The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Politics

2-1 Ninth Circuit Decision in Suit Against Airline Brought by White Father Traveling with Black Adopted Son

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From DelVechhia v. Frontier Airlines, Inc., decided Tuesday by the Ninth Circuit, in an opinion by Judges Michael Daily Hawkins and Johnnie Rawlinson:

[1.] Peter DelVecchia, a White man, and his adopted son A.D., who is Black, sued Frontier Airlines, Rex Shupe (a Frontier pilot), and Scott Warren (a Frontier flight attendant) for racial discrimination under 42 U.S.C. § 1981….

Plaintiffs have produced sufficient evidence of racial discrimination under § 1981 to survive summary judgment. A jury could conclude that the decision to separate plaintiffs during the flight arose from the flight attendants' disbelief that the plaintiffs were related given their different races, and that the flight attendants more generally viewed plaintiffs with suspicion because they were of different races.

Frontier points to the fact that one flight attendant said she witnessed Peter caressing A.D.'s face in an unusual manner, as well as Warren's report that he had seen Peter with his hand on A.D.'s crotch while the pair were asleep. But as to the former, a jury could conclude that the alleged caressing was appropriate behavior as between a parent and child of A.D.'s age, and that the reason it raised suspicion was because of the plaintiffs' races. In addition, no other person saw Peter with his hand on A.D.'s crotch, including the passenger seated in the same row, so that issue depends on Warren's credibility as a witness.

In addition, after the flight landed, one flight attendant mentioned a human trafficking class and the fact that plaintiffs have different races when discussing the incident with police on the ground. On this record, a reasonable jury could conclude that Frontier's decision to separate plaintiffs during the flight was based on racial biases and denied plaintiffs the equal right to contracted-for services based on race….

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Birthright Citizenship

The Original Meaning of Birthright Citizenship

Problems ahead for the Trump administration

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The Harvard Journal of Law and Public Policy has just published a symposium issue on the birthright citizenship debate. The focus of those contributions is on the original meaning of birthright citizenship in the United States and in the Fourteenth Amendment. Contributors include Ilan Wurman, Gerard Magliocca, and me. I am grateful to the heroic efforts of the editors at the journal for getting this issue ready and out in such a timely manner.

My piece -- By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States -- focuses on the content, scope, and qualifications of the common law rule of birthright citizenship as it developed in England and was carried into the United States and eventually embodied in the text of the Fourteenth Amendment. In doing so, it reaffirms the traditional view that birthright citizenship would extend to children of unauthorized aliens born in the United States and critiques revisionist theories old (Eastman) and new (Wurman, Lash).

From the introduction to the paper:

The conventional wisdom is right, and the Executive Order is wrong. Children born within the territory of the United States are natural-born citizens except under very narrow exceptions. Those historically recognized exceptions do not include the case of unauthorized aliens, and there is nothing about the logic of those exceptions that make them analogous to the modern situation of unauthorized aliens.

This Article reinforces the traditional view of the narrow exceptions to birthright citizenship by reconsidering the common law and statutory precursors that the constitutional language of the Fourteenth Amendment was understood to recognize and entrench. In particular, it pushes back against the new, revisionist view that alien parents must owe a robust form of allegiance to the United States and be members of the polity in order for their infants born within the United States to receive the benefit of birthright citizenship. This is a misreading—and indeed a reversal—of the common law rule that the Fourteenth Amendment embodies.

You can read the whole thing here.

The Supreme Court will hear oral arguments on Trump's executive order excluding birthright citizenship to children of unauthorized aliens and temporary visitors on April 1.

 

What Happens If A Religion Precludes A Person From Supporting Zionism?

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The anti-semitism maelstrom on the right continues to swirl faster by the day. And, in what has become a familiar posture, I keep getting stuck in the eye of the storm. I have come to regret my participation in the National Conservatism Conference and had to resign from the Heritage Foundation. Both of those entities have not taken the needed steps to distance themselves from the growing tides of antisemitism on the right. Now, another one of my affiliations has been swept up. 

