From Rockett v. Eighmy, decided today by Eighth Circuit Judge David Stras, joined by Judges Bobby Shepherd and Jane Kelly:

When Judge Eric Eighmy had courthouse officers lock two children in holding cells because they refused to leave with their mother following a custody hearing, he violated their clearly established Fourth Amendment rights….

Bart Rockett and Kami Ballard divorced in Missouri, but initially stayed together to give their two kids, who were "aspiring stars," a chance to "make it big" in Los Angeles.  The children found some success in the entertainment industry, including appearing on America's Got Talent, but their parents eventually split up.

Ballard filed a petition for sole custody that landed on Judge Eighmy's desk. During a hearing several months later, the children waited outside the courtroom while their parents tried to work it out. They agreed on primary custody for Ballard, with Rockett responsible for them at the beginning of each month and "during TV pilot season."

Once the hearing was over, however, neither child was willing to leave with her. With an argument unfolding in the lobby of the courthouse, Judge Eighmy walked over, introduced himself to the children, and told them to follow him to a conference room. Once there, he informed them that they had no choice but to leave with her. A youth counselor then reinforced the point by telling them that they "ha[d] to listen to the judge." The children would not budge, even after the judge mentioned that the other option was foster care.

Frustrated, Judge Eighmy had the children follow him again, this time to a waiting area in the courthouse's juvenile division. Once there, he told someone to "[k]eep an eye on" them to "make sure they [did not] go anywhere." After disappearing for a few minutes, he led them down a hallway to two holding cells. A second threat to place them in foster care made no difference, so he had a juvenile officer "lock them up." Before they entered the cells, the officer patted them down and ordered them to remove their socks and shoes. Judge Eighmy stood by as the officer locked the doors behind them.

With the children in their separate holding cells, Judge Eighmy took a seat in a nearby office. After what "felt like forever," the officer opened the cell doors for Judge Eighmy, who asked them one more time whether they would leave with their mother. This time, they both nodded yes, so he let them go. From start to finish, the time spent in the holding-cell area was between twenty and forty minutes.

Following these events, Rockett sued in federal district court for, among other things, a violation of the children's Fourth Amendment rights…. [T]he jury awarded the children $5,000 each on their Fourth Amendment claims. From there, the district court declined to reduce the verdict and added $326,637.22 in attorney fees….

The procedural posture is a bit complicated, but the court denied both judicial immunity (based on an earlier panel decision on the issue) and qualified immunity:

Judge Eighmy violated the Fourth Amendment only if he seized the children and did so unreasonably. Locking the children up after the custody hearing was both….

Not every seizure … violates the Fourth Amendment. To the contrary, "[ ]reasonable" ones, like lawful arrests supported by probable cause, do not. But here, Judge Eighmy did not have "probable cause to believe that [the children had] committed" an offense, much less one that justified placing them in a holding cell. Rather, their only misdeed was one every parent knows well: resisting authority. Even in the context of legal-custody proceedings, refusing to leave with a parent is not a jailable offense. Nor were there "exigent circumstances" arising out of danger to themselves or others.

We have no doubt that Judge Eighmy believed he was acting in "good faith," and possibly even in the children's best interests, by detaining them. But good faith in the Fourth Amendment context is about reasonable reliance, either on binding appellate precedent or a warrant issued by a "neutral magistrate." Neither was present here. No case allows a judge to detain children in a holding cell when they refuse to leave with a parent. And a custody plan is no substitute for a warrant. In short, rough justice does not trump the Constitution….

The law in this area was also "clearly established." "[I]t would have been sufficiently clear [to] every reasonable official," Judge Eighmy included, that locking up two children for refusing to follow directions violated the Fourth Amendment. As we put it over a decade and a half ago, long before the events in this case, "[i]t is clearly established that a warrantless arrest, unsupported by probable cause, violates the Fourth Amendment." …

A reasonable judge should have known better. As we said the first time around [i.e., the first time the case went up on appeal], criminal contempt was off the table because the children were neither parties to the custody case nor present inside the courtroom. Nor could the power to punish a party for violating an injunction have provided the justification, given that Judge Eighmy never issued one….

