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: Our old friend Brian Morris rejoins the show for exoneration litigation. And Belmont picks.

• Shortly after beginning his second term, President Trump, and later Secretary of Defense Pete Hegseth, announce policy changes barring persons currently or previously afflicted with gender dysphoria from military service. Current and prospective servicemembers challenge the policy change, and the district court issues a preliminary injunction. D.C. Circuit: The injunction is proper for current service members, but improper for prospective applicants. Concurrence: The injunction is proper for both. Dissent: The injunction is proper for neither.
• In 2022, the feds seized the superyacht Amadea in Fiji as part of Task Force KleptoCapture, targeting Russian oligarchs. Second Circuit: Cool.
• Man dies after jumping from a highway overpass. Philadelphia police officer, in violation of department policy, uses his personal cell phone to photograph the dead man lying on the road. Then, in "a poor attempt at 'humor,'" he sends it to several colleagues, one of whom posts it to social media. It is forwarded to the bereaved mother, who sues the officer. Third Circuit (unpublished): Qualified immunity. There is no clearly established right to control dissemination and exploitation of one's close relatives' death scene images. Dissent: Our history and traditions establish that it was so obviously wrong that he was on notice.
• Virginia inmate is accused of indecent exposure; he insists prison officials view video that he says will exonerate him. They decline and convict him. He asks them to preserve the footage. They delete it. Spoliation sanctions? District court: Summary judgment to the prison officials without ruling on that motion. Fourth Circuit: There are three ways a district court can abuse its discretion, and this decision "appears to abuse discretion in all three ways."
• Children in the West Virginia foster care system file class action, alleging a variety of abuses and rights violations. Following extensive document discovery and 45 depositions, the district court—without briefing or even notice to the parties—sua sponte dismisses the case with prejudice for lack of standing. Fourth Circuit: Undismissed. But we deny plaintiffs' request to reassign the case to a different judge (even though this is the district court's second erroneous dismissal of this case).
• Jackson, Miss.'s water system appears to be a disaster, and several residents sue over difficulties it's caused. Fifth Circuit (unpublished): The good news is that you have standing because you're seeking damages for the alleged injuries you suffered. The bad news is that you lose your due process claims on the merits because you prevailed in the city's administrative process for adjusting your water bills and you haven't meaningfully alleged anything more was wrong.
• New Orleans crime lab tech warns supervisors about safety and accuracy concerns with the lab's drug testing. Supervisors, officers show up at the tech's home to conduct a "wellness check" and insist that the tech accompany them to take a drug test (the very one whose accuracy he questioned). He demurs, the supervisors call their boss, who says the tech is "being ordered to come into work to take this test." He's searched, placed in the back of a cop car, and driven to take his blood test, where he resigns instead of being tested. Fourth Amendment violations? Fifth Circuit (2024): Qualified immunity for some, not all. Fifth Circuit (2026): No QI for the supervisors' boss, who ordered officers to bring the tech in without a warrant or exigent circumstances. (Both officers faced internal discipline: one suspended, one fired.)
• The Fifth Circuit gives an (unpublished) update on the matter alternatively known as "The Bleak House of arbitration," or, as one of the case's lawyers said on the Short Circuit 10th anniversary podcast, "A Final Arbitration to Rule Them All."
• Man struggles with, disarms suspect who'd broken into his house after a gunfight with Laredo, Tex. police. The man exits the house with one hand in the air and the suspect's AR-15 (pointed at the ground) in the other. An officer shoots him without warning or command. (He lives.) Fifth Circuit: As lamentable as that is …
• What's the worst story so far about AI-hallucinations in court? Perhaps not wearing the green jacket but this Seventh Circuit story nevertheless commands attention wherein counsel submits a brief "replete with false quotations, erroneous statements of law, and factual representations contradicted by the record." Plus, watching the guilty lawyers throw each other under the bus is entertaining in a Homer Simpson kind of way.
• Potential prison informant alleges detectives put him at risk by being too open about his potential cooperation against a fellow inmate. Seventh Circuit: But there's no clearly established right against such risk if you weren't actually attacked by another inmate. Instead, "the tradeoff between investigation and safety has been left to law enforcement agencies and the political process." Qualified immunity.
• Member of the Coast Guard Auxiliary is admonished to remove controversial posts on LinkedIn, as well as photos of himself in uniform. He demurs, sending a letter to his Commodore stating, "I disagree with your fake Letter of Caution, and am going to file a complaint against you for your racist and bigoted action against me because I am White. I find your behavior reprehensible." Following further noncompliance and incendiary posting, he's kicked out. He sues for First Amendment retaliation. Seventh Circuit: The Coast Guard Auxiliary deserves deference on this.
• Kansas City, Mo. police receive an anonymous tip that a felon has a gun. A squad tails him and his wife, makes a routine traffic stop with guns drawn, finds a gun in his wife's purse, and charges him with felon-in-possession. He claims the gun was his wife's. The "tipper" is never identified but the fact there was a tip is introduced at trial. A jury convicts. Eighth Circuit: There's this thing in the Sixth Amendment about confronting your accuser. Conviction vacated!
• Wanna see another AI-hallucination car crash? Cool, but you'll also want to consider the business model exposed in this Ninth Circuit sanctions opinion where a couple of guys get law grads who haven't passed the bar to write their briefs and then just file them without checking anything.
• Gov't: We took a million dollars from this guy at a traffic stop and we're going to forfeit it unless he provides an extremely detailed written explanation of exactly where it came from and how he earned it. This guy: I don't want to write you, like, a novel. I just want to argue that the traffic stop violated the Fourth Amendment and that you have to give my money back. Ninth Circuit (en banc): And he gets to do that.
• Children and young adults sue the president for executive orders they claim will exacerbate climate change. Ninth Circuit (unpublished): Big no from Article III, from the too-speculative link between the orders and alleged injuries to redressability issues and constitutional structure.
• The nonprofit Tallahassee Bail Fund posts bond for certain criminal pretrial detainees in Leon County, Fla., who, though eligible for bond, can't afford it. But even if detainees show up to trial and are acquitted, the county (per state law) can keep the bond to cover whatever outstanding fines and fees the detainee might otherwise owe. Tallahassee Bail Fund: This is crippling our mission, and it violates detainees' rights under the Eighth Amendment's Excessive Bail Clause. Eleventh Circuit (2-1) (weirdly unpublished): It might be crippling your mission, but the detainees themselves are the right people to vindicate their excessive-bail rights, and there are lots of ways they could do it, including in federal court. (Look forward, presumably, to a Rule 23(b)(2) class action brought on behalf of current and future detainees who would be beneficiaries of the Tallahassee Bail Fund's bond-posting program but for Florida's bond-snatching statute.)
• And in en banc news, the Fifth Circuit, 9-8, will not reconsider its decision that Ex parte Young allows plaintiffs to sue the Texas Secretary of State and the Texas Attorney General to challenge various bits of the state's Election Protection and Integrity Act of 2021. Oldham, J., dissentaling, likewise will not reconsider his view that Ex parte Young is bad and the Fifth Circuit's Ex parte Young precedent is worse.

Lightning victory! During the pandemic, botanist Laura Schaefer transformed her half-acre grass lot into an abundant garden with over 150 different kinds of vegetables, flowers, trees, and other plants, mostly all native to the area. Last week, however, Millstadt, Ill. officials issued her a bogus citation for "high grass or weeds" and gave her seven days to tear out the garden—or the village would do it and charge her for it. But after IJ sent a sternly worded letter and local news started to dig in, the village backed off. Illinois is one of three states that protects gardens specifically; indeed, the state's 2021 law is based on an IJ model bill, and we invite everyone else to have a gander. Click here to learn more.

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

The Texas Legislature enacted Senate Bill 2420 …, the App Store Accountability Act, with bipartisan support to help parents direct and supervise children's downloads of apps and in-app purchases. The Act accomplishes those goals by requiring age verification; parental consent; and age rating and content display. {[The law] requires app stores to provide certain information in obtaining parental consent, referring to ratings and content … that are determined by the developer.}

The district court issued universal preliminary injunctions against SB2420 after applying strict scrutiny. The State of Texas seeks a stay pending appeal…. Texas has made a strong showing that it is likely to succeed on the merits of its claim that the district court committed several reversible errors.

First, the district court likely erred in applying strict scrutiny to significant parts, if not all, of the Act. At most, SB2420 regulates speech that "proposes a commercial transaction," which is subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). {SB2420 may not regulate speech at all, given that it does not target any substantive content but instead regulates commercial conduct with an incidental relationship to speech.}

App store transactions are commercial in nature. After all, users browsing an app store can see a catalog of applications, obtain additional information, and download or purchase an application.

App listings propose commercial transactions, regardless of whether any monetary payment is made. In fact, the "payment" for apps that are purportedly "free" is access to user data and private information. Any minor who downloads an app must accept its terms of service, including agreements about how the minor's data is used. Some terms require minors to waive the right to sue by agreeing to "arbitration pr[o]visions that no child can understand." Detailed user data, including that of minors, is the life-blood of the app store monetization ecosystem….

Second, … Texas has likely shown that the SB2420 survives intermediate scrutiny because the Act "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." Requiring age verification, parental consent, and app-related content ratings likely directly and materially advances Texas's substantial interest in protecting children's data, safety, and privacy in a digital world. Thus, there is likely a "reasonable fit" between SB2420's methods and goals allowing parents to direct and supervise children's downloads of apps and in-app purchases.

That some works protected by the First Amendment may be the object of app downloads or in-app purchases does not categorically exempt them from ordinary regulations governing commercial transactions. Otherwise, any company involved in proposing a commercial transaction could trigger strict scrutiny by incidentally including speech as part of the transaction….

 Third, … SB2420's emergency-services exception {likely does not run afoul of constitutional concerns}. [It] is not likely content-based but, instead, focuses on why the service is needed, not what is being communicated. "[E]mergency calls serve the vital purpose of protecting the safety and welfare of Americans." Section 121.022(h)(1) directly addresses data and privacy concerns by requiring that the emergency services app "limit[ ] data collection to information" that is "collected in compliance with" the Children's Online Privacy Protect Act ("COPPA") and "necessary for the provision of emergency services." Users do not need to create an account to access and use the emergency service app….

We need not conclusively resolve the question of the other exception for an app that "is operated by or in partnership with" a regulated nonprofit organization that "develops, sponsors, or administers [ ] standardized test[s]." That standalone exception, which focuses on the identity of the speaker, does not necessarily reflect a content preference, but rather the reality that students often need to take tests "used for purposes of admission to or class placement in a postsecondary educational institution or a program within a postsecondary educational institution." The speaker-based distinction appears to be content-neutral, not content-based, in discriminating among ideas or viewpoints. And section 121.022(h)(2)(B) mitigates data-privacy concerns, requiring that the non-profit "is subject to" separate laws prohibiting certain uses of student information.

In any event, that limited standalone exception can be severed consistently with SB2420's strong severability provision and severability principles, because the remainder of SB2420 is "capable of functioning independently" and is "fully operative as a law." The district court likely erred in failing faithfully to apply the severability clause. {We do not suggest that there are any problematic provisions of SB2420 and merely follow the law's unambiguous textual severability command.}

{Insofar as there may be any unconstitutional application of SB2420, the district court failed to conduct a proper facial-invalidity analysis under Moody v. NetChoice (2024). Plaintiffs who bring facial challenges must demonstrate that "the ratio of unlawful-to-lawful applications is … lopsided enough to justify the strong medicine of facial invalidation." Put another way, Plaintiffs must show that "the law's unconstitutional applications substantially outweigh its constitutional ones" to prevail in "a facial suit [ ] based on the First Amendment." It is highly unlikely that Plaintiffs have met this "rigorous standard."} …

[And t]hough we express great skepticism that Plaintiffs are entitled to relief, any such relief, if warranted, would be an injunction limited to enforcement against the Students Engaged in Advancing Texas ("SEAT") plaintiffs and any identified members of the Computer & Communications Industry Association ("CCIA"). In any event, a blanket prohibition on SB2420's enforcement is likely inappropriate….

The need to protect children is intensified in the digital world, where app stores have violated existing consumer protection and child privacy laws for years, despite a federal consent decree. {See, e.g.,ROA.26-50001.849 ("The consequences are substantial. As documented in public reports, thousands of children have been sextorted, targeted with illegal drugs, contacted by traffickers, exposed to dangerous viral challenges, or encouraged toward self-harm by chatbots, often inside apps that app stores present as appropriate and safe for young teenagers.").} Absent SB2420, parents' ability to protect their children is imperiled because app stores have encouraged minors to download applications and make in-app purchases without giving parents accurate content information or obtaining their informed consent.

Any purported burden on app stores and developers is minimal because SB2420 requires only "commercially reasonable" verification methods and allows developers to use "widely adopted industry standards" in determining age ratings and those related to corresponding content. The balance of equities and public interest are clearcut in Texas's favor….

Judge Catharina Haynes concurred in granting a stay pending appeal, but otherwise did not join the court's opinion and did not further explain her views.

The post Texas Age Verification / Parental Consent Requirements for App Stores Likely Constitutional, Fifth Circuit Holds appeared first on Reason.com.

Governor Kathy Hochul has a decision to make by June 12.

The New York State legislature recently tackled the vital, pressing issue of whether the terms "mother" and "father" are cruel and oppressive. They concluded that these terms are indeed transphobic and need to be replaced in law by "gestating parent" and "non-gestating parent." "Paternity" is also bigoted and axed. Among the Democrats, the vote was, natch, a few shy of unanimous. And let's not kid ourselves: Hochul's signature is inevitable. On all questions gay and trans, the Dems are now entirely controlled by trans and "queer" extremists.

Now take a look at this week's Senate hearings on sex changes for children. Again, the Dems were unanimous, and their position utterly unchanged: the "safety" and "effectiveness" of transing children is beyond any dispute; no one but Republican bigots oppose it; and any problems can be dealt with retroactively by malpractice suits. (The only slight concession to reality was an end to the lie that transing children was the only way to stop them killing themselves. But no apology for the lie, of course. Or for the human wreckage the lie caused.) The Cass Review never happened. Affirmation-only guidelines never existed.

Gays and lesbians and feminists and liberals who oppose transing children and defend the fact of the sex binary? Senators Sanders, Markey, and Baldwin don't seem to know we even exist. Unsurprising. MS NOW, to take one example, has never had a single guest who's been critical of child sex changes. The Cass Review, when it has even been mentioned, has been instantly dismissed. The gay and lesbian press, such as it is, reports on all this as a trans genocide in full swing….

You can read the whole thing here. I haven't followed all these issues closely, especially as to their political effects; but Sullivan certainly has. If readers can recommend sensible contrary views, I'd be glad to add links to them as well.

The post "The TQ+ Threat To LGB Rights" appeared first on Reason.com.

The Constitution provides only one method to punish federal judges who misbehave: impeachment, which can lead to removal from office. But there is broad consensus that judicial impeachment should be reserved for only the most egregious cases. Instead, Congress crafted a middle ground. A judicial council within the regional circuit can review allegations of misconduct, impose reprimands, and where appropriate, make an impeachment referral to the House of Representatives. Of course, the House retains the power to impeach a judge regardless of what the judicial misconduct process determines.

For the most part, this arrangement works well. But a recent case from the Judicial Council of the Eleventh Circuit, based in Atlanta, represents a complete breakdown of the process. A married judge repeatedly had sex in her chambers with a police officer who worked in her district and then lied in an attempt to cover up her compromising acts. Despite this brazen dishonesty, the judicial council slapped her on the wrist and refused to even publicly name her. Since the judiciary failed to live up to its end of the bargain, Congress needs to open an impeachment inquiry.

Judge Eleanor Ross has served on the federal bench in Atlanta since 2014. As early as 2022, she began an affair with an Atlanta police department officer. Over the course of two years, Judge Ross had sex with the officer at least five times in her judicial chambers. In the abstract, no canon of judicial ethics prohibits adultery. Moreover, a judge could have a relationship with a police officer, so long as she recused from any cases that could create a conflict of interest. But life-tenured judges should avoid any compromising actions that could bring disrepute to the court or place them at risk for blackmail. Yet Judge Ross kept her trysts a secret. The district chief judge learned of her sexual activity only after Judge Ross's law clerk heard "kissing" and "moaning" sounds from chambers and blew the whistle.

The in-chambers sexual conduct, by itself, may perhaps have been enough to warrant impeachment, but what happened next clearly crossed the line. The chief circuit judge, who by law is responsible for investigating allegations of judicial misconduct, asked Judge Ross about the allegations. Judge Ross lied. She insisted that "I have never engaged in sexual intercourse in my office." She denied knowing which police officer visited her chambers, even though he signed his name to enter. She charged that her law clerk was trying to retaliate against her. The judge may have even tried to clean a couch cushion that appeared to have been stained with bodily fluids. In sum, the judge repeatedly made false statements to her colleagues and attempted to obstruct the investigation.

The judicial council that investigated this matter laid out the sordid details and concluded that Judge Ross lacked candor. But in the end, Judge Ross's colleagues gave her only the slightest reprimand. Judge Ross agreed to write vaguely-worded letters of apology to her law clerks. And the judge agreed to skip her turn as chief judge and not to serve on any judiciary-wide committee. Worst of all, the judicial council chose to make her reprimand private, finding that she was extremely apologetic and was unlikely to commit similar conduct in the future. The council report did not even name Judge Ross, although it included so many specific facts that it wasn't hard to figure out who she was.

The council failed in its duty to police judicial misconduct. So did the national appellate committee that reviewed the council's decision. Both bodies did not even acknowledge precedent from a similar case. In 2007, Judge Samuel Kent of the Southern District of Texas sexually assaulted court employees, and lied to obstruct the investigation. The judicial council and the Judicial Conference of the United States, whose presiding officer is the Chief Justice of the United States, recommended that Kent should be impeached. The House agreed and unanimously impeached Kent. Kent resigned his judgeship to avoid a certain conviction in the Senate.

To be sure, Judge Kent's sexual assaults were criminal, while Judge Ross's adultery was lawful. But several members of the House Judiciary Committee stated that lying to the judicial body investigating the misconduct is by itself an impeachable offense. On these grounds, there is strong reason to conclude that Judge Ross has also committed an impeachable offense.

The House of Representatives should pick up the investigation of Judge Ross where the judicial council stopped. And this matter should not be a partisan affair. Much like with the Kent proceedings, members on both sides of the aisle should recognize that a judge who lies about having sex with a police officer within her district, and then attempts to obstruct the investigation, has disqualified herself from judicial service.

This process also should not be rushed. One deliberative approach can be found in the impeachment inquiry of Judge Thomas Porteous in 2008. The House established a twelve-member task force with six Republicans and six Democrats to investigate the matter. This collaboration would allow the process continues regardless of who holds the gavel following the midterm elections.

We continue to believe that judges should be the first line to investigate judicial misconduct. But if judges are unable to fairly sit in judgment of their peers, or worse, are seen as covering up misdeeds, Congress must exercise its constitutional prerogative. Serving as a life-tenured judge is a privilege and not a right. Judges who abuse that privilege must be willing to face public scrutiny, especially where they create conflicts of interest that could require recusals. Judge Ross should resign, but if she fails to, the impeachment process may help her see the light.

--

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston and is an adjunct fellow at the Manhattan Institute. Arthur Hellman is an emeritus professor at the University of Pittsburgh School of Law; he helped to draft the current version of the judicial misconduct statute and testified as an expert witness at the impeachment hearing on Judge Kent. Gabe Roth is executive director of Fix the Court, which advocates for greater openness and accountability in the federal judiciary.

The post Congress Needs To Investigate Judge Who Lied About Having Sex With Police Officer appeared first on Reason.com.

I am quite skeptical of the lawfulness of the Environmental Protection Agency's rescission of the endangerment finding upon which EPA regulation of greenhouse gases under the Clean Air Act is based. It is an aggressive move that stretches administrative law norms and challenges  Supreme Court precedent.

While I am not convinced the endangerment rescission is lawful, I would hardly argue it is unconstitutional or impinges upon religious liberty. The folks at Our Children's Trust--the group behind the various kids climate suits--feels otherwise. They (along with Public Justice) have filed a challenge to the endangerment finding repeal making such claims.

Last month, in Venner v. EPA, OCT and Public Justice filed a motion to stay the repeal of the endangerment finding alleging the EPA's action violates the youth plaintiffs' "fundamental free exercise rights under the Religious Freedom Restoration Act" and their "rights to life and liberties under the Fifth Amendment."

Longtime readers know that I do not think much of the federal constitutional arguments advanced in the various kids climate cases. Even without recent decisions such as Dobbs I find the claims that the federal government's failure to control greenhouse gases is a constitutional violation to be outlandish. The idea that federal courts should superintend federal energy policy is hard to fathom--and would be quite hard to contain. Thus it should be no surprise that federal courts (with one exception) have consistently concluded that they lack jurisdiction over these efforts to constitutionalize climate policy--most recently on Wednesday in Lighthiser v. Trump.

The latest filing adds a new wrinkle in that it seeks to add religious liberty claims into the mix. Specifically, the claim is that a failure to mitigate climate change will burden the exercise of the plaintiffs' religious faith because rising temperatures will make it more difficult to practice their faiths. [I have posted excerpts from the brief below the jump.]

I find this argument to be quite creative, but I am also quite confident that it will go nowhere. (The petition's claim that the EPA completely failed to respond to comments raising these concerns, on the other hand, does raise a serious administrative law issue, but I have not looked to see if the claim is correct.])

As for the endangerment finding itself, I will have a brief essay in the summer issue of Regulation expanding on some of my concerns about the lawfulness of the EPA's move. Rest assured, neither the Fifth Amendment nor RFRA is not among them.

From the petitioners motion to stay the endangerment repeal in Venner v. EPA:

The Repeal Rule substantially burdens Petitioners Elena, J.K., M.D., and E.S.'s sincerely held religious beliefs. "Government shall not substantially burden a person's exercise of religion" unless it can demonstrate the burden furthers "a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1. RFRA offers "broad protection for religious liberty" beyond that afforded by the First Amendment. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 (2014); Holt v. Hobbs, 574 U.S. 352, 356 (2015). Thus, Petitioners' showing of substantial burden under the First Amendment also satisfies RFRA. See id. . . .

The Repeal Rule pressures E.S., J.K., and M.D. to modify their behavior in a way that seriously violates their sincerely held religious beliefs by forcing a choice between adherence to their religious tenets, and protecting their health and safety. Petitioners E.S. and J.K. are observant Jews whose religion requires them to walk to synagogue on the Sabbath. Declarations of L.K. ¶10 (Ex. 20); J.K. ¶¶5-6 (Ex. 21); E.S. ¶¶16-18 (Ex. 19). M.D. is an observant Muslim whose religion requires her to fast during Ramadan. M.D. ¶¶4-7 (Ex. 23); S.A. ¶¶12-13 (Ex. 22). Each Sabbath that is made too hot for E.S. and J.K. to walk safely to synagogue, and each day of Ramadan that is made too hot for M.D. to safely fast and wear hijab, is a day they are prevented from observing important requirements of their religions. E.S. ¶¶12, 22-24; L.K. ¶19; J.K. ¶¶7-9; M.D. ¶¶4-7; S.A. ¶14; Pinsky ¶¶41, 44-46, 58-59; see also L.K. ¶¶25-34 (Sukkot practice harmed); J.K. ¶¶12-14 (same). The Repeal Rule forces E.S., J.K., and M.D. to choose between religious practice and physical safety more frequently than they would otherwise because the Repeal Rule will cause an additional 8.81 gigatons of CO2 pollution to be emitted. Wilson ¶20. This staggering quantity is 1.85 times the United States' total CO2 emissions in 2024. Running ¶11. This quantity worsens local heat surrounding E.S.'s, J.K.'s, and M.D.'s homes, increasing the number of days that they are prevented from exercising their religious beliefs. Running ¶¶15-34; Wilson ¶¶6-13; Jacobson ¶9; E.S. ¶¶24, 22 ("If I'm not in a minyan, there are some prayers I can't say."); J.K. ¶11; M.D. ¶7. The burden is more substantial here than in Hobby Lobby because the pressure for youth to disobey their religion's requirements comes not from a fine that can be paid, but from physical hazards to bodily health and safety, other inalienable rights. E.S. ¶12; Pinsky ¶¶41-45.

