PrawfsBlawg

The things you learn from random “Next Door” emails.

A South Florida man pleaded guilty and was sentenced to 60 months for creating and administering “online chat groups dedicated to the distribution and discussion of sexual and violent videos depicting monkeys being mutilated and burned.”

I confess to not knowing what had become of federal regulation of “animal crush” videos after United States v. Stevens declared the federal ban invalid. Congress amended the law in 2010 to add a requirement that the video be “obscene” (incorporating by reference the Miller definition). The Fifth Circuit in 2014 rejected a constitutional challenge to the amended law. The obscenity element pushes the speech into a recognized category of unprotected speech. And rather than raising an R.A.V. problem by targeting one narrow content-based form of otherwise-unprotected speech, the law targets secondary effects by drying up the market for the conduct of harming animals.

Congress amended § 48 in 2019 to add a prohibition on crushing animals in addition to existing prohibitions on making and distributing crush videos.¹

1. For the “All Hail Trump” Files: The DOJ statement on the guilty plea highlights President Trump’s role in signing the 2019 amendment. Besides being irrelevant, it is kind of misleading. This defendant pleaded guilty to charges under pre-existing distribution provisions, signed into law by (gasp!!) Barack Hussein Obama. ↩︎

From the CHE, with a laundry list of recent incidents (although from May 14, so it missed several more in the past 10 days, including NYU), and Austin Sarat in the Conversation, pushing the basic FIRE/Disinvitation Season/Protest=Heckler’s Veto line.

The CHE article begins and ends with the story of graduates at University of Central Florida booing Gloria Caulfield when she promoted AI. The was the first of several such crowd reactions, including former Google CEO Eric Schmidt at University of Arizona and music executive Scott Borchetta at Middle Tennessee State.

I return to my repeated question: Is such heckling a legitimate and permissible form of “more speech?” Or is it equivalent to an impermissible heckler’s veto that silences ideas and undermines free speech. Is accepting the speaker but booing her as bad as objecting to her speaking?

Sarat ends his piece thus:

In 2017, Drew Gilpin Faust, then the president of Harvard University, seemed to understand this absence when she issued a free speech message to graduates in her commencement address. “Silencing ideas or basking in intellectual orthodoxy independent of facts and evidence impedes our access to new and better ideas, and it inhibits a full and considered rejection of bad ones,” Faust warned.

Commencement season puts Faust’s admonitions to the test. “Universities,” she said, “must model a commitment to the notion that truth cannot simply be claimed, but must be established – established through reasoned argument, assessment and even sometimes uncomfortable challenges that provide the foundation for truth.”

Sarat plays a bit of game here. He equates Faust’s view of “the university” (notably the university classroom) with “the commencement address.” But a commencement address cannot be a forum for “reasoned argument, assessment and even sometimes uncomfortable challenges.” Heckling concededly does not constitute reasoned argument. But if it is off-limits to audience as a form of expression, then Sarat’s argument reduces to shut up and listen.

Update: Steve wrote about this in the dark ages of 2019, including the point that a commencement address need not be treated the same as every part of “the university.”

I have a question. If the Presidential Records Act is unconstitutional, then aren’t most of the presidential libraries also unconstitutional? The National Archives runs them rather than the ex-presidents or their heirs. Perhaps all of the ex-presidents and their heirs like the current setup and would consent, but they would have to do so for the Archives to act as the custodian, right?

On Wednesday night I gave a book talk at the Center. It was a wonderful experience. They have many great artifacts there, including Jackson’s desk from Nuremberg and his Supreme Court bench chair.

One great story is that after Nuremberg, Jackson hung the flags of the four Allied powers behind his desk in chambers. He was surely the only Justice to have a communist flag in his office (or at the Court, for that matter).

It should be the model for all of us.

FIU finds itself in the middle of three student-speech controversies.

Racist Chat Group:

I mentioned this one: Three students (including a 3L) said racist, sexist, antisemitic, and other offensive crap in an off-campus group chat. The university suspended two of them for two years–one for making “verbal or written abuse, threats, intimidation and/or coercion that objectively endangers the health, safety or well-being of others” in violation of the student code of conduct¹ and the 3L (who set-up the group chat) for “affirmative act which aids, attempts, promotes, conceals, or facilitates” those violations. The third student’s disciplinary proceeding is pending.

