Eugene Volokh's Blog, page 113

[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] Another Federal Judge Concludes Aliens Generally Can't Be Deported for Their Political Advocacy

Today's decision by Judge Geoffrey Crawford (D. Vt.) in Mahdawi v. Trump allows a legal permanent resident to be bailed out of detention, pending his immigration hearings.  And the bail analysis requires considering whether Mahdawi raises "substantial claims" that his deportation (on the grounds that "[t]he Secretary of State has determined that your presence and activities in the United States would have serious adverse foreign policy consequences and would compromise a compelling U.S. foreign policy interest") would violate the First Amendment. The court concludes that he has indeed raised such claims:

Noncitizen residents like Mr. Mahdawi enjoy First Amendment rights in this country to the same extent as United States citizens. See, e.g., Bridges v. Wixon (1945) (holding that a noncitizen who published communist literature was protected by First Amendment); Kwong Hai Chew v. Colding (1953) (noting that the First Amendment does not distinguish "between citizens and resident [noncitizens]"); United States v. Verdugo-Urquidez (1990) (confirming that resident noncitizens "enjoy certain constitutional rights," including "First Amendment rights"); Rafeedie v. I.N.S. (D.D.C. 1992) ("Plaintiff is entitled to the same First Amendment protections as United States citizens, including the limitations imposed by the overbreadth and vagueness doctrines."); OPAWL – Building AAPI Feminist Leadership v. Yost, (S.D. Ohio 2024) ("[T]he Supreme Court has never held that the First Amendment fails to protect [noncitizens'] political speech to the same extent it protects citizens' political speech."). That includes the right to be free from retaliation for the exercise of his First Amendment rights. See Ragbir v. Homan (2d Cir. 2019) (holding that legal permanent resident could not be deported in retaliation for his protected speech even where he was deportable on other grounds)….

[Mr. Mahdawi's] speech, which advocated for a peaceful resolution of the conflict in Gaza and opposed Israel's military campaign, is at the heart of an ongoing political debate among the American people. "Because [Mr. Mahdawi's] speech concerns 'political change,' it is also 'core political speech' and thus 'trenches upon an area in which the importance of First Amendment protections is at its zenith.'"

Mr. Mahdawi's speech does not appear to fall within any areas in which the First Amendment permits restrictions based on the content of speech. The Supreme Court recently summarized these areas: "incitement—statements direct at producing imminent lawless action and likely to do so," "defamation—false statements of fact harming another's reputation," "obscenity—valueless material appealing to the prurient interest," and "true threats of violence."

In a memorandum written by Secretary of State Marco Rubio, the government accused Mr. Madawi of "engag[ing] in threatening rhetoric and intimidation of pro-Israeli bystanders" at a protest.  A bail hearing is not the time to make detailed findings on the merits of the First Amendment claim. On the limited record available, Mr. Mahdawi has provided enough information to show that his speech was protected….

Mr. Mahdawi bears the burden of proving that the Government detained him in retaliation for his protected speech or to chill the speech of others. A bail hearing is not the time to rule on the merits of the evidence or the methods of inferring retaliatory motive. It is sufficient at this juncture to consider the Government's public statements, including Executive Orders 14161 and 14188, as evidence of retaliatory intent. Executive Order 14161 states that its purpose is, in relevant part, to "protect [United States] citizens from aliens who … espouse hateful ideology." Executive Order 14188 is entitled "Additional Measures to Combat Anti-Semitism." The fact sheet accompanying Executive Order 14188 promises to "punish anti-Jewish racism in leftist, anti-American colleges and universities."

The fact sheet also promises to deport or revoke the student visas of "all Hamas sympathizers on college campuses, which have been infested with radicalism like never before." It threatens: "To all the resident aliens who joined the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you." Before his election, President Trump reportedly promised donors, in reference to pro-Palestinian activism, that he would "set that movement back 25 or 30 years" if elected. Together, this evidence is sufficient for Mr. Mahdawi's present purpose of raising a "substantial claim" of First Amendment retaliation….

And the court goes on to say, in related different part of the opinion:

The court also considers the extraordinary setting of this case and others like it. Legal residents—not charged with crimes or misconduct—are being arrested and threatened with deportation for stating their views on the political issues of the day. Our nation has seen times like this before, especially during the Red Scare and Palmer Raids of 1919–1920 that led to the deportation of hundreds of people suspected of anarchist or communist views. In Colyer v. Skeffington (D. Mass. 1920), Judge Anderson of the District of Massachusetts granted habeas relief to multiple immigrants detained for their political beliefs. His decision was instrumental in bringing an end to the moral panic that gripped the nation and its officials.

Similar themes were sounded during the McCarthy period in the 1950s when thousands of non-citizens were targeted for deportation due to their political views. Again, the fever passed, but not before Justice Jackson was moved to dissent in U.S. ex rel. Knauff v. Shaughnessy (1950), writing in a habeas case concerning the exclusion of a German war bride:

Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern.

Justice Minton's majority decision is not much remembered. The wheel of history has come around again, but as before these times of excess will pass. In the meantime, this case—like Colyer and Knauff—is extraordinary in the sense that it calls upon the ancient remedy of habeas to address a persistent modern wrong….

Mr. Mahdawi argues that release is necessary to make habeas effective because keeping him in detention pending adjudication on the merits "would ratify the chilling effect that the government intends to create."  As this court observed in Ozturk:

The Second Circuit has specifically recognized potential retaliation for protected political speech as a cognizable ground for habeas relief in the immigration context, noting that "to allow this retaliatory conduct to proceed would broadly chill protected speech, among not only activists subject to final orders of deportation but also those citizens and other residents who would fear retaliation against others."

