Eugene Volokh's Blog, page 15

[John Ross] Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal

[Big game hunts, Victorian London, and those trendy Trader Joe’s bags.]

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

Where's the (cultivated) beef? Not in Texas. Starting September 1, it is illegal to sell cultivated meat—meat grown directly from animal cells—in the Lone Star State. The law's sponsors admit that the purpose of the law is to protect Texas cattle ranchers from this innovative competition, but that is not a legitimate use of government power. That's why IJ has teamed up with two California-based startups, Wildtype and UPSIDE Foods, to challenge Texas's unconstitutional ban. Read more here.

Following executive order, State Department adopts policy requiring passports to state biological sex of bearer. Transgender and non-binary plaintiffs challenge policy and win preliminary injunction in Massachusetts district court. Gov't: Please stay the injunction pending appeal; this policy isn't subject to judicial review. First Circuit (order, and hence in a blessedly non-Courier typeface): Seems like it is reviewable, and you didn't really engage with the merits of the district court's decision, so the injunction shall stay in place.This First Circuit qualified-immunity opinion not only provides a chart to help the reader understand the sequence of events in question but then helpfully reproduces that very chart in a later footnote just in case the reader has forgotten the chart from five pages ago.For hardcore defamation-law fans who have not read enough about Donald Trump's defamation of E. Jean Carroll and the ensuing six years of litigation, we offer this Second Circuit opinion affirming an $83.3 mil award in Carroll's first defamation case against Trump (which, oddly, went to trial after her second defamation case against Trump).In good free-speech news, the Second Circuit holds that restrictions on legal advice are restrictions on speech that require First Amendment scrutiny. In bad free-speech news, the same panel then holds that the trial court erred in applying strict scrutiny instead of intermediate scrutiny to those restrictions. And in rather-vexing free-speech news, the panel then just vacates the plaintiffs' preliminary injunction instead of explaining whether the restrictions survive intermediate scrutiny. (This is an IJ case.)In which the Harvard Law professoriat continues its suitably distinguished streak of falling on their faces in the circuit courts, this time in the Second Circuit. (In the interests of precision, we'll note that we're not entirely sure whether this latest appellant still is a member of the faculty, but since his pro se brief takes pains to note the affiliation, so too shall we, your 'umble correspondents.)Third Circuit: Look, we can certainly imagine that having a philosophy professor who publicly talks up Hitler off-campus might disrupt your college's operations, but the deal is that we don't have to imagine the disruption, you have to prove it. Case un-dismissed!Much of modern constitutional law seems to center around whether a time-traveler from 1791 would think this Third Circuit opinion correctly evaluates various New Jersey restrictions on owning or carrying firearms, but it's maybe more fun to imagine a time-traveler from, say, the 1990s, who would be impressed that the majority and dissent span 236 pages instead of simply answering the question "can the government ban firearms when . . ." by saying "yes" before anyone finished asking.Fourth Circuit: The Eleventh Amendment, in its majesty, means courts cannot order a state to pay interest that accrued yesterday but can absolutely order a state to pay interest that will accrue tomorrow.By early March, the Trump administration had fired more than 24,000 probationary employees. Blue states sued, and the District of Maryland preliminarily enjoined the firings. Fourth Circuit (over a dissent): A statute saying affected states are supposed to get 60 days' notice of reductions in force might mean there's some injury—but not nearly enough for states to control federal employment. These suits need to be brought by the employees themselves. No standing; case dismissed.Lead counsel is hospitalized right before oral argument. Court declines to postpone argument. With two hours' notice, second chair is haled to the lectern (and does a bang-up job). Fifth Circuit (published order): On reflection … we're willing to do an additional argument by Zoom if you guys want. Two-judge concurrence: And for everyone's benefit in the future, here's a string-cite of examples of other courts' postponing arguments on the front end in response to last-minute emergencies.In 2015, the Baptist Convention of Maryland/Delaware fired its executive director (who is also an ordained minister) after conflict between him and a partner religious organization ended in a "schism." [Ed. Note: Hah.]  In 2017, he sued the partner organization. In 2020, the Fifth Circuit held it "premature" to dismiss his claims under the church autonomy doctrine. Judge Oldham, on the losing side of a 9–8 vote that denied rehearing en banc, had some things to say. And now that it's 2025, this time Judge Oldham's got the panel opinion. So click here for an extremely thorough history of the church-autonomy doctrine, from before the Norman Conquest to the present day. The upshot? It's basically "church autonomy immunity," and, sorry, executive director, we're not going to decide whether your leadership was sufficiently Christ-like. Dissent: Aren't we missing both a church and a doctrinal dispute?As some of the hippest shoppers around, Short Circuit readers are undoubtedly familiar with the trendy bags & accessories available at Trader Joe's. They may also be familiar with the Trader Joe's union. But they may not be aware that the union also sells trendy items with a logo that looks similar to its collective-bargaining partner's. Trademark violation? District court: No, plus no injunction due to the Norris-LaGuardia Act. Ninth Circuit: Seems perhaps confusing to us and after remand an injunction might be OK if the facts show this ain't a "labor dispute."Making a domestic violence call, North Las Vegas, Nev. officers see a man flee out the back. They scurry around the neighborhood but can't find him. At least 18 minutes later one officer with his K-9 "Storm" ignores a "Beware of Dog" sign and jumps a wall to see if the suspect's in a nearby backyard. Non-law-enforcement canines "Shadow" and "Whitewall" greet them in a most unfriendly manner. Defending Storm, officer shoots and kills both dogs. The fleeing suspect is never found. Ninth Circuit: No QI for jumping the wall but QI for shooting the dogs (though the dog owners might get those damages through the jumping-the-wall claim anyway).Artist posts sketches of characters to a website dedicated to crime and scandal in Victorian London. One is an occult-obsessed magical-witch-doctor-feminist-assassin who wears matching jackets and skirts. Another is an African explorer/clairvoyant P.I. with a lost half-sister. Artist also suggests actors for the characters, including Eva Green for the assassin. Three years later Showtime releases Penny Dreadful, a show that includes . . . a witch with supernatural abilities (played by Eva Green) and an African explorer whom she helps look for his lost sister. Copyright violation? Ninth Circuit: Victorian London was simply crawling with swells like this, so any similarity is purely coincidental.Should California's new law designed to protect minors from "addictive" social media be preliminarily enjoined? Ninth Circuit: Mostly not, but the prohibition on showing minors the number of "likes" or other feedback on a post goes too far.Motion-capture technology company sues Disney, alleging that Disney misused the company's technology in the 2017 live-action remake of "Beauty and the Beast." A jury finds Disney liable for $600k, but the trial court grants the Mouse judgment as a matter of law. If you'd like to read the Ninth Circuit opinion reversing that decision, well . . . be our guest.More American Indian legal drama out of Oklahoma! In a vehicular-manslaughter prosecution, gov't had to prove defendant was an Indian to have federal jurisdiction. Defendant testified he was a tribal citizen, and he had also asserted that in state court to get out of related civil lawsuit. Tenth Circuit: Be that as it may, the gov't had to prove he was an Indian at the time of the crime, and the only evidence specifically bearing on timing was inadmissible hearsay. Conviction vacated.You know that trope in movies where someone is talking at a noisy party and the music stops and everyone hears them loudly say something really awkward? Well, this renowned dentist and avid big-game hunter had, like, the worst one of those ever. Tenth Circuit: And his conviction for murdering his wife while on safari in Zambia is affirmed.Do New Mexico's disclosure requirements for electioneering communications violate the First Amendment? Tenth Circuit: No. Concurrence: But I wish I could say they did. Dissent: They do.Alabama man pleads guilty to a state Class D felony and receives a 24-month suspended sentence and is placed on probation for two years. Six months after completing his sentence, he's found with a gun. He is charged and convicted under the federal felon-in-possession statute. Eleventh Circuit: Twist! Despite being ubiquitously called the "felon-in-possession" statute, the word "felon" doesn't appear in the law. Instead, it applies only to people convicted of crimes punishable by more than a year in prison. And under Alabama law this guy could not have received a sentence of more than a year in prison. He may be a felon, but he's free to go.Transgender Georgia sheriff's deputy seeks male-to-female sex-change surgery, but the procedures are excluded under the office's insurance policy. The deputy sues under Title VII for sex discrimination. But which Supreme Court precedent controls: Bostock or Skrmetti? Eleventh Circuit (en banc): Skrmetti. Concurrence: Skrmetti, but Bostock has its place. Concurrence 2: Skrmetti, regretfully. Dissents x3: Bostock.

