Eugene Volokh's Blog, page 19

[Eugene Volokh] Woman Repeatedly Badmouthed Ex-Lover, Ordered Not to Say Anything Online About Him, Lost Gun Rights

[She had admitted that some (though not all) of the speech was false, but the injunction (entered in a restraining order case, not following a full defamation trial) extends to all speech, not just falsehoods: "Even speech otherwise protected by the First Amendment may be enjoined if it disturbs the petitioning party's peace."]

Stafford v. Molano, decided Friday by California Court of Appeal Judge Brian Hoffstadt, joined by Judges Carl Moor and Dorothy Kim, upheld a restraining order (which included the provision that "Respondent shall not post about Petitioner online") that was apparently largely based on two sorts of speech:

allegations of sexual assault, which defendant had apparently admitted were false, and allegations of nonconsensual taking of an intimate photograph, which I think defendant never recanted.

I don't think the decision is correct (see here for my general views on the matter)—especially since the injunction forbids even nondefamatory speech, and was expressly not based on a finding that all the speech was false. But this is indeed the way recent California court decisions have been going.

1. First, as to the apparently retracted allegations of sexual assault:

[Molano and Stafford] started a relationship at the end of 2021 while Molano was working for Stafford's construction business. Stafford is married to another woman. Until around Spring 2024, Molano and Stafford sustained an on-again-off-again affair that was, to the say the least, rocky. Molano sometimes threatened Stafford that she would destroy his life and his business if he left her.

Molano subsequently acted on her threats. At some point, Molano posted a photo of her bare back on the Google profile of Stafford's company with a comment "warning clients that [Stafford] was a predator." In October 2023, Molano posted two public comments on the Facebook profile of Stafford's wife (1) stating that Stafford had sexually assaulted Molano and suggesting that the wife go to the courthouse to see the criminal charges for herself, and (2) displaying a photo of bruises with an explanation that the bruises were "from your husband pinning me on the floor, pressuring me to have sex with him in his office." Molano reported the same accusations to the building manager for Stafford's business.

Molano then purported to retract her statements. She signed and had notarized a statement drafted by Stafford in which Molano denied the accusations she made to the building manager. And Molano made further posts on Stafford's wife's Facebook profile apologizing for her prior posts and explaining, "It didn't happen. I was mad. I was mad. It wasn't true." Stafford was neither arrested nor criminally charged based on any of Molano's earlier allegations….

Molano filed a petition for a domestic violence restraining order against Stafford based on allegations of sexual assault. The trial court denied the petition in May 2024. {Molano also pursued a small claims action against Stafford; she lost.} As the parties were leaving the courthouse following the court's ruling, Molano became "belligerent" toward Stafford. Later that day, she sent him a text message saying he is "going to pay big time." …

2. Now, as to the intimate photo:

In March 2024, Stafford took a photo of Molano "in a compromised position" to, in Stafford's own words, create "evidence" that "this is [a] cooperative" sexual relationship in case a "judge, a police officer, or anybody" later accuses him of sexual assault. The parties dispute whether Molano was aware Stafford took the photo…. In the weeks that followed [Molano's "going to pay big time" message to Stafford], Molano (and occasionally her friends) posted several negative reviews of Stafford's company on various websites:

On June 9, 2024, Molano posted a Yelp review stating, "Predator. Manipulator. Physically and sexually abusive. And now trying to blackmail me with pics. Currently pressing charges. Do not let this creep in your home. Really sick person." A nearly identical one-star review was posted under a different name. On June 11, 2024, Molano posted a comment to a work-related photo on Stafford's Facebook page stating, "You're going to prison." On an unknown date, Molano posted another Google review stating "Invasion of privacy. Took naked pics without consent and is trying to blackmail. Sexually, physically abusive. Gaslighting. Manipulative. Narcissist. He has multiple sexual harassment cases and pending charges." On July 17, 2024, Molano posted another Yelp review stating: "If you look up [Stafford], the owner of the company, he took inappropriate pics of me without permission. That's invasion of privacy, sextortion, and against the law. You can look up the court case yourself. I submitted one of the inappropriate pics as evidence. Ladies, stay away from this creep." Yelp reported that 174 users read the review….

