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Defendant Donald J. Trump, President of the United States, moved for leave to file a second notice of removal. I denied his motion, but the Court of Appeals vacated and remanded and, on remand, I was directed to consider (1) whether then former President Trump demonstrated good cause for filing an untimely notice of removal after the Supreme Court issued its decision in Trump v. United States (2024), and diligently sought removal; (2) whether removal under 28 U.S.C. §§ 1442(a)(1) and 1455(b)(1) is available at this stage of the state court proceedings; and (3) whether Trump's prosecution is for or relating to an act under color of federal office and whether he raises a colorable federal defense.

To remind people of the prosecution:

On March 30, 2023, a New York State grand jury indicted then former President Donald Trump on thirty-four counts of falsifying business records in the First Degree in violation of N.Y. Penal Law § 175.10…. The New York County District Attorney's Office (the "People") alleged that from August 2015 to December 2017, Trump orchestrated a scheme with others to influence the 2016 presidential election, by suppressing negative information about him to benefit his electoral prospects.

As a part of this scheme, the People alleged that, at Trump's request, a lawyer who worked for the Trump Organization as Special Counsel to Trump, Michael Cohen, "covertly paid $130,000 to an adult film actress shortly before the election to prevent her from publicizing a sexual encounter with" Trump. Cohen, following Trump's instructions, proceeded to pay the adult film star, Stephanie Clifford (aka Stormy Daniels), using a shell corporation. After the election Trump reimbursed Cohen, disguising each check "as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement." …

On December 16, 2024, the New York Supreme Court denied Trump's motion to dismiss the indictment and vacate the jury's verdict, filed in light of Trump v. United States. On January 10, 2025, the N.Y. Supreme Court sentenced Trump to unconditional discharge, and entered judgment. Trump's appeal to the Appellate Division, First Department, is pending….

Those who want to know more about removal, timeliness, presidential immunity, and more need to read the opinion.

The post Federal Judge Concludes Then-Candidate Trump's Attempt to Remove N.Y. Hush Money Non-Reporting Prosecution to Federal Court Came Too Late appeared first on Reason.com.

Yesterday, a divided Ninth Circuit handed down Richards v. Newsom, rejecting a facial challenge to a California law, California Penal Code Section 26806, which requires federally licensed firearms dealers to maintain digital recording systems on their business premises.  The law was challenged on First Amendment, Fourth Amendment, and Fifth Amendment grounds.  I wanted to focus on the Fourth Amendment issues in this post, as I'm not sure the majority's reasoning was right.

I hadn't heard of this law until yesterday, so my apologies if I'm getting the details wrong.  But as I understand it, the law requires federally licensed firearms dealers (which I'll just call "gun shops" for short, if that's not too inaccurate) to have 24/7 video surveillance of "interior views of all entries or exits to the premises, [a]ll areas where firearms are displayed[, and] all points of sale, sufficient to identify the parties involved in the transaction."  They have to store the video for at least a year, and agree to turn over video records in response to a search warrant or other court order.

From a Fourth Amendment perspective, this is a hard law school exam question.  For starters, you have to figure out what to make of the order to have the system. Is the requirement of installation and use (to the extent a particular shop doesn't already have such a system) forcing the gun shop owner to act as a state actor, installing the device?   If so, what exactly is searched, and whose interests are implicated— those of the gun store owner, or the customers and others in the gun store?  Does this fall within the famously murky record-keeping framework of California Bankers Association v. Schultz, or is it more like an order to compel records as in Carpenter or Chatrie?

But wait, there's more. Under Maryland v. Macon, there's no reasonable expectation of privacy in a store open to the public, but here the surveillance is 24/7, and you don't know what might get recorded after work hours.  So would there be Fourth Amendment rights in the video itself, or would it depend on which time window of video the government later tries to compel?  And which of these issues can be addressed in a facial challenge, and how might the closely regulated industries exception apply or not apply, under City of Los Angeles v. Patel?

I don't have time for a long post to do the case justice, unfortunately.  But here's one part I want flag that strikes me as at the very least incomplete, if not likely wrong: The state action analysis.  At one point in the case, the panel discusses the plaintiffs' argument that the law made gun shops state actors under the Fourth Amendment.  Here's what the court says:

Unable to articulate any physical intrusion or actual access of audiovisual recordings by the government, Plaintiffs instead argue that Section 26806 transforms FFLs into state actors for purposes of the Fourth Amendment. To support this argument, Plaintiffs argue that they satisfy three tests discussed in Brunette v. Humane Society of Ventura County for determining when a private party has engaged in state action under 42 U.S.C. § 1983: (1) the "joint action" test, (2) the "symbiotic relationship" test, and (3) the "public functions" test. See 294 F.3d 1205, 1210 (9th Cir. 2002). Again, we disagree.

This seems odd.

First, Fourth Amendment state action is generally an agency test that looks at whether the private party was acting as the government's agent, which in turn looks to knowledge, acquiescence, and the like.   The Ninth Circuit has sometimes instead in Fourth Amendment cases tried to summarize state action analysis from outside Fourth Amendment law, which is what the panel is doing here, and was doing in Brunette.  But even if you try to apply the different "tests" from outside Fourth Amendment law, the 2002 Brunette case did not purport to provide a comprehensive list of theories of state action.

Of particular relevance, Brunette did not ask the court to consider the "state compulsion" test.  As the court put it in Children's Health Defense v. Meta Platforms, quoting Supreme Court caselaw:

As we have explained, the Supreme Court has identified four tests for when a private party "may fairly be said to be a state actor": (1) the public function test, (2) the joint action test, (3) the state compulsion test, and (4) the nexus test. Lugar, 457 U.S. at 937, 939, 102 S.Ct. 2744.

The Supreme Court in Lugar rooted this test in Adickes v. SH Kress & Co., which held that a restaurant would be a state actor if it refused service to a customer because of a state-enforced custom of segregating the races in public restaurants. Adickes noted:

For state action purposes it makes no difference of course whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law—in either case it is the State that has commanded the result by its law.

I wonder, why isn't a gun shop turned into a state actor by a statutory provision requiring action under this state compulsion test?  Maybe the resulting act wasn't a search or seizure, and maybe it's not an issue that can be address in a facial challenge.  But I'm not sure why whatever action is compelled wouldn't be state action.

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

New case! IJ clients Charles and Eli Copley own 50 wooded acres in Roxbury, Conn., where they've always welcomed hikers for a small hourly fee, an absolutely harmless use that is not visible to the neighbors. But the town says that might violate the zoning code—just not any part of the code that is written down—and the Copleys haven't been able to have any hikers for a year. Outrageous! Click here to learn more.

New on the Short Circuit podcast: Our #12Months12Circuits series makes it to the Eighth. There's irreparable harm and contractor speech.

1. Today in news you can use: Check your prospective interns' resumes and references! A Project Veritas undercover journalist fabricated a false identity to infiltrate a Democratic political consulting firm, and some of her recorded material was used in an embarrassing series of YouTube videos that caused major clients to ditch the firm. Firm sues reporters and wins a big verdict. D.C. Circuit (over a partial dissent): While her fraudulent actions may have been tortious, most of the videos were fully protected by the First Amendment, so the jury's award here must be overturned because it didn't specifically tie damages to the fraudulently procured aspects.
2. New Hampshire parents (and a grandparent) are barred from school property after wearing pink wristbands at high school soccer game in protest of a trans player on the visiting team. First Circuit: Seems like a First Amendment problem.
3. Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. First, Second, Sixth, Seventh, Ninth, Tenth, Eleventh, and now Third circuits: No.
4. If you've been sued and are worried you've waived your rights to invoke arbitration against putative class members, rest assured the Third Circuit says you'll be OK even if you wait 55 months. And the Third Circuit also says if you've taken some depositions first, no worries, arbitration can still be on like Donkey Kong.
5. During an oversight visit to a federal immigration facility, N.J. congresswoman has a confrontation with federal officials. She's later charged with assaulting, resisting, or impeding a federal officer. She claims immunity under the Speech and Debate Clause and alleges vindictive prosecution. Third Circuit: She loses on two of the counts against her and we remand on the third. Dissent: Sure seems like she's being treated worse than Jan. 6 defendants.
6. Federal political candidates are entitled to buy broadcast advertising time at the "lowest unit cost." The FCC issues a public notice that political parties and joint fundraising committees enjoy the same right. Democratic candidates sue. Fourth Circuit: We invalidate the public notice. Dissent: "I would not neuter a federal agency and seize imaginary jurisdiction only to disfavor the place of political parties in our democratic dialogue and to dampen the vigor of pre-election political speech."
7. North Carolina woman, originally from Mexico but who has lived in the U.S. since childhood, was convicted in state court in 2006 on marijuana charges. The feds later try to deport her. Meanwhile, the state court vacates her conviction (the sentence for which she had completed). Feds: A vacated sentence still qualifies for deportation. Fourth Circuit: Well, under Chevron you'd be right, given your rules. But without deference to you, we think your reading of the statute is wrong.
8. Allegation: Woman peacefully protests fatal police shooting by grilling hot dogs and hamburgers outside Lafayette, La. mayor's house. She is arrested for obstructing the roadway, which she wasn't, and strip searched at jail. Unlawful retaliation for speech? Unconstitutional arrest without probable cause? Fifth Circuit: Qualified immunity. Dissent: Qualified immunity is made up and wrong, and also it doesn't apply here.
9. Fifth Circuit: "As we understand the operation of the internet exoterically, it consists of websites and links that are, in the truest sense, embedded in our everyday life. But this appeal turns on the esoteric. We must understand the innerworkings of this technology to comprehend how another framework—that of copyright law—can be superimposed on it."
10. Student visiting Michigan court as part of a vocational program falls asleep while judge is giving career advice. Yikes! The judge has her locked up for several hours and then puts her on fake trial. She sues. Judge: The "trial" may have been fake, but I am a real judge entitled to real judicial immunity. Sixth Circuit: We'll give you points for chutzpah, but not immunity.
11. With a little help from friends, family, and caregivers, quadriplegic woman has been by all accounts a very capable surrogate mother to various children, including her niece and nephew, as well as to the occasional child-welfare placement. Sixth Circuit: But Michigan did not engage in disability discrimination in rejecting her application to be a foster mom. Indeed, the state says she can even reapply at some point, which hardly reeks of animus.
12. When ninth grader is suspended for fighting, a Macomb County, Mich. school police officer tells him, falsely, that there's a new three-strikes law and he's one strike away from being expelled and imprisoned. Distraught, the student flees school on foot and commits suicide several hours later. Sixth Circuit: An unspeakable tragedy. However, …
13. Is possessing virtual, AI-generated child sexual abuse material in the privacy of the home protected by the First Amendment? Seventh Circuit: Under binding precedent, yeah, it seems to be protected. Two-judge concurrence: Perhaps SCOTUS should give a fresh look-see to its early-aughts precedent on this subject.
14. In which the Eighth Circuit holds that Fargo, N.D.'s definition of "adult bookstore" isn't unconstitutionally vague but also doesn't cover a sexually oriented shop whose offerings are, ahem, less literary in nature.
15. Arkansas sex offender serves most of his 30-year-sentence, is granted parole, and seeks to live on property owned by family trust. Yikes! His parole officer fabricates a nonexistent daycare nearby and bars him from living there—a situation that other officials, apprised of the lie, do not remedy. A due-process violation? Eighth Circuit: There is no constitutional right to early release, so no.
16. Can California require that businesses mount video cameras that run 24/7 and capture audio inside their premises and also be subject to warrantless inspections, even if operating from the owner's home? Ninth Circuit: If they're selling guns, absolutely! Dissent: Didn't we adopt a few constitutional amendments that might apply to this?
17. In 1967, Congress investigated the communications failures that led to Israeli forces attacking the U.S.S. Liberty, killing 34 sailors. The resulting report—now in the hands of the NSA—has never been publicly released. Ninth Circuit: And unreleased it shall stay. The Freedom of Information Act requires disclosure of certain agency records, but the report is a congressional record, notwithstanding the NSA having a "purloined" copy.
18. In a class-action settlement where the class numbered an estimated 247 million Americans, Google coughs up $62 mil. None of the money will go to the class members. Instead, it's intended for organizations that the parties assert do good works and deeds. Some class members object and say not giving the money to the actual class members seems wrong. Ninth Circuit: It would be hard to do that, so this is close enough. Dissent: Pardon my Norman French.
19. In which your humble editor is pleased to note that a San Francisco man convicted after firing a gun in the air outside a bar was apprehended by … Officer Frisk! Ninth Circuit (over a dissent): The district court needs to reconsider the man's 45-month sentence, this time without suggesting that his decision to exercise his constitutional right to trial, etc., indicates a lack of contrition.
20. Sweeping executive order imposes after-the-fact conditions on federal grants from HUD and DOT. Local governments challenge the conditions and a district court enjoins them. Ninth Circuit: Almost entirely affirmed. Dissent: "In the end, this is yet another instance of courts confronting a question of "who decides" and choosing wrong."
21. Eleventh Circuit: "What began with a disgruntled ex-contractor interfering with the jumbotrons in the middle of several NFL games turned out to be much more—a case about child pornography possession and production, unlawful possession of a firearm, sex-offender registration obligations, and of course, computer hacking."
22. You could read this whole Eleventh Circuit opinion about Miami-Dade commissioners allegedly using police to settle personal and political scores and then firing the police chief, who, in his capacity as a private citizen, objected. Or you could "ctrl-f" for "Elvis," "tight pants," and "The Godfather," which are not fun pop culture references but real things from the case. Qualified and legislative immunity for the commissioners denied!
23. And in en banc news, the Eleventh Circuit will reconsider its precedent that sneaks the Federal Tort Claims Act's discretionary-function exception into the Suits in Admiralty Act, a different law that contains no such exception. Which is good news for these two boaters who crashed into an unmarked duck blind and who would like to sue the feds under the SAA.

Victory! For years, Humboldt County, Calif. officials abused their code-enforcement powers and fined property owners exorbitant, unpayable sums for cannabis-related violations—without a care as to whether anyone actually grew cannabis. When people sought to contest those fines, the county endlessly delayed holding hearings, even as the $30k-per-day fines continued to accrue. For instance, IJ client Blu Graham requested a hearing to show that his greenhouse contained vegetables, not cannabis, and he was kept waiting over four and a half years (and, in fact, only got a hearing as we were preparing to file suit). In 2024, the Ninth Circuit said all that did indeed raise some concerns. And after we started deposing officials, the county decided to settle, agreeing to make our clients whole and to respect the Constitution going forward. Click here to learn more.

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This case begins with a viral video. Plaintiff Danesh Noshirvan is a citizen journalist who built a social media following by exposing bad behavior in public spaces. In January 2022, he posted a video of Defendant Jennifer Couture confronting a young woman in a Dunkin Donuts parking lot. The video caught fire, resulting in criminal charges for Couture and public backlash. Couture and her now-husband, Defendant Dr. Ralph Garramone, allegedly decided to get even.

According to Noshirvan, Couture and Garramone—acting individually and through Garramone's various business entities—hired a convicted computer hacker named Joseph Camp to retaliate. Camp, in turn, connected the couple with Defendant Patrick Trainor, a New Jersey lawyer who operates the Anti-Doxing League. What followed, Noshirvan alleges, was a retaliatory conspiracy by these defendants to systematically destroy his life and livelihood.

Trainor responded to Noshirvan's lawsuit with counterclaims for defamation and civil conspiracy. According to Trainor, Noshirvan used his social media account to falsely brand Trainor as a "Nazi," a "White supremacist," and a "pedophile."

Trainor also alleges that Noshirvan enlisted two non-parties—James McGibney (who runs the account @bullyville) and an anonymous user known as @credibleintel—to amplify the smear campaign and republish the offending statements. Noshirvan then allegedly weaponized these posts to file bogus complaints against Trainor with state and federal law enforcement, as well as the New Jersey Office of Attorney Ethics. …

The conflict with Trainor ignited in January 2024, when McGibney emailed Trainor to accuse him of misrepresenting facts to a court. That private dispute quickly spilled onto the internet. Between February 2024 and 2025, Noshirvan, McGibney, and @credibleintel unleashed a barrage of social media posts targeting Trainor. The publications accused him of harassment, professional misconduct, conspiring with a fugitive, and being a Neo-Nazi and pedophile. According to Trainor, the offending posts remain publicly visible today….

The court threw out Trainor's claims against Noshirvan, concluding:

Trainor cannot defeat summary judgment with a patchwork of stale claims, non-actionable opinions, and a conspiracy theory lacking an actual agreement. Yet that is all he offers. Trainor has failed to muster the specific facts necessary to show a conspiratorial agreement between Noshirvan and his associates. Strip away the conspiracy framework, and Trainor's defamation case reduces to statements that are either time-barred or constitutionally protected hyperbole.

The court concluded that defamation claims based on statements from before July 30, 2024 are barred by New Jersey's one-year defamation statute of limitations. The court also rejected Trainor's civil conspiracy claims, as well as Trainor's attempt to hold Noshirvan liable for McGibney's claims:

Viewing the documents cited by Trainor that he contends evidence a conspiracy between Noshirvan and McGibney, no reasonable jury could find an agreement to defame. Trainor's first document reflects McGibney offering to post about Noshirvan's lawsuit on two social media accounts "couture.camp" and "bullyville"—nothing more. Other communications between Noshirvan and McGibney are either too temporally disjunctive from the underlying conspiracy, do not relate to any conspiracy at all, or discuss a motion filed by Trainor or a drafted filing rather than the alleged defamatory posts. Through no stretch of the imagination could a reasonable jury conclude Noshirvan, McGibney, and @credibleintel entered an agreement to defame Trainor based on these documents.

And the court concluded that the post-July 30, 2024 statement by Noshirvan is not actionable:

The post features a screenshot of Senator Dick Durbin questioning [Kash] Patel about his appearances on a podcast whose host "promotes conspiracy theories and worked with a neo-Nazi." Below the exchange, a caption reads, "Sounds like Patrick Trainor." Trainor insists this post is actionable because it effectively brands him a neo-Nazi.

But rhetorical hyperbole and name-calling do not amount to defamation. Under New Jersey law, a general statement accusing someone of bias is an opinion. Instead, there must be some other "reasonably specific facts that are capable of objective proof of truth or falsity." Generalized accusations of bigotry or extreme bias—without a tether to specific, verifiable facts—are protected opinions. Gomez Noriega v. City of Jersey City (D.N.J. 2025) (statement that the plaintiffs "hate Jews" was not actionable as defamation); Jorjani v. New Jersey Inst. of Tech. (D.N.J. 2019) ("[C]alling someone a racist, hater, or bigot—without more—will not result in defamation liability[.]"). Noshirvan's snarky caption is a textbook example of a non-actionable, rhetorical comparison….

Nicholas A. Chiappetta (Chiappetta Trial Lawyers) represents Noshirvan.

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Bloomberg News (Jordan Fischer) seems to have broken the story. Culver is also accused of impersonating an NSA agent, a Supreme Court Special Master, and "the Director of Tailored Access Operations ('TAO'), a purported intelligence agency."

Here are the docket entries that apparently reflect the filing of the purported Chief Justice order:

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This case arises from three incidents that occurred on three separate days in March and May of 2024 during demonstrations in front of the Israeli embassy….

Ms. Rokhvand and Ms. Barmada were engaged in a multi-month demonstration in front of the Israeli Embassy in Washington, D.C. in protest of Israel's recent military actions in Gaza…. The protesters used a designated area outside the embassy to set up their display of flags, tents, and signs and to engage in "noise demonstrations," during which they spoke into megaphones, played Palestinian music, or used noise machines. They displayed large signs with messages against Israel's military actions in Gaza, as well as a sign offering earplugs to passersby, along the sidewalk.

Rabbi Herzfeld is the rabbi of a Washington, D.C. congregation and the founder and leader of a Jewish school. During his tenure in D.C., Rabbi Herzfeld has been involved in the wider community and worked with other local faith leaders and elected officials. Rabbi Herzfeld has close relationships with family and friends in Israel and was "devastat[ed]" by the October 7, 2023, Hamas attack on Israel. Rabbi Herzfeld did not know of Ms. Barmada or Ms. Rokhvand before his interactions with them at the Israeli embassy. Likewise, neither Ms. Barmada nor Ms. Rokhvand had heard of or met Rabbi Herzfeld before their interactions with him during the embassy demonstrations.

The first incident occurred in the middle of the day while Ms. Barmada and a few other protesters, not including Ms. Rokhvand, were at the protest site. According to Ms. Barmada, a group of men including Rabbi Herzfeld approached the protest site and began slowly walking through the demonstration and "intensely … looking around." Ms. Barmada heard Rabbi Herzfeld call her a "Hamas supporter" and a "terrorist" who supported "raping women" and "beheading babies." Another man in the group called Ms. Barmada a "Nazi bitch" and said that she should "go to the concentration camp."

Rabbi Herzfeld began speaking about the protesters, pointing at Ms. Barmada and referring to the protesters as the "wicked people" that "we will defeat." The group of men again approached the protesters and walked back and forth in front of them, during which time Ms. Barmada and Rabbi Herzfeld exchanged a couple of remarks and Rabbi Herzfeld took something out of his pocket and stood near Ms. Barmada with his group. Ms. Barmada perceived the interaction to be a threat designed to "intimidate" her. She felt "scared" and "harassed" and that the incident was "violating."

Rabbi Herzfeld testified that the first incident occurred on a Jewish holy day commemorating the biblical story of Esther, a Queen who saved the Jewish people from annihilation. Rabbi Herzfeld went to the embassy to pray for the hostages held by Hamas in Gaza. He and a few others arrived to a "surreal scene" of people "shouting all sorts of terrible things." As the group was walking through the protest, Ms. Barmada spoke into a megaphone and accused the group of "celebrating terror" and being "proud of terrorizing children."

Rabbi Herzfeld did not call Ms. Barmada a name and did not ask anyone he was with to do so. Rabbi Herzfeld had to yell in order to speak to the group he was with, because the protesters spoke into megaphones while Rabbi Herzfeld was speaking. He spoke about the protesters being akin to the supporters of the king in the story of Esther, because the protesters did not want Israel to defend itself from attacks by Hamas. Rabbi Herzfeld took out a prayer book but was "not able to concentrate properly" due to the protesters' noise.

Rabbi Herzfeld filed a lawsuit against Ms. Rokhvand and Ms. Barmada in federal court related to the first incident, claiming that the protesters had assaulted him and caused him a noise injury. He did an interview with Fox News about the lawsuit, during which he characterized the incident as part of a "dangerous trend" of "targeting Jews, attacking Jews."

The press coverage regarding the lawsuit made Ms. Rokhvand "very terrified." Ms. Rokhvand was concerned because her full name had been publicly associated with claims that she was "doing things … against Jewish people which weren't true" on a day that she was not even present at the embassy. Ms. Rokhvand believed that the suit and the resulting press coverage had "put a target on [her] back" as a pro-Palestinian activist.

The second incident took place over a month later, the day after Ms. Barmada and Ms. Rokhvand were served in Rabbi Herzfeld's federal lawsuit. According to Ms. Barmada, a car approached the protest site, moving very slowly even though no other cars were on the road. Ms. Barmada saw a man in the passenger seat staring "intensely" out the window at her with "a very taunting look." Ms. Barmada was "alarmed" by the situation and then "felt panicked" once she recognized the man in the car as Rabbi Herzfeld. Ms. Rokhvand also saw these things, which made Ms. Rokhvand "very concerned."

Rabbi Herzfeld then rolled down the window of the car with an "eerie smile on his face" and said, "How come you support people raping innocent women?" Rabbi Herzfeld then rolled up his window, and the car continued down the street. The interaction made Ms. Barmada feel like she was being "harassed" and "watched and monitored."

According to Rabbi Herzfeld, he did not know that Ms. Barmada or Ms. Rokhvand were at the protest site when he asked his driver to slow down so that he could read the protesters' signs. Rabbi Herzfeld never went to the embassy "with the understanding" that either Ms. Barmada or Ms. Rokhvand would be there. Rabbi Herzfeld asked the protesters if they supported raping innocent women because he had recently watched a movie about the "weaponization of sexual assault" on October 7th.

