[Eugene Volokh] Court Upholds African People's Socialist Party Convictions for Being Unregistered Russian Foreign Agents

From today's decision in U.S. v. Romain by Eleventh Circuit Chief Judge William Pryor, joined by Judges Jill Pryor and Andrew Brasher: For years, members of the African People's Socialist Party followed the direction of Alexander Ionov of the Russian Federation-backed "Anti-Globalization Movement." Ionov funded trips for Party leadership to Moscow, sponsored multiple Party events, told the Party to publish pro-Russian statements, and appeared on Party media…. [A] jury found {three Party members and one former member} … guilty of conspiracy {to act as foreign agents without notifying the attorney general}…. The court held that the prosecution didn't violate the First Amendment: {"To violate [section] 951, . . . a person must act," "the action must be taken at the direction of or under the control of a foreign government" or foreign official, and "the person must fail to notify the Attorney General before taking such action."} The indictment necessarily implicated speech. The indictment alleged that the defendants acted and conspired to act at Ionov's direction through several expressive and speech acts, including "author[ing] and publish[ing] articles," "drafting reports," organizing the encampment tour, "hosting virtual conferences" on political and social issues, and "mak[ing] public statements in support of the Russian Federation." So we must next determine whether the charged offenses are content neutral so that we can decide what level of judicial scrutiny applies…. Section 951 is content neutral because it applies equally to all acts taken under the direction or control of a foreign government without regard to the "content of the message" an agent spreads. Section 951 regulates conduct and speech regardless of which government directs it or what a foreign government directs. Because section 951 is content neutral, we "subject [it] to an intermediate level of scrutiny." Under intermediate scrutiny, "we will sustain a content-neutral law if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." Section 951 satisfies intermediate scrutiny. "[T]he Government has an interest in knowing the identity of those acting on behalf of a foreign government within the United States, whether the action is legal or not." "That rationale is decidedly content agnostic" because it "neither references the content of speech [of agents] nor reflects disagreement with the message … [they] convey[]." And by requiring agents only to notify the attorney general before acting, section 951 advances that interest as narrowly as possible. Indeed, after notifying the attorney general about his status, an agent may engage in any speech or expressive conduct on any topic. The defendants argue that we should apply strict scrutiny because Reed v. Town of Gilbert (2015), treats content-neutral laws as "content-based when used by the government to target speech." But Reed reaffirms only that "facially content neutral" regulations "will be considered content-based" when they "cannot be justified without reference to the content of the regulated speech" or "were adopted by the government because of disagreement with the message the speech conveys." Under that rule, section 951 is content neutral…. [F]ailure to notify the attorney general is an essential element of section 951. That element is "separately identifiable" from the defendants' speech and does not inherently convey any message. The notification requirement neither formally nor functionally repressed the Party's ability to express its political views. Cf. Meese v. Keene (1987) (holding that registration requirement of foreign "political propaganda" placed "no burden on protected expression" because it did "not prohibit, edit, or restrain [its] distribution"). Here are the facts, which the court found sufficed to show a § 951 violation: [Defendant] Omali Yeshitela founded the African People's Socialist Party in 1972 and still chairs it today. Headquartered in St. Petersburg, Florida, the Party "supports the rights of African people throughout the world to be free from colonialism and exploitation." [Defendants] Penny Hess and Jesse Nevel are Party members, and [defendant] Augustus Romain was a member until 2018. After he left the Party, Romain formed the Black Hammer Party to prompt "the masses in America to revolution." Aleksandr Ionov, a Russian citizen, directs the Anti-Globalization Movement of Russia, which purports to defend "the right of peoples to self-determination and [the] building of the multipolar world." Ionov is an asset of the Russian Federal Security Service. He regularly communicates with Service officers Yegor Popov and Aleksei Sukhodolov about Movement endeavors. In May 2015, Ionov invited Party members on an "all expenses paid" trip to Russia to meet "other activists and establish close ties with Russian society." Yeshitela accepted the invitation. Before Yeshitela's trip, Hess told a Movement officer that Yeshitela would "like to meet with an official representative of the Russian government" and "[h]ave [his] own event to speak to students, anti-imperialists and workers about the struggle of African people." After Yeshitela returned from Russia, Ionov and the Party formed, according to Hess, a "[d]eepening relationship." They were "in touch almost every day." In July, Ionov asked Hess whether the Party was interested in organizing events funded by the Movement. Later that month, Ionov donated $500 to the Party as part of a "Reparations Challenge." And that month, Ionov told Hess that he "need[ed] [her] to make [a] draft of [a] [United Nations] petition on [g]enocide of African people in [the] U.S. since the beginning of time." Ionov explained to Hess that the Movement could support the petition only "as cowriters/supporters" because "we're not exactly black to demand it for ourselves." Hess agreed, and Ionov told her to prepare it "ASAP." Ionov later requested it be posted "to the websites of White House and change.org" and that it be published two days later. Hess said she would "make that happen." The next month, Ionov invited Yeshitela to the Movement's "Dialogue of Nations," an "international expert conference" held in Moscow involving discussion of "the right of peoples to self-determination." Yeshitela again agreed to attend, and Ionov paid for his travel expenses. While Yeshitela was in Moscow, Hess emailed him, Romain, and Nevel news coverage of the conference. One article in The Guardian, titled "Russia Funds Moscow Conference for US, EU and Ukraine Separatists," explained that "the National Charity Fund, which was founded as the National Military Fund in 1999 by … Vladimir Putin," funded the event. And after Yeshitela returned, he confirmed to Party members that the Movement had Russian government connections: Anti-Globalization Movement of Russia is a solid institution of Russian politic. Some articles said they got 30 percent funding from charity tied to Putin, et cetera, but it is clear that it is instrument of Russian government. This does not disturb us. In January 2016, Ionov pledged $12,000 to the Party for a four-city encampment demonstration against genocide. Hess thanked Ionov for "envisioning such actions," and the Party held the tour. At a Party debriefing, Yeshitela explained that the Movement asked for the tour as "a big mobilization around the genocide question." But Ionov sent only $7,000 of the promised $12,000. Yeshitela traced the underpayment back to Ionov "hav[ing] to justify … getting resources for this." Indeed, Movement agents asked Hess to "give [them] links or send a report about the action," including, for example, "where the action took place" and "how many people attended." At the Movement's request, Party leadership also published pro-Russian statements on Party media. In May 2016, Ionov asked Hess to publish two articles about Russians detained in America. And another Movement agent asked Hess to post a statement supporting the Russian Olympic team after some members were banned from the 2016 Olympics. Hess and Yeshitela complied both times. Later, a Movement member asked Yeshitela to record a "video with congratulations to the residents of the Donetsk People's Republic" on the anniversary of their "self-determination." Yeshitela prepared the video, and Ionov sent it to Popov. On February 24, 2022, Russia invaded Ukraine. Ionov sensed that Russia was "losi[ng] the whole information campaign." So he made several "emergency phone [calls] with some leaders of antiwar organizations" in the United States, including Party members. Ionov "request[ed] [the Party] … support Russia in the information war unleashed by the West," and asked Yeshitela to "make an official statement on the situation and show support for Russia." Yeshitela published YouTube videos discussing "Russia's defensive war in Ukraine against the global colonial powers." One video, for example, displayed the promo: "APSP stands with Russia. APSP stands with Putin." Ionov also appeared on Yeshitela's YouTube broadcast. Ionov then targeted Meta, Facebook's parent company, because he believed Meta "allow[ed] calls for violence against Russians." In March 2022, he asked both Party members and Romain, who by then had founded the Black Hammer Party, to protest outside Meta buildings. Yeshitela and his team scheduled a protest entitled "Unfriend Facebook Lies" in Silicon Valley and another demonstration "demanding an end to the censorship of Russia and Africa" in front of Facebook's San Francisco office. Ionov also directed Romain to hold a protest at Meta and sent him banners to print, saying "Stop Meta Segregating Russian People. Stop Russian Segregation. Stop Meta Fascism" to display. Ionov booked flights and hotels for Romain and his associates. And he instructed Romain to send "a lot of videos and photos … that [he] c[ould] throw in the [Russian] media." … Sufficient evidence supports the convictions. The defendants concede that they entered a voluntary "agreement" with each other and the Russians. Indeed, Yeshitela explained during Party meetings that the "Party developed a relationship with forces in Russia" and entered the relationship as "allies." Moreover, the defendants' agreement aimed to violate section 951. The conspirators committed several overt acts to advance their objective. Yeshitela knew that the Movement was an "instrument of Russian government"—a fact he shared with the others. And Party members consistently obliged Ionov's "needs" and "requests," which allowed a reasonable jury to find that they agreed to be subject to his direction. Toward the beginning of their "[d]eepening relationship," Ionov told Hess he "need[ed] [her]" to draft the United Nations petition, and he later told her to prepare it "ASAP." Ionov "asked [the Party] for a big mobilization … around the genocide question" and "envision[ed]" the encampment tour as part of the mobilization. The Party members knew that the Russian government sponsored the encampment because Ionov told Yeshitela he "need[ed] … details" from the tour to "justify … getting resources" for it. The Party members also agreed to Ionov's requests to post statements supporting the Russian Olympic team, to record a video of congratulations for the "Donetsk People's Republic", to use social media to support Russia during the Ukraine invasion, and to stage two protests outside of Meta. And none of the defendants notified the attorney general of those activities…. The jury could have reasonably found that the defendants subjected themselves to Ionov's guidance by carrying out his plans…. The court also concluded that § 951 doesn't require proof that defendants knew of their legal duty to register. The post Court Upholds African People's Socialist Party Convictions for Being Unregistered Russian Foreign Agents appeared first on Reason.com.

