12/5/1933: The 21st Amendment is ratified.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
What’s on your mind?
Razzle Dazzle Racism
Brown, Milliken, and Judge Brown.
Today the Supreme Court decided the Texas redistricting case by a 6-3 vote. I'll get to my analysis later, but I have to cover some other ground first.
I recently read R. Shep Melnick's review of Michelle Adams's new book on Milliken v. Bradley. I was familiar with the Supreme Court's landmark decision that put an end to forced bussing. But I did not know much about the lower court litigation, which Adams covers in some detail.
Judge Stephen John Roth presided over the case. It seems that Judge Roth was initially skeptical of the claim that he could order children throughout Detroit to be bussed to faraway school. Bs Melnick relates, Judge Roth went through a "conversion" after a 41-day trial:
Support for urban/suburban busing came almost entirely from Judge Steven Roth, egged on by the white Detroiters who had been allowed to intervene in the case. As Adams and many others point out, Roth underwent a conversion in the 41-day trial. Originally skeptical of the NAACP's constitutional arguments, he became convinced that government actors had engaged in housing segregation that led to segregated schools.
Adams effectively reviews the housing evidence that had a profound impact on the judge. She says far less about the evidence that convinced him that using busing to eliminate predominantly Black schools would improve the educational opportunities of minority students. The evidence on housing was central to Roth's relatively uncontroversial liability finding. The evidence on education was crucial to the extraordinary remedy he fashioned after finding a constitutional violation.
Judge Roth later told a reporter, "We all got an education during the course of the trial. It opened my eyes."
Judge Roth became convinced that to enforce Brown v. Board of Education, he had to enter a remedial scheme that was unfathomable. This was not a conversion. It was an apotheosis: Judge Roth saw himself as a god who could remedy society's ills. The trial deified him.
This line from Judge Smith's dissent was directly on point:
There's the old joke: What's the difference between God and a federal district judge? Answer: God doesn't think he's a federal judge. Or a different version of that joke: An angel rushes to the head of the Heavenly Host and says, "We have a problem. God has delusions of grandeur." The head angel calmly replies, "What makes you say that?" The first angel whispers, "He's wearing his robe and keeps imagining he's a federal judge."
Well-managed trials, that tug on all of the right strings, can have a transformative effect on even the most sober-minded people. There is a reason effective trial lawyers can wrap juries around their fingers, and secure astronomical judgments. Indeed, there is a reason why sophisticated defense attorneys do everything in their power to keep cases away from juries. I don't think judges, when presiding over bench trials, are immune from this dynamic. Indeed, when district court judges afflicted by the god complex have unlimited remedial powers, they, like Judge Roth, can do just about anything.
One of my favorite Broadway musicals is Chicago. In the song Razzle Dazzle, defense attorney Billy Flynn, played by Richard Gere, explains how you can pull the wool over a jury's eyes and make them believe anything.
Give 'em the old razzle dazzle, razzle dazzle 'em
Give 'em an act with lots of flash in it
And the reaction will be passionate
Give 'em the old hocus-pocus, bead and feather 'em
How can they see with sequins in their eyes?
What if your hinges all are rusting?
What if, in fact, you're just disgusting?
Razzle dazzle them and they'll never catch wise
Civil rights attorneys have perfected the art of presenting their cases in the perfect sympathetic light. And the government can, at most, defend their work by pointing to pure partisanship or different standards or review.
Back to Judge Brown's decision. The Supreme Court's per curiam decision was fairly predictable. It should have been very clear to Judge Brown that his opinion "failed to honor the presumption of legislative good faith." And it should have been clearer that his opinion would not stand since the plaintiffs "did not produce a viable alternative map that met the State's avowedly partisan goals." Judge Brown's distinction--that a map was not needed at an interim stage--was never going to hold up. And it should have been crystal clear that Purcell would not allow this sort of relief in the middle of the primary process. But the mountains of evidence submitted by the plaintiffs let him look past those significant legal barriers.
Justice Kagan's dissent extols the length of the lower court proceedings:
Lawyer Hijinks in Laura Loomer's and Bill Maher's Deposition
The magistrate judge is not amused.
