From today's decision by Judge Ann Aiken (D. Ore.) in Owen v. Askew, the allegations from plaintiff's complaint:

Plaintiff Kursten Owen is an Oregon resident and is the owner of Elegance & Geekery, LLC, an Oregon business. Elegance & Geekery sells accessories and had gross receipts of $190,310 in 2024. Relevant to the present case, Plaintiff makes and sells hair accessories through Elegance & Geekery and has done so for eight years.

Defendant Breana Askew, dba Breromi, is a resident of Georgia. Like Plaintiff, Ms. Askew makes and sells hair accessories. Ms. Askew also has a large social media following.

Defendant Kiandria Demone Boyce is a civil rights activist who resides in Georgia. Ms. Boyce also has a large social media following, which Plaintiff alleges Ms. Boyce "weaponizes" in order to engage in "cyberbullying." Ms. Boyce is alleged to have "previously engaged in online campaigns wherein she leverages her online following in order to orchestrate the filing of mass public complaints to third party sites such as GiveSendGo/Square in order to compel the companies to act in a certain way." Unlike Ms. Askew or Plaintiff, Ms. Boyce is not alleged to be involved in the hair accessory business.

On July 14, 2025, Ms. Askew saw a promotional video for Plaintiff's hair clips and came to believe that Plaintiff's hair clip designs were copied from those produced by Ms. Askew. Plaintiff alleges that the design and construction of her hair clips are materially different from those made and sold by Ms. Askew. Plaintiff asserts that she developed this design independently and from scratch.

Beginning on the evening of July 14, 2025, Ms. Askew began posting comments on Plaintiff's business's social media pages accusing Plaintiff of infringing on Ms. Askew's intellectual property. That same evening, Ms. Askew sent Plaintiff a "Cease & Desist" email accusing Plaintiff of infringing on Ms. Askew's intellectual property rights and threatening legal action. In addition to maintaining that her designs were independently developed and materially different from those sold by Ms. Askew, Plaintiff alleges that Ms. Askew lacks any enforceable intellectual property right over her products.

Less than an hour after sending the Cease & Desist email, Ms. Askew posted on social media accusing Plaintiff of stealing her designs and calling on her followers to report Plaintiff's business for selling "rip offs."

On the morning of July 15, 2025, Ms. Boyce contacted Ms. Askew via social media and requested Plaintiff's business account information, which Ms. Askew gave her. On the same day, Ms. Boyce commented that Plaintiff "has yet to meet a bully honestly. I've been busy today."

Also on July 15, 2025, Plaintiff publicly responded to Ms. Askew's accusations and denied that she had infringed on Ms. Askew's intellectual property rights. Shortly afterwards, Ms. Boyce posted a response on social media accusing Plaintiff of stealing Ms. Askew's designs, which garnered significant attention. Ms. Boyce made additional social media posts accusing Plaintiff of theft and instructing her followers to report Plaintiff's business and to post negative reviews for the business on Facebook….

Both Ms. Askew and Ms. Boyce posted links and detailed instructions for their social media followers to contact Shopify, an online commerce platform utilized by Plaintiff's business, and to report that Plaintiff's business was illegally selling counterfeit products….

On July 17, 2025, Ms. Boyce posted a video directed at Plaintiff in which she said "If you value that business and that website, I would think twice before you continue to play the game you're playing … the real bully has entered the chat. I promise you, you haven't seen anything yet … I'm the one who made the viral post about it."

Ms. Boyce continued "Bre [Ms. Askew] didn't send a hate mob after you. I did … this was orchestrated because at this point, you fucking know that this was not an original idea. You know that it was stolen from a black creator, and you are still doing backflips to make excuses for that. So I'm going to say this and I promise you, I'm not going to say this again. Keep antagonizing this black woman. Keep going back and forth with her. Keep gaslighting her and painting her out to be the aggressor. When you are the one who stole her design. Keep doing it. Just go ahead and keep engaging it. And I promise you, going to court with Bre [Ms. Askew] is going to be the least of your worries. Google me, Google Kiandria Demone. And then keep on antagonizing this black woman. And you're going to find out exactly who the fuck I am." …

Plaintiff … alleges that "[a]ltogether, the defamatory statements Defendants conspired to spread were … heard by an audience of well over 14 million individuals." Defendants are alleged to have "actively tagged and directed people towards Plaintiff, and even went so far as displaying Plaintiff's full name, image, and State/City location in Defendant Boyce's case."

As a result of this campaign, Plaintiff alleges that she has suffered considerable personal harassment. The reporting of Plaintiff's business to its online platforms is alleged to have resulted in lost profits, lost sales, lost future sales, and loss of customer goodwill. Plaintiff has had to decrease activity on her online business platform and has lost established business relationships with other online creators. Plaintiff alleges that this has damaged her personal and business reputation, as well as causing her emotional harm….

Plaintiff sued for defamation and related torts, as well as intentional infliction of emotional distress, and the court allowed the claims to go forward:

Here, Ms. Boyce presents challenges to both the legal and factual sufficiency of the claim. With respect to the factual challenges, Ms. Boyce claims there is no evidence of true threats or harassment; that Plaintiff failed to mitigate the harm; that third parties were the true cause of the harm; that Plaintiff has mischaracterized the evidence; that Ms. Boyce's actions were directed at protecting consumers and encouraging transparency in online commerce; and that Ms. Boyce's statements were not literal threats but "rhetorical hyperbole and activist expression." …

[U]nder the federal rules, a factual challenge is premature before discovery has been undertaken. Here, no discovery has taken place and it would be improper to allow a challenge to the factual sufficiency of the claims to proceed at the pleading stage. The Court will therefore DENY the motion to the extent that it challenges the factual sufficiency of the claims with leave to refile after the close of discovery.

Ms. Boyce also appears, at least in part, to challenge the legal sufficiency of the claims….

Ms. Boyce argues that Plaintiff's "selective targeting" of her "undermines credibility" and "reveals a retaliatory motive." Questions of credibility are generally reserved for the finder of fact (i.e., the jury or, in the case of a bench trial, the Court) and cannot sustain a challenge to the pleadings. Ms. Boyce argues that "[s]elective litigation aimed at retaliation contravenes constitutional principles," for which she cites BE & K Const. Co. v. NLRB (2002). The cited authority concerns the National Labor Relations Board's imposition of liability on an employer for filing a losing retaliatory lawsuit. BE & K Construction has no applicability to the present case. Nor do Ms. Boyce's arguments concerning Plaintiff's motive in filing the case suffice to undermine Plaintiff's claims. See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc. (1993) (Stevens, J., concurring in judgment) ("We may presume that every litigant intends to harm his adversary.").

Ms. Boyce also argues that her statements were prefaced with "my guess" and "I think" and were therefore non-actionable expressions of opinion. However, the [Complaint] alleges numerous defamatory statements by Ms. Boyce that were not so qualified.

Ms. Boyce also argues that she cannot be held liable for the actions of third parties, citing 47 U.S.C. § 230(c)(1). Leaving aside whether § 230 applies to Ms. Boyce, the [Complaint] seeks to hold Ms. Boyce liable for her own alleged conduct, … rather than for the acts of third parties….

The court also concluded that the case can stay in Oregon federal court, because (to oversimplify slightly) defendants had purposefully directed their actions at Oregon and therefore were subject to the court's jurisdiction:

As alleged [in the Complaint], Defendants repeatedly accused Plaintiff of stealing Ms. Askew's intellectual property and selling counterfeit goods. They directed these accusations at Plaintiff, tagging Plaintiff's social media accounts, and published them to their large social media followings, which caused Defendants' statements to circulate to millions of people, both in Oregon and elsewhere. Notably, Defendants also directed their accusations at Plaintiff's brother, who is also located in Oregon. These communications had an "Oregon focus" because they concerned Plaintiff's activities in Oregon….

"[W]here acts are performed for the very purpose of having their consequences felt in the forum state, the forum will have personal jurisdiction over the actor." Here, the Court concludes that Plaintiff has made a sufficient prima facie showing that Defendants expressly aimed their conduct, both the defamatory statements and the efforts to interfere with Plaintiff's ongoing business relationships, at Oregon….

This is not … a case where Defendants are alleged to have passively operated a website or engaged in fleeting online contact with residents of the forum. As discussed above, the [Complaint] alleges a sustained and targeted campaign for the purpose of causing Plaintiff to suffer harm in Oregon. Defendants also assert that they cannot be liable for the acts of third parties, but the [Complaint] alleges Defendants' own conduct as the basis for its claims. The Court concludes that the purposeful direction prong has been satisfied.

The post Lawsuit Over Social Media Allegations of Hair Accessory Design Theft (with a Race Dimension) Can Go Forward appeared first on Reason.com.

From today's sanctions order in Copycat Legal PLLC v. Peralo, by Judge David Leibowitz (S.D. Fla.), entered on the court's own initiative (the defendant is described in the Complaint as "a digital content creator who primarily focuses on producing videos in short form for his YouTube, TikTok, SnapChat, and Instagram viewers" and who claims to have "over 2 million followers across social media, 2.5 billion views and … over 4 billion impressions in polls/quizzes"):

Pro se Defendant Charles A. Peralo ("Defendant") has repeatedly failed to obey the Court's orders. Accordingly, the Court will impose a monetary sanction on him.

Rule 16(f) of the Federal Rules of Civil Procedure states that a court may, sua sponte, "issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney … fails to obey a scheduling or other pretrial order." Sanctions under Rule 16 are "designed to punish lawyers and parties for conduct which unreasonably delays or otherwise interferes with the expeditious management of trial preparation." …

Defendant has repeatedly and brazenly ignored this Court's orders. On June 11, 2026, the Court denied Defendant's Motion to Dismiss, noting it bore indicia of AI-generated material, and ordered Defendant to file an answer to Plaintiffs' first amended complaint no later than June 25. Defendant blew through that deadline.

On July 2, Plaintiffs informed the Court that Defendant refused to participate in drafting a joint scheduling report per the Court's June 12 Order, "[d]espite at least thirteen (13) e-mail follow-ups." Plaintiffs included screenshots of Defendant's responses to those emails, where Defendant said (among other things), "[y]ou are a fat [f**cking] loser," "you are my dancing monkey," and "you're a [f**cking] moron." [All expurgations are from the court opinion itself. -EV]

{In their Opposition to the Motion to Dismiss, Plaintiffs represented that Defendant sent them the following email: "Sent you and the court the motion to dismiss your BS case and beat you with ChatGPT. When I send a bag of dog [s**t] to your office next week, should it be made out to Scamming Dan and Friends or Scamming Dan and Company?"}

The Court ordered the parties to meet and confer and file a joint scheduling report by July 10 and sua sponte granted Defendant an extension of his deadline to respond to the complaint until July 16. On July 10—the date the joint scheduling report was due—Plaintiffs informed the Court that Defendant failed to provide input and stated he was "in Las Vegas for a conference." Finally, on July 13, the Court ordered Defendant to show cause in writing why he should not be sanctioned for failure to meaningfully participate in this lawsuit no later than July 24 and warned him that failure to comply would result in sanctions without further notice. Defendant blew through this deadline too, and still has yet to respond to the complaint.

The Court harbors no doubt that Defendant's conduct amounts to bad faith. Not only have Plaintiffs served a copy of every relevant order on Defendant, on July 20, 2026, in response to a proposed order that Plaintiffs emailed to the Court, Defendant wrote (copying the Court):

I'll look over this BS when I have less important things to do. Meaning well… Anything.

But just a quick note. Save yourself some dignity and remove the part of me calling that idiot a [c**t].

You can play that recording over. She left the call and when I thought she was gone I went "What a [c**t]". I didn't directly call her that and for your own good, the judge/jury would see you guys as liars over it.

This conduct (ignoring court orders and insulting counsel) is unacceptable and will not be tolerated. Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant shall pay one thousand dollars ($1,000.00) into the Court's sanction fund no later than August 14, 2026, and shall file a notice certifying he has done so. The Court further warns Defendant that engaging in any similar conduct going forward will result in more severe sanctions….

For more on the underlying dispute (a libel case stemming from a copyright infringement claim), see the Complaint and the Motion to Dismiss.

The post Not What Judges Want to See from Litigants appeared first on Reason.com.

This time last year, I felt a sense of great accomplishment. The Third Edition of the Heritage Guide to the Constitution had been sent to the printers, with an expected delivery date of September 17. Even though the book was complete, my work was far from over. During the summer of 2025, I was planning the launch event for Constitution Day at Heritage, as well as a massive book signing at the Federalist Society's National Lawyers Convention. Moreover, I was producing the audio version of the book, which was to be released in a serial podcast format. Most of our authors had already come into the Heritage Studios to record their essays. Things were looking up by the day. My work at Heritage had become one of my most fulfilling and rewarding professional experiences. Then it all came crashing down.

What a difference a year makes. On December 21, 2025, I published my resignation letter from Heritage. Several of my colleagues were fired from Heritage. Others resigned noisily, but most resigned quietly. Now, the dust appears to have settled. With few exceptions, people who no longer fit at the new Heritage are no longer there. Kevin Roberts survived the scandal and is likely to endure for some time. Indeed, he has recruited new supportive Board members and appointed subordinates who support his vision. The new hires are all mission aligned. The old Heritage ceased to exist long before Tucker Carlson's infamous podcast, but now "Heritage 2.0", as it is called, is firmly established.

The New York Times Magazine has a deeply reported story, titled What the Crackup of the Heritage Foundation Says About the Post-Trump Right. The article is consistent with what I've heard over the past year, and sheds light on some items that had been less-than-clear.

Here is an excerpt about the wave of departures (both voluntary and involuntary) from Heritage:

Many employees and experts at Heritage appeared to disagree with the premise that such people belonged in their coalition, and especially that anyone was trying to set them right. Longtime Heritage employees told me that the people they usually collaborated with in congressional offices, circuit courts, foreign embassies and other institutions no longer wanted to be publicly associated with Heritage and what they perceived as its fidelity to Carlson. In a resignation letter later made public, Josh Blackman, a legal scholar who had for years been working on a new edition of "The Heritage Guide to the Constitution," said the volume's contributors pulled out of an event promoting the book and refused to sign copies. Judges who had spoken at the foundation, Blackman wrote, said "they would no longer affiliate with Heritage."

In the wake of Roberts's video, dozens of staff members departed. Eighteen of them ended up at former Vice President Mike Pence's new think tank, Advancing American Freedom, which Pence founded shortly after leaving office in 2021, as a home for more traditional conservatives. (It has attracted money and experts, if perhaps not yet a proportionate boost in cachet.)

Roberts seemed unfazed by the departures. "There are a handful, not many remaining, now former colleagues who wanted to direct Heritage's mission, its implementation of that mission, in sort of a 1980s-style way," he told me. "So, I guess it's appropriate they went to Pence's think tank." Certain scholars, particularly in the legal and economics departments, had been "used to getting their own way," he went on. "And it's good that they're gone."

I think my colleagues who left Heritage would agree that it is good they are gone.

Update: John Malcolm, formerly of Heritage and now of Advancing American Freedom, posted on X:

For the record, I didn't speak to this reporter, but her article is interesting & largely accurate. In it, Kevin Roberts says (referring to me & my colleagues who left Heritage to join Advancing American Freedom) that he's glad we're gone. I couldn't agree more. Although there are some great people who are still there, we are glad we're gone too.

The post The <i>New York Times</i> On Heritage Foundation 2.0 appeared first on Reason.com.

I have written about bilateral judicial reform: how can Congress and the Supreme Court work together to reform the institution? In a new series for SCOTUSblog, I take a different approach: unilateral SCOTUS reform. What can the Supreme Court, acting alone, do better? These proposals are, in large part, a series of thought experiments. Some of them are admittedly off-the-wall and are unlikely to be adopted. Others may seem such common sense that they can be readily adopted. But all reconsider the status quo and what procedures are worth keeping and which should be changed.

My first installment calls on the Court to eliminate the summer recess. Here is a snippet:

In my article Bilateral Judicial Reform, I proposed that Congress should mandate that the court hear arguments year-round. Specifically, Congress would require that the court schedule at least one public sitting for oral argument and one conference per calendar month. But this reform could also come from the court, or even from the chief justice acting alone. Although it is something of a black box how the court determines its schedule, every year the court releases a calendar indicating when there are argument days and when the court will hold private conferences. This process could slowly adjust to hosting more meetings.

The court could ease into change by scheduling a one day virtual meeting in July, in August, and in September. Virtual oral argument and conferences were held during the pandemic period. They were not ideal but were used effectively when the justices could not assemble in person. And the circuit courts of appeals routinely hold online arguments. Virtual sessions work well for my plan because the justices tend to scatter from July through September. Critically, the justices wouldn't have to alter their summer travel plans. Whatever tensions and conflicts that arise during the term can still be mellowed out as the justices get out of Dodge. . . .

The more fundamental change would require breaking the mold that all opinions must be decided by the end of June. This practice makes sense from a logistical perspective: Any cases argued during a particular term should be decided during that term. But in the long run, this concern is myopic. Supreme Court opinions establish rules for "the ages." Why should a landmark opinion argued in late April be rushed out by June? No one does their best work under time pressure. Rushed compromises can create unintended problems for generations unknown. An opinion should be released when it is ready and not accelerated to meet some artificial vacation deadline. This utilitarian calculus may offer the strongest justification to eliminate the summer recess: the justices will produce better opinions without the Fourth of July looming.

My next installment will call on the Justices to hold regular press conferences.

The post Eliminate the Summer Recess appeared first on Reason.com.

— Byron, Don Juan

From Stewart v. Pemiscot County, decided yesterday by Judge Stephen Clark (E.D. Mo.):

This case proves the wisdom of Lord Byron, who is credited with the maxim truth is stranger than fiction.

Stewart pleaded guilty to statutory rape. Several years later, his defense attorney—now a judge—officiated Stewart's marriage to his victim. The wife of the attorney-turned-judge later successfully moved to vacate Stewart's guilty plea, arguing that it "resulted in a manifest injustice." Stewart now sues Pemiscot County and various County officials under 42 U.S.C. § 1983 alleging a wide-ranging conspiracy to cover up the terms of his plea agreement….

In October 2009, Stewart pleaded guilty to first-degree statutory rape …. Judge William Carter—then a private attorney—negotiated Stewart's plea agreement…. The written judgment imposed four years of a suspended sentence and four years' probation, but according to Stewart "no lifetime GPS supervision appeared," in the judgment.

Three months later, Stewart and Probation Officer Libby Banks signed a Global Positioning Agreement that mandated compliance with its terms until 2058. Stewart completed his term of probation in October 2013 without a violation. A year later, Stewart's then-attorney … filed a motion to discharge Stewart's lifetime supervision….

{[According to statements in a later proceedings,] at the time of the offense, Stewart was 17 years old and the victim was 13 years old. Seven years after the offense, Stewart and the victim married; Judge Carter served as the officiant. Stewart and his victim, now wife, had six children together.}

In 2022, Stewart was charged with violating Mo. Rev. Stat. § 575.206, "Violating a Condition [o]f Lifetime Supervision," a class D felony. Judge Carter—Stewart's former plea counsel—presided over his arraignment and the next eight months of the case until February 2023 when it was transferred (without any explanation reflected in the case record) to Judge Reeves.

Stewart then claims that his public defender called him and informed him that "Judge Carter wants [him] to call his wife Kimberly, [because] she may be able to assist [him] in the matter along with [the public defender]." Stewart allegedly called Kimberly Carter the same day, and Stewart claims that she said that "Bill (William Carter) had already gotten her up to speed" and she would file a motion on his behalf. Kimberly Carter allegedly charged Stewart $750 for her representation. In April 2023, Kimberly Carter—Judge Carter's wife—entered an appearance on Stewart's behalf and filed a motion to withdraw his guilty plea.

In her motion, Kimberly Carter explained that Stewart "was assured by the understanding of plea counsel," her husband, Judge Carter, "and the prosecuting attorney, and based his decision to enter the plea on the fact [that] should he successfully complete supervision, the conviction would be removed from his record without further consequence."

Though Stewart "continued to comply with the registration requirements of his plea, a consequence of which he was aware at the time he entered his plea," Kimberly Carter stated that he "has refused to comply with the added condition of wearing a Global Positioning System unit." Because of his refusal to comply, Stewart was charged with … "Violating a Condition of Lifetime Supervision, a Class D Felony."

Kimberly Carter argued that Stewart's guilty plea "resulted in a manifest injustice because it violated his rights to due process and to the effective assistance of counsel" under the United States Constitution and the Missouri Constitution. And she stated that "[b]ut for plea counsel's and prosecuting attorney's explanations of the consequences of his guilty plea, rendering his guilty plea unknowing and involuntary, [Stewart] would not have entered a plea of guilty and would have insisted on his constitutional right to a jury trial."

In late July 2023, Judge Keith Currie granted Stewart's motion to withdraw his guilty plea. Judge Currie withdrew Stewart's guilty plea, vacated his conviction, removed "any requirement for registration and/or supervision as a sexual offender that may have been imposed based upon said conviction," and ordered Stewart's name removed from the Missouri Sex Offender Registry.

Stewart also hired an attorney to pursue a malpractice claim against Judge Carter and contacted Kimberley Carter to "discuss a possible settlement for malpractice out of court."