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[Orin S. Kerr] New Draft Article: "The Fourth Amendment After Chatrie"

Just posted today at SSRN.

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[Eugene Volokh] "Did Fauci Properly Take the Fifth?"

An excerpt from a detailed analysis at FoxNews.com from John Malcolm, a former federal prosecutor and current VP of the Meese Institute for the Rule of Law at Advancing American Freedom: Several factors suggest Fauci's invocation [of the Fifth Amendment privilege] was improper. Two are critical. The first is Fauci's pardon…. The second is time: Fauci retired in 2022, making it unlikely that any state crime he might have committed would fall within the applicable statute of limitations, assuming any state could credibly claim that he committed a crime or that venue was proper in that state. In Hoffman v. United States (1951), the Supreme Court said the privilege against self-incrimination protects against real dangers, not remote or speculative possibilities. Two other things are clear. First, a witness can refuse to answer questions that might implicate him in a crime, not to avoid embarrassment…. Second, a witness cannot invoke the Fifth Amendment because he thinks he will be charged with perjury even if he provides truthful testimony. On the other hand, there are factors in Fauci's favor. First, President Trump and several Republican congressmen are arguing that Biden's last-minute pardons, which would include Fauci's, are null and void because, they claim, Biden's staff used his autopen to sign those pardons without Biden's knowledge or approval. If Fauci's pardon is invalidated, he could be prosecuted by the Justice Department for federal crimes he might have committed during the period covered by the Biden pardon. Second, several state attorneys general have now said they are initiating investigations to see whether Fauci committed any state crimes related to his government service. Perhaps they envision a perjury charge for deposition testimony Fauci provided in Covid-related litigation. That effort might end up going nowhere, but Fauci is certainly entitled to take them at their word that he still faces legal jeopardy. These statements alone make it far more likely that a judge would ultimately determine that Fauci's invocation of the Fifth was proper…. The whole thing is much worth reading. The post "Did Fauci Properly Take the Fifth?" appeared first on Reason.com.

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[David Post] Todd Blanche for Attorney General?

Rescinding the egregious Slush Fund Order should not obscure the fact that Blanche was a central participant in, and possibly the architect of, a scheme to defraud the court and the American taxpayer. The one job he is surely not qualified for is the one he now seeks.

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[David Bernstein] Harmeet Dhillon on Distinguishing Between Protected Speech and Actionable Discriminatory Conduct

Jewish Insider: Harmeet Dhillon, the assistant attorney general for civil rights, urged pro-Israel college students to distinguish between protected speech and actionable discriminatory conduct — "people literally interfering with your ability to get an education" — when facing antisemitism on campus. "[With] a lot of young people these days, there's kind of a snowflake culture with 'I feel unsafe.' I feel unsafe everyday when I go to work and get a mean email from a colleague. Life is full of challenges," Dhillon said on Tuesday at the conclusion of the Israel on Campus Coalition's National Leadership Summit in Washington. "Someone wearing a keffiyeh or shouting 'from the river to the sea,' it's protected by the First Amendment," Dhillon said. "Holding a red triangle over a student's head in a mob setting and saying 'Jews not welcome' is much closer to not protected speech." "You have to sort out people being mean or rude to you versus people literally interfering with your ability to get an education," she said. It so happens I've written two articles on exactly that theme, i.e., distinguishing between protected speech and unprotected conduct. Unfortunately, the Jewish Insider article does not give much more detail about Dhillon's speech; I don't know if that's because the speech did not go into further detail, or because of the limitations of a short article. That said, while I agree with Dhillon's general point and understand why she made it to this specific audience, there is a related issue percolating through the courts: can otherwise protected speech be used as contextual evidence to explain why unprotected conduct contributed to an unlawful hostile environment for Jewish students. The law firm Consovoy, McCarthy recently filed an amicus brief to the Supreme Court on my behalf, asking the Court to grant cert. in Stand With Us Center for Legal Justice v. MIT. In that case, the First Circuit, correctly, held that illicit actions by anti-Israel protestors cannot turn unprotected speech into a civil rights violation. The court then, incorrectly, suggested that the illicit conduct itself became part of the protected speech so long as MIT chose not to enforce its rules (and the law). But the amicus brief focuses on the narrower issue of whether constitutionally protected speech endorsing violence can be used as contextual evidence explaining why unprotected conduct contributed to a hostile environment. Given that the court mistakenly ruled that unprotected conduct was protected speech, it neglected to meaningfully address this issue, but it's crucial to hostile environment cases: An act that appears innocent in isolation may take on a different meaning when viewed in context. Posting a completed game of hangman in a dormitory common area may seem innocuous. But if students had publicly declared the week before that lynching was a good way to keep Black people "in their place," the same image could reasonably be understood as threatening and racially targeted. The surrounding expression thus bears directly on how a reasonable person would understand the act. As always, a cert. grant is a longshot, but mine is one of several amicus briefs filed in the MIT case. If followed by other courts, the opinion would not only make it nearly impossible for Jewish students to win hostile environment cases, could also spell the end of hostile environment litigation more generally. In addition to the issue raised above, the MIT court held that holding a defendant liable for deliberate indifference to a hostile environment requires evidence that the actors who created the hostile environment acted with discriminatory animus. So, first, the court held that proof of discriminatory animus is required, but also held that contextual evidence that would show that discriminatory animus is barred. And, second, the notion that discriminatory animus is required for hostile environment claims to begin with seems clearly wrong. On the most basic level, it's not the students  who created the hostile environment who are being held liable in a hostile environment case, it's the university that exhibited deliberate indifference to the hostile environment. Imagine the university implemented an AI communications system, which started sending out violent threats to women students. The university became aware of these threats, and the impact it was having on women students who were unable to concentrate on their studies after receiving vile, threatening messages to their phones and emails. The university chooses to do nothing. AI, not being a sentiment being, can't have an "intent." Does that mean that a subsequent hostile environment case should fail, because there was no discriminatory intent or animus in the underlying behavior? That seems absurd. The post Harmeet Dhillon on Distinguishing Between Protected Speech and Actionable Discriminatory Conduct appeared first on Reason.com.

