Eugene Volokh's Blog, page 117

[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Ilya Somin] Twelve States File Lawsuit Challenging Trump's IEEPA Tariffs

[The suit resembles previous ones on the same subject filed by the state of California, and by the Liberty Justice Center and myself.]

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Today, twelve blue and purple states, led by the state of Oregon, filed a lawsuit in the US Court of International Trade challenging Donald Trump's massive IEEPA tariffs. Their complaint is available here. The arguments advanced by the multistate plaintiffs are similar to those presented in the lawsuit the Liberty Justice Center and I presented in a similar lawsuit filed on behalf of five US businesses severely harmed by the tariffs (also filed in the CIT). They also resembled those made by the state of California in a case filed in federal district court.

Like California and us, the twelve states argue that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn't authorize tariffs at all, and that Trump administration's position runs afoul of constitutional nondelegation rules (though they shy away from the term "nondelegation." I think it might help if they were more explicit in indicating the tariffs also go against the"major questions" doctrine, and 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). But perhaps they may go into these issues more fully as the case progresses.

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

While our lawsuit is limited to the massive "Liberation Day" tariffs, the multistate plaintiffs - like California - also challenge earlier IEEPA tariffs imposed on Canada, Mexico, and China, supposedly justified by the threat of fentanyl smuggling. I argued that these tariffs are also illegal in a February post where I first outlined the idea of challenging IEEPA tariffs under the nondelegation and major questions doctrines.

There are also two narrower lawsuits challenging the Trump IEEPA tariffs: one brought by the New Civil Liberties Alliance (challenging tariffs against China on behalf of an importer), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada). I expect there will be more lawsuits filed by other groups.

We welcome the twelve states to this fight!

It's impressive this issue has united such a diverse array of people and institutions, including the conservatives at the NCLA, libertarians like myself and many of the LJC lawyers I am working with, blue and purple state governments, Native Americans, and a bipartisan group of prominent legal scholars and former government officials.

Trump's tariff power grab has brought us all together. Perhaps he alone could do it!

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[Ilya Somin] Federal District Court Rules Against Trump in Alien Enemies Act Case

[The court ruled that Trump invoked the AEA illegally, blocks deportation of Venezuelan migrants who filed the case, and sets out standards for notifying them of their rights to challenge their deportation.]

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

Yesterday, Judge Charlotte Sweeney of the federal District Court for the District of Colorado issued an important ruling against the Trump Administration, involving attempted deportations under the Alien Enemies Act of 1798. The Act can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." Judge Sweeney ruled (correctly) that none of these preconditions have been met. She also blocked deportation and transfer of the Venezuelan migrant plaintiffs detained in her district, and applied the Supreme Court's earlier ruling requiring  that "AEA detainees must receive notice… they are subject to removal under the Act" and that "[t]he notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

Here is an excerpt from her discussion of the requirements of the AEA:

Petitioners' first argument…., proceeds from a straightforward premise. The President's authority under the Proclamation is "vested" under the Act. TheAct demands, as a "statutory requirement," an "invasion or predatory incursion…." And because the Act's "text and history" use these terms "to refer to military actions indicative of an actual or impending war"—not "mass illegal migration" or "criminal activities"—the Act cannot sustain the Proclamation… The Court agrees with Petitioners….

The term 'invasion' was a legal term of art with a well-defined meaning at the Founding." J.G.G. v. Trump, No. 25-5067, 2025 WL 914682, at *8 (D.C. Cir. Mar. 26, 2025) (Henderson, J., concurring); see also id. (defining "invasion as a "'[h]ostile entrance upon the right or possessions of another; hostile encroachment,' such as when 'William the Conqueror invaded England'") (quoting Samuel Johnson, Invasion, sense 1, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773)); (reciting second dictionary defining "invasion as a "'hostile entrance into the possession of another; particularly the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force'") (quoting Noah Webster, Invasion, sense 1, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).

The Court finds these at-the-Founding definitions persuasive in demonstrating what "invasion" does—and does not—mean as a matter of plain language. "Invasions" contemplate military action. J.G.G., 2025 WL 914682, at *9 ("The term 'invasion' was well known to the Fifth Congress and the American public circa 1798. The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense.") (Henderson, J., concurring). And at a bare minimum, "invasion" means more than the Proclamation's description of [the drug gang Tren de Aragua's] "infiltrat[ion]," "irregular warfare," and "hostile actions" against the United States….

Definitions of "predatory incursion" likewise reveal a mismatch between what the phrase means and what the Proclamation says. As with the analysis of earlier definitions of "invasion," the Court again finds Judge Henderson's research and analysis of Founding era definitions for "predatory" and "incursion"—which Petitioners cite, and to which they direct the Court—persuasive in its own analysis of Petitioners' TRO motion. See…. J.G.G., 2025 WL 914682, at *10 (Henderson, J., concurring). Explained in Judge Henderson's concurring statement to the D.C. Circuit's per curiam order denying emergency stays prior to the Supreme Court's ultimate intervention in Trump v. J. G. G., 2025 WL 1024097, at *1, the "predatory" nature of an "incursion" "includes a '[p]lundering,' such as the 'predatory war made by Scotland.'" 2025 WL 914682, at *10 (Henderson, J.,concurring) (original alteration and emphasis) (citing Samuel Johnson, Predatory, sense 1, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773))….

