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Second Amendment Roundup: The U.S. defends NFA restrictions lacking a tax nexus
The DOJ claims basis in the tax power and the commerce clause, and no Second Amendment problem.
As I previously explained in "The Zero Tax on NFA Firearms," serious constitutional issues arise about the constitutional validity of the registration and other requirements of the National Firearms Act as to the firearms that now have a $0 tax. They include short barreled shotguns (SBSs), short-barreled rifles (SBRs), silencers, and "any other weapons" (AOLs). Machineguns and destructive devices remain subject to the $200 making and transfer tax.
Three challenges are pending, Chris Brown v. ATF in the Eastern District of Missouri (see docket here), Silencer Shop Foundation v. ATF in the Northern District of Texas (see docket here), and Jensen v. ATF also in the Northern District of Texas (see docket here).
In Silencer Shop, in response to plaintiffs' motion for summary judgment, the United States has filed its opposition and cross-motion for summary judgment. The United States contends that the NFA regulations as applied to the zero-taxed firearms remain justified under Congress's tax power, as they support the collection of the special occupational taxes on firms engaged in the business of manufacturing and selling NFA firearms. They are also justified under the Commerce Clause, as the related activities in intrastate commerce substantially affect interstate commerce. Finally, DOJ argues that the Second Amendment does not protect NFA firearms, including suppressors, because they are "dangerous and unusual."
Article I Tax Power
As to the tax power, Sonzinsky (1937) upheld the NFA special occupational taxes (SOT) applicable to NFA businesses. That part of the NFA remains intact. The government argues that the zero-taxed making and transfer requirements of the NFA remain valid so the government may ensure that NFA businesses are paying their SOT.
But like any other regulated industry, the government knows whether applicable restrictions are followed by inspections, investigations, and other procedures. Under Title I of the Gun Control Act, firearm businesses are required to have licenses, and they are subject to inspection for compliance with regulations. Those engaged in the business of making or selling firearms without a license are prosecuted under the GCA. However, firearms bought by non-licensees from FFLs are not subject to licensing and are not required to be registered and regulated for eternity so that the government can keep track of those requiring a license. In fact, 18 U.S.C. § 926(a) of the Gun Control Act actually prohibits the registration of firearms that are sold to non-licensees.
Consider the implications of the government's expansive conception of the tax power. A federal excise tax is imposed on the manufacture of sport fishing equipment. Would it be a necessary and proper exercise of Congress's Article I power to raise revenue to require every transfer thereafter, none of which are taxable, to be approved by the government to determine whether the excise tax had originally been paid by the manufacturer?
Or, hypothetically, could Congress require all grocery stores to pay a special occupational tax and, in turn, require all Americans who purchase groceries to register their groceries with the federal government -- all in the name of ensuring that grocery stores paid their own special occupational tax? That would be absurd. Yet, this is essentially what the government is arguing here to justify the registration and fingerprinting requirements of firearms which are subject to the $0 tax.
The government's position in this litigation belies its recognition elsewhere that a firearm not subject to taxation is not subject to the NFA. In 18 U.S.C. § 922(o), Congress banned possession of machineguns made after May 19, 1986. ATF then refused to accept tax payments for and to register such machineguns. U.S. v. Rock Island Armory (C.D. Ill. 1991) held that no constitutional basis existed for the registration requirement and dismissed an indictment for unregistered machineguns under the NFA. (Disclosure: I was counsel for the defendant.) U.S. v. Dalton (10th Cir. 1992) was in accord.
Thereafter, the United States conceded the point: "The United States agrees that the foregoing decisions [Dalton and Rock Island] are persuasive and should control the disposition of this appeal, and … [defendant's] conviction under 26 U.S.C. § 5861(d) should be vacated." Joint Motion for Remand, U.S. v. Kirk, No. 91-8418, motion granted (5th Cir. April 28, 1992) (indictment under NFA for post-1986 machinegun).
Based on the above, the United States Attorneys' Manual instructed then and continues to instruct today:
As a result of the enactment of 18 U.S.C. § 922(o), the Secretary of the Treasury no longer will register or accept any tax payments to make or transfer a machinegun made after May 19, 1986. Accordingly, because it is impossible to comply with the registration and taxation provisions in the NFA, prosecutors should charge the unlawful possession or transfer of a machinegun made after May 19, 1986 under § 922(o).
In other words, federal prosecutors should charge the unlawful possession of post-1986 machine guns under the GCA and not under the NFA. Why? Because there is no Article I tax basis for such an NFA prosecution.
Indeed, the premise of this U.S. Attorneys' policy is that lack of any tax nexus thereby undercuts the basis of requiring registration. That applies directly to the current NFA litigations here – the zero tax on certain NFA firearms has removed the constitutional basis of the NFA's making and transfer provisions as to those firearms. (It goes without saying that § 922(o), which bans mere possession of a machinegun without a commerce nexus being an element of the offense, has its own constitutional problems. See my article The Power to Tax.)
Commerce Clause
In Silencer Shop, the government next contends that the NFA's restrictions on non-taxed firearms are constitutional under the Commerce Clause. It argues that Lopez (1995) does not apply. Lopez invalidated the Gun Free Schools Act's ban on possession of a firearm at a school as having no basis in the Commerce Clause. Instead, DOJ argues that the upholding of federal restrictions on the local cultivation of marijuana upheld in Raich (2005) under the Commerce Clause applies to the NFA's requirements on the untaxed making and transfer of firearms.
Since most firearms are produced and sold interstate by federally-licensed dealers, the government argues, the intrastate making and transfer by non-licenses thereafter may be subject to the NFA as a regulation of commerce.
For that it cites U.S. v. Ardoin (5th Cir. 1994), which held that "although the NFA was originally upheld under Congress's taxing power, no one could seriously contend" that the Act "could not also be upheld under Congress's power to regulate interstate commerce." But the government ignored the Fifth Circuit's distinguishing of Ardoin in Texas v. U.S. (2019) as follows:
But the taxing power was "preserved" in Ardoin because it was non-revenue-producing only in practice whereas the "tax" here is actually $0.00 as written on the books…. Expanding Ardoin to apply here would, as the federal defendants point out, puzzlingly allow Congress to "prohibit conduct that exceeds its commerce power through a two-step process of first taxing it and then eliminating the tax while retaining the prohibition."