And here's an excerpt from the 2023 decision denying judicial immunity (a separate question from qualified immunity):

Judicial immunity has been around a long time. See Yates v. Lansing (N.Y. Sup. Ct. 1810) ("The doctrine which holds a judge exempt from a civil suit or indictment, for any act done, or omitted to be done by him, sitting as judge, has a deep root in the common law."), aff'd (N.Y. 1811). In England, it served to insulate common-law judges on the King's courts from their rivals on other courts.

One of the earliest known examples involved a judge who presided over a murder trial. After it ended, he was dragged into a rival court and charged with conspiracy for his role. The prosecution ended, however, when the court recognized that the judge was "immune from prosecution … for [his] judicial act[]." …

As broad as the rule seemed to be, two exceptions narrowed its scope. The first was that judges could still be prosecuted for out-of-court "conspirac[ies]." That is, like any other citizen, judges could be haled into court for any illegal acts they committed outside the courtroom. The second was that, when judges "exceeded their authority" by considering a matter "not within their jurisdiction," their actions were … "without jurisdiction." Acting without "power and authority" eliminated the shield of judicial immunity.

As judicial rivalries began to wane, including in the American colonies, the power-and-authority rationale for judicial immunity did too. The focus shifted to protecting judicial independence: allowing judges "to act upon [their] own convictions, without apprehension of personal consequences." See Pierson v. Ray (1967) (explaining that judges "should not have to fear that unsatisfied litigants may hound [them] with litigation charging malice or corruption").

Judicial immunity continues to apply today, not only in prosecutions …, but in civil-rights actions brought under 42 U.S.C. § 1983…. The exceptions remain largely the same too. Judicial immunity can be "overcome in only two sets of circumstances": (1) when a judge takes "nonjudicial actions"; and (2) when the action is judicial, but is done "in the complete absence of all jurisdiction." …

On one end of the spectrum [of judicial action to nonjudicial action], the classic example of a judicial act is "resolving disputes between parties who have invoked the jurisdiction of a court." Other related acts qualify too, like holding litigants "in contempt," and issuing "search warrant[s]."

But those acts also have their limits. There is no doubt, for example, that judges can "direct[] police officers to bring counsel in a pending case before the court," but they cannot order the officers to beat them with their nightsticks along the way. Nor can judges wake up one day and decide to spontaneously issue a search warrant against a nosy neighbor or a political rival.

Like these examples, Judge Eighmy's decision to personally escort the kids to jail took what would otherwise be a judicial act too far. Judges have the authority to order an officer or a bailiff to escort an unruly litigant to jail. They can also pull the parties into a conference room to discuss what just happened in court.

Judge Eighmy crossed the line, however, when he personally escorted the kids to jail, stood there while they removed their clothes and belongings, and personally came back an hour later to release them. For one thing, the children were not even present in the courtroom, so he could not hold them in contempt for "[d]isorderly, contemptuous or insolent behavior." For another, judges do not do double duty as jailers. So even assuming Judge Eighmy could have ordered someone else to take the kids to jail, he could not put them there himself.

It is no answer that Judge Eighmy believes he was exercising his contempt power. To be sure, absolute immunity is available for judges who hold a litigant in contempt even when they are "not in [their] … robes, … no[r] in the courtroom itself." But here, the children were never parties, they never stepped foot in the courtroom, and Judge Eighmy personally locked them up himself. We have been unable to find any case that extends judicial immunity so far.

Judge Eighmy fares no better with his other argument: that Missouri law allows judges to enforce child-welfare statutes informally. Without question, police officers can take children into custody if they are behaving in a way "injurious to [their] welfare or to the welfare of others." But not judges, who can only order others to "[t]ake charge of children before and after" a juvenile hearing. The point is that judicial immunity is unavailable because what Judge Eighmy did is not "a function normally performed by a judge." …

Thanks to James Creigh for the pointer.

