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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Amendment Roundup: Looking for Historical Tradition in All the Wrong Places
The Government drops reference to the slave codes as a historical analogue in Rahimi.
"The Government … points to laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including … slaves," noted the Fifth Circuit in U.S. v. Rahimi. Applying the Supreme Court's test in N.Y. State Rifle & Pistol Ass'n v. Bruen, the court found the federal ban on gun possession by a person with a domestic violence restraining order (DVRO) to lack Founding-era precedent and hence violates the Second Amendment.
In its merits brief in the Supreme Court, the Government drops any mention of slavery like a hot potato. However, it cannot escape the racist taint of so many historical gun laws. It approvingly cites California's "Greaser Act" of 1855 which provided: "All persons who are commonly known as 'Greasers' or the issue of Spanish and Indian blood, … and who go armed and are not known to be peaceable and quiet persons, and who give no good account of themselves, may be disarmed by any lawful officer, and punished otherwise as provided in the foregoing section." That was 90 days at hard labor.
The Second Amendment recognizes the preexisting "right of the people to keep and bear arms," which laws like the above violated. The Government devotes several pages under the heading: "History confirms that Congress may disarm persons who are not law-abiding, responsible citizens." While Bruen made reference to "law-abiding, responsible citizens," it did not purport to substitute that term for "the people." As the Greaser Act illustrates, the Government places no limit on what laws are passed and thus who is "law-abiding."
What Does "Maliciously" Mean, When an Extortion Statute Bans "Maliciously Threaten[ing]"?
From Tomlinson v. State, decided today by the Florida Supreme Court, in an opinion by Justice John Couriel:
Kevin Tomlinson threatened to ruin the reputation of two fellow real estate brokers unless they paid him. Must the State prove that Tomlinson made this threat with hatred for the complainants in seeking a conviction under Florida's extortion law? …
In April 2015, Kevin Tomlinson filed a complaint with the Miami Association of Realtors (MAR) alleging that two brokers, Jill Hertzberg and Jill Eber, known in the market as "the Jills," were preventing other brokers from courting their clients by manipulating data in a listing service that MAR operated. In their response to the complaint, the Jills took responsibility for altering the data. Nonetheless, the grievance process continued.
Tomlinson demanded that the Jills pay $400,000, or else he was "going to ruin" them "by, among other things, 'call[ing] the Wall Street Journal' and convincing the Florida Department of Business and Professional Regulation to take away the Jills' real estate licenses." "He told [Hertzberg] that her reputation was at risk, and that he did not want her 'beautiful career to be marred.' He also mentioned that other brokers were interested in filing similar complaints, but that he had no desire to 'corral all these people who want to bring down the Jills.'" They agreed to the $400,000 (apparently as part of a police-supported arrangement to gather evidence against him), but he upped the demand to $800,000.
Tomlinson was convicted of extortion under Florida Statutes § 836.05, which at the time provided (emphasis added):
Whoever … maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree ….
"As Citizens We Have No Constitutional Right to a Poirot. We're Lucky if We Even Get a Clouseau"
Words of wisdom from commenter mulched.
California Public Records Requester Can File Anti-SLAPP Motion Objecting to Attempt to Block Request
The motion allows early dismissal of a lawsuit, here the lawsuit that aimed to block UC Irvine from responding to a public records request from the Center for Scientific Integrity (the Retraction Watch people).
From today's California Court of Appeal opinion in Iloh v. Regents of U.C., decided by Justice Thomas Goethals, joined by Justices Maurice Sanchez & Joanne Motoike; this case is important because it lets anti-SLAPP motions be brought not just by defendants who are being directly sued (here, that's the UC) but also by the "real parties in interest" whose public records request triggered the lawsuit:
The Center for Scientific Integrity (CSI) is an organization that reports on academic retractions and accountability. CSI wrote an article about Constance Iloh, a professor at the University of California, Irvine (UCI), after several academic journals retracted articles Iloh had written due to concerns about possible plagiarism or inaccurate citation references. In a follow-up to that article, CSI sent UCI a records request under the California Public Records Act (CPRA) …, requesting Iloh's postpublication communications with the journals and UCI.
Iloh filed a petition for writ of mandate, declaratory relief, and injunctive relief against UCI to prevent disclosure of her communications, and later added CSI as a real party in interest. She then filed a motion for preliminary injunction to prevent disclosure. Meanwhile, CSI filed a motion to strike Iloh's petition under the anti‑SLAPP (strategic lawsuit against public participation) statute.
