% of daily active users under 16 years old spend an average of two hours or more per day on it. Together with its other limitations, HB3's tailoring efforts fall within the broad range of potential legislative solutions that intermediate scrutiny permits.

And fourth, HB3 operates not as an outright prohibition of platform usage but rather as a "conditional ban" of sorts—namely, on platforms' use of addictive features and algorithms. The law applies only to platforms that use a combination of algorithms and addictive features and that succeed in keeping many minors on them for an average of at least two hours a day. Refraining from using either algorithms or addictive features, or remaining below the temporal threshold, exempts a platform from the law's application.

Now, none of that is necessarily to say that HB3 embodies the best policy choice. Maybe, maybe not. But intermediate scrutiny affords governments "latitude … to design regulatory solutions to address content-neutral interests." Accordingly, it is within Florida's discretion to draw the lines it has—many of which, of course, narrow the law's scope. So, for instance, Florida may validly opt to prohibit minors under 14, rather than 16, from creating social-media accounts, and to require 16-year-olds, rather than all those under 18, to obtain their parents' consent before creating accounts. So too, it may validly train its attention on platforms that a segment of children use more than two hours per day, rather than one. And finally, it is free to focus on sites that use both algorithms and "addictive features," rather than one or the other of those….

Judge Newsom also added a very interesting separate opinion, focused on as-applied challenges and intermediate scrutiny; interested readers may want to look at it, as well as at the panel's discussion of overbreadth challenges and other matters.

The post Florida "Addictive Features" Social Media Restrictions on Minors Likely Constitutional, Eleventh Circuit Holds appeared first on Reason Magazine.

On September 25, 2026, this Court issued a "bottom-line" Order granting in part and denying in part the motion of defendants FirstBank Puerto Rico and First Bancorp (collectively "FirstBank") to dismiss the complaint brought by plaintiff Julia Molchonova. This Opinion sets forth the reasons for that Order….

An excerpt of Molchonova's allegations (which are just allegations at this stage):

Molchonova, who was one of Epstein's victims, alleges that FirstBank participated in, and benefited from, Epstein's vast criminal enterprise in violation of federal and local law…. As alleged, FirstBank maintained dozens of accounts for Epstein, his entities, and his agents, facilitated millions of dollars in transfers to and from these accounts, and served as a banking reference for Epstein when he sought to charter his own banking entity. These services, among others, were "integral in helping [Epstein] fuel his international sex trafficking operation." …

The court allowed Molchonova's claim under the Trafficking Victims Protection Act ("on behalf of a putative class of Epstein victims") to go forward:

As this Court recently explained, the TVPA imposes civil liability on any "person or entity that knowingly benefits, or attempts or conspires to benefit, financially or by receiving anything of value from participation in a venture which that defendant knew or should have known has engaged in an act in violation of the TVPA." Participant liability "involves three elements: first, that the defendant participated in a commercial sex trafficking venture; second, that the defendant knew or should have known that the venture either involved the perpetrator's use of force, the threat of force, fraud, or coercion to cause the victims to participate in sex or that the venture involved sex with victims who were under the age of 18; and third, that the defendant benefited from its participation in the venture." …

[F]or her participation claim to survive, Molchonova must allege more than that FirstBank provide routine banking services to the Epstein venture. The Court concludes that she has done so. Molchonova has alleged an extensive, longstanding, and continuous relationship between FirstBank and Epstein. For more than two decades, FirstBank opened and maintained more than 30 accounts for Epstein and related entities. The Complaint alleges that these accounts were used to pay victims, and circulate millions of dollars in funds between various Epstein-related entities and individuals, FirstBank processed millions of dollars in payments from Epstein's personal accounts to the FirstBank accounts of entities held by Epstein and his known associates. Several of these entities owned the properties where much of Epstein's trafficking and sexual abuse transpired, while others made payments to victims of Epstein's abuse.

While such extensive activity was more than "routine," what is crucial is that Molchonova has alleged with specificity that FirstBank maintained this extensive and longstanding relationship with Epstein despite ever more extreme "red flags" that ultimately led every other bank to drop him as a client.

Between 2007 and 2015, HSBC, Goldman Sachs, Bank of America, Merrill Lynch, JP Morgan Chase, UBS, and CitiBank all terminated their relationships with Epstein. But FirstBank simply took advantage of these closures to enhance its profitable banking relationship with Epstein. For example, in 2018, "both Fidelity Investments and Deutsche Bank closed its [sic] accounts with Epstein and sent funds from those closures to FirstBank."

At best, these allegations demonstrate an astonishing ignorance to the apparent consensus of the financial services industry not to provide banking services to someone whose grotesque misconduct was becoming ever more obvious. At worst, drawing all inferences in Molchonova's favor, the complaint alleges that FirstBank provided continuous and substantial financial services to Epstein and his associates despite knowing that these services were being used to further Epstein's sex trafficking venture. See Bank of Am. (finding that facilitating wire transfers constituted participation for purposes of the TVPA because the defendant "had every reason to know that [the plaintiff] had no ability to earn legitimate income in the United States and that Epstein, who arranged the set-up of the account and was involved with the transfers, had already been convicted of sex crimes involving underage girls").

While any one of FirstBank's services to Epstein may be claimed to be "routine" (though in many instances even that is suspicious), together, the complaint alleges that FirstBank was deeply enmeshed in Epstein's misconduct for its own financial benefit….

Having concluded that Molchonova has alleged participation, the Court turns to the second element—whether Molchonova "adequately alleges that [FirstBank] either knew or should have known that Epstein's venture used force, the threat of force, fraud, coercion, or some combination of the same to cause its victims to submit to sex, or that the victims who submitted to sex were under the age of 18." The Court concludes that she has.

As an initial matter, knowledge, for purposes of the TVPA, requires only that the defendant "'should have known' in the usual sense of negligence." … Molchonova's complaint alleges that, throughout its twenty-plus-year relationship with Epstein, FirstBank ignored considerable, publicly available information about Epstein and his close associates. As this Court previously explained with respect to a different bank, "while [FirstBank] was not required to automatically credit" these sources of information about Epstein, "the amended complaint plausibly asserts that the bank turned a blind eye to these repeated, detailed allegations, some emanating from police reports widely circulated in the press, by utterly failing to engage in due diligence about them."

Molchonova also alleges that there was significant FirstBank account activity that itself should have raised red flags. For instance, in 2018—after years of media and law enforcement reports describing Epstein as a sexual abuser and sex trafficker—FirstBank opened a bank account for one of Epstein's victims using the same address in the U.S. Virgin Islands as Epstein and his other related accounts. Likewise, Molchonova alleges with sufficient specificity that Epstein and his agents owned a network of FirstBank accounts including accounts for entities and properties that were publicly linked to Epstein's abuse and trafficking venture that received millions of dollars in transfers from other of Epstein's accounts. And, as emphasized above, the complaint plausibly alleges that FirstBank should have been aware of the laundry list of other banks that cut ties with Epstein in the decade preceding his death in 2019….

The third element of a TVPA participation claim is that a defendant must have benefited from its participation in a sex trafficking venture. This element can be satisfied by "allegations that [FirstBank] knowingly received revenue from its participation in generally assisting a venture that it knew, or should have known, involved sex trafficking."…

Molchonova's allegations easily satisfy this standard. She alleges that "Epstein only offered his business to FirstBank because it was knowingly aiding Epstein's sex trafficking operation and the concealment thereof. FirstBank knew that if it stopped aiding the operation, it would lose the Epstein-related accounts and the financial benefits attached to handling those accounts." She also alleges that "FirstBank financially benefitted in the form of profits, high-net-worth clients, and other financial incentives, for its participation in the Epstein sex-trafficking venture." These allegations plainly state that FirstBank profited from its longstanding and continuous relationship with Epstein, and plausibly proffer that Epstein would not have continued banking with FirstBank if it did not turn a blind eye to his use of FirstBank's services to facilitate his sex trafficking venture….

For similar reasons, the court also allowed Molchonova's claims under the New York City Gender-Motivated Violence Protection Act to proceed. But the court dismissed her claims "that FirstBank obstructed enforcement of the TVPA in violation of 18 U.S.C. §§ 1591(d) and 1595":

As this Court has previously concluded in a substantially similar case, "[b]ecause Congress enacted Section 1591(d) in 2008 and did not give that provision retroactive effect, the investigations that resulted in Epstein's 2006 guilty plea and his 2007 non-prosecution agreement there cannot support plaintiffs' claim for obstruction." Accordingly, the relevant inquiry for purposes of Molchonova's obstruction claim is whether she has alleged that FirstBank knew of a post-2008 effort to enforce the TVPA and intentionally obstructed, or attempted to obstruct, that enforcement effort. The Court concludes she has not….

The post Lawsuit Alleging Bank Played Role in Facilitating "Jeffrey Epstein's … Sex-Trafficking Operation" Can Go Forward appeared first on Reason Magazine.

The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality. Not every convict poses such a risk—but James Bost does. He pleaded guilty to terroristic threats and other crimes. Years later, police caught him with a pistol not once, but twice. So he was charged with having a gun despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which makes it illegal for felons to have guns….

But Bost's violent conviction is prima facie enough to disarm him. We hold that some predicate crimes (like Bost's conviction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone….

In 2002, Bost carjacked someone, threatening to kill the driver unless she gave him money. To get that money, he drove to her mother's home, where she escaped from the car, screaming for help. Bost was then arrested and pleaded guilty to terroristic threats and criminal conspiracy (as well as false imprisonment and simple assault). Those first two Pennsylvania crimes are first-degree misdemeanors punishable by up to five years in prison. One element of the terroristic-threats crime required "a threat to commit any crime of violence with intent to terrorize another." Bost was sentenced to four years' probation.

Later, while on bail for another arrest, Bost failed to appear in court. U.S. Marshals tracked him down. They found him in his girlfriend's home, next to a couch with a stolen .38 caliber pistol on it. Bost was indicted federally for possessing a stolen gun and possessing a gun despite his convictions (based on the terroristic-threats and conspiracy convictions). He moved to dismiss the indictment, arguing that § 922(g)(1) [the federal bans on felons possessing guns -EV] is unconstitutional as applied to him and that it is facially unconstitutional….

The court held that the case against Bost could go forward:

The Second Amendment secures the right of "the people" to "keep and bear Arms." Since felons are part of "the people," the amendment protects what § 922(g)(1) forbids—a felon's having a gun. So the government must justify this restriction by analogizing to our nation's historical tradition of gun regulation….

Two years ago, we held § 922(g)(1) unconstitutional as applied to a man with a prior conviction for food-stamp fraud.. But we flagged a limit to our holding, stressing that the government had no evidence that Range posed a risk of violence to others or that his crime "[was] closely associated with physical danger." That aligned with the Supreme Court's later holding in Rahimi that, under a law banning such people from having guns, someone who poses "a clear threat of physical violence to another" person "may be disarmed." … So § 922(g)(1) is constitutional insofar as it disarms convicts who pose a risk of physical violence from misusing guns.

Now we ask … how may the law address a risk of violence[, focusing on] … the nature of the restriction imposed, the process used to impose it, and its duration….

Historically, there were two paths to disarming people. One was individualized: A court found someone to pose a risk of physical violence from misusing guns and disarmed him. The other was categorical: A law targeted a disloyal group that risked violence to the community. In those instances, a member of the group could often get his rights back by showing that he himself did not pose a risk of violence.

Individualized judgment was the norm. For centuries, disarmament was tied to a judge's finding that someone posed a risk of physical violence from misusing guns. Sometimes, that meant punishing risky behavior. Going-armed laws punished and disarmed those who used their weapons to menace others. Rooted in the old bans on affrays, they targeted conduct that spread fear and threatened the peace: going armed "to the Terror of the People." These laws were often enacted with bans on fighting, together targeting conduct likely to lead to violence.

Other laws, like surety laws, aimed to prevent harm before it happened. If someone credibly feared that another person posed a risk of physical violence, including by misusing his arms, he could complain to a magistrate. The magistrate would hold a hearing, weigh the evidence, and decide whether the accused was likely to breach the peace. If the risk was real, the accused had to post a bond promising to keep the peace for up to six months. If he failed to post it, he would go to jail; if he breached the peace, he would forfeit the bond. Either way, the restraint was tailored to the person's risk….

To be sure, some laws disarmed categories of people, but these examples are few, fraught, and often discriminatory. Most founding-era bans disarmed political enemies—groups thought capable of collective rebellion. These measures were tied to allegiance and often lifted once the perceived threat passed. Plus, many applied to groups that lawmakers refused to treat as part of "the people" protected by the Second Amendment, like slaves and American Indians. Both features meaningfully distinguish these historical bans from today's across-the-board ban on felons. Even so, their procedures for rearmament are instructive…. [R]earmament was not automatic. Often, the disarmed person had to make some showing that he no longer posed a risk of violence…. [This paragraph, and the section that contains it, got only 7 of the 14 total votes; Judge Tamika Montgomery-Reeves, who joined the rest of the opinion, declined to join this part because it "relies on repugnant and discriminatory laws and procedures that would very likely violate the First and Fourteenth Amendments of the U.S. Constitution…. I question whether the invidious, and likely unconstitutional, laws undergirding these rearmament procedures are valid inputs for Bruen's test. I need not answer that question, however, because less constitutionally infirm comparators support the same conclusion."]

Bost's Violent Conviction Suffices, at This Early Stage, to Show His Risk of Violence …

Some predicate crimes speak for themselves. Violent offenses, like common-law murder, forcible rape, and common-law robbery, mark a person as such. And the going-armed laws disarmed people whose conduct was threatening. These types of convictions suffice to justify disarmament. We do not require that the predicate violent or threatening crime itself involved guns or the threat of guns. Unarmed forcible rapes, for instance, can qualify.

