Eugene Volokh's Blog, page 79

[Keith E. Whittington] Academic Freedom Podcast on the University Endowment Tax

[An explainer from Brian Galle]

A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.

This episode features a conversation with Brian Galle, the Agnes Williams Sesquicentennial Professor of Tax Policy at Georgetown University Law Center, an expert on taxation and nonprofits. Galle recently served as a senior fellow in the division of corporation finance at the Securities and Exchange Commission.

He joins us to talk about the proposed tax on university endowments now making its way through Congress. The Republican House Ways & Means Committee issued a press release proclaiming that their bill "holds woke, elite universities that operate like major corporations . . . accountable." The House bill would impose dramatic new taxes on universities, hitting a number of wealthy universities particularly hard.

What is the endowment tax and what is its significance for the future of higher education? The new episode can be found here.

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[Jonathan H. Adler] New Mexico Appeals Court Dismisses Suit Seeking to Compel Greater Environmental Regulation under State Constitution

[The appeals court concludes the lawsuit failed to present a claim upon which relief can be granted under state law. ]

As legislative efforts to limit fossil fuel consumption falter, environmental activists have turned to the courts with increasing frequency and ever-more-expansive legal theories.  Some of this litigation relies upon state tort law. Other suits rely upon more innovative arguments.

Several groups have pressed constitutional arguments that the failure to control various forms of pollution violate federal or state constitutional rights. Such arguments have gone nowhere in federal courts (and with good reason), but some have succeeded at the state level. Most notably, the Montana Supreme Court concluded that state citizens have a judicially enforceable right to environmental protection that constrains state-level environmental policies.

In 2023, a group of environmental activists represented by the Center for Biological Diversity filed suit in New Mexico arguing that the state constitution requires greater regulation of the oil and gas industry within the state and the suspension of new oil and gas well permits until the state complied with its constitutional obligations. The suit relied upon a state constitutional provision which provides:

The protection of the state's beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people

Last year, in Atencio v. New Mexico, a trial court denied the state's motion to dismiss the suit, prompting an appeal.

Last week, a New Mexico appeals court granted the state's motion to dismiss on the grounds that the plaintiffs failed to state a claim upon which relief may be granted under state law.

The appeals court summarized its decision:

This case presents novel questions of state law regarding the justiciability of claims alleging failures of the State, its legislative and executive branches of government, and several of its administrative entities and officers to adequately control pollution caused during the extraction and production of oil and natural gas. Plaintiffs, who are various advocacy organizations and individual New Mexicans, including several Indigenous people, filed suit against various executive agencies and officials, including Governor Michelle Lujan Grisham, the State of New Mexico itself, and the Legislature (all Defendants collectively referred to hereinafter as Defendants).1 Plaintiffs seek various forms of declaratory and injunctive relief that, in general terms, call for the judiciary to declare that the current statutory and regulatory scheme controlling pollution from oil and natural gas fails to protect the environment under Article XX, Section 21 of the New Mexico Constitution (the Pollution Control Clause or PCC) and enjoin Defendants from permitting further oil and gas extraction until sufficient environmental protections are established. Plaintiffs further claim, via the New Mexico Civil Rights Act (NMCRA), NMSA 1978, §§ 41-4A-1 to -13 (2021), and the Declaratory Judgment Act (DJA), NMSA 1978, §§ 44-6-1 to -15 (1975), that the inadequacy of the current system regulating oil and gas pollution violates their constitutional rights to due process and equal protection of law under New Mexico's Bill of Rights. See N.M. Const. art. II, § 18. Defendants variously moved for dismissal of Plaintiffs' complaint or judgment on the pleadings in their favor. The district court substantially denied Defendants' motions, concluding that Plaintiffs set forth claims upon which relief can be granted. Defendants sought interlocutory appeal, which we granted. We conclude Plaintiffs have presented no claim upon which relief can be granted and reverse.

The plaintiffs have pledged to appeal this decision.

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[Jonathan H. Adler] Constitutional Limits on Environmental Law -- Call for Papers

[The Pacific Legal Foundation and Catholic University Law Review are co-sponsoring a symposium on environmental law's constitutional constraints;]

The Pacific Legal Foundation and Catholic University Law Review have posted a call for papers for a symposium on "Searching for Constitutional Limits on Environmental and Natural Resources Law." Here is the write-up:

Even in its most flattering light, the modern administrative state coexists uneasily with the core constitutional principle that the federal government possesses only limited enumerated powers, while the States and the people retain the remainder. "The Framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social, and political activities," as famously observed by Chief Justice Roberts.

Nowhere is our contemporary regulatory apparatus more pervasive than in the realm of environmental and natural resources policy. Several prominent statutes—including the Clean Water Act and the Endangered Species Act—routinely reach intra-state and non-commercial activity lacking any apparent nexus with interstate commerce. The federal government, moreover, exercises absolute power over 30% of all land, including 46% of the contiguous eleven western States and 61% of Alaska.

At some point, the growing tension between the Framers' design and modern reality must breach the Constitution's boundaries.

Accordingly, they are seeking "papers that explore the limits of Congress's regulatory authority over environmental and natural resources policy."

Papers will be presented at a symposium in Spring 2026 and published in the Catholic University Law Review.  Full details are here.

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[Eugene Volokh] New Orleans Mayor Wasn't Entitled to Restraining Order Against Woman Who Took Photos of Her in a Public Place

[A temporary order had been issued, but the trial court refused to extend it into a permanent order, and awarded $15K in attorney fees; an appellate court has just upheld the trial court's final decision, and added $8K for appellate attorney fees.]

From Cantrell v. Breaud, decided Monday by Louisiana Court of Appeal Judge Daniel L. Dysart, joined by Judge Karen K. Herman:

On the afternoon of Sunday, April 7, 2024, from the balcony of her residence at the Upper Pontalba Apartments, Ms. Breaud took photographs of Mayor Latoya Cantrell and NOPD Officer Jeffrey Vappie, a member of the mayor's security detail, while the two were seated at a table on the Chartres Street side balcony of the Tableau Restaurant, located in the French Quarter.

By way of background, Nola.com (John Simerman), reporting on the case, stated that, "the snapshots that roiled New Orleans, revealing Mayor LaToya Cantrell enjoying drinks on a French Quarter balcony with her alleged police officer paramour, Jeffrey Vappie." Vappie is also being prosecuted for alleged fraudulent timecard submission and other false statements related to the alleged affair.

On May 9, 2024, Mayor Cantrell filed an official police report setting out the alleged criminal actions of Ms. Breaud of the taking the photos, which took place on April 7, 2024. On May 10, 2024, Mayor Cantrell filed a "Petition for Protection From Stalking or Sexual Assault" (hereinafter referred to as the "Restraining Order") … against Ms. Breaud …. In summary, the petition for the Restraining Order set out that Ms. Breaud had followed her, harassed her and was an uninvited presence.

In her own handwriting, Mayor Cantrell set forth that the "[a]ctions of the defendant have placed me and my family in greater risk of being harmed, jeopardizing my safety especially at places I frequent." She further provided that "[T]he defendant aggressively photographed and harassed me while I was having lunch on a restaurant balcony." The trial court granted the petition and on May 10, 2025, a temporary restraining order/order of protection ("TRO") was issued and a … hearing was set for May 20, 2024, to determine whether the temporary restraining order should be continued.

