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Days before Virginia's deadline to begin administering the 2026 election for members of the United States House of Representatives, the Supreme Court of Virginia invalidated an amendment to the Commonwealth's Constitution that authorizes the General Assembly to adopt new congressional maps.

The Court purported to find a procedural flaw in the amendment's passage and ratification: that the General Assembly failed to pass the amendment prior to the "next general election" before passing it a second time and referring the amendment to the people for their approval. The basis for that holding was the Court's view that, contrary to the Constitution's own definition of the term "election" to refer to a single day in November, the term instead encompasses the entire period of early voting beginning in September. Based on that novel and manifestly atextual interpretation, the Court overrode the will of the people who ratified the amendment by ordering the Commonwealth to conduct its election with the congressional districts that the people rejected.

A stay is warranted because the decision by the Supreme Court of Virginia is deeply mistaken on two critical issues of federal law with profound practical importance to the Nation. The decision below violates federal law in two separate ways. First, it predicated its interpretation of the Virginia Constitution on a grave misreading of federal law, which expressly fixes a single day for the "election" of Representatives and Delegates to Congress. See 2 U.S.C. § 7. Where a state court's decision on purportedly state-law grounds was "interwoven with the federal law," this Court may intervene to ensure that the state court's decision complies with federal law. Michigan v. Long, 463 U.S. 1032, 1040 (1983). See also Three Affiliated Tribesof Fort Berthold Rsrv. v. Wold Eng'g, P.C., 467 U.S. 138, 153 (1984) (vacating state supreme court decision whose interpretation of state statute "rest[ed] on a misconception of federal law").

Second, by rejecting the plain text of the Virginia Constitution's definition of the term "election" to adopt its own contrary meaning, the Supreme Court of Virginia "transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate federal elections." Moore v. Harper, 600 U.S. 1, 36 (2023) (cleaned up). Either violation is sufficient for this Court to reverse the decision below. Accordingly, there is a "reasonable probability that this Court will grant certiorari and will then reverse the decision below."

The post S. Ct. Denies Stay of Virginia Supreme Court's Redistricting Referendum Decision appeared first on Reason.com.

The Complaint alleges the following:

Defendant James O'Keefe is a conservative political activist whose organization, Defendant O'Keefe Media Group ("OMG"), frequently engages in "sting" operations in which its agents use false identities to arrange meetings with individuals affiliated with government, mainstream media, or progressive organizations, and surreptitiously record them with the goal of publishing the subject's potentially unflattering or controversial statements so as to tarnish the reputations of the subject or their affiliated institution or, in OMG's words, to "expos[e] corruption." Plaintiff, a top secret-cleared information systems security consultant to government agencies, including the Central Intelligence Agency, the National Security Agency and the Office of Director of National Intelligence, fell prey to one such operation in April 2024, during what he thought were two romantic dates with "Jane Doe," who unbeknownst to Plaintiff, was an OMG employee.

Jane Doe contacted Plaintiff via the Bumble dating app and, during both dates, represented herself as a liberal and pressed him for details on his work, including whether certain government agencies may have surveilled or withheld information from then-former President Donald Trump. In response to this questioning, Plaintiff stated, inter alia, that while "anything was possible" and he could not give Jane Doe a straight answer, he "believed" some information was withheld, and that NSA or CIA "could have" surveilled Trump. {The videos posted by OMG, which Defendants link to in their Motion and which the Court may consider as intrinsic to the Complaint, contain statements that are much more explicit than those alleged in the Complaint (and do not appear to be cut or deceptively edited).}

On the second date, Plaintiff noticed what he thought was a recording device in Jane Doe's bag (which she had kept on the table during both dates) and asked her whether he was being recorded. In response, she denied that, but then repeatedly refused to allow him to inspect her bag and shortly left the restaurant. Despite this experience, Fseisi later agreed to meet Jane Doe again in the District of Columbia, where he was instead confronted by O'Keefe and a cameraman.

In early May, 2024, OMG made multiple posts on its website and social media accounts which included video footage from the first and second dates and the O'Keefe confrontation that included Plaintiff's statements to Jane Doe that "we kept information from him [Trump]" (and that the "we" specifically included past CIA Directors Gina Haspel, Mike Pompeo and members of their executive staffs), and showed him responding affirmatively to Jane Doe's question of whether "the intel community used FISA [the Foreign Intelligence Surveillance Act] to spy on Trump and his team." The posts also included O'Keefe's commentary on Plaintiff's statements and other topics related to purported intelligence community activity.

Plaintiff alleges that he suffered various professional repercussions from these publications, chiefly that one or more federal agencies placed a "flag" on his security clearance on an unspecified date, and that he has been rejected from multiple jobs and/or projects on clearance-related grounds, resulting in eight months of unemployment. Plaintiff also alleges, inter alia, "severe emotional distress … [f]ear and terror resulting from death threats directed towards him … [and] damage to his personal and professional reputation."

Plaintiff sued, but the court rejected his misrepresentation claim:

In Food Lion v. Capital Cities/ABC, Inc. (4th Cir. 1999), two ABC news reporters used false identities to obtain jobs at branches of Food Lion's grocery store chain in order to investigate the chain's labor and food handling practices, and after being hired based on misrepresented identities and experience, they used hidden cameras and microphones to gather footage which was aired on a television news broadcast…. [T]he Fourth Circuit … [held that] Food Lion could not recover "publication damages," which it defined as all damages resulting from the news broadcast itself, because those damages were reputational in nature and thus represented an attempt to circumvent the Sullivan standard for defamation claims by public figures….

All of Plaintiff's claimed damages arise out of OMG's publications, however characterized, and are therefore barred under Food Lion. Here, as in Food Lion, OMG's publications, whether defamatory or "a product of misrepresentation," were clearly a form of expression (viz., what Plaintiff said and what OMG claimed he said) and did not constitute the breach of a promise as in Cowles…. [T]he Fourth Circuit held that Food Lion was not entitled to publication damages without meeting the Sullivan standard "to give adequate 'breathing space' to the freedoms protected by the First Amendment." Plaintiff's claims to recover damages, all of which arise out of OMG's publications, are therefore foreclosed by the First Amendment….

And the court rejected plaintiff's Federal Wiretap Act claim; the federal law (unlike the laws of some so-called "two-party consent" states) allows secret recording that's consented to by one party to the communication unless the "communication is intercepted for the purpose of committing any criminal or tortious act in violation of" federal or state law, and the court held this exception doesn't apply here:

Plaintiff alleges that the recordings were made for the tortious purpose of defaming him; but while he concedes that he does not allege a defamation claim or rely on any defamatory aspect of Defendants' public statements, he argues that his misrepresentation and conspiracy allegations provide the tortious purpose for the recordings.

The Purpose Provision requires an intent to commit a future tortious act. Here, the relied-upon misrepresentations all occurred before the publication of the recordings (viz: chiefly during the Bumble dating app messaging between Plaintiff and Jane Doe) and were part and parcel of Defendants' scheme to obtain the recordings, not the purpose for which the recordings were intended to be used. Because Plaintiff has not otherwise plausibly alleged that Defendants intercepted his oral communications with the purpose of committing a subsequent tort or criminal offense, his wiretapping claim must be dismissed.

Benjamin Barr and Stephen Klein (Barr & Klein PLLC), and Earl N. "Trey" Mayfield, III and Dan Backer (Chalmers, Adams, Backer & Wallen, LLC) represent defendants.

The post Secret Recording at Pretend Date by O'Keefe Media Wasn't Tortious, Court Holds appeared first on Reason.com.

Last week, I recorded a We the People podcast episode for the National Constitution Center discussing the increased volume of applications and orders on the Supreme Court's interim docket, aka the "shadow docket," with Professor Steven Vladeck of the Georgetown Law Center, moderated by Julie Silverbrook. The podcast has now been released as is available for listen here, or on your podcast platform of choice.

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From Payne v. State, decided last week, in an opinion by Justice Benjamin Land:

Hannah Payne was sentenced to life in prison plus 13 years for the murder and false imprisonment of Kenneth Herring and the possession of a firearm during the commission of a felony. In response to Payne's motion for new trial, the assistant district attorney assigned to the case, Deborah Leslie, filed a brief that contained non-existent cases and cases that do not stand for the proposition asserted in the brief.

In an order largely prepared by ADA Leslie, the trial court denied Payne's motion for new trial. That order contained citations to non-existent cases and cases that do not stand for the proposition asserted in the order.

In response to Payne's appeal, ADA Leslie once again cited cases that do not stand for the proposition asserted. As a result of these filings, we have been sidetracked from our obligation of resolving the merits of Payne's appeal and have had to devote significant time and resources to the discovery of this misconduct and deciding what to do about it. As outlined below, we admonish ADA Leslie and the Clayton County District Attorney's office; we sanction ADA Leslie and suspend her privilege to practice in our Court; and we vacate the trial court's order denying Payne's motion for new trial and remand the case to the trial court with instruction that it issue a new order that does not contain the citation of fake cases or other misattributed case citations….

[On appeal,] ADA Leslie acknowledged that the case citations generated by artificial intelligence software were not independently verified before inclusion in the State's briefs or proposed order and represented that she had implemented safeguards to ensure that fictitious or misattributed authorities would not appear in any future filings. In addition to the nine cases listed in this Court's March 20, 2025, order, ADA Leslie identified twelve additional cases in her briefing before the trial court that she acknowledges were generated by artificial intelligence software, were not independently verified, and do not stand for the propositions for which they were offered….

We admonish ADA Leslie and the Clayton County District Attorney's Office for failing to verify the accuracy of case citations and then including a substantial number of inaccurate case citations in their filings before this Court and the trial court. See Supreme Court Rule 7 ("Parties and counsel are responsible for ensuring that their filings with the Court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require.").

{We acknowledge the Clayton County District Attorney's March 27, 2026, letter to this Court, in which the District Attorney apologized for the post-trial filings in this case, stated that her office would be "expanding [its] internet and social media use policies to specifically address the use of artificial intelligence," and indicated that "strict disciplinary action ha[d] been taken against" ADA Leslie. The dissent relies upon this letter in support of its position that we should not admonish the District Attorney. First, we have not admonished the District Attorney individually but rather admonished her office, since ADA Leslie submitted the filings at issue on behalf of that office. Second, we are puzzled by the dissent's reference to the District Attorney as the "elected District Attorney." All district attorneys in Georgia are elected, and that status has no bearing on their obligations to the courts in which they practice or our obligations when faced with misconduct arising out of their offices.} …

We hereby suspend ADA Deborah Leslie's privilege to practice before the Supreme Court of Georgia for six months…. {The sanctions imposed by this Court are case-specific and based on the information and material in the record. Nothing stated herein shall be construed to affect, in any manner, any disciplinary proceedings that may be brought by the State Bar of Georgia, the Judicial Qualifications Commission, or any other entity.} …

Because the trial court's September 12, 2025, order denying Payne's motion for new trial contains numerous fictitious or misattributed case citations, we hereby vacate the trial court's order and remand the case to the trial court with instructions that it prepare and issue a new order on Payne's motion for new trial. The trial court's order shall not contain any fictitious or misattributed case citations, and given the unfortunate circumstances that have led us to this point, the trial court's order shall not be prepared by counsel for either party.

We strongly encourage trial courts to carefully review proposed orders with the understanding that artificial intelligence software, with all of its potential risks and benefits, may have been used to prepare such proposed orders….

Justice Shawn Ellen LaGrua, joined by Justice Verda Colvin, dissented "as to the admonishment of the elected Clayton County District Attorney":

In this opinion, the majority admonishes and sanctions the assistant district attorney who represents the State in this case, gives direction to the presiding judge regarding the issuance of a new order, and admonishes the elected District Attorney. While I recognize that the District Attorney's name appears on the briefs and she ultimately bears responsibility for the actions of those who work for her, I also understand that she must be able to trust and rely upon her staff to do their jobs ethically and professionally. Every assistant district attorney takes an oath to that effect.

In this instance, the District Attorney sent a lengthy letter to this Court, copied to opposing counsel, apologizing for the conduct of the assistant district attorney and outlining the severe sanctions imposed on that attorney for her actions in this case. Additionally, the District Attorney assured this Court that she is immediately implementing policies and procedures to keep this from happening in the future. We have absolutely no reason to doubt the veracity of that letter. And I find such proactive disciplinary and preventative measures to be more than sufficient under the circumstances.

Based on the foregoing, I vehemently decline to admonish the elected Clayton County District Attorney and respectfully dissent to that portion of the majority opinion.

The post Georgia High Court Admonishes D.A.'s Office, Over "Vehement" Dissent, for Role in AI Hallucinations in Court Order appeared first on Reason.com.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Good news! With near-unanimous bipartisan support, the Colorado General Assembly this week passed HB26-1250, a civil forfeiture reform bill that closes a longstanding loophole in Colorado law allowing property to be forfeited without a criminal conviction. The bill also makes Colorado one of the first states in the nation to grant forfeiture defendants the right to an attorney in civil cases. "Even after significant reforms in recent years, Colorado's civil forfeiture laws still permit the government to permanently confiscate property without a criminal conviction," said Alasdair Whitney, legislative counsel at the Institute for Justice. "This bill closes that loophole for good, and it also makes Colorado the first state in the nation to grant property owners the right to an attorney in the forfeiture proceeding, just like there is in criminal court."

New on the Short Circuit podcast: Get in loser, we're going shopping. With Roy Moore! (No, he's not on the show. But we discuss how he was allegedly at the mall. A lot. Along with "Santa's helper.")

1. New York's Chancellor Kent (1811): "It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect." And the same is true in our new land of liberty. New York's highest court (2025): No, actually it's totes fine. Second Circuit (2026): And constitutional in all the ways.
2. The American Association of University Professors and the American Federation of Teachers sue the feds to restore grants withheld from Columbia University. The unions move for a preliminary injunction, lose, and appeal to the Second Circuit. While the appeal is pending, the unions and the feds strike a deal and the unions withdraw their claims, mooting the case. Should the denial of the preliminary injunction be vacated? Second Circuit: Yes, the parties stipulated that plaintiffs didn't cause the mootness. Dissent: But we all know that they kinda did.
3. Retailers Bass Pro Shops and Cabela's use a JavaScript code on their websites that tracks your mouse movements, clicks, scrolls, zooms, window resizes, keystrokes, and text entries, allowing them to build digital "fingerprints" of online shoppers. Aggrieved shoppers across the country sue, and their cases are consolidated in the E.D. Pa., which dismisses their claims. Third Circuit: Which was generally correct for the folks who merely browsed the websites. But the two plaintiffs who made purchases—a camp chair and a belt—have standing, because this is a little bit like the common-law tort of "intrusion upon seclusion."
4. John Hancock routes customers' calls through Amazon and another tech company, which authenticate callers based on their biometric voiceprints. Customers sue, alleging that Illinois law bans collecting their voiceprints without their consent. After a circuitous route through the state and federal courts, the Third Circuit concludes that Illinois's law exempts financial institutions—an exemption the tech companies can invoke when authenticating people engaging in financial transactions.
5. Company buys contracts for motor vehicle payments, which provide it collateral and the right to take possession when the borrower defaults. At issue here are two motorcycle contracts it purchased in South Carolina, one ridden by a man killed in front of a Waffle House and one ridden by a man allegedly affiliated with Hells Angels who was charged with the murder. Sheriff seizes both motorcycles as material evidence, refuses to return to the company. Fourth Circuit: The Fourth Amendment defines the process due under the Fourteenth Amendment, and this is all above board.
6. Virginia undergraduate at Liberty University applies for the Virginia Tuition Assistance Grant Program. But when she changes her major from "Music Education: Choral" to "Youth Ministries" and, later, to "Music & Worship," she's informed she is no longer eligible for the grant, which excludes "religious training or theological education." Fourth Circuit: Too bad for her, the Supreme Court's 2004 ruling in Locke v. Davey—a nearly identical case upholding a similar Washington prohibition—is still good law. Concurrence: It is also a "stain on our Free Exercise jurisprudence" that the Supreme Court should "formally bur[y]."
7. As part of a wide and long-running program, in the 1890s the U.S. gov't forcibly removed two Native American boys from their homes and installed them at the Carlisle Indian Industrial School in Pennsylvania. Things did not go well. both were buried over the next few years. Their bodies were later moved to a military cemetery where a sign now notes their historical significance. In 2023, their tribe asked to repatriate the remains under a 1990 law. Fourth Circuit: Repatriation is required as the remains are a "holding or collection." Dissent: A graveyard is neither.
8. Michigan man, arrested following domestic disturbance, admits to having ingested several pills of unknown identity. He's taken to the emergency room, which medically clears him for incarceration. While in pre-trial detention, he becomes lethargic and vomits. At some point in the early morning hours, he dies from what is later determined to be an overdose of antidepressants. Deliberate indifference? Sixth Circuit: Denial of qualified immunity reversed. He may have been unwell, but his need for emergency medical care was not so obvious that a layperson can be held liable.
9. One reason for reading a long novel is that after years of everyone's trials and tribulations you can enjoy the villains getting their comeuppance. For example, Becky Sharp is looking pretty nifty halfway through Vanity Fair but (spoiler alert) not so sharp at the end. Sadly, civil rights stories do not always follow the same arc. But, as told by the Sixth Circuit, a $10 million judgment for prosecutorial misconduct in Detroit—concerning a guy who was framed and wrongly spent years behind bars—is roughly equivalent.
10. An American citizen who travels to Syria to join ISIS and in fact fights on the front lines against American-supported Kurdish troops is eventually convicted of providing material support to a terrorist organization. District court: But this wasn't, like, terrorism-terrorism. This guy just joined an army. Sixth Circuit: Shooting people on behalf of ISIS is pretty much the definition of terrorism. Back he goes for resentencing!
11. The circuit splitting continues. Sixth Circuit (2-1): Non-citizens in the country who were never lawfully admitted to the country are not subject to mandatory detention without bond pending their removal proceedings.
12. There's a lot of juicy morsels in this Sixth Circuit opinion about a First Amendment challenge to some of Kentucky's judicial-campaigning rules brought by a pair of erstwhile candidates. Standing. Voluntary cessation. A dash of Pennhurst. Some Younger-abstention talk. No seriously, guys, this is a good one.
13. Wisconsin towing company allegedly overcharges and fails to have its employees wear reflective safety vests. It's summarily kicked off the county's approved towing list. A due process violation? Seventh Circuit: Nope. The phrase is "deprive any person of … property,without due process of law." And there's no property interest in just being on the dispatch list. Maybe under certain circumstances, but not here. Dismissal affirmed.
14. For some clever lawyering, check out this 2-1 decision from the Eighth Circuit. In 2024, the Supreme Court held that for a certain enhanced mandatory minimum to apply, a jury, not a judge, must find the predicate facts about a prior serious drug conviction. But a statute, 21 U.S.C. § 851, says a defendant can ask those facts to be found by a judge. Drug dealer: So that means no one can make the finding, and the enhancement can't apply! Gov't: That seems like it should be wrong. Eighth Circuit: He's right! Dissent: Too clever by half. We should just remand to a jury.
15. Defendant in a North Dakota fraud trial wasn't permitted to introduce statements from a recording of the gov't preparing its star witness, a co-fraudster who received a sweetheart plea deal. Eighth Circuit: Because that video arguably showed the witness was angry with the defendant and the prosecutor suggested his account to him, it should have been allowed as relevant evidence about the witness's bias and credibility. New trial.
16. In an Idaho tax-fraud trial, just as the jury is on the cusp of a verdict, one juror informs the judge that another juror made a racist comment. After interviewing all the jurors, the judge excuses the allegedly racist juror, and the remaining 11 return a guilty verdict on several charges. Ninth Circuit: There's a strong presumption of prejudice when a racially biased juror is involved in deliberations, one the gov't didn't overcome here. New trial. Dissent: Most jurors didn't even hear the offending comment, and they all said they weren't influenced by it. The verdict should stand.
17. Two Georgia voters compare USPS change-of-address data to voter registrations, then sue the state alleging that it's violating federal law by not kicking movers off the voter rolls. Eleventh Circuit: Even if your analyses "shook [your] faith in the electoral process" and "undermined [your] confidence," that is not a sufficiently particularized injury to confer standing.
18. And in en banc news, the Ninth Circuit will not reconsider its decision that the University of Washington violated the First Amendment by punishing a professor for mocking land acknowledgements in his course syllabus.
19. And in further en banc news, the Tenth Circuit will not reconsider its decision that an officer did not violate the Fourth Amendment by peeping through a one-inch gap in a motel room's blinds.
20. And in extended en banc news, the Eleventh Circuit will reconsider its decision that courts have the power to enforce the Takings Clause's just-compensation requirement—a question on which IJ has expressed some firmly held views.

