Eugene Volokh's Blog, page 12

[David Bernstein] Institutional Antisemitism at UCLA and Especially its Law School

Various departments and programs at UCLA are sponsoring a talk by Rutgers professor Noura Erakat styled Revisiting Zionism as a Form of Racism and Racial Discrimination. And given Erakat's record, "Revisiting" means "Endorsing the Notion that Zionism is a Form of Racism." There are two commentators on her talk. There is no pretense of academic debate here, each of them is ideologically sympatico.

 

 

 

 

 

 

 

To be blunt, this is antisemitic propaganda disguised as an academic talk. It's the 2025 equivalent of reconsidering whether Jews really bake the blood of Christian children into matzah. Like the blood libels of old, it's a libel invented and spread (in this case by the USSR) to justify mass violence against Jews. For those interested in the origins of the libel and why it's antisemitic in both its origins and intent, see the addendum below.

Of course, Erakat has a First Amendment right to say antisemitic things, and people, in general, have a right to invite her to do so. But look at who is sponsoring her talk. The English Department? The David J. Epstein Program in Public Interest Law and Policy? The Asian American Studies Department?

Even if one wanted to be generous and argue that this is a legitimate academic talk rather than essentially inviting Nick Fuentes in leftist drag, why are departments and programs with no obvious academic connection to Zionism or "Palestine" sponsoring this talk, other than to direct university resources to support Erakat's point of view?

University administrators should not be permitting this. As David L. Bernstein and  I recently wrote:

For rather obvious reasons, academic departments should be ideologically neutral and thus should not take a position on political issues. As subunits of the university, departments have no claim to academic freedom. University policy should prohibit academic departments from taking stands on issues of public import. A related issue is university departments hosting controversial speakers. In general, universities should tread lightly in regulating speakers. However, we believe that university administrators can step in when the event the department wishes to sponsor is political rather than academic in nature….

Political groups on campus organized by students or faculty have the right to engage in such activity. But academic departments are not supposed to be political. Perhaps more important, unlike, for example, a student pro-Palestinian group, academic departments are subunits of the university administration, and their actions represent the university.  University administrators therefore can and should order departments not to expend university funds on events that primarily serve political rather than academic purposes. Administrators may follow the lead of Wake Forest president Susan Wente. She instructed Wake Forest departments to cancel their October 7, 2024, lecture by Rabab Abdulhadi, who had praised Islamic terrorists and had organized an event where her students could make posters that said, "My Heroes Have Always Killed Colonizers."

I reserve judgment as to whether Erakat's speech qualifies under a loose definition of an academic talk, but I am quite certain that it does not qualify as an academic talk within the field of English or Asian American Studies (which, admittedly arbitrarily, does not include the Middle East). UCLA should be especially sensitive to departments sponsoring antisemitic events far afield from their academic missions, given that its under federal investigation for cultivating an antisemitic environment.

Finally, what's up with UCLA Law School? In addition to the Epstein program (directed by Sunita Patel), the Critical Race Theory program (directed by LaToya Baldwin Clark, and which apparently does not apply critical theory to antisemitism, at all) is sponsoring the talk, as is, ironically, the Promise Institute for Human Rights (directed by Catherine Sweetser), which apparently doesn't believe that Jews are among those who deserve human rights. Dean Michael Waterstone really needs to clean house.

ADDENDUM

First, a definition: Zionism, historically, is support for a Jewish national home within the historic Land of Israel. Zionism succeeded in 1948, in that a Jewish national home was established, the State of Israel. Zionism today means supporting the continued existence of the State of Israel as a Jewish national home. With that framework, there is an extremely wide range of opinions among "Zionists" ranging from extreme liberals to chauvinistic extremists.

There is nothing inherently racist about Zionism, at least any more so than support for any other nationalist movement or existing country.

