The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

From Monday's decision in City of Conneaut v. Wick, decided by the Ohio Court of Appeals, in an opinion by Judge Robert Patton, joined by Judge Mary Jane Trapp:

Appellant, Francis J. Wick ("Wick"), appeals the decision of the Conneaut Municipal Court, sentencing him to five years of unsupervised community control, a fine of $150, payment of court costs, and 30 days of suspended jail time on the condition that he complete an anger management course and remove "defamatory language" from the back of his vehicle….

This case arises from events that occurred on October 27, 2023. Wick was on Conneaut High School property using vulgar and offensive language in the presence of High School staff members and students. Wick admitted to the trial court that he used profanity towards staff and officials that day. Wick was on the property because he had dropped off his daughter but was later told to return and pick her up.

Wick was angry that his daughter had been suspended from school, and there was some confusion about when she was able to return. After shouting profanities at teachers and officials, Wick squealed his tires and left the High School. When Wick arrived at his nearby home, officers were there waiting for him. Wick continued to shout profanities at officers out the windows of his home. On October 30, 2023, Wick again was at Conneaut High School, where Officer Rose was also present, and he shouted profanity at faculty and Officer rose, and again drove off.

Officer Timothy Rose ("Officer Rose") was present during the October 27, 2023, incident. During Sentencing, Officer Rose advised the trial court that sometime after the incident at the High School and Wick's home, he discovered the words "F Officer Rose" written in metal paint pen on the back of Wick's vehicle. Wick stated at sentencing that his daughter had written the statement on a 1996 Ford Explorer that he owned….

Wick entered a plea of no contest to the Aggravated Disorderly Conduct and Disorderly Conduct charges, and [a] Reckless Operation [of a Motor Vehicle] count was dismissed. On the Disorderly Conduct charge, the trial court fined Wick $100. On the Aggravated Disorderly Conduct count, the trial court sentenced Wick to thirty days in jail, suspended, five years of unsupervised community control, and a $150 fine. The trial court further added the conditions that Wick attend anger management treatment and remove the "defamatory" statement regarding Officer Rose from his vehicle. Wick's appeal to this Court only pertains to the sentence imposed for the Aggravated Disorderly Conduct charge….

Free Speech

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Some of you may recall that several months ago the band I play in ("Bad Dog") was embroiled in a rather unpleasant copyright infringement episode (see my earlier blog posting here) in which recordings from an album we had recently released had been copied and distributed to all of the major music-streaming platforms (Spotify, Apple Music, Amazon Music, etc.) without our permission and under new song titles and new (and pretty obviously fictitious) "artist" names.

David Segal of the NY Times picked up the story and published an (excellent) article about it that ran on the front page of the Sunday Times Business Section, which generated a fair bit of buzz in music industry circles.

Shortly after the article came out, I was contacted by someone in the US Attorney's office in NYC, and I was subsequently interviewed for an hour or so by an investigator from that office, to whom I gave as many details as I could about what had happened to us, and to our files. He didn't say - and I didn't ask - what his purpose was in gathering all this information, but I had the impression that they were engaged in some sort of ongoing investigation involving the music-streaming business, and wanted to see if our problem was possibly related somehow to something that they were already looking into.

It turns out there was indeed an ongoing investigation, which has now yielded an indictment, released last week, alleging that Michael Smith, a musician from North Carolina, "orchestrated a scheme to steal millions of dollars of musical royalties by fraudulently inflating music streams on digital streaming platforms such as Amazon Music, Apple Music, Spotify, and YouTube Music."

The DOJ announcement of the unsealing of the indictment is available here; the full-text of the indictment is here.

The indictment contains some pretty astonishing details; I urge anyone interested in how the music industry works these days to look it over.

Here's how Smith's scam allegedly worked (all quotations are from the indictment):

First, he contracted with an AI firm specializing in music production (unnamed, and referred to as "Co-Conspirator 3" in the indictment) to deliver newly-created "songs" to him, and to transfer all the rights in those songs to him. The quality of this material may be inferred from the fact that the contract obligated CC-3 to deliver up to 10,000 "songs" to Smith every month, and the indictment alleges that between 2019 and 2024, CC-3 produced hundreds of thousands of songs for Smith.

SMITH then "created randomly generated song and artist names for audio files so that they would appear to have been created by real artists rather than artificial intelligence."