3. Stafford then got a domestic violence restraining order against Molano (emphasis added):

{After he filed the DVPA [Domestic Violence Prevention Act] petition and served [a separate defamation lawsuit, which is still pending], Molano posted another review stating, "Owner assaulted me and took inappropriate pics of me and is trying to file a defamation case when I literally have a video and recordings. He's just mad nobody will want to work with him, especially women. Don't let the fake ratings below fool you."} … [At the hearing], Molano freely admitted to authoring the posts, including some by aliases….

On September 26, 2024, the trial court issued a restraining order in favor of Stafford by enjoining Molano from making any public posts about Stafford and his business. The court found that Molano's conduct in "publicly posting allegations of sexual misconduct by [Stafford] on his business websites and wife's public Facebook page, is conduct that would destroy the mental or emotional calm of [Stafford]," and thus "disturb[ed] [Stafford's] peace," which is a basis for relief under the DPVA.

The [trial] court explained that its finding was independent of whether Stafford had sexually assaulted Molano. When Molano stridently announced that she was "going to go public with this regardless," the court extended the duration of the restraining order from one year to three years….

And the Court of Appeal affirmed (emphasis added):

The DVPA empowers a trial court, upon "reasonable proof of … past … acts of abuse," to enjoin conduct that constitutes "abuse." As relevant here, "abuse" includes conduct that "disturb[s] the peace of the other party"—that is, conduct that "destroys the mental or emotional calm of the other party." Even speech otherwise protected by the First Amendment may be enjoined if it "disturb[s] the [petitioning party's] peace." (Bassi v. Bassi (Cal. App. 2024); In re Marriage of Evilsizor & Sweeney (Cal. App. 2015) ["prohibiting [husband] from disseminating the contents of [wife's] phones does not amount to a prohibited restraint of protected speech because [husband's] conduct constituted 'abuse' under the DVPA"]; Phillips v. Campbell (Cal. App. 2016) [restraining boyfriend from posting "photographs, videos, or information about [girlfriend] to any internet site" does not violate the First Amendment "'because [boyfriend's] ability to continue to engage in activity that has been determined after a hearing to constitute abuse [under the DVPA] is not the type of "speech" afforded constitutional protection'"]; In re Marriage of Nadkarni (Cal. App. 2009) [allegations that husband accessing and disclosing private e-mails disturbed wife's peace could constitute abuse to support temporary restraining order].) …

The same logic would apply not just to domestic violence restraining orders following a romantic breakup, but also to harassment restraining orders more broadly.

The firearms restriction wasn't challenged on appeal, but it was indeed automatically imposed, pursuant to California law, by the trial court.

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[Ilya Somin] Perils of the Pentagon's Plan to Use Military Lawyers to Adjudicate Immigration Cases

[The plan is illegal for multiple reasons, is likely to lead to poor decisions, and could undermine military readiness.]

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The Pentagon is planning to divert up to 600 military lawyers (known as "JAGs" - members of the Judge Advocate General's corps) to serve as temporary immigration judges. The idea is to dispose of immigration cases faster.  As Samantha Michaels explains in a helpful Mother Jones article, this is illegal, and is likely to lead to poor decisions in immigration cases, given that most JAG lawyers lack relevant expertise:

The Trump administration has decided to get more immigration judges from an unprecedented source: the military.

On Tuesday, the Associated Press reported that the Pentagon plans to send up to 600 military lawyers to the Justice Department to temporarily run immigration courts around the country. Some of them could receive their new assignments as early as next week.

The arrangement would help the Trump administration tackle a backlog of immigration cases. But military lawyers have little or no experience with immigration law. And some former military lawyers worry the plan isn't even legal. It "should raise all sorts of alarms," Daniel Maurer, a former Army attorney who also taught law at West Point, told me recently.

I spoke with Maurer in July, after President Trump first hinted that he'd be open to the idea of deploying military attorneys—known as Judge Advocate Generals, or JAGs—as immigration judges in Florida. That idea, floated by Gov. Ron DeSantis, hadn't yet come to fruition. "There is no clear precedent for what DeSantis and the president are doing," Mark Nevitt, a law professor at Emory University who served as a Navy JAG, told me at the time.

