Eugene Volokh's Blog, page 102

[Eugene Volokh] Trump Administration Likely Violated American Bar Association's First Amendment Rights

[A federal court holds that "a series of grants with the ABA that funded services to victims of domestic and sexual violence" were terminated because the ABA had joined a lawsuit against the Administration.]

A bit of legal background: Generally speaking, the government may not cancel contracts with private organizations based on the organizations' First Amendment activities (see, e.g., Bd. of Comm'rs v. Umbehr (1997)). The same is true of cancellation or denial of grants (see, e.g., Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l (2013)). And filing lawsuits is generally seen as protected by the First Amendment right to "petition the Government for a redress of grievances."

Now, from today's opinion by Judge Christopher Cooper (D.D.C.) in American Bar Ass'n v. U.S. Dep't of Justice (what follows is just a short excerpt from a longer analysis):

Last month, Deputy Attorney General Todd Blanche issued a memorandum prohibiting all Department of Justice ("DOJ") lawyers from participating in events sponsored by the American Bar Association ("ABA") on official time. The reason, Blanche candidly explained, was that the ABA had recently joined a lawsuit against the Trump Administration {challenging the Administration's freeze on international development grants to the U.S. Agency for International Development and the Department of State}. The next day, DOJ cancelled a series of grants with the ABA that funded services to victims of domestic and sexual violence. The only explanation offered for the cancellation was a terse statement indicating that the grants "no longer effectuate[ ] … [DOJ] priorities." …

"[T]he First Amendment bars [government] retaliation for protected speech." … The ABA has made a strong showing that Defendants terminated its grants to retaliate against it for engaging in protected speech…. First, the Blanche Memo "openly acknowledges that plaintiff engaged in speech and other activities protected by the First Amendment." It identifies the catalyst for the memo and DOJ's change in policy as to the ABA: "[T]he ABA filed a lawsuit against the United States." And it describes the ABA's history of "tak[ing] positions on contentious legal, policy, and social issues" that "frequently have not aligned with the positions advanced by [DOJ]" and its "litigat[ion] in support of activist causes." This activity is protected under the First Amendment.

Second, DOJ's termination of the grant funding is an action "sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again." …

Third, the ABA's allegations, accepted as true, plausibly plead that the govement's proffered justification for terminating the grants is pretextual, and that the real reason was retaliation. The Blanche Memo explicitly spells out how DOJ will be changing its approach toward the ABA in light of the ABA's lawsuit against the United States. And the temporal proximity between the Blanche Memo and the termination of the ABA's grants is probative of Defendants' retaliatory motive. The Memo may not have mentioned the ABA's grants specifically, but it promised to stop funding ABA events because of the DOJ's duty to be a "careful steward[ ] of the public fisc."

The government claims that it had a nonretaliatory motive for terminating the grants: They no longer aligned with DOJ's priorities. But the government has not identified any nonretaliatory DOJ priorities, much less explained why they were suddenly deemed inconsistent with the goals of the affected grants.

And the government's different treatment of other grantees suggests this justification is pretextual. DOJ did not terminate any other OVW [Office on Violence Against Women] grants, and, at oral argument, the government conceded that other grant recipients continue to conduct similar training functions with OVW money. The government has offered no nonretaliatory explanation for why it continues to fund these other OVW grantees after terminating the ABA's grants, or why these other grantees' projects still effectuate DOJ's priorities while the ABA's do not.

Finally, DOJ also purported to terminate two grants that, by their terms, had already ended, making it even less plausible that DOJ conducted an individualized analysis of whether each grant aligned with DOJ policy. Based on all this, the Court cannot but conclude that the ABA is likely to succeed on its claim that Defendants terminated the agreements because of its protected activity in violation of the First Amendment….

Given that the ABA has established a likelihood of success on the merits of a constitutional claim, it has shown that the balance of the equities and public interest favor an injunction preventing the government from continuing to violate the Constitution.

The court therefore issued a preliminary injunction blocking the termination of the grants.

Brian D. Netter, Christine L. Coogle, Josephine Morse, Kristin Lee Bateman, Pooja Boisture, and Skye Perryman (Democracy Forward Foundation) represent the ABA.

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[Ilya Somin] Trump (Partially) Wins an Alien Enemies Act Case

[In a badly flawed decision, a federal district court ruled that Trump can invoke the AEA because the Tren de Aragua drug gang's activities amount to a "predatory incursion."]

A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

For the last few weeks, there has been ongoing litigation over President Trump's effort to use the Alien Enemies Act of 1798 as a tool for mass deportation. The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Four federal judges - three district courts and Judge Henderson of the DC Circuit - have ruled that Trump's invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for using the AEA) do not qualify as an "invasion" or "predatory incursion."

