Eugene Volokh's Blog, page 6

[Ilya Somin] Federal Court Rules Trump Can't Deny Federal Disaster Relief Funds to Sanctuary States

[Another in a long line of court decisions striking down Trump efforts to attach conditions to federal grants that were not approved by Congress.]

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Earlier today, in Illinois v. FEMA a federal district court ruled the Trump administration cannot deny federal disaster relief aid to "sanctuary" states that limit assistance to federal efforts to deport undocumented immigrants. The suit was brought by twenty state governments, led by the state of Illinois, and by the District of Columbia. This is the latest in a long line of decisions striking down Trump Administration efforts to impose immigration-related conditions on federal grants to state governments, even though those conditions were never authorized by Congress.

Federal District Judge William E. Smith (a Republican George W. Bush appointee) ruled the Trump conditions violated the Spending Clause of the Constitution in three ways: the conditions are ambiguous, they aren't related to the purposes of the grants in question, and they are onerous enough to be coercive:

First, the Court finds that the contested conditions are not reasonably related to the purposes of the grants to which they attach. DHS justifies the conditions by pointing to its broad homeland security mission, but the grants at issue fund programs such as disaster relief, fire safety, dam safety, and emergency preparedness. Sweeping immigration-related conditions imposed on every DHS-administered grant, regardless of statutory purpose, lack the necessary tailoring. The Spending Clause requires that conditions be "reasonably calculated" to advance the purposes for which funds are expended, [South Dakota v.] Dole, 483 U.S. at 209, and DHS has failed to demonstrate any such connection outside of a few programs like Operation Stonegarden. The Court therefore concludes that the conditions are overbroad and unrelated to the underlying programs.

Second, the Court finds that the conditions are coercive. The record shows that states rely on these grants for billions of dollars annually in disaster relief and public safety funds that cannot be replaced by state revenues. Denying such funding if states refuse to comply with vague immigration requirements leaves them with no meaningful choice, particularly where state budgets are already committed. The financial pressure here goes well beyond the "relatively mild encouragement" approved in  Dole, 483 U.S. at 211, and amounts instead to "economic dragooning" of the sort condemned in NFIB [v. Sebelius], 567 U.S. at 582. The coercion is even more pronounced because the threatened funds involve essential public safety responsibilities rather than optional or peripheral programs.

Third, the Court holds that the conditions are unlawfully ambiguous. The Spending Clause requires clarity so that states may exercise their choice knowingly. Here, DHS required states to provide "cooperation" and participate in "joint operations" and
"information sharing," but without defining what compliance entails. Likewise, the prohibition on operating programs that "benefit illegal immigrants" or "incentivize illegal immigration" provides no meaningful standards and is hopelessly vague. States cannot predict how DHS will interpret these vague terms, yet they risk losing billions in federal funding for any perceived violation. Such ambiguity deprives the states of the ability to  make informed decisions, rendering the conditions constitutionally
invalid.

During Trump's first term, his administration lost numerous lawsuits over issues like this one. Last November, I predicted we would see a repetition of this pattern  in his second term. It wasn't a hard prediction, and I don't claim any great credit for it. Sure enough, Trump 2.0 has indeed lost multiple cases over its attempts to impose grant conditions on sanctuary jurisdictions. Today's ruling follows  a similar April decision addressing a variety of federal grants, and one in June dealing with transportation grants.

In the November 2024 post, I noted longstanding Supreme Court precedent holds that conditions on federal grants must 1) be enacted and clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (here, transportation grants cannot be conditioned on immigration enforcement), and 3) not be "coercive."

In the disaster aid case, the court seems obviously right to conclude the Trump conditions violated the first and second of these requirements. I would add that, in addition to being ambiguous, the conditions also were never authorized by Congress. And, Congress, not the executive controls the spending power.

Whether the disaster aid conditions are also "coercive" is more debatable. The Supreme Court's jurisprudence on coercive grants is far from a model of clarity. NFIB v. Sebelius (2012), cited in today's ruling famously held that a condition onerous enough to be a "gun to the head" is coercive, but doesn't clearly explain exactly where the line between coercion and mere inducement is. I suspect that states actually vary as to the extent of their dependence on federal disaster aid, and therefore the conditions here may be coercive as to some states, but perhaps not others. Regardless, they were rightly invalidated on the other two grounds.

Today's ruling also holds that the disaster aid conditions violated the Administrative Procedure Act. I will leave that issue to others with greater expertise. I will also pass by the procedural mootness issue addressed by the court.

There is, I think, a good policy argument for reducing federal disaster aid to state governments, and leaving most disaster relief to state, local, and private initiative. But that doesn't mean the executive should be able to use disaster relief as leverage to control state policy on unrelated issues. More generally, as I have long argued, executive-imposed spending conditions are a major threat to both federalism and separation of powers.  Today's  ruling, and others like it, help stave off that danger.

They also reinforce Steve Vladeck's point that the judiciary is resisting Trump's power grabs more effectively than many think. The second Trump Administration, like the first, keeps losing sanctuary city cases, and so far they have not tried to get them to the Supreme Court (probably because they know they are like to lose there, too). Because the issue has not reached the Supreme Court, and because there is so much else going in the news cycle, these cases have not attracted much public and media attention. But they nonetheless have substantial real-world effects. Had they gone the other way, Trump would have many more levers to compel state and local governments to do his bidding. That doesn't mean courts are doing everything right (they aren't), or that they can curb Trump's illegal policies entirely on their own (the latter requires a strategy combining litigation and political action). But they are making a real difference.

For more on the issues at stake in these sorts of conditional spending cases, see my Texas Law Review article assessing litigation arising from Trump's first-term attacks on sanctuary jurisdictions. In that article and other writings, I also explain why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and help protect our constitutional system.

The post Federal Court Rules Trump Can't Deny Federal Disaster Relief Funds to Sanctuary States appeared first on Reason.com.

[Eugene Volokh] Court Blocks Impending Firing of South Dakota Art Professor for Vulgar Tweet Calling Charlie Kirk a "Hate Spreading Nazi"

From today's decision by Judge Karen Schreier (D.S.D.) in Hook v. Rave:

Hook is a tenured Professor of Art at the University of South Dakota. He has taught at the University since 2006.

In the late afternoon on September 10, 2025, while at home and off work, Hook posted the following message concerning the recent shooting and killing of Charlie Kirk to his private Facebook account:

Okay. I don't give a flying f*** [the original reads "fuck" -EV] about this Kirk person. Apparently he was a hate spreading Nazi. I wasn't paying close enough attention to the idiotic right fringe to even know who he was. I'm sorry for his family that he was a hate spreading Nazi and got killed. I'm sure they deserved better. Maybe good people could now enter their lives. But geez, where was all this concern when the politicians in Minnesota were shot? And the school shootings? And Capitol Police? I have no thoughts or prayers for this hate spreading Nazi. A shrug, maybe.

