Attorneys Mike Singh Sethi and William Rounds filed briefs in this Court with multiple nonexistent cases, misattributed quotations, and gross misrepresentations of real cases. Sethi and Rounds claimed that the errors were the product of innocent typographical mistakes. And they repeatedly denied the possibility that generative artificial intelligence ("AI") might have produced the errors.

Having identified other cases in which Sethi or Rounds filed briefs that presented similar problems, we ordered them to show cause why they should not be sanctioned, suspended, or disbarred from practice before this Court. We have considered their response, and we now impose discipline….

We issue this disciplinary order, and explain our reasoning at some length, as a warning to the members of this Court's bar: be aware of the risks of overreliance on generative AI, read everything cited in a court filing—whether drafted by generative AI or not—and disclose quickly and transparently generative AI hallucinations that are inadvertently included in court filings….

There's a lot of factual detail in the opinion, but here are a few general observations from the court:

Two types of [generative AI] mistakes, or "hallucinations," are most relevant: fabrications and inaccuracies. Fabrications are instances in which the generative AI tool provides cases or quotations that do not exist at all.

Inaccuracies are more subtle. The generative AI tool might cite to real authorities but provide an answer that is legally or factually inaccurate or not supported by the citation.

Fabrications are the most notorious hallucinations, but inaccuracies may prove more dangerous to our profession in the long run. Inaccuracies are more likely to go unnoticed by attorneys and judges because they are not always susceptible to facial checks. Rather, "[i]dentifying these misunderstandings often requires close analysis of cited sources." With close analysis, some inaccuracies might be clear—for instance, claiming that a case expressly stands for a proposition about a certain topic when the case does not discuss that topic at all. Others may be difficult to distinguish from poor legal reasoning.

And inaccuracies are common, even in newer generation models that produce fewer fabrications. Including inaccuracies, legal-specific generative AI tools from Westlaw and Lexis hallucinated 17% and 33% of answers, respectively, to a representative set of queries run in 2024. [Citing Magesh et al., Hallucination-Free? Assessing the Reliability of Leading AI Legal Research Tools, 22 J. Empirical Legal Stud. 216 (2025).] {Popular legal AI tools have apparently adopted a definition of hallucination that only includes fabrications. We agree with Magesh et al. that this is "plainly irrational," as such a definition "would require us to conclude that a tool that links only to Brown v. Board of Education on every query … has provided 'hallucination-free' citations."}

The most common error modes of the latest generation tools include misunderstanding holdings, failing to distinguish between legal actors (e.g., presenting a rejected party argument as the holding of the court), and failing to respect the hierarchy of authorities. In other words, the sort of errors that we might expect a first-semester law student to make, but certainly not licensed attorneys appearing before this court.

As we will explain, filing briefs with hallucinated fabrications and inaccuracies violates procedural and ethical rules. Lawyers using generative AI must thus be aware of the tendency of generative AI to make these mistakes and guard against them….

However legal papers are prepared, and however legal technology develops, our procedural and ethical rules apply with equal force. Just as faithful adherence to those rules would prevent the submission of generative AI hallucinations, such adherence would also prevent the submission of similar human-generated errors….

[A] competent and diligent attorney must do more than prompt generative AI, check that the citations provided by the AI are real and the subject matter roughly on point, and call it a day. A competent and diligent attorney must also read and reason….

It is no excuse that Sethi entrusted substantive cite checking to subordinates, and it is no excuse that Sethi purportedly did not know his subordinates had used generative AI. It was Sethi's signature, and his alone, on the briefs. So, it was Sethi who "present[ed]" the unwarranted contentions.

And Sethi's signature was an attestation that he personally reviewed the contents of the brief, including the cited authorities, and that they were accurate. Sethi did no such review, and his attestation was not conditional on the tools that his subordinates might have used to prepare the first draft, nor could it be.

To the contrary, Sethi attests that he and Rounds "do not normally vet citations used by the Brief writer during our review." That is an extraordinary confession. A competent and diligent attorney cannot decline to "vet" citations, in a brief he signs, for substantive validity—in other words, to read the cited authorities and ensure that they are on point.

We do not suggest that every minor typographical error in a citation gives rise to a violation of the ethical and procedural rules. The errors we identify, however, are not plausibly typographical….

We stress that when an attorney learns of any error in a filing—including generative AI hallucinations—he should immediately alert the court and opposing counsel of the error and disclose its source. There is no upside to denying the use of generative AI or to passing off an AI hallucination as an innocent typographical error. The other rules discussed in this order—competence, diligence, meritorious arguments, citations to authority, attestations to accuracy—do not turn on the source of the error.

If, in the Motion to Correct, Sethi and Rounds had disclosed that AI was used in the opening brief against firm policy and apologized for failing to check the brief, lesser sanctions may have been warranted. But that is not what they did. The gravity of discipline we impose, including the temporary suspension of practice, is owed to this repeated failure of candor….

And here are a few excerpts as to the factual details, though there's a lot more on this in the opinion:

Sethi filed an opening brief in this case with multiple fabricated citations and quotations. Sethi cited two cases that do not exist and never existed: "Eduardo v. Garland, 28 F.4th 742 (9th Cir. 2022)," and "Lay v. Holder, 729 F.3d 962 (9th Cir. 2013)." And Sethi twice attributed quotations to real opinions in which the quoted language does not appear: Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001), and Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015). The Attorney General did not flag the fabricated citations in the answering brief.

