Eugene Volokh's Blog, page 58

[Eugene Volokh] Magistrate Judge Recommends Not Dismissing Prosecution of Wisconsin Judge Hannah Dugan for Allegedly Interfering with Immigration Arrest

From yesterday's report and recommendation by Magistrate Judge Nancy Joseph (E.D. Wisc.) in U.S. v. Dugan:

The indictment charges as follows:

[Count One:] On or about April 18, 2025, Dugan knowingly concealed E.F.R., a person for whose arrest a warrant and process had been issued under the provisions of the law of the United States, so as to prevent the discovery and arrest of E.F.R., after notice and knowledge of the fact that a warrant and process had been issued for the apprehension of E.F.R., in violation of 18 U.S.C. § 1071[.]

[Count Two:] On or about April 18, 2025, Dugan did corruptly endeavor to influence, obstruct, and impede the due and proper administration of the law under which a pending proceeding was being had before a department and agency of the United States, namely the administrative arrest of E.F.R. for purposes of removal proceedings conducted by the United States Department of Homeland Security, by committing affirmative acts to assist E.F.R. to evade arrest, including:

confronting members of a United States Immigration and Customs Enforcement (ICE) Task Force and falsely telling them they needed a judicial warrant to effectuate the arrest of E.F.R.;upon learning that they had an administrative warrant for E.F.R.'s arrest, directing all identified members of the ICE Task Force to leave the location of the planned arrest (a public hallway outside of Courtroom 615 of the Milwaukee County Courthouse) and go to the Chief Judge's office;addressing E.F.R.'s Milwaukee County Circuit Court criminal case off the record while ICE Task Force members were in the Chief Judge's office;directing E.F.R. and his counsel to exit Courtroom 615 through a non-public jury door; andadvising E.F.R.'s counsel that E.F.R. could appear by "Zoom" for his next court date

[i]n violation of 18 U.S.C. § 1505….

Dugan sought to dismiss the indictment, on the grounds that her actions were protected by judicial immunity; the Magistrate Judge went through a long analysis of the precedents on judicial immunity (dating back to 1607), and summarized it thus:

In the civil context, it is well-established and undisputed that judges have absolute immunity from civil lawsuits for monetary damages when engaging in judicial acts. While it is not always crystal clear what constitutes a "judicial act," the Supreme Court counsels courts to consider whether the act is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. The Court has stated there is an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform. The Court has articulated that judicial immunity is not overcome by allegations of bad faith or malice.

In the criminal context, review of the case law supports the following. First, judges are not immune from criminal prosecution for acts wholly outside their official roles as judges. Dugan cites several examples that fit into this category, such as a state court judge who was convicted of murdering his wife as they watched television at home and a state court judge who was convicted of sexual battery of a female lawyer in his chambers.

Second, judges are not immune from prosecution for the criminal deprivation of constitutional rights under 18 U.S.C. § 242.

And third, judges are not shielded by judicial immunity from criminal prosecution for acts, though related to official duties, are in violation of criminal law. See, e.g., Claiborne, 727 F.2d 842; Wallace v. Powell, 2009 WL 4051974….

Dugan tries to distinguish her case by arguing that the charged acts are "devoid of the self-enrichment or self-gratification that marks earlier cases in which judges were convicted for using judicial status as leverage or opportunity for a bribe, kickback, or favor, or to commit another crime." Again, the distinction that takes these official duty cases out of the shield of immunity is not self-enrichment or the motive of the judge. It is whether the criminal law has been violated. In other words, a judge's actions, even when done in her official capacity, does not bar criminal prosecution if the actions were done in violation of the criminal law.

Furthermore, consider the only case with similar allegations to this case. In United States v. Joseph, a judge on the Massachusetts District Court, Judge Shelley Richmond Joseph, was, similar to Dugan here, federally charged with obstruction of justice and obstruction of a federal proceeding in violation of §§ 1512 and 1505. In that case, an ICE officer working for the Department of Homeland Security arrived at the courthouse to take into custody an individual who had been arrested days earlier who was allegedly the subject of an immigration detainer and warrant based on a final order of removal. The DHS intended to detain the individual and effect his removal from the United States in the event he was released from state custody. Joseph allegedly facilitated this individual's departure from the courthouse using the rear sally port door of the lockup on the courthouse's lower level, rather than through the main door leading from the courtroom to the lobby where the ICE officer was waiting….