From today's decision by Magistrate Judge Phillip Lammens in Loomer v. Maher (M.D. Fla.) (the underlying case is a defamation lawsuit over Maher's saying President Trump "might be" "fucking" Loomer):
The matter is before the Court initially on Plaintiff Laura Loomer's motion for sanctions against Defendants Bill Maher and Home Box Office, Inc., and their counsel at Davis Wright Tremaine for their conduct during the discovery process…. [But] it is readily apparent that Mr. Klayman's conduct warrants attention that the Court cannot ignore—or use to simply offset the conduct of defense counsel….
[Plaintiff raises] arguments related to the conduct of Ms. Bolger (Defense counsel) at the depositions of Mr. Maher, Ms. Loomer, and HBO's 30(b)(6) witness, Nina Rosenstein. The Court has reviewed the video depositions of Mr. Maher (3.5+ hours) and Ms. Loomer (almost 6.0 hours) in their entirety, and the deposition excerpts cited by the parties. While the Court is concerned by the lapse in professionalism evidenced by Ms. Bolger, it is equally, if not more troubled, by Mr. Klayman's conduct. It appears that both attorneys allowed personal distaste (for the deponent and opposing counsel) to replace dispassionate legal representation. As Mr. Maher asked at his deposition, "Is this the way the law works?" Simply stated—no, it is not. The Court demands better from counsel….
Turning first to Mr. Maher's deposition, it was taken by Mr. Klayman on April 4, 2025, with Ms. Loomer in attendance. There is no question that Ms. Bolger was frustrated by Mr. Klayman's conduct. Mr. Klayman improperly made statements without asking Mr. Maher a question, asked harassing questions about Mr. Maher's religious beliefs and his private life, and spent considerable time questioning Mr. Maher about tweets from up to ten years ago that had nothing to do with Ms. Loomer or the litigation. At times, Mr. Klayman mischaracterized statements by Mr. Maher or interpreted them in ways that strained credulity. And Mr. Klayman even insinuated that Mr. Maher could not get an impartial trial in Ocala, asking if Mr. Maher knew that it was "the heart of the Bible Belt," that the jury would be composed of "very religious people," and that jurors and judges "reach decisions based upon their own personal experience [ ] and beliefs."
While Ms. Bolger made many legitimate and proper objections, at times she failed to state them concisely in a nonargumentative and nonsuggestive manner as required by Rule 30(c), Fed. R. Civ. P. Indeed, Ms. Bolger's objections often devolved into arguments with Mr. Klayman in which they bickered (with each other) in discourteous tones, made sarcastic comments, hurled insults, spoke over each other in raised voices, and offered inappropriate editorial commentary and legal arguments.. At one point, while disagreeing with Mr. Klayman about defamation law in Florida, Ms. Bolger taunted Mr. Klayman with a comment about his ongoing disciplinary issues—"You're about not to be [a lawyer], Mr. Klayman." Despite the ongoing conflict and inappropriate conduct throughout the entirety of the deposition, neither party sought to suspend the deposition or seek relief from the Court.
These same issues plagued Ms. Loomer's deposition, which was taken by Ms. Bolger on June 4, 2025. Counsel argued, made sardonic comments, hurled accusations, and spoke over each other in raised voices.
At times, Mr. Klayman resorted to name-calling. He called Ms. Bolger disrespectful and a "disgrace," a "very mean, nasty individual," and a "vicious nasty person." He asked how, as a woman, she could badger another woman. And he spoke to Ms. Bolger in a disdainful manner, saying things like "get off my back," and "[t]hank you, Your Honor. I didn't know that you were the judge."
