Author: TSA Press

WASHINGTON
—

Defense
Department
personnel
will
now
have
to
coordinate
all
interactions
with
Congress
through
the
Pentagon’s
central
legislative
affairs
office,
according
to
a
memo
obtained
by
Breaking
Defense
—
a
change
in
policy
that

could
further

curb
the
flow
of
information
streaming
from
the
department
to
Capitol
Hill.

In
the
Oct.
15
memo,
Defense
Secretary
Pete
Hegseth
and
Deputy
Defense
Secretary
Steve
Feinberg
direct
Defense
Department
personnel
—
with
the
exception
of
the
Pentagon’s
inspector
general
office
—
to
coordinate
with
the
office
of
the
assistant
secretary
of
defense
for
legislative
affairs
for
all
engagements
and
communication
with
Congress
and
state
elected
officials.

“The
Department
of
War
(DoW)
relies
on
a
collaborative
and
close
partnership
with
Congress
to
achieve
our
legislative
goals.
This
requires
coordination
and
alignment
of
Department
messaging
when
engaging
with
Congress
to
ensure
consistency
and
support
for
the
Department’s
priorities
to
re-establish
deterrence,
rebuild
our
military,
and
revive
the
warrior
ethos,”
Hegseth
and
Feinberg
wrote
in
the
memo,
which
uses
a
secondary
name
for
the
Defense
Department.

“Unauthorized
engagements
with
Congress
by
DoW
personnel
acting
in
their
official
capacity,
no
matter
how
well-intentioned,
may
undermine
Department-wide
priorities
critical
to
achieving
our
legislative
objectives,”
Hegseth
and
Feinberg
wrote
later
in
the
memo.

Under
the
terms
of
the
directive,
all
interactions
between
Defense
Department
personnel
and
Congress
or
state
elected
officials,
including
those
outside
of
the
national
capital
region,
require
approval
from
the
Pentagon’s
legislative
affairs
office.
Communication
with
Capitol
Hill
—
including
congressional
reporting
requirements,
requests
for
information,
drafting
and
technical
assistance
and
legislative
correspondence
—
must
also
be
routed
through
the
office.

The
directive
is
a
shift
from
previous
policy,
which
allowed
the
military
services,
combatant
commands
and
other
Defense
Department
agencies
to
manage
their
own
interactions
with
Congress
—
with
senior
leaders
for
those
organizations
often
driving
the
level
of
engagement
on
Capitol
Hill

and
each
service
having
its
own
legislative
affairs
team.

Rep.
George
Whitesides,
D-Calif,
a
member
of
the
House
Armed
Services
Committee,
told
Breaking
Defense
that
the
move
is
unlikely
to
be
received
well
on
Capitol
Hill.

“Congress
decides
who
Congress
will
talk
to,
and
the
continued
efforts
of
the
secretary
to
wall
off
the
department
is
not
consistent
with
past
tradition,
and
I
frankly
don’t
think
it’ll
fly
with
the
members
or
leaders
of
the
committee,”
he
said.

One
congressional
aide
told
Breaking
Defense
that
the
new
policy
“could
potentially
backfire”
on
the
department,
especially
as
Congress
hammers
out
details
of
the
fiscal
2026
National
Defense
Authorization
Act
and
the
corresponding
appropriations
bill.
Sometimes,
the
staff
writing
those
bills
need
information
from
the
Pentagon,
military
services
or
combatant
commands
“within
minutes.”
If
those
details
need
to
be
cleared
by
the
Pentagon’s
main
legislative
affairs
office,
they
may
not
arrive
in
time
to
impact
pending
legislation
and
may
result
in
language
that
adversely
impacts
the
military,
the
aide
said.

After
publication,
Chief
Pentagon
Spokesman
Sean
Parnell
said
in
a
statement
that
the
memo
is
a
“pragmatic
step”
to
internally
review
the
department’s
processes
for
communicating
with
Congress.

“The
Department
intends
to
improve
accuracy
and
responsiveness
in
communicating
with
the
Congress
to
facilitate
increased
transparency.
This
review
is
for
processes
internal
to
the
Department
and
does
not
change
how
or
from
whom
Congress
receives
information,”
he
said.

The
memo
applies
to
senior
department
leaders,
the
chairman
of
the
Joint
Chiefs
of
Staff
and
the
Joint
Staff,
combatant
command
heads,
service
secretaries
and
chiefs,
directors
of
Defense
Department
agencies,
and
congressional
affairs
officials,
amongst
others.

However,
the
directive
does
not
limit
the
authorities
of
the
Pentagon’s
comptroller,
with
the
memo
noting
that
the
comptroller’s
budget
and
appropriations
affairs
office
will
continue
to
service
as
the
principal
legislative
liaison
for
the
appropriations
committees
and
the
Congressional
Budget
Office.
The
authorities
of
the
Pentagon’s
general
counsel
also
remain
unchanged,
and
servicemembers
and
department
employees
still
retain
whistleblower
protections
and
other
rights
granted
by
law
to
communicate
with
Congress,
the
memo
states.

In
addition
to
the
new
restrictions
on
congressional
interaction,
Hegseth
and
Feinberg
have
ordered
the
Pentagon’s
assistant
secretary
of
legislative
affairs
to
conduct
a
comprehensive
review
of
the
department’s
interactions
with
Congress.
That
report,
which
is
expected
in
90
days,
should
address
“current
issues,
inefficiencies
or
misalignments
in
congressional
engagement
processes”
and
include
proposals
to
“streamline
activities”
and
“enhance
compliance”
in
the
realm
of
congressional
affairs,
the
memo
stated.

The
memo
authorizes
the
legislative
affairs
office
to
form
working
groups
across
the
department
to
support
the
ongoing
review.
Meanwhile,
Pentagon
component
heads
and
principal
staff
assistants
have
been
given
30
days
to
provide
contact
information
for
the
personnel
supporting
legislative
affairs,
organizational
charts
showcasing
roles
and
responsibilities,
and
information
on
tools
used
to
track
congressional
engagements.

Updated
10/21/2025
at
8:50
p.m.
ET
with
a
statement
from
Chief
Pentagon
Spokesman
Sean
Parnell
.

Ashley
Roque
contributed
to
this
report.

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at
indoctrination,
but
they
make
some
very
good
points!
What’s
The
Grass
Like
In
There?:
Make
sure
you
answer
our
in-house
questionnaire!

Ed.
Note:
Welcome
to
our
daily
feature

Trivia
Question
of
the
Day!

Who
was
the
first
Supreme
Court
justice
to
serve
on
the
Court
with
the
justice
they
previously
clerked
for?