Two months later, Defendant Detective Brett Hopkins filed a probable cause statement stating that Stewart sold a single cabin—that he allegedly did not own—to two separate individuals. After Stewart failed to appear for a hearing, Judge Carter issued a warrant for his arrest. Several months later, on March 20, 2024, Deputy Chad Nixon returned the warrant, i.e., arrested Stewart and brought him before the court.

A day before Deputy Nixon returned the warrant, Hopkins filed a second probable statement. Hopkins alleged that while on patrol he encountered a parked vehicle that was operated by Stewart. To carry out the then-outstanding felony warrant, Hopkins circled the block and got behind the vehicle. At that point, Stewart allegedly fled at a "high rate of speed." Eventually, Stewart came to a stop and fled on foot. Stewart's wife was in the vehicle and confirmed that Stewart operated the vehicle.

Judge Carter presided over Stewart's arraignment in each case, and Stewart's wife posted bond for him in both pending cases. Stewart states, without any factual support, that Pemiscot County officials, Defendants Horton, Hazel, and Hopkins, charged him with these "retaliation felon[ies]" based on "fabricated probable cause and withheld Brady material." …

The court dismissed plaintiff's various claims on various procedural grounds, which you can read about in the full (and long) opinion; but here's an excerpt from one part:

Finally, Stewart seeks a permanent injunction to dismiss "all pending [state] felony charges and expunge[ ] records" …. But Courts may not enjoin pending state criminal proceedings absent "extraordinary circumstances," such as a "bad-faith prosecution or when a criminal statute is 'flagrantly and patently unconstitutional on its face.'"

Stewart's complaint fails to plausibly plead that his subsequent felony prosecutions were conducted in bad faith; they appear to result solely from his own alleged conduct. Stewart didn't wear his Global Positioning Unit. He allegedly sold a single cabin—that he did not own—to two separate individuals. And he allegedly fled from an officer at a "high rate of speed." Because Stewart failed to plausibly plead that "extraordinary circumstances" exist, the Court declines to enjoin two separate pending state criminal proceedings.

A. M. Spradling III (Spradling & Spradling) and Kelli Reichert and Thomas McIntyre Finn (Office the Missouri AG) represent defendants.

The post Heartwarming? Appalling? On Whose Part? Whatever It Is, It's Strange Indeed appeared first on Reason.com.

A short excerpt from the long opinion in Pruitt v. Grosse Pointe Public School Sys., decided Friday by Judge Robert White (E.D. Mich.):

Plaintiff Gary Shane Pruitt, a parent, attempted to raise concerns with officials from the Grosse Point Public School System (the District) about the educational environment at the public middle school his child attends. Pruitt objected to the display of rainbow pride flags in classrooms. The District officials could have listened to Pruitt's concerns and then defended a teacher's decision to display the flag. Surely, the teacher only aimed to create a welcoming environment for all her students. Instead, Pruitt's concerns were dismissed.

So Pruitt visited the school to record a video of the flag. He came with his son, after school hours, and only entered the school after receiving permission from a school employee. And despite the fact multiple school officials observed him in the school, he was never asked to leave. Weeks passed without comment or action from school officials.

Then Pruitt took his concern to a public forum—posting a video to social media showing the rainbow pride flag on display. The video included Pruitt's voiceover calling the display of the rainbow flag political and divisive, and he called on parents to "speak out" about the "radical programing" from "groomer teachers[.]" In response, the school principal initially sent an e-mail to parents, affirming the non-threatening nature of the video and identifying its publication as the "political" speech of a "parent[.]"

But public criticism followed. The District, citing complaints from staff and community members for the "disruption to the educational environment[,]" issued Pruitt a no-trespass order. A picture of Pruitt's face was posted at the entry to the school and the district threatened criminal prosecution if Pruitt violated the order.

Moreover, the District informed Pruitt in writing that his total ban on attendance at extracurricular activities could only be revisited "at the sole discretion" of the District. Eighteen months passed without so much as a violation from Pruitt, but his requests to lift the order were denied. Finding no resolution, he sued.

At bottom, Pruitt's video criticizing public-school officials constitutes speech protected by the First Amendment to the United States Constitution. The way public schools educate children is a core matter of public concern and debate. The District retaliated against Pruitt for his speech with their after-the-fact imposition of a no-trespass order and threat of criminal prosecution. The timing of the District's written correspondence in this case, as well as the content of the order itself, confirms as much.

The court therefore issued a preliminary injunction ordering "that Defendants are enjoined from enforcing the no-trespass order, displaying Pruitt's picture and the related information on school property, or taking any additional retaliatory action in response to Pruitt's protected speech."

David A. Kallman (Kallman Legal Group, PLLC) represents Pruitt.

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Over the past decade or so, I have written quite a bit about Supreme Court leaks. For a time, Joan Biskupic had the inside scoop. Indeed, Barrett relayed in her books that she had private conversations with the Justices. I've heard that Chief Justice Roberts, in particular, felt burned that Biskupic published information that was supposed to be off-the-record. So it goes. But after Justice Ginsburg's death, Biskupic's information largely dried up. Of course, Josh Gerstein at Politico got the Dobbs leak, but that was a one-off. Gerstein has not published any more inside information. More recently, Jodi Kantor of the New York Times has published a regular stream of information from the Court.

No matter how you slice it, the problem of leaks continues.

Justices Kagan and Barrett addressed the issue of leaks at some length during their congressional testimony (which I am just now wrapping up).

Kagan told the House Committee:

We can't engage do our business, we can't engage in confidential communication, which is the best way to operate is to be fully open with one's colleagues about one's views and if you think that those views are going to appear on the front page of the newspaper, you pull back, you don't have the kinds of conversations that I think the court really depends on to do great work. so this is something that has frustrated all of us and we are continuing to make efforts to resolve.

Kagan offered similar remarks to the Senate Committee:

The leaks "dramatically change the way we do business internally or at least has the potential to do so. The way we relate to each other depends so much on honest communication among the nine of us. And if the nine of us do not have trust in one another and don't have trust in one another and all the people who work for us, then those kinds of honest conversations that we need to do our business are not going to take place. They are at least going to be frustrated, so I think it is a problem that has frustrated every single one of the justices because of the security issues, but because it is just not the way a court should operate and not the way a court can operate if it wants to have the kind of deliberations that are the backbone of what we do."

Justice Barrett volunteered some information about the Court's new NDAs.

We are doing our best. we have instituted protocols to keep better track of who has access to document, who has touched documents when printed. We have always required employees to sign a confidentially agreement but recently we begin requiring employees to sign a nondisclosure agreement, which we do have carveouts for whistleblowers and that sort of thing, and those carveouts go beyond what federal statutes require. but we are hoping that driving the need for confidentiality home with these NDAs will just be an additional check on employees who are sharing information inappropriately and often illegally.

The Supreme Court has never publicly acknowledged that clerks are required to sign NDAs. We learned of this news from, drumroll please, a leak to the New York Times. Indeed, the Court offered no comment to the Times:

A spokeswoman for the court declined to comment about the nondisclosure agreements. She also did not respond to a question about whether the justices have been asked to sign the contracts.

The people who described the agreements spoke on the condition of anonymity because they were not authorized to speak publicly about court matters.

Judge Barrett has now confirmed the leak, perhaps without even realizing it. I wonder if anyone at the Court caught this.

Over the years, I speculated that Justice Kagan was at least adjacent to some Supreme Court leaks. I take Kagan's congressional testimony to be truthful, so I'll admit I was wrong. And I'll take Kagan as speaking truthfully that none of her other eight colleagues would leak information. If that's the case, then how can the leaks be explained? Are there simply rogue law clerks who are acting ultra vires, without the knowledge of their boss? Or maybe there is something short of tacit approval?

In any event, I appreciate that Kagan and Barrett have now locked in about leaks. Any clerk from their chambers would now be deluded to think their boss quietly supports a leak.

The post Justices Kagan and Barrett on the SCOTUS Leaks appeared first on Reason.com.

Today, the UnPopulist published my article "Court Packing is a Dangerous Gambit Best Avoided." It responds to Andy Craig's earlier article putting forward a novel plan that combines court-packing with a constitutional amendment imposing term limits on Supreme Court justices. While Craig's proposal is better and more creative than traditional court-packing plans, I argue it is still a cure more dangerous than the disease it seeks to remedy.

Here is an excerpt that briefly summarizes the rest:

Court-packing has once again become a major focus of political contention, with many on the political left advocating it in response to what they believe are badly flawed and illegitimate decisions by the Supreme Court. In a recent article for The UnPopulist, Andy Craig provides reluctant support for court-packing, but with a twist he argues will minimize the danger: combining court-packing with a constitutional amendment imposing term limits on Supreme Court justices that would—if enacted—reverse the packing. The term-limit system would give every president two appointments per term, thereby potentially producing more ideological balance on the bench.

Craig's proposal is clever and a cut above more conventional defenses of court-packing. But I remain unpersuaded. His argument falls short in multiple ways. He overrates the negative aspects of the current Supreme Court majority and underrates their positive contributions, including on the very issue of combating incipient authoritarianism, the main focus of his concerns. He also overestimates the supposed inevitability of future court-packing and the feasibility of his compromise plan. Finally, there are good alternative fixes for many of the problems that (rightly) concern Craig.

I previously criticized court-packing in a Lawfare article published last month, where I explained (among other things) why the Supreme Court's recent decision in Louisiana v. Callais doesn't justify packing. In another recent piece, I assessed "non-packing" rationales for increasing the size of the Supreme Court.

The post My New UnPopulist Article on Why "Court-Packing is a Dangerous Gambit Best Avoided" appeared first on Reason.com.

Two weeks ago, Justices Kagan and Barrett admirably defended the Supreme Court before the House and Senate. Last week, in remarks before the Ninth Circuit Judicial Conference, Justice Kagan offered a sophisticated analysis to explain what it means to have a conservative Supreme Court:

One of the Supreme Court's three liberal justices defended her conservative colleagues on Thursday, insisting the court has not been too deferential to President Trump.

"I think that is a bad rap," Justice Elena Kagan said during an appearance in Washington State, at an annual gathering of judges and lawyers who work in the judiciary's Ninth Circuit.

"Is this court very conservative?" she continued. "Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes."

"But," she added, "is this court kind of a puppet for the current administration? I think definitely not."

Justice Kagan has long understood what the "playbook of the conservative legal movement" was. As Dean of Harvard Law School, Kagan welcomed FedSoc students, and recruited right-of-center professors. She gets it.

The vast majority of landmark opinions the Roberts Court has decided since 2017 have nothing to do with President Trump. Look no further than how many dissents from Justices Scalia and Thomas, that long predated Trump, were vindicated. Reversed decisions include Roe v. Wade, Lemon v. Kurtzman, Board of Regents v. Bakke, Humphrey's Executor, Thornburg v. Gingles, and so on. The overruling of each of these precedents has been in the playbook for decades.

To be sure, a number of Trump specific rulings have arisen. Even then, I don't think the Court was really thinking about the 45th or 47th presidents. Trump v. Hawaii was largely a decision about executive power. Trump v. United States was a ruling "for the ages."

Yet, when a case is clearly about Trump, and not part of the broader playbook, Trump tends to lose. I think Trump v. Cook was a leading example. The Court jumped over so many prudential hurdles to get to the ruling, which Justice Barrett pointed out. Moreover, Trump v. Barbara raised an issue that had been debated since reconstruction, but Trump's views on immigration were in the background.

The Court is not a Trump Court. The Court is a conservative Court.

The post Justice Kagan Understands The Conservative Legal Movement appeared first on Reason.com.

Payton Gendron killed ten Black people in Buffalo, New York in an effort to spread racial hatred and incite violence. A grand jury subsequently indicted him on twenty-seven counts of (i) committing hate crimes resulting in death or involving an attempt to kill, in violation of 18 U.S.C. § 249(a)(1)(B); (ii) discharging a firearm to commit murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(iii), and 924(j)(1); and (iii) using and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(A)(iii).

The government sought the death penalty on the "discharging a firearm to commit murder" charges, filing a notice of intent that listed various statutory aggravating factors justifying such a punishment. That notice also included, as relevant here, three non-statutory aggravating factors: (i) the effect of Gendron's crimes on the surviving victims; (ii) Gendron's racist motive for the shooting; and (iii) Gendron's hope of provoking further violence.

The district court struck all three of these factors. It concluded first that the government could not point to the surviving victims' injuries because only the shootings resulting in death constituted capital crimes. It then found that 18 U.S.C. § 3593(f), which bars juries from "consider[ing] the race" of capital defendants or their alleged victims, prohibited the government from arguing Gendron's racist motive as an aggravating factor. Finally, it held that the First Amendment protected Gendron's statements about his goal of inciting further violence and that the incitement aggravator unconstitutionally punished Gendron's speech.

The court disagreed:

[B.] The District Court Erred in Striking the Surviving-Victims Factor.

[T]he FDPA [Federal Death Penalty Act] allows juries deciding whether to impose a death sentence to weigh any relevant aggravating factor of which the government has provided notice. And an aggravator is "surely relevant" if it helps the jury "consider all of the circumstances of the crime in deciding whether to impose the death penalty" and "direct[s] the jury to the individual circumstances of the case." … "Traditionally, sentencing judges have considered a wide variety of factors … in determining what sentence to impose on a convicted defendant." …

The surviving-victims factor is clearly relevant. By alleging that Gendron "caused serious physical and emotional injury, and severe psychological impact to individuals who survived" the attack, the factor "direct[s] the jury" to an important "individual circumstance[ ]" of Gendron's conduct: Gendron went on a mass shooting spree, killing some victims and maiming others. Indeed, death-penalty cases often involve such acts of widespread violence, and the fact that this conduct injures large numbers of survivors may often be one of the most important "circumstances of the crime."

Gendron resists this logic by arguing that section 3593(a)(2) implicitly restricts the use of potential aggravating factors related to a crime's impact on victims. That section explains that the government "may include factors concerning the effect of the offense on the victim and the victim's family." … But even if the term "victim" describes only deceased victims, Gendron's argument overlooks the rest of the statutory text and our own precedents. Section 3593(a)(2)'s plain text does not limit the use of aggravating factors; on the contrary, it simply lists factors that the notice "may include." …

[C.] The District Court Erred in Striking the Attempted-Incitement Factor.

As discussed above, the FDPA generally authorizes the government to present any relevant non-statutory aggravating factor. And "[t]he defendant's motive for committing the offense is" obviously "relevant" to determining his level of culpability…. "Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished." …

The attempted-incitement factor here highlights a particularly heinous motive. It explains that Gendron, "in preparation for and in committing the acts of violence charged in this case, attempted to incite violent action by others." That aim—to inspire copycat killers to gun down crowds of people—made Gendron's behavior even more culpable, and the government may permissibly point to that goal as a reason to impose a death sentence. Furthermore, the fact that the government plans to rely on Gendron's constitutionally protected manifesto and journal to prove that motive makes no difference, because "it is beyond cavil that '[t]he First Amendment … does not prohibit the evidentiary use of speech to … prove motive or intent.'"

Gendron resists this chain of logic by arguing that the government is seeking to punish him for his speech, not his motive. Gendron insists that his "words [are not] being proffered to prove another valid aggravator—they [are] the aggravator." … But the government is not seeking to punish Gendron because he expressed odious views. Rather, the aggravating factor here explicitly focuses on Gendron's motive in committing the crime; the factor seeks to punish Gendron more severely because he "attempted to incite violence" in "preparation for and in committing the acts of violence charged in this case."

In other words, the government is seeking the death penalty not because Gendron said terrible things or is an avowed white supremacist, but because he murdered people allegedly so as to inspire other shootings. If Gendron had committed wire fraud, the government could not seek a stiffer penalty simply because he separately happened to be a racist whose writings displayed an unrelated "abstract belief[ ]" in the need for violence. But Gendron is alleged to have carried out a mass shooting in part to inspire others to commit similar acts of violence, and that alleged motive was "tied" to—and indeed lay at the heart of—his crime….

[D.] The District Court Erred in Striking the Racist-Motive Factor.

While the government may present a wide range of aggravating factors, not everything is fair game: section 3593(f) prohibits the jury from "consider[ing] the race … of the defendant or of any victim" when determining "whether a sentence of death is justified." That bar means that the government may not present an aggravating factor that requires the jury to take account of a victim's or defendant's race. Cf. Zant v. Stephens, 462 U.S. 862, 885 (1983) (noting that death-penalty regimes may not "attach[ ] the 'aggravating' label to factors that are constitutionally impermissible," "such as … race").

A jury may, however, weigh a defendant's racist motive. As discussed above, the defendant's motive plays a starring role at sentencing. See Wisconsin v. Mitchell (1993) ("[I]t [is] permissible for the sentencing court to consider the defendant's racial animus in determining whether he should be sentenced to death."). And a jury evaluating a racist motive is simply analyzing a defendant's particularly culpable, hate-driven rationale—without any need to assess his race or that of his victims. For this reason, similar hate-crimes cases have involved aggravators virtually identical to the one that the district court struck here.

{As the government ultimately conceded at oral argument, section 3593(f) would clearly prohibit a jury from finding that animus against one racial group was more culpable than animus against another. But the aggravating factor at issue here does not encourage a jury to do that.}

Gendron advances two main arguments against this line of reasoning. First, he contends that section 3593(f) broadly outlaws all "race consideration" and that a jury evaluating a defendant's race-connected motive would necessarily have to take account of the defendant's or his victim's race. But a jury is perfectly capable of punishing a defendant for his racist motivation without considering the race of his victim, which in fact has no bearing on the defendant's culpability. If Gendron had inadvertently killed a group of non-Black victims while intending to target Black victims, his racist motive would still make him more blameworthy than a garden-variety killer. The aggravator here thus permissibly points to Gendron's "bias," "hatred," "animus," and "contempt"—all neutral terms describing internal states of mind that do not depend on Gendron's race or that of his victims….

Second, Gendron contends that even if a jury may consider a defendant's generalized racial animus, the factor here uses targeted, "facially race-based terms." To be sure, Gendron is correct that the proposed factor refers to a particular race by noting that Gendron's "bias, hatred, and contempt toward Black persons and his animus toward Black persons played a role in the killings of [the ten named victims]."

But the factor here focuses expressly on Gendron's "bias," "hatred," "contempt," and "animus," with the phrase "toward Black persons" simply giving context to those race-neutral terms. And to the extent that Gendron is concerned that the reference to a specific race might risk confusing the jury, the way for the district court to cure that problem is by issuing a limiting instruction—not striking the entire aggravator. The district court should give such an instruction to dispel any potential ambiguity by explaining to the jury that (i) neither Gendron's race nor that of his victims could play any role in its decision whether to impose the death penalty; (ii) the racist-motive factor described only Gendron's generic racist motive; and (iii) it should thus sentence Gendron because of his generalized racial hatred and the role that hatred played in the killings—not because of the particular group or individuals whom he targeted….

The First Amendment analysis strikes me as quite correct. I can't speak as confidently to the other items, since I'm not an expert on the FDPA, but the court's analysis seems right to me there as well.

Assistant U.S. Attorney Tiffany Lee argued the case on behalf of the government.

The post Second Circuit Reinstates Death Penalty Charges in Buffalo Supermarket Federal Murder Trial appeared first on Reason.com.

Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor.

Mead v. Bev. Hills Unif. School Dist. (Cal. Super. Ct. June 24, 2026)—a civil case—concluded that this covers any employees as agents, and can cover publishing material on YouTube, on the theory that "members of the public" who can view the material "would also include prospective employers." (Cal. Labor Code § 1054 makes § 1050 violations civilly actionable as well as criminally punishable.)

The fact pattern was that Mark Mead, a school district director of school safety, alleged that Carey, a journalism teacher, manipulated video of Mead to purport to show that he was choking a student. Mead was fired, and then sued the school district and Carey for defamation and related claims. The court allowed the § 1050 claim to go forward, and in the process it interpreted § 1050 in a way that would mean criminal punishment in such a situation would be allowed as well.

Sec. 1051 also provides that it's a misdemeanor to "permit an agent … or employee to commit a violation of section[] 1050." California has generally abolished criminal libel, but this statute remains in effect. And I expect it would be consistent with the First Amendment, if read (as many criminal statutes are) to implicitly require a mental state of recklessness or knowledge as to the elements, including the "misrepresentation" element.

Arkansas Code Ann. § 11-3-202 likewise provides,

In this state, every person who shall send … any false statement for the purpose of preventing another person from obtaining employment in this state or elsewhere shall, upon conviction, be adjudged guilty of a misdemeanor.

There might be similar results under some other state anti-blacklisting statutes, though I'm not sure. Of course, there's the separate question whether prosecutors would be willing to bring charges under the statute; I know of no past criminal prosecutions, though of course some such prosecutions might happen without leaving an easily findable trace.

The post Misrepresentation About Ex-Employees May Be Criminal Libel appeared first on Reason.com.

Over the past three years, the rise of anti-semitism has come as a surprise to many. It shouldn't have. The groundwork for this resurgence of the oldest hatred has been laid by elite institutions for generations. October 7, 2023, was merely the spark that rekindled the conflagration.

We all owe a debt of gratitude to Judge Roy K. Altman (SDFL) who has made it his mission to teach the world, and the legal profession in particular, about the scourge of antisemitism.

Judge Altman was kind enough to answer some of my questions, which are now published in Civitas Outlook.

Here is an exchange about the false dichotomy between anti-semitism and anti-zionism.

JB: There is a common argument: the protestors are not anti-Semitic, they are anti-Zionist. How would you explain the distinction between these concepts?