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[Josh Blackman] The Justices Should Hold Regular Press Conferences

The second installment in a SCOTUSBlog series with recommendations for Unilateral Supreme Court Reform.

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[Eugene Volokh] "This Direct Monetization of Prior Government Service Is Beyond the Pale"

From Third Circuit Judge Emil Bove's dissent last week from the one-line denial of mandamus in In re Mylan, Inc. (the majority consisted of Judge Brooks Smith, joined by Judge Matthew Schwartz): The Attorney who survived Defendants' disqualification motion is representing private parties in the very same litigation he led on behalf of Connecticut for more than a decade. This direct monetization of prior government service is beyond the pale. It is also a violation of Rule 1.11(c) of Pennsylvania's Rules of Professional Conduct. The Rule violation undermines the integrity of the proceedings, including an upcoming complex bellwether trial that will have a ripple effect in other multi-district litigation. Ripple effects in the MDL [Multi-District Litigation] multiply the taint risk that the District Court has authorized. So I would grant mandamus relief. The decisions of the Attorney, the Firm, and Plaintiffs require disqualification…. From a commercial standpoint, there is no mystery about the Firm's hiring of the Attorney and Plaintiffs' desire to pay for the Attorney's services. Plaintiffs are seeking billions in damages relating to pharmaceutical price fixing. Beginning around 2016, the Attorney led an investigation on behalf of Connecticut's Attorney General that overlapped with Plaintiffs' claims almost 100%. During the Attorney's public service, he joined forces with 53 other States and Territories. He gleaned strategic and investigative information during that process. While working for Connecticut, the Attorney spoke privately and confidentially with those regulators, targets of the investigation (including certain Defendants) and their counsel, and witnesses and their counsel. The Attorney's government work also involved coordination with the DOJ and FTC, which conducted parallel federal investigations. There have already been federal deferred prosecution agreements and coordinated state-level civil settlements. Those dispositions all but confirm that sensitive information circulated between the government actors—including the Attorney—for quite some time. Plaintiffs piggybacked on these government efforts with their own claims against Defendants. The relevant MDL commenced in 2016. The Firm represented Plaintiffs since at least 2019 without the Attorney in their camp. On behalf of Connecticut, however, the Attorney worked closely with Plaintiffs' team. On July 1, 2025, the Attorney withdrew his appearance for Connecticut. He left government service on July 3. He joined the Firm's partnership on July 7. The Firm touted the Attorney's work on the price-fixing investigation. A press release announced that the Attorney would "continue" to work on the case for his "new private clients." The Attorney entered an appearance on behalf of Plaintiffs on July 9. Not surprisingly, Defendants moved to disqualify the Attorney and the Firm. The District Court denied the motion and refused to certify an interlocutory appeal…. [Pa. R. Prof. Conduct] 1.11(c) prohibits the Attorney from representing Plaintiffs because he obtained "confidential government information" relating to Defendants while he worked for Connecticut. The Attorney "may not" represent Plaintiffs because his confidential government information "could be used" against Defendants. It is that simple. [Here's the full text of Rule 1.11(c): "Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term 'confidential government information' means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom." -EV] The imputation of the Attorney's Rule 1.11(c) conflict to the Firm is mandatory. Despite the fact that the Firm's representation of Plaintiffs long predated the Firm's hiring of the Attorney, the Firm apparently made no effort to screen the Attorney while the disqualification issue was addressed. And there is no reason to doubt that the decision to proceed in this fashion was the result of an eyes-wide-open decision by sophisticated actors. Defendants should not have to wait until a direct appeal to correct these errors because "an appeal that comes too late can almost never unscramble the egg." IPlaintiffs, the Firm's personnel, and other MDL participants cannot unlearn confidential government information passed to them by the Attorney. The Attorney and the Firm seek to defend their conduct by pointing to extensive sharing of documentary evidence with Plaintiffs by Connecticut and other States. There is no textual basis for the argument that this sharing cured the violation of Rule 1.11(c). The District Court seems to have been persuaded by the Attorney's "promise" that, "if he has such [confidential] information, he will not share it with his clients or other MDL parties aligned with them." Like the document sharing, the Attorney's CYA promise has no relevance to the application of the Rule. There was also no basis for the District Court's suggestion that Defendants were required to identify potential "prejudice" under Rule 1.11(c).  Because the appearances problem is so significant in this setting, the Rule does not require such a showing. See City of Philadelphia v. Dist. Council 33 (Pa. 1983) ("[T]his Court has never required a showing of potential or actual damage for disqualification."). Accordingly, the District Court committed a clear legal error in the application of Rule 1.11(c), which cannot be fully redressed later in a direct appeal…. I am mindful that this type of ethical violation does not always mandate disqualification. See In re Boy Scouts of Am. (3d Cir. 2022). There should not be too many cases, however, where a lawyer is permitted to proceed with a representation while violating applicable ethical rules in a way that creates appearances of impropriety. The five factors set forth in Boy Scouts and other cases make clear that this is not such a case. First, to the extent the disqualification motion raised any choice-of-counsel issues, Plaintiffs and the Firm created them. Before the Attorney joined the firm in July 2025, Plaintiffs had benefited from the Firm's representation for at least six years. During that period, other lawyers capably represented Plaintiffs' interests. When the Attorney recently joined Plaintiffs' team, they named him as their lead counsel instead of waiting to address the obvious ethical issues. In this context, Plaintiffs' interest in the Attorney's services does not outweigh the attendant ethical violations. Second, it would not be an "undue" or excessive restriction on the Attorney's private-practice prospects to insist that he not draw fees in the same litigation that Connecticut taxpayers previously paid him to steward on their behalf. Based on the Attorney's expertise and experience, he has plenty of viable options for new clients and different matters. Prohibiting the type of ethical violation that the District Court has blessed would not deter reasonable attorneys from entering public service. Third, Plaintiffs and the Firm deployed the only questionable "litigation strategy" at issue. The Special Master whose report the District Court adopted was wrong to suggest otherwise. Disqualification may have been "disruptive," and it could "adversely affect" the schedule of the bellwether trial, as the Special Master put it.  But that is a problem of Plaintiffs' creation. Defendants should not have to sit on their rights to keep a trial schedule on track in response to this brazen move by Plaintiffs, the Firm, and the Attorney. It will be equally disruptive, if not more so, for judges to address all the issues that will arise at the trial and in the other cases as a result of the Attorney's changed roles. Thus, Defendants' handling of this litigation was not strategic in a problematic sense. Fourth, the negative appearances arising from this situation obviously favor Defendants. The naked and problematic profit-seeking that is manifest in the record is being swept under the rug. At least for now, unless and until there is a direct appeal. In the meantime, no one could fault an observer for wondering if the Attorney was more inclined to exercise his judgment in a manner that pleased Plaintiffs when he started to job hunt while still working for Connecticut. Worse still, in my view, the Firm's press release essentially confirmed that the Attorney's move was timed so that he could use his "deep knowledge" of the case to "serve his new private clients as their cases head to trial."  In other words, the Firm hired the Attorney to work for Plaintiffs at the most financially significant moment of the case. The existence of these harsh but unavoidable inferences should have been enough to forbid the Attorney's current role. Fifth, the risk of unfair prejudice to Defendants in this case and related ones is substantial. The suggestion that Plaintiffs' interests are completely aligned with Connecticut's because of previous discovery sharing is misleading at best. The Attorney was careful to avoid suggesting that he had previously shared everything. In response to the disqualification motion, he contended that he had shared information "extensively" but not completely.  He emphasized documentary disclosures, but he used amorphous limiters like "important and material information"—as opposed to all information—to describe what he disclosed.  As one indicator among many of the types of information not shared, the Attorney felt it necessary to assure the District Court that he had not "discussed" with new colleagues at the Firm "any information I may have learned during settlement negotiations that I participated in" on behalf of Connecticut. Only by suspending common sense can one ignore the extensive non-documentary mental impressions and information that the Attorney obtained during his public service, which are now available to Plaintiffs and the Firm as they prepare for trial. The Attorney's "deep knowledge" of the case, which is the phrase the Firm used in the press release, includes confidential governmental information that no one should be in a position to sell…. Profit seeking by the Attorney, the Firm, and Plaintiffs risk diluting the public benefit of investigations and litigation that the Attorney led during his old job. The taint risk arising from the violation is substantial, which risks wasting the extensive judicial resources necessary to adjudicate these matters. Mandamus is the "only avenue with the remedial force to address the District Court's error." … I can't say who's right and who's wrong on this—Judge Bove's two colleagues obviously weren't persuaded by his analysis—but it struck me as worth noting. The post "This Direct Monetization of Prior Government Service Is Beyond the Pale" appeared first on Reason.com.