Law students! Consider joining us at one of IJ's upcoming Legal Intensives, where you'll take part in interactive sessions on constitutional and public-interest law led by IJ attorneys. These programs are designed to help you build practical skills, learn effective strategies, and connect with like-minded peers and practitioners. On November 14–15 in Nashville, Tenn., the Intensive will focus on Economic Liberty, with sessions highlighting the fight to protect home-based businesses and food freedom. Then, on January 23–24 in Arlington, Va., we'll turn to the Fourth Amendment, exploring current cases and practical strategies for future litigators. Apply now! All travel fees covered by IJ for accepted students.

 

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[Eugene Volokh] "The Danger of Social Media": "It Allows People to Publish Their Internal Monologues"

["Can civilization survive now that we have been made witness to the interior lives of others?"]

I much appreciated John Podhoretz's comments on this, and I thought I'd pass them along in their entirety (without the Twitter breaks). Social media has in one way fulfilled the promise of free speech, by making speech cheaper, easier, and more frictionless than ever before. But some friction can be good, and we might be missing it about now. From Podhoretz:

Here's the danger of social media. It allows people to publish their internal monologues.

Our internal monologues and fantasies are often incredibly ugly. People go to therapists because they feel so guilty about them, and one of the tasks of a therapist is to explain that thoughts are not actions. You can rage in your thoughts about your brother, or someone at work, even fantasize about them dying—but you have done nothing and are guilty of nothing, and you need to forgive yourself and learn how to calm yourself down.

This is, I imagine, what Catholic confession is for, though you are, I gather, obliged to do penance for your evil thoughts. But remember—they are still inside you. They are between you and you.

Since 2007, people have a means of externalizing that interior monologue and this means something. A researcher at MIT saying, rather than thinking, "I really want to see that video of Charlie Kirk dying again because it works better than my anti-depressant" has become a public act. [I'm not sure whether this is a reference to a specific post, or just a concrete hypothetical standing in for posts of this sort. -EV] I see it. I am affected by it. The public discourse is too.

My sense of how the world works and what people are really like undergoes a change. I become rageful, and believe people who think this way are evil. It's likely they are not. They just have a means of externalizing the parts of them that no one ever saw.

But another human tendency, the tendency to extrapolate from individual samples to the whole, kicks in then as well. I will assume that anyone and everyone like that MIT researcher is an enemy of everything good and is unsalvageable. In that way my world shrinks.

The part of him that dehumanizes Charlie Kirk and turns his assassination into a joke then threatens to dehumanize me in a way. And seriously, before social media, I would never even know he existed, or that he thought what he thought, and that was better for him and me.

"Use every man after his desert," Hamlet says, "and who should 'scape whipping?" Meaning: if the world knew what was going on inside us, we would all be punished viscerally for it. Until 2007, for the most part, the world would not, could not, know.

The question is, and I mean this literally: Can civilization survive now that we have been made witness to the interior lives of others?

Remember the Seinfeld episode where Jerry and George decide they are going to share their deepest, darkest secrets? George goes first. We don't hear his monologue. We only see Jerry's face when he's done. And he is frozen in horror. And George is his best friend.

Thanks to Ed Driscoll at InstaPundit for the pointer.