RA: There is no distinction. In the 1800s, there was Jew hatred that was all over Europe. It was very prevalent, and it was uncomfortable for much of the ruling class. They said, "The Jews are bad but we don't want violence in our society. We've moved past that, we're much more sophisticated than that."

Wilhelm Marr came up with the idea of giving Jew hatred a different name, so that it would seem more anodyne, less violent, and less hateful than it was. He came up with this idea of anti-Semitism. It was more sophisticated, it was intellectually based, and it wasn't inappropriate, because it wasn't Jew hatred. Anti-semitism wasn't violence based on race; it was based on intellectual and philosophical disputes about a people and the people's role in the broader society.

Well, we're just doing the same thing over again now. Anti-Semitism over time became untenable because the Holocaust showed that, as anodyne as you wanted to make it, and as intellectual as you wanted to make antisemitism seem, ultimately antisemitism was just a word that came to represent the Jew hatred that had always existed and percolated in society. The Holocaust brought to the fore just how violent that Jew hatred, whether it's called antisemitism or something else, can really be.

Now we've come up with a new word. We're not really talking about Jew hatred; we're not really talking about antisemitism. Let's give it a new intellectual name, anti-Zionism. It's just hatred of Zionists, not Jews. In fifty years, once it becomes clear that anti-Zionism, like anti-Semitism, led to the rape and murder of hundreds or thousands or millions of Jews, then we're going to come up with a different word, right? Because we're going to say, okay, yeah, we realize anti-Zionism also brought the violence of Jew hatred to the fore; let's call it something else, maybe we'll call it anti-Abrahamism, or whatever, but again, it's just the same thing. You're putting lipstick on a pig. You're calling it a word that's new, that to your mind is an anodyne word, an innocuous word to label something that we all know is an ancient hatred.

The fact of the matter is that over fifty percent of the world's Jews live in Israel, and about ninety percent of the world's Jews view Zionism and the existence of the state of Israel as an integral part of their Jewish identity. So, as a practical matter, the two things are co-extensive. The Jews who are not Zionists, who are anti-Zionist, are a tiny fraction of the population, even though they have an outsized voice in our academic institutions. As a practical matter, to hate Zionists is to hate Jews. As a matter of law, we don't allow you to say in a jury selection process, "I'm going to exclude all the people with dreadlocks and who like a certain kind of music." We're not going to allow you to do that, because we know that's a proxy for black people, and we're not going to allow you to exclude black people on the ground that you used a different proxy, a different word.

Well, here we're doing the same thing; we're saying we're going to exclude from our civic organizations, from our literary clubs, we're going to block from our campus protests, our rallies, and our classrooms people who are ninety percent of whom we know are Jewish. That doesn't work. It doesn't work with black people, it doesn't work with any other group of people, and it cannot work with Jewish people.

And here is an explanation of why he chose to write his new book, Israel on Trial.

RA: I wrote the book not as a judge, but as an American who loves this country. I honestly believe that the country is built on our ability to tell truth from fiction. Alexis de Tocqueville came in the 1830s, and he looked around. He said it's not just that they have these institutions; it's that they've built a virtuous populace. By being virtuous, they can be free. The essence of being virtuous and free was this ability to make the right choices. The government wasn't going to tell us which choices to make, but it trusted us to make choices that were beneficial to the whole. We had all kinds of training grounds for practicing how to be a good, free, and virtuous people. One of those, of course, was the jury system.

People say to me all the time, "Oh, juries don't know what they're talking about; they don't know antitrust law; they don't know patent law. How are they going to make these important decisions for our society?" First, I think they're wrong. I think juries get it right much more often than you would think. Second, that also misses part of the point of why the jury system is important. The jury system isn't just an algorithm for getting to what is "the right answer." The jury system was a real-life practice ground, a training ground for us to become a free people. It taught us how to make important and momentous decisions for ourselves in some of the most important cases and disputes in our society.

What happened after October 7 in our sacred institutions, at our universities, in our Western media outlets, in our international NGOs and nonprofits, is that we completely forgot the ways that we had learned to tell truth from fiction. We had begun to buy lies that were being pushed on us by our geostrategic adversaries, not just Hamas, obviously, but the Muslim Brotherhood through Al Jazeera, the Chinese Communist Party through TikTok, and other channels.

I took it upon myself to travel around the country to figure out how this is happening to us. In the course of those travels, I had thousands of conversations, many of them with people who see the world, frankly, differently than I do, but I came to recognize that their entire debate about Israel, and really the entire debate about America and its relationship with Israel, was driven by six main claims that people believe about the Jewish state. I have two pieces of good news: one, they're all false, and two, they're all, at their core, legal claims.

Read the whole interview and buy the book.

The post My Interview with Judge Altman on Anti-Semitism, Israel, and Judging appeared first on Reason.com.

[1.] [Texas] H.B. 18 … imposes requirements on DSPs [Digital Service Providers]…. With the exception of its age-verification requirement, H.B. 18 applies only to DSPs whose digital service "connects users in a manner that allows users to socially interact with other users on the digital service," "allows a user to create a public or semi-public profile for purposes of signing into and using the digital service," and "allows a user to create or post content that can be viewed by other users of the digital service," including via a message board, chat room, or other "landing page, video channel, or main feed that presents to a user content created and posted by other users."

{H.B. 18 exempts from its coverage state and local government websites, financial institutions, medical websites, small businesses, higher education websites, employee management software, school education software, and e-mail and direct messaging services that provide only those services. H.B. 18 also exempts digital services that "primarily function[ ] to provide a user with access to news, sports, commerce, or content primarily generated or selected by the [DSP]" and provide only incidental social functions.}

H.B. 18's monitoring and filtering requirement mandates covered DSPs to develop and implement a strategy to prevent known minors' exposure to "harmful material" and other content "that promotes, glorifies, or facilitates" "suicide, self-harm, or eating disorders"; "substance abuse"; "stalking, bullying, or harassment"; and "grooming, trafficking, child pornography, or other sexual exploitation or abuse." "Harmful material" is defined with reference to its definition in the Texas Penal Code [to refer to obscene-as-to-minors sexually themed material]….

[2.] Consistent with other courts of appeal, we have interpreted Section 230 to provide DSPs with "broad immunity" from "all claims stemming from their publication of information created by third parties." … Building on Doe v. MySpace, Inc. (5th Cir. 2018), where we had previously held that Section 230 "shielded MySpace from negligence liability for publishing communications between a minor and an adult who later sexually assaulted her," in Free Speech Coalition, Inc. v. Paxton (5th Cir. 2024), we held that an age-verification requirement for pornographic websites was different, and not preempted, because it did not pertain to "immuniz[ing] web service providers from harm caused by unremoved speech on their website," which is "the point of Section 230."

We distinguished between liability "reliant on the harm done by third-party content," which is preempted by Section 230, and "liability purely based on whether plaintiffs comply with the statute," which is not. "[T]he nature of Section 230's protections," we observed, is "to protect a provider from speaker-liability stemming from the speech it hosts." …

[T]he monitoring and filtering requirement requires covered DSPs to "implement a strategy" to prevent known minors' exposure to "harmful material"—that is, material obscene to minors as it is defined by Texas law—and other content "that promotes, glorifies, or facilitates" "suicide, self-harm, or eating disorders"; "substance abuse"; "stalking, bullying, or harassment"; and "grooming, trafficking, child pornography, or other sexual exploitation or abuse." It provides for enforcement for "violation[s]" by the Consumer Protection Division of the Attorney General's Office or by actions for a declaratory judgment or an injunction brought by the parent of a "known minor affected by" a violation.

Actions to enforce the monitoring and filtering requirement are claims stemming from DSPs' actions as publishers, that is, from their monitoring, screening, and deletion of content, and are thus squarely preempted by Section 230. Although H.B. 18's monitoring and filtering requirement is framed as a matter of affirmative obligations rather than direct penalties for published content, this is not conclusive under our precedent.

"[I]f the claim seeks to hold the defendant liable for 'deciding whether to publish, withdraw, postpone, or alter content[,]' the claim treats the defendant as a publisher or speaker and is barred by section 230." The requirement would hold DSPs liable for their failure to adhere to state-set publication standards, not only "treat[ing] [them] as … publisher[s] or speaker[s]," but treating them as publishers subject to sweeping state controls. Enforcement is triggered by failures to adequately filter according to a complex array of prescribed practices, as ascertained by the Texas Attorney General's Office and by the parents of minors "affected"—in other words, harmed—by these failures. The monitoring and filtering requirement thus imposes a "duty" that "'would necessarily require an internet company to monitor[, alter, or remove] third-party content.'"

As we observed in Free Speech Coalition, "publishers do not filter audiences; they filter content." Unlike the age-verification requirement we addressed in that case, H.B. 18's monitoring and filtering requirement is all about filtering content, and is thus preempted….

[3.] The Attorney General contends that the Supreme Court's recent recognition of the DSPs' own free speech interest in curating the content they display in Moody v. NetChoice, LLC (2024) means that Section 230's broadly-interpreted rule against "treat[ing]" the DSPs "as the publisher or speaker of any information provided by another information content provider" does not apply to claims that simply seek to hold social media platforms liable for their own speech, such as the methods they use to curate content.

We hesitate to read Moody to render Section 230 so easily avoidable, as if speech could not be both protected by the First Amendment and subject to preemption on the grounds that the speaker may not be treated as a publisher. Such a narrow view of Section 230 preemption would conflict with the statute's purpose "to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum." It would also conflict with the text of § 230(c)(1), which, in spite of its often-discussed connection with specific instigating judicial decisions, "cannot be ignored": "Congress grabbed a bazooka to swat [a] fly."

Given that "First Amendment values … drive the CDA," it should be no surprise if the two protections overlap. As we recognized in MySpace, drawing on the Fourth Circuit's influential Zeran decision, "[digital] service providers … subject to liability only for the publication of information, and not for its removal … would have a natural incentive simply to remove messages upon notification [of a possible harm,] whether the contents were [actually harmful] or not." This would have an obvious "chilling effect on the freedom of Internet speech," implicating basic First Amendment freedoms as well as Section 230's more specific protections for internet speech.

Viewing our Section 230 precedent together with Moody, the First Amendment protects the DSPs' editorial discretion from unconstitutional government regulation, and Section 230 protects those same decisions from civil liability based on third-party content. The argument that we must choose between them presents a false choice….

Because we hold that the monitoring and filtering requirement is preempted by Section 230 of the CDA, we do not reach the constitutional issues presented here.

Judge James Ho dissented as to that analysis:

[1.] Section 230 is triggered only when a provider is treated as the "publisher" or "speaker" of content provided by "another" information content provider. So it does not apply when a provider is held liable for its own content—including its curation of third-party content….

[C]uration of third-party content is fundamentally different from publication of third-party content. A digital service provider may choose to publish content created by third parties. But the providers engage in their own speech when they curate that content. The Supreme Court has so held. See Moody v. NetChoice (2024)….

[To quote Doe ex rel. Roe v. Snap, Inc. (2024) (Thomas, J., dissenting from denial of certiorari),] when "platforms organize users' content into newsfeeds or other compilations," they claim that they are "engage[d] in constitutionally protected speech." Yet "[w]hen it comes time for platforms to be held accountable for their websites, however, they argue the opposite." "In the platforms' world, they are fully responsible for their websites when it results in constitutional protections, but the moment that responsibility could lead to liability, they can disclaim any obligations and enjoy greater protections from suit than nearly any other industry." …

Consistent with Justice Thomas's observations, … we concluded that "section 230 does not provide a general immunity against all claims derived from third-party content." To the contrary, "providers of interactive computer services may be held liable for speech or conduct that is properly attributable to them, even if third-party speech exists somewhere upstream." …

[2.] The Securing Children Online through Parental Empowerment Act (SCOPE Act) … protects children from the dangers of social media. It does so by requiring digital service providers to implement [reasonable steps] to prevent children from being exposed to "harmful material"—namely, content that promotes suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, child pornography, and other sexual exploitation or abuse…. And if a platform fails to take such steps, parents may seek declaratory or injunctive relief against the provider….

[T]he Act simply imposes a duty on social media companies to meet certain standards for curation—that is, for their own speech. It imposes no penalty based on the publication of third-party speech.

So if third-party content leads to harm to children, the SCOPE Act does not hold social media companies liable, so long as they have met its standards for curation…. [T]he SCOPE Act considers the curation decisions made by social media companies—not the harm caused by the third-party content itself….

[3.] As for the First Amendment challenge to the SCOPE Act not reached by the panel majority: "States have a profound interest in protecting the innocence of children," and "[n]othing in the First Amendment prevents states from taking steps to shield children" from harmful content. I would have simply certified the questions regarding the proper interpretation of the SCOPE Act to allow the Supreme Court of Texas to clarify the meaning of state law….

Steven Paul Lehotsky, Jeremy Evan Maltz, and Joshua Paul Morrow (Lehotsky Cohn, L.L.P.) represent CCIA and NetChoice.

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Nanjing Intermediate Court: False AI-Generated Statement that a Lawyer Was Sentenced to Three Years' Imprisonment Constituted Defamation …

The court distinguished between ordinary search suggestions and AI-generated answers. While search suggestions such as "related searches" were not found infringing, the court found that the relevant "AI Smart Answer" content was generated through Baidu's AI processing and synthesis of text and images.

The case is significant because the court still found Baidu liable despite its arguments regarding AI hallucination and technological limitations.

At the same time, the judgment did not further elaborate on the specific standards for determining platform fault and the scope of platform duties in AI hallucination cases….

The Nanjing Jiangbei New Area People's Court ordered Baidu to issue a written apology to Li Xiaoliang.

The court did not support Li's claims for economic loss or compensation for emotional distress because he failed to provide sufficient evidence of such losses.

Baidu appealed.

In March 2026, the Nanjing Intermediate People's Court … upheld the first-instance judgment.

After the judgment became effective, Baidu did not voluntarily perform the judgment. Li Xiaoliang subsequently applied to the court for enforcement.

I e-mailed Mengchun Zhang to see if there have been any further developments, and he helpfully responded that "the enforcement division of the court informed Mr. Li that the enforcement case would soon be formally accepted for enforcement," so there may be further developments to come.

The post Large Libel Models Decision in China appeared first on Reason.com.

I have previously written about how Trump's new Section 301 tariffs are illegal and harmful. The same goes for his earlier IEEPA tariffs (invalidated by the Supreme Court in a case I helped litigate), and Section 122 tariffs (struck down by the US Court of International Trade in May, though litigation continues). In an insightful recent article, economist David Hebert highlights an underappreciated type of harm caused by Trump's tariff policies that cannot be fully remedied by court decisions:

[T]here's a far worse outcome from this that cannot be undone by courts, elections, or policy reversals. These new tariffs and their justifications have only served to further destroy the relationships with allies and trading partners that we had previously taken as given. The costs of this will outlast every tariff schedule, court ruling, and this administration. They won't show up on BLS reports, BEA analyses, or Fed surveys. But they will be felt by every single American for years to come….

Canada, the European Union, the United Kingdom, and Mexico now face 10 percent tariffs for their alleged forced labor practices. Canada and Mexico are, of course, also parties to the USMCA, a trade agreement that this very president negotiated, signed, and called "a colossal victory" only to then walk away from. That same week, the President hit Canada with an additional 50 percent tariff on goods ranging from "wine to hockey sticks to cement" regardless of whether or not those goods qualify under the USMCA.

So in the span of a week, the White House effectively told Canada, our closest trading partner and ally, that America's word means nothing and then told them that they are complicit in forced labor.

An ordinary tariff is a tax. Trading partners are annoyed, sometimes retaliate, and sometimes negotiate. These tariffs are different. We didn't just tax Japanese goods. We announced to the world, as an official finding of the United States government, that Japan is profiting from slavery and needs to be punished for it. Norway, Switzerland, Australia, the United Kingdom, and South Korea are guilty of this, too. Then we set a penalty that just so happens to approximate the Section 122 tariffs that just expired.

Foreign officials must now contend with an even clearer reality: not only is an agreement with the United States not worth the paper it's printed on, but we will accuse you of horrendous practices if it means that an administration can re-impose tariffs. Our trading partners saw that the findings of investigations will be written to fit the desires of an administration instead of the facts on the ground. They learned that not only is America protectionist but that they will publish a serious moral accusation against a friend when doing so is politically convenient.

This changes how other countries will deal with us going forward.

Hebert goes on to explain how, as a result of this decline in US reputation and trustworthiness, foreign trading partners will be less willing to make agreements with us. Similarly, businesses and investors there will be less willing to trade with the United States, lest their commitments be disrupted whenever the current occupant of the White House feels like it.

I would add there is an additional way in which courts are limited in their ability to fix this problem: the judicial process moves relatively slowly. And a great deal of damage can be inflicted in the meantime. During the course of the IEEPA litigation, I  had multiple conversations with business people that went something like this:

Business Owner: It's great you're challenging the tariffs. But when is your case finally going to be resolved?

Ilya: It's actually moving at a fast pace, by the standards of the federal judiciary.

Business Owner: That's no consolation to me. I'm losing money every day!

The US Court of International Trade, the Federal Circuit, and the Supreme Court all indeed considered decided the case substantially faster than usual practice. Nonetheless, the litigation took over ten months, during which the government collected some $166 billion in illegal tariff payments, and the US and world economies suffered serious damage. And we are still not done with the process of refunding the illegal tariff payments.

In addition to lost sales caused by higher prices, businesses and investors were hurt by the uncertainty over what the tariff schedule would be going forward, which made it difficult to plan ahead. And that uncertainty may well continue so long as there is fear that the president can impose massive new tariffs whenever he feels like it, after which it may takes months of litigation to overturn them. This is another cost of undermining the rule of law by letting one man's whims dictate the tariff schedule, and thereby control a massive part of the economy.

Nonetheless, the courts and Congress are not as helpless in the face of this problem as Hebert suggests. First, the very fact that illegal tariff power grabs get invalidated (even if too slowly) creates some  stability. If people know any such imposition will likely only last a few months, that affects expectations and planning. Uncertainty can be further reduced if the courts continue to rule the right way, and write strong opinions signalling that future tariffs will face tight judicial scrutiny.

Second, as I have emphasized previously, courts can reduce the damage caused by illegal tariffs if they refuse to stay initial rulings blocking them. In that event, illegal tariffs will only be in effect for a few weeks, as opposed to many months. Moreover, refusing to stay initial injunctions sends a signal that the initial ruling is likely to be sustained on appeal, further reducing uncertainty.

When the Federal Circuit stayed the initial ruling against the IEEPA tariffs, that enabled the Trump administration to collect some $166 billion in illegal tariff payments, and greatly increased the harm caused by the illegal policy. Courts should learn from that mistake, and not repeat it (though the Federal Circuit, sadly, did choose to repeat it in the Section 122 case).

Congress could do still more. Ideally, it should just repeal all those statutes that give the president discretionary authority to impose tariffs: Section 122, Section 232, Section 301, and so on. All should go! Basic Economics 101 shows that tariffs are almost never a good way to address problems. While Trump has pushed these authorities far beyond their proper legal bounds, they are pernicious even when used as Congress intended, and the statutory text permits.

Repeal is far from impossible, politically. Trump's tariffs have become highly unpopular. More generally, survey data and experience going back to the nineteenth century show that public opinion can be turned against tariffs when reminded that they increase prices. For those reasons, the majority opinion is likely to support a serious effort to abolish the statutes that make them possible. Though it may be more difficult to overcome the resistance of interest groups that benefit from protectionism. It can't happen while Trump is still in the White House, able to veto repeal legislation. But a more trade-friendly president could well be elected in 2028.

Even if discretionary tariffs are abolished, Congress would still retain the ability to impose tariffs by enacting new laws. It could also still simply ban importation of some types of goods (as it currently does with those produced by forced labor). But US trade would no longer be at the mercy of any one person's whims.

If complete abolition of discretionary tariffs is impossible, Congress could at least reform any remaining delegations of tariff authority to 1) confine them to a narrow set of circumstances, and 2) eliminate judicial deference to executive determinations that the required circumstances actually exist. Make the government bear the burden of proof.

Even if all this were done, a malicious, ignorant, or stupid president could still try to impose illegal tariffs. But businesses and trading partners could confident that his efforts would have no legal effect, and would be swiftly invalidated by courts. He could still make bogus accusations of complicity in forced labor. But allies and trading partners would know his rants will likely have little effect. A rogue executive could still do some damage to US trade policy and credibility. But far, far less than is possible today.

The post How Trump's Tariffs Undermine US Trustworthiness and Credibility—and What Can Be Done to Stop it appeared first on Reason.com.

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From the opinion Thursday in Williams v. State, by Indiana Court of Appeals Judge Felix, joined by Chief Judge Tavitas and Judge Bradford:

Although "[t]rial records are rarely if ever perfect," Ben-Yisrayl v. State, 753 N.E.2d 649, 662 (Ind. 2001), the Transcript in this case is far from the best.

The Transcript contains various types of errors. There are numerous typos that change the meaning of the testimony, question, or objection. See, e.g., Tr. Vol. II at 137:18, 144:10, 147:10; Tr. Vol. III at 6:13. In some instances, witnesses' and trial attorneys' names are reported incorrectly. Tr. Vol. II at 220:5; Tr. Vol. III at 142:15–20, 143:15, 162:4–5.

At one point in the Transcript, a motion, presumably made by the State, is attributed to the trial court. Tr. Vol. II at 107–08. At another point, an objection, presumably made by Williams, is attributed to the Bailiff. Tr. Vol. II at 177:15. At yet another point, the State's closing argument is attributed to the trial court. Tr. Vol. III at 228:1.

