Eugene Volokh's Blog, page 251

[Josh Blackman] Today in Supreme Court History: October 7, 1982

10/7/1982: I.N.S. v. Chadha was argued.

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[Eugene Volokh] Monday Open Thread

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[David Bernstein] Do Professors Have a Right to Boycott Israeli Institutions and "Zionists"?

I was asked this question at a panel of the recent Israeli American Council national conference, and here is how I responded:

As a rule, the act of boycotting is not constitutionally protected, because it's considered an economic act, not a matter of free expression. That said, as a general matter, anyone is free to advocate a boycott, because advocacy is protected speech. In any event, regardless of constitutional considerations, no one is going to force a professor to submit a paper to an academic conference held at Tel Aviv University. So in that sense, professors are free, for example, to boycott Israeli universities as much as they want.

But a problem arises when a professor is acting on behalf of his institution.

The Boycott, Divestment, and Sanctions (BDS) movement advocates boycotting Israeli universities, which is against policy at all major universities. An individual professor has no right to go against university policy when acting on behalf of the university. The BDS movement also suggests boycotting anyone with ties to Israeli universities, and also anyone who supports what they consider Israeli violations of international law and human rights. By their lights this means, for example, anyone who supports any Israeli military action in Gaza or Lebanon, which they (absurdly) call "genocide" (and did so well before 10/7) Israel's actions. This, in turn, means boycotting almost all Israelis and most American Jews. This would be a violation of state law in many states, could be a violation of the First Amendment at state universities, would violate university policies regarding academic freedom, and likely would violate federal and state antidiscrimination laws.

And I think that's where we need to get tough. If a professor has said that he or she is personally pledged to adopt BDS and academic boycotts of Israel, we should insist that the rule that such a person may not serve as a dean, may not serve on hiring committees, may not serve on disciplinary committees, may not have any role in making decisions where they will have an opportunity to act on their stated principles and discriminate. The reason for this insistence is not because of the individuals' ideology, but because they have announced that in their professional lives they act in ways inconsistent with what would be their responsibilities acting on behalf of the university.

That said, merely stating "I think the BDS movement is a good idea," would not come within this rule, though universities would absolutely be within their rights to expect all faculty to sign a pledge that they will not discriminate based on national origin, ties to a foreign country, or political views before allowing that individual to wield university power.

Finally, I think professors have no right to refuse to write letters of recommendations to their students because they disapprove of their students' political views. There is, I think a way to do this without forcing a professor to write specifically to an organization that he disapproves of. Just tell the student, "I can't write a letter to ___ for you, but I of course will give you a generic letter of recommendation, and you can send it to whomever you wish."

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[Josh Blackman] Today in Supreme Court History: October 6, 2010

10/6/2010: Snyder v. Phelps is argued.

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[Jonathan H. Adler] ACUS Program on Nationwide Injunctions and Regulatory Programs

There has been an apparent increase in the rate at which litigants seek–and courts award–nationwide relief against federal regulatory agencies. The Administrative Conference of the United States recently held two panels to examine the impact that such relief has had on federal regulatory programs. The two panels provide useful background and insights about how nationwide relief, including universal vacatur under the Administrative Procedure Act have affected regulatory agencies and what, if anything, to do about it.

First, on September 27, ACUS held a panel summarizing its recent report on Nationwide Injunctions and Federal Regulatory Programs, featuring the report's authors, Mila Sohoni, Jed Stiglitz, and Zachary Clopton, and moderated by Alan Morrison.

Second, on October 2, ACUS held a panel on the Opportunities and Challenges of Nationwide Relief, featuring Amanda Frost, Alisa Klein, and myself, moderated by Adam White. As readers might expect, I reprised some of my earlier commentary on this subject.

 

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[Eugene Volokh] Curtis Bradley Guest-Blogging About "Historical Gloss and Foreign Affairs: Constitutional Authority in Practice"

I'm delighted to report that Prof. Curtis A. Bradley (Chicago) will be guest-blogging this coming week about his new book; here's the publisher's summary of the book:

A new interpretation of the constitutional law of foreign affairs, as it has been developed throughout its history by presidents and by Congress.

In the more than 230 years since the Constitution took effect, the constitutional law governing the conduct of foreign affairs has evolved significantly. But that evolution did not come through formal amendments or Supreme Court rulings. Rather, the law has been defined by the practices of Congress and the executive branch, also known as "historical gloss."

