Plaintiff Almog Meir Jan is an Israeli citizen who was kidnapped on October 7 and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces…. Jan alleges that Defendants employed and compensated Aljamal as a journalist and provided him a U.S.-based platform to publish articles supporting Hamas. Jan asserts that through these actions, Defendants aided and abetted his kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute (ATS), 28 U.S.C. § 1350.
The court rejected the claims based on payment to Aljamal, for reasons I note in a separate post. But here is the court's explanation for rejecting the claims based on publishing pro-Hamas propaganda:
Jan alleges that by publishing Aljamal's articles, Defendants gave him a "platform to write and disseminate Hamas propaganda," aiding and abetting Hamas by garnering sympathy and attracting support for its cause….
"The Free Speech Clause of the First Amendment—'Congress shall make no law … abridging the freedom of speech'—can serve as a defense in … tort suits." Snyder v. Phelps (2011). Here, as in Snyder v. Phelps, whether the First Amendment prohibits holding Defendants liable for their articles turns largely on (1) whether their speech is of public concern, and (2) whether their speech is limited to theoretical political advocacy, rather than speech meant to incite or produce unlawful activity. See Snyder; Brandenburg v. Ohio (1969)….
American public universities have traditionally "prided themselves on being forums where controversial ideas are discussed and debated." Few universities have shown a stronger commitment to being such a forum than The Ohio State University ("OSU"). The crown jewel of OSU's commitment may well be a course titled "Crucial Conversations"—designed to train students how to communicate productively about difficult topics.
Yet a group of OSU officials (Defendants) terminated the lecturer who taught that course (Plaintiff Mark Sullivan) because of his controversial classroom speech, or so he alleges. For considered pedagogical reasons germane to the course, Sullivan quoted the n-word. After a student complaint launched an HR investigation, Defendants declined to renew Sullivan's employment contract.
Seeking reinstatement and damages, Sullivan brought a First Amendment retaliation claim, which Defendants now move to dismiss. The First Amendment forbids public universities from dismissing lecturers because of controversial academic speech. So, accepting Sullivan's allegations as true, for the reasons below, the Court DENIES Defendants' motion….
Immediate action will be taken by the Department of Justice to protect law and order, quell pro-Hamas vandalism and intimidation, and investigate and punish anti-Jewish racism in leftist, anti-American colleges and universities.
The Order demands the removal of resident aliens who violate our laws.
Now, President Trump has promised that the Federal Government will: …
Deport Hamas Sympathizers and Revoke Student Visas: "To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you. I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before."
This suggests that aliens who commit crimes may be specially targeted for deportation because their behavior is "pro-Hamas" or "anti-Jewish." And it also suggests that aliens might be deported even if they don't commit crimes, but are merely "Hamas sympathizers" "who joined in the pro-jihadist protests."
Indeed, the order itself refers to 8 U.S.C. § 1182(a)(3), which provides (in subsections (B)(i)(VII) and B(iii)) that:
Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization … is inadmissible….
A state judge has [temporarily] ordered LSU to allow its law professor Ken Levy to return to teaching duties. The university had removed Levy from the classroom pending an investigation into alleged criticism of Gov. Jeff Landry….
A hearing on a longer-term preliminary injunction is scheduled for Feb. 10 (WAFB, Chris Nakamoto):
LSU removed Levy from his tenured teaching position last week, following comments Levy made to his students about Louisiana Governor Jeff Landry and President Donald Trump.
In November, Landry publicly asked LSU to discipline Bryner last year for his comments about President Trump the day after the presidential election. A video of Bryner's comments were sent to the governor, who then circulated the video on social media.
"If Governor Landry were to retaliate against me, then f*** the governor and f*** that. — all of which was a joke and clearly said in a joking manner to highlight my no recording policy in class and the First Amendment," Levy wrote in the affidavit…..
LSU has several policy statements and permanent memoranda that address disciplining a tenured faculty member. These policies call for several layers of review, all of which require peer faculty input. None of this happened before Levy was removed from his classes ….
The Constitution gives Congress, not the executive, the power to regulate "commerce" with foreign nations. Trump claims the authority to impose these massive tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA), a vague statute that gives the president the power to set trade restrictions in situations where there is "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat."