Breaud moved to strike the petition under the Louisiana anti-SLAPP statute (Code of Civil Procedure article 971), which is designed to allow prompt dismissal of legally unfounded claims that were based on protected First Amendment activity (and to allow a prevailing defendant to get her attorney fees paid by the plaintiff). The court granted the motion to strike, and "awarded Ms. Breaud attorney's fees and costs in the amount of $15,393.52." On appeal, the panel majority affirmed:

[I]t appears that Mayor Cantrell's action against Ms. Breaud was clearly designed to suppress, restrain and prohibit her rights provided under the United States and Louisiana Constitutions, including the exercise of taking photos of a public figure in a public place. Further, it was unlikely that Mayor Cantrell's petition for protection against Ms. Breaud would be successful. Accordingly, the trial court properly struck Mayor Cantrell's petition from the record….

Mayor Cantrell … argues that the actions sought to be enjoined are for non-verbal, non-speech stalking and photography; that she never sought to enjoin Ms. Bread's exercise of free speech; that CCP article 971 only contemplates an oral or written speech element, and that the activities complained of by Ms. Breaud are not afforded the protections set forth in 971.

We disagree and find that Mayor Cantrell's interpretation of free speech as contemplated by CCP article 971 to be unduly narrow…. The courts have … recognized the public's right to record matters of public interest, especially in public forums…. In Glik v. Cunniffe (1st Cir. 2011), the First Circuit held that the First Amendment protects the right to record public officials in public spaces. In Fields v. City of Philadelphia (3d Cir. 2017), the Third Circuit reaffirmed that the act of taking photographs or videos in public, particularly of public officials, is protected by the First Amendment.

Here, Ms. Breaud, while standing on her own balcony, took photographs of Mayor Cantrell and her security officer as they were seated at a table on the balcony of a restaurant just across from her residence. Clearly, Ms. Breaud was within her constitutionally protected rights while observing and photographing this openly public activity. Ms. Breaud's activities were plainly and fundamentally protected by the First Amendment. Accordingly, we find no error in the trial court's holding that Ms. Breaud's activities constituted speech or free speech as contemplated by La. C.C.P. art. 971….

Judge Joy Cossich Lobrano dissented, concluding that the anti-SLAPP statute shouldn't be applied to stalking petitions:

Although both anti-SLAPP protections and protective order statutes are designed to prevent abuse of the legal process, Louisiana's protective order framework, particularly in cases involving stalking, operates under a distinct, expedited set of procedures that provides additional safeguards against retaliatory or frivolous claims. See La. R.S. 46:2135(A)–(B). La. C.C.P. art. 3608 allows a defendant to recover damages and attorney's fees for the wrongful issuance of a temporary restraining order or preliminary injunction. If the allegations in a protective order petition are knowingly false, the petitioner may face serious criminal penalties. The protective order petition form itself includes an acknowledgment warning petitioners of these consequences. Protective order provisions render the procedural shortcut and attorney fee provisions of Article 971 unnecessary and inappropriate in this context, particularly because the petition alleges conduct that may constitute a crime. Courts should rely on these direct statutory remedies rather than extend Article 971 beyond its intended function to dismiss serious allegations before a factual record is developed.

And she also argued that Mayor Cantrell had in any event adequately alleged legally actionable stalking:

Mayor Cantrell's verified petition alleges precisely the type of conduct contemplated by the stalking statute, including the creation and dissemination of over 800 hours of video, photographing and filming at locations she frequents, and behavior that she alleges caused emotional distress and exposed her and her family to public risk. These are not conclusory allegations, nor are they grounded in the suppression of public discourse. If proven, they may warrant both civil protective relief and criminal liability. To permit dismissal of such claims under Article 971 before discovery, without testimony, and based solely on affidavits extends the anti-SLAPP statute beyond its intended procedural and constitutional bounds.

{While Breaud's affidavit denies most of the conduct alleged by Mayor Cantrell, asserting no following, no communication, and only two photographs taken from her own balcony, those denials squarely contradict the Mayor's sworn petition. The verified petition alleges a sustained pattern of fear-inducing conduct. This conflict in sworn accounts raises genuine factual disputes and credibility determinations that cannot be resolved through affidavits alone. By granting the motion to strike without an evidentiary hearing, the district court and now the majority implicitly accept Breaud's version of events as true and disregard the Mayor's verified allegations. This inference, made without discovery or testimony, exceeds the procedural scope of Article 971. Moreover, even assuming Breaud's factual denials are true, she does not rebut the effect of her actions, that is the fear, intimidation, and emotional distress alleged by Mayor Cantrell based on an objective standard, which is central to the legal definition of stalking and remains legally unaddressed.} …

Moreover, the majority's suggestion that Mayor Cantrell's presence in a public setting negates her claim fundamentally misapprehends the law. La. R.S. 14:40.2 explicitly recognizes that stalking often occurs in public. Repeated, unwanted, and fear-inducing presence even on a public sidewalk, in a restaurant, or outside a home can satisfy the elements of the offense. Public officials do not waive their right to safety and dignity by appearing in public. The proper inquiry is not where the conduct occurred, but whether it occurred and was it repeated, targeted, and would cause a reasonable person fear or distress. That fact-sensitive determination should not be made on a motion to strike.

I tried to dig more into the dissent's noting that "Mayor Cantrell's verified petition alleges precisely the type of conduct contemplated by the stalking statute, including the creation and dissemination of over 800 hours of video," which the majority didn't respond to. Apparently Judge Dysart expressed some doubt about it at oral argument; from NOLA.com (John Simerman):

On Wednesday, Dysart homed in one claim that Cantrell made in her petition, alleging that Breaud "has been the source of photographs and video (over 800 hours of video) that has been used to attack, dehumanize, weaponize my character and caused harm; risking my overall safety."

Dysart asked Castaing for clarity.

"The 800 hours of video: Is that something you can concede one way or the other?" he asked.

"We can amend that," responded Castaing, later adding, "Until we have discovery, I don't know."

And Fox 8 (Lee Zurik & Ken Daley) wrote, with regard to the "800 hours" allegation,

The Fox 8 "Outside the Office" investigation utilized hundreds of hours of video that documented time the mayor spent with Vappie inside the city-owned Upper Pontalba apartment, sometimes during the work day. But the video used in the investigation did not come from the woman. It was obtained from a public camera belonging to the French Market Corporation through a public records request.

"Some of the the information here is totally, factually incorrect," {crime watchdog} [Rafael] Goyeneche said of Cantrell's court filing. "She's alleging that the person that took the picture on April 7 filmed 800 hours of video coming and going from the Pontalba apartment. Everybody in the city of New Orleans knows that Fox 8 got that information from the French Market Corporation, in the camera that was set up right outside the mayor's (former apartment).

"That was the French Market Corporation's video camera footage that prove the comings and goings of the mayor and Officer Vappie. So, this is really factually incorrect, and really a pathetic attempt by the mayor to send a message to this person and anyone else that, 'If you do, I'm going to push back.' And she's using the legal system as a weapon….

"So this is, I think, purely retaliatory …. Because in this petition, the mayor is saying that this person, this victim, has been stalking the mayor for two years. What are the complaints that have been filed? Has Officer Vappie, who's her protector, has he written any incident reports about threats to the mayor offered by this person or anybody else?"

Justin B. Schmidt represents Breaud.