The third incident took place later that week, again during the day at the protest site. According to Ms. Rokhvand and Ms. Barmada, Rabbi Herzfeld and a couple of other men arrived and walked through the demonstration, while Rabbi Herzfeld loudly requested that one of the people with him take pictures of the posters and items at the site, including the container of earplugs. Ms. Rokhvand made a "frantic phone call" to Ms. Barmada, who had stepped away from the demonstration, because she was "scared and worried" about Rabbi Herzfeld's presence.

Ms. Rokhvand saw Rabbi Herzfeld speaking with his companions while looking and pointing at her, and she began recording the group on her phone. Immediately after, one of the men approached Ms. Rokhvand with his phone raised and got very close to her, stating among other things that it was "very interesting the fear you are showing here" and that it seemed she did not want to show her face. The man put his face right up against Ms. Rokhvand's phone camera, stating "see I'll show my face to you" and "I'll go to take a look and find out who you guys really are." The man then returned to where Rabbi Herzfeld was standing across the street and gestured back toward Ms. Rokhvand. After the interaction with the man, Ms. Rokhvand called Ms. Barmada and told her that the men made "threatening" comments.

According to Rabbi Herzfeld, he went to the embassy to do a press conference about his federal lawsuit. Rabbi Herzfeld approached the protest to look at the signs, but he did not "go through anyone's stuff." Rabbi Herzfeld moved on to the embassy. Rabbi Herzfeld said that he did not encourage, instruct, or prompt the man who approached Ms. Rokhvand. Rabbi Herzfeld "had no interest in any interaction with [Ms. Rokhvand] that day."

Ms. Barmada implemented security measures after the incidents with Rabbi Herzfeld, including a buddy system for the protesters and additional security cameras at her home. Ms. Rokhvand also installed a security system in her home and taught her children to be alert for Rabbi Herzfeld and the man who had approached her during the third incident….

Barmada and Rokhvand sought anti-stalking orders against Herzfeld, but the court affirmed the denial of their petitions, concluding that Herzfeld's conduct wasn't a constitutionally unprotected true threat:

The trial court found that there were no explicit "threat[s] to do bodily harm" made during the incidents, and the record supports that finding. The trial court acknowledged that "there[ were] nasty comments" made in which Rabbi Herzfeld "basically … suggest[ed] [that] people who are at the protest are people who support bad conduct" and said that "these are the wicked people; we will defeat them."

With regard to the first incident, during which Rabbi Herzfeld referred to the protesters as "wicked people" who would be defeated, the trial court found that Rabbi Herzfeld was not directing his speech specifically at Ms. Barmada (or Ms. Rokhvand, who was not present). Regarding the second incident, in which Rabbi Herzfeld asked why the protesters supported rape, the trial court found that it was "the kind of provocative comment that people make at protests," even though the question would be upsetting. The above findings are supported by the video record and testimony in the case, and we do not understand Ms. Rokhvand and Ms. Barmada to specifically contest them.

As the trial court concluded, these "nasty comments" in the context of a public protest were not threats and are "exactly the kind of things that are constitutionally protected." … Even speech that, if taken literally, threatens unlawful violence against another person (which we do not have in this case) may not be a true threat when made in the context of a political demonstration, such that the speech "[could] not reasonably be perceived as a threat." Within that legal framework, Rabbi Herzfeld's comments, which were not literally threatening and largely were not specifically directed at Ms. Rokhvand or Ms. Barmada, fall comfortably on the protected-speech side of the line between political hyperbole and true threats….

Ms. Rokhvand and Ms. Barmada argue that it was error for the trial court to fail to adequately consider threats made by "intermediar[ies] or co-conspirator[s]" of Rabbi Herzfeld. We decline to address the question whether others' conduct could be attributed to Rabbi Herzfeld because, even considering all the conduct by third parties raised at trial, that conduct does not establish two or more instances of true threats.

During the first incident, one of the men with Rabbi Herzfeld called Ms. Barmada a "Nazi bitch" and said that she should "go to the concentration camp," while Ms. Barmada spoke into a megaphone and accused the group of men of "celebrating terror" and being "proud of terrorizing children." The man's comments were, like Rabbi Herzfeld's comments discussed above, political speech that "an ordinary reasonable recipient who is familiar with the context of the statement" would not interpret as a threat.

That leaves the encounter with another of Rabbi Herzfeld's companions during the third incident, during which a man who approached the embassy area with Rabbi Herzfeld came very close to Ms. Rokhvand and made a number of comments to her. This encounter was the subject of another anti-stalking petition brought by Ms. Rokhvand against the man in question, which the trial court denied. The trial court concluded, in a decision included by the parties in their appendix in this court, that the encounter did not contribute to a course of conduct of stalking, in part because the man did not threaten Ms. Rokhvand. In any event, this encounter standing alone cannot make up a course of conduct of stalking….

The court also held that the D.C. anti-SLAPP statute applied to anti-stalking order requests as much as to other claims. That statute provides for prompt dismissal of meritless cases brought based on speech on public matters, and provides that a losing plaintiff in such a case has to pay the defendant's attorney fees; but how that plays out as to the attorney fee request here is left for the trial court (for reasons you can read about in the opinion).

Robert Parker, Steven Lieberman, and Nicole DeAbrantes represent Herzfeld.

The post No Anti-Stalking Order Against Rabbi Based on His Actions Opposing Anti-Israel Protest appeared first on Reason.com.

Plaintiff's claims under Title VII, the NYSHRL, the NYCHRL, and Section 1983 are largely premised upon expressions of political speech regarding Israel, Zionism, and the Palestinian conflict that the [Complaint] characterizes as antisemitic. This raises a preliminary question as to what extent such expressive conduct, no matter how personally offensive or hateful to individuals based upon a protected characteristic, can be actionable as workplace discrimination or harassment under federal or state antidiscrimination laws.

Title VII prohibits "harassment so severe or pervasive as 'to alter the conditions of the victim's employment and create an abusive working environment.'" Abusive and offensive speech, no less than abusive conduct, can undoubtedly cause a multitude of psychic harms that would render a workplace hostile.

Antidiscrimination laws do not create a categorical "'harassment exception' to the First Amendment's free speech clause," however. "[T]he Supreme Court has consistently held that expression motivated by bias, hatred, or bigotry falls within the First Amendment's protection." "[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Accordingly, while there is "no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause," it is equally clear that "[w]here pure expression is involved, anti-discrimination law steers into the territory of the First Amendment."

The potential conflict between the First Amendment and federal and state antidiscrimination laws is heightened when the offensive speech concerns matters of public concern…. [R]estriction of political speech based upon the viewpoint expressed will almost never pass constitutional muster. The First Amendment abhors political orthodoxy….

"In light of the competing interests … , courts have emphasized the need to exercise special caution when applying anti-discrimination law to matters involving traditionally protected areas of speech." "A statute that burdens protected speech must comport with the First Amendment regardless of whether it does so directly, such as by prohibiting certain speech outright, or indirectly, such as by requiring a court adjudicating a civil lawsuit between private parties to apply a rule of law that has the effect of imposing invalid restrictions on the defendant's constitutional freedom of speech."

In determining where the line between protected speech under the First Amendment and actionable harassment falls, the reasoning behind the prohibition on harassment in the workplace is instructive. "[G]overnment may constitutionally prohibit speech whose non-expressive qualities promote discrimination. For example, a supervisor's statement 'sleep with me or you're fired' may be proscribed not on the ground of any expressive idea that the statement communicates, but rather because it facilitates the threat of discriminatory conduct." … "[R]acial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities, as they do not 'seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way.'" Thus, "[h]arassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment."

When reconciling discrimination claims with the First Amendment, courts have explained that "the objective measure of what conduct is severe or pervasive … will distinguish between speech on matters of public concern directed to the community at large through generally accepted methods of communication, and speech that constitutes targeted, personal harassment aimed at a particular individual or individuals." …

Accordingly, before the Court considers whether Plaintiff has stated a claim under federal or state antidiscrimination laws, the Court must first filter out all "allegations deemed to be non-actionable political speech" from its analysis.

Applying this test, the Court holds that Plaintiff's discrimination claims based upon CUNY's sponsorship of the Palestinian Solidarity Series are not actionable under either federal or state antidiscrimination laws. A poster exhibit, the screening of a film, and a political discussion are all instances of speech that are "reasonably designed or intended to contribute to an ongoing debate regarding the Israeli-Palestinian conflict." There is no allegation that any of this speech was directed specifically at Plaintiff, or any other Jewish student or CUNY employee. Nor is there any allegation that Plaintiff or any other individual was physically threatened or intimidated during these events. This speech on matters of public and academic concern occurring in a university setting is protected under the First Amendment.

The SJEC Multi-Cultural Center's circulation of a petition … in response to the media coverage criticizing the Palestinian Solidarity Series is likewise political speech. According to the [Complaint], the petition stated that the BMCC SJEC display was intended to educate the community regarding the "theft" of Palestinian land. It described the March 2023 poster exhibit as the "history" of "Zionist settler colonial rule." "[A] college professor's expression on a matter of public concern, directed to the college community, [does not] constitute unlawful harassment …."

Although the [Complaint] alleges that the petition mentions Plaintiff, this too is protected free speech. "[T]he First Amendment provides speakers with latitude to criticize others, particularly authority figures, in the context of a genuine public debate." The [Complaint] alleges that the petition described "Plaintiff's request for anti-discrimination education on Jewish indigeneity in Israel" as part of an "intimidation tactic." The petition also described Plaintiff's opposition to the poster display as a "Zionist tactic."  Even if the petition explicitly referred to Plaintiff by name, it did so in the context of commenting on statements made by Plaintiff on a topic of urgent national debate, directed to the college community at large. Robust exchanges on matters of widespread public concern fall within the heartland of the First Amendment….

The court cited similar recent decisions, including Gartenberg v. Cooper Union(S.D.N.Y. 2025), Landau v. Corp. of Haverford College (E.D. Pa. 2025), Garrett v. CUNY(S.D.N.Y. 2025), and Kopmar v. Ass'n of Legal Aid Attorneys (S.D.N.Y. 2025), and Stand with Us Center for Legal Justice v. MIT (1st Cir. 2025). I agree with the court that the First Amendment limits workplace and educational harassment claims, and generally think the court's First Amendment analysis is sound, even if I would personally draw the lines slightly differently.

The court dismissed many of plaintiff's claims on First Amendment grounds. Here is what the court had to say as to the statements and actions that it found weren't immunized by the First Amendment:

CUNY's Investigation into Plaintiff Following Defendant Saleh's Complaint …

CUNY's investigation into Plaintiff arising from Saleh's complaint does not result in a cognizable harm. [Saleh was the Coordinator of the Multi-Cultural Center, one of the Social Justice and Equity Center centers. -EV]]. Because "an employer's investigation of a … complaint is not a gratuitous or optional undertaking" but rather "under federal law, an employer's failure to investigate may allow a jury to impose liability on the employer," the investigation into Plaintiff cannot in itself constitute an "injury in employment terms or conditions."

True, Plaintiff alleges the investigation was needlessly kept open for 15 months. Yet the Complaint fails to allege any facts indicating that this made Plaintiff "worse off." There are no allegations, for example, that plausibly suggest that Plaintiff was denied promotions or other career opportunities as a result of the pending investigation….

CUNY's Failure to Appoint Plaintiff to the Advisory Council on Jewish Life

Plaintiff fails to allege facts that directly or indirectly give rise to a plausible inference that he was not appointed to the Advisory Council at least in part because of his Jewish religion or Israeli national origin. Plaintiff conclusorily asserts that he "was and is more qualified to serve on Defendant's Advisory Council on Jewish Life" than those who were chosen.

Yet he does not outline the qualifications for a position on the Advisory Council. For example, he alleges that certain individuals appointed to the Advisory Council held "lower level positions at CUNY" than did Plaintiff, but nowhere explains how this correlates with the qualifications to serve on the Advisory Council.

Moreover, Plaintiff has not provided the religion or nationality of those chosen for the Advisory Council in his stead. He thus fails to establish that any of the individuals who were appointed were "outside his protected class." …

BMCC's Alleged Failure to Conduct a Good Faith Investigation into Plaintiff's Claims

Plaintiff alleges that CUNY and BMCC failed to conduct a good faith reasonable investigation of Plaintiff's reports of antisemitic, anti-Israeli treatment. Specifically, he claims that they did not timely investigate or provide redress for his March 2023 complaint regarding the RateMyProfessor.com reviews; his May 2023 complaints regarding the petition; or his June 2023 submission to the online portal regarding the poster exhibit, the circulation of the April 2023 petition, the RateMyProfessor.com comments, and his unanswered request for education on Jewish indigeneity in Israel….

Plaintiff does not plausibly allege that CUNY's failure to investigate his claim resulted in a "demonstrable harm." The conduct that was the subject of Plaintiff's complaints was largely protected First Amendment activity. Plaintiff thus did not suffer any cognizable harm from CUNY and BMCC's inaction.

Plaintiff offers no explanation as to how BMCC and CUNY's decision not to provide education on Jewish indigeneity in Israel, as requested by Plaintiff, caused Plaintiff to suffer an injury to the terms and conditions of his employment. Certainly, Plaintiff is not entitled to dictate to CUNY and BMCC the contents of its course offerings or educational materials….

[RateMyProfessor.com Reviews]

{First Amendment protection does not extend to speech that is defamatory, and thus discrimination claims can be premised upon the circulation of false statements regarding an individual…. As alleged in the TAC, {[t]he RateMyProfessor.com reviews} did not take place in the context of a public debate, but were "targeted, personal harassment aimed at a particular individual." The reviews purported to provide commentary on Plaintiff in his role as a professor and accused him of exhibiting racism towards Muslim and Palestinian students. In doing so, they referenced non-existent classes or classes that Plaintiff did not teach.

False accusations of misconduct can permissibly be considered as contributing to the creation of a hostile work environment.} If these comments were sufficiently severe and pervasive to create a hostile work environment for Plaintiff, then CUNY and BMCC's failure to adequately investigate and remediate his working conditions could have resulted in an injury actionable under Title VII.

{Although Plaintiff has not alleged any facts from which it can plausibly be inferred that it was a BMCC or CUNY employee who left the RateMyProfessor.com comments, Plaintiff argues that BMCC and CUNY can be held liable for their negligent failure to take appropriate action once he alerted the administration. Liability can be imputed to an employer for harassment committed by a non-supervisory employee or a non-employee if the employer acted negligently by failing "to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." "In determining the appropriateness of an employer's response, we look to whether the response was immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility the employer has" over the behavior of the responsible individual. Plaintiff argues that BMCC and CUNY did not act immediately or timely in response to his complaints relating to the petition or the anonymous RateMyProfessor.com comments. In light of the anonymous nature of the comments, it is unclear to what extent CUNY had any level of control over the individuals who posted online.

For purposes of this motion, the Court assumes, without deciding, that Plaintiff has pleaded facts sufficient to impute liability to CUNY and BMCC for the reviews.} [And a]ssuming arguendo that liability for the RateMyProfessor.com comments can be imputed to CUNY or BMCC, … anonymous comments on a third-party website, even when coupled with the other actionable allegations, do not cumulatively rise to the level of severe and pervasive. They were of limited duration and frequency.  Plaintiff was not subject to epithets based on his religion or national origin, let alone a "steady barrage" of such comments. None of the alleged conduct rose to the level of physical threat or humiliation. The hostile work environment claim is therefore dismissed.

Karen Rhau (NYC Law Department, Office of the Corporation Counsel) represents CUNY.

The post Court Rejects Harassment Lawsuit Over Anti-Israel Speech at CUNY, Largely on First Amendment Grounds appeared first on Reason.com.

This is a state-law tort action arising out of an online "doxing" incident that preceded Plaintiff's termination from her prior employer, Chartwell Law Offices LLP ("Chartwell"). Defendant Gadi Beer helped launch Chartwell in 2002 and served in senior leadership roles before leaving the firm in early 2023. Plaintiff alleges, upon information and belief, that he retained an equity interest in the firm and remained in regular contact with its founding partners. Defendant Beth Beer, Gadi Beer's wife, is a licensed attorney who served as a Regional Director in the U.S. Department of Education's Office for Civil Rights during the relevant period.

Plaintiff, a Muslim woman of Pakistani origin, was employed as an associate attorney in Chartwell's Miami office from 2018 until her termination on February 29, 2024. Throughout her employment, Plaintiff maintained a public Instagram account, "thatlawyermomlife," using her real name and the same profile picture that appeared on Chartwell's website, but her Instagram page did not include any reference to Chartwell or her place of employment.

After the October 7, 2023 attack on Israel, Plaintiff began posting prolifically in support of the Palestinian cause. She alleges she was "well-aware" that her posts "could be misconstrued by some people as antisemitism" and therefore consciously avoided negative references to Jews or Judaism, directing her criticism instead at Israel's government, the IDF, and Zionism. Her account was known to coworkers, some of whom followed and engaged with her content.

Beginning in late November 2023, Plaintiff alleges that an account using the handle "Beth Margot" attacked nearly every one of her posts about Gaza. The comments became "increasingly obsessive, vile and hateful," so Plaintiff blocked the account. Plaintiff later determined that "Beth Margot" was a pseudonym used by Defendant Beth Beer.

On January 11, 2024, the firm's two founding partners, General Counsel, and HR Director met with Plaintiff, telling her that the firm had been monitoring her posts after unidentified individuals expressed "concerns" that some could be perceived as antisemitic. In this meeting, Plaintiff was counseled to be "mindful" and "positive" going forward. During a second meeting about eight days later, firm leadership raised similar concerns. Plaintiff contends, however, that at no time was she told any post violated firm policy, asked to remove any post, or directed to stop posting entirely. Plaintiff also notes she posted more than fifty additional times between January 19 and February 29, 2024, but "Chartwell did not find issues with her content during that time frame."

On February 18, 2024, Plaintiff was "doxed" on an Instagram page called "Jew Hate Database" ("Jewhatedb"), which Plaintiff alleges is operated by the organization StopAntisemitism.org. The Jewhatedb Instagram post displayed an altered version of one of Plaintiff's Instagram posts: the page claimed to have "fixed it" by crossing out the pronoun "they" and substituting the word "Jews." The image did not state Plaintiff's name or employer, but it displayed her Instagram account handle, on which Plaintiff's real name was disclosed. The post generated dozens of hostile comments, speculation about where she worked, and demands that her employer fire her.

Plaintiff alleges, upon information and belief, that Defendants "conspired to submit Plaintiff's Instagram post to the Jewhatedb Instagram page and had advance notice" of the February 18 post, and that their "simultaneous appearances in the comments section … immediately following the posting" on Jewhatedb served "the sole and improper purpose of providing the critical missing information that was required to launch the doxing attack: Plaintiff's real name and a link to her firm profile." As to the comments themselves, Plaintiff alleges the following sequence:

1. A commenter urged others to "find out who this person is and have her fired … she's a lawyer, should be easy to find her."
2. Defendant Beth Beer, posting as "Beth Margot," responded that Plaintiff "works at Chartwell Law Offices" and posted a link to Plaintiff's firm profile, which included her work email, telephone number, and the Miami office's contact information.
3. She also commented: "I wonder how her Jewish clients would feel about her public posts. This one is innocuous compared to her regular posts. It's disgraceful."
4. Defendant Gadi Beer reposted the link to Chartwell Law that "Beth Margot" had originally posted.

Plaintiff alleges the reference to her Jewish clients rested on "non-public and highly confidential information … that only [Beth Beer] and her husband possessed." After another commenter stated he "[f]ound her in a second" using the link, Gadi Beer re-posted the same link to Plaintiff's Chartwell profile.

Ten days later, on February 28, 2024, Plaintiff was doxed a second time by StopAntisemitism.org's X account, which has more than 237,000 followers and which identified Plaintiff by name and by her position at Chartwell. That afternoon, Plaintiff received dozens of threatening emails, voicemails, and calls at work, and Chartwell began receiving "an overwhelming number" of communications demanding her termination.

The next morning, February 29, 2024, one of the firm's founding partners, its General Counsel, and its HR Manager informed Plaintiff she was being terminated "because the doxing incident on February 28 had resulted in widespread criticism and hostility towards Chartwell Law on its own social media pages," had damaged the firm's reputation and client relationships, and had made some Jewish employees fearful of working with her. Plaintiff alleges that Chartwell "itself referred to" the February 28 doxing incident as "the climactic triggering event" that resulted in her termination. The Amended Complaint does not allege that Defendants authored, contributed to, or had advance knowledge of the February 28 StopAntisemitism.org post, nor that Chartwell viewed Defendants' February 18 comments…

The court rejected plaintiff's tortious interference with a business relationship claim:

Under Florida law, a claim for tortious interference with a business relationship requires: (1) the existence of a business relationship under which the plaintiff has legal rights; (2) the defendant's knowledge of the relationship; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship…. [But t]he Second Restatement of Torts [which] { "… seems to reflect the law of Florida"} states:

One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not improperly interfere with the other's contractual relation, by giving the third person (a) truthful information …

The Eleventh Circuit recognized this principle in Worldwide Primates, Inc. v. McGreal (11th Cir. 1994). In Worldwide Primates, the defendant obtained government inspection reports documenting the plaintiff's treatment of its animals, excerpted their most damaging portions, and mailed them to the plaintiff's prospective business partner with a cover letter designed to end the relationship…. The Worldwide Primates court reasoned that the plaintiff "could establish no cause of action for interference with its business relationship … when all [the defendant] did was give [the recipient] truthful information." In so doing, the Court relied upon § 772 of the Restatement (Second) of Torts, as well as the comment to it, which states that:

There is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another. The interference in this instance is clearly not improper. This is true even though the facts are marshaled in such a way that they speak for themselves and the person to whom the information is given immediately recognizes them as a reason for breaking his contract or refusing to deal with another….

Notably, Worldwide Primates demonstrates that truthful information is non-actionable interference regardless of motive. In Worldwide Primates, the activist's letters were expressly designed to end the plaintiff's business relationship, yet the Eleventh Circuit still held that the plaintiff's tortious interference claim had no basis in law because the information was truthful….

The court also rejected plaintiff's "defamation by implication" claim:

Plaintiff alleges that Defendant Beth Beer defamed Plaintiff by implication when she commented on the February 18 Jewhatedb post: "I wonder how her Jewish clients would feel about her public posts. This one is innocuous compared to her regular posts. It's disgraceful." Plaintiff alleges that, in context, the comment falsely implied that she is "a virulent and irredeemable antisemite" unfit to represent Jewish clients. …

[But such an implication] is a subjective characterization of her publicly available posts [and thus a nonactionable opinion], not a verifiable assertion of fact. "Whether an accusation of bigotry is actionable depends on whether the statement appeared to be supported by reasonably specific facts that are capable of objective proof of truth or falsity." That is not the case here.

Plaintiff alleges that her posts are criticisms of Israel's government rather than its people, while Defendant Beth Beer allegedly reads them to mean she is an "antisemite." Yet, neither reading of the same public posts can be proven true or false because it is a subjective assessment and thus, an opinion….

And the court rejected plaintiff's civil conspiracy claim:

[C]ivil conspiracy is not an independent tort and thus requires an underlying actionable wrong [which the court held was absent here, for the reasons given above -EV] …. Florida recognizes a narrow exception [to that principle] and allows civil conspiracy to be an independent tort where the plaintiff can show a "peculiar power of coercion" possessed by the conspirators by virtue of their combining forces; importantly, this must be a power that no individual acting alone would possess…. Although Plaintiff alleges that Defendants possessed a peculiar power of coercion, thereby relieving her of the underlying tort requirement, other allegations of the Amended Complaint contradict this assertion.

Plaintiff affirmatively alleges that "there was a possibility that the commentators calling for Plaintiff's termination would eventually discover the information themselves," given that Plaintiff's real name appeared on her public Instagram page. Plaintiff also alleges that a commentator "exclaimed that he 'Found [Plaintiff] in a second' with the link provided," which demonstrates that Defendants could have carried out the act alone, possessing the same power together as they would have separately.

