The Volokh Conspiracy

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A Response To National Review's Editorial on Justice Barrett

"On the Supreme Court’s interim and certiorari dockets, Justice Barrett consistently stands apart from Justices Thomas and Alito when liberal lower courts run amok on hot-button social issues."

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Earlier this month, National Review published an editorial defending Justice Barrett, titled "Injustice Toward Barrett." The editors graciously invited me to write a response, which was published today. It is titled Counting All of Justice Barrett's Votes. Here is the introduction:

Of President Trump's three Supreme Court appointees, Justice Amy Coney Barrett has been subject to the most severe criticism. She's earned it. Most of the defenses of Barrett, including in these pages, highlight the important conservative majority opinions she has joined. It's true that she joins Justices Thomas and Alito, the Court's standard-bearer conservatives, in nearly 90 percent of the merits cases. But that voting record is not something that should have ever been in doubt. President Trump knew better than to appoint another moderate like Justice Sandra Day O'Connor, let alone a liberal like Justice David Souter.

Barrett is unquestionably a judicial conservative. Still, a complete assessment of Justice Barrett requires looking beyond the merits docket. On the Supreme Court's interim and certiorari dockets, Justice Barrett consistently stands apart from Justices Thomas and Alito when liberal lower courts run amok on hot-button social issues. Conservatives should not blind ourselves to where Barrett has consistently fallen short. All you have to do is count all her votes.

I walk through nearly three dozen cases on the interim and certiorari dockets where Justices Thomas and Alito were on one side, and Barrett was on the other.  Here is a snippet:

During the pandemic, Justice Barrett's first concurrence upheld California's ban on singing in church. Barrett was silent about challenges to state vaccine mandates brought by religious health-care workers. Barrett reversed a lower court ruling in favor of Navy Seals who objected to the military's vaccine mandate. Barrett stood by while the Biden administration pressured social media companies to deplatform conservatives. (Barrett would ultimately write the majority opinion finding that none of the conservatives actually suffered any injuries.) Barrett did not join the conservatives in support of a Florida law that prohibited restaurants from showing "adult live performances" to children. Barrett voted to block a Texas regulation of social media companies. Barrett refused to block a Biden-administration policy that required emergency room doctors to perform abortions. In this last case, Justice Alito wrote that his colleagues "simply lost the will to decide the easy but emotional and highly politicized question." Alito added that Barrett, among others, did "not want to tackle this case" and instead "ducked."

There's more. Barrett ruled that Texas could not install razor wire in the Rio Grande River to stem an influx of migrants. Barrett did not join the conservatives who reversed the Biden administration's decision to cut Oklahoma's Title X funding after it banned abortion. Barrett ruled that the Trump administration must pay nearly $2 billion in foreign aid. Barrett ruled that the Trump administration had to pay certain DEI grants. Barrett denied relief to South Carolina, which sought to limit bathroom use in schools based on biological sex. Barrett would not have allowed President Trump to deploy the National Guard to Illinois to assist in immigration enforcement. Justice Barrett greenlighted the shipment of mifepristone to states that ban abortion. . . .

Since Barrett joined the Court in 2020, there have been about a dozen contentious cases where Justices Thomas and Alito, plus either Justice Gorsuch or Kavanaugh, voted to review a case, and where it is fairly clear that Justice Barrett voted no. Given the Court's shrinking docket, each of these cases would have yielded a landmark decision. Justice Barrett likely turned away religious liberty petitions involving a Christian florist who refused to make arrangements for same-sex weddings, a Catholic diocese that refused to fund abortions for its employees, and an Indian group that tried to stop the destruction of its sacred site. Justice Barrett punted on pandemic-era cases involving a challenge to a state vaccine mandate and the case of a religious health-care worker who was fired for refusing the Covid-19 vaccine.

Justice Barrett did not signal a vote to grant petitions from a Catholic hospital that was forced to perform a hysterectomy on a transgender patient, a Christian counselor who was barred from counseling children to be comfortable in their own bodies, and parents who challenged a school's policy to encourage students to transition without parental knowledge. In this last case, Justice Alito warned that "some federal courts are succumbing to the temptation" to "avoid[] some particularly contentious constitutional questions." This message seems to be tailored to Barrett as well.

