Protesting with guns and conflating the First and Second Amendments: The case of the Bundys

Prior to 1939, only 2 records of Trumpeter Swans (Cygnus buccinator) had been reported from Malheur National Wildlife Refuge (NWR) and no records of breeding swans were known. Attempts to establish a breeding population at Malheur NWR with transplants from Red Rock Lakes NWR, Montana, began in 1939. Several transplants were made before the first broods of swans were produced in 1958. From 1958 through 1984, 288 cygnets fledged at Malheur NWR. Most Trumpeters nested in the Blitzen Valley, but some nested on Malheur Lake, in the Double-O area, and on the Island Ranch north of the refuge. The population now appears to be stable, but the limiting factors are largely unknown. Circumstantial evidence suggests that some young swans are leaving the area prior to sexual maturity. There were no records of Trumpeter Swans (Cygnus buccinator) nesting in Oregon prior to the establishment of a population at Malheur National Wildlife Refuge (NWR). Although the species was not described until 1832 (Swainson and Richardson 1832), accounts by Lewis and Clark indicated that they observed both Trumpeter and Tundra (Cygnus columbianus) Swans near the mouth of the Columbia River in 1806 (Banko 1960, Burroughs 1961). Other early migration records included those of Townsend (1829), Newberry (1857), Bendire (1877), Mearns (1879), Johnson (1880), Anthony (1886), Wood- cock (1902) and Prill (1922). Bendire (1877) collected a Trumpeter Swan at Malheur Lake on 24 March 1877. Johnson (1880) reported Trumpeter Swans to be common migrants in the Willamette Valley. Prill (1922) observed a pair of Trumpeters on the Blitzen River The information in this report is derived from letters, memos, reports and unpub- lished data in the biological files at Malheur National Wildlife Refuge. Each of us was involved at one time or another in acquisition and summarization of Trumpeter breed- ing data at the Refuge. Waterfowl census techniques and coverage have changed occa- sionally since active refuge management began in the mid-1930's. From 1935 to 1955 waterfowl were censused predominantly along ground routes at irregular intervals. Since 1955 Trumpeter Swan production has been determined by using aerial surveys. These flights were conducted in August in fixed-wing aircraft. All aquatic habitat was surveyed and an attempt was made to count all cygnets. Beginning in the late 1970's three aerial counts were made annually. A late May flight was used for counting breed- ing pairs, an early July flight was used to locate active nests, and in August cygnets were counted. Flights were made in Cessna 182 or 185 aircraft at 30 to 60 m above the ground at about 150 kph. Information from these flights was supplemented by obser- vations made during other field activities throughout the year.

A unique and definitive study of freedom-of-expression rights in electronic media from the 1920s through the mid-1930s, Louise M. Benjamin's Freedom of the Air and the Public Interest: First Amendment Rights in Broadcasting to 1935 examines the evolution of free speech rights in early radio. Drawing on primary resources from sixteen archives plus contemporary secondary sources, Benjamin analyzes interactions among the players involved and argues that First Amendment rights in radio evolved in the 1920s and 1930s through the interaction of many entities having social, political, or economic interests in radio. She shows how free speech and First Amendment rights were defined and perceived up to 1935. Focusing on the evolution of various electronic media rights, Benjamin looks at censorship, speakers' rights of access to the medium, broadcasters' rights to use radio as they desired, and listeners' rights to receive information via the airwaves. With many interested parties involved, conflict was inevitable, resulting in the establishment of industry policies and government legislation - particularly the Radio Act of 1927. Further debate led to the Communications Act of 1934, which has provided the regulatory framework for broadcasting for over sixty years. Controversies caused by new technology today continue to rage over virtually the same rights and issues that Benjamin addresses.