The Supreme Court's decision4 in Mahmoud v. Taylor confirms that the Repeal Rule substantially burdens E.S., J.K., and M.D.'s religious exercise because it poses "a very real threat of undermining the religious beliefs and practices that the parents wish to instill in their children" and thus is an "objective danger to the free exercise of religion." 606 U.S. 522, 543, 565 (2025) (holding requiring LGBTQ+inclusive storybooks in school curriculum substantially burdens parents wishing to instill contrary religious beliefs in children) (citation modified). The burden imposed here is more severe than in Mahmoud because the Repeal Rule hinders E.S.'s, J.K.'s, and M.D.'s religious development by preventing their ability to safely engage in core religious practices with their family in community. E.S. is "a young person who is actively trying to develop [his] religious practice[,]" and "losing a Shabbos [Sabbath] service" makes him "less capable of internalizing Jewish Law and integrating it into [his] life." E.S. ¶23. In J.K.'s family, "[e]ach additional hot Saturday diminishes the habit of attending synagogue regularly, thereby diminishing our closeness to God, our sense of community, and our ability to inspire our children to lead Jewish lives." L.K. ¶21. This "profoundly distress[es]" J.K.'s mother because it "could impact both [J.K.'s] ability to enjoy the service as well as his ability to transmit this essential knowledge to his future children." Id. ¶22. M.D.'s mother confirms that extreme heat and climate events have disrupted their religious rituals, and she worries about her daughter's safety wearing hijab in dangerous heat. S.A. ¶¶9-16. As a parent, she must weigh her children's immediate health against her obligation to pass down religious traditions and practices "at a crucial time in my children's religious development as they are entering adulthood." S.A. ¶¶8-17. The increased localized heat from the GHG emissions from the Repeal Rule will thus "substantially interfer[e] with [Petitioners'] religious development" during their "crucial adolescent stage of development" by limiting meaningful opportunities to learn, practice, and internalize their parents' religious values. Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).

The Repeal Rule also imposes a substantial burden on Petitioner Elena, a Catholic youth, by forcing her to choose between two sincerely held beliefs: the obligation to procreate, and the obligation to protect the lives of children. Elena ¶¶9 14. Elena cannot do both because the worsening, rather than improving, air pollution and climate conditions created by the Repeal Rule limit the conditions which Elena sincerely believes are necessary for nurturing and protecting children. Elena ¶¶1314; Pinsky ¶¶10-16, 28, 37, 60-62; Wilson ¶¶4-34; Running ¶¶16, 25-50. "It violates my beliefs to bring someone into this world whose life would be burdened with hazardous air quality and increasing extreme and dangerous heat," because such conditions undermine "life, in utero, for newborns, for growing children, and for mothers[.]" Elena ¶¶13-14; Pinsky ¶¶61-62 ("More babies will be born early or at low weight . . . [a] small number of these babies will also die."); Wilson ¶¶4-34; Running ¶¶16, 25-50. The Repeal Rule thus substantially burdens Elena's exercise of her Catholic faith by forcing her to "engage in conduct that seriously violates" her beliefs by making it impossible for her personally to safely practice her faith's call to procreate and protect life. See Hobby Lobby, 573 U.S. at 720.

The post Youth Climate Plaintiffs Challenge Endangerment Repeal on Religious Liberty Grounds appeared first on Reason.com.

Mosler brings this action against Wagner for defamation per se and unauthorized publication of name or likeness. The facts at summary judgment are as follows:

Prior to the instant case, Wagner filed a twenty-count complaint against Mosler in the Circuit Court for the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida (the "State Court Proceeding"). After the jury returned a verdict for Wagner, the Honorable Luis Delgado set aside the jury's verdict and entered final judgment in Mosler's favor.

During that time, around September 2024, Wagner registered the website domains, titled "JudgeX.org," "warrenmosler.co.," and "ModernMonetaryTheory-Scam.org," all of which form the basis of the current action. Through these publicly available websites, Wagner published various statements claiming that Mosler bribed Judge Delgado when he overturned the jury's verdict. The websites also represent Mosler's name and likeness without Mosler's consent. In addition to the websites, Wagner continued to disparage Mosler through a YouTube channel he created, called "JudgeXO," once again accusing Mosler of bribing Judge Delgado in the State Court Proceeding.

Wagner's basis for this allegation? A statistical analysis (the "Statistical Analysis") based on mathematical probabilities. This analysis concluded that it was 99.999999999% probable that Judge Delgado accepted a bribe from Mosler. It further informed that it would have taken "an honest judge" nearly thirty-seven billion years to make such a remarkable ruling overturning the jury's verdict in the State Court Proceeding.

The Statistical Analysis, however, admits of the possibility that Judge Delgado was not bribed. Wagner, too, admits that possibility. Wagner does not know what Judge Delgado received as part of this alleged bribe nor who made this bribe. In fact, Wagner nor his counsel in the State Court Proceeding ever argue that bribery was the cause of Judge Delgado setting aside the jury verdict. At Wagner's counsel's deposition, counsel admitted that there was no evidence to support that Judge Delgado was bribed.

The court granted plaintiff summary judgment as to defamation:

To defeat summary judgment here, Wagner would need to show a dispute of fact that the bribery allegations were, in fact, true. He has not done so. It is undisputed that Plaintiff did not bribe Judge Delgado. Defendant does not know how the alleged bribery occurred and what Judge Delgado purportedly received as part of the bribe. All he offers is a speculative statistical analysis based on mere probability. (The Statistical Analysis also admits the possibility that Judge Delgado was not bribed. That clearly won't carry the day. "Inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion."). Therefore, there is no dispute of material fact that Defendant's defamatory statements were false….

Mosler is [also] entitled to summary judgment on the fault prong of his defamation per se claim…. It is not clear from this record whether Mosler is considered a public figure such that he must meet the actual malice standard. But assuming he is, there is no dispute that Wagner acted with reckless disregard for the truth, amounting to actual malice. Again, Wagner puts forth no information concerning the bribery apart from the Statistical Analysis; he does not know who bribed Judge Delgado nor what Judge Delgado received in exchange. He also admits the possibility that Judge Delgado was not bribed. This evidence is sufficiently undisputed for the Court to find that Wagner acted with "a high degree of awareness of probably falsity" when he made the bribery allegations concerning Plaintiff….

The court likewise granted summary judgment as to unauthorized publication of name or likeness:

To demonstrate a prima facie case for an unauthorized publication of name or likeness pursuant to Section 540.08(2), Florida Statutes, a party must show that "the defendant (1) used [his] name or likeness to directly promote a product or service (2) without [his] consent." It is also required that the plaintiff's name or likeness be used "to directly promote a commercial product or service, separate and apart from the publication." …

Wagner used Mosler's name and likeness to directly promote his various websites, including the one with the domain JudgeX.org. These websites are replete with Mosler's name as well as pictures and descriptions of him cast in a negative light. This was all seemingly done to promote JudgeX—including the use of the Statistical Analysis which Wagner claims to have invented—for others to track bribes made in the judiciary. ("JudgeX.org will be a [] tool to allow anyone to perform a statistical analysis on a Judge to discern when he/she has taken a bribe.")

The court therefore permanently enjoined Wagner "from using Plaintiff Warren B. Mosler's name and likeness on any website domain, including those referenced in the Amended Complaint"; there will still be a trial on damages.

Steven Douglas Weber (Weber Law, P.A.) represents Mosler.

The post A Rare Summary Judgment in Favor of Plaintiff in Libel Case appeared first on Reason.com.

From Judge Gretchen Lund (N.D. Ind.) Monday in Chen v. Univ. of Notre Dame; the plaintiffs' Complaint focuses on a Notre Dame Law School Religious Liberty Clinic amicus brief in an Argentina court that included allegedly false "website content and related activities accusing China of genocide and crimes against the human rights of Uyghurs in Xinjiang."

Plaintiffs' Complaint contains very few allegations involving Plaintiffs themselves; largely, the Complaint references alleged harms to "mainland China" and Chinese people generally. There are only six paragraphs in which Plaintiffs identify harm they have suffered. Each are discussed below.

Paragraph 71 alleges that "defendants deliberately fabricated or spread false information and spread lies that slander and demonise China and the Chinese people, The plaintiff is also deeply harmed by this." This appears to be more of a "wrong suffered by the public at large," rather than an actual harm to Plaintiff. This is especially true where Plaintiffs have not identified how they have been demonized, or how the slander has personally caused harm to them. This is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 92 alleges that the defendant "made false statements that were believed by some Chinese children in the USA, causing them serious emotional distress and undermining their connection to their Chinese heritage. The plaintiffs encountered this problem."

Here again, Plaintiffs' pleading appears to implicate the Chinese public at large, and does not identify how they specifically were impacted. Plaintiffs do not identify the concrete harm they suffered, as they are not children nor do they appear to believe the alleged false statements made by Defendant, so this is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 96 alleges that Plaintiffs' reputations were directly harmed by "defendant's claim that alleged crimes of human rights violations, crimes against humanity, genocide, and forced labor against Uyghur and other ethnic minorities…" were being committed in Xinjiang. The Court fails to see how Plaintiffs' reputations were in-fact harmed, nor have Plaintiffs provided any additional allegations or evidence in support of this assertion. This is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 99 alleges that because of Defendant's amicus brief filed in the Court of Argentina, "plaintiffs becomes[sic] a victim of these false accusations, Social reputation is damaged, feeling angry and painful, Teaching children about racial identity becomes a problem. In the interest of truth and justice, our lawsuit is primarily for ourselves and also represents all Chinese Americans and mainland Chinese compatriots."

First, much like the other allegations in their Complaint, this appears focused on the alleged harms suffered by Chinese people generally, not Plaintiffs. Second, Plaintiffs provide no evidence or further allegations supporting their assertion that they themselves have suffered false accusations and that their social reputations have been harmed. The same is true of paragraph 107, alleging that Plaintiffs' reputations have been damaged. For these reasons, these also are not injuries sufficient to satisfy the requirements of standing under Article III.

Brian E Casey (Barnes & Thornburg LLP) represents the University.

The post Plaintiffs Lack Standing to Sue over Notre Dame Law Clinic's Filing Amicus Brief Condemning China's Actions Towards Uyghurs appeared first on Reason.com.

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Counting all American courts, posts on the blog have been cited by over 80 court opinions, including once before by Justice Thomas.

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Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that's already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O'Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors' trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.

We also plan to officially recognize zero to three of the top articles among those we review. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you're interested, please submit your draft at http://tinyurl.com/aspiring-free-speech-scholars (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document or document filename, and please do not include an author's note thanking your advisors and others. Please make your filename be the title of your article (or some recognizable subset of the article title). We want to review the article drafts without knowing the authors' identities.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn't answered there, please e-mail volokh@stanford.edu.

Many thanks to the Stanton Foundation for its generous support.

* * *

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O'Connor College of Law, Arizona State University

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

The post Second Annual Aspiring Free Speech Scholars Workshop appeared first on Reason.com.

I often describe Chief Justice Roberts's decisions as "blue plate specials." If you read the bottom line, it seems like the liberal side win, but the mechanics of the decision helps the conservatives in the long run. In other words, the right might lose the battle, but they win the war. After more than two decades, the Chief Justice has made this balanced approach to jurisprudence into an art form.

Today's decision in FCC v. AT&T is the latest example.

The FCC alleged that AT&T and Verizon violated federal law, and assessed a forfeiture order of $57 million and $47 million, respectively. The order stated in capitalized bold letters the forfeiture was mandatory:

"IT IS ORDERED that, pursuant to section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80 of the Commission's rules, 47 CFR §1.80, AT&T, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of [$57,265,625] for willfully and repeatedly violating section 222 of the Act and section 64.2010 of the Commission's rules." App. to Pet. for Cert. in No. 25–406, at 131a.

The carriers argued that the government could not impose that fine without first providing a de novo trial in an Article III court under Jarkesy. But, following longstanding precedent, the carriers paid under protest, and brought suit to get their money back. The Fifth Circuit held that this regime, which required the mandatory payment of a fine before an Article III proceeding, violated the Seventh Amendment and Jarkesy.

As the case was litigated below, the question presented was whether the requirement to pay the fine before the proceedings is an Article III problem. But then the government, as it often does, changed the case on appeal. It turns out all along that the forfeiture was voluntary. These sophisticated firms were just too stupid to read a statute, and they mistakenly paid $100 million under protest.

On appeal, the Chief Justice whipped together a blue plate special. He agreed with AT&T and Verizon on the law, but ruled for the FCC. The Court stated, "The orders at issue . . . did not create an obligation to pay." Who knew? If only all lawyers were as smart as John Roberts.

This case split 8-1. Only Justice Thomas in dissent was willing to say the quiet part out loud:

The Court agrees with AT&T and Verizon that they were entitled to a jury trial de novo before an Article III court before they could be forced to pay. It agrees that they did not in fact receive such a jury trial de novo. But, it rules in favor of the Commission. The Court does so because the Commission, after AT&T and Verizon paid it over $100 million, took the position that its orders were not really binding after all. The Commission now agrees that AT&T and Verizon would have been entitled to a jury trial de novo in an Article III court had they declined to pay. Because its orders were not binding until after that jury trial, the Commission says, AT&T and Verizon in reality paid the Commission voluntarily. The Court accepts that account and does not grant the carriers any relief. Because I would give the parties an opportunity to proceed under a correct understanding of the law, I respectfully dissent.

Justice Thomas would have decided the case that was actually presented to the Court.

But as a court, we must resolve the cases before us. Regardless of what the Commission will do in the future, or what the Court believes it should have done all along, we granted certiorari in cases arising from two orders that theCommission addressed to AT&T and Verizon in 2024. At that time, neither the Commission nor the courts complied with the limits that the Court describes today.

Whenever you see statistics about how often the Fifth Circuit is reversed, ignore those statistics. It happens all the time that the government switches position on appeals from the Fifth Circuit. You cannot fault lower court judges who decide a case on one grounds, and the Supreme Court reverses on entirely new arguments. I made this same point in 2024 about the mifepristone case, which was radically altered on appeal.

The worst part of the majority opinion is Footnote 5. What happens to the $100 million that the carriers already paid. Do they get a refund? The Chief Justice refuses to answer the most obvious question that was necessitated by this "newfound account."

The carriers also argue that the specific forfeiture orders in this case misled them into paying, and that a refund is therefore appropriate. See Reply Brief 17–19; Tr. of Oral Arg. 75 (Government acknowledging thatit "cannot mislead someone into waiving his jury trial rights"); see also post, at 3, 6–7 (opinion of THOMAS, J.). We express no view on the merits of this argument, what relief may be available to the carriers, or in what proceeding.

The emperor has no clothes.

Now the case goes back to the lower court to determine if a refund is appropriate.

Still, I don't think Verizon and AT&T will be too upset. The Supreme Court agreed with the SG, and effectively neutered this statutory scheme:

And as explained above, the Commission is powerless to visit any adverse consequences on a regulated party who receives a forfeiture order.

If the FCC issues a forfeiture order, carriers will simply decline to pay and wait to be sued. The FCC does not have the resources to bring all of these cases in federal court. The government may have won the battle but lost this war. I'm sure the career people at the FCC were infuriated by SG's position, but here we are.

The post CJ Roberts Agrees with AT&T and Verizon, But Rules For FCC appeared first on Reason.com.

Judge Newman has been "temporarily" suspended from case assignments in the Federal Circuit by her fellow judges. She has filed a cert petition with the Supreme Court. Her "stealth impeachment" raises significant issues worthy of Supreme Court review.  Since all the briefing on her cert petition is now completed -- and a decision on the petition is imminent -- this post will briefly recap the issues, with the most important briefs linked.

As I've blogged about previously, recall that Judge Newman has challenged her suspension from new case assignments. (Fellow bloggers Josh Blackman and Jonathan Adler have also followed the case closely.) But in the latest ruling, the D.C. Circuit held that the Judicial Council's Reform and Judicial Conduct and Disability Act of 1980 blocks any review of the lawfulness of this suspension.

In March, Judge Newman filed a cert petition presenting the important constitutional question of whether she is entitled to her day in court to challenge the lengthy suspension, which has no end in sight. Her petition begins with this powerful introduction:

This petition presents questions concerning crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the federal judiciary and every litigant who appears before them. For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its "Great Dissenter") from the bench.

The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 ("the Disability Act") bars review of the unlawful actions taken against Judge Pauline Newman. This administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues, with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.

Judge Newman has continued to speak and write before the legal community, and no finding of disability has been made concerning her in the years since the unlawful administrative orders began. She voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger. She now has been suspended longer than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation are unprecedented.

Since then, significant amicus briefs have been filed supporting Judge Newman. Last month, I filed one such supporting amicus brief, joined by former federal judges Janice Roger Brown, Paul R. Michel, Kent A. Jordan, Randall R. Rader, Thomas I. Vanaski, and Susan G Braden.  Our brief argues that federal courts must be able to review constitutional claims of the type presented by Judge Newman:

In its decision below, the D.C. Circuit reaffirmed a 25-year-old precedent that prevents federal judges from seeking federal-court redress from Judicial Council actions that de  facto remove them from the federal bench. That bar applies without regard to whether—as alleged here—the Judicial Council has acted in violation of the judge's rights under the U.S. Constitution. Particularly in light of the threat to judicial independence posed by the many recent attacks on the authority of federal judges, the Court should grant review to reaffirm the authority of federal courts to intervene to hear claims raising constitutional claims of the sort at issue here.

Another supporting brief came from the District of Columbia Bar Association. Its brief  highlights the importance of Judge Newman's independent voice on the Federal Circuit:

The involuntary and indefinite suspension of Judge Newman from all judicial duties is an impeachment and deprives our legal community of an experienced and fiercely independent voice in the ongoing weaving of the tapestry of caselaw at the Federal Circuit. This ongoing suspension circumvents our Constitution because Judge Newman can only be impeached by Congress. See U.S. Const. art. II, § 4.

University of Houston law professor Andrew Michaels, a former law clerk to Judge Newman (2010 to 2012), also supports review in a strong amicus brief.  He explains why Judge Newman's allegedly "temporary" suspension is tantament to impeachment:

The Judicial Conduct and Disability Act of 1980 expressly prohibits permanent removal.2 Administrative tribunals should not be permitted to circumvent this prohibition (as well as constitutional guarantees) merely by characterizing the removal as an indefinite series of consecutive "temporary" suspensions. Judge Newman has now been "suspended" for over three years, and counting.

The Buckeye Institute, the Manhattan Institute, and the Committee for Justice also filed a supporting amicus brief, asking the Supreme Court to review the foundational principles at issue in the case:

This de facto impeachment circumvents the Constitution's structural safeguards. Impeachment requires bicameral action, supermajority agreement in the Senate, and  public, deliberative proceedings. These protections reflect the Framers' judgment that  removing a federal judge demands broad political accountability and careful deliberation.  The Federal Circuit's unilateral action evades those safeguards entirely, consolidating investigative, prosecutorial, and adjudicative functions within the judiciary itself.

Some of Judge Newman's former law clerks also filed to support her, arguing that she deserves a day in court:

Without judicial review of her suspension, Judge Newman is in limbo. To safeguard judicial independence and to provide due process, Judge Newman is entitled to meaningful review of her constitutional claims.

The sole brief opposing review came from the Federal Circuit's Chief Judge, Kimberly A. Moore, and was filed by the Solicitor General.  The SG's brief raises largely technical jurisdictional arguments, rather than disputing the merits of Judge Newman's claims. The brief argues:

[Judge Newman's] contentions lack merit and implicate no circuit split. As the courts below correctly held, Congress directed challenges to judicial-council orders to the Article III judges serving on the Judicial Conference, not to federal district courts. That sensible policy decision ensures a mechanism for reviewing allegations of judicial misconduct or incapacity that comports with separationof-powers considerations, offers multiple layers of review, and prevents overburdening federal courts with complaints about judicial-council decisions. And petitioner identifies no plausible conflict among the circuit courts warranting this Court's review.

Understandably, the SG's brief makes no attempt to discuss Judge Moore's bizarre AI cartoon about the Federal Circuit -- a cartoon that glaringly removed Judge Newman from her position on the court, as Josh Blackman discussed in detail here.

Yesterday, Judge Newman replied to Judge Moore's legal arguments. Thus, the briefing is complete on the cert petion. The Court is scheduled to consider the petition at its June 11 conference. That means we may hear as soon as Monday, June 15, whether the Court has agreed to hear Judge Newman's important petition.

I hope that the Supreme Court takes this case. The "stealth impeachment" launched against Judge Newman obviously has the potential to threaten judicial indpendent in many ways. The Supreme Court should speak definitively about whether this end-run around the Constitution's impeachment process is permitted.

Update: I corrected a few small typos in the original post.

The post Will the Supreme Court Review Judge Newman's Stealth Impeachment? appeared first on Reason.com.

The Eleventh Circuit Judicial Council may have thought Judge Eleanor Ross's apology was sufficient to keep the reprimand private, but those not wearing a robe continue to see a problem. Representative Jordan of the House Judiciary Committee is starting to discuss an investigation.

The House Judiciary Committee's top Republican said his staff is looking at possible congressional action after a Georgia federal judge had an affair in her chambers, in earshot of clerks, and lied to judiciary officials about it.

Judiciary Chairman Jim Jordan (R-Ohio) said Wednesday that his staff has "already put together a memo" on the facts involved in the misconduct findings against Judge Eleanor Ross of the Atlanta-based US District Court for the Northern District of Georgia.

The "key fact," he said in a brief interview, was that Ross lied to the judges investigating her misconduct. A judicial special committee report, released publicly in May, found the judge made "false statements" to the chief judges of her district and of the US Court of Appeals for the Eleventh Circuit, which oversees federal courts in Georgia, Florida, and Alabama.

"We're looking at it. We're going to run it by our members and see," Jordan said.

Jordan also wouldn't rule out impeachment as a possible response, a rare process for judges historically.

"Everything's on the table," Jordan said. "We don't take anything off the table."

To keep this discourse going, I am happy to pass along another guest post from Professor Arthur Hellman about Judge Eleanor Ross's situation.

If Judge Ross's "Improper Sexual Activity" "Greatly Damage[s] [Her] Credibility as a Judge," Does That Satisfy the Standard for Impeachment?

In a recent guest post, I explained why one of the findings of judicial misconduct by Atlanta Federal District Judge Eleanor Ross – making false statements to investigating judges – corresponds closely to conduct that was one basis for impeaching Federal District Judge Samuel B. Kent in 2009.  A second finding of misconduct by Judge Ross – labelled "Improper Sexual Activity in Chambers with a Law Enforcement Officer" in the Special Committee report – has no counterpart in any judicial impeachment proceeding that I'm aware of. But that does not mean that it could not be a possible basis for impeachment.

My purpose here is not to develop the point in detail, but rather to call attention to a statement in the Special Committee report that bears on the question. The Eleventh Circuit Judicial Council unanimously adopted the "findings and recommendations" of that report. To provide complete context, I will copy a little more of the paragraph than is probably necessary. Here is what the Special Committee wrote (pp. 15-16):

"For two years, the Subject Judge was a federal district judge who routinely heard criminal cases [and who] engaged in a secret extramarital relationship with a prominent officer of a large law enforcement agency in the judge's district—with the affair consisting of sexual intercourse in the Subject Judge's chambers during working hours. Moreover, during this period, the Subject Judge's spouse was not aware of the affair. Undoubtedly, a bad actor could have used these facts to try to blackmail the Subject Judge. Even absent a blackmail attempt, the publication of these facts would have greatly damaged the Subject Judge's credibility as a judge and brought disrepute to the federal judiciary."

