That's from plaintiff's follow-up arguments for pseudonymity filed Saturday in Doe v. Trustees of Univ. of Pa. (E.D. Pa.). Judging by the address listed in the filings, as well as the rhetoric (e.g., "The Jews are a racial supremacist organization whose stated goal is to exterminate and enslave all non-Jews"), this seems to be the same John Doe who was denied pseudonymity in a case I wrote about in February, see No Pseudonymity for Man Suing Harvard Alleging Jews Aim "to Exterminate or Enslave All Non-Jews".

I expect the same ruling on pseudonymity in this case as in that one (despite the addition of the busty Jewess, who did not seem present in that case); to quote Judge Allison Burroughs' decision in that case, Doe v. President & Fellows of Harvard College:

While it is within the Court's discretion to allow a party to proceed under a pseudonym, "[a]s a general rule, the presumption is that all judicial proceedings remain open to the public." "The presumption against pseudonymous litigation gives way only in 'exceptional cases.'" The analysis is as follows: "1) there is a presumption in favor of disclosure; 2) a party may rebut the presumption by showing that a need for confidentiality exists; 3) the court must balance the need for confidentiality against the public interest in disclosure." Alleged risks of harm that are speculative in nature, generalized, or without corroboration do not justify anonymity.

Having considered Plaintiff's Motion, the Court finds that Plaintiff has not rebutted the presumption in favor of disclosure. Plaintiff states that the litigation involves sensitive personal information regarding Plaintiff's ethnic heritage and academic records, and Plaintiff's identification would risk causing Plaintiff "unusually severe" professional, financial, and physical harm. The alleged risks that Plaintiff sets forth in his motion are without corroboration and do not rise above a level of mere speculation. Further, lawsuits often "implicate substantial amounts of private information," and if warranted going forward, the Court may employ tools such as redacting or sealing documents to manage privacy concerns that arise during the litigation. In light of the foregoing, Plaintiff's Motion, is DENIED.

To be precise, it does seem likely that being publicly known to have made such arguments may cause "professional" and "financial" "harm." But many plaintiffs face the risk of professional and financial harm from their lawsuits.

Consider, for instance, employment law plaintiffs who might reasonably worry that future employers won't want to hire them if they're identified as litigious employees. Or consider plaintiffs who think they were fired based on race, sex, etc., but worry that the defendants will argue that they were instead fired because they acted incompetently or unethically. Or consider libel plaintiffs who worry that public filing will just further amplify the allegations over which they're suing.

Courts generally conclude that such risks are a normal feature of our open system of civil justice, and can't themselves justify pseudonymity. (See pp. 1457-60 of The Law of Pseudonymous Litigation for citations to many such cases.) That is likewise so, I think, for this particular would-be Doe's cases. There's a motion for reconsideration of the Harvard no-pseudonymity decision pending, but I don't expect Judge Burroughs to change her mind, and I don't expect Doe to prevail in this new case, either (or on his motion for pseudonymity in Doe v. Regents of Univ. of Cal.)

The post "Plaintiff Was Enticed by an Attractive, Busty Jewess, and Wet His Mouth with a Drink of Partially Unknown Provenance" appeared first on Reason.com.

I often hear people describing "imposter syndrome." At a high level, imposter syndrome is a self-doubt that you are able to accomplish the role you have been chosen for. I think virtually everyone has self doubts about their own abilities. Indeed, it should happen to all of us. Under the so-called Peter Principle, employees are promoted based on their success until they reach a level at which they can no longer be successful. This principle afflicts almost all lawyers, professors (present company included), and judges.

Imposter syndrome takes on a different meaning in the DEI context: a non-white person feels like they do not belong in a predominantly white environment. In other words, they have to act as an imposter in that space. A primary goal of DEI is to reduce imposter system, and make everyone feel welcome and included (that is the "inclusion" in DEI). But in many regards, DEI creates, and exacerbates the very problem of imposter syndrome.

First, imposter syndrome may often be a byproduct of mismatch theory. If a person is admitted to a university, or promoted to a higher position, based on their race, and has objectively lower credentials, that person very well may feel the doubt of imposter syndrome. It may objectively be true that a person admitted through racial preferences does not belong, but for the misguided intentions of social architects. Justice Thomas has written eloquently about how his degree from Yale was worthless because of the perception that affirmative action created. And Thomas has likely explained that would-be beneficiaries of affirmative action would not suffer from affirmative action at an institution where they are matched.

Second, DEI attempts to mitigate imposter syndrome by establishing racial "affinity" groups within organizations. Many workplaces held retreats and offer other mentoring events solely for people based on their race. Universities had separate graduation ceremonies for black and hispanic students. Some colleges even arranged separate housing for minority students. Again, these are efforts intended to make people feel more included and less like an imposter. But in reality, these groups serve to balkanize people based on the very barriers that led to the imposter syndrome in the first place. Moreover, these groups raise doubts among those outside the affinity groups about how inclusive the organization actually is.

Third, speaking of people outside the affinity groups, DEI mandates cultural re-education to eliminate these doubts. Separate graduation ceremonies and racial housing are described as the most normal thing possible, and opposition to them is anti-anti-racist. People are taught to believe, simultaneously, that everyone is welcome but programs are needed to provide a greater welcome to certain people. To paraphrase George Orwell, all workers are equal, but some workers are more equal than others.

At some point, I hope there is a true and complete reckoning about the harms caused by DEI. We have come so far from the days of intentional racial discrimination that an entire industry was concocted to make people feel racial resentment. First, there was a shift from disparate treatment (actual discrimination) to disparate impact (well, there's no actual discrimination, but let's make up some statistics). Second, there was the concept of political correctness ("PC"), where even if you were not being racist, you still could not talk about certain topics that would offend people. Third, there was the concept of microagressions--racism so subtle that you need a microscope to even see it. Fourth, there was implicit bias--people needed to take a completely debunked test to identify non-existent latent racism in their subconscious. Imposter syndrome is in keeping with all of these tests. The Supreme Court's decision in Callais was a long-time coming, and a reflection of how far we've come as a society: actual racial discrimination violates the Constitution, but all of these other attempts to find "razzle dazzle" racism should be discarded.

My advice to young law students and lawyers facing these sorts of self-doubts that you do not belong or lack the ability to succeed? Do what I did: fake it till you make it. Figure out what the successful people in your field do and do that, or even better, do more than that. And if you suffer defeat (we all do), don't wallow in it. Don't hang onto that defeat. Don't blame other people for your defeat. Don't blame society for your defeat. Don't latch onto abstractions like imposter syndrome or white privilege. Figure out how others have overcome that sort of setback, and do that, or even better, do more than that.

The post Imposing Imposter Syndrome appeared first on Reason.com.

Here's the story, somewhat simplified, from a case now labeled Breskin v. Blattberg (D. Mass.) (I had filed an amicus brief opposing pseudonymity, as part of my general opposition to pseudonymity in defamation cases, see, e.g., Roe v. Smith):

1. Son v. mother federal lawsuit threatened: Blattberg accuses his mother, Breskin (a psychologist), of having sexually abused him 30 years ago, when he was 4 to 7 years old. The son claims he "did not remember the abuse until 2024." The son's lawyer sends a demand letter to the mother, threatening to sue, with a draft Complaint attached. They apparently agree that the son's lawsuit won't be filed until the end of February. (Again, remember that these are just the son's claims; nothing has been proved.)

2. Mother v. son state lawsuit filed first, pseudonymously, and under seal: In late February, the mother gets to the courthouse first, by suing the son in Massachusetts state court for defamation over his sexual assault allegations, which the mother says the son had made to third parties (including her mother and other relatives). She claims the son is trying to extort her, and has long "suffered from serious and severe mental illness." The case is filed as Doe v. Doe. The same day, the mother asks that the Complaint be sealed (impounded, in Massachusetts terminology), and the Massachusetts court agrees immediately:

After review, the court treats the current motion as an ex parte motion to impound under MA R Impound P Rule 3. The court finds that immediate and irreparable injury may result if the motion is not allowed. See MA R Impound P Rule 3(a). Nevertheless, under the Rule, an interested party must have an opportunity to be heard in opposition within ten days of this order. MA R Impound P Rule 3(a).

3. Son v. mother federal lawsuit filed, mother v. son removed to federal court: The next day after the mother sues, the son sues the mother in federal court (there's apparently diversity jurisdiction), using the caption Blattberg v. Breskin. The day after, he removes the mother's Doe v. Doe case to federal court, as he's entitled to do because he and his mother are citizens of different states.

4. Mother's motion to dismiss and seal son v. mother lawsuit, and to proceed pseudonymously on the strength of the pseudonymous mother v. son lawsuit: Four days after the son sues, the mother moves to dismiss the son's federal case, on the grounds that she "previously filed a prior pending action against the Plaintiff arising from the same alleged facts and causes of action." She also moves to seal the son's federal case, and seeks a protective order "against any additional disclosure of the parties' identities." Judge Richard Stearns (D. Mass.) shows at least temporary openness to this; he declines to dismiss the case, but consolidates the mother's and son's now-federal cases, and rules,

[I]n light of the Impoundment Order issued in the previously filed state-court action involving the same parties which has been removed here and is now pending before Magistrate Judge Donald Cabell, this court will provisionally seal the Complaint and this motion. The court will revisit the issue in sixty days when the procedural posture of these cases will be sorted out.

5. Denial of pseudonymity for the consolidated lawsuit: Finally, a week ago, Judge Stearns' denies pseudonymity and largely unseals the case (except for one affidavit), which is now called Breskin v. Blattberg (and will contain, consolidated, both the mother's defamation claims and son's sexual assault now-counterclaims):

Although there is a strong presumption against litigants proceeding anonymously, the First Circuit has identified four general categories of cases in which party anonymity may nonetheless be warranted:(1) cases in which disclosure of the would-be Doe's identity would "cause him unusually severe harm"; (2) "cases in which identifying the would-be Doe would harm 'innocent non-parties'"; (3) "cases in which anonymity is necessary to forestall a chilling effect on future litigants who may be similarly situated"; and (4) "suits that are bound up with a prior proceeding made confidential by law." Doe v. Town of Lisbon, 78 F.4th 38, 46 (1st Cir. 2023), quoting Doe v. Massachusetts Inst. of Tech., 46 F.4th 61, 71 (1st Cir. 2022). Plaintiff contends that she satisfies each paradigm.

The court does not agree. As to the first paradigm, she has not shown that her distress, although no doubt severe, is unusually so for a defamation plaintiff.

As to the second paradigm, the court does not see how allegations against plaintiff would make plaintiff's mother more vulnerable or impact former clients with whom the treatment relationship has ceased. [The mother had argued that the son's "allegations will likely have a rippling and destructive effect on innocent third parties such as [the mother's] former patients and current community of bereavement group members, none of whom are parties to this litigation, and all of whom may well question her and their relationship with her in the face of such public and scandalous lies. Encountering allegations like those made by [the son] will imperil the trust, stability, and well-being of the many people who have in the past counted on [the mother's] professional advice and counsel" -EV]

As to the third paradigm, the court does not credit the suggestion that publicizing plaintiff's name will have a chilling effect on future defamation plaintiffs. Because the point of a defamation suit is to prove the falsity of allegations like those made by defendant here, similarly situated defendants will still be motivated to pursue litigation.

Finally, as to the fourth paradigm, plaintiff does not sufficiently identify which "prior proceeding" upon which she relies. If she intended it to be the state court action consolidated with this action, that proceeding is ongoing, not prior. In any event, a plaintiff cannot rely on the ruling of the state court, which applies a broader standard than federal court, to justify proceeding pseudonymously in federal court. [In an earlier order, the judge noted that, "anonymity in federal court is governed by the standard set forth in [Doe v. MIT], rather than any state court procedural rule which may have underlain the prior grant of impoundment." -EV]

In denying the motion, the court does not mean to downplay plaintiff's understandable desire to maintain as much privacy as possible in this sad family dispute. The court is merely constrained by the narrow approach taken by the First Circuit (and other Circuits) to anonymous pleadings.

This ultimate outcome quite correct to me. I can understand, of course, why the mother would want to proceed this way, and if the son is indeed trying to extort money from her through false assertions, I can sympathize with her preferences. But of course it's not clear who's telling the truth here—and presumably if the mother have prevailed here, the same trick could have been used by a wide range of defendants to seal cases against them (whether sexual assault cases or other cases).

The post Use This One Weird Trick to Keep Your Name Out of an Upcoming Sexual Assault Lawsuit Against You appeared first on Reason.com.

The post Today in Supreme Court History: May 20, 1996 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

In 2003, in connection with the invasion of Iraq, the United States Department of Defense developed a deck of playing cards, titled "Iraqi Most Wanted," to help familiarize troops with members of Saddam Hussein's government and inner circle. Approximately 20 years later and days after UnitedHealthcare CEO, Brian Thompson, was shot and killed, Plaintiffs James Harr and Comrade Workwear, LLC developed a deck of cards, modeled after the U.S. military's deck, titled "Most Wanted CEOs." … Plaintiffs' cards:

featured a well-known corporate executive, their affiliated company, and a QR code linking to educational content about the harm their company allegedly caused, with each suit representing an industry—pharmaceuticals and chemicals, essential goods and housing, finance and tech, and weapons and oil—all based on public information, with no contact details or other personal information included.

On December 15, 2024, Plaintiffs unveiled the final designs for the Most Wanted CEO cards and launched preorders. The product description for the cards read: "For educational and entertainment purposes only." Later that day, NYP [the New York Post] published an article on its website that claimed Plaintiffs "call[ed] online for the death of corporate executives" and linked "the release of the playing cards to the recent homicide of UnitedHealthcare CEO Brian Thompson" (the "Article"). The Article included a screenshot of one of Plaintiff's social media posts which contained the phrase: "The CEO must die." The screenshot in the Article omitted Plaintiffs' caption to the post, a "disclaimer" that read, in part: "When we say the CEO must die, we mean the structure of capitalism must be broken."

On December 16, 2024, NYP published the Article as its cover story. Overnight, the Article, and, consequently, Plaintiffs' playing cards were front-page news. That same morning, New York City Police Department ("NYPD") officers arrived at Harr's home and spoke with his fiancée. A little later, officers interviewed Harr at his workplace and "questioned him about the cards and whether he had violent intent or ties to any extremist groups." Plaintiffs allege Harr informed the officers that "he was an independent artist running a merchandise company, that the cards were a symbolic and educational project, and that he had [already] made public disclaimers rejecting violence."

The next day, [NYPD] Commissioner Tisch spoke at a press conference announcing that an individual had been arrested in connection with the investigation of Mr. Thompson's homicide (the "December Press Conference"). Plaintiffs allege that Commissioner Tisch "held up [the print edition of the Article] and falsely described [Plaintiffs'] playing cards as a 'hit list,' call[ed] him an 'extreme activist,' and part of a 'lawless, violent mob' calling for the 'targeted assassination' of CEOs." …

The Commissioner's statements, Plaintiffs claim, marked the inception of a campaign to punish Plaintiffs for the cards. In their view, the Article, NYPD interviews, and December Press Conference were part of "a coordinated effort to distort the nature of [Plaintiffs'] work and publicly reframe [them] as a threat in order to support a broader narrative around political violence and public disorder."  Before and after the December Press Conference, Plaintiffs were "de-platformed" (i.e., permanently disabled from accessing) several social media and e-commerce platforms that were integral to their business.

Approximately two months after the December Press Conference, law enforcement officials from the NYPD "served a seizure warrant on the FedEx facility where Plaintiff[s'] inventory of playing cards was being stored, resulting in the confiscation of [their] entire preorder shipment." Plaintiffs assert that confiscation of their merchandise was carried out at the behest of Commissioner Tisch and part of Defendants' coordinated effort to "systematically strip[ ] [Plaintiffs] of access to the platforms and tools that allowed [them] to speak, sell, and operate," and inflict "reputational, financial, and constitutional harm." …

Plaintiffs sued Commissioner Tisch, arguing that she unconstitutionally retaliated against them based on their constitutionally protected speech. The court concluded that plaintiffs had sufficiently alleged that their speech didn't fall within the First Amendment exceptions for true threats and incitement:

A "true threat" is a "'serious expression' conveying that a speaker means to 'commit an act of unlawful violence,'" regardless of whether "the speaker is aware of, and intends to convey, the threatening aspect of the message." …

"[A]ccept[ing] as true all of the factual allegations set out in [Plaintiffs'] complaint," and "draw[ing] inferences from those allegations in the light most favorable to [Plaintiffs]," as the Court must at this juncture, the Court concludes that the speech at issue does not constitute a true threat because Plaintiffs' speech does not amount to "serious expression[s] of [their] intent to commit an act of unlawful violence to a particular individual or group of individuals." The playing cards are not enough to convey to a reasonable listener that they were intended as a threat of violence against the "well-known corporate executive[s]" featured on them. The cards included anodyne, publicly-available information about the executives and "educational content about the harm their compan[ies] allegedly caused." Simply, the cards do not convey anything about Plaintiffs' intent. At most, the cards are suggestive, but that is far from a serious expression of violent intent. And, any incidental suggestion of violence is negated by Plaintiffs' disclaimers.

Plaintiffs' statement that "[t]he CEO must die" also cannot reasonably be interpreted as a serious threat of injury. As a practical matter, that statement is directed at "the CEO"—an archetypal executive, not a particular individual or group—and, again, Plaintiffs' disclaimer in the caption of the social media post clarifies that the statement was not one of violent intent, but a more general critique of capitalism writ large.

Plaintiffs' statement "calling Mr. Thompson's killer a 'fucking hero'" does not reflect a threat at all—serious or otherwise. The statement, standing alone or considered alongside the others, may be coarse or disquieting, but that does not remove its First Amendment protection. If anything, it does the opposite.

As for Plaintiffs' statements that purportedly encouraged their social media followers to "do more" to identify where another healthcare CEO lived, City Defendants' argument is far too speculative to establish it as an expression of violent intent, let alone a serious expression of violent intent against that person.

{Had City Defendants argued that this particular statement was incitement, they might have had a stronger point. Ultimately, however, that argument would also fail because there is "no evidence or rational inference from the import of the language, that [Plaintiffs'] words were intended to produce, and likely to produce, imminent disorder." See Brandenburg v. Ohio (1969) (Speech is presumptively protected unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.").}

Even if the Court were to take the playing card design and all the accompanying social media statements together, it cannot conclude that "an ordinary, reasonable recipient who is familiar with the context of the communication would interpret it as a threat of injury." Thus, Plaintiffs' speech is not a true threat. Nor is it incitement, obscenity, or any other form of unprotected speech; it is protected speech. Plaintiffs are constitutionally entitled to condemn and disparage well-known executives of major corporations….

The court didn't consider whether the speech might have fallen within the related but separate exception for solicitation of crime against a specific person (presumably because that argument hadn't been raised); see this post for more on that exception, which the Supreme Court has recognized in recent cases, including U.S. v. Hansen (2023).

But the court nonetheless rejected plaintiffs' First Amendment claims, because it concluded that they hadn't adequately alleged that Commissioner Tisch took adverse action against plaintiffs:

At bottom, the relevant "action" that Plaintiffs allege is an adverse action for purposes of their First Amendment claim is Commissioner Tisch's speech at the December Press Conference. That is insufficient because speech, in response to speech, is not an adverse action, even if it is harsh…  "[I]t is well settled that criticism of [a speaker] alone" does not amount to an adverse action "for retaliation purposes." …

Even if Commissioner Tisch's statements are read "in the light most favorable" to Plaintiffs, they would not "deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." In condemning Plaintiffs' speech, Commissioner Tisch exercised her own First Amendment rights…. [T]o interpret Commissioner Tisch's constitutionally protected speech as an adverse action would effectively flip the First Amendment on its head and allow Plaintiffs to enlist the judiciary to block speech that they do not like….

Even if the Court credited Plaintiffs' speculative argument that Commissioner Tisch's statements amount to an adverse action, their First Amendment Retaliation claim would fail, nonetheless, because Plaintiffs' theory of causation is supported only by their own conclusory allegations.

The Court disagrees with Plaintiffs that it is reasonable to infer that Commissioner Tisch's statements and her official position "significantly encouraged" or "influenced" third parties to remove Plaintiffs' access to social media and e-commerce platforms. Nor does the Court agree that "[t]he timing and context make the causal link [between Plaintiffs' speech and seizure of their work] unmistakable."  Both of those assertions are far too attenuated to be plausible. Indeed, a significant amount of second- and third-order thinking is necessary to find it plausible that Commissioner Tisch's statements at the December Press Conference were intended to set off a chain of events ultimately designed to silence Plaintiffs or others from participating in public dialogue. In fact, to conclude that Plaintiffs' speculative and conclusory allegations are sufficient to survive City Defendants' Motion to Dismiss, the Court would have to make a series of unreasonable inferences.

