The Volokh Conspiracy

From Magistrate Judge Alex Tse's opinion today in Smith v. Substack, Inc.:

Prior to the filing of this case, there was a series of interactions between Smith and the Doe defendant. Smith alleges that this unknown defendant posted unflattering statements about Smith on Cancel Watch, a blog site hosted by Substack. Smith initiated contact with Substack, including twenty to thirty "complaints and queries by email" between July and September 2023, all to no avail. Substack did not respond to any of Smith's emails regarding Cancel Watch.

In February, March, April, and May of 2024, Smith asked a series of questions to a chatbot found in the support section of Substack's website. Smith asked, "do you respond to complaints," and the chatbot responded, "Yes, we respond to all complaints." He also asked, "do you respond to every complaint," and "do you always [all of the time], respond to complaints?," to which the chatbot responded with the same answer or a very similar one. Id. Smith then asked, "does Substack respond to emails?" and "Will you certainly respond to emails?," the chatbot said, "Yes, Substack responds to emails" in response to both inquiries. Smith alleges that the answers from the chatbot are the same for "queries," and that Substack says it will respond to reports. However, regardless of its chatbot's replies, Substack itself never did respond to Smith's inquiries, or to his follow-up inquiries asking why the company was ignoring him….

Smith sued Substack under a promissory estoppel theory, which is related to breach of contract. No, said the court:

From today's decision in Flynn v. Wilson, by Florida Court of Appeal Judge Susan Rothstein-Youakim, joined by Judges Darryl Casanueva and Morris Silberman:

Retired lieutenant general Michael Flynn sued Rick Wilson for defamation after Wilson referred to Flynn in a tweet as "Putin employee Mike Flynn" and retweeted "FYI, Mike Flynn is Q." Flynn seeks $50 million in damages and a permanent injunction ordering Wilson to stop defaming him. Wilson moved for summary judgment, `contending that both of his tweets were opinion or rhetorical hyperbole protected by the First Amendment that "by their nature cannot be proven true or false" and that Flynn could not show that Wilson made the statements with "actual malice." The trial court granted Wilson's motion and entered judgment in his favor. We affirm.

Flynn is a quintessential public figure. As a lieutenant general in the United States Army, he played a key leadership role in the Afghanistan and Iraq wars. He is a former head of the Defense Intelligence Agency and a former National Security Adviser to President Donald Trump. Flynn has continued to maintain a high public profile, including in the aftermath of the 2020 presidential election and in the public debate surrounding Russia's 2022 invasion of Ukraine.

Wilson is a political strategist, author, and cofounding member of the Lincoln Project, which Flynn alleges is an "organization dedicated to opposing Republicans." Wilson has written two New York Times bestsellers highly critical of President Trump and many of those who served in his administration, including Flynn. In one of those books, titled Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever, Wilson wrote about Flynn:

Capo of l'affaire russe MAGA Crew Mike Flynn, a disgraced former army general was so outrageously in bed with the Russians that even Trump was forced to fire him.

Wilson frequently expresses his opinions on MSNBC and CNN, among other networks, and on social media, including on the networking service formerly known as Twitter through his handle @TheRickWilson….

Wilson's two tweets in this case did not emerge from a vacuum. Wilson's "Putin employee" tweet was an immediate and direct response to a letter Flynn published to the world on February 24, 2022—the day Russia invaded Ukraine:

Ohio Rep. Josh Williams is proposing a new law to make planting a flag at midfield after winning a football game a felony in the state of Ohio. The bill appears to have been inspired by the tussles between Ohio State and University of Michigan players after their most recent game, which Michigan won and at which a Michigan player sought to plant a Michigan flag on the OSU field.

From the ESPN report:

Ohio state Rep. Josh Williams introduced a bill Tuesday that would classify flag planting at Ohio Stadium around Buckeyes football games as a felony.

The O.H.I.O. Sportsmanship Act, authored by Williams, comes in response to Michigan's attempt to plant its flag after a Nov. 30 win at Ohio State, which set off a brawl between the teams. Police employed pepper spray to separate players and other team personnel. Ohio State University police are investigating the incident, which involved multiple law enforcement agencies and resulted in an injury to an officer.

