Eugene Volokh's Blog, page 55

[Josh Blackman] President Trump Will Nominate Rebecca Taibleson to the Wisconsin Seat in the Seventh Circuit

President Trump has nominated Rebecca Taibleson for the Seventh Circuit seat in Wisconsin that was previously held by Judge Diane Sykes. This is yet another home run pick for President Trump. And, I think we are seeing something of a pattern. Trump's nominee to the Sixth Circuit, Whitney Hermendorfer, clerked for Judge Kavanaugh, and then Justices Alito and Barrett. Trump's nominee to the Third Circuit, Jenn Mascott, clerked for Judge Kavanaugh and Justice Thomas. Trump's nominee to the Ninth Circuit, Eric Tung clerked for Judge Gorsuch, and Justices Scalia and Gorsuch. And now Trump's nominee to the Seventh Circuit, Taibleson, clerked for Judge Kavanaugh and Justice Scalia. Of Trump's six circuit nominees this year, four started their careers with a Justice that Trump appointed.

More judges fit this mold from the first administration. D.C. Circuit Judge Justin Walker clerked for Judge Kavanaugh and Justice Kennedy. Fourth Circuit Judge Allison Jones Rushing clerked for Judges Gorsuch and Sentelle, and Justice Thomas. Judge Sarah Pitlyk (Eastern District of Missouri) clerked for Judge Kavanuagh. (I'm sure I'm missing others--let me know who I forgot.) If you want to see who Trump will pick, look who they clerked for.

I've known Rebecca since 2008, in an indirect way. Rebecca's father, Michael Krauss, was one of my favorite professors of all time. He taught Torts, Legal Ethics, Jurisprudence, Products Liability, and many and other classes at George Mason Law School. I took him twice, voluntarily, knowing that it would not be an easy grade. Michael was a rock of principle who pushed me in ways that inspired me as a person, lawyer, and a professor. He was a proud conservative. I used to be a hardcore Randian, and Michael (thankfully) knocked it out of me. He was utterly unafraid of being cancelled (a term that didn't exist in those years). As a law student, I hosted Michael for talks about the latest conflict in Israel and other controversial topics. He never flinched.

But beyond the law, Michael's greatest joy in life was his family. He always bragged about his wife Cynthia, and his kids, Rebecca and Josh. As I've talked to Michael over the years, he would always tell me what was new with his kiddos. Josh Krauss became a Captain in the Marines. And Rebecca was an Assistant United States Attorney, who spent time in the U.S. Solicitor General's Office. I firmly believe that you can learn a lot about a person by studying who their parents are. And in my book, the daughter of Michael and Cynthia Krauss had the principled upbringing that would serve a federal judge well.

I've keep in touch with Rebecca over the years. I would usually see her at the annual gala dinner at the Federalist Society Convention, and at other events in DC. She was very active during Justice Kavanaugh's nomination. In 2020, Rebecca was gracious enough to serve as a guest judge for the Harlan Institute Moot Court competition. That year, we mooted Torres v. Madrid. Rebecca had argued that case as an Assistant Solicitor General. During that argument, there was a funny bit where Justice Kavanaugh asked her whether Justice Scalia was correct about an originalist issue.

Given that both Wisconsin senators recommended Rebecca, I think her confirmation process should be smooth. And she is already receiving praise from Mike Davis and others.

My Statement on President Trump's Nomination of Rebecca Taibleson for the 7th Circuit

"President Trump continues to deliver on his promise to appoint bold and fearless judges who will defend the Constitution and uphold the rule of law. His latest nomination of Rebecca Taibleson…

— ???????? Mike Davis ???????? (@mrddmia) August 14, 2025

Finally, I think this excellent nomination should calm any judges who are apprehensive about taking senior status because of the Emil Bove nomination. In candor, I think these unnamed judges are likely suffering from a variant of TDS that has afflicted Mike Luttig and others. Every one of these judges could (quietly) hand-pick their successor. But instead, they complain to the press.

The reality is that these judges would be scorned in polite company for surrendering their seat to Trump, so they won't do it.

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[Eugene Volokh] First Amendment Claim Over Muting of Parent's Comments at School Board Meeting Can Go Forward

More from today's long decision by Judge Eric Melgren (D. Kan.) in Schmidt v. Huff (and read this post for the analysis of a separate First Amendment claim that Schmidt also brought):

Plaintiff Carrie Schmidt is the mother of two students who attend Gardner-Edgerton High School…. In 2022, Plaintiff started to speak at [school district] meetings, reading aloud to the Board words, phrases, and descriptions contained in the District's educational curriculum and library.

On May 4, 2023, Plaintiff became a member of the District Educational Services Advisory Committee. The Committee investigates and reviews the District curriculum, instruction, and assessment topics, and it also examines the accreditation process, progress, curriculum standards, and federal programs. The Committee makes recommendations to the School Board and Superintendent Brian Huff about these matters….

At an August 2024 District school board meeting, Plaintiff was the only individual signed up to speak. Immediately after Board President Tom Reddin announced that it was time for "hearing and requests and suggestions" from the public, Defendant Gregg Chapman, a Board Member, interjected, asking Reddin if he could speak first. As Plaintiff was walking up to the microphone, Defendant Chapman started his pre-written speech. He said the following:

I assume I know what the speaker is going to talk about …. Ms. Schmidt has made all kinds of allegations about our district and board of education…. She also has a misunderstanding of library books which are for enjoyment versus instructional materials, assigned books/materials…. It is entirely disingenuous to almost single-handedly bog down a transparent system with up to fourteen years' worth of reviews and then shout from the podium that we are taking too long and not doing anything about it….

I used to believe in the power of one voice, but this process has made it clear that one voice without understanding or discernment can cause more damage to a noble cause than an individual who just wants the issue resolved and working alongside the team.

It seems like she just gets pleasure from reading books with questionable content to this audience where there are minors listening.  it just feels like she wants the shock attention that is caused by reading the out of context sexual clips to the minors and adults in the audience…. [H]ow it's being handled is costing this community valuable time, effort and unfortunately valuable people who didn't cause the issue but have been drug through the mud by this continued and disingenuous rhetoric.

Members of the public who wish to speak during the "hearing and requests and suggestions" phase of the meeting are only allowed three minutes. Plaintiff had already prepared a three-minute speech that day, but after hearing Chapman's five-minute speech, she asked if she could respond. Chapman replied, "nope, you get your minutes." Thus, Plaintiff gave her pre- prepared three-minute speech. Like her speeches at previous Board Meetings, the content contained the language used in the books available at the District's library. Half-way through her speech, Reddin interrupted Plaintiff stating, "for anybody who has kids at home watching this, please pause it for a minute while she puts on her performance." The District added 15 seconds to Plaintiff's speech time for this interruption. However, throughout the duration of Plaintiff's speech, her microphone was muted until approximately the last 20 seconds of her speech.

Afterwards, Plaintiff approached Assistant Superintendent Ben Boothe and asked to repeat her speech so that viewers watching from home could hear it. Boothe denied the request, informing Plaintiff that the volume on the District's YouTube page would be increased and that viewers could instead read her remarks through closed captions. However, the District's YouTube page did not display closed captions for the portions of Plaintiff's speech during which the microphone had been muted.

The court rejected Schmidt's claim as to Chapman's critical remarks about her:

Defendant Chapman claims he is entitled to qualified immunity because his statements at the School Board Meeting constituted protected speech under the First Amendment and did not violate any clearly established constitutional right….

