From a Justice Department press release as to the original forgery: "Michael Arnstein's blatant criminal scheme to exploit the authority of the federal judiciary for his company's benefit was outrageous. As Arnstein has learned, his attempts to remove negative reviews about his business from Google search results by forging a U.S. District Court judge's signature may have worked in the short term, but it also earned him nine months in a federal prison."
Plaintiff alleges that defendants defamed him in their motion to dismiss an action filed against them …, Mark Goldberg v. Mark Rozenberg Esq. et al… (the "Bronx Action"). The plaintiff in the Bronx Action, Mark Goldberg, sued defendants for defamation based on statements made in yet another lawsuit, … entitled The Natural Sapphire Company v Marz Rozenberg et al.
Plaintiff contends that, as part of defendants' motion to dismiss the Bronx Action, they "gratuitously referred to [p]laintiff by name and included salacious statements regarding his past conviction—accusing him of forgery and labeling him a 'convicted felon'—without any connection to the issues or parties in that case." Plaintiff asserts claims for defamation and abuse of process ….
"[A] statement made in the course of legal proceedings is absolutely privileged if it is at all pertinent to the litigation." … Here, defendants' statements about plaintiff in the Bronx Action were pertinent to the motion to dismiss that action. While plaintiff was not a party in the Bronx Action, defendant asserted that he was the principal of the Natural Sapphire Company and, in that capacity, employed Goldberg, and was part of a coordinated campaign of meritless actions filed against defendants after defendants filed in Federal Court against The Natural Sapphire Company asserting violations of the Americans with Disabilities Act. This information is pertinent to, inter alia, defendants' request for sanctions in the Bronx Action. Accordingly, they fall within the absolute litigation privilege, precluding the defamation claims asserted here.
Even setting this aside, plaintiff does not dispute the truthfulness of defendants' statements about his criminal conviction. As such, no defamation claim based on this statement lies…. "[T]ruth is an absolute defense to a defamation action" ….
Neither has plaintiff stated an abuse of process claim. [Details omitted. -EV] Finally, defendants' request for sanctions is granted to the extent that plaintiff is enjoined from commencing any new litigation in the New York State courts against any defendant herein without obtaining prior approval from the court. The record reflects that such relief is necessary "to prevent use of the judicial system as a vehicle for harassment, ill will and spite."
Here's a post on the original forgery case; for more on the broader pattern of attempts to vanish online material using (among other things) forged or fraudulent orders, see my Shenanigans (Internet Takedown Edition):
Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name. (Institute for Justice.)
This year saw the twentieth anniversary of Kelo v. City of New London, one of the most controversial property rights decisions in the history of the Supreme Court. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. Building on earlier decisions such as Berman v. Parker (1954), a closely divided 5-4 majority ruled that virtually any potential benefit to the public qualifies as a "public use."
The Yale Journal on Regulation sponsored a symposium to mark the occasion, which I organized and co-edited along with legal scholars Eric Claeys (George Mason University) and David Schleicher (Yale). The articles in the symposium are now published and are available online at the journal's website. Contributors include attorneys on both sides of the Kelo case, and leading takings and property law scholars such as Richard Epstein, Tom Merrill, Maureen Brady, Vicki Been and Yun-Chien Chang, Gerald Dickinson, and more. Eric Claeys and I also contributed articles, in addition to our role as editors.
The other editors and I have written an Introduction for the symposium, which summarizes the significance of Kelo, and provides a brief overview of the symposium articles.
The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the "public use" issue at stake in Kelo and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. This Article takes up that challenge. Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question—private-to-private condemnations in one case, exclusionary zoning in the other—violates the property-rights provisions of the Fifth Amendment. But, on both issues, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal Era skepticism of property rights. Part II outlines reasons why that conventional wisdom is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further "representation-reinforcement" in two ways: by giving voice to groups excluded from the political process, and by empowering them to "vote with their feet." Finally, Part III highlights synergies between judicial enforcement of public-use limitations on eminent domain and enforcement of restrictions on exclusionary zoning.
I have also written a second article to mark the 20th anniversary of Kelo. This one was published at the Brennan Center State Court Report, and focuses on the massive state legislative and judicial reaction to Kelo, and the lessons which can be learned from it.