Our first opinion in this case concerned Iloh's motion for preliminary injunction. The trial court denied that motion on the grounds that Iloh had not established a likelihood of prevailing on the merits, and we affirmed that order.
We now consider CSI's anti-SLAPP motion. The trial court denied the motion, finding that although protected activity may have led to the petition, it was not the "basis" for the petition. We disagree. In issuing the CPRA request, CSI was engaging in newsgathering so it could report on matters of public interest, such as how a public university funded largely by taxpayer dollars resolves quality or integrity problems in its professors' publications. CSI was therefore engaged in protected activity when it issued the CPRA request.
Iloh filed her petition for writ of mandate to prevent UCI from complying with CSI's CPRA request. By targeting and seeking to impede CSI's newsgathering activity, Iloh's petition threatens to chill CSI's speech-related processes like newsgathering; if successful, this could inhibit CSI's exercise of free speech. This is the type of lawsuit the anti-SLAPP statute is designed to address, and it should be stricken if Iloh cannot demonstrate a probability of prevailing on her petition.
Court Rejects Lawsuit Claiming Police Discriminatorily Refused to Prosecute Rapist
The opinion was decided July 21, but was originally issued sealed; it was just unsealed today, in response to my motion to unseal.
From Judge William S. Stickman IV's opinion in Doe v. Northern Regional Police Dep't of Allegheny County (W.D. Pa.):
Plaintiff Jane Doe … [sued] to address purported violations of her constitutional rights arising from an incident with a male student, A.M., during the school day at Pine-Richland High School. She contends that due to the "shoddy, unprofessional, and inadequate investigation" undertaken by Defendants, A.M. was never prosecuted….
During the school day of January 7, 2019, Plaintiff, a "Latinx female," who was born in Guatemala and identifies as "Mayan/Native (Central) American," and "is of Hispanic origin," contends that she was "secluded" "in a school restroom where, ignoring her pleas to stop and physical resistance, [A.M.] restrained her, vaginally raped her with his penis, finger and tongue, forced her to perform oral sex, and attempted to anally rape her." She reported the incident to Pine-Richland High School personnel, law enforcement, and medical personnel that day.
{Before her parents arrived, Plaintiff began to provide school officials with a handwritten statement. When her parents arrived, she was directed to stop writing. Therefore, Plaintiff's statement was "unfinished" and "incomplete." According to Plaintiff, it "did not include the multiple additional forced penetration offenses that occurred, the multiple acts of indecent assault and sexual assault that occurred, or [her] attempts to escape." Her statement, which only described two of the five acts of forcible penetration committed against her, was given to Detective Rick by school personnel.} {That evening, Plaintiff gave a statement to medical personnel at the hospital. Three months later, she gave another statement in connection with a Sexual Violence Protection Order she obtained against A.M.} As to her report to law enforcement, Plaintiff gave a videorecorded statement to Detective Rick, a white male, at the Northern Regional Police Department in the presence of her mother.
Voices for Liberty Symposium on Civil Rights and Free Speech, 9/22, Registration Open!
REGISTRATION OPEN: Voices for Liberty Symposium on Civil Rights and Free Speech
FRIDAY, SEPTEMBER 22, 2023 | Antonin Scalia Law School and Virtual
Visit our webpage for details and registration: https://tinyurl.com/3t9d63j8
* * * * * * * * * *
Does free expression help or harm the cause of social progress?
Join senior scholars and exciting new voices presenting cutting-edge research on the role freedom of speech plays in advancing civil rights movements (past, present and future). Academic research into this important topic has been surprisingly limited. Scholars will present new papers exploring whether free expression entrenches an unjust status quo or provides critical support for groups wishing to challenge it.
Don't miss keynote speakers Jonathan Rauch and Nadine Strossen!
Voices for Liberty, an initiative of the Liberty and Law Center at George Mason's Antonin Scalia Law School, aims to broaden debates about freedom of speech through new scholarship, campus speakers, and public events.
Questions? vfli@gmu.edu
Federal Judge: "Public Interest" Requires That Restrictions on "Medical Misinformation" Not Be Enjoined
So a court concludes in a case brought by presidential candidate Robert F. Kennedy, Jr.
