From U.S. v. SGO Corp. Ltd., decided Tuesday by Judge Kathleen Williams (S.D. Fla.):

For a six-year period, the Government investigated SGO executives for their role in a money laundering and bribery scheme related to the May, 2016 Philippine elections. The investigation culminated in a six-count indictment ("First Indictment"), returned on August 8, 2024, which charged [executives of] SGO and Smartmatic … [with] conspiracy to violate the Foreign Corrupt Practices Act ("FCPA") (Count I); violations of the FCPA (Count II); conspiracy to commit money laundering (Count III); and international laundering of monetary instruments (Counts IV, V, and VI). The FCPA "prohibits officers of a domestic concern from making corrupt payments to a 'foreign official.'"

SGO was not charged. In fact, SGO had been cooperating with the Government since 2021, years before the First Indictment was returned. {Although the Parties may dispute the breadth and quality of SGO's efforts to cooperate, there is no question that SGO and the Government were engaged in discussions and the exchange of documents related to this matter.}

The original trial date was set for October 7, 2024 … [but was eventually reset for 2026]….

As the court notes, the Trump Administration was skeptical of FCPA prosecutions, deprioritized FCPA enforcement generally, and "elected to close FCPA investigations into multiple companies." But despite that, in October 2025, the government added SGO as a defendant in the case. SGO then moved to dismiss the superseding indictment, alleging vindictive and selective prosecution, and sought discovery in support of that motion, "premised on political events that have embroiled Smartmatic in the wake of the 2020 election":

Since that election, multiple high-profile individuals and organizations connected to then-Former President Donald Trump have alleged that Smartmatic, a subsidiary of SGO, interfered in the election…. President Trump has also reposted content blaming Smartmatic for interfering in United States and Venezuelan elections, calling Smartmatic "disgraceful" and expressing that those who "rigged" the 2020 election must pay. In response to the statements by President Trump's confederates, Smartmatic brought various defamation suits, which are largely ongoing. SGO contends that President Trump's personal animus against SGO and assertion of its rights against President Trump's confederates precipitated the filing of the Superseding Indictment….

The court lays out the demanding standard for defendants' attempts to get discovery related to allegations of vindictive or selective prosecution, but concludes that in this case the standard was met. A brief excerpt (for more, including citations to precedents to which the court analogizes this case, see the full opinion):

First, a vindictive prosecution claim may be supported by evidence that the Government bucked a trend in enforcement activity in prosecuting the defendant…. [W]hile the Blanche and Bondi Memos and Executive Order 14209 explicitly announced an intention to rein in and limit FCPA enforcement, particularly against corporations, SGO was charged, nonetheless.

Second, a vindictive prosecution claim may be supported by the timing between a defendant's assertion of a right and the allegedly vindictive prosecutorial act…. [Here,] it is telling that the Government chose not to indict SGO originally, that SGO was charged only after President Trump reassumed office and after SGO had been cooperating with the Government for years, and that the Government has presented no evidence adduced between the First and Superseding Indictments warranting SGO's addition as a defendant.

Third, a vindictive prosecution claim may be supported by the Executive, prosecutor, or law enforcement's stated positions, even when they do not explicitly admit that the case was brought against the defendant for an improper purpose…. The Court finds probative not just that President Trump signed an executive order regarding FCPA enforcement but also that President Trump has personally expressed animus towards SGO regarding election interference. Indeed, President Trump's confederates were sued by SGO for making false claims regarding SGO's role in interfering with the 2020 presidential election that President Trump lost….

After evaluating the totality of the circumstances in this case, the Court has concluded that limited discovery regarding SGO's Motion to Dismiss is warranted…. [T]ere is "some evidence" tending to support SGO's Motion to Dismiss: the individual Defendants were charged over a year prior to when the Superseding Indictment against SGO was returned; for years prior to the initiation of this case and up until the Superseding Indictment was returned, SGO was cooperating with the Government; the Government charged SGO amidst a public shift away from charging defendants for similar FCPA violations; SGO brought suit against the President's confederates prior to being charged; and the President has expressed at least some degree of animus towards SGO. "It may well be that no fire will be discovered under all the smoke, but there is enough smoke here … to warrant the unusual step of … find[ing] out how this unusual prosecution came about."

[T]he Government shall provide the Court with the following for ex parte and in camera review under seal:

1. The prosecution memoranda regarding the initial indictment in this case and the subsequent Superseding Indictment of SGO;
2. All communications, including emails, memoranda, and correspondence, between the Department of Justice—including principals and personnel in the Offices of the Attorney General, the Associate Attorney General, the Deputy Attorney General, and the Principal Deputy Attorney General—and former Acting United States Attorney Hayden O'Byrne, United States Attorney Jason Reding Quiñones, and any member of the past and present prosecution team relating to or discussing the decision to charge SGO and when to charge SGO from January 1, 2025 to October 16, 2025; and
3. Any emails sent by either former Acting United States Attorney Hayden O'Byrne or United States Attorney Jason Reding Quiñones to SGO's former and current counsel from January 1, 2025 to October 16, 2025.

The post Court Allows Discovery as to Vindictive Prosecution Defense by Smartmatic's Parent Company appeared first on Reason Magazine.

The indictment alleges that on July 23, 2024, Mr. Spitzer posted the following message on the website for the American Federation of Teachers, a labor union, regarding its president ("Individual #1"):

[Individual #1] is an ignorant incompetent cunt that should be worried for her safety. Fact that she is still alive. Liberal nazi deserves the bullet to head. Resign before she ends like what happened to trump at his speech. They won't miss fat bitch.

The indictment alleges that the post violated 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce any communication containing a threat to injure another person.

Mr. Spitzer argues that assuming the allegations in the indictment were true, it fails to state an offense because the posting was not a "true threat," or even a threat at all, and thus is protected by the First Amendment. As he sees it, the posting was simply political speech about a public figure and did not advocate the use of force or violence against Individual #1.

{In an effort to contextualize the posting, Mr. Spitzer points to an internet article in which Mike Pompeo, the former U.S. Secretary of State, described Individual #1 as "the most dangerous person in the world"; examples of "conservative politicians and commentators" criticizing her approach to school closures during the pandemic; and examples of Individual #1's own political statements. But these are not facts that the Court can consider at this juncture because they fall outside the four corners of the indictment.}

The government responds that whether Mr. Spitzer's posting qualified as a true threat is a question for the jury and that a pretrial determination of the sufficiency of the evidence is procedurally improper. The government further asserts that Mr. Spitzer improperly relies on facts not alleged in the indictment to contextualize the posting. The government has the better argument….

Considering the allegations on the face of the indictment—as this Court must—the Court finds that a jury could conclude that Mr. Spitzer's alleged posting constituted a "true threat." There are at least four separate references to harming or killing Individual #1, including: that she should be "worried for her safety"; that she "deserves a bullet to [the] head"; that unless she resigns she risks being shot similar to the attempted assassination of President Donald J. Trump; and that she will not be missed. In addition, the posting makes an oblique reference to her still being alive, which when combined with the other statements, can reasonably be interpreted as evidencing a present intent to intimidate and place Individual #1 in fear of bodily harm or death. The screed's liberal use of epithets further tends to show that the posting was not simply on a matter of public concern, but rather a threat against Individual #1 personally….

In his reply, Mr. Spitzer relies on the Supreme Court's decision in Watts v. United States, to argue that "political hyperbole" is not a "true threat." True enough, but Watts is distinguishable. In that case, the Supreme Court overturned the conviction of Watts, an 18-year-old Black protester who was charged with threatening President Lyndon B. Johnson during a political rally at the Washington Monument during the 1960's. During the protest, Watts said:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.

The Supreme Court held that considering the full context of the statement—including that it was conditional upon Watt's joining the military (which he said he would not do) and that the listeners laughed at his statement—it was "political hyperbole," not a true threat. In contrast, Mr. Spitzer's alleged statement is much more threatening for the reasons explained above. Also, significantly, Watts was decided after trial, based on a developed evidentiary record, which underscores why dismissal at this juncture is not appropriate.

Accordingly, dismissal of the indictment is not warranted. But, of course, Mr. Spitzer is free to renew his challenge to the sufficiency of the evidence at trial….

Brent A. Gray and Eric John White represent the government.

The post Prosecution Over Threat to American Federation of Teachers President Randi Weingarten Can Go Forward appeared first on Reason Magazine.

Evidence exists that Givens harvested points from a number of examinees' scores and then added them to other examinees' scores within the same test administration. Thus, she unilaterally elevated some examinees' scores to the minimum passing score of 270 or greater. Brech also identified at least one instance in which score alterations may have reduced an examinee's score-who otherwise would have passed-to a failing score. And in at least one instance, the individual who should have received the top score on the Arkansas Bar Examination had their score reduced thereby naming another examinee as the recipient of the highest score on the exam. If these allegations are true, these actions constitute an unprecedented breach of public trust.

The full statement from the court:

An internal review by Robert Brech, Executive Director of the Supreme Court of Arkansas's Office of Professional Conduct and Programs, has uncovered extensive irregularities involving the Court's Office of Professional Programs and the administration of the Arkansas Bar Examination. The matter was turned over to state and federal authorities.

As of today, the Prosecuting Attorney's Office for the Sixth Judicial District filed formal criminal charges against Nancie Givens for 65 counts of tampering with a public record under Arkansas Code Annotated section 5-54-121 in connection with the alleged altering of numerous Arkansas Bar Examination scores and the deletion of files purportedly intended to conceal that misconduct. The charges followed a criminal investigation initiated in April 2026 by the Arkansas State Police and the Federal Bureau of Investigation. As always, all defendants are presumed innocent until proven guilty in a court of law.

Moving forward, we are committed to holding those involved accountable, taking continued corrective oversight of the Arkansas Bar Examination, and determining the appropriate course of action.

* * * * *

In February 2026, Givens, the former Executive Director of this Court's Office of Professional Programs, resigned. At that time, Robert Brech was serving as Executive Director of the Court's Office of Professional Conduct. Following Givens's resignation, the Court directed Brech to supervise the Office of Professional Programs, which oversees the administration of the Arkansas Bar Examination.

Upon his review of the Office of Professional Programs' records and administrative operations, Brech discovered that a large number of files and electronic communications were modified or deleted in early January 2026. Approximately 11,400 files were deleted or rendered unavailable. Most of those files included Arkansas Bar examinee applications, profiles, and examination score sheets that the Office of Professional Programs was required by this Court's rules to retain for twenty-five years.

Brech immediately notified a member of this Court, who directed him to determine the extent of the missing records and identify any other irregularities. On the basis of his review of the remaining files, Brech identified numerous discrepancies involving Arkansas Bar Examination scores across at least eight test administrations between July 2020 and July 2025. At that time, the matter was referred to the appropriate state and federal authorities.

Evidence exists that Givens harvested points from a number of examinees' scores and then added them to other examinees' scores within the same test administration. Thus, she unilaterally elevated some examinees' scores to the minimum passing score of 270 or greater. Brech also identified at least one instance in which score alterations may have reduced an examinee's score-who otherwise would have passed-to a failing score. And in at least one instance, the individual who should have received the top score on the Arkansas Bar Examination had their score reduced thereby naming another examinee as the recipient of the highest score on the exam. If these allegations are true, these actions constitute an unprecedented breach of public trust.

The vast majority of examinees who were previously informed that they had passed the Arkansas Bar Examination by the Office of Professional Programs did, in fact, pass the exam. Those examinees affected will be notified by the Office of Professional Conduct as soon as possible upon definitive confirmation of their status.

The Court is working with state and federal authorities to recover deleted and missing data, analyze all test administrations within that time frame, and determine the full scope of this grave and potentially criminal abuse of power. The people of Arkansas deserve, and the Court is committed to providing, total transparency in this matter. However, further disclosure will be forthcoming in a manner so as to not compromise the ongoing state and federal criminal investigations. Accordingly, additional disclosures will be limited as those efforts remain underway.

As an immediate step, independent of any state or federal criminal investigation or prosecution, Nancie Givens has been referred to the Office of Professional Conduct for investigation of extensive violations of the Arkansas Rules of Professional Conduct. See Ark. R. Prof. Conduct 8.1(a) & 8.4(a)-(e). Furthermore, new testing procedures and security measures were implemented with the February 2026 administration of the Arkansas Bar Examination to ensure systemic accountability and safeguard the integrity of the examination.

* * * * *

We recognize the profound consequences for affected examinees, the Bar, and the public at large. Our paramount concern is safeguarding litigants, the integrity of the legal profession, and public confidence in the administration of justice. While these matters remain under criminal and administrative investigation, we commit to pursue continued corrective measures in an effort to reestablish confidence in our institution.

The post Arkansas Bar Official Allegedly Transferred Points from Some Bar Examinees to Others appeared first on Reason Magazine.

On October 20, 2025, Plaintiff's counsel filed a document entitled Opposition to Defendants Motion to Alter Judgment. Within that pleading the Plaintiff's counsel falsely cited two cases, State v. Baker, 290 Kan. 842, 235 P.3d 424 (2010) and Gannon v. State, 298 Kan. 110 310 P.3d 1196 (2014) for propositions of legal authority that are inconsistent with the case cited. In addition, there were no fewer than six false citations to non-existent Kansas case law. When confronted by these misrepresentations and facing a Motion for Sanctions, Plaintiff's counsel did not deny the allegations or explain how he came up with the false citations, he simply responded that the legal propositions contained in his pleadings were accurate and that his "citation irregularities were technical and clerical…".

Citations to non-existent cases can never be considered technical or clerical errors. They are not formatting or citation errors. They are unprofessional and sanctionable. This Court suspects that Plaintiff's counsel used a generative artificial intelligence program as an aid in drafting his pleading, but no such admission was forthcoming from counsel. Counsel's response to the claim for sanctions is simply the proposition of "no harm, no foul". In addition, this is not the only time Plaintiff's counsel has submitted false citations to a district court. See Anderson v. Aldrich, Douglas County District Court Case No. DG-2025-CV-429, Memorandum Opinion dated March 13, 2026.

Kansas District Court judges must rely on the veracity of citations presented to the court by counsel. The timeline for making decisions at the district court level is measured in minutes, hours, or days. We do not have law clerks to review pleadings for citation errors or misrepresentations. We must rely on attorneys to act professionally in preparing and filing pleadings to be considered by the Court. Plaintiff's actions have failed in that regard. In addition, those actions appear to violate Rule 3.3 of the Code of Professional Responsibility. (The actual adjudication of such a violations a matter for determination by the Kansas Board for Discipline of Attorneys.)

In addition, this Court held a status or pretrial conference in this case on January 29, 2026, for the purpose of preparing for the trial of the attorney fees claim. Defense counsel prepared a proposed journal entry for that hearing which did include the recitation of orders made by the court on pending garnishment proceedings. On January 30, 2026, Plaintiff's counsel filed objections to the proposed journal entry and then proceeded to file a journal entry prepared by Plaintiff's counsel representing that it had been approved by defense counsel. Plaintiff's counsel did not have the consent to file said journal entry. The factual scenario is set forth in the Defendant's Motion for Relief from Order filed on January 30, 2026. It is incorporated herein by reference.

Not only was the presentation of the proposed journal entry a violation of Rule 170 as it applies to the filing of journal entries, Plaintiff's counsel's action appears to be an additional violation of Rule 3.3 of the Code of Professional Responsibility by representing opposing counsel's approval when it had not been obtained. The Court vacated the offending journal entry by Memorandum Decision on February 2, 2026. On March 12, 2026, the Court approved and filed the journal entry for said hearing.

District court judges need to rely on counsels' representations on approvals for journal entries submitted in the e-file system. Often that approval is designated by a /S/ symbol on the signature line. It is not unusual to receive 20 or 30 documents per day for review and approval. In fact, some dockets in this district can result in filings more than 100 on any given day. Many of these documents come in days after the hearing. Strict compliance with Rule 170 is mandatory and not an option….

Plaintiff's counsel initially did a good job representing his client and got the relief she needed to finish school and graduate on time…. As previously noted, this Court's calculation of the attorney fee award was initially set at $101,640.00.

However, this Court is of the opinion that it is appropriate to strike 50% of that fee as a sanction for Plaintiff's falsifications of citations and misrepresentations noted above. The Plaintiff is awarded the sum of $50,820.00 for her attorney fees incurred herein. Judgment shall be entered in favor of Plaintiff for that amount.

Although this sanction may seem substantial to some, Plaintiff's counsel breached the bond of trust that the Court imposes on attorneys in their professional capacity as officers of the court….. The Court further finds that the Clerk of the District Court is directed to provide a copy of this Memorandum Order to the Kansas Board of Profession Responsibility for their consideration….

An appeal is pending; you can read plaintiff's lawyer's brief as to the fees here.

The post Attorney Fee Award Cut from $100K to $50K, Partly as Sanction for Hallucinated Citations appeared first on Reason Magazine.

NOTE: The following post is largely adapted from last year's November 7 post on the same subject.

Since 2007, I have advocated designating May 1 as an international Victims of Communism Day. The May 1 date was not my original idea. But I have probably devoted more time and effort to it than any other commentator. In my view, May 1 is the best possible date for this purpose because it is the day that communists themselves used to celebrate their ideology, and because it is associated with communism as a global phenomenon, not with any particular communist regime. However, I have also long recognized that it might make sense to adapt another date for Victims of Communism Day, if it turns out that some other date can attract a broader consensus behind it. The best should not be the enemy of the good.

As detailed in my May 1 post from 2019, November 7 is probably the best such alternative, and over time it has begun to attract considerable support. Unlike May 1, this choice is unlikely to be contested by trade unionists and other devotees of the pre-Communist May 1 holiday. While I remain unpersuaded by their objections on substantive grounds, pragmatic considerations suggest that an alternative date is worth considering, if it can  thereby attract broader support.

The November 7 option is not without its own downsides. From an American standpoint, one obvious one is that it will often fall close to election day. On such occasions, a November 7 Victims of Communism Day might not attract as much attention as it deserves, because many will - understandably - be focused on electoral politics instead. Nonetheless, November 7 remains the best available alternative to May 1; or at least the best I am aware of.

For that reason, I am once again  doing a Victims of Communism Day post on November 7, in addition to the one I do on May 1. If November 7 attracts more support, I may eventually switch to that date exclusively. But, for now, I reserve the options of returning to an exclusive focus on May 1, doing annual posts on both days, or switching to some third option should a good one arise.

In addition to its growing popularity, November 7 is a worthy alternative because it is the anniversary of the day that the very first communist regime was established in Russia. All subsequent communist regimes were at least in large part inspired by it, and based many of their institutions and policies on the Soviet model.

The Soviet Union did not have the highest death toll of any communist regime. That dubious distinction belongs to the People's Republic of China. North Korea probably surpassed the USSR in the sheer extent of totalitarian control over everyday life. Pol Pot's Cambodia may have surpassed it in terms of the degree of sadistic cruelty and torture practiced by the regime, though this is admittedly very difficult to measure. But all of these tyrannies - and more - were at least to a large extent variations on the Soviet original.

Having explained why November 7 is worthy of consideration as an alternative date, it only remains to remind readers of the more general case for having a Victims of Communism Day. The following is adopted from this year's May 1 Victims of Communism Day post, and some of its predecessors:

The Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny.

Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.

While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.

November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism.  The post explains why the lion's share of the horrors perpetrated by communist regimes were inherent flaws  of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. Some of these other factors, especially the last, probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship is  virtually inevitable in a socialist economic system where the government controls all or nearly all of the economy.

While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's policies have resulted in political repression, the starvation of children, and a massive refugee crisis - the biggest in the history of the Western hemisphere. The removal of President Nicolas Maduro has so far done little to change the nature of that regime.

In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was "the greatest geopolitical catastrophe of the century." It is also telling that most communists in Russia and elsewhere have joined with nationalists in backing Putin's line on the war.

In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).

China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not - so far - reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.

Far-left support for Hamas since the horrific October 7, 2023 terrorist attack is yet another reminder of the inherently evil nature of communist ideology. Backing terrorism is part of a long history of support for repression and mass murder. Not all extreme socialists of the type who support Hamas are communists. But the latter are a subset of the former.

In the West, the popularity of "democratic socialism" in some quarters is a sign that many have failed to learn the lessons of the communist experience. Democratic socialism has many of the same flaws as its authoritarian counterpart, and - as the Venezuelan case shows -  is unlikely to stay democratic for long, if implemented. Ironically, in their support for sweeping government control of the economy, democratic socialists have much in common with MAGA nationalists.

Victims of Communism Day is also a good time to remember our duty to help those victims. Among other things, it is unjust to deport migrants fleeing oppressive Marxist dictatorships, like those Cuba, Nicaragua and Venezuela, as the Trump Administration seeks to do to hundreds of thousands who entered the US legally under the CNVH program. This year, Trump ramped up efforts to deport Cubans back to their communist oppressors.If some on the left tend to ignore the evils of socialism, many on the nationalist right have been exacerbating the plight of its victims.

In sum, we need Victims of Communism Day because we have never given sufficient recognition to the victims of the modern world's most murderous ideology or come close to fully appreciating the lessons of this awful era in world history. In addition, that ideology, and variants thereof, still have a substantial number of adherents in many parts of the world, and still retains considerable intellectual respectability even among many who do not actually endorse it. Just as Holocaust Memorial Day serves as a bulwark against the reemergence of fascism, so this day of observance can help guard against the only ideology with an even greater number of victims.