The post No Immunity for Judge Who Locked Children in Holding Cells in Custody Case appeared first on Reason Magazine.

Starting next week, Pennsylvania will begin enforcing a law prohibiting the sale of e-cigarettes that have not been explicitly approved by the state. Supporters argue that it will protect public health, but it seems likely to do the opposite by preventing many former smokers from accessing the products that helped them quit.

Under the law, known as ACT 57, there are currently just six manufacturers of electronic nicotine delivery systems on the approved list that can be sold in the Keystone State, meaning many popular vaping products will be forcibly removed from shelves on October 19. Retailers who violate this law will face fines of $500 for each unapproved product. A second violation within a year will result in a civil penalty of between $750 and $1,000 per day per product, and a suspension of the dealer's license for at least 14 days. A shop's third violation within a year would result in a civil penalty of $1,000 to $1,500 per day per product, and the revocation of its license.

Politicians are touting this law as the latest way to protect the public, and of course, they claim it will especially protect children. "This law is about keeping harmful products out of the hands of both children and adults who may not realize what they are consuming," said Pennsylvania Attorney General Dave Sunday.

"I applaud the legislature for their bipartisan support of Act 57 to provide this important public health safety measure to the Commonwealth."

However, not all Pennsylvania residents are enthusiastic about the law's enforcement.

"This will be largely catastrophic," Chris Hughes, the former owner of Fat Cat Vapor Shop in Williamsport, Pennsylvania, tells Reason. Hughes predicts that the restrictions will encourage consumers to purchase vaping products across state lines, creating an illicit market. "Some people that are enterprising will drive across the border to Ohio [or] West Virginia, and bring a lot of products back and sell them to other people," he says.

Hughes is right to assume that the law will create an illicit market for vaping. In June, JAMA Network Open published a report on Alabama, Oklahoma, and Louisiana—three other states with constraints similar to Pennsylvania—finding that the restrictions were not associated with lasting reductions in e-cigarette nicotine sales. By the end of April 2025, products not listed in the states' approved directories accounted for 92.1 percent of measured e-cigarette nicotine sales in Alabama, 53.6 percent in Oklahoma, and 52.3 percent in Louisiana.

For people living further from the border, Hughes says that "a lot of them will return to smoking." "Half of those people will die prematurely from smoking.…It's a tragedy, really."

Indeed, evidence shows vaping to be one of the most effective tools to quit smoking. A 2024 study published by the Centers for Disease Control and Prevention found that in 2021–2022 alone, approximately 1.2 million American adults used e-cigarettes to help them quit smoking for at least six months, representing slightly more than 40 percent of all adults who successfully quit during that period. Meanwhile, a 2026 review from Cochrane, a global health nonprofit, found that smokers are more likely to quit when using e-cigarettes than with nicotine replacement therapy: 8 percent to 10 percent of smokers using e-cigarettes may successfully quit, compared with just 6 percent using nicotine-replacement therapy.

The impending restrictions have Pennsylvania vapers stockpiling products. Hughes says he has delayed paying his property taxes to make sure he has "two to three years' worth of e-liquid and coils while this shakes out." He also spoke to an employee at a vape shop recently who told him about a customer spending $500 on e-liquid after learning about the impending ban.

For vape shop owners across Pennsylvania, the new law will make business even more difficult. Hughes was forced to close down Fat Cat Vapor Shop in Williamsport after Pennsylvania introduced a 40 percent wholesale tax on vaping products in 2016. "The whole goal of my opening the business was to help get adult smokers off of cigarettes and transition them to something that I knew for a fact was much less harmful," he says. Hughes estimates that his shop helped approximately 8,000 adults quit smoking during its three years in business.