Second, some history, relying on the work of Izabella Tabarovsky (e.g.). Starting in the 1960s, the USSR chose to cultivate support in the Arab and Muslim world by championing the cause of forces hostile to Israel in general, and the cause of displaced Arabs from the 1948 Israeli War of Independence, newly given the identity of "Palestinians," in particular. At the same time, and especially after the 1967 Six Day War, the Soviets also sought to clamp down on nationalistic/Zionist sentiment among its Jewish population, which had been the victims of Soviet repression of religion and nationalism in general from the beginning, and institutional antisemitism since Stalin's time.

To promote this agenda, the Soviets hired the experts: antisemitic Russian nationalists who had been imprisoned in gulags during Stalin's time, but released by Kruschev. Before the Russian Revolution, Russian nationalists had been the leading purveyors of state-sponsored antisemitism in the world, including authorship of the infamous forgery, The Protocols of the Elders of Zion.

These hired intellectual goons had an inspired agenda. Many people around the world empathized with the Jewish people, and therefore Israel, in the aftermath of the Holocaust. To blunt and indeed reverse this dynamic, they did not engage in Holocaust denial. Rather, engaged in Holocaust inversion.

The Nazis, per Soviet doctrine, were the epitome of Fascism. The Holocaust was Fascism manifested in racism. Israel, rather than being heir to the victims of Nazis, were in fact the heirs to Naziism, as the Jews who founded Israel adopted their own version of racist Fascism, Zionism.

Adding "racism" to the allegation of Fascism (the Soviets called all of their enemies "Fascists") was inspired. The history of antisemitism for hundreds of years has involved depicting Jews as a demonic force, which in turn meant in practice that antisemites attributed whatever was most evil in their mindset to Jews. So to antisemitic Christians, Jews were Christ-Killers. To capitalists, Communists. To Communists, capitalists. To conservatives, revolutionaries. To revolutionaries, reactionaries. To believers in traditional sexual morality, licentious beasts responsible for prostitution and pornography. To sexual liberationists, the font of repressive religious sexual morality. And so on.

By the late 1960s, among left-leaning intellectuals, "racism" as the most grievous of all sins. So the Zionists were depicted not just as Fascists, but as racist Fascists. Unsurprisingly, Soviet propaganda in this vein also relied on imagery and tropes directly out of traditional Russian (and Nazi) antisemitic propaganda.

In turn, this very successful propaganda campaign led to the infamous United Nations vote in 1975 that "Zionism is Racism," the context for Erakat's talk.

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[Jonathan H. Adler] District Court Dismisses Another Kids Climate Suit, As Existing Law Requires

[A suit asking a district court judge to undo every Trump Administration energy policy initiative is dismissed with prejudice; appeal to follow.]

On Wednesday, Judge Dale Christensen on the U.S. District Court for the District of Montana "reluctantly" dismissed Lighthiser v. Trump, the latest "kids climate suit," on standing grounds. The only thing surprising about this was that Judge Christensen thought it was necessary to hold an evidentiary hearing, featuring multiple witnesses, before reaching this conclusion. Existing Ninth Circuit precedent--from Juliana v. United States, a prior kids climate case--clearly controlled the outcome.

As with prior kids climate cases, Lighthiser involved youth plaintiffs alleging that the federal government's failure to act more aggressively to control greenhouse gas emissions and mitigate climate change violated the plaintiffs' constitutional rights. In particular, the Lighthiser plaintiffs claimed that the Trump Administration's various energy-related Executive Orders and efforts to undo the Biden Administration's climate policies violate the Due Process Clause of the Constitution and are otherwise unlawful. As Judge Christensen noted, the plaintiffs were "effectively asking that this Court order the United States to return to the environmental policy of the previous administration."

Even had the court found a way around the Ninth Circuit's rejection of standing for similar claims in Juliana, the district court would still have been justified in dismissing the case. The Constitutional claim, like those in other kids climate cases, are audacious (to say the least) and at odds with existing jurisprudence. The Lighthiser plaintiffs were nonetheless able to get multiple prominent academics to serve as expert witnesses in their case.

