The Volokh Conspiracy

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The Volokh Conspiracy

Vatican Repudiates "Discovery Doctrine"


Last month, Chief Justice Marshall's opinion in Johnson v. McIntosh turned 200 years old. Most 1Ls read this case in property. In this canonical decision, Marshall explained that European explorers "acquired" land in the Americas pursuant to the discovery doctrine.  Of course, indigenous people already resided on this territory, but those "fierce savages," as Marshall called them, did not have any property rights. Thus, European explorers could "discover" these new lands, as if they were uninhabited.

Here is how Marshall described the discovery doctrine:

Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives… All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and conquest, can rest on no other basis; and all existing titles depend on the fundamental title of the crown by discovery….

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

The discovery doctrine was grounded, in part, on religion. Christians were superior and the native people were inferior. Indeed, according to the doctrine, Christians were helping the native people by bestowing "civilization and Christianity" on them. The Catholic Church, in particular, had endorsed these principles when it approved various European expeditions. Indeed, some of these papal decrees stretch back to the 1400s.

The doctrine was laid out in a series of papal "bulls," or decrees; the first one was issued in 1452. They authorized colonial powers such as Spain and Portugal to seize lands and subjugate people in Africa and the "New World," as long as people on the lands were not Christians.

Scholars widely note three bulls: Pope Nicholas V's Dum diversas (1452) and Romanus Pontifex (1455); and Pope Alexander VI's Inter caetera (1493).

Now, the Vatican has taken the action to repudiate these decrees. Or more precisely, the Vatican stated that these decrees were never actually part of the teachings of the Catholic church:

5. It is in this context of listening to indigenous peoples that the Church has heard the importance of addressing the concept referred to as the "doctrine of discovery." The legal concept of "discovery" was debated by colonial powers from the sixteenth century onward and found particular expression in the nineteenth century jurisprudence of courts in several countries, according to which the discovery of lands by settlers granted an exclusive right to extinguish, either by purchase or conquest, the title to or possession of those lands by indigenous peoples. Certain scholars have argued that the basis of the aforementioned "doctrine" is to be found in several papal documents, such as the Bulls Dum Diversas (1452), Romanus Pontifex (1455) and Inter Caetera (1493).

6. The "doctrine of discovery" is not part of the teaching of the Catholic Church. Historical research clearly demonstrates that the papal documents in question, written in a specific historical period and linked to political questions, have never been considered expressions of the Catholic faith. At the same time, the Church acknowledges that these papal bulls did not adequately reflect the equal dignity and rights of indigenous peoples. The Church is also aware that the contents of these documents were manipulated for political purposes by competing colonial powers in order to justify immoral acts against indigenous peoples that were carried out, at times, without opposition from ecclesiastical authorities. It is only just to recognize these errors, acknowledge the terrible effects of the assimilation policies and the pain experienced by indigenous peoples, and ask for pardon. Furthermore, Pope Francis has urged: "Never again can the Christian community allow itself to be infected by the idea that one culture is superior to others, or that it is legitimate to employ ways of coercing others."

7. In no uncertain terms, the Church's magisterium upholds the respect due to every human being. The Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the legal and political "doctrine of discovery".

Johnson v. McIntosh remains good law. If there is any reason to cancel John Marshall, this is it.

Joan Biskupic Breaks Some News About Pavan v. Smith and Masterpiece Cakeshop

Did Roberts and Kennedy swap votes to GVR Pavan and grant Masterpiece?


Earlier this week, I wrote about Joan Biskupic's first article on her new book. Her exclusives were barely there. Biskupic's second article, however, breaks some news. Now, these reveals are a bit dated, but they do shed some light on the Chief Justice.

Let's flash back to 2017 when two cases that concerned gay rights reached the Court's docket. First, Masterpiece Cakeshop was distributed for the January 13, 2017 conference. Second, Pavan v. Smith was distributed for conference on May 2, 2017. Both cases, however, would linger in docket purgatory for some time. In Masterpiece, the Court requested the record, then rescheduled the case, and then distributed the petition for fifteen consecutive conferences. Finally, on June 26, 2017, the Court granted the petition. That was the same day the Court handed down all of its remaining opinions, including Trinity Lutheran and Hernandez v. Mesa. And on that same day, the Court (per curiam) granted review in the travel ban cases, and stayed the lower court injunctions. Pavan v. Smith also lingered on the Court's docket for some time. The Court also requested the record here, and then distributed the petition for four consecutive conferences. And, on June 26, 2017, the Court GVR'd the Arkansas Supreme Court.

There was special significance to this date. Judge Kennedy was confirmed on June 26, 1987; Lawrence v. Texas was decided on June 26, 2003; United States v. Windsor was decided on June 26, 2013; and Obergefell v. Hodges was decided on June 26, 2015. I've called June 26th St. Anthony's day. (On June 25th, 2017, I asked on my blog, "What will happen on June 26, 2017?").

