The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

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Sixth Amendment

2023 Criminal Trial Where Witnesses Wore Surgical Masks Violated Confrontation Clause

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From last week's Texas Court of Criminal Appeals decision in Smith v. State, written by Justice Scott Walker:

Appellant's Confrontation Clause rights were violated by the trial court's mask mandate….

In Romero v. State (Tex. Crim. App. 2005), … one of the State's key witnesses refused to testify without wearing a "disguise" consisting of "dark sunglasses, a baseball cap pulled down over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to obscure [his] mouth, jaw, and the lower half of his nose." This Court noted that "the presence requirement is motivated by the idea that a witness cannot 'hide behind the shadow' but will be compelled to 'look [the defendant] in the eye' while giving accusatory testimony."

[The court in Romero also reasoned that, "Although the physical presence element might appear, on a superficial level, to have been satisfied by Vasquez's taking the witness stand, it is clear that Vasquez believed the disguise would confer a degree of anonymity that would insulate him from the defendant. The physical presence element entails an accountability of the witness to the defendant…. In the present case, accountability was compromised because the witness was permitted to hide behind his disguise." -EV]

Although in Maryland v. Craig (1990), the Supreme Court [rejected a Confrontation Clause because it] determined that the testimony of a child through a one-way closed-circuit monitor was reliable even though the physical presence element was lacking, the facts in Craig are not analogous to Romero. "[U]nlike Craig, [Romero] also involve[d] a failure to respect a second element of confrontation: observation of the witness's demeanor." When more than two elements of confrontation are being compromised, this Court determined that the Confrontation Clause requirements can only be circumvented if the public policy interest being served is "truly compelling." We did not find the witness's fears compelling, noting differences between adults' fears and children's fears and the fact that the defendant already knew the witness's name and address….

The Confrontation Clause requires case-specific evidence showing an encroachment of the defendant's right to confrontation was necessary to further a public-policy interest for the encroachment to be allowed under the United States Constitution. Because a surgical mask affects the physical-presence element of the Confrontation Clause and the jury's ability to assess demeanor, the trial court was required to make case-specific showings of fact that the mask mandate was necessary to further a public-policy interest….

[T]he use of surgical masks in the case at bar … is a significant impediment to viewing facial expressions due to the coverage of both the nose and mouth …. A reversal of the conviction is warranted because (1) the trial court did not show case-specific evidence that the masks were necessary, and (2) the mask mandate was applied regardless of individual necessity….

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Donald Trump

Eleventh Circuit Upholds Dismissal of Trump v. Clinton and Affirms Sanctions Against Trump (Updated)

A rare instance in which courts were willing to impose sanctions upon sanctionable conduct.

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Today the U.S. Court of Appeals for the Eleventh Circuit largely upheld the district court's dismissal of Donald Trump's lawsuit against Hillary Clinton and others and affirmed the district court's award of sanctions against Trump and Alina Habba. Chief Judge William Pryor wrote for the panel, joined by Judges Brasher and Kidd.

Judge Pryor's opinion in Trump v. Clinton begins:

These four consolidated appeals concern five separate orders. In 2022, between his terms of office, President Donald Trump filed a lawsuit against dozens of defendants, alleging several claims, including two under the Racketeer Influenced and Corrupt Organizations Act and three under Florida law. The district court dismissed the amended complaint with prejudice for failure to state a claim. On the defendants' motions, the district court also entered sanctions against Trump and his attorneys, under Rule 11 and under its inherent authority. While those orders were on appeal, Trump and his attorneys moved the district court to reconsider each order in the light of a report by Special Counsel John Durham. They also moved to disqualify the district judge. The district court denied both motions. Two defendants ask us to sanction Trump for bringing a frivolous appeal.

We affirm the orders with a caveat. Because the district court lacked jurisdiction over one defendant, it erred in dismissing the claims against that defendant with prejudice. So we vacate the dismissal of those claims and remand with instructions to dismiss them without prejudice. Because Trump's remaining claims are untimely and otherwise meritless, we affirm the dismissal of the amended complaint with prejudice for the other defendants. And because Trump and his attorneys committed sanctionable conduct and forfeited their procedural objections, we affirm both sanctions orders. The Durham Report does not change our conclusions, and the district court lacked jurisdiction to consider the disqualification motion. Yet, because the appeal of the dismissal order is not frivolous, we deny both motions for appellate sanctions.

