2/5/1793: Chisholm v. Georgia argued.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
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The Upshot Of The Wynn and Boasberg Complaints: The Code of Conduct Cannot Be Used To Obtain Discovery
The federal judiciary will make no inquiries about whether a judge may have violated the Code of Conduct. The whole burden of proof rests entirely on the complainant.
Over the past year, there have been high-profile misconduct complaints filed against two judges that were dismissed on similar grounds.
In 2024, Judge James Wynn of the Fourth Circuit announced he would take senior status, but withdrew that announcement after Trump won. The obvious rationale for his decision was politics. But the Second Circuit Judicial Council refused to inquire into his motives. As I explained in my Civitas column:
In October 2025, the misconduct complaints against Judge Wynn, and the other two judges were dismissed. Chief Judge Debra Livingston wrote the opinion in each case. Livingston found "there is no genuine issue of fact." She added that whether "the Judge considered the outcome of the election as one factor influencing his decision to withdraw the January 5 letter" was "a factual issue I need not resolve." Had Chief Judge Livingston simply asked Judge Wynn why he rescinded his senior status, the judge could have defended himself with some legitimate reason. But he didn't offer such a reason, because there is no plausible, legitimate reason. Regrettably, there is a brazen double standard for brazenly partisan judges. The federal courts routinely scrutinized President Trump's motivations for improper purposes. But when it comes to rooting out judicial misconduct, judges hide behind a veil of ignorance.
In other words, it falls to the complainant to learn all possible facts--even when a judge takes some action in private, where it is impossible to learn the facts. The federal judiciary will not permit any discovery.
There was a similar result with the complaint that the Department of Justice filed against Judge Boasberg. Chief Judge Sutton's opinion lays out this standard of review:
After conducting an initial review, the chief judge of a circuit may dismiss a complaint of judicial misconduct if he concludes: (A) that the claimed conduct, even if it occurred, "is not prejudicial to the effective and expeditious administration of the business of the courts"; (B) that the complaint "is directly related to the merits of a decision or procedural ruling"; (C) that the complaint is "frivolous" because the charges are wholly unsupported; or (D) that the complaint "lack[s] sufficient evidence to raise an inference that misconduct has occurred." Judicial-Conduct Rule 11(c)(1)(A)–(D); see 28 U.S.C. § 352(a), (b).
Based on this standard, Judge Sutton finds that dismissal is warranted without any further investigation:
The primary theory of the complaint is that the judge made an improper statement at the Judicial Conference on March 11 about the risk that the Administration would not comply with federal judicial rulings. This claim fails to establish a cognizable basis of misconduct. First, it lacks "sufficient evidence" to support the allegations. Judicial-Conduct Rule 11(c)(1)(D).
Judge Sutton ultimately finds that even if Judge Boasberg made certain statements at the Judicial Conference, the statement was not "prejudicial to the effective and expeditious administration of the business of the courts." Judicial-Conduct Rule 11(c)(1)(A).
As co-blogger Jon Adler noted in an addendum, DOJ does not seem to have filed a petition to review the dismissal.
But the Center to Advance Security in America (CASA) has appealed the dismissal of its complaint (Complaint No. 06-25-90174). I do not have a copy of Chief Judge Sutton's opinion dismissing this complaint, which was dated December 19, 2025. CASA has addressed several legal questions in its petition for review.
First, the petition argues that Judge Sutton improperly shifted the burden of proof to the plaintiffs:
Here, the statute demonstrates that the facts are "established through investigation." It is not the burden of the Complainant to prove the facts. Rather, the standard is whether the allegations are capable of being established. They are. Each of the facts were cited with sources such as congressionally released records, court records, or media stories. The facts are verifiable through an investigation.
Despite the evidentiary burden being placed on the judiciary's investigative process, the Memorandum and Order, on numerous occasions, implies it was the Complainant's obligation.