While Plaintiff alleges that Defendants "utilized" the Jewhatedb and StopAntisemitism.org platforms "to publicly expose Plaintiff as an alleged Jew hater and antisemite … and ultimately interfere with her employment relationship with Chartwell Law," the Amended Complaint is devoid of facts showing that Defendants submitted Plaintiff's Instagram post to either platform. Plaintiff merely alleges "[u]pon information and belief" that Defendants "conspired to submit Plaintiff's Instagram post to the Jewhatedb Instagram page …."

Even if the Jewhatedb Instagram post interfered with Plaintiff's employment—Plaintiff does not allege that it did—this allegation is insufficient to survive a motion to dismiss…. The only fact Plaintiff alleges is that each Defendant commented on the February 18 Jewhatedb Instagram post. However, Plaintiff alleges that Chartwell terminated her because of the StopAntisemitism.org doxing incident on February 28—not the February 18 Jewhatedb Instagram post. As such, Defendants' February 18 comments do not support the inference that they possessed a peculiar power of coercion by combining forces with each other or with Jewhatedb to achieve Plaintiff's termination. Further, Defendants' actions in commenting on the February 18 Jewhatedb Instagram post alone cannot give rise to a reasonable inference of "coercion through numbers or economic influence" lest every person who comments on a public Instagram post automatically becomes a co-conspirator. It bears repeating that "peculiar power of coercion" is a "narrow exception." …

David Andrew Hayes and Kenneth George Turkel (Turkel Cuva Barrios), Jaclyn Sara Clark (The Lawfare Project), and Marc Randazza (Randazza Legal Group, PLLC) represent defendants.

The post Pro-Palestinian Poster's "Doxing" Claim, Stemming from Her Firing as a Result of Public Criticism, Rejected appeared first on Reason.com.

We have, for instance, in our community a large number of Jews. They are a highly intellectual race, and are generally obedient to the laws of the country.

Thank you, Justice! (Recall that this was a time when "race" was used to include what we would today call an "ethnic group," such as Norwegians, Italians, and the like.) Meantime, the broader context of the case, which isn't about us at all (not everything is about us):

The plaintiff is a subject of the emperor of China, and the present action is brought to recover damages for his alleged maltreatment by the defendant, a citizen of the state of California and the sheriff of the city and county of San Francisco. The maltreatment consisted in having wantonly and maliciously cut off the queue of the plaintiff, a queue being worn by all Chinamen, and its deprivation being regarded by them as degrading and as entailing future suffering.

It appears that in April, 1876, the legislature of California passed an act 'concerning lodging-houses and sleeping apartments within the limits of incorporated cities,' declaring, among other things, that any person found sleeping or lodging in a room or an apartment containing less than five hundred cubic feet of space in the clear for each person occupying it, should be deemed guilty of a misdemeanor, and on conviction thereof be punished by a fine of not less than ten or more than fifty dollars, or imprisonment in the county jail, or by both such fine and imprisonment. Under this act the plaintiff, in April, 1878, was convicted and sentenced to pay a fine of ten dollars, or in default of such payment to be imprisoned five days in the county jail. Failing to pay the fine, he was imprisoned.

The defendant, as sheriff of the city and county, had charge of the jail, and during the imprisonment of the plaintiff cut off his queue, as alleged. The complaint avers that it is the custom of Chinamen to shave the hair from the front of the head and to wear the remainder of it braided into a queue; that the deprivation of the queue is regarded by them as a mark of disgrace, and is attended, according to their religious faith, with misfortune and suffering after death; that the defendant knew of this custom and religious faith of the Chinese, and knew also that the plaintiff venerated the custom and held the faith; yet, in disregard of his rights, inflicted the injury complained of; and that the plaintiff has, in consequence of it, suffered great mental anguish, been disgraced in the eyes of his friends and relatives, and ostracised from association with his countrymen; and that hence he has been damaged to the amount of ten thousand dollars….

The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be maintained as a measure of discipline or as a sanitary regulation. The act by itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases. Had the ordinance contemplated a mere sanitary regulation it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the hair which is practiced upon inmates of the state penitentiary, like dressing them in striped clothing, is partly to distinguish them from others, and thus prevent their escape and facilitate their recapture. They are measures of precaution, as well as parts of a general system of treatment prescribed by the directors of the penitentiary under the authority of the state, for parties convicted of and imprisoned for felonies. Nothing of the kind is prescribed or would be tolerated with respect to persons confined in a county jail for simple misdemeanors, most of which are not of a very grave character. For the discipline or detention of the plaintiff in this case, who had the option of paying a fine of ten dollars, or of being imprisoned for five days, no such clipping of the hair was required. It was done to add to the severity of his punishment….

The ordinance was intended only for the Chinese in San Francisco. This was avowed by the supervisors on its passage, and was so understood by every one. The ordinance is known in the community as the 'Queue Ordinance,' being so designated from its purpose to reach the queues of the Chinese, and it is not enforced against any other persons. The reason advanced for its adoption, and now urged for its continuance, is, that only the dread of the loss of his queue will induce a Chinaman to pay his fine. That is to say, in order to enforce the payment of a fine imposed upon him, it is necessary that torture should be superadded to imprisonment. Then, it is said, the Chinaman will not accept the alternative, which the law allows, of working out his fine by his imprisonment, and the state or county will be saved the expense of keeping him during the imprisonment. Probably the bastinado, or the knout, or the thumbscrew, or the rack, would accomplish the same end; and no doubt the Chinaman would prefer either of these modes of torture to that which entails upon him disgrace among his countrymen and carries with it the constant dread of misfortune and suffering after death. It is not creditable to the humanity and civilization of our people, much less to their Christianity, that an ordinance of this character was possible….

Many illustrations might be given where ordinances, general in their terms, would operate only upon a special class, or upon a class, with exceptional severity, and thus incur the odium and be subject to the legal objection of intended hostile legislation against them. We have, for instance, in our community a large number of Jews. They are a highly intellectual race, and are generally obedient to the laws of the country. But, as is well known, they have peculiar opinions with respect to the use of certain articles of food, which they cannot be forced to disregard without extreme pain and suffering. They look, for example, upon the eating of pork with loathing. It is an offense against their religion, and is associated in their minds with uncleanness and impurity. Now, if they should in some quarter of the city overcrowd their dwellings and thus become amenable, like the Chinese, to the act concerning lodging-houses and sleeping apartments, an ordinance of the supervisors requiring that all prisoners confined in the county jail should be fed on pork would be seen by every one to be leveled at them; and, notwithstanding its general terms, would be regarded as a special law in its purpose and operation….

We are aware of the general feeling—amounting to positive hostility—prevailing in California against the Chinese, which would prevent their further immigration hither and expel from the state those already here. Their dissimilarity in physical characteristics, in language, manners and religion would seem, from past experience, to prevent the possibility of their assimilation with our people. And thoughtful persons, looking at the millions which crowd the opposite shores of the Pacific, and the possibility at no distant day of their pouring over in vast hordes among us, giving rise to fierce antagonisms of race, hope that some way may be devised to prevent their further immigration.

We feel the force and importance of these considerations; but the remedy for the apprehended evil is to be sought from the general government, where, except in certain special cases, all power over the subject lies. To that government belong exclusively the treaty-making power and the power to regulate commerce with foreign nations, which includes intercourse as well as traffic, and, with the exceptions presently mentioned, the power to prescribe the conditions of immigration or importation of persons. The state in these particulars, with those exceptions, is powerless, and nothing is gained by the attempted assertion of a control which can never be admitted….

Whatever is done by way of exclusion beyond this must come from the general government. That government alone can determine what aliens shall be permitted to land within the United States and upon what conditions they shall be permitted to remain; whether they shall be restricted in business transactions to such as appertain to foreign commerce, as is practically the case with our people in China, or whether they shall be allowed to engage in all pursuits equally with citizens. For restrictions necessary or desirable in these matters, the appeal must be made to the general government; and it is not believed that the appeal will ultimately be disregarded. Be that as it may, nothing can be accomplished in that direction by hostile and spiteful legislation on the part of the state, or of its municipal bodies, like the ordinance in question—legislation which is unworthy of a brave and manly people….

The post Official Precedent from a Supreme Court Justice's Opinion: We Jews Are "a Highly Intellectual Race" appeared first on Reason.com.

Steven Anderegg is charged with producing, distributing, and possessing visual depictions of minors engaged in sexually explicit conduct and transferring such material to a minor under the age of sixteen. According to the government, Anderegg produced these images using Stable Diffusion, a generative artificial intelligence ("GenAI") software that allowed him to create hyper-realistic images of prepubescent children engaging in sexually explicit acts.

The appeal in this case deals only with Anderegg's challenge to the home possession charge, not to the production or distribution charge. Here's the court's analysis:

Obscenity, along with certain other categories of speech, has historically fallen "outside the scope of the First Amendment." And, although the precise meaning of "obscenity" is difficult to pin down, the Supreme Court has offered the following articulation: "[S]peech is obscene to the public at large—and thus proscribable—if (a) 'the average person, applying contemporary community standards[,] would find that the work, taken as a whole, appeals to the prurient interest'; (b) 'the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law'; and (c) 'the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'" Miller v. California (1973).

At the same time, "[t]he Constitution extends special safeguards to the privacy of the home." The Supreme Court addressed the clash of these two principles—the government's interest in proscribing obscenity and an individual's privacy in one's home—in Stanley v. Georgia (1969)…. Acknowledging that the government retains "broad power to regulate obscenity," the Supreme Court held that the State's "power simply does not extend to mere possession by the individual in the privacy of his own home." "If the First Amendment means anything," the Court explained, "it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." …

Approximately a decade after Stanley, the Supreme Court addressed whether the promotion and sale of CSAM [child sexual abuse material] implicated First Amendment rights. [In N.Y. v. Ferber 1982),] the Court nevertheless held that "[t]he test for child pornography is separate from the obscenity standard enunciated in Miller" because CSAM was different from adult obscene materials in several important ways. First, the state's interest in protecting the physical and psychological well-being of minors and preventing the sexual exploitation and abuse of children "constitute[d] a government objective of surpassing importance." Second, the distribution of CSAM was "intrinsically related to the sexual abuse of children" because the materials "are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation." Third, the advertising and selling of CSAM "provide[d] an economic motive for and are thus an integral part of the production of such materials." Fourth, the value of performances and photographs of children engaged in lewd sexual conduct was "exceedingly modest, if not de minimis." … Eight years later, the Supreme Court [held that] the protections articulated in Stanley would [not] extend to the possession of CSAM in one's home. Osborne v. Ohio (1990).

[Finally, i]n Ashcroft v. Free Speech Coalition (2002), the Supreme Court confronted the question of whether virtual CSAM, like actual CSAM, was beyond the First Amendment's reach…. "By prohibiting child pornography that does not depict an actual child," the Court stated, "the statute goes beyond [Ferber] which distinguished child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process." … For much the same reason, the Court remarked, Osborne too was distinguishable, because it had "anchored its holding in the concern for the participants, those whom it called the 'victims of child pornography.'" In Osborne, the state had a compelling interest in protecting children by attempting to eliminate CSAM at all levels of the distribution chain and preventing CSAM from being used to solicit minors. This was not the case in Free Speech Coalition, the Supreme Court declared, because the depictions did not involve actual children….

[T]he government [argued, among other things,] that, because it was often hard to distinguish virtual CSAM from real CSAM, prosecuting those who produced such material using actual children was very difficult. But the Court made short shrift of this argument, declaring that "[t]he Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter."

After Free Speech Coalition, Congress went back to the drawing board and enacted the statute at issue here. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 ("PROTECT Act") included a new provision which, in part, proscribed possession of "a visual depiction of any kind … that (1)(A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene." … [I]t expressly does not require that "the minor depicted actually exist." …

Because the images for which Anderegg is charged do not depict an actual child, Ferber and Osborne do not directly apply to this case…. And, because the arguments the government advances to remove the materials in question from Stanley's purview have all been squarely rejected by the Supreme Court in Free Speech Coalition, we conclude that § 1466A(b)(1) is unconstitutional as applied to Anderegg…..

Judge Lee, joined by Judge Kolar, also wrote a concurring opinion "to note that, given the significant advances in computer-generated image technology, particularly in the field of artificial intelligence, we would benefit from additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM if an appropriate case should arise":

[N]early twenty five years after the Court's decision, Free Speech Coalition controls in a day where "AI-generated CSAM is virtually indistinguishable from CSAM created through the physical abuse of a child." At the time of Free Speech Coalition, several Justices predicted as much. Justice O'Connor echoed many of the concerns the government argues today, namely that "rapidly advancing technology soon will make it all but impossible to" enforce prohibitions of actual CSAM and "[c]omputer-generated images … bear a remarkable likeness to actual human beings."

Justice Thomas too forecasted that "technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children." In his view, "if technological advances thwart prosecution of 'unlawful speech,' the Government may well have a compelling interest in barring or otherwise regulating some narrow category of 'lawful speech' in order to enforce effectively laws against pornography made through the abuse of real children."

According to some experts, that day may have arrived. Recent data suggests that the influx of AI-generated images reported to the NCMEC CyberTipline imposes increasing burdens on law enforcement…. "Even the images that do not depict a real child put a strain on law enforcement resources and impede identification of real child victims." … [P]erpetrators may "disguise pictures of real children being abused by making the image look computer-generated" ….

What is more, AI-generated CSAM may also present other challenges not raised by the government in this appeal. For example, researchers have found that "a major dataset used for training image-generating AI contained hundreds of CSAM images." Thus, unlike the virtual CSAM at issue in Free Speech Coalition, the market for AI-generated virtual CSAM images may impact the demand for actual CSAM on which the AI models can train. Such a finding would implicate many of the concerns raised in Osborne.

In this case, the record is insufficient to evaluate these complex issues, and, of course, we are bound by the dictates of Free Speech Coalition. But it goes without saying that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." The stakes are high, and we must be mindful of the ever-accelerating advancements in image generation technology.

Joseph Aragorn Bugni represents Anderegg.

The post Home Possession of AI-Generated Porn Depicting Fake Children Remains Constitutionally Protected, Seventh Circuit Rules appeared first on Reason.com.

This action arises out of alleged defamatory statements that Defendant Umaymah Mohammad, a student at the Emory University School of Medicine, made about Plaintiff Joshua Winer, a physician and professor at Emory….

Mohammad wrote about Winer that, among other things,

one of the professors of medicine we have at Emory [apparently referring to Winer -EV] recently went to serve as a volunteer medic in the Israeli Offense Force [sic] and recently came back. This man participated in aiding and abetting a genocide, in aiding and abetting the destruction of the healthcare system in Gaza and the murder of over 400 healthcare workers, and is now back at Emory so-called teaching medical students and residents how to take care of patients.

She and CAIR Georgia and CAIR Foundation, plaintiff alleged, used this and similar statements to "call[] for Emory to investigate him and/or terminate his employment."

Plaintiff sued for defamation; see this post for more details on that claim, which the court allowed to go forward in part. But the court also allowed plaintiff's federal civil rights conspiracy claim to go forward, as to the claim that defendants conspired to violate his rights under Title VI:

To state a claim under § 1985(3), a plaintiff must establish that the defendant has

(1) conspired … (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) taken or caused an action to be taken in furtherance of the conspiracy's object, and (4) injured an individual's person or property or deprived her of exercising any right or privilege of a United States citizen….

Title VI provides that no one shall "be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance" on the ground of his "race, color, or national origin." … [N]owhere in the Second Amended Complaint does the Plaintiff allege Emory's federal funding as the linchpin for his Title VI-based § 1985(3) claim.  So, the only arguably proper factual basis for this portion of the Plaintiff's § 1985(3) claim is his allegation that CAIR Georgia conspired with CAIR Foundation—which he alleges is federally funded—"to interfere with [his] rights by publicly demanding that Emory investigate and/or terminate his employment" via the IG Post and the allegedly defamatory and false accusations therein. He also asserts that this discrimination was carried out "in the administration of CAIR Foundation's program or activities receiving Federal financial assistance."

Construing the factual allegations in the Plaintiff's favor, the Plaintiff has stated a § 1985(3) claim predicated on Title VI at this stage. Although CAIR Georgia argues that there is no nexus between CAIR Foundation's receipt of federal funding and its alleged conspiratorial actions, no such nexus is required. To state a claim under § 2000d, a plaintiff must  only  allege  that  the  defendant  receives  federal  funds,  that  it discriminated against the plaintiff on the basis of race, color, or national origin, and that it did so in the course of a federally funded program. The Plaintiff has made those allegations here.

CAIR Georgia also argues that the Plaintiff has failed to allege racial or other class-based animus behind the conspirators' actions…. [But plaintiff] says that CAIR Georgia was motivated by "his Jewish identity and/or Zionist beliefs," going on to say that his military service resulted from a "sense of duty to serve the Jewish homeland, which is integral to his racial identity as a Jew" and that his association with Zionism is also "an integral of Jewish identity for a very significant number of Jews." In essence, the Plaintiff alleges that his military service and association with Zionism are "markers" of his Jewish identity, and that his Jewish heritage is a protected class….

While CAIR Georgia contend that the Plaintiff actually pleads that the Defendants were motivated by a desire to express their political views, taking that view would require the Court to construe the Second Amended Complaint's allegations narrowly and in their favor, a task which the Court may not do.

Taking the facts as the Plaintiff has alleged them, CAIR Georgia conspired with CAIR Foundation to create the IG Post in hopes of pressuring Emory to discipline or terminate him because of their views of the Plaintiff's Jewish identity, as expressed through his Zionist beliefs and IDF military service. Critical to this interpretation is the Plaintiff's allegations that his IDF service was tied to the duty he felt based on his nationality and the significance of Zionism in Jewish culture. These allegations suffice at this stage to demonstrate that a discriminatory animus based on a protected class—the Plaintiff's national origin— motivated CAIR Georgia's actions, not mere political differences.

Whether this claim could withstand summary judgment is a different issue, and not one that is before the Court today….

The post Israeli-American Emory Professor's Civil Rights Conspiracy Claim Against CAIR Georgia and Emory Student Can Go Forward (in Part) appeared first on Reason.com.

This action arises out of alleged defamatory statements that Defendant Umaymah Mohammad, a student at the Emory University School of Medicine, made about Plaintiff Joshua Winer, a physician and professor at Emory. Mohammad, who is Palestinian, sent an email to the entire School of Medicine student and faculty body on January 17, 2024, in which the Plaintiff alleges she "praised terrorism against Israel, expressed her hatred towards Israel and the United States, and stated that Israel, the United States, and Emory are perpetrating a genocide against Palestinians in Gaza."

Nearly two months later, in March 2024, the Plaintiff published an op-ed piece in an Israeli news publication sharing his decision to travel to Israel to volunteer as a physician in the Israeli Defense Force ("IDF") following the October 7th Hamas attack on Israel. The Plaintiff identifies as Jewish and maintains dual American and Israeli citizenship. He is a surgical oncologist at Emory Winship Cancer Institute, a professor in the Department of Surgery, Division of Surgical Oncology at the School of Medicine, and serves as the School of Medicine Surgical Clerkship Director.

In April 2024, Mohammad participated in an interview for a news organization called Democracy Now!. In the interview, Mohammad was asked about the email she sent and was asked to explain the importance of the issue to her. As part of her response, Mohammad referenced Winer by stating that

one of the professors of medicine we have at Emory recently went to serve as a volunteer medic in the Israeli Offense Force [sic] and recently came back. This man participated in aiding and abetting a genocide, in aiding and abetting the destruction of the healthcare system in Gaza and the murder of over 400 healthcare workers, and is now back at Emory so-called teaching medical students and residents how to take care of patients.

Mohammad was ultimately suspended from the School of Medicine for one year based on her comments in the Democracy Now! interview. In November 2024, Mohammad participated in a podcast hosted by the International Union of Scientists in which she made similar statements about the Plaintiff.

In January 2025, she made more statements about the Plaintiff's IDF service in the online publication Mondoweiss. In the Mondoweiss piece, Mohammad alluded that the Plaintiff "believe[d] in the legitimacy of apartheid, and that some human lives are not as important as others." At the end of the piece, she provided a link to a social media post by Defendants National Students for Justice in Palestine ("NSJP") and Doctors Against Genocide ("DAG"), which ultimately led to a campaign on the website of Action Network that "contained additional false statements about Plaintiff and identified him by name." NSJP and DAG also published posts on Instagram regarding the Action Network campaign, which directly quoted Mohammad's Democracy Now! interview. These Defendants made a second Instagram post a few weeks later. The Plaintiff alleges that Defendant WESPAC is NSJP's fiscal sponsor and, therefore, "knowingly funded and facilitated NSJP's coordinated efforts to vilify Plaintiff and pressure Emory to discipline [him]."

In February 2025, Defendant CAIR Georgia held a press conference on the subject of Mohammad's suspension, during which she made the following statement:

[Emory] disciplined me for exposing Emory's complicity in the destruction of Gaza in an interview where I mentioned an unnamed physician who served in the military, actively engaged in the genocidal campaign against the Palestinian people, my people … I cannot learn from a physician who might have fired one of the 355 bullets that landed in 6 year old Hind Rajab's body.

Or who might have helped make the decision to bomb one of the hospitals in Gaza. Or who might have celebrated the murder of our communities on the rubble still wet with Palestinian blood. A doctor who cannot see Palestinians as human beings will return to Atlanta to offer the same disposability to black and brown patients at home.

CAIR Georgia, along with CAIR Foundation Inc. ("CAIR Foundation"), also issued a press release with a link to Mohammad's Democracy Now! interview and rebroadcasted this speech on its Instagram account on February 11, 2025. In this post, (the "IG Post"), CAIR Georgia also replied to comments by providing a link to a previously circulated email template and phone script that identified the Plaintiff by name and called for Emory to investigate him and/or terminate his employment.

Mohammad's statements were later broadcasted and published by television stations and news outlets. Defendant Emory SJP shared NJSP and DAG's posts on its Instagram account, and also made similar posts sharing the Democracy Now! interview and identifying the Plaintiff. Defendant Rupa Marya works with Mohammad as a cofounder of DAG and, the Plaintiff alleges, she has "frequently identified Plaintiff by name and used her social media platforms to spread harmful and reputationally damaging statements about him," including blaming him for the termination of a Palestinian professor at Emory School of Medicine and accusing him of participating in a genocide.

The court allowed plaintiff's defamation and related claims (including a conspiracy to defame claim) to go forward, at least in part:

As the Court reads the Second Amended Complaint, the Plaintiff has identified the following statements in his defamation per se count as attributable to CAIR Georgia:

1. Mohammad's statements during the Democracy Now! interview, including her statements that the Plaintiff "aid[ed] and abet[ed] a genocide, … aid[ed] and abet[ed] the destruction of the healthcare system in Gaza and the murder of over 400 healthcare workers," which CAIR Georgia republished in the IG Post on its Instagram account, and on which CAIR Georgia added links to a defamatory phone script and email in the comments;
2. Mohammad's speech on February 11, 2025, during a press conference hosted by CAIR Georgia, in which she stated "[h]aving a physician faculty member who participated in a military convicted of committing genocide against Palestinians makes me feel unsafe. It makes black and brown medical students feel unsafe. It makes black and brown and indigenous patients feel unsafe … or who might have helped make the decision to bomb one of the hospitals in Gaza … a doctor who cannot see Palestinians as human beings will return to Atlanta to offer the same disposability to black and brown patients at home";
3. CAIR Georgia's issuance of a press release on its Facebook page on February 11, 2025 that included links to a phone script and email template that named the Plaintiff, implied he support genocide, war crimes, and apartheid, in addition to with Mohammad's Democracy Now! interview;
4. CAIR Georgia's executive director's statement, during the February 11, 2025 press conference, that Plaintiff's employment was indicative of Emory's support for "Israel's perpetration of war crimes";
5. CAIR Georgia's March 24, 2025 post on its Instagram that, among other things, stated that Mohammad was challenging Emory's "medical professionals' complicity in the genocide in Gaza."
6. CAIR Georgia's executive director's March 24, 2025 statement that "[Mohammad] joined the field trying to understand inequities and the role of medicine in violence. To have to work side by side with an IDF soldier is exacerbating, and makes it uniquely painful for her."