The Cato Institute - where I am the Simon Chair in Constitutional Studies (in addition to my primary position at George Mason University) - is looking to hire a full-time executive power scholar. Here is a description of the position:
The Cato Institute seeks a full-time Executive Power Scholar to: 1) conduct original research on the rise, uses, and abuses of executive authority in the United States; and 2) develop reform ideas and proposals in order to reduce presidential and executive branch power back to its proper constitutional limits, in order to restore the separation of powers envisioned by the founders. This position will advance Cato's mission by producing rigorous scholarship that analyzes constitutional structure, unilateral presidential action, administrative growth, and the separation of powers from a libertarian perspective, emphasizing limited government, individual liberty, and the rule of law.
The projected salary range for this role is $110,000 – $150,000 per year. Compensation is based on the successful candidate's experience and skills.
More information - including instructions on how to apply - at the link above. Please do not send your applications to me; use the link.
One of the images from the training, as reproduced in the majority opinion.
A short excerpt from Henderson v. Springfield R-12 School Dist., decided today by the Eighth Circuit Judge Ralph Erickson, joined by Judges Raymond Gruender, Duane Benton, David Stras, and Jonathan Kobes, and in large part by Judge Steven Grasz:
This is a challenging case involving the intersection of First Amendment principles with the advancement of the critical mission of understanding, educating, and creating an environment where all people, regardless of race, creed, or status are welcomed.
It is important to note at the outset what this case is not about. It is not about the ability of the school district to take issues regarding race and discrimination seriously or to educate students about those issues. It is not about, as claimed by the dissenters, whether telling employees to "be professional" amounts to a constitutional injury or whether a school district can enforce "basic expectations of every conversation in our society" without fear of a federal lawsuit. It is also not about whether we believe the views expressed by either party are appropriate or distasteful. It is not about an employer's ability to confirm employees understand the material being taught. Nor does it turn every personal belief held by an employee or a student that may be at odds with her employer or teacher into a federal cause of action.
It is about whether the plaintiffs have proffered sufficient evidence, when viewed in their favor, to show they suffered a concrete and particularized injury by being chilled from speaking during the training or by being compelled to speak due to a credible threat of an adverse consequence by the school district….
The court said the plaintiffs had indeed provided such evidence; for more on the facts related to that, see the full opinion. Here is an excerpt from the court's description of the training:
At the beginning of each [mandatory training] session, school district staff, including [plaintiffs] Lumley and Henderson, were provided several documents, including one entitled "Guiding Principles." The principles listed in this handout directed staff to "Stay Engaged," "Lean into your discomfort," "Speak YOUR Truth and from YOUR Lived Experiences," "Acknowledge YOUR privileges," "Seek to Understand," "Hold YOURSELF accountable," and "Be Professional." The "Guiding Principles" were repeated by the trainers early in the power point slide presentation. When the slide was published, the trainers explained to Henderson that she "needed to have 'courageous conversations;' that [she] must stay engaged; that the topics of the training can be uncomfortable, but [she] must 'lean into [her] discomfort;' that [she] should share [her] personal experiences and identities; and that [she] must acknowledge [her] privileges and hold [herself] accountable."
[This post is co-authored with Professor Seth Barrett Tillman.]
The Supreme Court's decision in Trump v. Illinois (2025) was issued in a preliminary context, and without the benefit of oral argument. Some scholars have argued that this case is basically moot, but others believe the Executive Branch will continue litigating this case in the normal course. It would be problematic for the presidency to have this interim ruling remain on the books for generations to come, without a fulsome resolution by the Supreme Court.
We turn to the central statute at issue in the case.
10 U.S.C. § 12406(3) provides:
Whenever--the President is unable with the regular forces to execute the laws of the United States; …
(3) the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.
In Trump v. Illinois, the Court's focus was on the meaning of "regular forces," but there was less focus on the meaning of "unable." Here is the Court's analysis:
This interpretation means that to call the Guard into active federal service under §12406(3), the President must be "unable" with the regular military "to execute the laws of the United States." Because the statute requires an assessment of the military's ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from "execut[ing] the laws" "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress." 18 U. S. C. §1385. So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be "unable" with those forces to perform that function. [Slip. op. at *2.]