I've long suspected that the Supreme Court (the Chief in particular) holds all of the controversial matters for the final day of the term, in part, to overload the public. If there are so many blockbuster cases in a short period of time, there simply is less time for the press to cover everything. June 26, 2017 was such a day. At 9:30 a.m., the Court's order list reflected the grant in Masterpiece Cakeshop and the GVR in Pavan v. Smith, as well as the grant/stay in the travel ban case. And at 10:00 a.m., the Court began to hand down the remaining blockbuster cases. What an overload! You would have been forgiven for overlooking Pavan and the Masterpiece grant. Indeed, I checked my blog, and I only wrote about the travel ban case that day. I didn't get to Pavan till July 1.

Back to Biskupic. On Thursday, she published another excerpt from her new book. Biskupic claims that it was not a coincidence that Pavan and Masterpiece were both granted on June 26. According to Biskupic, Chief Justice Roberts and Justice Kennedy reached some sort of arrangement: the Chief would vote to summarily reverse Pavan if Kennedy voted to grant in Masterpiece. Or something like that. Here is Biskupic's account:

Here, Roberts would join Kennedy in favor of LGBTQ interests in ruling that Arkansas could not prevent two lesbians from both being named on their baby's birth certificate.

Meanwhile, Kennedy would vote for the court to hear the appeal of the owner of Masterpiece Cakeshop in Colorado, who'd been sanctioned for refusing to bake a wedding cake for two gay men….

The justices' public action in both cases was deliberately announced on the same day, June 26, 2017. That also reflected a pattern of Roberts'. The acceptance of an appeal from a baker who had refused to create a cake for a gay couple based on religious objections could easily have led to a public perception of new Supreme Court hostility toward gay rights. But announcing the Arkansas birth-certificate ruling countered that perception, at least in the moment.

Now this account, by itself, seems incomplete. It takes six votes to summarily reverse Pavan, so Kennedy would have needed Roberts's vote. But certiorari only requires four votes. And for Masterpiece, there were already four: Roberts, plus Thomas, Alito, and Gorsuch. I suspect what is really going on here is that Roberts wanted Kennedy to vote to grant, which would signal that Kennedy would also to reverse the lower court, and rule for Jack Phillips. Roberts may have opposed casting the fourth vote to grant certiorari in Masterpiece unless he was certain there was a fifth vote on the merits. This alleged deal between Roberts and Kennedy would thus provide that support: Roberts commits to a sixth vote to summarily reverse Pavan on very narrow grounds, and Justice Kennedy wrote a very narrow opinion in Masterpiece on Free Exercise Clause grounds. (Now, nearly six years later, the Court will finally resolve the Free Speech Clause issue in 303 Creative.) Of course, this deal was risky. The SumRev came in June 2017, so Roberts's vote was locked in. But Kennedy's vote would be in flux until June 2018--in what would turn out to be his final sitting on the Court. Still, Roberts rolled the dice.

Moreover, we do know that Roberts ultimately assigned Kennedy the majority opinion in Masterpiece, which provides some support for Biskupic's writing. Then again, St. Anthony wrote every opinion concerning gay rights:

During oral arguments in December 2017 and subsequent negotiations in the Masterpiece Cakeshop case, Kennedy continued to be torn. He was ready to side with Phillips but to a limited extent. Roberts assigned Kennedy to write the opinion for the court, aware of the fine line Kennedy traversed, and because of Roberts' own interest in a decision that avoided the deep split of Obergefell.

Biskupic writes that Breyer and Kagan, who joined the Kennedy opinion, "were willing to make a deal with Kennedy and, to some extent, Roberts."

We learn a bit more from Biskupic's reporting. Justice Alito prepared a draft dissent from the denial of certiorari in Masterpiece:

The pact had an additional result of keeping a testy draft from Justice Samuel Alito regarding the Masterpiece Cakeshop petition from becoming public….

Alito, focused on potential hostility toward the baker's religious beliefs, began working on a dissenting opinion from the expected denial of the Masterpiece Cakeshop appeal. But that Alito dissent, circulated to his colleagues and described by court sources, never reached the public because the justices eventually agreed that the baker's claim of religious discrimination should be heard.

It is not difficult to imagine what that dissental would have looked like. Think Storman's Pharmacy.

The story also provides some insights into Justice Kennedy's thinking concerning Pavan and Masterpiece:

[Kennedy] wanted to reverse the Arkansas state court, based on Obergefell's protections for same-sex couples, and was joined by the four liberals who had helped compose the majority in Obergefell. They believed the Pavan v. Smith matter was straightforward enough to be done through a summary reversal opinion, without holding oral arguments or a full round of written briefs. . . .

Kennedy was reluctant to take up the baker's case, so soon after the Obergefell decision and without significant lower-court consideration of such emerging issues. He'd previously told colleagues that he was skeptical of religious exemptions for retailers who would deny services to gay people. So Phillips' petition languished.

Biskupic also opines on the horse-trading issue:

The justices abhor any suggestion of dealmaking, whether overt or implicit, but closed-door pacts occur, and Roberts has been at the center of them for years. In many instances, law clerks know about a deal struck between justices. But in others, only the two justices involved truly know. Sometimes various chambers have dueling accounts of what happened, or individual justices remain baffled about why a colleague voted the way he or she did in the end.