Plaintiff suffered no penalties for speaking at the board meeting such as a threat of violence, jail time, or a monetary fine. Instead, she claims that when Chapman accused her of getting "pleasure from reading books with questionable content to … minors listening," she suffered slander, shame, and ridicule. If Chapman's statements only served to damage Plaintiff's reputation, then they are insufficient to establish an injury within the meaning of a First Amendment retaliation claim. As such, Chapman did not unconstitutionally retaliate against Plaintiff, and so the Court dismisses this claim against him….

But it allowed her claim over the allegedly viewpoint-based muting of the microphone to go forward:

Plaintiff claims that she was targeted by Chapman for reading parts of books contained in the District's curriculum, when others were not. Specifically, she names Erika Sheets, and other individuals associated with the activist group, Moms for Liberty, who have brought complaints before the Board without facing similar treatment. Plaintiff claims that she alone had her microphone muted during her speech, was denied the chance to repeat it after the Board restored her microphone, her speech was not closed-captioned on the Board's YouTube channel, and others were not subjected to similar targeted opposition without an opportunity to respond before giving their prepared remarks.

Moreover, Plaintiff claims that Chapman's comments and subsequent actions towards her clearly show that he was targeting her based on his opposition to her viewpoint. For example, Chapman prefaced his remarks with the assumption that he knew what Plaintiff would be talking about before characterizing her criticisms as being "entirely disingenuous," "without understanding or discernment," and "damag[ing]." Additionally, Chapman trivialized Plaintiff's concerns about the Board's book review process by accusing Plaintiff of getting "pleasure from reading books with questionable content to this audience where there are minors listening" and seeking the "shock attention that is caused by reading the out of context sexual clips to the minors and adults in the audience." Plaintiff claims that the proximity between Chapman's remarks and the subsequent silencing she experienced establishes that her opinion or perspective was the rationale for the restriction.

Taking the facts in Plaintiff's Complaint as true, the Court agrees that Chapman engaged in viewpoint discrimination against Plaintiff. Although Plaintiff was still able to speak for three minutes, her speech was rendered ineffective because it could not be heard by viewers. Plaintiff's microphone was muted, and closed captioning was unavailable on the District's YouTube page. Moreover, Chapman's remarks demonstrate that he disagreed with Plaintiff's views and, likely due to those views, he subjected Plaintiff to less favorable treatment than other speakers….

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[Eugene Volokh] Parent Submits Photo of School Postings to LibsOfTikTok, Gets Restricted from Accessing School Property or Events

[The court has allowed plaintiff's First Amendment claim against School District decisionmakers based on this to go forward.]

Some excerpts from today's long decision by Judge Eric Melgren (D. Kan.) in Schmidt v. Huff (see also this post for the analysis of a separate First Amendment claim that Schmidt also brought):

On February 3, 2025, Plaintiff visited [Gardner-Edgerton High School] in the evening to prepare snack bags for the next day [in her capacity as volunteer for her son's wrestling team]…. After she finished, Plaintiff went upstairs to the second floor and found the room number associated with a promotional poster for the Gay Straight Alliance Club. The classroom's lights were already on, and the door was open. Plaintiff took pictures of the classroom door, posters displayed on the classroom walls, and books stacked on the classroom bookshelves. The classroom door had multiple posters and stickers on it, including the teacher's last name.

"Libs of TikTok" is a popular social media account known for posting photos and videos of individuals or organizations that often express progressive or liberal views, especially those surrounding topics like LGBTQ+ rights, education, and identity. The account typically collects its content by browsing public posts on social media and reposting them, or by directly posting submissions from followers who send in content they believe aligns with the account's focus. Although named Libs of TikTok on all platforms, the account is active on multiple social media networks, including Instagram, X (formerly Twitter), Facebook, and TikTok.

Plaintiff sent the Libs of TikTok X account the pictures she took at the school. Plaintiff had no control over whether Libs of TikTok saw her photos, decided to post them, picked which ones to post, or would notify her when it did post her photos. On February 7, 2025, at 10:26 a.m., Libs of TikTok posted the photo of the classroom door that Plaintiff had submitted. The post's caption read, "School in Gardner, Kansas (@GEHSBlazers) Strip them of their funding immediately." …

That same afternoon, … [School District] Superintendent Huff confronted Plaintiff about taking pictures and sending them to Libs of TikTok. Defendant Huff told Plaintiff that her actions disrupted the school day because the teacher whose name was posted on the classroom door was so distraught by the online comments that she asked to leave for the rest of the school day.

On February 11, 2025, Defendant Huff emailed Plaintiff a letter on official District letterhead (the "Letter"). The Letter stated the following:

The purpose of this letter is to address certain actions taken by you in violation of Board policy and state law that have resulted in threats, intimidation, abuse and harassment directed at school district personnel and students which has caused a material disruption to the school environment. Specifically, during your visit to the high school on Monday February 3, 2025, you entered into and took several pictures of classrooms, offices and other areas in the school building to include a picture of the classroom door of a teacher, which was then posted on social media. The taking and posting of this picture was done without the permission and consent of the teacher or the school district and is in contravention of Board policies including Board Policy KGB [Concealed Observations], KBC [Media Relations], KGD [Disruptive Acts at School or School Activities], KGDA [Public Conduct on School Property], KFD [School Volunteers] & KM [Visitors to the School] and state law….

[B]ased on your conduct, you are no longer to serve on the ED Services committee. In addition, for the balance of this school year (through June 30, 2025), you are no longer welcome to be on school district property or attend school events or activities without express written permission from building administration. Your presence on school district grounds or at school events or activities, both home and away, without express written permission from building administration will be considered to be and enforced as a trespass.

That same day, Superintendent Huff instructed Assistant Superintendent Ben Boothe to contact the Gardner Police Department and file an incident report. The report detailed that Boothe "wished to trespass [Plaintiff] due to an incident on the evening February 3rd where she was observed walking through the school taking pictures of classrooms and entering some of the classrooms." Specifically, the incident involved "a photo shared of room 401 to a group called 'libs of tiktok' on 02/07/2025 at approximately 1026 hours." Boothe stated that Plaintiff "was on school video taking pictures of the outside of the door to room 401 then entered the room after taking the photo."

Boothe informed the officer that he would send Plaintiff a certified letter detailing her trespass from District property and providing the Gardner Police Department case number documenting the incident. The officer requested a copy of the Letter on February 13, 2025. The Letter was provided to the officer on February 20, 2025, which was uploaded into evidence.com along with the associated case number.

Principal Frank Bell was tasked with receiving Plaintiff's requests to be on school property or attend school events and determine whether they should be granted. Bell informed Plaintiff that she could attend her son's Senior Night at the high school on February 13, 2025. However, she was only allowed to access the "PE wing," as "all other parts of our building are off-limits." Beyond Senior Night, Bell informed Plaintiff that she was required to obtain permission from "GEHS building administration for permission to be anywhere on our campus."

When Plaintiff asked about whether she could attend her son's Graduation Commencement Ceremony, Bell responded, "I would hope that with time, you would demonstrate proper civic behavior to our high school community, and honor the expectations of the letter you received. I made a good faith effort on your behalf, and advocated for you to be able to attend Thursday's Senior Night without receiving a request directly from you." He added:

Candidly, it will take some time and healthy civic behavior on your part, to earn the school's trust once again. Your recent choices have created a major disruption at Gardner-Edgerton High School. Regretfully, I read nothing in your email response that even acknowledged any of that, or that you had any remorse. Even so, our hope is that time and good behavior will heal what has been done, and we can enjoy a productive parent-school partnership for the betterment of all students.