Approximately three hours later, while still at home and off work, Hook removed the above message and made a second post. The second post stated:

Apparently my frustration with the sudden onslaught of coverage concerning a guy shot today led to a post I mow [sic] regret posting. I'm sure many folks fully understood my premise but the simple fact that some were offended, led me to remove the post. I extend this public apology to those who were offended. Om Shanti.

Around noon on September 12, 2025, South Dakota Speaker of the House Jon Hansen [and] {also a 2026 candidate for South Dakota Governor} shared a screenshot of Hook's first post and included the following message:

Yesterday, I was made aware of these hateful and vile comments made by a University of South Dakota professor regarding the death of Charlie Kirk and Charlie's family. I am disgusted by his remarks, and think they are unbecoming of someone who works for and represents our University. Yesterday, after seeing the post, I immediately reached out to USD President Sheila Gestring and called on the professor to be fired. I understand that the professor is likely to be terminated from his position. I will keep you posted on the final decision. That kind of disgusting rhetoric from an employee and representative of our university directed toward a good man's family who was recently assassinated will not be tolerated.

A few hours later, South Dakota Governor Larry Rhoden also shared a screenshot of Hook's first post and included the following message:

When I read this post, I was shaking mad. The Board of Regents intends to FIRE this University of South Dakota professor, and I'm glad.

This individual stands in front of South Dakota students to educate them. We must not send the message to our kids that this is acceptable public discourse.

We need more Charlie Kirks on campus and less hatred like this.

Around the same time, Hook received a letter from Kelley notifying Hook of Kelley's "intent to terminate [Hook's] contract as Professor with The University of South Dakota." The letter explained that the reason for Hook's termination was due to violations of SDBOR Policies 4.4.8 and 1.6.1. SDBOR Policy 4.4.8 provides:

Neglect of duty, misconduct, incompetence, abuse of power or other actions that manifest an unfitness to discharge the trust reposed in public university faculty members or to perform assigned duties.

SDBOR Policy 1.6.1 provides:

Faculty members are members of a learned profession. When they speak or write as private citizens on matters of public concern, they must be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As learned people and as educators, they should remember that the public may judge their profession and their institution by their utterances. Hence, they should at all times be accurate, show respect for the opinions of others and make every effort to indicate when they are not speaking for the institution.

The court concluded that Hook had a "fair chance" of prevailing on his First Amendment challenge to the impending firing, and therefore issued a temporary restraining order reinstating Hook from administrative leave (and blocking his firing for the next two weeks):

Because Hook spoke as a citizen and on a matter of public concern, [his speech protected unless] defendants have "produced evidence to indicate the speech had an adverse impact on the efficiency of the [University's] operations." If the court determines there is an adverse impact, then the court applies the balancing test laid out in Pickering v. Board of Education (1968). But "[w]here there is no evidence of disruption, resort to the Pickering factors is unnecessary because there are no government interests in efficiency to weigh against First Amendment interests."

At this stage, defendants have failed to put on evidence that Hook's "speech had an adverse impact on the efficiency of the [University's] operations." Defendants allege that in the days following Hook's post, "hundreds of calls and message were made to the Board of Regents and/or the University of South Dakota commenting negatively regarding the comment or calling for the removal of Professor Hook." But "[m]ere allegations the speech disrupted the workplace or affected morale, without evidentiary support, are insufficient." See also Melton v. City of Forrest City, Ark. (8th Cir. 2025) (finding insufficient evidence of disruption where defendants only alleged that "'several' police officers and city-council members were upset and 'phone lines [were] jammed' with calls from concerned citizens"). Defendants have not demonstrated that there was any disruption to on-campus activities, Hook's teaching lessons, or the University's operations. And without more, "such 'vague and conclusory' concerns … runs the risk of constitutionalizing a heckler's veto." Thus, because defendants have failed to demonstrate any evidence of disruption, the court need not consider the Pickering factors at this stage….

Defendants are required to temporarily set aside their determination to place Hook on administrative leave. Defendants shall reinstate Hook's position as a Professor of Art at the University of South Dakota, retroactive to September 12, 2025, to remain effective until the preliminary injunction hearing on Wednesday, October 8, 2025, at 9:00 a.m. in Sioux Falls Courtroom 2.

Here's a similar, though not identical, analysis from the Third Circuit two weeks ago in the Jason Jorjani case (though at a different stage of that lawsuit), which I blogged at the time:

New Jersey Institute of Technology declined to renew a lecturer's contract based on his private comments about race, politics, and immigration. But NJIT's regulation of speech outside the classroom and off the campus is subject to the restraints of the First Amendment, and the school documented no disruption to its educational mission….

NJIT hired Jason Jorjani in 2015 to teach philosophy, and twice renewed his contract in 2016 and 2017. During this time, Jorjani "formed the Alt Right Corporation," to "widen the message of his philosophy, which he describes as an affirmation of the Indo-European Tradition" and "the idea that European cultures are intimately related to those of Greater Iran and the Persianate World, Hindu India and the Buddhist East and are the sources the [sic] world's greatest scientific, artistic and spiritual developments." He spoke at conferences and published an essay titled "Against Perennial Philosophy" on "AltRight.com," a website he helped found. In the essay, he argued that "human racial equality" is a "left-wing myth" and that a great "Promethean" "mentality" rests on a "genetic basis" which "Asians, Arabs, Africans, and other non-Aryan peoples" lack.

The essay also argued that, through "genetic engineering" and eugenic "embryo selection," Iran could produce great philosophers by "restor[ing] the pre-Arab and pre-Mongol genetic character of the majority of the Iranian population within only one or two generations." Jorjani did not discuss these outside associations with his students or colleagues, nor did he disclose them as required by NJIT policy.

Then, in 2017, a person posing as a graduate student contacted Jorjani to discuss "how the Left persecutes and silences Right wing thought in academia." But he was working with a group called "Hope Not Hate," whose goal is to "deconstruct[ ]" individuals it deems "fascist" or "extremist." The two met at a pub where the undercover operative recorded their conversations, at first with Jorjani's consent. But later, apparently assuming the recording had stopped, Jorjani commented on matters concerning race, immigration, and politics.

The meeting became a piece published by the New York Times featuring a video excerpt from Jorjani's remarks at a conference characterizing "liberalism, democracy, and universal human rights" as "ill-conceived and bankrupt sociopolitical ideologies," before cutting to the secretly recorded portion of Jorjani's conversation where he predicts "[w]e will have a Europe, in 2050, where the banknotes have Adolf Hitler, Napoleon Bonaparte, Alexander the Great. And Hitler will be seen like that: like Napoleon, like Alexander, not like some weird monster, who is unique in his own category."

The day after the Times piece was published, NJIT's President emailed all faculty and staff, denouncing Jorjani's statements as "antithetical" to NJIT's "core values." NJIT's Dean of the College of Science and Liberal Arts sent a separate email echoing those sentiments. In the following days, NJIT received some unverified number of calls and, at most, fifty emails expressing concern about Jorjani's recorded comments and his membership on the faculty. Faculty chimed in too, highlighting the content of Jorjani's "Against Perennial Philosophy" essay.