After we denied the parties' joint motion to submit Lnu on the briefs, Sethi filed a Motion to Correct the Record Re: Errata to Petitioner's Opening Brief ("Motion to Correct"). The Motion to Correct represented that the two nonexistent cases—"Eduardo v. Garland" and "Lay v. Holder"—were "typographical errors." Sethi sought to replace those cases with two cases that have similar names, different reporter numbers, and in the case of "Lay," a different year: Udo v. Garland, 32 F.4th 1198 (9th Cir. 2022), and Lai v. Holder, 764 F.3d 1098 (9th Cir. 2014). He also sought to "correct" the holding for which "Lay" was cited. Sethi did not explain how such significant typographical errors might have occurred. Nor did he address the quotations misattributed to Kamalthas and Avendano-Hernandez.

Sethi did not appear for oral argument. Rounds appeared on behalf of Petitioners instead. At oral argument, we asked Rounds to explain the errors identified in the Motion to Correct. Rounds stated that the intended citations were "somewhat garbled" and reiterated the claim that Sethi had intended to cite real cases. Rounds claimed that the real cases "stand for the same proposition." As for the source of the errors, Rounds asserted that he was "not sure" but that "it looks like it was a copy and paste error or something like that."

We then asked Rounds whether the errors might have been the product of generative AI, to which Rounds said that AI "was not used." Rounds explained that the quotation misattributed to Kamalthas appeared in a different case, but did not explain how the misattribution occurred. We again asked Rounds whether generative AI might have been used to supplement the briefs, to which Rounds again said: "No. AI was not used …." We raised the other quotation misattributed to Avendano-Hernandez and again asked whether the error was the product of generative AI, to which Rounds again said "No."

After further questioning on the source of the errors, Rounds finally conceded that it was "possible" that AI might have been used by the individual who drafted the briefs. He clarified that although Sethi's name was on the briefs, Sethi did not draft the briefs, but only "reviewed" them. Rounds later revealed that the brief writer was not yet licensed to practice law, and that no licensed attorney read the cases cited by the unlicensed brief writer…

After oral argument, we ordered Sethi and Rounds to show cause ("Order to Show Cause") why they should not be sanctioned, suspended, or disbarred from practice before this court for "conduct unbecoming a member of [this] court's bar," and for "violating applicable rules of professional conduct." In the Order to Show Cause, we identified additional issues in the Lnu reply brief…. We also identified similar issues in briefs filed by Sethi in other cases pending in this Court….

The misconduct in this case did not end with the initial filing of the Lnu briefs. At every subsequent step—including the Motion to Correct, oral argument, the Response to our Order to Show Cause, and more recent filings in other cases—Sethi and Rounds have knowingly or recklessly made false statements to this Court….

Instead of transparency, and despite our Order to Show Cause, Sethi has apparently chosen to engage in more subtle subterfuge. In one of the matters we identified in our Order to Show Cause, Contreras Pelayo v. Bondi, No. 24-5168, Sethi filed a "Notice of Errata" that identified two hallucinated citations and requested to replace them with real citations. The motion did not represent the errors as "typographical." But nowhere in that motion did Sethi disclose that the prior citations were hallucinations. Instead, Sethi merely said that the brief "contains errors in two of the case citations." He then simply listed the fabricated citations and said that each was "an error" or "incorrect," and then identified what the real citation "should be."

This is not sufficient disclosure. By citing the hallucinations in the opening brief and signing the brief, Sethi previously attested to the accuracy, and thus the existence of, the hallucinated citations. Swapping a hallucination out for a real case does not correct the prior false claim that "this is a real case." By failing to notify the Court that Sethi previously cited cases that do not exist, Sethi "fail[ed] to correct false statements of … law previously made to the tribunal." …

The court imposed the following disciplinary measures:

1. Sethi and Rounds are hereby suspended from practice before this Court for a period of six months starting ten days after this Order is filed.
2. Sethi and Rounds are ordered to provide a copy of this Order to their clients, opposing counsel, and the presiding judge in every pending state or federal case in which they are counsel of record. They shall also provide a copy of this Order to every attorney in their law firm….
3. Sethi, Rounds, and all attorneys at the Firm are ordered to include in all future filings a statement, made under penalty of perjury, addressing whether generative AI was used, disclosing the name of the tool used, and certifying that the attorney signing the brief or other filing has personally reviewed the filing and that all citations and quotations therein refer to existing authority….
4. The Court orders the Clerk of Court to serve a copy of this Order on the State Bar of California and any other applicable licensing authorities for further proceedings as appropriate.

The post Ninth Circuit on AI Hallucinations appeared first on Reason.com.

From yesterday's decision (which strikes me as correct) in Accountability Now USA v. Griess, by Judge Randolph Moss (D.D.C.):

Plaintiff, an unincorporated association that maintains a 24/7 demonstration calling for the impeachment and removal of President Donald Trump on National Park Service ("NPS") land, moves for an emergency order temporarily restraining the Superintendent of the National Mall and Memorial Parks Kevin Griess and the Secretary of the Interior Doug Burgum or their delegees "from taking enforcement action against them because of their display of a flag with the legend '8647.'" For the reasons that follow, the Court will grant Plaintiff's motion….

