Eugene Volokh's Blog, page 118

[Eugene Volokh] "The Deportation of Dissent"

An excellent April 14 article by Jacob Mchangama and Hirad Marami (The Bedrock Principle); here's an excerpt:

The Department of Homeland Security recently announced that U.S. Citizenship and Immigration Services would begin screening the social media posts of "aliens applying for lawful permanent resident status," as well as foreign students and others affiliated with educational institutions deemed linked to antisemitic activity. In particular, USCIS will deny benefits to applicants whose posts indicate support for "antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity."

This move follows several high-profile cases where foreign students — including visa and Green Card holders — were detained, seemingly for their speech or beliefs. This includes a Turkish student at Tufts University, who was seemingly targeted for co-authoring a student newspaper op-ed calling for a boycott of Israel, despite no evidence that she supported terrorism or expressed antisemitism.

The Trump administration is invoking a clause of the Immigration and Nationality Act of 1952 that allows the Secretary of State broad discretion to deport anyone he believes "would have potentially serious adverse foreign policy consequences for the United States." As such, a recently released memo detailing the government's case against the most prominent of the activists, Mahmoud Khalil, refrains from charging him with any crime. On Friday [April 11], a Louisiana immigration judge upheld the Government's decision to deport Khalil. Constitutional scholars debate whether and to what extent the First Amendment protects noncitizens in such cases, and the Supreme Court may eventually weigh in.

But the question is not only constitutional — it is foundational. Is deporting foreigners for expressing disfavored views compatible with a robust commitment to a culture of free speech?

As it turns out, history has a lot to tell us about states that exclude foreigners with controversial opinions and those that welcome non-native dissenters….

The post "The Deportation of Dissent" appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: April 22, 1992

4/22/1992: Planned Parenthood v. Casey argued.

The post Today in Supreme Court History: April 22, 1992 appeared first on Reason.com.

[Josh Blackman] The ACLU'S Ex Parte Voicemail To Seek An Ex Parte Injunction

[Judge Hendrix took no action, but notified the government about the ACLU's action.]

So much happened on Good Friday with A.A.R.P. v. Trump that one item has slipped through the cracks. The ACLU made a request for an injunction after hours on the voicemail of Judge Hendrix's chambers. At the time, I found that request problematic, but had bigger fish to fry. Judge Hendrix has now issued an order addressing that voicemail.

First, it is prohibited to engage in ex parte communications with judges.

The Code of Conduct for United States Judges explains that judges should not permit or consider ex parte communications "or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers." Code of Conduct for United States Judges, Canon 3(A)(4). Even when circumstances may require such communications, the Canon limits such communications to situations where "the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication." Code of Conduct for United States Judges, Canon 3(A)(4)(b).

This rule is well known to anyone who has spent time in a district court. When I was clerking, lawyer would routinely call to ask about cases. As a clerk, the most I could discuss were procedural matters, like scheduling hearings or deadline extensions. If there was any sort of substantive question, my response was "put it in a motion." That way, all of the parties could see the request, have a chance to respond, and there would be a public record. Nine times out of ten, they never filed a motion, because they didn't want to actually make the request public. In rare cases, there was some urgent matter that needed the judge's attention. At that time, the courtroom deputy would try to get at least one lawyer from each part on the phone. When all of the lawyers were present, then and only then would the judge join the conference call. (These were the days before Zoom.) The court reporter was also present. That call was then treated as an official proceeding, that would be docketed. All of these rules are designed to eliminate the risk of ex parte communications about a case.

This sort of knowledge would largely be unknown to appellate lawyers or those who only clerked in an appellate court. It would never happen that any lawyers would ever talk to a circuit judge or their clerks. On rare occasions while clerking at the Sixth Circuit, I would see counsel at oral argument that I knew. To avoid any appearance of impropriety, I would decline to say anything more than "hello."

Second, Judge Hendrix explains that the voicemail left by Lee Gelernt, counsel for the ACLU, would seem to be an impermissible ex parte communication:

The ex parte communication from attorney Lee Gelernt, counsel for the petitioners, does not meet this narrow exception. The voicemail addresses substantive matters, with Mr. Gelernt informing the Court that his "clients at the Bluebonnet Detention Center are being given orders to sign, Alien Enemy orders, and told they may be removed as soon as tonight or first thing in the morning" and that "[t]his is related to the Alien Enemies Act." See attachment. Mr. Gelernt further stated that "[i]t appears that [his clients] are being asked to—to be—to sign papers for their immediate removal." Id. Mr. Gelernt also asked "to talk to the Judge immediately" or "have the Judge issue an order to have [his clients] not removed." Id. These communications go directly to the substance of the petitioners' first motion for a temporary restraining order (Dkt. No. 2) and the subsequent motion for the same relief (Dkt. No. 30). In discussing substantive matters, seeking to talk to the Court immediately, and alternatively seeking to have the Judge issue such an order, the Court believes that Mr. Gelernt could have gained a substantive advantage in the proceedings by obtaining a temporary restraining order and a procedural and tactical advantage by making the request off the record, ex parte, and in the evening.