Now, he fears other independent vape shops will suffer the same fate as his own. "Most, if not all of them, will be bankrupted," Hughes warns. "It almost takes my breath away. I'm not even sure what to say."

Pennsylvania lawmakers may intend to protect public health, but their new law risks pushing adults away from healthier lifestyle choices. As is often the case, the government restricting the choices adults are allowed to make for themselves is likely to have deadly consequences.

The post Will Pennsylvania's Vape Ban Create More Cigarette Smokers? appeared first on Reason Magazine.

Shane Gillis is an actor and comedian. He first came to my attention in September 2019, when he was hired to be a new cast member on Saturday Night Live—and then abruptly fired after it was revealed that he had (gasp) told offensive jokes. (SNL creator Lorne Michaels subsequently said that the network forced him to fire Gillis, and he thought the whole controversy was stupid.)

Since then, Gillis's career has really taken off, to the extent that he has repeatedly returned to SNL as a guest host. He did so again on October 10, delivering a monologue in which he made the following observation: "I haven't been to the gym in so long, I didn't know women just dress like whores now."

Shane Gillis' monologue! pic.twitter.com/ky6fVtWBx9

— Saturday Night Live (@nbcsnl) October 11, 2026

Some people are really mad about that joke, including the actor Dan Levy, who called Gillis a misogynist and implied that this sort of joke was emboldening men to treat women as objects—and to sexually assault them.

"It's complacency that has created the environment in which women are sexually assaulted," said Levy.

He was not the only one to make this claim. On The View, Sara Haines echoed Levy's criticism and said that such language—the word whore in particular—was demeaning.

"I'm not saying a joke makes an assault, but it makes it much easier to look at another human as an object," she said.

This is unpersuasive.

I might understand why people would take offense if Gillis consistently singled out women for unrelenting abuse. When it comes to humor, context is everything, and a harmless joke can come off as mean-spirited if it seems targeted.

But in that very same monologue, Gillis denigrates men, gay men, his sisters, and himself—repeatedly. He admits that he's fat and ugly. That's the basis of the humor. It does not suggest that he has some problem with women or enjoys laughing at their expense and solely their expense. He's doing observational comedy, and no one is spared, not even Gillis. He even makes a joke about how he might unintentionally come off as threatening to women, because he's a big ugly guy.

It would be weird if women wearing skin-tight clothing at the gym was for some reason an off-limits subject for comedians. Why? It's OK to insult men's appearance, but not women's? Is that really the standard? Of course not.

Indeed, it is trivially easy to find examples of liberal-coded comedians (Gillis is one of those right-coded, anti–political correctness, Joe Rogan types), mocking the appearances of specific women. Jimmy Kimmel's recent monologue went after Katie Zacharia, the Trump administration's new press secretary, for her looks. Kimmel insinuated that she's a dumb blonde who was picked just because she's attractive. He even showed a photo of her at the gym, dressed semi-provocatively!

You know how the left is trying to cancel Shane Gillis for his SNL remarks about women at the gym, well, Jimmy Kimmel puts up a picture of Katie Zacharia at the gym, "Oh, wait, just kidding. This is the new press secretary, former Newsmax commentator Katie Zacharia, seen here,… pic.twitter.com/ANYeqhfVev

— Alex Christy (@alexchristy17) October 13, 2026

Was Kimmel inviting sexual violence against Zacharia? Of course not. It would be ludicrous to pretend that this joke was somehow out of bounds.

The same goes for Gillis, though.

The Hollywood Reporter writes that Gillis's brand of humor just isn't a good fit for SNL, which has become a show by liberals, for liberals, and aimed at skewering the Trump administration. That's fair enough: Personally, I didn't think the Gillis monologue was particularly funny, though I am well-accustomed to consuming SNL in stone-faced silence. I find about 99 percent of the skits are cringe and humorless. It's not for me.

