Eugene Volokh's Blog

Financial Times (Ellesheva Kissin) reports:

The Big Four accountancy and consultancy firm will repay the final instalment of its government contract after conceding that some footnotes and references it contained were incorrect, Australia's Department of Employment and Workplace Relations said on Monday….

In late August the Australian Financial Review reported that the document contained multiple errors, including references and citations to non-existent reports by academics at the universities of Sydney and Lund in Sweden….

While Deloitte did not state that AI caused the mistakes in its original report, it admitted that the updated version corrected errors with citations, references, and one summary of legal proceedings….

The post "Deloitte Issues Refund for Error-Ridden Australian Government Report That Used AI" appeared first on Reason.com.

[Jane and I speak with Eric Heinze (Queen Mary University of London) about how the digital age has transformed the meaning and limits of free expression, from Britain’s recent Lucy Connolly case—involving online incitement and hate speech—to the philosophical and legal contrasts between the American Brandenburg standard and the U.K.’s more interventionist approach.]

Prof. Heinze argues that democracies must rethink free speech in an era dominated by opaque, powerful platforms like Twitter and Facebook, where risk, harm, and accountability are far harder to define. He and Jane and I debate whether governments—or tech companies—should bear responsibility for regulating speech online, and what "freedom" really means when algorithms, not citizens, shape public discourse.

Our past episodes:

From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Eric HeinzeA Conversation with FIRE's Greg LukianoffFree Speech Unmuted: President Trump's Executive Order on Flag DesecrationFree Speech and DoxingThe Supreme Court Rules on Protecting Kids from Sexually Themed Speech OnlineFree Speech, Public School Students, and "There Are Only Two Genders"Can AI Companies Be Sued for What AI Says?Harvard vs. Trump: Free Speech and Government GrantsTrump's War on Big LawCan Non-Citizens Be Deported For Their Speech?Freedom of the Press, with Floyd AbramsFree Speech, Private Power, and Private EmployeesCourt Upholds TikTok Divestiture LawFree Speech in European (and Other) Democracies, with Prof. Jacob MchangamaProtests, Public Pressure Campaigns, Tort Law, and the First AmendmentMisinformation: Past, Present, and FutureI Know It When I See It: Free Speech and Obscenity LawsSpeech and ViolenceEmergency Podcast: The Supreme Court's Social Media CasesInternet Policy and Free Speech: A Conversation with Rep. Ro KhannaFree Speech, TikTok (and Bills of Attainder!), with Prof. Alan RozenshteinThe 1st Amendment on Campus with Berkeley Law Dean Erwin ChemerinskyFree Speech On CampusAI and Free SpeechFree Speech, Government Persuasion, and Government CoercionDeplatformed: The Supreme Court Hears Social Media Oral ArgumentsBook Bans – or Are They?

The post Free Speech Unmuted: From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Prof. Eric Heinze appeared first on Reason.com.

[A revealing interview with the Supreme Court's "Steel Magnolia."]

Justice Amy Coney Barrett has been giving lots of interviews summer and fall as she promotes her best-selling book, Listening to the Law: Reflections on the Court and Constitution. Many of these interviews cover what is now well-trodden ground. Reading them all gets repetitive.

An exception is this recent interview by Jan Crawford of CBS News which digs a little more deeply into Justice Barrett's perspective about how she approaches her work on the Court (and much else).

Among the topics they discuss is how Justice Barrett feels about being protested, criticized, and potentially threatened. From the interview:

For Barrett, protesters have become routine, another logistical wrinkle in her everyday life, much like the ones who regularly gather at her home outside Washington, D.C., where she lives with her husband and younger children. What surprises her, she told me in a wide-ranging interview in her chambers late last month, is how she can let it roll off her back.

"If I had imagined before I was on the Court, how I would react to knowing that I was being protested, that would have seemed like a big deal, like, 'oh, my gosh, I'm being protested,'" she says. "But now I have the ability to be like, 'Oh, okay, well, are the entrances blocked?' I just feel very businesslike about it. It doesn't matter to me. It doesn't disrupt my emotions." . . .

As Crawford notes, criticism of the Court has led to threats on the justices themselves. The individual who sought to kill Justice Kavanaugh was just sentenced (to a paltry eight years), and there appears to have been a threat to several justices at this past weekend's "Red Mass."

I asked Barrett if she is ever afraid. Her response was immediate and emphatic: "I'm not afraid."

"You can't live your life in fear," she continued. "And I think people who threaten — the goal is to cause fear. And I'm not afraid. I'm not going to reward threats with their intended reaction."

That kind of mental discipline and self control, even in the face of threats and extreme criticism, reflects an outlook that has guided the 53-year-old Barrett much of her life.

Given the threats justices face in our current moment, criticism from commentators would seem to be small potatoes.

Her critics aren't convinced, but Barrett seems unfazed by the attacks on her judgment or her character. In our conversation, and in multiple interviews with those who know her, she comes across as someone with a strong sense of self and an equally clear view on the right way to interpret the Constitution. Unlike some justices, she says she doesn't monitor what journalists and law professors and politicians say about the Court. She has seen them get it wrong. It doesn't matter to her.