Six days after the New York Times posted the article, NJIT sent a letter to Jorjani placing him on paid leave, explaining the article 1) "caused significant disruption at the university" that NJIT believed would "continue to expand," and 2) revealed "association with organizations" that Jorjani did not disclose on his outside activity form, despite prior direction to fully update the form the preceding Spring. The letter advised Jorjani that NJIT planned to investigate whether he had violated university policies or State ethics requirements.

Fallout continued with NJIT's Department of Biology penning a statement published in the student newspaper asserting "Jorjani's beliefs, as revealed by his remarks, cannot help but produce a discriminatory and intimidating educational environment for [NJIT's] diverse student body." The Faculty Senate followed suit, releasing an "Official Faculty Senate Statement," explaining that "NJIT is a university that embraces diversity and sees that diversity as a source of strength. The NJIT Faculty Senate finds racist pronouncements made by University Lecturer Jason Reza Jorjani to be morally repugnant. Hate and bigotry have no place on the NJIT campus." The Department of History also joined the fray, demanding Jorjani's termination and asserting his "published beliefs create a hostile learning environment for students of color in particular." …

Jorjani was eventually fired, and the District Court "conclude[d] that Jorjani's speech was not protected by the First Amendment because 'Defendants' interest in mitigating the disruption caused by Plaintiff's speech … outweighs Plaintiff's interest in its expression.' Seeing error in that conclusion, we will vacate and remand."

The Court of Appeals in Jorjani articulated the legal standard for when the government may discipline or fire employees based on their speech (even if it couldn't imprison or fine ordinary citizens for their speech), pretty much the same standard as the one the District Court just applied in Hook:

"[T]o state a First Amendment retaliation claim, a public employee plaintiff must allege that his activity is protected by the First Amendment, and that the protected activity was a substantial factor in the alleged retaliatory action." If those two requirements are satisfied, the burden shifts and the employer must show "the same action would have been taken even if the speech had not occurred."

A public employee's speech is protected if 1) "the employee spoke as a citizen," 2) his "statement involved a matter of public concern," and 3) "the government employer did not have 'an adequate justification for treating the employee differently from any other member of the general public' as a result of the statement he made." In assessing the third prong, we "balance … the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Ed. (1968). So "the more substantially an employee's speech involves matters of public concern, the higher the state's burden will then be to justify taking action, and vice versa." …

This standard leaves considerable room for a version of the "heckler's veto," under which someone's speech may be punished because it causes a hostile reaction by offended listeners. (So does the District Court's opinion in Hook, since it prevents a "heckler's veto" only if the hecklers are heckling only slightly, and thus in a way that doesn't cause "any disruption to on-campus activities, Hook's teaching lessons, or the University's operations.")

When the government is administering the criminal law or civil liability, such a "heckler's veto" is generally not allowed: The government generally can't shut down a speaker, for instance, because his listeners are getting offended or even threatening violence because they're offended. But in the employment context, the Pickering balance often allows government to fire employees because their speech sufficiently offends coworkers or members of the public. Perhaps this stems from the judgment that employees are hired to do a particular job cost-effectively for the government, and if their speech so offends others (especially clients or coworkers) that keeping the employees on means more cost for the government than benefit, the government needn't continue to pay them for what has proved to be a bad bargain.

Still, when it comes to public university professors, especially as to their off-the-job speech, courts have often applied the Pickering balance in a way that deliberately offers more speech protection (though perhaps not the same speech protection as ordinary citizens enjoy when it comes to the criminal law). That is what the Third Circuit did in Jorjani (though the District Court didn't see the need to formally consider any possible special rule for university professors, since its holding as to lack of disruption would prevent the firing of pretty much any government employee). To illustrate the Third Circuit's reasoning, I underline the passages supporting such extra protection, and italicize the passages that seem to leave open room for some sort of heckler's veto:

NJIT's actions do not pass the ordinary Pickering analysis on this record. The parties agree that Jorjani spoke as a private citizen on a matter of public concern. So we consider only whether the distractions NJIT identified as flowing from Jorjani's speech outweigh interest in his discussion. They do not….

Begin with interest in Jorjani's speech, which cannot "be considered in a vacuum" as "the manner, time, and place of the employee's expression are relevant." Jorjani's speech occurred entirely outside NJIT's academic environs. His theories, even if lacking in classical rigor, remain of public import. It matters not that his opinions do not enjoy majoritarian support, since "the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Matal v. Tam (2017)….

Against that interest, we weigh NJIT's need "as an employer" to promote "the efficiency of the public services it performs." NJIT points only to the "disruption" that followed the publication of Jorjani's remarks consisting of certain students' disapproval of Jorjani's speech, disagreement among faculty, and administrators fielding complaints. We "typically consider whether the speech impairs discipline or employee harmony, has a detrimental impact on close working relationships requiring personal loyalty and confidence, impedes the performance of the speaker's duties, or interferes with the enterprise's regular operations." And we focus mostly on what happened, not what might have been, because although NJIT can act to prevent future harms, and need not "allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest," it must ground predictions in reason, not speculation. The minimal evidence of disruption that NJIT cites differs little from the ordinary operation of a public university and therefore cannot outweigh interest in Jorjani's speech.

First, there is no support for NJIT's contention that student disapproval of Jorjani's speech disrupted the administration of the university. Some students and alumni disagreed with Jorjani's views. But NJIT never identified the exact number of calls or complaints made in person or writing, nor any details about the students' concerns. And although Jorjani said that he perceived a "huge change in attitude toward [him] on the part of [his] students," NJIT points to no objective evidence that students questioned Jorjani's ability to teach, grade, or supervise his classes evenly, beyond one administrator recalling a student dropped Jorjani's class. Entirely absent is any evidence of specific student protests, upheaval, or unwillingness to abide by university policies. But "in the context of the college classroom," students have an "interest in hearing even contrarian views." Meriwether v. Hartop (6th Cir. 2021); see also Blum v. Schlegel (2d Cir. 1994) (explaining that "the efficient provision of services" by a university "actually depends, to a degree, on the dissemination in public fora of controversial speech"). NJIT's theory that student dissent rose to the level of disruption is simply speculative.