I think Judge Hendrix's analysis is quite right. The mere fact that the plaintiffs perceive an emergency does not excuse the plaintiffs from following the usual rules. Then again, the Supreme Court ignored a host of procedural rules in this case, so maybe the ACLU thought the call was cool. Process formalism lives in Texas, but not at the Supreme Court.

Third, Gelernt was on notice not to leave voicemails, as the court said all requests had to be made in writing:

Mr. Gelernt left this voicemail even though the Court earlier ordered the petitioners to explain why they should not be required to provide notice to the Court based on the exception laid out in Federal Rule of Civil Procedure 65(b) or otherwise provide notice to the government. Dkt. No. 8 at 1–2. The petitioners did not file a supplemental brief explaining why the Rule 65(b) exception applied and instead provided notice to Acting United States Attorney for the Northern District of Texas Chad Meacham. Dkt. No. 11. The Court thus notes that the petitioners had not established prior to the voicemail any reason to believe that ex parte communications of any kind were appropriate.

Fourth, Judge Hendrix did not issue an order to show cause--unlike Judge Boasberg--but simply provided notice to the government:

The Court therefore enters this Order notifying the government of the contents of this voicemail. The Court did not return Mr. Gelernt's phone call and did not otherwise have any ex parte communications with the petitioners or their counsel. Attached to this Order is a transcript of the voicemail. See Attachment. Should any of the parties believe that a response is necessary, they may move for leave to respond.

Once again, the fine federal judges of Texas exhibit more restraint than the active federal judges in the Beltway. It's still not clear for me why Judge Boasberg would hold an emergency hearing, and interrogate DOJ lawyers, where he clearly lacks jurisdiction to proceed. And for those who may not know, Judge Hendrix was originally nominated by President Obama, though his nomination expired, and he was then appointed by Trump. Likewise, Judge Ramirez was appointed by President Biden. There you have it--Obama and Biden nominees who enforce the rules of procedure in a fair fashion. That is more than can be said for Chief Justice Roberts and the Trump appointees on the Supreme Court.

I still think there is more to this story regarding the timing. There was some forum shopping shenanigans by civil rights groups in the Alabama transgender case. It is not the case that only conservative lawyers bend the rules.

The post The ACLU'S Ex Parte Voicemail To Seek An Ex Parte Injunction appeared first on Reason.com.

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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

[Eugene Volokh] No Temporary Restraining Order Against Accusations of Surrogacy Agency Error

["After receiving their surrogate baby, the couple purportedly performed an at-home DNA test 'which showed that [the would-be father] was in no way related to the baby.'"]

From last week's decision by Judge Beth Bloom (S.D. Fla.) in Miracle Surrogacy, LLC v. Monello-Fuentes:

Defendants … contacted Miracle Surrogacy and Miracle Surrogacy of Mexico to assist in facilitating a pregnancy through surrogacy. The couple intended to use the sperm of Monello, the egg of an anonymous egg donor, "and a surrogate to carry the embryo to term."

Although Plaintiffs facilitate the genetic collection, conception, and surrogacy, Plaintiffs contend that they do not provide medical services and that they do not "guarantee satisfaction with the medical services, or any medical outcomes related to the surrogacy journey." However, after Fuentes and Monello [the would-be mother and father] completed the surrogacy process, they were dissatisfied with their outcome. After receiving their surrogate baby, the couple purportedly performed an at-home DNA test "which showed that Monello was in no way related to the baby." Upon making this discovery, Plaintiffs claim "Fuentes began manufacturing libelous statements. Specifically, that the baby conceived through surrogacy is in no way biologically related to Fuentes nor Monello."

According to Plaintiffs, Fuentes and Monello have made many libelous statements across a number of social media platforms …. On Facebook, Fuentes has created a group named "Justice for Baby Emma: Hold Miracle Surrogacy Accountable …. Plaintiffs claim the description of the Facebook Group contains libel as it states that the purpose of the group is to "seek justice against Miracle Surrogacy as a result of being 'misled, denied access to basic medical records, and ultimately [being] handed a child who is not biologically ours.'"

Fuentes has made similar allegedly slanderous statements in a series of YouTube videos, "where Fuentes has over eighteen thousand (18,000) subscribers." Fuentes' defamatory statements include but, are not limited to, that "Miracle Surrogacy, Miracle Surrogacy of Mexico, and Yaden [Miracle Surrogacy's primary owner and operator] took part in 'gross negligence and potential medical malpractice,'" that they "are 'responsible for the creation of hundreds of babies without verifying they are biologically related to the intended parents who hire them,' that Fuentes is 'aware of another case where another couple's embryo was implanted incorrectly,' that they are 'human trafficking' and that Fuentes was 'pressured to continue a process built on deception.'" Additionally, Fuentes has recently shared a story "which insinuates that a former employee of Miracle Surrogacy of Mexico informed Fuentes that they have been asked to 'alter medical records and when they refused, they believe the records were still changed."'

