Eugene Volokh's Blog, page 18

October 9, 2025

[Eugene Volokh] Judge Rejects Drake's Defamation + Harassment Lawsuit Over Kendrick Lamar's "Not Like Us" Diss Track

A short excerpt from Judge Jeannete Vargas's long opinion in Graham v. UMG Recordings, Inc.; read the full opinion for more:

This case arises from perhaps the most infamous rap battle in the genre's history, the vitriolic war of words that erupted between superstar recording artists Aubrey Drake Graham ("Drake") and Kendrick Lamar Duckworth ("Lamar" or "Kendrick Lamar") in the spring of 2024. Over the course of 16 days, the two artists released eight so-called "diss tracks," with increasingly heated rhetoric, loaded accusations, and violent imagery. The penultimate song of this feud, "Not Like Us" by Kendrick Lamar, dealt the metaphorical killing blow. The song contains lyrics explicitly accusing Drake of being a pedophile, set to a catchy beat and propulsive bassline. "Not Like Us" went on to become a cultural sensation, achieving immense commercial success and critical acclaim.

Here are the relevant lyrics quoted from "Not Like Us," though there were more songs quoted from the rap battle:

Say, Drake, I hear you like 'em young
You better not ever go to cell block one

To any b**** that talk to him and they in love
Just make sure you hide your lil' sister from him
They tell me Chubbs the only one that get your hand-me-downs
And PARTY at the party, playin' with his nose now
And Baka got a weird case, why is he around?
Certified Lover Boy? Certified pedophiles

Wop, wop, wop, wop, wop, Dot, f*** 'em up
Wop, wop, wop, wop, wop, I'ma do my stuff
Why you trollin' like a b****? Ain't you tired?
Tryna strike a chord and it's probably A-Minor

Back to the opinion excerpt:

Both Drake and Kendrick Lamar have recording contracts with Defendant UMG Recordings, Inc. ("UMG" or "Defendant"). Drake alleges that UMG intentionally published and promoted "Not Like Us" while knowing that the song's insinuations that he has sexual relations with minors were false and defamatory.,,,

[I.] Defamation Claims

… The issue in this case is whether "Not Like Us" can reasonably be understood to convey as a factual matter that Drake is a pedophile or that he has engaged in sexual relations with minors. In light of the overall context in which the statements in the Recording were made, the Court holds that it cannot.,,,

The forum here is a music recording, in particular a rap "diss track," with accompanying video and album art. Diss tracks are much more akin to forums like YouTube and X, which "encourag[e] a freewheeling, anything-goes writing style," than journalistic reporting. The average listener is not under the impression that a diss track is the product of a thoughtful or disinterested investigation, conveying to the public fact- checked verifiable content….

The fact that the Recording was made in the midst of a rap battle is [also] essential to assessing its impact on a reasonable listener….

That the Recording can only reasonably be understood as opinion is reinforced by the language employed in the song. "Loose, figurative or hyperbolic statements, even if deprecating the plaintiff" and "imaginative expression" cannot constitute actionable defamation….

[II.] Second Degree Harassment

New York does not recognize a civil cause of action for harassment. Notwithstanding this precedent, Plaintiff attempts to bring a claim for harassment under section 240.26(3) of the New York Penal Code. A person commits harassment in the second degree when they hold the "intent to harass, annoy or alarm another person" and "engage[] in a course of conduct or repeatedly commit[] acts which alarm or seriously annoy such other person and which serve no legitimate purpose." Plaintiff alleges that the Recording, Video and Image "individually and collectively provide a call to target Drake, including through violence," and that Defendant's "course of conduct in publishing specific and unequivocal threats of violence has placed Plaintiff in reasonable fear of physical harm." This state criminal statute does not provide a private right of action, however. Accordingly, Plaintiff fails to state a claim for harassment….

[III.] New York General Business Law Section 349

Plaintiff's final cause of action, brought under section 349 of New York General Business Law ("GBL"), fares no better. Section 349 prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service." Plaintiff alleges that, "on information and belief," Defendant "engaged in deceptive acts and practices in the conduct of business, trade, and commerce by covertly financially incentivizing third parties—including music platforms and social media influencers—to play, stream, and promote the Recording." …

While these covert practices of providing financial incentives to undisclosed third parties and leveraging of business relationships, if they exist, may be facts that are "peculiarly within the possession and control of" UMG, Plaintiff's allegations —based on what boils down to unreliable online commentary—do not form a "sufficient factual basis such that there is a 'reasonable expectation that discovery will reveal evidence of illegality.'" Ultimately, Plaintiff fails to provide any facts or circumstances that would make it "highly plausible" that UMG conducted such covert business tactics.

Even if the Court accepted Plaintiff's pleadings on information and belief, Plaintiff still has not stated a claim for relief under section 349. Plaintiff has not sufficiently alleged deceptive practices that are consumer oriented. "Under New York law, the term 'consumer' is consistently associated with an individual or natural person who purchases goods, services or property primarily for personal, family or household purposes." …

The Amended Complaint does not indicate how any of the deceptive practices allegedly utilized by UMG harmed consumers. For example, the Amended Complaint does not allege that consumers paid more than they otherwise would have for a product, purchased a product that they otherwise would not have because of misrepresentations regarding the product, or otherwise received less in value for any purchases that they did make….