Yesterday, the Trump administration finally partially won one of these AEA cases, because Judge Stephanie Haines of the Western District of Pennsylvania (a Trump appointee) ruled in ASR v. Trump, that TdA's activities qualify as a "predatory incursion."

Importantly, the judge did not accept the Trump Administration's ultra-broad view of what counts as an "invasion." The focus is on "predatory incursion," a less clear and less well-understood term. Judge Haines rejected both the government's and the plaintiffs' proposed definitions and more or less split the difference between them.  She decided that "predatory incursion" means "a hostile entry into the United States by a cohesive group of individuals, such as a military detachment or a designated Foreign Terrorist Organization, who are united by a common goal of causing significant disruption to the public safety—whether that be the safety of persons, properly, or pecuniary interests—of those within the United States."

This is less bad than accepting a broad definition of "invasion" (a move that would have terrible constitutional implications, such as giving the federal government the power to suspend the writ of habeas corpus at all virtually all times). It is also a bit less bad than adopting the administration's interpretation of "predatory incursion," which would include any illegal migration or drug smuggling.

Nonetheless, I still think Judge Haines got this question seriously wrong. Among other things, her definition of "predatory incursion" is broad enough to render "invasion" superfluous. By her definition, any "invasion" would also be a "predatory incursion." Any military attack or "operation of war" (as James Madison defined "invasion" in his Report of 1800 discussing the Alien and Sedition Acts, of which the AEA was a part) necessarily involves  "a hostile entry into the United States by a cohesive group of individuals…. who are united by a common goal of causing significant disruption to the public safety." A longstanding rule of interpretation holds that courts should not interpret statues in a way that renders any part superfluous. This is particularly true of the "invasion" provision of the AEA, which has traditionally been considered a central element of the statute.

In addition, Haines' definition has the implication that the US experiences "predatory incursions" at virtually all times. After all, virtually any organized crime organization of international scope qualifies as "a cohesive group of individuals… who are united by a common goal of causing significant disruption to the public safety" especially if "public safety" includes protection of  "pecuniary interests" (which Judge Haines says it does).  Any organized group engaged in smuggling contraband qualifies! By that standard, the US was constantly undergoing "predatory incursions" during Prohibition, when there was constant illegal cross-border smuggling of alcoholic beverages, and that smuggling surely impacted the "pecuniary interests" of various US businesses that competed with bootleggers. This implication of Judge Haines' definition renders it absurd, and it thus violates the longstanding canon against absurdity.

Four other court decisions (including 2 by conservative judges) have more properly defined predatory incursion as a kind of lower-level military attack, smaller than invasion. This is in accordance with Founding-era evidence, and avoids the redundancy and absurdity created by Judge Haines' definition.

Judge Haines is also unpersuasive in concluding that TdA's "predatory incursion" is undertaken by "a foreign nation or government." She gives too much credence to the Administration's assertions - rejected by its own intelligence agencies - that TdA is operating at the behest of the Venezuelan government. More generally, she errs in following Judge Rodriguez of the Northern District of Texas (who nonetheless ruled against Trump), in giving broad deference to the administration's factual (as opposed to legal) claims about whether an "invasion" or "predatory incursion" has occurred.

I explained why such deference is misguided in my critique of Judge Rodriguez's opinion:

Making determinations about relevant facts is a standard function of the judiciary. If the law says the government is allowed to do X whenever Y occurs, courts must make a determination on whether Y has actually happened or not. Otherwise, the government could do X anytime it wants simply by asserting Y has happened, even if the claim is false. This is especially dangerous in case of emergency wartime powers that severely curtail civil liberties, like those authorized by the AEA (detention and deportation with little due process, even for legal immigrants). I would add that, under the Constitution, a state of "invasion" allows state governments to "engage in war" in response and the federal government to suspend the writ of habeas corpus (thereby empowering it to detain people - including US citizens - without due process). Such sweeping authority cannot simply be left to the unreviewable discretion of one person. That's the kind of arbitrary royal prerogative the Founders sought to prevent.

It may be reasonable to defer to the executive on factual issues when the evidence is close, and ambiguous, and the government is making use of some kind of superior expertise. But not when the assertion that an "invasion" [or a "predatory incursion"] exists is pretty obviously false, and pretextual.

I would add the same goes for claims that a private organization is actually acting on behalf of a state.

Judge Haines' decision is not all good news for Trump. She also ruled that the government isn't providing detainees adequate notice of their potential deportation, so for now deportation remains on hold for those covered by her ruling (not clear how many people are involved). Furthermore, (like earlier AEA decisions decisions by other judges), she at least implicitly rejected the view that the definitions of "invasion" and "predatory incursion" are unreviewable political questions.

But, overall, this is a poorly reasoned decision on several key points. I hope it will be reversed on appeal.

