Plaintiffs' Complaint contains very few allegations involving Plaintiffs themselves; largely, the Complaint references alleged harms to "mainland China" and Chinese people generally. There are only six paragraphs in which Plaintiffs identify harm they have suffered. Each are discussed below.

Paragraph 71 alleges that "defendants deliberately fabricated or spread false information and spread lies that slander and demonise China and the Chinese people, The plaintiff is also deeply harmed by this." This appears to be more of a "wrong suffered by the public at large," rather than an actual harm to Plaintiff. This is especially true where Plaintiffs have not identified how they have been demonized, or how the slander has personally caused harm to them. This is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 92 alleges that the defendant "made false statements that were believed by some Chinese children in the USA, causing them serious emotional distress and undermining their connection to their Chinese heritage. The plaintiffs encountered this problem."

Here again, Plaintiffs' pleading appears to implicate the Chinese public at large, and does not identify how they specifically were impacted. Plaintiffs do not identify the concrete harm they suffered, as they are not children nor do they appear to believe the alleged false statements made by Defendant, so this is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 96 alleges that Plaintiffs' reputations were directly harmed by "defendant's claim that alleged crimes of human rights violations, crimes against humanity, genocide, and forced labor against Uyghur and other ethnic minorities…" were being committed in Xinjiang. The Court fails to see how Plaintiffs' reputations were in-fact harmed, nor have Plaintiffs provided any additional allegations or evidence in support of this assertion. This is not an injury sufficient to satisfy the requirements of standing under Article III.

Paragraph 99 alleges that because of Defendant's amicus brief filed in the Court of Argentina, "plaintiffs becomes[sic] a victim of these false accusations, Social reputation is damaged, feeling angry and painful, Teaching children about racial identity becomes a problem. In the interest of truth and justice, our lawsuit is primarily for ourselves and also represents all Chinese Americans and mainland Chinese compatriots."

First, much like the other allegations in their Complaint, this appears focused on the alleged harms suffered by Chinese people generally, not Plaintiffs. Second, Plaintiffs provide no evidence or further allegations supporting their assertion that they themselves have suffered false accusations and that their social reputations have been harmed. The same is true of paragraph 107, alleging that Plaintiffs' reputations have been damaged. For these reasons, these also are not injuries sufficient to satisfy the requirements of standing under Article III.

Brian E Casey (Barnes & Thornburg LLP) represents the University.

The post Plaintiffs Lack Standing to Sue over Notre Dame Law Clinic's Filing Amicus Brief Condemning China's Actions Towards Uyghurs appeared first on Reason.com.

The post Today in Supreme Court History: June 5, 1916 appeared first on Reason.com.

As I've blogged about previously, recall that Judge Newman has challenged her suspension from new case assignments. (Fellow bloggers Josh Blackman and Jonathan Adler have also followed the case closely.) But in the latest ruling, the D.C. Circuit held that the Judicial Council's Reform and Judicial Conduct and Disability Act of 1980 blocks any review of the lawfulness of this suspension.

In March, Judge Newman filed a cert petition presenting the important constitutional question of whether she is entitled to her day in court to challenge the lengthy suspension, which has no end in sight. Her petition begins with this powerful introduction:

This petition presents questions concerning crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the federal judiciary and every litigant who appears before them. For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its "Great Dissenter") from the bench.

The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 ("the Disability Act") bars review of the unlawful actions taken against Judge Pauline Newman. This administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues, with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.

Judge Newman has continued to speak and write before the legal community, and no finding of disability has been made concerning her in the years since the unlawful administrative orders began. She voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger. She now has been suspended longer than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation are unprecedented.