Curtis A. Bradley documents this process in action. He shows that expansions in presidential power over foreign affairs have often been justified by reference to historical gloss, but that Congress has not merely stepped aside. Belying conventional accounts of the "imperial presidency" in foreign affairs, Congress has also benefited from gloss, claiming powers for itself in the international arena not clearly addressed in the constitutional text and disrupting claims of exclusive presidential authority.

Historical Gloss and Foreign Affairs proposes a constitutional theory that can make sense of these legal changes. In contrast, originalist theories of constitutional interpretation often ignore influential post-Founding developments, while nonoriginalist theories tend to focus on judicial decisions rather than the actions and reasoning of Congress and the executive branch. Moreover, the constitutional theories that do focus on practice have typically emphasized changes at particular moments in time.

What we see in the constitutional law of foreign affairs, however, is the long-term accumulation of nonjudicial precedents that is characteristic of historical gloss. With gloss confirmed as a prime mover in the development of foreign affairs law, we can begin to recognize its broader status as an important and longstanding form of constitutional reasoning.

And the jacket blurbs:

"An instant classic. As the foremost scholar in the country on the Constitution and foreign affairs, Curt Bradley has written the single best book on the subject. Historical Gloss and Foreign Affairs is a must-read for anyone interested in understanding how constitutional law develops, and it could not be timelier."―Michael Gerhardt, University of North Carolina School of Law

"Outstanding. With acuity and nuance, Curt Bradley explains how presidents have come to be so mighty and how Congress can check them when it wishes. What a splendid book!"―Jean Galbraith, University of Pennsylvania Carey Law School

"Historical Gloss and Foreign Affairs is the definitive account of the unique ways that historical practice informs the allocation of constitutional power in foreign affairs, where constitutional text is very often a poor guide to legitimate practice. Its powerful explanation of how historical gloss informs constitutional meaning is also a vital contribution to constitutional theory more generally."―Jack Goldsmith, Harvard Law School

"One of the finest books about the foreign relations law of the United States ever written. Bradley provides a masterful analysis of all the important topics and makes a convincing case about the role of historical gloss in shaping doctrine."―Paul Stephan, University of Virginia School of Law

"An incisive guide to how the Constitution has accommodated dramatic shifts in the conduct of foreign affairs throughout its history―and how it might continue to do so going forward."―Monica Hakimi, Columbia Law School

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[Ilya Somin] Biden Foolishly Decides Not to Extend Legal Status for Migrants Who Entered the US Under the CHNV Private Sponsorship Program

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

 

Yesterday, the Biden Administration decided not to extend the parole term for participants in the CHNV private sponsorship parole program for migrants from Cuba, Nicaragua, Haiti, and Venezuela:

The Biden administration will not be extending the legal status of hundreds of thousands of migrants who were allowed to fly to the U.S. under a sponsorship program designed to reduce illegal border crossings, the Department of Homeland Security announced Friday.

Instead, migrants who have come to the U.S. under the policy will be directed to try to obtain legal status through other immigration programs, leave the country or face deportation proceedings.

The administration first launched the sponsorship program in October 2022 to discourage Venezuelans from traveling to the U.S.-Mexico border by offering them a legal way to enter the country if American-based individuals agreed to sponsor them. It was then expanded in January 2023 to include migrants from Cuba, Haiti and Nicaragua, whose citizens were also crossing the U.S. southern border in record numbers at the time.

As of the end of August, 530,000 migrants from these four countries had flown into the U.S. under the policy, known as the CHNV program, government figures show. They were granted permission to live and work in the U.S. legally for two years under an immigration law known as parole, which presidents can use to welcome foreigners on humanitarian or public interest grounds.

Roughly 214,000  Haitians, 117,000 Venezuelans, 111,000 Cubans and 96,000 Nicaraguans have come to the U.S. so far under the policy, according to government data. The first group set to start losing their parole status this month are Venezuelans, who began coming to the U.S. through the CHNV program in October 2022. The parole periods of Cubans, Haitians and Nicaraguans will not start to expire until early next year.