The Court begins with statement (1), which includes Mohammad's statements that the Plaintiff "aid[ed and abett[ed] a genocide" and "aid[ed] and abett[ed] the destruction of the healthcare system in Gaza." Regardless of whether these statements express protected political opinion in the first place, construing the facts in the Plaintiff's favor, these statements could reasonably "imply defamatory facts about the plaintiff that are capable of being proved false." This is because Mohammad's statements—that CAIR Georgia co-posted with supporting commentary—imply that the Plaintiff actively participated in combat operations during his service in the IDF, but the Plaintiff pled that he served

solely in his capacity as a physician, providing medical care to wounded soldiers. His involvement in combat was limited to situations in which his unit came under direct attack … Mohammad had no factual basis to claim that Plaintiff participated in or approved the bombing of hospitals in Gaza [or] celebrated the killing of Palestinians.

At this stage, this allegation is enough to satisfy the "false and defamatory statement" element of his defamation per se claim.

The same is true of parts of statement (2). There are parts of the statement that express Mohammad's opinion, such as the part that the Plaintiff's military service makes her, and "black and brown medical students," feel unsafe. This is a subjective assessment that cannot be proved false. But the part of the statement that suggests the Plaintiff might have been involved in combat decisions and accuses him of not "see[ing] Palestinians as human beings" and offering "the same disposability to black and brown patients" at Emory certainly implies that the Plaintiff engaged in combat operations while serving in the IDF and that patients of certain races are not safe in his care. The Plaintiff has alleged counter-facts that if, accepted as true, prove these portions of the statement false, so the Plaintiff states a claim as to these portions of statement (2).

Statements (3), (4), and (5) can fairly be grouped together for analytical purposes because each statement, when read in the entire context, implies that the Plaintiff supports and participated in a genocide, committed war crimes, and believes in apartheid, which imply facts that can be proven false. But again, because the Court accepts as true the Plaintiff's allegations that his service in the IDF was limited to practicing medicine and defensive response only, and that he does not support apartheid, this portion of the Plaintiff's defamation per se claim may proceed at this stage. In other words, these allegations are enough to satisfy the "false and defamatory statement" element of the Plaintiff's defamation per se claim.

The Court agrees with CAIR Georgia, however, that statement (6) does not contain any actionable defamatory statements. The only factual portion of the statement is that the Plaintiff served as an IDF soldier, which he admits, and that he now works "side by side" with Mohammad, referencing the fact that both parties either study or work at Emory. Whether Mohammad finds working alongside the Plaintiff" "uniquely painful" is a matter of opinion not capable of being proved false. Thus, the Court will dismiss the portion of the Plaintiff's defamation per se claim predicated on this statement, as well as the opinion portions of statement (2). But, for the foregoing reasons, CAIR Georgia's Motion to Dismiss will be denied as to the rest of the defamation per se claim.

I'll also have a post later this morning on the civil rights conspiracy facet of this case.

The post Israeli-American Emory Professor's Defamation Case Against CAIR Georgia and Emory Student Can Go Forward (in Part) appeared first on Reason.com.

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Some excerpts from the longish opinion today in Fellers v. Kelley, written by First Circuit Judge Sandra Lynch, joined by Judge Jeffrey and Howard:

On September 17, 2024, [plaintiffs] were instructed by Bow High School officials to remove pink "XX" wristbands they wore in protest while watching their daughters (in [one plaintiff's] case, granddaughter) play in a girls' soccer game against a team with one transgender athlete. Further sanctions followed…. [W]e conclude that appellants have established a likelihood of success as to their viewpoint discrimination claim arising from the sanctions imposed on them for their passive speech in wearing these wristbands….

The district court analyzed the school playing fields and adjacent parking lot, as appellants requested, under the mode of First Amendment law applicable to limited public fora as to impermissible viewpoint discrimination…. [The] appellee school district argues that this case must be analyzed more in the mode of Tinker v. Des Moines Independent Community School District (1969) … [and other cases that] recognize the particular interests inherent in the public elementary and high school settings, and the necessary discretion given to public school administrators in the difficult job of running public schools….

Neither of those two different classic modes of First Amendment analysis, urged on by these opposing parties, is a perfect fit for this public high school speech case, and we note that the Supreme Court has not addressed this precise question. We need not and do not reach the complex question of which (or whether) either of these alternate modes is the appropriate First Amendment type of analytical model for the facts of record here. We conclude that on these facts the differences in analysis would not affect the outcome here….

The school's legitimate interest in regulating certain kinds of speech on the playing field sidelines … is not demonstrated by the evidence in this record. There is no evidence that appellants' protest caused a material disruption [which would be relevant under Tinker]. There was no disruption until school officials chose to intervene, after which the referee suspended the game for approximately fifteen minutes and the school officials chose to impose restrictions on appellants' speech and impose sanctions. The appellants did not stage any pregame demonstrations; did not march, shout, chant, or otherwise disrupt the game; and did not confront Tirrell or any other player. Instead, they waited until halftime before donning the "XX" wristbands in a passive, silent gesture of protest. There is also no evidence of harassment, given there is no evidence in the record that any player actually saw the wristbands.

The lack of any evidence demonstrating harassment also defeats the school district's argument that it had an affirmative duty under Title IX to protect students from the speech in which appellants engaged…. While it is true that appellants chose to protest at the September 17 game because of Tirrell being a player, the record does not contain evidence of appellants engaging in harassment before or during the game. To the contrary, appellants did not shout, chant, make threats, or aggressively gesture at Tirrell to communicate their views against her participation. Nor is there evidence that Tirrell or any other player even saw the wristbands or "subjectively perceived the environment to be hostile or abusive."

Principal Fisk did note the challenges that transgender students face generally. But Fisk did not ever explain how appellants' display of the "XX" symbol constituted sufficiently severe or pervasive conduct to qualify as harassment under Title IX. And to the extent the district court concluded that the silent wearing of "XX" wristbands on the sidelines of a school soccer field, without more, always amounts to harassing speech, we disagree.

The school district responds that it may make "predictive judgment[s]" to proactively prohibit conduct that it believes will eventually lead to an actionable Title IX claim….. We agree with the general proposition. But the argument fails on the facts of this record…. We need not decide in this appeal whether and under what circumstances passive speech, on other facts, consisting of displaying the "XX" symbol on school property during school events could be reasonably thought to be harassing. But appellants' silent display of the "XX" symbol at the September 17 game fell short of harassment and disruption, and we conclude that the district court erred in holding that the school's interest in prevention of harassment justified the prohibition.

While it is a closer issue, we conclude that the school district likely was not justified in sanctioning the appellants for their passive speech based on its concerns derived from the earlier exchanges with the appellants and other parents. None of appellants' reported discussions, including their possible different methods of protest reported to Bow High School officials by other parents, led to any attempt to "heckle and intimidate" Tirrell. And that was evident both before and throughout the game.

It is true that Fellers initially attempted to convince his daughter to get the Bow High School players to wear the wristbands, but his daughter informed him that "she could not get full support from the team and was afraid that it would divide them." Fellers's Facebook post made the night before the game encouraged spectators "to protect the integrity and safety of female athletics" and "come out to support our XX Lady Falcons and show your solidarity with our girls' team." But the record shows only that the appellants and perhaps others of similar views engaged in a passive protest and only started the protest at halftime. While the school district may make predictive judgments about whether disruption may occur and "need not be certain of its forecast," it cannot use those projections to immediately suppress a passive, silent protest, that did not impair any of the legitimate school administration interests recognized by the Supreme Court.

This brings us to the school officials' other stated reasons for sanctioning appellants. Superintendent Kelley stated that the "XX" symbol conveyed an "exclusionary" message about gender. Principal Fisk, who ordered appellants to remove the wristbands, described the symbol both as "hateful" and as "anti-trans." As to these justifications for the sanctions imposed, the record evidence demonstrates the likelihood that the school district imposed sanctions on the appellants' wearing of the wristbands because it disagreed with the protest message conveyed….

Although the leading Supreme Court case on viewpoint discrimination in academic limited public fora, involved colleges and not high schools, and involved a limited public forum, both significant differences, Rosenberger's anguage about viewpoint discrimination is pertinent. "The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."

The characteristics of the school as a place of learning reinforce that administrators cannot favor one side of a debate involving parental speech on an issue of prominent public concern, and which, in those parents' views, concerned the safety of their children. As the Supreme Court stated in a case involving a high school football game, "learning how to tolerate diverse expressive activities has always been 'part of learning how to live in a pluralistic society.'"

Judge Julie Rikelman concurred in the judgment, reasoning that Tinker might not prohibit viewpoint-discriminatory speech restrictions, but that in this case the school district had accepted the viewpoint neutrality requirement:

The school district accepted that the limited public forum framework applied to the facts here and conceded repeatedly, both in its brief and at oral argument, that it could restrict speech at the September 17 soccer game only for viewpoint neutral reasons…. Although it did urge us to conduct our First Amendment analysis with the principles of Tinker in mind, it did so only in arguing that its actions were reasonable and thus satisfied the [reasonableness] prong of the limited public forum test….

With the school district's concession in mind, I agree that the record lacks evidence of actionable harassment or material disruption from the plaintiffs' speech at the September 17 soccer game. The record also demonstrates that school officials likely restricted the XX symbol because they viewed it as "exclusionary" and demeaning to transgender students. That amounts to viewpoint discrimination under relevant precedent.

Del Kolde, Brett Nolan, and Nathan Ristuccia (Institute for Free Speech) and Richard Lehmann (Lehmann Major List, PLLC) represent plaintiffs. were on brief, for appellants.

The post High School's Ordering Parents to Remove Pink "XX" Protest Wristbands at Girls' Soccer Game Likely Violated First Amendment appeared first on Reason.com.

Congresswoman McIver represents New Jersey's 10th Congressional District in the United States House of Representatives and serves on the Committee on Homeland Security. On May 9, 2025, Congresswoman McIver and two other Representatives conducted an unannounced congressional oversight inspection of Delaney Hall Federal Immigration Facility, pursuant to statutory authority…. Upon arrival, Congresswoman McIver and the other Representatives entered through the security gate into the secured exterior area of the facility. They proceeded inside Delaney Hall and waited for over an hour in the facility's administrative office.

During that time, Newark Mayor Ras Baraka and his security detail arrived at Delaney Hall and they were allowed through the security gate into the secure exterior premises of the facility. Meanwhile, dozens of protestors and media members had amassed outside the security gate.

{We draw these facts from the Indictment, from evidence in the record, and as set forth by the District Court in its opinions. We accept as true the facts alleged in the Indictment for purposes of considering a motion to dismiss. Neither party challenges the facts as set forth by the District Court.}

The Homeland Security Investigations ("HSI") Special Agent in Charge in New Jersey (referred to in the Indictment and by the District Court as "Victim-1" or "V-1") approached the Mayor inside the security gate and advised him that he was not allowed on the premises, ordered him to leave, and told him he would be arrested if he did not comply. At that time, Congresswoman McIver and the two other Representatives left the administrative office and walked toward the security gate, where the Mayor was speaking with Victim-1. Victim-1 directed the Mayor and his security detail outside of the Security Gate to the unsecured area outside the facility, and Congresswoman McIver and the two Representatives began to walk back towards the administrative office.

Moments later, Victim-1 informed a group of federal agents that the United States Deputy Attorney General had authorized the Mayor's arrest, and the agents exited the secured premises and approached the Mayor and his security detail. Upon observing this, the Congressional delegation also proceeded into the unsecured area. An unidentified member of the crowd yelled, "circle the Mayor," and some protesters, as well as Congresswoman McIver and the two Representatives, encircled the Mayor as Victim-1 and the other agents pushed their way through the crowd to apprehend him.

Video surveillance shows Congresswoman McIver placing herself between the Mayor and Victim-1. The Indictment states that Congresswoman McIver then "slammed her forearm into the body of V-1" and "reached out and tried to restrain V-1 by forcibly grabbing him."

Victim-1 then handcuffed the Mayor and led him toward the security gate through a dense group of protesters. In the meantime, Congresswoman McIver and one of the Representatives also moved towards Delaney Hall to reenter the secured area. The Indictment then describes Congresswoman McIver as "push[ing] past" an ICE Deportation Officer (referred to in the Indictment and by the District Court as "Victim-2" or "V-2") while "using each of her forearms to forcibly strike V-2." Congresswoman McIver was able to reenter the secured area shortly thereafter, and she and the other two Representatives then entered the facility and conducted their oversight inspection.

The government charged that McIver "did forcibly assault, resist, oppose, impede, intimidate, and interfere" with a federal official or officials while the official(s) were "engaged in and on account of the performance of their official duties."

The actus reus alleged in Count One was that Congresswoman McIver "slammed her forearm" into V-1 and tried to restrain him by "forcibly grabbing him." The actus reus alleged in Count Two was that Congresswoman McIver "pushed past V-2 while using each of her forearms to forcibly strike V-2 as she returned inside of the secured area of Delaney Hall."

Count Three did not allege a separate actus reus committed by Congresswoman McIver against a specific victim; rather, Count Three relied upon the prefatory paragraphs and charged Congresswoman McIver with forcibly assaulting, resisting, opposing, impeding, intimidating, and interfering with "HSI Special Agents and ICE Deportation Officers while said Special Agents and Officers were engaged in and on account of the performance of their official duties." At Oral Argument, the Government stated that the charged conduct in Count Three encompassed "essentially all" of Congresswoman McIver's "efforts to hinder, impede the arrest of the Mayor," including those efforts that "started even inside the gate." …

The court held that the indictment didn't violate the Speech or Debate Clause:

The Speech or Debate Clause provides that "for any Speech or Debate in either House," Members of Congress "shall not be questioned in any other Place." The "central role" of the Speech or Debate Clause is "to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." The Clause's protection extends beyond literal speech and debate on the floor to protect any "legislative activity" performed by a member of Congress…. The key inquiry is whether the act is " 'an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.'"

The Speech or Debate Clause does not provide a blanket protection over "all things in any way related to the legislative process." It does not extend to "political matters," for example, nor does it cover activities like "'errands' performed for constituents [and] the making of appointments with Government agencies." "[I]llegitimate activities such as accepting bribes in exchange for taking official action" also fall outside the scope of the Clause's protection, "[e]ven if these non-legislative acts involve policy or relate to protected legislative activity." On the other hand, "investigative activities by lawmakers are protected by legislative immunity," because "legislative fact-finding" and the "power to investigate" are "integral part[s] of the legislative process." …

[McIver's being] physically within the immigration facility's property or directly outside of it … is not dispositive. Instead, to determine whether her conduct was legislative, we focus "on the nature of the act." Any conduct Congresswoman McIver took that was investigative in nature was legislative, whether that conduct took place inside Delaney Hall or directly outside of it.

Still, the nature of the conduct charged in Count One is non-legislative. Congresswoman McIver's physical contact with Victim-1 was not "integral" to the "deliberative and communicative processes by which Members participate in committee and House proceedings"—namely, to her inspection of Delaney Hall. This conclusion would hold regardless of whether Congresswoman McIver had physical contact with Victim-1 inside Delaney Hall or outside of it, just as the Speech or Debate Clause protects Congresswoman McIver's legitimate legislative fact-finding, whether such fact-finding occurs on or off the facility's property…. [Likewise,] the acts of pushing past and forcibly striking someone are unambiguously non-legislative: they are not integral to the legislative process….

Congresswoman McIver further asserts that, per Section 527 [of the Federal Consolidated Appropriations Act], the act of entering a DHS facility "for the purpose of conducting oversight" is legislative in nature. Section 527 states in relevant part that "[n]one of the funds appropriated or otherwise made available to the Department of Homeland Security by this Act may be used to prevent any [member of Congress] from entering, for the purpose of conducting oversight, any [detention] facility operated by or for the Department of Homeland Security." Count Two does not charge Congresswoman McIver for entering Delaney Hall, however; it charges her for pushing past Victim-2 and using her forearms to forcibly strike him—conduct distinct from, though occurring during the process of, "return[ing] inside of the secured area of Delaney Hall." We have considered the "nature" of the charged conduct and concluded it is unambiguously non-legislative….

[N]othing in the record indicates that Congresswoman McIver's entry into the secured area of the facility was an act of inspection, rather than simply a "necessary precondition" to her oversight. Whether McIver's legislative and non-legislative actions are "intertwined," as our dissenting colleague contends, might be a closer call if, for example, Congresswoman McIver asserted that she was observing Victim-2's conduct as part of her inspection and contacted Victim-2 incidentally upon re-entry into the facility as she leaned forward to read his nametag.

Given what she does contend, though, the nature of her conduct in entering the secured area is … not subject to the Clause's protections. Section 527's reference to "entering" a detention facility does not change our analysis. Section 527 sets forth limitations on spending and does not prescribe content for legislative duties. Its text therefore cannot transform the act of entering Delaney Hall from a "precondition" to an "integral part" of Congresswoman McIver's inspection that day….

Count Three also incorporates the first 12 paragraphs of the Indictment, which describe conduct both inside and outside the security gate that allegedly prevented the Mayor's arrest. It charges Congresswoman McIver with forcibly assaulting, resisting, opposing, impeding, intimidating, and interfering with "HSI Special Agents and ICE Deportation Officers while said Special Agents and Officers were engaged in and on account of the performance of their official duties."

Count Three differs from the other two counts, however, in that it does not assert a specific actus reus. Instead, Count Three charges Congresswoman McIver for engaging in a range of conduct covering a broad timeframe and involving numerous unidentified victims. Indeed, the Government stated at oral argument that Count Three was intended to charge "essentially all" of Congresswoman McIver's "efforts to hinder … the arrest of the Mayor," including those efforts that "started even inside the gate."

The District Court did not consider these factual differences when it analyzed Counts One and Three. Rather, it grouped Counts One and Three together and focused on the narrower timeframe when Congresswoman McIver was outside the security gate. Based on the description at oral argument, though, Count Three implicates a larger range of conduct and, at a minimum, paragraphs 10-12 of the Indictment. Because the District Court did not separately assess the nature of the conduct charged at Count Three, we will remand for the District Court to consider whether the charged conduct includes legislative acts and, if so, whether Count Three can stand when eliminating such protected conduct.

The court also rejected McIver's separation of powers argument, and concluded that it lacked appellate jurisdiction to consider, at this stage of the proceedings, McIver's First Amendment selective prosecution argument:

Judge Thomas Ambro concurred as to separation of powers, but dissented in part as to the speech or debate clause, and also argued that the court did have jurisdiction to consider the First Amendment argument. A short excerpt:

[T]he Speech or Debate Clause … privilege … prevents "a criminal action … instituted by the Executive Branch" from "imperil[ling]" legislative independence by questioning a Member's motivation when exercising her core legislative duties. The duty Congresswoman McIver sought to perform when she visited Delaney Hall on May 9, 2025 strikes at the heart of the Clause's purpose: to oversee the Executive Branch. I agree with my colleagues that Count One—"slamm[ing] her forearm" into Victim-1 ("V-1") and "forcibly grabbing him," in an effort to stop the arrest of Mayor Baraka—does not implicate that protected activity. And I agree that a remand is necessary to sort out whether Count Three does so.

But I part with the majority's treatment of Count Two. I would vacate the District Court's denial of Congresswoman McIver's motion to dismiss that Count and remand for factual findings critical to determining whether legislative immunity attaches to the act the Count targets….

Count Two charges that Congresswoman McIver "pushed past" Victim-2 ("V-2") and "us[ed] each of her forearms to forcibly strike [him] as she returned inside of the secured area of Delaney Hall." … [But] the extrinsic evidence [shows] that Congresswoman McIver's contact with V-2 was incidental to re-entering Delaney Hall to inspect the facility, an act of legislative fact-finding covered by the Speech or Debate Clause and authorized by federal law…. When a Member claims legislative privilege by proffering an "ambiguously legislative" act, as the Congresswoman does here, courts must consider the "content, motive, and purpose" of the act to determine whether immunity attaches.

Because I believe the context surrounding the contact between Congresswoman McIver and V-2 demands closer scrutiny than the majority's analysis affords, I part from its treatment of Count Two. I believe the District Court determined correctly that her acts were ambiguously legislative …. I would vacate its denial of her motion to dismiss Count Two and remand for additional fact-finding to determine whether she shoved him gratuitously, intending to inflict harm, or merely made incidental contact with V-2 in an effort to re-enter the facility that federal law authorizes her to inspect….

The post Prosecution of Congresswoman for Assaulting and Impeding Federal Officials at ICE Delaney Hall Detention Facility Can Continue appeared first on Reason.com.

Businesses might not always want to share every detail about the products or services they offer. But when the government requires those businesses to speak truthfully about their offerings, the First Amendment typically allows for that kind of disclosure requirement. "Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the 'marketplace of ideas.'"

That principle resolves this case. The State of New York requires social-media companies to disclose certain aspects of their content-moderation policies. X Corp. wants to share less of its policies than New York requires, so it invokes the First Amendment to avoid New York's requirement. But the First Amendment poses no obstacle to New York's law. Here, more speech—like sunlight—is "the best of disinfectants." …

The [challenged] Act … it requires a "social media company" to "post terms of service for each social media platform owned or operated by the company in a manner reasonably designed to inform all users of the social media platform of the existence and contents of the terms of service." X Corp. refers to this requirement as the "Terms of Service Requirement." Under the Terms of Service Requirement, the "terms of service" publicly posted must "include … contact information for the purpose of allowing users to ask the social media company questions about the terms of service; a description of the process that users must follow to flag content, groups, or other users that they believe violate the terms of service, and the social media company's commitments on response and resolution time; and a list of potential actions the social media company may take against an item of content or a user." …

[T]he Act [also] requires social-media companies to semiannually "submit" to New York's "attorney general a terms of service report," which X Corp. refers to as the "Terms of Service Report." The Terms of Service Report, which the "attorney general shall make … available to the public in a searchable repository on its official internet website," must include several items, such as a platform's "current version of the terms of service" and "a complete and detailed description of any changes to the terms of service since the previous report." X Corp. takes aim at only some of the items to be included in the Terms of Service Report. It calls those items the "Content Category Report Provisions."

Under the Content Category Report Provisions, the Terms of Service Report must include:

[c] A statement of whether the current version of the terms of service defines each of the following categories of content, and, if so, the definitions of those categories, including any subcategories:
[i] hate speech or racism;
[ii] extremism or radicalization;
[iii] disinformation or misinformation;
[iv] harassment; and/or
[v] foreign political interference.

[d] A detailed description of content moderation practices used by the social media company for that platform, including, but not limited to, …
[i] any existing policies intended to address the categories of content described in paragraph (c) of this subdivision ….

[e][i] Information on content that was flagged by the social media company as content belonging to any of the categories described in paragraph (c) of this subdivision, including all of the following:
[A] the total number of flagged items of content;
[B] the total number of actioned items of content;
[C] the total number of actioned items of content that resulted in action taken by the social media company against the user or group of users responsible for the content;
[D] the total number of actioned items of content that were removed, demonetized, or deprioritized by the social media company;
[E] the number of times actioned items of content were viewed or heard by users;
[F] the number of times actioned items of content were shared, and the number of users that viewed or heard the content before it was actioned; and
[G] the number of times users appealed social media company actions taken on that platform and the number of reversals of social media company actions on appeal disaggregated by each type of action.

And in the Terms of Service Report, "[a]ll information required by" Section 1102(1)(e)(i) "shall be disaggregated … " [by, among other things, the categories such as hate speech, disinformation, etc.]

Central to the parties' dispute is whether what is known as "Zauderer scrutiny" applies, under which "regulations requiring commercial disclosure of purely factual and uncontroversial information about the terms [through] which services will be available may survive constitutional scrutiny if they are reasonably related to the State's interest in preventing deception of consumers and are not unjustified or unduly burdensome." Zauderer scrutiny, the Second Circuit recently explained, "is more relaxed than ordinary intermediate or strict scrutiny." That is because the "mandated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual liberty interests," and instead "promotes" and "[p]rotect[s]" the "robust and free flow of accurate information" animating the First Amendment. "In such a case, then, less exacting scrutiny is required" than intermediate or strict scrutiny….

