Eugene Volokh's Blog, page 261

[Eugene Volokh] Court Upholds Conviction for Threatening Attack on the FBI

From Friday's U.S. v. Miah, decided by Judge Felipe Restrepo, joined by Chief Judge Michael Chagares and Judge Arianna Freeman:

In September 2020, FBI Special Agent Nick Edquist and an officer from the Joint Terrorism Task force went to Miah's apartment to interview him about his comments on several social media platforms. Miah's comments drew the FBI's attention because they suggested he believed in a "particular extremist ideology," consisting of a "vengeful, violent form of Islam." {Agent Edquist testified at trial that the tweets included incendiary language encouraging violence against Christian-majority countries, an "explicit call to attack Jews," and the glorification of the September 11, 2001 terrorist attacks. The FBI's physical surveillance revealed that Miah frequently went alone to the local shooting range.} Miah was not cooperative during the initial interview and in fact filed a complaint against the FBI. He agreed to another interview the following day but was again uncooperative, refusing to answer the agents' questions about his online conduct.

On October 8, 2020, Miah created a Twitter account named after Agent Edquist's wife that contained pictures of her and her personal information, including her approximate age, place of employment, education, and religion. The next day agents executed a warrant to search Miah's home and devices. {The search of the devices revealed that Miah had gone to gun stores to research different types of weapons, "specifically weapons that had suppressors on the gun and things like that." The devices contained photographs of assault rifles and Miah dressed in a manner that appeared to the agents as emulating ISIS fighters. They also contained multiple pictures of the Tsarnaev brothers, who committed the 2013 Boston Marathon terrorist attack.}

Miah admitted to creating the tweets but claimed they were a joke and that he would not post such content again. He instead immediately resumed creating tweets featuring Agent Edquist and his wife, as well as tweets providing personal details about Agent Edquist's supervisor.

In December 2020, Miah created a second Twitter account with the name "Federal Intelligence Service" and a profile photo of a mock FBI seal. It was on this account that Miah posted the statements that underlie the charges for which he was convicted. On December 27, 2020, Miah tweeted, "Nick, Dave, Mike, the whole bureau, the deed will be done at a time which is the most opportunistic for me, chosen by myself." He followed with, "Currently eating pasta and watching videos of the second plane hit the south tower."

The next day, Miah tweeted, "The zero hour is approaching." On December 29, 2020, Miah tweeted, "38° 53′ 42.7″ N, 77°1′ 30″ W," which are the coordinates for the FBI headquarters in Washington, D.C. The following day, he posted, "Rasheed, Dave, Nick, Mike …. how's your investigation going? Things are looking 'bright' in 2021. Did you find the Saudi passports?" Later he tweeted, "2001-2021 is 20 years. An entire generation, yet men like me still exist and pop up into existence. Next time you come in cowboy with the crew, the hardwood will collapse beneath your feet." Finally, on December 31, 2020, Miah tweeted, "Remember boys, the more eyes on me, the less eyes on others. Regardless, yellow tapes will flow."

Miah was convicted of making threats, and the court affirmed:

A person violates Section 875(c) by "transmit[ting] in interstate or foreign commerce any communication containing … any threat to injure the person of another." Miah argues the tweets that do not identify a natural person as their target—such as "the zero hour is approaching" or the coordinates of the FBI headquarters—cannot be lawfully charged as threats under Section 875(c). This argument overlooks that the context and totality of circumstances of the communications must be considered when assessing whether a threat has been alleged. The indictment provided both context and circumstances by describing Miah's retaliatory targeting of Agent Edquist's wife, his inclusion of the names of the investigating agents in his tweets, the contents of his devices revealing an "interest in weapons, his fascination with violence, and his strong animosity toward law enforcement," and his recurring surveillance of Agent Edquist's residence and the FBI Pittsburgh Field Office.

Thus, the District Court properly ruled Miah's tweet "the zero hour is approaching," which it found indicated "the occurrence of a significant event," could be deemed a threat by a reasonable jury given that it was posted the day after the tweet referencing the September 11, 2001 terrorist attack. Similarly, the Court properly concluded the coordinates of the FBI's headquarters, when viewed through the lens of Miah's conduct and preceding tweets, could be found to "constitute[ ] a threat to injure agents at that location." It was also correct to conclude that the tweet telling the "boys," who were agents named in a prior tweet, that "yellow tapes will flow," which appears to reference crime scene tape, could reasonably be interpreted as a threat to inflict harm. In sum, we agree that the charges alleging a violation of Section 875(c) were properly put to the jury.