Petitioners contend, as with its failures to identify an "invasion" or "predatory incursion," the Proclamation likewise fails to assert a "foreign nation or government" is "invading the United States…."  The Court agrees with Petitioners. The Court discerns little reason to linger on this point, especially where, as Petitioners observe, the Proclamation finds TdA is "closely aligned with [and] infiltrated[] the Maduro regime." Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, 90 FR 13033. The Proclamation does not find TdA itself is a foreign nation, country, or government. At bottom, the Proclamation fails to adequately find or assert TdA is a "foreign nation or government," § 21, sufficient to justify the Act's invocation.

Judge Sweeney's analysis of the meaning of "invasion"and "predatory incursion" largely tracks that of Judge Karen LeCraft Henderson of the DC Circuit, in her opinion for the DC Circuit, in a ruling reversed by the Supreme Court on appeal, for procedural reasons. I have made similar points in my own previous writings on the AEA and the meaning of "invasion." Judge Sweeney also follows the DC Circuit and the Supreme Court in rightly rejecting the argument that interpretation of the AEA is a "political question" not subject to judicial review.

But this ruling is the first to address the issue of whether TdA's actions qualify as those of a "foreign nation or government." Judge Sweeney rightly concludes they obviously don't. Her conclusion is further bolstered by US intelligence assessments indicating that TdA is not acting at the behest of the Venezuelan government.

Judge Sweeney also interpreted the Supreme Court's ruling on notice to detainees to require the following:

The Court orders the following regarding the notice Respondents and the government must provide Petitioners and the provisionally certified class of individuals they seek to represent: Respondents shall provide a twenty-one (21) day notice to individuals detained pursuant to the Act and Proclamation. Such notice must state the government intends to remove individuals pursuant to the Act and Proclamation. It must also provide notice of a right to seek judicial review, and inform individuals they may consult an attorney regarding their detainment and the government's intent to remove them. Such notice must be written in a language the individual understands.

That all seems right to me.

Litigation over AEA deportations is continuing in multiple courts, and this ruling is sure to be appealed. But Judge Sweeney has issued a well-reasoned ruling that I hope other judges will follow.

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[Ilya Somin] Bipartisan Group of Prominent Legal Scholars and Former Government Officials Files Amicus Brief Supporting Our Case Challenging Trump's "Liberation Day" Tariffs

[Signers include Steve Calabresi, Harold Koh, Richard Epstein, Michael McConnell, Alan Sykes, former Attorney General Michael Mukasey, and others.]

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A bipartisan group of prominent legal scholars and former government officials have filed an amicus brief supporting the lawsuit against Donald Trump's "Liberation Day" tariffs, recently filed by the Liberty Justice Center and myself, on behalf of five US businesses severely harmed by the policy.

The brief unites big-name constitutional law scholars across the political spectrum in a way I have rarely seen. Legal scholars on the brief include Steve Calabresi (Northwestern), Harold Koh (Yale), Richard Epstein (NYU), Michael McConnell (Stanford, also former federal judge), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana).

Steve Calabresi is a famed conservative constitutional law scholar and co-founder of the Federalist Society. Michael McConnell is also one of nation's leading conservative/originalist constitutional law scholars, and Richard Epstein is probably the world's leading libertarian legal scholar.  Calabresi literally (with Christopher Yoo) wrote the book on unitary executive theory. If he says an assertion of executive power exceeds constitutional bounds, it almost certainly does! McConnell is also a leading expert on executive power.

Koh, Sykes, and Magliocca are leading progressive scholars. Koh is one of the nation's leading experts on the constitutional law of foreign affairs, and Sykes on international economic and trade law. Magliocca is a prominent writer on constitutional history.

Former government officials joining the brief include former Attorney General Michael Mukasey, former Virginia Governor and Senator George Allen, former Senator and Secretary of Defense Charles Hagel, and more.

I never would have expected to see Richard Epstein, Steve Calabresi, and Harold Koh all on the same brief on a major issue. But here they are, together opposing "taxation by proclamation." Donald Trump brought them together. He alone could do it!

Many thanks to Josh Claybourn and Gerard Magliocca for their work bringing this group together.

Here is an excerpt from the brief's summary of argument:

What unites these amici is a shared conviction that process matters—that how
we govern is as vital as what we decide. The powers to tax, to regulate commerce, and
to shape the nation's economic course must remain with Congress. They cannot drift
silently into the hands of the President through inertia, inattention, or creative readings of statutes never meant to grant such authority. That conviction is not partisan. It is constitutional. And it strikes at the heart of this case.

This dispute is not about the wisdom of tariffs or the politics of trade. It is about who holds the power to tax the American people. May a President, absent a clear delegation from Congress and without guidance that amounts to an intelligible principle, unilaterally impose sweeping tariffs under laws never designed for that purpose? This is not a debate over outcomes but a test of structure. It asks not what should happen, but who decides.

The Constitution gives a clear answer. Article I vests Congress—not the President—with the power to "lay and collect Taxes, Duties, Imposts and Excises," and to "regulate Commerce with foreign Nations." Unless Congress has delegated that authority through a valid and clearly bounded framework, the President may not impose tariffs….