On Monday, February 8, the White House Religious Liberty Commission held a public meeting in Washington, D.C. The theme of this session was anti-semitism. I am on the legal advisory board of the Commission. Though I was not able to attend, I played a small role in the planning process. When this commission was formed last year, I could not have fathomed how the ecosystem on the right would radically change. I now think the Carlson-Roberts exchange will come to be seen as the moment the dam broke.

The meeting garnered attention because Carrie Prejean Boller, a commissioner, asserted that her Catholic faith is incompatible with Zionism. She said, "Catholics do not embrace Zionism, just so you know." You can see the fireworks around the 1:30:00 mark at C-SPAN. I don't profess any expertise on this point. Fellow commissioner Ryan Anderson, who is a leading Catholic intellectual, argued that Boller's position is wrong as a matter of doctrine. He read from Second Vatican Council's Nostra aetate and Popes John Paul II and Benedict XVI. I found this article by EWTN to be extremely insightful:

Catholic teaching does not explicitly oppose Zionism, the movement supporting Jewish self‑determination in a homeland in Israel. Israel is seen as God's chosen people through whom God revealed himself and prepared the way for the coming of Jesus Christ. The Catholic Church universally condemns antisemitism. The Church recognizes Israel's fundamental right to exist.

But let's not fight the hypothetical. Let's assume there is a religion that rejects the modern conception of Zionism. In other words, the person firmly believes it is a mortal sin for the modern Jewish state to exist in Israel. They believe the world will suffer if Israel is allowed to exist. Think of a group like the Westboro Baptists. Moreover, this religion teaches that only one people--the Jewish people--are unable to have a homeland in the biblical land of Israel. Other religions can have their own states--even in the Holy Land--just not the Jews. The prophecy is silent about Muslim, Christian, or Hindu states. Further, let's assume that this belief is sincerely held. (I am skeptical that all of these assumptions can ever be true, but go with it for now.) To make things simple, we will call this faith the Church of Anti-Zionism.

How should a proponent of religious liberty approach this issue? And let's use a familiar hypothetical. A baker in Colorado is a devout member of the Church of Anti-Zionism. A Jewish customer walks into his shop, and asks for a cake to celebrate Yom Ha'atzmaut, Israeli Independence Day. The cake will include an outline of the map of Israel with the present-day boundaries, an Israeli flag, and figures of rabbis praying at the Western Wall. The baker refuses to bake the cake. He will make other Jewish-related cakes. For example, he will make a Bar Mitzvah cake or a cake for a Jewish wedding. Just nothing about the modern state of Israel. Indeed, the baker would make a cake depicting Ancient Israel before the crucifixion, but no representation of a Jewish state after. The customer brings suit under the Colorado public accommodations law. The baker seeks an exemption from the public accommodations law on Free Exercise grounds. (To simplify the hypothetical, the baker does not bring Free Speech claims, and as we all know, Colorado lacks a RFRA.)

What happens? Here, the baker's religion precludes any support of the modern Jewish state in Israel. Does a sincerely held belief in the Church of Anti-Zionism warrant an exemption? Can this case be materially distinguished from the claim brought by Jack Phillips of the Masterpiece Cakeshop? (Forget for a moment how the Court punted on the issue based on findings of animus.)

Throughout this hypothetical, I have repeatedly assumed that this belief is sincerely held. Asserting sincerity in the context of anti-semitism will be very difficult. Why? There is always a double-standard. Anti-Zionists assert that one, and only one people are not entitled to a religious homeland: the Jews. Catholics can have a religious country and Muslims can have a religious country and Hindus can have a religious country, but not the Jews. But under my hypothetical, the opposition to Zionism is premised on a specific religious teaching concerning the Jewish people, and their biblical claim to the holy land. The Church of Anti-Zionism has no teachings at all concerning these other faiths. Here, the double standard argument would not work.

Still, I think such a religious claim will be so gerrymandered to address a particular problem that it is unlikely to ever pass the sincerity prong. I see this faith as akin to the church of marijuana or the church of abortion, or some such gospel of convenience. Jack Philips's beliefs on marriage date from immemorial. The Church of Anti-Zionism would have a more recent vintage, and seems conjured to address a political point.