Zauderer scrutiny "applies to regulations on commercial speech that require" a speaker to "state purely factual and uncontroversial information about the goods or services the speaker may offer." … "[W]hile the core notion of commercial speech is speech which does no more than propose a commercial transaction," even speech which does not itself propose a commercial transaction may still be deemed commercial "based upon a number of factors, including whether the speech is an advertisement, whether the speech references a specific product, and whether the speaker has an economic motive." …

[T]he disclosure of information "in connection with a proposed commercial transaction" is "clearly commercial speech." For instance, disclosing a fast-food item's calorie content "in connection with" that item's "sale" is commercial speech. So too with disclosing to "consumer debtors … basic information about bankruptcy" when dealing with "a debt relief agency providing bankruptcy assistance." And in the social-media context, the Second Circuit has explained, the disclosure of "content moderation policies" is sufficiently connected to "the terms of the commercial transaction between the platforms and users" to be commercial speech. By contrast, a social-media company's "opinions about and reasons for those policies" are not commercial speech….

[T]he Content Category Report Provisions simply require the disclosure of parts of X Corp.'s content-moderation policies …. The Content Category Report Provisions require a "statement of whether the current version of the terms of service defines" content categories like hate speech, racism, disinformation, or misinformation at all, and "if so," what the company's "definitions of those categories" are. On its face, then, Section 1102(1)(c) does not require a platform to affirmatively define these terms if it does not already have a definition, nor does the provision require a platform to explain the reasons for, or otherwise opine on, any definition it may have…. The Content Category Report Provisions further require a "detailed description of content moderation practices" including "any existing policies intended to address" those categories. Here, too, this provision just requires disclosing existing policies, not the reasons for or opinions about those policies…. [And] if X Corp. "does not currently have existing policies for moderating" certain content categories "based on" X Corp.'s "own understandings of these terms," X Corp. "can comply" with the Content Category Report Provisions "by simply disclosing that no content was flagged or actioned falling into these categories."

Indeed, as X Corp. freely admits in its Complaint, the Content Category Report Provisions do "not force X [Corp.] to adopt and regulate" content categories like "'hate speech,' 'racism,' 'extremism,' 'misinformation,' or 'disinformation.'" They merely "requir[e] public disclosure of the content-moderation policies" it already "adhere[s] to." Simply put, X Corp. "can adopt whatever policies [it] choose[s]," including none at all; under the Content Category Report Provisions, X Corp. "just ha[s] to disclose" any policies it adopts….

Because the Content Category Report Provisions "regulat[e] … commercial speech," for Zauderer scrutiny to apply, they must also "require" X Corp. to "state purely factual and uncontroversial information" about its "services." …

The disclosures here are purely factual: the Content Category Report Provisions "merely require[] social media networks to publicly disclose their content moderation policies, whatever those policies may be, and contain[] no requirement that those policies … specifically address" any particular content categories "as defined by the statute." In other words, disclosing "content moderation policies require[s] only that social media networks make certain truthful statements concerning information material to the consumer." …

Such disclosure is also uncontroversial. Although X Corp.'s content-moderation "policies themselves might be controversial, the fact that they are what they are is not." The Content Category Report Provisions care not a whit about whether, let alone how, a social-media company actually regulates content categories like hate speech, racism, or extremism. Because they are "truly agnostic about the substance of the content moderation policy, social media networks are not required to adopt any particular policy or to address any particular category of speech—unless the[ networks] want to."

X Corp. challenges this premise. It complains that any disclosure would "generate public controversy," "invariably leav[ing] some set of users dissatisfied," meaning that the Content Category Report Provisions "presuppose[]" that the compelled disclosures are "controversial." But this complaint turns the Zauderer framework on its head: the exact same could be said of any compelled commercial disclosure. When facing the menu board at Burger King, a consumer may be shocked at how many calories are in a Whopper, and seek the Sweetgreen next door; a different consumer, hoping to fill up for the day, may wish for more calories, and head to Kentucky Fried Chicken for an eight-piece bucket; still a third may find the Whopper just right. None of that means that disclosing the number of calories in a Whopper is controversial….

Because Zauderer scrutiny applies, the Content Category Report Provisions "pass constitutional muster if reasonably related to the State's interest in preventing deception of consumers," or "its equivalent, the non-disclosure of information material to the consumer," and "are not unjustified or unduly burdensome." They satisfy this standard. "[C]ompelling disclosure of content moderation policies without any requirements as to the scope or content of those policies … ensure[s] that users are fully informed about the terms of their engagement with a social media network, enabling them to make more informed choices about where they spend their screen time and how to interpret the content they find on a given social media network." …

The court also held that the law wasn't preempted by § 230, because it doesn't actually forbid or mandate any content moderation.

The post Court Upholds N.Y. Law Mandating Platforms Post Terms of Service and Report How Content Moderation Policies Have Been Enforced appeared first on Reason.com.

Starting with legislation signed by New York then-Governor Andrew Cuomo in 2022, eleven states have enacted "Firearms Industry Responsibility Acts." The statutes subject firearms retailers and manufacturers to tort lawsuits for any action that is not "reasonable." The National Shooting Sports Foundation, the trade association for the firearms industry, filed a facial challenge, arguing that the statute was void for vagueness. The Second Circuit disagreed, pointing out that "reasonable" is used as a legal standard in many contexts. National Shooting Sports Foundation v. James, 144 F.4th 98 (2d Cir. 2025). But what does "reasonable" mean in the new liability acts?

A grocery store knows that its reasonable duty of care to invitees includes promptly cleaning up spills so that customers do not slip and fall. The grocery store's reasonable duty does not include monitoring the weight of its customers and barring obese customers from buying high-calorie low-nutrition foods. The plaintiffs' tort lawyers who have, in a sense, helped shape and define grocery stores' reasonable duties are not morally opposed to grocery stores.  They are not working towards a society in which there is no private ownership of food. They do not aim for a world in which the only food is what the government chooses to provide and in which the only way to eat is to line up at a government mess hall — such as in Cuba, or in China during the Great Leap Forward of 1958–62.

Contrast grocery store litigation with firearms litigation. On the latter, many advocates do seek the eradication the entire line of businesses. In the words of Mrs. Gabrielle Giffords, leader of the eponymous lobby: "No More Guns. Gone." Philip Elliott, No More Guns. Gone': Why Gabby Giffords Isn't Giving Up, Time, Apr. 26, 2023.

As used by the gun control lobbies that created and pushed for the "industry responsibility" statutes, what does "reasonable" mean?

That is the question addressed in a new Working Paper from the University of Wyoming's Firearms Research Center. (I am a Senior Fellow at the Center.) Del Schlangen, who is a recent graduate of Denver University's Sturm College of Law, and was my intern this subject, investigated how gun control groups use thee word "reasonable." His results were published this week in his monograph Use of 'Reasonable' in Gun Control Advocacy (Firearms Rsch. Ctr., Working Paper No. 2026-8).

He finds that "reasonable" as defined by gun control groups is simply their word of approval of all the restrictions and prohibitions they favor. Schlangen's 58-page monograph begins with a three pages of summary, and then provides a representative catalogue of 170 written uses of "reasonable" by gun control advocates. He concludes:

The very advocates who assure courts that the industry duty is "well understood" (A80) or known (A81), and who assure the public that "reasonable controls" gives the industry "clear guidance" (A113) have, for nearly half a century, used "reasonable" to include banning all handguns, banning most modern rifles, banning the majority of magazines, and banning the carrying of any arm for self-defense. All lesser types of gun control are also declared to be "reasonable." Because "reasonable" means whatever the gun control lobbies desire at the moment, the word does not provide a fixed and ascertainable standard in the gun control context.

The post What Is "Reasonable" Gun Control? appeared first on Reason.com.

Some short excerpts from the long Ganz v. Nassau County, decided Monday by Magistrate Judge James Wicks (E.D.N.Y.):

The Plaintiffs are residents of Nassau County, New York and have held New York State pistol licenses since 2020. The licenses were issued to Plaintiffs by the NCPD PLS [Pistol License Section]….

In February of 2024, the Plaintiffs' daughter, who was enrolled in the SUNY Old Westbury College …, was admitted to a Massachusetts hospital for mental health treatment. In September 2024, a patient at the Massachusetts hospital contacted the SUNY school to report that Plaintiffs' daughter had drawn threatening images. Plaintiffs' daughter was then transported by the NCPD to Nassau University Medical Center. Plaintiffs' daughter informed the police that the picture was not depicting any type of shooting or threat.

The SUNY college and its police force, after having been informed of the accusation, handled the school-threat investigation. However, NCPD officers responded to Plaintiffs' home to ascertain the daughter's condition….

Plaintiffs came to [Nassau County Police Investigator] Cafarella's attention on September 18, 2024, after beginning his review of a police incident report concerning the Plaintiffs' daughter. This was a result of Nassau County being notified by SUNY Old Westbury Administration that Plaintiffs' daughter was accused of drawing disturbing pictures of mass shootings….

Cafarella reviewed a written report indicating that a supervisor from the 1st Precinct verified that Plaintiffs' weapons were secured in a safe and that their daughter did not have access to them. The report also indicated that Plaintiffs were pistol license holders, and that they "refused to surrender" their weapons. A lieutenant in the NCPD Homeland Security Unit, who was part of the daughter's investigation, advised the PLS that since there was "no direct message threatening a shooting," he saw no issue with Plaintiffs remaining in possession of their secured firearms.

Despite that, Cafarella considered Plaintiffs' daughter to be a member of Plaintiffs' household, suspended Plaintiffs' pistol licenses under the direction of then-Sgt. Russell of the PLS. This suspension was due to a "volatile mental situation" in Plaintiffs' house where a household member was hospitalized for mental health treatment, and because the Plaintiffs failed to notify the PLS of the hospitalization. Defendants dispute the last sentence to the extent that it suggests [there] were no further reasons for suspension, "which also arose from the totality of circumstances under administrative review, including Plaintiffs' decision to place their daughter in an inpatient program and safeguard their weapons outside Nassau County."

At no time during Cafarella's investigation between September 2024 and present date was it ever alleged that Plaintiffs' firearms were accessible by anyone other than themselves. After Plaintiffs provided Cafarella with photos of the biometric safes that contained their weapons, Cafarella was satisfied that Plaintiffs' weapons were properly stored. Cafarella did not speak with Plaintiffs' daughter or the girl who made the accusation as a part of his investigation….

Cafarella required Plaintiffs to obtain a "letter of no objection" from their daughter's treating psychologist which stated their daughter's actual diagnosis. It had to also state that the doctor was aware that Plaintiffs hold pistol licenses and that the doctor had "no objection to firearms being in the house." Cafarella testified that the daughter's mental state was relevant to the PLS review. Cafarella also testified that the school-threat incident and public safety concerns were issues that the PLS sought to address as a part of its review….

On October 16, 2024, and October 19, 2024, Plaintiffs surrendered their firearms to federal firearms licensee ("FFL"), Dark Storm Industries …. Plaintiffs were unable to possess their handguns or purchase new handguns until the PLS lifted the suspension of their pistol licenses.

Cafarella testified that even if Plaintiffs' daughter is only at the house a couple of times a month, there was still a concern as to whether she can gain access to Plaintiffs' weapons. However, Cafarella also testified that he did not consider Plaintiffs to be "dangerous" people or "… threats to public safety." Cafarella continued Plaintiffs' suspension because the PLS was "waiting to see what comes of [the daughter's] treatment and if there [were] any further incidents."

In March of 2025, Mr. Ganz informed Cafarella that he was unable to obtain a letter from their daughter's treating physician as requested. Cafarella then updated then-Sgt. Russell and together, they reviewed the original documents and decided to wait a number of months before reinstating the license. Cafarella explained that there is not a concrete timeline for reinstating licenses. (Id. at Rather, the duration of the suspension is based on what both the investigator and supervisor feel comfortable with and is viewed on the totality of the circumstances….

In April of 2025, Cafarella recommended to then-Sgt. Russell that Plaintiffs sign an acknowledgement of wrongdoing as a condition of having their licenses reinstated. Through counsel, Plaintiffs informed Cafarella that they would not sign any such form. Seven months later, on November 20th and 21st of 2025, Plaintiffs were issued a "verbal admonishment" for failing to notify PLS of police contact within 3 business days. Only after that, Ms. Ganz's pistol license was reinstated on November 20, 2025, and Mr. Ganz's license was reinstated on November 21, 2025….

[T]he PLS maintained Plaintiffs' suspensions on the grounds that they failed to submit a letter from their daughter's mental-health specialist, failed to provide information about their daughter's mental health history, and concerns surrounding Plaintiffs' prior application responses…. Notably, the suspension of a pistol license stemming from a similar case-by-case review was at issue in Wysocki v. Nassau County (E.D.N.Y. 2026). In Wysocki, the plaintiffs' firearm licenses were suspended after they failed to provide letters from their daughter's mental health specialists and purchase particular kinds of safes to store their weapons. The court held that the criteria for reinstating the plaintiffs' licenses did not stem from any law or policy, but from the defendants' own determination which was unsupported by any historical analogue…

Here, Defendants likewise fail to identify a single historical analogue to support this case-by-case review. Their opposition is devoid of any justification that stems back to other consistent historical traditions or case law to draw from. In short, Defendants have failed to carry their burden under Bruen….

Defendants cannot automatically suspend a license when it is based on a cohabitant's existence of a volatile situation and not that of the licensee. There is no historical analogue. Cafarella himself testified that he did not believe that Plaintiffs were dangerous people, nor did he find that they were threats to public safety. Furthermore, Cafarella found that Plaintiffs' weapons were securely stored….[T]he reasonable inquiry that a licensee is of good moral character is not connected to a cohabitant's mental health circumstances….

Defendants failed to overcome the constitutionally protected presumption of the Second Amendment ….

The court therefore allowed plaintiffs' damages claim to go forward against defendants in their official capacity.

Amy L. Bellantoni (The Bellantoni Law Firm, PLLC) represents plaintiffs.

UPDATE 8/26/2026 1:45 pm: I originally wrote in the headline, "Suspension of Couple's Gun Rights Because Their College Student Daughter Allegedly Made Threats Violated Second Amendment." I think that's accurate, but I changed "allegedly made threats" to "drew allegedly threatening images" to provide more detail.

UPDATE 8/26/2026 9:50 pm: Jonathan Goldstein has a forthcoming article on this subject, Guilty by Association: The Second Amendment and the Limits of Derivative Disarmament; the abstract:

Four recent cases—two in New York, one in New Jersey, and one in Wisconsin-share a single theory: that the government may disarm a law-abiding citizen not for anything he has done, but because of the status, dangerousness, or vulnerability of someone with whom he lives. This Article calls that theory derivative disarmament and argues that it is categorically unconstitutional.

After Bruen and Rahimi, the government must match any disarmament to a historical tradition, and the only tradition the Supreme Court has found reaches the dangerous individual himself-found dangerous, by a court, for a limited time. No founding-era regime disarmed a man for his household's condition; the closest analogue, the frankpledge, imposed a duty to produce the wrongdoer, never a forfeiture of the innocent's arms. Two decisions from the Court's most recent Term supply the measure. Wolford v. Lopez fixes the three inquiries a proffered analogue must survive, and the tradition these states invoke-disarming the dangerous-survives the first two and fails the third: it burdens a different person, on a different showing, for a different reason. United States v. Hemani warns that a power to "designate any group as dangerous" would "risk allowing it to" "quickly swallow" the Amendment. The

Article confronts the hardest version of the state's case—that a cohabitant's circumstances may be folded into a storage or character inquiry about the applicant himself—and shows it to be an associational penalty under a nominally neutral label. It then meets the authority against it: United States v. Huet, the scholarship of Blocher and Wilson, a 2025 Massachusetts decision keyed to a household under a statutory clause since repealed, and In re Clark, the one decision squarely sustaining derivative disarmament. Most are cases about the applicant's own conduct or about an order already entered against someone dangerous; the two that do reach status reached it only through statutory text since narrowed (Dwiggins) or by a methodology Bruen displaced (Clark).

The Article proposes a bright line: the state may disarm the dangerous actor directly, but it may never disarm Person A for Person B's status—and an access finding must rest on the applicant's own act or stated intention, never on a shared address. The rights of the Bill of Rights are personal, and they are lost, if at all, only for what their holder has himself done.

The post Suspension of Couple's Gun Rights Because Their College Student Daughter Drew Allegedly Threatening Images Violated Second Amendment appeared first on Reason.com.

Federal courts disfavor pseudonymous litigation. Such litigation "'undermines the public's right of access to judicial proceedings' because 'the public has an interest in knowing the names of litigants, and disclosing the parties' identities furthers openness of judicial proceedings.'" "Nevertheless, district courts may, in their discretion, allow pseudonymous litigation because 'privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation.'" …

[T]he types of personal intimate information justifying anonymity for litigating parties have typically involved such intimate personal matters as birth control, abortion, homosexuality, or the welfare rights of illegitimate children or abandoned families." The subject of Plaintiff's suit—Defendant David Gozal's alleged retaliation against Plaintiffs—is not nearly as sensitive….

The Court finds that Plaintiffs have a credible fear of retaliation. A letter they attached to their Reply supports their claim that Mr. Gozal retaliates against critics and whistleblowers through his control of Marshall faculty. [The letter appears to be from physician assistant students at the medical school. -EV]

But the Court is not persuaded that anonymity would protect Plaintiffs from such retaliation. Plaintiffs' Complaint includes several details about Plaintiffs' father. See ECF No. 1, Compl. ("The Students' father had served at Marshall's Joan C. Edwards School of Medicine for more than twelve years."); id. (["]His signature achievement was the COBRE (Center of Biomedical Research Excellence) grant, awarded by the NIH. At Marshall, the COBRE grant supported obesity-related biomedical research …."); id. (stating Plaintiffs' father was Marshall's "Vice Dean for Research, Vice Dean for Graduate Education, and Chair of the Department of Clinical and Translational Sciences."). This information makes it easy to identify Plaintiffs' father through an internet search. For a Marshall student or faculty member, from whom Plaintiffs fear retaliation, identifying Plaintiffs would therefore be straightforward.

Since Plaintiffs' identities are already discernable, proceeding anonymously would confer minimal protection. Further, Plaintiffs' allegations suggest that many Marshall faculty and students are already aware of the dispute between Plaintiffs and the medical-school administration.

Plaintiffs argue that, even if a "determined reader" can identify Plaintiffs, Plaintiffs still have an interest in keeping this litigation out of "background checks, residency application searches, and employer screenings." But a lawsuit showing up in future educational or employment screenings is part of the "annoyance and criticism that may attend any litigation." Such annoyance is not an adequate justification for proceeding anonymously….

The Court [also] agrees it would be "unfair to force Dean Gozal to defend himself publicly, while allowing Plaintiffs 'to hide behind a shield of anonymity ….'" … "[I]t is a matter of 'basic fairness' that a private-party defendant's accusers participate in the suit under their real names." …

J. Ben Shepard and Michael J. Farrell (Farrell & Farrell PLLC) represent Gozal.

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Shortly after Obergefell was decided, it became clear that transgender rights was simply the next stop on the train. But the pairing of LGB and T never made sense to me. Gays and lesbians urged society to accept them as they are. Transgender people compelled society to accept they as they are not. More pressingly, transgender rights advocates focused nearly all of their efforts on children: bathrooms in school; teachers telling students to lie to their parents about secret transitions; medical procedures for minors; biologically male athletes in sports; and so on. For generation, gay men were targeted for grooming young children. Growing up in New York City in the 1990s, I heard nonstop jokes about gay priests and Boy Scout troop leaders abusing kids. Yet the T in LGBT focused on the kids.

The issues for gays and lesbians always seemed quite different. I wondered whether gay rights groups were quietly concerned about this merger of LGB and T, but didn't speak up for fear of being labeled transphobic. I think the other shoe has finally dropped.

The Log Cabin Republicans will no longer advocate on transgender issues. Ross Hemminger, the President of LCR, published an essay in Townhall discussing the issues.

In 2015, the Log Cabin Republicans Board of Directors voted to add the "T" under the umbrella of our mission — out of a belief that all adults should be allowed to pursue their own happiness, free of government interference, as long as it did not impede on the inalienable rights of others.

At the time, we did not believe that we would find ourselves where we are today. The transgender movement has ceased focusing on adults at all — nearly all of their efforts and those of their aligned special interest groups focus on minors. They push schools to teach radical gender ideology; they want biological men in women's sports regardless of the consequences; perhaps most offensively, they support gender reassignment treatments for minors, often without the knowledge or consent of the parents, knowing full well these treatments are mostly irreversible.

And Hemminger recognizes how support for gay marriage is declining because of transgender ideology.

Gay men and women are losing public support across the country, and support for gay marriage and other once-widely accepted rights is eroding. Why? Because many voters today weren't alive or cognizant of the politics of gay marriage winding its way through the courts and gaining ground in public opinion. Their view of the gay community is based on today's radical transgender activists with their unnecessary and discomfiting focus on America's youth.

That is why, after significant discussion with our membership, our Board of Directors voted to refine Log Cabin Republicans' national advocacy focus to concentrate specifically on issues of sexual orientation and conservative values — in other words, we are an LGB advocacy organization, as our founders envisioned and as our moral center calls us to be.

The New York Times quotes Danny Stevens, who previously served as the President of the Houston Chapter of the Log Cabin Republicans:

Danny Stevens, a former president of the Log Cabin Republicans chapter in Houston, said he thought the national group had made a smart move by abandoning trans rights issues, which it embraced in 2015.

The issue was a nonstarter for many Texas Republicans.

"At some point, I just kept thinking, why are we spending all this time convincing Republicans that we're not crazy while associating ourselves with a movement pushing things most of them are never going to accept?" Mr. Stevens wrote in a text message on Tuesday.

He wishes the national Log Cabin group had abandoned trans issues sooner, he said. "I actually think it was necessary," he said, if the group "wants to keep making progress within the Republican Party." 

I spoke at Danny's chapter in Houston last year about Obergefell. I explained that regardless of what one thinks about same-sex marriage, Justice Kennedy's decision was legally indefensible, and a shaky foundation on which to build the institution. The audience was respectful, even if they disagreed. During Q&A, there were a number of questions about transgender rights, and it was clear to me which way the members were trending.

Danny actually stepped down from leadership, largely due to LCR's stance on the transgender issue. I asked Danny if I could publish his letter, and he gladly shared it. I think Danny makes some important points here that are worth considering:

First, I want to say that I love LCR and want the best for our chapter and the entire org. I'm also writing this as Danny. My opinions may/may not represent the singular voice of our Houston board.

I'm growing more concerned and frustrated that the trans issue is not only harming us, but it's undoing much of the work we've accomplished as a chapter and as an organization.

I plan to write a more formal letter, but I needed to get my initial thoughts off my chest now.

My belief is that we need to take a leadership position on this issue, one we have not yet taken. Yes, we have echoed the mainstream Republican positions on men in women's sports and gender transitioning for minors. But this isn't far enough.

Gender dysphoria has been and still is a clinically diagnosed mental illness. From where the illness roots and determination on appropriate treatment is above my paygrade. However, affirming this condition as an equal to sexual orientation is no longer something I'm willing to do.

What someone chooses to do with their own bodies is up to each person. But our willingness as a society to affirm their decision as healthy or normal is not up to the trans movement.

We have many allies in the local Republican Party who have personally and publicly expressed concerns to me about the effects the trans movement has on the greater LGB population. I don't disagree with them.

Furthermore, all of the hardwork, energy and resources our chapter has invested in making gains towards being recognized by the Republican Party of Texas is completely undone by a stream of headline news stories about trans individuals and despicable crimes they are committing at seemingly disproportionate rates relative to their population. Note that I realize there are good and decent trans people. But this doesn't prohibit us from stating what broader issues we are facing as an organization or as a society.

Every time I utter the acronym LGBT, I shutter knowing I'm turning off many in the audience that would otherwise support us. The very usage of this term immediately paints a picture in peoples' minds that is not valid or fair to gay men like all of us in this email.

