Gordon's two biggest contributions were (1) in expanding our understanding of the American Revolution to include a rejection of hereditary hierarchy as well as a rejection of taxation without representation, and (2) in explaining how Americans came to put their faith in our written and amended Constitution. Gordon knew each of the Framers vividly, and he wrote about all of their lives. He described their virtues and vices with perfect precision. He was as institutionally honest an historian as one will ever find. He did not write hagiographies, but instead painted an accurate portrait of the great men he wrote about. He was as great an historian as Herodotus and Thucydides, which is high praise indeed.

Gordon was also a brave man—a public intellectual who was not afraid to challenge popular errors. He led the effort to denounce the New York Times' 1619 Project, which argued that the Framers were all about slavery and the triumph of racism. Gordon earned some heated criticism for his courageous stance against the DEI effort to paint the founders as racist villains.

He was equally outspoken in criticizing Vice President J.D. Vance for arguing that Americans were defined by their bloodlines and not, as Gordon believed, by their devotion to the principles of the Declaration of Independence and of the Constitution. In a speech within the last year, and an op-ed in the Wall Street Journal, Gordon wrote that the United States has always been a creedal nation. He saw us all as from the start of our history as being defined by believing in the idea that all human beings are created equal and have an inalienable right to Life, Liberty, and the Pursuit of Happiness. We are Americans because we believe in that idea whether our ancestors were English, French, German, Italian, Irish, Polish, Jewish, or of African or Asian dissent. Gordon was just as adamant in denouncing nativism as he was in denouncing the 1619 Project. Gordon also never overstated or understated his case on any point or person of historical interest.

The four cardinal virtues identified by the Greeks and Romans are practical wisdom, justice, courage, and temperance. Gordon embodied all four of the cardinal virtues. He was firm, sharp, and decisive, but also a deeply humble, modest, and kind man who loved his neighbor as himself. When the meek inherit the earth, Gordon will inherit all the land east of the Mississippi River. I tried to persuade him to let me write a biography of him, and he adamantly refused. He wanted to be known as a great historian, not as a celebrity.

Although Gordon was an agnostic Episcopalian, he embodied the three Christian virtues identified by St. Thomas Aquinas: faith, hope, and love. He lived an exemplary life in every way, down to celebrating the 70th anniversary of his marriage to his wife Louise shortly before he died.

He was also one of my five best friends in the world because he was so much fun to talk to. He had an immense knowledge, having read and remembered more books and articles than anyone else I had ever known. He was cheerful and a wonderful colleague. During two semesters during which he taught at the Northwestern Pritzker School of Law, he every day ate lunch—a brown bag lunch he had made himself—in the faculty commons, engaging in countless conversations. When I moved to Rhode Island in 2007, I had lunch with him right away, and we became good friends immediately.  I will miss those conversations and treasure their memory for the rest of my life.

Gordon Wood was both the best scholar ever of the American Founding, and a wonderful and virtuous human being.

The post Remembering Gordon Wood appeared first on Reason.com.

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

The court concluded:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I'm delighted to pass along this item from Prof. Broyde, who teaches legal ethics at Emory and who has written about judicial ethics in particular:

A federal judge does not lose life tenure merely by becoming embarrassing. Nor should Congress threaten judges because it dislikes their opinions, their interpretive methods, or their politics. Judicial independence is one of the central achievements of the Constitution.

But independence is not impunity. The Constitution does not say that federal judges hold office for life no matter what they do. It says they "shall hold their Offices during good Behaviour." That phrase is not an ornament. It is the condition attached to the extraordinary protection of life tenure.

The recent Eleventh Circuit judicial misconduct matter shows why that condition still matters. According to the judicial misconduct materials, an unnamed district judge engaged in an extramarital relationship with a high-ranking law-enforcement officer, including sexual activity in chambers during business hours and within hearing distance of court staff.

The judge initially denied the relationship to judicial investigators, later admitted it, created a deeply uncomfortable workplace, and generated serious concerns about conflicts of interest and vulnerability to blackmail. The judge also attended a partisan political event.

The sanction was a private reprimand, apology letters to former law clerks, and commitments not to seek certain leadership roles. News organizations have identified the unnamed judge as U.S. District Court Judge Eleanor Ross of the Northern District of Georgia. Resolutions of impeachment was introduced by two Georgia Members of Congress.

That identification, and the resulting calls for impeachment, should not obscure the underlying constitutional issue. Some commentators have treated the case mainly as a question of criminal law: whether the judge's initial denials constituted a federal false-statement offense, or whether the misconduct fits neatly within the familiar impeachment phrase "high Crimes and Misdemeanors." Those questions are not trivial. But they are too narrow.

The deeper question is whether a judge who uses chambers this way has continued to satisfy the constitutional condition on which judicial tenure rests for good behavior. I do not think so.

Article II and Article III speak in different but related registers. Article II Section 4 identifies the grounds on which civil officers may be impeached and removed: "Treason, Bribery, or other high Crimes and Misdemeanors." Article III Section 1 explains why federal judges receive their special tenure protection: they serve during "good Behaviour." Article II supplies the constitutional grounds for impeachment and removal; Article I supplies the House-and-Senate mechanism. Article III supplies the tenure condition: good behavior. Federal judges are not simply employees who may be disciplined only when they commit crimes. They occupy constitutional offices premised on public trust, impartiality, restraint, and self-command.