We also conclude a reasonable jury could find Miah's tweets communicated "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" and therefore constituted true threats under First Amendment jurisprudence. As with violations of Section 875(c), we look to Miah's earlier conduct to "contextualize the meaning" of his tweets. As discussed, the conduct outlined in the indictment established Miah's antipathy for specific agents, as well as his animosity towards law enforcement in general. It also demonstrated Miah's captivation with weapons and terroristic-style attacks. We therefore agree with the District Court that a reasonable jury could find Miah's contextualized tweets expressed a serious intent to harm the agents and hold that threats targeting FBI agents generally are sufficiently particularized to qualify as true threats….

The court also rejected other claims, including related to the closure of parts of voir dire and to the admission of evidence. The court also upheld the district court's increasing Miah's sentence in part because "the offense involved any conduct evidencing an intent to carry out such a threat":

The District Court found the following overt acts were directly and substantially connected to the threats of conviction:

The Defendant researching the agents as well as their families, where their family members for instance worked, even their pets, traveled to the vicinity of one of the agent's residences, traveled to the vicinity of the agents' place of employment, the Pittsburgh Field Office of the FBI at various times of the day and night, researching weapons, explosives and violence, and then on one instance going to a shooting range on the day he made an actual threat or post.

In making this finding, the Court recognized that Miah was convicted of threatening to injure the named agents as well as those located in the FBI's headquarters by executing terroristic attacks. Because the conduct was directly connected to the threatening communications, the Court did not err in applying this enhancement.

Jeffrey M. Smith of the Justice Department argued on behalf of the government.

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[Eugene Volokh] Free Speech Unmuted: I Know It When I See It: Free Speech and Obscenity Laws

Jane Bambauer and I discuss the various rules the Court applies in obscenity cases and the forthcoming Free Speech Coalition v. Paxton decision, which deals with "obscene-as-to-minors" material (not to be confused with child pornography). Fun fact: Associate Justice Potter Stewart, who wrote the "I know it when I see it" line in a 1964 obscenity opinion, later concluded that any such obscenity test would be unconstitutionally vague.

 

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Josh Blackman] Judge Reed O'Connor's Remarks On Forum Selection and "Judge Shopping"

["Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges—only judges doing their level best to faithfully apply the law to reach the correct decision."]

I am pleased to pass on these remarks from Judge Reed O'Connor (NDTX). Yesterday, he opened the Federalist Society's 2024 Texas Chapters Conference in Fort Worth. Judge O'Connor addressed the topic of forum selection and "judge shopping," as well as and recent proposals from the Judicial Conference.

Welcome to the Fort Worth Division of the Northern District of Texas. Fort Worth is honored that the Federalist Society chose to hold its annual Texas Conference here.

I am confident you will find that Fort Worth is a very welcoming city. And, no, I don't mean for judge-shopping, as some like to think. I mean Fort Worth truly has a welcoming spirit.

For those who have seen the movie 12 Mighty Orphans, that orphanage was located in southeast Fort Worth. The book the movie was based on described "Fort Worth . . .  as one of the friendliest places to downtrodden children in the hardest years of the Depression." That welcoming spirit remains just as strong today.

There is a lot of resilient history in this corner of Texas. Fort Worth was established in 1849 as an army outpost on a bluff overlooking the Trinity River. It has come a long way since then as it is now the 11th largest city in the United States—having just passed Austin—and was one of the fastest growing cities in the country last year.

Despite its size, Fort Worth resiliently maintains its small-town charm and original western heritage, as you can see in its historic Stockyards entertainment district and the Sid Richardson Museum in Sundance Square.

At the same time, Fort Worth also features first class cultural experiences in its incredible museums that boast works of art from the Renaissance to the 21st Century, including Michelangelo's very first painting, which hangs in the Kimbell Art Museum. That cultural experience also includes the world class Bass Performance Hall.

Situated in the heart of Fort Worth is the federal courthouse—a beautiful Depression-era WPA construction project that has been the venue for many historic cases.