The first quoted sentence summarizes the judge's conduct. The last sentence states that "the publication of these facts" – i.e., the facts stated in the first quoted sentence – "would have greatly damaged the Subject Judge's credibility as a judge and brought disrepute to the federal judiciary."

Preliminarily, it seems odd to state that "publication of [the] facts" would "greatly damage[] [Judge Ross's] credibility as a judge," etc. If that is so, it must be because public knowledge of the underlying conduct would have that result. In any event, the facts have now been published, and (notwithstanding the Judicial Council's efforts), the identity of the judge is also public knowledge. (The Council apparently acted as it did because it believed, as stated on the last page of the Special Committee report, that Judge Ross had provided "otherwise exemplary service to the court" and that she should be allowed to continue that service.)

Now let us consider the standard for judicial impeachment. Under the Constitution, an Article III judge like Judge Ross can be impeached and removed from office for "high crimes and misdemeanors." In my testimony at the House Judiciary Committee Task Force hearing on the proposed impeachment of Judge Kent, I sought to ascertain the meaning of that term as applied to judges. There were (and are) no judicial decisions to consult, because impeachment is not subject to judicial review. Instead, I looked to Founding Generation sources and to early commentators whose writings have been relied on by the Supreme Court to determine the meaning of other constitutional provisions.

Two of the commentaries are particularly relevant here. (For background and citations, see the hearing statement linked above.) William Rawle, writing about the "system" of impeachment, stated: "We may perceive in this scheme one useful mode of removing from office him who is unworthy to fill it." (Emphasis added.) The House Judiciary Committee, in its report recommending impeachment of Judge Kent, quoted this language from Rawle's treatise (p. 18).

Justice Joseph Story, in his widely cited treatise on the Constitution, discussed the question whether impeachment is limited to "official acts." Story asked: "Suppose a judge or other officer to receive a bribe not connected with his judicial office; could he be entitled to any public confidence? Would not these reasons for his removal be just as strong, as if it were a case of an official bribe?" (Emphasis added.) I cited this statement in response to a question from then-Rep. Adam Schiff, the chairman of the Task Force, at the Kent hearing. See pp. 215-16 of the hearing record.

Judge Story's premise seems to be that a judge or other officer warrants impeachment and removal if she has engaged in behavior that results in a loss of "public confidence" in her ability to perform the functions of her office. (And that behavior is not limited to "official acts.") This is not quite the same thing as saying that the officer is not worthy to fill the office, but there is substantial overlap, and both formulations suggest a similar forward-looking perspective.

It seems to me that the Special Committee's statement about Judge Ross's "improper sexual activity" corresponds closely to both delineations of the impeachment standard. The Committee said that public knowledge of Judge Ross's conduct would "greatly damage[] [her] credibility as a judge." If her credibility is greatly damaged, isn't that strong evidence that she is "unworthy to fill' the judicial position that she holds? And would she still be entitled to "any public confidence?"

None of this is definitive; each case is different. But these views of the impeachment standard – one of which was explicitly endorsed in the House Judiciary Committee report recommending the impeachment of Judge Kent – are sufficient to warrant the House in opening an inquiry into the possible impeachment of Judge Ross, independent of her false statements to investigating judges.

There is one aspect of the Eleventh Circuit's memorandum that I can't quite pin down. I agree that Judge Ross's sexual misconduct "damaged the Subject Judge's credibility." That is almost always true--a judge that engages in misconduct has diminished credibility. But did the Council seek to avoid further diminishing the judge's credibility by making the reprimand private? In other words, was the private reprimand an effort to ensure that Judge Ross could continue doing her job. She is already facing at least one recusal motion, and more will follow. Stated differently, once the Council determined that no meaningful punishment would be given, and that even the apology letters could be vague, the judges determined that the best path forward for Judge Ross's continued judicial service was to make the reprimand private. There is definitely some sort of coupling between the "diminished credibility" risk and the private reprimand, but I can't quite tease it out.

The post If Judge Ross's "Improper Sexual Activity" "Greatly Damage[s] [Her] Credibility as a Judge," Does That Satisfy the Standard for Impeachment? appeared first on Reason.com.

I wrote in April about the initial Indictment in U.S. v. Southern Poverty Law Center (M.D. Ala.). As I wrote, the indictment opens,

The Southern Poverty Law Center's ("SPLC") stated mission included the dismantling of white supremacy and confronting hate across the country. However, unbeknownst to donors, some of their donated money was being used to fund the leaders and organizers of racist groups, including the Ku Klux Klan, the Aryan Nation, and the National Alliance. The SPLC's paid informants ("field sources") engaged in the active promotion of racist groups at the same time that the SPLC was denouncing the same groups on its website….

[T]he SPLC explicitly sought donations under the auspices that donor money would be used to help "dismantle" violent extremist groups. In the SPLC's solicitations for donations as outlined herein, donors were not told that some of the donated funds were to be used by the SPLC to pay high-level leaders of violent extremist groups and others, nor were donors ever told that some of the donated funds were used for the benefit of the violent extremist groups or that some of the donated funds would be used in the commission of state and federal crimes.

Tuesday's Superseding Indictment offers some more detail about the allegations, among other things elaborating on the activities of one of the people working for it (labeled F-30, with "F" being the SPLC term for "field source") and adding information about two others (F-31 and F-32):

F-30 led the National Socialist Party of America, was a member of the Ku Klux Klan, and was the leader of a faction of the Aryan Nations that had chapters in approximately 17 states.

In approximately 2010, out of money and seeking to get out of the white nationalist movement ("the movement"), F-30 reached out to the SPLC, unsolicited, and discussed a plan to leave the movement. Thereafter, the SPLC employee offered F-30 a monthly salary of approximately $2,500.00 in addition to payment of expenses to continue to lead and maintain the violent extremist organization F-30 told the SPLC employee he wanted to leave….

From approximately 2010 through 2016, the SPLC secretly moved over $70,000.00 in donors' money from the SPLC operating account … onto F-30's pay card…. F-30 used donors' money to, among other things, travel to extremist rallies, host extremist rallies, donate money to leaders of other extremist organizations, recruit new members into his extremist organization, publish racist and extremist material for the purpose of recruiting new members, both inside and outside of prison, and create racist paraphernalia to sell at rallies to raise more money for his extremist organization. This was known to certain SPLC employees as they continued to secretly funnel donors' money to F-30.

During the same period that SPLC was secretly using donors' money to fund F-30's extremist activities, the SPLC had an entire "Extremist File" webpage dedicated to F-30. The SPLC used this "Extremist File" webpage to solicit more public donations. At one point F-30 asked an SPLC employee to soften the language about him on his "Extremist File" webpage so that it would not scare off new members from joining his extremist organization. The SPLC employee agreed and changed the language on the SPLC's "Extremist Files" webpage for F-30….

F-31 and F-32 were members of a Ku Klux Klan organization in their area. In or about 2010, F-31 and F-32 feared for their safety from other Klan members and wanted out of the movement. F-32 had seen media coverage about how the SPLC helped an individual leave an extremist organization and how the SPLC paid for this individual's tattoo removals. This media coverage prompted F-32 to reach out to the SPLC, unsolicited, and ask the SPLC for help to get F-31 and F-32 out of the movement.

An SPLC employee invited F-31 and F-32 to Montgomery for a meeting. There, despite their requests for help getting out of the movement, an SPLC employee encouraged F-31 and F-32 to stay in the movement and offered to pay them a $1,200.00 monthly salary as well as to pay for expenses as incurred. Once they were financially backed by the SPLC to do so, F-31 and F-32 agreed to remain in the movement….

Using donors' money, F-31 and F-32 attended extremist group rallies in multiple states. This led to F-31 rising from merely a group member to a leadership role within an extremist group. In the new leadership role, F-31 actively recruited new members using donors' money.

F-32 also participated in recruiting new members using donors' money. In addition, an SPLC employee knew that F-32 used donors' money to purchase material to make Ku Klux Klan garments for others.

F-31 and F-32 were reimbursed by the SPLC with donor money for all expenses they incurred for cross-burning events to include the wood and fuel used….

As I noted in my original post,

I take it that one defense argument as to the donor fraud claims may be that they were trying to dismantle violent extremist groups, both by paying money to get information about them and by causing the groups to do and say things that would discredit them. That may itself be discreditable, but the question will be whether it's a fraud on the donors.

And I followed up with expressing some tentative skepticism about the government's theory. (The government is also accusing the SPLC of making false statements to banks about the accounts that were used to fund its activities; I didn't focus much on that.) But in any event, the indictment and now the superseding indictment are factually noteworthy, whatever one thinks of the legal theory. Of course, note that they are just indictments, which is to say the government's allegations; we'll see what emerges at trial.

The post More on the Southern Poverty Law Center Allegedly Funding the American Nazi Party and Other Racists appeared first on Reason.com.

This Court recently began making uncertified transcripts of the audio recordings of Court proceedings (each such transcript, an "Uncertified Transcript") available to parties with a need for them. However, such Uncertified Transcripts are provided for informational purposes only. They are not checked, proofread, or corrected. They are not official Court records and may not be relied upon for any purpose absent agreement of all parties and further Court order;

Uncertified Transcripts are machine-generated by natural language processing artificial intelligence software that, while improving, often produces meaningful inaccuracies, limiting the usefulness of such transcripts and creating a risk that a person reading them, and particularly a non-party, will misunderstand what actually happened during the transcribed proceedings;

Certified transcripts, produced by qualified court reporters, are far more accurate and are, under Virginia law, the preferred method of recording and demonstrating what occurred in any Court proceeding. See, e.g., Code § 8.01-420.3;

This action involved matters of child custody, raising the best interests of the involved children as the paramount concern of the Court. See, e.g., Bottoms v. Bottoms, 259 Va. 410,413 (1995) (quoting Bailes v. Sours, 231 Va. 96, 99 (1986));

On April 17, 2026, Lauren Burke ("Requestor") submitted three requests for the Uncertified Transcript of the Trial (such requests, the "Request");

Requestor was neither a party to this action nor a witness at the Trial;

A qualified court reporter attended the Trial and would be able to produce a certified transcript of the proceedings;

The Court has reviewed the Uncertified Transcript of the Trial and found it to be replete with errors, omissions, and other inaccuracies such that it does not constitute an accurate record of the testimony, argument, and rulings made during the Trial;

Release of the Uncertified Transcript creates a substantial risk of misrepresenting the nature, details, and conduct of the Trial, which is contrary to the best interests of the children involved;

A more accurate, certified transcript should be available to the parties from the court reporter who attended the Trial;

Accordingly, declining to release the Uncertified Transcript of the Trial is in the best interests of the children and would result in no prejudice to any party;

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

The Request is DENIED …;

The Uncertified Transcript of the Trial must not be released ….

A certificated transcript, as the court notes, would be available, but would presumably cost a considerable amount of money (at least in the hundreds of dollars, depending on the length of the proceeding).

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[The] charges [in this case] were predicated on photographs and videos of the defendant's minor daughters taken between 2002 and 2016 and were found on a computer and an external hard drive in the defendant's home. The defendant's husband, Douglas Nichols, who is not a party to this appeal [but who reportedly has filed his own appeal -EV], was also charged … with possession of the same images and videos.

Some backstory on how the images were found, from a March article in the Decator Herald & Review (Tony Reid):

Detectives with the Decatur Police Department had been looking for evidence on four counts of … earlier criminal sexual assault charges against Douglas Nichols alone plus eight counts of aggravated criminal sexual abuse involving a female teenage victim when they came across the pictures and video that led to the child sex abuse image charges.

A December 2022 story in the same newspaper by the same reporter says:

On May 20, 2021, the Decatur Police Department received a complaint from an individual alleging sexual assault that had occurred over 10 years ago by a subject known to them. The case was assigned to a detective and an investigation into the allegations immediately commenced.

Back to the wife's appeal:

[D]efendant had two daughters, Ky.N. (born November 4, 2000) and Ki.N. (born October 1, 2002)…. Ky.N. testified [at trial] that she was voluntarily testifying, and that she had always felt safe and felt that her mother was supportive growing up. She testified that the family's digital cameras were usually placed where anyone could access or use them, that she had used her mother's phone to take pictures whenever she had wanted to, even daily, and that her sister had done the same. She also testified that her mother took photos of her and her sister all the time. Additionally, Ky.N. testified that her parents never asked her to take her clothes off before taking photographs or videos of her, and that they had never asked her to pose in a sexually suggestive manner….

Ky.N. testified that she didn't recognize the photos but did recognize the home. She testified that she recognized her sister and herself, but she did not remember the photographs being taken or the events being depicted. She stated that it looked like they were having fun playing horses or unicorns with the toilet paper tails, and that she and her sister commonly played with toilet paper.

In regard to People's Exhibit 4, she testified that she did not recognize the video, but that it was her sister Ki.N. playing with a pogo stick, and that she recognized both her and the defendant's voice. In regard to People's Exhibit 5, Ky.N. testified that she did not recognize the video, but that it was of Ki.N. and her cousin in the shower. She testified that her sister commonly sang in the shower and that, growing up, she recorded her sister singing in the shower by pointing the phone at the floor. On cross-examination, Ky.N. testified that she did not remember her parents ever taking nude photographs of her, and that she did not remember anyone else ever taking nude photos of her, and further reiterated she did not know who took the photographs but that it could have been anyone….

[D]efendant's husband … testified that they left the children with babysitters on Tuesdays when both he and the defendant were at work. He testified that he took photos of his children all the time. He also testified that neither he nor the defendant had ever asked them to take their clothes off to take pictures, nor had they ever asked them to pose in suggestive ways. He testified that anyone could use any cameras at any time, but that he was the one who backed up all the photographs and videos from the family's devices to the computer…. He testified that before he was charged, he had never seen any of the charged photographs, but that his children had been spontaneous, and that included doing the things seen in the charged exhibits….

The defendant … testified that she and Douglas would occasionally leave the children with babysitters every couple of weeks to go out together, and they left them with one every Tuesday while they both worked. She testified that the behavior seen in the photos was all in line with how Ky.N. and Ki.N. used to play. She testified that she took photos with her kids daily and that she took photos of them in both posed and spontaneous moments, but she never asked them to take their clothes off before doing so, nor did she ever pose them in sexually suggestive ways…. [She testified] that she never reviewed the old photos and stated she did not recall ever taking the charged images, but she admitted she had taken photos of her children while they were nude. She also admitted there were times she had recorded Ki.N. topless while she was engaged in physical activity….

[T]he defendant's other daughter … testified that she was thankful for her parents and felt safe growing up. She testified that growing up, the family camera was typically kept in the kitchen and that everyone, including members of her extended family, and possibly even babysitters, had used it. She also testified that she used her mother's phone to take pictures daily and her sister had used it frequently as well.

In regard to People's Exhibits 7 through 12, she testified that she did not recall the photographs being taken, but believed that they had come up with the idea of making and playing with toilet paper tails, and that such activity was representative of the sort of spontaneous things they would do. In regard to People's Exhibit 4, she testified that she was the girl on the pogo stick and that it was not uncommon for her to take off her shirt when she got hot as a kid. She also testified that she recognized defendant's voice, as well as her sister's voice in the video, but did not remember which one took the video.

In regard to People's Exhibit 5, she testified that the girls in the shower were herself and her cousin, and that they were having fun showering and singing "Bop to the Top." She also testified that she did not know who took the video. Finally, Ki.N. testified that her parents had never asked her to take her clothes off for a photo or video, nor had they ever asked her to pose in a sexually suggestive manner.

On cross-examination, she testified that she did not specifically remember if she took her top off in People's Exhibit 4 because she was hot, nor did she remember who took People's Exhibit 5, despite her claim on direct examination that she could see anyone who came in the bathroom due to its layout. She also testified that she didn't believe People's 7 through 12 were posed as she believed they were spontaneous….

The court goes through the relevant photographs in detail, and concludes that, though they showed some nudity, they "were not lewd as a matter of law" (which is what would be required to find that the photographs were constitutionally unprotected child pornography). The analysis is long, but here's an excerpt:

People's Exhibit 4 is a 17-second-long video of a partially nude adolescent female with partially developed breasts fully exposed. The video is filmed by a separate individual and appears to be taking place in a finished basement living room type area due to the placement of the window on the roofline of the wall and the presence of couches and a large television in the room,. As the video begins, the female's entire body is visible in the frame, and she is only wearing underwear, socks, and slippers, with no other clothing. She is holding the pogo stick handles in her hands, with one foot on the pogo stick and one foot on the floor.

The female appears to know she is being recorded because she looks straight ahead, then at the camera, then back straight ahead. As the female begins jumping on the pogo stick, the video zooms in on her clothed pubic area, and then moves upwards, focusing on her head and unclothed torso, though much of her legs and arms remain visible as well. The female then falls off the pogo stick and out of frame. As the female steps back into frame, the video zooms out to show her whole body again, and she returns to her starting position. The video then ends.

Turning to the first factor [of the test that the Illinois Supreme Court developed to determine whether material was child pornography], the focal point of the video, we note that the video begins with the female visible "head-to-toe"; but once she begins bouncing it does zoom in on the area of her clothed genitals, then moves upward to focus on her head and unclothed torso until she quickly falls out of frame and it zooms back out to capture her whole body. The zooming appears somewhat clumsy. Taken as a whole, we find that this factor weighs in favor of finding that the video was lewd.

Turning to the second factor, the setting of the video appears to be a basement living room. There is nothing in the setting that would suggest or invite sexual activity. Therefore, we find that the video's setting does not weigh in favor of finding it lewd.

Turning to the third factor, the adolescent female in the video is playing with a pogo stick, which is an age-appropriate activity. While she knows she is being recorded, she does not appear posed but instead appears to be actively playing in a moment of adolescent spontaneity. While the toplessness is inappropriate for the activity, we find it a minor factor here, as we note that we do not consider the nudity itself under this factor. Therefore, taken as a whole, we find that this factor does not weigh in favor of finding that the video was lewd.

Turning to the fourth factor, we note that the adolescent female in this video appears partially clothed, wearing underwear on her genitals but not wearing any top. While the nudity is partial, we do find that this factor weighs in favor of finding that the video was lewd.

Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the adolescent female, to suggest sexual coyness or willingness to engage in sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.

Turning to the sixth and final factor, we note that the video does not appear to suggest an intention to elicit a sexual response in an objective viewer. Neither does the video appear to invite the viewer to perceive the images from a sexualized or deviant point of view, such as that of a voyeur, as the adolescent female appears to know she is being recorded. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.

In evaluating all of the factors together, we find that factors one and four are present while factors two, three, five, and six are not. While not all factors need to be present to support a finding that a video is lewd, we find that, taking into account the overall content of the image and the age of the minor, the video shows an adolescent engaged in nonsexual conduct that is not inappropriate for her age. While we find the video deplorable, it does not meet the standard required to deem it objectively lewd. Accordingly, we find that it does not constitute child pornography under Illinois law.

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Last night, the Trump Administration revealed plans to use Section 301 of the Trade Act of 1974 to impose massive new tariffs on imports from some 60 countries around the world, under the pretext that this is necessary to combat their importation of goods that use forced labor:

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Yesterday, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of Lighthiser v. Trump, the latest in a series of lawsuits filed on behalf of youth plaintiffs alleging that the federal government's failure to take meaningful action to mitigate climate change--and, in particular, the Trump Administration's promotion of fossil fuels--violate the U.S. Constitution.

The panel made quick work of the plaintiffs' claims in a brief, unpublished opinion. Despite the impressive roster of amici lined up to support their claims, the plaintiffs could not convince any of the three judges on the panel (Owens, Van Dyke, and Sung) that they had standing, or that the merits of their claims were worth discussing.

A central argument in this appeal was whether the plaintiffs could distinguish their case sufficiently from the Juliana case, which the Ninth Circuit had also dismissed on standing grounds. Unsurprisingly, the court did not find the effort to distinguish the cases convincing.

From the opinion:

1. Plaintiffs have not plausibly alleged that their asserted injuries are "caused by the challenged" Executive Orders. Juliana v. United States, 947 F.3d 1159, 1168 (9th Cir. 2020).1 According to the complaint, Plaintiffs will be harmed by numerous agency actions which, Plaintiffs allege, will "implement" the Executive Orders over several years. But Plaintiffs can only speculate that the Executive Orders are the cause of the many agency actions they allege will exacerbate climate change. See G.B. ex rel. G.P. v. EPA, 172 F.4th 1042, 1060 (9th Cir. 2026) ("[A]gencies consider a great number of … factors in determining when, what, and how to regulate or take agency action." (citation modified)); Clapper v. Amnesty Int'l USA, 568 U.S. 398, 412–14 (2013) (rejecting traceability theory premised on speculation that government surveillance would occur, if at all, under challenged authority rather than another). Furthermore, Plaintiffs seek to enjoin any "implementing" agency action, including those not identified in the complaint. But we "cannot presume to predict how governing officials might exercise their discretion." G.B., 172 F.4th at 1059 (citation modified). Whether agencies will rely on the Executive Orders when taking future action "is mere conjecture." Id. at 1061 (citation modified). For these reasons, the link between the Executive Orders and Plaintiffs' alleged injuries is too speculative to support Article III standing. See FDA v. All. for Hippocratic Med., 602 U.S. 367, 383 (2024); G.B., 172 F.4th at 1058–62.

2. Plaintiffs' requested injunctive relief is also neither "substantially likely to redress their injuries" nor "within the district court's power to award." Juliana, 947 F.3d at 1170 (citation omitted).

As to the first redressability prong, Plaintiffs' standing theory suffers from a defect that mirrors their traceability problems. See All. for Hippocratic Med., 602 U.S. at 380–81 (noting that "causation and redressability … are often flip sides of the same coin" (citation modified)). They have not plausibly alleged that enjoining federal agencies from implementing the Executive Orders is substantially likely to prevent agencies from taking similar emissions-inducing actions under other lawful authorities.

Second, as in Juliana, Article III does not give federal courts the power to grant or enforce the injunctive relief Plaintiffs seek. Juliana, 947 F.3d at 1171. The Executive Orders state the President's national security, energy, and economic policy in broad terms, then direct executive branch agencies to pursue these policy goals consistent with applicable law. Plaintiffs' requested injunction, by its terms, would prevent the President from concluding, among other things, that it is "in the national interest to unleash America's affordable and reliable energy and natural resources," Exec. Order No. 14154, 90 Fed. Reg. at 8353; that current energy infrastructure is "far too inadequate to meet our Nation's needs," Exec. Order No. 14156, 90 Fed. Reg. at 8433; and that "coal is essential to our national and economic security," Exec. Order No. 14261, 90 Fed. Reg. at 15517. The requested injunction would likewise bar agencies from effectuating the President's policies—"consistent with applicable law"—by reconsidering prior actions, "encourag[ing] energy exploration and production on Federal lands and waters," and "protect[ing] the United States's economic and national security … by ensuring that an abundant supply of reliable energy is readily accessible in every State and territory of the Nation." Exec. Order No. 14154, 90 Fed. Reg. at 8353–54.

Issuing such an injunction would effectively place one federal district court in charge of executive branch energy policy—"an extraordinary and unprecedented role" for a member of the "unelected and politically unaccountable branch." Juliana, 947 F.3d at 1173 (citation omitted); see also id. at 1171–72 (crafting environmental policy involves "a host of complex policy decisions entrusted … to the wisdom and discretion of the executive and legislative branches" (citation modified)).