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[Eugene Volokh] No Pseudonymity for Plaintiffs Challenging Government's Cancellation of DEI Jobs

From Chief Judge James Boasberg (D.D.C.) yesterday in Doe v. Rollins:

Plaintiffs … worked at the Department of Agriculture in jobs related to diversity, equity, and inclusion…. On the first day of his new Administration, Trump issued an executive order that denounced federal DEI programs as "shameful discrimination," charged them with "immense public waste," and directed federal agencies to end them. Days later, Plaintiffs were placed on administrative leave. The Office of Personnel Management then issued guidance that, Plaintiffs allege, shows that they would soon be fired and would be allowed to apply for reassignment only to other DEI-focused jobs—which, thanks to the recent Executive Order, no longer existed.

Plaintiffs are challenging their placement on leave and OPM's guidance as violations of the Administrative Procedure Act and the First and Fifth Amendments. And they have moved to bring that challenge under pseudonyms. For the reasons below, the Court will deny their Motion to proceed pseudonymously….

Generally, a complaint must identify the plaintiffs. See Fed. R. Civ. P. 10(a); [D.D.C. Local Civil Rule] 5.1(c)(1), 11.1. That requirement reflects the "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' and, more specifically, from the tradition of open judicial proceedings." A party moving to proceed pseudonymously thus "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." As a result, the court must "'balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure'" … Plaintiffs have not met their burden to show that their privacy interests outweigh the public's presumptive and substantial interest in learning their identities.

Start with whether this case concerns "a matter of a sensitive and highly personal nature." Plaintiffs argue that it does because they fear that being outed as having worked on DEI programs will damage their professional prospects.

True, this factor favors pseudonymity when plaintiffs show that being publicly identified would inflict serious and substantiated professional damage. For instance, it favored pseudonymity for a doctor who was accused of misconduct that, if disclosed, would have prevented her from practicing. [Citing to other D.D.C. cases here and later in the paragraph. -EV] Ditto for someone who worked in national security and was accused of being a terrorist and a traitor. But when identification poses only an unsubstantiated or speculative professional risk, this factor cuts against pseudonymity. [Many other courts generally refuse to allow pseudonymity merely to protect against professional, economic, or reputational harm, see pp. 1457-60 of The Law of Pseudonymous Litigation, in part because the risk of such harm is present in so many cases; but D.D.C. district court cases are indeed more split on that. -EV]

Plaintiffs' arguments fall on the wrong side of the line. They point out that the President has inveighed against DEI programs as "dangerous, immoral, and illegal" and that the Administration is seeking to purge the federal government of employees who worked on them. But if they fear what would happen if the government discovered that they had worked on DEI, pseudonymity will not help. Their Complaint alleges that their employers already know that they had worked on DEI programs and so have already exiled them to administrative leave.

If Plaintiffs instead worry that other employers will refuse to hire anyone bearing the stigma of a DEI-related job, they offer no support for that speculation…. In the end, Plaintiffs are seeking to distance themselves from ordinary job titles. That is information people usually include in their resumes or broadcast on LinkedIn, not a "matter of a sensitive and highly personal nature." …

Now consider "whether identification poses a risk of retaliatory physical or mental harm." Plaintiffs assert that the answer is yes, but they do not offer much explanation. If it is because the Administration has denounced DEI programs as discriminatory, the Motion never connects that fact to a substantiated risk that disclosing Plaintiffs' identities would expose them to physical or mental harm….

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[Eugene Volokh] Firing Public Employees Who Publicly Praise Violent Criminal Attacks

Some have been calling for the firing of people who publicly praised the murder of Charlie Kirk, or at least who argued that the murder was justified or defensible. I'm not wild about such calls; I think we generally need less cancel culture, not more, even as to people who say morally repugnant things. (Among other things, these calls for firing tend to spiral, to cover a wide range of other speech beyond the outrageous statements that first led to them.) But here let me focus not on the ethical or pragmatic question, but the legal one: If a government employer fires an employee for such speech, would that violate the employee's First Amendment rights?

[1.] Praising violence doesn't generally fall into any existing First Amendment exception, so that means it's protected against the government as sovereign—against criminal punishment, civil liability, and the like. The "incitement" exception is limited to speech that is intended to and likely to cause imminent illegal conduct. Praise of a past murder wouldn't qualify: Even if such praise may have a long-term tendency to influence people in the future to do bad things, the Court has rejected this "bad tendency" test for punishing speech.

Intentionally soliciting a criminal attack on a particular person may potentially be punishable as "solicitation" of crime, under U.S. v. Williams (2008) and U.S. v. Hansen  (2023). But that certainly wouldn't apply to mere praise or justification of an attack that had already happened. (Just when it would apply to general advocacy of a future attack is a complex and unsettled question.) For more on these rules, see this post on the Graham Linehan controversy.

[2.] Of course, here the government is acting as employer, and in that capacity it has more latitude to discipline and fire employees than it does to imprison or fine them. Generally speaking, the government may discipline an employee based on the employee's speech if

the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), orthe speech is not on a matter of public concern, Connick v. Myers (1983), orthe damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968).

There is no categorical exception even as to government employment for speech that praises violence; indeed, Rankin v. McPherson (1987) held that the First Amendment was violated by the firing of a law enforcement clerical employee for saying, after President Reagan was wounded, "if they go for him again, I hope they get him":

[The statement] plainly dealt with a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President's administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. While a statement that amounted to a threat to kill the President would not be protected by the First Amendment, the District Court concluded, and we agree, that McPherson's statement did not amount to a [punishable] threat … or, indeed, that could properly be criminalized at all.

The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. "[D]ebate on public issues should be uninhibited, robust, and wide-open, and … may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." "Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected."

[3.] But Rankin stressed that the speech actually didn't create much upset or disruption for the office, whether because of an internal reaction or an external one. To quote the concurrence by Justice Powell,

There is no dispute that McPherson's comment was made during a private conversation with a co-worker who happened also to be her boyfriend. She had no intention or expectation that it would be overheard or acted on by others…. The risk that a single, offhand comment directed to only one other worker will lower morale, disrupt the work force, or otherwise undermine the mission of the office borders on the fanciful.