Higher education has long been the fundamental building block upon which American democracy is based. The guarantees of free speech have served as the catalyst for higher education, itself a revered liberty in the American polity. As the Supreme Court famously declared in 1969: “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Indeed, freedom of expression is imperative to a university’s mission in preparing young aspiring students to become informed and engaged citizens. This paper examines the decision by the Eighth Circuit Court of Appeals in Gerlich v. Leath and elaborates on the complexities that arise when analyzing student speech rights that conflict with university interests. Specifically, this paper reviews the Eighth Circuit's over-simplification of the rights and interests at stake in the original opinion and more thoroughly scrutinize the intricacies of student speech rights on university campuses. The Gerlich decision ultimately misses the analytical mark because it fails to fully evaluate the Free Speech rights at stake will. Insufficient attention is paid to the nuanced tensions that exist when examining First Amendment rights in the setting of a higher education institution—namely, that such circumstances present unique instances of “mixed speech” where both the university and its students are expressing a message particular to their own interests. Though student speech rights do not end at the schoolhouse gates, exactly how far they extend into the daily operations of a public university it remains to be seen. The Gerlich decision would suggest that they are fairly invasive, and growing. But there is good reason to question the strength of the Gerlich opinion. The relevant question is not whether student speech rights should be curtailed on university campuses; the relevant question, rather, is to what extent student speech rights should prevail when they content with—even conflict with—the expressive interests of their university.

Chapter 7 addresses the relationship between the Free Speech Clause and the Second Amendment’s right to “keep and bear Arms.” Relative to the other non-speech rights examined in the book, recognition of an individual right to keep and bear arms occurred relatively recently (the Supreme Court recognized the right in 2008). As a result, the relationship between free speech and Second Amendment rights is still developing. The chapter focuses primarily on two aspects of their intersection. The first is the extent to which the nature and scope of Second Amendment rights ought to be modeled on Free Speech Clause doctrines and principles. The chapter considers the pros and (mostly) cons of “borrowing” the Free Speech Clause for this purpose. The second aspect of the relationship between the Free Speech Clause and the Second Amendment relates to potential conflicts between them. The chapter addresses two tension points—the effect on free speech of openly carrying firearms at public protests and demonstrations, and the effect on academic freedom and inquiry from the presence of firearms in university classrooms. The chapter argues that the future of the Second Amendment will not be determined by explicit borrowing of Free Speech Clause doctrines. However, in terms of constructing the modern right to keep and bear arms, there is much we can learn from the nation’s long experience with free speech rights.

If we assume that individuals have moral rights to free speech, and that privacy may restrict such expression, then there appears to be a conflict of rights-a conflict where speech or expression may trump privacy concerns. For example, when a musician offers up a song about a romantic affair for public consumption, privacy rights may run headlong into speech and expression rights. Andrew McClurg has noted that judges are not willing to protect privacy if doing so threatens free speech: Of the forty- nine invasion of privacy cases reported by state courts in 1992, trial courts granted summary judgment to the defendant in twenty- one of the cases and granted the defendant's motion to dismiss the complaint in fifteen of the cases. other words, in thirty- six of the forty- nine cases (73 percent) trial judges deprived plaintiffs the opportunity to have their privacy claims heard by a jury.2 McClurg also mentions that the situation is nearly identical in the federal courts.3On the other hand, privacy and free expression may be mutually reinforcing. Anonymous communication, online or otherwise, allows individuals to express themselves freely without fear of censure. Citing precedents dating back to the 1950s, Nadine Strossen, former president of the American Civil Liberties Union, writes, In all these cases, the Court has recognized that without the cloak of anonymity, many individuals simply will not exercise their First Amendment rights. They will not freely associate with controversial organizations, nor will they express controversial ideas or discuss sensitive subjects.4 Privacy also reinforces free speech by supporting access to information. When Virginia mandated blocking software to deny access to pornographic materials online and required permission and public disclosure to turn offthe blocking software, free speech was threatened. Professors and researchers across numerous disciplines were loath to disclose the subject matter of their studies-especially when such disclosures would occur piecemeal and unaccompanied by the final written document.5While privacy may strengthen speech or expression in some instances, it seems that in most cases there is conflict. Do we have a right to know the names of rape victims or the sexual preferences of citizens who act heroically? Are the daily events of politicians or entertainers newsworthy? Is privacy less important than freedom of speech? My answer is no to each of these questions. this article I will argue that upon careful analysis there is little conflict between privacy and expression in the moral realm. Moreover, if legal systems are to reflect, promote, or protect basic rights, then it is not so clear that speech should nearly always trump privacy. The ascendancy of speech protection in the legal realm, I argue, is due to an expansive and unjustified view of the value or primacy of free expression-this is perhaps understandable, given that privacy has been understood as a mere interest, whereas speech rights have been seen as more fundamental. I have argued elsewhere that this view of privacy is false-privacy, properly defined, is a necessary condition for human well- being or flourishing.6 Part I will provide an overview of the moral foundations of privacy-while brief, the goal is to establish the claim that privacy is more than a mere interest. Part II will consider several arguments-or strands of argument-purporting to justify free speech rights. While these arguments, taken together, establish that free speech is important, they do not support the view that speech should nearly always trump privacy. Part III, I will suggest a way to balance free speech and privacy claims in the law.Part I: Establishing a Moral Presumption in Favor of PrivacyI favor what has been called a based definition of privacy. Privacy is the right to control access to, and uses of, personal information and spatial locations 7 Privacy may be understood as a right to control both tokens and types. …

Coyotes (Canis latrans), raccoons (Procyon lotor), and common ravens (Corrus corax) are important predators on greater sandhill crane (Grus canadensis tabida) eggs at Malheur National Wildlife Refuge, Oregon. Coyotes and ravens occurred historically at Malheur, whereas raccoons were first recorded in 1950. Of 1096 greater sandhill crane clutches (1966 to 1989), coyotes destroyed 214 (20%), raccoons 100 (9%), and ravens 162 (15%). Most cranes at Malheur select coarse, emergent vegetation for nest placement. Nesting success was highest in hardstem bulrush (Scirpus acutus) and lowest in broad-fruited burreed (Sparganium euryvarpum). In bulrush and common cattail (Typha latifolia), there were significantly more well-concealed nests, and success rates were significantly higher than in burreed and meadow. There was no difference in predation rates among concealment categories for raccoons, but ravens took significantly more poorly-concealed nests, while coyotes destroyed more poorlyand fairly-concealed nests than those well concealed. Past predation pressure has likely contributed to the greater use of concealing, coarse, emergent vegetation for nest sites. Greater sandhill cranes (Grus canadensis tabida) commonly breed in remote, isolated wetlands of northeastern California, and southcentral and southeastern Oregon. In southeastern Oregon, nesting primarily occurs in closed drainage systems, with water originating from adjoining mountain ranges. One of the largest of these wetland complexes is the MalheurHarney Lakes Basin, in Harney County, Oregon. About 100,000 ha of wetland habitat, from alkali sumps to perennial marshes and lakes, are found within the basin. A large percentage of these wetlands is located on Malheur National Wildlife Refuge (NWR), in the southern half of the system. A mean of 215 (range = 168 to 236) pairs of cranes have breeding territories on the refuge. Over 90% of these pairs nest among coarse, emergent vegetation, predominantly hardstem bulrush (Scirpus acutus), common cattail (Typha latifolia), and broad-fruited burreed (Sparganium euryvarpum). Large wetland complexes naturally attract predators, and predation rates on both crane eggs and chicks are often high (Littlefield 1976, 1995a). Common ravens (Corrus corax), raccoons (Procyon lotor), and coyotes (Canis latrans) 1 Present address: HCR 4 Box 212, Muleshoe, TX 79347. have been responsible for most losses, with all 3 species taking eggs; coyotes have been identified as the principal predator of chicks (Littlefield and Lindstedt 1992). Such predation pressure is believed to be primarily responsible for the extensive use of concealing vegetation for crane nest placement, which is inconsistent with other western United States nesting areas (e.g., Drewien 1973, Stern et al. 1987, Littlefield 1995b). Historically, predator densities have fluctuated, at least since the establishment of Malheur NWR in 1908. Disease outbreaks, poisoning campaigns, trapping, shooting, and prey availability have contributed to these fluctuations. Accompanying these predator fluctuations, habitat conditions at Malheur have also varied, particularly since the mid-1930's. Grazing cattle numbers peaked in 1973 at 126,593 Animal Unit Months (AUMs) after a steady increase beginning about 1940 (Littlefield and Thompson 1987). Even though grazing was confined to winter, little residual vegetation remained by spring, regularly leaving crane nests completely exposed in April and May. For 1966 and 1967, nest success was 44% (Littlefield and Ryder 1968), even with intensive predator control. After 1972, predator control programs were mostly eliminated, but as AUMs of graz-