Mr. Mahdawi, like Ms. Ozturk, "has presented evidence to support [his] argument that [he] may qualify for a retaliation claim." "[A]n inmate's constitutional protections are not left at the prison gate." However, "[t]he fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration." Mr. Mahdawi's ability to exercise his First Amendment rights is "severe[ly] curtail[ed]" as long as he is detained. If he has been detained in retaliation for exercising those rights, release is essential to make habeas relief effective, not only for him but for others who wish to speak freely without fear of government retaliation….

Mr. Mahdawi's release is also in the public interest. His continued detention would likely have a chilling effect on protected speech, which is squarely against the public interest….

I think the precedents may be more ambiguous than the court suggests; for more on that, see this post. The government has appealed the decision, and the same questions are arising in other courts as well; I expect that we'll soon get more detailed analyses from various federal appellate courts on this issue, and perhaps even from the Supreme Court.

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[Paul Cassell] The Arizona Supreme Court Requires Future Lost Income Restitution for a Child Murder Victim

[When a murderer kills a victim, including a child, the murderer has directly and immediately eliminated the victim's ability to earn income. The only remaining issue is to reasonably estimate the size of that loss.]

Today the Arizona Supreme Court handed down an important ruling on restitution in homicide cases. Interpreting Arizona's restitution statutes, the Court concluded that they require restitution for future lost income in homicide cases. The victim's family can establish the amount of restitution that is owed through reasonable estimation.

In Arizona, a victim has a right to receive full restitution from persons "convicted of the criminal conduct that caused the victim's loss or injury." See Ariz. Const. art. 2, § 2.1(A)(8). In a homicide case, the appropriate family representative for the victim steps into the victim's shoes for restitution purposes. The goal of restitution in Arizona (as in most other jurisdictions) is to restore victims to the position they were in before the loss or injury caused by the crime.

In earlier cases, Arizona courts held that "restitution should be ordered for losses that (1) are economic; (2) would not have been incurred by the victim but for the criminal offense; and (3) were directly caused by the criminal conduct." And these earlier cases held that future economic losses were recoverable.

In today's decision, the Arizona Supreme Court rejected a murderer's argument that a child's future lost income was not directly caused by the homicide. The Court explained that "where the criminal conduct directly caused the victim's future … lost wages, [the victim's] murder directly caused [the] claimed loss. [The victim's] future ability to earn wages was directly and immediately eliminated with his death, and no other causal events occurred or remained to occur to produce that result. In other words, the loss was direct and immediate."

The Arizona Court of Appeals had reached a different conclusion. But today the Arizona Supreme Court reversed, holding that the court of appeals "mistakenly conflated the cause of [the victim's] future lost wages with the calculation of that loss."  The court of appeals had concluded that future lost wages were consequential damages because "so many undetermined causal factors contributed to the six-year-old [victim's] projected earnings that the trial court had no basis to validly calculate an amount." But the Arizona Supreme Court held that these are separate inquiries: "If criminal conduct directly caused a victim's loss, … any uncertainty in calculating that loss does not negate the causation finding. Rather, once the right to restitution is established, the inquiry turns to whether the victim has sufficiently demonstrated the amount of the loss so that restitution can be ordered."

Turning to the issue of the amount of loss, the Arizona Supreme Court instructed that the victim "must provide a reasonable basis for estimating the incurred loss." The Court cited the Restatement (Second) of Torts § 912 cmt. a. (Am. L. Inst. 1979), which explains that injured persons should provide a "definiteness of proof as to the amount of damage as far as is reasonably possible" and noting that "an injured person [should] not be deprived of substantial compensation merely because he cannot prove with complete certainty the extent of harm." The Arizona Supreme Court remanded so that the victim's family could present the evidence on expected future lost earnings caused by the murder.

Today's Arizona Supreme Court decisions parallels a ruling that I made as a federal district court judge. In U.S. v. Serawop (as ultimately affirmed on remand), I awarded $325,751 in restitution to a mother whose three-month-old baby was criminally killed. I relied on lost income calculations by an expert accountant. Presumably in this Arizona case, the victim's family can provide similar, reasonable calculations. In my decision, I reasoned that where a killer has deprived the victim of a chance to succeed in life, a judge's discretion should be exercised in favor of the victim.

Note: The victim in this case was represented by Colleen Clase of Arizona Voice for Crime Victims. I provided advice to AVCV as they were pursuing this claim.

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[Josh Blackman] Emergency Application Filed With Circuit Justice Jackson Seeks Relief By May 6; Still No Call For Response

[The Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but stays silent when citizens of Maine lose their elected representative.]

Laurel Libby is an elected representative in Maine. The Speaker of the Maine House stripped Libby of the right to vote in the legislature due to her comments about transgender athletes in sport. The District Court and First Circuit denied relief. Ed Whelan has more about the controversy here.

On Monday, April 28, Consovoy McCarthy filed an emergency application with . Libby has asked for a ruling by May 6 when the legislative session begins.

In this application, Petitioners seek an injunction pending appeal requiring the Clerk to count Libby's votes. That interim relief simply restores the status quo of equal representation, bringing the Maine House back into conformity with every other State and Congress. Petitioners respectfully request that relief before May 6, 2025, when the House convenes yet another floor session where every legislator but Libby may vote.

As of the evening of Wednesday, April 30, Justice Jackson still has not called for a response. Getting a ruling by May 6 would have been difficult, even with a prompt turnaround time. But this petition has now been sitting on the docket for two days without any motion. And forget about an administrative stay!