To me, this is more of an economic argument than anything else. How many gay and lesbian prospective or current members are we losing because of our unwillingness to state what many of us are thinking? Are we really willing to lose 20 gay men to attract 1 trans member?What ratio is acceptable to LCR National?

Let's look at chapter-level contributions in time, labor and money. For our chapter, 99% of this comes from gay men, not our two trans members. In fact, one of our trans members is disenchanted with the Republican Party due to Pres. Trump's policies on trans individuals, primarily ones in the military. I suspect they will no longer be a member if they haven't already stopped membership payments.

Charlie Kirk's assassination was a real turning point for me. It's clear that we have a lot of healing to do as a nation. And we have a lot of soul searching to do as an organization. This starts with being honest with ourselves and with each other.

I'm not willing to continue pouring my heart into a cause that is continually undermined. Really, why bother?

I'm starting to ask myself if my time, energy and passion is better spent outside of LCR. I would bet others are probably asking themselves the same question.

This is a defining issue for the future of LCR. I fear it could really be our undoing unless we face this challenge head on.

Sincerely,
Danny Stevens

As I wrote in April in City Journal, the tide has turned. At some point, even progressive gay rights groups may decide to reconsider the merger of LGB and T.

The post A Wall Of Separation Between LGB and T appeared first on Reason.com.

It is often said that A.G. is short for "Aspiring Governor." Such was the case in Oklahoma, where Attorney General Gentner Drummond ran for the Republican Gubernatorial Primary. The AP has now called the race, and Drummond lost by less than a percentage point.

I usually do not comment on political races, but Drummond deserves some heat.

First, Drummond argued that his own state's charter school program was unconstitutional. He litigated St. Isidore up to the Supreme Court where the case was affirmed by an equally-divided court. President Trump even mentioned this case in his social media endorsement of Drummond's opponent: "He even SUED to BLOCK a religious based charter school strongly supported by my Administration — Very troubling for Educational Freedom, and an outright attack on Christianity!"

Second, Drummond hired his lifelong friend to review the capital conviction of Richard Glossip. Drummond then asked the Oklahoma Court of Criminal Appeals to vacate the death sentence. That court refused to revisit the case. Ultimately, the Supreme Court ruled that the OCCA had misinterpreted federal law. There were so many problems with that case. But even more troubling, as my colleague Paul Cassell pointed out, is Drummond's own conduct. Justice Thomas wrote in his dissent that Drummond "collusively excluded . . . highly relevant evidence" from the record.

To add insult to injury, Drummond also seemed to support Justice Gorsuch's disastrous decision in McGirt. Based on the electoral map, Indian country seemed to vote strongly against Drummond.

As the returns stand now, only 2,000 votes separate Drummond and his opponent. I'd like to think that some of those votes are due to the positions Drummond took before the courts.

The post Oklahoma Attorney General Responsible For Two Terrible Supreme Court Decisions Loses Gubernatorial Primary appeared first on Reason.com.

Before the Court is an action involving claims of patent infringement between Plaintiff Disruptive Resources … and Defendants Ballistic Barrier Products Inc. and Mayday Security Solutions LLC …. After Plaintiff's counsel disclosed to the Court that the previously filed Joint Claim Construction Brief … featured multiple errors due to his use of generative artificial intelligence ("AI"), the Court ordered counsel to show cause in writing as to why the Court should not impose sanctions for counsel's conduct pursuant to Federal Rule of Civil Procedure 11 ….

In counsel's letter to the Court, counsel described the events that led to his disclosure of inaccuracies attributable to generative AI. Portions of counsel's reply brief in support of Plaintiff's claim constructions "included an erroneously proposed construction that deviated from the construction of the terms Plaintiff had advanced through the claim construction process[.]"

Counsel stated that he used the AI system "Strongsuit" to generate an initial outline of Plaintiff's reply brief and to pull statements from a deposition that supported Plaintiff's position on claim construction. Counsel used directed prompts to complete an initial draft of the reply brief that integrated extrinsic evidence mentioned in the deposition.

When editing the draft, counsel "jumped from section to section" and mistakenly "believed [he] had edited the entire brief, when in reality, [he] had missed the 1-page section" that proposed an incorrect construction. Counsel admits that he failed to conduct a final review of the entire brief and "overlooked some of the arguments being made."

Upon discovering the erroneous statements in the brief, counsel notified opposing counsel and proposed amending the Joint Brief to implement footnotes to address the erroneous proposed constructions. The Parties later filed a [Joint Letter] disclosing these issues to the Court. Counsel argues that his actions did not violate Rule 11 or any rules of professional conduct because the reply brief was not presented for an improper purpose, the claims and legal contentions were supported by authentic existing law, and all factual contentions were supported by evidenceCounsel suggests that his errors were "more akin to taking litigation positions that are ultimately borne out to not be adopted by the Court."

The Court observes that the Joint Letter identified that two sections of the Joint Brief contained a concluding statement that proposed an incorrect claim construction, and a third section was withdrawn entirely because it "contained more pervasive errors." Plaintiff sought to strike the problematic section of its reply brief, causing Defendants to also strike their subsequent briefing that responded to the inaccurate AI-generated arguments put forth by Plaintiff. This demonstrates that counsel's erroneous constructions not only impacted the accuracy and strength of Plaintiff's legal arguments, but caused opposing counsel to spend time responding to erroneous arguments that have now been struck.

The incorporation of the use of generative AI in the legal field is growing exponentially, and this is exemplified by counsel's admitted use of large language models in his legal practice to ease the workload on his smaller law firm. Nevertheless, "when using AI, litigants must still strictly adhere to all rules of professional conduct." In both his letter to the Court and statements made during the hearing, counsel expressed regret over the unfortunate outcome of his use of AI without thorough review and recognized the importance of maintaining a higher standard of diligent lawyering than what led to the erroneous briefing.

The circumstances of this case are different compared to other instances when the use of AI led to legal filings with hallucinated case citations or fictitious judges. See Mata v. Avianca, Inc. (S.D.N.Y. 2023) (an attorney "submitted non-existent judicial opinions with fake quotes and citations created by the [AI] tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question."). In this case, counsel took full responsibility for his mistakes, was not evasive, and prioritized candor to the Court and opposing counsel by disclosing the errors quickly. Contra Mata (finding that the attorney "knew before making a submission to the Court that the full text of [a fake case] could not be found but kept silent.").

The Court expects that these events and this Opinion shall serve as a cautionary warning and learning experience for counsel moving forward. The Court warns counsel that any future incidents involving AI mistakes in this case may result in sanctions.

Upon consideration of the circumstances as described by counsel, and his appreciation for the gravity of filing erroneous legal arguments drafted by generative AI without proper review, the Court declines to sanction counsel for his conduct….

The post "Counsel Took Full Responsibility for His Mistakes, Was Not Evasive, and Prioritized Candor to the Court and Opposing Counsel" appeared first on Reason.com.

Pudans and [Defendants] the Donahues are next-door neighbors…. According to Pudans, on the Fourth of July in 2017, fireworks set off from the Donahues' property damaged her swimming pool….

[T]he Donahues … argue Pudans's claim that the Donahues' fireworks burned a hole in her pool liner could not survive summary judgment without expert testimony on causation. In response, Pudans points to her affidavit that detailed her experience as a swimming-pool owner. There, she testified she observed there were no "black spots" and no damage to the liner on July 4, 2017, before the fireworks; she witnessed fireworks from the Donahues later that day; and the next day, she found "black marks" and damage to the pool liner. Spent fireworks were removed from her pool filter.

The gist of the Donahues' argument is that swimming pools are full of water, water usually puts out fires, and therefore you need an expert to prove flaming fireworks debris could burn a pool liner that has water above it. And to their point, the Donahues obtained an expert—one that apparently has a colorful personal history with Pudans—who will testify he does not believe fireworks can burn a pool liner through approximately four feet of water.

Under our supreme court case law, "Expert testimony is not necessary to establish causation in all negligence cases." "On the other hand, when the connection between the defendant's negligence and the plaintiff 's harm is not within the layperson's common knowledge and experience, the plaintiff needs expert testimony to create a jury question on causation." As the court said on another occasion: "Causation is a question for the jury, save in very exceptional cases where the facts are so clear and undisputed, and the relation of cause and effect so apparent to every candid mind, that but one conclusion may be fairly drawn therefrom."

While not all cases requiring an expert must rise to the level of rocket science, we think resolution of this fact question falls into the category of those that are within the general understanding of a layperson and would not require specialized knowledge or training to resolve. That fire burns is an inference nearly as old as human history, and lay jurors are capable of assessing whether fireworks can burn a swimming-pool liner based on Pudans's expected testimony.

The Donahues are certainly free to put forward an expert disputing her claim based on the water depth. But that makes for a disputed fact—and that is why we have juries….

Madalyn Elizabeth Grask and Angela L. Campbell (Dickey, Campbell, & Sahag Law Firm, PLC) represent Pudans.

UPDATE: A reader adds, "It is well within the scope of lay opinion that water runs downhill," McCoy v. Gustafson, 180 Cal. App. 4th 56, 100 (2009). People know water, not just fire.

The post "That Fire Burns Is an Inference Nearly as Old as Human History" appeared first on Reason.com.

This case is before the Court based on Plaintiff's motion to proceed under a pseudonym. No response is needed. {Even if the motion is not opposed by Defendant (as it appears that it will not be), the Court is not required to grant it.}

Plaintiff has asserted multiple claims against Apple, Inc., related to its design, manufacture, and marketing of the Apple AirTag. The claims are based on a former paramour's alleged use of an AirTag to stalk Plaintiff.

Plaintiff seeks leave to proceed anonymously because the litigation will require the disclosure of intimate aspects of Plaintiff's life (e.g., domestic violence, sexual harassment) related to the stalking. She is also concerned that requiring her to disclose her identity could enable her stalker to locate her, thereby creating a safety risk for her and her minor child.

"A party may proceed anonymously in federal court by establishing 'a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.'" …

"[C]ourts have[, however,] often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" … [T]he circumstances underlying the complaint have [also] apparently already been aired in a state restraining order proceeding….

Plaintiff's speculative concern that identifying herself in this action will provide her stalker "a direct avenue … to confirm her location, continue his surveillance, and further interfere with her safety" can be addressed through a protective order or sealing of specific documents filed in this case. Indeed, courts have denied leave to proceed anonymously in the face of more substantial threats of harm. See, e.g., In re Chiquita Brands Int'l Inc. (11th Cir. 2020) (affirming the district court's refusal to grant anonymity even after paramilitaries "threatened and attacked a named bellwether plaintiff and her family four months after her deposition").

[Moreover,] "[d]efendants have the right to know who their accusers are, as they may be subject to embarrassment or fundamental unfairness if they do not." "[I]f the complaint's allegations cannot be substantiated, 'then anonymity provides a shield behind which defamatory charges may be launched without shame or liability' and it will be [Defendant] (not Plaintiff) who faces disgrace."

The Court did not overlook that another district court granted the plaintiff leave to proceed anonymously in a substantially similar suit. See Doe v. Samsung Elecs. Am., Inc. (E.D. Pa. 2024). That decision is not binding and is not even persuasive because it was decided under the law of the Third Circuit, not the Eleventh Circuit. Additionally, in giving significant weight to the plaintiff's "heightened fear for her personal safety if her stalker were to learn her home address or whereabouts," the court apparently did not consider whether those concerns could be ameliorated by a protective order or sealing documents that contained that information.

The Court also recognizes that plaintiffs in other cases filed against Apple by AirTag stalking victims [in E.D. Va., D. Nev., E.D.N.Y., and D. Ariz] have been allowed to proceed anonymously, but those rulings were in text-only orders that did not contain any analysis. Also, those rulings were presumably not based on Eleventh Circuit law. {There also appear to be numerous other cases in which alleged AirTag stalking victims are not proceeding anonymously, as reflected on the docket of the failed class action against Apple.}

The post No Pseudonymity in Lawsuit Against Apple for Allegedly Enabling Stalking Via AirTags—Other Courts Had Allowed Pseudonymity appeared first on Reason.com.

But we've also published professors from other law schools; professors from other disciplines; authors from other countries; and a few law students or fresh law school graduates whose articles have been accepted through our blind review process. The articles have been cited so far in 14 court cases, over 500 articles, and over 140 briefs. And note that all the articles have only had five years or less to attract these citations.

We also publish quickly (by the standards of academic journals), if that's what authors would like. Several of our most recent articles, for instance, were published 3 to 5 months from when we received them, and that includes the time stemming from the authors revising their articles in various ways (which we certainly allow, if the author is willing to take the time). We have published articles as quickly as a month after we received them, when the author has wanted to move fast.

To my knowledge, many top student-edited journals are shut down for the Fall and Winter (or are about to shut down), and won't review manuscripts until February. That means the manuscripts probably wouldn't be published until the end of 2027, or even later. But if you submit to us now, and want to publish quickly, you can have the article out by the end of 2026.

There are other advantages as well: We offer anonymized feedback from the reviewers whether the article is accepted or rejected; many authors have told us this was very helpful. And when we accept article, it's edited by one of our Executive Editors (Jane Bambauer, Ash Bhagwat, or me), and many authors have likewise told us that the edits, by experienced free speech scholars, are quite useful.

Please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.

All submissions must be exclusive to us, but, again, you'll have an answer within 14 days (though perhaps up to 21 days if it's over Thanksgiving, Christmas, or New Year's), so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:

• Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it's the first article to discuss how case X and doctrine Y interact), please let us know.
• Please submit articles single-spaced, in a proportionally spaced font.
• Please make sure that the Introduction quickly and clearly explains the main claims you are making.
• Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go).
• Each article should be as short as possible, and as long as necessary.
• Like everyone else, we like simple, clear, engaging writing.
• We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.

We publish:

1. Articles that say something we don't already know.
2. Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise.
3. Articles dealing with speech, press, assembly, petition, or expression more broadly.
4. Generally not articles purely focused on the Free Exercise Clause or Establishment Clause, except if they also substantially discuss religious speech.
5. Articles about the First Amendment, state constitutional free speech provisions, federal and state statutes, common-law rules, and regulations protecting or restricting speech, or private organizations' speech regulations.
6. Articles about U.S. law, foreign law, comparative law, or international law.
7. Both big, ambitious work and narrower material.
8. Articles that are useful to the academy, to the bench, or to the bar (or if possible, to all three).
9. Articles arguing for broader speech protection, narrower speech protection, or anything else.

The post 5 Years of the Journal of Free Speech Law, 150 Published Articles appeared first on Reason.com.

You have asked whether 18 U.S.C. § 930(a) … is best read to impose criminal penalties on an otherwise law-abiding individual who carries weapons into a post office for the purpose of self-defense. We would have significant constitutional concerns if Congress had created such a blanket ban on the lawful carrying of constitutionally protected arms into a building frequented by the public since the Founding. But we ultimately need not reach that issue here, as Congress has exempted the "lawful carrying" of firearms or other dangerous weapons "incident to hunting or other lawful purposes." Because carrying arms for self-defense when entering a building held open to the public is a paradigmatic "lawful purpose[]," that exception permits the lawful carrying of constitutionally protected firearms in post offices….

[S]ection 930(d)(3) provides that section 930(a)'s bar against carrying firearms and dangerous weaponry does not apply to "the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes." 18 U.S.C. § 930(d)(3). To fall within this exception with respect to firearms, an individual must satisfy two criteria: (1) the carrying of their firearm must be "lawful"; and (2) the carrying must be "incident to" a "lawful purpose[]," such as "hunting."

The first requirement is relatively straightforward. It excludes, for example, a person who is not legally allowed to carry a gun anywhere…. Under federal law, this exemption would not cover, for example, a person who has been convicted of a felony or a misdemeanor crime of domestic violence, a person who has been committed to a mental institution, or a person who is in the United States illegally. It may also exclude an individual who is forbidden from carrying a firearm in the relevant state because he is not licensed—so long as the licensing regime itself is not constitutionally infirm…

The second requirement is less clear but is best read to cover an individual entering a post office that is open to the public while lawfully carrying a firearm for self-defense. "Incident," used as an adjective, means "occurring or likely to occur esp[ecially] as a minor consequence or accompaniment." In the legal context, "incident" means "depends upon, appertains to, or follows another."

But section 930(d)(3) does not specify whether the "lawful purpose" to which the carrying of a firearm must accompany is the purpose for entering a federal building or the purpose for carrying the firearm. Read in conjunction with background principles of law, we think the better view is that an individual needs both a lawful purpose to be in a federal facility and a lawful purpose to carry a firearm in order for the individual to qualify for the exception in section 930(d)(3), but not necessarily that the two must be related. So understood, an otherwise law-abiding citizen who carries a constitutionally protected firearm into a post office that is generally open to the public would fall within the scope of that exception….

Carrying arms for self-defense when entering a building held open to the public is a paradigmatic lawful purpose…. Unless the property owner has clearly closed the property to firearms being carried for self-defense, such carrying is presumptively lawful. Yet far from closing post offices to firearms, Congress expressly permitted the carrying of firearms incident to any lawful purpose.

Interpreting "lawful purpose" in section 930 to include self-defense in a building held open to the public is also consistent with other rules of statutory construction. For example, take the semantic canons of noscitur a sociis and ejusdem generis. In the Second Amendment context, hunting is often paired with self-defense as an archetypal lawful purpose. See, e.g., 15 U.S.C. § 7901(b)(2) (outlining Congress's purpose of "preserv[ing] a citizen's access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting"). So if an individual who is not legally disabled from possessing a firearm enters a post office that is held open to the public while properly carrying a firearm for self-defense, section 930(d)(3) applies to exempt them from section 930(a)'s carrying ban, as the individual is "lawful[ly] carrying" a firearm "incident to" a "lawful purpose[]." …

This interpretation is further supported by the canon of constitutional avoidance, which "imposes"—at minimum—a "'clarity tax' on Congress" when it legislates in ways that raise constitutional doubts…. Because [§ 930(a)] falls within the plain text of the Second Amendment, the restriction is "presumptively unconstitutional." As applied to post offices that are generally open to the public, we have grave doubts that the government could carry its burden to overcome that presumption by demonstrating the restriction "is consistent with the Nation's historical tradition of firearm regulation." That would be a high hurdle because, for nearly two centuries, there was no ""historical tradition of firearm regulation" in post offices. Moreover, it is unlikely that the government would be able to overcome that hurdle by reference to the "sensitive places" doctrine because ordinary post offices appear to bear no legally significant resemblance to the ""legislative assemblies, polling places, and courthouses" where the Court has accepted that the government may presumptively restrict firearms….

The opinion was written by Lanora C. Pettit, Principal Deputy Assistant Attorney General.

UPDATE 8/25/26, 1:45 pm: Check out also the recently posted The Post Office Was the General Store: Sensitive Functions, Absent Premises, and the Post-Office Carry Ban, by Jonathan S. Goldstein. The Abstract:

Modern law begins from an inverted premise: the armed citizen in the post office is treated as the problem, and the gun-free federal building as the timeless baseline. The history runs the other way.

It is not that the post office sat inside a store and therefore could not be sensitive. At the founding, nearly everything sat inside a store or a tavern: the Congress of the Confederation sat in the French Arms Tavern, the War Office in Fraunces Tavern, and the Supreme Court above an open-air market. The building never carried the rule. What carried the rule was the function. The founding generation designated sensitive occasions rather than sensitive addresses — Delaware in 1776 disarmed "the said elections," and Virginia in 1786 disarmed the man who came before "the justices of any court .. . doing their office" — and no founding-era designation of the mail has been located. There was nothing to designate.

Nor is the omission explained away by the government's ownership of the modern building. The statute the government enforces does not turn on ownership: § 930 reaches a building "owned or leased" by the United States, and when Congress described the archetypal sensitive place in the same section it named a courtroom, a jury room and the chambers of a judge, with no ownership term at all. Title is not the axis. Function is — and the function performed across a post-office counter is retail.

The Post Office Act of 1792 required only that "every deputy postmaster shall keep an office," and the Act of 1825 that "every postmaster" do so — a duty that ran in each case to the man and not to the room; there would be no federal Supervising Architect until 1852, and no division of the Department devoted to post-office quarters until the second decade of the twentieth century; and what that record establishes is not that the sovereign lacked a deed, but what a citizen crossing the threshold was walking into. He was walking into a store.

After New York State Rifle & Pistol Ass'n v. Bruen, the government bears the burden of producing a founding-era tradition that would justify disarming the law-abiding citizen at the post office. It must therefore produce a tradition of disarming people at a place that did what the post office did. This Article marshals the affirmative record — the Postal Service's own institutional history, federal historic-site nominations, the surviving account books of merchant-postmasters, and the practice of a postal system that itself carried, mailed, and guarded arms — and shows that the post office is among the poorest available candidates for a founding-era "sensitive place." The burden is the government's, and on this record it cannot carry it.

The post Justice Department Opines That Federal Law Allows Carrying Guns in Post Offices for Self-Defense appeared first on Reason.com.

My latest installment in SCOTUSBlog calls for the return of circuit riding, with a twist:

Each term the circuit justices would be drawn at random to sit on the lower courts. The justices can pull a number out of a hat. No longer would the same justice preside over the same circuit year-after-year. Let the justices and the lower courts mix and mingle, to get the greatest flavor of how the judicial system works nationwide. Indeed, justices should rotate among the circuits every year to see the widest range of courts, across the fruited plain, with flyover country in the middle.

A more important part of this proposal is that the chief justice will ask each circuit justice to preside over one en banc oral argument of his or her circuit. These sessions could be timed when the justices do not have oral argument at the Supreme Court to minimize possible disruptions.

I also propose that the Justices should keep their home chambers outside of the swamp, and only commute when the Court is in session:

It would be quite feasible for a justice to commute to the Supreme Court for the session days. Indeed, Justice John Paul Stevens spent two weeks of each month from November through April in his Florida home. For all other times, the justice could work in a local chamber at a federal courthouse. Federal law requires circuit judges to reside in the circuit they are assigned to, but there is no similar statute requiring Supreme Court justices to live in Washington, D.C. I think Congress would gladly pay for some travel costs for the justices to spend less time in the capital.

I don't even think a justice would need to purchase an expensive home in Washington, D.C. A justice could also follow the lead of many members of Congress, and use their chambers as sleeping quarters. If it is good enough for Article I, it should be good enough for Article III. (Indeed, on the Marshall court, all of the justices would stay at the same boarding house.)

I'll add that their law clerks should join the justices on the road. There is value in keeping the law clerk's feet planted on the ground. Working in a marble palace can distort any sense of reality. Perhaps law clerks could spend part of the year in the home chambers and part of the year at the Supreme Court. Or some law clerks could spend all of their time in either location. Or perhaps a justice could go to D.C. without any law clerks. In any event, it would serve the justices well to get out of D.C. and see how justice is dispensed across the nation.

If we take the Justices and clerks away from Mount Olympus, they will spend less time with their heads in the cloud.

The post New in SCOTUSBlog: The justices should regularly sit on the lower courts appeared first on Reason.com.

At the end of the term, there were so many blockbusters that two significant immigration decisions largely flew under the radar. Justice Alito wrote the majority opinions in Mullin v. Doe and Mullin v. Al Otro Lado. While I think both cases got the law right, I was troubled by some of the rhetoric that Alito used in Doe. My new essay in Civitas Outlook is titled, "SCOTUS's Immigration Rulings Chastise Trump on Morality."

Here is the introduction:

Last term, the Supreme Court ruled that the judiciary could not review the Secretary of Homeland Security's "determination" to suspend Temporary Protected Status (TPS) for Haitian and Syrian aliens. Mullin v. Doe was split by a right-left 6-3 vote. I think the majority had the better reading of the statute and the Constitution. Yet the Court didn't limit itself to the legal issues presented. Rather, Justice Alito's majority opinion regrettably chastised President Trump's rhetoric and his administration's immigration policies. Indeed, Justice Alito expressed something like remorse for ruling against the immigrants, perhaps in response to the dissent's fear-mongering claims. The Court reached the right result but was wrong to moralize to the President about how to conduct foreign affairs. This straightforward case should have been resolved on legal grounds without the need to virtue signal about immigration.