I agree that determining whether a warrant establishes probable cause; directing people outside her courtroom to talk with the Chief Judge about a planned arrest; addressing a case off the record; telling people in her courtroom what door to use to re-enter the public hallway; and allowing a party to appear by Zoom are all part of a judge's job. I also agree … that the appellate courts are the proper forum to address disagreements with a trial judge's opinions, errors, or mistakes. However, I do not agree that the case law supports that these judicial acts bar prosecution where the indictment alleges that the acts were done "corruptly" or to facilitate violation of the criminal law.

At bottom, the indictment does not charge Dugan for "opining on the fly," managing her courtroom, or allowing someone to appear by Zoom for future hearings. There are no, and there cannot be, federal statutes criminalizing such conduct. Rather, the indictment charges Dugan with violating federal criminal laws by (1) "knowingly conceal[ing] E.F.R., a person for whose arrest a warrant and process had been issued under the provisions of the law of the United States, so as to prevent the discovery and arrest of E.F.R., after notice and knowledge of the fact that a warrant and process had been issued for the apprehension of E.F.R., in violation of 18 U.S.C. § 107" and by (2) "corruptly endeavor[ing] to influence, obstruct, and impede the due and proper administration of the law under which a pending proceeding was being had before a department and agency of the United States, namely the administrative arrest of E.F.R. for purposes of removal proceedings conducted by the United States Department of Homeland Security, in violation of 18 U.S.C. § 1505."

This conclusion does not leave judges acting in their official capacities or judicial independence at the mercy of prosecutors. As the Ninth Circuit stated in Claiborne, judges enjoy the "same protections as ordinary citizens from vindictive prosecution." A prosecutor seeking to charge a judge of a criminal offense, if proceeding by criminal complaint as was the case here, must satisfy the reviewing judge that there is probable cause a federal crime has been committed. Additionally, the prosecutor must then present his case to a grand jury as required by the Fifth Amendment. And ultimately, the prosecutor must prove each of the elements of the charged offense beyond a reasonable doubt to a unanimous jury of twelve citizens….

The Magistrate Judge also recommended rejecting Dugan's constitutional arguments, which were largely based on the Tenth Amendment. And she concluded that the factual questions related to whether Dugan was guilty had to be resolved at trial, rather than on a motion to dismiss.

Read the whole opinion for much more, including the Magistrate Judge's explanation of why the U.S. v. Trump presidential immunity decision doesn't apply to judicial immunity claims.

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[Josh Blackman] Another Boston Judge Enters Ex Parte TRO Hours After Filing, Without Any Time To Actually Read Filings

[The judge also granted TRO of a statute without even addressing any of the usual factors.]

Today, Planned Parenthood challenged the constitutionality of the Big Beautiful Bill, which cuts funding for the organization. Planned Parenthood chose the District of Massachusetts. The Motion for a TRO was fifty-three pages long. According to press reports, the District Court granted the ex parte TRO within a few hours. (ECF should really start including time stamps, now that the Supreme Court has ruled constructive denials can be measured in minutes.)

Was this even enough time to read the entire brief? To consider it? To give it some thought? Or was this just a reflexive TRO that was granted because the Defendant is the Trump Administration? We saw a similar immediate TRO granted by another Federal District Court Judge in Boston who ruled in favor of Harvard, without any opportunity to actually review the pleadings. Then again, when the Supreme Court holds that District Courts are deemed to constructively deny TROs when they don't rule in a few hours, lower courts take notice. There are no Denny's in Boston. But for those curious, the one Denny's in Lubbock is open 24x7.

You can tell the Judge in the Planned Parenthood case rushed. The order didn't even address any of the usual factors. There was zero analysis whatsoever. I don't see how this is a valid TRO. You need to at least gesture to the four factors.

Worse still, this was a TRO not of an executive action, but of an actual statute that passed bicameralism and presentment. And the judge ordered the executive branch to appropriate money that was expressly unappropriated.

Defendants, their agents, employees, appointees, successors, and anyone acting in concert or participation with Defendants shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood Federation of America and its members; Planned Parenthood League of Massachusetts; and Planned Parenthood Association of Utah.