Judge Christensen dismissed the case with prejudice, as he recognized that the plaintiffs faced more than a pleading problem, and any amendment to their complaint "would be futile." An appeal is likely. A different ultimate outcome is not. Even were the Ninth Circuit to reconsider its Juliana decision en banc, any decision allowing this litigation to proceed would be unlikely to survive a trip to One First Street.

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[Josh Blackman] Today in Supreme Court History: October 18, 1960

10/18/1960: Gomillion v. Lightfoot argued.

The Warren Court (1958-1962)

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[Ilya Somin] Seventh Circuit Rules Against Trump's Use of National Guard in Chicago

[The Court of Appeals unanimously refused to stay a trial court ruling against Trump, signaling the judges believe his use of the Guard is illegal.]

Members of the Texas National Guard assemble in Elwood, Illinois, at the Army Reserve Training Center in the southwest suburb of Chicago. ( Brian Cassella/TNS/Newscom)

 

Yesterday, the US Court of Appeals for the Seventh Circuit refused to stay a district court ruling barring President Trump from using the National Guard in Illinois, ostensibly to counter violent protests against ICE deportation efforts. The court ruled that Trump was unlikely to prevail in this litigation, because the kind of emergency situations that legally permit federalization of the National Guard don't exist. Notably, the three judges were unanimous, and they include a George W. Bush appointee (Judge Ilana Diamond Rovner), an Obama appointee (Judge Hamilton), and a Trump appointee (Judge St. Eve). Thus, the ruling can't easily be depicted as a purely left-wing one.

This decision follows similar rulings by Illinois District Judge April Perry (which this decision refused to stay), Oregon District Judge Karin Immergut (a conservative Trump appointee), and California District Judge Charles Breyer (brother of former Supreme Court Justice Stephen Breyer). The three district court rulings lay out the issues in greater detail than the relatively brief Seventh Circuit decision, and all three are impressive and compelling, in my view.

Judge Breyer's decision was stayed by the Ninth Circuit appellate court, primarily on the grounds that he did not give enough deference to the president. I criticized that decision here. Significantly, the three more recent rulings against Trump on this issue have held there is no legal justification for his actions even under the Ninth Circuit's highly deferential approach. In a recent Dispatch article, I explain in detail why courts should not defer to executive determinations of whether an exigency justifying the use of extraordinary emergency powers exists. Otherwise, the executive could invoke such sweeping and dangerous powers anytime he wants, seriously threatening civil liberties and the structure of constitutional government. I also explain there why the executive's supposedly superior expertise is not a good reason for deference in such cases. A genuine massive emergency is readily apparent, and does not generally require specialized expertise to detect.

The statute Trump relied on, 10 U.S.C. Section 12406, can only be used to federalize state National Guard forces and use them for law enforcement in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

The Seventh Circuit explained why there is no "rebellion" going on in Illinois:

[W]e emphasize that the critical analysis of a "rebellion" centers on the nature of the resistance to governmental authority. Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or
policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest. Such conduct exceeds the scope of the First Amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellions at least use deliberate, organized violence to resist governmental authority, the problematic incidents in this record clearly fall within the considerable daylight between protected speech and rebellion.

Applying our tentative understanding of "rebellion" to the district court's factual findings, and even after affording great deference to the President's evaluation of the circumstances, we see insufficient evidence of a rebellion or danger of rebellion in Illinois. The spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government's immigration policies and actions, without more, does not give rise to a danger of rebellion against the government's authority. The administration thus has not demonstrated that it is likely to succeed on this issue.

The court also explained why there is no inability to execute the laws with regular forces:

We turn next to the meaning of § 12406(3)—"unable with the regular forces to execute the laws of the United States." The administration exhorts us to accept the Ninth Circuit's reading of this subsection. In Newsom, the Ninth Circuit interpreted "unable" to mean that the federal government was "significantly impeded," and "regular forces" to mean "federal officers." 141 F.4th at 1052. The district court in this case, by contrast, concluded that the definition of "unable" is "not having sufficient power or ability; being incapable." And it determined that "regular forces" means the soldiers and officers serving in the regular armed forces.