The range and population of the Trumpeter Swan (Cygnus buccinator) in the United States and Canada have been greatly reduced because of a number of factors. The major nesting areas today are in Alaska where the population is increasing; there are only remnant nesting populations elsewhere (Banko 1960, Hansen et al. 1971, Palmer 1976). The Trumpeter Swan's status in Oregon in the late 1970's was listed as occasional in the coastal areas and in the high desert east of the Cascade Mountains (Eltzroth and Ramsey 1979). The only breeding records in Oregon are from the Malheur National Wildlife Refuge (NWR) where transplanted birds from Red Rock Lakes NWR in Montana established a small breeding population in 1958 (Cornely et al. 1985). Gabrielson and Jewett (1940) listed about 12 sources for sight records in Oregon from 1806 to 1940, including several from the Willamette Valley. They considered this species near extirpation and reported no sight records in Oregon after 1929. The scarcity of Trumpeter Swans in western Oregon was reflected by (1) unsubstantiated reports of wintering birds on the Columbia River (Marshall 1969), (2) no verified observations from 1929 to the late 1950's (Banko 1960), and (3) suspected, but unverified, wintering in Oregon and as far south as the Sacramento Valley in California (Hansen et al. 1971). Other than the transplanted birds and their progeny at Malheur NWR (first transplanted in 1939), only two specimens of Trumpeter Swans are known for Oregon. One specimen (current location unknown) was reportedly collected at Malheur Lake (now Malheur NWR) in 1877 and one was taken in April 1881 on the Columbia River about 5 km west of Portland (Gabrielson and Jewett 1940). In this paper, we describe the first Trumpeter Swan specimen from the Willamette Valley. Also, we list post-1974 winter sight records that were obtained from American Birds; Oregon Birds; newsletters from bird clubs and Oregon Audubon chapters including Warbler, Sandpiper, Corvallis Chat, Grapeleaf, and Quail; and R. L. Jarvis (pers. comm.). We acquired a juvenile male Trumpeter Swan from the Oregon Department of Fish and Wildlife on 9 April 1986. The swan was found freshly dead on a road shoulder near Airlie (Polk County) on 6 March 1986; it was then stored in a freezer. After the bird thawed for 2 days at room temperature, weights and measurements were taken, the liver and kidneys were removed for contaminants analysis, and the gizzard was opened and inspected. Gross examination revealed no signs of disease; a good supply of body fat was present. We found an apparently lethal wound from a bullet that penetrated one wing and the breast. The plumage was gray except for white on the tail and underside of the body. A small penis was present. The mandibles were black except for a small area that was dark pink. The legs and feet were dark gray and splotched with orange-yellow. The huge gizzard (120 x 76 mm) contained mostly sand with a little grit and plant material. No lead or steel shot was detected in the gizzard contents. Weights (g) were: whole body-11,890, liver-138.6, kidneys54.4, and heart (approximately 160.5). Measurements in cm (following procedures of Baldwin et al. [1931]) were: bursa depth-4.2, body with feathers-159.0, wing chord-63.4, tail-17.8, tarsus13.8, middle toe with claw-17.8, and exposed culmen-10.7. Body weight and measurements were within the range listed for Trumpeter Swans, but most were much larger than those of Tundra Swans (Palmer 1976). A flock of 16 Trumpeter Swans was sighted near Airlie on 17 January 1986. This is the same area where our specimen was found in March. The swan was donated to the Department of Fisheries and Wildlife, Oregon State University (Specimen #FW 5152). Recent sight records by experienced birdwatchers indicate that the Trumpeter Swan is an uncommon winter resident in the Willamette Valley (Table 1). Although Trumpeter Swans are frequently confused with Tundra Swans (Cygnus columbianus) that commonly spend the winter there (Eltzroth and Ramsey 1979) the two species usually form segregated flocks in Oregon. These sightings indicate that wintering Trumpeter Swans may be increasing in the Willamette Valley.