While National Federation v. Sebelius (2012) reversed Texas for lack of standing, it rejected the Commerce Clause as the basis for Obamacare and upheld it under the power to tax, recalling Sonzinsky and noting that "the breadth of Congress's power to tax is greater than its power to regulate commerce."
It is noteworthy that in U.S. v. Hall (1999), the Eighth Circuit – where the Brown challenge is pending – held that the NFA registration requirement "cannot be sustained under the commerce clause," but followed Sonzinsky in holding that "the 'registration provisions … are obviously supportable as in aid of a revenue purpose.'"
And, of course, a quick review of pattern jury instructions and of the relevant NFA statute that would be deployed to prosecute someone for violating the non-registration requirements of the NFA do not include an essential criminal element of "interstate commerce" or "foreign commerce." In other words, DOJ's argument based upon Article I's Commerce Clause cannot save the challenged NFA law because there is no statutory hook to that Clause. If Congress wished to add an "interstate commerce" element to that crime, then perhaps doing so would save such a hypothetical statute from a constitutional challenge. By asking a federal court to rewrite the NFA to include a "commerce clause" element would force a judge to engage in lawmaking, which is the province of the Congress.
Second Amendment
Finally, the government in Silencer Shop turns to the Second Amendment, arguing from Miller and Heller that short-barreled shotguns (SBSs) are not protected and that short-barreled rifles (SBRs) are not "materially distinguishable from" short-barreled shotguns. But the argument for restricting SBSs has always been that they fire multiple rounds of shot through a smooth bore, whereas SBRs – like handguns and long-barreled rifles – are designed to fire a single projectile through a rifled bore. As I show in The Power to Tax, SBRs were inserted into the 1934 NFA bill when pistols and revolvers were still in the bill, and the point was to prevent smaller rifles from being considered "any other concealable weapon." When pistols and revolvers were removed from the bill, it made no sense to retain SBRs – middle-sized rifled arms – in the bill.
The government throws in dicta from the plurality opinion in Thompson/Center Arms that an SBR is "a concealable weapon" "likely to be used for criminal purposes." Not so. As the 1986 Wright-Rossi study demonstrated, "sawed-off" rifles are the least likely type of firearm to be used in violent crime. Handguns, of course, top the list as recognized by the Supreme Court in Heller.
The government further suggests that NFA firearms in the "any other weapon" (AOW) category also lack Second Amendment protection. They include smooth-bore handguns, which cannot fire bullets accurately, but handguns with rifled bores are excluded from the AOW category. Some smooth-bore handguns can fire the diminutive .410 shot shell, making them allegedly "not typically possessed by law-abiding citizens for lawful purposes." Well guess what, a number of handguns with rifled bores can also fire the .410 shell, and they are not NFA firearms.
As the government notes, in U.S. v. Peterson (2025) the Fifth Circuit upheld "the NFA's shall-issue licensing regime" for silencers as consistent with the Second Amendment under Bruen. While footnote 9 of Bruen cited the overwhelming number of shall-issue state licensing laws for carrying handguns, it is a leap to justify registration laws from that footnote. As then Judge Kavanaugh wrote in his Heller II dissent, "Registration of all lawfully possessed guns – as distinct from licensing of gun owners or mandatory record-keeping by gun sellers – has not traditionally been required in the United States and even today remains highly unusual." Moreover, "registration requirements are often seen as half-a-loaf measures aimed at deterring gun ownership."
Finally, the government argues generally that the NFA restrictions at issue are "consistent with this Nation's historical tradition of firearm regulation," under the tradition of "prohibit[ing] the carrying of 'dangerous and unusual weapons.'" For that, it cites state cases, such as Wilson v. State (Ark. 1878), that concerned restrictions on the carrying – not the possession – of certain firearms.
Moreover, because the "dangerous and unusual" standard arises from the historical tradition of firearms regulation considered by courts only after an initial finding that an object is an "arm" under the Second Amendment's plain text, the government bears the burden of demonstrating here that the $0-taxed firearms are "dangerous and unusual." The DOJ's brief made virtually no effort to satisfy this burden beyond a few legal citations.
In the Brown case, the plaintiffs' motion for summary judgment may be viewed here. The United States is scheduled to file its combined opposition to plaintiffs' motion and its own cross-motion for summary judgment by December 17, 2025. In the Jensen case, the plaintiffs' motion for summary judgment may be viewed here.
A Second Round with William Barr on Litigation Over Interstate Pollution
Whatever the merits of climate tort suits (or lack thereof), the argument they are preempted does not hold up.
After I responded with a letter to the editor to William Barr's Wall Street Journal op-ed arguing that state-law-based tort suits against fossil fuel companies seeking redress for climate-related harms are preempted, Barr responded with a letter of his own, to which I offered a sur-reply. Here is a quick review of the argument, with some additional commentary.
In his initial op-ed, Barr argued that "disputes involving pollution that crosses state or international borders are the exclusive domain of federal law." My letter (and accompanying blog post) pointed out that this was wrong, noting the Supreme Court's decision in International Paper v. Ouellette in which the Court held that such suits are not preempted, but that common law nuisance suits over interstate pollution must apply the law of the source state, not that of the polluted plaintiff.
In his reply, Barr sought to argue that I "misread" Ouellette, writing:
In response to my op-ed on climate-change tort suits, he invokes International Paper Co. v. Ouellette (1987) to suggest that states may regulate out-of-state emissions unless doing so is "incompatible" with federal law. But Ouellette reinforces my position.
The court held that the Clean Water Act pre-empts states from applying their own pollution law to an out-of-state source, since subjecting one source to multiple state laws would create a "chaotic confrontation" and undermine the federal regulatory structure.
What Barr's letter elides is that while Oullette prevents a state or its residents from applying their state's law to out-of-state polluters, it expressly held that suits over such suits are not preempted, but may continue. As I noted in my sur-reply letter:
hile he is correct that the court in International Paper Co. v. Ouellette (1987) "held that the Clean Water Act pre-empts states from applying their own pollution law to an out-of-state source," it further held that "nothing" in federal law precluded "aggrieved individuals from bringing a nuisance claim pursuant to the law of the source State."