The post November 7 as Victims of Communism Day - 2026 appeared first on Reason Magazine.

The post Today in Supreme Court History: November 7, 1922 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

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

New on the Short Circuit podcast: We look at 100 years of zoning and chances of zoning reform, in court and in city councils, with Harvard's Molly Brady and Vice Mayor of Cambridge, Mass., Burhan Azeem.

And on the latest episode of the Law Office History podcast, Christian Burset of Penn Law explains how it was hard to be a textualist in Olde Timey England because Parliament wasn't very clear when writing its statutes and it was hard to find copies of them anyway.

1. Sure, some observers would think that the interesting part of this First Circuit decision is the clash of parental rights in schools and a vaccine mandate of general applicability. (Despite recent SCOTUS decisions, no preliminary injunction will issue.) But, for us, the big news is that the First Circuit wrote an opinion in single-spaced Times New Roman. It's a start!
2. Political group asks for a P.I. ahead of NYC's mayoral election, claiming it wants to run ads but that certain disclosure laws that apply to the ads are unconstitutional. The district court denied the motion and the group appealed. Second Circuit: The election was in, like, 2025. This is moot. You didn't say anything about the next election. Dissent: Actually, they did, especially if you look at the underlying complaint. Further, this disclosure regime is unconstitutional.
3. Due to the evisceration of the Chevron doctrine the evisceration of the Administrative State continues. This time it's the Fourth Circuit eviscerating the . . . deportation of a Dominican woman working for an elder care provider who may have checked the wrong box on an employment form.
4. District court sua sponte remands a removed case because the notice didn't adequately establish the plaintiffs' citizenship. Can the remand order be appealed? That depends, explains the Fifth Circuit, on whether the defect was jurisdictional or procedural. If jurisdictional, it can't be appealed no matter what. If procedural, it also can't if raised by a party. Since here it was raised sua sponte, though, the judge acted outside the statute, and that remand can be appealed.
5. Ethiopian man slated for deportation to anywhere besides Ethiopia files a habeas petition six months after an immigration court deems him removable. When the gov't tries to put him on a flight to Cameroon (as it said it intended to do months earlier), he files emergency motions to prevent deportation. The district court denies his motions, but, while his appeal is pending, grants his habeas petition and orders his release into the U.S. Fifth Circuit (per curiam): Appeal dismissed as moot. None of this sits very well with Judge Oldham, whose statement respecting the dismissal describes the case as a "travesty" involving "gamesmanship," an "avalanche of self-contradicting gibberish," and a "magistrate judge's surprise switcheroo."
6. Tabletop role-playing game aficionado develops a game designed to help people with anxiety and other psychological disorders. He enters into a licensing agreement with a company that promotes "geek therapy"—therapeutic techniques that incorporate geek culture. Things go south and the designer sues to company. The district court dismisses all his claims. Will he throw a saving roll on appeal? Fifth Circuit: Natural 1.
7. Public employees in Indiana can have union dues deducted from their paychecks. Since 2021, teachers alone must take additional steps to do so, including signing a form that reads, "I am aware that I have a First Amendment right . . . to refrain from joining and paying dues to a union." A district court held that the statement was compelled speech in violation of . . . the First Amendment. So, Indiana amended it to "The State of Indiana wishes to make you aware . . . " Seventh Circuit: The rewrite resolves the compelled speech problem, but making teachers jump through additional hoops is viewpoint discrimination in violation of . . . the First Amendment. Affirmed.
8. Missouri man is convicted of being a felon in possession. Eighth Circuit precedent bars his Second Amendment claims but what about a Fifth Amendment claim? After all, states have different laws, and it would be unfair to disarm someone whose previous criminal conduct might be a misdemeanor in a different state. Eighth Circuit: Well, you were convicted of selling crack, which is a felony in all 50 states.
9. Idaho physician challenges state abortion ban as applied to situations where an abortion is necessary to prevent serious and lasting—but not life-threatening—harm to pregnant women. District court grants injunction and Idaho seeks a stay pending appeal. Ninth Circuit: Granted. Concurrence: I mean, c'mon. Dobbs resolved all this. Dissent: Roe recognized two abortion rights: one privacy-based and one health-based. Dobbs only rejected the former, and history and tradition support the latter.
10. Boise State student and trans athlete Lindsay Hecox challenged Idaho's Fairness in Women's Sports Act, but when the Supreme Court took her case, she disclaimed any interest in playing collegiate sports covered by the law and suggested her case was moot. The Supreme Court disagreed because she was still an enrolled student, upheld the law, and remanded to the Ninth Circuit. Ninth Circuit: But now she has withdrawn from the school, so the case really is moot, despite her claims that she wishes to re-enroll.
11. Facebook invokes terms-of-service violations to terminate a content creator's decade-old account with 25 million followers. Creator: Sure, our ads are "scammy" and "blatant clickbait," but Facebook breached its agreement in deleting our account. Ninth Circuit: Even assuming you have an enforceable contractual right, you're seeking to meddle with Facebook's publishing discretion, which Section 230 bars.
12. Football fans obtained a multi-billion-dollar jury verdict against the NFL, arguing that its anticompetitive agreements made them pay inflated prices for Sunday Ticket. Zoinks! The district court rejected the verdict, excluding the fans' expert as unreliable and entering judgment as a matter of law for the NFL. Ninth Circuit: Reversed from the booth. Expert opinions aren't unfounded or unreliable merely because they're impeachable. (Your humble summarist would submit that the Denver Broncos are super.)
13. In Bivens news, exactly three people can win under Bivens. The terrorist Abu Hamza (complaining of the conditions of his life imprisonment) is not one of those three people. Therefore, he cannot win under Bivens. Tenth Circuit: Yup.
14. You might be tempted to read this Eleventh Circuit opinion because a customer used "Cash App" to see if they could get themselves some "Scooby Snacks." But you'll get more out of it for the drug dealer defendant's (unsuccessful) attempts to request a Franks hearing and exclude hearsay.
15. And in en banc news, the Fourth Circuit will not review its decision upholding a P.I. that allows fired CIA employees, who worked in DEI-related positions, to pursue internal employment appeals.
16. And in further en banc news, the Fifth Circuit will not initially be going en banc in an appeal concerning whether Congress has power under the Commerce Clause to ban machine guns. The vote almost went over the top, though, 9-8.
17. And in additional en banc news, the Fifth Circuit will reconsider its decision that Trader Joe's committed an unfair labor practice when it fired someone the dissent called "the sort of employee who haunts the nightmares of HR managers everywhere."
18. And in wild, yet now not that newsworthy, en banc news, on Monday the Ninth Circuit granted a stay of a district court's TRO against the federal gov't related to the gov't's demand that California and Washington segregate certain ballots. Then, later that day, the Ninth Circuit granted a motion for the case to go en banc. Then, on Tuesday, the Ninth Circuit (the eleven-judge en banc panel) reinstated the initial stay. The plaintiffs then asked for "full court rehearing en banc," i.e., that all 29 active circuit judges plus the senior judge on the initial panel hear the case. Ninth Circuit (still on Tuesday): Full en banc? We never go full en banc.

Protectionism alert! This week, IJ sent a letter to officials in Clewiston, Florida, warning that the city's food truck ordinance violates the Florida Constitution. Food trucks in Clewiston may only operate on Mondays and Tuesdays and must stay at least 200 feet away from any open restaurant unless that restaurant gives written permission. Those two days are not a coincidence. Mondays and Tuesdays are when most brick-and-mortar restaurants in Clewiston are closed, meaning the ordinance permits food trucks only when they are unlikely to compete with established businesses. The 200-foot buffer zone fulfills a similar protectionist function, giving existing restaurants veto power over whether a competitor can set up nearby.

The post Short Circuit: A roundup of recent federal court decisions appeared first on Reason Magazine.

(a) The citizens of this State shall have the right to keep and bear arms, for:
(1) Their common defense;
(2) Lawful hunting and recreational use; and
(3) Any other lawful purpose.
(b) The right to keep and bear arms under subsection (a) of this section includes without limitation the possession and use of:
(1) Ammunition;
(2) Firearm accessories; and
(3) Firearm components.
(c) The right to keep and bear arms under subsection (a) of this section is a natural, fundamental, and individual right that shall not be infringed.

The post Arkansas Constitution's Right to Bear Arms Provision Strengthened appeared first on Reason Magazine.

The taboo word is often used to draw a listener's attention, emphasizing the following noun or adjective. For example: "This is really, really fucking brilliant" [that's a reference to the Bono incident that led to FCC action -EV] or "He thinks he's a fucking scoutmaster, Rip Van fuckin' Winkle."

When emphatic and idiomatic swearing is overused, it can lead to a form of English sometimes referred to as "fuck patois." This is a style where swearing is so pervasive that it becomes almost a defining feature of the language. An example of this can be found in the story of a soldier who says, "I come home to my fucking house after three fucking years in the fucking war, and what do I fucking well find? My wife in bed, engaged in illicit sexual relations with a male!"

I think there's more going on in the soldier story than just fuck patois—indeed, what makes it emphatic might be the absence of "fuck" in the closing phrase—but in any event it's pretty funny.

Note that the term "fuck patois" is often credited to Tom Wolfe.

The post "Emphatic Swearing" appeared first on Reason Magazine.

From Magistrate Judge Kenneth Schroeder's Report and Recommendation Sept. 22 in Doyle v. James, affirmed Wednesday by Judge John Sinatra (W.D.N.Y.), plaintiff's allegations:

Plaintiff Paul Doyle ("Doyle") is the Senior Pastor at Cornerstone Church in Batavia, New York. Cornerstone is a small, rural church with a history of service and community outreach. Cornerstone has worked to build relationships with communities of color and was aggressive in their assistance to victims of the mass shooting in Buffalo.

Plaintiff Clay Clark ("Clark") is the owner and operator of The Thrive Time Show, a highly successful business podcast. Clark has twice been named the US Small Business Association Entrepreneur of the Year and is the recipient of other business awards.

"ReAwaken America" is a conservative political movement that hosts events throughout the country. The ReAwaken America Tour ("the Tour") was scheduled to host an event in Rochester, New York on August 12, 2022 at the Main Street Armory. However, after community members and local politicians spoke out against the event, the Armory cancelled it.

The Tour then reached out to Doyle to see if Cornerstone would be willing to host the event. Doyle met with groups from Rochester to try to understand their concerns and concluded that "the Tour was not what was being portrayed in the media and by government officials." Doyle thus agreed to host the event at Cornerstone "due to his strong belief that free speech should not be restricted and those who attempt to exercise it should not be intimidated, particularly by government officials." The event was scheduled for August 11-13, 2022.

On August 3, 2022, New York Attorney General Letitia James sent a letter addressed to Clark and General Michael Flynn—a co-organizer of the Tour—to Doyle's home address "c/o Cornerstone Church." Plaintiffs allege that the letter was "nothing less than an attempt to covertly intimidate and threaten the Plaintiffs into shutting down the event."

James's letter stated, in part:

As New York's top law enforcement officer, I have significant concerns that the ReAwaken America Tour's upcoming event at the Cornerstone Church in Batavia, New York on August 12 and 13 could spur extremist or racially motivated violence. These concerns center around the event's proposed dates, which coincide with the five-year anniversary of the deadly Unite the Right rally in Charlottesville, Virginia, and past extremist statements made by yourselves and the other featured speakers on the tour.

I am especially concerned about featured speakers' regular allusions to white nationalist ideals connected to the "Great Replacement Theory," a conspiracy theory that warns of white genocide and efforts to replace native born Americans with immigrants. The theory is frequently linked to violent actions, including the racially motivated mass shooting that killed 10 people at a Tops Friendly Markets store in Buffalo. Especially in light of this racist mass shooting, and other recent episodes of racially motivated violence in New York and throughout the country, the Office of the Attorney General is concerned that such rhetoric could contribute to violent or unlawful conduct at the ReAwaken America Tour's upcoming event….

The Office of the Attorney General writes to remind you that New York law prohibits racially motivated violence, harassment, or interference with another person in the exercise of their civil rights. New York Civil Rights Law § 79-n empowers the Office of the Attorney General to investigate acts of violence, intimidation, threats, or harassment directed at people based on a belief or perception regarding an individual's race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation. In addition to actual damages, any person who violates this statute can be held liable for $5,000 in penalties for each violation.

Additionally, New York Civil Rights Law § 40-c prohibits discriminating against another person in the exercise of their civil rights—including their right to peacefully protest—based on similar protected characteristics. Finally, New York Executive Law § 63(12) empowers the Office of the Attorney General to take action against any business engaged in significant fraud or illegality—including the violation of New York's civil rights laws.

The Office of the Attorney General has a duty to protect New Yorkers from extremist and racially motivated violence. We stand ready to investigate any violation of the laws above and, if necessary, to enforce them to the fullest extent available. You are therefore instructed to take all necessary steps to ensure that the event complies fully with the requirements of New York's civil rights laws and all other applicable state and federal statutes.

Your cooperation in ensuring a peaceful and law-abiding event will be greatly appreciated.

Plaintiffs allege that James's "inferences towards racial discrimination and fraud associated with the church and the event were publicized in numerous media outlets … which injured Pastor Doyle's reputation, that of his church, and the reputation of Mr. Clark as well." They further allege that James made no reasonable inquiry to verify her alleged concerns and that, had she done so, she would have learned "about the generous history of Cornerstone Church, the upstanding reputation of both Plaintiffs, and the fact that the Reawaken America Tour had not a single publicized act of violence at any of their events, nor has the tour been legitimately accused of any crimes, illicit behavior, or the violation of any laws or ordinances." Plaintiffs also allege that they had "reached out to law enforcement and local government officials to ensure the safety of the event and that all local rules, laws, and ordinances would be followed."

Plaintiffs further allege that no ReAwaken America event has ever been associated with the racial theories or violence with which James's letter purported to connect them, and her statements were "negligent, reckless and a dereliction of her duty to exercise due diligence in her representation as Attorney General and in doing so, is an abuse of power."

Plaintiffs allege that James's politically motivated letter created a "smear" on their names and damaged their community relationships. The publicity surrounding James's letter resulted in "numerous cancellations of ticket sales by patrons who originally planned to attend the event prior to hearing the derisive false reports."

Finally, plaintiffs allege that, as a result, they were forced to hire additional security to ensure the safety of the participants and attendees. Ultimately, the event "went off without a single issue." …

The court held that plaintiffs had adequately alleged the letter was unconstitutionally coercive:

To state a claim that the government violated the First Amendment through coercion, "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." …

Here, after linking plaintiffs and the event's speakers to racist theories and past incidents of racist violence, defendant listed various state anti-discrimination laws and their penalties, concluding that her office "stand[s] ready to investigate any violation of the laws above and, if necessary, to enforce them to the fullest extent available." Plaintiffs allege that they perceived this letter as a thinly veiled threat meant to cause them to cancel the event, accompanied by the specter of prosecution.

As this Court stated in its prior RR&O [Report, Recommendations & Order]:

Here, defendant's letter has a heavy-handed, ominous tone and tells plaintiffs that: (1) she considers their own past statements concerning and "extremist," (2) she believes that "such rhetoric" could lead to "violent or unlawful conduct" at the upcoming event; and (3) she "stands ready" to investigate and enforce violations of New York laws, whose penalties she enumerates.

Such statements might reasonably be understood as threats as opposed to a government official's speech that is "nothing more than a well-reasoned and sincere entreaty in support of his own political perspective." …

[D]efendant's assertion that her letter can only be construed to convey a request to avoid or prevent unlawful conduct is unavailing at the pleading stage. In NRA v. Vullo (2024), the Supreme Court rejected such an argument:

For the same reasons, this Court cannot simply credit Vullo's assertion that "pursuing conceded violations of the law …is an obvious alternative explanation" for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns… Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

Given this context, the fact that defendant's letter did not cause plaintiffs to cancel their event does not preclude a finding that defendant's letter was an unlawful attempt to coerce them to do so. See Okwedy v. Molinari (2d Cir. 2003) ("A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights.")…. Therefore, construing the allegations of the complaint in plaintiffs' favor, and considering the above authorities, the Court concludes that plaintiffs have plausibly alleged that they "reasonably understood" defendant's letter to be an attempt to suppress the exercise of their First Amendment rights. Bantam Books, Inc. v. Sullivan (1963).

The court also held that plaintiffs had adequately alleged the letter was unconstitutionally retaliatory:

"Where a private plaintiff sues public officials, the Second Circuit states the elements [of a retaliation claim] as follows: (1) Plaintiffs have a right protected by the First Amendment; (2) Defendants' actions were motivated or substantially caused by Plaintiffs' exercise of that right; and (3) Defendants' actions caused Plaintiffs some injury." … [D]efendant does not contest that plaintiffs satisfy the first element of a retaliation claim…. [And] plaintiffs' complaint alleges facts which, construed as true, would allow a reasonable person to infer that defendant was motivated to send her letter due to the political content of plaintiffs' speech ….

[D]efendant argues that plaintiffs fail to adequately plead that defendant's actions caused them legally cognizable harm. The Court discussed the issue of harm in its prior RR&O in the context of standing, noting that "[v]arious non-speech related harms are sufficient to give a plaintiff standing" for purposes of a First Amendment retaliation claim. In particular, the Court reviewed authority holding that "reputational harms" may constitute such an injury. The Court observed:

Here, plaintiffs' complaint is replete with allegations that defendant's letter falsely associated them with racist, "white nationalist ideals;" the "Great Replacement Theory;" a racially motivated shooting in Buffalo, New York; and other "racially motivated violence." Plaintiffs allege specific damages flowing from defendant's statements: injury to plaintiffs' reputations; harm to Doyle's community relationships, and specifically with communities of color; and an increased likelihood of violence towards plaintiffs….

Thus, construing the above allegations in plaintiffs' favor, the Court concludes that they have sufficiently alleged injury for purposes of their retaliation claim….

The magistrate judge also concluded that the law was sufficiently well-established that it recommended denying qualified immunity to the defendants. An excerpt:

[I]t has long been clearly established that "implied threats to employ coercive state power to stifle protected speech" violate the First Amendment. Hammerhead Enters., Inc. v. Brezenoff (2d Cir. 1983).

In 2003, the Court of Appeals reversed the dismissal of a complaint filed by plaintiffs against the Borough President of Staten Island who sent a letter to a billboard company with whom plaintiffs had contracted to produce and display billboards conveying plaintiffs' beliefs that, under biblical teachings, homosexuality is a sin. Okwedy v. Molinari (2d Cir. 2003). The letter stated that defendant and many community members found the billboards offensive, noting that the company "derives substantial economic benefits" from billboards on Staten Island and asking the company to contact defendant's legal counsel to discuss the matter. The billboard company took the signs down the same day.

The Court of Appeals held that plaintiffs had adequately pled a First Amendment claim; that a jury could find that the defendant's letter contained "an implicit threat of retaliation;" and that a "public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights." …

And the court held that plaintiffs had adequately alleged defamation, despite defendant's claim of absolute privilege:

"… [A]n executive official is absolutely privileged to publish false and defamatory matter of another in the exercise of his executive function if the matter has some relation to the executive proceeding in which the official is acting." … In determining whether absolute privilege applies, the court considers two factors: (1) the personal position or status of the speaker, and (2) the subject matter of the statement and the forum in which it is made in light of the speaker's public duties. Under the second prong, it is not sufficient that the subject matter of defendant's speech merely "relate to" his public duties. Rather, the speech must be made "during his performance of an essential part of his public duties."

Under this authority, defendant is not entitled to dismissal of plaintiffs' defamation claims based on absolute immunity. The general duties of the New York Attorney General are set forth in New York Executive Law § 63. As relevant here, they include: the prosecution and defense of all proceedings in which the state is interested; the investigation, upon the request of the governor or other state officials, of certain indictable offenses; upon the request of the commissioner of labor or the state division of human rights, the prosecution of civil actions for discrimination; the prosecution of criminal offenses; and application to state courts for orders enjoining fraudulent or illegal acts.

In her current papers, defendant also cites N.Y. Exec. Law § 79-n(3), which provides that the attorney general may apply in the name of the state to a court to enjoin unlawful bias-related violence of intimidation. She also cites a penalty provision of an equal rights law that states that notice of any action under that section must be served on the attorney general.

However, the letter to plaintiffs was not written to fulfill any of these duties because defendant had initiated no investigation, prosecution, or any other governmental process against plaintiffs. In fact, defendant does not argue that plaintiffs had engaged in any actual or suspected acts that would fall within the scope of her law-enforcement authority…. Absent some factual predicate for a government official to believe that a citizen may have engaged in conduct that warrants the scrutiny of his or her office, that official is performing no duties that the doctrine of absolute privilege is meant to protect….

Tricia Sophia Lindsay represents plaintiff.

The post Lawsuit Against New York AG Letitia James over Letter Alleging Group's Event Was Connected to "White Nationalist Ideals" … appeared first on Reason Magazine.