We need not fully resolve these thorny and complex issues of statutory interpretation now, because we conclude that the administration has not met its burden under either standard. Even applying great deference to the administration's view of the facts, under the facts as found by the district court, there is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws. Federal facilities, including the processing facility in Broadview, have remained open despite regular demonstrations against the administration's immigration policies. And though federal officers have encountered sporadic disruptions, they have been quickly contained by local, state, and federal authorities. At the same time, immigration arrests and deportations have proceeded apace in Illinois over the past year, and the administration has been proclaiming the success of its current efforts to enforce immigration laws in the Chicago area. The administration accordingly is also unlikely to succeed on this argument.

Understood in context, I think inability to execute the laws with "regular forces" requires a massive breakdown of civil order, not simply a failure to apprehend all violators of federal law, or a situation where enforcement is "significantly impeded." The latter circumstances exists in almost every community in the nation, at virtually all times. Almost every community has large numbers of people who get away with violating one federal law or another, and whom law enforcement is unable to detect and prosecute.

For example, over 50% of adult Americans admit to having used marijuana at some point in their lives, and the true rate of usage is likely even higher; marijuana possession is a federal crime. Large percentages have also violated other federal laws and regulations without getting caught. As Judge Perry points out in the district court ruling in the Illinois case, "Defense counsel confirmed during oral argument that [the administration's position] would allow the federalization of the National Guard if there was any repeated or ongoing violation of federal law in a community." That state of affairs exists virtually everywhere at virtually all times.

There are various technical legal issues  in these cases, and it is important that courts address them correctly. But it is even more important to recognize the big-picture issue well described in the three district court rulings: If the Trump Administration prevails, the president could federalize the National Guard against the will of state governments, and use it against Americans pretty much whenever he wants. Such domestic use of the military was, as Judge Perry recounts, one of the British abuses that led to the American Revolution, and we should not allow the President to act like King George III and Lord North. Courts can help ensure that domestic use of the military remains limited to extraordinary emergency circumstances, not become a normal practice that the president can invoke whenever he wants.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Rebellion, bullet control, and vulgarity cloaked in euphemism. ]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

At IJ's Center for Judicial Engagement, we've long argued that having judges who can say "no" to the executive branch are a crucial, necessary condition to freedom, prosperity, and the "rule of law." But just what does it mean to have a "rule of law"? Over at our blog, Anthony Sanders discusses the essentials.

New on the Bound By Oath podcast: For the final episode of Season 3, we survey several strands of Supreme Court precedent that make it really, really hard for Native Americans to put their property to peaceful and productive use.

