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[Eugene Volokh] Court Upholds Anti-Stalking Injunction Stemming from Public Pressure Campaign Over Allegedly Wrongly Withheld Cat

From the N.H. Supreme Court Thursday in D.V. v. R.G. (see also the newspaper coverage of the initial controversy; court records reflect that the parties are Valente v. Garcia):

The plaintiff owns a business near an apartment building in Manchester where the defendant lives. In June 2024, the defendant let her cat outside. The cat was apparently sick and dying. On the same day, the plaintiff's daughter found a cat on the plaintiff's property that appeared to be in poor health. The plaintiff took the cat in and spent several thousand dollars on veterinary care. [Note that defendant argues, in her appellate brief that the cat was "an indoor-outdoor cat who would wander the neighborhood"; she had taken the cat to the vet, who told her that the cat "may die in the upcoming weeks"; she brought the cat "home so he would live his last days with his family"; and she let the cat continue his daily routine, including his outside time, "because at the time, he was not in distress." -EV]

On Friday, June 28, the plaintiff learned that the defendant had lost a cat and went to the defendant's apartment to inquire whether the cat belonged to the defendant. Although the parties dispute what the plaintiff said or promised during that meeting, there is no dispute that, by the end of the day, the plaintiff refused to return the cat to the defendant. According to the plaintiff, she was concerned that, if the cat were the defendant's cat, the defendant had abused or neglected it. The plaintiff communicated to the defendant that she planned to consult with Manchester Animal Control when it opened the following Monday morning.

By Saturday, the defendant had made claims on social media that the plaintiff and her daughter had stolen her cat. [More facts below. -EV] The defendant also organized a protest outside the plaintiff's business. [Again, more facts below. -EV] … On Tuesday, when the plaintiff's daughter brought the cat, at the suggestion of the police, to the animal shelter, the cat had died. The defendant then claimed on social media that the plaintiff had killed the cat….

New Hampshire law allows courts to issue anti-stalking orders of protection, aimed at stopping defendants from

"[p]urposely, knowingly, or recklessly engag[ing] in a course of conduct"—defined to include at least two acts of communication—"targeted at a specific person""which would cause a reasonable person to fear" for the person's or family members' safetywhen such fear has indeed been caused.

Plaintiff sought such an order, and the trial court issued it, banning defendant from "further acts of stalking"—which presumably forbade the defendant from repeating the behavior that she engaged in—and specifically banning defendant "from posting about Plaintiff and her business on any public social media accounts." The trial court reasoned (see pp. 22-23 of this PDF):

The Defendant recklessly engaged in a course of conduct targeted at Plaintiff when, on June 29, 2024 Defendant posted. "Your karma is going to come at you ten fold. Give him back like you said you would." On June 30, 2024, Defendant posted on public social media accounts the name of Plaintiff, her daughter, and the name of Plaintiff's business, along with information Defendant could reasonably foresee would, and did, inflame public outrage directed at Plaintiff. When individuals posted threatening statements in response to Defendant's original post. statements such as "Shawty take ya gun n go get ya fucking cat who tf these ppl think they are" and "Go take her daughter[.]"

Defendant expressed approval of these posts suggesting violence against Plaintiff and her daughter. Defendant's approval is evidenced by the Defendant's social media profile picture and a red heart on each post. Defendant weaponized public social media accounts against Plaintiff, which caused Plaintiff to reasonably fear for her and her family member's safety.

Defendant did this by repeatedly making posts with no legitimate purpose other than to inflame the public against Plaintiff and her business. "For a Defendant New Hampshire's stalking statute exempts only constitutionally protected conduct and conduct 'that was necessary to accomplish a legitimate purpose independent of making contact with the targeted person. RSA 633:3-a, II(a).['] Pursuant to RSA 633:3-a, IV, the defendant has the burden to show that his conduct was necessary to accomplish a legitimate purpose." Miller v. Blackden, 154 N.H. 448, 452 {2006). Defendant failed to satisfy her burden of proof to show that her conduct was necessary to accomplish a legitimate purpose.

Defendant's posts repeatedly, with the knowledge of Defendant, elicited statements of violence directed at Plaintiff such as, "I hope your shop burns down you racist ass bitch" and "Should've been your worthless carcass they found in the streets, Debbie. Fucking, disgusting, worthless, racist cat killer". "You should find a rope and hang yourself with it already". and "Disgusting ugly cunt karma is coming for you. And the fucking law. You evil bitch. I hope you die screaming and your little cunt Sabrina too." With full knowledge of the outrage incited by Defendant's posts, in July of 2024, Defendant posted multiple pictures of Plaintiff on public social media accounts.

By posting Plaintiff's photograph, full name, and the name of her business, Defendant knew, or should have known, her conduct would direct the threatening and hostile behaviors directly at Plaintiff, Plaintiff's daughter, and Plaintiff's business. Moreover, Defendant conducted a protest outside Plaintiffs business at which one protester made the statement, "Come out bitch, come out". Defendant failed to prove the protest outside of Plaintiffs business served any legitimate purpose.

"While a content-based restriction is presumptively unconstitutional, it has also long been 'well understood that the right of free speech is not absolute at all times and under all circumstances.' Chaplinsky v. New Hampshire (1942). There are certain 'utterances [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that an benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' Chaplinsky. Accordingly, there are certain categories of speech 'the prevention and punishment of which have never been thought to raise any Constitutional problem.' Those categories of speech include 'advocacy intended, and likely to, incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; so-called 'fighting words'; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent.' United States v. Alvarez (2012) (pluralitv opinion)[.]" S.D. v. N.B. (N.H. 2023).

While Defendant did not directly contact Plaintiff in all posts, "to construe the statute as not encompassing the Defendant's conduct—writing a message addressing the victim and posting it in a public forum but not personally conveying the message to the victim—would add limiting language that the Legislature did not include." State v. Craig (N.H. 2015). While "contact" requires more than merely creating a message, the language chosen by the Legislature requires only that a person act 'either directly or indirectly' to communicate with another." Defendant's posts tagged Plaintiff's business by name, and included Plaintiff's name and picture. The evidence submitted shows Defendant's behaviors were intended to target Plaintiff, whether directly or indirectly."

The New Hampshire Supreme Court agreed, reasoning:

[1. The statute] does not require proof that the defendant personally conveyed threats of violence to or concerning the plaintiff or a member of the plaintiff's immediate family, or expressly encouraged others to do so…. [It is enough that] the trial court found that she recklessly engaged in a course of conduct, targeted at the plaintiff, that caused the plaintiff reasonably to fear for her own safety and the safety of her daughter.

The defendant has presented no developed legal argument challenging the trial court's findings that she acted recklessly, that her actions constituted a "course of conduct" targeted at the plaintiff, or that her actions served no legitimate purpose. Nor has the defendant challenged the trial court's finding that her actions foreseeably inflamed public outrage toward the plaintiff….

[2.] The trial court determined that the defendant did not engage in constitutionally protected speech, and other than asserting that she has a First Amendment right to peacefully protest, the defendant presents no developed legal argument why her conduct, under the facts of this case, was constitutionally protected. Therefore, we decline to address it….

It looks like the defendant's counsel here might not have argued the case very well, by not adequately raising the First Amendment defense; here's the entirety of the section called "The Trial Court's Protective Order Violates the Defendant's Right to Free Speech Under the First Amendment to the Federal Constitution" from defendant's brief (see p. 14 of this PDF):

The Defendant testified that in her past she had participated in protests and understood that she must do so peacefully and must not intrude beyond public spaces.