New case! After an Omaha family christened their speakeasy bar "The Barber Shop Blackstone" in honor of their dad ("Don the Barber" DiGiacomo), the Nebraska Board of Barber Examiners threatened them with criminal punishment. Why? Because—this is not a joke—the Board claims only licensed barbers can use the words "barber shop" or display a striped barber pole. This week IJ joined the family's already filed federal lawsuit. And while it continues, they're unveiling a temporary new name: The Censored Shop Blackstone, to avoid potentially ruinous fines and even jail time.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.

On July 18, 2025, President Donald J. Trump filed his Complaint … for defamation based on an article in the Wall Street Journal … linking President Trump to convicted sex offender Jeffrey Epstein. On April 13, 2026, on Defendants' motion, the Court dismissed the Complaint without prejudice based on President Trump's failure to plausibly allege that Defendants acted with actual malice …. [See this post on the dismissal. -EV]

On April 14, 2026, President Trump filed the Motion, requesting leave to conduct limited discovery on (1) "[h]ow each Defendant acted with actual malice"; (2) "[h]ow Defendants purposefully avoided the truth of the statements at issue"; and (3) "[h]ow Defendants allegedly obtained the letter and supposedly verified its contents, including Plaintiff's signature." …

"As the Supreme Court has noted, … the doors of discovery do not unlock for a plaintiff armed with nothing more than conclusions." "Rather, discovery follows 'the filing of a well-pleaded complaint. [Surely,] [i]t is not a device to enable the plaintiff," like President Trump here, "to make a case when his complaint has failed to state a claim.'"

Moreover, President Trump's request to conduct discovery on issues related to actual malice before filing a well-pleaded complaint contravenes the purpose behind the actual malice standard. As detailed in the Dismissal Order, in defamation cases involving a public figure plaintiff:

[T]here is a powerful interest in ensuring that free speech is not unduly burdened by the necessity of defending expensive yet groundless litigation. Indeed, the actual malice standard was designed to allow publishers the "breathing space" needed to ensure robust reporting on public figures and events. Forcing publishers to defend inappropriate suits through expensive discovery proceedings in all cases would constrict that breathing space in exactly the manner the actual malice standard was intended to prevent. The costs and efforts required to defend a lawsuit through that stage of litigation could chill free speech nearly as effectively as the absence of the actual malice standard altogether.

Michel v. NYP Holdings, Inc. (11th Cir. 2016) (quoting New York Times v. Sullivan (1964)). Thus, allowing President Trump to conduct discovery on actual malice, where his initial attempt at pleading a defamation claim fell short, is exactly the type of "expensive yet groundless litigation" the Eleventh Circuit has cautioned against.

Amanda B. Levine, Katherine M. Bolger, and Meenakshi Krishnan (Davis Wright Tremaine LLP), Andrew J Levander and Steven A. Engel (Dechert LLP), and Eric Corey Edison, George S. LeMieux, and Timothy John McGinn, Jr. (Gunster Yoakley & Stewart, P.A.) represent defendants.

The post No Discovery into Alleged "Actual Malice" in Trump's Lawsuit Against WSJ Over Jeffrey Epstein Birthday Letter Story appeared first on Reason.com.

Yesterday evening, as expected, the Supreme Court granted mifepristone manufacturers' requests for a stay of an order of the U.S. Court of Appeals for the Fifth Circuit blocking a 2023 Food and Drug Administration regulation allowing doctors to prescribe mifepristone as an abortifacient via telemedicine. The order was issued shortly after the expiration of an administrative stay entered, and then extended, by Justice Alito. Justices Thomas and Alito each dissented. There are no other recorded votes.

As is common in such situations, the order in Danco Laboratories v. Louisiana stays that of the lower court pending the disposition of the appeal and any subsequent petition for certiorari. This means the case will find its way back to the Court, perhaps even later next term.

The order was unsurprising because, as I noted here, the Fifth Circuit's order blocked the implementation of a federal regulation on questionable grounds. Louisiana's suit is based upon an aggressive and somewhat speculative theory of standing and the Fifth Circuit's order relies upon faulty reasoning from a prior, since-vacated, opinion from the prior round of mifepristone litigation. Thus there were at least two stay considerations weighing strongly in the manufacturers' favor: The Fifth Circuit had blocked a federal regulation and the manufacturers have a strong argument they are likely to prevail on the merits.

That said, Justices Thomas and Alito make some weighty points in their defense, and the issuance of a stay here was never certain. As I noted last week, while an army of amici filed briefs with the Court, the federal government did not. The federal government neither sought a stay from the Court nor filed a brief supporting the manufacturers' defense of the FDA's rule. So while blocking a regulation may presumptively constitute irreparable harm to the federal government, it is not clear that such concerns should carry much weight if the federal government does not raise them. The federal government is not obligated to defend every agency regulation at every turn, even against questionable judgments. (And, for what is worth, this is not the first time this has happened with the FDA. For example, the agency dropped its appeal to  American Association of Pediatrics v. FDA, in which a district court accepted a questionable standing claim and forced the agency to regulate vaping products more aggressively.)

Absent an FDA filing, the manufacturers had to establish irreparable harm on their own, and this is where Justices Thomas and Alito found their stay requests wanting. Neither found the manufacturers' concerns about reduced mifepristone sales particularly compelling. Nor was either moved by concerns that the Fifth Circuit order would make it more difficult to obtain mifepristone in jurisdictions that (unlike Louisiana) allow its use.

As Justice Thomas noted, federal law (the Comstock Act) already prohibits the distribution of abortifacients via the mail. Therefore, he reasoned, the manufacturers were effectively complaining that the Fifth Circuit order would deprive them of "lost profits from their criminal enterprise." I take Justice Thomas' point in the Comstock Act, which remains on the books even if it is never enforced, but the FDA order at issue is not limited to mail-order prescriptions.

Justice Alito made some similar points, while also stressing that mifepristone manufacturers are well aware that the FDA's 2023 order facilitates the provision of mifepristone in jurisdictions where its use to terminate pregnancies is illegal, that the FDA has acknowledged concerns about the analyses upon which the 2023 regulation was based, and that the manufacturers' claim of irreparable harm is undermined by the fact that the FDA has given no indication it would take any enforcement action against manufacturers were the 2023 rule stayed, and it could not be forced to take such actions by federal courts. Prescribing doctors and potential users of mifepristone may be affected, but neither were parties to the case.

Justice Alito's dissent validates Louisiana's concern that it's post-Dobbs ability to enforce its own abortion laws has been undermined by "certain medical providers, private organizations, and States that abhor" its laws. No doubt this is true. If other states and the federal government allow the distribution of something, whether mifepristone or marijuana, other states may have a more difficult time enforcing their own prohibitions. The federal government has the unquestioned power to limit the distribution of mifepristone into states where its use is barred, but it has chosen not to, and the FDA is not required to base its regulations on such concerns. [As for what other states can or cannot do, I recommend Professor Steve Sachs' comments at this Federalist Society panel on abortion law post-Dobbs]

Justice Alito also paused to note that the Court's issuance of an "unreasoned order" granting stays of a lower court action, no doubt to tweak those (both on and off the Court) who routinely complain about "shadow docket" orders issued without explanation (and, in this case, on behalf of private corporations too). He can be forgiven for thinking that many complaints about "shadow docket" orders are driven as much or more by disagreements on the merits as they are concerns about process.

The post Supreme Court "Shadow Docket" Order Preserves Mifepristone Via Telemedicine--For Now appeared first on Reason.com.

On May 9, 2013, the plaintiff and the defendants appeared for a hearing in the Family Court, Richmond County, relating to a child support proceeding between the defendant John Libertella (hereinafter John) and his former wife. The plaintiff, a lawyer, appeared on behalf of his sister-in-law, John's former wife. John was accompanied by his father, the defendant Giovanni Libertella. As the parties left the hearing, they were involved in a verbal altercation, which John video-recorded on his phone. The defendants told a court officer that the plaintiff punched John in the face and that John wanted the police called. The police were called, and the plaintiff was arrested.

In November 2013, the District Attorney's office dismissed the charges against the plaintiff. Multiple news outlets reported on the altercation and the plaintiff's subsequent arrest.

The plaintiff commenced this action against the defendants asserting, inter alia, causes of action sounding in defamation per se, false arrest, and malicious prosecution. After a trial, the jury returned a verdict in favor of the plaintiff and against both defendants on the cause of action alleging defamation per se and against John on the causes of action alleging false arrest and malicious prosecution….

The court upheld the finding of liability:

[B]ased on the evidence adduced by the plaintiff at trial, there was a valid line of reasoning and permissible inferences from which the jury could have concluded that the statements made by the defendants were defamatory per se, because they falsely accused the plaintiff of a serious crime, attempted assault….

"To be held liable for false arrest, a [civilian] defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his or her own volition." "[O]ne who wrongfully accuses another of criminal conduct and induces or procures that person's arrest may be liable for false arrest."

In order to recover damages for malicious prosecution, a plaintiff must establish "that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice." "A civilian defendant who merely provides information to law enforcement authorities, who are free to exercise their own independent judgment as to whether to make an arrest and file criminal charges, will not be held liable for false arrest or malicious prosecution." "[T]o be held liable for malicious prosecution, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." "Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or the District Attorney."

Here, the record demonstrated that the plaintiff would not have been arrested but for the defendants' false statements that the plaintiff had punched John, as well as John's statements importuning the police to arrest the plaintiff. John instigated the arrest, making the police his agents in confining the plaintiff, based upon false information that the plaintiff had assaulted him. Furthermore, the criminal proceeding was instituted by the District Attorney based upon, among other things, false information given by John.

But the court concluded that the jury's damages awards ($10M in compensatory damages and $250K in punitives) were excessive, and ordered a new trial unless the plaintiff agreed to reducing the damages to $400K in compensatory damages and $100K in punitives.

The post $500K Damages for False Report of Assault to Police appeared first on Reason.com.

Plaintiff Dr. Idris Robinson is a non-tenured, but tenure track Assistant Professor of Philosophy at Texas State University. On June 29, 2024, Dr. Robinson delivered a speech in Asheville, North Carolina titled "Strategic Lessons from the Palestinian Resistance" ("Asheville Speech"). Professor Robinson in no way affiliated the talk with Texas State University. During the Asheville Speech, audience members who disagreed with Dr. Robinson's views attempted to livestream the event. A scuffle broke out. The police report documenting the incident does not identify Dr. Robinson as a suspect or witness. Defendants do not contend that Dr. Robinson incited or encouraged the violence.

Dr. Robinson resumed teaching in the fall without incident. After the 2024 fall semester, and again in March 2025, Dr. Robinson received excellent performance reviews. ECF No. 1-3 at 74 ("Dr. Robinson is a fantastic colleague, excellent in all areas of review. Worthy of Merit."); id. at 109 (2024-2025 3rd Year Tenure-Track Reappointment) (noting that the Associate Provost's Action Recommendation is to reappoint Dr. Robinson for one-year and that Dr. Robinson is "making good progress towards tenure").

On June 5, 2025, individuals who disagreed with the content of Dr. Robinson's Asheville Speech began calling for Dr. Robinson's firing on Instagram. That day, due to the posts, Texas State University began receiving complaints about Dr. Robinson. One day later, Dr. Robinson was placed on administrative leave due to "multiple complaints and allegations regarding an incident that occurred in the summer of 2024." In July 2025, Dr. Robinson was informed that "the decision has been reached not to extend your contract beyond the 2025-2026 academic year…." …

Dr. Robinson contends the University's non-renewal decision was due to the content of the Asheville Speech, which Dr. Robinson contends violates his First Amendment Rights. To date, Defendants have not offered any other reason for Dr. Robinson's non-renewal, nor do Defendants refute Dr. Robinson's contention that he was not renewed due to the Asheville Speech….

The court issued a preliminary injunction requiring that Robinson be reinstated; an excerpt from the analysis:

To demonstrate a prima facie case for a First Amendment retaliation claim, a plaintiff must establish that: "(1) he suffered an adverse employment [action]; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighed the governmental defendant's interest in promoting efficiency; and (4) the protected speech motivated the defendant's conduct." Here, retaliation elements 2, 3, and 4 are not disputed by Defendants. {Further, Defendants do not contend that the Asheville Speech's content fell within the First Amendment's "permitted restrictions" [referring to exceptions such as for incitement, true threats, and the like -EV].} The Court, having reviewed Dr. Robinson's evidence, finds that he has met his burden of persuasion for retaliation elements 2, 3, and 4. Dr. Robinson satisfied element 2 because the Israel-Palestine conflict is a matter of public concern. Dr. Robinson satisfied element 3 because the Asheville Speech did not disrupt university operations. Dr. Robinson satisfied element 4 because Defendants essentially admit, and the timeline confirms, that Dr. Robinson's speech motivated Defendants' decision not to renew his contract. Thus, the only question remaining for the Court is whether Dr. Robinson suffered an adverse employment action….

The Fifth Circuit has elaborated what constitutes an adverse employment action in the context of a First Amendment retaliation claim: "Adverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands." … According to Defendants, "non-renewal of a term contract does not appear on" [this] list and, thus, is not an adverse employment action…. [But] Defendants' refusal to renew is materially indistinguishable with a refusal to hire or a discharge …. The Fifth Circuit has confirmed that a refusal to re-appoint can constitute an adverse employment action equal to a discharge….

JT Morris (Foundation for Individual Rights and Expression) and Michael Thad Allen and Samantha Harris (Allen Harris PLLC) represent plaintiff.

The post Court Orders Reinstatement of Untenured Professor Allegedly Non-Renewed for Speech About "the Palestinian Resistance" appeared first on Reason.com.

I am happy to pass along a guest post from Professors Bruce A. Green and Rebecca Roiphe, who are experts in the ethical standards for prosecutors. They wrote about a recent case from Santa Clara, California, in which a judge disqualified District Attorney Jeff Rosen from prosecuting pro-Palestinian protestors who occupied the Stanford University.

When New York Attorney General Letitia James was campaigning for office, she called Donald Trump an "illegitimate president" and vowed to investigate him, his family, and anyone in his orbit. New York District Attorney Alvin Bragg was less explicit. While he emphasized his experience investigating Trump's family and promised to continue his predecessor's investigation into Trump, he also stated that he would follow the facts and law. Courts allowed James and Bragg to oversee cases against Trump, despite the fact that Trump himself along with some observers used these statements to claim that they were politically motivated.

In contrast, a California state judge recently concluded that an elected prosecutor went too far in campaigning for office and could no longer be trusted to make prosecutorial decisions free of political bias. On May 7, a Santa Clara County judge disqualified District Attorney Jeff Rosen and his entire office from prosecuting pro-Palestinian protestors who occupied the Stanford University President's office in 2024, citing campaign statements Rosen made the previous December while the case was pending. Specifically, Rosen proclaimed his commitment to the State of Israel and the Jewish people and included a link to information about the prosecution.  According to reporting, the judge found it problematic that Rosen had referred to the protests as antisemitic even though the individuals were not charged with hate crimes.

Local prosecutors are often elected, so their political engagement is unavoidable. Although prosecutors are not expected to be as disinterested as judges, they are not supposed to have a political axe to grind when they decide whom to investigate and prosecute. This raises the question of how elected prosecutors can properly campaign for office without jeopardizing public faith in high profile prosecutions.  What sort of statements provides appropriate information to the electorate and which cross a line?  Which campaign messages warrant disqualification because the prosecutor will appear to have prejudged the case before reviewing all the evidence? The law is unsettled and varies among different jurisdictions. There are, nonetheless, certain principles that ought to guide elected prosecutors, allowing them to communicate their priorities to the public without expressing prejudice. When they come close to the line, courts should use disqualification sparingly, reserving it for cases of clear bias.