In April 2025, President Trump proclaimed a sweeping tariff regime that touches nearly every imported good sold in the United States…. 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….

But no statute authorizes what the President has done. The laws cited permit limited and targeted actions under narrow conditions. They do not authorize sweeping economic realignment. They do not permit unilateral taxation of vast sectors of the U.S. economy. These duties came not from Congress, but from a claim of executive power detached from constitutional limits….

IEEPA, the central statute invoked, cannot bear this weight. Enacted in 1977 to rein in presidential overreach, IEEPA allows the President to impose sanctions in response to genuine emergencies—not to reorder the economy in response to long-term trends. Its legislative history is clear: Congress never intended it as a backdoor for permanent tax policy, nor as a means of sidestepping Article I.

The core principle urged by amici is this: IEEPA and related statutes do not grant the President the power to impose tariffs of this kind or scope. That power remains squarely within the legislative domain. The Constitution places decisions about taxation and commerce in Congress's hands—not as a formality, but as a structural safeguard of democratic accountability…..

This case requests this Court apply the principles which have been reaffirmed time and again: that Congress makes the law, and the Executive enforces it; that major policies require explicit legislation; and that the Constitution does not permit taxation by proclamation. These principles are neither new nor partisan. They are the foundation of the American republic.

The stakes here are immediate and profound—not because of any particular trade policy, but because of the process by which that policy was imposed. For decades, the United States has anchored a global trading system built on transparency, deliberation, and the rule of law. That stability is jeopardized when core powers—like the power to tax—are exercised unilaterally, without congressional input, statutory grounding, or public explanation. The President's tariff proclamations bypass the constitutional framework that lends legitimacy and predictability to American lawmaking. Already, foreign governments are reexamining their trade commitments in response. If courts permit this path to stand unreviewed, it will invite escalating disruption—not just to international commerce, but to the very norms that sustain constitutional governance. The Court's intervention is not merely appropriate; it is essential to reaffirm that in a republic, process cannot be subordinated to expediency.

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[Sasha Volokh] First Amendment Scholars' Amicus Brief in Georgia Adult-Entertainment Case

[22 law professors urge the Supreme Court to take up Georgia Ass'n of Club Executives v. Georgia.]

Regular readers will remember my blogging (Parts 1 and 2) about the cert petition I filed in Georgia Ass'n of Club Executives v. Georgia, where we raised a First Amendment challenge to a state tax on adult entertainment establishments, and about the amicus brief supporting the cert petition filed by the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass'n.

Now, more amicus briefs have come in. (The state's brief is due in a month and our reply brief soon after that, so we should find out whether cert is granted by sometime this summer.) The first brief I'll mention is the First Amendment Scholars' brief, filed by Chris Paolella of Reich & Paolella LLP.

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

Interests of Amici Curiae

Amici are 22 legal scholars who research, teach, and publish scholarship on the First Amendment's free speech clause. Their names, their institutional affiliations, and examples of their relevant scholarship are set forth in the Appendix to this brief. Amici have no personal interest in this case; they submit this brief to urge the Court to grant certiorari to resolve a long-standing inconsistency in its First Amendment jurisprudence.

Summary of Argument

The threshold question in deciding whether a government regulation offends the First Amendment's guarantee of freedom of speech is whether the regulation discriminates based on the content of the speech. Laws "that target speech based on its communicative content . . . are presumptively unconstitutional." Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). They are subject to strict scrutiny, which requires the government to show that the restriction "is 'narrowly drawn' to further a 'compelling interest' and that the restriction amounts to the 'least restrictive means' available to further that interest." Ashcroft v. ACLU, 542 U.S. 656, 677 (2004) (citations omitted).

"On the other hand, so-called 'content-neutral' time, place, and manner regulations" aimed at combating "the undesirable secondary effects" of expression are subject to the less exacting standard of intermediate scrutiny. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 49 (1986). To survive intermediate scrutiny, a restriction on speech or expression need only be "narrowly tailored to serve the government's legitimate, content-neutral interests"; it need not "be the least restrictive or least intrusive means of doing so." Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).

In most cases, the decision whether to apply strict or intermediate scrutiny will determine whether the regulation survives. But the line dividing content-based laws and content-neutral regulations has never been entirely clear. In recent years, that line has become even blurrier.

In Reed, this Court declared that content-based regulations are subject to strict scrutiny "regardless of the government's benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech." 576 U.S. at 165. This holding is in obvious tension with City of Renton's view that, in at least some cases, a content-neutral "secondary effects" justification is enough to escape strict scrutiny—even where a law singles out a particular type of expressive content for regulation. Some lower courts have read Reed as undermining City of Renton and have revisited their prior jurisprudence in this area.

But other courts continue to apply City of Renton's "secondary effects" rationale to uphold laws that, on their face, discriminate between types of speech. And they apply them in contexts beyond the "time, place, and manner" restrictions at issue in City of Renton. Here, the Georgia Supreme Court upheld a tax levied on certain businesses featuring nude dancing—a type of expressive content—because the ordinance was "'aimed not at the content' of adult entertainment, but 'rather at the secondary effects'" of the expression. Pet. App. 15a (quoting City of Renton, 475 U.S. at 47–48) (emphasis in original). Other courts have applied this rationale to uphold laws regulating not just adult entertainment but also other types of speech, including public protest.

