Eugene Volokh's Blog, page 116

[David Bernstein] DEI Discrimination at the Harvard Law Review

An exposé at the Washington Free Beacon reveals thorough DEI corruption at the Harvard Law Review. As summarized by author Aaron Sibarium, "the Harvard Law Review has made DEI the 'first priority' of its admissions process. It routinely kills or advances pieces based on the author's race. It even vets articles for racially diverse citations."

I had to chuckle at this one: "In a section titled 'Why should they write the foreword?', one 2024 spreadsheet stated that Shirin Sinnar, a professor at Stanford Law School, would be 'the first hijabi, Muslim woman to write the Foreword.'" I mean… lots of tiny American religious demographics, including ones that have faced significant discrimination, have never had a member of their group write the Foreword, and I don't see why that matters. I doubt HLR has had an Elder of the Mormon Church, a Hasidic Jew, a Jehovah's Witness, a Turban-wearing and sword-wielding Sikh, an Assyrian Christian, a member of an Amish community, a Pentecostal snake-handler, and so on, write the prestigious annual Foreword. The lack of self-awareness about confusing the current obsessions of the woke left with something akin to "diversity" is both shocking and not surprising.

The post DEI Discrimination at the Harvard Law Review appeared first on Reason.com.

[Ilya Somin] KQED Interview on Legal Challenges to Trump's Immigration and Tariff Policies

[We also covered the issue of the administration's failure to properly obey court orders and the looming threat of a "constitutional crisis."]

President Donald Trump signed two executive orders on April 2 instituting tariffs on a wide range of countries. ( Andrew Leyden/ZUMAPRESS/Newscom)

 

I recently did an interview with KQED NPR radio covering some of the legal challenges to Trump's egregious immigration and tariff policies, and considering the broader issues they raise (including the risk of a "constitutional crisis"). The interview was conducted on April 22, and therefore predates the two most recent challenges to Trump's IEEPA tariffs (those filed by twelve states led by Oregon, and the Pacific Legal Foundation). But we nonetheless covered a lot of important ground, and I think this is one of my better recent interviews.

The interview is about 26 minutes long and is available here and here.

The post KQED Interview on Legal Challenges to Trump's Immigration and Tariff Policies appeared first on Reason.com.

[Ilya Somin] Pacific Legal Foundation Files Case Challenging Trump's IEEPA Tariffs

[PLF is a leading libertarian-leaning public interest organization. Their case is similar to that filed by Liberty Justice Center and myself.]

(PLF)

The Pacific Legal Foundation (major libertarian public interest law firm) has filed a case challenging Trump's awful IEEPA tariffs, with the awesome name of Princess Awesome v. CBP. Their case is similar to the one filed earlier by Liberty Justice Center and myself.

I welcome PLF to the fight. They are a long-established public interest law firm that has won numerous cases, including before the Supreme Court [full disclosure: they are also my wife's employer, though she is not one of the attorneys on this case].

Like us, PLF is filing in the US Court of International Trade, representing US businesses that import goods from the countries hit by Trump's massive tariffs. Like us, they argue that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn't authorize tariffs at all, that the trade deficits that supposedly justify the "Liberation Day" tariffs are not an "unusual and extraordinary threat" (which IEEPA says must be present to allow use of the law), and that Trump administration's position runs afoul of constitutional nondelegation rules. Their complaint, unlike ours, does not make use of the "major questions doctrine." But I suspect they might raise it eventually.

I cover these and other reasons why the Trump IEEPA tariffs are illegal in more detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War."

PLF's clients are an interesting group, including Stonemaier, LLC, which produces the popular boardgame Wingspan. Also, Princess Awesome v. CBP is probably the greatest - and most awesome - case name ever!

As detailed in PLF's complaint, Princess Awesome is "a Maryland limited liability company that makes children['s] and adult clothing with the intention that all individual human beings deserve to be seen as their true selves and honored for their own unique set of interests." The clothes they make are produced abroad, in countries subject to the tariffs.

While our lawsuit is limited to the massive "Liberation Day" tariffs,  PLF is also challenging earlier IEEPA tariffs imposed on China, supposedly justified by the threat of fentanyl smuggling.

There are also other lawsuits challenging some or all of the IEEPA tariffs, filed by twelve states led by Oregon (challenging all IEEPA tariffs, filed in the CITY), the state of California (ditto, but filed in federal district court), the New Civil Liberties Alliance (challenging tariffs against China on behalf of an importer, filed in district court), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada, filed in district court). See links embedded in the previous sentence for my thoughts on these cases and how they relate to ours.