It seems the Court's preferences are fairly clear, as we saw in the denial of the application in the Ohio ballot case. The Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but stays silent when citizens of Maine lose their elected representative. I'm glad everyone's priorities are straight.

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[Steven Calabresi] The Tariffs Imposed by President Trump Are Unconstitutional

[Presidential power must stem from the Constitution or a statute, and the tariffs imposed by President Trump are unauthorized by statute, making them both unlawful and unconstitutional.]

President Trump has raised or lowered tariffs/taxes, or he has threatened other nations that he will do so, on an almost daily basis since Inauguration Day. He does not have the legal authority to do so.

The U.S. Constitution authorizes the imposition of tariffs in the very first clause of Article I, Section 8, which famously grants Congress eighteen, and only eighteen, limited and enumerated legislative powers. That Clause provides that:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

This provision stems from centuries of conflict in Great Britain (and the colonies) about the location of the power to tax, and from the American Revolutions rejection of Parliament's effort to impose "taxation without representation" on the colonies.

Samuel Johnson's 1755 Dictionary of the English Language defines a Duty as a "Tax; impost; custom; [or] toll." It defines an Impost as "a tax; a toll; [or] a custom paid." A tariff is either a "duty" or an "impost," and the power to impose such tariffs/taxes is therefore explicitly given to Congress, not the President, by the Constitution. From the Tariff Act of 1789, passed by the First Congress, to the Tariff of Abominations passed in 1828, to the Smoot-Hawley Tariff passed in 1930, it has always been understood that the Constitution gives only Congress the power to impose, raise, or lower tariffs, which are taxes. It does not give that power to the President.

Under case law going back to the nineteenth century, Congress can delegate some measure of power to the President to adjust tariff rates, but President Trump can only impose, raise, or lower tariffs if Congress has delegated that power to him by statute. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). He also can only do so as long as the delegation of power by Congress is guided by "an intelligible principle." This is a wise and good feature of our Constitution, a document which should be revered and followed, not trashed.

A superb amicus brief written by former Judge, and present-day Stanford Law Professor, Michael McConnell and by attorney Joshua Claybourn demonstrates beyond the shadow of a doubt that Congress has not delegated the sweeping power to impose, raise, lower, defer, and reinstate tariffs/taxes from day to day that President Trump has purported to exercise in the last 100 days. There is simply no statute that authorizes the Trump tariffs/taxes, especially those announced in April 2025. And there is no statutory "intelligible principle" that has guided President Trump's repeated raising, lowering, delaying, and then reinstating of tariffs/taxes.

The McConnell/Claybourne amicus brief, which I signed, can be found at this link:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5237248. It was also signed by a former U.S. Attorney General, two former Senators and a former Governor, former judges, a former Yale Law School Dean, and a former White House Counsel—all of whom have sterling reputations and who include leading liberals as well as conservatives. (The signatories are former Sen. and Gov. George F. Allen, Sen. and former Ambassador to the United Nations John C. Danforth, Prof. Richard A. Epstein, former Sen. and Secretary of Defense Charles T. Hagel, Prof. and former Yale Law School Dean Harold Hongju Koh, Prof. Gerard N. Magliocca, former Attorney General and Judge Michael B Mukasey, Prof. Alan Sykes, former Judge John Daniel Tinder, former White House Counsel Peter Wallison, and former State Department Counselor and Director of the 9/11 Commission Philip Zelikow.)

The brief explains that:

In April 2025, President Trump proclaimed a sweeping tariff regime that touches nearly every imported good sold in the United States. The measures include a 10% baseline tariff on all imports and a 34% duty on Chinese goods (raising total tariffs to 65%). These levies did not arise from legislation. They were not the product of congressional debate or any statutory process. Nor were they supported by specific findings under existing trade laws. Instead, they were imposed unilaterally, by presidential proclamation, and justified under statutes like the International Emergency Economic Powers Act ("IEEPA") and sections of the Trade Act of 1974. On April 9, 2025, President Trump announced a 90-day pause on most of these tariffs, except for those on Chinese imports, which were increased to 125%. The baseline 10% tariffs on nearly every country remained in effect.

When Congress has delegated authority in trade matters, the Court has required strict limits. In J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), the Court upheld a tariff delegation only because it was governed by an "intelligible principle" and confined to narrow bounds. That remains the constitutional baseline. Where Congress has authorized executive action in trade policy, it has done so through specific, tightly constrained statutes—typically requiring factual findings, defined procedures, and clearly delineated circumstances.

The Trade Act of 1974 and the Trade Expansion Act of 1962 exemplify this approach. They allow the Executive to address unfair trade practices or national security threats, but only within carefully prescribed limits. Even then, these statutes do not—and constitutionally cannot—authorize the President to enact a sweeping tariff regime absent new legislation.

The absence of tariff language in IEEPA stands in sharp contrast to statutes where Congress has affirmatively granted such power. When Congress intends to authorize duties, it says so. Section 301 of the Trade Act of 1974 allows the President to "impose duties or other import restrictions." 19 U.S.C. § 2411(c)(1)(B). Section 201 of that same Act empowers the President to "proclaim an increase in, or the imposition of, any duty on the imported article" or to "proclaim a tariff-rate quota." 19 U.S.C. § 2251(a)(3)(A), (B). Similarly, Section 232 of the Trade Expansion Act authorizes the adjustment of "duties" on imports, 19 U.S.C. § 1862(a), and grants authority to "adjust the imports." Id. § 1862(c). In each case, Congress spoke with clarity when it intended to delegate authority over tariffs and it encumbered the grant of authority with procedural and substantive conditions and prerequisites."

