Category: All Posts

  • Sixth Circuit Says School Board Violated Speaker’s Free Speech Rights

    The Sixth Circuit ruled today that a public school board president likely violated the First Amendment when she shut down a speaker at a board meeting for “calling people names” and spreading “baseless accusations.”

    The ruling prohibits the board from restricting the speaker at future meetings. It also marks the first time that the Sixth Circuit applied the “heckler’s veto” doctrine to speech in a limited public forum.

    The case, Boddy v. Grech, arose when Darbi Boddy addressed the Xenia (Ohio) Board of Education during the public-comments period of the Board’s meeting. Boddy delivered a prepared speech that criticized the superintendent for reprimanding a Board member who sought an audit of the schools’ supposed teaching of critical race theory. Board President Mary Grech took the microphone from Boddy mid-speech and the Board then recessed.

    Boddy sued, arguing that Grech’s and the Board’s actions violated her free-speech rights. The district court ruled that she failed to demonstrate a likelihood of success on the merits (and therefore denied her motion for a preliminary injunction). The Sixth Circuit reversed.

    The court ruled first that Grech’s and the Board’s actions amounted to impermissible viewpoint discrimination in a limited public forum. “The evidence in the record demonstrates that Grech curtailed Boddy’s speech because Boddy shared views critical of the Board and [the superintendent].”

    The court went on to say that Grech’s actions ratified a “heckler’s veto” over Boddy’s speech. A heckler’s veto occurs when an official shuts down protected speech based on the audience’s reaction–a First Amendment violation. In this case, the court said that Grech shut down Boddy’s speech in part because of the attendees’ reaction to it. Instead, the court wrote, “she could have used her authority to quiet the crowd instead of Boddy.”

    This case is the first time the Sixth Circuit applied the “heckler’s veto” doctrine to a limited public forum. The court said that “its application flows logically from our First Amendment jurisprudence.”

  • No First Amendment Right for Media to Attend Executions, says Seventh Circuit

    The Seventh Circuit ruled that media outlets do not have an especial First Amendment right to attend executions. The ruling, along with Indiana’s law, sharply limits press access, reporting, and oversight on executions in Indiana and other Seventh Circuit states that similarly limit the number of observers to executions.

    The ruling means that Indiana can continue to restrict the number of individuals who can attend an inmate’s execution, including up to five individuals invited by the prisoner, without ensuring media attendance. At the same time, the ruling acknowledges that a prisoner could invite media representatives as part of their allowable five-person invitation list.

    The case, Associated Press v. Neal, tested Indiana’s law that specifies a limited number of individuals who can attend an execution. The list includes “up to five people invited by the inmate” and “up to eight of the victim’s immediate adult family members.” Ind. Code Sec. 35-38-6-6(a). The law does not specify that media can attend, but it also does not prohibit media from attending as part of the inmate’s invitees.

    The plaintiffs, a group of media outlets, claimed that the law violated their First Amendment right to access government proceedings and their First Amendment right under the Press Clause.

    The court first rejected the plaintiffs’ First Amendment claim based on their right to access government proceedings. In order to succeed on a traditional right-to-access claim, the court wrote that the plaintiffs had to show (1) “experience” (that “the place and process have historically been open to the press and general public”) and (2) “logic” (that “public access plays a significant positive role in the functioning of the particular process in question.” Press-Enter. Co. v. Super. Court (1986).

    The court said that the experience-logic test didn’t apply to executions, however, because the Supreme Court had only ever applied it “to traditional aspects of criminal proceedings.”

    But even if it did apply, the court held that the plaintiffs couldn’t satisfy it. As to “experience,” the court ruled that executions haven’t “historically been open to the press and general public.” As to “logic,” the court said that “public access to executions does not clearly play a ‘significant positive role in the functioning’ of the process.” Moreover, the court noted that “allowing uninvited strangers with no immediate connection to the underlying crime to watch a prisoner die risks offending the dignity of their final moments.” (The court also noted that it didn’t have to decide the “logic” question conclusively, because the plaintiffs couldn’t establish “experience.”