"This would be unlawful," added Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles who was an Air Force JAG.

In particular, VanLandingham said, turning military lawyers into immigration judges would likely violate the Posse Comitatus Act, a federal law that bars US troops from participating in civilian law enforcement or "executing the laws," unless otherwise authorized to do so by the Constitution or Congress. It's "frightening," VanLandingham said of the plan, because "the use of military courts to hear civilian cases is the essential component of martial law."

Current and former JAG lawyers have suggested to me that this move could also undermine military readiness, and impair the military justice system. The 600 JAGs the Pentagon may reassign to this function are a substantial proportion of the armed forces' total of 7300 JAG lawyers. JAGs serving as immigration judges are obviously not performing their regular functions, and those functions may end up getting neglected.

I would add that there is a more fundamental constitutional problem here: migrants threatened with detention or deportation - like others threatened with severe deprivations of liberty by the government - should have their cases adjudicated by impartial, neutral judges, not people subject to removal and other discipline by the very executive branch authority that filed the case against them. I think most military lawyers would strive hard to be fair, and I have great respect for the JAGs I have met over the years, including a number of my former students. But the threat of retaliation for decisions the administration doesn't like creates a dangerous incentive structure.

Sadly, this problem is not limited to JAGs who may potentially act as immigration judges. Even in normal times, many immigration cases are heard to by executive branch "judges" subject to removal by the Justice Department. Earlier this year, Trump fired numerous executive-branch immigration judges who the administration believed were not on board with its draconian deportation agenda.

The Due Process Clause of the Fifth Amendment mandates that government cannot deprive people of life, liberty, or property without due process. Detention and deportation are obvious severe deprivations of liberty. And there is no exemption for immigrants or non-citizens. During the Founding era, it was generally understood that the Due Process Clause applies even to non-US citizen pirates captured in international waters. If so, it also applies to migrants within the US.

Adjudication by an official subject to being fired or disciplined for making decisions the executive doesn't like is obviously inimical to due process - whether the "judge" is a military JAG officer or a civilian executive branch employee. As the Supreme Court put it in Marshall v. Jerrico (1980), "[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process." A judge under the control of the executive cannot be genuinely "impartial and disinterested," since he or she has an obvious interest in catering to the preferences of superiors.

Conservatives readily see this problem in areas outside the immigration context, as when executive-branch agencies adjudicate civil penalties for violations of economic regulations. In such cases, they rightly argue there are violations of due process, and of the Seventh Amendment's guarantee of a jury trial in civil cases where significant penalties are at stake. Immigration detention and deportation imperil liberty and property rights at least as much as any economic regulation, and often much more.

Unfortunately, due process is one of a number of areas where the courts have allowed double standards under which immigration restrictions are to a large extent exempt from constitutional restraints that apply to all other government policies. That double standard should be ended. The administration's plan to use military JAGs as immigration judges is a particularly egregious tip of a much larger iceberg.

UPDATE: I have made a few additions to this post.

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[Ilya Somin] Trump Forcibly Returns Russian Dissenters who Fled Putin

[It's a new low in US refugee/asylum policy; simultaneouly unjust and counterproductive.]

Bradley Greeff | Dreamstime.com

The London Times reports that the Trump Administration has been deporting Russian dissenters who fled Vladimir Putin's authoritarian regime, sending them back to Russia, and even apparently helping Russian authorities persecute them:

On August 27, less than a fortnight after President Trump's summit with Putin in Alaska, dozens of Russians were rounded up and deported. Among them was Artyom Vovchenko, 27, a deserter from the war in Ukraine. He is facing a prison sentence of up to decade or could be sent back to the front line.….

Although the deportation of Russians to Russia has accelerated under Trump, the policy began under his predecessor Joe Biden. According to Dmitry Valuev, 46, president of Russian America for Democracy in Russia, an organisation that supports political refugees, deportations under Biden were smaller in number.