"If I could have, especially as a 16-year-old, imagined that I would not care or be impervious to being criticized and mocked, I would have been very surprised," she says. "And so I am glad, because I think this would be a miserable job if you let yourself care, if you let yourself be affected."

There is lots more in the interview. One other fun tidbit is this discussion of how she came to consider herself an originalist.

In our interview, Barrett said she was drawn to originalism when she read Justice Scalia's opinions in a constitutional law class during her second year at Notre Dame Law School. She said she was frustrated after a first-year criminal law class, reading liberal decisions of the Warren Court and finding them to be "unmoored." Scalia's opinions, with his originalist framework, made sense to her.

"I think I am different in style than Justice Scalia. I don't think I'm different in substance," she said. "I think one thing that was important to Justice Scalia is fidelity to his analytical framework, so fidelity to textualism and originalism, even when it led to places that he didn't want to go."

The full interview is worth a read. It is available here.

The post Justice Barrett Is "Not Afraid" appeared first on Reason.com.

[A reply to the Associate Justice's recent remarks. ]

In a recent NRO interview, Justice Amy Coney Barrett said she did not "like this common good constitutionalism movement," suggesting it was too "results-oriented."

At the New Digest, Professor Adrian Vermeule, author of Common Good Constitutionalism, has responded to Justice Barrett's comments. Here is a taste:

here is a serious ambiguity in Justice Barrett's critique.4 There is a sense of "result-oriented" that Justice Barrett would be quite right to criticize; in this sense, the judge must avoid result-orientation at all costs. This sense is captured in the federal judicial oath mandated by 28 U.SC. 453, which requires the judge to swear to "administer justice without respect to persons, and do equal right to the poor and to the rich." The judge must show no partiality whatsoever as between the parties to the case.

But I'm not at all sure that's what Justice Barrett means by "result-oriented." If, as I suspect, she is drawing upon a different sense of "result-oriented" widespread in originalist writing, she means something quite different: judges interpreting the law must never take into account the consequences for the common good or public interest of the various possible interpretations. Fiat sensus primigenius, ruat caelum - let the original meaning be done, though the heavens fall.

Common good constitutionalism does indeed hold that judges interpreting the law should sometimes take into account the consequences of their interpretations for the public interest; in that sense, although only in that sense, Barrett's charge of "result-orientation" is perfectly true. The difference between Barrett and the classical lawyer, however, is that the classical lawyer does not think it is bad for judges to be "result-oriented" in the second sense. Indeed I believe that "result-orientation" in the second sense is so firmly grounded in our legal theory and practice, from the very beginning of our republic, that any good-faith originalist ought to recognize a kind of bounded legal consequentialism as one component of her approach to adjudication.

The full essay is available here.

Justice Barrett is not the first jurist to critique common good constitutionalism. I noted Judge Bill Pryor's critique, as well as Prof. Vermeule's response (with Conor Casey).

The post On Common Good Constitutionalism: Vermeule Response to Barrett appeared first on Reason.com.

From today's notice of dismissal, filed by the plaintiff's lawyerin Hook v. Rave:

On October 3, defendants wisely abandoned their notice of intention to terminate Professor Hook for his First Amendment protected speech about a matter of substantial public interest. Defendants have returned Professor Hook to his full duties, and have not punished him in any way, nor do they seek to punish him in any way. So Professor Hook has received the relief he sought in this lawsuit, which makes this case moot. Accordingly, Professor Hook hereby dismisses it without prejudice in accordance with F. R. Civ. P. 41(a)(1)(A)(i).

Here's my post about an earlier court decision in the case:

[* * *]

From [the Sept. 24] 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 Univ. of South Dakota Withdraws Planned Firing of Art Professor for Vulgar Tweet Calling Charlie Kirk a "Hate Spreading Nazi" appeared first on Reason.com.

[While conservative criticisms of the Burger Court may be justified, those criticisms do not apply to the "The Chief." He had only one vote on the Court ... and, too often, too little support from his colleagues to reach originalist results.]

My co-blogger Josh Blackman has an interesting post, observing that the current Roberts Court has largely left Warren Court precedents in place, while often undoing Burger Court precedents. Blackman's argument is well-made. But in concluding his post, Blackman diverts into an unnecessary attack on Chief Justice Burger. Blackman suggests it was Chief Justice Burger who was "driving those trains" that went off the tracks. As a former law clerk for "The Chief" (as we called him), I'm biased. But I believe Blackman's criticisms of The Chief miss their mark. Blackman fails to adequately consider the situation that The Chief all too often himself in—one vote on a nine-Justice court that was often inclined to reaffirm and even expand dubious Warren Court precedents. And, if he had joined or written dissenting opinions, the result would often have been that the case assignment would have then moved from him (as the senior, Chief Justice) to a very liberal justice, with an even worse decision likely emerging. Working within these considerable constraints, The Chief took important steps to help to set the stage for the later originalist revolution.