Hint:
The
Judicial
Oath
was
administered
to
the
justice-designate
by
that
justice.

See
the
answer
on
the
next
page.

This
year,
“agentic”
became
the
sexiest
buzzword
to
hit
vendor
PowerPoints.
It’s
everywhere
from
specific
products
to
the

era
itself.
At
times,
it
seems
that
no
copy
can
leave
the
door
without
the
word
“agentic”
crammed
in
there,
despite
it
hitting
the
ear
with
roughly
the
same
credibility
as
“putting
the
law
on
the
blockchain”
or
“building
a
metaverse
practice.”

And
then,
Clio
did
something
remarkable
at
its
2025
conference:
it
didn’t
say
it.

Much
like
jazz,
sometimes
the
most
important
part
of
a
conference
is
what
you

don’t
say.
As
CEO
Jack
Newton
unveiled
an
ambitious
future
for
the
company’s
plan
to
take
on
the
world
as
a

more
or
less
everything
app
for
lawyers,
he
wasn’t
talking
about
agents.
By
my
count,
Newton
mentioned
the
term
exactly
twice
during
his
keynote,
and
both
times
in
passing
reference
to
broader
industry
trends
as
opposed
to
describing
Clio’s
own
products.
Instead,
he
opted
for
terms
like
“automation”
and
“teammates.”
These
may
seem
like
semantic
differences,
and
to
some
extent
they
are,
but
the
absence
of
agentic
—
the
conscious
omission
of
a
ubiquitous
term
—
says
a
lot
about
Clio’s
strategy
and
engagement
with
its
users.

As
someone
who
has

staked
out
a
position
as
an
aggressive
hater
of
2025’s
most
overrused
empty
signifier,
I
couldn’t
have
been
more
pleased
by
this.

In
the
legal
industry,
the
term
“agentic
AI”
means
one
of
two
things,
and
neither
particularly
useful.
Either
it’s
describing
a
truly
autonomous
system
that
takes
user
goals
and
some
vague
constitutional
guidance
to
chart
out
its
own
workflow
that
it
goes
out
and
pursues
before
delivering
a
final
product.
This
is
what
we
in
the
business
would
call
“malpractice.”
Agentic
can
also
describe
a
series
of
vetted,
cascading
prompts
we’d
otherwise
just
call
“automation”
but
for
Silicon
Valley
gloss.
Mercifully,
most
products
calling
themselves
“agentic”
in
the
legal
space
fall
into
the
latter
category
—
competent
workflow
automation
that
lawyers
would
embrace
if
it
weren’t
wrapped
in
terminology
that
suggests
their
AI
might
go
rogue
and
file
a
motion
without
them.

While
every
other
company
at
legal
tech
conferences
this
year
has
been
tripping
over
themselves
to
hype
their
spin
on
agentic,
Clio
seems
to
have
read
the
room
—
or,
more
precisely,
the

lawyers.
Chief
Product
Officer
John
Foreman,
confirmed
that
this
rhetorical
choice
was
very
much
intentional.
“If
you’re
saying
agentic,
who
are
you
talking
to?”
Foreman
asked.
“Investors?
Certain
media
publications?
What
if
you
want
to
talk
a
solo
lawyer
in
the
audience
that
needs
to
use
this
stuff?
‘Agentic,’
as
a
term,
does
nothing.”

Average
attorneys
don’t
want
to
send
their
work
to
agents.
An
agent
is
someone
you
hire
to
go
out
on
your
behalf
and
get
you
a
better
deal
while
hiding
how
the
sausage
is
made.
They
do
your
work

instead
of
you
and
then
ask
for
10
percent.
A
“teammate”
on
the
other
hand
is
someone
who
works
with
you.
An
associate
or
paralegal
is
someone
who
does
work
for
you
that
you
—
based
on
your
actual
experience
—
then
redline
into
oblivion.

“What
do
agents
do?”
Vice
President
of
Legal
Content
and
Migrations
Chris
Stock
asked.
“Agents
do
stuff
for
you,
but
they
don’t
always
get
it
right.
What
do
members
of
your
team
do?
An
assembled
team
works
together,
they
get
to
the
right
conclusions
together,
they
support
each
other.”

“Human
in
the
loop”
is
the
vogue
pushback
that
agentic
advocates
make,
but
this
is
a
superficial
nod.
You
say
“we’ll
keep
you
in
the
loop”
is
what
you
say
to
the
most
annoying
guy
in
your
group
while
planning
the
after
party.
Lawyers
shouldn’t
be

in
the
loop,
they
should
be
the
center
of
the
whole
conversation.

On
the
surface,
what
most
companies
are
calling
agentic
might
not
differ
from
what’s
being
called
a
teammate,
but
it
carries
a
ton
of
subconscious
baggage.
If
vendors
set
out
to
be
agentic,
the
pressure
is
always
on
them
to
move
more
tasks
behind
the
veil.
But,
as
we’ve
put
it
around
here,
this
“GPT-sus
take
the
wheel”
mentality
just
further
moves
the
lawyer
and
their
professional
judgment
out
of
the
center.
It’s
not
enough
to
“edit
at
the
end,”
because

lawyering
is
an
iterative
process
that
requires
those
breaks
in
the
process
where
the
team
can
—
to
quote
from
the
Bard
—
stop,
collaborate,
and
listen.

A
lot
of
the
magic
happens
when
a
junior
shows
a
senior
the
work-in-progress.
A
system
that
jumps
from
input
to
final
product,
will
still
get
an
edit,
but
it’s
a
different
mental
process
than
engaging
with
work
product
over
and
over
throughout
its
production.
“It’s
all
about
checkpoints,”
Foreman
told
me.
“You’re
not
necessarily
going
after
automating
this
whole
thing
into
a
Rube
Goldberg
machine
of
AI.”
Figuring
out
ways
to
keep
the
AI
actively
leveraged
while
not
losing
the
appropriate
interruption
points
is
a
key
difference
between
thinking
in
agent
vs.
thinking
in
teammate.

This
might
not
impress
investors
and
podcasters
as
much,
but
it
should
make
lawyers
much
more
comfortable.