Update: Here are some portions of the opinion discussing the sanctions:

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Administrative Law

D.C. Circuit Upholds Energy Department Ban on Non-Condensing Furnaces and Water Heaters

After this decision, rescinding this Biden Administration rule may be more difficult.

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In American Gas Association v. U.S. Department of Energy, a divided panel of the U.S. Court of Appeals for the D.C. Circuit rejected a legal challenge to a regulation adopting energy efficiency standards for natural gas-powered consumer furnaces and commercial water heaters that effectively bans non-condensing units from the market. This regulation had been adopted in 2023, and the court heard oral argument in November 2024, but only released its opinion in November of this year.

According to the panel opinion, written by Judge Wilkins and joined by Judge Pillard, the regulation did not exceed DOE's authority under the Energy Policy and Conservation Act (EPCA) and was not arbitrary and capricious. Judge Rao dissented (and, in my view, had the better of the argument).

Here is how Judge Rao describes the issues and why the DOE rule should have been held unlawful.

This case concerns Department of Energy regulations that effectively ban a class of common and affordable gas-powered appliances. Millions of homes and commercial buildings are equipped with traditional, "non-condensing" gas furnaces and water heaters. These reliable appliances vent their exhaust up a standard chimney. A more efficient "condensing" technology exists, but it is incompatible with traditional chimneys. Instead, it requires a different venting mechanism. In its quest for greater efficiency, the Department has issued new efficiency standards that effectively ban the sale of non-condensing appliances. As a result, any consumer seeking to replace a traditional gas furnace or commercial water heater will be forced to install a condensing model, a switch that often requires disruptive and expensive renovations to a building's venting and plumbing systems.

These standards run afoul of the careful balance Congress struck in the Energy Policy and Conservation Act ("EPCA") between improving energy efficiency and preserving consumer choice. While EPCA empowers the Department to set efficiency standards, the statute also imposes a critical limit on that authority. The agency is prohibited from imposing an efficiency standard that will result in the "unavailability" of a product with a "performance characteristic" that consumers value.

No one doubts that the challenged regulations make non-condensing appliances unavailable. The central question in this case is whether a non-condensing appliance's venting mechanism is a protected "performance characteristic." Because these appliances utilize a chimney common to many older homes and buildings, installing a condensing appliance will often require complex and costly renovations that may reduce a building's useable space. The ability to vent through a traditional chimney is exactly the kind of real-world feature Congress protected from elimination in the marketplace. The Department's efficiency standards, which make non-condensing appliances unavailable, are therefore contrary to law.

Independent of this legal error, the Department failed to demonstrate that the regulations are "economically justified," as mandated by EPCA, by showing their "benefits … exceed [their] burdens." 42 U.S.C. § 6295(o)(2)(B)(i); see also id. § 6313(a)(6)(B)(ii). The Department utilized an economic model that we have previously held to be irrational and inconsistent with EPCA's requirements. The flawed model fares no better here. Because the regulations are contrary to law and predicated on an arbitrary economic analysis, I respectfully dissent.

As Judge Rao's opinion indicates, it is difficult to square the majority's approach to the statute with Loper Bright. The statutory question in the case is what counts as a "performance characteristic." The majority thinks the statute is ambiguous on this point, and thus turns to legislative history and suggests the challengers face an evidentiary burden to prove that non-condensing appliances have such characteristics. Yet as Judge Rao notes, any such evidentiary burden "applies only to the factual question of whetehr a standard will cause a protected product to become available, not to the legal question of what qualifies as a 'performance characteristic.'" As she explains:

The central disagreement turns on the legal question of what counts as a "performance characteristic" under EPCA. The majority largely ducks this question by declaring that EPCA is ambiguous as to the meaning of "performance characteristic" and "utility." Majority Op. 16–18. The majority takes this ambiguity as a license to defer to the Department. But this Loper Bright avoidance is inconsistent with the Supreme Court's directive that a court must "use every tool at [its] disposal to determine the best reading of the statute and resolve the ambiguity." 144 S. Ct. at 2266.

Judge Rao further explains why the Department failed to provide an adequate justification for the rule, but this is a lesser concern that the question of statutory authority.