The post Pacific Legal Foundation Files Case Challenging Trump's IEEPA Tariffs appeared first on Reason.com.

[Eugene Volokh] No Problem with Expert's Using ChatGPT to Confirm His Work

["Lehnert used ChatGPT after he had written his report to confirm his findings, which were based on his decades of experience joining dissimilar materials."]

From yesterday's decision by Judge Gary Brown (E.D.N.Y.) in Ferlito v. Harbor Freight Tools USA, Inc.:

Plaintiff purchased a splitting maul (an axe specially designed for splitting wood) from defendant in 2017. Several months later, while plaintiff was hanging the maul to store it, the head of the tool detached and struck plaintiff, causing injuries to his nose and left eye. Plaintiff initiated this lawsuit in 2020, alleging that the head detached due to a design defect; defendant asserts the product failed due to plaintiff's misuse, which it contends is evidenced by a large crack in the handle….

To support his defective design claim, plaintiff seeks to offer expert testimony by Mark Lehnert, who identifies himself as a "consultant with products and liability history, extensive knowledge and experience in manufacturing and assembly, [and] mechanical and electrical engineering management." Lehnert holds no engineering degrees, yet reports extensive experience designing and manufacturing power tools, holds over a dozen patents, and has worked in management positions in engineering departments at several corporations over a period of decades.

Lehnert contends the maul used by plaintiff was defectively designed because the handle and head were weakly bound with adhesive, leading to the accident. He opines that good design requires securely attaching the head and handle by "drilling a small diameter hole through the side of the maul, into and through the handle" and placing an aluminum pin "through the head" to reduce the possibility of separation. Lehnert's report references several other mauls currently available for purchase that incorporate such a pin….

Defendant moves to preclude Lehnert's testimony, arguing that he is unqualified as an expert because he lacks engineering degrees, and his experience is limited to designing power tools rather than manual tools. Defendant further argues that Lehnert's opinion is unreliable because (i) he did not rely on any scientific, technical, or trade articles in preparing his report, and (ii) after completing the report, he entered a query into ChatGPT about the best way to secure a hammer head to a handle, which produced a response consistent with his expert opinion….

No problem, says the court:

Federal courts have grappled with the appropriateness of an expert's use of artificial intelligence to form opinions, and the validity of AI as a research tool in litigation more broadly. See Kohls v. Ellison (D. Minn. 2025) (excluding expert testimony when the expert's affidavit contained ChatGPT-generated references to non-existent academic articles); Mata v. Avianca, Inc. (S.D.N.Y. 2023) (sanctioning lawyers and law firm pursuant to Rule 11 for using ChatGPT to find non-existent cases, which the attorneys cited in a filing); Park v. Kim (2d Cir. 2024) (referring attorney to the Court's Grievance Panel for relying on ChatGPT to write a brief containing non-existent cases).

In Kohls, the expert's "citation to fake, AI-generated sources in his declaration … shatter[ed] his credibility with th[e] Court" such that his testimony would not be reliable as required by [the federal rules related to admissibility of expert evidence]. However, the Court emphasized that experts can use "AI for research purposes" given its "potential to revolutionize legal practice for the better." [Admissibility] issues arise only "when attorneys and experts abdicate their independent judgment and critical thinking skills in favor of ready-made AI-generated answers."

Here, there is little risk that Lehnert's use of ChatGPT impaired his judgment regarding proper methods for securing the maul's head to its handle. The record from the hearing reflects that Lehnert used ChatGPT after he had written his report to confirm his findings, which were based on his decades of experience joining dissimilar materials. During the hearing, Lehnert professed to being "quite amazed" that the "ChatGPT search confirmed what [he] had already opined." …

There is no indication that Lehnert used ChatGPT to generate a report with false authority or that his use of AI would render his testimony less reliable. Accordingly, the Court finds no issue with Lehnert's use of ChatGPT in this instance….

The post No Problem with Expert's Using ChatGPT to Confirm His Work appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: April 25, 1938

4/25/1938: United States v. Carolene Products decided.

The post Today in Supreme Court History: April 25, 1938 appeared first on Reason.com.