It should be simple enough for Catholics to explain why Boller (who apparently became a Catholic less than a year ago) is wrong on the theology. I understand it is also problematic for one person--especially someone with no formal training--to assert what the teachings of the Catholic Church are.

There is great irony that the rejection of a single religion's right to have a homeland would itself be a religious belief. Boller's testimony was just a test run. My cynical take is that the views advanced by Boller and others are not religious at all. But that analysis merely delays an inevitable reckoning. I think people on the woke right will increasingly dress up anti-semitism in the garb of religious liberty, in the same way that people on the woke left dress up anti-semitism in the garb of political ideology. There is always a reason to blame the Jews. 

For now, religious leaders who are experts in doctrine need to speak up, and do so loudly, to prevent their faiths from being hijacked down a road we have sadly traveled far too many times.

Religion and the Law

Pro-Palestinian Protesters' Religious Beliefs Don't Preclude Trespass Prosecution

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From Hubersberger v. State, decided yesterday by Arizona Court of Appeals (Division 2) Judge Eppich, joined by Judge Vásquez and Chief Judge Staring:

In November 2023, Appellants, motivated by their sincerely held religious beliefs, participated in a protest against Raytheon because of its role as a weapons supplier to Israel and the bombings occurring in Gaza. Appellants' demonstration occurred on private property, and their stated purpose was to disrupt Raytheon's daily operations by blocking Raytheon workers from entering the facility. The morning of the protest, Pima County Sheriff's deputies arrived and informed Appellants that they were trespassing. Appellants refused to move, and they were arrested….

Appellants moved to dismiss the [criminal trespass] complaints against them pursuant to FERA [the Arizona Free Exercise of Religion Act], arguing that because their protest was motivated by their religious faith, their arrest and prosecution substantially burdened their free exercise of religion….

FERA protects Arizonans' fundamental right to freely exercise their religion without undue government interference "even if laws, rules or other government actions are facially neutral." Under FERA, the government cannot substantially burden a person's exercise of religion unless it demonstrates that the burden both (1) furthers a compelling government interest and (2) is the least restrictive means of furthering that interest. This statute may be asserted in a judicial proceeding as a claim or a defense. It parallels the federal Religious Freedom Restoration Act (RFRA).

Appellants do not dispute on appeal that the government had a compelling interest to protect the peace and Raytheon's private property rights. We therefore only address the second prong of the FERA analysis: whether the arrest and prosecution of Appellants was the least restrictive means in which the government could have furthered its interests in this case…. To show it used the least restrictive means to further its interest, the state need not prove that the means used were the least restrictive means "conceivable," only that it used the least restrictive means available and that any proposed alternative is "ineffective or impractical."

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Preemption

Federal Court Blocks California Ban on Masked Federal Law Enforcement, Because the Ban Exempts State Officials

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From U.S. v. California, decided yesterday by Judge Christina Snyder (C.D. Cal.):

"A state law or regulation impermissibly discriminates against the federal government if it treats a state entity more favorably than it treats a comparable federal entity." Furthermore, the Ninth Circuit has held that a state law may not "single[] out" the federal government for greater burdens "than that which applies elsewhere in the State," even where the statute seeks to address a specific harm controlled by the federal government.

The No Secret Police Act's facial covering prohibition applies to "law enforcement officers," who are defined as any "peace officer, as defined in Section 830 [of the Cal. Penal Code], employed by a city, county, or other local agency as well as any officer or agent of a federal law enforcement agency or any law enforcement agency of another state or any person acting on behalf of a federal law enforcement agency or law enforcement agency of another state." This definition does not "single out" the federal government because it also applies to local law enforcement officers and law enforcement officers for states other than California. However, it excludes California state law enforcement officers, such as California Highway Patrol officers.

In evaluating the government's unlawful discrimination claim, it is critical that the Court compare similarly situated federal and state actors. "So if the State defines the favored class by reference to job responsibilities, a similarly situated federal worker will be one who performs comparable duties." The Court is not persuaded by California's arguments that state law enforcement officers are not similarly situated to federal law enforcement officers. First, California concedes that some state law enforcement officers perform similar law enforcement functions to federal officers, including the types of interactions with the public that the facial covering prohibition generally targets.

