The Volokh Conspiracy

[Eugene Volokh] "Once the [Rainbow Flag] Cat Is out of the Bag, the Ball Game Is Over"

Eugene Volokh — Mon, 20 Apr 2026 12:01:35 +0000

[No pseudonymity for teacher challenging removal of pride flags from classroom, because his identity had already been disclosed through public records requests.]

From Doe v. Little Miami School Dist., decided Thursday by Judge Matthew McFarland (S.D. Ohio):

Plaintiff is a teacher for Defendant Little Miami School District. For the past four years, Plaintiff has displayed a flag in his classroom that reads "Hate Has No Home Here" and bears several icons, including a rainbow Pride flag and transgender Pride flag. In January 2025, the Ohio Assembly passed H.B. 8, the Ohio Parent's Bill of Rights …. The statute provides parents the opportunity to review any instructional materials that include sexuality content which is defined as "any oral or written instruction, presentation, image, or description of sexual concepts or gender ideology, provided in a classroom setting." In October 2025, the Little Miami School Board passed a policy that adopted the statute.

In February 2026, Defendant David Wallace, president of the School Board, requested that Plaintiff remove his flag, but the principal stated that he would not order Plaintiff to remove it. Plaintiff then drafted an email defending the flag, and the Superintendent of Little Miami School District supported Plaintiff. On February 25, 2026, the School Board voted 4-1 in favor of the flag's removal, pursuant to H.B. 8 and the accompanying district policy. Plaintiff complied with this vote and removed the flag. …

Plaintiff now … seek[s] declaratory judgment that Defendants violated his First Amendment rights in ordering the flag's removal.

The court held plaintiff couldn't proceed pseudonymously:

Generally, "the complaint must name all the parties." Fed. R. Civ. P. 10(a). Therefore, litigating under a pseudonym is disfavored. But, a court may permit a party to proceed pseudonymously where "privacy interests substantially outweigh the presumption of open judicial proceedings." …

Plaintiff alleges that revealing his identity could "invite further reaction within the community and could present a very real risk of harassment and threats." … Plaintiff asserts here that his personal information has already been nonconsensually published online, or "doxed," which he characterizes as a form of harassment. Defendants, though, point out that Plaintiff's own argument cuts against his Motion, because "[a]nonymity at this stage would […] amount to a legal fiction," as his identity is "already in the public domain." In fact, Plaintiff acknowledges that these online publications likely obtained his personal information and communications with the school about the flag "pursuant to a public records request."

The Court therefore agrees with Defendants. Plaintiff's identity has already been publicly revealed, whether or not he consented to such disclosure…. "A plaintiff's interest in anonymity is weakened where anonymity has already been compromised." … Moreover, he claims that his identity and communications are subject to public records requests. Thus, to the extent that Plaintiff fears his identity being involved in public discourse, proceeding under a pseudonym here will not prevent, and in fact has not prevented, the public from discovering his identity.

Furthermore, beyond instances of Plaintiff's name, job title, and photograph being published, Plaintiff has not pointed to any credible threat of harassment or danger that he faced from this disclosure or could face if his name is used in these proceedings. Risk of embarrassment alone is not enough to warrant use of a pseudonym….

The post title is adapted from Gambale v. Deutsche Bank AG (2d Cir. 2004).

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[Paul Cassell] An Important Cert Petition Pending Before the Supreme Court on Section 230 Immunity

Paul Cassell — Mon, 20 Apr 2026 11:30:11 +0000

[The briefing is completed on a cert petition presenting the urgent question of whether section 230 immunizes Twitter's knowing possession and distribution of child sex abuse materials.]

I previously blogged about a cert petition I helped to prepare regarding the scope of section 230 immunity. Last week, the final briefing was submitted to the Supreme Court. In my view, the briefing makes clear that the Court should grant cert on the important issue of whether section 230 immunizes Twitter's knowing possession and distribution of child pornography.

The issue arises through a provision in the Communications Decency Act, which encourages "Good Samaritan" acts to keep objectionable content off the internet. 47 U.S.C. §230(c). The Act states internet platforms are not liable for "good faith" acts to remove such content. Section §230(c)(2)(A). It clarifies that platforms may exercise that editorial control without being "treated as the publisher or speaker." Section 230(c)(1).

In the case at hand, the Ninth Circuit construed the Act to immunize an internet platform's knowing and deliberate decision to keep "child pornography" on the internet—a federal crime so damaging that Congress expressly allows victims to seek civil penalties. (The images are better described as "child sex abuse materials, or CSAM, but we have followed the current legal nomenclature.) In response to repeated alerts that child pornography depicting the minor petitioners (John Doe 1 and John Doe 2) was on its platform, Twitter asked for John Doe 1's ID—verifying that he was a minor. Twitter, in its own words, "reviewed the content" showing coerced sex acts by minors. But Twitter then decided "no action will be taken." The video proliferated—and Twitter profited—until a Department of Homeland Security official intervened.

The victims sued. Twitter claimed immunity. The Ninth Circuit agreed that Section 230 precludes federal civil penalties for that knowing sexual exploitation of children. And our cert petition presented the question of whether section 230's Good Samaritan immunity applies to the knowing possession and distribution of child pornography.

Twitter has now responded to our petition. In its brief in opposition, Twitter characterizes the case as involving its decision of whether to screen such content:

Child pornography is the most serious category of harmful content that platforms encounter—a fact no one disputes and Twitter does not minimize. But that is a difference of degree, not of legal kind. Courts have uniformly applied Section 230(c)(1) to bar claims that seek to treat a website as the publisher of a third party's obscenity, illegal pornography, or other arguably criminal content. See, e.g., Force v. Facebook, 934 F.3d at 59 (content that encouraged terrorism); Barnes v. Yahoo!, Inc., 570 F.3d at 1098 (nonconsensual nude images); Dyroff v. Ultimate Software Grp., Inc., 934 F.3d at 1095 (content facilitating illegal drug sales). Indeed, a foundational premise of Section 230 is that websites hosting third-party content cannot be charged with screening all such content; to hold that offending content of any particular stripe disables the statutory immunity would contravene that premise and expose websites to potential liability simply because their screening has been imperfect in some way.

Our reply argues strenuously that Twitter is mischaracterizing what it did—which was to distribute child pornography, even after it had specifically identified the material as child pornography and knew that the materials were being downloaded by tens of thousands of its customers:

Twitter never contests those knowing criminal acts. Instead, Twitter restates the questions presented, reframing this petition as just another petition about "not removing more quickly allegedly unlawful third-party conduct." Twitter reduces the petition to a dispute about how "swiftly" it acted. Twitter even claims the petition is a poor vehicle because its criminal wrongdoing did no harm.

Try as it might to paint this petition as one about some unknowing publisher, Twitter acted knowingly and deliberately. Those criminal acts led John Doe 1 to consider ending his life. Those criminal acts prompted a DHS official to intercede. Petitioners are still suffering from them. …

This petition is the straightforward vehicle to address the outermost limit of § 230 immunity. This case is not about what steps some internet company should take to monitor content that it is unwittingly hosting. It is about the company's own knowing and deliberate acts. Do federal laws prohibit Twitter from knowingly possessing, distributing, and profiting from child pornography—like everyone else? Or does § 230 put Twitter above the law?

Our cert petition was strongly supported by three excellent amicus briefs. Senator Josh Hawley filed a brief arguing that this case requires Supreme Court review:

Nothing in the text, structure, or history of the Communications Decency Act's Section 230 shields internet platforms that knowingly possess and distribute child pornography. Congress drafted Section 230 to avoid publisher liability without upending distributor liability, which had its own rich common law backdrop. The Good Samaritan carveout in Section 230(c) is narrow and unrelated to any facts in this case. The Ninth Circuit's holding to the contrary represents the most extreme extension yet of Section 230 immunity in the statute's history, and is a perfect vehicle for this Court to rein in the statute's purview to the four corners of its text.

The National Center for Missing and Exploited Children (NCMEC) filed an amicus brief arguing the Ninth Circuit's decision will harm efforts to combat emerging threats to children online:

The Ninth Circuit's decision—holding that 47 U.S.C. § 230 immunizes internet platforms from liability for the knowing possession and distribution of child sexual abuse material (CSAM)—will make it exponentially harder to fight the crisis of online child sexual exploitation. In NCMEC's experience, strong incentives—including the possibility of liability for knowing participation in criminal child sexual exploitation—are essential to ensure an adequate response from internet platforms. Absent the Court's review, the Ninth Circuit's decision will undercut a fragile system that is already overly reliant on voluntary efforts and the variable goodwill of internet platforms.

And Child USA filed an amicus brief arguing that Twitter was invoking an unjustifiably broad reading of Section 230:

Congress never intended Section 230 to operate as a blanket shield for internet service providers ("ISPs"). Its narrow purpose was to prevent ISPs from being treated as the publisher or speaker of thirdparty content. Petitioners' claims fall far outside that protection: they seek to hold Twitter liable for its own misconduct—misconduct that, if proven, reflects knowing participation in and financial benefit from criminal exploitation.

I hope that the Supreme Court grants our petition, presenting an extremely important and recurring issue. Reading federal law as an open invitation for social-media companies to knowingly possess, profit from, and distribute child pornography is an egregious misinterpretation of Section 230—and one that causing grave harm to child victims. The Court should step in to determine whether Section 230 truly places Twitter above the criminal law and allows it to knowingly distribute child pornography.

Counsel of record for our petition is Taylor Meehan, joined by colleagues Thomas McCarthy and Tiffany Bates of the Antonin Scalia Law School Supreme Court Clinic/Consovoy McCarthy PLLC. Also assisting on the petition were Benjamin Bull, Peter Gentala, Danielle Pinter, and Christen Price from the National Center on Sexual Exploitation; Lisa and Adam Haba of the Haba Law Firm, Paul Matiasic of the Matiasic Firm, P.C., and me.

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[Josh Blackman] Today in Supreme Court History: April 20, 2010

Josh Blackman — Mon, 20 Apr 2026 11:00:12 +0000

4/20/2010: United States v. Stevens decided.

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[Eugene Volokh] Open Thread

Eugene Volokh — Mon, 20 Apr 2026 07:00:00 +0000

[What’s on your mind?]

The post Open Thread appeared first on Reason.com.

[Josh Blackman] What Other Leaked Documents From Long-Ago Are Coming?

Josh Blackman — Sun, 19 Apr 2026 23:48:22 +0000

[We've moved past the phase of leaking current SCOTUS documents. Now past records are in the wild.]

I've been giving more thought to the Clean Power Plan leak. I keep coming back to the fact that this set of documents is a decade old. Obviously, one or more people have been sitting on these seven memos for a decade. These records could have been given to the New York Times at any time over the past five years or so--around when the "shadow docket" panic began. Why now?

Moreover, whoever decided to keep these seven memoranda a decade ago likely did not anticipate how singularly important the Clean Power plan ruling would become. Hindsight is always 20/20. The more likely scenario is this person retained many documents. I can only imagine that more documents may be coming from this source.

I do not think that the person who retained these documents is an outlier. It is far more likely that many people at the Court have retained confidential documents over the years. These records may have long collected dust in file cabinets and banker boxes, but are now likely being dusted off.

The Justices impose strict rules on how their papers may be released after their deaths. But do the Justices even know whether copies exist outside the building? I think the answer has to be no. In the wake of Dobbs, Justice Thomas said that the Justices could no longer trust each other and their staff. This decade-long leak has further eroded whatever trust remained in the building.

Speaking of Dobbs, remember that the version Politico reported on had the indicia of a printed draft with staples and other markings. If people purloined draft memoranda in 2016, then it stands to reason that similar actions were taken for draft opinions in 2022. There may be an unspoken tradition.

The usual reason why clerks and others maintain confidentiality is that they are afraid their reputation may take a hit if a leak is traced back to them. As Justice Scalia would say, any clerk who leaks information would face the end of their career. But it isn't clear that deterrent exists anymore. Whoever retained these documents a decade ago is probably far enough removed from the Court to no longer care about possible sanction from the Chief Justice's feckless investigation. Moreover, all statutes of limitations have run. Plus, there is no chance a D.C. federal grand jury would actually indict here. The defendant would likely be given a medal. Remember, the movement is being led by people intent on showing that the Supreme Court is a failed and illegitimate institution that must be reformed from the outside. If they are outed, it may boost their career. Back in 1972, Deepthroat went to Woodward and Bernstein to protect his identity. But what if Mark Felt simply wrote his own book about Watergate?

We are not out of the woods yet. We are just getting started.

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[Eugene Volokh] "Unserious Leaders Are Unsafe," Opines a Federal Judge About RFK, Jr.

Eugene Volokh — Sun, 19 Apr 2026 22:08:48 +0000

That's the opening line from yesterday's Oregon v. Kennedy, by Judge Mustafa Kasubhai (D. Or.) (the only federal judge I've seen who includes pronouns, in this instance "he/him," in his signature block; perhaps there are a few others, but very few). I'm not knowledgeable enough on the substance to speak to the administrative law issues here, I'm no fan of Kennedy, and it would certainly not surprise me that the Administration's actions here were inconsistent with federal law. But my tentative sense is that, whatever one might personally think about Kennedy's seriousness, judges' decisions are more credible when those decisions focus solely on the law, rather than deciding which of our leaders are serious.

In any event, some excerpts from the long opinion:

Unserious leaders are unsafe. There is nothing more serious than our leaders' dedication to the rule of law so that we might maintain the integrity of our constitutional democracy. This case highlights a leader's unserious regard for the rule of law. This case demonstrates how disregard for the rule of law does not merely result in an abstract infraction. Rather, and tragically, this case is one of a long list of examples of how a leader's wanton disregard for the rule of law causes very real harm to very real people.

This Court can and does judge the lawfulness of the process (or lack thereof) by which any policy choice might be made. Here, the Secretary of Health and Human Services, Robert F. Kennedy, Jr., unlawfully issued a declaration threatening to cut federal funding to medical providers who provided gender-affirming care to minors. If such a declaration could have been enacted lawfully, there might have been ample time and opportunity for medical providers, families, and children—all people and institutions of our great nation—to seek out other alternatives and options. Secretary Kennedy's utter failure to promulgate rules in accordance with statutory authority, but instead threaten to cease federal funding to medical providers almost immediately after the declaration, caused chaos and terror for all those people and institutions of our great nation. Secretary Kennedy's unlawful declaration harmed children. This case illustrates that when a leader acts without authority and in the absence of the rule of law, he acts with cruelty.

Plaintiffs filed this lawsuit alleging that Defendants violated the Administrative Procedure Act ("APA"), by issuing a declaration entitled "Safety, Effectiveness, and Professional Standards of Care for Sex-Rejecting Procedures on Children and Adolescents." Before the Court is Plaintiffs' Motion for Summary Judgment, and Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, For the reasons below, Plaintiffs' motion is granted, and Defendants' motion is denied….

The APA requires the Court to "hold unlawful and set aside agency action, findings, and conclusions found to be … without observance of procedure required by law." Plaintiffs' Count 1 alleges that the Kennedy Declaration violates the notice and comment procedures required by the Medicare Act. The Medicare Act requires an agency to provide notice and an opportunity to comment when a (1) "rule, requirement or other statement of policy" (2) "establishes or changes a substantive legal standard" that (3) governs the eligibility of healthcare providers "to furnish or receive services or benefits." Plaintiffs argue that the Kennedy Declaration is a rule that purports to establish a new legal standard of care that governs payment or eligibility for services and thus violates the Medicare Act's notice and comment requirements. Defendants again argue the Kennedy Declaration, as a non-binding policy opinion, does no such thing.

First, with respect to the "rule, requirement, or other statement of policy" requirement, the Kennedy Declaration states that gender-affirming care for minors fails to meet professionally recognized standards of care and that the Kennedy Declaration supersedes any other state or national standard of care. This operates as a requirement for healthcare providers; if they are to meet professionally recognized standards of care, they cannot offer gender-affirming care to minors. Defendants' use of the word "Declaration," their attempted disclaimers, and their continuous arguments that the Kennedy Declaration is a "non-binding policy opinion" are not dispositive because it operates exactly like a rule would. Azar v. Allina Health Servs. (2019) ("Agencies have never been able to avoid notice and comment simply by mislabeling their substantive pronouncements."). The Court has already rejected Defendants' contention that the Kennedy Declaration has no legal consequences. The Kennedy Declaration is a "rule, requirement, or other statement of policy" for purposes of 42 U.S.C. § 1395hh's notice and comment rulemaking requirements.

Second, the rule at issue must modify a "substantive legal standard." … [T]he Kennedy Declaration … explicitly alters the standard of care, a substantive legal standard. By its plain terms, the Kennedy Declaration obliges OIG to find that healthcare providers offering gender-affirming care to minors fall below professionally recognized standards of care.

Finally, the substantive legal standard must govern the eligibility of entities to furnish or receive services or benefits. Here, by unilaterally defining a standard of care, and proclaiming that providing gender-affirming care falls short of this standard, the Kennedy Declaration prevents healthcare providers from providing gender-affirming care to minors if they wish to remain eligible for federal funding. This is sufficient to establish that the substantive legal standard at issue in the Kennedy Declaration governs healthcare providers' eligibility to furnish services. Medicare's notice and comment rulemaking requirements apply.

Defendants did not comply with Medicaid's procedural requirements because there is no dispute that Defendants failed to provide notice or an opportunity for comment. "[N]otice and comment [is] a matter not merely of administrative grace, but of statutory duty." "Notice and comment gives affected parties fair warning of potential changes in the law and an opportunity to be heard on those changes—and it affords the agency a chance to avoid errors and make a more informed decision." Plaintiffs' Motion for Summary Judgment as to Count 1 is granted and Defendants' cross-motion is denied because the Kennedy Declaration violated Medicare's notice and comment requirements….

Plaintiffs' Count 3 alleges that Defendants exceeded their statutory authority in violation of 5 U.S.C. § 706(2)(C), which requires the Court to "hold unlawful and set aside agency action, findings, and conclusions found to be … in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" ….

The Court agrees with Plaintiffs that Defendants have failed to invoke any statutory authority that authorizes the Kennedy Declaration, much less an "unmistakably clear" one that would be required to supplant states' authority to regulate medical conduct. Indeed, the Medicare statute specifically states that it shall not "be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided." …

Finally, Plaintiffs' Count 4 alleges that the Kennedy Declaration is not in accordance with the law and therefore in violation of 5 U.S.C. § 706(2)(A), which requires the Court to "hold unlawful and set aside agency action, findings, and conclusions found to be … not in accordance with law." …

The statute does provide for HHS to disallow payment under approved Medicaid plans after "reasonable notice and opportunity for hearing" if the HHS Secretary finds that a state's Medicaid plan no longer complies with the statutory conditions. Here, however, HHS has not provided notice or an opportunity for hearing, and it has made no finding that any Plaintiffs' Medicaid plan does not comply with statutory conditions. The Kennedy Declaration violates the HHS Secretary's obligation to pay under approved Medicaid plans by subjecting providers to exclusion for providing care that is covered under approved Medicaid plans without complying with the statutory and regulatory requirements governing disallowance of payments….

This Court can scarcely recall an APA action that has come before it in which the agency's action was so clearly unlawful. Indeed, many of Defendants' arguments rest on the same falsehoods about the Kennedy Declaration and its effects that the Court already rejected in response to Defendants' jurisdictional arguments. Defendants' merits briefing takes these absurd arguments a step further by suggesting that finding the Kennedy Declaration unlawful would impinge Secretary Kennedy's First Amendment right to express his views and hinder public debate on a matter of public importance.

Defendants cannot bully or gaslight this Court into ignoring the many procedural and legal flaws of the Kennedy Declaration by invoking one of the most sacred principles of our constitutional democracy—the freedom of speech—when that principle comes nowhere close to being implicated. Plaintiffs' claims do not contest Secretary Kennedy's rights to express his views on gender-affirming care, and their lawsuit does not seek to limit Secretary Kennedy's ability to speak generally about gender-affirming care for minors. Rather, Plaintiffs' claims challenge Secretary Kennedy's authority to unilaterally, categorically, and without any process, supersede professional standards of care regarding gender-affirming care that apply in the Plaintiff states. Secretary Kennedy's First Amendment rights are not even at issue, much less offended.

However, several other principles sacred to our constitutional democracy are both implicated and offended: the rule of law and state sovereignty. The Kennedy Declaration exceeded Defendants' statutory authority, flouted applicable notice and comment rulemaking procedures, and impeded Plaintiffs' rights to regulate the medical profession and their discretion to design their own statutorily-compliant Medicaid plans….

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[Ilya Somin] Upcoming Speaking Engagements in Spain and Italy

Ilya Somin — Sun, 19 Apr 2026 17:08:15 +0000

[I will be giving multiple talks in these two countries in late April and May.]

In late April and May, I will be doing multiple speaking engagements in Spain and Italy. Several of these events are open to the public, to varying degrees. I look forward to potentially meeting readers in those two countries!

Below is the list of the events, along with relevant links (listed times are in the local time zone). I will update with additional relevant information, if it becomes available.

April 24, 7:40-8:30 PM, LibertyCon Europe 2026 (sponsored by European Students for Liberty), Madrid, Spain: "The Nationalist Threat to Economic Liberty." Panel on "Economic Freedom: Challenges and Perspectives." Registration and other information about this conference here. I think this event is only open to registered participants in the conference, and invited speakers.

April 26, 4:30-5:15 PM, LibertyCon Europe 2026 (sponsored by European Students for Liberty), Madrid, Spain: "Free Trade: Liberation from Trump's 'Liberation Day' Tariffs." Registration and other information about this conference here. I think this event is only open to registered participants in the conference, and invited speakers. But registration is easy.

