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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The Satanic Temple Sues Newsweek for Libel
Check out the Complaint, filed today, and the article over which the lawsuit is brought, "Orgies, Harassment, Fraud: Satanic Temple Rocked by Accusations, Lawsuit."
Let's Go Brandon, Fly Your Anti-Biden Flag
Kokomo officials agree not to enforce ordinance banning “obscene, indecent, or immoral” signs against flag that says “Fuck Biden and fuck you for voting for him.”
From the Order Approving Consent Judgment and Granting Stipulation of Dismissal in Adams v. Miller, signed yesterday by Judge James Patrick Hanlon (S.D. Ind.):
This case involves Brandon Adams's First Amendment challenge to the enforcement of a City of Kokomo ordinance regulating the content of signs. City officials sent Mr. Adams notices ordering him to take down a flag displayed on his property, but Mr. Adams refused to do so. Mr. Adams then filed a motion for preliminary injunctive relief. Before the Court ruled on that motion, the parties reached an agreement to maintain the status quo and then to agreed terms of dismissal of the case. In this order, the Court approves the parties' stipulated dismissal of the case….
Plaintiff Brandon Adams alleged that Mark Miller, Greg Sheline, Tyler O. Moore, Bob Cameron, and the City of Kokomo ("Defendants") violated his right to freedom of speech under the First Amendment to the United States Constitution. Specifically, Mr. Adams alleged that after he hung a flag containing a political message from the side of his home, Defendants ordered him to take it down. As legal authority supporting the demand, Defendants cited a city ordinance that prohibits "signs which contain statements, words, or pictures of an obscene, indecent, or immoral character."
The parties agreed to maintain the status quo, and later filed a Stipulation of Agreed Entry stating that "[t]he City of Kokomo will take no further action against Mr. Adams relating to the flag on his property that says, 'Fuck Biden and fuck you for voting for him.'" The Agreed Entry further states:
"Let Me Kidnap Your Daughter and See If You Don't Get Angry" = Punishable Threat Against Judge
From People v. Brown, decided today by the Colorado Court of Appeals, in an opinion by Judge James Casebolt, joined by Judge David Furman (over a dissent by Judge Lino Lipinsky):
When does a statement by an irate and angry respondent parent in a dependency and neglect (D&N) case rise to the level of a "credible threat" that may be punished under section 18-8-615, [Colo. Rev. Stat.] 2021, which proscribes retaliation against a judge?
In this case, Adrian Jeremiah Brown appeals the judgment of conviction entered on a jury verdict finding him guilty of violating that provision when, after being told by the D&N judge that he must undergo a domestic violence evaluation or anger management therapy, he stated, "Let me kidnap your daughter and see if you don't get angry. As a matter of fact, where do you live, Your Honor? Let's see if we can get this all resolved. See if you would be angry."
We conclude that this statement, when coupled with other circumstances detailed below, was not constitutionally protected and constitutes a "true threat" under the recent Colorado Supreme Court case of People in Interest of R.D., 2020 CO 44. We thus affirm Brown's conviction….
The opinions are long and detailed, and can be read here.
David Cole (of the ACLU and Georgetown Law) on the Ilya Shapiro Matter
David Cole, longtime Georgetown law professor who's now the National Legal Director of the ACLU, writes in the New York Review:
Shapiro's message was offensive, but if academic freedom is to mean anything, [Shapiro's] two tweets can't be a firing offense. And without academic freedom, the voices suppressed are as likely to be those of critical race theorists as opponents of affirmative action.
The concept of academic freedom was initially advanced in the United States by universities and professors as a defense against political intrusions aimed at perceived anarchists, Communists, and other critics of the status quo. Universities argued that because a robust exchange of ideas and free inquiry are essential to the academic enterprise, state officials must respect the independent judgments of universities and the free speech rights of their employees. The Supreme Court's academic freedom cases have all involved government efforts to banish Communists from campus….
If universities do not respect this principle [of academic freedom] within their own institutions, how will they resist the political encroachments of outsiders? …
N.Y. Times' Nick Kristof Can't Run for Oregon Governor
So the Oregon Supreme Court held today, ruling that Kristof doesn't satisfy the state constitution's requirement that a candidate "have been three years next preceding his election, a resident within this State."