According to Williams' bill, "No person shall plant a flagpole with a flag attached to it in the center of the football field at Ohio stadium of the Ohio State University on the day of a college football competition, whether before, during, or after the competition. Whoever violates this section is guilty of a felony of the fifth degree."

A fifth-degree felony is the least severe in Ohio and carries a penalty of six to 12 months in prison, up to a $2,500 fine and up to five years' probation.

According to Williams, the point of the bill is to prohibit conduct that could incite violence. That may be the intent, but this seems a bit much. The idea that planting a flag is tantamount to incitement is, frankly, the sort of argument one expects to hear from those who claim offensive language is inherently violent. Elite athletes ,of all people, should be able to control themselves in such situations, and criminalizing expressive conduct out of concern for how others might respond seems to be enabling a heckler's veto. Are Buckeyes really not made of sterner stuff?

It seems to me there is a much easier way to prevent an opposing team from planting their flag at midfield: Win the game.

I've long opposed Holocaust denial bans, partly because of the slippery slope / censorship envy problem: Unsurprisingly, such bans tend to lead to broader policing of historical claims, such as the French fine imposed on noted historian Bernard Lewis for his views on the Armenian genocide. N.Y. Times (Adam Nossiter) reports the latest:

The French-Cameroonian writer, Charles Onana, author of "Rwanda, the Truth about Operation Turquoise — When the Archives Speak," and the publisher, Damien Serieyx, were fined nearly $15,000 and ordered to pay more than $11,000 to three human rights group that had sued them.

Mr. Onana, who could not be immediately reached for comment, and his publisher have appealed.

The court on Monday found Mr. Onana and the publisher guilty for their "public challenge to the existence of a crime against humanity." In his book, Mr. Onana denied there had been a genocide and denied France's responsibility.

The court cited some 19 passages it said violated French law making it illegal to deny a genocide that has been officially recognized by France or international jurisdictions. Notably, Mr. Onana wrote that the "conspiracy theory of a Hutu regime that planned a 'genocide' in Rwanda constitutes one of the biggest scams of the 20th century." …

Mr. Onana, for his part, maintained in his book that there was killing on both sides, by Tutsis and Hutus, but that there was no genocide. "Certainly, Tutsis were massacred, targeted, but they were not the only ones," he wrote. In his introduction, he wrote that he was "above all trying to make a break with 'official history.'"

From Judge Michael Moore's decision yesterday in Newman v. AP (S.D. Fla.):

Several news organizations, including the AP, reported on the October 7 Attack by publishing real time photos and articles about the conduct of Hamas militants. The Amended Complaint identifies Gaza-based photojournalists Hassan Eslaiah, Yousef Masoud, Ali Mahmud, and Hatem Ali (together, the "Freelance Photographers"), as individuals who provided photographs of the October 7 Attack that the AP ultimately published. Plaintiffs allege that the Freelance Photographers were longstanding Hamas affiliates, who "acted and continue to act as part of Hamas, furthering Hamas' goals and objectives."

To support that the Freelance Photographers were Hamas affiliates, Plaintiffs point to social media posts by one of the Freelance Photographers, Eslaiah, to suggest that he was on "friendly terms" with Hamas and its members. The Amended Complaint provides a photograph of Eslaiah posted in 2020 with then Hamas leader Yahya Sinwar, known to be the "operational mastermind" of the October 7 Attack. In the photograph, Sinwar is kissing Eslaiah on the cheek. On October 7, 2023, Eslaiah posted several photographs now removed on X, formerly known as Twitter, including one in front of an Israeli tank, stating "Live from inside the Gaza Strip settlements." Plaintiffs also cite to a video Eslaiah posted during the attack, where he states "[y]ou know, the beautiful thing about storming the settlements: the civilians, the people, they go [out] on foot and come back driving, be it a motorcycle, a scooter or a car – [one can] grab and load trophies." Additionally, Plaintiffs point out that Eslaiah did not wear a press vest, helmet, or any other press credentials. Plaintiffs aver that in light of Eslaiah's access to "the most violent and dangerous scenes of the [October 7 Attack], despite not being identifiable as a member of the press, thereby indicat[es] the degree of his entrenchment within Hamas and the trust that his fellow Hamas Terrorists placed in him."