 

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[Eugene Volokh] First Amendment Challenge to Texas State University Speech Code Can Go Forward

From today's Fifth Circuit decision in Speech First, Inc. v. McCall, written by Judge James Ho and joined by Judges Kyle Duncan and Andrew Oldham:

"Education should not be intended to make people comfortable; it is meant to make them think." Comm. on Freedom of Expression, Univ. of Chicago, Report of the Committee on Freedom of Expression (2015) (quoting President Hanna Holborn Gray).

But according to Speech First, Texas State University has adopted a harassment policy that reflects the opposite principle—and thus conflicts not only with basic pedagogical principles, but also the First Amendment.

Rather than welcome debate, the University prohibits "unwelcome verbal" or "written … conduct." The policy does not define what is "unwelcome," nor what constitutes "verbal" or "written" "conduct." But it appears to forbid speech that some individuals or groups could find uncomfortable—namely, speech about "race, color, national origin, age, sex, religion, disability, veterans' status, sexual orientation, gender identity, or gender expression" that some "reasonable person" could find "offensive" or "hostile."

Speech First contends that this policy will be used to target politically disfavored speech on sensitive topics like abortion, immigration, racial preferences in educational admissions, and transgender ideology. So it brought this suit challenging the policy under the First Amendment.

The district court agreed with Speech First's constitutional concerns. The court noted that Texas State had a "real problem," and that the policy had "critical First Amendment issues," because it would stifle "unpopular opinions" and prevent "students from providing their viewpoint to other students." The court even went so far as to say the policy would create "a communist society." In sum, Texas State was "going to lose" on the merits.

But the district court nevertheless refused to issue a preliminary injunction. Instead, the court pressured Texas State officials to amend the policy. University officials vigorously defended the policy before the district court—and continue to do so to this day. But counsel for the University eventually relented and reluctantly amended its policy. The district court then dismissed Speech First's motion as moot.

We disagree with the ruling below that the University's change of policy renders the request for a preliminary injunction moot….

Speech First is a national membership organization that represents students at Texas State University who wish to voice their perspectives on abortion, immigration, the use of race in educational admissions, homosexuality, and gender identity. Two students believe that abortion and illegal immigration are wrong, that it's racist to take race into account in educational admissions, and that the "gender spectrum" is fictional. A third student agrees with these views and additionally believes that marriage is between a man and a woman. All three students want to engage in "lively, fearless debate and deliberation" with their classmates on these topics. But they fear that they will be disciplined under Texas State's harassment policy. So they reluctantly self-censor….

Texas State argues that Speech First lacks standing to challenge its policy, because the policy doesn't actually prohibit the students from saying what they would like to say, and there's no substantial threat of future enforcement. We disagree. In Speech First, Inc. v. Fenves (5th Cir. 2020), this court concluded that Speech First had standing to sue on behalf of students challenging a speech code at the University of Texas at Austin. We see no reason to reach a different conclusion here….

Texas State contends that the request for a preliminary injunction is moot because the University has voluntarily amended the challenged policy.

To prevail on this theory, however, the University must meet a "stringent" standard. To begin with, "[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways." The University must additionally show that "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."

The University's mootness theory fails on multiple levels. For starters, University officials didn't voluntarily cease their challenged conduct— they backed down only because the district court pressured it to do so.

And even assuming that the doctrine of voluntary cessation applies in this case, Texas State is unable to meet that doctrine's "stringent" standard. Recall that, in Fenves, we adopted a three-factor test for determining whether a university has voluntarily ceased enforcement of a challenged speech code in a manner sufficient to render the dispute moot. We concluded that the dispute was not moot based on "(1) the absence of a controlling statement of future intention; (2) the suspicious timing of the change; and (3) the university's continued defense of the challenged policies."

Following Fenves, we find that all three factors cut against Texas State and preclude a determination of mootness.

First, "the University has not issued a controlling statement of future intention." Here, as in Fenves, Texas State represented to the court that it will not revert to its old policy. But here, as in Fenves, the University has presented no sworn testimony to that effect. Moreover, here, as in Fenves, there's "no evidence" that Texas State's statements to the court will indeed "control[] whether the University will restore the challenged [policy]" "during or after" the "tenure" of the University's present leadership.

Second, the amendment of Texas State's policy was suspiciously timed. The old policy was on the books well before Speech First sued. Here, as in Fenves, "the [U]niversity changed its policies after the complaint was filed." In fact, in this case, the University amended its policy only in response to judicial pressure. So we reach the same conclusion here as we did in Fenves: "The University does not explain the expedient timing of the policies' removal."

Finally, here, as in Fenves, "the University is still defending the legality of its original policies." Texas State officials vigorously defended their policy before the district court. And they continue to do so to this day.