[Eugene Volokh] Apparent AI Hallucinations in Defense Filing in Coomer v. Lindell / My Pillow Election-Related Libel Suit

From yesterday's decision by Judge Nina Wang in Coomer v. Lindell (D. Colo.):

As discussed extensively on the record, after confirming with Mr. Kachouroff that he signed the Opposition consistent with his obligations under Rule 11 of the Federal Rules of Civil Procedure, the Court identified nearly thirty defective citations in the Opposition. These defects include but are not limited to misquotes of cited cases; misrepresentations of principles of law associated with cited cases, including discussions of legal principles that simply do not appear within such decisions; misstatements regarding whether case law originated from a binding authority such as the United States Court of Appeals for the Tenth Circuit; misattributions of case law to this District; and most egregiously, citation of cases that do not exist.

Despite having every opportunity to do so, Mr. Kachouroff declined to explain to the Court how the Opposition became replete with such fundamental errors. For example, when confronted with the first misquotation in a parenthetical appearing on page 3 of the Opposition—purportedly drawn from Mata v. City of Farmington, 798 F. Supp. 2d 1215, 1227 (D.N.M. 2011)—Mr. Kachouroff stated to the Court:

Your Honor I may have made a mistake and I may have paraphrased and put quotes by mistake. I wasn't intending to mislead the Court. I don't think the quote is far off from what you read to me.

When asked how a case from the United States District Court for the Eastern District of Kentucky became attributable to the United States District Court for the District of Colorado, Mr. Kachouroff indicated that he "had given the cite checking to another person," later identified as Ms. DeMaster. When asked whether he would be surprised to find out that the citation Perkins v. Fed. Fruit & Produce Co., 945 F.3d 1242, 1251 (10th Cir. 2019) appearing on page 6 of Defendants' Opposition did not exist as an actual case, Mr. Kachouroff indicated that he would be surprised.

{There is a District of Colorado case of Perkins v. Fed. Fruit & Produce Co., 945 F. Supp. 2d 1225 (D. Colo. 2013), appeal dismissed, No. 13-1250 (10th Cir. July 29, 2013), but such case does not stand for the proposition asserted by Defendants, i.e., that a Court of Appeals affirmed "admitting evidence of prior emotional difficulties to challenge damages claims."} Time and time again, when Mr. Kachouroff was asked for an explanation of why citations to legal authorities were inaccurate, he declined to offer any explanation, or suggested that it was a "draft pleading."

Not until this Court asked Mr. Kachouroff directly whether the Opposition was the product of generative artificial intelligence did Mr. Kachouroff admit that he did, in fact, use generative artificial intelligence. After further questioning, Mr. Kachouroff admitted that he failed to cite check the authority in the Opposition after such use before filing it with the Court—despite understanding his obligations under Rule 11 of the Federal Rules of Civil Procedure. Even then, Mr. Kachouroff represented that he personally outlined and wrote a draft of a brief before utilizing generative artificial intelligence. Given the pervasiveness of the errors in the legal authority provided to it, this Court treats this representation with skepticism….

The court ordered defendants' lawyers to explain why they shouldn't be sanctioned, and why they shouldn't be referred for disciplinary proceedings. It added,

Counsel will specifically address, under the oath subject to the penalty of perjury, the circumstances surrounding the preparation of the Opposition to Plaintiff's Motion in Limine, including but not limited to whether Defendants were advised and approved of their counsel's use of generative artificial intelligence ….

No later than May 5, 2025, defense counsel of record SHALL CERTIFY that a copy of this Order has been provided to Defendant Michael Lindell personally ….

One might say Mr. Kachouroff was caught with his pants down, though I think the current problem is worse than the earlier one:

Thanks to my colleague Justin Grimmer for the pointer (to the AI hallucination matter, not the pants one).

The post Apparent AI Hallucinations in Defense Filing in Coomer v. Lindell / My Pillow Election-Related Libel Suit appeared first on Reason.com.

[Ilya Somin] Federal Court Blocks Trump Executive Order Denying Federal Funds to Sanctuary Cities

[The decision is based on precedents in similar cases during Trump's first term.]

(NA)

During Donald Trump's first term, federal courts repeatedly struck down his efforts to pressure immigration "sanctuary" jurisdictions by pulling federal grants, and other coercive measures. Last November, I predicted we would see a repeat of this pattern under Trump 2.0.

That prediction (which was not a hard one to make) began to be vindicated today, as federal district Judge William Orrick issued a ruling blocking  the federal government from withholding federal funds from San Francisco and fifteen other sanctuary jurisdictions which had filed suit challenging a Trump executive order to that effect.