This decision is simultaneously cruel and counterproductive. It's cruel because the horrific conditions that justified the creation of the program in the first place are highly unlikely to end in the next year or two. Cuba, Venezuela, and Nicaragua will likely still be ruled by brutal socialist dictatorships. And Haiti will likely still suffer from endemic violence. The statute that empowers the president to grant parole states it can be given "for urgent humanitarian reasons or significant public benefit." The "urgent humanitarian reasons" justifying it in this case are highly unlikely to end anytime soon. The same goes for the "significant public benefit" of reducing disorder at the border. CHNV reduces illegal migration by making the legal alternative easier and more widely available. Instead of curtailing the program, Biden should expand it.

The Biden administration did (rightly) extend the parole period for Afghan and Ukrainian participants in similar parole programs. The case for CHNV participants is equally compelling.

Moreover, the predictable consequence of this decision—unless it is reversed—will be to create a larger population of illegal migrants. Migrants from Cuba, Nicaragua, and Venezuela can't be deported, because those countries won't accept US deportees. And most are unlikely to leave on their own, because even living in the US illegally is less bad than returning to the terrible conditions their home countries. Haiti does accept US deportations, but many Haitians are likely to remain illegally, nonetheless.

Losing legal status will obviously be bad for the migrants themselves. But it's also bad for the US economy and society. Migrants with legal status can work at a wider range of jobs, and become more fully integrated into our society. That makes them more productive, increasing their economic and fiscal contributions. The Congressional Budget Office estimates increased migration since 2021 will reduce the federal budget deficit by almost $1 trillion over the next decade. CHNV migrants contribute to that, and can contribute more if we extend their legal status.

Some CHNV migrants are likely to be able to get temporary or permanent legal status by other means; for example, Haitians and Venezuelans who entered the US before before June 4, 2024, and July 31, 2023, respectively, are eligible for Temporary Protected Status (TPS). But may are likely to be left out in the cold, either because they don't fit the relevant categories or because they lack the skills necessary to navigate the labyrinthine immigration bureaucracy.

The administration recently temporarily shut down CHNV, citing largely bogus concerns about fraud. It then restarted it, with a few additional rules.

The program has also been challenged in court by various GOP states. The legal challenges are based on badly flawed arguments. Earlier this year, a conservative district judge ruled the states lacked standing to bring the case, which is now on appeal).

In sum, the net effect of Biden's decision will likely be to harm migrants fleeing violence and oppression, damage the US economy, and create more disorder. Great job, Mr. President!

Of course the real motive for this step may be political, trying to give Kamala Harris a boost in the upcoming election. If so, I doubt it will succeed. Swing voters are generally ignorant of policy details—even more so than committed partisans, and few are likely to even be aware of this decision, much less change their votes because of it. The kinds of intensely nativist voters who do know about the shift and support it are highly unlikely to vote for Harris, regardless.

Admittedly, I have not seen any good polling data on this particular issue. And it's important to guard against the temptation to think that one's own policy preferences are necessarily popular (I know all too well that many of mine are not). Perhaps new surveys will prove me wrong about the political effects of this step, though I doubt it.

Since the beginning of the Uniting for Ukraine program, on which CHNV is based, I have argued that Congress should give participants in these programs permanent legal status. They should pass a modified version of the Venezuelan Adjustment Act (sponsored by GOP Rep. Maria Elvira Salazar), and similar legislation to cover the Ukrainians, Afghans, and others. The fate of these people should not be left up to the whims of whoever occupies the Oval Office. Sadly, however, such legislation is highly unlikely to pass before the November election.

If Trump wins, it will almost certainly not pass afterwards, either. There was a time when the Republican Party would have (rightly) pilloried Biden for this betrayal of refugees from socialist oppression. Today's GOP, sadly, prioritizes nativism over anticommunism. Many also favor nationalist economic policies that resemble socialist ones.

If Kamala Harris prevails, I hope she might reverse Biden's misguided decision on parole extension, and promote adjustment acts that will resolve the issue permanently.

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[Josh Blackman] Today in Supreme Court History: October 5, 1953

10/5/1953: Chief Justice Earl Warren takes the oath.

Chief Justice Earl Warren

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[Samuel Bray] Lackey v. Stinnie: What, Exactly, Is a Preliminary Injunction?

Next week the U.S. Supreme Court will hear oral argument in Lackey v. Stinnie, a case that presents two questions about whether and when a party who receives a preliminary injunction may recover attorneys' fees as a "prevailing party" under 42 U.S.C. § 1988. An en banc decision of the Fourth Circuit said yes to prevailing party status for the plaintiff who secured a preliminary injunction before the challenged statutory provision was repealed.