The parties' disagreement … turns on whether Plaintiff's display of the "8647" flag constitutes protected speech, as Plaintiff asserts, or a "true threat" to the life or safety of the President (or an incitement to violence), as Defendants maintain. At oral argument, both sides agreed that context is dispositive. Not every use of the slang phrase "86" constitutes a threat of violence; to the contrary, it is most often used to mean that an item is no longer available or that someone or something should be removed, ejected, or thrown out. But it can, in some contexts, mean "to kill." …

"True threats of violence, everyone agrees, lie outside the bounds of the First Amendment's protection." "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." "The 'true' in that term distinguishes what is at issue from jests, 'hyperbole,' or other statements that when taken in context do not convey a real possibility that violence will follow." …

The Court starts with the premise that the word "86" is a slang term with no single meaning. According to Merriam-Webster, "Eighty-six is slang meaning 'to throw out,' 'to get rid of,' or 'to refuse service to.'" The phrase "comes from 1930s soda-counter slang meaning that an item was sold out[,]" and may have been used because it rhymes with "nix." It was first used as a noun to refer "to an item … that had been sold out," but by the 1950s, the term was used as a verb, at first meaning " 'to refuse to serve a customer,' … later meaning " 'to get rid of; to throw out,' " and still later coming to mean " 'shut out' or 'rejected.'" Merriam-Webster further notes that a recent extension of these meanings has included "'to kill,'" although the dictionary declines to endorse that meaning "due to its relative recency and sparseness of use." According to Merriam-Webster, "[t]he most common meaning of eighty-six encountered today is the one that is closer to its service industry roots." …

Plaintiff represents that its display of the flag was "not in any way a threat against the President" but, rather, was part of months-long demonstrations demanding "the impeachment and removal of President Trump." Although Defendants offer no evidence or explanation regarding how (and why) the NPS understood Plaintiff's actual use of the term, the Deputy Director of the Secret Service attests that he generally "regard[s] the statement '86-47' as a potential call for acts of violence directed at the President of the United States" and that he "understand[s] '86' to represent a euphemism for acts of physical violence." … Although the Court recognizes the importance and difficulty of the mission of the Secret Service, the First Amendment does not permit the government to censor political speech, which no reasonable observer would view, in context, as actually conveying a threat of violence, merely because the speaker uses a phrase that, in addition to other more common meanings, has been used to refer to an act of violence.

The question whether "8647" constitutes a true threat cannot be resolved in the abstract, without consideration of context, and, here, the relevant context makes clear that no reasonable observer could have viewed Plaintiff's display of the flag as a threat to the President's life or physical safety.

To start, the flag itself contains no symbols of violence; it is red, white, and blue, and is simply adorned with white stars. It contains no knives, skulls, nooses, or other threatening symbols. Even more to the point, the flag was displayed outside the courthouse, as part of an ongoing demonstration seeking President Trump's impeachment and removal from office. In a video submitted by Plaintiff, the flag can be seen hanging from one side of Plaintiff's tent, surrounded by not one, but four signs that read "IMPEACH. CONVICT. REMOVE." Yet another sign merely reads: "IMPEACH." In short, the surrounding signage urged Congress "to throw out" the President. Nor is there any evidence that Plaintiff or the volunteers who staffed the demonstration engaged in any threatening speech or conduct….

Under these circumstances, it is difficult to fathom how the NPS (or the Secret Service) could have concluded that a reasonable observer would view the flag as a true threat. The term "86" is used far more often to mean "throw out" than "kill," and it appeared at a demonstration that was focused, of all things, on the constitutional impeachment and "removal" of the President….

At oral argument, Defendants' counsel conceded that (1) the inquiry of whether particular speech is a true threat is context-dependent; (2) there are circumstances in which the term "8647" does not represent a true threat to the President; and (3) the Defendants are "not going to prosecute or go after everybody with an 8647 flag." But when asked, how, then, did Defendants conclude that Plaintiff's specific invocation of "8647" constituted a true threat, Defendants' counsel retreated, repeatedly asserting that the use of the term in the context of unprecedented and recent assassination attempts against the President constitutes a true threat. When asked whether the agency engaged in any case-specific fact-finding or undertook any analysis of whether Plaintiff's usage of 8647 in the context of its ongoing demonstration violated 18 U.S.C. § 871 [the statute banning threats against the President -EV], Defendants' counsel demurred, noting that he either did not know or that there was nothing in the record before the Court….

[T]he Court invited Defendants to supplement the record with any evidence or material explaining the NPS's thinking. Defendants failed to offer any analysis or consideration of specific context surrounding Plaintiff's display of the flag. Instead, Defendants simply repeated Deputy Director of the Secret Service Matthew Quinn's averment that he regards "the statement '86-47' as a potential call for acts of violence directed at the President," and noted that "a shooting occurred in the vicinity of the White House" on May 24, 2026, and that this "potential assassination attempt" was a "significant intervening event from when [the Secret Service] first encountered the individual holding [the] flag"; that "the Secret Service shared information with the U.S. Department of the Interior about its ongoing investigation relating to the individual holding [the] flag"; that the Secret Service has investigated or is currently investigating "over 1,300 instances of individuals using '86-47'" as a threat; that "[m]ost '86-47' investigations by the Secret Service involve online threats" and that the use of the "flag near the White House is a novel event"; and, finally, that "[t]he Secret Service does not construe '86-47' to mean impeachment."

Strikingly, only two or three of these assertions have any plausible nexus to the specific context of Plaintiff's display of the flag, and none of those assertions amounts to anything. The first relevant assertion merely notes that the Secret Service is conducting an ongoing investigation of the volunteer who spoke with the officers on May 12. But the government says nothing about whether that investigation has revealed any evidence to support a true threat claim, and an investigation is just an investigation.

