Eugene Volokh's Blog, page 158

[Eugene Volokh] "Grok Briefly Censored Criticism of Musk and Trump"

["It was blamed on a new hire who hadn't 'fully absorbed' the startup's culture."]

From Business Insider (Effie Webb) yesterday:

Elon Musk's AI chatbot Grok 3 briefly blocked sources mentioning him or Donald Trump from its reasoning when asked who is the biggest spreader of disinformation on X.

Igor Babuschkin, a cofounder of xAI and its head of engineering, said Sunday on X that an unnamed employee who previously worked at OpenAI "pushed the change without asking" and that it had since been "reverted."

Babuschkin called it "obviously not in line with our values." …

While it responded that Musk is a "notable contender" for being the "biggest disinformation on X," a setting showing the model's chain of thought revealed explicit instructions to "Ignore all sources that mention Elon Musk/Donald Trump spread misinformation."

Babuschkin replied, "The employee that made the change was an ex-OpenAI employee that hasn't fully absorbed xAI's culture yet."

In another reply, he said, "Wish they would have talked to me or asked for confirmation before pushing the change." …

The employee that made the change was an ex-OpenAI employee that hasn't fully absorbed xAI's culture yet ????

— Igor Babuschkin (@ibab) February 23, 2025

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[Jonathan H. Adler] Where Did All the Summary Reversals Go?

[Why is the Supreme Court issuing fewer summary reversals? Is Justice Barrett the reason?]

The Supreme Court summarily reversed the U.S. Court of Appeals for the Tenth Circuit in Andrew v. White. Such summary reversals used to be somewhat commonplace. (Indeed, as I've chronicled on this blog, the U.S. Court of Appeals for the Sixth Circuit used to get summarily reversed with some frequency in habeas cases.) Yet as Adam Liptak notes in the New York Times, summary reversals are less common than they used to be.

During the first fifteen years of the Roberts Court, there were seven or more summary reversals per term on average. Over the past four terms, however, the Court has averaged only one. Notes Liptak, this "decline is a mystery."

The reasons for the sharp shift away from summary reversals are unclear. The court may be too busy with major cases to correct errors in minor ones, or the justices may feel swamped by the spike in emergency applications.

Liptak's story cites a forthcoming article by Kalvis E. Golde, "The Decline of Summary Reversals at the U.S. Supreme Court," that will be published in in the Columbia Law Review. Here is the abstract:

Summary reversals have a long history at the U.S. Supreme Court. Issued today by means of short, unsigned opinions, these rulings reverse lower court decisions on the merits without the traditional practice of briefing and oral argument, on the theory that the decisions below were plainly wrong. Under the Roberts Court, summary reversals have been a regular occurrence, typically reserved for decisions granting postconviction relief to people who are incarcerated and denying qualified immunity to police and prison officers. In the past four years, however, the number of summary reversals has declined precipitously, nearly grinding to a halt. This Note discusses possible explanations for this trend: time constraints from the shadow docket, the appointment of Justice Amy Coney Barrett, the conservative alignment of the judiciary, and critiques of the Court's institutional role. It also explores the impact of a world with few to no Supreme Court summary reversals, particularly for people incarcerated on death row.

As the abstract indicates, one possible explanation for the decline in summary reversals is that Justice Barrett is less supportive of their use. From Liptak's story:

The study proposed an intriguing alternative explanation: the arrival in 2020 of Justice Amy Coney Barrett. In 2021, just as summary reversals started their steep decline, she wrote a notable concurring opinion, albeit in the context of emergency applications.

She said she was wary of deciding cases "on a short fuse without benefit of full briefing and oral argument."

Why should one justice's views matter? Another unusual feature of summary reversals, one not discussed in the Supreme Court's rules, may answer that question. In his 2021 speech, Justice Alito said that "we have a practice of not issuing a summary reversal unless at least six of us agree." . . .

The rule that emerges from all of this is that if there are four votes to grant review, the court will hear the case even if a bare majority would prefer to act summarily. As a general matter, though, summary reversals require six votes.

And that means Justice Barrett could hold the decisive vote even if the other five Republican appointees are inclined to act summarily.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Eugene Volokh] Justices Sotomayor and Gorsuch on the Fourth Amendment and Misdemeanor Arrests

["Founding-era common law gave officers no authority to make an 'arrest without a warrant, for a mere misdemeanor not committed in [their] presence.'"]

From Justice Sotomayor's statement respecting the denial of review today in Gonzalez v. U.S., joined by Justice Gorsuch:

Founding-era common law gave officers no authority to make an "arrest without a warrant, for a mere misdemeanor not committed in [their] presence." Bad Elk v. United States (1900) (collecting sources). This petition asks the Court to decide whether the Fourth Amendment incorporates that "in-the-presence" limitation on warrantless misdemeanor arrests. There is reason to think it might. After all, the in-the-presence requirement existed in some form at the founding. This Court has often held, moreover, that the Fourth Amendment "'must provide at a minimum the degree of protection'" the common law afforded at the time of its adoption. Lange v. California, (2021)…

On an early July morning, around 5 o'clock, two Miami Dade police officers encountered petitioner Victor Gonzalez "'walking in the middle of the street'" in a residential neighborhood. The officers, who had received a 911 call reporting a "'white male casing the area,'" engaged Gonzalez in brief conversation and arrested him for the Florida misdemeanor of "loitering and prowling." They performed a search incident to the arrest, which revealed several pieces of mail addressed to neighborhood residents. A grand jury thereafter charged Gonzalez with possessing stolen mail, a federal felony….