To say this is not to create a shortcut around impeachment. Congress may not evade the Constitution's impeachment process by inventing an administrative process to remove judges outside the Constitution. Removal still requires impeachment by the House and conviction by the Senate. But it does not follow that Congress may act only when a judge has committed an indictable offense. The constitutional question for judges includes fitness for the judicial office, and "good Behaviour" has to mean more than "not yet convicted of a crime."

Nor is the point prudery. Judges have private lives, and not every personal failing is a constitutional matter. The problem here is the connection between private misconduct and public office. Judicial chambers are not private bedrooms. Law clerks and court staff are not unwilling witnesses to a judge's private life. Chambers are part of the federal workplace and part of the machinery of justice. The people who work there are entitled to professional boundaries, dignity, and a judge who does not make the workplace serve the judge's personal desires.

That is why candor alone would not cure the problem. Imagine a judge announcing that chambers would be unavailable during lunch because the judge was conducting an extramarital affair there with a police commander. The announcement would be honest and would avoid any problem of false statement. It would also be intolerable. The misconduct is not merely the lie to the Chief Judges. It is the use of judicial space, judicial time, and judicial authority in a way incompatible with the office.

The conflict concern is equally serious. A secret relationship between a federal judge and a senior law-enforcement officer in the same community is not a harmless private indiscretion. Federal courts hear criminal cases, civil-rights actions, suppression motions, warrant challenges, police-witness credibility questions, and cases involving government agencies. The judicial materials may not establish that the judge actually ruled in a case involving that officer or that officer's department. But the public should not have to rely on luck to preserve the appearance of impartial justice. A judge has an obligation to avoid not only actual conflicts, but also circumstances that reasonably call the court's neutrality into question.

The judiciary's response exposes the limits of self-policing and as Gabe Roth of Fix the Court observed is "underwhelming" and "looks more like judges protecting their own than serious remediation or punishment." A private reprimand may be appropriate for ordinary misconduct. It is inadequate for conduct that used chambers for sexual activity, compromised staff, misled a misconduct inquiry, created conflict-of-interest risks, and damaged public confidence in the courts—conduct that is clearly not "good behavior". The judiciary can admonish, discipline, and—as it sought to do in this case—conceal the violator's identity. But only Congress can decide whether misconduct this grave warrants removal from a life-tenured office.

That congressional role must be exercised with great caution. The failed impeachment of Justice Samuel Chase remains an essential warning. Judges must not face removal because legislators dislike their rulings. "good Behaviour" cannot become a partisan trapdoor through which Congress threatens judicial independence whenever the political branches are angry at the courts.

But this case is not Chase. It is not about a controversial opinion, statutory interpretation, constitutional methodology, or ideological disagreement. It is about personal misconduct in chambers, treatment of court staff, dishonesty in a judicial misconduct inquiry, attendance at a partisan event, and the misuse of the judicial workplace. If Congress cannot even consider impeachment in a case like this, then the phrase "good Behaviour" has been drained of most of its practical meaning.

The House should therefore do what the judiciary has not done publicly. The House should open an expedited impeachment inquiry, first confirming whether the judge described in the misconduct orders is Judge Ross, and then deciding whether articles of impeachment are warranted. No facts need to determined other than confirming the identity of the judge. It need not reinvestigate the facts, since they were already determined in a Judicial Council order. Articles of impeachment should be framed carefully, not sensationally and they should focus on the good behavior standard. The conduct recited in this case certainly seems to be grounds for impeachment in the House.

The Senate, which must hold a trial, should then decide whether the conduct justifies conviction and removal. That decision should be sober, institutional, and constitutional. It should not be a partisan spectacle. It should ask whether life tenure can survive as a public trust if the good-behavior condition is treated as a dead letter.

Life tenure is one of the Constitution's greatest protections for the rule of law. It enables judges to decide cases without fearing presidents, senators, mobs, donors, or editorial pages. But the price of that independence is conduct worthy of confidence. A judicial robe is not a nightgown and chambers are not bedrooms. And "good Behaviour" is not an empty phrase.

When a federal judge stops behaving well in the performance and setting of judicial office, Congress should be willing to say so.

The post Prof. Michael Broyde (Emory) on "When Judges Stop Behaving Well" appeared first on Reason.com.

From today's opinion by Magistrate Judge Enjoliqué A. Lett (S.D. Fla.) in Trump v. BBC:

On December 15, 2025, Plaintiff initiated this action, and the Clerk of Court assigned the matter to Judge Roy K. Altman stating, "U.S. Magistrate Judge Enjolique A. Lett is available to handle any or all proceedings in this case." Shortly thereafter, on January 12, 2026, the parties voluntarily elected to have the Undersigned preside over discovery matters in this action. On February 11, 2026, Judge Altman referred this case to the Undersigned for all pretrial non-dispositive and discovery matters….

Plaintiff now seeks—over 160 days after the Undersigned's involvement in this case—the Undersigned's recusal, on the eve of the Undersigned setting a discovery hearing. Specifically, Plaintiff asserts the Undersigned's prior representation of Orbis Business Intelligence, Ltd. in Trump v Clinton (S.D. Fla. filed March 24, 2022), warrants recusal and a stay of discovery….