Plaintiffs argue that, unlike the Juliana plaintiffs, who sought a courtsupervised "remedial plan" requiring the federal government to "draw down harmful emissions," id. at 1170–72, they seek only "traditional prohibitory injunctive relief." But like the district court, we are not persuaded. Similar to the injunction requested in Juliana, the injunction Plaintiffs seek would require extensive judicial supervision of executive branch actions related to energy policy. Indeed, Plaintiffs explicitly seek to undo everything from staffing reductions, to the revocation of research grants, to anticipated rule changes, to the type of language the current administration has used on government websites. To assign such policy-laden choices to one district court would invert the "common understanding of what activities are appropriate to legislatures, to executives, and to courts." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

Moreover, as the district court recognized, enforcing such an injunction would require a court to determine whether "an untold number" of executive branch actions even "implement" the challenged Executive Orders. That task would present challenging questions that "necessarily would entail a broad range of policymaking." Juliana, 947 F.3d at 1172. For example, would the injunction prohibit agencies from advancing any policies like those expressed in the Executive Orders—promoting coal, oil, natural gas and hydropower; increasing domestic energy production; or expediting permitting and leasing timelines, to name a few? For every energy-policy action, would the court need to scrutinize agency officials' motives in search of any hidden reliance on the enjoined Executive Orders? And what if an agency were to rely on other authorities in addition to the Executive Orders? The district court correctly recognized that disputes over such questions would inevitably result in the court "spending a lot of time together" with the parties and holding hearings "until the expiration of [their] collective lifetimes." These unmanageable consequences, for which there are no judicially manageable standards, confirm that Plaintiffs' requested injunction is beyond Article III power. Juliana, 947 F.3d at 1173–75. After all, an injunction "is only as good as the court's power to enforce it." Id. at 1173.

Further, by effectively challenging hundreds of current and anticipated agency actions in one lawsuit, Plaintiffs seek to circumvent the jurisdictional and procedural rules Congress has established for challenges to agency actions. See, e.g., 5 U.S.C. §§ 702, 704, 706; 42 U.S.C. § 7607(b)(1). Such a sweeping injunction against hundreds of agency actions in one lawsuit is unprecedented. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 892–94 (1990) (explaining that rather than "wholesale" challenges to "flaws in the entire program," a "case-by-case approach … is the traditional, and remains the normal, mode of operation of the courts" (citation modified)); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996) ("Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary.").

This may not be the end of this suit, however. The plaintiffs may well file a petition for rehearing en banc or a petition for certiorari, as they have in prior climate suits. I also suspect they will file additional suits, raising equivalent claims about specific Trump Administration actions. Such suits may overcome the standing hurdle, but I doubt they will be any more successful. The underlying constitutional claims are an example of overreach. Current doctrine cuts against such constitutional claims quite decisively.

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Blanche: "We are not moving forward with the Fund. Period"

Rep. Meng: "Not moving forward ever?"

Blanche:  "Correct."

So there you go.

That's good news, of course; the Fund was an outrage, the Settlement Agreement setting it up was laughably incoherent and never should have seen the light of day, and the lawyers responsible for the entire exercise should be ashamed of themselves and should probably be hit with Rule 11 sanctions.

It's not the last we'll hear of this matter. District Judge Williams, you will recall, has re-opened the Trump v. IRS case (the one the parties ostensibly "settled") in order to investigate "grievous allegations that [Trump] voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that was collusive from the start and was only filed to provide the imprimatur of legality for an unlawful settlement."

That inquiry is not going away just because Acting Attorney General Blanche promises that the DOJ isn't "moving forward" with setting up the Slush Fund.  Briefs are due June 12.

Another loose end: That bogus "Settlement Agreement," signed by the Acting Deputy Attorney General "on behalf of the United States," says that within 30 days the Attorney General shall issue an Order setting up the Fund and providing it with money. It doesn't say "The Attorney General may set up the Fund if he feels like it," it obligates him to do so.

Blanche is now the Attorney General. He doesn't get to pick and choose which obligations he will abide by and which he won't. If the "Settlement Agreement" is still in force, it obligates him to do certain things. Don't we need to do some of that fancy lawyer stuff here, to make it clear that this obligation no longer exists?  A promise from Todd Blanche - who, as I've said before, is probably not going to be around for too much longer, as a result of having orchestrated this embarrassing fiasco) -- that the DOJ isn't "moving forward" with the Fund isn't really sufficient.

It's just a small legal technicality, but you'd expect the Attorney General of the United States to be mindful of legal technicalities, no?

And there's Loose End #3: The waiver of all claims the IRS may have against Trump.  Blanche, in his testimony, went to great lengths to make clear that in his view, that grant of immunity is still valid.  [See from about 43:00 onward in the video of his testimony]

Blanche's argument for its validity is that the Settlement Agreement had two parts: the Anti-Weaponization Fund and the waiver of IRS claims, and that the decision not to move forward on the former does not affect the validity of the latter.

It's confused nonsense.  Judge Williams, I trust, will get to the bottom of this.  The Settlement Agreement is not only of no legal effect (because the "parties" were not truly adversaries), it also happens not to contain any waiver of IRS claims.  [See for yourself if you don't believe me]

Blanche's May 19th Order, which was issued after the Settlement Agreement was signed, does contain the waiver clause, but it is of no legal effect whatsover.  It does not purport to be a modification of the original Settlement Agreement (which, by its express terms, can only be modified "only with the written agreement of the Parties" [Art VIII]). And if its not part of the bogus Settlement Agreement, what is it?  Does Blanche think he is authorized to grant immunity to anyone he wants to immunize, just by issuing an Order to that effect? Really?! Without receiving anything in return?

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Attorneys Mike Singh Sethi and William Rounds filed briefs in this Court with multiple nonexistent cases, misattributed quotations, and gross misrepresentations of real cases. Sethi and Rounds claimed that the errors were the product of innocent typographical mistakes. And they repeatedly denied the possibility that generative artificial intelligence ("AI") might have produced the errors.

Having identified other cases in which Sethi or Rounds filed briefs that presented similar problems, we ordered them to show cause why they should not be sanctioned, suspended, or disbarred from practice before this Court. We have considered their response, and we now impose discipline….

We issue this disciplinary order, and explain our reasoning at some length, as a warning to the members of this Court's bar: be aware of the risks of overreliance on generative AI, read everything cited in a court filing—whether drafted by generative AI or not—and disclose quickly and transparently generative AI hallucinations that are inadvertently included in court filings….

There's a lot of factual detail in the opinion, but here are a few general observations from the court:

Two types of [generative AI] mistakes, or "hallucinations," are most relevant: fabrications and inaccuracies. Fabrications are instances in which the generative AI tool provides cases or quotations that do not exist at all.

Inaccuracies are more subtle. The generative AI tool might cite to real authorities but provide an answer that is legally or factually inaccurate or not supported by the citation.

Fabrications are the most notorious hallucinations, but inaccuracies may prove more dangerous to our profession in the long run. Inaccuracies are more likely to go unnoticed by attorneys and judges because they are not always susceptible to facial checks. Rather, "[i]dentifying these misunderstandings often requires close analysis of cited sources." With close analysis, some inaccuracies might be clear—for instance, claiming that a case expressly stands for a proposition about a certain topic when the case does not discuss that topic at all. Others may be difficult to distinguish from poor legal reasoning.

And inaccuracies are common, even in newer generation models that produce fewer fabrications. Including inaccuracies, legal-specific generative AI tools from Westlaw and Lexis hallucinated 17% and 33% of answers, respectively, to a representative set of queries run in 2024. [Citing Magesh et al., Hallucination-Free? Assessing the Reliability of Leading AI Legal Research Tools, 22 J. Empirical Legal Stud. 216 (2025).] {Popular legal AI tools have apparently adopted a definition of hallucination that only includes fabrications. We agree with Magesh et al. that this is "plainly irrational," as such a definition "would require us to conclude that a tool that links only to Brown v. Board of Education on every query … has provided 'hallucination-free' citations."}

The most common error modes of the latest generation tools include misunderstanding holdings, failing to distinguish between legal actors (e.g., presenting a rejected party argument as the holding of the court), and failing to respect the hierarchy of authorities. In other words, the sort of errors that we might expect a first-semester law student to make, but certainly not licensed attorneys appearing before this court.

As we will explain, filing briefs with hallucinated fabrications and inaccuracies violates procedural and ethical rules. Lawyers using generative AI must thus be aware of the tendency of generative AI to make these mistakes and guard against them….

However legal papers are prepared, and however legal technology develops, our procedural and ethical rules apply with equal force. Just as faithful adherence to those rules would prevent the submission of generative AI hallucinations, such adherence would also prevent the submission of similar human-generated errors….

[A] competent and diligent attorney must do more than prompt generative AI, check that the citations provided by the AI are real and the subject matter roughly on point, and call it a day. A competent and diligent attorney must also read and reason….

It is no excuse that Sethi entrusted substantive cite checking to subordinates, and it is no excuse that Sethi purportedly did not know his subordinates had used generative AI. It was Sethi's signature, and his alone, on the briefs. So, it was Sethi who "present[ed]" the unwarranted contentions.

And Sethi's signature was an attestation that he personally reviewed the contents of the brief, including the cited authorities, and that they were accurate. Sethi did no such review, and his attestation was not conditional on the tools that his subordinates might have used to prepare the first draft, nor could it be.

To the contrary, Sethi attests that he and Rounds "do not normally vet citations used by the Brief writer during our review." That is an extraordinary confession. A competent and diligent attorney cannot decline to "vet" citations, in a brief he signs, for substantive validity—in other words, to read the cited authorities and ensure that they are on point.

We do not suggest that every minor typographical error in a citation gives rise to a violation of the ethical and procedural rules. The errors we identify, however, are not plausibly typographical….

We stress that when an attorney learns of any error in a filing—including generative AI hallucinations—he should immediately alert the court and opposing counsel of the error and disclose its source. There is no upside to denying the use of generative AI or to passing off an AI hallucination as an innocent typographical error. The other rules discussed in this order—competence, diligence, meritorious arguments, citations to authority, attestations to accuracy—do not turn on the source of the error.

If, in the Motion to Correct, Sethi and Rounds had disclosed that AI was used in the opening brief against firm policy and apologized for failing to check the brief, lesser sanctions may have been warranted. But that is not what they did. The gravity of discipline we impose, including the temporary suspension of practice, is owed to this repeated failure of candor….

And here are a few excerpts as to the factual details, though there's a lot more on this in the opinion:

Sethi filed an opening brief in this case with multiple fabricated citations and quotations. Sethi cited two cases that do not exist and never existed: "Eduardo v. Garland, 28 F.4th 742 (9th Cir. 2022)," and "Lay v. Holder, 729 F.3d 962 (9th Cir. 2013)." And Sethi twice attributed quotations to real opinions in which the quoted language does not appear: Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001), and Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015). The Attorney General did not flag the fabricated citations in the answering brief.

After we denied the parties' joint motion to submit Lnu on the briefs, Sethi filed a Motion to Correct the Record Re: Errata to Petitioner's Opening Brief ("Motion to Correct"). The Motion to Correct represented that the two nonexistent cases—"Eduardo v. Garland" and "Lay v. Holder"—were "typographical errors." Sethi sought to replace those cases with two cases that have similar names, different reporter numbers, and in the case of "Lay," a different year: Udo v. Garland, 32 F.4th 1198 (9th Cir. 2022), and Lai v. Holder, 764 F.3d 1098 (9th Cir. 2014). He also sought to "correct" the holding for which "Lay" was cited. Sethi did not explain how such significant typographical errors might have occurred. Nor did he address the quotations misattributed to Kamalthas and Avendano-Hernandez.

Sethi did not appear for oral argument. Rounds appeared on behalf of Petitioners instead. At oral argument, we asked Rounds to explain the errors identified in the Motion to Correct. Rounds stated that the intended citations were "somewhat garbled" and reiterated the claim that Sethi had intended to cite real cases. Rounds claimed that the real cases "stand for the same proposition." As for the source of the errors, Rounds asserted that he was "not sure" but that "it looks like it was a copy and paste error or something like that."

We then asked Rounds whether the errors might have been the product of generative AI, to which Rounds said that AI "was not used." Rounds explained that the quotation misattributed to Kamalthas appeared in a different case, but did not explain how the misattribution occurred. We again asked Rounds whether generative AI might have been used to supplement the briefs, to which Rounds again said: "No. AI was not used …." We raised the other quotation misattributed to Avendano-Hernandez and again asked whether the error was the product of generative AI, to which Rounds again said "No."

After further questioning on the source of the errors, Rounds finally conceded that it was "possible" that AI might have been used by the individual who drafted the briefs. He clarified that although Sethi's name was on the briefs, Sethi did not draft the briefs, but only "reviewed" them. Rounds later revealed that the brief writer was not yet licensed to practice law, and that no licensed attorney read the cases cited by the unlicensed brief writer…

After oral argument, we ordered Sethi and Rounds to show cause ("Order to Show Cause") why they should not be sanctioned, suspended, or disbarred from practice before this court for "conduct unbecoming a member of [this] court's bar," and for "violating applicable rules of professional conduct." In the Order to Show Cause, we identified additional issues in the Lnu reply brief…. We also identified similar issues in briefs filed by Sethi in other cases pending in this Court….

The misconduct in this case did not end with the initial filing of the Lnu briefs. At every subsequent step—including the Motion to Correct, oral argument, the Response to our Order to Show Cause, and more recent filings in other cases—Sethi and Rounds have knowingly or recklessly made false statements to this Court….

Instead of transparency, and despite our Order to Show Cause, Sethi has apparently chosen to engage in more subtle subterfuge. In one of the matters we identified in our Order to Show Cause, Contreras Pelayo v. Bondi, No. 24-5168, Sethi filed a "Notice of Errata" that identified two hallucinated citations and requested to replace them with real citations. The motion did not represent the errors as "typographical." But nowhere in that motion did Sethi disclose that the prior citations were hallucinations. Instead, Sethi merely said that the brief "contains errors in two of the case citations." He then simply listed the fabricated citations and said that each was "an error" or "incorrect," and then identified what the real citation "should be."

This is not sufficient disclosure. By citing the hallucinations in the opening brief and signing the brief, Sethi previously attested to the accuracy, and thus the existence of, the hallucinated citations. Swapping a hallucination out for a real case does not correct the prior false claim that "this is a real case." By failing to notify the Court that Sethi previously cited cases that do not exist, Sethi "fail[ed] to correct false statements of … law previously made to the tribunal." …

The court imposed the following disciplinary measures:

1. Sethi and Rounds are hereby suspended from practice before this Court for a period of six months starting ten days after this Order is filed.
2. Sethi and Rounds are ordered to provide a copy of this Order to their clients, opposing counsel, and the presiding judge in every pending state or federal case in which they are counsel of record. They shall also provide a copy of this Order to every attorney in their law firm….
3. Sethi, Rounds, and all attorneys at the Firm are ordered to include in all future filings a statement, made under penalty of perjury, addressing whether generative AI was used, disclosing the name of the tool used, and certifying that the attorney signing the brief or other filing has personally reviewed the filing and that all citations and quotations therein refer to existing authority….
4. The Court orders the Clerk of Court to serve a copy of this Order on the State Bar of California and any other applicable licensing authorities for further proceedings as appropriate.

The post Ninth Circuit on AI Hallucinations appeared first on Reason.com.

As big as Callais was, I think Allen v. Milligan may prove to be more significant. The Court smacked down the notion that the government "defies" court order when it takes actions designed to be tested before the Supreme Court. The Court also signaled that the presumption of good faith for purposes of Section 2 should apply to other Fourteenth Amendment contexts. (Indeed, I wonder why prosecutors should not get the same presumption of good faith under Batson; this is a topic I am developing.) But the very first sentence of Allen dropped a bomb that most people may have missed:

In Louisiana v. Callais, 608 U. S. ___ (2026), to resolvethe tension between vote-dilution claims under §2 of the Voting Rights Act of 1965 and our colorblind Constitution, we updated the standards for §2 liability established by Thornburg v. Gingles, 478 U. S. 30 (1986).

Did you see it? The Court referred to "our colorblind Constitution." Of course, Justice Alito was channelling Justice John Marshall Harlan's dissent in Plessy v. Ferguson (1896). [Update: The majority opinion was styled as per curiam, but I am reasonably confident that Justice Alito was the primary author.]

But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.

These powerful words were read and re-read during the worst days of Jim Crow. Yet, the Supreme Court has never actually embraced Justice Harlan's conception of a color-blind constitution, not even in Brown. To the contrary, the Court has often found the Constitution prohibits a color-blind approach to equal protection.

Justice O'Connor made this point expressly in Shaw v. Reno:

Despite their invocation of the ideal of a "color-blind" Constitution, see Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J., dissenting), appellants appear to concede that race-conscious redistricting is not always unconstitutional. See Tr. of Oral Arg. 16–19. That concession is wise: This Court never has held that race-conscious state decisionmaking is impermissible in all circumstances.

Shaw v. Reno, 509 U.S. 630, 642, 113 S. Ct. 2816, 2824, 125 L. Ed. 2d 511 (1993).

Query if Callais and now Allen have abrogated Shaw.

Justice Thomas, for his part, routinely cites Harlan's dissent, but always in separate writings, including Adarand Constructors, Holder v. Hall, and other cases. Justice Thomas addressed the issue squarely in Parents Involved:

Most of the dissent's criticisms of today's result can be traced to its rejection of the colorblind Constitution. The dissent attempts to marginalize the notion of a colorblind Constitution by consigning it to me and Members of today's plurality.[F19] But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (dissenting opinion). And my view was the rallying cry for the lawyers who litigated Brown. See, e.g., Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O.T.1953, p. 65 ("That the Constitution is color blind is our dedicated belief"); Brief for Appellants in Brown v. Board of Education, O.T.1952, No. 8, p. 5 ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone");20 see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, p. X (1993) (remarks of Judge Motley) ("Marshall had a 'Bible' to which he turned during his most depressed moments. The 'Bible' would be known in the legal community as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 552, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). I do not know of any opinion which buoyed Marshall more in his pre-Brown days …").

[FN19] The dissent halfheartedly attacks the historical underpinnings of the colorblind Constitution. Post, at 2815 – 2816. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 2815 (citing Slaughter–House Cases, 16 Wall. 36, 71–72, 21 L.Ed. 394 (1873)). What the dissent fails to understand, however, is that the colorblind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g., Part I–B, supra. Race-based government measures during the 1860's and 1870's to remedy state-enforced slavery were therefore not inconsistent with the colorblind Constitution.

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 772–73, 127 S. Ct. 2738, 2782–83, 168 L. Ed. 2d 508 (2007).

Does the Supreme Court now agree with Justice Thomas's invocation of Parents Involved? Did the other Justices, rushed on the emergency docket, miss this line? Who knows? 130 years later, Justice Harlan's Plessy dissent is now the "supreme law of the land."

The post The Supreme Court For The First Time Refers To Our "Colorblind Constitution" appeared first on Reason.com.

In this case, the only alleged defamatory statements Defendant made were included in his YouTube video where he stated that Auto Junction "don't give me my money," "they don't give me my bucks." As Defendant's reply brief points out, these statements are not defamatory because they are not substantially false. Indeed, Plaintiff's First Amended Complaint admits that the contract between Plaintiff and Defendant provided for a delivery price of $1,150.00. Because the vehicle was delivered late and with only one set of keys, Auto Junction paid what it considered to be the "reasonable value" of the delivery, but did not pay the full contract amount. Accordingly, Plaintiff's defamation claim fails as a matter of law.

The crux of Plaintiff's Complaint, however, is not that Defendant made defamatory statements himself. Instead, the Complaint asserts that Plaintiff encouraged his many followers to post false, negative reviews about Plaintiff's business. The damage to Plaintiff's business was accomplished by those false negative reviews posted by Defendant's Youtube followers. As a result, Plaintiff also asserts a claim against Defendant for "aiding and abetting" defamation.

In order for a plaintiff to prevail on an aiding and abetting claim, proof of the following elements is required: "(1) the primary tortfeasor must commit a tort causing injury to the plaintiff; (2) the defendant must know the primary tortfeasor's conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tortfeasor in achieving the breach." "Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance." Restatement (Second) of Torts § 876, cmt. d (1979). An illustration to section 876 of the Restatement (which Arizona follows) elucidates the kind of encouragement necessary to create aiding and abetting liability under Illustration 4: "A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C."

The Court finds that Plaintiff's Complaint and the evidence submitted in response to the pending Motion establishes that Defendant's conduct was intended to encourage his followers to attack Plaintiff's business publicly. Plaintiff presented evidence that these third-party reviews were false and defamatory and are therefore unprotected speech.

While Defendant's encouragement in the video does not reflect a direct request that his followers post negative reviews of Plaintiff's business, the Court finds that Plaintiff's Complaint and the evidence submitted in response to the pending Motion are sufficient to infer that Defendant intended that result and knew it would be achieved by the statements made in his video. See Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund (Ariz. 2002) (knowledge for purposes of aiding and abetting "may be inferred from the circumstances."). Accordingly, the claim that Defendant aided and abetted the defamation of Plaintiff's business is not subject to dismissal as a matter of law, either under the anti-SLAPP statute or for its failure to allege the elements of an aiding and abetting claim….

But the court also concluded that the claim was foreclosed by the statute of limitations, and the Arizona Court of Appeals affirmed on that ground this February. Here are more details on Kaluzhin's post, from the appellate decision:

[Kaluzhin's] video showed a verbal altercation between Kaluzhin and an Auto Junction representative. At the time, Kaluzhin had about 150,000 YouTube followers. {As of 2024, Kaluzhin had about 1 million YouTube followers.} To support its claims, Auto Junction highlighted a portion of the 2019 video where Kaluzhin addressed his followers and stated:

Hey, gang, they don't give me my money. Here is the name of the dealership center: Auto Junction Benz & Beemers. The huge appeal… huge appeal to you, guys… Phoenix, dealership center… they don't give my bucks. How is it possible to screw people like this?! …

You must show what crazy subscriber you are, who stand… stand for the truth. This is the very case to stand for truth. Go ahead, my… my crazy ones. Nobody can take money from an average driver. Nobody can…

The record shows that reviews began on or about November 1, 2019, from various sources. Some reviews included only a rating while other reviews included comments. The following are some of the comments Auto Junction received:

You will delete reviews for a long time. Until you return to the driver his earned money….

Awful customer service. Rude people. Don't buy anything here! …

Scammers! …

the owner rude pig. He dont wanna pay for delivery everytime. stay away!

Kaluzhin's videos are apparently in Russian, and plaintiffs argued on appeal that "his fanbase is largely made up of persons in Russia and surrounding areas in Western Asia and Eastern Europe." His YouTube channel appears to be https://www.youtube.com/@i_am_americanec.

Note that on Feb. 7, 2022, Judge Sara J. Agne issued a TRO blocking defendant "from posting or allowing to remain posted the video on YouTube dated 10/28/2019 with the link as follows https://youtu.be/Bpdmys6EMW8, as well as any online reviews on any internet platform to include but not limited to YouTube, Google, Yelp, Car.com, BBB.org, or Trustpilot, concerning the Plaintiff and/or encouraging others to post online reviews about the Plaintiff."

By the way, the court didn't discuss 47 U.S.C. § 230, perhaps because it wasn't raised by the defendant. It's not clear whether § 230 have offered Kaluzhin a defense against the aiding and abetting theory.

The post Influencer's Nondefamatory Service Review Could Be Aiding and Abetting of Defamatory Comments appeared first on Reason.com.

On July 2, 2025, over a year after [a 2022 harassment restraining order against her] expired, Akoto moved to have the record of the case sealed under Rule 4, subdivision 1(e), of the Minnesota Rules of Public Access. In that motion, Akoto asserted that the public accessibility of the HRO records "continue[d] to cause significant harm to [her] personal and professional life," and that it had negatively impacted her "ability to obtain housing, employment, and to rebuild [her] reputation and relationships." … The district court denied Akoto's motion [and a follow-up filing that] attached exhibits purporting to show that she is underemployed and has had to live in poor conditions because of the public accessibility of the HRO records….