As Judge Orrick notes in his ruling, the new anti-sanctuary executive order is similar to  an earlier 2017 Trump EO, and is unconstitutional for the same reasons:

In 2017, President Donald Trump issued Executive Order 13,768 ("EO 13,768"), titled
"Enhancing Public Safety in the Interior of the United States," which was directed at so-called "sanctuary jurisdictions." The City and County of San Francisco and County of Santa Clara sued, arguing that Section 9 of EO 13,768 was unconstitutional. I found that they had pre-enforcement standing, that they were likely to succeed on the merits because Section 9(a) of EO 13,768 was unconstitutional, and that they faced irreparable harm absent an injunction. I enjoined Section 9(a) of EO 13,768. The Ninth Circuit affirmed. Cnty. of Santa Clara v. Trump, et al., 250 F. Supp. 3d 497 (N.D. Cal. Apr. 25, 2017) (Preliminary Injunction Order), aff'd, 897 F.3d 1225 (9th Cir. 2018).

Here we are again. Shortly after taking office in 2025, President Trump issued Executive Orders 14,159 ("Protecting the American People Against Invasion") ("EO 14,159") and 14,218 ("Ending Taxpayer Subsidization of Open Borders") ("EO 14,218") (together, the "2025 Executive Orders"), the language and purpose of which mirror EO 13,768. Like EO 13,768, EO 14,159 directs the United States Attorney General and the United States Department of Homeland Security ("DHS") Secretary to withhold federal funds from "sanctuary jurisdictions," cities and counties that limit the use of local resources to enforce federal immigration law. EO 14,218 directs every federal agency to ensure that "federal payments" to localities do not "by design or effect" "abet so-called 'sanctuary' policies that seek to shield illegal aliens from deportation….

Precedent in the Ninth Circuit and the orders of this court show why the Cities and
Counties have established that they are likely to prevail on the merits of at least their separation of powers, Spending Clause, and Fifth and Tenth Amendment claims. The challenged sections in the 2025 Executive Orders and the Bondi Directive that order executive agencies to withhold, freeze, or condition federal funding apportioned to localities by Congress, violate the Constitution's separation of powers principles and the Spending Clause, as explained by the Ninth Circuit in the earlier iteration of this case in 2018; they also violate the Fifth Amendment to the extent they are unconstitutionally vague and violate due process. See City & Cnty. of S.F. v. Trump, 897 F.3d 1225, 1234– 35 (9th Cir. 2018); Cnty. of Santa Clara v. Trump, et al., 250 F. Supp. 3d 497, 530–32, 534–36 (N.D. Cal. Apr. 25, 2017). The 2025 Executive Orders' directives to withhold or freeze federal funding to sanctuary jurisdictions also violate the Tenth Amendment because they impose coercive condition intended to commandeer local officials into enforcing federal immigration practices and law. See Cnty. of Santa Clara, 250 F. Supp. 3d at 533. And as the order that will follow this one makes plain, the Cities and Counties have also shown a likelihood of success on the merits of their Administrative Procedure Act ("APA") claim: the Bondi Directive's order to freeze all DOJ funds is likely arbitrary and capricious, contrary to the Constitution and an ultra vires final agency action under the APA. 5 U.S.C. § 706(2).

As explained in detail in my Texas Law Review article on litigation arising from Trump's first-term actions targeting sanctuary jurisdictions, executive orders like this one violating constitutional rules on both federalism and separation of powers, because they seek to "commandeer" state and local governments and impose conditions on federal grants that were not authorized by Congress. That article includes discussion of the rulings cited in Judge Orrick's opinion today (including his own earlier decisions).

This is just a ruling on a preliminary injunction. We don't yet have a final ruling on the merits, by Judge Orrick. And any such ruling is likely to be appealed. But the combination of today's decision and precedents from Trump's first term - issued by both liberal and conservative judges - make it highly likely that Trump's new anti-sanctuary executive orders will ultimately meet the same fate as the old ones.

For more on the constitutional issues involved, see my Texas Law Review article and this shorter 2018 article I wrote for The Hill. In a recent article for the NYU Brennan Center, I explained how sanctuary jurisdictions can help constrain Trump's efforts at mass deportation, but also noted possible ways Trump could try to circumvent them.

The post Federal Court Blocks Trump Executive Order Denying Federal Funds to Sanctuary Cities appeared first on Reason.com.

[Josh Blackman] "When the Supreme Court Spoke With One Voice" But Was Ignored By Everyone

[Cooper v. Aaron is not a model the Roberts Court should try to emulate.]