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[Eugene Volokh] "After the Hallucination: What 100 Recent Cases Reveal About Candor, AI Errors, and Sanctions"

From Adam Feldman (Legalytics) yesterday—unsurprising, but it's helpful that this can be shown concretely: This article examines what courts have done after lawyers learned, or should have learned, that AI-related inaccuracies had entered the record. The study began with Damien Charlotin's publicly available AI Hallucination Cases Database and independently reviewed 100 of the most recent cases in the dataset that were resolved U.S. matters involving lawyers. A stricter analytical sample included cases with a meaningful AI connection, a final judicial outcome, and enough information to evaluate counsel's response after discovery. The results point to a coherent and practical distinction. The seriousness of the original error remains central: nearly every high-materiality incident produced a serious consequence. But post-discovery conduct also mattered. Serious consequences were substantially more common when lawyers offered misleading explanations, shifted blame, repeated the misconduct, or introduced additional inaccuracies after receiving notice. Prompt admission, by contrast, was associated with a markedly lower rate of serious consequences. Candor cannot erase significant harm to a client or the judicial process. It can, however, prevent an already serious mistake from becoming a separate problem of professional responsibility…. And some more (read Feldman's whole post for still more): The data suggests that the first response should be investigative rather than defensive. Counsel should preserve the prompts, outputs, research histories, drafts, and communications connected to the filing; identify who drafted, reviewed, and signed it; and examine every authority, quotation, and factual assertion produced through the same workflow. The correction should address the full problem rather than only the error identified by opposing counsel. That may require withdrawing or replacing the filing, notifying the court and opposing counsel, and explaining accurately how the material entered the record. Describing fabricated authorities as typographical errors, or assigning responsibility primarily to a subordinate, client, vendor, or software product, creates additional risk. Remedial measures are most persuasive when they are concrete and voluntary. Courts credited steps such as mandatory review of primary sources, supervisory approval, AI-use policies, training, audits of related filings, and reimbursement of unnecessary expenses. Once counsel receives credible notice, every later filing, explanation, and omission becomes part of the court's assessment of professional judgment and candor…. The post "After the Hallucination: What 100 Recent Cases Reveal About Candor, AI Errors, and Sanctions" appeared first on Reason.com.

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[Ilya Somin] My New Dispatch Article on Trump's Section 301 "Forced Labor" Tariffs

The article explains why the new tariffs are harmful and illegal for many of same reasons as those invalidated by the Supreme Court.

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[Eugene Volokh] Stop-Talking-to-Me Order Against Ex-Landlord Who Kept Texting Ex-Tenant About COVID Vaccines

From Gonda v. Duering, decided Friday by the Hawaii intermediate appellate court (Justices Katherine G. Leonard, Keith K. Hiraoka, and Daniel M. Gluck): [O]n December 11, 2024, Petitioner-Appellee Anaya Gonda filed a Petition for an Ex Parte Temporary Restraining Order (TRO) and for Injunction Against Harassment (Petition). Gonda alleged that Duering, her former landlord, had harassed her both before and after she vacated the apartment on September 11, 2023. She alleged that Duering sent her "over 25 disturbing text messages with no legitimate purpose and a concerning focus on [her] health," reflecting Duering's belief that COVID vaccines had caused Gonda's health problems. She alleged that Duering continued to send her text messages in October 2023, January 2024, April 2024, July 2024, and November 2024…. Gonda's boyfriend, Gustavo D'Amico, was the first witness [at trial]. He testified that he and Gonda arrived at the apartment on September 11, 2023 to find Duering there with a painter—even though Gonda had paid rent through the end of September—and that Duering began "screaming at" D'Amico. D'Amico called the police, and the police "helped handle the situation." Gonda then testified that, on September 11, 2023, she told Duering not to contact her …. She similarly testified that "after my tenancy ended on September 11th and I, uh—told Mr. Duering to never contact me again, except via my lawyer …." Gonda testified that this exchange took place in person …. Duering, for his part, denied that Gonda told him not to communicate with her…. Gonda testified that Duering's text messages were "always about [her] health" and contained "COVID vaccine … conspiracy theories." She testified that there was no reason for Duering to communicate with her. In cross-examination by Duering, Gonda further testified that she was "concerned and disturbed by the obsessive nature of [his] continued messages towards [her] when there's absolutely no reason for [him] to contact [her]." Hawai'i Revised Statutes (HRS) § 604-10.5(a) defines "Harassment" as including: An intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual and serves no legitimate purpose; provided that the course of conduct would cause a reasonable person to suffer emotional distress…. Duering … argues that the District Court violated his right to free speech, freedom of religion, and/or to petition the government for redress of grievances—as guaranteed by the First Amendment to the United States Constitution—by prohibiting Duering from communicating with Gonda…. As the United States Supreme Court has made clear, "no one has a right to press even 'good' ideas on an unwilling recipient." Rowan v. U.S. Post Off. Dep't (1970). Duering has a constitutional right to hold, and publicly express, whatever views he likes regarding the COVID vaccine; here, however, Duering is not being restrained because of his viewpoints on COVID, nor is he being restricted in communicating with any other member of the public regarding his views. Instead, he is restrained from very specific conduct—contacting Gonda—for a limited time…. [T]he Injunction imposes no restrictions on Duering's ability to express his views to any other member of the public (or the government), and its prohibitions with respect to Gonda expire after three years. The District Court found that Duering harassed Gonda, and did not err in restraining him from harassing her further…. [Duering also argues] that the District Court was improperly biased against Duering because of Duering's views on COVID vaccines. He points to the District Court's statement that Duering "was not—is not [Gonda's] doctor" as evidence of the District Court's bias against him. He explains: Duering's personal and religious views that the Covid vaccines were (and are) dangerous to human health; which if contrary to Judge's belief, is an issue that has divided families and friends to disassociate with one another, which was caused since the massive Covid vaccination rollout in 2021, which was in addition to the big divide, which media propagated mind control, to influence otherwise sound-minded intelligent people, to ridicule and berate people like Duering, who merely seeks to educate those who are uneducated on the subject and dangers of inviting foreign unidentified substances, to be voluntarily injected into their sacred body. The District Court made its statement that Duering was not Gonda's doctor while explaining its finding that Duering had no legitimate purpose for contacting Gonda; indeed, the District Court made clear that Duering's views on COVID vaccines were not relevant to its determination: The point is not that your views are legitimate or substantiated or worthy of—or worthy of Ms. Gonda to consider them. That's really not relevant. What is relevant is somebody who did not want to have communication from you, and that being the case, it—it almost doesn't matter what you were saying to her in that regard, and it's—and so that's why the court is ruling that the injunction order will be issued. Duering and Gonda no longer had a landlord-tenant relationship, and Gonda made clear that she did not want his unsolicited medical advice. The District Court did not err in concluding that Duering had no legitimate purpose in contacting Gonda. Nothing in the record suggests any improper bias by the District Court…. For more on anti-harassment orders generally, see Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases); that article argues that broad injunctions banning speech about the plaintiff are generally unconstitutional, but that injunctions banning continued unwanted speech to the plaintiff are generally valid. The post Stop-Talking-to-Me Order Against Ex-Landlord Who Kept Texting Ex-Tenant About COVID Vaccines appeared first on Reason.com.