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[Eugene Volokh] Father Sues Newspaper for Not Adequately Covering Son's Basketball Games

From Lafayette v. Abrami by Vermont Superior Court (Lamoille County) Judge Benjamin Battles; the case was decided May 20, but just posted on Westlaw:

Plaintiff's pro se complaint alleges the following facts. Plaintiff is the parent of a Vermont high-school basketball player and a "lifelong student of the game." Plaintiff's son, who plays for a school outside of Chittenden County [where Burlington is located], is "one of Vermont's top-performing high school basketball players."

The Burlington Free Press is Vermont's largest newspaper. In 2018, it created and marketed Vermont Varsity Insider as a platform to cover high school sports throughout Vermont…. Despite its claims of statewide coverage, Vermont Varsity Insider focuses on Chittenden County schools, many of which have advertising or other commercial relationships with defendants. While scores from other schools are reported when available, detailed analyses of games or individual players are not.

Although plaintiff's son had multiple 30-point games during the 2024-2025 season, his performances were not reported in Vermont Varsity Insider, despite plaintiff's repeated complaints. This lack of coverage has hurt plaintiff's son's college prospects and caused plaintiff anxiety and stress, leading to uncontrollable vomiting, severe gastrointestinal distress, and panic attacks requiring benzodiazepine treatment. The complaint seeks compensatory and punitive damages and pleads causes of action for (i) violation of the Vermont Consumer Protection Act; (ii) breach of contract; (iii) negligent infliction of emotional distress; and (iv) unjust enrichment….

No dice, the court said, unsurprisingly (applying the Vermont Constitution's free speech provision, but borrowing liberally from First Amendment precedents):

Constitutional protections for speech and press have long been interpreted to protect editorial decisions concerning "[t]he choice of material to go into a newspaper." … Plaintiff's complaint expressly seeks to punish defendants for their reporting and editorial decisions. Although plaintiff casts his claims as being centered on defendants' allegedly false and misleading marketing claims of providing "statewide" or "Vermont-wide" coverage, the complaint makes clear that defendants did in fact report on games throughout Vermont, but did not do so to plaintiff's satisfaction. The gravamen of each of plaintiff's claims is that defendants engaged in "selective reporting" and failed to provide "balanced," "fair," or sufficiently "comprehensive" statewide coverage. These allegations fail to state a claim for which relief can be granted under the Vermont Constitution….

The court also awarded defendants their attorney fees, under the Vermont anti-SLAPP statute. And the court added,

Plaintiff has admitted using fictitious case citations and quotations in his filing to the court despite previously having been warned against doing so by at least one other court. At the attorney's fee hearing, plaintiff is ordered to show cause why sanctions should not be imposed.

UPDATE: Sorry, the initial version of the post had two copies of much of the text; fixed it.

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[Eugene Volokh] Large Libel Models: Small Business Sues Google, Claiming AI Overview in Searches Hallucinated Attorney General Lawsuit

The case is LTL LED LLC v. Google LLC (D. Minn.); see pp. 104 of this PDF onwards for the amended complaint. The lawsuit was filed in March in Minnesota trial court, but was just removed to federal court. The plaintiffs are the business and four of its officers, all of whom were also mentioned by name in some Google AI Overviews (assuming the exhibits attached to the Complaint are correct).

The Complaint claims that none of the sites linked to by the report actually reported that Wolf River had ever faced a Minnesota AG lawsuit, or was otherwise sued for the alleged misconduct. According to the Complaint,

Google cited numerous sources in support of its false assertions; however, none of the referenced materials in fact contained the information Google claimed they did.

The Complaint also alleges specific lost business:

On March 3, 2025, a customer … terminated his relationship with Wolf River. The customer referred to lawsuits that appear when he "Googled" Wolf River…. The total contract price was $39,680.00.

On March 4, 2025, a customer met with a sales representative of Wolf River and refused to do business with Wolf River. This customer stated that they did research online and saw Wolf River was being sued by the Minnesota Attorney General…. The solar system proposal for this customer was for $26,400.00.

On March 5, 2025, a customer contacted a sales representative at Wolf River and expressed concerns about Wolf River being sued by the Minnesota Attorney General for deceptive business practices. The customer sent the sales representative a screenshot of one of Google's false statements stating Wolf River is currently facing a lawsuit from the Minnesota Attorney General due to allegations of deceptive sales practices.

On March 5, 2025, a customer of Wolf River, identified by contract number YKUFU-AH78H-PMNDF-K3C7V, contacted Wolf River and expressed concerns because of the publications on Google alleging Wolf River was being sued for misleading customers about cost savings, using high-pressure tactics, and tricking homeowners into signing binding contracts with hidden fees…. Despite the CEO of Wolf River reassuring this customer that the publications by Google are false, this customer chose to terminate the relationship with Wolf River because of Google….. The total contract price was $150,000.00.

On March 11, 2025, a non-profit organization informed Wolf River that they were "pulling the plug" on their business relationship because of "several lawsuits in the last year" with the "Attorney General's Office." This customer terminated a solar project with a price of $147,400.00 and a lighting project with a price of $26,644.12.

Here's one of the exhibits from the Complaint; again, recall that LTL claims the allegations here were hallucinated by Google's AI, and had never been actually made in any existing outlets.

An Exhibit from the Complaint depicting the allegedly libelous hallucination by Google's AI.

 

When I did the same Google search, I didn't see any AI Overview, but it seems likely that Google just turned off that feature for those particular searches once it learned of the lawsuit (or even just of the accusations). One interesting twist: The Complaint alleges that searches for wolf river electrical autocomplete to the phrases

"Wolf River Electric lawsuit", "Wolf River Electric lawsuit reddit", "Wolf River Electric lawsuit update Minnesota", "Wolf River Electric lawsuit update today", "Wolf River Electric lawsuit 2022", "Wolf River Electric lawsuit 2023", and "Wolf River Electric lawsuit Minnesota settlement"

and that those phrases in turn tend to lead to the hallucination-filled AI overviews. As I read the complaint, though, the allegations are that the AI overviews are libelous, not that the autocompletes themselves (even apart from the AI overviews) are libelous. Some foreign courts have considered the question of autocomplete libel, but I don't know of any American cases that have dealt with it.

For my take on how such cases should be analyzed, see my Large Libel Models? Liability for AI Output article. Note that the recent Walters v. OpenAI decision from a Georgia trial court, which rejected liability, involved rather different facts: Among other things, the LTL case involves likely private figures, evidence that some people believed the allegations, and evidence that the allegations led to provable financial loss.

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[Ilya Somin] Federal Circuit Grants Government's Motion for Stay Pending Appeal in Our Tariff Case

[It's disappointing. But the court will hear the case on the merits on an expedited basis, and we have a strong case. ]

 

Earlier tonight, the US Court of Appeals for the Federal Circuit imposed a stay pending appeal temporarily blocking implementation of the Court of International Trade ruling striking down Trump's "Liberation Day" tariffs, in the case filed by the Liberty Justice Center and myself on behalf of five businesses harmed by the tariffs. The stay also applies to the case filed by twelve states led by Oregon, decided in the same CIT ruling. The court's order is available here.

It's an unfortunate decision. As is often the case with stay orders, the court said very little about its reasoning. But it did seem to go out of its way to indicate this is not a ruling on the merits:

Both sides have made substantial arguments on the merits. Having considered the traditional stay factors, see Fed. R. App. P. 8; Nken v. Holder, 556 U.S. 418, 426 (2009), the court concludes a stay is warranted under the circumstances. See also Trump v. Wilcox, 605 U.S. ___, 145 S. Ct. 1415, 1415 (2025) (per curiam) ("The purpose of . . . interim equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward….")  The court also concludes that these cases present issues of exceptional importance warranting expedited en banc consideration of the merits in the first instance.