The indictment gives these examples. First, an "alphabetically consecutive selection of 25 of the names of the AI songs SMITH used:

"Zygophyceae," "Zygophyllaceae," "Zygophyllum," "Zygopteraceae," "Zygopteris," "Zygopteron," "Zygopterous," "Zygosporic," "Zygotenes," "Zygotes," "Zygotic," "Zygotic Lanie," "Zygotic Washstands," "Zyme Bedewing," "Zymes," "Zymite," "Zymo Phyte," "Zymogenes," "Zymogenic," "Zymologies," "Zymoplastic," "Zymopure," "Zymotechnical," "Zymotechny," and "Zyzomys."

Second, an alphabetically consecutive selection of 25 of the names of the "artists" of the AI songs SMITH used :

"Calliope Bloom," "Calliope Erratum," "Callous," "Callous Humane," "Callousness," "Callous Post,"(Uncle Callous!!) "Calm Baseball," "Calm Connected," "Calm Force" "Calm Identity" "Calm Innovation" "Calm Knuckles" "Calm Market" "Calm The ' ' , ' ' Super," "Calm Weary," "Calms Scorching," "Calorie Event," "Calorie Screams," "Calvin Mann," "Calvinistic Dust," "Calypso Xored," "Camalus Disen," "Camaxtli Minerva," "Cambists Cagelings," and "Camel Edible."

To get his songs posted to the music-streaming platforms, Smith contracted with at least two different music distribution companies - a "Manhattan-based music distribution company ("Distribution Company-1") [and] a Florida-based music distribution
company ("Distribution Company-2")."

Meanwhile, Smith created several thousand fake email accounts which he then used to create fake "bot" user accounts at the major streaming platforms. At one point he had over 10,000 active bot accounts on the major platforms. He then programmed the bots so that they would stream "his" songs, over and over again, 24/7.

"After registering the Bot Accounts, MICHAEL SMITH, the defendant, then caused the Bot Accounts to continuously stream songs he owned using the following methods:

a. SMITH used cloud computer services so that he could use many virtual computers at the same time.

b. SMITH used some of the Bot Accounts on each virtual computer at the same time. SMITH typically used the web players for each of the Streaming Platforms, and had a number of Bot Accounts simultaneously streaming music on separate tabs in internet browsers on the virtual computers.

c. SMITH purchased-and subsequently modified-"macros," or small pieces of computer code that automatically continuously played the music for him."

As a result, Smith "obtained millions of dollars in royalties based on the artificially inflated streams of his music."

"On October 20, 2017, MICHAEL SMITH, the defendant, emailed himself a financial breakdown of how many streams he was generating each day and the corresponding royalty amounts. In the email, SMITH wrote, in substance and in part, that he had 52 cloud services accounts, and each of those accounts had 20 Bot Accounts on the Streaming Platforms, for a total of 1,040 Bot Accounts. He further wrote that each Bot Account could stream approximately 636 songs per day, and so in total SMITH could generate approximately 661,440 streams per day. SMITH estimated that the average royalty per stream was half of one cent, which 7 would have meant daily royalties of $3,307.20, monthly royalties of $99,216, and annual royalties of $1,207,128."

Nice work if you can get it!

Smith has been charged with wire fraud, conspiracy to commit wire fraud, and money laundering. Notice: no copyright infringement here, unlike in our Bad Dog example, because whatever else Smith might have been doing, he did own the copyright in the "songs" that were composed for him.

Needless to say, I have absolutely no idea whether these allegations against Smith are true, let alone whether they can be proved beyond a reasonable doubt.

But it's pretty clear that whether or not Smith is guilty as charged, someone could have done - and may still be doing - what he's been charged with. That is, as a technical matter, nothing in what Smith is alleged to have done strikes me as impossible, or even particularly difficult, at least for someone who has substantial programming chops - like, say, your clever teenage nephew. And given the money that can be made by a scam like this, it's hard to believe that nobody else is in on the game.

And that, I have to say, bums me out. It's like Gresham's law: bad music will chase out good music. If the streaming services are clogged up with garbage, real musicians will be less inclined to use them to distribute their music. And that, I would say, is a real loss.