Under the Court's view, the President is able to federalize the national guard only (i) when he has legal authority to deploy the regular forces domestically to execute the laws, and (ii) when those regular forces are insufficient. According to the Court's position, legal authority to use regular forces domestically to execute the laws is a necessary, but not a sufficient condition to federalize the National Guard. On the facts before it, the Court found that the Posse Comitatus Act prohibits the President from using the regular forces to execute the laws. [Slip op. at *2.] The Court concluded that President Trump could not federalize the National Guard because the President was "unable" to lawfully deploy the regular forces of the United States. In other words, the Court ruled against the President because he could not satisfy the necessary condition. But for the Court's argument to work, the President must be subject to the Posse Comitatus Act.
In Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Jackson took the position, absent analysis, that the President was bound by the Posse Comitatus Act. Jackson, a former Attorney General, wrote "Congress has forbidden [the President] to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress." This question was not at issue in Youngstown. To be sure, Jackson wrote his concurrence closer in time to when the Posse Comitatus Act was adopted. But it is not clear that Jackson's analysis still stands in light of the Court's more recent precedents.
Let's walk through the analysis. The Posse Comitatus Act, 18 U.S.C. § 1385, provides:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. (emphasis added).
The Supreme Court's analysis in Trump v. Illinois turned on the President's inability to use the regular forces for purposes of domestic law enforcement. And this analysis relied on the President being subject to the Posse Comitatus Act. But does the Posse Comitatus Act apply to the President? To be sure, this argument has nothing to do with whether the President is an "officer of the United States." Rather, we rely on well developed principles of statutory interpretation.
The statute does not expressly reference the President. Franklin v. Massachusetts (1992) and related cases articulated a clear statement rule. See also, e.g.,Nixon v. Fitzgerald, 457 U.S. 731, 748 & n.27 (1982) (Powell, J.). Under this canon of avoidance, if the President is not expressly named in a statute, the courts should not presume that Congress intended to limit the President's power. The Office of Legal Counsel has recognized this clear statement rule. See also, e.g.,Memorandum from William H. Rehnquist, Assistant Attorney General, for the Honorable Egil Krogh, Staff Assistant to the Counsel to the President, Office of Legal Counsel, Re: Closing of Government Offices in Memory of Former President Eisenhower 3 (Apr. 1, 1969); Memorandum from Antonin Scalia, Asst. Att'y Gen, to Honorable Kenneth A. Lazarus, Re: Applicability of 3 C.F.R. Part 100 to the Pres. and V.P., OLC, at 2 (Dec. 19, 1974).This sort of avoidance would be especially appropriate with the Posse Comitatus Act given that the statute potentially intrudes on the President's Article II powers.
Moreover, the Posse Comitatus Act imposes criminal penalties of up to two years in prison. Under the immunity doctrine from Trump v. United States (2024), a criminal prosecution against the President is likely barred where the statute implicates the President's "core" presidential powers. The Court concluded that "At least with respect to the President's exercise of his core constitutional powers, this immunity must be absolute." See Illinois v. Trump, Civil A. No. 25-cv-12174, 2025 WL 2886645, at *19 (N.D. Ill. Oct. 10, 2025) (April M. Perry, J.) ("The Posse Comitatus Act makes it a criminal offence to use the Army, Navy, Marine Corps, and Air Force to 'execute the laws' unless expressly authorized by Congress. 18 U.S.C. § 1385. And as Justice Jackson in his well-known Youngstown concurrence has recognized, while this prohibition likely does not apply to hold the President criminally liable, the Act nonetheless operates to 'forbid[ ]' the President 'to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress.' Youngstown Sheet & Tube Co., 343 U.S. at 644–45 (Jackson, J., concurring in the judgment)." (second set of italics added)), aff'd in part, rev'd in part, 155 F.4th 929 (7th Cir. 2025) (per curiam), stay denied, Trump v. Illinois, No. 25A443, 2025 WL 3715211, 607 U.S. —- (Dec. 23, 2025) (per curiam).
I recently returned from a two-week trip to Israel where I taught a course on "Knowledge and Democracy" at the law faculty at Uriel Reichman University (the former IDC Herzliya). I also did presentations at both Uriel Reichman and Tel Aviv University (both schools are among Israel's leading academic institutions). During our time in Israel, my family and I also met with Israeli relatives of mine, various Israeli academics, and even a justice of the Israeli Supreme Court (that latter discussion is confidential; I promised not to write what she said). I saw a society that is resilient, but also beset with difficult challenges. Many Israelis also worry about the future of their relationship with the US.