The case is interesting for many reasons. One is the unusual split among the amici. The government amici, including conservative states and the Biden administration, lined up in support of the petitioner (arguing that the PI-receiving plaintiff was not a prevailing party). The public interest organizations lined up in support of the defendant (arguing for prevailing party status). That might not seem surprising–after all, fee shifting is an important part of the latter group's business model.

But below the surface two points are worthy of note. One is that many challenges to rules and statutes, at least at the federal level, are now led by coalitions of states. In this case, the states revert to form as paradigmatic defendants, instead of being challengers. The other point of note is that the public interest organizations that engaged in the case, although from across the political spectrum, tended to be more conservative ones. Attorneys' fees help drive public interest litigation, and the valence of a substantial portion of that litigation has shifted remarkably from what the amici would have looked like, say, ten years ago. And, of course, it will shift again.

More interesting, though, are the alternative visions of the preliminary injunction sketched out by the parties and their amici. The petitioners argue that the nature of the preliminary injunction is inconsistent with treating it as a judgment or final determination on the merits. No one has prevailed yet. The respondents treat the preliminary injunction as a judgment, a full determination of the merits. And they need to treat it that way so it is the judicial action itself, not the legislature's response to it, that is decisive.

I don't think it's really open to question who is right on this point. The petitioners (and the SG) correctly state the law of the preliminary injunction, and the respondents do not correctly describe what it is. I understand that one could come at this case in terms of incentives for strategic behavior, thinking about the political economy of public interest litigation and legislative responses. And that could open up a range of normative judgments (and that is the approach taken by some amici supporting the respondents). But if we approach it from the perspective of what a preliminary injunction is, and what consequences should follow from it, there is no room for doubt.

In a paper called The Purpose of the Preliminary Injunction, I work through the characteristics of the preliminary injunction and what it is for. Those characteristics, or design features, include that the preliminary injunction is temporary (with its outer bound demarcated by the litigation), that it decides nothing, and that it is based on partial evidence (pp. 8-15). Every single one of these design features fits the argument of the petitioners, and none of them is consistent with the argument of the respondents. The purpose of the preliminary injunction is not to decide the merits, but to protect the court's ultimate remedial options (pp. 34-51). Again, that strongly supports the argument that someone who obtains this interim measure is not a prevailing party.

A few further notes on the briefs:

The petitioners note that some circuits apply a sliding scale to preliminary injunctions, allowing in some cases a lesser showing on the merits if there is a very strong case on irreparable injury and the balance of hardships. That approach has strong support in traditional equitable principles (and, by the way, it was the favored approach of Judge Friendly). The respondents' view of a preliminary injunction is inconsistent with this traditional equitable approach; indeed, it threatens the existence of the sliding scale. If the Court were to decide for the respondents (which I think is unlikely), and the Court were not careful in how it treated the merits factor in the preliminary injunction test, it could wipe out the sliding scale used in one form or another by at least three circuits. And that is so even though that question has not been briefed and adequately presented to the court. The petitioners note that the statutory language refers to "the prevailing party" and suggest that supports their position. Just to go a little further: although unusual, there can be cross motions for preliminary injunctions, and both preliminary injunctions can be granted (e.g., imagine contestation of property ownership and both claimants are forbidden to access it during the litigation). Similarly, a court could grant a preliminary injunction that constrains the defendant, while also placing conditions on the plaintiff. Now this is not a decisive argument for petitioners; one could just retreat to case by case decisionmaking. But the point is that once we see the litigation-stabilizing function of the preliminary injunction, we will be less likely to fall into thinking that getting one makes you a prevailing party. To allow plaintiffs who get preliminary injunctions to receive attorneys' fees skews the incentives toward seeking injunctions rather than damages, since preliminary injunctions are available only for claims for equitable final relief (Grupo Mexicano). The respondents' argument about the broad discretion to require costs in equity (e.g., p. 21) does not need to be resolved in this case. In this case the question is about the interpretation of Section 1988. A plaintiff who gets a preliminary injunction has a sharply reduced incentive to settle. (For a model showing this, see Thomas D. Jeitschko & Byung-Cheol Kim, Signaling, Learning, and Screening Prior to Trial: Informational Implications of Preliminary Injunctions, 29 J. L. Econ. & Org. 1085 (2013).) That effect would be exacerbated by a victory for the respondents in this case. If plaintiffs can get a preliminary injunction, have the provisional policy win they want, drag their feet during the rest of the litigation, and get attorneys' fees if the defendant eventually gives up and makes a legislative change–then we will get even less incentive for plaintiffs who get a PI to settle or proceed expeditiously with the litigation. Where petitioners make a concession about the "rare case" that might generate prevailing party status (p. 31), I see no need to make a concession, since such a case is a misuse of the preliminary injunction. If a court wants to decide the case, it can. It just needs to accelerate the trial of the merits under FRCP 65(a)(2)–if all the evidence and argument are there, go ahead and decide the merits, and then the plaintiff, if successful, has prevailed. There is no reason to cram a merits determination into a preliminary injunction. Its purpose is not merits determination, but rather preserving the ultimate remedial options of the court (as explored at length in The Purpose of the Preliminary Injunction).