Accordingly, the motion for a preliminary injunction is not moot…. We vacate and remand for the district court to consider the motion for preliminary injunctive relief.

Cameron Thomas Norris, James Hasson, John Michael Connolly, and Thomas Samuel Vaseliou (Consovoy McCarthy PLLC) represent plaintiff. Thanks to Michael Smith (Smith PLLC) for the pointer.

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[Eugene Volokh] AI Hallucination Case Stemming from Use of a Paralegal's AI-Based Research

I blogged yesterday about AI hallucinations in court filings by prominent law firms, as well as a nonexistent source cited in an expert's declaration (the expert works for leading AI company Anthropic, though at this point it's not yet clear whether the error stemmed from an AI hallucination or from something else). But I thought I'd blog a bit more in the coming days about AI hallucinations in court filings, just to show how pervasive the problem is: I'm seeing court decisions about this every few days. And those decisions are likely just the tip of the iceberg, since many hallucinations won't be noted in court decisions, and the great majority of court decisions are state trial court decisions that don't show up on Westlaw.

Here's the first case that showed up in my daily WestClip query related to the subject, an opinion yesterday by Judge Rachel Kovner (E.D.N.Y.) in Ramirez v. Humala:

Plaintiff Ramirez's response letter, … signed by [her lawyer,] Ms. Stillman, cites eight cases. Of the eight, the Court was unable to locate four: (1) London v. Polish Slavic Fed. Credit Union, No. 19-CV-6645, 2020 WL 1275619 (E.D.N.Y. Mar. 17, 2020); (2) Rosario v. 2022 E. Tremont Hous. Dev. Fund Corp., No. 21-CV-9010, 2023 WL 1993700 (S.D.N.Y. Feb. 14, 2023); (3) Paniagua v. El Gallo No. 3 Corp., No. 22-CV-7073, 2024 WL 1046856 (S.D.N.Y. Mar. 11, 2024); and (4) Luna v. Gon Way Constr., Inc., No. 20-CV-893, 2022 WL 826856 (S.D.N.Y. Mar. 18, 2022). The Court ordered Ms. Stillman to either provide copies of the four cases or show cause why she should not be sanctioned for citing nonexistent cases pursuant to Federal Rule of Civil Procedure 11(b) and the inherent power of the Court.

Stillman explained that this originated in the work of her paralegal:

Ms. Ruiz[, Ms. Stillman's paralegal,] explains that she took the initiative to assist with the legal research for the reply and generated the citations at issue "using secondary tools, including public search resources and AI-based research assistants."). Ms. Ruiz did not check that the citations she had generated corresponded to real cases before passing them to Ms. Stillman. Ms. Stillman, in turn, relied on Ms. Ruiz, "a diligent and trusted member" of the team, and "did not independently verify each citation prior to filing."

Federal Rule of Civil Procedure 11(b)(2) provides:

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney … certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: … the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

"A fake opinion is not 'existing law' and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law." Accordingly, the Second Circuit, as well as district courts across the country, have found the submission of nonexistent case citations in filings to the court to constitute sanctionable conduct under Rule 11(b)(2). See, e.g., Park v. Kim, 91 F.4th 610, 613–16 (2d Cir. 2024); Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 461 (S.D.N.Y. 2023); Gauthier v. Goodyear Tire & Rubber Co., No. 23-CV-281, 2024 WL 4882651, at *2–3 (E.D. Tex. Nov. 25, 2024); Wadsworth v. Walmart Inc., 348 F.R.D. 489, 495–96 (D. Wyo. 2025); Dehghani v. Castro, No. 25-CV-52 (MIS) (DLM), 2025 WL 988009, at *4 (D.N.M. Apr. 2, 2025); Nguyen v. Savage Enters., No. 24-CV-815 (BSM), 2025 WL 679024, at *1 (E.D. Ark. Mar. 3, 2025); Bevins v. Colgate-Palmolive Co., No. 25-CV-576, 2025 WL 1085695, at *7 (E.D. Pa. Apr. 10, 2025); Benjamin v. Costco Wholesale Corp., No. 24-CV-7399 (LGD), 2025 WL 1195925, at *6–8 (E.D.N.Y. Apr. 24, 2025).

Ms. Stillman's conduct violated Rule 11. "Rule 11 explicitly and unambiguously imposes an affirmative duty on each attorney to conduct a reasonable inquiry into the viability of a pleading before it is signed." A reasonable inquiry means, at minimum, that attorneys must "read, and thereby confirm the existence and validity of, the legal authorities on which they rely." … "[N]o inquiry cannot be deemed objectively reasonable even if the reliance is placed in an experienced attorney." … Ms. Stillman failed to conduct this minimal inquiry.