This was my fifth trip to Israel, but the first in which I was actually a visiting professor at an Israeli university, and the first since the October 7 war. Given worldwide attention on Israel in recent years, my impressions may be of some interest. But I must caution that I do not speak Hebrew or Arabic, and I am not a true expert on Israeli politics and society. Also, although I have a variety of contacts in Israel, those I know are by no means a representative cross-section of Israeli society. Thus, the analysis here is just one part of a broader picture. But it could be helpful, despite its unavoidable limitations.
Some recent accounts of Israel depict a society traumatized by the events of October 7 and the resulting war. I didn't get that impression. Most of the people we met seem upbeat and going about their ordinary lives. Unless and until the subject of the war comes up, you would hardly know they have been through one. I have seen people traumatized by war and repression, such as some of the Cambodian refugees I worked with as a college student, or some Ukrainian ones I have met more recently. Few if any Israelis I met are like that.
I thought we might encounter more onerous and elaborate security precautions than in my pre-October 7 visits. But, for the most part, we did not. Even when we visited the Israeli Supreme Court (at the invitation of one of the justices), the security was less extensive than at its US counterpart.
At the same time, the war has had an impact, in ways that become apparent when the subject does come up. Israel is a small country (about 10 million people), and almost everyone has friends, relatives, or acquaintances who were killed, wounded, or taken hostage on October 7, or in the subsequent fighting. About 1200 Israelis (mostly civilians) were killed on October 7. As a proportion of the population, this one-day casualty toll is similar to all the US losses in the Vietnam War, which occurred over a nine-year period, and about ten times greater than the proportion of the US population lost on 9/11. Many, perhaps most, Israelis also have relatives serving in the armed forces. Typical, in some respects, was a Russian Jewish immigrant ride-share driver I spoke to, who worries that Israel faces ongoing crises with little end in sight; his son is an infantryman serving in Gaza.
Most people are happy that the US-sponsored October ceasefire deal with Hamas led to the release of the remaining hostages (I myself am not a fan of such hostage deals), but worry that the peace may not last. The arrangement leaves Hamas still armed and in control of much of Gaza, and fighting could easily break out again. Many are also angry at the government led by Prime Minister Benjamin Netanyahu, who is widely blamed for being taken by surprise by the Hamas attack. Polls show that Netanyahu's right-wing coalition government is likely to lose next year's election, though it is not clear that the opposition parties (who are internally divided on various issues) will be able to form a stable government themselves. They ultimately failed last time they tried, in 2021-22.
In addition to the war and its aftermath, Israel also faces serious internal divisions. One that came up a lot in my discussions with Israeli academics and others is the conflict over judicial review. Before October 7, the right-wing coalition government sought to enact new legislation that would have largely gutted judicial review in Israel. These attempts sparked extensive public opposition, including massive protest demonstrations. The government partially backed off, and the war for a time put an end to its efforts.
But, in recent months, the ruling coalition has sought to enact this agenda by stealthier means, and has also impeded the appointment of new Supreme Court justices (thus, the Court now only has 11 justices, as opposed to the allotted number of 15). Israeli academics and other experts I spoke to are divided in their assessment of whether the government is likely to succeed in these efforts, and what effect they will have if it does.
Israeli legal scholars are disproportionately left of center (though, as one put it, somewhat less so than their US counterparts, because - he said - "we have lived through war"). Thus, almost all those I spoke to oppose the government's plans. I largely agree. I oppose right-wing efforts to destroy judicial review in Israel for much the same reasons as I object to left-wing proposals to do so in the US. In addition, I worry that ending judicial review in Israel would lead to a tyranny of the majority in a nation which has few other checks on the power of the government of the day. Israel has neither federalism nor a system of separation of powers.
At the same time, many Israeli academics and experts on constitutional structure also recognize that it is problematic to rely so exclusively on judicial review as a check on government power, especially in the absence of a written constitution clearly delineating the powers of government, and constraints on them (which Israel still does not have, almost 80 years after the establishment of the state). Most I asked about the topic favor creating a constitution. But there is deep disagreement over such basic issues as whether there should be a federal state or a unitary one, the role of religion in public life (religious bodies currently control personal status law in Israel, such as on matters of marriage and divorce; many Israelis would like to replace this system with a secular one), the extent to which the government should privilege Jews over other groups, and more. Disagreements in the broader public are even more extensive than among academics and experts.