Last week, in Garcia v. Noem, Judge Wilkinson invoked President Eisenhower's decision to send federal troops to integrate Central High School in Little Rock. And yesterday, Jeff Toobin called on the Roberts Court to reaffirm Cooper v. Aaron to stop Trump. His piece was titled, "When the Supreme Court Spoke With One Voice." Toobin wrote:

The choice for the court is clear: Either the justices will reaffirm the holding of Cooper that the federal judiciary is "supreme in the exposition of the law of the Constitution" or they will cede that authority to Mr. Trump and his aides. Abdicating its role to the executive branch would not only demean the judicial function but also invite chaos, as the nation wonders, case by case, which branch of government has the last word.

To preserve their authority, as well as the rule of law, the justices must reclaim what their predecessors in 1958 knew to be the only honorable and lawful course. And when they do, it would be even better if all nine of them in 2025 also signed their names.

In Cooper, the Supreme Court may have spoken with one voice, but it was largely ignored.

The crisis in Little Rock, and the Supreme Court's resulting decision in Cooper v. Aaron, are poorly understood. In my post, I included an excerpt from our 100 Cases book which summarizes the case. I would also recommend my article in the Georgetown Law Journal, The Irrepressible Myth of Cooper v. Aaron.

Should Cooper provide a basis for the Supreme Court to reaffirm the principle of judicial supremacy against President Trump? No, it should not.

First, Cooper was not a victory for the Court. The Court announced this principle of judicial supremacy. In response, Little Rock and the entire South shrugged. Public schools were closed, transferred to private parties, and remained segregated. Despite a torrent of massive resistance in the formof lower court litigation, the Supreme Court was not able to rely on Cooper's principle of judicial supremacy. I suspect the Court realized that its unanimous judgment, signed by nine Justices, had little effect.

Second, I'll offer a modest defense of Cooper. In Brown I, the Supreme Court unanimously ruled that the Fourteenth Amendment required that schools must be integrated. This ruling was decades in the making. And Brown II gave the lower courts ample discretion to allow integration with "all deliberate speed." The Court was not trying to force integration on an unwilling public. In response, the "massive resistance" frustrated rulings at every juncture, even if orders were not overly flouted. If ever there was an occasion to invoke judicial supremacy, the enforcement of Brown would seem to be such a case.

The facts of the present day are quite different. We do not have a definitive ruling by the Supreme Court on the scope of the Alien Enemies Act. (I actually think the Court will bypass the 5th Circuit and all of the procedural issues by simply ruling against Trump on the merits.) Rather, we have a series of hastily issued orders by federal judges, some of which were delivered orally, where there was arguable ambiguity about what was required. Can we really compare the "all deliberate speed" order in Brown II to an oral order issued by Judge Boasberg on a Saturday afternoon to "turn the planes around"? Worse still, the only thing the Supreme Court has said about Boasberg's order was that he improperly exercised jurisdiction over the case. This is not the case to wage a confrontation with the executive branch.

Third, Cooper ushered in the Warren Court's reign of judicial activism. Once judges sip from the chalice of supremacy, all other humility quickly falls. The Roberts Court has made good on curbing many of the excesses from this era, but much of the precedent remains, as Justice Scalia would say, "water under the bridge." Should the Court assert judicial supremacy against President Trump in this case, it will likely have to assert it again and again in controversies unimaginable.

Fourth, speaking of President Trump, there is a big difference between Little Rock and CECOT. During the Civil Rights Era, the clash was between the Supreme Court and the states. President Eisenhower, perhaps begrudgingly, backed up the judiciary. Today we have a conflict of a very different nature between the Supreme Court and the executive. The better analogy is whether James Madison would have actually delivered Marbury's commission, or whether President Lincoln would have ordered the release of Merryman. Here, no one will call the 101st Airborne to help Chief Justice Roberts or Judge Boasberg. To the contrary, I think most Americans would shrug their shoulders about whether aliens who are otherwise subject to removal spend their days in CECOT.

Fifth, I worry about the risk of the Supreme Court issuing an order truly out of its bounds in the separation of powers, and that order is ignored. Much of the criticism focuses how on that effort would empower Trump. But I think the even more compelling concern is how it would weaken the Court, perhaps irreparably. A court that issues a ruling that can be disregarded is no longer a court. That premise should inform the sorts of orders that are issued against the executive branch. Justice Alito stated the issue plainly: "Both the Executive and the Judiciary have an obligation to follow the law."