Second, the cited disputes among Jorjani and his colleagues are not disruption. NJIT cites the pointed letters denouncing Jorjani published by faculty in the pages of the student newspaper, but that is precisely the sort of reasoned debate that distinguishes speech from distraction. And there is no allegation these editorials, or Jorjani's belief they were defamatory and warranted suit, interfered with the ability of other faculty to fulfill their responsibilities in research, teaching, or shared governance, or otherwise thwarted the university's efforts to educate its students. So although challenges to "employee harmony" might pose disruption when disagreements disturb "close working relationships," that concern is irrelevant inside the university where professors serve the needs of their students, not fellow academics. {Bauer v. Sampson (9th Cir. 2001) ("[G]iven the nature of academic life, especially at the college level, it was not necessary that Bauer and the administration enjoy a close working relationship requiring trust and respect—indeed anyone who has spent time on college campuses knows that the vigorous exchange of ideas and resulting tension between an administration and its faculty is as much a part of college life as homecoming and final exams.").}

That leaves only NJIT's ordinary obligation to field calls and emails, routine administrative tasks that, conceivably, might become so overwhelming in number or nature as to disrupt. But not here. The record reveals that throughout this occurrence there were "[p]ossibly" fifty emails received about Jorjani. Calls were so few that NJIT's witness was "not sure what the number is," and only knew "by reading some emails that so-and-so called the mother, and so-and-so called, former student called, things of that nature." All a most minor uptick in communications, if at all, and one that required no additional staffing to support the single administrator who handled these inquiries.

While NJIT raises an "interest in providing a non-denigrating environment," and appeals to the notion that Jorjani's views could, theoretically, undermine the pedagogical relationship between a teacher and student, it has not pointed to anything in the record that indicates its determination was based on competence or qualifications. In essence, NJIT posits that because Jorjani offered views it disliked, the First Amendment should not apply, and it is entitled to summary judgment. We cannot agree, lest we permit "universities to discipline professors, students, and staff any time their speech might cause offense." {And this case does not implicate a university's "discretionary academic determinations" that entail the "review of [ ] intellectual work product" or "the qualifications of faculty members for promotion and tenure."}

Back in the South Dakota case, James D. Leach represents Hook.

The post Court Blocks Impending Firing of South Dakota Art Professor for Vulgar Tweet Calling Charlie Kirk a "Hate Spreading Nazi" appeared first on Reason.com.

[Eugene Volokh] Should "Plaintiff … Have to Travel from Mauritania to Louisville … for His Deposition"?

From Sidya v. Kmache, decided today by Magistrate Judge Regina Edwards (W.D. Ky.) (see this recent news story for more on Sidya and this Facebook page that appears to be Kmache's, and which reports 284K followers):

Plaintiff Yacoub Ould Sidya resides in Mauritania in Western Africa. But he initiated this defamation lawsuit in the Western District of Kentucky. The question before the Court is whether Plaintiff should have to travel from Mauritania to Louisville, Kentucky for his deposition….

On March 17, 2024, Defendant Sidi Mohamed Kmache, a social media influencer from Mauritania that resides in Louisville, Kentucky, published a Facebook post ("the Post") about Plaintiff Yacoub Ould Sidya. The Post stated that police had surrounded Plaintiff's home, that Plaintiff owns an insurance company and "a plane to transport gold," and that the police entered his home to search it. According to Plaintiff, the information in the post is false.

The aftershock of the Post, Plaintiff explains, resulted in his house and phone being flooded with concerned visitors and callers, his sister getting into a car accident on her way to his house, his brother "also narrowly escaping bodily injury," and his son being bullied at school. Per Plaintiff, Defendant perpetuates this type of illegal scheme against other Mauritanians, by manufacturing defamatory fiction, posting about it on Facebook, and then offering to remove the content for a ransom payment.

One month after the Post, Plaintiff initiated this action in the Western District of Kentucky, alleging defamation and intentional infliction of emotional distress against Defendant….

A plaintiff is generally required to travel to the district where his lawsuit is pending for his deposition. The basis for this rule is practical —in most cases, the plaintiff "has selected the forum."

A plaintiff wishing to deviate from this general policy may bring a motion for protective order, pursuant to Federal Rule of Civil Procedure 26(c), demonstrating good cause for protection against "annoyance, embarrassment, oppression, or undue burden or expense[.]" To establish good cause, the moving party must demonstrate "specific prejudice or harm will result from the absence of a protective order." As the Eastern District of Michigan recently explained:

The fact that depositions by remote means may be an economical and appropriate tool in some instances, at least where the parties agree on the means, or where extraordinary circumstances such as the medical infirmity of a deponent make an in-person examination unreasonably risky, does not mean that good cause has been shown to compel the taking of depositions by remote means across the board for all plaintiffs, based merely on the routine convenience and expense that is incident to participation in litigation by any party who chooses to file suit in a forum distant from their residence.

… Plaintiff offers four reasons for why he should receive protection from appearing in the United States for his deposition. He first alleges he is physically not permitted to enter the United States based on his citizenship and immigration concerns. Second, Plaintiff claims he is afraid of flying. Plaintiff thirdly asserts the travel costs would be unreasonable. And lastly, Plaintiff asserts Defendant will face no prejudice from a remote deposition.

Plaintiff's Citizenship

First, Plaintiff alleges that he is not a U.S. citizen, that his green card expired in July 2025, and that he has no visa or paperwork allowing his entry to the United States. Nor can he apply for a travel visa, Plaintiff claims, because "there is a long waiting list for appointments" and even if approved, "there is a long processing time for tourist visas." As set forth in Mr. Raft's Declaration [Raft is defendant's former immigration lawyer -EV], Plaintiff believes he has abandoned his legal permanent resident ("LPR") status in the United States due to his extensive absence. He claims to have not entered the United States since sometime in 2020 or longer. Mr. Raft opines that Plaintiff would face a substantial risk of potential detention upon his arrival in the United States and placement in removal proceedings were he to attempt entry based on his likely abandoned LPR status. Plaintiff relies on another case from this District, Murillo v. Dillard, to argue that a lack of immigration paperwork is the type of difficulty or expense warranting protection from conducting a deposition in the United States.

Defendant responds that Mr. Raft's Declaration, while informative, does not accurately portray Plaintiff's immigration status because he is only offering opinion on what could happen if Plaintiff returned to the United States using his LPR status. The Declaration, Defendant argues, is silent on whether Plaintiff could apply for a returning resident visa or travel visa even if his LPR

 

status is abandoned. Defendant also emphasizes that Plaintiff has strong ties to the United States, specifically owning a home in Northern Kentucky and having affiliations with organizations there, as well as strong business ties in other countries, including Niger, Senegal, Mali, and the United Arab Emirates. Plaintiff's connections and financial circumstances, Defendant explains, set him apart from other foreign nationals seeking to enter the United States. To conclude, Defendant states Plaintiff has provided speculation but no concrete evidence on his ability to travel to the United States.

A plaintiff's ability to secure a visa for travel does not necessarily constitute good cause for avoiding an in-person deposition. For instance, in Charr v. King, the Southern District of Florida found that the plaintiff should have "foreseen and appropriately managed the visa requirements in light of him initiating this litigation …." Likewise, in Azizpur v. AAA Life Insurance Company, the Central District of California found plaintiff had not established good cause to prevent travel from Iran to the United States for his deposition where the plaintiff did not "show any diligence in trying to enter the United States." Like the plaintiffs in Charr and Azizpur, Plaintiff has not attempted to obtain a visa to enter the United States for purposes of his deposition.