As for the other Freelance Photographers, Plaintiffs allege that they could not have gained access to photograph the October 7 Attack without Hamas affiliations, and that the Freelance Photographers must have known about the attack in advance because they "arrived at roughly the same time as the initial Hamas terrorists who breached entry into the State of Israel," Plaintiffs also note that the Freelance Photographers' lack of press credentials or other indicia marking them as non-participants in the attack demonstrate that they were embedded within the Hamas infrastructure and were part of the Hamas Terrorists' group. In addition, Plaintiffs allege that the Freelance Photographers returned to Gaza alongside the Hamas militants.

Plaintiffs allege that the AP's publication of images by the Freelance Photographers and relationship with the Freelance Photographers contributed to the October 7 Attack. Specifically, Plaintiffs allege that the Freelance Photographers' payments and funding to Hamas "substantially contributed to the sheer mass of people that illegally infiltrated Israel," which increased the "logistical and tactical" burden on the Israeli government in responding to the attack. Moreover, the Freelance Photographers' "presence and encouragement increased the terror" felt by Israeli civilians. Plaintiffs point to the AP's payments to the Freelance Photographers as a direct monetary benefit to Hamas. They further allege that the AP's photographs helped Hamas gain public support internationally and served as a form of propaganda for Hamas.

On February 21, 2024, Plaintiffs initiated the instant action asserting claims against the AP under the Federal Anti-Terrorism Act ("ATA"), as amended by the Justice Against Sponsors of Terrorism Act ("JASTA") and two Florida state law claims. The Amended Complaint asserts six causes of action against the AP: aiding and abetting acts of international terrorism under the Federal ATA and the JASTA (Count I); conspiring in furtherance of acts of international terrorism under the Federal ATA and the JASTA (Count II); provision of material support to terrorists under the Federal ATA (Count III); provision of material support and resources to a designated foreign terrorist organization under the Federal ATA (Count IV); negligent infliction of emotional distress (Count V); and facilitating and furthering terrorism pursuant to Florida Statute § 772.13(1) (Count VI).

The court rejected plaintiffs' claims; the opinion is long, but here's an excerpt from the discussion of the aiding and abetting claim:

As I wrote Oct. 28,

Kelly Hyman is a lawyer, frequent FoxNews.com contributor, and a media and Twitter commentator in this year's presidential campaign. She had also (in Hyman v. Daoud) sued her father, a disgraced former Miami Beach mayor, over a real estate transaction. And, for several years, there have been attempts to vanish from the Internet various materials related to that dispute—including attempts to vanish news stories about it, including my own articles.

On Oct. 17, I got an e-mail related to the latest such attempt: …

In that post, I noted that the then-latest attempt was seemingly backed by a Mar. 13, 2024 court order that ordered the removal of various items, including my articles. But, as I noted later on Oct. 28, the court vacated that Mar. 13 order (in response to Marc Randazza's motion on my behalf), at least as applied to anyone other than Daoud, the defendant in that case.

Well, Dec. 3 and Dec. 4, Google was sent two [UPDATE: three] deindexing requests that dealt with articles related to Hyman v. Daoud. Both attached the Mar. 13 order, which had been largely vacated by then, as a supporting document, without noting the Oct. 28 vacating order. One deindexing request targeted 40 articles, including several of mine, as well as several from the Miami Herald, CBS News, and more:

The earliest reference I could find in a case is State of Illinois v. Harper & Row Publishers, Inc. (1972), but I found a 1944 newspaper reference as well, so it was known even then. My colleague Paola Sapienza confirms that it is indeed an Italian proverb, "Una causa è un albero da frutto piantato nel giardino di un avvocato."

Paola also pointed to another proverb, "Causa che pende, causa che rende." That translates to "A pending case makes money [for the lawyer]," but somewhat less precisely (and changing the focus from the lawyer to the client), as

A pending case is a spending case.