This is basically an administrative stay of an appropriations statute!

It is not even clear the court's equitable powers supports such a remedy.

The TRO also requires the expenditure of funds not authorized by Congress, in violation of the Appropriations Clause. And SCOTUS held in OPM v Richmond (1990) that not even a court's equitable powers can overcome that bar.

— Trent McCotter (@TrentMcCotter) July 8, 2025

Lower court judges are misbehaving. The Supreme Court sent a clear signal on universal injunctions. I think a similar message needs to be sent about ex parte TROs. You should at least take enough time to "pretend" to read the complaint.

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[Eugene Volokh] "Book on Machine Learning Is Full of Made-Up Citations"

So alleges Retraction Watch (Rita Aksenfeld):

Based on a tip from a reader, we checked 18 of the 46 citations in the book {Mastering Machine Learning: From Basics to Advanced}. Two-thirds of them either did not exist or had substantial errors….

The book's author, Govindakumar Madhavan, asked for an additional "week or two" to fully respond to our request for comment. He did not answer our questions asking if he used an LLM to generate text for the book. However, he told us, "reliably determining whether content (or an issue) is AI generated remains a challenge, as even human-written text can appear 'AI-like.' This challenge is only expected to grow, as LLMs … continue to advance in fluency and sophistication." …

When asked about the potential use of AI in the work, [Springer Nature senior communications manager Felicitas] Behrendt told us: "We are aware of the text and are currently looking into it." She did not comment on efforts taken during Springer Nature's editorial process to ensure its AI policies are followed….

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[Josh Blackman] The Texas Law Deans Provide A Weak Defense of the ABA's Accreditation Role

[If this is the best the law deans can muster, SCOTX should seriously reconsider what value the ABA provides. ]

Last week, I submitted a comment to the Supreme Court of Texas. In short, I argued that SCOTX should discount the opinions of the law school deans, as they do not represent the public interest. I've now reviewed the letter signed by deans from eight law schools, including my own. With respect, I did not find this letter very persuasive. Indeed, if this is the best the law deans can muster, then SCOTX should seriously reconsider what value the ABA provides. By contrast, the letter from University of Texas Dean Bobby Chesney offers a candid and realistic assessment of the costs and benefits of the ABA.

Let's walk through the primary letter, which I suspect was drafted by Dean Leonard Baynes at the University of Houston Law Center. (As a general rule, the lead signature usually belongs to the primary mover.)

First, the letter states that the ABA provides a "baseline of educational quality that correlates with higher bar passage rates." Baylor Law School, which signed the letter, consistently leads the state with a bar passage rate over 90%. Other schools that signed the letter routinely have a passage rate in the 70% range. Does anyone think that the ABA accreditation provides a "baseline" to determine bar passage? No. Bar passage is a combination of incoming class credentials, combined with the "secret sauce." The ABA does require that law schools maintain a minimum level of bar passage. The Supreme Court of Texas could easily impose the same requirement.

Second, the letter contends that removing the ABA's role would harm "the unserved and underrepresented, exacerbating existing access to justice challenges in Texas." Quite the opposite. The ABA is a cartel, which creates massive barriers to entry, and increases the cost of legal education. There are currently no law schools in the Rio Grande Valley, parts of East and West Texas, and the Panhandle. Those markets could be served through innovative approaches. If SCOTX moved on from the ABA, law schools could innovate, and there would be more opportunities to promote access to justice.

Third, the Deans actually complain that removing the ABA's role would make it harder for U.S. News to calculate rankings. This argument may seem persuasive to Deans, but I doubt the Supreme Court of Texas will care much about what a (former) magazine publishes. And it wouldn't be hard for SCOTX to require law schools in Texas to publish these numbers. Indeed, I agree with Seth Chandler that accreditation should move to a formula based on such outputs.

Fourth, the Deans assure SCOTX that the DEI standards are "suspended" Yet, after Students for Fair Admissions, but before Trump's elections, many of these Deans vigorously defended the DEI standards. I am not at all confident the ABA can be trusted if the Damoclean sword is eliminated.

At bottom, all the Deans have to rely on is portability. They worry that students who do not plan to practice in Texas will not attend their schools. But as I explained in my comment, accommodating the needs of students who wish to leave Texas is not exactly in the best interest of Texas.