The majority likewise reasoned,

Interference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function; avoiding such interference can be a strong state interest…. [But w]hile McPherson's statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office…. Constable Rankin testified that the possibility of interference with the functions of the Constable's office had not been a consideration in his discharge of respondent and that he did not even inquire whether the remark had disrupted the work of the office.

Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson's speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson's statement.

Nor is there any evidence that employees other than [her boyfriend] who worked in the room even heard the remark. Not only was McPherson's discharge unrelated to the functioning of the office, it was not based on any assessment by the Constable that the remark demonstrated a character trait that made respondent unfit to perform her work.

And indeed, if one looks at later lower court cases, they have routinely turned on whether the speech created enough public controversy. When the government is administering the criminal law or civil liability, such a "heckler's veto" is generally not allowed: The government generally can't shut down a speaker, for instance, because his listeners are getting offended or even threatening violence because they're offended. But in the employment context, the Pickering balance often allows government to fire employees because their speech sufficiently offends coworkers or members of the public. (The analysis may differ for public university professors, though it's not clear how much; see this post for more.)

This conclusion by lower courts applying Pickering might, I think, stem from the judgment that employees are hired to do a particular job cost-effectively for the government: If their speech so offends others (especially clients or coworkers) that keeping the employees on means more cost for the government than benefit, the government needn't continue to pay them for what has proved to be a bad bargain. Maybe that's mistaken. Maybe it's so important to protect public debate, including on highly controversial matters, that public employers should have to keep on even the most controversial employees (see this article by Prof. Randy Kozel, which so suggests in part). But that appears to be the rule.

We see this, for instance, with statements that are allegedly racist, sexist, antigay, antitrans, etc.: If they cause enough public hostility, or seem highly likely to do so, then courts will often allow employees to be fired based on them. But if they largely pass unnoticed except by management and perhaps just a few people who file complaints, then courts are much more likely to hold that the firings may violate the First Amendment (see, e.g., this post and this post, though there are many other such examples).

There are other factors that courts consider, to be sure: For instance, if the employer can show that a person's speech shows they are unsuited to the job, that makes it easier for the employer to prevail. But even there the magnitude of public reaction is relevant, because one common argument is that one trait required for certain employees is the ability and willingness to instill confidence and respect in coworkers and clients, rather than to produce outrage and hostility.

And while some have tried to distinguish, say, racist speech from other speech on the grounds that it shows the speaker is likely to unfairly treat clients or coworkers who belong the groups he condemns, one can say that about many kinds of speech: Speech praising the killing of people who publicly advocate for certain views may be said to show the speaker is likely to unfairly treat members of the groups. (Such unfair treatment may often be illegal, especially by public employees, but in any event will often be unethical and contrary to the employer's mission.) As a result, the magnitude of the public reaction, which is often measurable rather than speculative, ends up playing a major role.

This creates an unfortunate incentive: Like any heckler's-veto-like rule, it rewards would-be cancellers, if they only speak out often enough and with enough outrage. But rightly or wrongly, that is how these cases generally shape up.

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[Eugene Volokh] Hospital Fired Employee for On-the-Job Sex: She Claimed It Was Rape but Other Person Said It Was BDSM

[The employee sued, claiming the firing was retaliation; the jury found for the hospital, and the Sixth Circuit upheld the verdict (among other things upholding the admission of evidence of the employee's interest in BDSM).]

In Graf v. Morristown-Hamblen Hospital Ass'n, decided Wednesday by Sixth Circuit Judge Karen Nelson Moore, joined by Judges Richard Griffin and John Nalbandian, Graf—a nursing assistant technician—said that Ogle, a security guard, "had raped her" "during a lunch break and on hospital grounds." The hospital "determined that the sexual interaction between Graf and Ogle had been consensual," and fired "Graf on the grounds that she had violated hospital policy by having intercourse while on the clock and in an unauthorized area." (Ogle was also fired.)

Graf sued, claiming she was retaliated against for having brought the complaint, but the jury "returned a verdict in favor of MHHA on all counts." The court affirmed; here is an excerpt of the facts:

Records obtained during the discovery process indicate that Graf and Ogle began texting on June 19, 2021. The two exchanged hundreds of texts over the course of the next several months. According to Graf, the two were "work friends, and that was it."

But according to Ogle, although the relationship started off friendly, the two began discussing that they "were both part of the BDSM world" and having intimate, sexual conversations. Graf admitted to having discussions with Ogle about various topics, including her past abusive relationships and intimate sexual matters, but stated that Ogle always initiated sexual conversations and that they never discussed having relations with each other. The two also met "on a regular basis" during their breaks, meeting in a "numerous amount of spots" including stairwells around the hospital.

One day in June 2021, Ogle texted Graf and asked her to meet him for lunch. Graf agreed to meet, and Ogle guided her to the security office—a location that was on the hospital's campus but where Graf was not authorized to be—via text messages. Graf did not clock out, because she was not required to do so during breaks, and she had a coworker cover her during the break.

Once in the security office, Graf and Ogle began talking about work and their days. What occurred next is heavily contested, but Graf alleges that Ogle trapped her legs with his, handcuffed her, raped her, and forced her to perform oral sex on him. Ogle, by contrast, contends that the encounter was a consensual sexual encounter involving role-play that the two had discussed ahead of time. Graf contends, and Ogle did not deny, that she said "no" and "stop" several times during the encounter. But Ogle stated that the two had discussed safe words prior to the encounter, that that their agreed-upon safe word was not "no" or "stop."

According to Graf, following the encounter, she immediately went to the bathroom and cried, after which she returned to her shift. She did not, on that day, tell anyone about the encounter, including family and friends, the hospital's HR department, or law enforcement.

In the weeks following the encounter, Graf and Ogle continued to text each other frequently. Per Graf's telling, Ogle initiated all of the contact and was "very demanding," asking for explicit pictures and videos of her. Graf complied, contending that she "did not want to" but "was scared" and wanted "to appease [Ogle] and keep calm and save [her] job and not be assaulted again." For his part, Ogle contends that the two sent explicit pictures and videos "back and forth as playful banter to each other as either teasing or showing something off." And Ogle alleges that he and Graf continued to meet in person after the alleged rape.