Beginning on April 8, 2025, "Monello joined Fuentes in disseminating slanderous statements" about the Plaintiffs. Monello stated in the Facebook Group that Miracle Surrogacy engages in "child laundering." The couple later accused Plaintiffs' of running a "scam."

Plaintiffs maintain that the couple's statements "are entirely false" as Plaintiffs "do not engage in human trafficking, gross negligence, medical malpractice, [or] assist[ ] in the creation of incorrect genetics, nor do[ ] [they] act in any manner that would justify such statements." However, despite Fuentes and Monello's statements being completely false, Plaintiffs claim the couple's allegations have disrupted their business. Plaintiffs assert that at least "two potential clients who were in the process of beginning their journey with Miracle Surrogacy and Miracle Surrogacy of Mexico" decided they would no longer do business with Plaintiffs in light of the statements made by the couple….

Plaintiffs sued, and on the same day also sought a Temporary Restraining Order (see here for their argument), but the court denied the TRO; an excerpt:

"[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." "Like statutes that regulate speech, court-ordered injunctions that regulate speech are also subject to First Amendment scrutiny" and therefore may constitute a prior restraint….. "[A] temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns." … "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints."' …

"Florida's courts have long held that temporary injunctive relief is not available to prohibit the making of defamatory or libelous statements." Plaintiffs are in no uncertain terms requesting the Court issue an injunction restricting Defendants' speech. Plaintiffs offer no reason why the proposed injunction does not constitute a prior restraint or censorship on speech, nor do they offer any justification, let alone a compelling one, that would rebut the presumptive unconstitutionality of the injunction….

While courts holding that temporary restraining orders restricting speech are presumptively invalid have dealt with the issue in the context of speech that has yet to be published, Florida courts have held that the prohibition also applies to speech after it is published.

However, even assuming the First Amendment did not prevent a temporary restraining order on already published statements, Plaintiffs fail to offer evidence beyond conclusory allegations that the statements made by Defendants are false. Therefore, Plaintiffs' Motion also fails as they have not shown that they are likely to prevail on the merits.

Note that courts in many state appellate courts and federal circuits have allowed permanent injunctions barring the repetition of statements that had been adjudicated to be libelous (at trial or via a default judgment); but courts generally reject as prior restraints injunctions entered prior to such a final determination of falsehood. See my Anti-Libel Injunctions article for much more, including citations to cases that depart from the norm and do allow (erroneously, I think) preliminary injunctions or TROs in such cases.

The post No Temporary Restraining Order Against Accusations of Surrogacy Agency Error appeared first on Reason.com.

[David Post] Why is Ed Martin So Interested in Medical Journal Publication Practices?

[Just what the doctor ordered - more lawyers and prosecutors meddling with scientific journals! ]

Ed Martin, the Interim US Attorney for the District of Columbia, has sent out a letter to a rather obscure medical journal, "Chest" - a journal published in Illinois by the American College of Chest Physicians and focused on pulmonary and sleep-related medical research[*].  The letter, dated 4/14/2025, was first reported on the website "Medpage Today," and was, apparently, one of at least three that Martin sent out to different medical journals.

The letter raises a number of interesting questions.

 Why in God's name is the US Attorney for DC interested in the publication practices of an obscure specialty medical journal published in Illinois?  Is there not enough crime in DC to keep him otherwise fully occupied? Why is the text of the letter such a mishmash of incomprehensible nonsense?

What does it mean - in English - to say that publications like CHEST Journal "are conceding that they … have a position for which they are advocating either due to advertisement (under postal code) or sponsorship (under relevant fraud regulations)." [Emphasis added]

Why does it say "I look forward to I look forward to and appreciate your cooperation with my letter of inquiry after request"?

Why does Martin begin by declaring that he "receive[s] frequent requests for information and clarification" and that he "take[s] these requests seriously and act[s] on them with letters like this one you are receiving"?  What is he talking about?  Is he implying that he has received a "request for information and clarification" about CHEST's publication practices, and that he "takes the request seriously"?  What does it mean to take a request for information and clarification about medical journal publication practices "seriously"?

I ask these questions not merely to embarrass Mr. Martin and to chide him for - rather unprofessionally - having sent out a letter over his signature that appears to have been neither edited nor proofread. Rather, it makes me wonder: perhaps this letter - like the now-infamous letter to Harvard, in which the Administration presented its astonishing new demands and which led the university to announce that it would not comply with them - was sent out by mistake?    