He said Russian deportees on those flights avoided returning to Russia by begging for their passports during layovers in China and Morocco and buying flights to alternative destinations.

However, the US now appears to have enlisted the help of the Egyptian government to ensure the migrants are delivered back to Moscow.

The first mass deportation this year took place in June when 47 Russians were put on a flight to Egypt and returned to Russia via Cairo.

On August 27, between 30 and 60 people were sent to Russia on the same route. Some tried to get off the plane in Cairo but were restrained by Egyptian officials and forced to board the onward flight to Moscow, according to Valuev. He believes that US immigration authorities are now working with the Russian FSB [Putin's secret police agency].

I think the June deportation and the August deportation were co-ordinated with the Russian authorities," he said. "The middlemen in the US immigration system and the Russian FSB could not talk to each other directly without approval from higher up. Someone gave that approval."

When the dissidents arrived in Russia, the Russian authorities were given documents relating to their asylum applications in the US. Those dossiers, outlining their political beliefs and criticisms of Putin, could be used to prosecute them back home, campaigners believe.

Khodorkovsky said the treatment of Russian dissidents by the US posed the question of "whether the current administration is prepared to act as a leader of the democratic world".

He said the deportations were particularly troubling given the Russians were "accompanied by documents that can help fabricate criminal cases against them, and all of this at the expense of the American taxpayer".

"This is no longer about democratic leadership — it's about the risk of being seen as an ally of dictators," he said.

As the article notes, abusive treatment of Russian dissenters fleeing Putin occurred under Biden, as well. And I condemned it at the time. But Trump's expansion of the deportations and collaboration with the Russian government is worse.

Beginning soon after Russia's full-scale invasion of Ukraine, I have argued the US and other Western nations should open their doors to Russians fleeing Putin's increasingly repressive regime. It's the right thing to do for both moral and strategic reasons. Morally, it's wrong to bar people fleeing brutal repression and, in some cases, seeking to avoid being drafted into an unjust war of aggression. Strategically, we benefit from depriving Putin of valuable manpower and from enabling the Russian refugees to contribute to our economy and scientific innovation (Russian immigrants and refugees are disproportionate contributors to the latter).  I have also advocated for Ukrainian refugees, whose interest I cannot easily be accused of neglecting.

Of course, under Trump, policy often seems to be driven by a desire to kowtow to Putin and imitate his authoritarian methods. From that standpoint, deporting dissenters back to the regime that oppresses them makes a kind of sense. Just not the kind that any minimally decent person should ever support.

UPDATE: I suppose this is of a piece with Trump's efforts to deport refugees from other oppressive anti-American regimes, such as those who fled Cuba and Venezuela, Iranian Christians, and Afghans who fled the Taliban.(including many who aided the US during the war). But, in one sense, this is even worse, in that US authorities are directly collaborating with the dictatorship in question.

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[Josh Blackman] Does A Supreme Court Justice Have To Move To The Swamp And "Burn The Boats"?

[I've long thought it would be positive if Justices maintained their primary residences outside of D.C.]

CBS News published another excerpt of Justice Barrett's book. She describes the difficult decision to move her family from South Bend. Barrett explains the process of selling her old home was like Alexander the Great's adage about "burning the boats."

I really loved my job on the Seventh Circuit and settled into the rhythm of hearing arguments and writing opinions. But after a few years, life took another turn: the White House counsel, who runs the judicial selection process for the president, invited me on behalf of President Trump to interview for a seat on the United States Supreme Court. Though I was deeply honored, I thought hard about whether to go forward. I knew that if I was chosen, both the confirmation process and the work of serving on the Court would require sacrifices, particularly from my family. Unlike my job on the Seventh Circuit, this one would require a move to Washington, D.C. We had a good life, wonderful friends, and close family in South Bend. We were attached to our old Prairie-style home, which was a short walk to campus for tailgates during football season—a fall family high- light. The move would mean changes for Jesse's career and new schools for the children. We knew that public criticism was sure to come. And if I was nominated and confirmed, there would be a long-term loss of privacy for all of us. Public service was appealing, but the changes to our personal life were not. . . .

