In a post about a fairly pedestrian New Jersey case in which the Supreme Court held that a statute creating a private cause of action for disorderly conduct for the offense of revealing an expunged arrest against a local paper that refused to remove a published report when, months later, the arrest was expunged, Eugene Volokh concludes with a quite stunning proposition.

I should add that I think that there’s some room in libel law for requirements that a site on which an arrest report is posted should also report that the arrestee was exonerated, if the site is informed of that, or else face liability for reporting what is now a half-truth. (See this article and this one.) But even if courts were to accept that libel theory, that can’t justify a statute such as New Jersey’s, which purports to categorically forbids revealing the existing of an expunged arrest even when the publication reports on the expungement as well.

Can a “truth” be turned into a “half truth” after the fact? Does it create a duty, after the fact, to revisit the publication to correct, modify, alter what was written to reflect what happened subsequently? Continue reading →

The Supreme Court grants cert in a death penalty case, agreeing to decide the question of whether the defendant was denied effective assistance of counsel. At the same time, the Supreme Court denies a stay of execution, with the execution date set for the next day. On the surface, it makes no sense. After all, regardless of what the Supreme Court decides, the defendant will be dead. No matter how much authority one places in the Court’s order, the defendant will still be dead, thus rendering the Court’s decision a fait accompli or a nullity. Either way, it makes no sense.

So why, oh why, did the Court deny the stay pending its hearing and determination of the case? The Court offers no explanation. No rationale. It just says “stay denied.” “What,” you reasonably ask, “are they doing?” Continue reading →

Whether you like Rosie O’Donnell or not is completely irrelevant. Keep it to yourself. O’Donnell was born in 1962 in Commack, New York, just down the road from me. For better or worse, she is an American, and she will, as a matter of law, remain an American unless and until she chooses to relinquish her American citizenship. She can move to Ireland. She can call Trump names. She can militate against his worst impulses and best, and yet the law holds her to be an American. Of this, no one but an absolute ignoramus can dispute.

Shortly before 10 a.m. on Saturday, Mr. Trump said on Truth Social, “Because of the fact that Rosie O’Donnell is not in the best interests of our Great Country, I am giving serious consideration to taking away her Citizenship.”

The president called Ms. O’Donnell a “threat to humanity” and said she should stay in Ireland, where she moved to in January after Mr. Trump won a second term.

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Clarissa Gilmore just wanted to visit her husband, Mulik Sheets, at the Smith State Prison in Georgia, as she had many times before. It started with nothing beyond the usual entrance searches.

Twice a month, Ms. Gilmore visited her then-husband, Mulik Sheets, at Smith State Prison in Georgia. On February 26, 2017, she arrived, as she had roughly fifty times before, and successfully proceeded through the initial security screening. That meant undergoing three different types of searches: a pat-down search, a metal-detector wand search, and an electromagnetic-radiation/body-scan search.

Bringing contraband into a prison is a problem, even if the biggest violators tend to be guards rather than visitors. And it’s not as if visitors aren’t warned that there will be searches, but within the normal parameters. Gilmore went through the normal searches and began her visit with her husband. Then she got the eye from Lieutenant Alberta Milton, and Gilmore stared back. From there, things got weird. Continue reading →

It’s not that I intentionally set out to do something epically stupid on July 4th.

It just sort of happened. That’s pretty much America in a nutshell, right?

But I’m getting ahead of myself. Last week, I set out to take care of a minor gardening issue while my better half and the children cooked for our annual America Day feast. There are a number of bushes in my front yard and around the side of the house that have overgrown onto the walkway surrounding the property. I’m quite aware of this as the family dog, Poppy, is a ball of muscle with zero physical restraint who loves to pull me into those overgrown branches when we go out for morning walks. Continue reading →

The newest justice on the Supreme Court has no less a vote and voice as the most senior, and Justice Ketanji Brown Jackson has not been shy about using both. But to what end?

At bottom, this case is about whether that action amounts to a structural overhaul that usurps Congress’s policymaking prerogatives—and it is hard to imagine deciding that question in any meaningful way after those changes have happened. Yet, for some reason, this Court sees fit to step in now and release the President’s wrecking ball at the outset of this litigation.

Harsh words. Justice Jackson’s dissents have regularly used harsh words in condemnation of Trump’s actions. But in Trump v. American Federation of Government Employees, addressing the reduction in force of federal government employees, Jackson dissented alone, with Justice Sotomayor, her usual comrade in dissent, admonishing her to take it down a notch. Continue reading →

It’s a movie. See it. Don’t see it. Whatever. But the fact that the new James Gunn Superman movie has become the latest focus of anti-woke grievance as the latest battle in the culture war is illegal aliens is telling.

“Superman” director and DC Studios co-head James Gunn is facing backlash for calling the Man of Steel “an immigrant that came from other places” in a new interview.

Ahead of the release of Warner Bros.’ superhero reboot on July 11, Gunn, 58, told The Sunday Times of London that “‘Superman’ is the story of America… An immigrant that came from other places and populated the country.” Continue reading →

The simplistic slogan that “no one is above the law” has become unfortunately popular, as it’s neither correct nor sound, gripping the public perception whenever it’s convenient. It was regurgitated constantly when it was Donald Trump in the dock, until the Supreme Court’s decision to the contrary, and it reared its ugly head again when Milwaukee District Court Judge Hannah Dugan was arrested and indicted for her role in interfering with ICE’s seizure of Eduardo Flores-Ruiz.

Judge Dugan moved for dismissal on the basis, inter alia, of judicial immunity. Eastern District of Wisconsin Magistrate Judge Nancy Joseph’s report and recommendation would deny the motion, finding that while immunity for civil liability is clearly established, the same cannot be said for criminal liability. Continue reading →

Not too long ago, there was growing consensus that the “Warrior Cop” as described by Radley Balko’s seminal work was a bad thing, creating the mentality of police against citizenry rather than police as protectors of the people. Police carried weapons of war, drove armored vehicles and wore gear best suited to causing fear and loathing. If that was a problem then, what happened in Los Angeles’ MacArthur Park was nothing short of a siege, albeit one without an enemy in sight or a purpose other than to perform for the cameras.

It had been a quiet morning in MacArthur Park, a hub in one of Los Angeles’s most immigrant-heavy neighborhoods. Children at a summer camp were playing outside, but the park was otherwise largely empty. Continue reading →

Remember when the co-president was thought to be Elon Musk, before he decided to start a new political party because he was such a popular and charismatic figure in American politics? We were, apparently, quite wrong, as the real president was hiding in the shadows all along. He was a 39-year-old son of wealthy California Democrats whose formulative years were spent blaming janitors for not picking up the trash he tossed to the ground. And in the second Trump administration, he appears to have more power than pretty much anyone else. His name is Stephen Miller.

It was during his formative years that Mr. Miller developed a broader critique of society. He watched the left take over California and, in his view, turn it into a failed state — failures that he believed were directly attributable to immigration. As he explained years later, it was his experience in California that led him to conclude that “mass migration turns politics leftward” and that mass migration was turning the United States into California.

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