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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
26-Year-Old Case Against Smith & Wesson et al. by Gary (Indiana) Finally Over
From Smith & Wesson Corp. v. City of Gary, decided today by Chief Judge Robert Altice, joined by Judges Rudolph Pyle and Mary DeBoer:
More than a quarter century ago [in 1999], the City of Gary (the City) sued various manufacturers, wholesalers, and retailers in the firearms industry (Defendants) for injunctive relief and money damages for the harm allegedly caused by, among other things, the unlawful marketing and distribution of handguns. After three prior appeals, the most recent in 2019, some of the City's claims for public nuisance and negligence survived the pleading stage; other claims were found to be barred by Ind. Code § 34-12-3-3 (the Immunity Statute), which was amended in 2015 to make it retroactive to a date just before the City's lawsuit against Defendants began. See City of Gary v. Smith & Wesson Corp. (Ind. Ct. App. 2019) (Gary 3).
While the case remained pending in the trial court on remand after Gary 3, the Indiana General Assembly passed House Enrolled Act No. 1235 (HEA 1235) and declared it an emergency, making it effective immediately upon the Governor's signature on March 15, 2024. This new legislation is codified at I.C. § 34-12-3.5-3 (the Reservation Statute) and provides, with few exceptions not applicable here, that "only the state of Indiana may bring or maintain an action by or on behalf of a political subdivision against a firearm or ammunition manufacturer, trade association, seller, or dealer[.]"
The court concluded that the statute was constitutional (contrary to the view of the trial court), and ordered that the City's lawsuit should therefore be dismissed. Some excerpts from the long opinion:
[1.] The Reservation Statute is not unconstitutional special legislation.
No Trademark Infringement Liability Based on Use of a Political Slogan ("Proven Problem Solver")
From Judge André Birotte (C.D. Cal.) in Cloobeck v. Villaraigosa, decided Dec. 8 but just posed on Westlaw:
This action arises out of the 2026 California gubernatorial election and the use of the phrase "PROVEN PROBLEM SOLVER." … Cloobeck's First Amended Complaint (FAC) alleges as follows:
Cloobeck and Villaraigosa [were at the relevant time] both candidates in the 2026 California gubernatorial race. Cloobeck has been using the phrase, "I AM A PROVEN PROBLEM SOLVER," (the "Senior Mark") in connection with his gubernatorial campaign since March 2024…. On December 12, 2024, Cloobeck filed an application to register the Senior Mark with the U.S. Patent and Trademark Office ….
Months after Cloobeck's first use of the Senior Mark in connection with his 2026 California campaign, Villaraigosa began using the phrase "PROVEN PROBLEM SOLVER," (the "Infringing Mark") in connection with his campaign. Villaraigosa displayed the Infringing Mark publicly including on his website and social media accounts….
Cloobeck sued, but the court disagreed:
Journal of Free Speech Law: "The Curious Case of Benjamin Gitlow," by Ronald K.L. Collins
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law.
The article is here; the Introduction:
This is a story about a man with incredible luck. It was made possible by some remarkable lawyers and judges, and it ended unpredictably. It is the story of Benjamin Gitlow (1891–1965), a man who loved a freedom others feared. It is also a short story about a segment of the history of the First Amendment, a history that Gitlow v. New York (1925) helped to shape. Curious then that the same man who first fought for freedom later fought to suppress it—he was intolerant of those with opposing opinions. In time, his turncoat stripes would reveal his true colors, which made his life story all the more curious. Moral: We take our free speech heroes as we find them, warts and all.