Trump has indeed declared a national emergency at the border. But there is nothing "extraordinary" or "unusual" about either illegal migration or cross-border fentanyl smuggling. To the contrary, these phenomena are natural and longstanding consequences of severe immigration restrictions and the War on Drugs, which predictably create large black markets, and have done so for decades. Most fentanyl smuggling is actually done by US citizens crossing through legal ports of entry, which Canada and Mexico can't do much about. Moreover, illegal border crossings were actually at a low level when Trump came into office.
The unbounded nature of the administration's claim to power here is underscored by Trump's statements that there are no concessions Canada or Mexico could make to get him to lift the tariffs. That implies they aren't really linked to anything having to do with any emergency; rather, the invocation of the IEEPA is just a pretext to impose a policy Trump likes.
Under Trump's logic, "extraordinary" or "unusual" circumstances justifying starting a massive trade war can be declared to exist at virtually any time. This interpretation of the IEEPA runs roughshod over constitutional limitations on delegation of legislative power to the executive. For decades, to be sure, the Supreme Court has taken a very permissive approach to nondelegation, upholding broad delegations so long as they are based on an "intelligible principle." But, in recent years, beginning with the 2019 Gundy case, several conservative Supreme Court justices have expressed interest in tightening up nondelegation. The administration's claim to virtually limitless executive discretion to impose tariffs might be a good opportunity to do just that. Such flagrant abuse by a right-wing president might even lead one or more liberal justices to loosen their traditional skepticism of nondelegation doctrine, and be willing to give it some teeth.
A claim to such sweeping authority might fail even under the "intelligible principle" framework. If an "emergency" and an "extraordinary" or "unusual" threat exists anytime the executive says so, there is no real constraint here, intelligible or otherwise.
More promising than the nondelegation argument is the possibility of attacking Trump's tariffs under the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'" If the statute is ambiguous, courts must presume that Congress didn't give the agency the power the executive claims. In recent years, the Supreme Court has relied on MQD to strike down a number of sweeping assertions of authority by the Biden administration, such as its attempt to forgive over $400 billion in student loans, and the establishment of a nationwide eviction moratorium (first begun under Trump). The imposition of massive tariffs on our two largest trading partners is pretty obviously a decision with "vast economic and political significance," one likely to cost the public even more than Biden's loan forgiveness plan would have. And, as in the student loan and eviction moratorium cases, the statutes under which the administration claims authority are far from clear in indicating it has such sweeping power. Furthermore, some of the conservative justices might welcome an opportunity to show that MQD isn't just a tool for the political right.
I don't argue that either a nondelegation or an MQD claim is sure to succeed. But the arguments are strong, particularly on MQD. Importers and others seeking to challenge Trump's awful actions would do well to try both. Making both simultaneously would also have the advantage of making the MQD argument (which is not constitutional in nature, thereby allowing Congress to potentially give the executive sweeping power by enacting a more clear statute) seem relatively moderate by comparison.
As is often the case, litigation and political action aren't mutually exclusive. At the margin, courts may be more willing to strike down Trump's tariffs if they are unpopular. Survey data indicates large majorities oppose tariffs if reminded they increase prices. Opponents would do well to emphasize that point at every turn - even as they also battle the tariffs in court.
UPDATE: In a recentLawfare article, Peter Harrell makes a strong case that the IEEPA doesn't authorize tariffs at all. At the very least, any serious doubt about this issue strengthens the case for invalidating the administration's actions under the major questions doctrine.
Last November, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Council on Environmental Quality lacked the statutory authority to issue binding regulations implementing the National Environmental Policy Act (NEPA). As CEQ first issued such regulations in the 1970s, and that such regulations are often the basis of NEPA suits against federal agencies, the decision was a big deal.
The opinion, by Senior Judge Randolph (joined by Chief Judge Henderson) explained why the text of NEPA should not be read to confer any such authority. Accordingly, the panel majority concluded, federal agencies are only obligated to comply with NEPA itself, and any regulations they may have adopted on their own to implement NEPA's requirements.