Blackman launches his attack by looking at nine decisions of the Burger Court that have since been reversed. For convenient reference, I reproduce Blackman's list below:

Roe v. Wade (1973), reversed by Dobbs v. Jackson Women's Health Organization (2022). Board of Regents of California v. Bakke (1978), which largely upheld the use of affirmative action policies. This decision was (basically) reversed by Students for Fair Admissions v. Harvard (2024). Lemon v. Kurtzman (1971) prohibited any "entanglement" between church and state.  Kennedy v. Bremerton School District (2022) effectively overruled the Lemon test. Abood v. Detroit Board of Education (1977) upheld the power of public sector unions to mandate certain dues from employees. Janus v. AFSCME (2018) overruled Abood. Chevron v. NRDC (1984) ruled that courts should defer to administrative agencies when a statute is "ambiguous." Loper Bright v. Raimondo (2024) overruled Chevron deference.  Apodaca v. Oregon (1972) allowed non-unanimous juries. It was overruled by Ramos v. Louisiana (2020). Nevada v. Hall (1979) held that states lack sovereign immunity from private lawsuits filed against them in the courts of another state. It was overruled by Franchise Tax Board of California (2019). Williamson County Planning v. Hamilton Bank (1985) limited access to federal courts for plaintiffs raising Takings Clause claims. It was overruled by Knick v. Township of Scott (2019). Davis v. Bandemer (1986) held that claims of partisan gerrymandering were justiciable in federal court. It was overruled by Rucho v. Common Cause (2019).

After recounting these nine cases, Blackman writes that "I've heard it said that Chief Justice Burger could have done more on the Court if he had more conservative votes. I'm not so sure. Burger was in the majority of most of the overruled cases. … Justice Rehnquist, appointed around the same time, was often the lone voice of reason."

So let's look at this set of nine cases, with Blackman's argument in mind.

For this post, I consider what I understand to be Blackman's position—that The Chief should have driven the Supreme Court train in more conservative direction. Of course, that is not how The Chief would have resolved the case-specific issues before him in each particular case. But looking at these nine cases (as a reasonable sample of significant cases the Burger Court decided) reveals The Chief doing the best he could in difficult circumstances:

Roe v. Wade - The vote count in Roe was 7-2 to recognize a penumbral constitutional right to an abortion. The Chief could have dissented, making the vote 6-3—and sending control over assignment of the opinion to Justice William O. Douglas. That approach likely would have led to an even more sweeping opinion. Instead, The Chief gave the opinion to his friend, Justice Harry Blackmun. It has been reported that The Chief was surprised by the broad opinion that resulted, as he expected a narrower, medically-focused decision. And The Chief wrote a concurring opinion in Roe that tried to limit the majority decision's scope: "I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices …. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand." Years later, on June 11, 1986 (just six days before announcing his retirement), The Chief would directly dissent from Roe. In Thornburg v. American College of Obstetricians and Gynecologist, The Chief lamented how the limitations sketched out in his Roe concurrence were ignored and called for the Court to "reexamine Roe." The Chief's call would, of course, ultimately bear fruit in Dobbs. Bakke (1972) - Here the Supreme Court largely upheld affirmative action policies. But this was by a 5-4 vote, with Justice Powell's plurality the controlling decision. The Chief was part of the four-vote main (and partial) dissent written by Justice Stevens, joining Justice Rehnquist and Justice Stewart. Justice Stevens (joined by The Chief) argued that "[t]he meaning of the Title VI ban on exclusion is crystal clear: Race cannot be the basis of excluding anyone from a federally funded program." Here again, The Chief's view  of the proper result would ultimately become the majority view (under the Equal Protection Clause of the Constitution) in Students for Fair Admissions. Lemon v. Kurtzman (1971) - The Court vote to invalidate a Rhode Island statute providing aid to nonpublic schools was 8-0. The Chief could have been the lone dissenter. But that would have handed control of the opinion to Justice Hugo Black. Black joined Justice William O. Douglas in a sweeping concurring opinion rejecting any public aid to parochial schools—an approach that would might have become the majority opinion if The Chief had dissented. Moreover, although I'm not an expert on the doctrine, my understanding is that much of the problem with the Lemon test stemmed from the later endorsement-of-religion offshoot that was grafted onto the test after The Chief left the Court. A full assessment of The Chief's religious freedom jurisprudence would also need to consider his other important opinions, when he had more votes supporting religious claimants. In the next term, for example, The Chief wrote Wisconsin v. Yoder. Writing for six Justices, The Chief ruled that Amish parents' fundamental right to free exercise of religion outweighed the state's interest in educating their children. The Chief's opinion in Yoder continues to be influential to this day. Just last Term, the Court relied heavily on Yoder in its decision in Mahmoud v. Taylor. Writing for the majority, Justice Alito concluded that the burden on religion in that case (involving a public school's refusal to allow parents to opt their children out of LGBTQ+ inclusive storybooks) was of the "same character" as burden on religion  in Yoder.  Similarly, in 1983 case—Marsh v. Chambers—The Chief wrote for six Justices that government funding for legislative chaplains was constitutional, relying on the "unique history" of the United States. This was a proto-originalist decision that helped to lay the groundwork for future decisions focusing on original meaning. Abood (1977) - the vote count here was 9-0. A lone dissent by The Chief would have handed control of the Court's opinion to Justice Brennan. Instead, The Chief assigned the opinion to Justice Stewart, and joined Justice Powell's concurrence only in the judgment. (Justice Rehnquist, it should be noted, concurred and joined the majority opinion.) Chevron (1984) - the vote count here was 6-0. So a dissent by The Chief would not have changed the outcome. The Chief assigned the opinion to Justice Stevens. (Justice Rehnquist was recused.) The case is now mostly remembered for the deference paid to executive branch agency interpretations of the law. But the result in the case was to overturn a D.C. Circuit victory for the environmental group, the Natural Resources Defense Council. And Chevron only took shape and began to be used frequently after the 1987 Term (when The Chief had left the Court), as Professor Thomas Merrill has documented in a thorough article on the doctrine. Apodaca (1972) - Justice White upheld non-unanimous juries, in a plurality opinion joined by The Chief, Justice Blackman, and Justice Rehnquist. Apodaca was later overruled in Ramos (2020), over the strong dissent of Justice Alito, joined by Chief Justice Roberts, and (in large part) Justice Kagan. While Ramos might be viewed as a victory for originalism, I find much power in Justice Alito's dissent criticizing "a badly fractured majority cast[ing] aside an important and long-established decision with little regard for the enormous reliance the decision has engendered." Nevada v. Hall (1979) - The Chief joined dissents by Justice Blackmun and Justice Rehnquist, which Justice Thomas later tracked in overruling Hall. Williamson County (1985) - the vote count here was 7-1. The Chief handed the opinion over to Justice Blackmun, and joined it (along with Justice Rehnquist). The decision was overruled 34 years later in Knick. But the grounds Knick recited for overruling were "unanticipated consequences" that had revealed that the decision's requirements were "unworkable in practice." Davis v. Bandemer (1986) - this case involved a fractured decision, in which all the Justices concurred in part. The Chief concurred in the judgment with a short opinion (a "snapper" in his terms) emphasizing that partisan gerrymandering was not something that federal courts could readily redress. And he also joined Justice O'Connor's opinion concurring only in the judgment, along with Justice Rehnquist. The Chief's view would later be adopted in Rucho v. Common Cause, when Chief Justice Roberts held that "partisan gerrymandering claims present political questions beyond the reach of the federal courts."