Roberts traded votes in NFIB: in order to get Breyer and Kagan to join his taxing power opinion, he voted to make the Medicaid expansion optional. And, according to Biskupic, he horse-traded votes in Pavan and Masterpiece. I'm sure there are more such cases. No matter how hard Roberts slices it, he is the most political Justice. He treats the law the same way a legislator would: casting votes to achieve as much of his agenda as possible while alienating as few constituents as possible. Now, with Breyer and Kennedy gone, the Chief has much less room to operate, but he will still try.

Finally, there is the question of sourcing. Who gave Biskupic this information? The story itself emerged in mid-2017, so I think it safe to say that Justices Kavanaugh, Barrett, and Jackson are not likely sources. It is possible that Justice Ginsburg may have been a source, and Biskupic was sitting on this story for a few years. Remember that Biskupic's rate of inside scoops came to a halt after RBG died. The story also speaks about what Kennedy told "colleagues" about Masterpiece, so RBG may have been one of those colleagues. It is also possible that Justice Kennedy spoke to the press, perhaps in an attempt to rehabilitate his image post-Trump, though I am skeptical AMK would breach decorum. The source may also have been Justices Breyer or Sotomayor, but I too am doubtful they would talk to a reporter, especially after the Dobbs leak. My best guess is that this information is several years old.

Let's see what the third story brings.

Free Speech

Meghan Markle Wins Dismissal of Defamation Suit Brought by Half-Sister Samantha Markle


See today's decision by Judge Charlene Edwards Honeywell (M.D. Fla.) in Markle v. Markle. There's a lot going on there, but here is one excerpt. First, one defamatory passage from an Oprah Winfrey interview, with the allegedly defamatory material underlined:

Oprah Winfrey: And Samantha Markle, your half-sister on your father's side, has written a, a supposedly tell all book about you. What is … your relationship with her?

Defendant: I think it would be very hard to tell all when you don't know me. And … this is a very different situation than my dad, right? When you talk about betrayal, betrayal comes from someone that you have a relationship with. Right? I don't feel comfortable talking about people that I really don't know. But I grew up as an only child, which everyone who grew up around me knows, and I wished I had siblings. I would have loved to have had siblings ….

And here's the court's rejection of the claim that this is defamatory:

Here, a reasonable listener would not think that Defendant was suggesting that she has no half-siblings, that Plaintiff does not actually exist, or that Plaintiff is not related to her…. As a reasonable listener would understand it, Defendant merely expresses an opinion about her childhood and her relationship with her half-siblings. Thus, the Court finds that Defendant's statement is not objectively verifiable or subject to empirical proof…. Because the statement is not "capable of being proved false, it is protected from a defamation action."

Congratulations to Jonathan P. Steinsapir and Michael J. Kump (Kinsella Weitzman Iser Kump and Aldisert), Nicholas Soltman, and Ronnie J. Bitman (Bitman, O'Brien & Morat, PLLC), who represent defendant.

Free Speech

Don Blankenship Loses Libel Lawsuit Against Donald Trump, Jr., Who Called Blankenship a "Felon"

Coal baron and later Senate candidate Blankenship had been convicted of a misdemeanor, and served a year in prison for it; a federal judge has concluded that Blankenship hadn't introduced enough evidence that Trump, Jr. knew that he had erred in calling Blankenship a "felon."


From Blankenship v. Trump, decided today by Judge John Copenhaver (S.D. W. Va.):

Following an explosion at Upper Big Branch, a West Virginia coal mine, on April 5, 2010, which resulted in the death of twenty-nine miners, the United States government initiated an investigation into the cause of the explosion. While the plaintiff was not charged with the death of the miners or with causing the explosion, the government charged the plaintiff with three felonies, including conspiracy to defraud the federal Mine Safety and Health Administration, and one misdemeanor for conspiracy to violate federal mine safety laws. On December 3, 2015, a federal jury found the plaintiff not guilty of the felony charges but convicted him of the misdemeanor offense. The plaintiff was sentenced to one year in prison, which the plaintiff served and from which he was released in the spring of 2017.

In January 2018, the plaintiff announced his campaign to run as a Republican for a United States Senate seat in West Virginia…. The plaintiff alleges that political and news media figures conspired to defeat his candidacy by referring to the plaintiff as a "felon" or a "convicted felon," despite the fact that the plaintiff was cleared of the felony charges and was only convicted of the misdemeanor offense. One of these figures was Trump, Jr. On May 3, 2018, after allegedly attending a meeting with members of the National Republican Senatorial Committee ("NRSC"), Trump, Jr. published a series of tweets about the plaintiff from his Twitter handle @DonaldTrumpJr.

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My New Article "Abortion and Foot Voting in Post-Dobbs America: Prospects for Change"

Second in a two-part series published by Australian Outlook, a publication of the Australian Institute for International Affairs.