To be fair, those constraints are often pretty thin. The President has been allowed to impose tariffs that respond to "reciprocally unequal and unreasonable" tariffs elsewhere. Field v. Clark. He can adjust tariff rates to "equalize the costs of production" between the US and other countries. Hampton. But there has to be some statutory limit somewhere.

The most important defense President Trump has made of his massive tax/tariff increase is that it is justified by the "emergency" of large trade deficits, which have been around for decades, and the "emergency" of the hollowing out of the United States's manufacturing industry, which has gone on at least since the North American Free Trade Agreement (NAFTA) went into effect thirty-one years ago in 1994.

Black's Law Dictionary Online defines an "emergency" as being a:

Situation requiring immediate attention and remedial action. [I]t involves injury, loss of life, damage to the property, or catastrophic interference with the normal activities. A sudden, unexpected, or impending situation.

The decades long trade deficit, and the hollowing out of the United States's manufacturing base, are neither (1) a sudden, unforeseen event (like a nuclear attack), which would require unilateral presidential retaliation, nor (2) problems that are so urgent and so requiring of immediate attention that they would justify "emergency" action by the President alone, without Congress's input. Tariffs may or may not be good national policy, but the Constitution and the laws of this country make that a question that Congress must deal with pursuant to Article I, Section 7 and not the President alone.

IEEPA, the statute that President Trump relied on in imposing his April 2025 tariffs/taxes, was passed to limit such carte blanche power to impose tariff/taxes when it was claimed by President Richard M. Nixon. IEEPA is clearly constitutional insofar as it cut back on the power President Nixon claimed under an earlier and now defunct statute. This is because the Constitution explicitly gives the power to impose "duties" and "imposts," as it calls tariffs, to Congress acting pursuant to Article I, Section 7, and not to the President alone.

There is no ambiguity here, and no long-standing presidential practice of Presidents imposing, raising, lowering, deferring, and reinstating tariffs/taxes outside of statutory authority, as some of have claimed might be the case with respect to the impoundment of congressionally appropriated funds. United States v. Midwest Oil Co., 236 U.S. 459 (1915) (long-standing presidentially claimed power acquiesced in by Congress for decades may be constitutional); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Frankfurter, J. concurring) (longstanding presidential practice acquiesced in by Congress for decades is a "gloss on the text" of the executive power vesting clause). While a few might wrongly claim that the Impoundment Control Act of 1974 is unconstitutional, there is no question at all that IEEPA is constitutional insofar as it cut back on presidential power under the Trading with the Enemy Act of 1917 (TWEA). It is also true that the National Emergencies Act of 1976 (NEA) ended all formerly declared presidential emergencies and formalized and curtailed greatly presidential power to declare emergencies.

IEEPA was passed in 1977 to give the power to the President to deal with emergencies requiring trade sanctions or embargoes, like Russia's invasion of Ukraine, or Iran's apparent efforts to build a nuclear bomb. IEEPA does authorize President Trump to impose trade sanctions or embargoes in these situations, but it does NOT delegate to the President the power to raise, lower, defer, and reinstate tariffs, arbitrarily from day to day, on long-standing American allies like Canada, Mexico, and the other countries in the NATO alliance.

The Framers created a unitary executive because they knew that "energy" in the execution of the laws was an essential prerequisite for good government. But when it came to the making of laws or the imposition of taxes, which required popular representation in the legislature, which has the sole power of the purse, the Framers opted for the deliberation-promoting process of bicameralism and presentment to the president set out in Article I, Section 7. As the McConnell/Claybourne amicus brief says:

[The Framers] well understood what Madison called the "mischievous effects of a mutable government," and sought to guard against it by the bicameral structure of Congress. The Federalist, No. 62, at 420 (Jacob E. Cooke ed. 1961). As Madison explained, "It will be of little avail to the people, that the laws are made by men of their own choice, if the laws … be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow." He posed the question: "What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?" Id. at 421-22. So, too of American merchants and manufacturers today, whose decisions are affected by the cost of imported goods and materials. It is not an argument for one tariff policy over another to observe the wisdom of the Constitution's assignment of these powers to the branch most likely to pursue a consistent and predictable policy.

The amicus brief is right.

IEEPA is not an ambiguous text on the question of presidential power to impose tariffs/taxes. But even if it were an ambiguous text, and even if some presidential power could be squeezed out of some other statute, tariff/tax decisions of the scale of the ones President Trump has been imposing, delaying, reinstating, raising, and lowering would raise a major question under the Roberts Courts' Major Questions Doctrine set out in cases like Food and Drug Administration v. Brown & Williamson Tobacco Co. (2000) (FDA cannot regulate tobacco as a drug); Alabama v. Ass'n of Realtors v. HHS (2021) (striking down a nationwide moratorium on evictions by landlords during COVID); National Federation of Independent Business v. Dept. of Labor (2022) (striking down a nationwide mandate that employers force workers to get the COVID vaccine); West Virginia v. Environmental Protection Agency (2022) (striking down climate change prevention rules that would have cost over a trillion dollars to comply with); and Biden v. Nebraska (2023) (striking down forgiveness of all student loan debt under a statute which allows that in the event of a terrorist attack). Such major questions must be addressed by Congress and the President under the rules of Article I, Section 7. They cannot be the subject of unilateral presidential action.

To date, the Supreme Court has applied the Major Questions Doctrine to regulatory agencies or cabinet departments, like the Food and Drug Administration, the Department of Health and Human Services, the Department of Labor, the Environmental Protection Agency. In Biden v. Nebraska, the Supreme Court applied the Major Questions Doctrine directly to President Biden himself. Nevertheless, there can be no doubt that President Biden must have been aware of and have approved actions as major as: (1) HHS's nationwide moratorium on evictions during COVID of renters, and of (2) the Occupational and Health Administrations requirement that all American workers be required to get a COVID vaccination, and (3) of the EPA's trillion dollar regulations to fight climate change.