Looking at these nine cases, I don't find much support for Josh Blackman's assertion that The Chief could have done more. For example, when Justice Rehnquist was on the Court with The Chief, the only time in these nine cases that The Chief differed from what Blackman calls the "lone voice of reason" was in Roe. But there The Chief's concurring vote kept the opinion away from Justice Douglas. And The Chief wrote what might be described as a "damage control" concurrence.

It remains an interesting issue whether a Chief Justice, convinced that the majority is wrong, should write a dissent that is the "voice of reason" or try to shape the majority in other ways. (For an illustration of how Chief Justice Rehnquist would later handle such a situation, take a look at his majority decision in Dickerson v. United States, reaffirming Miranda but on the narrowest possible ground.) In any event, as noted above, The Chief would later urge reexamination of Roe—providing strong criticism of Roe since he had originally  concurred in the decision.

I had the privilege of clerking for The Chief during his last Term on the Court, OT85. That Term, on ideologically charged cases, The Chief needed to secure not only the vote of Justice Rehnquist, but also three other justices. That meant lining up Justice White (appointed by JFK), Justice Powell (an institutionalist who had served as the past president for the ABA), and Justice O'Connor (famously known for her case-by-case approach and seemingly unprincipled balancing tests). That was no easy task. And, if The Chief lost one of those three justices to a fairly solid voting block of liberal justices (Justices Brennan, Marshall, Blackman, and Stevens), that handed off the case assignment to Justice Brennan.

Criticisms of The Chief for not doing more to advance originalist jurisprudence also fail to account for state of constitutional jurisprudence—and constitutional litigation—when The Chief served. The modern originalist approach was launched by Attorney General Ed Meese's in his famous speech on original intent to the ABA on July 9, 1985—around the time The Chief was preparing to retire from the Court. (For an enthralling account of Meese's efforts to advance originalism, I highly recommend co-blogger Steven Calabresi and Gary Lawson's recent book, The Meese Revolution: The Making of a Constitutional Moment (2025).) Meese's proposed theory of "original intent" was cogently refined by then-Judge Antonin Scalia in an address to Justice Department, which explained that the appropriate approach was to determine the Constitution's "original public meaning." As Calabresi and Lawson recount, Scalia delivered this important speech on Saturday, June 14, 1986—two days before Scalia was interviewed by President Reagan for the Supreme Court vacancy about to be created by The Chief's retirement. Given that originalist theory was so little formed at the time, The Chief (and his colleagues) rarely received sophisticated originalist briefing in important cases.