In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta)


Australian Outlook, (a publication of the Australian Institute for International Affairs), has published my article "Abortion and Foot Voting in Post-Dobbs America: Prospects for Change." This piece is the second in a two-part series. The first part, published last week, explained why post-Dobbs interstate variations in abortion policy may be unlikely to generate much in the way of foot voting by people seeking to avoid abortion restrictions—at least not the kind of foot voting that involves actually moving to another state. This one considers potential developments that might change that. Here's an excerpt:

As described in Part I of my series on abortion and foot voting in the wake of Dobbs, the broader response to the Supreme Court's 2022 decision holding there is no constitutional right to abortion is likely to lead to only modest abortion-driven foot voting. The combination of contraception, mail-order abortion pills, and traveling out of state to get an abortion provide relatively low-cost substitutes for in-state abortion access for most women. In addition, exclusionary zoning, high taxes, and job-killing regulations reduce the attractiveness of many pro-choice "blue" states to potential foot voters.

But a number of factors might change that. Most obviously, policy changes could potentially reduce or eliminate low-cost alternatives to in-state abortion access. For their part, blue states have been taking steps to make themselves more attractive to would-be movers….

The most obvious shift that could change foot voter calculations is that conservative states might try to ban contraception. But contraception is overwhelmingly popular in the United States and doesn't generate the same kinds of deep-seated, left-right divisions as abortion…

A conservative group has filed a lawsuit claiming that the federal Food and Drug Administration (FDA) illegally approved Mifepristone, a drug used in most medication abortions. The plaintiffs' legal arguments are dubious. But they could potentially get a favorable ruling, at least at the initial trial court stage. If the plaintiffs ultimately prevail, it would make mail-order abortion much more difficult…

As with mail-order pills, red states could also try to ban interstate travel to get an abortion. The Missouri state legislature has already considered doing just that, and Idaho is considering a more limited ban, focusing on travel by minors. But such restrictions probably would not stand up in court, as there are multiple strong constitutional arguments against them. In a concurring opinion in the Dobbs case, Justice Brett Kavanaugh – a key member of the conservative majority on the Supreme Court – emphasised his view that such restrictions would indeed be unconstitutional….

In the article, I also consider the possibility that the federal government might enact nationwide legislation on abortion, either of the pro-life or pro-choice variety.

I have previously written about abortion and foot voting here and here.


How Biden's Private Sponsorship Parole Policy Reduced Illegal Migration by Making the Legal Kind Easier

Biden extended the successful Uniting for Ukraine model to cover migrants from four Latin American nations with oppressive governments and horrible conditions, thereby greatly reducing illegal migration from those nations. This effect undercuts a lawsuit challenging the program, filed by twenty red states.


Venezuelans fleeing the socialist regime of Nicolas Maduro.


In early January, the Biden Administration extended the model used by the successful Uniting for Ukraine private migrant sponsorship program to include  up to 30,000 migrants per month from four Latin American countries: Cuba, Venezuela, Nicaragua, and Haiti. Under the program, migrants from these countries can quickly gain legal entry into the United States and the right to live and work here for up to two years, if they pass a background check and have a private sponsor in the US who commits to supporting them.

As in the case of Uniting for Ukraine, the main justification for this program is to grant refuge to people fleeing horrific violence, poverty, and oppression. Three of the four nations covered by the program are ruled by repressive socialist dictatorships, and the fourth (Haiti) suffers from horrific escalating violence and extreme poverty.

In a recent substack post, Cato Institute immigration analyst Alex Nowrasteh (one of the nation's leading immigration policy experts) describes how the program has a notable additional benefit. It greatly reduces illegal border crossings:

Encounters of migrants crossing the southwest (SW) border with Mexico are down 39 percent from December 2022 to February 2023. President Biden's immigration and border plan that expanded legal migration to the United States through humanitarian parole should take credit for this decline. Under Biden's plan, up to 30,000 migrants from Venezuela, Cuba, Nicaragua, and Haiti (VCNH migrants) are allowed to enter the United States legally each month through humanitarian parole. As a result, more of them are waiting to come legally rather than attempting to cross illegally.

In February 2023, the number of VCNH migrants encountered, found inadmissible by Customs and Border Protection (CBP), or apprehended by Border Patrol decreased by 84 percent compared to December 2022. The number of VCNH migrants showing up at the border fell from 91,344 in December to 22,084 in January and then further down to 14,381 in February….

This trend supports Cato's theory that legal migration discourages illegal immigration and border crossings. Non-VCNH migrants who do not have the option of humanitarian parole fell by only 12.5 percent from 160,651 in December 2022 to 134,192 in January and rose again to 140,617 in February. Almost 80 percent of the total decline in encounters along the border from December to February comes from a reduction in VCNH migrants….

Biden's border plan reduced chaos along the Southwest land border in a short period. That's good for its own sake, helps clear the air for a serious immigration debate, and is politically astute for Biden, which means that the incentives for good policy are politically aligned and sustainable. Second, the Biden plan increases legal immigration when U.S. labor demand is still high. Third, it defunds criminal networks and cartels by channeling many migrants into the legal system and away from the black market.