This rule would seem to have been a good candidate for quick rescission under the Trump Administration's directive that agencies identify and rescind regulations that lack adequate statutory warrant under the best interpretation of the applicable statute. Judge Rao's statutory arguments are more persuasive than those offered by the majority, particularly in a post-Chevron world in which the agency does not receive deference and the best reading of a given statute is supposed to govern. The problem now, however, is that the D.C. Circuit has upheld the regulation as consistent with the the statute.

Given this ruling, were the Department to rescind the rule on these grounds it would face a likely reversal (unless it were able to get further review in the Supreme Court). This means that we may be stuck with this rule. Failing to rescind the rule earlier, or even to ask the D.C. Circuit to delay issuing an opinion so the Administration could review the rule, seems to have been an oversight, and a costly one at that.

Free Speech

Councilman's Threatening Outside Counsel Law Firm into Firing Attorney May Violate First Amendment

"A Nashville city councilman threatened to withdraw business from a law firm,  which served as the city's outside counsel, due to the position one of its attorneys took as the chair of the county election commission on a tax referendum."

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From Monday's decision by Sixth Circuit Chief Judge Jeffrey Sutton, joined by Judge Julia Smith Gibbons, in DeLanis v. Metro. Gov't of Nashville & Davidson County:

A Nashville city councilman threatened to withdraw business from a law firm,  which served as the city's outside counsel, due to the position one of its attorneys took as the chair of the county election commission on a tax referendum. When the attorney declined the law firm's request that he oppose the referendum, the firm fired him. The attorney sued the council member and the law firm for retaliating against his federal free-speech rights, namely his support of the tax-repeal referendum in his capacity as the county election chair….

The law firm is eligible for qualified immunity in view of the government work it performed. And it did not violate any clearly established law. We know of no case in which the First Amendment prohibited a law firm from firing one of its lawyers when the business interests of the firm, including demands from one of its clients, triggered the firing. {The allegations against Baker Donelson present a unique situation not addressed by our cases to date. Whether Baker Donelson acted honorably or not in firing DeLanis, it did not have clear notice that a law firm (or private company) violates the First Amendment by firing an employee when a government client threatens to take its business elsewhere if the employee continues to act adversely to the government. Baker Donelson, for better or worse, sought to protect its client base, not to punish DeLanis for his speech. As DeLanis acknowledges in his complaint, Baker Donelson's business interests drove its conduct. The firm, in his words, "sought to maintain and increase the client revenue it generated" from Nashville at "all times relevant to the claims." We know of no free-speech case that covers this unusual setting, and DeLanis does not identify one himself.} …

{On the other hand, the council member's alleged actions violated clearly established law, and we affirm the district court's denial of his motion to dismiss.} When a public official warns a law firm that the city may pull business from it due to the public-office actions of one of its lawyers, that suffices to deter a person "of ordinary firmness" from exercising his First Amendment rights in that office…. [C]ausing an employee's firing due to his protected speech violates the First Amendment…. Mendes had ample notice that pressuring an employer to fire an employee in retaliation for his protected speech ran afoul of the Free Speech Clause…. DeLanis worked for a private firm, and Mendes caused him to be fired. The reality that DeLanis also served as a public officer does not transform a clearly adverse action into innocent conduct.

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Redressability and Irreparable Harm in the Texas Gerrymandering Case

The Plaintiffs argued the 2021 map was an unconstitutional gerrymander. How could reimposing the 2021 map actually redress their purported injuries?

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The briefing has now concluded in Abbott v. LULAC. Texas's reply brief contends that a stay would not harm the plaintiffs. Here, the District Court ordered that Texas must use the 2021 map--the same map that the plaintiffs previously argued was unconstitutional.

Finally, Plaintiffs fail to demonstrate that a stay would harm them. Plaintiffs contend that allowing the election to be held under the 2025 map would cause them the irreparable harm of being "forced to vote under a racially discriminatory map that violates their constitutional rights." NAACP Resp. 26; MALC Resp. 38–39; Gonzales Resp. 39–40; LULAC Resp. 27; Brooks Resp. 41. But according to Plaintiffs, the preliminary injunction would not prevent this harm because they allege that the 2021 map is also an unconstitutional racial gerrymander: "[T]he Texas Legislature engaged in intentional racial discrimination and racial gerrymandering in the drawing of [CD9, CD18, and CD30 in the 2021 map.]" ECF 983 at 1 (Plaintiff-Intervenors); see also ECF 981 at 4 (NAACP Plaintiffs); ECF 985 at 7 (LULAC Plaintiffs); ECF 975 at 4 (MALC Plaintiffs).