Judge Srinivasan dissented, largely on the grounds that the question of CEQ's statutory authority was not properly before the court (as it had not been briefed) and was not necessary to resolve the question presented to the court.
Every party to the case petitioned the D.C. Circuit to rehear the case en banc. In the interim, President Trump issued an executive order directing CEQ to propose rescinding its NEPA regulations and revoking the Carter Administration's EO that had directed the CEQ to issue such regulations and directing agencies to comply.
Today, the D.C. Circuit denied the petition, but Judge Srinivasan wrote an opinion respecting the denial of en banc that was joined by a majority of judges on the court. This opinion (reproduced below) seems designed to contain Marin Audubon without creating a vehicle for Supreme Court review. I doubt it will have that effect, however.
The Supreme Court has made very clear that courts are to scrutinize agency assertions of regulatory authority. While few litigants have challenged CEQ's authority to issue regulations (perhaps because the Carter EO directed federal agencies to comply with those regulations and Justice Department attorneys were never instructed to challenge whether violating such regulations was proper grounds for a citizen suit), the arguments that Congress never delegated such authority to CEQ are strong, and claims an agency failed to comply with such regulations should not be justiciable. (Whereas claims an agency did not follow its own NEPA regulations, would present a different question.)
It is worth remembering that the Supreme Court is itself considering a NEPA case at the moment, and while this question is not before the Court, it will surely have reached their attention. I would not be at all surprised were some of the justices to concur separately endorsing Judge Randolph's panel opinion, in effect inviting additional litigants to raise this claim in subsequent cases. The NEPA landscape has been permanently altered.
UPDATE: The concurring statement makes clear that the next time a NEPA case implicating CEQ's regulations gets to the D.C. Circuit, the court is likely to disregard the Marin Audubon Society decision as dicta (assuming, of course, that the regulations have not been rescinded by then). The outcome of any such decision, however, is almost certain Supreme Court review, and it would be quite surprising were a majority of justices to disagree with Judge Randolph's analysis.
* * *
The Srinivasan opinion respecting the denial of en banc reconsideration is below.
The government would have a much stronger interest to ban a Chinese AI app that collects proprietary information than to ban a social media app that displays dance videos.
Long-time readers know I am ambivalent about AI. I refuse to use it, even as I know others think it gives them a competitive advantage. I am confident in my ability to write, research, and ideate better without AI. Maybe I'm wrong, but so be it.
I also reacted with some ambivalence to the launch of DeepSeek, a new Chinese AI App. I have no clue whether it is better or worse than OpenAI. But I do worry about the fact that millions of Americans are installing a Chinese AI app on their phones, and will submit troves of proprietary information about anything on their minds. Remember, every query can be tracked by DeepSeek, and by extension, the PRC. We learned as much from the TikTok litigation. We aren't simply talking about people watching dance videos. People ask their AI apps about everything. And I suspect submitting privileged information to a foreign adversary waives any sort of Attorney-Client privilege. The risk of potential blackmail and other compromise is unlimited.
Moreover, as could be expected, the app is generating Pro-PRC answers. You can call it data manipulation. The New York Times reports: "If you're among the millions of people who have downloaded DeepSeek, the free new chatbot from China powered by artificial intelligence, know this: The answers it gives you will largely reflect the worldview of the Chinese Communist Party."
Whatever interest may have supported the TikTok ban seems even greater for DeepSeek. And while the TikTok creators arguably had a First Amendment right to use the app to make videos, there is not a similar expressive interest here. To be sure, I've long argued that some algorithmic outputs may warrant First Amendment scrutiny. But as we move towards general AI, which has very little intercession of the human mind, the First Amendment rights are harder to justify. (I anticipated this shift in a 2013 article.)
Biden knocked TikTok. Will Trump deep-six DeepSeek?
FIRE, which represented the student (Kimberly Diei) reports:
After her First Amendment lawsuit set precedent last fall for student free speech rights, Memphis pharmacist Kimberly Diei agreed to a $250,000 settlement with the University of Tennessee. [The settlement was $180K to Diei, and $70K to her lawyers at FIRE. -EV]
Just a month into her studies in September 2019, UT's pharmacy school investigated Kim for her social media content focused on sexuality, fashion, and music. The college justified the investigation by using vague "professionalism" standards—standards it never provided to Kim—but ultimately dropped that first investigation.