From today's decision in State ex rel. Kristof v. Fagan:
Relator [Kristof] is a prospective candidate for governor. After he filed his declaration of candidacy with the Secretary of State, the secretary asked relator for additional information to substantiate that he will "have been three years next preceding his election, a resident within this State," as required to serve as governor by Article V, section 2, of the Oregon Constitution.
Relator submitted additional materials in support of his claim that he meets the constitutional eligibility requirement. Upon reviewing those materials, the secretary determined that, although relator had previously been a resident of Oregon, he had been a resident of New York since at least 2000 and he had not reestablished Oregon residency by November 2019. The secretary therefore concluded that relator did not meet the constitutional requirement….
In communicating its decision to relator, the Elections Division correctly emphasized that "it is not the Elections Division's role to determine whether any candidate is sufficiently 'Oregonian'" or "to examine the depth or sincerity of a candidate's emotional connection to Oregon." That is not this court's role either. It is undisputed that relator has deep roots in Oregon and has consistently spent time here over many years.
This case, however, requires us to decide two legal questions: (1) the meaning of "resident within this State," as those words are used in Article V, section 2, of the Oregon Constitution; and (2) whether the secretary was required to conclude that relator met that legal standard.
WaPo Removes Claim That Justice Thomas's "Rulings Often Resemble the Thinking of White Conservatives."
"A previous version of this story imprecisely referred to Justice Clarence Thomas’s opinions as often reflecting the thinking of White conservatives, rather than conservatives broadly. That reference has been removed."
Yesterday, two reporters of the Washington Post actually wrote that Justice Thomas is a "Black justice whose rulings often resemble the thinking of White conservatives." No this barb did not appear in the opinion section. It appeared in the news section.
Today, the Post noted a retraction. Or is it a "clarification"? After #MaskGate I have no idea how journalism works anymore.
CLARIFICATION
A previous version of this story imprecisely referred to Justice Clarence Thomas's opinions as often reflecting the thinking of White conservatives, rather than conservatives broadly. That reference has been removed.
Now, the passage reads:
Rep. Bennie G. Thompson (D-Miss.), a friend and ally of Clyburn's for over 30 years, said even Clyburn's critics respect his political instincts and his connection with a valuable but often disappointed subset of Democratic voters.
"Nobody that I'm aware of feels that opposing Clyburn's nomination would be the wise thing to do," he said. "If you know that a person has been vetted by Jim Clyburn, you know that person won't go to the court and end up being a Clarence Thomas," referring to the Black conservative justice.
I appreciate the "clarification," but this story is still problematic. Why is it relevant to this story that Thomas is Black? The reason why is that Thompson called Thomas an Oreo. The initial version of the story dutifully reported that statement as fact. Now, the Post merely alludes to the implication. This sort of casual racism against conservatives is embedded so deeply in progressive culture. WaPo reporters and editors simply treat these barbs as fact.
For posterity, the original is preserved here:
https://twitter.com/fedjudges/status/1494129276710375424
Knives Out For Judge Childs From #TeamKruger
I, for one, am enjoying this circular stabbing squad.
David Lat's Original Jurisdiction Substack is a vital resource to understand the Supreme Court vacancy. When I read David's columns, I try to gather whose perspectives he is filtering. Today's newsletter comes from #TeamKruger--literally. Apparently the Kruger network (likely Justice Stevens clerks, former DOJ employees, and academics) is unhappy that Childs and Jackson are getting too much oxygen. So they sent David missives that he converted into a collective "open letter." Apparently, Justice Kruger "would be mortified if she knew" her team lobbied for her. But they lobbied anyway. (Update: In an earlier version of this post, I wrote that #TeamKruger actually wrote the letter. I now realize David assembled different perspectives to form the letter).
First, #TeamKruger criticized Judge Childs's "small army of operatives, politicians, and pundits pushing for her." And, they write, Biden "should not choose a justice based on political favor-trading or political fallout." You hear that Rep. Clyburn?
Second, #TeamKruger suggests that Biden cannot reliably count on Child's vote. Rather, Biden would pick Childs because of "such niceties as a compelling personal story." (And what really happened to her father!?) Plus Childs is a black woman who may exhibit conservativism! (The Washington Post could not be reached for comment):
If this were a 6-3 Court in the other direction, i.e., in favor of liberals, Judge Childs might be a great pick. With that kind of dominance, you'd have the luxury of picking someone based on such niceties as a compelling personal story and a non-Ivy educational background, and things like her lack of appellate experience, her being a decade older, and her conservatism in employment law and criminal law wouldn't matter that much. You could lose her vote in the occasional case and still prevail.