In short, there is incoherence at the center of this Court's First Amendment jurisprudence. Government regulators, speakers, and lower courts have no clear guidance as to whether a particular regulation will be viewed as content-based and subject to exacting strict scrutiny, or as a content-neutral regulation of secondary effects that need only satisfy intermediate scrutiny. This confusion has the potential both to confound good faith attempts at regulation and to chill speech that should be protected by the First Amendment.

Amici have differing perspectives on the continuing viability of City of Renton, as well as on the extent to which the government may constitutionally regulate specific types of speech based on that speech's secondary effects. They therefore take no position on whether City of Renton should be overruled, limited to a particular context, or read to cover facts like those here. Nor do they take any position on how the Court should rule on the challenged Georgia law.

But they agree that the Court must provide clear guidance as to the level of scrutiny that applies to a law which singles out a particular type of expressive content but provides a content-neutral justification. Until it resolves the tension between Reed and City of Renton, lower courts will continue to be afloat.

The Court should grant certiorari to resolve this fundamental inconsistency in its free speech jurisprudence.

Argument

The Court Should Grant Certiorari to Resolve the Inconsistency between Reed and City of Renton and Its Progeny.

A. There is substantial tension between this Court's rulings in City of Renton and its progeny, on the one hand, and Reed, on the other.

This Court has long held that regulations that discriminate based on the content of speech are subject to the most exacting scrutiny. See, e.g., Police Dep't of City of Chicago v. Mosley, 408 U.S. 92 (1972) (applying strict scrutiny to strike down ordinance generally prohibiting picketing near schools but permitting labor-related picketing: "Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject").

In City of Renton, the Court recognized an exception to this rule. Applying intermediate scrutiny, it upheld a zoning ordinance that discriminated against adult movie theaters—on its face, a content-based distinction. While recognizing that "regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment," the Court concluded that "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." 475 U.S. at 46–47 (emphasis in original).

City of Renton generated a line of caselaw standing for the proposition that "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." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citing City of Renton, 475 U.S. at 46–47) (emphasis added). These cases extend beyond the adult entertainment context and involve regulations that, on their face, apply to specific types of expressive content.

Most notably, in Hill v. Colorado, the Court upheld a criminal statute prohibiting knowingly approaching a person near a healthcare facility "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling." 530 U.S. 703, 707 (2000). Applying the framework elaborated in Ward, the Court concluded that the law was content-neutral because, among other factors, "it was not adopted 'because of disagreement with the message it conveys.'" Id. at 719 (quoting Ward, 491 U.S. at 791). Rather, the Court emphasized, the statute served the "prophylactic" purpose of "protect[ing] those who wish to enter health care facilities, many of whom may be under special physical or emotional stress, from close physical approaches by demonstrators." Id. at 729.

City of Renton and its progeny embody the principle that, even when a law facially singles out a specific type of expressive content, it can nevertheless escape strict scrutiny if it is justified by a content-neutral purpose, like combating the secondary effects of the speech. In such cases, intermediate scrutiny applies.

This line of cases is in direct tension with the Court's decision in Reed. There, the Court struck down a municipal sign code that classified different types of signs into categories based on their content, and subjected each category to different regulations. While the town offered content-neutral justifications for treating different categories of signs differently, the Court concluded that the law was content-based and applied strict scrutiny:

A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of "animus toward the ideas contained" in the regulated speech. . . . In other words, an innocuous justification cannot transform a facially contentbased law into one that is content neutral.

Reed, 576 U.S. at 165 (citations omitted). And it emphasized that a court must "consider[] whether a law is content neutral on its face before turning to the law's justification or purpose." Id. at 166 (emphasis in original). If it is not, then strict scrutiny applies.

Under City of Renton and its progeny, a law that singles out a specific type of expressive content but relies on a content-neutral justification is subject to intermediate scrutiny. Under Reed, a facially content-based law is always subject to strict scrutiny, regardless of its purpose or justification. While amici take no position on which rule should prevail, it is clear that these principles are not compatible.

B. Lower courts have struggled to reconcile these inconsistent lines of jurisprudence.

Reed did not purport to overrule City of Renton or any of its progeny. But members of this Court have noted the significant tension between the two lines of cases. So have First Amendment scholars. So have some lower courts.

And lower courts struggle to apply these incompatible, but equally binding, precedents in a consistent way. In the wake of Reed, some courts reject City of Renton-type "content-neutral justification" arguments and apply strict scrutiny to regulations that discriminate based on content. See, e.g., Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir. 2015) (striking down law prohibiting politically-related robocalls as impermissibly content-based: "Reed has made clear that . . . the government's justification or purpose in enacting the law is irrelevant"); Free Speech Coal., Inc. v. Skrmetti, — F. Supp. 3d —, 2024 WL 5248104, at *14 (W.D. Tenn. 2024) (striking down law requiring websites containing content deemed harmful to minors to verify the age of users: "the secondary effects doctrine only applies to laws that are content-neutral") (emphasis in original); Champion v. Commonwealth, 520 S.W.3d 331, 337 (Ky. 2017) (striking down anti-panhandling ordinance as impermissibly content-based: "The government's purpose is only relevant . . . after concluding that the regulation is facially content-neutral.").