In Kennedy v. Google, decided yesterday by Judge Trina Thompson (N.D. Cal.), plaintiff sued Google and YouTube claiming that they violated his First Amendment rights by removing videos in which he speaks about vaccines, and seeking a temporary restraining order:
On March 3, 2023, Kennedy spoke at Saint Anselm College's New Hampshire Institute of Politics. The speech centered around Kennedy's concerns about the merger of corporate and state power as related to the number of vaccines children take. He also spoke about his environmental and legal work fighting corporate polluters. On or about the same day, Manchester Public Television posted a video of the speech and YouTube removed it…. Plaintiff alleges that YouTube [also] removed … [the video] "RFK on Joe Rogan – Pfizer COVID Vaccine Trial." …
The court rejected Kennedy's First Amendment claim against Google, reasoning (correctly and unremarkably, I think) that Google isn't the government and thus isn't bound by the First Amendment, and any government interaction with Google urging it to remove certain speech about vaccines wasn't enough to make Google into a government actor.
But the court then went through the other preliminary injunction factors, and said the following (among other things):
Even if Plaintiff could establish that a Google was a state actor attributing its conduct to that of the governments, the rights guaranteed under the First Amendment are not unencumbered by any restrictions:
[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Chaplinsky v. New Hampshire (1942). "The Ninth Circuit has consistently recognized the significant public interest in upholding First Amendment principles." However, there is also a strong public interest in protecting the community from an international public health crisis such as the COVID-19 pandemic…. The coronavirus still poses a health risk to certain individuals, and it would not serve the public interest to let medical misinformation proliferate on YouTube.
That strikes me as remarkable. It suggests either that
"Big Parma Is Putting Microchips in People"
Spotted online. The BusinessInsider story is real, though it (and the original Wall Street Journal article) notes that the chips are being put into the outside labels that are unlikely to actually be eaten, though apparently they have to be food-safe just in case.
Seventh Circuit Upholds Products Liability Claim Against Specialized Ammunition Manufacturer
From Hakim v. Safariland, Inc., decided Monday in an opinion by Judge John Lee, joined by Chief Judge Diane Sykes and Judge Joel Flaum:
David Hakim, a SWAT officer …, accidentally got shot by a colleague during a training exercise. The offending projectile was a "breaching" shotgun round manufactured by Safariland, LLC. Breaching rounds assist law enforcement officers in breaking down doors by disabling hinges and other attachments on doorframes. When used as intended, they disintegrate harmlessly on impact with a metal attachment mechanism. But here, Hakim's fellow officer missed the metal door hinge he was shooting at. The round struck wood, remained live, and ultimately hit Hakim in the spine. Hakim's thirteen-month recovery from his injury required multiple surgeries, and to this day he experiences pain so severe that he has trouble sleeping….
Hakim [sued, claiming] … that Safariland had failed to provide adequate warning that its rounds do not disintegrate if they strike wood instead of metal. A jury … awarded Hakim $7.5 million on his failure-to-warn claim….
The court upheld the verdict, and rejected Safariland's claims that its warnings were adequate:
Safariland acknowledges that none of its product literature specifically warns that breaching rounds that hit wood do not disintegrate. But it argues that this danger was implied in its literature. For instance, Safariland notes that the documents advise shooting the rounds directly at metal attachment mechanisms, rather than attempting to "shear" those mechanisms off a door, to "minimize the risk of the projectile[s] causing serious injury or death." But other statements in the literature seem to indicate that the rounds will disintegrate on contact with wood. For instance, the literature states that breaching rounds "disintegrate[] into a fine powder" upon contact with a "hard surface." A reasonable consumer certainly could interpret the term "hard surface" to include wood.
Adding to the confusion is Safariland's product catalog. The catalog features the breaching rounds on a page labeled "less lethal" and states that the rounds "[d]isintegrate[] on contact" and are "[s]afe to use at close distances." A reasonable jury could interpret these statements as conveying the false impression that the breaching rounds are not particularly harmful, even when misfired….
This is quite consistent with the Protection of Lawful Commerce in Arms Act, which preempts products liability claims "resulting from the criminal or unlawful misuse of a qualified product by the person or a third party." And the PLCAA also expressly excludes lawsuits stemming from "a defect in design or manufacture of the product," when "the discharge of the product was [not] caused by a volitional act that constituted a criminal offense"; that appears to include failure-to-warn claims, see Adames v. Sheahan (Ill. 2009).
And it's quite consistent with the way other products are treated. Here's an excerpt from Torts and Guns, a Journal of Tort Law article by the late leading tort scholar Stephen Sugarman (Berkeley Law) (paywall-free version here):
Today in Supreme Court History: August 24, 1946
8/24/1946: Justice James McReynolds dies.