Blackman recognizes the importance of Chief Justice Burger's sense of timing on his retirement. The Chief's retirement in the summer of 1986 allowed President Reagan to promote William Rehnquist to Chief Justice, and to appoint Antonin Scalia to the Supreme Court. Following the 1986 election, the Democrats regained control of the Senate. And when Justice Powell resigned in 1987, the Democrats were able to "bork" President Reagan's preferred choice to fill the vacancy—setting the stage for compromise candidate Justice Kennedy, whose many weaknesses Blackman and others have recounted. If Justice Powell had followed The Chief's lead, Supreme Court history might have been much different.

In sum, a fair reading of this history is that The Chief set the stage for the later originalist revolution, even if he lacked the tools—and the votes—to lead the revolution himself.

Correction: I corrected an inaccurate reference to Justice Brennan being the next senior-most Justice in Roe to Justice Douglas.

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I was one of the panelists on this program, and much enjoyed it. (It's framed around some controversies in Texas, but we're talking about much bigger questions.) You'll see that I pretty sharply disagree with the other panelists—my remarks start at around 38:50—but that's what makes it fun. Here's the summary from the producers:

In recent months, Texas Governor Greg Abbott announced a ban on "Sharia law and Sharia compounds" in the state, citing longstanding principles that U.S. and Texas law take precedence over conflicting foreign law. This position is reflected in the 2017 American Laws for American Courts statute and in an Attorney General opinion affirming that contracts violating Texas public policy cannot be enforced.

These commitments were tested in a North Texas family law case, where an Islamic prenuptial agreement called for disputes to be resolved under religious law. The Texas Supreme Court ultimately stayed the arbitration order and ordered review of the original arbitration agreement for "validity and enforceability."

Other recent developments - including video accounts of a Houston imam calling for boycotts of certain businesses and reports of a proposed Muslim-exclusive residential community ("EPIC") - have prompted legislative responses such as HB 4211, which requires property transfer disclosures and ensures disputes are adjudicated under Texas and U.S. law.

How should courts weigh religious arbitration against constitutional and statutory protections? What legal tools exist to address disputes that implicate cultural or religious norms? How can Americans both respect religious diversity and uphold constitutional imperatives?

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That's the issue in Hagan v. Funk, decided last Monday by Chief Judge William L. Campbell, Jr. (M.D. Tenn.); here are the allegations from the Complaint:

Plaintiff was employed as a prosecutor for the Office of the District Attorney General of the 20th Judicial District of Tennessee ("DA's Office") when she received a jury summons. The DA's Office has an employee manual with a policy governing jury duty. The policy states:

Jury service is a responsibility of good citizenship, and all employees are expected to honor subpoenas for jury duty in any court. It is the office policy that employees serve rather than seek to be excused or exempted. Jury service is both a privilege and an obligation. Our court system is founded upon the right to a jury trial, and all citizens should participate in order to insure [sic] that this right is meaningful. Because jury service requires sacrifice, many citizens try to avoid this obligation. Our office should set a good example by our willingness to serve, and we should be positive about our justice system and encourage all citizens to take part.

Every employee is to notify their respective supervisor immediately upon the receipt of a jury notice so that arrangements can be made to cover the employee's office assignments. Attorneys should also bring the matter to the attention of the judge of their court where appropriate. On each day at the conclusion of jury service, the employee shall return to work at the office, unless it is after office hours. All jury fees belong to the employee and will not affect an employee's pay.

Upon receiving the jury summons, Plaintiff notified her supervisor as well as Defendant. Plaintiff appeared for jury service on July 15, 2024, for the case State of Tennessee v. Karlos Reynolds, 2023-B-1023. Plaintiff was juror number nine. Based on this number, she would presumptively serve on the jury unless either the Court removed her for cause or one of the parties used a peremptory challenge to remove her.

During voir dire, the trial court judge identified Plaintiff as "a lawyer in the court system" and Plaintiff stated that she knew "everyone here." During specific questioning by the prosecutor, Plaintiff stated, "I am employed as an Assistant District Attorney. So you all are my colleagues." Following voir dire, the prosecutor stated that Plaintiff should be struck for cause because she "works for Glenn Funk." Judge Chappell ruled that Plaintiff should remain on the jury because "she said she could be fair, and I don't think simply her employment with the Prosecutor's Office makes her unfit."

Each side used only two of its nine allotted peremptory strikes; none of the strikes was used to remove Plaintiff. Plaintiff then served as a member of the jury where she was selected as foreperson. The jury deliberated for less than one hour before returning a not guilty verdict on all counts.

Later that week, Plaintiff met with Defendant and two Deputy District Attorneys. Defendant berated Plaintiff for her jury service, expressed outrage that she was foreperson, and accused her of being unethical. Defendant specifically took issue with the jury's returning a verdict of "not guilty," stating that the "not guilty" verdict could strain her relationship with law enforcement officers at the Metro Nashville Police Department. Defendant told Plaintiff that she could not work as an attorney and needed to be "on leave." On Monday, July 22, 2024, Plaintiff was formally placed on leave and told not to come to the office….