3. Here's an easier one:  Does the Editor-in-Chief of "CHEST" have any obligation to respond to Mr. Martin's questions?  The answer, of course, is "No, he does not," and if I were CHEST's lawyer, I'd recommend replying to Martin's request with a polite but firm "No." No obligation is (or can be) imposed on the Editor by a letter -- even a letter from a US Attorney - simply requesting information about how he runs his operations. Mr. Martin has plenty of ways to impose such an obligation on the Editor and to get that information via subpoena or warrant if, in fact, he requires it for an investigation his office is conducting or some case his office is prosecuting.

4.  Perhaps most importantly: What is the ultimate purpose - the grand strategy - behind the Administration's war on science and scientific research?  I don't get it. As readers are well aware, there are plenty of Administration policy objectives that I think are unwise, short-sighted, ineffective, or worse.  But in most cases I understand what they're trying to accomplish, and why some people believe they're worth pursuing. Getting rid of the Department of Education, eliminating US foreign aid, opening up more coal-fired electrical plants, loosening/eliminating environmental regulations - they're all terrible ideas (in my opinion), but I get where they're coming from and I understand that there is a viable and coherent point of view behind them, misguided though it may be (in my opinion).

But the war on science makes no sense to me whatsoever; perhaps there are some readers who can enlighten me on that. In what alternate world are we made better off by weakening or crippling our major scientific institutions?  In what way is a United States without NIH grants a better country than one with NIH grants? Same for NSF grants, NOAA, the CDC, Office of Climate Research, the USGS, etc. Why the hostility? Why would anybody want to take them all down?

*The most recent issue, for example, contained articles on "Beta-Blockers in Pulmonary Arterial Hypertension," "The Role of Bronchial Biopsy in the Prediction of Response to Biologic Therapy in Severe Uncontrolled Asthma," "Risk Factors and Clinical Impact of Severe Pneumothorax After Endoscopic Lung Volume Reduction With Endobronchial Valves," and the like.

 

The post Why is Ed Martin So Interested in Medical Journal Publication Practices? appeared first on Reason.com.

[Josh Blackman] The Timing of the 5th Circuit's Ruling in A.A.R.P. v. Trump

[The 5th Circuit and Supreme Court decided the case at *exactly* the same time.]

On Saturday evening, I wrote a series of posts about A.A.R.P. v. Trump. This case rocketed from the District Court to the Supreme Court in approximately twelve hours. Still, the timing of the case remained a bit fuzzy.

For example, the New York Times reported:

The Fifth Circuit issued its ruling in the small hours of Saturday morning, denying the A.C.L.U.'s request for emergency relief as premature.

Steve Vladeck offered this timing:

Then, a little before 1:00 a.m., the Supreme Court stepped in. As noted above, the cryptic order specifies that "The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court." And it notes that (1) the government can respond to the emergency application once the Fifth Circuit rules (which it did even later in the evening—denying emergency relief); and (2) Justices Thomas and Alito dissented, with an opinion from Alito apparently forthcoming.

A reporter told me the Supreme Court press corp was notified at 12:56 a.m.

So which came first? The Supreme Court's ruling or the Fifth Circuit's ruling?

Well, I wasn't certain, so I emailed the Fifth Circuit's clerk, Lyle Cayce, who provided this chronology:

The clerk's office received the Notice of Appeal at 3:02 p.m. and opened the appeal and assigned the matter to a randomly selected panel at 4:33.

The panel returned an order at approximately 11:56 p.m. and the clerk prepared the order using the Friday date. But docketing the order took a few minutes, and the docket entry was not completed until 1203 a.m. on Saturday.

After docketing the order, the emergency duty clerk emailed a copy to the Supreme Court.

I am grateful to Lyle for his many years of dedicated service to the Fifth Circuit.

To make things simple, I will convert all of Lyle's central time stamps to eastern time stamps.

The case arrived to the panel around 5:30 p.m. ET. At some point between 5:30 p.m. and 12:56 a.m. ET, the panel voted that there was no jurisdiction. Recall that there was both a per curiam order, and a concurrence by Judge Ramirez. This was all done without the benefit of any government briefing. We should also account for the fact that this was Good Friday, the Judges had probably already gone home from work, and their clerks were not on call. The panel returned an order at 12:56 a.m. ET. Seven minutes later, at 1:03 ET, the order was docketed, and sent to the Supreme Court.

If my math is right, at 12:56 a.m. ET, the Supreme Court announced its decision, and the Fifth Circuit panel released its decision. The orders were announced simultaneously. There is a fun question about what time actually counts? When the judges issue an opinion? When it is docketed? Released to the press? Who knows. As I said before, we are in Schrödinger's Box territory here.

This brings us back to a point from Justice Alito's dissent.

When this Court rushed to enter its order, the Court of Appeals was considering the issue of emergency relief, and we were informed that a decision would be forthcoming.

The Court knew a ruling was forthcoming. And if I had to guess, the 5th Circuit clerk would have told the SCOTUS clerk that the panel would find no jurisdiction. The Supreme Court likely had this information at hand. But rather than wait a few more minutes, the Justices issued the ruling they did.