I could be wrong. But I am not optimistic that these divisions are going to be overcome anytime soon. For that reason, I doubt that Israelis will - at least in the near future - be able to generate a sufficient consensus to establish a written constitution or resolve related divisive issues about judicial review, religion, and national identity. Thus, the conflict over them is likely to continue for some time to come.
The topic of political and constitutional developments in the US also came up repeatedly in my discussions with Israeli academics and policy experts. Most of them follow US law and public policy closely, and many write about these issues in their professional work. Many of them are worried about the erosion of liberal democratic norms and constitutional constraints since Trump returned to power. Again and again, I heard statements to the effect that they used to admire and respect US constitutional democracy, but now have serious doubts about it. There is a striking parallel here to the very similar sentiments I heard from Mexican academics and former government officials during my recent visit to that country. We would do well to heed these warnings, but I fear those who most need to hear them probably won't.
Israeli academics also have a very different set of concerns about the US. Several raised with me the issue of outbreaks of anti-Semitic and anti-Israel bias, harassment, and violence on US college campuses. Israeli academic institutions have close connections to their US counterparts, and this issue was deeply troubling to my Israeli colleagues, many of whom have been students or visiting faculty in the US.
I think these concerns are sometimes overblown, and anti-Semitic incidents have died down considerably over the last year. Dramatic cases of violence and harassment understandably attract more media attention than the much larger number of cases where Jewish and Israeli students and faculty on US campuses go about their business without incident. That said, it's hard to deny there is a genuine problem here, and that some schools have tolerated misbehavior from anti-Israel activists that they would never have accepted coming from right-wingers. We in the US academic world should do a better job of addressing it. I think the two David Bernsteins (including my co-blogger David E. Bernstein) are largely right in arguing that colleges should broadly tolerate free speech (including anti-Israel and even anti-Semitic speech), but crack down on violence, harassment, and discrimination.
The focus of "Knowledge and Democracy" - the course I taught at Uriel Reichman University - is the problem of voter ignorance, an issue on which I have written a book and many articles. The university administration chose this topic over several others I offered them. Interestingly, my recent Mexican hosts made much the same decision when I offered them a choice of possible lecture topics. One can say that recent events have made the topic of political ignorance great again, though I think it has always been a serious problem.
As in Mexico and other countries where I have spoken about this issue in recent years, few academics and students seem sympathetic to arguments to the effect that voter ignorance is not a significant problem, even though I devote considerable time to such ideas in my talks and in the class I taught. These days, there is widespread agreement - in many nations - that voter ignorance is a dangerous menace, but equally widespread disagreement over potential solutions (I go over several possible options here).
As a native speaker of Russian myself, I was able to communicate extensively with members of the large Russian-speaking minority (about 15-20% of the Israeli population). Russian immigrants (most of them Jews, but also many non-Jews allowed to immigrate as close relatives of Jews). Almost everywhere we went in Israel, there were many Russian speakers, and it was easy to strike up conversations.
In general, Russian-speaking Israelis seem happy to be in Israel, relative to their countries of origin. But many are troubled by growing political conflict and polarization within Israel, and by the constant sense of crisis. There is also great variation in the extent to which they feel assimilated in Israel, though on the whole assimilation seems substantial.
One Russian-speaking native of Kyiv told me straight out that he liked Ukraine better than Israel, felt more comfortable there, and would move back, if not for the war unleashed by Vladimir Putin, which as disrupted life in Ukraine far more than the October 7 war has disrupted it in Israel. This man was unusual in actually wanting to move back to Ukraine (he noted that his own family disagrees with him). But, like him, many Russian-speaking Israelis are actually from Ukraine, and still have friends and relatives there. Thus, many closely follow the course of the Russia-Ukraine War, as well as the October 7 war that beset Israel. They are, in a sense, impacted by two wars at once.