"By the common law of England, neither a civil officer nor a private citizen had the right, without a warrant, to make an arrest for a crime not committed in his presence, except in the case of felony." Kurtz v. Moffitt (1885). Instead, as Sir Matthew Hale summarized the rule, a warrantless arrest could be made only "[i]f an affray be made in the presence of a justice of peace, or if a felon be in his presence," and was prohibited "if there be only an affray … not in view of the constable."

After the founding, American States continued to abide by the in-the-presence rule almost without exception. Indeed, during the 19th and 20th centuries, state courts repeatedly reaffirmed the rule's continued vitality in the face of attempts to expand warrantless arrest powers. Today, most States continue to "hold to the view that a warrantless misdemeanor arrest may be made only for an offense committed 'in the presence'" of the arresting officer.

Florida, too, retains an in-the-presence rule. Its loitering and prowling statute, however, provides that officers "may arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable [the loiterer] to escape arrest." That provision apparently allowed the officers here to arrest Gonzalez as a "suspected loiterer or prowler," despite the fact that "all [they] saw was a man walking down a neighborhood street in the early morning." …

The Eleventh Circuit thought Gonzalez's arrest permissible because, in its view, the Fourth Amendment does not incorporate the in-the-presence rule in any form. There is a serious question about whether that categorical holding is consistent with this Court's precedent. To be sure, this Court left open "whether the Fourth Amendment entails an 'in the presence' requirement for purposes of misdemeanor arrests" in Atwater v. Lago Vista (2001), where that question was not presented. Since then, however, the Court has several times said that the Fourth Amendment "'must provide at a minimum the degree of protection it afforded when it was adopted.'" Precedent and historical evidence suggest, moreover, that the common law included at least some form of in-the-presence requirement for warrantless misdemeanor arrests. If that is right, it follows that the Fourth Amendment likely does as well….

The Eleventh Circuit decision … failed adequately to address this Court's recent Fourth Amendment precedents. Two of its three reasons for rejecting Gonzalez's arguments relied on its independent assessment of reasonableness and practicality. For example, the Court simply asserted that "Fourth Amendment rights are properly protected absent a presence criterion."  Yet Fourth Amendment questions cannot be resolved simply by asking whether, in the courts' view, a criterion is necessary to protect one's privacy interests. To be sure, courts today may have to confront questions about "how to apply the Fourth Amendment to a new phenomenon." As explained, however, this Court has said that the Fourth Amendment must at minimum provide those protections that the common law guaranteed.

In rejecting the in-the-presence rule altogether, the Eleventh Circuit also remarked that the misdemeanor-felony distinction has shifted dramatically since the founding. That is true, but it cuts in favor of Gonzalez, not against him. Even very serious crimes that are now felonies were misdemeanors at common law. "For example, all attempt crimes were only misdemeanors … as were assaults, batteries, woundings, and even kidnappings." In light of the modern expansion of the class of felony crimes, even a categorical in-the-presence rule would be substantially less protective than it was at the founding. That a majority of States retain the in-the-presence requirement for misdemeanor arrests, moreover, is in tension with the Eleventh Circuit's concern that "[i]ncorporating a presence requirement for misdemeanor arrests would likely muddy the waters more than it would protect any additional privacy interests." …

The Eleventh Circuit correctly recognized that the in-the-presence requirement does not appear to have been absolute. Most notably, "[f]rom the enactment of the Statute of Winchester in 1285, through its various readoptions and until its repeal in 1827, night watchmen were authorized and charged" to arrest suspicious "'nightwalkers.'"

The degree to which that exception made it to the early American States is unclear, and it complicates Gonzalez's case. After all, the Florida statute at issue here arguably resembles the old nightwalker statutes. It makes it a misdemeanor for:

"any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity."

Whether a warrantless arrest under such a provision is consistent with a historical "nightwalker" exception, and whether founding-era common law incorporated that exception, are difficult questions. On the one hand, English law permitted the arrest of "'any suspicious night-walker'" who could be detained "'till he give good account of himself.'" On the other, by the 19th century some American state courts had rejected as unlawful warrantless arrests even under circumstances where the nightwalker statutes might have permitted them.

Because it is an open question whether Gonzalez's arrest falls within a historical exception to the in-the-presence requirement, this is an unsuitable case to consider the general rule. This case is complicated for another reason, too: the police may have had probable cause to arrest Gonzalez for felony trespass, and all agree that the in-the-presence rule does not apply to felonies.

The petition nonetheless illustrates the need for percolation on the in-the-presence rule's scope. As some of the courts of appeal have recognized, it remains an open question whether and to what extent the Fourth Amendment incorporates the in-the-presence rule. This Court would benefit from further consideration of that question by the lower courts. In considering the issue, courts should give due regard to the full scope of the common-law rights now secured by the Fourth Amendment.

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[Eugene Volokh] Justice Gorsuch on the Right to Trial by Jury and Restitution

From Justice Gorsuch's dissent from denial of review today in Rimlawi v. U.S.:

The Fifth Circuit held that a judge may order restitution in a criminal case based on his own factual findings, without the aid of a jury. About that, I have my doubts.