Burn.
Third, #TeamKruger says that Childs, as well as Jackson, would have to "learn on the job." (Elena Kagan could not be reached for comment).
Judge Jackson, who has been an appellate judge for less than a year, and Judge Childs, who has never been an appellate judge, haven't had the opportunity to develop these skills in the same way. And the Supreme Court—at least for a liberal justice at this critical point in our nation's history, with abortion, gun control, and affirmative action on the line—is no place for learning on the job.
Ouch.
I, for one, am enjoying this circular stabbing squad. And it will get uglier.
Police Officer Can't Litigate Libel Lawsuit Pseudonymously
From today's Ohio Supreme Court decision in State ex rel. Cincinnati Enquirer & Volokh v. Shanahan (written by Justice Stewart); congratulations to my excellent pro bono lawyer Jeffrey M. Nye on the victory:
In July 2020, a Cincinnati police officer using the pseudonym "M.R." filed a complaint for injunctive relief in the Hamilton County Court of Common Pleas alleging that several people, whom he named as defendants, had publicly made the false claim that he is a white supremacist. Along with his complaint, M.R. filed a motion for a temporary restraining order and an affidavit in support of the motion. Respondent, Judge Megan E. Shanahan, allowed M.R. to proceed in the lawsuit using the pseudonym and partially sealed M.R.'s affidavit at his request…. The order stated:
The plaintiff, a police officer, is involved in the apprehension of very violent and dangerous criminals. The officer's job duties expose the officer to physical harm. To require that a document with identifying information be available to the public would further risk injury to the officer and others. In the current climate, with the uptick in violent acts being perpetrated against law enforcement both on-duty and off, active and retired, the Court finds there is a real and serious threat of physical harm. In the present case, one defendant has threatened, in writing, to publish the officer's personal identifying information and other information for the purpose of "doxing" the officer. The Court finds this to be a real and present threat.
Although Judge Shanahan did not expressly identify the evidence supporting her finding that M.R. had been threatened, she likely was referring to a social-media post that was attached as an exhibit to M.R.'s affidavit. The author of that post stated that he was thinking about publicizing M.R.'s name, address, and phone numbers but expressed concern about the legality of doing so. After exchanging messages with others, the poster ultimately stated that he would keep the information to himself, "[f]or now."
Judge Shanahan's second sealing order continued to allow M.R. to proceed pseudonymously but it modified the original order by making parts of M.R.'s affidavit available to the public. The partially redacted affidavit omitted all references to M.R.'s name and to the fact that M.R. has a wife and children. The exhibits to the affidavit remained sealed….
The court began by holding that the sealing of the affidavit was improper:
Today in Supreme Court History: February 17, 1801
2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.
WaPo Describes Justice Thomas: "the Black justice whose rulings often resemble the thinking of White conservatives."
Discourse about race is upside down and backwards.
Representative Jim Clyburn of South Carolina is pushing Judge J. Michelle Childs for the Supreme Court. Yet, some progressives are worried that she may be too moderate. The Washington Post wrote a lengthy article about Clyburn, and his influence on President Biden. The article contends that Childs is not moderate, but will make progressives happy. The Post quotes Rep. Bennie Thompson (the chair of the January 6 Commission) to assuage concerns about Childs on the left:
Rep. Bennie G. Thompson (D-Miss.), a friend and ally of Clyburn's for over 30 years, said even Clyburn's critics respect his political instincts and his connection with a valuable but often disappointed subset of Democratic voters.
"Nobody that I'm aware of feels that opposing Clyburn's nomination would be the wise thing to do," he said. "If you know that a person has been vetted by Jim Clyburn, you know that person won't go to the court and end up being a Clarence Thomas," referring to the Black justice whose rulings often resemble the thinking of White conservatives.