Second, the petition charges that standards in the Guide to Judiciary Policy cannot add additional requirements above and beyond the statute:
It does so citing the Judicial-Conduct Rule 11. But a "Guide to Judiciary Policy" cannot supersede the statute itself. The interpretation of this guide must not mean that the Complainant must produce conclusive evidence. Rather, it must mean that the allegations must raise an inference that misconduct has occurred. The word "evidence," therefore, would describe "evidence" that raises an inference, not dispositive evidence. This interpretation must be the correct one for it to remain consistent with the statutes. That minimal threshold was met by way of Congressional records, court records, and media articles.
I do not think the courts get Auer deference over their own guidance documents.
Third, the petition complains that Judge Sutton imposed a "clear and convincing" standard, which does not appear in the statute:
Later, the Memorandum and Order applies a "clear and convincing evidence" standard, which is nowhere in the statute.25 The case it cites for that standard limits that evidentiary standard to cases about "a judge not following prevailing law,"26 which, as described above, this Complaint is not about.
Putting aside the peculiar issues concerning Judge Boasberg, there seem to be some important question concerning the rules of evidence, burdens of proof, and the interaction between the statute and the Guide to Judiciary Policy.
Heritage VP of Development Clarifies That "Declaration of Independence and Constitution are Foundational to American Exceptionalism"
She did so after she shared an article describing me and Adam Mossoff as "malcontent[s]" who "slowly slither[ed] out the door."
The February 2026 edition of Chronicles Magazine has an article by John Howting titled "Heritage Is Better-Off With Kevin Roberts—and Without the Malcontents." In case you had to guess, I am one of those malcontents. I was inclined to ignore this contribution, until I saw that Genevieve Wood, the Vice President of Development at the Heritage Foundation, tweeted a link to the article. Still, I thought it better to just let the issue go. That was, until Wood felt compelled to issue a clarification:
For those on this platform who don't know me, I want to be clear - I believe the Declaration of Independence and Constitution are foundational to American exceptionalism. I should have stated that before posting the article below which could suggest otherwise. Consider this a clarification and my bad.
Whenever I hear the phrase "My bad," I think of Cher Horowitz from Clueless. Maybe not the best pop culture reference for this post.
Now, I think I have to explain why an article about me required a Heritage VP to reaffirm a commitment to the Declaration and the Constitution.
Let's start with the original article. And for those of you who aren't familiar with Chronicles Magazine, Pat Buchanan called it "The toughest, best-written, and most insightful journal in America." And if you are not familiar with John Howting, in November, he described Tucker Carlson's interview with Nick Fuentes as a "conversation with a fellow native-born American about what is in America's national interests."
The article begins by noting that, according to Heritage, thirty employees left the organization. (I think the number is higher, but I'll table that count for now.)
As each malcontent slowly slithers out the door—once every couple of weeks, it seems, in order to strategically drag the drama out for as long as possible—they decry Heritage Foundation President Kevin Roberts for abandoning conservative principles.
And who are the only two "malcontents" mentioned by name that "slither[ed] out the door"? Josh Blackman and Adam Mossoff. And wouldn't you know it, we are both Jewish and Zionists. People who keep insisting that they are not anti-semitic have this knack of fixating on Jews, often with reptilian language. I wonder if you have to slither into a venomous coalition? Let's just chalk it up to another cosmic coincidence.
Howting quotes from my Wall Street Journal op-ed:
Consider Josh Blackman, former editor of The Heritage Guide to the Constitution, who resigned in late December. He writes in The Wall Street Journal that during Roberts' tenure, Heritage drifted from its conservative principles: "free enterprise, limited government, individual freedom, traditional American values, and a strong national defense."
Where did I get these five planks from? I didn't make them up. They are the five planks of Heritage's mission statement.
Heritage's mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.
My op-ed even links to the mission statement:
For more than half a century, the Heritage Foundation's work has rested on five ideological pillars listed in its mission statement: "free enterprise, limited government, individual freedom, traditional American values, and a strong national defense."