Nicholas Primer Crowell and Rollin A. Ransom (Sidley Austin LLP) represent UMG.

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Published on October 09, 2025 13:30

[Eugene Volokh] Louisiana Act of Terror Claim Can Go Forward Based on Alleged Violent Attack on Pro-Israel Demonstration

From Judge Jane Triche Milazzo's decision yesterday in Mann v. Quraan (E.D. La.); recall that the factual assertions are just those alleged in the Complaint—there hasn't yet been factfinding as to whose side of the factual story is correct:

Plaintiff Dylan Mann, an undergraduate student at Tulane University, alleges that on October 26, 2023, he participated in a demonstration in support of Israel in uptown New Orleans in response to a pre-planned anti-Israel protest. He alleges that the anti-Israel protest was organized by non-Tulane students and specifically targeted Tulane due to the significant number of Jewish students enrolled there.

Plaintiff alleges that during the protest Defendant Abraham Quraan drove back and forth in his vehicle between the two protests in order to cause a disturbance or provoke the Tulane students. At some point, Defendant Quraan exited his vehicle, violently assaulted Plaintiff, and ripped an Israeli flag off of Plaintiff's body. Defendant Alaa Salam allegedly joined in the attack and struck Plaintiff with a bullhorn. Plaintiff alleges that the Defendants verbally expressed hate for Jewish people during the incident. After assaulting Plaintiff, Defendants allegedly continued to aggressively approach other Tulane students and Quraan removed his belt with the intent to use it as a weapon.

Plaintiff also alleges that, after the incident, Defendants utilized social media to "espouse implied threats of violence" toward Jewish people and Plaintiff personally….

Plaintiff brings an act of terror claim pursuant to Louisiana Civil Code article 2315.9, which provides that:

In addition to general and special damages, a prevailing plaintiff shall also be awarded court costs and reasonable attorney fees in the appropriate district or appellate court upon proof that the injuries on which the action is based were caused by an act of terror or terrorism resulting in injury to the person or damage to the person's property, regardless of whether the defendant was prosecuted for his acts.

The article goes on to define "act of terror" or "terrorism" as, relevant here, the "[i]ntentional infliction of serious bodily injury upon a human being" occurring "when the offender has the intent to intimidate or coerce the civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by intimidation or coercion." …

"A complaint may allege knowledge and intent generally, though it must still contain factual support making the plaintiff's claims plausible." While this Court agrees with Defendants that the Complaint is lacking in detail, it must view the allegations in the light most favorable to Plaintiff and finds that he has alleged sufficient facts for his act of terror claim to survive this stage of litigation.

Plaintiff generally alleges that Defendants' actions were intended to intimidate or coerce Plaintiff and the other Tulane students at the protest. He alleges that Defendants' presence at the pro-Israel demonstration was for the purpose of inciting or provoking the Tulane students. According to the Complaint, Defendants violently attacked Plaintiff without warning and acted aggressively toward other students while spewing hatred toward Jewish people.

These acts could reasonably be seen as intending to intimidate or threaten the students, prevent them from protesting or supporting Israel, and chill their freedom of speech and assembly. The Court notes that article 2315.9 is broadly worded, and there is no case law interpreting its meaning. However, the facts as pleaded sufficiently allege that Defendants acted with intent to intimidate the civilian population….

Paul Sterbcow (Lewis, Kullman, Sterbcow & Abramson, LLC) represents plaintiff.

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Published on October 09, 2025 07:53

[Josh Blackman] The 14th Annual Harlan Institute Virtual Supreme Court Competition: Patriots v. Loyalists

[Should the United Colonies declare independence from Great Britain?]

The Harlan Institute is pleased to announce the Fourteenth Annual Virtual Supreme Court Competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year, in honor of America's 250th Anniversary, the competition will focus on the case of Patriots v. Loyalists.

Patriots v. Loyalists

Before The Honorable Continental Congress

Oral Argument Date: July 3, 1776

Statement of the Case

In honor of America's 250th birthday, the Harlan Institute will host a very special Virtual Supreme Court Competition for the October 2025 Term. We will re-enact the debates over independence in the form of a moot court competition. Teams of two high school students will make the legal case for and against independence through written and oral advocacy. The top two teams that advance will present oral arguments in the case of In Re Declaration of Independence before a panel of federal judges in a very special location.

Coaches can register their teams at the Institute for Competition Sciences.

Question Presented:

Should the United Colonies declare independence from Great Britain?

Primary Sources

This is a "closed" competition. Students will be limited to the use of the following primary sources that existed prior to July 4, 1776. Students cannot rely on the benefit of hindsight or knowledge of what happened after the Declaration of Independence was adopted.

Preliminary Round

Deadline: November 20, 2025 (11:59 PM ET)

All teams are invited to participate in the Preliminary Round. There will be a written component and an oral component. Submissions will be graded based on this rubric.