Plaintiffs' newfound embrace of the 2021 map, which they challenged for years of litigation, is explained by their preference for the politics of the 2021 map compared to the politics of the 2025 map. They seek "to transform federal courts into weapons of political warfare that will deliver victories that eluded them in the political arena." Alexander, 602 U.S. at 11 (quotation marks omitted).

Let me unpack this argument.

First, Alexander v. S.C. State Conf. of the NAACP found that when a plaintiff asserts there is a racial gerrymander, the plaintiff will usually have the evidentiary burden to introduce an alternate map that the state could have adopted that would achieve comparable partisanship without a racial gerrymander. The Supreme Court observed that "if a sophisticated plaintiff bringing a racial-gerrymandering claim cannot provide an alternative map, that is most likely because such a map cannot be created." This evidentiary burden make sense. Requiring the plaintiffs to submit an alternative map provides something concrete for the parties and the court to test. In the Texas case, however, the sophisticated plaintiffs did not produce an alternative map. This was likely a strategic choice, and one they should be held to.

Second, because the plaintiffs did not submit an alternative map, the district court was in an awkward spot. Having found a racial gerrymander, the district court had to issue some remedy. The conventional remedy would be to invalidate the maps, and give the Texas legislature the opportunity to draw new maps. But given that the deadline for candidate registration is ongoing, there would never be enough time to go down that route for the 2026 elections. If Purcell has a short fuse, requiring the Governor to call a special session would be impossible. Had the plaintiffs submitted an alternate map, the court could have chosen that remedy. But again, there was no map to adopt. Instead, the District Court reverted to the 2021 map.

Third, the same plaintiffs have spent nearly four years arguing that the 2021 map was an unconstitutional racial gerrymander. The record is replete with page after page alleging racial gerrymandering. The plaintiffs also argued that the 2025 map was an unconstitutional racial gerrymander. The only difference between the maps is that Democrats had more seats under the 2021 map than the 2025 map. This is politics all the way down. The asymmetry is clear: Democrats can challenge Republican maps but Republicans cannot challenge Democratic maps.

Texas framed this turnabout in terms of irreparable harm. The Plaintiffs have already told the court the racial gerrymander in the 2021 map will irreparably harm them. How can it be a viable remedy to then impose the very same map that would inflict irreparable harm?

Let me use an example. Imagine a class of plaintiffs brings a suit against a police department, alleging that a particular pattern or practice adopted in 2021 violates the Fourth Amendment. While the case was pending, the police department adopted a new pattern or practice in 2025 that is also alleged to violate the Fourth Amendment. The Super Bowl is coming to town, and there is some question which police practice will be enforced. The plaintiffs bring a new suit, and seek emergency injunctive relief, but they don't propose what would be a valid practice. The city will soon host the Super Bowl, which entails massive police activity, and there has to be some certainty over which policies should be in place. On the eve of the Super Bowl, could a court enter a preliminary injunction, and order the police department to implement the 2021 policy? I don't think so--especially where the plaintiffs never asked for the 2021 policy to be reimplemented, and the plaintiffs argued to 2021 policy was unconstitutional. I tend to think this order would be vacated by a court of appeals very quickly. Sometimes, the answer may be that in advance of a massive and complex operation, the district court is unable to fashion a remedy out of whole cloth that the plaintiffs did not propose, and indeed previously argued was unconstitutional. It cannot be repeated enough: district court judges are not gods.

An analogy could also be made to the redressability prong of standing law. If the courts are unable to issue a remedy that redresses the plaintiff's injury, then the court lacks Article III standing. I could cite California v. Texas, Brackeen, and Murthy as recent precedents to this effect. Of course the Texas court could have issued a valid remedy, but it chose not to. Indeed, there may be no actual remedy that would redress their harms for purposes of a preliminary injunction. The plaintiffs didn't offer a map, and the court failed to provide one. Enforcing the 2021 maps may have seemed like the most logical, or even the most effective remedy. But it doesn't actually redress the alleged harm. The plaintiffs are still stuck with a racial gerrymander, albeit one that is more favorable to Democrats.