Other courts, including the court below, continue to rely on City of Renton and its progeny and apply intermediate scrutiny to content-based regulations that are justified by a content-neutral rationale. See, e.g., Pet. App. 15a; Siders v. City of Brandon, 123 F.4th 293, 304 (5th Cir. 2024) (upholding ordinance restricting protests and demonstrations near public amphitheater: "the Supreme Court has not overruled Hill" and "the similarity between this ordinance and the statute in Hill is significant"); Ass'n of Club Executives of Dallas, Inc. v. City of Dallas, 83 F.4th 958, 964 (5th Cir. 2023) (upholding ordinance restricting hours of sexually-oriented businesses based on secondary effects: "Plaintiffs argue that Renton is no longer good law. . . . We reject [that] argument[].").

While some of those courts note the tension with Reed, they have concluded, as the Fifth Circuit put it, that "whether to overrule or modify Renton is the High Court's business, not ours." Ass'n of Club Executives of Dallas, 83 F.4th at 965; see also Price, 915 F.3d at 1111 ("The Court's intervening decisions have eroded Hill's foundation, but the case still binds us; only the Supreme Court can say otherwise.").

This Court's intervention is required to resolve the tension between these incompatible strains of its First Amendment jurisprudence. No purpose is served by forcing lower courts—and speakers and governments—to guess whether City of Renton remains controlling law or whether Reed now provides the operative test. Whichever way the Court resolves this issue, it must be resolved.

C. This case provides an attractive vehicle to resolve the confusion.

This case is a good vehicle to clarify the Court's jurisprudence. The challenged law, which has been definitively interpreted by Georgia's highest court, clearly imposes burdens based on the content of expression: It taxes "adult entertainment establishments" which offer "entertainment" consisting of "nude or substantially nude persons . . . engaged in movements of a sexual nature." Ga. Code Ann. § 15-21-201(1)(A). The Georgia Supreme Court expressly relied on City of Renton's secondary effects framework to apply intermediate scrutiny and uphold the assessment. Pet. App. 15a–18a. Therefore, the continuing vitality and scope of City of Renton and its progeny in cases involving facially content-based regulation would be directly before this Court on certiorari. And there are no vehicle problems that would weigh against a grant. Cf. Bruni v. City of Pittsburgh, 141 S. Ct. 578 (2021) (Thomas, J., concurring in denial of cert.) ("I agree with the Court's decision not to take up this case because it involves unclear, preliminary questions about the proper interpretation of state law. But the Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents.").

Conclusion

For the foregoing reasons, the petition for a writ of certiorari should be granted.

List of Amici Curiae

John Acevedo is Associate Dean of Students and Academic Programs and Visiting Associate Professor of Practice at Emory University School of Law. He is the author of Law's Gaze, 25 J. Gender Race & Just. 45 (2022), and The Model Speaks?: Obscenity Laws in the United States, in Gender and Justice: Theoretical Practices of Intersectional Identity 257 (Elaine Wood ed., 2020).

Thomas C. Arthur is Emory School of Law Distinguished Professor at Emory University School of Law. He is the author of The Problems with Pornography Regulation: Lessons from History, 68 Emory L.J. 867 (2019).

Loftus Becker is Professor of Law Emeritus at University of Connecticut School of Law. He is the author of Children's Rights vs. Adult Free Speech: Can They Be Reconciled?, 29 Conn. L. Rev. 893 (1997), and The Liability of Computer Bulletin Board Operators for Defamation Posted by Others, 22 Conn. L. Rev. 203 (1989).

Ashutosh A. Bhagwat is Distinguished Professor of Law and Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at University of California Davis School of Law. He is the author of In Defense of Content Regulation, 102 Iowa L. Rev. 1427 (2017), and Reed v. Town of Gilbert: Signs of (Dis)Content?, 9 N.Y.U. J. L. & Liberty 137 (2015).

Michael J. Broyde is Professor of Law at Emory University School of Law. He is the author (with Shlomo C. Pill) of The Concept of Human Rights in Judaism, in The Concept of Human Rights in Judaism, Christianity and Islam 19 (Catharina Rachik & Georges Tamer eds. 2023), and the editor (with John Witte, Jr.) of Human Rights in Judaism: Cultural, Religious, and Political Perspectives (1998).

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at University of California Berkeley Law School. He is the author of Constitutional Law (7th ed. 2024) and Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court's Application, 74 S. Cal. L. Rev. 49 (2000).

Michael R. Dimino is Professor of Law at Widener University Commonwealth Law School. He is the author of It's My Party and I'll Do What I Want To: Political Parties, Unconstitutional Conditions, and the Freedom of Association, 12 First Amend. L. Rev. 65 (2014), and Political Speech, in Oxford Handbook of American Election Law 331 (Eugene D. Mazo ed. 2025).