Not Tortious to Post YouTube Video That Includes Conversation with Homeless Man
From the long opinion by Chittenden County (Vermont) Judge Colin Owyang in Doe v. Deluca, decided Dec. 15 but posted on Westlaw a few days ago (an appeal is pending):
On March 18, 2025, DeLuca recorded a 29-minute video that included Doe and others standing in public view outside a homeless shelter and warming center on Pearl Street in Burlington. An approximately two-minute portion of that video captures Doe speaking and apparently recording or attempting to record DeLuca on Doe's cell phone. The video shows other people closer to Doe than DeLuca who remains on or near the public sidewalk. Doe speaks to DeLuca who does not respond. DeLuca turned Doe's speaking portion of the video into a YouTube "short" video. DeLuca posted both videos to his YouTube channel, for commercial profit according to Doe. Doe never gave DeLuca consent to record him or use his image….
The court rejected Doe's intentional infliction of emotional distress claim:
Doe has alleged that (1) DeLuca's "act of recording a vulnerable, homeless individual and exploiting their image for profit, without consent, can be considered outrageous and intolerable," and (2) DeLuca's "actions have caused the plaintiff, Jonn Doe, severe emotional distress, including anxiety and PTSD." ….
"Vermont recognizes the tort of intentional infliction of emotional distress. To prevail, plaintiff must demonstrate 'outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct.'" "To satisfy the IIED standard, "[p]laintiff[] bear[s] 'a heavy burden that requires … show[ing] that the [defendant's] conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a civilized community and be regarded as atrocious and utterly intolerable.'" …
The videos show DeLuca recording a group of people in public view, including Doe. DeLuca speaks in a conversational tone at the intended audience of his videos, not to Doe or the people around him. Doe speaks to DeLuca and appears to record DeLuca on Doe's phone. Throughout the exchange, DeLuca remains on or near the public sidewalk and several other people appear physically closer to Doe than DeLuca, contextualizing that DeLuca maintained socially appropriate physical distance from Doe during the recording.
This court holds that a now commonplace occurrence like DeLuca's recording by cell phone of Doe in public and posting it online without more does not constitute as matter of law the sort of objectively outrageous conduct required for an IIED claim….
The court likewise rejected plaintiff's right of publicity / commercial misappropriation of identity claim:
"From Plaintiff's Astonishingly Verbose Complaint, … the Court Was Able to Extract the Following Relevant Facts":
A short excerpt from Chief Judge Sara Lioi's long opinion Tuesday in Deters v. Barrett (S.D. Ohio); the plaintiff is apparently a frequent political candidate, a YouTube commentator, and an attorney who retired after having been suspended (see also this Ohio S. Ct. opinion):
Plaintiff Eric Esquire Deters ("plaintiff"), who claims to be a retired attorney, filed this action pro se against several judges and a state legislator for alleged unlawful conduct implicating plaintiff's medical malpractice litigation on behalf of his clients…. [P]laintiff's pleading suffers from various threshold deficiencies that preclude consideration on the merits and require dismissal. As detailed below, plaintiff's legal claims fail to invoke the Court's subject matter jurisdiction. His asserted claims do not meet the requirements of Article III standing. Moreover, many claims are either barred by an applicable immunity or are patently and utterly implausible. The complaint also fails to comply with the pleading requirements of Fed. R. Civ. P. 8(a)(2). And plaintiff's recently filed amended complaint was filed in violation of the time limits established in Fed. R. Civ. P. 15(a)….
It is not the role of the Court to "search the record and construct arguments[;] [p]arties must do that for themselves." … Beyond peppering the complaint with extraneous and irrelevant material, plaintiff has also improperly used his pleading to launch personal attacks on defendants and others. Throughout the complaint, plaintiff offers opinions of defendants and their associates untethered to the facts of the case and laced with abusive and charged language. For example, plaintiff alleges that "Defendants' treatment of the Durrani victims and [him]self is the evil and insidious performance of scoundrels." He gratuitously adds that "based upon the Defendants' conduct, no more repugnant human beings have ever served on the judiciary and…the legislature." Continuing this train of thought, plaintiff charges that "[t]he Defendants, like the Devil, rationalize all their sins. The Defendants have unquenchable thirst to fulfill their scheme with their very souls for sale." He concludes by opining that "hell awaits the Defendants and their co-conspirators." {With respect to one individual defendant, plaintiff adds "I hate her. I loathe her. And the world knows why."}
"Legal pleadings are no place for demeaning and derogatory comments, [and] personal insults[.] They bring public scorn on the legal profession and the judicial system." No matter how strongly plaintiff believes that his former clients have been wronged, such abusive language has no place in any litigation. Plaintiff is hereby admonished for his unprofessional attacks upon defendants. Should he find himself in federal court in the future, plaintiff would be wise to confine his filings to proper allegations and arguments.