Since then, significant amicus briefs have been filed supporting Judge Newman. Last month, I filed one such supporting amicus brief, joined by former federal judges Janice Roger Brown, Paul R. Michel, Kent A. Jordan, Randall R. Rader, Thomas I. Vanaski, and Susan G Braden.  Our brief argues that federal courts must be able to review constitutional claims of the type presented by Judge Newman:

In its decision below, the D.C. Circuit reaffirmed a 25-year-old precedent that prevents federal judges from seeking federal-court redress from Judicial Council actions that de  facto remove them from the federal bench. That bar applies without regard to whether—as alleged here—the Judicial Council has acted in violation of the judge's rights under the U.S. Constitution. Particularly in light of the threat to judicial independence posed by the many recent attacks on the authority of federal judges, the Court should grant review to reaffirm the authority of federal courts to intervene to hear claims raising constitutional claims of the sort at issue here.

Another supporting brief came from the District of Columbia Bar Association. Its brief  highlights the importance of Judge Newman's independent voice on the Federal Circuit:

The involuntary and indefinite suspension of Judge Newman from all judicial duties is an impeachment and deprives our legal community of an experienced and fiercely independent voice in the ongoing weaving of the tapestry of caselaw at the Federal Circuit. This ongoing suspension circumvents our Constitution because Judge Newman can only be impeached by Congress. See U.S. Const. art. II, § 4.

University of Houston law professor Andrew Michaels, a former law clerk to Judge Newman (2010 to 2012), also supports review in a strong amicus brief.  He explains why Judge Newman's allegedly "temporary" suspension is tantament to impeachment:

The Judicial Conduct and Disability Act of 1980 expressly prohibits permanent removal.2 Administrative tribunals should not be permitted to circumvent this prohibition (as well as constitutional guarantees) merely by characterizing the removal as an indefinite series of consecutive "temporary" suspensions. Judge Newman has now been "suspended" for over three years, and counting.

The Buckeye Institute, the Manhattan Institute, and the Committee for Justice also filed a supporting amicus brief, asking the Supreme Court to review the foundational principles at issue in the case:

This de facto impeachment circumvents the Constitution's structural safeguards. Impeachment requires bicameral action, supermajority agreement in the Senate, and  public, deliberative proceedings. These protections reflect the Framers' judgment that  removing a federal judge demands broad political accountability and careful deliberation.  The Federal Circuit's unilateral action evades those safeguards entirely, consolidating investigative, prosecutorial, and adjudicative functions within the judiciary itself.

Some of Judge Newman's former law clerks also filed to support her, arguing that she deserves a day in court:

Without judicial review of her suspension, Judge Newman is in limbo. To safeguard judicial independence and to provide due process, Judge Newman is entitled to meaningful review of her constitutional claims.

The sole brief opposing review came from the Federal Circuit's Chief Judge, Kimberly A. Moore, and was filed by the Solicitor General.  The SG's brief raises largely technical jurisdictional arguments, rather than disputing the merits of Judge Newman's claims. The brief argues:

[Judge Newman's] contentions lack merit and implicate no circuit split. As the courts below correctly held, Congress directed challenges to judicial-council orders to the Article III judges serving on the Judicial Conference, not to federal district courts. That sensible policy decision ensures a mechanism for reviewing allegations of judicial misconduct or incapacity that comports with separationof-powers considerations, offers multiple layers of review, and prevents overburdening federal courts with complaints about judicial-council decisions. And petitioner identifies no plausible conflict among the circuit courts warranting this Court's review.

Understandably, the SG's brief makes no attempt to discuss Judge Moore's bizarre AI cartoon about the Federal Circuit -- a cartoon that glaringly removed Judge Newman from her position on the court, as Josh Blackman discussed in detail here.

Yesterday, Judge Newman replied to Judge Moore's legal arguments. Thus, the briefing is complete on the cert petion. The Court is scheduled to consider the petition at its June 11 conference. That means we may hear as soon as Monday, June 15, whether the Court has agreed to hear Judge Newman's important petition.

I hope that the Supreme Court takes this case. The "stealth impeachment" launched against Judge Newman obviously has the potential to threaten judicial indpendent in many ways. The Supreme Court should speak definitively about whether this end-run around the Constitution's impeachment process is permitted.