Written Component

Teams will be asked to answer the following ten questions in a neutral, objective fashion. At this point of the competition, teams are not yet advocating for or against a position. Each answer should be at least 200 words but no more than 1,000 words, and must cite at least two primary sources. This competition is "closed," and students cannot cite any other sources. Carefully proofread the assignment for spelling, grammar, and usage. The use of generative AI is prohibited. Teams that are found to have used AI will be immediately disqualified.

Discuss the role that the Stamp Act played in the relationship between Great Britain and the Colonies from 1765 to 1772. Discuss how the Colonies, and in particular the Committee of Correspondence, responded to the Tea Act Resolution of 1773. Discuss how the Colonies responded to the Intolerable Acts of 1774 (The Boston Port Act, The Massachusetts Government Act, and the Quartering Act). Discuss how the actions of the Continental Congress in 1774 moved the Colonies towards declaring independence. Describe the arguments advanced by patriots in pamphlets, speeches, and other writings from 1774–1776 that supported declaring independence. Describe the arguments advanced by loyalists in pamphlets, speeches, and other writings from 1774–1776 that opposed declaring independence. Discuss the Continental Congress's efforts of reconciliation with Great Britain in 1775. Discuss the deliberations of the Continental Congress in June and July 1776 that led to declaring independence. Discuss how the text of the Declaration of Independence changed throughout different drafts in June and July of 1776. Discuss writings, speeches, and other sources that influenced the Declaration of Independence. Oral Component

Teams will be asked to present their ten questions in the form of an oral argument. Each student will answer five questions. Students are to avoid reading off prepared remarks (whether on paper or on a device), and must maintain eye contact. These recordings will be uploaded to YouTube. The recording must last at least fifteen minutes.

The Semifinal Round

Deadline: January 29, 2026 (11:59 PM ET)

Teams that advance to the Semifinal Round will be asked to prepare a "Petitioner" brief on behalf of the Patriots in support of independence. Teams will use this template. The brief should address at least the following seven topics: (i) the Stamp Act; (ii) the Tea Act; (iii) the Intolerable Acts; (iv) writings in support of independence; (v) loyalist writings in opposition to independence; (vi) attempts at reconciliation; and (vii) whether the Declaration of Independence should be adopted.

Oral argument will be scheduled over Zoom during the week of February 10.

The Round of 8

Deadline: March 19, 2026 (11:59 PM ET)

The top eight teams that advance will be asked to prepare a "Respondent" brief on behalf of the Loyalists in opposition to independence. Teams will use the same template.

Oral argument will be scheduled over Zoom during the week of March 23.

The Round of 4

The top eight teams that advance will participate in the Round of 4 during the week of April 6, 2025.

The Championship Round

The top two teams will advance to the Championship round which will be held in Washington, D.C. in a very special location at the end of April or beginning of May. The Harlan Institute will cover airfare and hotel for the students and up to two chaperones per team.

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Published on October 09, 2025 05:30

[Josh Blackman] Today in Supreme Court History: October 9, 1954

10/9/1954: Justice Robert H. Jackson dies.

Justice Robert H. Jackson

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Published on October 09, 2025 04:00

[Orin S. Kerr] The Fourth Amendment and the "Instinctive" Drug Detection Dog

[This one is a search.]

Lower courts are divided on the Fourth Amendment implications of a drug detection dog that jumps into a car on its own and then alerts to illegal drugs. I thought I would offer some thoughts on the problem. In my view, unprompted entry should be deemed a Fourth Amendment search. This post explains why.

First, some context. It's settled law that use of the drug sniffing dog to sniff in the area outside a car is not a search. See Illinois v. Caballes, 543 U.S. 405 (2005). It's equally clear that a search of a car occurs if the officer directs a drug detection dog to physically enter the car, the dog enters, and then the dog alerts. What courts struggle with is how to treat the dog that jumps into the car unprompted. If the officer wants the dog to stay out of the car, and it's the dog's own idea to enter the car, do you say that the dog's entry is a Fourth Amendment search attributable to the government? Or is the dog sort of its own independent actor whose instinctive conduct is not attributable to the government, and therefore its subsequent alert is not a search? See, e.g., United States v. Sharp, 689 F.3d 616(6th Cir. 2012) (holding the latter).

It seems to me that this is a question that should have a straightforward answer: An unprompted and instinctive entry by the dog, followed by an alert, is a government search. The drug detection dog is a technological tool that the government trains and brings to the scene to detect narcotics. Like most tools, it is imperfect. It doesn't always go where the government wants it to go. But it makes no sense to say that the dog loses its government character or is somehow not engaged in government action when, being led around a car, it jumps into it. If the dog enters unprompted and alerts inside the car, the government certainly uses that alert for investigatory purposes just like it would if the officer had directed the dog to enter the car. Whether the officer prompted the dog to enter shouldn't matter.