Second, those state law enforcement officers are not differently situated merely because state law enforcement officers have not recently engaged in "large-scale operations while wearing facial coverings," like some federal law enforcement officers. While the Act may be a direct response to recent federal law enforcement practices, the Act's text plainly addresses the harms caused by the use of facial coverings by "law enforcement" generally during enforcement activities. The Act, therefore, does not directly regulate federal functions or target federal practices but rather generally applies to law enforcement officers in California. However, the Act treats federal law enforcement officers differently than similarly situated state law enforcement officers.

Accordingly, the Court finds that the United States is likely to succeed on the merits of its claim that the facial covering prohibition of the No Secret Police Act unlawfully discriminates against the federal government in violation of the intergovernmental immunity doctrine.

{At the hearing, counsel for the United States acknowledged that the No Secret Police Act would not be unlawfully discriminatory if it was amended to apply to all law enforcement officers in California.}

The federal government also argued that the law was independently invalid because it unduly interfered with federal law enforcement­; this argument, if accepted, would have applied even for a law that was amended to include state officers as well. But the court rejected this argument, both as to the masking ban and a separate law that generally required law enforcement officials to visibly display their agency identification and a name or badge number. Indeed, since the identification display requirement applied to all officials and thus wasn't discriminatory, the court held the requirement was likely constitutional:

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New in Civitas: Two Hails For The Chief's NDA

"Press conferences would let the American people hear the justices in their own words. And in doing so, the Court would relieve pressure and help to clamp down on leaks."

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Last week I wrote about Jodi Kantor's latest report that Chief Justice Roberts requires Court staff (but probably not the Justices) to sign an non-disclosure agreement. I think this is a good step, but I am skeptical of how helpful it would be. Indeed, even after these agreements have been signed, the New York Times continues to write about leaks.

My latest essay for Civitas Outlook offers a different proposal to address the phenomenon of leaks:

There is a better way: the more the Court opens up, the less need there will be for disclosures. Instead of trying to futilely plug the dam to stop leaks, the Court should release a safety valve. The justices can start by holding regular press conferences. . . . In an ideal world, there would be no need for the justices or their surrogates to leak information to the press. But in the real world, this need exists. In my view, press conferences could be a vehicle to relieve some of that pressure. The justices would not disclose confidential information about the Court, but they could address lingering concerns and perhaps reduce the incentives to leak further.

As they say, read the whole thing. I admit this idea may seem crazy at first blush, but press conferences would serve purposes for both the Justices and the public.

Here is my conclusion:

Who will watch the watchmen? If anything, these press conferences would give the justices a chance to forcefully push back against the unfair attacks on them. This task usually falls to surrogates. Reporters are also far better at asking questions than answering them. I routinely contact reporters who err, and the most common response is somewhere between denial and indignation. On balance, these press conferences would let the American people hear the justices in their own words. And in doing so, the Court would relieve pressure and help to clamp down on leaks. To use another metaphor, perhaps the best remedy for the so-called "shadow" docket is sunlight.

This piece is part of a broader series of works on potential reforms the Court might take that would not exclusively benefit either side of the aisle.

Immigration

My House Judiciary Subcommittee Testimony Against the "Preserving a Sharia-Free America Act"

I will be testifying against this proposed legislation - which would authorize exclusion or deportation of all or most non-citizen Muslim immigrants.

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Tomorrow, I will be testifying against the proposed "Preserving a Sharia-Free America Act" at a hearing before the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government.  My written testimony, already submitted to the Subcommittee is available here. Here is an excerpt from the Introduction, summarizing my testimony:

I am grateful for the opportunity to address some of the important issues raised by the proposed "Preserving a Sharia-Free America Act." My conclusions about this bill are clear and unequivocal: It is manifestly unconstitutional, in violation of the First Amendment. In addition, the vast majority of immigrant adherents of Sharia law – a category that includes all or most Muslims – pose no threat and there is no good reason to bar them from the United States.

The proposed legislation states that "Any alien in the United States found to be an adherent of Sharia law by the Secretary of State, Secretary of Homeland Security, or Attorney General shall have any immigration benefit, immigration relief, or visa revoked, be considered inadmissible or deportable, and shall be removed from the United States." This provision amounts to blatant discrimination on the basis of religious belief. As such, it violates both the Free Speech Clause and the Free Exercise Clause of the First Amendment.