But I do object to the assertion that a one-off joke about the way women dress is out of bounds. I thought we all agreed that Woke 1 was crazy?

The post The Shane Gillis <i>SNL</i> Backlash Is Really Stupid appeared first on Reason Magazine.

Our peer-reviewed Journal of Free Speech Law, which is now five years old, has published over 150 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), Stuart Benjamin (Duke), Andrew Koppelman (Northwestern), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.)

The articles have been cited so far in 11 court cases, over 2000 articles (using Google Scholar counts), and at least 100 briefs. And note that all the articles have only had five years or less to attract these citations.

I expect that many authors are planning to submit articles on free speech to the usual law reviews when the submission cycle restarts in August. But if you submit exclusively to us before that, we will give you an answer within 14 days; and then if you'd like to have it published quickly, we can publish it in within a few months, if it's sufficiently clean and cite-checked by your research assistant. This means your article can be published by us, if it's accepted, almost a year (or more) before it would be published by the law journals.

Of course, also please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.

All submissions must be exclusive to us, but, again, you'll have an answer within 14 days, so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:

• Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it's the first article to discuss how case X and doctrine Y interact), please let us know.
• Please submit articles single-spaced, in a proportionally spaced font.
• Please make sure that the Introduction quickly and clearly explains the main claims you are making.
• Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go).
• Each article should be as short as possible, and as long as necessary.
• Like everyone else, we like simple, clear, engaging writing.
• We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.

We publish:

1. Articles that say something we don't already know.
2. Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise.
3. Articles dealing with speech, press, assembly, petition, or expression more broadly.
4. Generally not articles purely focused on the Free Exercise Clause or Establishment Clause, except if they also substantially discuss religious speech.
5. Articles about the First Amendment, state constitutional free speech provisions, federal and state statutes, common-law rules, and regulations protecting or restricting speech, or private organizations' speech regulations.
6. Articles about U.S. law, foreign law, comparative law, or international law.
7. Both big, ambitious work and narrower material.
8. Articles that are useful to the academy, to the bench, or to the bar (or if possible, to all three).
9. Articles arguing for broader speech protection, narrower speech protection, or anything else.

The post Submit Your Articles to the Journal of Free Speech Law, Before You Circulate Them to the Law Reviews appeared first on Reason Magazine.

Kimberly Guilfoyle today resigned from her position as the U.S. ambassador to Greece shortly after the White House confirmed that President Donald Trump had asked her to do so. The main provocation seems to have been Guilfoyle's alleged influence peddling, which reportedly featured a request that Republican donor Eric Deters pay off her $100,000 American Express bill, in exchange for which she promised him special access to "Trump world."

The president signaled his displeasure on Monday, saying "we're looking at" axing Guilfoyle, his son's former girlfriend, because "we're not happy." On Tuesday, Trump added that "we didn't like what we were reading." That reaction is not surprising, since Guilfoyle would have been horning in on Trump's territory by trying to sell access and use her office for personal gain. That's his thing.

Consider Trump's attempts to promote the memecoin that he launched three days before beginning his second term. That April, the top 220 $TRUMP holders were invited to "an intimate private dinner" with the president on May 22. The "top 25 coin holders" were promised "an Exclusive Reception before Dinner with YOUR FAVORITE PRESIDENT," plus a "Special VIP Tour" of the White House the next day. The coin's price, which after an initial surge had fallen dramatically since Inauguration Day, rose by more than 50 percent immediately after that announcement.

"Since the announcement, crypto investors around the world have raced to expand their holdings of $TRUMP," The New York Times reported 10 days before the dinner. "Certain buyers, in interviews and statements, have said they bought the coins or entered the dinner contest with the intention of securing an action by Mr. Trump to affect United States policy."

NBC reported that the coin investors who attended the dinner, which was held at the Trump National Golf Club in Sterling, Virginia, had collectively spent $394 million on $TRUMP. On average, that worked out to about $1.8 million a plate.