In other words, such suits may proceed and aren't pre-empted by federal law. This is precisely what happened in Ouellette. After the court's decision, the case proceeded to trial on remand, the plaintiffs presented their case and International Paper settled, agreeing to pay substantial compensation.
So there is no mistake, Ouellette rejected Barr's initial claim that "disputes involving pollution that crosses state or international borders are the exclusive domain of federal law." It did not preempt such suits, but rather set the terms under which such suits can proceed. The Ouellette case itself is a case in point, as the plaintiffs were allowed to pursue their claims against interstate air and water pollution on remand.
The point of Barr's initial op-ed was to encourage the Supreme Court to grant certiorari in Suncor Energy v. County Commissioners of Boulder County, the most recent state-law-based climate tort suit brought before the Court.
Thus far, the justices have shown little interest in wading into climate tort litigation, despite repeated entreaties to do so. I suspect one reason for this is the fundamental weakness of the substantive argument, combined with the preliminary posture on which these cases have been brought. While there is an ostensible circuit split, insofar as the U.S. Court of Appeals for the Second Circuit swallowed the preemption arguments and several state courts have not, this has not yet been enough to convince four justices to support certiorari.
Even if the justices ultimately vote to grant cert, precluding state climate litigation altogether will remain a heavy lift under current law. Insofar has Congress has the constitutional authority to preempt litigation of this sort, it has not enacted any law that would do so, and I will be surprised if the Court ultimately says otherwise.
As my second letter concluded:
It is the job of the judiciary to say what the law is, not what it should be. If Mr. Barr believes state-law-based climate litigation should be pre-empted, he should encourage Congress to enact a law that does so.
Federal Trade Commission Staff Endorses Proposal to End American Bar Association Monopoly on Law School Accreditation
FTC staff support the proposal by the Texas Supreme Court to allow for alternative means of accreditation.
The American Bar Association's de facto monopoly on law school accreditation took another hit this week as the directors of the Federal Trade Commission's Office of Policy Planning and Bureau of Competition endorsed a proposal by the Texas Supreme Court to allow alternative means of accreditation.
This endorsement came in a nine-page letter to the Texas Supreme Court released with the approval of both currently serving FTC Commissioners.
The letter reads in part:
we endorse the Proposed Amendment and commend that it would eliminate the current rule's delegation of authority to the American Bar Association (ABA). The ABA should not serve as a gatekeeper to a critical aspect of admission to the legal profession. Such control by the ABA is inimical to the principles on which competition law rest. The ABA is dominated by practicing attorneys, who have strong interests in limiting competition for legal services. As such, the current rule raises serious competitive risks by so broadly delegating to the ABA the state's authority to set eligibility requirements for admission to the Texas bar. It effectively gives the ABA, an organization that has previously flouted the rule of law it purports to promote, the ability to exclude market participants who would compete with its members. We encourage the Court to reclaim its authority to expand opportunities for qualified individuals to provide legal services to the Texas public as envisioned by the Proposed Amendment.
It concludes:
The ABA should no longer have "the final say on whether a law school's graduates are eligible to sit for the Texas bar exam."49 The ABA's standards for accreditation appear to go far beyond what is reasonably necessary to assure adequate preparation for the practice of law in Texas, increasing the cost of a legal education. The current rule therefore likely causes Texas to forgo admitting many potentially qualified lawyers who could provide needed legal services to the Texas public.
The Proposed Amendment is an important step in weakening the ABA's enduring monopoly and resulting power to impose costly, overly burdensome law school accreditation requirements. It is no coincidence that in its 1995 lawsuit challenging the ABA's anticompetitive conduct, the DOJ stressed that the ABA's power over law schools comes, in part, from state mandates: "ABA approval is critical to the successful operation of a law school" because the "bar admission rules in over 40 States require graduation from an ABA-approved law school in order to satisfy the legal education requirement for taking the bar examination."50 Thirty years later, little has changed yet. The Proposed Amendment is a laudable first step. We commend the Texas Supreme Court for its initiative to disrupt the anticompetitive status quo and encourage other states to take similar steps.
FTC Chairman Andrew Ferguson also commented on the proposal in this Twitter thread.
I discussed the potential end of the ABA's accreditation monopoly here. Derek Muller analyzed the Texas proposal here. Civitas Outlook sponsored a symposium on the Texas Supreme Court's proposal here.
Solicitor General Urges Review of FIFRA Preemption
The Department of Justice sides with Monsanto on whether federal law preempts state-law duty-to-warn suits against pesticide manufacturers setting up an important test of the Court's view of federal preemption.
Earlier this year the Supreme Court called for the views of the Solicitor General on whether it should grant certiorari in Monsanto v. Durnell, which presents the question whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state-law-based "duty to warn" suits against manufacturers of pesticides registered by the Environmental Protection Agency (EPA). The case arises out of litigation over Monsanto's Roundup pesticide and its active ingredient, glyphosate.
Yesterday, the Solicitor General filed its brief, urging the Court to grant certiorari in Durnell. The brief supports Monsanto's position both on the merits (concluding that FIFRA registration does preempt such claims) and that there is a circuit split warranting the Court's review. While the latter point may be more important to the justices (there is a split among the U.S. Courts of Appeals for the Ninth, Eleventh, and Third Circuits), the bulk of the brief is devoted to explaining why the Justice Department believes FIFRA preempts such claims. Should the Court grant certiorari, it is fairly clear what position the Solicitor General's office will take.
The brief is consistent with the the Trump Administration's pro-preemption perspective in other environmental contexts, such as climate litigation. On the other hand, it may conflict with the preferences of MAHA-types within the Administration. Secretary of Health and Human Services Robert F. Kennedy Jr. has both been a critic of Roundup and has supported litigation against Monsanto.
