Once upon a time, Ilya decided to put his scholarly chops to use in the romantic arena to increase his odds of success. He turned to both the academic and popular literatures to develop his rationalist approach to dating and shares his wisdom with listeners looking for love. How should one cope with rejection while trying to find a mate? What do many women want when it comes to men planning dates? And what did Ilya say when a woman asked to go on a first date at Arlington National Cemetery?? Come hear about Ilya's journey that ultimately led to finding happiness with his now-wife Alison!

The post "Strangers on the Internet" Podcast Episode 23: A Rationalist Guide to Dating appeared first on Reason.com.

[Seattle City Council member Kshama] Sawant has proposed an ordinance to add caste to Seattle's anti-discrimination laws. If her fellow council members approve it Tuesday, Seattle will become the first city in the United States to specifically outlaw caste discrimination….

The national debate in the United States around caste has been centered in the South Asian community, causing deep divisions within the diaspora. Dalit activist-led organizations such as Oakland, California-based Equality Labs, say caste discrimination is prevalent in diaspora communities, surfacing in the form of social alienation and discrimination in housing, education and the tech sector where South Asians hold key roles….

Suhag Shukla, executive director of the Hindu American Foundation, called Seattle's proposed ordinance unconstitutional because "it singles out and targets an ethnic minority and seeks to institutionalize implicit bias toward a community."

"It sends that message that we are an inherently bigoted community that must be monitored," Shukla said.

Caste is already covered under the current set of anti-discrimination laws, which provide protections for race, ethnicity and religion, she said.

Two comments:
(1) It's not at all clear to me that current antisdiscrimination laws cover caste discrimination. And it's almost certainly not unconstitutional for a city to ban discrimination based on caste simply because Indian Americans are disproportionately likely to be both the perpertrators and victims of such discrimination.
(2) This is yet one more example of America's absurd racial classification system. India is an extremely internally diverse of 1.5 billion people, with many different ethnic groups, languages, and religions, and of course a longstanding caste system. Yet when Indians immigrate to the US, they become generic "Asian Americans" by government fiat, and when university consider their "diversity" goals, any Indian American, regardless of appearance, religion, caste, language and so on, is not only considered indistinguishable from any other Indian American, but also from a Chinese, Filipino, or Vietnamese American.

The post Seattle Considers Banning Caste-based Discrimination appeared first on Reason.com.

As soon as the shooting ended, the 16-year-old suspect began to run and was pointing the gun towards the direction of bystanders, including 32-year-old Emanuel Duran, a Licensed to Carry Holder. As the suspect ran towards Duran and bystanders, Duran drew his handgun and shot the suspect.

At that time, one off-duty El Paso Police Officer arrived at the area of the shooting and together with Duran rendered aid to the 16-year old suspect and the others that were injured. Investigators found that there were at least two other legally armed citizens in the area of where the shooting took place, but were not involved.

Now in this case, the suspect didn't seem to have planned a mass shooting; he seems to have had a beef with the other teenagers. On the other hand, he appears to have been pointing his gun towards the bystanders, so it's hard to know what would have happened. And something similar could easily have happened with an intended mass shooting as well; for an incident like that from last year, see this WCHS-TV story:

Police said a woman who was lawfully carrying a pistol shot and killed a man who began shooting at a crowd of people Wednesday night in Charleston.

Dennis Butler was killed after allegedly shooting at dozens of people attending a graduation party Wednesday …. No injuries were reported from those at the party.

Investigators said Butler was warned about speeding in the area with children present before he left. He later returned with an AR-15-style firearm and began firing into the crowd before he was shot and killed.

"Instead of running from the threat, she engaged with the threat and saved several lives last night," Charleston Police Department Chief of Detectives Tony Hazelett said.

According to WCHS-TV (Bob Aaron), Butler was a convicted felon, and was thus not legally allowed to own guns. In principle, perhaps he might still have been stopped by (say) a law requiring background checks, which would likely have stopped law-abiding sellers from selling him the gun; but it's not clear whether someone with his criminal record would have much been stymied by that, as opposed to just buying a gun on the black market. Likewise, in El Paso, CNN reports that the gun used by the 16-year-old shooter was reported stolen.

I gathered some more examples from over the years here, and then followed up with data based on FBI reports of mass shootings in 2016 and 2017: legal civilian gun carriers tried to intervene in 6 out of 50 incidents, and apparently succeeded in 3 or 4 of them.

The FBI also has 2021 data (I don't expect the 2022 data until later this year). That reports 61 "active shooter" incidents, of which 12 were treated as "mass killing" incidents, and 4 of those active shooter incidents led to "shooters [being] killed by citizen," all apparently involve gun-wielding citizens (PDF p. 4, 11-12). Two more incidents involved citizens detaining a shooter without using guns themselves. Some of the incidents I discussed in my earlier posts involved gun-wielding citizens stopping a shooter without killing him, but none seem to have occurred that way in 2021.

A few thoughts, which I'd mentioned before, but which I thought I'd repeat:

[1.] Unsurprisingly, sometimes the good guy (or, in the West Virginia incident, gal) with a gun succeeds and sometimes not. Sometimes the success might be a lucky break; sometimes a lucky break for the defender might have ended the incident more quickly. And it's impossible to tell for sure how many lives, if any, were saved in the aggregate, because that's generally a counterfactual. Still, the aggregate pattern seems to be that armed civilian self-defense takes place in a significant fraction of active shooter incidents.

[2.] None of this proves that broad concealed carry rights on balance do more good than harm (or vice versa). But it is a response to claims that I've heard that the good guy with a gun never helps; these incidents further show that there are potential pluses to broad concealed carry rights, and of course there are potential minuses as well.

[3.] Some shootings are in places where concealed carry is not allowed, such as on school premises or in jurisdictions where concealed carry licenses are often hard to get. It's hard to tell for sure how many of the shootings fit into this category, because laws vary from state to state, and rules vary from business to business (plus in some states carrying in a business that prohibits guns is itself a crime). But it's possible that there would have been more defensive uses of guns in some cases if people were legally allowed to have their guns there.

[4.] Finally, always keep in mind that public shooting situations should not be the main focus in the gun debate, whether for gun control or gun decontrol: Active-shooter mass shootings on average account for less than 1% of the U.S. homicide rate and are unusually hard to stop through gun control laws (since the killer is bent on committing a publicly visible murder and is thus unlikely to be much deterred by gun control law, or by the prospect of encountering an armed bystander). Likewise, shootings at malls when they're open, whether they involve an active shooter or a fight that leads to a shooting and then the shooter running with possibly ambiguous intentions, are quite rare. But people talk about such public shootings a lot, so I thought I'd offer a perspective on them for those who are interested.

Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer to the El Paso story.

The post Private Gun Carriers' Self-Defense Against Public Shooters appeared first on Reason.com.

Hospitals have a common law duty to act reasonably. If they unreasonably expose patients to risk, and the patients are harmed as a result, hospitals may be liable for damages. The result: patients who can show that it is probable that they were infected with COVID-19 in a hospital, and that they would not have been if the hospital had taken reasonable measures to protect them, may be able to successfully sue hospitals for damages.

The big question is what does it mean to act "reasonably" in a world in which COVID-19 abounds and remains a leading cause of death, including for children. Over the past century, courts have developed a variety of approaches to figuring out the bounds of reasonableness. In determining whether a precaution is "reasonable," modern courts commonly consider the relative costs and benefits of taking that precaution. Where an individual causes harm because they fail to take a cost-justified precaution, they may be found negligent and required to pay for the damages they have caused.

Requiring masks in direct patient care settings is a prime example of a cost-justified precaution. Masking is a simple, effective, and low-cost measure that hospitals can take to substantially reduce the spread of COVID-19. And the benefits are significant in hospital settings. Hospitals concentrate people who, as reflected in the conditions that bring them to the hospital, are both more prone to infection and more likely to face serious consequences if infected. Moreover, both healthcare providers and patients are known vectors of transmission in healthcare institutions.

The post Do Hospitals That Drop Mask Requirements Risk Liability? appeared first on Reason.com.

Evidence made public as a result of Dominion Voting Systems slander lawsuit against Fox News reveals that Fox News executives and on-air personalities knew that Donald Trump's claims that the 2020 election was stolen from him were false.  Soon after the election, informed observers at Fox (like those elsewhere) already knew that Trump had lost legitimately. But they chose to conceal this truth on the air, for fear that broadcasting it would anger the channel's audience and lead to lower ratings:

[P]rominent [Fox] anchors like Tucker Carlson, Sean Hannity, Laura Ingraham, and Maria Bartiromo are evidently very aware that the public—or, more precisely, their public—doesn't share their view of claims of massive fraud in the 2020 election made by former President Donald Trump and his allies like lawyers Rudy Giuliani and Sidney Powell….

Documents from a defamation lawsuit brought against Fox by Dominion Voting Systems, a voting machine manufacturer whose product was implicated in the fraud allegations, show the hosts fully understood that the theories pushed by Powell et al. were, in their words, "insane" ideas from an "idiot" and a "lying," "complete nut."

Still, they permitted—even welcomed—advocates of those theories on Fox airwaves because the audience liked it. As Carlson put it, "Our viewers are good people and they believe it," though Carlson himself did not. Or, as Bartiromo agreed, "It's easier to get good ratings when you give your audience something they want to hear," and "a peaceful transition" between the Trump and Biden administrations was not what they wanted to hear. Or Hannity: "You don't piss off the base."

Rupert Murdoch, Executive Chairman of News Corp, which owns Fox, appears to have made a similar calculation. He and others at Fox feared that if the network told viewers the truth about the election, its audience would decamp, perhaps to other right-wing networks, such as Newsmax.

In addition to highlighting the cynical nature of Fox's decision-making, this incident also sheds light on the dynamics of political misinformation. Many assume that purveyors of misinformation deceive an audience that would otherwise naturally gravitate towards the truth. But, in reality, Fox was catering to its viewers' preexisting prejudices. They already believed that the election had been stolen from Trump, or at least had strong predispositions in that direction. The network was not so much forming their beliefs as pandering to them. Had it refused to do so, they might have gone to someone else who would.

This story is a particularly striking example of the ways in which the demand for political misinformation is a bigger problem than the supply. I summarized the dynamic here:

[T]he low odds that any one vote will make a difference to the outcome of an election ensure that many consumers of political information are acting not as truth-seekers, but as "political fans" eager to endorse anything that supports their position or casts the opposing party and its supporters in a bad light. These biases affect not only ordinary voters, but also otherwise highly knowledgeable ones, and even policymakers and politicians.

This demand for misinformation is the real root of the problem. If it were lower, the supply would not be much of a danger, and at the very least would not affect many voters' political decision-making.

I also previously wrote about this issue here, here, and here.

Republicans' reaction to Trump's lies about the 2020 election and to some other recent events highlight the problem of right-wing voters susceptibility to myths and conspiracy theories that reinforce their preexisting views. But left-wingers are also prone to the same dynamic. Social science research finds that bias in evaluation of political information is roughly comparable across the political spectrum. Both right and left are relatively more willing to believe misinformation that confirms their priors. Examples that primarily appeal  to the left include 9/11 "trutherism" (discussed in Chapter 3 of my book Democracy and Public Ignorance), and claims that GMO foods should be banned or because they are supposedly more dangerous than "natural" ones.

Even if driven by viewer demand, Fox's actions were still reprehensible. It is obviously unethical for news network leaders and commentators to become knowing purveyors of falsehood.

The above also should not be taken as proof that Fox's decisions had no effect. Had the network's most prominent commentators and hosts fortrightly told their viewers the truth about the election, it might have changed at least some minds (even as other viewers might have simply switched channels). Partisan Republicans may be more likely to let go of misconceptions when told the truth by opinion leaders on their "side," as opposed to partisan opponents or "mainstream media" sources, which many conservatives view with deep suspicion. "Political fans" of all stripes are likely more willing to accept unpleasant truths from players on their own team.

But the central role of viewer demand in this episode does suggest that Fox and other purveyors of misinformation are less powerful than often thought. Such influence as they have arises primarily because many people have strong preexisting prejudices that lead them to believe certain types of lies. If Fox refuses to tell them what they want to hear, they might turn to someone else who will.

The crucial role of the demand side also has implications for efforts to address the problem of political misinformation. I summarized them in previous pieces on the subject, most recently here. Among other things, it suggests we are unlikely to make much progress by trying to curb specific sources of misinformation, whether it be a social media platform like Twitter, or a network like Fox. Rather, we should seek structural solutions that reduce political polarization and shift decision-making to formats where people have better incentives to curb their prejudices and seek out the truth.

The post Fox News 2020 Election Coverage Decisions Demonstrate that Demand for Misinformation is a Bigger Problem than the Supply appeared first on Reason.com.

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But those times are gone. Prominent scholars openly speak out against judicial supremacy. And that academic theme carries over to the political realm. Indeed, Senator Wyden called on President Biden to "ignore" a district court's ruling. Not even Orval Faubus was so audacious. (My article on Cooper v. Aaron is more timely than ever.)

At least with the current administration, there is no realistic chance the President will "ignore" a ruling of a federal court. Indeed, Biden couldn't even stick to the script, and criticize the Supreme Court justices at the State of the Union. But sooner or later, the academic and political stars will align, and a President will openly flout a federal court judgment. Who will send in the 101st Airborne?

Until that time, there is a sustained attempt to undermine conservative judges. Superficially at least, these barbs are designed to criticize the legal justifications of their rulings. But there is a deeper purpose at play here. Perry Bacon Jr. said the quiet part out loud in his Washington Post column, titled There is only one way to rein in Republican judges: Shaming them.

So at least in the short term, there is only one real option to rein in America's overly conservative judiciary: shame.

Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges. A sustained campaign of condemnation isn't going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones.

Bacon names and shames federal judges who halted the student loan cancellation policy (Erickson, Grasz, Pittman, and Shepherd), judges in the CFPB funding case (Engelhardt, Willett, and Wilson), and judges in a recent Second Amendment case involving domestic violence restraining orders (Wilson, Ho, and Jones). We should thank Bacon for helping to assemble the next Supreme Court shortlist.

Of course, the locus of the shaming is the Supreme Court's "swing" vote, Justice Kavanaugh.

This kind of shaming has already been shown to work. . .  Many of the opinions of Kavanaugh, who is now the court's swing justice, seem almost intentionally written to minimize public blowback.

I think Justice Kavanaugh is a different type of swing vote than were Justices Kennedy, O'Connor, and Powell. These jurists were truly moderate. They had liberal and conservative tendencies that often tugged them in different directions. By contrast, I think Kavanaugh is a profoundly conservative jurist, but he is often pulled to the left by public perception. His concurrences illustrate this internal struggle. Bacon agrees:

[Kavanaugh] seems to want to be respected by people across the political spectrum as a fair-minded judge. People on the left need to make clear he won't get that respect if all he does is issue opinions that align with what the Republican Party wants.

Newsflash: Kavanaugh will never gain respect from the left. Never, no matter how many concurrences he writes. The second sentence in Justice Kavanaugh's obituary will reference Dobbs and the third sentence will reference Christine Blasey Ford. His verdict is already written. It is impossible to appease these critics. Remember, virtually every piece written about Justice Thomas's 30th anniversary featured a discussion about Anita Hill.

Still, Bacon should be commended for his candor about Kavanaugh. Bacon also has the candor to admit he agrees with Trump!

In their thinking about the judiciary, Democrats should be more like Trump. While in office, Trump criticized a ruling he didn't like by casting the judge who wrote it as an "Obama judge." Roberts then issued a sanctimonious statement, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges."

But at least right now, Trump is right. Roberts and his colleagues are acting like Republicans, not judges — and Democrats should say that loudly and often.

Even if Biden won't act, Bacon urges other prominent Democrats to carry the mantle:

While the president should highlight the worst rulings, he doesn't have time to attack them all. So there should be a high-profile Democratic politician in a safe seat (perhaps House Minority Leader Rep. Hakeem Jeffries of New York) who each week holds a news conference to slam the most extreme rulings by GOP judges.

And what if these attacks lead to threats and violence? So be it, Bacon writes:

There will be arguments that such high-profile criticism would put judges in physical danger. I obviously oppose violence. But judges are powerful figures setting policy — they should get as much scrutiny as elected officials. No one argues that Biden is imperiling the life of Florida Republican Rick Scott, even though the president has repeatedly named Scott while criticizing the senator's Social Security proposals.

The switchboard in Amarillo federal courthouse should record how many calls were received in the past few days from Oregon.

I'm still waiting for the Chief Justice to release a statement about Senator Wyden. These attacks will become more and more common.

The post WaPo Columnist Says The Quiet Part Out Loud About Attacks On The Judiciary appeared first on Reason.com.

I'll start with the statutory problem that prompts the Dubin case; then turn to the case itself; and conclude with my own views.

A. The Mess of Statutory Drafting That is 18 U.S.C. § 1028A.

First, some context. Section 1028A was enacted in 2004 at a time when there was a lot of concern about computer crimes and credit card fraud.  Aided by "cyberspace," criminals were using the identity information of innocent consumers to get new credit cards in their names that were then used by the criminals fraudulently in ways that caused endless headaches for consumers who were then stuck with the fraudulent purchases on their credit record.  This using of an innocent person's identifying information to get a bogus line of credit, sticking them with the consequences, was being known as "identity theft." And it was a big concern.

So what did Congress do?  A natural thing would have been to enact a law adding a sentencing enhancement for fraud that caused those personal harms to innocent victims.  That is, treat the harm—bad credit scores, the incurring of debts to others, etc.—as a result element that, if caused, triggers greater criminal liability.

But that is not what Congress did.  Instead, Congress wrote this statute, titled "Aggravated Identity Theft":

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Here's the key: Instead of focusing on the causing of the harm, Congress tried to describe the extra-bad act that was generally associated with the extra-bad harm.  And what was that extra-bad act?  Congress figured, well, someone who was already committing some kind of fraud-based predicate felony (bad) was using identity information without the person's permission (extra-bad).   So in addition to the liability they had for the already-existing fraud-based felony, a criminal who uses the identifying information as part of that felony gets an extra two years in jail for using the identifying information.

At this point, you can probably see some problems with how the statute is drafted.  There are two big problems, I think, and they are related.  First, Congress did a lousy job describing the fraud-based felonies that can act as a predicate offense.  Instead of saying the predicate offense had to be a fraud crime, Congress looked to various parts of Title 18 and included large swaths of the code that seemed to have some kind of connection to fraud.  When you look at the predicate felonies in subsection (c), there are 11 different areas of Title 18 that are included as predicates.  Some of those sections are about fraud.  But some aren't.  Some were just codified near sections about fraud.

The second problem, and the one more directly relevant to the Dubin case, is that Congress did a terrible job describing the extra-bad act.  The extra-bad thing the drafters were thinking about was using identity information in a way that caused the person to whom the information related to suffer harms such as bad credit scores or being stuck with the bill.  But Congress instead wrote the extra-bad act in a very abstract way.  In the statute, the extra-bad act is described as "knowingly transfer[ing], possess[ing], or us[ing], without lawful authority, a means of identification of another person" . . . "during and in relation to" one of the predicate offenses.

Yikes.  So during and in relation to one of these possibly-but-not-necessarily fraud-related predicate offenses, a person has to do something about a "means of identification of another person" without that person's permission?  I mean, that could mean almost anything.

And the stakes are high.  A lot of crimes are technically felonies under Title 18 but are pretty low-level felonies, the kind of thing likely to lead to probation or at most a short prison term. But if § 1028A applies, it tacks on a two-year prison sentence.  So you could have a probation offense that becomes a two-years-in-jail offense if § 1028A is triggered, with the § 1028A punishment dwarfing the predicate felony punishment.