In addition, expelling virtually all Muslim immigrants would needlessly harm many thousands of people and is not necessary to combat terrorism or any other threat to the United States. Far from seeking to undermine America's liberal democratic values, most Muslim immigrants – like those of other faiths – have come precisely because of those values. If enacted, the legislation would harm national security by playing into the hands of radical Islamists and terrorists.

The rest of the testimony covers the constitutional and policy issues in more detail, including explaining why there is no immigration exception to the First Amendment which allows exclusion and deportation of immigrants on the basis of their speech and religious beliefs. It also explains why discrimination on on the basis of religion is unconstitutional even with respect to rights and government benefits that are not themselves constitutional rights. These points are supported by Supreme Court precedents backed by conservative justices.

Free Speech

Allegedly Tortious Disclosure of Candidate's Sexual Assault Allegations in Judicial Campaign

"Defendant Cline also showed former Defendant Joshua Woolsey [whose wife was then running for judge against plaintiff] an unredacted copy of the [sexual assault police report filed by the plaintiff] ... after Joshua Woolsey made a public records request for all records pertaining to Plaintiff."

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From Judge Brian Davis (M.D. Fla.) in Shorstein v. Hardwick (M.D. Fla.):

The facts giving rise to this case follow Plaintiff's claim of being sexually battered on April 20, 2018. Plaintiff was participating in her bachelorette party with dinner and drinks at several local bars. As her friends trickled away, Plaintiff remained and continued drinking alcohol. She could not recall the circumstances completely, but she remembered calling for an Uber and then being sexually assaulted in the passenger seat of a vehicle.

Plaintiff submitted to a sexual assault examination at the Family Life Center. Plaintiff also filed a police report and contacted Defendant Undersheriff Matthew Cline ("Cline") to arrange for an interview between Plaintiff and law enforcement officers from the St. John's Sheriff's Office ("SJSO").

Law enforcement officers began investigating Plaintiff's claims immediately and were able to discover the alleged assailant's name. Officers also interviewed the bartender serving Plaintiff immediately before the incident. The bartender stated that the pair were very close at the bar and may have been kissing before leaving together. Video and photographic evidence showed the two dancing and touching while at the bar.

The alleged assailant denied assaulting Plaintiff. He claimed that before leaving together the two kissed in his truck. As he was driving Plaintiff home, he claims she began touching his crotch before Plaintiff asked him to pull over where the pair engaged in what he described as consensual sexual intercourse.

He admitted to ripping Plaintiff's panties when he pulled them to the side, and Plaintiff was photographed with injuries to her left wrist after the incident. Plaintiff left the vehicle and waived down another driver and awoke in that person's car. Ultimately, Plaintiff declared that she did not want the investigation to go further once the alleged assailant was identified, and law enforcement ceased further efforts. Defendant Cline found the alleged assailant's version of events to be more corroborated by the evidence.

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Recent Books on the Constitution

My seminar picks for 2025 (and every year since 2005)

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Each fall, I teach a seminar called Recent Books on the Constitution. I initially designed this course when I visited Georgetown in 2005. At that time, because I tend to read what relates directly to my current projects, I felt that I was not keeping up with the literature. By assigning recent books on the Constitution to read as part of my teaching, I would actually read them. This has really worked for me. I have now read a lot of books on the Constitution. The complete list of all the books I have assigned is below.

Since 2005, I have assigned 100 books by 91 authors, with James Fleming, Sandy Levinson, Gerard Magliocca, Eric Segall, Dan Farber, Jonathan Gienapp, Philip Hamburger, Kim Roosevelt, and David Bernstein each making more than one appearance. Over the years, I assigned four books in manuscript before publication. This past fall, I assigned the manuscript of the book I am now writing on libertarianism for the real world. Here are the five "recent books on the Constitution" I assigned for fall of 2025:

I select books I think I ought to read–either because of the subject or the author. I then hold off reading them myself so I can read them at the same time as the students. This enables me to react to the books along with them, and for me to remember the nuances of the books for class discussion.