The key precedent that comes to mind is United States v. Karo, 468 U.S. 705 (1984). In Karo, the government secretly put a radio beeper in a can of chemicals sold to a narcotics ring, and they watched to find out where the bad guys carried out their crime by watching where the can went using the beeper. As long as the can stayed on public roads, there was no search under a prior case, United States v. Knotts, 460 U. S. 276 (1983). But what made Karo different is that someone—presumably one of the bad guys—brought the can into a house. The beeper thus registered its location from inside the house instead of on a public road. Karo deemed that alert from inside the house a search for the simple reason that the beeper was transmitting information from inside the home.

But wait, the government protested in Karo: They weren't in control of where the beeper went. The bad guys had brought the beeper into the house, not the government, so it couldn't predict when a search would occur and a warrant would be needed; "they have no way of knowing in advance," the government noted, "whether the beeper will be transmitting its signals from inside private premises." The Supreme Court was unmoved by this argument, basically telling the government that the unpredictability of the beeper's location was its own problem to deal with: "The argument that a warrant requirement would oblige the Government to obtain warrants in a large number of cases is hardly a compelling argument against the requirement."

It seems to me that drug-sniffing dogs in these "instinctive act" cases are a lot like the radio beeper in Karo. In both situations, the government has introduced surveillance tools to obtain information not otherwise known using normal human senses. As long as the surveillance tools stay outside the protected area, their use is not a search under Caballes and Knotts. In both situations, that Fourth Amendment rule gives agents a reason to want the tools to go near places but not go inside them. But in both situations, agents don't have perfect control, and they run the risk that the devices will go in the protected areas of the homes (in Karo) or car (in the dog cases).

Under Karo, if a suspect brings the the beeper into a home, the Fourth Amendment protection changes. Because the beeper is now in the house, a search occurs. I don't know why there would be a different result using the technological tool of a dog as compared to a technological tool of a beeper, especially given that the government has so much more control over where the dog goes as compared to where the beeper went in Karo.

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Published on October 09, 2025 01:17

October 8, 2025

[Jonathan H. Adler] Justice Kennedy on Originalism and Bush v. Gore

[Interesting tidbits in an interview with Adam Liptak]

In advance of the release of his memoir, Life, Law & Liberty, retired Justice Anthony Kennedy sat down with Adam Liptak of the New York Times for an interview.

The book discloses (or perhaps confirms) that Justice Kennedy drafted the Court's opinion in Bush v. Gore. In the Liptak interview, Kennedy acknowledges the problems with opinions produced under time pressure:

In his book, Justice Kennedy disclosed that Chief Justice William H. Rehnquist had assigned him the majority opinion in Bush v. Gore, the 2000 decision that delivered the presidency to President George W. Bush. It was "a close case" and "a close call," he wrote, and he concluded that the majority opinion should be unsigned, which it was.

The court issued its decision, by a 5-to-4 vote on the key issue, the day after the case was argued. Justice Kennedy said that sort of quick action, like the court's recent spate of emergency rulings, was not ideal.

"The court just has to do the best that it can," he said. "But it does need time."

Justice Kennedy also offered these comments on originalism:

In the interview, Justice Kennedy said he had reservations about originalism, which seeks to interpret the Constitution as it was originally understood and has become the intellectual core of the conservative legal movement. Originalism is a starting place, the justice said, but it cannot be the whole story.

"The framers were not so self-assured that they thought they knew every component of liberty," he said. "The meaning of liberty is disclosed over time."

He acknowledged that his view empowered judges. "So what is it that prevents the court from ruling on every interesting and important and essential political and social issue of our times?" he asked, suggesting that there must be some constraints.

Asked to describe those constraints, he said, "You just have to, in case by case, decide whether or not this is absolutely essential to liberty."

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Published on October 08, 2025 20:20

[Stephen Halbrook] Second Amendment Roundup: Antonyuk's and Koons' Historical Feet of Clay

[The 2d and 3d Circuits mistook a widely-criticized, private publication for a Founding-era “law.”]

After a long delay (see post here), on September 10 the Third Circuit finally reached a decision in Koons v. Attorney General of New Jersey, which upheld many of New Jersey's prohibitions on firearm possession in public places. Like a handful of other states, New Jersey reacted to New York State Rifle & Pistol Ass'n v. Bruen, which invalidated New York's limitation of handgun carry licenses to persons with a "proper cause," by a sweeping ban on places where firearms may be possessed.

Bruen held: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Yet as explained below, Koons would rely heavily upon a fake citation that misled it to get that historical tradition backwards. Further, while firearms may be restricted in certain "sensitive places," Bruen continued, that does not include "all places of public congregation that are not isolated from law enforcement." But Koons held just the opposite about many such places.

In setting about to find Founding-era analogues to that of New Jersey, Koons correctly read the 1328 Statute of Northampton as providing that "going armed offensively was prohibited in fairs, markets, in the presence of justices or ministers, or in similar places." It added that two states enacted versions of that offense, including a 1786 Virginia statute with an explicit "terror" element. For North Carolina, it cited A Collection of Statutes of Parliament of England in Force in the State of North Carolina 60–61 (Francois-Xavier Martin ed., 1792), which it referred to as "hereinafter N.C. Statute of Northampton."