The court also ordered an expedited schedule for consideration of the case, and decided it would hear the case en banc (meaning it will be heard by all members of the court, and not just a three-judge panel), noting that "these cases present issues of exceptional importance warranting expedited en banc consideration of the merits in the first instance."

We have a strong case, and I remain guardedly optimistic that the appellate court will ultimately see that the President's claim of virtually unlimited power to impose tariffs is blatantly illegal—which is what every court to have considered the issue so far has concluded.

Liberty Justice Center Senior Counsel Jeffrey Schwab, with whom I am co-counsel on this case, issued the following statement, with which I agree.

We're disappointed the Federal Circuit allowed the unlawful tariffs to remain in place temporarily. It's important to note that every court to rule on the merits so far has found these tariffs unlawful, and we have faith that this court will likewise see what is plain as day: that IEEPA does not allow the president to impose whatever tax he wants whenever he wants. We are glad the Federal Circuit recognized the importance of this case, and agreed to hear it before the full court on an expedited schedule.

For those interested, a compendium of links my writings on the case is available here.

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[Eugene Volokh] Draft Amicus Brief in Chiles v. Salazar, the Professional Speech / Minor Conversion Therapy Case

I've written an amicus brief on my own behalf in this case (here's the PDF version). I'll be filing it tomorrow, but I thought I'd preview it here, in case there are some corrections or criticisms that I should take into account. Please let me know if you have anything to suggest (though please recall that the brief is aimed at fitting the case within the existing Supreme Court precedents, and not arguing to the Court how existing precedents should be overruled or modified).

Interest of the Amicus Curiae

Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford University. He is one of the few professors to have written on the speech integral to illegal conduct exception to the First Amendment, on which the decision below relied in part, Pet. App. 49a-50a. In particular, he is the author of The "Speech Integral to Criminal Conduct" Exception, 101 Cornell L. Rev. 981 (2016); Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases), 44 Harv. J.L. & Pub. Pol'y 147 (2022); One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking," 107 Nw. U. L. Rev. 731 (2013); and over 50 other law review articles on the First Amendment, as well as a First Amendment casebook.

Amicus hopes that this brief can help explain the proper boundaries of the speech integral to illegal conduct exception, and can show that this Court—unlike the court below—should not rely on that exception in this case.

Summary of Argument

[1.] Amicus takes no position on what First Amendment test this Court should articulate for restrictions on professional-client speech. But this Court should not apply the speech integral to illegal conduct exception to formulate such a test, or to resolve this case.

Speech cannot lose its protection just because it is relabeled conduct and then banned. Indeed, this Court has consistently recognized that making "conduct" illegal or tortious abridges free speech when the conduct consists of speech that supposedly causes harm because of what it communicates.

Rather, the "speech integral to illegal conduct" exception properly applies to speech that sufficiently risks causing or threatening some other nonspeech crime or tort: It is that relationship that makes speech "integral" to the criminal or tortious conduct.

The illegal conduct can consist of physical nonspeech behavior. It can consist of speech that is independently constitutionally unprotected under some other exception. And it can consist of an agreement, which is treated as analogous to physical conduct. But it is not enough that the speech itself be labeled illegal conduct, such as "contempt of court," "breach of the peace," "sedition," "use of illegally gathered information," "treatment," or "professional advice."

[2.] The Tenth Circuit thus erred in relying (Pet. App. 49a-50a) on the speech integral to conduct exception and on the case that first enunciated it, Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949). It is a mistake to say that the Colorado law "incidentally involves speech." Pet. App. 50a. Rather, the Colorado ban on conversion therapy, when applied to therapy that involves purely speech (as opposed to, say, the administration of medicines), targets speech precisely because of what it communicates.

In such cases, there is only speech—and no other illegal conduct. When psychotherapists counsel patients about how to accept their biological sex or how to avoid same-sex attraction, the psychotherapist is not promoting or threatening any separate crime or tort.

Argument

[I.] The speech integral to illegal conduct exception only applies to speech that promotes some other crime or tort

[A.] Speech cannot be restricted as "integral to illegal conduct" simply by classifying it as conduct

The First Amendment protects speech against many laws that make such speech illegal. Governments cannot evade that protection using laws that reclassify speech as conduct. To "classify some communications as 'speech' and others as 'conduct' is to engage in nothing more than a 'labeling game.' … Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment." King v. Governor of N.J., 767 F.3d 216, 228 (3d Cir. 2014) (citation omitted) (concluding that restrictions on conversion therapy cannot be justified by the argument that therapy, even purely verbal therapy, is conduct). If the "'only "conduct" which the State [seeks] to punish'" is "'the fact of communication,'" the statute regulates speech, not conduct. Otto v. City of Boca Raton, 981 F.3d 854, 866 (11th Cir. 2020) (citation omitted) (likewise).

Indeed, "[s]aying that restrictions on writing and speaking are merely incidental to speech is like saying limitations on walking and running are merely incidental to ambulation." Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1308 (11th Cir. 2017) (en banc) (invalidating a law that restricted doctors' conversations with patients about gun possession). Adopting this "circular" reclassification argument would enable governments to ban virtually any speech. Matter of Welfare of A.J.B., 929 N.W.2d 840, 859 (Minn. 2019) (striking down a stalking law, as applied to speech, and rejecting argument that it merely regulated conduct). The speech integral to illegal conduct exception does not validate such circular reasoning.

[B.] "Speech integral to illegal conduct" must refer to speech that promotes or threatens other illegal conduct

Rather, the word "integral," as used in the cases that apply the speech integral to illegal conduct exception, must be seen as referring to speech being connected to some other crime. "[T]he cases that involve this form of unprotected speech involve speech that furthers some other activity that is a crime." State v. Doyal, 589 S.W.3d 136, 143 (Tex. Crim. App. 2019). "[F]or the exception to apply, the speech must be integral to some conduct or scheme that is illegal in nature and independent of the speech that might be used to facilitate or accomplish the conduct or scheme." People v. Burkman, 15 N.W. 3d 216, 236 (Mich. 2024) (emphasis added); see also State v. Shackelford, 825 S.E.2d 689, 698-99 (N.C. Ct. App. 2019) (same). The exception cannot justify banning speech simply because the speech is illegal under the law that is being challenged, because then there is no other crime to which the speech is integral.

The progenitor of the speech integral to illegal conduct exception, Giboney, 336 U.S. 490, well illustrates how speech can lose constitutional protection by promoting some other illegal act. There, Empire Storage & Ice refused to join an unlawful cartel, and a "union thereupon informed Empire that it would use other means at its disposal to force Empire to come around to [its] view." Id. at 492. When "Empire still refused to agree," "[i]ts place of business was promptly picketed by union members." Id.

The Government could prohibit the union's picketing, this Court held, because the picketing essentially solicited a separate criminal act by Empire: The picketers' "sole, unlawful immediate objective was to induce Empire to violate the Missouri law" forbidding agreements in restraint of trade "by acquiescing in unlawful demands to agree not to sell ice to nonunion peddlers." Id. at 502. The speech integral to illegal conduct exception, however, would not have condoned prosecuting mere picketing, in the absence of some other crime that the picketing solicited.