    The court also rejected the plaintiffs’ claim that Indiana’s law violated the First Amendment’s Press Clause. The court said that members of the media don’t have any especial rights under the First Amendment (any different than anyone else); that the law didn’t treat the press any less favorably than other members of the public; and that the law therefore didn’t violate the Press Clause.

    Judge Jackson-Akiwumi dissented:

    A government exercises its greatest power when it ends a person’s life. As I see it, such severe and irreversible punishment on behalf of “the people” must be observable to comply with the Constitution. Why? Because the First Amendment protects an informed public’s scrutiny of historically open government activities. And the Eighth Amendment guarantees a condemned inmate the right to be free from cruel and unusual punishment.

    These independent protections meet in the execution chamber. There, the government’s authority is at its peak and so is its accountability to its citizens. Transparency and checks on government power are essential in this context.

  • District Court Blocks $100K Visa Fee

    Judge Leo T. Sorokin today ruled President Trump’s $100,000 fee for H-1B visas unlawful. The ruling vacates the fee in its entirety so that it’s null and void, absent a stay pending appeal.

    The ruling is a significant judicial rebuke of a central part of President Trump’s crack-down on immigration.

    The case, State of California v. Mullin, arose out of President Trump’s unilateral imposition of a $100,000 fee on new H-1B visas. Under the Immigration and Nationality Act, H-1B visas are temporary visas for non-immigrant foreign workers in specialty jobs. The INA authorizes the government to impose certain modest fees on H-1B visas, but these fees usually come to about $960 and $7500. The President’s new fee is obviously (and by design) a significant increase.

    The President pointed to authority for the fee under 8 U.S.C. Sec. 1182(f), the same provision that he used (and that the Supreme Court validated) to impose the travel ban in his first term. Trump v. Hawaii (2018). Section 1182(f) authorizes the President, upon certain findings, to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

    President Trump also pointed to an INA provision that makes it “unlawful . . . for any alien to . . . enter or attempt to . . . enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” 8 U.S.C. Sec. 1185(a)(1).

    Plaintiffs sued, arguing that President Trump’s proclamation establishing the fee violated the Administrative Procedure Act’s procedural requirements, that the fee exceeded the President’s statutory authority in violation of the APA, that the fee was arbitrary and capricious in violation of the APA, and that the fee was an unconstitutional ultra vires act in violation of the separation of powers.

    The court agreed with the plaintiffs on all counts. It ruled first that the fee amounted to a tax without authorization from Congress, and that it therefore impermissibly encroached on Congress’s power to tax. Drawing on the Supreme Court’s recent ruling in Learning Resources v. Trump (holding that President Trump’s tariffs were not supported by authority in the International Emergency Economic Powers Act), it held that the INA statutory provisions above do not delegate taxing power to the President. (The court held that it had authority to review the fee, because the plaintiffs challenged the executive agencies charged with enforcing the fee, not the President himself, and because the plaintiffs’ separation-of-powers claim was, indeed, constitutional, and not statutory. In a recent spate of rulings that give new life to Dalton v. Specter (1994), the D.C. Circuit has denied reviewability of certain claims against President Trump, concluding that they are based on statutes (that the President exceeded his statutory authority) and not on constitutional separation of powers. The court here distinguished Dalton.)

    The court next held that the government violated the APA. It ruled that the government violated the APA’s procedures by “issu[ing] a legislative rule without engaging in notice-and-comment rulemaking.” Next, it held that the government acted outside its statutory authority in violation of the APA. And finally it held that the fee was arbitrary and capricious in violation of the APA.

    Because the court ruled that the fee violated the APA, and because the APA authorizes courts to “set aside” unlawful agency actions, the court vacated the fee in its entirety. (The Supreme Court in Trump v. CASA, the first round of the birthright citizenship case, held that district courts lack authority to issue universal, or nationwide, injunctions. But at the same time, it recognized that the APA authorized district courts to “set aside” unlawful agency actions, and that a district court therefore had authority to vacate an agency rule in its entirety if in violated the APA, as here.)

  • President Trump Removes Civil Service Protections for 8,000 Federal Employees

    President Trump issued an executive order today that revokes civil service protections for about 8,000 senior-level federal employees.