12/11/1922: Pennsylvania Coal Co. v. Mahon decided.

From M.H. v. Omegle.com LLC, decided yesterday by the Eleventh Circuit (Judges Andrew Brasher and Ed Carnes, joined as to the sex trafficking claim by Judge Barbara Lagoa):

The facts of this appeal underscore that the internet in general and social media in particular pose grave risks to children. When C.H. was eleven years old, a stranger connected with her through Omegle.com, an online social media platform that places people in video chatrooms. The stranger then tricked and threatened C.H. into making child pornography. Unfortunately, this problem is not unique to Omegle.com. Our precedents reflect that child predators use many other online platforms to find and exploit their victims.

Through her parents, C.H. sued Omegle.com LLC. She alleged that Omegle.com violated 18 U.S.C. § 2255, known as "Masha's Law," by knowingly possessing child pornography. She also sued Omegle.com for violating the Trafficking Victims Protection Reauthorization Act, which forbids knowingly benefitting from participation in a sex trafficking venture. The district court dismissed her claims under section 230 of the Communications Decency Act of 1996. That section provides that for purposes of civil liability, "[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by" a user.

C.H.'s appeal presents two questions of statutory interpretation. First, we must decide whether she stated a claim under Masha's Law for the knowing possession of child pornography. We conclude that she has not. Second, we must decide whether C.H. can bring her sex trafficking claim because of an exception to section 230 under the Fight Online Sex Trafficking Act ("FOSTA"). We believe she cannot. The FOSTA exception applies only to conduct that meets the standard for criminal liability for sex trafficking. Here, C.H. does not plausibly allege that Omegle.com had actual knowledge that it benefited from sex trafficking, which is the standard for criminal liability. Accordingly, we affirm the district court….

Here's the core of the court's analysis rejecting the child pornography claims:

This morning the Supreme Court issued its first signed decision in an argued case for October Term 2024. (The Court previously DIGged another case.) This restores the tradition of deciding at least some cases in the fall. Last year, the Court's first decision in an argued case did not appear until January.

Justice Ketanji Brown Jackson wrote for a unanimous Court in Bouarfa v. Mayorkas, which considered whether a petitioner may obtain judicial review when an approved visa petition is revoked due to a determination by the government that the petitioner was in a sham marriage.

Here is how Justice Jackson summarizes the decision:

A common feature of our Nation's complex system of lawful immigration is mandatory statutory rules paired with discretionary exceptions. Executive Branch agencies implement both. Whether any given agency decision is mandatory or discretionary matters, because Congress has limited judicial review of many discretionary determinations. See 66 Stat. 208, as amended, 8 U. S. C. §1252(a)(2)(B). This case involves the Secretary of Homeland Security's decision to revoke initial approval of a visa petition that Amina Bouarfa, a U. S. citizen, filed on behalf of her noncitizen spouse

The Secretary points to 8 U. S. C. §1155 as the source of the agency's revocation authority; that provision states that the Secretary "may, at any time," revoke approval of a visa petition "for what he deems to be good and sufficient cause." The issue we address today is whether revocation under §1155 qualifies as a decision "in the discretion of " the Secretary such that it falls within the purview of a separate statute—§1252(a)(2)(B)(ii)—that strips federal courts of jurisdiction to review certain discretionary actions. We hold that it does.

It is not surprising that the first opinion of the term is unanimous, as unanimity can produce a smoother and quicker opinion drafting process. It is also worth remembering that, as the junior-most justice, Justice Jackson is most likely to be assigned unanimous decisions in cases that the justices believe present straight-forward and relatively easily resolved questions.

There is no word yet on when the Court may issue additional opinions.

After a bit of a hiatus, The Academic Freedom Podcast is back and will hopefully release on a more regular schedule in coming months. It is still sponsored by the Academic Freedom Alliance and can be found on the same feed and at the same webpage. However, it is also now co-sponsored by the new Center for Academic Freedom and Free Speech at Yale Law School and the episodes can also be found there.