These thirty-odd cases are not minor. They are the sort of bread-and-butter issues that conservatives care most about. And Barrett's voting record was consistent.

I close on a note of optimism:

Fortunately, as Justice Barrett has just crossed the five-year threshold on the Court, there is still much room left for improvement on the interim and certiorari docket. Critics and supporters alike can just read all her opinions and count all her votes.

The votes are the votes are the votes. We can argue about many things, but at the end of the day, each Justice has one vote which she can use or not use.

Politics

Cooking Up A Blue Plate Special

A few miscellaneous points about one of the most unusual opinions of the term.

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I have an essay on Slaughter and Cook coming out in an online symposium from Law & Liberty. I found Cook to be one of the Chief's most unusual blue plate specials. It was so out of character from the Chief's usual writing style. Moreover, it is so strange to see the Chief respond to Justice Thomas's dissent, all in service of deciding an unnecessary constitutional law question. As I noted before, I think something happened behind the scenes.

Here are a few miscellaneous points that didn't fit into my (already-too-long) essay.

First, Chief Justice Roberts casually announced a principle of judicial supremacy using novel terminology:

Indeed, as a matter of vertical stare decisis, the lower courts have no choice but to follow our lead. When we define a term or establish a background rule, we need not repeat ourselves—once is enough.

The term "vertical stare decisis" has been used in several concurrences and dissents--Justice Kavanaugh has several of them. But the term has never appeared in a majority opinion to refer to the Supreme Court's supremacy. (I found one reference in a case involving vertical stare decisis between a district court and a circuit court.) Nothing in the Constitution requires lower courts to "follow our lead." Vasan Kesavan recently wrote a book-length law review article on the topic. But the Chief Justice pronounced that lower courts have no choice but to bend the knee. If only the Warren Court could have been so concise in Cooper v. Aaron in establishing the principle of judicial supremacy. Still, I don't think this line has gotten nearly enough attention. And it was certainly ignored by the federal judges in Boston and elsewhere who thought the Court's TPS ruling was optional.

Second, there was an important threshold question: did Cook have a cause of action to challenge the President's removal. Justice Thomas argued at some length that the federal courts lacked the authority to provide a remedy to Governor Cook. Justice Thomas points out that the majority fails to "identify[] a right of action . . . that overcomes sovereign immunity." Thomas observed the majority did not identify an "equitable remedy" from common law.

Chief Justice Roberts briefly replied in a footnote that Cook could sue "in equity." 

As a final procedural roadblock, Justice THOMAS contends that Cook may not herself "enforce the terms of the Federal Reserve Act," for "[n]o plaintiff … can sue without a right of action" that "come[s] from Congress." Post, at ––––. That is mistaken. We have often held that plaintiffs may sue "in equity" without a congressionally-provided cause of action " 'to prevent an injurious act by a public officer.' " Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015) (quoting Carroll v. Safford, 3 How. 441, 463, 11 L.Ed. 671 (1845)); see also W. Baude, J. Goldsmith, J. Manning, J. Pfander, & A. Tyler, Hart and Wechsler's The Federal Courts and the Federal System 1348–1350 (8th ed. 2025) (noting "the availability of Ex parte Young-style litigation to challenge the legality of federal official action"). We see no reason why Cook may not pursue such a challenge here.

This throwaway line allowed Cook to proceed, but will have collateral consequences in countless other areas of the law where private litigants seek to challenge federal actions. Armstrong does not support what Cook did in this case, but the Chief Justice unfortunately breathed new life into that precedent.

Third, in Cook, Chief Justice Roberts ruled that President Trump did not provide Lisa Cook with the appropriate process before firing her. The Court did not spell out exactly what Trump should have done, but stated simply that the President's social media postings announcing the firing were not enough.  The Court could have stopped there. Instead, the Court opted to declare emphatically that the Federal Reserve was independent, and the President could not remove the Commissioner at will.