In the exact courtroom in which I preside, former Texas Governor Coke Stevenson sued then-Congressman Lyndon B. Johnson over the primary results for the 1948 Democratic Senate primary. This decision was ultimately appealed to the U.S. Supreme Court where Justice Black ruled in Johnson's favor. And the rest is history, as Senator Johnson became Majority Leader, Vice President, and then President.

In the same courtroom, Judge David Belew, a World War 2 soldier who stormed the beaches of France and was shot on D-Day, presided over the longest aviation trial in U.S. history—spanning 14 months.

And in this courtroom Judge Terry Means handed down the first federal death sentence in the nation after its reinstatement as a punishment under the 1994 Federal Death Penalty Act.

These kinds of high-profile cases continue to be filed in this Division. Some of those cases impact the topics that will be debated today. Nothing too controversial, mind you—things like the line between governmental power and parental rights, First Amendment cases, and cases highlighting the tension between federal power and the power of border states.

Of course, decisions in cases like these often result in outside efforts to undermine public support for the judiciary from a host of commentators, so-called watchdogs, and even elected officials. But by design, federal judges were given life tenure so that the passions of the public would not influence them. It doesn't mean judges are immune from criticism. In fact, don't become a judge if you are uncomfortable with criticism.

But sometimes these decisions lead to threats and intimidation tactics directed at the presiding judges, or other acts designed to undermine the legitimacy of judges. We will hear from distinguished panelists today who will discuss the difference between legitimate criticism versus efforts to undermine the judiciary, along with the duty placed on those in the legal profession to defend the judiciary, and why that is important.

This discussion is critically important when these external efforts to undermine judges spark internal pressure within the judiciary. Just this year, in response to political pressure that named specific judges, the Judicial Conference took aim at single-judge divisions, especially those in Texas. Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges—only judges doing their level best to faithfully apply the law to reach the correct decision.

Notably, the proposal did not target longstanding forum-shopping—or as Judge Jim Ho put it, forum-selling—in bankruptcy courts or patent venues. Such cases impact our economy in the billions of dollars and were recently highlighted only due to an embarrassing scandal. Yet the practice in these areas remain untouched by reform efforts given the absence of comparable political pressure from commentators and political officials.

Instead, the proposal focused entirely on remedies the Department of Justice, the world's largest law firm and regular forum shopper, complained of—that is, injunctions and vacaturs. The reason for this was clear: the Judicial Conference was responding to external political criticism.

Thankfully, judges and members of our profession pushed back, ensuring that heavier access-to-justice burdens aren't imposed on citizens in our district based solely on where they live. But this pressure remains a constant and will not ease up anytime soon. Indeed, it appears that the Judicial Conference Rules Committee intends to adopt a procedure mandating the case assignment guidance.

During such times, we are especially fortunate to be part of organizations like the Federalist Society, whose main purpose is to sponsor fair, serious, and open debate about protecting constitutional freedoms and the role of the courts in saying what the law is rather than what they wish it to be. I think you will all agree that this purpose will be fulfilled by the great program today.

In our current climate of efforts to undermine the judiciary, and when law schools and law professors across the country increasingly teach students to presume malicious intention on the part of judges with whom they disagree, there is no place more resilient to host critical conversations about the judiciary than at this conference, in this circuit, and in this division.

Thank you all for being here in our great city, and for your continued commitment to the judicial system and to the people of the United States of America.

Welcome to Fort Worth!

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[David Bernstein] Comparing Class of 2027 to Class of 2028 Demographic Data is Tricky (UPDATED)

[I have updated and basically rewritten the post in light of new information that allows me to explain matters much more clearly, I think.]

This year's entering class is the first since admissions decisions were constrained by the Supreme Court's ban on racial preferences in the SFFA case, and lots of interesting data have been coming out. Some elite universities like Yale, despite swearing in an amicus brief that there was no way to retain racial diversity without using preferences, have seen their "underrepresented minority" demographics barely change. Others, like MIT and Johns Hopkins, have seen their Asian American populations increase with a concomitant decrease in Hispanic and Black matriculants and little change in the percentage of white students.