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[Josh Blackman] Today in Supreme Court History: August 5, 1974

8/5/1974: Shortly after the Supreme Court decided United States v. Nixon, President Nixon released the "smoking gun" tape recorded in the Oval office. President Richard Nixon The post Today in Supreme Court History: August 5, 1974 appeared first on Reason.com.

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[Eugene Volokh] Open Thread

What’s on your mind?

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[Josh Blackman] The En Banc 11th Circuit Granted Relief In Drag Show Case Where Justices Kavanaugh and Barrett Did Not

After three years on the "interim" docket, Hamburger Mary will no longer be able to show "adult live performances" to minors.

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[Ilya Somin] Alex Nowrasteh on "Ten Democratic Socialists of America (DSA) Arguments for Socialism and Why They're Wrong"

An insightful critique of ten ideas advocated by leading American "democratic socialists."

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[Josh Blackman] The Fifth Circuit Websites Gets A Glow-Up!

The new design is much improved.

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[Eugene Volokh] Subscribe to the Journal of Free Speech Law

We've been publishing for five years now, and have published 150 articles. You can see new articles by following us on Twitter (@JournalSpeech), using our RSS feed, or subscribing to our email updates at journalspeech.substack.com. The post Subscribe to the Journal of Free Speech Law appeared first on Reason.com.

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[Eugene Volokh] No Liability for Parents Over Their Son's Surreptitiously Recording Sex Acts in Their Home

"Suing individuals because they have a homeowner's insurance policy or are collectible defendants is not a proper purpose for a lawsuit."

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[Eugene Volokh] ChatGPT Editing Adding Hallucinations to Otherwise Accurate Material?

From Friday's Connecticut Supreme Court decision in Tov Realty LLC v. Suarez: The record and the representations to this court at the show cause hearing explain the facts concerning the relevant filings. Attorney Gottlieb initially used LexisNexis to conduct the legal research necessary to draft his public interest appeal applications and the briefs that followed. He verified the accuracy of the quotations and citations in the initial rough drafts using the Shepard's Citations Service on LexisNexis. He then copied and pasted those drafts into ChatGPT, a generative AI program, to make his brief writing process more efficient and to improve the quality of the final written product. Unbeknownst to Attorney Gottlieb, the drafts produced by ChatGPT added new case citations or altered existing case citations, making the final documents filed in this court inaccurate and misleading. Because the hallucinations created by ChatGPT did not affect the substantive accuracy of the legal propositions contained within the filings, which remained well established and correct, the AI generated changes did not prompt Attorney Gottlieb or his law firm colleagues who reviewed the documents to verify the supporting citations a second time. Attorney Gottlieb became aware of the erroneous citations only when various amici curiae, represented by the Jerome N. Frank Legal Services Organization, apprised this court and counsel of what appeared to be "hallucinated" case citations in the briefs. Attorney Gottlieb subsequently filed errata sheets and corrected the briefs in both cases. We then issued a sua sponte order requiring Attorney Gottlieb and the law firm to explain the cause of the erroneous material. In the memorandum filed in response to that order, Attorney Gottlieb and the law firm expressed their deep regret for the errors. They explained that the errors were caused when Attorney Gottlieb, whose original legal research and citations had been verified, used ChatGPT to improve the organization and quality of his rough drafts and that he was unaware that ChatGPT would make substantive changes to that material. I've heard about this happening in other cases, and have no reason to doubt the factual account. The moral: If you want to use AI tools for editing (I've heard from people that they often give good editing advice), (1) re-cite-check as well as proofreading everything after the AI editing pass, or (2) ask the AI to offer editing suggestions that you can then manually decide to enter or not. The sanctions, by the way, were: * In addition to the twelve (12) hours of minimum continuing legal education required annually by Practice Book § 2-27A, Attorney Gottlieb shall complete six (6) hours of continuing legal education in the areas of ethics and law office management, three (3) hours of which must concern the use of generative AI. * Attorney Gottlieb and the law firm each shall donate $1000 to the CT Bar Institute, Inc., to support its efforts to provide the legal profession with instruction in the areas of legal ethics and law office management, and regarding the role of generative AI in those areas. * Attorney Gottlieb and the law firm shall file a report under these docket numbers in this court via the Office of the Appellate Clerk, along with a courtesy copy to the Statewide Grievance Committee, stating whether they have complied with these sanctions within six months of the issuance of this order. * Attorney Gottlieb shall comply with the reciprocal discipline obligations of any other jurisdiction in which he has been admitted to practice law. * This order will be posted on the Judicial Branch website, and a courtesy copy will be provided to the Statewide Grievance Committee. We emphasize that this courtesy copy is not a referral for further disciplinary action. The post ChatGPT Editing Adding Hallucinations to Otherwise Accurate Material? appeared first on Reason.com.