[T]here is a presumption in favor of access to court records. A party seeking to restrict access has the burden of presenting "strong countervailing reasons" or "most compelling reasons" why the records should be sealed. Then, "[a] balancing test is applied to determine whose interests should prevail. Those interests supporting access, including the presumption in favor of access, are balanced against the interests asserted for denying access." …

The district court properly applied this balancing test. It explained that it applied the balancing test and concluded that Akoto's arguments did not outweigh the presumption in favor of public access. More specifically, the district court expressed that there were no compelling circumstances that could rebut the presumption here and that "[a]ccepting [Akoto's] arguments would essentially require the Court to seal every [HRO] when requested by a party." The district court did not misapply the law….

Reviewing the record as a whole, we also see no indication that the district court acted contrary to logic or facts in the record. Akoto does not argue that the district court relied on clearly erroneous facts. Rather, she appears to ask this court to reweigh her privacy interests and the alleged reputational and professional harm she has experienced as a result of the accessibility of these records. But "the role of an appellate court is not to weigh, reweigh, or inherently reweigh the evidence." …

The post No Sealing of Expired Harassment Restraining Order appeared first on Reason.com.

I have two articles just released in their final form.

One, with James Heilpern, examines how "subject to the jurisdiction" was used in legal texts in the United States through the adoption of the Fourteenth Amendment. Making use of treaties, statutes, congressional debates, and judicial opinions, the article considers whether that language, which was used in the Fourteenth Amendment's citizenship clause, had an established legal meaning that would have been known to the legal community in 1868. If so, what might that meaning be?

From the conclusion of that article:

The task of this Article is a narrow one. We do not investigate the specific intentions of the drafters of the Fourteenth Amendment or examine their specific purposes in including the Citizenship Clause. We simply ask to what degree did the drafters of that Clause use familiar legal terms and what would have been the ordinary meaning of those terms as used in a legal text. The evidence is overwhelming that the phrase "subject to the jurisdiction" would have had a natural and obvious meaning to mid-nineteenth century American lawyers. These were ordinary legal terms that regularly appeared in legal discourse.

Moreover, the evidence is overwhelming as well as to what the substantive content of that language would have been in 1866. In the legal language of the mid-nineteenth century, "subject to the jurisdiction" of the United States simply meant governed by the United States. That governing authority might have been exclusive or shared, and those subject to that governing authority might have owed a duty of allegiance or they might merely have owed a duty of obedience. Those governed by the United States might be subject to American jurisdiction on a more permanent basis or they might only be subject to that governing authority on a contingent and temporary basis. Those governed by the United States might only be subject to its authority for limited purposes or they might be governed by it more comprehensively. When lawyers wanted to restrict the scope of jurisdiction, they used appropriate modifiers to do so. Using the language of the Fourteenth Amendment to express any idea other than "within the governing authority" would have been creative to the point of absurdity.

That article is now available from the Harvard Journal of Law and Public Policy here.

The second examines Indiana's statutory intellectual diversity mandate, known as Senate Bill 202. The law requires that professors teaching in state universities in Indiana demonstrate, among other things, that their courses include an intellectually diverse set of materials in order to retain their jobs. It charges the board of regents to use the tenure process to enforce this requirement. As written, the statute poses a multitude of difficulties for academic freedom and the intellectual enterprise of university teaching.

From the article:

SB 202 might identify a real concern about American higher education, but the solution it offers is not only ineffective but problematic. SB 202 creates a vague set of tenure criteria that can easily be misused to target politically controversial professors. The result is unlikely to improve the quality of classroom teaching or genuinely foster a climate of free inquiry on university campuses, but it might lead professors to cater to the loudest cavilers in an effort to insulate themselves from capricious reprisals.

That article is based on the Addison C. Harris Lecture at the Maurer School of Law and is now available in the Indiana Law Journal here.

The post More on Birthright Citizenship and Intellectual Diversity Mandates appeared first on Reason.com.

… Quraishi worked as an independent contractor at the Clinic doing IT work. In 2017, the plaintiffs began having issues with Quraishi, which ultimately led to Hussain applying for a civil protection order against Quraishi, which the Court granted on October 12, 2018.

After that, Quraishi stopped harassing the plaintiffs, but in July of 2025, for reasons unknown to the plaintiffs, Quraishi began posting on Facebook repeatedly about them.

In the Facebook posts, he accused them of various crimes and fraudulent actions, including, among other claims, fraud and identity theft, Medicare and Medicaid fraud, and using a deceased doctor as their medical director.

As a result, on July 7, 2025, Hussain applied for a civil protection order against Quraishi, which the Court granted on July 21, 2025. On that same date, Garcia applied for a restraining order against Quraishi (they had briefly dated in 2015), which the Court granted on July 16, Quraishi was ultimately arrested for violating the restraining order.

Despite the entry of the civil protection order and the restraining order, Quraishi continued posting about the plaintiffs throughout July of 2025 and then from November of 2025 through April of 2026. These posts included more allegations of perjury, witchcraft, identify theft, Medicare and Medicaid fraud, theft of intellectual property, counterfeiting of documents, filing false statements to the police and the courts, and fraudulent billing.

The plaintiffs deny all of the allegations made by the plaintiff [presumably intended to say "defendant" -EV] in his Facebook posts….

For purposes of obtaining a prejudgment remedy, the plaintiffs do not have to establish that they will prevail, only that there is probable cause to sustain the validity of their claims. Under this standard, the court concludes on the evidence presented that there is probable cause to sustain the validity of the plaintiffs' claim against the defendant.

Quraishi's Facebook posts contain serious allegations against the plaintiffs, particularly given their professional roles in operating a primary care clinic. He accuses them of fraudulent billing, Medicare and Medicaid fraud, and countless other fraudulent actions. Quraishi's Facebook posts are detailed extensively in the plaintiffs' exhibits.

In addition to the allegations against the plaintiffs, many of Quraishi's Facebook posts contain inflammatory, threatening language directed at the plaintiffs. For example, Quraishi wrote on Facebook "Hussain, I'm not just coming for you … I'm going after your family line. And my not yet born children will continue if they must … In this situation I'm like Liam Neeson's character from the movie Taken … 'I have a very special set of skills.'" In another post regarding Hussain and Garcia, Quraishi wrote, "I would've gone full Liam Neeson on you[ ] … I'll let the 5 US Federal Agencies handle you and your whole coven."

In another of his Facebook posts, he wrote that Hussain "is a high level criminal in a medical masonic mafia and he should be placed into either (1) the original Alcatraz prison in San Francisco; (2) the new alligator Alcatraz in Florida." In another Facebook post, Quraishi wrote "the whole world is going to watch you … burn in the hottest inferno hell has provisioned." In yet another Facebook post, Quraishi wrote "a gay male nurse and smelly jew bribed a little piggie." In another Facebook post, Quraishi accuses the plaintiffs, as well as three Judges of the Rockville Superior Court of "racketeering."

Garcia testified that Quraishi has 822 followers on Facebook, and that his posts may have been seen by more people if any of his followers shared his posts with others.

Garcia also testified that Quraishi's Facebook posts have affected her and the Clinic. She testified that the staff is scared, and that she has to review Facebook to see Quraishi's state of mind before she goes to work. She testified that they are particularly vigilant at the Clinic, where they have cameras "all over," and the staff is monitoring who comes in. She testified that she has worked very hard to get where she is, and that it is upsetting to be accused of what Quraishi has accused her of in his Facebook posts. She believes that the posts have harmed her personal and professional reputation. Patients and family members have called the Clinic to ask if they have seen what Quraishi is posting about them….

The court concluded there was probable cause that plaintiffs will prevail on their claims for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and false light invasion of privacy, and, therefore granted a prejudgment remedy:

Based on the defendant's Facebook posts, there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiffs….

The plaintiffs shall be authorized to attach and/or garnish any or all of the following to the amount of $300,000.00.

1. To attach the defendant Mansoor Quraishi's interest in 2 Davenport Road, West Hartford, Connecticut; and
2. To attach and/or garnish such other assets, property or obligations held by or on behalf of the defendant Mansoor Quraishi as may be identified by defendant's disclosure pursuant to the plaintiffs' motion for disclosure of assets….

The post Pre-Judgment Attachment in Libel Cases appeared first on Reason.com.

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Late Tuesday evening, the Supreme Court granted Alabama's emergency motion to revise its legislative maps following Callais. The per curiam opinion offers a handy summary of Callais and expressly extends that doctrine to the vote dilution context. The merits analysis stretches one paragraph, but here I want to focus on a single critical sentence:

As to intentional vote dilution, the District Court did not heed the presumption of legislative good faith, see Alexander v. South Carolina State Conference of the NAACP, 602 U. S. 1, 10 (2024), because it interpreted the State's legal disagreement with the court's earlier remedial order as proof of discriminatory animus. Cf. Abbott v. Perez, 585 U. S. 579, 608–609 (2018).

When I read the Alabama district court's order, I had the same reaction: not following a court's order that was vacated cannot be used to demonstrate a discriminatory intent. The Supreme Court's decision to vacate the district court's order rendered that order null and void, as if it had never existed. The district court cannot then turn around and claim that the failure to follow its non-existent order is proof of animus. I meant to write on this point, but I didn't get a chance. (Thanks Judge Betsy.) Now is a good time.

I've written about inferior court supremacy, the notion that a single district court can settle the meaning of the Constitution. CASA v. Trump went a long way to rebutting this presumption by firmly establishing the principle of Supreme Court judicial supremacy. I have problems with this aspect of CASA, but that is now the supreme law of the land. Now, the Supreme Court's emergency docket order in Allen v. Milligan further clarifies how unsuperior the inferior courts are.

Litigants, including state governments, should not violate a binding court order. Doing so would lead to contempt of court, which did not happen here. Instead, the district court ordered Alabama to adopt a new map. Alabama chose to adopt a map that the state found consistent with Supreme Court precedent. The District Court disagreed. The state had the right to adopt that new map, knowing it would be challenged in court, and the Supreme Court would ultimately resolve the matter on its mandatory jurisdiction docket. This is more-or-less what Justice Alito discussed on the cited pages of Abbott v. Perez.

There was no defiance of any binding court order. However, Justice Sotomayor's dissent, repeatedly charges the state with defying and flouting the district court's order:

"Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court"

"It also corrodes the rule of law by rewarding Alabama's gamesmanship and outright defiance of court orders."

"Second, the Court should not have rewarded Alabama's defiance of court orders and blatant gamesmanship throughout this litigation."

"Alabama's hands, however, are far from clean. Instead, it defied the District Court's order in these cases even after this Court affirmed it. . . ."

"First, Alabama intentionally chose to flout a preliminary injunction that this Court affirmed in Allen."

Justice Sotomayor explains that Alabama hoped the Supreme Court would agree with the state on appeal:

Of course, Alabama had every right to raise its "legal disagreement," ante, at 3, with the District Court's original preliminary injunction through the appellate process orotherwise. The course of action the State chose here, however, was not the proper way of doing so. Had Alabama complied with the preliminary injunction and drawn a map with a second opportunity district, it could have relitigated the merits in the ordinary course: first at a trial on the merits, and then on appeal. At either stage, it could have raised the arguments that the litigants in Callais raised and prevailed on, or advanced challenges to the District Court's remedial order. Instead, Alabama willfully drew a map that flouted the District Court's preliminary injunction and hoped that this Court would eventually see things its way. After today, it is hard to call Alabama's cynical gambit anything other than a success, and the Court's rewarding of Alabama's behavior anything other than a blow to the rule of law.

Sotomayor also quotes from the Speaker of the Alabama House:

The record is bereft of evidence suggesting that Alabama took seriously this Court's finding of discriminatory vote dilution in Allen. Speaker of the Alabama House of Representatives Nathaniel Ledbetter put it bluntly: "'If you think about where we were, the Supreme Court ruling [in Allen] was five to four. So there's just one judge that needed to see something different.'"

This action is only improper if you accept the notion that district courts can settle these constitutional cases. But if you agree with CASA that the Supreme Court is supreme, then Alabama's actions are the only way to test the validity of a new maps. And litigants are well within their rights to hope a 5-4 decision at one stage of the litigation goes 5-4 the other way. Dobbs got to the Supreme Court because Mississippi wanted to test Roe. Callais got to the Supreme Court because Louisiana wanted to test Gingles. And Allen made several trips to the Supreme Court for similar reasons. Justice Sotomayor is wrong on this point.

The post The Supreme Court Reverses Inferior Court Supremacy In Alabama appeared first on Reason.com.

I continue to find one small detail of the Slush Fund affair (Slushfundgate?) of particular interest.

As you may recall, our President's suit against the IRS was voluntarily dismissed on May 16.

Two days later, on May 18, the parties executed a "Settlement Agreement." In that Agreement, the DOJ* agrees to issue "a formal apology" to our President, and "the Attorney General of the United States agrees to create the [$1.776 billion] Anti-Weaponization Fund, subject to the terms and conditions described herein."

*The "Settlement Agreement" was signed "for the United States" by Associate Attorney General Stanley Woodward. The DOJ was, presumably, acting in its capacity as counsel to the defendant (I.R.S.).

Daniel Z. Epstein, counsel to the Plaintiffs (our President, his two sons, and the Trump Organization), is the other signatory.

In exchange for all that (the apology and the Fund), Trump and the other Plaintiffs agree to:

RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE Defendants [the I.R.S.] and the United States from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, including injunctive, monetary, damages, tax payments, debt relief, costs, attorney's fees, expenses, and/or interest, that - as of the Effective Date - have been or could have been asserted by Plaintiffs in the Case or the Pending Agency Claims, by reason of, with respect to, in connection with, or which arise out of, matters in the Case or the Pending Agency Claims. [Emphasis added]

Curious, no?  On several grounds.

First: Trump releases all his claims against the IRS? That doesn't sound like Trump.  Given that the whole undertaking is patently a sham - Trump "settling" with Trump -- why would Trump give away anything at all? Just to make it look like there's an actual "exchange" taking place?

And while it might look as though Trump is giving the "other side" something of value, he isn't.  Two days before the "Settlement Agreement" was executed, his claim was dismissed, at his request, with prejudice. So when he sits down to "negotiate" his "Settlement Agreement" on May 18th, sitting across the table from his reflection in the mirror, he's already barred from ever raising those claims again.  So his "waiver" is entirely redundant and meaningless.

And notice: the "Settlement Agreement" doesn't make any reference at all to the dismissal of Trump's claims. That's also a little odd. Ordinarily, when parties agree to settle ongoing litigation, their Settlement Agreement will say something like:

"Plaintiff promises to voluntarily dismiss his claims against the Defendant, in exhange for the Defendant's promise to [do something, or pay something]."

The withdrawal of Plaintiff's claim is a big part of the consideration flowing between the parties, which is what makes the Settlement Agreement an enforceable contract; the parties are exchanging things of value.

Not so, here. Trump can't promise to drop his claims against the IRS, because he's already dropped them.

And notice: in the "Settlement Agreement," Trump waives any claims he might have against the IRS. It does not say that the IRS waives any claims it may have against Trump.

But the very next day (May 19th), this curious document appeared on the DOJ website. It simply states, with absolutely no additional explanation, that

The United States RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs from, and is hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, including injunctive, monetary, damages, tax payments, debt relief, costs, attorney's fees, expenses, and/or interest, that - as of the Effective Date - have been or could have been asserted by the Defendants (i.e., the IRS) against any of the Plaintiffs or related or affiliated individuals . . . [Emphasis added].

This document - untitled, and with nothing at all of substance other than this waiver - was signed by (a presumably shame-faced and embarrassed) Acting Attorney General Todd Blanche.

Did Blanche just forget to have this clause included in the "Settlement Agreement"?! There's no additional consideration coming from the Plaintiffs in exchange for this waiver of the potential United States claims; so its either just a little gift ("From the People of the United States, in Recognition of Your Brilliant Leadership!!!!"), or it was supposed to be included in the Settlement Agreement but was inexplicably left out.

And that would constitute incompetence of truly monumental proportions. Did the Acting Attorney General not read the (two-page!) Settlement Agreement between the sitting President (for whom he works) and the IRS? Or he did read it over, and fail to notice that the immunity he thought was going to be in there for the President was missing? Is it really possible?

Sure looks that way, doesn't it?

Here's how I think it all went down.  During the negotiation sessions over the "Settlement Agreement," where the hard bargaining between Trump and Trump was taking place, Trump turned to Todd Blanche, who was there as counsel to the IRS and to the President, and said:

"Draft up a Settlement Agreement - and don't forget to put in that waiver!!"

Blanche turns to his deputy, Stanley Woodward - remember, it was Woodward who actually signed the "Settlement Agreement" on behalf of the United States - and said:

"Woodward, draft up the Settlement Agreement. And don't forget to put in that waiver!!"

And Woodward thinks to himself:

"What waiver?"

He figures they must be referring to a waiver by Trump for all claims that Trump may have against the IRS. After all, one would expect a Settlement Agreement to contain a waiver running in that direction, one where Plaintiffs promise to drop their claims and not to sue the Defendants as part of the overall settlementy deal. He inserts such a clause into the Settlement Agreement.

Astonishingly, nobody notices the omission until the day after the Settlement Agreement is signed.

Keystone Kops lawyering at its best, or worst.

Today's NY Times happens to have an article about the exodus of lawyers from the federal government. ["Trump Administration Sees Striking Exodus of Legal Talent"] DOJ has lost 21 percent of its lawyers in a little over a year.  AbovetheLaw.com has been reporting on this for a while, and the evidence is indeed starting to accumulate that the quality of lawyering out on the front lines is declining.

Not to worry, though.  Our President reassures us:

The New York Times wrote a story today entitled, 'Trump Administration Sees Striking Exodus of Legal Talent,' as though that's a bad thing, when actually, it's very good. The people that are leaving are Radical Left Deep State Lunatics, who are destroying our Country, and Weaponizing Government. Many of them didn't leave, but were fired! The Failing New York Times writes this, but makes it sound like it's a terrible thing when actually, it's just the opposite. We want people that will, MAKE AMERICA GREAT AGAIN, not people that are trying to destroy our Country, that were put in by Obama and Biden and, in many cases, they shouldn't have been representing the U.S.A. in the first place."

The post Where Have All the Good Lawyers Gone? appeared first on Reason.com.

For past Free Speech Unmuted videos, see:

• 'Defamacast' and More: How American Defamation Law Works
• Speech, Not "Conduct": Supreme Court Rules on Conversion Talk Therapy
• Equal Time, Stephen Colbert, and the Future of Political Broadcasting
• Student Speech, Threats, and the First Amendment
• Can Journalists Be Charged for Involvement in Protests? The Don Lemon Dilemma
• 2025: The Year In Free Speech
• Does the First Amendment Protect Supposedly "Addictive" Algorithms?
• Defamation Law in the Age of AI with Lyrissa Lidsky
• Free Speech and the Future of Legal Education
• From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Eric Heinze
• Kimmel, the FCC, and the Government's Power Over Broadcast Speech
• A Conversation with FIRE's Greg Lukianoff
• A Burning First Amendment Issue: President Trump's Executive Order on Flag Desecration
• Free Speech and Doxing
• The Supreme Court Rules on Protecting Kids from Sexually Themed Speech Online
• Free Speech, Public School Students, and "There Are Only Two Genders"
• Can AI Companies Be Sued for What AI Says?
• Harvard v. Trump: Free Speech and Government Grants
• Trump's War on Big Law
• Can Non-Citizens Be Deported For Their Speech?
• Freedom of the Press, with Floyd Abrams
• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

The post Free Speech Unmuted: The First Amendment and Privacy Rights appeared first on Reason.com.

From yesterday's decision (which strikes me as correct) in Accountability Now USA v. Griess, by Judge Randolph Moss (D.D.C.):

Plaintiff, an unincorporated association that maintains a 24/7 demonstration calling for the impeachment and removal of President Donald Trump on National Park Service ("NPS") land, moves for an emergency order temporarily restraining the Superintendent of the National Mall and Memorial Parks Kevin Griess and the Secretary of the Interior Doug Burgum or their delegees "from taking enforcement action against them because of their display of a flag with the legend '8647.'" For the reasons that follow, the Court will grant Plaintiff's motion….

The parties' disagreement … turns on whether Plaintiff's display of the "8647" flag constitutes protected speech, as Plaintiff asserts, or a "true threat" to the life or safety of the President (or an incitement to violence), as Defendants maintain. At oral argument, both sides agreed that context is dispositive. Not every use of the slang phrase "86" constitutes a threat of violence; to the contrary, it is most often used to mean that an item is no longer available or that someone or something should be removed, ejected, or thrown out. But it can, in some contexts, mean "to kill." …

"True threats of violence, everyone agrees, lie outside the bounds of the First Amendment's protection." "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." "The 'true' in that term distinguishes what is at issue from jests, 'hyperbole,' or other statements that when taken in context do not convey a real possibility that violence will follow." …

The Court starts with the premise that the word "86" is a slang term with no single meaning. According to Merriam-Webster, "Eighty-six is slang meaning 'to throw out,' 'to get rid of,' or 'to refuse service to.'" The phrase "comes from 1930s soda-counter slang meaning that an item was sold out[,]" and may have been used because it rhymes with "nix." It was first used as a noun to refer "to an item … that had been sold out," but by the 1950s, the term was used as a verb, at first meaning " 'to refuse to serve a customer,' … later meaning " 'to get rid of; to throw out,' " and still later coming to mean " 'shut out' or 'rejected.'" Merriam-Webster further notes that a recent extension of these meanings has included "'to kill,'" although the dictionary declines to endorse that meaning "due to its relative recency and sparseness of use." According to Merriam-Webster, "[t]he most common meaning of eighty-six encountered today is the one that is closer to its service industry roots." …

Plaintiff represents that its display of the flag was "not in any way a threat against the President" but, rather, was part of months-long demonstrations demanding "the impeachment and removal of President Trump." Although Defendants offer no evidence or explanation regarding how (and why) the NPS understood Plaintiff's actual use of the term, the Deputy Director of the Secret Service attests that he generally "regard[s] the statement '86-47' as a potential call for acts of violence directed at the President of the United States" and that he "understand[s] '86' to represent a euphemism for acts of physical violence." … Although the Court recognizes the importance and difficulty of the mission of the Secret Service, the First Amendment does not permit the government to censor political speech, which no reasonable observer would view, in context, as actually conveying a threat of violence, merely because the speaker uses a phrase that, in addition to other more common meanings, has been used to refer to an act of violence.

The question whether "8647" constitutes a true threat cannot be resolved in the abstract, without consideration of context, and, here, the relevant context makes clear that no reasonable observer could have viewed Plaintiff's display of the flag as a threat to the President's life or physical safety.

To start, the flag itself contains no symbols of violence; it is red, white, and blue, and is simply adorned with white stars. It contains no knives, skulls, nooses, or other threatening symbols. Even more to the point, the flag was displayed outside the courthouse, as part of an ongoing demonstration seeking President Trump's impeachment and removal from office. In a video submitted by Plaintiff, the flag can be seen hanging from one side of Plaintiff's tent, surrounded by not one, but four signs that read "IMPEACH. CONVICT. REMOVE." Yet another sign merely reads: "IMPEACH." In short, the surrounding signage urged Congress "to throw out" the President. Nor is there any evidence that Plaintiff or the volunteers who staffed the demonstration engaged in any threatening speech or conduct….

Under these circumstances, it is difficult to fathom how the NPS (or the Secret Service) could have concluded that a reasonable observer would view the flag as a true threat. The term "86" is used far more often to mean "throw out" than "kill," and it appeared at a demonstration that was focused, of all things, on the constitutional impeachment and "removal" of the President….

At oral argument, Defendants' counsel conceded that (1) the inquiry of whether particular speech is a true threat is context-dependent; (2) there are circumstances in which the term "8647" does not represent a true threat to the President; and (3) the Defendants are "not going to prosecute or go after everybody with an 8647 flag." But when asked, how, then, did Defendants conclude that Plaintiff's specific invocation of "8647" constituted a true threat, Defendants' counsel retreated, repeatedly asserting that the use of the term in the context of unprecedented and recent assassination attempts against the President constitutes a true threat. When asked whether the agency engaged in any case-specific fact-finding or undertook any analysis of whether Plaintiff's usage of 8647 in the context of its ongoing demonstration violated 18 U.S.C. § 871 [the statute banning threats against the President -EV], Defendants' counsel demurred, noting that he either did not know or that there was nothing in the record before the Court….