Paul Finkelman is Visiting Professor of Law at University of Toledo College of Law. He is also the President William McKinley Distinguished Professor of Law and Public Policy Emeritus at Albany Law School. He is the author of Picture Perfect: The First Amendment Trumps Congress in Ashcroft v. Free Speech Coalition, 38 Tulsa L. Rev. 243 (2002), and Speech, Press and Democracy, 10 Wm. & Mary Bill Rts. J. 813 (2002).

Richard W. Garnett is Paul J. Schierl Professor of Law and Director of the Notre Dame Program on Church, State & Society at Notre Dame Law School. He is the author of Can There Really Be "Free Speech" in Public Schools?, 12 Lewis & Clark L. Rev. 45 (2008), and the editor (with Andrew Koppelman) of First Amendment Stories (2011).

Wes E. Henricksen is Associate Professor of Law at Barry University School of Law. He is the author of Disinformation and the First Amendment, 96 St. John's L. Rev. 543 (2021), and (with Broderick Betz) The Stolen Election Lie and the Freedom of Speech, 127 Penn. St. L. Rev. Penn Statim 111 (2023).

David L. Hudson Jr. is Associate Professor of Law at Belmont University College of Law. He is the author of The Content-Discrimination Principle and the Impact of Reed v. Town of Gilbert, 70 Case W. Res. L. Rev. 259 (2019), and The Secondary-Effects Doctrine: Stripping Away First Amendment Freedoms, 23 Stanford L. & Pol'y Rev. 19 (2012).

Leslie Gielow Jacobs is Anthony Kennedy Professor of Law at University of the Pacific McGeorge School of Law. She is the author of Making Sense of Secondary Effects Analysis after Reed v. Town of Gilbert, 57 Santa Clara L. Rev. 385 (2017), and Clarifying the ContentBased/Content Neutral and Content/Viewpoint Determinations, 34 McGeorge L. Rev. 595 (2003).

Allen R. Kamp is Professor Emeritus of Law at University of Illinois Chicago Law School. He is the author of Constitutional Interpretation and Technological Change, 49 New Eng. L. Rev. 201 (2015), and Jurisprudence: A Beginner's Simple and Practical Guide to Advanced and Complex Legal Theory, 2 The Crit: Critical Stud. J. 62, 66 (2009).

Genevieve Lakier is Professor of Law and Herbert & Marjorie Fried Teaching Scholar at University of Chicago Law School. She is the author of Reed v. Town of Gilbert, Arizona, and the Rise of the Anti-Classificatory First Amendment, 2016 Sup. Ct. Rev. 233 (2017), and A CounterHistory of First Amendment Neutrality, 131 Yale L.J. Forum 873 (2022).

Paul E. McGreal is James L. Koley, JD'54, Professor of Constitutional Law at Creighton University School of Law. He is the author (with Charles W. Rhodes) of Skills & Values: The First Amendment (2022) and (with James J. Alifini) First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government's Interest, 157 U. Pa. L. Rev. PENNumbra 76 (2008).

Clare R. Norins is Clinical Associate Professor of Law at the University of Georgia School of Law and director of its First Amendment Clinic, which litigates challenges to content-based municipal policies. She is the author of Stitch Incoming: Lindke v. Freed's Impact on Social Media Blocking Litigation, 82 Wash. & Lee L. Rev. Online 172 (2024), and Campbell v. Reisch: Dangers of the Campaign Loophole in Social Media Blocking Litigation, 25 U. Pa. J. Const. L. 146 (2023).

Michael J. Perry is Robert W. Woodruff Professor of Law Emeritus at Emory University School of Law. He is the author of Constitutional Rights as Human Rights: Freedom of Speech, Equal Protection, and the Right of Privacy, 57 Wake Forest L. Rev. 931 (2022).

Stacey L. Sobel is Professor of Law and Associate Dean for Research & Faculty Development at Western State College of Law at Westcliff University. She is the author of 303 Creative v. Elenis, in SCOTUS 2023: Major Decisions and Developments of the U.S. Supreme Court 63 (Morgan Marietta & Howard Schwerber eds. 2024).

Nadine Strossen is the John Marshall Harlan II Professor of Law Emerita at New York Law School. She is the author of Free Speech: What Everyone Needs to Know® (2023) and HATE: Why We Should Resist It with Free Speech, Not Censorship (2018).

Tyler Valeska is Assistant Professor of Law at Loyola University Chicago School of Law. He is the author of Speech Balkanization, 65 B.C. L. Rev. 903 (2024), and First Amendment Limitations on Law Enforcement Livestreaming Protests, 121 Colum. L. Rev. Forum 8 (2021).

Eugene Volokh is Thomas M. Siebel Senior Fellow at the Hoover Institution and Gary T. Schwartz Distinguished Professor of Law Emeritus at UCLA School of Law. He is the author of The First Amendment and Related Statutes: Law, Cases, Problems and Policy Arguments (8th ed. 2024) and Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev. 1277 (2005).

Timothy Zick is Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship at William & Mary Law School. He is the author of The First Amendment: Cases and Theory (4th ed. 2022) and Managed Dissent: The Law of Public Protest (2023).