As
fall
Fridays
go,
the
one
last
week
was
pretty
eventful,
at
least
for
patent
types.
While
I
will
let
the
proverbial
dust
settle
for
a
bit
on
the
big

news
out
of
the
USPTO
regarding
changes
to
the
IPR
scheme,
there
is
no
doubt
that
seismic
change
is
afoot.
The
fallout
promises
to
impact
everyone
up
and
down
the
patent
ecosystem’s
food
chain,
from
patent
owners,
to
defendants,
and
the
entire
universe
of
vendors,
funders,
and
counsel
that
has
been
developed
over
the
past
decade
to
deal
with
parallel
litigation
in
patent
cases
between
district
courts
and
the
USPTO’s
PTAB.
But
there
will
be
plenty
of
time
to
see
what
changes
going
forward,
even
as
the
heads
of
many
have
already
been
spinning
for
much
of
this
year
based
on
the
implementation
of
a
more
robust
discretionary
denial
gauntlet
for
IPR
petitioners
to
navigate
through.
Instead,
it
is
worthwhile
to
use
this
week’s
column
to
discuss
another
of
Friday’s
developments,
a
Federal
Circuit
precedential
opinion
that
provides
a
potent
reminder
of
the
importance
of
patent
owners
and
their
counsel
watching
their
words
—
at
least
if
they
want
to
avoid
limiting
their
patent
scope
and
value
via
prosecution
disclaimer.

The
case
in
question,


Barrette
Outdoor
v.
Fortress
Iron,
came
to
the
Federal
Circuit
out
of
the
Northern
District
of
Texas
after
a
claim
construction
ruling
that
the
plaintiff
agreed
made
it
impossible
to
prove
their
case
of
infringement.
As
a
result
of
that
stipulation,
the
district
court
entered
a
final
judgment
of
no
infringement
of
any
of
Barrette’s
four
asserted
patents,
with
Barrette
appealing
that
judgment
to
the
Federal
Circuit.
Unsurprisingly,
the
defendants
cross-appealed
to
push
forward
their
rejected
indefiniteness
defense,
because
nothing
is
sweeter
than
getting
out
of
a
patent
case
for
a
defendant
than
killing
the
patents
that
had
caused
the
trouble
to
begin
with.
On
appeal,
the
panel
concluded
that
the
district
court
was
right
in
entering
judgment
of
noninfringement,
and
rejected
the
cross-appeal
that
the
patents
were
indefinite.
A
win
for
the
defendant,
but
at
least
the
patents
survive
for
the
plaintiff
to
continue
playing
with.
(As
always,
for
those
interested
in
a
learned
analysis
of
the
opinion,
I
commend
Prof.
Crouch’s

write-up
on
Patently-O,
available
in
full
to
subscribers
of
his
worthy
publication.)
For
our
purposes,
the
salient
question
is
why
the
Federal
Circuit
chose
to
make
this
dispute
over
lawn
fence
technology
the
basis
for
a
precedential
opinion.
The
short
answer
is
that
claim
construction
as
a
matter
of
law
is
always
important
–
and
likely
to
generate
precedential
guidance
that
governs
future
similar
proceedings.

Let’s
go
a
bit
deeper
to
try
and
tease
out
what
guidance
the
panel
is
offering
to
us
going
forward.
To
start,
all
of
the
asserted
patents
“share
a
common
specification
and
parent
application,”
which
“describes
a
fencing
assembly
featuring
pivoting,
sliding
connectors
that
connect
pickets
to
rails.”
At
the
heart
of
the
inventions
was
an
improved
connector
that
offered
advantages
over
the
prior
art
fencing
assembly
methods
previously
available.
After
getting
a
few
patents
issued,
Barrette’s
continuing
prosecution
efforts
hit
a
roadblock
when
an
examiner
found
a
prior
art
reference
that
allegedly
disclosed
Barrette’s
connector.
As
a
result,
Barrette
tried
to
distinguish
over
that
reference,
before
cutting
bait
and
substituting
in
narrower
claims
that
led
to
another
patent
issuance
when
that
effort
failed.
Eventually,
Barrette
identified
what
it
thought
was
infringement
by
the
defendants
and
filed
suit.

The
case
went
to
a
claim
construction
hearing,
where
Barrette
argued
for
broad
constructions
of
the
disputed
patent
claims.
In
response,
the
defendants
argued
that
the
claims
were
indefinite
with
respect
to
“the
sliding
terms”
while
also
arguing
that
the 
“term
“boss”
should
be
construed
as
limited
to
integral,
fastener-less
structures.”
And
because
the
parties
agreed
“
that
the
terms
‘boss,’
‘projection,’
and
‘nub’
are
used
interchangeably,”
once
the
district
court
“
limited
the
“boss”
terms
to
integral
structures
by
distinguishing
the
“claimed
integral
bosses”
from
the
“conventional
pivot
hole
and
pivot
pin
assembly”
disclosed”
in
the
prior
art,
it
was
game
over
for
Barrette’s
infringement
case.
On
appeal,
the
Federal
Circuit
agreed
that
the
district
court
got
some
elements
of
claim
construction
wrong,
but
refused
to
disturb
the
construction
limiting
“boss”
to
“integral
structures”
based
on
the
disclaimer
over
the
prior
art
in
prosecution. 
Accordingly,
the
judgment
of
noninfringement
was
affirmed. 

In
doing
so,
the
panel
rejected
Barrette’s
argument
that
its
alleged
prosecution
disclaimer
could
not
apply
to
earlier
issued
patents
than
the
patent
in
which
the
alleged
disclaimers
were
made.
In
the
panel’s
view
the
situation
presented
here
was
one
where
the
disclaimer
clarifying
a
more
limited
claim
scope
was
clear
—
with
Barrette’s
argument
really
one
that
“subsequent
communications
with
the
patent
office
rendered
any
purported
disclaimer
ambiguous.”
In
light
of
that
posture,
the
panel 
found
that
the
“prosecution
history
would
not
suggest
to
a
reasonable
reader
that
Barrette’s
narrowing
characterization
of
its
claims
was
incorrect.” Nor
could
Barrette’s
cancellation
of
the
claims
at
issue
prevent
the
disclaimer
because
Barrette
never
rescinded
the
disclaimer
before
the
examiner.
Finally,
just
because
the
disclaimer
was
made
in
a
later-issued
patent’s
prosecution
was
not
enough
to
save
it
from
applying
to
earlier
familiar
members,
based
on
earlier
Federal
Circuit
precedent
that
when
terms
are
shared
across
patents,
statements
about
the
scope
of
those
terms
apply,
“regardless
of
whether
the
statement
pre-
or
post-dates
the
issuance
of
the
particular
patent
at
issue.” 