Meanwhile, SD Fla Chief Judge Altanaga abstained from their § 1983 action under Younger, concluding that a university disciplinary proceeding qualifies as a civil enforcement proceeding akin to a criminal action. I think this is right–hard to see a difference between a university enforcing its codes and, e.g., a State Bar enforcing PR regulations. Although given the increasing frequency with which public universities sanction students for expressive conduct, this has the potential to remove a large swath of First Amendment cases from federal court.

Interestingly, the University of Florida did not raise Younger in defending a lawsuit challenging its suspension and investigation of a law student for similarly racist off-campus speech (and, indirectly, a controversial seminar paper). The district court preliminarily enjoined the university from continuing the suspension, although the Eleventh Circuit stayed the injunction pending appeal. The parties have briefed the appeal (without mentioning Younger) and I believe oral argument is upcoming. Perhaps because Damsky sued and got the PI immediately after he was suspended and barred from campus, before any disciplinary proceedings began.

Threats

FIU Police arrested a student in April for making threats when she joked in a What’sApp chat on the eve of a student capstone program, “Netanyahu, if you can hear me, drop some bonbons for us capstone students in Ocean Bank Convention Center.” A state court judge set bond at $ 5000 and indicated she viewed this t as an attempted threat that an objective person would not find to be a joke (even if the student believed she was joking). Given the Netanyahu reference (which apes Trump’s call to Russia in 2o16), it is hard to conclude that the student or a reasonable listener would take this as a true threat and not a joke. The student’s public defender is teeing up First Amendment arguments and FIRE weighed in with a letter to the university that fell on deaf ears.

Protests

Several students are under university investigation over a silent protest over FIU’s agreement with ICE. They allegedly violated conduct policies by protesting indoors (even silently and non-disruptively) and for refusing to produce ID upon request.

I continue to believe that the speech in the first two cases is protected–none of this can reasonably be understood or intended as a true threat or targeted harassment; it is racist and stupid but not unprotected. The process to that conclusion will take longer than we perhaps would like. As for the third, the university reg (no indoor protests) is content-neutral, although it again reveals the naked insincerity behind “don’t ignore or refuse to listen to speakers you do not like, listen to them and push back,” when even non-disruptive pushback is punished.

1. And for driving under the influence and smoking pot, although not clear how that plays into the group chat. ↩︎

I’ve been looking into this issue. Some Southern states issued bonds to pay Confederate pensions. To some that looked uncomfortably like a Confederate bond, so the Louisiana Attorney General gave an opinion explaining why the pension bonds did not violate Section 4 of the Fourteenth Amendment. He basically said that the bonds were just for veterans or old people; they were not being issued to support insurrection or rebellion.

Not the most persuasive explanation, but I’m still skeptical that 14/4 applies to Trump’s fund. The problem is really the lack of an appropriation in light of the President’s lawsuit against himself.

A former Capitol Police Officer and a current MPD Officer–both of whom helped defend the Capitol on January 6–have sued to stop the creation and implementation of Trump’s $ 1.776b slush fund.

Here is the standing portion of the Complaint:

94. By creating the Anti-Weaponization Fund, funding it, and authorizing claim criteria that will allow it to make payments to, among others, Proud Boys and January 6 rioters, Defendantshave inflicted concrete and cognizable harms on Plaintiffs Dunn and Hodges.
95. The Fund’s mere existence sends a clear and chilling message: those who enact violence in President Trump’s name will not just avoid punishment, they will be rewarded with riches. That message, by itself, substantially increases the already sizeable risk of vigilante
    violence Dunn and Hodges face on a near-daily basis. And it encourages those who are harassing Dunn and Hodges, and sending them death threats, to up the ante.
96. These concrete, imminent injuries, which Defendants have caused, give Plaintiffs standing.
97. And if and when the Fund begins making payments, Plaintiffs’ injuries will compound. In particular, if the rioters who have already accosted Plaintiffs in person on several occasions receive even a fraction of the $1.7 billion, the danger to Plaintiffs is enormous.
98. Payments from the Fund will be used to finance the operations of those who have threatened and tried to kill Plaintiffs. The rioters and paramilitaries who tried to kill Dunn and Hodges on January 6, and who continue to threaten them today, need money for their operations.
99. The January 6 rioters had caches of guns, pepper and bear spray, body armor, tactical gear, and communications equipment. Such sophisticated equipment is expensive to obtain and maintain.
100. Accordingly, many rioters, including members of paramilitary groups, fundraised for their operations before and after January 6, and continue to do so today. Crowdfunding by rioters and their supporters since January 6 has raised at least $5.3 million. And Oath Keepers founder Stewart Rhodes received donations as recently as May 16, 2026. The Fund will make render such fundraising far easier, supplementing online crowdfunding with public financing out of a confidential $1.7 billion slush fund.
101. Earlier this year, on the fifth anniversary of January 6, Enrique Tarrio said that “[t]he thing that I’m searching for is retribution, retaliation.” After briefly disclaiming violence, Tarrio added, “I want them to pay. They made an example out of us, and we need to make an example out of them.”
102. Compensating rioters like Tarrio through the Anti-Weaponization Fund will encourage them to seek that retribution, and furnish them with the resources to bring it about