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[Eugene Volokh] ~$550K Award Related to Doctor's False Alleged Accusation of Nose Punch by Colleague

Some excerpts from Thursday's long decision in Zafar v. Saghier, by Texas Court of Appeals Justice Wade Birdwell, joined by Justices Mike Wallach and Brian Walker: Appellant Sunbal Zafar claimed that her fellow doctor, Appellee Sadaf Saghier, hit her in the nose at the medical practice where they worked, and she reported the alleged assault to the Texas Medical Board and to the police. But the Texas Medical Board dismissed Zafar's complaint, and although the police initially arrested Saghier for felony aggravated assault, the district attorney's office later reduced and then dismissed the criminal charges against Saghier. So, when Zafar sued Saghier for civil damages for the alleged assault, Saghier counterclaimed for malicious prosecution and intentional infliction of emotional distress. The jury sided with Saghier and awarded her $1 million in compensatory and exemplary damages. In what we construe as three overarching issues, Zafar asserts that (1) the evidence was insufficient to support the compensatory damages awarded for Saghier's criminal attorney's fees and mental anguish; (2) the award of exemplary damages was premised on a defective jury charge and, regardless, must be adjusted in accordance with the statutory cap if this court reverses any of the compensatory-damage awards; and (3) the trial court abused its discretion by allowing Saghier's counsel to ask her leading questions. Saghier concedes that the damage award for her criminal attorney's fees lacked sufficient evidentiary support, and the record reveals that the award for future mental anguish also lacked sufficient evidentiary support. These flawed awards, in turn, require a reduction of the exemplary-damages award in accordance with the statutory cap. With these modifications of the judgment, we will affirm…. The pivotal incident occurred at the parties' medical practice in April 2022. According to Zafar, Saghier grabbed her hand "hard," alluded to a rent-related issue, and hit her in the face. {Zafar was taken to the hospital, where tests revealed a nasal fracture. The fracture's age was ambiguous and disputed.} According to Saghier, she never touched Zafar or referenced rent; instead, Zafar "pounded hard on the table," alluded to a prior complaint that Saghier had made about Zafar to the practice's leadership {regarding damaged office items and Saghier's suspicion that Zafar had caused the damage}, then screamed and accused Saghier of hitting her. Saghier immediately called both the practice's leadership and 911. Police body-camera footage from that day showed Saghier relaying her side of the story, asking the police to swab her hands and Zafar's nose to establish her innocence, and attempting to diffuse tension between Zafar's husband and her own (both of whom arrived at the medical practice after the incident). Saghier later testified that, as soon as the police responded to Zafar's accusation of assault, she "kn[e]w what [wa]s at stake"—her "whole life[; her] license [wa]s at stake." By the time she arrived home that evening, she was "desperate" for professional mental help. She explained to the jury that she had "two small kids" and was "the breadwinner of the family," and after the incident, she "[c]ould not cry … [or] sleep" and "d[id]n't even know how to handle this." She found a psychiatrist who had availability "the very next day" and scheduled an appointment. The psychiatrist's records—which were later admitted into evidence at trial—described Saghier as "very anxious" and "tearful" at the appointment. The records noted that Saghier was suffering from "poor appetite, poor sleep, [and] anhedonia," i.e., "los[s of] the ability to enjoy the things [she] usually d[id]." Meanwhile, the practice's leadership told Saghier "not to come back to the office," and Zafar reported Saghier's alleged assault to the Texas Medical Board. Within a day of the incident, a surgical facility where Saghier practiced had "precautionarily suspended" her privileges due to "an immediate risk of substantial harm to the health and safety" of those who worked there. The surgery center asked Saghier to undergo a fitness-to-practice evaluation, and Saghier took a leave of absence to do so. But the fallout continued. Less than two weeks after the incident, Zafar hired an attorney to sue Saghier for assault, and the attorney sent Saghier a letter informing her of the impending litigation and asking her to preserve evidence. Saghier's psychiatrist's notes reflected that, not long thereafter, Saghier began suffering from "nightmares, crying spells, [a] sense of helplessness, insomnia, [and] flashbacks," as well as "intrusive, invasive, or unwanted thoughts" and "feelings of loneliness, isolation, hopelessness/worthlessness." The psychiatrist diagnosed Saghier with "PTSD" and "[a]djustment disorder with mixed anxiety and depressed mood." She prescribed Saghier medication for her anxiety and PTSD. As this was happening, Zafar was also working with the police to pursue Saghier's criminal prosecution. About two months after the incident—in June 2022—the police issued a warrant for Saghier's arrest for felony aggravated assault. Saghier later told the jury that, in an attempt to protect her children, she waited until they went to sleep before turning herself in on the warrant. She spent the night in jail where, according to Saghier, she was strip-searched and had her mugshot taken. She described jail as the "[w]ors[t] experience" and recounted an illustrative anecdote about being told that "there [had been] a murder in the room [she was in] between the two inmates," and the "other people [in the jail room with her we]re laughing about murder cases, [and about] how they have been in and out." The district attorney later reduced the charge against Saghier to a misdemeanor. But the reduced charge did not stop Saghier's mugshot from spreading throughout her social and professional community, nor did it spare her the expenses associated with defending herself in court, such as the cost of paying her criminal defense attorney. {Saghier's fitness-to-practice evaluation report reflected that "Dr. Zafar's husband ha[d] shared her mugshot with their social group."} These expenses were particularly difficult given the limitations on Saghier's ability to practice medicine. Although Saghier had completed her fitness-to-practice evaluation and a psychiatrist—Dr. Douglas Crowder—had found her fit to practice, Saghier lost her privileges at several surgical facilities due to the criminal case. Plus, between the criminal case and the still-pending Texas Medical Board complaint, she had trouble securing malpractice insurance. Ultimately, about nine months after the alleged incident—on the day before her criminal case was set for trial—the district attorney's office dismissed the charges against her. Although Saghier objected to the dismissal out of a desire to prove her innocence, the trial court overruled her objection. After Saghier's criminal case was dismissed, she stopped seeing her psychiatrist. The psychiatrist had recommended that she continue therapy, noting that "recovery from … trauma of this nature can take months to years," but Saghier's expenses were adding up. As Saghier later told the jury, the psychiatrist visits were "self-paid, cash," and Saghier "could not afford any more" appointments. But Saghier's troubles were not over. It took another four months before the Texas Medical Board completed its investigation and dismissed Zafar's complaint for lack of evidence. And even then, because some surgical facilities denied privileges to anyone who had either been charged with a crime or failed to promptly report being charged with a crime, Saghier permanently lost her privileges at three surgical facilities…. Additionally, Zafar's civil suit against Saghier was still pending. So, at that point, Saghier counterclaimed for malicious prosecution and intentional infliction of emotional distress. At trial, Saghier described Zafar's accusation as a "nightmare," and she testified to everything she had been through—her termination from her medical practice, her loss of privileges at three surgical facilities, her medical license's suspension, her arrest on false charges, her strip-search and night in jail, her mugshot's proliferation in her community, her depletion of savings, her inability to provide for her family, and her need for psychiatric help through it all…. [T]he jury found that Zafar had both maliciously prosecuted Saghier and intentionally inflicted emotional distress upon her. It assessed $462,022 in exemplary damages for Zafar's malicious prosecution…. [It] awarded $537,978 in compensatory damages for both torts, including $15,095 for Saghier's criminal attorney's fees; $12,875 for other economic damages; $255,004 for Saghier's past mental anguish; and $255,004 for Saghier's future mental anguish. The trial court rendered judgment accordingly, awarding Saghier an even $1 million in damages…. The court affirmed some parts of the award but not other parts, ultimately concluding: Because we have concluded that there was legally insufficient evidence to support the jury's awards of $15,095 in economic damages for Saghier's criminal attorney's fees and $255,004 in noneconomic damages for Saghier's future mental anguish, Saghier's remaining economic damages total $12,875 (for past medical expenses and miscellaneous criminal-prosecution-related fees) and her noneconomic damages total $255,004 (for past mental anguish). Saghier's exemplary damages are thus statutorily capped at $280,754. As I count it, this brings the award to a titch under $550K. For more on the legal analysis, see the opinion. The post ~$550K Award Related to Doctor's False Alleged Accusation of Nose Punch by Colleague appeared first on Reason.com.