Why? My theory: the Chief Justice thought it was better to suggest the Fifth Circuit was being dilatory, and not have to deal with any of the complex jurisdictional issues. There is also the question of whether everyone who voted with the majority knew how quickly the Fifth Circuit opinion was coming.

The Supreme Court cannot blame a lower court for not acting promptly enough, even as a lower court is acting diligently and ruling in time for appellate review.

I think there is a problem here that warrants further investigation by the press. There are hundreds of reporters who check out which flags are in front of Justice Alito's house. Maybe someone can check out the communications between the Fifth Circuit and the Supreme Court.

Ultimately, I don't think this affects the Marbury issue. Many people have cited a host of statutes that permit cert before judgment and the like. But in all those cases, there is still some lower court judgment to review. If any statute purports to grant what "appellate" jurisdiction that is in fact "original" jurisdiction, then we have a Marbury problem. Has there ever been a case where the district court did not issue any judgment, the circuit court (at the time the court voted) took no action, and the Supreme Court still exercised jurisdiction? I think the answer is no, but I welcome any suggestions.

The post The Timing of the 5th Circuit's Ruling in A.A.R.P. v. Trump appeared first on Reason.com.

[Eugene Volokh] Plaintiff Alleges Her Children Were "Trafficked by Members of the Democratic Party's Babylonian Talmud-Adherent Ashkenazi Jewish Cartel-Controlled Foster Care Sex Trade"

A short excerpt from Magistrate Judge Paul Evangelista's long Report and Recommendation Mar. 31 in Uzamere v. Gregg (N.D.N.Y.), which was adopted Thursday by Judge Anthony Brindisi:

To the extent it can be deciphered, it appears plaintiff's claims all stem from her belief of the existence an enormous conspiracy in which various judges, officials, attorneys, and people in positions of leadership, government or otherwise, seek to cause her great misfortune based on her belief that judges or people in government who have Ashkenazi Jewish heritage—or whom she believes to have such heritage—are violent, racist pedophiles. She asserts that she is being targeted by those individuals and entitles, or supporters of those individuals and entities, out of their racism against her, a desire to quash her public sharing of her beliefs, and—somehow—perverse sexual gratification….

Plaintiff's amended complaint is 142 pages in length with 2,143 pages in appended exhibits…. Plaintiff states that she:

bring[s] this action to permanently enjoin the defendants, who, as anti-black bigots and members of a violent, seditious, and rabbi-influenced ethnoreligious cartel from further employing government institutions' termination mechanisms to engineer antitrust restraints on my constitutional right to receive congressionally mandated, government-funded financial, educational and protective services which the defendants now treat as Jew-owned merchandise that is withheld from me to subject me to public defamation/public denigration; political persecution; sexually sadistic law enforcement terrorism, educational and economic deprivation to which Jews subject African Americans, Ethiopian Jews and Palestinians; and to enforce the Babylonian Talmud's espousal of the hatred of people of African descent; the Babylonian Talmud's espousal of Jews' right to lie to non-Jews in court settings; the Babylonian Talmud's espousal of Jews' right to have sex with children; the Babylonian Talmud's espousal of Jews' right to subject non-Jews to theft, kidnapping and murder with impunity; and the Babylonian Talmud's prohibition against reporting the tortious and criminal acts committed by lawbreaking Jews as an actionable act of antisemitism in a court of law, for which Jewish leadership's anti-gentile, predatory acts are protected by the International Holocaust Remembrance Alliance use of the 'working definitions of antisemitism' to duplicitously place Jews in a perpetual state of Munchausen Syndrome by proxy victimhood as a cover … [.]

Plaintiff makes many references to and provides and attachments of documents that appear relevant to her marriage, divorce, and spousal support issues. Plaintiff refers to a decades-long conspiracy, potentially beginning in 1979, in which she claims she was denied spousal support and child support, her children were placed in foster care (though, she claims to have placed them voluntarily) and "trafficked by members of the Democratic Party's Babylonian Talmud-adherent Ashkenazi Jewish cartel-controlled foster care sex trade where my children were both sodomized," she was denied a variety of government services and help, she was subjected to baseless and false criminal prosecution, denied assistance of counsel, provided with falsified documents, and subjected to involuntary psychiatric commitment, and intimidation by a variety of defendants, perhaps most prominently mentioned being U.S. District Judge Nicholas Garaufis of the Eastern District of New York—all as part of the overall conspiracy to "enforce the Babylonian Talmudic Law of Moser's Prohibition from Reporting Tortious and Criminal Acts of Lawbreaking Jews." …

Even when read with special solicitude, plaintiff's amended complaint must be dismissed as frivolous. All of plaintiff's causes of action against defendants must be dismissed as frivolous because they are all premised on the "irrational" theory that the tens of thousands of defendants are collectively engaged in a decades-long conspiracy to violate plaintiff's constitutional rights, prosecute her, involuntarily hospitalize, her prevent her (decades ago) from obtaining spousal and child support, or deprive her access to the courts, based on their participation in or connection with a "Babylonian Talmudic, Ashkenazi Jewish ethnoreligious cartel" that "hate[s] African-Americans" and allegedly condones "pedophilia and sexual violence" and/or their disagreement with and plaintiff's public sharing of her beliefs that they engage in violent acts and pedophilic acts with children, as "directed by rabbis." …

Plaintiff's amended complaint provides that the viewpoint discrimination stems from the judicial officers' and others' membership/participation in, or aiding and abetting of, the "seditious conspiracy." Review of plaintiff's prior decisions, however, indicate that plaintiff's First Amendment claims are frivolous and fail to state a claim because those cases were not dismissed because of viewpoint discrimination.