Vermeule and Casey Respond to Judge Rao on Textualism's Political Morality
Further debate on textualism, "common good constitutionalism," and the classical legal method.
In March 2022, the Honorable Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit delivered the Sumner Canary Memorial Lecture on "Textualism's Political Morality." The Case Western Reserve Law Review has published her lecture. It is available for download here.
Judge Rao's remarks have provoked a response from Professors Adrian Vermeule and Conor Casey, two prominent proponents of "Common Good Constitutionalism." Their response, "Judge Rao's Unintentional Surrender," has been published in "The New Digest," a "forum for short essays on law, politics, political theology, post liberalism, and the common good."
The full essay requires a subscription, but here is how it begins:
On the March 3, 2022, Judge Rao of the United States Court of Appeals for the District of Columbia Circuit gave the Sumner Canary Memorial Lecture at Case Western Reserve University, which has now been published. Her lecture, entitled Textualism's Political Morality, sets out to "explore the political morality that undergirds and informs a textualist approach to statutory interpretation" and then to contrast textualism favorably against "methods of interpretation that rely on the judge's abstract normative values about justice or fairness or that seek to update statutes in accordance with evolving social or political norms." In her opening remarks, Judge Rao says that her defense of textualism is "especially timely" given critiques advanced by what the judge refers to as a "wave of post-liberal scholars" (mentioning one of us by name) who have suggested that "laws should be interpreted to promote the 'common good.'" Judge Rao's subsequent critique of common good constitutionalism and its classical approach is anchored on the premise that its proponents think "judges should give effect to certain substantive values, values that exist independently of the law" and that "should interpret statutes in light of principles found outside the law" because "such principles will lead to 'better' results than simply following the text" (our emphases).
This is, rather trivially, not at all the classical legal position held by common good constitutionalists; the classical view has always been that background principles of legal justice are themselves internal to law. As Vermeule wrote in his recent book, the principles to which the classical tradition looks "are themselves already part of the law and internal to it." Or, as John Finnis puts it, such principles are ipso iure, meaning that they are themselves part of the law. All this is familiar and uncontested, or ought to be. H.F. Jolowicz explained long ago that for the Roman lawyers, aequitas or equity was not a "contrasting principle" to law, but a mode of interpretation within law.
But in this post, we want to do more than highlight Judge Rao's misunderstandings. If Judge Rao merely misunderstood what the classical view holds, her lecture could neatly join a crowded shelf of off-the-bench efforts at legal theory by originalist judges, which we have discussed elsewhere, and which are also crippled by a question-begging stipulation that the classical legal tradition does something other than law.
What we find more interesting, and which raises her argument to an apparently unintended form of high art, is that she then proceeds to recreate the classical view itself, seemingly without knowing that she is doing so, and under a different label. In so doing, Judge Rao has continued a recent trend, in which textualists have in effect allowed a kind of Augustan settlement of our law. Like the senators and optimates of Rome under Augustus, they have been content with retaining the outward forms and labels of the regime to which they are wedded, while ceding the operative content of the law to rule by other principles.
Maine High Court Finds "Bad Faith" in Denial of Public Records Request, Orders Payment of Requesters' Fees
From yesterday's decision in Human Rights Defense Center v. Maine County Comm'rs Ass'n Self-Funded Risk Management Pool (opinion by Justice Horton), interpreting the Maine Freedom of Access Act (FOAA), Maine's analog to the federal FOIA and other states' public records laws:
This case presents the first occasion for us to consider what constitutes "bad faith" for purposes of FOAA's fee-shifting provision. Because the Risk Pool never denied or explicitly refused to comply with HRDC's request, we must consider the circumstances under which a public entity's failure to comply with a FOAA request rises to the level of a bad-faith refusal to comply. Here, the Risk Pool's failure to produce any of its records in response to HRDC's FOAA request, despite HRDC's repeated efforts to clarify what should already have been clear, can only be viewed as, in the court's words, "deceptive and abusive of the FOAA process." We agree with the court that the Risk Pool's response constituted a bad-faith refusal and we affirm the judgment….
HRDC is a non-profit organization that collects information from law enforcement and corrections agencies and other public entities in furtherance of its mission to advocate for change in the criminal justice system. The Risk Pool is an unincorporated, public, self-funded pool that provides risk management services to Maine counties under a contract with the Maine County Commissioners Association. Malcolm Ulmer, the Risk Pool's director of operations, maintains a claim file on each claim handled by the Risk Pool.