Plaintiff claims Defendant demoted her, reassigned her to non-attorney work, removed her from courtroom work, placed her on leave, and berated her in front of her superiors and colleagues in retaliation for her for serving on a jury and for voting "not guilty" during her jury service….

The court allowed plaintiff's First Amendment claim to go forward, though note that the court just held that plaintiff had adequately pled the claim—the actual facts remain to be determined:

"Generally, the First Amendment protects a public employee's speech if: (1) the speech was on a matter of public concern, Connick v. Myers (1983); (2) the speech was not made pursuant to the employee's official duties, Garcetti v. Ceballos (2006); and, assuming the employee can satisfy the first two elements, (3) the employee's interest in speaking on a matter of public concern outweighs the employer's interest 'in promoting the efficiency of the public services it performs through its employees,' Pickering v. Bd. of Educ. (1968)."

Plaintiff claims Defendant retaliated against her based on her speech as a prospective juror during voir dire and as a juror in rendering a verdict of guilty in a criminal case for which her employer was the prosecutor. Defendant concedes that "an ADA is entitled to First Amendment protection in answering questions as a public employee empaneled in a jury pool and as a juror rendering a verdict." He argues, however, that Plaintiff's speech during her jury service was not protected speech because her interest in speaking does not outweigh Defendant's interest in managing its offices to ensure its "employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission."

Defendant's argument encompasses the second and third prongs of the test for protected speech. First, Defendant asserts that Plaintiff's speech in court as a private citizen summoned for jury duty was an "official communication" by an employee of the District Attorney's office. Even if there were a reasoned basis for this assertion (and the Court can think of none), a determination that Plaintiff's speech in connection with her jury service was pursuant to her official duties as an employee of the District Attorney's office would require the Court to construe the allegations in the complaint in a light most favorable to the Defendant, which is plainly not the standard on a motion to dismiss. Moreover, in making this assertion, Defendant fails to address the fact specific inquiry for determining whether speech is spoken as a private citizen or as an employee.

Defendant's next argument is that Plaintiff's interests in speaking on the matter of her juror qualifications and rendering a verdict do not outweigh the interests of the District Attorney's office in promoting the legal and ethical conduct of its employees. This argument is also inappropriate on a motion to dismiss. Not only would it require the Court to construe the allegations in the Complaint in a light favorable to the Defendant, consideration of Defendant's asserted interests in limiting employee speech on these matters necessitates factual determinations and considerations of matters outside the pleadings not appropriate at this stage in the litigation.

Perhaps recognizing that a motion to dismiss is not the proper vehicle for the Court to weigh the relative speech interests of the employer and employee, Defendant asks the Court to find as a matter of law that "an ADA is not protected by the First Amendment from her employer's scrutiny for failing to inform the court of the inherent conflict of interest created by her jury service when called to jury service in a criminal proceeding in the county in which she has sworn an oath of office to be an ADA." In support, Defendant points to the following authority: (1) Tennessee Rules of Professional Conduct concerning conflicts of interest with regard to representation of clients and disruption of a tribunal (T.R.P.C. 1.7(a)(2) and 3.5); (2) a decision from the Tennessee Court of Criminal Appeals which has since been overruled regarding disqualification of government attorneys in criminal matters (State v. Grooms, 2020 WL 9171956, at (Tenn. Ct. App. Nov. 25, 2020), overruled by State v. Eady, 685 S.W.3d 689 (Tenn. 2024)); and (3) Justice [O'Connor's] concurring opinion in Smith v. Phillips, 455 U.S. 209, 222 (1982), suggesting that if it is revealed post-trial that a juror is "an actual employee of the prosecuting agency" the Sixth Amendment right to an impartial jury would not allow a verdict to stand.

The Court declines to make such sweeping pronouncement concerning the relative speech interests of all district attorney employers vis-à-vis all assistant district attorneys in their employ. Not only is such a ruling not directly supported by the cited authority, as stated above, balancing these interests in the specific context of this case is not appropriate at the motion to dismiss stage, and making these fact specific determinations as to district attorneys and their employees writ large is unlikely ever to be appropriate.

{Throughout the motion to dismiss, Defendant either ignores or mischaracterizes the allegations in the complaint as stating that Plaintiff failed to notify the state trial court of her "conflict of interest" before serving on the jury when the complaint and trial transcript of the criminal court proceeding which is attached to the complaint clearly state that Plaintiff informed the trial court of her employment and that the trial judge considered whether it would be appropriate for Plaintiff to serve as a juror. This approach by Defendant is troubling, to say the least.} …

And the court also allowed plaintiff's claim to go forward for violation of Tenn. Code Ann. § 22-4-106(d), which provides, in relevant part:

(1) No employer shall discharge or in any manner discriminate against an employee for serving on jury duty if the employee, prior to taking time off, gives the required notice pursuant to subsection (a).

(2)(A) Any employee who is discharged, demoted or suspended because the employee has taken time off to serve on jury duty is entitled to reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer….

Plaintiff is represented by Christopher W. Smith, David Randolph Smith, and Dominick Randolph Smith of David Randolph Smith & Associates.