Ultimately, I think the most likely path forward is that the Court grants a stay, notes probable jurisdiction, and hears the case in February. Or the Court could grant a stay, and hold the decision pending Callais.

A colleague asked why I thought Callais, a VRA case, would have any impact on the Texas 14th Amendment case. The amicus brief from America First Legal Foundation speaks to this issue:

The resolution of Callais will likely clarify, if not fundamentally reshape, the legal framework governing Plaintiffs' claims against Texas. The appellants in Callais argue that the Constitution mandates color-blindness, asserting that race-based redistricting, even in the name of Voting Rights Act compliance, is unconstitutional and violates the principle that "[e]liminating racial discrimination means eliminating all of it." Id. at 2 (quoting Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023)). Louisiana contends that the current jurisprudence forces sovereign States into a no-win, goldilocks scenario where they must consider race but "perennially suffer the indignity of … being sued for considering race too much or too little," putting the federal judiciary in the position of having to "pick winners and losers" in this racial calculus. Id. at 2.

Texas is caught in this precise predicament. The majority opinion below invalidates the State's 2025 map, concluding that the Texas Legislature's actions constituted impermissible racial gerrymandering. App.2–3. Texas maintains its actions were driven by permissible partisan objectives. Emergency.Appl.for.Stay.1. As Judge Smith's dissent below aptly explained, this "tension between Section 2 of the Voting Rights Act and racial-gerrymandering jurisprudence" will likely be resolved by Callais. App.173 (Smith, J., dissenting).

Judge Brown's opinion will be untenable if Louisiana prevails in Callais. And I think this will be the case even if Shaw v. Reno is not revisited.

Free Speech

"Spy" vs. "Spy" (+ Piers Morgan, President Biden, and the Iranian Nuclear Weapons Program)

If someone was prosecuted (and later pardoned) for being an unregistered foreign agent for Iran, is it defamatory to say he was prosecuted for "spying"?

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From today's order in Afrasiabi v. Morgan by Judge Brian Murphy (D. Mass.):

This case stems from an appearance made by Plaintiff on Defendant Piers Morgan's YouTube program, "Piers Morgan Uncensored." On that program, Morgan introduced Plaintiff by stating that he was "arrested in the US for alleged spying before being pardoned by Joe Biden." Plaintiff and Morgan disputed the accuracy of that statement live during the program, and Plaintiff disputed the statement's accuracy with Morgan's team afterward. Morgan or his team subsequently republished variations of Morgan's statements on social media….

The Court takes notice of the indictment brought against Plaintiff on January 19, 2021, in the Eastern District of New York, charging Plaintiff with violations of the Foreign Agents Registration Act ("FARA"). In the indictment, Plaintiff is alleged as having operated as an undisclosed agent of the Iranian government while engaging in political acts within the United States, for example, by drafting a Congressman's letter to the President of the United States regarding negotiations over Iranian nuclear weapons and enrichment programs.

The Court notes, as did Defendant Morgan, that these charges were dismissed upon the issuance of a presidential pardon. The Court further notes a hearing transcript from that criminal case, provided by Plaintiff, wherein Judge Korman, in the context of a discussion about why discovery was taking so long, stated: "You know, as far as I understand, this is not a case involving spying for Iran."

Notwithstanding, the Court agrees with Defendants that Plaintiffs' defamation claim is untenable as a matter of law. Massachusetts law immunizes from liability "fair and accurate" statements that report on official actions. "To qualify as 'fair and accurate' reporting, an article need only give a 'rough-and-ready summary' that was 'substantially correct.'" … As Judge Burroughs recently observed in another case brought by Plaintiff against a different media company, "[t]he word 'spy' has multiple definitions."

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Free Speech

Journal of Free Speech Law: Publish Your Article in a Few Months

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I'd like to again solicit submissions to our peer-reviewed Journal of Free Speech Law, and mention one of our great advantages: We can publish quickly (by the standards of academic journals), if that's what you'd like. Our most recent articles, for instance, were published 3 to 5 months from when we received them, and that includes the time stemming from the authors revising their articles in various ways (which we certainly allow, if the author is willing to take the time). We have published articles as quickly as 2½ months after we received them, when the author has wanted to move fast.

To my knowledge, many top student-edited journals are shut down for the Winter, and won't review manuscripts until February. That means the manuscripts probably wouldn't be published until the end of 2026, or even later. But if you submit to us now, and want to publish quickly, you can have the article out by February or March.

There are other advantages as well: We offer anonymized feedback from the reviewers whether the article is accepted or rejected; many authors have told us this was very helpful. And when we accept article, it's edited by one of our Executive Editors (Jane Bambauer, Ash Bhagwat, or me), and many authors have likewise told us that the edits, by experienced free speech scholars, are quite useful.

Some more details: The journal is now nearly five years old, and has published over 100 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.) The articles have been cited so far in 13 court cases, over 400 articles, and over 100 briefs. And note that all the articles have only had four years or less to attract these citations.

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

All submissions must be exclusive to us, but, again, you'll have an answer within 14 days (though perhaps up to 21 days if it's over Thanksgiving, Christmas, or New Year's), so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:

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Free Speech

Journal of Free Speech Law: "Inevitable Errors: Defamation by Hallucination in AI Reasoning Models," by Lyrissa Lidsky & Andrew Daves

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This new article is here. The Introduction:

Artificial general intelligence is "probably the greatest threat to the continued existence of humanity." Or so claims OpenAI's Chief Executive Officer Sam Altman. In a seeming paradox, OpenAI defines its mission as ensuring "that artificial general intelligence—AI systems that are generally smarter than humans—benefits all of humanity."

Whether artificial general intelligence becomes a universal boon or an existential threat—or both—there is general agreement concerning its revolutionary potential. Indeed, Microsoft founder Bill Gates has called it "as fundamental an advance as the personal computer or the internet," and Google CEO Sundar Pichai has predicted that it will "bring about a more profound shift in human life than electricity or Promethean fire."

Thus far, AI systems are not generally smarter than humans. Not yet. Large Language Models (LLMs), however, are advancing at a startling pace. LLMs use artificial intelligence to synthesize massive amounts of textual data and then predict text and generate responses to users in "natural" human language. On a scale measuring the progress of LLMs toward general intelligence, OpenAI's flagship model, GPT-3 scored zero percent in 2020. Just five years later, OpenAI's o3-preview scored between 75% and 88%. Meanwhile, OpenAI competitors such as Anthropic, Google, and DeepSeek are likewise racing to deliver on the promise of "systems that can think and act rationally in ways that mirror human behavior and intelligence."

Even as LLM models make progress toward general intelligence, there are already AI systems that have exceeded human performance on narrow, clearly scoped tasks. For example, chess engines have been performing at superhuman levels for years, and AI models can now help detect breast cancer far earlier than human experts—and the models continue to improve. Meanwhile, OpenAI's o1 reasoning model has an LSAT score higher than the median student admitted to the law schools at Harvard, Yale, and Stanford.

As AI systems begin to mirror human thought, it pays to remember the words of Seneca: "[N]ot all mirrors stick to the truth." LLMs now regularly create outputs that appear to be the product of independent thought, but LLMs are essentially prediction engines that "answer" prompts (or inputs) by calculating which words are most likely to come next and then assembling them into an output. LLMs, as such, do not predict truth but instead predict probabilities. In doing so, they sometimes replicate false information common in their training data.

They also inevitably produce "plausible yet false outputs," commonly referred to as hallucinations. An LLM may produce fake legal documents, non-existent academic citations, or false biographical data. Although LLM producers and users can employ various tactics to reduce hallucinations, these errors cannot be eliminated. And they are quite prevalent. In fact, data gathered from multiple chatbots suggests that hallucinations occur in 3% to 10% of outputs, leading one legal scholar to dub LLMs "Large Libel Models."