Under the catch-all provision of the federal recusal statute on which Plaintiff relies, "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." "[W]hat matters under § 455(a) 'is not the reality of bias or prejudice but its appearance.'" "This inquiry is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." …

As an initial matter, Plaintiff's failure to raise the issue of recusal at the first available opportunity constitutes a waiver. Plaintiff failed to move for recusal from the outset of this action and has only done so when a disputed discovery issue arose. Plaintiff's counsel suggests that this delay was because "[he] was not Plaintiff's counsel in the Adverse Matter, and was not immediately aware of Magistrate Judge Lett's participation in that litigation." However, Plaintiff's counsel did appear on behalf of President Trump, the plaintiff/appellant in the "Adverse Matter," during the appellate phase of the "Adverse Matter." The Undersigned represented Orbis Business Intelligence Ltd. in those proceedings…. Since, as appellate counsel, Plaintiff's counsel would have been familiar with the underlying proceeding and the appellate docket, counsel knew or should have known of the Undersigned's prior representation of Orbis Business Intelligence,

Even assuming there was not a waiver, the Motion nonetheless fails. The Undersigned's past representation of an unrelated, non-party in this action does not, without more, constitute a circumstance where, objectively, the Undersigned's impartiality might reasonably be questioned. See Rice v. Chief Exam'r of Ala. Dept. of Exam'rs of Pub. Accts. (11th Cir. 2025) (affirming district court's denial of recusal motion because a judge's "former representation of [the defendant] had nothing to do with th[e] [current] action"); see also U.S. v. Page (11th Cir. 2025) (affirming district court's denial of recusal motion because the judge's prior representation of a party related to the current action was unrelated to the current case); Chitimacha Tribe of Louisiana v. Harry L. Law Co., Inc. (5th Cir. 1982) (stating "the fact that [the judge] once represented [a defendant] in unrelated matters does not forever prevent him from sitting in a case in which [the former client] is a party")….

Plaintiff fails to cite a single case where recusal was required pursuant to 28 U.S.C. § 455(a) where the jurist, while in private practice, represented an adverse party….

Trump v. Clinton—an alleged RICO action—was dismissed at the pleadings stage, and the dismissal was upheld. And since Trump v. Clinton never progressed to discovery, any discovery issues raised by the parties in this case—a defamation action—would not have been issues argued by the Undersigned in the "Adverse Matter."

In short, simply representing a party who was once adverse to a party currently before the court does not "objectively speaking, [make] 'the probability of actual bias on the part of the judge or decisionmaker [] too high to be constitutionally tolerable.'"

The post Magistrate Judge Declines to Recuse Herself in <i>Trump v. BBC</i> Libel Lawsuit appeared first on Reason.com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The post No Pseudonymity for Accountant Challenging Public Company Accounting Oversight Board Disciplinary Proceedings appeared first on Reason.com.

Today, Lawfare published my article "Callais Doesn't Justify Court-Packing." Here is an excerpt summarizing key points:

The Supreme Court's recent decision in Louisiana v. Callais—barring nearly all use of the Voting Rights Act (VRA) to create majority-minority congressional districts—has been met with outrage by many on the political left and led to renewed calls for court-packing. For example Rep. Ro Khanna (D-Calif.) has said that "[w]e need to expand this morally bankrupt court from nine to 13." House Minority Leader Hakeem Jeffries (D-N.Y.) has said that "everything should be on the table," presumably including court-packing. Former vice president and 2024 Democratic presidential nominee Kamala Harris has expressed similar sentiments. A number of other Democrats advanced court-packing plans even before Callais.

The Callais decision has some flaws. And the conservative majority on the Supreme Court has made some serious errors in other cases, such as the Trump presidential immunity decision. But court-packing remains a dangerous idea that Americans across the political spectrum should reject. Callais is not without merit, and—at the very least—not as bad as its most strident critics claim. More generally, the Supreme Court is far from being a pure "MAGA" Court and has, in fact, constrained the Trump administration's abuses on several important fronts, and has allowed lower courts to constrain it elsewhere. Court-packing would create a slippery slope to the destruction of judicial review, thereby benefiting power-grabbing presidents like Trump, and imperiling constitutional rights, particularly those of minority groups. To the extent Callais is a problem, it can be better addressed by steps such as banning gerrymandering. There are also better remedies for various other shortcomings of the Court, such as enacting term limits and imposing an ethics code.

The rest of the article covers these issues in greater detail.

By coincidence, this is my second popular media article this week that is likely to annoy the left more than the right (along with yesterday's Washington Post article critiquing NYC Mayor Zohran Mamdani's badly flawed and unconstitutional housing policy). I'm sure I will get back to the business of annoying the right soon enough!

The post My New Lawfare Article on "Why Callais Doesn't Justify Court-Packing" appeared first on Reason.com.