The First Amendment to the United States Constitution prohibits the passage of laws "abridging the freedom of speech." U.S. CONST. amend I and applies to the states through the Fourteenth Amendment to the United States Constitution. Lovell v. Griffin, 303 U.S. 444, 450 (1938). Orders of a court punishing a person for peacefully protesting abridges that person's freedom of speech and should not have been used as grounds for the issuance of the Stalking Final Order of Protection The United States Supreme Court has stated that "above all else, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

The Trial Judge's narrative in the stalking order discounts the Defendant's right to protest whereas the Trial Judge's analysis is contrary to the testimony of Officer Coughlin who responded to the scene and testified at the hearings on Day 1 and the testimony of the Defendant. The Trial Judge's findings improperly bolsters the insufficient evidence presented by the Plaintiff and her daughter at the hearings. In summary, the findings contained in the Trial Judge's narrative concerning the protest contradict the testimony at trial and is unsupported by the record.

Still, setting aside the weakness of the briefing in this particular case, query how a court should decide when such public pressure campaigns—whether involving in-person picketing, other shaming within the community, or purely Internet condemnation—serve a "legitimate purpose."

The issue of course comes up often. Consider, for instance, the controversy stemming from the publication of lists of names and photos of Harvard students who were allegedly linked to pro-Hamas-attack statements. Or, going back some years, consider the identification of the dentist who killed Cecil the lion, which apparently led to threats against the dentist. Or consider the various viral videos that show someone supposedly saying or doing something racist or sexist or otherwise sharply condemned by many people could have the same effect, and that lead to insults of and sometimes threats against the person being depicted.

Or consider what I think is the leading Supreme Court case on the subject, NAACP v. Claiborne Hardware Co. (1982), which stems from a 1966-70 black community boycott of white-owned stores in Claiborne County, Mississippi. The boycott organizers demanded that black customers stop shopping at those stores, and stationed "store watchers" outside the stores to take down the names of black shoppers who were not complying with the boycott. Those names were then read aloud at NAACP meetings at a local black church, and printed and distributed to other black residents. "As stated by the [trial judge], those persons 'were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites.'"

Some of the noncomplying shoppers were also physically attacked for refusing to go along with the boycott:

The testimony concerning four incidents convincingly demonstrates that they occurred because the victims were ignoring the boycott. In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged. None of these four victims, however, ceased trading with white merchants.

The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators. In April 1966, a black couple named Cox asked for a police escort to go into a white-owned dry cleaner and, a week later, shots were fired into their home. In another incident, an NAACP member took a bottle of whiskey from a black man who had purchased it in a white-owned store. The third incident involved a fight between a commercial fisherman who did not observe the boycott and four men who "grabbed me and beat me up and took a gun off me." In a fourth incident, described only in hearsay testimony, a group of young blacks apparently pulled down the overalls of an elderly brick mason known as "Preacher White" and spanked him for not observing the boycott….

Various businesses sued, claiming that the boycott tortiously interfered with the businesses' relationships with their customers, including by frightening away some customers. (That is generally a legally viable sort of claim, setting aside the First Amendment objections.)

Yet the Court held that the First Amendment protected publishing the fact that the noncomplying shoppers were not complying with the boycott—despite the attempt to publicly shame people who were exercising their legal rights to shop at white-owned stores, the natural tendency of such behavior to coerce some people to go along with the boycott, and the eminently foreseeable consequence that there was some violence. Though "[p]etitioners admittedly sought to persuade others to join the boycott through social pressure and the 'threat' of social ostracism," the Court held, "[s]peech does not lose its protected character … simply because it may embarrass others or coerce them into action." And it doesn't lose its protected character even when a few of the listeners foreseeably act violently:

Respondents also argue that liability may be imposed on individuals who were … "store watchers" …. There is nothing unlawful in standing outside a store and recording names….

Only those people who themselves "engaged in violence or threats of violence" may be held liable for those incidents, the Court concluded; simply publicizing the noncomplying customers' names couldn't lead to liability.

Nor do I think that the result would have been different if the people's photos were included alongside their names. In a rural county that had 7500 black residents at the time (I looked this up in the Census data), identifying a person by name would have likely made it pretty clear to fellow residents who it was. And to the extent that the name was ambiguous, and the photo helped show which John Smith was being discussed, it would likely have been better and fairer if the photos could have been included, to avoid people ascribing one person's behavior to another.

I also don't think that the legal result should be affected by whether the information is posted on the Internet (which, in the Harvard pro-Hamas-attack speech example, might have distinguished the names being posted online from the names being displayed on a truck that was apparently being driven around Cambridge). It's true that Internet speech is generally visible by more people, so if even 0.01% of all readers act illegally based on it, that could still be a large number. But on the other hand, the speech in Claiborne Hardware was more likely to reach people's neighbors, who are much more capable of retaliating with real-world violence (as opposed to just nasty e-mails or threats) than are Internet users thousands of miles away.

To be sure, a dispute about a cat (even with an alleged "racist remark to the cat's owner") seems to be of a much lesser magnitude than one about a broad boycott of white-owned stores, or even about alleged pro-Hamas-attack sentiment among Harvard students. But I wonder whether the law can draw a line here, consistently with the First Amendment.

In any event, the New Hampshire case suggests that some judges are indeed open to trying to suppress public pressure campaigns that lead some listeners to threaten their targets (though, again, it's hard to know for sure how broadly they would apply that reasoning). I'd love to hear what our readers think about this sort of order.

Disclosure: I was accused last year by a self-represented frequent litigant of causing people to make threatening phone calls to her, when I published a long law review article that in a few passages identified her as the plaintiff in certain pseudonymous lawsuits. The litigant sought a "harassment restraining order" requiring me to remove her name from the online versions of the published article. Unsurprisingly, the Los Angeles Superior Court dismissed her pseudonymous case against me, and ordered that she be depseudonymized, though she is currently appealing those decisions. My views described above long predate that lawsuit.

The post Court Upholds Anti-Stalking Injunction Stemming from Public Pressure Campaign Over Allegedly Wrongly Withheld Cat appeared first on Reason.com.

[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Josh Blackman] Justice Thomas Avoids Substantive Due Process with Meyer and Pierce

[Thomas may attempt to recast Pierceas a Free Exercise case, but it cannot be understood in that fashion.]

On June 26, the Court decided Gutierrez v. Saenz. Justice Thomas wrote a thoughtful concurrence that explored the meaning of "liberty" in the Due Process Clause. In that concurrence, Thomas cast doubt on the doctrine of substantive due process. Yet, as I noted, Thomas was a bit cagey about Meyer v. Nebraska, and the right to raise children. I suspect that Mahmoud was on Thomas's mind.

On June 27, the Court decided Mahmoud. As I explained in this post, the Court resolved this case about parental rights with barely any mention of substantive due process. The Court is still suffering from Lochner-phobia. Everything was grounded in the Free Exercise of Religion. For example, Justice Alito wrote:

"[W]e have long recognized the rights of parents to direct 'the religious upbringing' of their children." Espinoza v. Montana Dept. of Revenue, 591 U. S. 464, 486 (2020) (quoting Yoder, 406 U. S., at 213–214).

Meyer and Pierce were not limited to "religious upbringing." Those precedents referred to upbringing of children, in all contexts.

Justice Sotomayor's dissent describes the majority opinion accurately:

Here, however, the Court's analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that "the burden in this case is of the exact same character as the burden in Yoder."