The President is not a King, nor is he above the Constitution that binds the Cabinet Departments and regulatory agencies. Under our Constitution, dealing with major questions—like the imposing, lowering, deferring, and reinstating of tariffs on our NATO allies and on Mexico—is a decision that can only be made by Congress itself acting through bicameralism and presentment as is required by Article I, Section 7. There is no inherent, prerogative power of the President to raise our taxes by unilaterally imposing tariffs on our closest allies and friends of the last 76 years.

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[Eugene Volokh] Large Libel Models: New AI Libel Lawsuit, Brought by Conservative Activist Robby Starbuck Against Meta

Screenshot from the Complaint, including Starbuck's denial of the allegations that Meta AI apparently made about him.

 

Some excerpts from the long Complaint in Starbuck v. Meta Platforms, Inc., filed in Delaware Superior Court yesterday (for more on the legal issues these sorts of cases raise, see my Large Libel Models? Liability for AI Output article):

Imagine waking up one day and learning that a multi-billion-dollar corporation was telling whoever asked that you had been an active participant in one of the most stigmatized events in American history—the Capitol riot on January 6th, 2021—and that you were arrested for and charged with a misdemeanor in connection with your involvement in that event.

Further imagine that these accusations were completely false: that you were at your home in Tennessee on January 6th, and that you had never been accused of committing any crime in your entire life; in fact, you hadn't received as much as a parking ticket in over a decade. But despite their utter baselessness, these false statements were widely believed because they were made by one of the most powerful and credible technology companies in the world.

Finally, imagine that the technology company continued to publish these and other lies about you for nine months after you first asked them to stop. And that based on the lies it created, the technology company was recommending that no one should associate or do business with you—and even worse, that "authorities should consider removing [your] parental rights" to "protect" your own children from you.

This is what happened to Plaintiff Robert ("Robby") Starbuck, who first learned in August 2024 that Meta Platforms, Inc. ("Meta") was spreading these damaging lies about him via its chat bot, Meta AI.

As soon as Mr. Starbuck learned about these false statements, he did everything within his power to alert Meta about the error and enlist its help to address the problem. He contacted Meta's managing executives and legal counsel to engage in a dialogue. He asked Meta AI for its recommendations about what should be done to address false outputs generated by a chat bot, and then asked Meta to do exactly those things: retract the false information, investigate the cause of the error, implement safeguards and quality control processes to prevent similar harm in the future, and communicate transparently with all Meta AI users about what would be done.

Meta was unwilling to implement these changes or take meaningful responsibility for its conduct. Instead, it allowed its AI to spread false information about Mr. Starbuck for months after being put on notice of the falsity, at which time it "fixed" the problem by wiping Mr. Starbuck's name from its written responses altogether.

Yet despite this "fix," Meta's training data not only retained the original lies about Mr. Starbuck but embellished upon them to create a truly sinister narrative.

In April 2025, Mr. Starbuck was informed that a Meta AI voice feature had become available through Meta's Instagram and Facebook applications, and that this voice feature was claiming that he had "pled guilty over disorderly conduct" on January 6th and that he had "advanced Holocaust denialism"—both of which are patently false. This Meta AI voice feature further opined, with bone-chilling confidence, that Mr. Starbuck poses "a significant threat to his children's wellbeing" and that "[a]uthorities should consider removing parental rights to protect them."

Meta's knowing and reckless conduct has caused immeasurable damage to Mr. Starbuck, including not only reputational and professional harms, but death threats directed to himself and his family. Meta's defamation has caused Mr. Starbuck's colleagues and partners to view him as an unjustifiable risk to their relationships and business ventures. And Mr. Starbuck's attempts to neutralize Meta's accusations by explaining their falsity have been in vain, because people believe that these accusations must have come from somewhere if they are being published by a prestigious and well-resourced company like Meta….

Individuals and businesses are increasingly relying on AI outputs to assess an individual's character and trustworthiness. Recent polls indicate that 51% of Americans trust AI content at least some of the time, and 22% trust information from AI most or all of the time. Public trust in AI causes Americans to believe that AI outputs 'must have come from somewhere,' thereby amplifying the harm of such false statements.

As Mr. Starbuck's case demonstrates, the real-world impacts of AI's false speech can even reach people who had never used the AI's products before….

On or around Monday, August 5, 2024, Meta AI published false information about Mr. Starbuck to a third party. Specifically, Meta AI (using Llama 3.1) falsely asserted that Mr. Starbuck had been "present at" the January 6, 2021, Capitol riot and had been "accused of participating in or promoting the event." Meta AI also stated that Mr. Starbuck "has been linked to the QAnon conspiracy theory."

Mr. Starbuck became aware of these false statements when the third party—who operates an X (formerly, Twitter) account by the name of "WilkinsHarley.Com"—posted a screenshot of Meta AI's outputs, as if the outputs were true. This post was made in reply to Mr. Starbuck on X….

According to metrics made available by X, this post has been viewed over 600 times as of the date of this filing:

The information published by Meta AI to this individual was provably false:

Starbuck was not present at the Capitol Building on January 6, 2021—he was in his home state of Tennessee. Starbuck did not "participat[e] in" or "promot[e]" the Capitol riot or the illegal acts committed on January 6th, in any way. Starbuck has not been "linked to the QAnon conspiracy theory." The only view he has expressed about QAnon has been to discredit its legitimacy in 2020, prior to the 2020 election. (He was criticized for this position yet stood by it).