When Plaintiff again asked about the graduation ceremony, Bell replied, "you do not have our permission to attend any future GEHS functions, home or away, including our Graduation Commencement Ceremony." Additionally, Bell informed Plaintiff that she must schedule and attend all teacher conferences over Zoom or telephone….

Schmitd sued, and the court allowed her claims to go forward against the school officials:

[B]y banning Plaintiff from school property and events based on [the Libs Of Tik Tok] X post, Huff not only banned Plaintiff for her own speech, but also banned her for others' speech. Following the ban notice, Huff instructed Boothe to file a police report and issue a no-trespassing order, which carried with it legal penalties. This measure constitutes an injury sufficient to chill a person of ordinary firmness from continuing to speak.

Moreover, the ban was substantially motivated as a response to Plaintiff's speech. The Letter makes clear that Plaintiff's conduct—taking pictures later posted to social media—was the reason she was "no longer welcome to be on school district property or attend school events or activities without express written permission from building administration." Despite Huff's arguments that he never denied Plaintiff's request to attend an event, the fact that Plaintiff faced more administrative burdens than other parents because of her unpopular speech constitutes retaliation.

Lastly, the ban was overbroad and not narrowly tailored to address the specific "threat" Plaintiff posed. The ban effectively prevented Plaintiff from speaking at school board meetings, associating with her children and other parents, and attending church services without express written permission from building administration because all these events were held on school property….[R]egardless of whether Plaintiff chose to participate in these publicly available activities or whether her requests to participate were granted, requiring her to seek permission, when others were not required to do so, imposes a burden substantially greater than necessary to further the government's interests.

This is especially true when Huff has not identified a legitimate governmental interest. As this Court ruled in its last order for injunctive relief [see this post -EV], based on the plain language of the school policies cited to justify the ban, Plaintiff did not violate any of those policies. Additionally, even though Huff accused Plaintiff of violating state law, he did not cite any specific law in the Letter. Still, throughout this case, Huff has been unable to articulate how Plaintiff violated any state law. As such, Huff unconstitutionally retaliated against Plaintiff, and violated her First Amendment rights to speech, association, and religion in the process….

Defendant Boothe is primarily alleged to have filed a police report, at Huff's direction, to enforce the no trespass order against Plaintiff. Based on the information Boothe provided to the officer in the police report, the Court concludes that Boothe assisted Huff in retaliating against Plaintiff due to her opposing viewpoint. Specifically, Boothe told the officer that "there was a photo shared of room 401 to a group called 'libs of tiktok' on 02/07/2025 at approximately 1026 hours." He stated Plaintiff "was on school video taking pictures of the outside of the door to room 401 then entered the room after taking the photo." Specifically, Boothe "wished to trespass [Plaintiff] from all USD231 properties due the incident and previous incidents involving [Plaintiff]."

From this information, it is clear that Boothe's reason for filing a trespass report was substantially motivated as a response to Plaintiff's constitutionally protected speech. As previously stated, the legal penalties that flow from a violation such as trespass, constitute an action that would chill a person of ordinary firmness from continuing to engage in that activity….

Defendant Bell is primarily alleged to have been assigned the responsibility of receiving Plaintiff's requests to be on school property or attend school events and determine whether they should be granted. However, Bell's writings to Plaintiff demonstrate retaliation. For example, he reiterated that Plaintiff was "not to attend any events, home or away." He explained that this was because Plaintiff needed to "earn the school's trust once again." Specifically, Bell cited Plaintiff's "recent choices"—i.e., the Libs of TikTok incident—as having "created a major disruption at Gardner-Edgerton High School" that he hopes Plaintiff will acknowledge with remorse or at least "heal what has been done" through "time and good behavior."

Following this conversation, Plaintiff asked if she could attend her son's Graduation Commencement Ceremony. Bell responded, "Regarding our Graduation Commencement Ceremony, I would hope that with time, you would demonstrate proper civic behavior to our high school community, and honor the expectations of the letter you received." When Plaintiff again asked about the graduation ceremony, Bell stated, "you do not have our permission to attend any future GEHS functions, home or away, including our Graduation Commencement Ceremony."

Bell's statements are a clear indication of retaliation. Plaintiff's, or rather Libs of TikTok's, social media post was constitutionally protected speech. Blanketly banning a parent from all school property and events—both home and away—absent approval from the school principal would chill a person of ordinary firmness from continuing to engage in that activity.

This is especially true when the principal has denied the parent's request to attend important events in the life of her son, like graduation. Lastly, the ban on Plaintiff's ability to attend events was substantially motivated as a response to her speech. As such, because retaliation against Plaintiff for exercising her constitutional rights is a clearly established violation, Bell is not entitled to qualified immunity, so the Court denies his Motion….

Linus Baker represents plaintiff.

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[Eugene Volokh] First Amendment Precludes Video Game Addiction Claims

From Judge a decision Monday by Judge Brian Wimes (W.D. Mo.) in Courtright v. Epic Games, Inc.:

Carey Courtright … is the mother of K.C., a minor who was twelve years old at the time this suit was filed. Plaintiff alleges that video games are designed, marketed, and sold in a way that creates and sustains addiction in users….

The First Amendment to the United States Constitution limits the scope of tort liability by preventing recovery in cases where plaintiffs seek to hold defendants liable for protected conduct. See New York Times Co. v. Sullivan (1964) (holding the right to free speech is a defense to defamation); N.A.A.C.P. v. Claiborne Hardware Co. (1982) (holding the right to freely associate is a defense to conspiracy-based torts); Hustler Mag., Inc. v. Falwell (1988) (holding the right to free speech is a defense to intentional infliction of emotional distress); Snyder v. Phelps (2011) (holding the right to free speech is a defense to intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy)…. Speech … receives the same level of protection whether the speaker seeks financial profit or not.

"[V]ideo games qualify for First Amendment protection" because "[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)." Brown v. Ent. Merchants Ass'n (2011). The interactive or player-controlled elements of video games are as equally entitled to protection as the elements generated directly and exclusively by the games' developers. Where a plaintiff seeks to hold a video game developer liable for the content of their products, strict scrutiny applies.

Here, Plaintiff argues her claims target non-expressive conduct, and she does not seek to hold Defendants liable for any content. In support of her argument, Plaintiff cites In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig. (N.D. Cal. 2023), in which the district court drew a distinction between alleged defects that do and do not receive First Amendment protections in the context of social media. The district court held that First Amendment protections do not apply when addressing alleged defects "would not require that defendants change how or what speech they disseminate" or when defects qualify as "tools" to create speech but are not themselves speech. Plaintiff argues this case is akin to In re Social Media. The Court disagrees.

Notably, in In re Social Media the defendants operated social media platforms, which provide a forum for speech and sometimes "create expressive products," but do not themselves qualify wholesale as speech. Moody v. NetChoice, LLC (2024) (explaining social-media platforms "in at least some situations"—but not all—"include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression."). Here, the Developer Defendants create video games, which are entitled to First Amendment protection as a whole, not in a piecemeal manner like social media platforms. Therefore, this case is distinguishable, and the likelihood that speech would be directly affected is higher in this case—though not unequivocal.