May 12, 11::00 AM-1 PM, Unitelma Sapienza University of Rome, Rome, Italy: "Threats to Liberal Democracy in the United States - And How to Counter Them." This is primarily an online event. You can watch it here.

May 14-15, Common Core of European Administrative Law (COCEAL), Workshop on Welfare Rights, Bocconi University, Milan, Italy: "Constitutional Welfare Rights in the United States." This is an ongoing workshop continuing over two days. I am afraid it is open only to invited participants.

May 18, 6-7 PM, Bruno Leoni Institute, Residenza Vignale, Milan, Italy: "The Legal Battle Against Trump's Tariffs." This event, sponsored by Italy's leading libertarian/classical liberal think tank, is open to the public.

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[Josh Blackman] The Chief Justice Behind The Curtains

Josh Blackman — Sun, 19 Apr 2026 15:26:35 +0000

Long-time readers may remember a series of posts I wrote circa 2020 about the conflicts between Chief Justice Roberts and Justice Kagan. One of my recurring themes was that the Chief Justice thought he was in control of the Court, but he clearly wasn't. Moreover, I suggested that the genesis of many of the leaks was due to frustration with the Court, and the Chief Justice's leadership in particular. Finally, I said that if the Chief could not right the ship, he should step down. To this day, people misunderstand my point. My call for resignation had nothing to do with any particular ruling or decision by Roberts that I disagreed with. If that was the litmus test, I would routinely call on the Court's progressives to call it quits. Rather, why would I tell Roberts--someone I agreed with about 90% of the time--to step down? The answer was a failure of leadership that was visible through publicly available information.

The leak in the Clean Power Plan case confirms much of how I've suspected the Chief manages his leadership of the Court.

Remember how John Roberts projects himself publicly. Roberts is an "institutionalist." He came to the Court wanting to reduce the number of 5-4 decisions. He didn't want the Court to seem partisan with teams on the right and teams on the left. He favored slow, incremental decisions.

Yet in the Clean Power Plan case, he tossed all of that caution to the wind. He led the charge to grant an unprecedented stay by a party line 5-4 vote. Justice Breyer offered a potential middle ground, which Roberts forcefully rejected as meaningless. Further, Justice Kagan's memorandum stated quite clearly how Roberts was venturing into novel territory. Roberts didn't care. And this wasn't a case where Justice Thomas or Scalia was pushing the Court to the right, and Roberts felt compelled to join so he could moderate. The Chief Justice was behind the wheel. Justice Kennedy said he was persuaded by the Chief in particular. Had Roberts done nothing, the stay would have been denied.

I don't think anyone could have anticipated what would happen with the emergency docket, but there was every good reason to recognize this ruling was novel. There is a reason I remember the exact moment in time when I read about the stay. For me, it was akin to asking "Where were you when President Kennedy was assassinated" or "Where were you when Reagan was shot." (I was not alive for either moment.) I remember the stay order with absolute clarity, because I immediately recognized how big a shift this was. Savvy judges on the D.C. Circuit, including then-Judge Kavanaugh, likely realized the impact as well. I would love to have asked Judge Silberman about this ruling. The Supreme Court told the nuclear D.C. Circuit "We don't trust you." If you want to mark the beginning of the rupture between the Supreme Court and the lower courts, this was likely it.

So then what do we make of the Chief Justice's purported institutionalism? It's not real. It was never real. When the Chief Justice says he is committed to the Supreme Court as an institution, that simply means he is committed to the Supreme Court as he sees it. The man cannot separate the two concepts. I'm sure John Marshall suffered from the same delusions of grandeur. Roberts is a judicial supremacist, and in particular, a SCOTUS supremacist. He could not brook the notion that lower court judges could settle this major question of national significance. It would have been untenable for Chief Judge Garland, the SCOTUS Susan Lucci (always on the short-list but never a winner), to have the final say. And the notion that the outgoing Obama Administration could lock in a policy without the Chief Justice having his say was also untenable. Roberts saved Obamacare so he earned this right to intervene. Thus, the modern shadow docket was born not to hurt a liberal president or help a conservative president. It was born to ensure the Supreme Court remained Supreme. Trump v. CASA, decided a decade later, was a manifestation of that philosophy.

When Roberts publicly rants about institutionalism, his colleagues have to roll their eyes. This is what we would call a loss of leadership. The other justices cannot take him seriously. It is unsurprising then there are so many leaks, even as the Chief purports to clamp down. In any other field, a CEO or head coach with this track record would have been long ago removed. But not on the Supreme Court.

Roberts should have stepped down in 2020. I think the Supreme Court would be much healthier today with anyone else at the helm--including Elena Kagan. Justices Thomas and Alito are the glue holding the Court together. They should stay as long as they can. The Chief Justice, by contrast, is still stuck in his own world. Maybe the Chief Justice should take a deep look in the mirror and realize that he bears a lot of the blame for the current crisis.

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[Josh Blackman] Today in Supreme Court History: April 19, 1920

Josh Blackman — Sun, 19 Apr 2026 11:00:20 +0000

4/19/1920: Missouri v. Holland decided.

The White Court (1920)

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[Eugene Volokh] Open Thread

Eugene Volokh — Sun, 19 Apr 2026 07:00:00 +0000

[What’s on your mind?]

The post Open Thread appeared first on Reason.com.

[Josh Blackman] The Substance of the Clean Power Plan Memos

Josh Blackman — Sun, 19 Apr 2026 06:22:40 +0000

[The Chief Justice reminds us why he was the best lawyer of his time. ]

I've often said that my favorite Chief Justice Roberts opinions are his dissents. Why? I know he actually believes what he is writing. His majority opinions are always so guarded, as he is trying to keep the Court together and maintain the "institutionalist" credo. But the dissents are authentic. This was especially true in Roberts's solo dissent in Uzuegbunam. The same rule applies to Roberts's internal communications that are not meant for public consumption. Unfortunately, we only find out about these internal communiques through leaks. Most recently, I was impressed when Roberts told Judge Boasberg to chill out. (Query whether that interaction might require the Chief's recusal in the appeal of JEB's contempt crusade.)

The latest New York Times reporting fits the mold as well. Here, we get insights into how Roberts views emergency docket relief.

First, Roberts addresses one factor of the balancing test: will four Justices grant cert?

I have little doubt that whatever the outcome of the proceedings in the D. C. Circuit, there will be a petition for cert. I find it very likely that four this members of Court will vote to grant the petition, again regardless of the outcome below.

This element has long bothered me. There is an easy way to know if four Justices will vote to grant cert: ask them. Still, here we see Roberts speculating on what three of his other colleagues would do. Frankly, if five Justices are willing to grant a stay, that is proof positive there are four votes for cert. So this factor seems somewhat irrelevant.

Second, Roberts sketches out his views on the Major Questions doctrine, in light of UARG:

As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a "long-extant statute" to "bring about an enormous and transformative expansion in [their] regulatory authority without clear congressional authorization." Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014). The applicants also raise a strong argument that regulation of power plants under §7412 precludes the EPA's promulgation of this rule under §7411(d).

I realize the New York Times fixated on the emergency docket aspect of the memorandum, but from a jurisprudential perspective, it is significant that Roberts locked in on the MQD as the basis for relief is significant. Presumably Justice Scalia also favored this approach to the MQD, though he would not live to see the outcome.

Third, Roberts speculates about how long the petition will take to get to the Court:

The applicants also meet the third criterion for a stay, irreparable harm. The D. C. Circuit will hold oral argument on June 2 , 2016, so a cert petition is not likely to be considered by this Court until this winter. Depending on the timing of the D. C. Circuit's decision- and taking into account the potential for en banc review it is possible that this Court will not rule on the merits until OT2017.

Litigants routinely do this sort of calculation, in light of the fact that there is such a long lead-time between briefing in the circuit court and a decision by SCOTUS. The Solicitor General will sometimes ask for a briefing schedule that permits resolution during the current term. Apparently, the Justices do this math as well. For example, I speculated that the Court sat on the petition for Students for Fair Admissions to kick it to the following term--after Dobbs. But on the flip side, the Justices can also rush a case to get it decided during a particular term.

Fourth, the Chief Justice was apparently bothered by a statement EPA Administrator Gina McCarthy made to the BBC:

Past experience makes the case for irreparable harm : On June 29, 2015, we ruled that the EPA's Mercury and Air Toxics Standards violated the Clean Air Act. See Michigan v. EPA, 135 S. Ct. 2699. One day later, the EPA announced that it was "confident [it was] still on track to reduce" the targeted pollutants in part because "the majority of power plants are already in compliance or well on their way to compliance." Janet McCabe, Acting Asst Admin. for Office of Air and Radiation, In Perspective: the Supreme Court's Mercury and Air Toxics Rule Decision. In other words, the absence of a stay allowed the agency to effectively implement an important program we held to be contrary to law.

Roberts knew that the Obama Administration was trying to cement this policy so it cannot be undone. And they were cocky about it.

I also appreciate Justice Breyer's memo. He offers a decent sense of compromise. Breyer would have suggested that if the EPA did not grant an extension, the parties can "renew" their application before the Supreme Court. Breyer also worries about the lock-in effect: "issuance of the order now may prematurely suggest a view on the merits of questions that now seem difficult."

Breyer wrote this memo on February 6, the following day after the Chief's memo was circulated. Breyer moved fast. Roberts moved faster. The Chief, in turn, wrote another three-page memo also dated on February 6. There was a race to persuade Justice Kennedy, and Roberts would not take it lying down. This exchange reminds us of why Roberts was the most gifted lawyer of his generation. He ran intellectual circles around opposing counsel, and I suspect he still does so with some of his colleagues. No one can match his speed and acumen. That must grate on the others.

Roberts does not think Breyer's proposed order would do much good. "The proposed order simply recites that the applicants may renew their applications in light of changed circumstances, which is always the case." Yes and no. By saying the applicants can renew their application, the Court is signaling that such relief would be granted. With the benefit of hindsight, the Court now routinely uses this sort of language when they are worried the lower court will not rule with enough alacrity.

Roberts also pushes back on the "lock-in" theory.

As to the second point, all stays- whenever issued- suggest a view on the merits of the case. Indeed, a view on the merits is one of the explicitly enumerated stay factors.

Of course he is right. The notion that the Court cannot give a preview of the merits has always seemed wrong to me. Justice Kavanaugh, and at least Chief Justice Roberts circa 2016, are right on this point.

Moreover, Roberts disputes that a D.C. Circuit opinion would be helpful.

There is nothing unique in that regard about issuing a stay here. True, we do not have the Court of Appeals' view on the matter. But while a reasoned decision from a Court of Appeals is generally helpful in evaluating the merits of a stay application, in this well-lawyered set of applications the merits of the legal positions taken by both sides seem clear.

When a case is properly briefed, it really will not matter what the D.C. Circuit judges will think. Indeed, Roberts suggests that the D.C. Circuit will not be in a hurry to decide the case:

While the D. C. Circuit has expedited briefing in this case, the court has not "agreed to issue its decision on an expedited basis."

I would point out that all four of the Chief's clerks that term had previously clerked on the D.C. Circuit. They knew exactly what the D.C. Circuit, stacked with new Obama appointees, would do.

Roberts returns to a statement made by McCarthy. He does not trust the Obama Administration, and does not trust the D.C. Circuit. Only SCOTUS should have the final say:

I am of the mind that a rule designed to transform a substantial swath of the nation's economy should be tested by this Court before it is presented as a fait accompli. But it seems that the EPA is sufficiently confident of this rule's immediate implications that not even the combined efforts of Congress and the President could reverse its effects . The agency, it would seem, has made a compelling case for the applicants' claims of irreparable harm.

On February 7, Justice Kagan writes back. She would have made the language even more forceful, hoping for a prompt decision:

"In light of that court's agreement to consider this case on an expedited schedule, we are confident that it will [or even: we urge it to] render a decision with appropriate dispatch."

Kagan said the Court's ruling would be "unprecedented."

As far as I can tell, it would be unprecedented for us to second-guess the D. C. Circuit's decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.

Only four years removed from the Obamacare case, "unprecedented" was such a more loaded term.

Then there is Justice Sotomayor's memo. It is dated February 16, 2016. This memo was almost certainly circulated circa February 7, 2016. It came after Justice Kagan's February 7 memo, as it references Kagan's memo. But Sotomayor's memo came before Justice Alito's February 7 memo, which references "Sonia." I agree with Jon Adler that the most likely explanation for the February 16 label is an automatic date field. Whenever the document is opened, the current date is inserted. Someone printed this document on February 16, and the date field was updated. On February 16, most people were mourning Justice Scalia's passing three days earlier, but at least someone thought it a good idea to retain a physical copy of this memo.

This passage made me think of Jody Kantor's story from February about the Supreme Court NDA. Kantor wrote:

The agreements may complicate another Supreme Court tradition: former clerks cashing in on what they learn there. Law firms now pay clerks signing bonuses as high as $500,000. The court requires them to avoid working on its own cases for two years. But after that, former clerks often spend the rest of their careers monetizing the knowledge they gained from working directly with the justices and also reading still-secret older case files, some said in interviews. While they are not supposed to share specifics with clients, plenty of details slip out, the former clerks said.

Kantor's article quotes several law clerks who might have knowledge on the practice of retaining case files after the clerkship concludes. I puzzled about this claim at the time. I wrote:

I am intrigued about how clerks share information from "still-secret older case files" with clients. I had never thought about it, but I suppose clerks may keep some documents from their clerkships on the way out. (Back when I clerked, there was no VPN, so I stored files on my personal computer so I could work from home.) Would old SCOTUS documents still be valuable to clients? I suppose.

Well, this set of documents from 2016 is very valuable.

Back to the Clean Power Plan, and Justice Alito's memo. What about legitimacy? The thrust of the New York Times story is that the Clean Power Plan set the Court down a path of illegitimacy. But there is a different perspective. Allowing the D.C. Circuit to have the final say on the matter would weaken the Supreme Court's legitimacy. All of the critics of the Supreme Court's "shadow docket" are content when the D.C. Circuit or Ninth Circuit decides cases with expedited briefing and no oral argument. All lower courts have shadow dockets. Justice Alito's memo speaks to this issue directly:

And this harm, once incurred, is by nature irreparable. Coal plants are not shuttered - nor solar plants purchased -at the drop of a hat. Of course, the Administrator knows this, which is why she effectively implied that, if the rule is allowed to continue in force, judicial review will be beside the point. That leads me to what is, in my view, the most pressing reason to grant a stay. A failure to stay this rule threatens to render our ability to provide meaningful judicial review- and by extension, our institutional legitimacy- a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. Ifwe fail to stay the rule and maintain the status quo, our resolution ofthe merits will not matter because the regulated parties will have complied. Instead of robust judicial review, our opinion will be a mere postscript.

Either the Supreme Court is supreme or it is not. Chief Judge Garland and his colleagues should not have had the final say on this matter. Chief Justice Roberts would.

The last document in the thread is from Justice Kennedy. Please remember that at this time, Justice Kennedy was the center of the universe. He decided everything. Here, Kennedy seems to think that a stay would be appropriate after the D.C. Circuit (inevitably) rules in favor of the government, so the Court may as well grant relief now.

The memoranda from the Conference have been very helpful. In my view, a stay would be granted in four to six months in any event, and fairness to the parties counsels that we should grant it now. Therefore, I agree with the recommendation of the Chief that the stay applications be granted.

The fact that the Chief and Alito persuaded AMK was huge. Justice Kagan tried her best, but did not succeed. I don't think people realize that judges are basically attorneys trying to persuade their colleagues. Memos between judges are attempts to convince others to join. Here, Roberts prevailed.

The post The Substance of the Clean Power Plan Memos appeared first on Reason.com.

[Josh Blackman] Some Questions About The SCOTUS Leak On the Clean Power Plan Case

Josh Blackman — Sun, 19 Apr 2026 04:37:28 +0000

[This story is only getting started.]

The Dobbs leak and the Clean Power Plan leak are very different. The Dobbs leak was designed to impact a pending case. Whether you believe that a conservative leaked the opinion to lock down the votes, or that a liberal leaked the opinion to shift the votes, all roads leads to an attempt to influence the outcome. But the Clean Power Plan leak serves a very different purpose. The case was decided a decade ago. The actual legal issues are no longer important. The Clean Power Plan is long since dead. Rather, the ostensible purpose of this leak is to attack the Supreme Court's legitimacy. As the saying goes, "Burn it down."

Where did the leak came from? Within a few moments of reading the article, a name came to mind. It wasn't that hard. No, I won't say that name, at least at this moment. It is a very serious allegation to charge anyone with this act. And indeed, the person I have in mind may not have been the source who gave it to the New York Times, but a third party conveyed it. For all we know, this ten-year old set of documents has been passed around many times. Secrets in Washington, D.C. do not stay secrets for long. It is entirely possible many people knew about these records. We should all be careful before accusing anyone publicly. But I suspect this name will come out in the not-too-distant future.

What can be done about this leak? I'm sure Chief Justice is furious. He has not had a good week. This report comes only a few days after Justice Sotomayor attacked Justice Kavanaugh, declined to apologize the next day, and released what looked to be a forced apology. Moreover, the New York Times depicts the Chief in a very unflattering light as being the Anti-Prometheus of the Shadow Docket. (Prometheus sheds light, Roberts, apparently, did the opposite.) I suppose the Supreme Court Marshal can initiate another investigation. Records presumably exist about who had access to the various memos, including, as Jon Adler speculated, what appears ot be a non-circulated version of Justice Sotomayor's memo. There is a limited universe of people who would have access to that memo. Reconstructing that distribution list a decade later may be hard, but it can be done. I suppose DOJ could investigate--assuming a federal law was violated--but the statute of limitation would have run years ago. The House or Senate Judiciary Committees could hold hearings and maybe even issue subpoenas.

What do we make of the Court's internal procedures? Well, for starters, this is the first public reflection of how the Roberts Court handles emergency docket orders internally. Justice Kagan has complained that the Court decides emergency issues without the benefit of oral argument. Here, the Justices circulated and shared formal memoranda back and forth. They are fairly substantive and polished. Given the date stamps, these memos would have had to have been prepared in a span of hours. And the memos are written in the distinctive voice of the Justices, so the clerks are not driving the train here (other than pulling footnotes). The Supreme Court operates as a sort of a law firm, with partners shooting off memos to one another.

What about legitimacy? The thrust of the New York Times story is that the Clean Power Plan set the Court down a path of illegitimacy. But there is a different perspective. Allowing the D.C. Circuit to have the final say on the matter would weaken the Supreme Court's legitimacy. All of the critics of the Supreme Court's "shadow docket" are content when the D.C. Circuit or Ninth Circuit decides cases with expedited briefing and no oral argument. All lower courts have shadow dockets. Justice Alito's memo speaks to this issue directly:

And this harm, once incurred, is by nature irreparable. Coal plants are not shuttered - nor solar plants purchased -at the drop of a hat. Of course, the Administrator knows this, which is why she effectively implied that, if the rule is allowed to continue in force, judicial review will be beside the point. That leads me to what is, in my view, the most pressing reason to grant a stay. A failure to stay this rule threatens to render our ability to provide meaningful judicial review- and by extension, our institutional legitimacy- a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. Ifwe fail to stay the rule and maintain the status quo, our resolution ofthe merits will not matter because the regulated parties will have complied. Instead of robust judicial review, our opinion will be a mere postscript.

Either the Supreme Court is supreme or it is not. Chief Judge Garland and his colleagues should not have had the final say on this matter. Chief Justice Roberts would.

I'll close by noting the elephant in the room--or is it the donkey? In February 2016, it looked like Hillary Clinton would win the election. I'm sure the Chief thought there would be plenty of time to litigate this issue during the next administration. Of course, as history relates, Trump won.

I'll talk about the substantive legal analysis from the Chief Justice and Justice Kagan in another post.

The post Some Questions About The SCOTUS Leak On the Clean Power Plan Case appeared first on Reason.com.

[Josh Blackman] February 9, 2016

Josh Blackman — Sun, 19 Apr 2026 02:15:29 +0000

[A flashback to the grant of the emergency stay in the Clean Power Plan.]

I remember the evening of February 9, 2016 very clearly. I had just arrived at Bush Intercontinental Airport, like I had hundreds of times before. It was around 5:00 pm. I had just cleared security in Terminal C, and was turning left near Gate C42 (yes, I know all the gates by heart). I looked at my phone and saw a tweet that the Supreme Court had granted an emergency stay order in the Clean Power Plan. I remember being surprised. I could not recall the Supreme Court ever granting a stay while a case was pending before the Supreme Court. I thought, wow, Justice Kennedy actually agreed with the conservatives. Remember this was a few months after June 2015, which was the worst term for conservatives in recent memory. I then proceeded to my gate and did not give the issue much more thought for a few days.

Then came February 13, 2016, the day Justice Scalia died. I recently wrote about that memorable day on the tenth anniversary. But at some point on that day, a thought crossed my mind: Justice Scalia's last, and perhaps most important vote, was to grant the emergency stay. Had the deliberations stretched a few more days, there would not have been five votes for a stay. The American and global economy would be very different today. In recent months, I've given several talks about the emergency docket. I always say the birth of the modern shadow docket was the Clean Power Plan vote. Others apparently agree.

Of course, the New York Times's latest reporting on the Supreme Court leaks came during Shabbat. As I signed online, my computer nearly combusted. I'll have much more to write in due course.