Yet, Howting somehow takes umbrage at how I accurately quoted Heritage's own mission statement.
The first three of those principles are Conservative Inc.talking points in defense of "capitalism." In other words, he is deeply concerned—so concerned that it comprises the first three items on his list—about preserving tools for earning money. If he were a carpenter, he'd be rushing into the fire to save his toolbox.
But that charge is small potatos. Howting goes on trivialize the relevance of the Declaration of Independence and the Constitution. Mind you, I do not even mention the Declaration in my op-ed and the Constitution is mentioned in passing.
The fourth—"traditional American values"—means the Declaration of Independence and the Constitution. The Declaration is an ordinance of secession from the British Empire, and the Constitution is an old list of laws and political compromises. This is akin to running into a fire to grab a drawer full of old legal documents.
The Declaration is the greatest statement of governance in the history of the world. Do I really need to state that self-evident truth in our 250th year of independence? But to Howting, it is simply just an "ordinance of secession." Basically a statement announcing a breach of contract. Which self-evident truth does Howting take exception with? And the Constitution is "old list of laws and political compromises." Our foundational law, which even progressives pretend to revere, is cast away as a dusty old document.
Chronicles Magazine is "dedicated to defending and advancing the philosophical and spiritual foundations of Western Civilization." I've learned that the phrase "Western Civilization" no longer refers to the Constitution, the Declaration, and the Anglo-American legal tradition. No, this approach would burn down our entire liberal order, and create some sort of new illiberal order that perhaps resembles a theocracy. There is no need for "old list of laws." Keep that in mind the next time you hear the phrase "Western Civilization."
If you read on, Howting attacks Adam Mossoff's education, and says he does not understand Aristotle:
Court Dismisses Trump Administration Effort to Block Michigan Climate Lawsuit
The Department of Justice failed to demonstrate that the court had jurisdiction to hear the (premature) claims.
The Trump Administration has taken a hard line against state climate policies, particularly efforts by states and localities to impose liability on fossil fuel companies for their role in increasing atmospheric levels of greenhouse gases. An April 2025 Executive Order instructed the Department of Justice and other agencies to intervene to block or obstruct such state-level initiatives.
Pursuant to the Executive Order, the Justice Department filed suit to prevent Michigan from filing suit against fossil fuel companies, as other states and some local jurisdictions have. As you might have anticipated, this suit had the problem of trying to preempt a lawsuit that has yet to be filed. Thus it should be unsurprising that United States v. Michigan has been dismissed on jurisdictional grounds, with the judge finding that the Justice Department failed to demonstrate ripeness or standing.
The Justice Department attempted to argue that any suit Michigan could consider fiing against fossil fuel companies is preempted by federal law--but that claim is simply false (for reasons I've discussed in prior posts, such as those listed here). Tort litigation may be a bad way to try and address the problem of climate change, but that hardly means such suits are preempted by federal law, let alone that the federal government can rush to court to block a lawsuit that has not even been filed, nor does it mean that the federal government has standing to ask a federal court to preemptively intervene when a state is considering whether to file suit against private companies in state court.
Like it or not, Congress has never enacted legislation to preempt state litigation or legislation targeting fossil fuel companies or greenhouse gas emissions. If the Trump Administration and fossil fuel companies wish to preempt such efforts, they would be better advised to focus their efforts on encouraging Congress to act instead of filing meritless lawsuits like this one.
Libel by Implication: When Is Half the Truth a Falsehood?
The Alexis Wilkins' (FBI Director's Girlfriend's) Libel by Implication Suit Can Go Forward post reminded me of one of my favorite cases, Memphis Pub. Co. v. Nichols (Tenn. 1978). The Memphis Press-Scimitar (what a great newspaper name) published the following article that mentioned Mrs. Ruth Ann Nichols:
Please think briefly about the story, and then click on the MORE link below to learn what the court decided.