Plaintiff's argument that this case is about conduct not content is unpersuasive. Plaintiff alleges the Developer Defendants' video games are defective because they have addictive features. Plaintiff indiscriminately attributes the following allegedly addictive features to all Defendants and all products:

[29.] [Defendants] intentionally design their Products to be addictive by incorporating and utilizing traditional game theory tactics, operant conditioning (e.g., dark patterns, skinner boxes, feedback loops, rubber-banding), artificial intelligence, and reward systems, along with patented designs containing addictive features, systems, mechanisms, and shared technology, in their video gaming product designs to ensure consumers continue to use and engage in "microtransaction" spending within the [Defendants'] Products….

[135.] The [Defendants] utilize many strategies to enhance and exploit the already predatory monetization tactics incorporated into the Products. Such strategies include: (a) The "near miss": convincing players via exciting animation, for instance, that they were very close to winning; (b) "Chasing": encouraging players to keep playing to get back any money they just lost; (c) "Fear of missing out": suggesting that a special prize is only available for a short amount of time and must be obtained within the small window; (d) "Exclusivity": suggesting that only a small number of a special prize are available so it must be obtained immediately; (e) "Entrapment": convincing players they are about to win, or they have invested enough to win, but if they stop playing they will miss out on the win; and (f) The "sunk cost effect": justifying continued expenditures in the game because of the amount a player has already spent.

The alleged defects that Plaintiff identifies in her amended complaint are all elements of the video games at issue. Plaintiff's claims, in essence, seek to hold the Developer Defendants liable because their video games are made too entertaining by these "defective" elements. This is content-based liability that is not permitted. Sorrell v. IMS Health Inc. (2011) (holding protected speech cannot be quieted or burdened simply because it is too persuasive).

Plaintiff further argues the amended complaint targets conduct, not content, because the remedial measures required would not implicate the First Amendment. Plaintiff asserts that to address the defects in the Developer Defendants' video games she seeks "adequate warnings about the risks of [Defendants'] products, safer features such as time limits and increased parental controls, and for Defendants to eliminate their addictive features." Plaintiff argues this would not require any change to content, so the Developer Defendants' free speech rights are not implicated. This argument is also unpersuasive.

First, the allegedly defective features, as pled by Plaintiff in this case, are properly considered video game content; they are elements and features of video games. Requiring the Developer Defendants to remove these allegedly addictive features would force them to change the content of the games to make them less enticing or enjoyable for users.

Second, Plaintiff's argument for parental controls and other safety tools is an attempt to recharacterize the allegations in her amended complaint. Plaintiff references parental controls just six times in an amended complaint that is 260 pages. And those mentions are not in the context of describing defects in the video games. When Plaintiff's amended complaint discusses product defects, it focuses on design choices that make the video games addictive, like "microtransactions" and "pay-to-win" elements. Plaintiff also fails to explain what parental controls presently exist in Defendants' products and how they are defective. Therefore, the Court rejects Plaintiff's arguments about parental controls

Third, requiring the Developer Defendants to give "adequate warnings about the risks of [their] products" would unconstitutionally force them to warn of potential effects of viewing protected expressive content. A mandate of this kind would violate the Developer Defendants' constitutional free speech rights.

Plaintiff acknowledges there is a long history of courts rejecting failure-to-warn claims where plaintiffs seek to hold defendants liable for failing to warn of dangerous ideas or content contained in protected speech. Plaintiff argues this case is distinguishable from those cases, but the distinction Plaintiff attempts to draw is illusory. Plaintiff argues she seeks warnings about "dangerous product designs," not warnings about "dangerous ideas or content." However, Plaintiff's amended complaint alleges the content of video games causes addiction; any warning about a risk of harm from playing video games would be warning about the content. The fact that Plaintiff alleges the video games are designed to create addiction does not transform the conclusion that any warning would ultimately be content-based. This type of claim is therefore covered by the First Amendment and subject to strict scrutiny analysis.

It is evident on the face of the complaint that Plaintiff's claims against the Developer Defendants fail the strict scrutiny test. Plaintiff has an interest in receiving compensation for alleged harms and in preventing video game addiction in children. Preventing future addiction in children is compelling, yet the changes that are requested would apply to all users of the games and is therefore not narrowly tailored for children.

Additionally, the features Plaintiff identifies as addictive, stated generally as "the innovative video game monetization inventions and ideas intended to lure and addict users," is a very broad category of content that may be addictive for some individuals but not others. To prohibit such a broad category of video game features would strongly stifle development as game developers would fear that any new game feature that users find attractive could result in significant financial liability. The chilling effect on protected expression would be broad, even for minors. Erznoznik v. City of Jacksonville (1975) ("[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them."); Watters v. TSR, Inc. (W.D. Ky. 1989), aff'd (6th Cir. 1990) (prohibiting liability based on the content of the game "Dungeons and Dragons"); Sanders v. Acclaim Ent., Inc. (D. Colo. 2002) (finding tort liability based on the content of video games is not narrowly tailored to serve the interest of protecting minors).

In the end, "speech cannot be restricted simply because it is upsetting or arouses contempt," or where its content causes significant emotional distress. Here, all of Plaintiff's claims run afoul of the First Amendment. The theories of liability brought against the Developer Defendants would have powerful chilling effects and are far from narrowly tailored. Plaintiff's claims, as alleged, are barred on the face of the complaint, and the Developer Defendants' motion is therefore granted….

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[Eugene Volokh] Court Rejects Oklahoma Education Department's Lawsuit Over Letters from Advocacy Group

["How do Defendant's letters interfere with Plaintiffs' authority or ability to administer Oklahoma's public schools?"]

From Judge John F. Heil III (E.D. Okla.) yesterday in Okla. State Dep't of Ed. v. Freedom From Religion Found.:

On March 31, 2025, Plaintiffs filed their Complaint seeking both declaratory and injunctive relief from this Court. Specifically, the Complaint alleges that Defendant "has interfered with and will continue to interfere with [Plaintiffs'] statutory authority to govern Oklahoma's public schools." Plaintiffs urge that both declaratory and injunctive relief are necessary "to ensure that [Plaintiffs] can faithfully execute their duties, as well as protect the constitutional rights of Oklahoma's public school students." …

On December 17, 2024, Defendant, a nonprofit advocacy group, sent a letter to Achille Public Schools ("APS") Superintendent Rick Beene ("Superintendent Beene") regarding "unconstitutional school-sponsored prayer and [B]ible readings." Specifically, the letter stated that "[a] concerned parent report[ed] that [APS] implemented a policy allowing teachers to read Bible verses at the beginning of their classes" and, further, that APS "has a custom and practice of beginning each school day with a 'mandatory student-led prayer' over the schools' intercom systems."

The letter requested that APS "cease permitting teachers to give students Bible lessons" and "ensure its schools refrain from coercing students to observe and participate in school-sponsored prayer." The letter set forth the legal basis for its assertion that school-sponsored prayer and Bible readings are unconstitutional. The letter concluded with a request that Superintendent Beene "respond in writing with the steps [APS] is taking to address" the complaint so that Defendant may inform the concerned parent.