This dissertation explores the tension between the U.S. government’s control of information and government employees’ claims to free speech rights. The U.S. government prepublication review is a censorship system that requires former and current federal government employees to submit any materials intended for publication to their agencies for prior review before they attempt to make any external communication or proceed with any publications. The prepublication review regime has become an essential means by which the U.S. government controls internal information, and has long been controversial because of its censorship nature. Specifically, this dissertation focuses on legal disputes between the U.S. government prepublication review regime and government employees’ First Amendment rights. Because Snepp v. U.S.(1980) is the only prepublication review case the U.S. Supreme Court has ever decided and the Court has never revisited it, lower federal courts have been responsible for shaping federal government employees’ First Amendment rights in the context of prepublication review over the last forty years. Accordingly, the dissertation examines all judicial opinions involving government prepublication review and the First Amendment, issued by federal courts from 1980s (post-Snepp) to the present, and analyzes how lower federal courts, following the sole Supreme Court case, deal with the conflict between the federal censorship regime based on national security interests and government employees’ free speech rights. The dissertation found that lower federal courts can strike a relatively fair balance between the competing interests of both parties, and they will continue to employ their balancing approaches to resolve future prepublication review legal disputes. However, the courts fail to fairly recognize First Amendment values contributed by government employee speech. They stick to a conventional deference to the executive branch when it comes to national security matters.

One might infer from such plaudits that the privilege enjoys even more judicial protection than newer rights of speech and religion. Indeed, the U.S. Supreme Court may unwittingly lend support to that view by means of the contrasting ways it analyzes First and Fifth Amendment rights. The Court analyzes First Amendment rights of speech and religion by weighing individual speech and religion interests against governmental interests, and by allowing governmental interests to override individual interests whenever governmental interests are compelling. 7 In contrast, when the Court analyzes Fifth Amendment claims of privilege, the Court does not engage in balancing, at least not overtly. Although the Court occasionally finds that interests being asserted are not ones that the privilege safeguards8 or that if they are, defendants waived them,9 once the Court

This article explores the impact on students when non–university-affiliated conservative fundamentalist Christian groups conduct provocative demonstrations on campus. As university administrators work to balance free speech rights with missions of civility and pluralism, there is a need to assess and address potential adverse impacts of these sensational events. Based on a survey of 97 public university students after a controversial demonstration, we found the most adverse impact to be on students’ emotions, followed by disruption to their routines, changes to their feelings of safety, and minor consequences on academic activities. Those closer in proximity to the demonstration reported more adverse effects, and there were small differences in effects as a function of student gender, sexual orientation, and Christian identity. Counter to the ostensibly conservative aims of the demonstration, students typically reported it had little affect on their attitudes or that the demonstration made them more in favor of abortion rights, more supportive of homosexuality, and more anti-Christian. In addition, the demonstration caused many to question free speech and First Amendment rights. Results are discussed with regard to minimizing negative effects on our campus communities through the intentional involvement of faculty, campus police, and mental health service providers.

In the Name of Diversity: Why Mandatory Diversity Statements Violate the First Amendment and Reduce Intellectual Diversity in Academia

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity — ranging from core free speech protection to almost no protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for attorneys, especially when acting in a representative capacity. The access-to-justice theory of the First Amendment provides a workable methodology specific to examining the constitutionality of restrictions on attorney speech. Grounded in established free speech theories and philosophy, the access-to-justice theory ties attorney speech rights to the proper and constitutional functioning of the justice system. Rather than viewing attorney pretrial publicity as a compromise between incompatible rights to a fair trial and lawyer free speech, the lawyer’s speech right is keyed to the lawyer’s role in the justice system. Such an approach does not eliminate the free speech side of the traditional compromise. In fact, restricting certain pretrial publicity can frustrate the attorney’s role to protect a client’s life, liberty, and property. Thus the appropriate scope of free speech protection for attorney pretrial publicity is determined by examining the respective roles of the prosecutor and defense attorney in the criminal justice system and the effects of pretrial publicity by each on the proper workings of that system. Such an analysis demonstrates that the traditional compromise, as embraced in MRPC 3.6, violates the robust free speech rights of the defense attorney to protect her client’s reputation and rights to a fair trial, a just plea, and a presumption of innocence. The compromise also improperly creates false constitutional walls that have kept states from curbing their own representative, the prosecutor, from prejudicing the state’s criminal processes. The prosecutor maintains essential, but limited, First Amendment rights to engage in speech necessary for the investigation and prosecution of crime and to respond to defense-initiated publicity. Notably, the failings of the compromise work to one end: undermining the rights and constitutional processes necessary to protect the guilty and the innocent in the face of state power to forfeit life or liberty.