Elected prosecutors are expected to implement the priorities and values of the community, and so voters are entitled to know where candidates stand on certain issues. For example, D.A. Rosen's statements about fighting antisemitism are not only permissible but also appropriate. If the community wants its elected prosecutor to protect the Jewish community, they know that Rosen is on it. But commitments to prosecute particular cases and pursue particular individuals are problematic because they might reflect actual bias and undermine public faith in the ultimate prosecutions. It was unclear whether the link on Rosen's campaign page or his fundraiser emails crossed this line, and the trial judge had considerable discretion to make that call based on the facts presented by both sides.

Courts rarely find that prosecutors' statements on the campaign trail are such obvious expressions of bias against a particular individual that the prosecutor cannot be trusted to make decisions in the case based on the facts and the law.  Unlike other officials, who represent their constituency's policy interests, prosecutors have a duty to seek justice. While this may seem like a vague mandate, it is not meaningless. Prosecutors are required to protect the innocent, prosecute the guilty, treat similar cases similarly, and seek proportionate punishment.  Sometimes, this requires resisting, not complying with, popular sentiment.  Courts generally assume prosecutors will abide by this obligation even in high-profile or politically charged cases, but they police the outer limits.

Campaign statements that reflect a willingness to cave to public pressure, or to compromise these professional obligations for popularity, are troubling.  Even if the prosecutor would act independently once elected, these sorts of statements might well lead the public to lose faith in the elected prosecutor's decision-making.  Even if we take Alvin Bragg at his word that he would follow the facts and law, his public statements touting his past cases against Trump and his family might give the public pause. They provided fodder to Trump's sympathizers, including in Congress, who questioned the validity of the charges Bragg's office brought against Trump.  The cost to the legitimacy of the system is itself concerning, even if prosecutors live up to their professional obligations.

The question remains whether trial courts can and should do anything to address this problem.  As we have previously discussed, courts have varying degrees of discretion to disqualify elected prosecutors based on conflicts of interest.  In Texas, a trial judge may disqualify a prosecutor only if the "conflict rises to the level of a due-process violation," whereas California courts take a much broader view of their power. But even in California, courts are hesitant to disqualify an elected prosecutor, thereby depriving the electorate of its chosen representative.  All prosecutors have beliefs and personal ambitions, and courts can do little to address these even if they could interfere with impartiality.  For example, a court would likely disqualify a prosecutor who obtained a book or movie contract regarding a pending case but can do little about prosecutors' general desire to be associated with a high-profile case and to enter the public spotlight.

If the prosecutor in the Santa Clara case had done nothing more than vow to oppose antisemitism and to protect the Jewish community from criminal attack, there would have been no plausible ground to disqualify him. Prosecutors, like judges, are expected to be able to put aside even strongly felt ideological or personal beliefs to pursue justice in individual cases. The fact that Rosen is personally committed to the state of Israel, that he equates anti-Zionism with antisemitism, or antisemitism with anti-Americanism, are all beside the point. Our system assumes he can be fair in individual cases, even when they touch on these topics.

To the extent that Rosen's campaign material and fundraiser emails addressed the pending case against the protesters and implied that he had some animus toward the defendants in this case or had prejudged how to handle the case before reviewing the evidence, then the judge's decision to disqualify Rosen would make more sense.  The trial court in Rosen's case considered an appellate decision from four years earlier, in which the elected prosecutor of San Luis Obispo was disqualified from prosecuting a Black Lives Matter protester after the prosecutor successfully campaigned based on opposition to that movement.  The appellate court upheld the disqualification decision, endorsing the trial judge's observation that while defendants are not "entitled to a prosecutor to which they are politically or socially or ideologically aligned," they are "entitled to a prosecution not clouded by political or personal advantage to the prosecutor."  This case is an unusual attempt to rein in political bias, but perhaps reflects a growing desire to protect the legitimacy of prosecutions in the face of growing allegations of weaponization.

The lesson is that candidates for office as a prosecutor, like judges, should keep their own counsel if they have views on pending cases. This may not be easy, as the public often focuses disproportionately on high-profile investigations. Aspiring district attorneys can address the policies implicated in these cases but should otherwise confine themselves to discussing their views of criminal law policy and their approach to prosecution in more general terms. Adhering to these guidelines is especially important as the public grows increasingly skeptical of disinterested prosecution.

The post Guest Post: State Prosecutors, Protests, and Politics as Usual? appeared first on Reason.com.

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Enough about the merits of Danco. Let's talk about the formatting.  Usually when an opinion has one footnote, it is not numbered. Rather, there is simply an asterisk. But when there are two or more footnotes, they are numbered.

Justice Alito's solo dissent has two footnotes. But they are not numbered. The first footnote is an asterisk and the second footnote is a dagger.

What happened? This is a solo dissent, and there is no majority opinion. It's not likely Alito had to reply to some argument raised by another Justice. Maybe Justice Alito wanted to use a dagger note? I'm sure someone will have an answer here. Please email me!

The post A Footnote To <i>Danco</i>? appeared first on Reason.com.

Randy Barnett and I are nearing completion of the Fifth Edition of our Constitutional Law casebook. We are still waiting for the last batch of cases from June to finalize a few chapters. Our last edition was published in 2021. Needless to say, a lot has changed, though much of the book remains the same. Still, this experience has reinforced the difference between how students are taught constitutional law, and how practitioners see it on the ground.

In the classroom, we read the landmark decisions that changed the law of the land: Bruen laid down a rigorous test to review gun control laws; Dobbs returned the abortion issue to the states; Students for Fair Admission all-but eliminated affirmative action; and so on. Students who read these decisions from 2022 and 2023 might get the sense that constitutional law changed overnight with respect to guns, abortion, and racial preferences. The reality, however, is far different.

Barely a year after Bruen, Rahimi walked back the "analogue" test. Gun laws have remained virtually unchanged. Blue states have allowed shall-issue carry regimes with many obstructions and burdens. Moreover, the Supreme Court has turned away every single case about the scope of sensitive places and the types of arms covered by the Second Amendment. The two cases argued this term (Hemani and Wolford) present fringe issues that will matter little to gun owners.

Ditto for affirmative action. In the wake of SFFA, the Court turned away Boston Parent Coalition for Academic Excellence Corp. v. The School Committee For the City of Boston (2024). This case cleanly presented a challenge to an affirmative action policy at an elite public school that was evading SFFA. Justices Thomas and Alito would have granted cert . Justices Gorsuch, Kavanaugh, and Barrett were silent. As documented in a new Manhattan Institute report, the rates of racial minorities admitted to elite colleges has remained roughly the same, despite doomsday predictions from Harvard and other groups. Remember Justice Kagan's hypothetical about what would happen if zero black students attended Harvard? To my mind, these numbers suggest that universities developed clever ways to evade SFFA, though the data is not clear. I doubt the Supreme Court will re-enter this fray.

The abortion issues is a bit more complex, but the reality is the same. After Dobbs, doctors began sending mifepristone to red states, and blue states enacted shield laws to immunize these doctors. Dobbs held that abortion would now be an issue for the states to decide, however pro-life states are helpless to stop doctors from flooding their states with abortion pills. Indeed, there are more abortions now in red states than before Dobbs. The shield law issue has not yet reached the Court, but I suspect the Court will stay out of it. And, just this evening, the Court once again copped out on mifepristone.

The court, by an ostensible 7-2 vote, granted a stay of the Fifth Circuit in Danco Laboratories v. Louisiana. There is no explanation at all. I am old enough to remember when the Court's liberals complained that unexplained stays should not be granted. But here, Justices Sotomayor, Kagan, and Jackson dutifully joined the order. As did Justices Gorsuch, Kavanaugh, and Barrett. In 2023, I wrote that Justice Barrett only grants relief on the emergency docket when the Fifth Circuit does something conservative. Well, the trend continues.

Why did the Court grant a stay of the reasoned decision by Judge Duncan?  Was it due to a lack of state standing? Did the Court find that Louisiana is not likely to win on the merits? Perhaps the Court found that Danco prevailed on the equities to distribute a product that is illegal? Who knows? The Court said nothing at all.

Of course, this might be a rare case where all three Trump appointees voted in the exact fashion Trump wanted. The President clearly does not want to block the shipment of mifepristone. He has been very clear on this from the outset. There have been no Comstock Act prosecutions. The FDA has refused to revisit the Biden-era REMS. The FDA didn't even file a brief in this case! Trump was hoping that the Supreme Court would bail him out, and they did.

The only Justices willing to say anything about the matter were Justices Thomas and Alito. Thomas made the obvious point: the distribution of mifepristone is illegal. How can Danco and Genbiopro "be irreparably harmed by a court order that makes it more difficult for them to commit crimes"? Imagine a gun manufacturer sought an injunction to allow the shipment of their products into a blue state, where it was illegal. Does anyone think the equities would tip in favor of those shipping firearms? Of course not. And really, no need to imagine. I represented Defense Distributed, which was enjoined from putting files on the internet that might be downloaded by someone in a blue states. Do you think the federal judge in Washington was troubled that Defense Distributed lost profits? Come on. Get real.

Justice Alito, as usual, said what needed to be said. Blue states are flouting Dobbs and the Supreme Court will do nothing to stop it.

The Court's unreasoned order granting stays in this case is remarkable. What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women's Health Organization, 597 U. S. 215 (2022), which restored the right of each State to decide how to regulate abortions within its borders. Some States responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other States, including Louisiana, made abortion illegal except in narrow circumstances. See, e.g., La. Rev. Stat. Ann. §40.1061 et seq. But Louisiana's efforts have been thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana's and seek to undermine their enforcement.

In the past, Justice Kennedy prevent Louisiana from banning abortions within its borders. Now, the government of New York can impose the same undue burden on state sovereignty. Has anything really changed since Dobbs? Justice Kavanaugh's Dobbs concurrence reached out to decide the issue of whether women could travel from red states to blue states. But he missed the most obvious response: mail order abortions. Why travel when you can get the pills sent through the Postal Service?

As for the equities, Louisiana simply seeks to put Danco in the same position it was before the 2023 REMs. They were profitable under the old regime, and can remain profitable.

I will continue to teach Bruen, SFFA, and Dobbs. But students should know the Justices really didn't mean to enforce any of these rulings.

I think we can soon add Kennedy v. Bremerton to this list. Judge Duncan's opinion for the en banc Fifth Circuit faithfully applied the history and tradition test to the Texas Ten Commandments Law. I think the Chief Justice will write the majority opinion, and hold, "Well, we really didn't mean what we said." As I said above, the casebook changes, but constitutional law remains largely the same.

The post What Do <i>Bruen</i>, <i>Dobbs</i>, and <i>SFFA</i> Have In Common? appeared first on Reason.com.

During the first Trump Administration, the federal courts got a crash course in the Emoluments Clauses. Shortly after Trump was sworn in, progressive groups brought suit in New York, Maryland, and the District of Columbia. They argued that foreign and state governments that patronized Trump properties were giving unconstitutional emoluments to President Trump. Seth Barrett Tillman and I filed a host of amicus briefs at the District Court, Circuit Court, and Supreme Court level. However, the plaintiffs never sought a preliminary injunction or any sort of expedited relief. Indeed, despite the fact that they claimed these cases were urgent and the fate of the Republic turned on stoping this foreign influence, the plaintiffs repeatedly requested extensions and continuances. At the end of the day, the clock ran out. By the time the case made it to the Supreme Court's merits docket, Trump was out of office, and the cases ended with a whimper.

Since Trump's second term began, I have waited with bated breath for suits based on the Emoluments Clause, as well as Section 3 of the Fourteenth Amendment, our other scholarly interest. But nothing came. Zero. Zip. Nada. I suppose the legal resistance has bigger fish to fry with all the strategic litigation in the First Circuit.

Well, the Emoluments Clause is back. The Constitutional Accountability Center, which brought litigation during Trump 1.0, has sued President Trump for violating the Domestic Emoluments Clause. This case, however, does not concern businesses patronizing any current Trump property. Instead, the complaint alleges that the Miami-Dade Community College and the state of Florida granted Trump an unconstitutional emolument by gifting land in Downtown to be used for the Trump Presidential library. President Trump is the defendant, as well as the Trump Presidential Library, Governor DeSantis, Attorney General Uthmeier, and a host of other state officials.

In 2017, the Constitutional Accountability Center filed suit on behalf of Senator Blumenthal and other members of Congress. That theory of standing was doomed to fail. Nine years later, the Constitutional Accountability Center invoke another theory of standing that is doomed to fail.

Who are the plaintiffs in this case? There are two individuals who live near the planned location of the library in downtown Miami. They complain that the tower will block their view of Biscayne Bay, increase traffic, diminish their "quality of life," and reduce the value of their property.

Another plaintiff is Sistrunk Seeds, also known as Dunn's Farm, which wants to operate an "urban farm" in downtown  Miami. Dunn claims that it had worked with Miami Dade College in the past, and wanted to build a farm across the street from Biscayne Bay, but can't because the land was given to the library. There does not appear to be any contract or binding agreement--simply an expectation to have future discussions. The complaint admits as much: "The longstanding partnership between MDC and Dr. Dunn demonstrates that, at a minimum, MDC would have seriously considered Dunn's Farm's request for the land." The farm also claims a "diversion of resources" theory of standing.

Finally, there is a student at Miami Dade College who wants to work on the non-existent farm. The complaint states, "The emolument at issue has quashed Ms. Salcedo's opportunity to learn urban farming and nonprofit management skills on campus for academic credit." Maybe she can claim standing based on some magical beans that could grow into a beanstalk as tall as the new Trump library?

On January 22, 2017, I wrote an early blog post critical of the theory of standing in CREW v. Trump. I was met with a swift reply by Laurence Tribe. Let's see if anyone jumps on board this case.

Apart from standing, the Plaintiffs have a host of other jurisdictional hurdles. There is no cause of action. They are not within the zone of interest of the Domestic Emoluments Clause. They sued the President in his official capacity. And more. Plus the transfer of land is not an emolument. Seth and I have written on this topic.

As of yet, the plaintiffs have not sought a preliminary injunction. As they say, the process is the punishment.

These claims will not succeed, but there is a cost of losing, should this case ever make it upstairs. I can see six votes on the Supreme Court to kill diversion of resource standing, hold there is no implied cause of action for alleged violations of the Constitution, and eliminate any sort of "offended observer" standing based on seeing things that bother you. The plaintiffs here can radically set back civil rights law, all in a case that is doomed from the start. Wouldn't it be better to never bring this case in the first place? Plus, the plaintiffs filed in unfamiliar territory. They will not be protected by jurists like Peter Messitte and Emmet Sullivan, with appeals to the friendly Fourth and D.C. Circuits. I question the wisdom of this suit.

The post The Domestic Emoluments Clause Returns To The Trump Presidential Library in Miami appeared first on Reason.com.

Earlier this week, I did a talk at Unitelma Sapienza University in Rome on "Threats to Liberal Democracy in the United States - And How to Counter Them."  The talk was followed by commentary from three Italian scholars: Prof. Carla Bassu (University of Sassari), Prof. Giovanna Tieghi (University of Padua), and Prof. Andrea Fiorentino (Unitelma Sapienza), and my response. Prof. Pier Luigi Petrillo (Unitelma Sapienza) moderated. I also did an interview on related topics for Unitelma Sapienza's "Leaders' Talk" program. The interview was conducted by  Prof. Petrillo and Prof. Fiorentino.

The talk and the interview covered a lot of ground, including what we mean by "liberal democracy," abuse of emergency powers, the perils of nationalism, threats to freedom of speech, immigration, tariffs, and more. I also discussed the relevance of many of these issues to European nations, as well as the US. Below are links to the videos for both events. First the talk:

And now the interview:

Many thanks to Prof. Petrillo and others at Unitelma Sapienza for organizing these two events!

The post Unitelma Sapienza University Talk and Interview About "Threats to Liberal Democracy in the United States - And How To Counter Them" appeared first on Reason.com.

I'm very happy to post a draft of a new article, "Popular Conceptions of Fourth Amendment Curtilage," written together with my co-author Matthew Kugler, forthcoming in the Michigan Law Review.

The article picks up an idea I first pondered here at the Volokh Conspiracy back in 2018. The Supreme Court interprets the Fourth Amendment to extend the privacy of the home beyond the home's walls to an outside space it calls "curtilage," and it insists that what counts as curtilage, and the implied license to enter it, is intuitive and widely known. But is it? What do ordinary people really think about curtilage and implied license?

Here's the abstract of our new article:

Fourth Amendment protections outside depend on a legal concept called "curtilage." Entering the curtilage of a property normally requires a warrant unless the entry is within an implied license. According to the Supreme Court, the boundaries of curtilage and implied license are found largely in prevailing social norms—what the Court calls "the habits of the country." Judges tasked with applying curtilage doctrine are supposed to intuit these shared attitudes to determine what the police can and cannot do. But there is something missing: No one has ever asked the public what they think.

This Article presents the results of three empirical studies, involving 600 participants each, in which members of the public were asked what places count as curtilage and what visits to homes are covered by implied license. In the first two studies, survey participants were shown a series of images of various properties with an officer present and answered whether the officer was inside or outside the curtilage. In the third study, participants were given a set of home-visit scenarios and answered whether each visit was within or outside the implied license. The surveys covered the facts of both Supreme Court cases and prominent lower court decisions to see if the courts have it right.

We found that the courts have curtilage wrong but implied license right. In the doctrine, curtilage is limited to the area immediately around the home. But the public disagrees. To most people, privacy in the home extends to the entire property. If it's part of the property, it's private. In short, the public has a far more expansive conception of home privacy than courts allow. On the other hand, public perceptions of implied license very closely align with the caselaw. Courts have misunderstood curtilage, but they have accurately described the implied license. Going forward, Fourth Amendment law should change: Courts should either justify current curtilage protection on different rationales or else expand the curtilage line to match public opinion.

This is just a draft, so comments are very welcome.

The post New Draft Article: "Popular Conceptions of Fourth Amendment Curtilage" appeared first on Reason.com.