"This is my president that we're talking about, but I am willing to say that this gives me pause," Sen. Cynthia Lummis (R–Wyo.) said a few weeks before the dinner. "In abstract," Sen. Thom Tillis (R–N.C.) allowed, the event "is hard to understand." Sen. Lisa Murkowski (R–Alaska) drew an analogy: "I don't think it would be appropriate for me to charge people to come into the Capitol and take a tour."

Donald Sherman, executive director of Citizens for Responsibility and Ethics in Washington, was blunter. "This is one of the most blatant and appalling instances of selling access to the presidency I've ever seen," he said.

Compared to that episode, the controversy over the income that Trump's hotel in Washington, D.C., received from influence seekers during his first term might seem tame. But it raised similar ethical questions, albeit in a slightly more subtle way.

The Trump International Hotel's customers included Republican political organizations and a long list of trade groups, such as the National Mining Association, the Independent Petroleum Association of America, the National Confectioners Association, and the Vapor Technology Association, whose interests might be served by currying favor with the president. The hotel also attracted business from the governments of foreign countries, such as Kuwait, Bahrain, Saudi Arabia, Azerbaijan, Malaysia, and Romania, that likewise may have been investing in Trump's good will.

"Believe me, all the delegations will go there," a "Middle Eastern diplomat" told The Washington Post after Trump's election. "Why wouldn't I stay at his hotel blocks from the White House, so I can tell the new president, 'I love your new hotel!'" an "Asian diplomat" said. "Isn't it rude to come to his city and say, 'I am staying at your competitor'?" The Embassy of Kuwait, which had previously held its annual National Day celebration at the Four Seasons, reportedly canceled its reservation there and switched to the president-elect's hotel under pressure from the Trump Organization.

Trump saw no problem with any of this. "The law is totally on my side," he told The New York Times in November 2016. "The president can't have a conflict of interest." He reiterated that take at a press conference nine days before his inauguration. "I have a no-conflict situation because I'm president," he said.

Trump nevertheless said he would donate the profits from money spent by foreign governments at his hotels to the U.S. Treasury. But that solution did not address the money he was taking in from various domestic interest groups or his ability to enrich himself by encouraging Republican organizations or other federal officials to patronize his businesses.

One example of the latter: Vice President Mike Pence and his party stayed at Trump's golf resort in Doonbeg, Ireland, during an official trip in 2019. Although Trump insisted he "had nothing to do" with that decision, critics perceived a violation of the Domestic Emoluments Clause, which says the president may not receive additional compensation from the federal government beyond his official salary.

Trump later said he regretted his attempts to address conflicts of interest during his first term, including his promise that the Trump Organization would avoid new foreign business deals. "I prohibited [my sons] from doing business in my first term, and I got absolutely no credit for it," he told The New York Times 12 days before his second inauguration. "I didn't have to do that, and it's really unfair to them." The lesson he drew was that "nobody cared."

Consistent with that assessment, Trump has thrown all caution to the wind during his second term, capitalizing on his position to rake in millions of dollars by hawking all manner of presidentially branded merchandise, ranging from bibles to cologne; obtain a $400 million "palace in the sky" from the government of Qatar; extort $1 billion in pro bono legal work from disfavored law firms; earn billions from the same cryptocurrency industry he was simultaneously deregulating; and arrange a sweet IRS immunity deal that could save him more than $100 million in back taxes, interest, and penalties. Any worries about unseemly profiteering by Trump's family are long gone, as evidenced by federal contracts with businesses backed by his sons and highly lucrative foreign deals negotiated by his son-in-law.

Compared to all of that, the $100,000 that Guilfoyle allegedly sought in exchange for using her influence with the Trump administration to help Deters looks like pocket change. Her real sin, one suspects, was failing to offer her boss a piece of the action.

The post Trump Fired Kimberly Guilfoyle for Influence Peddling That Pales Next to His Presidential Profiteering appeared first on Reason Magazine.