Most Russian-speaking Israelis - even those who are from Russia itself, as opposed to Ukraine and other countries - have little love for Putin's regime, and oppose his war of aggression. But a minority do buy into Putinist propaganda, sometimes getting it from Russian government media (which is readily available online). One even forcefully defended the Kremlin line that Ukraine started the war and that the country is ruled by "Nazis." I noted that it doesn't often happen that a Nazi government is led by a Jew (Ukrainian President Volodymyr Zelensky is Jewish). My interlocutor was not persuaded, but two of his relatives (who were with him) jumped in to support my point.
The conventional wisdom on Russian-speaking immigrants is that they have moved Israeli politics to the right. This is likely true when it comes to security policy, though the impact of the Russians is likely less significant than that of the failure of the Oslo peace process, and the resulting upsurge of terrorism. On the other hand, the exact opposite is true when it comes to another big issue that divides Israeli society: the conflict over the role of religion in the state. Most Russian-speaking immigrants are highly secular, and would be happy to eliminate the privileges given by the state to the rabbinical establishment (which controls personal status law for Jews), and the ultra-Orthodox "Haredim" (who enjoy substantial government subsidies and exemptions from the military draft).
One of my Russian-Jewish Israeli relatives married a non-Jewish woman (also a Russian immigrant); they had to go outside the country to do it, because Israeli authorities will not perform interfaith marriages. This kind of situation is far from unique, and causes considerable resentment. Russian-Israeli politician Avigdor Lieberman leads Yisrael Beteinu, an opposition party that is hawkish on security issues, and also advocates a secular state. Lieberman draws much - though by no means all - of his support from other Russian immigrants.
In sum, what I saw cuts against the idea that is Israel is deeply traumatized. But the country does face significant challenges, including deep structural issues and divisions that will not be easy to resolve.
This is not the place for a general statement of my views on Israel's political system or the Israeli-Palestinian conflict. But for a compendium of my writings on these and related issues, see here. In that post, I also briefly explain why Israel is not an exception to my general opposition to ethno-nationalism.
In conclusion, I would like to thank Uriel Reichman University for inviting me to be a visiting professor, and various Israeli friends, relatives and academic colleagues for their generous hospitality. I emphasize that this post reflects my own views and impressions, and I alone am responsible for it.
From Magistrate Judge Autumn Spaeth (C.D. Cal.) Nov. 26 in Ngo v. City of Westminster (appeal pending); Westminster is a majority-Asian suburb of L.A. (in Orange County):
The following SAC [Second Amended Complaint] allegations are substantively identical to the allegations asserted in the FAC. A bagua mirror was displayed on a wall outside the Mayor's Office front entrance, a location that was part of city hall. The bagua mirror is an ancient Chinese religious symbol related to the beliefs of Taoism and Feng Shui. Plaintiff is a devout Catholic who was offended by the display of the bagua mirror (the "Bagua Mirror").
On September 25, 2024, Plaintiff [who was at the time running for City Council] held a press conference at the Westminster City Hall, with the intent to bring attention to the Bagua Mirror. During the press conference, Plaintiff removed the Bagua Mirror from the wall. Westminster police officers arrested Plaintiff. Following the press conference, the Mayor publicly criticized Plaintiff and claimed Plaintiff was not fit to be a member of the Westminster City Council due to Plaintiff's status as a criminal defendant….
The Supreme Court has ruled that government conduct which the framers of the First Amendment would have understood to establish a religion violates the Establishment Clause. Kennedy v. Bremerton Sch. Dist. (2022). Coercion, such as making a religious observance compulsory, forcing anyone to attend church, or forcing anyone to engage in formal religious exercise, are "hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment." By contrast, government conduct which in the history and understanding of the Establishment Clause was not considered impermissible coercion, does not violate the Establishment Clause. The "Establishment Clause must be interpreted by reference to historical practices and understandings." The Establishment Clause does not "compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious."
Feinstein v. Currie, decided by Palm Beach (Fla.) County Circuit Judge Maxine Cheesman on Nov. 11, 2024 but just recently posted on Westlaw, involves two Facebook posts on the Town of Ocean Ridge Facebook page:
[1.] Hi yes, I'm wondering if wondering if Mayor Susan Hurlburt and her felching cronie [sic] Mark Feinstein are still being allowed to pollute our beautiful ocean with hazardous refuse?