Although some of these decisions observed that plaintiff's submissions contained language that was antisemitic or troubling, those observations are dicta. It is abundantly clear that those cases were decidedly not dismissed because of the judges' beliefs that her claims or statements were antisemitic or and/or troubling; rather, the dismissals were on other sound legal grounds, such as frivolity, lack of subject matter jurisdiction, collateral estoppel/res judicata, and many others. Accordingly, in addition to dismissal for frivolity grounds, plaintiff's First Amendment claims can be alternatively dismissed for failure to state a claim upon which relief can be granted….

Although plaintiff is "new" to this District, given that this appears to be the first action she has commenced here, based on her pattern of behavior in similar actions in other courts, her frivolous threats of legal action against clerk's office employees, and the content of this amended complaint, it is likely plaintiff will seek to pursue additional frivolous and duplicative lawsuits in this District. "Given plaintiff's vexatious history of filing significant numbers of frivolous actions, it is further recommended that, if the District Judge adopts this Report-Recommendation & Order, the District Judge warn plaintiff that if he is to file further frivolous actions in this district, a bar order may result."

{The undersigned further wishes to make the District Judge aware that the Clerk's office has informed the undersigned that plaintiff has engaged in daily harassing phone calls/electronic help-desk communications to this Court's clerk's office, where plaintiff often raises her voice; spews abusive, racist comments toward the recipients of her calls; and threatens lawsuits against court employees because she disagrees with the amount of time it takes for the Court to address her filings. When advised that the Court is aware of her filings and that they will be addressed in due course—which is in line with the Court's large volume of cases, including many that were filed before plaintiff's—plaintiff accused the nonjudicial staff of conspiring to "hide" her filings from the judges. The undersigned observes that plaintiff has previously engaged in similar conduct toward clerk's office employees in at least one prior case, with the Eastern District of New York noting that, in addition to "engag[ing], at times, in harassing, and sometimes antisemitic telephone calls to the Clerk's Office and to chambers[,]" plaintiff even "attempted to contact judicial staff outside of the Courthouse."}

Given that plaintiff oft commences actions in forma pauperis but then pays the filing fee, the undersigned recommends that any warning advise plaintiff that any bar that may be imposed—after providing her with notice and an opportunity to be heard—would prohibit her from filing any new action, either in forma pauperis or through paying the filing fee, without prior permission of the Court….

For a similar case from last year, though involving a lawyer and not just a vexatious litigant, see here.

The post Plaintiff Alleges Her Children Were "Trafficked by Members of the Democratic Party's Babylonian Talmud-Adherent Ashkenazi Jewish Cartel-Controlled Foster Care Sex Trade" appeared first on Reason.com.

[Irina Manta] "Tinder Backgrounds" to Appear in Georgia Law Review

[Why Dating Apps Should Have ID Verification and Mandatory Background Checks]

Dating apps continue to make headlines for how little protection they provide against repeat violent offenders and arguably enable them. I have a law review article entitled "Tinder Backgrounds" that is forthcoming in the Georgia Law Review (and whose draft is available here) trying to address this issue. Here is the abstract:

In an era in which dating apps have become the primary matchmaker for millions of Americans, the lack of basic safety requirements for these platforms is both striking and dangerous. This Article explores how the rise of dating apps has created unprecedented opportunities for predators to exploit victims through deception and violence, while leaving those victims with virtually no legal recourse. Although dating apps have become critical infrastructure for modern relationship formation, their operators face minimal legal obligations to verify user identities or screen for unsafe individuals. Users have attempted to fill this regulatory void through self-help measures like crowdsourced warning groups on social media, but these informal solutions expose participants to defamation liability while failing to provide systematic protection.

As the Supreme Court considers ID verification requirements for adult websites in Free Speech Coalition, Inc. v. Paxton, this Article argues that similar measures—combined with mandatory background checks—are actually of greater importance in the dating app context where physical safety is at stake. While dating apps match users who would otherwise never meet, this convenience brings heightened risks when perpetrators can easily misrepresent their identities and histories. This Article proposes a federal framework requiring dating apps to verify and store user identities through government-issued IDs and conduct criminal background checks. This approach would help to prevent sexual, financial, and other predation while preserving the core benefits that make online dating valuable. The Article demonstrates why traditional objections to regulating intimacy and dating markets hold less force in an era of industrialized matchmaking, and how existing precedents support reasonable verification requirements that protect user safety as technology-assisted deception (including via artificial intelligence) continues to evolve. Through carefully calibrated regulation focused on prevention rather than after-the-fact remedies, the law can better protect the many individuals who rely on dating apps to find connection.