At some point before June 18, 2021, HRDC became aware, through a Portland Press Herald article, of the settlement of a federal lawsuit against Kennebec County alleging maltreatment of a prisoner at the Kennebec County Jail. The article indicated that the action was settled by the County's payment of $30,000 to the plaintiff. HRDC submitted a FOAA request to Kennebec County for documents showing payments related to the action and settlement. The County's attorney responded by sending HRDC copies of pleadings filed in the matter and a copy of a settlement agreement. However, the settlement agreement indicated only that the settlement was in consideration of "One Dollar and Other Good and Valuable Consideration" and did not mention the $30,000 payment cited in the article. [Further details omitted. -EV]
[B]ad faith … can consist of dishonest conduct, but it can also include intentional acts or omissions that thwart the legal process and cause harm to other parties to the action…. An agency's failure to respond does not in itself establish bad faith. On the other hand, proof that an agency has acted in the opposite manner to facilitating access to its public records—by responding to a request dishonestly, for example, or by deliberately and affirmatively impeding or thwarting valid requests for access—may be sufficient to prove bad faith.
Here, HRDC's June 18, 2021, FOAA request was quite specific:
Why We Should Care About Pseudonymity in Litigation
Like other features of legal procedure—such as the jury trial, the mechanism for appointing judges, the availability of appeal—pseudonymity both deeply affects the fairness of litigation and, often, the substantive outcomes.
A commenter asks, perfectly fairly:
I started reading Volokh a year or so ago. None of these seemingly dozens of pseudonymity posts have seemed interesting enough to read, including this one. IANAL. Is pseudonymity actually a serious legal issue or just a weird obsession of Volokh's?
Well, yes, it is an obsession of mine; I wrote a 100+-page article on the subject, and am planning to put together an electronic treatise on the Law of Sealing and Pseudonymity in Litigation. And one reason I'm doing that is precisely that academics and others generally haven't focused much on the subject, so I suppose it is indeed a "weird" obsession.
But I think everyone should focus on it! (The hallmark belief of a weird obsession, to be sure.) Like other features of legal procedure—such as the jury trial, the mechanism for appointing judges, the availability of appeal—pseudonymity both deeply affects the fairness of litigation and, often, the substantive outcomes. Pseudonymity isn't just a matter of civil procedure; it should also matter to people who care about privacy, free speech, public supervision of courts, and more.
Here's my pitch, adapted from the Introduction to my article:
One defining question about any system of procedure is: Public or secret? American juvenile justice is secret. Criminal justice, generally public. Bar discipline, mostly secret in many states. Internal employer and university disciplinary proceedings, generally secret. Arbitration, generally secret. Civil justice, public.
The answer to the public-or-secret question of course affects the level of public supervision of the system, as well as the likely public confidence in the system. But the answer can also sharply affect the shape of litigation within the system:
- the incentives to bring or not bring various kinds of cases,
- the incentives to settle (or plea bargain),
- the likely settlement values,
- which witnesses testify,
- and more.
Indeed, the implicit threat of publicity is common in many prefiling negotiations, though it may need to be kept implicit to avoid negotiations being treated as criminal extortion.
The follow-up question, of course, is: When a system is generally public, what provisions still allow some degree of secrecy? In particular, within our civil justice system, how do courts decide what can or must be sealed or redacted, and when parties can proceed pseudonymously? This too can sharply affect what cases get filed, what cases get dropped, and on what terms cases settle.
Today in Supreme Court History: August 23, 2007
8/23/2007: John Yates, aboard the Miss Katie boat, threw fish overboard to avoid an inspection. He was prosecuted for destroying property to prevent a federal seizure. In Yates v. United States (2015), the Supreme Court held that the fish was not a "record."
Lawsuit Over Alec Baldwin's Publicly Labeling Woman "Insurrectionist" for Her Jan. 6 Activities Dismissed by Court
Plaintiffs sued for defamation, and also for negligence and intentional infliction of emotional distress stemming from the comments aroused by Baldwin's posts.
From McCollum v. Baldwin, decided today by Judge Edgardo Ramos (S.D.N.Y.):
Jiennah McCollum is the widow of Marine Lance Corporal Rylee J. McCollum, who was killed in an attack by a suicide bomber on August 26, 2021, in Kabul, Afghanistan. One month after Rylee died in Kabul, Jiennah gave birth to their daughter. Rylee is also survived by his father, Jim, and two sisters, Roice and Cheyenne. Roice appeared on the Fox News program "The Story with Martha MacCallum" in early 2022 to discuss Rylee's death….