For example, Plaintiffs assert that the de-platforming decisions were made because of Commissioner Tisch's statements on December 17, 2024. For the Commissioner's speech to have the outsized effect that Plaintiffs claim it did, one might expect that all the de-platforming decisions were made after the December Press Conference. But, according to Plaintiffs, their "main Instagram account was permanently banned" a day before Commissioner Tisch said anything about Plaintiffs publicly.

One also might expect there to be some allegation that Instagram, TikTok, YouTube, Shopify, or other platform providers were directed to disable Plaintiffs' accounts, or at least that they provided some pretextual reason for the decisions. Plaintiffs allege neither. In fact, they concede that the platforms explained their decisions were based not on the Commissioner's or the City's say-so, but on the platforms' own internal policies or decisions from "its banking partners, including Mastercard and Visa." In that case, one might expect, if nothing else, that there would be some allegation that the platform providers saw or knew about Plaintiffs' playing cards, or Commissioner Tisch's statements. But there are no such allegations in the Amended Complaint….

The court also rejected plaintiffs' claims that Commissioner Tisch violated their federal constitutional rights by, essentially, defaming them in a way that imposed "a material state-imposed burden or state-imposed alteration of [their] status or rights" (to oversimplify slightly). The court concluded, among other things, that plaintiffs' hadn't "plausibly allege[d] defamation":

The first allegedly defamatory statement Plaintiffs highlight is that Commissioner Tisch "falsely described [Plaintiffs'] playing cards as a 'hit list.'" However, based on the Court's review of the entirety of the December Press Conference, Commissioner Tisch does not use the term "hit list" once during her address….

Plaintiffs also allege that Commissioner Tisch made defamatory statements … when, while holding up a copy of the December 16, 2024, New York Post, she said: "Yesterday the New York Post reported that some extreme activists were circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination." Plaintiffs take issue with two parts of that statement. They object to Commissioner Tisch's use of the term "extreme activists," and they object to her assertion that the so-called activists were "circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination." …

First, the Commissioner's description of certain individuals as "extreme activists" is not defamatory because it is nonactionable opinion. "New York law protects derogatory statements which may be categorized as 'opinion' as opposed to 'fact.'" …

At the December Press Conference, after summarizing an uptick of "shocking and appalling celebration[s] of cold-blooded murder" in the wake of the Thompson homicide, Commissioner Tisch used the phrase "some extreme activists" to describe a subset of individuals who "were circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination," Here, it is clear that "extreme activists" is an expression of the Commissioner's opinion, not fact. When analyzed in context, the term is used as an insult, a denigration of those who make light of tragedy. It is not an official edict, nor is it "precise, unambiguous [or] definite." Moreover, because the term was "accompanied by a recitation of the facts upon which it [was] based," it is pure opinion. When considered in context, it is merely an epithet and "hyperbole and therefore not actionable opinion."

Even if "extreme activists" was not an expression of Commissioner Tisch's view of individuals capitalizing on the homicide of Mr. Thompson, it is not defamatory because it is substantially true…. Recall that, in context, "extreme activists" was used, among other things, to describe individuals who "were circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination." That is substantially true based on Plaintiffs' own allegations. Harr is a self-described "activist and political artist." Plaintiffs concede that their designs were well-received and garnered positive attention from their followers on social media….

As for the second component of the Commissioner's statement—that individuals "were circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination"—the same point applies. This part of the statement may not be completely true, but it need not be, as long as "the overall gist or substance of the challenged statement is true." Given the context of the December Press Conference and the circumstances surrounding it, the Court concludes that describing Plaintiffs' product as "a deck of cards with other Most Wanted CEOs to be targeted for assassination" captures the "overall gist."

As a preliminary matter, the entire project was inspired by the "Iraqi Most Wanted" cards issued to soldiers in 2003 to help them identify key members of Saddam Hussein's inner circle. This inspiration is apparent in the cards themselves, which, as depicted in the Article, include imagery reminiscent of shooting-range targets. Moreover, the print edition of the Article draws a not-so-subtle connection between Plaintiffs' cards and a "twisted card game to hunt down CEOs."

The fact that Commissioner Tisch did not explicitly mention Plaintiffs' disclaimers renders her statements not "completely true," but it does not mean that "the overall gist" of her statement is demonstrably false. Taken together, "the full context of the communication in which the statement appears," and "the broader social context or setting surrounding the communication," an individual could arrive at the same conclusion Commissioner Tisch did. Accordingly, the Commissioner's description of the playing cards was substantially true….

Commissioner Tisch's third statement, which characterizes social media threats against executives in the wake of the Thompson homicide as "the threats of a lawless, violent mob" … is nonactionable opinion….

Given that the federal claims were dismissed, the court left the purely state law claims (including a defamation claim) to state courts.  For more on that, and on the claims related to the seizure of the materials, see the full opinion. Plaintiffs had also sued the N.Y. Post, but dropped those claims.

Gregory J.O. Accarino represents Commissioner Tisch and the city.

The post Court Rejects First Amendment Claims Against NYPD Commissioner Brought by "Most Wanted CEOs" Card Makers appeared first on Reason.com.

I recently spoke at my daughter's Girl Scouts troop about America's 250th birthday. I brought a box of tea bags, and hid them in the students' backpacks. I then had the girls search through everyone's bags to illustrate the dangers of the writs of assistance. We then threw all the tea bags into a bucket of water to simulate the Boston Tea Party. (I wanted to simulate the Boston Massacre with nerf guns, but I was overruled.) My daughter often complains that no women signed the Declaration of Independence, so I brought a huge parchment copy of the Declaration, and had all the girls sign them with ballpoint quills. They really felt part of the movement.

At the end of the session, I showed them the classic Schoolhouse Rock video, "The Shot Heard Round The World." I wondered how these young kinds would react to such an old school video from 1975. The animation is crude but the narrative is timeless. The music is still entertaining and the lyrics are clear. The Scouts were enraptured and understood exactly what happened. Plus they connected my lesson earlier about the Revolutionary War with the video. They all booed at the Red Coats and King George.

There is a reason we still watch these videos five decades later. Great care, art, and attention was put into producing this video.

This brings me to the Federal Circuit's attempt at a "School House" rock video. I've since learned that Judge Newman was in the room when Chief Judge Moore played the video. The consensus was "WTF?" They literally erased a federal judge from the video. I understand there is a Senate Appropriations Committee hearing coming up with the Judiciary. The Administrative Office should be held to account for Moore's narcissistic taxpayer-funded fever-dream.

But beyond the substance, I have to criticize the art. It is obvious someone asked AI to generate a theme song about the Federal Circuit. And the output reflects that process. The tune was so bland and boring. The lyrics were completely unmemorable. Even now, I can't remember a single line from the song. The animations were clean enough, but the motions were so unnatural. And the imagery made no sense. Why was Ronald Reagan leading a Conga Line with Uncle Sam in the caboose? Why did the Judges wave glow sticks at Studio 54? Why did Chief Judge Moore fly off the bench to do a dance routine?

Anyone with artistic talent would have realized this video was terrible. But that is the dangerous allure of AI: it allows people without talent to pretend to be talented. Before AI, this video could have never been made. With AI, this video should never have been made. And, because everyone at the Judicial Conference was a captive audience, they have to dutifully applaud. No one will be watching this video in fifty years. I doubt anyone will be watching it in five days.

If I may draw a contrast, the award-winning Garland Walker Inn of Court in Houston puts on an annual musical review. This year, in honor of America 250, the Inn produced a show about those who signed the Declaration of Independence, and those who did not. It was funny, moving, and always entertaining. We are blessed in Houston to have such talented judges and lawyers (some of whom are my former students). Chief Judge Elrod and Judge Charles Eskridge were among the leads. One of the lead singers had performed on Broadway. The group did a reprise at the Fifth Circuit Judicial Conference. It was a rousing success.

Even during the pandemic, members of the Houston bench were able to produce a hilarious video inspired by Hamilton.

Patent nerds should not pretend to be talented enough to boast about making a Schoolhouse Rock video. Also, they should stop erasing Pauline Newman.

The post The Dangerous Allure When Untalented People Use AI appeared first on Reason.com.

I am not a fan of Bill Maher. I saw him perform when I was a Summer Associate in 2008 in Washington, D.C. I found him far more smug than funny. Whatever. Not my cup of tea. But I was moved by his recent segment titled "New Rule: No Jews, No News." He makes the obvious, and powerful point, that modern discourse about "colonialism" and "genocide" is simply anti-semitism dressed up in academic garb. It is also noteworthy that there were only scattered applauses in the crowd. The reliably liberal audience was unsure whether it was safe to laugh. Watch it all, or read the transcript after the jump.

Since yesterday was Israel's birthday, having become a nation on May 14th, 78 years ago, everyone must either wish her a happy birthday or admit they're anti-Semitic.

Now, it's everyone's right in a free country to be anti-Semitic, but enough with hiding behind Israel or Zionism or Netanyahu.

If you think, as so many do now, that when it comes to human rights, Israel is the monster country of all time, you either don't read or you don't care about your own hypocrisy.

Because there are so many worse places. But that's where we are these days. No Jews, no news.

But China, Russia, Sudan, Iran, Myanmar, Haiti, the Congo, North Korea, all way worse.

And that's how you know it's anti-Semitism. It's the inconsistency.

People talk about Jews these days like something out of Stormfront, except it's not Stormfront.

It's an editor from The American Prospect, which is a venerable liberal publication that launched the careers of journalists like Ezra Klein.

And yet no one blinks when one of their editors says, "Israel is a brainwashed, psychopathic death cult that might need to be nuked to save the human race." Uh-huh.

People say the left and the right can't agree on anything these days. Well, there is this one thing they agree on. Right-winger Tucker Carlson has Nick Fuentes and Holocaust deniers on his podcast and wonders along with them,"Who really was the bad guy in World War II?" And The New York Times has on their podcast super leftist Hasan Piker, who they call "a progressive mind," and who says Zionists "should be treated the same as Nazis," which I assume means hung at Nuremberg.

That's what progressive is now? I guess so. The kids are sure into it. They went nuts last year at Coachella for Kneecap. That's the name of an Irish rap group. As if Ireland hasn't suffered enough. Their stage set is a sign that says, "Fuck Israel." And then they send a beach ball around the crowd.

Again, ha ha.

Because again, Israel is the only country in the world doing anything bad. I see why the meathead manosphere and the Code Pink people are on the same page. Because they both went to high school in America and they don't know anything.

So we really could someday soon have the tiki torch "Jews will not replace us" crowd and the Queers for Palestine people working together to elect the next Hitler. There's a North Carolina teenager who's been charged with plotting to drive through a synagogue to fulfill her life goal of killing "as many Jews as possible," because a kid's gotta have a dream. I'm just asking why in the world would this be the dream of some kid in North Carolina?

Why is it the dream of Dan Bilzerian, who's running as a Republican to win a House seat in Florida? Who's Dan Bilzerian? Well, he's a professional douchebag who's attracted 30 million followers by doing this all day and posting it. Yes, he'll fit in fine with the current congress And Dan is fairly typical of the guys in the manosphere when he says, "The only real battle in the world today that I see worth fighting is, fuckin', you know, exterminating Israel. I would sign up tomorrow to go fuckin' put boots on the ground and go fuckin' kill Israelis." Why? Why is this asshole's life about two things, getting more Viagra and exterminating the Jews?

Israel was founded on the idea that anti-Semitism made a Jewish state necessary because Jews would never be safe without one. Can you honestly listen to this rhetoric and not see why that turned out to be true? If you don't have the right-wingers on your side and you don't have the progressives, what do you have?

What's more progressive than college, where professors now say things that would make Kanye wince? Osman Umarji calls Zionists "bloodthirsty animals." Who's he, the leader of ISIS? No, he's a professor right here in California at UC Irvine. And Candace Owens agrees with his assessment of Jews as animals because she says, "Wherever they go, they bring their filth with them." Another "professor," Hamid Dabashi, says of Israelis, "They have a vulgarity of character that is bone deep and structural to the skeletal vertebrae of its culture." These are the kind of statements Goebbels would have read and said, "No notes." I mean, where are the Jewish space lasers when you need 'em?

Now, there are absolutely horrible things said about Muslims, too. That should also be, of course, roundly condemned, like Republican Congressman Randy Fine saying, "If they force us to choose, the choice between dogs and Muslims is not a difficult one." That's awful. But it's not the same as, "They need to be nuked," and "Let's exterminate them."

This is why Jewish people here and in Europe now say they sometimes hide their identity, afraid that the Star of David will get them attacked, as has happened in almost too many places to mention lately. Leave your Star of David at home. But the keffiyeh? You can wear that anywhere. You can wear it to Fiddler on the Roof and you'll get applause. Jew hatred isn't just acceptable now, it's cool. Celebrities love it and make it trendy. It's the new Che Guevara t-shirt.

The "Islamophobia is just as bad" argument is simply a false equivalency. Can you name a Jewish professor who talks about Muslims the way they get talked about? No. Anti-Jewish crimes, hate crimes, now outpace anti-Muslim hate crimes nine to one. It's not a contest, and I'm certainly not saying do more of the other.
I'm just saying these are the numbers, the facts, the reality.

There is a frothing anxiousness for the literal extermination of this one group. And Democrats, where are you? If any other minority group was being talked about this way, you'd break out the kente cloth and have ten benefit concerts. But because you see that so many of your brainwashed-by-TikTok constituents now have an unfavorable view of Israel, you indulge them when you should be correcting them. You don't tell your woke idiots Israel isn't a colonizer or an apartheid state or committing genocide, and that if you brats had to spend a week anywhere in the Middle East other than Israel, you would understand what liberalism is not. All the people likely running for president now on the Democratic side want it known they don't take money from AIPAC, the Israeli lobby, a stance which gives permission to actual anti-Semites to say, "See? We're right about Israel. hat's dirty money from a dirty country." Oh, please, you take money from crypto, and factory farmers, and big tech, from Diddy, and Weinstein, and Epstein, but AIPAC is too far?

Let me just say this to all who ask me, "Why are you harder on the Democrats than you used to be?" Until you fix this whole issue, stop asking me.

The post Bill Maher On The Blatant Double Standard For Antisemitism appeared first on Reason.com.

From Brooks v. Lowes Home Centers LLC, decided yesterday by Judge Jerry Edwards, Jr. (W.D. La.):

In resolving a prior motion in this case, the Court discovered that the plaintiff's briefs contained misquoted or mischaracterized precedent…. Mr. Wilkins[, one of plaintiff's lawyers,] took full responsibility. Wilkins explained that he utilized an artificial intelligence ("AI") platform, Claude, to generate the brief. As part of his process, Mr. Wilkins had Claude's draft reviewed by a human law clerk, who discovered that Claude had hallucinated quotations. Mr. Wilkins then confronted Claude with the identified errors and entrusted Claude to correct them. Instead, Claude just made up more stuff. Mr. Wilkins filed that second output into the record without review.

To prevent this from happening again, Mr. Wilkins will have "a human with a law degree" perform a final check of every citation and quotation before filing briefs with the Court. Now for the Court's sanction.

We commend Mr. Wilkins for his candor, honesty, and the remedial measures he has undertaken since the filing of the offending brief. But these mitigating factors do not excuse Mr. Wilkins' conduct. "At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely." Unchecked, unleashing AI on the Court creates a "burden." Ignorance of the risks of AI usage is no longer an excuse. And here, Mr. Wilkins affirmatively knew the risks. How he then could have blindly and solely trusted Claude to remedy the brief is difficult to fathom.

Wilkins was therefore sanctioned $1000.

The post "Instead, Claude Just Made Up More Stuff" appeared first on Reason.com.

In every state and in the federal criminal justice system, when a crime victim is killed, the law allows a family member or other representative to step into the victim's shoes and assert the victim's rights. That framework has become a routine and influential feature of modern criminal justice, embedded in statutes, constitutional provisions, and everyday courtroom practice. Yet despite its centrality, the justifications for this arrangement have received relatively little sustained scholarly attention. That gap has become more apparent following Professor Lee Kovarsky's recent article, "The Victims' Rights Mismatch," which offers a serious and thoughtful challenge to prevailing assumptions about deceased-victim representation and calls for sharply limiting victims' rights in such cases.

In a new article available on SSRN (and soon to be published in the U.C. Irvine Law Review), Professor Peter Reilly and I defend the conventional wisdom. Our article explains why a victim's death does not extinguish the justification for victim participation when that participation is exercised through a representative. Drawing on history, doctrine, and experience in actual criminal litigation, our article shows that representation of deceased victims is deeply rooted in Anglo-American law and consistent with related doctrines such as survival actions. It further demonstrates that the core justifications for victims' rights—expressive, participatory, and institutional—do not disappear when asserted through a representative. Nor does representative participation reduce sentencing to judgments of "social worth."

Finally, through a detailed examination of United States v. Boeing—the deadliest corporate crime in U.S. history, arising from two Boeing 737 MAX crashes (as I have blogged about previously here, here, and here)—our article illustrates how deceased-victim representation operates in practice as an important check on prosecutorial discretion and as a safeguard for transparency, accountability, and public confidence in the criminal justice system.

To give you a flavor our argument, here's our introduction:

A generally recognized legal principle in every state and the federal criminal justice system is that, when a victim is killed by an alleged criminal, a family member or other appropriate representative can step into the shoes of the victim and participate in criminal justice proceedings. The theory is that, because the victim is deceased, someone should be allowed to represent the victim and exercise rights on the victim's behalf. In a recent article, Professor Lee Kovarsky challenges this widely accepted approach. In "The Victims' Rights Mismatch," Kovarsky finds representation for deceased victims "puzzling." He contends that, in such "third-party" scenarios, the justifications for victim participation and influence collapse.

We disagree. While Professor Kovarsky's important and thoughtful article is the first to analyze these issues at any length, ultimately it fails to make a convincing case against the conventional wisdom. When a victim has been killed as the result of a crime, it  remains appropriate and useful for a representative of the victim to assert the victim's rights. A recent criminal case—United States v. Boeing— illustrates the importance of victims' representatives' participation. Strong institutional and instrumental justifications exist for allowing representatives to assert victims' rights.

This Article makes the case for deceased-victim representation in criminal proceedings in five steps. Part I describes the legal framework and factual circumstances surrounding rights of victims of deadly crimes. The Article first explains how, in all states and the federal criminal justice system, representatives for victims of lethal crimes step into the victims' shoes to assert rights. Although these representatives (often family members) may have been harmed in and of themselves by the crime, this Article focuses on—and defends—victims' representatives asserting rights on behalf of deceased victims. Such representation is the historically accepted approach in this country. Part I concludes with a factual description of the kinds of crimes involving deceased victims. Although Professor Kovarsky asserts that such crimes are "almost always homicide cases with a harsh penalty," many criminal cases in fact involve a defendant who caused a death without the case being classified as a homicide.

Part II illustrates the importance of representation for deceased victims. In United States v. Boeing, the Boeing Company killed 346 people as a direct and proximate result of its conspiracy to defraud the Federal Aviation Administration (FAA) about the safety of the  Boeing 737 MAX aircraft. In this case, the "deadliest corporate crime in U.S. history," the families of the 346 victims served an important checking function on the prosecutors—a valuable role that Professor Kovarsky fails to recognize. And this checking function also exists in the law of other countries.

Part III turns to broader institutional reasons why representatives of deceased victims should be able to participate in criminal proceedings. This approach tracks other bodies of law, where after death the interests of a deceased person transfer to a representative. Indeed, it would be odd to extend participatory rights to persons injured by crimes but not to those actually killed. And representation of deceased-persons can help provide important information to judges handling criminal cases—information that turns on the unique value of the individual who was killed, rather than the social worth of that individual.

Part IV discusses instrumental reasons for allowing representatives of deceased victims to participate in criminal cases. First, having the victims' voices heard enhances the legitimacy of criminal proceedings. Second, allowing victims' representatives (such as families) to participate in criminal proceedings may have therapeutic benefits, regardless of any impact on the outcome. Third, victims' representatives can help judges reach appropriate outcomes in criminal cases, such as awarding appropriate restitution. Fourth, by delivering victim impact statements, victims' representatives can drive home to criminal defendants their crimes' full impact, which may help in rehabilitating defendants. Finally, at sentencing, deceased-victims' representatives can help serve a public educative function.

Part V responds to Professor Kovarsky's policy proposal of a system of "tiered" rights. Under the plan, deceased-victims' representatives would receive some, but not all, of the panoply of crime victims' rights. Notably, Kovarsky would extend a right to restitution, a right that necessarily involves representatives participating in criminal proceedings. Given that representatives would necessarily be participating extensively  in restitution proceedings, there is little justification for excluding them from other aspects of the case.

The Article briefly concludes by observing that eliminating representation for deceased victims would be swimming upstream against an overwhelming tide of public opinion in this country. On the issue of whether deceased victims should have a voice in the  process, this widely shared conception of justice is well-founded.

This issue of deceased-victim representation is an important one, and I hope our article leads to more discussion of the issue. You can download our whole article here.

The post Should a Murder Victim Have Rights in the Criminal Justice Process? appeared first on Reason.com.