For reasons Alex explains, the reduction in illegal crossing by VCNH country migrants cannot be explained by other factors. It is powerful evidence for the proposition that the easiest way to reduce illegal migration is to make the legal kind easier. This also, of course, has the effect of reducing disorder at the border, and curbing opportunities for organized crime.

In addition to the policy advantages noted in Alex's post, the reduction in illegal border crossings undercuts the rationale for the lawsuit challenging the program filed by twenty red states. As I explain here, the statute authorizing the president to use the "parole" power to let in migrants indicates that he may do so "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." Reducing illegal migration and disorder at the border qualifies as such a "significant public benefit." Or at least it does if you believe the leaders of the plaintiff states, who have long been loudly complaining about illegal border crossings, and claiming they constitute a major crisis.

For reasons laid out in my earlier post, it is also pretty obvious that there are compelling "humanitarian reasons" for paroling migrants from these four nations. On this point, too, you don't need to take my word. You can instead take that of the governors of some of the plaintiff states in the lawsuit:

Three of the four nations included in the program are ruled by oppressive socialist dictators, whose policies have created horrific conditions. Few have put it better than Florida Governor Ron DeSantis, whose state is one of the participants in lawsuit. As he said last year, Venezuela's socialist president Nicolas Maduro is a "murderous tyrant" who "is responsible for countless atrocities and has driven Venezuela into the ground." DeSantis went on to say that "people [in Venezuela] are "really hurting,"due to the government's policies. It is indeed true that Venezuelan socialism has resulted in widespread oppression, poverty, and hyperinflation, leading to the biggest refugee crisis in the history of the Western hemisphere, with some 6 million people fleeing. Texas Governor Greg Abbott, whose state is spearheading the lawsuit, has also noted the severe economic crisis in Venezuela, which he (rightly) blames on socialism.

In 2021, DeSantis  signed a law requiring Florida public schools to provide 45 minutes of instruction each year on the evils of Communist regimes, including that of Cuba, which DeSantis correctly described as responsible for "poverty, starvation, migration, systemic lethal violence, and suppression of speech." Cuba, likewise, inflicts severe poverty and oppression on its people, including recent brutal suppression of protests in July 2021….

Nicaragua under the increasingly authoritarian socialist rule of Daniel Ortega is a similar story. Ortega's repression has deepened already severe poverty, and created what even the left-leaning BBC describes as an "atmosphere of terror…."

Abbott, DeSantis, and other GOP governors have repeatedly denounced both the evils of socialism generally, and those of the Cuban, Venezuelan, and Nicaraguan governments specifically.

But perhaps they have somehow forgotten these things. If so, DeSantis should invite his fellow GOP governors to sit in on one of the 45-minute classes on the evils of communism, established under the law he signed last year.

An Era of Broad Remedies Makes Standing Even More Important


"Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so."

Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 145–46 (2011).

Free Speech

Negligence Theories in "Large Libel Models" Lawsuits Against AI Companies


This week and next, I'm serializing my Large Libel Models? Liability for AI Output draft. For some earlier posts on this (including § 230, disclaimers, publication, and more), see here; in particular, the two key posts are Why ChatGPT Output Could Be Libelous and An AI Company's Noting That Its Output "May [Be] Erroneous" Doesn't Preclude Libel Liability.

Yesterday, I wrote about lawsuits against AI companies claiming that they are knowingly or recklessly publishing, through their software, false and defamatory statements. Today, I'll start on the discussion of similar negligence claims.

[* * *]

[1.] Responsibility for the equipment a company uses

Say that R.R. is a private figure, and can show that the statements about him have caused "actual injury," in the form of "out-of-pocket loss" or emotional distress stemming from damage to reputation.[1] (Perhaps R.R. lost a contract that he was expecting to get, and it eventually came out that the reason was that the other party had looked up his name in ChatGPT.) Or say he can show that the statements about him are on a matter of "private concern" for libel purposes. Can he sue OpenAI, even in the absence of any specific notice to OpenAI that its output was defamatory?

I think so. A business is generally potentially responsible for harms caused by the equipment it uses in the course of business, at least when it negligently fails to take reasonable steps to minimize the risks of those harms. (As I'll turn to shortly, it's also potentially responsible for harms caused by products it sells, though right now AI companies actually directly provide access to the AI software, on their own computers.)

If a company knows that one of its machines sometimes emits sparks that can start fires and damage neighbors' property, the company must take reasonable steps to diminish these risks, even if it didn't deliberately design the machines to emit those sparks. If a company knows that its guard dogs sometimes escape and bite innocent passersby, it must take reasonable steps to diminish these risks (put up better fences, use stronger leashes, train the dogs better).

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Free Speech

Can Governmental Defendants Use Anti-SLAPP Statutes When They're Sued Based on Their Speech?

No, said the Florida Court of Appeal, interpreting the Florida statute; the California Supreme Court, interpreting the California statute, had held otherwise.