In my continuing series related to my new book Habits of a Peacemaker, this next post seems especially apropos since today is the anniversary of the September 11 attacks. Peacemakers—defined for my purposes as those among us who can have productive conversations about hard topics—generally assume the best about the people with whom they are conversing, regardless of their identities or even deeply held beliefs about controversial issues. Below is an excerpt from Habits Chapter 3, "Assume the Best About People":

Some time ago, I received an unusual email. It was from two high-level federal judges.… One had been appointed by President Barak Obama, the other by President Donald Trump. They informed me that once a month, they and a group of other … judges met together in their private capacities for a prayer breakfast. This was not a public event, not a spectacle where politicians and media showed up to try to garner favor with the voting public.

It was private. Most people never learn of it. The judges—of different faiths and very different political and judicial ideologies—met together throughout the year to enjoy breakfast and pray with one another, usually about people in their lives who were suffering. They were wondering if I would be willing to come and talk with them about one of my books [one not directly related to law].

I agreed. I … met them … early one morning. Outside, several news outlets were setting up cameras for a story about a case some of these jurists would hear later in the morning.

As soon as I entered the building, one of the judicial assistants lead me through security, down a narrow hall, and into a small conference room, where the judges eventually joined. To see them all sitting together, people who are often portrayed as being at one another's throats, was touching to me. Despite their very real differences, they recognized the good in one another and the parts of their identities they had in common, and they shared those over a bite to eat. Like everyone else in our world, they worried over their loved ones, they expressed concern over people they personally knew who were suffering, and they shared empathy with each other over their very human struggles.

I wish everyone could see people like this in that setting.

Steven Collis researches and teaches on religion law, productive discourse, and other First Amendment topics. He is the founding faculty director of the Bech-Loughlin First Amendment Center and its Law & Religion Clinic. Before joining Texas Law, he was a Research Fellow in the Constitutional Law Center at Stanford Law School. His scholarly work has been cited by Supreme Court justices and published in various law reviews and in his book Deep Conviction. Professor Collis is also the author of The Immortals, Praying with the Enemy, and Habits of a Peacemaker, which provides habits for developing the skill to engage in productive discourse about hard topics. The American Library Association has praised him as "a much needed voice of reason and compromise."

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I post this essay every year in honor of September 11th, 2001 (see 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, 2023).

Every generation has a defining moment. For my generation, it was 9/11/2001.

Here are my memories of 9/11/2001. It was a Tuesday.

I was a Senior at Staten Island Technical High School, which is about 20 miles from ground zero. We were about 1 week into the school year. I was sitting in Ms. Endriss's 2nd Period A.P. Political Science class. We were going over some NYC Public School discipline policy, and discussing what kinds of weapons were forbidden in schools (brass knuckles were a no-no). A student walked into the classroom late. He had heard a rumor that a Cessna airplane had hit the World Trade Center. A girl in my class exclaimed that her father worked in the World Trade Center. I could see the look of fear in her eyes, even though none of us had any clue what was going on. She wanted to call her dad. I was the only student in the class with a cell phone, which I promptly gave her. The call did not go through–he worked on one of the upper floors of the tower, and passed away.

We finished second period, apprehensively. I logged onto a computer, and attempted to check the news. I recall one friend told me to check MTV.com for news. At that point, the reports were unclear, and no one knew what was going on. We proceeded to 3rd period A.P. Calculus with Mr. Curry. At that point, someone told us that it was not a Cessna, but in fact a passenger jet. We were all getting nervous, and didn't quite know what was going on. Later in class, a student came into the class and said a second plane had crashed into the other tower. We also heard that there was an explosion at the Pentagon. At that point, we knew it was not an accident.

I remember leaving the class (something I never did) and walked up to the library where I knew there was a T.V. Just as I arrived in the library, I saw the first tower collapse. I watched it live. I was stunned and could not believe what was happening before my eyes. I grabbed my cellphone to call home, and almost immediately after the tower collapsed, I lost all service. I was not able to call my mom in Staten Island, though I could call my dad who was working in Long Island. Long distance calls seemed to work, but local calls were not working. I remember my dad told me that this was a life-changing event, and he had no idea what would happen. I heard some rumors on TV that there were 15 planes that were hijacked, and unaccounted for in the skies.

By lunch time, the school guidance counselor set up a conference room where students could go to talk. I remember seeing student after student who had a family member or friend who worked in the World Trade Center or in Manhattan. A large number of firefighters and police officers reside in Staten Island. Tragically, many of the emergency responders who perished were from Staten Island. What could we even tell those students?