It is noteworthy that Justice Scalia did not contribute a memo to the conference. Why? He was probably very busy. In Unraveled, I discuss where Justice Scalia was after the Supreme Court heard its last oral argument of the sitting on January 20, 2026. The case was Sturgeon v. Frost, fittingly argued by Justice Scalia's law clerk, and future federal judge, Rachel Kovner:

On January 20, 2016 – one year to the date before the forty-fifth president would be sworn in – the Supreme Court heard oral arguments in Sturgeon v. Frost. The facts of the case were simple enough. John Sturgeon piloted his hovercraft across a river in an Alaskan park. Alaska law permits the use of the hovercraft. Federal law does not. The National Park Service ordered Sturgeon to remove his hovercraft from the natural preserve. Sturgeon countered that the river was owned by Alaska and, due to the forty-ninth state's unique status, was excluded from federal jurisdiction. Arguing for the federal government was Rachel Kovner, assistant to the solicitor general, who clerked for Justice Scalia nine years earlier.1 About fifty-three minutes into the hour-long argument, Scalia posed his final question of the day: "And if you read that back into Section 100751, it seems to me the Park Service doesn't have jurisdiction." Kovner replied to her former boss, as she no doubt had said many times before in chambers, "We agree, Your Honor." Sturgeon would be the last case argued before a month-long break began. During this recess, the justices scattered across the globe.2 Some stayed local. Justice Sotomayor visited several schools in her hometown of New York City. Justice Thomas traveled to Gainesville to speak to law students at the University of Florida. Chief Justice Roberts visited New England Law School in Boston. Others traveled abroad. Justice Breyer, who is fluent in French, lectured at the Institut Français in Paris. Justice Ginsburg journeyed to the European University Institute in Florence to talk about the "Notorious RBG." During that recess, the Court's greatest globetrotter was the Justice least concerned about international law.3 Fittingly, Justice Scalia was spreading American law abroad. At the Ninth Circuit Judicial Conference in July 2016, Justice Kennedy recalled that Scalia told him, "Tony, this is my last big trip." On January 24, Scalia traveled to Singapore with his friend and coauthor Bryan A. Garner. A law professor at Southern Methodist University, Garner is the preeminent American lexicographer. On January 28, Scalia gave the Lee Kuan Yew Distinguished Lecture at the University of Singapore on judicial interpretation of legal texts.4 On February 1, Justice Scalia and Justice Kemal Bokhary of Hong Kong's Court of Final Appeal hosted a dialogue on judges and democracy.5 The next day, Scalia and Garner discussed their second coauthored book, Reading Law, at the Chinese University of Hong Kong.6 Garner reminisced that during their busy trip, his colleague was "unbelievably energetic and always on the go," even after working fourteen-hour days.7 On February 3, their final day in Hong Kong, Garner and his wife Karolyne had their palms read by a soothsayer at a Taoist temple. "Nino, you ought to get your palm read," Garner said. Scalia replied, "No. I don't want to know when I'll die." Garner nudged him, "Come on!" Scalia dissented, "No." After his worldwide tour, Scalia traveled from the Far East to West Texas. On the afternoon of Friday, February 12, Scalia checked into the "El Presidente" suite at the Cibolo Creek Ranch, a 30,000-acre resort outside of Marfa.8 That evening, Scalia attended a private dinner with forty other guests.9 Toward the end of the meal, he retired to bed. The next morning, when he did not arrive for breakfast, an employee of the ranch checked in his room. Scalia was found dead in his bed. A priest was called to administer last rites. Scalia was seventy-nine years old. He was survived by his wife Maureen, nine children, and thirty-six grandchildren. The justice was seven months short of his third decade on the Supreme Court.

Blackman, Josh. Unraveled: Obamacare, Religious Liberty, and Executive Power (pp. 477-479). (Function). Kindle Edition.

I will have much more to say about this leak in due course.

The post February 9, 2016 appeared first on Reason.com.

[Eugene Volokh] Government Likely Violated First Amendment in Getting Apple and Google to Block ICE Sightings Content, Court Holds

Eugene Volokh — Sun, 19 Apr 2026 01:18:27 +0000

From yesterday's decision by Judge Jorge Alonso (N.D. Ill.) in Rosado v. Bondi:

Plaintiff Kassandra Rosado runs a Facebook group called "ICE Sightings – Chicagoland" and Plaintiff Kreisau Group runs a phone application called "Eyes Up." Both allow users to post videos and information regarding ICE activity. Plaintiffs allege that Defendants coerced Facebook into disabling the Chicagoland Facebook group and coerced Apple into removing Eyes Up. Plaintiffs contend that this violated their First Amendment rights ….

Plaintiff Kassandra Rosado created "ICE Sightings – Chicagoland" in January 2025 as a Facebook group for people to post videos and information regarding ICE activity. On October 12, 2025, social media influencer Laura Loomer posted a link to the Facebook group and tagged Pamela Bondi and Kristi Noem. On October 14, Bondi posted: "Today following outreach from [the DOJ], Facebook removed a large group that was being used to dox and target [ICE] agents in Chicago." Also on October 14, Defendant Noem posted: "Today, thanks to [the DOJ], Facebook removed a large page being used to dox and threaten our ICE agents in Chicago."

Around October 14, Facebook disabled the group and notified Rosado that the group "went against the Community Standards multiple times." …

Plaintiff Kreisau Group created "Eyes Up" in August 2025 as a phone application for people to post videos and information regarding ICE activity. Around October 2, 2025, Apple removed several apps that shared information regarding ICE activity, including ICEBlock, Red Dot, and Eyes Up. Speaking to Fox News on October 2, Defendant Bondi stated: "We reached out to Apple today demanding they remove the ICEBlock app from their App Store – and Apple did so." And on October 8 Bondi made a public statement that "we had Apple and Google take down the ICEBlock apps."

Apple informed Kreisau Group that Apple had removed Eyes Up from the App Store after receiving "information" from "law enforcement" that the app violated Apple's guidelines. Apple stated that the app violated guideline 1.1.1, which prohibits "defamatory, discriminatory, or mean-spirited content."

The court concluded that plaintiffs had standing to challenge the government action:

"[A] federal court cannot redress injury that results from the independent action of some third party not before the court." Murthy v. Missouri (2024). In other words, Plaintiffs must show that the injuries are "likely traceable to government-coerced enforcement of Facebook's [and Apple's] policies rather than to Facebook's [and Apple's] independent judgment." The Court finds that Plaintiffs have shown that their injuries are likely traceable to government-coerced enforcement for the following reasons.

First, Facebook had previously reviewed the Chicagoland group, and Apple had previously reviewed Eyes Up. In both cases, Facebook and Apple had determined that the content met their requirements. {Prior to October 14, out of thousands of posts and tens of thousands of comments made in the Chicagoland Facebook group, Facebook's moderators found and removed only five posts and comments that purportedly violated Facebook's guidelines. When Facebook removed those posts, Facebook advised Rosado that the posts were "participant violations" that "don't hurt your group" and that "groups aren't penalized when members or visitors break the rules without admin approval." Additionally, Facebook's policies do not call for disabling groups if just a few members post prohibited conduct. Rather, Facebook's policies call for disabling groups when the group moderator either creates prohibited content or affirmatively approves such content….

Apple had previously and independently reviewed Eyes Up in August 2025. During that previous review, Eyes Up was already available on its website, and Apple had knowledge of the purpose of Eyes Up, of actual videos available on it, and how it worked. Apple had flagged some unrelated issues, which Kreisau Group resolved before Apple approved the app. And at that time, Apple raised no concern that Eyes Up contained "defamatory, discriminatory, or mean-spirited content" in violation of guideline 1.1.1….}

Second, Facebook and Apple changed their positions and removed the content immediately after Defendants contacted them about it. And third, Defendants made public statements taking credit for the fact that Facebook and Apple had removed the content….

And the court held that the government's action likely violated the First Amendment:

The Supreme Court has established that "[g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors." NRA v. Vullo (2024). "To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff's speech." Critically, when considering the government's threats:

[T]he fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff's message, is not necessarily dispositive…. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

Backpage.com v. Dart (7th Cir. 2015). As the Seventh Circuit found in Backpage, although the defendant lacked "authority to take any official action" and did not "directly threaten the [third parties] with an investigation or prosecution," the defendant still engaged in coercion where he "demand[ed]" rather than "request[ed]," and where he "intimat[ed]" that the third parties "may be criminal accomplices" if they failed to comply.

Here, Bondi and Noem did exactly that. They reached out to Facebook and Apple and demanded, rather than requested, that Facebook and Apple censor Plaintiff's speech. See R. 10-4 at 29 (emphasis added) ("'We reached out to Apple today demanding they remove the ICEBlock app from their App Store – and Apple did so,' Bondi said in a statement to Fox News Digital."); R. 10-4 at 36 (emphasis added) (Loomer posting on social media that "DOJ source tells me … they have contacted Facebook … to tell them they need to remove these ICE tracking pages."); R. 10-4 at 65 (Noem posting on social media that "[p]latforms like Facebook must be PROACTIVE [sic] in stopping the doxxing of our [ICE] law enforcement.").

Bondi and Noem also intimated that Facebook and Apple may be subject to prosecution for failing to comply with Bondi and Noem's demands. For example, after stating that we "had Apple and Google take down the ICEBlock apps," Bondi further stated: "We're not going to stop at just arresting the violent criminals we can see in the streets." And in the same social media post where Noem wrote that "[p]latforms like Facebook must be PROACTIVE in stopping the doxxing of our [ICE] law enforcement," she added: "We will prosecute those who dox our agents to the fullest extent of the law."

Although these statements may not be direct threats to prosecute Facebook and Apple, they are intimations of a threat. And thinly veiled threats such as these constitute sufficient evidence on which Plaintiffs are likely to succeed on their claim. See Bantam Books, Inc. v. Sullivan (1963) ("People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around.")….

The court has not yet decided on the precise terms of the preliminary injunction, but ordered plaintiffs' counsel to submit a draft injunction by Wednesday "after discussing the form of the order with Defendants' counsel."

Note that the government didn't even argue that plaintiffs' content fit within any First Amendment exception or was otherwise constitutionally unprotected.

Colin P. McDonell, James C. Grant, Hannah M. Abbott, and Cary Davis (FIRE) represent plaintiffs.

The post Government Likely Violated First Amendment in Getting Apple and Google to Block ICE Sightings Content, Court Holds appeared first on Reason.com.

[Jonathan H. Adler] Leaked Supreme Court Memos Reveal Why Court Stayed Clean Power Plan (Setting Important "Shadow Docket" Precedent in the Process)

Jonathan H. Adler — Sat, 18 Apr 2026 13:35:49 +0000

[A New York Times scoop reveals that Chief Justice Roberts was concerned that the EPA would (again) get away with imposing unlawful burdens on utilities. ]

This morning's New York Times contains a blockbuster scoop by Adam Liptak and Jodi Kantor: Internal memos from the Supreme Court discussing whether to stay the Obama Administration's Clean Power Plan. The NYT has published a narrative story, a chronology of the memos, a list of "takeaways," and the documents themselves.

The documents confirm what a few of us suggested at the time: The Court's majority was concerned that, without a stay, the Environmental Protection Agency would get away with imposing unlawful regulatory burdens on electric utilities, as has occurred with the mercury regulations held unlawful by the Court in Michigan v. EPA.

As a memo by the Chief Justice notes, the EPA had crowed that the Court's Michigan decision was effectively irrelevant because utilities had been forced to spend billions of dollars to comply while waiting for the litigation to resolve, and there were reasons to fear history would repeat itself. As the Chief Justice wrote in one memo:

Past experience makes the case for irreparable harm: On June 29 2015 we ruled that the EPA's Mercury and Air Toxics Standards violated the Clean Air Act See Michigan v EPA, 135 S. Ct 2699. One day later the EPA announced that it was confident it was still on track to reduce the targeted pollutants in part because the majority of power plants are already in compliance or well on their way to compliance Janet McCabe Acting Asst Admin for Office of Air and Radiation In Perspective: the Supreme Court's Mercury and Air Toxics Rule Decision In other words the absence of stay allowed the agency to effectively implement an important program we held to be contrary to law

While the posture is different, the Chief Justice's concerns are in line with those that prompted to Supreme Court to make pre-enforcement review of agency regulations the default presumption in 1967's Abbott Labs trilogy: Firms should not be forced to make substantial (and largely unrecoverable) investments to comply with regulations that may not be lawful exercises of agency authority.

The memos also reveal that the Chief Justice, if not the Court's entire conservative wing, understood the "major questions doctrine" as a thing, highlighting what the Court had held in UARG v. EPA--another case invalidating EPA regulations governing greenhouse gas emissions. Recall that the Chief also highlighted this UARG language in his King v. Burwell opinion. Again, from the Chief's initial memo:

[The EPA's] interpretation of §7411 represents a new approach to the statute. Past rules under $ 7411(d) have contemplated that utilities could comply with the articulated "best system of emission reduction" solely through installation of control technologies (e.g. , scrubbers)-which seem to fit more comfortably within the statutory phrase. As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a "long-extant statute" to "bring about an enormous and transformative expansion in [their] regulatory authority without clear congressional authorization." Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014).

The NYT obtained responsive memos from Justices Breyer, Kagan, and Sotomayor, and a memos supporting the Chief's position from Justice Alito and, pivotally, Justice Kennedy. The memos make clear that, post-UARG, the conservative were very wary of efforts by the EPA to aggrandize its own authority in pursuit of greenhouse gas emission reductions. The conservative justices did not want judicial review of agency action to be irrelevant. As Justice Alito wrote:

A failure to stay this rule threatens to render our ability to provide meaningful judicial review--and by extension our institutional legitimacy--a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. If we fail to stay the rule and maintain the status quo our resolution of the merits will not matter because the regulated parties will have complied Instead of robust judicial review our opinion will be a mere postscript.

Justice Kennedy ultimately concurs on the grounds that, if a stay of the CPP is inevitable (suggesting he agreed with the Chief's preliminary view of the merits), it might as well issue now.

The liberal justices, for their part, were wary of setting a precedent of this sort and suggested that an order could deny the stay, but suggest states seek extensions of the regulatory deadlines before asking the Supreme Court to take action (an approach similar to what the Court would later do in the Juliana litigation--deny relief with the suggestion that others should reconsider their position). While opposing a stay here, it is not clear any of the liberal justices (or, for that matter, any of the conservative justices) understood how issuing a stay here would encourage litigants to pursue such relief more aggressively in the future.

Note that had the D.C. Circuit stayed the CPP (which would have been appropriate given the lead times), the Court would not have been in the position of considering any of these questions. This is interesting because had the D.C. Circuit not later insisted on issuing its opinion invalidating the Trump Administration's repeal of the CPP on the eve of President Biden's inauguration in 2021, we would never have gotten the Supreme Court's ultimate decision invalidating the CPP in West Virginia v. EPA (which I dissected here). It was the D.C. Circuit's insistence on having its say in 2021, and issuing a decision that put the CPP back in force (even as the court stayed its mandate), that allowed the litigation against the CPP to continue.

The NYT does not reveal where the memos came from, but the memos contain one potential clue. All of the memos appear to be photocopies of the original documents on letterhead with the authoring justice's initials or signature--save one. The memo from Justice Sonia Sotomayor's chambers is not on letterhead, has no signature or initials, and (the NYT notes) appears to have the wrong date (likely a typo--"16" instead of "6")[Alternatively, the 16 could have been autodated when printed later on plain paper.] This suggests the source had access to a non-final or non-circulated version of the Sotomayor memo, but the NYT gives no indication of why that might be.

If the memos came from Sotomayor's chambers--and I stress the if--this would be the second climate-related case in which something unusual happened in Justice Sotomayor's chambers. The other was AEP v. Connecticut, when Sotomayor was on the U.S. Court of Appeals for the Second Circuit. Then-Judge Sotomayor was on the AEP panel, and as I noted at the time, the case sat for years after argument and supplemental briefing without decision. The delay was so long that the issue was raised at her confirmation hearing. The decision ultimately issued after Sotomayor was confirmed, without her participation. The Supreme Court then unanimously reversed that opinion with Justice Sotomayor recused.

The post Leaked Supreme Court Memos Reveal Why Court Stayed Clean Power Plan (Setting Important "Shadow Docket" Precedent in the Process) appeared first on Reason.com.

[Eugene Volokh] Call Him Judge Ho Ho Ho

Eugene Volokh — Sat, 18 Apr 2026 12:01:55 +0000

[A nice little Christmas present for the lawyers + "You should be spending time with family and friends over the holidays."]

From an order last Dec. 11 (but just made available on CourtListener yesterday) by Magistrate Judge Andrew Edison (S.D. Tex.):

Earlier today, I issued a Memorandum and Recommendation [Dkt. 113]. Under the rules, objections are due on December 29, 2025. I do not want anyone working the last two weeks of the year. You should be spending time with family and friends over the holidays. I will, therefore, move the deadline for the parties to object to my Memorandum and Recommendation to Friday, January 9, 2026. Happy holidays to all!

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[Josh Blackman] Today in Supreme Court History: April 18, 1775

Josh Blackman — Sat, 18 Apr 2026 11:00:49 +0000

4/18/1775: Paul Revere's ride.

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[Eugene Volokh] Open Thread

Eugene Volokh — Sat, 18 Apr 2026 07:00:00 +0000

[What’s on your mind?]

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[Ilya Somin] Virginia's Unconstitutional Effort to Strip Property Tax Exemptions From Pro-Confederate Groups

Ilya Somin — Fri, 17 Apr 2026 22:56:55 +0000

[The groups and their ideology are awful. But Virginia's policy violates the First Amendment. Allowing it to stand could set a dangerous precedent.]

Logo of the United Daughters of the Confederacy. (NA)

Earlier this week, Virginia Governor Abigal Spanberger signed into law a bill stripping property tax exemptions from various pro-Confederate nonprofit organizations:

On Monday, Virginia's governor, Abigail Spanberger, a Democrat and the state's first female governor, signed into law a bill that eliminates tax exemptions for organizations connected to the Confederacy.

HB167, passed by Democrats in the Virginia house and senate, specifically removes the Virginia division of the United Daughters of the Confederacy, the Stonewall Jackson Memorial, the Virginia division of the Sons of Confederate Veterans and the Confederate Memorial Literary Society, along with other groups, from the state's list of organizations that are exempt from state property taxes.

While well-intentioned, this law nonetheless violates the First Amendment. I do not say that because I have any sympathy for the groups in question. I hate the Confederacy and all it stood for, oppose attempts to whitewash its reputation by claiming it wasn't established for the purpose of defending the evil institution of slavery, support taking down Confederate monuments, and oppose right-wing efforts to restore restore military base names honoring Confederate generals.

Thus, I very much sympathize with what the New York Times describes as the bill sponsors' desire to "distance Virginia from its Confederate past." As a Virginia resident and a state employee (professor at a Virginia state university), I agree the state should repudiate the Confederacy rather than honor it.

But this is not the way to do it. It seems obvious the groups in question lost their tax exemptions because of state officials' hostility to their views. While those views are indeed odious, eligibility for tax exemptions should not depend on viewpoints. Making them so dependent violates the First Amendment, which - among other things - forbids conditioning government benefits and exemptions on political and social views.

Imagine a red state legislature enacting bill discriminatorily denying nonprofit tax exemptions to left-wing "social justice" groups, or groups promoting racial minority group rights (such as the NAACP), groups promoting abortion rights, and so on. Such a bill would obviously violate the First Amendment. The Virginia law targeting pro-Confederate groups is much the same, differing only in its ideological valence.

One could try to defend the bill on the grounds that it was just amending a preexisting law specifically singling out these groups for property tax exemptions. If the state legislature can pass a law singling out certain groups by name for tax exemptions, then it can also repeal it.

I agree that the state is not required to continue these property tax exemptions forever. But there is an important difference between the original law, and this new one. The preexisting law gave property tax exemptions to a wide range of nonprofit civic and historic preservation groups, not just those espousing a particular ideology. The groups appear to have been chosen based on function not viewpoint. Here is the complete list of organizations granted exemptions, which includes veterans groups, historic preservationists, groups promoting the arts, and more:

the Association for the Preservation of Virginia Antiquities, the Association for the Preservation of Petersburg Antiquities, Historic Richmond Foundation, the Confederate Memorial Literary Society, the Mount Vernon Ladies' Association of the Union, the Virginia Historical Society, the Thomas Jefferson Memorial Foundation, Incorporated, the Patrick Henry Memorial Foundation, Incorporated, the Stonewall Jackson Memorial, Incorporated, George Washington's Fredericksburg Foundation, Home Demonstration Clubs, 4-H Clubs, the Future Farmers of America, Incorporated, the posts of the American Legion, posts of United Spanish War Veterans, branches of the Fleet Reserve Association, posts of Veterans of Foreign Wars, posts of the Disabled American Veterans, Veterans of World War I, USA, Incorporated, the Society of the Cincinnati in the State of Virginia, the Manassas Battlefield Confederate Park, Incorporated, the Robert E. Lee Memorial Foundation, Incorporated, the Virginia Division of the United Daughters of the Confederacy, the General Organization of the United Daughters of the Confederacy, the Memorial Foundation of the Germanna Colonies in Virginia, Incorporated, the Lynchburg Fine Arts Centers, Incorporated, Norfolk Historic Foundation, National Trust for Historic Preservation in the United States, Historic Alexandria Foundation, and the Lynchburg Historical Foundation.

The new law strips property tax exemptions from the pro-Confederate groups, while leaving them in place for all the others. That's pretty obvious discrimination based on political ideology. The Virginia state legislature could end this tax exemption for all the groups in question, or reduce it in various ways. It could eliminate some groups but not others based on nonideological criteria. But it cannot do so based purely on the views of the groups in question.

Such viewpoint discrimination with respect to tax exemptions and government benefits is a potentially very dangerous tool that government can use to penalize opposition (even as it rewards its supporters). If courts were to uphold the Virgina law against First Amendment challenges, it would set a dangerous precedent that state and federal officials of various political stripes could exploit to target their opponents.