Jane Doe has sued Amazon.com Services LLC for employment discrimination and seeks to proceed under a pseudonym in all public filings….

In short, Doe is concerned that naming herself publicly in this suit will somehow impair her ability to acquire documents necessary for her pending permanent residency application…. According to her motion, she is present in the United States on an employer-sponsored work authorization, and her lawful status "is dependent on maintaining continuous, non-disrupted employment." She "is engaged in an active employment-based permanent residency process," and her "permanent residency application is currently pending before the United States Department of Labor." This process "consists of multiple sequential stages that must be completed in a defined order and within specific timing constraints." Once the Department of Labor completes its review, Doe "must initiate the next phase within approximately three months" and must complete the phase in "December of this year."

Among the materials Doe must submit and verify is "detailed experience documentation, including letters from prior employers describing specialized skills."  … She acquired "a substantial portion of the specialized skills that [she] must document" while she worked for the defendant. She "must therefore rely on documentation, verification, or references associated with Defendant, or individuals associated with Defendant, to satisfy immigration requirements." …

Doe contends that "[p]ublic identification of [her] in connection with this [employment discrimination] litigation creates a material risk of impairing [her] ability to obtain necessary cooperation, references, or documentation from the limited available sources during this critical period" of her immigration process. "Delays in obtaining required documentation within the relevant window may affect the sequencing and timing of subsequent stages." …

She argues that she "faces concrete, time-sensitive[, particularized] harm that extends beyond generalized reputational concerns" and "creates a specific vulnerability not shared by most litigants." "[D]elays in obtaining required documentation could disrupt the sequencing of her permanent residency application and jeopardize her lawful status."

Doe describes her "request [as] narrowly tailored" "to prevent public dissemination that would occur through routine internet searches of court filings." The defendant already knows her identity, and granting her motion would not prejudice the defendant's ability to defend itself.

She also contends that "the public interest in open proceedings is not substantially impaired by permitting pseudonymous litigation in this case" because her "claims involve private employment matters rather than governmental action or matters of significant public concern" and "the factual and legal issues in this case can be fully understood and evaluated without public knowledge of [her] specific identity." …

Rule 10(a) of the Federal Rules of Civil Procedure requires that "[t]he title of the complaint … name all parties …." As the Fourth Circuit recently explained,

There is a presumption that parties must sue and be sued in their own names.

Pseudonymous litigation undermines the public's right of access to judicial proceedings because [t]he public has an interest in knowing the names of the litigants, and disclosing the parties' identities furthers openness of judicial proceedings. For that reason, few cases warrant anonymity, and few litigants request it.

Matters of a sensitive and highly personal nature involve sexual assault victims, minors, birth control, welfare cases involving minors born to unmarried parents, homosexuality, "and other particularly vulnerable parties or witnesses."

Doe's suit is not of similar ilk. She is suing the defendant for national origin discrimination and alleges that her new management team wrongfully criticized her work, put her on a Focus Plan with no objective performance standards, and did so immediately after she complained about management. Her complaint has no sensitive or highly personal allegations that warrant protection.

To the extent that Doe is claiming some sort of immigration-related privacy interest, Doe v. Merten (E.D. Va. 2004), is instructive. In Merten, the plaintiffs challenged the alleged policies of Virginia colleges "to deny admission to illegal alien applicants" even though "they fall within the acceptable academic ranges for admissions." The plaintiffs sought approval to proceed pseudonymously, claiming "that if they are required to reveal their identities, the federal government will seek to deport them or their families and they will thus likely decide not to proceed with this suit, effectively rendering them unable to vindicate their rights in this matter."

The court found that the plaintiffs had not demonstrated the need to preserve privacy in a sensitive and highly personal matter. "This is so because unlawful or problematic immigration status is simply not the type of 'personal information of the utmost intimacy' that warrants abandoning the presumption of openness in judicial proceedings….

Doe also fails to show that publicly identifying her as the plaintiff in this action will pose a risk of retaliatory physical or mental harm to her or "more critically" a non-party.

Her concern that "[p]ublic identification in connection with employment discrimination litigation against her former employer creates a material risk of impairing [her] ability to obtain critical documentation from limited available sources" is speculative. This will not suffice. Specifically, there is no information suggesting that the defendant would not timely respond to her request for employment verification.

Furthermore, the defendant knows that Doe filed a charge with the Equal Employment Opportunity Commission ("EEOC"). And, in support of her motion, Doe argues that she "does not seek to conceal her identity from Defendant." There is thus no evidence that identifying Doe here would provide additional retaliatory incentive.

Likewise, there is nothing to suggest her current or future employer would take adverse action against her for suing her former employer. Other than the defendant, who already knows of Doe's EEOC charge and will know of her suit, Doe provides no information from which the court can determine who would retaliate against her.

In addition, the defendant's potential unwillingness to provide documentation (or to the extent her motion refers to retaliation by her current or future employer) is not the type of retaliation courts have recognized supports anonymity…. "… [P]seudonymity has not been permitted when only the plaintiff's economic or professional concerns are involved" …. [C]oncern about current and future employment is insufficient to support anonymity ….

Regarding immigration-related retaliation, Merten is again instructive. As described above, the plaintiffs challenged the alleged policies of colleges "to deny admission to illegal alien applicants" even though "they fall within the acceptable academic ranges for admissions." They sought approval to proceed pseudonymously, claiming "that if they are required to reveal their identities, the federal government will seek to deport them or their families and they will thus likely decide not to proceed with this suit, effectively rendering them unable to vindicate their rights in this matter."

The court found that this was an insufficient threat of retaliation …. The plaintiffs relied on a memorandum from the Office of the Attorney General of Virginia that urged colleges "to report undocumented students to federal authorities." But the court found that "there is no sound reason to believe that disclosure of plaintiffs' identities in this suit increases their chances of being deported." "In the first place, the federal government is already aware of each plaintiff's immigration status." …

Doe's stated privacy interests—avoiding a speculative risk of retaliation and/or adverse actions by future employers—do not outweigh the public's right of access to judicial proceedings. She has accused her employer of discrimination based on her national origin. Under well-settled case law, the public's right of access to the related proceedings is crucial for the public's continued trust in the rule of law and the judiciary and, therefore, outweighs Doe's privacy interests. Because Rule 10(a) requires that the complaint name all parties, Doe must file an amended complaint using her real name to proceed….

The post Plaintiff's Immigration Concerns Don't Justify Pseudonymity appeared first on Reason.com.

The post Today in Supreme Court History: May 19, 1921 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

On Monday afternoon, I received an email from a PR firm that I thought was a fake. It began:

Please see here for the fun Schoolhouse Rock-style cartoon theme song for the U.S. Court of Appeals for the Federal Circuit that Chief Judge Kimberly A. Moore played at their Judiciary Conference on Fri. in Washington.  The crowd seemed to enjoy, and it does a good job of explaining the court.

For starters, I have spent several year ripping Moore for her stealth impeachment of Judge Pauline Newman. What brilliant PR flack put me on the distribution list? But then I clicked on the link and realized the video was in fact real. Moore actually retained a PR firm to publicize a cartoon theme song that she apparently commissioned.

I didn't think it was possible, but Moore has given Neal Katyal a run for most cringey YouTube video in recent memory. This video was clearly generated by AI. And I would wager AI also composed the lyrics and generated the vocal tracks. Everything about this video is fake. And it is awful.

Try to watch it without wincing. I've downloaded the video, in the likely event they take it down.

Given the standard applied to Judge Newman, this colossal error in judgment by Chief Judge Moore should warrant some sort of cognitive evaluation. How could she possibly think this was a good idea--so good to hire a PR firm to publicize it? Chief Justice Roberts, if you're reading, take away her cases, immediately. Hell, this video is so bad, Judge Moore may have failed to serve during "good behaviour."

After the jump, I'll break down this ridiculous feature, line-by-line.

The opening scene has a monkey riding a rocket ship. There is no explanation. A monkey is riding a rocket ship. Too bad they didn't include Judge Moore jumping over some sharks, like Fonzie on Happy Days. [Update: I am told this image is a nod to the fact that the courthouse once housed NASA.]

Well, it started with a law back in 82. Federal Court's Improvement Act came through. Congress said, "We need a brand new way to bring some consistency to cases every day." They merged some courts. Made a brand new seat, a national court with a special beat. Not by region, not by state, but by subject matter, keeping ruling straight.

Next, we see President Reagan signing the Federal Courts Improvement Act of 1982. I'm not quite sure who those other two people are. Tip O'Neil on the left? No clue who the person on the right is. AI tends to hallucinate people. Do you know what else President Reagan signed: Judge Pauline Newman's commission, which Kimberly Moore has tried to wipe out of existence.

Get ready for the chorus.

Oh, I'm the Federal Circuit. Hear me say. I handle special cases from across the USA. patents, claims, and veterans appeals. International trade and government deals.

Yes, there are three singers who dance and twirl about the Federal Circuit's jurisdiction. [Update: I am told these are supposed to be Judges Reyna, Cunningham, and Stoll.]

Next, we get to the conflict.

When inventors say, "Hey, that's mine." I review those patents and draw the line. If it's trademarks too I'm in the mix, making sure the law stays uniform and fixed.

A mad scientist is fighting over some machine with a bearded man, who looks like a younger (and redder) Alexander Graham Bell.

There is also a man is confused about the difference between Starbeans and Starbeens.

Then there is a music interlude. I kid you not. Ronald Reagan leads a conga line, followed by one of the chorus singers, a scientist holding a beaker, a park ranger, and Uncle Sam.

Again, an Article III judge had to sign off on this idea, and hired a PR firm to publicize it. Things get worse.

I really wish they would leave Uncle Sam out of this travesty, but he isn't free yet. Now Uncle Sam is used to illustrate the jurisdiction of the Court of Federal Claims.

From the court of federal claims, you'll see our appeals come up the chain to me.

And she drags the troops into this quagmire:

Veterans seeking benefits fair. I review each case with thoughtful care.

The greatest generation didn't storm the Omaha Beach for the federal government to publish this slop.

The park ranger and scientist return, joined by a man in uniform with a headset, and a letter carrier.

Federal workers bring their cases along. From board rulings, I decide right from wrong.

The Titanic had a better fate than this Transatlantic journey.

And if trade crosses oceans wide, I help decide what rules apply.

We're back to the twirling chorus singing the bridge.

Oh, I'm the federal circuit. Hear me say. I handle special cases from across the USA. Patents, claims, and veterans are appeals. International trade and government deals.

If you've made it this far, I apologize for what comes next.

Now, you might ask, who wears the robe? who gets to judge cases we know. The president picks. That's how it's done.

Chief Judge Moore created an AI version of herself shaking hands with George W. Bush. There is so much wrong with this picture. For starters, it never happened. President Bush took a famous photo op with his first batch of circuit nominees, including John Roberts, Jeff Sutton, and Miguel Estrada. But Bush did not make this a regular habit. And he certainly did not announce Moore's nomination in 2006 with any fanfare.

The bigger problem is this AI looks nothing like Chief Judge Moore. Let's just say she had an AI-glow up. Her long blonde hair is flawless, her suit is perfectly tailored around her waist, and her makeup is on point. This is how I remember Judge Moore when she taught at George Mason circa 2006. I usually would not opine on a person's appearance, but when an AI video is commissioned, there must have been some sort of approval process for the look.

It gets worse. We go to the Senate.

Then the Senate confirms each one.

In case you can't tell, the nominee is actually singing the lyrics of the song, with the Senators sitting behind him.

They serve for life to stay independent and fair. Applying the law with the utmost care.

They serve for life, of course, unless Judge Moore decides to take away all their cases.

Get ready for the chorus. But our twirling dancers are gone. Instead, Judge Moore twirls. I wish I were joking.

It starts with a group shot. Notice something is missing here?

There are 12 active judges on the court, including Newman. So this group of 16 oddly excludes one active judge (Newman) but includes 5 senior judges. But there are currently 19 total judges (active, including Newman + senior). So it is excluding Newman and two other judges. Judge Jay Plager appears to be one of those senior judges being excluded (who apparently also gets no cases assigned to him by Moore but isn't fighting it). I can't quite figure out who the third 'missing' judge is but I would be curious to know. All of the female judges other than Newman are accounted for. Phew. Chief Judge Moore apparently feels free to include or exclude judges from the bench as she sees fit! She wants to remove Pauline Newman from existence. Again, this was a conscience choice. Unless Harvey AI knew that Judge Moore would not be happy to see Judge Newman, and excluded the nonagenarian.

The NCLA, which represents Judge Newman, had a brilliant response:

It gets worse. Judge Moore jumps off the bench and starts dancing with another judge.

I've…had…the time of my life.

This is far more disturbing than any memes Alex Kozinski ever shared.

The judge at the end makes the Taylor Swift heart hands thing (I think it is supposed to be Kara Farnandez Stoll.)

Seriously, it gets worse.

A disco ball comes down, the Judges whip out glow sticks, and they start a Federal Circuit rave.

Oh, I'm the Federal Circuit. Hear me say. I handle special cases from across the USA. Patents, claims, and veterans appeals. International trade and government deals.

Sadly, they couldn't leave Uncle Sam out of this one last time.

Yeah, that's the law. Stay uniform, America.

I have no more words. Please, no more cringey YouTube videos. I can't handle anymore. You're welcome. The things I do for my country.

The post Chief Judge Moore Commissions Bizarre AI Cartoon About The Federal Circuit Without Judge Newman appeared first on Reason.com.

The state trial court handed down its ruling in People v. Mangione, on whether to suppress part of all of the contents of the backpack Luigi Mangione was carrying at the time of his arrest in the state prosecution against him.  In the federal case against Mangione, the federal court back in January denied the motion to suppress the contents of the backpack. But today the state court suppresses some of the contents for the state court prosecution (in particular, the magazine, cellphone, passport, wallet and computer chip) and allows the government to use other contents (in particular, the red notebook).

I found the new opinion a little odd. There's a part I was expecting that wasn't addressed. I thought I would explain what it is.  [UPDATE: See below for what appears to be the explanation, rooted in New York state constitutional law.]

First, the opinion.  The court begins by concluding that the relevant law is the federal Fourth Amendment and the New York Constitution, even though the actions were those of Pennsylvania police in Pennsylvania. So the heightened restrictions of New York law apply to the Pennsylvania officers, even though they presumably didn't know (and maybe couldn't know) they would be governed by New York state search and seizure law.

Second, the court concludes that New York search and seizure law settles what I have called the "moving property problem": If someone has a backpack, and it is moved away from a person, New York law says it can't be searched incident to arrest because the exigency is gone and the backpack is no longer in the area of the suspect's control.

Third, the court turns to the search at the police station, where the items in the backpack were searched. This search was fine, the court says: although the search at the McDonalds can't be allowed as an incident-to-arrest search, the search at the police station was valid as an inventory search. In particular, this allows admission of the notebook found in the backpack that wasn't searched at the McDonalds.

Fourth, the court says that the warrant the government obtained later that today to search the backpack does not make the contents admissible under the independent source doctrine, as this wasn't an independent source.

Beyond the part about New York law applying—a matter of the scope of New York law that I don't have a view of myself—I'm puzzled as to why there's no inevitable discovery argument based on the inventory search.  That's the main argument that the federal court rested on in denying the motion to suppress, based on the same facts: the police were going to inventory everything anyway and find everything anyway, so everything they found in the backpack was going to be discovered anyway in the inventory, regardless of whether they initially searched it lawfully or not.

As far as I can tell, the state court does not address this argument, although I would think it's the key argument to address. Did the state not raise it? Or is there something about New York state law that makes that an improper argument?  I don't know, as I haven't followed the case closely enough to say.

UPDATE: A New York lawyer writes in that it's an issue of New York law, where the inevitable discovery exception is a lot narrower than it is under federal law.  See People v. Stith, 69 NY2d 313, 318–19 (1987):

When the inevitable discovery rule is applied to secondary evidence, as in Payton, Fitzpatrick and Nix, the effect is not to excuse the unlawful police actions by admitting what was obtained as a direct result of the initial misconduct. It is not the tainted evidence that is admitted, but only what was found as a result of information or leads gleaned from that evidence. The rationale is that when the secondary evidence would have been found independently in any event, "the prosecution [should not be] put in a worse position simply because of some earlier police error or misconduct" (Nix v Williams, supra, at 443; emphasis in original). In contrast, when the inevitable discovery rule is applied to primary evidence, as was done here, the result is quite different. It is the tainted evidence itself and not the product of that evidence which is saved from exclusion. Permitting its admission in evidence effects what amounts to an after-the-fact purging of the initial wrongful conduct, and it can never be claimed that a lapse of time or the occurrence of intervening events has attenuated the connection between the evidence ultimately acquired and the initial misconduct. The illegal conduct and the seizure of the evidence are one and the same.

In the case before us, the suppression court and the Appellate Division, in holding that the illegally seized weapon should not be suppressed, hypothesized that the gun would inevitably have been discovered through a source that was independent of the initial taint. Viewing the situation at the moment of the illegal seizure, the courts below simply assumed the chain of events which would customarily have been set in motion following defendant Newton's failure to produce a registration certificate: that a radio check would have revealed that the truck was stolen, defendants would have been arrested, the truck would have been impounded and the gun would have been found in an inventory search.

We hold that applying the inevitable discovery rule in these circumstances, and effecting what would amount to a post hoc rationalization of the initial wrong (see, Nix v Williams, supra, at 448), would be an unacceptable dilution of the exclusionary rule. It would defeat a primary purpose of that rule, deterrence of police misconduct (see, People v Bigelow, 66 N.Y.2d 417, 427, supra). 320*320As noted by the Oregon Court of Appeals in State v Crossen (21 Ore App 835, 838, 536 P2d 1263, 1264), in declining to apply the inevitable discovery rule to primary as distinguished from secondary evidence, failing to exclude wrongfully obtained primary evidence "would encourage unlawful searches in the hope that probable cause would be developed after the fact" (see, United States v Massey, 437 F Supp 843, 852-854; Stokes v State, 289 Md 155, 423 A2d 552; State v Williams, 285 NW2d 248, 256-257 [Iowa]; contra, Clough v State, 92 Nev 603, 555 P2d 840; for a discussion of the distinction between primary and secondary evidence, see, 3 LaFave, Search and Seizure § 11.4, at 620-628).

So here the decision to apply the limits of New York state constitutional law to the Pennsylvania search ends up being critical, not only because it answers the moving property issue but also because it limits inevitable discovery.

I have thought about writing an article on the extraterritorial application of state constitutional search and seizure rules, as it presents a fascinating issue.  But it comes up so rarely that I couldn't find much on it.  This is a particularly interesting application of the issue.

The post The Missing Part of the State Court <i>Mangione</i> Suppression Ruling? appeared first on Reason.com.

Today the Supreme Court GVR'd two cases in light of Callais. State Board of Election Commissioners v. Mississippi NAACP and Turtle Mountain Band of Chippewa Indians v. North Dakota presented the same issue: whether there is a private cause of action under Section 2. And, in both cases, Justice Jackson dissented. She wrote:

This case presents only the question of Section 2's private enforceability, which our decision in Louisiana v. Callais, 608 U. S. ___ (2026), did not address. Thus I see no basis for vacating the lower court's judgment.

Last week, the Court GVR'd a case from Alabama, Allen v. Caster, in light of Callais. Justice Sotomayor dissented, joined by Justices Kagan and Jackson. They contended that in addition to a Section 2 claim, the District Court also found a vote dilution claim, so there was no reason to GVR.

Today, the Court vacates a District Court order enjoining Alabama's 2023 Redistricting Plan and remands for reconsideration in light of the Court's new interpretation of §2 of the Voting Rights Act in Louisiana v. Callais, 608 U. S. ___ (2026). There is no reason to do so. In addition to holdingthat Alabama's 2023 Redistricting Plan violates §2, the District Court held, in one of the three cases before this Court, that Alabama violated the Fourteenth Amendment by intentionally diluting the votes of Black voters in Alabama. That constitutional finding of intentional discrimination is independent of, and unaffected by, any of the legal issues discussed in Callais. Vacatur is thus inappropriate and will cause only confusion as Alabamians begin to vote in the elections scheduled for next week. I respectfully dissent.

What is going on here?

I think much of the criticism of the "shadow" docket is overblown. When the Court grants or denies a stay, you can usually figure out why they did so. But the GVRs are often more cryptic. Often the Court is telling the parties to look at one issue, but in reality know another issue will resolve it.

For example, the cases from Mississippi and North Dakota are Section 2 cases. The question of whether there is an enforceable private cause of action only matters if in fact there is a Section 2 violation. You usually think of the existence of a cause of action as a non-merits threshold issue, but in reality, if there is no discrimination, the Supreme Court won't have to decide the threshold issue.