Justice Thomas wrote a concurrence in Mahmoud that hinted at substantive due process, briefly. Thomas explains that Yoder was based on Pierce v. Society of Sisters:

In reaching this conclusion, the Court relied heavily on its earlier decision in Pierce, which articulated "perhaps the most significant statements of the Court in this area."

And Pierce, in turn, was a substantive due process case:

While the Court did not decide Pierce on free exercise grounds,[FN4] the context in which Pierce arose confirms that it "stands as a charter of the rights of parents to direct thereligious upbringing of their children." Yoder, 406 U. S., at 233.

[FN4] The Court decided Pierce 15 years before it recognized that the First Amendment's free-exercise guarantee applies against the States. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).

Griswold and other Warren Court cases tried to recast Pierce as a Free Exercise case, but that doesn't work. Lochner and Pierce are cut from the same cloth.

For reasons I do not understand, Justice Thomas doesn't cite his Gutierrez concurrence, or talk about Lochner. He may have made peace with a substantive due process right to raise children, but his cagey about the basis.

At bottom, the Justices don't want to talk about Smith, and they don't want to talk about substantive due process. But now that Dobbs overruled Roe, I do think there is some space to talk about facets of substantive due process that may be correct.

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[Josh Blackman] The Status of Smith and Yoder After Mahmoud

[The Court continues avoiding the Smith issue, but in an unexpected way.]

A few days ago, I asked if the moment for overruling Smith had passed. At the time, I had not yet read Mahmoud. (I am still making my way through the opinions.) Now, having read Mahmoud, I see a Court that is desperately trying to stay away from the resolving the validity of Smith.

Let me lay out some salient facts from Mahmoud. The government initially allowed parents to opt-out their children from being exposed to certain books. However, that opt-out was later removed. And, as Justice Alito observed, "[t]he Board member went on to suggest that the religious parents were comparable to 'white supremacists' who want to prevent their children from learning about civil rights and 'xenophobes' who object to 'stories about immigrant families.'" Yet, the school permits other types of opt-outs for non-religious reasons.

Based on the Court's precedents, I could see two possible ways to avoid Smith. First, the Court could follow Masterpiece Cakeshop, and find that the statements from the board member were impermissible animus against religious parents. This policy would not be neutral towards religion. That finding would trigger heightened scrutiny under the rubric from Church of the Lukumi. Then again, Justice Sotomayor suggests in Footnote 15 that the Board Member was not actually expressing hostility towards religion, so that argument may not have worked.

Second, the government allowed an exemption for religious parents, but then removed that exemption, even as other exemptions are present. These facts resembles Roman Catholic Diocese, Tandon, and Fulton, under the "most favored nation" approach. In other words, religion is being treated worse than non-religion. This policy would then not be generally applicable, so would be reviewed with heightened scrutiny. The Court even cited Fulton:

This robust "system of exceptions" undermines the Board's contention that the provision of opt outs to religious parents would be infeasible or unworkable. Fulton, 593 U. S., at 542.

But Alito discussed the exemptions at the back-end scrutiny analysis, and not at the front-end to determine whether strict scrutiny applies.

Yet, the Mahmoud Court did not take Door #1 or Door #2. Justice Alito expressly said he wouldn't even consider these arguments:

We acknowledge the many arguments pressed by the parents that theBoard's policies are not neutral and generally applicable. See Brief for Petitioners 35–44. But we need not consider those arguments further given that strict scrutiny is appropriate under Yoder.

Instead, Justice Alito took Door #3: Yoder. Alito explains that Mahmoud has the same "special character" as Yoder, so the Court follows that precedent.

Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny. That much is clear from our decisions in Yoder and Smith. . . .  And we explained that the general rule did not apply in Yoder because of the special character of the burden in that case. 494 U. S., at 881. Thus, when a law imposes a burden of the same character as that in Yoder, strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable.

Therefore, given this "special character," Yoder does not fall under the Smith rubric. Thus, you get to heightened scrutiny without discussing whether the law is neutral or generally applicable. I suspect this indirect route was necessary to keep Justices Kavanaugh and Barrett on board. They do not want to revisit Smith, and this approach allowed the Court to avoid that precedent.

Yoder has long been a favorite case for religious liberty litigants to cite, but I was always uncertain about its status. In Smith, Justice Scalia had to bend over backwards to distinguish away Yoder. Accordingly, I did not think Yoder had much play outside the narrow confines of that decision. The Burger Court was sympathetic to the Amish, but I doubt other religious groups would have gotten similar treatment. This case doesn't appear in the Barnett/Blackman casebook.

In Mahoud, the lower court limited the case to the unique circumstances of the Amish. The District Court "dismissed Yoder as 'sui generis and 'inexorably linked to the Amish community's unique religious beliefs and practices.'" Justice Alito, however, explained this was an error:

Although the decision turned on a close analysis of the facts inthe record, there is no reason to conclude that the decision is "sui generis" or uniquely "tailored to [its] specific evidence," as the courts below reasoned. We have never confined Yoder to its facts. To the contrary, we have treated it like any other precedent. We have at times relied on it as a statement of general principles. See, e.g., Espinoza, 591 U. S., at 486; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 881, and n. 1 (1990).  . . .

Yoder is an important precedent of this Court, and it cannot be breezily dismissed as a special exception granted to one particular religious minority. It instead embodies a principle of general applicability,

In other contexts, I've explained that originalist judges can, in certain circumstances, decline to extend non-originalist precedents. But I think that can only be done where there is no otherwise controlling precedent.

In dissent, Justice Sotomayor explains that Smith's treatment of Yoder was not quite so positive:

The problem for the majority is that this is not what Smith said. Smith recognized that "[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections." Only in such "hybrid situation[s]" does the Court set aside its neutral and generally applicable inquiry. Yoder, the Smith Court explained, was such a hybrid rights case because the parents relied on both their substantive due process rights to "direct the education of their children" and the Free Exercise Clause. Here, however, the Court's analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that "the burden in this case is of the exact same character as the burden in Yoder."

I'll return to the substantive due process point in another post. Justice Alito responds to the "hybrid" rights point briefly:

In Smith, the Court speculated that the general rule was not applied in Yoder because it "involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections." We need not consider whether the case before us qualifies as such a "hybrid rights" case. Contra, post, at 35 (SOTOMAYOR, J., dissenting). Rather, it is sufficient to note that the burden imposed here is of the exact same character as that in Yoder. That is enough to conclude that here, as in Yoder, strict scrutiny is appropriate regardless of whether the policy is neutral and generally applicable.

I recently mentioned the "hybrid rights" doctrine in the context of FCC v. Consumers' Research. And it seems the Court has no interest in rehabilitating that Scalia-created doctrine.

What do we make of Mahmoud? The Court has gone all in on rehabilitating Yoder. Indeed, the Court has analogized Yoder to Tinker--something I'm not sure the Court has done before:

And the right to free exercise, like other First Amendment rights, is not "shed . . . at the schoolhouse gate." Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506–507 (1969). Government schools, like all government institutions, may not place unconstitutional burdens on religious exercise.

Alito repeats this point later in a quotable section:

As a result, the right of parents "to direct the religious upbringing of their" children would be an empty promise if it did not follow those children into the public school classroom. We have thus recognized limits on the government's ability to interfere with a student's religious upbringing in a public school setting.

There you have it. Religious students bring their religious liberty into the public school classroom. This sort of statement would have been unthinkable a decade ago. If the Court overrules Stone v. Graham or Everson, this sentence will be quoted. The Court has pivoted strongly here.