I doubt this works. The mere existence of a law, rule, or program cannot cause injury. Accepting as true that both officers face daily threats and harassment and risks of vigilante violence, I question whether the promise of money sends a unique message of impunity that incentivizes future threats and violence. As for the risk that insurrectionists will use the proceeds to rearm and engage in future political violence, that risk threatens the public at large. It is not unique or particularized to these plaintiffs (one of whom has retired from law enforcement); their past injures at the hands of January 6 insurrectionists does not establish the risk of unique future injury.

The complaint also takes too narrow a focus by tying standing entirely to payments to January 6-ers. The fund raises many constitutional problems aside from that. Moreover, congressional Republicans are working hard to get Todd Blanche to commit that January 6 people are not eligible.¹ Were Blanche to make that commitment, the asserted injury goes away–the slush fund neither incentivizes nor enables future violence against these plaintiffs.

The suit comes as everyone tries to figure out who has standing, refusing to accept the likely conclusion of “no one.”

1. Yes, it is absurd to believe that payments to January 6 people represents the only problem or even that much of the public will stop caring about this issue so long as one group of bad people cannot recover. But we are talking about Susan Collins here. ↩︎

Fresh off the South Carolina Supreme Court overturning his murder conviction, Alex Murtaugh filed a § 1983 action against Rebecca Hill, the court clerk whose improper influence over the jurors and the deliberation process formed the basis for the court decision (along with some other-acts evidence issues certain to appear on Evidence exams in the fall). He seeks damages in the amount ($ 600k) that he withdrew from his retirement accounts to fund his defense.

The case presents potential puzzles around § 1983 litigation:

State Action: Hill’s formal, legal job under state law was to manage the trial, including caring for and supporting the jury; it did not include holding substantive conversations with jurors. Lindke appears to allow courts to define the formal job at a high level of generality–“to arrest” or to “manage and support the jury”–while allowing cases against specific misuses of that authority, if that misuse enabled the violation (which it did here). But Hill might attempt to argue that her official job did not include talking with jurors about the case, such that her actual authority did not create the violation.

Absolute Immunity: Does Hill enjoy some form of quasi-judicial immunity? Court clerks can claim absolute immunity for functions integral to the operation of the judicial system. Is managing the trial and caring for the jury one such function? It does not involve judgment or discretion, although like filing documents, it is integral to the system in which judges operate. Another way to frame this: Ask whether this a case in which Hill exceeded her authority in managing the jury (immune) or in complete absence of authority in speaking to jurors about the case (not immune). Again, the level of generality will control. Hill’s motive in attempting to push the jurors towards conviction (she wanted to write a book about the case) is irrelevant.

Qualified Immunity: It seems unlikely there is SCOTUS or Fourth Circuit precedent with materially similar facts. Or that there is a substantial amount of case law from elsewhere with similar facts. Is the misconduct here obvious, requiring no similar precedent? Does the fact that this was a deliberative act rather than a split-second decision change the QI calculus (some argue it should). [Update: The South Carolina Supreme Court cited Parker v. Gladden, a case involving improper communications by the bailiff shepherding the sequestered jury. Close enough?]

Heck: This is the interesting one. For the moment, Murdaugh has a favorable termination–his conviction was overturned on direct appeal. He filed in the brief moment in which his claim is not barred.