In light of Callais, I think it very, very unlikely that the Plaintiffs can prove an intentional racial gerrymander. And they may not want to. Remember, the Court vacated the entire judgment of the lower court. The parties have to start from square one. They would have to hold a new trial based on new evidence. And, as all know, Mississippi will likely redistrict in the near future, so the case would be mooted out. The NAACP may simply decide this particular case is not worth fighting. Why litigate over old maps that will not affect anyone? Thus the case goes away I am less familiar with the facts in North Dakota, but I suspect similar dynamic are at play. The Justices may never have to actually decide the private cause of action case under Section 2 because Section 2 will have very little vitality post-Callais. (Derek Muller has a new paper on private rights of action for election litigation.)

The Alabama GVR is a bit trickier to figure out. It isn't clear to me that the vote dilution case is controlled by Callais. But perhaps the Justices are hoping the District Court extends the Callais rule to the Fourteenth Amendment context. Then, the Court can summarily affirm, or something to that extent.

The Court's general practice, it seems, is to issue a landmark ruling then hide for a while. They took this path with affirmative action, abortion, guns, and now will do it with voting rights.

The post Why is the Court GVRing Cases In Light Of <i>Callais</i> That Did Not Turn On The Issues In <i>Callais</i>? appeared first on Reason.com.

These two appeals involve Plaintiffs' Second Amendment challenge to New York's Concealed Carry Improvement Act ("CCIA") provisions prohibiting firearm possession in two types of locations: (1) private property "where [a] person knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of [guns] on their property is permitted or by otherwise giving express consent; and (2) "sensitive locations. Plaintiffs challenge the Private Property Provision, as applied to private property open to the public. Plaintiffs asserted only a facial challenge to the Public Parks Provision in the district court, but now also seek to raise an as-applied challenge based upon its application to rural parks.

We conclude that the Private Property Provision, as applied to private property open to the public, is unconstitutional because the State did not carry its burden of demonstrating that the restriction falls within our Nation's historical tradition of gun regulations, as required under the framework set forth in New York State Rifle & Pistol Association, Inc. v. Bruen (2022). On the other hand, we conclude that the Public Parks Provision survives Plaintiffs' facial challenge because the State has carried its burden of showing that regulation is consistent with our Nation's historical tradition of banning gun possession in urban public parks. Finally, we decline to address any as-applied challenge to the Public Parks Provision, to the extent it applies to rural parks, because Plaintiffs failed to raise that challenge in the district court.

Judge Menashi dissented in part as to the Public Parks Provision.

The post The Second Amendment, Guns on Private Property, Guns in Parks, and "The Fifth Element" appeared first on Reason.com.

On January 26, 2026, the Government filed a complaint alleging that Defendant Joshua Doyle "did forcibly assault, resist, oppose, impede, or interfere with … Victim 1, a United State[s] Homeland Security Investigations Special Agent" performing official duties, and made physical contact with the victim, in violation of 18 U.S.C. § 111(a)(1)….

Mr. Doyle moves for a "gag order" based on two posts that he alleges former Attorney General Pam Bondi made "regarding Mr. Doyle" prior to his initial appearance. Mr. Doyle asks me to "prohibit[ ] the Government from making further statements about [him]" and to direct Bondi to remove the two posts.

On January 28, former Attorney General Pam Bondi allegedly made two posts on the social-media platform, X.

In the first post, made at 12:53 pm., she stated:

I am on the ground in Minneapolis today. Federal agents have arrested 16 Minnesota rioters for allegedly assaulting federal law enforcement—people who have been resisting and impeding our federal law enforcement agents. We expect more arrests to come. I've said it before and I'll say it again: NOTHING will stop President Trump and this Department of Justice from enforcing the law."

In the second post, made at 1:10 p.m., Mr. Doyle alleges that Bondi posted a "'booking' style photo" of him….

Mr. Doyle's briefing suggests three separate grounds for a gag order.

First, he suggests that a gag order should issue based on his compelling privacy interest in the booking photos. He relies on a civil, Freedom of Information Act ("FOIA") case, Detroit Free Press Inc. v. United States Department of Justice (6th Cir. 2016) (en banc). There, a newspaper asked the Government to disclose booking photos of defendants in an active criminal prosecution. When the Government denied its request, the newspaper sued, arguing that FOIA required disclosure. The Government argued that nondisclosure of the booking photos was permissible under FOIA's Exemption 7(C).

The court's extensive Exemption 7(C) analysis considered whether the defendants had a privacy interest in the photos and, if so, whether the privacy interest outweighed "the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." The court agreed with the Government that defendants generally have "a non-trivial privacy interest" in booking photos. It remanded to the district court to assess whether public interest in understanding government operations or activities under FOIA outweighed the defendants' privacy interests in that particular case.

Mr. Doyle plucks from Detroit Free Press's lengthy analysis the holding that defendants have a privacy interest in booking photos; he notes that this is consistent with policy and regulations recognizing that booking photos are sensitive information. But as Mr. Doyle seems to acknowledge, a privacy interest alone doesn't authorize me to issue a gag order. Indeed, even Detroit Free Press indicates that booking photos may be disclosed under some circumstances. Mr. Doyle certainly has some privacy interest in his booking photo. But the parties do not provide fulsome discussion of Mr. Doyle's privacy interest weighed against the Government's interests. I therefore reject any suggestion that I can restrain the Government from publicizing the booking photo based solely on Mr. Doyle's privacy interest in it.

Second, Mr. Doyle argues that a gag order should issue because Bondi's X posts violate his Sixth Amendment rights to a fair trial, undermining the presumption of innocence and "creat[ing] an unacceptable risk of prejudice" by tainting "'the minds of the jurors at trial.'" He claims that Bondi deleting her posts would "minimize[ ] the ongoing damage that the Government has already done."

Mr. Doyle relies on Beck v. Washington (1962), which concerned a high-profile criminal case that received significant, lengthy pre-trial publicity. During jury selection, venire "members were examined by the court and counsel at length." Those admitting bias or "preformed opinion" were excused. The defendant used all his peremptory challenges.

The Court's "study of the voir dire indicate[d] clearly that each juror's qualifications as to the impartiality far exceeded the minimum standards this Court established in its earlier cases." Thus, the Court could "[ ]not say the pretrial publicity was so intensive and extensive or the examination of the entire panel revealed such prejudice that the court could not believe the answers of the jurors and would be compelled to find bias or preformed opinion as a matter of law."

Beck concluded: "While this Court stands ready to correct violations of constitutional rights, it also holds that it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality." It held that the defendant there hadn't met this burden.

Beck thus teaches that even with significant pre-trial publicity, a robust jury-selection process can safeguard against essential unfairness. Here, the two X posts are far less intensive and extensive than the prolonged media campaign in Beck. Rigorous jury selection can safeguard against any potential prejudice caused. Therefore, I find that Mr. Doyle has not met his burden under Beck to demonstrate the "reality" that Bondi's publication of the two X posts will cause essential unfairness at trial in violation of his Sixth Amendment rights.

Third, Mr. Doyle suggests that a gag order should issue because former Attorney General Bondi was a legal representative in this case when she made the posts. Mr. Doyle acknowledges that prior restraints on speech are strongly disfavored as a serious infringement on the First Amendment rights of the public and the press. But he relies on Gentile v. State Bar of Nevada, (1991), to argue that these concerns are lessened when the speech being constrained is that of the case's lawyers.

In Gentile, the Court considered a challenge to a Nevada Supreme Court rule prohibiting an attorney from commenting about a case to the media if the attorney knew or should have known the comments would "have a substantial likelihood of materially prejudicing an adjudicative proceeding." The Court's earlier opinions "expressly contemplated that the speech of those participating before the courts could be limited," indicating that "a less demanding standard than [the clear-and-present danger standard] established for regulation of the press" applied to legal representatives. Gentile therefore held that the "substantial likelihood of material prejudice" standard was constitutionally sufficient to justify proscribing an attorney's extrajudicial comments under the state rule.

Here, neither party addresses the fact that Bondi is no longer a lawyer in this case [since she was dismissed as AG on April 2] or what impact her now-non-legal-representative status has on the applicable standard. But even under Gentile's relaxed standard for lawyers, I find that Mr. Doyle has not met his burden.

Bondi's two posts do not amount to a prolonged, overly divulgent, inflammatory mainstream media campaign against Mr. Doyle. And if Bondi's posts were reposted by others (a point Mr. Doyle doesn't address), ordering her to delete her original posts wouldn't resolve the problem of potential prejudice. Thus, Mr. Doyle has not shown that prejudice is substantially likely or that the requested remedy could alleviate any likely prejudice. As discussed, jury selection is the best guard against this risk.

The post Court Refuses to Order Pam Bondi to Delete Tweeted Booking Photos in Prosecution for Interference with ICE in Minneapolis appeared first on Reason.com.

From E.B. v. Kimi Crush Ltd., decided Thursday by Judge Michelle Peterson (W.D. Wash.):

On March 3, 2026, Plaintiff E.B. filed a complaint on behalf of herself and all others similarly situated, bringing Washington state law claims alleging that Defendants Kimi Crush Limited …, Ant Hive Creations, Inc. …, Prinsloo Global Group, Inc. …, JoyBox Studio Limited …, and Starfish Technology Limited … operated illegal online casino games. Plaintiff states that she is a criminal defense attorney who faces reputational and professional harm if her diagnosed gambling addiction becomes known….

Plaintiff requests to proceed under the pseudonym E.B. to "(i) maintain her privacy when disclosing personal and highly sensitive details, such as her diagnosed gambling addiction; and (ii) protect her from the significant risk of professional and reputational harm[.]" …

A party's use of a fictitious name or pseudonym runs counter to "the public's common law right of access to judicial proceedings and Rule 10(a)'s command that the title of every complaint 'include the names of all the parties[.]'" Nevertheless, the Ninth Circuit "permit[s] parties to proceed anonymously when special circumstances justify secrecy." Proceeding under a pseudonym is permissible when "necessary … to protect a person from harassment, injury, ridicule or personal embarrassment." …

The Court finds Plaintiff has made a sufficient showing of the "need for anonymity to at least warrant provisionally granting her leave to continue pseudonymously until Defendants have appeared." … Plaintiff contends she risks substantial social and professional stigma should her gambling addiction become public knowledge. She raises reasonable concerns that this would affect her ability to attract and retain clients.

The Court also finds, at this stage, that the public has a limited interest in learning Plaintiff's identity. While the public has an interest in the matters being litigated, it is unclear how disguising Plaintiff's identity would obstruct public scrutiny of the important issues in this case.

Finally, without any defendant having appeared in this case, it is too early to assess the prejudice to Defendants. Moreover, Plaintiff states she will share her identity with them during discovery. The Court will therefore defer considering prejudice to Defendants and the availability of mitigating procedures until it has the benefit of Defendants' arguments. Accordingly, the Court PROVISIONALLY GRANTS Plaintiff's Motion for Leave to Proceed Pseudonymously….

I can understand why plaintiff wouldn't want to "[p]ublicly link[] her name to a gambling addiction diagnosis and six-figure losses," because it "would directly threaten her ability to attract clients and sustain her practice." I just don't think that her desire to keep this secret should outweigh the public's ability to supervise what the court does in this case—and indeed prospective clients' ability to decide whether to trust a lawyer who has this problem.

Indeed, the E.B. decision seems inconsistent with the Ninth Circuit nonprecedential decision in Roe v. Skillz, Inc.(9th Cir. 2021), which came out the opposite way on very similar facts, rejecting pseudonymity for someone who said she was a gambling addict and argued "that disclosure could negatively affect her professional standing, as her employer is unaware of her struggles and her work requires interaction with the public who may 'weaponize' it against her." Generally speaking, "That a plaintiff may suffer embarrassment or economic harm is not enough" to allow her to proceed pseudonymously (Doe v. Megless(3d Cir. 2011)); pseudonymity "has not been permitted when only the plaintiff's economic or professional concerns are involved" (M.M. v. Zavaras (10th Cir. 1998), quoting National Commodity & Barter Ass'n v. Gibbs (10th Cir.1989)).

Moreover, courts have mostly rejected pseudonymity as to claims of drug and alcohol addiction, though some courts have disagreed (see nn. 302-05 and accompanying text in The Law of Pseudonymous Litigation). And some courts have concluded that pseudonymity is particular inapt for would-be class representatives—which E.B. seeks to be here—because it "may … preclude potential class members from properly evaluating the qualifications of the class representative," though here too others have disagreed (see nn. 155-156 and accompanying text). E.B. further adds to this disagreement.

The post Plaintiff Can Sue Pseudonymously Because She's a Criminal Defense Lawyer with a Gambling Addiction appeared first on Reason.com.

No questions were asked of [defendant's] Lead Counsel. No one asked him to be placed under oath to give additional testimony other than his previous declarations. He was not asked to justify the hours. He was not asked any questions at all that may have helped the trial court judge determine what was reasonable or unreasonable. Such an examination would seem to this trial judge as to have been very helpful to it in its determination of what is reasonable and what is not.

For more on the substance of the case, here's an excerpt from the opinion in Kay v. Irish Rover Inc., decided last year by Indiana Court of Appeals Judge Paul Mathias, joined by Judges Elaine Brown and Dana Kenworthy:

Dr. Tamara Kay appeals the St. Joseph Superior Court's order granting The Irish Rover, Inc.'s, motion to dismiss her defamation claim…. On the dates the alleged defamation occurred, Dr. Kay was a tenured professor in the Keough School of Global Affairs and the Sociology Department at the University of Notre Dame. Her "academic research and teaching is focused on trade, labor, social movements, globalization, organizations, and global health which includes reproductive health and rights." Many of Dr. Kay's extensive writings in journals, newspapers, and on Twitter focus on advocating for abortion legalization.

The Irish Rover is an independent, student newspaper at the University. {[O]ne of its missions is to articulate and defend the Catholic character of the University.} …

After the United States Supreme Court decided Dobbs v. Jackson Woman's Health Organization on June 24, 2022, Dr. Kay "became more outspoken on the issue of abortion access," including more frequent posts on Twitter. On September 15, 2022, the Indiana General Assembly's legislation limiting abortion in Indiana took effect, although it was enjoined shortly thereafter….

Kay sued over two articles published by the Irish Rover that concerned Dr. Kay's speech. To oversimplify matters somewhat, under Indiana libel law, a libel claim based on speech on matters of public concern can only prevail based on a showing of knowing or reckless falsehood—mere negligence isn't enough, even if plaintiff is a private figure. (In this respect, Indiana libel law is more speaker-protective than the constitutional minimum set forth by First Amendment law.) And here, the court concluded that the Rover's statements were either true or at least reasonable interpretations of the facts that the Rover had, and certainly weren't knowingly or recklessly false:

Here, we agree with the trial court that the undisputed facts established that The Irish Rover's two articles were written in good faith and that the alleged defamatory statements were not false. The October 12, 2022, article is titled "Keough School Professor Offers Abortion Access to Students." The article discusses a panel Dr. Kay participated in and her opinions on the ineffectiveness and immorality of abortion bans. The newspaper quoted Dr. Kay as stating that her "view runs afoul of Church teaching, but in other areas, [her] positions are perfectly aligned [with the Church.]"

The article included a photograph of the sign on Dr. Kay's office door, which stated, "This is a SAFE SPACE to get help and information on ALL Healthcare issues and access – confidentially with care and compassion[.]" The sign also included the letter "J" in a circle, which the article recognized to "denote Notre Dame professors who are willing to help students access abortion." In support of that statement, the article cited to a social media post where Dr. Kay stated, "'[w]e are here (as private citizens, not representatives of ND) to help you access healthcare when you need it, and we are prepared in every way. Look for the 'J'[,] Spread the word to students!'"

The article also discussed the legality and availability of Plan B and Plan C abortion pills. In particular, the article stated that, "in reference to these pills," Dr. Kay had tweeted, "'Will help as a private citizen if you have issues w access or cost. DM me [sic].'" The article described Dr. Kay's retweets of posts from groups concerning reimbursement of costs of obtaining an abortion out of state or getting Plan C pills by mail. The article stated that the sign on her office door was later removed and her tweets referencing abortions for students were later deleted. The article reported that, during the panel event, Dr. Kay was asked if her statements promoting abortion were aligned with "Church teaching and Notre Dame policy," and Dr. Kay responded that she was not actively promoting abortion, but then later clarified, "[o]h, I am doing that as a private citizen …."

{In her complaint, Dr. Kay did not specifically allege that any of the statements in the October article were untrue or defamatory…. As most of the article contains quotes from Dr. Kay's social media or the sign on her office door, she could not reasonably question the veracity of the statements in the article. It appears that her claim of defamation regarding the October article is based solely on the title of the article.}

The Irish Rover published its second article on March 22, 2023, which was titled, "Tamara Kay Explains Herself to Notre Dame Democrats." The College Democrats had invited Dr. Kay to speak about her career and research and how her work has impacted "'her activism around abortion rights post-Dobbs[.]'" In her complaint, Dr. Kay challenged the following specific statements from the article as false and defamatory: 1) that Dr. Kay was "posting offers to procure abortion pills on her office door"; 2) that Dr. Kay said to the audience, "if you have that academic freedom, you should use it"; and 3) that Dr. Kay acknowledged that the students in the crowd could not be as forward in their pro-abortion activities as she is and stated, "I can't impose that on you … but I'm doing me, and you should do you."

{During the panel discussion [before the College Democrats], an audience member asked Dr. Kay how students should have conversations about abortion "during this time" and referenced the University's statement that the students have academic freedom. Dr. Kay responded, "you have to really be fully committed to activism to be able to stick your neck out like I am right? [B]ecause I can't impose that or say you should do it. You know, you have to do what you have to do. And I think what I've come to is I'm doing me, and other folks can do them." Dr. Kay also stated, "if you don't have academic freedom, you don't have a university. You can't call it a university."}

The article also included Dr. Kay's faculty photo, which she did not give the paper permission to use. [The court doesn't analyze this photograph point separately, but generally a photographed person doesn't need to give permission for a newspaper to use the photograph; and any copyright claim would have had to be asserted in federal court by the copyright owner, which was likely the University rather than the professor. -EV]

The Irish Rover's statements in their articles concerning Dr. Kay were quotes from Dr. Kay's social media, statements paraphrasing Dr. Kay's statements at the panel event, or statements discussing Dr. Kay's prior publications. Included in its designated evidence, The Irish Rover submitted copies of the tweets referenced or quoted in the October article and a transcript from the March panel event. The newspaper also submitted articles published in 2022 and 2023 by (or co-authored by) Dr. Kay addressing access to abortion, and the burdens and negative effects of abortion bans.

Dr. Kay never explicitly stated that she would assist a student by procuring abortion pills for that student. But The Irish Rover made a reasonable inference from Dr. Kay's own statements that she would do so. It was reasonable for The Irish Rover reporters to conclude that assistance or help would include providing information to a student on how abortion medication could be obtained…. [T]he articles were not fabricated and were not based on unverified anonymous sources or sources wholly lacking in credibility. Therefore, The Irish Rover presented a prima facie case that the articles had a "reasonable basis in fact."

Dr. Kay was therefore required to designate evidence to establish that the statements lacked a "reasonable basis in fact." In response to The Irish Rover's motion to dismiss, Dr. Kay designated her own affidavit and described her only interaction with a student staff member of The Irish Rover. In particular, she stated that Joseph DeReuil had spoken with her after the September 2022 panel event but did not ask to interview her or disclose the fact that he was recording their conversation. Dr. Kay stated that DeReuil did not ask her about the sign on her office door, what she meant by "healthcare" or what the "J" symbolized. Dr. Kay averred that the "J" stood for "'Jane Doe,' which is how victims of sexual assault are typically referred to" and that she had used the "J" to express that she is "an ally for victims of sexual assault."

Dr. Kay's affidavit also quoted an email she had received from DeReuil asking for a meeting to continue their discussion about Dr. Kay's abortion position and an email received within hours of DeReuil's email from a Holy Cross student asking for Dr. Kay's assistance in procuring Plan C. Dr. Kay did not respond to either email because she assumed that "the close proximity in time" of receipt "was not a coincidence …."

Dr. Kay averred that the sign on her office door "pertained to student sexual assaults" and "did not pertain to abortion." And she claimed that a statement in the October article that she used the "panel as a platform to explain why she thought abortion bans are ineffective and immoral, complementing her work to bring abortion to Notre Dame students" was false and defamatory. Likewise, Dr. Kay claimed that The Irish Rover's statements that she offered help to obtain abortion medications and abortion services were false and defamatory. {However, as we noted above, Dr. Kay did not specifically claim that any of these statements were false and defamatory in her complaint.}

None of Dr. Kay's public statements discussed in The Irish Rover's articles referenced her specific concerns for victims of sexual assault. She expressed those concerns in private emails between herself and other University faculty members. However, her public statements, her social media posts, and her writings concerned access to abortion services or reproductive healthcare.

We therefore conclude that Dr. Kay's designated evidence does not create a genuine issue of material fact concerning whether The Irish Rover had a reasonable basis in fact to publish the statements in the two articles. The Irish Rover's reporters reasonably concluded that Dr. Kay was generally addressing access to abortion and assistance to students who needed information about procuring an abortion.