The Florida Legislature recently enacted a new law that allows state officials to designate certain groups "domestic terrorist organizations" (DTOs). Soon thereafter, Florida's Governor and Cabinet designated Plaintiffs CAIR-Foundation, Inc., and CAIR-Florida, Inc., as DTOs. The designations take effect on November 5, 2026. At that point, Plaintiffs and others supporting them will be subject to criminal and civil penalties for certain activities. In this action, Plaintiffs contend the new law (or parts of it) and the DTO designations violate their First Amendment freedoms and due process protections….

This is Florida's second effort to designate Plaintiffs as terrorist organizations. Previously, the Governor issued an executive order that designated Plaintiffs as terrorist organizations and prevented them "or 'any person known to have provided material support or resources' to [them] 'from receiving any contract, employment, funds, or other benefit or privilege' from executive or cabinet agencies or from any county or municipality of the state." This court preliminarily enjoined enforcement of the executive order, finding it likely violates the First Amendment. [See this post on that decision. -EV] The Governor appealed, and the appeal remains pending.

After this court's decision, the Florida Legislature enacted HBs 1471 and 1473, which created a DTO designation process. The Florida Department of Law Enforcement later promulgated Emergency Rule 11RER26-8, which implements this legislation. Pursuant to the legislation and rule, Florida's Chief of Domestic Security issued a written notice of intent to designate Plaintiffs as DTOs…. [T]he Governor and Cabinet held a public meeting, at which they approved the designations….

{[U]nder [Fla. Stat.] § 775.33(3), "[a] person who knowingly provides material support or resources to a designated … domestic terrorist organization" commits a first-degree felony. See also Fla. Stat. § 775.33(1)(d) ("'Material support or resources' means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation. The term does not include medicine or religious materials.").}

A few preliminary points are in order. First, much of Plaintiffs' case is not at issue at this stage. Plaintiffs allege that state officials sought to punish them for their earlier speech and for their religious views. They have a First Amendment retaliation claim, but they did not move for preliminary injunctive relief based on that claim. They also have a preemption claim that is not yet at issue….

[Second], the issue at this stage is not whether Plaintiffs are, in fact, terrorist organizations…. Plaintiffs say "[t]heir shared mission, rooted in faith, is to enhance the public's understanding of Islam, protect civil rights, promote justice, and empower American Muslims." Defendants, on the other hand, say Plaintiffs operate as fronts for Hamas and the Muslim Brotherhood. Again, Plaintiffs claim the State reached the wrong decision on that score—and that it violated their Fourteenth Amendment rights in reaching its decision without providing due process. But Plaintiffs do not assert any standalone constitutional right to a factually correct decision on the question of whether they are terrorist organizations.

[Third], an entity's designation as a terrorist organization is indeed consequential. Plaintiffs have shown that the designations, upon taking effect, will cause significant disruption, essentially leading to a closure of all their Florida operations. Because one Plaintiff (CAIR Florida, Inc.) operates exclusively in Florida, it says it will shut down entirely. At this stage, based on undisputed statements in Plaintiffs' declarations, I accept these representations as true.

But while the designations and the state laws that authorize them may have broad implications, the constitutional issues Plaintiffs present are relatively narrow. The claims ask whether Plaintiffs were afforded due process before the State made the designations and whether the designations (and legal consequences flowing from them) violate Plaintiffs' speech or association rights….

The court rejected plaintiffs' due process claims, largely on the grounds that state law offered enough process for determining whether an entity indeed qualified as a DTO, including "[t]he availability of [a] state-court appeal" (something plaintiffs didn't take advantage of). The court also rejected their right to association claims, reasoning in part:

[The] prohibition against "knowingly provid[ing] material support or resources to a designated … domestic terrorist organization" … targets material support of DTOs—not their associations. As Defendants argue, Arcara v. Cloud Books, Inc. (1986), is instructive. In that case, the Supreme Court upheld enforcement of a civil statute that authorized the forced closure of a business used for prostitution and lewdness—but also used to sell adult books. The closed business argued "that the effect of the statutory closure remedy impermissibly burden[ed] its First Amendment protected bookselling activities." But that "argument prove[d] too much, since every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities." Indeed, "[o]ne liable for a civil damages award has less money to spend on paid political announcements or to contribute to political causes," and "a thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement." The same principle applies here.

{There is some overlap between Plaintiffs' association claim and their content-based speech regulation claim. As explained below, Plaintiffs have shown a likelihood of success as to the content-based claim to the extent the statute precludes their continued use of legal counsel based on the "expert advice" provision. Arguably, that same restriction would violate Plaintiffs' association rights by precluding their association with counsel.

But Plaintiffs did not focus on legal advice in the section of their motion addressing their association claim. This makes some sense, as the arguments about counsel fit more neatly within Plaintiffs' content-based [speech restriction] claim than their broader association claim. For these reasons—and because, as a practical matter, the same limited injunction would issue—I choose at this preliminary stage not to further explore any distinction between these speech and association claims as to the "expert advice" restriction.}

The court also rejected the argument that DTO status automatically causes an organization to be treated as a "criminal gang" and thus subject to various criminal penalties. But the court held that the DTO regime's material support prohibition was likely unconstitutional, at least as to provision of material support in the form of legal advice:

[M]ost of what constitutes "[m]aterial support or resources" under Florida law is not speech:

"Material support or resources" means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation. The term does not include medicine or religious materials.

But the law expressly covers things that are speech, namely providing "expert advice," which includes legal advice. Plaintiffs argue this provision would preclude them from receiving their own lawyers' services in furtherance of this litigation, and Defendants have not shown otherwise.

As the parties note, the emergency rule includes this provision:

The Department will not consider there to be cause for prosecution for a violation of section 775.33 or Chapter 874, F.S., based solely on the provision of legal counsel or legal support services to the organization for purposes of representing or providing advice in connection with existing or anticipated litigation concerning a designation or defending against a criminal prosecution.

That does not preclude relief here for several reasons. One, it says what the [Florida Department of Law Enforcement] (FDLE) considers to be the case; it does not purport to bind the twenty State Attorneys or the Attorney General. Two, the rule does not cover Plaintiffs' providing support to each other in connection with the litigation—or any other third party or employee who might provide "expert advice" in connection with the litigation. And three, it purports only to cover limited types of cases—those in connection with litigation "concerning a designation" or related to criminal prosecutions. It would not, for example, cover the provision of legal services in connection with the pending Eleventh Circuit appeal in CAIR I.

Therefore, to the extent § 775.33(3) restricts interactions with counsel or others in support of litigation, it regulates speech based on content and is therefore subject to strict scrutiny. Strict scrutiny is a difficult standard to satisfy, and Defendants have not done so here. Defendants argue in a footnote that "[t]he designation statute creates a scheme of judicial review and thus cannot plausibly be construed to authorize the prosecution of CAIR employees who participate in judicial review." But even assuming that this purposivist interpretation is correct, the law still would not authorize employees or outside counsel to assist in this litigation—or any litigation other than the statutory appeal Plaintiffs have not taken.

In arguing that the law can survive strict-scrutiny review, Defendants say "combatting terrorism is a textbook compelling interest." Even so, Defendants must show that their restriction—here, precluding Plaintiffs from using or employing legal counsel for any purpose (save, perhaps, for the statutory appeal Plaintiffs do not pursue)—is the least restrictive means available to advance that interest. They have not done so. Indeed, their assertion that the law allows Plaintiffs to use legal counsel to preserve their non-designation status through one form of litigation (the statutory appeal) only undermines any suggestion that prohibiting Plaintiffs from using counsel to preserve that status through another form of litigation (this case) is the least restrictive means.

Defendants rely heavily on Holder v. Humanitarian Law Project, which upheld a federal material-support statute against a First Amendment challenge. But in that case, the Court relied in large part on the federal interest in addressing international terrorism. The Court declined to "suggest that Congress could extend the same prohibition on material support … to domestic organizations." It also did not hold that the government could preclude the organizations from employing legal counsel to assist them in the litigation.

The bottom line is that the challenged law does, in some respects, restrict speech based on content. It criminalizes any third party's (including counsel's) providing "expert advice"—of any kind—to Plaintiffs. It thus restricts Plaintiffs' First Amendment right to receive such speech. See Stanley v. Georgia (1969) (noting that the First Amendment protects the right to receive speech just as it protects the right to make speech).

Aside from litigation activity, however, Plaintiffs do not offer specificity as to any other "expert advice" they wish to receive that § 775.33(3) would arguably criminalize. Thus, I agree with Defendants that much of Plaintiffs' argument is hypothetical. There was some discussion at the hearing regarding "training," which also could constitute speech the law would prohibit, but Plaintiffs have not advanced any specific argument regarding training they wish to receive. The relief available is a product of Plaintiffs' litigation choices. Cf. Holder (evaluating "the particular speech plaintiffs propose to undertake" and noting that "future applications of the material-support statute to speech or advocacy [may not] survive First Amendment scrutiny").

Still, Plaintiffs have shown it likely they will succeed in proving the "expert advice" restriction as applied to their receipt of legal services violates their First Amendment rights. As to all other claims, they have not shown a likelihood of success on the merits….

The post Florida Ban on Material Support to "Domestic Terrorist Organizations" Can't Be Applied to Legal Advice to CAIR appeared first on Reason Magazine.

On November 3, 2026, U.S. Senator Amy Klobuchar (Minnesota-Democratic Party) was elected Governor of Minnesota. It is expected that, at some point, she will resign her U.S. senate seat, then take up the governor's position, and subsequently make a temporary appointment to fill her then-vacant senate seat. That dance of musical chairs happens from time-to-time. But some have also reported that Klobuchar must resign her senate seat. CBS News quoted political science professor David Schultz (Hamline University, Minnesota): "At some point she's going to have to step down as U.S. [S]enator." That might be true pragmatically—as a matter of politics. And sometimes, federal and state constitutional and statutory law bar dual-officeholding. Sometimes, but not all the time. In these circumstances, the law does not expressly bar dual-officeholding where, as here, the two positions are U.S. Senator and Minnesota Governor.

The U.S. Constitution's Incompatibility Clause (Article I, Section 6, Clause 2) bars U.S. Senators and Representatives from concurrently holding certain other federal positions. The position of governor is a state, not a federal position. So, this provision has no application here.

The Minnesota State Constitution has a similar provision (Article IV, Section 5). That provision bars Minnesota's state (not U.S.) Senators and Representatives from holding other state and federal positions. Klobuchar is not a state Senator; rather, she is a U.S. Senator. So, this provision has no application here.

The federal double-dipping statute, 5 United States Code Section 5533 bars drawing two salaries for two positions, where both positions are at the federal level. It has no application to state positions, e.g., governor. Moreover, it does not bar actual dual-officeholding; rather, it bars receiving two streams of full-time compensation or salary. Again, this provision has no application here.

Beyond these express provisions of positive law relating to incompatible offices, there are two common law doctrines, announced by state and federal courts, relating to incompatible offices. The more narrow doctrine prohibits one person holding two positions where one position supervises the other position or determines its compensation. Here, the two positions—U.S. Senator and Minnesota Governor—neither supervise one another, nor determine one another's compensation. So, this doctrine has no application here.

Finally, there is a more expansive common law doctrine relating to incompatible offices. This doctrine holds that, where as a practical matter, one person cannot carry out both sets of duties connected to two positions, the two positions are incompatible. It might be argued that a governor, particularly in an emergency, must reside within her state, and that a U.S. Senator, should generally be on hand, at short notice, to carry out Senate business. Given the physical distance between Minnesota and Washington, D.C., it is not entirely frivolous to suggest that this doctrine might act as a bar here. But the bar here is not distance, it is whether one can practically carry out both sets of duties. Governors frequently leave their states for short periods of time—even for vacations. That's allowable as long as they are within reach by telephone or video link, and as long as they can return quickly in the event of an emergency. Likewise, the U.S. Senate can choose to accommodate a Senator with responsibilities distant from D.C.—the Senate could allow participation in debate by video link, and it could allow remote voting, as long as the votes are reasonably authenticated. In other words, it is not a slam dunk that this expansive doctrine should apply on these facts, particularly given that this doctrine is merely a judicial creation lacking any foundation in both the U.S. Constitution and the Minnesota Constitution. More generally, we should not allow ad hoc judicial creations to supersede democratic elections and add to the qualifications and incompatibilities expressly set out in positive law.

Having one person hold two government positions—including state governor and U.S. Senator—is not a particularly good result. But the fact that a result is bad does not mean, without more, that that result is barred by our law. Not every bad thing is illegal; not every bad result is unconstitutional. And pretending the U.S. Constitution and Minnesota Constitution bar what we think is bad today elevates our intuition into legal duties only by undermining what the legal system actually commands. And if today, our intuition is vindicated, we might do well to remember that tomorrow, it might be someone else's intuition being vindicated and in ways that we might come to regret.

Among those who have considered this issue, I expect that many (and, perhaps, most) believe, as Professor Shultz believes, that Klobuchar must resign her senate seat before she becomes Minnesota's governor. That is, of course, the received wisdom. And that should tell you all you need to know about . . . the received wisdom.

[Seth Barrett Tillman, Associate Professor. Maynooth University School of Law and Criminology, Ireland. Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad.]

The post Senator-Governor Klobuchar and the Problem of the Received Wisdom appeared first on Reason Magazine.

Pioneer Farmers … is a Minnesota nonprofit corporation that "organizes and conducts annual public demonstrations of historical steam-powered agricultural equipment at Itasca State Park and elsewhere for educational and historical purposes." Pioneer Farmers also owns real property near the north entrance of Itasca State Park in Park Rapids. Appellant Gerald W. Fenske is a former member of Pioneer Farmers. Fenske's membership was revoked in May 2023 for, according to allegations by Pioneer Farmers, "repeated disruptive behavior and conflicts with other members."

In December 2025, Pioneer Farmers petitioned the district court for an HRO [harassment restraining order] against Fenske, alleging that Fenske engaged in harassment "directed at" Pioneer Farmers and its "directors and officers." Along with the petition, Pioneer Farmers filed an affidavit by its president, who averred that, following the revocation of his membership, Fenske made "false and/or misleading complaints to various Minnesota state agencies" about Pioneer Farmers. In response, Pioneer Farmers sent Fenske two cease-and-desist letters.

According to the president's affidavit, after receiving the cease-and-desist letters, Fenske contacted individual members, made "unfounded ownership claims regarding equipment" on Pioneer Farmers' property, and continued "to attempt to stir discord among associated organizations." Fenske also maintained a personal web page titled, "Itasca Pioneer Farmer's Show Cancelled—Allegations of Unsafe Boiler Operation Reason for Cancellation." The president averred that Pioneer Farmers had never cancelled its annual event "for that reason."

In January 2026, the district court conducted a two-day evidentiary hearing on the petition. In March 2026, the district court granted the HRO. The district court found that (1) Fenske maintained "a publicly accessible website containing statements about [Pioneer Farmers'] annual event that imply the event's cancellation, resulting in confusion to the public," and (2) Fenske "contacted three board members after being served with a Cease & Desist letter." Based on these findings, the district court determined that "reasonable grounds" showed that Fenske "engaged in harassment which has or is intended to have a substantial adverse effect on safety, security, or privacy" of Pioneer Farmers.

The HRO prohibited Fenske from contacting Pioneer Farmers directly or indirectly, including "taking pictures of a protected person without permission" of Pioneer Farmers. The HRO also prohibited Fenske "from being within 500 feet" of Pioneer Farmers' property. But the district court declined to prohibit Fenske from contacting Pioneer Farmers' "officers and directors," because Pioneer Farmers "failed to identify those individuals." …

The court held that, under Minnesota precedents, an HRO could be granted to prevent harassment of a corporation, and not just an individual; and it held that the HRO was justified under the state statute (which, in relevant part, applies on a showing that defendant engaged in "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target"):

If a district court finds reasonable grounds to believe the HRO respondent has engaged in harassment, it may issue an HRO that "orders the respondent to have no contact with another person." Fenske does not challenge the district court's finding that Fenske harassed Pioneer Farmers or the HRO's prohibition on Fenske having "direct or indirect contact" with Pioneer Farmers. {Fenske [also] does not challenge the HRO's reference to "a protected person," which is not defined in the HRO.} Fenske challenges only the HRO's prohibition against "taking pictures" of a protected person without the permission of Pioneer Farmers.

We understand Fenske to argue that photography is not direct or indirect contact under section 609.748, subdivision 5(a)(2)…. "The phrase 'no contact' is clear and understandable. The common meaning of the word 'contact' is a coming together or touching, as of objects or surfaces, the state or condition of touching or of immediate proximity, or connection or interaction; communication." In other words, the common understanding of "contact" includes immediate proximity, interaction, and communication.

Photography often involves immediate proximity to or interaction or communication with the subject of the photograph. Photography that involves any of these, therefore, is within the common meaning of "contact." Because the HRO statute authorizes the district court to prohibit Fenske from contacting Pioneer Farmers, and contact includes photography that involves immediate proximity to or interaction or communication with a protected person, the district court acted within its discretion by prohibiting Fenske from taking photographs of Pioneer Farmers. We modify the HRO to clarify that it prohibits photography that involves immediate proximity to or interaction or communication with a protected person without Pioneer Farmers' permission.

The court rejected a First Amendment challenge to the photography restriction. It concluded that the restriction was content-neutral:

{The HRO "does not prohibit" Fenske "from expressing" his ideas; it requires him to express them without contacting Pioneer Farmers by taking photographs of a protected person. Our analysis of the photography restriction in this HRO is consistent with this court's First Amendment analysis of HROs generally. We have reasoned that "[a]n order prohibiting all contact is content neutral because it does not identify or prohibit any particular type of speech but is designed to protect privacy and security." Because we have interpreted the HRO to prohibit photography that involves contact with Pioneer Farmers, i.e., immediate proximity to or interaction or communication with a protected person, the restriction is content-neutral.}

It held that Fenske essentially waived any argument that the restriction fails the narrow tailoring required for content-neutral restrictions:

Fenske … maintains that Pioneer Farmers "made no showing at the evidentiary hearing that [his] photography, as opposed to other alleged conduct, constituted harassment." … When evaluating a content-neutral restriction as applied, appellate courts determine whether the restriction burdens "no more speech than necessary to serve a significant state interest" in light of "the specific circumstances presented by this case." … Because Fenske did not provide a hearing transcript, we cannot evaluate what arguments or evidence related to photography may have been presented at the evidentiary hearing; thus, we cannot examine "the specific circumstances presented by this case" to determine whether the HRO is narrowly tailored.

And it held that Fenske had likewise waived other objections:

In his reply brief, Fenske contends that the district court also violated the First Amendment by "prohibiting [him] from contacting board members, participating in governance, or speaking publicly about" Pioneer Farmers. Generally, issues not raised or argued in appellant's principal brief cannot be raised in a reply brief. Fenske's reply arguments extend beyond those raised in his principal brief; therefore, we decline to consider them.

For more on other, even broader, anti-harassment orders stemming from public criticism, see Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases).

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The Institute for Free Speech, which litigated the case, reports on the settlement agreement:

Take off the wristbands or leave. That was the message Bow school officials gave parents and a grandfather who were silently protesting in support of female-only sports by wearing pink "XX" wristbands at a girls' high school soccer game in 2024…. After more than two years of litigation …, the Bow School District has agreed to a judgment declaring that it violated the plaintiffs' rights by barring them from wearing the wristbands at the game. U.S…. The settlement also provides $275,000 in attorneys' fees and costs.

The judgment declares that the plaintiffs "have a First Amendment right to silently wear pink wristbands bearing the XX symbol on the sidelines, in the spectator's area, or in the parking lot of any Bow District sporting event." It binds the district and its Board of Education, and it remains in effect even if the district amends its policies….

The plaintiffs wore the wristbands, whose "XX" symbols reference female chromosome structure, to protest a policy permitting a biological male to compete on the opposing girls' team. School officials, accompanied by a police officer, confronted them. The referee halted play until one spectator removed his wristband, and school officials later issued trespass orders barring Fellers and Andy Foote from school grounds, preventing them from attending their children's games and other school activities for a time….

After the district court denied a preliminary injunction in April 2025, the plaintiffs appealed. In August 2026, the U.S. Court of Appeals for the First Circuit ruled in the plaintiffs' favor, finding that they "have established a likelihood of success as to their viewpoint discrimination claim." The court concluded that the protest "fell short of harassment and disruption," and that school officials "cannot favor one side of a debate involving parental speech on an issue of prominent public concern." …

Here's my August post excerpting the First Circuit's opinion, written by First Circuit Judge Sandra Lynch, joined by Judge Jeffrey Howard:

On September 17, 2024, [plaintiffs] were instructed by Bow High School officials to remove pink "XX" wristbands they wore in protest while watching their daughters (in [one plaintiff's] case, granddaughter) play in a girls' soccer game against a team with one transgender athlete. Further sanctions followed…. [W]e conclude that appellants have established a likelihood of success as to their viewpoint discrimination claim arising from the sanctions imposed on them for their passive speech in wearing these wristbands….

The district court analyzed the school playing fields and adjacent parking lot, as appellants requested, under the mode of First Amendment law applicable to limited public fora as to impermissible viewpoint discrimination…. [The] appellee school district argues that this case must be analyzed more in the mode of Tinker v. Des Moines Independent Community School District (1969) … [and other cases that] recognize the particular interests inherent in the public elementary and high school settings, and the necessary discretion given to public school administrators in the difficult job of running public schools….