On October 29, 2021, Graf was having a conversation with Sutton—Ogle's supervisor and her work friend—when Sutton informed her that the hospital was investigating Ogle following a complaint of sexual harassment by another MHHA employee. Graf then told Sutton that Ogle had raped her. Although Graf initially wanted her complaint to be anonymous, she ultimately agreed to tell Sutton's supervisors, Lieutenant Ray Lacy and Captain Jeff Ingram, about the assault. The next day, after meeting with Lacy and Ingram, Graf submitted a written statement detailing her recollection of the events and emphasized that the encounter was nonconsensual.

That same day, Lacy and Ingram met with Ogle about the complaints against him. Ogle admitted to having sex with Graf, as well as having sexual encounters with other nursing staff. Lacy and Ingram immediately collected Ogle's duty gear, relieved him from his shift, and terminated him that day.

Following Ogle's termination, SBSI [the security guard company that employed the security guards, and that contracted with the hospital] authored a report detailing its investigation of Graf's complaint. That report included findings of fact that Graf had entered the security office "through the side door in the boiler room to prevent being seen by any cameras"; that, although Graf had stated that Ogle raped her, Ogle "admitted to having consensual sex with Graf inside the Security Office and assured [his supervisors] the sex was not forced"; and that Ogle had informed Ingram and Lacy "that he was in possession of videos and pictures of him and Graf exposing themselves," which "were sent between both Graf and Officer Ogle." SBSI concluded, based upon their investigation, that "[t]here were no laws violated in this case," i.e., that Ogle did not sexually assault Graf.

The hospital appears to have agreed with SBSI's investigation, and fired Graf as a result. There's a lot going on in the opinion, but here are some excerpts from the legal analysis:

To establish a prima facie retaliation claim under Title VII, a plaintiff "must demonstrate that: '(1) he engaged in activity protected by Title VII; (2) his exercise of such protected activity was known by the defendant; (3) thereafter, the defendant took an action that was 'materially adverse' to the plaintiff; and (4) a causal connection existed between the protected activity and the materially adverse action.'" … Graf's retaliation claim is premised upon her claim that she engaged in Title VII-protected activity when she complained to Ogle's supervisors that Ogle had raped her….

[T]o prove that they engaged in protected conduct, a retaliation claimant must demonstrate "that the opposition [was] based on 'a reasonable and good faith belief that the opposed practices were unlawful.'" … A retaliation claimant therefore "does not need to oppose actual violations of Title VII in order to be protected from retaliation." …

In alleging that MHHA retaliated against her for opposing sexual assault, Graf can succeed on her retaliation claim even if Ogle's conduct was not, as a legal or factual matter, sexual assault. But Graf must prove that she had a reasonable and good-faith belief that the conduct of which she complained was unlawful under Title VII. In other words, she must show that her belief that she was raped was reasonable and in good faith.

Our reasoning in [a recent case] is illustrative of the distinction between these two notions. There, we reviewed, on summary judgment, whether there was a genuine issue of material fact as to the plaintiff's alleged sexual harassment by his coworker while working on an oil rig. We concluded that the conduct of which the plaintiff had complained was not sexual harassment because he had failed to provide any evidence that he was harassed due to his gender. But we concluded that the plaintiff's claim nevertheless survived summary judgment because he had "suffered unwanted sexual touching and communication in the workplace on multiple occasions" and therefore "could have reasonably believed he was sexually harassed." …

Here, then, Graf did not need to prove to the jury that the conduct she reported to Ogle's supervisor, and eventually to an HR representative, was, as a legal matter, a rape. But Graf was required to demonstrate her reasonable and good-faith belief that Ogle's conduct violated Title VII. And MHHA was entitled to introduce evidence rebutting Graf's alleged good-faith belief in the purported violative conduct she had reported, including evidence that Graf had consented to the sexual encounter, because such evidence was directly relevant to the reasonableness of Graf's belief in whether Title VII prohibits that conduct.

Graf resists this conclusion by arguing that "there is no need to determine whether there was a good faith belief when a report of rape is so obviously a practice that is violative of Title VII." But our inquiry is not whether a rape violates Title VII (it does)—our inquiry is whether Graf had a good-faith belief that Ogle raped her at work. Therefore, although we need not determine whether Ogle raped Graf, we must consider whether Graf "held an objectively reasonable and good faith belief" that she reported a legitimate rape….

The district court thus did not err in concluding that, in proving her retaliation claim to a jury, Graf was required to demonstrate that she reasonably and in good faith believed that, when she made her complaint against Ogle, she was reporting a rape. "Whether she actually held such a belief, a question of credibility," was necessarily "left to [the] jury." …

The court also concluded that the district court did not "abuse[] its discretion in admitting evidence of her sexual history and predisposition":

Federal Rule of Evidence 412 prohibits the admission of two types of evidence in cases involving sexual misconduct: "(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition." The second category, however, is subject to the exception, applicable only in civil cases, that "the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." And "[t]he court may admit evidence of a victim's reputation only if the victim has placed it in controversy." The rationale behind this rule "is that evidence of a rape victim's prior sexual activity is of dubious probative value and relevance and is highly embarrassing and prejudicial." …

[Fed. R. Evid. 412] prohibits the admission of "evidence offered to prove that a victim engaged in other sexual behavior" in a proceeding "involving alleged sexual misconduct." Here, MHHA sought to introduce evidence of Graf's sexual communications with Ogle in order to demonstrate that she had consented to the sexual encounter. The contested evidence was not introduced to prove that Graf engaged in other sexual behavior; instead, MHHA sought to introduce that evidence for the limited purpose of demonstrating that Graf consented to the sexual encounter at the center of her retaliation claim, i.e., the alleged rape….

In addition, Graf argues that the district court erred in admitting evidence of her sexual behavior outside of her interactions with Ogle pursuant to the exception to Rule 412 for civil cases. See Fed. R. Evid. 412(b)(2) ("In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy."). According to Graf, the district court abused its discretion in allowing the introduction of evidence of her sexual behavior and predisposition outside of her interactions with Ogle because the probative value of such evidence did not substantially outweigh the risk of harm to Graf. And Graf argues that any evidence as to her reputation for sexual behavior was inadmissible because she did not place her reputation in controversy….