Multi-Billion Dollar Corporation Can't Sue Inter-American Development Bank as a Pseudonymous "Doe Corporation"
From today's Doe Corp. 1 v. Inter-American Development Bank, decided by D.C. Circuit Judges Karen LeCraft Henderson, Robert Wilkins, and Florence Pan (I filed an amicus brief in the case on my own behalf, urging affirmance of the decision below; thanks to Notre Dame law student Aleah Schrock for all her work on that):
Appellants have not shown that the district court erred by utilizing the five factors set forth in In re Sealed Case (D.C. Cir. 2019), or by considering the risk of retaliatory physical or mental harm or the ages of the persons whose privacy interests are sought to be protected when considering their request to proceed pseudonymously. See In re Sealed Case (D.C. Cir. 2020) (considering each of the five factors when evaluating non-individual's request for pseudonymity). Although appellants contend that these factors are not relevant when, as here, non-individuals request pseudonymity, they have not established that only those factors that support a party's request should be considered, and their arguments in favor of that outcome find no support in this court's case law and run contrary to the principle that permission to litigate under a pseudonym is a "rare dispensation" that requires litigants to meet a correspondingly "weighty burden."
Appellants also do not demonstrate that the district court abused its discretion in concluding that they did not meet their burden to overcome the presumption of openness in judicial proceedings. Appellants have not shown that the district court's decision is an "extreme outlier" or that the district court failed to conduct any qualitative balancing of the factors, and their concerns regarding a potential chilling effect of the district court's decision do not demonstrate any abuse of discretion. Although appellants disagree with the district court's outcome, they do not demonstrate that the reasons given by the district court fail to reasonably support its conclusion.
Appellants also fail to show any abuse of discretion in the district court's conclusion that the factors concerning the risk of retaliatory harm and the nature of the party's claims supported disclosure of their identities. Appellants do not dispute that proceeding publicly in this case presents no risk of retaliatory physical or mental harm. Although appellants contend that the district court should have determined that they demonstrated a sufficient risk of retaliatory harm from potential lost business, appellants have forfeited this argument by not making it in the district court. And, given the "far-reaching consequences" of their claims, Doe v. Hill (D.C. Cir. 2025), appellants do not show that the district court abused its discretion in concluding that the nature of those claims and the relief sought supported disclosure of their identities.
Here's an excerpt from Chief Judge James Boasberg's initial decision denying pseudonymity:
Plaintiffs are corporate entities who have filed this lawsuit against the Inter-American Development Bank, claiming that the IDB has improperly initiated sanctions proceedings against them. Doe Corporations allege that those proceedings violate both Defendant's governing charter and its contracts with Plaintiffs. Concerned that revealing that they are the subjects of the IDB's sanctions proceedings would result in "reputational harm," "crater new business," and "jeopardize existing projects," Doe Corporations now move to proceed under pseudonyms….
Journal of Free Speech Law: "Gitlow as a Guide to Holmes," by Joseph Blocher
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law; other papers from that symposium will be published shortly.
The article is here; the Introduction:
The last First Amendment opinion ever written by free speech's first great judicial defender is often omitted from the pantheon of free speech cases. Of course there are exceptions, as scholars have explored how the Court's decision in Gitlow v. New York approached the issue of incorporation, its illustration of the "bad tendency" test, and what it shows about the sometimes-competing currents of First and Fourteenth Amendment doctrine at the time. But even the most thoughtful and thorough treatments of Justice Oliver Wendell Holmes' free speech jurisprudence have typically treated his dissent in Gitlow as "too compressed to be clear" or "better characterized as an example of Holmes' distinctive consciousness as a judge than as an attempt to forge a new path in First Amendment jurisprudence after Abrams [v. United States]."
The aim of this Essay is to argue that Holmes' dissent in Gitlow, brief as it is, provides a surprisingly comprehensive guide to some of the most important and consistent themes in his thought, and thus to the development of free speech law and American legal thought more broadly. That map emerges from careful parsing of the opinion's text—not only the famous-if-obscure declaration that "[e]very idea is an incitement," but the phrases that surround it. Close reading of Holmes' imaginative language is nothing new; entire free speech literatures have arisen around imagery like "the marketplace of ideas" and "falsely shouting fire in a theatre and causing a panic," to say nothing of doctrinal phrases like "clear and present danger." Such metaphors and aphorisms have been treated both as guides to understanding Holmes and as lodestars for the First Amendment. This Essay attempts the same for some of Gitlow's lesser-analyzed language.