For those interested, I debated some of these issues at my law school with my dear colleague, Professor Ryan Nelson.

The post "When the Supreme Court Spoke With One Voice" But Was Ignored By Everyone appeared first on Reason.com.

[Sasha Volokh] Pro-Life Amicus Brief in Georgia Adult-Entertainment Case

[Two pro-life groups and five law professors urge the Supreme Court to take up Georgia Ass'n of Club Executives v. Georgia.]

Yesterday, I blogged about the First Amendment Scholars' brief (filed by Chris Paolella of Reich & Paolella LLP) supporting the cert petition I filed in Georgia Ass'n of Club Executives v. Georgia. (For my blogging about the cert petition itself, see Parts 1 and 2  here, and see also the amicus brief supporting the cert petition filed by the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass'n. The state's brief is due in a month. See also this news article about the amicus briefs in Bloomberg Law.)

Today, I'll talk about the amicus brief filed by Secular Pro-Life, Progressive Anti-Abortion Uprising, and five law professors (Helen Alvaré of George Mason, Teresa Stanton Collett of University of St. Thomas (MN), George Dent of Case Western, Stephen Gilles of Quinnipiac, and Robert Pushaw of Pepperdine).

Thanks to Kelsey Hazzard of Secular Pro-Life and my Emory Law colleague Tom Arthur for writing and filing this brief. More generally, thanks to the organizations and people involved for recognizing that we're all in this together: pro-life people who oppose Hill v. Colorado should support this cert petition even if they have no interest in (or are even opposed to) adult entertainment, because high-level First Amendment doctrines (like the distinction between content discrimination vs. content neutrality) are rarely hermetically sealed to particular business models! Supporting Reed v. Town of Gilbert and making it extremely hard for the government to discriminate in regulation and taxation pays dividends across the board, whether you support nude dancing or anti-abortion counseling.

Here's the text of the (interesting parts of the) brief:

Interest of Amici Curiae

Secular Pro-Life is a not-for-profit organization whose mission is to advance secular arguments against abortion; create space for atheists, agnostics, and other secularists interested in anti-abortion work; and build interfaith coalitions of people interested in advancing secular arguments. Secular Pro-Life envisions a world in which people of all faith traditions, political philosophies, socioeconomic statuses, sexualities, races, and age groups oppose abortion.

Financial precarity motivates nearly three-quarters of abortions. The pro-life movement offers practical resources to help families overcome financial barriers and choose life for their children—but these resources are only useful to the extent that pregnant mothers know about them before it is too late. Therefore, Secular Pro-Life strongly supports the practice of peaceful sidewalk outreach to prevent abortions. Sidewalk outreach is especially critical for religiously unaffiliated mothers, who are disproportionately at risk for abortion compared to the general population, and who may not otherwise learn about free pregnancy supports that are commonly advertised through faith-based channels.

Secular Pro-Life takes an interest in this case because Hill v. Colorado, 530 U.S. 703 (2000), inhibits life-saving sidewalk outreach and unconstitutionally censors the speech of Secular Pro-Life's members.

Progressive Anti-Abortion Uprising (PAAU) is a single-issue non-profit organization committed to ending elective abortion, focusing on issues that land at the intersection of pregnancy and parenting. Non-violent direct action, including sidewalk advocacy, is at the core of PAAU's mission. Buffer zone laws of the type this Court upheld in Hill v. Colorado are designed to impede peaceful challenges to the oppressive status quo.

The following professors teach and/or research in the area of law and religion and are interested in the development of sound doctrine in this area, as well as the protection of free speech rights in Hill v. Colorado-type contexts. [List of professors and affiliations omitted because I gave their names above.]

Summary of Argument

Hill v. Colorado, 530 U.S. 703 (2000), was egregiously wrong on the day it was decided and remains so today. Relying on a line of cases that began with City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), this Court in Hill treated buffer zone laws as content-neutral time, place, and manner regulations subject to only intermediate First Amendment scrutiny. This Court should instead apply strict scrutiny because buffer zone laws are, in both theory and practice, content-based restrictions on disfavored anti-abortion speech.

"To be sure, this Court has not uttered the phrase 'we overrule Hill.'" Coalition Life v. City of Carbondale, 145 S. Ct. 537, 540 (2025) (Thomas, J., dissenting from denial of certiorari). But "Hill has been seriously undermined, if not completely eroded." Id. at 542.