Even if you trust our current Democratic governor and state legislature with this kind of power, I bet you don't have similar confidence in the Republicans (and vice versa). The Trump Administration has been trying to find ways to strip tax exemptions from nonprofit groups opposed to its agenda, including various left-wing ones. If you think Trump's efforts along these lines are unconstitutional (and they are), then the same reasoning applies to the new Virginia law.

The truth is neither Democratic politicians nor Republican ones can be trusted with the authority to dole out and remove tax exemptions and other benefits based on ideology. That's one of the reasons why we have a First Amendment in the first place.

And here, as elsewhere, freedom of speech cannot be limited to those who espouse viewpoints we like. As Supreme Court Justice Oliver Wendell Holmes famously put it, this right must include "freedom for the thought that we hate." It must extend even to those with deeply odious and reprehensible views - including, in this case, apologists for the Confederacy.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

John Ross — Fri, 17 Apr 2026 19:30:59 +0000

[ICE, AirPods, and the No Fly List]

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

New Case Alert! Before dawn, Cathy George awakes to a squad of heavily armed officers banging on the door to her Georgia home and aiming rifles at her. They're looking for a fugitive. Yikes! Problem 1: The fugitive was arrested months earlier—in Indiana—and remains behind bars. Problem 2: He had no connection to Cathy. Now, represented by IJ, Cathy is suing over the raid, because when officers screw up that badly, the Constitution promises more accountability than "oops, we made a mistake." Read more here.

New on the Bound By Oath podcast: A history of Rooker-Feldman, a slightly treasonous doctrine that we hope SCOTUS is going to blow to smithereens next week.

D.C. Circuit (over a dissent): We have exclusive jurisdiction over challenges to final TSA decisions refusing to take somebody off the No Fly List, which means that the district court wasn't allowed to hear this guy's lawsuit demanding to be taken off of the Terrorist Watchlist, since taking him off the Terrorist Watchlist would necessarily take him off the No Fly List. Instead, his only remedy is to file a petition asking us to overturn the TSA's final order and take him off the No Fly List.
D.C. Circuit (same day): Also, we're denying that same guy's petition asking us to overturn the TSA's final order and take him off the No Fly List.
Many have been following the escalating tensions between the feds and courts about the former's efforts to remove members of the Venezuelan gang Tren de Aragua to El Salvador. Well, the D.C. Circuit has now mandamus-ed a second time. The newest "extraordinary remedy" puts an end to the criminal contempt proceedings, deeming it unnecessary as the district court already knows who ordered the planes to depart (Kristi Noem) and the TRO language cannot support criminal contempt charges. Concurrence: Slicing and dicing the Saturday evening emergency hearing transcript and the subsequent order shows why the feds didn't violate the order in the first place. Dissent: "Contempt of court is a public offense, and the fate of our democratic republic will depend on whether we treat it as such."
Cops in Canóvanas, Puerto Rico, spy youths potentially dealing drugs. Upon confrontation, the youths flee. One cop shoots a 17-year-old in the back. Another allegedly pistol whips him. Later the cops falsify reports. But word gets out, feds prosecute, and convictions follow. First Circuit: The pistol-whipper should have been able to cross-examine the whippee. Vacated and remanded on that count (but not three others).
Circuit split alert! The First Circuit (splitting with the Tenth) holds that Maine's law requiring a firearm seller to wait at least 72 hours before delivering a purchased firearm doesn't infringe the right to "keep" or "bear" arms because the purchaser remains free to "keep" and "bear" them three days after buying them.
Second Circuit (unpublished): The Supreme Court's decision in Bruen tells us the Second Amendment extends to weapons in common use for self-defense, but whether a weapon is in common use seems like the kind of thing you should have tried to prove at summary judgment, not the kind of thing you should be trying to prove by citing stuff to us in your appellate briefs.
The Fourth Circuit (en banc) vacates a preliminary injunction that had prevented DOGE staffers from accessing confidential Social Security data and in so doing manages to generate six different opinions fighting about everything from whether the Supreme Court's unexplained emergency-docket orders count as "precedent" to whether preliminary-injunction opinions should look more like word problems from your junior-high math class, all of which is really extremely fun reading for the really extremely small group of people who like that sort of thing.
Plaintiff: Sure, the case law says school officials have leeway to search students' belongings, but you can't apply that pre-digital precedent to the much more intrusive search of a teenage student's cell phone (on which the assistant principal found an explicit photo of a different teenager). Fourth Circuit: That's a real interesting argument you've got there; it's a shame you've waived it. Also, you're wrong.
Before searching for the names of a Supreme Court justice in a hospital database and then posting the results online, you might want to read this tale of caution from the Fourth Circuit, which ends with a 24-month visit to federal prison.
Fairfax County, Va. police arrange a controlled drug buy in the parking lot of a shopping complex. Once the target arrives, he becomes suspicious and begins to drive away. A half dozen detectives pursue him in unmarked vehicles, ram his car, block him in it, and shoot him. (They feared that he was reaching for a gun; he was unarmed.) District court: reasonable response, no excessive force here. Fourth Circuit: Not so fast. The man was driving slowly out of a parking lot, posing no danger to anybody; police hadn't even given him a chance to pull over first; and there's a dispute over whether he reached for his console. Try again.
The rara avis case in which a court of appeals (here, the Fifth Circuit) uncovers a reversible error in an Anders appeal. Concurrence: This means the "party-presentation principle" is totally bunk and shouldn't apply in any context ever, right? Right?
No American has been able to legally distill consumable spirits at home since 1868. That ends now, says the Fifth Circuit, as the law violates the Constitution's Taxation and Necessary and Proper Clauses. (On appeal, the feds didn't challenge the district court's conclusion that the law also violates the Commerce Clause, so Wickard lives to fight another hay.) Let the fun be-gin.
Most criminal defendants try to avoid being sentenced under the Armed Career Criminal Act, which sets a 15-year mandatory minimum for certain defendants if they have three previous convictions for certain qualifying offenses. Defendant: In the district court, I pleaded guilty and accidentally agreed that I had three qualifying offenses. But on reflection, I had only two! So my 212-month sentence is a mistake. Sixth Circuit: You and your lawyer should've been more careful. Sentence affirmed. Dissent: This seems like an error we should correct.
As part of their investigation into an online collection of sexually explicit images of local underage girls, cops in Toulon, Ill., send a link to the files to their IT guy, for help in identifying the victims. He does. Huzzah! But turns out he's a collector of child sexual-abuse material in his own right. Yikes! And he keeps the photos and distributes them. Double yikes. Seventh Circuit: This whole situation seems to have been pretty shambolic, but the victims don't have a due-process claim against the cops who gave the IT guy access to their photos. (The guy is now serving a 35-year prison sentence, and claims against him personally are proceeding in the district court.)
Find someone who loves you as much as the Seventh Circuit loves excoriating lawyers for inaccurately certifying the completeness of the short appendix required by Circuit Rule 30.
The key to a life well lived is to find a hobby that you relish as much as the Seventh Circuit relishes castigating lawyers for inaccurately certifying the completeness of the short appendix required by Circuit Rule 30.
Milwaukee man is convicted of kidnapping and sexual assault after a bailiff improperly tells the jury they're not allowed to deadlock. The conviction is overturned, and the man sues both the loose-lipped bailiff and another bailiff who heard the remark but didn't intervene. Seventh Circuit: We don't have jurisdiction to decide if the bystander bailiff gets qualified immunity because the district court didn't make a definitive ruling. Dissent: All we need to know is that the district court didn't grant immunity, and here the plaintiff didn't even try to meet his burden to overcome it.
Courts across the country are inconsistent about whether plaintiffs may proceed pseudonymously in suits challenging university disciplinary proceedings for sexual assault. But here, the Seventh Circuit adheres to its distinctively strong presumption against pseudonymous litigation: John Doe may either dismiss his pending appeals or have them resolved under his real name.
After a carjacking at a St. Louis County, Mo. Waffle House, police use the "Find My" app to track down AirPods that were in the stolen car. They get a warrant for the house purportedly containing the AirPods, smash in, force the mother (in her underwear) and children to go outside, punch a hole in a wall, and otherwise ransack the place. And discover it and the occupants are unconnected to the crime. Turns out the AirPods were in the street out in front. Eighth Circuit: Find My and qualified immunity pair nicely.
In the Ninth Circuit, here's a generally gross story of an ICE agent convicted for trying to have sex with what he thought was a 13-year-old prostitute. (Spoiler: The "13-year-old prostitute" was also federal law enforcement.)
What do you get when you mix Kevin Costner's Yellowstone with slightly less murder and slightly more promissory estoppel? This sprawling litigation between a conservancy nonprofit and a financier who desperately wants to build a 2,500-square-foot guesthouse on his Wyoming ranch. Tenth Circuit: The conservancy is not promissorily estopped based on a conversation its director had with the financier on the deck of the Teton Pines Country Club, at which (the financier insists) the director said a guesthouse could be built so long as it wasn't called a "guesthouse."
This Tenth Circuit case is interesting for two reasons. One, it accepts the gov't's concession that it's plain error to sentence an assault defendant more harshly because he was an off-duty police officer. Two, it's kind of the 1997 Julia Roberts movie My Best Friend's Wedding—but an R-Rated version where Rupert Everett almost gets shot.
"Lincoln may have freed the slaves, but I'm keeping you." As a matter of law, that's an off-color comment rather than a ground to find an objectively hostile work environment. Query, though, whether the Eleventh Circuit should have addressed the speaker's conflation of the Emancipation Proclamation and the Thirteenth Amendment.
And in en banc news, the Ninth Circuit will not reconsider its decision that an objection to COVID-19 testing was not sufficiently connected to religious doctrine to state a claim under Title VII. Fans of dissentals will be chuffed.

New Case Alert! In San Jose, Cal., drivers have to navigate a network of nearly 500 automated license plate readers that the police department installed all over the city. These high-tech surveillance cameras blanket hospice facilities, churches, and countless other sensitive places, and they snap hundreds of millions of warrantless images every year, instantly converting them into easily searchable data that thousands of gov't employees can access on demand. Yikes? Yikes. Fourth Amendment Yikes, to be precise. Which is why IJ has entered the fray

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[Josh Blackman] A Flashback On The Two-Year Clause

Josh Blackman — Fri, 17 Apr 2026 15:23:02 +0000

[How an obscure clause made me realize my future was in academia.]

People often ask me if I always wanted to be a law professor, or if I always knew I wanted to be a lawyer. The answer to both questions is no. My entire youth focused on technology. I went to Staten Island Technical High School, a leading engineering high school. For college, I received a degree in Information, Sciences & Technology at Penn State. I did not take a single constitutional law or political science class in my undergraduate education. (I took one class on business law, but that doesn't really count.)

After graduation, I would begin working at the Department of Defense in Arlington on network security. During the summer between my Junior and Senior year, I decided to apply law school to focus on Intellectual Property. It was not a well thought-out decision. I had no lawyers in my immediate family and I knew nothing about IP. But law schools published these shiny pamphlets promising salaries of $160,000, so I thought it could work well.

I studied for the LSAT for a few weeks. I took two or three sample tests, and did well enough. I took the actual LSAT in October of my senior year and did not plan to take it again. I then applied early decision to George Mason Law School as an evening student. My plan was to work during the day at my office in Arlington, and go to class at night. Mason had a well-regarded IP program. I was aware of the conservative and libertarian reputation (Professor Walter Williams would often guest host on the Rush Limbaugh show), but that is not why I applied there. I did not apply anywhere else. I discussed this background in an article, From Being One L to Teaching One L.

During my 1L year, I fell in love with Constitutional Law. Indeed, for evening students, ConLaw was not taught till the third semester. But I regularly attended FedSoc events on campus and the National Convention. I was hooked. For my 1L summer, I attended the Institute or Justice Bootcamp (as it was then called), and my eyes were opened. I still remember the moment when Clark Neily convinced me that the war on drugs was a mistake. (Clark also told me about this new Second Amendment case he was working on, Parker v. District of Columbia.) Still, I did not even conceive that a career in constitutional law was possible for me. The most likely path, I thought, would be BigLaw.

I applied for on campus recruiting during the start of my 2L year. (I realize today firms recruit students with no grades, but there were still timelines in 2007.) I managed to secure a summer associate position with a D.C. firm. I was beyond thrilled for the opportunity, and the compensation. At the time, the $3,500/week salary was more than double what I was making at the DOD. In the lead-up to the summer, the firm circulated a "get to know you" questionnaire. One of the questions was "What are you interested in?" Of course, I wrote "The Constitution." I didn't give the form much thought.

Summer arrived. After the first day of work, we had a cocktail reception at a swanky club nearby. (To this day, I feel guilty about how much money the firm spent on entertaining law students.) One of the partners came over to me and asked "Were you the person who said he was interested in the Constitution?" He did not mean it in a good way. I said, "Yes." He replied, "The Constitution has nothing to do with my practice." Again, this was my first day on the job, where I was trying to impress the partners to make me a permanent offer.

Perhaps the prudent course for a young Josh would have been to make a joke, and laugh it off. But that's not what I did. I knew the lawyer worked on military contracts. I whipped out my pocket Constitution, and I turned to the Armies Clause in Art. I, § 8, Cl. 12, the Armies Clause. I read it, " The Congress shall have Power . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. . . ." I said every payment that you work on is authorized by this clause. The partner looked back at me, dumbfounded. He had built a successful practice on military contracts, though I doubt he ever realized or cared what the constitutional basis was those contracts.

At that moment, I realized my future was not in Big Law. The rest of the summer was enjoyable, but I regularly felt something was lacking. For example, I was working on a memo in a government contracts case, and I realized there was a notice problem, so I raised a Due Process argument. The partner told me (correctly) that constitutional issues could not be raised in this administrative proceedings, and to stick to the Federal Acquisition Regulation (FAR). By the middle of the summer, I decided that I wanted to clerk. (Back in the day, you would apply to clerkships during your 2L summer.) During my 3L year, I realized that academia would be my path. And I pursued that path. The rest is history.

In a funny way, I may owe my entire career to the obscure Armies Clause. The irony is that the "Two Years" provision of this clause has largely been ignored. Appropriations for the military routinely stretch beyond two years. I have been aware of this problem, but never gave it much thought.

That was, until I saw a new article titled Reviving the Military's Term Limit. Professors Matthew B. Lawrence and Mark Nevitt argue that the two-year limitation was obliterated by 1904 Solicitor General opinion. If this clause's original meaning is restored, then the partner (who may not still be in practice) will realize how the Constitution affects his work.

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[Jonathan H. Adler] Will the Eleventh Circuit Allow the Endangered Species Act to Commandeer the Florida Department of Environmental Protection?

Jonathan H. Adler — Fri, 17 Apr 2026 14:04:35 +0000

[A pending case will test whether courts are willing to enforce the anticommandeering doctrine in the context of environmental protection. ]

New Hampshire is not the only state subject to court-ordered commandeering. Next week, the U.S. Court of Appeals for the Eleventh Circuit will hear oral argument in Bear Warriors United v. Lambert, in which Florida is appealing a district court order effectively commandeering the state under the Endangered Species Act.

Bear Warriors United (BWU) is an environmental organization "dedicated to defending Florida's wildlife and serving as a powerful voice for nature." Among the species BWU seeks to protect is the manatee, which is currently listed as a "threatened" species under the Endangered Species Act (ESA).

In 2022, BWU filed suit against the Florida Department of Environmental Protection (FDEP) alleging that it was violating the ESA by failing to adopt and enforce sufficiently stringent regulations governing nitrogen discharges from septic tanks and wastewater treatment plants into the Indian River Lagoon, which is frequented by manatees. This failure, BWU alleges, contributes to eutrophication and the loss of seagrasses upon which the manatees rely and is thus a "take" under Section 9 of the ESA, which prohibits actions that "harm" listed species.

At heart, BWU's claim is that the FDEP is "taking" manatees because it is failing to control the private and other activities that threaten manatee populations. As the district court noted, it is "FDEP's ongoing failure to use its authority to regulate" more stringently that is at issue. Therein lies the problem.

There is reasonable debate about the extent to which the ESA's definition of harm encompasses conduct that affects species indirectly. The Supreme Court embraced a relatively broad definition of "harm" in the Sweet Home decision that encompasses habitat modification that, in turn, impairs the feeding, breeding or nesting activity of listed species. Relying upon this definition, some courts have concluded that omissions--in this case, failure to prevent activities that could adversely affect species--qualify as "harm." This is a controversial conclusion, however, and the Trump Administration has proposed narrowing that definition.

Whatever the proper definition of "harm" is under the ESA, BWU's claim has a larger problem: Under its theory, state governments are obligated to use their regulatory authority to enforce a federal regulatory scheme. This is not a case in which effluent from a state-run sewage treatment plant or other state activities are allegedly harming a listed species. It instead involves a state failing to use its sovereign regulatory authority in a manner that serves the federal government's goals. This is textbook commandeering. Thus even if one is inclined to accept the broad definition of "harm" that some courts have accepted, it cannot be enforced against state governments in this fashion.

The district court dismissed Florida's commandeering concerns in a cavalier (and somewhat incoherent) fashion. After noting in one order that "the anticommandeering doctrine does not bar federal laws that 'regulate state activities, rather than seeking to control or influence the manner in which States regulate private parties'" (quoting Reno v. Condon), the court proceeded to accept BWU's argument that the ESA's take prohibition could be used to control how FDEP regulates private parties. In another order the court correctly noted that "the anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage" (quoting Murphy v. NCAA), but somehow missed that regulating private septic systems and wastewater treatment plants is not "an activity in which both States and private actors engage." It is, rather, precisely the sort of exercise of sovereign authority that only governments engage in, and is thus precisely what the anticommandeering doctrine protects from federal control.

This is not the first time a lower court has interpreted the ESA in a manner that violates the anticommandeering doctrines. In Strahan v. Coxe (1997), the U.S. Court of Appeals for the First Circuit concluded Massachusetts could be required to revoke licenses and permits for gillnet and lobster pot fishing under the ESA and Marine Mammal Protection Act without violating the anticommandeering doctrine. In the First Circuit's view, this was just federal supremacy in action, and the state was merely required to comply with federal law. But this misunderstands the dynamic. There is no question a state cannot immunize private action from federal prohibition, but this does not mean a state can be required to regulate or inhibit activity the federal government wishes to control, and this is true even if the state chooses to act within the relevant policy space. This is as true of gillnets and nitrogen discharges as it is of marijuana and gambling.

Although Strahan was wrong (as I discussed here at pp. 428-30), district courts have largely followed the First Circuit's reasoning. This has occurred even though, in 2018, in Murphy v. NCAA, the Supreme Court expressly held that the anticommandeering doctrine prevents the federal government from barring states from permitting a federally targeted activity (in that case, gambling) under state law.

The same principle applies in the environmental context. The federal government is free to regulate nitrogen discharges and other activities that harm listed species, and even to authorize citizen suits to assist in federal law's enforcement. It cannot require states to prohibit such activities, however. And just because a state has chosen to create its own regulatory apparatus, that apparatus cannot be required to apply standards dictated by federal law. Thus however expansively one is inclined to interpret the ESA's take prohibition, it cannot be applied as the district court did here.

I will be curious to hear how the Eleventh Circuit engages with these arguments next week, and whether it recognizes the errors of the First Circuit's analysis. There seems to be lots of confusion about commandeering these days. I also have a draft manuscript ("Conservation Commandeering") which goes into these arguments in greater depth. It will go up on SSRN soon. Until then, stay tuned.

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[Eugene Volokh] Not Judge Judy, Juror Judi—But "Stupid Mistake" Isn't "Actual Malice" for Libel Purposes

Eugene Volokh — Fri, 17 Apr 2026 12:01:36 +0000

From Scheindlin v. Accelerate 360, LLC, decided today by Judge Kyle Dudek (M.D. Fla.):

For many decades, Plaintiff Judy Sheindlin—known to millions of daytime television viewers simply as Judge Judy—has cultivated a public reputation as a tough-on-crime, no-nonsense arbitrator. The defendants in this case, A360 Media, LLC and Accelerate360, LLC (collectively "A360"), operate in a very different sphere: they publish and distribute celebrity news and tabloids, including the National Enquirer and In Touch Weekly.

In April 2024, their worlds collided. A360 published articles claiming that Sheindlin had appeared in a true-crime docuseries to advocate for the resentencing of Lyle and Erik Menendez, the notorious brothers convicted of murdering their parents. The articles reported that Scheindlin felt the brothers had been railroaded. And they quoted her as claiming the trial was "rigged."

It turns out none of this was true. An A360 reporter had watched a clip from the docuseries and mistakenly identified a different older woman—an alternate juror named Judi Zamos—for the famous television judge. Predictably, Sheindlin was not pleased. She filed this defamation lawsuit, alleging that the false reports subjected her to public ridicule and tarnished her carefully curated brand.

A360 now seeks summary judgment. It readily admits the stories were wrong, but argues that the misidentification was an honest, if unfortunate, mistake. Because of this, A360 contends that Sheindlin cannot clear the high constitutional hurdle of proving actual malice—a strict requirement for public figures suing for defamation. Furthermore, A360 argues that Sheindlin cannot prove she suffered any actual, compensable damages under Florida law.

Because the First Amendment requires a showing of actual malice rather than mere negligence, and because Sheindlin has failed to produce evidence meeting that heavy burden, her defamation claim must fail. A360's motion for summary judgment is thus GRANTED….

Here's the court "side-by-side comparison of the two" women's images:

And a bit more:

How did a reporter make such a colossal mix-up? The misidentification traces back to a promotional pitch. In March 2024, Fox News contacted A360 about an upcoming docuseries on the Menendez brothers. The pitch included a link to the show's trailer. That trailer featured a brief clip of an older woman with short hair, wearing a black top with a decorative white collar, who opined that the brothers' trial was rigged. The woman was not identified by name in the video.