After that, the day become a blur. I remember hearing that the second tower had collapsed, though I did not see it. I remember watching the entire United States Congress sing God Bless America on the steps of the Capitol. I had never been so afraid in my life. Later that night, I took a bus home. The New York City public buses were still running, and I remember the driver was not collecting fares. On the bus, people were talking about the imminent war (against whom, no one knew) and the imminent draft. Some were saying that students were exempt from the draft.

The next morning, September 12, 2001, I woke up and smelled this horrible smell. The air had this pungent odor, that reminded me of burned flesh at a BBQ. I went to school that morning, and attendance was low. In all of my classes, we were talking about war. I asked whether the US would need to use nuclear weapons. My teacher explained that carpet bombing–a phrase I had never heard of–could wreak plenty of damage in Afghanistan. Later that week students began making sandwiches for the relief workers, and collecting goods to donate to the relief effort.

From Staten Island, I could see the smoldering Ground Zero. It was surreal. The skyline looked so very empty. To this day, whenever I look at the Skyline, a sight I had seen thousands of times, I have the most bizarre feeling. Additionally, whenever we saw an airplane fly overhead, we all freaked out. This lasted for months.

For days, weeks, and months after 9/11, people in Staten Island were waiting for their loved ones to come home. Many patients were alive, but were so badly burned that they could not be identified. People prayed that these unnamed patients would soon come home. One woman whose husband was a firefighter waited outside her home every single night for months. She eventually put a candle in her window every night. Later, she put a memorial lamp in her window. He never came home. Others were simply waiting for remains of their loved ones to be returned. Many were never identified.

I ordered a gas mask from eBay, which I kept in my car, fearing a biological weapon attack on New York City. I remember I tried it on once and I almost suffocated. I wanted to order some Cipro for an anthrax attack, but I could not locate any.

It is hard to encapsulate what a New Yorker went through on 9/11. Thinking back on that day, when I was just 17 years old, I realized that I had to grow up awfully quick. It was a new world we were living in.

Never forget. Ever.

9/11/1958: Cooper v. Aaron is argued.

Politics

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The following is an excerpt from Chapter 6, "Be Open to Change," of my book Habits of a Peacemaker:

In the introduction, I mentioned the 1943 Barnette case, in which the Supreme Court ruled that school districts could not force Jehovah's Witness children to say the Pledge of Allegiance. I return to that now to illustrate an important principle. The case is remarkable for a number of reasons. It represents the foundation and, arguably, the founding of our modern understanding of freedom of speech and thought. It included what is often considered to be some of the most powerful language regarding the limits of government action in the modern era. In addition to what I shared in the introduction, it includes some of these important gems:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Or this, when talking about our constitutional system and how it limits government from having power in certain areas of our lives:

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government…. Observance of limitations of the Constitution will not weaken government in the field appropriate for its exercise.

And, finally, this sentence, explaining the purposes of the Bill of Rights:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

It may come as a shock to those not trained in the law, but the above quotations were not well established as part of the American experience until around the time of the Barnette decision, in the middle of the twentieth century. Prior to that, government, and particularly state and local governments, enjoyed tremendous power over people's lives. The primary reason we don't often hear about that is because lawmakers for the first one hundred years of our country's existence were less inclined to pass as many laws as they do today.

The Barnette decision represented an important shift in American constitutional law and one that paved the way for much of the success and growth—with its accompanying discomfort—of the twentieth century.

But it was almost not to be.

Politics

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9/10/1949: Justice Wiley Rutledge dies.

Politics

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From the plaintiff's argument in Doe v. Northwestern Univ. (N.D. Ill.); Judge John Robert Blakey has granted the motion, without a detailed explanation, but likely because he agreed with its general argument:

Plaintiff [John Doe 3] is a Jewish student at Northwestern University … who has been subjected to threats of physical violence while on campus and is the victim of retaliation and false accusations by individuals that attended pro-Hamas demonstrations at Northwestern. Other Jewish students on campus have been physically assaulted and have similarly faced severe and pervasive hostility on campus as a result of their Jewish identity. The perpetrators of these acts of intimidation and violence have acted with impunity and are waiting for Plaintiff on campus when he returns this Fall quarter. Plaintiff thus brings this motion to proceed pseudonymously in order to protect his identity and avoid further victimization.