I think a far better statement comes from UT Law Dean, Bobby Chesney. (It does not seem the Dean of Texas A&M submitted a letter). Chesney explains how the ABA's standards do not simply set a minimum baseline, but instead try to impose "best practices." For example, the current "experiential learning" rule would impose handcuffs on law schools:

Even so, when the ABA Standards not long ago were amended to require every law school to change their graduation requirements such that every student (no matter their career goals and no matter the school's resources) must spend at least six of their credits taking experiential courses, it seemed to many to be an example of the Council growing increasingly comfortable imposing its conception of best practices rather than confining itself to policing the baseline adequacy of the schools. But that original intervention was minor compared to the proposed expansion of this rule currently on the table.

Chesney closes with a call for change:

From that perspective, a well-designed alternative pathway should turn on an intentionally-parsimonious set of benchmarks for baseline adequacy, thus leaving maximum room for innovation. If well chosen, those benchmarks might actually be relatively administrable. They might consist, for example, of relatively-objective input measures such as the credits and particular courses required for graduation, the quantity and qualifications of the faculty, grading policies, etc. But in the spirit of innovation, they probably should as much or more emphasize outcome measures, especially bar passage, employment percentages, and cost-to-salary ratios.

One could err on the side of taking great risk in this way, in hopes of unleashing exciting innovations. Or one could err the other way, cracking the door open only to a limited degree by keeping the benchmarks (particularly requisite bar passage levels) demanding. Either way, however, it would be fascinating to see what might arise should the Court reopen such a pathway given the current climate of innovation, change, and cost concerns. I hope the Court will give some version of it a shot; it seems the Texas thing to do.

I agree with Chesney.

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[Josh Blackman] SCOTUS Bends The Law In Yet Another Obamacare Case

[Kennedy v. Braidwood Management, Inc. follows in the ignoble tradition of NFIB, King, and California.]

For more than a decade, it seems that different rules apply to Obamacare cases. In NFIB v. Sebelius (2012), a penalty was rewritten into a tax, and a mandatory Medicaid expansion was rewritten into a voluntary program. In King v. Burwell (2014), "established by the State" was rewritten as "established by the federal government." In California v. Texas (2021), the Court found that the plaintiffs waived a standing argument that was clearly invoked. And so on. When health care is at issue, all the usual rules go out the window.

The latest ACA case continues the trend. Kennedy v. Braidwood Management, Inc. is an Appointments Clause case. Yet, the Court resolves this dispute based on a theory not developed below. Justice Thomas's dissent explains what happened:

This case concerns the U. S. Preventive Services Task Force, a body that issues legally binding recommendations regarding preventive healthcare treatments. At the beginning of this suit, a subordinate official within the Department of Health and Human Services (HHS) had for years appointed the Task Force's members. Everyone now agrees that this practice was unlawful. Everyone further agrees that no one statute provides for a department head to appoint the Task Force's members. But, rather than accept that the default mode of appointment applies, the Government invented a new theory on appeal, arguing that the combination of two ambiguously worded statutes enacted decades apart establishes that the Secretary of HHS can appoint the Task Force's members. The Court today rushes to embrace this theory. I cannot. To begin with, I would not rule on the Government's new theory before any lower court has done so.

Thomas writes that two questions are presented, but the Fifth Circuit only considered the latter question:

I would remand for the Fifth Circuit to consider the important threshold question that it skipped: whether the Secretary has the statutory power to appoint the Task Force. The Secretary may appoint the Task Force's members only if (1) Congress has vested in the Secretary the power to appoint them, and (2) the members are inferior officers under the Appointments Clause. The answer to the first question significantly affects the analysis of the second question. But, no court has passed on the first question, and this Court has had only a limited opportunity to consider it.

And the novel theory the Court relied on was based on the Reorganization Plan of 1966 (not a statute). This Plan could not vest the Executive with new powers that did not exist in 1966. Yet, that is exactly what the government argued here.