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

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

Victory! Earlier this year, IJ sued Oregon agricultural officials for requiring small dairy farms with only a handful of animals to install unnecessary and ruinously expensive industrial-grade wastewater management systems—a favor to big dairy farms that wanted to put their smaller competitors out of business. This week, we're happy to announce that the Oregon Dept. of Agriculture has rewritten its rules so that the requirement applies only to medium and large operations. Click here to learn more.

Prediction market company Kalshi wants to list futures contracts on which party will control Congress, but CFTC prohibits the contracts as against the public interest. District court: CFTC decision went beyond its statutory authority, Kalshi can go ahead. CFTC: Can we have a stay pending appeal, lest these contracts corrupt the election? D.C. Circuit: No dice. The "question on the merits is close and difficult," but the CFTC doesn't have any good evidence that listing these contracts will cause harm while we consider the appeal. New Jersey resident worked for DraftKings, whose HQ is in Massachusetts. But then he headed west to join competitor Fanatics in California. DraftKings: Hey, that violates your noncompete! Ex-employee: Too bad I'm in California now, which bans noncompetes! DraftKings: But the noncompete says Massachusetts law controls and we're suing you there! District court: Hard to argue with that. No working for a competitor for a year after quitting. First Circuit: You know, noncompete law could be a lot worse than it is in Massachusetts. Affirmed. Residents of Buffalo, N.Y. can judge for themselves whether then-Governor Andrew Cuomo's "Buffalo Billion" initiative turned that town around or shoveled taxpayer dollars into a Josh Allen-sized boondoggle. But some of the characters involved in one arm of the project can breathe easier as the Second Circuit vacates their convictions for wire fraud and conspiracy (but not making false statements) pursuant to their 2023 trip to SCOTUS. Now-former principal at school with mostly black and Hispanic students criticizes the NYC Dept. of Education for funding only half as many sports teams as the predominantly white school that shares the same Brooklyn campus. Soon after, she finds herself under investigation over an anonymous (and apparently baseless) complaint that she had tried to recruit students to a communist organization. Can she sue the Dept. for violating Title VI? Second Circuit: Sure can. Case undismissed. Bloomberg and Dow Jones & Co. file FOIA requests with the U.S. Postal Service, seeking disclosure of aggregated, anonymized change-of-address data to produce reports about movement trends in the United States—data that reporters have obtained in the past. USPS: We were actually hoping to license that data as part of a commercial product that costs $277k for four years of access, so we're withholding it under a FOIA exemption. Second Circuit: Which they are allowed to do. The Postal Reorganization Act contains a FOIA exemption for "information of a commercial nature." Unarmed teen passenger flees 2018 traffic stop on foot; a Louisiana state trooper shoots him in the back at point-blank range, paralyzing him from the waist down. The trooper failed to turn on her bodycam, but a private security camera captures the events and provides a more definitive account than her "wildly inconsistent" statements and "lies." Fifth Circuit (unpublished, per curiam): To a jury this must go. No qualified immunity. [N.B.: The trooper got six months' probation after pleading guilty to a misdemeanor but has since had that charge expunged.] Responding to complaint that Cincinnati, Ohio man had recently threatened his neighbors, police officers approach man's house, open unlocked door leading to second-floor apartment, proceed unannounced to the second floor, encounter the man (armed with a rifle), and shoot him dead. In 2015. Sixth Circuit (2020): No QI on the claim for unlawful entry into the man's home. Sixth Circuit (2024, unpublished): No QI on the claim for unlawful entry into the man's home. RFK Jr. really, really wants to be removed from the Michigan presidential ballot and the Michigan Secretary of State really, really wants him to stay on. Sixth Circuit (unpublished): But he tried his luck in state court and lost, so he doesn't get a do-over here. Besides, it's hard to see how he'll be irreparably harmed by inclusion on the Michigan ballot when he's simultaneously fighting against removal from the New York ballot. Dissent: The Secretary of State illegally added him back to the ballot after the deadline for finalizing the candidates, and we all know why she did it. The FDA sues doctors