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[Eugene Volokh] Free Speech Unmuted: Harvard vs. Trump: Free Speech and Government Grants

The Trump Administration has announced that it was freezing grants to Harvard, and demanding that Harvard change many of its policies and practices in order to get back in the Administration's good graces. President Trump has also suggested that Harvard might lose its tax-exempt status for "pushing political, ideological, and terrorist inspired/supporting 'Sickness.'" Would such a cutoff of funding or tax exemption benefits violate the First Amendment? Jane and I discuss.

See also our past episodes:

Free Speech Unmuted: Trump's War on Big Law Can Non-Citizens Be Deported For Their Speech? Freedom of the Press, with Floyd Abrams Free Speech, Private Power, and Private Employees Court Upholds TikTok Divestiture Law Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama Protests, Public Pressure Campaigns, Tort Law, and the First Amendment Misinformation: Past, Present, and Future I Know It When I See It: Free Speech and Obscenity Laws Speech and Violence Emergency Podcast: The Supreme Court's Social Media Cases Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky Free Speech On Campus AI and Free Speech Free Speech, Government Persuasion, and Government Coercion Deplatformed: The Supreme Court Hears Social Media Oral Arguments Book Bans – or Are They?

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[Josh Blackman] Today in Supreme Court History: April 23, 1985

4/23/1985: Cleburne v. Cleburne Living Center, Inc. argued.

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[Josh Blackman] A Tale Of Two Shadow Dockets

[The Supreme Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but says nothing about Ohio initiative process being declared unconstitutional.]

In the span of seventy-two hours, the Supreme Court decided two cases on the emergency docket.

First, by a 7-2 vote, in A.A.R.P. v. Trump, the Court issued an injunction against the "government" to block the removal of a "putative" class of aliens. It did all this even though neither the District Court nor the Fifth Circuit had ruled yet. In fact, had the Supreme Court waited a few more minutes, it would have had an actual decision to review. Now, three days later, the Supreme Court still has not vacated its illegal injunction. I doubt it has any reason to move with alacrity here, since the Supreme Court circumvented the entire appellate process. The Supreme Court begrudgingly took the case away from Judge Boasberg (who is somehow still holding hearings) but the Chief has no interest in letting Texas judges actually decide it.

Second, the Court denied a stay in Yost v. Brown by a 6-3 vote. Here, a federal district court found that Ohio's constitutional amendment process was unconstitutional. A divided panel lifted the stay over Judge Bush's dissent. Justice Kavanaugh entered an administrative stay, but the full Court lifted the stay. Justices Kavanaugh, Thomas, and Alito dissented. There you have it, a federal court found unconstitutional the very process by which the people of Ohio can govern themselves. As a result, the Ohio Attorney General was forced to certify the amendment for the ballot. The question: to end qualified immunity for police officers!

Are these two cases related? Not really. But I do think they speak to the current Court's priorities. The Justices have decided they will move heaven and earth to make sure that alleged gang members, who are almost certainly subject to removal, cannot be removed. Meanwhile, they shrug when lower courts interfere with the democratic processes of a state. Perhaps the removal of the aliens creates irreparable harm. Well, same for amending the state Constitution. It is extremely difficult to unamend a Constitution; and that change affects millions of Ohioans, not just a handful of aliens who are subject to removal. With all regard to Judge Sutton, there will now be one even-more-imperfect solution, through federal courts interference.

It is often said that the Supreme Court follows the headlines. To be clear, the Supreme Court follows the headlines of the mainstream media. There is a never-ending torrent of hottakes about a constitutional crisis. But most Americans will scratch their heads at this issue and wonder why the Supreme Court is giving so much attention to these alleged gang members. During the debate, Donald Trump said that Haitian immigrants in Ohio were eating dogs, and he still won the state by a large margin. Meanwhile, countless other cases whither on the shadow and merits docket, and the people of Ohio have no recourse. The Court does not have its finger on America's pulse--not even close.

As I wrote in the wee hours of Sunday, "I'm glad that the Chief has his priorities straight."

Last year, a bad guy name Zackey Rahimi got hosed at the Supreme Court and no one cared. Remember this colloquy?

John G. Roberts, Jr.: Well, to the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?

J. Matthew Wright: Your Honor, I would want to know what "dangerous person" means. At the moment --

John G. Roberts, Jr. Well, it means someone who's shooting, you know, at people. That's a good start. (Laughter.)

Rahimi didn't get any due process, and the Court was utterly uninterested in the issue.

Anyway, I'm pretty sure you can find some "dangerous" people in the Bluebonnet detention facility.

This year, the Chief Justice ridiculed as criminal those American citizen hobbyists who make their own guns.

John G. Roberts, Jr. Just what would -- what is the purpose of selling a receiver without the holes drilled in it? Well, I mean, drilling a hole or two, I would think, doesn't give the same sort of reward that you get from working on your car on the weekends.

In A.A.R.P., there are actual criminals who are in this country illegally, with suspected gang affiliations. All of the sudden, John Roberts turns into the second coming of Earl Warren. Then again, Earl Warren risked a constitutional crisis over integration of public schools. That seems like a weighty goal. John Roberts will wage a constitutional crisis over deporting illegal aliens with alleged gang membership? Will anyone in ten years even understand what this case was about?