The second and third assertions merely note that Plaintiff was displaying the flag in the same city in which the White House is located—albeit almost two miles away—and that a shooting occurred on the street near the White House on May 24. It sweeps far too broadly, however, to suggest that anyone displaying an "8647" flag in Washington, D.C. after the May 24 shooting has made a true threat to the President's life or safety.

The Court does not doubt that political violence is on the rise and that it poses a grave threat not just to the targets of the threats but to the country as a whole. But the enormity of that problem does not change the meaning of Plaintiff's speech, which by any reasonable measure merely advocated for the President's impeachment and removal from office—that is, "to throw [him] out." …

The court also concluded that the speech couldn't be plausibly be interpreted as falling within the First Amendment exception for incitement to violence (a separate exception from the one for threats):

The record contains no evidence that a reasonable observer would have viewed the flag as an incitement to imminent violence or that Plaintiff intended to incite political violence. Although Deputy Director Quinn attests that he believes that the term 8647 "as it is understood today, can incite violence by others," Brandenburg [the case defining the incitement standard -EV] does not refer to words that "can incite" imminent lawlessness—it refers to words that are "likely to incite"—and Defendants do not even suggest that Plaintiff's flag comes close to satisfying that demanding standard….

Arthur B. Spitzer, Aditi Shah, and Laura K. Follansbee (ACLU DC) represent plaintiff. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post Court Issues Temporary Restraining Order Protecting Group Flying "8647" Flag appeared first on Reason.com.

From a draft by Stanford law professor Julian Nyarko and others:

We conducted a blinded evaluation of short-answer tutoring in contracts courses with sixteen U.S. law professors. Participants created 40 representative questions, wrote answers, and judged 2,918 anonymized comparisons between human and LLM responses. Professors rated LLMs far higher than their peers (average win rate = 75.33%), with models performing similarly to the best instructor. LLM responses were also rarely flagged as harmful (3.53%, vs 12.06% for professors). Preferences for LLM answers were consistent across evaluators and reflected shared professional standards….

Sixteen contracts professors from fourteen U.S. law schools—who all use the same casebook to teach the material—authored questions representative of those asked during office hours. From this pool we curated 40 representative questions spanning four instructional categories (Recall: Case or Code, Recall: Doctrine, Hypotheticals, Policy).

Recall questions—whether relating to a case, code or doctrine—tend to be amenable to answers which can be evaluated against a ground truth, and where argumentative strength is of little importance. In contrast, hypotheticals present a short set of facts and ask how the law should be applied. Together with policy questions, which often center on legal or policy design under heterogeneous preferences, providing a strong answer in this category often relies on displaying careful reasoning, weighing competing arguments and other latent, professional standards of quality—even if the relevant doctrine is now settled.

In a second step, each professor wrote short answers to a subset of the 40 questions. … In a third step, we conducted blinded, forced-choice comparisons in which professors judged anonymized pairs of answers written either by their colleagues or by two LLMs. Among the different model families, we opted for Google's models because at the time, Google made explicit efforts to optimize their models for the educational context. Consequently, we included a stock version of Gemini 2.5 Pro and a retrieval-augmented NotebookLM with access to the casebook. Preference rankings have been shown to be a particularly effective method in ranking unstructured, open text responses, thus yielding advantages over more common, rubric-based evaluations especially where quality is a more elusive concept…

To probe whether any LLM advantage might be driven by surface-level writing style rather than substantive content, we additionally engineered a set of lexico-syntactic features—answer length, structural organization, reasoning nuance, legal anchors, confidence tone, clarity, and pedagogical support—and tested how much of the preference pattern they could explain. Each professor completed approximately 150–200 pairwise evaluations, selected the better answer, and could flag any answer as pedagogically "harmful" {[i.e.,] likely to mislead or hinder learning}.

We present four main findings. First, LLMs meet—and often exceed—the professional standard as defined by expert preference. Gemini 2.5 Pro outperformed all but one instructor in head-to-head comparisons (average win rate against all instructors = 75.92%), though the difference between Gemini and the better-ranked instructor was not statistically significant. NotebookLM, by contrast, outperformed every human instructor, with one tie (average win rate = 74.75%).

Second, the LLM advantage was similar across all category questions.

Third, harmfulness rates for LLMs were low (Gemini 3.41%, NotebookLM 3.64%), compared to the wider dispersion among professors (1.00–39.75%), underscoring that the risk of pedagogically problematic responses is comparable to that of the best human instructors. When evaluating peer-written answers, each professor on average preferred LLM responses over responses generated by human instructors, suggesting that model outputs were not merely appealing to a particular subset of evaluators.

Fourth, the engineered textual features explain only part of the LLM advantage: in calibration analyses, observed LLM win rates systematically exceed the win rates predicted from lexico-syntactic differences alone, indicating that the preference for LLM answers is not reducible to length, clarity, or other stylistic markers.

The post Eventually, the Steam Drill Always Wins: "Law Professors Prefer AI Over Peer Answers" appeared first on Reason.com.

Below is my list of speaking engagements for the summer of 2026. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.

I normally post lists of speaking engagements only during the academic year. But this summer, I have an unusually large number of them. So I decided to do a post.

I  may add additional events and information to this post, as they are scheduled, and update details on existing ones. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business!