[T]he Court invited Defendants to supplement the record with any evidence or material explaining the NPS's thinking. Defendants failed to offer any analysis or consideration of specific context surrounding Plaintiff's display of the flag. Instead, Defendants simply repeated Deputy Director of the Secret Service Matthew Quinn's averment that he regards "the statement '86-47' as a potential call for acts of violence directed at the President," and noted that "a shooting occurred in the vicinity of the White House" on May 24, 2026, and that this "potential assassination attempt" was a "significant intervening event from when [the Secret Service] first encountered the individual holding [the] flag"; that "the Secret Service shared information with the U.S. Department of the Interior about its ongoing investigation relating to the individual holding [the] flag"; that the Secret Service has investigated or is currently investigating "over 1,300 instances of individuals using '86-47'" as a threat; that "[m]ost '86-47' investigations by the Secret Service involve online threats" and that the use of the "flag near the White House is a novel event"; and, finally, that "[t]he Secret Service does not construe '86-47' to mean impeachment."

Strikingly, only two or three of these assertions have any plausible nexus to the specific context of Plaintiff's display of the flag, and none of those assertions amounts to anything. The first relevant assertion merely notes that the Secret Service is conducting an ongoing investigation of the volunteer who spoke with the officers on May 12. But the government says nothing about whether that investigation has revealed any evidence to support a true threat claim, and an investigation is just an investigation.

The second and third assertions merely note that Plaintiff was displaying the flag in the same city in which the White House is located—albeit almost two miles away—and that a shooting occurred on the street near the White House on May 24. It sweeps far too broadly, however, to suggest that anyone displaying an "8647" flag in Washington, D.C. after the May 24 shooting has made a true threat to the President's life or safety.

The Court does not doubt that political violence is on the rise and that it poses a grave threat not just to the targets of the threats but to the country as a whole. But the enormity of that problem does not change the meaning of Plaintiff's speech, which by any reasonable measure merely advocated for the President's impeachment and removal from office—that is, "to throw [him] out." …

The court also concluded that the speech couldn't be plausibly be interpreted as falling within the First Amendment exception for incitement to violence (a separate exception from the one for threats):

The record contains no evidence that a reasonable observer would have viewed the flag as an incitement to imminent violence or that Plaintiff intended to incite political violence. Although Deputy Director Quinn attests that he believes that the term 8647 "as it is understood today, can incite violence by others," Brandenburg [the case defining the incitement standard -EV] does not refer to words that "can incite" imminent lawlessness—it refers to words that are "likely to incite"—and Defendants do not even suggest that Plaintiff's flag comes close to satisfying that demanding standard….

Arthur B. Spitzer, Aditi Shah, and Laura K. Follansbee (ACLU DC) represent plaintiff. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post Court Issues Temporary Restraining Order Protecting Group Flying "8647" Flag appeared first on Reason.com.

From a draft by Stanford law professor Julian Nyarko and others:

We conducted a blinded evaluation of short-answer tutoring in contracts courses with sixteen U.S. law professors. Participants created 40 representative questions, wrote answers, and judged 2,918 anonymized comparisons between human and LLM responses. Professors rated LLMs far higher than their peers (average win rate = 75.33%), with models performing similarly to the best instructor. LLM responses were also rarely flagged as harmful (3.53%, vs 12.06% for professors). Preferences for LLM answers were consistent across evaluators and reflected shared professional standards….

Sixteen contracts professors from fourteen U.S. law schools—who all use the same casebook to teach the material—authored questions representative of those asked during office hours. From this pool we curated 40 representative questions spanning four instructional categories (Recall: Case or Code, Recall: Doctrine, Hypotheticals, Policy).

Recall questions—whether relating to a case, code or doctrine—tend to be amenable to answers which can be evaluated against a ground truth, and where argumentative strength is of little importance. In contrast, hypotheticals present a short set of facts and ask how the law should be applied. Together with policy questions, which often center on legal or policy design under heterogeneous preferences, providing a strong answer in this category often relies on displaying careful reasoning, weighing competing arguments and other latent, professional standards of quality—even if the relevant doctrine is now settled.

In a second step, each professor wrote short answers to a subset of the 40 questions. … In a third step, we conducted blinded, forced-choice comparisons in which professors judged anonymized pairs of answers written either by their colleagues or by two LLMs. Among the different model families, we opted for Google's models because at the time, Google made explicit efforts to optimize their models for the educational context. Consequently, we included a stock version of Gemini 2.5 Pro and a retrieval-augmented NotebookLM with access to the casebook. Preference rankings have been shown to be a particularly effective method in ranking unstructured, open text responses, thus yielding advantages over more common, rubric-based evaluations especially where quality is a more elusive concept…

To probe whether any LLM advantage might be driven by surface-level writing style rather than substantive content, we additionally engineered a set of lexico-syntactic features—answer length, structural organization, reasoning nuance, legal anchors, confidence tone, clarity, and pedagogical support—and tested how much of the preference pattern they could explain. Each professor completed approximately 150–200 pairwise evaluations, selected the better answer, and could flag any answer as pedagogically "harmful" {[i.e.,] likely to mislead or hinder learning}.

We present four main findings. First, LLMs meet—and often exceed—the professional standard as defined by expert preference. Gemini 2.5 Pro outperformed all but one instructor in head-to-head comparisons (average win rate against all instructors = 75.92%), though the difference between Gemini and the better-ranked instructor was not statistically significant. NotebookLM, by contrast, outperformed every human instructor, with one tie (average win rate = 74.75%).

Second, the LLM advantage was similar across all category questions.

Third, harmfulness rates for LLMs were low (Gemini 3.41%, NotebookLM 3.64%), compared to the wider dispersion among professors (1.00–39.75%), underscoring that the risk of pedagogically problematic responses is comparable to that of the best human instructors. When evaluating peer-written answers, each professor on average preferred LLM responses over responses generated by human instructors, suggesting that model outputs were not merely appealing to a particular subset of evaluators.

Fourth, the engineered textual features explain only part of the LLM advantage: in calibration analyses, observed LLM win rates systematically exceed the win rates predicted from lexico-syntactic differences alone, indicating that the preference for LLM answers is not reducible to length, clarity, or other stylistic markers.

The post Eventually, the Steam Drill Always Wins: "Law Professors Prefer AI Over Peer Answers" appeared first on Reason.com.

Below is my list of speaking engagements for the summer of 2026. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.

I normally post lists of speaking engagements only during the academic year. But this summer, I have an unusually large number of them. So I decided to do a post.

I  may add additional events and information to this post, as they are scheduled, and update details on existing ones. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business!

June 12, 12-1 PM, Southwest Florida Federalist Society, Lawyers Division Chapter, Bruno's (restaurant), 2149 First St., Fort Myers, FL: "Immigration is Not Invasion." Note: I accidentally listed the wrong date for this event (June 10). June 12 is the correct date.

June 17, 3-4 PM, Housing Working Group, American Institute for Economic Research (online event): "The Constitutional Case Against Exclusionary Zoning." This event is, I believe, limited to members of the AIER housing working group, and possibly other AIER affiliates.

June 17, 6-9 PM, Institute for Humane Studies, National Press Club, Washington, DC: "IEEPA and the Limits of Executive Power." This event features a live podcast recording, followed by a Q&A session, and a reception. Registration and other information available here.

July 7, 6-7:30 PM, Annual Supreme Court Review, National Constitution Center, Philadelphia, PA: "Tariffs and the Limits of Executive Power" (tentative title). Panel on "The Supreme Court and Executive Power."

July 15, time TBA, Brennan Center for Justice, New York University, NYU DC 1307 L Street NW, Washington, DC: "Assessing the Tariff Decision" (tentative title), conference on "Congress and the Court.

The post Upcoming Speaking Engagements - Summer 2026 [Updated] appeared first on Reason.com.

The Roberts Court seems to be methodically scaling back the excesses of the Burger Courts. But one area that has not yet been revisited is the death penalty. Despite the Court imposing "history and tradition" tests for other aspects of the Bill of Rights, the Eighth Amendment still follows the "evolving standards of decency" standard. This sort of living constitutionalism is an anathema to the notion of a written Constitution. One of the most egregious manifestations of this standard was Atkins v. Virginia. This standard was egregiously wrong and has proven impossible to implement. And murderers with purported intellectual disabilities cannot plausibly rely on this or any other Supreme Court precedent. Yet Atkins remains. Just last month the Court DIG'd Hamm v. Smith, I suspect, because Justices Kavanaugh and Barrett didn't want to decide it. I suspect there will be leaks from the Court to make sense of this flip.

The Court needs to start over on the Eighth Amendment. Or in today's lingo, they need a reboot. My new essay in Civitas Outlook is titled, "The Roberts Court Needs To Reboot The Machinery Of Death."

Here is the introduction:

In the span of one year, the Burger Court created a constitutional contradiction. Furman v. Georgia (1972) proclaimed that the Eighth Amendment prohibits states from terminating the life of murderers. One year later, Roe v. Wade (1973) ruled that the Fourteenth Amendment prohibits states from protecting the life of the unborn. Both rulings represented the heights of judicial hubris. The Justices, and not the elected branches, would decide who could live and who could die. Neither ruling was even remotely plausible as an originalist matter. Both rulings led to chaos and uncertainty in the law.

While the Supreme Court would not revisit Roe for nearly two decades, the Court returned to the death penalty four years later. In the face of a popular backlash, the Court in Gregg v. Georgia (1976) allowed the states to resume executions. But this decision still allowed the judiciary to superintend capital punishment based on "evolving standards of decency." This sort of living constitutionalism is an anathema to the notion of a written Constitution. But worse still, this standard gives liberal elites who define "decency" the power to define our justice system. This regrettable standard persists to the present. Just last week, the Supreme Court declined to resolve a capital case where mental health professionals insisted that a cold-blooded killer could not be executed because one of his five IQ scores may have been too low. The Court owes the victims of brutal murders and the Constitution far better. The machinery of death needs a reboot.

And the conclusion:

Given the ham-handed dismissal in Hamm, state Attorneys should go on offense. They should ask the Court to reverse Gregg, Atkins, and all related cases in every petition and cross-petition. The states need a power saw to remove this doctrine root and branch. The Court should once and for all eliminate the evolving standards test. The Eighth Amendment should be interpreted in an originalist fashion like the rest of the Bill of Rights. IQ tests did not exist in 1787, yet our framers somehow managed to execute people. States are free to impose greater restrictions on capital punishment or ban it altogether. But this issue is not for the judiciary to decide. Gregg v. Georgia should meet the same fate as other discarded Burger Court precedents like Roe, Bakke, Chevron, Lemon, and the list goes on.

Two decades after Gregg, Justice Harry Blackmun concluded that all forms of capital punishment were unconstitutional. Blackmun, the author of Roe v. Wade, may have been President Nixon's greatest mistake. Watergate was over in a few years, but Blackmun's judicial impact stretched two decades. In Callins v. Collins (1994), Blackmun declared, "From this day forward, I no longer shall tinker with the machinery of death." Blackmun got it exactly backwards. Judicial abolition of the death penalty was the problem, not the solution. The way for judges to stop tinkering with the machinery of death is to stop tinkering with the machinery of death. The Roberts Court should reboot the machinery of death, and get the judiciary out of this interminable quagmire.

The entire Eighth Amendment jurisprudence has been an abject failure at every level. In my mind, the most perverse aspect of the abolition movement is that so much effort is aimed at helping the most gruesome murderers, even as defendants who committed far less serious offenses with a greater chance of success are severely underrepresented. States are free to abolish capital punishment, and the federal courts should exit this thicket.

The post New in Civitas: "The Roberts Court Needs To Reboot The Machinery Of Death" appeared first on Reason.com.

In December 2023, JFJ posted on its social media pages, including on Facebook and Instagram, a blurred photograph of an Israeli soldier wearing a yarmulke. Above the photograph was the following text attributed to "Nachman": "'Thank you for leaving at my home a copy of the New Testament. I look forward to reading it when I return home from the war'—Nachman, a young Haredi soldier." {Haredim are sometimes referred to as 'ultra-Orthodox,' although this term may be considered objectionable."} {Some of the posts went on to state: "One of the ways that God provides for His people is through the generosity of other people around the World, like you. Because of your support, we were able to give a copy of the New Testament to Nachman and more than 1,000 Israelis in 2023!"}

Amitay filed a complaint against JFJ, attaching screenshots of JFJ's posts. He alleged that the photographs posted by JFJ were photographs of him, that they had been posted without his consent, and that defendant had defamed him …. Amitay alleged that he was a Jewish Orthodox rabbi who had "dedicated his life to the study of the Jewish Orthodox faith and committed many years studying to become a rabbi," recounting about a dozen years of study.

He had finally gotten a job teaching at an institution in Israel where he had worked for two years, a position he described as his "dream job." His job "suddenly came to an end as he was terminated … due to an egregious act by JFJ," namely, "upload[ing] photos of Amitay on [its] social media pages." He alleged: "JFJ posted a picture of [him] on their website giving the appearance that he supports JFJ's cause. Not only was a photo uploaded, but the post included a caption also falsely expressing that [he] supported JFJ's religious views." Amitay alleged that he is "an Orthodox Jew, a more traditional branch of Judaism, which [has] starkly different views from JFJ." He "never before associated with JFJ and disagrees with their religious views." …

Amitay alleged that when his employer "saw the pictures posted online," they "expressly stated that his termination was due to the posts online of him supporting JFJ, and that they could not condone or be associated with someone involved with JFJ or their views." Amitay alleged that the posts were false because Amitay "has no affiliation with [JFJ] … and disagrees with [JFJ's] religious views." …

Amitay also submitted third party declarations. Chaim Chadad, who described himself as "a friend and acquaintance," declared: "I saw the picture and it seems that [Amitay] writes there in favor of Christianity for a non-profit organization named Jews for Jesus." Another friend of Amitay, David Menachem Mundel Shaher, declared: "When I saw the picture of [Amitay] with a caption to the effect that he believed in a false god, I was shocked, and it is impossible to express the extent of my shock." A rabbi in the Israeli army declared: "I saw a picture of Ariel Amitay in the [social] media, and I was shocked that an observant Jew would write in support of Christianity for all to see…. This is contrary to his role as a religious Jew …." …

The appellate court held that the case could go forward. Some excerpts:

JFJ's second argument is that the posts "do not reference Amitay … by clear implication" because JFJ "blurred [his] face;" in other words, Amitay fails to sufficiently allege that the posts are of and concerning him. We disagree. In order to satisfy the "of and concerning" requirement, "the plaintiff must effectively plead that the statement at issue either expressly mentions him or refers to him by reasonable implication." Here, as pleaded, the quote in the posts can be reasonably understood to refer to the person in the juxtaposed photograph, and Amitay has sufficiently alleged that he is the person in the photograph….

JFJ contends that "libel per quod requires plaintiff to plead and prove that the publisher intended the words to impute wrongdoing to plaintiff[,]" citing Palm Springs Tennis Club v. Rangel (Cal. App. 1999). However, we decline to impose an intent requirement, which is contrary to "the great weight of authority" including our own prior decision. (See White v. Valenta (Cal. App. 1965) [requiring the plaintiff to prove the defendant intended the defamatory meaning "is contrary to other cases [citations] and the great weight of authority"]; Carl v. McDougall (Cal. 1919) ["If the words were slanderous, the intention with which they were used is immaterial …"].) …

Amitay has presented admissible evidence that JFJ made statements to third persons who reasonably understood the statements to be about Amitay. [T]he reasonable inference from [witnesses'] statements is that each of these individuals saw the picture of Amitay in one of JFJ's posts, recognized Amitay in the picture, and attributed to Amitay the words quoted ….

Second, Amitay has presented admissible evidence that others understood the posts to have a defamatory meaning, namely, that Amitay was supporting JFJ or its faith. (See Taus v. Loftus (Cal. 2007) ["The tort of defamation 'involves (a) a publication that is … (c) defamatory ….' [Citation.]"]; Civ. Code, § 45 ["Libel is a … publication … which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation"].)

Chadad declared: "[I]t seems that [Amitay] writes there in favor of Christianity for a non-profit organization named Jews for Jesus. I … was surprised that an educator would speak against Judaism …. This is unacceptable …. This caused me to distance myself from him for a period …." Rabbi Eichel stated: "I saw a picture of Ariel Amitay in the [social] media, and I was shocked that an observant Jew would write in support of Christianity for all to see…. This is contrary to his role as a religious Jew, and it is testimony to his mental instability." Shaher declared that he "saw the picture of Ariel with a caption to the effect that he believed in a false god" and "there is no place in the community for such a person or for his children." A reasonable inference is that Shaher understood the posts to mean that Amitay had expressed support for the evangelistic views of JFJ….

JFJ contends for the first time on appeal that "deciding whether Jews for Jesus harmed Amitay's reputation and standing would require the factfinder to improperly entangle itself in the tenets of Orthodox Judaism." … We conclude that JFJ waived this contention for purposes of its anti-SLAPP motion. Even if we considered JFJ's untimely argument, the argument is not persuasive….

The post Suggestion That Rabbi Endorses Jews for Jesus May Be Defamatory appeared first on Reason.com.

From a May 5 decision by the Ohio Court of Appeals in City of Nelsonville v. Nguyen, decided by Judge Michael Hess, joined by Judges Jason Smith and Kristy Wilkin:

The State of Ohio, City of Nelsonville appeals the judgment rendered in this criminal case involving an offense of disturbing a lawful meeting. The State contends that the trial court erred when it added the element of "substantial" to the offense of disturbing a lawful meeting under R.C. 2917.12(A)(1) to its jury instructions….

The State presented witness testimony from the Nelsonville City Council President, Gregg Clement, that the Nelsonville City Council held a regular meeting on April 14, 2025 at which two new council members were to be sworn in following the roll call. However, after roll call and before the swearing in, [former City Council President] Nguyen stepped forward and began speaking.

Clement called Nguyen to order and instructed her that it was not the appropriate time to speak and that she could make comments during the citizens' comment period. Nguyen continued to speak, and Clement called her to order a second time and again instructed her that she could speak under the citizens' comment period. Nguyen continued to speak and Police Chief Devon Tolliver, who was providing security for the meeting, stepped in and tried to get Nguyen to stop speaking, but she continued so Chief Tolliver removed her from the council meeting.

Clement called a recess of the meeting for approximately 10 to 15 minutes to allow everyone to regain composure. Following the recess, the meeting was resumed, there were no further interruptions, council business was conducted, and the meeting concluded. Clement testified that he believed that Nguyen had the misconception that she was the Nelsonville City Council President and could speak anytime during the meeting. However, because Nguyen had resigned from council several weeks earlier, Clement understood that Nguyen was no longer a member of council.

Nguyen testified that she believed that she was the city council president during the April 14, 2025 meeting and had the right to speak when she did without waiting until the citizens' comment period. Nguyen testified that it was her intent to speak for two minutes. A video recording of the meeting was played for the jury. The video shows Nguyen speaking and arguing with council president and the police chief continuously for approximately three and one-half minutes. Nguyen continues to argue loudly with law enforcement off camera as she is removed from the meeting, such that Clement called a recess for approximately 10 to 15 minutes….

Nguyen was charged with a violation of Ohio Rev. Code 2917.12(A)(1):

(A) No person, with purpose to prevent or disrupt a lawful meeting, procession, or gathering, shall do either of the following:

(1) Do any act which obstructs or interferes with the due conduct of such meeting, procession, or gathering ….

The question was whether a "substantiality" element, which wasn't included in the statutory text, was nonetheless required by Ohio law, and the court said no:

[An earlier] case, State v. Schwing (Ohio 1975), involved the conviction of Schwing under R.C. 3761.11, which stated, "No person shall willfully interrupt or disturb a lawful assemblage of persons," after he entered a meeting room at a public university where speakers were discussing proposed changes to the Ohio Criminal Code. Schwing shouted profanities and physically restrained a municipal court judge in attendance. The Court recognized that R.C. 3761.11 was an attempt to discourage deprivation of the right to assemble…. The Court found that audience activities of heckling and booing maybe be impolite but nevertheless advance the goals of the First Amendment.

The First Amendment contemplates a debate of important public issues; its protection can hardly be narrowed to the meeting at which the audience must passively listen to a single point of view. The First Amendment does not merely insure a marketplace of ideas in which there is but one seller.

The Court found that R.C. 3761.11 made no distinction between constitutionally protected interruptions of a lawful assemblage and interruptions which substantially impinge on the right of assembly. The Court held that the trial court's charge to the jury should have narrowed the scope of R.C. 3761.11 to willful disturbances that cause a lawful assemblage "to terminate in an untimely manner" or those which "substantially impair the conduct of the assemblage."

Since R.C. 3761.11 was repealed and replaced by R.C. 2917.12, the Supreme Court of Ohio has not considered the constitutionality of R.C. 2917.12…. However, other Ohio courts have. In State v. Brand (Ohio App. 1981), Brand was shouting during an event held on Fountain Square in Cincinnati where First Lady Rosalyn Carter was speaking…. The appellate court held that the trial court erred when it did not give limiting jury instructions that the interference must be "substantial" as defined by the Court in Schwing.

In State v. Wolf (Ohio App. 1996), Wolf was convicted of disturbing a lawful meeting in violation of R.C. 2917.12(A)(1) after he attended a local board of health meeting and attempted to sit at the board table and make statements about another attendee…. The appellate court [held]:

R.C. 2917.12(A)(1) does not contain the term "substantial," and therefore it was not necessary for the trial court to instruct the jury on the definition of the term or on any limitation of the statute in relation to the term….

In State v. Zagger (Ohio App. 1981), Zagger was convicted of disturbing a lawful meeting under R.C. 2917.12 for a "pie in the face" attack on a speaker at a public high school…. The appellate court … found that Schwing was only applicable to the repealed R.C. 3761.11. Zagger was charged under was R.C. 2917.12 which the court found was "not identical to its predecessor. In addition, it so clearly encompasses the corrective principle of Schwing, that its constitutionality without a limiting instruction is patent."

For R.C. § 2917.12(A) contains a constricting and defining preface which attaches to all the prohibited acts which follow. That preface limits the statute's prohibitions to acts whose purpose is "to prevent or disturb a lawful meeting, procession, or gathering …." So defined the perimeter of the unlawful conduct confines only unprotected acts. Thus, R.C. § 2917.12 did not require a delineating instruction to save its constitutionality.

In Columbus v. Doyle (Ohio App. 2002), Doyle was convicted of disturbing a lawful meeting in violation of a city ordinance identical to R.C. 2917.12. Doyle was at a public school district meeting, which allowed speakers three minutes of speaking time during a public comment period. Doyle went over his three minutes and was told several times to stop commenting and sit down. He refused and was physically removed by police officers and charged with disturbing a lawful meeting…. The appellate court found that the statute was constitutional because it does not regulate the content of a person's speech ….

Here Nguyen was not in the public square or on a public university like the defendants in Schwing and Brand, where strong First Amendment rights to freedom of speech exist; she was at a city council meeting…. City council meetings are limited public forums. Because Nguyen was at a limited public forum, her speech could be limited to the discussion of certain topics and limited to a designated and abbreviated period.

The Nelsonville City Council established a viewpoint neutral and reasonable citizens' comment period and asked Nguyen to hold her comments until the citizens' comment period. She refused and was removed and charged with disturbing a lawful meeting. Nguyen does not contend, nor do we find any evidence in the record, that she was prevented from speaking due to the viewpoint of her speech.