    The new “schedule” for designated employees, called “Schedule Policy/Career,” strips protections for “adverse action procedures” and makes it easier to remove them.

    The move follows earlier efforts by President Trump to establish a “Schedule F,” which would have effected the same result, but likely for many more employees. The move also follows regulations recently implemented by the Office of Management and Budget that authorize the President to designate employees for the new Schedule Policy/Career.

    The Trump Administration describes the move as necessary to “increase accountability” for certain senior-level employees and allow their easy removal if they decline to follow the President’s directives.

    Opponents say, among other things, that the move is part of the Trump Administration’s efforts to consolidate plenary control over the federal bureaucracy in the White House–that is, to politicize the federal bureaucracy–without regard to statutory protections for the civil service.

    In other words, the move is part of the Administration’s efforts to promote, implement, and codify a strong version of the unitary executive theory (UET). UET is the constitutional theory that the President, as unitary head of the Article II branch, has plenary control over its officers and, for some, even its employees, irrespective of statutory protections that Congress enacts pursuant to its own constitutional powers.

    Litigation will surely follow. Stay tuned.

  • The House Passed a War Powers Resolution. What’s the Constitutional Effect?

    The House yesterday passed a concurrent resolution directing President Trump to remove U.S. armed forces from hostilities with Iran. The measure was introduced by Representative Gregory Meeks (NY) and passed by a 215-208 vote.

    So what does the Constitution have to say about this?

    The action was a concurrent resolution pursuant to Section 5(c) of the War Powers Resolution, at 50 U.S.C. Sec. 1544(c). This provision says that when U.S. forces are engaged outside the United States “without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.”

    But a concurrent resolution passes with only the affirmative votes of the House and the Senate. It need not get the signature (or veto override) of the President, like ordinary legislation.

    As a result, there’s a broad understanding that Section 5(c) amounts to an unconstitutional legislative veto. This goes back to a 1983 Supreme Court case, INS v. Chadha, which held that legislative acts must pass both houses of Congress (bicameralism) and be signed by (or passed over the veto of) the President (presentment). (The Court in Chadha struck a law that allowed either house of Congress to override certain immigration decisions of the Attorney General. Because the override amounted to a legislative act, the Court said that it required bicameralism and presentment. And because it authorized one house of Congress to act alone, it violated those requirements.) Under Chadha, because Section 5(c) is a legislative act, and because it authorizes Congress to act without the President’s signature (or a veto override), it lacks presentment, and it is unconstitutional.

    In the wake of Chahda, Congress added a provision to the War Powers Resolution, 50 U.S.C. Sec. 1546a, that fast-tracks a congressional joint resolution to require the President to remove forces (that is, to do the same thing that Section 5(c) authorizes). The joint resolution, in contrast to the concurrent resolution, requires both houses to pass (bicameralism) and a signature (or veto override) of the President (presentment). A joint resolution therefore satisfies Chadha.

    But President Trump would surely veto a joint resolution. And Congress doesn’t have the votes to override. So a joint resolution compelling the President to remove forces stands no chance of becoming law.

    As a result, neither a concurrent resolution nor a joint resolution compelling the President to remove forces would become law. (Even if they could, there’s probably no legal enforcement mechanism. The courts almost certainly wouldn’t get involved, because such challenges are almost surely a non-justiciable “political question.”)

    But that doesn’t mean that yesterday’s action is meaningless.

    The House’s move to use a concurrent resolution sends a strong political signal to the President. Senate passage would make that signal even stronger.

    In addition to passing War Powers Resolutions (concurrent or joint), Congress has other ways to compel or pressure the President to remove forces. For one, it could withhold funding for the war, or for the military more generally, or for some other, unrelated presidential priority. (Like other legislation, however, this would require the President to sign the measure, or Congress to override a veto.) For another, it could refuse to confirm presidential nominees or refuse to pass legislation on presidential priorities, even in areas unrelated to the war. And for a third, it could engage in meaningful oversight. Among other things.

  • Supreme Court Upholds Alabama Congressional Map, Further Erodes Protections Against Racial Gerrymandering

    The Supreme Court late yesterday allowed Alabama to use a congressional district map that was based on intentional race discrimination, according to an earlier three-judge court decision.