There has never been an economic shock in modern American history like the one the leaders of the AI industry are telling us is coming. Dario Amodei has warned of "unusually painful" labor impacts "bigger than any before," predicting that AI could eliminate half of all entry-level white-collar jobs and push unemployment to 10–20 percent within five years. He is hardly alone. Both OpenAI and Anthropic have begun laying out, in expansive policy memos, the kind of social contract they say the post-AGI economy will demand, with proposals for shorter working weeks, public wealth funds, and a completely modernized taxation system. The abundance is coming, they tell us, and they would like to help us figure out how to share it.

Can the tech industry successfully pre-empt American populism, sketching the post-AGI social contract before the public has even decided it wants one, and before we even know if speculator growth and job displacement is actually coming? My answer, after months working with my coding agents to pore over polling data, policy proposals, and historical parallels, is that it cannot.

In the scenario the labs are sketching, the politics of AGI will be the politics of jobless prosperity. And this makes it hard to forecast well. The economy will be growing rapidly even as jobs disappear, more like the Industrial Revolution or the China Shock than a normal recession, with mass disruption alongside the explosive enrichment of a small class of elites at the top.

Voters in this world will not be anxious about a shrinking economy but furious about being shut out of a booming one, and they may well stop the boom from arriving at all. Jasmine Sun has documented how this anxiety is already curdling into nascent political anger, observing that "the anti-elite and nihilistic attitudes that have dominated US political culture in the last few years are transmuting into anger at AI billionaires." Alex Imas, in "What will be scarce?", has made the most careful economic case for taking the underlying disruption seriously, even while laying out why both the short and long-term doomers may be wrong about mass unemployment.

The labs see all of this coming, which is why their policy memos have grown so ambitious. It would be easy to read this as good news, since the parties who would have to pay for redistribution are pre-emptively volunteering to do it.

But it cannot work. First, social contracts tend to get extracted from the powerful by the affected, not handed down from above to a public that has not yet decided what it wants. And second, we don't even know yet what the economic contours of AGI will look like—we don't even really know that it's going to lead to job loss, let alone to massive job loss.

As we fluctuate between promises of catastrophe and abundance, I've come to three conclusions:

1. The backlash to AI isn't here yet. There is anxiety among American voters, but there is no populist backlash yet, because the structural conditions for it have not arrived. Hence, we have a potentially narrow window in which to plan out our response to job loss before it becomes a populist issue.
2. Real backlash will happen if and when job losses pick up steam. The backlash will properly arrive if and when unemployment climbs by two percentage points—I hypothesize—alongside a clear public narrative that AI is to blame. At that point, if we do not have a good inventory of smart policy ideas, we will be overwhelmed with bad populist ones.
3. The labs should focus on measurement, not redistribution. Their best contribution in the window before backlash is the infrastructure that lets society see this transition clearly—usage data, displacement indicators, self-activating triggers—not pre-emptive social contracts that lack credibility and a coalition to enforce them. The eventual bargain is something that affected people should play a direct role in negotiating; the data and tools that can help them negotiate from a position of clear information are what the labs can build now.

The post "The Politics of Jobless Prosperity" appeared first on Reason.com.

The Food and Drug Administration opened an investigation of medical facilities that prescribe "off label" drugs to minors with gender dysphoria. The FDA has not determined if the use of these drugs for these purposes is safe or effective to treat gender dysphoria. The investigation began before the U.S. District Court for the Northern District of Texas. In July 2025, the Assistant Attorney General issued a HIPAA subpoena on Rhode Island Hospital (which includes Brown University Health) to determine if patients received misbranded drugs. The hospital, however, refused to comply with the subpoena.

On April 30, 2026, DOJ filed a petition to enforce the subpoena with the District Court in NDTX. That same day, Chief Judge O'Connor granted the government's petition. He ordered Rhode Island Hospital to provide all records within fourteen days.

On May 6, Rhode Island Hospital filed a notice of appeal to the Fifth Circuit, and the next day filed an emergency motion to stay. Among other arguments, Rhode Island argued that venue was not proper in NDTX. The government countered that venue was proper because there is an active investigation being carried out in NDTX. On May 10, Judge O'Connor denied the motion for an emergency stay. He found that venue was proper:

Second, RIH argues that this Court is not the proper venue to adjudicate the Government's petition.7 Title 18 U.S.C. § 3486(c) permits enforcement of an administrative subpoena in "any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he carries on business or may be found." According to the Declaration from the Acting Director of the Enforcement and Affirmative Litigation Branch there is substantial operational and decision-making control of the investigation being exercised at the U.S. Attorney's Office in the Northern District of Texas, along with several subjects and potential targets of the investigation located therein.8 The record therefore reflects that the investigation is being carried on in the Northern District of Texas and the Government's enforcement petition was properly brought in this Court. Accordingly, RIH has failed to show a likelihood of success on the merits as to its venue challenge.

FN8: 8 See generally Hsiao Declaration (Sealed) Ex. 1, ECF No. 10-1. The Government has presented the Court with ex parte information that supports its choice to enforce the subpoena in this Court and due to the sensitive nature of that information, it was provided ex parte. See In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) (finding no abuse of discretion where the district court relied on the government's ex parte submission in reaching its decision).

That was the litigation in Texas. But there was a parallel track on the other side of the country. On May 4, even before Rhode Island Hospital filed an emergency motion before Judge O'Connor, the Child Advocate for the State of Rhode Island (a non-profit) filed an emergency motion in the District of Rhode Island to quash the subpoena. On May 7, the United States filed a motion to stay or transfer venue. The court immediately denied that motion with a text order. On May 11, the District Court granted Rhode Island Hospital's motion to intervene. The group then filed an emergency motion to quash the subpoena. Judge McElroy ordered the United States to submit the sealed Hsiao declaration.

Back in Texas, on May 11, the United States informed Judge O'Connor that the government intended to comply and provide the sealed Hsiao Declaration. On May 12, Judge O'Connor ordered that the government could not release the sealed information to the parties:

However, the Government now seeks to disclose sensitive information to a party here—but in a seemingly parallel litigation—without having shown why the sealed or protected matters should be provided to it nor how that information would be protected. In fact, the Government's representation that it does not know what protections the information related to the grand jury proceedings or sealed information in the matter pending here will receive in the Rhode Island court cuts against disclosing it. In light of grand jury proceedings' dependency on heightened secrecy, the basis for sealing declarations, and the Government's failure to show that the information that it requests leave to disclose would be protected, the Court would be derelict in its obligation to hew strictly to Rule 6(e)'s exception, and undermine the reasons given for sealing, by granting the Motion as requested. Accordingly, it is ORDERED that the Government is prohibited from revealing any further sealed information or information concerning the grand jury investigation until it can show that "a particularized need" exists for the materials that outweighs the basis for and policy of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959)). The Government shall immediately distribute this Order to all members within or connected to this investigation, notifying them of the prohibitions set out herein and their obligation to comply with them. The Government may distribute a copy of this Order to the Rhode Island court.

But Judge O'Connor allowed the government to share the declaration with Judge McElroy in chambers.

The Court granted the Government's previous motion to disclose information related to the grand jury's existence because the Government specified that such information would be confined to in camera review by the Rhode Island court. That disclosure permitted the Government to disclose to the Rhode Island court that there is a legitimate investigation pending in this district, and responsive documents are due. Indeed, the Court has concluded as such, granted the Government's motion to enforce an administrative subpoena, and is superintending this matter.2 Were Rhode Island Hospital entitled to further sealed or secret information it may always move this Court for such access upon a proper showing.

On May 13, Judge McElroy issued a 24-page opinion granted the motion to quash the subpoena from NDTX and enjoined DOJ from seeking or receiving any documents pursuant to the subpoena. Judge McElroy was apparently shown the materials, but was not persuaded. She did not reference the sealed declaration. Judge McElroy acknowledged her order was completely unprecedented:

The Court is unaware of any similar case where a party has petitioned a court to quash an administrative subpoena that another court ordered enforced without prior notice or opportunity to be heard.

But she did it anyway. Indeed, Judge McElrod took a shot at Judge O'Connor:

The United States Department of Justice ("DOJ") possesses immense prosecutorial authority and discretion. As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary. DOJ has proven unworthy of this trust at every point in this case. It has misrepresented and withheld information to both this Court and the United States District Court for the Northern District of Texas (the "Texas court"). It did so in an obvious effort to shield it's recent investigative tactics—previously rejected by every other court to review them—from this Court's review, in favor of a distant forum that DOJ deems friendly to its political positions.1

FN1: 1 The presiding judge in the Texas court has branded "the Department of Justice, the world's largest law firm" a "frequent forum shopper." Opening Remarks from Judge Reed O'Connor [2024 TX Chapters Conference], The Federalist Society (Oct. 22, 2024), https://www.youtube.com/watch?v=HMTt9pxWBhA [https://perma.cc/GR7A-H6N8]. It is clear that the DOJ has done so here.

I attended Judge O'Connor's speech in 2024. The purpose of his remarks was to show that all litigants engage in forum shopping, including the Biden DOJ. This snippet takes Judge O'Connor's comments out of context. Here are the full remarks:

Just this year, in response to political pressure that named specific judges, the Judicial Conference took aim at single-judge divisions, especially those in Texas. Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges—only judges doing their level best to faithfully apply the law to reach the correct decision.

Notably, the proposal did not target longstanding forum-shopping—or as Judge Jim Ho put it, forum-selling—in bankruptcy courts or patent venues. Such cases impact our economy in the billions of dollars and were recently highlighted only due to an embarrassing scandal. Yet the practice in these areas remain untouched by reform efforts given the absence of comparable political pressure from commentators and political officials.

Instead, the proposal focused entirely on remedies the Department of Justice, the world's largest law firm and regular forum shopper, complained of—that is, injunctions and vacaturs. The reason for this was clear: the Judicial Conference was responding to external political criticism.

It takes some cheek for a District Judge in Rhode Island to accuse others of engaging in forum shopping. I've lost count of the number of anti-Trump actions filed in Boston, Rhode Island, and other places, that have no actual connection to New England, other than the fact that the First Circuit is a very friendly venue. Did Judge McElroy blink twice about why a case called California v. Department of Education was filed in Boston? Or when Judge Boasberg ordered a plane taking off from Texas to turn around? For whatever it is worth, it is far more likely for a nexus to be found in the Northern District of Texas than in Rhode Island. You could fit the entire state of Rhode Island in the DFW Metroplex, and you could fit the city of Providence inside the bounds of the DFW airport.

On May 14, today, Judge O'Connor unsealed his March 12 order, which indicated the materials could be shared with Judge McElroy.

So here we are. A District Court judge in Texas ordered that a subpoena must be complied with. A District Judge in Rhode Island quashed that subpoena. We now have a conflict that cuts to the heart of federal power. Perhaps not since the Dorr Rebellion, which gave rise to Luther v. Borden, has a Rhode Islander thrown such a wrench into our federal system of government. During the first Trump administration, I wrote about the prospect of dueling nationwide injunctions. Now, we have dueling transdistrict fights over transgender subpoenas.

Appeals will be mounted to the Fifth and First Circuits at the same time. I know a bit about this sort of conflict. For some time, I've been involved with litigation concerning Defense Distributed. Since 2018, we have been stuck in a quagmire: the District Court in Austin transferred the case to New Jersey, the Fifth Circuit asked the New Jersey court to return the case, the New Jersey court said no, and the en banc Third Circuit declined to interfere. (Stay tuned on what comes next in this case.)

I suspect the Supreme Court will have to settle this subpoena fight at some point.

Update: I updated the passages concerning the unsealing of materials.

The post Transgender Subpoena Leads To Transdistrict Struggle appeared first on Reason.com.

The Roberts Court is often derided as a pro-corporation Court. I've lost count of how many stories measure the Chamber of Commerce's success rate before the Supreme Court. The reality, however, is different. The Court often leans in a jurisprudential directions that corporations do not like. One leading example is preemption. As a general rule, corporate defendants favor broad preemption to avoid liability from state suits, while plaintiffs favor narrow preemption so they can bring state tort suits. But on the Supreme Court, things do not line up so neatly. Justice Thomas, a federalist, has long been a skeptic of broad preemption. I think Justice Gorsuch is in the same camp. Justice Kavanaugh, and to a lesser extent, Justice Alito, are the strongest votes to find broad preemption. That leaves (as usual) Chief Justice Roberts and Justice Barrett as the decision-makers. Unlike in most cases that are important to conservatives, there is not an automatic conservative majority to find preemption, and indeed, it may be hard to count to five.

I think we have something of an Antipreemption Court.

Consider three preemption cases argued this term.

First, Hencely v. Fluor Corp reversed the Fourth Circuit, and found that federal law did not preempt the state-law tort claim.  Justice Thomas wrote the majority opinion, joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Justice Alito dissented, joined by the Chief Justice and Justice Kavanaugh. As I noted at the time, these votes lined up with how the justices view preemption more generally.

Second, today the Court decided Montgomery v. Caribe Transport II, LLC. Here, the Court unanimously found that federal law did not preempt a state-law tort claim against transportation brokers. Justice Barrett wrote a delightful majority opinion. In only a few pages, she briskly walked through all the statutory arguments. She was confronted with an anomaly raised by the government, and responded: "The text of subsection (c)(2)(A) controls. Better to live with the mystery than to rewrite the statute." Amen.

Justice Kavanaugh wrote a concurrence joined by Justice Alito, finding that the preemption analysis is harder than the majority suggests. Ultimately Kavanaugh writes that Congress and the President can fix any problems.

The brokers and their amici raise serious concerns about the repercussions of state tort liability against brokers, and they may of course (among other possibilities) ask Congress and the President to change federal law.

That worked for Lilly Ledbetter! Still, the case was unanimous. Paul Clement, who argued Montgomery, usually does not lose 9-0. But the GOAT didn't get a single vote here.  [Update: Clement represented the Petitioner, and not the Respondent in this case. I got it completely backwards. He won 9-0. My apologies to the GOAT.]

The third preemption case, Monsanto Company v. Durnell, was also argued by Paul Clement. And if Hencely and Montgomery are any indication, I think Clement may lose this one. It won't be unanimous, but it may be 5-4 or even 6-3 for the plaintiffs. I wrote about Monsanto here and here. The Justices, even the conservative ones, are not going to engage in any creative reading of statutes to preempt federal law--even if the consequences are catastrophic. The answer will be, as Justice Kavanaugh suggested, for Congress to address the situation.

The post The Antipreemption Court appeared first on Reason.com.

Sara and Mojahid were married on February 5, 2001 in Sudan.

Under Islamic law, a husband has the right to initiate a divorce ("talaq") against his wife. All that is required to achieve talaq is for a husband to pronounce his intent to divorce his wife on three separate occasions, either verbally or in writing. The husband does not need to communicate his three pronouncements to his wife. She need not be present for them or even aware of them. A wife cannot object to a talaq.

Unbeknownst to Sara, Mojahid pronounced talaq three times prior to December 11, 2022. On or about December 11, 2022, Mojahid obtained a Certificate of Divorce from Sara in Sudan (the "Divorce Certificate") based on his pronouncement of talaq. When he obtained the Divorce Certificate, neither Mojahid nor Sara lived in Sudan. They lived in the United Arab Emirates ("UAE") at the time, which had been their residence since 2015. Additionally, Sara was not present when Mojahid obtained the Divorce Certificate. Mojahid emailed Sara the Divorce Certificate on December 19, 2022.

Sara had been discussing a divorce from Mojahid with an attorney in the UAE in 2021 and 2022. At some point therein, Sara commenced a divorce action against Mojahid in the UAE. Mojahid responded to the action by stating the parties were already divorced in light of the Divorce Certificate. The parties eventually dismissed the UAE action.

In February 2023, Sara moved to the United States, where Mojahid had accepted a position at a university. The parties moved back in together in May 2023.

Sarah filed for divorce in the present action on July 26, 2024. In her Complaint, she alleges the parties have been married ever since February 5, 2001….

Mojahid alleges this Court lacks subject matter jurisdiction over Sara's divorce action because the parties are already divorced by way of Mojahid's pronounced talaq followed by him obtaining the Divorce Certificate. In order to determine whether this Court has subject matter jurisdiction, this Court need not decide whether talaq or the Divorce Certificate are valid means for Mojahid to divorce Sara under their religion or the laws of Sudan. Rather, this Court need only detennine whether it should exercise comity to recognize the foreign divorce decree as determinative of this divorce action.

The doctrine of comity relates to the recognition and enforcement of foreign orders, judgments, and decrees:

Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislature, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

"Comity is a nation's voluntary recognition and execution of another nation's law where the rights of individuals are concerned." Before comity may be relied upon, "it is necessary that the court which issued the order or judgment had jurisdiction over the matter and the parties involved and that due process was afforded to the parties in the proceedings." …

North Dakota courts have not yet examined the issue of comity specifically for divorce decrees. However, other jurisdictions have analyzed comity in circumstances similar to this case. For instance, in In re Ramadan (N.H. 2006), the respondent in a New Hampshire divorce action moved to dismiss, asserting the trial court lacked jurisdiction because he had already obtained a divorce decree in Lebanon. Before the petitioner filed for divorce in New Hampshire, the respondent unilaterally initiated a divorce under Islamic law by declaring "I divorce you" three times and traveling to Lebanon to see his attorney and "sign the necessary papers." The court denied the respondent's motion to dismiss.

The New Hampshire Supreme Court affirmed on appeal, noting that while the courts may recognize foreign divorce decrees as a matter of comity, comity is discretionary and "will not be applied if it violates a strong public policy of the forum state, or if it leaves the court in a position where it is unable to render complete justice." According to New Hampshire Supreme Court, public policy considerations supported the trial court's decision to retain subject matter jurisdiction and not enforce the Lebanese divorce decree. Namely, the court recognized:

Courts of a foreign country have no jurisdiction to dissolve the marriage of parties not domiciled in such foreign country at the commencement of the proceedings for divorce, and recognizing an ex parte divorce obtained in a foreign nation where neither party is domiciled would frustrate and make vain all State laws regulating and limiting divorce.

The court reached a similar conclusion in Tarikonda v. Pinjari (Mich. Ct. App. 2009). In Tarikonda, the defendant pronounced talaq to divorce the plaintiff prior to the plaintiff commencing a divorce action in Michigan. 2009 WL 930007, at *1. The defendant moved to dismiss the action based on the existing divorce, which was evidenced by a divorce certificate the defendant obtained from a Wakf Board in India. The trial court granted the defendant's motion, but the Michigan Court of Appeals reversed, citing public policy concerns in recognizing the Indian divorce.