Ultimately,
the
Barrette
decision
confirms
the
importance
of
considering
the
prosecution
history
of
all
related
patents
when
determining
how
best
to
assert
or
defend
against
a
patent
infringement
claim
at
the
claim
construction
stage.
In
a
way,
it
reminds
us
that
a
patent
owner’s
statements
about
the
scope
of
its
patents
must
always
be
considered
carefully
–
with
narrowing
statements
deserving
of
extreme
scrutiny
by
patent
owners
before
they
are
made
if
at
all
possible.
Conversely,
defendants
must
make
sure
that
they
scour
the
prosecution
histories
of
related
patents
to
find
any
limiting
statements
that
can
apply
to
common
terms.
More
work
for
everyone,
but
an
important
reminder
to
all
involved
of
the
importance
of
watching
one’s
words.

Please
feel
free
to
send
comments
or
questions
to
me
at

[email protected]
or
via
Twitter:

@gkroub.
Any
topic
suggestions
or
thoughts
are
most
welcome. 

---

Gaston
Kroub
lives
in
Brooklyn
and
is
a
founding
partner
of Kroub,
Silbersher
&
Kolmykov
PLLC,
an
intellectual
property
litigation
boutique,
and Markman
Advisors
LLC,
a
leading
consultancy
on
patent
issues
for
the
investment
community.
Gaston’s
practice
focuses
on
intellectual
property
litigation
and
related
counseling,
with
a
strong
focus
on
patent
matters.
You
can
reach
him
at [email protected] or
follow
him
on
Twitter: @gkroub.

Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.

Well,
I
guess,
I
cannot.

—

Henry
Whitaker,
counselor
to
the
attorney
general,
in
response
to
a
question
asked
by
a
judge
during

arguments
before
the
U.S.
Court
of
Appeals
for
the
Third
Circuit,
concerning

Alina
Habba’s
controverial
designation
as
interim
US
attorney
and
then
acting
US
attorney
by
Donald
Trump,
which
circumvented
Senate
confirmation
and
judicial
appointment
processes.
Whitaker
was
asked
whether
Habba’s
designation
was
“consistent
with
longstanding
practice”
of
the
Justice
Department,
and
later
asked
whether
he
could
provide
any
similar
examples
of
US
attorney
appointments
akin
to
that
of
Habba’s.
His
response,
above,
left
much
to
be
desired
before
the
court.

---

Staci
Zaretsky is
the
managing
editor
of
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

Yesterday,
POLITICO
exposed

yet
another
up-and-coming
Republican
group
chat
with
wildly
offense
rhetoric.
This
one
features
the
off-color
remarks
of
Paul
Ingrassia,
Donald
Trump’s
nominee
for
the
position
of
federal
ethics
watchdog
Special
Counsel.
Ingrassia
graduated
from
Cornell
Law
a
whole
three(!)
years
ago,
and
was
admitted
to
the
New
York
bar
a
scant
year
ago.
But
that
isn’t
the
most
eye-popping
aspect
of
his
nomination.
There
are
the

alleged
links
to
antisemitic
extremists,
the

sexual
harassment
investigation,
and
now
the
racist
texts.

According
to
POLITICO,
in
the
right-wing
group
chat
Ingrassia
wrote,
“MLK
Jr.
was
the
1960s
George
Floyd
and
his
‘holiday’
should
be
ended
and
tossed
into
the
seventh
circle
of
hell
where
it
belongs.”
And,
“No
moulignon
holidays
…
From
kwanza
[sic]
to
mlk
jr
day
to
black
history
month
to
Juneteenth,”
then
added:
“Every
single
one
needs
to
be
eviscerated.”

Then
there’s
the
self-proclaimed
“Nazi
streak”:

“Paul
belongs
in
the
Hitler
Youth
with
Ubergruppenfuhrer
Steve
Bannon,”
the
first
participant
in
the
chat
wrote,
referring
to
the
paramilitary
rank
in
Nazi
Germany
and
the
Republican
strategist.
POLITICO
is
not
naming
the
participants
to
protect
the
identity
of
those
interviewed
for
this
article.

“I
do
have
a
Nazi
streak
in
me
from
time
to
time,
I
will
admit
it,”
Ingrassia
responded,
according
to
the
chain.
One
of
the
people
in
the
text
group
said
in
an
interview
that
Ingrassia’s
comment
was
not
taken
as
a
joke,
and
three
participants
pushed
back
against
Ingrassia
during
the
text
exchange
that
day.

Referring
to
white
nationalist
Nick
Fuentes
and
the
“Live
From
America”
show
on
the
video-sharing
platform
Rumble,
a
second
member
of
the
group
replied:
“New
LFA
show
coming
starring
Nick
Fuentes
&
Paul
Adolf
Ingrassia.”
To
which
Ingrassia
wrote,
“Lmao,”
according
to
the
group
chat.

And
when
other
participants
called
out
Ingrassia’s
comments,
he
allegedly
dug
in.
When
one
member
of
the
group
chat
noted,
“You’re
gunna
be
in
private
practice
one
day
this
shit
will
be
around
forever
brother.”
Ingrassia
went
off:

Ingrassia
posted
an
image
of
paintings
showing
several
Founding
Fathers,
including
Washington,
John
Adams
and
Alexander
Hamilton,
into
the
chat.
“We
should
celebrate
white
men
and
western
civilization
and
I
will
never
back
down
from
that,”
he
wrote,
according
to
the
chain.

The
third
participant
of
the
group
criticized
Ingrassia’s
“white
nationalist”
tone
then
said
he
was
coming
across
“with
a
tinge
of
racism.”
The
second
participant
then
said
he
sounded
like
“a
scumbag,”
to
which
Ingrassia
allegedly
replied,
“Nah
it’s
fine
…
Don’t
be
a
boomer
…
I
don’t
mind
being
a
scumbag
from
time
to
time,”
the
texts
show.

A
lawyer
for
Ingrassia
tried
to
cast
doubt
on
the
messages,
telling
POLITICO,
“Looks
like
these
texts
could
be
manipulated
or
are
being
provided
with
material
context
omitted.
However,
arguendo,
even
if
the
texts
are
authentic,
they
clearly
read
as
self-deprecating
and
satirical
humor
making
fun
of
the
fact
that
liberals
outlandishly
and
routinely
call
MAGA
supporters
‘Nazis.’”

But
the
reaction
in
Washington
has
not
been
as
forgiving.
According
to

reports,
at least
four
Republican
senators
—

notably
including
Senate
majority
leader,
John
Thune,
have
signaled
concerns
with
the
nomination
following
the
revelations.
Ingrassia
is
scheduled
to
appear
before
the
Senate
Homeland
Security
and
Governmental
Affairs
committee
later
this
week,
and
two
of
the
Republican
members
of
that
committee
have
issues
with
the
nominees.
Rick
Scott
said
he
doesn’t
support
the
nominee
and
Ron
Johnson

called
for
the
White
House
to
pull
the
nom.

But
a

whistleblower
report
on
Emil
Bove
telling
DOJ
staff
to
tell
the
courts
“f*ck
you”
didn’t
stop
his
elevation
to
the
Third
Circuit,
so
well
just
have
to
see
if
the
Republican
backbone
lasts.

---

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1 or
Mastodon

@[email protected].

In


Trump
v.
United
States,
the
conservative
majority
of
the
Supreme
Court
considered
the
proposition
that
granting
Donald
Trump
unchecked
presidential
immunity
opened
the
door
to
a
president
sending
commando
units
to
assassinate
political
rivals
without
repercussion
and
said,
“yeah,
we’re
cool
with
that.”
Seemingly
taking
vibe
guidance
from
that
opinion,
a
divided
Ninth
Circuit
panel
fronted
by
Judges
Ryan
D.
Nelson
and
Bridget
S.
Bade
(take
a
guess
who
appointed
them!),
shot
down
District
Judge
Karin
Immergut’s
temporary
restraining
order
blocking
the
Trump
administration
from
deploying
National
Guard
troops
—
over
the
state’s
objection
—
to
perform
law
enforcement
duty
around
the
Portland
ICE
office
where
a
handful
of
dancing
inflatable
animals
gathered
in
protest.

The
Ninth
Circuit
will
inevitably
hear
the
case

en
banc
—

the
process
is
apparently
already
underway
—
but
in
the
meantime,
this
decision
becomes
another
collectible
in
the
White
House’s
effort
to
string
together
step-wise
court
victories
toward
laying
the
legal
groundwork
for
unilateral
authoritarianism.
That’s
really
what’s
going
on
here.
The
administration
is
fully
aware
that
they
don’t
need
the
National
Guard
to
secure
ICE
from
eight
hippies.
But
they’re
counting
on
judges
like
Nelson
and
Bade
to
write
opinions
establishing
that
Trump’s
subjective
assessment
of
“danger”
justifies
military
deployment
—
precedent
that
will
be
ready
and
waiting
when
he
wants
troops
at
polling
places
or
outside
state
capitols
during
vote
certification.

Like
the
proverbial
inflatable
frog
in
the
pot.

Judges
Nelson
and
Bade
are
both
Trump
appointees
who
rose
to
their
station
through
the
MAGA
patronage
pipeline,
a
sort
of
judicial
“Alabama
Rush,”
where
the
stakes
are
higher,
the
process
is
just
as
opaque,
and
there’s
somehow
even

more
white
people
involved.
But
it’s
not
fair
to
dismiss
a
court
opinion
just
because
they’re
Trump
judges.
After
all,
many
Trump-appointed
judges
have
stood
on
principle
in
cases
involving
the
government
—
indeed,
Judge
Immergut
(who
had
to
take
over
this
case
because
Judge
Michael
Simon
is
married
to
a
politician
who
spoke
against
the
administration
plan
—
if
that’s
the
standard,
wait
until
people
hear
what
Ginni
Thomas
says!)
is
a
Trump
appointee.
Let’s
just
say
it’s
a
necessary
but
not
sufficient
condition.

Instead,
let’s
dismiss
the
opinion
because
it’s
intellectually
vapid
and
factually
dishonest.

After
considering
the
record
at
this
preliminary
stage,
we
conclude
that
it
is
likely
that
the
President
lawfully
exercised
his
statutory
authority
under
10
U.S.C.
§
12406(3),
which
authorizes
the
federalization
of
the
National
Guard
when
“the
President
is
unable
with
the
regular
forces
to
execute
the
laws
of
the
United
States.”
The
evidence
the
President
relied
on
reflects
a
“colorable
assessment
of
the
facts
and
law
within
a
‘range
of
honest
judgment.’”

This
is
not,
in
fact,
what
the
statute
says.
In
fact,
§12406
authorizes
the
president
to
use
troops
where
the
federal
government
“is
unable
with
the
regular
forces
to
execute
the
laws
of
the
United
States.”
What
does
that
mean?
According
to
Judges
Nelson
and
Bade,
it
means
“whatever
the
president
says.”
After
paying
lip
service
to
recent
Ninth
Circuit
precedent
clarifying
that
the
White
House
can’t
make
unfounded
declarations
to
justify
sending
troops,
the
majority
strung
together
a
series
of
anecdotes
that
amount
to
little
more
than
“there
was
once
a
protest”
—
regardless
of
whether
it
actually
prevented
law
enforcement
from
functioning
—
and
said
that’s
enough
to
make
Trump’s
decision
colorable.

But
the
plural
of
anecdotes
is
not
data
as
they
say,
and,
in
dissent,
Judge
Susan
Graber
pulled
up
the
actual
reports
and
challenged
the
majority
to
explain
how
this
is
colorably…
anything.

The
worst
that
ever
happened
in
Portland
was
all
handled
by
local
law
enforcement,
a
critical
point
since
the
statute
places
an
explicit
caveat
that
the
breakdown
must
be
beyond
the
capacity
of
regular
forces
to
warrant
military
involvement.

In
response,
the
majority
counters:

First,
the
district
court
erred
by
determining
that
the
President’s
“colorable
assessment
of
the
facts”
is
limited
by
undefined
temporal
restrictions
and
by
the
district
court’s
own
evaluation
of
the
level
of
violence
necessary
to
impact
the
execution
of
federal
laws.
Thus,
the
district
court
determined
that
it
would
apply
Newsom’s
deferential
“colorable
basis”
standard
to
the
facts
“as
they
existed
at
the
time
[the
President]
federalized
the
National
Guard.”

These
“undefined
temporal
restrictions”
are
grounded
in
what
the
rest
of
us
would
call
“the
English
language.”
As
much
as
the
country
might
benefit
from
reimposing
Reconstruction
on
the
South
based
on
its
“history”
of
rebellion,
past
administrations
respected
that
their
authority
was
limited
by
the
present
tense.
To
the
extent
Portland’s
ICE
agents
really
are
so
soft
that
they
couldn’t
do
their
jobs
in
July,
it
has
little
bearing
determining
that
it
“IS
UNABLE
with
the
regular
forces
to
execute
the
laws
of
the
United
States”
come
September.
Nor
can
the
president
assert
that
ICE
might
potentially
at
some
undefined
future
point
become
unable.

Congress,
presumably,
knows
how
to
write
forward-looking
language.
It
chose
not
to
do
so.