Even if Dr. Kay would be able to prove that she intended only to assist sexual assault victims who wanted an abortion, Dr. Kay would also have to prove that The Irish Rover acted with actual malice at trial….

The Irish Rover designated evidence via deposition testimony from the authors of the articles that they believed that the inferences that they made from Dr. Kay's own statements, publications, and social media posts, which they published in the articles, were true. While it is true that DeReuil could have specifically asked Dr. Kay what the "J" on her office door stood for and what she specifically meant by her statements about helping individuals who needed access to healthcare, DeReuil's failure to do so is not evidence of actual malice, particularly in light of the undisputed fact that he asked to meet with Dr. Kay before the article was published but she did not respond to the request. {The Irish Rover designated evidence that the "J" could have been a reference to the Jane Collective, a pro-choice group that offered to assist women to obtain abortions by transporting them across state lines.} …

The designated evidence thus established that The Irish Rover reporters believed that the statements in their articles were true, and, therefore, Dr. Kay would not be able to prove her claim of defamation…. For the same reasons, The Irish Rover also presented a prima facie case that its publications were made in good faith….

Jim Bopp and Taylor C. Shetina (The Bopp Law Firm, PC) represent the Irish Rover.

The post Notre Dame Pro-Abortion-Rights Professor Ordered to Pay $200K in Fees in Failed Libel Lawsuit Against Student Newspaper appeared first on Reason.com.

From Wednesday's decision by Judge Amul Thapar, joined by Judges Julia Gibbons and Joan Larsen, in U.S. v. Ramic:

Over a decade ago, a new wave of terrorism spread across the Middle East. A group calling itself the Islamic State of Iraq and Syria (ISIS) sought to establish a new regime strictly governed by Islamic law. To do so, ISIS employed brutal tactics—planting bombs, publicly decapitating its enemies, burning people alive, and enslaving women and children. It also launched vicious attacks to conquer territory in Iraq and Syria. And it recruited fighters from around the world to perform these acts of terrorism.

Mirsad Ramic was one such fighter. He traveled from the United States to Syria, where he participated in an attack that claimed over 100,000 lives….

Mirsad Ramic grew up in Bosnia during a civil war. That conflict involved genocide and war crimes targeted at minority groups, including Bosnian Muslims like Ramic and his family. In fact, Ramic's father was killed during this conflict. So once the war concluded, the United States offered Ramic and his family a fresh start by granting them refugee status. Ramic's family ultimately settled in Bowling Green, Kentucky, a city with a vibrant population of other Bosnian refugees. Eventually, Ramic became a naturalized U.S. citizen, but he was unhappy with his American life.

Rather than embracing the privilege of American citizenship, Ramic embraced the extremist views of terrorist groups trying to destroy the United States and its allies. During his naturalization ceremony, Ramic refused to recite the oath of allegiance to the United States. Instead, he proclaimed an Islamic oath and cursed all nonbelievers….

Abdullah el-Faisal … was a Jamaican Muslim cleric who had previously been convicted in the United Kingdom of advocating for the murder of Jews, Hindus, Christians, and Americans. When ISIS started gaining traction, Faisal began recruiting for the group and urged his supporters to launch violent jihadist attacks. He instructed his followers on how to covertly travel to Syria or Iraq to join ISIS. Ramic consumed this radical propaganda and soon ascended to Faisal's inner circle, becoming one of the few people trusted to directly raise money on Faisal's behalf.

Ramic then put Faisal's instructions into action and traveled to Syria to join ISIS. Upon arriving in Syria, Ramic completed an ISIS intake form, indicating that he wished to become a fighter. To prepare for battle, Ramic went through military-style training where he learned warfare tactics and how to use combat weapons. His classmates recalled that he expressed a particular interest in automatic weapons and sniper rifles.

After completing his training, Ramic fought in the siege of Kobane, a city in northern Syria. He was on the front lines of the initial assault on the city. During this battle, ISIS primarily fought against a local militia group. But the United States also supported that local militia, launching air strikes against ISIS forces. Though the attack was ultimately unsuccessful, ISIS wreaked enormous havoc on the city and its populace, displacing hundreds of thousands of civilians and committing numerous atrocities. Roughly 100,000 people died during the campaign.

Following the siege of Kobane, Ramic continued to support ISIS's mission. He posted on social media, praising ISIS's public beheading of Coptic Christians in Libya, boasting about how many bodies he could fit in the back of a car, and bragging that he had "slave girls" cleaning his house….

Eventually, Ramic became disillusioned with ISIS. He was disappointed that it didn't "apply[] Islamic principles" strictly enough and that the people he met in Syria "did not practice the Muslim faith at all." So he decided to abandon ISIS and travel to Turkey instead.

Once Ramic entered Turkey, Turkish authorities arrested him for engaging in terrorism. After holding him in custody for five years, Turkish authorities turned Ramic over to the United States…..

Among other things, the court rejected the district court's downward departure from the sentencing guidelines:

Throughout sentencing, the district court downplayed ISIS's mission and Ramic's actions. It described Ramic's conduct as "participation in an organized army intent on capturing a piece of territory for the creation of their own state." And it repeatedly characterized Ramic as a "soldier" and "fighter" who merely "went to join an army."

But Ramic was no ordinary soldier. That's because ISIS isn't an army governed by the laws of war or a code of ethics like our armed forces. It's a terrorist group that has engaged in countless atrocities.

And if there were any doubt about ISIS's brutality, the government proved it at trial. First, the government established that ISIS carried out a large suicide attack at a mosque in Kuwait. Then, ISIS targeted Belgium, where a member began shooting inside a museum, murdering four people. Around the same time, ISIS executed 700 cadets at a military school in Iraq, killing one young soldier after another. And the following year, ISIS publicly beheaded 21 Coptic Christians simply because those innocent civilians dared to practice their faith.

What's more, the government showed that Ramic embraced ISIS's radical beliefs and atrocities. On social media, he hoped for the day when President Obama's daughters would "be sold as [slaves] in one of the local markets." He threatened the "rafidah/shia" Muslims that they must convert to Sunni Islam "or Die." He posted a photo of a United States "fallen veterans" brochure alongside an ISIS flag and rifles and asked others if they were "ready for a joint mission" to "make more [U.S. soldiers] fall." And he celebrated the beheadings of the Coptic Christians: "If [J]esus was alive today he would be with Islamic State, and behead #Copts for taking him as god besides Allah." The district court, however, failed to address these posts in determining the seriousness of Ramic's offense….

Ramic intended to help ISIS gain power and territory so that it could wage a global jihad. Plus, Ramic's participation meant that ISIS needed one fewer fighter on the battlefield in Syria and could instead afford to send its members to commit terrorist attacks around the world. The district court's failure to grapple with ISIS's brutalities or recognize how Ramic's efforts facilitated those atrocities caused it to understate the seriousness of his crimes.

The district court also stated that Ramic's actions didn't involve "any acts of senseless violence against innocent people." But that ignores the district court's own factual findings. The district court adopted the PSR [Pre-Sentence Report] without change. The PSR explicitly noted that the siege of Kobane—which Ramic participated in—led to the displacement of hundreds of thousands of civilians and the deaths of about 100,000 people. The PSR further explained that ISIS engaged in atrocities against civilians in the area.

Granted, there's no specific evidence about what Ramic did during the siege. But we know that his participation in the siege of Kobane supported ISIS's commission of brutalities. And we know that he abused civilians by forcing "slave girls" to clean his house. So the record—including the district court's own factual findings—undermines the court's assertion that Ramic's conduct didn't involve "senseless violence" against civilians.

Finally, the district court downplayed Ramic's crimes by claiming that he didn't engage "in any acts of terrorism … in a more common sense" understanding of that term. Specifically, the district court emphasized that "[t]here were no bombs" or "horrible incidents of gun violence against crowds."

First, we don't know whether that's true—ISIS regularly targeted civilians with bombs and guns. Second, even though there's no specific evidence that Ramic engaged in such conduct, the district court's rationale still doesn't justify such a substantial downward variance. A district court must ensure that a sentence "meshes with Congress's own view of the crime['s] seriousness." Congress adopted a broader definition of material support that extends beyond just launching bombs or shooting into a crowd. See 18 U.S.C. § 2339A(b)(1) (defining "material support" as "any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel …, and transportation"). By fixating on its own unduly narrow conception of terrorism, the district court ignored its obligation to craft a sentence that reflects Congress's broader view of that crime….

The appellate court also faulted the district court for "plac[ing] too much weight on national sentencing data":

The district court started with the median sentence for terrorism defendants with the same criminal-history category and offense level as Ramic, which was 168 months. It then subtracted 67 months for the time Ramic spent in Turkish custody and arrived at a final sentence of 101 months' imprisonment….

[W]hile a district court may consider national statistics to evaluate potential sentencing disparities, district courts may not "elevate the Commission's statistical data over the text of the Guidelines themselves." That's because it is the role of the Sentencing Commission—not district courts—to update the Guidelines in response to new empirical data.

Plus, sentencing statistics have important limitations that can prevent district courts from making meaningful comparisons between cases. For example, the data may be "so general that it often is difficult to know whether offenders grouped into the same primary offense category have indeed been found guilty of similar conduct." …

Here, … [t]he district court started with the median sentence for similarly situated offenders, even though it admitted it didn't "have a whole lot of texture to what these other defendants did." Without any comparison to other defendants, it asserted that it "tend[ed] to view this more along the median of 168 months." And in doing so, the district court ignored significant gaps in the sentencing data.

First, the relevant sample size included only nine other defendants. So it's possible the data was skewed by one or two outlier cases.

Second, the bare sentencing data didn't explain the severity of the other defendants' crimes, specify whether they accepted responsibility, or indicate whether they had been rehabilitated. Despite the lack of these key details, the district court still somehow determined that Ramic's conduct was "along the median of 168 months." But without more information, the district court had little basis to conclude that Ramic was similarly situated to those other defendants. Did they travel to Syria and actually fight in a war? Did they boast about their activities and their hatred for America? We don't know. Indeed, compared to other defendants who engaged in conduct like Ramic's, his sentence is shockingly low….

And the court held that the "district court also failed to properly weigh the need to protect the public from Ramic's potential future crimes":

[E]mpirical research on Americans who traveled to join jihadist groups in Syria and Iraq supports these observations. Even after returning to the United States, those individuals still pose a threat because they can support local jihadist networks, share their knowledge on how to conduct terrorist attacks, and recruit new members….

[U]nder the district court's sentence, Ramic would be released at age 39, so he would still be capable of launching future attacks. [And] Ramic received military-type training from ISIS. That means he's "far more sophisticated than an individual convicted of an ordinary street crime" and thus "poses a heightened risk of future dangerousness." …

Perhaps most importantly, Ramic hasn't disavowed terrorism. He left ISIS not because he disagreed with the group's mission or its brutal tactics, but because he believed ISIS was corrupt….

Plus, Ramic hasn't demonstrated remorse or accepted responsibility for his crimes. At sentencing, he delivered a lengthy monologue, stretching over 11 pages of the sentencing transcript, in which he lambasted the case against him. Ramic insisted that he was "an innocent man" and that he "completely reject[ed]" the charges against him. He claimed it was a "sham prosecution from the start" that was "brought by biased, prejudiced, … rogue[,] and corrupt prosecutors … with a compromised grand jury." Ramic's belief that he did absolutely nothing wrong is yet another indication that he may return to terrorism upon his release. And he may now have an additional motive to attack the United States after serving a prison sentence for what he believes was a "sham prosecution." …

These concerns about Ramic returning to terrorism upon his release aren't merely hypothetical. Courts' refusals to incapacitate terrorists for a long period of time have had deadly consequences. See, e.g., Katrin Bennhold, Melissa Eddy & Christopher F. Schuetze, Vienna Reels From a Rare Terrorist Attack, N.Y. Times (Oct. 9, 2021) (describing a terrorist who was sentenced to just 22 months in prison for traveling to join ISIS, was released after one year, and then launched an attack in Vienna that killed four people and wounded another 23); Sadie Gurman, Old Dominion Shooting Suspect Had ISIS Conviction, Was Subdued by Students, Wall St. J. (Mar. 12, 2026, at 19:00 ET) (describing a terrorist who provided material support to ISIS, received a sentence far below the Guidelines range, was released, and then opened fire in a university classroom, killing the instructor and wounding two others)….

When sentencing terrorists, protecting the public is of primary importance. The district court's failure to properly weigh this factor when dealing with Ramic makes his sentence substantively unreasonable.

Amanda E. Gregory represents the federal government.

The post 8½-Year Sentence for American Who Fought for ISIS Is Too Lenient, Says Sixth Circuit appeared first on Reason.com.

The post Today in Supreme Court History: May 18, 1860 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

From Wikipedia, photo by Dmitry Rozhkov of display "Rock on bones" in Gallery "Vinzavod", Moscow (2008)

My father Vladimir was remarking yesterday about an item from his youth in the USSR: People wanted to hear Western music (such as jazz and rock), but the Soviet authorities wouldn't allow it to be distributed. One could sometimes hear it on foreign shortwave broadcasts, but how to record it? And if one could get a smuggled foreign LP, how to duplicate it? Consumer tape recorders were generally unavailable. People had record players, and some people managed to cobble together recording machines for LPs. But the standard recording medium—vinyl—wasn't available to ordinary consumers.

So people would record instead on used X-rays, such as the ones you can see above. The story made its way into the West some time ago; there's a recent book on the subject, Bone Music: Soviet X-Ray Audio, and an accompanying web site. Here's an excerpt from the site:

The bootleggers' first technical problem, that of obtaining a machine to record with was relatively straightforward. Literature existed explaining audio recording techniques (say in case a righteous citizen wanted to copy the speeches of Comrade Stalin) and various recording machines had been brought back from Germany as trophies after the second world war. These could be adapted or copied, but a further problem existed. The State completely controlled the means of manufacturing records. You couldn't just go and buy the vinyl or shellac or lacquer needed in a store somewhere.

But at some point, some enterprising music lover hit on a genius idea. An alternative source of raw materials was available - used X-ray plates obtained from local hospitals. And that is where this story really begins. For many older people in Russia remember seeing and hearing strange vinyl type discs when they were young.

The discs had partial images of skeletons on them and were called 'Bones' or 'Ribs' and they contained wonderful music, music that was forbidden. The practice of copying and recording music onto X-rays really got going in St Petersburg, a port where it was … easier to obtain illicit records from abroad. But it spread, first to Moscow and then to most major conurbations throughout the states of the Soviet Union.

The term "Roentgenizdat" is of course cognate to "samizdat." "Samizdat" was a combination of "self-" ("sam") and the first two syllables of "publishing house" ("izdatel'stvo"). The "sam" was replaced by "Рентген," often anglicized as "Roentgen," which is the root for all things X-ray in Russian (after the discoverer of X-rays, Wilhelm Conrad Röntgen).

The post Memories of a Different Planet: Roentgenizdat appeared first on Reason.com.

The post Today in Supreme Court History: May 17, 1954 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

The post Today in Supreme Court History: May 16, 1918 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

Days before Virginia's deadline to begin administering the 2026 election for members of the United States House of Representatives, the Supreme Court of Virginia invalidated an amendment to the Commonwealth's Constitution that authorizes the General Assembly to adopt new congressional maps.

The Court purported to find a procedural flaw in the amendment's passage and ratification: that the General Assembly failed to pass the amendment prior to the "next general election" before passing it a second time and referring the amendment to the people for their approval. The basis for that holding was the Court's view that, contrary to the Constitution's own definition of the term "election" to refer to a single day in November, the term instead encompasses the entire period of early voting beginning in September. Based on that novel and manifestly atextual interpretation, the Court overrode the will of the people who ratified the amendment by ordering the Commonwealth to conduct its election with the congressional districts that the people rejected.

A stay is warranted because the decision by the Supreme Court of Virginia is deeply mistaken on two critical issues of federal law with profound practical importance to the Nation. The decision below violates federal law in two separate ways. First, it predicated its interpretation of the Virginia Constitution on a grave misreading of federal law, which expressly fixes a single day for the "election" of Representatives and Delegates to Congress. See 2 U.S.C. § 7. Where a state court's decision on purportedly state-law grounds was "interwoven with the federal law," this Court may intervene to ensure that the state court's decision complies with federal law. Michigan v. Long, 463 U.S. 1032, 1040 (1983). See also Three Affiliated Tribesof Fort Berthold Rsrv. v. Wold Eng'g, P.C., 467 U.S. 138, 153 (1984) (vacating state supreme court decision whose interpretation of state statute "rest[ed] on a misconception of federal law").

Second, by rejecting the plain text of the Virginia Constitution's definition of the term "election" to adopt its own contrary meaning, the Supreme Court of Virginia "transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate federal elections." Moore v. Harper, 600 U.S. 1, 36 (2023) (cleaned up). Either violation is sufficient for this Court to reverse the decision below. Accordingly, there is a "reasonable probability that this Court will grant certiorari and will then reverse the decision below."

The post S. Ct. Denies Stay of Virginia Supreme Court's Redistricting Referendum Decision appeared first on Reason.com.

The Complaint alleges the following:

Defendant James O'Keefe is a conservative political activist whose organization, Defendant O'Keefe Media Group ("OMG"), frequently engages in "sting" operations in which its agents use false identities to arrange meetings with individuals affiliated with government, mainstream media, or progressive organizations, and surreptitiously record them with the goal of publishing the subject's potentially unflattering or controversial statements so as to tarnish the reputations of the subject or their affiliated institution or, in OMG's words, to "expos[e] corruption." Plaintiff, a top secret-cleared information systems security consultant to government agencies, including the Central Intelligence Agency, the National Security Agency and the Office of Director of National Intelligence, fell prey to one such operation in April 2024, during what he thought were two romantic dates with "Jane Doe," who unbeknownst to Plaintiff, was an OMG employee.

Jane Doe contacted Plaintiff via the Bumble dating app and, during both dates, represented herself as a liberal and pressed him for details on his work, including whether certain government agencies may have surveilled or withheld information from then-former President Donald Trump. In response to this questioning, Plaintiff stated, inter alia, that while "anything was possible" and he could not give Jane Doe a straight answer, he "believed" some information was withheld, and that NSA or CIA "could have" surveilled Trump. {The videos posted by OMG, which Defendants link to in their Motion and which the Court may consider as intrinsic to the Complaint, contain statements that are much more explicit than those alleged in the Complaint (and do not appear to be cut or deceptively edited).}

On the second date, Plaintiff noticed what he thought was a recording device in Jane Doe's bag (which she had kept on the table during both dates) and asked her whether he was being recorded. In response, she denied that, but then repeatedly refused to allow him to inspect her bag and shortly left the restaurant. Despite this experience, Fseisi later agreed to meet Jane Doe again in the District of Columbia, where he was instead confronted by O'Keefe and a cameraman.

In early May, 2024, OMG made multiple posts on its website and social media accounts which included video footage from the first and second dates and the O'Keefe confrontation that included Plaintiff's statements to Jane Doe that "we kept information from him [Trump]" (and that the "we" specifically included past CIA Directors Gina Haspel, Mike Pompeo and members of their executive staffs), and showed him responding affirmatively to Jane Doe's question of whether "the intel community used FISA [the Foreign Intelligence Surveillance Act] to spy on Trump and his team." The posts also included O'Keefe's commentary on Plaintiff's statements and other topics related to purported intelligence community activity.

Plaintiff alleges that he suffered various professional repercussions from these publications, chiefly that one or more federal agencies placed a "flag" on his security clearance on an unspecified date, and that he has been rejected from multiple jobs and/or projects on clearance-related grounds, resulting in eight months of unemployment. Plaintiff also alleges, inter alia, "severe emotional distress … [f]ear and terror resulting from death threats directed towards him … [and] damage to his personal and professional reputation."

Plaintiff sued, but the court rejected his misrepresentation claim:

In Food Lion v. Capital Cities/ABC, Inc. (4th Cir. 1999), two ABC news reporters used false identities to obtain jobs at branches of Food Lion's grocery store chain in order to investigate the chain's labor and food handling practices, and after being hired based on misrepresented identities and experience, they used hidden cameras and microphones to gather footage which was aired on a television news broadcast…. [T]he Fourth Circuit … [held that] Food Lion could not recover "publication damages," which it defined as all damages resulting from the news broadcast itself, because those damages were reputational in nature and thus represented an attempt to circumvent the Sullivan standard for defamation claims by public figures….

All of Plaintiff's claimed damages arise out of OMG's publications, however characterized, and are therefore barred under Food Lion. Here, as in Food Lion, OMG's publications, whether defamatory or "a product of misrepresentation," were clearly a form of expression (viz., what Plaintiff said and what OMG claimed he said) and did not constitute the breach of a promise as in Cowles…. [T]he Fourth Circuit held that Food Lion was not entitled to publication damages without meeting the Sullivan standard "to give adequate 'breathing space' to the freedoms protected by the First Amendment." Plaintiff's claims to recover damages, all of which arise out of OMG's publications, are therefore foreclosed by the First Amendment….