Update: I corrected a few small typos in the original post.

The post Will the Supreme Court Review Judge Newman's Stealth Impeachment? appeared first on Reason.com.

The Southern Poverty Law Center's ("SPLC") stated mission included the dismantling of white supremacy and confronting hate across the country. However, unbeknownst to donors, some of their donated money was being used to fund the leaders and organizers of racist groups, including the Ku Klux Klan, the Aryan Nation, and the National Alliance. The SPLC's paid informants ("field sources") engaged in the active promotion of racist groups at the same time that the SPLC was denouncing the same groups on its website….

[T]he SPLC explicitly sought donations under the auspices that donor money would be used to help "dismantle" violent extremist groups. In the SPLC's solicitations for donations as outlined herein, donors were not told that some of the donated funds were to be used by the SPLC to pay high-level leaders of violent extremist groups and others, nor were donors ever told that some of the donated funds were used for the benefit of the violent extremist groups or that some of the donated funds would be used in the commission of state and federal crimes.

Tuesday's Superseding Indictment offers some more detail about the allegations, among other things elaborating on the activities of one of the people working for it (labeled F-30, with "F" being the SPLC term for "field source") and adding information about two others (F-31 and F-32):

F-30 led the National Socialist Party of America, was a member of the Ku Klux Klan, and was the leader of a faction of the Aryan Nations that had chapters in approximately 17 states.

In approximately 2010, out of money and seeking to get out of the white nationalist movement ("the movement"), F-30 reached out to the SPLC, unsolicited, and discussed a plan to leave the movement. Thereafter, the SPLC employee offered F-30 a monthly salary of approximately $2,500.00 in addition to payment of expenses to continue to lead and maintain the violent extremist organization F-30 told the SPLC employee he wanted to leave….

From approximately 2010 through 2016, the SPLC secretly moved over $70,000.00 in donors' money from the SPLC operating account … onto F-30's pay card…. F-30 used donors' money to, among other things, travel to extremist rallies, host extremist rallies, donate money to leaders of other extremist organizations, recruit new members into his extremist organization, publish racist and extremist material for the purpose of recruiting new members, both inside and outside of prison, and create racist paraphernalia to sell at rallies to raise more money for his extremist organization. This was known to certain SPLC employees as they continued to secretly funnel donors' money to F-30.

During the same period that SPLC was secretly using donors' money to fund F-30's extremist activities, the SPLC had an entire "Extremist File" webpage dedicated to F-30. The SPLC used this "Extremist File" webpage to solicit more public donations. At one point F-30 asked an SPLC employee to soften the language about him on his "Extremist File" webpage so that it would not scare off new members from joining his extremist organization. The SPLC employee agreed and changed the language on the SPLC's "Extremist Files" webpage for F-30….

F-31 and F-32 were members of a Ku Klux Klan organization in their area. In or about 2010, F-31 and F-32 feared for their safety from other Klan members and wanted out of the movement. F-32 had seen media coverage about how the SPLC helped an individual leave an extremist organization and how the SPLC paid for this individual's tattoo removals. This media coverage prompted F-32 to reach out to the SPLC, unsolicited, and ask the SPLC for help to get F-31 and F-32 out of the movement.

An SPLC employee invited F-31 and F-32 to Montgomery for a meeting. There, despite their requests for help getting out of the movement, an SPLC employee encouraged F-31 and F-32 to stay in the movement and offered to pay them a $1,200.00 monthly salary as well as to pay for expenses as incurred. Once they were financially backed by the SPLC to do so, F-31 and F-32 agreed to remain in the movement….

Using donors' money, F-31 and F-32 attended extremist group rallies in multiple states. This led to F-31 rising from merely a group member to a leadership role within an extremist group. In the new leadership role, F-31 actively recruited new members using donors' money.

F-32 also participated in recruiting new members using donors' money. In addition, an SPLC employee knew that F-32 used donors' money to purchase material to make Ku Klux Klan garments for others.

