On June 8, 2021, the State filed a complaint against Google out of a concern that Google prioritized the information it provided that best boosted its bottom line instead of providing the most useful and relevant information to the public…. [It] sought a declaration that Google was a … common carrier under Ohio common law….

The court concluded:

Google Search is not a common carrier under Ohio common law. It fails under either prong of our traditional test. While the Attorney General points to facts such as monopoly power and suggests a more robust judicial intervention is required, we decline to depart from our precedent. Among other reasons, the apparent preemption and free speech issues, together with the expressive character of search outputs under the Munn framework, counsel against departing from our traditional two-prong test.

This conclusion is consistent with the historical limits of the common carrier doctrine, the practical mismatch between traditional rate regulation and modern platform economics, and the judiciary's proper role in deferring complex policy choices involving speech and technology to the legislative branch….

The court began with a broad historical outline; an excerpt:

The common carrier doctrine is one of the oldest bodies of Anglo-American law. Its roots lie in medieval English "public callings" i.e., occupations whose very nature required service to all members of the public without discrimination. The first reported case involved a ferryman in 1348. By the seventeenth century, the obligation extended to innkeepers, farriers, and carriers….

In Munn v. Illinois (1876), the Supreme Court upheld an Illinois statute fixing maximum rates for grain storage in Chicago warehouses, holding that when private property is devoted to a use in which the public has an interest, the owner may be forced to submit to regulation. The Court rejected the argument that such regulation violated the Fourteenth Amendment's Due Process Clause, affirming the state's broad police power to regulate businesses "affected with a public interest." … "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large." … "Common carriers exercise a sort of public office, and have duties to perform in which the public is interested." …

The Court went on to conclude that since every bushel of grain "pays a toll" that is a common charge, then it ought to be subject to public regulation that only a reasonable toll is to be extracted.  Although the legislature intervened rather than the judiciary, the Court found that to be without consequence; the doctrine applied the same….

Thus, after Munn, the doctrine had both established its constitutional blessing and had arguably expanded its reach, allowing for more legislative intervention. As this doctrine was applied in a myriad of contexts and to emerging technologies, the principle of non-discrimination emerged as a frequent judicial explanation for intervention; these courts usually held that common carriers must "serve the public without partiality and without unreasonable discrimination." But it is fair to say that legislation intervention has become more common.

As new technologies and market conditions emerged, the doctrine adapted, primarily through legislative action. Railroads prompted the Interstate Commerce Act of 1887; telegraph and telephone companies were regulated under the Mann-Elkins Act of 1910 and the Communications Act of 1934 (Title II). Consumer protection concerns, particularly the need to curb monopoly power and combination that drove rates to excessive levels, supplied an important justification for rate regulation.

It then laid out and applied the Ohio law of common carriers:

Ohio's common law definition of a common carrier is well-established. A common carrier is one who, as a regular business, undertakes for hire to transport persons or property from place to place and holds itself out to the public as ready and willing to serve all members of the public indifferently.

Two distinct elements must be satisfied: (1) the carrier element - actual transportation of the property (or persons) of others; and (2) the common element - holding out to serve the public indiscriminately….

[A.] Google Does Not "Transport" the Property of Others (The Carrier Prong)

Typically, when we are considering the carrier prong, we are asked to review the transportation of property or people. That is not the case here. As discussed in several of the cases cited above, a carrier handles the property akin to a bailment. It is simply moving it from one place to another. At its most general, the core concern of this prong is receiving the property of another and returning it unaltered after transporting it or transporting a person from one point to another.

Based on the facts before us, we conclude that Google does not transport the unaltered property of others. It affirmatively creates a new expressive product, the SRP, through discretionary crawling, indexing, ranking, filtering, and formatting. This is curation and synthesis, not carriage. The trial court correctly rejected the State's attempt to treat underlying "information" as the transported property. See Richards v. Google LLC (W.D.Va. 2026); Zhang v. Baidu.Com Inc. (S.D.N.Y. 2014).