[2.] Hey let me just go down to the beach in front of Susan Hurlburt and her felching cronie [sic] Mark Feinstein's house at Turtle Beach and get myself cut up on the signage they're trying to keep held in place by jagged metal footing.
Last month, the jury concluded that the statements were defamatory statements of fact (rather than "rhetorical hyperbole, a vigorous epithet, or opinion that cannot reasonably be interpreted as stating actual facts") said with knowledge or recklessness as to their falsehood, and awarded plaintiff $135K in compensatory damages. Back in November of last year, the court denied defendant's motion for summary judgment, concluding that the case should indeed go to the jury (though the opinion wasn't posted on Westlaw until several days ago, which is when I learned of the case):
More than a quarter century ago [in 1999], the City of Gary (the City) sued various manufacturers, wholesalers, and retailers in the firearms industry (Defendants) for injunctive relief and money damages for the harm allegedly caused by, among other things, the unlawful marketing and distribution of handguns. After three prior appeals, the most recent in 2019, some of the City's claims for public nuisance and negligence survived the pleading stage; other claims were found to be barred by Ind. Code § 34-12-3-3 (the Immunity Statute), which was amended in 2015 to make it retroactive to a date just before the City's lawsuit against Defendants began. See City of Gary v. Smith & Wesson Corp. (Ind. Ct. App. 2019) (Gary 3).
While the case remained pending in the trial court on remand after Gary 3, the Indiana General Assembly passed House Enrolled Act No. 1235 (HEA 1235) and declared it an emergency, making it effective immediately upon the Governor's signature on March 15, 2024. This new legislation is codified at I.C. § 34-12-3.5-3 (the Reservation Statute) and provides, with few exceptions not applicable here, that "only the state of Indiana may bring or maintain an action by or on behalf of a political subdivision against a firearm or ammunition manufacturer, trade association, seller, or dealer[.]"
The court concluded that the statute was constitutional (contrary to the view of the trial court), and ordered that the City's lawsuit should therefore be dismissed. Some excerpts from the long opinion:
[1.] The Reservation Statute is not unconstitutional special legislation.
From Judge André Birotte (C.D. Cal.) in Cloobeck v. Villaraigosa, decided Dec. 8 but just posted on Westlaw:
This action arises out of the 2026 California gubernatorial election and the use of the phrase "PROVEN PROBLEM SOLVER." … Cloobeck's First Amended Complaint (FAC) alleges as follows:
Cloobeck and Villaraigosa [were at the relevant time] both candidates in the 2026 California gubernatorial race. Cloobeck has been using the phrase, "I AM A PROVEN PROBLEM SOLVER," (the "Senior Mark") in connection with his gubernatorial campaign since March 2024…. On December 12, 2024, Cloobeck filed an application to register the Senior Mark with the U.S. Patent and Trademark Office ….
Months after Cloobeck's first use of the Senior Mark in connection with his 2026 California campaign, Villaraigosa began using the phrase "PROVEN PROBLEM SOLVER," (the "Infringing Mark") in connection with his campaign. Villaraigosa displayed the Infringing Mark publicly including on his website and social media accounts….
This is a story about a man with incredible luck. It was made possible by some remarkable lawyers and judges, and it ended unpredictably. It is the story of Benjamin Gitlow (1891–1965), a man who loved a freedom others feared. It is also a short story about a segment of the history of the First Amendment, a history that Gitlow v. New York (1925) helped to shape. Curious then that the same man who first fought for freedom later fought to suppress it—he was intolerant of those with opposing opinions. In time, his turncoat stripes would reveal his true colors, which made his life story all the more curious. Moral: We take our free speech heroes as we find them, warts and all.
From the long opinion by Chittenden County (Vermont) Judge Colin Owyang in Doe v. Deluca, decided Dec. 15 but posted on Westlaw a few days ago (an appeal is pending):
On March 18, 2025, DeLuca recorded a 29-minute video that included Doe and others standing in public view outside a homeless shelter and warming center on Pearl Street in Burlington. An approximately two-minute portion of that video captures Doe speaking and apparently recording or attempting to record DeLuca on Doe's cell phone. The video shows other people closer to Doe than DeLuca who remains on or near the public sidewalk. Doe speaks to DeLuca who does not respond. DeLuca turned Doe's speaking portion of the video into a YouTube "short" video. DeLuca posted both videos to his YouTube channel, for commercial profit according to Doe. Doe never gave DeLuca consent to record him or use his image….