How the Chief Justice took this tack is unusual. Generally, once Roberts has five votes, he feels no obligation to respond to dissents. For example in Trump v. Barbara, the birthright citizenship case, Justices Thomas and Alito wrote nearly 150 pages of dissents. Roberts spends at most about 5 pages responding to them. Yet in Cook, Roberts responds nearly point-by-point to Justice Thomas, including the dissenter's argument that the purported independence of the Federal Reserve is unconstitutional in light of Slaughter, a decision that Roberts himself wrote. Again, the government did not contest the Fed's independence.

Roberts still engaged in a novel constitutional analysis, upholding the Federal Reserve's constitutionality. In a few breezy paragraphs, he drew an analogy between the Fed and the First and Second Banks of the United States, enacted during the Washington and Madison administrations, respectively. Roberts acknowledged there were differences between the institutions, as the Federal Reserve is "more powerful than its predecessors, managing a vastly more complex economy in a vastly more complex world."

But Roberts makes a glaring pivot that undermines any pretense of originalism. Roberts wrote "We see no reason, however, why our central bank ought to be 'trapped in amber' any more than any other aspect of our constitutional scheme." Here, Roberts cited his own opinion in United States v. Rahimi, which rolled back protections of the Second Amendment, which lacked a clear historical tradition. He also cited Noel Canning, a case he dissented in. All that is needed, Roberts writes, "is that the Federal Reserve remains "consistent with the principles that underpin" the First and Second Banks—namely, that monetary policy should not be subject to political interference." Finally, Roberts invoked Justice Frankfurter, who was no originalist; We thus look to history not as an end in itself, but (as we often do) to give "essential content to undefined provisions in the frame of our government."

Of course, there is the greatest inconsistency. How to reconcile Slaughter and Cook? Justice Thomas observed that Slaughter held that the President can remove a subordinate at "'will,' without cause, without notice, and without a hearing, so long as they exercise any executive power." Justice Barrett, in dissent, opined that the constitutionality of the removal restriction for Federal Reserve Governors is "is in a league of its own" yet is "entirely outside the scope of this case."

Yet, even with the Court's decision to reaffirm the Federal Reserve's independence, Roberts left open in a footnote whether Congress could delegate "additional regulatory powers that are attenuated from monetary policy," thus leaving the status of the agency in some "limbo."

Fourth, there was an unstated fear lurking in the background: if the President could conjure up dubious causes to fire a member of the Federal Reserve, the board's independence could be skirted. The Chief Justice suggested that the courts could scrutinize if the stated rationale provided for firing the Governor was in fact cover for an impermissible motivation. Such a "pretext," Roberts wrote, would be "corrosive of the independence that Congress sought to preserve." Here, Roberts cited his own ruling from Department of Commerce v. New York (2019)--quite possibly his worst decision of all time--which suggested the Trump Administration offered a pretextual reason for adding a question about citizenship to the census forms.

The upshot could not be clearer: Roberts has long been skeptical of the reasons offered by Trump, and would second-guess the elected president when he is suspicious. Yet, in an attempt to hold Trump accountable, Roberts has given the lower courts a green light to ferret out "pretext" in all manner of presidential decisions. As Adrian Vermeule observed, Roberts cooked up a mess.

Especially striking, as I will discuss at the end, is that Cook very arguably contains the Court's strongest assertion to date of a loose, unstructured judicial competence to review presidential findings and conclusion for "pretext" - an assertion that is potentially destabilizing in the extreme, and whose dangers the Court probably ought to consider more fully.

But of course, the Chief Justice blew right past this concern because the Federal Reserve is just too big to fail and orange man bad.

Fifth, Justice Thomas notes all of the firsts. The Court "upholds an injunction against the President's removal of an executive officer for the first time in the Constitution's 237-year history." No court ever "held that any federal statute implicitly requires notice and a hearing when it provides for a term of years limited by removal for cause."

Sixth, observers measure how partisan a Justice is based on how close to the "middle" they vote--not too conservative, not too liberal, Justice right. Justice Clarence Thomas is often assailed as the most ideological Justice. Nonsense. Thomas has an actual judicial philosophy that he steadfastly follows. Likewise, Justice Jackson on the other end has an actual judicial philosophy that she steadfastly follows. The most partisan Justices are those at the middle, who cast their votes going to the left or the right based on their read of the situation at the moment.