All of this prompts a natural question about how to construe the statute.  Do you construe § 1028A broadly, to mean as far as the statutory language might in theory go, even if it ends up causing odd results?  Or do you construe the statute narrowly in light of the problem Congress was trying to solve?  That is the problem at the heart of the Dubin case.

B. The Dubin Case

The case before the Court, Dubin v. United States, is pretty simple.  David Dubin helped submit a false bill to Medicaid concerning a psychological exam for a particular patient.  The exam was given, but the bill gave a false date for it in a way that qualified it for payment. That false bill included the patient's name and Medicaid ID number on it.  The government charged Dubin with fraud for the improper bill, a charge no one disputes here.  The disputed part is that the government added an additional count of aggravated identity theft because the bill included the patient's name and Medicaid ID number, which are "means of identification" of the patient.

From the discussion above, you can pretty much predict what the briefs argue.

Wait, Dubin says, how can I get another two years in jail just because the bill included the patient's name and Medicaid ID number?  This has nothing to do with identity theft, which after all is the title of the crime. The patient isn't a victim here.  The fact that the patient's name and ID number was used is incidental to the fraud scheme.  You have to construe the statute more narrowly to focus on actual acts of identity theft.

But no you don't, says the government. Just look at the text of the statute. Dubin "used" a means of identification of the patient "in relation to" committing health care fraud, a predicate felony.  The text governs, and the text is satisfied. So Dubin is guilty.

There's also a narrower debate in the briefs about how the "without lawful authority" element applies to the facts.  Dubin says that wasn't satisfied because the patient authorized using his identifying information to submit bills to Medicaid. So use of the identifying information was authorized. The government replies that the notion of authority has to be interpreted more narrowly. The patient authorized submitting bills to Medicaid, but that was exceeded by submitting a fraudulent bill.

Amicus briefs in support of Dubin were filed by NACDL, the National Association of Federal Defenders, and Professor Joel Johnson.

C. My Thoughts on the Case

I think Dubin has the better argument on the whole, whether the Court wants to rule more narrowly or more broadly.

On the broad issue, I'm a fan of construing vague criminal statutes narrowly, so it's easy for me to be on Dubin's side there.  But I think Dubin also has a good textual argument, under the interpretive principle that "Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes." Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001).

Under the government's reading, § 1028A is an elephant. It essentially overrides Congress's carefully considered judgments about punishment for dozens of statutes.  Congress has written out detailed provisions for the statutory punishments and enhancements of offenses in Title 18.  Given the large number of crimes that are predicate offenses for § 1028A, and that the extra two years of punishment for violating 1028A is such a heavy hammer, the government's interpretation would mean that the careful judgments throughout Title 18 would be subsumed by § 1028A.  I think the Court should be cautious about construing the statute to have that kind of massive multi-section effect, especially given the weird results it would cause.

Dubin's reply brief addresses this argument, but let me give an example that shows how broadly the government's 1028A elephant steps.   The federal computer hacking statute, known as the Computer Fraud and Abuse Act (CFAA), is found at 18 U.S.C. § 1030.  Although most CFAA crimes have nothing to do with fraud, any felony violation of § 1030 is a predicate offense for § 1028A. This is because one of the eleven categories includes "any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7)." 18 U.S.C. § 1028A(c)(4).  That chapter refers to Title 18's Chapter 47, spanning § 1001 to § 1040.  That's a lot of crimes!  And it means that any felony violation of the CFAA is a felony predicate for aggravated identity theft, whether it has to do with fraud or not, just because the CFAA was placed within Chapter 47.

The government's interpretation of § 1028A would lead to bizarre results for CFAA sentencing. Congress has been really specific in drafting the punishments for CFAA violations.  It has carefully described what is a felony and a misdemeanor, and what the statutory maximum punishment should be for various felonies, see 18 U.S.C. § 1030(c).  It has thought carefully about whether there should be mandatory minimums for CFAA violations; it added 6-month mandatories for some CFAAA in the 90s, and then removed them in 2001 after the minimums proved a failure.  And it has tasked the Sentencing Commission with rethinking Guidelines offenses for Section 1030 offenses. See Homeland Security Act of 2002, Pub. L. 107-296 § 225(b), (c).

If the government's interpretation of § 1028A is correct, however, what really matters for CFAA punishment is whether the hacking involved someone else's password.  If you hack into someone's account by exploiting a security flaw, that's just a standard CFAA offense and you'll probably get probation unless a lot of dollar loss occurred.  But if you hacked into someone's account by using their password without permission, now you're in deep trouble: That password is a "means of identification" under § 1028A, so now your hacking is Aggravated Identity Theft and you'll go to prison for two years because a password was used.  (This isn't a hypothetical; see United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011), in which this reasoning was used, and at least on plain error review, upheld.)

Under the government's view, all the careful statutory work Congress has put into CFAA sentences would be largely beside the point.  And it would lead to a bizarre result, in which using a person's password would become the most important question in determining punishments for hacking.  It's all very odd, and very far removed from anything resembling identity theft.  Replicate that process for all the other predicate felony offenses covered under § 1028A(c), and it seems unlikely that the vague language of § 1028A should  effectively supplant all those other statutory punishment sections.

It's possible that the Court would instead resolve Dubin on narrower grounds, such as the "without lawful authority" element. I think Dubin has the better argument there, too. As I see it, this is similar to the issue the Court grappled with recently in Van Buren v. United States, 593 U.S. ___ (2021), on what "exceeds authorized access" and "without authorization" mean under the federal computer hacking statute. Like Van Buren, Dubin had authorization to use the relevant information, but then used it to do something he wasn't supposed to do. The parties (represented by the same lawyers as in Van Buren, as it turns out) are arguing over similar ground as in Van Buren, it seems to me. The question: Does authorization include having information you're allowed to use but then putting it to other uses? I think the answer following Van Buren should be "yes," which, as I have detailed here (see pages 181-84), matches the traditional treatment of lack of authorization elements in other criminal statutes.

As always, stay tuned.

[UPDATE: I have fiddled a bit with this after posting to correct typos, etc.]

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Because the brief is on my own behalf, my only interest is in getting things right, not in serving a particular client. I therefore thought I'd post it here, and ask for any suggestions for how it can be improved or corrected; please post them in the comments, or e-mail me at volokh at law.ucla.edu. Thanks!

[* * *]

Summary of Argument

The "speech integral to criminal conduct" exception is a tremendously important feature of First Amendment law. It is the basis for criminalizing solicitation of crime. Volokh, 101 Cornell L. Rev., supra, at 991-93. It has also historically influenced the incitement exception, id. at 993-97, the fighting words exception, id. at 997, the child pornography exception, id. at 999, and the true threats exception, id. at 1003.

It is therefore important that the boundaries of the doctrine be defined precisely, and not unduly broadly. In particular, because the premise of the doctrine is that speech should be legally tantamount to the crime to which it is integral, only solicitation of criminal con­duct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct—such as solicitation of remaining in the country unlawfully, U.S. Br. at 38—cannot be made criminal, though this Court's recent cases suggest that it can be punished civilly.

Argument

I. Solicitation may be criminally punished as "integral to criminal conduct" only if it consists of solicitation of crime

Who cut Samson's hair? Many would quickly answer, "Delilah." But the Bible actually says (Judges 16:19 (King James)),

And she [Delilah] made him sleep upon her knees; and she called for a man, and she caused him to shave off the seven locks of his head . . . .

The hair was not cut by Delilah herself, but we not only treat Delilah as culpable for the conduct she ordered—many of us actually remember the story as involving Delilah's actions. This reflects the deeply held moral intuition that ordering a thing done is tantamount to doing it oneself.

The criminal law likewise often treats ordering an act done, or soliciting its doing, or aiding and abetting its doing, as simply other ways of committing the act. The Model Penal Code, for instance, states that "A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable," including through purposefully "solicit[ing]" or "aid[ing]" the commission of the crime. Model Penal Code §§ 2.06(1), (3). (The Code also includes a separate offense of solicitation, id. § 5.02(1), for situations where the solicited crime is not committed; but it provides that solicitation is generally a "crime[] of the same grade and degree as the most serious offense that is . . . solicited," id. § 5.05(1).) And this reflects longstanding American criminal law principles: "every man whose intent contributes to the act, in any degree which the law can notice, is in law a partaker of the crime." Joel Prentiss Bishop, Commentaries on the Criminal Law § 264, at 233 (1856).

This Court's decision in United States v. Williams, 553 U.S. 285 (2008), builds on this principle: "Offers to engage in illegal transactions are categorically excluded from First Amendment protection," id. at 297 (citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949))—as is solicitation of illegal transactions, id. at 298. And Giboney did indeed punish speech that in effect solicited the crime of restraint of trade, because the First Amendment does not protect "speech or writing used as an integral part of conduct in violation of a valid criminal statute." 336 U.S. at 498; see Volokh, supra, 101 Cornell L. Rev. at 989-97. When a statute validly criminalizes conduct—whether murder, distribution of child pornography (such as in Williams), restraint of trade (such as in Giboney), or criminal immigration violations—then soliciting violations of such a statute can generally be criminalized, too.

But while this longstanding traditional approach can justify criminally punishing speech that is integral to the commission of a crime, that is so precisely because the speech is related to a crime. Giboney, which is often cited as authority for this exception, expressly stated, "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." 336 U.S. at 498. Other cases have done the same. See, e.g., New York v. Ferber, 458 U.S. 747, 761-62 (1982) (likewise); Osborne v. Ohio, 495 U.S. 103, 110 (1990) (likewise); United States v. Stevens, 559 U.S. 460, 468 (2010) (citing Giboney but using "speech integral to criminal conduct" as a generic name for the exception); United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opin.) (likewise). Indeed, this Court's earliest endorsement of criminal punishment of encouragement of crime, in Fox v. Washington, stressed that "encouragements . . . directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor if not an accomplice or a principal in the crime encouraged." 236 U.S. 273, 277 (1915) (emphasis added).

To be sure, in Rumsfeld v. FAIR, this Court extended this principle to civil regulation of speech that is an integral part of civilly regulated conduct:

The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment's regulation of conduct, and "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949).

547 U.S. 47, 62 (2006). And the opinion likewise noted that, under the same logic,

Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct. See R. A. V. v. St. Paul, 505 U. S. 377, 389 (1992) ("[W]ords can in some circumstances violate laws directed not against speech but against conduct").

Id. See also Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 398 (1973) (Douglas, J., dissenting) ("There comes a time, of course, when speech and action are so closely brigaded that they are really one.") (citing Giboney as an example); IBEW v. NLRB, 341 U.S. 694, 705 (1951) (upholding, with little discussion, civil prohibition on inducement of civilly actionable secondary pressure); Int'l Bhd. of Teamsters v. Vogt, Inc., 354 U.S. 284, 293 (1957) (likewise approving of courts civilly "enjoin[ing]" picketing that was connected to violation of "civil law").

But this reasoning focuses on equating conduct and speech that is integral to the conduct. The regulation of speech is seen as incidental to the conduct. Posting a sign threatening discrimination is viewed as itself a form of discrimination. The reasoning does not suggest that the speech can be punished more severely than the conduct.

The First Amendment often justifies protecting speech more than related action, as when abstract ad­vo­cacy of crime is protected. It may sometimes tolerate treating speech as equally punishable with action. But it cannot allow treating speech as more punishable than the action that it encourages.

Thus, for instance, the government cannot "afford[] a greater degree of protection to commercial than to noncommercial speech," Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981) (plurality op.), because that would "invert[ the] judgment" that "noncommercial speech [is accorded] a greater degree of protection than commercial speech," id. Likewise, the government cannot afford a greater degree of protection to conduct than to noncommercial speech that is supposedly "integral" to that conduct: that would invert the constitutional judgment that speech is accorded a greater degree of protection than other conduct.

More broadly, when the government "attempts the extraordinary measure" of punishing speech, "it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly." Florida Star v. B.J.F., 491 U.S. 524, 540 (1989). This Court held so with regard to a ban on publishing the names of rape victims, which covered only the media and not "the smalltime disseminator." Id.; see also id. at 541-42 (Scalia, J., concurring in the judgment). But the same logic applies here: When the government attempts the extraordinary measure of punishing speech urging certain action, it must demonstrate its commitment to advancing its interests by generally applying its prohibition evenhandedly to the action and not just to the speech.

To be sure, the solicited actors may in some situations escape criminal liability based on the specific facts of the case. The solicitor, for instance, may know of the circumstances that make an act criminal, but the direct actor might not know and thus lack the required mens rea—e.g., if Susan solicits Agnes to transport something, and only Susan (not Agnes) knows that it is contraband. Cf. Model Penal Code § 2.06(2)(a) (holding people accountable as accomplices when they cause "an innocent or irresponsible person to engage in [prohibited] conduct"). Or the direct actor may be insane or underage, while the solicitor is fully competent. Id.

But that does not change the broader principle: Solicitation of conduct can be treated as criminal, on the theory that it is integral to the underlying conduct, only when the underlying conduct is itself criminal—whether or not the particular solicited person is, under the peculiar circumstances of the case, legally culpable for the crime.

II. Solicitation of suicide, if it can be punished, can only be punished under strict scrutiny

In the Sineneng-Smith oral argument, a question from the bench asked whether speech soliciting suicide fits within the "speech integral to criminal conduct" exception. Oral Arg. Tr. at 34-35, United States v. Sineneng-Smith, No. 19-67 (2020). The answer is no; any restriction on such speech must be judged under strict scrutiny, though it is possible that it might pass muster under that test.

The Minnesota Supreme Court dealt with this very question in State v. Melchert-Dinkel, 844 N.W.2d 13 (Minn. 2014). It reasoned,

[T]he major challenge with applying the "speech integral to criminal conduct" exception is that suicide is not illegal in any of the jurisdictions at issue. The holding in Giboney specifically stated that the exception was for speech integral to conduct "in violation of a valid criminal statute," and there is no valid statute criminalizing suicide here. It is true, as the court of appeals noted, that "suicide, despite no longer being illegal in Minnesota, remains harmful conduct that the state opposes as a matter of public policy." But the Supreme Court has never recognized an exception to the First Amendment for speech that is integral to merely harmful conduct, as opposed to illegal conduct.

Applying the "speech integral to criminal conduct" exception to harmful conduct would be an expansion of the exception, and following the guidance of the Supreme Court, we are wary of declaring any new categories of speech that fall outside of the First Amendment's umbrella protections.

Id. at 19-20 (citations omitted). And this analysis is correct. Broadening the integral-to-criminal-conduct exception to cover solicitation of merely harmful conduct would unmoor the exception from its rationale—speech would be criminalized not just as part of the criminalization of the conduct, but even when the conduct is noncriminal. And such broadening would yield an exception with no discernable boundaries: The government would have a free hand to bar a wide range of speech so long as it counsels behavior that the government views as "harmful."

After all, the speech-integral-to-criminal-conduct exception is not limited to speech integral to deadly criminal conduct. It is not limited to speech integral to violent conduct—consider Williams itself, which involved solicitation of a nonviolent crime. It is not even limited to speech integral to extremely serious criminal conduct. Solicitation of restraint of trade, for instance, is punishable, as Giboney illustrates. Solicitation of criminal public nudity was given, in Fox v. Washington, as an early example of criminally punishable solicitation. Solicitation of vandalism would likely be criminally punishable, too.

If solicitation of merely harmful but legal conduct were treated as punishable, then that would likewise extend far beyond solicitation of suicide, and cover solicitation of far lesser conduct that the government declared to be harmful. This Court has rightly rejected such uncabined extensions of historically recognized exceptions. See, e.g., Stevens, 559 U.S. at 468-70 (declining to extend the integral-to-criminal-conduct exception to distribution of visual images depicting harm to animals, when that harm was not criminal).

Instead, if this Court concludes that certain kinds of speech soliciting or aiding suicide should be criminalizable, it should do so by recognizing that the speech does not fall within an exception, and that restrictions on the speech must be judged under strict scrutiny. The Minnesota Supreme Court in Melchert-Dinkel did precisely that in upholding a ban on speech that assists suicide, 844 N.W.2d at 22-23, after concluding that "the State has a compelling interest in preserving human life," id. at 22. And the court likewise applied strict scrutiny in evaluating a ban on speech that advises or encourages suicide, but held that the particular Minnesota statute in that case was overinclusive with regard to the government's interest. Id. at 23-24.

III. Speech seeking to engage in a criminal transaction can be criminalized even when the transaction is criminal only for one side

In the Sineneng-Smith oral argument, counsel for the United States suggested that the government "could decide to make prostitution a civil offense and still criminally punish recruiting prostitutes." Oral Arg. Tr. at 29, United States v. Sineneng-Smith, No. 19-67 (2020). This responded to a question from the bench noting that sometimes a person's participation in an offense "is not made criminal because of the vulnerable position of the person who is engaging in that act." Id. at 29. See also U.S. Br. at 44 (arguing that "A legislature's choice to, say, make prostitution a civil rather than criminal offense should not come at the price of constitutionally invalidating criminal sanctions against facilitating or soliciting prostitution.").

Indeed, acting as a pimp or as a brothel owner can be criminalized as profiting from another's prostitution, even if the prostitution is merely a civil offense—such moneymaking behavior is not itself speech. "[R]ecruiting prostitutes" into participating in this behavior could also be criminalized, as integral to the crime of profiting from another's prostitution.

Likewise, say the law makes it merely a civil offense—or no offense to all—to sell sex (in order to diminish the "vulnerable position" of prostitutes), but a crime to buy sex. Whether or not such an approach is sound, it would not violate the First Amendment. And criminalizing speech that seeks to buy sex would thus be constitutional, because it would simply be an attempt to commit a crime (buying sex).

But the government could not make prostitution a civil offense and still criminally punish merely urging someone to become a prostitute. Once the government concludes that prostitution should not be a crime, speech related to such noncriminal conduct must be noncriminal as well.

IV. The "speech integral to criminal conduct" exception needs to be properly cabined

More generally, the "speech integral to criminal conduct" needs to be defined clearly and not unduly broadly. It potentially covers a wide range of activity, far beyond just solicitation, and thus potentially opens the door to the government punishing any behavior that seems in some way connected to some behavior that is criminal, or civilly actionable, or just dangerous.

Indeed, lower courts have already overread the exception. To give just one example, the Ninth Circuit upheld a ban on sexual orientation conversion therapy of minors on the theory that:

"Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional's speech is incidental to the conduct of the profession." . . . . [A]n application of the First Amend­ment [to restrictions on medical and mental health treatments that involve speech] would restrict unduly the states' power to regulate licensed professions and would be inconsistent with the principle that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney, 336 U.S. at 502.

Pickup v. Brown, 740 F.3d 1208, 1229 (9th Cir. 2013) (citation omitted).

But that cannot be the right analysis. When a psychotherapist counsels a patient about how the patient might try to suppress his same‑sex sexual attraction, the psychotherapist is not promoting or threatening any separate crime or tort. He is just conveying advice, or teaching a patient how to avoid some legal behavior and to engage in other legal behavior instead.

He may be doing this over an extended set of interactions (a "course of conduct" in that sense of the phrase), but that does not make the speech regulable. A constitutionally protected lecture does not become unprotected when it becomes a lecture series. Advocacy of a political boycott does not become unprotected just because it consists of a "course of conduct" that includes speaking, gathering names of people who aren't complying with the boycott, and publicizing those names. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909-10 (1982).