Say Paul sues Don, claiming that Don libeled Paul. Don might be in the right, and he might eventually win—but it may take a lot of time and a lot of money. As a result, the Dons of the world will often settle, and agree to take down or retract their statements; the threat even of legally unfounded litigation might silence them.

Because of that, many states have enacted anti-SLAPP statutes, which (generally speaking) make it easier for defendants to quickly dispose of cases brought based on speech on matter of public concern. (The statutes are often raised in response to libel claims, but they also apply to other speech-based claims.) The statutes often have some mix of the following features:

  1. A right to move to get the case promptly dismissed.
  2. A stay of factual discovery while the motion is being considered.
  3. Immediate appeal if the court denies the motion to dismiss.
  4. Payment by plaintiff of the defendant's legal fees if the defendant wins the motion.

The plaintiff can respond to the motion by arguing that he has a legally viable claim. (Generally speaking, at this point, before discovery, the court doesn't consider any factual disputes, but focuses on the legal issue.) But if plaintiff's claim proves not to be legally viable, defendant wins quickly.

These statutes have often raised lots of interesting legal questions of their own, including whether governmental defendants can bring the same anti-SLAPP claims, if they are sued based on their speech. The California Supreme Court, for instance, held that governmental defendants are indeed entitled to bring anti-SLAPP motions (Vargas v. City of Salinas (Cal. 2009)), but today the Florida Court of Appeal interpreted the Florida statute differently (in Crosby v. Town of Indian River Shores, written by Jeffrey Kuntz and joined by Judge Dorian Damoorgian):

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Religion and the Law

Apache Stronghold v. U.S.: Religious Freedom and Government Property


There's long been a dispute about whether religious freedom provisions limit the government's power related to religious sites on government land. These are usually American Indian sites, though in principle they might be other religious sites as well.

In Lyng v. Northwest Indian Cemetery Protective Ass'n (1988), the Court held that the Free Exercise Clause doesn't give religious groups the legal right to stop various government activities related to such sites (even though at the time, after Sherbert v. Verner but before Employment Division v. Smith, the Court had read the Free Exercise Clause as securing a presumptive right to religious exemptions from generally applicable government action). But one enduring question has been whether the Religious Freedom Restoration Act of 1993 should be read as perpetuating Lyng, alongside other Sherbert-era precedents, or should be read as superseding it. (See my Intermediate Questions of Religious Exemptions, pp. 652-56 for more on some related matters.)

In any event, this issue is now up before the Ninth Circuit en banc, which heard argument last week on it in Apache Stronghold v. U.S. (see, e.g., this Deseret News article [Kelsey Dallas]); the panel had ruled, 2-1, against the religious freedom claims, but the Ninth Circuit agreed to rehear the case en banc. My colleague Gene Schaerr at Schaerr | Jaffe LLP, at which I'm a part-part-part-time Academic Affiliate, represents the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, the Sikh Coalition, and Protect The 1st as amici in the case.

In any event, Gene kindly put together an item on the case and the oral argument, which I'm passing along below; I'd be glad to add contrary views as well (and you can see some in the panel majority opinion):

Last week, the Ninth Circuit held a lively en banc oral argument in Apache Stronghold v. United States—a case raising crucial questions of religious freedom law and, most importantly, statutory interpretation.

The case focuses on an indigenous sacred site called Chi'chil Biłdagoteel, or Oak Flat, which has been sacred to Western Apaches since before European contact and remains the site of key religious ceremonies that, according to Apache belief, can't take place elsewhere. The federal government has proposed transferring Oak Flat to a private company for a copper mine, which would swallow the site in a massive crater, ending the Apaches' religious exercises there forever. The question is whether destroying the sacred site and ending the Apaches' religious practices "substantially burdens" their religious exercise under the Religious Freedom Restoration Act (RFRA).

The answer under RFRA's text seems obvious: ending a religious exercise forever "substantially burdens" it. As then-Judge Gorsuch explained, when the government doesn't just penalize a religious exercise, but "prevents the plaintiff from participating in" it—as by not accommodating the practice in prison—the government "easily" imposes a "substantial burden."

At oral argument, however, several Ninth Circuit judges wrestled with whether this commonsense textual argument should carry the day. Their questions centered on three areas of broad significance to the law of religious freedom and statutory interpretation.

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Free Speech

"Preparing for the 20th Anniversary of the Streisand Effect: Cooley v. Afroman"


A very interesting post by Paul Alan Levy (Public Citizen, Consumer Law & Policy Blog), which I reproduce with his permission:

It was almost twenty years ago that Barbra Streisand filed a lawsuit that attempted to block access to a photograph of her oceanfront estate, bringing unwanted attention to the photo and leading to her being enshrined by Techdirt's Mike Masnick in tech/legal terminology as the progenitor of "the Streisand Effect."

Now we have Cooley v. Foreman.