Other predicate crimes speak for themselves in the other direction: They are not even physically dangerous, let alone violent.

There may perhaps be a third, intermediate category: Still other predicate crimes may be closer calls. Though they may not involve immediate violence, they may fuel it and pose risks to the community. Whether these predicate crimes justify disarmament depends on their own historical analogies.

So at either end of the spectrum, the predicate crime tells the court enough about the felon's risk of physical violence to decide whether to dismiss a § 922(g)(1) indictment. In the middle, it is possible that courts may have to draw more lines.

But if so, we need not draw them today. Bost was convicted of terroristic threats. The elements of that predicate crime included "a threat to commit any crime of violence with intent to terrorize another." … That conduct fits squarely within the historical tradition of disarming those who threaten violence. It echoes the core concern of the going-armed laws: conduct that terrifies others and breaches or risks breaching the peace. Bost's indictment is sufficient as a matter of law. And at this early stage, a court may dismiss only if the predicate conviction is insufficient as a matter of law to put the defendant into the category of persons who pose a risk of physical violence from misusing guns. We need not address what, if anything, could later take a defendant out of that category….

Judge Patty Schwartz wrote an opinion concurring in the judgment; so did Judge Jennifer Mascott. Judge Peter Phipps filed a dissenting opinion. All are worth reading, as is the rest of Judge Bibas's opinion.

Donovan J. Cocas, Laura S. Irwin, and Vivek Suri represent the government.

The post Second Amendment Rights Forfeited by Past Terroristic Threats Conviction appeared first on Reason Magazine.

I'm interviewed about this roughly at about 3:15 to 6:30 of this episode of PBS's Civics Made Easy series. Unfortunately, they couldn't include all my discussion of the historical support for my view, so I thought I'd reprise below an earlier post of mine on the subject.

* * *

The U.S. Is Both a Republic and a Democracy

Don't just take it from me; take it from the Framers and other early American statesmen: "Democracy" has long included representative democracy as well as direct democracy, and "Republic" was used to refer to regimes that were not representative.

[1.] I often hear people argue (often quite militantly) that the United States is a republic, not a democracy. But that's a false dichotomy. A common definition of "republic" is, to quote the American Heritage Dictionary, "A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them"—we are that. A common definition of "democracy" is, "Government by the people, exercised either directly or through elected representatives"—we are that, too.

The United States is not a direct democracy, in the sense of a country in which laws (and other government decisions) are made predominantly by majority vote. Some lawmaking is done this way, on the state and local levels, but it's only a tiny fraction of all lawmaking. But we are a representative democracy, which is a form of democracy.

[2.] And the same two meanings of "democracy" (sometimes direct democracy, sometimes popular self-government more generally) existed at the founding of the republic as well. Some framing-era commentators made arguments that distinguished "democracy" and "republic"; see, for instance, the Federalist (No. 10), as well as other numbers of the Federalist papers. But even in that era, "representative democracy" was understood as a form of democracy, alongside "pure democracy": John Adams used the term "representative democracy" in 1794; so did Noah Webster in 1785; so did St. George Tucker in his 1803 edition of Blackstone; so did Thomas Jefferson in 1815. Tucker's Blackstone likewise uses "democracy" to describe a representative democracy, even when the qualifier "representative" is omitted.

Likewise, James Wilson, one of the main drafters of the Constitution and one of the first Supreme Court justices, defended the Constitution in 1787 by speaking of the three forms of government being the "monarchical, aristocratical, and democratical," and said that in a democracy the sovereign power is "inherent in the people, and is either exercised by themselves or by their representatives." He added,

Of what description is the Constitution before us? In its principles, it is purely democratical ….

Chief Justice John Marshall—who helped lead the fight in the 1788 Virginia Convention for ratifying the U.S. Constitution—likewise defended the Constitution in that convention by describing it as implementing "democracy" (as opposed to "despotism"), and without the need to even add the qualifier "representative":

I conceive that the object of the discussion now before us is whether democracy or despotism be most eligible. I am sure that those who framed the system submitted to our investigation, and those who now support it, intend the establishment and security of the former.

The supporters of the Constitution claim the title of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy because we are convinced that it has a greater tendency to secure our liberty and promote our happiness.

We admire it because we think it a well-regulated democracy: it is recommended to the good people of this country: they are, through us, to declare whether it be such a plan of government as will establish and secure their freedom.

Sir William Blackstone, who was much read and admired by the framers, likewise used "democracy" to include republics: "Baron Montesquieu lays it down, that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question, how far private luxury is a public evil …." Holland was of course a republic, and England was compounded of monarchy and government by elected representatives; Blackstone was thus labeling such government by elected representatives as a form of "democrac[y]."

The same is so today. America is a democracy, in that it's not a monarchy or a dictatorship. (Some people claim it is too oligarchic, in which case they'd say America isn't democratic enough—but again they'd be distinguishing democracy from oligarchy.) America is not a direct democracy, but a representative democracy is a form of democracy.

[3.] And the Framers didn't just refer to representative government as democratic—they referred to direct democracy as a republic.

One way to get at this is to ask: What is the first nation that you think of that the Framers would likely have called a "Republic"? What is the most famous historical Republic, indeed the one that gave us the word "Republic"?

Why, the Roman Republic, of course, which The Federalist and many others discussed as a republic. And yet in the Roman Republic, there was no representative legislature.

The Senate (which wasn't elected or representative) did have considerable interpretive and advisory authority, and the elected praetors could interpret the law in important ways. But the laws themselves were made by direct vote of the citizens (or just by the plebeians), in the comitia centuriata, the comitia tributa or the concilium plebis. (If someone suggests that the Senate was Rome's elected representative legislature, you can point out that it was not elected, not representative, and not a legislature.)

Roman lawmaking was thus direct lawmaking, though with a voting system that heavily favored the rich, not representative lawmaking. The laws had to be proposed by a magistrate, such as a consul or a tribune of the plebs, so it wasn't precisely like an American initiative. But the laws didn't have to first be passed by some elected legislative body first (again, remember that there were no elective legislative bodies); in principle, they just had to be proposed by one elected magistrate—such as one of the 10 tribunes of the plebs—and enacted by popular vote in the assembly. You can think of it as something between the modern American referendum and the modern American initiative. But it was direct popular lawmaking, not representative lawmaking.

And the Framers routinely called Rome a republic—indeed, they labeled Athens a republic, even though Golden Age Athens famously involved direct democracy. Hamilton in Federalist No. 6 states that "Sparta, Athens, Rome, and Carthage were all republics." Hamilton in Federalist No. 34 specifically talked about the Roman legislative assemblies, yet called Rome a republic. Federalist No. 63, generally attributed to Madison, labeled Rome as an example of a "long-lived republic." (Profs. Akhil Amar and Rob Natelson have written more extensively on this.)

[4.] Today, "republican" does tend to refer more to representative systems, but "democratic" often refers to following the will of the people, whether through direct democracy or representative democracy—the precise meaning differs depending on the context. If you're asking whether to do something by direct ballot or by representative processes, you might ask whether we should be more democratic or more republican. If you're asking whether China would be better off giving more power to Chinese voters, you might ask whether it should be more democratic or less democratic, quite apart from whether you think the democracy should be direct or representative.

To be sure, in addition to being a representative democracy, the United States is also a constitutional democracy, in which courts restrain in some measure the democratic will. And the United States is therefore also a constitutional republic. Indeed, the United States might be labeled a constitutional federal representative democracy.

But where one word is used, with all the oversimplification that this necessary entails, "democracy" and "republic" both work. Indeed, since direct democracy—again, a government in which all or most laws are made by direct popular vote—would be impractical given the number and complexity of laws that pretty much any state or national government is expected to enact, it's unsurprising that the qualifier "representative" would often be omitted. Practically speaking, representative democracy is the only democracy that's around at any state or national level. (State and even national referenda are sometimes used, but only for a very small part of the state's or nation's lawmaking.)

There are lots of arguments that could be had about how our system of government should be structured: whether it should be more or less or differently democratic; whether it should include more or fewer aspects of direct democracy; whether it should have more requirements for supermajoritarian action (such as constitutional constraints, or the filibuster, or what have you); which levels of government (federal, state, or local) should have more or less power; and much more. But claiming that we're a republic and not a democracy (or a democracy and not a republic) strikes me as inconsistent both with modern usage and with how the leading lights of the Framing Era and early Republic generally treated the terms.

The post America: Democracy or Republic? appeared first on Reason Magazine.

The Second Amendment is a primary protection against tyranny, a strong bulwark securing American liberty, and an indispensable means of defending the public good. So courts testing restrictions on these "most sacred" and "necessary" rights must consider the history and tradition of firearm regulations with care and rigor. Edward Williams had two convictions for driving under the influence of alcohol in the early 2000s, the second of which (unbeknownst to him) triggered 18 U.S.C. § 922(g)(1), which purports to make it "unlawful" for persons convicted of "a crime punishable by imprisonment for a term exceeding one year" to possess firearms. Seeking to restore his rights, Williams filed for a declaratory judgment to confirm that § 922(g)(1), as applied to him, runs afoul of the Second Amendment.

The court ruled in Williams' favor; here are some excerpts from the long opinion:

We start [the Second Amendment inquiry] by asking the regulator whether its proposed liberty definition (or restriction, though every definition has some contracting element) is consistent with tradition. In assessing the response, we look for a custom of similar definitions.

A definition fitting within common and longstanding firearm regulation helps the regulator because long acceptance evidences noninfringement of the right. In contrast, it is likely impossible to show equivalence when the challenged restriction applies to people, places, and things that have gone unregulated for most of America's existence. Time is essential, and a recent innovation must be weighed against our "Anglo-American common-law tradition." An enduring custom since the founding is all but dispositive—one would be hard-pressed to argue that a state can prohibit the purchase of a flintlock musket. The same framework applies with respect to permissible regulations of people: if a regulation was common throughout our history, that is strong evidence that it does not infringe the right.

That is not the case here given the novelty of forever restricting all felons from possessing firearms for lawful purposes. The Federal Firearms Act of 1938 first made it "unlawful" for "any person who has been convicted of a crime of violence or is a fugutive [sic] from justice" to possess a firearm. {A "crime of violence" was defined in the Act to mean "murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year."}

In 1961, Congress expanded this prohibition, abandoning a focus on violence in favor of a technical bar on any person convicted of a "crime punishable by imprisonment for a term exceeding one year." By this point, "a crime punishable by imprisonment for more than one year" was the common approximation for "felony." The late entrance of a regulation tying felonies to gun possession disproves any longstanding customary contraction of the liberty codified in the Second Amendment.

 Of course, common exclusions from society—which do not explicitly touch on arms-bearing—might sometimes, but not always, reveal that a regulation of an individual is consistent with the reasoning offered by the regulator. Take classic felonies like murder and rape, long punishable by death. Those statutes evidence a regulatory custom of indirect disarmament since a "sentence of death" left the person "already dead in law" and "out of its protection." So too when those same offenses resulted in life imprisonment, life servitude, or civil death. Punishments for crimes belonging to this unbroken custom were justly predicated on the protection of the community from prospective physical danger….

But the Justice Department's apparent attempt to broaden discrete crimes justly punished by death to include all felonies, much less all crimes punishable by more than one-year imprisonment, misses the point…. [T]he modern regulatory label of felony—a crime punishable by more than one year of imprisonment—is not even close to the proper "level of generality at which to define [the] historical practice." It captures conduct that would have commonly justified exclusion, and a host of less significant acts. So simply pointing to Williams's felony because it is labeled "felony" does not do.

We must move to a more granular comparison, assessing Williams's conduct against the Justice Department's proffered analogy…. Williams's predicate offense requires that the offender 1) "drive, operate or be in actual physical control of the movement of a vehicle" 2) "after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher" and 3) "ha[ve] one prior [DUI] offense." This offense plainly does not contain threatening or violent elements. So we must turn to the Government's proffered analogues to determine if they allow us to infer that the restriction imposed by Williams's continued disarmament is consistent with the right codified by the Second Amendment.

The Department of Justice analogizes this conduct to laws "disarming loyalists, underage individuals, [ ] vagrants," "common drunkards," and "habitual drunkards." But only those laws restricting drunkards bear any resemblance to Williams's conduct, so we focus our analysis there. The first two elements of Williams's offense are a variation of public intoxication laws, customarily defined as the vice of drunkenness made public. The third element sweeps in proscriptions against being a "common" or "habitual" drunkard, i.e., the analogy on which the Justice Department rests its case. Some of those laws allowed for the involuntary commitment of habitual drunkards to prisons or inebriate asylums. Others allowed courts to place habitual drunkards under guardianship.

The Justice Department acknowledges it may proscribe Williams's possession of firearms only if he "presently poses a physical danger if armed," but offers no evidence to establish this as the aim of the habitual drunkard laws. Indeed, it provides no analysis on the "why" of these laws. And that silence has since been supplemented by the Supreme Court's conclusion that these same laws did not seek "to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation."

Nor does the Justice Department explain "how" the habitual drunkard laws ameliorated the threat of firearm misuse in a way relevant to the operation of § 922(g)(1). As Bruen clarifies, "if earlier generations addressed the societal problem, but did so through materially different means, that … could be evidence that a modern regulation is unconstitutional." That is the case here, and why the analogy to the permanent bar in § 922(g)(1) breaks down.

Most statutes capped the commitment of habitual drunkards to the state inebriate asylum, prison, or hard labor to a few months or years. Others provided for an indefinite period of incarceration, but had no indication that upon release individuals continued to forfeit their arms. Rather, once someone was "safe" to "go at large," they were restored to the status of a full rights-bearing citizen.

Finally, the Justice Department fails to show that Williams threatens to "misuse[ ] a gun while intoxicated," or that he "poses a danger to himself or others as a result" of alcohol abuse. In fact, much like those nineteenth-century drunkards released from custody and restored their rights, the record shows that Williams poses no present physical danger from the use of a firearm, or anything else.

He has done nothing violent, let alone dangerous, for over twenty years, and has held steady employment at the same job for over three decades. He "no longer consume[s] alcohol, save for the occasional glass of wine with dinner or champagne at home on New Year's Eve with [his] family," testimony the Justice Department has not challenged. He has submitted to an expert examination, finding he "has a normal personality, without psychopathology and without addiction or violent tendencies." And there is nothing to suggest Williams has ever wielded firearms in a manner dangerous to peaceable persons, despite a lifetime of gun ownership. Williams is presently a peaceable citizen, capable of bearing arms consistent with the design of the Second Amendment….

Our Republic, like those before it, has long understood "how base it is to pour down more liquor than one can carry," and that "drunkenness is nothing but a condition of insanity purposely assumed." Driving under that condition no doubt exacerbates the fault of the wrongdoer. Williams's criminal conviction and sentence is consistent with our tradition because acts incongruous with the virtue necessary for enjoying the rights of our political community have always justified punishment and the corresponding loss of civic privileges.

But virtuous life is a perpetual project, with redemption and reentry into the community a constant promise. And with that rehabilitation comes restoration of the civic privileges guaranteed to citizens by the Constitution, and the freedom to again exercise the natural right of armed defense against threats and tyranny. For the reasons above, we will affirm the District Court's judgment granting Williams summary judgment.

There are other interesting matters in Chief Judge Michael Chagares's partial concurrence and partial dissent, in Judge Arianna Freeman's partial concurrence and partial dissent, in Judge Patty Schwartz's dissent, and in parts of the majority opinion I ddin't quote above. (The opinions also discuss the important and interesting question of whether and when the newly revivified statutory mechanism for getting relief from firearms disabilities, 18 U.S.C. § 925(c), should preclude plaintiffs from bringing direct challenges to the disability.) Here's an excerpt from the Freeman opinion:

I part ways from the majority opinion when it says a prior conviction is disarming on its face only if it involved violence or threats. To be sure, convictions that require violence or threats are disarming; … that is consistent with our Nation's historical tradition of firearm regulation. But so are other convictions that show a person poses a credible threat to the physical safety of others.

In United States v. Rahimi, the Supreme Court upheld a different federal firearm disability because it "presume[d] … that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others." And a prior conviction can encompass such a finding even if the conviction did not require violence or threats per se.

Such is the case here. Williams was convicted of "driv[ing], operat[ing] or be[ing] in actual physical control of the movement of a vehicle" after having consumed enough alcohol to put him at "[h]ighest rate of alcohol" proscribed by Pennsylvania DUI law. And he was convicted of doing so after he previously sustained a DUI conviction.

Williams's DUI conviction establishes that he controlled a vehicle while highly intoxicated, notwithstanding the obvious risks that his conduct could severely injure or kill others. In other words, he engaged in the dangerous use of "what can be a deadly weapon: a vehicle."

Because Williams's conviction shows that he "pose[d] a credible threat to the physical safety of others," the Second Amendment does not bar Williams's disarmament, at least for some period of time.

Williams's conviction also satisfies the narrower standard our Court announces today. The majority opinion asks whether the conduct at issue presents a risk of physical danger from the misuse of firearms. But we have acknowledged that a prior conviction can evince a risk of firearm misuse even if the conviction did not involve firearms. And Williams's dangerous misuse of one potentially deadly weapon (a motor vehicle) evinces a risk that he would dangerously misuse another potentially deadly weapon: a firearm….

Joshua Prince (Prince Law Offices, P.C.) and Dillon Harris (Civil Rights Defense Firm) represent Williams.

The post Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction appeared first on Reason Magazine.

SCOTUSBlog has published the latest essay from me and Randy Barnett on the recent changes in constitutional law. This entry focuses on the Religion Clauses and the Second Amendment. It begins:

Twenty years ago, the Supreme Court strictly enforced the separation of church and state, deferentially reviewed restrictions on free exercise rights, and played no role in enforcing the Second Amendment. This was the state of the law when one of us began law school in the fall of 2006.

What a difference two decades has made for the First and Second Amendments.

The post New on SCOTUSBlog: "Witnessing a reorientation of the First and Second Amendments on the Roberts court" appeared first on Reason Magazine.

These cases arise from the fallout over an internal memo that two senior news managers at WOOD‑TV—Amy Fox and Stanton Tang—either wrote or approved regarding coverage of Pride-month events. According to Fox and Tang, management initially agreed that the memo merely restated corporate policy, but after some colleagues misinterpreted the memo as being anti‑gay—and after the memo was leaked externally—management allegedly shifted its stance and planted news stories that portrayed Fox and Tang as anti‑gay. The plaintiffs contend Nexstar did this to cause Fox and Tang to absorb the blame for the controversy while allowing the company to emerge unscathed.

In early June of 2023, Stanton Tang began to feel concerned about WOOD-TV's coverage of Pride-related events. To him, it seemed that the newsroom's approach to Pride coverage differed from its approach to coverage of other events, such as women's history month or black history month.

As Tang tells it, when it came to the latter events, the newsroom tried to approach coverage in a unified way, to ensure that coverage was diversified, newsworthy, and spread throughout the month. However, when it came to Pride events, the newsroom was deviating from its typical editorial review process, and many reporters were beginning to go cover stories about Pride festivals as soon as they heard that the event was taking place—without discussing with the rest of the newsroom whether the story ought to be covered, whether it was duplicative of another story that had recently aired, or whether some unique aspect of the story could be explored in a way that highlighted the story's overall newsworthiness. Tang was also worried that the volume of Pride stories being covered by WOOD-TV news staff was alienating some of the station's more conservative viewers.

On the morning of June 13, 2023, Tang shared his concerns with his Assistant News Director, Amy Fox. He explained that he wanted to ensure that any Pride‑related reporting included appropriate historical context and that the newsroom was approaching the topic consistently. To address these concerns, he asked Fox to draft an email to the newsroom. Fox did so and then shared her proposed email with Tang. Tang added a few more lines to the email—including a directive for reporters to "get both sides of the issue" when covering Pride events—and told Fox to send the memo to all staff, which she did….

Many coworkers opposed the memo, and some leaked it to outside media outlets, which reached out to Nexstar for comment. Fox and Tang were eventually fired, and Nexstar released two statements that were then quoted by other media outlets:

[1.] Diversity, equity, and inclusion are among Nexstar's core values. Our local TV stations are expected to cover and report the news of the day in an expansive and inclusive fashion, consistent with these values. We're looking into the situation at WOOD-TV, as the communication regarding the station's coverage of PRIDE month activities in the area is not consistent with Nexstar's values, the way we cover the news, or the respect we have for our viewers. We will take appropriate action as necessary to address this situation, and apologize for offending members of the LGBTQ community and WOOD-TV's viewers….

[2.] We can confirm that WOOD-TV made changes to its newsroom leadership team to ensure its ability to continue providing outstanding local news coverage and service to the Grand Rapids community and surrounding area. As these are internal personnel decisions involving matters of personal privacy, we will decline further comment.

"Nexstar's communications director, Gary Weitman" also responded to media queries by saying, in response to a query about whether the firings were "a result of the investigation into the memo," "I think that's a fair assumption … but again not attributable."

The court concluded that Tang and Fox had adequately alleged that statements about them were untrue:

Nexstar's theory seems to be that the only potentially untrue statement that the plaintiffs can point to is Nexstar's statement that "the communication regarding the station's coverage of PRIDE month activities in the area is not consistent with Nexstar's values, the way we cover the news, or the respect we have for our viewers." However, according to Nexstar, there is no question about the truthfulness of this statement because Nexstar's corporate leadership team is the only group of people that can define what Nexstar's values are and because that leadership team has concluded that the memo was not in line with those values….

There are two problems with this theory. First, the record contains evidence from which a reasonable jury could conclude that some members of Nexstar's leadership team did believe the memo aligned with Nexstar's values. Most significantly, Julie Brinks—the plaintiffs' direct manager—indicated numerous times that she believed the memo was in line with Nexstar's journalistic standards, that it did not discriminate against anyone, and that it was being misinterpreted by some members of the news staff. Because Julie Brinks was the person responsible for conveying to the plaintiffs how WOOD-TV was supposed to report the news, a reasonable jury could find her beliefs about the memo and about Nexstar's values and policies especially relevant concerning the question of the statement's truthfulness.

More importantly, though, Nexstar's argument is also flawed because Nexstar fails to recognize that, under Michigan law, a literally true statement can still be actionable. Often, two true statements can be juxtaposed in such a way that they imply an idea that is false, which, under Michigan law, gives rise to a cause of action for defamation. See, e.g., Reighard v. ESPN, Inc. (Mich. App. 2022). Reighard offers a good example of how this type of defamation—often referred to as "defamation by implication"—typically occurs.

The plaintiff in Reighard was the head coach of the women's gymnastics team at Central Michigan University. On February 20, 2019, the university announced that Reighard had been placed on leave and that an investigation was under way. The university did not provide any details about the investigation or the reason for Reighard's leave. Still, an ESPN reporter who had previously authored a book about the Larry Nassar sex-abuse scandal tweeted about the university's announcement in a two-part twitter post. The reporter's first tweet read:

Michigan's attorney general announced today her office is taking over an investigation of John Geddert, the 2012 Olympic team head coach and close friend of Larry Nassar. Several gymnasts have publicly abused [sic] Geddert of physically and mentally harming them.

And his second tweet read:

On the same day as the AG's announcement, Central Michigan said it was putting longtime gymnastics coach Jerry Reighard on leave amid an internal review. No details of the review were shared, but Reighard has a long personal and professional relationship with Geddert.

Read together, the obvious message implied by the tweets is that Reighard was placed on leave in connection with the Nassar scandal. Because every statement contained in each tweet was literally true, however, the reporter saw no need for a retraction. So Reighard sued for defamation…. Because a reasonable jury could have found the tweets' implication—which is that there was a connection between Reighard's administrative leave and the Nassar scandal—to be both false and defamatory, the appellate court held that the claims should [be] allowed to proceed to trial.

The same principle is on display in Hawkins v. Mercy Health Servs., Inc. (Mich. App. 1998). In that case, … [a hospital press release about the death of a patient] stated that "[w]hile the patient was being cared for by two registered nurses and a physician, there appears to have been an inappropriate dosage of medication administered." It also reported that the patient had died. [A] second press release stated that the hospital had "instituted disciplinary action" and that, as a result, "one employee is no longer with the hospital."

The implication of these two press releases, Hawkins argued, is that she was terminated for providing incompetent care to a patient. [She was actually fired for lying about whether she had criticized the doctor in charge of the patient's care. -EV] And the Court of Appeals agreed. It held that a reasonable jury could have found that the implication of the hospital's statements was false even though each part of the statements—taken literally—was, in fact, true. Therefore, it was inappropriate for the trial court to have granted summary judgment to the defendants.

In addition to illustrating the principles underlying a defamation-by-implication claim, Hawkins also touches on another issue that is central to this case: the potential for employers to deflect bad publicity by casting blame on a scapegoated employee during a scandal.

In Hawkins, the hospital was facing intense public scrutiny once it became known that a patient had died after receiving the incorrect dose of medicine. To address that scrutiny, [a team of hospital executives and others] worked together to create a press release that would imply that the hospital had responded to the death by firing the employee who was responsible for it. Outside of that goal, there is no other logical reason to have included details about Hawkins's termination alongside a press release that was otherwise meant to address the patient's accidental death.

The case at hand bears noteworthy similarities to Hawkins. In both cases, the plaintiffs were former employees who alleged that their former employer had defamed them, and in both cases, the result of the defamation was that the company's brand was shielded from harm in the midst of public controversy. Moreover, in both cases, the defamatory statement occurred not because anything the respective employers published was literally untrue, but because of the implication that arose when two statements were placed alongside one another.

In the case at hand, Nexstar's first official statement indicated that the Pride-coverage memo was not consistent with Nexstar's values and that Nexstar would be "taking appropriate action as necessary to address the situation." The second official statement said that Nexstar made changes to the WOOD-TV newsroom leadership team in order to continue providing "outstanding local news coverage." And when a reporter from CNN reached out to ask Weitman whether Fox and Tang, specifically, had been fired as "a result of the investigation into the memo," Weitman responded by saying, "I think that's a fair assumption … but again not attributable."

Weitman later confirmed that it was a "good thing" that CNN was connecting the memo to the terminations of Fox and Tang. Based on this evidence, a reasonable jury could reach the conclusion that Nexstar was deliberately spreading the message that Fox and Tang are anti-gay in order to deflect public outrage away from the company and towards Fox and Tang.

Of course, whether the evidence in the case at hand is actually sufficient to establish that Nexstar did defame Fox and Tang in an attempt to protect its own brand is a question of fact for the jury to decide. The Court's only role, at this stage, is to determine whether a reasonable jury could return a verdict for Fox and Tang on this record. Having reviewed the record, the Court concludes that a reasonable jury could return such a verdict with respect to the defamation claims….