The seminar format is to read 6 books, taking 2 weeks on each book, with the author coming to the class during the second week to discuss the book. The first book is now always one of mine to use as a trial run and to give the students an idea of where I am coming from when we discuss the other books. When books are longer than 250 pages, I ask the author to tell me which 250 pages I should assign. If I assign much more than 125 pages per week, I fear the students won't read them, or won't read them carefully enough. To help assure that they do, students submit one-page summaries of each half of the book (graded pass-fail). On the day before the author's visit, they submit a 5500 character critique of the book, which I send to the author electronically the day before class. (They all read them.) When the class ends, there is no exam or paper for the students to write or for me to grade. We are done!

Students consistently tell me that the course is extremely enriching, and helps them develop their critical skills. They are never expected to read whole books and rarely asked to concisely formulate their own objections to scholarship. It is also empowering for them to see how well they are able to find the holes in a professor's book-length presentation. I find that, collectively, the students are able to nail the weaknesses of every book (except mine, of course).

[Note to law professors: I have a budget to pay for the authors' travel expenses. But now that we all have access to Zoom teaching, this seminar format can be replicated anywhere at zero cost. Wouldn't it be great if there were a dozen or more such book seminars around the country? Try it. I promise you will love it.]

If you click on READ MORE you will see why teaching this class has been enormously rewarding for me. Offer my heartfelt thanks to all these authors for trekking to DC to discuss their books with my students.

2024

2023

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crime victims

Democratizing Criminal Justice Through Crime Victims' Rights

Steve Twist and I propose increasing involvement by crime victims as a way to reduce politicization of criminal justice processes.

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The NYU Law Democracy Project is promoting dialogue across ideological and political lines, their goal being to help break through today's partisanship. They've launched the "100 Ideas in 100 Days" series, featuring a wide range of contributions from voices across the political spectrum in the United States and around the world.

My friend Steve Twist and I have made a contribution to their effort by proposing increased attention to crime victims in the criminal justice process. The introduction to our essay explains how elevating the role of crime victims could help improve public confidence in the system:

Growing citizen distrust is a serious problem facing the nation's criminal justice system—and, as a result, our democracy. Over the last decade, we have seen arguments coming from both sides of the political divide about politicization, unfair charges, and unjust results. These concerns about politicization are not tied to one Administration or the other but have been growing for years.

The usual solution offered is to increase the professionalization of the system, bring in more lawyers or judges and insulate them from political pressures and the like. Or to place more emphasis on historic norms that often seem to shift, depending on who is assessing those norms.

A more viable solution is not to turn to the "professionals" but to increase participation by ordinary citizens—those who have the most at stake in the criminal justice system: crime victims and their families. Such an approach is broadly democratic, as it removes power from the government (whoever might be in control). A more victim-centric system places power in the hands of those who have less incentive to politicize outcomes and more incentive to focus on violent and other clearly non-political crimes.

You can read our whole essay here.

Politics

Plaza Can Be Temporarily Closed for Construction, Without Violating First Amendment

The National Park Service had announced "a temporary closure of Columbus Circle" in D.C. for "the renovation of the fountain, cleaning of the statues, plaza and turf renovations to the park site."

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From Mytych v. National Park Service, decided Thursday by Judge Trevor McFadden (D.D.C.):

David Mytych helps run a volunteer nonprofit called FLARE USA{, a volunteer nonprofit organization committed to political expression and advocacy about authoritarianism, impeachment, and constitutional accountability}. For months, FLARE maintained a demonstration [in Columbus Plaza] outside Union Station in Washington, D.C., to express its views on various political issues. FLARE had a National Park Service ("NPS") permit to do so. {FLARE picked Columbus Plaza for its position as the "main pedestrian gateway between Union Station and the United States Capitol" ….} But toward the year's end, NPS told Mytych and FLARE that a construction project required the demonstration to move to a nearby park….

The First Amendment ensures "that members of the public retain strong free speech rights when they venture into public streets and parks." These areas are traditional public fora, meaning they "occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate." …

That said, … [c]ourts endorse [content-neutral] time, place, and manner restrictions [on speech in traditional public fora] to address a variety of significant governmental interests.

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