Moreover, the Court extends Trinity Lutheran to the context of denying benefits to  religious children in public schools.

As we have previously held, when the government chooses to provide public benefits, it may not "condition the availability of [those] benefits upon a recipient's willingness to surrender his religiously impelled status." Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 462 (2017) (internal quotations marks and alterations omitted). That is what the Board has done here. . . . Public education is a public benefit, and the government cannot "condition" its "availability" on parents' willingness to accept a burden on their religious exercise. Ibid.

Previously, I thought this doctrine was limited to private schools seeking benefits from the state. But now it extends further.

There are many doctrinal shifts in this case. Plus the Court crafted a dichotomy between coercion for the Establishment Clause and coercion for the Free Exercise Claus here. There is a lot more to consider.

The post The Status of Smith and Yoder After Mahmoud appeared first on Reason.com.

[Josh Blackman] Contrasting Coercion for the Free Exercise Clause in Mahmoud and Coercion for the Establishment Clause in Kennedy

[The Court finds that the government cannot indirectly coerce children who are exercising their religious beliefs, but the government can indirectly coerce children who are not exercising their religious beliefs.]

Mahmoud v. Taylor followed naturally from Skrmetti. Indeed, you could imagine a Court that decided Skrmetti the other would also flip Mahmoud. But given the fact that Skrmetti allowed the state to shield minors from gender transitioning, it makes sense that Mahmoud allowed parents to shield minors from information about gender transitioning.

Still, even though the outcome of Mahmoud was not hard to predict, the Court took a somewhat circuitous route to get there. First, the Court relied almost exclusively on Yoder, and used that precedent to get around Smith. Second, the Court, and Justice Thomas in particular, said almost nothing about substantive due process, even though the right to raise children was grounded in Lochner-era decisions like Meyer and Pierce. I'll address these two topics in other posts.

Here, I will discuss a third topic that requires some unpacking. How can Mahmoud be reconciled with Kennedy v. Bremerton School District? In particular, how can you line up the Court's treatment of coercion in these two recent decisions?

Recall that in Kennedy, the school district argued that the coach's prayers could coerce students, and thus violate the Establishment Clause. But according to the school district, there was "no evidence that students [were] directly coerced to pray with Kennedy." I have read Kennedy to stand for the proposition that only direct evidence of coercion would violate the Establishment Clause. As Justice Gorsuch explained, "[o]ffense . . . does not equate to coercion." Stated differently, merely being exposed to the prayer is not enough.

However, in Mahmoud, Justice Alito's majority opinion discussed coercion in a different fashion. Justice Alito reads Yoder as holding "that the Free Exercise Clause protects against policies that impose more subtle forms of interference with the religious upbringing of children." The Court goes on to say that the government can violate the Free Exercise Clause, even if there is only evidence of indirect coercion. Justice Alito writes:

According to the dissent, parents who send their children to public school must endure any instruction that falls short of direct compulsion or coercion and must try to counteract that teaching at home. The Free Exercise Clause is not so feeble. The parents in Barnette and Yoder were similarly capable of teaching their religious values "at home," but that made no difference to the First Amendment analysis in those cases.

Justice Sotomayor's dissent explains that the Roberts Court has in fact required such a heightened pleading standard.

Consistent with these longstanding principles, this Court has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim. That makes sense: Simply being exposed to beliefs contrary to your own does not "prohibi[t]" the "free exercise" of your religion. Amdt. 1. Nor does mere "'[o]ffense . . . equate to coercion.'" Kennedy v. Bremerton School Dist., 597 U. S. 507, 539 (2022) (quoting Town of Greece v. Galloway, 572 U. S. 565, 589 (2014) (plurality opinion) (alteration in original).

Justice Sotomayor returns to Kennedy later in her dissent.

So too, in Kennedy v. Bremerton School Dist., the Court recognized that seeing objectionable conduct alone is not actionable under the First Amendment. There, the Court rejected the argument that the exposure of children to a school coach's religious prayer violated the Establishment Clause. See 597 U. S., at 538–539. Even though hearing and watching an authority figure engage in a denominational prayer with classmates at a school-sponsored event could, of course, undermine parents' efforts to instill different religious beliefs in their children, a majority of this Court concluded that no cognizable "coercion" had occurred, and so no Establishment Clause violation inhered in the coach's conduct.

Is it possible to reconcile Mahmoud and Kennedy?

Well, one obvious distinction is that Kennedy concerned the Establishment Clause and Mahmoud concerned the Free Exercise Clause. The trend in recent years has been to reduce judicial scrutiny of Establishment Clause claims while increasing judicial scrutiny of Free Exercise Clause claims. So perhaps it is not surprising that the Court would be warier of possible coercion in the context of the Free Exercise Clause than in the Establishment Clause context.

But I think there is a deeper principle at play here. In Mahmoud, the Court is concerned that the government is interfering with a child's religious development. In other words, children who are exercising their religious beliefs now have to contend with contrary information being conveyed by the school. In Kennedy, the dynamics were flipped. The coach was exercising his religious beliefs, while the objecting students were not exercising their religious beliefs. To the contrary, the objecting students wanted to be shielded from possible coercive effects of the prayer. This was the same interest at play in Lee v. Weisman and related cases. But the Kennedy Court discounted this concern.

I think the distinction can be stated simply: the Court finds that the government cannot indirectly coerce children who are exercising their religious beliefs, but the government can indirectly coerce children who are not exercising their religious beliefs. Stated differently, children have the right to be free from indirect coercion that could affect their religious development, but children have no right to be free from indirect coercion that could affect their secular development. The government can't impose values that are hostile to religious beliefs, but can impose values that are hostile to secular beliefs.

I think what we are seeing, even if implicitly, is a recognition that the Religion Clauses are designed to protect religious people. Or, the Constitution protects the rights of those who believe more than it protects the rights of those who do not believe. As obvious as that may sound, for decades, the Religion Clauses were primarily interpreted to protect people from religion. The "play in the joints" invariably went towards secularism, and not the other way.

Mahmoud is at once a narrow case, and a broad case. It is narrow in the sense that the Court closely followed the "special character" of Yoder. It is not clear how this rule extends further. But Mahmoud is also a broad case in the sense that litigants raising Free Exercise Clause claims have a lesser burden than litigants raising Establishment Clause claims. I think this is a significant shift in the law that neither the majority nor the dissent acknowledged.

Going forward, secularists will need to shift how they litigate these issues. Indeed, I've already seen a creative example. One of the suits challenging Texas's new Ten Commandments law was brought by a parent who is a preacher. The parent argues that the religious message on display in the classrooms conflicts with the religious beliefs he seeks to impart on his children. Another parent objects to his minor child learning about "adultery" from the Ten Commandments. Indeed, Catholics find the adultery commandment is #6, while Jews find it is #7.

These are creative claims. Secularists will now have to dress their objections to religion up in religious garb. Then again, what is the remedy? The parents in Mahmoud sought an opt-out. The public school system can still teach the various books, so long as the children are excused. But there is no real opt-out from seeing a poster on the wall. It is either visible or not visible. I suppose you could put all of the opt-out secular students in a separate classroom without a Ten Commandments display. Students can't object to something they can't see. Relatedly, another Texas law permits prayers to be read in classrooms only for students who opt in.