Murillo v. Dillard, relied upon by Plaintiff, is distinguishable. In that case, the court ordered defense counsel to travel to Mexico to take the depositions of the plaintiffs, a group of twenty-four impoverished migrant farm workers with expired H-2A visas. Based on the plaintiffs' declarations, the court determined their current immigration status made travel to the United States for the depositions "potentially impossible."

Plaintiff here is a single individual, with no financial hardship, that has only speculated as to his current citizenship. Mr. Raft's Declaration states what could happen if Plaintiff attempted to reenter the United States using his possibly abandoned LPR status. But Plaintiff has not shown, by Mr. Raft's Declaration or otherwise, that he is ineligible to apply for a travel visa or to enter the United States. Troubling, also, is Plaintiff's representation during the hearing that he plans to travel to the United States for trial in the case. If his LPR status is abandoned, as he alleges, he will have to obtain a travel visa that he currently claims would take many months and would be an undue burden. Since filing this action nineteen months ago, Plaintiff has known that he would need to physically appear in the United States for trial and for his deposition yet made no attempts to secure the required citizenship and travel documents. Without demonstrating diligent efforts, the Court cannot find good cause for protection on these grounds.

[B.] Plaintiff's Fear of Flying

Plaintiff alleges a "documented fear of flying" due to his witnessing two colleagues being badly burned in an airplane crash in 2012. Plaintiff accuses Defendant of exploiting this fear and inflicting further emotional distress by requiring Plaintiff to take flights that could total "well over 24 hours." To challenge Plaintiff's purported fear of flying, Defendant produces an article from the African Leadership Magazine, reporting that Plaintiff was flying to London in June 2025 for a summit.

Defendant's production of the article from the African Leadership Magazine calls into question the extent and effect Plaintiff's purported fear of flying has on his ability to travel internationally. As do Defendant's unrebutted allegations that Plaintiff owns a private plane. Additionally, Plaintiff does not provide, and the Court has not independently located, any case law where a plaintiff's fear of flying has qualified as good cause for protecting Plaintiff from traveling for his deposition. {On the contrary, at least one court has recognized that a party's fear of flying should not "require someone else to take to the skies[.]"}

[C.] Travel Costs

Based on internet searches, a roundtrip ticket from Mauritania to Louisville would cost nearly $5,000.00, which Plaintiff characterizes as "significant and unnecessary." Plaintiff believes being forced to shoulder such travel expenses amplifies the damage inflicted by Defendant's publication of false statements on Facebook. Defendant responds that Plaintiff is a multi- millionaire, perhaps billionaire, who owns multiple international businesses, including an airline. And Defendant argues that even if Plaintiff cannot use his private aircraft to travel for his deposition, commercial flights are available from Mauritania to Louisville for as low as $1,300.00.

A plaintiff attempting to avoid an in-person deposition due to financial hardship must submit pertinent information about his financial circumstances. Whether flying from Mauritania to Louisville is expensive and whether Plaintiff can afford such an expense are separate inquiries. Plaintiff must prove he is unable to afford the expense of the travel.

But Plaintiff only vaguely claims the travel costs are unreasonable. He does not state he cannot afford such an expense. And Plaintiff did not rebut Defendant's allegations from either the pre-conference memorandum or during the hearing regarding his substantial wealth. Because Plaintiff submits no information regarding his financial circumstances to prove hardship, the expense of travel does not constitute good cause for protection from an in-person deposition.

[D.] Prejudice to Defendant

Finally, Plaintiff argues that conducting his deposition remotely would not prejudice Defendant. Plaintiff emphasizes the issues in the case are straightforward, the deposition would be limited in scope, and Defendant has not served any discovery in this case thus far. Defendant, on the other hand, maintains prejudice a remote deposition is prejudicial because nuances in the Plaintiff's behavior and demeanor would not translate over virtual platforms.

Other courts have recognized that remote depositions preclude "assessment of a deponent's demeanor, affect, non-verbal responses, and facial expressions." The credibility of the plaintiff, as the initiating party to the litigation, is "presumably critical," heightening the need for accurate assessment. Beyond credibility issues, a remote deposition can present additional logistical challenges, including adapting to time differences, ensuring the deponent's appropriate behavior, and translation issues.

Even though the issues in this case are relatively straightforward, Plaintiff will be providing testimony critical to the emotional distress and reputational harm he endured from the Post. This could result in emotionally charged testimony, heightening the need for Defendant to assess Plaintiff's credibility in person. The Court, therefore, finds the prejudice Defendant could suffer from Plaintiff's remote deposition counsels against entry of a protective order.

Rania Abdulla Attum (Attum Law Office) represents defendant.

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[Irina Manta] "Public Health Policy as Public Choice Failure" in Print

[We trace how things went South]

My coauthors Cassandra Robertson, Zoe Robinson, and I have published a symposium piece entitled "Public Health Policy as Public Choice Failure" in the Houston Journal of Health Law & Policy, in which we use a public choice lens to examine the United States' often-unfortunate public health journey. Here is the abstract:

The COVID-19 pandemic has wrought a devastating toll, causing over a million deaths in the United States along with widespread disability and economic disruption. Yet the magnitude of these costs was not inevitable—it was shaped by the policy choices made in response to the crisis. This Article argues that the U.S. pandemic response suffered from public choice dynamics that systematically skewed policymaking away from the public interest. Examining three key policy areas—vaccine rollout, mask mandates, and ventilation standards—the Article demonstrates how misaligned political incentives led officials to prioritize short-term appeasement of a pandemic-weary public over science-based strategies that would maximize long-term welfare. In each domain, political actors faced strong incentives to downplay risks, overpromise solutions, and delay difficult decisions, resulting in a pandemic response that was often too little, too late, and too beholden to partisan interests. The Article concludes that reckoning honestly with these failures is a crucial first step toward reforming our public health institutions and ensure a more effective response to the next crisis. It offers recommendations for rebuilding public trust, depoliticizing public health communication, and institutionalizing science-based policymaking. More broadly, the Article underscores the urgent need to realign political incentives with the public interest in the prevention of and response to public health emergencies.

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[Eugene Volokh] Over $24K in Sanctions for Alleged AI Hallucinations in Case Against FIFA

For more on the underlying errors in the plaintiffs' brief, see here. An excerpt from yesterday's sanctions order, in Puerto Rico Soccer League NFP, Corp. v. Federacion Puertorriquena de Futbol:

Plaintiffs' motions included at least fifty-five defective citations, requiring hours of work on the Court's end to check the accuracy of each citation. Plaintiffs' counsel never offered a satisfactory explanation for why their citations in multiple motions were so severely flawed. Plaintiffs denied using generative artificial intelligence. But the sheer number of inaccurate or nonexistent citations suggests otherwise. And in any event, the violations of Fed. R. Civ. P. 11 and applicable ethical rules occurred regardless of whether they were caused by misuse of generative artificial intelligence or other means. This behavior stands in contrast to several of the cases [that imposed much lower sanctions], where various attorneys facing sanctions offered an explanation as to how they erred.