The court stated a judgment should be accorded comity if (1) the basic rudiments of due process were followed, (2) the parties were present in court, and (3) a hearing was held on the merits. None of these elements were satisfied with respect to the Indian divorce for the court to extend comity and recognize it. The plaintiff had no right to prior notice of the defendant's pronouncement of talaq; she was not represented by an attorney and had no right to be present at the pronouncement; and the divorce provided no opportunity for a hearing on the merits. Because the plaintiff was denied due process in the Indian divorce arising solely through the defendant's declaration of talaq, the Michigan Court of Appeals concluded the trial court erred in recognizing the divorce and dismissing the complaint.

In this case, the Court has similar public policy concerns as those expressed in In re Ramadan and Tarikonda in recognizing the Divorce Certificate. Mojahid obtained the Divorce Certificate in Sudan at a time when neither party resided in the country. He further obtained the Divorce Certificate after unilaterally declaring talaq outside the presence of Sara. She was not provided notice of Mojahid pronouncing talaq or that he was seeking the Divorce Certificate in Sudan. Sara did not receive a copy of the Divorce Certificate until Mojahid emailed it to her days later. At no point in this process was Sara provided basic rudiments of due process, which is fundamental to divorce proceedings in North Dakota.

Due to this Court's concerns that Sara was not afforded proper due process for the divorce sought by Mojahid, the Court concludes it would not be appropriate to exercise comity to recognize and enforce the Divorce Certificate….

The post North Dakota Court Refuses to Recognize Foreign Islamic Divorce appeared first on Reason.com.

As usual for such libel-by-AI lawsuits, the claim isn't "Garbage In, Garbage Out," in the sense that Google is creating a summary from inaccurate online allegations and is thus parroting the inaccuracies. Rather, plaintiff claims that the allegations appear only in the AI Overview, and that the AI algorithm composed the allegations itself.

The Complaint also alleges that,

Since the publication of these statements, Mr. Murray has endured a continual barrage of hostile and accusatory messages, telephone calls, and in-person confrontations demanding to know what "really happened" or accusing him outright of reprehensible conduct. Members of his own family and personal friends have referenced the allegations on numberless accounts, expressing shock, and questioning his character based solely on the information circulated about him. Mr. Murray's romantic relationship was likewise strained when his partner's family confronted him about the alleged conduct.

The humiliation has also manifested in routine public settings. Strangers have approached Mr. Murray in local businesses, including stores and gas stations, to question him about supposed "charges" or to make disparaging remarks. Individuals who previously interacted with him without concern have altered their behavior, avoided him, or severed contact altogether. And individuals Mr. Murray had hired to clean his home stopped performing the service when their mother learned of the accusations. She barred her children from coming to his home, called him a "sex offender" and admitted to spreading that label around town before he could even explain that every word published about him was false….

Mr. Murray consistently attempted to explain that the accusations were entirely false; however, many individuals either refused to allow him to respond or, when they did listen, declined to believe his explanation in light of information presented by Google. The statements have shattered both his personal and professional life, with the most immediate impact being financial—lost clients, canceled contracts, and the growing threat of bankruptcy….

For other libel-by-AI cases, see here. For a detailed legal analysis, see this article of mine; it's three years old now, but I think its analysis remains sound.

The post Large Libel Models Strike Again? Google AI Allegedly Hallucinates Sex Crime Allegations Against Utah Man appeared first on Reason.com.

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The post Open Thread appeared first on Reason.com.

The Court accepts the Amended Complaint's allegations as true for purposes of resolving the motion to dismiss. Dusty Button was a world-renowned and well-known ballet dancer. She accumulated nearly half a million followers and subscribers on Instagram until December 2021, when she deleted her social media account due to "severe cyber bullying and harassment." Mitchell Button was a part of "Button Built," a team and brand for automotive design, builds, and work in the automotive industry. Mitchell Button also had nearly half a million followers and subscribers on his Instagram account, @button_built. He too deleted this social media account in 2021 because of "severe cyber bullying and harassment." …

In July 2021, Plaintiffs were sued in the United States District Court of Nevada for $131,000,000 ("Nevada Lawsuit"). The Nevada Lawsuit was publicized in thousands of articles, televised on news and media outlets such as Good Morning America, and published on social media pages and channels. [The lawsuit involved allegations of sexual assault. -EV] The coverage of the Nevada Lawsuit states Plaintiffs were sued in a civil action. Plaintiffs were never arrested, charged with any crime, or jailed in connection with the allegations contained in the Nevada Lawsuit. On January 6, 2025, Plaintiffs filed a motion for summary judgment in the Nevada Lawsuit. Plaintiffs posted a redacted version of the motion for summary judgment to their Instagram page, @WeTheButtons, which is "dedicated to providing accurate information about the [Nevada Lawsuit]." Defendant followed this Instagram page….

A third-party Instagram page, @trail.huntr, posted to Instagram a photo of Mitchell Button's automotive work. On January 27, 2025, Defendant posted a comment on this post, stating the Buttons were "locked up for some f*cked up stuff" and it was a "shame they weren't good people." The post by @trail.huntr was "shared" at least three hundred and twenty two times, and Defendant's comments were published to hundreds of thousands of people.

According to Plaintiffs, Defendant knew his comments were false and would reach a substantial audience, but did so to prevent Plaintiffs from repairing their reputations and business relationships. Defendant allegedly published his comments with "actual malice." Defendant's comments encouraged others to make false statements about Plaintiffs, including one of his followers, who stated the Buttons were "locked up for human trafficking." Shortly after Plaintiffs replied on the Instagram post, contesting the truth of Defendant's accusations, Defendant deleted his comments and blocked Plaintiffs on social media. Defendant's statements prevented Plaintiffs from repairing their reputations and professional relationships, which ultimately interfered with Plaintiffs' existing and prospective business opportunities and deprived Plaintiffs of work. Plaintiffs allege that while they have "already suffered unimaginable loss to their businesses, careers, reputations, finances, mental health, and overall livelihood," they continue to suffer because of Defendant's statements….

Defendant argues Plaintiffs are public figures, and therefore, must sufficiently plead that the alleged defamatory statements were made with "actual malice." Assuming Plaintiffs are public figures, the Court finds the Amended Complaint sufficiently pleads "actual malice."

"Actual malice" requires that "the statement must have been made with knowledge of its falsity or with reckless disregard for whether it was false." Here, Plaintiffs allege Defendant was a long-time fan and former competitor of Mitchell Button in the automotive industry, and was aware of Plaintiffs' reputations in the industry. Further, Defendant reportedly followed an Instagram page, "@WeTheButtons," which provided accurate information about the Nevada Lawsuit. Plaintiffs also allege the Nevada Lawsuit was widely publicized and media coverage reported that the case was civil, not criminal. Plaintiffs were never arrested, charged with any crime, or jailed in connection with the allegations contained in the Nevada Lawsuit. Thus, accepting Plaintiffs' factual allegations as true and construing the pleadings in the light most favorable to the nonmoving party—as this Court is required to do—it is plausible that Defendant made the alleged statements knowing they were false or with reckless disregard for whether they were false….

Defendant argues [also] the first comment—the full quote being, "lol locked up for some f*cked up stuff"—is not "a statement about anything" because it is preceded by "lol," an acronym for "laughing out loud." Falsely stating someone was incarcerated is a verifiable fact that may constitute defamation…..

[But the court agrees that] the second comment, "it was a shame they weren't good people" is "merely opinion," that does not "imply a provable false assertion of fact" and, therefore, is not actionable….

The post Starting Statement with "LOL" Doesn't Keep The Assertion in It From Being Potentially Libelous appeared first on Reason.com.

The Harlan Institute has completed the Fourteenth Annual Virtual Supreme Court Competition. This year, in honor of America's 250th Anniversary, the competition presented the case of Patriots v. Loyalists. This competition offered teams of two high school students the opportunity to research American history, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that the Declaration should be signed.

On April 7, we held the Final Four round at the Georgetown Supreme Court Institute. Presiding were Judge Kyle Duncan of the U.S. Court of Appeals for the Fifth Circuit and Judge Gregory Maggs of the U.S. Court of Appeals for the Armed Forces. In the first match, the Petitioners were represented by Team #24358 from Creekview High School in Texas (Lauren Hohltand Tzur Shalit). Their coach was Jonathan Cartray. The Respondents were represented by Team # 24627 from Regis High School in New York (Cullen Brennan and Nicholas Kim). Their coach was Eric DiMichele.

In the second match, the Petitioners were represented by Team #24346 from Greenwich High School in Connecticut (Kaitlyn Qin and Diana Davidson). Their coach was Aaron Hull. The Respondents were represented by Team #24266 from the Baldwin School in Pennsylvania (Eileen Wang and Sarah Tarka). Their coach was Athan Biss.

After two excellent, closely-matched rounds, Team #24358 from Texas and Team #24346 from Connecticut advanced.

After the Final Four round, we walked over the Supreme Court for lunch, a tour, and a lecture. It is always a treat to bring students to the Supreme Court for the first time.

In the evening, we held the Championship Round at the National Archives. On permanent display in the Rotunda are the Declaration of Independence, the Constitution, and the Bill of Rights. It was so special for students to debate the foundational question of independence in the presence of the Declaration. This may have been the first time since 1776 where the pro-Loyalist argument was presented before the Declaration.

Presiding were Judge Duane Benton (U.S. Court of Appeals for the Eighth Circuit), Judge Neomi Rao (U.S. Court of Appeals for the D.C. Circuit), Justice Evan Young (Supreme Court of Texas), and Judge Charles Eskridge (U.S. District Court for the Southern District of Texas). Both teams presented compelling arguments for and against independence. In the the end, the judges selected the Patriots, Lauren Hohltand Tzur Shalit, as the Champions. Diana Davidson was selected as best oralist.

This was a magical evening and a fitting tribute to 250 years of independence. My sincere thanks two Elizabeth Steeves (Yale) and Shemaiah DeJorge (Georgetown) for helping to coordinate this competition.

I have included photos and videos below the jump.

The Georgetown Supreme Court Institute

Final Four - Match 1

Final Four - Match 2

The Supreme Court

The National Archives

The Judges

The Patriots

The Loyalists

The Judgment

The post The Harlan Institute Championship Round At The National Archives appeared first on Reason.com.

Couto and Karina divorced in 2012. Since then, Couto has had multiple DVPOs [Domestic Violence Protection Orders] issued against him regarding Karina, [his now-adult son] Aiden, and [his minor daughter] NC. Testimony in these cases and previous DVPO proceedings show that Couto frequently screamed at his family, threw things, waved a knife around, and engaged in other coercive, aggressive, and emotionally manipulative behaviors. Aiden's DVPO expired when he became an adult in 2023.

In 2024, Couto published a YouTube video in which he attempted to reach out to Aiden now that he was an adult. In the video, he stated that Karina had a narcissistic personality disorder and lies. Couto characterized this video as an attempt at reconciliation with Aiden.

Karina filed petitions for another DVPO for herself and to renew the DVPO for NC. Aiden also filed a petition for a DVPO based on the YouTube video and an allegation that Couto had intentionally shown up to Aiden's workplace and at a grocery store where NC was.

The trial court granted the DVPOs for Karina and Aiden. The court also renewed the DVPO for NC for one year, to which Couto had stipulated. The court found that Couto's YouTube video was a form of coercive control. The court's DVPOs required Couto to remove any YouTube video regarding Karina, Aiden or NC [the removal order wasn't challenged -EV], and prohibited him from posting or sharing any videos or other media with references to them.

We hold that (1) the trial court did not abuse its discretion in granting DVPOs to Karina and Aiden, and (2) the trial court did not err in granting attorney fees to Karina for the renewal of NC's DVPO. However, we hold that the trial court must modify the prohibition against posting videos and other media to be more narrowly tailored so as to not violate Couto's First Amendment rights….

Couto argues that the portion of the trial court's orders that prohibit him from posting, sharing, or transmitting any videos or other media that refer to Karina, Aiden, or NC violates the First Amendment. We agree that the trial court's orders must be modified to alleviate any First Amendment concerns….

The trial court's orders specifically prohibit Couto from posting media "which refers to the petitioner or the parties' children, whether by name or otherwise, in any manner whatsoever." This is a content-based restriction because it "applies to particular speech because of the topic discussed or the idea or message expressed." Couto specifically is prohibited from discussing the topic of his children and Karina….

Here, we conclude that the State has a compelling interest in the prevention of domestic violence and the prohibition of conduct that is logically connected to a civil protection order.

But the trial court's DVPOs are not narrowly tailored to the type of conduct the orders aim to prohibit. The orders prohibit Couto from discussing his estranged family in any manner whatsoever. As such, the orders reasonably can be read to prohibit Couto from ever acknowledging that he was previously married or has children. Couto also is prohibited from a more general discussion of parenting. And the orders are not limited by the type of medium through which Couto seeks to express his speech. Arguably, Couto could not email a friend about his children or former wife. {Couto states in his brief that he posts online about his experiences with the family court system and his view that the courts express systemic bias towards fathers. The trial court's order also would prohibit Couto from discussing his personal experience as a method of advocacy, which is political speech that the First Amendment protects.} Therefore, we conclude that the trial court's orders are not narrowly tailored to the DVPO and violate the First Amendment.

Orders that are narrowly tailored to Couto's conduct must be entered on remand. Here, the trial court found that Couto's YouTube videos were a form of domestic violence that were intended to generate hostility between Aiden and Karina or threats to divulge personal information. Such communications are unprotected speech.

On remand, the trial court should craft revised orders consistent with the discussion above. The orders may prohibit speech that constitutes coercive control or other types of domestic violence, but should protect Couto's First Amendment rights to the extent that his speech does not constitute coercive control or domestic violence. We appreciate that the existing orders generally reflect this balance; however, clarity in what conduct is permissible would alleviate the risk of violating Couto's First Amendment rights.

Accordingly, we hold that the portions of the DVPOs prohibiting Couto "from posting, sharing, transmitting, to third parties or the like any videos or other such media which refers to the petitioner or the parties' children, whether by name or otherwise, in any manner whatsoever" are not narrowly tailored to serve a compelling government interest and violate the First Amendment. On remand, the trial court must amend the language of its orders consistent with the discussion in this opinion….

The post Injunction Against Referring to Ex-Wife and Children in Online Media Violates First Amendment appeared first on Reason.com.

Attorney John Randolph, who is bipolar, had a mental health episode on August 3, 2021. During the incident Randolph approached a child at a public park and tried to persuade the child to go boating or parasailing with him. When police responded, Randolph made several nonsensical statements, including an inaccurate belief that he was the child's father. According to Randolph, this conduct is consistent with the occurrence of a manic episode associated with bipolar disorder.

The matter resolved with Randolph pleading guilty to disturbing the peace. About two years later, Explore with Us (EWU) Media posted a 14-minute video on YouTube and Facebook, consisting of segmented police body camera (bodycam) and security camera footage of the August 3 incident. Portions of the video include EWU Media's voice-over narration that added information beyond what was depicted in the footage, including that Randolph "does, in fact, have a bit of dirt on him, so to speak," "apparently" is "hiding a rather tumultuous past," and could "relapse" at any time.

The posting received millions of views and thousands of comments, including references to Randolph being a pedophile. Randolph received harassing emails and voicemails, including a death threat. He eventually closed his law practice because of the constant harassment from the public. Randolph sued EWU Media, asserting multiple claims based on his assertion that the narration over the video was false and defamatory because it includes statements leading viewers to believe Randolph is a pedophile who could relapse at any moment….

Because a reasonable jury could find that the "gist" of EWU Media's voice-over narration was that Randolph has a history of child predation, which is an unsupported statement that Randolph denies, genuine questions of material fact remain as to whether false statements caused harm distinct from the true portions of EWU Media's video….

In EWU Media's narration, it describes Randolph as a "deranged suspect" who is "hiding a most disgusting secret" and states that the police investigation of him is "sickening" and his actions and the investigation are "disturbing" after Randolph "creepily" talked to children. The narrator informs viewers that "we'll learn that John does, in fact, have a bit of dirt on him, so to speak." The narrator later adds, "Apparently, John is allegedly hiding a rather tumultuous past. A woman who would like to remain anonymous asserts that the suspect is a ticking time bomb. You don't know when he's going to relapse. Just wait until he unveils his most sick and twisted confession."

EWU Media inserted this narration immediately before playing the portion of the video where officers ask Randolph if he is attracted to children and he first says no but then, when pressed by the officer, agrees that he is attracted to children and that children are "beautiful creatures of God." Moreover, the video captioned and emphasized the words "ticking time bomb" and "relapse" in red and all capital letters in the center of the screen.

Evaluating the entire context of the video in the light most favorable to Randolph, a reasonable jury could find that EWU Media's narration presented Randolph as having a history of child predation.

First, while EWU Media's inclusion of the bodycam footage and security footage could be viewed as background context that allows the viewer to interpret the situation for themselves, the narration implies that he has engaged in similar acts in the past. The narration added information to the video. Specifically, EWU Media informed viewers that Randolph "does, in fact, have a bit of dirt on him, so to speak," "apparently" has a "tumultuous past," and that, according to an anonymous source, is a "ticking time bomb," at risk of "relapse." During the narration, EWU Media emphasizes the words "TICKING TIME BOMB" and "RELAPSE," in large red font in the center of the screen.

Even if it could be argued that these statements were opinions, they are opinions that imply the existence of false facts. In context, those implied facts are that Randolph has a history of child predation. The narration prompts the viewer with, "Just wait until he unveils his most sick and twisted confession" before showing the portion of the video where Randolph, in answering police, says that he is attracted to children.

Significantly, police incident reports, which were included in the public record and available to EWU Media, explained that officers stopped asking Randolph questions because he was answering "yes" to everything and they felt that "something was not right" and he was not being truthful. This background was not included within EWU Media's video, posted for millions of viewers.

Additionally, EWU Media's video, posted about two years after the August 3, 2021, incident, was not a contribution to an ongoing public debate where the viewer would expect mischaracterizations and exaggerations. Although the video included a disclaimer that said that the video was for "entertainment purposes only" and "is not to be relied upon as legal advice or opinion on any matter" this disclaimer merely flashed on the screen and was a paragraph long, so the viewer would have to pause the video to read it. More importantly, EWU Media did not present this posting as fiction "entertainment." It presented information based on a real-life incident that involved police, an arrest, and a conviction.