Likewise, many courts considering bans on harassment or stalking have recognized the same principle. Those statutes generally make it a crime to communicate with the intent to "abuse," "annoy," "harass," "offend," or "severe[ly] emotional[ly] distress" a particular person. Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyber Stalking," supra, 107 Nw. U. L. Rev. at 740, 768-69. Because such laws are not limited to speech "'proximate[ly] link[ed]'" to "some other criminal act," they amount to "a direct limitation on speech that does not require any relationship—integral or otherwise—to unlawful conduct." People v. Relerford, 104 N.E.3d 341, 352 (Ill. 2017).

Similarly, in Matter of Welfare of A.J.B., the Minnesota Supreme Court rejected the Government's argument that a stalking by mail statute was valid under the "speech integral to [illegal] conduct" exception. 929 N.W.2d at 852, 859. There, the statute was unconstitutional because it was not limited to speech aimed "to induce or commence a separate crime." Id. at 852. The court recognized that the exception did not apply because "the speech covered by the statute is integral to [illegal] conduct because the statute itself makes the conduct illegal." Id. at 859; see also Doyal, 589 S.W.3d at 143 (the exception only covers "speech that furthers some other activity that is a crime"); State v. Burkert, 174 A.3d 987, 1000 (N.J. 2017) (harassment "cannot be transformed into [illegal] conduct" based on "[t]he circularity of the language of [a statute]"); People v. Marquan M., 19 N.E.3d 480, 484-86 (N.Y. 2014) (same for "cyberbullying").

Of course, legislatures are free to punish nonspeech stalking conduct, as well as narrow categories of constitutionally unprotected speech, such as true threats. But they cannot label speech that mentally distresses people "stalking" and then punish all such speech as integral to illegal conduct. Speech that is intended to annoy, offend, or distress does not help cause or threaten other illegal acts. And the same is true for labeling speech that allegedly psychologically harms clients as "counseling conduct" or "treatment[]." Pet. App. 50a.

To be sure, some courts have mistakenly concluded that the speech integral to illegal conduct exception applies to speech itself that is made illegal. In Commonwealth v. Johnson, 21 N.E.3d 937 (Mass. 2014), for example, the court supposed that a criminal harassment statute could be applied to online speech because "cyber harassment will consistently involve a hybrid of speech and conduct." Id. at 947 n.11. "There is content within the communications" involved in the case, the court admitted, "but the very act of using the Internet as a medium through which to communicate implicates conduct." Id.; see also United States v. Orsinger, 753 F.3d 939, 942, 944 (9th Cir. 2014) (likewise); United States v. Gonzalez, 905 F.3d 165, 193 (3d Cir. 2018) (likewise).

But if "the very act of using the Internet" "implicates conduct" and thus triggers lower protection, then a newspaper article likewise "implicates conduct" in the sense that a printing press has to put ink on paper. If such speech is "conduct," it is only conduct in the trivial sense that all speech is also conduct. The Johnson court erred in concluding that the speech integral to illegal conduct exception applied—there was no other act besides the challenged speech.

[C.] The exception is a basis for several canonical First Amendment exceptions that also require separate illegal acts

This Court has cited Giboney to help explain why several categories of speech receive no constitutional protection. In the process, this Court has narrowly and carefully defined those traditional exceptions to ensure they cover only unprotected speech: Not all speech that does tend to indirectly promote crime is constitutionally unprotected. See Volokh, The "Speech Integral to Criminal Conduct" Exception, supra, 101 Cornell L. Rev. at 993-97, 998-99, 1000-03, 1005-07, 1008-10. But in any event, this Court has limited those Giboney-linked exceptions to speech that sufficiently risks causing or threatening a nonspeech crime or tort.

[1.] Fighting words are a special case of the Giboneyprinciple. Giboney cited Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), this Court's seminal fighting words case, to support Giboney's articulation of the speech incident to illegal conduct exception. 336 U.S. at 502; see also Cox v. Louisiana, 379 U.S. 559, 563 (1965)(citing Chaplinsky and Giboney as examples where "conduct mixed with speech may be regulated or prohibited"). And this makes sense: Giboney applies to fighting words because fighting words tend to cause other criminal conduct (retaliatory violence).

[2.] The Giboney rule is also linked to the true threat exception. Giboney relied on two cases that discussed the threats doctrine in concluding speech "used as an essential and inseparable part of a grave offense against an important public law" may be restricted. 336 U.S. at 590(citing Thomas v. Collins, 323 U.S. 516, 537-38 (1945); Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 539, 549 (1943)). In turn, Giboneyhas been cited for the proposition that threats are constitutionally unprotected. See, e.g., Ohralik v. Ohio State Bar Ass'n., 436 U.S. 447, 456 (1978) (citing NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)).

Rumsfeld v. FAIR, 547 U.S. 47 (2006), offers a concrete example of why threats can be integral to illegal conduct. "The fact that" bans on racial discrimination in hiring "will require an employer to take down a sign reading 'White Applicants Only' hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct." Id. at 62.

The sign "White Applicants Only" is a threat of tortious conduct (illegal discrimination). Someone who is not white and sees the sign will know that, if he applies for the job, he will get nothing except a humiliating rejection. As a result, he will not apply. Threatening potential applicants with unlawful exclusion from consideration for a job is unprotected speech, because it is a threat of a separate tortious act: illegal discrimination.

[3.] Criminal solicitation is another proper application of Giboney. In United States v. Williams, 553 U.S. 285 (2008), this Court cited Giboney for the proposition that "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection." Id. at 297. This Court explained that such speech is closely connected to illegal conduct because "offers to provide" contraband solicit listeners to commit unlawful receipt of contraband, and "requests to obtain contraband," solicit listeners to commit unlawful distribution of contraband. Id. And this Court listed "solicitation" of crime alongside offers of contraband as covered by the Giboney principle. Id. at 297-98. United States v. Hansen, 599 U.S. 762 (2023),likewise cited Giboney as support for the proposition that "[s]peech intended to bring about a particular unlawful act"—especially including solicitation—is generally constitutionally unprotected. Id. at 783.

[4.] The child pornography exception is another prominent application of Giboney. This Court cited Giboney to explain that child pornography is unprotected because its production and distribution is illegal. "The market for child pornography was 'intrinsically related' to the underlying abuse, and was therefore 'an integral part of the production of such materials, an activity illegal throughout the Nation.'" United States v. Stevens, 559 U.S. 460, 471 (2010)(quoting reasoning from New York v. Ferber, 458 U.S. 747, 761-62 (1982), which Ferber in turn quoted from Giboney). The existence of a market for child pornography helps cause the production of more child pornography (and thus the abuse of more children). And this other crime does not itself consist of protected speech.

[5.] Giboney is also a basis for laws that ban conspiracies to engage in illegal conduct, such as conspiracies to restrain trade. See Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011)(citing Giboney for the proposition that antitrust law can constitutionally prohibit "agreements in restraint of trade"); Ohralik, 436 U.S. at 456 (1978)(same). Such conspiracies fit neatly within the speech integral to illegal conduct exception, because they tend to cause a distinct, nonspeech crime.