Ultimately, Justice Thomas was willing to say what the others were not:

Ultimately, something about the majority opinion in Mullin v. Doe is unsatisfying. The Court finds that the administration's decision to terminate TPS status was not subject to judicial review, and that Trump's comments about Haitians eating pets were not "overtly racial." I think the better approach can be found in Justice Thomas's solo concurrence. He observed that if "equal protection principles applied to immigration decisions, much of even our current immigration law would conflict with this Court's modern equal protection doctrine." Why? Because "our immigration laws have distinguished among aliens based on their national origin from the beginning." The government has long favored immigrants from some nations over others, without transgressing the Constitution. This policy should be constitutional.

The Court would have been much better off letting the federal government set its foreign policy with regard to immigration and not moralizing about how Americans—the President in particular—should view migrants. This decision, compounded with the birthright citizenship ruling, reflects a gap between the judiciary and the pressing issue of immigration that continues to divide the country. Hope springs eternal that the Supreme Court can correct course for next term.

To echo Senator Cruz's new book, Justice Thomas is always willing to go further. And as Judge Ho explains in a book review in National Review, going further invariably means standing alone, especially when Thomas takes the unpopular position.

The post New in Civitas Outlook: "SCOTUS's Immigration Rulings Chastise Trump on Morality" appeared first on Reason.com.

Back in 1934, the first Restatement of Torts, set forth a limitation on the common-law privilege of self-defense against battery and similar lawsuits (emphasis added):

The intentional infliction upon another of bodily harm by a means which is intended or likely to cause death or serious bodily harm is not privileged [as self-defense], if the actor reasonably believes that he can with complete safety avoid the necessity of so defending himself

(a) by retreating, if attacked in any place other than his dwelling place, or

(b) by relinquishing the exercise of any right or privilege other than his privilege to exclude intruders from his dwelling place or to prevent himself from being dispossessed thereof or to effect a lawful arrest.

The 1965 Restatement (Second) of Torts continued this. But I'm pleased to say that, while the 2026 Restatement (Third) of Torts: Intentional Torts to Persons § 24 preserves a "duty to retreat" (which does fit with quite a few precedents), it rejects any "duty to relinquish":

Comment i. No duty to relinquish other rights

Restatement Second of Torts § 65(3)(b) broadly stated that an actor lost the right to use deadly force in self-defense, not only when the actor could safely retreat, but also when the actor could safely avoid the need to use deadly force by "relinquishing the exercise of any right or privilege other than his privilege to prevent intrusions upon or dispossession of his dwelling place or to effect a lawful arrest." However, research has disclosed no cases that apply that "any right or privilege" provision, and the provision is unduly broad. Accordingly, this Restatement no longer includes the provision….

[Reporter's Note to] Comment i…. The language from the Restatement Second of Torts, that an actor lost the right of self-defense when the actor could safely avoid the need to use deadly force by "relinquishing the exercise of any right or privilege …," is omitted in this Restatement because research has disclosed no relevant cases addressing those issues and because there are serious questions about the persuasiveness of those very broad provisions.

The provision would seemingly deny an actor the right to use deadly force to prevent an armed robbery, so long as the actor could safely hand over the actor's money instead of using force in self-defense. It would also require the actor to comply with other unjustified demands asserted by the aggressor rather than use defensive force. For example, if the aggressor threatens to use deadly force against the actor unless the actor avoids going to the aggressor's favorite bar, or unless the actor apologizes for seeing the aggressor's girlfriend, or unless the actor begs the aggressor for mercy, that approach would seem to require the actor to comply with the demand rather than use deadly force in self-defense.

That is a questionable result. Indeed, the Commentaries to the Model Penal Code criticize the Restatement's broad language, pointing out: "On its face, this formulation would require submission to an attempted robbery." Model Penal Code and Commentaries § 3.04(4)(d), at 58 (Am. L. Inst. 1985). See also Margaret Raymond, Looking for Trouble: Framing and the Dignitary Interest in the Law of Self-Defense, 71 Ohio St. L.J. 288, 322-323 (2010) ("Imagine that Mary is leaving her home to walk to the grocery store when Tyrant, the neighborhood bully, commands her, 'Don't leave your house. If you do, I'll kill you.' Under the MPC, Mary would be required to obey this direction and stay home if she wanted to retain the privilege of using lethal force in self-defense…."); Hava Dyan & Emanuel Gross, Between the Hammer and the Anvil: Battered Women Claiming Self-Defense and A Legislative Proposal to Amend Section 3.04(2)(b) of the U.S. Model Penal Code, 52 Harv. J. Legis. 17, 30 & n.77 (2015) (requiring person to submit to aggressor's negative demands that person refrain from range of actions "might create a horrible and permanent pattern of severe domestic violence, including offensive, strange, arbitrary, humiliating and depressing demands").

It might be argued, in favor of the Restatement Second's broad provision, that an actor should not use deadly force when the actor could readily avoid causing serious harm by forfeiting a much lesser interest (such as the interest in visiting a bar or in not making an insincere apology). But the weight of that supposedly lesser interest is a matter of dispute. See Raymond, supra (identifying what is at stake in retreat and other cases as important dignitary interests). Also, the broad approach arguably ignores the serious culpability of the aggressor who unjustly forced the defending party to make a difficult choice.

A small number of criminal statutes do include the problematically broad language about relinquishing any right or privilege. See Eugene Volokh, The Right to Defy Criminal Demands, 16 N.Y.U. J.L. & Lib. 360, 392-402 (2022). But research has disclosed no tort-law decisions that apply that language. Two relevant criminal-law decisions exist but they provide ambiguous support. See id.

Other statutes and jury instructions take a position contrary to the Restatement Second's position that, in order to possess the right of self-defense, an actor has a duty to relinquish most rights. North Dakota's criminal statute recognizes a duty not to use deadly force "if it can be avoided, with safety to the actor and others, by retreat or other conduct involving minimal interference with the freedom of the individual menaced." Acceding to an aggressor's demand to hand over money or to remain in one's house is presumably more than a "minimal" interference. See Volokh, supra, at 397 n.119….

I was very glad to see this; the removal may have been prompted in part by an e-mail exchange that I had with the ALI people about this.

Readers might also be interested in the rationale for the preservation of the duty to retreat in the Third Restatement; that doctrine has of course been highly controversial in the criminal context, throughout U.S. history, with the no-duty-to-retreat side prevailing in most states (with only 12 states preserving a duty to retreat, by my latest count). Here's what the Restatement says about this, in comment g and the accompanying Reporter's Note:

The question whether an actor must retreat before using deadly force might be analyzed as just one aspect of the necessity requirement that is always a condition of the privilege to use such defensive force. Thus, a jury might simply be asked to consider the defendant's ability to safely retreat as part of its judgment whether the immediate use of force was reasonably necessary. That necessity-focused approach has much to commend it. However, courts and legislatures have typically not treated the question in that manner but have instead formulated specific per se rules addressing that particular alternative means of avoiding the use of deadly force.

Restatement of Torts § 65 and Restatement Second of Torts § 65 recognized a limited duty to retreat if the actor was using deadly force (but not if the actor was using lesser force). This Restatement continues to recognize a narrow duty when, but only when, the actor uses deadly force, for the same reasons enunciated in the prior Restatements.

First, it is desirable to avoid unnecessary violence, even when an actor is unjustifiably attacked by another. This desideratum is especially compelling when the actor is posing a risk of deadly harm. The rule requiring retreat in these narrow circumstances appropriately balances the relevant individual and social interests, including the interest in preserving the lives of both the aggressor and the actor and the interest of the actor in standing his or her ground. The rule also might have some tendency to reduce the incidence of avoidable deadly violence.

Second, an actor's duty to retreat before using deadly force should be defined narrowly, in light of what can fairly be expected of an actor who must quickly decide how to respond when under sudden attack and when faced with very serious risks of harm. The actor has a duty to retreat only if the actor can do so with complete safety. If the actor harbors any reasonable doubt on this question, the actor need not retreat. As explained in Restatement Second of Torts § 65, Comment g, the actor need not retreat if "he reasonably believes that there is any chance that retreat cannot be safely made. … [E]ven the slightest doubt, if reasonable, is enough to justify his standing his ground, and in determining whether his doubt is reasonable every allowance must be made for the predicament in which his assailant has placed him." Moreover, the actor ordinarily need not retreat from his dwelling. See Comment h.

Thus, an actor is not required to retreat when confronted with a loaded gun or any other weapon that poses some chance of causing harm to the actor if the actor chooses to depart or flee. In some circumstances, however, the actor does know or reasonably should know that a retreat is a perfectly safe option. In such a case, the duty to retreat is triggered.

Illustrations:

[6.] Cole attacks Duardo, pushing Duardo to the ground, and pulling out a knife while standing above Duardo. Duardo believes that he can probably escape without harm by running away, but Duardo also reasonably believes that there is a small chance that he would be harmed in the effort to escape. Duardo is not required to retreat and may use deadly force against Cole.

[7.] Taxi driver Finnegan picks up Elliott, a highly intoxicated passenger, and brings Elliott to his requested address. Elliott gets out of the cab but then gets into an argument with Finnegan, pulls a knife, and approaches Finnegan, who is still in the cab with the motor running. Finnegan knows he can drive away with complete safety. Instead, Finnegan lowers the closed window and fires a shot at Elliott, seriously wounding Elliott. Because Finnegan has a duty to retreat, Finnegan's use of deadly force against Elliott is not privileged.

In recent years, many states have revised their criminal statutes to eliminate an actor's duty to retreat even when the actor is using deadly force. Such so-called "stand your ground" laws now appear to be the majority rule with respect to criminal liability. Some states also explicitly provide that an actor's compliance with applicable criminal self-defense statutes immunizes the actor from tort liability. In a jurisdiction with both types of provisions, the "stand your ground" approach displaces the narrow duty to retreat recognized in this Section. However, in other jurisdictions, the question whether courts should recognize a narrow duty to retreat remains open.

Some reasons in support of such a duty are recited above. Moreover, a jurisdiction might plausibly recognize a circumscribed duty to retreat as a limit on a tort-law defense even if it declines to recognize such a duty as a limit on a criminal-law defense. There are especially strong reasons to hesitate before sanctioning with a criminal penalty (as opposed to a tort remedy) actors who fail to retreat, in light of the modest culpability of many such actors as well as the stigma and harsh consequences of a criminal conviction. Indeed, in deadly force cases, the criminal penalty for an actor's unjustified use of defensive force is often quite severe, because the actor's conduct might be categorized as murder or aggravated battery or assault.

An important note about the imprecise phrase "duty to retreat," also from the Restatement:

The terminology "duty to retreat" is potentially misleading. An actor with such a "duty" is not liable to an aggressor simply for not retreating. Rather, the "duty" operates as a limit on the scope of the actor's privilege of self-defense when the actor is using otherwise proportionate deadly force against an aggressor. One could similarly speak of a "duty" to use only necessary or proportionate defensive force or a "duty" not to use force in retaliation; in all those situations, the supposed duty is a limitation on a defense, not the independent basis of tort liability to another. However, because the "duty to retreat" terminology is widely accepted and need not lead to confusion, it is employed in this Restatement.

The post Should Deadly Self-Defense Be Tortious if Need for It Could Have Been Avoided "by Relinquishing the Exercise of [a] Right"? appeared first on Reason.com.

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On July 27, 2026, the Solicitor General submitted an emergency application in Trump v. California. This case concerns proposed regulations for mail-in ballots. The government filed its reply brief on August 12. After a flurry of litigation in the lower court, and new action by the government, the Supreme Court finally decided the case on August 24. This emergency case took nearly a month.

The majority opinion, at a brisk ten pages, finds the District Court lacked jurisdiction because the case was not yet ripe. Moreover, any alleged injuries were speculative under Clapper. The per curiam opinion reads a lot of Justice Kavanaugh's voice. I do like the word "concretize." Justice Kavanuagh has taken the lead in writing some of the Court's more significant jurisdictional cases. One would think that a former federal courts professor in the majority would get these cases, but apparently not.

Justice Sotomayor's pithy dissent covers all the bases in only four pages.

Then there is Justice Jackson. She wrote a solo twenty-page dissent that discusses the merits of the case, even though the majority only addressed the jurisdictional issues. She also warns that the Court's precedents are creating a "Kafkaesque nightmare." The only nightmare here is the fact that the Court let KBJ take nearly a month from the date of the application to write this dissent.

It seems that all of the Justices were ready to go shortly after the briefing concluded. But Jackson dragged out the process so long that the posture in the lower court changed. Some critics have faulted the Court for not addressing the recent developments. But how could they? Any change by the majority might trigger another two week delay from Justice Jackson.

Justice Jackson has proven that she sees no need for urgency when the Trump Administration submits an emergency application, especially when the case comes from the First Circuit. She slow-walked the petition in Libby v. Fectau. My nickname, the Laborious KBJ, still fits.

I will give you a preview of a future installment from my SCOTUSBlog series on Court Reform. I call it the "Release-6."

For any matter, six Justices can force the release of an opinion immediately. This rule would apply on both the merits and emergency dockets. The majority opinion could be published right away, with a notation that a dissent is forthcoming. A super-majority of the Court can bring a pending matter to an immediate conclusion. If a Justice wishes, he or she can publish the dissent at a later date, but the business of the Court will move forward.

There are some emergency matters where an immediate resolution is essential for the government or the private parties. It may also not be viable to keep an administrative stay in effect for an extended period of time. With the Release-6, six members of the Court can issue their judgment, and the dissent can come later, or not at all.

Trump v. California was a prime case. There were six clear votes to grant a stay, and a single dissenter held the matter up for weeks. Release-6. The Supreme Court forced out a ruling in A.A.R.P. v. Trump before Justices Alito and Thomas could write their dissent. Cooper v. Aaron was decided before Justice Frankfurter could finish his concurrence. In an emergency case, the Court can act before the separate writings are ready. Justice Jackson should receive the same treatment.

The post How Long Did Justice Jackson's "Kafkaesque Nightmare" Dissent Hold Up <i>Trump v. California</i>? appeared first on Reason.com.

From today's decision by Judge Loren AliKhan (D.D.C.) in Jansen v. Trump:

On the first day of his second term, President Donald J. Trump issued an Executive Order declaring it "the policy of the United States to recognize two sexes, male and female," which "are not changeable." The Executive Order requires that government-issued identification documents, including passports and Global Entry cards, "accurately reflect the holder's sex" based on the individual's reproductive system "at conception." Pursuant to the Executive Order, the U.S. Department of State and U.S. Customs and Border Protection ("CBP"), a component of the U.S. Department of Homeland Security ("DHS"), now require that sex markers on passports and Global Entry cards reflect an individual's sex assigned at birth.

Ms. Jansen is an intersex, post-operative transgender woman in her fifties. She was born with sex chromosome mosaicism, an intersex condition where each of her cells has a different combination of sex chromosomes, such as XX, XY, and XXXY.  When Ms. Jansen was born, her sex was assigned as male on her birth certificate even though she was born with underdeveloped external male reproductive organs and testes that do not produce sperm.

Ms. Jansen learned that she had mosaicism as a teenager, after which she "began living all aspects of her life as a woman."  In the 1990s, Ms. Jansen successfully petitioned to change the sex on her birth certificate and in her Social Security records to female.  Her state of residence also changed the sex designation on her driver's license from male to female "in the belief that the male designation was a clerical error." Also in the 1990s, Ms. Jansen underwent surgery in the United Kingdom to align her physical anatomy with her female sex. She has been on hormone therapy since around that time. Ms. Jansen has lived as a woman for over thirty years, and while people close to her are aware that she is intersex and transgender, "people in her community are not." …

The court concludes that Ms. Jansen has not carried her burden of showing irreparable harm in the absence of preliminary relief, which is sufficient to deny her motion for a preliminary injunction…. [T]he parties agree that Ms. Jansen currently possesses a valid passport that bears a sex marker consistent with her lived sex, which does not expire until 2032. Because the State Department's policy provides that all passports will remain valid until their expiration date, Ms. Jansen is not at an imminent risk of experiencing the harms stemming from carrying a passport with a male sex marker….

In contrast, Ms. Jansen's Global Entry card is currently eligible for renewal and will expire in November 2026. Ms. Jansen alleges that she has not sought renewal out of fear that she will be required to have a male sex designation on her new card…. Ms. Jansen does not dispute that her Global Entry card is a "benefit" and that "she need only carry the card for certain participation purposes," but she argues that the government's discriminatory denial of this benefit "puts [her] to a Hobson's choice: suffer the indignity of losing access to this benefit because she refused to be labeled as something she is not, or the indignity of being outed and branded as male."

While the court agrees with Ms. Jansen that the government "cannot deny a benefit on a discriminatory basis," Ms. Jansen has not shown that she is likely to face imminent and irreparable harm from no longer using her Global Entry card. As an initial matter, a Global Entry card is not required to enter the United States; instead, membership in the program allows for expedited processing at airports, land borders, and seaports. Ms. Jansen has not alleged that she has any plans to travel internationally. And even if Ms. Jansen had alleged such plans, all she would lose is the ability to receive expedited processing. That alleged injury does not meet the high standard for irreparable injury….

{[B]ecause [the court] concludes that Ms. Jansen has failed to show irreparable harm warranting relief, it need not consider the remaining factors for a preliminary injunction—in particular, Ms. Jansen's likelihood of success on the merits. The court believes this approach to be prudent because, in addressing the likelihood of success on the merits in their briefs and at the hearing, the parties vigorously debated the application of the Supreme Court's order staying a class-wide preliminary injunction of the Passport Policy in Trump v. Orr (2025).

In Orr, the Supreme Court concluded that—on the limited record before it—the plaintiffs, who were transgender, were unlikely to succeed on the merits of their claims that displaying their sex at birth on their passports violated "equal protection principles" or was arbitrary and capricious, and that the government would "'suffer[] a form of irreparable injury' absent a stay." The Supreme Court has explained that its "interim orders are not conclusive as to the merits" but instead should "inform how a court should exercise equitable discretion in like cases."

Ms. Jansen argues that Orr is distinguishable because it does not involve intersex plaintiffs like herself. The court is somewhat skeptical that Ms. Jansen's intersex identity sufficiently distinguishes her suit from Orr to escape the Supreme Court's conclusion that "[d]isplaying passport holders' sex at birth … merely attest[s] to a historical fact without subjecting anyone to differential treatment." Like the plaintiffs in Orr, Ms. Jansen wishes to maintain identification documents bearing a female sex marker consistent with her lived sex and appearance; she does not argue that her identification documents should bear a third sex marker for non-binary and intersex people (like "X" under the former State Department policy). Ms. Jansen thus appears to challenge the same policy addressed in Orr of requiring sex markers to correspond with one's sex assigned at birth. But the court need not resolve this issue at this preliminary stage of the litigation.}

Johnny Hillary Walker, III represents the government.

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As part of an insurance dispute over a fire-damaged Carson home, attorneys for State Farm cited several cases in court filings this month that they later acknowledged don't exist….

"State Farm expects its external counsel to conform to the highest level of ethical standards and professionalism, including in their use of AI and confirming the accuracy of all legal filings," [State Farm spokesman Tom Hartmann] said.

From the State Farm lawyer's declaration, in Meni-Siliga v. A's Contractor, Inc. (Cal. Super. Ct. L.A. County):

I submit this declaration to, first and foremost, express my deepest apologies and regret to the Court, Ms. Siliga and her attorneys. I also submit this declaration to outline the steps our office has taken to determine the scope of these issues within State Farm's Motions in Limine or other filings. As set forth below, I have reviewed all of State Farm's Motions in Limine and supporting reply briefs, State Farm's Oppositions to Plaintiff's Motions in Limine, and, as a precaution, all pleadings in connection with State Farm's Motion for Summary Judgment/Adjudication and Plaintiff's Motion for Reconsideration. Based on that review, I can represent that there are no AI hallucinations within any of State Farm's Oppositions, Replies or the MSJ documents.

At the close of the most recent Final Status Conference on Friday, August 7, 2026, counsel for Plaintiff – Eric M. Khodadian, Esq. with Cummins & White LLP and Michael Shaolian, Esq. with The Shaolian Law Firm P.C. – informed the Court that they had discovered several citations in State Farm's motion in limine filings that were "fabricated" and possibly "hallucinations." This was the first time I became aware of the issue with prior filings, particularly as it relates to State Farm's first five motions in limine which our office filed and served on March 31, 2026. The issues had not been raised with us prior to or after the first two [Final Status Conferences] or before the end of the August 7th hearing….

Because of the seriousness of the allegations and the importance to [my colleague and State Farm's lead counsel], myself, our firm and State Farm of ensuring the integrity of any of our filings submitted to the Court in this matter and others, I began an investigation of the matter immediately upon my return from the August 7, 2026, Final Status Conference. With sincerest regret, I unfortunately discovered that Mr. Khodadian and Mr. Shaolian were correct, and that there were seven (7) case citations across State Farm's eight (8) motions in limine that simply did not exist. These include the following citations [details omitted -EV]….

As an officer of the Court with great respect for the Court and counsel and committed to the integrity of my legal, factual and ethical representations to and interactions with the same, I am deeply apologetic for the above-mentioned submissions and my serious lapse in professional judgment. As such, I accept responsibility for those inexcusable errors, and offer no excuse, only an apology.

As second-chair trial counsel for State Farm in this matter, I was the person primarily responsible for the preparation of the motions in limine discussed above. To assist in my preparation of these motions, I utilized an Artificial Intelligence program called "Irys." However, I regrettably did not check some of the cites I chose to include in the filed pleadings, and I believed, incorrectly, that the program was tied to and vetted through our firm's subscription to the Westlaw legal research tool and performed an internal cite check. Unfortunately, I was mistaken and only learned of that mistake when I went back to do the research identified in Paragraph 3 above. Regardless, I acknowledge and agree that I should have, but neglected to perform a cite check on all of the authorities cited in the motions in limine discussed above before they were filed with the Court and provided to counsel.

To do our best to immediately correct this mistake and make sure it did not impact any other pleadings, I have now re-reviewed our motion for summary judgment papers (including our moving and reply papers), our opposition to the motion for reconsideration (which was prepared with no AI assistance) and our in limine filings (some of which were prepared with AI assistance). Only some of the in limine filings were affected. Based on my thorough review of those filings (which I reviewed twice), the affected in limine filings are identified above in Paragraph 5 of this Declaration. No reply briefs nor oppositions were affected.

With respect to the affected in limine filings, our office is concurrently filing, without comment, redlined copies to identify and advise the Court of the improper citations and allow it to assess their impact.

Once again, I am sincerely apologetic for the inconvenience and waste of time and resources I have forced the Court, Ms. Siliga and attorneys to expend on this issue that should never have arisen.

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I'm delighted to pass along this extremely interesting piece, from Josh Morrow, a partner at Lehotsky Cohn LLP:

I was intrigued to see what struck me as indicia of AI writing in a recent, published opinion from an Article III appellate court. So I took the opinion to Pangram, an AI-detection tool. Pangram's results backed my intuition, identifying multiple passages, some stretching for pages, as AI-generated.

Then I ran the full set of this year's published opinions from the regional courts of appeals through Pangram—about 2,250 opinions in all. Dozens show signs of AI writing.

No, I'm not going to name the judges who wrote or joined the opinions. Used well, AI can sharpen both thinking and prose, and I am heartened that some courts appear to be using it. For now, I just want to survey my findings, explain what they mean, and offer a few thoughts about how courts can make the most of AI without ceding human judgment.

Background

AI writing can leave "tells," but the full set resists reduction to a checklist. Sometimes you just get the feeling a passage is AI. That feeling struck recently as I was reading an opinion from one of the regional courts of appeals. (Like the other opinions I discuss, this one has no connection to my practice.)

I uploaded the opinion to Pangram, which is a cutting-edge AI-detection tool trained to distinguish human writing from AI. There is a lingering perception that AI writing is invulnerable to detection. Earlier tools touting this ability were faltering and gave that view some basis. But no more. Some AI developers are working toward offering their own proprietary detectors. Meanwhile, third-party detectors have improved considerably. Pangram, for example, claims a "false positive" rate "of just 0.0041%, or roughly one false positive for every 24,000 documents." My experience is in accord.