Jesse and I had a very brief time to make one of the biggest decisions in our marriage. His position was full support on one condition: if we did it, we had to "burn the boats." The phrase comes from a military strategy used by Alexander the Great, who, after landing on the shores of enemy territory, ordered his men to burn the ships they had come in. With the option of exit gone, there was no choice but to forge ahead, no matter the challenge. Likewise for us. There would be difficulties in store, some we could anticipate and others we couldn't. Jesse wisely thought that it would be unsustainable to face the difficulties—whether in the confirmation process or beyond—if we gave ourselves the option to look back, wishing that we could unwind what we had done. There would be no second-guessing and no turning back to our comfortable life in South Bend.

Justice Barrett has alluded to this decision in her past speeches. That fact that she so wrestled with this choice, and made it with her family, reinforces how devoted she is to her family.

When President Trump released his original Supreme Court short list, I celebrated the fact that there was no names from Washington, D.C. And when Trump picked Gorsuch for his first seat, and Barrett for his third seat, I was quite pleased we got Justices from what Justice Scalia called "the vast expanse in-between."

There is, of course, a flip side to this dynamic. A person who is acculturated in the swamp understands how it works--no one is truly your friend, and people only use you to the extent that you can advance their agendas. A person who is acculturated outside the swamp, and is then transplanted to the swamp, may not understand how that dynamic works. In other words, a person reared in flyover country is more susceptible to the worst forces of the Capital District.

One way to immunize yourself to those forces, of course, is to spend as little time there as necessary. Due to the unique nature of the Supreme Court's calendar, I don't think it is even necessary to move. If my math is right, a Justice only has to be in Court about 20 weeks or so per year.

The Supreme Court generally has no in-person activities during the months of July, August, and September. At the end of September there is the long conference, and two weeks of oral argument. There are two weeks of oral argument in November and two weeks of argument in early December. Thanksgiving and Christmas break are safe. Arguments resume the second and third weeks in January. Most of February is free, and there are about four weeks of argument in February into March. There are usually two weeks of argument at the end of April. There are no arguments in May, though there are weekly conferences. June also has no arguments, but there are weekly conferences, and hand-downs.

In the abstract, a Justice could easily commute for this job, and still spend the vast majority of the calendar at home with their family. Indeed, members of Congress usually maintain their primary residences at home, and commute on weekends. The Supreme Court calendar is far more conducive to commuting.

There are, of course, objections. First, what about cost? Wouldn't it be expensive to fly back and forth, and maintain a separate residence in the District of Columbia? No. The Justice wouldn't need to buy a large home in the D.C. area. Many members of Congress keep a bedroom in their offices. I don't think it would be hard to convert part of a Supreme Court justice's chambers into a living quarter. Morever, I would wager that a year of direct flights between D.C. and a home city would be far less than the cost of mortgage payments for a home in the Beltway. If a Justice followed this approach, they wouldn't need a multi-million dollar book deal to buy a home.

Second, what about the Justice's absence from the building? My understand is that Justice Stevens lived most of the year at his beach home in Florida, and flew up for oral arguments. He communicated with his law clerks by electronic means. As things stand now, I think some Justices see their law clerks far less than average people might assume. Some of the Justices maintain very busy travel schedules, and may not even be in the building when oral arguments or conferences are not scheduled. Indeed, there might be some value in keeping one or more clerk in remote chambers outside of the District of Columbia. There can be more time to focus and fewer distractions. Maybe some clerks will only want the experience of being at First Street. There are eight other Justices to apply to.

Third, wouldn't a commuting Justice be less able to interact with his or her colleagues? Yes, and I see this as a feature, not a bug. As a general rule, when the Justices make deals and compromises, they invariably move the Court to the left rather than the right. Show me a case where a "deal" led to some more conservative result. At least on the current Court, I think isolationism would help originalism. Cases can be discussed at conference.

The biggest benefit, by far, is that the Justice would spend less time in the awful environment that is Washington, D.C. You can't attend a cocktail party in Georgetown if you are attending a potluck dinner. Your children will not have to be exposed to all the types of protestors and other negative influences. Perhaps most importantly, you will never forget what matters in the real world.