The description of the new episode:

The AFA's Keith Whittington interviews Cary Nelson, the Jubiliee Professor of Liberal Arts & Sciences Emeritus at the University of Illinois at Urbana-Champaign. He served for many years in the leadership of the American Association of University Professors, including terms at its president from 2006 to 2012. He is currently chair of a new organization, the Alliance for Academic Freedom (not to be confused with the Academic Freedom Alliance). In addition to his work on American poetry, he is the author of several books on higher education, including Manifesto of a Tenured Radical from 1997 and No University is an Island from 2010. His latest book is the just published Hate Speech and Academic Freedom: The Antisemitic Assault on Basic Principles.

Subscribe to the The Academic Freedom Podcast through your favorite podcast platform so that you don't miss an episode.

I will be doing a webinar today at noon (eastern) with Gregg Nunziata at the Society for the Rule of Law. You can register for the virtual event at here.

We will be discussing my latest book, The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool, just published by Princeton University Press. From PUP's description of the book.

Drawing insights from American and British history, congressional practice, and the language of the Constitution itself, Whittington shows how impeachment is a tool for checking abuses of elective office and defending constitutional norms. While we have come to associate impeachment with the presidency, it can be used to remedy gross misconduct by an array of officers of the federal government. Whittington cautions against abusing this immense and consequential power to settle political scores, demonstrating how it undermines the independence of the branches and makes Congress the seat of political power.

From the blurbs:

"A truly exceptional contribution to the literature on impeachment. Whittington shows how impeachment is indeed about politics, but it must be a high constitutional politics that calls on elected officials to exercise the responsible judgment on which the health of democratic institutions ultimately depends. There is no doubt that this indispensable treatment of the subject will, as it should, find a wide audience in the nation's capital and beyond."—Bob Bauer, author of The Unraveling: Reflections on Politics without Ethics and Democracy in Crisis

"As presidential impeachments descend to the realm of normal politics, many Americans are asking what impeachments are really for and how they work. This is the perfect book to answer those questions: nonpartisan, historically informed, reliable, and readable. Keith Whittington has done the country a favor."—Michael W. McConnell, author of The President Who Would Not Be King: Executive Power under the Constitution

You can buy a copy for yourself -- including in audiobook form! -- right now. You can also find an earlier conversation about the book and the impeachment power with Harvard Law School's Jack Goldsmith at the Lawfare Podcast here.

During oral argument in Skrmetti, Justice Thomas disputed that the Tennessee law imposed a sex-based classification. Instead, he said, this was merely an age-based classification. Adults are able to receive certain treatment, but minors cannot. And generally, age-based classifications are reviewed for minimum rationality. For example, why do different states grant drivers licenses at 15, 16, 17, and 18 years old? Courts would never even ask such a question.

JUSTICE THOMAS: Much of your -- the latter part of your opening statement suggests that the -- well, seemed to suggest that there's an outright ban on this treatment. But that's not the case. It's really for minors. So why isn't this simply a case of age classification when it comes to these treatments as opposed to a ban, as you suggested in your opening statement?

Solicitor General Prelogar pushed back on this suggestion. She explained that when the government imposes two types of classifications (suspect and non-suspect), the courts have considered it under the suspect (or quasi-suspect) classification.

GENERAL PRELOGAR: It's certainly true, Justice Thomas, that the statute classifies based on age, but it packages that age classification with a sex restriction and says that for all adolescents, you cannot take these medications if they're inconsistent with your sex.

So I acknowledge that the State so far has not banned this care for adults, although I think that the arguments it's making that this isn't a sex-based line in the first place would equally apply in that context. But the Court has likewise made clear that when you classify on the basis of multiple characteristics, you can't avoid heightened scrutiny just because you have a non-protected characteristic that accompanies the protected one.

This exchange may have implications for another type of law. Australia banned social media for minors. Sweden is considering similar rules. I'm sure states in our country will follow suit.

How should the courts consider a categorical ban on social media for minors? Is the ban merely an age-based classification? Or does the ban violate the Free Speech Clause of the First Amendment? To rephrase the SG's answer to Justice Thomas, what happens when an age classification is packaged with a fundamental right?