June 10, 12-1 PM, Southwest Florida Federalist Society, Lawyers Division Chapter, Bruno's (restaurant), 2149 First St., Fort Myers, FL: "Immigration is Not Invasion."

June 17, 3-4 PM, Housing Working Group, American Institute for Economic Research (online event): "The Constitutional Case Against Exclusionary Zoning." This event is, I believe, limited to members of the AIER housing working group, and possibly other AIER affiliates.

June 17, 6-9 PM, Institute for Humane Studies, National Press Club, Washington, DC: "IEEPA and the Limits of Executive Power." This event features a live podcast recording, followed by a Q&A session, and a reception. Registration and other information available here.

July 7, 6-7:30 PM, Annual Supreme Court Review, National Constitution Center, Philadelphia, PA: "Tariffs and the Limits of Executive Power" (tentative title). Panel on "The Supreme Court and Executive Power."

July 15, time TBA, Brennan Center for Justice, New York University, NYU DC 1307 L Street NW, Washington, DC: "Assessing the Tariff Decision" (tentative title), conference on "Congress and the Court.

The post Upcoming Speaking Engagements - Summer 2026 appeared first on Reason.com.

The State of Ohio, City of Nelsonville appeals the judgment rendered in this criminal case involving an offense of disturbing a lawful meeting. The State contends that the trial court erred when it added the element of "substantial" to the offense of disturbing a lawful meeting under R.C. 2917.12(A)(1) to its jury instructions….

The State presented witness testimony from the Nelsonville City Council President, Gregg Clement, that the Nelsonville City Council held a regular meeting on April 14, 2025 at which two new council members were to be sworn in following the roll call. However, after roll call and before the swearing in, [former City Council President] Nguyen stepped forward and began speaking.

Clement called Nguyen to order and instructed her that it was not the appropriate time to speak and that she could make comments during the citizens' comment period. Nguyen continued to speak, and Clement called her to order a second time and again instructed her that she could speak under the citizens' comment period. Nguyen continued to speak and Police Chief Devon Tolliver, who was providing security for the meeting, stepped in and tried to get Nguyen to stop speaking, but she continued so Chief Tolliver removed her from the council meeting.

Clement called a recess of the meeting for approximately 10 to 15 minutes to allow everyone to regain composure. Following the recess, the meeting was resumed, there were no further interruptions, council business was conducted, and the meeting concluded. Clement testified that he believed that Nguyen had the misconception that she was the Nelsonville City Council President and could speak anytime during the meeting. However, because Nguyen had resigned from council several weeks earlier, Clement understood that Nguyen was no longer a member of council.

Nguyen testified that she believed that she was the city council president during the April 14, 2025 meeting and had the right to speak when she did without waiting until the citizens' comment period. Nguyen testified that it was her intent to speak for two minutes. A video recording of the meeting was played for the jury. The video shows Nguyen speaking and arguing with council president and the police chief continuously for approximately three and one-half minutes. Nguyen continues to argue loudly with law enforcement off camera as she is removed from the meeting, such that Clement called a recess for approximately 10 to 15 minutes….

Nguyen was charged with a violation of Ohio Rev. Code 2917.12(A)(1):

(A) No person, with purpose to prevent or disrupt a lawful meeting, procession, or gathering, shall do either of the following:

(1) Do any act which obstructs or interferes with the due conduct of such meeting, procession, or gathering ….

The question was whether a "substantiality" element, which wasn't included in the statutory text, was nonetheless required by Ohio law, and the court said no:

[An earlier] case, State v. Schwing (Ohio 1975), involved the conviction of Schwing under R.C. 3761.11, which stated, "No person shall willfully interrupt or disturb a lawful assemblage of persons," after he entered a meeting room at a public university where speakers were discussing proposed changes to the Ohio Criminal Code. Schwing shouted profanities and physically restrained a municipal court judge in attendance. The Court recognized that R.C. 3761.11 was an attempt to discourage deprivation of the right to assemble…. The Court found that audience activities of heckling and booing maybe be impolite but nevertheless advance the goals of the First Amendment.

The First Amendment contemplates a debate of important public issues; its protection can hardly be narrowed to the meeting at which the audience must passively listen to a single point of view. The First Amendment does not merely insure a marketplace of ideas in which there is but one seller.

The Court found that R.C. 3761.11 made no distinction between constitutionally protected interruptions of a lawful assemblage and interruptions which substantially impinge on the right of assembly. The Court held that the trial court's charge to the jury should have narrowed the scope of R.C. 3761.11 to willful disturbances that cause a lawful assemblage "to terminate in an untimely manner" or those which "substantially impair the conduct of the assemblage."

Since R.C. 3761.11 was repealed and replaced by R.C. 2917.12, the Supreme Court of Ohio has not considered the constitutionality of R.C. 2917.12…. However, other Ohio courts have. In State v. Brand (Ohio App. 1981), Brand was shouting during an event held on Fountain Square in Cincinnati where First Lady Rosalyn Carter was speaking…. The appellate court held that the trial court erred when it did not give limiting jury instructions that the interference must be "substantial" as defined by the Court in Schwing.

In State v. Wolf (Ohio App. 1996), Wolf was convicted of disturbing a lawful meeting in violation of R.C. 2917.12(A)(1) after he attended a local board of health meeting and attempted to sit at the board table and make statements about another attendee…. The appellate court [held]:

R.C. 2917.12(A)(1) does not contain the term "substantial," and therefore it was not necessary for the trial court to instruct the jury on the definition of the term or on any limitation of the statute in relation to the term….