As I've often said, an Article III commission is life tenure, not a life sentence. One doesn't have to burn the boats.

I have considered this thought experiment before Barrett's burning boat point. Maybe the next Supreme Court justice will publicly vow to keep his or her family parked at home, and he commute only when necessary.

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[Josh Blackman] Today in Supreme Court History: September 7, 1958

9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.

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[Eugene Volokh] Sunday Open Thread

[What's on your mind?]

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[Josh Blackman] Today in Supreme Court History: September 6, 1983

9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).

The Rehnquist Court (1989)

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[Ilya Somin] The Government's Cert Petition to the Supreme Court in Our Tariff Case - and Our Response

[We agree the Court should take the case and resolve it as quickly as possible, to minimize the harm caused by the illegal tariffs.]

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Earlier this week, the Trump administration filed a petition for certiorari urging the Supreme Court to review the Federal Circuit decision in the case challenging the president's massive "Liberation Day" tariffs, brought by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs (we were later joined by leading constitutional law scholars and Supreme Court litigators Neal Katyal and Michael McConnell). The government also submitted a motion for expedited review.

Today, we submitted a response to the petition, in which we agree the Supreme Court should hear the case and resolve it quickly, so as to put an end to the harm caused by the illegal tariffs as quickly as possible. We previously prevailed in the Court of International Trade, and on appeal in the Federal Circuit, and I hope the Supreme Court - should it take the case - will rule the same way.

Our case is consolidated with one filed by twelve state governments, led by the state of Oregon. Both challenge massive tariffs Trump has imposed under his supposed authority under the International Emergency Economic Powers Act of 1977 (IEEPA).

By now, this litigation has generated thousands of pages of briefs and other filings, and 176 pages of judicial opinions (if I have the count right). But underneath all the legalese, the central issue at stake is actually a simple one: Does our constitutional system give one man - the president - the power to impose any tariffs he wants, in any amount, on any nation, at any time, for any reason? If the answer is "no," then the IEEPA tariffs are illegal.

And the answer should indeed be "no," because the Framers of the Constitution carefully avoided giving the executive the kind of unbridled tax authority claimed by power-grabbing English monarchs, like Charles I. The president cannot wield monarchical power, and letting him do so is an affront to the rule of law.

We have presented an assortment of more detailed reasons why "no" is the right answer to the central question raised by this case: the fact that IEEPA doesn't even mention tariffs and has never previously been used to impose them, that there is no "unusual and extraordinary threat" of the kind required to invoke IEEPA, the major questions doctrine, the constitutional nondelegation doctrine, and more. These points are covered in much greater detail in our various legal filings (see the Liberty Justice Center site for a compilation), and in some of my earlier writings about the litigation.

If the Supreme Court takes the case, there may well be many additional briefs, and other filings. Such materials are important. But it is also essential to remember the deeper principle underlying all the details: the president is not a king, and our Constitution does not grant him monarchical power.

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[Eugene Volokh] Sarah McLaughlin (FIRE) on "Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech,"

I'm delighted to report that Sarah McLaughlin (of the Foundation for Individual Rights and Expression) will be guest-blogging this coming week about her new book. From the publisher's summary:

A revealing exposé on how foreign authoritarian influence is undermining freedom and integrity within American higher education institutions.

In an era of globalized education, where ideals of freedom and inquiry should thrive, an alarming trend has emerged: foreign authoritarian regimes infiltrating American academia. In Authoritarians in the Academy, Sarah McLaughlin exposes how higher education institutions, long considered bastions of free thought, are compromising their values for financial gain and global partnerships.

This groundbreaking investigation reveals the subtle yet sweeping influence of authoritarian governments. University leaders are allowing censorship to flourish on campus, putting pressure on faculty, and silencing international student voices, all in the name of appeasing foreign powers. McLaughlin exposes the troubling reality where university leaders prioritize expansion and profit over the principles of free expression. The book describes incidents in classrooms where professors hesitate to discuss controversial topics and in boardrooms where administrators weigh the costs of offending oppressive regimes. McLaughlin offers a sobering look at how the compromises made in American academia reflect broader societal patterns seen in industries like tech, sports, and entertainment….