I can't recall if anyone argued that the law in Brown v. EMA was merely an age-based classification. But Ginsberg v. New York seemed to expressly countenance different speech restrictions for minor.

I'm not sure what the answer is to this question. I'll give it some thought.

From In re Ex Parte Application of Kim, decided Thursday by Judge Beth Labson Freeman (N.D. Cal.), a case involving an application filed "pursuant to 28 U.S.C. § 1782, seeking leave to take limited discovery from Google LLC" for a South Korean civil defamation case:

Ms. Kim claims that she has been the victim of cyberbullying arising from her relationship with Tae-Won Chey, with whom she lives in the Republic of Korea, where they are raising their child. For the past eight years, Mr. Chey has been involved in legal proceedings relating to his divorce from So-Yeong Roh. Mr. Chey is the Chairman of a large Korean tech conglomerate and Ms. Roh is the daughter of former South Korean president Tae-Woo Roh.

Their divorce proceedings have garnered significant publicity, and anonymous persons have published more than 100 videos on YouTube that portray Ms. Kim in a negative light. Among other things, the YouTube videos state that Ms. Kim fabricated her academic credentials and that Ms. Kim's mother was a bar hostess and the mistress of a married man.

The videos were posted anonymously on ten different YouTube channels. The persons who posted the videos appear to be native Korean speakers, and nothing in the videos suggests that they live outside of Korea. Ms. Kim has filed ten civil defamation actions in the Seoul Western District Court in Korea. Those actions have not been served, however, because Ms. Kim has not been able to discover the identities of the persons who posted the videos.

Ms. Kim asserts that the information necessary to identify the persons who posted the videos is held by YouTube's parent company, Google LLC, which maintains its principle office in Mountain View, California….

As construed by the Supreme Court, § 1782 "authorizes, but does not require" a district court to permit discovery for use in a foreign proceeding. Intel Corp. v. Advanced Micro Devices, Inc., (2004). "Section 1782's statutory language has been distilled to permit district courts to authorize discovery where three general requirements are satisfied: (1) the person from whom the discovery is sought 'resides or is found' in the district of the district court where the application is made; (2) the discovery is 'for use in a proceeding in a foreign or international tribunal'; and (3) the application is made by a foreign or international tribunal or 'any interested person.'"

In Berens v. Yale New Haven Health Servs. Corp., decided yesterday by Judge Janet Hall (D. Conn.)'s decision, Yale New Haven Health employees sued to challenge Yale New Haven's COVID-19 vaccine protocols. Those plaintiffs who sued pseudonymously apparently all received exemptions from the vaccine mandate, but "were required to submit negative COVID-19 test results each week" from mid-2021 to mid-2022. They are alleging that Yale New Haven, acting in concert with the government, violated their due process and equal protection rights.

The merits, though, aren't yet before the court; rather, the question was whether the plaintiffs could sue pseudonymously, hiding their identities from both the defendant and the public. No, the court said:

Under Federal Rule of Civil Procedure 10(a), "[t]he title of the complaint must name all the parties[.]" This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." {"[I]dentifying the parties to [a] proceeding is an important dimension of publicness [because] [t]he people have a right to know who is using their courts."} … When determining whether pseudonyms are appropriately used, the court, in its discretion, must balance "the plaintiff's interest in anonymity … against both the public interest in disclosure and any prejudice to the defendant." …

This case involves a company policy requiring COVID-19 vaccination or testing, and, therefore, is not a highly sensitive matter. Indeed, "[t]he fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

From Judge Marco Hernandez's decision posted yesterday in U.S. v. Hernandez-Zamora (D. Alaska); for the order granting a new trial, see this other post:

On July 19, 2024, Defendant filed a motion for either dismissal of the indictment or a new trial based on misconduct by former U.S. District Court Judge Joshua Kindred and a senior Assistant United States Attorney ("AUSA 1"). Prior to filing a response to Defendant's motion, the Government sought a protective order concerning confidential material it planned to disclose to defense counsel. The Court granted the motion for a protective order, and all materials that were subject to the protective order were filed under seal, including the response and reply briefs related to the motion for a new trial.