Although this case does not involve a buffer zone, Petitioner's direct challenge to the mistaken reasoning of City of Renton and its progeny offers this Court an ideal vehicle to, at long last, utter the phrase "we overrule Hill" and restore freedom of speech to pro-life Americans.

Argument

I. Hill v. Colorado Should Be Overruled.

In Hill v. Colorado, 530 U.S. 703 (2000), this Court wrongly upheld a Colorado statute that criminalized "knowingly approach[ing]" within eight feet of a person, without their consent, "for the purpose of . . . engaging in oral protest, education, or counseling" near the entrance of a "health-care facility." Colo. Rev. Stat. § 18-9-122(3). This type of statute is popularly known as a buffer zone law.

As Justice Scalia pointed out in his dissent, buffer zone laws like the one enacted in Colorado are facially content-discriminatory: "Whether a speaker must obtain permission before approaching within eight feet—and whether he will be sent to prison for failing to do so—depends entirely on what he intends to say when he gets there." Hill, 530 U.S. at 742 (Scalia, J., dissenting). Moreover, although the statute defined "health care facility" broadly, it was clear from the legislative history and context that the buffer zone was enacted for the benefit of abortion facilities to discourage protests against them.

The majority nevertheless treated the buffer zone like a content-neutral regulation, opining that "the statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries." Id. at 723 (majority opinion). That reasoning is pretextual to the point of undermining confidence in the Court. "[I]t blinks reality to regard [Colorado's] statute, in its application to oral communications, as anything other than a content-based restriction upon speech in the public forum." Id. at 748 (Scalia, J., dissenting); see also McCullen v. Coakley, 573 U.S. 464, 501 (2014) (Scalia, J., concurring in judgment) ("It blinks reality to say . . . that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based.").

This Court has since come to appreciate that the criminal prohibition on "oral protest, education, or counseling" at issue in Hill was not content-neutral and in fact discriminated against pro-life speakers. In Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), this Court noted that its prior abortion jurisprudence had "distorted First Amendment doctrines," identifying Hill as the primary example of that First Amendment abortion distortion. Id. at 287 & n.65. Hill is an "erroneous decision" which used a "long-discredited approach" to uphold a "blatantly content-based prohibition" on pro-life speech near abortion facilities. City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 86-87 (2022) (Thomas, J., dissenting); see also Reed v. Town of Gilbert, 576 U.S. 155, 167 (2015) (relying on Hill dissents).

Hill immediately received overwhelming criticism from legal scholars. See, e.g., Jamin B. Raskin & Clark L. LeBlanc, Disfavored Speech About Favored Rights: Hill v. Colorado, the Vanishing Public Forum and the Need for an Objective Speech Discrimination Test, 51 Am. U. L. Rev. 179, 182-83 (2001); Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737-38 (2001); Constitutional Law Symposium, Professor Michael W. McConnell's Response, 28 Pepp. L. Rev. 747, 752 (2001) (quoting Prof. Chemerinsky as being "troubled by the rationale that was given" in Hill); Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places 101 (2008); Ronald J. Krotoszynski, Jr. & Clint A. Carpenter, The Return of Seditious Libel, 55 UCLA L. Rev. 1239, 1262-63 (2008). In the quarter-century since, Hill has only continued its slide into this Court's anti-canon. "Yet, lower courts continue to feel bound by it" and continue to uphold buffer zone laws. Coalition Life, 145 S. Ct. at 538 (Thomas, J., dissenting from denial of certiorari).

With the notable exception of Hill, this Court's First Amendment jurisprudence reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Among the most important of those debates is "if and when prenatal life is entitled to any of the rights enjoyed after birth." Dobbs, 597 U.S. at 263. And nowhere is that deliberation more consequential than in the very place that buffer zone laws aim to censor it.

Therefore, this Court should overrule Hill v. Colorado.

II. The "Secondary Effects Doctrine" Ties This Case to Hill.

At first blush, amici might seem to have little in common with Petitioner—a trade association for adult entertainment clubs in Georgia. But both find themselves in conflict with the same line of cases that undermines their First Amendment rights.

Petitioner presents the following question:

A Georgia statute imposes a tax that, on its face, singles out businesses defined by the content of their expression; the State seeks to justify the tax by the need to address "secondary effects." Is this tax subject to strict scrutiny under the First Amendment because it is facially content-discriminatory, as recently affirmed by Reed v. Town of Gilbert, 576 U.S. 155 (2015), or does a content-neutral rationale make the tax subject to intermediate scrutiny under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)?