The State's analogy to telephone service breaks down when one examines the actual flow of data. A user sends a query to Google; that query is a simple request consisting of the user's own words or terms. Even assuming arguendo that Google has some common law duty to transmit the incoming query fairly and unaltered, the State's complaint centers on the return leg - the SRP Google delivers back to the user.

That return data is not the user's property, nor is it third-party content transmitted unaltered. Google receives the query, consults its own proprietary indices, applies its own ranking algorithms, makes relevance and quality judgments, filters results, and assembles a new, curated response that did not previously exist in that form. The SRP is Google's own expressive product, not the user's or any third party's property being carried back unaltered. Traditional common carriers do not create the cargo they transport; they accept the shipper's or speaker's existing goods or message and deliver them substantially as received. Google does neither on the return leg. {Google fails the carrier prong on the undisputed facts.}

We acknowledge the test announced in Munn [as to legislative regulation] is plainly broader than how Ohio courts have looked at the question of judicially regulating a common carrier…. But here there is … [no] statute for us to consider …. Moreover, we observe that the Ninth Circuit questioned the application of the common carrier doctrine to Google Gmail, which appears to function more like a common carrier than Google's search function….

[B.] Google Does Not Hold Itself Out to Serve the Public Indifferently (The Common Prong)

Perhaps the most defining characteristic of common carrier status, in all its forms, has been the obligation to serve the public without unjust discrimination, or stated in the affirmative: to provide the service on indifferent terms. Historically, the primary remedy associated with this obligation was judicial or regulatory oversight to ensure that rates were reasonable, properly differentiated according to cost and competitive conditions, and free from unjust or arbitrary discrimination. We turn now to that consideration.

Google's pervasive presence in modern life is undeniable. For many Ohioans, Google Search is the de facto gateway to information. Even assuming for the sake of argument that Google's Terms of Service would not, by themselves, justify refusing certain user inputs (queries), the Attorney General's concern lies primarily with outputs - the ranking, presentation, and curation of search results.

At this point the common carrier doctrine encounters a fundamental mismatch. Traditional common carrier regulation centers on the relationship between price and service. Courts and regulators assess whether rates are just and reasonable.

Google, however, provides its core search service to users at no direct charge. Its revenue comes overwhelmingly from advertising, not from the users whose results the State seeks to regulate. There is no traditional "rate" for the court to review or adjust. Scholarship in this area often concludes classic common carrier rate regulation is poorly suited to two-sided, zero-price-to-user, innovation-driven markets; any nondiscrimination obligation imposed here would necessarily target the content and ordering of outputs rather than prices, raising a distinct and more constitutionally sensitive set of issues.

Thus, even if one were to accept the State's position that Google qualifies as a common carrier, fashioning an appropriate remedy would take this Court far outside the traditional judicial role in common carrier cases. The common law of common carriers does not supply a ready template for regulating the editorial output of a free service whose business model does not depend on user payments. The trial court concluded correctly that Google does not hold itself out to serve the public indifferently in the sense required by the common carrier doctrine.

[C.] Ubiquity, Monopoly Power, and the "Affected with a Public Interest" Doctrine

The State argues that Google's search engine has become so ubiquitous and central to modern life that its business is "affected with a public interest" in the sense articulated by Lord Chief Justice Hale and the Supreme Court in Munn. There is no question that Google Search exerts enormous influence over the flow of information. Consumer protection and monopoly concerns have historically justified regulation of true common carriers.

However, the "affected with a public interest" principle supplies a constitutional justification for legislation and regulation; it does not dispense with the common carrier doctrine's two core requirements for judicial intervention….

The essence of the judiciary is to resolve disputes between the parties and not to engage in extensive, top-level policy making that the legislative branch is better equipped to handle…. [U]biquity and market share do not justify novel judicial intervention here. Munn supplied a constitutional justification for legislative intervention in a natural-monopoly setting; it did not authorize courts to judicially impose common carrier status on new technologies whose core function is editorial curation rather than neutral transport….

The court also suggested that any common carrier finding might be federally preempted, because "Congress and the FCC have long distinguished 'information services' (a category that includes search engines) from traditional telecommunications services subject to common carrier regulation." And it noted that any common carrier conclusion might violate the First Amendment:

[T]he core concern underlying this litigation is the regulation of Google's editorial judgments in curating, ranking, and presenting information. This is, at bottom, an attempt to regulate speech.