And the court rejected plaintiff's Federal Wiretap Act claim; the federal law (unlike the laws of some so-called "two-party consent" states) allows secret recording that's consented to by one party to the communication unless the "communication is intercepted for the purpose of committing any criminal or tortious act in violation of" federal or state law, and the court held this exception doesn't apply here:

Plaintiff alleges that the recordings were made for the tortious purpose of defaming him; but while he concedes that he does not allege a defamation claim or rely on any defamatory aspect of Defendants' public statements, he argues that his misrepresentation and conspiracy allegations provide the tortious purpose for the recordings.

The Purpose Provision requires an intent to commit a future tortious act. Here, the relied-upon misrepresentations all occurred before the publication of the recordings (viz: chiefly during the Bumble dating app messaging between Plaintiff and Jane Doe) and were part and parcel of Defendants' scheme to obtain the recordings, not the purpose for which the recordings were intended to be used. Because Plaintiff has not otherwise plausibly alleged that Defendants intercepted his oral communications with the purpose of committing a subsequent tort or criminal offense, his wiretapping claim must be dismissed.

Benjamin Barr and Stephen Klein (Barr & Klein PLLC), and Earl N. "Trey" Mayfield, III and Dan Backer (Chalmers, Adams, Backer & Wallen, LLC) represent defendants.

The post Secret Recording at Pretend Date by O'Keefe Media Wasn't Tortious, Court Holds appeared first on Reason.com.

Last week, I recorded a We the People podcast episode for the National Constitution Center discussing the increased volume of applications and orders on the Supreme Court's interim docket, aka the "shadow docket," with Professor Steven Vladeck of the Georgetown Law Center, moderated by Julie Silverbrook. The podcast has now been released as is available for listen here, or on your podcast platform of choice.

The post Vladeck v. Adler on the Shadow Docket appeared first on Reason.com.

From Payne v. State, decided last week, in an opinion by Justice Benjamin Land:

Hannah Payne was sentenced to life in prison plus 13 years for the murder and false imprisonment of Kenneth Herring and the possession of a firearm during the commission of a felony. In response to Payne's motion for new trial, the assistant district attorney assigned to the case, Deborah Leslie, filed a brief that contained non-existent cases and cases that do not stand for the proposition asserted in the brief.

In an order largely prepared by ADA Leslie, the trial court denied Payne's motion for new trial. That order contained citations to non-existent cases and cases that do not stand for the proposition asserted in the order.

In response to Payne's appeal, ADA Leslie once again cited cases that do not stand for the proposition asserted. As a result of these filings, we have been sidetracked from our obligation of resolving the merits of Payne's appeal and have had to devote significant time and resources to the discovery of this misconduct and deciding what to do about it. As outlined below, we admonish ADA Leslie and the Clayton County District Attorney's office; we sanction ADA Leslie and suspend her privilege to practice in our Court; and we vacate the trial court's order denying Payne's motion for new trial and remand the case to the trial court with instruction that it issue a new order that does not contain the citation of fake cases or other misattributed case citations….

[On appeal,] ADA Leslie acknowledged that the case citations generated by artificial intelligence software were not independently verified before inclusion in the State's briefs or proposed order and represented that she had implemented safeguards to ensure that fictitious or misattributed authorities would not appear in any future filings. In addition to the nine cases listed in this Court's March 20, 2025, order, ADA Leslie identified twelve additional cases in her briefing before the trial court that she acknowledges were generated by artificial intelligence software, were not independently verified, and do not stand for the propositions for which they were offered….

We admonish ADA Leslie and the Clayton County District Attorney's Office for failing to verify the accuracy of case citations and then including a substantial number of inaccurate case citations in their filings before this Court and the trial court. See Supreme Court Rule 7 ("Parties and counsel are responsible for ensuring that their filings with the Court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require.").

{We acknowledge the Clayton County District Attorney's March 27, 2026, letter to this Court, in which the District Attorney apologized for the post-trial filings in this case, stated that her office would be "expanding [its] internet and social media use policies to specifically address the use of artificial intelligence," and indicated that "strict disciplinary action ha[d] been taken against" ADA Leslie. The dissent relies upon this letter in support of its position that we should not admonish the District Attorney. First, we have not admonished the District Attorney individually but rather admonished her office, since ADA Leslie submitted the filings at issue on behalf of that office. Second, we are puzzled by the dissent's reference to the District Attorney as the "elected District Attorney." All district attorneys in Georgia are elected, and that status has no bearing on their obligations to the courts in which they practice or our obligations when faced with misconduct arising out of their offices.} …

We hereby suspend ADA Deborah Leslie's privilege to practice before the Supreme Court of Georgia for six months…. {The sanctions imposed by this Court are case-specific and based on the information and material in the record. Nothing stated herein shall be construed to affect, in any manner, any disciplinary proceedings that may be brought by the State Bar of Georgia, the Judicial Qualifications Commission, or any other entity.} …

Because the trial court's September 12, 2025, order denying Payne's motion for new trial contains numerous fictitious or misattributed case citations, we hereby vacate the trial court's order and remand the case to the trial court with instructions that it prepare and issue a new order on Payne's motion for new trial. The trial court's order shall not contain any fictitious or misattributed case citations, and given the unfortunate circumstances that have led us to this point, the trial court's order shall not be prepared by counsel for either party.

We strongly encourage trial courts to carefully review proposed orders with the understanding that artificial intelligence software, with all of its potential risks and benefits, may have been used to prepare such proposed orders….

Justice Shawn Ellen LaGrua, joined by Justice Verda Colvin, dissented "as to the admonishment of the elected Clayton County District Attorney":

In this opinion, the majority admonishes and sanctions the assistant district attorney who represents the State in this case, gives direction to the presiding judge regarding the issuance of a new order, and admonishes the elected District Attorney. While I recognize that the District Attorney's name appears on the briefs and she ultimately bears responsibility for the actions of those who work for her, I also understand that she must be able to trust and rely upon her staff to do their jobs ethically and professionally. Every assistant district attorney takes an oath to that effect.

In this instance, the District Attorney sent a lengthy letter to this Court, copied to opposing counsel, apologizing for the conduct of the assistant district attorney and outlining the severe sanctions imposed on that attorney for her actions in this case. Additionally, the District Attorney assured this Court that she is immediately implementing policies and procedures to keep this from happening in the future. We have absolutely no reason to doubt the veracity of that letter. And I find such proactive disciplinary and preventative measures to be more than sufficient under the circumstances.

Based on the foregoing, I vehemently decline to admonish the elected Clayton County District Attorney and respectfully dissent to that portion of the majority opinion.

The post Georgia High Court Admonishes D.A.'s Office, Over "Vehement" Dissent, for Role in AI Hallucinations in Court Order appeared first on Reason.com.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Good news! With near-unanimous bipartisan support, the Colorado General Assembly this week passed HB26-1250, a civil forfeiture reform bill that closes a longstanding loophole in Colorado law allowing property to be forfeited without a criminal conviction. The bill also makes Colorado one of the first states in the nation to grant forfeiture defendants the right to an attorney in civil cases. "Even after significant reforms in recent years, Colorado's civil forfeiture laws still permit the government to permanently confiscate property without a criminal conviction," said Alasdair Whitney, legislative counsel at the Institute for Justice. "This bill closes that loophole for good, and it also makes Colorado the first state in the nation to grant property owners the right to an attorney in the forfeiture proceeding, just like there is in criminal court."

New on the Short Circuit podcast: Get in loser, we're going shopping. With Roy Moore! (No, he's not on the show. But we discuss how he was allegedly at the mall. A lot. Along with "Santa's helper.")

1. New York's Chancellor Kent (1811): "It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect." And the same is true in our new land of liberty. New York's highest court (2025): No, actually it's totes fine. Second Circuit (2026): And constitutional in all the ways.
2. The American Association of University Professors and the American Federation of Teachers sue the feds to restore grants withheld from Columbia University. The unions move for a preliminary injunction, lose, and appeal to the Second Circuit. While the appeal is pending, the unions and the feds strike a deal and the unions withdraw their claims, mooting the case. Should the denial of the preliminary injunction be vacated? Second Circuit: Yes, the parties stipulated that plaintiffs didn't cause the mootness. Dissent: But we all know that they kinda did.
3. Retailers Bass Pro Shops and Cabela's use a JavaScript code on their websites that tracks your mouse movements, clicks, scrolls, zooms, window resizes, keystrokes, and text entries, allowing them to build digital "fingerprints" of online shoppers. Aggrieved shoppers across the country sue, and their cases are consolidated in the E.D. Pa., which dismisses their claims. Third Circuit: Which was generally correct for the folks who merely browsed the websites. But the two plaintiffs who made purchases—a camp chair and a belt—have standing, because this is a little bit like the common-law tort of "intrusion upon seclusion."
4. John Hancock routes customers' calls through Amazon and another tech company, which authenticate callers based on their biometric voiceprints. Customers sue, alleging that Illinois law bans collecting their voiceprints without their consent. After a circuitous route through the state and federal courts, the Third Circuit concludes that Illinois's law exempts financial institutions—an exemption the tech companies can invoke when authenticating people engaging in financial transactions.
5. Company buys contracts for motor vehicle payments, which provide it collateral and the right to take possession when the borrower defaults. At issue here are two motorcycle contracts it purchased in South Carolina, one ridden by a man killed in front of a Waffle House and one ridden by a man allegedly affiliated with Hells Angels who was charged with the murder. Sheriff seizes both motorcycles as material evidence, refuses to return to the company. Fourth Circuit: The Fourth Amendment defines the process due under the Fourteenth Amendment, and this is all above board.
6. Virginia undergraduate at Liberty University applies for the Virginia Tuition Assistance Grant Program. But when she changes her major from "Music Education: Choral" to "Youth Ministries" and, later, to "Music & Worship," she's informed she is no longer eligible for the grant, which excludes "religious training or theological education." Fourth Circuit: Too bad for her, the Supreme Court's 2004 ruling in Locke v. Davey—a nearly identical case upholding a similar Washington prohibition—is still good law. Concurrence: It is also a "stain on our Free Exercise jurisprudence" that the Supreme Court should "formally bur[y]."
7. As part of a wide and long-running program, in the 1890s the U.S. gov't forcibly removed two Native American boys from their homes and installed them at the Carlisle Indian Industrial School in Pennsylvania. Things did not go well. both were buried over the next few years. Their bodies were later moved to a military cemetery where a sign now notes their historical significance. In 2023, their tribe asked to repatriate the remains under a 1990 law. Fourth Circuit: Repatriation is required as the remains are a "holding or collection." Dissent: A graveyard is neither.
8. Michigan man, arrested following domestic disturbance, admits to having ingested several pills of unknown identity. He's taken to the emergency room, which medically clears him for incarceration. While in pre-trial detention, he becomes lethargic and vomits. At some point in the early morning hours, he dies from what is later determined to be an overdose of antidepressants. Deliberate indifference? Sixth Circuit: Denial of qualified immunity reversed. He may have been unwell, but his need for emergency medical care was not so obvious that a layperson can be held liable.
9. One reason for reading a long novel is that after years of everyone's trials and tribulations you can enjoy the villains getting their comeuppance. For example, Becky Sharp is looking pretty nifty halfway through Vanity Fair but (spoiler alert) not so sharp at the end. Sadly, civil rights stories do not always follow the same arc. But, as told by the Sixth Circuit, a $10 million judgment for prosecutorial misconduct in Detroit—concerning a guy who was framed and wrongly spent years behind bars—is roughly equivalent.
10. An American citizen who travels to Syria to join ISIS and in fact fights on the front lines against American-supported Kurdish troops is eventually convicted of providing material support to a terrorist organization. District court: But this wasn't, like, terrorism-terrorism. This guy just joined an army. Sixth Circuit: Shooting people on behalf of ISIS is pretty much the definition of terrorism. Back he goes for resentencing!
11. The circuit splitting continues. Sixth Circuit (2-1): Non-citizens in the country who were never lawfully admitted to the country are not subject to mandatory detention without bond pending their removal proceedings.
12. There's a lot of juicy morsels in this Sixth Circuit opinion about a First Amendment challenge to some of Kentucky's judicial-campaigning rules brought by a pair of erstwhile candidates. Standing. Voluntary cessation. A dash of Pennhurst. Some Younger-abstention talk. No seriously, guys, this is a good one.
13. Wisconsin towing company allegedly overcharges and fails to have its employees wear reflective safety vests. It's summarily kicked off the county's approved towing list. A due process violation? Seventh Circuit: Nope. The phrase is "deprive any person of … property,without due process of law." And there's no property interest in just being on the dispatch list. Maybe under certain circumstances, but not here. Dismissal affirmed.
14. For some clever lawyering, check out this 2-1 decision from the Eighth Circuit. In 2024, the Supreme Court held that for a certain enhanced mandatory minimum to apply, a jury, not a judge, must find the predicate facts about a prior serious drug conviction. But a statute, 21 U.S.C. § 851, says a defendant can ask those facts to be found by a judge. Drug dealer: So that means no one can make the finding, and the enhancement can't apply! Gov't: That seems like it should be wrong. Eighth Circuit: He's right! Dissent: Too clever by half. We should just remand to a jury.
15. Defendant in a North Dakota fraud trial wasn't permitted to introduce statements from a recording of the gov't preparing its star witness, a co-fraudster who received a sweetheart plea deal. Eighth Circuit: Because that video arguably showed the witness was angry with the defendant and the prosecutor suggested his account to him, it should have been allowed as relevant evidence about the witness's bias and credibility. New trial.
16. In an Idaho tax-fraud trial, just as the jury is on the cusp of a verdict, one juror informs the judge that another juror made a racist comment. After interviewing all the jurors, the judge excuses the allegedly racist juror, and the remaining 11 return a guilty verdict on several charges. Ninth Circuit: There's a strong presumption of prejudice when a racially biased juror is involved in deliberations, one the gov't didn't overcome here. New trial. Dissent: Most jurors didn't even hear the offending comment, and they all said they weren't influenced by it. The verdict should stand.
17. Two Georgia voters compare USPS change-of-address data to voter registrations, then sue the state alleging that it's violating federal law by not kicking movers off the voter rolls. Eleventh Circuit: Even if your analyses "shook [your] faith in the electoral process" and "undermined [your] confidence," that is not a sufficiently particularized injury to confer standing.
18. And in en banc news, the Ninth Circuit will not reconsider its decision that the University of Washington violated the First Amendment by punishing a professor for mocking land acknowledgements in his course syllabus.
19. And in further en banc news, the Tenth Circuit will not reconsider its decision that an officer did not violate the Fourth Amendment by peeping through a one-inch gap in a motel room's blinds.
20. And in extended en banc news, the Eleventh Circuit will reconsider its decision that courts have the power to enforce the Takings Clause's just-compensation requirement—a question on which IJ has expressed some firmly held views.

New case! After an Omaha family christened their speakeasy bar "The Barber Shop Blackstone" in honor of their dad ("Don the Barber" DiGiacomo), the Nebraska Board of Barber Examiners threatened them with criminal punishment. Why? Because—this is not a joke—the Board claims only licensed barbers can use the words "barber shop" or display a striped barber pole. This week IJ joined the family's already filed federal lawsuit. And while it continues, they're unveiling a temporary new name: The Censored Shop Blackstone, to avoid potentially ruinous fines and even jail time.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.

On July 18, 2025, President Donald J. Trump filed his Complaint … for defamation based on an article in the Wall Street Journal … linking President Trump to convicted sex offender Jeffrey Epstein. On April 13, 2026, on Defendants' motion, the Court dismissed the Complaint without prejudice based on President Trump's failure to plausibly allege that Defendants acted with actual malice …. [See this post on the dismissal. -EV]

On April 14, 2026, President Trump filed the Motion, requesting leave to conduct limited discovery on (1) "[h]ow each Defendant acted with actual malice"; (2) "[h]ow Defendants purposefully avoided the truth of the statements at issue"; and (3) "[h]ow Defendants allegedly obtained the letter and supposedly verified its contents, including Plaintiff's signature." …

"As the Supreme Court has noted, … the doors of discovery do not unlock for a plaintiff armed with nothing more than conclusions." "Rather, discovery follows 'the filing of a well-pleaded complaint. [Surely,] [i]t is not a device to enable the plaintiff," like President Trump here, "to make a case when his complaint has failed to state a claim.'"

Moreover, President Trump's request to conduct discovery on issues related to actual malice before filing a well-pleaded complaint contravenes the purpose behind the actual malice standard. As detailed in the Dismissal Order, in defamation cases involving a public figure plaintiff:

[T]here is a powerful interest in ensuring that free speech is not unduly burdened by the necessity of defending expensive yet groundless litigation. Indeed, the actual malice standard was designed to allow publishers the "breathing space" needed to ensure robust reporting on public figures and events. Forcing publishers to defend inappropriate suits through expensive discovery proceedings in all cases would constrict that breathing space in exactly the manner the actual malice standard was intended to prevent. The costs and efforts required to defend a lawsuit through that stage of litigation could chill free speech nearly as effectively as the absence of the actual malice standard altogether.

Michel v. NYP Holdings, Inc. (11th Cir. 2016) (quoting New York Times v. Sullivan (1964)). Thus, allowing President Trump to conduct discovery on actual malice, where his initial attempt at pleading a defamation claim fell short, is exactly the type of "expensive yet groundless litigation" the Eleventh Circuit has cautioned against.

Amanda B. Levine, Katherine M. Bolger, and Meenakshi Krishnan (Davis Wright Tremaine LLP), Andrew J Levander and Steven A. Engel (Dechert LLP), and Eric Corey Edison, George S. LeMieux, and Timothy John McGinn, Jr. (Gunster Yoakley & Stewart, P.A.) represent defendants.

The post No Discovery into Alleged "Actual Malice" in Trump's Lawsuit Against WSJ Over Jeffrey Epstein Birthday Letter Story appeared first on Reason.com.

Yesterday evening, as expected, the Supreme Court granted mifepristone manufacturers' requests for a stay of an order of the U.S. Court of Appeals for the Fifth Circuit blocking a 2023 Food and Drug Administration regulation allowing doctors to prescribe mifepristone as an abortifacient via telemedicine. The order was issued shortly after the expiration of an administrative stay entered, and then extended, by Justice Alito. Justices Thomas and Alito each dissented. There are no other recorded votes.

As is common in such situations, the order in Danco Laboratories v. Louisiana stays that of the lower court pending the disposition of the appeal and any subsequent petition for certiorari. This means the case will find its way back to the Court, perhaps even later next term.

The order was unsurprising because, as I noted here, the Fifth Circuit's order blocked the implementation of a federal regulation on questionable grounds. Louisiana's suit is based upon an aggressive and somewhat speculative theory of standing and the Fifth Circuit's order relies upon faulty reasoning from a prior, since-vacated, opinion from the prior round of mifepristone litigation. Thus there were at least two stay considerations weighing strongly in the manufacturers' favor: The Fifth Circuit had blocked a federal regulation and the manufacturers have a strong argument they are likely to prevail on the merits.

That said, Justices Thomas and Alito make some weighty points in their defense, and the issuance of a stay here was never certain. As I noted last week, while an army of amici filed briefs with the Court, the federal government did not. The federal government neither sought a stay from the Court nor filed a brief supporting the manufacturers' defense of the FDA's rule. So while blocking a regulation may presumptively constitute irreparable harm to the federal government, it is not clear that such concerns should carry much weight if the federal government does not raise them. The federal government is not obligated to defend every agency regulation at every turn, even against questionable judgments. (And, for what is worth, this is not the first time this has happened with the FDA. For example, the agency dropped its appeal to  American Association of Pediatrics v. FDA, in which a district court accepted a questionable standing claim and forced the agency to regulate vaping products more aggressively.)

Absent an FDA filing, the manufacturers had to establish irreparable harm on their own, and this is where Justices Thomas and Alito found their stay requests wanting. Neither found the manufacturers' concerns about reduced mifepristone sales particularly compelling. Nor was either moved by concerns that the Fifth Circuit order would make it more difficult to obtain mifepristone in jurisdictions that (unlike Louisiana) allow its use.

As Justice Thomas noted, federal law (the Comstock Act) already prohibits the distribution of abortifacients via the mail. Therefore, he reasoned, the manufacturers were effectively complaining that the Fifth Circuit order would deprive them of "lost profits from their criminal enterprise." I take Justice Thomas' point in the Comstock Act, which remains on the books even if it is never enforced, but the FDA order at issue is not limited to mail-order prescriptions.

Justice Alito made some similar points, while also stressing that mifepristone manufacturers are well aware that the FDA's 2023 order facilitates the provision of mifepristone in jurisdictions where its use to terminate pregnancies is illegal, that the FDA has acknowledged concerns about the analyses upon which the 2023 regulation was based, and that the manufacturers' claim of irreparable harm is undermined by the fact that the FDA has given no indication it would take any enforcement action against manufacturers were the 2023 rule stayed, and it could not be forced to take such actions by federal courts. Prescribing doctors and potential users of mifepristone may be affected, but neither were parties to the case.