Representative Kamlager-Dove … is … the Ranking Member of the South and Central Asia Subcommittee of the House Foreign Affairs Committee …. The Subcommittee held a hearing on April 1, 2025, titled "Censorship Industrial Complex: The Need for First Amendment Safeguards at the State Department" …. Taibbi was invited to testify at the Hearing. At the start of the Hearing, Representative Kamlager-Dove delivered her prepared remarks, which included the following statements:

Thank you, Mr. Chair, and thank you for being here for our first South and Central Asia Subcommittee hearing. I look forward to working with the Chair in a bipartisan way on the critical issues we are charged with overseeing.

Unfortunately, we're not having a hearing about any of those. Instead, this Subcommittee is wasting taxpayer time and resources on the fifth such hearing Republicans have held across multiple committees on the so-called "censorship-industrial complex."

The majority is relitigating a made-up conspiracy theory about a part of the State Department that no longer exists to distract from the dumpster fire foreign policy this Administration is pursuing—and elevating a serial sexual harasser as their star witness in the process.

The same day of the Hearing, Representative Kamlager-Dove reposted a video of the Statements on two social media platforms: X (formerly Twitter) and BlueSky. Both posts contained the same statement: "After this, Republicans gave Matt Taibbi time to defend himself. It's telling that he didn't." … Representative Kamlager-Dove also posted the Statements on her official House.gov website….

Taibbi alleges that the "serial sexual harasser" comment by Representative Kamlager-Dove was directed at him and that it is "demonstrably false" and "made with actual malice." Taibbi claims that the republications of the Statements—the X, BlueSky, and Website Posts—were defamatory ….

Members of Congress, like other employees, are covered by the Westfall Act, under which, if "the defendant qualifies as an 'employee of the government,' and the Attorney General certifies that the employee 'was acting within the scope of his office or employment,'" the U.S. government is substituted as defendant for the employee. And though the AG's certification is reviewable, here the court agreed that "Representative Kamlager-Dove's statements were within the scope of her employment." Some excerpts:

Here, Taibbi challenges Representative Kamlager-Dove's statements "made during a congressional hearing in Washington, D.C." which allegedly "became actionable defamatory statements" when they were "republished … on social media sites." Taibbi argues that "crowing to voters, and self-aggrandizement to voters on X and Bluesky is not official congressional work but partisan communication." Taibbi claims the Statements were republished to "bolster [Representative Kamlager-Dove's] political standing."

Representative Kamlager-Dove's Statements and republications, however, are precisely the kind of conduct that is "a central part of the job for members of Congress." Indeed, a "primary obligation of a [m]ember of Congress in a representative democracy is to serve and respond to his or her constituents." As the Ranking Member of the Subcommittee holding the Hearing, Representative Kamlager-Dove's remarks mentioned "taxpayer time and resources" and "foreign policy"—topics that are important to members of Congress and that are top-of-mind for their constituents.

Republishing the statements online does not change the analysis. Taibbi claims that the "republications on X, BlueSky, and [Representative Kamlager-Dove's] website were not legislative work, [and] occurred outside the legislative setting." But members of Congress routinely engage with the public on social media and on the internet as part of their jobs. As Taibbi concedes, Representative Kamlager-Dove was simply "talking to voters on Twitter." …

As a member of Congress, Representative Kamlager-Dove has a "proper duty" to "look diligently into every affair of government and to talk much about what [she] sees." And she did so at the Hearing. In addition to the allegedly defamatory statement, Representative Kamlager-Dove discussed taxes, foreign policy, and immigration policy. She explicitly stated political disagreement with the opposing party in her social media posts, writing: "Republicans gave Matt Taibbi time to defend himself. It's telling that he didn't." Political statements by members of Congress—such as Representative Kamlager-Dove's here—are made within their scope of employment.

Representative Kamlager-Dove's statements "were calculated to serve the interests of [her] constituents (i.e., employers) by informing them of [her] views regarding" certain issues, laws, and policies. Put simply, Representative Kamlager-Dove's statements were "out of an interest in serving the public [and her constituents]—even if [s]he was partially motivated" by other political reasons.

So the U.S. government was properly substituted for Rep. Kamlager-Dove—and that doomed Taibbi's defamation claim, because the Federal Tort Claims Act, under which the U.S. government waived its sovereign immunity as to many tort claims, "expressly excludes defamation claims from the federal government's immunity waiver." So because of the Westfall Act, Taibbi loses against Rep. Kamlager-Dove; and because of the FTCA exclusion of defamation claims, he loses against the federal government.

Note that the Speech or Debate Clause bars defamation lawsuits over statements made in Congressional hearings or related official proceedings. It by itself doesn't cover members' republication of those statements on social media.

Stephen Terrell of the DoJ Civil Division represents defendant.

The post Author Matt Taibbi's Libel Claim Over House Member's Social Media Posts Dismissed appeared first on Reason.com.

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

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

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

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

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

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

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

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

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

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

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

In 2009, the Supreme Court decided Ricci v. DeStefano. The Justices reversed Judge Sonia Sotomayor's indefensible ruling against the Frank Ricci and the other firefighters. But the Court stopped short of deciding whether New Haven's attempt to avoid liability for disparate impact violated the Equal Protection Clause. Justice Scalia concurred to explain the Court was merely postponing the inevitable question:

But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

Nearly two decades later,  with a very different Supreme Court, this question is now primed for resolution.

Today the Office of Legal Counsel issued an opinion finding that the EEOC's Title VII guidelines are unconstitutional.