In all these cases, including in the professional‑client speech case, there is no "course of conduct" to which the speech is "integral" or "incidental" apart from a course of speech. We can call the speech "professional consultation" or "psychotherapy," but speech is all that it is. Just as the proposed offering of advice to terrorist groups about their international legal options was treated as speech in Holder v. Humanitarian Law Project, 561 U.S. 1, 27-28 (2010), so the proposed offering of advice to a patient should be treated as speech as well. Perhaps, as in Holder, the speech could still be regulated, whether because the restriction passes strict scrutiny or because there is some special rule for professional-client speech (or such speech to minors). But the "speech integral to criminal conduct" exception sheds no light on the situation, precisely because there is no criminal conduct to which the speech is integral.

As the Third Circuit pointed out in dealing with such a ban in King v. Governor,

Given that the Supreme Court had no difficulty characterizing legal counseling as "speech," we see no reason here to reach the counter‑intuitive conclusion that the verbal communications that occur during SOCE counseling are "conduct." Defendants' citation to Giboney v. Empire Storage & Ice Co. does not alter our conclusion.

767 F.3d 216, 225 (3d Cir. 2014); see Volokh, supra, 101 Cornell L. Rev. at 1043-49 (discussing the misapplication of the "speech integral to criminal conduct" exception in Pickup, and the criticism of that misapplication in King). See also Otto v. City of Boca Raton, 981 F.3d 854, 865 (11th Cir. 2020) (likewise rejecting the argument that regulations of sexual orientation change efforts were merely "incidental [regulations of speech] swept up in the regulation of professional conduct"; "the ordinances are direct, not incidental, regulations of speech" and "are not connected to any regulation of separately identifiable conduct").

Other courts have misapplied the speech integral to criminal conduct exception to "criminal harassment" cases, on the theory that even pure speech can be punishable as criminal harassment because it is integral to the crime of harassment itself. See Eugene Volokh, Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases, 45 Harv. J. L. & Pub. Pol. 147, 184-89 (2022) (noting such cases, and other cases that have criticized such misapplications). Yet "[t]here is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) (Alito, J.). And the combination of a criminal harassment statute and the "speech integral to criminal conduct" exception cannot create such an exception: Such a justification for the criminal harassment statute "is circular—the speech covered by the statute is integral to criminal conduct because the statute itself makes the conduct illegal. That is not the test for speech integral to criminal conduct." Matter of Welfare of A.J.B., 929 N.W.2d 840, 859 (Minn. 2019).

To be sure, lower courts sometimes do err in applying even settled First Amendment law. But the speech integral to criminal conduct exception is in particular need of careful and suitably narrow definition. This Court should reaffirm that speech can be criminalized as integral to criminal conduct only if it is closely linked to other conduct (besides the assertedly criminal speech itself), and to other criminal conduct (and not just civilly actionable conduct).

Conclusion

Speech integral to criminal conduct, such as solicitation of crime, can be criminalized, because the speech is closely linked to the conduct itself and can thus be treated similarly. But the speech-integral-to-criminal-conduct exception cannot justify punish speech more than the conduct to which it is integral.

The post Crowd-Checking Forthcoming Amicus Brief on the Solicitation Exception in <i>U.S. v. Hansen</i> appeared first on Reason.com.

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Yesterday, the Supreme Court canceled previously scheduled oral arguments in Arizona v. Mayorkas, a case involving Title 42 "public health" expulsions of migrants at the southern border. The Court didn't give a reason for the cancellation, nor did it indicate whether the arguments are going to be rescheduled. But most likely, the justices called off the oral argument because they think the case will soon become moot, thanks to the Biden Administration's plan to terminate the Covid-19 national emergency by May 11.  If so, the Court's termination of the argument might pave the way for Title 42 expulsions to end in the near future.

Title 42 expulsions were instituted by Donal Trump in March 2020, for the ostensible purpose of preventing the spread of Covid to the United States, and later continued by Biden. The current version of the Centers for Disease Control order authorizing expulsions says they are scheduled to end whenever the Covid state of emergency is lifted.

The issue before the Court only involves a motion for intervention in the case filed by a group of red states who claim the Biden Administration wasn't defending Title 42 aggressively enough. The justices were not planning to consider the underlying issue of whether Title 42 expulsions are legal. But if the intervention issue is moot, it is because the same thing is true of the case as a whole.

If that really is the view of the Court, then I would expect them to soon lift their stay of the district court injunction mandating an end to Title 42 expulsions. That would require the Biden Administration to terminate the policy even before May 11.

Even if the stay isn't lifted before May, the conclusion that the Arizona v. Mayorkas is moot also implies that the same thing is true of a separate case in which a district court in Texas ruled that it was illegal for the administration to terminate the policy without going through the notice and comment process required by the Administrative Procedure Act.

I discussed the status of the two Title 42 cases and interaction between them in greater detail here and here. As explained in those previous posts, if the Supreme Court lifts the stay of the injunction against Title 42 expulsions, that one will likely take precedence over the one blocking the Administration's attempt to end the policy.

It's theoretically possible that Supreme Court just plans to reschedule the oral argument for a later date. It's also possible that the two Title 42 cases will not become moot for reasons I summarized in my last post on this topic:

The cases won't become moot until May 11. It would be unusual for the Supreme Court and the Fifth Circuit (which is handling the ruling against the effort to end expulsions) to complete all their deliberations so quickly. But they could potentially do so. The courts might also find technical reasons to conclude that one or both of these cases remain live controversies….

In addition, the Administration could potentially decide to extend the Covid emergency again…. For a long time, Biden has been playing a kind of double game with Title 42 expulsions, simultaneously claiming to want to end them, yet also continuing to defend them in court and even expand their use. As with Trump before him, Biden's use of Title 42 expulsions has been guided far more by political considerations than scientific ones. It's possible that the Administration will reverse course again, if it sees some advantage in doing so.

Despite these caveats, I think the most likely scenario is that the cases will indeed become moot, and Title 42 expulsions will likely end by May 11, or perhaps even before that time. Yesterday's announcement makes that even more probable than before. Amng other things, the cancellation of the Arizona v. Mayorkas oral argument makes it even less likely that the Supreme Court will decide that case before May 11.

In my view, Title 42 expulsions were illegal from early on, once it became clear that Covid-19 was established in the United States. Trump and Biden deserve severe censure for continuing this illegal and extraordinarily harmful policy long past the point where it was clear it has no real public health benefits.

I would have preferred for the courts to simply rule the policy is illegal. But mooting out the cases involving the policy may be preferable to continuing the litigation for many more months, during which time expulsions might have continued.

We will likely soon have a more definitive resolution of the mootness question. But the cancellation of the oral argument is a strong indication that the Supreme Court is moving in the direction of embracing the Biden Administration's position that these cases are going to become moot by May 11.

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Documents attached to a motion for summary judgment are subject to the First Amendment [right of access to court records] standard, even if the documents were "the subject of a pretrial discovery protective order." … [D]iscovery is "ordinarily conducted in private," while dispositive motions can "serve[ ] as a substitute for trial["] ….. Thus, … access can be restricted only if there is a compelling countervailing interest. Any such restriction must be narrowly tailored….

The bulk of the material that the Defendants seek to seal consists of expert reports and discovery documents that were subject to a protective order based on asserted proprietary business interests. Protection of trade secrets may, in some circumstances, be sufficient to justify sealing documents. However, the party seeking to restrict access bears the burden of demonstrating specific reasons sufficient to overcome the public right of access.

The Defendants offer only a bare assertion that these documents contain confidential and proprietary information, including trade secrets. They do not identify specific information that constitutes trade secrets or proprietary business information, and they do not detail the harm that would result from public access to that information.

The documents the Defendants seek to seal are central to this litigation and the dispositive motions at issue. Sealing the expert reports and other material in their entirety would leave anyone reviewing the motions, and any opinion resolving the motions, without the ability to discern core information and evidence.

Although the Court is currently unaware of any substantial public interest in this case, public access is designed not only to allow the press and the public to follow high-profile cases, but also to permit ongoing and future access. Law students or legal scholars review case files for law review articles, attorneys review past cases when similar litigation arises, and litigation may be a source of information for policy-makers considering, for example, safety regulations or for journalists reporting more broadly on either the courts or the subject matter of particular litigation.

Thus, even absent a third party intervening to oppose the motion to seal or to request access, the Court cannot seal material protected by the First Amendment right of access without making the finding, with specific support, that some compelling countervailing interest warrants protecting the information at issue and that a less drastic alternative, such as redaction, is unworkable. Upon review of the materials, the Court does not find that they are so saturated with obviously confidential information that sealing is appropriate.

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Appointees to a university committee created to satisfy federal legal requirements [related to animal welfare in research] sought to enjoin the university from releasing the letters appointing them to the official committee. {People for the Ethical Treatment of Animals (PETA), an organization opposed to the use of animals in research, [had] filed a public records request with the University pursuant to Washington's Public Records Act (PRA).} The appointees claimed that the disclosure of such letters, which contain their personal identifying information {such as names, email addresses, office addresses, and work affiliations}, would violate their First Amendment right of expressive association.

The district court held that there was a serious question on the merits of that argument and preliminarily enjoined the disclosure. We disagree. The committee members' performance of their official duties is not protected by the First Amendment right of expressive association, and so the disclosure of public records that relate to performance of such duties does not impinge on that right….

The [Supreme] Court has recognized that "[a]n individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed." … This constitutional right of expressive association may be infringed by compelled "disclosure of the fact of membership in a group seeking anonymity," because the "[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."

Not all groups, however, are entitled to this First Amendment protection; it can be invoked only by those groups actually engaged in expressive association. Individuals engage in expressive association when they join with others to pursue "a wide variety of political, religious, cultural, or social purposes," including the advocacy of both public and private points of view, the advancement of beliefs and ideas, and the transmission of "a system of values." Members involved in such endeavors are generally protected in expressing the "views that brought them together." …

The facts of this case preclude the Committee members' argument that disclosure of their letters of appointment pursuant to the PRA impermissibly impinges on the sort of expressive association that the First Amendment protects. The letters of appointment exist (and are part of the University's public records) only because the Committee members were appointed by the University according to statutory and regulatory criteria to ensure diverse representation. Their "group association" as Committee members is not intended to enhance effective advocacy of their views or "to pursue their lawful private interests," but rather to fulfill federal requirements. The Committee is not akin to a private association where members choose their own purposes and decide how to advance them; here, federal law prescribes both the Committee's purpose and its functions. Because, in performing their work on the Committee, the members are not engaged in an association deemed to be "expressive" under Supreme Court or our precedent, the First Amendment right of expressive association does not protect them from the University's disclosure of personal identifying information contained in their letters of appointment.

Our conclusion that a committee formed by the government to discharge an official purpose is not engaged in expressive association is consistent with cases holding that the First Amendment does not protect the speech of public employees speaking "pursuant to their official duties." Garcetti v. Ceballos (2006). Under Garcetti, only "when an employee speaks as a citizen addressing a matter of public concern" do the Supreme Court's "cases indicate that the First Amendment may be implicated." The rationale behind this approach is that the government "may impose certain restraints on the speech of its employees" that would be "unconstitutional if applied to the general public," because "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." … [T]he rules governing public employee speech also apply to government volunteers, as well as independent government contractors and business vendors.

Here, the Supreme Court's jurisprudence governing public employee speech points to the same conclusion as its jurisprudence governing expressive association. The right of expressive association protects the sort of collective efforts that would be protected by the First Amendment if pursued on an individual basis. But here the Committee members are analogous to government volunteers or contractors because they were appointed by the University to serve its public function. And because an individual member's committee work (such as the preparation and issuance of inspection certification reports) falls within the scope of the member's official duties, that work is unprotected public employee speech. Therefore, because the Committee members' work is unprotected by the First Amendment on an individual basis, their collective work on the Committee is likewise unprotected.

Accordingly, because the Committee members' association is pursuant to their official duties and not any private expressive activities, it is not protected by the First Amendment right of expressive association. The Committee members may be engaged as individuals in other activities that are expressive in nature. But the letters of appointment relate to the Committee members' service on an official committee, and such an activity is not protected by the right of expressive association. Therefore, the University's disclosure of the Committee members' letters of appointment pursuant to the PRA would not impermissibly burden any First Amendment right of expressive association. Because the district court made a legal error in concluding that, by serving on the Committee, the members were thereby engaged in that First Amendment protected activity, it abused its discretion.

{The Committee members argue that the First Amendment doctrines governing public employee speech do not apply "to teaching and academic writing that are performed pursuant to the official duties of a teacher and professor," Demers v. Austin (9th Cir. 2014), and therefore their work for a university is entitled to First Amendment protection. We reject this argument. Demers is inapplicable here because, in performing the official work of the Committee, the members are not thereby engaged in "teaching and academic writing."}

{Because we conclude that the members' association is not protected by the First Amendment right to expressive association, we do not address PETA's arguments as to whether there is a reasonable probability that the Committee members will be subject to constitutionally significant threats or harassment if their identities become known.}

Judge Fitzwater concurred:

The panel opinion does not address PETA's arguments about whether there is a reasonable probability that Committee members will be subject to constitutionally significant threats or harassment if their identities become known, because the opinion correctly concludes that the members' association is not protected by the First Amendment right to expressive association. But as the panel opinion also recognizes, except for the Committee chair and the lead veterinarian, who have made their identities known, all other Committee members "prefer to remain anonymous because of concerns about their personal safety and the safety of their families and pets if their names are released."

When it comes to organizations like PETA, these concerns may be well-founded. See, e.g., Richard L. Cupp, Jr., Considering the Private Animal and Damages, 98 Wash. U. L. Rev. 1313, 1340 (2021) (PETA "is open about using 'controversial tactics' to gain media attention"). Nothing in the panel opinion, however, holds that the State of Washington is obligated through its Public Records Act to require disclosures of personal information that may subject Committee members and their families and pets to threats to their personal safety. As the panel opinion notes, the Act's disclosure requirements are already subject to a wide range of statutory exemptions. The State of Washington retains the authority to adopt other exemptions aimed at curbing required disclosures of personal information that could place at risk members of committees such as this one, or their families or property. Nothing in the panel opinion holds to the contrary.

Congratulations to Peter D. Hawkes (Angeli Law Group LLC), who represented PETA.

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"I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won't know what hit you if you go forward with these awful decisions."

That same day, Chief Justice Roberts released a forceful response to Schumer's remarks:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that "You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions." Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

And in 2018, after President Trump tweeted about "Obama judges," Chief Justice Roberts released another statement:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,"

Yesterday, Senator Ron Wyden unleashed a vituperative attack on Judge Kacsmaryk of the Northern District of Texas. Wyden echoed many of the barbs that have been repeated, over and over again, on Slate, Vox, and elsewhere.  Here are some of his remarks:

Legal logic be damned, the plaintiffs know that Judge Kacsmaryk won't let pesky obstacles like standing or precedent get in the way of the agenda they share.

That's because Donald Trump and conservative activists planted him on the bench in that Amarillo courtroom. They know he has spent his entire career fighting shoulder to shoulder with them against LGBTQ equality, abortion, and contraception.

He is there for the purpose of what I'll call "courtwashing."

In the courtwashing scheme, it's his role to give the appearance of judicial legitimacy to the outcomes that right-wing activists know they're getting as soon as their cases show up on his docket.

In the few years that Judge Kacsmaryk has been on the federal district court, he has earned the title of the most lawless judge in the country. It's tough to earn that kind of infamy in such a short time, but his rulings have justified it. . . .

The awful reality is, from the moment this case landed in front of Judge Kacsmaryk, it's been a rigged game all along. It's illegitimate. The case is an affront to the Constitution and to the rule of law in the United States of America.

So here's what must happen if and when Judge Kacsmaryk issues his nationwide injunction halting access to mifepristone.

President Biden and the FDA must ignore it.

Wyden's remarks make Schumer's seem tame. When will Chief Justice Roberts release a statement? Certainly Chief Justice Marshall can be cited here.

The post Will Chief Justice Roberts Respond To Senator Wyden's Attack On Judge Kacsmaryk? appeared first on Reason.com.

Cleveland-area friends, won't you join us tomorrow night—Sat. Feb. 18—at the Grog Shop for a night of comedy and fulminating against qualified immunity? Click here to RSVP.

• UMass Dartmouth law professor brings a First Amendment suit challenging the designation of UMass Faculty Federation, Local 1895 as the exclusive collective bargaining representative for his designated bargaining unit. He doesn't want them speaking on his behalf. First Circuit: Well, you're not required to pay union dues and nobody is prohibiting you from speaking, so we're going to join the eight circuits—including our own—that have already rejected this argument.
• Allegation: U.S. Secret Service agent swears out criminal complaint accusing protestor at 2016 Democratic National Convention in Philadelphia of breaching a restricted area. Yikes! The agent wasn't there and didn't review any video, which shows that police pulled the protestor into the restricted area. Agent: You can't sue a federal officer for violating the Constitution. Third Circuit: That may be, but (over a dissent) it's too soon to say. Interlocutory review is a qualified immunity thing not a Bivens thing.
• Circuit Split Alert! The Fourth Circuit joins with the First and Eleventh Circuits, holding that Americans with Disabilities Act "testers"—who search for ADA violations and file cases about them—have standing to sue hotels that fail to provide adequate information about accessibility features through booking websites like Expedia or Orbitz. The Second, Fifth, and Tenth Circuits have rejected this argument, finding no standing where plaintiffs—including this same plaintiff—did not allege or prove an intention to actually book rooms at the defendants' hotels.
• Allegation: Louisiana officials kept inmate in prison for over two years after he should have been released. Fifth Circuit: It's clearly established and "should go without saying" that holding people past their release date violates the Constitution. But this plaintiff did not show that it was "objectively unreasonable" for officials to violate clearly established law. Qualified immunity.
• Louisiana man spends 30 years in prison for a murder he did not commit. After being freed in 2014, he—and, following his death, his estate—sues for malicious prosecution. The district court dismisses because there is no such thing as a malicious prosecution claim in the Fifth Circuit. But wait! SCOTUS has since ruled there is indeed such a thing. Fifth Circuit: Nevertheless, there's no need to remand for another look. And maybe don't lose too much sleep over this one, the court suggests: Though wrongly convicted as the triggerman, he arguably could have been convicted of second degree felony murder based on his extensive involvement in the robbery that led to the murder, in which case, he'd never have been freed.
• Driver near Youngstown, Ohio, is stopped, and the $774k in his trunk is seized. Forfeiture case ensues. Man: The money's mine. Gov't: Would you kindly answer some discovery requests? Man: I would not. District court: The man hasn't sufficiently established the money's his, so he lacks Article III standing to contest the forfeiture. Sixth Circuit (unpublished): Well, he did swear under oath that he was the money's owner, which seems like it should be enough for standing. Dissent: The guy violated pretty much every discovery rule under the sun.
• This Lexington, Ky. comedy of errors involves a garden shed aflame; a fire investigator's request to access a neighbor's surveillance footage; the neighbor's refusal; a sketchy warrant affidavit for the footage; issuance of the warrant; police executing the warrant on the neighbor's house; the neighbor's mom burrowing through a ceiling to (the gov't claims) extract 5 kilos of cocaine; a toilet clogged with a mysterious white substance; and two-thirds of a Sixth Circuit panel holding that all of it violated the Fourth Amendment because there had been no probable cause to suspect arson in the first place. (NB to snoots: Forgive the rampant fused participles above. Some of your correspondents just love to watch the world burn.)
• There is no Snapchat exception to the warrant requirement, says the Seventh Circuit, in holding that Springfield, Ill. police violated the Fourth Amendment when they spotted a Snapchat video of a local felon in possession of a gun, rolled over to his house, walked onto his porch, found the firearm, and arrested him. Snapchattery may be a modern innovation, but respect for the sanctity of the curtilage is embedded in our nation's history.
• In 2018, Milwaukee-area officials removed a dam from the Milwaukee River, causing the water level upstream to subside and leaving a homeowner there with a swampy patch of land where the river used to run. An unconstitutional uncompensated taking of his property? The Seventh Circuit says no.
• Allegation: Stockton, Calif. police take man at Cinco de Mayo festival to ground without warning. With his arms pinned under his body, he's unable to put his hands behind his back. An officer repeatedly strikes his leg with a baton, breaking it. He's charged with resisting arrest, but the case is dropped after he pleads no contest and stays out of trouble. District court: Which is the functional equivalent of a conviction, so he's barred from suing for false arrest and excessive force. Ninth Circuit: Reversed. Pre-trial diversion agreements are not convictions. Heck does not bar. [IJ filed an amicus brief urging this course of action.]
• Allegation: Unruly inmate at Oklahoma County, Okla. jail is escorted to a cell, where a 320 lb. officer kneels on his back to uncuff him. Afterwards, he lies unmoving for nearly six hours before a nurse finds him unresponsive. Jesus wept! He's dead of a severed spinal cord. Officers: Okay, but what if that's not what happened? Tenth Circuit (unpublished): Then we can't hear your appeal. Fact disputes belong in front of a jury. No qualified immunity.
• And in en banc news, the Second Circuit will reconsider its decision that former high school athletes do not have standing to challenge the Connecticut Interscholastic Athletic Conference's policy of allowing transgender students to compete in women's track and field.
• And in more en banc news, the Second Circuit will not reconsider its decision that the Federal Arbitration Act covers a class of commercial drivers despite a recent Supreme Court decision seemingly to the contrary.