Judicial Misconduct Complaint Against Judge Boasberg Dismissed
Judge Sutton concludes there was not much to the complaint submitted by the Department of Justice.
On July 29, the Department of Justice filed a complaint against district court Judge James Boasberg, alleging that the Judge's comments to the Judicial Conference suggesting he was concerned that the Trump Administration might disobey district court orders violated multiple Canons of the Code of Conduct for United States Judges.
To avoid potential conflicts within the federal courts in D.C. (where Boasberg sits), the complaint was transferred to the Judicial Council of the U.S. Court of Appeals for the Sixth Circuit.
In December, Chief Judge Jeffrey Sutton of the Sixth Circuit dismissed the complaint, and the order of dismissal was released this week.
Judge Sutton's memorandum and order first outlines the potential bases for dismissal:
After conducting an initial review, the chief judge of a circuit may dismiss a complaint of judicial misconduct if he concludes: (A) that the claimed conduct, even if it occurred, "is not prejudicial to the effective and expeditious administration of the business of the courts"; (B) that the complaint "is directly related to the merits of a decision or procedural ruling"; (C) that the complaint is "frivolous" because the charges are wholly unsupported; or (D) that the complaint "lack[s] sufficient evidence to raise an inference that misconduct has occurred." Judicial-Conduct Rule 11(c)(1)(A)–(D); see 28 U.S.C. § 352(a), (b).
This complaint warrants dismissal.
On the substance of the complaint, Chief Judge Sutton writes:
Alexis Wilkins' (FBI Director's Girlfriend's) Libel by Implication Suit Can Go Forward
From Wilkins v. Schaffer, decided yesterday by Judge Donald Middlebrooks (S.D. Fla.):
Plaintiff Alexis Wilkins has lodged a single defamation by implication claim against Defendant Elijah Schaffer, political commentator, comedian, and podcast host whose shows mix politics and current events, with a comedic, satirical style.
Plaintiff's claim is centered on an X-post drafted by the Defendant. The post at issue is caption-less but contains a photograph of Plaintiff alongside her significant other, Federal Bureau of Investigations (FBI) Director Kashyap "Kash" Patel. The post also "quotes" a distinct post, which in pertinent part, states that "Mossad sent female operatives deep into Iran-seducing top officials, infiltrating government surveillance networks, and carrying out sabotage missions."
In essence, Plaintiff argues that this post insinuates and spreads the false narrative that Ms. Wilkins is "an Israeli Mossad agent, spy, or 'honeypot,' who is only in a relationship with Kash Patel to spy on and manipulate the United States government." This insinuation is the core of Plaintiff's claim for defamation by implication….
Fifth Circuit to Hear Oral Argument on the Victims' Families' Challenge to the Dismissal of the Boeing Criminal Case
I hope to convince the Fifth Circuit to fully protect the families' rights under the Crime Victims' RIghts Act.
Tomorrow I will be arguing in the Fifth Circuit for 31 families whose relatives were killed in the crashes of two Boeing 737 MAX aircraft. I have filed two Crime Victims' Rights Act (CVRA) petitions with the Circuit, asking it to reverse District Judge Reed O'Connor's approval of the Justice Department's motion to dismiss its criminal conspiracy case against Boeing. The petitions explain that the Department violated the CVRA by not reasonably conferring with the families about its dismissal plans—and by concealing a deferred prosecution agreement (DPA) from the families in the initial phases of the case. The petitions also argue that Judge O'Connor failed to fully assess whether dismissing the case was in the "public interest." In this post, I set out the three main arguments I will be presenting, and attach the relevant filings (from both sides) for those who are interested.