The post Did DA's Office Retaliate Against Prosecutor, When She Was Serving as Juror, for Voting to Acquit Defendant? appeared first on Reason.com.

From Sixth Circuit Judge John Bush's very interesting opinion Friday respecting denial of rehearing en banc in Yoder v. Bowen:

This case involves an as-applied challenge to a Michigan law (the drone statute) that makes it illegal to "us[e] an unmanned vehicle or unmanned device that uses aerodynamic forces to achieve flight"—i.e., a drone—while "tak[ing] game or fish." Drone Deer Recovery, a plaintiff here, offers a service where it tracks downed animals using drones and then posts the location of the animals' carcasses online so hunters can more easily find their kill. The plaintiffs allege that the drone statute violates their First Amendment rights because it (1) is a content-based speech restriction, (2) violates the speech-inputs doctrine, and (3) unconstitutionally restricts their ability to engage in inherently expressive conduct. The panel rejected all three arguments and determined that the statute survived intermediate scrutiny.

{We have referred to a type of protected speech as "speech inputs," but it goes by different names in different jurisdictions. The Tenth Circuit, for example, has referred to it as "the protected creation of speech," and the Supreme Court has referred to it as "[s]peech in aid of" protected speech.}

I write separately because I have concerns about the panel's reasoning related to the speech-inputs doctrine. The Supreme Court has indicated that "heightened scrutiny"— something more than O'Brien intermediate scrutiny—applies when the government seeks to ban the means to create speech. See Sorrell v. IMS Health Inc. (2011) (noting that a Vermont statute banning the sale of certain pharmaceutical data effectively banned certain entities from speaking with physicians and pharmaceutical companies and was therefore subject to "heightened scrutiny").

For example, if a State enacted a statute banning the ownership of pens and paper, the statute would likely violate the First Amendment under the speech-inputs doctrine because it would restrict the ability to express thoughts through handwriting. Here, drone-obtained information may be analogous to pens and paper because it provides what the plaintiffs allege is a critical input needed for Drone Deer Recovery's speech to hunters. But the panel declined to apply Sorrell's more rigorous level of review.

The panel's error may be understandable given the confused state of the speech-inputs doctrine following Sorrell. After all, that case is far from a model of clarity. The words "heightened scrutiny" have sometimes been considered synonymous with "intermediate scrutiny." But Sorrell also tells us that the statute at issue in that case "enact[ed] content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information." Content-based speech restrictions are normally subject to strict scrutiny. Meanwhile, Sorrell did not find the statute's content-based speech restriction to be dispositive and proceeds to apply Central Hudson's commercial speech test, which is an entirely different inquiry from strict or intermediate scrutiny….

Sorrell is also unclear in the degree to which a speech input needs to be restricted before the doctrine comes into play. On the one hand, it seems like banning all pens and paper would easily violate the doctrine because that would outlaw the handwritten word. By contrast, a restriction on the use of a specific chemical in printer ink might not because printer ink still remains readily available. But Sorrell does not give us any direction on how to distinguish between the two types of regulation.

And, as a third point of confusion, the Supreme Court has never clarified how exclusively dedicated to creating speech the input must be before it receives some level of scrutiny under the First Amendment. When technology may be employed for purposes other than the generation of speech, those other uses perhaps may attenuate the level of protection for speech associated with use of the technology. Is a drone a speech input? Is a microchip inside the drone that is vital to its functioning?

Sorrell leaves more questions than answers, and the panel only added to the confusion. The panel determined that drones are not speech inputs, and then applied intermediate scrutiny anyway. But if the drones are not speech inputs, then it's unclear why any level of scrutiny would apply

The panel seeks to distinguish this case from speech-inputs precedents because Drone Deer Recovery's speech is not political. But the alleged wrong from prohibiting drone usage does not depend on whether the speech is political. Rather, the constitutional violation from banning a speech input arises when the restriction effectively abolishes the speech altogether. It is one thing to say that business-related speech, once expressed, may have less First Amendment protection than political speech; it is quite another thing to deprive the speaker of the means for expressing its speech in the first place….

In Sorrell, the Supreme Court held that a Vermont statute "restrict[ing] the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors" was unconstitutional because it "imposed a restriction on access to information" that could be used "in aid of pharmaceutical marketing"—i.e., it limited access to a critical speech input for pharmaceutical marketing. That case involved a statute completely divorced from politics, yet the Court still applied the speech-inputs doctrine…. So the panel was mistaken to the extent that it sought to distinguish Sorrell based on the non-political nature of Drone Deer Recovery's speech.

{As an aside, I struggle to see how the panel's distinction between political speech and non-political speech would matter here, given that the drone statute seems to regulate political speech as well. The drone statute would appear to apply equally to political speech. For example, the law would also foil the speech of animal rights activists who want to track down felled game and use it to protest animal cruelty—a quintessential form of political speech.}

The panel also attempted to distinguish Sorrell because the law in that case was not content neutral, given that the Sorrell statute allowed prescribing information to be used for some purposes but not others. But the drone statute similarly restricts a speech input based on the content of its use. The law forbids employing drones to obtain and deliver the location of felled game. But the law allows drones to deliver any other kind of information. For example, the statute apparently does not prohibit using drones to obtain and deliver data about the number and types of trees, the location of trails, etc. The drone statute thus regulates the speech input based on the content of speech for which the information will be employed. This is a content-based regulation much like in Sorrell.