    The ruling almost certainly means that Alabama will have one less Black representative in Congress, and one less Democrat.

    It also means that plaintiffs will have an even tougher time proving illegal racial discrimination in legislative districting going forward–that is, even more difficult than after the Court’s recent ruling in Louisiana v. Calais. In other words, yesterday’s ruling, as a practical matter, all but eliminates racial discrimination claims in legislative districting. That’s because the Court made it yet easier (again, easier even than Calais) for states to evade claims of racial discrimination by simply providing political reasons for their maps, even political reasons that overlap with race. And if states can’t even manage that, they can evade claims by playing the courts.

    To see all this, here’s a brief history of this up-and-down case:

    In 2021, Alabama adopted a new congressional map with just one majority-Black congressional district. A three-judge court ruled that the map violated Section 2 of the Voting Rights Act, because it had a racially discriminatory effect and diluted Black voters’ voting strength. The court ordered the state to adopt a map that included a second district where Black voters could elect a candidate of their choice.

    Alabama appealed to the Supreme Court, arguing that it didn’t have time to implement the lower court’s ruling. (The lower court issued its ruling in January 2022, and Alabama’s primary election was slated for May 2022.) The Court stayed the lower court ruling and allowed Alabama to use the 2021 map (the one with just one majority-Black district).

    The Supreme Court later affirmed the lower court’s ruling (that the 2021 map violated Section 2 of the VRA) and its remedy (to draw a second district where Black voters could elect a candidate of their choice). The Court said that the lower court faithfully applied Court precedent in its ruling and remedy.

    In response, in 2023 Alabama adopted another map, also with just one district where Black voters could elect a candidate of their choice. (In other words, the state thumbed its nose at the Supreme Court ruling.)

    Plaintiffs then challenged the 2023 map, arguing that it violated both Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment. (Although those are related, they are two different, distinct claims.) The district court ruled that the new map violated the VRA. The court instituted a remedial map, drawn without reference to race. This map governed the 2024 election.

    Alabama again appealed to the Supreme Court. While the appeal was pending, the Court decided Callais. Callais revised the test for Section 2 claims under the VRA and made it substantially harder (maybe impossible) for racial minority voters to prove a Section 2 violation. (That’s because Callais now requires plaintiffs to dis-aggregate and account for any state political objective in redistricting–a near impossible feat in the racially-polarized political environments where Section 2 does its work. In other words, after Callais, states can insulate themselves from a Section 2 claim simply by providing political objectives for their gerrymander.)

    But Callais did not change the test for equal protection claims.

    After it issued Callais, the Court vacated the lower-court ruling and remanded the case for reconsideration in light of Callais. Alabama announced that it would use the 2023 map (which, recall, the district court struck as a racial gerrymander) for the upcoming 2026 election. (The governor called a special primary election for August 11 (months later than the regularly scheduled primary) in four of the districts that were affected by all this.)

    On remand, the three-judge district court ruled again that the map violated the VRA. It also ruled that the map was based on intentional racial discrimination in violation of the Equal Protection Clause. (The court said that its earlier decision on intentional racial discrimination was “undisturbed by Callais.” That’s not surprising, because, remember, Callais changed the Section 2 test (for discriminatory effect), not the equal protection test (for discriminatory intent).) It wrote, “[D]espite our searching review of all the evidence before us–much of it directly from the Legislators and Legislature, none of it in dispute–try as we might, we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians’ voting strength and evade the unambiguous requirements of court orders standing in the way.” (Just a quick note on that: Under Supreme Court precedent, without direct evidence of racial discrimination, it’s tough–really tough–to prove that a racial gerrymander is based on intentional racial discrimination.)

    Yesterday, the Supreme Court stayed that ruling. In a brief, shadow-docket opinion, the Court wrote that the district court failed to apply a presumption of good faith to the state’s behavior and failed to apply the new Callais standard.