Northwestern has adopted various policies designed to ensure the privacy of victims of discrimination and other wrongs. Not only does Northwestern claim to protect victims, but the university has also stated that it will protect the very individuals that are responsible for the harassment and threats of violence Plaintiff endured on campus. Northwestern recognizes the potential harm Plaintiff would face if his identity was exposed and does not oppose Plaintiff's request for anonymity. Nevertheless, because the Seventh Circuit disfavors the use of pseudonyms by litigants, the Court must engage in an exacting independent analysis of Plaintiff's request.

The Seventh Circuit has long rejected the use of a rigid test for determining whether the harm to the plaintiff from public identification exceeds the likely harm from concealment of their identity. Rather, the Seventh Circuit requires district courts to engage "in the careful and demanding balancing of interests required in making this determination," which includes consideration of, inter alia, whether a victim or wrongdoer seeks anonymity, whether disclosure risks retaliation to the victim, whether the public interest is served by anonymity, and whether a defendant will suffer any prejudice. The Seventh Circuit's recent decisions in Doe v. Trs. of Ind. Univ. (plaintiff John Doe sued Indiana University after he was expelled for physically abusing female student), and Doe v. Loyola Univ. Chi. (plaintiff John Doe sued Loyola after he was expelled for nonconsensual sexual activity with female student), do not change this analysis, because (as discussed below) neither sets forth a rigid test to be applied to victims of discrimination who are at risk of further violence and retaliation for their religious identity.

As a victim of severe hostility and discrimination based on his Jewish identity, Plaintiff reasonably fears further harm and retaliation from disclosure of his identity. As explained below, this harm is not speculative but grounded in the calls for violence against Jews on campus, and indeed, actual acts of violence. Moreover, Plaintiff reasonably fears retaliation because his perpetrators remain on campus and, over the course of the summer, have continued their efforts to harass and threaten Jews out of hatred….

Free Speech Right of Access

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My new article "The Presumptive Case for Organ Markets," is now available for download on SSRN. It will be part of a forthcoming Routledge volume on organ markets edited by James Stacy Taylor and Mark Cherry. Here is the abstract:

The debate over legalizing organ markets has gone on for years, and the basic arguments are well-known. This chapter recasts the issue by emphasizing not just the nature, but the enormous magnitude of the considerations weighing in favor of legalization: saving tens of thousands of innocent lives, preventing prolonged suffering for many thousands more people, and enhancing bodily autonomy. That magnitude creates a strong presumption in favor of legalization, at least in some substantial form. Any countervailing argument must not only be valid in and of itself, but also sufficiently weighty to overcome the presumption. Standard arguments based on the risks of kidney donation, concerns about the "exploitation" of the poor, and dangers of "commodification" and moral corruption, fall short of that standard. Recent evidence on the number of lives that can be saved by legalizing organ markets and the diminishing risks of donating kidneys further accentuate the enormous magnitude of the gap between the benefits and costs of legalization

Part I provides an overview of the kidney shortage in the United States and the immense potential gains of legalizing organ sales. Doing so would save tens of thousands of lives every year, and also save many thousands more kidney failure patients from the pain and suffering of enduring many months or years of kidney dialysis. It would also enhance rights of bodily autonomy for both sellers and users of kidneys put on the market. These enormous benefits create a strong presumption in favor of legalization. Part II goes over several standard objections and explains why they fail to meet that demanding standard. These include claims that organ markets would lead to "exploitation" of the poor, arguments that they would lead to the commodification of the body, and concerns that they impose too great a risk on sellers. Each of these arguments lacks the necessary weight. In addition, to the extent objections are valid, they can be addressed by steps short of banning organ sales entirely.

From Judge Loren L. AliKhan's opinion today in Shalit Barrett v. Atlantic Monthly Group LLC:

Ms. Barrett began working as a reporter for The New Republic magazine in the early 1990s after graduating from Princeton University. At that time, she used her maiden name, Ruth Shalit, as her byline. Within her first few years on the job, she published many feature-length stories and was hired to write political stories for The New York Times Magazine and GQ.