Thomas explains:

Here, the purpose of a "reorganization" plan is to "give a definite and orderly structure to" a department's existingfunctions, not to create new functions that a departmentcannot otherwise lawfully perform. Oxford English Dictionary 923–924 (2d ed. 1989) (defining "organize"). A plan may not, "under the guise of consolidating and rearranging, . . . creat[e] authority in the Executive Branch which had not existed before." Dept. of Justice, Office of Legal Counsel,Memorandum of William H. Rehnquist, Assistant Atty.Gen. (Sept. 11, 1969), in Reorganization Plan No. 1 of 1969 (ICC): Hearing before the Subcommittee on Executive Reorganization of the Senate Committee on Government Operations, 91st Cong., 1st Sess., 29 (1969) (Rehnquist Memorandum). Yet, that is precisely what the Government'sreading accomplishes, since, without the ReorganizationPlan, the Executive has no power to appoint the Task Force outside the gauntlet of Senate confirmation.

Seth Barrett Tillman and I wrote about the Rehnquist opinion here.

Justice Thomas also gets a good dig in about how Justice Kavanaugh focus on executive branch practice:

The intervening passage of the ACA also makes the majority's appeals to "consistent Executive Branch practice" fall flat. Ante, at 31 (citing Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024)).The Government concedes that its practice from 2010 until its appeal inthis suit was for the AHRQ Director to appoint Task Force members invalidly, based on the mistaken view that the members were not officers. See Brief for Federal Defendants in Braidwood Mgmt., Inc., No. 23– 10326 (CA5), ECF Doc. 159, pp. 31, n. 2, 41. The practice thus sheds no light on whether the Director's convening power constitutes an express vesting of appointment authority that overcomes the constitutional default. And, surely this Court did not overrule Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), only to defer to concededly unlawful executive action.

There is a big problem with Justice Kavanaugh's fixation on tradition. At bottom, it is a deference doctrine, where unlawful conduct can become lawful if it continues.

In the normal course, the Supreme Court would have remanded the case to the lower court. But it seemed pretty clear that the Supreme Court did not want to give the Fifth Circuit another crack at this case, so the majority went ahead and decided this novel issue from scratch.

Here is your regular reminder that President Trump could have, but didn't, elevate his Fifth Circuit appointees to the Supreme Court.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Eugene Volokh] $6K Sanctions for Apparent AI Hallucinations in Coomer v. Lindell / My Pillow Election-Related Libel Suit

From Judge Nina Wang (D. Colo.) today in Coomer v. Lindell:

In preparation for trial in this matter, the Court issued a Trial Preparation Order that set certain deadlines, including for the filing of motions in limine. The Trial Preparation Order further informed the Parties that any pending motions in limine would be discussed at the Final Pretrial/Trial Preparation Conference…. Defendants … filed a Brief in Response to [a] Motion in Limine ("Opposition") [Doc. 283] … [that] contained … "nearly thirty defective citations" ….

[At a hearing,] Mr. Kachouroff [lead counsel for Defendants] was unable to respond [about the defective citations] in a manner that was satisfactory to the Court. Specifically, Mr. Kachouroff indicated that he had delegated citation checking for the Opposition to his co-counsel, … Ms. DeMaster …. [T]he Court ordered Mr. Kachouroff and Ms. DeMaster to show cause why they should not be sanctioned and referred to their respective state bars for disciplinary proceedings….

In [their] Response, Defendants represented that counsel "was unaware of any errors or issues with his response filed 55 days earlier, and had no reasonable opportunity to investigate any problem to be able to engage in constructive discussion about Doc. No. 283." Defendants further asserted that "[a]fter the hearing and having a subsequent opportunity to investigate Doc. 283, it was immediately clear that the document filed was not the correct version. It was a prior draft. It was inadvertent, an erroneous filing that was not done intentionally, and was filed mistakenly through human error. Counsel acted swiftly to rectify the error." Defendants submitted additional materials for the Court's consideration and certified that the record is complete with respect to the Order to Show Cause….

The court was unpersuaded by the Response, and concluded:

Mr. Kachouroff and Ms. DeMaster have violated Rule 11 because they were not reasonable in certifying that the claims, defenses, and other legal contentions contained in Defendants' Opposition to Motion in Limine [Doc. 283] were warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. Nor is this Court persuaded by counsel's contention that that the "correct" version, i.e., 2025.02.24 Coomer Defs Opp to MIL2 (jd) – copy, was prepared and ready to file on February 25, 2025, and the filing of the Opposition at [Doc. 283] was simply an inadvertent error, given the contradictory statements and the lack of corroborating evidence….