The case did go to a jury, and the jury concluded that defendants did not defame plaintiffs, presumably because the statements weren't sufficiently damaging to plaintiffs' reputations (the jury verdict forms weren't specific on the reason). But it concluded that defendants did place plaintiffs in a "false light," which requires a showing that the statements "were untrue and … would be highly offensive to a reasonable person," and that defendants knew the statements were untrue or were at least quite likely untrue. On that theory, Tang received $1.29M in compensatory damages plus $300K in punitives; Fox received $1.8M in compensatory damages plus $500K in punitives.

Tang and Fox also received $93K each for violations of Michigan's Employee Right-to-Know Act. That Act makes it illegal to "'divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party' without first providing the employee with written notice that such information is being shared"; plaintiffs alleged that Nexstar had "notif[ied] third-party news outlets about disciplinary action that was being taken against  Fox and Tang without first notifying them of such disclosures."

Nancy A. Temple (Katten & Temple LLP) represents Fox; Todd Knecht represents Tang.

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Plaintiff has been a licensed attorney in Florida since 2006 and serves as the president of the residential homeowners' association ("HOA") in the Stillwater Lakes Subdivision ("SLS") where he resides.

On April 14, 2024, Plaintiff was arrested by the Palm Bay Police Department ("PBPD") and charged with criminal mischief and grand theft. His arrest stemmed from a probable cause affidavit (the "Affidavit") which stated the following:

On 04/14/2024, I Ofc. Barraza #158 and FTO Marcum #244 responded to a suspicious incident at Stillwater Lakes. The incidence occurred on the south side of the lake in Stillwater Lakes Subdivision, belonging to the HOA, not the defendant.

There were 3 juveniles' victims that were fishing on the property. The juvenile victims stated a man, later identified as Kyle Patrick Tate (The defendant), approached them with a firearm telling them to get off his property. Kyle willfully deprived the juveniles of their property and threw it into the woods, damaging it. The property included:

• Fishing reels and rods: $1900
• Tackles boxes containing fishing lures: $150
• Cast nets: $150

In addition, Kyle took one of the juvenile's phones which remains unrecovered. (Approximately $1500)

Based on the above information Kyle did deprive the victims of their property by taking the cell phone, and willfully and maliciously damaged the fishing equipment (3 fishing poles, fishing tackle) he was placed under arrest for Criminal Mischief (above $1000) and Grand Theft. Kyle was taken into custody and later turned over to the Brevard County Jail.

On May 2, 2024, Defendants published an article reporting on the incident with the headline: "Florida HOA president pulls gun on kids fishing on property: affidavit." The article reported the details in the PBPD Affidavit, acknowledging that the children involved (which it identified as being aged 7, 10, and 15) did not live in the subdivision and that they were fishing on property that belonged to the HOA, not Plaintiff. It also included quotations regarding the incident from one of the children's (the 10-year-old's) mother[:] … "'A gun should've never been pulled on them,' said the mother of the 10-year-old-child, who asked not to be named in this article. 'It was startling. He's still super shaken up, knowing that on a daily basis we have to drive by this subdivision where this man lives.'" …

Later that day, Defendants' national network published a similar article before their local TV affiliate broadcast the story on its evening news program as a "DEVELOPING STORY" and "BIG STORY" (the "2024 Broadcast"). The broadcast displayed Plaintiff's booking photograph along with a chyron reading: "BOOKING IMAGE/ATTORNEY ACCUSED OF APPROACHING KIDS WITH GUN, THROWING STUFF INTO WOODS[.]"Another on-screen banner, which appears only during the broadcast video embedded on the article website, read: "HOA president pulls gun on kids: officials[.]"Some versions of this banner include the qualifier, "allegedly."

On June 17, 2024, the state attorneys' office filed a Notice of No Information, declining to pursue charges against Plaintiff over the SLS incident.. On October 6, 2025, Plaintiff's arrest and all associated court and arresting records were ordered expunged pursuant to Fla. Stat. § 943.0585 (which allows eligible individuals to petition a court to expunge criminal history records when charges are abandoned).

On April 3, 2026, Plaintiff served Defendants with statutorily-required pre-suit notice which identified his claim that their reporting was false and defamatory and demanded, among other redress, its retraction. In response to Plaintiff's notice, on April 10, 2026, Defendants broadcast a "STORY UPDATE" regarding Plaintiff's arrest and the SLS incident (the "2026 Broadcast"). In this update, Defendants referred to their original reporting and noted Plaintiff's April 3rd notice letter before acknowledging that, upon further research, the case had been expunged. They also noted that they had reached out to Plaintiff's attorney for further clarification but had received no response. The 2026 Broadcast did not mention the words "gun" or "firearm."

The FAC [First Amended Complaint] contends that Defendants' reporting in their published articles and in the 2024 Broadcast was inaccurate and defamatory because it repeated allegations that he was carrying a firearm despite the fact that he was not charged with any firearms-related offenses. Plaintiff argues that the only source for the firearm allegation was "a single Probable Cause Affidavit narrative attributed to the juvenile complainants and supporting no firearms charge." He likewise insists that the 2026 Broadcast "was inadequate as a corrective publication and was itself defamatory by implication and omission" because it did not include express reporting that there were no firearms charges involved and otherwise failed to correct deficiencies he perceived….

Defendants have "a qualified privilege to report accurately on information received from government officials." "The privilege extends to the publication of the contents of official documents, as long as the account is reasonably accurate and fair." A "report may be covered by the privilege even if it omits details or is not as precise as technical or scientific reporting." In [other] words, the press may exercise "editorial discretion in what to publish."

Plaintiff argues that Defendants are liable for defamation because they reported that he "pulled a gun" on three children in the 2024 Broadcast (and the associated published reporting), instead of using the Affidavit's language that he "approached them with a firearm" (despite acknowledging in the FAC that the articles do use those exact words in some places). He says that "[p]ointing or drawing a gun on a child" is conduct covered by aggravated assault crimes for which he was never charged. Indeed, Plaintiff avers that Defendants "knew th[is] difference" and deliberately reserved this terminology for the headlines and the 2024 Broadcast—presumably to attract attention (although he does not explain how their knowledge of the elements of an aggravated assault charge informed their diction). {This is but one of several indications that Plaintiff's brief is primarily the product of artificial intelligence. See also Doc. 46 at 4-5 (Plaintiff's one-paragraph "argument" about the fair report privilege is meaningless).}

Crucially, however, Plaintiff does not dispute (nor provide any alternative explanation for the fact) that he "approached" a 7, 10, and 15-year-old "with a firearm telling them to get off his property." Plaintiff acknowledges that he spoke to the children and has never denied that he was holding a firearm when he did so, he simply avers that he "did not approach any child in any improper, threatening, or predatory manner." But then, Defendants did not report that he did any of those things either—though the Affidavit would likely support such reporting. See Doc. 27-1 at 2 (describing a man approaching small children "victims" with a firearm to accuse them of trespassing while "willfully depriv[ing]" them of their property, throwing their fishing poles in the woods, and "maliciously damag[ing]" them). {Plaintiff's contention that young, unaccompanied children would not feel inherently threatened by a strange man approaching them with a firearm (pointed at them or not) has no basis in reality—particularly where the Affidavit describes that man as "maliciously" damaging those children's property. And the fact that the state of Florida declined to press charges against Plaintiff in no way serves as grounds to distort the undisputed facts.}

Not only was Defendants' reporting unquestionably an accurate and fair account of the facts described in the Affidavit, but it was important, newsworthy information of significant value to the local community. Plaintiff's attacks on the obvious applicability of the fair report privilege echo the frivolity of his FAC.

First, the "substance or gist" of Defendants' reporting plainly "conveys essentially the same meaning" as the information reported in the Affidavit. {No amount of argument from Plaintiff can change the fact that the Affidavit goes well beyond simply listing his charges; it tells a story—a story which was accurately reported by Defendants. Compare Doc. 27-1 (Affidavit stating that Plaintiff "approached [3 juveniles] with a firearm telling them to get off his property") to Doc. 46 at 18 ("That Mr. Tate was charged with theft offenses does not make true the headlines that he pulled a gun on children.").}

Second, Plaintiff's quibble with the plurality of the words, "officials" and "court docs," is not only substantively misguided (booking photos are indeed part of the "court documents" and the involvement of more than one official supports Defendants' use of the plural), but it is ultimately irrelevant to the fact that Defendants' reporting accurately reflected the official records. And finally, the inclusion of quotations from the mother of the 10-year-old victim has no impact on the applicability of the privilege here—particularly where her comments simply echo the Affidavit in her own words.

{Unsurprisingly, Plaintiff has no legal support for his frivolous contentions. His citation to Heekin v. CBS Broadcasting, Inc. (Fla. App. 2001), for the proposition that the inclusion of the mother's quotations defeated the privilege is exemplary. Not only was this case disapproved of by the Florida Supreme Court [in2 008], but the [Court of Appeal] only reversed the lower court's application of the fair reporting privilege because "there [wa]s nothing in the record to indicate that the trial court compared the broadcast at issue with the public records and found the broadcast to be an accurate description of the records as a matter of law." The Court here already found that Defendants' reporting accurately reflects the official records.

Moreover, it is clear that the mother's comments also accurately reflect the Affidavit—albeit with additional details (ie. the firearm with which Plaintiff approached the children was allegedly a shotgun—which Plaintiff does not contest). Her statement that "[a] gun should've never been pulled on them" merely echoes the Affidavit and provides additional support for the Court's earlier conclusion that Defendants' reporting was accurate. } …

Plaintiff's theory that the 2026 Broadcast was defamatory has even less merit. According to Plaintiff's Orwellian framework, the 2026 Broadcast (which aired solely because of his legal demands) is not covered by the fair report privilege because the Affidavit and original court records are now (again, at his request) "not available to any person or entity except upon order of a court of competent jurisdiction"—[i.e.,] that there is no longer any official record upon which to base Defendants' reporting (or the privilege).

Setting this dubious contention aside, Plaintiff forgets that this Court is of competent jurisdiction to order the divulgence of such records. That is not necessary here, however, because the Court has already seen the Affidavit (which is presently available to anyone else via this case's public docket) and it wholly supports the accuracy of Defendants' reporting. {Moreover, Plaintiff's public posting of the Affidavit with complete disregard for its privacy in this suit further undermines the sincerity and veracity of his claims.}

Having found that Defendants' initial reporting in 2024 was covered by the fair report privilege, they had no obligation to "correct" any inaccuracies in 2026. However, the update they provided honored Plaintiff's request to clarify that the criminal case against him "had been expunged" and that the State Attorney's office had no record of it. Moreover, the (accurate) short summary they provided of their 2-year-old original reporting to preface this new information cannot support a defamation claim simply because Plaintiff had the underlying official records expunged. This is particularly true where the records in question obviously still exist and are presently being publicly exhibited in this record.

{Again, Plaintiff's frivolous argument that Defendants created "an implication" by not explaining that Plaintiff specifically was not charged with or convicted of any firearm offenses is wholly without merit. The "implications" Plaintiff complains of arise only from his decision to handle a simple matter of young children fishing where (maybe) they were not supposed to be by approaching them with a firearm, demanding they leave his property, and—at least temporarily—commandeering and "maliciously" scattering (and damaging) their property.}

As Defendants recognized, "[i]n [Plaintiff's] view, if arrest records are eventually expunged, then a news organization retroactively loses the right to report information in the original arrest affidavit." Fortunately for society, Plaintiff's framework for retrospectively punishing news outlets is not the law. The relevant time for assessing applicability of the fair report privilege is the time of publication. Defendants said it succinctly: "[t]he fact that the state expunged [Plaintiff's] records more than a year after [Defendants] reported on his arrest does not retroactively give rise to a claim for defamation, which must be based on facts as they existed at the time of publication."

Plaintiff does not like the story relayed in the Affidavit, but Defendants' reporting on it was accurate and, therefore, protected by Florida's fair report privilege. Plaintiff's success convincing the state to expunge his record a year-and-a-half later has no effect on that conclusion or subsequent, accurate precis of that story….

I e-mailed plaintiff, who had the following comment on the matter:

I am disappointed with the dismissal. This case is about whether Fox fairly reported a police affidavit, not whether the affidavit's account of the incident was true.

I was arrested for criminal mischief and theft; there was no firearm charge. The State Attorney filed no charges, and the record was later expunged. The affidavit says the children told police I approached them with a firearm and told them to leave. It does not say I pointed or pulled a gun, and I didn't. My proposed amended complaint quotes broadcasts Fox filed with the court: an anchor said I was "accused of pointing a gun" at kids, and a reporter, relaying a mother's account, described a child running from a man "threatening him with a shotgun." Those statements convey a materially different accusation from the one in the affidavit. Fox's article and an on-screen caption, by contrast, used the affidavit's word, "approaching."

I dispute the arrest itself, and claims arising from it are being prepared separately. I didn't put my full account of that day into this case because this case doesn't turn on it. My complaint denies that I pulled, pointed, or threatened anyone with a gun; beyond that, the question here is what the affidavit says and whether Fox reported it accurately. The press can fairly report an affidavit even when the affidavit is wrong. What it can't do is attribute to the affidavit an accusation it doesn't make, as was done here.

I believe the court was wrong to conclude that Fox's reporting conveyed essentially the same meaning as the affidavit. The order never analyzed the broadcast statement that I was "accused of pointing a gun." And while it treated the shotgun as an added detail, it never addressed the broadcast's statement that I threatened a child with it. My opposition identified the broadcast statements, and my motion for leave sought to plead them expressly. The court found amendment futile and denied leave as moot. In describing the motion, it focused on the dispute over the proper Fox entity without explaining why the proposed broadcast allegations would not cure the claim.