Several police officers executed a search warrant at the home of a musician named Joseph Edward Foreman, who performs under the name "Afroman."  Outraged by what he considered rough treatment of his possessions and the lack of justification for the search, he created two songs about the raid and recorded them in music videos, consisting mainly of footage of the search, entitled "Will You Help Me Repair My Door" and "Lemon Pound Cake"  (to the tune of "Under the Boardwalk"). He also posted images on social media of the officers who conducted the search and printed Tshirts and other merchandise containing photos of the police officers and of the judge who had signed the search warrant, bitterly complaining about the officers' conduct in searching his house and asking that the judge be voted out of office. He promoted these to his fans who, it appears, responded eagerly.

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Administrative Law

Blue-State AGs Have A Mifepristone Lawsuit of Their Own

And this lawsuit faces many of the same administrative law hurdles as does AHM v. FDA.


The Alliance for Hippocratic Medicine's lawsuit seeking to force the Food and Drug Administration to revoke its approval of mifepristone, a widely used abortion medication, has received significant attention. (I've blogged on administrative law issues in the case here and here.) Less attention has been made to a parallel lawsuit filed by Demoratic state attorneys general seeking to force the FDA to move in the opposite direction.

Politico reports:

Lawyers representing the FDA are expected in court on Tuesday to defend the agency's authority to place certain restrictions on mifepristone, which is typically used to end a pregnancy during the first 10 weeks. The case before the U.S. District Court for the Eastern District of Washington was brought by more than a dozen Democratic state attorneys general who say the requirements around the drug, including a certification process for anyone prescribing it, place an undue burden on patients and providers. . . .

Oregon Attorney General Ellen Rosenblum is co-leading the lawsuit with Ferguson, and they are joined by the Democratic attorneys general representing Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island and Vermont.

The pill restrictions, the group claims, are burdensome for both patients and doctors and the documentation requirements put them at risk for harassment or violence.

Interestingly enough, this lawsuit faces some of the same administrative law obstacles as does the AHM suit. As the Justice Department points out in its brief, the state AGs failed to administratively exhaust their remedies before filing suit (such as by filing a petition calling upon the FDA to alter its regulation of mifepristone). Moreover, it is not clear how the state AGs have standing to raise their claims at all. The state AGs' claims that their states are harmed by the maintenance of restricitons on prescribing mifepristone rest on speculative claims about the effect of such restrictions.

Another problem with the state AGs' suit is that it is ostensibly challenging the  mifepristone restrictions adopted by the FDA in January 2023, but those restrictions represented a loosening of the FDA's restrictions on mifepristone. Accordingly, vacating the January 2023 policies would result in the reimposition of those restrictions previously in force, which would be more burdensome and thus do more harm to the interests the state AGs purport to represent.

As I understand it, this lawsuit was filed to try and blunt the impact of AHM v. FDA, either by creating a conflicting court order or nationwide injunction that would keep mifepristone on the market or merely by creating a circuit split on the question. Yet whatever the motivation of the suit, it seems to me it should founder on some of the same administrative law grounds that could frustrate the AHM case.

Free Speech

Court Rejects Idea Theft / "Hot News" Claim by Occasional Fox Guest Against Fox

Bonus: Calling someone a "nut" isn't libel.


From today's Second Circuit decision in Greer v. Fox News Media, by Judges Barrington Parker, Gerald Lynch, and Raymond Lohier:

Steven Eric Greer, proceeding pro se, appeals from a … [judgment] dismissing and denying leave to amend his claims of unfair competition, unjust enrichment, misappropriation of "hot news," defamation, tortious interference with contractual relations and with prospective economic advantage, and intentional infliction of emotional distress against various news organizations and individuals. Greer primarily claims that the defendants used his news tips without compensating or crediting him, and that they also defamed him by "blacklisting" him from the news media industry….

"Section 301 of the Copyright Act expressly preempts a state law claim only if (i) the work at issue 'come[s] within the subject matter of copyright' and (ii) the right being asserted is 'equivalent to any of the exclusive rights within the general scope of copyright.'" … [B]oth unfair competition claims "grounded solely in the copying of a plaintiff's protected expression" and unjust enrichment claims satisfy the general scope requirement.

As to the first requirement, citing Fourth Estate Pub. Benefit Corp. v., LLC (2019), Greer argues that his unfair competition and unjust enrichment claims are not preempted because they concern unprotectable ideas from blogs and emails, rather than reproduced portions of books, and therefore fall outside the subject matter of copyright. We disagree. The subject matter of copyright encompasses ideas expressed in "'any tangible medium,'" including blogs and emails. And although copyright protection "does not extend to an idea," we have explained that where "the ideas that are the subject of the claim were fixed in writing—whether or not the writing itself is at issue—the claim is within the subject matter of copyright" for purposes of preemption. So even if we assume that the "factual content" in Greer's blogs and emails is itself "uncopyrightable," expressing that content in a blog, email, or other tangible medium nonetheless brings it within the subject matter of federal copyright law….

We also affirm the District Court's judgment insofar as it dismissed Greer's misappropriation of "hot news" claim because Greer failed adequately to allege the basic elements for such a claim, namely: (1) that he gathered "time-sensitive" information, (2) that he was in "direct competition" with the defendants, and (3) that the defendants' "free riding" on his efforts to collect information "substantially threaten[s]" the "existence or quality" of his journalism. Nat'l Basketball Ass'n v. Motorola Inc. (2d Cir. 1997).