The Washington Post wrote the emphasized portion. You know, Justice Thomas, the black justice who thinks like a white person. The Washington Post called Justice Thomas an Oreo. And that statement isn't even accurate! The Court's white conservatives issue rulings that often resemble those of Justice Thomas. Thomas is the intellectual leader of the Court's conservative wing. And he has been for decades. Gorsuch, Alito, and the rest are just trying to keep up with CT. But once again, we get the racist trope that Thomas is Scalia's clone. Just the opposite. Scalia often remarked that Thomas pushed him to the right. What lazy writing from the Post.
Discourse about race is upside and backwards. Racially-tinted sentiments about progressives are grounds for immediate cancellation. Racially-charged attacks about conservatives are offered as objective facts in a newspaper of record.
This article brings to mind an exchange between Justice Thomas and then-Senator Biden more than three decades ago.
And from my standpoint as a black American, as far as I'm concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. -- U.S. Senate, rather than hung from a tree.
Justice Thomas still deigns to think for himself, and refuses to kowtow to the old order run by Thompson and Clyburn. And for that reason, he continues to be destroyed by the left, without even the slightest hesitation.
Oh, and by the way, in 2005 then-Senator Biden threatened to filibuster then-Justice Janice Rogers Brown, who credibly could have (and should have) become the first black woman on the Supreme Court.
Finally, the knives are out for Judge Childs. Consider this charge in Nina Totenberg's report:
Born in Detroit in 1966, she was 13 when her mother, a Michigan Bell telephone manager, moved the family to South Carolina. By then her mother and father had been divorced for some time. But within months of the move, the judge recalled in a 2018 speech, "I received a phone call that my father, a police officer, had died in Detroit from gunshot wounds. Of course, I was devastated."
Beyond that, little is publicly known about her father's death in 1980, except that the Associated Press reported at the time that that he "died of a self-inflicted gunshot wound to the chest." Although Rep. James Clyburn, who has been aggressively lobbying for Childs' nomination, has said her father died "in the line of duty," Ralph Childs is not on the Michigan state list of "fallen officers" in 1980.
Totenberg "in some form or another suggested" that the story about Judge Childs's father's death may not be entirely accurate. Are we really going there? Critiquing Childs for not accurately characterizing the death of her father? Has anyone checked out Judge Childs's high school yearbook? She was valedictorian after all. Who knows what she wrote!? If only Michael Avenatti was free to help out. Maybe the prison library has some resources.
This process will get even uglier, very quickly.
Cybertoonz returns
Exploring new frontiers in content moderation for tech-enabled speech
Preliminary Injunction Bars Forced Retirement Based on Air Force Officer's Religious Refusal of Vaccination
"Although the Air Force claims to provide a religious accommodation process, it proved to be nothing more than a quixotic quest for Plaintiff because it was 'by all accounts, ... theater.'"
From Air Force Officer v. Austin, decided yesterday by Judge Tilman Self III (M.D. Ga.):
"Your religious beliefs are sincere, it's just not compatible with military service." That's about as blunt as it gets.
{This is how Plaintiff's chain of command paraphrased why he thought she was denied a religious exemption from a COVID-19 vaccine. True, he undoubtedly spoke for himself, but when considering the Air Force's abysmal record regarding religious accommodations requests, it turns out he was dead on target.}
Relying on the protections of the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act, Plaintiff, a United States Air Force officer, seeks a preliminary injunction to protect her from our military's mandatory COVID-19 vaccination requirement. Although the Air Force claims to provide a religious accommodation process, it proved to be nothing more than a quixotic quest for Plaintiff because it was "by all accounts, … theater." U.S. Navy SEALs 1–26 v. Biden (N.D. Tex. Jan 3, 2022) (O'Connor, J., describing the Navy's religious accommodation process). Despite thousands of requests for religious exemption, the Air Force hadn't granted a single one of them when Plaintiff filed her Complaint. Why? Because until about two weeks ago, apparently no religious exemption from a COVID-19 vaccine was "compatible with military service."
Walter Dellinger, RIP
Dellinger was a famed constitutional law scholar at Duke University, and also held important positions in government during the Clinton Administration.
Duke University law Professor Walter Dellinger passed away this morning, at the age of 80. He was both an outstanding constitutional law scholar, and held important positions in government during the Clinton Administration, including as head of the Office of Legal Counsel (OLC), and as acting solicitor general of the United States. He argued numerous cases before the US Supreme Court.