I support the press's ability to report official records, but questions are raised about the privilege's limits that matter beyond my case:

First, how much latitude does the privilege allow? A report need not be exact. It must give "a substantially correct account" of the record. In Woodard v. Sunbeam Television Corp., 616 So. 2d 501, 502–03 (Fla. 3d DCA 1993), the court found a discrepancy immaterial because it "would not have had a different effect on the mind of the viewer." The order asked whether Fox's reporting conveyed "essentially the same meaning" as the affidavit, borrowing that phrase from Florida's substantial-truth instruction. See Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1107–08 (Fla. 2008). In a footnote, it reasoned that children would feel threatened by a man approaching with a firearm, "pointed at them or not." That speaks to how the children may have felt. The fair report question is what viewers were told I did, and I think the difference between carrying a gun and pointing one at a child is exactly the kind that changes what a viewer believes happened.

Second, what does attribution protect? "Accused of pointing a gun" is framed as a report of an accusation. But no one accused me of pointing a gun: not the police, who charged criminal mischief and theft, and not the children, as the affidavit recounts what they said. Reporting that the children told police I approached with a firearm would be privileged. Reporting that I was accused of pointing one attributes to the record an accusation it doesn't contain. As early as 1965, in a case about a newspaper's report of a police offense report, a Florida appellate court held that a report may not go "further than a mere report of the news by making charges directly or by inference, insinuation, or assumption, that one is guilty of a crime." O'Neal v. Tribune Co., 176 So. 2d 535, 547 (Fla. 2d DCA 1965).

Third, does the privilege reach sources outside the record? The shotgun account came from a parent's interview, not the affidavit. A Florida appellate court has said that an interview, and a reporter's narration of it, "are not public records," so the privilege "would not apply" to them. Heekin v. CBS Broad., Inc., 789 So. 2d 355, 360 (Fla. 2d DCA 2001), disapproved on other grounds, Anderson v. Gannett Co., 994 So. 2d 1048, 1051 (Fla. 2008). Outside the privilege, repeating another's accusation is ordinarily treated as publishing it. Restatement (Second) of Torts § 578. The order instead found the interview consistent with the affidavit. If consistency with a record extends the privilege to non-record sources, fair report starts to become a truth defense under another name.

I will press forward to the Eleventh Circuit. I welcome any comments from you or your readers.

Deanna Kendall Shullman and Minch Minchin (Shullman Fugate PLLC) represent defendants.

UPDATE 10/14/2026 1:57 pm: Today, the court also held that defendants are entitled to have their attorney fees paid, under Florida's anti-SLAPP statute.

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From Judge Timothy Kelly (D.D.C.) today in CNN, Inc. v. Trump:

On September 18, 2026, President Trump posted on social media that he was "proud to announce that, effective immediately," he was "banning" CNN, MS NOW, and POLITICO "from the White House." And sure enough, when reporters from those news organizations who hold "hard passes" allowing them to work there showed up the next day, they were denied entry. So Plaintiffs—these three news outlets and three individual hard pass holders who work for them—promptly sued the President and several Executive Branch officials, alleging that Defendants were violating their rights under the Fifth and First Amendments. They also moved for a temporary restraining order restoring their hard passes, which the Court granted. The Court found, under Sherrill v. Knight, 569 F.2d 124, 130–31 (D.C. Cir. 1977) and subsequent precedent, that Plaintiffs were likely to succeed on their claims that their hard passes were revoked without due process required under the Fifth Amendment, were likely to suffer irreparable harm without interim relief, and that the balance of the equities and the public interest tilted in their favor.

Now before the Court is Plaintiffs' motion for a preliminary injunction. The Court will grant that motion as well, finding that Plaintiffs are likely to succeed not only on their due process claim, but also on their two First Amendment claims. Still, no one should interpret the Court's decision to suggest that President Trump's concerns about accuracy and fairness in the media's reporting are unfounded, or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed. That said, for the reasons explained below, the Court will extend the relief it already ordered, which will continue to preserve the status quo while this case proceeds.

Unlike the decision granting the temporary restraining order, which was based only on plaintiffs' Due Process Clause rights, this decision also rules in favor of plaintiffs on First Amendment grounds. An excerpt from the court's conclusion that the Administration likely unconstitutionally retaliated against plaintiffs based on their speech:

"[T]he First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech." The government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech." And even "ordinarily permissible exercise[s] of discretion may become a constitutional deprivation if performed in retaliation for the exercise of a First Amendment right." …

[I]t is likely that President Trump's revocation of Plaintiffs' hard passes is the sort of action that would deter a reasonable reporter or news organization from publishing stories to which he objects. The revocation of Plaintiffs' hard passes matters a lot as to how, whether, and to what extent they can do their jobs. As Plaintiffs attest, a hard pass is crucial to covering the White House because it allows reporters "immediate, unescorted access to the areas of the White House complex designated for the press." Without hard passes, Plaintiffs would miss the newsworthy events that often happen at the White House with "little or no notice." Indeed, the effect on Plaintiffs' ability to do their jobs is so significant that in Sherrill and Karem [the key D.C. Circuit precedents as to hard passes and the Due Process Clause] the D.C. Circuit characterized the loss of a hard pass without adequate process as implicating a separate constitutional interest. And if a one-month suspension from the White House grounds is "an eon in today's news business," then it is likely that the open-ended ban here would chill a reporter's work.

President Trump's own comments suggest that he intended the revocation of Plaintiffs' hard passes to alter their reporting on him, bolstering the case that his action here is sufficient to deter a reporter of ordinary firmness from reporting in the same way she had before. After explaining that he excluded Plaintiffs from the White House because they "purposely write negative news … to try and diminish the Republicans and a Republican administration," President Trump remarked that he is prepared to take "the ban … as far as you can," but that he would "love it" if they "could straighten themselves out." …

Defendants also rely on an out-of-circuit case to argue that President Trump's decision to revoke Plaintiffs' hard passes and ban them from the White House grounds is insufficiently chilling to meet the second element of retaliation. In Baltimore Sun Co. v. Ehrlich (4th Cir. 2006), Maryland's governor prohibited anyone in that state's executive branch from speaking to a reporter and a columnist at a specific newspaper because his press office felt "that currently both are failing to objectively report on any issue dealing with [his] Administration." The Fourth Circuit found the directive at issue—which "select[ed] among reporters when granting interviews or providing access to nonpublic information"—"a pervasive feature of journalism" and "so commonplace" that to allow a retaliation claim to proceed would "plant the seed of a constitutional case in virtually every interchange." …

When President Trump first declared that he was "banning" Plaintiffs from the White House, he said he was doing so "as a result of their constant 'reporting' of 'FAKE NEWS.'" He wrote that Plaintiffs "shouldn't be able to constantly write or report FICTION and LIES when they're covering the President of the United States, the Trump Administration, or the United States of America." The next day, when asked about whether there was any "particular reason" for the ban, he responded: "No … it's really just cumulative stories over the last two years…. [T]hey purposely write negative news. And they do that because they want to try and diminish the Republicans and a Republican administration. And honestly, we've done a fantastic job. Look at the numbers, look at the economic numbers. We have more money coming into our country today than ever before." His posts on September 21 also focused on "Fake News," and how Plaintiffs had "trivialize[d]" and "demean[ed]" his accomplishments, including that he had won re-election in a "LANDSLIDE." His subsequent comments about the ban, including his interview with Time Magazine, again focused on his view that Plaintiffs had failed to give him proper credit for his achievements, including winning re-election in 2024. "If I do the finest thing, if I found the cure to cancer, they would say, 'Why didn't he move quicker?" …

Defendants respond by arguing that, notwithstanding President Trump's other grievances with them, Plaintiffs have failed to show causation because President Trump or some other official "would have reached the same decision … even in the absence of the protected conduct." Defendants argue that their "alternative ground" for revoking Plaintiffs hard passes is Plaintiffs' failure to "maintain minimum professional journalistic standards by publishing classified and national security information." …

[But f]irst, there is no evidence in the record that President Trump made the decision to revoke Plaintiffs' hard passes on national security grounds from the get-go, nor at any time has he directly stated that national security was the reason for his decision. When he announced the ban with his post on September 18, he did not mention national security. When he was asked later that day about the "particular reason" for his action, he did not mention national security. And while it is true, days later, that he used the phrase "national security" in subsequent social media posts about the ban, that expression appears to have been simply another way for him to describe Plaintiffs' alleged inaccuracies and unfairness in their reporting about topics like his achievements or electoral success. All this suggests that "national security" was merely a post-hoc justification for the decision, which greatly undermines the idea that President Trump "would have"—not "could have"—taken the same action in the absence of Plaintiffs' protected speech, even if it is not dispositive on that point.

Second, Defendants point to the September 22 letters sent to Plaintiffs as evidence that President Trump or another official would have taken the same action for national security reasons, even apart from Plaintiffs' protected speech. Those letters, sent four days after the ban was announced, lay out a case for revoking Plaintiffs' hard passes based on alleged violations of "the standards of professionalism and decorum expected of those given access to the White House Complex," including "trafficking in verifiable falsehoods about national security and other issues," and "publishing sensitive or classified information." But the letters hardly move the needle on this point. The letters appear to conflate concerns about otherwise protected speech ("trafficking in verifiable falsehoods about … other issues") with national security concerns….

Third, Defendants try to make their case with each of the September 22 letters' "non-exhaustive list of reporting incidents," associated with each news organization, "including those that have threatened national security and/or spread falsehoods." They also rely on the Declaration of Kingsley Wilson, Press Secretary for the Department of Defense, now also known as the Department of War. These too come up short for Defendants' purposes.

In the Declaration, Wilson lays out how the publication of classified and sensitive information can undermine national security. She describes how the Department of War decided to make a change in how reporters access the Pentagon to try to combat the publication of such information. She also describes how, in her view, that policy—whatever its details (they are never spelled out)—has been successful. The problem is that Wilson's declaration says little to nothing about President Trump's decision to revoke Plaintiffs' hard passes, or anything about White House press practices or operations. Wilson states that "it is reasonable" to expect similar results from the White House's implementation of a similar policy, but she does not purport to know much about the White House or the President's decision here. Thus, it matters little that even if, after discussions with people who work there, she thinks that the decision "would be effective in reducing the amount of information that is published that undermines national security." She also attests—in conclusory fashion—that based on three reporting incidents memorialized in the September 22 letters, the three media organizations here have demonstrated a "willingness" to publish sensitive information relating to national security—and more specifically, the security of the White House, the President, and other senior officials. But she offers no further specifics.

Viewed in light of the whole record, neither the September 22 letters nor the Wilson Declaration suggest that President Trump would have revoked Plaintiffs' hard passes and banned them from the White House even in the absence of the sort of reporting about him that he criticized when he announced the ban. They do not suggest that a ban based on national security concerns was in the works before President Trump made his announcement.

The "reporting incidents" described in the letters stretch as far back as a year and a half. And to repeat, one of the reporters here had her hard pass renewed six months after publishing a story in January 2026 titled "Inside Plans to Rebuild the 'Top-Secret' Bunker Beneath the White House East Wing." Moreover, even accepting Defendants' claims that these incidents damaged national security in some way—a proposition that, as discussed below, they have not really tried to support with evidence here—such reporting is commonplace, for better or worse. Finally, it seems likely that if President Trump or another official would have banned Plaintiffs from the White House even in the absence of their protected speech, Defendants would not have had to scramble to make their case with unsigned letters and a declarant who does not even work there.

As the Supreme Court explained in considering the government's explanation in a different context, the Court is "not required to exhibit a naiveté from which ordinary citizens are free." Freed from such a naiveté, it is not hard to conclude that President Trump likely banned Plaintiffs from the White House because he believes that their reporting is generally inaccurate and biased against him. For that reason, all told, Plaintiffs are likely to succeed on their First Amendment retaliation claim.

And for similar reasons, the court also concluded that the Administration's actions were likely unconstitutional viewpoint discrimination in a nonpublic forum (a conclusion that is consistent, I think, with the D.C. Circuit's precedents on the matter):

For all the reasons explained elsewhere, it is likely that Plaintiffs were selected by President Trump for revocation of their access to the White House press area because he believes their coverage of him and his administration is generally inaccurate and biased—in other words, it was "an effort to suppress the speaker's activity due to disagreement with the speaker's view"—rather than to vindicate any other purportedly "compelling governmental interest," including maintaining professional standards for journalists or protecting national security.

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

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When Judge Eric Eighmy had courthouse officers lock two children in holding cells because they refused to leave with their mother following a custody hearing, he violated their clearly established Fourth Amendment rights….

Bart Rockett and Kami Ballard divorced in Missouri, but initially stayed together to give their two kids, who were "aspiring stars," a chance to "make it big" in Los Angeles.  The children found some success in the entertainment industry, including appearing on America's Got Talent, but their parents eventually split up.

Ballard filed a petition for sole custody that landed on Judge Eighmy's desk. During a hearing several months later, the children waited outside the courtroom while their parents tried to work it out. They agreed on primary custody for Ballard, with Rockett responsible for them at the beginning of each month and "during TV pilot season."

Once the hearing was over, however, neither child was willing to leave with her. With an argument unfolding in the lobby of the courthouse, Judge Eighmy walked over, introduced himself to the children, and told them to follow him to a conference room. Once there, he informed them that they had no choice but to leave with her. A youth counselor then reinforced the point by telling them that they "ha[d] to listen to the judge." The children would not budge, even after the judge mentioned that the other option was foster care.