[6.] And Giboney is also a basis for laws that may be applied to conduct that has "incidental" effects on speech that are independent to its communicative impact. In Sorrell, this Court suggested that when "an ordinance against outdoor fires" is applied to "burning a flag," that application is valid for reasons related to the Giboney rationale. 564 U.S. at 567. "[B]urning a flag" was affected "incidental[ly]," in the sense that the ordinance applied to such speech without regard to the supposed harms that flowed from its communicative content. Id.Indeed, the language of "incidental" restrictions on speech was used in United States v. O'Brien, 391 U.S. 367 (1968), the precedent that would normally be applied to restrictions on outdoor fires. Id. at 376-77. Sorrell's explanation of "incidental" fits well with Giboney's statement that the First Amendment generally does not protect "speech or writing used as an integral part of conduct in violation of a valid criminal statute," 336 U.S. at 498—which is to say in violation of a criminal statute (such as an ordinance against outdoor fires) that targets nonspeech conduct.

Rumsfeld provides another example of a law that has "incidental" effects on speech. Rumsfeld cited Giboney in holding that a law requiring universities to treat military recruiters on par with other recruiters could constitutionally be applied to the universities' sending out announcements about where the recruiters were going to be. 547 U.S. at 61-62. The equal treatment provision applied to equal distribution of speech as well as, for instance, equal provision of space. Id. at 70. As in Sorrell, the law affected speech "incidentally" in Rumsfeld because it applied to the speech without regard to its communicative impact.

[* * *]

The speech integral to illegal conduct exception has helped this Court develop rules allowing restrictions on some narrow categories of speech in some situations where that speech may cause other unlawful (criminal or tortious) conduct. It does not authorize speech restrictions that are justified simply by labeling the speech itself as forbidden conduct.

[D.] Even general restrictions on conduct are treated as speech restrictions when they target speech because of what it communicates

Some laws ban broad range of conduct, but in the process cover some speech precisely because of what the speech communicates. In those situations, the laws are treated as speech restrictions, and the speech integral to illegal conduct exception does not justify them.

[1.] Consider, for example, breach of the peace. Cohen v. Californiainvolved a defendant who was prosecuted for breach of the peace because he wore a shirt with an expletive in a courthouse. 403 U.S. 15, 16-17 (1971). This Court reversed: Because "[t]he only 'conduct' which the State sought to punish is the fact of communication," this Court held, "we deal here with a conviction resting solely upon 'speech.'" Id. at 18. The conduct regulation "rested solely upon speech," that is, on "the fact of communication." Id.And the Court reasoned this way even though other defendants could breach the peace through many other kinds of conduct that did not involve speech. Id. at 16 & n.1.

Nor would the speech integral to illegal conduct have justified a different result. Before and after Giboney, this Court invalidated generally applicable breach-of-the peace laws when those laws were applied to speech based on "the effect of [the speaker's] communication on his hearers." Cantwell v. Connecticut, 310 U.S. 296, 309 (1940); see also Edwards v. South Carolina, 372 U.S. 229, 234-37 (1963); Hess v. Indiana, 414 U.S. 105, 105 n.1, 107-09 (1973).

[2.] Like breach-of-peace law, contempt-of-court law prohibits a wide range of conduct, speech or otherwise. Yet by the time this Court decided Giboney, it had already held that facially valid contempt-of-court rules might be unconstitutional as applied to out-of-court speech because of what it communicates. Bridges v. California, 314 U.S. 252, 258, 278 (1941). And this Court set aside convictions for statutory contempt of court under the First Amendment, both before and after Giboney. See, e.g., Pennekamp v. Florida, 328 U.S. 331, 333, 349-50 (1946); Craig v. Harney, 331 U.S. 367, 368, 378 (1947); Wood v. Georgia, 370 U.S. 375, 395 (1962).

[3.] Or take the intentional infliction of emotional distress tort, which covers, among other things, a wide range of conduct and constitutionally unprotected speech (such as threats, State Rubbish Collectors Ass'n v. Siliznoff, 240 P.2d 282 (Cal. 1952)). Yet in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), and Snyder v. Phelps, 562 U.S. 443 (2011), this Court set aside intentional infliction of emotional distress verdicts when those verdicts were based on constitutionally protected speech that caused distress due to its message. To be sure, this Court has left open the possibility that speech that is not "of public concern" and that outrageously inflicts severe emotional distress may be actionable. Snyder, 562 U.S. at 451-52. But this was not based on any general conclusion that a facially speech-neutral tort could be freely applied to speech as well as conduct.

[4.] Likewise, the tort of interference with business relations—another facially valid tort that covers a wide range of conduct—is subject to serious First Amendment scrutiny when it is applied to speech because of what it communicates. In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), this Court held that the First Amendment barred applying the tort to speech that interfered with business relations by urging a political boycott: "[T]he presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability." Id. at 912-13, 916-17.

[5.] Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), also considered a statute triggered by the communicative content of speech as a speech restriction. The statute in Holder prohibited providing "material support" to foreign terrorist organizations. Id. at 26. The statute covered conduct, such as the provision of money or goods, and speech, such as "training on the use of international law or advice on petitioning the United Nations." Id. at 27.

The Government argued that the law was therefore a speech-neutral conduct restriction that only incidentally burdened speech—even when the law was triggered by the communicative content of certain speech (such as training or advice). Id. at 27-28. Under this theory, there would be no need to conclude that the speech constitutes punishable solicitation of some other crime (or threat, conspiracy, or aiding and abetting). So long as the speech fits the elements of the facially speech-neutral material support statute, it can be punished.

Holder rejected that argument. Like Cohen, this Court explained, Holder "involved a generally applicable regulation of conduct." Id. at 28. But Cohen "recognized that the generally applicable law was directed at Cohen because of what his speech communicated—he violated the breach of the peace statute because of the offensive content of his particular message." Id. Thus, this Court "applied more rigorous scrutiny," and "did not apply O'Brien," the test applicable to conduct restrictions that incidentally burden speech. Id. Rather, strict scrutiny had to be applied to the material support ban where the speech constitutes material support "because of what [the] speech communicated." Id.

This Court did not have occasion in Holder to expressly decide whether the speech integral to illegal conduct exception would render the plaintiffs' speech unprotected. The Government had briefly argued that the Humanitarian Law Project's speech was unprotected because it was "coordinated with foreign terrorist organizations" and was similar to "speech effecting a crime, like the words that constitute a conspiracy." Id. at 27 n.5. The Court cited Giboney as a "See, e.g.," following this statement, but then declined to "consider any such argument because the Government does not develop it." Id. Still, consistent with Cohen, Holder's reasoning does reject the more general claim that speech can be punished whenever it violates a generally applicable conduct restriction.

[* * *]

The logic of the examples above applies equally to restrictions on professional-client conduct: Even when those restrictions apply to nonspeech conduct (e.g., administering medicine) as well as to speech, they must be treated as speech restrictions when they are applied to speech because of its communicative impact.

[II.] The speech integral to illegal conduct exception does not explain what restrictions on professional speech are permissible

How much First Amendment protection professional-client speech should receive is a difficult and important question this Court should answer. Amicus takes no position on this question. But the speech integral to illegal conduct exception does not help answer this question, and it would be a mistake for this Court to apply the exception here.

The Tenth Circuit held that Colorado's statute was constitutional in part because of the speech integral to conduct exception:

"[I]t has never been deemed an abridgement of freedom of speech … to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). The MCTL incidentally involves speech because an aspect of the counseling conduct, by its nature, necessarily involves speech. By regulating which treatments Ms. Chiles may perform in her role as a licensed professional counselor, Colorado is not restricting Ms. Chiles's freedom of expression. In other words, Ms. Chiles's First Amendment right to freedom of speech is implicated under the MCTL, but it is not abridged.