Of course, there is a longstanding issue lurking that will eventually rear its head: sincerity. As people realize that raising religious claims can provide the grounds for exemptions--even with Smith still on the books--people will be tempted to assert religious beliefs that may not be sincere. Courts have historically been loathe to probe sincerity. But given how broadly the Court is now construing the Free Exercise Clause, there will be a sincerity reckoning, sooner or later. And as difficult as it is to probe sincerity of parents, I am not sure how to probe sincerity of children.

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[Eugene Volokh] Administration's Filings in Support of Defunding of Voice of America Are Inadequate, Federal Judge Says

From Judge Royce Lamberth (D.D.C.) today in Widakuswara & Abramowitz v. Lake:

On April 22, 2025, upon finding that the defendants likely violated several provisions of the Administrative Procedure Act (APA), this Court ordered the defendants to "restore VOA programming such that USAGM fulfills its statutory mandate that VOA 'serve as a consistently reliable and authoritative source of news.'" This portion of the Court's preliminary injunction remains in full effect.

On June 23, 2025, the Court held a hearing on the pending Motions for an Order to Show Cause … regarding the defendants' alleged noncompliance with this part of the preliminary injunction. At the conclusion of the hearing, the Court ordered the defendants to file a "supplemental memorandum with additional information regarding USAGM's recent activities, including any relevant information about USAGM [U.S. Agency for Global Media] funding decisions, personnel updates, and submissions to Congress." …

The Court, having now reviewed all filings, is still unable to get a clear picture of how VOA is operating or how the agency plans to operate VOA moving forward.

For example, the defendants cite VOA's ramped-up Persian news programming in the aftermath of the recent Israeli air strikes against Iran as a successful demonstration of VOA's capacity to report the news. The defendants emphasize their ability to "exercise[] recalls, as appropriate," and maintain their "access to critical talent" to carry out operations as needed. But at the same time, the defendants also attach their submission to Congress on June 3rd, showing their intent to fire those very Persian News Network staffers as part of the impending reduction-in-force (RIF). See June 3 Notification to Senator Graham (indicating plan to retain only 11 VOA positions and 2 Farsi language positions). Faced with this record, the Court cannot rely on the defendants' latest representation of the Persian News Network "surge operation" as any measure of compliance.

Indeed, across the board, the defendants fail to provide any concrete staffing numbers to the Court. The reported staffing level—"86 employees working for Voice of America and the Office of Cuba Broadcasting"—comes with a caveat: that "[t]hese numbers are anticipated to change with anticipated flux, including a reduction in force, and as [USAGM] responds to current events as needed." The Court cannot discern the defendants' intent to "restore VOA programming," as required by the preliminary injunction, based on such a noncommittal representation. {The Court notes that the staffing levels at the Office of Cuba Broadcasting are irrelevant, because Part III of the Court's preliminary injunction focused specifically on VOA. The Office of Cuba Broadcasting is a separate entity within USAGM.}

Of course, the Court does not mean to give the impression that staffing or other operational decisions must be permanent to allow for this Court's review. Personnel decisions are within the agency's purview, as this Court has previously emphasized. But "[w]hile the agency does have discretion regarding how it discharges its statutory responsibilities, that discretion is neither boundless nor shielded from judicial review and remediation." And as it stands, the defendants have not made personnel representations that this Court can evaluate. The defendants need to provide information on staffing that gives a realistic picture of how VOA will be operating moving forward, without touting activities undertaken by staff that will soon be fired.

Beyond the unpredictable staffing levels, the Court observes several other deficiencies in the defendants' supplemental memorandum. It contains no reference to the agency's Fiscal Year 2025 budget justification or why the defendants have decided to abandon it. The Court therefore does not have a sense of how the defendants are using the $260 million that has been appropriated for VOA for Fiscal Year 2025.

Furthermore, the supplemental memorandum contains no information on how the defendants determined the activities it would undertake to "restore VOA programming such that USAGM fulfills its statutory mandate." For example:

None of the defendants' filings have explained why the defendants zeroed in on Dari, Pashto, Farsi, and Mandarin as the only statutorily-required languages for VOA broadcasting, when VOA was previously broadcasting in forty-eight different languages.The defendants report that they are broadcasting shortwave from Greenville, South Carolina, which "signal blankets all Latin America and the Caribbean." Gov't Suppl. Mem. at 6. But none of the four languages that VOA has identified are even spoken in those regions. The defendants have not explained this broadcasting decision, which on its face appears irrational.The defendants have never explained the decision to exclude Africa from their plan to run VOA. They emphasize the "absence of any clear directive" to broadcast to those regions, but that does nothing to explain the agency's decisionmaking process in taking the drastic action of cutting out those regions wholesale.

In short, the defendants need to provide more information. As it stands, the Court still does not have a clear picture of what VOA is doing, what the defendants' plan is for VOA moving forward, or how the defendants made any of these decisions. Without this information, the Court cannot determine the defendants' compliance with the preliminary injunction. Therefore, the Court will provide the defendants with another opportunity to respond to the Court, specifically responding to the issues highlighted above.

{The Court reminds the defendants that mere reference to the Executive Order is not sufficient for APA compliance. See State v. Su (9th Cir. 2024) ("[T)he executive order does not exempt [the agency] from basic APA requirements of reasoned decisionmaking."); Louisiana v. Eiden (W.D. La. 2022) (citation omitted) ("A decision suppo1ted by no reasoning whatsoever in the record cannot be saved merely because it involves an Executive Order.").}

William B. Schultz, Margaret M. Dotzel, and Brian J. Beaton, Jr. (Zuckerman Spaeder LLP) represent plaintiffs.

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[Eugene Volokh] "Israeli Spy" Allegations Against Consultant Involved in Examining Hunter Biden's Laptop May Be Defamatory

From yesterday's opinion by Judge Michael Nachmanoff (E.D Va.) in Apelbaum v. Bloom:

Yaacov Apelbaum is the founder of XRVision, Ltd., a cybersecurity and analytics company. Plaintiffs Apelbaum and XRVision … attracted media attention in 2020 for their role in examining Hunter Biden's laptop computer, purportedly "analyz[ing] the contents" of a copy of the hard drive "to determine the legitimacy of the [l]aptop."

[Defendant] Jordan Arthur Bloom … is an independent journalist who maintains a blog on the platform Substack. On January 29, 2024, Defendant published an article, "The Role of Yaacov Apelbaum in the Hunter Biden Drama" ("First Article")…. The alleged defamatory statements in the First Article include:

"Yaacov Apelbaum is an Israeli spy, and the sort of Israeli spy who would have good reasons to smear American facial recognition technology, because his company, XRVision, is a competitor.""XRVision has provided sourcing to a bunch of conservative publications, including the Washington Times. So this is an Israeli spy who's deeply involved in shaping the Hunter Biden story.""What the case of Apelbaum actually represents is how badly the conservative movement has been penetrated by Israeli intelligence, at the level of human intelligence and technology contracting.""It is a sad thing to watch an old man and American president be run around like this by dual loyalists and spies."

These statements were published on Defendant's Substack and also to thousands of viewers on Twitter and other platforms, then were "subsequently and virally" republished on other websites. Defendant intentionally failed to conduct any investigation before publishing these statements and "made zero effort to contact Plaintiffs to seek out their knowledge or position to include in his article."

In November 2024, Plaintiffs' attorney sent Defendant a cease-and-desist letter demanding he retract the article and apologize. On November 23, 2024, Defendant both responded via letter and published another article on his blog ("Second Article") reaffirming the First Article's statements and hyperlinking to the First Article….

Plaintiffs sued, and the court allowed the case to go forward:

[i.] Plaintiffs set forth an actionable statement (defamation per se)….