State constitutions are beautiful and special, and it's a darn shame when courts don't realize that. So it's with a heavy heart that we tell you this week the Minnesota Supreme Court scorned the provisions of the state constitution that guarantee equality of treatment. Instead, the court continued to apply wholesale the language (and lax standards) of the federal equal protection clause—words that do not appear in the Minnesota Constitution. Click here to read IJ's brief (in support of neither party) urging the court to attend to the history of the actual language in the constitution, how it was interpreted in the early years, and how things went off track. Or click here to see the ruling, which rejects an ACLU challenge to state voting laws involving felons who are out of prison but haven't served their full sentences.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

Plaintiff is a senior at Haverford College … and has been a member of a varsity sports team since his first semester as a freshman. Plaintiff became a captain of his team during his junior year. The parties agree that Plaintiff had no issues with his coaches and teammates during his first two and a half years on the team.

During the spring semester in 2022, a rumor began to circulate that Plaintiff had sexually assaulted an unnamed female student on the Haverford campus. According to Plaintiff, the rumor contained no specific details about the alleged assault, and Plaintiff has consistently denied any physical or sexual contact with the student identified as the victim of an assault. Two of John's co-captains reported the allegation to their coach in early February of 2022. The coach advised John that he was required to report allegations of sexual misconduct due to his position and notified Haverford's Title IX Office of the allegation. The coach suggested to John that he step away from the team until it was resolved, and that same day Plaintiff notified his teammates via email of his intention to briefly step away from the team.

The Title IX Office reviewed the information provided by John's coach and considered whether it would open a formal investigation into the allegation. At some point, the Office also communicated with the alleged victim, who stated that she did not intend to file any formal complaint against Plaintiff. After conducting this preliminary inquiry, the Title IX Office did not open a formal investigation and communicated to Plaintiff that he could continue his life at Haverford as normal.

Shortly thereafter, Plaintiff met with his coach, informed him of the Title IX Office's conclusion, and asked to rejoin the team. The coach, however, advised John that he was no longer welcome on the team, as the other captains did not want him to rejoin. At a follow-up meeting on March 15, the coach allegedly advised John that the other captains' position was driven by their belief in the veracity of the sexual assault allegation. One week later, on March 22, Plaintiff had another meeting with his coach, the Title IX Coordinator, the Athletic Director, and the co-captains. At this meeting, his co-captains emphasized that their opposition to Plaintiff returning to the team was driven by (1) the sexual assault allegation and (2) unspecified misogynist behavior by Plaintiff. The coach, relying on these statements by the co-captains, stated at the meeting that Plaintiff would not be allowed to rejoin the team.

Since the March 22 meeting, Plaintiff—along with his parents, grandmother, and counsel—has engaged in numerous communications and meetings with staff and administrators at Haverford to seek reinstatement to the team. In early May, Plaintiff met with the Dean of Haverford and the Athletic Director to request that he be permitted to rejoin the team. But the Dean stood by the coach's actions, emphasizing that participation in athletics was a privilege for students, not a right, and stating that John's return would lead other team members and the coach to quit. In August and September, Plaintiff's parents and counsel reached out to Haverford officials in the hope of resolving the issue prior to the fall semester. Plaintiff further proposed a plan through which Haverford would assign a senior administrator who would ensure that the coach allowed Plaintiff to return to the team.

In response, the administration rejected Plaintiff's proposed plan and instead proposed a potential path to reinstatement that involved Plaintiff meeting with his coach and a co-captain to convince them to allow Plaintiff to rejoin the team. Plaintiff subsequently met with his coach on October 24, 2022. During the meeting, the coach acknowledged that the allegation of sexual assault was not a proper basis to keep Plaintiff off the team, but that his teammates also raised other concerns with Plaintiff returning to the team that were unrelated to the assault allegation. The coach would not elaborate and insisted that Plaintiff discuss these concerns directly with his teammates. Plaintiff was unable to meet with two co-captains of the team until several weeks later on December 2, after the winter season had commenced. During the meeting, one co-captain—Captain A—was steadfast in his belief that Plaintiff should not return to the team. When questioned on why, Captain A noted that he had general concerns with Plaintiff's treatment of women but did not identify any specific past event or occurrence demonstrating this behavior….

The court concluded that the refusal to reinstate Doe on the team likely wasn't a breach of contract:

[T]he Coach does not currently invoke the assault accusation as the basis for excluding Doe from the ongoing season. Rather, the Coach invokes the team's negative reaction to the prospect of Doe's return. Indeed, in his affidavit, the Coach represents that his decision not to reinstate Doe to the team was aimed at preventing disruption. Specifically, the Coach avers that:

A significant number of Doe's former teammates told me that they were deeply uncomfortable with Doe rejoining the team. Many said they would quit if Doe were re-instated. I decided that Doe's participation on the team would negatively impact the team atmosphere and severely hinder or eliminate the team's ability to perform to their fullest potential …

Based on my discussion with Doe, my discussions with the co-captains and team members, and my own personal observations regarding the team's dynamics, I determined that it was in the best interest of all involved to decline Doe's request to rejoin the team …

My decision was not meant to be punitive to Doe, but instead was a necessary operational decision to pursue optimal team performance. My decision was not based on any assessment of whether Doe had, or had not, engaged in conduct which, if true, would have violated Haverford's Sexual Misconduct Policy. It was based entirely upon my deep and sincere concern that allowing Doe to rejoin the team would negatively impact team performance and become a untenable distraction.

… Moreover, I am persuaded by Haverford's argument that the Coach's actions throughout the process constitute a reasonable exercise of the broad discretion that team sports vest in coaches to manage their teams. Coaches must generally consider a variety of factors—both objective and subjective—in managing a team, and these factors include concerns about distractions, team cohesion, and morale….

Many of the arguments Doe raises are equitable in nature, condemning "mob justice" and stressing how unfair it is that he lacks a process through which to defend his reputation. But the claim on which Doe seeks injunctive relief sounds in law, not equity, and my role is not to decide what comports with the traditional values of Haverford College or what is the appropriate course for a coach to follow when confronted with a mismatch between one of his athletes and his team. The specific legal question before me is whether Doe has established a reasonable chance of success on his breach of contract claim, and I conclude that he has not….

And the court also held that Doe hadn't sufficiently shown irreparable harm:

Courts are split on whether denial of athletic opportunity constitutes irreparable harm. If I were persuaded that Doe's absence from the team directly resulted from Haverford's failure to follow its Title IX procedures, a finding of irreparable procedural harm would readily follow. But the record here does not strongly support such a conclusion. Doe's college career is quickly approaching an end, and in that respect, it can be said that the opportunity to compete for Haverford will be irretrievably lost. But Doe points to no future consequences flowing from his ineligibility, such as loss of future opportunities as an athlete {[s]ome courts have even held that this type of loss is too speculative to constitute irreparable harm}, and even at this stage he could compete as an unaffiliated athlete in certain competitions, as his Coach pointed out in an email.

Ultimately, the harm Doe most seeks to address is reputational, and it is unclear that an injunction would provide such relief…. It is difficult to see how an order of this Court inserting itself into the affairs of a college athletic team will provide such relief, as teammates can still express their views in a variety of ways well beyond the control of the Court.

Congratulations to Joshua Richards and Levi Schy, who represent Haverford.

The post Private College Coaches' Flexibility to Eject Team Members Based on Condemnation by Teammates appeared first on Reason.com.

I have already written two opinions describing this case's facts. Here is the gist: Valentin and Matos played Spanish music at home. Their neighbors, Michael and Patricia Wysock, disliked hearing it, so they complained to the police. After the police visited Valentin and Matos's home fourteen times, officer Christopher Hewlett arrested Valentin for violating a county noise ordinance. Ultimately, the county dismissed the charge. Upset, Valentin and Matos then sued the Wysocks, Hewlett, and the county. I dismissed the claims against the county. There are still a few claims left against the Wysocks and Hewlett….

First things first: the claims against the Wysocks are based on state law. Though the Wysocks happen to be police officers, the complaint "does not allege that they were acting under the color of state law, as [42 U.S.C.] § 1983 requires." Valentin and Matos do not dispute this. See D.I. 54; D.I. 60, at 2. So Delaware law governs.

And Delaware does not recognize either a statutory or common-law cause of action for harassment. In Delaware, statutory harassment is a crime. 11 Del. C. § 1311. As the Delaware Supreme Court has explained, criminal statutes like § 1311 "impose general prohibitions," suggesting that they do not "create rights for a particular group of citizens, but … protect the public at large." Given § 1311's "penal focus," it "cannot be stretched to include civil redress for personal damages." So Valentin and Matos cannot sue the Wysocks for harassment under this statute.

Nor does Delaware common law create a harassment cause of action. Valentin and Matos cannot cite any Delaware case sustaining such a cause of action….

Sensing this, Valentin and Matos now ask me to let them change their claim from harassment to intentional infliction of emotional distress. I decline their invitation. Justice does not require allowing this amendment. Valentin and Matos make no effort to explain how the pleaded facts would support an intentional-infliction claim. And letting them change theories now, after discovery has closed, would prejudice the Wysocks. Plus, Valentin and Matos have "had multiple opportunities to state a claim but ha[ve] failed to do so." Neither their initial complaint nor their first amended complaint mentioned intentional infliction of emotional distress….

Valentin alone brings a malicious-prosecution claim. Unlike harassment, Delaware recognizes a cause of action for malicious prosecution. To bring a malicious-prosecution suit, Valentin must plead that a criminal proceeding (1) was brought against her (2) "by, or at the instance of the [Wysocks]," (3) was "terminated in [her] favor," (4) was brought with malice and (5) without probable cause, and (6) resulted in "injury or damage." The Wysocks rightly concede the first and third elements: the police "instituted a charge against Valentin for violating the [n]oise [o]rdinance, and that charge was ultimately dismissed." And I already decided that Valentin adequately alleged that she was arrested without probable cause. That leaves instigation, malice, and damages….

[Under Delaware law,] "The cause of action available to the arrested person against the [private-citizen] instigator is a suit for malicious prosecution." … Nor does reporting crime to the police immunize one from suit…. [Valentin] plausibly pleads that the Wysocks "initiated" proceedings because "[i]t was their recitation of the incident [that] caused [her] to be arrested." So her allegations that the Wysocks instigated the prosecution suffice.

But Valentin's malice and damages allegations do not. She must plead "actual malice, in the sense of an improper motive or wanton disregard of the [prosecuted party's] rights." She claims that the Wysocks' "improper motive" was "racial and linguistic animus." But she gives scarce other facts suggesting that the Wysocks acted with such animus. All she says is that the Wysocks "derid[ed] [her] Spanish-language music." These are mostly "naked assertions devoid of further factual enhancement."

Indeed, Valentin's main support for asserting animus is that she and Matos "are Hispanic and listen to Spanish-language music." But those facts are still consistent with the Wysocks' contending that the music violated the noise ordinance. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Without more, Valentin's malice allegations fall on the wrong side of the line…. "[A] bare allegation that defendants[ ] instituted proceedings solely to intimidate and harass is insufficient to plead malice." …

Similar problems plague her damages allegations. She says that the Wysocks' malicious prosecution caused her to "suffer damages, in the form of both economic and non-economic damages including pain and suffering, embarrassment, loss of reputation, loss of enjoyment of the value of [her] home, and other such harms as will be borne out by the evidence." She tries to beef them up in her response brief, explaining how she was damaged. But because those explanations are missing from her complaint, I cannot consider them….

Yet these deficiencies are fixable. So I dismiss Valentin's malicious-prosecution claim without prejudice. She has one last chance to amend this claim….

Finally, both Valentin and Matos claim that the Wysocks defamed them…. But Valentin and Matos do not "identify the exact comments or specific publication attributable" to the Wysocks. They allege only that the Wysocks "made statements that falsely imputed a crime to" them, namely the noise-ordinance violation. Without more specific allegations, I "cannot evaluate" the defamation claim. So I will dismiss the claim without prejudice.

One last note: the Wysocks suggest that "statements made to the police to instigate criminal complaints are absolutely privileged." But the Delaware Supreme Court has clarified that such statements are only conditionally privileged. Conditional privilege is an affirmative defense, which is typically inappropriate to resolve on a motion to dismiss. And the privilege's abuse [which can rebut a claim of conditional privilege -EV] is "ordinarily a question of fact." So now is not the right time to consider the privilege….

Congratulations to Shae Lyn Chasanov (Tybout Redfearn & Pell) and Nicholas Jaison Brannick (New Castle County Law Department), who represented the defendants.

The post Plaintiffs "Played Spanish Music at Home"; Neighbors "Complained to the Police"; Tort Litigation Ensued appeared first on Reason.com.

Paule McKenna …, the executor of the estate of Christopher Jones, sued defendants and respondents Sony Pictures Entertainment, Inc., Boss Film Productions, Inc., and Visiona Romantica, Inc. … for allegedly misusing Jones's name and likeness (posthumously) in the film Once Upon a Time … in Hollywood….

Christopher Jones was a popular actor in the 1960s. He starred in the television series The Legend of Jesse James and a number of movies including 3 in the Attic and Wild in the Streets. Jones quit Hollywood in 1969. He died in 2014.

Once Upon a Time … in Hollywood (the film), is a film written and directed by Quentin Tarantino. It was produced by Boss Film Productions and released by Sony Pictures Entertainment in 2019. The film stars Leonardo DiCaprio as fictional actor Rick Dalton, Brad Pitt as his fictional stunt-double Cliff Booth, and Margot Robbie as real-life actor Sharon Tate. It depicts a few days in the lives of the three main characters in February and August 1969, and imagines (or reimagines, in Tate's case), how their lives intersect with the Charles Manson family.

A variety of products with recognizable name brands appear throughout the course of the film. For example, there is a scene in which Pitt's character Booth cooks a box of Kraft macaroni and cheese. A box of Wheaties cereal is on his counter while he does so, and a copy of TV Guide is seen elsewhere in his home. The same scene includes brief glimpses of Booth's television, which at one point plays an advertisement for Jones's movie 3 in the Attic and identifies Jones as one of its stars. In various other scenes, Booth wears a t-shirt with a logo for Champion spark plugs on it. Characters also at one point drive down Hollywood Boulevard and pass the Pantages Theatre, which was displaying a marquee for 3 in the Attic featuring Jones's name.

The court concluded that the complaint was properly dismissed under California's anti-SLAPP statute:

[The anti-SLAPP statute applies because t]he creation of a movie is an exercise of free speech … [as to] issues of public interest. The film concerns the culture of the late 1960s in Hollywood and the Manson family murder of Tate. These are matters of public interest about which discussions are still ongoing. The uses of Jones's name, the portrayal of Booth and/or Dalton in proximity to branded products, and the portrayal of Booth wearing shirts with brand logos on them are details that add to the depiction of the culture in Hollywood in the late 1960s. The public interest in these topics is demonstrated by the numerous articles and reviews discussing the film that defendants submitted in support of the motion, some of which specifically reference Tarantino's inclusion of era-appropriate products, as well as the many-months-long run the film had in theaters (late July to early October 2019).

Plaintiff advances a number of arguments to the contrary, most of which relate back to her contention that the activity on which her complaint is based is simply "false brand endorsement" or, in other words, the recreation of Jones's likeness and portrayal of that likeness in connection with commercial brands, without consent or credit. The film, she claims, is incidental to this false endorsement for profit issue and she asserts there is no public interest in the brand endorsement or in her private dispute with defendants over their alleged use of Jones's likeness. The problem with plaintiff's argument, however, is that the broader creative acts of including the aforementioned aspects in the film and the alleged use of Jones's likeness are inextricably linked. For example, in the context of the film, any alleged commercial reason for dressing Booth in a t-shirt with the Champion logo on it cannot be isolated from the creative impetus for the same action. Furthermore, defendants submitted a declaration representing the brands depicted (other than Hennessey) were included for artistic reasons and were used to "capture the look and feel of the time period," and to "accurately portray the late 60s."

Plaintiff also relies upon a handful of cases for the proposition that advertisements for an artistic work are not necessarily noncommercial speech. To the extent plaintiff relies on these cases to argue the advertisements for the film should not be eligible for anti-SLAPP protection, the authority is inapposite. Unlike the advertisements at issue in the cases plaintiff cites, the advertisements for the film are not alleged to include any false statements and are merely adjuncts of the film. To the extent plaintiff contends these cases transform the portions of the film with product placement into commercial speech, that is also incorrect. Both of plaintiff's cases addressed separate advertisements for creative works, not allegedly integrated advertising within the works themselves….

Thus, to resist the anti-SLAPP motion, plaintiff had to show a probability of prevailing on the claim, and she couldn't:

Civil Code section 3344.1, subdivision (a)(1) provides in pertinent part: "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof."

Subdivision (a)(2), however, exempts from subdivision (a)(1) a "play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works … if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work." But there is also an exception to the exemption. Under Civil Code section 3344.1, subdivision (a)(3), "If a work that is protected under paragraph (2) includes within it a use in connection with a product, article of merchandise, good, or service, this use shall not be exempt under this subdivision, notwithstanding the unprotected use's inclusion in a work otherwise exempt under this subdivision, if the claimant proves that this use is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good, or service by the deceased personality without prior consent from the person or persons specified in subdivision (c)."

Subdivision (k) of the statute provides that "[t]he use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing the use is commercially sponsored or contains paid advertising. Rather, it shall be a question of fact whether or not the use of the deceased personality's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a)."

The film unquestionably falls into the exemption under Civil Code section 3344.1 subdivision (a)(2), as it is an audiovisual work of fictional entertainment. In order to demonstrate minimal merit under subdivision (a)(3), then, plaintiff must have made a prima facie case that the film "includes within it a use [of a deceased personality's name, voice, signature, photograph, or likeness] … [that] is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good or services …."