In one tweet, Kim contributed to a trending discussion on Twitter about the song "WAP" by Cardi B and Megan Thee Stallion, suggesting lyrics for a possible remix. In another, she posted a selfie and referenced lyrics from a popular Beyoncé song. [Just to be clear, the lyrics were pretty sexually themed, though that rightly didn't change the First Amendment analysis. -EV]
Unfortunately, Kim's ordeal was not unique. For years, colleges around the country have wieldedprofessionalismcodes against students for their expression even when the student's speech has no bearing on their ability to succeed in a given field. Kim's posts were wholly separate from the college, as her accounts operated under a pseudonym and did not reveal her then-identity as a student.
Yet by the following year, Kim was under a second investigation, and UT administrators voted to expel her. In the midst of preparing for exams, she appealed to the dean, who reversed the decision after hearing from FIRE. Then, FIRE sued on behalf of Kim in February 2021….
In 2024, a federal appeals court agreed, ruling that her expression—which administrators called "sexual," "crude," and "vulgar"—was "clearly protected" by the First Amendment. Crucially, in a blow to the qualified immunity that often shields government actors from paying damages for violating constitutional rights, the court emphasized that previous Supreme Court precedent and prior Sixth Circuit rulings put "beyond debate" that the First Amendment protects Kim's speech.
“Plaintiff has not conducted this litigation as though it involves matters of a highly sensitive and personal nature—instead, she would cloak herself in pseudonymity, and the protections it affords, while publicly lobbing allegations at Defendant by name.”
From Doe v. Maloit, decided today by Magistrate Judge Kathryn Starnella (D. Colo.):
Plaintiff and Defendant were married from 2006 to 2018. In April or May 2022, Plaintiff "began receiving phone calls and emails at her place of employment—a school—from strangers, who informed Plaintiff that there were compromising photographs of her online. Some had been taken by Defendant, others by Plaintiff of herself, all while they had been married. They were taken for her and Defendant's private use, and she never consented to their broader disclosure.
At some point between May and August 2022, Defendant admitted that he had previously posted the photographs to a website called RedClouds, where users can share pornographic content. The photographs then spread to other websites, some of which posted them alongside Plaintiff's name, employment information, and work contact information. Plaintiff had to bring the matter to her employer's attention and hired a lawyer to attempt to get the photographs removed from various websites, but only some of the websites have complied. Plaintiff alleges that Defendant disclosed her photographs online. She lodges three claims against Defendant: (1) disclosure of intimate images, in violation of 15 U.S.C. § 6851; (2) unauthorized disclosure of intimate images, in violation of Colo. Rev. Stat. § 13-21-1401 et seq.; and (3) a request for permanent injunctive relief against Defendant.
Defendant denies wrongdoing, alleging that Plaintiff participated in and consented to the posting of the photographs online. He "assisted Plaintiff, with her knowledge, with trying to take some photographs down since 2022." He assisted her in hiring an attorney to attempt to remove photos that had spread beyond RedClouds, but not all websites complied.
Defendant has also asserted counterclaims against Plaintiff. He alleges that he and Plaintiff were consumers of RedClouds content from 2006 to 2009, and that in 2009 or 2010, they "began using RedClouds as both content consumers and content creators." Plaintiff allegedly "explicitly consented" to posting various photographs to RedClouds, initially with her face blacked out but eventually with her face visible. Defendant alleges that the parties continued to engage in erotic photography content creation until 2022, when they were no longer married.
[UPDATE 1/31/2025, 5:29 pm: As it happens, just today the North Carolina Supreme Court handed down a decision interpreting the North Carolina Constitution, McKinney v. Goins, and reached the opposite result from the Maine high court's decision below.]