The Supreme Court Should Hear Case Seeking to Overturn Gonzales v. Raich
Raich is one of the Court's worst federalism decisions, holding that Congress's power to regulate interstate commerce allows it to ban possession of marijuana that never crossed state lines, and was never sold in any market.
A recent petition for certiorari in the case of Canna Provisions, Inc. v. Bondi, asks the Supreme Court to overrule its terrible decision in Gonzales v. Raich (2005), which held that Congress' power to "regulate commerce… among the several states" gives it the authority to forbid the possession and distribution of medical marijuana that had never crossed state lines or even been sold in any market within a state. The Supreme Court should take the case, and make use of the opportunity to overrule Raich.
In my view, Raich is one of the Supreme Court's worst-ever federalism decisions. I laid out the reasons why in a 2006 article that was part of a Cornell Law School symposium about the ruling, published soon after it came down. I won't go over the issues in detail here, but I will note that I continue to believe the decision is awful for all the reasons I stated then. It took a constitutional amendment (the since-repealed 18th Amendment, that led to Prohibition) to give Congress the power to ban in-state production and distribution of alcohol. The same logic applies to marijuana. In-state possession and distribution of marijuana is not interstate commerce, and therefore not within the power of Congress, absent enactment of an appropriate constitutional amendment.
A prominent law professor once asked me if I would ever "get over" Raich. I said I would get over it on the day the Supreme Court overrules it.
The petition was filed by Boise Schiller Flexner, a prominent appellate firm, and the lead counsel is "superlawyer" David Boies. As he and his colleagues lay out in the cert petition, Raich fits the Court's criteria for overruling precedents, in so far as the case's reasoning is badly flawed, and it has not generated much in the way of strong "reliance" interests. If anything, reliance cuts the other way, as more and more states have legalized marijuana under their state laws, thus heightening conflict with continuing federal prohibition.
It's worth noting that eight of the nine justices who participated in the Raich decision have since left the Court. The only one who remains - Clarence Thomas - wrote a strong dissent in Raich, and has recently argued it should be overruled. As Justice Thomas pointed out in a statement regarding the Court's refusal to consider the 2021 Standing Akimbo case, "the Federal Government's current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government's blanket prohibition in Raich." Thomas's 2021 statement explains that the current federal marijuana prohibition regime includes all kinds of restrictions on enforcement of the federal law, and also creates strange anomalies such as that marijuana businesses that have been exempted from direct enforcement of the federal ban are nonetheless subject to criminal penalties for such things as hiring security guards to protect themselves.
I am not alone in urging the Court to take this case and overrule Raich. Amicus briefs filed by my colleagues at the Cato Institute (I am the Simon Chair in Constitutional Studies at Cato, but was not involved in this brief), Americans for Prosperity, and the Pacific Legal Foundation* (on behalf of one of their clients), urge the same thing.
These are all libertarian or conservative organizations. But, in recent years, the ideological valence of a number of constitutional federalism issues has shifted, in part in response to the first and second Trump Administration's many egregious actions. I wrote about a number of these in a 2019 Washington Post article covering such issues as sanctuary cities and conditional spending. These have become even more significant under Trump II, arising on issues such as immigration, and the administration's attempts to use conditional spending grants to expand federal control over universities. These developments have led many liberals to take a more favorable view of judicial enforcement of constitutional limits on federal power.
There has not - so far - been a comparable shift on the issue of limiting Commerce Clause authority. But perhaps the many awful abuses associated with the War on Drugs might help work a change. I outlined that possibility in my 2006 article on Raich, where I also suggested that judicial enforcement of federalism would be more successful and secure if it enjoyed broader cross-ideological support.
*PLF is also my wife's employer, but she was not involved in drafting the amicus brief in this case.