There is no contention that Jones's voice, signature, or photograph was used in the film. Jones's name is mentioned twice during advertisements for his movie 3 in the Attic (played within the film), and his name appears fleetingly as characters drive past a marquee promoting the same movie. Plaintiff has not provided any evidence demonstrating these brief references to Jones, which narratively serve to identify Jones as a contemporary of Dalton and Booth, are "so directly connected" to any products, merchandise, good, or service that they constitute advertisements. The same is true of the appearance of Jones's name in promotional trailers for the film and the fake magazine promoting the film.

The true heart of plaintiff's claim is that Booth, and to a lesser extent Dalton, were based on and styled after Jones. Plaintiff identifies aspects of both characters that she contends make up a whole constituting a likeness of Jones. Some of these aspects are physical—like Booth's hairstyle and aviator sunglasses—while others are biographical—like the scene in which Dalton is comforted by a child. While we are doubtful that plaintiff has demonstrated a probability of success in alleging Jones's likeness was used in the film, we need not reach that issue to decide plaintiff has not demonstrated a probability of prevailing on her Civil Code section 3344.1 cause of action.

The film depicts Booth and Dalton, though primarily Booth, using a slew of household products and otherwise appearing in scenes that feature brand logos. It also depicts Booth wearing one or more t-shirts with a brand logo on it. In response to plaintiff's allegation, defendants submitted the declaration of producer McIntosh that asserts the only product placement in the film was for Hennessy cognac, a product not used by either Booth or Dalton and thus not associated with Jones's alleged likeness. The declaration further asserts the other products depicted in the film were used solely for creative, not financial, reasons and the filmmakers were not paid to include them. As the film was, in fact, not compensated for the inclusion of the products and was not advertising them through any sort of product placement, Booth and Dalton's proximity to the products was not so directly connected to any of the products that their presence constituted advertisement or sale….

The court likewise rejected plaintiff's federal trademark and false endorsement claim, as well as some other state law claims. Seems quite right to me. Congratulations to Louis P. Petrich and Elizabeth L. Schilken (Ballard Spahr), who represent the defendants.

The post Once Upon a Time in the California Court of Appeal appeared first on Reason.com.

allow eligible incarcerated individuals to gain not less than 60 and not more than 365 day reduction in the length of their committed sentence … on the condition that the incarcerated individual has donated bone marrow or organ(s).

I actually support payment for organs, with proper safeguards (see my Medical Self-Defense article), but conditioning a reduction in a prison sentence on providing organs strikes me as going too far. (One might distinguish provision of organs from provision of bone marrow, since such provision apparently carries very modest risks to the provider, and since bone marrow regenerates quickly, though I'd still oppose even just the bone marrow feature.)

The post Massachusetts Lawmakers Propose Reducing Sentences for Inmates Who Provide Bone Marrow or Organs appeared first on Reason.com.

Semifinal Match #1

Team #12552 v. Team #12041

Semifinal Match #2

Team #12548 v. Team #12045

Semifinal Match #3

Team #12056 v. Team #12576

Semifinal Match #4

Team #12044 v. Team #12050

Semifinal Match #5

Team #11965 v. Team #12574

Semifinal Match #6

Team #11969 v. Team #12048

Semifinal Match #7

Team #12052 v. Team #12577

Semifinal Match #8

Team #11696 v. Team #11811

Semifinal Match #9

Team #12556 v. Team #11770

Semifinal Match #10

Team #12068 v. Team #11729

Semifinal Match #11

Team #12063 v. Team #11695

Semifinal Match #12

Team #11808 v. Team #12575

Semifinal Match #13

Team #11762 v. Team #12823

The post Harlan Institute-Ashbrook Virtual Supreme Court Semifinalists appeared first on Reason.com.

The post Today in Supreme Court History: February 17, 1801 appeared first on Reason.com.

WHEREAS in 1957's Sweezy v. New Hampshire, the Supreme Court of the United States observed that "[t]he essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die."; and

WHEREAS ten years later in Keyishian v. Board of Regents, the Supreme Court further declared that academic freedom "is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."; and

WHEREAS in Healy v. James, the Supreme Court stated that "the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, 'the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'"; and

WHEREAS in West Virginia State Board of Education v. Barnette, the Supreme Court held that the First Amendment prohibits the government from compelling an individual to engage in speech, proclaiming that "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."; and

WHEREAS many colleges and universities require or invite current and/or prospective faculty to demonstrate their commitment to diversity, equity, and inclusion (DEI), often through a written statement that factors into hiring, reappointment, evaluation, promotion, or tenure decisions; and

WHEREAS vague or ideologically motivated DEI statement policies can too easily function as litmus tests for adherence to prevailing ideological views on DEI, penalize faculty or applicants for holding dissenting opinions on matters of public concern, and, as the Supreme Court warned against in Keyishian, "cast a pall of orthodoxy" over our public college and university campuses; and

WHEREAS a survey by the American Association of University Professors of hundreds of colleges and universities found that more than one-fifth of higher education institutions include DEI criteria in tenure standards, and of the institutions that do not include tenure standards, nearly half indicated they are considering adding such criteria in the future; and

WHEREAS a survey by the American Enterprise Institute of academic job postings found that nearly 20 percent required DEI statements; and

WHEREAS according to data presented at an academic conference in 2022 at the University of Southern California, a majority of tenured/tenure-track faculty members surveyed in a study indicated that they disfavored a candidate for an academic position when the applicant's DEI statement didn't reference race/ethnicity and gender diversity, reflecting the fact that DEI statements are used to favor candidates who endorse prevailing campus ideological orthodoxies; and

WHEREAS according to a forthcoming FIRE survey, faculty are split evenly on whether DEI statements are a justifiable requirement for a university job (50%) or are an ideological litmus test that violates academic freedom (50%), and three-in-four liberal faculty support mandatory diversity statements while 90% of conservative faculty and 56% of moderate faculty see them as political litmus tests; and

WHEREAS the First Amendment to the United States Constitution prohibits public universities from compelling faculty to assent to specific ideological views;

Now, therefore, the State of ____ enacts the following:

A. No public institution of higher education shall condition admission or benefits to an applicant for admission, or hiring, reappointment, or promotion to a faculty member, on the applicant's or faculty member's pledging allegiance to or making a statement of personal support for or opposition to any political ideology or movement, including a pledge or statement regarding diversity, equity, inclusion, patriotism, or related topics, nor shall any institution request or require any such pledge or statement from an applicant or faculty member.

B. If a public institution of higher education receives a pledge or statement describing a commitment to any particular political ideology or movement, including a pledge or statement regarding diversity, equity, inclusion, patriotism, or related topics, it may not grant or deny admission or benefits to a student, or hiring, reappointment, or promotion to a faculty member, on the basis of the viewpoints expressed in the pledge or statement.

C. Nothing in this Act prohibits an institution from requiring a student, professor, or employee to comply with federal or state law, including anti-discrimination laws, or from taking action against a student, professor, or employee for violations of federal or state law.

D. Nothing in this Act shall be construed to limit or restrict the academic freedom of faculty or to prevent faculty members from teaching, researching, or writing publications about diversity, equity, inclusion, patriotism, or other topics.

E. Nothing in this Act prohibits an institution from considering, in good faith, a candidate's scholarship, teaching, or subject-matter expertise in their given academic field.

F. Each public institution of higher education in the state shall post and make publicly available all training materials used for students, faculty, and staff, on all matters of nondiscrimination, diversity, equity, inclusion, race, ethnicity, sex, or bias, and all of its policies and guidance on these issues, on its website.

G. A person whose rights were violated through a violation of this act may bring an action against a public institution of higher education, and its agents acting within their official capacities, in a state or federal court of competent jurisdiction to receive declaratory relief or enjoin a violation of this Act. If a court finds a violation of this act, the court shall provide a prevailing plaintiff appropriate equitable remedies, and award damages, reasonable court costs, and attorney's fees.

H. The Attorney General may file suit to enjoin a policy or practice prohibited by Section A or Section B.

I. If an institution, or any of its employees acting in their official capacities, are found by a court or the institution to have violated this Act, the institution may take disciplinary action against the responsible employees in accordance with the institution's policies and procedures.

J. In addition to any relief under Sections G and H, the [State Fiscal Officer] shall impose an administrative penalty of $100,000 against a State Education Institution for each violation of this Act. The penalty shall be deposited in the [State Treasury] and shall be allocated to each State Education Institution that is not currently in violation of this Act and has not violated this Act within the preceding two fiscal years.

[Alternatives:

[A.] In addition to any relief under Sections G and H, the [State Fiscal Officer] shall impose an administrative penalty of $30 per student enrolled at the institution on a full-time basis in the fiscal year preceding the violation, against a State Education Institution for each violation of this Act. The penalty shall be deposited in the [State Treasury] and shall be allocated to each State Education Institution that is not currently in violation of this Act and has not violated this Act within the preceding two fiscal years.

[B.] In addition to any relief under Sections G and H, the [State Fiscal Officer] shall impose an administrative penalty of the lessor of $300,000 or 1% of the State Education Institution's budget during the fiscal year preceding the violation, against a State Education Institution for each violation of this Act. The penalty shall be deposited in the [State Treasury] and shall be allocated to each State Education Institution that is not currently in violation of this Act and has not violated this Act within the preceding two fiscal years]

K. Any action brought pursuant to Section G must be brought within 1 year of the latest date the Act is alleged to have been violated.

L. If any provision of this chapter, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this chapter and the application of its provisions to any other person or circumstance shall not be affected thereby.

Disclosure: I was engaged by FIRE to consult briefly on one portion of this project. Note that this does not endorse laws that limit the teaching of certain materials in class ("Nothing in this Act shall be construed to limit or restrict the academic freedom of faculty or to prevent faculty members from teaching, researching, or writing publications about diversity, equity, inclusion, patriotism, or other topics"), and indeed FIRE has successfully challenged Florida's law restricting such teaching.

The post FIRE Proposes Model Intellectual Freedom Protection Act to Restrict Compulsory DEI Statements in Public Colleges appeared first on Reason.com.

… (a) In general.—Any person who, while a minor, was a victim of a violation of section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney's fees and other litigation costs reasonably incurred. The court may also award punitive damages and such other preliminary and equitable relief as the court determines to be appropriate.

(b) Statute of limitations.—There shall be no time limit for the filing of a complaint commencing an action under this section.

But the actual public law that enacted the statute also provides (as noted here),

SEC. 3. EFFECTIVE DATE; APPLICABILITY.

This Act and the amendments made by this Act shall—

(1) take effect on the date of enactment of this Act; and (2) apply to—

(A) any claim or action that, as of the date described in paragraph (1), would not have been barred under section 2255(b) of title 18, United States Code, as it read on the day before the date of enactment of this Act; and

(B) any claim or action arising after the date of enactment of this Act. Approved September 16, 2022.

In Wilson, Judge Piersol concluded that plaintiff's claim is barred by the public law, even if that bar is not reflected in the main text of the U.S. Code version:

As indicated in the citation, P.L. 117-176 is codified in the Statutes at Large at 136 Stat. 2108. Where there is an inconsistency between the text of the United States Code section and the Statutes at Large, the language of the latter controls. 1 U.S.C. § 204(a). See Stephan v. United States, 319 U.S. 423, 426 (1943) ("… the Code cannot prevail over the Statutes at Large when the two are inconsistent"). See also Jewish Center for Aged v. U.S. Dept. of Housing and Urban Development, 2007 WL 2121691, *4 (E.D. Mo. 2007); Peart v. Motor Vessel Bering Explorer, 373 F. Supp. 927,928 (D. Alaska 1974). In the present case, the language of the Statutes at Large controls.

On its face, Section 3 eliminates the statute of limitations for actions or claims arising after enactment of the statute. Cases arising before that time require further analysis, however. In accordance with § (2)(A), it is necessary to assess whether an older claim would have been barred by the applicable statute of limitations before September 16, 2022.

Prior to the version of 18 U.S.C. § 2255 now in effect [and starting in 2013], the statute provided a ten-year statute of limitations which began to run on the later of the plaintiff s discovery of the violation or discovery of the injury, or not later than ten years after the victim reached the age of eighteen…. [The] ten-year statute of limitations … would not have revived a claim such as Plaintiffs dating from more than three decades earlier….

In her complaint, Plaintiff asserts the alleged rapes occurred when she was 8 and 9 years old. Based on her statement that she was 12 when she ran away in 1982, the Court assumes a birthdate of sometime in 1970. It is possible she could have pursued a civil action when 18 U.S.C. § 2255 was amended in 1986 to authorize civil suits for certain sexual assaults. Apparently, Plaintiff did not do so. The September 16, 2022, amendment to 18 U.S.C. § 2255 that Plaintiff cites as eliminating the statute of limitations does so only for certain cases, and Plaintiffs is not in that category. Plaintiff's lawsuit is barred by the statute of limitations, 18 U.S.C. § 2255, and has not been revived by any of the ensuing amendments to the statute.

A reminder that, when you're looking at U.S. Code provisions, you should always check the notes that follow them (e.g., here)—though I expect many lawyers don't do that, and of course laypeople (such as the plaintiff here) are even more likely not to do it. Indeed, in principle one ought to always check the Public Law version as well as the U.S. Code version, though I expect even fewer lawyers reliably do that.

The post When Key Features of a Federal Law Don't Appear in the Main Text of the U.S. Code Entry appeared first on Reason.com.

It's now out, in the symposium on Non-Governmental Restrictions on Free Speech. The Introduction and the Conclusion:

About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Of course, that means about half don't. Which jurisdictions are correct? And, if private employers should generally be barred from firing, disciplining, or perhaps even declining to hire workers based on their speech, which sorts of speech should be protected? …

As I hope I've made clear, laws limiting private-employer-imposed speech restrictions might be a cure that's worse than the disease. They might unduly interfere with employers' associational rights (though not generally in an unconstitutional way). They might unfairly require employers to keep paying employees who are more trouble than they are worth. They might make it harder for employers to dismiss employees even for eminently legitimate reasons unrelated to the employee speech. And of course, they might increase the amount of offensive and harmful speech by making such speech less costly for the speakers (though the same can be said of free speech rights generally).

At the same time, private employer speech restrictions genuinely do threaten to undermine democratic self-government, the marketplace of ideas, self-expression, and the development of autonomous citizens, much like many governmental speech restrictions do.

To take just one example, consider abortion, which the Supreme Court has now returned to the political process. It's much harder to have meaningful democratic debate about this subject if people know that they can be fired for signing an initiative or referendum petition, or for contributing their money to a ballot-measure campaign, or for publicly endorsing a candidate—or, for that matter, just for expressing their views on the moral or practical impact of one or another position. And to the extent that religious association or expression on this subject is protected by Title VII and state religious discrimination bans, nonreligious expression ought to be as well.

This threat to public discussion and to self-expression also seems likely to be increasing, as people find it easier than ever before to demand, in an organized way, the firing of other people whose speech they condemn. And the existence of such laws may take some of this public pressure off employers, by giving employers an answer to such demands: "We don't like the employee's speech, either, but we can't fire him, because the law has tied our hands." I'm not sure what the right answer is to these questions; but I hope what I've said above can help us think through them.

The post My Article in the Journal of Free Speech Law, "Should the Law Limit Private-Employer-Imposed Speech Restrictions?" appeared first on Reason.com.

Philip Hamburger has an important analysis of the case at the Federalist: "How A Terrorist Victim Can Help The Supreme Court Address Section 230."   

In 2015, Nohemi Gonzalez—a 23-year-old American studying in Paris—was gunned down by Islamic State (ISIS) terrorists while dining at La Belle Equipe bistro. The U.S. Supreme Court will consider these wrenching facts of Gonzales v. Google on Feb. 21. Bound up with Nohemi's fate is the fate of Section 230.

That 1996 federal statute privileges Big Tech, excusing it from laws that constrain newspapers and other old-style communication. But does it relieve Big Tech from complying with all laws affecting communication? For example, those against aiding terrorism?

Nohemi's relatives and estate have sued Google—the owner of YouTube—for algorithmically encouraging followers of ISIS to view ISIS videos, in violation of the law against assisting terrorism. Google responds that Section 230 gives it sweeping immunity. It claims to be privileged for a host of abuses, including aiding terrorism and censoring Americans.

Big Tech thus takes a big interpretation of Section 230. The statute and the Constitution, however, suggest Big Tech has overplayed its hand.

The statutory problem is textual. According to Google and the rest of Big Tech, YouTube enjoys protection as a "publisher" under Section 230(c)(1) for its "editorial functions," whether in sharing and recommending videos or in blocking them. But that's not what the section says.

It says such companies shall not be "treated as the publisher" of information provided by others. So Google, comically, is seeking to be treated as a publisher under a section that says it shall not be treated as a publisher. Its argument proves too much.

The context confirms the narrowness of the text. The section was a response to cases such as Stratton Oakmont v. Prodigy, a defamation case in which Prodigy was held to be "a publisher rather than a distributor." A key element in defamation cases is to show that the defendant is the publisher of the defamation. Section 230(c)(1) protected against such suits by saying the companies should not be "treated as the publisher" of information supplied by others.

This leads to the sensible conclusion that YouTube and Google should not find any shelter in Section 230 for supporting terrorism. Being a publisher is not an element of a case for aiding terrorism, so Section 230(c)(1) gives them no cover.

The piece goes on to explain that "if the Supreme Court accepts Big Tech's big rewriting, the decision in Gonzales v. Google could privilege Big Tech both as to terrorism and censorship." Hamburger argues this misreads Section 230 and that the statute is unconstitutional:

Section 230 is especially unconstitutional because it privileges electronic communication over print and in-person communication, thereby subjecting these older modes to discriminatory restraints. This is speaker discrimination, which the Supreme Court rightly held unconstitutional in Citizens United v. FCC. 

The speaker discrimination, moreover, comes with viewpoint discrimination. Newspapers tend to have more local or regional perspectives than do Big Tech companies. So, by privileging electronic carriers, Section 230 favors their relatively national and international views and disadvantages the localized views of more traditional modes of communication.

Hamburger's concern is both terrorism and censorship:

The perverse beauty of Gonzales v. Google, from the Big Tech perspective, is that Big Tech could secure Supreme Court support for the big interpretation in a case that does not involve censorship. Terrorism could be a backdoor for censorship to sneak in unobserved.

Nohemi's murder was utterly unjustified. So is the big interpretation of Section 230. It contravenes the statute's text. It departs from the concerns underlying the act's adoption. It privileges big tech to aid terrorism and impose censorship. And the statute is unconstitutional.

The post Google, Section 230 & Nohemi Gonzalez appeared first on Reason.com.

Both federal and state law include protections, including some in the common law of tort, for speech that advances public policy or the interests of the public. Scores of statutes protect employee whistleblowing, or disclosing illegal or harmful conduct, or claiming other employee rights—for example, reporting discrimination or complaining of violations of the wage and hour laws…. [A]bout half the states protect some kinds of political speech or association by private sector employees (especially that which takes place off-duty and is closely connected to the electoral process). The number and breadth of those laws on their face is surprising; yet they haven't generated a lot of cases, in part because they are not well known and are more or less hemmed in by deference to employer interests and prerogatives.

Crucially, all of these private employee speech protections … take the form of exceptions to the background rule of employment-at-will—that is, the employer's prerogative, absent a contract providing for job security, to terminate employment at any time and for any reason or no reason at all, though not for a reason that is specifically prohibited by law. There are many such prohibited reasons, or wrongful discharge exceptions to employment-at-will, including the speech protections just reviewed as well as the large and still-growing body of employment discrimination law.