Moreover, Ms. Stillman acted with subjective bad faith, as required for the imposition of sua sponte sanctions under Rule 11. Ms. Stillman's failure to make any inquiry at all into the veracity of the cases provided by her paralegal was so "completely without merit" that subjective bad faith may be inferred. See, e.g., Mata, 678 F. Supp. 3d at 464 (finding subjective bad faith where attorney signed a filing despite "not reading a single case cited … and taking no other steps on his own to check whether any aspect of the assertions of law were warranted by existing law"); Benjamin, 2025 WL 1195925, at *7–8 (similar); cf. United States v. Cohen, 724 F. Supp. 3d 251, 258–59 (S.D.N.Y. 2024) (declining to find subjective bad faith where counsel did not read certain citations but sincerely believed they had been provided by co-counsel who had reviewed them).

In similar cases where sanctions have been imposed on attorneys for the submission of nonexistent, AI-generated cases, monetary sanctions have ranged from $1,000 to $5,000. See, e.g., Mata, 678 F. Supp. 3d at 466 ($5,000 sanction); Gauthier, 2024 WL 4882651, at *3 ($2,000 sanction); Wadsworth, 348 F.R.D. at 498 ($3,000 sanction for the most culpable attorney; $1,000 sanctions each for two less culpable attorneys); Dehghani, 2025 WL 988009, at *5 ($1,500 sanction); Nguyen, 2025 WL 679024, at *1 ($1,000 sanction); Benjamin, 2025 WL 1195925, at *9 ($1,000 sanction). Courts have also imposed nonmonetary sanctions including referral for attorney discipline, see, e.g., Park, 91 F.4th at 616, revocation of an attorney's pro hac vice admission, see, e.g., Wadsworth, 348 F.R.D. at 498, and mandatory CLE training on the use of AI in the legal field, see, e.g., Gauthier, 2024 WL 4882651, at *3.

A sanction on the low end of the spectrum is warranted here as a result of Ms. Stillman's prompt admission of error, her and Ms. Ruiz's apologies to the Court, and Ms. Stillman's averment that she is "conducting a full internal review of our citation practices and research protocols" to ensure that "any research-based citations in future drafts" will be "pulled directly from Westlaw or PACER and verified by a supervising attorney." Given these circumstances, a sanction of $1,000 is sufficient but not more than necessary to serve the deterrence purposes of Rule 11.

The court also concluded that the law firm was jointly responsible for the sanction; that's not practically important here, because the firm appears to be Ms. Stillman's own, but it may be relevant in other cases. And the court also noted that, "[c]onsistent with common practice, Ms. Stillman shall also inform her client … of these developments by serving a copy of this order on her client."

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[Ilya Somin] New Republic Podcast Interview on Our Case Against Trump's "Liberation Day" Tariffs

[Greg Sargent of the New Republic interviewed me.]

(Illustration: Eddie Marshall | Tupungato | Dreamstime.com | Chris Kleponis | CNP | picture alliance | Consolidated News Photos | Newscom)

Yesterday, Greg Sargent of the New Republic interviewed me for his Daily Blast podcast about the case against Trump's "Liberation Day" tariffs filed by the Liberty Justice Center and myself on behalf of five US businesses harmed by this abusive policy. The case was argued before the US Court off International Trade yesterday.

The podcast, which runs about twenty minutes, is available here. We discussed some o the dangers of Trump's tariff policies, the state of the case,  and what we learned about the Court's views from what was said at oral argument.

 

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[Paul Cassell] Should Funding Crime Victims' Rights Be a Justice Department Priority?

[Yes! Funding crime victims' rights initiatives is a useful measure for ensuring that the criminal justice system focuses on protecting victims, which should always be a high priority.]

Recently, of course, the Trump Administration has been searching for ways to reduce federal government spending, searching for wasteful or duplicative programs. As part of that comprehensive effort, the Justice Department recently announced that some of its programs will be cut, including some programs involving services for crime victims. Catholic University law professor Mary Leary has recently published this op-ed calling attention to the cuts and urging the Department to exercise caution in cutting these programs. While I don't know the details as well as Professor Leary does, I want to join her in generally urging the Department to maintain as much funding as possible for crime victim support, particularly for legal services to victims in criminal cases.

I've seen news reports that Attorney General Bondi is restoring some funding that was initially slated to be cut. I hope that some of the other funding can be restored as well. And, more important, going forward it is critical that funding for crime victims' services continues to be one of the Justice Department's priorities.

As one example of the cuts, the National Crime Victim Law Institute (NCVLI) had a substantial part of its funding slashed. In 2004, funding for NCVLI was linked to the passage of the Crime Victims' Rights Act (CVRA). Since then, NCVLI has helped establish legal clinics in a number of states across the country, including in my home state of Utah. These clinics assist crime victims to protect their rights in criminal proceedings. I discuss some of these long-standing and important efforts by the legal clinics in my article about the history of the Crime Victims' Rights Movement (at pp. 93-94).