[But the] evidence related to Graf's discussion of the BDSM lifestyle and her general sexual preferences with Ogle … was not offered to show Graf's reputation for sexual behavior; instead, it was offered in the limited context of demonstrating Graf's consent to the encounter with Ogle. Because evidence of Graf's sexual preferences was introduced for the non-propensity purpose of demonstrating her consent to the alleged encounter, not her reputation for sexual behavior, Rule 412(b)(2) did not apply. {If this evidence had been introduced for the purpose of proving Graf's reputation for sexually promiscuous behavior or the like, however, it would have been inadmissible because Graf did not place her reputation in controversy.} …

[T]he district court allowed evidence of Graf's sexual behavior with only Ogle, barring any evidence of her discussions about her sexual behavior with others. Additionally, the evidence of Graf's sexual behavior that was admitted—evidence of her involvement in the BDSM lifestyle—was not offered to prove that she engaged in other sexual activity, but to show that she consented to the sexual assault of which she had complained. Once again, then, this evidence fell outside the ambit of Rule 412….

Jay W. Mader and Paul E. Wehmeier (Arnett, Baker, Draper & Hagood, LLP) represent the hospital.

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[Sarah McLaughlin] "Authoritarians in the Academy": The Present, and Future, of Authoritarian Censorship on Campus

My book Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech was in its final edits and in the post-writing stage when Donald Trump was inaugurated into office for a second time. If I were still writing it today, I would need to dedicate new chapters to detailing another malignant censorship threat on American campuses: not the impositions by foreign powers, but the conduct of our own federal government.

In a post earlier this week I cited some of the illiberal and, in some cases, unconstitutional incursions by the Trump administration onto the First Amendment in the past few months. Some of the most disturbing violations, though, have targeted our institutions of higher education.

One of the most high-profile attacks has come in the form of the broadside against Harvard University. Thanks to Harvard's willingness to stand up for itself, however, this campaign against universities, despite widespread pusillanimity on the part of campus leaders, is finally starting to show some cracks.

Earlier this month, a Massachusetts federal district court found that the Trump administration violated Harvard's First Amendment rights, and Title VI of the Civil Rights Act, when it revoked billions in funding in a transparent effort to punish the university for its, and its community members', political views under the guise of combatting antisemitism. The government does not receive a dispensation to use unlawful means simply because it says it does so in the name of fighting antisemitism or other discrimination on campus.

As the Foundation for Individual Rights and Expression (FIRE), where I work, warned in an amicus brief filed in the case in June, the "federal government's coercion of Harvard violates longstanding First Amendment principles and will destroy universities nationwide if left unchecked." FIRE's brief explained that the federal government must provide the required legal processes and procedures laid out under Title VI, which it failed to do so here and, under the First Amendment, government officials cannot dictate to private actors their decisionmaking on speech.

The pressure that financial rewards or punishments put on universities is immense and, as I write in Authoritarians in the Academy, is one of the reasons why oppressive regimes abroad have been able to gain a foothold in U.S. higher education. Similar underlying pressure is at work here domestically—the closing off of critical funding as a means to punish universities that do not align with the government's political preferences.

But the threat to campus free expression has not just been limited to the money disbursed by the federal government. In its campaign to punish international students, this administration has found a way to both target students whose views the government disfavors (with a clear focus toward critics of the Israeli government and the immigrants who allegedly hold "anti-American" beliefs) and chip away at a major funding source for politically noncompliant universities who rely on these students' tuition dollars.

In this effort, Harvard was once again a primary target. On May 22, Homeland Security Secretary Kristi Noem warned Harvard that she was taking away the university's Student and Exchange Visitor Program certification, meaning it could not enroll current or future international students. She specifically cited her intent to "root out the evils of anti-Americanism and antisemitism" in higher education. Disturbingly, she also demanded years worth of records of "any protest activity" by international students. As I explained earlier this year at The Los Angeles Times, threatening to cut off a university's access to international students to punish political transgressions is not a novel tactic. In fact, it's one that's been used before—by Beijing.

The targets with the most to lose in this crusade have not even been the universities, but the international students themselves. These students, many of whom are traveling to the U.S. from significantly less free countries, expect to finally be able to speak their mind for the first time when they arrive on American shores. Instead, they now have to ask themselves if expressing themselves, whether in class or on social media, is worth the risk of being the next shackled passenger in an unmarked ICE van.

That's why FIRE took Secretary of State Marco Rubio to court last month, contesting the statutory provisions the Trump administration is relying on to target lawfully present noncitizens for deportation over their protected speech.

The suit, representing plaintiffs including Stanford University's independent student newspaper, challenges two provisions of the Immigration and Nationality Act that Rubio has employed to unconstitutionally punish international students for their speech. The first provision allows Rubio to initiate deportation proceedings against noncitizens for protected speech if he "personally determines" the speech "compromises a compelling foreign policy interest." If that sounds wildly broad and subjective to you, that's because it is. The second provision enables him to revoke the visa of noncitizens "at any time" for any reason.

One of the reasons why I first decided to write Authoritarians in the Academy is that I have long been troubled by the outside influences limiting international students' ability to express themselves in the U.S., even with the First Amendment protecting them. So to see the federal government position itself as another threat to these students' speech rights, rather than a force they can turn to for protection, has been deeply dispiriting.

Academic freedom and free expression are currently in grave danger in the U.S. To right this ship and preserve the possibility of a freer future for higher education, more universities are going to need to find their spines and defend themselves. You will not win battles you are unwilling to fight.

As we look forward, we must also consider the ways that outside threats will continue to influence higher education. Universities still look to unfree nations for funding and partnerships and, given the cuts they are facing domestically and the general decline of freedom abroad, that is unlikely to change any time soon. Indeed, we may even see authoritarian nations like Saudi Arabia become bigger participants in the global higher education sphere.