Gov't watchdog group brings FOIA lawsuit to force DOJ's Office of Legal Counsel to make several categories of its written opinions publicly accessible. D.C. Circuit: FOIA doesn't apply to any of the requested opinions, including those about interagency disputes, as they are neither adjudicatory nor adopted as the agency's working law. Watchdog group gets nothing. Concurrence: They should get nothing because they lack standing.New York requires ammunition sellers to conduct a background check on anyone buying ammunition. Ammunition sellers and gun owners sue and seek a preliminary injunction, alleging the law violates the Second Amendment. District court: The law is consistent with our historical traditions. Second Circuit: Actually, we don't even have to look at the history, because having to fill out some paperwork to buy bullets doesn't meaningfully constrain the right to keep and bear arms.Unlike some other circuits, the Fourth Circuit says there's really not ever going to be anything cruel and unusual about holding prisoners past their release dates. It might conceivably shock the conscience. But not in this case, where Virginia men convicted of attempted aggravated murder spent an extra year in prison before the state supreme court ruled that a new-but-retroactive state sentencing law did indeed apply to their convictions.Allegation: During "fraught, tense, and combative" five-hour interview, teen is told she can't leave police station until she names man who (she'd told a therapist) had sexually abused her as a child. The teen names the now-plaintiff, whose prosecution is dropped over a year later when prosecutors learn the teen had previously identified a different perpetrator. Can plaintiff sue the Prince William County, Va. detective who knew (or should have known) about the earlier ID and left it, and other exculpatory info, out of an arrest warrant affidavit? Fourth Circuit: The probable cause bar is a low one. Case dismissed.A few fellas were drinkin' moonshine in a Tishomingo County, Miss. trailer when things get out of hand and one is arrested for shooting some bullets—which he denies. Due to a prior conviction he's held awaiting trial. That lasts 1,233 days, during which he's given four attorneys—some of whom he's not told of—and three judges and files four pro se speedy trial motions. He's convicted. District court: Speedy trial violation, but only on one of the two counts in the indictment. Fifth Circuit (over a dissent): On the whole indictment. Habeas granted.It's hard to tell who's having the most fun in this Sixth Circuit case—whether it's the majority opinion carefully identifying which expletives were intended by which historical euphemisms, the dissent diligently cataloging the personal insults lobbed at American presidents over the centuries, or the middle-school-student plaintiff who complied with the directive to remove his "Let's Go Brandon" sweatshirt only to reveal a "Let's Go Brandon" t-shirt underneath—but everybody seems to be having a good time.Allegations: After five members of the University of Kentucky football team arrive at a frat party and attendees respond by physically assaulting them and hurling racial epithets, Lexington PD does the only responsible thing—fabricate information and very, very publicly charge the five teammates with burglary. ::Record scratch:: After grand jury refuses to indict, the teammates sue various denizens of the police department. Sixth Circuit: Yes you were arraigned and summoned to testify in court; yes one of your phones was seized; yes your reputations were tarnished nationwide when media picked up the cops' press release; yes the allegations, if true, "reflect extremely poorly" on Lexington's finest. But none of that amounts to a "deprivation of liberty," so your Fourth Amendment claims are non-starters. And your beef with the allegedly defamatory press release is a non-starter too, since all it did was parrot the charging documents, meaning it enjoys absolute privilege.Protesters have protested at an ICE facility a few miles west of Chicago for the past 19 years—with somewhat more intensity recently following the announcement of Operation Midway Blitz. A month after the announcement, the president federalized the Illinois National Guard. District court: Enjoined. Seventh Circuit: Just so. Political opposition is not rebellion, and a protest doesn't become a rebellion merely due to a few isolated incidents of violence. Without that, none of the statutory predicates for federalizing the National Guard have been met.Feds: We know this asylee and her kids have been in limbo for over a decade and we won't defend the Board of Immigration Appeals' application of the law, but can we have a remand so that we can kick her out in a way that's less transparently unlawful? Tenth Circuit: No.Allegation: In pre-dawn hours, naked, partially deaf man hears banging outside his home. Thinking it's his adult son returning home, he opens the back door a crack and heads back to his bedroom. Yikes! It's Levy County, Fla. officers (looking for the son, who isn't there). Without a word, an officer follows the man into the house and confronts him at gunpoint, allowing him to put on pants but then tasing him without warning. Officers: We didn't have a warrant, and there was no exigency. But the man consented to our entry when he opened the door. Eleventh Circuit: No qualified immunity. To a jury this must go.And in en banc news, by a vote of 8 to 6, the Third Circuit will not reconsider its decision invalidating Pennsylvania's practice of discarding mail-in ballots with missing or incorrect dates on the return envelope.And in more en banc news, the Fifth Circuit will not reconsider its now-revised decision that un-dismissed a lawsuit brought by a fired Southwest Airlines flight attendant who was terminated after sending the president of the flight attendants' union graphic images and videos of aborted fetuses.And in further en banc news, the Ninth Circuit will not reconsider its earlier ruling declining to stay a California district court ruling that preliminarily enjoined the Trump administration from halting federal funding for the only program ensuring legal representation for unaccompanied children in federal immigration proceedings. Nine judges dissent from denial, arguing that this is a contract claim that should have been brought in the Court of Federal Claims.