The post "Tinder Backgrounds" to Appear in Georgia Law Review appeared first on Reason.com.

[Eugene Volokh] Court Dismisses Oklahoma Teacher's Libel Suit Against State Official, Stemming from Debate Over "Gender Queer" in School Libraries

From the April 10 decision by Judge Bernard Jones (W.D. Okla.) in Boismier v. Walters:

This action stems from certain public statements made by Defendant Ryan Walters during his tenure as Oklahoma's Secretary of Education. {After making the statements underlying this action, Walters was elected as Oklahoma's Superintendent of Public Instruction and assumed that office in 2023.} Plaintiff Summer Boismier, the target of Walters's remarks, maintains that these statements amounted to actionable defamation….

The court recounts the following undisputed facts:

In May 2021, Oklahoma Governor Kevin Stitt signed House Bill 1775 (H.B. 1775) into law…. [T]he law prohibits Oklahoma schools from teaching certain concepts related to race and sex. Unsurprisingly, its enactment sparked significant public controversy and debate, one in which Boismier would later become entangled.

At the time of H.B. 1775's enactment, Boismier was a high school English teacher for Norman Public Schools in Oklahoma. On the first day of the 2022–2023 school year, her students arrived to find the classroom bookshelves covered in red butcher paper with a handwritten message that said: "Books the state doesn't want you to read."

A QR code affixed to the paper directed students to the Brooklyn Public Library's "Books Unbanned" project, which, upon obtaining a digital library card, provides access to books—like Gender Queer and Flamer—that Oklahoma schools have removed in response to H.B. 1775. Before the first day of class, Boismier posted photos of her classroom setup to her public Twitter account, accompanied by a message referencing H.B. 1775 and noting that Oklahoma leadership had labeled the covered books—particularly those by "BIPOC, LGBTQ+, and/or gender non-conforming authors"—as "pornography" and "indoctrination." She later admitted that her decision to provide the QR code was in response to incendiary comments by Walters about Gender Queer.

{Sometime before July 28, 2022, Walters discovered that Gender Queer and Flamer were accessible to students in Tulsa Public Schools and posted images from the books—describing them as "inappropriate sexual material"—on Facebook. When Facebook quickly removed his post, Walters expressed displeasure that the site had "higher standards than … Tulsa Public Schools." And Walters was not alone in criticizing the availability of Gender Queer and Flamer in Oklahoma public schools. On July 27, 2022, then-Superintendent of Public Instruction Joy Hofmeister publicly condemned "the presence of two obscene graphic novels potentially available in Tulsa Public Schools." In her written statement, Hofmeister described the novels as "inappropriate, sexually explicit material" and "pornography that does not belong in any public school library."}

After a concerned parent complained to school officials about Boismier's classroom setup, the school removed her to investigate. Within days, she resigned.

Boismier's resignation was swiftly followed by a series of [local and national] news stories … covering her departure from Norman Public Schools and opposition to H.B. 1775 (along with the Oklahoma politicians who supported it)…. In them, Boismier was directly quoted as saying:

"I have made the decision to resign from my position at Norman High School. I will say that the district did offer me back my job, allowing me back in the classroom as of tomorrow morning. However, there were some fundamental ideological differences between myself and district representatives that I just couldn't get past. HB 1775 has created an impossible working environment for teachers and a devastating learning environment for students. For the second year in a row, students at Norman High will be without a certified English teacher for a substantial amount of time. The fault for that lies with Governor Stitt and Republican state leadership." … "I saw this as an opportunity for my kids who were seeing their stories hidden to skirt [H.B. 1775's] directive …. Nowhere … did it say we can't put a QR code on a wall."… "[My library is] a physical manifestation of an HB 1775 violation." [Other examples omitted for space reasons, but available in the decision. -EV]

On August 26, 2022, KOKH Fox 25 published another story on Boismier, this time featuring the perspective of a concerned mother. The mother explained that after scanning the Brooklyn Public Library QR code her daughter had received from Boismier, it directed her to the book Gender Queer. Deeply unsettled by the book's content, the mother characterized it as "pornographic material" and insisted that Boismier "should have criminal charges against her." The following are excerpts from Gender Queer:

This all leads to the challenged statements underlying this defamation action. Boismier alleged that … Walters posted a letter to Twitter containing several "false or misleading statements" about her, including that she had (1) "been fired from her teaching position with the Norman Public Schools," (2) "distributed pornography to students, which would have been a serious and disturbing crime," and (3) "caused harm and shame to the entire profession of teachers by sexualizing her classroom." She further alleged that in a follow-up letter posted to Twitter, Walters falsely asserted that she had instead "resigned rather than face removal." …