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[Eugene Volokh] Oklahoma Anti-Stalking Law Bars Certain Unwanted Speech to Target, not Speech About Target

Oklahoma's highest criminal court reverses a 3-year sentence for "posting a video rant about [defendant's] ex-wife."

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[Eugene Volokh] Court Upholds Stop-Posting-About-Your-Ex-Order, Based on Past Threats

From King v. Brown, decided Friday by Kentucky Court of Appeals Judge Sara Walter Combs, joined by Judges Glenn Acree and Jacqueline Caldwell: Appellant, Kelly King (King), appeals from the entry of an Interpersonal Protective Order (IPO) against her [on the petition by] Kendra Brown, … a former partner in a relationship. Brown … filed a petition for order of protection against King, a former partner in a relationship. The petition alleged that King had been asked multiple times not to contact Brown; that King had used her large social media following to spread and to elicit hate speech toward Brown; that there was a separate, ongoing harassment investigation case; that in March 2022, King followed Brown out of a bar and threw a drink on her; that in November 2022, King trespassed on Brown's property and refused to leave until police arrived; that on November 1, 2023, King recorded Brown while jogging and made a harassing TikTok; that in May 2024, King showed up at the funeral of Brown's grandmother despite repeated pleas for no contact; that in September 2025, King recorded and posted a video on TikTok of her (King's) fiancée "licking and rubbing" on Brown's car. Brown stated that she feared for her safety in light of King's numerous attempts to contact and harass her—as well as King's criminal history. The trial court entered an order that provided, among other things, In order to assist in eliminating future acts of domestic violence and abuse, dating violence and abuse, stalking or sexual assault, No Post on social media referencing Ms. Brown, "Ex" or using her name in any likeness or property…. No 3rd party, social media or electronic contact. The trial court's findings stated: Clear from the testimony and evidence that this was a violent and tumultuous relationship and there were multiple physical altercations…. There were additional acts or threats of violence that occurred in public at the hands of Ms. King as testified to by Ms. Brown and witnesses including holding her over a railing in a bar to the point that Ms. Brown was concerned she would fall, throwing drinks on her and her friends or acquaintances, thumping or hitting her in the head with the [sic] a balled finger and getting into a physical fight with someone that Ms. Brown was associating with in a bar in front of Ms. Brown, following her and a friend to her house and barging in. These all seem to be surrounding times when Ms. Brown states she would attempt to leave the relationship or spend time with other friends away from Ms. King…. [The] Court finds Ms. Brown's testimony credible and that these additional acts or threats of violence did occur. This certainly would place Ms. Brown in imminent fear of physical injury …. Ms. King has shown up to Ms. Brown's home on multiple occasions and while Ms. Brown was again generally cordial, she did tell Ms. King to leave and on the second such occasion had to call the police to [sic] Ms. King to leave. This is consistent with Ms. Brown filing for an order of protection after these events in November of 2022 which was denied by the reviewing Court at that time. And the trial court added this about King's social media commentary about Brown: Ms. King has a history of creating social media content specifically about Ms. Brown and her [King's] other exes…. Since this relationship … has ended, Ms. King has engaged in significant tik tok activity regarding Ms. Brown as well. While she never directly uses Ms. Brown's name, her videos include pictures of Ms. Brown and her new paramour, videos of Ms. Brown running in her neighborhood, tik tok lives specifically about this case and hearings, and made a video … of her [King's] partner licking and rubbing on Ms. Brown's car two years after the end of the relationship. All of these videos which include Ms. Brown's likeness refer to Ms. Brown as "the ex." She [King] then makes numerous vaguely threatening posts or posts complaining about "the ex" or "exes" generally which are threatening and angry in nature including at least one where she references a serial kill and shows a chainsaw in the back of her car and one where she lists as her favorite activities are harassing exes on Tik Tok. These posts have solicited responses from her numerous followers some including things like "we will help bury the bodies." Ms. King states that all of this was just her expressing her first amendment right and no reasonable person would find this to be a threat to their physical safety. However, the Court finds it telling that Ms. King's paramour expressly stated they would not have made the video of the car if Ms. Brown or others were present in the parking lot, and they would never encourage a group of people to surround and watch them do this or harass Ms. Brown and bully her. However, Ms. King posted this to a public tik tok account with over 100 thousand followers which did in fact solicit harmful and threatening comments about Ms. Brown. One does not get to do behind a computer what they know to be harmful and threatening if done in person. Ms. King's paramour also specifically states that this is Ms. King's "niche" online and that she has culminated [sic] this following due to her being real and authentic and sharing her real and authentic experiences and feelings. One does not get to claim their online self is real and authentic and then claim the threatening behavior they demonstrate is not real and should not intimidate the people it is directed at. While this Court respect's [sic] Ms. King's free speech, you can't create and exploit a social media persona that you claim to be "real and authentic" and centers around you being a jilted and potentially violent person obsessively angry with your exes, looking for revenge or retribution and then claim your exes should not fear that you are in fact a violent and jilted ex who continues to be obsessively angry and potentially violent towards them. Especially not when you have, in fact, been physically violent during the relationship towards that person. Therefor [sic] the Court believes that an Order is necessary to protect against ongoing acts or threats of DV. The appellate court upheld the order, rejecting defendant's First Amendment argument: [King argues] that the family court imposed an unconstitutional prior restraint and failed to make sufficient findings to determine whether King's social media posts are protected by the First Amendment. We disagree. See Wedding v. Harmon (Ky. App. 2016) (Where family court entered order prohibiting father from sending emails about parties' divorce and parenting matters, this Court rejected father's prior restraint argument and held that emails were constitutionally-unprotected conduct intended to harass, annoy, or alarm mother; injunction was narrowly drawn and best interests of children were supported by limitation on the father's speech.). In the case before us, the family court made sufficient findings as set forth above. Substantial evidence supports those findings. The court did not believe King's testimony that she believed her TikToks were constitutionally protected speech. The court explained that King cannot claim that her social media persona—as a jilted, potentially violent, and obsessively angry ex—is real and authentic, and then reverse that assertion and claim that the threatening behavior she demonstrates is not real—especially in light of King's violence towards Brown during their relationship….. Jennifer McVay Martin Lexington represents Brown. The post Court Upholds Stop-Posting-About-Your-Ex-Order, Based on Past Threats appeared first on Reason.com.

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[Eugene Volokh] "Viewpoint Diversity" Conditions as a New Fairness Doctrine

My new article, now out in the George Mason Law Review.

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[Josh Blackman] Today in Supreme Court History: August 4, 1961

8/4/1961: President Barack Obama's birthday. He would appoint two Justices to the Supreme Court: Sonia Sotomayor and Elena Kagan. President Obama's appointees to the Supreme Court The post Today in Supreme Court History: August 4, 1961 appeared first on Reason.com.

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[Eugene Volokh] Open Thread

What’s on your mind?

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[Ilya Somin] Twenty-five States, Led by Oregon, File Lawsuit Challenging Trump's Section 301 Tariffs

Oregon also played a key role in previous tariff litigation.

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[Ilya Somin] Prospective Legal Challenges to Trump's Section 338 Tariffs Against Canada

A guest post by Georgetown legal scholars Peter E. Harrell and Jennifer Hillman.