Defendants actually asked for $60K in compensation for the attorney fees and research costs expended to deal with the incorrect citations, but the court reduced that by 60%:

The Court is aware that the errors committed by Plaintiffs' counsel received national attention, and that given both attorneys work for small firms and describe themselves as solo practitioners, the initial lodestar amount would prove a heavy financial burden. Furthermore, it is well-known that "an appropriate sanction should be no more severe than necessary to assure the deterrent objective" of Fed. R. Civ. P. 11…. [T]he Court is aware of no cases where a sanction approaching sixty thousand dollars for the misuse of artificial intelligence has been applied.

Salvador J. Antonetti-Stutts and Aníbal A. Román Medina (O'Neill & Borges LLC) and John J. Kuster, Jon Muenz, and Amanda M. Blau (Sidley & Austin LLP) represented defendants on the sanctions motion.

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[Eugene Volokh] Addiction to Constitutionally Protected Activity: Speech, Press, and Religion

I have a forthcoming article with this title in an Emory Law Journal symposium issue, so I thought I'd serialize it here; there's plenty of time to improve it, so I'd love to hear people's feedback.

The background is, of course, the calls to regulate social media platforms and video games on the theory that they are unduly addictive. You'll see I'm skeptical about that. I start by arguing that similar arguments could be made as to religious practice, but that we should reject such regulations of "addictive" religious practice as violating religious freedom. I then argue that, analogously, we should reject regulations of "addictive" communicative products as violating the Free Speech and Free Press Clauses.

[* * *]

Introduction

Most behavior that is potentially addictive to some people is also pleasant and largely harmless to others. Gambling is a classic example: It seriously harms some people, but provides fairly inexpensive pleasure to others. Indeed, this is true even for some physiologically addictive substances, such as alcohol and likely some other drugs. There are many alcoholics, but many more nonaddicted social drinkers who genuinely enjoy moderate drinking.

Of course, for many behaviors, this effect just requires legislatures to ask a familiar regulatory tradeoff question: When should the freedom of some (even of many) be restricted to prevent harm to others? Different legislatures may answer this question differently as to different activities.

But when the behavior is also constitutionally protected, the problem becomes more difficult: Restricting the constitutional rights of some in order to prevent harms—especially self-inflicted harms—to others generally requires much more justification. This short essay will delve deeper into this question, focusing especially on free exercise rights and free speech/free press rights.

I. Religion

A. Adults

Religious practices as addictive

Many of the arguments that label certain interactions with speech products as "addiction" would apply much the same way to religious practices (whether or not the arguments' supporters would seek to so apply them). Yet I take it—and I will defend this in more detail below—that few of us would accept such arguments as a basis for restricting such religious behavior.

a. Harm

To begin with, religious practice, like supposedly addictive speech, can lead to economic loss and physical and mental harm. Some people may join religious groups that pressure them to donate substantial sums—perhaps as recurring 10% tithes, or as occasional larger contributions—with the pressure coming from the threat of social ostracism or eternal damnation, or from the promise of community or eternal salvation. That is presumably more serious pressure for most people than the pressure to make more in-game purchases.

Some people may adopt religious beliefs that are bad for their physical health, for instance if the beliefs counsel in favor of faith healing rather than modern medical treatment. Some people may adopt religious beliefs that are bad for their mental health, for instance if the beliefs make them feel guilty because of their sexual preferences or desires.

Some may be drawn to practices that damage their relationships with family members or cause them to "neglecting personal and family commitments." Certain religious practices expressly call on people to set aside "family commitments," for instance by joining monastic orders or by choosing to break off relationship with family members who are seen as sinful or unbelieving.

Some religious people may take life paths that are hard for them to leave, for instance if a woman joins a religious community that frowns on women's educational or professional advancement, and therefore faces a much reduced set of life options if she were to leave the community. Likewise, if they choose to have children—which the religious group may pressure them into doing, or into doing earlier or more often that they might like—they may find themselves locked in to the community, for fear of losing their relationship with the children if they lose their relationship with the community. And some may indeed exhibit psychological withdrawal symptoms, such as "experiencing distress when unable to engage in religious activities."

b. Nonrational decisions and emotional vulnerability

What's more, people may join religions not because of rational choice—much religious belief, after all, stems from nonrational causes—but in large part because of techniques used by religious leaders. Those techniques might not be the result of recent intense market research, but they have been carefully honed over centuries or millennia of institutional experience.

The techniques may appeal to people's most basic fears and hopes. The techniques may rely on social pressure to which the target is highly vulnerable, perhaps because of loneliness, sadness, physical illness, mental illness, or consciousness of impending death. Indeed, one might characterize them, borrowing a term from an article that urges regulation of addictive social media and gaming technologies, as "exploit[ing] weaknesses in human psychology."

c. Fostering intrusive urges and compulsions through techniques of reinforcement and habit formation

The religions' techniques may operate gradually, by getting people slowly lured into a community and a belief system that they may eventually find emotionally hard to leave, even if they feel some desire to leave. The techniques may thus be labeled "addictive," in the sense of being "techniques that foster persistent, intrusive urges"—here, urges to pray, to follow religious leaders' teachings, to feel guilt over perceived sin, and the like—and that "foster compulsion" to engage in various religious behavior.

The techniques might likewise be described as "contribut[ing] to behavioral addiction through 'operant conditioning' techniques such as intermittent reinforcement and variable reward." To quote an article describing addiction as to speech, "operant conditioning research has long focused on content-neutral techniques for fostering compulsion, techniques like . . . pushing repeated, daily interactions." Praying three (Judaism) or five (Islam) times a day, or saying blessings (Judaism) or grace (Christianity) before each meal would presumably qualify.

Likewise, the techniques will usually operate through positive feedback. If a "like" button on social media makes people "kind of addicted to the feedback," one might equally say that the positive reinforcement that formerly lonely people get from a new religious community would make them "kind of addicted to the feedback" as well.

Those techniques may end up especially influencing a small subgroup of people who are especially deeply committed to the religion, or especially committed to the religion's message of contribution and self-sacrifice. If "most revenue from micropayments" in video games "is highly concentrated among a small group of apparent addicts who individually spend thousands of dollars on in-app purchases," I expect one can also find that the contributions to many religious groups are highly concentrated among a small group of people who individually donate thousands of dollars—sometimes millions of dollars—to the group.

Indeed, it's striking just how applicable so many of the discussions of alleged addiction to speech are to religion. Consider, for instance, this passage

But gaming companies often have a collateral interest in addicting nonpaying players as well. First, a player who keeps playing might pay later on; a player who walks away will not. Second, many mobile games contain a social dimension that is enhanced by widespread participation. . . . Nonpaying players who participate in these activities enhance the games' allure for the whales and potentially promote the games to others.

Change a few words (gaming to religion, players to congregants, and the like), and you have something a cynic may easily say about religious institutions. Indeed, this could be seen as an accurate description of how religious institutions operate even by a noncynic who views the institutions' seeking of contributions as a laudable tool for doing good deeds.