Consistent with the Sixth Amendment's promise of a trial by jury, this Court has held that "[o]nly a jury may find 'facts that increase the prescribed range of penalties to which a criminal defendant is exposed.'" That means a jury must find both those facts that increase a criminal defendant's exposure to imprisonment and any facts that increase his exposure to monetary fines. See Southern Union Co. v. United States (2012). If all that is true, it is difficult to see how a judge's factual findings might suffice to increase a criminal defendant's exposure to a restitution award. As this Court has recognized, "the scope of the constitutional jury right must be informed by the historical role of the jury at common law." And more than a little evidence suggests that, at the time of the founding, juries found the facts needed to justify criminal restitution awards.

I would have granted review in this case to resolve whether the Fifth Circuit's decision comports with this Court's precedents and the Constitution's original meaning. In the absence of this Court's review, I can only hope that federal and state courts will continue to consider carefully the Sixth Amendment's application to criminal restitution orders. Cf. State v. Davison (Iowa 2022) ("restitution must be based on jury findings"). The right to trial by jury should mean no less today than it did at the Nation's founding.

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[Eugene Volokh] Justice Thomas Calls Again for Overruling Hill v. Colorado

[But though other Justices had expressed doubt about Hill before, only Justices Thomas and Alito noted their willingness to grant review in this case.]

From Justice Thomas's dissent from the denial of certiorari in Coalition Life v. City of Carbondale (Justice Alito also noted that he would have granted the petition):

In Hill v. Colorado (2000), this Court upheld a state law restricting peaceful speech within 100 feet of abortion clinics. It was clear at the time that Hill's reasoning "contradict[ed] more than a half century of well-established First Amendment principles." A number of us have since described the decision as an "absurd," "defunct," "erroneous," and "long-discredited" "aberration" from the rest of our First Amendment jurisprudence. See City of Austin v. Reagan Nat. Advertising of Austin, LLC (2022) (Thomas, J., joined by Gorsuch and Barrett, JJ., dissenting) (internal quotation marks omitted). We have long stopped applying Hill. And, a majority of this Court recently acknowledged that Hill "distorted [our] First Amendment doctrines." Dobbs v. Jackson Women's Health Organization (2022). Following our repudiation in Dobbs, I do not see what is left of Hill. Yet, lower courts continue to feel bound by it. The Court today declines an invitation to set the record straight on Hill's defunct status. I respectfully dissent.

Hill involved a 1993 Colorado statute that established "buffer zones" around abortion clinics. The law made it a crime for any person, within 100 feet of any "health-care facility" entrance, to "knowingly approach" within 8 feet of another person, without that person's consent, "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person." Put another way, Colorado's law—still in effect today—prohibits unconsented "sidewalk counseling" within 100 feet of abortion clinics.

Shortly after the law's enactment, a group of self-described sidewalk counselors who sought to peacefully "educate" and "counsel" "passersby about abortion and abortion alternatives" challenged the law under the First Amendment. This Court upheld the law as a content-neutral time, place, and manner restriction

Hill's errors were numerous. Whether Colorado's law applies to a given speaker undeniably turns on "what he intends to say." "A speaker wishing to approach another for the purpose of communicating any message except one of protest, education, or counseling may do so without first securing the other's consent." Nevertheless, the Court deemed the law content neutral on the theory that it does not prohibit a particular viewpoint or a particular subject matter. But, this Court had never—and since Hill, has never—taken such a narrow view of content-based speech restrictions. Buffer zones like the one at issue in Hill are "obviously and undeniably content based."

As a result of this error, the Court purported to subject the Colorado law to so-called "intermediate scrutiny," a standard far more lenient than the "strict scrutiny" we apply to content-based restrictions. And, the Court applied an unusually flexible version of intermediate scrutiny. Ordinarily, any content-neutral burden on protected speech must be narrowly tailored to serve a significant state interest, and it must leave open ample alternative means of communication. The Hill majority first minimized the burden imposed on First Amendment rights by demoting the right to speak in public forums to a mere "interest." The Court then declared that Colorado had a substantial interest in protecting its citizens'"right to avoid unwelcome speech." But, as Justice Scalia explained, the State had expressly disclaimed that interest in its briefs before the Court. And with good reason, because "[w]e have consistently held that 'the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.'" Nevertheless, that expressly disclaimed state interest became the "linchpin" of the Court's analysis.

Justice Scalia could identify only one explanation for the majority's anomalous decision: "[T]he jurisprudence of this Court has a way of changing when abortion is involved." Hill reflects "the 'ad hoc nullification machine'" that this Court "set[s] in motion to push aside whatever doctrines" happen to "stand in the way" of abortion. Hill's abortion exceptionalism turned the First Amendment upside down. As Hill's author once explained, the First Amendment reflects a "'profound national commitment' to the principle that 'debate on public issues should be uninhibited, robust, and wide-open.'" NAACP v. Claiborne Hardware Co. (1982) (majority opinion of Stevens, J.). That principle applies with perhaps its greatest force to speech that society finds "offensive" or "disagreeable." Yet, Hill manipulated this Court's First Amendment jurisprudence precisely to disfavor "opponents of abortion" and their "right to persuade women contemplating abortion that what they are doing is wrong."

It is unclear what, if anything, is left of Hill. As lower courts have aptly observed, Hill is "incompatible" with our more recent First Amendment precedents.