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Free Speech

Trump Media Group's Libel Lawsuit Over Guardian's Allegations of Federal Criminal Investigation Dismissed

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From yesterday's decision by Florida trial court judge Hunter Carroll in Trump Media & Tech. Group Corp. v. Guardian News & Media Ltd.:

This action arises from the publication of several articles reporting on a federal criminal investigation related to TMTG's receipt of two payments totaling $8 million. On March 15 and March 17, 2023, the Guardian published two articles stating federal prosecutors in New York were conducting a money laundering investigation related to the payments, which were wired through the Caribbean from Paxum Bank and ES Family Trust, entities with ties to an ally of Russian president Vladimir Putin and a history of providing banking services to the sex worker industry. The articles report [TMTG co-founder Will] Wilkerson's statements that the origins of the loans caused alarm at TMTG and TMTG's then CFO weighed returning the money, but the money was ultimately not returned….

The Guardian articles were reported on by others. On March 15 and March 22, Penske published two articles in Variety that reported federal prosecutors investigated TMTG for potential money laundering violations related to the payments. On March 18, [Defendant Chris] Anderson published an article in the Sarasota Herald-Tribune that stated federal prosecutors were reportedly investigating the payments to TMTG. The Variety articles and the Herald-Tribune article explicitly reference and provide direct links to the Guardian articles as the source for the statements at issue.

TMTG alleges the articles published by the Defendants are false and defamatory because TMTG "is not, and never was, under investigation for money laundering," and neither TMTG nor its executives have "been the focus of any investigation." …

Count 1 purports to state a claim for defamation and defamation per se based on seven allegedly false statements published in the Guardian articles:

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Politics

Upcoming Speaking Engagements in Mexico and Israel

I will be giving multiple talks in these two countries, in December.

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This December, I will be doing multiple speaking engagements in Mexico and Israel. In the latter country, I will be serving as a visiting professor at the law faculty at Uriel Reichman University (the former IDC Herzliya). Unless otherwise noted, these events are open to the public.

I am potentially open to doing additional speaking engagements in Israel during my time there (Dec. 14-26).

Dec. 3, 12-1:30 PM, Guadalajara International Book Fair (FIL), Barcelo Hotel, Guadalajara, Mexico: "Free to Move: Foot Voting, Migration, and Political Freedom" (tentative title), Panel on Migration in the 21st Century. Other panel participants will be Eileen Truax (journalist covering immigration issues), and Christopher Dominguez. More information about the FIL book fair available here.

Dec. 4, 3:15-4:30 PM, Law Faculty, University of Monterrey, Rm. A6-206, Monterrey, Mexico, : "Political Ignorance and Constitutional Design." This event is likely limited to University of Monterrey students and faculty. But I may be able to get a few other people admitted upon request.

Dec. 5, 3:15-4:30 PM, School of Social Sciences and Government, University of Monterrey, A6-106, Monterrey, Mexico: "Democracy and Political Ignorance." This event is likely limited to University of Monterrey students and faculty. But I may be able to get a few other people admitted upon request.

Dec. 15, 6:30-8:00 PM, Honors Workshop, Law Faculty, Uriel Reichman University, Herzliya, Israel: "The Presumptive Case for Organ Markets." This event is likely to be limited to participants in the Honors Workshop and Uriel Reichman University faculty. But I may be able to get a few other people admitted upon request.

Dec. 16, 4-5:30 PM, Safra Center for Ethics, Buchman Faculty of Law, Elga Cegla Hall, Room 21, Tel Aviv University, Tel Aviv, Israel: "Not Everything is an Emergency: The Case for Strong Judicial Review of the Exercise of Emergency Powers."

Religion and the Law

University's Apparent Concealment of Real Reasons for Non-Renewal of Adjunct Professor's Contract Suspended Statute of Limitations

"The [eventually released personnel] records contain no negative performance reviews, but they do contain three anonymous complaints. Those complaints accused Grossenbach of 'creat[ing] a hostile environment for transgender and LGBTQ students' in connection with his SaveCFSD activities [allegedly referring solely to Grossenbach's outside-class political activity -EV], among other things."

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From Friday's Report and Recommendation by Magistrate Judge Michael Ambri (D. Ariz.) in Grossenbach v. Arizona Bd. of Regents:

The plaintiff in this action, Daniel Grossenbach, founded an organization named SaveCFSD, through which he advocates "for truth, trust, and transparency within Catalina Foothills School District 16 ['CFSD']." He founded this organization because he believes the CFSD is acting contrary to his "sincerely held religious beliefs" by "secretly surveying children about their gender and sexuality, pushing radical gender ideologies upon those students, and unconscionably and intentionally keeping that information from parents."