In State v. Zagger (Ohio App. 1981), Zagger was convicted of disturbing a lawful meeting under R.C. 2917.12 for a "pie in the face" attack on a speaker at a public high school…. The appellate court … found that Schwing was only applicable to the repealed R.C. 3761.11. Zagger was charged under was R.C. 2917.12 which the court found was "not identical to its predecessor. In addition, it so clearly encompasses the corrective principle of Schwing, that its constitutionality without a limiting instruction is patent."

For R.C. § 2917.12(A) contains a constricting and defining preface which attaches to all the prohibited acts which follow. That preface limits the statute's prohibitions to acts whose purpose is "to prevent or disturb a lawful meeting, procession, or gathering …." So defined the perimeter of the unlawful conduct confines only unprotected acts. Thus, R.C. § 2917.12 did not require a delineating instruction to save its constitutionality.

In Columbus v. Doyle (Ohio App. 2002), Doyle was convicted of disturbing a lawful meeting in violation of a city ordinance identical to R.C. 2917.12. Doyle was at a public school district meeting, which allowed speakers three minutes of speaking time during a public comment period. Doyle went over his three minutes and was told several times to stop commenting and sit down. He refused and was physically removed by police officers and charged with disturbing a lawful meeting…. The appellate court found that the statute was constitutional because it does not regulate the content of a person's speech ….

Here Nguyen was not in the public square or on a public university like the defendants in Schwing and Brand, where strong First Amendment rights to freedom of speech exist; she was at a city council meeting…. City council meetings are limited public forums. Because Nguyen was at a limited public forum, her speech could be limited to the discussion of certain topics and limited to a designated and abbreviated period.

The Nelsonville City Council established a viewpoint neutral and reasonable citizens' comment period and asked Nguyen to hold her comments until the citizens' comment period. She refused and was removed and charged with disturbing a lawful meeting. Nguyen does not contend, nor do we find any evidence in the record, that she was prevented from speaking due to the viewpoint of her speech.

We find the analysis of Wolf, Zagger, and Doyle persuasive. R.C. 2917.12(A)(1) does not contain the term "substantial" and targets persons who act "with purpose to prevent or disrupt a lawful meeting." …

Because this case does not involve a traditional public form, like a public street or park, our holding is limited to limited public forums. Thus, we do not consider the constitutionality of R.C. 2917.12 as applied to a traditional public forum….

A procedural twist: This was an appeal from a judicial decision that led to a jury acquittal. That is normally forbidden by the Double Jeopardy Clause, but not here, because the government was just trying to clarify the law going forward, rather than trying to undo the acquittal of Nguyen in particular:

The jury found Nguyen not guilty. The State filed a motion for leave to appeal the trial court's jury instruction, which we granted. Under R.C. 2945.67(A) and App.R. 5(C) a prosecuting attorney "may appeal by leave of the court to which the appeal is taken any … decision, except the final verdict, of the trial court in a criminal case." This provision grants us "discretionary authority to review substantive law rulings … which result in a judgment of acquittal so long as the judgment itself is not appealed." "Even where principles of double jeopardy preclude retrial so that no current controversy exists, appellate review is permitted if 'the underlying legal question is capable of repetition yet evading review.'"

See this post for more on this sort of procedure.

Bradley S. Nicodemus (The Nicodemus Law Office, LPA) represents the City of Nelsonville.

The post "Disturbing Lawful Meeting" Doesn't Need to Be "Substantial" to Be Criminal, at Least if a "Purpose to … Disrupt" Is Shown appeared first on Reason.com.

This is a criminal case arising out of a six-count indictment charging defendant Eric Tabaro Nshimiye with perjury, obstruction of justice, and knowingly concealing material facts in his application for refugee status in the United States.

Nshimiye has moved to dismiss the indictment, asserting that the Rwandan government and its restrictions on speech will prevent the witnesses from speaking freely about the genocide, rendering their testimony unreliable, and that admitting such testimony would violate his due-process rights…. He [also] contends that the government cannot establish that the statements alleged in Counts One and Three were knowingly false or material.

For the following reasons, the motion will be denied….

Eric Tabaro Nshimiye was born and raised in the Republic of Rwanda. He is a Hutu, which is the majority ethnic group in Rwanda. In April 1994, the Rwandan genocide targeting the country's Tutsi ethnic population began. At the time, Nshimiye was enrolled as a medical student at the University of Rwanda in Butare. The government alleges that Nshimiye was an active member of the Movement Revolutionaire National pour le Development ("MRND"), a group that committed genocidal acts in Rwanda in 1994. At some point in 1994 or 1995, Nshimiye fled Rwanda to Kenya.

In May 1995, he applied to become a refugee to the United States and was admitted in December 1995. He became a lawful permanent resident of the United States in 1998 and achieved United States citizenship status in 2003. The government alleges that he knowingly made false statements about his involvement in the Rwandan genocide at each stage of the immigration process.

In April 2019, Nshimiye was called to testify as a defense witness on behalf of Jean Leonard Teganya, his former University classmate and roommate. Teganya was charged with committing perjury and making false statements during immigration proceedings about his membership in the MRND and his actions during the Rwandan genocide. Nshimiye testified under oath before a federal jury….