Baldwin has 2.4 million followers on Instagram, where he has been socially and politically active for years. After Rylee's death, a GoFundMe account started fundraising for Jiennah and her soon-to-be-born daughter. Baldwin donated $5,000 to Jiennah in support of the soldier's family.
On January 6, 2021, Roice went to Washington, D.C. to participate in the demonstration to protest the election of President Joe Biden, which later escalated into a riot in the Capitol Building. However, she did not take part in the riot: she neither entered the Capitol Building nor engaged in any confrontation with police officers or government officials. Roice was later interviewed by the FBI about the demonstration and was cleared of any wrongdoing. Jiennah and Cheyenne were not present in Washington, D.C. on January 6, 2021.
On January 3, 2022, Baldwin saw a photo of a crowd of demonstrators at the Washington Monument posted by Roice on her Instagram page in anticipation of the one-year anniversary of her attendance at the Washington, D.C. demonstration.
Baldwin then commented on Roice's post "Are you the same woman that I sent the $ to for your sister's husband who was killed during the Afghanistan exit?" Upon confirmation from Roice that she was the sister of Rylee and the sister-in-law of Jiennah, Baldwin engaged in an exchange of private messages with Roice on Instagram. The final private messages between Baldwin and Roice state as follows:
Can Plaintiffs Alleging Rape Sue Pseudonymously?
The question remains unsettled, with lots of courts decisions on both sides.
From today's decision by Judge Roy Walton in Doe v. Wyndham Vacation Ownership, Inc.:
In this employment discrimination case, Plaintiff sues her former employer after she was allegedly raped by one co-worker and sexually harassed and assaulted by another…. Federal Rule of Civil Procedure 10(a) requires that "every pleading" in federal court "must name all the parties." But a narrow exception exists when a party can establish "a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." …
Plaintiff argues for the use a pseudonym because the sexual assault allegations concern information of the utmost intimacy and revealing her name will subject her to substantial social stigma. In cases involving sexual assault, personal embarrassment alone does not justify use of a pseudonym. See Doe v. Sheely (11th Cir. 2019) ("This Court has said that 'personal embarrassment' alone is not enough for leave to proceed anonymously."); see also Plaintiff B v. Francis (11th Cir. 2011) ("courts have often denied the protection of anonymity where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to suffer some personal embarrassment"). And while social stigma can overcome the presumption of openness in court proceedings, Plaintiff must establish that concerns of social stigma are well-founded and particularized. See E.K v. Walt Disney Parks & Resorts U.S., Inc. (M.D. Fla. 2022); Doe v. Neverson (11th Cir. 2020) (differentiating general allegations of potential personal embarrassment from the situation there where plaintiff made specific allegations of being from a "devout Muslim family" who would experience shame and harm to her family and reputation and submitted examples of specific harassing and threatening comments posted online). Plaintiff's conclusory allegations that "this matter is likely to be highly contentious" and that "potential customers and employers will simply google her name and discover" this case are speculative and insufficient to overcome the presumption of openness in judicial proceedings.
Who Can Sue OpenAI in Federal Court, Under State Law Claims (Such as Libel)?
Civil cases arising under federal law are generally filed in federal court: copyright cases, federal employment discrimination cases, cases against government agencies alleging violations of the U.S. Constitution, and more. But civil cases arising under state law can also be filed in federal court, if they involve more than $75K and the parties are all citizens of different states (known as "complete diversity of citizenship"). And if a plaintiff files such a case in state court, the defendant can remove the case to federal court, again if both the $75K requirement and the diversity requirement are satisfied. (This is of course an oversimplification.)
Now what happens if one of the parties is a business organization? Corporations are generally viewed as citizens of (1) the state in which they were incorporated, and (2) the state in which they have their principal place of business. But LLC's (limited liability companies) are viewed as citizens of all the states in which their members are citizens. That makes the complete diversity requirement harder to satisfy.
It also makes it important to know where an LLC's members—i.e., co-owners—are citizens. And if the members are LLC's, it's important to know the citizenship of their members. The result is pretty complicated.
But thanks to a filing yesterday in Walters v. OpenAI, one of the libel lawsuits stemming from libel by AI program, we know the current answer as to OpenAI:
OpenAI, L.L.C. is a citizen of Alaska, Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Florida, Illinois, Massachusetts, Maryland, Michigan, North Dakota, New Jersey, Nevada, New York, Oregon, Pennsylvania, Texas, Virginia, and Washington, and of other countries.