Here's looking at you, Chief.

Some More Or Less Tentative Thoughts on Substack

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I appreciate the emails from readers about my Substack post. I do not read the comments, so if you left something there, and actually want me to see it, email me! Then again, I suspect a fair share of comments are written with full knowledge that I will never see it. So be it.

After reflecting on the responses, I will offer some more or less tentative thoughts.

First, why did I write my post? I could have simply launched a Substack, as others have done, without any explanation. I have several reasons. At the highest level, writing helps me think things through. If I can't state my thesis in a coherent written form, then my thesis doesn't work. Moreover, once I write something down, I've committed myself to it. "Locked in" as they say. But on a deeper level, I feel a kinship with my readers, even though I don't know them. I am fully aware of how many people read my posts. Indeed, it is a strange sensation when I meet people in public who recognize me from the blog. Once I was in an Uber and the driver figured out who I was and told me he watched all of my YouTube videos. We chatted the entire ride about Supreme Court cases. I invited him to my lecture the next day sent him a copy of my most recent book. On the Fourth of July, I visited the National Constitution Center (where else would I go?) and a reader spotted me and asked for a selfie. We later corresponded about career advice. I owe this audience I've built some explanation before I change how content is delivered.

Second, another comment was that I should not be motivated by money. This is something of a sensitive point, but is worth addressing. I went straight from clerking to academia. Other than working as a summer associate, I never earned a paycheck in private practice. I never collected those cushy clerkship bonuses. Plus, as readers will recall, I resigned from a position last year, and with that resignation, a paycheck immediately vanished. I have not taken a vow of poverty, and am not seeking anyone's pity. I have a blessed life with an amazing career that I would not trade for anything. Still, virtually all academics who forego careers in legal practice have to find opportunities for outside income. Some teach additional classes, even as adjuncts at other law schools. Others do consulting or part-time litigation with law firms. I am fortunate to be on the speaking circuit, which pays generous honoraria. Still, as time passes, the toils of traveling across the country grow. Many academics do get paid for their writing. Law schools often will provide writing stipends, or bonuses for articles placed in top journals. Law review symposiums often provide honoraria for participation. And so on. My goal, at least, is to be transparent.

Third, a reader suggested that my influence might decrease if I initially posted my material behind a partial paywall. I've given this issue quite a bit of thought. Most of my posts are written for a general audience, and have very little impact. But my most impactful audiences are written for very specific audiences. I would wager that the specific audiences that impact policy are the sorts of people who would not mind paying a nominal fee each month. Moreover, a Substack would allow me to build an audience of people who may not otherwise visit the Volokh Conspiracy. One of the greatest virtues of this blog is that there are a wide range of authors who post on a wide range of topics. But some readers may not prefer this format with all those views. Indeed, I've heard that there is apparently a filter to remove all of the "Josh Blackman" posts on VC. An independent site would let me speak to readers who want to hear my views. Commenters who hate my work would feel no obligation to read at all. Again, I ran a solo blog for more than a decade on JoshBlackman.com. I'm sure most of those readers came over to the Volokh Conspiracy, but some may not have.

Fourth, a reader said a 24-hour delay was not long enough. If that was the only gap, he would see no reason to subscribe, and just postpone his reading for a day. One alternate idea I had would be to post all of the week's content on the Volokh Conspiracy on Friday afternoon, similar to how the Supreme Court used to post all of the oral argument for the week on Friday afternoon. This would let readers who are unable or unwilling to pay the fee to catch up with all of my work over the weekend. My observant readers could event print stuff out for non-electronic reading. This would also eliminate the administrative burden of trying to figure out when posts would run. I could condense everything into a "week in review" format.