In Count One, Nshimiye is charged with perjury for testifying that while he and Teganya were University roommates, Teganya did not wear a scarf or hat with MRND insignias. When asked about the apparel, he replied "I don't remember this type of hat," and replied in the negative to questions about Teganya displaying a MRND flag and attending political rallies during university. In Count Two, he is charged with perjury for denying that he lived in Butare during the genocide. When questioned under oath, he stated that "[he] was not in Butare," but rather in Kigali.

In Count Three, Nshimiye is charged with perjury for denying his own involvement in the MRND, including political rallies and trainings. He also denied wearing a scarf, hat, and lapel pin marked with MRND insignias and colors during his time at university. In Count Four, he is charged with perjury for denying his involvement in the genocide while under oath.

In Count Five, Nshimiye is charged with aiding and abetting the obstruction of justice under 18 U.S.C. §§ 1503 and 1502. The government contends that he knowingly concealed material evidence and testified falsely in Teganya….

The court rejected defendant's due process argument:

Defendant … contends that the Rwandan government's strict limitations on free speech, criminalization of political dissenters, and lack of judicial independence will spill over into this case and affect the willingness of the witnesses to speak openly for fear of mistreatment. According to defendant, this would make the testimony of any witness from Rwanda inherently unreliable, which is fundamentally unfair and interferes with his ability to present a defense. That argument falls short, among other reasons, because it does not establish the requisite state action required for a due-process violation.

Broadly, defendant alleges that this prosecution violates the Due Process Clause, which prohibits the federal government from depriving any person of life, liberty, or property without due process of law. To state a claim under the Fifth Amendment, a defendant must show government action that violates procedural or substantive due process.

Defendant alleges that the government is acting as an agent of the Rwandan government by coordinating with Rwandan authorities and making arrangements for witnesses to come to the United States. However, bringing in witnesses from abroad is a normal part of criminal cases. In fact, federal law authorizes cooperation with foreign authorities in gathering testimony.

Moreover, the alleged political influence of the Rwandan government over the witnesses does not constitute state action on the part of the U.S. government. The Due Process Clause applies to misconduct by the United States, not to actions by foreign governments or private actors. To state a due-process violation, a defendant must plausibly allege conduct attributable to U.S. officials, and even then, the bar is quite high. Dismissal is appropriate only where the government conduct is "so outrageous that due process principles would absolutely bar the government from invoking judicial processes." Defendant contends that the U.S. government worked with Rwandan authorities to bring witnesses to testify. But routine practices such as bringing in witnesses from abroad to testify, including international cooperation, do not meet the high bar for due-process violations….

In this case, there is no evidence in the record that the U.S. government has created or contributed to the conditions in Rwanda that defendant describes, interfered with witness testimony, or taken any action to suppress or improperly influence witness testimony. Nor is there any evidence that the U.S. government knowingly intends to call witnesses who will give false testimony. Without more, allegations concerning the reliability of witness testimony raise credibility and evidentiary issues that must be addressed at trial, not in a motion to dismiss.

As to the claims that the government couldn't show that the statements were false and material, the court reasoned:

Nshimiye contends that his testimony was (1) not knowingly false, because the questions concerned events from more than 25 years earlier, and (2) immaterial, because his statements were about trivial facts. When the elements of perjury, including knowledge and materiality, are in dispute, such determinations should be reserved for a jury. The Court cannot find as a matter of law that the statements were immaterial or that defendant could not have had the requisite intent. His arguments that his allegedly false statements reflected faulty memory, not intentional conduct, raise factual issues that are not properly resolved on a motion to dismiss….

Amanda Beck, Christopher R. Looney, and Jason A. Casey, all of the U.S. Attorney's Office (D. Mass.), represent the government.

The post Court Rejects Claim That Rwandan Speech Restrictions Will Prevent Rwandan Witnesses in U.S. Perjury Trial "from Speaking Freely About the Genocide" appeared first on Reason.com.

James Wenzler posted a series of crass statements on LinkedIn while serving as a member of the Coast Guard Auxiliary and depicting himself in uniform. The Auxiliary investigated, told him to stop, and removed him from its ranks after he failed to heed its warning….

James Wenzler joined the Coast Guard Auxiliary in 2007. He held various positions over the years, eventually becoming a Vice Flotilla Commander. Wenzler publicized his affiliation with the organization on LinkedIn. His profile depicted him in uniform and represented that he served as the Auxiliary's Branch Chief for Human Resources.

In May 2022, a member of the public complained to the Auxiliary about Wenzler's LinkedIn posts. One of the posts accused certain Supreme Court Justices of being racist, and another included a crude remark about the Girl Scouts.

Here are the details on the posts, from the district court opinion:

The first [post] was in response to a post congratulating Justice Ketanji Brown Jackson. Wenzler's responsive post read: "Another racist makes the court to join racist Sotom[a]yor and Kag[a]n. Great job America!" The second post was in response to a post commending a girl scout for writing a letter to the editor to complain about an announcement regarding boy and girl scouts that the writer deemed sexist. Wenzler's responsive post read: "Well if you are proving you are just having fun, then you are. To find something sexist is to show you are the sexist. Perhaps the Girl Scouts should actually accomplish something, but alas they just sell cookies."

Back to the Seventh Circuit opinion:

The Auxiliary's investigation resulted in District Commodore Harvey Randall issuing Wenzler a letter of caution. The letter directed Wenzler to remove from social media any photos of himself wearing his uniform and to delete any reference to positions in the Auxiliary. It also instructed Wenzler to confirm compliance with the directive.