Assuming certiorari is granted in this case (and I suspect it is likely), it will provide additional clarity on the current Court's view of preemption questions. While it is common to think that conservative justices are likely to be pro-preemption because they are generally supportive of the business community, the Court's current conservatives are actually split on such questions, largely due to federalism concerns (see, e.g., the 3-3-3 split in Virginia Uranium). This is one reason I have argued that, while Trump's appointments to the Court have made it more conservative, it is not at all clear that they have made the Court more "pro-business."
Geese, Ganders, and Pterodactyls: Amicus Brief in Fifth Circuit En Banc Rehearing of West Texas A&M Drag Ban Case
From a brief filed yesterday by Joshua J. Bennett (Baker & Hostetler LLP) on behalf of Dale Carpenter, the Cato Institute, and me in Spectrum WT v. Wendler (for the panel majority and dissent, see here):
Summary of Argument
When the government operates a place or program that allows a wide range of private speech, it may not discriminate among speakers or groups based on their viewpoints. That is true even when the place or program is a limited public forum or nonpublic forum rather than a traditional or designated public forum. The panel majority correctly held that (1) the canceled drag show was speech protected by the First Amendment, and (2) President Wendler violated the First Amendment when he cited the show's "objectionable message" (alleged sexism) to justify its cancelation and without trying to satisfy strict scrutiny. That second conclusion holds true no matter how the forum (Legacy Hall) is classified, whether as a designated public forum, as the panel held; a limited public forum (as the panel dissent argues, Spectrum WT v. Wendler, 151 F.4th 714, 738 (5th Cir. 2025) (Ho, J. dissenting)); or even a nonpublic forum. Viewpoint discrimination is presumptively unconstitutional in each such forum.
Not even the panel dissent takes issue with the panel majority's first conclusion. Citing the Supreme Court's decision in Christian Legal Society v. Martinez, 561 U.S. 661 (2010) ("CLS"), the dissent instead argues for application of the Rule of Goose and Gander. Because, in the dissent's view, CLS permits universities to expel Christian legal societies from limited public fora on campus (if those societies won't agree to open their membership to all comers in exchange for the university's subsidy), "a university may limit use of its facilities to protect the dignity and safety of women," such as by canceling drag shows and thus their "disrespectful message." Spectrum WT v. Wendler, 151 F.4th 714, 739 (5th Cir. 2025) (Ho, J. dissenting).
Yet "[w]hat is good for the goose, is good for the gander—but not necessarily a pterodactyl." United States v. Perkins, 99 F.4th 804, 820 (5th Cir. 2024). Here, the government's confessed viewpoint discrimination is more pterodactyl than gander to CLS's goose. The CLS majority upheld the open-to-all-comers requirement on the grounds that it was a content-neutral restriction that applied to all groups and did not discriminate based on viewpoint. That holding cannot justify the viewpoint-based discrimination that occurred here. The en banc court should therefore affirm the panel majority.
Argument
[I.] Viewpoint Discrimination Is Forbidden Even in Limited Public Fora and Nonpublic Fora.
Journal of Free Speech Law: "What Did Gitlow Do?," by James Stern
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law; other papers from that symposium will be published here in the coming weeks.
The article is here; the Introduction:
Dissenting in Gitlow v. New York, Justice Oliver Wendell Holmes remarked that while the "general principle of free speech" is part of the liberty guaranteed by the Fourteenth Amendment's Due Process Clause, "perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States." The suggestion that the Constitution would constrain states less than the federal government in the area of free speech would have been consistent with an understanding of due process as an outer backstop, protecting against action so far afield that it "passes the bounds of reason and assumes the character of a merely arbitrary fiat." Such an understanding might have helped reconcile the existence of federal free speech limitations on states with the then-widely held view that the Fourteenth Amendment did not subject the states to the first eight amendments to the Constitution as such.
The Supreme Court never adopted Holmes's suggestion. But to say only that would be misleading: Far from flirting with a more deferential attitude to freedom of speech in state cases, the Supreme Court from the beginning applied free speech principles to the states with substantially greater vigor than to the restrictions at the federal level.
Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights does far more to constrain states than the federal government.
Today in Supreme Court History: December 2, 1907
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Second Circuit Upholds Injunction Protecting Speech About "Abortion Pill Reversal"
Such speech by the National Institute of Family & Life Advocates in this case, the court concluded, was noncommercial speech that was subject to broad First Amendment protection, rather than less protected "commercial speech."
From Nat'l Inst. of Family & Life Advocates v. James, decided today by Judge Joseph Bianco, joined by Judges Eunice Lee and Alison Nathan:
This case concerns statements that certain non-profit organizations that provide services and resources related to pregnancy and parenthood have made, or wish to make, about a protocol intended to counteract the effects of an abortion induced by oral medication.
A woman may seek to have a medication-induced abortion by first taking a dose of mifepristone followed by a dose of misoprostol 24 to 48 hours later. The dose of mifepristone is designed to block the body's progesterone receptors. Progesterone is a hormone critical to maintaining a pregnancy, and, by blocking its receptors, mifepristone can prevent the pregnancy from continuing. Once the progesterone receptors have been blocked, effectively ending the pregnancy, the dose of misoprostol induces the uterus to expel its contents.
If a woman has begun a medication-induced abortion by taking mifepristone, but has not yet taken misoprostol and decides she would like to continue her pregnancy, she may take progesterone supplements in an attempt to counter the effects of the mifepristone. The theory is that the progesterone supplements can increase the woman's progesterone levels to such a degree that the effects of mifepristone are neutralized. This use of progesterone is called "abortion pill reversal" or "APR." …
The NIFLA plaintiffs allege they have made religiously and morally motivated statements about APR on their website, social media, and in other materials … includ[ing]: (1) "if you have recently taken the abortion pill and are having regret, it may be possible to undo the effects of abortion drugs. Learn more here"; (2) "Progesterone … has been used to support pregnancies with a risk of miscarriage for decades[.] … [I]f you've taken the first [dose of mifepristone] and had doubts or changed your mind, you still have a chance to save your pregnancy!"; and (3) links to abortionpillreversal.com, the APR hotline, and the APRN webpage.