For those interested in how SFFA has changed college admissions stats, one pitfall to watch out for is that universities do not always report the data consistently. One way to report the data, preferred/required by the government, is to assign each student only one racial or ethnic (Hispanic) classification, regardless of how many boxes the student checked. My understanding is that if a student checks white and Hispanic (an ethnic classification), he is reported as Hispanic. If he checks two racial classifications, he is reported under a "multiracial" category. The total should add up to 100%, give or take a minor rounding up or down.

The other way to report the data is to count every student by every box they check. Thus, a student who checks both white and black will be reported in both the white and black percentages, instead of in the multiracial classification. In this context, someone with, say, Native American, black, Hispanic, and white ancestry would "count" for all four categories. As a result, the percentages will add up to over 100%.

Some universities that previously reported their data to the public (as in press releases and admissions material) the first way, one classification per student, are now reporting it the second way. So, for example, a school that reported 10% black students last year and reports 10% again, may in fact have, say, only 7% if they had reported the data the same way, along with 3% of students who previously would have been reported as multiracial rather than black.

Johns Hopkins seems to be one of the few institutions that have posted the demographic data in both formats for both 2023 and 2024. As you can see below, how a university reports the data can make a significant difference in the relevant percentages, but the basic story is the same either way: Hispanic and Black matriculants fell sharply, white matriculants were pretty steady, and Asian American matriculants rose sharply. And kudos to Hopkins for transparency.

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[Eugene Volokh] Prof. Paul Robinson & Jeffrey Seaman Guest-Blogging About "Confronting Failures of Justice: Getting Away with Murder and Rape"

I'm delighted to report that Prof. Paul Robinson (Penn) and Jeffrey Seaman will be guest-blogging this coming week about their new book. Here's the publisher's summary:

Most murderers and rapists escape justice, a horrifying fact that has gone largely unexamined until now. This groundbreaking book tours nearly the entire criminal justice system, examining the rules and practices that regularly produce failures of justice in serious criminal cases. Each chapter outlines the nature and extent of justice failures in present practice, describing the interests at stake, and providing real-world examples. Finally, each chapter reviews proposed and implemented reforms that could balance the competing interests in a less justice-frustrating manner and recommends one—sometimes completely original—reform to improve the system.

A systematic study of justice failures is long overdue. As this book discusses, regular failures of justice in serious criminal cases undermine deterrence and the criminal justice system's credibility with the community as a moral authority. The damage caused by unpunished crime is immense and, even worse, falls primarily on vulnerable minority communities. Now for the first time, students, researchers, policymakers, and citizens have a resource that explains why justice failures occur and what can be done about them.

And the jacket blurbs:

Relying on a truly astounding number of case studies, criminological reports, reviews of federal and state laws, and opinion surveys, Confronting Failures of Justice is a mammoth yet incisive documentation of the myriad ways our legal system undermines the goal of ensuring people who commit crimes receive the punishment they deserve. This book's thoughtful compendium of how to rectify these injustices provides policymakers with a recipe for reform that is both eminently feasible and theoretically robust.

—Christopher Slobogin, Milton Underwood Professor of Law, Vanderbilt University; author of Rehabilitating Criminal Justice: Policing, Adjudication and Sentencing

Confronting Failures of Justice is quite simply a tour de force. The writing is compelling, and the subject is urgent. It offers a model of clear thinking about the justice system, carefully assesses where and why justice fails, and presents an important argument about the urgency of doing justice. It is sure to become a classic.

—Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College

This is the most original and fascinating book on criminal law I have read in years. I learned something important on every page. Liberals and conservatives alike should be receptive to these novel ideas about how serious crime might be reduced.

—Douglas N. Husak, Distinguished Professor of Philosophy and Law, Rutgers University; author of The Philosophy of Criminal Law

When a person shouldn't be punished, or is punished too much, the injustice done is easy to see. Harder to see is the injustice at work when those who should be punished are never found, their crimes never solved. Robinson, Seaman and Sarahne do a great service bringing this invisible injustice to light, identifying its many causes, and offering commonsense proposals for reform. Highly recommended.