I've blogged about the Boeing criminal case a number of times before, including here, here, and here. In a nutshell, Boeing lied to the FAA about the safety of its 737 MAX aircraft. The Justice Department charged Boeing with conspiracy for these lies, but then immediately entered into a DPA to resolve the criminal case. In subsequent litigation, the families proved that the 346 passengers and crew on board the two doomed 737 MAX flights were "crime victims" under the CVRA—they had been directly and proximately harmed by Boeing crime. This makes Boeing's conspiracy crime the "deadliest corporate crime in U.S. history," as Judge O'Connor described it.
In the most recent proceedings, the Justice Department moved to dismiss its earlier-filed charge against Boeing in favor of resolution through a non-prosecution agreement (NPA). Judge O'Connor of the Northern District of Texas granted the Justice Department's motion. In his order, Judge O'Connor essentially agreed with many of the factual objections that I have made for the families who lost loved ones because of Boeing's crime. But, reluctantly, Judge O'Connor dismissed the charge, concluding that he lacked a legal basis for blocking the Department's ill-conceived non-prosecution plan.
As authorized by the CVRA, I have filed two petitions (found here and here) seeking to overturn Judge O'Connor ruling. DOJ has responded, as has Boeing. My reply brief sets out the three main arguments for reversing the Judge O'Connor, which the Fifth Circuit will consider tomorrow: Read More
No Qualified Immunity for Arrest over "Fuck Trump" and "Fuck Biden" Flags
From Sheets v. Lipker, decided Monday by Judge Kyle Dudek (M.D. Fla.):
This case is about words—specifically, a four-letter expletive that has vexed legal authorities and amused teenagers for generations. Plaintiff Andrew Sheets, proceeding pro se, alleges that Officer David Joseph Lipker violated his First Amendment rights by citing him for displaying signs bearing the word "Fuck" in a public place….
Because this case is before the Court on a motion to dismiss, we accept the factual allegations in the complaint as true. Back in 2021, Sheets stood on a public sidewalk in Punta Gorda. He was there to protest. To make his point, he displayed two flags: one reading "Fuck Trump" and the other "Fuck Biden." He also wore a shirt emblazoned with the phrase "Fuck Policing 4 Profit."
Officer David Joseph Lipker approached Sheets and issued him a citation for violating City Ordinance 26-11.5(z), which prohibited the public display of obscene signs. The citation was allegedly issued because of the language Sheets displayed, and Defendants do not contend otherwise. Lipker then ordered Sheets to leave the sidewalk. Sheets complied, packed up his flags, and left….
Today in Supreme Court History: February 4, 1824
2/4/1824: Gibbons v. Ogden argued.
Open Thread
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Secretary Noem Takes it On The Chin
It's been a difficult few weeks for DHS Secretary Noem
From Judge Ana Reyes' opinion in Miot et al. v. Trump et al. (D.D.C.), a case challenging DHS' suspension of the TPS (Temporary Protected Status) program for Haitians in the U.S., on the grounds that DHS Secretary Noem "preordained her termination decision and did so because of hostility to nonwhite immigrants." [The court agreed with the challengers that they were likely to succeed on their claim, and granted their motion to stay the DHS' action].
It's pretty powerful stuff.
On December 2, 1783, then-Commander-in-Chief George Washington penned: "America is open to receive not only the Opulent & respected Stranger, but the oppressed & persecuted of all Nations & Religions." More than two centuries later, Congress reaffirmed President Washington's vision by establishing the Temporary Protected Status (TPS) program. See 8 U.S.C. § 1254a (TPS statute). It provides humanitarian relief to foreign nationals in the United States who come from disaster-stricken countries. It also brings in substantial revenue, with TPS holders generating $5.2 billion in taxes annually.
Department of Homeland Security (DHS) Secretary Kristi Noem has a different take. [From her posting on X:
"I just met with the President. I am recommending a full travel ban on every damn country that's been flooding our nation with killers, leeches, and entitlement junkies. . . . WE DON'T WANT THEM. NOT ONE."