Upon watching the trailer, A360 reporter Michael Jaccarino jumped to a conclusion: the woman was Judge Judy. He based this on her clothing—which he thought resembled Sheindlin's signature judicial robe and lace collar—and the fact that she was commenting on a high-profile legal matter. Jaccarino admitted he had not seen a photograph of Sheindlin in years and simply assumed she had aged into the woman on his screen.

Seeking to flesh out his story, Jaccarino emailed Fox asking for more footage of the "Judge Judy interview." A Fox public relations representative replied with a link to a longer, 40-second clip, telling Jaccarino to "please see below for a link to the Judge Judy clip."

This is where the investigation fatally stalled. In this second clip, an on-screen caption appears for roughly three seconds, explicitly identifying the interviewee as "Judi Zamos," an alternate juror from the first Menendez trial. Jaccarino testified that he completely missed this flashing red warning sign. His explanation was simple: he was looking down at his keyboard, laser-focused on transcribing the audio rather than watching the screen.

Operating under the unshaken assumption that he had his star subject, Jaccarino pressed forward with the article. He researched the gruesome details of the murders and called a defense attorney for a quote on the current legal proceedings. What he did not do, however, was conduct a basic internet search coupling Sheindlin's name with the Menendez brothers to verify the connection. Nor did he follow standard journalistic practice by reaching out to Sheindlin or her representatives for comment prior to publication.

The editorial review process provided no safety net. Jaccarino sent his draft to his editor, Michael Hammer, and included the link to the video clip—the very clip that identified the speaker as Judi Zamos. Hammer never clicked the link or watched the video. He testified that he simply took his reporter at his word. From there, the story was cleared for the National Enquirer and In Touch Weekly….

Despite this, the court concluded (legally correctly, I think) that there wasn't enough evidence "proof that a defamatory statement was published with either 'actual knowledge of its falsity or with a high degree of awareness of its probable falsity'" (so-called "actual malice") for the case to go forward:

A publisher's failure to investigate a statement's accuracy alone won't cut it. Nor will "even an extreme departure" from reasonable journalistic standards…. Against this backdrop, it is apparent that A360 merely made a genuine (though stupid) mistake.

Charles D. Tobin, Jacquelyn N. Schell, Bradley Gershel, and Saumya Vaishampayan (Ballard Spahr LLP) represent defendants.

The post Not Judge Judy, Juror Judi—But "Stupid Mistake" Isn't "Actual Malice" for Libel Purposes appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: April 17, 1978

Josh Blackman — Fri, 17 Apr 2026 11:00:16 +0000

4/17/1978: Penn Central Transportation Corporation v. New York argued.

The post Today in Supreme Court History: April 17, 1978 appeared first on Reason.com.

[Eugene Volokh] Open Thread

Eugene Volokh — Fri, 17 Apr 2026 07:00:00 +0000

[What’s on your mind?]

The post Open Thread appeared first on Reason.com.

[Josh Blackman] Trump Tweets About Standing!

Josh Blackman — Fri, 17 Apr 2026 04:38:17 +0000

[Judge Leon should check the President's social media!]

A few days ago, the D.C. Circuit sent the East Wing case back down to Judge Leon. In my view, the plaintiffs clearly have no standing. Judge Rao's separate opinion cogently explains why.

Judge Leon, undeterred, ruled against Trump again! The White House can continue with "underground" construction but not "aboveground" construction! I suppose Judge Leon is an expert in construction, as he seems to think these two levels can be separated! His new order had fewer exclamation points, but he still declined to address standing. Should this case get to SCOTUS, it will be very easy for the proceduralists to smack down this ruling on standing grounds.

Indeed, even President Trump gets the standing analysis. In a series of social media posts, Trump explains why the plaintiffs in this case lacks standing. I never know how much of Trump's tweets are his and how much come from his lawyers. But at a minimum, these postings (which seem to have been made aboard Air Force One) suggest Trump understands the jurisdictional issues.

Here, Trump points out (correctly) that the only possible plaintiff with an injury is a woman who walks her dog near the White House:

The person who filed the meritless and lawless suit on the desperately needed White House Ballroom, being built as a GIFT to America (without Tax Dollars!), a woman walking her dog, has absolutely NO STANDING to bring such a monumentally important case against our Country. The Trump Hating Judge's opinion is radically different from his first opinion, that was issued weeks ago, while still being unlawful and ambiguous, which never even addressed her COMPLETE lack of Standing. Every Political "Pundit" has said this case is meritless, even a JOKE, but it's not a joke to me, or the people of America. Too much hard work, time, and money spent in order that a Judge can claim that he ruled against "DONALD TRUMP," something which I have gotten very used to, BUT WILL NOT ACCEPT! President DJT

Here Trump points out (correctly) that Judge Leon once again does not even mention standing:

The out of control Trump Hating, Washington, D.C. District Court Judge, who doesn't want to accept a $400 Million Dollar GIFT of one of the most beautiful Ballrooms anywhere in the World, desperately needed by the White House and its future Presidents (Due to time constraints, I will barely get to use it!), wants me to build the "underground" portion of the Ballroom, without the "above ground" portion, but the underground doesn't work, isn't necessary, and would indeed be useless, without the above ground sections. The underground portion is wedded to, and serves, the upper portion, including the Bomb Shelters, a State of the Art Hospital and Medical Facilities, Protective Partitioning, Top Secret Military Installations, Structures, and Equipment, Protective Missile Resistant Steel, Columns, Roofs, and Beams, Drone Proof Ceilings and Roofs, Military Grade Venting, and Bullet, Ballistic, and Blast Proof Glass. It's all tied together as one big, expensive, and very complex unit, which is vital for National Security and Military Operations of the United States of America! The Judge's decision, which doesn't even discuss the vital subject of STANDING, of which the plaintiff has none, severely jeopardizes the lives and welfare of the people who work, and will be working, at the White House — including all future Presidents of the United States, and their families. President DONALD J. TRUMP

During oral argument, Judge Leon apparently refused to discuss standing, and told the lawyer from DOJ to take up standing with the Court of Appeals.

This post goes more to the merits, and explains the underground construction cannot be separated from the aboveground construction. Standing comes in at the end.

The White House doesn't have a Ballroom (No Taxpayer Money!), which Presidents have desperately wanted and desired for over 150 years, but a Trump Hating, Washington, D.C. District Court Judge, a man who has gone out of his way to undermine National Security, and to make sure that this Great Gift to America gets delayed, or doesn't get built, is attempting to prevent future Presidents and World Leaders from having a safe and secure large scale Meeting Place, or Ballroom, one with Bomb Shelters, a State of the Art Hospital and Medical Facilities, Protective Partitioning, Top Secret Military Installations, Structures, and Equipment, Protective Missile Resistant Steel, Columns, Roofs, and Beams, Drone Proof Ceilings and Roofs, Military Grade Venting, and Bullet, Ballistic, and Blast Proof Glass —which all means that no future President, living in the White House without this Ballroom, can ever be Safe and Secure at Events, Future Inaugurations, or Global Summits. This Magnificent Space will allow them to carry out their vital duties as the Leader of our Nation. Furthermore, the Ballroom, which is being constructed on budget and ahead of schedule, is needed now. Almost all material necessary for its construction is being built and/or on its way to the site, ready for installation and erection. Much of it has already been paid for, costing Hundreds of Millions of Dollars. If somebody, especially one with no standing, had a complaint — Why wasn't it filed many months earlier, long before Construction was started? The Public Record was open for all to see. Everybody knew that it was planned, and going to be built. This highly political Judge, and his illegal overreach, is out of control, and costing our Nation greatly. This is a mockery to our Court System! The Ballroom is deeply important to our National Security, and no Judge can be allowed to stop this Historic and Militarily Imperative Project. Thank you for your attention to this matter! President DONALD J. TRUMP

Finally, Trump thinks that Judge Leon works for Chief Judge Boasberg, who was MANDAMUSED.

A Trump Hating Judge, for the first time in History, wants Congress to pay Hundreds of Millions of Dollars for a Glorious Ballroom, instead of accepting Donations from Great American Companies and Citizens. This is a first — In other words, he wants Tax Payers to pay for the Ballroom, instead of Donors and Patriots! The Ballroom is FREE to our Country, A GIFT, and vital for our National Security. This Judge, who works for another Judge who was just MANDAMUSED for the unfair and biased way he treats me, should be ashamed of himself! President DONALD J. TRUMP

Know who can't get mandamused? The President. Say what you will about Trump, but he gets procedure.

The post Trump Tweets About Standing! appeared first on Reason.com.

[Orin S. Kerr] The Slowing of Fourth Amendment Law, and Now Advisory Opinions: A Comment on Chatrie v. United States

Orin S. Kerr — Thu, 16 Apr 2026 21:13:53 +0000

[The second in a series.]

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

In this second post, I want to focus on how the Court hasn't handed down a case on the Fourth Amendment and new technology in a long time, and that it is now doing so in what amounts to an advisory opinion. These two things are related, I think. And for those of us interested in how Fourth Amendment law develops, they're related in an important way.

First, consider the timing. Chatrie comes after a surprisingly long gap in Supreme Court attention to how the Fourth Amendment should apply to new technologies. It has been 8 years since the Court's 2018 ruling in Carpenter v. United States on the Fourth Amendment implications of cell-site location information. That's a relatively long gap. After City of Ontario v. Quon in 2010 on pagers, United States v. Jones in 2012 on GPS devices, Riley v. California in 2014 on searching cell phones incident to arrest, the Microsoft warrant case in 2018, and Carpenter that same year, it had become a staple of the Justices' speeches that Court was going to have to take a lot of cases on the Fourth Amendment and digital technologies in the future.

Instead, for eight years, we get bupkes.

Next, ponder the advisory-opinion aspect of the case. The cert petition in the case asked the Court to take on two issues: Was the Fourth Amendment violated, and does the exclusionary rule apply? In the proceedings below, the fifteen judges on the en banc Fourth Circuit were hopelessly divided on the Fourth Amendment issues—but only one of the fifteen Judges thought the exclusionary rule applied. Instead of taking both issues, the Supreme Court granted cert limited to the first issue.

Think about that. Even if the Court holds that Chatrie's Fourth Amendment rights were violated, it won't make any difference to Chatrie. The lower court has already held that there is no remedy, and that is a retrospective question unaffected by what the Supreme Court might rule on the merits in coming months. Going forward, the Court gets to hand down what is in a practical sense an advisory opinion on how the Fourth Amendment applies to geofencing. Many people care a great deal about what that practically-speaking-advisory-opinion will say, of course. But the actual individual involved, Chatrie, won't get relief.

What is going on? I think these two points are directly linked.

The common origin is the Supreme Court's cutting back on the exclusionary rule, and in particular its rulings like Davis v. United States in 2011 and earlier cases like Herring in 2009. The basic thinking of these cases is that it's wrong to punish the government with suppression of evidence if the government wasn't culpable for doing what it did. If the government didn't do something it should have known was illegal, there shouldn't be a suppression remedy.

Some will like that approach, and others won't. But think about how that changes Fourth Amendment litigation. When you mix that principle with the novel questions of new technologies, there is usually an exclusionary rule "out" when a defendant moves to suppress evidence in a case on new technology. By virtue of the issue being technologically novel, the government will not have been culpable for trying out the technique it used. And that will often mean that judges can avoid reaching the merits of how the Fourth Amendment applies by relying on the good faith exception.

It's not hard to think about what this does to Fourth Amendment litigation. Indeed, my sense is that, since Davis in 2011, caselaw development on the Fourth Amendment and new technology has noticeably slowed. Fourth Amendment caselaw as a whole has slowed, too. A few years ago, I had a research assistant look into this: There were fewer circuit court merits rulings on the Fourth Amendment in 2022 than in 2002 or 1982. But the technology cases have been hardest hit. It's just harder to get a merits ruling on the Fourth Amendment and technology than it used to be, and that has meant less caselaw development.

We have seen a taste of this dynamic in lower court cases I have blogged about before, like the computer search cases of United States v. Ganias in 2015 from the Second Circuit and United States v. Morton from the Fifth Circuit in 2022. Both were fascinating panel rulings. But in both cases, the United States successfully petitioned for rehearing en banc, and the en banc courts handed down opinions saying the good faith exception applied and expressing no views on the merits. We still don't know what the law is on the questions those courts addressed, either in those circuits or in other circuits.

And what's happening in circuit courts is just the tip of the iceberg.

After all, to get to a circuit court, someone needs to have pressed the argument below. And the real problem in Fourth Amendment litigation these days is just getting defense lawyers to file challenges in trial courts. Today's criminal defense lawyers know not to bother with novel Fourth Amendment arguments involving digital technologies. Even if you have what looks like a good argument on the merits, the novelty of the claim itself means you probably lack a remedy. And lacking a remedy, you won't bother filing the motion to suppress. There's no point in filing if you don't have a remedy even if you're right.

I have learned this first-hand with my draft motion to suppress Internet records seized by unlawful Internet preservation. Defense lawyers just have to fill in their client's name and add the date of preservation and they can file it. I think it's a seriously good argument on the merits, and I know prosecutors who are worried about defense lawyers filing such motions because they realize that the arguments against them are strong. But it's been pretty much impossible to get defense lawyers to file the motion. The problem is that the argument is novel. It is saying that an existing practice has major constitutional limits that haven't been spotted before. For a lot of defense lawyers, that basic feature means there is no point in filing. Again, there's no point in challenging the government if you don't have a remedy even if you're right.

What does this have to do with the long gap in Fourth Amendment cases and the advisory nature of the case? The long gap is probably obvious. The Supreme Court waits for circuit splits and percolation. But with defense attorneys not interested in challenging government practices, litigation over those practices is more rare, and you don't get the cases to generate a split. Fewer splits means fewer plausible cert petitions, and that means a long window with no grants.

The advisory nature of the case is also part of the story. The slowing of Fourth Amendment caselaw in the lower courts creates pressure on the Supreme Court to speed things along. If you want to create clarity on what the law is, you don't want the "out" of the good-faith exception. You want to forget the remedy entirely, and just focus entirely on the merits. This is just speculation, of course, but I would guess that this is why the Justices decided to grant cert only on the merits—denying cert on whether the good-faith exception applied. Limiting the cert grant serves a forcing function. It makes both the lawyers briefing the case, and the Justices deciding it, focus on the law-clarifying questions of how the Fourth Amendment applies.

In a sense, this is a variation of what I proposed back in 2011, in my article Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States. In that 2011 essay, I predicted that Davis and similar cases were going to cause a future slowing of the development of Fourth Amendment law. (I argued and lost Davis, and had written about this problem before Davis, so this has been a longstanding concern of mine.) I suggested in that essay that one way to help along that development was for the Justices to be active in adding questions presented. In effect, they should fill in closely related questions that would have been the subject of cert grants if the cases had been litigated, but were not litigated because the incentives to litigate them had been removed.

Limiting the cert grant in Chatrie to the merits seems to me a sort of cousin of that: It doesn't add to the issues in play, but it makes sure that at least some merits issues are reached. Indeed, in some sense the decision to grant in Chatrie is a cousin of that. By (surprisingly) granting cert from a one-line affirmance, the Court gives itself maximum flexibility to address a host of issues in the case.

Next up: Some thoughts on where the Court might go if they take on what is a "search."

The post The Slowing of Fourth Amendment Law, and Now Advisory Opinions: A Comment on Chatrie v. United States appeared first on Reason.com.

[Eugene Volokh] Justice Ginsburg Cancer Treatment Leak Prosecution: Blame the Cat

Eugene Volokh — Thu, 16 Apr 2026 16:37:39 +0000

["Russell insisted that he didn't know how his credentials had been used to run the 'Gins' and 'Ginston' searches. But he theorized that 'potentially his cat had run across the keyboard and typed in those letters.'"]

From U.S. v. Russell, decided Tuesday by Fourth Circuit Chief Judge Albert Diaz, joined by Judges Robert King and Stephanie Thacker:

Before Supreme Court Justice Ruth Bader Ginsburg passed away, … [i]n January 2019, employees at George Washington University Hospital discovered a Twitter post that revealed information about Justice Ginsburg's recent visits to the hospital. The post contained a screenshot of the hospital's patient search screen, which highlighted Justice Ginsburg's name and showed the dates of ten visits, along with medical services she received (which included radiology, oncology, and surgery services)….

Law enforcement later learned that before circulating on Twitter, the screenshot was posted on the anonymous message board 4Chan. It appeared on a thread titled "Politically Incorrect," where users promoted a conspiracy theory that Justice Ginsburg had died and prominent Democrats were covering up her death.

The hospital's Chief Information Officer, Nathan Read, investigated the leak. He obtained search logs for anyone who had used the hospital's system to look for patients with last names starting with "Ginsb" in the relevant time frame….

Read's … search parameters revealed that a non-hospital issued device, operating under Russell's username, searched for "Gins" on January 7, 2019. That search was sandwiched between two others. Seconds before, the same device searched for "Barker," and seconds after, it searched for "Ginston." Barker was a hospital patient, but the hospital had no record of ever serving someone with the last name Ginston.

After concluding its investigation, the hospital deactivated Russell's account, notified his employer, and gave Harlow's and Russell's names to law enforcement….

Federal Agents Mosi Forde and Chris Lalonde interviewed Russell at work. The CEO of Russell's company, Lori Brigham, sat in on the interview "because she was concerned about the case and interested in the outcome." Neither Forde nor Lalonde had asked her to attend. Brigham remained silent during the interview, except to once "wonder[ ] aloud what sensitive information could be derived from simply searching someone's name."

The agents told Russell that the interview was voluntary, he was free to leave at any time, and he could decline to answer any questions. According to Forde, Russell's "affect was pleasant and measured" during the interview, and he "appeared to be under no apparent duress."

The agents showed Russell the relevant search logs. He confirmed that the credentials used for the searches belonged to him. Russell also admitted that he'd run the search for "Barker," who was his patient. But Russell denied searching for "Gins" and "Ginston." {At trial, the government argued that Russell searched for "Ginston" to conceal that he was looking for Justice Ginsburg's health records.}

When asked what "Gins" stood for, Russell said that "if he had to take a guess, it was Justice Ginsburg." The agents hadn't yet mentioned the Justice's name in the interview. Russell also "guessed" that the agents were speaking with him "because someone had taken a screenshot of Justice Ginsburg's medical record."

Russell insisted that he didn't know how his credentials had been used to run the "Gins" and "Ginston" searches. But he theorized that "potentially his cat had run across the keyboard and typed in those letters." He also suggested that the searches could be typos or that a coworker may have used his login information….

Russell was prosecuted, and convicted of "destroying and altering records, and … obtaining individually identifiable health information," and acquitted "of disclosing individually identifiable health information." He was sentenced to 2 years in prison.

The court concluded there was enough evidence to sustain the conviction:

The jury convicted Russell under 42 U.S.C. § 1320d-6(a)(2), which prohibits "obtain[ing] individually identifiable health information relating to an individual." This includes any information that

(A) is created or received by a health care provider … and

(B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and—

(i) identifies the individual; or

(ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual.

A person violates the statute "if the information is maintained by a covered entity … and the individual obtained … such information without authorization." Healthcare providers like George Washington University Hospital are covered entities….

Russell argues that the information about Justice Ginsburg in the screenshot doesn't qualify as "individually identifiable health information." Although he admits the screenshot showed that the Justice received medical care from the hospital, Russell asks us to limit the statute's application to individuals who obtain "information about [a patient's] specific health conditions," such as "details about the [patient's] particular physician and type of treatment." In Russell's view, because the screenshot didn't disclose the precise nature of Justice Ginsburg's illness or the names of her doctors, it can't serve as the basis for his conviction.

We reject this crabbed view of the statute. The screenshot identified the Justice by name and disclosed where she was being treated, her arrival and discharge dates, and the medical services provided, which included radiology and oncology services. As a witness testified, this information revealed that Justice Ginsburg "had been receiving treatment from [the hospital] for various things related to cancer seemingly since at least 2014."

This information falls well within the heartland of the conduct the statute is aimed at because it "relates to the past … health or condition of an individual, [and] the provision of health care to an individual." To hold otherwise would flout the spirit of the law. At the very least, a reasonable juror could accept that the screenshot contained personal health information sufficient to support a conviction under § 1320d-6(a)(2).

And the court held that the CEO's presence during the interview didn't make Russell's statements to law enforcement "involuntary" for legal purposes and thus inadmissible:

[T]he district court didn't say that implied threats to employment can never be coercive. It simply found that there was no such threat here. Russell didn't identify a case where "the mere presence of the employer or the CEO [in a conversation with law enforcement] could be construed as a threat, implicit or explicit." …

The district court concluded that "there's nothing in the record that suggests that the interaction between the agents and [Russell] involved coercive police activity, either in the words that were spoken or in their actions[,]" [because] … (1) Russell was an English-speaking adult with higher education; (2) law enforcement questioned him in a conference room with windows and at least one unlocked door; (3) the agents told Russell that he "was free to leave at any time, [and] that the interview was voluntary"; (4) the agents didn't brandish weapons or any other indicia of force or coercion; (5) Russell "felt free to admit certain inculpatory evidence"; and (6) the agents hadn't asked the CEO to attend the interview.

Given these findings, the CEO's presence (without more) doesn't rise to the level of coercive police activity. So the district court correctly denied the motion to suppress.

Lauren Nicole Beebe and Zoe Bedell represent the government.

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[Josh Blackman] Who Owns The President's Papers?