Justice Alito's dissent validates Louisiana's concern that it's post-Dobbs ability to enforce its own abortion laws has been undermined by "certain medical providers, private organizations, and States that abhor" its laws. No doubt this is true. If other states and the federal government allow the distribution of something, whether mifepristone or marijuana, other states may have a more difficult time enforcing their own prohibitions. The federal government has the unquestioned power to limit the distribution of mifepristone into states where its use is barred, but it has chosen not to, and the FDA is not required to base its regulations on such concerns. [As for what other states can or cannot do, I recommend Professor Steve Sachs' comments at this Federalist Society panel on abortion law post-Dobbs]

Justice Alito also paused to note that the Court's issuance of an "unreasoned order" granting stays of a lower court action, no doubt to tweak those (both on and off the Court) who routinely complain about "shadow docket" orders issued without explanation (and, in this case, on behalf of private corporations too). He can be forgiven for thinking that many complaints about "shadow docket" orders are driven as much or more by disagreements on the merits as they are concerns about process.

The post Supreme Court "Shadow Docket" Order Preserves Mifepristone Via Telemedicine--For Now appeared first on Reason.com.

On May 9, 2013, the plaintiff and the defendants appeared for a hearing in the Family Court, Richmond County, relating to a child support proceeding between the defendant John Libertella (hereinafter John) and his former wife. The plaintiff, a lawyer, appeared on behalf of his sister-in-law, John's former wife. John was accompanied by his father, the defendant Giovanni Libertella. As the parties left the hearing, they were involved in a verbal altercation, which John video-recorded on his phone. The defendants told a court officer that the plaintiff punched John in the face and that John wanted the police called. The police were called, and the plaintiff was arrested.

In November 2013, the District Attorney's office dismissed the charges against the plaintiff. Multiple news outlets reported on the altercation and the plaintiff's subsequent arrest.

The plaintiff commenced this action against the defendants asserting, inter alia, causes of action sounding in defamation per se, false arrest, and malicious prosecution. After a trial, the jury returned a verdict in favor of the plaintiff and against both defendants on the cause of action alleging defamation per se and against John on the causes of action alleging false arrest and malicious prosecution….

The court upheld the finding of liability:

[B]ased on the evidence adduced by the plaintiff at trial, there was a valid line of reasoning and permissible inferences from which the jury could have concluded that the statements made by the defendants were defamatory per se, because they falsely accused the plaintiff of a serious crime, attempted assault….

"To be held liable for false arrest, a [civilian] defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his or her own volition." "[O]ne who wrongfully accuses another of criminal conduct and induces or procures that person's arrest may be liable for false arrest."

In order to recover damages for malicious prosecution, a plaintiff must establish "that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice." "A civilian defendant who merely provides information to law enforcement authorities, who are free to exercise their own independent judgment as to whether to make an arrest and file criminal charges, will not be held liable for false arrest or malicious prosecution." "[T]o be held liable for malicious prosecution, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." "Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or the District Attorney."

Here, the record demonstrated that the plaintiff would not have been arrested but for the defendants' false statements that the plaintiff had punched John, as well as John's statements importuning the police to arrest the plaintiff. John instigated the arrest, making the police his agents in confining the plaintiff, based upon false information that the plaintiff had assaulted him. Furthermore, the criminal proceeding was instituted by the District Attorney based upon, among other things, false information given by John.

But the court concluded that the jury's damages awards ($10M in compensatory damages and $250K in punitives) were excessive, and ordered a new trial unless the plaintiff agreed to reducing the damages to $400K in compensatory damages and $100K in punitives.

The post $500K Damages for False Report of Assault to Police appeared first on Reason.com.

Plaintiff Dr. Idris Robinson is a non-tenured, but tenure track Assistant Professor of Philosophy at Texas State University. On June 29, 2024, Dr. Robinson delivered a speech in Asheville, North Carolina titled "Strategic Lessons from the Palestinian Resistance" ("Asheville Speech"). Professor Robinson in no way affiliated the talk with Texas State University. During the Asheville Speech, audience members who disagreed with Dr. Robinson's views attempted to livestream the event. A scuffle broke out. The police report documenting the incident does not identify Dr. Robinson as a suspect or witness. Defendants do not contend that Dr. Robinson incited or encouraged the violence.

Dr. Robinson resumed teaching in the fall without incident. After the 2024 fall semester, and again in March 2025, Dr. Robinson received excellent performance reviews. ECF No. 1-3 at 74 ("Dr. Robinson is a fantastic colleague, excellent in all areas of review. Worthy of Merit."); id. at 109 (2024-2025 3rd Year Tenure-Track Reappointment) (noting that the Associate Provost's Action Recommendation is to reappoint Dr. Robinson for one-year and that Dr. Robinson is "making good progress towards tenure").

On June 5, 2025, individuals who disagreed with the content of Dr. Robinson's Asheville Speech began calling for Dr. Robinson's firing on Instagram. That day, due to the posts, Texas State University began receiving complaints about Dr. Robinson. One day later, Dr. Robinson was placed on administrative leave due to "multiple complaints and allegations regarding an incident that occurred in the summer of 2024." In July 2025, Dr. Robinson was informed that "the decision has been reached not to extend your contract beyond the 2025-2026 academic year…." …

Dr. Robinson contends the University's non-renewal decision was due to the content of the Asheville Speech, which Dr. Robinson contends violates his First Amendment Rights. To date, Defendants have not offered any other reason for Dr. Robinson's non-renewal, nor do Defendants refute Dr. Robinson's contention that he was not renewed due to the Asheville Speech….

The court issued a preliminary injunction requiring that Robinson be reinstated; an excerpt from the analysis:

To demonstrate a prima facie case for a First Amendment retaliation claim, a plaintiff must establish that: "(1) he suffered an adverse employment [action]; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighed the governmental defendant's interest in promoting efficiency; and (4) the protected speech motivated the defendant's conduct." Here, retaliation elements 2, 3, and 4 are not disputed by Defendants. {Further, Defendants do not contend that the Asheville Speech's content fell within the First Amendment's "permitted restrictions" [referring to exceptions such as for incitement, true threats, and the like -EV].} The Court, having reviewed Dr. Robinson's evidence, finds that he has met his burden of persuasion for retaliation elements 2, 3, and 4. Dr. Robinson satisfied element 2 because the Israel-Palestine conflict is a matter of public concern. Dr. Robinson satisfied element 3 because the Asheville Speech did not disrupt university operations. Dr. Robinson satisfied element 4 because Defendants essentially admit, and the timeline confirms, that Dr. Robinson's speech motivated Defendants' decision not to renew his contract. Thus, the only question remaining for the Court is whether Dr. Robinson suffered an adverse employment action….

The Fifth Circuit has elaborated what constitutes an adverse employment action in the context of a First Amendment retaliation claim: "Adverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands." … According to Defendants, "non-renewal of a term contract does not appear on" [this] list and, thus, is not an adverse employment action…. [But] Defendants' refusal to renew is materially indistinguishable with a refusal to hire or a discharge …. The Fifth Circuit has confirmed that a refusal to re-appoint can constitute an adverse employment action equal to a discharge….

JT Morris (Foundation for Individual Rights and Expression) and Michael Thad Allen and Samantha Harris (Allen Harris PLLC) represent plaintiff.

The post Court Orders Reinstatement of Untenured Professor Allegedly Non-Renewed for Speech About "the Palestinian Resistance" appeared first on Reason.com.

I am happy to pass along a guest post from Professors Bruce A. Green and Rebecca Roiphe, who are experts in the ethical standards for prosecutors. They wrote about a recent case from Santa Clara, California, in which a judge disqualified District Attorney Jeff Rosen from prosecuting pro-Palestinian protestors who occupied the Stanford University.

When New York Attorney General Letitia James was campaigning for office, she called Donald Trump an "illegitimate president" and vowed to investigate him, his family, and anyone in his orbit. New York District Attorney Alvin Bragg was less explicit. While he emphasized his experience investigating Trump's family and promised to continue his predecessor's investigation into Trump, he also stated that he would follow the facts and law. Courts allowed James and Bragg to oversee cases against Trump, despite the fact that Trump himself along with some observers used these statements to claim that they were politically motivated.

In contrast, a California state judge recently concluded that an elected prosecutor went too far in campaigning for office and could no longer be trusted to make prosecutorial decisions free of political bias. On May 7, a Santa Clara County judge disqualified District Attorney Jeff Rosen and his entire office from prosecuting pro-Palestinian protestors who occupied the Stanford University President's office in 2024, citing campaign statements Rosen made the previous December while the case was pending. Specifically, Rosen proclaimed his commitment to the State of Israel and the Jewish people and included a link to information about the prosecution.  According to reporting, the judge found it problematic that Rosen had referred to the protests as antisemitic even though the individuals were not charged with hate crimes.

Local prosecutors are often elected, so their political engagement is unavoidable. Although prosecutors are not expected to be as disinterested as judges, they are not supposed to have a political axe to grind when they decide whom to investigate and prosecute. This raises the question of how elected prosecutors can properly campaign for office without jeopardizing public faith in high profile prosecutions.  What sort of statements provides appropriate information to the electorate and which cross a line?  Which campaign messages warrant disqualification because the prosecutor will appear to have prejudged the case before reviewing all the evidence? The law is unsettled and varies among different jurisdictions. There are, nonetheless, certain principles that ought to guide elected prosecutors, allowing them to communicate their priorities to the public without expressing prejudice. When they come close to the line, courts should use disqualification sparingly, reserving it for cases of clear bias.

Elected prosecutors are expected to implement the priorities and values of the community, and so voters are entitled to know where candidates stand on certain issues. For example, D.A. Rosen's statements about fighting antisemitism are not only permissible but also appropriate. If the community wants its elected prosecutor to protect the Jewish community, they know that Rosen is on it. But commitments to prosecute particular cases and pursue particular individuals are problematic because they might reflect actual bias and undermine public faith in the ultimate prosecutions. It was unclear whether the link on Rosen's campaign page or his fundraiser emails crossed this line, and the trial judge had considerable discretion to make that call based on the facts presented by both sides.

Courts rarely find that prosecutors' statements on the campaign trail are such obvious expressions of bias against a particular individual that the prosecutor cannot be trusted to make decisions in the case based on the facts and the law.  Unlike other officials, who represent their constituency's policy interests, prosecutors have a duty to seek justice. While this may seem like a vague mandate, it is not meaningless. Prosecutors are required to protect the innocent, prosecute the guilty, treat similar cases similarly, and seek proportionate punishment.  Sometimes, this requires resisting, not complying with, popular sentiment.  Courts generally assume prosecutors will abide by this obligation even in high-profile or politically charged cases, but they police the outer limits.

Campaign statements that reflect a willingness to cave to public pressure, or to compromise these professional obligations for popularity, are troubling.  Even if the prosecutor would act independently once elected, these sorts of statements might well lead the public to lose faith in the elected prosecutor's decision-making.  Even if we take Alvin Bragg at his word that he would follow the facts and law, his public statements touting his past cases against Trump and his family might give the public pause. They provided fodder to Trump's sympathizers, including in Congress, who questioned the validity of the charges Bragg's office brought against Trump.  The cost to the legitimacy of the system is itself concerning, even if prosecutors live up to their professional obligations.

The question remains whether trial courts can and should do anything to address this problem.  As we have previously discussed, courts have varying degrees of discretion to disqualify elected prosecutors based on conflicts of interest.  In Texas, a trial judge may disqualify a prosecutor only if the "conflict rises to the level of a due-process violation," whereas California courts take a much broader view of their power. But even in California, courts are hesitant to disqualify an elected prosecutor, thereby depriving the electorate of its chosen representative.  All prosecutors have beliefs and personal ambitions, and courts can do little to address these even if they could interfere with impartiality.  For example, a court would likely disqualify a prosecutor who obtained a book or movie contract regarding a pending case but can do little about prosecutors' general desire to be associated with a high-profile case and to enter the public spotlight.

If the prosecutor in the Santa Clara case had done nothing more than vow to oppose antisemitism and to protect the Jewish community from criminal attack, there would have been no plausible ground to disqualify him. Prosecutors, like judges, are expected to be able to put aside even strongly felt ideological or personal beliefs to pursue justice in individual cases. The fact that Rosen is personally committed to the state of Israel, that he equates anti-Zionism with antisemitism, or antisemitism with anti-Americanism, are all beside the point. Our system assumes he can be fair in individual cases, even when they touch on these topics.

To the extent that Rosen's campaign material and fundraiser emails addressed the pending case against the protesters and implied that he had some animus toward the defendants in this case or had prejudged how to handle the case before reviewing the evidence, then the judge's decision to disqualify Rosen would make more sense.  The trial court in Rosen's case considered an appellate decision from four years earlier, in which the elected prosecutor of San Luis Obispo was disqualified from prosecuting a Black Lives Matter protester after the prosecutor successfully campaigned based on opposition to that movement.  The appellate court upheld the disqualification decision, endorsing the trial judge's observation that while defendants are not "entitled to a prosecutor to which they are politically or socially or ideologically aligned," they are "entitled to a prosecution not clouded by political or personal advantage to the prosecutor."  This case is an unusual attempt to rein in political bias, but perhaps reflects a growing desire to protect the legitimacy of prosecutions in the face of growing allegations of weaponization.

The lesson is that candidates for office as a prosecutor, like judges, should keep their own counsel if they have views on pending cases. This may not be easy, as the public often focuses disproportionately on high-profile investigations. Aspiring district attorneys can address the policies implicated in these cases but should otherwise confine themselves to discussing their views of criminal law policy and their approach to prosecution in more general terms. Adhering to these guidelines is especially important as the public grows increasingly skeptical of disinterested prosecution.

The post Guest Post: State Prosecutors, Protests, and Politics as Usual? appeared first on Reason.com.

The post Today in Supreme Court History: May 15, 2000 appeared first on Reason.com.

The post Open Thread appeared first on Reason.com.

Enough about the merits of Danco. Let's talk about the formatting.  Usually when an opinion has one footnote, it is not numbered. Rather, there is simply an asterisk. But when there are two or more footnotes, they are numbered.

Justice Alito's solo dissent has two footnotes. But they are not numbered. The first footnote is an asterisk and the second footnote is a dagger.

What happened? This is a solo dissent, and there is no majority opinion. It's not likely Alito had to reply to some argument raised by another Justice. Maybe Justice Alito wanted to use a dagger note? I'm sure someone will have an answer here. Please email me!

The post A Footnote To <i>Danco</i>? appeared first on Reason.com.

Randy Barnett and I are nearing completion of the Fifth Edition of our Constitutional Law casebook. We are still waiting for the last batch of cases from June to finalize a few chapters. Our last edition was published in 2021. Needless to say, a lot has changed, though much of the book remains the same. Still, this experience has reinforced the difference between how students are taught constitutional law, and how practitioners see it on the ground.

In the classroom, we read the landmark decisions that changed the law of the land: Bruen laid down a rigorous test to review gun control laws; Dobbs returned the abortion issue to the states; Students for Fair Admission all-but eliminated affirmative action; and so on. Students who read these decisions from 2022 and 2023 might get the sense that constitutional law changed overnight with respect to guns, abortion, and racial preferences. The reality, however, is far different.

Barely a year after Bruen, Rahimi walked back the "analogue" test. Gun laws have remained virtually unchanged. Blue states have allowed shall-issue carry regimes with many obstructions and burdens. Moreover, the Supreme Court has turned away every single case about the scope of sensitive places and the types of arms covered by the Second Amendment. The two cases argued this term (Hemani and Wolford) present fringe issues that will matter little to gun owners.

Ditto for affirmative action. In the wake of SFFA, the Court turned away Boston Parent Coalition for Academic Excellence Corp. v. The School Committee For the City of Boston (2024). This case cleanly presented a challenge to an affirmative action policy at an elite public school that was evading SFFA. Justices Thomas and Alito would have granted cert . Justices Gorsuch, Kavanaugh, and Barrett were silent. As documented in a new Manhattan Institute report, the rates of racial minorities admitted to elite colleges has remained roughly the same, despite doomsday predictions from Harvard and other groups. Remember Justice Kagan's hypothetical about what would happen if zero black students attended Harvard? To my mind, these numbers suggest that universities developed clever ways to evade SFFA, though the data is not clear. I doubt the Supreme Court will re-enter this fray.

The abortion issues is a bit more complex, but the reality is the same. After Dobbs, doctors began sending mifepristone to red states, and blue states enacted shield laws to immunize these doctors. Dobbs held that abortion would now be an issue for the states to decide, however pro-life states are helpless to stop doctors from flooding their states with abortion pills. Indeed, there are more abortions now in red states than before Dobbs. The shield law issue has not yet reached the Court, but I suspect the Court will stay out of it. And, just this evening, the Court once again copped out on mifepristone.

The court, by an ostensible 7-2 vote, granted a stay of the Fifth Circuit in Danco Laboratories v. Louisiana. There is no explanation at all. I am old enough to remember when the Court's liberals complained that unexplained stays should not be granted. But here, Justices Sotomayor, Kagan, and Jackson dutifully joined the order. As did Justices Gorsuch, Kavanaugh, and Barrett. In 2023, I wrote that Justice Barrett only grants relief on the emergency docket when the Fifth Circuit does something conservative. Well, the trend continues.

Why did the Court grant a stay of the reasoned decision by Judge Duncan?  Was it due to a lack of state standing? Did the Court find that Louisiana is not likely to win on the merits? Perhaps the Court found that Danco prevailed on the equities to distribute a product that is illegal? Who knows? The Court said nothing at all.

Of course, this might be a rare case where all three Trump appointees voted in the exact fashion Trump wanted. The President clearly does not want to block the shipment of mifepristone. He has been very clear on this from the outset. There have been no Comstock Act prosecutions. The FDA has refused to revisit the Biden-era REMS. The FDA didn't even file a brief in this case! Trump was hoping that the Supreme Court would bail him out, and they did.

The only Justices willing to say anything about the matter were Justices Thomas and Alito. Thomas made the obvious point: the distribution of mifepristone is illegal. How can Danco and Genbiopro "be irreparably harmed by a court order that makes it more difficult for them to commit crimes"? Imagine a gun manufacturer sought an injunction to allow the shipment of their products into a blue state, where it was illegal. Does anyone think the equities would tip in favor of those shipping firearms? Of course not. And really, no need to imagine. I represented Defense Distributed, which was enjoined from putting files on the internet that might be downloaded by someone in a blue states. Do you think the federal judge in Washington was troubled that Defense Distributed lost profits? Come on. Get real.

Justice Alito, as usual, said what needed to be said. Blue states are flouting Dobbs and the Supreme Court will do nothing to stop it.

The Court's unreasoned order granting stays in this case is remarkable. What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women's Health Organization, 597 U. S. 215 (2022), which restored the right of each State to decide how to regulate abortions within its borders. Some States responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other States, including Louisiana, made abortion illegal except in narrow circumstances. See, e.g., La. Rev. Stat. Ann. §40.1061 et seq. But Louisiana's efforts have been thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana's and seek to undermine their enforcement.

In the past, Justice Kennedy prevent Louisiana from banning abortions within its borders. Now, the government of New York can impose the same undue burden on state sovereignty. Has anything really changed since Dobbs? Justice Kavanaugh's Dobbs concurrence reached out to decide the issue of whether women could travel from red states to blue states. But he missed the most obvious response: mail order abortions. Why travel when you can get the pills sent through the Postal Service?

As for the equities, Louisiana simply seeks to put Danco in the same position it was before the 2023 REMs. They were profitable under the old regime, and can remain profitable.

I will continue to teach Bruen, SFFA, and Dobbs. But students should know the Justices really didn't mean to enforce any of these rulings.

I think we can soon add Kennedy v. Bremerton to this list. Judge Duncan's opinion for the en banc Fifth Circuit faithfully applied the history and tradition test to the Texas Ten Commandments Law. I think the Chief Justice will write the majority opinion, and hold, "Well, we really didn't mean what we said." As I said above, the casebook changes, but constitutional law remains largely the same.

The post What Do <i>Bruen</i>, <i>Dobbs</i>, and <i>SFFA</i> Have In Common? appeared first on Reason.com.

During the first Trump Administration, the federal courts got a crash course in the Emoluments Clauses. Shortly after Trump was sworn in, progressive groups brought suit in New York, Maryland, and the District of Columbia. They argued that foreign and state governments that patronized Trump properties were giving unconstitutional emoluments to President Trump. Seth Barrett Tillman and I filed a host of amicus briefs at the District Court, Circuit Court, and Supreme Court level. However, the plaintiffs never sought a preliminary injunction or any sort of expedited relief. Indeed, despite the fact that they claimed these cases were urgent and the fate of the Republic turned on stoping this foreign influence, the plaintiffs repeatedly requested extensions and continuances. At the end of the day, the clock ran out. By the time the case made it to the Supreme Court's merits docket, Trump was out of office, and the cases ended with a whimper.