Though EWU Media's video does not explicitly state that Randolph has a history of child predation, a statement of an opinion implying the existence of such false facts supports a defamation action. Randolph submitted a declaration that denied any history of child predation. The burden then shifted to EWU Media to prove that its narration was true.

EWU Media did not take the position that the narration was true. Instead, it argued that the narration includes opinions, not factual statements. Because a reasonable jury could find that the "gist" of EWU Media's narration over the video implied that Randolph has a history of child predation, genuine questions of material fact remain as to whether false statements caused harm distinct from the harm caused by the true portions of EWU Media's video. We affirm the trial court's denial of EWU Media's motion to dismiss under the [Washington anti-SLAPP statute]….

Scott Roberts Weaver, Linda Blohm Clapham, and Gregory Mann Miller (Carney Badley Spellman, P.S.) represent Randolph.

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From yesterday's decision by Judge David Estudillo (W.D. Wash.) in Arias v. Univ. of Wash. Tacoma:

For purposes of the present motion, and resolving the disputed material facts in Plaintiff's favor, the Court finds:

Plaintiff's interaction with Defendant Vern Harner on April 20, 2023 was "momentary." Plaintiff mentioned she was thinking about focusing her zine project on women's rights and showed Harner her computer screen with a Google search for an article available; she "did not have any article open." Harner did not say much but told Plaintiff to make sure the source Plaintiff planned to use was reputable. Harner did not tell Plaintiff that her project idea violated social work values and ethics.

Either later that day or the next day, Harner identified and reviewed an article that Harner believed Plaintiff had open on her computer. Harner believed Plaintiff's planned zine project was on "the issue of 'trans' people sexually assaulting others in prison," a topic Harner found "so many issues with." One issue was Plaintiff's alleged reliance on the article as a source, which among other things, Harner identified as being "full of TERF and far right dog whistles and talking points." {TERF appears to refer to trans-exclusionary radical feminism.} Harner sought advice from Defendant Claudia Sellmaier, explaining Harner's impressions of Plaintiff to Sellmaier.

On April 27, 2023, Plaintiff presented Harner with her draft zine project sometime after 11:30 a.m. Harner planned three-to-five minutes with each student that morning. Harner did not identify why Plaintiff's project targeted transgender people or what specific social work standards Harner believed Plaintiff violated. Plaintiff expressed she did not understand why her project was not considered a social justice issue.

Harner became visibly upset reviewing and discussing the draft zine, eventually throwing their hands in the air and telling Plaintiff, "[t]his is targeting transgender." Their interaction ended and at some point Plaintiff asked to meet later that day with Harner, but Harner stated they were unavailable that day.

Sometime in the afternoon of April 27, 2023, Harner contacted the Dean of the School of Social Work (Defendant Keva Miller) to report the interactions with Plaintiff. Based on Harner's description of the events, Miller recommended Harner initiate a PSC referral.

At 2:12 p.m., Harner sent Plaintiff an email informing her they could not meet that afternoon. Harner directed Plaintiff to contact Sellmaier and Chris Barrans for any further questions or concerns. Harner told Plaintiff her draft project was "harmful and not aligned with social work values & ethics" and attached to the email three links for Plaintiff to review, but did not explain to Plaintiff why the draft project was harmful or not aligned with social work values and ethics. Harner also told Plaintiff further discussion could be had "about the intersection of trans rights and women's rights when that conversation is approached appropriately and in good faith."

By 2:50 p.m., 38 minutes after sending the email to Plaintiff, Harner had completed and emailed a Professional Standards Committee ("PSC") referral form. In their referral, Harner asserted Plaintiff's proposed zine project topic was "extremely anti-trans," that Harner suspected Plaintiff had sent Harner an anonymous email a few weeks prior, that Plaintiff did not believe her proposed topic was misaligned with social work values, and that Plaintiff "sees women's & trans rights as competing issues." As to why Harner decided not to inform Plaintiff of the PSC review request, Harner identified they had "connected" Plaintiff with the BASW chair and the faculty advisor and identified that "further escalation may include safety concerns." Nothing in the record identifies why Harner believed there were safety concerns. The PSC referral form also does not identify any social work standards that were violated.

The PSC convened a meeting on May 16, even after Plaintiff expressed concerns about the fact Harner had not tried to resolve the issue with her first. No one at the PSC meeting identified which social work standards were violated. The PSC committee also declined to identify the specific standards that were violated in email communications with Plaintiff after the PSC meeting. Only in Plaintiff's termination letter did Defendants identify what social work standards had been violated. The letter also fully credited Harner's description of the events of April 20 and 27. It explained that the reason Harner made the PSC referral on April 27 was because Plaintiff had not reconsidered her draft topic and "did not arrange to stop by Dr. Harner's office to discuss the matter further" on April 27. But the record shows Harner was not available to meet with Plaintiff after class on April 27, that Plaintiff was directed to speak with others, and that 38 minutes after communicating this information to Plaintiff, Harner submitted a PSC referral alleging a potential safety concern.

The court concluded that, based on this, plaintiff's First Amendment objections to the PSC referral could go to the jury:

Based on the above facts, a jury could find that Harner had a personal disagreement with Plaintiff's views on transgender issues, that this personal disagreement was the motivation for initiating the PSC referral, that Harner's personal disagreement tainted the PSC process, and that Defendants' ultimate decision to withdraw Plaintiff from the PSC program was based on personal disagreements with Plaintiff's views and not on defined professional standards.

The court also concluded the same about plaintiff's breach of contract claim:

Plaintiff asserted Harner did not comply with Manual language requiring that "individuals who are directly involved should make a concerted effort to resolve the concern prior to a referral to the PSC" and stated in her breach of contract claim that UWT failed to "follow[] the policy measures it had implemented and promised [Plaintiff]." Plaintiff also identified UWT's Mission Statement, Race & Equity Initiative, and Diversity Blueprint and other "fundamental principles of inclusion and expression embodied in its own written policies and promises" and asserted UWT violated its promise to "conform[] with academic standards espoused in governing documents as expressed above in the factual allegations." …

Here, the PSC guidelines found in the Program Manual directs that individuals, in this case Harner, involved in a concern "should make a concerted effort to resolve the concern prior to referral to the PSC." UWT also acknowledges it has "the obligation to maintain conditions conducive to freedom of inquiry and expression to the maximum degree compatible with the orderly conduct of its functions."

These provisions give rise to a reasonable expectation that a student, such as Plaintiff, would not face sanctions based on a professor's personal disagreement with the student's views on transgender issues and that the student would be given the opportunity to resolve a concern before being referred to the PSC.

Joan K. Mell (III Branches Law PLLC) represents Arias.

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Plaintiff Darryl Rice serves as a tenured and endowed associate professor of management for the Farmer School of Business at Miami University in Oxford, Ohio. For over a decade, Plaintiff has taught courses such as Diversity and Cross-Cultural Management, participated in Diversity, Equity, and Inclusion ("DEI") programming, and contributed to entities like DEI-based committees at Miami University. In April 2025, Miami University began to wind down certain programs and entities related to DEI. Specifically, the following entities were eventually discontinued: (1) the Office of Transformational and Inclusive Excellence, (2) the Farmer School of Business DEI Service Committee, (3) the Center for Student Diversity and Inclusion, (4) Miami Regional's Center for DEI, (5) the Department of Management DEI Service Committee, (6) Miami University's Across-the-Divide Conference, (7) the Office of Transformational and Inclusive Excellence Newsletter, (8) the Inclusive Excellence Faculty Fellows Program, (9) the DEI Mastermind Program, (10) the Diversity and Inclusion Networking Event, (11) DEI Professional Development Day, as well as other activities that Plaintiff had used to fulfill his service obligations. For purposes of Miami University's Tenure Track Guidelines, "service" obligations include "activities which contribute to the University's and/or the campus's mission," serving on committees, and providing continuing education programs if they are not already incorporated within the "teaching" category.

Miami University explained to Plaintiff that these closures were mandated by the Advance Ohio Higher Education Act ("S.B. 1"). That being said, Miami University began the process of closures and reorganization before S.B. 1 officially took effect. The Court pauses here to highlight particularly relevant portions of S.B. 1. This legislation commands that "the board of trustees of each state institution of higher education shall adopt and the institution shall enforce a policy" prohibiting, among other things, the following:

(1) Any orientation or training course regarding diversity, equity, and inclusion [unless an exception applies];

(2) The continuation of existing diversity, equity, and inclusion offices or departments; and

(3) Establishing new diversity, equity, and inclusion offices or departments….

Moreover, the statute reads: "Nothing in this section prohibits faculty or students from classroom instruction, discussion, or debate, so long as faculty members allow students to express intellectual diversity." …

Plaintiff sued, claiming that the law violated, among other things, the First Amendment, but the court disagreed:

It … proves helpful to contextualize this matter by emphasizing what is at issue and—perhaps just as importantly—what is not at issue. This is not a case involving allegations that the Government is compelling particular speech. This is not a case in which a university itself brings suit to enjoin a law. This is not a case in which students allege constitutional violations. This is not a case in which a plaintiff has been threatened with disciplinary action for certain speech. This is not a case involving allegations of a professor's speech being stymied in the classroom or on the campus green. Rather, this dispute centers around a professor who brings suit to enjoin a university to reestablish certain committees, programming, and events….

In the watershed case of Garcetti v. Ceballos (2006), the Supreme Court held "that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." The majority in Garcetti, however, left open whether this analysis "would apply in the same manner to a case involving speech related to scholarship or teaching." The Sixth Circuit spoke on this precise question years later in Meriwether v. Hartop (6th Cir. 2021), by holding that "professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship." The term "core academic functions" has since been extended to encompass—at least as to the facts in one particular case—a professor's panel remarks that stemmed from his scholarship and subject of expertise.

On the one hand, Defendants assert that Plaintiff's participation in the DEI-related activities does not constitute teaching, scholarship, or "core academic functions" as contemplated in Meriwether. It is worth noting that Plaintiff confirmed during the hearing that his allegations do not address his teaching, scholarship, or research. Instead, Plaintiff contends that his participation in the DEI-related entities amounted to core academic functions because Miami University's policy lists "professional and institutional service and committee assignments" as among the "primary duties" of tenured faculty. This line of reasoning might suggest that "professional and institutional service and committee assignments" are part of Plaintiff's official duties as a tenured professor. However, without more, it does not necessarily follow that such official duties are "core academic functions, such as teaching and scholarship." …

Plaintiff relies on Meriwether. The facts of that case are quite distinct, however. The professor in Meriwether brought suit because the university compelled him to use certain in-classroom speech (i.e., the preferred pronouns of a student) at the threat of discipline. Accordingly, Meriwether involved "a professor's in-class speech to his students" and thus implicated the quintessentially core academic function of teaching students within the classroom. Here, Plaintiff does not contend that his in-class speech has been restricted in any way…. And, even beyond the classroom, Plaintiff does not allege that he has been compelled or barred from speaking. Rather, Plaintiff argues that Defendants have violated his First Amendment rights by discontinuing certain committees, university-created entities, and programs….

Here, Miami University created certain programs, committees, and entities but recently decided to discontinue them. Plaintiff specifically names (1) the Office of Transformational and Inclusive Excellence, (2) the Farmer School of Business DEI Service Committee, (3) the Center for Student Diversity and Inclusion, (4) Miami Regional's Center for DEI, (5) the Department of Management DEI Service Committee, (6) Miami University's DEI Conference, (7) the Office of Transformational and Inclusive Excellence Newsletter, (8) the Inclusive Excellence Faculty Fellows Program, (9) the DEI Mastermind Program, (10) the Diversity and Inclusion Networking Event, (11) DEI Professional Development Day, as well as other activities that Plaintiff had used to fulfill his service obligations….

[T]he record remains undeveloped as to the precise nature of these entities and the extent of Plaintiff's participation. Nuance in this realm deserves attention because "the First Amendment must always be applied in light of the special characteristics of the environment in the particular case." Since Plaintiff has not provided sufficient allegations and legal reasoning to demonstrate how discontinuation of his preferred university programs and entities amounts to a violation of his First Amendment rights, he has not shown a strong likelihood of success…..

Ann Yackshaw (Ohio AG's office) and Heather Van Hull, Richard L. Creighton Jr., and Christo Valantou Fosse (Keating Muething & Klekamp) represent the defendants.

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A recent YouGov poll, conducted in early May, finds that 38% of Americans approve of the job the Supreme Court is doing, while 45% disapprove. That -7 net disapproval may not seem very impressive. But it's way better than the other two branches of government. In recent surveys, an average of 58% disapprove of Donald Trump, compared to 38% who disapprove.  Congress' approval rating is much lower, still.

The Court's current numbers are also a modest improvement from polls conducted in mid to late 2025. At that time, an Economist/YouGov poll found a net -16 disapproval (51-35), Gallup found a -10 (52-42), and Quinnipiac a -13 (53-40). In fairness, a June 2025 YouGov poll found almost identical results to their most recent one (45% disapprove, 40% approve). But that appears to have been an outlier at the time.

To the extent that the Court has become less unpopular, it may be in part because of the recent decision in the tariff case (which I helped litigate). The May YouGov poll found 58% approving of the result, while only 25% disapprove. An earlier YouGov poll, conducted right after the ruling, found 60% approve and 23% disapprove. Thus, I may have helped make the Supreme Court a little more popular (or, rather, less unpopular). I'm sure I will get invited to all the cool SCOTUS holiday parties this year (OK, almost certainly not….).

Before going further, I should emphasize that public opinion is a poor barometer of the quality of the Court's decisions. Survey data shows most Americans know very little about the Constitution and the Court's work, and a majority cannot even name one Supreme Court justice. Similarly, I do not claim that broad public support for the tariff decision proves that the justices go it right (though I do in fact believe they got it right, for other reasons). Ideally, the justices should not be guided by public opinion. Insulating them from it is one of the reasons why they have life tenure.

But, as I have noted in the past, public opinion about the Court does matter in some ways. A highly unpopular Court is more vulnerable to measures to curb or even destroy its authority, such as court-packing. And the Court can more easily strike down major policy initiatives of the president and other political leaders if it knows doing so will enjoy substantial public support. If the Court becomes sufficiently unpopular, politicians could potentially defy its rulings with little fear of political consequences. Thus, while it is unlikely the Court decided the tariff case as it did merely because the tariffs are unpopular, that unpopularity may have made it easier for the justices to strike down one of Donald Trump's signature policy initiatives.

For these and other reasons, the Court's degree of public approval can matter. That's true even though the public's assessment of the Court's work says little about whether the justices are actually doing a good job or not. Indeed, if the Court were to become immensely popular, I would worry they weren't doing enough to protect the rights of unpopular minorities.

In addition to the Court's overall approval rating and the question about tariffs, the YouGov survey has several other interesting results. They also did approval ratings for all the individual justices:

Interestingly, the three liberal justices seem to have the highest approval ratings. All three  have net positive ratings, while all six conservatives are net negative. But I would not give too much credence to these numbers. As noted above, most Americans cannot even name a Supreme Court justice, and many of those giving opinions in the YouGov survey probably know little or nothing about the justices in question. Even as it stands, for each of the justices 33% or more said they had no opinion, except Clarence Thomas (about whom only 27% had no opinion).

In addition to the tariff case, YouGov also asked respondents whether the Court should overturn Obergefell v. Hodges (the 2015 ruling striking down state laws banning same-sex marriage); 51% of respondents said "no" and only 24% said "yes." They similarly asked about the birthright citizenship case currently before the Court, on which issue 53% said the Court could ruled that "[a]ll children born in the U.S. should automatically become
citizens," while  39% wanted it to rule that "[o]nly those children born in the U.S. whose parents are citizens or lawful permanent residents should automatically become citizens."

As with the tariff case, I agree with majority public opinion on both of these issues. I have argued the Court should rule against Trump in the birthright citizenship case, and that Obergefell v. Hodges is a landmark civil rights decision, even though its reasoning should have been better. It all goes to show I am a true Man of the People! OK, maybe not… In reality, I hold all kinds of unpopular views. And I think majority public opinion is often highly ignorant and influenced by bias.

On a slightly more serious note, Obergefell's strong popularity is one of the reasons why I think it is unlikely to be overruled. And the unpopularity of Trump's position on birthright citizenship is one reason why the Court probably won't hesitate to rule against him on this issue if a majority of justices believe he's wrong (as seemed likely, though not certain, to be the case after oral argument).

There are several other interesting questions in the survey, which I may post about it in the future, if time allows. For example, the poll confirms that term limits for Supreme Court justices are popular, while court-packing is not; this despite the fact that the question on the latter was favorably worded for the pro-packing side, inasmuch as it asked about "expanding the size of the Supreme Court" without mentioning that the reason for doing so was to change the ideological composition of the Court to one more favorable to one side of the political spectrum.

In sum, the public's view of the Court is only modestly negative, and much less so than its view of the president and Congress. That's hardly a rousing endorsement. But it's a lot better than the other two branches of government, and that difference may provide some protection against political attacks on judicial independence.

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This afternoon, Justice Alito extended the administrative stays pausing the order of the U.S. Court of Appeals for the Fifth Circuit halting the prescription of the abortion medication mifepristone via telemedicine. The new deadline is Thursday (when the Court is also expected to issue one or more opinions in argued cases).

What explains the extension? The justices are presumably deciding what to do about the stay applications. One possibility is that they will either grant or deny the stay requests, with one or more justices filing opinions. Another possibility is they are considering whether to grant certiorari before judgement to consider the threshold standing question, as the Fifth Circuit's order created a split with the U.S. Court of Appeals for the Ninth Circuit.

One factor potentially complicating the Court's consideration of these stay requests is the failure of the Food and Drug Administration to file anything with the Court. This complicates things because in the usual course the federal government is among those asking the Court to intervene when a lower court blocks a federal action. The Court generally assumes that orders blocking federal action cause irreparable harm to the federal government, and such harm is generally a threshold consideration for the Court to consider providing extraordinary relief. But here the FDA (or, rather, the Solicitor General) is silent, suggesting that the federal government is not too concerned about the Fifth Circuit's order. It also means there is no thumb on the scale when the justices balance the remaining equities.

