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The Latest Breaking News from Eugene Volokh

Ninth Circuit Reverses "Provisional" Sealing of Appellate Brief in Interesting Free Speech Case

Appellate briefs need to be treated as public documents, and (I argued) shouldn't be "provisionally" sealed for months or years without findings that such sealing (or, more often, redaction) is genuinely necessary.

Reason

PayPal Says It Won't Fine Users $2,500 for Misinformation, but It Will Fine Them for 'Intolerance'

"Sounds like a good reason to think twice about using PayPal," writes Eugene Volokh.

Reason

The University of Idaho Tries To Force Faculty To Remain 'Neutral' on Abortion

The policy, released this week, places unconstitutional prohibitions on faculty speech.

Reason

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Are Bumble Bees Fish? Are Fish Animals?

My eponymous co-blogger Eugene Volokh has called attention to a case that involves the question whether a bumble bee is a "fish" for purposes of a California statute. This kind of problem of surprising statutory scope comes up often (mischief rule to the rescue!). This particular case brought to mind…

Reason

Draft Motion to Get Access to an Interesting (but Sealed) Appellant's Brief in a First Amendment Case

Should an appellate court provisionally seal a brief until the case is heard on the merits? Or should it try to make a redacted version promptly available?

Reason

Crafting Laws That Limit Private-Employer-Imposed Speech Restrictions

As I mentioned last week, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for…

Reason

A Florida license plate has reopened the debate over the 'Don't tread on me' flag

Gov. Ron DeSantis says a plate featuring the Revolutionary War-era Gadsden flag sends a "clear message to out-of-state cars." Others say the flag symbolizes a dangerous far-right extremist ideology.

WEKU

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No, 18 U.S.C. § 2071 Cannot Disqualify Trump From The Presidency

That statute disqualifies a person from "holding any office under the United States."

Reason

Alex Jones’ $49.3M verdict and the future of misinformation

Infowars conspiracy theorist Alex Jones is facing a hefty price tag for his lies about the Sandy Hook Elementary School massacre — $49.3 million in damages and counting — for claiming the nation’s deadliest school shooting was a hoax

The Independent UK

American Council of Education Claims Ending Racial Preferences in College Admissions Would Chill Speech

Do First Amendment claims about racial preferences hold water?

Reason

Should the Law Limit Private-Employer-Imposed Speech Restrictions? Some Other Reasons Why

As I mentioned yesterday, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and…

Reason

Should the Law Limit Private-Employer-Imposed Speech Restrictions?

The Constitution limits the government's—including government employers'—power to discriminate based on race, sex, or religion. A federal statute and statutes in nearly all states applies these norms to private employers as well. Many libertarians disapprove of any such restrictions on private employers; but for nearly 60 years, American law has…

Reason

Constitutionally Protected Lies and the Practical Difficulties with the Fact vs. Opinion Distinction

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (You can also read the whole article here; all the posts about it…

Reason

War on California gun laws revs up after Supreme Court’s ‘right to carry’ decision

LOS ANGELES — For years, the relationship between Miranda and Richard Wallingford and their Huntington Beach neighbor Jessica Nguyen has been unhappy — if not outright hostile.

Los Angeles Times

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Reason

"The Law of Pseudonymous Litigation" Now Officially Published

It's Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353 (2022); I hope it's a useful resource for judges, lawyers, professors, students, and even pro se litigants. I've tried to make it both analytical (setting forth in detail the key policy arguments and the key internal doctrinal structures)…

Reason

Politicians Defy the Supreme Court's Ruling on the Right To Bear Arms

Several states are retaining subjective criteria for carry permits or imposing new restrictions on gun possession.

Los Angeles Times

California enacts sweeping gun control laws, setting up a legal showdown

SACRAMENTO, Calif. — Less than a month after the U.S. Supreme Court ruled against restrictions on carrying firearms in public in a substantial victory for Second Amendment advocates, California Gov. Gavin Newsom has signed at least three major gun control measures into law to restrict access to the weapons and…

Reason

State Reactions to the SCOTUS Ruling Against Discretionary Carry-Permit Laws Range From Compliance to Defiance

Some states promptly eliminated subjective standards, while others refused to recognize the decision's implications.

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Reason

The Academic Freedom Podcast #15 on Recent Controversies

A conversation with Eugene Volokh about the Shapiro controversy and political statements by university leaders

Reason

'Seditious Conspiracy' Charges for Proud Boys Taint January 6 Prosecutions

Normal criminal law covers the alleged acts without politicizing proceedings.

Reason

Thoughts on the Supreme Court's Reinstatement of the Preliminary Injunction Against the Texas Social Media Law

The ruling is not a final decision on the merits. But it likely signals that at least five Supreme Court justices believe the law is unconstitutional.

Reason

The Reverse Spider-Man Principle: With Great Responsibility Comes Great Power

[I blogged an early draft of this essay three months ago, but I've revised it extensively since then. I'd love to hear any suggestions people might have; I still have a few weeks to edit it before it's put to bed. You can also read the whole thing in a…

Los Angeles Times

Can Jerry West take his case against HBO to the Supreme Court? Or any court?

LOS ANGELES — It might have sounded like a bluff when Jerry West recently vowed to take his much-publicized battle with HBO "all the way to the Supreme Court."

Reason

Pseudonymous Lawsuit by Police Officer Over His Placement on "Exculpatory Evidence List"

I filed a motion to unseal and oppose pseudonymity last week in Doe v. Town of Lisbon (thanks to my students Ireland Larsen, Matthew Veldman, Erin Yonchak for their work on it), and I thought readers might find it interesting. The backstory, from a 2020 N.H. Supreme Court decision (see…

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