Go Cavs.

Much of the reasoning in NY Times v. Sullivan turned on the insight that letting public officials sue for defamation on common law liability standards rhymed with seditious libel. The Court was right, but the insight carries further than requiring public officials to plead and prove actual malice.

Without committing to specific numbers, a federal anti-SLAPP law for high-government officials should clearly be on the agenda of the next sentient Congress.

As I was saying.

Go Cavs.

brother we’re banning football during Woke 2

My kingdom for a country that cared about the NBA as much as the NFL.

My take on Chiles:

The “competitive” in competitive authoritarianism means pro-democratic parties can win elections, even on a tilted playing field. It’s a set of arrangements that depends on fear and despair. It is not inevitable.

And there it is: Tisza projected to win a supermajority with 135 seats, necessary to change the Constitution and revert many of Fidesz policies

To scholars of democratic backsliding, it is difficult to overstate how big a deal today's election in Hungary, a country of less than 10 million people, is likely to be as a narrative milestone for our age, regardless of which way it goes.

Spontaneously teared up when Integrity first established communication after the blackout period.

I'm delighted to work with UCLA Law Review @uclalawreview.bsky.social to publish Skrmetti's Shell Game. Here's an updated version of the article with more discussion of how lower courts are interpreting that case. papers.ssrn.com/sol3/papers....

In all seriousness, I think the President of the United States having an online presence like this presents an actual public health concern.

What can a monster-hunting comic tell us about American law, racial terror, and justice? A lot. My wife @ebonyt_phd’s passion for “Bitter Root” sent me down this rabbit hole. I came out with a new essay on how art reveals what legal scholarship can't. www.currentaffairs.org/news/bitter-...

Everyone offer condolences to @kalish.bsky.social who had to condense my forty minute screed about first amendment doctrine into some important points moving forward from Chiles

2016's "take Trump seriously but not literally" propaganda helped engender the very political unreality in which it's even *conceivable* to downplay the gravity of today's statement. I don't think discourse is autonomous, but if the propaganda's popularizers were capable of shame...

3/2 At some point, the answer to rampant lawlessness can't come from within the realm of law.

Apart from those rooting for Michigan, I can't imagine anyone had a good time watching that game.

Adding this one to the pile

Brian is great, and this is a great podcast. I had a really good time chatting with him on Ipse Dixit, and I think basically anyone would.

I've just uploaded an updated draft to SSRN. If you're interested in free speech, democratic backsliding, and the capacity of courts to protect the former amidst the latter, take a look. I'm open to feedback and grateful for any engagement!

South Carolina upset Connecticut, but not as much as Dawn Staley upset Geno Auriemma: defector.com/south-caroli...

Just fairly straightforward contempt for the basic proposition that the people, whether there or here, should be able to democratically decide for themselves.

I'm going to sound like a broken record, but I think it's important: this is a high school debate tactic. You cherry-pick and decontextualize evidence, even to the end of misrepresenting sources or flatly lying about them, so long as doing so helps your argument. Strategically, this makes sense.

When the birthright citizenship decision comes out, people will say it could never have gone any other way, that the law was obvious. But the mere fact that SCOTUS took on the case is evidence enough that we are living in a time of democratic precarity.

Don't get me wrong: I'm relieved that this case is shaping up as either 8-1 or 7-2 against the Trump executive order. But the case is a gift to the Supreme Court. By rejecting an outlandish position, it will earn credibility as apolitical, even as the Overton window moves far to the right.

I just can't get over this bit from Becerra, which I think all but guaranteed today's outcome. The speech of state-licensed professionals, speech upon which clients materially rely, is simply no different than, say, speech on political issues uttered in a public forum. Really?

A related but separate point: as the Court squeezes Stevens's low value, "historical" speech categories for all they're worth, claiming a straightforward, principled fidelity to history, it gets free speech history wrong over and over again.

I heard that this book was in the works while watching a panel recording a year or two ago and have been looking forward to it since. Exciting and sure to be great!

This is excellent. Two meta-comments: 1) The essay is excellently lawyered (analytically clear, organized). I take this as a second-order defense of legal analysis in political struggles. 2) It is also resolutely pragmatic without being moderate. These are vital virtues to hold together these days.

The final version of Constitutional Democracy in Crisis? II is now at Oxford University Press. The most comprehensive study of democratic decline and resilience. Thanks to Mark Tushnet, Sandy Levinson, and Antonia Baraggia. All publicity is good. TOC here. balkin.blogspot.com/2026/03/cons...

There's a long, bad journalistic tradition: All conservative grass-roots political movements are fascinating heartland phenomena, all progressive grass-roots political movements are ineffectual bleating. This one is written off as powered by white female college grads--the wine-moms slur, basically.

He quotes a conservative activist: "What really motivated the Tea Party was a deep, philosophical disagreement with Obama about what government should be." Yeah, if there's anything I remember about the Tea Party, it's all the deep philosophers. Were they the ones holding "Go Back to Africa" signs?

Protests too small: No one wants to protest anymore, I guess you never really cared Protests too big: This is silly, what do you all think you're accomplishing Protests just right: I stapled teabags to my hat and cried because Obama wanted to give people cell phones

Now on SSRN: The working draft of my newest article, "Defendant Pinching & Pressing," which is forthcoming in the @washulawreview.bsky.social. papers.ssrn.com/sol3/papers.... This is a non-final draft. Comments are very much welcome.

Actually, there is no plausible argument that we live under the same political regime as in 1789.

FWIW I assigned this as well. papers.ssrn.com/sol3/papers....

Sometimes academic conversation and the online discourse popping off are the same thing!

Trying to figure out how to be on this website consistent with my deeper interests and desires—seeing scholarship, other writing, academic conversation—without having to navigate whatever fraught, online discourse is popping off that day. Do I just have to unfollow a bunch of people (who I like)?

Drop a movie that traumatized you as a kid

I got partially duped by a phishing attempt where my law school's dean "needed me to go to Wal-Mart" (look, this is where I caught on, okay) and now I get at least three scam calls per day, including ones that wake me up incredibly early.

yes. haha, YES!

I fear I am going to blossom into a full-blown anti-AI crank within the academy. Apologies in advance to everyone I annoy.

I’ve never been much of a March Madness person before … but then, I’ve never had a rooting interest until now.

It's impossible to appreciate the significance of, say, J.D. Vance's plan to visit Hungary in solidarity with Viktor Orban without this context.

Thanks to @lsolum.bsky.social for highlighting my article, First Amendment Coverage in the Immigration Context! I am thrilled to report that the article will be published in Vol. 29 of the University of Pennsylvania Journal of Constitutional Law con.law.

I confess it's unclear to me why David Boies's opinion is newsworthy. This isn't even a knock on Boies specifically. I love my grandma, but if the New Yorker solicited her takes on Iran I'd be perplexed.

Chilling effects, if not the most severe, might be the most distinctive challenge to free speech under the second Trump administration. This is an exceedingly timely book from someone who's been working on the topic for years, and I'm excited to learn from it.