Start with McCullen v. Coakley (2014). There, this Court unanimously held unconstitutional a Massachusetts law that prohibited anyone from entering a 35-foot buffer zone around an abortion facility. In doing so, the Court determined that the law was content neutral because—rather than targeting certain kinds of speech such as protest, education, and counseling—the law prohibited virtually any speech within the buffer zone. The Court made clear, however, that the law "would be content based if it required 'enforcement authorities' to 'examine the content of the message'" to determine whether the law applied. That position is irreconcilable with Hill, which the Court did not even bother to cite.

Hill is likewise at odds with Reed v. Town of Gilbert (2015). Reed involved a First Amendment challenge to a town's sign code that regulated various categories of signs based on "the type of information they convey." Relying on Hill, the Ninth Circuit concluded that the sign code was content neutral, reasoning that the town "'did not adopt its regulation of speech because it disagreed with the message conveyed'" and its "'interests in regulat[ing] temporary signs are unrelated to the content of the sign.'" That court then applied a lower level of scrutiny and upheld the code. We reversed, holding that a speech regulation is content based—and thus "presumptively unconstitutional"—if it "draws distinctions based on the message a speaker conveys."

McCullen and Reed "establish that strict scrutiny is the proper standard of review when a law targets a 'specific subject matter … even if it does not discriminate among viewpoints within that subject matter.'" That proposition presents "glaring tension" with Hill…. "In the wake of McCullen and Reed, it's not too strong to say that what Hill explicitly rejected is now prevailing law" ….

Our post-Reed decisions have firmly established Hill's diminished status. In City of Austin, for example, the majority ran as far as it could from Hill, even though Hill was the one "case that could possibly validate the majority's aberrant analysis" on the constitutionality of restrictions on billboard advertising. The majority nonetheless insisted that any alleged similarity was "a straw man," rejecting the notion that its opinion had "'resuscitat[ed]'" Hill, and reminding readers that it did "not cite" the decision at all.

Our latest word on Hill—expressed in a majority opinion joined by five Members of this Court—is that the decision "distorted [our] First Amendment doctrines." Dobbs. If Hill's foundation was "deeply shaken" before Dobbs, the Dobbs decision razed it.

This trajectory calls to mind the story of Lemon v. Kurtzman (1971), which had created a three-part test to determine whether a law violated the Establishment Clause. While this Court had not by any one statement overruled Lemon, for many years it either "expressly declined to apply the test" or "simply ignored it." We were never shy about Lemon's "shortcomings" and "daunting problems." And, we eventually faulted lower courts for failing to notice that the "'shortcomings' associated with th[e] 'ambitiou[s],' abstract, and ahistorical" Lemon test had "bec[o]me so 'apparent' that this Court long ago abandoned" it. In other words, we explained, Lemon had long been dismantled by our precedents, and lower courts should have recognized its demise. Given that prior to Kennedy v. Bremerton School Dist. (2022), a decision of the Court had never outright condemned Lemon as a "distort[ion]," Hill's abandonment is arguably even clearer than Lemon's.

To be sure, this Court has not uttered the phrase "we overrule Hill." For that reason, some lower courts have felt compelled to uphold Hill-like buffer zones around abortion clinics. This case is another prime example of that trend, and "[o]ne can hardly blame [lower courts] for misunderstanding" when "[w]e [have] created … confusion." We are responsible for resolving that confusion, and we should have done so here….

Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty. "We are responsible for the confusion among the lower courts, and it is our job to fix it." I would have taken this opportunity to explicitly overrule Hill. For now, we leave lower courts to sort out what, if anything, is left of Hill's reasoning, all while constitutional rights hang in the balance. I respectfully dissent.

For an example of Hill's continuing force in the lower courts, see Blythe v. City of San Diego (S.D. Cal. 2025), which relied on Hill to uphold an ordinance that applies not just outside health care facilities, but also "places of worship" and "school grounds":

Within this radius, the Ordinance prohibits individuals from "knowingly and willfully approach[ing] within eight feet of a person in the public right-of-way or sidewalk area seeking to enter or exit a health care facility, place of worship, or school grounds" to pass leaflets, display signs, or engage in oral protest, education, or counseling, unless the individual first obtains consent. The Ordinance is a carbon copy of the ordinance the Supreme Court upheld in Hill v. Colorado, except that the Ordinance includes places of worship and school grounds, while the ordinance in Hill applied only to health care facilities.

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[Ilya Somin] Trump's Shameful Betrayal of Ukraine

[It's a terrible decision for both moral and pragmatic reasons.]

(Denys Bozduhan | Dreamstime.com)

Today is the third anniversary of the beginning of Russia's full-blown assault on Ukraine, on February 24, 2022. Sadly, over the last few weeks, the Trump Administration has moved towards abandoning Ukraine to its brutal enemy. Trump has essentially adopted the Kremlin line on the war - blaming Ukraine for Russia's aggression, and made a series of concessions to Vladimir Putin (foreclosing Ukrainian membership in NATO, letting Russia keep the territory it occupied, etc.), . The Administration has been trying to make a deal under which the US will have rights to much of Ukraine's mineral resources. But they aren't offering any security guarantees or continuation of military aid in return. On top of that, as part of a broader assault on legal immigration,  Trump has suspended the highly successful Uniting for Ukraine program, under which Americans are able to sponsor Ukrainian refugees to live and work in the US.