Fifth, a longtime reader raised what I think is the biggest risk with creating a subscription model: I may be tempted, even subconsciously, to alter my work to attract a bigger audience. This concern is serious. Getting clicks can be addictive. Indeed, one of the reasons I have limited my part-time legal practice to pro or "low" bono work is so that I never feel obligated to take or keep a case I don't believe in. Relatedly, this model would create an incentive to always create new content. As things stand now, I can write five posts in a day and then nothing for two weeks. But if there is an expectation to release a newsletter each week, I would feel obligated to write a newsletter each week. I don't know that I have a solid response to this concern. I can say, "Well, if it doesn't work out, I'll go back to the old model." But I am aware that a dependency on a source of income is hard to break. (Again, see my resignation from Heritage.) The best response I can offer is that my nearly two decades of work has steeled me to always pursue the truth. Indeed, a name I came up with for a Subtack refelcts this mantra: "Unpopular Opinions: Always authentic. Often controversial. Never afraid."

I welcome more thoughts and comments. I continue to work through this idea.

Lawyer Challenges Suspension for Being Too Phishable; No Dice, Says Appellate Court

Take that training seriously, folks.

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From Bedrossian v. Cal. State Pers. Bd., decided Tuesday by California Court of Appeal Justice Frances Rothschild, joined by Justices Gregory Weingart and Michelle Kim:

The [State Compensation Insurance Fund] employed Bedrossian as a staff attorney beginning in March 2004 and ultimately promoted her to attorney IV. In the latter position, she was responsible for litigating worker's compensation cases involving "confidential and sensitive information." A "duty statement" Bedrossian signed lists among her responsibilities as an attorney IV "[m]aintain[ing] user mastery over [the Fund's] computer-based technology" and "communicat[ing] professionally and efficiently." …

The Fund "require[s] that all employees take [cyber]security awareness and privacy training annually so that they can recognize external threats such as phishing and other social engineering tactics." "Phishing" refers to the process of sending emails purporting to be from a legitimate source and encouraging the recipient to "click on … a malicious link" or attachment or provide sensitive information. "If a phishing email is successful, [it] can either steal data from the user," "compromise the user's account," or "compromise the entire system" of an organization.

Over the course of her employment at the Fund, Bedrossian participated in numerous training sessions on how to identify and handle phishing emails. This training educated employees about "red flags" which should alert the reader that an email is potentially dangerous, such as asking the recipient to click a link to avoid a negative consequence. In 2019, the Fund began automatically adding an "external sender notification" banner on all emails from outside the Fund, which reminded the recipient in yellow highlighted text that the email "was sent from outside [the Fund]" and not to click on links or open attachments "unless you recognize the source and know the content is safe." …

[1.] Phishing Email Test Campaign

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The Fauci Diaries and the Cult of Judicial Celebrity

Like Dr. Fauci, (liberal) judges nominated to the Supreme Court are immediately elevated to the ranks of AAA celebrity.

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A constant theme in the Fauci Diaries is celebrity. Fauci was absolutely obsessed with the adoration he received from celebrities. He would list all the famous people at parties he attended. He bragged how Barbara Streisand called him to ask for advice on vaccines. Julia Roberts called Fauci her "personal hero." Kim Kardashian organized a Zoom call with Fauci and other A-list celebrities. And so on.

Fauci, who had previously toiled in obscurity, ate it all up. Indeed, I would wager part of his motivation to always be on camera was to gain even more affection from his loving crowd. Thus, Fauci became an overnight celebrity--in his own estimation, one of the most famous people in the world. I'm sure Fauci thought, like John Lennon, that he was bigger than Jesus.

That sort of narcisism can go to a person's head. Perhaps Fauci may have approached his role with more humility and uncertainty if he wasn't playing up for elites, who suffered no consequences from lockdowns. They could go outside in their palatial estates and have gourmet dinner at the French Laundry unmasked.

The headlines about Dr. Fauci yesterday, I think, need to be compared with Justice Jackson's appearance on Michelle Obama's podcast. Five years ago, no one outside of a group of lawyers knew who Ketanji Brown Jackson was. She did not receive tickets from Beyonce or flowers from Oprah. She was not photographed by Annie Leibovitz for the cover of Vogue. She was not invited to attend the Grammy's. She did not have a part in a Broadway show. She was no more famous than any of the other judges on D.D.C. Yet, once Jackson was elevated to the Supreme Court, she was immediately thrust into the top of the A-list.