After a fairly exhaustive review of the facts and the relevant law - 83 pages worth - Judge Reyes writes:
"There is an old adage among lawyers. If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither, pound the table. Secretary Noem, the record to-date shows, does not have the facts on her side—or at least has ignored them. Does not have the law on her side—or at least has ignored it. Having neither and bringing the adage into the 21st century, she pounds X (f/k/a Twitter).
Kristi Noem has a First Amendment right to call immigrants killers, leeches, entitlement junkies, and any other inapt name she wants. Secretary Noem, however, is constrained by both our Constitution and the APA to apply faithfully the facts to the law in implementing the TPS program. The record to-date shows she has yet to do that.
By accompanying Order, the Court GRANTS Plaintiffs' Renewed Motion for a Stay under 5 U.S.C. § 705.
What We Learned From Jodi Kantor's Latest Expose About The SCOTUS NDA
The Chief is now requiring all employees (but likely not the Justices) to sign Non-Disclosure Agreements, which do not seem to be working.
In September 2024, Jodi Kantor published a stunning set of leaks concerning Trump v. United States. At the time, I wrote that the Trump leaks were "far worse than the Dobbs leak." Apparently, Chief Justice Roberts was also bothered.
Two months later, according to Kantor's latest report, Roberts required all Court employees (but apparently not the Justices) to sign non-disclosure agreements. Indeed, this mandate came almost halfway into the clerkship. It is customary to require employees to sign NDAs before they learn confidential information, but the Chief switched course midstream. Presumably, the things learned before signing that document were not covered by the agreement.
This piece is the latest in Kantor's string of articles about inside Court deliberations. Her past installments came in December 2023 about Dobbs, June 2024 about Bruen, September 2024 about Trump immunity, December 2024 about SCOTUS ethics, June 2025 about Justice Barrett, and November 2025 about the liberal Justices. As the dates reveal, Kantor has continued to publish articles after the NDAs were signed, so they do not see to have been entirely effective--unless the people causing the leaks were not subject to the NDA. As Kantor said in a recent interview, she is watching them. Query whether the NDA prohibited the disclosure of the existence of the NDA? At least the Chief is trying something.
Let's walk through what we learned.
First, Kantor alludes to her sourcing:
Its employees have long been expected to stay silent about what they witness behind the scenes. But starting that autumn, in a move that has not been previously reported, the chief justice converted what was once a norm into a formal contract, according to five people familiar with the shift.
Five people is a very precise number. It is not clear if these people were subject to the NDA, or were even employees at the Court. This could be five people who learned of the NDAs second-hand. Of course, by using intermediaries, the leakers limit potential liability under the NDA.
Second, we learn about the timing of the NDAs.
Roberts summoned "employees" to an all-hands meeting in the grand conference room. Perhaps standing up the portrait of Chief Justice Marshall, Roberts asked the gathered employees to sign an NDA. I suspects this included all of the clerks. Did Roberts give any notice they would have to sign? Did they have to sign on the spot? If they declined to sign, were they terminated? Could they consult counsel? So many questions.
In September 2024, The Times published an article describing how the chief justice pushed to grant President Trump broad immunity from prosecution. The article quoted from confidential memos by the chief justice and other members of the court who applauded his reasoning. Weeks later, the chief justice abruptly introduced the nondisclosure agreements, after the term had begun.
In November of 2024, two weeks after voters returned President Donald Trump to office, Chief Justice John G. Roberts Jr. summoned employees of the U.S. Supreme Court for an unusual announcement. Facing them in a grand conference room beneath ornate chandeliers, he requested they each sign a nondisclosure agreement promising to keep the court's inner workings secret.
The 2024 election was held on November 5. Two weeks later would have been the week of November 18. The Court released orders on November 18 (no grants), and held a conference on November 22. If I had to guess, this gathering was held late Friday afternoon after the conference, right before the holiday. Did Roberts ask his colleague to vote on whether to require NDAs? Does the Rule of 5 apply here, or did the vote have to be unanimous? Or did Roberts simply tell his colleagues what was coming? What a nice way to begin Thanksgiving break.