An interesting (though very long) majority and dissent handed down Tuesday, in Dupuis v. Roman Catholic Bishop [UPDATE: link added]. The opinions well illustrate how many state courts interpret their state constitutions. Some very brief excerpts from the majority
Legislation reviving claims that have expired under the statutes of limitations applicable at the time of the operative events was not deemed by the framers to be a "law" within the power of the Legislature to enact…. This constitutional hostility to legislative efforts to retroactively impair rights, privileges, and/or property, viewing such efforts as beyond the Legislature's function, is reflected in the earliest of our case law [citing a case from 1823, three years after Maine became a state]….
Contemporaneous common law principles can inform the meaning of constitutional provisions because many constitutional concepts originated in the common law. Post-enactment common law and statutes can also illuminate timeless social understandings and values embedded in the Constitution. Long before the adoption of the Maine Constitution, the common law condemned the concept of retroactive liability….
In terms of sheer numbers, at the time of the adoption of our Constitution and for a lengthy period thereafter, the great majority of jurisdictions precluded the revival of claims after their statutes of limitations had expired. After the Supreme Court's decision in Campbell v. Holt (1885), in which the majority held that revival was permitted, some courts deviated from this position. If one includes jurisdictions with
constitutions that contain express anti-retroactivity provisions … then, despite the Supreme Court's view, the majority of state courts of last resort continue to adhere to the view that revival is precluded.
From Tuesday's Nevada Supreme Court decision in Schuman Henschel v. Carter (for more on an earlier decision in Ruth v. Carter, see here):
This appeal arises out of a defamation countersuit brought by respondent Nickolas Carter against appellants Melissa and Jerome Schuman (collectively, the Schumans). Over the span of several years, the Schumans made statements about Carter's alleged sexual assault of Melissa and other women. One of the other women, Shannon Ruth, sued Carter for sexual battery, and Carter countersued for defamation and related torts and joined the Schumans as counter-defendants. The Schumans filed an anti-SLAPP special motion to dismiss Carter's claims against them….
[Under the Nevada anti-SLAPP statute, once a court determines that] "… the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern[,]" … [the person making the claim must] show "with prima facie evidence a probability of prevailing on the claim." …
"To prevail on a defamation claim, [a public figure] must show (1) a false and defamatory statement; (2) unprivileged publication to a third person; (3) fault; (4) damages, presumed or actual; and … (5) actual malice." Actual malice is demonstrated when a statement "is published with knowledge that it was false or with reckless disregard for its veracity." … "[T]o demonstrate by prima facie evidence a probability of success on the merits of a public figure defamation claim, the [non-moving party's] evidence must be sufficient for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice." …
An excerpt from the long opinion in Kay v. Irish Rover Inc., decided yesterday by Indiana Court of Appeals Judge Paul Mathias, joined by Judges Elaine Brown and Dana Kenworthy:
Dr. Tamara Kay appeals the St. Joseph Superior Court's order granting The Irish Rover, Inc.'s, motion to dismiss her defamation claim…. On the dates the alleged defamation occurred, Dr. Kay was a tenured professor in the Keough School of Global Affairs and the Sociology Department at the University of Notre Dame. Her "academic research and teaching is focused on trade, labor, social movements, globalization, organizations, and global health which includes reproductive health and rights." Many of Dr. Kay's extensive writings in journals, newspapers, and on Twitter focus on advocating for abortion legalization.
The Irish Rover is an independent, student newspaper at the University. {[O]ne of its missions is to articulate and defend the Catholic character of the University.} …
After the United States Supreme Court decided Dobbs v. Jackson Woman's Health Organization on June 24, 2022, Dr. Kay "became more outspoken on the issue of abortion access," including more frequent posts on Twitter. On September 15, 2022, the Indiana General Assembly's legislation limiting abortion in Indiana took effect, although it was enjoined shortly thereafter….
Kay sued over two articles published by the Irish Rover that concerned Dr. Kay's speech. To oversimplify matters somewhat, under Indiana libel law, a libel claim based on speech on matters of public concern can only prevail based on a showing of knowing or reckless falsehood—mere negligence isn't enough, even if plaintiff is a private figure. (In this respect, Indiana libel law is more speaker-protective than the constitutional minimum set forth by First Amendment law.) And here, the court concluded that the Rover's statements were either true or at least reasonable interpretations of the facts that the Rover had, and certainly weren't knowingly or recklessly false:
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