We do not discount the legitimate policy concerns that animate the State's position. Google's dominant market position gives it outsized influence over the modern public square. Congressional investigations and disclosures regarding government-platform communications have raised serious questions about content moderation practices, viewpoint discrimination, and the influence of dominant technology platforms. These issues may indeed support a compelling governmental interest in narrowly tailored legislation designed to promote transparency or address demonstrable harms.

But the ancient common carrier doctrine is not the proper vehicle for addressing these concerns. Imposing common carrier obligations on Google's search functions would necessarily compel the company to carry, rank, or display speech it would otherwise choose to de-emphasize or exclude — precisely the type of editorial discretion the First Amendment protects when exercised by private entities compiling and presenting third-party speech…

Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it. Because Google's search results are its own expressive product rather than neutral carriage, the common carrier doctrine does not fit this business model. Any broader regulatory response belongs to the legislative branch….

Michael R. Gladman, Justin E. Herdman, Molly M. Dengler, John E. Schmidtlein, Kenneth C. Smurzynski, and Gloria K. Maier represent Google.

Note that Don Falk and I argued in a 2012 paper commissioned by Google that Google indeed has a First Amendment right to pick and choose what goes in search results; that article was cited in Zhang v. Baidu.com, which the Ohio court cited in turn.

The post Google Isn't a Common Carrier, Ohio Court of Appeals Rules appeared first on Reason.com.

Plaintiff John Doe—an accountant facing disciplinary proceedings before the Public Company Accounting Oversight Board—brought suit in district court, raising wide-ranging challenges to the Board's structure and operations. As part of that action, Doe sought leave to proceed under a pseudonym. The district court denied the motion. We affirm….

Doe asserts a privacy interest in the fact that he is the subject of a Board disciplinary proceeding because disclosure of that fact would harm his professional reputation by "brand[ing] him an outlier—'damaged goods'—among accounting professionals." Doe's privacy concerns are different in kind from those that "traditionally warrant pseudonymity," which typically involve " 'intimate issues such as sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors.'" …

[And, a]s the district court explained, Doe relied only on general statements about the potential harms of public charges, and he did not submit any declarations to support those claims. The district court's approach is consistent with our precedents, which underscore that movants must make a "colorable showing of injury to a privacy interest" by offering something "concrete to establish that revealing [their] identity would cause" some "cognizable harm." That showing could take the form, for instance, of a declaration explaining the "substantial risk" that a "privacy injury" "would occur." The district court reasonably concluded that Doe's motion was insufficient on this front, as Doe "merely asserted" he would suffer a privacy injury without "specifically explain[ing] why harm was likely to result." …

[Courts should also] "look[] to the identity of the opposing party"—whether the defendant is a private or governmental actor—"as a tool for measuring the public interest in transparent litigation." Both sides agree that the Board should be considered a governmental actor for purposes of the pseudonymity analysis, and the district court in turn found this factor to cut against Doe because the presence of a governmental defendant "favor[s] pseudonymity only when plaintiffs request individualized relief." Doe contends that he seeks only "modest, individualized, and self-protective relief" because he requests an injunction preventing the Board from proceeding against him.

The district court correctly explained, however, that Doe's arguments would clearly apply beyond this case: Doe raises sweeping challenges to the Board's operations and existence that are "not grounded in his specific circumstances." … [P]seudonymity is less likely to be appropriate where "the party asking to proceed anonymously seeks to alter the operation of public law both as applied to it and, by virtue of the legal arguments presented, to other parties going forward." …

{Doe argues that pseudonymity is proper because disclosure of his identity could "chill or discourage people from exercising their core First Amendment rights" to challenge government actions in court. The district court reasonably rejected that argument, as it would "make just about any plaintiff entitled to pseudonym status." We have similarly not been swayed by suggestions that the fourth factor should favor pseudonymity where disclosure could "chill litigants from suing the government for constitutional violations."} …

Next, Doe argues that the district court erred in declining to weigh his likelihood of success on the merits in the pseudonymity analysis…. [But o]ur published opinions on the subject have never suggested that merits questions are relevant to the pseudonymity issue. Privacy concerns—not the underlying merits—drive the pseudonymity analysis, and requiring courts to delve into the merits to resolve a pseudonymity motion would be exceedingly burdensome….

Finally, Doe points to provisions of the Board's organic statute that, in his view, guarantee the confidentiality of Board investigations and disciplinary proceedings. On Doe's theory, those provisions "weigh heavily in favor" of pseudonymity because they reflect a congressional judgment that the subjects of Board adjudications face "irreparable reputational and career damage" if their identities are publicly disclosed. See Doe v. MIT (1st Cir. 2022) (observing that pseudonymity is "ordinarily" appropriate in "suits that are bound up with a prior proceeding made confidential by law").

Several provisions of 15 U.S.C. § 7215—which governs Board investigations and adjudications—address confidentiality. Section 7215(c)(2) provides that "[h]earings under this section shall not be public, unless otherwise ordered by the Board for good cause shown, with the consent of the parties to such hearing." Section 7215(b)(5)(A) further directs that

all documents and information prepared or received by or specifically for the Board, and deliberations of the Board and its employees and agents, in connection with … an investigation under this section, shall be confidential and privileged as an evidentiary matter (and shall not be subject to civil discovery or other legal process) in any proceeding in any Federal or State court or administrative agency, and shall be exempt from disclosure, in the hands of an agency or establishment of the Federal Government, under [FOIA], or otherwise, unless and until presented in connection with a public proceeding or released in accordance with subsection (c).

Last, Section 7215(d)(1) explains that if the Board "imposes a disciplinary sanction," it "shall report the sanction to" "the public." {If the target of a Board proceeding seeks SEC review, the sanction is automatically stayed, so there is no public disclosure of the sanction unless and until the SEC affirms the Board's decision.}

We conclude, however, that these provisions do not cover the identities of subjects of Board proceedings but instead the documents and information generated in the Board's investigations and the contents of Board hearings. As noted, Section 7215(c)(2) makes Board "[h]earings" presumptively confidential, while Section 7215(b)(5)(A) extends confidentiality protections to certain "documents and information." It is hardly natural to regard a person's name and the fact of a Board proceeding against him as "documents and information prepared or received by or specifically for the Board." And although in the abstract a name might fall within the "dictionary definition" of "information," "the context"—Section 7215(b)(5)(A)'s focus on information "prepared or received by" the Board "in connection with … an investigation"—"tugs strongly in favor of a narrower reading."

The title of Section 7215(b)(5)—"Use of documents"—also fits that narrower reading. And our conclusion is reinforced by the contrast between Section 7215(b)(5)(A) and other statutory confidentiality protections—such as those in the SEC whistleblower scheme, which Doe suggests is analogous—that explicitly refer to protecting individual identities. See 15 U.S.C. § 78u-6(h)(2)(A) (providing that "the Commission shall not disclose any information … which could reasonably be expected to reveal the identity of a whistleblower"). The text and context of Section 7215 thus demonstrate that parties like Doe do not enjoy a statutory right to pseudonymity….

Jeffrey A. Lamken and Robert K. Kry (MoloLamken LLP) and Donald B. Verrilli, Jr., Elaine J. Goldenberg, Ginger D. Anders, and Rachel G. Miller-Ziegler (Munger, Tolles & Olson LLP) represent PCAOB.

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Defendants Gray Local Media, Inc. and Gray Media, Inc., (together, "WBTV") accurately reported on Dr. Sunar's arrest and then, at the request (and with the approval) of his lawyer, on the dismissal and expungement. WBTV declined, however, to delete its reporting, preserving the historical record.

Claiming that he has been defamed by WBTV's coverage, Dr. Sunar filed this action seeking tens of millions of dollars in damages and removal of the WBTV articles from its archives…. While Dr. Sunar's desire to undo the past is understandable, his legal claims against WBTV fail … because the articles are indisputably truthful and well within the long-established privilege of the media to accurately report on criminal proceedings…..

On September 11, 2024, Dr. Sunar, who has been practicing dentistry in Charlotte since 2002, was arrested and charged with misdemeanor child abuse and communicating threats. The next day, WBTV published an article to its website regarding the arrest titled "Charlotte dentist charged with child abuse, records show." In relevant part, the text of the article read:

A Charlotte dentist is facing child abuse charges after he was arrested last week, court records show. Jail records revealed 61-year-old Ramesh Kumar Sunar was arrested on Tuesday, Sept. 10, and was charged with misdemeanor child abuse and communicating threats. An arrest warrant said Sunar 'inflicted physical injury' on a child younger than 16 years old. The injury allegedly caused bruising on the child's torso and neck, and was not caused by 'accidental means.' The warrant further stated that Sunar told a man 'he would beat the [expletive] out of him.' According to the warrant, both incidents happened on Sept. 2…. Sunar is listed as the lead doctor on Charlotte Dental Implant Center's website.

WBTV also aired a broadcast about the arrest, which included similar information and Dr. Sunar's mugshot. Dr. Sunar's mugshot was also posted on WBTV's social media pages alongside a link to the First Report. Dr. Sunar acknowledges that the First Report was accurate at the time of publication.

Over a year later, in October 2025, Dr. Sunar's attorney notified WBTV that the charges had been dismissed and expunged from Sunar's record. Counsel requested that either a) the First Report be removed or b) that an addendum be posted disclosing the dismissal and expungement of the charges. WBTV responded that it could "offer [Dr. Sunar] a new article that states the outcome of the case," but that they would not remove or otherwise alter the original post due to its accuracy. Dr. Sunar's attorney's response to WBTV's offer was "Yes please."

On November 11, 2025, WBTV published the requested second article with the title "Charges dropped against Charlotte dentist accused of child abuse in 2024," and the subheading "Charges expunged in October 2025, officials confirm." The Second Report summarized Dr. Sunar's charges and confirmed that the charges had "been expunged on Oct. 10, 2025," explaining that the expungement of Dr. Sunar's charges meant he "was cleared of the charges, and they were dropped from his public record entirely." WBTV provided Dr. Sunar's attorney with a link to the Second Report. Dr. Sunar's attorney replied, "Thank you!"

Nonetheless, the following month Sunar sued for defamation and related claims. The court held that any claims arising from the First Report and related social media posts were barred by North Carolina's one-year statute of limitations in defamation claims. As to the Second Report, the court held,

Dr. Sunar does not contend, nor could he, that any statement in the Second Report is inaccurate. Moreover, the substance of the report is not even defamatory, stating that Dr. Sunar had been cleared of the charges against him and his public record expunged. And finally, the Second Report was prepared at the request of Dr. Sunar's attorney, who responded positively to its publication. In other words, Dr. Sunar seeks to recover on a defamation claim for a truthful publication put out at his request. The law cannot support such a result.

{Also, the media's fair report privilege would support dismissal of Dr. Sunar's defamation claim. The privilege flows from "the absolute privilege which attaches to statements made in the due course of a judicial proceeding." Thus, with respect to reporting on Court proceedings, "[p]laintiff must prove by the greater weight of the evidence that the statement was materially false. If a statement is substantially true, it is not materially false. It is not required that the statement was literally true in every respect. Slight inaccuracies of expression are immaterial provided that the statement was substantially true." Again, here there is no claim of falsity.}

The post "Desire to Undo the Past" Can't Justify Libel Claim Over "Indisputably Truthful" Articles About Criminal Charges + Expungement appeared first on Reason.com.

Al Ghashiyah is the only brother of James C. Charles Casteel. Casteel died in October 2024. Thomas Oster, a longtime friend of Casteel, filed a petition for the formal administration of Casteel's estate and filed Casteel's will with the circuit court.

Casteel's will bequeaths the contents of his estate to certain friends and family members. The will does not bequeath any of Casteel's estate to al Ghashiyah. Al Ghashiyah filed a motion requesting that the court apply Islamic law to the administration of the estate. Al Ghashiyah asserted that, under Islamic law, Casteel's estate must be distributed among Casteel's surviving siblings, with any surviving male siblings receiving twice the share of any surviving female siblings.

At an evidentiary hearing on Oster's petition and al Ghashiyah's motion, al Ghashiyah confirmed that his motion was a request that the circuit court apply Islamic law instead of the laws of the State of Wisconsin, and instead of following Casteel's will. Al Ghashiyah testified that, with his brother's death, al Ghashiyah became the head of the Casteel family, and as head of the family, he has decided that Islamic law is the law that applies to the family.

Al Ghashiyah also testified that he and Casteel did not discuss whether or not Casteel's property should be distributed according to Islamic law, and that, to al Ghashiyah's knowledge, Casteel did not practice the Islamic faith. The court denied al Ghashiyah's motion requesting that the court apply Islamic law….

Al Ghashiyah … argues that the circuit court's denial of his motion to apply Islamic law is discriminatory and violates fundamental rights protected under the "Universal Declaration of Human Rights." … [A]l Ghashiyah does not develop this argument with citation to relevant legal authority that illustrates court error. Rather, al Ghashiyah asserts that "human rights principles are universally applicable" and cites to Presbyterian Church of Sudan v. Talisman Energy, Inc. (S.D.N.Y. 2003) in support of that assertion.

However, in that case, current and former residents of the Republic of Sudan brought suit alleging that an oil company in that country committed "gross human rights violations, including extrajudicial killing, forcible displacement, war crimes, confiscation and destruction of property, kidnapping, rape, and enslavement." Al Ghashiyah does not explain how the Presbyterian Church of Sudan case supports his argument that the court here violated al Ghashiyah's rights when it declined to apply Islamic law to the administration of the estate of Casteel, who the court found expressed no desire that Islamic law should apply.

In his reply brief, al Ghashiyah asserts that courts "routinely consider religious doctrine in … cases where relevant and voluntarily invoked by the parties." He also states that the U.S. Supreme Court has recognized the right of religious communities to arrange their affairs in accordance with their beliefs.

It may be true that in certain circumstances courts may apply and consider international or human rights law, and the rights of religious communities. However, al Ghashiyah does not develop an argument as to how his right to practice Islamic law is relevant to the administration of Casteel's estate, he does not assert any evidence that Casteel invoked Islamic law, and he does not explain his conclusion that the court should recognize the religious beliefs of al Ghashiyah in deciding Casteel's will.

Rather, al Ghashiyah's argument amounts to the conclusory assertion that, because he asked the court to follow Islamic law, it was discrimination and a human rights violation for the court to decline the request. We do not further address this argument as it is undeveloped….

The post "Al Ghashiyah Testified That … as Head of the Family, He Has Decided that Islamic Law Is the Law that Applies to the Family" appeared first on Reason.com.

Shanks was an archaeologist employed at the National Park Service. His supervisor {Mr. Russo}, also an archaeologist, … and Mr. Shanks were the subject of an inspector general's investigation …. After an investigation, the inspector general issued a report that included the following facts, which are largely undisputed.

A collector approached Mr. Russo with an offer to sell the Park Service items retrieved from burial mounds on Tyndall Air Force Base. The report refers to these as potsherds, defined as pottery fragments found at archaeological sites. Items placed with human remains as part of a death rite are known as funerary objects.

Mr. Russo concluded the Park Service could not purchase the collector's items because if, as the collector said, they had been obtained at Tyndall, they would be considered funerary objects, whose purchase would be illegal. For convenience, this order sometimes refers to these items as potsherds, not funerary objects, without noting each time any uncertainty about their actual nature.

To avoid the perceived legal obstacle to purchasing these items, Mr. Russo enlisted a straw purchaser, who provided Mr. Russo a $1,000 check payable to the collector. Mr. Russo apparently intended to obtain the items to donate them to the State of Florida for preservation. Mr. Russo, accompanied by his subordinate Mr. Shanks, traveled to the collector's location, delivered the check to the collector, and took possession of the items, together with two Native American skulls. The skulls found their way to the State of Florida, which, at the time of the inspector general's report, was in the process of repatriating them. But the potsherds wound up on a shelf in Mr. Russo's office.