Final victory: After an 8-1 win at the Supreme Court last year reviving her First Amendment retaliation claim, IJ client Sylvia Gonzalez's case against Castle Hills, Tex. officially concluded this week. The settlement includes $500k for Sylvia, who was jailed on pretextual charges, and mandatory training for city officials that the Texas Municipal League will also offer statewide to over 1,000 municipalities. Click here to learn more.

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[Eugene Volokh] Apparent "Fabricated Citations" in Smith v. Trump Motion Filed by One of the Defendants

In the underlying lawsuit, Capitol Police officers are suing over injuries sustained in the January 6 riot; the defendants include President Trump and many others, including Kelly Meggs (an Oath Keepers member). Yesterday's Order to Show Cause by Judge Amit Mehta (D.D.C.) orders Meggs' counsel to "show cause … why the court should not impose sanctions and make a referral to relevant bar authorities for "knowingly mak[ing] a false statement of … law to a tribunal or fail[ing] to correct a false statement of … law previously made to the tribunal by the lawyer":

On July 11, 2025, Plaintiffs filed a motion to compel various Defendants, including Defendant Meggs, to respond to discovery requests and respond to initial disclosures. Ms. Stewart [Meggs' lawyer] filed an opposition brief on behalf of Mr. Meggs ("Opposition"). The Opposition is rife with fabricated citations to this District Court's Local Civil Rules, such as: "Civil Procedure Rule 104 (7)-(8)," "local Rule 104," "D.D.C. local Rule 104(7)," "D.D.C. Rule 8(a)," "Court's Rule 8(a)," and "L.R. 104.8." Id. at 1, 5–7. These rules do not exist. The Opposition also includes fabricated block quotations purporting to recite the text of "D.D.C. local Rule 104(7)" and "D.D.C. Rule 8(a)."

On August 5, 2025, Plaintiffs filed a reply brief that noted the false citations in the Opposition. Ms. Stewart thereafter failed to take appropriate steps to withdraw or correct all of the clear errors. In a notice filed on August 6, 2025, counsel acknowledged her mistake in citing to "local Rule 104(7)" instead of, as intended, to Maryland District Court Local Rule 104(7), but she made no mention of any other false citation. Then, when she sought leave to file a surreply, she again referenced her error in misciting a "MD District local rule" but corrected no other error.

Ms. Stewart's response to this Order to Show Cause shall explain (1) how the fabricated Local Civil Rule citations and quotations came to be included in the Opposition and (2) why upon reviewing Plaintiffs' reply brief she did not take immediate steps to withdraw or fully correct the Opposition.

The response is due next Tuesday.

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[Eugene Volokh] "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Conclusion

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I've serialized a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. Here is my Conclusion.

Conclusion

At many times in American history, the government has sought to promote the spread of ideas in various ways and to remove what it saw as interference with the spread of ideas. Early examples included the post office's lower rates for distributing newspapers and common carrier requirements for telegraph companies. Later, many state governments acted to protect private employees' political activity from retaliation by employers.

Some state and local governments have required private shopping malls to allow leafletters and signature gatherers, or barred landlords or places of public accommodation from excluding people based on their political activity. Federal, state, and local governments also often provide some sort of public funding for election campaigns. The availability of tax exemptions to nonprofit advocacy groups (at least ones that don't engage in electioneering or substantial amounts of lobbying) likewise helps promote "the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society." The candidate equal time rule—"[i]f any licensee shall permit … a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office"—survived the death of the Fairness Doctrine.

Either at the outset or eventually, these rules ended up being imposed in viewpoint-neutral ways. They are likely constitutional precisely because of their viewpoint neutrality, whatever dispute there might be as to their merits.

But at times, the government has also tried to impose not viewpoint neutrality requirements, but viewpoint diversity requirements (especially where viewpoint neutrality requirements would be infeasible). It is trying to do so now as to university funding conditions. And the most prominent earlier instance was the Fairness Doctrine.