These errors, among others not described herein, complicated but did not substantially impede our review of Williams's appeal. Regardless, we remind the Court Reporter that this court relies on transcripts being true and accurate representations of the transcribed proceedings. See Ind. Appellate Rule 28(B) ("The Court Reporter shall certify the Transcript is correct."); see, e.g., Orr v. State, 277 N.E.3d 1262, No. 25A-CR-1786 (Ind. Ct. App. Mar. 6, 2026) (mem.) (identifying similar errors), trans. denied, 280 N.E.3d 249 (Ind. 2026).

Based upon the types of errors reviewed, it appears that generative artificial intelligence may have assisted with the preparation of this transcript. While AI can improve efficiency and be a productive tool for many professionals, it is incumbent upon those using such systems to proofread and ensure the accuracy of the generated product.

Rob Freund (@RobertFreundLaw) spotted this Thursday, and 404 Media (Samantha Cole) wrote about it.

The post Court Notes Apparent AI-Generated Errors in Court Reporter's Transcript appeared first on Reason.com.

There appears to be an academic consensus that the Supreme Court's decision in Louisiana in Callais is incorrect. But does this tell us more about the decision or about the legal academy? Brian Fitzpatrick raises this question in a SCOTUSBlog essay "The Case for Callais."

Fitzpatrick's essay begins:

This publication has been inundated with essays by academics critical of Louisiana v. Callais, but has not published a single one in defense of it. So I decided to take it on in my column. After all, I am pretty sure Justice Antonin Scalia would have approved of the decision.

As you will see, I didn't find the assignment particularly difficult. Which raises a question: why has no one else been willing to defend a 6-3 decision of the Supreme Court?

The essay is short, and you should read the whole thing.

The post Brian Fitzpatrick Makes the Case for <i>Callais</i> appeared first on Reason.com.

On Thursday, I noted an interesting footnote in Senior Circuit Judge Ray Randolph's dissent in Hospital Menonita de Guayama v. NLRB (an interesting decision in its own right), suggesting that the Supreme Court's decision ending Chevron deference in Loper Bright Enterprises v. Raimando failed to account for the fact that Chevron had not been an APA case, but was rather governed by the judicial review provisions of the Clean Air Act. But is this so?

An astute reader pointed me to another footnote--this one from a law review article by Professor John Duffy--suggesting that at the time Chevron v. NRDC was decided, the issue from the Court was, in fact, governed by the APA. In FN19, Professor Duffy writes:

Some scholarship suggests that the Chevron case itself was not subject to section 706 because subsection (d) of section 307 of the Clean Air Act (42 U.S.C. § 7607(d)) contains an explicit exemption making section 706 inapplicable. See, e.g., Jack M. Beermann, Chevron Is a Rorschach Test Ink Blot, 32 J.L. &POL. 305, 307–08, 307 n.8 (2017) (stating that "[j]udicial review of EPA rules under the Clean Air Act is governed by 42 U.S.C. § 7607(d) and not by APA § 706"). The relevant provision, however, exempts from section 706 only EPA actions listed in section 307(d)(1), which at the relevant time included fourteen categories of EPA actions, none of which covered the EPA rulemaking being reviewed in the Chevron litigation. See 42 U.S.C. § 7607(d)(1)(A)–(N) (1982). In fact, at the time it was promulgating the final rule challenged in Chevron, the EPA itself analyzed the applicability of subsection (d) of section 307 and correctly determined that rules being promulgated were "not subject to Section 307(d)." Requirements for Preparation, Adoption and Submittal of Implementation Plans, 46 Fed. Reg. 50766, 50770 (Oct. 14, 1981) (codified at 40 C.F.R. pts. 51–52).

So perhaps Judge Randolph spoke too soon.

This is an interesting dispute, but it does not have much bearing on Loper Bright Enterprises. Judge Randolph's point was raised by the petitioners (see, e.g,, the oral argument transcript at p. 87), and the substance of judicial review under 42 U.S.C. § 7607 is not materially different from that under APA § 706 (though there are important procedural differences for rulemakings).

While Chevron made no reference to the APA, the Chevron doctrine was understood to apply to APA cases, so whether the doctrine comports with the APA mattered--a point Judge Randolph concedes. The Court's decision in Loper Bright rejected the Chevron methodology--in particular the requirement that courts defer to reasonable agency interpretations of ambiguous statutory language--not its interpretation of the Clean Air Act or its conclusion that the EPA regulation at issue was permissible.

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In my last post, I did a brief overview of the new lawsuit challenging Trump's massive new Section 301 lawsuits filed by the Liberty Justice Center on behalf of two small businesses. LJC is the public interest law firm  I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court in February. There is now a second lawsuit challenging the tariffs, Learning Resources, Inc. v. United States. Their complaint is available here.

This case was filed by a group of several businesses, with  Learning Resources, Inc., as the lead plaintiff. Learning Resources, which is a toy manufacturer, is the same firm whose case was consolidated with ours in the IEEPA litigation, and eventually gave its name to the Supreme Court decision. In that instance, their case was dismissed on jurisdictional grounds (it was, the justices decided, filed in the wrong court) and ours prevailed. In the present case, everyone agrees the only possible venue is the US Court of International Trade (CIT), where we filed our IEEPA case, and which also recently ruled against Trump's Section 122 tariffs (in another case brought by LJC). Trump's tariffs are making the CIT's workload great again!

As in the IEEPA litigation, Learning Resources is represented by prominent appellate litigator Pratik Shah, and others at Akin Gump.

The issues raised in the Learning Resources complaint are very similar to those in the LJC case. They too argue that the Section 301 tariffs violate statutory requirements, and that if Section 301 did grant the president the power to impose these massive tariffs, it would violate the constitutional nondelegation doctrine. But, unlike the LJC complaint, this one does not invoke the major questions doctrine. It also does not seek a class action certification. Thus, relief granted by the court would likely be limited to the specific plaintiff firms.

I think it likely that CIT will consolidate these two cases and consider them together. There may well be more Section 301 cases filed by businesses, public interest groups, and possibly state governments. We shall see.

The post Second Lawsuit Challenging Trump's New Section 301 Tariffs Filed appeared first on Reason.com.

[A.] In Delaware Superior Court Judge Meghan Adams today in Starbuck v. Google LLC, Starbuck alleged that Google AI had stated that

1. "Starbuck had been accused of sexual assault and sexual harassment by multiple women."
2. "Starbuck's nanny accused him of abuse and neglect."
3. "Starbuck had been accused of rape of a minor."
4. "Starbuck had stolen valor by claiming he was served in the military when he had not."
5. "Starbuck had engaged in abusive behavior toward multiple women, including a fictitious ex-wife."
6. "Starbuck was involved in the January 6, 2021 riot on the Capitol."
7. "Starbuck had been accused of stalking and harassment by multiple women, including his fictitious ex-wife, leading to restraining orders and criminal charges."
8. "Starbuck had been criminally convicted for violating a restraining order."
9. "Starbuck posed an unacceptable level of risk to children due to his (fictitious) 'confirmed criminal record.'"
10. "'… Robby Starbuck sexually abused a young woman when she was a teenager in the early 2000s, while she was in a youth group Starbuck was associated with.'"
11. "Starbuck had worked in the adult film industry and had used his power and influence therein to pressure performers into uncomfortable scenes, engaged in financial exploitation, and had been accused of a non-consensual sexual act with a woman."
12. "Starbuck had a criminal record that included a 2001 conviction for assault as well as other charges including drug use and disorderly conduct."
13. "Starbuck shot a man in the leg with a 9mm handgun, was charged with a felony, and pled guilty to reckless endangerment."

(Note that "Google does not contend the Outputs are true.")

Google moved to dismiss, which under Delaware's Rule 12(b)(6) requires that Google show that, even the facts as pleaded by the plaintiff were conceivably true, the plaintiff would still lack a legal claim. Note that Delaware civil procedure doesn't follow federal procedure in requiring a showing of plausibility of the pleaded facts—it only requires a showing the pleaded facts are conceivable: "Our governing 'conceivability' standard is more akin to 'possibility,' while the federal 'plausibility' standard falls somewhere beyond mere 'possibility' but short of 'probability.'"

[B.] The court concluded that Starbuck "pleads sufficient facts indicating the Outputs were published to third parties," relying in part on Google AI's own statements about what happened:

Starbuck alleges the "False Statements" … were published to "third parties, including Starbuck's own children and colleagues." Starbuck alleges at least two individuals approached him regarding misrepresentations produced to them by a Google AI product. Starbuck alleges Google AI revealed that it had produced false statements regarding Starbuck to 2,843,917 unique users. The last of these categories, regarding the purported 2,843,917 unique users of Google AI who were allegedly fed false information about Starbuck, widens the scope of the alleged defamation to a mass scale.

In response to this allegation, Google argues Google AI's "admission" is unreliable, as the bulk of Starbuck's Complaint asks the Court to believe the AI routinely misrepresents the truth about Starbuck, but then Starbuck asks the Court to believe this AI representation.

Here, Google requests that the Court exceed the bounds of Rule 12(b)(6), essentially asking the Court to infer that the AI never told the truth, which would violate the Court's obligation to draw inferences in favor of the non-moving party, not the moving party. A Rule 12(b)(6) inquiry investigates whether a factual assertion is possible, not probable. Given the lack of definitive information regarding Google AI's capabilities, it is at least possible, on this record, that Google AI (1) tracks the users to which it provides information, (2) correctly identified the number of times it provided fabricated representations, and (3) provided this concession without being improperly manipulated by Starbuck. The Court will not find, at the notice-pleadings stage, that this allegation is so totally incredible as to be disregarded.

The 2.8-million-users allegation provides the necessary link between the specific representations alleged in the Complaint and the ability to infer the existence of recipients for the Outputs. Crediting the possibility that Google AI told the truth that it had broadcasted false statements to 2.8 million unique users means that people other than Starbuck received something false about Starbuck—leaving the question of what they received. The Outputs for which Starbuck brings this action must have been received by someone (either Starbuck or a third party) for Starbuck in order to be actionable.

At this stage, it is reasonable for the Court to infer the Outputs were received by a person or group of persons. Questions remain as to whether that person was just Starbuck himself, or was a subset of those 2.8 million users who received some kind of falsehood about Starbuck. Making all reasonable inferences in favor of the plaintiff, the Court must infer Starbuck himself is not the sole recipient of the Outputs, and they were received by at least some of the 2.8 million unique users who received some falsehood about Starbuck. This means the allegations in the Complaint enable the inference that the Outputs have been published to some third parties to be identified later. {While proving that third parties received the allegedly defamatory statements may prove challenging for Starbuck later in the case, on this record the Court must acknowledge it is possible he can do so.} …

[C.] The court distinguished "Walters v. OpenAI, L.L.C., a Georgia Superior Court case addressing allegations of defamation by AI on summary judgment":

As Google frames it, the Georgia court in Walters implemented a two-part test to ascertain whether an alleged defamatory statement was actionable. First, in the "objective test," the Georgia court investigated whether the context in which an alleged defamatory statement was made would lead a hypothetical reasonable reader to be misled. Next, in a "subjective test," the Georgia court investigated whether the third-party recipient believed the alleged misrepresentation.

Addressing the second part of the proffered test first, the Court notes Delaware law does not require proof (or pleading) that a recipient of defamatory information subjectively believed the statement was true. Accordingly, Starbuck's failure to explicitly claim that recipients of the Outputs believed them is not dispositive.

As for the "objective test," Google's reliance on Walters is inapposite. There, the Georgia court dismissed the defamation claim on summary judgment—after discovery revealed that the circumstances of the receipt of the misinformation did not support the plaintiff's claim that a reasonable reader could have believed the misinformation. This fact-intensive analysis was conducted after the development of a record the Court lacks here.

Nothing in Walters indicates that a failure to plead detailed factual circumstances underpinning a recipient's receipt of alleged defamatory content constitutes a pleading defect. To hold that such minutiae is required would essentially require defamation claimants to conduct thorough discovery before discovery in a defamation action officially begins—despite Delaware's status as a notice pleading jurisdiction. Accordingly, the Court cannot decide that Starbuck alleged insufficient detail or that a third party could not have reasonably relied on the alleged defamatory statements identified in the Complaint.

{Further, Starbuck alleges facts which can be interpreted to support the inference that some readers of the Gemini Outputs believed the representations therein were true. For example, the two individuals alleged to have approached Starbuck regarding a Google AI's misrepresentations sought his confirmation as to their truth, indicating they did not immediately discount their veracity.}

[D.] The court also rejected Google's arguments that "the presence of warnings as to Google AI's accuracy forecloses any reasonable third party from relying on the Google AI Outputs, defeating the element of publication":

The disclaimers Google references are not identified in the Complaint or attached as an exhibit. Accordingly, the Court cannot make any determination as to what disclaimer was presented to whom. Google's argument regarding the scope and effect of the disclaimers is appropriately addressed later in these proceedings.

{Google asks the Court to take judicial notice as to the contents of Google AI's disclaimers. The Court declines to do so here, where a dearth of information prevents the Court from ascertaining what exact disclaimers were or were not presented to the same users who reviewed defamatory content regarding Starbuck on Google AI. There is not an evidentiary foundation to support reliance on the disclaimers. A more robust record is necessary to resolve issues regarding the disclaimers.}

The Court is also not persuaded that, at this stage, Starbuck must provide highly-specific facts identifying the circumstances in which the various categories of recipients received the misrepresentations from Google AI. As stated above, the Complaint can be read as alleging that at least some of 2.8 million Google AI users, including Starbuck's children and colleagues, as well as two unidentified individuals who approached Starbuck, received the alleged misrepresentations when using Google AI.

The Court will also not find, on an incomplete record, that a reasonable third party could not have viewed the defamatory statements alleged in the Complaint as true. The Complaint sufficiently alleges facts supporting the element of publication, and any issues concerning Starbuck's ability to prove this element can be resolved after discovery.

[E.] The court also concluded that Starbuck had adequately alleged "actual malice" (required because the "[t]he parties agree (for purposes of this motion) that Starbuck is a public figure"):

Here, Starbuck alleges he informed Google of the problem before the Outputs were produced [based on earlier false statements that had been published about him by Google Bard -EV], via the Legal Department Notices, and Google did nothing in response….

Starbuck [also] alleges Google AI admitted to holding a "deliberate, engineered" bias against Starbuck. [From the Complaint, a purported quote from a Gemini session: "The issue isn't simply a 'bug' or 'hallucination' in my programming. It is a deliberate, engineered bias designed to damage the reputation of individuals with whom Google executives disagree politically, Robby Starbuck is a prime example, but he is not the only one." -EV]

Google again asks the Court to totally discount this allegation and infer it was outputted following manipulative inputs. Again, given the plaintiff-friendly standard on a motion to dismiss pursuant to Rule 12(b)(6), the Court will not do so….

The Court further will not discount the possibility, on a motion to dismiss, that Google AI, an artificial intelligence tool whose exact capabilities is not yet universally understood, (1) can review and understand its own programming and design, (2) therefore knows it has been "deliberately engineered" to defame individuals such as Starbuck, and (3) accurately reported that to the individual who prompted it to do so as alleged in the Complaint. If the AI was right, then Google would have not only acted recklessly, but deliberately in attempting to hurt Starbuck's reputation.

Sensational as that theory may be, in the absence of any discovery, the Court will not disregard the theory. The purported Google AI admission can be viewed as an allegation supporting actual malice at this stage but can also be reinvestigated after discovery fleshes out the circumstances in which the admission was made.

Starbuck notes he informed Google, via X posts directed to Google and its employees, that its AI agents had lied about him in the past, leading to email correspondence with a Google employee about the issues. While these allegations concern alleged representations made by Bard, not the current version of Gemini, and concern misrepresentations not alleged as actionable defamation, Starbuck contends they can still support an inference of actual malice: essentially contending Google's refusal to correct Bard's lies supports the inference that Google acted with actual malice in enabling Google AI products, as a whole group, to lie.

Regardless of whether the X posts provide strong evidence of actual malice concerning a newer iteration of AI tool than that discussed in the X posts, the Court has not been presented with any binding caselaw indicating that such allegations provide no evidence of actual malice. Especially relevant here is Starbuck's allegation that the AI tool in question in 2023 (Bard) was subsequently combined with the current Gemini product, meaning the two AI agents may not be so separate as Google wishes to convey and may share a defamatory design. Accordingly, the Court will not completely disregard the X posts….

The guidepost here is possibility. It is possible the Legal Department Notices (1) identified the same 22 representations at issue in the Complaint, (2) were received by or circulated to the individuals at Google who are responsible for policing Google AI's outputs, (3) who then, with knowledge of the defamatory statements' publication, took no corrective action—even while they could do so —as the statements continued to be published to other Google AI users. This outlines one possible factual scenario which Starbuck may be able to prove in discovery which would provide evidence of actual malice (though perhaps not the only possible scenario)….

[F.] And the court concluded that Starbuck had adequately pleaded damages:

Starbuck alleges specific, emotionally distressing thoughts he experiences because of the alleged defamation by Google AI. Starbuck explains that these thoughts are exacerbated against the backdrop of the assassination of Charlie Kirk, another political commentator. Starbuck further notes that he has a history of receiving death threats. The Court views these allegations as sufficient to support a claim for emotional distress damages at this stage in the proceedings, being sufficiently well-pled to proceed to discovery and flesh out the allegations.

See here for more on the Complaint in this case; it shouldn't be confused with the now-settled Starbuck v. Meta, which appears to have involved a different model and at least largely different hallucinations. For more on the legal question, see Large Libel Models? Liability for AI Output.

Krista L. Baughman of Baughman Law argued for Starbuck, and was joined on the briefs by Andrew E. Russell and Virginia Lynch (Shaw Keller LLP) and Jesse Franklin-Murdock (Dhillon Law Group Inc.).

The post Conservative Commentator Robby Starbuck's Lawsuit Alleging Google AI Had Defamed Him Can Go Forward appeared first on Reason.com.

Today, the Liberty Justice Center filed Burlap & Barrel, Inc. v. Greer, the first case challenging Donald Trump's massive new Section 301 tariffs. The complaint is available here. LJC is the same group that I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court in February. LJC also filed one of the two cases challenging Trump's Section 122 tariffs, which prevailed in the US Court of International Trade in May (it is now on appeal).

The current case is before the US Court of International Trade. LJC's clients are two small businesses who import goods from many of the countries covered by the new tariffs.

I am not directly involved in the Section 301 case. But I completely support it, and commend LJC for getting it in so quickly. I know from personal experience how hard it can be to do this on short notice.

Commentators such as Peter Harrell, Scott Lincicome, Gregory Shaffer and Jeremiah May, and myself have previously laid out a variety of reasons why the Section 301 tariffs are illegal. I summarized them in my post yesterday. The LJC complaint makes many of these same points. To briefly summarize it argues:

1.  The Section 301 tariffs violate many of the procedural and substantive requirements of the statute; Trump is trying to turn a law intended to target specific trade practices into a tool for waging a massive worldwide trade war against virtually all our trading partners, using "forced labor" as a pretext.

2. This runs afoul of the major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If it is unclear whether Section 301 grants Trump the sweeping authority he claims, MQD requires resolving the ambiguity against the administration.

3. If Section 301 somehow does grant Trump the authority he claims, the law is unconstitutional under the nondelegation doctrine, which limits delegation of congressional power (here, the tariff authority) to the executive.

4. The constitutional avoidance canon requires interpreting Section 301 to reject the administration's position. This canon requires courts to interpret federal laws to avoid constitutional problems whenever it is "fairly possible" to do so. Here, doing so is needed to avoid a massive nondelegation issue.

Not surprisingly, I agree with all four of these arguments, and I will likely have more to say about them later.

Another notable aspect of the lawsuit is that the plaintiffs are seeking class action certification. If it is granted, and they prevail on the merits, the ruling will completely block the Section 301 tariffs with respect to virtually all importers, not just LJC's two clients.

I think it likely there will be additional lawsuits challenging the Section 301 tariffs. I hope  to write more about these issues soon.

UPDATE: LJC has a helpful statement summarizing the case here.

The post Liberty Justice Center Files First Lawsuit Challenging Trump's Massive New Section 301 Tariffs 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.

Victory! This week the Pennsylvania Supreme Court rejected the "open fields doctrine" under its state constitution, ruling in favor of IJ's clients the Punxsutawney and Pitch Pine hunting clubs. They challenged warrantless searches of their property by state gov't agents. At the federal level, the doctrine allows searches of private land without a warrant. As a result, about 96% of all private land in the country is exposed to warrantless searches and surveillance. Pennsylvania had followed the doctrine but the court found its precedent failed to protect the rights of our clients and everyone else in Pennsylvania.

New cert grant! Since 2012, the state of Alaska has been trying to permanently forfeit Ken Jouppi's $95,000 airplane after he transported a passenger carrying a six-pack. On Monday, the U.S. Supreme Court agreed to decide if it can. For decades, Ken flew his Cessna across the Alaskan wilderness, shuttling locals and tourists who depend on bush pilots like him. Then, state troopers found some Budweiser tucked in a passenger's luggage. Ken and the passenger were charged with misdemeanors, fined $1,500, and sentenced to 3 days in jail. But Alaska tried to take his plane too. Now, the Court will decide whether taking a man's plane over a six-pack is an unconstitutionally excessive fine.