Josh Blackman — Thu, 16 Apr 2026 16:05:31 +0000

[Yes, there is a Domestic Emoluments Clause issue. ]

The Office of Legal Counsel concluded that the Presidential Records Act (PRA) is unconstitutional. In Civitas Outlook, I explained why I thought this opinion was consistent with recent Supreme Court precedents, including Trump v. Mazars.

Others, unsurprisingly, disagree. Christopher Fonzone, who headed OLC during the Biden Administration, writes that the PRA is constitutional. Here, I want to focus on one aspect of Fonzone's analysis: who owns the President's papers?

Fonzone writes:

First and foremost, the Property Clause. Article IV of the Constitution expressly grants Congress the "Power to dispose of and make all needful Rules and Regulations respecting" U.S. property. Since the Constitution and Congress create and fund all of the offices in the White House, those offices are unquestionably government offices. As OLC recognized in the 1978 testimony concerning the constitutionality of the PRA, "[i]t is well established that the work product of government employees prepared at the direction of their employer or in the course of their duties is government property." Thus, Congress may "extend this principle" to require the preservation of "records prepared or received by the President in the course of his duties" and "no substantial separation of powers problems would, in our view, be raised." (As I discuss below, the April 1, 2026 OLC opinion includes no discussion of the Property Clause.)

The Carter Administration may have reached this conclusion, but (thankfully) one executive branch cannot bind another executive branch--especially one that was "especially pleased" to acquiesce to so many congressional constraints on presidential power.

Fonzone does not mention that the Supreme Court expressly left this issue open in Nixon v. Administrator of General Services (1977):

We see no reason to engage in the debate whether appellant [President Nixon] has legal title to the materials. . . .

The litigation over Nixon's records did not end in 1978. There was extensive caselaw that stretched decades. In 1992, the D.C. Circuit stated that the papers did belong to Nixon:

The government has, pursuant to PRMPA, taken complete possession and control of the Nixon papers. Although a great public interest may justify a taking, it does not convert the taking into mere regulation. Here, the few rights that Mr. Nixon retains in the materials are so fractured that his original property interest has been destroyed. Indeed, the rights that have been granted to Mr. Nixon are so modest that they cannot be equated with "property." In such a case, we have little difficulty in concluding that PRMPA constitutes a per se taking of Mr. Nixon's property.

For those who keep track, the panel opinion was written by Judge Harry Edwards, and Judge Ruth Bader Ginsburg joined it in full.

The recent OLC opinion mentions the 1992 case⁠ and points out that the Presidential Records Act nowhere authorizes payment of just compensation: ". . . we note that the PRA is plainly not an attempt to exercise the power of eminent domain: Unlike the PRMPA, it contains no just-compensation provision."

And wait, there's more! The Domestic Emoluments Clause is relevant. Seth Barrett Tillman and I discussed this issue in our contribution to the Heritage Guide to the Constitution:

After President Richard Nixon resigned from office, the General Services Administration (GSA) took custody of certain materials from the Nixon presidency. Nixon sued the government to retain control of these papers, recordings, and other items. Nixon claimed that these materials were his property. But the government argued that "the salary and benefits provided to Mr. Nixon by the United States during his presidency were the only economic benefits the United States could have provided him."²⁶ As a result, the government claimed, the Domestic Emoluments Clause prohibited Nixon "from receiving any 'emolument' from the United States beyond the compensation fixed by Congress before he . . . took office."²⁷ Moreover, Nixon would be "precluded from taking materials and selling them for personal profit during, or after, his . . . presidency."²⁸ Thus, he was "not entitled to any [further] compensation by virtue of the Emoluments Clause."²⁹ Nixon countered "that since the presidential papers were never public property to begin with, the [Domestic] Emoluments Clause does not apply to them."³⁰

In Griffin v. United States (1995), a federal district court recognized that the Domestic Emoluments Clause "addressed the Framers' concern that the President should not have the ability to convert his or her office for profit."³¹ However, the court also found that the clause "does not bar the award of compensation." This provision applies while a President is in office, but the clause "would not be violated because Mr. Nixon would receive compensation subsequent to the expiration of his term of office."³² Any "proceeds derived from the sale of Mr. Nixon's presidential papers do not constitute an emolument."³³ Past Presidents had negotiated "fancy sums" for "lucrative library deals," and the Library of Congress has "authorized purchases" of materials from Presidents.³⁴ The court declined to address whether "a sitting President could sell his or her papers while in office" because those facts were not presented.³⁵

Griffin is in some tension with an earlier district court decision, Nixon v. Sampson (1975).³⁶ That case held that Nixon's materials from the White House were "directly related to the performance of the Office of the President and are of incalculable value." The judge ruled that it would violate the Domestic Emoluments Clause if the President was "given or . . . permitted to assert a personal right to such materials." Nixon argued that this material was "not an emolument because his right of ownership does not come into existence until he leaves office."³⁷ The court rejected this argument: "[I]f [Nixon's] claim of ownership does not come into existence until he leaves office, then it can only be concluded that while he is in office the documents, papers, tapes and other materials were government property." Sampson was later vacated, and Griffin did not cite Sampson.

The issue of who owns the the President's papers is not a settled question. When an issue is not yet settled by the Supreme Court, the only way to resolve the issue is what I call the Nike approach: "Just do it!" The executive concludes that the PRA is unconstitutional, stops voluntarily complying with it, and waits to be sued. Without such affirmative action, the President will forever be bound by the leadership of Jimmy Carter. In CASA, the Solicitor General stated clearly that lower courts cannot universally bind the executive branch, but the Supreme Court can. And now, the issue will race to SCOTUS.

In other news, the litigation filed by American Oversight to block the implementation of the OLC opinion hit a stumbling block. The group attempted to judge shop the case to Judge Howell, a friendly forum. They listed this case as "related" to a pre-existing case before Judge Howell involving FOIA and DOGE. The government moved to randomly reassign the case, and Judge Howell agreed:

The only basis for relation to American Oversight asserted in plaintiffs' Notice of Related case was that the two cases supposedly "involve common issues of fact." See Pls.' Not. of Related Case (checking the "common issues of fact" box). Belatedly, and somewhat surprisingly, plaintiffs now assert in response to defendants' noticed objection to relating the two cases, that they "mistakenly selected only the box for 'involves common issues of fact,' and not also the box for 'relates to common property,'" and proceed to rely first and most heavily in their opposition on the contention that these cases involve as "common property" the records sought by the plaintiff in American Oversight (the "American Oversight Records"). Pls.' Opp'n at 1-2 & n.1.1 Neither of these prongs in D.D.C. Local Civil Rule 40.5(a)(3)(i) and (ii) provides a basis for relation.

The case was reassigned to Judge Bates.

You see, judge shopping is only bad when conservatives do it. When progressive use chicanery to draw a favored judge, there is no cause for concern. If people wanted to get serious about judge-shopping, the first area of focus is not a few single judge divisions. The rampant abuse of the "related cases" option should be the first priority.

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[Ilya Somin] Trump Administration Presents Update on its Tariff Refund Plan

Ilya Somin — Thu, 16 Apr 2026 14:15:41 +0000

[The plan is not completely terrible. But many importers may still have difficulty getting the refund money owed to them.]

After the Supreme Court struck down Donald Trump's massive International Emergency Economic Powers Act (IEEPA) tariffs in a case I helped litigate along with the Liberty Justice Center and others, litigation continued over tariff refunds owed to the many businesses that paid illegally collected tariffs under IEEPA - a total of some $166 billion. In March, Judge Richard K. Eaton of the US Court of International Trade - the judge assigned to oversee the refund process - ordered the administration to grant refunds to to all those businesses that were forced to pay the tariffs - including those that had not filed lawsuits seeking refunds. This week, on April 14, in response to Judge Eaton's court order, the US Customs and Border Protection agency (CBP) submitted a required update on the status of their refund plan. The Hill has a helpful summary:

Roughly 330,000 importers who paid a combined $166 billion as part of President Trump's emergency tariffs are waiting on refunds after the Supreme Court in February struck down the levies in a blockbuster 6-3 decision.

CBP, the federal agency in charge of collecting tariffs, has warned the immense scale of the refund effort requires time. Officials have been working to launch the first phase of the new system on April 20, though the agency previously suggested importers may need to wait an additional 45 days afterwards to actually receive their funds.

Lord said the system will be able to process electronic refunds for about 82 percent of the affected tariff entries. That accounts for about $127 billion in deposits. More than 56,000 importers have already signed up, and the number continues to grow as the system nears its launch.

Others won't be able to use that automated process. Some entries that haven't gone through a formal close-out step called "liquidation" and are subject to antidumping orders must instead go through a manual, administrative process that requires additional steps, Lord noted.

CBP says that applies to about $2.9 billion worth of tariff deposits that need refunding.

This seems less bad than the worst-case scenario in which the administration could simply stonewall most victims of the illegal tariffs, through some combination of malice and bureaucratic incompetence. It is also significant that the administration has - so far, at least - not tried to appeal Judge Eaton's order. In my earlier post on this subject, I indicated they might at least appeal the universal nature of the order, which could potentially be attacked based on the Supreme Court's 2025 ruling Trump v. CASA, Inc. (though I also indicated that I believe Judge Eaton correctly distinguished CASA).

But, as the Hill article notes, the process may still be time-consuming and difficult for many businesses. That is particularly true for smaller importers that have less bureaucratic capacity than bigger firms. Meanwhile, the longer the process drags on, the more interest payments we taxpayers will be on the hook for, a point Judge Eaton rightly stressed in his March ruling.

And, as I pointed out in my previous post, even the most complete possible tariff refund system will not fully compensate many harms inflicted by the illegal tariffs on both businesses and consumers. Among other things, they cannot compensate businesses for lost sales, disruptions in supplier relationships, lost investments, and more. Consumers, of course, will not be compensated for having to pay higher prices.

For these reasons, as also noted in my earlier post, courts made a mistake when they stayed the Court of International Trade injunction against the tariffs issued when we won our initial trial court victory in May 2025. As I noted at the time:

One factor courts consider in assessing a motion to stay is which side is likely to ultimately prevail on the merits….

Another key factor is which side is likely to suffer "irreparable harm" if they lose on the stay issue. We argue that our clients - and thousands of other businesses - will suffer great irreparable harm if a stay is imposed. They will lose sales due to higher prices, good will can be lost, relationships with suppliers and investors will be disrupted, and more. Those harms can't be made up merely by refunding tariff payments months from now, after the appellate process concludes.

All of the noncompensable harms we warned against came true. And, in addition, the administration has been slow to enact an effective tariff refund system, thereby further exacerbating the harm, and leaving taxpayers on the hook for rapidly growing interest payments.

I hope courts learn from this experience. When and if they strike down Trump's newest massive illegal tariffs - those imposed under Section 122 of the Trade Act of 1974 - they should know not to stay any injunction issued against them. Judges should not blindly accept administration assurances that any harms will be promptly remedied by refunds issued after the fact.

NOTE: As I have previously noted, I am no longer a member of the V.O.S. Selections legal team, because my role ended after the Supreme Court issued its decision. Thus, I am not involved in the refund phase of this litigation.

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[Eugene Volokh] "Cabotage": It's Not "Sabotage" with the "S" Switched to Russian

Eugene Volokh — Thu, 16 Apr 2026 13:35:47 +0000

Just learned this largely legalese word today; it means, according to Black's Law Dictionary,

1. The carrying on of trade along a country's coast; the transport of goods or passengers from one port or place to another in the same country….

2. The privilege of carrying traffic between two ports in the same country.

3. The right of a foreign airline to carry passengers and cargo between airports in the same country.

Black's also offers this quote:

"Some writers maintain [that cabotage] should be applied only to maritime navigation; in this context one can distinguish between petit cabotage — transport between ports situated on the same sea (e.g. Bordeaux-Le Havre) — and grand cabotage — transport between ports situated on different seas (e.g. Bordeaux-Marseille). However, the term is also properly applied to transport between two inland points on an international river within one State, although the term grand cabotage is sometimes incorrectly applied to transnational transport between the inland ports of different riparian States on the same waterway. River cabotage properly so called is sometimes also referred to as local transport. Finally, the term has also been adopted to describe commercial air transport between airports situated in the same State." Robert C. Lane, "Cabotage," in 1 Encyclopedia of Public International Law 519–20 (1992).

Pedantic disclaimer: Yes, I know that the post title should probably technically have said "Cyrillic" and not just "Russian," but I thought "Russian" would be clearer to many readers.

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[Irina Manta] "Can Speech Policy Protect Public Health?" in Print in Utah Law Review

Irina Manta — Thu, 16 Apr 2026 12:29:27 +0000

[Constitutionality of health-related speech meets public choice and social media]

My coauthors Cassandra Robertson, Zoe Robinson, and I just published an article entitled "Can Speech Policy Protect Public Health?" in the Utah Law Review. Here is the abstract:

Government speech shapes public health outcomes, yet political incentives often lead officials to either remain silent about emerging threats or subordinate scientific evidence to partisan goals. This Article examines how three factors interact to influence public health: the constitutional status of health-related speech, the political economy of public health policymaking, and the modern information environment. Drawing on insights from public choice theory, we demonstrate how misaligned incentives lead political actors to avoid communicating about health risks or spread misinformation that serves their short-term interests at the expense of population health. The conventional tools of public health policy were developed when official sources could effectively shape public understanding, but today's fragmented information landscape demands new approaches to health communication.

This Article analyzes both the constitutional framework governing health-related speech and the practical dynamics that complicate effective public health messaging. We propose specific mechanisms to combat harmful misinformation while creating stronger incentives for accurate government communication about health threats. Throughout, we move beyond binary debates about censorship versus free speech to develop approaches that reflect the complex relationship between information flows, political incentives, and public health outcomes. The history of public health challenges—from the AIDS crisis of the 1980s to today's emerging strains of avian influenza—shows how institutional responses often falter. Understanding these dynamics can help shape better responses to current and future health crises.

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[Eugene Volokh] $5K Sanctions for "Egregious, Repeated, and Ongoing" AI Hallucinations in Self-Represented Litigant's Filings

Eugene Volokh — Thu, 16 Apr 2026 12:01:42 +0000

From last week's decision by Judge Virginia Kendall (N.D. Ill.) in Obi v. Cook County:

The Court strikes Plaintiff's motion [to alter or amend the judgment dismissing her complaint] for violating Local Rule 7.1 and sanctions her $5,000 for violating Rule 11.

Plaintiff's motion is 10.5 pages single-spaced and her core argument runs six straight pages in a single paragraph. 10.5 single-spaced pages is 21 pages double-spaced. Plaintiff's reply briefs are 23 pages single-spaced (46 pages double-spaced) and 13 pages single-spaced (26 pages double-spaced). Plaintiff never sought leave to file such voluminous papers. The lack of table of contents is also problematic because, as discussed below, many of Plaintiff's citations are fictious. Plaintiff violated Local Rule 7.1. "Neither a motion nor brief in support … shall exceed 15 pages without prior approval of the court." Any brief that exceeds 15 pages "must have a table of contents with the pages noted and a table of cases." "Any brief … that does not comply with this rule shall be … subject to being stricken by the court." The Court "strictly enforce[s]" this rule. The Court therefore strikes Plaintiff's motion and replies.

Normally the Court, recognizing Plaintiff's pro se status, would offer leeway and consider Plaintiff's briefs despite violating Local Rule 7.1. Plaintiff's egregious, repeated, and ongoing Rule 11 violations, however, foreclose any such possibility. Plaintiff generated each brief using AI. Plaintiff's motion is riddled with AI hallucinations, made up cases, quotes, and statements of law and fact. [Citing filing] (identifying 13 hallucinated cases, quotes, and statements of law)….

This is not the first time Plaintiff has done this. In a prior filing, Plaintiff's brief contained at least 17 instances of fake cases, quotes, and statements of law and fact from AI hallucinations. The Court then gave Plaintiff grace—Plaintiff has exhausted that leniency. Plaintiff's replies suffer from similar Rule 11 violations….

The severity of Plaintiff's Rule 11 ongoing and repeated violations warrants sanctions. "Pro se status does not shelter plaintiffs from sanctions pursuant to Rule 11." "When a self-represented party files a document in federal court, that party is certifying to the court that the legal contentions contained in it 'are warranted by existing law.'" "'Carelessness, good faith, or ignorance are not an excuse for submitting materials that do not comply with Rule 11.'" Plaintiff "must ensure that the case citations and representations she presents to the court are accurate and are supported by valid precedent; the fact that she is representing herself does not relieve her of that duty."

"Filing a document that contains citations to nonexistent cases, quotes language that comes from no real case, or that contains arguments wholly unsupported by the record violates Rule 11." Plaintiff did just that repeatedly. "This demonstrates that [Plaintiff] failed to make a reasonable inquiry into the supporting law or facts. This wastes both the parties' and the Court's time attempting to locate nonexistent cases and unpack made up factual assertions." The Court sanctions Plaintiff $5,000 for filing false cases, quotes, and statements of law and fact to the Court in violation of Rule 11.

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[Josh Blackman] Today in Supreme Court History: April 16, 1962

Josh Blackman — Thu, 16 Apr 2026 11:00:26 +0000

4/16/1962: Justice Byron White takes oath.

Justice Byron White

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[Eugene Volokh] Open Thread

Eugene Volokh — Thu, 16 Apr 2026 07:00:00 +0000

[What’s on your mind?]

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[Eugene Volokh] Depends on What the Meaning of "Miss" Is: The Miss America Gender Identity Controversy

Eugene Volokh — Wed, 15 Apr 2026 18:52:42 +0000

To advance in competition, Miss North Florida 2025, Kayleigh Bush, was told to sign a contract that forced her to compete against men. She refused.

"Miss" America and "Miss" Florida advertise as women-only competitions, which is misleading and may violate FL law. This is wrong! pic.twitter.com/UJoAzyUOl1

— Attorney General James Uthmeier (@AGJamesUthmeier) April 10, 2026

The Florida AG sent a letter to the Miss America organization objecting to its policies that appeared to allow contestants who had "fully completed sex reassignment surgery via vaginoplasty (from male to female) with supporting medical documentation and records." (The Miss America organization claims this was intended all along to cover only women born with XX chromosomes but with an intersex condition, who had gotten the condition surgically altered; it has since changed the policy language to so indicate.)

Now beauty pageants, like theatrical productions, have a First Amendment right to choose who competes in them, including based on sex, gender identity, marital status (Miss), citizenship status (America), age, race or ethnicity (as is the case with some such competitions, though not Miss America itself), and more. Green v. Miss United States of America (9th Cir. 2022) so recognized, in upholding a pageant's requirement that participants be "natural born females":

As with theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech with live performances such as music and dancing to express a message. And while the content of that message varies from pageant to pageant, it is commonly understood that beauty pageants are generally designed to express the "ideal vision of American womanhood." In doing so, pageants "provide communities with the opportunity to articulate the norms of appropriate femininity both for themselves and for spectators alike."

Equally important to this case is understanding the method by which the Pageant expresses its view of womanhood. Given a pageant's competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks. Put differently, the Pageant's message cannot be divorced from the Pageant's selection and evaluation of contestants. This interdependent dynamic between medium and message is well-established and well-protected in our caselaw….

I think that's right, for the reasons given in an amicus brief I filed in that case.

Likewise, a beauty pageant would have the right to include transgender people. By way of analogy, the producers of a play about the Framers would have a right to cast only whites (for historical verisimilitude), mostly blacks (as in Hamilton), or others.

The Florida AG's objection is that "'Miss' America and 'Miss' Florida advertise as women-only competitions, which is misleading and may violate FL law" (see the Tweet for the letter). But that strikes me as unsound, just as it would be unsound for a blue-state AG to go after Miss United States of America on the grounds that its exclusion of male-to-female transgender contestants is "misleading" given that AG's view that his state's residents would assume "Miss" does include such transgender contestants.

People obviously have sharp disputes about how to define "Miss," "Asian" (consider the eligibility rules for Miss Asian America), "America," "democracy," "genocide," "global warming," and a vast range of other terms. It's not for the government to resolve how people can use those terms in books, films, plays, pageants, and other fully First-Amendment-protected materials, and in promotion of those materials that characterizes the content of the materials. See, e.g., Groden v. Random House (2d Cir. 1995); Incarcerated Entm't v. CNBC (D. Del. 2018).

In commercial advertising for nonspeech products (cars, food, and the like), misleading statements can indeed be restricted (though even there I'm not sure that courts would decide which of various contested definitions of "miss" is the right one). Indeed, even commercial advertising for books and the like might be restricted as misleading if it relates to the nonspeech features of the product, such as its price or other terms on which it's being bought (e.g., if an ad misleadingly offers a video for sale while in reality it's a rental).

But the government generally has no business threatening legal liability for allegedly misleading books, or for advertisements that describe the content of the books in ideologically controversial ways that one side of the debate calls misleading. That's likewise true for newspapers, magazines, films, plays, and pageants. Public pressure aimed at getting a pageant to change its eligibility definitions, and how it describes those definitions, is generally fine. But threats of government "enforcement action," I think, are not.

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[Eugene Volokh] "I Swear, if You Don't Drop Out of Miss Pennsylvania, I Will Come to Your Home and Set It on Fire"

Eugene Volokh — Wed, 15 Apr 2026 17:40:28 +0000

["I don't even care if you or your mom are inside. I actually hope you are. You both deserve to die. I am going to kill you, Robyn. I don't understand why you don't get that. I will burn you. You will die."]

A short excerpt from Judge Julia Munley's long decision last month in Vespico v. Kass-Gerji (M.D. Pa.) (note that the quote from the title and the subtitle is from the court opinion, which in turn cites a transcript of an anti-stalking order hearing):

Each June, the Miss Pennsylvania competition is held in York at the Appell Center for the Performing Arts. The winner goes on to represent the Commonwealth in the Miss America pageant. Leading up to the 2024 competition, what may have started as a backstage rivalry escalated into something uglier.