One of the often-overlooked benefits of supporting crime victims in protecting their rights in criminal cases is that it allows an independent voice to be presented. Victim service providers help to amplify that voice, by supporting efforts of crime victims to present arguments that might otherwise be overlooked—creating a valuable and independent perspective on how criminal cases should proceed. An example comes from an amicus brief, which I helped NCVLI, the National Center for Victims of Crime (NCVC), and other crime victims' rights organizations to file. This brief supported Dr. Carter Page's motion to be recognized as a "crime victim" during the sentencing of Kevin Clinesmith. Clinesmith was an FBI agent who made false and material misstatements in a high-profile case. Specifically, Clinesmith provided false statements during the Crossfire Hurricane investigation into whether individuals associated with the Donald J. Trump for President Campaign were coordinating activities with the Russian Government. Clinesmith lied in an application to the Foreign Intelligence Surveillance Court (FISC) to renew a FISA warrant to surveil Dr. Page's private communications. Clinesmith's false statements resulted in a warrant application that the FISC approved without having before it all relevant information.

My amicus brief for crime victims' rights organizations explained why Dr. Page was directly and proximately harmed by Clinesmith's interference with the fair judicial consideration to which he was entitled. This harm made Dr. Page a "crime victim" with protected CVRA rights. Accordingly, the organizations argued (without addressing, one way or the other, the merits or demerits of the Crossfire Hurricane investigation) Page was entitled to speak at Clinesmith's sentencing. The brief explained:

This criminal case has been widely discussed across the country, with strongly held and differing views resolutely expressed. This brief, however, is entirely agnostic on any such views and any resulting political ramifications. Instead, this brief takes a more limited—but extremely important—foundational procedural position. Amici believe that in enacting the CVRA, Congress required this Court to hear from any victim who was harmed by the Defendant's crime, with the definition of "victim" being expansive. And it is precisely because differing views exist about this case that hearing from the victim here is extremely important. If this Court grants Dr. Page the opportunity to provide a victim impact statement before it imposes sentence, then the public will have greater confidence in the case's outcome—which is one of the reasons why Congress included victims in the criminal justice process by enacting the CVRA.

The issue was squarely presented to the district judge handling the matter, Judge James Boasberg, who surprisingly ducked the issue. Judge Boasberg ruled that he would allow Dr. Page to speak at sentencing for ten minutes as a matter of discretion, rendering it unnecessary for a formal determination of whether Dr. Page was a "crime victim." But the important point is that, through crime victim advocacy, an additional perspective was heard on the how false warrant applications can have far reaching harms—highlighting an issue that otherwise might not have received judicial attention.

NCVLI also joined with Brad Edwards and me, when we advocated for victims of Jeffrey Epstein's sex trafficking organization. A Florida district court rejected the victims' efforts to throw out a non-prosecution agreement blocking prosecution of Epstein's co-conspirators. We sought review in the Eleventh Circuit. And NCVLI filed an excellent amicus brief, arguing that Epstein's victims should be able to press the case for prosecuting Epstein's co-conspirators in Florida federal court. (Ultimately, Epstein's lead co-conspirator, Ghislaine Maxwell, was successfully prosecuted in the Southern District of New York.)

By highlighting NCVLI and NCVC, with whom I have worked frequently, I don't mean to overlook many other crime victim service providers, including other legal service providers. These organizations form a vital part of contemporary criminal justice efforts to ensure that crime victims' voices are heard. As Professor Leary points out in her op-ed, the modern crime victims' rights movement traces its roots back to President Reagan's 1982 Task Force on Victims of Crime. The Task Force found that the nation's criminal justice system was "appallingly out of balance" for victims, with a "neglect of crime victims" that was "a national disgrace." The Task Force identified the need to have Congress provide federal funding "to assist in the operation of federal, state, local and non-profit victim/witness assistance agencies that make comprehensive assistance available to all victims of crime." That recommendation remains just as valuable today.

I began this post with a question: Should funding crime victims' rights be a DOJ priority? Ultimately, each Administration and each Attorney General will have to answer that question for themselves. Fortunately, for this Administration, it appears that the answer is straightforward. President Trump has promised his Administration's "unending support to every victim of crime." As the process of reviewing crime victims' funding moves forward, I hope that organizations providing legal services to victims in criminal cases—such as NCVLI, NCVC, and others—will receive the support that they deserve.

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[Josh Blackman] Vice President Vance Will Look For SCOTUS Nominees With "Real Courage" Who Have "Stood Up To The Crowd"

[Vance mentions Justices Thomas and Alito as exhibiting this courage, but none of the Trump appointees.]