NIFLA sued the New York AG's office, claiming that the AG's past enforcement actions against pro-APR speakers chilled NIFLA's speech as well. And the Second Circuit "conclude[d] that the district court did not abuse its discretion, based on the record at this stage of the litigation, in finding that the NIFLA plaintiffs were likely to succeed on their First Amendment claims because their speech at issue is noncommercial speech, and the Attorney General has not demonstrated that regulation of that speech would survive strict scrutiny":
Megan Thee Stallion Wins $75K in Defamation/Emotional Distress/Altered Sexual Depiction Case Against "Milagro Gramz"
From today's jury verdict in Pete v. Cooper:
Question 1: Do you find, by a preponderance of the evidence, that Ms. Cooper is liable to Ms. Pete for defamation per se by accusing Ms. Pete of perjury—a felony—by lying under oath in a criminal trial when she asserted that: (1) Ms. Pete was a "non-credible witness"; (2) "I could go down the list of all the different shit that was not true"; and (3) asked "Was Megan Thee Stallion caught trying to deceive the courts again?" [Jury answer: Yes, damages award $15K + $1K punitives.] …
Question 9: Do you find, by a preponderance of the evidence, that Ms. Cooper intentionally or recklessly engaged in extreme and outrageous conduct toward Ms. Pete? [Jury answer: Yes, damages award $8K + $1K punitives.]
Question 11: Do you find, by a preponderance of the evidence, that Ms. Cooper willfully and maliciously promoted, without Ms. Pete's consent, a visual depiction of Ms. Pete that she knew or reasonably should have known was an altered sexual depiction? [Jury answer: Yes, damages award $50K.]
From a February decision by Chief Judge Cecilia Altonaga (M.D. Fla.) in Pete v. Cooper:
The allegations are connected to the fallout from the 2022 conviction of Daystar Peterson, popularly known as Tory Lanez, a Canadian rapper and singer who was found guilty of assaulting Plaintiff with a firearm following a widely publicized trial. Plaintiff asserts that Defendant … uses [his social media accounts] to harass and defame Plaintiff by disseminating false narratives and conspiracy theories. These include claims that Plaintiff lied under oath, suffers from alcoholism, is "mentally retarded," and needs a guardian.
In that February decision, the court concluded that plaintiff had adequately alleged that the statements were (1) factual assertions (rather than just insults, hyperbole, or opinion), (2) false, and (3) said with knowledge or recklessness as to their being false.
The Third Circuit's Curious Opinion on the "De Facto" U.S. Attorney for the District of New Jersey
The Circuit's decision appears to invite the workaround of dividing responsibilities between two persons in the U.S. Attorney's Office, who could then each exercise half of that Office's powers.
Today the U.S. Court of Appeals for the Third Circuit affirmed a district court ruling that Alina Habba is disqualified from serving as the acting U.S. Attorney for the District of New Jersey. The ruling is a setback for the Trump Administration's efforts to install its own leaders in U.S. Attorneys Offices in New Jersey and elsewhere. I have my doubts about the merits of the decision, on statutory construction grounds that I have previously blogged about here and here. (Co-blogger Steven Calabresi has also highlighted constitutional concerns that cast doubt on the underpinnings of the Circuit's decision). But rather than dive into those details, it may be more important to highlight a curious limitation to the Third Circuit's ruling. In its ruling's penultimate paragraph, the Circuit seems to invite the Administration to simply divide the powers of the U.S. Attorney between two people—rather than one. So divided, the opinion seems to suggest, then there is not a single "acting U.S. Attorney." And, accordingly, no problem exists under the relevant statutes with those two appointees each exercising half of the powers of the U.S. Attorney. Rather than appeal the Circuit's ruling (or, perhaps, in addition to appealing), the Administration could swiftly work-around the decision by cleaving Habba's duties in half.
The background surrounding the dispute has been laid out in my earlier posts, and recounted this morning by co-blogger Jonathan Adler's post about the Third Circuit ruling. In a nutshell, Senate Democrats have (for whatever reason) been slow-walking Trump Administration nominees for U.S. Attorney positions. While Senate Republicans have described these delaying tactics as "unprecedented", the important point for this blog post is that the Administration has needed to find a way to put in place its legal teams in place U.S. Attorneys Offices around the country, such as in New Jersey.
The approach that Administration took in New Jersey is, no doubt, complex. I have described the maneuver in detail previously. To quickly recap, on July 24th of this year, the Trump administration took the following steps (as the Third Circuit recounts): (1) the President withdrew Habba's then-pending nomination to be the U.S. Attorney for the District of New Jersey; (2) Habba resigned as the Interim U.S. Attorney; (3) the Attorney General issued an order appointing Habba as "Special Attorney" to the Attorney General, accompanied by a letter authorizing Habba to conduct "any kind of legal proceedings . . . which United States Attorneys are authorized to conduct" pursuant to 28 U.S.C. § 515; and (4) in the same order, the Attorney General also designated Habba as First Assistant U.S. Attorney, which purported to mean that Habba automatically became Acting U.S. Attorney pursuant to the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345(a)(1). As a result of these moves, the Administration contends that Habba is properly the Acting U.S. Attorney for the District of New Jersey.
A district court previously rejected the Administration's position, and today the Third Circuit affirmed the district court's disqualification of Habba. Here's the Circuit's summary of its decision (and note the language I've highlighted below):
Habba is not the Acting U.S. Attorney for the District of New Jersey by virtue of her appointment as First Assistant U.S. Attorney because only the first assistant in place at the time the vacancy arises automatically assumes the functions and duties of the office under the FVRA. Additionally, because Habba was nominated for the vacant U.S. Attorney position, the FVRA's nomination bar prevents her from assuming the role of Acting U.S. Attorney. Finally, the Attorney General's delegation of all the powers of a U.S. Attorney to Habba is prohibited by the FVRA's exclusivity provision. Therefore, we will affirm the District Court's disqualification order.
Op. at 32 (emphasis added).
So, as the Third Circuit makes clear in its summary, the problem with the Attorney General's delegation to Habba was that she delegated "all the powers of the U.S. Attorney" to Habba. Could the Circuit really mean that, so long as (let's say) only half of the powers were delegated, that would be fine?
And, indeed, that fine line seems to be what the Circuit seems to be defending. Read More
Journal of Free Speech Law: "Suspicion, Deference, and the First Amendment," by Helen Norton
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law; other papers from that symposium will be published here in the coming weeks.