According to Defendant Robyn Kass-Gerji, it was the plaintiff, Victoria Vespico, whose conduct went beyond the pale. Kass-Gerji claims she was subjected to months of harassing text messages and threats against her life. According to Kass-Gerji, Vespico also threatened to kill her mother, her boyfriend, and her dog.

Vespico tells a very different story. She insists that she never sent a single message and paints Kass-Gerji as the true aggressor. That is, Vespico describes Kass-Gerji as someone willing to fabricate evidence, file a fraudulent petition for a protection order, and lie under oath.

Days before the contestants took the stage at the Miss Pennsylvania pageant, a hearing was convened—not before a pageant director, but a judge of the Superior Court of the District of Columbia. The subject matter was credibility, not congeniality.

After listening to both sides over the course of a two-day hearing, the judge ruled in favor of Kass-Gerji and issued an anti-stalking order ("ASO") against Vespico. The judge concluded that Vespico was not believable and that she had sent the threatening texts. He determined that Kass-Gerji was not lying or fabricating evidence.

Vespico, however, stands firm. She points to Kass-Gerji's conduct after obtaining the ASO as signs that the defendant made it all up to get attention—withdrawing from Miss Pennsylvania, sitting for a TV interview with a local news affiliate during the pageant, and sharing details about the texts and legal proceedings with a British tabloid journalist.

The tabloid involved was the Daily Mail. After the curtain fell on the 2024 Miss Pennsylvania pageant, the Mail published an article: "Miss Pennsylvania runner-up Victoria Vespico called rival Robyn Kass-Gerji 'piggy b***h and texted her: 'Are u ready to die now?' – before landing a job mentoring America's kids." The Mail used full names, referenced body shaming and death threats, and hinted at children being at risk, and that was only the headline.

After seeing her image run through the filter of a British tabloid, Vespico filed this abuse of process, defamation, and false light lawsuit against Kass-Gerji, Daily Mail, and Laura Collins, the reporter who authored the article. Following the voluntary dismissal of the Mail and Collins, the action now proceeds only against Kass-Gerji.

Before the court is the defendant's motion to dismiss for failure to state a claim. The motion will be granted. The D.C. Superior Court's findings, detailed below, bear directly on that determination. Because Kass-Gerji also seeks attorneys' fees, the court also addresses Pennsylvania's Anti-SLAPP statute….

Upon review of the allegations in the complaint and the transcript from the ASO proceedings, the D.C. Superior Court determined that Vespico violated the stalking statute by engaging in the very harassment and threats that Kass-Gerji later described to the media, which are the alleged false statements in the complaint under review…. Consequently, the truth of whether Vespico sent threatening or intimidating texts to Kass-Gerji has already been litigated and those findings were critical to the entry of the ASO by the D.C. Superior Court…. Therefore, because all four elements of D.C.'s collateral estoppel doctrine are met, the D.C. Superior Court's determination that Vespico engaged in the harassment and threats that Kass-Gerji described to the media is conclusive and may not be relitigated.

As for the claim for defamation per se, truth is an absolute defense under Pennsylvania law regardless of the per se characterization. The findings of the D.C. Superior Court establish the truth of Kass-Gerji's statements, and thus Vespico cannot meet her burden of proving falsity….

Edward Jonathan Canter and Sloan Elizabeth Nickel (Litson PLLC) and Richard L. Armezzani (Myers, Brier & Kelly, LLP) represent Kass-Gerji.

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[Eugene Volokh] Expedited Discovery Allowed in Sheriff's Defamation Case, Which Alleges Claims of Unwarranted ICE-Related Detention were a Hoax

Eugene Volokh — Wed, 15 Apr 2026 17:19:02 +0000

From Monday's order by Judge Brett Ludwig in Schmidt v. Naqvi (E.D. Wis.):

Plaintiff Dale Schmidt is … the elected sheriff of Dodge County, Wisconsin…. Defendant Kevin Morrison is … a prior candidate for the United States House of Representatives [and currently a Cook County, Ill. Commissioner -EV]. Schmidt is suing [Sundas] Naqvi, Morrison, and unidentified Doe Defendants for falsely claiming that Naqvi was illegally detained at Dodge County Jail from March 5, 2026 through March 7, 2026.

Schmidt maintains that Naqvi was never booked or detained at Dodge County Jail. He alleges that, in actuality, Naqvi arrived at O'Hare International Airport on March 5, 2026, checked into a Hampton Inn & Suites located in Rosemont, Illinois, and, in the early morning hours of March 7, 2026, was dropped off at a Holiday Inn Hotel in Beaver Dam, Wisconsin.

Schmidt seeks leave from the Court to conduct limited, expedited discovery to subpoena T-Mobile, Naqvi's cellphone provider, to produce text messages, call details, and records. He also seeks to subpoena the relevant hotels for exterior and lobby video surveillance, limited in date and times. For the reasons discussed below, Schmidt's motion will be granted….

"A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except … when authorized … by court order." … Schmidt has shown sufficient good cause to support his request [for a subpoena without a Rule 26(f) conference]…. [A] prima facie claim of defamation in Wisconsin requires plausible allegations that the defendants made a false statement, communicated by speech; communicated to a third party; and the communication is unprivileged and tends to harm one's reputation. Schmidt alleges that Naqvi and Morrison falsely publicized that Naqvi was illegally detained at Dodge County Jail, which could harm Schmidt's reputation. Accordingly, he has made a prima facie claim of actionable harm.

Next, Schmidt seeks concrete, narrow information: Naqvi's cellphone records and the exterior and lobby surveillance footage from the pertinent Hampton Inn and Holiday Inn, limited to relevant dates and times. The Court also notes that while there are alternative means to obtain the subpoenaed information, these methods are outweighed by the risk of the records overwritten and/or purged in the ordinary course of business, thus satisfying the third and fourth elements.

The Court also finds that the subpoenaed information will advance Schmidt's claim. To begin with, video surveillance could prove his allegations about Naqvi's actual whereabout during the time she claimed to be detained at Dodge County Jail. Moreover, Naqvi's cellphone records may help Schmidt identify the unknown Doe Defendants. Doe Defendants must be identified and served within ninety days of the commencement of the action against them, and, accordingly, this information is necessary to proceed with the claims against Doe Defendants….

[And] the Court is satisfied that Schmidt's interest in protecting himself from defamation outweighs the defendants' privacy interest. The statements made "caused reputational harm and damages" to Schmidt, "particularly as he prepared for a re-election campaign." The defendants' interest is minimal; by publicizing statements about Schmidt and the alleged detention, they do not have a reasonable expectation of privacy in information that could disprove their statements….

Here are more details on the allegation, from Friday's Complaint in Schmidt v. Naqvi (E.D. Wis.); recall that these are just allegations, made "Upon information and belief" of the plaintiff, and any factfinding will be some time in the future:

On or about March 5, 2026, Defendant Naqvi alleges she arrived at O'Hare International Airport … on a flight from Istanbul, Turkey. Security footage at O'Hare shows Defendant Naqvi entering a secondary inspection area at 10:46 a.m. and leaving the secondary inspection area to a public area at 11:42 a.m.

[O]n or about March 5, 2026, Naqvi checked into the Hampton Inn & Suites located at 9480 W. Higgons Road, Rosemont, Illinois 60018. Upon information and belief, on or about March 8, 2026, at approximately 1:32 p.m. Naqvi checked out of the Hampton Inn & Suites…. [D]uring the late evening of March 6, 2026 and early morning hours of March 7, 2026, Defendant Naqvi arranged for transportation from an acquaintance from the Hampton Inn & Suites near O'Hare to Wisconsin…. On or around March 7, 2026, at approximately 5:38 a.m., Naqvi was seen at a gas station in the Slinger, Wisconsin area…. Naqvi was dropped off at a Holiday Inn Hotel in Beaver Dam, Wisconsin at approximately 6:33 a.m on March 7, 2026.

Despite the real facts described above, Naqvi publicly claimed that upon her arrival at O'Hare on March 5, 2026, she was taken into custody and detained at O'Hare[,] … publicly claimed that after being detained for 30 hours at O'Hare she was transported from O'Hare to an Immigration and Customs Enforcement (ICE) facility in Broadview, Illinois[,] … [and] publicly claimed that she was transported across state lines to Wisconsin where she claimed to have been held at the Dodge County Jail. Naqvi claims Dodge County Sheriff's Office subsequently released her from the facility on March 7, 2026.

On or about, March 8, 2026, Cook County Commissioner Kevin Morrison, then a candidate for the United States Congress, stated during a press conference that Naqvi and five other individuals were transported from Illinois to Wisconsin by immigration agents. During this press conference Commissioner Morrison made allegations of an illegal detention of a U.S. citizen by government officials, including Sheriff Schmidt.

Commissioner Morrison made allegations of a "cover up" by the Dodge County Sheriff's Office. For example, on March 9, 2026, upon information and belief at the direction of Naqvi, Commissioner Morrison made the following statements to WISN 12 News directed at Sheriff Schmidt: "[t]hey have been lying from the very start of this. I don't think they want to own up to the fact that, once again, they have illegally detained American citizen without due process."

On March 9, 2026, Commissioner Morrison further publicly reported that after Naqvi was allegedly released from the Dodge County Jail, Naqvi "walked to a nearby gas station and hitchhiked to a Holiday Inn, several miles away from the detention facility for refuge before her sister was able to get to her."

Many of the statements made by Commissioner Morrison were also disseminated through Commissioner Morrison's social media channels, which were widely shared:

… News reports detailing the allegations were published and disseminated throughout Wisconsin and Illinois media outlets, as well as nationally distributed news media…. In addition to the widespread news coverage, Naqvi's and Commissioner Morrison's allegations have similarly been published and disseminated through various social media platforms such as Instagram, Facebook and X….

Naqvi was never booked or detained at the Dodge County Jail. Dodge County Jail logs show no female inmates or detainees from the federal government were admitted or released during the timeframe in which these events were alleged to have occurred. The statements made by Defendants were demonstrably false statements of fact, not opinions, and are capable of being proven false….

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[Eugene Volokh] Court Ordered Critic of Ex-Mayoral Candidate to Stop "Publicly Writing, Printing, or Speaking [Ex-Candidate's] Name"

Eugene Volokh — Wed, 15 Apr 2026 16:33:56 +0000

[Fortunately, an appellate court just reversed the decision.]

From today's Coble v. Ballentine, by N.C. Court of Appeals Judge Jefferson Griffin, joined by Judges John Arrowood and April Wood:

Although Defendant and Plaintiff were originally friendly with each other, their relationship deteriorated upon the death of Defendant's father. Defendant has not directly contacted Plaintiff since 2022.

Defendant and Plaintiff are active in local politics and use their social media accounts to express their political views. While both associate with the Randolph County Republican Party, Defendant and Plaintiff have supported opposing candidates in the past.

In March 2024, Plaintiff announced on Facebook that she would run for mayor of Randleman in the 2025 election. Later that year, in response to Plaintiff's candidacy announcement, Defendant made a Facebook page titled "Anybody But Coble." Additionally, Defendant later created a website, www.AnybodyButCoble.org. On these platforms, Defendant wrote articles opposing Plaintiff's mayoral candidacy. Facially, Defendant created "Anybody But Coble" to assist voters in their mayoral candidate selection for Randleman….

[Around the start of 2025], Plaintiff stated online that she would no longer run for mayor. Nevertheless, the mayoral candidate filing period remained open until July 2025. Despite Plaintiff's online statement that she would not run for mayor, Defendant did not remove the content on his platforms concerning his opposition to Plaintiff's mayoral candidacy.

Plaintiff sought a "no-contact order against Defendant," and the trial court "ordered Defendant to refrain from publicly writing, printing, or speaking Plaintiff's name in any manner as well as going within fifty yards of Plaintiff." The appellate court reversed:

A person may commence an action for a civil no-contact order when he or she is a victim of unlawful conduct [including stalking, defined as] … the following or harassing of another person on more than one occasion without legal purpose with the intent to either (1) instill reasonable fear in another person for their safety or the safety of those close to them, or (2) cause another "to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress." Furthermore, such harassment includes knowing conduct such as "written or printed communication or transmission … or other computerized or electronic transmissions directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose." Simply, civil harassment constitutes "(1) knowing conduct (2) directed at (3) a specific person (4) that torments, terrorizes, or terrifies, and (5) serves no legitimate purpose."

This Court has acknowledged a distinction between online posts written "about" an individual and those sent "directly to" an individual. Weller v. Jackson (N.C. App. 2021) (unpublished) (citing State v. Shackleford (2019)). In Weller, the defendant posted online articles that discussed the plaintiff, but these posts were not directed at the plaintiff; therefore, the no-contact order was reversed. Unlike the criminal stalking statute in Shackleford, Chapter 50C concerning civil no-contact orders does not expressly include definitional language of communicating "to or about a person."

Here, Defendant posted online articles and opinions about Plaintiff and her eligibility as mayor; they were not directed to her. Even assuming Defendant was aware Plaintiff used social media, such awareness does not necessarily mean Defendant directed his online posts to Plaintiff. Furthermore, the purported purpose of "Anybody But Coble" to aid voters buttresses the notion that Defendant's publications were directed at undecided voters in Randleman, not Plaintiff.

Moreover, writing in the second person suggests the writer is writing directly to someone; we do not see the use of the second person in Defendant's posts. Defendant refers to Plaintiff in the third person throughout his publications in "Anybody But Coble." While writing in the third person is not dispositive, it tends to support Defendant's claim that his online communications were about Plaintiff…. Therefore, there is a lack of evidence to support a finding that Defendant stalked or harassed Plaintiff. Thus, we reverse the trial court's no-contact order. Accordingly, this Court need not address Defendant's First Amendment argument….

David W. Rubin and James C. Grant (FIRE) and Greg Gaught (Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.) represent defendant.

The post Court Ordered Critic of Ex-Mayoral Candidate to Stop "Publicly Writing, Printing, or Speaking [Ex-Candidate's] Name" appeared first on Reason.com.

[Eugene Volokh] Claim That U Texas Engaged in Viewpoint Discrimination in Forbidding 2024 Palestine Solidarity Committee Protest Can Go Forward

Eugene Volokh — Wed, 15 Apr 2026 12:32:51 +0000

From yesterday's longish decision by Judge Robert Pitman (W.D. Tex.) in Qaddumi v. Davis:

Qaddumi challenges his suspension (and the ongoing disciplinary record resulting from it) from UT as a violation of his First Amendment rights. The parties cite record evidence of the following facts. Qaddumi was involved in planning a protest, to include a "walk out of class," "guest speaker," and two "teach-in[s]," against ongoing violence in Gaza in April 2024 as a member of the Palestine Solidarity Committee ("PSC"). The planned protest activities were peaceful in nature.

UT, however, preemptively ordered the protest cancelled the night before it was scheduled to occur. UT alleges that it understood PSC to have the same plans for its protest as those organized at other universities by Students for Justice in Palestine ("SJP"), a separate national group, of which PSC is not a chapter. UT says it observed indicators that PSC aimed to set up tents and stay overnight in the outdoor areas of campus, in violation of UT rules. UT cites statements made in PSC's social media posts about intending to "occupy" campus, and the fact that at other universities around the country, SJP protesters had set up encampments causing, in UT's view, substantial disruption to those campuses.

More specifically, then-UT Austin President Jay Hartzell instructed UT staff members to email PSC leadership directing them to cancel the protest. PSC responded to the email, noting that their demonstration would comply with UT rules and would not involve an overnight encampment. Also, on April 23, 2024, the Texas Department of Public Safety, when considering its response to the event, conducted an analysis of the planned protest and found that there were "no indicators of planned or potential disruptive activity or credible threats at this time."

Qaddumi, along with other PSC members and UT students, proceeded with the April 2024 protest despite UT's emailed directive to cancel it. Qaddumi and the other students testify they agreed with UT officials, who approached them at the scene, to use "no masks, no tents, and no amplified sound" at the protest. The protestors began to march and received an order from members of the UT Police Department to disperse. Qaddumi relayed the directive and spoke with an officer about how to direct the protestors off campus. UT disputes this account and says that Qaddumi did not comply with the dispersal orders and instructions. UT police officers subsequently arrested Qaddumi as well as other students protesting with PSC.

UT initiated proceedings against Qaddumi for disruption, incitement, and failure to comply with directives. The UT conduct official responsible for pursuing Qaddumi's case, Melissa Wommack, argued Qaddumi was a leader of the protest and the messaging behind it, and responsible for "university-wide" disruption as a result. The Student Conduct Board found that Qaddumi should be subject only to a deferred suspension which would allow him to return to campus. Wommack appealed the panel decision. On appeal, UT Appellate Office John Dalton found that Qaddumi should be suspended for his presence and involvement in the demonstration as a leader. Dalton also found that Qaddumi did not comply with police dispersal orders.

Qaddumi was suspended for three semesters and banned from campus. He returned to campus in August 2025. UT retains a permanent disciplinary record of Qaddumi's suspension pursuant to its Institutional Rules. As such, Qaddumi may be required to disclose it on future graduate school applications or professional licensing applications.

The court analyzed the First Amendment issues this way:

If UT's decision to cancel the PSC protest with which Qaddumi was involved, and subsequently suspend Qaddumi for protesting, targeted PSC's viewpoint, opinion, or ideology, as opposed to amounting to a viewpoint-neutral application of a UT policy, then Qaddumi's suspension constitutes viewpoint discrimination. However, UT may be able to show that a viewpoint-based restriction was warranted because it reasonably foresaw substantial disruption or material interference with the campus environment from the April 24, 2024 protest. See Tinker v. Des Moines Indep. School Dist. (1969); Healy v. James (1972). ["May be" here appears to be used in the sense of "might be": The court assumed that Tinker's "substantial disruption" standard applies not just to K-12 school, as in Tinker itself, but also to viewpoint-based restrictions at universities. -EV]

That showing of a disruption must be substantial and material even considering that (1) as a university, UT is a center for vigorous debate and disagreement, such that speech that would disrupt a high school could be allowed at, and even fundamental to, UT; and (2) merely demonstrating in support of a disfavored or unpopular viewpoint is not a substantial, material disruption. And, speech may be a substantial and material disruption where it is likely to incite or produce imminent lawless action, to include (in the university context) violations of reasonable university rules or substantial interference to others' education.

{Inciting others to protest in violation of a directive not to conduct a protest, without violation of another university policy, would not constitute inciting others to violate a reasonable university rule…. [T]hough [the] state "may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining" permission from state official "in that official's boundless discretion." … Otherwise, a state university could cancel a protest at its sole discretion, then punish students for proceeding with a protest alone, without a showing of likely substantial, material disruption, as Tinker requires. In other words, the Court understands the reference to "reasonable campus rules" in Healy to mean those other than a directive forbidding the speech alone.}

By contrast, speech is not a substantial disruption when it generally advocates future rule-breaking, without being likely to incite or produce an imminent, substantially disruptive action, like (as in Hess v. Indiana (1973)) announcing generally that one intends to violate a campus rule later. Finally, if Qaddumi experienced viewpoint discrimination by way of his suspension, and the Tinker substantial/material disruption standard as applied in the university context is not met, the Court may issue a permanent injunction removing the disciplinary action resulting from the April 24, 2024 protest from Qaddumi's academic record.

As described in more detail below, these issues center on material fact questions appropriate for resolution at trial. Qaddumi cites record evidence (including UT Dean of Students Katie McGee's deposition testimony, and the cancellation notice itself), that UT ordered the April 2024 protest cancelled based on PSC's messaging on social media and more specifically because PSC's messaging aligned with that of SJP, a national pro-Palestine group. Qaddumi also cites record evidence, including testimony of Wommack, emails from the Dean of Students, and photos of counter-protestors on April 24, 2024, that students not from PSC were not restricted from protesting at the same time and in the same place and manner.

By contrast, UT argues that its officials neutrally applied time, place, and manner restrictions on speech. McGee testified that the decision to cancel the protest was based on anticipated violations of university rules and "safety considerations." Among other facts, UT alleges this perception was based on PSC's messaging on social media, which said that "we will take back our university and force our administration to divest," in the "footsteps" of SJP chapters at other universities.

Qaddumi also argues that UT's typical practice of not punishing similar expression made on behalf of other groups or causes shows that it "selectively enforced its rules against [Qaddumi] based on his viewpoint," in violation of the First Amendment. He styles this as a "First Amendment selective enforcement" basis for finding viewpoint discrimination. See Frederick Douglass Foundation v. D.C. (D.C. Cir. 2023) (protesters plausibly alleged viewpoint discrimination based on selective enforcement of a city ordinance on groups conveying a disfavored view).

He cites record evidence that UT officials have not preemptively canceled similar protests sharing other viewpoints, and that UT has not made mass arrests of students or barred students from campus based on demonstrations similar in time, place, and manner. This record evidence includes testimony from Hartzell that he did not think he had preemptively cancelled any other protest, and disciplinary records showing that Qaddumi is one of very few UT Austin students who have ever been barred from campus for demonstration activity. According to Qaddumi, the April 2024 protest plans unfolded similarly to plans for other protests which had taken place on UT's campus unimpeded, including Black Lives Matter protests in 2014 and protests of programming featuring Henry Kissinger in 2016.

By contrast, UT argues that "Qaddumi's comparator [protests] differ in material respects" and are not a valid basis for a finding of viewpoint discrimination. According to UT, one such material respect in which PSC's protest differed from the Black Lives Matter protests, or other protests, is that PSC students "announced plans to 'occupy' campus in violation of Institutional Rules and [] adopted tactics from a national organization intended to disrupt university operations."