The decision to intervene on the shadow docket, no matter what Justice Barrett says, is a reflection of how important a Justice thinks a case is. I don't want to hear a word about "cert-worthiness" ever again. This is an individualized judgment, and the four stay factors are just window dressing. The current members of the Court have now signaled what matters to them.

 

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[Josh Blackman] "Personal" Liberty Due Process Cases at the Supreme Court Between Carolene Products and Griswold

[It is clear the Court decided "economic" liberty cases in this period, but what about "personal" liberty due process cases, apart from the First Amendment?]

United States v. Carolene Products (1938) established a dichotomy between enumerated and unenumerated rights. Under Footnote Four, laws that infringed provisions of the Bill of Rights would be scrutinized closely. By contrast, all other sorts of rights, including liberties protected by the Due Process Clause, would be afforded only rational basis scrutiny. Williamson v. Lee Optical (1955) made that rational basis scrutiny even more deferential. That test became the New Deal settlement on the Due Process Clause. Until it wasn't.

Griswold v. Connecticut (1965) found that a right of privacy could be found in the "emanations" of the Bill of Rights. At least on paper, the Court was trying to stay within the Footnote Four framework, though I'm not sure anyone really believed it. But Griswold made a more important move. To respond to the charge of Lochnerism, Justice Douglas sought to distinguish the Court's past cases. West Coast Hotel was retconned as a repudiation of substantive due process only for economic rights. By contrast, substantive due process was still permissible personal rights cases. Decisions like  Meyers v. Nebraska or Pierce v. Society of Sisters were reaffirmed acceptable as First Amendment decisions, even though both predate the modern incorporation doctrine.

Here is how Justice Douglas attempts to reconcile the doctrine:

Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decline that invitation, as we did in West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U. S. 183, 344 U. S. 195) -- indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 249-250, 354 U. S. 261-263; Barenblatt v. United States, 360 U. S. 109, 360 U. S. 112; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 369. Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

Here is my question. Between Carolene Products (1938) and Griswold (1965), did the Supreme Court decide any "personal" liberty Due Process Cases? I am not including First Amendment cases which, through incorporation, are Fourteenth Amendent cases. I am asking about actual unenumerated claims to "personal" liberty under the Due Process Clause. I realize that the economic/personal line is bit anachronistic, as Carolene Products did not countenance this distinction.

The only case I can think of is Skinner v. Oklahoma ex rel. Wlliamson (1942). This was an unusual penal law that sterilized "habitual criminals." The majority opinion, per Justice Douglas, found the statute violated the Equal Protection Clause. But the analysis seemed to conflate Equal Protection with Due Process:

But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of "equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U. S. 337. Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks.

In Skinner, Justice Stone (the author of Footnote Four) would have applied the Due Process Clause:

And so I think the real question we have to consider is not one of equal protection, but whether the wholesale condemnation of a class to such an invasion of personal liberty, without opportunity to any individual to show that his is not the type of case which would justify resort to it, satisfies the demands of due process. There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned (see United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 152, n. 4) and where the presumption is resorted to only to dispense with a procedure which the ordinary dictates of prudence would seem to demand for the protection of the individual from arbitrary action.

Are there other such cases? Please email me if you can think of other cases.

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[Eugene Volokh] The AARP Is Not in Danger of Being Deported as a Tren de Aragua Member

From yesterday's opinion in the case formerly known as A.A.R.P. v. Trump, but now W.M.M. v. Trump:

The AARP, a nonprofit entirely unrelated to this case, seek leave to intervene to request that the petitioner A.A.R.P.'s pseudonym be changed to A.R.P. and that the case caption be styled as W.M.M., et al. v. Donald J. Trump, et. al. The petitioners and the respondents do not oppose the AARP's motion….

The Court construes the motion to intervene as an agreement by the existing parties to amend the styling of the case caption. Accordingly, the Court amends its prior order granting the motion to proceed under pseudonyms and orders that the petitioners are permitted to proceed under the pseudonyms A.R.P., W.M.M., and F.G.M. [not to be confused with FGM -EV]. In addition, the Court orders that this case will hereafter proceed under the case caption W.M.M., et al. v. Donald J. Trump, et. al.

Well, that clears that up! The heart of the argument in the motion itself was:

Unsurprisingly, this litigation has already received attention from the press and social media. It will surely continue to do so. AARP is concerned that the nomenclature adopted by the caption of this case will create substantial confusion among journalists and the public. Indeed, in the 72 hours since the litigation was filed, it has already resulted in numerous misplaced inquiries to AARP. Both the ACLU and AARP are prominent advocacy organizations on federal policies, albeit in very different domains.

For more on the question If Pseudonyms, Then What Kind?, see this article; when I was writing it, I wasn't thinking about the litigant's initials vs. organizational name problem, but here's a related problem from a 1996 Ninth Circuit case:

The plaintiffs in this case previously were denominated "James Rowe, Jane Rowe and John Doe." One of the many persons genuinely named "James Rowe" wrote to the court while the appeal was pending, and said that his reputation was harmed by a newspaper story about the appeal, because careless readers might think erroneously that he is a convicted sex offender…. It is preferable for lawyers and courts to avoid harm to the reputations of real persons by using … traditional references for pseudonyms.

Thanks to Paul Alan Levy for the pointer.

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