In the closing chapter of my book, I detail ways that higher education can adjust to better protect itself and its community members in an unfree world. This was always going to require some sacrifice and suffering on the part of universities, but this is even more so the case now, as the conditions on the ground here in the U.S. continue to complicate matters.

Universities have long promised that their values—academic freedom, free expression, and institutional autonomy—are sacred and prized above all else. Now, more than ever, is the time for them to prove it.

 

 

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[Josh Blackman] Today in Supreme Court History: September 12, 1958

9/12/1958: Cooper v. Aaron is decided.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Ilya Somin] Assessing the Extent of Political Violence in America

[Cato Institute scholar has a great overview of the data on how much political violence there is, and who perpetrates it. It is less prevalent than many think, and right-wing political violence is more common than the left-wing kind.]

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The awful murder of conservative activist Charlie Kirk has stimulated interest in the nature and extent of political violence in the United States. We do not yet know the identity and motive of the killer; but there is at least a substantial likelihood the motive was political in nature. My Cato Institute colleague Alex Nowrasteh has a great overview of the available data on political violence since 1975. He finds that the overall incidence of such violence is much lower than many assume. The 9/11 attacks dominate the stats, accounting for 83% of total deaths. Setting that aside, right-wing violence is significantly more prevalent than the left-wing variety.

It should, perhaps, go without saying. But I condemn the murder of Charlie Kirk without reservation. It is utterly indefensible, and I hope the killer is caught and severely punished. I was no fan of Kirk and his ideology. His organization, TPUSA, even once put me on its "Professor Watchlist" (they apparently removed me from the list a few months later, without explanation). But no one should be attacked or killed for their political beliefs. The murder is all the more tragic in light of the fact that Kirk left behind a wife and two small children. They did nothing to deserve this.

Now for Alex's summary of the data on violence:

A total of 3,599 people have been murdered in politically motivated terrorist attacks in the United States from January 1, 1975, through September 10, 2025. Murders committed in terrorist attacks account for about 0.35 percent of all murders since 1975. Only 81 happened since 2020, accounting for 0.07 percent of all murders during that time, or 7 out of 10,000. Terrorism is the broadest reasonable definition of a politically motivated murder because it is the threatened or actual use of illegal force and violence by a nonstate actor to attain a political, economic, religious, or social goal through coercion, fear, or intimidation….

Eighty-three percent of those murdered since 1975 were committed by the 9/11 terrorists…. The Oklahoma City Bombing accounts for about another 5 percent. Those murdered since 2020 account for just 2 percent. Terrorists inspired by Islamist ideology are responsible for 87 of those murdered in attacks on US soil since 1975…. Right-wingers are the second most common motivating ideology, accounting for 391 murders and 11 percent of the total. The definition here of right-wing terrorists includes those motivated by white supremacy, anti-abortion beliefs, involuntary celibacy (incels), and other right-wing ideologies.

Left-wing terrorists murdered 65 people, or about 2 percent of the total. Left-wing terrorists include those motivated by black nationalism, anti-police sentiment, communism, socialism, animal rights, environmentalism, anti-white ideologies, and other left-wing ideologies. Those murders that are politically motivated by unknown or other ideologies are a vanishingly small percentage, which is unsurprising because terrorists typically want attention for their causes.

"Right" and "left" are somewhat arbitrary and incoherent categories. Thus, people can argue about some of Alex's coding choices here. For example, I am not sure black nationalists really qualify as "left" and incels as "right." Nonetheless, the coding here mostly tracks the way these terms are generally used in current US political discourse. Thus, Alex is right to conclude that right-wing violence is more prevalent than the left-wing kind, even though one can quarrel with the classification of a few specific perpetrators at the margin.

Given the outsize weight of the 9/11 attacks in the data, partisans will be tempted to categorize radical Islamists with their political opponents. Thus, left-wingers might argue that Islamists are on the right, due to their extreme social conservatism (they hate LGBT people, want women to be subordinated to men, and so on). On the other hand, one could also argue that they are actually left-wing, due to their hatred of Israel and opposition to American influence in the world. These latter attitudes are more prevalent on the far left, though there are elements of them on the nationalist/MAGA right, as well. In my view, al Qaeda and its ilk don't really fit on the US right-left political spectrum, and thus Alex is right to group radical Islamists in a separate category from either.

Regardless of the source, it is reassuring that political violence is relatively rare. The average American is vastly more likely to die in a car accident than be a victim of politically motivated murder. And, as Alex notes, such attacks account for only a tiny percentage of all murders. Prominent political figures are probably more at risk. Nonetheless, the overall level of danger is low, even for most of them.

For understandable reasons, Alex's data does not include death threats, which are surely far more common than actual murders or attempts. While the vast majority of such threats aren't acted on, they still cause pain and fear to those they target. I have reason to know, having gotten several myself, over the years, including one that turned out to be from "mail bomber" Cesar Sayoc. Better-known activists and political commentators likely get a lot more than I do. The increasing prevalence of social media and other forms of electronic communication have, I suspect, made such threats more common.

I am not aware of any good data on the relative prevalence of death threats by ideology (as opposed to actual attacks). But I suspect that right-wing ones are more common here, as well.

One person's experience isn't necessarily indicative. But over twenty years of libertarian commentary on law and public policy issues, I have said many things that annoy people on both right and left. With one arguable exception (a Russian nationalist angered by my condemnations of Vladimir Putin's regime), every single one of the threats I have gotten was from right-wingers, mostly related to the issue of immigration. By contrast, I have never gotten threats for things like criticizing affirmative action, condemning socialism, opposing "defunding the police," or attacking student loan forgiveness. Some of these have generated other types of online nastiness. But never any threats of violence.

As already noted, more systematic data is needed here. Perhaps my experience will turn out to be atypical.

I don't see any ready solution to the problem of politically motivated death threats. Given how easy they are to make, it is probably unrealistic to expect the authorities to track down more than a small fraction of them. Social media firms may be doing a better job of combating them then a few years ago. But that, too, is difficult. All I can say is that we should condemn them, and avoid being intimidated by them.