We find the analysis of Wolf, Zagger, and Doyle persuasive. R.C. 2917.12(A)(1) does not contain the term "substantial" and targets persons who act "with purpose to prevent or disrupt a lawful meeting." …

Because this case does not involve a traditional public form, like a public street or park, our holding is limited to limited public forums. Thus, we do not consider the constitutionality of R.C. 2917.12 as applied to a traditional public forum….

A procedural twist: This was an appeal from a judicial decision that led to a jury acquittal. That is normally forbidden by the Double Jeopardy Clause, but not here, because the government was just trying to clarify the law going forward, rather than trying to undo the acquittal of Nguyen in particular:

The jury found Nguyen not guilty. The State filed a motion for leave to appeal the trial court's jury instruction, which we granted. Under R.C. 2945.67(A) and App.R. 5(C) a prosecuting attorney "may appeal by leave of the court to which the appeal is taken any … decision, except the final verdict, of the trial court in a criminal case." This provision grants us "discretionary authority to review substantive law rulings … which result in a judgment of acquittal so long as the judgment itself is not appealed." "Even where principles of double jeopardy preclude retrial so that no current controversy exists, appellate review is permitted if 'the underlying legal question is capable of repetition yet evading review.'"

See this post for more on this sort of procedure.

Bradley S. Nicodemus (The Nicodemus Law Office, LPA) represents the City of Nelsonville.

The post "Disturbing Lawful Meeting" Doesn't Need to Be "Substantial" to Be Criminal, at Least if a "Purpose to … Disrupt" Is Shown appeared first on Reason.com.

This is a criminal case arising out of a six-count indictment charging defendant Eric Tabaro Nshimiye with perjury, obstruction of justice, and knowingly concealing material facts in his application for refugee status in the United States.

Nshimiye has moved to dismiss the indictment, asserting that the Rwandan government and its restrictions on speech will prevent the witnesses from speaking freely about the genocide, rendering their testimony unreliable, and that admitting such testimony would violate his due-process rights…. He [also] contends that the government cannot establish that the statements alleged in Counts One and Three were knowingly false or material.

For the following reasons, the motion will be denied….

Eric Tabaro Nshimiye was born and raised in the Republic of Rwanda. He is a Hutu, which is the majority ethnic group in Rwanda. In April 1994, the Rwandan genocide targeting the country's Tutsi ethnic population began. At the time, Nshimiye was enrolled as a medical student at the University of Rwanda in Butare. The government alleges that Nshimiye was an active member of the Movement Revolutionaire National pour le Development ("MRND"), a group that committed genocidal acts in Rwanda in 1994. At some point in 1994 or 1995, Nshimiye fled Rwanda to Kenya.

In May 1995, he applied to become a refugee to the United States and was admitted in December 1995. He became a lawful permanent resident of the United States in 1998 and achieved United States citizenship status in 2003. The government alleges that he knowingly made false statements about his involvement in the Rwandan genocide at each stage of the immigration process.

In April 2019, Nshimiye was called to testify as a defense witness on behalf of Jean Leonard Teganya, his former University classmate and roommate. Teganya was charged with committing perjury and making false statements during immigration proceedings about his membership in the MRND and his actions during the Rwandan genocide. Nshimiye testified under oath before a federal jury….

In Count One, Nshimiye is charged with perjury for testifying that while he and Teganya were University roommates, Teganya did not wear a scarf or hat with MRND insignias. When asked about the apparel, he replied "I don't remember this type of hat," and replied in the negative to questions about Teganya displaying a MRND flag and attending political rallies during university. In Count Two, he is charged with perjury for denying that he lived in Butare during the genocide. When questioned under oath, he stated that "[he] was not in Butare," but rather in Kigali.

In Count Three, Nshimiye is charged with perjury for denying his own involvement in the MRND, including political rallies and trainings. He also denied wearing a scarf, hat, and lapel pin marked with MRND insignias and colors during his time at university. In Count Four, he is charged with perjury for denying his involvement in the genocide while under oath.

In Count Five, Nshimiye is charged with aiding and abetting the obstruction of justice under 18 U.S.C. §§ 1503 and 1502. The government contends that he knowingly concealed material evidence and testified falsely in Teganya….

The court rejected defendant's due process argument:

Defendant … contends that the Rwandan government's strict limitations on free speech, criminalization of political dissenters, and lack of judicial independence will spill over into this case and affect the willingness of the witnesses to speak openly for fear of mistreatment. According to defendant, this would make the testimony of any witness from Rwanda inherently unreliable, which is fundamentally unfair and interferes with his ability to present a defense. That argument falls short, among other reasons, because it does not establish the requisite state action required for a due-process violation.

Broadly, defendant alleges that this prosecution violates the Due Process Clause, which prohibits the federal government from depriving any person of life, liberty, or property without due process of law. To state a claim under the Fifth Amendment, a defendant must show government action that violates procedural or substantive due process.

Defendant alleges that the government is acting as an agent of the Rwandan government by coordinating with Rwandan authorities and making arrangements for witnesses to come to the United States. However, bringing in witnesses from abroad is a normal part of criminal cases. In fact, federal law authorizes cooperation with foreign authorities in gathering testimony.

Moreover, the alleged political influence of the Rwandan government over the witnesses does not constitute state action on the part of the U.S. government. The Due Process Clause applies to misconduct by the United States, not to actions by foreign governments or private actors. To state a due-process violation, a defendant must plausibly allege conduct attributable to U.S. officials, and even then, the bar is quite high. Dismissal is appropriate only where the government conduct is "so outrageous that due process principles would absolutely bar the government from invoking judicial processes." Defendant contends that the U.S. government worked with Rwandan authorities to bring witnesses to testify. But routine practices such as bringing in witnesses from abroad to testify, including international cooperation, do not meet the high bar for due-process violations….

In this case, there is no evidence in the record that the U.S. government has created or contributed to the conditions in Rwanda that defendant describes, interfered with witness testimony, or taken any action to suppress or improperly influence witness testimony. Nor is there any evidence that the U.S. government knowingly intends to call witnesses who will give false testimony. Without more, allegations concerning the reliability of witness testimony raise credibility and evidentiary issues that must be addressed at trial, not in a motion to dismiss.

As to the claims that the government couldn't show that the statements were false and material, the court reasoned:

Nshimiye contends that his testimony was (1) not knowingly false, because the questions concerned events from more than 25 years earlier, and (2) immaterial, because his statements were about trivial facts. When the elements of perjury, including knowledge and materiality, are in dispute, such determinations should be reserved for a jury. The Court cannot find as a matter of law that the statements were immaterial or that defendant could not have had the requisite intent. His arguments that his allegedly false statements reflected faulty memory, not intentional conduct, raise factual issues that are not properly resolved on a motion to dismiss….

Amanda Beck, Christopher R. Looney, and Jason A. Casey, all of the U.S. Attorney's Office (D. Mass.), represent the government.

The post Court Rejects Claim That Rwandan Speech Restrictions Will Prevent Rwandan Witnesses in U.S. Perjury Trial "from Speaking Freely About the Genocide" appeared first on Reason.com.

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Today, the Society for the Rule of Law published my article on "The Case Against Mass Deportation," on its Checks and Balances substack. Here is an excerpt:

Since Donald Trump returned to the White House in January 2025, U.S. immigration enforcement and deportation operations have become more cruel and oppressive than they have been in many decades, if not ever - with victims including both immigrants and many US citizens. The best approach to curbing these abuses is cutting back on deportations more generally.

Since Trump returned to office in January 2025, Immigration and Customs Enforcement (ICE) and other federal officers have killed at least three U.S. citizens (two in Minnesota and one in Texas), wounded numerous others, and detained hundreds illegally, usually after mistaking them for illegal migrants. ProPublica found some 170 cases of illegal detention of citizens through October 2025. But that is almost certainly a severe underestimate.

ICE and other agencies also make extensive use of racial profiling, which leads to detention and harassment of numerous U.S. citizens who are Asian, black, or Hispanic, or look like they might be and thus potentially suspect. The enormous extent of racial and ethnic profiling by ICE is shown by the fact that immigration arrests in Los Angeles County declined by 66 percent after a federal court order barring the use of such tactics (the ruling was eventually blocked by the Supreme Court, perhaps for procedural reasons). Conservatives and others who favor color-blind government cannot make an arbitrary exception for immigration enforcement.

Conditions in ICE detention facilities are often horrific, routinely featuring overcrowding, inadequate food and denial of essential medical treatment. Since the start of the present fiscal year in October, a record 29 people have died in ICE detention, even though the fiscal year is only about half over. The brutality and violations of civil liberties have been exacerbated by the administration's massive expansion of the number of ICE personnel (including hiring many poorly qualified people), and by its imposition of deportation quotas incentivizing arbitrary arrests with little or no proof. There have been so many illegal ICE detentions that courts have ruled against the administration in detention cases some 11,500 times, including thousands of decisions issued by Republican-appointed judges….

The abuses of the deportation system have increased significantly thanks to Trump's policies. But the system is cruel and unjust even under more conventional presidents. Illegal detention and deportation of U.S. citizens long predates Trump. Northwestern University political scientist Jacqueline Stevens estimated that the federal government detained or deported more than 20,000 U.S. citizens from 2003 to 2010…. Racial profiling is also not unique to the Trump era….

Ultimately, it is impossible to deport any large proportion of the estimated 13.7 million undocumented immigrants in the United States without arresting and detaining many people with little or no due process….

Ultimately, the only way to end or greatly reduce that brutality is to radically scale back deportation itself. There are a variety of ways to do that…..

The rest of the piece outlines a variety of potential reforms.

UPDATE: In the original version of this post, I forgot to include a link to the article. That error has now been corrected.

The post My New Article Making "The Case Against Mass Deportation" [Updated with link] appeared first on Reason.com.

James Wenzler posted a series of crass statements on LinkedIn while serving as a member of the Coast Guard Auxiliary and depicting himself in uniform. The Auxiliary investigated, told him to stop, and removed him from its ranks after he failed to heed its warning….

James Wenzler joined the Coast Guard Auxiliary in 2007. He held various positions over the years, eventually becoming a Vice Flotilla Commander. Wenzler publicized his affiliation with the organization on LinkedIn. His profile depicted him in uniform and represented that he served as the Auxiliary's Branch Chief for Human Resources.

In May 2022, a member of the public complained to the Auxiliary about Wenzler's LinkedIn posts. One of the posts accused certain Supreme Court Justices of being racist, and another included a crude remark about the Girl Scouts.

Here are the details on the posts, from the district court opinion:

The first [post] was in response to a post congratulating Justice Ketanji Brown Jackson. Wenzler's responsive post read: "Another racist makes the court to join racist Sotom[a]yor and Kag[a]n. Great job America!" The second post was in response to a post commending a girl scout for writing a letter to the editor to complain about an announcement regarding boy and girl scouts that the writer deemed sexist. Wenzler's responsive post read: "Well if you are proving you are just having fun, then you are. To find something sexist is to show you are the sexist. Perhaps the Girl Scouts should actually accomplish something, but alas they just sell cookies."

Back to the Seventh Circuit opinion:

The Auxiliary's investigation resulted in District Commodore Harvey Randall issuing Wenzler a letter of caution. The letter directed Wenzler to remove from social media any photos of himself wearing his uniform and to delete any reference to positions in the Auxiliary. It also instructed Wenzler to confirm compliance with the directive.

Wenzler failed to comply. Indeed, on July 15, he emailed District Commodore Randall, stating, "I disagree with your fake Letter of Caution, and am going to file a complaint against you for your racist and bigoted action against me because I am White. I find your behavior reprehensible."

Wenzler then stayed the course. In August 2022, the Auxiliary found that his LinkedIn profile still depicted him in uniform and listed him as a Branch Chief in the Human Resources Directorate. The Auxiliary also discovered additional insensitive and insulting posts. For example, Wenzler had quipped that the President-elect of Northwestern University, who had just been diagnosed with cancer, did a "horrible job" at the University of Wisconsin—Madison, her former employer, and "end[ed] up with the physical results of what she was" there. A member of the public saw the post and reacted negatively, asking in the comments if the Auxiliary really had put Wenzler in charge of human resources—essentially questioning whether he was fit to serve as a leader.

When the Auxiliary followed up, Wenzler doubled down. He confirmed that he had no intention of adhering to the Auxiliary's social media directive. So the Auxiliary suspended him and began a formal disciplinary process, which resulted in the Coast Guard disenrolling Wenzler….

The court upheld the dismissal:

"[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Our analysis is the same whether the speaker is a volunteer for a government organization or a paid employee…. To determine whether speech is constitutionally protected, we apply the two-step Connick/Pickering test. First we ask whether the speech in question involved a matter of public concern, as opposed to a purely personal interest. If so, we balance the speaker's interest "in commenting upon matters of public concern" against the government's interest "in promoting the efficiency of the public services it performs through its employees." …

Accepting that Wenzler's speech touched on matters of public concern, we focus only on balancing the parties' interests. On the facts before us, the Auxiliary's need for "discipline or harmony among co-workers" and continued "public confidence" dominate.

The nature of an organization informs the deference we give in determining whether its employees' speech will deleteriously impact the organizational mission. The parties have latched onto language in our precedent identifying certain organizations as "paramilitary" and thus entitled to greater deference in this assessment. These cases considered the discretion afforded to law enforcement agencies, correctional centers, and the like. And indeed we deferred to those types of organizations' "own assessment of the risks to security and discipline." But the deference in reasonably determining what type of conduct is detrimental comes from the nature of an organization and its mission. It does not stem from any separate test for whether an organization qualifies under a "paramilitary" label….

We are convinced that the Coast Guard Auxiliary deserves deference in assessing and responding to its members' speech when they hold themselves out as members of the organization while wearing its uniform…. "For command, control, and administrative purposes," Congress gave the Auxiliary a military-like hierarchy consisting of "a national board and staff …, districts, regions, divisions, flotillas, and other organizational elements and units." …

The Auxiliary's possible missions are substantial. As a constitutional matter, the President, as Commander in Chief, may direct the Commandant to request and authorize assistance from the Auxiliary. As a statutory matter, the Auxiliary may "assist the Coast Guard as authorized by the Commandant, in performing any Coast Guard function, power, duty, role, mission, or operation authorized by law." This includes the ability to "conduct a patrol of a waterway" if certain preconditions are met.

And while Auxiliarists may not "engage in direct law enforcement or military missions" or "enforce limited access areas," they "may advise the public regarding compliance with [a] limited access area." Auxiliarists may also serve as "unarmed opposition forces" during training exercises as well as "gather information and data for the development of Coast Guard, State, and local government contingency plans." Congress further recognized that some missions could place Auxiliarists at risk and therefore provided benefits to those who are "physically injured or die[ ] as a result of physical injury incurred while performing any duty" assigned to them by the Coast Guard.

For his part, Wenzler sees the Auxiliary in more limited terms, as only a volunteer "nonmilitary organization" where members elect their own leadership and may not carry weapons. He tells us that the Auxiliary is nothing more than a "government-sponsored fraternity." We cannot agree. By statute, Congress established the Auxiliary and made it a component of the Coast Guard and thus, at least indirectly, answerable to the Commandant of the Coast Guard.

Wenzler also contends that because the Auxiliary lacks the means to compel obedience from its members it should receive no deference in policing their speech. Here, too, we disagree. Even in the actual armed forces of the United States, earning the privilege to lead has always required buy-in from subordinates. Given its statutory scheme and enabling regulations, we are convinced that the Auxiliary deserves deference in its reasonable determinations of how its members' speech will impact its mission….

Given the uncontested facts before us, the Auxiliary could have reasonably determined that Wenzler's speech and actions would be detrimental to the Auxiliary and its reputation. He served in a leadership role and the example he set mattered. The Auxiliary could have reasonably expected that other Auxiliarists would be less likely to work with Wenzler, or at least to work well with him, following his derogatory comments and attacks on others….

"[A] public employer may act based on potential disruption so long as its predictions are reasonable." … Wenzler's statements alarmed at least two members of the public enough to notify the Auxiliary. On this record, the Auxiliary could have been justifiably concerned about negative impacts to its reputation and, in turn, its recruiting and retention. In the long run, its ability to serve the public might suffer, or at least the Auxiliary could have reasonably believed so.

Robert Ying-Tsai Joynt and Leslie K. Herje of the U.S. Attorney's Office (W.D. Wis.) represent defendants.

The post Court Upholds Dismissal of U.S. Coast Guard Auxiliary Officer for "Crass Statements on LinkedIn" "in Uniform" appeared first on Reason.com.

Judge Eleanor Ross, who serves on the federal bench in Atlanta, engaged in multiple acts of misconduct. She carried on a secret affair with an Atlanta police department officer for nearly two years, repeatedly had loud sex in her chambers, lied about her trysts, and obstructed the investigation. Each of these actions warranted a public reprimand and an impeachment inquiry. But one of the more stunning allegations has flown under the radar: Judge Ross routinely signs judicial orders her law clerks prepare without even reading them. Indeed, it seems she never even talks about these cases with her clerks, so likely has no clue what she is even approving. Yet the council that reviewed this case found no misconduct. 

Let me tell you a not-so-well-kept secret: most judges let their law clerks do far too much. Take it from my personal experience. I clerked in a federal district court for two years immediately after law school. The judge I clerked for, who recently passed away, was a dedicated jurist and an honorable man, but he let his clerks have far too much autonomy. At the time, I was overwhelmed with how many important decisions turned on my immature judgment. In hindsight, I cringe at my mistakes that the judge did not catch. Judge Ross will likely lose her judgeship, either through resignation or impeachment. But the public needs to take a closer look at judges who have abdicated the judicial power to unknown law clerks.

The Eleventh Circuit Court of Appeal's Judicial Council, which reviews misconduct complaints, interviewed six of Judge Ross's former law clerks. They explained that the judge's "longstanding practice was to handle all criminal case work without law clerk assistance." This choice makes some sense, as Ross was a former prosecutor. This work is also predictable. Virtually all federal cases wind up with plea bargains, so the most difficult work concerns calculating a defendant's sentence. This sort of judgment will be based in large part on experience and judicial philosophy. The judge I clerked for would allow law clerks to make recommendations but he always calculated the sentence himself after considering all the evidence.

In contrast with the criminal docket, Judge Ross had no oversight of the civil docket. All six clerks reported that Judge Ross "did not indicate to the clerk how the judge was inclined to rule on the motion or otherwise provide any direction." Moreover, "it was generally understood that" Judge Ross "did not wish to discuss substantive civil-case related issues with clerks." I suppose her time was better spent having loud sex in chambers. 

To be clear, the Judge didn't talk to her clerks about cases before they were assigned, and didn't want to talk to the clerk while the cases were being considered. Worse still, it appears that the judge rubber-stamped virtually every civil order that came before her. The clerks relayed that Judge Ross "rarely, if ever, substantively edited civil orders the clerks drafted." Indeed, the clerks were "generally unaware as to whether the Subject Judge reviewed pleadings or draft civil orders." As proof, a law clerk "stated that on multiple occasions the judge emailed the clerk to docket an order within a few minutes of receiving it, indicating that the judge may not have had time to read it." 

Most civil cases in the federal system are resolved on motions without the benefit of oral argument. Judge Ross was likely able to get away with ignoring her civil docket unless summary judgment was denied and the case went to trial. At that point, she would have to catch up. A career clerk "recalled one instance in which, during the middle of a civil trial, [Judge Ross] made a comment indicating that the judge had recently, for the first time, read the order denying summary judgment in the case." With good reason, the clerks felt "uncomfortable with the level of discretion they appeared to exercise in handling civil cases" especially "given their inexperience."

Judge Ross offered only a partial rejoinder to her clerks. Judge Ross conceded that she does not review any of the filings before assigning a case. Accordingly, she "does not offer clerks guidance, in advance, as to whether a motion should be granted or denied." The Judge maintained that she is "always available" to answer "substantive legal questions." Though it is unclear how much help she can provide if she never read any of the briefs. Judge Ross further "insisted that draft substantive orders are reviewed, and, from time to time, needed corrections are identified." 

Indeed, it isn't even clear what "reviewed" means in this context. She admitted "making edits to between 30 and 40 percent of draft orders." So between 60 percent and 70 percent of the orders she signed had no edits. How often is any work product perfect when delivered? As any editor would tell you, the answer is never. If "corrections are identified" only "from time to time" then the judge is not reviewing documents at all. What about those orders that she edits? Does Judge Ross read the briefs, check the caselaw, or assess the legal arguments? Or does she simply proofread to find typos? I would wager she does little if any substantive work.

The Judicial Council that investigated Judge Ross's sexual misconduct and dishonesty said little about the civil docket. The committee was "troubled by the law clerks' assertion that the Subject Judge is not engaged in the resolution of civil cases (and, indeed, by the judge's own admission of such a lack of engagement)." Yet, the council found that the "facts established do not support a finding of judicial misconduct." Moreover, the council was assured that Judge Ross promised to "be more engaged in civil cases and more open to substantive discussions with law clerks." But notice what the Judge did not promise to do: read the briefs, inform the law clerks how she was inclined to rule, and read every order before signing it. This is not much of a promise.

The public might be appalled that a life-tenured judge has delegated to a twenty-something law clerk the unchecked power to decide complex and impactful cases. But for anyone who has spent time in chambers, this sort of behavior is far too common. Recently, several judges got in trouble for publishing orders with AI-hallucinated cases. In each case, they blamed their law clerks. The truth is the judges blindly signed the orders without checking any of the substance.

Here, I feel compelled to disclose some of my own experience. The judge I clerked for had two clerks each year. The cases would be randomly assigned based on the docket number: one clerk would manage the odd-numbered cases and the other clerk would manage the even-numbered cases. During my two years there, I don't think the judge ever told me in advance how he wanted me to resolve a civil case. To be sure, if I ever had any questions--and I had many--the judge was always willing to talk about the case. But I do not recall that he had read the briefs. The advice was more generalized. 

When I submitted a draft opinion, he would always read it printed out on paper, and he would leave comments in the margins with his perfect penmanship. As best as I can recall, the comments mostly involved proofreading (then, as now, my work had typos). Occasionally he would write that my prose was not clear or that he didn't understand some point. I do not remember many substantive comments. He did not appear to check my citations, or determine whether my legal arguments were fully supported by precedent. I also don't think he checked the record to make sure my assertions were supported by facts.

At some point early in the clerkship, I had this painful epiphany. I realized that I bore so much responsibility for someone else's life, liberty, or property, and I felt completely inadequate for the task. I recognized that the judge was unlikely to catch my errors, and it was up to me to get everything right. That is a stunning amount of responsibility for someone a few months out of law school. But, as can be predicted, I did not live up to that responsibility. One incident still burns in my mind. 

I was assigned a fairly complex commercial dispute. The motion for summary judgment raised an issue of first impression for the court. I spent more than a month writing an opinion on this issue, which I found really interesting. In the end, I recommended that the court grant summary judgment on the novel claim. As I recall, the judge reviewed the opinion for typos and substance but as usual, didn't question my bottom line conclusion. Shortly after the opinion was issued, the losing party filed a motion for reconsideration. I had never seen such a motion during my clerkship, but I realized it was bad. The lawyers relayed that the novel issue was raised for the first time at the summary judgment phase, and was not raised in the complaint. I can't recall if this issue was contested in the summary judgment phase, but it didn't matter. Under the rules of procedure, claims not raised in the complaint are waived. 

I screwed up, big time. I remember having this sinking feeling in my stomach. I wondered whether I would get fired (not the first time and not the last time I would have that feeling). The judge, who was far more patient than I deserved, was not upset. He calmly said I should revise the opinion to remove the discussion of the waived claim, and he would reissue the order. We did just that, and the case proceeded. With the benefit of hindsight it is clear enough that the judge did not read the complaint, the motion to dismiss, or the motion for summary judgment. There was no way he would have caught my egregious error given his processes. At most, he read the opinion his neophyte law clerk put together. 