Ultimately, the Court finds that plaintiff's complaint is anything but a "short and plain statement" showing entitlement to relief. Fed R. Civ. P. 8(a)(2). To attempt to understand plaintiff's legal claims, the Court was required to parse through a convoluted litany of grievances, irrelevant information, personal attacks, and conclusory allegations against defendants. Such verbosity is unacceptable. Plaintiff, as a former practicing attorney, should be aware of the rules of federal procedure and should draft pleadings that conform to these strictures. It is not the Court's obligation to unravel the allegations and construct claims against defendants on behalf of a plaintiff….
Here's the factual backstory, also from the opinion:
Today in Supreme Court History: December 29, 1971
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Today in Supreme Court History: December 28, 1856
12/28/1856: President Woodrow Wilson's birthday. His administration would initiate the prosecutions under the Sedition Act that gave rise to Schenck v. U.S., Debs v. U.S., and Abrams v. U.S.
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Today in Supreme Court History: December 27, 1771
12/27/1771: Justice William Johnson's birthday.
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Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Citizen flag poles, mega-appeals, and land acknowledgments.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: Starting in 2011, then-16-year-old Hamdi Mohamud spent over two years in prison on bogus charges fabricated by a St. Paul police officer. Which is a bang-on Fourth Amendment violation, but the Eighth Circuit has twice held Hamdi has no cause of action because the officer (still employed and making six figures) was cross-deputized onto a federal task force. IJ is asking the Supreme Court to resolve some circuit splits and let the case go forward.
New on the Short Circuit podcast: When the gov't takes your long walk on the beach.
- The holidays are a time to be together with family. But when family togetherness grows too much—when Uncle Lou starts to explicate his views on politics or your wife's cousin tries to sell you magnets—you can always say, "I'm sorry, but I simply must go read the First Circuit's 96-page resolution of a 'mega-appeal' arising out of a sprawling overtime-fraud scheme within the Massachusetts State Police."
- Nashua, N.H. officials establish a "citizen flag pole," on which locals can fly all sorts of different flags. Except that one. Or that one. Or that one. First Circuit: And because the flags were not gov't speech, the town's viewpoint discrimination was unconstitutional. Read More
Discrimination and Defamation Claim Stemming from Firing Based on Allegedly Racist Conduct Can Go Forward
Birch v. John Muir Health, decided Tuesday by California Court of Appeal Justice Carin Fujisaki, joined by Alison Tucher & Ioana Petrou, stems from JMH's firing Birch "based on Birch's purported violations of JMH's polices against harassment and discrimination." The trial court granted summary judgment for JMH on Birch's claims for, among other things, discrimination and defamation, but the appellate court reversed. An excerpt from the long opinion:
In March 2003, Birch, a Filipina woman, began working for JMH as a registered nurse. Two years later, after earning a certificate in wound and ostomy care, she worked full-time on JMH's Skin Wound Assessment Team ("SWAT")…. From 2017 to 2019, Birch consistently received favorable performance reviews, with managers acknowledging her as a "subject matter expert" who exhibited passion, dedication, teamwork, and strong leadership skills….