As for actual political violence, it is good that it remains relatively rare. But we should be wary of the danger that it might become worse.

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[Eugene Volokh] California Public Charter Schools' Independent Study Programs Can Insist on Secular Curricular Materials

["The Supreme Court has recently confirmed that the Free Exercise Clause does not prohibit a state from providing 'a strictly secular education in its public schools'"—and, the court held, that extends to California charter schools and their parental "home-based direct instruction approved by the school and coordinated, evaluated, and supervised by state-certified teachers."]

From today's decision in Woolard v. Thurmond, written by Judge Andrew Hurwitz and joined by Judges Eric Miller, and Jennifer Sung:

California provides free public education through its common schools. It long did so through brick-and-mortar schools owned and operated by public school districts. In 1992, California authorized the establishment of charter schools, "public schools funded with public money but run by private individuals or entities rather than traditional public school districts."

Like traditional public schools, charter schools can provide non-classroom-based instruction, including "independent study" programs, in which parents provide home-based direct instruction approved by the school and coordinated, evaluated, and supervised by state-certified teachers. To participate in these programs, parents must enter into a contract with the school specifying the objectives, methods of study, and methods used for evaluating student work. The school is then required to provide appropriate materials and services necessary to achieve the agreement's objectives.

The plaintiffs in this 42 U.S.C. § 1983 action are parents and guardians of students enrolled in independent study programs at two California charter schools who requested that the schools purchase and permit the use of sectarian curricular materials for instruction in the programs. The schools rejected those requests because California law provides that "sectarian or denominational doctrine" shall not "be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State," and that "a charter school shall be nonsectarian in its programs."

The court rejected the plaintiffs' Free Exercise Clause challenge:

The Supreme Court has recently confirmed that the Free Exercise Clause does not prohibit a state from providing "a strictly secular education in its public schools." Carson v. Makin (2022). Plaintiffs do not dispute this foundational principle but argue that the charter schools' independent study programs are in substance private homeschooling, not public education. Plaintiffs then assert that because California could not exclude potential recipients of state grants for private homeschooling based on religious belief, it cannot refuse to honor their requests for funding of sectarian instruction….

We begin with an overview of the legal structure of the California charter school system. As a matter of California law, "charter schools are part of California's single, statewide public school system." Although the defendant charter schools are not operated by public school districts, they are overseen by public "chartering authorities" (school district governing boards) that "approve charters, supervise charter school operations, and revoke charters in the event particular standards and conditions [a]re not met." Like other California public schools, charter schools cannot charge tuition; "cannot discriminate against students on the basis of ethnicity, national origin, gender or disability"; "must meet statewide standards and conduct pupil assessments applicable to pupils in noncharter public schools"; must provide instruction meeting the same statewide standards as other California public schools; and must hire state-certified teachers. And charter schools are "eligible equally with other public schools for a share of state and local education funding." …

[N]ot all government decisions that engender religious objections impose burdens on religion that fall afoul of the Free Exercise Clause. As the Supreme Court made clear in Carson, a state's decision to provide a "strictly secular" public education does not do so. Secular public education neither "coerce[s]" parents "into violating their religious beliefs" nor denies religious parents "an equal share of the rights, benefits, and privileges enjoyed by other citizens."

The parties dispute whether the funding and materials California provides to parents for use in independent study programs are a generally available public benefit. But even assuming that they are, the programs at issue in this case are sufficiently public to allow California to condition participation on parents' use of secular curricula.

The status of those programs under California law as part of the state system of public education is consistent with the critical features that the Supreme Court found characteristic of public schools in Carson. There, although Maine argued that its program was equivalent to funding a secular public education, the Court identified several important distinctions between public schools and the private schools for which the program paid tuition. First, Maine public schools, unlike the state's private schools, "have to accept all students." Second, public schools, unlike private schools, are free to attend. Third, public schools must follow extensive state-imposed curricular requirements, while private schools are "subject only to general standards and indicators governing the implementation of their own chosen curriculum" and "need not administer the annual state assessments." Fourth, "other distinctions," like that public schools must "hire state-certified teachers," separate the two.

The independent study programs at issue here [unlike California private schools, including private homeschooling programs,] share the features of public education that the Court emphasized in Carson. [Details omitted. -EV] …

Plaintiffs have alleged, and we take as true, that the defendant charter schools provide parents great flexibility to choose which pre-existing curricula to use to educate their children, or to create their own. But with that flexibility comes substantial legal constraints not applicable to private schools.

Plaintiffs also emphasize that, unlike in Maine's (and most) public schools, students in the independent study programs receive instruction in their homes, and the direct educators are their parents. But in contrast to private homeschooling, parents in independent study programs can teach only under the supervision of state employees. The extensive legal requirements applicable to the defendant charter schools' independent study programs make the programs sufficiently public to defeat Plaintiffs' free exercise claim.

And the court rejected plaintiffs' compelled speech claim:

Plaintiffs' compelled speech claim … is premised on the argument that "[w]hen parents in the Blue Ridge and Visions programs select a diverse array of curricula for their children's diverse needs," the parents are speaking, not the government. However, we have held that a public school's curriculum is an "expression of its policy," and that "information and speech … present[ed] to school children may be deemed to be part of the school's curriculum and thus School District speech." Government speech is "not subject to scrutiny under the Free Speech Clause." Moreover, the state "is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources."

Citing Rosenberger v. Rector (1995), Plaintiffs also argue that a public school cannot discriminate against religious viewpoints when it creates a limited public forum. Rosenberger, however, involved a public university's refusal to fund an otherwise-eligible student news organization with a religious viewpoint. More importantly, it expressly recognized that "[w]hen the University determines the content of the education it provides, it is the University speaking."

Just so here. Blue Ridge and Visions, in refusing to permit the use of the requested curricular materials, determined the "content of the education" they would provide and any resulting speech in instruction was theirs, not that of Plaintiffs.

Thomas H. Prouty, Kendra J. Hall, and Kevin M. Troy argued for defendants.

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