South Carolina intends to reprosecute him (and to pursue capital charges); a new conviction raises some interesting Heck issues. Would a judgment in the § 1983 action (that Hill’s constitutional misconduct caused his initial, vacated conviction) necessarily imply the invalidity of a (later) conviction entered without Hill’s actions? Or would the court look only at the initial conviction, on which Murdaugh received favorable termination (acquittal) and for which he seeks damages arising from Hill’s narrow misconduct? Murdaugh would need to frame his § 1983 action as seeking damages caused by Hill’s msiconduct–the attorney’s fees wasted on that first (successfully resolved) trial. He could not claim injury or damages for his overall prosecution, which resulted in conviction. That is, Hill violated his rights in a discreet manner in the first trial; that violation and injury remains regardless of what happens in the second criminal trial.¹

I would expect the federal court to stay the civil action pending resolution of the new prosecution–to avoid conflicting and competing litigation obligations on Murdaugh, to see how the result of the prosecution affects Heck, and to enable meaningful discovery (while the new prosecution is pending, Murdaugh will plead the Fifth in any deposition). Even if Heck requires the federal court to await resolution of the new prosecution, Wallace v. Kato required Murdaugh to file the § 1983 action now. Wallace holds that the limitations period runs when the claim accrues, not when the potential Heck bar goes away. Plaintiffs must file the federal action, then await the outcome in state court.

1. The rough analogy is unreasonable searches. The search can constitute a discrete violation, independent of what happens at trial, although the damages sought must be independent of the conviction. ↩︎

Please let me know if you are interested. I should note separately that I will be the hiring chair at IU-McKinney this Fall. We will be hiring then as well.

The INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications for the position of Lecturer and Director of Academic and Bar Success Program (ABS). The position is a full-time, 12-month, non-tenure-track position. The salary range for this position, commensurate with experience, is between $90,000 and $115,000, plus benefits. In addition, a generous professional development fund will be available. The workload allocation for this position is 40% administrative and 60% teaching.
Essential functions of the position include:

• Oversee the Academic Success Program
• Develop and oversee the Bar Support Program
• Supervise the Associate Director of the ABS and oversee the program budget
• Teaching 2 classes per semester

The successful candidate will have the opportunity to be promoted to Senior Lecturer with long-term appointment status following a probationary period.

The culture and academic environment of IU McKinney and IU Indianapolis are central to our mission. We are committed to excellence in teaching, research, and service. All faculty members adhere to Indiana University’s Principles of Ethical Conduct and Academic Appointee Responsibilities and Conduct, and support the Code of Student Rights, Responsibilities, and Conduct, including fostering an environment where a broad range of ideas and perspectives can be explored. Active faculty engagement on campus plays a vital role in supporting our students, contributing to school initiatives, and sustaining our academic community. Requests for remote work must demonstrate benefit to the school, be approved by the dean each semester, and follow the school’s documentation procedures.

As the state’s premier urban research institution, IU Indianapolis is committed to being a welcoming campus community, and we seek candidates whose research, teaching, and community engagement efforts contribute to robust learning and working environments for all students, staff, and faculty.

Interested candidates should submit a CV and cover letter to [add link]. Individuals who require a reasonable accommodation to participate in the application process should provide adequate notice. The application deadline is June 5, although applications will be reviewed on a rolling basis.

SCOTUS’s Orders List included GVR’s in Bd. of Election Comm’rs v. NAACP and Turtle Mountain Band v. Howe, for reconsideration in light of Callais.

This is bizarre. Both cases presented the question of whether VRA § 2 allowed for private enforcement. The Fifth Circuit in NAACP said the statute includes an implied private right of action. The Eighth Circuit held in 2023 that the VRA did not, then held in Turtle Mountain Band that plaintiffs also could not enforce § 2 via a § 1983 “and laws” action. The underlying question is the same for all–whether § 2 includes “rights-creating language.” Whatever remains of § 2 after Callais, the provision creates rights to be free from racially discriminatory voting rules. And the § 1983/implied rights question goes to whether private plaintiffs can bring claims, regardless of whether those claims succeed.

Justice Jackson alone dissented, arguing that Callais does not address the VRA’s private enforceability.

The new Courts Law essay comes from Suzette Malveaux (Washington & Lee) reviewing Mila Sohoni, In CASA You Missed It, 78 Stan. L. Rev. (forthcoming 2026), describing all the judicial power left after CASA.

Our general disagreements about universal remedies notwithstanding, I agree with and cite to Mila’s article in Constitutional Litigation after Trump v. CASA, about to be published in the Duke Journal of Constitutional Law.