EEOC's existing interpretations, including the Uniform Guidelines on Employee Selection Procedures ("Guidelines"), embrace an unconstitutional reading of Title VII. Rather than treating disparate impact as an evidentiary mechanism to smoke out intentional discrimination—imposing liability only when disproportionate adverse effects give rise to a strong inference of intentional discrimination—EEOC's historic interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer's likely intent. Because EEOC's historic approach divorces liability from circumstances giving rise to a strong inference that intentional discrimination occurred, it functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decisionmaking to avoid liability. That approach is unlawful and unconstitutional.

The opinion relies on Allen v. Milligan, which declared for the first time that our Constitution is "color-blind."

Three corrections to that approach are necessary "to resolve the ten-sion between [disparate-impact] claims under [Title VII] and our color-blind Constitution." Allen v. Milligan, No. 25A1314, 2026 WL 1552756, at *1 (U.S. June 2, 2026) (per curiam).

As I observed, this emergency docket opinion may become more significant than Callais, a theme that the Wall Street Journal picked up. Allen made clear that Callais applies to the Equal Protection context. Indeed, the Opinion links Callais back to the Justice Alito's TJ dissental.

Even facially race-neutral actions, when mo-tivated by the purpose of altering racial balance, constitute intentional discrimination against the members of the racial group who are balanced down. After all, "if race played a role in a decision made by a govern-ment actor," or at the behest of a government actor, then race discrimi-nation has occurred and "strict scrutiny applie[s]." Louisiana v. Callais, 146 S. Ct. 1131, 1146 (2026); see also Coal. for TJ v. Fairfax Cnty. Sch. Bd., 146 S. Ct. 541, 545 (2024) (Alito, J., dissenting from denial of certiorari).

This opinion is earth-shattering. The Department of Justice ruled that disparate-impact compels employers to engage in unconstitutional race discrimination.

Just as "the Federal Government is prohibited from discriminating on the basis of race," so too is it "prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or munici-pal—discriminate on the basis of race," unless those laws survive strict scrutiny. Ricci, 557 U.S. at 594 (Scalia, J., concurring) (first citing Bol-ling, 347 U.S. at 500; and then citing Buchanan v. Warley, 245 U.S. 60, 78–82 (1917)). And just as it is unconstitutional for the federal govern-ment to "force[] States to engage in the very race-based discrimination that the Constitution forbids," Callais, 146 S. Ct. at 1142; see also Miller v. Johnson, 515 U.S. 900, 926–27 (1995), so too it is unconstitutional for the federal government to coerce employers to adopt employment policies or make employment decisions motivated by race. Disparate-impact liability does not just raise constitutional doubt in occasional cases; unless narrowly circumscribed, it structurally compels the very racial discrimination that the Constitution forbids.

In the same way that Callais "updated" Gingles, this opinion calls on the Court to "update" Griggs:

Reading Griggs in context and together with the Supreme Court's more recent precedent requires "updat[ing] the framework" for dispar-ate-impact liability "to ensure a constitutional reading and application of" Title VII. Callais, 146 S. Ct. at 1157, 1161 (updating the framework for claims under section 2 of the Voting Rights Act). As Justice Scalia suggested in Ricci, a properly tailored disparate-impact scheme might constitutionally operate as "an evidentiary tool" to "smoke out" practices that present a significant likelihood of intentional discrimination. 557 U.S. at 595 (Scalia, J., concurring); see also City of Rome v. United States, 446 U.S. 156, 177–78 (1980).

This is a similar approach to the one that the Supreme Court took in Callais, which held that section 2 of the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, "imposes liability only when the circum-stances give rise to a strong inference that intentional discrimination occurred." . . . Applying Griggs, Wards Cove, Inclusive Communities, and Callais, we identify three limiting principles on disparate-impact liability that prevent a constitutional collision under current Supreme Court prece-dent. We emphasize, as the Supreme Court has, that no single limiting principle is wholly sufficient; rather, each caveat is essential to avoid the conclusion

I suspect the EEOC will bring suit against firms that have made race-conscious decisions to avoid disparate impact suits (or more likely because they agree with separating people based on race). At that point, the constitutionality of disparate-impact is squarely teed up.

Kudos to Assistant Attorney General Elliot Gaiser and Deputy Assistant Attorney General Josh Craddock for putting forth this remarkable opinion. I also have to give credit to my Manhattan Institute colleague, Gail Heriot, who is cited throughout the opinion. Gail has been beating this sometimes-lonely drum for decades. And she has been right for decades.

The post Office of Legal Counsel Concludes That Disparate Impact Liability Under Title VII Is Unconstitutional appeared first on Reason.com.

The Washington Post just published my article "Build Homes, Don't Seize Them, Mayor Mamdani." Here is an excerpt:

"Block by Block," Zohran Mamdani's "sweeping blueprint" to reduce housing prices in New York City, comes with a dangerous promise. "When necessary," the mayor said on May 26, "we will take aggressive legal action to remove negligent owners and property managers" and transfer ownership to "responsible stewards." The problem: The proposal is an unconstitutional power grab that would exacerbate the city's housing crisis.