In June 2019, Rachel Daniels ("Daniels"), a Black woman, began working as a per diem nurse on JMH's SWAT team. Daniels and Birch occasionally worked shifts together at the Concord Medical Center and initially enjoyed an amicable working relationship. [But the relationship soured in early 2020; for more details on the factual backstory, see the opinion. -EV]
The Court of Appeal held that Birch's discrimination claim can go forward:
Birch asserts there was a triable issue of fact as to whether JMH's termination of her employment was based on JMH treating Daniels more favorably because Daniels was Black. More particularly, Birch contends that even though she and Daniels were similarly situated, experienced mutual difficulties working together, and were both arguably in violation of JMH's core values and HR policies, Birch was the only one who was disciplined and terminated. Viewing the evidence in the light most favorable to Birch as the party opposing summary judgment, we agree there is sufficient evidence to raise a triable issue of fact as to JMH's alleged discriminatory treatment….
"[T]he First and Fifth Amendments Require ICE to Provide Information About the Whereabouts of a Detained Person"
ICE Salt Lake City apparently isn't answering its phone.
From Reyes v. U.S. ICE, decided Wednesday by Judge Tena Campbell (D. Utah) (note that the government has not yet appeared to tell its side of the story):
Before the court is a Motion for Temporary Restraining Order filed by Plaintiffs Esggar Reyes and Frederico Reyes Vasquez. Mr. Reyes Vasquez was arrested by Defendant United States Customs and Immigration Enforcement (ICE) on December 19, 2025. His son, Mr. Reyes, asserts that despite multiple efforts, he has been unable to reach ICE to obtain any information about his father's detention. Specifically, Mr. Reyes maintains that his counsel, Alec S. Bracken, attempted to call the Salt Lake City ICE field office on the number listed on ICE's website—i.e., (801) 736-1200—but that the phone automatically disconnected.
In the meantime, Mr. Bracken filed a petition for habeas corpus on behalf of Mr. Reyes Vasquez. That petition is now pending before the Honorable Jill N. Parrish. Judge Parrish ordered that Mr. Reyes Vasquez should not be transferred outside the District of Utah and set a hearing for the petition for Wednesday, December 31, 2025. Despite that order, Mr. Bracken asserts that Mr. Reyes Vasquez may have been removed from the United States on December 23, 2025.
Late yesterday, Mr. Bracken filed a complaint and a motion for a temporary restraining order in the above-captioned action. Through counsel, Mr. Reyes and Mr. Reyes Vasquez argue that ICE's failure to maintain a functioning method for communication is a violation of the Fifth Amendment's due process guarantee, the First Amendment's right to petition, and the Administrative Procedure Act (APA). The Plaintiffs move the court to enter an order directing the Defendants to reconnect ICE's public inquiry phone line, to schedule a prompt hearing, and to grant any other relief the court deems just and proper….
Journal of Free Speech Law: "Representing Benjamin Gitlow: Charles Recht and Walter Nelles," by Eric Easton
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law.
The article is here; the Introduction:
As we celebrate the 100th anniversary of Gitlow v. New York, it is only natural that we focus on the landmark presumption of incorporation in the majority opinion and the dissenting opinion that would foreshadow today's incitement standard. But perhaps we can spare a moment to consider the dedicated lawyers who represented Gitlow and his fellow radicals throughout the process. That their efforts, at least in the short term, were largely futile is certainly attributable to the historical moment and the prevailing interpretation of the First Amendment, not to any lack of competence or commitment on their part.
Indeed, the lawyers who represented Benjamin Gitlow were among the best of a small cadre of lawyers who represented leftist radicals of various persuasions in the early 20th Century. Some, like Clarence Darrow, would achieve great fame in their own time; others, most in fact, would labor in relative obscurity and are largely forgotten today. And while all were dedicated to their radical clients, their backgrounds, career paths, and personal motivations could be quite different. This article will profile two of Gitlow's lawyers, Charles Recht and Walter Nelles. Both were involved from the earliest stages of Gitlow's representation, although only Nelles played a significant role in the U.S. Supreme Court proceedings. Along the way, we will encounter Darrow, Walter Pollak, and others who made substantial contributions to the Gitlow litigation.