The article is here; the Introduction:
First Amendment disputes frequently require courts to assess governmental assertions that contested expression is unacceptably dangerous. This assessment requires courts to choose when to defer to the government's assertions of danger—and when instead to distrust those assertions. The centenary of the Supreme Court's decision in Gitlow v. New York invites us to revisit the role that deference has played, and could play, in Free Speech Clause theory and doctrine. And because a great deal of the First Amendment law developed since Gitlow is at least as much about suspicion of the government as it is about deference to the government, Gitlow's centenary also invites us to consider the role that suspicion has played, and could play, in First Amendment law.
Benjamin Gitlow was charged not "with the commission of any overt illegal act," nor "with conspiracy to commit an illegal act," nor "with advocating that anyone else go out and commit an overt illegal act." Instead, he and his co-defendants "advocated ideas that, if enough people agreed with them, might lead to illegalities at some point in the future." In defense, Gitlow argued that the First Amendment did not permit the government to punish this advocacy absent evidence of its causal connection to "some substantive evil, consummated, attempted or likely." A majority of the Supreme Court disagreed, deferring to the legislature's determination that this advocacy, without more, carried sufficient potential for harm to justify its regulation. But the Court failed to explain why it chose to defer to the legislature's statutory conclusion that certain speech was dangerous by its very nature.
As we'll see, a variety of principled reasons can support a court's choice to defer to the government's assessment of expression's danger. So too can multiple principled reasons support a court's choice to treat the government's assessments instead with suspicion. As we'll also see, courts sometimes explain their choice to be deferential, and sometimes they don't—and courts sometimes explain their choice to be suspicious, and sometimes they don't. But exposing and justifying these choices helps courts improve the quality of their threshold decision to defer or distrust, as well as the quality of their subsequent operationalization of that decision through the creation and application of free speech doctrine.
Solicitor General Briefs Now Include An "Introduction" Section
One of the few pieces of new information in the New York Times article raising "concerns" about the SG's Office.
On the Monday after Thanksgiving, the New York Times published a lengthy article about turnover and partisanship in the Solicitor General's Office. Yet, there is very little new information. In April, the Washington Post reported on departures from OSG after Trump took office, and that there were now two principal deputies. The Times adds that the Office brought on several new assistants who (gasp!) clerked for Justices Kavanaugh and Barrett. But in the end, there is not even a hint that there is dissension within the office.
So far, people familiar with the office said the turnover had not affected morale; Mr. Kneedler and other recently departed attorneys returned for a recent happy hour with their former colleagues.
In 2024, I wrote about how there was some dissatisfaction with how Solicitor General Elizabeth Prelogar was taking more than her fair share of oral arguments. There were also departures. But Prelogar was praised with glamor shots.
So what do we learn from the Times? Michael Luttig is unhappy with his two former clerks, John Sauer and Hash Mooppan. Should we be surprised?
I think the biggest takeaway here is that a conservative Solicitor General is managing an office geared to a conservative Supreme Court, and he is strategically picking and choosing the cases that will lead to victories. Lisa Blatt's quote is on point:
Even critics of the president admit the office has an impressive record.
"It's like an 18-wheeler truck," said Lisa Blatt, a veteran of the Supreme Court bar and a partner at Williams & Connolly who has been critical of President Trump. "They're crushing it."
There was one useful piece of new information: introductions.
For years, it has bothered me that SG briefs lacked an introduction. Whenever I pick up a Supreme Court brief, I will immediately skim the intro to get a sense of what the argument is. If I am in a real hurry, I will scan the Table of Contents, as a good outline provide a short roadmap of the arguments. But the SG briefs never had introductions or descriptive table of contents. At some point this year, the practice changed. The New York Times has details:
For the first time in modern memory, the office's merits briefs, the legal filings it makes before the justices hear a case, begin with an "introduction," a section often filled with unusually charged language, including direct quotes from Mr. Trump. . . .
The new "introduction" section of briefs has been another point of contention. Government filings have typically begun with the legal argument, but now they open with a summary, often using punchy language. Ms. Baldassarre, the Justice Department spokeswoman, said the introductions offer a preview of the government's argument for the justices and make it more accessible for a general audience.
I, for one, welcome this change.
Now if the SG would only stop using Courier font for emergency applications. It is ghastly.
Update: A colleague reminded me that Sauer hired Aaron Roper as an Assistant SG. Aaron clerked for Judge Merrick Garland, and he was a Bristow Fellow. I suppose this sentence is accurate:
To replace departing lawyers, Mr. Sauer hired at least six new frontline attorneys. They broadly share the stellar credentials of their predecessors and include former law clerks to Justices Amy Coney Barrett and Brett M. Kavanaugh.
But Roper's hiring really doesn't advance the narrative.
Third Circuit Affirms Disqualification of Alina Habba
The first appellate court to consider the Trump Administration's aggressive approach to U.S. Attorney appointments.
This morning the U.S. Court of Appeals for the Third Circuit affirmed the district court decision disqualifying Alina Habba from acting as the U.S. Attorney for the District of New Jersey.
This is the first appellate decision weighing in on the Trump Administration's efforts to bypass the traditional route for appointing U.S. Attorneys in districts for which it has been unable to secure its preferred nominee's confirmation. It also comes on the heels of the Eleventh Circuit's decision affirming sanctions against Habba.
Senior Judge Fisher wrote for the panel in United States v. Giraud, joined by Senior Judge Smith and Judge Restrepo. (For those who care about such things, both Fisher and Smith were appointed by President George W. Bush, and Restrepo was appointed by President Obama.)
Judge Fisher's opinion begins:
The United States Attorneys' offices are some of the most critical agencies in the Federal Government. They play an important role in the criminal and civil justice systems and are vital in keeping our communities safe. The U.S. Attorney leading each office is an officer whose appointment requires Senate confirmation. Where a vacancy exists, Congress has shown a strong preference that an acting officer be someone with a breadth of experience to properly lead the office. It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place. Its efforts to elevate its preferred candidate for U.S. Attorney for the District of New Jersey, Alina Habba, to the role of Acting U.S. Attorney demonstrate the difficulties it has faced—yet the citizens of New Jersey and the loyal employees in the U.S. Attorney's Office deserve some clarity and stability.