Across hundreds of documents where I'm certain of authorship, I have never seen Pangram give a false positive. This should not come as any shock. After all, many readers can discern AI writing when they encounter it. It seems perfectly natural that a tool trained to distinguish human writing from AI writing could see some of the same patterns.

Pangram's results for this single opinion were notable: it classified swaths of text as AI-written. Pangram showed its work too, labeling discrete segments in the opinion as either human or AI. It attributed numerous passages—some stretching for hundreds of words—to a non-human author.

What I found

Curious whether this sole opinion was an outlier, I broadened the search. With help from Pangram, I assembled and tested the full text of every published opinion I could readily obtain from the regional courts of appeals from January through early August 2026—about 2,250 opinions in all. I also wanted a baseline: what would Pangram say about opinions from the pre-AI era?

To get a baseline, I tested all the published circuit opinions from January 2022, more than 300. Pangram found no signs of AI-generated text in any of them. Not one passage, and not one sentence. Every opinion returned "0.000000%" AI. That gave me some confidence that Pangram was not mistaking the ordinary conventions of judicial writing for AI authorship. (Pangram's methods are insensitive to dates, so I did not worry that the opinions' timing influenced these results.)

The results for 2026 looked very different. More than 50 opinions showed signs of AI authorship. The exact percentages ranged from less than 1% to more than 50% AI-written, with most results clustering near the bottom of that range. Still, the contrast with January 2022 was hard to miss.

Of course, this was not an exhaustive study. I looked only at this year's published opinions from the regional courts of appeals. Adding unpublished circuit decisions would have multiplied the corpus, and adding district courts would have made it enormous. Nor was I looking for judge- or court-specific results.

Instead, I was interested in evidence bearing on whether the circuit courts are using AI at all to help draft opinions. Pangram generously supplied credits to make the search possible.

What it means

The results are strong evidence of AI authorship, but they are not conclusive. Pangram is robust, but automated detection is neither foolproof nor comprehensive.

For opinions with substantial signs of AI writing, I scanned them again from a separate account. The results were consistent with the first pass, thus dispelling my concerns about random noise or instability influencing Pangram's classifications. Pangram also flagged zero published circuit opinions from January 2022 as containing AI-generated prose. It would be a remarkable coincidence if the AI-era uptick owed to some cause other than AI.

I had more subjective reasons for crediting the results, too. Pangram's methodology, which I will not detail here, is sensible: broadly speaking, it uses a classifier trained on human and AI writing to distinguish one from the other. Said differently, Pangram takes some of the same techniques that make AI so powerful and uses them to flag AI prose. Then there is the prose itself. Many of the passages Pangram flagged exhibited the stylistic tells that prompted my interest in the first place, and very few of the results left me incredulous at Pangram's attributions.

There are also reasons to think this evidence understates how often chambers are using AI. Pangram analyzed only the final opinions, but AI can also brainstorm, research, outline, or critique a draft. All are great use cases, but they leave little evidence of AI assistance in the final product. And because human editing can weaken the signals that Pangram relies on, the same goes for drafts that see modest human editing.

What Pangram detected, then, is best understood as some evidence indicating a broader shift in how some chambers are writing opinions. Even if the evidence were conclusive, or if the results did understate actual usage, important questions would persist. Pangram's conclusions about AI-generated prose in an opinion do not tell us how the language entered the drafting process, which often unfolds as a collaboration between judges and law clerks. Nor can we reconstruct whatever human review followed.

Still, the results convinced me that the core phenomenon—federal appellate chambers using AI to draft opinions—is a few steps further from hypothetical than I might have otherwise guessed. Indeed, at least two district judges have already acknowledged that AI writing entered their opinions. And litigants recently claimed that the same occurred in state court. Perhaps it was only a matter of time before federal appellate courts followed suit.

Why it matters

Even though the evidence is limited, I am not convinced the apparent phenomenon should go unnoticed or undiscussed.

Our first response should be to celebrate the salutary effects that AI can have on both thinking and writing. The technology "obviously has great potential," as Chief Justice Roberts has argued. And as Judge Newsom has argued, these tools hold great "promise"—for accelerating research, unpacking complexities, and greatly helping judges discharge their duties with the excellence their jobs demand.

Nor do I believe AI drafting is inherently suspect. On the contrary, today's AI tools have incredible potential to improve thinking and refine prose. So, the indicia of AI authorship I saw gave me no reason to think that the opinions are in any way deficient.

At the same time, over-reliance on AI drafting should be avoided. Writing an opinion does far more than communicate a conclusion already reached. The act of writing forces an author to organize premises, confront gaps, reconcile competing considerations, and articulate exactly why one argument prevails over another.

Writing is thus an integral part of judging—i.e., the exercise of judgment—not merely a record of it. AI-assisted drafting need not short-circuit that process. But if substantial passages are arriving essentially finished and remaining largely unedited, it is fair for the public to discuss whether any of the rigor writing itself imposes has been lost along the way.

Signs of AI writing in judicial opinions might also lead the public to wonder whether courts are turning to AI for more than just drafting. Using AI to formalize human judgment into polished prose is one thing. And using AI to help review the record or examine counterarguments can be useful too. But delegating the ultimate judgment—that is, the what and why of a decision itself—is something else entirely.

I doubt any courts have gone that far. But an opinion's text itself ordinarily cannot tell us, no matter how much (or little) of the writing might appear to be AI-assisted. This, too, is worth discussing.

I am heartened that some of the conversation has already begun. Richard Re, for instance, has written persuasively about what AI authorship in judicial opinions could mean for "the fate of legal reason and the future of human participation in the legal system." Normative questions naturally follow. When is AI drafting consistent with a judge's duty? When, if ever, should it be disclosed? And to what degree should indicia of AI authorship affect an opinion's legal value?

Empirical questions lurk too. How often are judges or their law clerks using AI to write? How much of that writing sees human revision? And as AI tools keep improving, will AI-generated judicial prose become more common? I offer no answers here. Rather, I mean only to show that the dozens of opinions I found give the questions renewed import.

Conclusion

Undoubtedly, AI has a place in the legal profession, probably a large one, and practitioners who believe otherwise risk losing ground in the battles for efficiency and expertise that drive favorable outcomes for clients.

I am presently less certain that large swaths of unedited AI prose have a place in the precedential opinions through which our Nation's federal appellate courts explain the law governing millions of Americans. "Good writing … is clear thinking made visible," as the aphorism goes.

None of the dozens of opinions Pangram flagged led me to conclude that any judges (or law clerks) are outsourcing all their writing to AI. But should that ever begin to occur, courts should guard against letting their judgment wilt alongside.

The post "Signs of AI Authorship in Federal Appellate Opinions" appeared first on Reason.com.

[I]t's not surprising that a man in Douglass' position would appeal to free speech given the draconian censorship of abolitionist ideas in the South, the hostile mobs he often had to confront and more generally his membership of an unpopular minority that suffered pervasive stigma and discrimination. In such a vulnerable situation it's not hard to see how the right of free speech can be invoked as a shield against majoritarian intolerance and a precondition for speaking truth to power.

But as everyone who cares deeply about free speech knows all too well, the real test for free speech defenders is not whether you advocate free speech for yourself and the ideas you want to advance. The real test is whether you also defend the rights of those you most vehemently disagree with and are willing to take a stand for the right to express deeply unpopular ideas no matter how massive and vocal the public backlash.

A great topic to test Douglass' free speech philosophy and consistency is wartime restrictions. National security is and remains one of the essential drivers of censorship. As witnessed by World War I and the subsequent First Red Scare, such wartime restrictions can often extend beyond and outlive any genuine and pressing requirements, and end up targeting dissent and opposition alleged to threaten national unity.

Douglass lived through the American Civil War; a war fundamentally fought over the very question of slavery, which also animated Douglass' personal struggle. He therefore had a deeply personal stake in the outcome of the war and in supporting one side against the other, both when they faced off on the battlefield and when they clashed in the public square. So what does the record say? …

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The crux of Plaintiffs' allegations is that the School District and its officials established a Muslim Prayer Room at one of its high schools, the Academy at Palumbo …. Plaintiffs claim that the room was restricted to Muslim students, and that they were unfairly disciplined by the Defendants for entering the Prayer Room because they are not Muslim….

The Supreme Court requires that the Establishment Clause be interpreted by "reference to historical practices and understandings." To prevail on an Establishment Clause claim, a plaintiff must show that the challenged government action "resemble[s] a traditional hallmark of religious establishment." The Third Circuit has identified six of these hallmarks:

"First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function."

To prevail on their Establishment Clause claim, Plaintiffs only need to show that SDP's Prayer/Quiet Room policy "resembles one" of these hallmarks.

Student Plaintiffs plausibly allege that Defendants … suspended them for entering the Muslim Prayer Room as non-Muslims. They also plausibly allege that they were suspended to pacify Palumbo students' outrage, thereby reinforcing the student body's perception that the Prayer Room was available to Muslim students only. In this respect, the defendants' actions resemble the fourth hallmark of religious establishment: "the government restrict[ing] political participation by dissenters."

The Plaintiffs also plausibly allege that Defendants … used public resources to create the Prayer Room and prevent non-Muslim students from accessing it. The room was on the grounds of a publicly funded school and was used during school hours. In this respect, Defendants' actions resemble the fifth hallmark of religious establishment: "the government provid[ing] financial support for the established church, often in a way that prefer[s] the established denomination over other churches."

The school defendants argued that the room was actually open "to all students who wished to pray, meditate, or reflect privately," and Muslim students just happened to use the room more often than other students. But plaintiffs had alleged—plausibly, the court concluded—that they were indeed disciplined for entering the room as non-Muslims, citing "The Police Report filed in response to Defendant Thompson's complaint wherein she stated that the room is 'designated for a particular religion and having a certain flag [Palestinian] outside the room'":

Here are excerpts from the factual backstory, as alleged by plaintiffs:

[1.] Prayer Room Incident[:] The final days of the Palumbo school year are generally quite an informal affair, with teachers regularly allowing students to leave class, coming and going as they please within the building. On the third-to-last day of the school year—June 11, 2024—Plaintiff M. Danowitz decided to visit his old friends at Palumbo. Danowitz, who is Jewish, had attended Palumbo the previous school year and remained friendly with Palumbo students including Plaintiff John Hiester. He and Hiester arrived at Palumbo together on the morning of June 11, entering the building through the main entrance. They passed Palumbo's Principal, Kiana Thompson  … and Dean of Student Conduct Rashida Stamps … on their way in, and went through Palumbo's standard security screening. Danowitz was admitted into the building without objection. His entrance was recorded by Palumbo security cameras.

Once inside, Hiester and Danowitz joined Plaintiff Meru Parmar and several other friends in the school's computer lab. The group ("the Boys" [no, not those Boys -EV]) then made their way to the library, where an open door marked "Quiet Room" and decorated with a makeshift Palestinian flag caught their attention. Believing that the room was open to all students, first Danowitz—then later Hiester and Parmar—went inside.

Inside the Quiet Room, the Boys found several female students seated at a table using their laptops, as well as Islamic religious decorations and Arabic signage adorning the walls. One large sign welcomed people to the "Prayer Room" and wished them a "Happy Ramadan." A laminated placard pinned to the wall contained "guidelines" from The Academy at Palumbo Muslim Student Association for use of the "Quiet Room."

The Boys sat on the opposite side of the room from the female students, and one of them (a non-party to this suit) recorded an iPhone video as Danowitz said a short Jewish prayer in Hebrew. The prayer elicited laughter from the female students and a short exchange during which the girls questioned why the Boys were in the room.  Danowitz responded that he had a First Amendment right to pray and was a proud Zionist; he also sang a short section of Am Yisroel Chai ("The People of Israel Live") and did a handstand. As he left the room, he removed a laminated placard from the wall, setting it on the floor.

[2.] Immediate Aftermath[:] The Boys faced immediate backlash to their actions in the Prayer Room. Within minutes, Hiester was bombarded by texts and calls from fellow students demanding to know Danowitz's whereabouts. Unnerved by this reaction, Danowitz left the Palumbo building, followed by Hiester shortly thereafter; Parmar returned to the computer lab. Throughout the day, Hiester received a continuous flood of threatening texts and phone calls from Palumbo classmates; one Muslim student (A.B.) who had previously assaulted Hiester called him 11 times. The same student led a group into the computer lab to confront Parmar, angrily accusing him of "trashing" the Prayer Room. Feeling threatened, Parmar had his mother pick him up from school early.

[3.] Investigation Initiated[:] Within hours of the incident, Palumbo administrators began taking witness statements, and Defendant Stamps notified Defendant Thompson of a "potential 'Hate Crime'" in the "Quiet Room/Prayer Room." Thompson subsequently contacted each of the Student Plaintiffs' parents.

First, she called Hiester's parents to tell them that their son had left school early without permission. At his parents' urging, Hiester returned to school, where he was directed by Principal Thompson to fill out an Incident Report. He admitted to entering the "Prayer Room" but denied that any harassment had occurred. Before leaving school for the day, Hiester was confronted and threatened by A.B. and a group of other students in a first-floor bathroom.

Defendant Thompson next called Plaintiff Danowitz's mother to tell her that her son had been accused of sneaking into Palumbo and harassing Muslim students. The following morning, she called Plaintiff Parmar's father to inform him that a statement from his son was needed to address "serious accusations" of "harassment of girls "in the Prayer Room." When Parmar arrived at school that morning, he was directed to Principal Thompson's office for questioning and to fill out an Incident Report. Parmar maintained that he didn't "know of any incident" in the Prayer Room.

[4.] Accusations Spread Online …

[5.] Student Plaintiffs Suspended and Parents' Concerns Rebuffed by Palumbo Administration …

[6.] Plaintiff Families File Statements with the District[:] The Plaintiffs went directly from Palumbo to SDP's main administrative building to file statements about the Prayer Room incident and its fallout. They also showed SDP Victim Assistance Specialists a video taken during the incident which contradicted many of the accusations lodged against Plaintiff students.

Despite Plaintiff Families filing statements, sharing video evidence, and making repeated appeals to Palumbo and SDP leadership, SDP did not publicly respond to the threats and accusations against Plaintiff students until August 19, 2024, when Defendant Thompson issued a letter to the Palumbo community. The letter stated that the investigation into the incident was ongoing, but emphasized that the kind of harassment the Student Plaintiffs were accused of committing was unacceptable. It also warned Palumbo students that there would be consequences for any students who used social media to "exacerbate claims beyond the allegations that were reported."

Aside from the letter, the Plaintiff families' concerns were never addressed. On June 19, 2024, Kathryn Hiester requested a safety transfer for her son due to student threats and Palumbo administrators' dismissive reaction to her concerns; she never received a response. Parmar's mother, Catherine, also sent an email on June 16 expressing her concern that went unanswered.

[7.] Teacher Defendants Amplify the Accusations Against Student Plaintiffs …

[8.] SDP's Formal Investigation[:] The investigation of the Prayer Room incident matter was assigned to an employee of SDP's Office of School Safety Investigation Unit, Steven Jefferson ("Jefferson"). Summarizing the incident, Jefferson referred to the Plaintiff students and their (non-party) friends as "five Jewish male students," despite the fact that Hiester and Parmar are not Jewish. Jefferson never interviewed the Student Plaintiffs or Plaintiff families. The investigation credited the secondhand accounts of students who did not directly witness the Prayer Room incident, despite Plaintiff Families showing SDP officials video footage that contradicted their accusations. On August 29, 2024, Defendant Thompson prepared two letters informing Plaintiff families that the SDP investigation had found that their sons committed harassment on June 11, 2024. The letters were sent to the Hiester and Parmar families on September 6, 2024.

The full investigative report that was eventually turned over to Plaintiffs' counsel contained no specific factual findings or analysis, merely the conclusion that that the harassment allegations were "founded." A Harassment, Intimidation and Bullying Report ("HIBster Report") was prepared as part of the investigation by Jade Tuff, a Palumbo teacher who also served as the faculty advisor to the Academy at Palumbo Muslim Student Association (APMSA). Plaintiffs allege that Palumbo administrators had granted authority over the Prayer Room to APMSA, creating a clear conflict of interest for Tuff….

The court allowed plaintiffs' Due Process Clause claim to proceed as well:

Under the Fourteenth Amendment, no State shall "deprive any person of life, liberty, or property without due process of law …" Property interests are typically created and defined by non-constitutional sources, like state law. Under Pennsylvania law, education is a statutory right, and students must be afforded all appropriate due process before being excluded from school….

Here, Student Plaintiffs were neither provided notice of the charges against them nor given an opportunity to deny them before the suspension took effect. When Defendant Stamps and Thompson questioned Student Plaintiffs about the Prayer Room incident of June 11, 2024, they never asked how M. Danowitz obtained access to Palumbo. Therefore, Student Plaintiffs were never given notice that they were alleged to have accompanied a trespasser on campus, nor were they provided an opportunity to contest that accusation.

At 10 p.m. the night before the Student Plaintiffs' suspensions took effect, Defendant Thompson notified their parents of the suspension and its grounds. She did not notify the students themselves. Providing written notice of suspension to a student's parents is required under Pennsylvania law, but it doesn't replace a disciplinarian's obligation to notify the excluded student themselves. Despite the suspension taking effect the following morning, Defendant Thompson refused to meet with the Student Plaintiffs and their parents when they arrived at Palumbo seeking an audience. This deprived the Student Plaintiffs of the opportunity to contest the allegations.

In their motion to dismiss, SDP Defendants argue that a pre-deprivation hearing is not required when it is infeasible to do so, and the hearing subsequently occurs as soon as reasonably practicable…. But making all inferences for the Plaintiff, the Court concludes that it was feasible for SDP defendants to provide notice of the suspension and an informal hearing to Student Plaintiffs without endangering persons or property or disrupting the (then-concluded for the year) academic process.

Defendant Thompson suspended Student Plaintiffs on a Wednesday night. She could have consented to meet with Plaintiffs to provide notice and hearing when they came to Palumbo seeking to meet with her the next morning. Or, in a post-Covid world where remote learning is commonplace, Thompson could easily have arranged a video conference with the Student Plaintiffs.

The post Would Muslim Prayer Room at Public High School Violate Establishment Clause? appeared first on Reason.com.

Emphasizing the "profound impact" of Mexican-American labor leader and civil rights activist Cesar Chavez "on the people of Fresno" and concluding the renaming of a downtown thoroughfare in his honor would "provide a source of pride and community recognition," the Fresno City Council … adopted Resolution No. 2023-056, which facilitated the renaming of the "East Kings Canyon Road, East Ventura Avenue, and West California Avenue alignment" (collectively, the Alignment) to Cesar Chavez Boulevard.

Plaintiffs objected to the renaming and then sued, among other things arguing thus:

The operative complaint alleges the following. The Alignment is composed of three streets "decidedly historical to [City]'s rich history." East Ventura Avenue, which was named in 1873, "has always been the heart of [City's] Armenian Community" and "was known as Armenian Town." West California Avenue, which was named in 1881, is "the heart" of City's African-American community. East Kings Canyon Road, which "is over 70 years old," "has always been known to residents and tourists alike as the gateway to the Sierras and Kings Canyon National Park."

Cesar Chavez, who was "not a Fresno native and never lived in Fresno," "has never been integral to nor associated with any of these [three] historical streets." He was also a "divisive" and "objectionable political figure" who "alienated many farmers, packing houses and grocery stores and retaliated against those who did not join his union."

Plaintiff "is an unincorporated grass roots association with [more than 1,000] members who live, own, or operate a business on the historic … streets of [East] Kings Canyon Rd., [East] Ventura Ave., or [West] California Ave., and/or who reside or have businesses in the immediate vicinity of said streets." Plaintiff's members viewed the renaming of the Alignment as City's attempt to "erase or rewrite" "their personal or business history"; lamented "the enormous costs to each business or property owner, operator, tenant, and residents when the street name is changed"; and stressed only they were required to bear the "cultural and financial burden and impact in renaming [the Alignment]" and "propagate, echo, and spread … City's message [about Cesar Chavez]."

Many members who reside on or near the Alignment "intentionally purchased their homes specifically because they were on those [three] streets and have lived there most of their lives." "Those street names are part of their identity, tradition, and everyday lives" and members "had every reason to believe those street names would remain the same, and never change." As a result of the renaming, these members were "uprooted and forever changed." Furthermore, they needed to devote "substantial" "time and expense" to change their addresses on [various documents]….

Many members who own and/or operate businesses and property on the Alignment "built their businesses specifically on one of those [three] streets, because of its location, street name and the street's reputation." "The street name became part of their identity and goodwill and were advantageous to their businesses, were part of their sense of pride, and were proudly identifiable with them." These members "had every expectation that when they moved their business, or opened, or built their businesses on one of those [three] streets, that the name would never change."

"The concept of, and identification with, Cesar Chavez [Boulevard] substantially impairs their goodwill and identity, and business model, and will have the tendency to make the public and customers believe they desired to have their business on Cesar Chavez [Boulevard] and consented to it." Moreover, "[f]or business owners a change of address is a very costly and time-consuming project." "Many will be required to remove exterior or street-front signage, which costs thousands of dollars and will have a greater impact if the street name is a part of the business name." …

As it happens, in March 2026, the City Council changed the street names back because of "credible historical sources and public statements [that] have brought renewed attention to serious allegations regarding Cesar Chavez's personal conduct, including accusations of sexual misconduct and abusive behavior toward colleagues and members of the farmworker community." The court, though, concluded that it should resolve plaintiffs' claims rather than find them moot (Justice Kathleen Meehan dissented on this score). And the court concluded—correctly, I think—that this was permissible speech by the government, rather than an unconstitutional compulsion of private speech:

[T]he facts alleged were insufficient to establish plaintiff's members were compelled to espouse or suppress certain ideas and beliefs. That plaintiff's members had to reside or run a business on or near the renamed Cesar Chavez Boulevard and/or update their addresses to reflect this street name instead of East Kings Canyon Road, East Ventura Avenue, or West California Avenue, which ensured their homes or enterprises could be physically located, "is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto 'Live Free or Die ….'" Also, … the instant case did not involve a government measure that punished or threatened to punish plaintiff's members' protected speech by regulatory, proscriptive, or compulsory action. Far from becoming "instrument[s] for fostering public adherence to an ideological point of view [they] find[ ] unacceptable," plaintiff's members "remained free to express [their opposing] views publicly and to criticize …."

Plaintiff points out its members were "singled out" to shoulder the "administrative burden" of the Alignment's renaming [apparently on the grounds that the law specially burdened those who lived and owned businesses on those streets -EV]. This, however, is immaterial to a free speech claim…. "The inquiry for First Amendment purposes is not concerned with economic impact; rather, it looks only to the effect of th[e] [government action] upon freedom of expression." … "… Governing requires policy choices to be made. And in carrying out those choices, government must speak—and the First Amendment does not constrain what it says." …

Plaintiff insists the renaming of the Alignment is "completely arbitrary and unreasonable" because, among other things, (1) Cesar Chavez "was not born in Fresno"; "was not raised in Fresno"; "never lived in Fresno"; "was not part of the [B]lack community of [West] California Ave[nue] nor the Armenian Community of [East] Ventura Ave[nue]"; and had no "association" with either East Kings Canyon Road, East Ventura Avenue, or West California Avenue; (2) the renaming was politically motivated (3) the reach of the renaming was limited to "[City's] south end"; and (4) other streets (e.g., "Blackstone, Shaw, Van Ness or Olive") had "a lot more drivers, businesses and residents" and—if renamed instead of the Alignment—would have had "more eyeballs seeing [the Cesar Chavez Boulevard] street signs."

None of these reasons convince us to overturn City's action. "A court is not concerned with the wisdom or policy of the law [enacted under police power] and cannot substitute its judgment for that of the legislative body. If reasonable minds might differ as to the reasonableness of the regulation, the law must be upheld." …

Anthony R. Taylor and Michael R. Linden (Aleshire & Wynder) represent the city.

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