The court held that Boismier was a "limited purpose public figure":

Boismier did not speak out as a private figure swept unwillingly into a public controversy; she "voluntarily inject[ed]" herself to the forefront of debate over H.B. 1775 and its impact on classrooms like hers. Before Walters's tweets, Boismier had already transformed her classroom into a visible protest against H.B. 1775 and posted about it on Twitter—by her own admission, motivated by Walters's commentary on Gender Queer. Then, on the heels of her resignation, she actively facilitated media coverage of her departure from teaching and opposition to H.B. 1775, providing direct quotes to numerous outlets and offering extended commentary in at least two question-and-answer interviews. Finally, on the very day Walters tweeted about her, she appeared in an Oklahoma daily newspaper to voice further frustrations about H.B. 1775 and call for change in local schools. There can be little doubt that Boismier actively used the media as a vehicle to influence public sentiment regarding H.B. 1775's effect on education in Oklahoma. And the Court finds that this conduct rendered her a limited-purpose public figure on the issue of H.B. 1775's interplay with her teaching career in Oklahoma….

Because she was a limited purpose public figure, she had to show (by clear and convincing evidence) that Walters spoke with "actual malice," which is to say knowing that the statements were false or were likely false. The court held she couldn't do that as to Walters' erroneous initial statement that she had been fired:

[T]he Court finds that Boismier has failed to present sufficient evidence from which a rational finder of fact could conclude, by clear and convincing evidence, that Walters acted with actual malice. To be sure, Walters often engages in pointed and provocative rhetoric—particularly when responding to those he perceives as opposing his agenda. One need look no further than the news stories cited in Boismier's response. In one, Walters is recently described as linking the 2025 terrorist attack in New Orleans, Louisiana, to educational instruction in public schools.

But what is lacking from Boismier is any genuine explanation of how Walters's post-August 2022 conduct—some of which occurred as recently as 2025—establishes that he spoke with actual malice when stating that Boismier had been terminated. To the extent this history suggests some degree of "ill will, hatred or a desire to injure" Boismier, that alone "is not enough to establish actual malice." …

[Boismier] insists that his failure to make even minimal efforts to verify whether she had, in fact, been terminated amounts to reckless disregard for the truth. Perhaps a more responsible or reasonable public official would have—and as a matter of public trust, should have—done more to verify his claim before taking to Twitter. But that failure, standing alone, does not warrant a jury trial. Notably, too, when Walters was advised later that same day that his statement was incorrect, he … promptly issued a revised letter clarifying that Boismier had resigned. This further weighs against an inference of actual malice….

The court also held that Boismier couldn't show knowing or reckless falsehood as to "Walters's statement that Boismier provided her students access to banned and pornographic material":

Walters argues as a threshold matter that this statement was "reasonable and … substantially true," and while the Court is hesitant to wade into the murky waters of what is and isn't pornographic material, it cannot ignore that the imagery in Gender Queer arguably lends itself to such a characterization. At least in the context of child pornography, the Supreme Court has loosely defined the term as "sexually explicit visual portrayals that feature children." See also Pornography, Black's Law Dictionary (12th ed. 2024) (defining "pornography" as "[m]aterial (such as writings, photographs, or movies) depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement," while acknowledging that the term is "notoriously difficult to define"). And while the images from Gender Queer may not include children, they do appear to depict graphic sexual activity.

But even assuming Walters's statement is one of verifiable fact—and even if an infallible arbiter were to conclude that Gender Queer does not meet the definition of pornographic material—the closeness of the question weighs heavily against a finding of actual malice. Where the line between what is and isn't pornographic is so imprecise, the Court has trouble concluding that Walters's characterization, however controversial, reflects an inference of known falsity or a reckless disregard for the truth. This is especially so when others, including Oklahoma's then-Superintendent of Public Instruction, were denouncing the book in the same way.

And the court concluded that Walters's statement that Boismier "caused such harm and shame to the entire profession" is opinion and thus can't be actionable:

[Walters's statement] lacks specificity or precision, offers no concrete claim about what harm was caused or how the profession as a whole was impacted, and is not verifiable in any objective sense. It reflects, instead, Walters's rhetorical judgment about a public controversy in which both he and Boismier were outspoken participants. And in the broader context of political discourse surrounding H.B. 1775, the remark reads as subjective commentary, not a factual assertion susceptible to defamation liability. Indeed, the Court can only imagine what a trial would look like testing whether the teaching profession, in fact, felt "shame," and whether Boismier was the one who caused it….

David R. Gleason (Moricoli Kellogg & Gleason PC) represents Walters.

 

The post Court Dismisses Oklahoma Teacher's Libel Suit Against State Official, Stemming from Debate Over "Gender Queer" in School Libraries appeared first on Reason.com.