And here are the jacket blurbs:

As universities globalize, authoritarian regimes export censorship to American campuses. In Authoritarians in the Academy, Sarah McLaughlin unsparingly exposes how foreign pressure, self-censorship, and administrative complicity threaten academic freedom―challenging the notion that universities remain safe havens for open debate. A timely warning from the front lines of global free expression.
―Jacob Mchangama, Executive Director of The Future of Free Speech and author of Free Speech: a History from Socrates to Social Media

Essential reading for understanding how authoritarians abroad are limiting the freedom to think, teach, and learn at US universities. McLaughlin expertly shows how the sensitivity discourse prevalent on campuses is invoked to serve the censorious impulses of foreign regimes. With authoritarianism ascendant at home, this book is even more relevant.
―Amna Khalid, Carleton College

Authoritarians in the Academy uncovers an alarming truth: oppressive governments are silencing their critics on campus, even those half a world away and in countries that protect campus free speech, including the United States. Beyond the students and faculty members who are directly targeted, the resulting chill stifles others and deprives all campus community members of the opportunity to hear suppressed information and ideas. This book is an urgent call to protect dissidents and dissent in higher education.
―Nadine Strossen, former president, American Civil Liberties Union; author of Free Speech: What Everyone Needs to Know

Authoritarians in the Academy is one of those books that turns over a lot of rocks, exposing the unpleasant things going on underneath… The book deserves a wide readership.
―National Review

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[Eugene Volokh] $7500 Sanctions for Nonexistent Citations in Brief; Magistrate Judge Stresses Cite-Checking Isn't a New Obligation

["Whether a case cite is obtained from a law review article, a hornbook, or through independent legal research, the duty to ensure that any case cited to a court is "good law" is nearly as old as the practice of law."]

From the Report and Recommendation in Davis v. Marion County Superior Court Juvenile Detention Center, filed Tuesday by Magistrate Judge Mark Dinsmore (S.D. Ind.):

In [a] brief, Mr. Sture included two citations that he concedes do not exist….Mr. Sture acknowledged that he was responsible for the errors in the brief that he signed and filed. However, he took the position that the main reason for the errors in his brief was the short deadline (three days) he was given to file it. He explained that, due to the short timeframe and his busy schedule, he asked his paralegal (who once was, but is not currently, a licensed attorney) to draft the brief, and Mr. Sture did not have time to carefully review the paralegal's draft before filing it.

[The Magistrate Judge briefly explained the reason for the unusually short deadline, and noted that, "while Mr. Sture did only have three days to file his response after the motion to compel was filed, he had much more time than that to consider and research the issues that were ultimately addressed in the response brief"; for more on that, read the full opinion. -EV]

Further, while Mr. Sture made much at the hearing about the fact that he filed his response brief literally at the eleventh hour (the brief was, in fact, filed at 11:00 p.m. on the due date), he further represented that he subscribes to LEXIS. It would have taken only a few minutes to check the validity of the citations in the brief using LEXIS before filing it.

Mr. Sture failed to take even that most basic of actions, and therefore did not catch the fact that the brief contained citations that did not exist. The most logical explanation for the citation to non-existent authority is, of course, the use of generative AI to conduct legal research and/or draft the brief. The issue of "hallucinated case[s] created by generative artificial intelligence (AI) tools such as ChatGPT and Google Bard" has been "widely discussed by courts grappling with fictitious legal citations and reported by national news outlets."

The paralegal who drafted the brief did not appear at the hearing. Mr. Sture represented at the hearing that the paralegal did not use generative AI to aid in the drafting of the brief; rather, she told Mr. Sture that she used a legal research product called Fastcase. However, neither Mr. Sture nor the paralegal provided any alternative explanation for the erroneous citations. Further, whether generative AI was or was not used to draft the brief is not particularly relevant to the analysis. There is nothing fundamentally improper in the use of AI tools to draft a brief. Rather, it is counsel's abdication of his responsibility to ensure that the information he provided to the Court was accurate that is the basis for the sanctions recommended….