But the background rule of employment-at-will undercuts every one of those protections. For employees who suspect or believe that their discharge was in fact wrongful under the law of the land, they first have to identify the wrongful motive (which the employer usually strives to conceal) in order to figure out what claim to file in what forum. Then the burden is on the employee to navigate the obstacle course of adjudication or litigation, and to prove an unlawful motive on the part of the employer, who controls almost all of the relevant documents and employs most of the witnesses….

There are many gaps in the quasi-First Amendment of the private sector workplace; but filling those gaps would do much less to protect employees' freedom of speech than would joining the rest of world in protecting them against arbitrary, unjustified dismissal—that is, by supplying the necessary backstop of due process rights for any employee speech rights. Due process rights in the form of procedural and substantive protection against unjustified dismissal would cast the burden on the employer to show a legitimate and adequate business-related reason for dismissal. Speech that is legally protected (such as union organizing activity or off-duty political speech and associations) would not count as just cause, and the unjust-dismissal review process could provide an accessible forum for airing an employees' claim that the employer's actual reason or motive for dismissal was unlawful. Beyond that, however, requiring the employer to show good cause for dismissal provides a buffer of protection against discrimination or retaliation, and without the doctrinal difficulties of defining the exact boundaries of what is protected, or the often-fatal difficulties of proving employer motive….

The formal free speech rights that about half the states afford in some form … would be far more secure in a just-cause world, yet would still be subject to reasonable employer regulation. And employees in the other half of the states would gain a measure of indirect protection for their political speech and association—especially for their off-duty activity—as an incidental by-product of the employer's burden to prove a good and substantial reason for dismissal….

The post Prof. Cynthia Estlund (NYU) in the Journal of Free Speech Law on "Can Employees Have Free Speech Rights … appeared first on Reason.com.

Russian opposition leader Ilya Yashin was recently sentenced to 8.5 years in prison for using his YouTube channel to publicize evidence of the Russian military's atrocities in Ukraine. Time recently published a message Yashin wrote to world, from behind bars (English version here, Russian here). In it Yashin warns us against ascribing collective guilt for the war to Russians as a group. Doing so is morally wrong, and also likely to bolster Vladimir Putin's grip on power. Such imputations of collective guilt have become increasingly common, reflected most notably in widespread refusal to grant refuge to Russians fleeing Putin's regime, on the theory that they share responsibility for its actions.

We would do well to heed Yashin's warning against this way of thinking:

Soon, a year will have passed since the start of the war unleashed by the Kremlin against Ukraine. It has taken thousands of lives, destroyed entire cities, and turned millions of families into refugees. Vladimir Putin, the one responsible for this tragedy, has become a true symbol of evil, reviled around the world. But it also seems that, more and more often, the Russian people are treated as enemies. The main accusation against the Russians: You did not resist the aggressive policies of your government, and that makes you accomplices to war crimes.

My name is Ilya Yashin, a Russian opposition politician, whom the Kremlin has kept in prison since the middle of last summer. I've been sentenced to 8.5 years of incarceration, because I publicly spoke out against the war in Ukraine. But today I want to say a few words in defense of my nation.

First: We did resist. Since the start of the war and throughout 2022, the police in Russia arrested almost 20,000 opponents of the war. According to human rights groups, protests have taken place almost every day in different cities since February 24, 2022, and only 18 of those days have passed without arrests and detentions…..

Second: People are fleeing Putin. In the past year, some 1 to 1.5 million people have left Russia [the English version says 700,000, relying on an October 2022 article that, among other things, cannot take account of those who fled since then]. The majority of them have emigrated, not wanting to be involved in military aggression. I want to call attention to the fact that at least twice as many people have fled as have been drafted for military service. Yes, you can blame those who chose to escape instead of choosing the path of resistance, prison, and torture. But the fact is that hundreds of thousands of my countrymen left their homes behind, refusing to become murderers on the orders of the government.

Third: Those who remain in Russia are living as hostages. Many of them don't support the war, but remain silent, afraid of repression…..

I appeal to the international community to choose wisdom. Do not demean Russians, as that kind of rhetoric will only strengthen Putin's grip on power. By shifting the blame for war crimes from the Kremlin junta onto my fellow citizens, you are easing the Putin regime's moral and political burden…. I see that as a serious mistake….

I believe Russians might become allies of the free world in resisting tyranny. Extend a hand to my fellow countrymen.

[I have in some places revised Time's translation to better reflect the Russian original; I am a native speaker of Russian, and thus in a position to make such judgment calls].

As Yashin suggests, ascriptions of collective guilt are wrong in themselves—conflating the innocent with the guilty. In addition, they play into the hands of the regime's propaganda by lending credibility to its claims that the West is hostile to Russians, as such.

His argument can be extended in a few ways.

First, I wonder how many of those who fault Russians for not protesting enough, would themselves be willing to do so if they were in Russia right now, and speaking out meant risking a lengthy prison sentence, like the one Yashin got? We should be wary of imposing standards on others that we would not live up to ourselves, if we were in their place.

Second, as I have argued time and again from the beginning of the war, both moral and pragmatic considerations counsel in favor of opening our doors to Russians fleeing the regime, just as we—to a large extent—have done for Ukrainian refugees (I cannot easily be accused of neglecting the cause of the latter). The large-scale exodus Yashin refers to occurred despite the fact that the only refuges available to most of these people are poor and often unstable countries such as Kazakhstan and Turkey. Many more might come if able to go to richer and freer Western democracies. Thus, more would be freed from oppression, and the "brain drain" and loss of manpower imposed on Putin's regime would be larger. To the extent that theories of collective guilt are used to justify barring Russian migrants, they are having a deeply pernicious effect.

Finally, projecting a less negative attitude towards the Russian people is in the long-term interest of both Ukraine and the West. Military action may enable Ukraine to expel Russian troops from its territory and end the immediate threat of conquest. But the long-term threat posed by Russian will only dissipate if Putin's authoritarian nationalist regime is replaced by a much more liberal one that abjures oppression and conquest. Such an outcome is far from guaranteed. But, at the margin, it will be easier to achieve if Russians do not see the liberal democratic world as enemies who hate them indiscriminately. While helping Ukraine defeat Putin on the battlefield, we should also reach out to Russians who might eventually put an end to his regime at home.

None of this means Putin alone bears the sole blame for the war and its evils. Obviously, he has many collaborators, including some who are responsible for horrific atrocities. Those people deserve condemnation and—where possible—punishment. But we should distinguish between them and the population, at large. Indeed, punishment for war crimes is another goal that—most likely—can only be achieved through a liberalization of Russia. So long as the present regime remains in power, little can be done to bring to highest-level war criminals to justice.

I criticized theories of collective guilt in greater detail here, including addressing claims that ordinary citizens of unjust authoritarian regimes deserve blame if they approve of the government's policies.

It is worth noting that it is very difficult to tell what percentage of Russians actually support the government and its war, given that survey respondents have strong incentives to give pro-government answers for fear of punishment under the draconian censorship laws enacted last year, which make it a crime to even refer to the conflict as a "war" (as opposed to a "special military operation," the official Kremlin euphemism). But the combination of the mass exodus and the government's resort to draconian repression suggest that there is a lot more opposition than may be visible on the surface. If the overwhelming majority of Russians really did support Putin's war, the regime would have no need to engage in repression on this scale, nor would we see such massive emigration.

Yashin may be too optimistic about the extent of popular opposition to Putin. But Westerners who claim an overwhelming majority support the war are also likely in error.

NOTE: Despite having the same first name, Ilya Yashin is no relation of mine. The name is a common one.

The post The West Should Heed this Message from a Russian Prison appeared first on Reason.com.

Mindful that the trial judge is "best able to observe and assess the witnesses' demeanor and credibility" and sense the "forces, powers, and influences" that may not be apparent from merely reading the record on appeal, we conclude that there is sufficient evidence from which the trial court could exercise its discretion, and that the court's exercise of discretion in rendering the room-rental provision of the order was reasonable…

McKenney testified that she believed the issue of strangers staying in K.L.G.'s bedroom and sleeping in her bed when she was not there was important to the teenager, who had noticed that her things had been rifled through when she was gone. McKenney explained that the children's closets and cabinets had no locks and that she was concerned for the physical and emotional well-being of her children based on the risks associated with the ongoing COVID-19 pandemic and the possibility that strangers might leave cameras in the bedrooms or take things. There was considerable evidence about K.L.G.'s ongoing mental and emotional issues, for which she was currently undergoing partial hospitalization and about which the parties did not always agree on the best course of treatment.

Gardner confirmed that he had rented out the children's rooms for nearly 100 days in a single year—the same year that encompassed K.L.G.'s suicide attempt and many behavioral concerns as well as estrangement between K.L.G. and Gardner. While Gardner testified that the room rentals did not "bother" K.L.G., that the children know they are "welcome" to lock anything up in his closet that they do not want left out when he rents out their rooms, and that the children enjoy the "extra money" he gives them for renting out their rooms, the trial court could have found such testimony not credible or outweighed by the teenagers' needs for stability in each of their two homes, to include not having to remember to lock things up each time they transfer to their mother's home, especially considering K.L.G.'s significant and ongoing emotional and mental issues. The trial court also could have reasonably inferred that the parent-child relationship and the children's awareness of the parties' custody disputes constrained the children from telling their father how they felt about having their rooms rented out.

The post May Court Order Parent Not to Rent Out Children's Bedrooms When the Children Aren't In His Custody? appeared first on Reason.com.

Charles Lane's column in the Washington Post summed up my thinking:

When historians evaluate the Supreme Court's impact on early 21st-century America, they will no doubt focus on the 2015 decision legalizing same-sex marriage or the overthrow of Roe v. Wade last year.

As Sunday's Super Bowl reminds us, however, the most underrated Supreme Court decision of the past decade might be Murphy v.National Collegiate Athletic Association. In that 2018 ruling, the justices declared unconstitutional a 1992 federal law that barred 46 states from repealing their then-existing bans on sports betting.

Now, 36 states and D.C. permit bets on the NFL, MLB, NBA — you name it. Leagues that once shunned betting as a threat to their integrity cheerfully accept legal sportsbooks as official "partners."

Whether or not you bet, there's no escape from advertising by companies such as FanDuel and DraftKings. With bewildering speed, a language once intelligible only to Las Vegas habitues — "parlay," "over-under" — has gone mainstream.

This year's Super Bowl was the first played in a state — Arizona — with legal sports gambling. A service that tracks the location of online sports betting transactions found that 100,000 of the 100 million "pings" to sports betting apps that it traced nationwide on Sunday came from State Farm Stadium or nearby, according to the Wall Street Journal. It's not yet known how much people wagered on the contest via legal sportsbooks, but the industry's trade association has estimated $1 billion. . . .

Gambling is known to be addictive because it supplies such a rush. Though integrity of sports was the 1992 law's primary concern, gambling addiction was also a potential harm against which the measure, sponsored by former NBA star Sen. Bill Bradley (D-N.J.), sought to protect.

A few months ago, I was on a flight to Las Vegas for a talk at UNLV. The person sitting next to me worked for the marketing department of one of the large casino conglomerates. He made no effort to conceal what was on his screen, and I availed myself of the opportunity to read his presentation. (Never do any work on a plane unless you are willing to have other people see it.) The casino was trying to calculate the correct level of "enticement" needed to hook a person on the app. In other words, how many free "credits" would a person receive before he became a "loyal" member. I'm sure similar conversations were held back in the day at tobacco companies. At least in the past, people had to make a physical trip to a casino. Now, super-addictive apps can hook a person, and deplete his bank account anywhere. Lives will be ruined with a few swipes.

I think the societal effects of Murphy will dwarf the impact of Dobbs and Bruen. Without question the number of abortions has decreased, but not nearly as much as some advocates feared. And, on balance, I suspect that gun laws nationwide will not look much different in 5 years than they do now. But Murphy, a single decision led to a complete shift in the American economy. Don't tell Justice Gorsuch, but Indian tribes, which have come to rely on exclusive gaming facilities, may be the hardest hit. Plus, throw in Justice Kavanaugh's concurrence in NCAA v. Alston, and college athletics have been turned upside down by name-image-likeness deals. It's often the decisions that fly under the radar that are the most consequential.

The post What Was The Most Consequential Supreme Court Decision Over The Past Five Years? appeared first on Reason.com.

This suit is about a person's right to have a gun part called a "drop-in auto sear." John Roe, litigating under a pseudonym to avoid potential criminal liability, filed suit for a judgment declaring that he was entitled to have and keep a drop-in auto sear that he currently possesses….

Before we turn to Roe's arguments, we first must pose a question of our own: should we permit Roe to litigate this case under a pseudonym? Our courts are open to the public. One consequence of that fact is that "[t]he use of fictitious names is disfavored." The Federal Rules of Civil Procedure dictate that "the complaint must name all the parties." "Judicial proceedings are supposed to be open … in order to enable the proceedings to be monitored by the public. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity." That said, in narrow circumstances it is possible to overcome the "presumption that parties' identities are public information, and the possible prejudice to the opposing party from concealment." A party seeking to proceed by pseudonym must "show[ ] that the harm to the [party] … exceeds the likely harm from concealment."

Roe alleges that if he uses his real name, he will face possible criminal prosecution, if it turns out that his possession of the auto sear is unlawful. There are shades of a Fifth Amendment self-incrimination assertion in this argument. We have limited anonymity to cases in which there is a danger of retaliation, and "when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses." On the other side, we have refused to allow plaintiffs to proceed anonymously merely to avoid embarrassment. We have never had to consider whether the threat of criminal exposure should be a factor for district courts to weigh when deciding whether to permit a plaintiff to litigate under a pseudonym. One might argue that the danger of retaliation encompasses the threat of criminal prosecution, but this would be breaking new ground. Cf. Doe v. City of Chicago (7th Cir. 2004) (indicating that we would protect a plaintiff's identity to prevent their sexual orientation from becoming public); Doe ex rel. Doe v. Elmbrook School Dist. (7th Cir. 2011) (protecting plaintiffs' identities to prevent retaliation from the public for religious beliefs), rev'd en banc (vacating on other grounds).

Several of our sister circuits [citing Fifth, Sixth, Ninth, and Eleventh Circuit cases], however, do permit district courts to consider whether "plaintiffs were compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution," when determining whether the plaintiff's privacy interests outweigh the interests of the public and the defendant.

This is a delicate issue—one that we need to approach with care. We conclude that this is not the case in which to make any broad pronouncements about criminal exposure. Roe's anonymity was not among the issues that the parties presented and argued on appeal. Granted, the district court ordered Roe to show cause why he could proceed anonymously, and the parties briefed the matter at that level. The district court signaled its skepticism, explaining that "[e]nforcement of the law is not likely to be a kind of harm that would justify allowing a litigant's identity to remain hidden." It also indicated its intention to comply with our instruction that "the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." But in the end it never formally decided the issue, opting instead to let Roe remain anonymous, though only through the motion-to-dismiss stage.

For good reason, it is unusual for plaintiffs to attempt to litigate in this manner. We in no way encourage it. And even if the public docket reflects a pseudonym, that does not excuse the duty to comply with Circuit Rule 26.1, which requires even an anonymous litigant to disclose her true name on the disclosure statement and file the statement under seal. This rule is necessary "to enable a judge of this court to determine whether he or she [should recuse] from the case" and protect the impartiality of our proceedings….

For more, see The Law of Pseudonymous Litigation, p. 1400.

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It is in the second episode that the filmmakers turn to Franklin Roosevelt, the only president forced to contend with the Third Reich while in office. Roosevelt himself was capable of bigotry. During his first election campaign, Roosevelt allowed himself a kind of casual but nasty xenophobia, as in a San Francisco speech in which he assailed the Chicago electricity magnate Samuel Insull, who was taking his employees down with him as his firm failed. Roosevelt spoke against "the Ishmael or Insull, whose hand is against every man's," a line so creepy one can only ask, "What does that mean?" In his March 1933 inaugural address, just weeks before Hitler opened his first concentration camp, Roosevelt channeled Henry Ford on international capital, claiming that "the rulers of the exchange of mankind's goods have failed" and that "practices of the unscrupulous money changers"—code for Jewish Wall Street—"stand indicted." Burns covers none of this.

Roosevelt apparently did hold some anti-Semitic sentiments (which were of course quite common at the time). And the line about "the Ishmael or Insull" might indeed yield a "What does that mean?" reaction. But a bit of quick Googling led even Bible-ignorant me to Genesis 16:11-12:

11 And the angel of the Lord said unto her, Behold, thou art with child and shalt bear a son, and shalt call his name Ishmael; because the Lord hath heard thy affliction.

12 And he will be a wild man; his hand will be against every man, and every man's hand against him; and he shall dwell in the presence of all his brethren.

This seems to fit with the Roosevelt sentence that the review was quoting:

Whenever in the pursuit of this objective the lone wolf, the unethical competitor, the reckless promoter, the Ishmael or Insull whose hand is against every man's, declines to join in achieving an end recognized as being for the public welfare, and threatens to drag the industry back to a state of anarchy, the Government may properly be asked to apply restraint.

The theory is that Insull (who was apparently not Jewish, but the son of a lay preacher) was just out for himself, rather than working harmoniously with others, which connects to Ishmael, whose "hand" was "against every man, and every man's hand against him." And my guess is that Roosevelt's 1932 audience knew the Bible enough not to react with "What does that mean?," or view the line as "creepy."

In any case, I thought I'd pass this along. Perhaps I myself am mistaken on this; again, I'm no history writer (while Shlaes is one) and certainly no Bible expert. Still, I wonder whether this item is an illustration of how easy it is for people to miss the extent to which Biblical references have been common in Western life.

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Plaintiff … was injured in a car accident caused by a negligent driver. The parties agree that the driver was at fault for the accident and agree that his insurer has tendered the full limits of his liability policy. Through this breach of contract action, Plaintiff seeks additional recovery under the underinsured motorist ("UIM") provisions of his insurance policy, issued by Defendant Progressive Specialty Insurance Company …. The parties dispute the extent of Plaintiff's injuries that were caused by the accident, and Progressive has denied Plaintiff's UIM claim.

Progressive has filed a Motion in Limine seeking to preclude references at trial to Progressive as the named defendant. Progressive contends it would suffer unfair prejudice if a jury was aware of its relationship to this action. Thus, Progressive requests that the parties use the name of the non-party driver as the defendant. Progressive argues that the substitution is in accord with "the substantive law of the forum state – Pennsylvania," and the non-dipositive opinion issued by the Pennsylvania Superior Court in Stepanovich v. McGraw (Pa. Super. 2013), where the underlying tortfeasor was also a party to the action.

Plaintiff opposes the Motion. He states that he does not intend to introduce evidence of Progressive's UIM coverage limits or the amount of the tortfeasor's liability insurance limits. However, Plaintiff argues that Progressive should remain as the named defendant so that the jury understands Progressive's role as an adverse party and the breach of contract claim for UIM benefits….

Progressive … seeks to shield its identity from the jury because of a broadly alleged fear of an inflated jury verdict. In support, Progressive cites Paxton Nat. Ins. Co. v. Brickajlik (Pa. 1987), which involved an insured's breach of a contractual duty to cooperate in a subrogation action to recoup losses paid. The policyholder refused to permit the insurer to proceed against a third party in his name. The Pennsylvania Supreme Court concluded that the insured was in material breach of the policy because subrogation actions "would almost certainly be stronger if filed in the name of the insured," and use of his name would ward off a jury's temptation to render a decision "based upon the extraneous consideration that an insurance company will actually pay the bill."