Congress has crafted various means through which agency authority is exercised absent a Senate-confirmed officer. When a presidentially appointed and Senate-confirmed officer resigns, the generally applicable Federal Vacancies Reform Act (FVRA) authorizes certain people to perform that officer's duties in an acting capacity subject to time limitations. In addition to the FVRA, other statutes expressly authorize the President, a court, or the head of an agency to designate someone to perform the duties of specified offices in an acting or interim capacity. Parallel to these grants of acting or interim authority, many statutes grant agency heads broad authority to delegate their own duties to other employees of their agencies.
These cases require us to consider the intersection of these various statutes to determine whether Habba is lawfully acting as U.S. Attorney for the District of New Jersey under the FVRA or has been lawfully delegated the full scope of powers of an Acting U.S. Attorney. The defendants in two criminal cases moved to dismiss their indictments and to disqualify Habba from participating in their prosecutions, arguing that she is unlawfully serving as Acting U.S. Attorney. The District Court denied the motions to dismiss, but it granted the motions to disqualify Habba from the prosecutions. The Government appeals. We will affirm.
The opinion concludes:
Habba is not the Acting U.S. Attorney for the District of New Jersey by virtue of her appointment as First Assistant U.S. Attorney because only the first assistant in place at thetime the vacancy arises automatically assumes the functions and duties of the office under the FVRA. Additionally, because Habba was nominated for the vacant U.S. Attorney position, the FVRA's nomination bar prevents her from assuming the role of Acting U.S. Attorney. Finally, the Attorney General's delegation of all the powers of a U.S. Attorney to Habba is prohibited by the FVRA's exclusivity provision. Therefore, we will affirm the District Court's disqualification order.
The opinion strikes me as correct, though I won't claim to be an expert on the intricacies of the FVRA. (On such matters I typically defer to Anne Joseph O'Connell, author of some of the most important work in this area.)
I expect the Trump Administration will seek further review. The question is whether it will file a petition for rehearing en banc before proceeding to the Supreme Court. I suspect the Administration will lean toward the latter.
The Third Circuit leans slightly to the right, as there are eight Republican appointees and six Democratic appointees. The best case for the Trump Administration would seem to be that the court splits along party lines, but if the two senior judges on today's decision participate, the decision would still be affirmed on a party-line vote (and that is assuming neither Judge Bove nor Judge Mascott is required to recuse). So this leads me to think the next stop is One First Street.
Paintings Loaned by the National Gallery of Art to the Supreme Court
An incomplete list of priceless artwork shared with the Justices.
I am researching some of the unique benefits of being a Supreme Court Justice. One of the perks is the ability to borrow priceless artwork from the National Gallery of Art. Over the years, I have seen scattered reports of which paintings the Justices have displayed in their chambers, but I could not find a complete list. I realized no such list exists.
Then I figured out a crude way to search for them. The National Gallery of Art includes an "Artwork History" section for each piece of art in its collection. A search for "Extended loan for use by Justice" or "Extended loan for use by Chief Justice" brings up artwork that was loaned to members of the Supreme Court. I suspect artifacts from the Smithsonian Institution may also be loaned to the Justices, but I could not (yet) figure out a comprehensive way of searching.
Here is the list, with the Justices sorted by their date of appointment. Several pieces of art were passed between two Justices.
Chief Justice Rehnquist, by far, had the mot paintings. Justices Stevens and Rehnquist had about the same amount.
- Marshall: Landscape (Imitator of Vincent van Gogh),
- Rehnquist: Road in Provence (André Derain), First Landing of Christopher Columbus (Frederick Kemmelmeyer), Charles Evans Hughes (Augustus Vincent Tack), Abraham Lincoln (American 19th Century), Chapel in Provence (Captain Edward H. Molyneux), Boy in Blue (American 19th Century), Archery Contest (19th century Chinese Qing Dynasty), Little Girl with Pet Rabbit (Sturtevant J. Hamblin), Pink Roses (American 19th Century), Boy and Girl (American 19th Century), Jane Storm Teller (Ammi Phillips), Nayas Village at Sunset (George Catlin), Salmon River Mountains (George Catlin), Thomas Alston (Thomas Sully), Julianna Hazlehurst (Jacob Eichholtz), Portrait of a Gentleman (Possibly British 18th Century), Skating Scene (John Toole), Memorial to Nicholas M. S. Catlin (American 19th Century), Easby Abbey, near Richmond (George Cuitt the Younger), River Scene (Frits Thaulow),
- Stevens: Portland Harbor, Maine (American 19th Century), La Bretonnerie in the Department of Indre (Gustave Courbet), Volendam Street Scene (Robert Henri), Queen Victoria (Studio of Franz Xaver Winterhalter), Street at Corté, Corsica (Maurice Utrillo), City Hall at Thorn (Eduard Gaertner), Scene from the Lower Mississippi (George Catlin), Hampstead Heath (Alphonse Legros),
- O'Connor: Dog Dance - Sioux (George Catlin), A Little Sioux Village (George Catlin), Buffalo Chase, Sioux Indians, Upper Missouri (George Catlin), A Crow Village and the Salmon River Mountains (George Catlin), An Apachee Village (George Catlin), After the Buffalo Chase - Sioux (George Catlin), Two Blackfoot Warriors and a Woman (George Catlin)
- Scalia: George Washington (Gilbert Stuart), Henry Pratt (Thomas Sully), Peaceful Valley (Alexander Helwig Wyant), Charles Evans Hughes (Augustus Vincent Tack), Steamer "St. Lawrence" (James Bard),
- Kennedy: Siberian Dogs in the Snow (Franz Marc), View of the Mall in Saint James's Park (after Marco Ricci)
- Souter: Harlan F. Stone (Augustus Vincent Tack), Captain Joseph Anthony (Gilbert Stuart), George Washington (Rembrandt Peale), William Constable (Gilbert Stuart), James Lloyd (Gilbert Stuart)
- Ginsburg: The Omen (Mark Rothko), Untitled (Mark Rothko),
- Roberts: George Washington (Gilbert Stuart)
There were also a number of paintings that were on loan to the Supreme Court, but not to any particular Justice. I have to assume that these paintings were on display in individual chambers.