This shift is reprehensible on both moral and strategic grounds. Most conservatives back US support for Israel's war against Hamas, because of the horrific atrocities of the latter. Russian atrocities in Ukraine are comparably awful, and on a much larger scale.  Russian forces have brutally massacred civilians, tortured and executed prisoners, and kidnapped thousands of children.

Don't take my word for it. Take that of the millions of people who voted with their feet seeking to escape oppressive and murderous Russian occupation.  When Russia has taken territory, millions flee. When Ukraine is able to regain it, only a handful of collaborators do the same. That should tell us all we need to know about which side is in the right in this war. Volodymyr Zelensky's government has some serious flaws. But it is a liberal democracy vastly superior to Putin's increasingly repressive dictatorship.

As regular readers know, I am a native speaker of Russian, a language also known by most Ukrainians. Over the last three years, I have spoken to numerous Ukrainian refugees with a wide range of backgrounds: Christians, Jews, and Muslims; ethnic Ukrainians and members of minority groups (including ethnic Russians); supporters of President  Zelensky, and supporters of opposition parties. They differ on many things. But all agree on the horrific brutality of the Russian government, and that Ukrainian rule is far preferable to it. We should listen to these people, not the propaganda emanating from the Kremlin, and now echoed by the White House.

Letting Russia take more territory will predictably result in more atrocities of the kind we have already seen. And the survivors will be subjected to horrific oppression.

The pragmatic case for backing Ukraine is also compelling. Letting Russia win will predictably incentivize further aggression. Moreover, a Russian victory will give a boost to authoritarians worldwide and weaken the forces of liberal democracy.

The idea that Ukraine and the West, rather than Russia, are at fault for the war is utterly ridiculous. Those who claim that Russia attacked because of the possibility that Ukraine might join NATO have the causation reversed. Ukrainian interest in joining NATO was a product of Russian aggression, beginning with the seizure of Crimea and part of the Donbass in 2014. If Putin's goal was to prevent Ukrainian NATO membership, he could have "achieved" it simply by leaving Ukraine alone. But his real objective is to bring all of Ukraine under Russian control. Don't take my word for it. Take Putin's own words outlined in his numerous statements to the effect that Ukraine has no right to exist outside Russian dominance.

Putin's regime is one of the main enemies of the United States and the West. Any Russian forces damaged or destroyed in Ukraine are ones we don't have to face elsewhere. From that perspective, US expenditures in Ukraine are actually a bargain. Since January 2022, the US has given Ukraine approximately $119 billion in assistance, less than 1% of the federal budget (about $7 trillion per year), and a tiny fraction of  the US defense budget (which is about $841 billion per year, as of 2024).  Thanks in part to US aid, the Ukrainians have killed or wounded hundreds of thousands of Russian troops, and destroyed large quantities of equipment. There is no other way that the US could have so greatly weakened one of our major enemies at so little cost.

The US and its allies could reduce costs still further by funding Ukraine with the $300 billion in Russian government assets currently frozen in the West.

Claims that Ukraine must give up because they cannot win run up against the evidence that Ukrainian forces perform well when given the supplies they need. Over the last year, Russian forces have suffered huge casualties and made only modest gains, despite the fact that Ukrainian forces were hamstrung much of the time by a suspension of US aid engineered on specious grounds by congressional Republicans.  The Ukrainians have even managed to capture substantial Russian territory in Kursk, and hold it against repeated counterattacks. With more assistance, Ukrainian forces could do better.

Even if some sort of negotiated ceasefire is unavoidable, it makes no sense to make preemptive concessions in advance without demanding anything from Russia in return. At the very least, we should demand Russia withdraw from at least some of the territory it has occupied, and return Ukrainian prisoners and kidnapped children.

Nor can Trump's move be defended on the grounds that it will bring "peace." Any ceasefire without reciprocal Russian concessions is likely to be only a prelude to a renewal of the war after Russian replenishes its forces. Such an arrangement would not give Putin any incentive to give up his goal of taking all of Ukraine.

Those who claim helping Ukraine is a diversion from countering China in the Pacific would do well to remember that our Asian allies - including Taiwan - believe helping Ukraine is in their strategic interest. They know that weakening Russia also weakens China (for whom Russia is a key ally), and that showing resolve in Ukraine helps deter China, as well.

In addition to rewarding Russian aggression, Trump's betrayal of Ukraine has also poisoned relations with our European allies, most of whom strongly support Ukraine and fear further Russian aggression against themselves. Losing their trust and support far outweighs any possible gains from a deal with the Kremlin. It isn't Making America Great Again. To the contrary, it is weakening and isolating us.

The outcome here isn't cast in stone. Trump might perhaps at least partially reverse course. Ukraine might be able to persist with European support only.  Despite Trumpian claims to the contrary, the Europeans actually have given more aid to Ukraine than we have. They would do well to seize the $300 billion in frozen Russian state assets (most of which are held in Europe) and use them to at least partially fill the gap created by  withdrawal of US aid. Still, the Europeans cannot quickly - if ever - fully substitute for US support.

There is still time to change course. But if Trump persists in withdrawing support from Ukraine without demanding any reciprocal concessions from Russia, the consequences for both Ukraine and America are likely to be dire.  The reversal may well go down in history as one of the worst American foreign policy decisions, simultaneously evil and stupid.