Here, Progressive fails to provide any binding or persuasive authority permitting it to shield its identity by placing before the jury the name of an individual who is not a party to the UIM policy, not under any obligation pursuant to a policy, and who has no legal obligation with respect to the instant litigation….

Progressive briefly invokes Federal Rule of Evidence 403, which provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Like Rule 411, Rule 403 is not a mechanism to permit a party to proceed anonymously or in the name of a non-party and … runs counter to the general right of the public to know the identity of those who come before the Court. Absent exceptional circumstances not set forth by Progressive, the requested relief is not warranted.

Finally, the Court notes that any potential prejudice to Progressive proceeding in its own name is offset by the Plaintiff's agreement not to introduce evidence of the UIM policy limits and the amount of the underlying liability payments received….

Within five days, the case settled (though this may also have stemmed from the court's decision to exclude evidence of plaintiff's hernia, which plaintiff claimed stemmed from the injury; the court held that expert evidence would be required to support that theory).

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Plaintiff Benjamin Edelman brings this suit in law and equity to correct the harm that Harvard University has caused to his career, livelihood, and reputation by unlawfully and brazenly ignoring its own policies, and acting in bad faith, when evaluating his conduct in conjunction with his candidacy for promotion to tenure at Harvard Business School ("HBS"). The mixed report from the relevant committee was the sole negative factor in his tenure process, and caused the failure of his candidacy.

Plaintiff was a tenure-track professor at HBS from 2007 until 2018. He is a world-leading expert on online markets and the internet. His academic work, teaching, and service at HBS were unusually clearly worthy of tenure, even by HBS's high standards.

Plaintiff was the subject of negative publicity, unrelated to his role at HBS, in 2014. In preparation for his review for tenure in 2015, Harvard Business School convened a Faculty Review Board ("FRB") to determine whether he had engaged in misconduct that should affect his candidacy. The FRB process was governed by a then-new HBS policy, the Principles and Procedures for Responding to Matters of Faculty Conduct (the "P&P").

Following the 2015 review, HBS determined to delay Plaintiff's candidacy for tenure by two years, while requiring him to take specific steps to contribute to the HBS community and demonstrate his fitness for tenure. He completed, and excelled at, each of these tasks.

In 2017, although there had been no new publicity or allegations of misconduct, HBS again convened an FRB. In violation of the clear terms of the P&P, in violation of HBS's promise to follow the P&P, and in violation of Plaintiff's reliance on that promise, HBS then used the FRB as a forum for anonymous complaints about Plaintiff's character.

The P&P establishes clear rights and specific procedures, but HBS's 2017 FRB process in numerous respects ignored those protections. Contrary to P&P rules about when and why an FRB can be opened, the 2017 FRB was convened without an allegation of misconduct. Contrary to P&P rules requiring a clear allegation at the outset, the 2017 FRB failed to provide Plaintiff with proper notice of the scope and nature of the inquiry. Contrary to P&P rules requiring the FRB to "investigate" the allegation, the 2017 FRB process by its own admission was "not an investigation." Indeed, the FRB's report presented 12 anonymous, context-free criticisms— totally abrogating the P&P requirement that the FRB report share its evidence both with its target and with its readers, and preventing Plaintiff from meaningfully rebutting incorrect claims. Furthermore, contrary to P&P rules requiring FRB to stay within the allegation it stated at the start, and more generally to follow an orderly process, the FRB expanded its inquiry dramatically in its final weeks, limiting Plaintiff's ability to respond to the spurious new concerns. The FRB's final report was the sole negative input into the tenure process, and the sole cause for denial of Plaintiff's application for tenure.

HBS's conduct in this matter was a breach of the black letter of its own policy, and of its contract with Plaintiff. HBS also acted in this matter in bad faith, misapplying and twisting its policies in order to engineer the denial of Plaintiff's tenure application. Repeatedly, HBS made decisions motivated by public relations, political concerns, and personal animus. These tactics breached the governing contract and violated HBS's duty of good faith and fair dealing.

Plaintiff does not now allege that he was entitled to tenure at HBS. But he was entitled to have his candidacy considered according to the specific procedure HBS promised, including both compliance with the procedural protections established by P&P and good faith in its application….

A Boston Globe article (Hilary Burns) unsurprisingly reports that Harvard declined to comment on the lawsuit.

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The Global Disinformation Index (GDI) is a British organization that evaluates news outlets' susceptibility to disinformation. The ultimate aim is to persuade online advertisers to blacklist dangerous publications and websites.

One such publication, according to GDI's extremely dubious criteria, is Reason….

The U.S. government evidently values this work; in fact, the State Department subsidizes it. The National Endowment for Democracy—a nonprofit that has received $330 million in taxpayer dollars from the State Department—contributed hundreds of thousands of dollars to GDI's budget, according to an investigation by The Washington Examiner's Gabe Kaminsky….

Reason's rating was due to three factors, according to GDI: "no information regarding authorship attribution, pre-publication fact-checking or post-publication corrections processes, or policies to prevent disinformation in its comments section."

It is not clear precisely what GDI means—the organization did not respond to requests for comment, and it has not made its full scoring analysis available to the public. But contrary to what GDI suggests, the authorship of Reason articles is clearly communicated to readers. Reason writers link to their sources, and promptly make (and note) corrections whenever appropriate. It's true that Reason does not specifically police disinformation in the comments section; that is perhaps an area where Reason's philosophy—free minds and free markets—clashes with GDI's….

If a self-described disinformation-tracking organization wants to loudly proclaim, in partisan fashion, that advertisers should only use mainstream and liberal news sites, it has that right. But advertisers should take note of its obvious bias, total lack of transparency in detailing media outlets' scores, and other methodological issues. And the State Department certainly has no business helping to fund it.

The whole article is much worth reading.

The post "U.S. State Department Funds a Disinformation Index That Warns Advertisers To Avoid <i>Reason</i>" appeared first on Reason.com.

Politico is suggesting, as others have, that by checking white she was distancing herself from her Asian Indian heritage.

One simply cannot surmise that from the box she checked. When Haley registered to vote, the options for race were "White, Black/African American, Asian, Hispanic, Other." In one the many anomalies of America's messed up racial classification system, people are asked to self-identify, but are not given the official definitions of who is included in each group.

When Haley was born in 1972, federal agencies generally classified Indian Americans as white. When the US government proposed uniform rules for racial definitions, Indians were deemed white. At the last minute, a small Indian American group persuaded the powers-that-be to put Indians into the "Asian American and Pacific Islander" classification. Even then, some states and federal agencies excluded Indians from the Asian classification for another decade or two.

But all that said, shouldn't Haley have known to put down "Asian," unless she was trying to obscure her identity? Well, even most law professors could not tell you the precise definitions of the different classifications. Iranian, Afghans, and Armenians are "white." Chinese, Japanese, Koreans, and Filipinos are "Asian." If you knew that much, but don't know Indians' official status, would it be clear to you that you should check "Asian" and not, like other Caucasians from the Asian continent, white? Put slightly differently, the "Asian American" classification grew out of classifications that either identified people by East Asian ethnicity (Chinese, Japanese, etc) or served as a replacement for what used to be called "Oriental." Indian Americans fit into neither group.

Even today, 45 years after the official classifications came into being, most "Asian Americans" do not identify with that category, many Americans don't think of South Asians as "Asian Americans," and South Asians are substantially less likely to identify with the "Asian" label than are East Asians.

In short, if there had been a "South Asian" or "Indian" box to check, and Haley had chosen to check white, one could fairly surmise she was distancing herself from her heritage. But given the arbitrary choices of "white" or "Asian" with no definitions, the average person of Indian descent could have easily thought that an Indian, especially one of relatively fair complexion, came under the "white" classification.

PS If you find discussion of such matters interesting, be sure to pick up my book, Classified: The Untold Story of Racial Classifications in America.

The post The Bogus Controversy Over Nikki Haley Checking "White" on Her Voter Registration Card Resurfaces appeared first on Reason.com.

This is an appeal by plaintiff-appellant, Kevin Tharp, from a decision … in favor of defendants-appellees Hillcrest Baptist Church of Columbus, Ohio … and [Pastor] Timothy W. Lee ….

According to the allegations in appellant's amended complaint, "on August 21, 2017, * * * Pastor Lee, a reverend with the Church, held a private conference where '[Pastor] Lee asked [appellant] about a past encounter that occurred with another Hillcrest Baptist Church congregant over thirty years ago.'" The meeting was prompted because a current attendee of the church, "now an adult, had recently recognized [appellant] as the man that sexually molested him when he was fifteen years old." Although appellant's complaint "blandly describes this sexual abuse as 'a past encounter,' [appellant] admitted in discovery to a pattern of sexually abusing young boys."

During his deposition testimony, appellant "admitted having previously molested the then-teen." Specifically, appellant testified he touched this individual in the "[g]roin area," and acknowledged that he touched this individual's penis. According to appellant's deposition, this was not "the only minor that [appellant] abused." …

The trial court found that "[d]espite admitting to sexually abusing minors while they slept," appellant "took exception to characterizing that conduct as molestation." When asked during his deposition if he considered his conduct "to be molestation," appellant responded "[n]o," stating there was "no sexual intent." Appellant characterized his intent as "[s]howing affection." When asked why he touched the groin area, appellant stated: "Most pleasurable part for a person of the male species."

After confronting appellant "with this history, Pastor Lee held an emergency meeting at the Church to discuss [appellant's] admitted history of sexual abuse." During that meeting, "Pastor Lee informed the congregation that he'd consulted with professionals at Netcare, who opined in turn that [appellant] had an incurable disease, and that his conduct at the Church amounted to grooming children." … [T]he Hillcrest Board of Trustees, referred to as the 'Vision Team' at Hillcrest * * * convened a meeting and voted to remove [appellant] from church leadership and church membership." …

The Court of Appeals held that a secular American court had no jurisdiction over Tharp's ejection from the church:

[M]atters of "[c]hurch discipline, ecclesiastical government, or 'the conformity of the members of the church to the standard of morals required of them' is beyond the scope of review by a secular tribunal." Stated otherwise, "secular courts will not inquire into whether disfellowship or expulsion from church membership was in accordance with church by-laws or regulations."

Upon review, we find no error with the trial court's determination that, based on the allegations presented, it was "unable to adjudicate the presence or absence of circumstances so irreconcilable with articles of faith as might necessitate procedural deviation from ordinary decision-making per the internal bylaws," nor would it be able, under neutral principles of law, to "assess ultimate substantive ecclesiastical questions regarding membership and participation." As recognized by the trial court, the instant dispute, involving questions as to the propriety of church discipline and the "theological weight to be given to particular faith infractions," would necessarily require the review of ecclesiastical matters over which the court lacked subject-matter jurisdiction.

And it rejected Tharp's defamation claims:

The trial court found, even assuming appellant could demonstrate the statements at issue were defamatory, they were made pursuant to a qualified privilege. In finding that appellees were protected by a qualified privilege, the trial court noted the summary judgment evidence indicated that "Pastor Lee, as the leader of his congregation, brought [appellant's] admissions to Church Leadership and the parents of children who had interactions with [appellant]." The trial court held in part: "Clearly, Pastor Lee had a duty to make this disclosure in order to protect the members of his congregation. This is especially true given the fact that the individual who recognized [appellant] was concerned that [appellant] was engaging in the same grooming behaviors with the children of the congregation that he had experienced when he was a teenager." The trial court further found "Pastor Lee did not share [appellant's] prior misconduct of abusing children beyond those who had a legitimate interest in knowing." Finally, the trial court addressed the issue of malice, finding "there is no record evidence that Pastor Lee's statements were made with either knowledge that the statements were false or reckless disregard as to their truth or falsity." …

It is well-settled that "[t]he purpose of a qualified privilege is to protect speakers in circumstances where there is a need for full and unrestricted communication concerning a matter in which the parties have an interest or duty." … [W]e find no error with the trial court's determination that "Pastor Lee had a duty to make this disclosure in order to protect the members of his congregation" (i.e., that the statements at issue were protected as communications in which the speaker had an interest in the subject matter and a duty to convey to the recipients sharing a common interest in the communications)….

Further, we agree with the trial court that the evidence on summary judgment did not create a genuine issue of material fact as to whether appellees acted with malice. Under Ohio law, where a defendant has a qualified privilege regarding statements, "that privilege can be defeated only by a clear and convincing showing that the communication was made with actual malice." In such a "qualified privilege case, 'actual malice' is defined as acting with knowledge that the statements are false or acting with reckless disregard to their truth or falsity." …

As previously discussed, the statements at issue were motivated by a "church interest," i.e., involving an underlying church discipline matter, as well as an interest in protecting minors. Further, the statements at issue had a "factual foundation" based on appellant's own admissions as to his past activity.

The court rejected Tharp's claim for "breach of confidentiality":

While appellant appears to equate the conduct at issue to a clergy's obligations to maintain the confidentiality of a penitent's confession, the facts on summary judgment do not support such a characterization. Specifically, the undisputed facts do not indicate that appellant sought out Pastor Lee for counseling or to confess a past sin; rather, Pastor Lee, after learning of the past conduct of appellant from a current congregant, sought out appellant to inquire about the truth of those allegations. As noted by appellees, the summary judgment evidence does not suggest appellant was seeking spiritual consultation, nor did Pastor Lee provide testimony as to a confession or confidential communication made for religious counseling. Accordingly, the trial court did not err in granting summary judgment in favor of appellees as to appellant's claim for breach of confidentiality.

And the court rejected Tharp's intentional infliction of emotional distress claim:

[A]ppellant contends he suffered emotional distress as a result of Pastor Lee informing the congregation he had an incurable disease when the only support for this contention was the "supposed unnamed 'professionals' who had never seen or interacted with [appellant]."

The record on summary judgment fails to create a genuine issue of material fact that the conduct at issue, arising out of an internal church investigation, rose to the level of extreme and outrageous behavior necessary to support a claim for intentional infliction of emotional distress, nor does the record present a genuine issue of material fact as to whether appellees' intent, based on concerns pertaining to the protection of minors, was to cause appellant emotional distress. Further, we have previously determined, as did the trial court, that the communications at issue were protected by a qualified privilege.

Congratulations to Melvin Davis (Reminger Co.), who represented the defendants.

The post Court Rejects Lawsuit Against Church for Disclosing Member's 30-Year-Past Touching of 15-Year-Old's Penis appeared first on Reason.com.

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"Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Matal v. Tam (2017).

With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc ("the Hateful Conduct Law" or "the law"). Yet, the First Amendment protects from state regulation speech that may be deemed "hateful" and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs' motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED….

The Hateful Conduct Law does not merely require that a social media network provide its users with a mechanism to complain about instances of "hateful conduct". The law also requires that a social media network must make a "policy" available on its website which details how the network will respond to a complaint of hateful content. In other words, the law requires that social media networks devise and implement a written policy—i.e., speech.

For this reason, the Hateful Conduct Law is analogous to the state mandated notices that were found not to withstand constitutional muster by the Supreme Court and the Second Circuit: NIFLA and Evergreen. In NIFLA, the Supreme Court found that plaintiffs—crisis pregnancy centers opposing abortion—were likely to succeed on the merits of their First Amendment claim challenging a California law requiring them to disseminate notices stating the existence of family- planning services (including abortions and contraception). The Court emphasized that "[b]y compelling individuals to speak a particular message, such notices 'alte[r] the content of [their] speech.'" Likewise, in Evergreen, the Second Circuit held that a state-mandated disclosure requirement for crisis pregnancy centers impermissibly burdened the plaintiffs' First Amendment rights because it required them to "affirmatively espouse the government's position on a contested public issue…."

Similarly, the Hateful Conduct Law requires a social media network to endorse the state's message about "hateful conduct". To be in compliance with the law's requirements, a social media network must make a "concise policy readily available and accessible on their website and application" detailing how the network will "respond and address the reports of incidents of hateful conduct on their platform." N.Y. Gen. Bus. Law § 394-ccc(3). Implicit in this language is that each social media network's definition of "hateful conduct" must be at least as inclusive as the definition set forth in the law itself. In other words, the social media network's policy must define "hateful conduct" as conduct which tends to "vilify, humiliate, or incite violence" "on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression." N.Y. Gen. Bus. Law § 394-ccc(1)(a). A social media network that devises its own definition of "hateful conduct" would risk being in violation of the law and thus subject to its enforcement provision….

Clearly, the law, at a minimum, compels Plaintiffs to speak about "hateful conduct". As Plaintiffs note, this compulsion is particularly onerous for Plaintiffs, whose websites have dedicated "pro-free speech purpose[s]", which likely attract users who are "opposed to censorship". Requiring Plaintiffs to endorse the state's definition of "hateful conduct", forces them to weigh in on the debate about the contours of hate speech when they may otherwise choose not to speak. In other words, the law, "deprives Plaintiffs of their right to communicate freely on matters of public concern" without state coercion.

Additionally, Plaintiffs have an editorial right to keep certain information off their websites and to make decisions as to the sort of community they would like to foster on their platforms. It is well-established that a private entity has an ability to make "choices about whether, to what extent, and in what manner it will disseminate speech…" These choices constitute "editorial judgments" which are protected by the First Amendment. In Pacific Gas & Electric Co. v. Public Utilities Commission of California, the Supreme Court struck down a regulation that would have forced a utility company to include information about a third party in its billing envelopes because the regulation "require[d] appellant to use its property as a vehicle for spreading a message with which it disagrees."

Here, the Hateful Conduct Law requires social media networks to disseminate a message about the definition of "hateful conduct" or hate speech—a fraught and heavily debated topic today. Even though the Hateful Conduct Law ostensibly does not dictate what a social media website's response to a complaint must be and does not even require that the networks respond to any complaints or take down offensive material, the dissemination of a policy about "hateful conduct" forces Plaintiffs to publish a message with which they disagree. Thus, the Hateful Conduct Law places Plaintiffs in the incongruous position of stating that they promote an explicit "pro-free speech" ethos, but also requires them to enact a policy allowing users to complain about "hateful conduct" as defined by the state….

The policy disclosure at issue here does not constitute commercial speech [as to which compelled disclosures are more easily upheld] …. The law's requirement that Plaintiffs publish their policies explaining how they intend to respond to hateful content on their websites does not simply "propose a commercial transaction". Nor is the policy requirement "related solely to the economic interests of the speaker and its audience." Rather, the policy requirement compels a social media network to speak about the range of protected speech it will allow its users to engage (or not engage) in. Plaintiffs operate websites that are directly engaged in the proliferation of speech …..

Because the Hateful Conduct Law regulates speech based on its content, the appropriate level of review is strict scrutiny. To satisfy strict scrutiny, a law must be "narrowly tailored to serve a compelling governmental interest." A statute is not narrowly tailored if "a less restrictive alternative would serve the Government's purpose."

Plaintiffs argue that limiting the free expression of protected speech is not a compelling state interest and that the law is not narrowly tailored. While Defendant concedes that the Hateful Conduct Law may not be able to withstand strict scrutiny, she maintains that the state has a compelling interest in preventing mass shootings, such as the one that took place in Buffalo.