In 1994 and 1995, Ms. Barrett came under fire for plagiarism in two articles in The New Republic. First, Ms. Barrett had written a story "in which three sentence[s] of biographical information and a quote" had been taken, without attribution, from a Legal Times article. The second article, a profile of Steve Forbes, "contain[ed] 29 words from a National Journal article" that were also unattributed to the original author…. Also in 1995, a factual error was discovered in an article Ms. Barrett had written for The New Republic about The Washington Post. The error was addressed "using the standard practice of … a post-publication correction." Ms. Barrett worked at The New Republic for four more years until she departed in 1999. None of Ms. Barrett's articles from 1996-1999 were found to contain factual errors and The New Republic did not issue any corrections to her work in this time span.

Twenty years later,

The Atlantic hired Ms. Barrett to write a long-form investigative article detailing the "efforts of affluent parents to use niche sports to give their already-privileged children further advantages in the competitive admissions process at elite colleges and universities." The eventual article, titled "The Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents" sparked the controversy that led to this lawsuit.

That controversy chiefly involved the description of a confidential source as having four children rather than three, which was apparently intended to help conceal the source's identity. That was uncovered and led to public criticism, followed by a retraction that Barrett says was libelous. Here's the heart of the court's analysis of the defamation claims:

Ms. Barrett raises four claims of defamation per se based on the following groups of statements: (1) accusations that she acted dishonestly with respect to the article; (2) accusations that she was fired from The New Republic in 1999 for misconduct; (3) statements alleging that she tried to disguise her identity by using "Ruth S. Barrett" in her byline; and (4) statements that she is a dishonest journalist with a history of fabricating facts….

Free Speech Libel

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Here is the Introduction; the full article is here:

Regulatory constraints on the provision of truthful information to consumers about tobacco products may be having deadly consequences. Different types of tobacco products present different degrees of risk, yet a substantial proportion of consumers are unaware of these differences. Existing regulations governing tobacco products limit the ability of manufacturers to address these misperceptions. As a consequence, well-intentioned public health regulations may be undermining the protection of public health.

Regulation of commercial speech is a major component of federal regulation of tobacco products. Even before the enactment of the Family Smoking Prevention and Tobacco Control Act ("Tobacco Control Act"), Congress authorized cigarette warning labels and the regulation of cigarette advertisements. In 2009, this legislation expanded the regulation of speech, imposed a permitting regime for comparative health claims of alternative tobacco products and subjected cigarette alternatives, such as electronic nicotine delivery systems (ENDS) and other vaping products, to the same regulatory regime as cigarettes.

Federal regulation of tobacco company speech was adopted to counteract tobacco industry misinformation and manipulation of consumers. Controlling the advertisement, promotion, and labeling of tobacco products was embraced as a central element of reducing smoking rates and youth initiation in particular. While the regulation of tobacco advertising and labeling was considered an important public health measure, it was nonetheless subject to First Amendment scrutiny.

Since the adoption of federal tobacco legislation, the Food and Drug Administration (FDA) has asserted regulatory authority over ENDS and other vaping products as "tobacco products," subjecting them to the same regulatory regime as cigarettes and other traditional forms of tobacco products. This includes labeling requirements and regulations governing tobacco product advertising. It also includes restrictions on providing consumers with truthful, and potentially life-saving, information about the relative risks of competing products.

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A new paper by Stephen Choi and Mitu Gulati, "How Different Are the Trump Judges?" seeks to evaluate the quality of Trump's judicial appointments as compared to their colleagues on the bench. It produces some interesting results. Here's the abstract.

Donald J. Trump's presidency broke the mold in many ways, including how to think about judicial appointments. Unlike other recent presidents, Trump was open about how "his" judges could be depended on to rule in particular ways on key issues important to voters he was courting (e.g., on issues such as guns, religion, and abortion). Other factors such as age and personal loyalty to Trump seemed important criteria. With selection criteria such as these, one might expect that Trump would select from a smaller pool of candidates than other presidents. Given the smaller pool and deviation from traditional norms of picking "good" judges, we were curious about how the Trump judges performed on a basic set of measures of judging. One prediction is that Trumpian constraints on judicial selection produced a different set of judges. Specifically, one that would underperform compared to sets of judges appointed by other presidents. Using data on active federal appeals court judges from January 1, 2020 to June 30, 2023, we examine data on judges across three different measures: opinion production, influence (measured by citations), and independence or what we refer to as "maverick" behavior. Contrary to the prediction of underperformance, Trump judges outperform other judges, with the very top rankings of judges predominantly filled by Trump judges.