Frustrated, Judge Eighmy had the children follow him again, this time to a waiting area in the courthouse's juvenile division. Once there, he told someone to "[k]eep an eye on" them to "make sure they [did not] go anywhere." After disappearing for a few minutes, he led them down a hallway to two holding cells. A second threat to place them in foster care made no difference, so he had a juvenile officer "lock them up." Before they entered the cells, the officer patted them down and ordered them to remove their socks and shoes. Judge Eighmy stood by as the officer locked the doors behind them.

With the children in their separate holding cells, Judge Eighmy took a seat in a nearby office. After what "felt like forever," the officer opened the cell doors for Judge Eighmy, who asked them one more time whether they would leave with their mother. This time, they both nodded yes, so he let them go. From start to finish, the time spent in the holding-cell area was between twenty and forty minutes.

Following these events, Rockett sued in federal district court for, among other things, a violation of the children's Fourth Amendment rights…. [T]he jury awarded the children $5,000 each on their Fourth Amendment claims. From there, the district court declined to reduce the verdict and added $326,637.22 in attorney fees….

The procedural posture is a bit complicated, but the court denied both judicial immunity (based on an earlier panel decision on the issue) and qualified immunity:

Judge Eighmy violated the Fourth Amendment only if he seized the children and did so unreasonably. Locking the children up after the custody hearing was both….

Not every seizure … violates the Fourth Amendment. To the contrary, "[ ]reasonable" ones, like lawful arrests supported by probable cause, do not. But here, Judge Eighmy did not have "probable cause to believe that [the children had] committed" an offense, much less one that justified placing them in a holding cell. Rather, their only misdeed was one every parent knows well: resisting authority. Even in the context of legal-custody proceedings, refusing to leave with a parent is not a jailable offense. Nor were there "exigent circumstances" arising out of danger to themselves or others.

We have no doubt that Judge Eighmy believed he was acting in "good faith," and possibly even in the children's best interests, by detaining them. But good faith in the Fourth Amendment context is about reasonable reliance, either on binding appellate precedent or a warrant issued by a "neutral magistrate." Neither was present here. No case allows a judge to detain children in a holding cell when they refuse to leave with a parent. And a custody plan is no substitute for a warrant. In short, rough justice does not trump the Constitution….

The law in this area was also "clearly established." "[I]t would have been sufficiently clear [to] every reasonable official," Judge Eighmy included, that locking up two children for refusing to follow directions violated the Fourth Amendment. As we put it over a decade and a half ago, long before the events in this case, "[i]t is clearly established that a warrantless arrest, unsupported by probable cause, violates the Fourth Amendment." …

A reasonable judge should have known better. As we said the first time around [i.e., the first time the case went up on appeal], criminal contempt was off the table because the children were neither parties to the custody case nor present inside the courtroom. Nor could the power to punish a party for violating an injunction have provided the justification, given that Judge Eighmy never issued one….

And here's an excerpt from the 2023 decision denying judicial immunity (a separate question from qualified immunity):

Judicial immunity has been around a long time. See Yates v. Lansing (N.Y. Sup. Ct. 1810) ("The doctrine which holds a judge exempt from a civil suit or indictment, for any act done, or omitted to be done by him, sitting as judge, has a deep root in the common law."), aff'd (N.Y. 1811). In England, it served to insulate common-law judges on the King's courts from their rivals on other courts.

One of the earliest known examples involved a judge who presided over a murder trial. After it ended, he was dragged into a rival court and charged with conspiracy for his role. The prosecution ended, however, when the court recognized that the judge was "immune from prosecution … for [his] judicial act[]." …

As broad as the rule seemed to be, two exceptions narrowed its scope. The first was that judges could still be prosecuted for out-of-court "conspirac[ies]." That is, like any other citizen, judges could be haled into court for any illegal acts they committed outside the courtroom. The second was that, when judges "exceeded their authority" by considering a matter "not within their jurisdiction," their actions were … "without jurisdiction." Acting without "power and authority" eliminated the shield of judicial immunity.

As judicial rivalries began to wane, including in the American colonies, the power-and-authority rationale for judicial immunity did too. The focus shifted to protecting judicial independence: allowing judges "to act upon [their] own convictions, without apprehension of personal consequences." See Pierson v. Ray (1967) (explaining that judges "should not have to fear that unsatisfied litigants may hound [them] with litigation charging malice or corruption").

Judicial immunity continues to apply today, not only in prosecutions …, but in civil-rights actions brought under 42 U.S.C. § 1983…. The exceptions remain largely the same too. Judicial immunity can be "overcome in only two sets of circumstances": (1) when a judge takes "nonjudicial actions"; and (2) when the action is judicial, but is done "in the complete absence of all jurisdiction." …

On one end of the spectrum [of judicial action to nonjudicial action], the classic example of a judicial act is "resolving disputes between parties who have invoked the jurisdiction of a court." Other related acts qualify too, like holding litigants "in contempt," and issuing "search warrant[s]."

But those acts also have their limits. There is no doubt, for example, that judges can "direct[] police officers to bring counsel in a pending case before the court," but they cannot order the officers to beat them with their nightsticks along the way. Nor can judges wake up one day and decide to spontaneously issue a search warrant against a nosy neighbor or a political rival.

Like these examples, Judge Eighmy's decision to personally escort the kids to jail took what would otherwise be a judicial act too far. Judges have the authority to order an officer or a bailiff to escort an unruly litigant to jail. They can also pull the parties into a conference room to discuss what just happened in court.

Judge Eighmy crossed the line, however, when he personally escorted the kids to jail, stood there while they removed their clothes and belongings, and personally came back an hour later to release them. For one thing, the children were not even present in the courtroom, so he could not hold them in contempt for "[d]isorderly, contemptuous or insolent behavior." For another, judges do not do double duty as jailers. So even assuming Judge Eighmy could have ordered someone else to take the kids to jail, he could not put them there himself.

It is no answer that Judge Eighmy believes he was exercising his contempt power. To be sure, absolute immunity is available for judges who hold a litigant in contempt even when they are "not in [their] … robes, … no[r] in the courtroom itself." But here, the children were never parties, they never stepped foot in the courtroom, and Judge Eighmy personally locked them up himself. We have been unable to find any case that extends judicial immunity so far.

Judge Eighmy fares no better with his other argument: that Missouri law allows judges to enforce child-welfare statutes informally. Without question, police officers can take children into custody if they are behaving in a way "injurious to [their] welfare or to the welfare of others." But not judges, who can only order others to "[t]ake charge of children before and after" a juvenile hearing. The point is that judicial immunity is unavailable because what Judge Eighmy did is not "a function normally performed by a judge." …

Thanks to James Creigh for the pointer.

The post No Immunity for Judge Who Locked Children in Holding Cells in Custody Case appeared first on Reason Magazine.

Our peer-reviewed Journal of Free Speech Law, which is now five years old, has published over 150 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), Stuart Benjamin (Duke), Andrew Koppelman (Northwestern), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.)

The articles have been cited so far in 11 court cases, over 2000 articles (using Google Scholar counts), and at least 100 briefs. And note that all the articles have only had five years or less to attract these citations.

I expect that many authors are planning to submit articles on free speech to the usual law reviews when the submission cycle restarts in August. But if you submit exclusively to us before that, we will give you an answer within 14 days; and then if you'd like to have it published quickly, we can publish it in within a few months, if it's sufficiently clean and cite-checked by your research assistant. This means your article can be published by us, if it's accepted, almost a year (or more) before it would be published by the law journals.

Of course, also please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.

All submissions must be exclusive to us, but, again, you'll have an answer within 14 days, so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:

• Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it's the first article to discuss how case X and doctrine Y interact), please let us know.
• Please submit articles single-spaced, in a proportionally spaced font.
• Please make sure that the Introduction quickly and clearly explains the main claims you are making.
• Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go).
• Each article should be as short as possible, and as long as necessary.
• Like everyone else, we like simple, clear, engaging writing.
• We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.

We publish:

1. Articles that say something we don't already know.
2. Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise.
3. Articles dealing with speech, press, assembly, petition, or expression more broadly.
4. Generally not articles purely focused on the Free Exercise Clause or Establishment Clause, except if they also substantially discuss religious speech.
5. Articles about the First Amendment, state constitutional free speech provisions, federal and state statutes, common-law rules, and regulations protecting or restricting speech, or private organizations' speech regulations.
6. Articles about U.S. law, foreign law, comparative law, or international law.
7. Both big, ambitious work and narrower material.
8. Articles that are useful to the academy, to the bench, or to the bar (or if possible, to all three).
9. Articles arguing for broader speech protection, narrower speech protection, or anything else.

The post Submit Your Articles to the Journal of Free Speech Law, Before You Circulate Them to the Law Reviews appeared first on Reason Magazine.

Neil Elavsky expressed his opposition to a social cause that was the subject of an outdoor fundraising event by posting leaflets on the windshields of cars near the event, and he confronted a supporter of the cause after he saw her removing his posted leaflets. He rushed toward her, demanded she return the removed leaflets to him, and grabbed them from her hand when she refused.

After the woman claimed that Elavsky scratched her finger when he snatched the leaflets from her, the state charged him with fifth-degree assault (fear), fifth-degree assault (harm), and disorderly conduct. A jury acquitted him of assault (harm) but found him guilty on the other charges, and the district court convicted him of assault (fear). Because the record contains insufficient circumstantial evidence to prove that Elavsky intended to cause the woman fear of immediate bodily harm, we reverse the assault conviction ….

Up to 5,000 supporters, including the employees of business sponsors, of the National Alliance of Mental Illness (NAMI) gathered at Minnehaha Park in Minneapolis one morning in September 2023 to participate in a fundraising march. An altercation at the event resulted in the state charging Neil Elavsky with fifth-degree assault (fear), fifth-degree assault (harm), and disorderly conduct. At Elavsky's trial, the jury heard evidence of the following account.

Two NAMI supporters, whom we will call "June" and "Lynn," names we have randomly chosen in the interest of their privacy, were employees of a large health-insurance company and arrived early to set up a picnic area and booth to greet their participating coworkers and provide information about their employer. Elavsky, who opposes NAMI's cause, was also present at the event. Elavsky and a companion had previously protested NAMI by distributing windshield leaflets that criticized NAMI and urged readers not to donate to it.

Lynn, who "[does not] agree with what the flyers were stating" and had remembered Elavsky and his companion from their activity at prior NAMI events, had previously complained about the leaflets to NAMI's executive director. She saw Elavsky's companion at about noon distributing leaflets and asked him not to place a leaflet on her car. June saw Elavsky during the event, "shouting very, very loudly" with a "big, full, bold voice."

The event neared its end at about 2:00 p.m., and Lynn saw that her car had been tagged with a leaflet. She asked June to remove the leaflet from her car and from a different person's car. June did so, and she started walking toward a trash can. Elavsky approached June from behind saying, "Give me those" and "That's private property. Give me that back." He appeared to June to be "very agitated" and, according to her, spoke to her in the same "big, bold, boisterous" voice she had heard him using earlier.

June turned toward Elavsky, but she did not hand him the leaflets. Instead, she kept them in her hand at her side. She argued, "It's not private property. It's been distributed. It's public property." Elavsky "lurched" toward June, who recounted, "[A]ll of a sudden I felt his arms going around me, reaching for the flyers that he claimed were private property." At that point, the two were chest to chest, and June could feel Elavsky's breath on her face. She said, "[Elavsky] grabbed my hand and my arm … to grab those flyers out of my hand." She said that he "grabbed the two flyers that [she] had in [her] hand, out of [her] hand, and then he turned to walk away." She acknowledged that Elavsky never shoved, hit, or raised his arms toward her.

The prosecutor asked June at least five times how or what she felt during her encounter with Elavsky. She answered that she "really didn't have any feelings"; "[k]ind of more of a shock than anything else"; "not understanding why this gentleman is approaching me like this"; "angry"; "very violated." Even after the prosecutor clearly tried leading June to the answer he was fishing for, with, "[June], as far as being fearful, did you feel fear at that moment," June still did not say that she feared Elavsky would harm her during the incident….

The court held that there was insufficient evidence that Elavsky acted "with intent to cause fear in another of immediate bodily harm," which was required for the assault-by-fear charge (Elavsky hadn't contested his conviction on a disorderly conduct charge):

The state did not offer direct evidence that Elavsky had this specific intent, relying instead on circumstantial evidence. When an element of a conviction rests on circumstantial evidence, we … [consider] whether the reasonable inferences drawn from the circumstances proved are, as a whole, not only consistent with the defendant's guilt but also "inconsistent with any rational hypothesis other than guilt." Without any deference to the verdict, if we conclude that the circumstances proved allow for a reasonable hypothesis inconsistent with guilt, the evidence is insufficient and we will reverse the conviction….

The state is correct that the circumstances proved reasonably support an inference that Elavsky intended to cause June fear of immediate bodily harm. We can infer that a person intends the natural and probable consequences of his actions. Elavsky's angry demeanor, his leafletting and loud expressions of disagreement with NAMI's cause throughout the day, his lurching approach toward June while demanding that she return the leaflets to him, and his abrupt entry into her personal space to the point of chest-to-chest contact would together allow a reasonable person to infer that he might have specifically intended his actions to cause June to be immediately afraid that he would injure her.

That June did not testify that Elavsky's actions in fact caused her to fear immediate injury—despite multiple failed attempts by the prosecutor—is not a basis for us to conclude otherwise. This is because evidence that the victim felt fear is neither necessary nor sufficient to prove that the defendant intended to cause fear….

But we are likewise satisfied that the circumstances proved also support a reasonable inference other than guilt. Elavsky argues convincingly that one can reasonably infer from the same circumstances that he intended only to retrieve the leaflets from June and nothing more. Elavsky is a committed NAMI protester who distributed hundreds of leaflets on the day of the incident, just as he had in the past.