—Stephen P. Garvey, A. Robert Noll Professor of Law, Cornell Law School

Criminal-law icon Paul Robinson and his esteemed colleagues have produced a text that flips the threadbare contemporary-academic discussion on its head—asking whether a modern-liberal society that seeks to improve the life and circumstances of all its members must take as seriously its moral obligation of imposing just punishment on wrongdoers as it does avoiding unjust punishment on the innocent. So often modern-intellectual discourse is an echo chamber of rut digging commentary that ignores multitudes of alternative paths. Confronting Failures of Justice systematically explores those other avenues. Kudos for producing such a thoughtful analysis.

—Robert Steinbuch, law professor, University of Arkansas at Little Rock

This comprehensive, exhaustively researched book by Paul Robinson, Jeffrey Seaman, and Muhammad Sarahne probes the issues facing criminal justice today, primarily in the English-speaking world. Highly recommended for everyone committed to a just society.

—George P. Fletcher, Cardozo Professor of Jurisprudence, Columbia University School of Law

Confronting Failures of Justice is comprehensive and thoroughly researched, but wears its erudition lightly, offering a vivid and highly readable account of criminal law's failings—and possible ways to mitigate or avoid them—that will engage and inform academics and general readers alike. With numerous compelling real-world illustrations, this book surveys a wide range of grave and troubling injustices, yet leavens its tragic tales with hopeful proposals for reform.

—Michael T. Cahill, emeritus president and dean, Brooklyn Law School

Confronting Failures of Justice brilliantly and non-ideologically interweaves criminal law theory, substance and procedure, painstaking investigation of the criminal justice system, massive statistical research, and illustrative case studies to convincingly document the regular, immensely costly failures of the criminal justice system to do justice. It canvasses the causes of such injustice and, equally important, it offers sensible solutions to the problems created at each stage of the system. It is a balanced, magisterial work that is indispensable for those who seek to understand and to improve American criminal justice.

—Stephen J. Morse, Ferdinand Wakeman Hubbell Professor of Law and professor of psychology and law in psychiatry, University of Pennsylvania

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[Josh Blackman] Today in Supreme Court History: September 22, 2005

9/22/2005: Senate Judiciary Committee votes 13-5 to send Judge John Roberts's nomination to the full Senate.

Chief Justice John Roberts

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[Ilya Somin] Progress on the End Kidney Deaths Act

[This legislation could save many lives by giving tax credits to kidney donors. But it would not be as good as full legalization of organ sales.]

(NA)

The bipartisan End Kidney Deaths Act (EKDA) is making some progress in Congress. Dylan Matthews of Vox has a helpful summary of the legislation and its importance:

A few months ago, I wrote about a proposal called the End Kidney Deaths Act, which seeks to make sure that every one of the more than 135,000 Americans who get diagnosed with kidney failure every year has access to a kidney transplant.

Its method is simple: a federal tax credit worth $10,000 a year for five years, paid to anyone who donates a kidney to a stranger. It's the kind of thing that would've helped a lot when I donated a kidney back in 2016. Elaine Perlman, a fellow kidney donor who leads the Coalition to Modify NOTA, which is advocating for the act, estimates the measure will save 100,000 lives over the first decade it's enacted, based on conversations with transplant centers on how many surgeries they can perform with their current resources….

Since we last covered it, the Act has taken some huge strides forward. It has been introduced in the House of Representatives with two Republicans (Reps. Nicole Malliotakis of New York and Don Bacon of Nebraska) and two Democrats (Reps. Josh Harder of California and Joe Neguse of Colorado) in support of it. Dozens of supporters took to the Hill last week for a lobby day, meeting with staff for over 50 other senators and representatives.

As Matthews notes, EKDA is also generating some opposition. Still, it's good that it has gained so much support so quickly. In the rest of his article, Matthews effectively addresses a variety of criticisms of the Act, such as claims that payment for kidneys is too dangerous for donors, or that such compensation would exploit the poor. I agree with nearly all of his points.

I do have one reservation about the End Kidneys Act, which I laid out in a previous post on the subject:

The major shortcoming of the End Kidney Deaths Act is the implicit price control it creates. By setting the payment at $50,000, it prevents higher payments where that would be necessary to ensure adequate supply. While the Act would save thousands of lives, the estimates Matthews cites (some 6000 to 11,500 additional kidney donations per year) would still leave us many thousands of kidneys short, thereby still dooming many people to needless death, or at least additional years on kidney dialysis.  This problem might be especially acute for patients whose genetics make it unusually difficult to find a matching donor. Conversely, if some potential donors are willing to sell for less than $50,000, there is no good reason to ban such transactions.