Likewise, religions seek to form habits of religiosity, another item that is sometimes given as a hallmark of "addictive" speech products. Consider one passage about the supposedly addictive nature of certain social media platforms or video games,

"The ultimate goal of a habit-forming product," [Nir Eyal, author of Hooked: How to Build Habit Forming Products] writes, "is to solve the user's pain by creating an association so that the user identifies the company's product or service as the source of relief." The ideal is "unprompted user engagement, bringing users back repeatedly, without depending on costly advertising or aggressive messaging."

Or another: "Simple habit formation may do the job, as the user comes to rely on a phone app as a quick cure for boredom." Those skeptical about religion—or about particular religions—can equally suggest that religion promotes itself "by creating an association so that the [congregant] identifies the [religion's practices] as the source of relief" for the congregants' "pain" (such as the pain of loneliness, lack of felt meaning, or fear of death): "By its very nature, religious addiction, as with other addictions, allows the addict to escape from painful realities and/‌or feelings." Indeed, some go so far as to say that "religion is the opium of the masses."

d. Reliance on people's neutrotransmitter system

The religious leaders' practices likely also rely on people's neurotransmitter system, for instance by using—even if based on ancient experience rather than modern medical knowledge—the tendency of some religious practices to release dopamine, which is also the chemical involved in drug addiction. Religious practice has also been shown to engage the same reward circuits in the brain as drug use.

This should be unsurprising: Many of the things that most affect us emotionally involve neurotransmitters.  It may be very hard (or even impossible) to distinguish purely "mental" behavior, such as decisions about religion, from the "physical" parts of our body: The brain, after all, is itself a physical organ that operates using electrical and chemical processes.

e. The presence of "addictive" features in mainstream religions

Nor are these just the properties of small and fringe religious groups sometimes derided as "cults." The behaviors and appeals that I described above have long been practiced within some of the largest and best-established religious groups. Indeed, it may well be that the religious groups that have most thrived have thrived in part because of these very sorts of practices.

[Tomorrow: Religious Practices as Legally and Constitutionally Protected.]

[* * *]

See, e.g., Tithing, The Church of Jesus Christ of Latter-Day Saints, https:‌‌//‌www.churchofjesuschrist.org/‌study/‌e... (last visited Sept. 10, 2025).

Or they may join groups—such as monastic orders—that promise salvation in a future life, peace in the current life, or both but require that they take a vow of poverty. This need not mean that they are expected to give away all their money to the group, but they may be expected to give away all their money to family or to charitable causes, which will make it much harder for them to return to their old lives if they choose to leave the monastic life.

See, e.g., Shawn Francis Peters, "Does the Science Kill a Patient Here and There?":‌‌ Christian Science, Healing, and the Law, in When Prayer Fails:‌‌ Faith Healing, Children, and the Law 89 (online ed., 2008) (describing Christian Scientists' belief that sickness is an illusion curable through embracing Christ's teachings, and surveying cases where reliance on faith healing rather than medical care led to preventable deaths).

E.g., Religious Addiction:‌‌ Definition, Symptoms, Causes, Effects, And Treatment, Valley Spring Recovery Center (Oct. 5, 2024), https:‌‌//‌valleyspringrecovery.com/‌addiction/‌...‌.

See infra notes 39–40.

The Book of Matthew, after all, characterizes Jesus as saying, "Do not think that I have come to bring peace to the earth. I have not come to bring peace, but a sword. For I have come to set a man against his father, and a daughter against her mother, and a daughter-in-law against her mother-in-law. And a person's enemies will be those of his own household." Matthew 10:‌‌34-35. Naturally not all Christians take that seriously, but some do; and some may more generally be pushed into rifts with family members over theological disagreements that some religiously minded people may see as deeply important. See, e.g., Bryan Fischer, Jesus Came to Divide Families, AFA [American Family Ass'n] The Stand, Aug. 14, 2019 ("Quite simply, Jesus is saying that He is the dividing line in every family. Those who are unreservedly dedicated to following Him are on one side, those who reject His offer of salvation and the call to take up His cross are on the other. There is a chasm between them that can grow by the day until it becomes impossible to cross."). See also, e.g., Paul v. Watchtower Bible & Tract Soc. of New York, 819 F.2d 875, 877, 883 (9th Cir. 1987) (discussing Jehovah's Witnesses' practice of "shunning" people, including family members, who have been excommunicated, and holding that the practice is protected by the First Amendment).

See, e.g., Ginia Bellafante, In Brooklyn, Stifling Higher Learning Among Hasidic Women, N.Y. Times, Sept. 2, 2016; Susan Henking, Religion vs. Girls' Education, Religion Dispatches (July 2, 2009), https:‌‌//‌religiondispatches.org/‌religion-vs-g...‌.

See, e.g., Larissa MacFarquhar, When One Parent Leaves a Hasidic Community, What Happens to the Kids?, New Yorker, Nov. 30, 2020, https:‌‌//‌www.newyorker.com/‌magazine/‌2020/‌12... (documenting the struggles of Hasidic parents to maintain a relationship with their children after leaving their faith, including one mother isolated after her children were pressured to choose the community over her); Samantha Raphelson, When Leaving Your Religion Means Losing Your Children, NPR, June 14, 2018, https:‌‌//‌www.npr.org/‌2018/‌06/‌14/‌619997099/... (reporting on an ultra-Orthodox mother who nearly lost custody when she removed them from Hasidic life, after a lower court had enforced a religious-upbringing agreement later overturned on appeal).

Religious Addiction, supra note 4. For examples of claims of such distress, see, e.g., Muniz v. McCall, no. 23-cv-4224 (DEH) (VF), 2024 WL 3522680, at *2 (S.D.N.Y. 2024) ("Because of the denial of his orisha beads [part of his religious practice], Plaintiff has suffered emotional and psychological harm and feels spiritually disconnected from his religious practice. He has also lost weight, has had trouble sleeping, and cannot concentrate"); Ackerman v. Washington, 16 F.4th 170, 177 (6th Cir. 2021) ("Shaykin explained that when he can't eat meat and dairy as required [by Jewish law] he is 'empty of everything.'"); Complaint at ¶ 72, Pawochawog-Mequinosh v. R.I. Dep't of Corr., No. 1:‌‌24-cv-00036-WES-PAS (D.R.I. Jan. 24, 2024) ("Defendants' denial of Wolf's requests to obtain and wear an Apache headband has caused Wolf severe and daily distress, as he is unable to express his religious traditions and beliefs as he sincerely understands them.").

Kyle Langvardt, Regulating Habit-Forming Technology, 88 Fordham L. Rev. 129, 143–44 (2019).

Id. at 142.

Matthew Lawrence, Public Health Law's Digital Frontier:‌‌ Addictive Design, Section 230, and the Freedom of Speech, 4 J. Free Speech L. 299, 309 (2024).