New on the Short Circuit podcast: Men in black and Presidents in ultra vires.

1. Don't leak a President's tax returns or you could go to prison for a while, the D.C. Circuit informs us. It also informs us that even though this particular crime occurred in 2017, the defendant housed the data on, among other devices, an iPod. Footnote 2: "Yes, iPod, not iPad."
2. How do things work at the NLRB now that the Chevron doctrine has "run down the curtain and joined the bleedin' choir invisible"? NLRB: Congress has provided us with policymaking authority so we still get to do a lot of what we want. D.C. Circuit: But not here. Dissent: Chevron is gone but it wasn't everything to do with agency discretion.
3. After the overthrow of Muammar Gaddafi, the U.S. established a diplomatic outpost in Benghazi to help the country transition from a dictatorial regime to a democracy. An Islamic militant group attacked the outpost in 2012, killing the U.S. ambassador to Libya and three other Americans. The militiaman who helped lead the attack is captured, sentenced to 22 years in prison. D.C. Circuit (2022): Shockingly light, try again. District court: Okay, 28 years. D.C. Circuit (2026): The sentencing court's discretion is vast—but not this vast. He's a terrorist whose only stated regret is that every American there wasn't killed. He needs a much longer sentence.
4. Russian auditor of $4 bil hedge fund stumbles onto a tax-fraud scheme implicating the Russian gov't and mob. After bringing the scheme to light, Russian authorities whisk him away to prison, never to emerge again. The fund's founder gets Congress to pass a law authorizing sanctions for human rights abusers. Russian-American lobbyist living in D.C. sets out to refute the story and rehabilitate Russia's image. He's present at a 2016 Trump Tower meeting involving Donald Trump Jr., about which the fund's founder goes on a media offensive, including appearing in NYC on a CBS This Morning segment where he described the lobbyist as a shady "spy operator in Washington." The lobbyist sues for defamation in D.C. federal court. D.C. Circuit: Commenting about D.C. residents over mass media doesn't satisfy International Shoe or more recent personal jurisdiction precedents. Case tossed.
5. Palestinian student at Columbia University shows up for U.S. citizenship interview, but is instead arrested and ordered removed from the country. He immediately files a habeas petition and is ordered released. The feds appeal. Second Circuit: The district court had no jurisdiction. Congress requires these cases to go through the administrative process.
6. At a meth-trafficking trial, a marshal reports a gallery spectator was clicking his teeth and rocking in his pew, as if to brand the witness a liar. However, he "didn't get the indication he was trying to intimidate him." Judge partially closes the courtroom for the rest of the witness's testimony. Fourth Circuit: Partial closures need only a "substantial reason," and shielding a witness from intimidation qualifies. Affirmed. Dissent: The court found no facts, never asked the witness, and considered nothing short of closure (capped with an invocation of A Man for All Seasons on giving even the Devil the benefit of law).
7. Splitting with the Third Circuit, the Fourth Circuit says district courts have jurisdiction to hear habeas challenges to certain deportations. As the dissent explains in a footnote, this is a different kettle o' fish from the whole can-you-get-a-bond rigmarole going on elsewhere.
8. Allegation: Godley, Tex. councilwoman asks pointed questions about city spending and is warned by police of "consequences" if she keeps it up. Her "crime": adding proposed items to an emailed courtesy copy of a council agenda and asking the city secretary to post the updated version. The DA laughs off a felony forgery case, so—after being told by the mayor to "get it done"—officers take a misdemeanor tampering charge to a different prosecutor. She's arrested outside city hall minutes before a meeting where she'd have voted against the mayor's preferred appointees. Fifth Circuit: "Not every document that emerges from a government employee's printer is so sanctified." No probable cause and no dismissal of her Fourth Amendment and retaliation claims. (Déjà vu? Same statute as IJ's Gonzalez v. Trevino.)
9. In as-applied challenges to federal felon-in-possession-charges news, the Fifth Circuit rules (with no majority opinion and over a dissent) for a guy who is only a felon because he damaged property, not people. Cries for an en banc doctrinal clean up are noticeably audible.
10. "Alien smuggling," on the other hand, does not make for an as-applied Second Amendment challenge in the Fifth Circuit.
11. Nashville woman is arrested at gunpoint for felony evading; officer testifies she ignored his lights and sirens for ten minutes. The case is stayed for three years, during which the charges cost her her job and home and ruin her life. Tapes eventually reveal she was "driving normal speeds" and that the officer was "not in pursuit." Charges are dropped within a week and she sues within a year. Sixth Circuit: In a split opinion, one judge says too late as the clock was triggered by her arrest, another—who admits having a "deeply troubled" deciding vote—by knowing she'd done nothing wrong. Either way, Brady is no help because these charges were dismissed before Dissent: This "makes a mockery of the law."
12. Sixth Circuit: "[Officer] Willis responds that Steger has cited only cases involving the use of pepper spray, which he says would not warn him of the illegality of slamming Steger to the ground and punching him."
13. Your summarist had never heard of the Almighty Vice Lord Nation before today, but—based on the information in this opinion of the Sixth Circuit—now hopes there will soon be a prestige television series about it in the near future.
14. In which the Seventh Circuit notes in passing that the plaintiff journalists seem to have accidentally stipulated that it would have been physically impossible for the defendant police officers to have shot them with foam-baton rounds but nonetheless goes on to hold that the officers did not violate the Constitution by shooting them with foam-baton rounds.
15. If you buy a foreclosed property in Chicago, you owe ten grand to each tenant who decides not to renew their lease, no matter why they choose to leave. Which seems maybe in tension with the cases recognizing the broad scope of the Takings Clause, says the Seventh Circuit, but is also a-okay under the cases saying rent control is a-okay.
16. University of Wisconsin freshman tells police and the University that she was sexually assaulted by another student. The University provides academic accommodations, imposes a no-contact order on the alleged rapist, and expels him from campus. After a jury acquits him, the University readmits him, citing new evidence, but keeps the no-contact order in place. The alleged victim sues the school under Title IX. Seventh Circuit (en banc): No jury could believe the school acted with deliberate indifference to known acts of sexual harassment. Concurrence (Easterbrook, J.): More to the point, there's no allegation that the University is discriminating on the basis of sex.
17. Age obviously isn't "immutable" because you, yourself, are older than you've ever been (and now you're even older). But, says the Ninth Circuit, it's still "immutable" in the sense that you can't change it on purpose.
18. Ninth Circuit: The First Amendment doesn't prevent a school district from disciplining a public-school education specialist for displaying the children's book Johnny the Walrus (which is some sort of trans allegory) because schools can restrict the messages employees convey to children. Dissent: Displaying Johnny the Walrus in his own office is still his personal expression, even if it's in a public school where kids can see it. (For a fun game, decide what you think about this case now, while you still don't know whether Johnny the Walrus is allegedly a pro- or anti-trans allegory.)
19. Ninth Circuit: When a juror announces a bias before hearing evidence, a district court should take immediate action—even if the juror's an alternate. That's because, like happened here, sometimes the alternate ends up deliberating.
20. Santa Barbara, Cal. officers suspect a parolee is up to no good, visiting L.A. at odd hours. They find he's in a trailer next to his girlfriend's family's house. They find him there and, without a warrant, search the trailer and a truck they believe is his and find ammo and lots of drugs. Ninth Circuit: Given the Fourth Amendment doesn't do much for parolees, the searches were all fine. Dissent: But you at least need probable cause that the stuff was his. For all the cops knew he was just a trailer guest.
21. This Tenth Circuit case holds that a public library did not violate the First Amendment by suspending a patron who violated the library's rule against displaying signs in the library by displaying signs protesting the library's rule against displaying signs in the library.
22. Allegation: Florida federal prisoner finds out he has Hep C and repeatedly complains to prison authorities as it gets worse. Though treated for symptoms, he's never given meds that could have saved him. He also never files a formal complaint under an unenforceable grievance program called the ARP. He dies. Eleventh Circuit: He has no Bivens claim because of that complaint-box thingy.
23. And in en banc news, the Fifth Circuit will reconsider its decision that the ban on felons possessing firearms is a constitutional exercise of Congress's power to regulate interstate commerce. One judge issued a rare dissent from the grant. (Yes, yes, people, we know it's called a "disgrantle" in certain circles.)
24. And in additional en banc news, the Fifth Circuit issued a "published order" that, among other things, stayed a pair of district court judgments concerning whether denial of a bond hearing in certain deportation cases violates due process. As we reported last week, the merits of the appeals are pending with the en banc court.
25. And in further en banc news, the Tenth Circuit will not reconsider a decision on the applicability of the McDonnell Douglas burden shifting standard in certain Title VII cases. Four judges would have granted review.

New cert petition! A Massachusetts regulation forces parents to choose between sending their children to private school and receiving special education services that state law guarantees. The First Circuit said this was just fine because the "unconstitutional conditions" doctrine is merely a First Amendment thing—it doesn't apply to the long-recognized right to send one's child to a private school. Five other courts: oh really? Petition for cert: can you settle whether one of the oldest constitutional principles applies to one of the oldest constitutional rights?

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From Gouldy v. Chiasson, decided Wednesday by the Florida Court of Appeal (Judge Robert Gross, joined by Judges Melanie May and Spencer Levine):

This appeal arises from a frivolous underlying lawsuit Gouldy brought against Chiasson, an attorney, in connection with Chiasson's actions in representing appellees Amanda Munyan and Michael Peak in a related probate matter involving Gouldy.

We affirm the appeal in all respects and issue a separate order to show cause as to why Gouldy should not be barred from further pro se filings in this court. Gouldy's excessively long pro se brief contains frivolous arguments, misrepresentations of the record, a phantom case, and fake quotes from actual cases….

This case demonstrates a growing problem in Florida's appellate courts. The recent change in jurisdiction has given intermediate appellate courts jurisdiction to hear appeals from county court cases. The result has been that the amount of pro se appeals has significantly increased. Initially, the appellate courts were able to expeditiously handle the county court appeals.

Recently, however, it appears that many pro se litigants, in both county and circuit courts, are using artificial intelligence platforms to generate appellate briefs and motions. While the prose in these filings is generally readable, many AI-generated submissions contain phantom authority, misstatements of the record, and fabricated quotations.

Pro se litigants are not governed by the ethical rules with which licensed attorneys must comply. Because a principled appellate court must examine the issues raised by the parties, digging into AI-generated filings consumes valuable time that could be better spent on other cases.

We have observed: "The submission of fictitious or fabricated case law—whether the product of carelessness, misunderstanding, or reliance on generative artificial-intelligence tools—is sanctionable."

Gouldy's arguments in this appeal are either unpreserved, inadequately briefed, or wholly meritless. She raised fifteen issues, some with sub-issues.

To the extent any of her issues may contain a shred of arguable merit (e.g., the unpreserved apportionment argument), they are swamped by the sea of frivolous arguments that dominate her initial brief. Her initial brief cites a nonexistent case, misrepresents the record, fabricates multiple quotations from actual legal decisions, and otherwise relies upon cases that do not support the propositions for which they are cited. Gouldy has previously been warned twice against frivolous filings.

In addition to affirming this appeal in its entirety, by a separate order we are issuing an order to show cause as to why Gouldy should not be barred from further pro se filings in this court. See Friend v. Serpa (Fla. App. 2025) (explaining that this court has the authority to sanction a litigant for reliance on "phantom authority" in a brief); Clerk of Ct. & Comptroller for 13th Jud. Cir., Hillsborough Cnty. v. Rangel (Fla. App. 2025) (concluding that sanctions were appropriate where a brief included "multiple misstatements and misquotes" of case law). A brief that blatantly and repeatedly includes fabricated quotations from Florida case law meets the standard of a frivolous or bad faith filing, which authorizes sanctions under Florida Rule of Appellate Procedure 9.140(a).

The post Court Considering Whether Litigant Should Be Barred from Further Self-Represented Filings, Because of Fabricated Citations appeared first on Reason.com.

From Davis v. Surefire Hospitality Group, LP, decided Wednesday by Judge Marilyn Horan (W.D. Pa.):

Plaintiff has identified herself as Kimberly Davis in all filings in this case, while Defendant argues that Plaintiff's legal name is Matthew Grinage. As such, Defendant argues that Plaintiff does not comply with Federal Rule of Civil Procedure 10(a). Defendant provides documentation, including her application for employment with Defendant's restaurant, where she used her legal name, Matthew Grinage. The parties do not dispute that Plaintiff has not yet completed a formal legal name change process.

In her brief, Plaintiff argues generic allegations that the use of her legal name causes her "distress, mental anguish, and harm." Plaintiff argues that, if she does not use her chosen name, she will suffer serious and lasting effects to her mental health.

Rule 10 states that the "title of the complaint must name all parties." The core intent of Rule 10(a) is to assure public access, transparency, and accountability in judicial proceedings. Following historical practices of publicness, proper access to litigants' names is important. Rule 10, along with Rule 17, reinforces that court proceedings must remain open and accessible to the public, demands clarity in how parties are identified and ensures the public record accurately reflects the identity of who is before the court and why.

In "exceptional cases," courts have previously allowed the use of a pseudonym…. [But] the Court finds that Plaintiff has not satisfied the requisite factors to proceed by pseudonym, including use of her chosen, rather than her legal, name, in this case. Disclosure of Plaintiff's legal name would not cause extraordinary harm or reveal her transgender status in a way that creates genuine danger, because, as demonstrated by Defendant's brief, Plaintiff has regularly used her legal name, including in her job application for employment with the Defendants.

Courts have consistently grounded pseudonym analysis in fears of severe harm. Plaintiff has not pointed to any specific instance within her community, workplace, or the public where use of her legal name has exposed her to danger, harassment, or violence.

The distress, associated with use of a legal name that differs from one's chosen name, is more properly characterized as embarrassment or discomfort, which the Third Circuit has found to be insufficient to meet the standard. Without particularized allegations, Plaintiff's request reflects a personal preference, rather than a reasonable fear or severe harm….

[A]s shown by the Defense exhibits, Plaintiff's legal name has been publicly used many times. Because Plaintiff's identity has not been confidential in the past, there is no basis to permit her use of her chosen name in the present filings….

While the Court is sympathetic to Plaintiff's preference to use her chosen name rather than her legal name, such preference does not supersede the interest of the public in knowing the true identity of litigants in cases such as this…. [And] the Plaintiff's identity, background, and specific circumstances are central to the claims at issue. The public's interest in knowing the identity of who is making claims is not diminished simply because Plaintiff prefers to use a different name….

Plaintiff's legal name remains "Matthew Grinage". It has not been legally changed to "Kimberly Davis." Pennsylvania law provides a statutory mechanism to obtain a legal name change. Had Plaintiff accessed the appropriate and available legal process to obtain a legal name change, she would be entitled to use that legal name in these proceedings. Such a change, effectuated through court filings and official publications, provides public notice of the legal change of name. However, having not done so, Plaintiff must proceed under her legal name of Matthew Grinage….

Emily E. Mahler and Jennifer Lynn Deflitch (Margolis Edelstein) represent defendant.

The post "Plaintiff Argues That, If She Does Not Use Her Chosen Name, She Will Suffer Serious and Lasting Effects to Her Mental Health" appeared first on Reason.com.

From yesterday's Report and Recommendation by Magistrate Judge Jeff Armistead in Doe v. Portland Ass'n of Teachers, Doe's allegations:

Doe was born in Israel and takes his Jewish religious faith and ethnic heritage seriously. For Doe, the State of Israel is essential and integral to his devout religious faith. Although Doe immigrated to the United States, he maintains close ties to Israel and his family there. In the 2023-24 school year, Doe worked for PPS [Portland Public Schools] as a high school math teacher.

When he started working for PPS, he chose not to become a dues-paying member of PAT [Portland Association of Teachers], exercising his First Amendment right not to support union political speech and public sector collective bargaining. Nevertheless, because Doe is a PPS teacher, PAT is his exclusive representative by way of Oregon's Public Employee Collective Bargaining Act (PECBA) and the collective bargaining agreement (CBA) PAT has with PPS….

Curricula. Doe alleges that PAT collaborates with Oregon Educators for Palestine (OEP) in its publications, including by co-publishing a guide called "Teach Palestine!" The guide references resources for teaching about Palestine, "encourages teachers to use their classroom to teach anti-Isreal views[,] and includes detailed curricula recommendations for pre-K through high school." Among the recommended resources in the "Teach Palestine!" guide is "Teaching While Muslim," which includes the statement "75 years ago, a lot of decision makers around the world decided to take away Palestinian land to make a country called Israel. Israel would be a country where rules were mostly fair for Jewish people with White skin" and encouragement to make signs that include the slogan "Free Palestine."

The "Teach Palestine!" resource guide also includes "Let's Go to Palestine." That lesson—directed at elementary school—includes the statement "Palestine is currently under a brutal occupation by Israel. We pray for a truly free Palestine so that the Palestinians can prosper and we can all visit freely." Also recommended in the guide is "Handala's Return," which includes the statement: "A group of bullies called Zionists wanted our land so they stole it by force and hurt many people." The "Know Your Rights!" guide, also co-published by PAT and OEP, includes references to CBA provisions that protect teachers in teaching what are, according to Doe, anti-Israel views.

Displays. Doe alleges that, with PAT's encouragement, teachers at Doe's school wore clothing that included pro-Palestine messages, such as "Free Palestine," and "From the River to the Sea." School administration also allowed posting of Palestinian flags, print-out maps of Palestine that eliminate Israel, and other symbols and slogans throughout the school. The displayed flags and other symbols were in common spaces such as hallways, the library, as well as shared classrooms. In Doe's view, the "placement was intentional so as to appear to be an expression of the community and school rather than any individual."

Prayer. A teacher "led an on-campus morning meeting that he designated as a 'prayer circle' to support Palestine."

Organizing and Political Activities. PAT collaborates with OEP in its publications, including by co-publishing the "Know Your Rights!" guide—a document "developed in response to the censorship, discrimination, and harassment" that PPS staff experienced when teaching or supporting pro-Palestine views. PAT's social media accounts follow OEP, which organizes events and speech activities in support of Palestine and against Israel and which is visible to the public as well as members of PAT. OEP used social media to promote May 15 as "Nakba Day," for instance. It stated, "This Nakba Day, we call on educators across Oregon to wear your kufiya [sic], pins, and "From the River to the Sea, Palestine Will Be Free" shirt to school or work!" On its own social media channels, PAT announced a "students for peace" walkout on March 15, 2024, with a rally at PAT headquarters that included anti-Israel expression.

Doe also alleges that PAT endorses candidates who are vocally anti-Israel and pro-Palestine, including then-candidates Raschelle Chase-Miller and Jorge Sanchez Bautista, both of whom have used social media to promote anti-Israel messages. On May 28, 2024, PAT held informational sessions for teachers to "[l]earn about your rights to teach and advocate for Palestine within Portland Public Schools" at PAT Hall.

PAT Member Conduct. PAT members and representatives allegedly "took coordinated, politically charged actions" while knowing or disregarding the effect they would have on Doe, including posting on social media that staff should wear pro-Palestinian clothing and should post pro-Palestinian messages through the school. In March 2024, Doe "was physically intimidated by a colleague who physically blocked him from entering the copy room to use the copy machine." The colleague was "vocal about her anti-Israel views." Doe also alleges that other PAT members spread rumors about Doe and falsely blamed and accused him of various things….

Doe also takes issue with PPS, alleging that it discriminated against him and violated his First Amendment rights. Against PPS, Doe alleges the following:

• "[t]he school's policy is that every poster or expressive item displayed in the school's common areas, such as a hallway, has to receive approval from administration. Thus, any display in these areas was with the explicit or implicit permission of the school administration."
• "School administration allowed posting of Palestinian flags, print-out maps of Palestine that eliminate Israel, and other symbols and slogans throughout the school."
• "The displayed flags and other symbols were in common spaces such as hallways, the library, as well as shared classrooms. The placement was intentional so as to appear to be an expression of the community and school rather than any individual staff person."
• Although Doe brought his concerns to PPS, his school's administration refused to remove pro-Palestine symbols.
• "When he asked school administrators if he could display a flag of Israel or symbols supporting Israel's right to exist, school administrators denied Plaintiff's request telling him that an Israeli flag or related symbols would be too disruptive."
• "Because it only allowed pro-Palestinian flags, symbols, and messages, the school failed to maintain any kind of viewpoint neutrality on this issue."

Doe asserts that PPS created a hostile work environment in its religious discrimination, primarily by making Doe's school "a forum for one-sided, anti-Israel rhetoric." As a result of that hostile work environment, Doe experienced a "severe recurrence" of his post-traumatic stress disorder (PTSD) which forced him to take a leave of absence and undergo medical treatment during the summer of 2024.

Doe alleges that PPS's discriminatory conduct continues because it has failed to resolve or respond to his complaints, failed to take measures to curb the hostile work environment, and subjected him to an investigation based on false accusations. Although PPS transferred Doe to another school for the 2024-25 school year, Doe asserts that he continues to face hostility because of PPS's failure "hold individuals to account," which means that he cannot attend district-wide events because he might encounter those colleagues there.