Dr. Fauci was not immune from the effects of overnight celebrity. I don't think Justice Jackson can be either. The appeal of being loved is far too intoxicating. And as I've noted before, Judges--even implicitly--will say and do things to keep that love coming.

To be sure, conservative judges also become overnight celebrities, but not in a good way. Just look at Saturday Night Live, and compare how Brad Pitt played Anthony Fauci and how Matt Damon played Brett Kavanaugh.

It is a fact that conservative celebrities just aren't as cool. Harlan Crow is not Russell Crowe. Maybe this fact helps keep people on the right more grounded?

In any event, Dr. Fauci's refusal to testify about conduct for which he was pardoned should give rise to serious constitutional litigation, including about the validity of the autopen pardon. Stay tuned.

Free Speech

Viewpoint and Race Discrimination Claim in COVID Relief Grants Can Go Forward

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A short excerpt from the long opinion today in African People's Ed. & Defense Fund, Inc. v. Pinellas County, written by Eleventh Circuit Judge Kevin Newsom, joined by Judge Andrew Brasher and District Judge Paul Huck (S.D. Fla.):

Florida nonprofit African People's Education and Defense Fund twice applied for COVID-relief grants from monies made available to Pinellas County by the federal government. The Pinellas County Board of Commissioners initially approved APEDF's first grant request but later revoked that approval; the Board denied the group's second grant application outright.

APEDF sued, contending that the Board had revoked the first grant and denied the second on the basis of race and because of the group's association with the "Uhuru Movement"—which APEDF describes as a collection of "like-minded groups and individuals promoting Black community empowerment."

The court allowed APEDF's First Amendment to go forward:

Where, as here, the government is doling out public funding, it operates as a sovereign rather than as an employer. Pinellas County wasn't seeking an ongoing relationship with APEDF, nor was it offering to pay APEDF to perform a service or to act as an agent. Rather, it was simply determining whether APEDF's contributions to the public justified an award of grant money. In that respect, APEDF is less like an employee or a traditional government contractor and "more like [an] ordinary citizen[ ] whose viewpoints on matters of public concern the government has no legitimate interest in repressing."

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Free Speech

Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit

The recommendation includes entry of a default judgment against Boteach in a defamation lawsuit brought against him by a Florida hotel.

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An excerpt from today's long Report and Recommendation by Judge Marty Fulgueira Elfenbein in Fontainebleau Florida Hotel, LLC v. Jacob:

This action arises from an encounter between Defendant and then-hotel guest Faiz Akbar … in the lobby of Plaintiff's hotel in December 2024. The Parties sharply dispute the nature of the encounter, who initiated or escalated it, and whether Plaintiff responded appropriately to Defendant's subsequent complaints.

Plaintiff's operative First Amended Complaint alleges that Defendant published false statements concerning the incident and Plaintiff's response to it, including statements that Plaintiff discriminated against Defendant because he is Jewish, knowingly permitted an antisemitic assault to occur on its premises, removed Defendant rather than the alleged aggressor, and refused to cooperate with law enforcement. Based on those allegations, Plaintiff asserts claims against Defendant for defamation and tortious interference with business relationships.

Defendant filed a Counterclaim and Third-Party Complaint asserting claims against Plaintiff and naming Jeffrey Soffer … and Akbar as Third-Party Defendants. Defendant's Counterclaim alleges, among other things, that he was subjected to an antisemitic verbal attack at the hotel, that Plaintiff failed to protect him or adequately cooperate with the ensuing investigation, and that Plaintiff thereafter excluded him from its properties. Defendant asserted claims under federal civil-rights statutes and a claim for tortious interference with business relationships….

The merits of the Parties' competing claims are not directly before the Court in the Motion for Sanctions. Instead, the dispute concerns Defendant's conduct during the litigation, the meaning and scope of the District Court's February 20, 2026 Order …, and whether Defendant's subsequent social-media activity violated that Order in a manner warranting sanctions under Federal Rule of Civil Procedure 16(f) or the Court's inherent authority….