Full legalization of organ sales, with no price controls, would fix these problems. It's basic economics 101 that markets function best if prices are allowed to fluctuate in response to supply and demand. In a free market, insurance companies, medical care providers, and others have every incentive to pay what it takes, as the alternative of kidney dialysis is far more expensive. If necessary, the government could subsidize consumption by the poor, as it already does for kidney dialysis and many other health care expenses.

The big problem is that the End Kidney Deaths Act would not actually end preventable kidney deaths, though it would significantly reduce them. As discussed in my forthcoming article, "The Presumptive Case for Organ Markets," full legalization could save an estimated 47,000 lives per year, several times more than EKDA. It would also save many thousands more people from years of costly and painful life on kidney dialysis. In that article, I also address various objections in detail, emphasizing that, even if they have some validity, they cannot outweigh the enormous benefits of legalization.

Despite its limitations, EKDA would still be a major improvement over the status quo. The best should not be the enemy of the good, and I would be happy to see it pass. But full organ market legalization would be much better still.

 

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[Josh Blackman] Today in Supreme Court History: September 21, 1981

9/21/1981: Justice Sandra Day O'Connor is confirmed by the Senate, 99-0.

Justice Sandra Day O'Connor

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

[Equity training, intrusive questions, and a sorry mofo. ]

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

New case! Last year, Macon-Bibb County, Ga. officials demolished IJ client Eric Arnold's house without any notice or any kind of court proceeding—one of 800 houses to be demolished in the county over the last three years as part of a secret code enforcement program that lacks the most basic due process safeguards. Eric was renovating the house, which he planned to give to family; and while there was still work to do, the yard was neat, the exterior was clean, and it was in vastly improved shape compared to when he bought it. Click here to learn more.

New case! In 2022, a Broward County, Fla. officer arrested IJ client Jennifer Heath Box on a warrant for a woman with a somewhat similar name but completely dissimilar age, address, SSN, driver's license #, and much, much more. (It turned out officers in Texas had mistakenly put Jennifer's driver's license photo on the warrant.) She spent three days in jail in miserable conditions that included a strip search, freezing temperatures, and a male inmate who repeatedly tried to get into her cell when she was alone. "[The officer] had so much evidence that he had the wrong Jennifer, and he either ignored that evidence or deliberately misled other Broward County officials," says IJ Attorney Jared McClain. "We must be able to hold government officials accountable when they overlook glaring evidence and arrest the wrong person." Click here to learn more.