[F]ederal courts rely upon the assistance of attorneys as officers of the court for the efficient and fair administration of justice. "… [T]he court is entitled to expect a reasonable level of competence and care on the part of the attorneys who appear before it, and to expect that claims submitted for adjudication by those attorneys will have a rational basis." …

The court had also earlier noted:

Mr. Kachouroff[ stated] that "Doc. 283 represents a clear deviation from what my practice has been, and given the number of errors, it is just as reasonable to presume that the document could have been a mistake, especially when I commented during the hearing that this must have been a draft." But this assertion is belied by similar conduct before a different federal court.

The Court takes judicial notice that, just seven days after this Court issued the Order to Show Cause, the same defense counsel team quietly filed two Notices of Errata regarding their briefing in Pelishek v. City of Sheboygan, No. 2:23-cv-01048-WED (E.D. Wis. Apr. 30, 2025), ECF Nos. 160, 162. Those errata demonstrate the same type of errors in the filed Opposition, including citations to cases that do not exist.

The court therefore imposed $3000 in sanctions on each of the defense counsel, though not on the clients ("[b]ecause Mr. Kachouroff 'confirm[ed] that I did not advise Defendants that I use a myriad of AI tools in my practice such as Microsoft Word's Co- Pilot, Westlaw's AI, Google's Gemini, X's Grok, Claude, ChatGPT, Perplexity, and others'").

For more on the story, see this earlier post.

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[Eugene Volokh] "Too Often," Requests to Seal Are "Granted Because It Is Easier to Leave Something Sealed Than It Is to Explain Why It Should Be Unsealed"

From Tuesday's decision by Judge Richard Seeborg (N.D. Cal.) in In re: Xyrem (Sodium Oxybate) Antitrust Litigation:

In the course of this complex and hard-fought multidistrict litigation, the parties have moved to seal some component of nearly every motion they filed. Too often, in this case and others, such requests are granted because it is easier to leave something sealed than it is to explain why it should be unsealed. As a result, the records of the federal judiciary are replete with documents that the public cannot access simply because a party designated it confidential.

This order addresses the sealing motions pending on the docket. As explained in more detail below, such motions fail to meet the "compelling reason" standard that generally applies to merits-related materials in courts of the Ninth Circuit. The motions are therefore denied….

Federal courts are public. Their dockets should largely remain publicly accessible except in the relatively narrow instances where parties provide compelling reasons to the contrary. As to the above sealing motions, the parties' submissions to the court are neither compelling nor sufficiently weighty to overcome the presumption of public access. Thus, the motions are denied.

To his credit, Judge Seeborg writes over 5000 words dealing with the details of the attempts to seal many different kinds of filings; read the opinion for more.

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[Eugene Volokh] May Judge Order Divorcing Parent to Include Disclaimer With All Future Child Abuse Allegations?

[A trial judge had found that the mother had "intentionally weaponized" child abuse reports, and required her to so state in any future child abuse allegations made to authorities.]

In last week's Peterson v. Rush (Pa. Super. Ct.), the trial court had given shared legal and physical custody of a daughter to the mother and father, but also stated this:

I am, therefore, going to order Mother that, to the extent that she has concerns over child abuse, obviously any concerns regarding child abuse need to be reported to authorities, but they must now be reported with a disclaimer [(Disclaimer)]: "The [c]ourt made a finding of fact at the conclusion of a one-day trial on September 10, 2024, that Mother has intentionally weaponized the [Protection From Abuse], I[ndirect] C[riminal] C[ontempt], and child abuse process[es] in an effort to gain an advantage in custody proceedings." Mother should then further inform the providers that: "Nevertheless, all legitimate allegations or concerns of child abuse should be fully investigated as required by law." I am ordering Mother to make those two statements in any further child abuse reports so that a proper context is had….