I knew Walter for many years, and participated in several panels and conferences with him, such as this one on the Obamacare individual mandate litigation in 2011, sponsored by the American Constitution Society. We differed over numerous issues, but he was a big supporter of my work, nonetheless (as was also true for other younger academics). Walter epitomized what it means to be both a gentleman and a scholar. He will be greatly missed.
My condolences to those of Walter's family, colleagues, and friends, who may read this post.
The Raleigh News and Observer has an obituary that details some of Walter's many accomplishments:
Walter Dellinger, a prominent Duke law professor who served in some of the nation's highest legal positions during a storied career, has died. Dellinger died Wednesday morning in Chapel Hill, The Associated Press reported. He was 80 years old…..
Dellinger, a Charlotte native, was born May 15, 1941, according to his Duke Law profile. He studied political science at the University of North Carolina and graduated with honors in 1963. Dellinger went on to study at Yale Law School, where he graduated in 1966. Over his career, Dellinger served in various legal positions at the highest levels of federal government. Former President Bill Clinton nominated Dellinger to serve as assistant attorney general and head of the Office of Legal Counsel, and in 1993 he was confirmed by the U.S. Senate. For three years, Dellinger provided legal guidance to the attorney general and the president….
In a statement over email, James Boyle, a professor at Duke Law, said Dellinger was "a brilliant lawyer, an idealist, and a hilarious, gifted storyteller." "All three qualities were intimately connected," he said. "Walter dreamed of a better world and his deep insight into American law and history were then coupled with the storyteller's art in the service of making that dream a reality."
For some other notable obituaries, see here, here, and here.
Emerson College "[D]erecogniz[es] TPUSA Chapter After Publicly Denouncing Its 'China Kinda Sus' Stickers"
The Foundation for Individual Rights in Education (Graham Piro) reports:
The controversy arose after the group distributed stickers reading "China Kinda Sus" on campus—stickers that the administration, after initially suspending the group, later conceded were intended to criticize China's government, not its people. Not that it would matter, as either criticism would still be protected under Emerson's firm promises to protect freedom of expression, which make no exception for speech others view as hateful. But the group's intent didn't stop the administration from jumping to publicly denounce TPUSA in September for "anti-Asian bigotry and hate," nor did it stop the administration from then placing a "Formal Warning" on the group's record, asserting that it had to do so because of the "pervasive environment of anti-Asian discrimination"—by other people.
It'd be a real shame if all of these public condemnations had an impact on the reputation of the group, thus chilling faculty or staff from being willing to work with them, huh?
Unsurprisingly, that is just what happened. Emerson has now removed the group's recognition as an official student organization, purportedly because the group cannot find a full-time faculty member to serve as an advisor after their previous advisor stepped away in the wake of the stickers controversy. This derecognition comes despite the group reaching out to more than 50 full-time faculty members and getting no interest in advising it. Multiple part-time faculty members have expressed interest—but they are not eligible to be advisors under Emerson's policies.
Palin v. NYT Jurors "Learned of the Court's" Decision Against Palin Before Rendering Verdict
"The jurors repeatedly assured the Court's law clerk that these notifications had not affected them in any way or played any role whatever in their deliberations."
From Judge Rakoff (S.D.N.Y.) today in Palin v. New York Times:
It is the Court's uniform practice after a verdict has been rendered in a jury trial to have the Court's law clerk inquire of the jury as to whether there were any problems understanding the Court's instructions of law, so that improvements can be made in future cases. Late yesterday, in the course of such an inquiry in this case—in which the jury confirmed that they had fully understood the instructions and had no suggestions regarding jury instructions for future cases—several jurors volunteered to the law clerk that, prior to the rendering of the jury verdict in this case, they had learned of the fact of this Court's Rule 50 determination on Monday to dismiss the case on legal grounds.
These jurors reported that although they had been assiduously adhering to the Court's instruction to avoid media coverage of the trial, they had involuntarily received "push notifications" on their smartphones that contained the bottom-line of the ruling. The jurors repeatedly assured the Court's law clerk that these notifications had not affected them in any way or played any role whatever in their deliberations.
The Court also notes that when it proposed to the parties, during oral argument on Monday morning, to render its Rule 50 decision later that day but to permit the jury to continue deliberating so that the Court of Appeals would have the benefit of both the Court's legal determination and the jury's verdict, no party objected to this plan. Nor did any party object when the Court reconvened later that day, outside the presence of the jury, and the Court indicated that it was prepared to issue a Rule 50 decision at that time. Indeed, no party objected to this procedure at any time whatever.