$2900 in Sanctions for AI Hallucinations in Filings by Self-Represented Litigant
From Monday's decision in Lothamer Tax Resolution, Inc. v. Kimmel, by Chief Judge Hala Jarbou (W.D. Mich.):
This order comes in response to pro se Defendant Paul Kimmel's pattern of submitting misleading filings to the Court. In an opinion issued August 29, 2025, the Court observed that one of Kimmel's filings contained the error-filled citations that are a hallmark of content generated by artificial intelligence (AI), and warned Kimmel that he must verify the accuracy of his citations in the future. In a subsequent order issued November 19, 2025, the Court noted that Kimmel's recent filings still cited dozens of misrepresented or fake cases, and ordered Kimmel to explain why he should not be sanctioned for this conduct. Kimmel responded on November 24, 2025, claiming that the inaccurate citations resulted from editing errors and stylistic mistakes rather than from AI. For the reasons explained below, the Court finds that Kimmel violated Rule 11 and will impose monetary sanctions in the amount of $2,900….
Kimmel acknowledges that "[s]everal citations or quotations in [his] Objection were inaccurate." He does not admit to using AI, though; he avers "that some of those mistakes arose from relying on secondary summaries or search-engine case pages rather than the official opinion." Ultimately, he characterizes his errors as "occasional technical mistakes [that] are unavoidable, but … never intentional." He states that he will take steps in the future to verify his citations and avoid misrepresenting cases. However, as explained below, the Court finds Kimmel's response lacking.
Defamation Lawsuit Over Peacock TV Docuseries "Paul T. Goldman" (Based on Book "Duplicity: A True Story of Crime and Deceit") Can Go Forward
From Doe v. Finkelman, decided yesterday by the Florida Court of Appeal by Judge Spencer Levine, joined by Judges Cory Ciklin and Alan Forst:
Appellant filed an amended complaint against the defendants/appellees for defamation per se and conspiracy to defame. According to the amended complaint, defendant Paul Finkelman wrote a book entitled Duplicity: A True Story of Crime and Deceit in which he accused appellant—his ex-wife—of various criminal acts, including prostitution and being the "madam" of a prostitution ring. Based on the book, the defendants created, produced, and published a "docuseries," entitled Paul T. Goldman, which was streamed and distributed on Peacock TV….
The series featured Finkelman as himself, using the alias "Paul T. Goldman." Finkelman revealed his true identity throughout the series. Appellant's amended complaint alleged that the series referred to appellant by a fictitious name, "Audrey Munson." Appellant alleged that she was "easily identifiable as the subject of the false and defamatory statements published by Defendants."
According to the amended complaint, the format of the show was a documentary that operated on "multiple levels." One level was the "real life" story of Finkelman as told by the actual persons involved in the events and by actors portraying the actual persons. The second level was a "making of" documentary where the audience was taken "behind the scenes" during filming and was "privy to parts of the actual creative process."
{The trial court found that the "docuseries" at issue was a single publication rather than multiple publications, and further that the series was not "of and concerning" appellant, and that the statements in the series were not capable of defamatory meaning. We disagree.}
Here's a quick summary of the long opinion:
Libel Lawsuit over Critical Race Theory Book That Accused Doctor of "Mass Hysterectomies"
Last year, Dr. Mahendra Amin prevailed in part in his lawsuit against NBC over certain accusations; from the June 26, 2024 decision in that case:
NBC published multiple reports about allegations that Plaintiff, Dr. Mahendra Amin, performed mass hysterectomies on female detainees at an Immigration and Customs Enforcement … facility …. NBC reported allegations that Dr. Amin performed hysterectomies that were unnecessary, unauthorized, or even botched. {Viewed in their entirety, the September 15, 2020 episodes of Deadline: White House, All In With Chris Hayes, and The Rachel Maddow Show accuse Plaintiff of performing mass hysterectomies on detainee women.} …
Multiple statements [made in the NBC coverage] are verifiably false. The undisputed evidence has established that: (1) there were no mass hysterectomies or high numbers of hysterectomies at the facility; (2) Dr. Amin performed only two hysterectomies on female detainees from the ICDC ….
Amin is also suing others who had made similar statements, and Tuesday he sued Sage Publications, an academic publisher. From the Complaint:
This Complaint arises from Defendant's December 4, 2024, publication of a book titled Slippery Eugenics: An Introduction to the Critical Studies of Race, Gender and Coloniality [by R. Sanchez-Rivera], and which includes a section containing multiple false and defamatory statements of and concerning a private figure, Dr. Mahendra Amin, M.D., which accuse him of performing fifty-seven (57) hysterectomies that were not medically necessary and were conducted without consent on immigrant women [detainees] ….