A statement is considered defamation per se [and thus actionable without proof of tangible loss -EV] if, among other things, it "prejudice[s] such person in his or her profession or trade." Defendant argues that "identification as an Israeli spy is [not] inherently damaging to one's reputation in business."

Keeping in mind that at this procedural juncture the Court is obliged to assume the truth of Plaintiffs' factual allegations, Plaintiffs' assertions overcome any dispute as to the "inherent" reputational impact of these statements. The complaint submits that Plaintiffs work in the cybersecurity industry, and Plaintiffs "periodically work[ ] with the [United States] government" in this field. This Court concludes that allegations of close ties to a foreign intelligence agency could prejudice a cybersecurity professional and his firm….

[And a]t this stage, the Court must credit the Plaintiffs' well pled allegation of the factual falsity of the statements. The complaint alleges the statements are factually false, citing in support that "Mr. Apelbaum [has] renounced his Israeli citizenship and is presently a citizen of the United States of America, only," that "Mr. Apelbaum is not a foreign agent," and that Defendant "conceived a storyline in advance of any adequate investigation and then consciously set out to insert Plaintiffs into his preconceived narratives." …

[ii.] Actual [m]alice …

[B]ecause Plaintiffs have alleged that Bloom made his statements with actual malice, this Court need not resolve at this juncture whether or not Plaintiffs constitute public figures.

Actual malice requires "knowledge that [the statement] was false or … reckless disregard of whether it was false or not." Contrary to Defendant's claims, the complaint makes numerous allegations that go to actual malice: that "Bloom merely relied on tropes and his own pre-existing bigotry and biases, devoid of facts, and he knowingly sought to harm, and did harm, Plaintiffs," that he "deliberately avoided conducting any investigation into Plaintiffs and made zero effort to contact Plaintiffs," that he "has a history of writing anti-Semitic articles that accuse Jews and Israel of manipulating and/or controlling the U.S. government," and that his "publications and pattern of publishing are evidence that he conceived a storyline in advance of any adequate investigation and then consciously set out to insert Plaintiffs into his preconceived narratives as discussed throughout the Complaint."

Other cases have found actual malice in quite similar circumstances. In a defamation case where the plaintiff was accused by media sites of orchestrating the violence at the "Unite The Right" rally in Charlottesville, VA, it was enough for the plaintiff to allege "that Defendants 'twisted' elements of his personal and professional history to fit a pre-conceived narrative." Gilmore v. Jones (W.D. Va. 2019). There, as here, the defendant was alleged to have shoehorned his statements into a preconceived "storyline" and "departed from even the most basic journalistic standards by, for instance, failing to reach out to [Plaintiff]." Accordingly, Plaintiffs' allegations of Defendant's lack of due diligence and shoehorning of their actions into a preconceived narrative about Israelis and Jews are adequate to plead actual malice….

Timothy Hyland (Hyland Law PLLC) and John C. Burns (Burns Law Firm) represent Plaintiffs.

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[Ilya Somin] Federal Circuit Appellate Brief Filed in Our Tariff Case

[Our brief explains why the Federal Circuit should uphold the Court of International Trade decision striking down Trump's "Liberation Day" tariffs.]

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Today, the Liberty Justice Center and I filed our appellate brief in VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs. Our litigation team also now includes Neal Katyal and Michael McConnell, leading constitutional law scholars and appellate litigators on different sides of the political spectrum. It is an honor to work with the two of them and their teams, and with the LJC team led by Jeffrey Schwab.

The case is now before the US Court of Appeals for the Federal Circuit, and we are defending a unanimous ruling in our favor by the US Court of International Trade. As before, the key issue in the case is that the  government claims the International Emergency Economic Powers Act of 1977 (IEEPA) grants the president unlimited power to impose tariffs on any nation, in any amount, for any reason, for any length of time. We argue IEEPA grants no such power, and if it did it would be an unconstitutional delegation of legislative power to the executive. The Court of International Trade rightly ruled that IEEPA does not "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government. We hope the Federal Circuit will reach the same conclusions.

Many of the arguments at the appellate level are the same as those that prevailed below. But we have made a variety of improvements. For example, we explain how the Supreme Court's important recent decision in FCC v. Consumers' Research bolsters our argument that the government's claim to virtually unlimited tariff authority violates the nondelegation doctrine.

Our case is consolidated with one filed by 12 states, led by Oregon, which was decided by the Court of International Trade in the same ruling as ours.

I have written about the issues at stake in this case, in greater detail, here and here. For a complete list of links to my writings about the tariff litigation, see here.

The Liberty Justice Center has issued a statement about today's filing, which I reprint:

On July 8, the Liberty Justice Center continued its legal battle against the Trump Administration's unconstitutional "Liberation Day" tariffs by filing a response brief with the U.S Court of Appeals for the Federal Circuit.

The Liberty Justice Center filed a lawsuit against the "Liberation Day" tariffs on April 14, arguing that the Trump Administration cannot use the International Emergency Economic Powers Act (IEEPA) to justify the imposition of across-the-board tariffs. IEEPA does not mention tariffs at all, and even if the legislation did authorize some tariffs, it is limited to emergencies involving an "unusual or extraordinary threat." Trade deficits—the President's alleged basis for the tariffs—are not unusual, extraordinary, or an emergency. Furthermore, if IEEPA was interpreted to justify the broad tariffs claimed by the President, then it would raise constitutional separation of powers issues.

In May, the Liberty Justice Center secured a major legal victory when the U.S. Court of International Trade unanimously ruled in favor of its clients, holding that the Trump Administration had unlawfully imposed the tariffs under the guise of emergency economic powers. The federal government has since appealed that ruling to the Federal Circuit—and today's filing is the LJC's formal response to that appeal.

The Liberty Justice Center's legal challenge is joined by leading appellate lawyers and constitutional scholars Judge Michael W. McConnell, Neal Katyal, and Ilya Somin.

"The 'Liberation Day' tariffs would be devastating to the economy, to the small businesses we represent, and to the rights of all Americans. The executive branch cannot usurp Congress's authority to impose tariffs without blatantly violating the separation of powers—and it especially cannot fabricate emergencies to justify that violation. We are proud to continue our fight to hold all levels of government accountable to the people and the nation they serve," said Jeffrey Schwab, Senior Counsel and Director of Litigation at the Liberty Justice Center.

Oral arguments in the government's appeal are scheduled for July 31 at 10 am EDT before the U.S. Court of Appeals for the Federal Circuit. The arguments will be available via livestream here. Following the hearing, the Liberty Justice Center will host a media roundtable to discuss next steps in the case and answer questions from members of the press. To RSVP for the roundtable, visit the Liberty Justice Center's media reservations page here.

The government's opening appellate brief is available here.

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[Eugene Volokh] If Companies Set Up Ethnic Affinity Groups for Employees, Must They Also Set Them Up for Jewish Employees? [UPDATE: Microsoft Has Changed Its Policy to Include "Jews at Microsoft"]

[Yes, argues the Brandeis Center in a letter to Microsoft.]

UPDATE 7/8/2025: The Brandeis Center sent out a press release, stating:

The Louis D. Brandeis Center for Human Rights Under Law today commended Microsoft on its decision to equalize its treatment of its Jewish employee network, "Jews at Microsoft" (JAMS), alongside other recognized and funded ethnicity-based employee networks ….