Neither of those two different classic modes of First Amendment analysis, urged on by these opposing parties, is a perfect fit for this public high school speech case, and we note that the Supreme Court has not addressed this precise question. We need not and do not reach the complex question of which (or whether) either of these alternate modes is the appropriate First Amendment type of analytical model for the facts of record here. We conclude that on these facts the differences in analysis would not affect the outcome here….

The school's legitimate interest in regulating certain kinds of speech on the playing field sidelines … is not demonstrated by the evidence in this record. There is no evidence that appellants' protest caused a material disruption [which would be relevant under Tinker]. There was no disruption until school officials chose to intervene, after which the referee suspended the game for approximately fifteen minutes and the school officials chose to impose restrictions on appellants' speech and impose sanctions. The appellants did not stage any pregame demonstrations; did not march, shout, chant, or otherwise disrupt the game; and did not confront Tirrell or any other player. Instead, they waited until halftime before donning the "XX" wristbands in a passive, silent gesture of protest. There is also no evidence of harassment, given there is no evidence in the record that any player actually saw the wristbands.

The lack of any evidence demonstrating harassment also defeats the school district's argument that it had an affirmative duty under Title IX to protect students from the speech in which appellants engaged…. While it is true that appellants chose to protest at the September 17 game because of Tirrell being a player, the record does not contain evidence of appellants engaging in harassment before or during the game. To the contrary, appellants did not shout, chant, make threats, or aggressively gesture at Tirrell to communicate their views against her participation. Nor is there evidence that Tirrell or any other player even saw the wristbands or "subjectively perceived the environment to be hostile or abusive."

Principal Fisk did note the challenges that transgender students face generally. But Fisk did not ever explain how appellants' display of the "XX" symbol constituted sufficiently severe or pervasive conduct to qualify as harassment under Title IX. And to the extent the district court concluded that the silent wearing of "XX" wristbands on the sidelines of a school soccer field, without more, always amounts to harassing speech, we disagree.

The school district responds that it may make "predictive judgment[s]" to proactively prohibit conduct that it believes will eventually lead to an actionable Title IX claim….. We agree with the general proposition. But the argument fails on the facts of this record…. We need not decide in this appeal whether and under what circumstances passive speech, on other facts, consisting of displaying the "XX" symbol on school property during school events could be reasonably thought to be harassing. But appellants' silent display of the "XX" symbol at the September 17 game fell short of harassment and disruption, and we conclude that the district court erred in holding that the school's interest in prevention of harassment justified the prohibition.

While it is a closer issue, we conclude that the school district likely was not justified in sanctioning the appellants for their passive speech based on its concerns derived from the earlier exchanges with the appellants and other parents. None of appellants' reported discussions, including their possible different methods of protest reported to Bow High School officials by other parents, led to any attempt to "heckle and intimidate" Tirrell. And that was evident both before and throughout the game.

It is true that Fellers initially attempted to convince his daughter to get the Bow High School players to wear the wristbands, but his daughter informed him that "she could not get full support from the team and was afraid that it would divide them." Fellers's Facebook post made the night before the game encouraged spectators "to protect the integrity and safety of female athletics" and "come out to support our XX Lady Falcons and show your solidarity with our girls' team." But the record shows only that the appellants and perhaps others of similar views engaged in a passive protest and only started the protest at halftime. While the school district may make predictive judgments about whether disruption may occur and "need not be certain of its forecast," it cannot use those projections to immediately suppress a passive, silent protest, that did not impair any of the legitimate school administration interests recognized by the Supreme Court.

This brings us to the school officials' other stated reasons for sanctioning appellants. Superintendent Kelley stated that the "XX" symbol conveyed an "exclusionary" message about gender. Principal Fisk, who ordered appellants to remove the wristbands, described the symbol both as "hateful" and as "anti-trans." As to these justifications for the sanctions imposed, the record evidence demonstrates the likelihood that the school district imposed sanctions on the appellants' wearing of the wristbands because it disagreed with the protest message conveyed….

Although the leading Supreme Court case on viewpoint discrimination in academic limited public fora, involved colleges and not high schools, and involved a limited public forum, both significant differences, Rosenberger's anguage about viewpoint discrimination is pertinent. "The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."

The characteristics of the school as a place of learning reinforce that administrators cannot favor one side of a debate involving parental speech on an issue of prominent public concern, and which, in those parents' views, concerned the safety of their children. As the Supreme Court stated in a case involving a high school football game, "learning how to tolerate diverse expressive activities has always been 'part of learning how to live in a pluralistic society.'"

Judge Julie Rikelman concurred in the judgment, reasoning that Tinker might not prohibit viewpoint-discriminatory speech restrictions, but that in this case the school district had accepted the viewpoint neutrality requirement:

The school district accepted that the limited public forum framework applied to the facts here and conceded repeatedly, both in its brief and at oral argument, that it could restrict speech at the September 17 soccer game only for viewpoint neutral reasons…. Although it did urge us to conduct our First Amendment analysis with the principles of Tinker in mind, it did so only in arguing that its actions were reasonable and thus satisfied the [reasonableness] prong of the limited public forum test….

With the school district's concession in mind, I agree that the record lacks evidence of actionable harassment or material disruption from the plaintiffs' speech at the September 17 soccer game. The record also demonstrates that school officials likely restricted the XX symbol because they viewed it as "exclusionary" and demeaning to transgender students. That amounts to viewpoint discrimination under relevant precedent.

Del Kolde, Brett Nolan, and Nathan Ristuccia (Institute for Free Speech) and Richard Lehmann (Lehmann Major List, PLLC) represent plaintiffs. were on brief, for appellants.

The post Declaratory Judgment + $275K in Attorney Fees in Settlement of N.H. "XX" Wristbands Case appeared first on Reason Magazine.

On Tuesday, Trump and the Republican suffered a massive electoral defeat, losing control of both houses of Congress. Many have called it a "Blue Tsunami". The defeat was caused by multiple factors. But Trump's unconstitutional actions on tariffs, the War in Iran, and immigration played a major role. Violations of the Constitution don't always result in political setbacks for the perpetrators. But in this case they did "bigly." As Texas GOP Senator Ted Cruz put it, "Tariffs have made everything too expensive, and the Iran war has dragged on too long."

This connection is perhaps most obvious in the case of tariffs. Since returning to power in January 2025, Trump has engaged in a series of massive tariff power grabs, repeatedly attempting to usurp congressional authority in this field, and use it to impose the highest tariff schedule since the Great Depression. He started with the IEEPA tariffs. When the Supreme Court invalidated them, he tried again with Section 122 and Section 301 of the Trade Act of 1974, and the Section 338 tariffs against Canada. In each case, he illegally tried to transform relatively narrow delegations to the executive into a blank check to impose tariffs at will. The net effect of these actions has been to raise prices for consumers,  reduce economic growth, and impose some $700 billion in new taxes on Americans over a 10-year period (unless courts end up striking down the new tariffs, too). The tariffs also failed to produce the promised increase manufacturing employment.

Most relevant for present purposes, affordability and price increases were clearly a huge issue in the election. And most voters have come to realize that tariffs increase prices, and damage the economy. Exit polls reveal that 66% of voters believe Trump's tariffs have hurt the national economy (compared to only 21% who believe they helped), and a similar percentage (64%) believe they hurt the economy in their area (only 14% believe they helped it). Numerous other polls show widespread opposition to the tariffs, as well (e.g. here and here). They became a major issue in the elections, linked to the broader issues of price increases and "affordability."

Polls, pundits, and even Donald Trump and Vice President J.D. Vance all agree the Iran War was a major factor in GOP losses. The military stalemate combined with resulting energy price increases have enraged voters. Exit polls showed that 74% of voters said the war was a "crucial" or "important" factor in their decisions, and the vast majority of them disapproved of Trump's conduct of it.

And, as I have argued from the beginning, that war is unconstitutional because it was never authorized by Congress.  As I warned at the start of the conflict, the failure to build up the public supported needed to secure congressional authorization greatly reduced the odds of success:

This [constitutional] limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.

I think that prediction has (so far at least) been vindicated by events.

The immigration situation is somewhat more complicated than that with tariffs and war. But, here too, various unconstitutional actions have damaged the GOP's political standing and hurt the party in the election. Trump's cruel mass deportation policies have made ICE by far the most the most unpopular federal agency (surpassing even the IRS) and alienated Hispanic voters in Texas and elsewhere;  this was a key factor in the Republicans' defeat in that state. GOP immigration policies  led many Hispanics who backed Trump and the GOP in 2024 to turn against them in 2026.

In part because of indefensible double standards in relevant Supreme Court precedent, courts permit a wide range of harsh and cruel conduct in immigration policy, that would be invalidated in any other context. But many of Trump's policies went beyond even these overly permissive bounds. As a result, the administration has lost many thousands of immigration detention and deportation cases, including many on constitutional grounds, and many before GOP-appointed judges. Trump's immigration crackdown has violated the Constitution in various other ways, as well, as in the case of his use of an absurdly broad definition of "invasion" in order to justify detaining and deporting even legal migrants without due process.

In all three of these cases, voter backlash arose primarily because of the awful - and highly visible - practical consequences, rather than because of the constitutional issues themselves. Most voters care far more about military failure, rising prices, and visible cruelty of these policies than about their legality. Nonetheless, it is still true that unconstitutional conduct played a major role in causing the tsunami that swept away many GOP officeholders.

We should not be overly optimistic about this chain of events.  It would be a mistake to assume that unconstitutional policies always lead to electoral punishment, or even usually do so. In many cases, voters are unaware of illegality or don't give it much weight if they do find out. Previous presidents have often avoided significant political backlash for violating the Constitution. Barack Obama, for example, also waged two unconstitutional wars (those against Libya and ISIS). But because the wars were (at least initially) militarily successful, led to few casualties, and had little visible negative economic impact, he largely avoided political damage. Later, Obama concluded that the Libya war was his worst mistake. But Democrats didn't pay much, if any, political price for it.

Trump's unconstitutional actions on these three issues turned out be politically costly because the negative effects were large and highly visible. Even many generally ignorant and inattentive voters noticed them.

Here, as always, I do not claim that public support for my position somehow proves I was right. As the author of Democracy and Political Ignorance: Why Smaller Government is Smarter, I recognize that majority public opinion is heavily influenced by ignorance and bias, and thus often a poor guide to goo policy. Moreover, while majority opinion agrees with me in condemning Trump's policies here, it would not go as far as I would in sweeping away nearly all tariffs and immigration restrictions.

Despite these caveats, I am glad that the public punished the GOP for these terrible unconstitutional policies. I hope this outcome might deter future presidents from imitating them. At the very least, they might hesitate to pursue them on the same massive scale as Trump did.

The post How Trump's Undermining of the Constitution Helped Cause a "Blue Tsunami" appeared first on Reason Magazine.

From McWilliams v. Meghrian, decided Monday by Georgia Court of Appeals Judges Jeffrey Watkins, Christopher McFadden, and J. Wade Padgett:

This appeal arises from a child custody modification proceeding in which the trial court, [among other things,] … permanently enjoined … Mother … from making any "disparaging" statements about Father "via social media or other means" and modified child support. Mother appeals, and for the reasons below, we vacate the trial court's final order and remand for further proceedings. The parties are the parents of one child, born in 2008….

Mother argues that the final order and accompanying parenting plan included unconstitutional prior restraints on speech. The final order directed Mother to "immediately cease all disparagement of [Father] whether via social media or other means." The final order also adopted and incorporated the parenting plan proposed by Father, which provided that the parties "will not speak badly of each other or the members of the family of the other parent." …

During the final hearing, the trial court stated, "So, Ms. McWilliams, when we're dealing with, you know, parents—and I understand what you said. You're putting your truth out there and saying your truth. Disparagement doesn't care about the truth. It just means that you're putting down another parent." Mother responded, "Yeah." The court concluded:

And so publicly like that is something that you just—you can't do, and so we want to be careful about that. There's a reason that we're careful about that. Things on social media get back to kids. They just do. And I think that we're all—we're all cognizant of that in this day and age, but we have to be careful about what we put out there. And if we can't say anything nice, we just don't need to say anything at all, and that's the best rule to live by in terms of this. So that's—that's kind of what we need to—what we need to work on there….

As to Mother's failure to assert her constitutional challenge before the trial court, it is true that "[b]ecause this Court is a court for the correction of errors, we will not consider matters, even of constitutional magnitude, that were not raised and ruled upon in the trial court." However, the injunction, in its objectionable form, was not entered until the final order. And Mother raised the issue in her application for discretionary review, which was her first opportunity to do so.

Accordingly, on remand, the trial court is instructed to address the constitutional issue in the first instance. As we do not reach the constitutional issue, we need not decide whether, as Father argues, it is moot because the child has reached 18 years of age…. In sum, we vacate the grant of attorney fees, the injunction (both in the final order and in the incorporated parenting plan) restricting speech, and the order of child support….

Malone Williams Allen represents the mother.

The post May Court Order Parent to "Immediately Cease All Disparagement of" Other Parent "via Social Media"? appeared first on Reason Magazine.

From We the Patriots USA, Inc. v. Makin, decided Tuesday by First Circuit Judges Gustavo Gelpí and Seth Aframe:

In this case, plaintiffs … move for an injunction pending appeal of a district court's order denying them a temporary restraining order and a preliminary injunction. If we granted the requested injunction, it would bar the defendants from enforcing, against … We The Patriots members who oppose vaccination on free exercise grounds, Maine's vaccination requirements for children enrolling in elementary and secondary schools….

Plaintiffs primarily argue that they are likely to prevail on appeal because the vaccination requirement imposes the kind of substantial burden on parental and religious exercise rights that triggers strict scrutiny, even assuming that the vaccination requirement is generally applicable. They cite Wisconsin v. Yoder (1972) (holding that Wisconsin's law requiring public or private school enrollment until the age of 16 violated Amish parents' Free Exercise rights), and two recent Supreme Court decisions applying Yoder. See Mahmoud v. Taylor (2025) (in a preliminary injunction appeal, "hold[ing] that the [Montgomery County School] Board's introduction of the 'LGBTQ+-inclusive' storybooks — combined with its decision to withhold notice to parents and to forbid opt outs — substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that Yoder found unacceptable"; "[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses 'a very real threat of undermining' the religious beliefs and practices that the parents wish to instill"); Mirabelli v. Bonta (2026) (per curiam, emergency docket) (vacating Ninth Circuit stay of permanent injunction; California's policies limiting parental notice about their children's in-school, staff-"facilitat[ed]" gender transitioning "likely trigger strict scrutiny under [the free exercise] provision because they substantially interfere with the 'right of parents to guide the religious development of their children' and 'impos[e] the kind of burden on religious exercise that Yoder found unacceptable'").

On the district court record and the papers before us, plaintiffs have not made the necessary heightened showing of a likelihood of success on the merits…. [I]n the posture of seeking an injunction pending appeal, "the bar is harder to clear" because "an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by [a] lower court[]" …. It is not obvious that Yoder, Mahmoud, and Mirabelli govern the situation we face given that Maine's vaccination law does not appear to require a student's submission to school-facilitated instruction.

Relatedly, Yoder itself recognized that prior Supreme Court authority allows States to impose the kind of broad public health initiative that underlies this appeal. See Jacobson v. Massachusetts (1905) (holding that law requiring adults to be vaccinated did not "invad[e] any right secured by the Federal Constitution"); Zucht v. King (1922) (holding that law requiring school children to be vaccinated did not violate the Due Process and Equal Protection Clauses); Prince v. Massachusetts (1944) (applying the balancing analysis ultimately adopted in Yoder and upholding application of child labor laws over parent's free exercise challenge; citing Jacobson, stating in dictum that a parent "cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death"). See Perry v. Marteney (4th Cir. 2026) (cert. petition filed Sep. 4, 2026) (relying on Prince and Jacobson to reverse preliminary injunction in parental free exercise challenge to West Virginia's school vaccination law).

Plaintiffs do not adequately demonstrate that the more recent authority on which they rely clearly shows that the Yoder line of cases applies to a vaccination requirement, especially where the ability of States to impose such a requirement is entrenched in other Supreme Court authority. At this stage of the appeal, plaintiffs have shown only that there is emerging law in this area. But showing the existence of emerging law that may be distinguishable is not enough to warrant the extraordinary relief of an injunction pending appeal….

Judge Joshua Dunlap dissented:

When a law substantially interferes with parents' religious upbringing of their children and "pose[s] 'a very real threat of undermining' the religious beliefs and practices that the parents wish to instill in their children," then the law must survive strict scrutiny. Mahmoud (quoting Yoder). See Mirabelli (noting that strict scrutiny applies when a school burdens parents' religious upbringing of their children by instituting a policy of not informing parents of students' gender transitions); Mahmoud (stating that a parent's religious upbringing of their children is substantially burdened when a state policy effectively "tell[s] parents that they must abstain from public education in order to raise their children in their religious faiths"). The Supreme Court has rejected narrow readings of its free exercise precedents on parental rights, Mirabelli, which the district court here did by limiting strict scrutiny to instances in which a school directly inculcates values contrary to the parents' beliefs…. Although the State may be able to demonstrate that a compelling interest supports its vaccination requirement, see Prince, Appellees have not made any argument that the requirement survives strict scrutiny. Thus, although I do not predict the ultimate outcome of the strict scrutiny analysis, Appellants have demonstrated a substantial likelihood of success at this stage justifying temporary injunctive relief.

I consider next the harms to the parties, as well as the public interest. There is no dispute that, because of the vaccination requirement, [plaintiff] Childs' son has been deprived of the opportunity to attend public school. Absent a showing that the vaccine requirement survives strict scrutiny, this is a substantial and irreparable harm.

Further, although the State has a legitimate interest in safeguarding the health of its residents, that interest would not be substantially undermined by an injunction pending appeal. Because the State already permits certain students a grace period to vaccinate and because the vaccination requirement does not apply to certain students who previously invoked a religious objection, it does not appear that allowing Childs' son and the children of other WTP members (if any) in Maine to attend school for the short period of this appeal would cause significant harm….

Kimberly Leehaug Patwardhan, Kendall Schutzer, Allan Bradley, Melissa A. Hewey, and Drummond Woodsum represent defendants.

The post First Circuit Declines to Mandate Religious Exemptions from Public School Vaccination Requirement, appeared first on Reason Magazine.

One of the most important developments in American religion over the past several decades has been the rise of the "Nones"—people who tell pollsters they have no religious affiliation. According to the Pew Research Center, about 29% of American adults now fall into this category, compared with 16% in 2007. Among younger Americans, the figure is even higher. Many observers see these numbers as evidence of the continuing secularization of American society.

A provocative new book challenges this conventional wisdom. In The Death of Religion? Nones, Others, and the Flourishing of Faith, sociologist Byron Johnson and historian Thomas Kidd argue that surveys greatly exaggerate the decline of religion in the US. I interviewed Kidd about the book in the most recent Legal Spirits podcast.

The book maintains that conventional surveys, including those conducted by Pew, give a misleading picture of American religious life. People who identify as religiously unaffiliated are not necessarily unbelievers. Some Nones retain religious commitments even though they have no formal connection to a denomination or congregation. Some Americans belong to religious communities that surveys fail to capture adequately, particularly among racial and ethnic minorities. Consequently, surveys may systematically underestimate the vitality of religion in the US.

Of course, there is evidence of genuine decline in some traditional religious institutions, like mainline churches. I asked Kidd about this during our conversation. Still, the authors make a useful point: religious affiliation and religious belief are not the same thing, and trends in one do not necessarily establish equivalent trends in the other.

For me, the most interesting part of the book is its historical account. It turns out that Americans have been worrying about religious disaffiliation for more than two centuries. In the eighteenth and nineteenth centuries, Americans sometimes referred to people without a definite religious affiliation as "Nothingarians" and suggested doing missionary work among them. Orestes Brownson, the famous Transcendentalist-turned-Catholic, maintained that Nothingarians made up the majority of antebellum Americans.

The historical parallels raise an interesting question. Americans have long been suspicious of institutions and hierarchies. It would not be surprising if this suspicion extended to religious institutions as well. Could Americans' longstanding preference for personal autonomy and self-reliance help explain the persistence of religious disaffiliation, even among people who retain spiritual beliefs?

Whether or not one accepts all the authors' conclusions, their book offers an interesting corrective to overly simple narratives about the disappearance of religion in America. You can listen my interview with Kidd here.

The post The Death of Religion? appeared first on Reason Magazine.

Ramsi Woodcock, a tenured University of Kentucky law professor, has been under investigation for more than a year for controversial comments regarding Israel and Palestine. The alleged comments varied in both content and forum: an online petition calling for the invasion of Israel, listserv blasts to the University faculty and broader legal academy accusing Israel of genocide, the interjection of far-afield remarks about colonization at an antitrust panel in Hong Kong, shouts of "Free Palestine!" while driving two law students near campus, and more.