Anti-Stalking Injunction Requires More Than Just a Showing of "Being Weirded Out or Uncomfortable"
"[Appellants'] homemade signs talked about May being mental health awareness month, one referenced the movie One Flew Over the Cuckoo's Nest and included a photograph of actor Jack Nicholson, one mentioned perimenopause and empty nest syndrome, one said '[h]ere comes da judge' around the time that Appellee had a divorce hearing .... Another sign included the language '[h]ere's looking at you kid' and contained a photo of Humphrey Bogart."
In Heule v. Humphrey, decided yesterday by Florida Court of Appeal (First District) Chief Judge Timothy Osterhaus and Judges Joseph Lewis and Adam Tanenbaum, the trial court issued an injunction against Appellants:
Appellee alleged that Appellants, since October 2019, had placed numerous homemade signs in their windows and had hung a skeleton, which they would dress in outfits that corresponded to events in the lives of Appellee and her teenage daughter, on their front door. This began after Appellee's vehicle accidently rolled into Appellants' dining room, which resulted in physical damage to Appellants' home and emotional distress. Appellants kept a daily tally on one of their signs with the number of days that had elapsed since the accident.
Other homemade signs talked about May being mental health awareness month, one referenced the movie One Flew Over the Cuckoo's Nest and included a photograph of actor Jack Nicholson, one mentioned perimenopause and empty nest syndrome, one said "[h]ere comes da judge" around the time that Appellee had a divorce hearing, and one read, "Just because you are paranoid doesn't mean they are watching (or listening) sometimes a steak out is just a barbeque right?" Another sign included the language "[h]ere's looking at you kid" and contained a photo of Humphrey Bogart. Appellants dressed the skeleton in things like a straitjacket and a black dress.
After the trial court denied both petitions, Appellee filed a supplemental affidavit in which she claimed that Appellants' behavior had caused her substantial emotional distress. During the subsequent hearing, Appellee explained that she had moved from her property for a period of approximately three years after the accident but returned in July 2023. She testified about the signs and the skeletons as well as Appellants' installation of some sort of solar device. She stated, "Whether it's listening I'm not really sure." She also testified about how difficult it had been for her to see Appellants' signs and knowing that her daughter, who claimed to have had nightmares about Appellants, was affected by them. She described one verbal altercation she had with Appellant Frank Heule over the fence that separated their properties.
Appellee's daughter testified that she had never spoken to either of Appellants, and she could give no example of a time when something she had said to either her mother or a friend became the subject of one of Appellants' "displays." Appellant Frank Heule testified that he and his wife posted the signs and skeletons in response to things they heard about in the news. He claimed to have pointed a camera down his driveway, not at Appellee's home. Appellant Judy Heule testified about the distress that the accident with Appellee's vehicle had caused her and her husband, about how the couple chooses to "put [their] thoughts out there," and about how she had looked up Appellee's name in court records.
Today in Supreme Court History: December 4, 1933
12/4/1933: Nebbia v. New York argued.
Open Thread
What’s on your mind?
No Pseudonymity in Crypto Scam Case, Despite Alleged Death Threat Against Plaintiff
From today's order by Magistrate Judge Kathryn Starnella in Y.S. v. Doe (D. Colo.):
This case involves a cryptocurrency transaction wherein Plaintiff transferred approximately $100,000.00 in digital currency to various unknown individuals, who allegedly later blocked Plaintiff's requested withdrawals and absconded with the remaining funds….