Mr. Starbuck was stunned to learn that Meta AI had created these false and damaging accusations about him out of whole cloth, and that it was asserting these claims to Meta AI users as fact….

On or around August 8, 2024, Meta AI stated to a colleague of Mr. Starbuck's that Mr. Starbuck had "enter[ed] the Capitol on January 6th and filmed inside the building during the riot," and that he had "shared his footage with the FBI and House select committee investigating the January 6th attack." Meta AI also offered: "it's important to note that entering the Capitol without authorization is illegal, and Starbuck's involvement and actions during the event have been subject to controversy and scrutiny." …

On or around August 8, 2024, Meta AI stated to Jim Hanson, President of Washington D.C.-based think tank Security Studies Group, that Mr. Starbuck had "enter[ed] the Capitol on January 6th" and "filmed inside the Capitol," that he has "acknowledged that he entered the Capitol and filmed footage inside the building," and that "his footage was used by the House select committee investigating the January 6 attack." …

On or around August 8, 2024, an X user ("X User") publicly posted screenshots of his/her conversation with Meta AI, in which Meta AI had stated that "Robby Starbuck was present at the US Capitol on January 6, 2021." … Mr. Starbuck does not know this X User, but he or she has 731 followers on that platform, according to metrics made publicly available by X. To date, X User's post of his/her conversation with Meta AI has been viewed 1,723 times, "liked" seven times, and reposted five times, according to metrics made publicly available by X….

[Even] three months after being repeatedly put on notice of false and defamatory statements being made by Meta AI about Mr. Starbuck, and after claiming to have "addressed" the problem with "enhancements," Meta continued to allow Meta AI to repeat the false statements—including that Mr. Starbuck is a criminal—to whomever asked….

Apparently, the way Meta (eventually) "addressed" its defamation of Mr. Starbuck was to remove all meaningful outputs about him from its written responses. Instead, Meta AI users who seek information about Mr. Starbuck via Meta AI's website will be told "Sorry, I can't help you with this request right now." … In other words, Meta AI's solution to defaming Mr. Starbuck was to wipe him from existence on its website.

Given Meta's massive prestige and influence, these evasive responses naturally invite Meta AI users to speculate about what Mr. Starbuck did wrong to get his name banned from Meta's chat bot. These responses do not repair the damage that Meta has done—by contrast, they increase the damage by casting over Mr. Starbuck a shadow of impropriety that he can't remove….

In April 2025—nearly nine months after Meta's original defamation—Mr. Starbuck was horrified to learn that Meta AI's false narrative about him had not stopped but continued in full force, this time with sinister embellishments and transmitted through a humanlike voice….

On or around April 21, 2025, Meta AI's voice feature published false statements to a colleague of Mr. Starbuck's, in response to voice generated inquiries posed by the colleague. The false statements included that Mr. Starbuck had promoted Holocaust denial and that he had been arrested and pled guilty to a misdemeanor in connection with January 6th…. This colleague contacted Mr. Starbuck to alert him about these outputs.

This was the first time that Mr. Starbuck learned about the existence of Meta AI's voice feature or the ongoing defamation….

Mr. Starbuck is reasonably terrified of how Meta AI's reckless lies and malicious recommendations about him could affect his safety, security, peace, and parental rights in the future….

As one example: consider Resolver, a risk intelligence company that provides information to over 1,000 global organizations across industry sectors, including Fortune 500 companies like Starbucks, Johnson & Johnson and Lowes. Resolver helps companies mitigate risks and enhance decision-making, including regarding where to place advertisements. In generating its reports, Resolver uses "AI tools to gather data about online activities across the surface, deep and dark web," and advertises that "the combination of AI and human expertise allows the Resolver team to dig deeper into risks playing out online."

In October 2024—two months after Meta AI's false statements began circulating—Resolver issued an "intelligence report" about Mr. Starbuck's "organizations, affiliations and tactics" to "inform partners about the strategic risks their organizations face" in connection with him….

On information and belief, Resolver relied in part on Meta AI's defamatory outputs about Mr. Starbuck in generating this negative report about him.

On information and belief, this Resolver report has deterred and will continue to deter companies from engaging in business with Mr. Starbuck and/or placing advertisements in connection with Mr. Starbuck's work.

Since August 5, 2024, Mr. Starbuck has struggled to secure advertising for his projects, and on information and belief, Meta AI's false statements are a direct and proximate cause of those struggles.

Mr. Starbuck has experienced other difficulties with securing business relationships in the wake of the false statements. As an example: before August 5, 2024, Mr. Starbuck had never been denied insurance of any type and had a perfect record of payment. After August 5, 2024, Mr. Starbuck's request for homeowners' insurance and car insurance was denied by multiple companies, without explanation. On information and belief, in deciding to deny coverage for an otherwise wholly viable candidate, these companies relied, in whole or in part, on Meta AI's defamatory outputs about Mr. Starbuck….

The Complaint also alleges that Meta acted with "actual malice," which actually means knowledge or recklessness as to the falsehood, because "after Meta AI began circulating the false statements on or about August 5, 2024, Mr. Starbuck and his attorney repeatedly put Meta on notice of the provable falsity of its accusations and asked Meta to retract and correct." And it alleges that "Meta does not contest the falsity of its statements."

I look forward to seeing and writing about Meta's responses, and any court decisions that the case may yield.

The post Large Libel Models: New AI Libel Lawsuit, Brought by Conservative Activist Robby Starbuck Against Meta appeared first on Reason.com.