See, e.g., Cheryl Zerbe Taylor, Religious Addiction:‌‌ Obsession with Spirituality, 50 Pastoral Psychol. 291 (2002). Cf. also Robert N. Minor, When Religion Is an Addiction (2007); Leo Booth, When God Becomes a Drug: Breaking the Chains of Religious Addiction and Abuse 2 (1991); Stephen Arterburn & Jack Felton, Toxic Faith: Understanding and Overcoming Religious Addiction (1991).

See Lawrence, supra note 12, at 301.

Id. at 303.

Id.

See, e.g., Nissan Mindel, The Three Daily Prayers, Chabad.org, https:‌//‌www.chabad.org/‌library/‌article_cdo/....

See, e.g., Azhar Goraya, Why Muslims Pray 5 Times a Day, Rev. of Religions, Feb. 26, 2020, https:‌//‌www.reviewofreligions.org/‌20026/‌why...‌.

See, e.g., Food Blessings (Brachot), Chabad.org, https:‌//‌www.chabad.org/‌library/‌article_cdo/....

See, e.g., Angelo Stagnaro, How to Develop a Daily Prayer Routine, Nat'l Catholic Reg., July 24, 2020, https:‌//‌www.ncregister.com/‌blog/‌how-to-deve... (discussing both grace and other prayers).

Variable reward likewise appears to be a regular feature of religious experience: Much religious practice is regularized, such as daily prayer, weekly attendance at communal services, and the like. But religious experience varies, with religious believers reporting occasional experiences of especially intense connection with the divine or transcendent, or with one's religious community. Cf., e.g., How You Can Use Behavioral Design to Create Any Habit You Want with Nir Eyal, Science of Success, Oct. 26, 2017, https://www.successpodcast.com/show-n... ("My book is mostly around technology products, but the same exact rules by the way apply to all sorts of things. If you think about spectator sports, if you think about what makes books and movies interesting, why we watch the nightly news, why we subscribe to a particular religion. They all have hooks embedded in them. They all have these elements of variability.").

Langvardt, supra note 10, at 142 (quoting Leah Pearlman, inventor of the "Like" button).

Id. at 140.

Id. at 142.

Id.

Id. at 143.

Taylor, supra note 13, at 292.

Karl Marx, Introduction to A Contribution to the Critique of Hegel's Philosophy of Right, quoted in Mike King, Secularism: The Hidden Origins of Disbelief 145 (2007).

See, e.g., Paul M. Butler et al., Disease-Associated Differences in Religious Cognition in Patients with Parkinson's Disease, 33 Journal of Clinical and Experimental Neuropsychology 917 (2011) (finding that Parkinson's disease patients exhibit diminished religiosity and hypothesizing that the link is due to dopamine loss); Ed Ergenzinger, Faith, God, and Dopamine, WebMD (May 30, 2025), https:‌‌//‌www.webmd.com/‌bipolar-disorder/‌2025... (providing a first-person account linking religious delusions during bipolar manic episodes to dopamine production).

See, e.g., How an Addicted Brain Works, Yale Medicine (May 25, 2022), https:‌‌//‌www.yalemedicine.org/‌news/‌how-an-ad... (explaining how addictive substances operate by flooding the brain's reward pathway with dopamine).

See, e.g., Michael A. Ferguson et al., Reward, Salience, and Attentional Networks Are Activated by Religious Experience in Devout Mormons, 13 Social Neuroscience 104 (2018) (reporting fMRI study of devout Mormons showing religious experience is correlated with activation of the nucleus accumbens and ventromedial prefrontal cortex, reward regions also implicated in drug use); Patrick McNamara, The Motivational Origins of Religious Practices, 37 Zygon 143 (2002) (arguing that religious practice is linked to activation of the frontal lobes, also associated with addiction).

See, e.g., Fushun Wang et al., Editorial:‌‌ Neurotransmitters and Emotions, 11 Frontiers in Psychol. 21 (2020).

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[Josh Blackman] Today in Supreme Court History: September 24, 1755

9/24/1755: Chief Justice John Marshall's birthday.

Chief Justice John Marshall

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[Eugene Volokh] Wednesday Open Thread

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[Eugene Volokh] Avoid Super-Embarrassing Redaction Failures

[I just saw one in a recent filing from an AmLaw top 20 law firm (by gross revenue rankings).]

[I posted a version of this post in 2020 and 2024, but I've seen the problem enough since to think it was worth mentioning again.]

I have often run across documents written by lawyers that looked redacted—but all the supposedly secret information in them could be extracted with literally three keystrokes (ctrl-A, ctrl-C, ctrl-V). One was a court filing that was filed pursuant to a court order authorizing the redaction; but the material so carefully marked secret proved not to be secret at all.

Another carefully tried to hide the real name of a litigant whom the lawyer was trying to keep pseudonymous; but the name was one copy-and-paste away from being visible. What's more, when the documents were posted online in searchable spaces, search engines indexed the supposedly hidden material, so searching for the real name would find the document in which the lawyer had been trying to redact the name.

For at least one of the documents, I know what improper redaction mechanism was used: The lawyer used Google Docs to highlight passages using black highlighter, and then saved the document as a PDF. That looked blacked out on the screen; but the underlying text still remained in the PDF document—as far as the software was concerned, the text wasn't removed but was just set in a different color. (Something similar would happen with Microsoft Word.)

By clicking ctrl-A in PDF, I selected the whole document. (You can also just select the passage that contains the redactions.) By clicking ctrl-C, I copied the selected text to the clipboard. And then by clicking ctrl-V in another app, I pasted it with all the formatting, including the highlighting, removed. (In some situations, it takes a ctrl-shift-V.) The text was then completely visible. Commenter anorlunda on an earlier post explained the problem well:

Users are trained WYSIWYG. What you see is what you get. That's brilliant marketing, but when you make black text on a black background, what you see is nothing, but what you get is something else. So redaction contradicts our training.

To the best of my knowledge, Adobe Acrobat Pro redaction actually deletes the underlying text, if you mark the text for redaction and then apply the redactions. I'm sure there is other software available to do this, including free software. Just make sure that whatever you do, the redaction is actually complete.

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[Eugene Volokh] On Free Speech, "I Choose Low Expectations"

From an excellent N.Y. Times op-ed by Greg Lukianoff (FIRE):

If you're a free-speech lawyer, you face a choice: Either expect to be disappointed by people of all political stripes — or go crazy. I choose low expectations.

Again and again, political actors preach the importance of free speech, only to reach for the censor's muzzle when it helps their side. If, like me, you defend free speech as a principle rather than invoke it opportunistically, you get distressingly accustomed to seeing the same people take opposite positions on an issue, sometimes within the space of just a few months….

And he closes (after offering a good deal of detailed evidence),

I don't like having to make a case for human rights such as freedom of speech by appealing to self-interest; these are supposed to be rights whose importance transcends one's personal needs. But for political partisans, it's often the only argument that cuts through. So here's my practical warning: The weapon that you reach for today will be used against you tomorrow…. [T]he point of the principle of free speech is that how we respond to ideas we don't like is ultimately not about our opponents' rights — it's about ours.

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