Separately, on February 7, 2018, Defendant sent a letter to Putnam City Schools ("PCS") Superintendent Fred Rhodes ("Superintendent Rhodes") regarding a complaint from a "concerned area resident" regarding a designated "team chaplain" for the Putnam City High School football team. Specifically, the letter detailed concerns that the team chaplain was leading the team in prayers and proselytizing to the players. The letter set forth the legal basis for its assertion that school-sponsored prayer and the advancement or promotion of religion by a public school through a team chaplain are unconstitutional. The letter asked PCS to "commence an immediate investigation into this complaint and take action to stop coaches and other school representatives from organizing, leading, or participating in prayers with student athletes at practices or games" and to "take appropriate actions to end its chaplaincy program." The letter further requested that Superintendent Rhodes respond in writing with the steps taken to remedy the complaint….

Defendant argues that the Complaint is insufficient on its face to demonstrate an injury in fact [and thus to establish Plaintiffs' standing]. To establish an injury in fact, Plaintiffs must show that they suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." A "particularized" injury means that it "must affect the plaintiff in a personal and individual way." For an injury to be "concrete," it "must actually exist" and be real. Further, a "threatened injury must be certainly impending to constitute injury in fact."

The Complaint alleges that Defendant "has interfered with and will continue to interfere with [Plaintiffs'] statutory authority to govern Oklahoma's public schools" and further argues that "[d]eclaratory and injunctive relief is both necessary and proper to ensure that [Plaintiffs] can faithfully execute their duties, as well as protect the constitutional rights of Oklahoma's public school students." Plaintiffs clarify in their response that they have been injured because Defendant has infringed on their "statutory and constitutional authority to administer the public school system."

However, this bare assertion is neither concrete nor particularized. How do Defendant's letters interfere with Plaintiffs' authority or ability to administer Oklahoma's public schools? In what way are Plaintiffs precluded from administering Oklahoma's public schools because of Defendant's letters? What have Plaintiffs intended to do, but have been unable to, because of Defendant's letters? The Complaint does not answer these questions. Plaintiffs have not alleged that they have suffered some actual or threatened injury. Plaintiffs' generalized statement of injury is nothing more than conjecture.

Further, Plaintiffs acknowledge that "[w]hen school districts are accused of violating either the Oklahoma Constitution or the policies and procedures implemented by the OSDE, it is the OSDE's responsibility to address those accusations, make findings of fact and conclusions of law, and implement any necessary corrective measures." In essence, Plaintiffs concede that addressing the types of letters it complains of in this lawsuit is part of Plaintiffs' duties. Yet, Plaintiffs say that they are harmed because "[e]ach time a district receives a cease-and-desist demand from [Defendant], OSDE must expend valuable time and resources to address it." Both things cannot be true. Plaintiffs cannot be both performing their duties by addressing the letters and impeded from performing their duties by addressing the letters.

The Court also notes that while Plaintiffs complain of "Defendant's continued interference with the day-to-day-operations … of Oklahoma's public schools … ," Plaintiffs only complain of two (2) letters sent by Defendant to two (2) Oklahoma public schools in the past seven (7) years. Again, the Complaint does not explain how these letters have interfered with day-to-day operations in any real way. Indeed, it appears that upon receiving these letters, the recipient schools simply forwarded the letters to OSDE for guidance, which, as discussed earlier, appears to be within the scope of Plaintiffs' duties.

Plaintiffs' Complaint also vaguely alludes that Plaintiffs' injury is the "chilling effect" caused by Defendant's letters…. [But the precedents Plaintiffs cite] considered the chilling effect on nonprofit advocacy groups based on government action. Here, Plaintiffs ask the Court to consider the chilling effect on the government based on a nonprofit advocacy group's action. The Court finds that the [precedents] are plainly distinguishable, and, following, the framework [they] set forth … is inapplicable in this case.

However, even if it did apply, Plaintiffs have failed to sufficiently demonstrate standing under the framework. {"[P]laintiffs in a suit for prospective relief based on a 'chilling effect' on speech can satisfy the requirement that their claim of injury be 'concrete and particularized' by (1) evidence that in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced."} …

[T]he Complaint does not allege that it has stopped executing its duties or ceased administration of Oklahoma's public schools because of Defendant's letters. {Notably, despite Defendant's letters, the Complaint states that "[t]hroughout his tenu[r]e in office, Superintendent Walters has actively sought to address the dismantling of faith and family values in public schools …," including announcing a "directive to provide Bibles 'explicitly for use in schools'" and establishing the "'Office of Religious Liberty and Patriotism' at the State Department of Education." This runs contrary to the assertion that the letters had any sort of a "chilling effect."} …

Nor does the Complaint allege that the schools have ceased any policies or practices because of Defendant's letters. {The Complaint alleges that, contrary to the accusations in Defendant's letters, the schools are acting lawfully. For example, while the letter to APS accused the school of beginning each school day with "mandatory student-led prayer," Plaintiffs state that APS actually provides "daily student-led morning announcements which include a statutorily required moment of reflection." If the letters inaccurately described the schools' conduct, it seems that the easiest course of action would have been to respond explaining the misunderstanding, or to simply take no action at all.}

{Notably, despite Defendant's letters, the Complaint states that "[t]hroughout his tenu[r]e in office, Superintendent Walters has actively sought to address the dismantling of faith and family values in public schools …," including announcing a "directive to provide Bibles 'explicitly for use in schools'" and establishing the "'Office of Religious Liberty and Patriotism' at the State Department of Education." This runs contrary to the assertion that the letters had any sort of a "chilling effect."} …

Adam Hines and Megan Lambert (ACLU of Oklahoma) and Ben Wizner, Scarlet Kim, and Vera Eidelman (ACLU Foundation-NY) represent Freedom From Religion Foundation.

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[Eugene Volokh] Sanctions for Another Lawyer Filing AI-Hallucinated Material …

[for "citing to fabricated, AI-generated cases without verifying the accuracy, or even the existence, of the cases" and "misrepresenting to the Court the origin of the AI-generated cases."]

From Nora v. M & A Transport, Inc., decided yesterday by Judge Susie Morgan (E.D. La.):

On June 30, 2025, Ms. Hamilton, on behalf of Plaintiff, signed and filed a Motion to Transfer Venue. On July 8, 2025, Defendants M & A Transport, LLS Leasing, Linda Stivason, and Mike Stivason (collectively, "Defendants") filed an opposition to Plaintiff's Motion to Transfer Venue. In this opposition, Defendants identified what they referred to as three "suspicious" citations.

The first of these "suspicious" citations is Ms. Hamilton's citation to Gallagher v. Wilton Enterprises, Inc., 962 F. Supp. 1162 (E.D. Pa. 1997). Ms. Hamilton cited Gallagher as a case in which "the Eastern District of Pennsylvania transferred a case filed in the wrong district rather than dismissing it, applying principles of equitable tolling and observing that transfer avoids harsh outcomes based on technical filing errors." The citation "962 F. Supp. 1162" corresponds to Kenro, Inc. v. Fax Daily, Inc. rather than Gallagher. Although Gallagher v. Wilton Enterprises, Inc. is the name of a reported opinion issued by the United States Court of Appeals for the First Circuit, neither Gallagher nor Kenro discuss venue transfer or equitable tolling.

Second, Ms. Hamilton cited Mader v. Advanced Neuromodulation Sys., Inc., 2005 WL 1863181 (E.D. La. Aug. 3, 2005) as a case in which "this Court granted a transfer where venue was technically improper but the claim was timely filed, reasoning that dismissal would unfairly prejudice the plaintiff." The Court's research does not reveal any cases bearing the name Mader v. Advanced Neuromodulation Sys., Inc. The citation "2005 WL 1863181" is for In re Yacavino, which is a New Jersey Supreme Court case on an attorney disciplinary matter.