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Free Speech

No Pseudonymity for the Pretend Date in Pentagon Contractor's Suit Over Hidden Date Recording by O'Keefe Media Group

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First, a quick summary from today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

The court held that Heidi, who was sued as one of the defendants, couldn't remain pseudonymous:

Throughout this litigation, Defendants have maintained that [Heidi Doe]'s name should be sealed…. Defendants … assert that [Heidi]'s true name must be kept under seal on the basis that her identity is protected by the District of Columbia reporter's shield law. In the alternative, they argue that good cause exists under Rule 26(c) to maintain [her] pseudonym….

Defendants still have not shown [Heidi] is protected by the Shield Law. The District's Shield Law prohibits the compulsory disclosure of "the source of any news or information procured by [a] person while employed by the news media and acting in an official news gathering capacity," creating an absolute privilege for the identities of sources.

The court previously denied Defendants' motion on the ground that they did not present any evidence—"not even a declaration"—to support treating as a source rather than as a journalist. Defendants this time come armed with a declaration from [Heidi], but the declaration only reinforces the court's previous determination that [Heidi] is not a source within the meaning of the Shield Law.

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Free Speech

A Bit on Pentagon Contractor's Wiretapping Claim Over Hidden Date Recording by O'Keefe Media Group

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First, a quick summary from today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

Mannina sued on various grounds; I discussed the court's treatment of plaintiff's defamation and false light claim in this post, and its treatment of the fraudulent misrepresentation claim in this post. Here's what the court had to say about the wiretapping claim:

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Free Speech

Pentagon Contractor's Fraudulent Misrepresentation Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward

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From today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

Mannina sued on various grounds; I discussed the court's treatment of plaintiff's defamation and false light claim in a separate post, but here's what the court had to say about the fraudulent misrepresentation claim:

A claim of fraudulent misrepresentation requires proof of "(1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation." Plaintiff alleges that [redacted] "knowingly and deliberately misrepresented herself to Mr. Mannina for the purpose of targeting and entrapping him into making remarks that could be distorted for political and harmful purposes." Using her "inauthentic profile," falsely represented she was romantically interested in Plaintiff, when in fact "[s]he was simply part of an intentional targeted operation against individuals perceived to be Democrats to materially and falsely discredit them." And her false representations were "material to inducing" Plaintiff to go on the two dates with [redacted] and discuss his views and career.

{OMG and O'Keefe's motion does not itself offer any substantive arguments [apparently referring to arguments related to the elements of the fraudulent misrepresentation claim]. It rather accuses Plaintiff of "blam[ing] a lady for not being honest as to her motives" instead of "blaming himself for having a big mouth and spilling secrets." Apparently, his "audacity is similar to a man who kills his parents and then throws himself upon the mercy of the court, claiming that he is an orphan."}

Defendants first appeal to the First Amendment. They contend that the First Amendment precludes a fraud claim against undercover journalists both because "a plaintiff cannot use a fraud label to end-run the constitutional safeguards that apply to speech about matters of public concern" and because the First Amendment "does not countenance using fraud claim to punish the publication of truthful information on a matter of public concern." …

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Free Speech

Pentagon Contractor's Libel Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward

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From today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

The publication of these videos caused Plaintiff to lose his job. Plaintiff subsequently brought this action alleging defamation, false light, fraudulent misrepresentation, conspiracy, and violations of the District of Columbia and federal wiretapping statutes….

Plaintiff alleges that, "[t]hrough numerous edits and splices from statements made throughout both dates, and even between each date, the various videos and articles … were created to intentionally provide false or implied evidence to support Defendant OMG and O'Keefe's fabricated claims that [Plaintiff] was essentially attempting to launch an unlawful coup against President Trump."

Specifically, he alleges that "Defendants falsely state or imply in their [publications] that Mr. Mannina was a senior Pentagon Official providing direct advice to the [Joint Staff] and part of a subversive 'Deep State' that held covert meetings with retired military leaders, including admirals and generals, who were collaborating from within the Pentagon on the means to undermine and counteract the incoming Trump administration … in highly secure locations, including 'The Tank', that were 'reserved for critical defense deliberations.'" "Defendants further falsely state or imply that [Plaintiff], in his official capacity, was lying, spying, conspiring to commit a coup, and acting unethically." …

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