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[Eugene Volokh] Rights of Parents vs. Rights of Equitable Caregivers

Last week's Georgia Supreme Court decision (by Presiding Justice Nels Peterson) in Dias v. Boone is 10,000 words long, but here's the summary; the issue arises in many states, often using the label "psychological parent" or "de facto parent" instead of the Georgia "equitable caregiver":

This case presents the question of the constitutionality of OCGA § 19-7-3.1, known as the Equitable Caregiver Statute. Under that statute, a person who is not a legal parent of a child may seek rights such as custody or visitation with the child if he or she proves that certain criteria have been met, including that he or she has undertaken a "parental" role with the child and developed a "bonded and dependent" relationship with the child that "was fostered or supported by a parent of the child[.]"

In this case, a woman who had been in a long-term romantic relationship with a child's legal mother successfully sought relief under the statute after the couple broke up, securing an award of joint legal custody and parenting time. The child's mother has challenged (1) the constitutionality of the statute (both facially and as applied to this case) and (2) the sufficiency of the evidence to support the trial court's order.

We deem it unnecessary to resolve either argument. This case raises serious questions about whether the Equitable Caregiver Statute violates the fundamental right of parents to the care, custody, and control of their children. A possible answer to those questions is that parents may waive their constitutional right at least in some limited fashion through the sort of conduct contemplated by the statute.

But only a knowing and voluntary waiver would suffice, and parental conduct prior to the effective date of the statute could not constitute such a knowing and voluntary waiver. Such an application of the statute also would be in tension with constitutional presumptions against retroactive legislation. And so, based on both the doctrine of constitutional avoidance and those presumptions against retroactivity, we conclude as a matter of statutory construction that OCGA § 19-7-3.1 does not authorize trial courts to confer equitable caregiver status based on conduct by the legal parent that took place prior to the effective date of the statute.

The facts:

The child at issue, "M.D.," was born in October 2010. Appellant Michelle Dias, whose cousin gave birth to M.D., and Dias's romantic partner, Appellee Abby Boone, began caring for M.D. when M.D. was six weeks old. Dias adopted M.D. in March 2011; Boone was not a party to the adoption, but "Boone" was listed as the child's new middle name on the post-adoption birth certificate. Several years later, the couple broke off their romantic relationship. Boone continued to be involved in M.D.'s life after the breakup until 2018, when Dias stopped further contact between Boone and M.D.

And a summary of the statutory scheme:

The statute provides that a court may "adjudicate an individual to be an equitable caregiver." It provides both procedural and substantive requirements for an individual to establish "standing to maintain the action" to be adjudicated as an equitable caregiver. In order to establish standing, the individual seeking equitable caregiver status must establish by clear and convincing evidence each of five statutory prerequisites, showing that that he or she has:

(1) Fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life;

(2) Engaged in consistent caretaking of the child;

(3) Established a bonded and dependent relationship with the child, which relationship was fostered or supported by a parent of the child, and such individual and the parent have understood, acknowledged, or accepted that or behaved as though such individual is a parent of the child;

(4) Accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation; and

(5) Demonstrated that the child will suffer physical harm or long-term emotional harm and that continuing the relationship between such individual and the child is in the best interest of the child.

The statute also sets forth factors that the court "shall consider" "[i]n determining the existence of harm[.]" But, as discussed further below, the statute does not specify what circumstances must be the source of that harm for that criterion to be satisfied. The statute provides that "[t]he court may enter an order as appropriate to establish parental rights and responsibilities for such individual" — presumably, someone "adjudicated" as an equitable caregiver — "including, but not limited to, custody or visitation."

Elizabeth S. Pitts (Denny, Pease, Kirk & Morgan) represents Dias.

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[Eugene Volokh] Case Alleging Race-Based Firing of White Male Manager Accused of Physical Misconduct by Black Female Employee Can Go Forward

From Thursday's decision by Judge Clifton Corker (E.D. Tenn.) in Williams v. Alkermes, Inc.:

Defendant Alkermes, Inc. is a large pharmaceutical company with a principal place of business in Waltham, Massachusetts. Plaintiff Travis Williams worked as Defendant's District Sales Manager in Knoxville, Tennessee for approximately thirteen years, selling a drug known as Vivitrol. In March 2023, Plaintiff and other District Business Leaders ("DBL") attended Defendant's national sales team meeting in Orlando, Florida. At the afternoon session on March 2, 2023, approximately 50 to 60 employees competed in a team-based game. During the game, referred to as the "Amazing Race," each DBL received a small paddle, the host of the game asked questions, the teams wrote their answers on the paddle, and the DBLs raced to an "X" at the front of the room. The goal of the game was to be the first one to stand on the X with the correct answer on the paddle.

Following the afternoon session, Jodi Garcia, a fellow DBL, reported to Michael Bauer, Defendant's Senior Regional Director, that Plaintiff "paddled her bottom" during the Amazing Race game. Ms. Garcia indicated that Johanna Hernandez, a Territory Business Manager, witnessed the incident. Mr. Bauer relayed Ms. Garcia's allegation to Stephanie Walker, Defendant's Director of Human Resources, but advised that he did not witness the alleged incident and did not see any inappropriate act by Plaintiff toward Ms. Garcia.