Some of the data Choi and Gulati compile is quite interesting, in particular some of the rankings of the most productive and most-cited judges.

Here, for instance, is the list of the most productive circuit judges, adjusted for circuit court norms.

Michael Scudder - 7th Circuit (Trump)
Amy St. Eve - 7th Circuit (Trump)
Andrew Oldham - 5th Circuit (Trump)
James Ho - 5th Circuit (Trump)
David Barron - 1st Circuit (Obama)
Kevin Newsom - 11th Circuit (Trump)
Jennifer Elrod - 5th Circuit (G.W.Bush)
Steven Menashi - 2nd Circuit (Trump)
Stuart Duncan - 5th Circuit (Trump)
Daniel Bress - 9th Circuit (Trump)
Lawrence VanDyke - 9th Circuit (Trump)

And here is a list of the circuit court judges that are most cited by judges in other circuits.

Eric Murphy - 6th Circuit (Trump)
Amy St. Eve - 7th Circuit (Trump)
Kevin Newsom - 11th Circuit (Trump)
John Nalbandian - 6th Circuit (Trump)
Cheryl Krause - 3rd Circuit (Obama)
David Porter - 3rd Circuit (Trump)
Chad Readler - 6th Circuit (Trump)
Stuart Duncan - 5th Circuit (Trump)
Britt Grant - 11th Circuit (Trump)
James Ho - 5th Circuit (Trump)

These results may be more surprising to some than to others.

(Hat tip: Legal Theory Blog)

Profs. Benjamin Edwards, Jayne S. Ressler, Joan Steinman, and I—who are among the few academics who have written on the American law of pseudonymous litigation—have just filed an amicus brief in Doe v. Trustees of Indiana Univ., supporting a petition that asks the court to consider this case, and help guide lower federal courts about when pseudonymity should be available. Here's our Summary of Argument; you can also read the whole brief (and I expect to post some excerpts from it as well):

[1.] In more than a thousand federal cases each year, plaintiffs endeavor to file under a pseudonym. Sometimes, courts explicitly permit this. Sometimes, they do not. Sometimes, they do not address the issue at all.

Decisions about whether to permit pseudonymity are important. They affect the public's right to monitor and supervise the work of the federal courts. They affect the incentives to bring or not bring a case, and to defend or settle it. They affect the accuracy and efficiency of the judicial process. They may cause unfairness to the parties.

[2.] Yet this Court has never decided whether or when pseudonymity is appropriate. At times it has allowed pseudonymous cases to come before it, but without setting forth any test for when courts should allow pseudonymous litigation. Left adrift, twelve circuit courts developed different tests that have led to different results for similarly situated litigants.

Petitioners correctly identify a circuit split. But because many of the factors under the various circuits' tests are so vague, courts also routinely disagree on how to apply those factors, thus often producing inconsistent results. Courts do not agree, for instance, on when pseudonymity should be allowed in cases involving alleged sexual assault, mental illness, or copyright-infringing use of pornography. They do not agree on whether pseudonymity should be available to protect a plaintiff's reputation and employment prospects. And the list goes on.

[3.] This inconsistency is likely to endure, unless this Court steps in. Every circuit reviews pseudonymity determinations for abuse of discretion, which usually leads to the trial court's determination being upheld: Both a decision to grant pseudonymity and a decision to deny it, on the same facts, could easily be viewed as within the district court's discretion.

As a result, circuit courts generally will not set precedents that harmonize lower court decisions about pseudonymity. Similarly situated litigants will continue to be treated differently. And practitioners and prospective litigants will remain in the dark about whether pseudonymity will be available. This Court should grant certiorari to provide at least some guidance to lower courts on these important matters.

Thanks to Stanford Law School students Charles Edward Power, Andrew P. Thompson, and Olivia Morello, who worked on the brief with me.

Free Speech Right of Access

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Here is an excerpt; the full article is here:

At-home testing—DNA testing, for example—is one of those personalized medicine advances that would have been unthinkable not too long ago. DNA tests can tell us about our ancestry, which diseases we may be especially prone to, and which drugs might work especially well or poorly for our body.