Pet. App. 49a-50a. The Tenth Circuit was mistaken, for the reasons discussed in Part I. That court's reasoning would allow any government to eliminate the First Amendment's protections by creating a category (say, "counseling conduct") that includes conduct and declare that any regulation of speech within the category is a conduct restriction. But "'[m]ere labels' of state law" do not confer "talismanic immunity from constitutional limitations"—whether the labels are "insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business," N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964), or "professional conduct" or "therapy." Pet. App. 47a-48a. Restrictions on speech, this Court explained, "must be measured by standards that satisfy the First Amendment," regardless of how the speech is labeled. N.Y. Times, 376 U.S. at 269.

Thus, whatever rule the Court adopts for professional-client speech, it should not craft it based on Giboney and on the speech integral to illegal conduct exception. The exception is triggered, as Part I explained, only when the speech tends to cause or threaten other illegal conduct, not when the only illegality is that the speech violates the challenged law itself.

The exception thus is not applicable here. When a psychotherapist counsels a patient about how the patient can "grow in the experience of harmony with [the patient's] physical body," the psychotherapist is not promoting or threatening any separate crime or tort. Pet. App. 12a-14a. Petitioner's "speech is not just one step in service of some separately illegal act, unlike the speech involved in soliciting a crime, demanding ransom, or posting a 'White applicants only' sign as part of hiring discrimination." Veterans Guardian VA Claim Consulting LLC v. Platkin, 133 F.4th 213, 221 (3d Cir. 2025). Rather, petitioner is conveying advice, or teaching a patient how to avoid some legal behavior and to engage in other legal behavior instead, Pet. App. 12a-14a—and advice and teaching are classic examples of speech. Petitioner's "speech is the core of what [she] does." Veterans Guardian, 133 F.4th at 221. She may be speaking during an extended set of conversations (a "course of conduct" in that sense of the phrase), but that does not make the speech regulable.

The Tenth Circuit was thus mistaken to rely on Giboney for the conclusion that Colorado's law "incidentally involves speech because an aspect of the counseling conduct, by its nature, necessarily involves speech." Pet. App. 50a. "What Cohen and Holder teach is that a regulation that bars speech because of what it communicates is a direct regulation of speech, not a regulation of conduct that incidentally affects speech." Id. at 99a (Hartz, J., dissenting).

To be sure, some restrictions on some professional-client speech may indeed focus on speech closely related to nonspeech conduct. For instance, as Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 768 (2018) (NIFLA), makes clear, when a doctor seeks to perform "an operation" (such as abortion), "the requirement that a doctor obtain informed consent to perform an operation is 'firmly entrenched in American tort law.'" Id. at 770 (citation omitted). Such a requirement is a classic example of a regulation of "professional conduct, even though that conduct incidentally involves speech," id. at 768: The underlying regulation is of the nonspeech physical procedure, and the compelled speech is just what is necessary to obtain informed consent for the physical procedure.

By contrast, the challenged statute in NIFLA was viewed as an impermissible speech compulsion, because it was not closely tied to physical conduct other than speech. In NIFLA, pregnancy centers were required to inform patients about the availability of low-cost abortions. Id. at 762-66. The law was "not tied to a procedure at all" and "applie[d] to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed." Id. at 770. The statute in NIFLA thus could not be sustained as "an informed-consent requirement or any other regulation of professional conduct." Id. Indeed, the NIFLA law applied even when a clinic would merely "offer[] counseling about[] contraception or contraceptive methods," or "pregnancy options counseling," rather than any medical procedure. Id. at 777.

To be sure, women who go to pregnancy counseling centers are likely contemplating some future medical procedure, whether an ultrasound, an eventual delivery of a child, or an eventual abortion. Id. at 779 (Breyer, J., dissenting). But the majority's view appeared to be that speech compulsions are allowed only when they discuss the particular procedure that the speaker was planning to perform, or alternatives to that procedure. Id. at 770.

NIFLA also suggested there may be other zones of permissible restriction on professional-client speech. That is particularly true as to professionals' commercial advertising: "[L]aws that require professionals to disclose factual, noncontroversial information in their commercial speech" get "less protection." Id. at 768. And it may also be true when there is "'persuasive evidence of a long (if heretofore unrecognized) tradition to that effect.'" Id. at 767 (citation omitted). Some widespread professional speech regulations, such as licensing requirements and compelled disclosures protections, could conceivably qualify. Volokh, The "Speech Integral to Criminal Conduct" Exception, supra, 101 Cornell L. Rev. at 1043 nn.331-33 (providing examples of typical state regulations in these areas).

But in any event, whatever professional-client speech doctrine this Court chooses to adopt, it should not rely on Giboney or conclude that professional-client speech may be regulated simply by labeling it counseling conduct.

Conclusion

The speech integral to illegal conduct exception does not apply to this case because the exception only covers speech closely tied to a separate crime or tort. Laws like Colorado's, which reclassify certain speech as conduct and then ban it, do not qualify. There is no other crime here. "Professional services delivered by speaking or writing are speech." Veterans Guardian, 133 F.4th at 229.

Amicus does not take a position on what sorts of restrictions on professional speech are permissible. But the explanation for any broad lack of protection must come from something other than a "conduct, not speech" argument—just as the explanation for exceptions such as defamation comes from something other than labeling the speech "conduct." N.Y. Times, 376 U.S. at 269.

 

The post Draft Amicus Brief in Chiles v. Salazar, the Professional Speech / Minor Conversion Therapy Case appeared first on Reason.com.

[Eugene Volokh] Webinar Conversation on the First Amendment and Requiring Fifth-Graders to Read Pro-Gender-Ideology Books to Kindergarten Students

I much enjoyed this conversation with Kayla Ann Toney (First Liberty Institute), who was the prevailing lawyer in S.E. v. Grey:

Encinitas Unified School District required two fifth-grade boys and their assigned kindergarten buddies to read and watch My Shadow is Pink and do an activity, pressuring the kindergartners to choose a color to represent their own shadows. The plaintiffs allege this was designed to make the students question their gender identity. Represented by First Liberty Institute and the National Center for Law and Policy, the families filed a complaint in the Southern District of California and sought a motion for preliminary injunction. On May 12, 2025, Judge M. James Lorenz granted that motion in part, requiring the school district to provide advance notice and opt-outs when gender identity material is taught in mentoring programs. The judge's opinion focused on compelled speech, finding that the plaintiffs were likely to succeed on the merits of that claim. Free speech expert Professor Eugene Volokh and counsel Kayla Toney, who represents the families, broke down the opinion and discussed its ramifications for First Amendment jurisprudence.

Here's an excerpt from Judge James Lorenz's order from last month:

The school activity at issue occurred in the context of the buddy program, a weekly class pairing younger and older students. The buddy program is a mandatory part of the school curriculum. P.D. and S.E., both fifth graders, were each paired with a kindergartener. In this program, "students in the older classroom mentor students in the younger classroom."

Until the buddy class at issue, the buddy program involved art or garden projects, and any books read in the class were selected by the students. The school sent parents a weekly newsletter listing the books the students were reading each week. For the buddy class at issue, the book entitled My Shadow Is Pink was selected by the teachers and was not listed in the weekly newsletter.