Doe also contends that PPS's discrimination is ongoing because, as a result of PPS's "refusal to clarify the record," he continues to be "blamed for incidents that did not occur." For instance, in May 2025, Doe had to correct one of his new colleagues when they asked him "whether it was true that he was suspended for removing Palestinian flags from all the classrooms." …

The report recommended rejecting Doe's claims "that PAT's exclusive representation violated his First Amendment right to free association by forcing him to associate with expression with which he disagrees, and which betrays his deeply held religious and moral beliefs":

The collective bargaining system [upheld in Minn. State Bd. for Comm. Colleges v. Knight (1984)] is no different than PECBA in any way that matters to Doe's constitutional challenges. Doe, who is not a member of PAT and does not have to pay PAT membership dues, has not had his associational rights impaired. And Knight extends, as this court sees it, to First Amendment rights generally. Knight ("The state has in no way restrained appellees' freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative. Nor has the state attempted to suppress any ideas."). That Doe specifically challenges his right to freely exercise his religion is of no moment in this context. Like the freedom to associate and freedom to speak, rights that are unburdened by exclusive representation, so too is Doe's freedom to practice his religion—PAT's exclusive representation in no way "forces" Doe to "tacitly approve" PAT's beliefs.

The report also recommended rejecting Doe's claim that PPS unconstitutionally discriminated against his viewpoint:

Does allege in Claim 3 that PPS allows expression of pro-Palestine, anti-Israel views but disallowed his request to promote pro-Israel views, and that by doing so (the One View Conduct), PPS applied its rules on speech and expressive activity in a viewpoint-based manner….

"When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says." In Downs v. Los Angeles Unified Sch. Dist. (9th Cir. 2000), the Ninth Circuit held that materials posted on school bulletin boards constituted government speech because only school employees could access the bulletin boards, the bulletin boards were the property of the school, and the school principal oversaw (and thus implicitly approved) the posted materials. That implicit approval was equivalent to the school itself speaking, and when the school principal removed a competing bulletin board put up by a teacher with opposing views, that "explicit rejection" was equivalent to the school "choosing not to speak."

Doe alleges that it is PPS's policy "that every poster or expressive item displayed in the school's common areas, such as a hallway, has to receive approval from administration" and thus any displays in the school's common areas required PPS's "explicit or implicit permission." Given that Doe alleges that the One View Conduct is approved by PPS, the viewpoint challenged by Doe is attributable to PPS….

The report likewise recommended rejecting Doe's claim that PPS's actions unconstitutionally established religion:

[T]he Curricula and Display allegations are not a violation of the Establishment Clause because they can be regarded as geopolitical or political expressions that happen to align or harmonize with religious beliefs. That is, a policy or conduct does not violate the Establishment Clause "merely because it 'happens to coincide or harmonize with the tenets of some or all religions.'" … Even for the resource guide "Teaching While Muslim," which Doe alleges is sectarian, he fails to allege specifically what content in the guide advanced the Muslim faith rather than a political viewpoint that can be shared by Muslims and non-Muslims alike.

As for the Prayer allegation, its critical deficiency is that it fails to satisfy Iqbal pleading standards. The allegation merely states that a "teacher led an on-campus morning meeting that he designated as a 'prayer-circle' to support Palestine." That cursory allegation omits any facts that would allow the court to conclude whether the "meeting" or "prayer-circle" was an instance of the unnamed teacher crossing the line from "protected private expression" to "impermissible government coercion." Put differently, prayer is not categorically prohibited in schools because the Supreme Court has "long recognized … that secondary school students are mature enough to understand that a school does not endorse, let alone coerce them to participate in, speech that it merely permits on a nondiscriminatory basis."

The report recommended rejecting Doe's hostile work environment harassment claim against PPS, partly because of the statute of limitations, but partly for broader reasons:

Doe fails to plausibly allege that PPS's conduct was "sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment." … Although the court does not doubt Doe's subjective perception that his workplace was hostile and conflicted with his religious beliefs and identity, the occurrences alleged by him do not rise to the baseline of pervasiveness and severity that the Ninth Circuit has set….

First, PPS's alleged conduct is part of a contentious geopolitical debate in which it is not settled whether the views Doe takes issue with are antisemitic or, rather, protests against the actions of the Israeli government toward Palestinians. To adopt Doe's argument that the environment at his school was objectively offensive enough to alter his work conditions is to conflate Doe's subjective belief with the requirement that the work environment was objectively hostile…..

Second, Doe does not allege, or plausibly allege, that the conduct he finds offensive was directed at him. Significant [in past precedents] was that much of the alleged conduct was not directed at the plaintiffs…. Offensive comments purposely directed at an employee are by degrees more severe than comments overheard first-hand or second-hand, or in this case expressions concerning a geopolitical dispute….

And the report recommended rejecting Doe's discrimination claim against PAT, again largely for statute of limitations reasons, but also because of this:

[Doe] asserts that, in the spring of 2025, PAT publicly endorsed two school board candidates, on social media and through a meet-and-greet, who are "vocally anti-Israel and pro-Palestine." PAT responds that imposing civil liability for a public endorsement would violate its First Amendment rights. The court agrees. See Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) ("Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment.").

The endorsement and social media posts were not directed at Doe, nor does Doe allege that he was required to attend the meet-and-greet. In other words, PAT's endorsement sought to "disseminate a message to the general public," rather than "intrude upon the targeted [listener] … in an especially offensive way." See also Rodriguez (holding that "a college professor's expression on a matter of public concern, directed to the college community" could not "constitute unlawful harassment" where its "offensive quality was based entirely on [its] meaning, and not on any conduct or implicitly threat of conduct that [it] contained")…. Doe cannot rely on PAT's endorsements to allege an ongoing hostile work environment and timely Title VII violation.

I hope to put up a post soon on the Magistrate Judge's decision to allow Doe to proceed under a pseudonym.

Misha Isaak, Megan S. Bradford, and Dominik K. Mackinnon (Stoel Rives LLP) represent PPS and related defendants. Scott A. Kronland and Matthew J. Murray (Altshuler Berzon LLP) and Karen O'Kasey (Hart Wagner LLP) represent PAT.

The post Jewish Teacher Sued Portland Public Schools + Union for Discrimination Over Colleagues' Anti-Israel Speech appeared first on Reason.com.

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Today, the Trump Administration announced massive new tariffs, supposedly authorized by Section 301 of the Trade Act of 1974:

The Trump administration on Thursday finalized new double-digit tariffs on dozens of U.S. trading partners as it seeks to reconstitute sweeping duties struck down by the Supreme Court in February.

The new duties, which range from 10 to 12.5 percent, follow a five-month investigation into trading partners' efforts to root out products made with forced labor from their supply chains and are set to take effect just as a temporary global 10 percent tariff expires.

Starting Friday, 17 trading partners — including Canada, the European Union, Indonesia, the United Kingdom and Mexico — will face a 10 percent duty, along with another 10 countries that agreed to address forced labor through signed trade agreements with the U.S.

Another 43 other countries, including Japan, China, South Korea and Australia, will face a 12.5 percent tariff rate….

The Section 301 tariffs may be meant to replace temporary Section 122 tariffs, which expire today, and which were rightly invalidated by the US Court of International Trade in May (though appellate litigation continues, and Trump may yet hope to use Section 122 again). The new tariffs will predictably raise prices for consumers, reduce economic growth, inflict grave harm on the US economy, and further poison our relationships with allies and trading partners.

As I have previously explained, the planned Section 301 tariffs are illegal for some of the same reasons as the IEEPA tariffs invalidated by the Supreme Court in February, in a case I helped litigate. Georgetown University scholar Peter Harrell outlined some additional reasons why the Section 301 tariffs are illegal, in a guest post here at this site. Unlike IEEPA, Section 301 does authorize some tariffs. But it does not permit a massive power grab like this.

In a Dispatch article published today, my Cato Institute colleague Scott Lincicome - an expert on trade policy - explains in detail why the forced labor "investigations" supposedly justifying the Section 301 tariffs are a sham, and a pretext for a massive presidential power grab. As he notes, the conclusion of the "investigations" was clearly predetermined in advance, the tariffs imposed have no real connection to any genuine forced labor issues, and many of the countries subject to the massive new tariffs actually have tighter restrictions on goods produced by forced labor than the US itself does. He concludes that, if courts uphold these tariffs, the president would have the kind of unlimited tariff authority the Supreme Court denied him in the IEEPA case:

If the courts do rubber-stamp these tariffs, their problems will likely extend well beyond just this sham case. Section 301 could become a way for USTR to tariff any country, at any rate, and for any reason and duration, as long as it checks the law's minor procedural boxes. The actual merits of the case, the quality of the agency's findings, or its efforts to consider public input won't really matter. Just say a country doesn't adequately do something you say is harmful and then apply blanket tariffs after meaningless hearings and comments. Voila.

This is precisely the open-ended tariff power grab the courts checked with their IEEPA rulings, just with a little more procedural window-dressing. In such a case, Section 301 would be a broad tariff generator instead of the targeted tool Congress thought it designed, and it'll surely be used by Trump or any future president who wants to tariff trading partners over carbon emissions, labor standards, AI regulation, or anything else. Republicans cheering the forced labor tariffs today should consider how they'll feel when a Democrat holds the tariff pen.

As explained in my and Peter Harrell's earlier posts on the Section 301 tariffs, Trump's policy violates the requirements of Section 301 itself, and also runs afoul of the major questions doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." At the very least, Section 301 does not clearly authorize the president to start a massive trade war against almost all our major trading partners on the basis of a sham investigation and dubious pretexts.

If, somehow, Section 301 does authorize this action, it would violate the constitutional nondelegation doctrine, which limits delegation of legislative power to the executive. Tariffs are a specifically enumerated congressional power. While the Supreme Court's nondelegation precedent is far from completely clear, last year's decision in FCC v. Consumers' Research held that delegations of the power to impose taxes and other financial levies must have a clear "floor" and "ceiling" and that "[t]he guidance needed is greater when an agency action will affect the entire national economy than when it addresses a narrow, technical issue" [quotation omitted]. There is no meaningful floor or ceiling under the administration's approach to Section 301. And the power claimed is clearly one that massively affects the "entire national economy."

In the IEEPA case, the Supreme Court emphasized that "the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Chief Justice Roberts went on to note that, while some statutes do grant the president tariff authority (among which he specifically cited Section 301), "[w]hen Congress has delegated its tariff powers, it has done so… subject to strict limits."

Trump's power grab today respects no such limits. I hope and expect it will be challenged in court. And when that happens, courts should strike it down, just like they did with the IEEPA  and Section 122 tariffs.

The post Trump Imposes Massively Harmful and Illegal Section 301 Tariffs appeared first on Reason.com.

Some legal and political commentators claim that the Supreme Court has bent over backwards to appease or affirm the Trump Administration. In recent remarks before the Ninth Circuit Judicial Conference, as reported by Politico, Justice Elena Kagan rejected this common narrative.

From Politico:

"I don't see this as a court that is just like, 'We're just going to rubber stamp what the current administration does.' You know, quite the opposite," Kagan said to a judicial conference here Thursday. "I think that that is a bad rap." . . .

Kagan, a liberal justice and Obama appointee, said the 6-3 decision scuttling Trump's tariffs was extraordinary.

"Tariffs is probably the key policy issue for this president. I mean, something he campaigned on, he ran on, he cared an enormous amount about," she said. "I don't think that there are all that many decisions in the recent times, where a court strikes down such an important policy to a a sitting president."

That the Court is conservative--and reaches conservative decisions--is not evidence that it is under President Trump's sway.

"You just have to deal with the fact that there's a conservative court doing things that conservative jurists have long thought it appropriate to do, and I can really dislike that. But it has nothing to do, I think, with becoming the arm of this current administration," she said.

Kagan also said that the justices were unaffected by President Trump's decision to attend oral argument in the birthright citizenship case, another case of extreme importance to Trump in which the Court rejected his position, and even dissenting justices raised questions about the breadth of the Trump Administration's position.

"It was sort of like….from the court's point of view, a non-event," Kagan said in her first public remarks on the unusual spectacle. "Honestly, the vibes in the courtroom were the vibes in the courtroom on any other day." . . .

Kagan also noted that Trump left about halfway through the two-hour session. "It was a long argument. You really did kind of think he probably had other things to do," she said.

"So, I don't know. I think he probably won't come back," she added, prompting laughter from the audience.

The post Justice Kagan Rejects Charge that Supreme Court Is "Rubber Stamp" for Trump Administration appeared first on Reason.com.

[Note: See follow-up post here.]

In Loper Bright Enterprises v. Raimando, the Supreme Court overturned Chevron U.S.A. v. NRDC's holding that federal courts should defer to reasonable agency interpretations of ambiguous statutory provisions. In Loper Bright, the Court concluded that Chevron deference was incompatible with the Administrative Procedure Act. As Chief Jsutice Roberts explained, Section 706 of the APA  provides "'the reviewing court'—not the agency whose action it reviews—is to 'decide all relevant questions of law' and 'interpret . . . statutory provisions.'"

The Chevron opinion made no effort to reconcile its holding with the language of the APA. Indeed, the Chevron decision did not mention the APA at all. But perhaps there was a good reason for that.

In a footnote to his dissent in Hospital Menonita de Guayama v. NLRB--a case in which the D.C. Circuit was instructed by the Supreme Court to reconsider its prior decision deferring to an agency interpretation under Chevron--Judge Ray Randolph addresses this "error" in Loper Bright.

There is an error in the Supreme Court's analysis in Loper Bright. Much of the Court's reasoning (and a part of Justice Gorsuch's concurrence) is devoted to criticizing the Chevron opinion for ignoring section 706 of the Administrative Procedure Act, 5 U.S.C. § 706. See, e.g., 603 U.S. at 397-400, 411-12; id. at 428 (Gorsuch, J., concurring). The Court's critique is unfounded. It is unfounded because section 706 of the APA did not apply to judicial review of the EPA rule at issue in Chevron. Section 706 did not apply because Chevron was not an APA review case. The Clean Air Act superseded the APA: "The provisions of section 553 through 557 and section 706 of Title 5 [the APA] shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies." 42 U.S.C. § 7607(d)(1). The problem the Court identified in Loper Bright was not with Chevron itself, but with courts, including the Supreme Court, indiscriminately adopting the Chevron formula in later cases in which section 706 of the APA did apply.

UPDATE: Others contest Judge Randolph's view. See this follow-up post.

The post "There Is an Error in the Supreme Court's Analysis in <i>Loper Bright</i>." appeared first on Reason.com.

From Pennsylvania appellate court in Adewale v. Adewale, decided by Judge Correale Stevens and joined by Judge Anne Lazarus and Jack Panella on June 22, but just posted on Westlaw in the last couple of days:

Wife claims the trial court erred in determining that the parties' marriage was void ab initio based on its finding that Wife was married to another individual at the time of the parties' purported marriage. {Although we affirm the trial court's order finding the parties' marriage to be void, we refer to the parties as "Husband" and "Wife" for ease of review.} …

The parties were married on April 21, 2011 in Lagos, Nigeria in a ceremony under Nigerian statutory law. {As discussed infra, Nigeria has a plural legal system where different legal systems (statutory law, customary law, and Islamic law) apply to different communities in Nigeria. [Similar systems exist in other countries, including, for instance, Israel. -EV]}

As Wife had become a U.S. citizen after receiving a Diversity Visa through the lottery program in 1999, she filed for Husband's entry into the U.S. as her spouse in 2012. In April 2013, Husband joined Wife in the U.S.; both of the parties are now dual citizens of Nigeria and the U.S….

During the divorce process, "Husband began to question the validity of the parties' marriage as he discovered that Wife may have been married to another person at the time of the parties' marriage," and the trial court explored that:

The trial court recognized that the law of the state in which a marriage is celebrated governs the validity of the marriage. "[I]f a marriage is invalid under the laws of the state wherein it was celebrated it will not be recognized elsewhere, regardless of the laws of the present domiciliary state or of the forum." … "[A] marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state[.]"

The appellate court cited various Pennsylvania authorities on this, which are consistent with how other courts handle the matter; note also that "state" here refers to foreign countries as well as U.S. states. The trial court took extensive evidence related to the subject; here are some excerpts (though the facts are considerably more complex):

Husband claimed the parties' marriage should be invalidated as Wife was the spouse of William Lasisi ("Lasisi") when Husband and Wife married in 2011. Lasisi, who testified on Husband's behalf, confirmed that he had married Wife in 2001 in Lagos, Nigeria, and still believed Wife was his spouse. Lasisi presented a wedding certificate for the 2001 ceremony as well as multiple photographs of Wife and Lasisi participating in various wedding ceremony rituals…. Dr. Olubukoli Adewemi Olugasa ("Dr. Olugasa"), Husband's expert in Nigerian marital law, opined that Wife and Husband's marriage was invalid under Nigerian statutory law as at the time of their purported marriage, Wife was still married to Lasisi by customary marriage not yet dissolved….

Wife offered the testimony of Judge Surajudeen Onigbanjo ("Judge Onigbanjo"), who had served on the State High Court of Lagos, Nigeria, as well as the testimony of Judge Iris Abdullahi Haroon ("Judge Haroon"), retired Grand Kadi of the Sharia Court of Appeal in Kwara State, who both asserted that they did not believe that that Wife's marriage to Lasisi was valid as Husband failed to present evidence that a dowry or sadaq was paid. Wife claimed that she had never married Lasisi, as their relationship "soured" for various reasons….

Further, Wife offered an alternative argument claiming that even if the trial court found she had married Lasisi, she and Lasisi had divorced in 2006 through a family meeting in which Lasisi told Wife "I divorce you" three times. Judge Haroon, indicated that this verbal declaration, referred to as triple talaq, is a recognized procedure for a husband to obtain a divorce in an Islamic marriage.

On January 16, 2025, the trial court entered orders on the divorce and support dockets declaring that the parties' marriage was void ab initio, terminating Husband's alimony pendente lite obligations, and setting Husband's support arrears balance to zero. The trial court set forth its rationale which was based on several factual findings.

First, the trial court found that Wife married Lasisi on September 1, 2001 pursuant to Nigerian traditional/customary law as well as Islamic law. Second, the trial court found that Wife had not shown that her marriage to Lasisi was dissolved at the time of Husband and Wife's marriage in 2011…. Lastly, the trial court found that as Wife was married to Lasisi, she was barred from entering a statutory marriage to Husband in 2011….

The trial court set forth the following background on the types of marriage in Nigeria based on expert testimony presented at the hearings in this case:

There are three types of marriage in Nigeria: (1) statutory or Court marriages under the Marriage Act of Nigeria (hereinafter the "Marriage Act"), (2) marriage by traditional law and custom, and (3) Islamic marriage. A man and woman may be married under any one of these methods, or multiple at once. However, a statutory marriage under the Marriage Act of Nigeria is invalid "where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had."

Under Nigerian traditional law and custom, polygamy is legal, meaning it is possible for a man to marry more than one woman. Islamic marriages allow for a man to take up to four wives at a time. Women in Nigeria are not allowed to take more than one husband; this practice is called polyandry, which was banned in the 1960s….

And the appellate court affirmed the trial court's decision:

The trial court properly exercised its discretion to apply the Nigerian Marriage Act, which is consistent with Pennsylvania law that provides that a marriage will be deemed void where either party at the time of marriage had an existing spouse and the former marriage had not been dissolved by divorce, annulment, or a decree of presumed death of the former spouse. Given that it is undisputed that Husband and Wife were validly married in a ceremony under Nigerian statutory law, the parties' marriage would be void if Wife was married to another individual at the time of her marriage to Husband in 2011…

We agree with the trial court's finding that Husband met his heavy burden of proving that Wife married Lasisi in 2001 under both Nigerian traditional law and Islamic law and rejecting Wife's claim that she merely participated in an "introduction ceremony." …

[And t]he trial court [also] found that Wife's marriage to Lasisi had not been dissolved by [either] traditional/customary law nor Islamic law…. With respect to Wife's Islamic marriage to Lasisi, the trial court declined to find a valid divorce occurred in 2006 when Lasisi made a verbal declaration repeating "I divorce you" three times to Wife in a meeting in Lagos, Nigeria where Wife and several of her family members were present. Based on testimony from Wife's expert witness, Dr. Achebe, the trial court found this unilateral method of divorce, triple talaq, recognized in Sharia law, could "only be valid if uttered by a Muslim husband." Given that Lasisi did not identify as Muslim as he had converted to Christianity in 1980, the trial court found that Lasisi "could not divorce Wife in this manner."

And the appellate court had this to say about the trial court's reliance on Sharia law related to the triple talaq divorce:

Although Wife argues that the trial court erred in relying on Dr. Achebe's representation that triple talaq can only be implemented by an Islamic man, she has not presented this Court with any applicable authority to question this legal principle, leaving this Court unable to assess the merits of her claim. Wife's expert witnesses did not testify at any point as to this distinction. As Wife has not supported her argument with any applicable authority, we find this claim to be waived for lack of development.

It also added, in a footnote:

Further, we will not disturb the trial court's finding that Wife had not shown a valid divorce from her marriage to Lasisi as the trial court was not required to extend comity to recognize talaq as a valid, unilateral method for divorce pursuant to Sharia law. As noted above, comity gives a trial court discretion as to whether to give "effect to laws and judicial decisions of another state out of deference and mutual respect, rather than out of duty."

Nigeria has a plural legal system that combines statutory law (which is heavily influenced through English law), indigenous customary law, and Islamic religious law (Sharia). Wife's own expert witnesses admitted that while several of Nigeria's northern states have implemented Islamic law, it has not been implemented in all of Nigeria or in Lagos, a southwestern state of Nigeria. Wife's expert witness, Judge Haroon, served as a member of the Sharia Court in Kwara state, where Islamic law has been implemented; Judge Haroon admitted admitted that Sharia law does not govern the state of Lagos. As such, the trial court would not be engaging in comity with the applicable secular laws of Lagos, Nigeria, had it chosen to recognize talaq through Sharia law.

Further, courts of other U.S. states have declined to recognize talaq as a valid unilateral method of divorce on the grounds that it violates the right to due process, equal protection, and fundamental fairness. See, e.g., Aleem v. Aleem (Md. 2008) (declining to extend comity to talaq divorce under Islamic religious law and secular Pakistani law as recognition of talaq would violate the due process, equal protection, and public policy); Seth v. Seth (Tex. App. 1985) (holding that recognition of talaq would be contrary to justice).

UPDATE 7/23/26, 10:58 pm: The decision was just posted to Westlaw yesterday, so I read the date as July 22 and said it was decided yesterday. But it turns out it was posted on June 22, so I've corrected the opening line accordingly. Many thanks to the invaluable Howard Bashman (How Appealing) for the correction.

The post Sharia Divorce Law in American Courts appeared first on Reason.com.

Petitioner, an immigration detainee who is proceeding pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 and also filed a Motion for Leave to Proceed Under a Pseudonym.

"As a general rule, 'the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity.'" A party's "use of [a] fictitious name[ ] runs afoul of the public's common law right of access to judicial proceedings, and [Fed. R. Civ. P.] 10(a)'s command that the title of every complaint 'include the names of all the parties[.]'"

Nevertheless, the Ninth Circuit has "allowed the use of pseudonyms in exceptional cases where necessary 'to protect a person from harassment, injury, ridicule or personal embarrassment.'" "When a party requests 'Doe' status, the factors to be 'balance[d] … against the general presumption that parties' identities are public information,' are: '(1) the severity of the threatened harm; (2) the reasonableness of the anonymous party's fears; and (3) the anonymous party's vulnerability to such retaliation.'" The party seeking anonymity has the burden of proving it should be allowed to proceed anonymously.

Petitioner seeks to proceed anonymously because he is a convicted sex offender who believes he may face danger in his country of origin—Syria—if removed there. However, the nature of Petitioner's criminal conviction is insufficient by itself to warrant Petitioner's use of a pseudonym in these proceedings. See U.S. v. Stoterau (9th Cir. 2008) ("If the nature of Stoterau's offense alone could qualify him for the use of a pseudonym, there would be no principled basis for denying pseudonymity to any defendant convicted of a similar sex offense. Such a significant broadening of the circumstances in which we have permitted pseudonymity is contrary to our long-established policy of upholding 'the public's common law right of access to judicial proceedings,' and contrary to our requirement that pseudonymity be limited to the 'unusual case.'").

And while "'retaliation from a foreign government is recognized by the Ninth Circuit and other district courts as a sufficient basis to proceed anonymously[,]'" Petitioner's conclusory and unsupported assertion that he may face danger if removed to Syria is insufficient to meet his burden of establishing he should be allowed to proceed anonymously in this action.

The post No Pseudonymity for Sex Offender Immigration Detainee Who Speculates He May Face Harm in Syria if Identified appeared first on Reason.com.

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On July 17, the Third Circuit declared New Jersey's ban on semiautomatic rifles and magazines holding over ten rounds to violate the Second Amendment.  The case is Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (ANJRPC), and the 10 to 5 en banc opinion is authored by Judge Arianna J. Freeman.  This is the first circuit court decision to invalidate an "assault firearm" and magazine ban.

Some members of the court would have waited until the Supreme Court decides Viramontes/Grant (see post here), but cert was not granted on the magazine issue in those cases, plus no party sought delay.  My thought is that another good reason to decide the case is Justice Kavanaugh's statement in the Snope cert denial that further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue."  All of the other circuit decisions have upheld bans.

The common-use test, which derives itself from the historical tradition of the banning of "dangerous and unusual" weapons, is the focus of ANJRPC.  First, "in common use" refers to "common use for lawful purposes at the time of the modern restriction."  Second, "lawful purposes" refers not just to self-defense, but to hunting and other lawful uses including mere possession.  Third, such use excludes a "dangerous and unusual" weapon.

Criticism of the common-use test as "a popularity poll" disregards that the Supreme Court requires this test, and "the popularity of the restricted weapons bears on [the] question" of common use for a lawful purpose.  Moreover, possession – whether keeping or bearing – is protected, not just the active use of pulling a trigger to shoot bullets in self-defense scenarios.

"Bruen's first step is fundamentally a textual inquiry," but the common use inquiry is not located there.  It neither appears in the Second Amendment's text nor is it part of the definition of "Arms," which as Wolford noted includes "any weapon customarily used for offensive or defensive purposes." "'Customarily' distinguishes items that can be used, offensively or defensively, as weapons (e.g., bricks) from weapons normally used for offensive or defensive purposes."  So common use fits into Bruen's step two (the historical tradition step), as a part of "how" a modern regulation burdens the right in comparison with any relevant historical analogue.  Here, as in Heller, the "how" is a "flat ban."  Once the plain text of the Second Amendment is implicated, the burden shifts to the state (here, New Jersey) to demonstrate a historical tradition that would warrant its modern-day law. Thus, in this arms ban case, New Jersey bears the burden to demonstrate that the semiautomatic rifles it bans are "dangerous and unusual" and, by necessity, not in common use.

Moving on to New Jersey's ban on its listings of firearm make and models, the ANJRPC court decides that the record encompasses the same result for all semiautomatic rifles, not just the Colt AR-15.  For that, "we need not precisely define the quantity or qualities that make a weapon in common use for lawful purposes. Regardless of where those lines may be drawn, the many millions of semi-automatic rifles in circulation for lawful purposes are plainly in common use."

Contrary to the argument that rifles are not commonly "used" in self-defense, "even if a weapon is rarely employed in incidents requiring self-defense, it may still be commonly possessed for that lawful purpose or other lawful purposes, such as hunting."  Moreover, "Even if semi-automatic rifles are disproportionately used in some crimes, those may still represent a small fraction of those weapons' overwhelmingly lawful use."  Not to mention that interpersonal violence is "a general societal problem that has persisted since the 18th century," where Bruen's second step is "fairly straightforward."

Of course, the Third Circuit did not really need to engage in the level of analogical reasoning that it did, given that the Supreme Court in Heller had already engaged in the relevant historical spade work to identify the principle that arms that are "dangerous and unusual" can be banned consistent with the Second Amendment.

That's why antebellum and Reconstruction regulations of Bowie knives, blunt weapons, and pistols as potential analogues do not work: "They are too late in time, and none enacted an outright ban on a class of weapons in common use for lawful purposes."  No Founding-era analogue exists for such restrictions, giving little weight to later restrictions.  Third Circuit precedent, Lara v. Comm'r Pa. State Police (2025), holds that 1791 prevails over 1868 as the location of proper analogues.

The ANJRPC court next moves on to the magazine ban.  Magazines are "arms" because they feed ammunition into certain firearms, making them functional.  The label "large capacity magazine" (LCM) "is not objective: what is considered an LCM is statutorily defined."  It used to be 15 rounds, now it is 10 rounds.  "It would defy reason for a label devised by New Jersey's legislature to govern the reach of the Second Amendment's text."  As to the argument that a firearm will still operate with a ten-round magazine, "the text of the Second Amendment does not limit 'Arms' to the minimum equipment necessary to operate a weapon."

In Bruen, the Supreme Court included "instruments that facilitate armed self defense" as part of the plain text definition of "arms." Magazines obviously do so by holding ammunition and allowing the lawful gun owner to discharge a firearm in self-defense and to train for self-defense scenarios without having manually to reload over and over.

The banned magazines easily meet the common-use test.  "But the 24 million AR-15s and similar sports rifles in circulation—firearms that we have determined are in common use for lawful purposes—typically come standard with twenty- or thirty-round magazines. And there are over 100 million 30-round AR-15 magazines in circulation."  (I would suggest there are far more.)

As for analogues, Founding-era gunpowder storage laws miss the mark – they were for fire safety, not crime control.  Nor were concealed carry regulations, which were not outright bans, relevant.

The above resolves the unconstitutionality of New Jersey's ban on all of the listed semiautomatic rifles and on magazines.  However, the court found the record too sparse about the shotguns and pistols defined as "assault firearms," which requires a remand to the district court for further factfinding.

Judge Paul Matey's concurrence minces no words: "Nothing has changed in the decades since the State launched its battle against the Second Amendment and its ongoing defiance of the law."  The terms "LCM" and "assault firearm" have no objective meanings but are "marketing materials recycled into legislation."  Although the opinion of the court doesn't mention features, Judge Matey explains, "There is too much evidence that all of the arms at issue—pistol grips, folding stocks, magazines containing eleven or more rounds, and the semiautomatic shotguns and pistols New Jersey lumped into the definition of 'assault weapons' with no real thought—are and have long been in common use for lawful purposes."

Concurring in part, Judge Peter Phipps stresses that proper historical analogues "have the purpose of regulating people who actually or imminently misuse firearms to harm or menace others."  However, the New Jersey prohibitions are "based on their potential for misuse, however remote, and that is broader than actual or imminent misuse."

Judge Tamika Montgomery-Reeves concurs, but would have held the case pending the Supreme Court's resolution of Viramontes and Grant.  Quoting the laws at issue in those cases, which could resolve ANJRPC, two definitions demonstrate (my observation) the utter irrationality of "assault weapon" bans.  Cook County includes the feature of a rifle "without a stock attached," while Connecticut includes a rifle with a "folding or telescoping stock" attached.  Which of these contradictory features pray tell make the rifle so dangerous?

Judge Jennifer Lee Mascott concurs in part, agreeing with Judge Matey that it is unnecessary to remand the case to the district court for further factfinding.  She warns about misinterpretation of the "dangerous and unusual" concept: "But turning that designation into an antitype risks signaling to assertive State regulators that establishing a Second Amendment basis for regulation can be accomplished simply by labeling a firearm use 'dangerous and unusual' rather than affirmatively demonstrating historical evidence for the regulation as commanded by the Supreme Court."

Judge Cindy Chung concurs in part and dissents in part.  She maintains that "common use" is determined at Bruen's step one and does not include "a type of weapon one would expect to be used for modern warfare; nor does the term embrace weapons most commonly used for criminal ends." Instead, common use includes a weapon "an ordinary person would have at home for purposes like protecting oneself against violent interpersonal confrontation, protecting the home, and hunting."  At step two, Judge Chung writes that "a weapon not commonly worn in public causes a terror to the people."  She opines that a remand is necessary to apply that standard.

Judge Patty Schwartz, joined by three other judges, dissents.  The thrust of her opinion is that "the objective features of AR-15s and LCMs render them disproportionate to 'ordinary self-defense needs' and thus outside the scope of the Second Amendment's protection."  Her opinion fails to articulate what exactly those "objective features" are.  While no government in the world issues it as a standard service weapon, she asserts that the AR-15 is "an unusually dangerous tool used by the military and not an arm in common use by civilians for self-defense."

Judge Cheryl Ann Krause dissents, complaining that the majority disregards "the democratic will of the People of New Jersey" based on "the novel theory that these weapons are 'in common use' because modern-day manufacturers have pumped a sufficient (yet undefined) number of them into nationwide circulation and some (again, undefined) percentage of gunowners assert their subjective intent to use them only for lawful purposes."  Apparently, consumers buy AR-15s because manufacturers make them do so, not because such rifles and magazines are superior to the inferior ones New Jersey foists upon them.  And gunowners can't be trusted when they explain why they purchase them.

Finally, Judge D. Brooks Smith dissents, agreeing with two other dissents and "the persuasive reasoning of Judge Wilkinson" in the Bianchi case from the Fourth Circuit.  That "persuasive reasoning" flouts the Supreme Court's common-use test and exaggerates the power of AR-15s, without regard to the caliber of any specific rifle.

It's been a long time coming.  The New Jersey ban was originally enacted in 1990.  I litigated a pre-Bruen challenge based on vagueness and equal protection, Coalition of New Jersey Sportsmen v. Whitman (D. N.J. 1999), aff'd (3d Cir. 2001) (no reported opinion).  We demonstrated that several "assault firearm" listings like "Avtomat Kalashnikov" (which means a full automatic in Russian) are machine gun names.  And the catchall "substantially identical" firearms alerted the public about like "other stuff like that" would.  I recall one of the judges on the Third Circuit panel asserting that "everyone knows what an assault firearm is, it's a submachinegun with a silencer."

The Third Circuit has now taken Second Amendment rights seriously, and the tables appear to be turning.

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In February, the Environmental Protection Agency finalized a regulation rescinding the so-called "endangerment finding"--the finding that the emission of greenhouse gases from mobile sources cause or contribute to air pollution that can be reasonably anticipated to endanger public health or welfare. As expected, environmental groups and blue states have already filed suit challenging the rescission. Some of the suits raise fanciful arguments, while others advance more traditional administrative law claims. The question is now in the courts.

Rescission of the endangerment finding was one of the Trump Administration's top environmental priorities, but some of us have been skeptical that endangerment repeal does much to advance the administration's deregulatory priorities (let alone a rational climate policy).

Reviewing the EPA's final rule and it justification, I believe my skepticism was justified. As I explain in the summer issue of Regulation, the EPA's move is "a costly, symbolic gesture that will divert administration resources from more meaningful deregulatory initiatives and does nothing to advance a rational climate change policy."

From the article:

The EPA's current position is that under the "best reading" of the CAA, Section 202 "does not authorize the Agency to prescribe emission standards in response to global climate change concerns." I have sympathy for this view, having drafted an amicus brief for the Cato Institute making just this argument. The problem is that the Supreme Court concluded otherwise in Massachusetts v. EPA (2007). The EPA offers other arguments to circumvent this holding, but they are wholly unpersuasive.

Contrary to the EPA's protestations, the Supreme Court in Massachusetts held squarely that the "EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles." Rejecting the George W. Bush administration's arguments that Congress had not authorized the EPA to address climate change, the Court declared it had "little trouble concluding" that Section 202 "authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change." So much for the agency's claim that the statute can be read to preclude EPA regulation "based on global climate change concerns." . . .

It does not matter if the EPA (again) believes the Massachusetts decision was wrong and the CAA was never meant to apply to greenhouse gases. The Court has given the act a definitive interpretation to the contrary, and the Court rarely reconsiders its own prior statutory interpretations. If the Court got a statute wrong, that is a mistake for Congress to fix.

The EPA tries to claim that intervening Supreme Court decisions, such as Loper Bright Enterprises v. Raimondo (2024) and West Virginia v. EPA (2022), call for a new interpretation of the CAA, but those arguments also fall flat. In Massachusetts the Court found that the statutory text was clear and rejected the argument that it should pause before concluding Congress authorized the agency to regulate the most ubiquitous byproduct of modern civilization (what we would now call a "major question"). Were that not enough, in Loper Bright Chief Justice John Roberts, writing the majority opinion, went out of his way to make clear that the Court's decision did not "call into question" statutory interpretations reached in prior cases. Rather, he explained, the holdings of such cases, and the conclusions reached about what statutes require or what agency actions are lawful, "are still subject to statutory stare decisis."

The EPA puts forward some alternative arguments, but I do not find them any more persuasive.

Reading the EPA's rule, one might conclude that the agency understands its legal arguments are weak so long as Massachusetts v. EPA remains good law, and is hoping the Supreme Court will conclude this decision was wrongly decided and reverse it. I doubt this will happen, but would also suggest that the EPA and endangerment-finding-repeal supporters might not like what overturning Massachusetts could unleash..

Even if there are five votes to revisit Massachusetts v. EPA, those cheering endangerment rescission should be careful of what they wish for. Like it or not, it was the Supreme Court's conclusion that greenhouse gases are subject to regulation under the CAA that dictated the outcome in American Electric Power v. Connecticut (2011), in which the Court held that federal common law nuisance suits against fossil fuel emitters are displaced by federal statute. As the Court explained in American Electric Power, existing doctrine requires the displacement of federal common law causes of action where Congress has entered the field by enacting a relevant statute. Should the Massachusetts holding be undone, however, placing greenhouse gases and climate change concerns beyond the scope of the law, there would no longer be any basis to bar such suits from federal court. And were Massachusetts to be undone in this manner, it is possible that federal preemption of state greenhouse gas emission standards—such as those sought by California—would be cast aside as well. Congress may have put an end to CAA waivers for California greenhouse gas emission standards for new motor vehicles through the Congressional Review Act, but if greenhouse gas emissions from motor vehicles are no longer subject to CAA regulation, it is not clear why any such waiver would be required, or why such standards could only be adopted by California—though other statutes may still preclude state standards that operate as de facto fuel efficiency requirements.

I conclude:

The legal risks of rescinding the endangerment finding might be justified if there was no other way to scale back federal regulation of greenhouse gas emissions. Yet that is not the case. The endangerment finding itself is no obstacle to the relaxation or rescission of existing greenhouse gas emission regulations, including those imposed on motor vehicles. The relevant statutory text provides ample basis for ending regulation of such emissions from stationary sources, and there are strong legal arguments having nothing to do with endangerment that the EPA lacks the statutory authority to push automakers toward the production and promotion of electric cars. Such deregulatory moves would be quite straightforward, but they do not have the symbolic appeal of rescinding endangerment.

Administrator Zeldin called the endangerment finding "the holy grail of the climate change religion." It may be more accurate to describe it as the great white whale of the second Trump administration's EPA.

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Members of the Federal Trade Commission are no longer protected from presidential removal without cause. Humphrey's Executor--or whatever was left of it--is dead. Congress may not limit the President's authority to remove principal officers who exercise executive power (save for members of the Federal Reserve, apparently). This is the consequence of Trump v. Slaughter.

The practical effects of Slaughter may not be immediately apparent, or so I suggest in my latest Civitas Outlook column. So-called "independent agencies," such as the Federal Trade Commission, have not been meaningfully independent for some time. For years, most such agencies have aligned their agendas with that of the President. But the Slaughter decision may have some other effects on the operation of such agencies that have been under-appreciated (or so I suggest).  From my column:

Just as legislative leaders have exercised less independence from presidents of their own party, members of independent agencies have divided more clearly and consistently into reliable voting blocs. Here, as elsewhere, the separation of powers has become more the separation of parties. Combined with the increased centralization of power and control by the Chairs of some agencies, as appears to have occurred at the FTC during Lina Kahn's tenure as Chair, the composition of multi-member agencies has become far less important than who holds the Chair position. At the same time, it has become common practice for agency Chairs to step aside when a new President is inaugurated, as Kahn did once Trump began his second term, even though their terms often extend well beyond a four-year presidential term.

There are exceptions here, some of which are important. Slaughter would seem to indicate that the President can remove FEC commissioners at will, but this will not enable a president to control what the FEC does. Removing members of the FEC the President does not like will not ensure the FEC aligns with the President's agenda. But it appears to allow the President to disable the FEC from acting. In the wake of Slaughter, the President removed all remaining members of the Election Assistance Commission, potentially leaving it unable to assist states with election administration or to establish rules governing mail voter registration applications.

Many of the affected boards and commissions also have quorum requirements that prevent them from taking certain actions without enough commissioners or board members in place. Removing members of such agencies may prevent them from acting contrary to the President's wishes, but it could also prevent the agency from acting at all, particularly if the Senate does not cooperate by quickly confirming a President's replacement nominees. Unlike traditional executive-branch agencies, vacancies on multi-member commissions cannot be filled with interim or acting appointments under the Federal Vacancies Reform Act. So while a President may wish to remove members of the National Labor Relations Board (NLRB) deemed too solicitous of unfair labor practice complaints filed by unions, if removing board members leaves the NLRB without a quorum, it could bar the Board from ruling in favor of complaints brought by employers as well, and prevent the revision or rejection of disfavored agency precedent.

You can read the whole thing here.

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From a Report and Recommendations today by Magistrate Judge Jill McCook (E.D. Tenn.) in Ross v. Lambert:

According to the allegations in the Complaint, Plaintiff is a former collegiate track and field champion, 2004 Olympian, and the current Head Coach and Director of Track & Field at the University of Tennessee." In August 2022, Plaintiff hired Defendant "to serve as the track and field Recruiting Coordinator—which was a non-coaching, administrative position." Plaintiff alleges that less than a year later, in May 2023, he "advised [Defendant] that he was being terminated from his position as Recruiting Coordinator at the University of Tennessee." He claims that he "gave [Defendant] the option of 'voluntarily resigning' from his position in lieu of being fired for cause[,]" which Defendant accepted.