Courts have consistently held for decades that failing to check the treatment and soundness—let alone the existence—of a cited case warrants sanctions. See, e.g., Salahuddin v. Coughlin, 999 F. Supp. 526, 529 (S.D.N.Y. 1998) (noting that Shepardizing would have led defense counsel to a key case); Brown v. Lincoln Towing Serv., No. 88C0831, 1988 WL 93950 (N.D. Ill. 1988) (imposing sanctions where the attorney filed a claim based on an expired federal statute); Pravic v. U.S. Indus.-Clearing, 109 F.R.D. 620, 623 (E.D. Mich. 1986) (holding that the act of relying on another attorney's memorandum without Shepardizing the cases cited warranted sanctions); Blake v. Nat'l Cas. Co., 607 F. Supp. 189, 191 (C.D. Ca. 1984) (noting that Shepardizing cases already cited would have led to controlling authority).

The advent of modern legal research tools implementing features such as Westlaw's KeyCite and Lexis's Shephardization has enabled attorneys to easily fulfill this basic duty, and there is simply no reason for an attorney to fail to do so. Such has been the view for decades: "It is really inexcusable for any lawyer to fail, as a matter of routine, to Shepardize all cited cases (a process that has been made much simpler today than it was in the past, given the facility for doing so under Westlaw or LEXIS)." Gosnell v. Rentokil, Inc., 175 F.R.D. 508, 510 n.1 (N.D. Ill. 1997). Confirming that a case is good law is a basic, routine matter and something that is expected from a practicing attorney. As noted in the case of an expert witness, an individual's "citation to fake, AI-generated sources … shatters his credibility." See Kohls v. Ellison, 2025 WL 66514, at (D. Minn. Jan. 10, 2025). The same is true even if the fake citations were generated without the knowing use of AI.

Mr. Sture admits that he did not make the requisite reasonable inquiry into the law before filing his brief. Whether or not AI was the genesis of the non-existent citations, Mr. Sture's failure to review them before submitting them to the court was a violation of Rule 11. See Hayes, 763 F. Supp. 3d at 1066-67 ("The Court need not make any finding as to whether Mr. Francisco actually used generative AI to draft any portion of his motion and reply, including the fictitious case and quotation…. Citing nonexistent case law or misrepresenting the holdings of a case is making a false statement to a court. It does not matter if generative AI told you so.") (citations and quotations marks omitted).

The fact that Mr. Sture did not file the brief with the intention of deceiving the court does not excuse his failure to check the citations therein. Whether a case cite is obtained from a law review article, a hornbook, or through independent legal research, the duty to ensure that any case cited to a court is "good law" is nearly as old as the practice of law. As previously noted, the development of resources such as the Shephard's citation system provided lawyers a tool to accomplish that most basic of tasks. {Frank Shepard introduced his print citation index in the 1870s, though other precursor citation series had existed since the early nineteenth century. See Laura C. Dabney, Citators: Past, Present, and Future, 27 Legal Reference Servs. Q. 165, 166 (2008).} It is Mr. Sture's failure to comply with that most basic of requirements that makes his conduct sanctionable.

The Undersigned finds that Mr. Sture violated Rule 11 and that sanctions for that violation are appropriate…. Monetary sanctions ranging from $2,000 to $6,000 have been imposed in similar contexts in the past few years. Given the distressing number of cases calling out similar conduct since the opinions cited above were issued, it is clear that the imposition of modest sanctions has failed to act as a deterrent. {The Undersigned's very quick, certainly non-exhaustive search revealed at least eleven cases noting fictitious citations (to either non-existent cases or non-existent quotations) in federal court filings in the month of August 2025 alone. While most of these cases involved filings by pro se litigants, three of them … involved filings by attorneys.} Accordingly, the Undersigned RECOMMENDS that Mr. Sture be sanctioned $7,500.00 for his Rule 11 violations in this case….

The Magistrate Judge also referred "the matter of Mr. Sture's misconduct in this case to the Chief Judge pursuant to Local Rule of Disciplinary Enforcement 2(a) for consideration of any further discipline that may be appropriate."

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