The Fifth Amendment's takings clause stipulates that the government may not take "private property" for public use without "just compensation." There is a long-standing debate over the extent to which regulations that constrain the use of property but don't seize it outright qualify as takings. Virtually all jurists and legal scholars, however, agree that outright confiscation does….

If the government could expropriate property at will, it could pursue widespread seizure from anyone using property in ways the party in power disapproves of, or for purposes of transferring it to cronies and favored constituencies. Such abuses are common in authoritarian states, which is one reason the founders inserted the clause into the Bill of Rights in 1791. James Madison and others supported it in part because of arbitrary confiscation by British authorities.

The post My New Washington Post Op ed on NYC Mayor Mamdani's Unconstitutional Housing Policy appeared first on Reason.com.

From al Ghashiyah v. Oster, decided last Thursday by Wisconsin Court of Appeals Judges JoAnne Kloppenburg, Jennifer Nashold, and Chris Taylor:

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

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

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

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

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

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

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

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

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

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

In Withers v. City of Aberdeen, decided yesterday by Judge Sharion Aycock (N.D. Miss.), both sides had filed briefs containing citations to nonexistent cases; the briefs were drafted by out-of-state counsel, each of whom had local counsel (as the rules generally require). Withers was represented by Wilson with Ridgeway as local counsel; the City was represented by Williams with McClinton as local counsel. I focus here just on the sanctions imposed on local counsel:

Ridgeway is a Mississippi licensed attorney who works for Christian & Small, LLP. She sponsored Wilson's pro hac vice admission in this case and serves as local counsel for Withers. As noted, Ridgeway appears as a signatory to Withers' Opposition to Defendant City of Aberdeen's Motion for Summary Judgment [105], which contained two citations to nonexistent cases. Though she was not the drafter of that document, she admitted to failing to review and verify the accuracy of the legal authority cited therein. In other words, she did not check the cases after authorizing her signature on the filing.

At the hearing, Ridgeway explained that she was unaware of Wilson's AI use but did not attempt to excuse herself on that basis. She explained that she does not personally use AI and that her firm has a policy in place pertaining to AI use. In essence, Wilson would present Ridgeway with a copy of proposed filings drafted by Wilson, and the two would discuss the substance of the same. Despite this communication between the two, Ridgeway admitted to not reviewing the legal citations in those drafts before they were filed, including Withers' Response [105]. Ridgeway accepted responsibility for her role in the violation stemming from the fake cases cited in that filing as well as in others. {Following the show cause hearing, Ridgeway informed the Court that she had self-reported to the Mississippi Bar. The Court finds that this act demonstrates her acceptance of accountability.}

As briefly discussed above, Ridgeway conducted a thorough analysis of all filings submitted on behalf of Withers in this case after entry of the Court's show cause order. The Court appreciates her efforts in attempting to remediate the issue and her acceptance of responsibility but finds that those factors do not shield her from being sanctioned. In addition to admitting her violation of Rule 11, Ridgeway also conceded that her omissions violated this Court's Local Rules. Local Rule 83.1 provides in pertinent part:

Association and Duties of a Resident Attorney. No eligible non-resident attorney may appear pro hac vice unless and until a resident attorney has been associated. The resident attorney remains responsible to the client and responsible for the conduct of the proceeding before the court.

Certainly, resident attorneys are responsible for providing guidance and oversight of non-resident attorneys to ensure that they are complying with procedural and ethical rules. After all, resident attorneys are basically the gateway for out-of-state attorneys to have access to Mississippi's court system. The Court does not take a violation of that core duty lightly. At the same time, taking into account the specific circumstances of this case, it does not find that Ridgeway acted in bad faith. Her omissions were negligent and careless but not purposeful….

McClinton … was a signatory to the two filings submitted on behalf of the City, which contained hallucinatory citations. At the hearing, McClinton explained that he was not aware that the motions at issue were being filed but acknowledged that he had previously given Williams permission to affix his signature on prior filings without reading the documents. Though he was not provided the filings for his review prior to their filing, McClinton did not attempt to use that as an excuse and explained that it was not unreasonable for Williams to have done so based on their course of practice. In other words, he had impliedly given permission for her to do so.

McClinton also explained that only two attorneys practice at his law firm, that he does not use AI in his practice, and therefore does not have an AI policy in place. Much like Ridgeway, McClinton was unaware that his co-counsel, Williams, had used an AI research tool to conduct legal research in the case. McClinton also acknowledged that he should have reviewed the filings when he received the automatic notification of electronic filing and expressed his remorse for having failed to do so. Again, he does not contest his Rule 11 violation.

For the same reasons provided above concerning Ridgeway, the Court finds that he too violated his duties as a sponsoring resident attorney pursuant to this Court's Local Rules. Because he was not the drafter of the filings at issue and did not use AI in this case, the Court has no reason to believe that he acted in bad faith. Like Ridgeway, the Court finds that McClinton acted negligently and carelessly. However, he accepted responsibility for his role in the violation and, like Ridgeway, informed the Court that he had self-reported to the Mississippi Bar following the show cause hearing. The Court credits his candor and steps taken towards holding himself accountable.

In an era of rampant unverified AI usage within the legal field, this case presents a prime example of the risk associated with serving as a rubberstamp when acting as local counsel.

Local counsel were therefore disqualified from the case, ordered to pay $1000 each in fines, and referred to bar authorities. Wilson and Williams, the lawyers who drafted the filings, were fined $2500 and $3500 and otherwise disciplined as well.

The post Nonexistent Case Citations on Both Sides + "Rubberstamp[ing]" by "Local Counsel" appeared first on Reason.com.

Any party, counsel, or member of the public who may have obtained copies of ECF 3009-1 during the time that it was publicly available, including through ECF Court alerts that automatically generate PDF copies filed in the case, shall immediately delete and destroy them.

That, my friend and longtime Internet lawyer Megan Gray and I thought, was unconstitutional as to "member[s] of the public." So Megan and I asked the court for leave to file an amicus brief, on behalf of the Free Law Project (the CourtListener / RECAP people) and the First Amendment Coalition, urging the court to reject the proposed order. We argued that the proposal violates

1. Rule 65 of the Federal Rules of Civil Procedure, because "[a]n injunction … binds a non-party only if it … either abets the enjoined party in violating the injunction, or is legally identified with the enjoined party," CFPB v. Howard Law, P.C., 671 F. App'x 954, 955 (9th Cir. 2016) (cleaned up) (emphasis added), and Proposed Amici have no relationship with the original parties;
2. the Due Process Clause, under which restraints on Proposed Amici could not be imposed without "notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quotations omitted);
3. the First Amendment, because "[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it," Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975), and this principle extends to public information sites such as Free Law Project as well as to advocacy groups such as the First Amendment Coalition;
4. 47 U.S.C. § 230, because CourtListener is an "interactive computer service" that cannot be ordered to remove material posted at the direction of a user (which is how court filings are hosted by Free Law Project).

We're glad to report that, shortly after we filed the proposed amicus brief, Meta said it would withdraw the sealing request, and with it the request for the public-must-delete-and-destroy-its-copies order. Here were the details of our argument:

[* * *]

[I.] The ECF 3048 Proposed Order Would Violate Rule 65

"Consistent with historical practice, a federal court exercising its equitable authority may enjoin named defendants from taking specified unlawful actions. But under traditional equitable principles, no court may 'lawfully enjoin the world at large' …." Whole Woman's Health v. Jackson, 595 U.S. 30, 44 (2021) (quoting Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (L. Hand, J.)). Federal Rule of Civil Procedure Rule 65 applies this principle. Lynch v. Rank, 639 F. Supp. 69, 72 (N.D. Cal. 1985) (citing Rule 65 and Alemite). "The law is clear that a court may not enforce an injunction against a nonparty who acts independently of the enjoined party." Blockow­icz v. Williams, 630 F.3d 563, 568 (7th Cir. 2010) (cleaned up). "It is firmly established that 'a court may not enter an injunction against a person who has not been made a party to the case before it.'" LifeScan Scotland, Ltd. v. Shasta Technologies, LLC, No. 11-cv-04494-WHO, 2013 WL 4604746, at (N.D. Cal. Aug. 28, 2013) (citing Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996)).

Rule 65(d)(2) provides the only exceptions to this rule:

The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties' officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

An injunction thus binds a non-party only if it "either 'abets the enjoined party' in violating the injunction, or is 'legally identified' with the enjoined party." CFPB v. Howard Law, P.C., 671 F. App'x 954, 955 (9th Cir. 2016) (cleaned up) (citing NLRB v. Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 633 (9th Cir. 1997)). And "the fact that [a third party] is technologically capable of removing the postings does not render its failure to do so aiding and abetting." Blockowicz, 630 F.3d at 568.

Proposed amici have no relationship with any of the parties in this case (other than being users of defendants' products and services), nor any connection to the underlying litigation. Thus, under Rule 65, this Court may not order proposed amici as non-parties to delete or destroy any documents in their possession.

[II.] The ECF 3048 Proposed Order Would Violate the Due Process Clause

Nonparties to a lawsuit, who received "neither notice of, nor sufficient representation in" the proceedings, cannot be bound by the court's decision "as a matter of federal due process." Richards v. Jefferson County, Ala., 517 U.S. 793, 805 (1996). "Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (cleaned up). And the notice must be coupled with service of process: Actual notice "does not alone meet the formal requirements for obtaining personal jurisdiction" over someone whom a party seeks to bind to a court order. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 958 (4th Cir. 1999).

A federal court may not issue without "personal jurisdiction over the parties"; "it may not attempt to determine the rights of persons not before the court." Zepeda v. U.S. Immigr. & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983).

It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process. The consistent constitutional rule has been that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.

Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 110 (1969) (citations omitted). "Injunctive relief, by its very nature, can only be granted in an in personam action commenced by one party against another in accordance with established process. Consequently, a party cannot obtain injunctive relief against another without first obtaining in personam jurisdiction over that person or someone in legal privity with that person." R.M.S. Titanic, Inc., 171 F.3d at 957.

Due process principles are especially applicable to restrictions on speech. In Carroll v. President & Comm'rs of Princess Anne, the Supreme Court held that even a "10-day restraining order …, issued ex parte, without formal or informal notice to the petitioners or any effort to advise them of the proceeding, cannot be sustained." 393 U.S. 175, 181 (1968). Here, the ECF 3048 proposed order would require members of the public to permanently delete and destroy their copies of the relevant document, without their having been given notice and the opportunity to be heard, and thus would violate both the Due Process Clause and the First Amendment. And though proposed amici learned of this proposed injunction by happenstance and seek to proactively oppose it, the injunction would nonetheless violate the Due Process Clause as to all other third parties that it might cover.