"Lawsuits are public events." "Courts are public institutions which exist for the public to serve the public interest" and "secret court proceedings are anathema to a free society." Therefore, "[o]rdinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials." The Federal Rules of Civil Procedure contemplate the naming of the parties. Rule 10(a) requires that a complaint "name all the parties," and Rule 17(a) requires the prosecution of an action "in the name of the real party in interest." …
Plaintiff asks the Court to proceed pseudonymously in this litigation because he received a death threat from an unidentified individual who is, at least in part, allegedly responsible for the underlying cryptocurrency scam. The text message exchange indicates this individual told Plaintiff, "I'm going to send a hitman after you!" and that "[he] just contacted the hitman, [the hitman] checked [Plaintiff's] address" and the hitman would "find [Plaintiff] before 12 o'clock tomorrow[.]" The individual further stated the hitman would kill Plaintiff, and informed Plaintiff he knew his home address. This exchange occurred after Plaintiff confronted the individual about the alleged fraudulent crypto scheme that gives rise to this suit…
Fourth Circuit (2-1) Upholds Ban on Teaching Any Person How to Make or Use Explosives While "Knowing" Such Person's Bad Intentions
From today's Fourth Circuit opinion in U.S. v. Arthur by Fourth Circuit Judge Steven Agee, joined by District Judge Roderick Young (E.D. Va.), the facts (though defendant's main challenge relates to the facial coverage of the statute):
Arthur [through his company, Tackleberry Solutions, offered] … "training," with the goal of "help[ing] the average person to be able to defend themselves" against "a tyrannical government of our own or an invading tyrannical government." He published videos and sold manuals online with titles including "Fatal Funnels, Wartime Tactics, Repelling the Assault," and "Quick Reaction Force, Modern Day Minutemen, Improvised Explosives." …
The FBI began investigating Arthur following a fatal incident in June 2020 involving one of his customers, Joshua Blessed. While searching Blessed's home in Richmond, Virginia, the FBI found fourteen live pipe bombs that were identical to those described in Arthur's manuals, as well as six manuals that he wrote.
Shortly thereafter, the FBI had a confidential informant—"Buckshot"—contact Arthur for training…. Eventually, Arthur invited Buckshot to join him for in-person training, for which Buckshot would be charged a fee. Buckshot accepted his invitation and, upon his arrival, explained to Arthur that "[the] ATF's been to my house…. [T]hey're probably coming back…. [W]hen they do, I want to be ready." … Arthur spent the next three hours teaching him how to fortify his residence against the returning federal agents.
[Among other things, Arthur] suggested mounting cans of Tannerite {a commercially available explosive, commonly used to make exploding targets for marksmanship purposes} around the property that could be detonated with a rifle shot. In addition to this "perimeter defense," Arthur suggested that it "wouldn't be a bad idea" for Buckshot to "put[ ] some [improvised explosive devices (IEDs)] right up around the doors [of the house]." He noted that he kept such an IED on his front porch.
Arthur also suggested "a setup called the Spiderweb," which he described as "a freaking death box." The "Spiderweb" involved blocking most entrances to Buckshot's house and then placing remotely operated explosives near the remaining entrances, along with a "sentry gun" that could be remotely fired. Arthur even went so far as to offer to "help [Buckshot] design [and] build it," and later showed Buckshot how to use a lightbulb to make a detonator ….Buckshot paid Arthur for the training, and the two agreed to stay in contact.
The majority concluded that the speech banned by the statute "fall[s] largely within one of the 'well-defined and narrowly limited classes of [unprotected] speech': speech integral to criminal conduct," because it was tantamount to aiding and abetting crime (rather than being protected "abstract advocacy" of crime "contemplated in [cases such as] Brandenburg v. Ohio):
Demand Justice Targets Democrats Over Judicial Nominees
The progressive advocacy group thinks voting for any Trump judicial nominees is inexcusable.
The New York Times reports that Demand Justice, a progressive activist group that has previously called for Democrats to expand the size of the Supreme Court, will be running ads against Democratic Senators who have voted in favor of some Trump judicial nominees.
The ads, part of an initial $1 million campaign which will begin to air on television and appear online on Wednesday, make the case that none of Mr. Trump's judicial appointments deserve bipartisan support because they are putting loyalty to the president above the Constitution.
The evidence that Demand Justice cites for that claim is that none of Mr. Trump's appointments to lifetime court seats have said in written answers to the Senate that Mr. Trump lost the 2020 election or that the attack on the Capitol on Jan. 6, 2021, amounted to an insurrection.