None of the remarks came in the classroom and none appears to have disrupted school activities. Yet all related in some manner to his role as a state-employed professor—rendering all the more curious the University's July 2025 decisions to promote him to full professor one week and call him in for questioning (literally) the next. {Curiouser still, Woodcock maintains that the remarks in question dated as far back as February 2024 and were known (at least in part) to the University since March 2024.}

The following week brought a public denunciation from the University's President, the start of a formal investigation into potential harassment under Title VI, reassignment from teaching duties to "professional development," and a (since rescinded) ban from campus. {This first of two "Notice[s] of Investigation" laid out four allegations that Woodcock "may have violated" the University's code of conduct and other policies. The notice declared (without elaboration) that the "investigation … is consistent with the First Amendment" and "addresses requirements under Title VI of the Civil Rights Act." A second notice, based on reports from four students, identified four additional allegations that may have "created a hostile environment on the basis of race, color, or national origin."}

Rather than participate in the investigation, however, Woodcock filed this [federal] lawsuit …. The pleadings characterize his treatment by leaders of the University and its law school as retaliation for protected academic or personal speech, violations of the Due Process and Establishment Clauses, and racial and religious discrimination…. The issue ripe for resolution today is Woodcock's request for temporary emergency relief halting the investigation and reinstating his teaching duties.

This is Woodcock's second or third such request, depending on how one counts. And it follows a journey so circuitous it would make a Baggins blush.

The judge previously assigned to this case held a preliminary-injunction hearing in December 2025. Instead of granting or denying interim equitable relief, however, that judge decided to abstain [under Younger v. Harris] on the ground that the University investigation should precede any federal adjudication. The Sixth Circuit, in the spring and summer of 2026, declined to issue a stay, reversed on appeal, and declined to accelerate the mandate. {See Woodcock v. University of Kentucky (6th Cir. 2026) (Because the "the disciplinary proceedings against Woodcock remain[ed] in a preliminary, investigatory stage," the proceedings were not "ongoing," rendering Younger abstention inapplicable). Concurring with the denial of Woodcock's request to immediately issue the mandate, Judge Gilman wrote that "the panel's opinion" did not "in any way limi[t] the sound discretion of the district court regarding how to proceed on remand," but instead "simply h[eld] that the district court erred in declining to accept jurisdiction based on Younger" without "purport[ing] to dictate what should happen upon remand; i.e., whether the district court should immediately proceed with a ruling on Woodcock's preliminary-injunction motion, or whether it should first consider the University's motion to dismiss, or whether it should stay proceedings to allow for the University to complete its investigation."}

Woodcock, meanwhile, filed a parallel lawsuit and TRO request in state court in September 2026—relief that the Franklin (County) Circuit Judge denied without prejudice. {The Franklin Circuit Court consolidated the new case's request [for] a TRO with the First Amendment suit Woodcock originally filed in federal court seeking to prevent former-Judge Van Tatenhove from assuming his role as dean of the UK Law School. After this Court denied his requests for emergency relief, Woodcock voluntarily dismissed the federal claims and refiled in state court.} The Sixth Circuit then remanded and reassigned this federal case to a judge outside the Eastern District after one of that court's [judges] was appointed dean of the law school. Woodcock had previously filed still another lawsuit—also reassigned here, and also to eventually land in state court—seeking to block the dean's appointment on First Amendment grounds. The University investigation (led by a private law firm) resumed in September. And this Court held a TRO hearing in October. Although the investigator anticipated that this phase of the investigation would finish by November 2, that date has come and gone.

Such unusual litigation can raise unusual—and unusually tricky—legal questions. This is true here, even though the crux of Woodcock's claim is superficially simple: the University leaders (Defendants here) took adverse action (investigation and reassignment) against him because of his constitutionally protected speech (chiefly, at least on his telling, Woodcock's self-titled "Petition for Military Action Against Israel"). But resolving this question, at least in the context of preliminary equitable relief, raises several others that Supreme Court precedent leaves significantly undertheorized.

• When, if ever, does the fact, length, or nature of an investigation amount to retaliation for disfavored speech? {First Amendment caselaw certainly contemplates speech-related investigations. See Waters v. Churchill (1994) (plurality op.) ("Only procedures outside the range" of reasonableness violate First Amendment despite investigation's "risk of erroneously punishing protected speech."). And caselaw appears to strongly suggest they are not per se invalid. Under federal law, "colleges and universities are legally required to maintain a hostile-free learning environment and must strive to create policies which serve that purpose." Schools may escape liability for harassment by "investigat[ing] promptly and thoroughly" when notified of alleged harassment…. [E]ven protected speech may be relevant to determining "whether actionable harassment occurred" …. Woodcock hasn't pointed to any precedent indicating per se invalidity, though neither has the University pointed to any insulating investigations from scrutiny as the means of potential First Amendment retaliation. Some decisions have asked, for example, whether an investigation is outside the typical "formal process for reviewing evidence and weighing disputed claims." And a university may not use an investigation to punish or preemptively chill protected speech.}
• Under what circumstances may a public school restrict the speech of a state-employed teacher on subjects of personal or intellectual concern related to—but distinct from—the professor's public assignments?
• To what extent may a federal district court exercise emergency equitable remedies to superintend these investigative or pedagogical processes? {Public universities are in the "business of educating students," and they have a pedagogical interest in preventing employees from "undercut[ting] the university's power to do its basic job."}
• Does the inquiry differ if the plaintiff has already unsuccessfully sought similar relief on similar grounds in state court?

None of the answers to these questions are obvious based on the record in this Court or the precedential decisions of others. Whether an investigation into speech and related conduct amounts to unconstitutional retaliation depends on whether the First Amendment protected the underlying speech and whether the state's response would deter a person of "ordinary firmness" from speaking similarly. Protection for the speech, in turn, depends on whether Woodcock spoke in either his personal or his "academic" capacity. And even if one of those carve-outs apply, courts may still ask whether the "employee's interest in speaking on a matter of public concern outweigh[s] the employer's interest 'in promoting the efficiency of the public services it performs through its employees.'" {Courts also consider "whether the statement (a) impairs discipline by superiors or harmony among co-workers, (b) has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, (c) impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise," or (d) undermines the mission of the employer."} Additionally, the appropriateness of interim equitable relief turns on similarly difficult—even incommensurable—considerations, including the burdens on Woodcock's ongoing political speech (which appears to have continued in forums outside the classroom), the Commonwealth's interest in controlling the taxpayer-subsidized education offered to its citizens and future officers of the court, and the public's interest in open dialogue, effective investigations, and the avoidance of harassment.

Each of these determinations, courts have illustrated time and again, is fact-dependent. And although a previous judge held an evidentiary hearing nearly a year ago, time and events have not stood still. Woodcock has not, at least not yet, shown that the mere fact of an investigation would chill an ordinary speaker (to say nothing of a tenured professor) in these strange circumstances from engaging in speech on public questions inside or outside the classroom. After all, a university has an interest in "determin[ing] for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."

Nor has Woodcock yet shown that the idiosyncratic lawprof speech at issue—in listservs, foreign conferences, links from the UK website, carpools, and the like—is necessarily protected, heedless of forum or audience. {For instance, whether institutional IT policies that restrict a professor's use of school email resources amounts to a "prior restraint," is hardly clear given the prevalence of content-neutral time/place/manner restrictions. And whether a professor's off-topic panel remarks amount to an unprotected "shout-down" or instead protected academic speech, for example, likewise casts at least some doubt on Woodcock's argument that this amounts to pure academic or political speech.} To be sure, whether he spoke in his professorial capacity is hotly contested by the parties—and cannot be determined with confidence or specificity at this stage.

Whether reassignment from all teaching duties would deter a speaker in a retaliatory manner is a closer question. This is particularly true because the University has seemingly identified no past or future campus disruption, little risk that Woodcock's speech has or will infect classroom instruction, and any reason why responses other than prior restraint would be unavailable if Woodcock stepped outside the bounds of his role in the future. On the other hand, Woodcock hasn't convincingly identified any aspect of this investigation or reassignment that is vindictive, disproportionately burdensome, or otherwise out of the ordinary.

Such showings are neither obvious nor obviously foreclosed on the current record. Indeed, they are not susceptible to prudent resolution by a distant district judge in the middle of a semester, when interim relief measured in two- or four-week increments [the duration of typical TROs -EV] is highly unlikely to benefit Woodcock in a manner that outweighs the concomitant disruption to the University's orderly governance of academic affairs. Since Woodcock bears the burden of justifying temporary emergency relief, but has not carried it, the Court must deny his TRO request. When in doubt, the Sixth Circuit has reminded us, "[t]he administration of the university rests not with the courts, but with the administrators of the institution.

These are important questions worthy of further evidentiary presentation, however. To that end, the Court will schedule a second preliminary-injunction hearing later this month. The balance between state governance and individual speech can tilt too far in either direction, of course, and investigations cannot last forever. In hopes of limiting any federal judicial intervention to its appropriate role, and with "reluctan[ce] to trench on the prerogatives of state and local educational institutions," therefore, the Court sets a preliminary-injunction hearing for Thursday, November 19 ….

UPDATE: I originally stated that the case was from the Western District of Kentucky, and the opinion does indeed have that heading. But, as the text of the opinion explains, the case is being litigated in the Eastern District of Kentucky, though Judge Beaton is a judge of the Western District (who is, for this particular case, sitting by designation in the Eastern District).

The post Lawprof's First Amendment Case Against Univ. of Kentucky, and a Case's "Journey so Circuitous it Would Make a Baggins Blush" appeared first on Reason Magazine.

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The post Open Thread appeared first on Reason Magazine.

In an election where overwhelmingly the preeminent issue was affordability — in other and more candid words, the increasingly obvious decline in the standard of living huge numbers of people are feeling — what has Trump been occupying himself with? Here's a partial list: Building the White House ballroom (from which, in a tone deaf rendition that defies description) he gave his election post-mortem; re-doing the East Potomac Golf Course to make it a "premium" experience; building a Triumphal Arch no one asked for or thought about when they elected him; demanding prosecutions for imaginary vandalism at the Reflecting Pool; invading Greenland; making Canada the 51st state; re-naming Lake Ontario; re-naming the Gulf of Mexico; and perhaps most prominently, making sure his name gets put on the Kennedy Center even though he had nothing to do with its creation. Then there are numerous other items: Trump passports, Trump one-dollar gold coins, and "commemorative" $100 bills, to name three.

Exactly what does this Adventure in Narcissism seem like to the voter — actually, the millions of voters — who feel like they're being stretched thin? You don't need a florid imagination to answer that one. They gave their answer last night.

It's not like Trump has had no successes. He's made three excellent Supreme Court appointments. He has tackled corrosive and unjust racial preferences like no one else had the guts to. He declines to bow to transgender bullying. Objective economic data show that, whatever "feelings" may be, the economy grew at a healthy clip just this last quarter. He used force with Iran when, for nearly 50 years before him, Presidents were content to kick the can down the road as the mullahs got closer and closer to getting the atomic bomb.

These are considerable and important achievements, not less so because Trump often acts like an oaf. But his character flaws throw a wrench into nearly everything he does. It's less that he's an oaf than that he's a child, far too often content to do what's quick and easy while leaving to adults what's messy and hard. The catch is: He's supposed to be the adult. The main thing behind the failures that got Trump his butt-kicking last night is not his classlessness, his carefree attitude [toward] the truth or his gargantuan self-absorption.

It's his immaturity….

The whole thing, as usual, is much worth reading.

The post "The Time, the Opportunity, and the Need to Reclaim the Republican Party from Trump and Trumpism" appeared first on Reason Magazine.

There has been rampant speculation that one of the older conservative justices (namely Justice Sam Alito or Justice Clarence Thomas) might choose to retire before the end of the year so that President Trump could name a replacement while there is still a Republican majority in the Senate. But that is all it is: Speculation.

I have previously predicted that neither Justice Alito nor Justice Thomas would retire during this presidential term (let alone this year). I adhere to this view.

Today, the New York Times and Bloomberg each report that Justice Alito has reaffirmed that he is not planning to retire this year, and that this week's election results have not altered his intentions.

From the Times:

Justice Samuel A. Alito Jr. has told people close to him that he does not intend to retire immediately from the Supreme Court, despite Democrats' commanding win in Senate contests on Tuesday, which means Republicans will hold the chamber for only a short time longer.

As a result, Republicans may have missed the window for President Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency.

Justice Alito shared his plans with friends after the election results were clear this week, according to two people close to the justice who spoke on the condition of anonymity.

From Bloomberg:

The 76-year-old Alito, an anchor of the court's conservative wing, has been the subject of speculation that he might abruptly step down to let President Donald Trump fill the vacancy before Republicans relinquish control of the Senate in January. Such a move could extend Trump's imprint on the court by letting him add a younger, conservative jurist to serve for decades.

The chatter has continued even though Alito said in an interview with Bloomberg News in late September that he had decided to remain no matter how the election turned out. "I intend to stick around through this term," he said then, referring to the nine-month court session that runs through June. "I made that decision many months ago."

Alito indicated that stance hasn't changed despite the Democratic takeover in Tuesday's election, said the person, who asked not to be identified discussing a private conversation with the justice on Wednesday.

While there is no equivalent report on Justice Thomas, there is little reason to think he is going anywhere. Justice Thomas is on the verge of becoming the longest serving justice in the nation's history. Moreover, Justice Thomas has previously said he intends to spend at least 43 years on the Court. Were he to stick to that plan, he would have several more years to go.

While there may not be a Supreme Court nomination to keep the Senate busy during the lame-duck period, there are lower court nominations to consider, including nominees for the U.S. Courts of Appeals for the Fifth, Eighth, and Tenth Circuits. As Michael Fragoso notes in the Wall Street Journal, the lame duck may be Republicans' last opportunity to confirm conservative constitutionalist judges for some time.

Republican senators can make a difference and send a message by putting the Constitution first and confirming the originalist nominees now pending. Petty or parochial squabbles with Mr. Trump may get favorable headlines today but they will be forgotten in a week. A judicial appointment can last a lifetime.

The post Don't Expect a Lame-Duck Supreme Court Vacancy (But There Are Other Nominations to Consider) appeared first on Reason Magazine.

In 2004, [the parties] purchased a residential property in Grass Valley, California, taking title as "husband and wife as joint tenants." In 2020, [husband] Schultz obtained a judgment of divorce from [wife] Stevenson in Dubai, United Arab Emirates (UAE). The Dubai divorce decree addressed marital status and child custody only; it made no findings related to division of property or spousal support.

Years later, Schultz commenced an action … to partition the Grass Valley property [by ordering it sold and the proceeds split -EV]. Stevenson opposed partition, arguing that the Dubai divorce decree is not enforceable in California and therefore the property is community property and not subject to partition [since California law does not allow partition of community property among married parties -EV]. The trial court ultimately … [decided] in favor of Schultz, finding that the parties are divorced and that the property is not community property….

Stevenson … argues that the trial court abused its discretion by extending comity to the Dubai divorce decree because it was based on Islamic (Sharia) laws that violate state public policy and constitutional principles of equal protection and due process…. [S]he argues that the Dubai divorce is not entitled to comity because it is based on a talaq pronouncement of divorce, which violates California's public policy favoring gender equality and constitutional protections against gender-based disparate treatment. [Generally, a talaq divorce can only be initiated by a husband. -EV] Stevenson contends therefore that she and Schultz are still married, and that the Nevada County property is community property, which is not subject to partition.

We conclude that Stevenson has failed to show that the trial court erred in extending comity to the Dubai divorce decree.

Under the doctrine of comity, courts of this nation generally will give effect to the judgment of a foreign nation if the foreign court had proper jurisdiction and enforcement of the judgment will not prejudice the rights of United States citizens or violate domestic public policy…. Even if we agree that parts of Sharia law—such as a talaq pronouncement of divorce—are contrary to domestic public policy favoring gender equality and constitutional protections against gender-based disparate treatment, the mere fact that some laws of the foreign nation are inconsistent with those of the sovereign does not preclude application of comity.

The basic principle of judicial comity is that "'a court should not assume to disturb another court's disposition of a controversy unless there are good reasons for doing so.'" The standard for refusing to enforce a foreign judgment on public policy grounds is high and infrequently met. The standard "'is not simply that the law is contrary to our public policy, but that it is so offensive to our public policy as to be "'prejudicial to recognized standards of morality and to the general interests of the citizens….'"' [E]ven when a foreign law offends public policy, 'it may still be applied in a limited context where the potential harm is minimal….'" (See In re Dalip Singh Bir's Estate (Cal. App. 1948) [in context of intestate succession, foreign law permitting polygamy may be applied under principles of comity].)

Here, we are not persuaded that extending comity to the Dubai divorce decree impermissibly prejudiced Stevenson's rights or flouted state public policy favoring gender equality. It is important to remember that the Dubai judgment only adjudicated two issues—marital status and child custody—and that the trial court extended comity to the judgment as it related to the status of marriage only. {Stevenson contends that issues related to child custody and support have been rendered moot as the children have reached the age of majority.} Since Stevenson plainly did not wish to remain married to Schultz, we cannot say that it was an abuse of discretion for the trial court to recognize the Dubai judgment as dissolving marital status.

The premise underlying Stevenson's claim of prejudice appears to be that recognizing the foreign divorce precludes her from obtaining spousal support and an equitable division of the marital property. We disagree with this premise…. As noted, the Dubai judgment only adjudicated the issues of marital status and child custody. It did not address, and therefore has no effect upon, spousal support or the division of community property in California….

In reaching this conclusion, we note that the trial court has ordered the partition and sale of property but has not yet determined how the proceeds will be disbursed, reserving jurisdiction "to order the manner in which the sale proceeds are to be disbursed, and to order equitable adjustments that the Court considers just and appropriate." It is therefore premature for us to consider whether the distribution of proceeds amounts to an abuse of discretion….

Robin D. Shofner (Scale LLP) represents Schultz.

The post No Problem with Recognizing Islamic <i>Talaq</i> Divorce from Dubai, When Wife Didn't Want to Stay Married appeared first on Reason Magazine.

The post "The 'Birds Aren't Real' Guy Was Just a Little Ahead of the Curve" appeared first on Reason Magazine.

After receiving notice of Jane Roe's impending California lawsuit involving allegations of sexual assault and sexual harassment, John Doe sued Roe in the Southern District of Mississippi, alleging that Roe was attempting to extort and defame him. Roe moved to proceed pseudonymously in the Mississippi lawsuit. The district court denied her permission to do so. Roe appeals that decision, raising several concerns with the district court's analysis. Because we agree with some of Roe's arguments, we vacate and remand for the district court to reconsider whether Roe should be allowed to proceed pseudonymously….

Whenever a party seeks pseudonymity, courts must determine whether "the normal practice of disclosing the parties' identities yields to a policy of protecting privacy in a very private matter." … The district court concluded that Roe was not entitled to pseudonymity … [in part because of] Roe's status as a defendant and waiver…. [But] Roe's defendant status is entitled to no weight in determining the appropriateness of pseudonymity…. A defendant is no less deserving of pseudonymity than a plaintiff simply by virtue of her being haled into court first….

Roe argues that allegations of sexual assault involve matters of the utmost intimacy [and can thus justify pseudonymity]. We agree. There is no doubt that requiring alleged rape and sexual assault victims to proceed "under their real identities would require them to disclose information of the utmost intimacy." It is no surprise, then, that numerous courts have allowed alleged victims of sexual misconduct to proceed under a pseudonym, "including when they are defendants being sued for libel and related torts."

Relatedly, Roe argues that she took affirmative steps to maintain her anonymity, that her identity is not public, and that she has consistently demonstrated a strong desire for confidentiality. She raises these points because the district court found that her privacy interest … was "weakened" because the "cat" was already "out of the bag" with respect to her identity. In so finding, the district court relied on the great detail with which Roe pleaded her California complaint, Doe's public filing of an amended complaint in this case with Roe's real name, Doe's presentation of Roe's real name in open court in this case, and Roe's inadvertent filing of documents with her name in the California case.

We agree with Roe. To start, we are not persuaded that the proverbial cat is out of the bag here. True, publicly available information cannot be obscured by courts. However, that internet sleuths might speculate that Roe is a particular person because her California complaint "lines up with [her] public profile" is not the same as a public broadcasting of Roe's certain identity. As to the fact that Roe's name was a matter of public record for short periods, that was either because of Doe's actions (which Roe objected to), or Roe's inadvertent disclosures which counsel corrected and constituted no waiver (which we address below)….

Last, Roe argues that she did not waive her right to proceed anonymously. Again, we agree. Roe never waived her ability to request pseudonymity because her conduct does not constitute an "intentional relinquishment" of that position. Roe's opposition to Doe's motion to proceed pseudonymously waived nothing because Roe's position was that she should be allowed to proceed pseudonymously while he should not be. And any confusion about Roe's position based on the precise language in her opposition brief was clarified by her own subsequent motions seeking to seal or redact Doe's amended complaint (which used Roe's real name) and to proceed pseudonymously.

Further, Doe's use of Roe's real name in open court did not constitute waiver on Roe's behalf because, at the time, Doe had already publicly named Roe in his amended complaint, Roe had a pending motion seeking to seal or redact that amended complaint naming her, and Roe objected to the use of her name at the hearing (even if not as fast as a prudent attorney likely should have). Finally, we are not convinced that Roe's inadvertent disclosures of her real name in the California case and on this appeal constitute waiver. The disclosures were unintentional, were made in portions of larger filings, and Roe took steps to correct the errors once becoming aware of them, resulting in the sealing and refiling of the documents. These facts do not demonstrate that Roe intentionally relinquished her request to proceed pseudonymously….