Third, Ms. Hamilton cited Krapf v. St. Luke's Hosp., 4 A.3d 642 (Pa. Super. Ct. 2010) for the proposition that "Courts favor transferring such cases rather than dismissing them when doing so serves the interest of justice and avoids prejudice." Krapf, a real case, does not address transfer of venue. …

[In a later filing,] Ms. Hamilton "acknowledge[d] the cited authorities were inaccurate and mistakenly verified using Westlaw Precision, an AI-assisted research tool, rather than Westlaw's standalone legal database." Ms. Hamilton further wrote that she "now understands that Westlaw Precision incorporates AI-assisted research, which can generate fictitious legal authority if not independently verified."

On July 21, 2025, the Court ordered Plaintiff's counsel to "provide the Court with the AI-assisted research history that resulted in the three citations at issue in the Motion to Transfer." On July 22, 2025, Ms. Hamilton filed a response to the Court's July 21, 2025 order and attached her research history but, by her own admission, the research history does not include the incorrect citations. In her response, Ms. Hamilton admitted that "[w]hile [the attached research] reflects research [that Ms. Hamilton] personally conducted in connection with this matter, it does not include the inaccurate citations at issue" because "[t]he Motion to Transfer (Doc. 24) was initially prepared as a collaboration" and "the authorities in question were sent in an e-mail from another attorney in the firm."

On July 22, 2025, after Ms. Hamilton filed her response to the Court's July 21, 2025 order, the Court ordered Plaintiff's counsel to "provide to the Court for in camera review the AI-assisted research history performed by the lawyer who did the research." Ms. Hamilton testified she was unable to provide the Court with this research history because the lawyer who produced the AI-generated citations is currently suspended from the practice of law in Louisiana. Ms. Hamilton did produce for the Court's in camera review an email in which the now suspended lawyer sent Ms. Hamilton the AI-generated citations.

On July 24, 2025, the Court held oral argument on Plaintiff's Motion to Transfer Venue and Defendants' Motion to Dismiss Due to Improper Venue. At the oral argument, Ms. Hamilton made an appearance for Plaintiff. After argument, the Court placed Ms. Hamilton under oath and questioned her regarding her usage of AI-assisted research. The Court asked Ms. Hamilton to explain the basis for her representation that Westlaw generated the fabricated citations. Ms. Hamilton stated that she "assumed" Westlaw was the origin of the fabricated citations because she does all of her research on Westlaw. Ms. Hamilton agreed that Westlaw did not generate the fabricated citations. Ms. Hamilton confirmed that, at the time she filed the reply memorandum in support of Plaintiff's Motion to Transfer Venue, she did not review her Westlaw research history to verify that Westlaw generated the fabricated citations….

The Court finds Ms. Hamilton's conduct is in violation of Rules 11(b)(2) & (3). In determining whether an attorney has complied with Rule 11, the court applies "an objective, not subjective, standard of reasonableness." "[T]he central purpose of Rule 11 is to deter baseless filings in district court and … streamline the administration and procedure of the federal courts." "At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely."

Ms. Hamilton, who signed and filed Plaintiff's Motion to Transfer Venue, did not verify that several of the legal contentions in the Motion to Transfer Venue were warranted by existing law. Ms. Hamilton violated Rule 11(b)(2) by citing to fabricated, AI-generated cases without verifying the accuracy, or even the existence, of the cases. Furthermore, Ms. Hamilton violated Rule 11(b)(3) by misrepresenting to the Court the origin of the AI-generated cases in her reply memorandum in support of Plaintiff's Motion to Transfer Venue. Ms. Hamilton admitted to these violations of Rules 11(b)(2) & (3) at her show cause hearing on August 4, 2025.

The court ordered that Ms. Hamilton pay $1000 in sanctions ("This amount must be paid by Ms. Hamilton personally, and may not be paid for by her law firm or the Plaintiff"), that she "attend 1 hour of Continuing Legal Education on the topic of Generative A.I.," and that she be "REFERRED to the Disciplinary Committee of the United States District Court for the Eastern District of Louisiana in accordance with the Eastern District's Rules for Lawyer Disciplinary Enforcement."

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[Eugene Volokh] Burning the Midnight Oil in the Northern District of Texas

["[A] little sleep, a little slumber, a little folding of the hands to rest, and poverty will come upon you like a robber, and want like an armed man."]

From Judge Brantley Starr (N.D. Tex.) yesterday in Richards v. X Corp.:

[Richards'] main argument [in his motion for reconsideration] hinges on the idea that the Court ceases work at 5:00 PM. Richards filed his second reply in support of his request for a temporary restraining order at 8:45 PM on August 5, 2025, and the Court's order, dated August 5, 2025, was docketed around noon on August 6, 2025. Richards insists this means the Court did not properly consider his second reply but had its outcome predetermined.

While the Court appreciates Richards's vision of confining the workday to an agreeable nine-to-five schedule, that is not the reality for the hard workers of the Northern District of Texas. Just as Richards himself filed his reply in the evening, so the Court was hard at work in the waning hours of the day—hence the order's next-day docket entry. {After all, "a little sleep, a little slumber, a little folding of the hands to rest, and poverty will come upon you like a robber, and want like an armed man." Proverbs 6:10–11.} And regardless, Richards is not entitled to multiple reply briefs. {See. Local Rule 7.1(f) ("Unless otherwise directed by the presiding judge, a party who has filed an opposed motion may file a reply brief within 14 days from the date the response is filed." (emphasis added)).} Therefore, the Court DENIES Richards's motion for reconsideration.

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[Jonathan H. Adler] Are Students Engaged in Performative Virtue Signaling?

[Interesting results from a survey of undergraduates at two universities]

Northwestern University researchers Forest Romm and Kevin Waldman report in an op-ed on the results of a series of interviews they conducted with undergraduates.

Between 2023 and 2025, we conducted 1,452 confidential interviews with undergraduates at Northwestern University and the University of Michigan. We were not studying politics — we were studying development. Our question was clinical, not political: "What happens to identity formation when belief is replaced by adherence to orthodoxy?"

We asked: Have you ever pretended to hold more progressive views than you truly endorse to succeed socially or academically? An astounding 88 percent said yes.

These students were not cynical, but adaptive. In a campus environment where grades, leadership, and peer belonging often hinge on fluency in performative morality, young adults quickly learn to rehearse what is safe.

The result is not conviction but compliance. And beneath that compliance, something vital is lost.

Interview respondents noted the effect across a range of issues:

Seventy-eight percent of students told us they self-censor on their beliefs surrounding gender identity; 72 percent on politics; 68 percent on family values. More than 80 percent said they had submitted classwork that misrepresented their views in order to align with professors. For many, this has become second nature — an instinct for academic and professional self-preservation.

The authors' research suggests that on some issues, such as the nature of gender and gender identity, students' actual beliefs are quite different from what appears to be the prevailing orthodoxy on campus.

They write further:

Authenticity, once considered a psychological good, has become a social liability. And this fragmentation doesn't end at the classroom door. Seventy-three percent of students reported mistrust in conversations about these values with close friends. Nearly half said they routinely conceal beliefs in intimate relationships for fear of ideological fallout. This is not simply peer pressure — it is identity regulation at scale, and it is being institutionalized.

Universities often justify these dynamics in the name of inclusion. But inclusion that demands dishonesty is not ensuring psychological safety — it is sanctioning self-abandonment. In attempting to engineer moral unity, higher education has mistaken consensus for growth and compliance for care.

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[Jonathan H. Adler] Does the Congressional Review Act Bar the FCC's Data Breach Reporting Rule?

[The Sixth Circuit wrestles with what it means for a regulation to be "substantially the same" as one disapproved by Congress.]

Under the Congressional Review Act (CRA), Congress may pass resolutions of disapproval of agency regulations which have the effect of repealing the disapproved regulation and preventing the agency from re-promulgating another rule that is "substantially the same" as that which was disapproved, unless and until expressly authorized by Congress. In effect, a resolution of disapproval not only repeals a rule, it also effectively repeals the agency's underlying statutory authority to issue such a rule.

Up until now, the scope of this bar on agency action has not been tested. Today, however, in Ohio Telecom Association v. Federal Communications Commission, the U.S. Court of Appeals for the Sixth Circuit split over whether the passage of a CRA resolution disapproving the FCC's 2016 privacy rule, which contained regulations concerning the reporting of data breaches, barred the FCC from adopting its 2024 Data Breach Reporting Rule.

According to Judge Stranch, joined by Judge Mathis, the 2024 rule was not "substantially the same" as the 2016 rule, because it only addressed one of the subjects contained in the 2016 rule. According to Judge Griffin, in dissent, the 2024 rule is so close to the relevant portions of the 2016 rule that it is barred. (Judge Griffin further argued that the FCC lacked the statutory authority to issue the 2024 rule.)

For myself, I believe Judge Griffin has the better of the argument, and is more consistent with a proper understanding of the CRA's text and operation. If Congress disapproves a rule that consists of A+B+C+D, the best reading of the CRA is that the agency cannot repromulgate A, B, C, D, or any combination thereof, without Congressional approval. According to Judge Stranch, however, an agency would remain free to promulgate each part of the disapproved rule seriatim, and that would be fine. An implication of her interpretation would also be that if Congress repeals rule A, an agency could repromulgate A so long as it folds it into another rule. Such an interpretation of the CRA is neither compelled by the statute's text, nor is it consistent with the statute's structure and design.

Excerpts from the respective opinions are after the jump.

From Judge Stranch's majority opinion:

The CRA, incorporating the APA, defines the term "rule" as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." 5 U.S.C. §§ 551(4), 804(3). The definition makes clear that a rule can constitute either the "whole" or "a part" of an agency statement, depending on the applicable context. Section 801, in turn, provides that an agency may not issue "a new rule that is substantially the same" as "[a] rule that does not take effect (or does not continue)" because of the enactment of "a joint resolution of disapproval . . . of the rule." Id. § 801(b). Thus, for purposes of determining whether a new rule is substantially the same as a disapproved-of prior rule, the prior rule is to be construed based on the language chosen by Congress for the applicable disapproval resolution.

Using the CRA's mandatory fill-in-the-blank format, id. § 802(a), Congress passed a resolution stating: "Congress disapproves the rule submitted by the Federal Communications Commission relating to 'Protecting the Privacy of Customers of Broadband and Other Telecommunications Services' (81 Fed. Reg. 87274 (December 2, 2016)), and such rule shall have no force or effect." 131 Stat. at 88 (emphases added). By the resolution's terms, "the rule" that Congress rejected and rendered inoperable was the entire 2016 Order—Congress disapproved of the 2016 Order as a "whole." 5 U.S.C. § 551(4). Thus, the proper comparison is between the 2024 Order and the entire 2016 Order.

Petitioners argue that the phrase "rule that does not take effect (or does not continue)" refers not "to the rule specified in the joint resolution of disapproval," but rather, to any constituent part of the broader rule that has been nullified by the applicable disapproval resolution. Petitioners' Br. 48-51 (quotation omitted); see Dissenting Op. at 41 (agreeing with Petitioners' construction). That reading contravenes the text of the CRA. Section 801(b)(2)'s reference to "a rule that does not take effect (or does not continue)" refers back to § 801(b)(1), which provides that "[a] rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval, described under section 802, of the rule." 5 U.S.C. § 801(b)(1) (emphasis added). The "rule that does not take effect (or does not continue)" is, by the Act's express terms, the rule identified in the disapproval resolution pursuant to the procedures delineated in § 802.

It is true that when Congress disapproved the 2016 Order, it nullified every constituent rule contained therein. That conclusion is plainly required by the CRA's mandate that "[a] rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval . . . of the rule." Id. It is also true that the disapproval resolution limited the FCC's statutory authority going forward by proscribing it from promulgating a new rule "substantially the same" as the rejected rule. But to determine whether a new rule is "substantially the same" as a prior rule, the CRA makes clear that the prior rule should be construed as the rule identified in the disapproval resolution. If Congress intended to prohibit an agency from issuing a new rule that is substantially the same as any part of a prior rule nullified by a disapproval resolution, it could have said so. That is not the language it chose.

Petitioners prognosticate that this construction would make a disapproval resolution "easy to circumvent" by reissuance of "any of the individual parts of [a] disapproved rule." Petitioners' Br. 54; see Dissenting Op. at 41-42 (similarly arguing that our construction would allow agencies to "easily circumvent" congressional disapprovals). Such a prediction does not overcome the Act's plain text. Even if it were material to our disposition, it is unfounded. Congress can resolve this concern by passing resolutions with specific language. The CRA gives Congress ample opportunity to identify specific rules in its disapproval resolutions. See 5 U.S.C. § 802(a). As the FCC notes, moreover, Petitioners offer a far more anomalous construction of the CRA. Under their view of the Act, the FCC would be prohibited from promulgating an entire compendium of rules contained within the 2016 Order, or any other disapproved-of omnibus order. Such a prohibition could encompass the narrowest, most anodyne "agency statement[s] of general or particular applicability and future effect," including functional provisions such as definitions. Id. § 551(4). We cannot accept this atextual and anomalous construction of the CRA.

Accordingly, under the CRA's plain text, we must compare the 2024 Order to the entire 2016 Order and determine whether they are substantially the same. Id. § 801(b). The term "substantially" means "[f]ully, amply; to a great extent or degree; considerably, significantly, much." Substantially, Oxford English Dictionary (2012 ed. Oxford Univ. Press). The 2024 Order is far from "fully," "considerably," or "significantly" the same as the 2016 Order. The 2016 Order was far more expansive, imposing a broad array of privacy rules on broadband Internet access services. The data breach notification requirements were a mere subset of the broader compendium of privacy rules in that Order. The 2024 Order, by contrast, addresses only data breach reporting requirements. The two rules are not substantially the same.

Finally, even if we were to adopt Petitioners' construction and directly compare the 2016 reporting requirements with the 2024 reporting requirements, we still would conclude that the two rules are not substantially the same. There are notable differences between the two sets of reporting requirements. For example, unlike the 2016 Order, the 2024 Order extends its reporting requirements to TRS providers. Data Breach Reporting Requirements, 89 Fed. Reg. at 9981-89. There are also small but meaningful differences between the substantive obligations imposed by the two sets of requirements. As the FCC notes, the 2024 requirements are materially less prescriptive regarding the content and manner of customer notice. Granting leeway to effectively provide notice, the 2024 Order requires only "sufficient information so as to make a reasonable customer aware that a breach occurred on a certain date, or within a certain estimated timeframe, and that such a breach affected or may have affected that customer's data." Id. at 9980.