Microsoft's nine top-tier employee networks, designated as Employee Resource Groups (ERGs), were company-recognized, sponsored, and supported organizations of employees within Microsoft based around a particular identifying characteristic, such as ethnicity, that afforded members of that ethnic group extra opportunities for professional development, career advancement, and the ability to collectively oppose discrimination in the workplace. Microsoft hadn't recognized religion as a category of identity permitted to establish an ERG, and refused to recognize the ethnic characteristic of Jewish identity; thus, Microsoft refused to recognize a Jewish ERG, denying Jewish Microsoft employees benefits that are provided to others. This violates Title VII of the Civil Rights Act of 1964.

Microsoft advised its various employee groups today that it is restructuring its employee network program so that all employee groups are equally recognized and funded, including JAMS.

ORIGINAL POST, 5/16/25: From the letter:

We write on behalf of Jewish employees of Microsoft who are also members of the Louis D. Brandeis Center Coalition to Combat Anti-Semitism ("the Coalition") to explain why Microsoft's refusal to establish a Jewish Employee Resource Group (ERG) alongside its existing network of ERGs has resulted in distributing very real professional benefits and advantages on the basis of ethnic or racial identity, while denying these benefits to Jewish and other employees. Providing all employees equal access to professional benefits and opportunities, including Microsoft's Jewish employees, is the right thing to do and is compelled by various federal and local anti-discrimination statutes. Moreover, by denying Jewish employees the very real advantages that Microsoft claims its ERGs bestow, Microsoft has allowed anti-Semitism to fester at Microsoft.

Microsoft's refusal to acknowledge its Jewish employees' right to an ERG seems to stem from a mistaken pigeonholing of Jewish identity as merely "religious," a category of identity that Microsoft excludes from its ERG program. In fact, Jews are a people with a shared ethnic and ancestral heritage. Irrespective of any shared creed or belief in a deity, Jews share a common lineage, history, culture, and language(s). This is the dictionary definition of ethnicity. Jews who never attend synagogue, observe Jewish holidays, practice Jewish religious rituals, or even believe in the religious tenets of Judaism are still ethnically Jewish, an understanding that is widely supported in academic literature and surveys of Jewish American life.

More importantly here, the law recognizes that Jewish identity isn't protected from discrimination based merely on its religious character, but also on its shared ethnic and ancestral heritage (including where protections based on race incorporate ethnicity).

Microsoft's ERGs share common features of ERGs at most Fortune 500 companies. They are employee-led and driven, so that topics of conversation and action come from the employees themselves based on their lived workplace experiences. They connect employees to company  leadership, making it easier to collectively communicate broader workplace equity and inclusion concerns to those with the power to do something about them. They allow employees to represent and express themselves on their own terms, both to corporate leadership and to their colleagues. They facilitate corporate charitable giving to organizations that do work in their communities. And they foster networking and career advancement within the company.

In short, Microsoft's ERGs are a material "term and condition" of employment for Microsoft's workforce and distribute valuable benefits on the basis of identity.

Jewish Microsoft employees are no less deserving or in need of an ERG than other ethnic groups at Microsoft. Currently, Jewish (and other) Microsoft employees are denied various benefits of Microsoft employment:

Unlike their Black colleagues in the "Blacks at Microsoft" ERG, Microsoft's Jewish employees are denied the opportunity "to develop[] and strengthen[] a strong network of [Jewish] leaders at Microsoft which enhances Microsoft's diverse and inclusive culture, and assists in our mission of empowering customers to achieve more."Unlike their Asian, Asian American, and Pacific Islander colleagues in the "Asians at Microsoft" ERG, Microsoft's Jewish employees are denied the opportunity to "bring[] together employees across the company who are dedicated to enhancing Microsoft's diverse and inclusive culture to support all individuals who self-identify as" they do.Unlike their Hispanic and Latinx colleagues in "Hispanic and Latinx Organization of Leaders in Action (HOLA)" ERG, Microsoft's Jewish employees are denied the benefits of an ERG that "provides employee community space, helps inspire future employees and advances the careers of current ones" and which "also serves as a resource to communities and organizations worldwide."Unlike their Indigenous colleagues in "Indigenous at Microsoft" ERG, Microsoft's Jewish employees are denied the opportunity to "foster[] [Jewish] awareness and belonging, building community through sharing knowledge, and integrating [Jewish] traditions and values into our Microsoft culture" and "recruit and retain [Jewish] talent across" Microsoft. {https://www.microsoft.com/en-us/diver...}

Instead, Jewish Microsoft employees are only permitted to organize themselves as an "Employee Community," a structure vastly inferior to an ERG in multiple ways. Employee Communities receive no funding and only limited support from Human Resources and are not allowed to host educational events, participate in inclusive product design programs, or work with external groups outside of the annual Microsoft Give campaign.

Microsoft has refused to allow its Jewish employees to graduate from a mere Employee Community into a full-fledged ERG because Microsoft has chosen to narrowly define Jewish identity as strictly "religious," contrary to how its Jewish employees choose to define themselves. This is evident in Microsoft trying to shoehorn its Jewish employees into the putative "Interfaith ERG."

An Interfaith ERG, by its terms, cannot represent the interests of a vast number of Jewish Microsoft employees who do not define their Jewish identity based on their religious faith as discussed above. Nor can an Interfaith Network serve its Jewish members' unique professional development, anti-discrimination, and community building needs.

In fact, sadly but predictably, the Interfaith ERG project became yet another forum for anti-Semitism at Microsoft. Jewish employees participating in the development of the Interfaith ERG report, for example:

Non-Jewish members of the working group charged with standing-up the Interfaith ERG have stated that the Jewish members "should expect people to blame Jews for what Israel was doing."Members of the working group attempted to make Christian prayers a mandatory opening at meetings.Jewish members were told that they should stop complaining about global anti- Semitism as "Christians and Arabs face more and worse in the world" and that "there were so many countries where Jews were the majority."

This is why, as you must be aware, Jewish employees have "dropped out" of participating in the Interfaith ERG project.

Moreover, Microsoft's insistence on defining Jewish identity inconsistent with its Jewish employees' own self-definition has contributed to an environment that many Jews at Microsoft view as indifferent to anti-Semitism at best and anti-Semitically hostile at worst. Surely a Jewish ERG at Microsoft could have helped Microsoft avoid repeatedly failing to issue appropriate statements condemning rising anti-Semitism similar to its statements concerning other -isms, and failing to recognize important events in the Jewish calendar as Microsoft does for employees of other identities.

It sends a message to the entire Microsoft community that Jewish employees aren't valued when Microsoft refuses to acknowledge Jewish Heritage Month or schedules significant Microsoft community events on major Jewish holidays. For example, the Microsoft 5K, a highlight of the annual Give Campaign, has been scheduled on Rosh Hashanah or Yom Kippur for multiple years. Jewish employees have raised this as an issue preventing their participation, but this did not change until 2025, when it was rescheduled to the summer to benefit intern participation. A Jewish ERG would afford Jewish Microsoft employees the same opportunity for consideration of these basic indicators of acceptance and worth.

It is no wonder, then, that widespread anti-Semitism within Microsoft has erupted since October 7. This includes anti-Semitic graffiti on campus, inappropriate speakers hosted by other Microsoft employee networks, public protests at Microsoft's 50th Anniversary celebration, and anti-Semitic comments on Microsoft's internal chat platform after the October 7 massacre, such as:

"From the river to the sea, Palestine will be free"Referring to Palestine as "the occupied territory of Palestine," and the Israeli Defense Force as the "Israeli Occupying Force," both inaccurate and inappropriateOffensive and absurd accusations that Israel is an apartheid stateDenying Jews the fundamental right to self-determinationOn the Viva Engage internal messaging platform, posts about Microsoft's business and the company itself received multiple negative comments about Israel and the conflict and were not removed.