Cert. Pet. at i. City of Renton concerned "a constitutional challenge to a zoning ordinance . . . that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school." City of Renton, 475 U.S. at 43. This Court acknowledged that "the ordinance treats theaters that specialize in adult films differently from other kinds of theaters." Id. at 47. And content-based restraints on speech are normally subject to strict scrutiny. See id. at 46-47 (citing Carey v. Brown, 447 U.S. 455, 462-63 & n.7 (1980); Police Dep't of Chi. v. Mosley, 408 U.S. 92, 95, 98-99 (1972)). "Nevertheless, . . . the Renton ordinance is aimed not at the content of the films shown at 'adult motion picture theatres,' but rather at the secondary effects of such theaters on the surrounding community." Id. at 47.

This Court further developed this idea in Ward v. Rock Against Racism, 491 U.S. 781 (1989) (upholding regulation of sound amplification in a bandshell), opining that "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id. at 791 (citing City of Renton, 475 U.S. at 47-48). The "incidental" impact on speech was outweighed by the governmental interests in addressing secondary effects, namely, "avoid[ing] undue intrusion into residential areas and other areas of the park" and "ensur[ing] the quality of sound at Bandshell events." Id. at 791-92.

The sound amplification ordinance at issue in Ward is readily distinguishable from content-based buffer zone laws. Nevertheless, Colorado relied upon Ward to justify its pretextual censorship of pro-life speech. "All four of the state court opinions upholding the validity of [the Colorado buffer zone law] concluded that it is a content-neutral time, place, and manner regulation. Moreover, they all found support for their analysis in Ward v. Rock Against Racism." Hill, 530 U.S. at 719. Supporters of the buffer zone cited a secondary-effects interest in "unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests." Id. at 715. The Hill majority analogized those rationales to the "interest in preserving tranquility" that had led this Court to apply less than strict scrutiny in Ward. Id. at 716.

And so, adult entertainers and right-to-life advocates find themselves sharing the same doctrinal bed. This Court's use of intermediate scrutiny in City of Renton and Hill "'is incompatible with current First Amendment doctrine as explained in Reed.'" Bruni v. City of Pittsburgh, 141 S. Ct. 578 (2021) (opinion of Thomas, J.) (quoting Price v. Chicago, 915 F.3d 1107, 1117 (7th Cir. 2019)). As Justice Thomas has written, "the Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents." Id.

This is that case. The question presented here has significant implications for the free exchange of ideas concerning abortion and the right to life. Both Petitioner and amici deserve the same First Amendment guarantees enjoyed by uncontroversial speakers. This Court should restore consistency to First Amendment jurisprudence by overturning the City of Renton/Hill line of cases in favor of Reed's strict scrutiny approach. [Footnote: Alternatively, as Petitioner suggests, the Court could substantially reform its First Amendment jurisprudence by limiting City of Renton's application to zoning matters. Cert. Pet. at 6-7, 32. This approach would also have the effect of overruling Hill.]

III. This Case Provides an Ideal Vehicle to Overrule Hill.

"This Court has received a number of invitations to make clear that Hill lacks continuing force. Some of those invitations have arisen in cases with thorny preliminary issues or other obstacles to our review." Coalition Life, 145 S. Ct. at 541 (Thomas, J., dissenting from denial of certiorari) (citing Bruni, 141 S. Ct. at 578 (opinion of Thomas, J.)). The buffer zone challenged in Bruni v. Pittsburgh, for instance, involved "unclear, preliminary questions about the proper interpretation of state law." Bruni, 141 S. Ct. at 578.

But unlike in Bruni and other recent buffer zone cases, there are no side issues in this case that would preclude this Court's effective review. The First Amendment question has been fully litigated, and the Georgia Supreme Court expressly relied on City of Renton in its analysis. Ga. Ass'n of Club Executives, Inc. v. State, 908 S.E.2d 551, 561 (Ga. 2024); Cert. Pet. at 15a. City of Renton and its intermediate scrutiny progeny, including Hill, are ripe for review.

Conclusion

This Court should grant the petition for a writ of certiorari.

The post Pro-Life Amicus Brief in Georgia Adult-Entertainment Case appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: April 24, 1963

4/24/1963: Sherbert v. Verner argued.

The post Today in Supreme Court History: April 24, 1963 appeared first on Reason.com.