The court rejected Doe's intentional infliction of emotional distress claim:
Doe has alleged that (1) DeLuca's "act of recording a vulnerable, homeless individual and exploiting their image for profit, without consent, can be considered outrageous and intolerable," and (2) DeLuca's "actions have caused the plaintiff, Jonn Doe, severe emotional distress, including anxiety and PTSD." ….
"Vermont recognizes the tort of intentional infliction of emotional distress. To prevail, plaintiff must demonstrate 'outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct.'" "To satisfy the IIED standard, "[p]laintiff[] bear[s] 'a heavy burden that requires … show[ing] that the [defendant's] conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a civilized community and be regarded as atrocious and utterly intolerable.'" …
The videos show DeLuca recording a group of people in public view, including Doe. DeLuca speaks in a conversational tone at the intended audience of his videos, not to Doe or the people around him. Doe speaks to DeLuca and appears to record DeLuca on Doe's phone. Throughout the exchange, DeLuca remains on or near the public sidewalk and several other people appear physically closer to Doe than DeLuca, contextualizing that DeLuca maintained socially appropriate physical distance from Doe during the recording.
This court holds that a now commonplace occurrence like DeLuca's recording by cell phone of Doe in public and posting it online without more does not constitute as matter of law the sort of objectively outrageous conduct required for an IIED claim….
The court likewise rejected plaintiff's right of publicity / commercial misappropriation of identity claim:
Plaintiff Eric Esquire Deters ("plaintiff"), who claims to be a retired attorney, filed this action pro se against several judges and a state legislator for alleged unlawful conduct implicating plaintiff's medical malpractice litigation on behalf of his clients…. [P]laintiff's pleading suffers from various threshold deficiencies that preclude consideration on the merits and require dismissal. As detailed below, plaintiff's legal claims fail to invoke the Court's subject matter jurisdiction. His asserted claims do not meet the requirements of Article III standing. Moreover, many claims are either barred by an applicable immunity or are patently and utterly implausible. The complaint also fails to comply with the pleading requirements of Fed. R. Civ. P. 8(a)(2). And plaintiff's recently filed amended complaint was filed in violation of the time limits established in Fed. R. Civ. P. 15(a)….
It is not the role of the Court to "search the record and construct arguments[;] [p]arties must do that for themselves." … Beyond peppering the complaint with extraneous and irrelevant material, plaintiff has also improperly used his pleading to launch personal attacks on defendants and others. Throughout the complaint, plaintiff offers opinions of defendants and their associates untethered to the facts of the case and laced with abusive and charged language. For example, plaintiff alleges that "Defendants' treatment of the Durrani victims and [him]self is the evil and insidious performance of scoundrels." He gratuitously adds that "based upon the Defendants' conduct, no more repugnant human beings have ever served on the judiciary and…the legislature." Continuing this train of thought, plaintiff charges that "[t]he Defendants, like the Devil, rationalize all their sins. The Defendants have unquenchable thirst to fulfill their scheme with their very souls for sale." He concludes by opining that "hell awaits the Defendants and their co-conspirators." {With respect to one individual defendant, plaintiff adds "I hate her. I loathe her. And the world knows why."}
"Legal pleadings are no place for demeaning and derogatory comments, [and] personal insults[.] They bring public scorn on the legal profession and the judicial system." No matter how strongly plaintiff believes that his former clients have been wronged, such abusive language has no place in any litigation. Plaintiff is hereby admonished for his unprofessional attacks upon defendants. Should he find himself in federal court in the future, plaintiff would be wise to confine his filings to proper allegations and arguments.
Ultimately, the Court finds that plaintiff's complaint is anything but a "short and plain statement" showing entitlement to relief. Fed R. Civ. P. 8(a)(2). To attempt to understand plaintiff's legal claims, the Court was required to parse through a convoluted litany of grievances, irrelevant information, personal attacks, and conclusory allegations against defendants. Such verbosity is unacceptable. Plaintiff, as a former practicing attorney, should be aware of the rules of federal procedure and should draft pleadings that conform to these strictures. It is not the Court's obligation to unravel the allegations and construct claims against defendants on behalf of a plaintiff….
Here's the factual backstory, also from the opinion:
