The Attorney General of West Virginia has used the State's power to compel two citizen organizations to open ten years of their files: their drafts and internal arguments, the groups they have funded, the people who serve on their boards, the coalitions they have joined, and what they have told the agencies they petition. Neither organization markets goods nor services relevant to the subpoenas. The Attorney General identifies no consumer who was cheated, no sale, and no purchase made in reliance on anything either group said.

What these organizations do is argue in public about what coal, oil, and gas do to West Virginia's waters and climate. The State's chief legal officer, who has publicly condemned that advocacy, now demands to know how they reached their views and who stood with them.

The First Amendment forbids a State from using its investigative power that way, and I will not allow it while this case is pending.

The country was founded on the premise that a citizen owes the government no account of his opinions or of the people he holds them with. The Attorney General has demanded that two citizen organizations hand the State their working lives.

The State wants a decade of what they published, down to a note sent to a single person outside the organization, along with the unreleased drafts and the internal arguments over what to say. He demanded the names of the organizations that fund them and what each gave, and he has now withdrawn that demand. He still wants the groups they paid, the board members they share, the coalitions they joined, and the comments they filed with the agencies they were petitioning. Because the demand period runs to the date of compliance, the subpoenas reach new communications written while they remain outstanding. No demand identifies a consumer, a sale, or a statement anyone relied on. The subpoenas go into how these citizens arrived at their positions on public questions and who helped them get there.

The Plaintiffs in this case, West Virginia Rivers Coalition, Inc. ("WVRC") and 350.org, promote clean waters, reduced carbon emissions, and healthier lives for the people of West Virginia and beyond. They do not sell any service. They do not advertise a certain product of their own. Instead, they promote ideas. Some of that advocacy and some of those ideas are based, in part, on one model. For that, they have been subpoenaed and asked to turn over ten years' worth of information far beyond any use of that one model.

AG McCuskey's actions violate the protections afforded by the United States Constitution. The Plaintiffs, on this record, have only engaged in protected advocacy speech, not commercial speech. The subpoenas issued on the Plaintiffs trespass on their freedom of association, chill their exercise of the First Amendment, and deter others from engaging in similar conduct.

Because Plaintiffs are likely to succeed on the merits of their claim that the subpoenas violate their First Amendment freedom of association, and because the remaining injunction factors also favor Plaintiffs, their Motion for a Temporary Restraining Order, is GRANTED.

Attorney General McCuskey is enjoined from enforcing these investigative subpoenas for the next fourteen days as set out in the Conclusion of this Memorandum Opinion and Order….

A bit more on the plaintiffs:

Plaintiff WVRC is a river advocacy nonprofit corporation organized under the laws of West Virginia, and its "mission is to promote clean and healthy West Virginia waters for all." The nonprofit is committed to "clean water and healthy rivers through research, public education, policy advocacy, citizen water-quality monitoring, and engagement with state and federal agencies." It has a modest staff of 15 and an annual budget of approximately $2 million primarily funded by foundations and other organizations. WVRC regularly submits comments on proposed legislation, permits, and rules concerning water quality. And as this court is familiar, WVRC is a party litigant in multiple cases across the Fourth Circuit that challenge permits and approvals for infrastructure projects, pipeline projects, injection wells, and toxic discharges. Because of its litigation efforts, WVRC coordinates "with other organizations through shared counsel" about litigation strategy.

WVRC also engages in public education and information campaigns, including "statements about the effects of climate change in West Virginia's waters and communities, and about the environmental effects of fossil-fuel extraction, transport, and combustion." It is a member of multiple different coalitions committed to similar goals. To fund ts work, WVRC "solicits charitable contributions from the public through its website, mailings, emails, and events," but it does not publish the identities of its funders.

Plaintiff 350.org is a nonprofit corporation, and its "mission is to build a grassroots movement to end the use of fossil fuels and to accelerate the transition to renewable energy." The organization publishes information about climate change, organizes public demonstrations, and coordinates with other organizations with similar goals. 350.org also "solicits charitable contributions from the public through grant applications and through its website, mailings, emails, and events." Those grants and contributions are subject to opt-in confidentiality in some cases and agreed upon confidentiality in other cases.

And an excerpt from the court's First Amendment analysis (for more on RCP8.5, see this N.Y. Times article):

[T]he Court applies "exacting scrutiny" to compelled disclosures of protected First Amendment speech and association. To be a permissible intrusion on the First Amendment, "there must be 'a substantial relation between the disclosure requirement and a sufficiently important governmental interest.'" …

The subpoenas … "… concern[ ] an investigation into alleged unfair or deceptive acts or practices and other possible violations of the West Virginia Consumer Credit and Protection Act ('WVCCPA')." State code authorizes the Attorney General, if he "has probable cause," to "subpoena witnesses, compel their attendance, adduce evidence, and require the production of any matter which is relevant to the investigation."

Under West Virginia law, "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are … unlawful." Trade or commerce "means the advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state." "Unfair methods of competition and unfair or deceptive acts or practices" includes 16 different definitions including "[e]ngaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding."

Deploying these broad definitions, AG McCuskey's theory is that the Plaintiffs, environmental advocacy groups, published information, made comments, and advocated based on a study, the RCP8.5, that has been determined "implausible." According to AG McCuskey, this reliance, and subsequent advocacy, is a deceptive act or practice that affects the energy marketplace of West Virginia.

Begin with common sense—in what way could WVRC and 350.org violate the WVCCPA? They are not financial institutions, lenders, or creditors. They are not businesses seeking to make a profit by engaging with consumers. In fact, both are 501(c)(3) nonprofit organizations. They do not sell services of any kind. As explained, Plaintiffs are advocacy organizations committed to climate issues. Their missions are public education, dissemination of information, advocacy in support of their ideals, and public support of those who align with their beliefs. What little items they sell are merchandise bearing their names and logos. Surely these minimal sales from advocacy organizations are not the transactions the West Virginia legislature sought to protect consumers from….

Plaintiffs do not engage in commercial speech. By virtue of their missions as nonprofit environmental advocacy groups, their interests are not economic. Their interests include public education, funding environmental projects, modeling and projecting the effects of climate change, and contributing to a society that values clean air, clean water, and healthier lives. The fact that their advocacy touches on the economy is insufficient to be commercial speech. Therefore, Plaintiffs' protected speech and advocacy alleged in this case cannot be regulated under the WVCCPA.

Accordingly, I find that the WVCCPA cannot supply a "sufficiently important governmental interest" under the "exacting scrutiny" applied to freedom of association claims. I next turn to the severity of the "disclosure requirement" under the "exacting scrutiny" analysis….

As discussed, the subpoenas broadly assert that a violation of the WVCCPA might have occurred. And in his response, AG McCuskey admits that there may not be any WVCCPA violation. He does, however, have authority to issue subpoenas to investigate "whether a violation … has, in fact, occurred."

That violation, AG McCuskey argues, arises from only a few instances of Plaintiffs using a certain climate projection model, RCP8.5. Any publication born from that model, he asserts, is potentially unfair or deceptive. So to assess the breadth of the subpoenas and the compelled disclosure Plaintiffs are subjected to, the court turns to the subpoenas' demands. It is reasonable to assume that the demands would roughly track the RCP8.5-related violations and the allegations of unfair or deceptive trade practices.

Not so. The subpoenas ask for much more. The 16 categories of demands include every statement Plaintiffs have ever published about a West Virginia energy business with a "Climate Claim." But that demand is not limited to climate-related statements supported by the RCP8.5 model. It includes every climate-related statement that names a West Virginia energy business which is published and supported or informed, at least in part, by any model, study, project, plan, projection, or paper. Demand No. 4 is similarly broad: the subpoena demands every published projection concerning West Virginia and all documents related to those projections, without narrowing it down to those supported by the RCP8.5.

The rest of the demands do not even try to mask their broad and sweeping intentions. Donation requests, payments to third parties, and licensing and funding documents of all projects concerning West Virginia are demanded. Every document projecting costs and damages is demanded, as well as every report, study, model, or paper that the Plaintiffs directly or indirectly supported. Documents pertaining to internal considerations are demanded wholesale. So, too, are all documents pertaining to third-party communication and coordination in any fashion. And even with AG McCuskey's last-minute withdrawal of certain demands for donor information, Plaintiffs will still be obligated to disclose "board affiliation, coalition partners, grantees, agency submissions, internal deliberations and drafts, solicitation totals and targeting."

Plaintiffs call this a fishing expedition. In part, I agree. The subpoenas demand a large share of documents in Plaintiffs' control for the last ten years. But even on a fishing expedition, hoping to just get one bite in the vast and quiet water, a person brings a fishing pole. And in other cases, perhaps, a net. Here, AG McCuskey has abandoned both the fishing pole and the net. Instead, he has brought dynamite to the lake. Tossing a couple in, he hopes to catch something.

As stated, compelled disclosure that invades First Amendment protections can only stand if there is a substantial relation between what must be disclosed and a "sufficiently important governmental interest." Here, I find neither a sufficiently important government interest nor do I find a substantial relationship between the compelled disclosure and the government interest….

And the court also briefly notes plaintiffs' retaliation claim, without resolving it:

Plaintiffs have alleged substantial evidence to support their [retaliation] claim. AG McCuskey has publicly disparaged pro-environmental groups and has called for the DOJ to investigate similar groups. He has joined contentious litigation against environmental advocacy organizations. And the chasm between the subpoenas' demands and the purported basis for investigation suggests a retaliatory motive.

This phenomenon of state and federal investigation into the affairs of advocacy non-profits has begun to permeate our culture. The courts have enjoined civil investigative demands on comparable records. [Citations omitted. -EV]

However, because retaliation concerns the Attorney General's motive, I will reserve judgment on Count One until he can present evidence at a hearing for a preliminary injunction. Having already determined that an injunction is warranted on the basis of Count Two (freedom of association), the court declines to address the remaining counts….

Derek Teaney and Amanda Demmerle (Appalachian Mountain Advocates, Inc.) represent plaintiffs.

The post Court Blocks W. Va. AG's Subpoena to Environmentalist Nonprofits appeared first on Reason Magazine.

Summary of Argument

Under the Government's theory of spiritual coercion, people who at one point believed that volunteering for a religious organization is the path to enlightenment or salvation, but who later become disillusioned with their former beliefs, can be found to have been retroactively "coerced" into providing that labor. The same logic could apply to nuns who had felt religious pressure to do the educational or nursing work that their order was known for, or to monks who had felt religious pressure to do agricultural work that supports the monastery. Any religious organization that runs a monastery, convent, or any other institution where adherents are expected to work as part of their religious vocation could likewise face felony prosecutions.

Such a theory of criminal liability violates the Free Exercise Clause because it is not "neutral." Governments depart from neutrality not just when legislators pass laws designed to suppress religion, but also when courts enforce otherwise-neutral laws in ways that suppress religion precisely because of spiritual or religious qualities. Liability in this case turned precisely on the religious nature of the allegedly coercive conduct, and was imposed in the absence of any secular coercion such as violence or the threat of violence.

The sexual subject matter and conduct inherent within OneTaste's beliefs and practices is beside the point. The forced labor statute is not limited to sexual labor. 18 U.S.C. § 1589. Rather, it generally prohibits any "labor" obtained through "threats of serious harm." 18 U.S.C. § 1589(a)(3). Indeed, the "labor" subject of this charge was ordinary, non-sexual administrative work entailed in running a religious organization that features events and communal living.

To be sure, laws that restrict sexual labor will usually be neutral and generally applicable, precisely because they do not turn on any claims of religious or spiritual coercion. If any business, religious or not, offers its employees' sexual services in exchange for money, that might well violate generally applicable bans on prostitution or pandering. Likewise, if any business, religious or not, conditions employment on the employee's performing sexual services, that will usually constitute civilly actionable quid pro quo sexual harassment. And enforcing such laws would not jeopardize ordinary religious labor, precisely because they are focused on a narrow range of secularly-defined behavior that is seen as harmful (the exchange of sex for money or employment) rather than on a theory of spiritual coercion that can apply to a wide range of labor.

But such laws were not used in this case. The essence of this charge was punishing a particular religious group. The Court should vacate the convictions, or at least reverse and remand for a new trial with proper limiting instructions.

Argument

[I.] A theory of "spiritual coercion" violates the Free Exercise Clause.

The Free Exercise Clause of the First Amendment prohibits governments from targeting specific religious beliefs or practices as such. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). That prohibition bars more than just legislative enactments expressly targeting religion; it extends to criminal prosecutions that apply facially neutral laws in ways that target disfavored religious beliefs. Fowler v. State of R.I., 345 U.S. 67 (1953).

Of course, as Part III will discuss, "neutral" and "generally applicable" criminal statutes may be applied to religious behavior precisely the same way they are applied to secular behavior; otherwise, each of us would "become a law unto himself." Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 885 (1990); see also Reynolds v. United States, 98 U.S. 145, 167 (1878). But this power cannot be used to target religious actions because of their religious or spiritual character.

The threshold inquiry is whether the ideas are, within OneTaste's scheme of things, "religious." See Patrick v. LeFevre, 745 F.2d 153, 158-59 (2d Cir. 1984). Indisputably, Defendants, OneTaste, and adherents of OneTaste (including the so-called victims) all considered the doctrines subject of this criminal trial to be "religious." See A-977 ("We believed that … your path to God was through your orgasm") (emphasis added); see also A-1053 (adherents of OneTaste seek "something more" beyond ordinary existence believe "Our most potent biological drive, Orgasm, is the key to unlocking this power.").

OneTaste's doctrines addressed distinctions between the physical and spiritual realms in a dichotomy between the "third dimension" and the "fourth dimension." See A-694. They addressed issues of worldly suffering and promised both enlightenment and transcendence through ceremonial rites. A-1114 (orgasm "was more about energy," borrowing from "Buddhist principles like the concept of qi"); see also A-1446 ("OneTaste teachings integrate the principles of mindfulness with the practice of orgasm"); A-1089 (OneTaste teachings included sex "as a ritual practice" and "Magic School … where we had sort of like priests and priestesses of orgasm"); see also A-1426-1427 (PowerPoint presentation outlining "Alchemize shadow into power through orgasm" and "Orgasm Magic: Bringing out the elements of magic [and] Put the principles of OM into practice in creating what you want … [including] Rituals and ceremonies"). Specific ceremonies described in the record include a marriage ceremony at A-891, a foot soaking ritual at A-1085, and a shower ritual at A-1152. The central ritual tenet of OneTaste was ritualistic sexual activity is, OMing, or "Orgasmic Meditation," which adherents of OneTaste regard as a mindfulness practice, a "meditation on sensation without a goal," A-577, A-785.

The Government made much of the sexual nature of those beliefs and practices. E.g., A-1229. But it is no business of the government, including the courts, to "prescribe what shall be orthodox in … religion." W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Because OneTaste and its adherents considered these beliefs and practices to be "religious" within their scheme of things, the Free Exercise Clause protects their beliefs and practices from governmental targeting.

And the Government did not seriously contest OneTaste's religiosity; instead, it acknowledged, and even stressed, the spiritual and religious nature of OneTaste's activities. According to the Government's closing arguments, the essence of the charge was that "the defendants indoctrinated the victims to believe that Nicole Daedone was a guru and that her teachings were the path to enlightenment and spiritual growth." A-1222. Prosecutors took issue that "Nicole Daedone taught that orgasm was God." A-1232. And "[n]early all of them [victims] lived in OneTaste housing and were subjected to these teachings incessantly." A-1234. The complained-of "indoctrination" and "teachings" is the very essence of religion: leading adherents to accept doctrines as spiritual truths. That these supposed victims ordered their lives in accordance with OneTaste's beliefs and practices is evidence of spiritual and religious belief, not of criminally punishable coercion.

Had there been evidence these "victims" were physically coerced into accepting OneTaste's religious doctrines, such physical coercion would certainly have been illegal. But that was not the Government's theory. Each of these so-called victims freely admitted that they voluntarily joined the organization. A-267-268; A-872-873; A-939; A-1152-1153. And they freely admitted that they voluntarily left it. A-882; A-939; A-1107. The "indoctrination" and "teachings" for which Defendants stood trial only describes proselytization, the very essence of religion, which cannot be criminally punished.

Likewise, the prosecution argued that Defendants "disrupted victims' personal relationships and isolated them from their friends and family." A-1222; see also A-1235 (victims "felt like OneTaste was all they had"). More particularly, Defendants did so by encouraging some of their adherents, including these "victims," to live in a commune with other like-minded believers. A-262, 359-60, 775, 893-894, 1004-06. But this disruption likewise stemmed not from physical coercion or threats of violence, of deportation, or of other secular harm. Rather, it stemmed from the adherents' sense of the spiritual value of participating in a particular religious and spiritual community. A-872; A-1008-1009 (Ms. Kandell, particularly, described her time at the commune as "one of the greatest experiences of my life," partly because of "the sense of community" and "the focus of the communal living"); A-1138-1139.

This is a commonplace practice among many religious orders. By definition, any follower of any monastic tradition could be described as having their personal relationships "disrupted" or becoming "isolated" from their less committed friends and family. Volokh, Addiction, 75 Emory L. J. at 1190. Nor does it say anything that a religion discourages association with non-adherents, as many religious groups do. E.g., Paul v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 819 F.2d 875, 883 (9th Cir. 1987) ("The harms suffered by Paul as a result of her shunning by the Jehovah's Witnesses are clearly not of the type that would justify the imposition of tort liability for religious conduct. No physical assault or battery occurred.").

The Government also invited the jury to convict because Defendants "financially harmed victims by driving them into debt and not paying them for their labor." A-1222. More specifically, the Government stressed that Defendants accepted, and even encouraged, these "victims" to volunteer their services to their chosen religious organization. A‑908‑910; A‑1028‑1030; A‑1095-1103. But these "victims" were not coerced or defrauded into performing these volunteer services; they knew full well that their services would be unpaid, and they still chose to volunteer their efforts. A-947-48; A-1152-53; A872-76. This too is commonplace among religions: Under our constitutional tradition, it is a defining feature of religion that it relies on charitable contributions of money, goods, and services from its adherents. See generally James Madison et al., Remonstrance Against Religious Assessments (reproduced in full at Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 63–72 (1947)). Indeed, many religions call for participants to tithe 10% of all their secular income. See Volokh, Addiction, 75 Emory L. J. at 1180 n. 5. But for First Amendment protections, a hostile jury could punish that practice as extortion because of religious pressure constituting "the threat of social ostracism or eternal damnation, or from the promise of community or of eternal." Id., at 1180.

The crux of the Government's charge was that the Defendants "forced" the purported victims to perform voluntary services through religious indoctrination and, more generally, made them feel reliant on OneTaste. See A-1236 (victims "felt like their whole world was OneTaste. It was their community, their friends, where they worked, and where they lived. And the defendants did all of this by design"). But such feelings of deliberately induced reliance on a religious community are entirely unremarkable in the religious context. See Volokh, Addiction, 75 Emory L. J. at 1183 (observing that a common technique among many religions is to "slowly lur[e] people into a community and a belief system that they may eventually find emotionally hard to leave, even if they feel some desire to leave").

Many Christians preach eternal damnation without Christ. Buddhists preach eternal suffering without dharma. Latter-day Saints encourage extensive participation in church callings, missionary service, and a tightly integrated congregational life. Countless religious traditions promise spiritual fulfillment, enlightenment, or eternal happiness through faithful adherence to their beliefs and practices. See Volokh, Addiction, 75 Emory L. J. at 1180, 1190. Many religions cause each of us to act and believe in ways non-adherents of our chosen path would find to be irrational or even "rank heresy." See United States v. Ballard, 322 U.S. 78, 86 (1944).

It is no answer for the Government to charge that these so-called victims felt "compelled" to perform the subject services because that compulsion was the product of religious conviction. If each of us are to be entrusted with the right to enter and exit our chosen religions at will, then each of us must also accept the risk that our chosen religions may cause us to donate time, money, or goods. The Court should find that the Free Exercise Clause prohibits this conviction.

[II.] The trial itself was not religiously "neutral."

Government's enforcement action, even under a facially religion-neutral generally applicable statute, violates the Free Exercise Clause when the enforcement of the statute is itself not "neutral," See Masterpiece Cakeshop v. Colorado C.R. Comm'n, 584 U.S. 617, 634 (2018). In Masterpiece Cakeshop, the government sought to enforce Colorado's public accommodations statute in part because of the religious motivations of a baker. Commissioners departed from neutrality by describing the baker's religious beliefs as "despicable" and characterized them as merely rhetorical. Id., at 635. Even "subtle departures from neutrality" on matters of religion are prohibited, not just when a legislative branch enacts a law but also when the executive branch enforces it. See id., at 638.

Just as in Masterpiece Cakeshop, the record in this case is replete with denigration of this particular religion. Ms. Gupta invited the jury to scrutinize OneTaste's vocabulary and the specific doctrines as evidence of wrongdoing. A-1232. She emphasized the specialized use of words or phrases "TurnON" (which seemed [synonymous] with the yoga phrase "state of flow"), "muggles" (meaning non-adherents of OneTaste), "matrix" (referring to "my fake reality of problems"), and "tumescence" (in the specialized spiritual sense of "bad energy that you were holding onto"), and the dichotomy between the "third dimension" (the "concrete world") and the "fourth dimension" ("the higher plane"), and asserted these words or phrases were being used to "indoctrinate the victims." A-1232, A-1235. This argument directly invited the jury to judge unfamiliar or strange religious concepts as proof of religious illegitimacy, which neither prosecutors nor jurors may do. See Masterpiece Cakeshop, 584 U.S. at 639; Fowler, 345 U.S. at 70.

Religions routinely use specialized phrasing like "saved," "possessed," "called," or "enlightened," which may appear unacceptable or incomprehensible to outsiders. That strangeness does not deprive OneTaste of First Amendment protections and certainly cannot underlie a felony criminal conviction, especially when the phrasing refers to spiritual or transcendental concepts. See Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 714 (1981). Quite the opposite: Our natural aversion to other religions is why we have tolerance protections enshrined in the First Amendment to begin with. See Ballard, 322 U.S. at 87; see also Marsh v. Chambers, 468 U.S. 783, 792 (1983).

The prosecutor also described OneTaste as a "sex cult." A-1223, A-1264. That label was inherently pejorative. See United States v. Helbrans, No. S219CR497NSR0102, 2021 WL 4778525, *17 (S.D.N.Y. Oct. 12, 2021) (prohibiting the Government from referring to defendants as being part of a "cult," prohibiting insinuations that "leaders brainwash or force members of the community to behave in or observe their religion in a certain way," and prohibiting "incendiary and irrelevant references" to the religious organization). The prosecutor was using this label as a rhetorical device to persuade jurors that OneTaste's teaching should be regarded with suspicion because they were unconventional. Just like in Masterpiece Cakeshop, this label was employed with the impermissible goal of suggesting the illegitimacy of a particular set of religious beliefs and practices. See 584 U.S. at 635.

The prosecutor argued, "that's not because OMing  was actually spiritual. They connected OMing to spirituality for legal protection, and so people would follow Nicole Daedone's teachings." A-1233; see also A-1381 ("They [Defendants] whittled them [victims] down by … indoctrinating them with so-called spiritual teachings and practices."). But what forms of meditation are "actually" spiritual and what are just "so-called" spiritual is not for secular courts to decide. It is no business of our secular government to "prescribe what shall be orthodox in … religion." Barnette, 319 U.S. at 642. The Government simply cannot put the legitimacy of religious or spiritual ideas on trial. Ballard, 322 U.S. at 86-88. Yet the Government did exactly that by arguing:

It is not okay to teach your employees that their spiritual purpose is to fuck the war out of men and that if they stray from the [path] set by OneTaste and by Nicole Daedone, they will be spiritually ruined.

A-1284.

And while there is a narrow zone in which a properly instructed jury can determine whether people's religious beliefs are sincerely held, United States v. Seeger, 380 U.S. 163, 165 (1965), no such instruction was given to the jury in this case. Quite the contrary, the District Court declined to provide jury instructions that any "alleged threats were covered by the First Amendment." A-1211. The District Court even warned defense counsel against referencing Defendants' First Amendment rights: "I'm not going to let you instruct the jury or even come close to instructing the jury on the First Amendment." A-1212. And the District Court refused to order a mistrial despite that the Government "ask[ed] the jury to hold their spiritual beliefs against them." A-1315-1316 (argument); A-1318 (denial).

The Government's rhetorical devices are a far cry from the neutrality required by Masterpiece Cakeshop. The Government was overtly hostile to Defendants' religion in itself and openly invited the jury to judge the legitimacy of OneTaste's religious doctrines and practices. It is no answer that the jury accepted the Government's invitation because the highest law of the land removes that power from legislator, judge, juror, and prosecutor alike. "If one could be sent to jail because a jury in a hostile environment found those teachings to be false, little indeed would be left of religious freedom." Ballard, 322 U.S. at 87.

[III.] Defendants were not charged with commercial sexual practices.

To be sure, nothing in this argument precludes the application of genuinely neutral laws to regulate commercial sexual behavior. For instance, an organization that sells members' or employees' sexual services for money can still be subject, under Employment Division v. Smith, to neutral and generally applicable bans on prostitution. Such laws can be applied without resorting to arguments about spiritual coercion, or claims that the defendant supposedly "indoctrinat[ed people] to believe that [she] was a guru and that her teachings were the path to enlightenment and spiritual growth." A-1222. It would not matter whether the  defendant "taught that orgasm was God." A-977. Commercial sale of certain services that lead to orgasm would be the crime, with no need to address the spiritual significance of the orgasm itself.

Likewise, if an employee claims that an employer required sexual services as a condition of employment, the employee could sue for quid pro quo sexual harassment, again a matter that is entirely religion-neutral. Indeed, the government could even criminalize such quid pro quo sexual harassment. See Tex. Penal Code Ann. § 39.03 (criminalizing sexual harassment under color of public office).

Unlike with the Government's expansive reading of the coerced labor statute, none of this would threaten religions that have a tradition of monasticism, or of religious labor as a calling. None of this would treat religious or spiritual teachings as "coercion." And none of this would treat such teachings as crimes when they lead people to feel moved, or even spiritually or religiously obligated, to perform certain tasks that are given to them by a spiritual or religious community.

Of course, in this case the Government chose not to prosecute under statutes banning commercial sale of sexual services—perhaps because there was no evidence that money was being exchanged in return for sexual activity. But these laws exist, and deal with genuine commercialization of sex. Likewise, laws banning rape and sexual assault exist, and deal with genuine physical coercion of sexual acts. There is no reason for a concern about possible commercialization of sex to be used to justify an overbroad reading of coerced labor statutes, which would apply far more broadly than just to sex.

Conclusion

Because the Government's theory of coercion rested in part on "indoctrination" into religious and spiritual beliefs and threats of excommunication from a religious and spiritual community, these criminal convictions cannot withstand Free Exercise Clause scrutiny….

 

The post Amicus Brief in OneTaste Criminal Prosecution appeared first on Reason Magazine.

The First Amendment and article I, § 8 of the Missouri Constitution broadly protect the right to speak to the public about other people. This is true even when the speech "is intended to trouble or annoy, or to make another timid or fearful." United States v. Sryniawski, 48 F.4th 583, 587 (8th Cir. 2022). And it is true even when speech uses "social pressure and the 'threat' of social ostracism … to embarrass others or coerce them into action." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982). While individuals who are the subjects of unwanted speech may be able to limit some speech directed to them, they cannot limit offensive speech about them directed to others. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Contrary to this established law, Matthew McMenamy was convicted and sentenced to 10 years in prison for openly and vigorously criticizing a local police detective he believed had engaged in misconduct. Mr. McMenamy used his public social media accounts and publicly distributed flyers to attempt to draw the community's attention to the detective's actions. He expressed his hope that his revelations would result in the officer's removal.

While Mr. McMenamy's speech was certainly concerning to the detective, the circuit court did not make any finding that either the flyers or any one of the dozens of social media posts submitted as evidence fell within any category of unprotected speech, such as true threats. Nor could the circuit court have done so, as none of Mr. McMenamy's speech was outside the bounds of the First Amendment's protection. His convictions for harassment and stalking violate the First Amendment and should be reversed.

The opening paragraph of the section on the facts (for the full discussion of the facts, read the brief):

In August 2023, Matthew McMenamy began posting on social media about what he viewed as misconduct and racism by a local police detective, who years before had been involved in Mr. McMenamy's involuntary commitment. See State's Exs. 60A–M. Mr. McMenamy sought to publicize one of the detective's public Facebook posts, where the detective wrote: "If black lives matter then why are they shooting and killing each other at an alarming rate." State's Ex. 60B ("Let's make this racist post go viral … #BLM #RacistCop ….); State's Ex. 60A ("The people want answers. Is [detective] a racist? Does he feel that people of color do not matter because of an idea that they murder each other at an alarming rate?"). Many of Mr. McMenamy's posts were aimed at sharing with the public his concerns about the detective's fitness for his position. For example, Mr. McMenamy posted he was "in talks with a billboard company to put [detective's] racist quotes up next to a picture of him in uniform" because "[s]omeone like that shouldn't be a detective, an election [sic] official, or let alone anything near public service." Tr. 736:10–21, State's Ex. 60K. Mr. McMenamy's posts also described his feelings about his prior involuntary commitment and thoughts about hurting his parents before getting help. See State's Ex. 60E (Mr. McMenamy's post that he "had a bad day last Sunday … I still need time to heal but … I am going to counseling and I will be looking for support groups").

And the opening material in the legal argument (again, read the brief for much more):

All of Mr. McMenamy's social media posts and his distribution of flyers were protected by the First Amendment. Harassment and stalking laws may, in some circumstances, be constitutionally applied to protect unwilling listeners from unwanted, one-to-one speech directed to that listener. The government's power to protect an unwilling listener from speech about them directed to the public, on the other hand, is sharply limited, even when that speech is annoying, offensive, or alarming. Unless such speech falls within one of the narrow, historically recognized categories of speech that the U.S. Supreme Court has held may be regulated without violating the First Amendment, such as "true threats," it is presumptively protected.

Here, Mr. McMenamy spoke to the public, and his speech did not fall within any unprotected category. This Court should reverse Mr. McMenamy's convictions. Even if this Court does not find that all Mr. McMenamy's speech is protected from criminal prosecution by the First Amendment, he is at least entitled to a new trial. The circuit court allowed the State to present evidence of more than four months' worth of social media posts to the jury and then instructed the jury it could find Mr. McMenamy guilty based on unidentified "alarming content" in these posts. This means a juror could have convicted Mr. McMenamy based on speech protected by the First Amendment.

[I.] The State's prosecution of Mr. McMenamy for harassment and stalking based on unwanted speech about individuals directed to the public violates the First Amendment.

Speech directed to the public at large is presumptively protected unless it falls into one of the narrow, historic exceptions to the First Amendment. This is because even if some listeners are likely to be offended, others may be willing listeners who find the speech valuable. For this reason, while harassment and stalking statutes may, in some instances, be constitutionally applied to repeated unwanted communications to an individual, they cannot be constitutionally applied to communications to the public about an individual.

[A.] Stalking and harassment statutes were originally intended to limit unwanted communications directed to a specific person.

For decades, laws have "restricted certain kinds of unwanted speech said to a particular person." For example, state and federal criminal harassment statutes were enacted to prohibit unwanted telephone calls to a particular person. Similarly, the federal government and some states have banned certain unwanted mailings into the home. These laws reflect an intention to protect individuals from repeated, unwanted communications to them, particularly in the home.

More recently, states enacted stalking laws to proscribe behaviors such as physically following, surveilling, or engaging in repeated unwanted personal contacts with a particular person. Courts have relied on stalking laws or restraining order laws to ban repeated or annoying letters, phone calls, or personal contact from a particular person. While some of these laws have been struck down in some states, "they have generally been upheld by lower courts; and the U.S. Supreme Court has upheld the federal ban on repeated unwanted mailings."

These laws share something in common: In the vast majority of their applications, they restrict unwanted speech to a person, not unwanted speech about a person. It is in this context—where the laws are being applied to "one-to-one speech"—that they "have generally been upheld against First Amendment challenge." Id.

As the internet has made it easier for communications to reach the public, maintaining this distinction between constitutionally permissible punishment of certain one-to-one speech and constitutionally impermissible punishment of one-to-many speech is critical. Social media is "the modern public square." However, the increased exposure for "upsetting" or "frightening" online speech can bring with it an increased risk of overcriminalization. Online communication "lack[s] many normal contextual clues," including tone of voice and expression. "The ubiquity of this speech raises the possibility of highly discretionary enforcement." Thus, in the context of online speech, courts must exercise particular caution to ensure the state's application of harassment and stalking laws does not exceed the laws' original intention or permissible constitutional boundaries.

[B.] The First Amendment grants broad protection to speech directed to the public at large, even when the subjects of that speech may be alarmed or offended.

The U.S. Supreme Court has consistently recognized a distinction between speech directed to the public at large and interpersonal speech for First Amendment purposes. Even when the content of the speech is subjectively offensive or alarming, the U.S. Supreme Court has typically protected public statements about a person—absent a showing of a narrow and well-established First Amendment exception, such as true threats, fighting words, or defamation.

As now-Justice Alito stated: "There is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001); [citing other cases]. Many courts have endorsed this very point, quoting Saxe, in the context of criminal harassment laws and the closely related harassment restraining order laws. [Citing still more cases].

Unlike prohibitions on speech said to a particular unwilling listener, restrictions on speech to the public deprive a speaker of the opportunity to communicate with willing listeners. Denying access to potentially interested audiences undermines the use of speech to influence opinion and conduct and, as a result, hinders the robustness of public debate—particularly when the restricted speech concerns a matter of political, social, or other concern to the community. One's interest in being free from public criticism is insufficient to overcome protection for speech….