In light of the clarifications provided in this opinion, we find that it is appropriate to allow the district court to reconsider whether Roe should be permitted to proceed under a pseudonym in this case. {We acknowledge Doe's argument that allowing Roe to proceed under a pseudonym would be prejudicial to him. We think that argument is best left for the district court to address in the first instance on remand.}

Daniel Altaras (Wigdor) represents Roe.

The post Fifth Circuit on Pseudonymity of Libel Defendant (Who Claims She Was Sexually Assaulted) appeared first on Reason Magazine.

Just today, Third Circuit Judge Stephanos Bibas (also a former law professor), submitted a letter endorsing the proposed rule, and I thought it was much worth passing along:

Dear Members of the Advisory Committee on Civil Rules:

I write to express my strong support for proposed Rule 5.3, a much-needed recapitulation of the procedural standards governing sealing of judicial records.

The public has a presumptive right to access judicial records. This right serves several important societal functions. By exposing the records of private wrongdoing to the public eye, this right deters further wrongdoing. By forcing the government to litigate out in the open, it empowers the public "to keep a watchful eye on the workings of public agencies." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978). And by enabling the public to dig into the bases for judicial decisions, it enables the public to assure itself of the strength of judicial reasoning, the cornerstone of judicial legitimacy. This right thus not only "diminishes possibilities for injustice, incompetence, perjury, and fraud," but also provides "the public with a more complete understanding of the judicial system and a better perception of its fairness." In re Avandia Mktg., Sales Prac. & Prod. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (internal quotation marks omitted).

On paper, this right looks strong. In the U.S. Court of Appeals for the Third Circuit, where I sit, a district court issuing an order to seal "must articulate the compelling, countervailing interests to be protected" and "make specific findings on the record concerning the effects of disclosure." Id. (internal quotation marks omitted). But that standard is a paper tiger—mighty in appearance, but toothless in practice. Time and again, we see cases on appeal where the parties asked to seal large parts of the record below, and the district court, with little discussion, agreed to do so.

Take one recent motion to seal in a Third Circuit case. The district court had certified a multi-state class action against a car company. On appeal, the company asked us to seal ten volumes of appendices, totaling nearly three thousand pages of material. The company told us that sealing was necessary to prevent competitors from copying its design choices, stealing its engineering solutions, and exploiting its sales strategy.

But it took only a cursory glance at the appendices to see how overbroad the company's request was. Hundreds of pages, for example, covered deposition testimony from one of the plaintiff's lay witnesses, a mechanic who had worked on the defendant's cars and had commented on their alleged defects. Hundreds of other pages dealt with one of the plaintiffs' experts, who had opined on the veracity of the defendant's public comments and sales catalogues. But if the mechanic based his testimony on his day-to-day work on the defendant's cars, and the expert had based his testimony on the company's public statements, how would these materials reveal competitive secrets? So I denied the request without prejudice, asking the company to come back with a narrower request if it so chose. But why had the record below been sealed in the first place?

It should come as little surprise that motions to seal almost always go unopposed. The harm of overbroad sealing falls on future victims of repeat tortfeasors, future litigants in related cases, and the public at large. It does not fall on the parties to the case.

Indeed, the parties generally have an active interest in secrecy. The party who moves to seal records fears that the information produced in the case could lead to bad press coverage, competitive harms, or even follow-on litigation. The other party presumably does not share those same concerns about broad disclosure, but it does not share the public's concerns about overbroad sealing, either.

So in the give-and-take game of litigation, where it can be important to reserve your capital for fighting the fights that matter to your client, opposing a motion to seal is a waste of that capital. At the very least, it is a waste of time and money. For lawyers in an active dispute—so used to viewing themselves as only agents of their clients, and not also officers of the court—submitting an opposition to an overbroad motion to seal might not seem worth the cost of the paper to print it.

This leaves it to district-court judges to police these motions and protect the public's presumptive right of access to judicial records. But what my experience as a judge on the court of appeals has taught me, Professor Engstrom et. al's empirical work now confirms: Most district courts rubber-stamp these requests.

This might come as a surprise to some members of the Judicial Conference. After all, the law of every circuit requires district courts to reject requests to seal that are too broad to be justified by their supposed rationale.

So why do district courts frequently fail to apply that law? One problem might be the lack of developed precedent in this area. Because motions to seal are almost never subject to full treatment in district court opinions, let alone appellate review, there are few decisions applying legal standards to specific facts, teasing out what interests suffice to justify sealing, and how broad is too broad. Without clearly factually analogous precedent to rely on, district courts might be more hesitant to deny a motion to seal as overbroad, even though the operative legal standard compels that result.

Another problem is rooted in the lack of adversarial presentation. With no one on the other side, inflated claims of confidentiality go unchallenged.

Other problems might boil down to the mechanics of busy district court dockets. Perhaps, for example, when a district court grants a protective order, that decision generates an inertial force that skews the outcome of the subsequent motion to seal, even though the two decisions are subject to different legal standards. Or perhaps a motion to seal, because it is unopposed, slips under the radar, resembling an administrative matter to be rubber-stamped rather than a legal decision to be carefully scrutinized.

But whatever the reason, the results are clear: For most motions to seal, "the parties agree, the busy district court accommodates, and nobody is left in the courtroom to question whether the decision satisfied the substantive requirements." Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 417 (5th Cir. 2021).

This proposed rule will push parties and courts alike to do better. First, this proposed rule will ensure that the parties know what their obligations are when they submit a motion to seal. I often sit by designation on the District of Delaware, where I regularly receive motions to seal with no accompanying explanation or justification, putting the onus on me to push the parties for more. Under Proposed Rule 5.3(c), parties will be reminded that, as our circuit has regularly held, "[b]road allegations of harm, bereft of specific examples or articulated reasoning, are insufficient." In re Avandia Mktg., 924 F.3d at 673 (internal quotation marks omitted).

Second, this proposed rule will act as a process-forcing mechanism for busy district court judges. District courts lack the benefit of adversarial litigation over motions to seal. And without a party opposing a motion, it is easy to think that no reasoning is needed for an order—if no party loses, the thinking goes, no party needs a basis for the court's decision.

Proposed Rule 5.3(h) makes clear that even without an adversarial party, the district court must act as the steward of the public interest in accessing court records, and must reason through its decision. The decision to seal is for the court to make by applying the correct legal standard, not for the parties to make by means of consent. Proposed Rule 5.3(i) provides a checklist that a district court can use in reaching that decision.

Finally, the proposed rule will remind parties and district courts alike that sealing is not an all-or-nothing question. Proposed Rule 5.3(d)(3) and (g) make clear that, where viable, the default approach should be targeted redactions. The choice is not between disclosing a list of social security numbers and sealing an entire document. A happy medium is often readily available.

This proposed rule does not make new law. Sunlight is the best disinfectant for many societal ills, yet sealing "insulates the participants" in the legal process, "masking impropriety, obscuring incompetence, and concealing corruption." Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983). Judicial reasoning is the basis for judicial legitimacy, yet sealing "withdraws an element of the judicial process from public view," making "the ensuing decision look more like fiat." Matter of Krynicki, 983 F.2d 74, 75 (7th Cir. 1992) (Easterbrook, J.). For these reasons, the courts of appeals have consistently held that the public has a presumptive right to access judicial records, one that should only be abrogated where necessary, and even there only to the extent necessary. This proposed rule simply makes that right harder to neglect.

My then-student Jennifer Welson and I had unsuccessfully proposed a sealing rule to the Rule Committee in 2020, on behalf of the Reporters Committee for Freedom of the Press and Electronic Frontier Foundation; but I much hope that the Engstrom et al. proposal, which is backed by considerably more empirical research than mine had been, will be more successful.

The post Wise Words from Third Circuit Judge Stephanos Bibas as to Access to Court Records appeared first on Reason Magazine.

Let us admit it fairly, as a business people should,
We have had no end of a lesson: it will do us no end of good.

Not on a single issue, or in one direction or twain,
But conclusively, comprehensively, and several times and again ….

It was our fault, and our very great fault—and now we must turn it to use.
We have forty million reasons for failure, but not a single excuse.
So the more we work and the less we talk the better results we shall get—
We have had an Imperial lesson; it may make us an Empire yet!

Change what needs to be changed (the lesson is political, not Imperial), and it's good advice for many situations. The question is whether enough of us will take the advice—and, of course, whether the lesson we learn is the correct one.

The post From a Life-Long Republican Contemplating the Election Results appeared first on Reason Magazine.

The Court assumes the following alleged facts are true. Stabbin' Wagon is a Medford non-profit that provides clean needles, food and aid, and outreach services to unhoused people, particularly those suffering from drug addiction and mental illnesses. Plaintiff Jones was the founder and executive director of Stabbin' Wagon and Plaintiff Strong was an employee. Plaintiffs frequently criticized the City's arrests of unhoused individuals and its failure to provide outreach services to those individuals.

Defendants Brian Sjothun, Randy Sparacino, Justin Ivens, Darrel Graham, Geoff Kirkpatrick, Trevor Arnold, Arturo Vega, and John and Jane Does (collectively, "City Defendants") are current and former Medford city officials and police officers. City Defendants have criticized Plaintiffs and their needle exchange program. Starting around 2021, Defendants Graham, Kirkpatrick, and Sparacino monitored the Plaintiffs' social media activities, protest attendance, and interviews with newspapers. City Defendants removed Plaintiffs from police communications which alerted local outreach services when the police swept an encampment of unhoused individuals. Medford police have also stopped, arrested, and cited Stabbin' Wagon employees on several occasions from 2020 to 2023.

In 2023, Plaintiffs received a $1.5 million grant from the Oregon Health Authority ("OHA") to open a 'respite center' to provide more outreach services to unhoused people. Defendants Sjothun, Ivens, Arnold, and Kirkpatrick attempted to persuade OHA to rescind the grant. Plaintiffs allege that these Defendants "disseminated inflammatory, false, and disparaging information about Plaintiffs to other providers, state officials, and community leaders" in their attempt to reverse the grant.

Defendant Ryan Mallory is "a law-enforcement-adjacent figure in Southern Oregon" who operates social media platforms and companies that investigate, report, and consult on matters related to law enforcement, including the Medford Police Department. Defendant Mallory supported City Defendants' attempt to rescind the grant. He expressed his opposition to Plaintiffs' OHA grant on his Facebook group which has over 100,000 followers. His followers commented in support, and on September 13, 2023, one approached Plaintiffs while they were working and threatened to call the police. On August 4, 2023, Defendant Mallory posted Plaintiffs' personal information, including their home addresses and birthdays, in a graphic with Plaintiffs' likenesses resembling "law enforcement booking records." On September 7, 2023, Defendant Mallory posted a video and a comment that urged the public to oppose the OHA grant, stating in part:

Unqualified people that fill our Parks in greenways with needles, keep people addicted by promoting drug use, and misappropriate grant money by using it for public protest of the police rather than helping people are about to get a massive paycheck …. Ask for an audit of the stabbin wagon organization…. These folks are intending on renting a building to perpetuate drug use …. Melissa Jones and her marketing director [Sam Strong] have openly stated that they get grant money and use it to protest police and others.

Defendant Mallory and his followers continued making posts that "fomented animosity and disinformation regarding Plaintiffs and their services." On May 21, 2024, Defendant Mallory posted an article that discussed Plaintiff Jones's sentencing in municipal court and commented that she "[d]efinitely hasn't learned her lesson based on that. Guess we'll see how probation goes." In March 2025, Defendant Mallory posted a video that showed needles on the ground in downtown Medford and commented that Stabbin' Wagon "shouldn't be in business at all, it worsens the problem."

OHA delayed Plaintiffs' grant but ultimately awarded the funds. "[M]unicipal and zoning barriers and Defendants' subversion campaign" forced Plaintiffs to end their attempt to open the respite center. Plaintiffs Jones and Strong resigned from Stabbin' Wagon due to the Defendants' "harassment, surveillance, doxing, and retaliatory pressure." …

The court dismissed plaintiffs' claims (which related to doxing, criticism, surveillance, and retaliation) on various grounds, including that they were filed too late, but also added this:

Plaintiffs also allege that Defendants retaliated against Plaintiffs advocacy by opposing their grant from OHA and publicly and privately disparaging them. Plaintiffs allege that immediately after OHA awarded Stabbin' Wagon the grant, the City and Medford police, including Defendants Sjothun, Ivens, Arnold, and Kirkpatrick disseminated false and misleading information to state officials, community leaders, and other organizations. Plaintiffs allege the City sought to portray Stabbin' Wagon as extreme and unqualified, lobbied OHA, and coordinated with other nonprofits hostile to Stabbin' Wagon like OnTrack Rogue Valley and the Addictions Recovery Center.

Courts take a cautious approach with retaliation claims involving government speech like those here.

Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights of the officials themselves. The First Amendment is intended to "preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." That marketplace of ideas is undermined if public officials are prevented from responding to speech of citizens with speech of their own.

The Ninth Circuit has accordingly set a high bar for when government speech gives rise to a First Amendment retaliation claim. For example, an act of defamation does not give rise to a retaliation claim if it does not affect the plaintiff's rights, benefits, or status with the state. Government speech that results in reputational harm and ultimately a loss in employment also does not meet the high bar for adverse action….

False accusations may give rise to a retaliation claim in certain contexts, however. In Mendocino Env't Ctr. v. Mendocino County (9th Cir. 1999), police officers falsely accused members of an environmental organization of criminal activity in connection with a criminal investigation. The officers made false accusations to secure arrest and search warrants. The Ninth Circuit held that plaintiffs sufficiently alleged a First Amendment retaliation claim because the inclusion of the accusations in warrant affidavits permitted the inference that the acts would chill a person of ordinary firmness from future first amendment activities.

At the outset, some of Plaintiffs' allegations fail because they seek to hold Defendants accountable for protected speech. For example, Plaintiffs allege that Defendants Ivens and Arnold "expressed outrage over the award and attempted to mobilize public opposition and influence OHA to rescind the grant." They also allege that the City portrayed "Stabbin' Wagon as untrustworthy, unqualified, and politically extreme." These allegations are insufficient to give rise to Plaintiffs' retaliation claim because the government must be allowed to express its own views, even when it is critical of some of its citizens….

Plaintiffs [also] allege that OHA delayed Stabbin' Wagon's grant in response to Defendants' conduct but ultimately awarded it. Plaintiffs Jones and Strong resigned from Stabbin' Wagon and Plaintiffs had to close their peer respite program. Plaintiffs, however, do not allege that Defendants had any control over the grant process and conceded that point at oral argument. This is fatal to Plaintiffs' allegations that Defendants "disseminated inflammatory, false, and disparaging information about Plaintiffs." Cf. Gini v. Las Vegas Metro. Police Dep't (9th Cir. 1994) (holding defamatory statements did not give rise to a First Amendment violation where the officials "could not, and did not, make any decision or take any state action affecting [the plaintiff's] rights, benefits, relationship or status with the state")….

And the court had this to say about plaintiffs' civil rights conspiracy claim:

A plaintiff bringing a Section 1985 claim to vindicate rights secured by the First Amendment must "prove that the state was somehow involved in or affected by the conspiracy" because the First Amendment "restrains only official conduct." Plaintiffs remaining allegations are that unspecified Defendants coordinated "with anti-activist social media groups that published private information and incited public backlash" and disseminated "Plaintiffs' private identifying information, obtained through law enforcement channels, to more than 100,000 followers in order to incite harassment and vigilantism against Plaintiffs."

Plaintiffs make numerous allegations attributing this conduct to Defendant Mallory who is not a City official. Much of Plaintiffs' allegations center on Defendant Mallory's speech via social media and other outlets. Digital communications like these generally fall within the First Amendment's protections. Speech is generally protected unless it falls into a category of unprotected speech [such as the category of "true threats"]. Some of these allegations seek to impose liability for protected speech and therefore fail. E.g., SAC [Second Amended Comalaint] ¶ 121 (alleging Defendant Mallory criticized Plaintiffs' qualifications). Plaintiffs summarily allege categories of potentially unprotected speech by Defendant Mallory. E.g., SAC ¶¶ 129, 131 (alleging Plaintiffs experienced harassment); SAC (alleging defamatory statements); SAC ¶ 203.e (incitement). To the extent Plaintiffs seek to hold Defendant Mallory liable for these acts, Plaintiffs must identify the alleged unprotected speech with more specificity and without relying on broad legal conclusions.

Plaintiffs also allege Defendant Mallory published Plaintiffs' names and home addresses in a "[b]usted" graphic, mimicking booking log services. A party generally cannot maintain a claim for disclosure of publicly available information that is lawfully obtained. Florida Star v. B.J.F. (1989). Plaintiffs do not allege their names and home addresses were not publicly available or unlawfully obtained. Plaintiffs therefore have not alleged an overt act by Defendant Mallory.

With respect to the City Defendants, Plaintiffs allege that the "City Defendants, in particular the members of the Medford Police Department, were aware of Defendant Mallory's pro-law enforcement social media influence." Plaintiffs further allege that Defendants Kirkpatrick and Sparacino appeared on Defendant Mallory's podcast. Plaintiff makes the general allegation that "Defendants … reached a tacit understanding that Defendant Mallory would" amplify the City Defendants' retaliation against Plaintiffs.

Viewed in light of the Court's rulings above, these allegations are insufficient to allege the participation of the City Defendants in the alleged disclosure of Plaintiffs' personal information. A plaintiff must allege a conspiracy with facts that rise above allegations of parallel conduct and sympathetic viewpoints. Plaintiffs' general allegation of tacit agreement is insufficient. The Court has found that Plaintiffs have not adequately alleged the City Defendants retaliated against them, so Defendant Mallory cannot be said to have amplified it at this time. Plaintiffs' Section 1985(3) claim is dismissed because they must allege that "two or more persons conspire[d]" and that a state actor is "at least one of the wrongdoers." …

Stephanie C. Kucera and Zachariah H. Allen (Hart Wagner LLP) and Casey S. Murdock (Frohnmayer Deatherage Law Firm) represent defendants.

The post Court Dismisses Claims Over Alleged "Doxing" and Criticism of Homelessness / Needle Exchange Activists appeared first on Reason Magazine.

Much conduct happens in one state, and the resulting disputes arise in the courts of that state. But other matters are multi-state affairs. Indeed, some are multinational affairs, even though they end up in one country's courts: What happens if a contract was entered into in France, performed in Canada, but plaintiff sues defendant over an alleged breach where they now both live, in Illinois?

There is therefore a body of law called "conflict of laws" (or "choice of laws") that tries to resolve these questions. As it happens, that is itself state law, so different states can have different conflicts rules, with at least three major schools of thought on the matter. (Think that's confusing? Don't get me started on renvoi and dépeçage.)

Here's a scenario that arose in the recent Texas Campbell v. State case:

Appellant was charged, in Harris County, Texas, with murdering his girlfriend. His girlfriend was killed in Texas. And then Appellant went to his mother's home in North Carolina.

While he was in North Carolina, Appellant's mother urged Appellant to speak with a bishop on the telephone. While he was on the phone with the bishop, and allegedly with his mother still in the room, Appellant made a statement admitting that he killed his girlfriend. During trial, the bishop was called to testify as a witness about the contents of Appellant's statement….

Texas Rule of Evidence 505(b) sets forth a clergy-penitent testimonial privilege:

A communicant has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication by the communicant to a clergy member in the clergy member's professional capacity as a spiritual advisor.

{[A communication is] "confidential" if made privately and not intended for further disclosure except to other persons present to further the purpose of the communication.}

But though all states have some clergy-penitent privilege, North Carolina courts have interpreted the N.C. privilege statute as not applying "when the disclosures are made in the presence of a third party," apparently with no exception (as in Texas and some other states) for people "present to further the purpose of the communication."

Gonzalez v. State (2001), a precedent from the Texas Court of Criminal Appeals (Texas's highest court for criminal laws) relied on the Restatement (Second) of Conflict of Laws and its "most significant relationship test" when determining which state's law applies. (The Restatement is an influential work compiled by the American Law Institute, a generally highly respected organization of lawyers, judges, and academics; many courts find it persuasive, as the Texas court did in Gnozalez.)

And the court concluded, citing the comments to the Restatement, "that the state where the communication took place is generally the state with the most significant relationship." Based on that precedent, a Texas appellate court in Campbell held that North Carolina law applied, and that the communication was admissible.

But Texas Court of Criminal Appeals Judge Kevin Yeary took a different view dissenting from denial of review in September:

[T]he Restatement is not the law of this state. When our Texas Rules of Evidence were adopted, this state did not incorporate language from the Restatement demanding that a different rule should apply when a clergy-communicant statement is made outside of our state's borders.

There is also no textual basis for any argument that any conflict between the laws of another state and our state's Rules of Evidence should be considered. Our state's rule on clergy-communications contains no exception for circumstances in which such a communication occurs in a different state. There appears to be no true legal reason to even dwell on such a question, unless perhaps a court just does not like our rule of evidence!

We are not bound by the Restatements of the Laws. We should not consider ourselves to be controlled by them in any regard. We should also not consider ourselves, or our lower courts, to be at liberty to simply adopt any Restatement as the law of this state, even if we think it has expressed a good idea.

Judges are not elected to play the role of policy makers. If anyone in this state thinks we should change a rule or a policy expressed in a rule, then that person should raise the matter as a proposed change to our Texas Rules of Evidence. In that way, the matter could be considered by a rules committee, and the committee could then consider public input before deciding whether to amend our rule.