The uncontradicted testimony established that he had already been loud and angry in his protesting long before he saw June remove the leaflets. He demanded that June return what he described as his property and grabbed them from her after she disagreed about who owned them. June described his actions in reaching around her only as intended "to try to get the flyer[s]" from her.

Elavsky ended his encounter with June immediately after he got the leaflets back, turning promptly to walk away. June then moved in front of Elavsky, directly confronting him about her finger. All the circumstances considered as a whole support the alternative inference that Elavsky's only actual intent was to get the leaflets back from June. This is a reasonable inference of a hypothesis other than guilt.

Judge Lisa Beane dissented:

Elavsky was agitated and shouting when he approached June—a woman he did not know—and demanded that she give him two flyers she was holding in her hand that Elavsky claimed were rightfully his. When she did not immediately do so, Elavsky wrapped both his arms around her body so that their chests were touching, and she could feel his breath on her face. He grabbed her arm, and he forcibly took the flyers from her hand. Although June did not use the word "fear" to describe how Elavsky's conduct made her feel, she described feeling the need to defend herself against his aggressive behavior and feeling unnerved and disconcerted. Elavsky is physically larger than June in both height and weight.

These circumstances, I believe, foreclose the possibility that Elavsky did not intend to cause June fear—that is, they are inconsistent with any reasonable hypothesis other than guilt. Elavsky argues that the circumstances support "the reasonable inference that he exclusively intended to retrieve his flyers without causing fear." Elavsky clearly intended to retrieve the flyers, but the only rational inference from the means he chose to achieve that goal is that he intended to cause June fear of bodily harm.

As the majority notes, we can infer that a person intends the natural and probable consequences of their actions. The natural and probable consequence of an agitated, larger man approaching a smaller woman who is a stranger to him, addressing her in a "very loud" and "intimidating" voice, demanding that she do as he says, and then forcefully grabbing around her body with both arms is that the woman will experience fear of immediate bodily harm. Given Elavsky's actions, it is not reasonable to infer that he intended a different result.

Stated differently, the only reasonable inference regarding Elavsky's intent that can be drawn from the evidence presented at trial, when viewed in the light most favorable to the verdict, is the one the jury drew: that Elavsky acted with the purpose of causing, or with the belief that he would cause, June fear of bodily harm.

The majority responded:

The dissent acknowledges that the circumstances proved demonstrate that "Elavsky clearly intended to retrieve the flyers" but posits that causing June to fear bodily harm was "the means he chose to achieve that goal." We are confident instead that the circumstances proved as we have identified them, or as the dissent has listed them, do not eliminate the reasonable inference that retrieving the flyers was his exclusive objective. The dissent points out that "Elavsky was agitated and shouting when he approached" June. But the evidence showed that he was agitated and shouting both long before the confrontation began and after it ended, strongly suggesting that his agitation and shouting had a purpose wholly independent of causing fear.

The dissent highlights Elavsky's size relative to June's, but his size by itself says nothing about intent to cause fear and nothing in the record indicates that he intended to use his size in any particular way. The dissent especially emphasizes that Elavsky got physically close to June and forcefully and immediately removed the flyers from her—circumstances that most clearly show that he intended to retrieve the flyers from June by force, not that he intended to retrieve them by fear. Again, although one might reasonably infer that Elavsky wanted to cause June to fear bodily harm, we simply disagree with the dissent's conclusion that this is "the only rational inference." …

Erik I. Withall (St. Paul Assistant Public Defender) represents defendant.

The post Interesting Criminal Case on Proving Intent to Cause Fear, Stemming from Confrontation at Protest appeared first on Reason Magazine.

From State v. Amyda, decided Friday by the Iowa Supreme Court, in a unanimous opinion by Justice Edward Mansfield:

In this sexual abuse case, we are asked to decide whether the district court erred in admitting a video. The video graphically shows the defendant abusing the victim. However, there was no chain-of-custody evidence connecting the video to the defendant. The victim was asleep at the time and could not personally attest to the abuse shown in the video. And the defendant claimed "deepfake."

On our review, we conclude that the district court did not abuse its discretion in admitting the video. The video came to the victim's attention about a month after the defendant had been in the victim's bedroom. The video appears to be taken by the perpetrator of the abuse at close range using a cellphone. It shows the victim sleeping, but she testified in detail that she recognized her bedroom, her bed and furnishings, the clothing she had been wearing, her legs and genitalia, and the defendant's tattooed hand—all as they had been that evening.

Collectively, these circumstances were enough to admit the video. And the defendant's mere speculation that the video was a deepfake was not enough to bar its admission….

The court concluded that the video had been adequately authenticated:

To authenticate the video, the State had to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Iowa R. Evid. 5.901(a). According to Iowa Rule of Evidence 5.901, one example of sufficient evidence is "[d]istinctive characteristics and the like." That is, evidence such as a video may be authenticated by its "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances."

We applied this circumstantial-evidence principle in State v. Holderness (Iowa 1980). Holderness, which predated the adoption of the Iowa Rules of Evidence, was a burglary case involving the admissibility of a photograph. There the victim awoke to find that his garage doors were open and some of his property was missing. One of the missing items was a briefcase that contained, among other things, an Instamatic camera. Two hours later a boy in the neighborhood brought by a roll of Instamatic film that he had found. The film was developed. It turned out to have eight photographs the victim had taken recently in the course of his work and two additional photographs. One of those two photographs showed the defendant on his knees in the victim's backyard, near the garage, holding the briefcase partially open.

We held in Holderness that the photograph portraying the defendant with the briefcase outside the garage was properly admitted even though no one could directly confirm its accuracy or testify as to how it was taken. We began our discussion by observing,

Conventionally these foundation elements [for admission of a photograph] are shown by the direct testimony of a person who, although perhaps not connected with the photography, observed the scene and testifies that the picture fairly shows it, or who describes the photographic process employed and testifies it produces accurate pictures. These of course are the easier cases.

The harder cases are those in which direct testimony is not available and the proponent must rely on circumstances to lay a foundation for admission.

This, of course, was one of the "harder cases." … [W]e held [in Holderness] that the photograph could be authenticated based on a series of circumstances. The roll of film had been recovered nearby, the morning after the burglary. The victim had taken the previous photographs on the roll but not the ninth and tenth ones. The victim could identify his boat and his trash-can rack in the photograph in question. He testified that—apart from the presence of the defendant—the scene corresponded to the outside of his garage at the time of the burglary. And the victim further testified that the camera in the past had taken reliable photographs that had never come back modified, altered, or changed.

A few years later, … we … [upheld] the admission of photographs in another case. There the defendant was charged with having committed sexual abuse on three children—two girls and one boy. At trial, a number of photographs depicting the sexual activity were admitted into evidence. Several of the photographs were admitted through the testimony of the two girls. They testified that the defendant, or one of them at the defendant's direction, had taken those photographs. They identified the defendant in the photographs. However, five of the photographs were admitted through the testimony of a detective, who had been neither a photographer nor a firsthand observer. We summarized as follows:

Although the detective was not, like the girl victims, a direct witness to the depicted activities, he had observed the defendant's bedroom where other photographs were taken and testified that the decor of the room pictured in some of the photographs was that of the defendant's bedroom. Moreover, the five photographs in question were graphically similar to the many photographs properly admitted during the victims' testimony.

We concluded that "[t]he detective's testimony about the decor of the room, together with the photographs authenticated by the victims, satisfied the foundational requirements for admissibility of the five photographs admitted during the detective's testimony." …

Turning to the facts of this case, we agree with the district court and the court of appeals that the State presented sufficient evidence to authenticate the video.

The video appears to be taken with a cellphone held in the right hand of the person whose left hand is visible committing sexual abuse. Clara had communicated with Amyda by messaging him that evening; presumably, he would have brought his cellphone to their encounter. Also, Clara fell asleep in her bedroom with Amyda after they both had been drinking; the video shows her face and closed eyes as she is sleeping soundly. Further, Clara identified Amyda's tattooed hand, her bedroom, her bed and pillows, her clothing, and her legs and genitalia in the video. Indeed, the only thing in the video that Clara couldn't personally verify was the abuse itself. Moreover, the video surfaced a little over a month after May 5, and when Clara tried to communicate with Amyda about it, he blocked her.

Amyda argues that "[a]llowing an individual to authenticate a video that portrays an event by simply identifying 'distinctive characteristics' of items in the video, without more, effectively erases any protection that Rule 5.901 provides against the admission of fabricated evidence." But the circumstantial evidence here went beyond just the distinctive characteristics of items in a video. Furthermore, the distinctive characteristics here ranged from the private (Clara's bedroom) to the shockingly private (her genitalia). What third-party fabricator would have access to all that?

As the court of appeals noted, appellate cases from other jurisdictions have upheld the authentication of videos [in such situations]….

We are not oblivious to the risks of video evidence. Like the New York Court of Appeals, we recognize that "most fabricated videos 'leverage' real details from real photos and videos of real places and people, then alter the pieces the person wishes to alter to create a realistic, but manipulated, video." In re M.S. (N.Y. 2026). In In re M.S., New York's highest court ruled, over two separate dissents, that videos of sexual abuse obtained by a self-described hacker and provided to law enforcement well after the events in question—had not been sufficiently authenticated and should not have been admitted in a family court case. But here, by contrast, there are no identifiable circumstances to suggest that the video might be a deepfake.

For all these reasons, we agree that the video was properly authenticated ….

And the court likewise rejected the argument that the video should have been excluded under the so-called "best-evidence rule":

[T]he best-evidence rule … provides, "An original writing, recording, or photograph is required to prove its content, unless these rules or a statute provides otherwise." The rules also contain the following qualification: "A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate."

The State relies on this qualification to rebut Amyda's best-evidence argument. The State maintains that the video here was admissible as if it were the original because Amyda failed to raise a genuine question of authenticity. We agree with the State that Amyda didn't raise a genuine question, only conjecture.

Much of the closing argument made by Amyda's counsel urged the jury to conclude that the video was a deepfake. Yet his advocacy rested on popular culture rather than any of the evidence in the case. The closing argument began, "Is it fake? Is it real? Ladies and gentlemen, we live in the age of artificial intelligence." It continued, "In this state of artificial intelligence, people can manipulate a video to look like whatever they want to look—they want it to look like." Amyda's counsel proceeded to refer to various news stories about celebrities and other people who had been the subject of deepfake videos, including deepfake pornography.

But apart from trying to cash in on the so-called "liar's dividend," Amyda's counsel had little to work with. {The term "liar's dividend" refers to the possibility that public awareness of deepfakes will make it easier to raise doubts about legitimate evidence. See Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. 1753, 1785–86 (2019) ("[A] skeptical public will be primed to doubt the authenticity of real audio and video evidence. This skepticism can be invoked just as well against authentic as against adulterated content.").} The prosecutor countered as follows in her rebuttal argument:

So when [defense counsel] is wa[ ]ving around articles and talking about deepfake porn, that is not evidence, ladies and gentlemen. That is not evidence. What is evidence is what you heard from that stand.

Fake video, imagine someone to make a fake video in this matter would have to know, as [Clara] described, the intrinsic details of her body.

Unfortunately, we had to talk a lot about private matters, right? They had her stretch marks on her legs that she identified. They had her vagina and the unshaven position as she recollected. They had stubble on her legs. They had her hair positioned as such.

They had her exact clothing that she would have been wearing the night she was with the defendant, and even more so, when he parted her labia, you can see that she has coloration down there. They would have to know all those intrinsic details to make up this video. Who would know that?

Accordingly, the district court did not abuse its discretion in overruling Amyda's best-evidence objection. See State v. Christian Church (Del. Super. Ct. 2025) ("The mere suggestion that a video may have been altered does not create such a genuine issue."); Perry v. United States (D.C. 2026) (indicating that the defendant needed to provide "some basis" to think that the Instagram video was an inaccurate reproduction)….

Joshua Henry (Iowa Assistant AG) represents the state.

The post Claiming Video Was "Deepfake" Not Enough to Require Excluding It, Even Absent Evidence of Who Recorded It appeared first on Reason Magazine.

My new essay in Civitas introduces novel research about the understanding of the Establishment Clause in 1868. I dug through recently digitized archives of the Freedmen Bureau. In short, a federal government agency, headed by military chaplains, worked with religious groups to establish schools in the South, and the curriculum in those classes included bible readings and prayers.

Here is an excerpt:

The regulations for Freedmen schools in Texas provided that classes would begin at 9 A.M. and "[t]he morning Exercises will commence with either the singing of an appropriate hymn, or prayer, or the reading of the Scriptures." For Louisiana Freedmen schools, each day, "[t]he opening exercise in every school will be the reading a passage of Scripture or a prayer in place thereof." After prayers, the students would sing "an appropriate hymn or melody." The Freedmen school in Bainbridge, Georgia opened the day by reading one chapter from the Bible. The Freedmen school in Mobile, Alabama opened each day with a "divine service, which exercises consist of reading short selections from the Bible, after which the school repeat[s] the 23rd Psalm." (It begins, "The Lord is my shepherd. . . .") "Then all kneel, when a short prayer is offered by some designated teacher, at the close of which all join in the repetition of the Lord's prayer, when the exercises are concluded by singing . . . " 

In February 1868, a teacher at the Clinton's Freedmen's School in Tennessee reported to the Freedmen's Bureau that "the prayers of the pupils is [sic] encouraging." In October 1868, Dellie Gordon, a teacher at a Sabbath School in Prince George's County, Maryland, wrote to Rev. John Kimball, the Superintendent of District of Columbia Schools. Gordon relayed that she "opened school on Sunday afternoon and recited the Ten Commandments which, the children had never heard before." Gordon added that "with explaining the 2nd chap St. Matthew the afternoon passed very pleasantly." (This chapter discusses Jesus's birth and early childhood.)  . . . 