We thus must apply Sorrell to this case. But what is the standard that Sorrell requires us to apply? I believe, based on the speech-inputs doctrine, it may be a higher level of review than the panel applied.

The panel's rejection of the speech-inputs doctrine may portend a split between our circuit and the Fourth and Ninth Circuits. In an opinion that came down after the plaintiffs petitioned for rehearing en banc, the Ninth Circuit concluded that an ordinance banning observing sideshows (a form of reckless driving in an intersection) was unconstitutional because it inhibits "the process of creating a form of pure speech." Garcia v. Cnty. of Alameda (9th Cir. Sept. 4, 2025). The court explained that, even though observing a sideshow might be a restriction on conduct, it was entitled to First Amendment protection because it regulated "a predicate for … recording of those events," meaning that it essentially outlawed a speech-input. {The Supreme Court has held that newsgathering is protected under the First Amendment.} Meanwhile, the Fourth Circuit has held that a statute banning organizations from planting moles (i.e., undercover spies) in farms and slaughterhouses bans a speech input because it "prevents an undercover employee from publishing a critical article based on any notes she takes of documents or policies laid out in a breakroom."

The statutes in Garcia and PETA are a bit afield of the facts of this case, but the panel's reasoning may be difficult to square with those cases. If observing employees in a slaughterhouse or watching reckless drivers in an intersection are speech inputs governed by Sorrell, then it would appear that observing animals via a drone would also be such a speech input. To be sure, the panel might say PETA involved political speech because the plaintiff was an animal rights advocacy group. But the plaintiff in Garcia was a transportation reporter, and there is no indication from that case that he was engaged in political speech.

If this case began and ended as a hunting-with-drones precedent, it perhaps would not be worth delving so deeply into the panel's rationale for its decision. But I worry that the panel's opinion may be interpreted to diminish First Amendment protection more broadly, including for academics and journalists.

Consider how the panel's reasoning could be employed to diminish academic freedom. Many academic studies rely on recorded interviews. A State could theoretically enact a statute banning the recording of interviews between a healthcare provider and a patient. This prohibition would make it unlawful, for example, to use recorded interviews in a study examining whether psychologists can convince children to remember traumatic events that did not happen. Such a study could radically change the way we consider witness testimony in many criminal trials. And yet, employing reasoning similar to the panel's rationale here, a State's transparent attempt to stifle that research could be subject to mere O'Brien intermediate scrutiny because (1) a psychology paper is not political speech, and (2) the statute only restricts employment of a particular technology (a recording device) that can be analogized to the drone usage in this case.

The potential effects of the panel's reasoning could be similarly problematic for journalists. Consider a statute that bans audio or video recorded interviews altogether. If a journalist wanted to document, for example, eyewitness accounts of athletes who gambled on their own games, this statute would effectively ban that form of journalism that relates to a non-political topic. And yet, even though journalism (muckraking in particular) is one of the First Amendment's central concerns, a statute restricting these journalists' recordings would be subject only to O'Brien intermediate scrutiny simply because (1) the interview does not involve political speech and (2) the law did not ban the interview itself but only particular ways of recording the interview. Using the rationale advanced to defend the drone statute—that the drone statute only bans a particular technology to gather information but leaves in place traditional methods for tracking killed prey—one could argue that banning video and audio recordings of interviews is acceptable because the journalist can still use the traditional pen-and-paper method to memorialize those interviews.

These two hypotheticals cover academic research and journalism—areas that are supposed to receive the highest levels of First Amendment protection, even when they do not implicate political speech. See, e.g., Fla. Star v. B.J.F., 491 U.S. 524, 541 (1989) (applying strict scrutiny to statute limiting a journalist's ability to publish the name of a sexual assault victim); Keyishian v. Bd. of Regents (1967) ("Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment."). And yet, under the panel's reasoning, they may receive only O'Brien intermediate scrutiny—with significant consequences, indeed.

That said, although I have concerns about the panel's opinion, I do not think that this case is a viable candidate for rehearing en banc. The panel's reasoning stems from a difficult-to-interpret Supreme Court opinion, and we are powerless to modify the directives from a controlling Supreme Court opinion in any way. So all that is left to do is wait for further guidance from the Supreme Court.

I cannot blame the panel opinion for its attempt to sort through confusing Supreme Court precedent. After all, Sorrell appears to call for O'Brien intermediate scrutiny, strict scrutiny, and Central Hudson scrutiny, all at the same time. Thus, three people could theoretically argue in favor of each separate standard of review, and Sorrell would provide equally strong support for each position. But I am still concerned that the panel's reasoning in this case might cause problems down the road. Ultimately, I hope that the Supreme Court will give plenary consideration to this case or one like it to clarify the parameters of the speech-inputs doctrine.

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[What's on your mind?]

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