    Significantly, the Court extended the new Callais standard to the equal protection claim, writing, “And, as to both claims, the District Court’s analysis departed from Callais.” (Recall that Callais revised the standard for Section 2 claims under the VRA. Callais said nothing about equal protection claims like the one at issue in this case.) This shoehorns the new Callais standard into equal protection claims and makes it equally difficult (or impossible) for plaintiffs to challenge a racial gerrymander under the Equal Protection Clause as it now is to challenge a racial gerrymander under the VRA.

    The ruling also validated the state’s efforts to manipulate the courts. Recall that the state previously told the Court that it couldn’t comply with the first district court ruling, because it didn’t have enough time before its scheduled election (from January 2022 to May 2022). Yet the state now says that it can switch from the district court’s earlier remedial map (which the state used in the 2024 elections) to the 2023 map for the 2026 primary elections–on a much tighter timeline. Moreover, recall that the state ignored the Court’s earlier ruling that affirmed the district court’s holding that the 2023 map likely violated the VRA and the district court’s order requiring the state to draw a second majority Black district. The Court’s ruling yesterday validates all this behavior.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. She concluded, “Because I choose to defend the rule of law and the right of all Alabamians to participate equally in democracy, I respectfully dissent.”

  • Court Stops National Park Service from Removing Protestors’ “8647” Flag

    Judge Randolph D. Moss (D.D.C.) issued a temporary restraining order yesterday preventing the National Park Service from revoking the demonstration permit of a protestor or removing the protestor’s flag, which included the numbers “8647.” The court rejected NPS’s arguments that the flag amounted to a true threat or incitement.

    The ruling is temporary, so the court’s assessment goes to the likelihood of success on the merits (and not necessarily the actual success). Still, it’s hard to see how NPS could prevail as the case moves forward.

    The case, Accountability Now USA v. Griess, arose when NPS officers instructed protestors to take down their “8647” flag from their 24/7 protest tent and threatened to revoke their free-speech permit if it reappeared. Accountability Now amended an existing complaint against NPS (for threatening to revoke the permit for other yet other signs that the organization displayed at the site) and sought a TRO.

    The court ruled that Accountability Now was likely to succeed on the merits of their free-speech claim. The court first noted that content-based restrictions on speech, especially political speech, are inherently suspect and generally invalid under the First Amendment. It then rejected NPS’s arguments that the flag represented a “true threat” or “incitement,” two exceptions to the First Amendment’s general prohibition on content-based restrictions on speech.

    “‘True threats’” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black (2003). In assessing whether a statement constitutes a “true threat,” courts look to the entire factual context of the statement. A statement must meet both an objective standard and “a subjective mental-state requirement . . . .” Counterman v. Colorado (2023). As to the subjective standard, a speaker must “consciously disregard[] a substantial and unjustifiable risk that the conduct will cause harm to another.” Id.

    The court said that the overall context of the flag didn’t meet this test. It pointed to a dictionary definition, which said that “86” mostly means “to throw out” or “to get rid of”; the fact that the flag contained no symbol of violence and was part of a months-long demonstration demanding “the impeachment and removal of President Trump”; and the fact that a protestor earlier told an NPS officer that they “want[ed] Trump to live forever” so that he could “rot in jail.”

    “Incitement” is speech “directed [at] producing imminent lawless action and likely to incite or produce such action.” Brandenburg v. Ohio (1969). Like “true threats,” “incitement” also depends on context. It also requires the speaker to have “specific intent, presumably equivalent to purpose or knowledge.” Id.

    The court ruled that the flag didn’t meet this test, either. As with “true threats,” the surrounding context showed that the flag did not constitute “incitement.”

  • No Right to Post “Crass” Statements by Coast Guard Auxiliarist

    The Seventh Circuit ruled yesterday that a Coast Guard Auxiliarist’s “Crass” Statements on social media are not protected by the First Amendment.

    The case, Wenzler v. United States Coast Guard, arose when Coast Guard Auxiliary member James Wenzler posted a series of offensive statements on LinkedIn. After warning him, the Auxiliary suspended Wenzler, initiated formal disciplinary proceedings, and ultimately removed him from his position.

    Wenzler sued, arguing that the Coast Guard retaliated against him for engaging in protected speech. The district court ruled for the Coast Guard, and the Seventh Circuit affirmed.