We have rules of evidence that are written down, with pesky little things called words—that mean things. Presumably, the people who adopted our Texas Rules of Evidence fully considered them, and the words in them, before adopting them. We should consider whether the words in our actual rules are enough….

On its own terms, the rule is quite clear. It does not contemplate the situation in which the statement is made to clergy when the communicant is out of state. When our courts, and when we, pretend that our rule of evidence demands a different set of rules for when a communication occurs in another state, we destroy our own credibility as an equal arbiter of the law. Our courts should simply follow the language of our own Rules. And we should lead the lower courts in that direction by granting review in this case to show them the way….

Under Texas Rule of Evidence Rule 505(a)(3), Appellant's mother's presence might not serve to preclude Appellant from asserting the clergy-communicant privilege. It is therefore conceivable that, if the Texas Rule had been applied, Appellant might have been able to prevent the bishop from testifying.

Judge Yeary also added:

The Restatement (Second) of Conflicts of Law § 139 (1) states: "(1) Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum." It is seems to me that there exist strong arguments that allowing the admission of the communication at issue in this case is against the strong public policy of Texas. By its own terms, Texas's clergy-communicant privilege can even apply when made in the presence of a third person; and Texas rule makers certainly added this section intentionally. Tex. R. Evid. 505(a)(3) ("A communication is 'confidential' if made privately and not intended for further disclosure except to other persons present to further the purpose of the communication.") We should look for the "strong public policy" of the state in the plain text of the rule.

I should note that the subject of conflicts of law is largely about deciding when a foreign law should be used even when a local statute would on its face appear to apply. The theory is that legislatures generally write statutes with an eye towards local matters, and can't be expected to consider all the complications that arise in the rare multi-state cases; better leave that to courts to figure out using judge-made choice-of-law rules, the theory goes. But Judge Yeary argues that courts ought to take a more textualist approach to such questions.

I'm inclined towards the choice-of-law rule applied in Gonzalez, under which courts should apply the law of the place where the communication happened. (Of course, that can still leave a question of what happens if the communication is by Zoom, and the clergy member is in one state and the congregant is in another.) But in any event, I thought this was an interesting question to pass along.

The post Crime in Texas, Trial in Texas, Confession to Clergy in North Carolina: Which Law Applies? appeared first on Reason Magazine.

The post Today in Supreme Court History: November 4, 1992 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

This year, four of the nine seats on the Texas Supreme Court were on the ballot. Unless something unexpected happens, all four will lose: Chief Justice Jimmy Blacklock, Justice James P. Sullivan, Justice Kyle Hawkins, and Justice Brett Busby. These are all brilliant judges. Two of them clerked on the United States Supreme Court. Chief Justice Blacklock has been a strong leader, following in the footsteps of Chief Justice Nathan Hecht. But the qualifications do not matter. Everything was on the party line. The Texas Supreme Court will now have five Republican members and four Democratic members. One might expect a number of 5-4 cases for controversial cases. Then again, the Chief Justice is now the administrator of the state court system, which entails some important responsibilities.

The Texas Court of Criminal Appeals (the court of last resort for criminal cases) had three seats on the ballot. Again, unless something happens, all three will lose. There will still be a six-member conservative majority. I don't see too much changing on that Court.

Recently, the Fifteenth Court of Appeals was created as a statewide constitutional court. Virtually all suits against the government are routed to that court. (Think of something like the D.C. Circuit.) All three members of that court were on the ballot. Unless something happens, all three will lose. The Court will now have 100% Democratic members. I would expect a lot mandamus suits to the Texas Supreme Court.

I haven't had time to go through the returns from the local courts, but it appears that most of the incumbent republican judges will lose office. This will be an even bigger bloodbath than 2018, when the Beto wave wiped out nearly all of the Republican judges in Houston, Austin, Dallas, and other large cities. So much judicial experience for non-controversial judges will go down the tube.

The Governor of Texas is fairly weak, as compared to other states, but he does have the power to appoint new members of the Texas Supreme Court and other courts when vacancies arise. Recently, the Texas legislature created a new Texas Business Court. This court was designed to compete with Delaware. Many of the current Texas business courts are not likely to be reappointed. This election will significantly affect businesses that chose to make Texas their headquarters. Speaking of which…

The Texas Attorney General Race will also likely go to the Democratic candidate. I would suspect that all of the conservative strategic litigation cases brought by Attorney General Paxton will be dismissed. Indeed, it is conceivable that the new Texas Attorney General would not defend the Texas Ten Commandments Law if cert is granted. (The BIO will be filed soon.) The Texas Attorney General will also not bring original jurisdiction actions before the Supreme Court of Texas. Going forward, all of the strategic forums in Texas will be severely underutilized. The only court where the Texas Attorney General might file cases will be in Austin. I should note that one seat on the Western District of Texas remained vacant for two years, and will likely remain vacant. But beyond the strategic litigation, the Texas Attorney General will now be able to investigate all of the corporations that moved to Texas. There are a lot of them.

What about judicial nominees? Despite my best efforts, Judge Southwick will get the last laugh. Todd Butler will almost certainly be confirmed. But the Fifth Circuit will likely be a lot quieter, given the lack of Texas Attorney General cases. I also hope this means that Judge Rudofsky will get a vote, as that Eighth Circuit seat would remain vacant for the foreseeable future. Indeed, the Eighth Circuit may be the only viable forum for a Republican AG to bring cases starting in 2028.

Going forward, Senators Cruz and Talarico will have to agree on blue slips for District Court nominees. Still, I suspect zero nominees will get a vote over the next two years unless there is some deal struck with the Senate Democrats.

What about Justices Alito and Thomas? They did what Justice Breyer could not--resist the pressure. I hope they live long and prosper.

Ultimately, I'm reminded of something I tell my students--we are never more than two years away from a midterm election. Despite threats about fascism and totalitarianism, the people are able to effect change.

The post Choosin' Texas I Can Tell appeared first on Reason Magazine.

From Judge Aileen Cannon (S.D. Fla.) in Paulk v. Larva Labs, LLC, decided in June but just posted on Westlaw:

This case presents a dispute over Defendant's alleged fraudulent interference with Plaintiff's Non-Fungible Tokens ("NFTs"). Plaintiff's Complaint, initially filed in Florida state court on January 20, 2026, alleges that in June 2017, Plaintiff used a publicly available software tool to generate 141 NFTs on the Ethereum blockchain. Each of these NFTs represents ownership of a unique CryptoPunk that was part of the first version of CryptoPunks ("V1"), a pioneering generative art project consisting of 24x24 pixel portraits. To create the NFTs, Plaintiff paid only nominal "gas fees" (i.e., fees paid to third parties who validate transactions on the Ethereum blockchain), and the NFTs "have remained in [a] dormant wallet" controlled to this day by Plaintiff.

Plaintiff alleges that, on June 23, 2017, Defendant "deployed" a second version of CryptoPunks ("V2"), "claiming V1 contained a 'bug.'" The Complaint then asserts that Defendant "suppressed V1 marketplace activity while promoting V2 as the sole authoritative collection, rendering Plaintiff's assets commercially impaired". Based on these allegations, the Complaint asserts causes of action for fraudulent concealment (Count I), unjust enrichment (Count II), declaratory relief (Count III), and injunctive relief (Count IV), seeking unspecified monetary damages and an injunction.

The court discussed various procedural issues, and then added:

As a separate matter, the Court is concerned more generally about the plethora of legal filings seemingly prepared by artificial intelligence and submitted by Plaintiff that make frivolous and unsupported arguments to the Court [see, e.g., ECF Nos. 15, 16, 17, 18, 19, 26, 26-1, 31, 32, 33]. As an example, Plaintiff makes the obviously incorrect submission that the citizenship of Defendant's counsel can be considered in determining complete diversity.

And many of Plaintiff's filings contain disclaimers to the Court, expressly certifying "that every legal authority, statutory provision, rule of procedure, and historical case citation referenced within [the filings] has been independently read, analyzed, verified, and cross-referenced against official federal and state legal repositories." In each of these filings, "Plaintiff guarantees that every cited case stands as valid, binding law within the United States Supreme Court and the Eleventh Circuit Court of Appeals, possesses an active and unchecked standing, and accurately represents the procedural postures asserted." And he expressly warrants that he has not included any "fictitious or unverified citations," and that he has "manually double-checked" each case to ensure that it "support[s] Plaintiff's cause perfectly, ensuring that no unverified or 'hallucinated' data is presented to the Court."

No doubt Plaintiff's artificial intelligence legal counsel told him to say all this. And the AI certainly had the right idea—litigants should not make misrepresentations to the Court. Unfortunately, Plaintiff did not practice what his artificial counsel preached. Instead, he cites to "Snapper v. Redan, 523 U.S. 83 (1998)"—a case which does not exist—for the proposition that "when a company's chief legal representative has been sent formal notification at a publicly advertised professional office location, the entity cannot assert an administrative breakdown within its secondary commercial mail hubs as an equitable basis to vacate an otherwise valid default". Notwithstanding the made-up citation, the case Plaintiff means to cite, Snapper, Inc. v. Redan (11th Cir. 1999), is an Eleventh Circuit case that says nothing of the sort. Instead, Snapper established that federal appellate courts have jurisdiction to review remand orders based on the enforcement of contractual forum selection clauses. It does not mention vacatur, or default, or even mail—and it certainly does not stand for the extremely narrow proposition for which Plaintiff cites it.

In light of all this, Plaintiff has violated his duty of candor to the Court and has committed a Rule 11 violation…. [T]he Court [therefore] imposes filing sanctions as follows:

1. Until Defendant's forthcoming Motion to Dismiss is resolved, Plaintiff shall not file any motion or submit any item on the docket unless Plaintiff first files a motion for leave to file the designated motion/filing and obtains the Court's approval to file the requested material. Except as stated in this Order, any motion or item on the docket that is filed by Plaintiff without this mandatory judicial pre-approval will be stricken without further notice.
2. Notwithstanding the above requirement, Plaintiff may file an opposition to Defendant's forthcoming Motion to Dismiss in accordance with the local rules of this district. See S.D. Fla. L. R. 7.1(c). Due to Plaintiff's prior artificial intelligence offenses, any such opposition shall be handwritten, and shall refrain from containing any inaccurate citations or hallucinated authority. The failure to comply with any aspect of this Order may cause the Court to grant the forthcoming Motion to Dismiss by default.

Plaintiff failed to respond to the motion to dismiss, and in a later opinion the court granted that motion.

The post Court Orders Plaintiff to File Handwritten Opposition, appeared first on Reason Magazine.

I have stayed away from discussing any of the many important electoral contests that will be (hopefully) decided today.  But given that he is at the center of one of the most hotly-contested Senate seats, I can't help being reminded of his conduct during the campaign to overturn the 2020 election results, and what may have been the lowest of many low points in Ken Paxton's career to date.

In December 2020, when he was Attorney General of Texas, Paxton was the attorney of record in a lawsuit against the states of Georgia, Michigan, Pennsylvania, and Wisconsin, seeking to overturn the 2020 election results in those states.  He petitioned the Supreme Court to exercise its original jurisdiction to hear the case, and to do so on an expedited basis. [See my blog posting at the time here; Paxton's papers filed at SCOTUS are posted here].

In his filing, he wrote:

Expert analysis using a commonly accepted statistical test raises serious
questions as to the integrity of this election. The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump's early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000. For former Vice President Biden to win these four States collectively, the odds decrease to less than one in a quadrillion to the fourth power (i.e., 1 in 1,000,000,000,000,000^4).

The same less than one in a quadrillion statistical improbability [applies to] Mr. Biden winning the popular vote in the four Defendant States. . . . Again, the statistical improbability of Mr. Biden winning the popular vote in these four States collectively is 1 in 1,000,000,000,000,000.

Put simply, there is substantial reason to doubt the voting results in the Defendant States.

Indeed there is!  Prima facie proof of fraud in the counting of ballots, I'd say.
But only, of course, it it's correct, or at least close to correct. But it's not correct.  It is, as anyone with a knowledge of elementary statistics would have recognized immediately, simply and laughably wrong. The technical term is, I believe, "utter bullshit." I explain why here.  The probability that Joe Biden would end up with a majority in any of those is not one in a quadrillion - let alone one in a quadrillion to the 4th power (!), which is approximately equal to the probability that the sun will rise in the West tomorrow, and will have developed the capacity for human speech - nor anything close to one in a quadrillion.

Hey, we all make mistakes, right? What is most disgraceful about this episode is not that Paxton screwed up in his brief to the Court; it is that he never acknowledges his error, either publicly or, more importantly perhaps, to the Court. His assertion that the probability that Biden actually carried these States was equal to the probability that you would pick the single blue marble from a collection of 1,000,000,000,000,000 marbles, is a falsehood, and it is one that is at the core of his argument, in a case that was of grave importance to the future of the country. If Paxton didn't catch that falsehood before he filed his papers with the Court, he's merely a lousy lawyer, which I suppose is nothing to get too worked up about, given that there always will be plenty of lousy lawyers out there. But if he doesn't acknowledge that he has misled the Court after those misstatements are revealed - if he doesn't tell the Court that it has to ignore the part of his argument that relied on this incorrect understanding of statistics - then he's in a much more sinister category.

That this is the candidate whom the Texas Republican party chose as its candidate for U.S. Senate speaks volumes about the current state of the Rule of Law in this Administration. I'm sure that Mr. Paxton is looking forward, assuming the results go his way, to forging a close working relationship with Attorney General Todd Blanche, who is similarly scrupulous in his adherence to fundamental Rule of Law principles (as in the Slush Fund fraud-on-the-court perpetrated by Blanche and the DOJ].

The post A Ken Paxton Moment appeared first on Reason Magazine.

After taking a hiatus for awhile here working on other things, I'm returning to more regular posting. I look forward to engaging with my fellow Conspirators and readers. I have been largely working on financial regulatory issues. But many of these issues are increasingly intersecting with legal challenges that readers might find interesting.

Needless to say, I've been reading the blog regularly even though I haven't been posting and I hope I have something valuable to add.

The post I'm Back appeared first on Reason Magazine.

But the court referred the jury to Instruction No. 10, which focused solely on monetary damages.

The backstory, from the opinion this April Judge Rebecca Pennell (E.D. Wash.) in Riera v. Central Wash. Univ., which let the case go forward:

Mr. Riera was employed in a fixed term, non-tenure track faculty at Central Washington University (CWU)…. On the morning of April 1, [2024,] Mr. Riera called the CWU police to report an older, "apparently homeless," woman wandering around Samuelson Hall. He said he wanted to make a report "before things get … out of control." An officer reported to Samuelson Hall and confirmed the identity of the woman as a CWU professor. No further action was taken by campus police or Mr. Riera.

The CWU professor shared her experience with two colleagues. The colleagues immediately filed bias complaints with CWU, alleging the target of Mr. Riera's call—a Black woman—had been the victim of racial profiling.

This led to a great deal of institutional response, including a discussion at a faculty senate meeting. Defendant Erdman, "a lecturer at CWU and member of the faculty senate, emailed unofficial minutes [of the meeting] to non-tenured faculty," and her notes included this:

Welcome to the Deep South, Circa 1935

Without naming names or describing the incident, [CWU President] Wohlpart expressed his outrage at a recent unconscionable incident on campus.

From my own knowledge, I think I can tell you the basics: It was an incident of blatant racial profiling. Campus police were called because a person of color was sitting quietly in the lobby of a CWU building for a brief interval. The person turned out to be a highly distinguished faculty member—but was compelled to produce and show ID before being left in peace.

(I must remark that this is outrageous on multiple levels. All CWU buildings are public; they belong to the State of Washington and its people. Anyone may sit in the lobby of any of our buildings. There was no reason at all to call the police—except, I guess, that this was a person of color.)

Wohlpart called the incident "unacceptable" and said that Central is working to see to it that such a thing doesn't happen again on our campus….

Riera sued Erdman, among others, and the court allowed his defamation claim to go forward in part:

[M]ost of [Erdman's] statements cannot be characterized as false. The only exception is Defendant Erdman's statement that what happened on April 1 "was an incident of blatant racial profiling." A jury could conclude this statement falsely asserts that the person who called police on April 1 engaged in intentional racial profiling. And, given widely-shared public records revealed Mr. Riera as the caller, a jury could also conclude Defendant Erdman's statement was about Mr. Riera.

Defendants argue that regardless of truth or falsity, Defendant Erdman's statement cannot be considered defamatory because it falls under the common interest privilege. "The common interest privilege applies with the declarant and the recipient have a common interest in the subject matter of the communication." The privilege applies to "persons involved in the same organization, partnerships, associations, or enterprises who are communicating on matters of common interest." Examples include officers of a nonprofit association or partners to a partnership. The privilege arises "when parties need to speak freely and openly about subjects of common organizational or pecuniary interest." …

If the privilege exists, it can be lost in two circumstances (1) if the speaker is not acting in the ordinary course of their work or (2) the speaker's statement was made with actual malice; i.e., reckless disregard for the truth. Whether the privilege has been lost under either scenario is a question of fact.

Here, the parties appear to agree that members of CWU's faculty senate are members of the same organization who share a common interest. The dispute lies in whether an exception applies.

The Court concludes there are issues of fact regarding whether Defendant Erdman's statements fell outside the scope of the privilege. Going to the first exception, Defendant Erdman had no official responsibility for taking notes at faculty meetings and she was not required to share her notes with other members of the senate faculty. A jury could therefore conclude that her statements were outside the ordinary course of her work as a member of a senate.

With respect to the second exception, Defendant Erdman was not a witness to the April 1 incident and no investigation had yet taken place. A jury could therefore conclude Defendant Erdman was reckless in asserting that the call to CWU police was an act of blatant racial profiling…. [T]he allegations against Defendant Erdman raise questions of fact that must be resolved by a jury.

Note that the court granted summary judgment as to plaintiff's defamation claim against President Wohlpart; as to plaintiff's defamation claim against CWU, the court stated that "Mr. Riera appears to have abandoned this claim and the summary judgment briefing does not describe how CWU as an institution may be liable for defamation." The one remaining defendant at trial was Erdman.

Erica St. Louis represents Riera.

UPDATE 11/3/26 4:45 pm: I had originally written that the claims against the University were abandoned, but apparently plaintiff's counsel is disputing that, and intends to appeal the court's dismissal of the claims against CWU and Wohlpart. I've revised the post to say that the court stated the claim was abandoned.

The post Accusing University Lecturer Who Called Police of "Blatant Racial Profiling" Leads to $37,500 Defamation Verdict appeared first on Reason Magazine.

The City of Poway … maintains a public Facebook page where it "posts updates about various items that may be of interest to [City] residents and the general public." The Facebook page is open to public comment, and members of the public routinely comment on posts on the page. Plaintiff is a resident of Poway who has criticized aspects of the City's decisions for several years, including by speaking during city council meetings, corresponding with City officials, and posting critical comments on the City's Facebook page. City officials and staff, including those responsible for the Facebook page, appear to recognize Plaintiff as a critic.

Several times during the past year, Plaintiff's comments on the City's Facebook page have been "hidden" or "shadow banned;" that is, his comments are not deleted and are still visible when Plaintiff looks at the posts, but are not visible when other Facebook users look at the posts. The City's Social Media Policy provides that "[t]he City's social media presence serves as a limited public forum and all content shall be monitored and moderated." The Policy indicates that user-generated posts will be deleted if those posts, among other things: "use[ ] abusive, vulgar, offensive, profane, sexual, threatening, deliberately untruthful or defamatory language or content." Additionally, "[p]ostings from a public user account which contain inappropriate or disruptive content, … or believed to be spam, may result in the public user account being blocked from any further activity on the City's social media account … at the discretion of the City Manager's Office."

Plaintiff believes that the City is hiding his comments because it wants to suppress his critical viewpoints…. The City represents that none of its employees have ever hidden or removed any comments made by Plaintiff; instead, Meta's Moderation Assist Program has hidden these comments because it has flagged Plaintiff's Facebook profile as a "non-human 'bot'" account. Meta Moderation Assist "is necessary because the City does not have the resources nor ability to actively monitor each and every comment made in real time in order to manually hide bot comments, particularly considering these comments can be submitted 24 hours a day seven days a week." The City believes that Plaintiff's comments were hidden because Moderation Assist flagged him as a bot: "Moderation Assist will automatically hide a post if (1) the commenter does not have any friends or followers, (2) the comment has a link, or (3) the commenter does not have a profile picture." Plaintiff does not have a profile picture, has only one Facebook friend, and has no posts on his own profile, which "are typically strong indicators that the account is a non-human bot."

The city agreed that viewpoint-based moderation of Jalisi's posts would be unconstitutional, and agreed to "… manually unhiding Plaintiff's prior Facebook posts." But it opposed Plaintiff's request to "remove any restriction that causes Plaintiff's comments on the City Page to be hidden from the public"; it argued that it needed to keep using the Moderation Assist program, and couldn't turn it off only for Jalisi. And the court held in favor of the city as to this:

[T]he Court need decide whether the City's Facebook page is a limited public forum or a designated public forum. Even when considering laws regulating expression in "quintessential public forums," courts "ask first whether the law is content based or content neutral." …

As a threshold matter, based on the limited and preliminary record before it, the Court notes it is likely that Plaintiff's comments were hidden not by a City policy, but by the Meta Moderation Assist Program. But even assuming … that the restrictive effects of the Meta Moderation Assist Program may be attributed to the City, the Court does not find the restrictions unconstitutional.