Far from being a law, Martin's Collection was a self-published book that simply reprinted, among other British laws, the Statute of Northampton. Citing Justice Breyer's dissent in Bruen, Koons continued, "North Carolina's 1792 statute was so traditional that it retained references to the King." Yet this "statute's" six references to "the King," supposedly enacted sixteen years after independence was declared, should have been a dead giveaway that North Carolina enacted no such law.

For its purported Founding-era analogues, Koons is a cookie-cutter repetition of the flawed Second Circuit's decision in Antonyuk v. James (2024), which initiated a false history of Founding-era law to uphold New York's wide-ranging ban on where firearms may be possessed. Antonyuk began with the Statute of Northampton's language that one shall "bring no force in affray of the peace, nor to go nor ride armed … in Fairs [or] Markets…." But Bruen held that the Statute "has little bearing on the Second Amendment adopted in 1791." As held in Sir John Knight's Case (1686), the Statute applied only to "go[ing] armed to terrify the King's subjects" with evil intent, a common-law offense.

That offense was codified in Virginia's 1786 statute providing that no person shall "go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country." Bruen read that law and similar ones as restricting the carrying of arms only in a manner to cause "terror," not to prohibit peaceably carrying in public. Antonyuk conceded that "the Virginia statute differed from the medieval English Northampton statute in that it prohibited conduct and not simply carriage, i.e., bearing arms in 'terror' of the county [sic]…."

The Antonyuk court next turned to "a 1792 North Carolina statute replicating the 1328 British statute and prohibiting firearms in fairs or markets …." It claimed that "the North Carolina statute, like the Northampton statute, appears to have prohibited firearm carriage in general at fairs and markets regardless of conduct." And it cited this "law" as Martin's above Collection of Statutes. The following traces actual North Carolina law, none of which the Second Circuit even mentioned.

In 1749, the North Carolina General Assembly passed "An Act to put in Force in this Province, the several Statutes of the Kingdom of England, or South-Britain, therein particularly mentioned." It included several statutes of Edward III, but did not include the Statute of Northampton. This 1749 Act was published in A Collection of All the Public Acts of Assembly of the Province of North-Carolina (1752), which was confirmed by the General Assembly. That volume also included two enactments passed in 1741. First, the state's "Act to Appoint Constables" required that constables take an oath to arrest "all such Persons as, in your Sight, shall ride or go armed offensively, or shall commit or make any Riot, Affray, or other Breach of his Majesty's Peace." While no act of Assembly made that a crime, it reflected the common-law offense of an affray.

Second, and by contrast, the state's "Act concerning Servants and Slaves" provided: "That no Slave shall go armed with Gun, Sword, Club, or other Weapon, or shall keep any such Weapon, or shall hunt or range with a Gun in the Woods, upon any Pretence whatsoever, (except such Slave or Slaves who shall have a Certificate, as is hereinafter provided;)…." So, it was a crime for a slave to "go armed" per se, but it was an offense for a free person to go armed only if done so "offensively." It goes without saying that, if a master could issue a certificate to authorize a slave to go armed peaceably, the master could also go armed peaceably.

Antonyuk would have been aware of the 1741 law on going armed offensively, because it was cited by the Supreme Court in U.S. v. Rahimi (2024). In fact, the Supreme Court granted cert, vacated the Second Circuit's 2023 Antonyuk judgment, and remanded it for further consideration in light of Rahimi. In its second Antonyuk decision, the one reviewed here, the Second Circuit made no material changes.

Nor did Antonyuk bother to consult any other North Carolina statutes. In 1787, the General Assembly commissioned James Iredell to revise and compile all laws that remained in force and to leave out acts that are repealed or obsolete. (Iredell would serve as a Justice on the U.S. Supreme Court from 1790 until 1799.) The compilation was approved by an act passed in 1791 and was published as Laws of the State of North-Carolina. It contained the two "going armed" laws passed in 1741: the constable's oath to "arrest all Persons as, in your Sight, shall ride or go armed offensively," and the prohibition that "no Slave shall go armed" without a certificate from the master.

The Antonyuk court cites Martin's A Collection of the Statutes as the source of the alleged North Carolina "law" that replicated the Statute of Northampton in North Carolina. Yet Martin himself was well aware of the terror element of the common-law offense of going armed. In 1791, Martin published a manual entitled The Office and Authority of a Justice of the Peace and of Sheriffs, Coroners, &c. It defined "affray" as "a fighting between two or more; but there must be a stroke given or offered, or weapon drawn…." The terms "stroke offered" and "weapon drawn" are practical ways of describing the crime of going armed offensively.

Apparently in 1791, Martin began work on a book he self-published in 1792 under the title A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina. That was only his second year as a member of the bar. This was wholly his private work and did not bear oversight by any other person, much less approval by the North Carolina legislature. He noted in the Preface that "many, even among the most respectable, professors of the law disagree in regard to the applicability of a number of British statutes…." He modestly wrote: "How far my endeavors have been attended with success, remains to be decided."