    The court applied the familiar Connick/Pickering test for free speech for public employees. Under that two-part test, courts first ask if a public employee’s speech was on a matter of public concern. If not, the speech is unprotected. But if so, courts then balance the speaker’s interests “in commenting upon matters of public concern” against the government’s interest “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education (1968).

    The court assumed that Wenzler’s speech touched on matters of public concern. It then ruled that the Auxiliary’s interests outweighed Wenzler’s:

    Given the uncontested facts before us, the Auxiliary could have reasonably determined that Wenzler’s speech and actions would be detrimental to the Auxiliary and its reputation. He served in a leadership role, and the example he set matters. The Auxiliary could have reasonably expected that other Auxiliarists would be less likely to work with Wenzler, or at least to work well with him, following his derogatory comments and attacks on others. Wenzler’s statements alarmed at least two members of the public enough to notify the Auxiliary. On this record, the Auxiliary could have been justifiably concerned about its negative impacts to its reputation and, in turn, its recruiting and retention. In the long run, its ability to serve the public might suffer, or at least the Auxiliary could have reasonably believed so.

    The district court properly found that the Coast Guard’s reasonable determination that Wenzler’s speech could undermine the Auxiliary’s mission outweighed his interest in the statements he made.

  • DOJ Scraps Trump Settlement Fund

    According to the NYT, Acting AG Todd Blanche just told Congress that DOJ was “not moving forward with the fund, period.”

    We posted on the history and litigation around the fund below.

  • D.C. Circuit Says Ban on Transgender Military Service Likely Violates Equal Protection

    A divided three-judge panel of the D.C. Circuit ruled yesterday that the Trump Administration ban on transgender individuals serving in the military likely violated equal protection.

    The ruling, while only preliminary (thus holding the plaintiffs were likely to succeed) and while applicable only to the plaintiffs in the case, nevertheless deals a significant blow to the Trump Administration efforts to ban transgender individuals from military service. It also offers a scathing assessment of those efforts, concluding that they were arbitrary and based on sheer animus.

    The ruling says that the government can’t base policy, even military policy, on animus alone; instead, the government has to have legitimate reasons.

    The case, Talbott v. United States, challenges the Administration’s ban on transgender individuals serving in the military. That ban arose out of President Trump’s January 27, 2025, Executive Order proclaiming that persons “expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.” President Trump, and later Secretary Hegseth, also declared that persons afflicted with gender dysphoria are unfit for military service because, among other things, their character is “inconsistent” with the “high standards . . . [of] honesty, humility, . . . and integrity.” The “Hegseth Policy” deems transgender applicants for military service unqualified; and it mandates that currently serving transgender individuals go through the administrative separation process, a process usually reserved for personnel accused of misconduct. (The Policy specifically disqualifies anyone with a history of gender dysphoria. But its broad language effectively disqualifies any transgender person, whether they have a history of gender dysphoria or not.)

    The district court ruled that plaintiffs were likely to succeed in their challenge to the Policy and entered a preliminary injunction halting the Policy’s implementation as to the plaintiffs.

    The divided three-judge panel of the D.C. Circuit affirmed in part and vacated in part.

    Two judges agreed that the Policy likely violated equal protection. Judges Wilkins and Rogers concluded that the the Policy was based only on animus and therefore failed at any level of review. In short, they said that the Administration failed to provide a legitimate reason for the Policy, and that President Trump’s and Secretary Hegseth’s stated justifications amounted only to “a bare . . . desire to harm a politically unpopular group.” USDA v. Moreno (1973). They said that neither United States v. Skrmetti (2025) (upholding state bans on certain medical treatments for transgender minors) nor Trump v. Hawaii (2018) (upholding President Trump’s first-term travel ban) changed this.

    Judge Walker, in dissent, argued that the court should give greater deference to the Administration’s military judgment. “We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks. The Constitution assigns that authority to Congress and the Commander in Chief.”

    Ultimately, the court only affirmed the district court injunction as to those plaintiffs already in the military, and not to the plaintiffs who are seeking accession into the military.