F-31 and F-32 were reimbursed by the SPLC with donor money for all expenses they incurred for cross-burning events to include the wood and fuel used….

As I noted in my original post,

I take it that one defense argument as to the donor fraud claims may be that they were trying to dismantle violent extremist groups, both by paying money to get information about them and by causing the groups to do and say things that would discredit them. That may itself be discreditable, but the question will be whether it's a fraud on the donors.

And I followed up with expressing some tentative skepticism about the government's theory. (The government is also accusing the SPLC of making false statements to banks about the accounts that were used to fund its activities; I didn't focus much on that.) But in any event, the indictment and now the superseding indictment are factually noteworthy, whatever one thinks of the legal theory. Of course, note that they are just indictments, which is to say the government's allegations; we'll see what emerges at trial.

The post More on the Southern Poverty Law Center Allegedly Funding the American Nazi Party and Other Racists appeared first on Reason.com.

This Court recently began making uncertified transcripts of the audio recordings of Court proceedings (each such transcript, an "Uncertified Transcript") available to parties with a need for them. However, such Uncertified Transcripts are provided for informational purposes only. They are not checked, proofread, or corrected. They are not official Court records and may not be relied upon for any purpose absent agreement of all parties and further Court order;

Uncertified Transcripts are machine-generated by natural language processing artificial intelligence software that, while improving, often produces meaningful inaccuracies, limiting the usefulness of such transcripts and creating a risk that a person reading them, and particularly a non-party, will misunderstand what actually happened during the transcribed proceedings;

Certified transcripts, produced by qualified court reporters, are far more accurate and are, under Virginia law, the preferred method of recording and demonstrating what occurred in any Court proceeding. See, e.g., Code § 8.01-420.3;

This action involved matters of child custody, raising the best interests of the involved children as the paramount concern of the Court. See, e.g., Bottoms v. Bottoms, 259 Va. 410,413 (1995) (quoting Bailes v. Sours, 231 Va. 96, 99 (1986));

On April 17, 2026, Lauren Burke ("Requestor") submitted three requests for the Uncertified Transcript of the Trial (such requests, the "Request");

Requestor was neither a party to this action nor a witness at the Trial;

A qualified court reporter attended the Trial and would be able to produce a certified transcript of the proceedings;

The Court has reviewed the Uncertified Transcript of the Trial and found it to be replete with errors, omissions, and other inaccuracies such that it does not constitute an accurate record of the testimony, argument, and rulings made during the Trial;

Release of the Uncertified Transcript creates a substantial risk of misrepresenting the nature, details, and conduct of the Trial, which is contrary to the best interests of the children involved;

A more accurate, certified transcript should be available to the parties from the court reporter who attended the Trial;

Accordingly, declining to release the Uncertified Transcript of the Trial is in the best interests of the children and would result in no prejudice to any party;

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

The Request is DENIED …;

The Uncertified Transcript of the Trial must not be released ….

A certificated transcript, as the court notes, would be available, but would presumably cost a considerable amount of money (at least in the hundreds of dollars, depending on the length of the proceeding).

The post Court Refuses to Release Auto-Generated Transcript in Justin Fairfax Child Custody Trial, Citing AI Transcription Errors appeared first on Reason.com.

[The] charges [in this case] were predicated on photographs and videos of the defendant's minor daughters taken between 2002 and 2016 and were found on a computer and an external hard drive in the defendant's home. The defendant's husband, Douglas Nichols, who is not a party to this appeal [but who reportedly has filed his own appeal -EV], was also charged … with possession of the same images and videos.

Some backstory on how the images were found, from a March article in the Decator Herald & Review (Tony Reid):

Detectives with the Decatur Police Department had been looking for evidence on four counts of … earlier criminal sexual assault charges against Douglas Nichols alone plus eight counts of aggravated criminal sexual abuse involving a female teenage victim when they came across the pictures and video that led to the child sex abuse image charges.