Grossenbach was employed as an adjunct professor at the University of Arizona. On November 30, 2023, he was informed that his teaching contract would not be renewed. Grossenbach believes that his employment was discontinued because the University received complaints about his advocacy with SaveCFSD.

Grossenbach sued on Aug. 22, 2025, and defendants argued (among other things) that his Title VII religious discrimination claim was brought too late. No, the Magistrate Judge concluded:

[I]n Arizona a prospective plaintiff must file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory employment action.

In this case, Grossenbach was informed on November 30, 2023, that his employment contract would not be renewed. According to the defendants, his 300 days started on that date and expired on September 25, 2024. They assert that he filed his ACRD (Arizona Civil Rights Division) charge on January 9, 2025, and his EEOC (Equal Employment Opportunity Commission) charge on January 22, 2025. Accordingly, the defendants argue that the claim must be dismissed for failure to properly exhaust administrative remedies.

The court does not agree. Assuming without deciding that Grossenbach's Title VII charge accrued on November 30, 2023, when he was told his contract would not be renewed, the start of the limitation period was postponed under the doctrines of estoppel and equitable tolling.

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Religion and the Law

No Emergency Order Allowing Worship Service in Possibly Unsafe Barn

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From Vaughn v. Harrison County, decided Friday by Judge Taylor McNeel (S.D. Miss.):

Yesterday, Rev. John Vaughn filed this lawsuit seeking to have fifty people attend a worship service in a barn on his private property. Vaughn is proceeding pro se. He has scheduled the worship service for some time tomorrow, but he acknowledges that Harrison County has told him he cannot have the fifty people in the barn because Harrison County believes that a gathering at the property "would constitute a very serious life safety situation."

Vaughn has filed a Motion for a Temporary Restraining Order asking this Court to order Harrison County to allow the fifty people into the barn. But he does not want Harrison County to have notice of this motion or to have the opportunity to respond. Instead, he wants this Court to enter an ex parte Order without giving Harrison County the chance to explain their position. But this is a litigation strategy created by Vaughn's own making. Instead, Harrison County needs to be served with process, given time to respond, and then an evidentiary hearing can be set.

Vaughn's motion is denied for a number of reasons. First, the primary purpose of a temporary restraining order is to maintain the status quo. But Vaughn is seeking to change it—not maintain it. Harrison County told him about seven months ago to not have fifty people in this barn. Vaughn could have challenged that action then.

Second, Vaughn does not establish a substantial likelihood of success on the merits. Vaughn does not really present evidence or on-point case law to support his assertions.

Third, Vaughn does not show a substantial threat of irreparable injury. Vaughn recognizes that the congregation's primary church building is available for the worship service.

Fourth, the harm that will result if the temporary restraining order is granted potentially outweighs Vaughn's injury. If the Court were to grant the temporary restraining order, these people could be injured while congregating at Vaughn's barn.

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Republican Congressman's Staffer Prosecuted for Alleging Faking Attack on Herself, Including "Trump Whore" Written on Her Stomach

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From the Justice Department's press release Wednesday:

Natalie Greene, 26, of Ocean City was charged with one count of conspiracy to convey false statements and hoaxes and one count of making false statements to federal law enforcement. On November 19, 2025, Greene made her initial appearance in federal court before U.S. Magistrate Judge Elizabeth A. Pascal. Greene was released on a $200,000 unsecured bond and additional conditions, as set by the Court.

According to statements made in court and documents filed in the case:

Late at night on July 23, 2025, Greene's co-conspirator called 911 and reported that she and Greene had been attacked by three men when they were out walking on a trail at a nature preserve in Egg Harbor Township. According to the co-conspirator, during the attack, the men had called Greene by name and had specifically referenced her employment with Federal Official 1, an official whose identity is known to the Government.

When law enforcement officers located Greene, she was lying in a wooded area just off the trail, with her hands and feet bound together with black zip ties. Greene's shirt was pulled over her head and was also tied with a black zip tie. Greene had numerous lacerations on her face, neck, upper chest, and shoulder. The words "TRUMP WHORE" were written on her stomach and the words "[Federal Official 1] IS RACIST" were written on her back. [Press accounts state that the words written were that Van Drew is racist. -EV] Greene was crying and yelling that one of her alleged attackers had a gun.

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