Ecuadoran national challenges his conviction for illegal reentry into the United States on the grounds that his initial removal was unlawful and the prohibition on reentry was enacted for racist reasons. Second Circuit: His initial removal was lawful. And though the law's legislative history contains some shocking comments—one legislator observed in 1952, "though I am not a follower of Hitler . . . there is something to it"—those views can't be attributed to all of Congress. "Ghislaine's in prison?!" Second Circuit: And there she will stay. Fifth Circuit: Judicial estoppel means if you say the trust agreement was a contract for purposes of the motion to dismiss, you're stuck with that at summary judgment. Dissent: Speaking of holding people to what they say, the district court never said anything about judicial estoppel, so why should we? NFL Hall of Famer and former cheesehead Brett Favre took great offense to a few phrases his fellow Hall of Famer Shannon Sharpe uttered on a radio show after news broke that Favre was in hot water over potentially misusing public funds. One was: "The problem that I have with this situation, you've got to be a sorry mofo to steal from the lowest of the low." Sorry mofo or not, Favre sues Sharpe for defamation. District court: That's all "mere rhetorical hyperbole." Case dismissed. Fifth Circuit: Perhaps, but we're gonna affirm because Sharpe was either expressing opinion or just relying on "publicly known facts." University of Tennessee pharmacist student posts statements to social media with accounts that never identify her as a student at the school. Nevertheless, someone at school finds out and takes offense, calling them "sexual," "crude," and "vulgar." She is reprimanded twice, and the second time a board recommends she be expelled (although she successfully appeals). Did school officials unconstitutionally retaliate based on the content of her speech? Sixth Circuit: She's pleaded a claim and enough to get past qualified immunity at this stage. Springfield, Mo. school employees are compelled to attend "equity training" where they must complete online quizzes parroting the district's views, even if they disagree with them. When they express views like "Kyle Rittenhouse acted in self-defense" they are told they are "wrong" and "confused." Several employees sue, alleging violation of their First Amendment rights. District court: That's not only wrong, it's so frivolous that you owe attorneys' fees to the school district. Eighth Circuit: It's wrong, but it's not that wrong. Ornery Oregon state senator is made to give 12 hours' notice before he enters the state capitol in 2019 after making threatening remarks. He sues for First Amendment retaliation, and after a successful trip to the Ninth Circuit (2022), he wins in the district court. Ninth Circuit (2024, unpublished): Who's to say whether he's right or wrong, but qualified immunity and standing doctrine together make this rabblerouser's claims kaput. At George Floyd protest in Salem, Ore., officer allegedly fires rubber bullet into crowd, hitting a protester in the eye (ending her promising collegiate athletic career). Officer: I didn't shoot into the crowd; she must have been injured by another protestor. Jury: Don't believe that; pay her $1 mil. District judge: Qualified immunity! Ninth Circuit (unpublished): No QI; pay up. For those looking for a Title VII case that tackles "sex-plus" (also known as "intersectional") claims as well as mixed-motive theories of liability, there's a lot going on in this Eleventh Circuit case, even though the older women lose their discrimination and retaliation cases. Allegation: Georgia state police pull over truck driver and detain him for 91 minutes. He's asked intrusive questions about his religion, and his truck was searched without consent, all because he was on FBI's No Fly List—even though the FBI notice told the officers they shouldn't detain somebody based on presence on the list. Eleventh Circuit: The notice confirms what should have been obvious: there wasn't reasonable suspicion (much less probable cause) to do any of that. No qualified immunity. Minister is dismissed and excluded from Polk County, Ga. jail's volunteer ministry program following a dispute with jail officials about baptism. The minister sues two jail officials, alleging that his exclusion from the program was retaliatory and based on the officials' unbridled discretion, in violation of his free-speech rights. Eleventh Circuit (over a partial dissent): The minister was engaged in protected speech and the officials' unbridled discretion to deny participation in the program violates the First Amendment. No QI for the officials on either claim. Reversed and remanded. Are city council meetings in Homestead, Fla., a traditional public forum, a limited public forum, a nonpublic forum, or some different fourth thing? Eleventh Circuit (en banc): Our case law got too far out of step with Supreme Court precedent, but we now confirm that it's a limited public forum. So the future exclusion of the plaintiff—a self-styled "citizen activist" who previously got thrown out for flipping the bird, grabbing his crotch, and cursing—must be viewpoint neutral and reasonably tailored. In which the Eleventh Circuit's Judge Newsom voices well-founded "suspicio[n] of court-concocted abstention rules that, in substance if not form, deprive federal courts of jurisdiction that the Constitution expressly authorizes and that Congress has expressly vested." Sadly, in dissent. And in en banc news, the Ninth Circuit will not reconsider its decision that the Suquamish Tribal Court had subject-matter jurisdiction over the Tribe's suit for breach of contract concerning its insurance claims for lost business and tax revenue and other expenses arising from the suspension of business operations during the onset of the COVID-19 pandemic. Sixteen judges issue a statement defending the denial, while six dissent. Somewhere, Neil Gorsuch starts salivating.

Victory! Friends, if you've been reading this humble newsletter for some time, you will no doubt remember IJ's three separate lawsuits against the FBI for raiding a Beverly Hills, Calif. safe-deposit box business, lying to a judge, and seizing hundreds of millions of dollars of assets from box owners who were not accused of any crime. Earlier this year, in Case #1, the Ninth Circuit ruled that the raid violated the Fourth Amendment. And this week, in Case #3, the feds decided to throw in the towel after their incompetent property-management practices (described as "malpractice" by one FBI evidence technician) came to light. Which means IJ client Don Mellein will be compensated for 63 gold coins that went missing after being left unsecured. (Moreover, a judge has ordered the gov't to pay $21k for stonewalling discovery.) Click here to learn more. And stay tuned for updates on Case #2, which is pending before the D.C. Circuit.

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