On appeal, Judge Anne Lazarus, joined by Judge Timika Lane, upheld this condition:

Because Mother did not raise or even suggest a free speech claim in her Rule 1925(b) statement, the issue is waived on appeal. However, even if we did not find this issue waived, Mother would not be entitled to relief. {First Amendment protections historically encompass prohibitions on speech as opposed to compelled speech. See In the Int. of J.J.M. (Pa. 2021) ("First Amendment 'made applicable to the States through the Fourteenth Amendment, provides that 'Congress shall make no law … abridging the freedom of speech.'"); citing U.S. CONST. amend. I. In any event, the court was justified in requiring Mother to disclose the information contained within the Disclaimer where it bears directly upon "the important governmental interest of protecting the psychological and emotional well-being of Child[.]" S.B. v. S.S. (Pa. 2020).}

Judge Mary Jane Bowes dissented on this point:

Mother plainly raised a civil rights challenge in her statement, which the trial court understood to reproach the order's infringement on her right to freedom of speech. As such, I do not deem waiver to apply….

[T]he Supreme Court … has held time and again that "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard (1977)…. "It is … a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say." … "There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say." …

[T]he Majority alternatively states that, "[i]n any event, the court was justified in requiring Mother to disclose the information contained within the Disclaimer where it bears directly upon 'the important governmental interest of protecting the psychological and emotional well-being of Child[.]'" It is beyond peradventure that protecting children is a compelling government interest. However, that is not dispositive of Mother's claim.

In order to justify the restriction on Mother's First Amendment rights, the trial court's mandate must both rest upon an evidentiary foundation supporting the finding that the forced speech furthers that compelling state interest and be narrowly tailored to do so….

I discern no evidence that the compelling government interest in protecting Child was what prompted this aspect of the custody order…. My review of the transcript of the proceedings suggests that the trial judge instead sought to protect Father, not Child, through this directive. Although he expressed "concerns" about "alienating effects" of Mother's "weaponization" of reporting to gain an advantage in the litigation, he declined to find that Mother attempted to turn Child against Father or that Mother was less likely to attend to Child's emotional needs.

I deem a more specific evidence-based finding necessary to justify this order. Accord Rogowski v. Kirven (Pa. Super. Ct. 2023) (vacating portion of custody order restricting the child's use of the terms "mom" and "dad," and compelling the parties to correct the child if she referred to a non-biological parent by the term, because there was no finding by the trial court that "use of the terms 'Dad' and 'Daddy' to refer to Stepfather posed a tangible risk of harm to the [c]hild"); McClendon v. Long (11th Cir. 2022) (ruling sheriff's placement of signs stating "STOP" and "NO TRICK-OR-TREAT AT THIS ADDRESS" in the yards of registered sexual offenders violated the First Amendment where the government failed to offer evidence that the persons compelled to display the message "actually pose[d] a danger to trick-or-treating children or that these signs would serve to prevent such danger").

Furthermore, assuming arguendo that the order was designed to further the compelling interest of protecting Child, the certified record contains no indication that Judge Stambaugh even contemplated whether his directive was narrowly tailored to further that objective.I observe that several courts facing challenges to compelled speech have found First Amendment violations for want of narrow tailoring to achieve the goal of protecting children. See, e.g., McClendon (holding the government failed to show that the signs were narrowly tailored to "accomplish the compelling purpose of protecting children from sexual abuse" when the offenders were already under an imposed restriction to avoid trick-or-treaters); Sanderson v. Bailey (E.D. Mo. 2024) (ruling portion of state Halloween statute mandating the posting of a sign stating "no candy or treats at this residence" was unconstitutional compelled speech because it was not narrowly tailored to protect children where there were "other effective alternatives to achieve that interest").

Here, I discern no indication that the trial judge considered alternative means to achieve the goal of discouraging Mother from "weaponizing the child abuse process" rather than compelling her to state the Disclaimer the judge drafted if she made a future report of abuse. Meanwhile, I readily ascertain that he could have, for example, informed Mother that she would be held in contempt if she continued to make unfounded accusations for improper purposes, or authorized Father to disseminate that statement to the relevant authorities should he be faced with an investigation. Instead, the judge imposed a content-based restriction on Mother's free speech rights without acknowledging that they were implicated, let alone explaining why it deemed the order necessary to further his unspecified goal.

I would hold that the First Amendment requires a far more thorough foundation for the state's incursion upon Mother's "decision [about] what to say and what not to say" than what the trial judge established in this case….

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[Josh Blackman] Today in Supreme Court History: July 7, 1893

7/7/1893: Justice Samuel Blatchford dies.

Justice Samuel Blatchford

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