Over the years, I have written at length about judicial courage. And I'm not alone. Both President Donald Trump and Vice President Kamala Harris have cited this virtue. Now, Vice President J.D. Vance has done the same.

Hugh Hewitt interviewed Vance about what he would look for in a Supreme Court nominee. Vance replies that a Justice should have demonstrated "real courage" by standing up to the crowd. Critically, they must identify a time in which they faced that sort of pressure, and did not back down. It is not enough to talk the talk; you have to walk the walk.

HH: "I know Vice President Pence, when he was serving in your office, he had the last interview with every Supreme Court nominee potential. And if you are in that position down the road, what do you want to know about a Supreme Court nominee?

[Vance:] Oh, that's a good question. I've never been asked that question, Hugh. You always ask the best questions, man. But, you know, I guess what I would try to understand is how persuadable they are by the mob. Because what we've learned from our Supreme Court over the last 10, 15 years, but especially over the last few years, is that the mob really comes after these guys for high-profile decisions. And obviously, you don't want to prejudge an outcome, but I just want a person with real courage. I think this is what makes Alito and Thomas so special, is that they're just willing to stand in defiance of a lot of incredible media and social pressure. I mean, if you're in the Supreme Court, you are literally inside the beltway. You consume beltway media. That's who you see day to day. You have to have a particular special character. And so I guess I'd ask some questions that try to tease that out a little bit. I'd ask them, you know, when have they ever stood up to the crowd? When have they ever, you know, had people attack them for their views? And if they've never, ever had to stand up to public pressure, they're probably not the right person for the Supreme Court."

Vice President Vance is 100% correct. It is telling that Vance did not identify any of the Trump appointees as demonstrating judicial courage.

I would also point to Judge Ho's recent interview in the Wall Street Journal. Ho explains that judges cannot fear being booed:

Without naming names, Judge Ho complains about "fair-weather originalists" on the bench: "If you're only an originalist when it leads to the results you want to reach, then you're not really doing originalism at all." Even when judges want to follow the law, they may face temptations to do otherwise. "It's been said that judges are like umpires and referees," Judge Ho says, alluding to Chief Justice John Roberts's 2005 confirmation hearing, in which he promised to "remember that it's my job to call balls and strikes."

Judge Ho doesn't find that metaphor comforting. He says actual umpires tend to be biased in favor of the home team. He refers me to a 2011 book, "Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won." The authors note that home teams have an edge in every major sport and argue, as Judge Ho summarizes it, "that the leading cause of home-field advantage is the referees, and it's because the referees are worried about the booing of the crowd." I read the chapter and found the evidence credible. The home crowd in Judge Ho's analogy isn't the spectators in the courtroom but "cultural elites," who cheer as well as boo.

Ho connects this theme with the Chief Justice's ongoing whirlwind tour to save the Republic. A group of elite New York lawyers give Roberts a round of applause, so he obviously thinks he is on the right side of the issue. But in reality, the crowd is just working the refs.

Five days after I interviewed Judge Ho, Chief Justice Roberts spoke at an anniversary celebration for the U.S. District Court in Buffalo, N.Y. He said the judiciary's role is "to obviously decide cases but in the course of that to check the excesses of Congress or the executive, and that does require a degree of independence."

"At that," the New York Times reported, "the crowd applauded."

"In sports there's a term for this, right?" Judge Ho says. "It's known as 'working the refs.' And this is a phenomenon that I've seen affect judges throughout my career."

I am currently working on essay about the Chief's role in causing our current morass. Stay tuned.

The post Vice President Vance Will Look For SCOTUS Nominees With "Real Courage" Who Have "Stood Up To The Crowd" appeared first on Reason.com.

[Eugene Volokh] No Injunction for 8th-Grade Student Disciplined for Wearing "Let's Go Brandon" T-Shirt to School

From Senior Judge Christopher Boyko's decision Monday in Conrad v. Madison Local School Dist. Bd. of Ed.:

According to his Verified Complaint, C.C. wore the shirt on November 25, 2024, underneath a flannel shirt. Plaintiff alleges:

The phrase "Let's Go Brandon" communicates criticism of certain media outlets for a well-documented pattern of misreporting facts in a politically biased fashion. In this particular incident, a large crowd at a NASCAR race was heard shouting a profane disdain for then-President Joseph R. Biden, chanting "F*** Joe Biden." The reporter on the scene reported the chant as "Let's go Brandon," as if the chant was actually praise for the winner of the race, whose first name was Brandon. From that point forward, that moment was perceived as a microcosm of a larger problem, and "Lets Go Brandon" became a popular expression of certain people's opinion toward the media and American politics.

Plaintiff alleges C.C. wore the shirt the previous school year without complaint. However, on this particular day, Defendant Krista Ferini, a teacher and registered democrat, told C.C. to "button that up. I know what that means." C.C. complied and buttoned up his flannel shirt. Later that day, while in a classroom that lacked air conditioning, C.C. took off his flannel shirt. When Ferini saw C.C. without the flannel covering up his Let's Go Brandon t-shirt she wrote him up. Due to the write-up C.C. reported to Defendant Andrew Keeple, Principal of C.C.'s school. Keeple instructed C.C. to wear the flannel the rest of the day and to never wear the shirt to school again.

However, C.C. did wear the shirt again in January of 2025. Once again, Ferini confronted C.C. asking if he liked offending people. Plaintiff alleges no one else had complained about the t-shirt. Yet, Keeple called Conrad to inform him that C.C. had once again violated the school's dress code and if he did it again there would be further disciplinary action taken because the message was code for a vulgar expression. Conrad disagreed with Keeple about the message the t-shirt conveyed and informed Keeple he would not instruct C.C. to stop wearing the t-shirt. On March 24, 2025, C.C. wore the t-shirt again without any other student or staff member complaining or objecting. Yet, he received a detention from Keeple. Two more times C.C. was disciplined by the school for violations of the Student Code of Conduct Rule L1-L14(Repeated Violations of Code of Conduct)….

In Bethel School Dist. No. 403 v. Fraser (1986), the United States Supreme Court found that a student engaged in speech not protected by the First Amendment. At a Pierce County, Washington, high school assembly, student Matthew Fraser delivered a speech nominating a fellow student for an elected office. Fraser's speech used "an elaborate, graphic, and explicit sexual metaphor" to describe his chosen candidate. The school rules forbade certain conduct, "including the use of obscene, profane language or gestures." The school suspended Fraser, who later sued. The Court reasoned that it had "recognized an interest in protecting minors from exposure to vulgar and offensive spoken language." And, the Court found that "it is a highly appropriate function of a public school education to prohibit the use of vulgar and offensive terms in public discourse."

In D.A., two students wore shirts with the phrase "Let's Go Brandon." The district court on summary judgment held that the school's interpretation that the phrase was a vulgar euphemism was reasonable and granted judgment for the school.

While this case presents serious questions of student free speech versus a school's interest in protecting students from vulgar and profane speech, the Court finds Plaintiff has not met his high burden to show a substantial likelihood of success on the merits by clear and convincing evidence. While the D.A. case was on summary judgment and presented facts that are different than those before this Court, Defendant's burden on summary judgment was a preponderance standard which is a lesser burden than Plaintiff's here. Moreover, that case presented fact issues going to the reasonableness of the school's interpretation. Here, as Defendants point out, Plaintiff acknowledges in his Verified Complaint that "Let's Go Brandon" is a euphemism for F*#% Joe Biden. "In school speech cases where a school limits or restricts a student's expression, courts must determine whether the school's interpretation of the expression is reasonable." "The student's expression must be considered in the proper context but the student's motivation or subjective intent is irrelevant."

Given the strong interests of both sides, the unique characteristics of speech in a school setting, the finding by at least one court in this circuit that the school's interpretation of the phrase as vulgar was reasonable, and the acknowledgment in this case by Plaintiff that the phrase is a vulgar euphemism, the Court finds Plaintiff has not shown a substantial likelihood of success on the merits to support injunctive relief. This does not mean Plaintiff cannot win on the merits of the claim as discovery will likely provide clearer evidence on the reasonableness of the interpretation. But given the high standard for injunctive relief, the Court finds against Plaintiff….

For more on the D.A. case, see this post.

Molly E. Davis and Jorden Messmer (Reminger Co.) represent defendants.

The post No Injunction for 8th-Grade Student Disciplined for Wearing "Let's Go Brandon" T-Shirt to School appeared first on Reason.com.

[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

The post Wednesday Open Thread appeared first on Reason.com.

[Eugene Volokh] Seemingly Nonexistent Citation in Anthropic Expert's Declaration

The Declaration filed by a "Data Scientist at Anthropic" in Concord Music Group, Inc. v. Anthropic PBC includes this citation:

But the cited article doesn't seem to exist at that citation or at that URL, and Google found no other references to any article by that title.

Bloomberg (Annelise Levy) has a story about this, under the title "Anthropic Expert Accused of Citing Fake Article in AI Lawsuit" (Chat GPT Is Eating the World links to that). Magistrate Judge Susan van Keulen ordered the parties, apparently (according to Bloomberg) referring to this problem, to explain matters:

[N]o later than May 15, 2025, Defendant shall file a Statement addressing the issue raised by Plaintiffs' counsel at the outset of the hearing ….

I'll report what the Statement asserts once it is filed. Thanks to Prof. Edward Lee for the pointer.

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