Nevertheless, in an excess of caution, the Court hereby brings the foregoing facts to the parties' attention. If any party feels there is any relief they seek based on the above, counsel should promptly initiate a joint phone conference with the Court to discuss whether any further proceedings are appropriate.
United Nation of Islam Lawsuit Against Ex-Member Dismissed as Seeking Lifelong "Indentured Servitude"
From Woods v. Ross, decided Monday by Judge Daniel Crabtree (D. Kan.):
Pro se plaintiffs Ephraim Woods, Jr., Fatimah Muhammad, Dwight Johnson, and Raasikh Robertson are individual members of a community once known as the United Nation of Islam (UNOI). Plaintiffs each filed a lawsuit against former UNOI members Kendra Ross and her mother, Cheryl Ross, in the District Court of Wyandotte County, Kansas. They alleged claims for (1) breach of contract, and (2) defamation. After removing the cases to federal court, Kendra moved to dismiss the claims against her. The court granted those motions and dismissed her from each case. But because Cheryl didn't appear in any of those actions and didn't sign any filings made in them, the court took no action on plaintiffs' claims against Cheryl.
Cheryl still hasn't appeared in these cases. So, the Clerk of our Court has entered default against her. Now before the court are plaintiffs' Motions for Default Judgment against Cheryl Ross in each of their respective cases. Plaintiffs also have filed Motions for a Hearing.
Even though Cheryl is in default, plaintiffs aren't entitled to a default judgment. That's because each one of the Complaints fails to state a claim against her. So, the court denies plaintiffs' Motions for Default Judgment and their related Motions for a Hearing. And, because no amendment could salvage plaintiffs' claims against Cheryl, the court dismisses these cases with prejudice….
These cases are a spin-off of an earlier case in this court, Ross v. Jenkins, No. 17-2547 (D. Kan.). In that case, Kendra Ross filed a lawsuit against Royall Jenkins and several corporate successors in interest to The United Nation of Islam, Inc. She alleged several violations of state and federal human trafficking laws and labor laws. Defendants failed to appear in that case. The court then held a hearing where Kendra adduced evidence of her claims and damages. After concluding that Kendra's evidence sufficed to establish her claims, the court granted Kendra default judgment and awarded her nearly $8 million in damages.
Some History of Insults of Lawyers, and Whether They Are Libelous
"He hath no more law than [a monkey/bull/goose]" vs. slight mischaracterization of legal advice.
From an opinion issued last year by Virginia Circuit Court Judge Everett Martin in Ashby v. Rowe (Va. Cir. Ct.), but just posted on Westlaw in the last couple of days:
There is, after all, a third certainty in life: acrimony among public officials in Portsmouth will find its way into the press. Of late, it also finds its way across the Elizabeth River into this Court.
This case involves four former officials of the City of Portsmouth. The plaintiff is the former City Attorney; the defendant, the former Mayor. The plaintiff pleads the former chief of police took some action that displeased the former city manager. The city manager then placed the chief of police on administrative leave. This caused some citizens to call for the City Council to fire the city manager.
In response to this call, the plaintiff gave legal advice to the City Council concerning the possible dismissal of the city manager. After receiving his advice, the City Council voted 4-3 to sack the plaintiff. The defendant gave an interview to the press after the plaintiffs discharge.
The plaintiff further pleads that in this interview the defendant said a majority of the City Council had "lost confidence" in the plaintiff; that communication was a problem; that the plaintiff gave unbalanced advice. The defendant continued: "That [advice] was the straw that broke the camel's back. I have never seen an opinion like that before. It just did not make any sense and it doesn't make any sense now…. It's what we thought was not very balanced and good advice, and that shakes your confidence." The plaintiff does not claim any of this was defamatory. He bases his claim on this statement: "Culminating in an opinion that you can't fire the city manager, that the city manager is bulletproof, and that just does not hold up." The plaintiff alleges this statement is false and defamatory.
The plaintiff does not contend the defendant's use of the word "bulletproof" was to be taken literally, but, rather, that the defendant was doubling down on his false statement that the plaintiff had advised the City Council that "You can't fire the city manager…."