Wenzler failed to comply. Indeed, on July 15, he emailed District Commodore Randall, stating, "I disagree with your fake Letter of Caution, and am going to file a complaint against you for your racist and bigoted action against me because I am White. I find your behavior reprehensible."

Wenzler then stayed the course. In August 2022, the Auxiliary found that his LinkedIn profile still depicted him in uniform and listed him as a Branch Chief in the Human Resources Directorate. The Auxiliary also discovered additional insensitive and insulting posts. For example, Wenzler had quipped that the President-elect of Northwestern University, who had just been diagnosed with cancer, did a "horrible job" at the University of Wisconsin—Madison, her former employer, and "end[ed] up with the physical results of what she was" there. A member of the public saw the post and reacted negatively, asking in the comments if the Auxiliary really had put Wenzler in charge of human resources—essentially questioning whether he was fit to serve as a leader.

When the Auxiliary followed up, Wenzler doubled down. He confirmed that he had no intention of adhering to the Auxiliary's social media directive. So the Auxiliary suspended him and began a formal disciplinary process, which resulted in the Coast Guard disenrolling Wenzler….

The court upheld the dismissal:

"[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Our analysis is the same whether the speaker is a volunteer for a government organization or a paid employee…. To determine whether speech is constitutionally protected, we apply the two-step Connick/Pickering test. First we ask whether the speech in question involved a matter of public concern, as opposed to a purely personal interest. If so, we balance the speaker's interest "in commenting upon matters of public concern" against the government's interest "in promoting the efficiency of the public services it performs through its employees." …

Accepting that Wenzler's speech touched on matters of public concern, we focus only on balancing the parties' interests. On the facts before us, the Auxiliary's need for "discipline or harmony among co-workers" and continued "public confidence" dominate.

The nature of an organization informs the deference we give in determining whether its employees' speech will deleteriously impact the organizational mission. The parties have latched onto language in our precedent identifying certain organizations as "paramilitary" and thus entitled to greater deference in this assessment. These cases considered the discretion afforded to law enforcement agencies, correctional centers, and the like. And indeed we deferred to those types of organizations' "own assessment of the risks to security and discipline." But the deference in reasonably determining what type of conduct is detrimental comes from the nature of an organization and its mission. It does not stem from any separate test for whether an organization qualifies under a "paramilitary" label….

We are convinced that the Coast Guard Auxiliary deserves deference in assessing and responding to its members' speech when they hold themselves out as members of the organization while wearing its uniform…. "For command, control, and administrative purposes," Congress gave the Auxiliary a military-like hierarchy consisting of "a national board and staff …, districts, regions, divisions, flotillas, and other organizational elements and units." …

The Auxiliary's possible missions are substantial. As a constitutional matter, the President, as Commander in Chief, may direct the Commandant to request and authorize assistance from the Auxiliary. As a statutory matter, the Auxiliary may "assist the Coast Guard as authorized by the Commandant, in performing any Coast Guard function, power, duty, role, mission, or operation authorized by law." This includes the ability to "conduct a patrol of a waterway" if certain preconditions are met.

And while Auxiliarists may not "engage in direct law enforcement or military missions" or "enforce limited access areas," they "may advise the public regarding compliance with [a] limited access area." Auxiliarists may also serve as "unarmed opposition forces" during training exercises as well as "gather information and data for the development of Coast Guard, State, and local government contingency plans." Congress further recognized that some missions could place Auxiliarists at risk and therefore provided benefits to those who are "physically injured or die[ ] as a result of physical injury incurred while performing any duty" assigned to them by the Coast Guard.

For his part, Wenzler sees the Auxiliary in more limited terms, as only a volunteer "nonmilitary organization" where members elect their own leadership and may not carry weapons. He tells us that the Auxiliary is nothing more than a "government-sponsored fraternity." We cannot agree. By statute, Congress established the Auxiliary and made it a component of the Coast Guard and thus, at least indirectly, answerable to the Commandant of the Coast Guard.

Wenzler also contends that because the Auxiliary lacks the means to compel obedience from its members it should receive no deference in policing their speech. Here, too, we disagree. Even in the actual armed forces of the United States, earning the privilege to lead has always required buy-in from subordinates. Given its statutory scheme and enabling regulations, we are convinced that the Auxiliary deserves deference in its reasonable determinations of how its members' speech will impact its mission….

Given the uncontested facts before us, the Auxiliary could have reasonably determined that Wenzler's speech and actions would be detrimental to the Auxiliary and its reputation. He served in a leadership role and the example he set mattered. The Auxiliary could have reasonably expected that other Auxiliarists would be less likely to work with Wenzler, or at least to work well with him, following his derogatory comments and attacks on others….

"[A] public employer may act based on potential disruption so long as its predictions are reasonable." … Wenzler's statements alarmed at least two members of the public enough to notify the Auxiliary. On this record, the Auxiliary could have been justifiably concerned about negative impacts to its reputation and, in turn, its recruiting and retention. In the long run, its ability to serve the public might suffer, or at least the Auxiliary could have reasonably believed so.

Robert Ying-Tsai Joynt and Leslie K. Herje of the U.S. Attorney's Office (W.D. Wis.) represent defendants.

The post Court Upholds Dismissal of U.S. Coast Guard Auxiliary Officer for "Crass Statements on LinkedIn" "in Uniform" appeared first on Reason.com.