The
statute
delegates
the
authority
to
make
that
determination
to
the
President
and
does
not
limit
the
facts
and
circumstances
that
the
President
may
consider
in
doing
so.
Indeed,
the
inherently
subjective
nature
of
this
evaluation
demonstrates
that
the
President
has
the
authority
to
identify
and
weigh
the
relevant
facts
under
§
12406(3).
The
President
can,
and
should,
consider
the
totality
of
the
circumstances
when
determining
whether
he
“is
unable
with
the
regular
forces
to
execute
the
laws
of
the
United
States.”

Donald
Trump
has

publicly
claimed
that
Portland
is
a
“war
zone”
that
is
“on
fire.”
The
statute
may
not
explicitly
“limit
the
facts
and
circumstances”
a
president
can
consider,
but
one
presumes
a
limit
excluding

fiction.
Alas,
the
majority
has
an
answer
for
this
and
it
is,
“The
Party
told
you
to
reject
the
evidence
of
your
eyes
and
ears.
It
was
their
final,
most
essential
command.”

While
we’re
on
fake
claims,
the
administration’s
argument
that
“regular
forces”
couldn’t
handle
the
protests
cited
an
unusually
high
number
of
ICE
agents
sent
to
the
Portland
office.
Judge
Graber
pointed
out
that
this
seems
to
be
a
bunch
of
people
cycling
in
and
out
a
handful
at
a
time.
Less
a
surge
than
a
revolving
door
—
probably
put
in
to
set
up
this
argument
for
any
judge
willing
to
treat
it
with
undue
credulity.

Second,
the
district
court
erred
by
placing
too
much
weight
on
statements
the
President
made
on
social
media.
The
district
court
interpreted
President
Trump
characterizing
Portland
as
“War
ravaged,”
as
the
equivalent
of
the
President
“ignoring
the
facts
on
the
ground.”
As
such,
the
district
court
relied
on
these
statements
to
disregard
other
facts
that
do
“reflect[]
a
colorable
assessment
of
the
facts
and
law
within
a
range
of
honest
judgment.”

When
Homer
Simpson
rose
to
lead
the
Stonecutters,
he
once
tried
to
fold
a
losing
poker
hand,
only
for
the
other
cultists
to
jump
in
and
declare
that
he
had
“the
Royal
Sampler.”
Apparently,
Trump’s
judges
on
the
federal
judiciary
now
take
their
cues
from
Lenny
and
Carl.
The
president
—
or
at
least
THIS
president
—
is
owed
such
extreme
deference
that
the
courts
are
allowed
to
substitute
their
own
imagined
justifications
if
the
president’s
own
words
don’t
measure
up
to
“colorable.”

That’s
not
legalism,
it’s
epistemic
control:
the
right
to
define
what
counts
as
a
threat,
what
counts
as
a
rebellion,
and
what
counts
as
the
ability
to
execute
laws.
When
courts
declare
that
even
fantasy
threats
justify
real-world
force,
we’re
no
longer
interpreting
the
Constitution,
we’re
narrating
empire.

The

per
curiam
opinion
rested
its
laurels
on
the

ability
to
execute
the
laws
justification,
but
give
a
special
shout
out
to
Judge
Nelson,
who
added
a
gratuitous
concurrence
to
clarify
that
he’d
also
allow
Trump
to
define
a
gathering
of
furries
outside
a
government
office
as
a
“rebellion”
if
he
wanted.
Citing
the
sort
of
ersatz
history
and
tradition
that
carries
the
day
at
the
Supreme
Court,
Nelson
cites
the
history
of
founding
era
rebellions
like
the
Whiskey
Rebellion
and
Shays’s
Rebellion
and
asserts
with
a
straight
face
that
these
are
more
or
less
the
same
as
Portland.
This
comparison
reflects
“history”
in
the
same
way
Ancient
Aliens
fits
on
the
History
Channel.
And
even
if
they
bore
any
resemblance
to
Portland,
the
government
sent
troops

while
they
were
ongoing.

He
also
spills
ink
on
the
idea
that
Trump’s
judgment
shouldn’t
be
reviewable

at
all.
No
one
has
standing.
Nothing
is
reviewable.
Just
the
whims
of
the
Mad
King
of
Mar-a-Lago
all
the
way
down.

But
you
don’t
move
up
the
Federalist
Society’s

cursus
honorum
for
backing
away
from
an
insane
statement
or
two.

More
or
less
absent
from
this
historical
review
is
the
Posse
Comitatus
Act,
which
frames
the
existing
Insurrection
Act
as
less
empowering
than
limiting.
The
Insurrection
Act
is
classically
understood
as
a
series
of
legal
obstacles
a
president
must
overcome
rather
than
a
grant
of
deferential
power.
This
opinion
attempts
to
flip
this
on
its
head,

continuing
the
baseless
sanewashing
coming
from
the
media,
by
suggesting
the
Insurrection
Act
is
an
unchecked
magic
wand
that
just
never
got
used
like
this
out
because
prior
presidents
lacked
Trump’s
legal
acumen
to
read
the
invisible
ink
between
the
lines
of
the
statute.

Judge
Graber’s
dissent
lays
out
the
stakes:

Given
Portland
protesters’
well-known
penchant
for
wearing
chicken
suits,
inflatable
frog
costumes,
or
nothing
at
all
when
expressing
their
disagreement
with
the
methods
employed
by
ICE,
observers
may
be
tempted
to
view
the
majority’s
ruling,
which
accepts
the
government’s
characterization
of
Portland
as
a
war
zone,
as
merely
absurd.
But
today’s
decision
is
not
merely
absurd.
It
erodes
core
constitutional
principles,
including
sovereign
States’
control
over
their
States’
militias
and
the
people’s
First
Amendment
rights
to
assemble
and
to
object
to
the
government’s
policies
and
actions.
I
strenuously
dissent

The
comparison
to

Trump
v.
United
States
is
apt,
not
just
because
of
its
central
litigant,
but
just
like
the
justices
who
considered
the
possibility
that
their
decision
—
as
written
—
legalized
political
assassination,
the
judges
here
painted
executive
authority
with
a
brush
broad
enough
to
greenlight
any
number
of
abuses.
When
establishing
a
rule,
it’s
not
what
you
do,
it’s
what
you
justify
—
if
the
bar
is
set
at
“streaking
hipsters
three
months
ago
amounts
to
a
total
breakdown
in
law
now,”
what
happens
when
the
White
House
says
election
day
“could
be
violent”
based
on
anonymous
vibes?
Claiming
to
be
governed
by
laws
and
not
men
is
all
well
and
good,
but
rests
on
the
premise
that
courts
don’t
rewrite
the
law
as
“whatever
that
dude
thinks
in
the
moment.”
At
that
point,
it’s
all
theater.