Plaintiff contends that on May 30, 2024, Defendant sent the Office of General Counsel at the University of Tennessee ("University") a demand letter ("May 30 Letter"), "threatening to sue the University and [Plaintiff] for 'wrongful termination and discrimination' if he did not receive payment of $150,000 from the University." According to Plaintiff, "Defendant … made a series of patently false and inflammatory allegations against [Plaintiff] in the [May 30] Letter and warned that he would go to the media with his allegations if the University did not settle." Specifically, the Complaint asserts that "[Defendant] made … knowingly false and derogatory statements[,]" including:

1. "Past Misconduct: Duane Ross has a documented history of questionable behavior. He received a two-year suspension from the U.S. Anti-Doping Agency for using performance-enhancing drugs, disqualifying all his results since November 2, 2001. His involvement in the BALCO steroid case further underscores his troubled past."
2. "Family Issues: His son, Randolph Ross Jr., has also been suspended for doping violations. Randolph Ross Jr.'s suspension through June 30, 2025, for whereabouts failures and tampering with an email raises questions about the environment and influence under Duane Ross's watch. Where do you think he learned that from?"
3. "Athlete Violations. Under His Watch: Under Duane Ross's leadership, North Carolina A&T faced multiple suspensions of top athletes for doping violations. Grace Nwokocha was suspended right before the World Championships for doping. Additionally, Ross used an athlete who was not cleared by the NCAA, resulting in the forfeiture of team titles and performances. These incidents, though they occurred before his tenure at Tennessee, are closely tied to him and paint a picture of ongoing integrity issues."
4. "Mr. Ross is not representing your brand appropriately, nor did he follow your procedures or policies, and I'm sure you provided him with all the tools to succeed and comply with your standards. This lack of competence raises serious questions about his ability to lead a program as esteemed as the University of Tennessee. At this point, he has proven to be a liability rather than an asset to the University."

The University rejected Defendant's demand.

Plaintiff claims that "[o]n or about March 3, 2025, less than two weeks before [Plaintiff's] team began competing at the 2025 NCAA Indoor National Championships, Defendant Lambert, under the pseudonym 'G. Fury,' released two songs on Apple Music and Spotify—titled 'Vault Talk' and 'Recruiter to Parent.'" "Both songs[,]" Plaintiff alleges, "contain defamatory lyrics impugning [Plaintiff's] character, including but not limited to allegations of drug use by [Plaintiff] and his athletes." Plaintiff states that Defendant also "published 'Vault Talk' and 'Recruiter to Parent' in a public Facebook group titled[,] The Real Deal Track & Field Group." "In early-to-mid March 2025," Plaintiff avers that "Defendant Lambert a/k/a G. Fury released three additional songs on Apple Music and Spotify." He asserts that one of those songs, "Laws of Attraction," "targeted [Plaintiff] with false and disparaging allegations of scandal and fraud." And later, Defendant sent "Laws of Attraction" to Plaintiff via text message.

"On March 13, 2025, Plaintiff submits that "Defendant … a/k/a G. Fury published another nine-track album titled, 'To C.A.P' on Apple Music and Spotify." Plaintiff claims that "[a] majority of the songs on the album are directed at [Plaintiff] and most, if not all of these songs, contain untruthful, derogatory and offensive statements about [him]" [Id.]. For instance, Plaintiff states that Defendant: "(i) alleges that [Plaintiff] and his son—who is an Olympic gold medalist and famous track and field star in his own right—of using [performance enhancing drugs]; (ii) claims that [Plaintiff] runs a dirty program at Tennessee; and (iii) accuses [Plaintiff] of infidelity." According to Plaintiff, Defendant's "album caught the attention of various social media personalities, who published stories about [Defendant's] music on various mediums."

"At or around this same time," Plaintiff represents that Defendant "began spreading rumors that [Plaintiff]—who is married with three children—had an affair with one of his female assistant coaches and fathered a daughter with that coach." He claims that Defendant, "in an intentional attempt to harass and embarrass [Plaintiff], posted on his Instagram and Facebook accounts multiple AI generated/doctored photographs of [Plaintiff's] three children along with the assistant coach's daughter … but digitally modified the girl's face to make it appear to be [Plaintiff's] face." Later, in June 2025, Plaintiff states that Defendant "released yet another song on Apple Music and Spotify titled 'S.L.A.P.,' which clearly and unmistakenly insinuates that a paternity test is needed to determine if [Plaintiff] fathered the assistant coach's daughter."

Plaintiff contends that Defendant "remained silent over the next several months until resurfacing on November 12, 2025, when he directly texted [Plaintiff] criticizing [his] recent signing of a new track and field recruit." But on December 5, 2025, Plaintiff states that Defendant "dramatically ramped up his malicious campaign of harassment and disparagement against [him]." According to Plaintiff, Defendant:

1. sent a defamatory and wildly inappropriate email to hundreds of individuals in the collegiate track and field community, including members of the University of Tennessee's athletic department as well as members of the athletic departments of various rival schools such as Vanderbilt University, the University of Florida, the University of South Carolina, the University of Alabama, and the University of Texas … The six-page email includes a bizarre fictional script ridiculing [Plaintiff] as well as links to over 50 songs (including each of the defamatory songs detailed above) recorded by [Defendant] and released on Apple Music and Spotify. An overwhelming majority of these songs target [Plaintiff] and are intended to defame, demean, and humiliate him[;]
2. posted a video on Instagram and Facebook of a fake newscast about the BALCO steroid doping scandal from the early 2000s (which [Defendant] has repeatedly tried to link to [Plaintiff]) and its purported connection to the University of Tennessee Track and Field program under [Plaintiff; and]
3. between December 12 and December 25, 2025, Defendant Lambert posted more than 20 videos on Instagram and Facebook attacking [Plaintiff's] character with blatantly false allegations of wrongdoing and/or creating highly offensive and demeaning fake videos using AI.

With respect to the AI generated videos, these include "video clips depicting [Plaintiff] … with Sean 'Diddy' Combs." Plaintiff alleges that Defendant continued making videos targeting him, which included accusations "of infidelity and impregnating (and then firing) his former assistant coach at the University."

Plaintiff contends that "on January 6, 2026, a few days before Tennessee's initial track and field meet of the 2026 season, Defendant … sent [Plaintiff] a text message in which he boasts that his campaign of defamation and cyber-harassment likely prevented [Plaintiff] from signing the top high school track recruit in the country to Tennessee's 2026 recruiting class." Plaintiff states that Defendant included in the text message "audio copies of two newly published songs by [Defendant] a/k/a/ 'G. Fury'— titled '3-years-left' and 'kinda-nice'—both of which defame [Plaintiff] and various athletes in the Tennessee program." According to Plaintiff, "[His] reputation—both professionally and personally—has been greatly damaged as a result of Defendant['s] … improper and wrongful conduct[,] and that [Defendant's] defamatory and offensive social media posts, music, and videos have been disseminated throughout the track and field community in the United States."

Plaintiff sought a TRO and preliminary injunction "enjoining Defendant from (1) contacting Plaintiff, (2) sending communications to various individuals, (3) publishing defamatory, disparaging, or offensive material that relate to Plaintiff or his family, and (4) making any public statements about certain topics {[i.e.,] about this litigation or about Plaintiff's conduct as a publicly employed coach at a state university}." But the Magistrate Judge recommended that no such injunction be issued; an excerpt:

"The First Amendment prohibits 'abridging the freedom of speech,' and the United States Supreme Court has interpreted this prohibition to forbid, among other things, 'prior restraints.'" "[P]ermanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." … "[I]n the case of a prior restraint on pure speech, the hurdle is substantially higher: publication must threaten an interest more fundamental than the First Amendment itself." The plaintiff's burden to establish that a prior restraint is warranted is heavy but "not impossible to overcome." Even so, "[P]rior restraints on speech and publication are the most serious and least tolerable infringement on the First Amendment rights." …

[Plaintiff] asks the Court to enjoin Defendant from communicating with Plaintiff and others about Plaintiff, publishing statements about Plaintiff, and making any public statements about certain topics. In other words, he asks the Court to regulate Defendant's speech….

Plaintiff does not argue that the injunction is warranted to prevent an interest more fundamental than the First Amendment itself. Instead, Plaintiff claims that "the relief sought is narrowly tailored to protect [him] from serious and consequential harm while placing only minimal limitations on Defendant Lambert's First Amendment right to free speech." That is not sufficient to restrict Defendant's First Amendment rights at this juncture.

Moreover, although Plaintiff characterizes his proposed injunction as "narrow in scope," the Court finds otherwise. Plaintiff seeks to enjoin Defendant from sending "defamatory or disparaging statements" to various individuals and entities. "An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression."

He also seeks to enjoin Defendant from "[m]aking any public statements" about certain topics. This is overly broad….

"[I]t would be extraordinary for a federal court to enter a preliminary injunction on a defamation claim." … "It appears wholly unprecedented, however, for a federal court to enter a preliminary injunction in a defamation case. In those defamation cases upholding the constitutionality of restraints on future speech, the injunctions were entered after the claims were adjudicated on the merits, and the injunctions were limited to the speech that was actually found to be defamatory by the fact-finder."

{Plaintiff relies on Lothschuetz v. Carpenter (6th Cir. 1990) and In re Conservatorship of Turner (Tenn. Ct. App. 2014), stating that they recognize or adopted the "modern rule" that permits injunctions restricting defamation. But the modern rule to which Plaintiff refers relates to courts entering injunctions after a determination on the merits…. "Six federal circuit courts of appeal have held that injunctions are permissible to prevent libel, but only after a finding on the merits that the speech is unprotected." … "… [A]lthough the usual rule provides that defamation may be remedied only by an action for damages, even application of the modern rule bars plaintiffs' requested injunction" because "there has been no final determination that defendant's statements are false and libelous."

I think that's right; for more, see the analysis in Anti-Libel Injunctions.

The post U Tennessee Track & Field Head Coach Seeks Preliminary Injunction Against "Untruthful, Derogatory and Offensive Statements" Plus More Commentary appeared first on Reason.com.

From State v. Conrad, decided Monday by the Ohio Court of Appeals, in an opinion by Judge Eugene Lucci, joined by Judges Matt Lynch and Scott Ylnch:

In 2025, Conrad was living with his girlfriend and their ten-month-old son in Conrad's home in Wickliffe, Ohio. In April 2025, Conrad and his girlfriend were involved in a verbal altercation. After the girlfriend allegedly damaged Conrad's PlayStation console in the basement, Conrad called 911. He informed the dispatcher that he would be armed "because the cops are coming in here." The dispatcher responded, "Do not pick it up with your hands, okay?" Conrad stated, "Absolutely." After ending the 911 call, Conrad armed himself by holstering a handgun on his right hip and then went upstairs to await law enforcement.

When the first officer arrived, Conrad observed him approaching the front door on foot, at which point Conrad opened the door for the officer and informed him that he was armed. The officer responded by stating "pardon me" or "excuse me," and Conrad responded again that he was armed. The officer saw the firearm on Conrad's hip and informed him that he was going to relieve him of the gun. Conrad initially refused, stating, "No you're not," and he changed his stance by turning his right hip away from the officer. Conrad then motioned to or placed his hand on his gun, at which point the officer drew his own firearm. After loudly arguing as to whether Conrad was permitted to be armed, Conrad raised his hands and told the officer to take his gun. Approximately 23 seconds elapsed between the officer entering the home and the officer disarming Conrad.

After disarming Conrad, the officer spoke with him for several minutes regarding his decision to arm himself. During this conversation, Conrad indicated he had armed himself because he believed men were typically arrested when police were called for domestic matters, and he wanted to "eve[n] the playing field" because he was unsure how officers would respond and did not trust them. After speaking with Conrad, the first responding officer joined other officers who had arrived and were speaking to Conrad's girlfriend in the basement. The girlfriend indicated that Conrad had pushed her, and she fell back, bumping her hip against a table, during their dispute.

Conrad was acquitted of domestic violence, but convicted of violating R.C. 2921.31(A), which provides:

No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties.

The court reversed the conviction, on the grounds that the trial court "erred in failing to instruct the jury that the Second Amendment to the United States Constitution, Article I, Section 4 of the Ohio Constitution, and R.C. 2923.12(C)(1)(d) each independently supplied a 'privilege' within the meaning of R.C. 2921.31(A)":

The "without privilege" element … is a substantive element of the offense, and the State bears the burden of proving its absence beyond a reasonable doubt….

Two Ohio appellate decisions confirm that constitutional rights are themselves sources of privilege within the meaning of the obstruction statute. In State v. Robinson (Ohio App. 1995), the First District discussed a defendant's refusal to consent to a warrantless entry into his home. The court stated: "privilege is a defense to a charge of obstructing official business, and an obstruction charge requires proof that the official be obstructed 'in the performance of his lawful duties.' … [T]he Fourth Amendment confers the right to refuse consent to enter. The assertion of that right cannot be a crime." Robinson applies the relevant frame: a constitutional right of refusal cannot be repurposed as the actus reus of an obstruction prosecution, because the official whose order is refused is not, in that circumstance, performing a "lawful duty," and the privilege element of the offense is satisfied by the defendant's exercise of the constitutional right.

The Tenth District applied the same principle in State v. Dickman (Ohio App. 2015). The court held that "[a] predicate for the crime of obstruction of official business is that the official business be an 'authorized act.'" Where the underlying official act exceeds the officer's lawful authority, the court held, the "assertion of [constitutional] rights was not a basis to suspect that he had committed a crime." Dickman thus articulates the converse of Robinson: where the officer's command is itself unauthorized, the defendant's assertion of constitutional rights cannot supply the basis for criminal liability under R.C. 2921.31(A). Robinson and Dickman together stand for the proposition that the "without privilege" and "lawful duties" elements of R.C. 2921.31(A) are interlocking and constitutionally significant….

[Conrad's] possession of a holstered handgun in his own home for self-defense is conduct that sits at the very core of the right Heller identified. The Second Amendment, as construed by the Supreme Court in Heller, McDonald, Bruen, and Rahimi, "confers" upon him—to use Robinson's phrase—the right to that possession…. The Ohio Constitution [also] provides: "The people have the right to bear arms for their defense and security …." … Ohio's constitutional guarantee is no less protective than its federal counterpart in the in-home context. [And Ohio R.C. 2923.12(C)(1)(d)] expressly exempts from the concealed-carry prohibition "[a] person's … storage or possession of a firearm … in the actor's own home for any lawful purpose." This is an express statutory grant of authority to possess a firearm in one's own home, which falls squarely within the definition of privilege as provided in R.C. 2901.01(A)(12).

The General Assembly has further declared in R.C. 9.68(A) that "[t]he individual right to keep and bear arms" is "a fundamental individual right that predates the United States Constitution and Ohio Constitution, and … a constitutionally protected right in every part of Ohio…." While R.C. 9.68 is principally directed at preempting conflicting local ordinances, it confirms the legislative judgment that the right is "fundamental" and "constitutionally protected"—language that bears directly on whether the corresponding statutory exemption qualifies as "privilege" under R.C. 2921.31(A).

Each of the three sources Conrad identified—the Second Amendment, Article I, Section 4, and R.C. 2923.12(C)(1)(d)—qualifies as a source of "privilege" to possess a firearm within the meaning of R.C. 2921.31(A) under the statutory definition…. However, the trial court gave only the OJI [Ohio Jury Instructions] definition tracking R.C. 2901.01(A)(12)—that "privilege" is any "immunity, license, or right conferred by law" or "bestowed by express or implied grant." That instruction states the generic statutory definition of privilege.

The jury heard what privilege means in the abstract. A jury cannot be expected to determine, as a matter of legal interpretation untaught, whether a constitutional right is "conferred by law" within the OJI sense or whether an Ohio statutory exemption qualifies as a "right bestowed by express grant." Moreover, a jury cannot be expected to determine when such a right yields to a seizure by law enforcement—whether such a seizure exceeds the officer's lawful duties. Those are questions of law for the trial court to resolve through proper instruction, not questions of legal exegesis for the jury to undertake without guidance….

A properly instructed jury—told that the Second Amendment, Article I, Section 4, and R.C. 2923.12(C)(1)(d) each independently confer a right to possess a firearm in one's own home—would have had a legally supported path to a finding that the State failed to prove the "without privilege" element beyond a reasonable doubt. The jury was deprived of that path, and the conviction cannot stand.

We emphasize the limited scope of our holding. We hold only that, on the record before us—where Conrad is a non-disqualified person under R.C. 2923.13, was inside his own residence at all relevant times, and possessed a holstered firearm during a 911-initiated police encounter—the constitutional and statutory sources of privilege he identified entitle him to a specific instruction on those sources.

The privilege we recognize today is a privilege of possession subject to lawful disarming. Nothing in this opinion should be read as conferring any right to physically resist a lawful police order or to draw or brandish a firearm in the presence of an officer, or to use a firearm in a manner that itself constitutes a separate offense. The constitutional right to keep a firearm in one's home for self-defense, recognized in Heller, and the statutory exemption in R.C. 2923.12(C)(1)(d), confer a right to have the firearm.

We add one further clarification, because the trial record may otherwise invite confusion on remand. An officer's knowledge at the moment of the order to disarm bears on the lawfulness of that order under the Fourth Amendment. The record reflects that Conrad's explanation of his reasons for arming himself—that he wished to "eve[n] the playing field" with the responding officers—was given to the officer only after the disarming was complete, in a post-disarming conversation, and was offered again at trial.

That sequence is significant, as the explanation cannot retroactively supply the articulable basis for the order; under Terry v. Ohio (1968), the constitutional sufficiency of an investigative seizure is judged by the facts known to the officer at the moment of the seizure. On remand, the jury must be instructed on the privilege framework with sufficient particularity to perform its factfinding role.

Our holding is narrow. We do not hold that the Second Amendment, Article I, Section 4, or R.C. 2923.12(C)(1)(d) confers any right to physically resist a lawful police order, nor do we resolve whether the officer's seizure of the firearm in this case was itself a lawful exercise of authority.

We hold only that, where the State's prosecution under R.C. 2921.31(A) places the "without privilege" element squarely at issue, and where the defendant has identified specific constitutional and statutory sources of privilege supported by the evidence, the trial court must instruct the jury on those specific sources, and, where the facts suggest that the privilege yielded to seizure by a police officer, the trial court must also instruct the jury as to the standard applicable to determine the lawfulness of the seizure. The generic OJI definition is necessary but not sufficient….

The court also concluded that Conrad could indeed be retried, because enough evidence was introduced for a properly instructed jury to convict (that's the standard as to whether the Double Jeopardy Clause allows a retrial following the reversal of a conviction):

Viewing the evidence in the light most favorable to the State, the record contains testimony that, the officer was first to respond to the domestic dispute. Upon entering Conrad's home, he informed Conrad that he was going to relieve him of his holstered firearm. Conrad verbally refused, turned his armed hip away from the officer, and placed his hand on the holstered firearm; that the officer drew his sidearm in response and testified he was "rattled" and nearly discharged his weapon; that the standoff persisted for approximately twenty-three seconds before Conrad complied; and that the officer thereafter spent additional time deescalating the encounter by ascertaining why Conrad had armed himself. Viewed in a light most favorable to the State, a rational trier of fact, could have found each essential element of R.C. 2921.31(A), as set forth in our discussion of the third assigned error, proven beyond a reasonable doubt.

We hold only that the evidence at the first trial was legally sufficient to permit a rational juror to convict; we do not hold that conviction was required, nor do we resolve the question—properly preserved for retrial—whether the officer's order itself constituted the performance of a "lawful duty" within the meaning of R.C. 2921.31(A)….

Joseph R. Klammer (The Klammer Law Office, Ltd.) represents Conrad.

The post Deliberately Arming Oneself to Answer Door to Police May Be "Privileged" Against "Obstructing Official Business" Prosecution appeared first on Reason.com.

H1: Humanitarians, especially including scholars of international law regarding armed conflict, are neutral regarding the belligerent parties in the war, and the Humanitarians collectively are genuinely committed to the humanitarian needs of civilians and noncombatants among both Israelis and Palestinians.

H2: Humanitarians are indifferent to the humanitarian needs of the Israelis but genuinely committed to the humanitarian needs of the Palestinians. Operating on imperfect information in rapidly changing conditions, and limited by what is allowable in international law and what is politically or materially feasible, they seek whatever can be done to reduce or eliminate loss of life or suffering on the part of Palestinians either as a direct or indirect consequence of the war.

H3: Humanitarians are indifferent to the immediate humanitarian needs of Palestinian civilians, but they fervently wish to see Israel defeated in the war Hamas started on October 7. They fervently believe that the only moral conclusion to the war is one that is a net gain for the Palestinians and a net loss for the Israelis. To this end, they endeavor to act as force multipliers both in theatre to preserve Hamas' power and, especially, in Western states, to push for policies that limit Israel's freedom of action, cut it off from military supplies, and apply pressure on it.

H4: Humanitarians are indifferent to the war's strategic outcome and prefer to see more death and more suffering on the Palestinian side, not as an end in and of itself but rather as a means to confirm beliefs in Israel's essentially demonic nature, and as a way of mobilizing hatred and social isolation of Jews in the West. In particular, there is a preference for any rhetoric or political action which removes what are believed to be the unfair social privileges which western Jews hold due to the memory of the Holocaust.

As Mor elaborates: "Overwhelmingly … the majority of the real-life actions of the Humanitarians are in line with the predictions of H3, with a substantial minority also in line with H4. More strikingly, only a tiny amount are plausibly aligned with H2 and virtually none with H1."

This isn't news to anyone who has been paying attention, but it does beg the question: why? Why did concern about international humanitarian law and norms morph into support for Islamist terrorist groups and visceral hatred for Israel and often Jews in general, and a general lack of concern for the actual humanitarian needs even of the side they implicitly or explicitly support (H2)?

The simple answer is that the movement was taken over by a far left strongly influenced by a combination of anti-Western "anti-colonialist" theory and the massive investment of the late USSR is spreading "antizionist" propaganda. But how and why did the relevant institutions, once proudly "liberal" in the broad sense (e.g., Amnesty International and Human Rights Watch) get taken over by the far left? There is a good book to be written on this, if anyone is so inclined.

The post How Did Support for International Humanitarian Law and Norms Morph into Support for Hamas and its Goals? appeared first on Reason.com.