Personalized medicine can adjust medications not only to DNA which is unchanging but also to the dynamic response of RNA, proteins, and metabolites. Chen et al. describe how a patient was treated via a "personal omics profile (iPOP), an analysis that combines genomic, transcriptomic, proteomic, metabolomic, and autoantibody profiles from a single individual over a 14-month period." Studies like this point to a future in which we will be able to measure a disease or an infection and a body's response across many different variables in close to real-time. A personal omics profile could thus optimize healthcare strategies not just to a particular person but to a particular person at a particular time and place.

And we do have a history of making use of some aspects of personalized medicine in the United States. While the most advanced tests and devices are not yet integrated with the medical mainstream, pregnancy tests and AIDS tests have been common for years. The recent COVID pandemic also illustrated the value of real-time, at-home tests for viral antigens. Popular wearables like Fitbit are relatively simple medical devices that provide real-time measurements for things such as blood oxygen levels, skin temperature, and heart rate. Much more will be possible as sensors become cheaper, more refined, and more integrated with our bodies….

Personalized medicine, however, has advanced at a far slower rate than the underlying data and technology. U.S. Food and Drug Administration (FDA) regulation has slowed adoption and increased costs for tests and devices that inform patients about their own bodies. In fact, the FDA has a long-standing fear and antipathy towards personalized medical tests.

In 1972, the FDA confiscated thousands of home pregnancy tests, declaring that they were "drugs" meant to diagnose a "disease" and thus fell under the FDA's regulatory dominion. The case went to the U.S. District Court for the District of New Jersey, and Judge Vincent P. Biunno ruled that that the FDA had overstepped. "Pregnancy," he said, "is a normal physiological function of all mammals and cannot be considered a disease…. A test for pregnancy, then, is not a test for the diagnosis of disease. It is no more than a test for news." As a result of Judge Biunno's ruling, home pregnancy tests are today easily available from pharmacies, grocery stores, and online shops without a prescription….

Free Speech

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With the launch of my new book Habits of a Peacemaker: Ten Habits to Change Our Potentially Toxic Conversations into Healthy Dialogues, I will be guest blogging here on some themes from the book. Its aim is to provide practical skills to help readers become the type of people who can use their free speech rights effectively to have productive conversations about hard topics.

One of those skills peacemakers engage in regularly is searching for the best argument against their position on any issue. They may not find that argument persuasive, but learning it and knowing it helps them nuance and strengthen their views.

Sadly, the Israel-Hamas conflict, and government and university reactions to speech around it, serve as a stark reminder that too often, too many are not committed to that norm. Rather, for certain topics they hold most dear, most people prefer to silence opposing views, instead of grappling with them. And that instinct is why we need neutral principles for the freedom of speech.

Politics

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Mastriano v. Gregory (W.D. Okla.) involves a lawsuit that's mostly about a controversy related to Pennsylvania state senator Douglas Mastriano's Ph.D. thesis (in military history). Some backstory, from the Canadian Broadcasting Corporation (Aidan Cox):

The University of New Brunswick has become the target of legal action by a Republican politician in Pennsylvania who's accusing the school of leaking his doctoral thesis and of participating in a scheme to discredit his research on a First World War hero.

Doug Mastriano, a U.S. Army veteran and state senator, is suing UNB and several of its faculty members following a wave of criticism directed at the thesis he wrote on Sgt. Alvin C. York that earned Mastriano a PhD from the university in Fredericton.

"Defendants embarked on a racketeering enterprise to deprive Col. Mastriano of his intangible property interests in his PhD, his books, and his speaking engagements," says the lawsuit, filed in Oklahoma by lawyer Daniel Cox….

The lawsuit says it was filed in that court because James Gregory …, one of the named defendants, lives in that jurisdiction….

The lawsuit also includes a libel claim, but the alleged libel at the heart of Mastriano's libel claim (one of several claims in the case) was sealed, and parts of an online article that is claimed to be the basis for the lawsuit was redacted. I successfully moved to intervene and unseal those exhibits (you can see them here and here), and it turns out that the libel claim isn't about the thesis after all. Rather, it stems from a letter sent in the name of UNB History Department faculty that condemns Mastriano on ideological grounds, e.g.,

Mastriano's public statements reflect an anti-2SLGBTQQIA+, Islamophobic, sexist, racist, anti-science, violently authoritarian ideology antithetical to our values.

Free Speech Libel Right of Access

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