The Court ultimately granted Defendant's motion for a new trial, finding that the relationship between Judge Kindred and AUSA 1 created an appearance of impropriety in violation of 28 U.S.C. § 455. The Court's opinion, which referenced the sealed materials, was also filed under seal.

Now, Defendant … asks that the Court unseal and remove redactions from these court filings, arguing that they contain important information about judicial and prosecutorial misconduct in this case. The Government opposes Defendant's motion….

From Judge Marco Hernandez's Opinion in U.S. v. Hernandez-Zamora (D. Alaska), filed Sept. 27 but just unsealed yesterday:

On May 19, 2021, Defendant Rolando Hernandez-Zamora was indicted on one count of cyberstalking in violation of 18 U.S.C. §§ 2261A(2)(A), (B), and 2261(b)(6).

On June 1, 2021, the matter was assigned to United States District Court Judge Joshua Kindred.

On November 19, 2021, Defendant was charged in a superseding indictment with one count of cyberstalking in violation of a protective order violating 18 U.S.C. §§ 2261A(2)(A), (B), and 2261(b)(6).

In December 2021 Judge Kindred began texting frequently with a senior [Assistant U.S. Attorney] ("AUSA 1"), sending her "selfies," and telling her that he found her attractive. Judge Kindred also began asking AUSA 1 to send him nude photographs of herself. AUSA 1 agreed to share nude photographs of herself with Judge Kindred via the encrypted messaging app Signal, and "he agreed to delete everything." AUSA 1 then began sending Judge Kindred nude photographs. AUSA 1 also sent Judge Kindred text messages "describing how [she] would perform oral sex on him." Judge Kindred would "frequently" send AUSA 1 texts "detailing … his fantasies of performing oral sex and anilingus on [her]."

The Volokh Conspiracy

Can You Sue Over Assurances Made by Company's Customer Service AI Chatbot?

Maybe, but not in this particular case, a federal court rules.

Former National Security Advisor Michael Flynn Loses Libel Lawsuit Against Lincoln Project Cofounder Rick Wilson

Ohio Legislator Proposes Criminalizing Planting a Flag at Midfield

A new type of sore-loser law.

French Court Finds Writer "Guilty of Denying the 1994 Rwandan Genocide"

Court Rejects Lawsuit Against AP Over Oct. 7 Deaths and Injuries, Premised on AP's Buying Photos from Allegedly Hamas-Connected Freelancers

The Takedown Requests Just Keep on Coming

"A Lawsuit Is a Fruit Tree Planted in a Lawyer's Garden"

An Italian proverb, which I just learned yesterday.

Today in Supreme Court History: December 11, 1922

Tuesday Media Recommendations: Science Fiction or Fantasy TV Shows

Post your recommendations in the comments; other weeks, there'll be other posts for other topics and other formats.

Eleventh Circuit Rejects Federal Child Porn/Sex Trafficking Claims Against Video Chat Service Omegle

Justice Jackson Authors First Decision of OT2024

The junior justice authors a unanimous immigration law decision for the first of the term.

The Academic Freedom Podcast is Back!

The podcast relaunches with a conversation with Cary Nelson

Webinar Today on My New Book on the Impeachment Power

Hosted by the Society for the Rule of Law

Would Banning Social Media Implicate The Free Speech Clause? Or Would It Be an Age-Based Classification?

These questions relate to Skrmetti.

Interesting Illustration of International Subpoenas Aimed at Identifying Alleged Online Defamers

The case indirectly involves a long and messy divorce dispute between a Korean billionaire tech CEO (chairman of the third-largest South Korean company) and the daughter of South Korea's first democratically elected President.

No Pseudonymity for Plaintiffs Challenging Employer's COVID-19 Protocols

"[C]ourts should not permit parties to proceed pseudonymously just to protect the parties' professional or economic life."

Order Unsealing Opinion Granting New Trial Based on Judge's Sexting Relationship With One of the Prosecutors

New Trial in Case Where Judge Had Sexting Relationship With One of the Prosecutors

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