The inspector general concluded Mr. Russo's and Mr. Shanks's actions did not violate the most closely implicated federal criminal statute, 18 U.S.C. § 1170, which is entitled "Illegal trafficking in Native American human remains and cultural items."

Under § 1170(a), it is a crime to sell or purchase Native American human remains or to use or transport them "for sale or profit." Mr. Russo apparently purchased only the potsherds, not the skulls, and the skulls were not used or transported for sale or profit. On those facts, there was no violation of this statute.

Under § 1170(b), it is a crime to sell or purchase Native American cultural objects "obtained in violation of the Native American Grave Protection and Repatriation Act" or to use or transport such objects "for sale or profit." Mr. Russo purchased the potsherds—the straw buyer does not change this—but the inspector general was unable to establish that the collector obtained the potsherds after NAGPRA's 1990 enactment. If the collector obtained them earlier, there was no violation of § 1170(b).

Moreover, the collector purportedly had a permit to excavate at Tyndall, and while the absence of a record at Tyndall verifying this would ordinarily refute the claim, many of Tyndall's records were destroyed in Hurricane Michael. If the collector legally obtained the items, even after NAGPRA's enactment, their purchase by Mr. Russo was not a violation of § 1170(b). And in any event, the inspector general's report directly implicated only Mr. Russo, not Mr. Shanks, in purchasing the items. Neither Mr. Russo nor Mr. Shanks used or transported the objects for sale or profit….

[Defendant] Ms. Schwadron … is an archaeologist who worked for the National Parks Service and may have provided the information that triggered the inspector general's investigation. The second defendant, Public Employees for Environmental Responsibility ("PEER"), is a nonprofit corporation that, according to the complaint, "supports current and former public employees who seek a higher standard of environmental ethics and scientific integrity within their agencies … by defending whistleblowers, shining the light on improper or illegal government actions, working to improve laws and regulations, and supporting the work of other organizations." …

Shanks alleged that defendants stated that he "trafficked stolen Native American human remains" and implied that he "committed criminal acts involving Native American human remains." …

Shanks also claims:

Plaintiff has suffered damages as a result of Defendants' actions including, but not limited to: (a) Loss of a sixteen-year federal career, including pension and benefits, valued at approximately $2 million. (b) Loss of a university press book contract when other contributors pulled out of the project due to defamatory statements from Defendant SCHWADRON. (c) Removal from professional panels and working groups, causing reputational harm and lost opportunities. (d) Severe emotional distress and humiliation.

The court allowed Shanks' claim to go forward:

The critical question … [is] whether the defendants' allegedly false statement that he trafficked stolen Native American human remains, or a collection of statements that in context imply he did so, could be found to be defamatory. "Trafficking" can be defined as "[t]he act of transporting, trading, or dealing, esp. in illegal goods or people." But a law enforcement officer does not traffic in drugs when seizing them for legitimate purposes, and a federal archaeologist does not traffic in human remains when obtaining them by proper means to have them repatriated.

It is not clear the means used here were proper, and the defendants had every right to criticize the process. That does not mean, however, that the defendants were entitled to accuse Mr. Shanks of trafficking in "stolen" human remains. Even if acquiring the remains in connection with a straw purchase of the potsherds could be labeled trafficking, and even if Mr. Shanks could be deemed a participant in that trafficking, the assertion that the remains were "stolen" adds a defamatory element.

Mr. Russo acquired the remains from a collector—PEER called him a "known looter"—and delivered them free of charge to the State of Florida for repatriation. Without more, that falls well short of trafficking in stolen human remains. {[And] Florida's fair-report privilege does not apply if, as the complaint alleges, the defendants' statements were not a fair description of the inspector general's report.} …

The court noted, though, that another of PEER's statements mentioned in the Complaint, "the reference to 'blatant desecrations,'" "was a nonactionable opinion."

Jamie Marie Ito (Ito Law PLLC) represents Shanks.

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