A December 2022 story in the same newspaper by the same reporter says:

On May 20, 2021, the Decatur Police Department received a complaint from an individual alleging sexual assault that had occurred over 10 years ago by a subject known to them. The case was assigned to a detective and an investigation into the allegations immediately commenced.

Back to the wife's appeal:

[D]efendant had two daughters, Ky.N. (born November 4, 2000) and Ki.N. (born October 1, 2002)…. Ky.N. testified [at trial] that she was voluntarily testifying, and that she had always felt safe and felt that her mother was supportive growing up. She testified that the family's digital cameras were usually placed where anyone could access or use them, that she had used her mother's phone to take pictures whenever she had wanted to, even daily, and that her sister had done the same. She also testified that her mother took photos of her and her sister all the time. Additionally, Ky.N. testified that her parents never asked her to take her clothes off before taking photographs or videos of her, and that they had never asked her to pose in a sexually suggestive manner….

Ky.N. testified that she didn't recognize the photos but did recognize the home. She testified that she recognized her sister and herself, but she did not remember the photographs being taken or the events being depicted. She stated that it looked like they were having fun playing horses or unicorns with the toilet paper tails, and that she and her sister commonly played with toilet paper.

In regard to People's Exhibit 4, she testified that she did not recognize the video, but that it was her sister Ki.N. playing with a pogo stick, and that she recognized both her and the defendant's voice. In regard to People's Exhibit 5, Ky.N. testified that she did not recognize the video, but that it was of Ki.N. and her cousin in the shower. She testified that her sister commonly sang in the shower and that, growing up, she recorded her sister singing in the shower by pointing the phone at the floor. On cross-examination, Ky.N. testified that she did not remember her parents ever taking nude photographs of her, and that she did not remember anyone else ever taking nude photos of her, and further reiterated she did not know who took the photographs but that it could have been anyone….

[D]efendant's husband … testified that they left the children with babysitters on Tuesdays when both he and the defendant were at work. He testified that he took photos of his children all the time. He also testified that neither he nor the defendant had ever asked them to take their clothes off to take pictures, nor had they ever asked them to pose in suggestive ways. He testified that anyone could use any cameras at any time, but that he was the one who backed up all the photographs and videos from the family's devices to the computer…. He testified that before he was charged, he had never seen any of the charged photographs, but that his children had been spontaneous, and that included doing the things seen in the charged exhibits….

The defendant … testified that she and Douglas would occasionally leave the children with babysitters every couple of weeks to go out together, and they left them with one every Tuesday while they both worked. She testified that the behavior seen in the photos was all in line with how Ky.N. and Ki.N. used to play. She testified that she took photos with her kids daily and that she took photos of them in both posed and spontaneous moments, but she never asked them to take their clothes off before doing so, nor did she ever pose them in sexually suggestive ways…. [She testified] that she never reviewed the old photos and stated she did not recall ever taking the charged images, but she admitted she had taken photos of her children while they were nude. She also admitted there were times she had recorded Ki.N. topless while she was engaged in physical activity….

[T]he defendant's other daughter … testified that she was thankful for her parents and felt safe growing up. She testified that growing up, the family camera was typically kept in the kitchen and that everyone, including members of her extended family, and possibly even babysitters, had used it. She also testified that she used her mother's phone to take pictures daily and her sister had used it frequently as well.

In regard to People's Exhibits 7 through 12, she testified that she did not recall the photographs being taken, but believed that they had come up with the idea of making and playing with toilet paper tails, and that such activity was representative of the sort of spontaneous things they would do. In regard to People's Exhibit 4, she testified that she was the girl on the pogo stick and that it was not uncommon for her to take off her shirt when she got hot as a kid. She also testified that she recognized defendant's voice, as well as her sister's voice in the video, but did not remember which one took the video.

In regard to People's Exhibit 5, she testified that the girls in the shower were herself and her cousin, and that they were having fun showering and singing "Bop to the Top." She also testified that she did not know who took the video. Finally, Ki.N. testified that her parents had never asked her to take her clothes off for a photo or video, nor had they ever asked her to pose in a sexually suggestive manner.

On cross-examination, she testified that she did not specifically remember if she took her top off in People's Exhibit 4 because she was hot, nor did she remember who took People's Exhibit 5, despite her claim on direct examination that she could see anyone who came in the bathroom due to its layout. She also testified that she didn't believe People's 7 through 12 were posed as she believed they were spontaneous….

The court goes through the relevant photographs in detail, and concludes that, though they showed some nudity, they "were not lewd as a matter of law" (which is what would be required to find that the photographs were constitutionally unprotected child pornography). The analysis is long, but here's an excerpt:

People's Exhibit 4 is a 17-second-long video of a partially nude adolescent female with partially developed breasts fully exposed. The video is filmed by a separate individual and appears to be taking place in a finished basement living room type area due to the placement of the window on the roofline of the wall and the presence of couches and a large television in the room,. As the video begins, the female's entire body is visible in the frame, and she is only wearing underwear, socks, and slippers, with no other clothing. She is holding the pogo stick handles in her hands, with one foot on the pogo stick and one foot on the floor.

The female appears to know she is being recorded because she looks straight ahead, then at the camera, then back straight ahead. As the female begins jumping on the pogo stick, the video zooms in on her clothed pubic area, and then moves upwards, focusing on her head and unclothed torso, though much of her legs and arms remain visible as well. The female then falls off the pogo stick and out of frame. As the female steps back into frame, the video zooms out to show her whole body again, and she returns to her starting position. The video then ends.

Turning to the first factor [of the test that the Illinois Supreme Court developed to determine whether material was child pornography], the focal point of the video, we note that the video begins with the female visible "head-to-toe"; but once she begins bouncing it does zoom in on the area of her clothed genitals, then moves upward to focus on her head and unclothed torso until she quickly falls out of frame and it zooms back out to capture her whole body. The zooming appears somewhat clumsy. Taken as a whole, we find that this factor weighs in favor of finding that the video was lewd.

Turning to the second factor, the setting of the video appears to be a basement living room. There is nothing in the setting that would suggest or invite sexual activity. Therefore, we find that the video's setting does not weigh in favor of finding it lewd.

Turning to the third factor, the adolescent female in the video is playing with a pogo stick, which is an age-appropriate activity. While she knows she is being recorded, she does not appear posed but instead appears to be actively playing in a moment of adolescent spontaneity. While the toplessness is inappropriate for the activity, we find it a minor factor here, as we note that we do not consider the nudity itself under this factor. Therefore, taken as a whole, we find that this factor does not weigh in favor of finding that the video was lewd.

Turning to the fourth factor, we note that the adolescent female in this video appears partially clothed, wearing underwear on her genitals but not wearing any top. While the nudity is partial, we do find that this factor weighs in favor of finding that the video was lewd.

Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the adolescent female, to suggest sexual coyness or willingness to engage in sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.

Turning to the sixth and final factor, we note that the video does not appear to suggest an intention to elicit a sexual response in an objective viewer. Neither does the video appear to invite the viewer to perceive the images from a sexualized or deviant point of view, such as that of a voyeur, as the adolescent female appears to know she is being recorded. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.

In evaluating all of the factors together, we find that factors one and four are present while factors two, three, five, and six are not. While not all factors need to be present to support a finding that a video is lewd, we find that, taking into account the overall content of the image and the age of the minor, the video shows an adolescent engaged in nonsexual conduct that is not inappropriate for her age. While we find the video deplorable, it does not meet the standard required to deem it objectively lewd. Accordingly, we find that it does not constitute child pornography under Illinois law.

The post Court Reverses Child Porn Convictions, Finding Material Was Non-Lewd Family Photos and Videos appeared first on Reason.com.

The post Today in Supreme Court History: June 4, 1923 appeared first on Reason.com.