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crime victims

Adnan Syed's Conviction Reinstated to Protect Crime Victims' Rights

The Appellate Court of Maryland rules that the rights of the victim's family must be respected in any process that could vacate Mr. Syed's conviction—an important precedent that crime victims' rights are enforceable.


Yesterday the Appellate Court of Maryland enforced crime victims' rights in a high-profile case involving Adnan Syed, the subject of the "Serial" podcast. In a 2-1 decision, that Court ruled that the trial court needed to respect the rights of Young Lee, brother of Hae Min Lee (the victim), to have been notified of and to have attended a hearing last September when the trial judge vacated Mr. Syed's conviction for murdering Ms. Lee. This decision is an important milestone, signaling that crime victims' rights are becoming an enforceable part of our nation's criminal justice architecture.

Most readers are aware of the "Serial" podcast, which cast doubt on the reliability of Mr. Syed's convictions in 2000 for (among other things) the 1999 murder of 17-year-old Hae Min Lee. In 2003, the Maryland Court of Special Appeals affirmed his conviction. In 2010, Mr. Syed filed a petition for for post-conviction release, arguing ineffective assistance of counsel. Ultimately, after extended evidentiary and other hearings, the Maryland Court of Appeals affirmed Mr. Syed's conviction. The U.S. Supreme Court denied certioari. At the time, Maryland Attorney General Brian Frosh responded to news of the high court's decision by saying the evidence linking Mr. Syed to Ms. Lee's death was "overwhelming."

Then, several years later, in September 2022, Baltimore State's Attorney Marilyn Mosby filed a motion to vacate Mr. Syed's convictions under Maryland's vacatur statute. The motion argued that prosecutors had failed to disclose evidence to the defendant that other suspects might have been responsible for the murder. That motion was questioned by many observers, who noted that Mosby acted precipitously as she was about to face trial on  federal fraud and perjury charges. (The federal charges against Mosby remain pending; recently her defense attorneys were permitted to withdraw from the case after being accused of violating court rules.) The judge who presided over Mr. Syed's trial also provided an affidavit stating that substantial evidence supported Mr. Syed's conviction. But because the State was moving to set aside Mr. Syed's convictions–and Mr. Syed obvious agreed—it was not clear who was defending the conviction. After a hearing, the Circuit Court for Baltimore City granted the motion.

Ms. Lee's brother, Young Lee, appealed the vacatur, arguing that he (a crime victim's representative) had not been given adequate notice of the vacatur hearing or a meaningful opportunity to be heard on the merits of the vacatur motion. The prosecutor had provided only one business day's notice, via email, to Mr. Lee. Mr. Lee, through counsel, requested a postponement of seven days so that he could arrange to take leave from work and fly from California to be present in the courtroom. The trial court denied the requested postponement but permitted him to give a statement on Zoom—with only thirty minutes to prepare. The Appellate Court concluded this was not adequate notice:

Clearly, notice to a victim in California that there would be a hearing in Baltimore a minute later would not be sufficient to comply with the statutory objectives, a point which Mr. Syed's counsel conceded, appropriately, at oral argument. Similarly, the State's notice here, an email [on Friday] one business day before the hearing on Monday, September 19, 2022, was not sufficient to reasonably allow Mr. Lee, who lived in California, to attend the proceedings, as was his right.

The inadequate notice also interfered with Mr. Lee's right to attend the proceeding, even though he was allowed to participate via Zoom:

We hold that in the circumstance where, as here, a crime victim or victim's representative conveys to the court a desire to attend a vacatur hearing in person, all other individuals involved in the case are permitted to attend in person, and there are no compelling reasons that require the victim to appear remotely, a court requiring the victim to attend the hearing remotely violates the victim's right to attend the proceeding. Allowing a victim entitled to attend a court proceeding to attend in person, when the victim makes that request and all other persons involved in the hearing appear in person, is consistent with the constitutional requirement that victims be treated with dignity and respect.

The Court then considered the appropriate remedy for these violations of crime victims' rights. Read More


Farewell to the Motherland: A Song of Departure

"Flattery is toxic to love / So why, tell me, do you drink poison?"


I thought this would be a good fit with Motherland, by Zemfira, which I blogged two weeks ago. It was originally written by Yevgeniy Kliachkin, about the 1970s Jewish emigration; but this cover is by Boris Grebenshchikov, one of the founding fathers of Russian rock and a major Russian musical figure. Grebenshchikov, a critic of the war, himself recently left Russia, which makes the song especially resonant, I think. Here's a doubtless imperfect translation of the lyrics:

Farewell I say to the country, where
I lived a life, I can't figure out whose
And for the last time, while I'm still here
I drink this air like wine.

But I carry no blame, my land
I'm not the worst of your sons
If you say you must be the center of our love
Let me decide for myself what should be the center

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Several countries use the currency "dinar." Almost all are majority Muslim (e.g., Algeria and Jordan). One is not majority Muslim; what is that country?