Unfortunately, Martin's Collection "was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State." That was the conclusion of the Commissioners of 1833, who the General Assembly appointed and directed "to collate, digest, and revise, all the public statute laws of the State." They consisted of then-Governor James Iredell Jr., state Supreme Court Justice William H. Battle, and Judge Frederic Nash, who later became Chief Justice of the state Supreme Court.

Perhaps the defects in Martin's Collection were attributable to his inexperience in the law, as he was only admitted to the bar in 1789, and inability to master the English language, as his native language was French. A modern source states about Martin's publications: "Both his newspaper and his books contained many errors, some attributable to his incomplete mastery of the English language, others to carelessness and poor proofreading."

One of the English statutes that Martin printed in A Collection was Edward III's Statute of Northampton of 1328. That would be a clue good enough even for Inspector Jacques Clouseau of the Pink Panther series that this was not a statute passed by the North Carolina legislature, given its references to "the King's servants," "the King's precepts," "the King's justices," "the King's Ministers," "the King," and "the King's pleasure." Only a few years earlier, the Americans had fought a bitter war to gain independence from the hated King.

The Second Circuit in Antonyuk repeatedly claims the Statute of Northampton from Martin's Collection to be a North Carolina "law," but meticulously avoids quoting any of the phrases referring to "the King." Its only actual quotation from Martin's book was its reference to the "North Carolina law prohibiting 'to go nor ride armed by night nor by day, in fairs, markets'…."

Revisions of North Carolina law appeared in 1804 and 1821. They included the same constable's oath to arrest those who "go armed offensively" and the same prohibition on slaves going armed at all. In 1837, the legislature mandated that "all [of] the statutes of England or Great Britain heretofore in use in this State, are hereby declared be repealed and of no force and effect from and after the first day of January next [1838] …."

Antonyuk should have done the research necessary to understand the above statutory history before making its sweeping conclusion that North Carolina banned the mere carrying of arms, at least in fairs and markets, without any offensiveness element. But this failing is worsened by the court's failure to acknowledge North Carolina's judicial precedents on the issue.

In State v. Huntly (1843), the North Carolina Supreme Court upheld an indictment alleging that the defendant armed himself with pistols and threatened to kill others, "to the terror of the people…." The court stated that the Statute of Northampton did not create this offense, and in any event whether it was previously in force was now moot based on the above 1837 law. As stated in Sir John Knight's Case, the Statute was but "in affirmance of the common law." While a citizen "is at perfect liberty to carry his gun" "for any lawful purpose," "he may not carry a weapon "to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people."

The Antonyuk court would have been aware of Huntly, as Bruen and Rahimi both discussed it. And Antonyuk disregarded several other North Carolina precedents, not one of which recognized carrying guns in fairs and markets to be an offense per se. Most recently, in State v. Lancaster (2023), the state Supreme Court held that "the elements of the common law crime of going armed to the terror of the public" includes going armed in a public place "for the purpose of terrifying" others, and "in a manner which would naturally terrify" others.

Having constructed this non-existent "North Carolina model" of "prohibit[ing] firearms in quintessentially crowded places notwithstanding behavior," Antonyuk claimed that three state laws in the late 19th century followed and confirmed that supposed Founding-era model, which sufficed to establish a historical tradition of restrictions per Bruen. That raises the issue of whether these laws are too late and too few to be proper analogues, particularly given that they are not consistent with any Founding-era law. We'll cover that topic in the next post.

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Published on October 08, 2025 18:58

[Josh Blackman] The Line Between Conduct and Speech, Between Treatment and Non-Treatment

On Tuesday, the Court heard oral argument in Chiles v. Salazar. This case considers the constitutionality of Colorado's ban on conversion therapy.

As a general rule, the First Amendment protects speech, but not conduct. It is true that some conduct, like flag-burning, has speech-like properties, so is protected by the First Amendment. It is also true that some speech incidental to conduct is not fully protected by the First Amendment. The doctrine here is complex.

During argument, several Justices asked how to draw the line between "treatment" and "non-treatment." This questions seemed to presume that treatment would not be protected by the First Amendment, while non-treatment (that is speech) was protected by the First Amendment.

Colorado argues that therapy that consists entirely of speaking is still a form of medical treatment, and is therefore considered conduct, rather than protected speech. Chiles, by contrast, argued that her therapy that consists entirely of speaking is not a form of medical treatment, and should be considered speech rather than conduct.

I'm not sure the line between treatment and non-treatment really matters. James Campbell, counsel for Chiles, explained that the line doesn't matter "because the First Amendment depends on the difference between speech and conduct, not on the difference between treatment and non-treatment." And I agree with Hashim Mooppan, the Deputy Solicitor General, that treatment and non-treatment are just "labels" that don't make a conceptual difference.

Still, I think there might be a way to draw this line based on how the care is received. First, care that consists entirely of talk, which implicates only the senses of hearing and sight, is not medical treatment. Second, care that is not limited to talk, which implicates the senses of touch, taste, or smell, would be medical treatment. The First Amendment protects the former category of care, but not the latter category of care.