In examining the representation of Benjamin Gitlow, let us keep in mind the various interests that powered it. Fundamental, of course, is the interest that all criminal defense lawyers have in the acquittal of their clients. But then some lawyers and clients may have political or personal interests that color their litigation strategy and tactics. And some may have philosophical or ideological goals that transcend mere acquittal and seek to alter the legal landscape as much for the future as the present. All of these factors are present in the Gitlow representation.
Trial Court Had Ordered Mother to Only Call Son by First Name (Javier), not Middle Name (Reece), in Public
But the Colorado Court of Appeals just reversed that, in part on First Amendment grounds.
From In re Marriage of Teruel De Torres, decided Wednesday by the Colorado Court of Appeals (Judge Sueanna Johnson, joined by Judges Craig Welling and Lino Lipinsky de Orlov):
In this post-dissolution of marriage proceeding involving Jocelyn Javernick (mother) and Juan Javier Teruel De Torres (father), mother appeals the district court's December 22, 2023 order (December 2023 order), which … determined that … the parents may only refer to the child … as "Javier" or "Javi" (and not his middle name, "Reece") in … public settings.
The court dissolved the parents' marriage in May 2020. The parents have one child, who was born in September 2018. The child's full legal name is Javier Reece Teruel. During the dissolution proceedings, mother requested that the child's name be changed to Reece Teruel Javernick, claiming that the parents had called him Reece since birth. Father objected, arguing that mother was trying to distance the child from him by changing the child's name, particularly as the child shares father's first name….
Were Statements in Roblox Chats About "Deal[ing] a Grievous Wound upon the Followers of the Cross" True Threats of Violence?
No, a district court held earlier this month, because they were made "while playing an online video game, speaking as a character, among other players who were similarly acting as characters in a virtual Church."
From Judge Alan Albright (W.D. Tex.) in U.S. v. Burger earlier this month:
A three-count indictment alleged that Defendant James Wesley Burger violated 18 U.S.C. § 875(c) by making unlawful interstate-threatening communications ("the threatening communications") on Roblox—an online video game platform that allows players to create their own "experiences" or "games" on public or personal servers and to disseminate those games to other players. The threatening communications were made in a popular Roblox experience called "Church," which had logged 20 million visits at the time it was taken down after Mr. Burger's arrest.
To play Roblox, players would create an avatar, choosing its physical appearance and clothing. Upon entering "Church," the avatar would find a space with rows of pews and a pulpit. The Church experience provided a venue where the avatars could exist, walk around, observe, and if they chose, interact. Some players engaged in role-play, including arguments and "trolling," intentionally engaging in distasteful debate and attempting to be edgy and anger others. Some Roblox players dressed their avatars as "Middle East terrorists" and discussed "violent Jihadism."
In the context of Roblox's Church environment, Mr. Burger made multiple disturbing statements, including: (Count 1) threats to "deal a grievous wound upon the followers of the Cross;" (Count 2) "I've come to conclude it will be the 12 of Shawwal aa/And it will be a music festival/Attracting bounties of Christians/In'shaa'allah we will attain martyrdom/And deal a grievous wound upon followers of the cross/Pray for me and enjoin yourself to martyrdom;" and (Count 3) "I have guns In[]case the authorities want to arrest me … I am ready to sacrifice my life for my Rabb….[The Defendant would] Detonate what I've prepared Of munitions And use my firearms To take many with me," and "Yes wish me luck on the path of martyrdom In'shaa'allah."
The court ordered that the indictment be dismissed, on the grounds that the speech didn't fit within the "true threats" exception for First Amendment protection:
Defendant made the statements at issue while playing an online video game, speaking as a character, among other players who were similarly acting as characters in a virtual Church. The Government would need to convince the jury that Mr. Burger, while typing as his character, making statements to the other online characters, in a fictional game understood as such by all participants, created a substantial risk his communications would be understood as a threat by other Roblox players. There is no showing that Mr. Burger recklessly disregarded the risk that other online characters, also playing a game, would see his fictional character's statements and understand them to be a true threat.