Chapala Beach, Mexico (Lily Cushing) 1970-86, Posada Garden with a Monkey (Lily Cushing) 1970-86, Anna Maria Cumpston (Charles Peale Polk) - 1971-81, Mrs. Day (Ammi Phillips) - 1971-82, The Singing Party (Attributed to Philip Mercier), 1972, Winter Valley (Lamar Dodd) - 1972, Dutch Ships in a Lively Breeze (probably 1650s) 1972-86, Curious Grassy Bluffs, St. Peter's River (George Catlin) - 1972-91, The Island (John Hultberg) - 1972-86, Faraduro, Portugal (Leonid) 1972-73, The Square of Saint Mark's, Venice (Follower of Francesco Guardi), 1973-80, Leaving the Manor House (American 19th Century) - 1973-93, Washington at Valley Forge (American 19th Century) 1974-82, The Flags, Saint Mark's, Venice - Fête Day (Eugène Vail) 1974-82, Slaves' Dance - Saukie (George Catlin)) - 1976-77, 1977-78, Catlin and Indian Attacking Buffalo (George Catlin) 1976-77, Vapor Bath - Minatarree (George Catlin) - 1976-77 Fruit and Flowers (American 19th Century) - 1977-81, Southern Resort Town (Dana Smith) 1977-78, Stylized Landscape (American 19th Century) - 1977-80, The Taj Mahal (Erastus Salisbury Field) 1980-81, Southern Resort Town (Dana Smith) 1984-1993, Composition (Hans Hartung), 1976-77, Untitled (Enrique Castro-Cid) - Marble Mantel (Karl Knaths) 1980-1993, 1988-89, Behind the Scenes (Jean-Louis Forain) 1987-98, Race Course at Longchamps (French 19th Century) - 1989-91, The Island of Raguenez, Brittany (Henri Moret) - 1989-96, Flowers in a Classical Vase (French 17th Century) - 1989, Heaton Park Races (John Ferneley) 1989-1994, Paris, rue du Havre (Jean Béraud) 1989-?,
I am reasonably confident these lists are incomplete, as there are no listed pieces of art loaned after the early 1990s. The only exception was a painting of George Washington that moved from Justice Scalia's chambers to Chief Justice Roberts's chambers. Maybe these records are no longer kept public? Or maybe the Justices no longer borrow art?
I hope these lists are useful to those who know something about art--I do not.
Update: This 2012 article from the Wasingtonian lists some of Ginsburg's art on loan:
But there has been one constant. The now 79-year-old Ginsburg is surrounded by art, as she has been since childhood. A small Bose stereo fills her chambers with opera music—one of her lifelong loves and an appropriate soundtrack for such a regal setting. Her walls boast works on loan from the Smithsonian, including two original Rothkos, a painting by Max Weber, and one by Josef Albers. (Another Albers painting, which usually hangs in her chambers, is currently part of a traveling exhibit. Ginsburg vows that she won't retire until it returns.)
The loans for the two Rothkos were recorded by the National Gallery of Art. The others were not.
Frieze offered some more details about the Albers:
The Ginsburgs could not afford to buy the signed screenprint, but they bought and treasured an Albers reproduction from the museum shop. Eventually, Ruth Bader Ginsburg had, in her office at the Supreme Court, two Albers oil paintings from this same series. She chose them with utmost care. Both belonged to government institutions. In 2011, when Variant: On Tideland (1947–55) – on loan to the Supreme Court from the National Museum of American Art – was removed from her office wall for a touring show, Ginsburg was asked in an interview with NPR legal correspondent Nina Totenburg when she might retire. 'Not until I get my Albers back,' she replied.
An Alber print was auctioned after Ginsburg's passing.
Showing Plaintiffs' House in an Ad for Netflix Real Estate Reality Show Isn't Actionable Invasion of Privacy,
even if it leads people "to visit plaintiffs’ home 'on a daily basis' asking to see it and claiming they learned it was for sale through the Buying Beverly Hills advertisement."
Here are the factual allegations, as set forth in last week's long opinion by Justice Mark Hanasono, joined by Justice Anne Egerton, in Dinho v. Netflix, Inc.:
Plaintiffs' home is on a ridgeline in the Hollywood Hills. The property is guarded by a private gate and the home is not visible from any nearby street. The closest publicly accessible vantage point from which the home can be seen is 1,034 feet away….
Netflix began using a photo of plaintiffs' home in an advertisement for Buying Beverly Hills, one of its reality shows which depicts the operations of a real estate firm. The photo was taken by nonparty Ashwin Rao. Rao published the photo on Shutterstock.com (Shutterstock), "a website that allows any person with [I]nternet access to license photographs to the public for specific uses." Netflix hired Williams Creative Agency (WC+A) to produce the advertisement, and WC+A licensed the photo from Shutterstock for use in the advertisement.
Rao allegedly took the photo without [plaintiff] Dihno's knowledge or consent using a drone or other specialized photography equipment. The photo depicted interior and exterior details of the home not visible from any public location, including the "room layout" and the entrances and exits….
Netflix published the advertisement on its own website and on several other websites. Netflix did so without plaintiffs' knowledge or permission. Both Netflix and WC+A knew that the home was not associated with or depicted in Buying Beverly Hills….
[P]eople began to visit plaintiffs' home "on a daily basis" asking to see it and claiming they learned it was for sale through the Buying Beverly Hills advertisement. One woman rang the doorbell, demanded to enter the home, and refused to leave. Dihno called the police and the woman was arrested. Other people attempted to open plaintiffs' front gate and climb over their fence. [Plaintiffs] would only answer the doorbell for friends or relatives who provided advanced notice of their visit. In addition, [Plaintiffs] received calls "more than once daily" from real estate agents who sought to represent the family in selling the home.
Note that the ad apparently didn't include the address of the home, or the names of the owners. More from the allegations:
Today in Supreme Court History: December 1, 1897
12/1/1897: Justice Stephen Field resigns.