who create and administer a stem cell mixture called stromal vascular fraction, alleging that the mixture, derived from a patient's own fat tissue, is a "drug" within the meaning of the Food, Drug, & Cosmetic Act. The doctors argue that it isn't a drug or, if it is, it is exempt under an FDA regulation called the "same surgical procedure" exception, which permits tissue to be removed from a patient and reimplanted in the same procedure. The district court ruled for the doctors. Ninth Circuit: Reversed! The cells are definitely a "drug" under the broad definition of that term, and they're too highly processed to fall within the exemption. This episode of Bluey is called "Did the district court err by sanctioning a Montana probation-officer defendant in an excessive-force case because other probation officers stepped on a bunch of rakes and accidentally deleted the surveillance footage of the incident"? Ninth Circuit: Yes, it erred. The court should have proceeded under Rule 37, not its inherent authority, and no one involved in the video deletion acted with the requisite level of willfulness to merit the sanctions the district court imposed (establishing liability as a matter of law). Utah passes an age-verification law for viewing online pornography. But it doesn't want to defend the law in court, so it instead creates a private cause of action making publishers liable to an individual for damages resulting from a minor's access to the material. Publishers and First Amendment advocates sue, alleging a violation of their First Amendment rights. Tenth Circuit: Dismissed! The state's procedural shenanigans work, and you'll have to wait to be sued before you can vindicate your First Amendment rights. Dissent: The Commissioner of the Utah Department of Public Safety, which oversees Utah's Mobile Driver's License program, has a sufficient connection to the law that he can be sued. Black pastor in Childersburg, Ala. is watering his (white) neighbors' flowers while they're out of town. Three police officers responding to a 911 call demand ID, the pastor refuses, and they arrest him after an argument. When pastor sues, district court grants qualified immunity on premise that officers had probable cause to arrest. Eleventh Circuit (unpublished): Guys, we've been over this. Just last year we explained that Alabama law lets police with reasonable suspicion ask for a person's name, address, and explanation of his actions—all of which the pastor gave you—not to demand a physical ID. Reversed and remanded for trial. And in en banc news, the Fifth Circuit will not reconsider its ruling that tanker-truck drivers transporting crude oil entirely within the state of Texas are engaged in "interstate or foreign commerce" as defined by the Motor Carrier Act of 1935. Five-judge dissental: It's true that "interstate" = "intrastate" under the Commerce Clause, but we're talking about a statute here, and interstate means interstate. (We inveighed against the court's still-undisturbed precedents on the podcast.) And in amicus brief news, IJ is weighing in on the age-verification debate currently at the Supreme Court in Free Speech Coalition v. Paxton . The Fifth Circuit previously held that Texas's age-verification law should be reviewed with only rational-basis scrutiny because it's aimed at protecting minors. Plaintiffs argue that it should be reviewed with strict scrutiny because it burdens adults' access to constitutionally protected speech. Overlooked in this debate, we argue, are the folks who are actually regulated under the law: Publishers who face civil liability if they publish protected material, even if no minor ever views it. Focusing on them makes clear why the Fifth Circuit got it wrong and why it's so important for the Court to get it right.

New case! IJ client Daniel Horwitz is a constitutional litigator, who, charmingly, maintains a humble newsletter focused on the Tennessee Court of Appeals. (Subscribe today!) Less charmingly, Daniel is subject to a gag order in the Middle District of Tennessee barring him from talking to the media or on social media about any of his many cases against a private prison company. He would like to describe, for instance, how the prison is violating its gov't contracts and ignoring violence that frequently results in wrongful deaths. And while Daniel has repeatedly asked the court to address his First Amendment arguments against the local rule that allowed the gag order, it's been over two years. So this week, he joined with IJ to file a federal lawsuit. "The court cannot silence Daniel simply because he's criticizing a government contractor," says IJ Attorney Jared McClain. "Public interest litigation requires public discussion." Click here to learn more.

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