Judge
Graber
concludes
her
opinion,
stressing,
“Above
all,
I
ask
those
who
are
watching
this
case
unfold
to
retain
faith
in
our
judicial
system
for
just
a
little
longer.”
With
all
due
respect,
that
faith
is
getting
harder
to
maintain
when
two
members
of
a
three-judge
panel
can
look
at
people
sitting
in
lawn
chairs
and
see
a
war
zone.

(Full
opinion
available
on
the
next
page…)

Earlier:

TV
Legal
Analyst
Begins
Sanewashing
Trump
Declaring
Martial
Law

SCOTUS
Greenlights
SEAL
Team
6
Solution

---

Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of

Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or

Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a

Managing
Director
at
RPN
Executive
Search.

Dear
Governor,
State
Senator,
or
Representative,

Thank
you
for
your
interest
in
my
course,
[redacted]. You
probably
discovered
my
course
by
accessing
“Simple
Syllabus”
or
scouring
our
course
offerings
page,
rather
than
engaging
in
some
other
constituent
concern. I
appreciate
your
devotion
to
higher
education
and
ensuring
that
students
get
the
maximum
opportunity
to
learn
in
a
school
in
our
state.

I
noted
in
your
social
media
post
that
you
consider
my
course
“woke”
and
“DEI”
or
part
of
some
“progressive
left
agenda”
to
indoctrinate
your
children. Just
for
clarification,
I
don’t
think
you
mean

your
actual
children,
all
of
whom
you
sent
to
Harvard
and
not
to
the
state
university
at
which
I
teach. I
suspect
you
meant
your
constituents’
children.

Effect
On
Taxpayers

I
understand
that
you
are
concerned
about
the
massive
amount
of
tax
dollars
spent
on
my
course. I
assure
you
that
is
not
the
case,
neither
in
terms
of
my
course
as
a
percentage
of
aggregate
tax
dollars
nor
even
as
a
percentage
of
each
individual
taxpayer’s
overall
liability. My
course
is
small
potatoes. Even
if
you
were
to
look
at
the
percentage
of
classes
you
deem
“woke”
versus
total
class
offerings
at
my
university,
you
would
not
conclude
that
the
“woke”
courses
are
in
any
way
breaking
anyone’s
bank.   

Nor
could
you
know
what
financial
impact
my
course
has
on
the
university,
absent
more
investigation. You
have
not
examined
enrollment
patterns
for
the
course,
which
is
surprising
given
you
are
a
firm
believer
in
markets
and
“liberty.” Thus,
it’s
hard
to
determine,
absent
more,
whether
my
course
subsidizes
the
university,
mitigating
tax
dollar
requirements,
or
vice
versa. I’m
sure
you
agree
that
if
a
course
has
high
demand,
liberty
dictates
that
we
offer
this
course
to
your
constituents.

You
point
out
that
taxpayers
(in
part)
pay
my
salary. I’ll
start
by
saying
thank
you
very
much
for
my
3%
pay
raise
over
the
past
eight
years. But
beyond
that,
you
are
measuring
the
opportunity
cost
between
offering
this
course
and
offering
a
different
course. Which
is
of
highest
value? Is
it
a
wise
use
of
your
time
to
try
to
make
that
determination
without
any
information
other
than
the
course
description
when
there
are
provosts,
deans,
department
chairs,
and
faculty
who
have
experience
with
this?  

In
sum,
be
assured
if
no
students
were
taking
the
course,
or
if
they
uniformly
hated
the
course,
or
if
some
other
courses
could
be
regarded
as
of
higher
value,
I’d
be
teaching
something
else
instead,
and
we
wouldn’t
be
having
this
conversation.
To
paraphrase

Gil
Scott-Heron,
not
only
will
the
revolution
not
be
televised,
it
won’t
be
listed
in
the
course
catalog
if
no
one
wants
to
take
the
course. Even
a
mandatory
course
which
is
subject
to
hostile
evaluations
and
attack
is
not
likely
to
be
long-lived. Markets
work,
sometimes.

Is
My
Class
‘Woke’
Or
‘DEI’?

Discussing
a
societal
issue
in
a
course
does
not
mean
a
course
is
“woke”
or
“DEI.”
In
my
opinion,
both
terms
have
now
become
terms
that
do
not
mean
what
you
think
they
mean.
DEI,
before
you
altered
the
term
to
mean
any
course
you
hate,
meant
inclusion
of
diverse
groups
on
an
equal
basis. For
example,
as
some
have
pointed
out
facetiously,
your
argument
for
greater
inclusion
of
more
conservative
professors
is
a
DEI
claim.  

Including
LGBTQ+
courses
does
not
make
it
DEI
or
woke. For
example,
let’s
assume
there
is
a
course
called
“Dealing
with
Clients,”
in
which
“LGBTQ+
issues
will
be
addressed.” Your
search
of
courses
would
flag
this
and
suggest
that
it
is
wasting
taxpayer
dollars
on
woke
issues. But
did
you
consider
some
alternative
explanation
for
the
course
before
summarily
dismissing
it?
For
example,
if
this
course
were
offered
in
a
medical
school,
law
school,
school
of
social
work,
department
of
psychology,
or
other
department,
it
may
very
well
mean
assuring
the
competency
of
the
student
to
handle
clients. You
don’t
always
get
to
pick
your
clients,
and
foreclosing
understanding
of
clients
merely
because
a
state
senator
doesn’t
understand
that
would
be
to
not
fully
train
my
students
in
the
hopes
of
saving
my
own
skin. You
would
seek
to
make
our
students

worse
off
using
your
“standard.”

Am
I
Indoctrinating
Students?

All
signs
suggest
I’m
not
indoctrinating
my
students,
even
the
one
or
two
who
have
fully
read
my
syllabus.  

First,
indoctrination
probably
doesn’t
mean
what
you
think
it
means.
Correct
me
if
I’m
wrong,
but
you
seem
to
think
that
if
a
student
walks
into
my
class
there
is
some
power
I
will
hold
over
them
to
compel
them
to
my
beliefs,
whether
it
be
my
charisma
(thank
you),
Jedi
mind
tricks
(insulting
to students),
or
some
other
mechanism
which
you
don’t
describe
in
detail. Indoctrination
is
far
more
complex,
and
that
complexity
explains
its
impossibility.  