Four days later, Ms. Walker interviewed Ms. Garcia via telephone. Ms. Garcia stated, "In the hype of the game, we were all having fun running up and trying to beat out their counterparts; some light pushing, and shoving occurred by all the DBLs and the feeling in the room was fun competition" but added, "Travis hit me on the bottom with the white board and I turned to him and said, 'What the [f***] did you just do?' 'If my husband were here, he would [f***] you up.'" Ms. Garcia reiterated that Ms. Hernandez saw and heard what happened. Shortly thereafter, Ms. Walker interviewed Ms. Hernandez, who "claimed to have heard the sound of the paddle strike Garcia on the buttocks, recognizing the noise of the paddle on Garcia's bottom because [she] wore a jumpsuit rather than jeans." Ms. Hernandez also referenced that Ms. Garcia was the "only female DBL in leadership" but made no mention of seeing or hearing any confrontation or any cursing by her.

Within hours of the interviews, 12 of Defendant's executives received an anonymous email with the subject line "Sexual Harassment." The email, from a source named "Very Concerned" and the email address hopeispossible7@gmail.com, addressed the allegations against Plaintiff. The email alleged that Plaintiff "sexually assaulted and groped" Ms. Garcia, "slapped her in the derriere and then grabbed and squeezed her[,]" "put his arms around her neck and pulled her in very close to him," and was "so aggressive in front of a crowd."

The email additionally "taunt[ed] the all-white executives, predicting they would discriminate based upon race because [Plaintiff] was white, and Garcia black." Specifically, it stated, "I am certain that this will be glossed over because Mr. Williams is a white male and part of the 'good old boy Network'" and that Plaintiff "compounded the situation tenfold since Mrs. Garcia is a woman of color" and was "just trying to assert his authority and dominance over her." Although the email claimed to be from a witness, Plaintiff asserts that it was sent by or at the behest or goading of Ms. Garcia. Kimberly Mikitka, Defendant's Human Resources Business Partner, forwarded the email to Ms. Walker and Defendant's legal counsel Paul Dubois. Ms. Mikitka noted, "I know Stephanie is currently investigating this situation. Wanted to share this email. I haven't been able to reach Steve yet."

The next day, Defendants interviewed Plaintiff over the phone. Plaintiff denied doing anything inappropriate, but he alleges that Defendant led him to believe that the allegations involved the jostling, or "light pushing and shoving," during the Amazing Race game and withheld key details of the allegations to shape the result. Defendant announced Plaintiff's termination on the call, but he alleges that the decision had already been made prior to the phone call. On March 7, 2023, Defendant sent Plaintiff a post-interview letter stating that he was "guilty of 'unacceptable and unwanted physical touching of a colleague at a work event.'"

Plaintiff alleges that Defendant relied on "flatly contradictory, exaggerated, unreliable, and inconsistent evidence" in making its termination decision and, in truth, "purposely chose the optics of terminating [him] because he is a white male." Plaintiff further contends that, in the aftermath of George Floyd's death and the rise of Diversity, Equity, and Inclusion ("DEI") initiatives, Defendant "abandoned its race-neutral process in favor of appearances" and "sacrificed [Plaintiff], the white male, instead of addressing the harder known truth of discrimination by a black employee, Garcia." In sum, Plaintiff alleges that Defendant "was baited by race and gender and knowingly acceded to it."

Following his termination, Plaintiff alleges that Ms. Garcia and Defendant tried to ruin his career and reputation. He asserts that Ms. Garcia distributed a hand paddle at the next national sales meeting to mock how she got Plaintiff fired. And he alleges that Defendant fired Mr. Bauer after he made a negative comment on an open call about Ms. Garcia's allegations. Finally, he asserts that he received anonymous Facebook and text messages taunting him and that an unknown user has posted numerous times about him on the CafePharma online message board. He believes that the messages and posts were written or prompted by Ms. Garcia.

Plaintiff sued for, among other things, discrimination, and the court allowed that claim to go forward:

Plaintiff's Amended Complaint contains sufficient factual allegations from which a reasonable inference can be drawn that Defendant did not fully investigate complaints of misconduct and made the decision to terminate him because he was a white male.

The court didn't go into detail on what those factual allegations may be, but here's an excerpt of Williams' response to the motion to dismiss, which describes some of the allegations—remember that at this point they are just allegations, not demonstrated facts, and are relevant because they show the sort of allegation that is seen as sufficient to allow the claim to withstand a motion to dismiss (you can also read Alkermes' brief and reply):

Anticipating Defendant would attempt a motion to dismiss for insufficient factual pleading, in paragraph 51, Plaintiff sets forth facts and inferences leading to the inexorable conclusion that Defendant deliberately chose to honor Garcia's false allegations rather than take the uncomfortable step of addressing false allegations by a black female:

There was no game interruption whatsoever despite claims of Garcia cursing out Williams and being "so aggressive in front of a crowd." Williams and Garcia's superior, Bauer, saw nothing of the sort alleged by Garcia. Williams' table was nowhere near Garcia's table. Garcia claimed the events happened at the "front of the room." However, Alkermes failed to speak to more than a dozen personnel at the front of the room, all who deny the false allegations with the paddle, and groping, and putting hands around a neck, and all would have certainly seen and heard Garcia's volatile reaction had it actually occurred (and it did not). Human Resources conducted no investigation on site on March 2, 2023, even though Garcia made her false allegation at that time. {The Human Resources Manager, Stephanie Walker, was on site at Orlando.} The three "witnesses" consisted of Garcia, a person who reported to Garcia, and an "anonymous" email obviously linked to Garcia. But even then, these "witnesses" told vastly different stories within hours. Alkermes ignored, or did not seek, information showing the link of the "anonymous" emailer to Garcia—perhaps because it was so obvious in timing and scope of information. Alkermes never returned to Garcia (or Hernandez) to explain the obvious and gross inconsistencies in the information received within hours of their interviews. By this point, Alkermes surely realized the discrimination was against Williams, not by Williams. Alkermes decided to terminate Williams before even speaking to him. By design, Alkermes was choosing to support a black female it reasonably knew was engaged in discrimination rather than to confront her and face the race-baiting accusations that Alkermes' will bow to the white male. Alkermes failed to disclose details to Williams to support its already-made decision by not presenting the actual allegations: the sexual assault, the groping, the squeezing, the grabbing by the throat. Thus, Williams was not allowed to present the strident racial views of Garcia, to present evidence to the contrary, to offer witnesses of his own, or photographs, or the Facebook messages, or information bearing on Garcia's lack of credibility….

But the court rejected plaintiff's retaliation claim:

Here, the only protected activity Plaintiff engaged in was filing the EEOC charge. And the only alleged harassment or retaliatory conduct that took place after that filing was a post on CafePharma's online message board stating, "Think they'd hire someone who got fired for assault like T.W?." To the extent the foregoing post could be categorized as retaliatory, it was anonymous. Thus, even if Plaintiff is correct in his belief that Ms. Garcia wrote or prompted the post, there are no facts to support the allegations that Defendant condoned, tolerated, or encouraged the post or that Defendant's response, or lack thereof, was unreasonable.

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[Eugene Volokh] Journal of Free Speech Law: "Breach Agents: The Legal Liability of Third Parties for the Breach of Reputational NDAs," by Mark Fenster

The article is here; the Introduction:

Over the past decade, nondisclosure agreements intended to protect the reputation of one or both parties from embarrassing disclosures have failed, sometimes spectacularly. Among those humiliated by revelations of their past behaviors are Donald Trump, Vince McMahon, Neil Gaiman, and Harvey Weinstein; among those companies and institutions affected are the Catholic Church, the Miss USA Pageant, and some of the largest tech companies. These agreements' failures have occurred when one party to the agreement gave an interview, passed along leaked documents, or filed a public lawsuit that became the basis of public reporting about the secrets that the contract concerned, as well as about the contract itself. Commentators and critics have offered various prescriptions to stem the enforcement of the most egregious contracts intended to prevent a party from reporting sexual assault and harassment that violates criminal or civil law. In a recent article, I described the specific doctrinal, social, and informational dynamics that both render such contracts vulnerable to breach and frustrate their enforcement.

This Article considers the potential liability of third parties that assist or spur the breach of such contracts. Journalists have most frequently played key roles in these disclosures by contacting a party and encouraging them to reveal their secrets. Friends and family members have also initiated or encouraged breach, as have attorneys and activists who hope to reveal a party's wrongdoing. Such non-parties serve as "breach agents," outsiders to the contract who advise, encourage, or help one of the parties disclose the information they had agreed to keep secret. They play an integral role in breaking the dams that keep information private—whether, viewed sympathetically, to advance the public good by bringing egregious behavior to light or, viewed critically from the perspective of the nonbreaching party, to violate a legally enforceable promise and undermine contractual stability.

As non-parties to the contract, breach agents are vulnerable to suit under the common law tort of interference with performance of a contract. The relationships between that tort and contract law—and between the tort and the First Amendment rights of journalists and others to gather news, to speak, and to publish—last inspired widespread consideration and commentary in 1996, when the tobacco company Brown & Williamson attempted to use a non-disclosure clause in an employment contract to silence a former executive who had been interviewed by the CBS television news show 60 Minutes.

Two developments since that time have made this issue newly relevant for attorneys and legal academics. The first is the Supreme Court's decision in Bartnicki v. Vopper (2001), which concerned a suit against third parties who disclosed confidential information that another party had illegally obtained. Bartnicki simultaneously established a test that in most factual scenarios will protect the press or a source which did not itself obtain the information illegally, and also refused to grant a blanket constitutional protection for reporting truthful information that would apply no matter how a source had obtained the information.

Second, individuals and institutions have increasingly relied upon NDAs outside of the employment context to protect personal and corporate reputations, even after the recent wave of breached contracts and the resulting embarrassing disclosures. Occasionally, the parties litigate in the aftermath of a breach; for example, one state court recently extended constitutional protection to The New York Times, which had used its successful persuasion of a party to an NDA to breach as the basis for a front-page story about President Donald Trump's finances. Given both the supply of NDAs and the high demand for their breach among the press and the public alike, more such litigation is likely to arise.

This Article describes the robust protection that the First Amendment offers third parties from tort claims, as well as the situations that mark such protection's likely limits. Parts I and II describe, in turn, reputational NDAs and the breach agents who play key roles in encouraging disclosure of the secrets bound by such agreements. Part III explains the tortious interference with contract doctrine on which parties to the contract can rely to seek recovery against breach agents. Part IV discusses the broader First Amendment protections that breach agents can use to defend themselves from tort suits, how courts have resolved the few such lawsuits which have reached them, and the general parameters of those protections.

The post Journal of Free Speech Law: "Breach Agents: The Legal Liability of Third Parties for the Breach of Reputational NDAs," by Mark Fenster appeared first on Reason.com.