The Fairness Doctrine, despite having been upheld in Red Lion, is now widely seen as a misstep. Indeed, it has especially (though not exclusively) been seen that way by conservatives, as is visible in the debates about the 1987 repeal and in later opinions by conservative Justices (especially Justice Thomas). The Doctrine tended to chill the expression of unorthodox viewpoints. In its enforcement, it necessarily ended up protecting mainstream viewpoints rather than outlier viewpoints. And it made it easier for government officials to pressure broadcasters to avoid expressing viewpoints that the officials dislike.

This Essay has argued that these flaws of the Fairness Doctrine are likely to be present in the new university viewpoint diversity funding conditions. Those who share the skepticism of the Fairness Doctrine and believe that its attempt to promote viewpoint diversity actually undermined viewpoint diversity, ought to take the same viewpoint as to the university funding conditions as well.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] Court Concludes Filings (from >250-Lawyer Firm) Contained AI Hallucinations

Tovar v. American Automatic Fire Suppression Inc., decided Oct. 3 by San Diego County Superior Court Judge Carolyn M. Caietti, declined to impose sanctions on defendant's lawyers, because the plaintiff hadn't complied with certain procedural rules, but added:

Notwithstanding the denial on procedural grounds, the Court is deeply troubled by the conduct of Defense counsel. Defendants admitted to submitting authority that was miscited, non-existent or inapposite…. "Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that the attorney responsible for submitting the pleading has not personally read and verified." … [A] party's citation to fabricated legal authorities violate[] "a basic duty counsel owed to his client and the court" ….

One of Defendants' most recent motions contain both citations to cases that do not appear to exist and factual misrepresentations. On July 23, 2025, Defendants filed a motion to compel an independent medical examination of Plaintiff. There is a citation to a case that does not exist and a citation that does not stand for the premise asserted.

In addition, Attorney Woods' supporting declaration contained [non-AI-related] misrepresentations to the Court. [Details omitted. -EV]

Defendants also cite to a Notice of Errata filed in relation to the IME motion as having cured any false citations or misrepresentations. While the Notice of Errata removed citations to two of the cases cited, it more so "corrected" other citations to repealed statutes. It also minimized the citations to "clerical errors" that did not alter the substance of the legal argument presented. A stark contrast to the position taken by Defendants now.

Despite Attorney Leonard and Olson's acceptance of responsibility, Defendants and their counsel still attempt to shift blame on Plaintiff, which is inappropriate and not persuasive. Plaintiff's theory of the case, "tenor," correspondence etc. plainly did not cause Defendants to submit to the Court miscited authority, fake case citations and factual misrepresentations. For the record, while the Court accepts the apologies it made, it does not approve of Defendants and their counsel's course of conduct admitted to in this matter.

All of this conduct is contrary to the rules of professional responsibility and is the type of conduct that erodes trust in the legal profession. One of the attorneys is a member of the respected ABOTA organization which prides itself on "civility, integrity and professionalism" as well as to protect the independence of the judiciary and the rule of law. This conduct runs afoul of this noble standard that frankly all attorneys and those in the legal profession should practice each day.

This is hopefully an experience that will never be repeated by the attorneys involved in this matter, let alone others in the profession….

I e-mailed the firm for a statement, and a spokesperson responded that, "As the Court noted," the firm "accepts responsibility for our obligation to present the highest quality work product to the Court. At this technological inflection point for the legal industry, we remain committed to our policy of responsible and ethical advocacy, even and especially when AI is involved."

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[Josh Blackman] Panel on Judicial Clerkships and Internships

Today I led a panel at the South Texas College of Law Houston about judicial clerkships and internships. I was honored to be joined by three of our former students who clerked at the District Court, Fifth Circuit, and Supreme Court of Texas. I am very proud of our recent clerk placements, including seven students going to the Fifth Circuit, about the same number going to the Supreme Court of Texas, plus a host of students going to the federal district courts.

This video will be of interest to students at all law schools, and should also be of interest to those planning to go to law school--including at South Texas. If any students are applying to South Texas, they are welcome to sit in on my class. Please email me!

 

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