Although preventing and reducing the instances of hate-fueled mass shootings is certainly a compelling governmental interest, the law is not narrowly tailored toward that end. Banning conduct that incites violence is not protected by the First Amendment, but this law goes far beyond that. {For speech to incite violence, "there must be 'evidence or rational inference from the import of the language, that [the words in question] were intended to produce, and likely to produce, imminent' lawless action." The Hateful Conduct law's ban on speech that incites violence is not limited to speech that is likely to produce imminent lawless action.}

While the OAG Investigative Report does make a link between misinformation on the internet and the radicalization of the Buffalo mass shooter, even if the law was truly aimed at reducing the instances of hate-fueled mass shootings, the law is not narrowly tailored toward reaching that goal. It is unclear what, if any, effect a mechanism that allows users to report hateful conduct on social media networks would have on reducing mass shootings, especially when the law does not even require that social media networks affirmatively respond to any complaints of "hateful conduct". In other words, it is hard to see how the law really changes the status quo—where some social media networks choose to identify and remove hateful content and others do not….

The court also concluded that the law was facially overbroad, as well as being unconstitutional as applied to Rumble, Locals, and me:

As the Court has already discussed, the law is clearly aimed at regulating speech. Social media websites are publishers and curators of speech, and their users are engaged in speech by writing, posting, and creating content. Although the law ostensibly is aimed at social media networks, it fundamentally implicates the speech of the networks' users by mandating a policy and mechanism by which users can complain about other users' protected speech.

Moreover, the Hateful Conduct law is a content based regulation. The law requires that social media networks develop policies and procedures with respect to hate speech (or "hateful conduct" as it is recharacterized by Defendant). As discussed, the First Amendment protects individuals' right to engage in hate speech, and the state cannot try to inhibit that right, no matter how unseemly or offensive that speech may be to the general public or the state. Thus, the Hateful Conduct Law's targeting of speech that "vilifi[es]" or "humili[ates"] a group or individual based on their "race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression", N.Y. Gen. Bus. Law § 394-ccc(1)(a), clearly implicates the protected speech of social media users.

This could have a profound chilling effect on social media users and their protected freedom of expression. Even though the law does not require social media networks to remove "hateful conduct" from their websites and does not impose liability on users for engaging in "hateful conduct", the state's targeting and singling out of this type of speech for special measures certainly could make social media users wary about the types of speech they feel free to engage in without facing consequences from the state. This potential wariness is bolstered by the actual title of the law— "Social media networks; hateful conduct prohibited" —which strongly suggests that the law is really aimed at reducing, or perhaps even penalizing people who engage in, hate speech online. As Plaintiffs noted during oral argument, one can easily imagine the concern that would arise if the government required social media networks to maintain policies and complaint mechanisms for anti-American or pro-American speech. Moreover, social media users often gravitate to certain websites based on the kind of community and content that is fostered on that particular website. Some social media websites—including Plaintiffs'—intentionally foster a "pro-free speech" community and ethos that may become less appealing to users who intentionally seek out spaces where they feel like they can express themselves freely.

The potential chilling effect to social media users is exacerbated by the indefiniteness of some of the Hateful Conduct Law's key terms. It is not clear what the terms like "vilify" and "humiliate" mean for the purposes of the law. While it is true that there are readily accessible dictionary definitions of those words, the law does not define what type of "conduct" or "speech" could be encapsulated by them. For example, could a post using the hashtag "BlackLivesMatter" or "BlueLivesMatter" be considered "hateful conduct" under the law? Likewise, could social media posts expressing anti-American views be considered conduct that humiliates or vilifies a group based on national origin? It is not clear from the face of the text, and thus the law does not put social media users on notice of what kinds of speech or content is now the target of government regulation.

Accordingly, because the Hateful Conduct Law appears to "reach[…] a substantial amount of constitutionally protected conduct", the Court finds that Plaintiffs have demonstrated a likelihood of success on their facial challenges under the First Amendment.

The court disagreed, however, with our argument that the law violated 47 U.S.C. § 230:

The Communications Decency Act provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." … [T]he Hateful Conduct Law shows that Plaintiffs' argument is without merit. The law imposes liability on social media networks for failing to provide a mechanism for users to complain of "hateful conduct" and for failure to disclose their policy on how they will respond to complaints. The law does not impose liability on social media networks for failing to respond to an incident of "hateful conduct", nor does it impose liability on the network for its users own "hateful conduct". The law does not even require that social media networks remove instances of "hateful conduct" from their websites. Therefore, the Hateful Conduct Law does not impose liability on Plaintiffs as publishers in contravention of the Communications Decency Act.

Many thanks to FIRE—and in particular Darpana Sheth, Daniel Ortner, and Jay Diaz—as well as local counsel Barry Covert (of Lipsitz Green Scime Cambria LLP) for representing me in this case.

UPDATE: Jonathan Turley comments on the case.

The post Court Blocks N.Y. Law Mandating Posting of "Hateful Conduct" Policies by Social Media Platforms (Including Us) appeared first on Reason.com.

… Plaintiff's neighbor installed certain lighting equipment that had the effect of illuminating a portion of Plaintiff's home, as well as several trees and vines on Plaintiff's property. To put it briefly, Plaintiff was somewhat displeased with his neighbor's use of that lighting equipment so he erected certain large polyurethane panels to block the lights; {Plaintiff [had] believed that his neighbor's "lights were damaging Plaintiff's trees by attracting pests, and [] Plaintiff was concerned for the health of his trees which symbolized Plaintiff's religious beliefs as indicated by the Celtic Crosses in Plaintiff's yard and set within and between Plaintiff's [c]ypress trees."}

[W]hen the City of San Jose complained that the panels (as well as Plaintiff's cypress trees) were in violation of certain municipal code provisions, citations issued, and then administrative proceedings ensued, and the ultimate result was that Plaintiff removed the polyurethane panels himself but was not required to cut or remove his trees, or to pay any fines or fees, and the instant lawsuit nevertheless ensued. [Plaintiff was also required to prune certain vines between the trees] …

Plaintiff's first claim relies on the First Amendment and suggests that his "trees are expressions, symbols of his religious beliefs and are a protected form of speech" and that "Defendants' demand that Plaintiff destroy these trees is not only unlawful and without any legal authority … but a violation of the First Amendment: Freedom of religion and freedom of speech … Defendants must pay damages to Plaintiff, according to the formula of $2,500 per day per defendant, per cause of action, to compensate for the injuries suffered." …

{Plaintiff denies having any religious affiliation or—strictly speaking—any religious beliefs, instead, he described himself as subscribing to a more generalized and nebulous spirituality that he explained as being rooted in quantum physics and celestial mechanics as such:

[A]ctually they're more like spiritual beliefs and those beliefs are embedded in quantum physics in the sense that everything is related and everything is connected. The separation thing is an illusion on the quantum physics level and I believe that plants and trees have consciousness. When I go out in the forest, I can almost, like, feel the consciousness. I think some people mistake that as being fairies or ghosts, but I think there's a collective consciousness among trees and experiments have shown that plants are aware of threat. Using galvanic monitoring of plants, somebody says I'm going to burn you and the plant responds. And we also know that there's certain hormones and transmitters that plants—that are in the human brain or neurotransmitters involved of (sic) transition of though, and we know that some people feel like talking to their plants can help their growth.

So, I have beliefs that, spiritual beliefs about trees and it's related, again, to quantum physics and it's also related to celestial mechanics. And in terms of trees, we know in Genesis there's the Tree of Life and then there's the Tree of Good and Evil, we know people put up Christmas trees and put presents underneath it. So, belief in that trees have religious, spiritual significance is an age-old religious belief shared by many.

Plaintiff did suggest that he planted 12 cypress trees because he thinks the number 12 has both religious and cosmic significance—citing the fact that there were 12 tribes of Israel, 12 disciples of Christ, 12 hours in (part) of the day, 12 signs of the zodiac, and 12 gods of Olympus—he claims that "12 has been seen as a mystical, magical and religious symbol, and again, it has cosmological significance." He added that "as a reflection of my own beliefs, I planted 12 and I made sure it was 12, and then I put [the] Celtic Cross as well as other religious symbols such as a Buddha because I share Buddhist beliefs and those are right there in the front yard between those trees." In short, Plaintiff is quite adamant that his feeling towards his trees is not part of any set of religious beliefs—and certainly not part of any organized or recognized religion; instead, to put it in his own words, he describes trees as such: "they're still religious symbols—well, not religious, spiritual. Let's not use the word 'religious,' other people would because it is a religious symbol, for me it's a spiritual … to me it's a spiritual symbol that happens to have religious significance." When asked by Defense Counsel if removing the vines prevented him from being able to appreciate "the spiritualness" of his trees—Plaintiff responded, "No. No." Therefore, it appears that the vines, at least, were spiritually insignificant….}

Here, there is no genuine issue of material fact because: (1) the San Jose Municipal Code provisions requiring trees to be kept pruned and below a certain height are valid and neutral regulations of general application that do not constitute a constitutionally cognizable or otherwise substantial burden on the exercise of Plaintiff's beliefs as he has described them in his deposition; (2) Plaintiff specifically disavows religion, and claims that his connection to his trees is rooted in a vague and indeterminate concept of spirituality, quantum physics, and cosmic mechanics; (3) Plaintiff has failed to demonstrate that any of the actions complained of in his SAC ever actually impinged on any of his beliefs; and, (4) Plaintiff conceded that he was neither even made to cut his trees, or that he was ever assessed any fine or penalty related to his trees.

In order to state a free speech claim in this context, Plaintiff must show that the unfettered growth of his 12 cypress trees is conduct "sufficiently imbued with elements of communication" worthy of First Amendment free speech protection. To that end, Plaintiff must demonstrate (1) an "intent to convey a particularized message," and (2) that, "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." "[A] narrow, succinctly articulable message is not a condition of constitutional protection"; instead, the message must be "delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative." Plaintiff has not even alleged any such thing, let alone presented competent evidence in support thereof. To put it mildly, the court is not persuaded that there is any likelihood at all—let alone a "great likelihood"—that the unfettered growth of the 12 cypress trees here would be intended by Plaintiff, or understood by anyone, to be communicative of anything or to any degree….

The post No First Amendment Protection for 12 Cypress Trees, appeared first on Reason.com.

The causes of action for defamation were based on significant allegations that defendant Giuliani (and defendant Powell, against whom the action has been dismissed) made defamatory statements about plaintiffs' involvement in the 2020 Presidential election while knowing that the statements were false, or at least with reckless disregard for the truth.

Those causes of action also allege that defendants Fox News, Dobbs, and Bartiromo did not merely report the newsworthy fact that the President's campaign lawyers were recklessly making statements conveying false information. Rather, the complaint alleges in detailed fashion that in their coverage and commentary, Fox News, Dobbs, and Bartiromo effectively endorsed and participated in the statements with reckless disregard for, or serious doubts about, whether the assertions or implications that plaintiffs had participated in election fraud had any basis in truth or were supported by any reliable evidence.

In fact, according to the allegations in the complaint, Fox News, Dobbs, and Bartiromo stated that Smartmatic's election technology and software were widely used in the 2020 election and in Dominion machines to switch votes, when they actually knew, or easily could have known had they not purposefully avoided publicly available knowledge, that in 2020, the Smartmatic technology was used only in Los Angeles County and that the vote switching claims otherwise had no support. Based on the same reasoning, the claims against Pirro, which are based on similar allegations of defamatory statements made with actual malice, must be reinstated.

However, Supreme Court [that's the name for the New York trial court -EV] erred in dismissing the third and fifth causes of action as against defendant Giuliani, and we reinstate those claims. As pleaded, those causes of action allege defamatory statements forming the basis for defamation per se claims and do not sound in product disparagement or otherwise require the pleading of special damages.

The court did conclude that the cases against Fox Corporation—as opposed to Fox News—should have been dismissed (though with leave to replead if plaintiffs can allege that some "Fox Corporation employee played an affirmative role in the publication of the challenged defamatory statements" or "that Fox Corporation wholly dominated Fox News so as to [be] liable for the acts of its subsidiary").

And the court "decline[d] to find that plaintiffs should be deemed limited purpose public figures required to allege facts that, if true, would 'clearly and convincingly' show defamation with actual malice."

Congratulations to Edward C. Wipper and Joel Erik Connoly (Benesch, Friedlander, Coplan & Aronoff, LLP), who represent Smartmatic.

UPDATE: Fox News passes along this statement:

There is nothing more newsworthy than covering the president of the United States and his lawyers making allegations of voter fraud. We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported, and not rooted in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs.

The post Smartmatic's Libel Lawsuit Against Fox News Can Go Forward appeared first on Reason.com.

From the WSJ:

The U.S. says the suspected Chinese spy balloon shot down Feb. 4 violated sovereign U.S. airspace. But when it crossed the U.S. at altitudes as high as 65,000 feet, the balloon floated into the murky zone aloft where no international consensus exists about which, if any, nation wields control. . . .

Countries with advanced space programs, including the U.S. and China, have blocked efforts to extend nations' sovereignty to the edge of space, according to meeting minutes of the United Nations body examining the issue. They have opted for the freedom to operate their own craft without restriction. . . .

In the U.S., the Federal Aviation Administration monitors and controls airspace up to 60,000 feet for commercial and military traffic, a level recognized under international agreement and employed by other countries. The three objects downed over the weekend over the U.S. and Canada all fell within that airspace, which also extends to each nation's internationally recognized maritime boundary 12 miles offshore. . . .

International treaties hold that nations have no sovereignty in the reaches of outer space where satellites orbit, typically understood to begin about 330,000 feet. While a handful of countries have laid claim to the heights between 60,000 feet and that boundary, an expanse often cited as "near space," those claims aren't recognized by international law.

The lack of international agreements does not mean that some nations are not beginning to make claims. Further from the article:

In 2017, New Zealand became the first country to include oversight of such high altitudes in its space law, requiring users to secure licenses to operate above its territory. New Zealand didn't define high altitude. A few other countries have followed suit, including the United Arab Emirates, which set a limit of roughly 262,000 feet for its oversight of high altitudes. But in those cases, other countries haven't accepted the UAE's claim.

The post Was the Chinese Surveillance Balloon in U.S. "Near Space"? appeared first on Reason.com.

Khan's aggressive, progressive agenda has provoked strong opposition from portions of the business community. The FTC's move to eliminate the use of non-compete agreements has been labeled a "breathtaking power grab" and will provoke a serious legal challenge. Another case against Wal-Mart prompted the giant retailer to question the vitality of Humphrey's Executor and challenge the FTC's constitutionality.

Khan's agenda has also prompted discomfort within the FTC, and is apparently prompting one commissioner–Christine Wilson–to tender her resignation. Wilson writes in the Wall Street Journal:

Much ink has been spilled about Lina Khan's attempts to remake federal antitrust law as chairman of the Federal Trade Commission. Less has been said about her disregard for the rule of law and due process and the way senior FTC officials enable her. I have failed repeatedly to persuade Ms. Khan and her enablers to do the right thing, and I refuse to give their endeavor any further hint of legitimacy by remaining. Accordingly, I will soon resign as an FTC commissioner.

Since Ms. Khan's confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power. That task has become increasingly difficult as she has consolidated power within the Office of the Chairman, breaking decades of bipartisan precedent and undermining the commission structure that Congress wrote into law. I have sought to provide transparency and facilitate accountability through speeches and statements, but I face constraints on the information I can disclose—many legitimate, but some manufactured by Ms. Khan and the Democratic majority to avoid embarrassment.

That a Republican FTC Commissioner objects to Khan's agenda might not surprise. That Khan's leadership approach has also prompted dissension within the FTC's career ranks, on the other hand, may be more surprising.

From Wilson's WSJ op-ed:

I am not alone in harboring concerns about the honesty and integrity of Ms. Khan and her senior FTC leadership. Hundreds of FTC employees respond annually to the Federal Employee Viewpoint Survey. In 2020, the last year under Trump appointees, 87% of surveyed FTC employees agreed that senior agency officials maintain high standards of honesty and integrity. Today that share stands at 49%.

Many FTC staffers agree with Ms. Khan on antitrust policy, so these survey results don't necessarily reflect disagreement with her ends. Instead, the data convey the staffers' discomfort with her means, which involve dishonesty and subterfuge to pursue her agenda. I disagree with Ms. Khan's policy goals but understand that elections have consequences. My fundamental concern with her leadership of the commission pertains to her willful disregard of congressionally imposed limits on agency jurisdiction, her defiance of legal precedent, and her abuse of power to achieve desired outcomes.

That Khan's leadership style ruffles feathers or departs from precedent does not mean (necessarily) mean that she's doing anything wrong, nor does it mean that her policy initiatives won't survive legal challenge. On the other hand, the sorts of objections being made could be the sorts that could prompt judicial concern or suggest the sort of failure to engage in reasoned decisionmaking that often leads agencies to defeat in court.

UPDATE: Former FTC Commissioner Joshua Wright has an insightful Twitter thread on what Wilson's resignation could mean for the FTC going forward.

A lot of talk today about Commissioner Wilson's impending resignation from the FTC. There will be plenty to say about that I am sure. But I wanted to do a short thread on and what, if any, practical implications for the agency in the near term. Here goes: (1/x)

— Joshua Wright (@ProfWrightGMU) February 14, 2023

The post FTC Chair's Activism Prompts a Commissioner to Resign appeared first on Reason.com.

From a CNBC report on the decision:

The panel of five justices ruled that Trump's contempt fine for not complying with a subpoena for the records was a "proper exercise" of the discretionary power of Manhattan Supreme Court Judge Arthur Engoron.

The panel also said the fine of $10,000 per day "was not excessive or otherwise improper, under the particular circumstances." . . .

Engoron imposed the fine on Trump last April after ruling that he had repeatedly failed to give James' investigators business records from the Trump Organization that they were seeking for their probe of his real estate company.

"Mr. Trump has willfully disobeyed a lawful order of the court," Engoron said at the time.

Trump later paid the fine, but appealed Engoron's contempt finding.

The post New York Appeals Court Upholds Contempt Sanction Against Trump appeared first on Reason.com.

Pence allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work — language known as the "speech or debate" clause. The clause, Pence allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith's investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard.

"He thinks that the 'speech or debate' clause is a core protection for Article I, for the legislature," said one of the two people familiar with Pence's thinking, who spoke on condition of anonymity to discuss his legal strategy. "He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it."

The Speech or Debate Clause appears in Article I, Section 6, along with several other provisions:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The word "they" refers back to "Senators and Representatives," which appears at the outset of the paragraph. The Vice President is not a "Senator." Not a member of the legislative branch, or something to that affect. "Senator." Text matters. He was, without question, the "President of the Senate." But he was not a "Senator."

The Constitution expressly contrasts the President of the Senate and actual Senators. Article II, Section 1, spells out the role of the Vice President during the joint session.

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.

The President of the Senate is apart from the Senators.

Article I, Section 3, Clause 4 provides:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

Senators have votes on all legislation. The Vice President does not.

There is a long-simmering debate about which branch of government the Vice President belongs in, for purposes of the separation of powers. But there is very strong textual evidence that the Vice President is not a "Senator" for purposes of the Speech or Debate Clause.

The bigger surprise is that Pence did not invoke executive privilege. It's possible this "Speech or Debate" gambit may be a not-so-serious effort to fight the subpoena, stand for some institutional prerogative, and eventually give the special counsel everything he wants. (Much of what Pence knows is probably already in his book.) It may not matter much, because Trump will try to invoke executive privilege to block Pence's testimony.

Update: Gravel v. United States (1972) includes this line:

It is true that the Clause itself mentions only 'Senators and Representatives,' but prior cases have plainly not taken a literalistic approach in applying the privilege.

I would hope that the Scaliafied judiciary takes a literal approach to the Constitution.

The post Can The Vice President Invoke The "Speech or Debate" Clause? appeared first on Reason.com.