My Shadow Is Pink is about a boy who liked to wear dresses and play with toys associated with girls. Because the boy thought he did not "fit in" with his family and peers, his shadow was pink rather than blue. The story involves a conflict between the boy and his father. The father eventually comes to accept his son's "pink shadow" not as a phase but as reflecting the boy's "inner-most self." Although the term "gender identity" does not appear in the book, the author describes it as a children's book on the subject of gender identity. Defendants admit that the book "does address gender identity."

In preparation for the buddy class, the teacher first read the book to P.D. and S.E.'s fifth grade class. The fifth graders then joined their kindergarten buddies, and the teacher showed a read-along video of the book to the fifth graders sitting next to their respective buddies. The video was followed by an "art activity" in which the teacher asked the kindergarteners to "pick a color that represents you," and instructed the fifth graders to trace their respective buddies' shadows on the ground with colored chalk.

Although the class did not involve an explicit discussion of gender identity, the fact that the book addressed this issue was not lost on the students. S.E. described the book as "about LGBTQ." P.D. described it as "about a boy who wanted to change his gender to be a girl."

Because choosing one's own gender identity is contrary to Plaintiffs' religious beliefs, they were uncomfortable with the buddy class. Moreover, as mentors, P.D. and S.E. did not wish to affirm the book's message to their buddies.

When S.E. and P.D. told their parents about the class, the parents inquired with Defendants why they did not receive notice and an opportunity to opt out, as they did when gender identity was covered in health instruction…. California Education Code Section 51240 … provides in pertinent part:

If any part of a school's instruction in health conflicts with the religious training and beliefs of a parent or guardian of a pupil, the pupil, upon written request of the parent or guardian, shall be excused from the part of the instruction that conflicts with the religious training and beliefs.

… Defendants responded that Plaintiffs had no right to opt out because the buddy class was not part of a "health unit." Furthermore, the teachers suggested that similar buddy activities would be provided in the future without notice and an opportunity to opt out.

S.E.'s and P.D.'s parents sued on their children's behalf. The court held that the program, which was "a mandatory part of the curriculum," likely violated the First Amendment rights of students who didn't want to participate:

The buddy program differs from regular classroom instruction in that the fifth graders mentor their kindergarten buddies. In addition, My Shadow Is Pink buddy class required fifth graders to trace their buddy's shadow on the ground in the buddy's chosen color. P.D. was therefore not merely a passive listener…. P.D.'s tracing of his buddy's shadow on the ground was an expressive act protected by the First Amendment….

In light of P.D.'s role in the class as his buddy's mentor, P.D.'s presence next to his buddy during the read-along video presentation and subsequent tracing of his buddy's shadow in the buddy's chosen color implicitly conveyed P.D.'s endorsement of the message that gender can be a matter of one's choice and subject to change—a message contrary to P.D.'s own beliefs and which he did not wish to convey to his buddy. P.D.'s required participation in the buddy class therefore directly and immediately affected P.D.'s freedom of speech.

"Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech." Laws and regulations which alter content of speech in this manner are content based…. "Content-based regulations are 'presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.'"

California Education Code [sections] regarding instructional materials and social sciences instruction … require schools to include the study of the role played and contributions made to California and national development by members of historically marginalized groups, including lesbian, gay, bisexual, and transgender groups. California law also prohibits excluding educational materials due to covering the marginalized groups, mandates that these groups be accurately reflected in educational materials, and prohibits their adverse portrayal. Defendants argue that My Shadow Is Pink conformed to these requirements. Its inclusion in the buddy program was intended to stress the acceptance of those who are different and reduce the serious effects of discrimination against gender-diverse individuals.

Remedying the effects of past discrimination may serve as a compelling government interest in public education. Nevertheless, "[b]road prophylactic rules in the area of free expression are suspect[,]" and antidiscrimination laws "can sweep too broadly when deployed to compel speech." The First Amendment imposes limitations on the application of such laws, and "demands a more precise level of analysis than the high level of generality" offered by anti-discrimination laws.

The California Education Code provisions cited by Defendants and Defendants' reasons for introducing My Shadow Is Pink to the buddy program reflect an admirable purpose. However, they do not meet the requisite narrow tailoring to justify interference with students' freedom of speech. Laws intended to "eliminat[e] discrimination against LGBTQ individuals" and remedy the serious mental and emotional harm of discrimination are generally insufficient to meet strict scrutiny. Further, Defendants have not shown that compliance with Education Code requirements and legislative purpose cannot be accomplished in ways other than compelled speech. "In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."

Based on the foregoing, Plaintiffs have met their burden to show that they are likely to prevail on the merits of their claim that Defendants violated P.D.'s rights under the Free Speech Clause of the First Amendment by requiring his participation in My Shadow Is Pink buddy class. In light of this finding, the Court need not review the likelihood of success on the merits of Plaintiffs' remaining claims….

The court therefore granted a preliminary injunction ordering that, as "to the Encinitas Union School District elementary school buddy program," "buddy program class activities and materials shall not cover gender identity topics covered in health instruction, unless Defendants provide parents with advance notice and an opportunity to opt out."

The post Webinar Conversation on the First Amendment and Requiring Fifth-Graders to Read Pro-Gender-Ideology Books to Kindergarten Students appeared first on Reason.com.

[Ilya Somin] Liberty Fund Symposium on "The Legacy of David Boaz" Continues

[There are now initial contributions by Andy Craig, Tarnell Brown, Aaron Ross Powell, Jonathan Blanks, and myself, plus response essays.]

David Boaz. (Cato Institute)

 

The Liberty Fund symposium on "The Legacy of David Boaz" –  prominent libertarian thinker and longtime Cato Institute leader—is continuing. We now have initial essays by all five participants—Andy Craig, Tarnell S. Brown, Aaron Powell, Jonathan Blanks, and myself. Each person will also have two response essays commenting on others' contributions, and some have already been posted, including my own.

Here are the contributions posted so far:

Andy Craig, "David Boaz Understood Liberty and the Rule of Law are Inseparable"

Ilya Somin, " David Boaz on Immigration"

Tarnell Brown, "Perspective Essay Invasive Illiberalism: David Boaz and the Russo-Ukrainian War"

Aaron Ross Powell, "David Boaz and Trans Rights"

Jonathan Blanks, "The Expansion of Liberty makes America Great"

Jonathan Blanks, "Embracing a Liberalism beyond Policy" (Response Essay)

Ilya Somin, "Liberal Universalism and the Menace of Nationalism" (Response Essay)

Here is an excerpt from my response essay:

I have few disagreements with the other contributors to the symposium in honor of David Boaz. But I want to take this opportunity to highlight some common themes that run through all our essays. Most notable is the imperative of extending liberty to as wide a range of people as possible, breaking through morally arbitrary distinctions such as those of race, gender, sexual orientation, and immigrant status. The struggle for liberty also cannot stop at national boundaries, but rather must include liberal states working to oppose oppressive regimes internationally, in some cases by force.

Like most libertarians, David Boaz advocated protecting a wide range of liberties, both "economic" and personal. But he went further than many in emphasizing the importance of extending those rights to all people, without distinction. Central to David's thought was the idea that libertarianism requires both a broad conception of the range of liberties that must be protected, and a broad view of the range of people entitled to that full protection.  As Andy Craig puts it, "[n]othing offended David more than picking and choosing some people as more deserving of freedom than others, treating some people's rights as important and other people's rights as disposable."

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