And because Jewish Microsoft employees lack the "communal" mechanism of an ERG to address anti-Semitism that other employees with ERGs have, anti-Semitism persists at Microsoft. Is it not obvious that the inability of Jewish employees to bring in speakers and conduct programming and training on anti-Semitism in the workplace, as other ERGs have been able to do concerning the discrimination they face, has severely hamstrung efforts, such as they are, to combat anti-Semitism at Microsoft?

The funding, recognition, and institutional support that Microsoft provides to its ERGs is extraordinary. Microsoft is boastful of the professional support and advancement opportunities that it provides its employees of these various ethnicities and shared ancestries.

Microsoft's Jewish employees are every bit as deserving.

That is why the U.S. National Strategy to Counter Antisemitism, released in 2023, expressly calls on employers to "support Jewish employees by promoting employee resource groups, including for Jewish staff." Microsoft needs to heed the government's call, and follow the law, and recognize its Jewish employees' right to establish an ERG on the same terms and conditions as other employees at Microsoft based on their ethnicity or shared ancestry. If other major American corporations can recognize a Jewish ERG, such as Meta, Salesforce, and Squarespace, to name just a few, so can Microsoft.

It's time that Microsoft offers its Jewish and non-Jewish employees every opportunity that is provided to any worker to establish within Microsoft's current network of ERGs. Jewish and non-Jewish employees must be provided ERGs on the same terms and conditions as other employees at Microsoft regardless of their ethnicity or shared ancestry. It's the right thing to do, and it's the law.

We would appreciate the opportunity to meet with you to discuss this issue. In any event, we need to hear back from you by May 24, 2025, or we will take legal action to vindicate Microsoft's Jewish employees' rights.

I can say that some cases treat Jewish as a national origin category—or even, for historical reasons, a racial category—covered by antidiscrimination law. Indeed, much hostility to Jews focuses on their ethnicity, applying equally to secular Jews and religious Jews; such ethnic discrimination is indeed forbidden. Whether this antidiscrimination rule extends to employers' provision of ethnic and racial affinity groups, and the various intangible (but potentially significant) benefits that membership in those groups can provide, is a separate matter. It will be interesting to see what Microsoft says, and what courts say if there is indeed litigation.

UPDATE 5/16/2025, 9:57 am: I originally wrote "Meta" in the subtitle rather than "Microsoft"; my apologies for the error.

The post If Companies Set Up Ethnic Affinity Groups for Employees, Must They Also Set Them Up for Jewish Employees? [UPDATE: Microsoft Has Changed Its Policy to Include "Jews at Microsoft"] appeared first on Reason.com.

[Eugene Volokh] No Sealing of Opinion Related to Guantanamo Detainee (Now Released to Oman)

From Abdullah v. Trump, decided in March by Judge Emmet Sullivan (D.D.C.), and reaffirmed Sunday (with a comment that "in the nearly four months since the Court gave Mr. Abdullah that opportunity, he has not sought to redact any information"):

On December 31, 2024, this Court denied two motions filed by Mr. Abdullah seeking his immediate release from Guantanamo Bay. The Court posted the Order accompanying the Memorandum Opinion on the public docket but posted the Memorandum Opinion under seal and directed the parties to post a public version on the public docket within fourteen days.

On January 6, 2025, Mr. Abdullah appealed the Court's denial of his two motions …. On January 7, 2025, the government filed a notice that it had transferred Mr. Abdullah to Oman. The same day, this Court entered an order denying Mr. Abdullah's Motion for Order Granting Writ of Habeas Corpus as moot ….

On January 28, 2025, [having gotten an extension,] the government filed the redacted public version of the Memorandum Opinion [available here -EV]. Two days later, Mr. Abdullah filed his Motion to Seal in which he asks the Court to permanently seal the Memorandum Opinion ….

Mr. Abdullah's two main arguments for the Court to seal its Memorandum Opinion are that public release after the Memorandum Opinion became unreviewable as moot would: (1) be an impermissible advisory opinion under Article III of the United States Constitution; and (2) "shred what remains" of Mr. Abdullah's privacy interests….

Mr. Abdullah confuses the clearly established Article III limits that relate to whether this Court's Order should be vacated in the D.C. Circuit with this Court's authority to seal and unseal documents on its docket…. "… [S]ince the district court's opinion will remain 'on the books' even if vacated, albeit without any preclusive effect, future courts will be able to consult its reasoning." … [T]he Court [also] views the Guantanamo case that the government cites, Rabbani, as highly persuasive. In Rabbani, another judge on this Court considered a situation in which the habeas petitioner before the Court, Mr. Rabbani, raised issues that were similar to those raised by another habeas petitioner, Mr. Dhiab, who sought a preliminary injunction shortly before being released from U.S. custody, mooting Mr. Dhiab's case. The Court explained that "even if [Mr. Dhiab's'] release subjects [the] Memorandum Opinion [in his case] to vacatur, the persuasiveness of [that opinion's] factual findings and legal reasoning remains intact." …

Mr. Abdullah … asserts that allowing the Memorandum Opinion to be publicly available may cause confusion, as "[a] publicly available opinion would ordinarily be understood to represent what the law is" and that the Court "should not abet a publication which has no legitimate residual function offsetting its inevitable capacity to mislead."

This argument fails. First, it is not at all true that a "publicly available opinion" is necessarily understood to "represent what the law is." It is common knowledge that our judicial system contains levels of review and that a district court opinion is not necessarily the final disposition of a dispute. Even more so here, the docket in this case is clear that Mr. Abdullah appealed the Order to the D.C. Circuit.

Second, in addition to the fact that it would be clear from the docket if the Order is vacated, Mr. Abdullah's concern that the Memorandum Opinion would be erroneously relied upon is overblown as it has no binding authority on any other court. The most it could do is serve as one Court's interpretation of the law, not tested on appeal, that other courts could consider as they reach their own determination of any of the legal issues addressed therein….

The Court is sympathetic to Mr. Abdullah's privacy concerns, especially as he now seeks to rebuild his life following his decades of detention at Guantanamo. However, the government is correct that much of the details about Mr. Abdullah and his detention have been publicly available on the docket in this case for years. Moreover, most of the Court's Memorandum Opinion focused on Mr. Abdullah's legal arguments; it rejected his requests for release or interim relief based primarily on the merits of those legal arguments, not, for example, on a determination of his possible risk if released. The Court expressly did not make a determination that Mr. Abdullah's detention was warranted.

{On the contrary, the Court lamented how Mr. Abdullah's counsel had not shown a legal basis for the Court to be able to consider the Periodic Review Board's determination that Mr. Abdullah posed a limited amount of risk to U.S. security such that it recommended he be transferred. Additionally, the Court's rejection of Mr. Abdullah's argument that the armed conflict or hostilities in which he was alleged to have engaged had ended was based on his counsel's interpretation of the law and import of the U.S. withdrawal from Afghanistan, not, for example, an assessment of Mr. Abdullah's specific alleged involvement with any of the entities against which the United States has engaged in hostilities, as has been at issue in other cases.}

Even though the Court takes seriously Mr. Abdullah's privacy concerns, he has not identified the specific factual information in the Memorandum Opinion that raises such concerns. Nor has he attempted to justify sealing any or all of the Memorandum Opinion based on binding D.C. Circuit precedent that must be considered when weighing privacy interests against public interest in access to information….

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