Since Trump's second term began, I have waited with bated breath for suits based on the Emoluments Clause, as well as Section 3 of the Fourteenth Amendment, our other scholarly interest. But nothing came. Zero. Zip. Nada. I suppose the legal resistance has bigger fish to fry with all the strategic litigation in the First Circuit.

Well, the Emoluments Clause is back. The Constitutional Accountability Center, which brought litigation during Trump 1.0, has sued President Trump for violating the Domestic Emoluments Clause. This case, however, does not concern businesses patronizing any current Trump property. Instead, the complaint alleges that the Miami-Dade Community College and the state of Florida granted Trump an unconstitutional emolument by gifting land in Downtown to be used for the Trump Presidential library. President Trump is the defendant, as well as the Trump Presidential Library, Governor DeSantis, Attorney General Uthmeier, and a host of other state officials.

In 2017, the Constitutional Accountability Center filed suit on behalf of Senator Blumenthal and other members of Congress. That theory of standing was doomed to fail. Nine years later, the Constitutional Accountability Center invoke another theory of standing that is doomed to fail.

Who are the plaintiffs in this case? There are two individuals who live near the planned location of the library in downtown Miami. They complain that the tower will block their view of Biscayne Bay, increase traffic, diminish their "quality of life," and reduce the value of their property.

Another plaintiff is Sistrunk Seeds, also known as Dunn's Farm, which wants to operate an "urban farm" in downtown  Miami. Dunn claims that it had worked with Miami Dade College in the past, and wanted to build a farm across the street from Biscayne Bay, but can't because the land was given to the library. There does not appear to be any contract or binding agreement--simply an expectation to have future discussions. The complaint admits as much: "The longstanding partnership between MDC and Dr. Dunn demonstrates that, at a minimum, MDC would have seriously considered Dunn's Farm's request for the land." The farm also claims a "diversion of resources" theory of standing.

Finally, there is a student at Miami Dade College who wants to work on the non-existent farm. The complaint states, "The emolument at issue has quashed Ms. Salcedo's opportunity to learn urban farming and nonprofit management skills on campus for academic credit." Maybe she can claim standing based on some magical beans that could grow into a beanstalk as tall as the new Trump library?

On January 22, 2017, I wrote an early blog post critical of the theory of standing in CREW v. Trump. I was met with a swift reply by Laurence Tribe. Let's see if anyone jumps on board this case.

Apart from standing, the Plaintiffs have a host of other jurisdictional hurdles. There is no cause of action. They are not within the zone of interest of the Domestic Emoluments Clause. They sued the President in his official capacity. And more. Plus the transfer of land is not an emolument. Seth and I have written on this topic.

As of yet, the plaintiffs have not sought a preliminary injunction. As they say, the process is the punishment.

These claims will not succeed, but there is a cost of losing, should this case ever make it upstairs. I can see six votes on the Supreme Court to kill diversion of resource standing, hold there is no implied cause of action for alleged violations of the Constitution, and eliminate any sort of "offended observer" standing based on seeing things that bother you. The plaintiffs here can radically set back civil rights law, all in a case that is doomed from the start. Wouldn't it be better to never bring this case in the first place? Plus, the plaintiffs filed in unfamiliar territory. They will not be protected by jurists like Peter Messitte and Emmet Sullivan, with appeals to the friendly Fourth and D.C. Circuits. I question the wisdom of this suit.

The post The Domestic Emoluments Clause Returns To The Trump Presidential Library in Miami appeared first on Reason.com.

Earlier this week, I did a talk at Unitelma Sapienza University in Rome on "Threats to Liberal Democracy in the United States - And How to Counter Them."  The talk was followed by commentary from three Italian scholars: Prof. Carla Bassu (University of Sassari), Prof. Giovanna Tieghi (University of Padua), and Prof. Andrea Fiorentino (Unitelma Sapienza), and my response. Prof. Pier Luigi Petrillo (Unitelma Sapienza) moderated. I also did an interview on related topics for Unitelma Sapienza's "Leaders' Talk" program. The interview was conducted by  Prof. Petrillo and Prof. Fiorentino.

The talk and the interview covered a lot of ground, including what we mean by "liberal democracy," abuse of emergency powers, the perils of nationalism, threats to freedom of speech, immigration, tariffs, and more. I also discussed the relevance of many of these issues to European nations, as well as the US. Below are links to the videos for both events. First the talk:

And now the interview:

Many thanks to Prof. Petrillo and others at Unitelma Sapienza for organizing these two events!

The post Unitelma Sapienza University Talk and Interview About "Threats to Liberal Democracy in the United States - And How To Counter Them" appeared first on Reason.com.

I'm very happy to post a draft of a new article, "Popular Conceptions of Fourth Amendment Curtilage," written together with my co-author Matthew Kugler, forthcoming in the Michigan Law Review.

The article picks up an idea I first pondered here at the Volokh Conspiracy back in 2018. The Supreme Court interprets the Fourth Amendment to extend the privacy of the home beyond the home's walls to an outside space it calls "curtilage," and it insists that what counts as curtilage, and the implied license to enter it, is intuitive and widely known. But is it? What do ordinary people really think about curtilage and implied license?

Here's the abstract of our new article:

Fourth Amendment protections outside depend on a legal concept called "curtilage." Entering the curtilage of a property normally requires a warrant unless the entry is within an implied license. According to the Supreme Court, the boundaries of curtilage and implied license are found largely in prevailing social norms—what the Court calls "the habits of the country." Judges tasked with applying curtilage doctrine are supposed to intuit these shared attitudes to determine what the police can and cannot do. But there is something missing: No one has ever asked the public what they think.

This Article presents the results of three empirical studies, involving 600 participants each, in which members of the public were asked what places count as curtilage and what visits to homes are covered by implied license. In the first two studies, survey participants were shown a series of images of various properties with an officer present and answered whether the officer was inside or outside the curtilage. In the third study, participants were given a set of home-visit scenarios and answered whether each visit was within or outside the implied license. The surveys covered the facts of both Supreme Court cases and prominent lower court decisions to see if the courts have it right.

We found that the courts have curtilage wrong but implied license right. In the doctrine, curtilage is limited to the area immediately around the home. But the public disagrees. To most people, privacy in the home extends to the entire property. If it's part of the property, it's private. In short, the public has a far more expansive conception of home privacy than courts allow. On the other hand, public perceptions of implied license very closely align with the caselaw. Courts have misunderstood curtilage, but they have accurately described the implied license. Going forward, Fourth Amendment law should change: Courts should either justify current curtilage protection on different rationales or else expand the curtilage line to match public opinion.

This is just a draft, so comments are very welcome.

The post New Draft Article: "Popular Conceptions of Fourth Amendment Curtilage" appeared first on Reason.com.

There has never been an economic shock in modern American history like the one the leaders of the AI industry are telling us is coming. Dario Amodei has warned of "unusually painful" labor impacts "bigger than any before," predicting that AI could eliminate half of all entry-level white-collar jobs and push unemployment to 10–20 percent within five years. He is hardly alone. Both OpenAI and Anthropic have begun laying out, in expansive policy memos, the kind of social contract they say the post-AGI economy will demand, with proposals for shorter working weeks, public wealth funds, and a completely modernized taxation system. The abundance is coming, they tell us, and they would like to help us figure out how to share it.

Can the tech industry successfully pre-empt American populism, sketching the post-AGI social contract before the public has even decided it wants one, and before we even know if speculator growth and job displacement is actually coming? My answer, after months working with my coding agents to pore over polling data, policy proposals, and historical parallels, is that it cannot.

In the scenario the labs are sketching, the politics of AGI will be the politics of jobless prosperity. And this makes it hard to forecast well. The economy will be growing rapidly even as jobs disappear, more like the Industrial Revolution or the China Shock than a normal recession, with mass disruption alongside the explosive enrichment of a small class of elites at the top.

Voters in this world will not be anxious about a shrinking economy but furious about being shut out of a booming one, and they may well stop the boom from arriving at all. Jasmine Sun has documented how this anxiety is already curdling into nascent political anger, observing that "the anti-elite and nihilistic attitudes that have dominated US political culture in the last few years are transmuting into anger at AI billionaires." Alex Imas, in "What will be scarce?", has made the most careful economic case for taking the underlying disruption seriously, even while laying out why both the short and long-term doomers may be wrong about mass unemployment.

The labs see all of this coming, which is why their policy memos have grown so ambitious. It would be easy to read this as good news, since the parties who would have to pay for redistribution are pre-emptively volunteering to do it.

But it cannot work. First, social contracts tend to get extracted from the powerful by the affected, not handed down from above to a public that has not yet decided what it wants. And second, we don't even know yet what the economic contours of AGI will look like—we don't even really know that it's going to lead to job loss, let alone to massive job loss.

As we fluctuate between promises of catastrophe and abundance, I've come to three conclusions:

1. The backlash to AI isn't here yet. There is anxiety among American voters, but there is no populist backlash yet, because the structural conditions for it have not arrived. Hence, we have a potentially narrow window in which to plan out our response to job loss before it becomes a populist issue.
2. Real backlash will happen if and when job losses pick up steam. The backlash will properly arrive if and when unemployment climbs by two percentage points—I hypothesize—alongside a clear public narrative that AI is to blame. At that point, if we do not have a good inventory of smart policy ideas, we will be overwhelmed with bad populist ones.
3. The labs should focus on measurement, not redistribution. Their best contribution in the window before backlash is the infrastructure that lets society see this transition clearly—usage data, displacement indicators, self-activating triggers—not pre-emptive social contracts that lack credibility and a coalition to enforce them. The eventual bargain is something that affected people should play a direct role in negotiating; the data and tools that can help them negotiate from a position of clear information are what the labs can build now.

The post "The Politics of Jobless Prosperity" appeared first on Reason.com.

The Food and Drug Administration opened an investigation of medical facilities that prescribe "off label" drugs to minors with gender dysphoria. The FDA has not determined if the use of these drugs for these purposes is safe or effective to treat gender dysphoria. The investigation began before the U.S. District Court for the Northern District of Texas. In July 2025, the Assistant Attorney General issued a HIPAA subpoena on Rhode Island Hospital (which includes Brown University Health) to determine if patients received misbranded drugs. The hospital, however, refused to comply with the subpoena.

On April 30, 2026, DOJ filed a petition to enforce the subpoena with the District Court in NDTX. That same day, Chief Judge O'Connor granted the government's petition. He ordered Rhode Island Hospital to provide all records within fourteen days.

On May 6, Rhode Island Hospital filed a notice of appeal to the Fifth Circuit, and the next day filed an emergency motion to stay. Among other arguments, Rhode Island argued that venue was not proper in NDTX. The government countered that venue was proper because there is an active investigation being carried out in NDTX. On May 10, Judge O'Connor denied the motion for an emergency stay. He found that venue was proper:

Second, RIH argues that this Court is not the proper venue to adjudicate the Government's petition.7 Title 18 U.S.C. § 3486(c) permits enforcement of an administrative subpoena in "any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he carries on business or may be found." According to the Declaration from the Acting Director of the Enforcement and Affirmative Litigation Branch there is substantial operational and decision-making control of the investigation being exercised at the U.S. Attorney's Office in the Northern District of Texas, along with several subjects and potential targets of the investigation located therein.8 The record therefore reflects that the investigation is being carried on in the Northern District of Texas and the Government's enforcement petition was properly brought in this Court. Accordingly, RIH has failed to show a likelihood of success on the merits as to its venue challenge.

FN8: 8 See generally Hsiao Declaration (Sealed) Ex. 1, ECF No. 10-1. The Government has presented the Court with ex parte information that supports its choice to enforce the subpoena in this Court and due to the sensitive nature of that information, it was provided ex parte. See In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) (finding no abuse of discretion where the district court relied on the government's ex parte submission in reaching its decision).

That was the litigation in Texas. But there was a parallel track on the other side of the country. On May 4, even before Rhode Island Hospital filed an emergency motion before Judge O'Connor, the Child Advocate for the State of Rhode Island (a non-profit) filed an emergency motion in the District of Rhode Island to quash the subpoena. On May 7, the United States filed a motion to stay or transfer venue. The court immediately denied that motion with a text order. On May 11, the District Court granted Rhode Island Hospital's motion to intervene. The group then filed an emergency motion to quash the subpoena. Judge McElroy ordered the United States to submit the sealed Hsiao declaration.

Back in Texas, on May 11, the United States informed Judge O'Connor that the government intended to comply and provide the sealed Hsiao Declaration. On May 12, Judge O'Connor ordered that the government could not release the sealed information to the parties:

However, the Government now seeks to disclose sensitive information to a party here—but in a seemingly parallel litigation—without having shown why the sealed or protected matters should be provided to it nor how that information would be protected. In fact, the Government's representation that it does not know what protections the information related to the grand jury proceedings or sealed information in the matter pending here will receive in the Rhode Island court cuts against disclosing it. In light of grand jury proceedings' dependency on heightened secrecy, the basis for sealing declarations, and the Government's failure to show that the information that it requests leave to disclose would be protected, the Court would be derelict in its obligation to hew strictly to Rule 6(e)'s exception, and undermine the reasons given for sealing, by granting the Motion as requested. Accordingly, it is ORDERED that the Government is prohibited from revealing any further sealed information or information concerning the grand jury investigation until it can show that "a particularized need" exists for the materials that outweighs the basis for and policy of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959)). The Government shall immediately distribute this Order to all members within or connected to this investigation, notifying them of the prohibitions set out herein and their obligation to comply with them. The Government may distribute a copy of this Order to the Rhode Island court.

But Judge O'Connor allowed the government to share the declaration with Judge McElroy in chambers.

The Court granted the Government's previous motion to disclose information related to the grand jury's existence because the Government specified that such information would be confined to in camera review by the Rhode Island court. That disclosure permitted the Government to disclose to the Rhode Island court that there is a legitimate investigation pending in this district, and responsive documents are due. Indeed, the Court has concluded as such, granted the Government's motion to enforce an administrative subpoena, and is superintending this matter.2 Were Rhode Island Hospital entitled to further sealed or secret information it may always move this Court for such access upon a proper showing.

On May 13, Judge McElroy issued a 24-page opinion granted the motion to quash the subpoena from NDTX and enjoined DOJ from seeking or receiving any documents pursuant to the subpoena. Judge McElroy was apparently shown the materials, but was not persuaded. She did not reference the sealed declaration. Judge McElroy acknowledged her order was completely unprecedented:

The Court is unaware of any similar case where a party has petitioned a court to quash an administrative subpoena that another court ordered enforced without prior notice or opportunity to be heard.

But she did it anyway. Indeed, Judge McElrod took a shot at Judge O'Connor:

The United States Department of Justice ("DOJ") possesses immense prosecutorial authority and discretion. As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary. DOJ has proven unworthy of this trust at every point in this case. It has misrepresented and withheld information to both this Court and the United States District Court for the Northern District of Texas (the "Texas court"). It did so in an obvious effort to shield it's recent investigative tactics—previously rejected by every other court to review them—from this Court's review, in favor of a distant forum that DOJ deems friendly to its political positions.1

FN1: 1 The presiding judge in the Texas court has branded "the Department of Justice, the world's largest law firm" a "frequent forum shopper." Opening Remarks from Judge Reed O'Connor [2024 TX Chapters Conference], The Federalist Society (Oct. 22, 2024), https://www.youtube.com/watch?v=HMTt9pxWBhA [https://perma.cc/GR7A-H6N8]. It is clear that the DOJ has done so here.

I attended Judge O'Connor's speech in 2024. The purpose of his remarks was to show that all litigants engage in forum shopping, including the Biden DOJ. This snippet takes Judge O'Connor's comments out of context. Here are the full remarks:

Just this year, in response to political pressure that named specific judges, the Judicial Conference took aim at single-judge divisions, especially those in Texas. Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges—only judges doing their level best to faithfully apply the law to reach the correct decision.

Notably, the proposal did not target longstanding forum-shopping—or as Judge Jim Ho put it, forum-selling—in bankruptcy courts or patent venues. Such cases impact our economy in the billions of dollars and were recently highlighted only due to an embarrassing scandal. Yet the practice in these areas remain untouched by reform efforts given the absence of comparable political pressure from commentators and political officials.

Instead, the proposal focused entirely on remedies the Department of Justice, the world's largest law firm and regular forum shopper, complained of—that is, injunctions and vacaturs. The reason for this was clear: the Judicial Conference was responding to external political criticism.

It takes some cheek for a District Judge in Rhode Island to accuse others of engaging in forum shopping. I've lost count of the number of anti-Trump actions filed in Boston, Rhode Island, and other places, that have no actual connection to New England, other than the fact that the First Circuit is a very friendly venue. Did Judge McElroy blink twice about why a case called California v. Department of Education was filed in Boston? Or when Judge Boasberg ordered a plane taking off from Texas to turn around? For whatever it is worth, it is far more likely for a nexus to be found in the Northern District of Texas than in Rhode Island. You could fit the entire state of Rhode Island in the DFW Metroplex, and you could fit the city of Providence inside the bounds of the DFW airport.

On May 14, today, Judge O'Connor unsealed his March 12 order, which indicated the materials could be shared with Judge McElroy.

So here we are. A District Court judge in Texas ordered that a subpoena must be complied with. A District Judge in Rhode Island quashed that subpoena. We now have a conflict that cuts to the heart of federal power. Perhaps not since the Dorr Rebellion, which gave rise to Luther v. Borden, has a Rhode Islander thrown such a wrench into our federal system of government. During the first Trump administration, I wrote about the prospect of dueling nationwide injunctions. Now, we have dueling transdistrict fights over transgender subpoenas.

Appeals will be mounted to the Fifth and First Circuits at the same time. I know a bit about this sort of conflict. For some time, I've been involved with litigation concerning Defense Distributed. Since 2018, we have been stuck in a quagmire: the District Court in Austin transferred the case to New Jersey, the Fifth Circuit asked the New Jersey court to return the case, the New Jersey court said no, and the en banc Third Circuit declined to interfere. (Stay tuned on what comes next in this case.)

I suspect the Supreme Court will have to settle this subpoena fight at some point.

Update: I updated the passages concerning the unsealing of materials.

The post Transgender Subpoena Leads To Transdistrict Struggle appeared first on Reason.com.

The Roberts Court is often derided as a pro-corporation Court. I've lost count of how many stories measure the Chamber of Commerce's success rate before the Supreme Court. The reality, however, is different. The Court often leans in a jurisprudential directions that corporations do not like. One leading example is preemption. As a general rule, corporate defendants favor broad preemption to avoid liability from state suits, while plaintiffs favor narrow preemption so they can bring state tort suits. But on the Supreme Court, things do not line up so neatly. Justice Thomas, a federalist, has long been a skeptic of broad preemption. I think Justice Gorsuch is in the same camp. Justice Kavanaugh, and to a lesser extent, Justice Alito, are the strongest votes to find broad preemption. That leaves (as usual) Chief Justice Roberts and Justice Barrett as the decision-makers. Unlike in most cases that are important to conservatives, there is not an automatic conservative majority to find preemption, and indeed, it may be hard to count to five.

I think we have something of an Antipreemption Court.

Consider three preemption cases argued this term.

First, Hencely v. Fluor Corp reversed the Fourth Circuit, and found that federal law did not preempt the state-law tort claim.  Justice Thomas wrote the majority opinion, joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Justice Alito dissented, joined by the Chief Justice and Justice Kavanaugh. As I noted at the time, these votes lined up with how the justices view preemption more generally.

Second, today the Court decided Montgomery v. Caribe Transport II, LLC. Here, the Court unanimously found that federal law did not preempt a state-law tort claim against transportation brokers. Justice Barrett wrote a delightful majority opinion. In only a few pages, she briskly walked through all the statutory arguments. She was confronted with an anomaly raised by the government, and responded: "The text of subsection (c)(2)(A) controls. Better to live with the mystery than to rewrite the statute." Amen.

Justice Kavanaugh wrote a concurrence joined by Justice Alito, finding that the preemption analysis is harder than the majority suggests. Ultimately Kavanaugh writes that Congress and the President can fix any problems.

The brokers and their amici raise serious concerns about the repercussions of state tort liability against brokers, and they may of course (among other possibilities) ask Congress and the President to change federal law.

That worked for Lilly Ledbetter! Still, the case was unanimous. Paul Clement, who argued Montgomery, usually does not lose 9-0. But the GOAT didn't get a single vote here.  [Update: Clement represented the Petitioner, and not the Respondent in this case. I got it completely backwards. He won 9-0. My apologies to the GOAT.]

The third preemption case, Monsanto Company v. Durnell, was also argued by Paul Clement. And if Hencely and Montgomery are any indication, I think Clement may lose this one. It won't be unanimous, but it may be 5-4 or even 6-3 for the plaintiffs. I wrote about Monsanto here and here. The Justices, even the conservative ones, are not going to engage in any creative reading of statutes to preempt federal law--even if the consequences are catastrophic. The answer will be, as Justice Kavanaugh suggested, for Congress to address the situation.

The post The Antipreemption Court appeared first on Reason.com.