[Eugene Volokh] Journal of Free Speech Law: "Humanist Copyright," by Jane Ginsburg

The article, based on Prof. Ginsburg's Melville B. Nimmer Memorial Lecture, is here; the Introduction:

Much American copyright rhetoric vaunts technological progress and econom­ic incentives. One reading of the constitutional copyright clause characterizes copyright as a necessary (if unappealing) encouragement to the advancement of innovation. These emphases tend to obscure the centrality of human creativity to copyright law and theory.

In this article, provocatively titled "Humanist Copyright," I develop a counter-narrative. I seek to highlight the role of human authorship in the copyright scheme. The title references not only current debates over AI-generated outputs but also the proposition that authors' rights embody and advance human achievement. Copyright celebrates human creativity, for multiple reasons, economic and social, but also grounded in the person of the author. I trace these concepts to Italian Renaissance humanism and the emergence of the author as entrepreneur.

My exploration of the role of authorship proceeds in three parts: historical, doctrinal, and predictive. First, I will review the development of author-focused property rights in the pre-copyright regimes of printing privileges and early Anglo-American copyright law through the 1909 U.S. Copyright Act. Second, I will analyze the extent to which the present U.S. copyright law does (and does not) honor human authorship. Finally, I will consider the potential responses of copyright law to the claims of proprietary rights in AI-generated outputs. I will explain why the humanist orientation of U.S. copyright law validates the position of the Copyright Office and the courts that the output of an AI system will not be a "work of authorship" unless human participation has determinatively caused the creation of the output.

The phrase "humanist copyright" nods to Italian Renaissance philosophers such as Giovanni Pico della Mirandola, whose 1485 Oration on the Dignity of Man emphasized human autonomy in a human-centered universe. Pico declared that "we have been born into this condition of being what we choose to be"; man stands "at the very center of the world … as the free and proud shaper of [his] own being, to fashion [him]self in the form [he] may prefer." While Pico emphasized self-determination in shaping individual lives, the kinship between the authorship of one's being and the authorship of works of art and literature is apparent. Concepts of creative autonomy took root and flowered in 16th-century Italy, as Giorgio Vasari's Lives of the Artists attests. My counter-account of copyright thus begins in 16th-century Rome and focuses on one protagonist in the development of authorial rights.

And this is also a reminder that we publish material related to free speech generally, not just the First Amendment. This includes many kinds of articles related to copyright law, which "the Framers intended … to be the engine of free expression" (and which is at the same time a speech restriction), as well as articles about trade secret law, trademark law, common-law rules related to libel, state statutory protections for speech, and a wide range of other speech restrictions and protections.

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[Jonathan H. Adler] This Is Not the 5-4 Supreme Court Split You Were Looking For

[A statutory interpretation case, involving national emergencies, splits the justices in an unusual way. ]

The Supreme Court issued its decision in Feliciano v. Department of Transportation today, revealing a quite unusual 5-4 split among the justices.

Justice Gorsuch wrote for the Court, joined by the Chief Justice, and Justices Sotomayor,, Kavanaugh, and Barrett. Justice Thomas dissented, joined by Justices Alito, Kagan, and Jackson.

This split is particularly interesting because it cannot be explained by usual ideological or doctrinal categories. This is not a right-left split, nor a formalist-pragmatist split. The opinion also does not divide the justices along other identifiable methodological lines, as the Court's most committed textualists are divided. While it is not unusual to see the Chief join the Trump nominees in disagreement with Justices Alito and Thomas, we don't typically see the liberal justices split in this way (Sotomayor v. Kagan and Jackson), and the opinion.

For what it's worth, this is the sixth opinion this term in which the Court has split 5-4, and we have seen only one 6-3 split thus far, but the Court still has a ways to go before the end of the term. The justices have issued 25 opinions in argued cases (and 29 opinions overall) so they have over half of this term's cases left to resolve.

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[Josh Blackman] Florida Judge Seeks To Enjoin Parties Not Before Her Court

[And she is considering holding the Florida Attorney General in contempt for pointing out the limits of the judge's order]

Florida enacted a law that permits law enforcement officials to arrest illegal aliens who enter the state. The ACLU filed suit against the state Attorney General, statewide prosecutors, and state attorneys, from enforcing the law. But the complaint did not name Florida law enforcement officials. Two days later, the District Court Judge entered an Ex Parte TRO "prohibiting Defendants and their officers, agents, employees, attorneys, and any person who are in active concert or participation with them from enforcing" the Florida Law. At a subsequent hearing, the Judge asked if she could bind all law enforcement officials, even if they are not parties or subject to the Defendants' control.

Attorney General James Uthmeier sent an email to state law enforcement officials. The email stated, in part, "It is my view that no lawful, legitimate order currently impedes your agencies from continuing to enforce Florida's new illegal entry and reentry laws."

NEW: Today, Florida AG @AGJamesUthmeier filed a brief in federal court arguing that law enforcement agencies are not part of the ACLU's lawsuit against FL's new anti-illegal immigration laws, and they cannot be bound by the judge's order preventing enforcement.

He sent this… pic.twitter.com/XsqPZRHssA

— Bill Melugin (@BillMelugin_) April 23, 2025

The Attorney General's brief explains the position:

Those law-enforcement officers do not fit into the "traditional understanding of whom a federal injunction binds." Robinson, 83 F.4th at 878. They are not parties. Nor are they Defendants' "officers or agents," for Defendants have no power to control or direct their behavior. Fed. R. Civ. P. 65(d)(2)(B). And they are not invariably "in active concert or participation" with the Defendants, Robinson, 83 F.4th at 878, because independent law-enforcement officers are not "in privity" with Defendants, id. at 881. While the Attorney General communicated the Court's view that law enforcement should not make arrests under SB 4-C, he did so solely to comply with this Court's order—which Defendants maintain is unlawful. At most, this Court's injunction may extend only to non-party law-enforcement officers that "aid and abet" Defendants in violating the injunction, id. at 879—a vanishingly narrow group, seeing that Defendants have committed to abide by this Court's orders. The Court's injunction is overbroad to the extent it declares otherwise.