The purpose of teaching scripture was not merely to promote literacy. The Bureau recognized a close connection between teaching religion and promoting morality among the families of recently freed slaves. In October 1866, the Superintendent of Schools for Alabama wrote that "[e]ffort has been made to supply the moral and religious wants of the freedmen as far as possible" through the donation of 2,000 Bibles from the American Bible Society. The report observed that "portions of the Holy Scriptures find their way to households which, probably, would be reached in no other way." Another report from Alabama explained that "[e]ffort has been made to supply the moral and religious wants of the freedmen as far as possible." General O.O. Howard, the Commissioner of the Freedmen's Bureau, and the namesake of Howard University, was told that teachers "explain[ed] the lessons of morals and christianity, so strikingly presented in every page of the Bible."

The schools also engaged in outright proselytization. Teachers at American Missionary Association schools for Freedmen in Alabama were required to fill out a monthly report with questions about conversion: how many Bibles were distributed? How many families were "engaged in religious services, either by reading the Scriptures, singing, or prayer"; how many "hopeful conversions, if any, during the month"? One report from the Girard Freedmen School reported nine hopeful converts. . . .

The Freedmen schools, which were managed and funded by the federal government, proactively incorporated the Bible into the curriculum. Students began their day with prayer, read from the bible, and teachers were encouraged to proselytize. These actions were viewed as a critical way to develop morality among the freedmen. This history from the Second Founding should inform how the Establishment Clause would have been understood when the Fourteenth Amendment was adopted.

I have published here only a small bit of my research. The full load will come in a forthcoming symposium article. I encourage others to follow this path, and see what else comes up.

The post New Essay: "The Establishment Clause At The Second Founding" appeared first on Reason Magazine.

Such a firing, I think, is illegal under federal antidiscrimination law, though it's possible (but not certain) that BROS may have a First Amendment defense, given the particular job that the woman held.

[1.] The gender identity discrimination precedent: The key precedent here is Harris Funeral Homes v. Stephens, the trans companion case to Bostock v. Clayton County. In those cases the Court held that gender identity and sexual orientation discrimination is sex discrimination, and therefore banned by the Title VII prohibition on sex discrimination. Here's the key part of the logic behind that argument:

[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge.

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision.

Thus, if an employer fires a biological male for presenting as a woman—wearing clothing, makeup, and hairstyles associated with women—that is presumptively illegal because it is discrimination based on sex: The employer would allow biological females to wear clothing, makeup, and hairstyles associated with women, but not biological males, so "the individual employee's sex plays an unmistakable and impermissible role in the discharge decision."

[2.] The same logic carries over directly to race: If an employer fires a white woman for wearing a particular hairstyle, but would allow a black woman to wear the same hairstyle, "the individual employee's race plays and unmistakable and impermissible role in the discharge decision." (Likewise, if an employer fires employees for engaging in interracial relationships—e.g., by firing a black employee for dating a white woman but not firing white employees for dating white women—that is race discrimination, just as firing employees for engaging in same-sex relationships is sex discrimination.)

Now of course some people may well be offended by white women wearing hairstyles that are viewed as traditionally black, just as they may be offended by people whom they view as female presenting as male and vice versa, or by white women dating black men. But concern about customers and coworkers being offended isn't a legally adequate justification for discriminatory rules, even when such offense may lead to tangible loss to the employer.

Note that this is a different question from whether employers can implement a facially "race-neutral policy" that requires hairstyles to "reflect a business/professional image," and that is read as forbidding certain hairstyles (such as dreadlocks) "physiologically and culturally associated with people of African descent." (See EEOC v. Catastrophe Mgmt. Solutions (11th Cir. 2016) (upholding such a policy, precisely because the court viewed it as race-neutral.) Such a policy would apply to all employees, black or white, who wear such hairstyles. The BROS decision appears to have stemmed not from a general view that cornrows look unprofessional, but from the view that cornrows should not be worn specifically by white women (or at least women who aren't black).

[3.] Race discrimination is illegal even for small employers: Employment discrimination based on race (and ethnicity, but not sex or religion) violates not only Title VII, but also the ban on race discrimination in contracting in the federal 42 USC § 1981 statute. Section 1981 applies to employment, including by very small employers, unlike Title VII, which only covers employers with 15 or more employees. (I'm not sure how many employees the Society has; apparently it largely operates through volunteers.)

[4.] Maryland's CROWN Act treats discrimination based on "traits associated with race, including hair texture, afro hairstyles, and protective hairstyles" "includ[ing] braids, twists, and locks" as race discrimination. It's not clear whether the CROWN Act would apply to firing people for supposedly culturally appropriating traits associated with a different race. But it too has a 15-employee threshold, so we can set it aside here, and focus solely on the straight-up § 1981 race discrimination claim.

[5.] Historically, courts have allowed sex-based dress and grooming codes, such as rules requiring men to wear short hair, requiring women to wear makeup, and the like, on the theory that those policies impose "essentially equal burdens on men and women," even if the rules differ for men and women. (This is part of a pattern of allowing "separate but equal" for men and women in certain narrow situations even after that principle had been rejected as to race; the pattern is also visible in the law's tolerating single-sex bathrooms, single-sex sports teams, and single-sex colleges, where it would not do so as to race.) To quote the reasoning in Jespersen v. Harrah's Operating Co., Inc. (9th Cir. 2006) (en banc):

In Frank v. United Airlines, Inc. (9th Cir.2000), we dealt with a weight policy that applied different standards to men and women in a facially unequal way. The women were forced to meet the requirements of a medium body frame standard while men were required to meet only the more generous requirements of a large body frame standard. In that case, we recognized that "[a]n appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment." The United weight policy, however, did not impose equal burdens. On its face, the policy embodied a requirement that categorically "'applie[d] less favorably to one gender[,]'" and the burdens imposed upon that gender were obvious from the policy itself.

This case stands in marked contrast, for here we deal with requirements that, on their face, are not more onerous for one gender than the other. Rather, Harrah's "Personal Best" policy contains sex-differentiated requirements regarding each employee's hair, hands, and face. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders are not facially discriminatory.

We have long recognized that companies may differentiate between men and women in appearance and grooming policies, and so have other circuits. The material issue under our settled law is not whether the policies are different, but whether the policy imposed on the plaintiff creates an "unequal burden" for the plaintiff's gender.

Not every differentiation between the sexes in a grooming and appearance policy creates a "significantly greater burden of compliance[.]" For example, in [an earlier case], this court upheld Safeway's enforcement of its sex-differentiated appearance standard, including its requirement that male employees wear ties, because the company's actions in enforcing the regulations were not "overly burdensome to its employees [.]" Similarly, as the Eighth Circuit has recognized, "[w]here, as here, such [grooming and appearance] policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities." Under established equal burdens analysis, when an employer's grooming and appearance policy does not unreasonably burden one gender more than the other, that policy will not violate Title VII.

I'm not sure that this reasoning survives Bostock and Stephens, which seem to create a much more categorical definition of sex discrimination. To quote the Supreme Court in those cases,

Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it….

Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups…. [A]n employer who intentionally fires an individual homosexual or transgender employee in part because of that individual's sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

The Court in Bostock did say that it wasn't deciding the legality of sex-based "dress codes," but its logic suggests that they are indeed illegal. And post-Bostock cases dealing with sex-based dress codes in public schools have concluded that they do indeed constitute sex discrimination. See Peltier v. Charter Day School, Inc. (4th Cir. 2022) (en banc) (expressly rejecting the pre-Bostock "'comparable burdens' test for sex-specific dress codes"); Doe through Doe v. Rocky Mountain Classical Acad. (10th Cir. 2022) (likewise).

[6.] "Different but essentially equal burdens": But in any event, for BROS to defend itself by arguing that the sex-based appearance code cases apply to race discrimination, it would at the very least have to show that its "appearance standard … imposes different but essentially equal burdens on men and women is not disparate treatment"—i.e., that BROS would forbid black employees from wearing hairstyles associated with whites (or other non-black groups), such as straightened hair for black women.

That strikes me as quite unlikely to be true. And if I'm right, and BROS indeed imposes a "no cultural appropriation" rule only on white employees (or perhaps on non-black employees), then the cases allowing certain sex-based dress codes just wouldn't apply.

[7.] No exception for high-level nonprofit executives: I appreciate the argument that, since organizations often live or die by the goodwill of their customers, donors, and volunteers, they should be able to accommodate those groups' preferences and even prejudices in selecting at least the organization's leaders. Indeed, some antidiscrimination laws—though not § 1981—include some narrow exemptions that can be used to accommodate such preferences, as well as the preferences of the employers themselves. Title VII, for instance, exempts discrimination by elected officials in choosing their non-civil-service "personal staff," "an appointee on the policy making level," or "an immediate adviser with respect to the exercise of the constitutional or legal powers of the office."

Some courts have also held that partners who co-own the employer are not employees for purposes of some federal employment laws. That would generally allow partners to discriminate based on sex, religion age, disability, and similar attributes in expelling partners, forcing them to retire, and the like. (Recall that § 1981 covers all race discrimination in contracting, not just employment discrimination, so race discrimination against partners would still be illegal.)

But there is no such general exemption for high-level managers of a business or a nonprofit: Even CEOs can sue for discrimination, for instance, and so can salaried officers of nonprofits. And outside these narrow exemptions, antidiscrimination law forbids race discrimination even when it stems from the rational desire to accommodate others' preferences.

[8.] Constitutional exceptions: Finally, a last twist that offers BROS a possible defense, though it's not clear that it would work. While § 1981 categorically forbids race discrimination in contracting, there are of course some constitutional exceptions to that:

• A church, for instance, has a First Amendment right to choose its clergy, without constraint by antidiscrimination laws.
• A theater company (including BROS) has a First Amendment right to choose the actors it hires, even if that involves race discrimination.
• Groups' right of expressive association would allow a nonprofit (such as the Boy Scouts) committed to promoting a "straight" lifestyle not to hire gay activists as people who speak for the group (that's the Boy Scouts v. Dale case); likewise, a group committed to opposing interracial relationships would presumably be entitled not to select volunteer spokespeople who are known to be in such relationships.
• Creators' right not to create expression they disapprove of would likely allow them to refuse to create material promoting, say, interracial weddings or interfaith weddings as well as same-sex weddings (that's 303 Creative v. Elenis).
• People's right of intimate association likely allows them to choose their roommates based on race, free of antidiscrimination law.
• People's right to marry and right to sexual autonomy would likewise presumably allow them to choose spouses and sexual partners based on race, even if antidiscrimination law purported to forbid that.

But there is no constitutional right for an organization to choose its employees or partners based on race, and I don't think any court would recognize such a right as to executive directors, either. Nor do I think that BROS can fit within the Boy Scouts v. Dale exception, at least unless it can show that its having an occasionally corn-row-wearing executive director "would significantly affect its expression." ("[A]n expressive association" cannot "erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.") It's also not clear that Dale, which arose as to volunteers covered by public accommodation law, would apply to employees. (Compare Starkey v. Roman Catholic Archdiocese (S.D. Ind. 2020), which declines to apply Dale to employment, with Youth71Five Ministries v. Williams (9th Cir. 2025), which does apply Dale to employment.)

At the same time, the scope of this exception, as to expressive nonprofits such as the Boy Scouts and BROS, is necessarily somewhat vaguely defined, and the executive director does speak for the organization to the public (and to volunteers and employees). The Boy Scouts argument would therefore probably be BROS's strongest defense.

The post May an Employer Fire a White Woman for Wearing Hair in Cornrows? appeared first on Reason Magazine.

Last week two fake documents were sent to Google in an attempt to censor a Times article revealing concerns about an online pharmacy run by an alleged internet spammer. The documents, including an order which purported to be from the UK Supreme Court, were sent to the tech giant in an attempt to get the article removed from its search result.

The "de-indexing" request was submitted in the name of Mason Soiza, 24, the owner of UK Meds, although he denied making the request. It comes amid concerns about how businesses, individuals and law firms are using takedown requests to remove damaging information from searches. At least 75 fake court documents have been sent to Google, according to a US academic….

Mr Soiza, who has emailed The Times to ask for the newspaper to "de-index" the article about him, said he had not created the forged documents or submitted them to Google. He said they were "100 per cent not sent by me" and added that they "look awful".

He said he had hired a company called DeIndex to "clear my name" and offered £6,000 if it succeeded in "removing false information about me online" but he did not know anything about its methods. Someone claiming to represent DeIndex on the company's Skype account said that it had not made any submissions to Google or created the documents.

Now six copyright-based takedown requests (see here, here, here, here, here, and here) have been sent to Google, aimed at getting Google to deindex my post (and other articles about Soiza and some other, unrelated, articles); the claim is that the posts infringe an X post that is completely unrelated to my article. Two other requests (see here and, from last year, here) have sought to deindex some other items about Soiza, but didn't include my post.

It's impossible for me to tell who is responsible for deindexing requests, but I thought it was noteworthy that there was an attempt to vanish those items from search results. As best I can tell, the attempt was unsuccessful.

I e-mailed what appear to be Soiza's new company to ask whether he had a statement on the matter, and got the response that, "We've looked into the matter and don't have a statement to provide at this time."

The post Someone Trying to Vanish Articles About Forged U.K. Court Order Aimed at Vanishing Article About Businessman Mason Soiza appeared first on Reason Magazine.