So-called "aversive" therapy, which might include electro-shock therapy, is not limited to talk, but implicates the sense of touch, so would be medical treatment. I don't think any would argue that shock therapy is protected speech. Providing a patient with medicine that they have to ingest would implicate the sense of taste, so would be medical treatment. Any type of surgery that requires a scalpel would clearly be medical treatment.

The treatment at issue in Chiles does not involve any physical touching. And Chiles is not licensed to prescribe medicine or perform any sorts of medical treatment. Her all-talk care, which can only be heard, is not treatment, and is not conduct, but is speech.

I don't think this issue is conceptually difficult under the First Amendment.

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Published on October 08, 2025 18:35

[Paul Cassell] Is Restitution Punishment?

[Next week, if the Supreme Court decides to reach the merits in the U.S. v. Ellingburg case, it should recognize that restitution to crime victims serves compensatory rather than penal purposes.]

Next Tuesday, the Supreme Court will hear argument in Ellingburg v. United States. The question presented is whether criminal restitution under the Mandatory Victims Restitution Act (MVRA) is penal and thus subject to the restrictions of the Constitution's federal Ex Post Facto Clause. This is an important issue for the crime victims' rights movement. If restitution is characterized as punishment rather than compensation, then the restrictions of the Ex Post Facto Clause (and perhaps other restrictions as well) apply to Congress and state legislatures as they craft restitution regimes. Because of the importance of the issue to the movement, I've joined Allyson Ho, Brad Hubbard, Matt Scorcio, and other lawyers at Gibson Dunn in filing an amicus brief urging the Court to affirm the judgment below in Ellingburg and hold that restitution compensates victims rather than punishes defendants.

Our amicus brief is filed on behalf of a crime victim's mother, Ms. Debra Ricketts-Holder, whose son was senselessly murdered in cold blood in 1993. His murderer was sentenced to life without parole. When the murderer was resentenced thirty years later, as required by the Supreme Court's decision in Miller and Montgomery, Michigan sought restitution to reimburse Ms. Ricketts-Holder for the costs she paid to bury her 17-year-old son—a cost no mother should have to bear. The trial court awarded Ms. Ricketts-Holder restitution for her son's funeral expenses.

The murderer (Neilly) then challenged the restitution award as having been awarded under a new regime, in violation of the Ex Post Facto Clause. In Neilly, the Michigan Supreme Court rejected his argument. The Court held that restitution statutes operate to "provide a civil remedy for victims' injuries rather than to provide a criminal punishment for defendants." Neilly has sought review of this Michigan decision in the U.S. Supreme Court—and his petition is apparently being held for resolution of the federal Ellingburg case.

Yesterday, I blogged about how the Supreme Court should DIG Ellingburg, because Ellingburg was sentenced under the discretionary Victim Witness Protection Act (VWPA) rather than the MVRA. So any issue about the MVRA is not properly before the Court. But if, nonetheless, the Court considers the merits, it should affirm the Eighth Circuit's decision below that restitution is not criminal punishment and therefore is not subject to the Ex Post Facto Clause.

Starting from first principles, it would be odd to call restitution punishment. Consider a case (like Ellingburg) where a bank robber is caught escaping with cash from a bank. It makes no sense to say that, when the bank robber is ordered to give the cash back to the bank, that is "punishment." Instead, in common understanding, the bank is simply being restored to the position that it was in before the robber took the bank's money.

Our amicus brief adopts this commonsense approach. It argues that, from antiquity to today, Anglo-American law has understood restitution as a means to compensate crime victims for their losses, not to punish offenders for their crimes. This victim-centered understanding runs from the Old Testament through the English common law familiar to the Founders to contemporary American statutes—including the federal Mandatory Victims Restitution Act. Any attempt to recast restitution as a criminal penalty misunderstands both its legal heritage and its fundamental design.

Our amicus brief explains that English settlers brought the private-prosecution model to the American Colonies, and with it restitution's role of compensating victims. At the time of the Founding, victims in the colonies routinely prosecuted offenses and obtained restitution for their losses directly from offenders, as I have explained in my article on the history of the crime victims' rights movement. Because the victim herself instituted and advanced the proceedings, restitution was pursued and considered as recompense, not retribution. So "restitution has historically been understood as a 'civil' and not a 'punitive' remedy." United States v. Visinaiz, 344 F. Supp. 2d 1310, 1324 (D. Utah 2004) (collecting historical evidence).

Nothing in the Constitution displaced the traditional understanding of restitution as compensatory rather than punitive. To the contrary, the Founders "would have seen the likelihood of victim-initiated prosecution" and expected the practice to continue. Cassell, 56 U. Pac. L. Rev. at 404. By leaving the responsibilities of day-to-day criminal justice to the States, the Founders "were clearly crafting a federal constitution that envisioned state prosecutions initiated by victims." Id.