Again, UT asks the Court to weigh competing accounts of the April 24, 2024 protest and other protests, which is an appropriate question for a factfinder at trial. Qaddumi's selective enforcement argument hinges on fact questions inappropriate for resolution at this stage, and summary judgment on this point will be denied.

Similarly, whether Tinker enabled UT to cancel the April 2024 protest is a quintessential fact question inappropriate for resolution on summary judgment. Again, UT claims it foresaw disruption, specifically because of social media communications from PSC conveying an intent to "occupy" campus and disrupt campus operations, and applied its policies neutrally in cancelling the protest. UT argues that it believed PSC would engage in a an "encampment-and-occupation" strategy, akin to the protestors at Columbia University organized by SJP. According to UT, PSC "reposted SJP's campaign on its own Instagram account," and SJP had declared an intent to "disrupt the university's operations" on other campuses, leading to UT's expectation of material and substantial disruption from PSC.

Qaddumi argues that PSC (as opposed to SJP) declared no intent to disrupt campus operations because, rather than announcing intent to create an encampment, PSC's messaging about its plans for April 24, 2024 conveyed an intent to host a peaceful protest in compliance with UT rules. Also, Qaddumi argues that PSC and SJP are "distinct organizations that merely share similar viewpoints," such that even substantial disruptions by a national group at other universities cannot lead to foreseeable disruption by PSC at UT.

Having reviewed the record described above … including PSC's social media messaging about the April 24, 2024 protest, testimony of student organizers and UT officials, and the Department of Public Safety's risk analysis of the event, the Court finds that a reasonable factfinder could conclude that substantial or material disruption of campus operations was not foreseeable to UT at the time it issued the directive to cancel the April 24, 2024 protest, such that summary judgment is not warranted.

Joseph Y. Ahmad and Sean F. Healey (Ahmad Zavitsanos & Mensing, PLLC) and Brian Rolland McGiverin represent plaintiff.

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

Eugene Volokh — Wed, 15 Apr 2026 12:01:25 +0000

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

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

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

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

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

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

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

[P]ast exposure to illegal conduct "does not in itself show a present case or controversy regarding injunctive relief." The Amended Complaint cites other instances of cancellations in other cities in November and December 2023, but these instances do not plausibly show a threat of real and immediate future injury. Indeed, the Amended Complaint states that SFMF held its third annual conference in 2025, although the location did not have hotel rooms and SFMF did not publicize the location of the conference until a few days before.

The Amended Complaint fails to allege any facts that plausibly present a real and immediate threat of future injury by Defendant Coral Springs Marriott. (Count I). SFMF plans to not make advance disclosure of the location of its future events, but there are no facts alleged that would tie that decision to any policy or future conduct by the Coral Springs Marriott. SFMF, therefore, fails to allege a plausible threat of future injury that would support standing to pursue its claim against the Coral Springs Marriott….

SFMF alleges that Defendant Eaton was quoted in January 2024 as stating that "if the Marriott Coral Springs reschedules with SFMF, [Defendant Parkland] Chamber of Commerce would cease doing business with the hotel." SFMF also alleges that when it was able to find another venue to host its 2024 convention, [Defendant] Kaufman "published another article again attempting to incite public outrage and force the conference's cancellation." In that article, Kaufman stated that the new venue "has agreed to allow the group to use their premises to further the spread of hatred and incitement."

{The Court notes that SFMF and Kaufman each accuse the other of incitement. Sadly, such is currently the state of discourse in these United States. And, to paraphrase Samuel Johnson, the First Amendment is the last refuge of the scoundrel.}

As a result, SFMF does not publicize the location of its conferences on its website or notify attendees of the event until days before it is to take place. SFMF argues that these facts show an imminent threat of future harm to establish standing. The Court disagrees.

First, there are no facts alleged beyond conjecture that the Chamber of Commerce, Eaton, and the Kaufman Defendants are likely to engage in similar future conduct or that they would successfully impede SFMF from booking venues in the future.

Second, there is no form of injunction which could remedy the situation. Eaton and the Chamber of Commerce threatened not to do business with the Coral Springs Marriott if SFMF's event were rescheduled; whatever their motivation, the Court cannot enter an enforceable injunction requiring them to patronize that venue.

Likewise, the Court cannot enter an injunction restraining Kaufman's future speech, however reprehensible or offensive it may end up being. Nor can the Court order the Defendants (or any party in any case) to adopt a charitable view of their neighbors. There is no showing in the Amended Complaint that a court-ordered injunction would redress SFMF's injury.

{The Court does not address the merits of SFMF's allegations that these Defendants exhibited racial, ethnic, or religious animus. At this stage the Court addresses only the standing issues raised by Defendants.}

These are issues that weigh heavily in a pluralistic society such as ours. Conflicts are bound to occur. Sometimes the conflicts are actionable. {For example, if the Chamber of Commerce denied membership to an otherwise qualified organization or individual due to race, religion, or other protected characteristic, the Court could fashion equitable relief.} But sometimes, such as in this case, the conflict does not support standing for injunctive relief under [the Civil Rights Act]. {And of course, such conflicts may occur because of clashing values and power imbalances. When the power imbalance switches to the opposite side as it always does over time, Defendants here will likewise have no standing to seek relief as the Plaintiffs of the future.} SFMF's Amended Complaint fails to establish standing to pursue injunctive relief.

The court also dismissed the claim under 42 U.S.C. § 1981, which has been read as generally forbidding race discrimination (but not other forms of discrimination, such as religious discrimination) in contracting:

SFMF identifies itself as a Muslim-community group. To accept SFMF's premise that prejudice against a Muslim community group is akin to racial and ethnic discrimination, the Court would need to equate MENASA ethnicity with the Muslim religion. The two are not the same. Indeed, Pope Leo XIV's recent trip to Turkiye and Lebanon highlighted the Christian presence that remains in those lands. Clearly, the Jewish religion is practiced in the Middle East, as are other religions and no religion. Similarly, not all Muslims are persons of color or MENASA descent. SFMF's Amended Complaint does not allege racial discrimination under § 1981.

And the court declined to exercise jurisdiction over state breach of contract and tortious interference with contract claims.

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[Josh Blackman] Today in Supreme Court History: April 15, 1931

Josh Blackman — Wed, 15 Apr 2026 11:00:53 +0000

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

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[Eugene Volokh] Open Thread

Eugene Volokh — Wed, 15 Apr 2026 07:00:00 +0000

[What’s on your mind?]

The post Open Thread appeared first on Reason.com.

[Eugene Volokh] Open Thread

Eugene Volokh — Wed, 15 Apr 2026 07:00:00 +0000

[What’s on your mind?]

The post Open Thread appeared first on Reason.com.

[Eugene Volokh] Sorry About the Doubled Daily Open Thread Glitch

Eugene Volokh — Wed, 15 Apr 2026 01:03:00 +0000

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

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[Eugene Volokh] D.C. Circuit Opinion About the No Fly List

Eugene Volokh — Tue, 14 Apr 2026 21:35:57 +0000

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

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

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

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

To carry out those responsibilities, TSA draws on the work of the Threat Screening Center (the Center), a multi-agency body administered by the Federal Bureau of Investigation (FBI). The Center maintains a centralized database of known and suspected terrorists, collecting and screening nominations from other agencies of individuals to include. That database is commonly known as the terrorist watchlist. The No Fly List is a subset of the terrorist watchlist: The Center adds a No Fly List designation to individuals on the terrorist watchlist if it determines that they meet one of four additional criteria, such as posing "a threat of engaging in or conducting a violent act of terrorism and [being] operationally capable of doing so." People included on the No Fly List are prohibited from boarding U.S. commercial aircraft or flying through U.S. airspace….

Saad bin Khalid is a U.S. citizen of Pakistani descent who moved between the United States and Pakistan as a child. He alleges that he was first subjected to enhanced screening in 2012, when he was 16 or 17 years old and sought to board a flight from Pakistan to the United States. After that flight, FBI agents met with Khalid to question him about his activities and contacts in Pakistan. In 2019, when Khalid again made plans to fly from Pakistan to the United States, he was prohibited from boarding his flight and told he could file a redress claim through the DHS TRIP process. He did so. While awaiting a response, he filed suit in the district court challenging, among other things, his maintenance on the No Fly List.

Through DHS TRIP, Khalid received a letter providing an unclassified summary of the FBI's reasons for placing him on the No Fly List. The letter described Khalid as "an individual who represents a threat of engaging in or conducting a violent act of terrorism and [is] operationally capable of doing so." The unclassified summary informed Khalid that "the U.S. Government continue[d] to have concerns about [Khalid's] association with a known terrorist organization" and his "candor" during the 2012 FBI interview concerning his "contacts and activities in Pakistan from 2008 to 2012."

Khalid responded through counsel, stating that he was a minor in 2012 and had been truthful to the best of his recollection in the FBI interview. Khalid also maintained that he had no association with any foreign terrorists, no wish to harm the United States or engage in terrorism, and no operational capability to do so.

Several months later, Khalid received a final decision from the TSA Administrator determining, "based on the totality of available information, including the information [Khalid] provided," that Khalid was "properly included on the U.S. Government's No Fly List." The letter informing Khalid of the decision noted that additional information relevant to the TSA Administrator's order had been withheld to protect information the disclosure of which would risk harm to national security or jeopardize law enforcement activities….

Khalid first contends that the TSA Administrator's order violates substantive due process by illegitimately restricting his right to free movement. That argument is foreclosed by binding precedent.

Substantive due process protects "fundamental rights" that are so "deeply rooted in our legal tradition" that the government may infringe them only through actions narrowly tailored to serve a compelling government interest. While Americans "enjoy[ ] 'the right to travel,'" that does not imply "a fundamental right to travel by airplane." Khalid may continue to travel to, from, and inside of the United States by means other than airplanes. As a result, the TSA Administrator's order maintaining Khalid on the No Fly List does not infringe a fundamental right, and Khalid's substantive due process claim fails….

Khalid next asserts that the TSA Administrator's order prevents his free movement and harms his reputation without constitutionally required procedural due process. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" … [W]we have previously concluded that TSA through DHS TRIP provides constitutionally adequate process to those on the No Fly List, even considering the significant private interest at stake when the government denies access to air travel. "[P]rotecting national security is a government interest of the highest order," and "alternatives to the No Fly List cannot be 100 percent effective against all potential threat[s]." Given that other modes of travel remain available to Khalid, the government's national security interest in restricting access to U.S. airspace "outweighs [his] individual travel preferences."

Khalid does not tip that balance in his favor by asserting an additional private interest in his reputation. "[I]njury to reputation by itself [is] not a 'liberty' interest protected under the Fourteenth Amendment." Rather, such injury must be accompanied by the loss or alteration of some "right or status previously recognized by … law." Khalid cites that standard, but fails to argue that, in addition to his claimed reputational harm from the government's instruction to airlines to refuse him boarding, he was deprived of some recognized right or status that tips his claim into the "stigma-plus" category. Paul v. Davis (1976) (explaining that a due process claim was appropriate where the government's stigmatizing action "deprived the individual of a right previously held under state law … to purchase or obtain liquor in common with the rest of the citizenry"). Accordingly, Khalid makes no showing that TSA denied him additional process he was due….

Khalid [also] argues that the TSA Administrator's order was arbitrary and capricious because "there is no appropriate, current evidence that Khalid is a threat to aviation security." He asserts that his No Fly List designation and the TSA Administrator's order maintaining him on the No Fly List "likely" relied on "inherently unreliable statements made by Khalid's estranged mother." Khalid also asserts that the No Fly List placement standards themselves are arbitrary insofar as they allow consideration of race, ethnicity, and religion, as well as First Amendment–protected "beliefs and activities." Finally, he contends that the lack of additional process renders the DHS TRIP process arbitrary and capricious….

After reviewing the public and ex parte record, we conclude that the TSA Administrator acted with adequate justification when he retained Khalid on the No Fly List. The Administrator's factfinding and analysis closely tracked the Center's recommendation. "Agencies can be expected to 'respect [the] views of such other agencies as to those problems' for which those 'other agencies are more directly responsible and more competent.'" Nothing in Khalid's submission rendered it unreasonable for the TSA Administrator to credit the factual analysis of the Center—the entity that oversees a centralized repository of intelligence information, maintains the terrorist watchlist, and makes all No Fly List determinations in the first instance. Nor did our review of the ex parte record otherwise suggest that the TSA Administrator's decision making was arbitrary and capricious or unsupported by substantial evidence.

In the unclassified portion of his final order, the TSA Administrator agrees that placing Khalid on the No Fly List "based upon his status as a young Muslim male with Pakistani roots" would be improper and denies that the order rests on such grounds. And the ex parte record confirms that, at least as to Khalid, TSA's actions were based on consideration of relevant, permissible factors….

Khalid lastly argues that the No Fly List involves an agency decision of a "major question" without express congressional authorization. The major questions doctrine does not apply here…. Congress has authorized TSA to "use information from government agencies to identify individuals … who may be a threat to civil aviation or national security" and "prevent [such] individual[s] from boarding an aircraft." As Khalid acknowledges, that provides statutory authority for TSA's use and maintenance of the No Fly List….

A companion decision also rejects Khalid's challenge to his inclusion on the Terrorist Watchlist, though that decision is 2-1, written by Judge Henderson and with a dissent by Judge Pillard.

Joshua P. Waldman, Sharon Swingle, and Catherine Padhi represent the TSA.

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

Eugene Volokh — Tue, 14 Apr 2026 20:44:56 +0000

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

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

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

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

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

From Judge Walker's concurrence:

In an oral order, the district court limited what the Government could do with certain aliens covered by a recent presidential proclamation. Some of the covered individuals were inside the United States, and others were on planes, in flight, outside U.S. air space. Less than an hour after the oral order, the district court issued a written order that prohibited the removal of certain aliens currently in the United States. But unlike the oral order, the written order did not protect anyone already removed from U.S. territory. It prohibited only future removals and said nothing about those already removed.

After the written order, the Government took actions that the oral order had arguably prohibited (and that the written order did not prohibit). So if the effect of the (broader) oral order survived the (narrower) written order, the Government's conduct would raise a host of difficult questions. But before issuing its oral order, the district court said, "I will issue a minute order memorializing this so you don't have to race to write it down."

In my view, the district court's "you don't have to … write it down" line simplifies this otherwise complicated case because it made the written order supersede the oral order. The Government did not violate the oral order while it was in effect. And at no point did the Government violate the written order that superseded it.

I join Judge Rao's opinion in full. However, I write separately to emphasize just one point: the importance of the district court's "you don't have to … write it down" line….

Much of the ink spilled over this case concerns a question I have not yet addressed because the question is completely irrelevant to whether the Government can be prosecuted for contempt: What did the Government do to the people who were on the planes when the district court issued the oral and written orders?

At the time of the oral order — and later at the time of the written order — they were on planes, beyond U.S. airspace, in U.S. custody, and heading to Central America. When their planes reached El Salvador, after the written order, the Government transferred them to Salvadoran custody.

Why do I say that is irrelevant? Because they had already been removed when the written order was issued. Which means the written order didn't cover them. Which in turn means their transfer to Salvadoran custody didn't violate the written order (which, again, had superseded the oral order).

If the written order had been violated — or perhaps even if the oral order had been violated before it was superseded by the written order — the Government's conduct would raise a host of important questions. Those questions and others have been ably discussed by the district court, the Government, the plaintiffs, enough amici to field a football team, everyone on last year's panel, several judges concurring or dissenting from the denial of en banc review, the author of today's majority opinion, and our dissenting colleague.

Many of those questions, however, are not properly presented. That's because the Government did "not [dis]embark[ ] anyone on [a] plane" while the oral order was in effect. Nor has it "remov[ed] members of [the] class (not otherwise subject to removal) pursuant to the Proclamation" since the written order was issued….

And from Judge J. Michelle Childs' dissent:

Contempt of court is a public offense, and the fate of our democratic republic will depend on whether we treat it as such. In the many forms in which it can be committed, contempt degrades the power that the People, through their Constitution and Congress, gave the federal courts. Without the contempt power, the rule of law is an illusion, a theory that stands upon shifting sands. For contempt offends not only the authority of whichever judge has been subjected to such incursions, but it also offends our system of governance. Addressing contempt is, therefore, a responsibility that is part and parcel of the court's duty to interpret and apply the laws of the governed.

And yet, a court's inquiry into contempt is a responsibility that can be just as difficult as it is sacred. The complexity of this task explains why, for some contempt proceedings, factfinding is required for a trial court to fairly identify contemnors, their contumacious acts, and then hold them accountable. Thus, we cannot judge the early actions of a trial court in such a proceeding heavy-handedly, for contempt of court is not addressed for the district court's vanity; it is done to preserve and enforce our law. As a court of review, we preserve the sanctity of these proceedings by reviewing judgments of contempt with an eye towards vindicating the dignity and authority of the courts while simultaneously respecting the individual liberties and rights of contemnors. Here, unfortunately, we have overstepped in adjudicating this balance of interests.

Today, we are not reviewing a judgment of contempt made by the trial court, nor are we even reviewing a referral for a contempt prosecution. Instead, we examine an interlocutory order from a district court that, irrespective of its rulings in the underlying case, is just trying to understand the events of a single weekend in March, including the actions which may have led to the willful violation of one of its orders. This is important because the district court's earlier attempt to identify potential contemnors, make findings of fact, and address alleged contumacious behavior was rejected by an earlier panel of this court. In obedience to that earlier panel's writ of mandamus—which vacated its probable cause order and factual findings—the district court dutifully and carefully started on a clean slate, calling a hearing for testimony about the actions of the alleged contemnors. Unsurprisingly, testimony is a hallmark of the factual inquiry that judges of this court had identified as a proper step before initiating criminal contempt proceedings.

Instead of properly rejecting the current petition to end the district court's factual inquiry, the majority has determined that no further facts are needed because, as a matter of law, the alleged contemnors just cannot have committed contempt. In so doing, the majority has stymied the district court's inherent and statutory powers and done so in a way that will affect not only these contempt proceedings but will also echo in future proceedings against all litigants. Now, any litigant can argue, based on their preferred interpretation of a court's order, that they did not commit contempt before contempt findings are even made. And now, in any challenge where one may wave the wand of separation of powers, the Government knows it can petition this court for mandamus to relieve it from such proceedings. I cannot agree with an approach that sets such precedent….

Brett A. Shumate, Yaakov M. Roth, and Tiberius T. Davis represent the government.

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

Eugene Volokh — Tue, 14 Apr 2026 18:25:02 +0000

["[S]he was told that a Mammy doll which depicts slavery was in the garage of the building where they worked.... [W]hen she saw the doll she was overcome with emotions because it was so humiliating.... [S]he could not control her emotions and could not think clearly."]

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

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

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

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

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

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

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

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

The SIF [State Insurance Fund] contends that the claimant has not demonstrated a work-related injury involving stress. The SIF argues that the claimant was exposed to a wooden mammy plaque in her employer's garage. However, this level of offense does not rise to a compensable claim since the claimant should be expected to deal with minor stresses and offenses that a similarly situated person is expected to handle. The SIF also agues that the medical evidence is inconsistent in the claimant's reporting of the incident….

In a claim for a psychological injury based on a diagnosis other than post-traumatic stress disorder, acute stress disorder, and/or major depressive disorder, there must be evidence to show that "'the stress that caused the injury was greater than that which other similarly situated workers experienced in the normal work environment.'"

"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence. To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis. '[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship.'"

Here, we find that the claim is disallowed based on the insufficient evidence supporting causal relationship and the inconsistent reporting of the mechanism of injury by the claimant. While we agree that racist imagery does not belong in the workplace, and exposure to it can be the cause for anxiety, we do not find that the evidence supports causal relationship.

{The file contains a medical report from January 26, 2023, that noted that the claimant presented with increased anxiety, stress and depressed mood. It was also noted that the claimant reported that she recently saw a derogatory remark that was directed at her in a room at her place of employment. It was indicated that the claimant was very insulted and that she is depressed and anxious because of a very stressful work environment.

Dr. Campana, the claimant's treating physician, evaluated the claimant on January 30, 2023, and the assessment was adjustment disorder with anxiety and depressed mood.

On March 24, 2023, Dr. Campana examined the claimant indicating that the claimant reported that she was targeted at work which exacerbated her anxiety.

In a notice of decision filed January 14, 2025, the WCLJ found prima facie medical evidence for an exacerbation of pre-existing mental health conditions of adjustment disorder with depression and anxiety per the January 26, 2023 of Dr. Campana.

Dr. Joseph, the carrier's consultant, examined the claimant on February 28, 2025, and noted that the claimant reported that she was racially harassed at work to the point of being emotionally overwrought and had to leave her position. Upon evaluation, he diagnosed the claimant with adjustment disorder with anxiety and severe depression. He noted that the claimant's psychiatric symptoms are causally related to her work environment which caused distress to the point where she was unable to work. He stated that the work environment certainly exacerbated her existing mental health.}

Most importantly, the claimant saw Dr. Campana the very next day after the alleged incident in question and there is no mention of any incident like the claimant is alleging. Further, the report of that examination notes anxiety going back an entire year before the alleged incident, which renders the claimant's testimony not credible.

Further, the claimant offers no persuasive evidence of other racist treatment at work. It is apparent from the reports that Dr. Campana was not informed of any exposure of a Mammy doll, which the claimant now maintains is the basis of her stress.

Further, Dr. Joseph found causal relationship but what the claimant reported was also inconsistent as she reported that she was harassed and yelled at by her employer but made no reference to a Mammy Doll, which again contradicts her testimony. Therefore, like Dr. Campana, Dr. Joseph's opinion on causal relationship is not persuasive as it is based on the claimant's version of events, which lacks credibility. Based on the totality of the evidence, we find that the claim is disallowed due to the lack of persuasive evidence supporting causal relationship….

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