This near-complete delegation of authority happens in every federal court in the country. That this practice is so common demonstrates why the Judicial Council was "troubled" but found no misconduct. I suspect that at least some, if not most, of the judges on the council engage in this behavior. 

Judge Ross's sordid affair, and subsequent lies, should be reason enough to remove her from the bench. But there should be more scrutiny of how she manages her civil dockets. First, it should be easy enough to compare how much time elapsed between when a clerk submitted an order and when the order was docketed. If only mere moments passed, that would be some proof that she did not even review these orders. Second, the court should compare the draft orders her clerk prepared and the final orders that are submitted. Again, this test would verify if she in fact reviewed a third of her orders, and determine how substantive those revisions are. This sort of inquiry might be labor intensive, but an AI app could process these inquiries in a few seconds. If she did not even offer this minimal scrutiny of her civil docket, it is possible that Judge Ross made further misstatements to the council.

Still, I don't think this inquiry should end with Judge Ross. There should be a broader discussion of whether federal judges can blindly sign orders they do not even read. The Eleventh Circuit judicial council found this act to not be misconduct, but did not explain why. The President nominates, and the Senate confirms, federal judges with a lifetime position to exercise the judicial power. They are responsible for ensuring that people are not deprived of life, liberty, or property without the due process of law. Blindly signing an order prepared by a rookie clerk seems little better than flipping a coin to resolve a dispute. Perhaps it is common enough for Presidents to sign executive orders he does not read, or for members of Congress to vote on bills they do not read, but federal judges should aspire to a higher standard. The rule of law depends on it.

The post Judge Ross Should Have Been Punished For Abdicating Her Judicial Power To Her Law Clerks appeared first on Reason.com.

Today the Supreme Court summarily reversed an Eleventh Circuit capital case, Whitton v. Dixon. Justice Thomas dissented, joined for the most part by Justice Alito. The Eleventh Circuit issued a 60-page decision, but the Court found objectionable two sentences. As Justice Thomas points out in his dissent, the Eleventh Circuit can simply strip out those two sentences, and the outcome would remain unchanged. This seems to be the essence of harmless error. Why, then, did the Court waste everyone's time with a summary reversal?

Justice Thomas charges his colleagues with an inconsistent approach to summary reversal.

This Court has increasingly granted summary relief in certain cases based on lower court errors that seemingly had no effect on the outcome of the case. See Pitts v. Mississippi, 607 U. S. 1 (2025) (per curiam) (granting summary vacatur for man who sexually abused his daughter after likely harmless trial error); Doe v. Dynamic Physical Therapy, LLC, 607 U. S. 11 (2025) (per curiam) (granting summary vacatur after likely harmless state intermediate appellate court error). It would be one thing if this practice reflected the Court's consistent commitment to correcting legal error in all cases. But, in reality, this Court routinely declines to provide relief to law-abiding Americans when it would actually matter, even after lower courts conspicuously flout this Court's precedents in ruling against them.

Over the years, I've noticed this practice. The Court issues a narrow summary reversal on grounds that are easily surmounted, the lower court affirms the conviction, and then the Supreme Court denies cert. What's the point? Why waste so much time and effort on correcting an error that will not affect the outcome of the case. The Supreme Court often says its certiorari docket is not designed for error correction, but as usual, all the rules go out the window for capital cases. The murder in this case occurred in 1990. As often happens in capital cases, delay is the end and not the means.

Justice Thomas also flags specific cases where his colleagues denied certiorari, even as lower courts flouted the Supreme Court. First, he noted two post-SFFA affirmative action cases involving the Boston School Committee and Thomas Jefferson High School in Alexandria, Virginia. The Court refused to "correct a glaring constitutional error." Second, he pointed to the Court's refusal to revisit the Feres doctrine in Beck v. United States. (Justice Alito did not join this part of the dissent, as he did not dissent in Beck.) Third, Thomas cited two cases from Speech First that challenged campus bias response teams. Lower courts found there was no standing, and the Court did nothing.

I continue to think the Supreme Court's mandatory jurisdiction should be expanded. Too many important issues are being left unresolved, and the Justices offer no explanation why. This failure to take important cases is compound when the Justices expend their limited resources in summarily reversing a capital case where the outcome will not change.

The post Justice Thomas Faults The Court's Inconsistent Approach to Summary Reversals appeared first on Reason.com.

From Judge Sanket Bulsara (E.D.N.Y.) Wednesday in Nazarenko v. Genalo:

On May 25, 2026, Respondents filed an answer to the [habeas] petition in this case. That response contained as an exhibit an INA § 236(a) Initial Custody Determination ("INA § 236(a)"). The document was redacted—including the date and time of the arrest of Petitioner and the "Discussion" outlining the basis for a finding of dangerousness. ICE took it upon itself to redact the document, claiming it had been "authorized for release on the condition that certain information, regarding the assessment of dangerousness, be redacted."

The Court immediately noted that the filing of such a document violated its Individual Practices. And importantly, there was no version of the document filed on the docket for the Court to view in unredacted form. In other words, ICE expected the Court to accept that it properly conducted an evaluation of Petitioner's dangerousness, and the basis for detaining Petitioner, but shield its rationale from the Court.

Such practices are repugnant to the rule of law, and ICE is warned that further obfuscation and misuse of sealing and redaction before the undersigned will lead to sanctions against the agency. The Court herein details the reasons why it will not tolerate such practices in the future.

To its credit, upon order that the information be provided to the Court, the United States Attorney's Office filed an unredacted version of the document on the docket. With that unredacted version there was a motion to seal, to keep the information from all public view. The motion is denied.

The motion claims that the information contained therein is protected by the law enforcement privilege. This misapprehends the posture of the case and the filing. The Court is not conducting a discovery exchange with the parties, where one side can claim privilege and avoid scrutiny of a document. Respondents have relied upon the INA § 236(a) to justify their detention of Petitioner, an extraordinary remedy in a civil proceeding, and to respond to the allegation that his detention violated due process.

Having produced the document, Respondents cannot assert a privilege over its contents. They cannot also rely on the document but then shield its contents from the other side (and the Court). See In re Sims (2d Cir. 2008) ("[A] party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party."). "The unfairness courts have found which justified imposing involuntary forfeiture [of a privilege] generally resulted from a party's advancing a claim to a court or jury (or perhaps another type of decision maker) while relying on its privilege to withhold from a litigation adversary materials that the adversary might need to effectively contest or impeach the claim." And that unfairness arises when Respondents seek to use the existence of a custody determination to argue—as they have—that Petitioner received due process but simultaneously preclude him (and the Court) from examining the basis on which the challenged decision was rendered. Privileges cannot be used as a shield and a sword.

The law enforcement privilege also is simply unavailable. As an initial matter, "[n]o affidavits have been submitted to the Court … making an official claim of privilege by the executive level officials of the departments having control over the requested information, i.e. ICE, OIA and USASDNY, based on personal consideration by those officials of the matter, specifying the information for which the privilege is claimed and explaining why it falls properly within the scope of the privilege." That alone makes the privilege out of reach for Respondents: "[n]either an unofficial invocation of the law enforcement privilege by counsel representing the government nor that counsel's assertions, with respect to the privilege, can be used to meet the threshold requirements imposed on the party invoking the law enforcement privilege." See also In re Sealed Case (D.C. Cir. 1988) (To assert the privilege: "(1) there must be a formal claim of privilege by the head of the department having control over the requested information; (2) assertion of the privilege must be based on actual personal consideration by that official; and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege.").

But even the conclusory assertions offered by Respondents do not satisfy the assertion of the privilege. The privilege applies to "law enforcement techniques and procedures, information that would undermine the confidentiality of sources, information that would endanger witness and law enforcement personnel or the privacy of individuals involved in an investigation, and information that would otherwise interfere with an investigation."

Respondents assert privilege over the basis of an ICE custody determination. But custody determinations have nothing to do with law enforcement techniques, sources, or privacy. Custody determinations are not privileged—they are subject to review by supervisors, agencies, and courts, and are not conducted in secret. And as applied to the determination here, Respondents appear to believe that because the ICE officer relied on an Interpol notice to detain Petitioner—they are entitled to invoke the privilege. But an Interpol notice is not a secret law enforcement technique. The existence of an Interpol notice is often a matter of public record. The fact that a notice exists against a person tells us nothing about law enforcement techniques or any matter that falls comfortably within the privilege. For example, it is not information "pertain[ing] to ICE's removal operations and techniques and the logistics of removal." In this case, the reference to the Interpol notice—that it was used to detain Petitioner—reveals no more information about the notice and ICE's use of the document than would be apparent from a privilege log.

If it is redaction that Respondents seek—that is, to prevent the public from knowing the content of the document—then they should have argued that redaction satisfied the [Lugosch v. Pyramid Co. of Onondaga (2d Cir. 2006)] factors. Those factors govern the protection of certain information from public disclosure, notwithstanding the First Amendment interests in public access. Respondents do not acknowledge those factors …, let alone attempt to satisfy them.

In any event, there is no basis for permitting redaction. "[I]t is well established that the public and the press have a qualified First Amendment right to attend judicial proceedings and to access certain judicial documents…. The Second Circuit has extended this right of access to civil trials, pretrial suppression hearings, plea agreements and plea hearings, information on the payment of court-appointed counsel, bail hearings, live voir dire proceedings, sentencing hearings, and even administrative hearings."

The custody form—and the basis for custody—fits comfortably within this scope of documents for which public access is generally accorded. And the document is central to the Court's decision-making on the petition. As the Court's decision granting the writ—which analyzes the legal basis for ICE's conclusion about Petitioner's dangerousness, concluding it violated due process—illustrates, this document is a quintessential judicial document.

And here's the court's opinion (released Tuesday) on Nazarenko's substantive claims:

Petitioner Alexey Nazarenko ("Nazarenko"), a citizen of Russia who has lived in the United States since 2019, was arrested on May 21, 2026, by U.S. Immigration and Customs Enforcement ("ICE") officers at an asylum interview with the U.S. Citizenship and Immigration Services ("USCIS"). Nazarenko was lawfully admitted into the United States on a visitor visa on April 4, 2019, and filed an application for asylum for himself and his family members on September 27, 2019.

Nazarenko is seeking asylum due to political persecution in Russia. He was an elected deputy of the Stavropol Territory Duma in Russia, which allegedly fabricated criminal proceedings against him and his family members, and also made a variety of other threats.  His asylum application has been pending for seven years.  And during that time, he has made every single one of his asylum and immigration appointments without fail.

Nazarenko's wife and three children (two of whom are minors) reside in the United States.  He has an established business in New York, which he relies on to provide for his family, and has paid his taxes. Nazarenko has no criminal history.

As part of his asylum process, Nazarenko was directed to appear for an interview by USCIS.  It was during this interview, on May 21, 2026, that he was arrested by ICE.  The morning of the interview, ICE executed a warrant for arrest, an I-200, and a Notice to Appear ("NTA"), which placed him in removal proceedings….

The sole basis for concluding that Nazarenko should remain in custody was that he "is wanted by INTERPOL in Russia for the crime of Fraud if convicted he faces up to 10 years in prison." This turns out to be false. And either ICE deliberately misstated facts or failed to investigate them before detaining Nazarenko.

The Court directed Respondents to provide the document that ICE relied upon to conclude that Nazarenko is wanted by Interpol. In response, Respondents submitted a letter indicating that Interpol's notice was not a "Red Notice," but what was known as a "Diffusion." "A 'diffusion' is a request for cooperation that is processed through each Interpol member country's national central bureau and, while less formal than a Red Notice, it seeks the arrest of a wanted person with a view towards extradition."

{This Court has ruled in another case that Red Notices—which differ from diffusion notices—cannot be the purported basis for arrest and detention by ICE. See Yeleshev v. LaRocco (E.D.N.Y. May 14, 2026) ("A Red Notice confers no detention authority, and no provision of the Immigration and Nationality Act ('INA') permits detention of an individual based solely upon a Red Notice.").}

The remarkable thing is that Respondents now concede—days after Nazarenko was detained and only after the Court directed production of the document—that "the Diffusion is not currently active," and has not been since March 2026. (In fact, the document states "Warning. File under review[.]") Nonetheless, it was the sole basis for concluding that Nazarenko was a danger to the community and could not be released.

There is more. The diffusion notice—when it was valid—was issued back in 2019. In the almost seven years since the notice was issued, Nazarenko has appeared for repeated check-ins with immigration authorities related to his pending asylum application. And his ties to the United States have grown stronger, having established a business, enrolled his children in school here, and never engaging in criminal conduct. It is confounding how, after the passage of years, the diffusion notice (an inactive one no less), now could be the sole basis to conclude that Nazarenko is a danger to the community. The more straightforward inference is that the custodial determination conducted by ICE was a sham.

The process appears to have violated ICE's own internal regulations and guidance regarding Interpol notices. ICE personnel may not "rely exclusively on Red Notices or Wanted Person Diffusions to justify enforcement actions or during immigration proceedings." ICE Directive 15006.1 (Aug. 15, 2023). And "[t]he first thing ICE personnel must do upon learning about the existence of a Red Notice or Wanted Person Diffusion is … to verify that it remains active and has not been suspended, withdrawn, or expired. ICE personnel cannot use suspended, withdrawn, or expired Red Notices or Wanted Person Diffusions." Id. ¶ 5.1.

"[A] Red Notice is not independently vetted for factual and legal justification, its reliability corresponds with that of the foreign nation's arrest warrant." Yeleshev. See id. at n.7 (citing Cate Brown, Max Hudson, & Julia Luft, Russia Using Interpol's Wanted List to Target Critics Abroad, Leak Reveals, BBC (Jan. 25, 2026), https://perma.cc/5ADV-EL7A (reporting that "Russia is using Interpol's wanted lists to request the arrest of people such as political opponents … claiming that they have committed crimes")). In this case, Nazarenko had an asylum application that indicated the criminal cases initiated against him by Russia were politically motivated and retaliatory.

In such a situation, ICE guidance requires an officer to request additional information to make sure that the notice does not violate Interpol's rules, consult with the Department of Justice, "[r]esearch the person" and the notice to determine "whether there are indicia that the person may be the target of retaliation, harassment, or persecution." ICE Directive 15006.1 ¶ 5.2. Such inquiries or investigation do not appear to have been done—at least none are disclosed in the custody determination form or the documents filed by Respondents.

Despite its own directive to view Interpol notices like the present one skeptically, and to disregard invalid ones, ICE used Nazarenko's inactive diffusion notice to conclude he was dangerous. But an Interpol notice initiated by Russia—and its attendant lack of reliability—suggesting that a person committed fraud, does not on its face, and certainly standing alone, suggest dangerousness, particularly when it is an inactive one. In fact, ICE's own form—the one it used in this case—requires it to consider a bevy of additional factors:

the extensiveness and seriousness of any criminal arrest or conviction; the length of time that has passed since any such arrest or conviction; the sentences imposed; criminal history not known to the immigration officer but disclosed by the noncitizen; statements from the noncitizen regarding dangerousness or illegal conduct; evidence of rehabilitation; compliance with sentences; employment history and ties to the community.

These criteria—Nazarenko's lack of criminal history, his seven-year compliance with asylum and immigration appointments, family and business ties—were plainly not considered. And ICE's failure to do so requires granting the writ.

As further evidence—though none is necessary—of the botched custody evaluation is the fact there is no indication that flight risk was even evaluated. (Custody Determination at 2 (marking neither "yes" nor "no" as to whether the individual poses a flight risk and providing no discussion)). And then there are the potential other elements that should be considered in making a custody determination—including vulnerabilities that would counsel in favor of release. The form also marks both "yes" and "no" as to whether the officer had identified a "special vulnerability," making no reference to what that vulnerability would be and how it factored, if at all, into the custody determination. {Presumably, this refers to Nazarenko's medical conditions, (see Pet. ¶ 41 (detailing, among other things, his ongoing mental health treatment for PTSD and spinal pain control therapy for an injury sustained during an assault in Russia)), or his asylum claim, but the Court cannot determine which on this record.}

This cavalcade of errors—the conclusory evaluation; the exclusive reliance on a diffusion notice alone for a dangerousness evaluation; the failure to consider other factors about Nazarenko's background, presence, and criminal history; and the failure to consider any special vulnerabilities—demonstrate that Nazarenko was not provided with the process to which he is entitled, rendering his detention invalid….

[T]here is [also] a separate and independent ground to conclude that his arrest was also likely illegal and violated due process.

On May 21, 2026, ICE placed Nazarenko into removal proceedings, which as the name suggests, are intended to effectuate his removal from the United States. Yet, the I-797 Notice of Action USCIS issued in 2019 to him, states unequivocally "[y]ou may remain in the U.S. until your asylum application is decided." For ICE to now arrest Nazarenko—with full knowledge of his asylum application, at an asylum interview no less, after advising him that he could remain here without the threat of removal while that application was pending, and in the absence of any changed circumstances—is a form of misconduct. And "affirmative misconduct by the Government may create an estoppel against the Government in immigration cases." Akbarin v. Immigr. & Naturalization Serv. (1st Cir. 1982) (collecting cases); see also Corniel-Rodriguez v. Immigr. & Naturalization Serv. (2d Cir. 1976) ("[T]his court and others have held that the Government's improper actions may preclude it from deporting an alien, even if the language of the Immigration & Nationality Act, read in vacuo, might suggest a difference result."); e.g., Alfaro v. Mullin (E.D.N.Y. 2026) ("As the recipient of an unexpired period of deferred action and a valid work authorization from USCIS—by which the agency committed to take no steps to effect his removal and permitted him to work in the U.S.—Petitioner could not lawfully be arrested and detained by ICE, particularly in absence of changed circumstances and without notice or opportunity to be heard.").

Respondents are directed to effectuate Nazarenko's release by May 26, 2026 at 10:00 P.M. and file a letter on the docket confirming Nazarenko's release by that time. Respondents are enjoined from detaining Nazarenko absent further direction from this Court. Respondents may not use ICE ankle monitors or similar technology to monitor Nazarenko, because in this Order the Court provisionally grants the writ.

The post "ICE Expected the Court to Accept … [Its] Basis for Detaining Petitioner, but Shield Its Rationale from the Court" appeared first on Reason.com.

[I am assuming that you all know the basic background of the Slush Fund "Settlement"; my earlier discussions are here and here.]

Things are definitely heating up on the Slush Fund front.

Even for a President for whom courtroom losses are a depressingly regular occurrence[1], and even putting aside the Order from D.D.C. requiring him to take his name off of the Kennedy Center, Friday was a tough day for our President.

First, in Floyd et al v. DOJ, the district court (ED VA, Judge Brinkema) enjoined the DOJ from "taking any further action pursuant to the creation or operation of the Anti-Weaponization Fund, including the transferring of money to the Fund; the consideration of any claims submitted to the Fund; and the disbursing of any funds from the Fund."[2]

And then a second court (SD FL, Judge Williams), re-opened the Trump v. IRS case (in which Trump had agreed to a voluntary dismissal of his claims), based on …

"… grievous allegations that [Trump] voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that was collusive from the start and was only filed to provide the imprimatur of legality for an unlawful settlement.[3]" The court further ordered Trump to file a response to those allegations by June 12, "detailing his "position on . . . (1) the charges of collusion and whether the Parties are truly adverse; (2) the assertion that the dismissal in this case was premised on deception by the Parties; and (3) the question of whether the case should be reopened because the Court was the victim of a fraud." (Emphasis added)

Do stay tuned. This is getting very interesting and is, potentially, very important. Coming at a time when our President is already in a weakening political position - an unpopular war, inflation, etc. - this looks like it may generate some push-back from Republicans previously willing to toe the MAGA line. The decision of the Republican Senate leadership not to vote on Trump's priority immigration budget before adjourning a couple of weeks ago was widely interpreted as a mini-revolt of sorts against the Fund, and Republican Senators have been unusually vocal in their condemnation of the Fund.*

*From Sen. McConnell ("Utterly stupid, morally wrong") to Sen. Tillis ("stupid on stilts") to Sen. Cruz ("a galactic blunder") to Majority Leader Thune ("I'm not a big fan").

My crystal ball is no clearer than anyone else's, but here are my predictions:

(1) The Anti-Weaponization Fund will never pay a nickel to anyone.

(2) Todd Blanche's days as Attorney General are numbered. This was all a pretty clever scheme to set up a Trump-controlled slush fund plus an immunity from any and all claims the IRS might be able to bring against our President and his family.

That immunity is a nice little bonus that was somehow omitted from the original "Settlement Agreement," an omission Blanche corrected in an "Addendum" dated just one day after the "Settlement Agreement" was executed.  As alert readers may have noticed, the immunity has absolutely nothing to do with the "case" that Trump and the IRS were supposedly "settling".

And Trump would get all of this without anyone other than Donald Trump and Todd Blanche doing anything!  No silly congressional "authorization" or "appropriation" needed!

It has Blanche's fingerprints all over it, and it looks like he may have been too clever by half. He has, rather than enriching Donald Trump, gotten him into some pretty hot water, and at the moment, at least, it doesn't seem as though the money spigot will ever turn on. If Blanche were hoping that this bit of legal legerdemain would help convince our President to remove the "Acting" from his title, I think he will be disappointed.

Memo to Republican senators: This really is a good issue to take a stand on. He'll primary you anyway, whether you lick his boots or not; just ask John Cornyn. Seems like a good time to stand up for the simple principle that even a President can't just take tax money for his own personal purposes.

[1] As I have said many times – because it bears repeating: Trump has lost orders of magnitude more cases in court in a year-and-a-half than any of his predecessors in their complete terms. Indeed, though I doubt that there's sufficient data to test this hypothesis, I wouldn't be at all surprised if he has already lost a greater number of cases than all of his predecessors combined. Ask your AI agent to list all of his losses if you think I'm exaggerating.

[2] Plaintiffs in this case are "former career Assistant U.S. Attorney and January 6th prosecutor Andrew Floyd, Professor John Caravello, City of New Haven, the National Abortion Federation [and] Common Cause," according to plaintiffs' counsel's website (Democracy Now).  Their claim is that "the creation of the [Anti-Weaponization] Fund violates the U.S. Constitution, exceeds executive authority, unlawfully bypasses Congress's exclusive authority over federal spending and appropriations, and violates the Administrative Procedure Act."

One difficult issue in this case, and one that will surely be raised by the DOJ in its responses, is whether plaintiffs have standing to object to the creation of the Fund. I'm no standing expert, but it looks like a tough hill to climb, and I'm curious to see how the plaintiffs frame their argument that they have standing to bring these claims.

Interestingly, Public Citizen has filed a suit containing similar substantive claims in SD CA, on behalf of Allison Gill. Gill, according to the Complaint, was a vocal Trump critic who was targeted by the government and improperly subjected to a criminal investigation in 2019. The Complaint continues:

Plaintiff has been the subject of actions taken by the federal government that could constitute "Lawfare" or "Weaponization" and may be entitled to compensation and an apology from the Fund. Plaintiff thus has an interest in the Fund's establishment and operation, including an interest in ensuring that the Fund is legally sound, that Lawfare and Weaponization are appropriately defined to cover Plaintiff's claims, and that the procedures and standards through which claims are considered are fair and equitable.

It's a nice bit of legal jiu-jitsu - people subject to Trump's "weaponization" can sue and assert standing based upon their interest in being compensated by Trump's Fund!

[3] The allegations are contained in a Motion submitted to the court last week by 35 retired federal judges. [See here, and my discussion here]. According to the court's Order re-opening the case, among the allegations contained therein are

". . . the fact that the settlement in question includes a 'three-paragraph addendum' . . . [that] purports to 'forever bar and preclude' the United States from pursuing claims that could have been [otherwise] asserted [against] Plaintiffs,'), and the fact that Defendants did not 'even try[] to defend against Plaintiffs' claims' despite their active opposition to nearly identical claims in other litigation. Finally, the non-party movants assert that Plaintiffs' claims were "clearly untimely" and therefore untenable."

The post The Art of the Deal cont'd, cont'd appeared first on Reason.com.