First, the restriction is facially content neutral. Based on the Carmichael Declaration, profiles are not flagged as bots by "examin[ing] the content of the message that is conveyed." Rather, they are flagged based on the presence of certain predictive factors, such as the absence of a profile picture or the absence of other Facebook friends. Thus, determining whether a comment may be hidden has nothing to do with the content of the comment.

Second, the restriction can be "justified without reference to the content of the regulated speech" and there is no sign that the restriction was "adopted by the government because of disagreement with the message [the speech] conveys." The City uses Meta Moderation Assist because it "does not have the resources nor ability to actively monitor each and every comment made in real time in order to manually hide bot comments." There is nothing in the record to suggest that the City turned to Meta Moderation Assist "motivated by disagreement with any particular expressive" conduct. Indeed, Plaintiff's evidence that identical comments published by other users remained visible actually strengthens the finding that the restriction is content neutral; critical speech is clearly tolerated by the City. Therefore, the Court finds that the restriction is content neutral and applies intermediate scrutiny.

To survive intermediate scrutiny, the restriction must "'further[ ] an important or substantial governmental interest,' that interest must be 'unrelated to the suppression of free expression,' and the 'incidental restriction on alleged First Amendment freedoms [must be] no greater than is essential to the furtherance of that interest.'"

The City asserts that its interest in using Meta Moderation Assist is "prevent[ing] non-human 'bot' spam postings on its Facebook page, which can overwhelm public pages and make it much more difficult for the public to both obtain important information and participate in the conversation." The Court finds that the two-way exchange of information between the citizenry and the City is a substantial governmental interest.

Furthermore, that interest is "unrelated to the suppression of free expression." In fact, the interest runs counter to the suppression of free expression; it seeks to ensure that residents have effective access to the exchange of ideas with their neighbors and their government. The interest is related to the suppression of expression by non-human bots, but bots are neither "human beings with First Amendment rights" nor the "[corporations] … composed of [them … that] possess First Amendment rights themselves."

Finally, although the record shows there are "incidental restriction[s]" on speech, such as the hiding of comments posted by human beings flagged as bots, those "incidental restriction[s]" are "no greater than essential to the furtherance" of the governmental interest here. "A critical feature of this inquiry turns on whether the [government] seriously undertook to address the problems it faces with less intrusive tools readily available to it." Again, on the early record before it, the Court finds that the City has no alternative methods to prevent non-human bot accounts from flooding their Facebook page. This is not a situation where there is an obvious, alternative method of regulation that would achieve the governmental interest and incidentally censor no speech….

Alan B. Fenstermacher and Jayson A. Parsons (Rutan & Tucker) represent the City.

The post City's Using Meta Moderation Assist Feature for Facebook Comments Doesn't Violate First Amendment appeared first on Reason Magazine.

The defendant, A.M., appeals from the extension of a harassment prevention order …..

To review a civil harassment prevention order, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed acts that constituted one of the enumerated forms of harassment." As relevant here, "[h]arassment" is defined as "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, [or] abuse." To qualify, the conduct must be intended to cause and actually cause fear of physical harm or damage to property….

Here, as the District Court judge properly found, there were three or more incidents constituting harassment. On June 27, 2025, the defendant called the Target store that D.M. managed, looking for D.M., and became vulgar with the employees when she was told that D.M. was not there.

On June 28, 2025, the defendant showed up at the Target store and demanded to speak to D.M. The defendant then called Target's customer service line and made multiple threats, including that she would "go Luigi" and that she was "at the point of feeling like Luigi" and that D.M. was "gonna be sorry though."

On June 30, 2025, the defendant called Target again, looking for D.M., and stated, "this is why people go full Luigi." {The judge noted, and we agree, that the defendant was referencing Luigi Mangione, who at the time was accused of murdering Brian Thompson, the Chief Executive Officer of UnitedHealthcare.}

On July 1, 2025, the defendant called again and stated that she would continue calling and coming to the store looking for D.M. The judge properly found that these events constituted three or more incidents of harassment ….

The defendant's repeated calls and trips to the Target store and her references to Luigi Mangione reasonably support an inference that she intended to cause D.M. fear, intimidation, or abuse. Additionally, as the judge properly found, D.M. was "petrified" from these threats, moving to work at a different location to avoid the defendant. Therefore, the judge did not err in extending the harassment prevention order….

The post "Would 'Go Luigi'" Was a Threat, and Thus Subject to Harassment Prevention Order Statute appeared first on Reason Magazine.

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Tomorrow is election day. And - to put it mildly many of the options before voters are far from wonderful.  In all too many races, the candidates with a realistic chance of winning are all bad. This situation, like other recent elections, raises difficult questions about such issues as whether people have a duty to vote, whether it is permissible to vote for a badly flawed candidate if the alternative is even worse, and how to balance competing issues in making voting decisions.

I've written about these kinds of issues in some detail, previously, and this post links and and summarizes some of those writings. This is not a post about which candidate you should vote for in any given race. I've already written a post about why - in most cases - the Democrats are the lesser evil in races for federal offices this year (state and local elections are often a different matter). I've also written about why libertarians (like me) should seek political alliances with "abundance liberals" and why the previous "fusionist" alliance with conservatives probably cannot and should not be revived in the near future.

This post doesn't argue for any particular voting choice, but rather compiles pieces about  how we should make such decisions in general - and whether we should make them at all. Much of the post is adapted from a similar one I put up in 2024. Unless otherwise noted, these pieces were all published right here at the VC blog:

1. "The Logic of Voting for a Lesser Evil"

This post was inspired by the 2016 election, but almost all of it remains relevant today. In it, I explain why it is both permissible and desirable to vote for the lesser evil in an election where all of the viable options are bad. I address a variety of counterarguments, including claims that voting for a lesser evil makes you morally complicit in that candidate's wrongdoing, arguments that it's better to cast a "protest vote" for a candidate that has no chance of winning, arguments based on the very low probability that your vote will be decisive, and more. Here's a brief excerpt:

Imagine an election where the only options are Queen Cersei from Game of Thrones, and Sauron, the Dark Lord from Tolkien's Lord of the Rings. If Cersei wins, she will kill many innocent people, and oppress others. But she will leave much of the population more or less alone (as long as they don't openly oppose her or threaten her family in any way). If Sauron wins, he will kill far more innocent people, and make the survivors his slaves.

You can instead cast a protest vote for a vastly better alternative, such as Gandalf….. But, by assumption, these are purely symbolic options, because they have zero chance of prevailing. If the protest voter would otherwise have backed Cersei, the net effect of his decision to protest is to increase the likelihood of the worst possible outcome: the triumph of Sauron.

Under those circumstances, it seems clear that a person who ensures a Cersei victory has done a good deed. He or she will have saved large numbers of people from slavery or death, even though the Cersei regime would be a deeply unjust one.

The Cersei-Sauron hypothetical was obviously inspired by the contest between Trump and Hillary Clinton, and is an exaggerated version of that tradeoff. But I think it works for many other elections, as well - including many of the choices  voters face this year.

Notice how my logic is different from that of those who say you can only vote for a candidate if he or she meets some minimal threshold of character or good policy. On my approach, it is morally justifiable to vote for almost any candidate - even a cruel despot like Cersei - so long as the only feasible alternatives are even worse.

Canadian columnist John Robson responded to my piece in the National Post, and I, in turn, posted a rejoinder.

2. "Justifying a Moral Duty to Vote is a Lot Harder than You Might Think."

Many people, including some political theorists, believe we have a moral duty to vote. I disagree. Indeed, I think - in many cases - it's better if you don't vote, especially if ignorance and bias make it likely you will make a bad decision. Casting a ballot motivated by ignorance and bias is often worse than not voting at all.

3."Is there a Moral Duty to Vote in an Election Where the Stakes are Unusually High?"

Even if there is no general duty to vote, perhaps we are morally required to do so in situations where the stakes of an election are unusually high. In this post, I explain why I disagree - at least with respect to most voters. There is, however, a limited kernel of truth in this argument. An excerpt:

There is a kernel of truth to the claim that you have a duty to vote if the stakes are high enough. But the resulting moral duty applies far less often than advocates of the argument tend to assume. And the same reasoning actually implies many people have a moral duty not to vote.

Let's start with the kernel of truth. Imagine there's an election for a powerful political office that pits Gandalf (the benevolent wizard in J.R.R. Tolkien's Lord of the Rings) against Sauron, the despotic dark lord from the same story. If Sauron prevails, millions of people will die or be enslaved, while Gandalf would rule justly if he manages to win. And all you have to do to ensure Gandalf's victory is check his name on a ballot. If you do so, Gandalf wins; if not, Sauron does.

In this scenario, it seems like you have a moral duty to vote for Gandalf, at least barring some kind of extraordinary exigent circumstance. In a real election, of course, the odds that your vote will make a difference are far smaller than in this stylized example….

However, a large enough difference between the two candidates could potentially justify a duty to vote for the "right" candidate, even if the odds of casting a decisive ballot are very low….

But notice that the duty in question is not an obligation to participate in the process for its own sake. It's a duty to help good triumph over evil in a situation where you can do so at little or no cost. If you have a moral duty to vote for Gandalf in these types of scenarios, it follows that you also have a moral duty not to vote for Sauron. Indeed, the person who votes for Sauron is more worthy of condemnation than the one who merely abstains. The former is actively helping evil win, while the latter "merely" chooses not to help stop it.

While Gandalf supporters may have a duty to vote, Sauron supporters actually have a duty to abstain from doing so. Ideally, they should stop supporting Sauron entirely. But they at least should not take any actions that increase the likelihood of his victory.

All of the above analysis assumes that the voter knows which candidate is superior and to what degree. But, in reality, we have widespread political ignorance, and most voters often don't even know very basic facts about how government and politics work. Most are also highly biased in their evaluation of the information they do know….

Unless and until a voter becomes well-informed about the issues and at least reasonably objective in his or her evaluation of political information, she has good reason to question her judgment about which candidate is superior, much less by how much. Thus, she cannot conclude she has a duty to vote to help the "right" side win. She may instead have a presumptive duty to abstain from voting until she meets at least some minimal threshold of political knowledge….

Later in this piece, I note some possible exceptions to situations to the presumptive duty to abstain; there are unusual situations where ignorant voting really is better than no voting, and even unusual situations where ignorance leads to better decisions than knowledge (I expand on the latter possibility in greater detail in Chapter 2 of my book Democracy and Political Ignorance). I also address some other caveats and counterarguments.

4. "How to be a Better Voter"

Some steps you can take to be a better voter, building on a helpful article in Scientific American. I think a wide range of people can do these things. You don't have to be an academic or policy expert to undertake the task. But I am skeptical that more than a small fraction of the electorate will ever be willing to put in the time and effort.

5. "Suffer the Little Children to Vote"

In this post, I make a tentative argument for letting children vote, so long as they show they have attained a level of political knowledge as high as that of the average adult voter -which is not that high a standard! I expanded on the idea here. I do note the crucial caveat that it may not be feasible to do this, because it's possible government can't be trusted to come up with an objective knowledge test for the children (though we do in fact impose such a test on immigrants seeking to become US citizens). Letting knowledgeable children vote is one of my least popular ideas (which is saying no little, given how many other unpopular views I hold!). But I remain unrepentant about it. My 11-year-old daughter is one of the relatively few fans of this policy.

My proposal should be differentiated from the idea of letting parents cast votes on behalf of their children, endorsed by Republican VP candidate J.D. Vance, among others.

6. "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," in Hana Samaržija and Quassim Cassam, eds. The Epistemology of Democracy (Routledge, 2023).

Many of the most serious flaws of voting arise from the fact that most voters tend to be ignorant about government public policy, and highly biased in their evaluation of the political information they do know. In this article, I go over a range of possible strategies for mitigating this problem. Here's the abstract:

There is broad, though not universal, agreement that widespread voter ignorance and irrational evaluation of evidence are serious threats to democracy. But there is deep disagreement over strategies for mitigating the danger. "Top-down" approaches, such as epistocracy and lodging more authority in the hands of experts, seek to mitigate ignorance by concentrating more political power in the hands of the more knowledgeable segments of the population. By contrast, "bottom-up" approaches seek to either raise the political competence of the general public or empower ordinary people in ways that give them better incentives to make good decisions than conventional ballot-box voting does. Examples of bottom-up strategies include increasing voter knowledge through education, various "sortition" proposals, and also shifting more decisions to institutions where citizens can "vote with their feet."

This chapter surveys and critiques a range of both top-down and bottom-up strategies. I conclude that top-down strategies have systematic flaws that severely limit their potential. While they should not be categorically rejected, we should be wary of adopting them on a large scale. Bottom-up strategies have significant limitations of their own. But expanding foot voting opportunities holds more promise than any other currently available option. The idea of paying voters to increase their knowledge also deserves serious consideration.

I expand upon the foot-voting approach to mitigating political ignorance in more detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. I also recently summarized and extended my ideas on this score in "Strengthen Democracy by Empowering People to Vote with their Feet," an article for the NYU Democracy Project, reprinted as a book chapter in Democracy's Challenges: I00 Ideas, (Robert Bauer, Samuel Issacharoff, Richard Pildes, and Rosa Po, eds., NYU Press, 2026).

7. "Setting Issue Priorities"

How to decide which issues to prioritize over others. Not solely about voting. But highly relevant to voting decisions.

8. "If You Don't Vote, You Still Have Every Right to Complain."

Feeling down after considering the above? This piece might make you slightly happier; even if you don't vote, you are justified in criticizing the policies of the winners! I would add that the same logic shows that, if you vote for the winner on the grounds that she is a lesser evil, you are still justified in complaining about her policies. Vote for Cersei over Sauron, when necessary. But then condemn the evil she does. Just make sure not to be at the wrong place at the wrong time when she decides to purge her critics.

The post The Logic of Voting for a Lesser Evil - and Other Writings on the Ethics of Voting appeared first on Reason Magazine.

I think we have seen a new record for speed on the emergency docket. Today, shortly before noon, the Solicitor General filed an emergency application in the California election law case. The brief was about 20 pages long. Circuit Justice never even bothered calling for a response. Shortly before 7:00, the petition was referred to the full Court, and was denied.

Rick Hasen calls it a mercy killing. I think shadow execution is more appropriate.

Indeed, this ruling was likely orchestrated by Circuit Justice Kagan before the petition was even filed. The government's case was dead on arrival. And Kagan spared California the fate that befell Missouri, which had to file a pointless brief that no one would read.

The post Full Court Denies DOJ Petition In California Election Case In About 7 Hours, No Reply Needed appeared first on Reason Magazine.

Will Justice Thomas and/or Alito retire if Democrats take the Senate in tomorrow's election, hoping that the lame-duck Senate will confirm a nominee chosen by President Trump? In recent conversations, I've heard increasing speculation and support for this possibility among some judicial conservatives. And I hear corresponding worry among progressives.

Both sides think the election may create a brief, very consequential window for a Republican Senate to replace two aging justices. The GOP Senate would have to confirm their replacements before January 3, 2027. There would be political costs and procedural obstacles, but it could be done. Justice Barrett was confirmed by a Republican Senate within a month of her nomination on the eve of the 2020 election.

The rationale for retirement is straightforward: Don't get trapped in the actuarial straitjacket Justice Ginsburg found herself in when she failed to retire in 2014 (when she was 81). That was her last clear chance of retiring with a Democratic president and Senate.

Thomas is 78. Alito is 76. Neither has disclosed a serious health risk, and both have indicated they have no plans to retire this year.

But if Democrats take the Senate (prediction markets currently give them a 75% chance to do so) and if they play the sort of constitutional hardball over Supreme Court confirmations that Republicans have played in the past ten years, there's very little chance the new Senate would confirm any likely Trump nominee. Democrats needn't reject every possible Trump nominee--just those who would be likely to satisfy the conservative legal movement. So the president might not get another Supreme Court appointment before he leaves in January 2029. Calls for the eldest conservative justices to retire would surely intensify.

It's worse than that for judicial conservatives. If a Democrat wins the White House in 2028, the next opportunity for a Republican president to make an appointment might not come until January 2033. There are some important "ifs" packed in there, but they are well within the range of reasonable possibilities.

In January 2033, Thomas would be 84, Alito 82. Even assuming both remain healthy and active, that's a substantial amount of succession risk for conservatives to accept when they could potentially lock in their seats for another generation this winter.

A rational justice who prioritizes preserving his seat for something close to his judicial philosophy might well retire. But a rational justice might prioritize (or at least see himself as prioritizing) other things: continued service, jurisprudential influence, institutional reputation, and personal legacy. Justices do not see themselves simply as strategic agents of the political coalitions that produced their appointments.

For purposes of predicting what Alito and Thomas might do, the Ginsburg example cuts both ways. It illustrates the risks of refusing to retire when one's political allies control the presidency and Senate. At the same time, it illustrates the limits of assuming justices will subordinate their personal preferences regarding tenure, legacy, and judicial responsibility to the interests of that coalition.

Like Ginsburg, Thomas and Alito would probably resist renewed and intense calls for their immediate retirement. They might figure that:

(1) one of those additional "ifs" won't come to pass—that Republicans will retake the Senate in '28 or retain the White House;

(2) in any event, they'll outlast whatever period of Democratic control ensues (i.e., the mirror of the Ginsburg gamble);

(3) they've all but publicly committed themselves to staying on for now (Justice Alito says he will stay on through this term and Justice Thomas may want to pass Justice Douglas' record tenure, which would happen in May 2028); and/or

(4) a lame-duck retirement immediately after an electoral defeat would be seen as an unseemly concession to the sort of overtly political behavior by judges they've long publicly decried.

Progressives may dismiss this last consideration. Many critics see Thomas and Alito as essentially unscrupulous political actors who wouldn't hesitate to time their retirements in order to preserve another generation of conservative control. But that assumes they understand their own judicial behavior the way their harshest critics understand it. I doubt they do.

They may regard voting in accordance with their understanding of the Constitution—even when the results consistently advance conservative policy objectives—as fundamentally different from announcing their retirements right after voters have elected a Democratic Senate. On this view, they might think the former is acceptable judicial behavior while the latter is not.

On the other hand, they could see strategic retirements, which are hardly unprecedented among justices, as distinguishable from the politicized judging they've denounced. Choosing the circumstances and timing of retirement is compatible with their judicial philosophies. And many conservatives might well applaud their retirement decisions as responsible constitutional stewardship.

But a retirement announced immediately after the election to permit the outgoing Republican majority to confirm a successor, would be unusually conspicuous. Whatever their views about strategic retirement as a general matter, I'm guessing Thomas and Alito would regard the reputation cost to the Court—and to themselves—under these circumstances as too high.

The irony is that Ginsburg's cautionary example supplies the strongest argument for Thomas and Alito to retire, but also a good reason to doubt they actually will. Justices may be political actors in some respects, but they are not necessarily the political instruments their allies wish them to be.

The post Will Alito or Thomas Retire if Democrats Win the Senate? appeared first on Reason Magazine.

International human rights law protects freedom of thought absolutely and freedom of expression subject to limitations. The relevant established doctrine calls the two sides of that line the forum internum and the forum externum. However, the line was drawn when thinking left no trace, and with current technological developments, it no longer holds.

Within the span of six months in 2026, a United States court ordered that 20 million ChatGPT conversations be provided as evidence under ordinary discovery rules, two federal courts reached opposite conclusions on whether a litigant's exchanges with a chatbot were protected at all, and the Supreme Court held that location records kept by a third party remain constitutionally protected. Records of where a person's body had been were protected, while records of how their mind worked were not.

The law currently has no category for the search query, the exploratory prompt, the unfinished draft, or the confession made to a machine. The U.S. answer has been a quarrel about privilege: Courts refuse to grant AI exchanges between users and chatbots protection because the machine is not a professional, like a doctor or a lawyer, and the industry asks for a new privilege because it claims the model behaves like one. Both the courts and the industry assume that protection depends on what the person is using, i.e., what the machine is. This Article argues that it depends on what the person who uses the machine is doing.

It proposes the forum interstitiale, a third zone between the two classical fora, which can protect the thinking process under a standard stronger than ordinary expression law but short of absolute. Every candidate analogy to interactions with AI chatbots in existing law is tested herein, from search queries and confidential dialogue to protected reading, aggregated records, the European law on correspondence and data protection, private diaries and drafts, and neural data. Each fails for the same reason, namely that the protection it offers relates to a relationship, a disclosure, a recording, an addressee, or a data type, and never to the function of the act as thinking.

The interstitial zone this Article proposes only flows upwards. It lifts acts abandoned by the current binary approach into protection and displaces nothing from the absolute core of protected thought. The Article also sets out what acts belong in the liminal zone, five elements of the protection standard, the duties those elements impose on AI providers, and a map of individual AI interactions across the three fora. This classification determines what records of thought can be demanded, kept, filtered, and used against the person who was engaged in the process of thinking.

The post Journal of Free Speech Law: "Protecting the Thinking Process in Human-AI Interaction: The <i>Forum Interstitiale</i> Between Thought and Expression," by Caroline De Cock appeared first on Reason Magazine.