Accordingly, public statements about a person that coerce, annoy, alarm, offend, or embarrass are generally protected by the First Amendment. {The State may have some power to restrict narrowly defined categories of speech that reveals private information about a person that is "almost never relevant to any discussion on either public or private topics" (e.g., nude photos, Social Security numbers). No such speech is at issue here.} In Organization for a Better Austin v. Keefe (1971), a local civil rights organization believed a local real estate broker's practices were improper. After the broker refused to sign an agreement not to solicit property in the organization's community, the organization distributed leaflets critical of the broker's supposedly racist real estate practices at a local shopping center, on the doors of his neighbors, and to people going to and from his church. Some leaflets accused him of being a "panic peddler" that employed tactics to scare white homeowners into selling their properties; others encouraged recipients to call his home phone number to express their disapproval. The U.S. Supreme Court concluded that the organization's "inten[t] to exercise a coercive impact … does not remove [speech] from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper." The U.S. Supreme Court explained, "so long as the means are peaceful, the communication need not meet standards of acceptability," particularly where the target of the speech "is not attempting to stop the flow of information into his own household, but to the public."

While speech that is intended to solicit violence against particular people may be punishable, speech to the public that harshly criticizes its target or that attempts to persuade through social pressure does not lose its protection even if some listeners may react with threats or violence. In NAACP v. Claiborne Hardware Co. (1982), organizers of a boycott of stores owned by white merchants read aloud and published the names of Black residents who weren't following the boycott to place pressure on them. As in Keefe, the U.S. Supreme Court held the disclosures constitutionally protected, noting the First Amendment extended beyond abstract discussions to protect "offensive" and "coercive" speech intended to influence action. This was true even though some of the people who chose not to comply with the boycott were beaten, had their property damaged, or had shots fired into their homes. The U.S. Supreme Court explained that speech designed to persuade "through social pressure and the 'threat' of social ostracism … does not lose its protected character … simply because it may embarrass others or coerce them into action." …

For a couple of articles of mine on the subject, see One-to-One Speech, One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking" and Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases.

The brief was signed by Kristin M. Mulvey, Jonathan D. Schmid, Gillian R. Wilcox, Jason A. Orr (ACLU Missouri) and Lisa S. Hoppenjans, Benjamin J. Wilson, and students Lindsey Bennett. Megan McConnell (Wash. U. First Amendment Clinic).

The post 10-Year "Harassment"/"Stalking" Sentence for Repeatedly Criticizing Police Detective Violated First Amendment, Amicus Brief Argues appeared first on Reason Magazine.

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California Senate Bill (SB) 399 prohibits an employer from subjecting, or threatening to subject, an employee to adverse action if the employee chooses not to attend an employer-sponsored meeting or receive communications from the employer, "the purpose of which is to communicate the employer's opinion about religious or political matters."

The court concluded that the law restricts speech and not just employers' disciplining employees:

It is true that SB 399 facially forbids only the act of "subject[ing], or threaten[ing] to subject, an employee" to discipline for declining to attend certain meetings. But the law only applies to employers who engage in expressive activity at those meetings: namely, "communicat[ing their] opinion. It does not, for example, prohibit taking adverse action against employees who decline to attend a meeting, the sole purpose of which was for employees to fill out their annual tax paperwork. It prohibits adverse action only when the meeting's purpose was for the employer to engage in expressive activity. Thus, the First Amendment applies.

Our conclusion accords with the Eleventh Circuit's recent decision in Honeyfund.com, Inc. v. Governor (11th Cir. 2024). In Honeyfund.com, employers challenged Florida's Individual Freedom Act [part of the Florida Stop W.O.K.E. Act -EV], which forbade subjecting "any individual, as a condition of employment," to "training, instruction, or any other required activity" endorsing certain ideas [related to race, sex, or national origin -EV]. As California does here, Florida defended the law as "a ban on conduct because only the meetings are being restricted," not the underlying speech.

Our sister circuit rejected Florida's conduct-not-speech defense because the only way to know if the law had been violated was to examine the message conveyed at the meeting. Because "the conduct regulated depend[ed] on—and [could not] be separated from—the ideas communicated," Florida's law was "functionally a regulation of speech" implicating the First Amendment.

So too here. If an employer disciplines an employee for failing to attend an employer-sponsored meeting, the only way to know if SB 399 was violated is to "examine the content of the message that is conveyed" at the meeting. We must ask: did the employer express an opinion on political or religious matters?

So "the disfavored 'conduct'"—subjecting absentee employees to disciplinary action—"cannot be identified apart from the disfavored speech"—the employer's opinion on political or religious matters. Further, that California's law (unlike Florida's law) is viewpoint-neutral does not make it content-neutral. Because employers are forbidden from taking adverse action only if they communicate certain messages at the underlying meeting, the law inevitably singles out employers based on their expressive activity….

The court then concluded the law was content-based ("because it applies only when the employer has discussed certain topics: politics and religion") and speaker-based (limited to speech by employers), and was therefore unconstitutional unless it was narrowly to a compelling interest. And it held that the law likely couldn't be justified by an interest in protecting a "captive audience":

In tension here are "the First Amendment rights of speakers" and "the privacy rights of those who may be unwilling … auditors." The State may protect the unwilling auditor's privacy "by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content." As discussed above, that is not what California did here: SB 399 singles out political and religious speech for regulation. Thus, California, "acting as censor, undert[ook] selectively to shield the public from some kinds of speech on the ground that they are more offensive than others." The Supreme Court has said that "[s]uch selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling … auditor to avoid exposure." In such circumstances, California's ability to limit "discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner."

California fails to identify a single case where a content-based restriction has been upheld because employees were deemed a captive audience or had their substantial privacy interests invaded in an essentially intolerable manner. Instead, the State points to cases upholding speech limitations on public transit, at healthcare facilities, and on school premises, which referred to commuters, patients, and students as captive audiences. California contends that employees are equally captive because they are economically dependent on their employer and risk losing their job, with its pay and benefits, should they refuse to listen to their employer's speech. Thus, California argues that employees need as much protection from unwanted speech at work as commuters on public transit, patients at healthcare facilities, and students at public schools.

California's argument goes too far. Both the Supreme Court and our Court have referred to "captive audiences" only when the government acts as a proprietor or in the context of content-neutral time, place, and manner restrictions. Neither court has relied on a "captive audience" theory to identify a compelling interest sufficient to uphold content-based restrictions on nongovernmental speech in a nongovernmental setting. Nor, as far as we can tell, have any of our sister circuits, with the Eleventh Circuit directly rejecting such a theory. Honeyfund.com. A brief review of the key cases on which California relies demonstrates the point.

The first is Lehman v. City of Shaker Heights (1974), in which the City of Shaker Heights sold advertising space on its public transit vehicles but refused to accept paid political advertising…. A four-Justice plurality … conclud[ed] that the city, operating "in a proprietary capacity," had decided to limit the kinds of advertisements displayed based on several prudential factors. One of those factors was "the risk of imposing upon a captive audience"—commuters. To the plurality, the commuters' "captivity" was merely a prudential consideration in the city's decision to not allow certain advertising on its property.