Common Ravens (Corvus corax L.) have been implicated as significant predators on the eggs of waterfowl and shorebirds on Malheur National Wildlife Refuge. Malheur Refuge, located in southeastern Oregon on the northern edge of the Great Basin, is one of the largest waterfowl refuges in the United States and is an important breeding area for waterfowl. In order to provide fundamental information on which a sound raven management plan could be based, research was conducted from 1975-1977 on aspects of population density, brood phenology, nesting success, seasonal use of the study area, roosting behavior, and food habits of ravens on and near the refuge. Nesting density was determined to be one pair per approximately 25 km2 . Most nests occurred in rimrocks, but trees and abandoned human structures were also used. Investigation of 87 nests revealed that the incubation period was 21 + 1 days. Incubation began with the laying of the first egg; hatching was asynchronous. Nesting period was 41 + 3 days. An original method of age-classing ravens is described. A total of 266 ravens was marked with patagial tags. Observation of marked individuals as far as 480 km from the study area suggests considerable mobility in the population. Population numbers vary seasonally, peaking in the winter. The Harney Basin is the location of an exceptionally large winter roost for ravens. Analysis of food remains, collected from 34 nests, indicates that ravens have varied diets and that there are significant differences in the diets of ravens nesting in different habitats. A correlation exists between the proportion of the diet that is avian material and the proximity of the raven nest to waterfowl production areas. 2 Based on these findings, suggestions are offered for a management plan for Common Ravens on Malheur National Wildlife Refuge.

A reconnaissance investigation of irrigation drainage was conducted during 1988-89 at the Malheur National Wildlife Refuge, southeastern Oregon. The study's objective was to determine if agricultural drainwater entering the Refuge was causing or had the potential to cause significant harmful effects to human health, fish and wildlife, or other beneficial water uses. Concentrations of arsenic, boron, mercury, and selenium in some Refuge lake water and (or) biological tissues were sufficiently elevated to exceed recommended guidelines or criteria for the protection of the health of either humans, fish or wildlife, or to affect adversely other identified beneficial uses. However, these elevated concentrations were not consistently found in all sample mediums and were, therefore, probably not causing substantial adverse affects. Small but detectable concentrations of dichlorodiphenyltrichloroethane (DOT) and metabolites, and endrin were found in lake bottom sediment. Most of the biota contained small or undetectable concentrations of organochlorine pesticides and polychlorinated biphenyls (PCBs). Although lake levels were considerably above normal in 1988, lake concentrations of several water-quality constituents were found to be much higher than those concentrations observed historically. Lake levels have continued to decline in 1989 and 1990, thus further increasing speculation that these same constituents have continued to increase in concentration. It is projected that as the lake levels approach near-normal conditions, arsenic concentrations in the water could range from 300 to 350 pg/L (microgram per liter), and boron concentrations could range from 15,000 to 20,000 Mg/L. These concentrations could result in conditions that would produce toxic effects in fish and wildlife at the Refuge. Current projections do not consider what conditions would result if below-normal lake levels are reached. The potential for these projected constituent concentrations to cause chronic and acute toxicity problems in the Refuge cannot be adequately assessed at this time. Although elevated concentrations of some constituents were found in some sample mediums, none were thought to be associated with agricultural drainwater. Therefore, it was concluded that agricultural runoff to the Refuge in 1988 was not causing significant harmful effects to human health or to fish and wildlife resources.

The reuse of old nests by open-cup nesting passerines is a seemingly rare but potentially adaptive behavior if, as a consequence, females begin to breed earlier, lay larger clutches, or fledge more young. We report an unusually high rate of nest reuse (~10% of 341 nests) for Eastern Kingbirds (Tyrannus tyrannus) breeding at Malheur National Wildlife Refuge, Oregon. We found no difference in availability of nesting habitat or food abundance in territories in which nests were and were not reused. We also found no support for the hypotheses that kingbirds benefited from nest reuse by breeding earlier, laying larger clutches, or fledging more young, and, contrary to expectations, females that reused nests laid significantly smaller eggs than females who built their own nests. Nest reuse was independent of age: a roughly equal number of females for which we had multiple years of data both reused nests and built new nests, but at different points in their lives. Competition for nest sites seems high at Malheur National Wildlife Refuge because many open-cup nesting species utilize similar nest sites in the limited zone of riparian vegetation. A shortage of high-quality nest sites, coupled with interspecific competition, may underlie the high frequency of nest reuse in this kingbird population.