Insofar as the justices' sense of which party is likely to prevail on the merits will do the work, I would think a stay will ultimately be granted, unless the justices decide to grant cert. Louisiana's arguments for Article III standing, like those in the AHM litigation, sound superficially plausible, but wilt under examination. Even assuming Louisiana has alleged cognizable injuries, it remains fairly speculative that the alleged injuries are fairly traceable to the FDA's decision to allow mifepristone prescriptions via telemedicine and quite uncertain that blocking the 2023 regulatory change would provide any meaningful redress. It is fair to complain that this could mean no one has standing to challenge FDA drug approvals or regulatory relaxations, but so be it.

It is fair to complain that the Court has not been particularly vigilant enforcing limits on state standing claims in recent years (U.S. v. Texas notwithstanding), but that's more an argument for granting cert, and ending "special solicitude" for state standing claims, than for compounding the error. Indeed, curtailing state standing is a necessary (but not sufficient) step the justices should take if they wish to scale back the demand for emergency relief on the interim docket.

Meanwhile, those who are generally critical of the Court's handling of the "shadow docket" must feel a bit conflicted. On the one hand, they surely want an immediate order blocking the action of the Fifth Circuit. On the other hand, they generally insist that the justices explain themselves, and drafting opinions takes time. It is almost as if there are trade-offs involved.

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From today's decision by Judge Jeannette Vargas (S.D.N.Y.) in Goldstein v. CUNY:

On January 9, 2026, Plaintiff Avraham Goldstein ("Plaintiff") filed his Third Amended Complaint in this action. Plaintiff alleges that he is employed as an assistant professor at City University of New York, Borough of Manhattan Community College.  He is an Israeli citizen, an Orthodox Jew, and a Zionist. Plaintiff alleges that he was the subject of discrimination and retaliation after he complained about a program on campus called the "Palestinian Solidarity Series." Plaintiff asserts claims for religious and national origin discrimination and retaliation under Title VII of the Civil Rights Act of 1964, New York State Human Rights Law ("NYSHRL"), New York City Human Rights Law ("NYCHRL"), and New York Civil Rights Law ("NYCRL"), as well as claims under 42 U.S.C. § 1983 for violation of his rights to due process and equal protection.

Defendant Nadia A. Saleh ("Defendant") brings this motion to strike Paragraphs 34 through 46 of the Third Amended Complaint. These paragraphs purport to outline the historical origins of the current state of Israel, beginning in Biblical times, then outlining events that took place during the Roman empire through the present day. For the following reasons, Defendant's Motion to Strike is GRANTED.

Pursuant to Rule 12(f), a court "may strike from a pleading … any redundant, immaterial, impertinent, or scandalous matter." … "'Immaterial' matter is that which has no essential or important relationship to the claim for relief, and 'impertinent' material consists of statements that do not pertain to, and are not necessary to resolve, the disputed issues." To prevail on a Rule 12(f) motion, the movant must show "(1) no evidence in support of the allegations would be admissible; (2) that the allegations have no bearing on the issues in the case; and (3) that to permit the allegations to stand would result in prejudice to the movant."

Although motions to strike are disfavored, Defendant has met the high bar required for such a motion in this case. Evidence regarding the history of the Jewish state, including events that occurred several thousand years ago, have no bearing on whether Plaintiff was subject to discrimination or retaliation on the basis of his nationality or religion. Requiring Defendant to either admit or deny allegations regarding historical events that took place in 136 C.E. would serve no purpose. Moreover, to the extent certain of these paragraphs set forth controverted and charged contentions regarding the creation of separate Israeli and Palestinian states in the Middle East, requiring Defendant to respond to those immaterial allegations would be prejudicial.

Here are the struck allegations:

34. The Jewish people originated in the Middle East and established their homeland in what is termed in the Bible as the Land of Israel, where for over 1,400 years they lived either as a sovereign nation, in the united kingdoms of Israel and Judah (hence the term, "Jew") or, at times, a nation under occupation by foreign empires. The City of Jerusalem, also called "Zion" in the Bible, was its capital.
35. In approximately 70 C.E., the Roman empire conquered the Jewish nation, destroyed the Jewish Temple in Jerusalem, and enslaved large numbers of Jews from the Land of Israel and transported them all over the Roman Empire.
36. In 136 C.E., the Roman empire defeated the final Jewish rebellion and exiled almost all of the remaining Jews from the Land of Israel, where they lived in Diaspora as stateless and often persecuted refugees, forcibly evicted from country to country, earning the moniker, "the wandering Jew".
37. The Roman conquerors, in an attempt to wipe out the memory of Jewish sovereignty, renamed Israel and Judah "Palestine."
38. The Land of Israel continued to be governed by foreign empires, most recently by the Ottoman Empire based in Turkey beginning in approximately the 16th Century.
39. While a minority of Jews remained in the Land of Israel across the millennia even after the Roman exile, with the rise of national political self-determination across the world in the 1800's, Jews began returning from the Diaspora around the world to the Land of Israel in increasing numbers, purchasing or renting land subject to the Turkish Ottoman empire, with the hope of someday re-gaining Jewish political self-determination, commonly called Zionism.
40. In 1918, Turkey was defeated in World War I after allying itself with Germany, and Britain was given a mandate to govern Palestine, the site of the biblical Land of Israel. During this time, Jews continued returning to the Land of Israel, purchasing or renting land and housing.
41. By the 1940's, Jews were the majority population in a significant portion of the Land of Israel.
42. In 1947, the United Nations ("UN") General Assembly voted to end the British Mandate by partitioning Palestine, the site of the biblical Land of Israel, into two states: a re-establishment of a sovereign Jewish state in that portion of the Land of Israel in which the Jewish population was the majority, and the establishment, for the first time in history, of an independent Arab state in the portion of the Land of Israel where the Arab population was the majority ("United Nations partition plan"). This is despite that fact that no independent Arab state ever existed within Biblical Israel until that time, as Arab settlement in Israel took place exclusively when the land was under occupation by foreign powers.
43. The Jewish leadership in the Land of Israel accepted the United Nations partition plan, and on May 14, 1948, declared the establishment of the Jewish State of Israel in the portion of the land allotted to it by the UN resolution.
44. Arab leadership rejected the United Nations partition plan, rejected Jewish self-determination, declared war, and vowed to drive all the Jews into the sea.
45. The Jewish state of Israel survived that war and is now in its eighth decade.
46. In the 1948 war, the neighboring countries of Egypt and Jordan conquered most of the land allotted in the 1947 U.N. resolution to the future independent Arab state, but did not establish an independent Arab state in those areas.

These items followed the statements, which were not struck, that "Plaintiff is a Zionist by dint of his religion and his national origin" and "Zionism is the movement for the re-establishment, and now the development and protection, of a sovereign Jewish nation in its ancestral homeland. Zionism is not just a political movement; for the vast majority of Jewish people across time and space, including Plaintiff, Zionism is and always has been an integral part of their Jewish, often religious, identities."

The post Court Strikes Allegations About Israeli History from Lawsuit Alleging Anti-Semitism at CUNY appeared first on Reason.com.

From David Wecht's public statement:

Pennsylvania Supreme Court Justice David Wecht makes this statement in his personal capacity. This statement is not made on behalf of any other person, nor on behalf of the Supreme Court or any other institution.

The people of Pennsylvania elected me. They put their faith in me, and I reciprocate. I have faith in Pennsylvanians, and they deserve to know the following.

In 1998, my wife and I were married at Pittsburgh's Tree of Life Congregation, on whose Board of Trustees I served. Twenty years later, in the very same sanctuary where our wedding occurred, the worst massacre of Jews in American history was perpetrated. That terror came from the right. Jew-hatred has always festered on the fringe of that sector.

In the years that have followed, that same hatred has grown on the left. Increasingly, it has moved from the fringe to the mainstream. It is the duty of all good people to fight this virus, and to do so before it is too late .

My jurisprudence and adjudication have always been independent, and they always will be. Now, my voting registration reflects that independence as well.

From 1998 to 2001, years that preceded my judicial career, I served as Vice-Chair of the Pennsylvania Democratic Party. In the quarter century that has passed since then, the Democratic Party has changed. Nazi tattoos, jihadist chants, intimidation and attacks at synagogues, and other hateful anti-Jewish invective and actions are minimized, ignored, and even coddled. Acquiescence to Jew-hatred is now disturbingly common among activists, leaders and even many elected officials in the Democratic Party.

I can no longer abide this. So, I won't. I am no longer registered within any political party.

As a jurist, I always have, and always will, vindicate the legal rights that haters and extremists of all stripes enjoy in our country and in our Commonwealth . This is the land of freedom to which my mother and my father's parents immigrated, seeking refuge and opportunity . They found it, and my mother and father were both proud to wear the uniform and serve in the armed forces of the United States. I have dedicated most of my adult life to public service in this nation and Commonwealth, and most of that to rendering impartial justice in the judicial branch.

In Pennsylvania, and in the United States of America, we enjoy robust rights and liberties, bequeathed to us by our great Founders. These freedoms have helped to make this the greatest civilization that the world has ever seen. There have been other great civilizations in the past, and almost all of them have deteriorated and declined when Jew-hatred grew and metastasized.

We all should awaken now to what is happening. I am confined to a judicial role, and in that role, I maintain independence at all times and in all respects. My voting registration now reflects my independence as well. As Shakespeare's Polonius told his Laertes: "This above all: to thine own self be true."

It is my hope that Pennsylvanians, and Americans, of all viewpoints and backgrounds will oppose and resist the scourge of Jew-hatred before it undermines what our ancestors have built here.

Note that, unlike federal judges but like the judges in many states, Pennsylvania Supreme Court Justices are elected officials, and ones first elected in clearly partisan elections. From the Ballotpedia entry for Justice Wecht:

David Wecht is a judge of the Pennsylvania Supreme Court. He assumed office on January 7, 2016. His current term ends on December 31, 2035.

Wecht ran for re-election for judge of the Pennsylvania Supreme Court. He won in the retention election on November 4, 2025.

Wecht first became a member of the Pennsylvania Supreme Court through a partisan election. He was first elected to the court in 2015. To read more about judicial selection in Pennsylvania, click here.

In 2020, Ballotpedia published Ballotpedia Courts: State Partisanship, a study examining the partisan affiliation of all state supreme court justices in the country. As part of this study, we assigned each justice a Confidence Score describing our confidence in the degree of partisanship exhibited by the justices' past partisan behavior, before they joined the court. Wecht received a confidence score of Strong Democrat. Click here to read more about this study.

The post Elected Pennsylvania Supreme Court Justice David Wecht Switches from Democrat to Independent appeared first on Reason.com.

Kyle Andrew Edwards, 59, of Alexander, N.C., appeared in federal court today and pleaded guilty to a "doxxing" charge for posting online the home address of a United States Supreme Court Justice with the intent to threaten, intimidate, or incite a crime of violence against the Justice, announced Russ Ferguson, U.S. Attorney for the Western District of North Carolina….

According to information contained in documents filed as part of Edwards' plea and the plea hearing, from April through June 2026, Edwards frequently used an online social media account that was publicly accessible to post comments critical of certain United States Supreme Court Justices. Many of the posts were threatening in nature or were responses to threatening comments made by other users. For example, on June 27, 2025, Edwards posted that the Supreme Court "must be destroyed." Two days later, on June 29, Edwards posted that a certain Supreme Court Justice should "buy Kevlar robes."

According to court documents, on April 8, 2025, Edwards used his social media account to post the correct home address of a United States Supreme Court Justice. On the same day, Edwards posted partial or historical information about the neighborhoods or former home addresses of two other United States Supreme Court Justices. On the day Edwards publicly disclosed the Justice's home address, he made several threatening posts toward other Justices. For example, Edwards posted that a different Justice's home address was unavailable online "to prevent people from assassinating him." Edwards also posted that Justices should "think again" if they thought that "their families are safe." Edwards also encouraged others to "start dragging the SC out by their robes," and to turn the Justices "into charcoal." Court documents show that Edwards posted these comments publicly on his own social media account and within conversations in which some other posters were also making similar threats….

To be specific, the charcoal statement was apparently "turn all these motherfuckers into charcoal."

Whether the law can generally bar publishing the home addresses of government officials is an unsettled and difficult question; compare Kratovil v. City of New Brunswick (N.J. 2025) with Publius v. Boyer-Vine (C.D. Cal. 2017), Brayshaw v. City of Tallahassee (N.D. Fla. 2010), and Sheehan v. Gregoire (W.D. Wash. 2003). But the relevant provision of the relevant federal statute only forbids publishing such home addresses (or certain other information):

1. with the intent to threaten, intimidate, or incite the commission of a crime of violence against that covered person, or a member of the immediate family of that covered person; or
2. with the intent and knowledge that the restricted personal information will be used to threaten, intimidate, or facilitate the commission of a crime of violence against that covered person, or a member of the immediate family of that covered person.

Such a statute, properly interpreted, would likely fit within the First Amendment exceptions for threats, incitement, or solicitation.

You can also read the specific criminal charges and the statement of factual basis for the plea agreement.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post "Man Pleads Guilty to 'Doxxing' Home Address of United States Supreme Court Justice" with Intent to Threaten or Incite Violence appeared first on Reason.com.

From Justice Gerald Lebovits (Manhattan trial court) in Tuesday's Garlington v. Austin; defendant Burstiner goes by "they/them," but plaintiff had apparently referred to Burstiner as "him":

The branch of defendants' motion to … requir[e] plaintiff to use correct names and pronouns … is denied…. There is … no showing of any actual "misgendering" or any legally cognizable injury arising from it. New York recognizes no tort of "misgendering." …

Burstiner had sought an order "requiring Plaintiff to use correct names and pronouns for all parties, as well as damages for each instance of deliberate misgendering that has occurred and continues to occur," and argued,

New York Penal Law §240.31 criminalizes aggravated harassment in the first degree when conduct is motivated by bias regarding "gender, gender identity or expression" or other protected characteristics. Each instance of deliberate misgendering constitutes a separate violation under this Class E felony provision.

New York Civil Rights Law §79-n provides civil remedies for "bias-related violence or intimidation" based on gender identity. The statute covers "intimidation" as well as violence, and New York courts have recognized that persistent misgendering can constitute bias-related harassment under this provision.

Garlington's lawyer had responded,

Item IV seeks to "ORDER Plaintiff to cease his perpetual pattern of threats, harassment, and mobilization of third parties creating substantial risk of harm to victims who identify themselves publicly, in addition to requiring Plaintiff to use correct names and pronouns for all parties, as well as damages for each instance of deliberate misgendering that has occurred and continues to occur." It is impossible to know what is meant here. It is far too vague and general. Moreover, directing a party "to use correct names and pronouns" is an obvious First Amendment violation …. And misgendering is not a tort.

Burstiner had replied,

Time and again, Counsel demonstrates the uncouth, disrespectful, dehumanizing, sanctionable conduct that characterizes this outrageous action, spitting on any deference he purports to show this Honorable Court. He gives up the ghost as a transphobe twisting the First Amendment to mean, in effect, "Intentionally misgendering you is free, not hate, speech," a hollow, disingenuous notion echoing willfully ignorant, intellectually dishonest predators who weaponize incompetence as our social fabric tears at the seams in this 'Age of Information'. Truth exists and, in this case, it is known.

Unlike isolated incidents that might constitute "petty slights," wanton unwillingness to accept the truth of an individual's gender expression or pronouns demonstrates a total disregard for facts of reality. The distortion of 'First Amendment Rights' by obviously bad faith actors who serve against the interests of justice impugns the Opposition's credibility beyond repair. Defendants respectfully request this Court direct all parties to use appropriate designations consistent with each party's gender identification, as failure to do so appears calculated to harass and intimidate.

While misgendering is not a tort, it absolutely is a qualifier that helps classify Plaintiff's relentless, ubiquitous misgendering over three (3) years, including deceased persons who cannot defend themselves, as Aggravated Harassment in the First Degree, a punishable Class E felony. Counsel is reminded that perpetuating it showcases exactly the kind of severe, pervasive assault prohibited by New York professional conduct rules and is, in fact, grounds for disbarment under New York's Amended Rule 8.4(g), effective June 10, 2022.

There's also a lot more in the case related to other matters, which I blogged about earlier today. Robert A. Altman represents plaintiff.

The post "New York Recognizes No Tort of 'Misgendering'" appeared first on Reason.com.

Nevertheless, because the genocide lie is so common in public discourse over Gaza, I thought it would be useful to write a piece debunking the claim, though I wasn't sure where I would place it. Serendipitously, Skeptic Magazine solicited an article for me, giving me the opportunity to present my case in about four thousand words, with footnotes.

I also wrote a much shorter version for my Times of Israel blog. And an even shorter synopsis follows below:

The accusation that Israel is committing "genocide" in Gaza has become commonplace in protests, university activism, social media campaigns, and international legal rhetoric. But one striking feature of the debate is how little attention is paid to a basic question: what would genocidal behavior actually look like, and does Israel's conduct resemble it?

The answer is plainly no.

Genocide is not simply a war that causes extensive civilian casualties. It is the deliberate attempt to destroy a people as such. Historically recognized genocides share recognizable characteristics: civilians are targeted precisely because of their identity, and the perpetrators seek maximum civilian death rather than military victory.

Israel's conduct in Gaza looks very different.

To begin with, Israel has repeatedly taken steps that are fundamentally inconsistent with exterminatory intent. Before major operations, the Israeli military has issued evacuation warnings through phone calls, text messages, leaflets, and media announcements. It has established humanitarian corridors and periodically paused military activity to facilitate civilian movement and aid delivery. It has employed "roof-knocking" procedures designed to warn civilians before airstrikes. Armies attempting genocide do not warn civilian populations to leave targeted areas in advance.

The broader strategic picture points in the same direction. Israel possesses overwhelming military superiority over Hamas. If Israel's objective were truly the destruction of Palestinians as a people, the death toll could have been vastly higher within a very short time. Instead, Israel has fought a grinding urban campaign focused on Hamas infrastructure, tunnel systems, command centers, rocket launch sites, and militant leadership. The fact that civilian casualties have nevertheless been severe reflects the reality of urban warfare against an armed group deeply embedded in civilian areas, not a campaign aimed at exterminating Palestinians as such.