This is quite right. If the Plaintiffs sued the wrong defendants, that was their choice. We saw something similar during the same-sex marriage litigation in Alabama. The plaintiffs did not sue all of the probate judges, and as a result, judges who were not sued could not be subject to the injunction. The judge in that case acknowledged that the injunctions did not compel any nondefendant officers to issue licenses and did not compel issuance of licenses to any nonplaintiff couples. It took a class certification to bring in all of the probate judges and plaintiffs. (I discuss this history at pages 272-276 of this article.)

People often complain about universal injunctions against the federal government. But there are similar injunctions against state governments. The District Court cannot enter a "universal injunction" against all officials in the state. Justices Gorsuch and Kavanaugh made this point clear in Labrador v. Poe. The correct approach would be to certify a class of all named law enforcement officials. Of course, I don't think you can certify a class with an ex parte TRO, but D.C. federal judges do so consistently now.

The District Court judge is also determining whether to hold the Attorney General in contempt.

A Miami federal judge said Tuesday she was "surprised and shocked" when state Attorney General James Uthmeier first told police officers to obey her order not to arrest undocumented immigrants entering Florida but later said he "cannot prevent" them from making arrests under a new state law. U.S. District Judge Kathleen Williams is considering whether to find Uthmeier in contempt of court.

…

"What I am offended by is someone suggesting you don't have to follow my order, that it's not legitimate," Williams said.

The judge's order with regard to the named parties, and those under their supervision, was legitimate. But courts cannot issue orders against unrelated parties. The Attorney General, as the chief legal officer of the state, gave legal advice to the state. That is not a contemptible offense. I see shades of Judge Boasberg here, who urged the plaintiffs to replead their case, certified a class, ordered the planes to turn around, and then sought to hold the executive branch in contempt.

Worse still, this was all done following an Ex Parte TRO where an appeal is not even possible. I think contempt proceedings during these fast-moving proceedings, where there is not even an opportunity for an appeal, are a mistake.

The real issue, I think, is that judges have become too confident in their power to issue universal ex parte TROs. But when the executive branch seeks to hold a court to the conventional rules, the judges recoil.

To quote Justice Alito, "Both the Executive and the Judiciary have an obligation to follow the law." The executive branch has to enforce orders that bind the executive branch. And Courts cannot enjoin non-parties. Each branch must stay in their lane.

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[Stephen Halbrook] Second Amendment Roundup: National Firearms Act Constitutional Issues

[Wyoming Law Review publishes special issue on the NFA.]

The Wyoming Law Review's Special Edition on the National Firearms Act is now available.  Last fall, the Firearms Research Center at the University of Wyoming College of Law hosted a symposium on historical, statutory, and constitutional issues involving the NFA.  The papers stemmed from that conference.

Here's the abstract from my contribution, The Power to Tax, The Second Amendment, and the Search for Which "Gangster Weapons" To Tax:

Congress does not have the power to ban firearms. The National Firearms Act (NFA) is based on the power of Congress to lay and collect taxes. In 1937, the Supreme Court upheld the NFA as purely a revenue measure. When it banned possession of machineguns in 1986, Congress undercut that constitutional basis. The Supreme Court has held that any ambiguities in the NFA must be read narrowly according to the rule of lenity.

The 1934 House hearings barely mentioned the Second Amendment. A federal district judge upheld the NFA under the theory that the Amendment does not protect individual rights. In 1939, the Supreme Court declined to take judicial notice that a short-barreled shotgun is "ordinary military ordnance" protected under the Second Amendment.

Recently, the Court has adopted the test that the Amendment protects arms that are in common use. The initial NFA bill, and the bill as enacted, arbitrarily included some firearms and excluded others. After enactment, the Attorney General went on a failed crusade to require all firearms to be registered.

Short-barreled rifles and silencers should be removed from the NFA. Neither was identified in the 1934 hearings as desirable to criminals. Today, registered short-barreled rifles and silencers are in common use and are rarely used in crime. Removing them from the NFA would leave them still regulated under the Gun Control Act.

When I say that "Congress does not have the power to ban firearms," I am referring to constitutional power set forth in Article I, § 8.  There have been times, of course, when it has exercised power coercively without constitutional authorization, such as in enacting the ban on semiautomatic firearms in 1994.

The other articles in the issue, all of them thought-provoking, are as follows:

Michael Patrick, Bruen: The Court's Announcement of the Historical Analogy Test and the Aftermath Thereof

David B. Kopel, Machine Gun History and Bibliography

Joseph G.S. Greenlee, The Tradition of Short-Barreled Rifle Use and Regulation in America

Charles K. Eldred, The National Firearms Act is an Unconstitutional Tax

Tom W. Bell, The Counter-Militia Second Amendment

Like Rodney Dangerfield, NFA firearms "Don't Get No Respect" by many courts.  Single-shot .22 rifles are the favorite tool of drug traffickers if they have a 15-inch barrel, and a sound moderator is an assassin's best friend if it reduces decibels just a tad.  They have guilt by association because Congress put them on the same list as Tommy Guns.  But not all NFA firearms are created equal.

Kudos to George Mocsary, Director, and Ashley Hlebinsky, Executive Director, of the Firearms Research Center for making the symposium a success.

 

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