This is the sort of practice that employment lawyers detest: forcing employees to sign onerous agreements without any time to consider it--especially right before a major holiday. During the Dobbs investigation, Joan Biskupic reported that clerks were ordered to turn over their phones. Apparently the conservative clerks gladly handed over their devices while some of the liberal clerks lawyered up. Did all of the clerks actually sign the NDA, five months into their employment? If they declined, would they be fired? Would the Chief even have the power to fire someone else's law clerk?
Third, we do not learn much about the contents of the NDA:
The New York Times has not reviewed the new agreements. But people familiar with them said they appeared to be more forceful and understood them to threaten legal action if an employee revealed confidential information. Clerks and members of the court's support staff signed them in 2024, and new arrivals have continued to do so, the people said.
Who drafted the NDA? Did the Court do it in-house, or did they retain outside counsel? The policy was prepared "abruptly" so I doubt there was much time to seek counsel. If it was drafted in-house, what experiences does the Chief's counsel have with a government-employee NDA--especially where the information is not classified? Maybe they used LegalZoom or asked ChatGPT? So many questions.
The problem of course is the Barbara Streisand effect. By enforcing an NDA, the Court will be forced to publicize the very confidential information it seeks to protect. At most, this policy will have an in terrorem effect, and perhaps increase the potential costs of leaking. After all, I'm sure some future Jack Smith, inspired by Jean Valjean, joined by the merry band of innovative lawyers in the Public Integrity Section, could transform the breach of an NDA into some federal criminal offense. This sort of trickery would otherwise be unanimously rejected by the Supreme Court, but I see nine recusals.
Free Speech Unmuted: Can Journalists Be Charged for Involvement in Protests? The Don Lemon Dilemma
Jane and I, joined by press freedom advocate Seth Stern to dissect the federal prosecution of journalist Don Lemon, discuss whether covering—and allegedly accompanying—a disruptive protest inside a church can make a journalist liable for criminal conspiracy under federal laws that ban disruption of worship services.
You can also see our past episodes:
Ban on AI-Generated "Biased, Offensive, or Harmful Content" in Law Practice Passes California Senate, 39-0
The proposal would add a new Business and Professions Code section that would say, in relevant part (emphasis added):
It is the duty of an attorney using generative artificial intelligence to practice law to ensure … [that r]easonable steps are taken to do … [r]emove any biased, offensive, or harmful content in any generative artificial intelligence material used, including any material prepared on their behalf by others.
But legitimate advocacy, whether in court or "provided to the public," may well include content that some view as "biased, offensive, or harmful" (e.g., emotionally distressing, advocating for bad ideas or bad people, etc.). An attorney may well reasonably think that it's in his client's interest to engage in such advocacy.
As I understand it, there are no legal ethics rules forbidding such advocacy—indeed, they may mandate it, if that's what it takes to serve the client's interest. Indeed, even the proposed Rule 8.4(g), which would have forbidden certain "derogatory or demeaning" speech "based upon race, sex, religion, …," and which some courts have rejected on First Amendment grounds, at least expressly excluded "advice or advocacy consistent with [the] Rules [or Professional Conduct." This proposed statute doesn't have such an exclusion (though even if it did have such an exclusion, I think it would still be improper).
I'm not sure how the law can then forbid the lawyer from using AI to express those views. Indeed, I think such a requirement would be an unconstitutional viewpoint-based speech restriction, especially since "practic[ing] law" often involves not just creating court filings but also creating public statements on a client's behalf. And even when it comes to court filings, where various restrictions (perhaps including some viewpoint-based ones) may be permissible, it strikes me that this restriction would be highly unwise.
Likewise, under the bill a lawyer would have the duty to ensure that
Today in Supreme Court History: February 3, 1812
2/3/1812: Justice Joseph Story takes oath.
Open Thread
What’s on your mind?