Indeed, Hamas's military strategy depends heavily on operating within densely populated civilian zones. Weapons are stored in residential neighborhoods, fighters operate from civilian buildings, and command infrastructure has been constructed beneath urban areas. None of this relieves Israel of its obligations under international humanitarian law. But it does provide an obvious military explanation for large-scale civilian casualties,

The genocide accusation also struggles to explain conduct that makes little sense if extermination were the goal. Israel has facilitated substantial humanitarian aid into Gaza despite the obvious military disadvantage that aid creates by potentially benefiting Hamas. Israeli officials have repeatedly coordinated aid deliveries, fuel transfers, field hospitals, and medical evacuations under enormous international pressure and domestic controversy. Again, critics may argue these efforts are inadequate. But inadequate humanitarian precautions are not the same thing as an intent to destroy an entire population.

One must also note the political context. Accusations that Israel is genocidal long predate the current war. Versions of the claim were promoted in Soviet anti-Zionist propaganda after the Six-Day War and later reemerged at the 2001 Durban conference, where activists portrayed Zionism itself as inherently racist and genocidal. In many cases, the conclusion preceded the evidence.

The danger of stretching the term genocide beyond recognition is substantial. If every brutal urban war involving high civilian casualties becomes genocide, then the concept loses the distinctive moral and legal meaning that made it powerful in the first place.

The post Israel's Conduct in Gaza Does Not Resemble Genocide appeared first on Reason.com.

In this action, plaintiff, Erik Garlington, brings claims for defamation … against defendants Nicole Austin (his former spouse) and Mark Burstiner. Plaintiff, a musician [see this Rolling Stone story -EV], alleges that defendants made defamatory statements that accuse plaintiff of criminal conduct, including rape, sexual assault, grooming minors, sex trafficking, serial killing, and felonies.

Plaintiff asserts that defendants created a website titled "Known Rapist Erik Garlington" and posted allegedly defamatory statements on social media platforms like YouTube (a six-hour video). Plaintiff further alleges that defendants repeated the statements to colleagues, employers, and the press. { Plaintiff points to a fake website defendants created, defendant's six-hour YouTube video, social-media posts, and direct emails to festival organizers and industry contacts that have caused ongoing reputational and economic harm.} Plaintiff represents that defendants "posted his home address online and left taunting messages promising violence," causing him to fear for his and his partner's safety. Plaintiff asserts that the statements harmed his reputation and his professional activities as a musician….

Speech may be enjoined when it (1) "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (id. [internal quotation marks omitted]); (2) is "considered part and parcel of a course of conduct deliberately carried on to further a fraudulent or unlawful purpose"; or (3) risks harm to recognized personal or business reputation or privacy (see Dennis v Napoli(N.Y. App. Div. 2009) [holding that communications that "cause injury to plaintiff's "reputation, jeopardize her employment, and otherwise unnecessarily intrude upon her right to privacy" are not constitutionally protected]; Bingham v Struve (N.Y. App. Div. 1992))….

Plaintiff is a private figure. His public presence is confined to his artistic work as a singer and guitarist. Nothing before the court suggests that he has sought publicity beyond that narrow music-industry sphere. The challenged statements, however, do not concern his music career. Accusations that he is a rapist, a felon, or a serial killer, or that he groomed minors, sexually trafficked his partner, or engaged in other violent or predatory conduct, bear no demonstrated connection to the subject on which he has sought any public attention.

At this stage, there is no evidence that plaintiff has spoken publicly about, invited scrutiny of, or otherwise thrust himself into public debate concerning criminality, mental-health conditions, or intimate-partner behavior—topics wholly distinct from the field in which he has any arguable public presence. {A small subset of statements arguably touches plaintiff's musical career—such as claims that he "stole songs," that "a colleague in the music industry, Bartees Strange, [did not] okay a lyric referencing him," or that "his band was dropped by all representation." Those statements fall within the limited sphere in which plaintiff has sought publicity—the music industry. The court therefore declines to impose an injunction against statements of that nature.} Accordingly, plaintiff need not show that defendants acted with actual malice when making their statements to be successful on his defamation claim.

Plaintiff alleges that defendants published false statements accusing him of rape, sexual assault, grooming minors, murder, and trafficking. He submits screenshots of defendants' posts, emails, and social-media communications containing these accusations, as well as the website titled "Known Rapist Erik Garlington." He also provides emails that defendant Mark Burstiner allegedly sent to music-festival organizers and professional contacts repeating the accusations and urging them to cut ties with him. Plaintiff alleges that the statements are false and have caused reputational and professional harm.

Defendants argue that the statements are substantially true. However, the materials they submit—largely private communications and narrative exchanges—do not provide legitimate evidentiary basis supporting the criminal accusations. Courts have rejected similar attempts to justify serious criminal allegations with uncorroborated or unsupported assertions. (See Bingham.)

Plaintiff has demonstrated a likelihood of success on the merits of his defamation per se claim….

{On this record, plaintiff has shown that continued direct contact with his personal and professional network would inflict irreparable injury.} The record reflects that defendants directed, through emails and other direct communications, their accusations of rape, murder, sexual assault, grooming minors, and trafficking to plaintiff's professional contacts and colleagues. Plaintiff also attests that defendants contacted his family and friends with similar accusations and posted his home address online—highly intrusive conduct. In addition, Burstiner's messages to plaintiff's professional acquaintances asking whether they intended to cut ties with him demonstrate a deliberate effort to interfere with plaintiff's professional relationships and livelihood. Courts have recognized that targeted outreach to third parties with serious, unverified accusations causes reputational, professional, and emotional harm that cannot be remedied by money damages…..

The balance of equities tips in plaintiff's favor. The harm he might suffer due to the promulgation of criminal accusations against him outweighs any injury defendants might incur due to the injunction. Moreover, the relief plaintiff seeks on this motion is limited. Plaintiff does not seek removal of defendants' website or other existing public postings …. He seeks "a preliminary injunction against further defamatory actions or statements by defendants of and concerning the plaintiff, during the pendency of this action."

Defendants are therefore enjoined from directly contacting plaintiff's professional contacts, colleagues, family, or friends by email, message, telephone, or other direct communication and from publishing or posting statements which falsely accuse plaintiff of rape; grooming or abusing minors; engaging in nonconsensual sexual conduct or sex trafficking; being a felon; being a serial killer; or having killed or caused the death of another person….

I argued in my  2019 Penn. L. Rev. Anti-Libel Injunctionsarticle that (1) permanent injunctions barring the repetition of statements found to be libelous, entered after a judgment on the merits—generally a jury trial, unless the defendant agrees to a bench trial or fails to appear—are constitutional, but (2) preliminary injunctions, entered prior to any judgment on the merits, are generally unconstitutional prior restraints, and (3) injunctions in any event can't categorically ban all direct contacts with plaintiff's professional contacts, colleagues, family, or friends, as this injunction purports to do. Many cases so hold, as to all of these propositions. But a few cases have indeed allowed preliminary injunctions limited to statements that are tentatively found to be libelous, including in New York. (Query whether the "publishing or posting statements" part of this particular injunction is justified because it is limited to statements which "falsely accuse plaintiff"; I suggest in my article that this might make a preliminary anti-libel injunction justifiable, since a defendant couldn't be punished for violating the injunction unless at the contempt hearing it is proved that the statements are indeed false, though much depends on the details of how the injunction would be enforced.)

The court also refused to grant defendants' motion seeking an injunction against the plaintiff:

The branch of defendants' motion to enjoin plaintiff from threatening or harassing defendants; [and] mobilizing third part[ies] to do …. The record contains no evidence of any true threats. The cited statements—that "a million people from here to Japan will know your names and faces"—are rhetorical commentary, not threats of unlawful conduct. The references to "harassment," "mobilization," and "harm" rest on speculative interpretations of online speech, not on any imminent or concrete danger….

Defendants also seek orders requiring the removal of publications and enjoining plaintiff from posting about defendants on social media (items 7 and 8). They seek removal of plaintiff's May 21, 2025, Instagram post of rap lyrics: "He gon' end up murdered, he gon' end up dead" and "Every time I get a new bag, put it on a opp head." Defendants provide insufficient context to construe plaintiff's posting of those lyrics as a threat toward them. That plaintiff posted the lyrics the night before a court appearance is insufficient without more.

Defendants also seek to prohibit plaintiff from "mobilizing third parties" as shown by his statement that "a million people, from here to Japan, know your names, faces" (item 9). Read within the context of the email in which it originates, however, that statement does not sound in threats, imminent harm, or defamation….

The branch of defendants' motion to enjoying "[p]laintiff from surveillance or monitoring of Counterclaimants' activities, including but not limited to making statements about their physical reactions or presence at locations" (item 10) is denied. Defendants provide no evidence of surveillance. Plaintiff's message to Burstiner that "I heard your hands were TREMBLING when you though I was at your house" is mere hyperbole….

Richard A. Altman represents plaintiff.

The post N.Y. Court Blocks Rape Accusers from Repeating Their Allegedly False Accusations appeared first on Reason.com.

This case arises from the firing of respondent John Matze, CEO of the former social media company, Parler LLC. Parler was a social media platform that touted its commitment to free speech. However, Parler was eventually deplatformed from Apple and Amazon app stores following allegations that the app was used by participants in the January 6, 2021, incident at the U.S. Capitol. In the aftermath of the deplatforming, Matze was fired, and he subsequently wrote a memorandum commenting on the circumstances of his firing. This memorandum was leaked and reported on by various news sources, including Fox Business.

Appellant Dan Bongino—then a political commentator, radio show host, and Parler shareholder—published a Facebook Live video on his Facebook page in response to Matze's memorandum and public statements. Bongino asserted that Matze's narrative regarding the circumstances of his firing was untrue, including statements that some "really bad" and "terrible" decisions had been made "by people on the inside" that "led to us getting put down by Amazon and others," costing the company its "product stability." Bongino further claimed that Bongino and his Parler colleagues were more committed to free speech and product stability than Matze.

Matze sued for, among other things, defamation, but the court rejected the claim, concluding that Bongino's statements were opinions and therefore not actionable:

To determine whether a statement is one of opinion or fact, this court asks "whether a reasonable person would be likely to understand the remark as an expression of the source's opinion or as a statement of existing fact." Opinion statements are incapable of being verifiably true or false. Further, we do not parse each word or detail in a statement to determine whether it is defamatory, rather, "the determinative question is whether the gist or sting of the statement is true or false." "In cases involving political comment, there is a strong inclination to determine the remarks to be opinion rather than fact." See also Herring Networks, Inc. v. Maddow (9th Cir. 2021) (concluding that "the broad context" of liberal television host's show makes it more likely audiences will expect host's statements to be opinions).

We conclude that appellants met their burden under prong one. In reviewing the evidence presented by Bongino, including the transcript of the statements at issue, we conclude that Bongino's video expressions tend to show a political commentator on a hyperbolic rant. Although Bongino purported to provide viewers with "the real story" and "correct the record" regarding Matze's termination, the gist of Bongino's statements as a whole is that he believed that himself and others at Parler were more committed to protecting free speech and product stability on the platform than Matze. These statements, constituting most of Bongino's rant, are plainly unverifiable opinions…. "Statements of opinion are those whose truth or falsity cannot be established by the judicial process." …

However, Matze draws our attention to several of Bongino's statements which Matze asserts accuse him of impropriety and misconduct rather than just comparing their respective levels of free speech advocacy, including that some "really bad" and "terrible" decisions were made, with the implication it is Matze who made them, costing Parler its relationships with Amazon and others and its product stability. With Bongino's role as an insider at Parler, Matze asserts that there is an implication of knowledge of underlying facts, rather than opinion.

But a statement about whether a former employee made decisions that were bad or terrible also constitutes an unverifiable opinion. Courts that have considered similar vague statements [e.g., calling people's actions "crappy or half-assed" or a "common and sleazy tactic"] have concluded they were non-verifiable and therefore held them to be opinions as a matter of law.

The post Dan Bongino Wins Defamation Case Brought by Parler Ex-CEO appeared first on Reason.com.

From Friday's decision of the Nebraska Supreme Court in Munsell v. Munsell (opinion by Justice Derek Vaughn):

Jacob and Libby married in 2010 and had two children, one born in 2016 and the second born in 2018. In February 2024, Libby filed a complaint seeking dissolution of the marriage.

The parties stipulated to the division of their property, and they agreed to share joint physical custody of the children under a rotating parenting schedule that gave each parent equal time. Trial was had on the contested issues of legal custody, the children's involvement in the church attended by Jacob (church), and the children's attendance at the church camp during Jacob's parenting time. Jacob appeals the district court's decision on legal custody and church camp attendance.

The trial court concluded that the parents were in sufficient conflict that joint legal custody wasn't feasible, and therefore awarded legal custody to Libby, and the Nebraska Supreme Court upheld this. But the trial court also concluded that Jacob couldn't have the children attend the church camp even during his own parenting time, and on this the state supreme court disagreed:

Jacob and Libby were raised in the same religion as that of the church Jacob currently attends. Jacob testified the church follows the tenet that women should be "subservient" to men and that the church should be led by men. During their marriage, the parties and the children attended the church. However, Libby testified that she "left the church" about 5 months before filing for divorce, no longer agreed with some of the church's teachings, and did not like that there were "no women leaders and wom[e]n were silenced and subjugated." She also testified that she did not like the "culture of fear and shame that the church brings on, fear of hell and fear of punishment." After the parties separated, the children continued to attend the church with Jacob during his parenting time, and Libby initially supported this practice. At trial, however, the parties disagreed on whether the children should continue to attend the church….

[As to the church camp, the camp] director testified campers rotate through four classes that are each 30 to 45 minutes long and consist of a Bible class, as well as "crafts[,] activities[,] and nature" with five classes in a full weeklong session. The Bible class usually follows a vacation Bible school curriculum with a rotating religious theme. There is a main Bible verse for the church camp, and Bible class time is spent learning the verse, usually doing a coloring sheet, and completing a quick Bible "devote." Campers do not have to be affiliated with any religious organization to attend the church camp. The primary focus is on having fun, making friends, and being independent.

Jacob's parents live on the church camp's property as caretakers. Jacob testified the church camp was a "huge part" of his life, he had been a camp counselor, and he was currently serving on the church camp's board of directors. He testified the church camp was a place he went to "figure out what [he] believed" and "who [he] wanted to be" away from his parents and is something he wants his children to experience. He testified he met Libby at the church camp, and he admitted that after they began dating, they were sexually intimate on the church camp's property in violation of the church camp rules. But there was no evidence that the church camp's staff or directors were aware of, or sanctioned, such activity. Jacob also testified that these relations took place only while Libby attended as a staff member and not during a church camp session….

Libby testified she enjoyed attending the church camp as a child but now believes the church camp, like the church, teaches lack of self-worth, and she does not want the children to attend the church camp, even during Jacob's parenting time. She did not object, however, to the children attending a nonchurch camp….

Libby, as the sole legal custodian, has the authority and responsibility under state law to make fundamental decisions regarding the children's education and welfare, including their religious education and their extracurricular activities. But … absent a clear showing of substantial harm to the child, the noncustodial parent retains his or her fundamental right to direct the child's religious upbringing during his or her parenting time….

[T]he [trial] court expressly found that "there is little or no evidence that [Jacob's] religious practice presents any threat to the children's well-being." The court thus concluded that "[t]he record does not support any restriction on [Jacob's] ability to discuss his beliefs and involve the children in church activities during his parenting time." No one has appealed this finding, and our de novo review persuades us that it is amply supported by the record.

But this leaves the question of whether the trial court erred by allowing Libby the unilateral authority to decide whether the children could attend the church camp during Jacob's parenting time. The trial court decided this issue by analyzing whether the church camp was properly characterized as a religious practice or instead was an "extracurricular activity" that the parent with legal custody had authority to determine. On this record, we do not think such an analysis was necessary.

Here, there was no dispute that the church camp was supported by the same religious organization that encompassed Jacob's church and included religious education; indeed, Libby's primary objection to the children's attendance was the church camp's religious affiliation. She had no objection to the children attending a nonchurch camp, so the basis for her objection was not the extracurricular activities in which they would participate at the church camp, but the religious activities in which they would participate.

In other words, although the church camp included a mix of religious activities and extracurricular activities, it was not necessary to determine which activity predominated the daily camp schedule, because the evidence showed that both parties considered the church camp to be a "church activity." Neither do we see evidence that allowing the children to attend the church camp would expose the children to harm. The trial court made an express factual finding that the record did not support placing any restriction on Jacob's ability to involve the children in "church activities during his parenting time," and our review of the record confirms the same. For similar reasons, in our de novo review, we see an absence of evidence that allowing the children to attend the church camp would pose "an immediate and substantial threat to a child's temporal well-being."

Accordingly, we see no basis to restrict Jacob's ability to enroll the children in the church camp during his parenting time. We therefore modify the decree to remove the provision that allowed Libby to determine whether Jacob could enroll the children in the church camp during his parenting time….

The post Father Free to Send Children to Church Camp During His Parenting Time, Even When Mother Objects to Church's Views on Women appeared first on Reason.com.

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On May 20, 2-3 PM eastern time, the Cato Institute will host an online event on "Trump v. Barbara: Birthright Citizenship at the Supreme Court." The event is free and open to the public. Registration information available here. The participants will be prominent immigration law scholar Prof. Gabriel Chin (UC Irvine), leading legal historian Paul Finkelman (Univ. of Toledo), and myself. Dan Greenberg of the Cato Institute will moderate.

The Supreme Court held oral argument in the case on April 1, and I put up a post about some of the issues raised here. In a recent article in Lawfare, I explained why all the Trump Administration's rationales for denying birthright citizenship to children of undocumented immigrants would, if applied consistently, also have had the effect of denying it to large numbers of freed slaves and their children, thereby undermining the central objective of the Citizenship Clause of the Fourteenth Amendment. This alone dooms Trump's position under the original meaning of the Clause, even aside from all the other flaws in his arguments.

The post Upcoming Cato Institute Event on "Trump v. Barbara: Birthright Citizenship at the Supreme Court" appeared first on Reason.com.