Against this historical backdrop, the Supreme Court has explained that "the ordinary meaning" of restitution is to "restor[e] someone to a position he occupied before a particular event." Hughey v. United States, 495 U.S. 411, 416 (1990). More recently, the Court has recognized that the "primary goal of restitution is remedial or compensatory." Paroline v. United States, 572 U.S. 434, 456 (2014). For good reason. "Although restitution may be included in a criminal judgment," it has "distinctive attributes" that make it "much like a civil judgment." Nelson v. Colorado, 581 U.S. 128, 146 (2017) (Alito, J., concurring in the judgment). Restitution is an independent basis of recovery in criminal cases with a striking resemblance to compensatory damages in tort cases.

This is how restitution under the Mandatory Victims Restitution Act operates, functionally like a tort statute that harkens "back to a much earlier era of Anglo–American law, when criminal and tort proceedings were not clearly distinguished." United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999). Consistent with the compensatory aim of tort law, the MVRA mandates full restitution for the victim's actual losses without regard to the defendant's financial or other circumstances. See 18 U.S.C. § 3664(f)(1)(A). In this way, the decision to impose restitution turns on compensating the victim for her injury—not on the penal goals of retribution, deterrence, or rehabilitation.

Further underscoring restitution's civil character, the MVRA "does not allow victims to obtain double recovery or a windfall through restitution." United States v. Louper-Morris, 672 F.3d 539, 566 (8th Cir. 2012). If restitution were punitive, the victim's injury or her total recovery wouldn't matter. But "[r]estitution recognizes rights in the victim, and this is a principal source of its strength." Randy Barnett, Restitution: A New Paradigm of Criminal Justice, 87 Ethics 279, 291 (1977). The Court should affirm that, as a matter of history and tradition, restitution remains what it has always been—a non-punitive remedy that compensates crime victims. As a result, statutes that provide for restitution—like the Mandatory Victims Restitution Act and the Michigan statute at issue in Ms. Ricketts-Holder's case—are categorically compensatory and therefore not subject to the Ex Post Facto Clause.

Our amicus brief also provides an additional reason for affirming: Even if the Supreme Court declines to adopt the categorical approach that history and tradition require, then the Court must undertake an individualized purpose-or-effect analysis that focuses on the particular statute under which restitution was imposed to determine whether the Ex Post Facto Clause applies. Numerous States—including Michigan in Neilly—have held that "restitution imposed" under their respective statutes "does not constitute punishment" that could be subject to the Ex Post Facto Clause. See, e.g., State v. McClelland, 357 P.3d 906, 909 (Mont. 2015); R.S. v. Commonwealth, 423 S.W.3d 178, 188 (Ky. 2014); People v. Foalima, 239 Cal. App. 4th 1376, 1398 (2015); State v. Lucas, 758 S.E.2d 672, 680 (N.C. Ct. App. 2014); State v. Freeman, 848 P.2d 882, 885 (Ariz. Ct. App. 1993). Under the purpose-or-effect approach, the "categorization of a particular pro[vision] as civil or criminal" for Ex Post Facto Clause purposes "is first of all a question of statutory construction." Kansas v. Hendricks, 521 U.S. 346, 361 (1997). As a result, any decision in the Ellingburg case reached under a purpose-or-effect test as applied to the MVRA should have limited significance for the retroactive application of other restitution statutes, as the Government has conceded in its briefing on these issues.

An analysis of the Michigan restitution statute in Ms. Ricketts-Holder's case confirms that it (like the MRVA) doesn't implicate the Ex Post Facto Clause, and also underscores that, at the very least, a one-size-fits-all result can't follow from the purpose-or-effect analysis. Like dozens of other state constitutional amendments, Michigan's victims' rights provision wasn't focused on punitive crime-control objectives, but on providing and protecting victims' procedural rights throughout the criminal-justice process. See Cassell, 56 U. Pac. L. Rev. at 436–37, 454, 495 n.830 (restitution in state and federal criminal-justice systems serves remedial, rather than punitive, purposes). In concluding that restitution was not punishment, the Michigan Supreme Court noted that the Michigan Constitution expressly enumerates a crime victim's right to restitution and authorizes the legislature to enact statutes "for the enforcement" of that right. 15 N.W.3d at 567 (quoting Mich. Const. art. 1, § 24). The Court then discussed the long-standing practice of using restitution to compensate victims before determining that "the focus of the current restitution statutes remains on the victims' losses rather than on further punishment of the defendant." Id. at 570. In reaching that conclusion, the Court explained that restitution under these statutes was "tailored to the harm suffered by the victim rather than the defendant's conviction or judgment of sentence." Id.

After detailing the various potential statutory measures of restitution, all of which are "tied to definable, specific costs and losses suffered by the victims of a defendant's crimes," the Michigan Supreme Court concluded that "the intent of the statutes is to provide a civil remedy for victims' injuries rather than to provide a criminal punishment for defendants" because "the amount of restitution is not dependent on the severity of the crime." Id.

Our amicus brief concludes that the order that Neilly make restitution to Ms. Ricketts-Holder for her son's funeral expenses, like the order that Ellingburg reimburse the bank for money he stole, simply doesn't violate the Ex Post Facto Clause. The Court should hold the defendants are not being punished when they are ordered to restore their victims to the positions they were in before the crime.

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Published on October 08, 2025 06:15