In his solo concurrence in the judgment, Justice Douglas also described commuters as a "captive audience." That was relevant to his analysis because he believed that the commuters' right "to be free from forced intrusion on their privacy preclude[d] the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience." To Justice Douglas, the commuters' "captivity" limited the city's ability to turn its transit vehicles into a First Amendment forum.

The Supreme Court has since characterized Lehman as recognizing the government's ability to "bar from its facilities certain speech that would disrupt the legitimate governmental purpose for which the property has been dedicated." Our precedents consider an audience's "captivity" in the same manner as Lehman: as a prudential factor for a government, acting as proprietor, to consider when deciding what speech to allow in a nonpublic forum.

The Supreme Court has also considered an audience's degree of captivity when deciding if content-neutral time, place, and manner restrictions on speech in traditionally public forums are reasonable. The two examples California cites involved such restrictions imposed on public ways near healthcare facilities, in which patients are "held 'captive' by medical circumstance."

In short, these cases reveal that an audience's degree of "captivity" is relevant when the government, acting as a proprietor, excludes certain kinds of speech from nonpublic forums or when evaluating the reasonableness of content-neutral time, place, and manner restrictions imposed by the government acting as a regulator. No federal appellate court, including the Supreme Court, has relied on a "captive audience" theory to identify a compelling interest sufficient to support a content-based restriction on nongovernmental speech in a nongovernmental forum.

Considering the dearth of support for California's position and that the "captive audience" theory has been applied to support content-based speech restrictions only in nonpublic government forums, we conclude that the industry groups are likely to succeed on the merits of their First Amendment claim.

The plain, if at times disquieting, truth is that in our pluralistic society, … we are inescapably captive audiences for many purposes. Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.

The logic of the decision would also apply to similar laws in Connecticut, Delaware, Illinois, Maine, Maryland, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the Virgin Islands, many of which were enacted within the last several years. (Of course, the Ninth Circuit decision binding precedent is only binding in, of these states, Oregon and Washington; in others it is only potentially persuasive precedent.)

I expect the decision to be quite controversial, and there will probably be an en banc rehearing petition. Note, though, that the panel consisted of two Clinton-appointed Senior Judges and a Trump-appointed judge; this makes it hard to predict how the en banc court (currently split 16-13 between Democrat and Republican appointees) would vote.

Lonnie D. Giamela (Fisher & Phillips LLP) and Todd A. Lyon (Fisher & Phillips LLP) represent plaintiffs.

UPDATE 10/30/2026, 11:18 am: Note that I signed on to an academics' amicus brief in the case, written by Jennifer Safstrom and Ryan Riedmueller (of Vanderbilt Law School's Stanton Foundation First Amendment Clinic), which focused solely on the standing issues (not the First Amendment merits argument).

The post Law Banning Employer Requirements That Employees Listen to Employer's Religious or Political Speech Likely Violates Employer's First Amendment Rights appeared first on Reason Magazine.

At the same time, judges are generally quite well-trained lawyers, and know a good deal about what they're writing about. Conventional wisdom holds that federal judges generally are particularly well-qualified (of course, with exceptions, as is true for all institutions). Federal judges also generally employ quite well-qualified law clerks, who do much of the  research and initial opinion drafting.

This means that, for all the risk of error and ideological bias, judges generally (though not always) know what they're talking about in their legal analysis. They tend to particularly know more than non-lawyers, but also often more than lawyers who aren't specialists in the particular field. You might assume that some judge is "woke" or "Trumpy" or what have you, but there's a pretty good chance that the judge's legal analysis is still correct.

This post was prompted by a comment I saw on the Eric Coomer (of Dominion Voting) Loses Libel Lawsuit over The Deep Rig post, though this is just one example of a broader trend. The comment quotes an excerpt from the post's excerpt of the judge's opinion:

In short, if the law did not require "clear and convincing evidence" that the defendant subjectively doubted or disbelieved the published statements, it is likely that Byrne's motion for summary judgment would have been denied, and a jury would have had the opportunity to weigh in on this matter. However, under the law as it currently stands, Coomer's evidence is insufficient to meet these standards and summary judgment for Byrne is therefore required….

The comment then says, "Trumpy judge who apparently didn't bother to read Sullivan, which states" (emphasis added by commenter),

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

And the comment continues, "Seems like this is ripe for appeal. This Trumpy judge seems to think the current precedent requires that the defendant 'subjectively doubted or disbelieved the published statements,' when Sullivan has a looser standard."

The trouble with the commenter's analysis is that Sullivan was of course not the last word on the subject—as the judge knew. Indeed, if one searches for "subjective" in the judge's opinion, one sees a longish passage citing authority supporting the judge's analysis:

Actual malice requires proof that the defendant published the challenged statement with knowledge of its falsity or with reckless disregard for whether it was false. See id. [Coomer v. Donald J. Trump for President, Inc., 552 P.3d 562, 581 (Colo. App. 2024)]; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); St. Amant v. Thompson, 390 U.S. 727, 731 (1968). The test for actual malice is a subjective one. Thus, the issue is not whether "a reasonably prudent [person] would have published, or would have investigated before publishing," but rather whether the defendant "in fact entertained serious doubts as to the truth of [the] publication, or was highly aware of its probable falsity[.]" Coomer, 552 P.3d at 591; Diversified Mgmt., Inc. v. The Denver Post, Inc., 653 P.2d 1103. 1105-10 (Colo. 1982) (en banc); Michel v. NYP Holdings, Inc., 816 F.3d 686, 703 (11th Cir. 2016) ("[W]e ask whether the defendant, instead of acting in good faith, actually entertained serious doubts as to the veracity of the published account, or was highly aware that the account was probably false."); Dershowitz v. Cable News Network, Inc., 153 F.4th 1189, 1193 (11th Cir. 2025) ("[A]ll that matters are the speakers' subjective beliefs about the truth of their own statements.").

St. Amant, cited by the court, indeed states,

[The precedents] are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

Gertz v. Robert Welch, Inc. (1974) expressly quotes this passage as the Court having "equated reckless disregard of the truth with subjective awareness of probable falsity." The judge in the Coomer / Deep Rig case, whether you view him as "Trumpy" or not, knew the law here, and the commenter (who had elsewhere said he wasn't a lawyer) didn't seem to.

So, again, definitely view judges' work skeptically, and feel free to criticize it. But don't assume that just because you know one precedent in the field you know the law better than the judge. Don't assume that just because you think the judge has some ideological bias, that ideological bias has led the judge into legal error. And if you have some skepticism about the judge's analysis, check the sources that the judge cites in the full opinion; my posts usually just excerpt the opinion, and often don't include citations, but they generally link to the full opinion so readers can consult it directly.

The post Even "Trumpy Judges" and "Woke Judges" Might Know More Law Than You Do appeared first on Reason Magazine.