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[Eugene Volokh] Our Friend with the "Attractive, Busty Jewess" Problem Drops Case Against Harvard Rather Than Naming Himself

Readers of the blog may recall a certain John Doe who is suing Penn, Dartmouth, Harvard, and Berkeley for alleged discrimination; he argues, among other things, that "in service of their goal to [exterminate] or enslave all non-Jews, the Jewish supremacists discriminate [against] non-Jewish whites," including him. He also seeks to proceed under a pseudonym, partly because he claims a fear of physical harm: So far, courts have rejected his pseudonymity claim, and he's appealing the decision in his Penn case to the Third Circuit. But in the meantime, what to do about his other cases? Well, in the Harvard case, he asked Judge Allison Burroughs, who had denied his pseudonymity motion, to stay that case pending appeal. No, the judge held on May 20: Plaintiff … requests a stay of his disclosure requirements pending interlocutory appeal of the Court's denial of his motion to proceed under a pseudonym. "In determining whether to grant a stay, courts consider: (1) [W]hether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." The first two factors are most important. Plaintiff has made essentially no showing, certainly not a strong showing, that he will succeed on the merits, and he has provided no credible, non-speculative argument that he will be irreparably injured absent a stay. Defendants have taken no stance as to whether a stay would cause them injury, and the Court presumes that it would not. Finally, as explained above, the public has a strong interest in transparency, weighing against Plaintiff's request for a stay…. "[T]he people have a right to know who is using their courts." … Accordingly, Plaintiff's request for a stay is DENIED. Plaintiff is directed to file a notice of his legal name and address no later than June 2, 2026. He then sought a stay pending the appeal of his Penn case, but the judge again said no (on July 15): Plaintiff's motion to stay this proceeding pending resolution of his appeal in the Third Circuit is DENIED. While "the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort," the Court finds that a stay is not warranted here for the reasons set forth in the Court's May 20, 2026 order. Though a trial court may stay an action pending the resolution of independent proceedings, this Court is not bound by whatever resolution Plaintiff may achieve in the Third Circuit, and the Court finds that a stay of Plaintiff's disclosure requirements in the instant case would not promote the interests of judicial efficiency. Plaintiff is ordered to file a notice of his legal name and address no later than July 29, 2026. Failure to timely comply with the Court's order will result in dismissal of the action. And today, Judge Burroughs dismissed the case: In February 2, 2026, the Court ordered Plaintiff to file a notice of his legal name and address no later than February 16, 2026. The Court has since afforded Plaintiff multiple extensions of that deadline, including the latest extension on July 15, 2026, when the Court ordered Plaintiff to file a notice of his legal name and address no later than July 29, 2026, and provided notice that failure to comply with the Court's order would lead to dismissal of this action. As of August 3, 2026, Plaintiff has not filed a notice of his legal name and address. Accordingly, this action is hereby DISMISSED. Immediately after that, Doe filed a notice of voluntary dismissal of the Harvard case. Again, the Penn appeal remains pending. The post Our Friend with the "Attractive, Busty Jewess" Problem Drops Case Against Harvard Rather Than Naming Himself appeared first on Reason.com.

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[Eugene Volokh] Journal of Free Speech Law: "Positive Obligations, Hate Speech, and the Reconfiguration of Free Expression at the European Court of Human Rights," by Natalie Alkiviadou

The article is here; the Abstract: This paper examines how the European Court of Human Rights' (ECt­HR or Court) hate speech jurisprudence has been structurally reoriented by the Court's response to an increasing number of applications brought by victims of hate speech. Whereas earlier case law predominantly assessed hate speech under Article 10 of the European Convention on Human Rights, focusing on the permissibility of restrictions on expression, recent victim-initiated claims have directed the ECtHR's analysis towards Articles 8 and 14 and thus towards the question of State responsibility for pro­tec­tion against harm caused by third-party speech. Through a reading of the ECtHR's case law, this paper shows how the Court's response to this applicant-driven expansion has recalibrated the balance between dignity, equality, and freedom of expression. The paper argues that the resulting framework risks limiting the doctrinal safeguards traditionally associated with Article 10 analysis. In addition, there has been an increasingly expansive understanding of who qualifies as a "victim" of hate speech, extending this qualification beyond direct targets who are in protected groups to include individuals who are merely associated with such groups. The paper argues that the Court's expanding expectation of positive obligations owed by States to their citizens in relation to the exercise of their rights may incentivize over-intervention by domestic authorities and chill legitimate public debate. The post Journal of Free Speech Law: "Positive Obligations, Hate Speech, and the Reconfiguration of Free Expression at the European Court of Human Rights," by Natalie Alkiviadou appeared first on Reason.com.

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[Jonathan H. Adler] Gordon-Darby Renews Attempt to Commandeer New Hampshire Through the Clean Air Act

A renewed suit seeking to leverage the Clean Air Act in pursuit of lucrative government contracts.

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[Eugene Volokh] Journal of Free Speech Law: "Jawboning as Collaborative Governance," by Daniel Browning

The article is here; the Abstract: When the government regulates conduct, it does not always do so directly. Increasingly, the government regulates conduct indirectly—by pressur­ing some intermediary to do the direct regulatory work for it. This form of indirect regulation has raised considerable concern in the context of speech regulation. Scholars and activists have sounded alarm bells that this form of indirect speech regulation, typically referred to as "jawboning," often violates the First Amendment because it allows the government to censor expression on the cheap. Indeed, during its 2024 term, the Supreme Court heard two different First Amendment jawboning cases. While one case, Murthy v. Missouri, was dismissed on standing grounds, the Court reaffirmed, in NRA v. Vullo, that coercive jawboning of protected expression violates the First Amendment. Despite jawboning cases taking up a substantial portion of the Court's docket during its 2024 term, little scholarly discussion about jawboning can be found. The scholarly discussion of jawboning that does exist tends to converge on a standard picture—that jawboning is an inherent threat to freedom of expression and that it is, therefore, necessarily normatively undesirable. Thus, while scholars have identified possible perils of jawboning, practically no attention has been paid to the promises. This Article rejects the standard picture. In a nutshell, this Article argues that we ought to be more ambivalent about jawboning, or, in other words, that whether jawboning is normatively desirable turns on a fine-grained contextual analysis that's glossed over by the standard picture. But first, we must define "jawboning," as there is little consensus in the literature about what it even means for the government to jawbone. After surveying various conflicting definitions of jawboning, Part I defines jawboning as a triadic relationship between the government, an intermediary, and some third party, where (a) government official(s) communicate with a private intermediary (b) in a way that pressures—but does not persuade—the intermediary to do something that (c) influences the third party's conduct and where (d) the government official intends to target the third-party's conduct by means of its pressure on the intermediary. Building on the definitional work in Part I, Part II situates jawboning in relation to the broader governance literature. Part II argues that jawboning is a form of collaborative or "new" governance—a public/private regulatory partnership designed to achieve some public regulatory objective. Jawboning is a "third way" between direct government regulation and pure private ordering. After articulating a functionalist framework for evaluating jawboning, Part III explores the conditions under which jawboning, as a form of collaborative governance, is and is not normatively desirable. From this discussion, we see that the normative case for or against jawboning turns on a variety of contextual factors about the regulatory environment that are glossed over by the standard picture. Having laid the descriptive and normative foundations, Part IV turns to First Amendment jawboning doctrine. After identifying two significant deficiencies in existing First Amendment jawboning doctrine, I propose that courts should analyze several factors presently excluded from First Amendment jawboning analysis: (1) the government's motive for jawboning; (2) the value of the targeted expression; and (3) the weakness of the intermediary and, relatedly, the intermediary's independent incentives to regulate third-party speech. The post Journal of Free Speech Law: "Jawboning as Collaborative Governance," by Daniel Browning appeared first on Reason.com.

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