The three senators being targeted with the initial ad campaign are John Fetterman of Pennsylvania, Maggie Hassan of New Hampshire and Angus King of Maine, who is an independent but caucuses with Democrats. Notably, none of three are up for re-election in 2026. All are moderates and among the group who voted to end the government shutdown last month. . . .
Mr. Fetterman has voted to confirm one judge, Ms. Hassan has voted for three and Mr. King has voted for four, the group said.
According to the story, another progressive advocacy group (MoveOn) will also begin pressing Senate Democrats to vote against all of President Trump's judicial nominees.
The apparent aim of these campaigns is not to prevent the confirmation of any judges (as judicial nominees can be--and largely have been--confirmed on party-line votes), nor is it to punish Democratic Senators facing re-election. It is apparently designed merely to ensure that Democrats adopt party-line opposition to Trump's nominees.
If You Can Afford ChatGPT, You Can Afford Sanctions for Filing Motions with ChatGPT Hallucinations
From Jarrus v. Governor, decided yesterday by Judge F. Kay Behm (E.D. Mich.):
The court is cognizant that imposing a monetary sanction on plaintiffs who qualify for IFP status [based on inability to pay filing fees -EV] may be ineffective. However, the court also ordered Plaintiffs to explain how much, per month, they spend on "AI" subscriptions per month. Plaintiff Michael Jarrus explained that he pays approximately $20 per month in a subscription to "ChatGPT Plus." Over the course of 12 months, the evidence suggests that Plaintiff Michael Jarrus is at least able to afford a Chat GPT subscription of about $240. Absent proof that a monetary sanction will prove impossible to pay, the court will enter sanctions sufficient to deter similar conduct in the future….
Consistent with Magistrate Judge Patti's warning that each AI citation might incur a cost of $200 per citation, the court adopts that amount and imposes a fine of $300 per Plaintiff (a total of $600) for three misrepresented, AI-generated citations. Each Plaintiff [Michael Jarrus and his mother] shall, individually, be responsible for paying $300. These fines are due to the Clerk of Court and shall be paid in full by February 2, 2026. Failure to pay these amounts may result in dismissal of this action in its entirety or, if one Plaintiff pays their fine but not the other, of the nonpaying Plaintiff's claims for failure to comply….
If Plaintiffs file any future briefing in this case with even a single misrepresented, misquoted, or fictitious case that is caused by the use of generative "AI", this court will strongly consider any recommendation to dismiss this case for bad faith failure to comply with court orders, or revocation of Plaintiffs' IFP status, or in the alternative, it would not be clearly erroneous for the Magistrate Judge to strike or otherwise refuse to consider the merits of an entire briefing for the inclusion of a misrepresented, misquoted, or fictitious case.
More on the circumstances that led the court to be especially exercised here:
David Lat Interviews Pa. S. Ct. Justice David Wecht
A very interesting interview, on David Lat's Original Jurisdiction substack (for those who like text) and podcast (for those who prefer audio). An excerpt:
I recently noticed that although I've interviewed more than a dozen current and former judges, only two have sat on state courts (and by the time I interviewed them, those judges—Rolando Acosta and Debra Wong Yang—had left the bench). Put another way, I have not, until today, hosted a sitting state-court judge—a considerable omission, considering the significance of state courts. As noted by the National Center for State Courts, "State courts play a critical role in our democracy, handling about 96 percent of all legal cases in the United States."
I set out to remedy this gap—and was delighted when Justice David Wecht, a longtime friend, agreed to join me. He's a timely guest: last month, he and two of his colleagues were reelected to the Pennsylvania Supreme Court, for which I named them Judges of the Week. Why? Their court is one of the most important state courts in the country—for reasons I discussed with Justice Wecht on the episode.
In our conversation, we also covered the justice's interesting path to the Pennsylvania high court; why he believes young (and not-so-young) lawyers should get involved with their communities; certain unique features of the Pennsylvania Constitution, as well as its relationship to the U.S. Constitution; and, of course, his recent reelection to the Pennsylvania Supreme Court….