This highly contentious defamation action arises from The Deep Rig, a documentary film concerning alleged fraud in the 2020 presidential election[, which was financed by defendant Patrick Byrne, who also appeared in the film].…^. Plaintiff Eric Coomer formerly served as director of product strategy and security for Dominion Voting Systems, a supplier of election hardware and software with its United States headquarters in Colorado. Among other things, the film included statements by non-party Joseph Oltmann claiming that he infiltrated a conference call involving members of Antifa and heard comments from a speaker identified by another anonymous participant on the call as "Eric" and "the Dominion guy."

According to Oltmann, the speaker stated on the call in substance that President Donald J. Trump would not win the election because he had "made sure of it." Oltmann clams he later determined through research and by recognizing Coomer's voice that the speaker had been Coomer. Oltmann further stated that he concluded there was a "high probability" Coomer affected the election. Coomer denies participating in any such call or manipulating the results of the 2020 Presidential election and alleges that Oltmann's story presented in the film was false and defamatory.

Coomer sued, and the court earlier held that he had adequately "alleged sufficient facts to avoid dismissal" and to proceed to discovery. But then Byrne sought summary judgment, arguing that, after discovery, Coomer hadn't introduced evidence to support his claim. And the court concluded that Coomer had indeed not uncovered enough evidence to prove "actual malice" by clear and convincing evidence:

[U]nder Colorado law, where the alleged defamatory statement relates to a matter of public concern, a defamation plaintiff must prove actual malice on the part of the defendant, and must do so by clear and convincing evidence, even if the plaintiff is not a public figure. Coomer has expressly conceded that the statements at issue concern matters of public concern, [and] that Colorado's actual malice standard applies ….

Coomer himself asserts that Byrne believed the 2020 election was rigged immediately after the election. Byrne testified that he believed Oltmann's story and remains highly confident that the gist of Oltmann's story was true. Although the actual malice standard focuses on Byrne's subjective state of mind and beliefs, Byrne's statements as to those beliefs are not necessarily dispositive and Coomer may seek to establish Byrne's subjective lack of belief in the story through circumstantial evidence. The relevant question, then, is whether the evidence Coomer points to is sufficient to support a jury finding, under the clear and convincing evidence standard, that Byrne in fact subjectively disbelieved or had serious doubts about Oltmann's story.

Coomer points to circumstantial evidence that includes the improbable nature of Oltmann's allegations, the lack of independent investigation by Bryne and the lack of corroboration for Oltmann's story, published reports and opinions rebutting claims of election fraud, and Coomer's denials and other suits for defamation filed prior to the publication of the film. It would be reasonable to conclude from a totality of the evidence that, had Byrne acted reasonably, he would have concluded that Oltmann's story was probably false and that Coomer probably did not attempt to tamper with or "rig" the 2020 Presidential election. However, the question for the jury at trial would not be whether Byrne reasonably should have reached that conclusion. It would be whether he did in fact reach that conclusion or at least harbored serious doubts about Oltmann's story or was highly aware it was probably false….

[R]egardless of whether a finding of actual malice might be supportable under the preponderance standard, the evidence is insufficient to support the same conclusion under the much higher clear and convincing standard. Byrne's lack of skepticism, failure to investigate, and disregard for government reports and conclusions by others debunking claims of fraud the 2020 election are equally consistent with negligence and a belief that there was essentially a coverup going on, in line with the grand conspiracy theory portrayed in the film.

Coomer points out that Byrne did not include Oltmann's story in his own book of the same title, but Byrne explained that he wanted to present an argument based on publicly available information, which, unlike a single witness's account of an unrecorded phone call, would be taken seriously as supporting a nationwide investigation. Any inference from the totality of this evidence to a conclusion that Byrne actually disbelieved or seriously doubted Oltmann's story would be weak at best and insufficient to support a finding of actual malice by clear and convincing evidence….

Allowing a jury to infer from evidence that a reasonable person would have doubted Oltmann's story to a conclusion that it is not only possible, but highly probable and free from serious or substantial doubt that Byrne, did, in fact, have serious doubts about it would require the Court to ignore not only the standards just discussed but human nature as well.

The world has always had people with zealously held beliefs who are quite vocal and eager to share their views with anyone who will listen. These people are frequently labeled, pejoratively, as extremists, fanatics, "kooks," "crazies," conspiracy theorists, and the like. They typically have a lot to say on their subjects of interest, and modern technology has given them a powerful microphone to convey their thoughts well beyond the limits of their own communities or personal echo-chambers.

They may make statements that reasonable people consider to be wrong, and sometimes their statements are, in fact, objectively and demonstrably wrong. But those with zealously held beliefs hold firm even when overwhelming objective evidence may be to the contrary. This is because they genuinely and sincerely believe what they say with every fiber of their being, even when objective evidence may suggest otherwise. Many are highly intelligent and sophisticated people, but they never seriously doubt the truth of their statements and remain steadfast in their beliefs no matter what. While these speakers sometimes espouse beliefs and make statements many might consider to be extreme, offensive, irresponsible, and factually wrong, their beliefs are, nonetheless, sincerely held and those speakers believe everything they say is completely true.

Even aside from extreme examples, people in general are hardly paragons of reason and often do not reach or maintain their beliefs by dispassionate assessments of the evidence. They believe what they do, especially on important political, moral and religious issues, as a result of unconscious biases, predispositions, prior emotional, philosophical, and political commitments and intuitions, as well as a disinclination to exert the effort or risk the emotional discomfort involved in exposing themselves to contrary evidence and viewpoints.

As John Kenneth Galbraith observed, "[f]aced with the choice between changing one's mind and proving that there is no need to do so, almost everyone gets busy on the proof." Operating within an echo chamber while believing oneself to be well-informed and reasonable has become increasingly easy to do in the age of slanted news sources and targeted media constantly telling their constituencies what they want to hear.

Of course, people with sincerely or even zealously held beliefs may make statements that are both untrue and inflict serious harm on others. Under the actual malice standard, unless it can be proven that the speaker subjectively believed his or her statements to be untrue, the law imposes no liability. That is a policy choice that might deserve reexamination by the appropriate decision makers—the United States Supreme Court and the Colorado courts. As [this] Court noted in the Trump Media & Tech. Group Corp. v. WP Co. LLC (M.D. Fla. 2026) case, the actual malice standard has been criticized by courts and commentators on a number of grounds, with which [this] Court largely agrees.

In short, if the law did not require "clear and convincing evidence" that the defendant subjectively doubted or disbelieved the published statements, it is likely that Byrne's motion for summary judgment would have been denied, and a jury would have had the opportunity to weigh in on this matter. However, under the law as it currently stands, Coomer's evidence is insufficient to meet these standards and summary judgment for Byrne is therefore required….

Peter Ticktin and David Lawrence Perry II (The Ticktin Law Group) represent Byrne.

The post Eric Coomer (of Dominion Voting) Loses Libel Lawsuit over <i>The Deep Rig</i> appeared first on Reason Magazine.