Second,
there
is
a
difference
between

indoctrination
and

education,
and
I
believe
you
often
conflate
the
two. 
Introduction
of
an
idea
might
give
the
idea
temporary
appeal,
even
if
the
idea
is
presented
in
a
fashion
that
lists
all
of
the
idea’s
caveats. 
Without
more,
that
temporary
appeal
comes
from
novelty
and
dissipates
over
time. 
Second,
it
is
not
as
if
the
course
is
a
cult. 
I
have
no
ability
to
isolate
the
student
on
an
island
and
use
force
to
compel
the
drinking
of
the
Kool-Aid. 
Even
a
threat
of
a
final
exam
can
be
an
exercise
of
“fodder
in,
fodder
out”
without
acceptance
of
any
indoctrination. 
Thus,
exposure
to
ideas
isn’t
indoctrination,
unless
your
definition
of
indoctrination
is
so
broad
as
to
suggestion
all
education
is
indoctrination.  

Third,
evidence
suggests
that
indoctrination
(from
faculty)
simply

does
not
exist. The

Economist
(hardly
a
leftist
rag,
I’ll
note)
discusses
the
phenomenon
and
concludes
that
faculty
indoctrination
of
students
is
unlikely.  

Even
if
one
were
to
think
that,
despite
all
evidence,
indoctrination
exists,
other
sources
appear
to
be
stronger
contributors
than
what
professors
do
in
the
classroom.
As
one

commentator
noted,
to
“the
limited
extent
that
student
views do shift
during
college,
the
changes
seem
to
have
much
more
to
do
with
fitting
in
with
peers
than
being
shaped
by
their
professors
or
the
books
they
read.” Another

commentator
puts
it
more
bluntly:

Furthermore,
um,
have
you
ever
met,
or
been,
an
adolescent?
If
so,
you
might
remember
that
there
are
a
lot
of
things
more
likely
to
influence
you
than
a
(most
likely)
uncharismatic,
middle-aged
professor
assigning
a
difficult
text
like
Foucault’s
Discipline
and
Punish.
There
are
your
friends.
Your
parents.
Religious
institutions.
Fraternities
or
sororities,
if
you
belong
to
one.
Your
cultural
heroes,
whether
found
in
sports,
entertainment,
or
(more
and
more)
among
the
deeply
online.
If
Judith
Butler
or
Angela
Davis
went
to
give
a
lecture
at
the
University
of
Michigan,
I
sincerely
doubt
they
would
get
an
audience
even
five
percent
of
the
number
who
show
up
for
the
university’s
home
football
games
—
probably
much
less.

(In
fairness,
this
commentator
is
biasing
the
numbers,
because
it’s
not
as
if
it’s
a
HUGE
event
like
an
Ohio
State
Game.)  

But
seriously,
even
conservative

bloggers
who
are
concerned
about
indoctrination
note
that
the
classroom
isn’t
the
biggest
issue:
“The
trap:
Years
(usually
more
than
the
advertised
four)
of
indoctrination
in
the
classroom
and,

more
harshly,
the
dormitories” 
(emphasis
added).  

Even
if
I
were
to
indoctrinate
students
(which
hardly
seems
worth
the
effort
given
my
salary),
it
would
seem
your
concern
is
only
about
my
indoctrination
and
not
the
indoctrination
of
other
faculty
members. You
are
hardly
scouring
business
school
courses,
economics
courses,
or
other
schools
where
there
are
theories
and
schools
of
thought
that
are
incredibly
one-sided. In
economics
for
example,
you
are
not
concerned
that
they
are
only
teaching
neoclassical
economics
and
not
other
schools
of
thought. I’m
not
saying
you
should
bother,
I’m
just
saying
that
selective
attacks
for
indoctrination
may
itself
be
an
attempt
at
indoctrination.  

Personally,
I
should
point
out
that
several
of
my
students
have,
in
the
past,
worked
for
your
administration,
currently
work
in
the
Trump
administration,
or
work
in
similarly
conservative
administrations. If
I’m
trying
to
indoctrinate,
I
sure
do
suck
at
it.

A
Guaranteed
Way
To
Increase
The
Power
Of
An
Idea
Is
To
Suppress
It

Finally,
I
mention
what
I
had
hoped
would
be
obvious
to
students
of
history
(as
it
is
taught
in
nonoppressive
states). Namely,
the
best
way
to
give
force
and
power
to
an
idea
is
to
suppress
it.

Whether
it
is
called
the
“Streisand
Effect”
or
the
“Boomerang
Effect,”
the
principle
is
the
same:

Suppressing
ideas
only
makes
them
stronger. Openly
discussing
ideas,
particularly
where
trained
professors
can
present
the
strengths
and
weaknesses
of
particular
theories,
is
a
better
(and
more
liberal
in
the
classical
sense)
approach. As

Professor
Kinsley
puts
it,
“individuals
who
perceive
that
their
freedom
to
express
a
certain
position
or
to
offer
a
certain
form
of
speech
is
threatened
will
take
actions
to
continue
engaging
in
the
censored
expression,
thereby
contributing
their
message
to
the
free
speech
marketplace
to
a
greater
degree
than
before
the
censorship
took
place.” 
Ideas
have
power. And,
by
suppressing
ideas,
you
are
pouring
gasoline
on
the
idea’s
fire.  

Conclusion

If
you’re
just
posting
on
X
that
your
universities
are
woke
for
cheap
political
points,
carry
on. But
it
seems
you
are
targeting
students,
faculty,
and
staff
for
particular
ideas
and
viewpoints,
both
in
and
out
of
the
classroom.

If
you’re
seriously
concerned,
I
hope
this
letter
is
a
starting
point
of
discussion.
I’m
happy
to
meet
with
you
in
person. The
bottom
line
is
you
are
wrongly
implying
things
from
a
course
description
that
do
not
necessarily
follow.
And
that
has
had
an
impact
in
terms
of
faculty
holding
back
on
teaching,
and,
in
doing
so
giving
power
to
ideas
you
claim
you
do
not
wish
empowered.  

But
you
are
doing
more
than
that. For
example,
Constitutional
Law
has
an
LGBTQ+
component. Consider

Obergefell. You
may
not
want
me
teaching
the
outcome
of
the
case. You
may
want
to
ban
me
from
teaching
it. But
that
means
I
won’t
teach
the
dissents
by
Justices
Alito,
Roberts,
Scalia,
and
Thomas,
either.  

In
suppressing
one
idea,
you
suppress
five,
injuring
understanding
and
my
students
(your
constituents)
in
the
process.

---

LawProfBlawg is
an
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