The 2016 Order requirements, in contrast, included written or electronic notification of a breach, a description of the data exposed and the date range of the breach, information the customer could use to contact the telecommunications carrier to inquire about the breach, and instructions for notifying federal authorities and law enforcement. Protecting Priv. of Customers of Broadband, 31 FCC Rcd. at 14085. The two Orders also define the term "breach" differently—only the 2024 Order includes an exception exempting "good-faith acquisition[s] of covered data by an employee or agent of a carrier where such information is not used improperly or further disclosed." Data Breach Reporting Requirements, 89 Fed. Reg. at 9971. Even under Petitioners' conception of the CRA, the regulations are not "substantially the same." See Safari Club Int'l v. Haaland, 31 F.4th 1157, 1170 (9th Cir. 2022) (rejecting the contention that two rules were substantially the same in part because the rules were not "substantively identical").

We therefore conclude that the FCC's issuance of the 2024 Order did not violate the CRA.

From Judge Griffin's dissent:

At issue is whether the 2017 disapproval forecloses the 2024 data-breach-reporting rule. All agree that, after the 2017 disapproval, Congress did not "specifically authorize[]" the 2024 rule by later-enacted legislation. 5 U.S.C. § 801(b)(2). Thus, the disapproval's effect depends on whether the 2024 rule is "substantially the same as" the earlier, disapproved one. Id.

Start with the many similarities between the 2016 and 2024 data-breach-reporting rules. A table from petitioners' brief (at 44) helps to visualize just how similar these rules are, particularly when compared to the predecessor 2007 rule concerning breach reporting for CPNI. [The table is on pages 38-39 of the dissent.]

In response, the majority points to minor, technical differences between the 2016 and 2024 data-breach-reporting rules, such as differences in what information must be included in breach notifications and how many customers must be affected to trigger reporting requirements. But such differences are inconsequential: The rules, adopting nearly identical regimes for reporting breaches of customer PII, are "substantially the same." 5 U.S.C. § 801(b)(2). To hold otherwise is to give administrative agencies an obvious way to circumvent the CRA—just make minor, technical changes to a previously disapproved rule.

Because the 2024 data-breach-reporting rule is "substantially the same" as the one Congress disapproved in 2017, the CRA blocks the new rule

But the majority directs our attention elsewhere. It asserts that, instead of focusing on the similarities between the specific breach-reporting rules, we should instead compare the entirety of the FCC's 2016 and 2024 orders, which included the breach-reporting rules and many other discrete rules.

That argument brings us to the heart of the CRA issue: When evaluating whether the new rule is "substantially the same as" the earlier, disapproved one, id., do we focus on the "the part" (the discrete breach-reporting rules) or "the whole" (the orders that included the breachreporting rules, as well as many others)? To put the question another way: At what level of generality do we evaluate whether "the rule" is being "reissued in substantially the same form"? Id.

As the majority notes, there is little precedent to guide our interpretation of the CRA. CRA disapprovals, by their nature, are enacted in historically rare circumstances—"when there has been a recent change in partisan control of the White House, the new President's party has majorities in both chambers of Congress, and there are rules from the previous administration for which the sixty-legislative-day clock has not yet run out." Jody Freeman & Matthew C. Stephenson, The Untapped Potential of the Congressional Review Act, 59 Harv. J. on Legis. 279, 286 (2022). For this reason, there have been only a handful of CRA disapprovals since its 1996 enactment, id. at 286–87 & nn.32–34, and no on-point cases to guide our decision.

Thus, this interpretative challenge begins with the text of the 2017 disapproval: "Congress disapproves the rule submitted by the Federal Communications Commission relating to 'Protecting the Privacy of Customers of Broadband and Other Telecommunications Services' (81 Fed. Reg. 87274) (December 2, 2016), and such rule shall have no force or effect." 131 Stat. at 88. By the resolution's plain terms, it cited to the entire 2016 order (i.e., the whole). So, at first blush, this text favors the majority's view.

But by disapproving the whole 2016 order, Congress disapproved of each of its constituent parts. After all, the CRA defines a "rule" as "[t]he whole or a part of an agency statement of general . . . applicability and future effect designed to implement, interpret, or prescribe law or policy." 5 U.S.C. § 551(4) (emphasis added); see id. § 804(3). Therefore, the effect of congressional disapproval of the rule is also disapproval of its parts. Although the majority asserts that Congress could have made line-by-line disapprovals of the specific rules it wished to reject, the CRA neither requires such specificity nor allows a line-item veto. There is no reason to subject congressional disapprovals of agency action to a clear-statement rule.

Quite to the contrary, our interpretation of the CRA ought to elevate the will of Congress over that of an administrative agency. It is our elected representatives, not unelected commissioners, whom the Constitution vests with legislative power. See Consumers' Rsch., 145 S. Ct. at 2496. True, Congress can "seek assistance" from agencies by making limited delegations of rulemaking authority, id. at 2496–97 (citation modified), but as the CRA makes clear, Congress can and does rein in that authority when it disagrees with what an agency has done. We should ensure that legislative power remains where the Constitution put it—with Congress. And thus we must "avoid rendering what Congress has plainly done"—here, disapproving rules—"devoid of reason and effect." Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 217–18 (2002).

The majority's exclusive focus on the entire order would allow administrative agencies to easily circumvent Congress's disapproval. For instance, if the FCC issued an order adopting four discrete rules (Rules A, B, C, and D) and Congress disapproved it, then, under the majority's logic, the FCC could skirt the disapproval by readopting Rules A and B in one order and Rules C and D in another. Neither of those new orders, under the majority's interpretation of the CRA, would be "substantially the same" as the one that Congress disapproved. That interpretation, rather than giving effect to congressional intent, merely encourages creative ways to flaunt it.

The majority responds that it would be an "anomalous construction of the CRA" if a disapproval prevented an agency from re-promulgating any "rule" in a disapproved order, which could include "the narrowest, most anodyne" of agency statements like "definitions." But that argument has several flaws. First, depending on the circumstances, it is far from a clear that something like a definition qualifies as a "rule"—a "statement of general . . . applicability and future effect designed to implement, interpret, or prescribe law or policy." 5 U.S.C. § 551(4); see id. § 804(3). Second, the CRA includes an exception for inconsequential, procedural language or rules—it excepts any "rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties." Id. § 804(3)(C). Third, and most importantly, we ought not usurp legislative power from Congress and give it to an administrative agency on grounds of a purportedly "anomalous" reading of a statute. If Congress disapproved an order but later wants to restore the agency's authority to enact rules within that order, it is Congress's prerogative to confer that power through later-enacted legislation. See id. § 801(b)(2). There is nothing "anomalous" about such a reading—it correctly assumes that the legislative power, and the authority to delegate that legislative power, rests with Congress. See U.S. Const. art. I, § 1.

To hold that Congress's 2017 disapproval does not bar this rule is to render that disapproval meaningless and to shift legislative power from Congress to an administrative agency. Cf. Loper Bright, 603 U.S. at 411–13 (correcting Chevron's improper shift of judicial power to administrative agencies). I interpret the CRA and the 2017 disapproval in a way that preserves Congress's ability to give agencies only those powers it wishes to confer. Thus, in my view, Congress's disapproval of the FCC's 2016 rule bars the FCC's 2024 data-breach-reporting rule because the two rules are "substantially the same."

 

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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