[III.] The ECF 3048 Proposed Order Would Violate the First Amendment

The proposed order compelling members of the public to delete or destroy information they lawfully obtained from court records would result in an unconstitutional prior restraint on speech. "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Alexander v. United States, 509 U.S. 544, 550 (1993). An order to delete or destroy court records that are lawfully obtained, which is inherently a "takedown order" for material that has been distributed or published, "is a classic prior restraint of speech." Garcia v. Google, Inc., 786 F.3d 733, 747 (9th Cir. 2015). A "prior re­straint on publication" is "one of the most extraordinary remedies known to our jurisprudence" and "the most serious and the least tolerable infringement on First Amendment rights." Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559, 562 (1976).

"Once the government has placed … information in the public domain, reliance must rest upon the judgment of those who decide what to publish …." Florida Star v. B.J.F., 491 U.S. 524, 538 (1989) (cleaned up). Where "true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496-97 (1975).

In Florida Star, a newspaper was sued by a sexual assault victim for publishing her name after lawfully obtaining it from a publicly released police report. 491 U.S. at 526. The police improperly released the report with the victim's name. Id. at 526-27. Yet the Supreme Court held that the newspaper still had a right to publish the released information, despite this error on the part of the police. Id. at 538. Therefore, even if the court record at issue was mistakenly filed on the public docket, the press and public cannot be restrained from retaining or publishing it. See Neb. Press Ass'n, 427 U.S. at 568 (holding that even if a preliminary hearing could have been closed, "once a public hearing had been held, what transpired there could not be subject to prior restraint").

Indeed, as the Supreme Court held in Bartnicki v. Vopper, even if a document on matters of public concern (and public court records would surely qualify) was originally illegally leaked, people who innocently obtained it are free to publish it. 532 U.S. 514, 535 (2001). "The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed." Nieman v. VersusLaw, Inc., 512 F. App'x 635, 637 (7th Cir. 2013) (holding that a legal research website that published "links to information and documents in the public record" was protected by the First Amendment).

And this extends to all publishers of information, not just traditional mainstream media. "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. FEC, 558 U.S. 310, 352 (2010) (cleaned up). The Supreme Court "has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers." Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1290 (9th Cir. 2014) (applying this principle to defamation contexts as well, id. at 1291). And in Bartnicki, the Court expressly made clear that it drew "no distinction between the media respondents" and a nonmedia defendant. 532 U.S. at 525 n.8.

Like the restriction on the newspapers in Florida Star, the Proposed Order would require proposed amici to conceal information that was lawfully accessed from the public record. The First Amendment continues to protect their right to distribute the information they legally obtained directly or indirectly from PACER.

[IV.] The ECF 3048 Proposed Order Would Violate 47 U.S.C. § 230 as to Free Law Project

Documents are made available on the CourtListener website when CourtListener users download the documents from PACER and use the RECAP browser plugin to automatically upload them to CourtListener. (Lissner Decl. ¶ 4.) Some users presumably did that with regard to Doc. 3009-1, which the Proposed Order would require Free Law Project to delete.

CourtListener is therefore an "interactive computer service" under 47 U.S.C. § 230(f)(2), much as Yahoo! or Yelp are interactive computer services. See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (Yahoo!); Hassell v. Bird, 5 Cal. 5th 522, 540 (2018) (plurality opin.) (Yelp). And, just as Yelp could not be ordered to remove material posted at the direction of a user, Hassell, 5 Cal. 5th at 547; id. at 548 (Kruger, J., concurring in the judgment), so Free Law Project cannot be ordered to remove material posted at the direction of a user. See also Weitsman v. Levesque, No. 19-CV-461 JLS (AHG), 2020 WL 6825687, at (S.D. Cal. Nov. 20, 2020) (stating that "the Court has concerns about ordering third parties, including Twitter, Facebook, Instagram, and YouTube, to take action against Defendant should he fail to remove the material in accordance with the injunction" against Defendant, given § 230, and therefore declining to issue such an injunction against the third parties); Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) (likewise concluding that § 230 precludes orders requiring a hosting service to remove user-posted material); Smith v. Intercosmos Media Group, Inc., No. 02-1964, 2002 WL 31844907 (E.D. La. Dec. 17, 2002) (same); Medytox Solutions, Inc. v. Investorshub.com, Inc., 152 So.3d 727 (Fla. Ct. App. 2014) (same).

The post Attempt to Seal Court Filing, and to Order Members of the Public to Destroy Their Copies, Withdrawn appeared first on Reason.com.

I at first thought not. Naturally, if a citation is critical to the opponent's argument, you'll want to read the case the opponent is citing, and alert the court if the case doesn't actually exist. But many citations are on tangential points, cited for uncontroversial matters; there isn't much reason to try to track them down.

Indeed, even using a tool such as Westlaw's document analysis tool, which can do a good job checking citations in bulk takes at least some time and therefore client money: One needs to not just run the tool but closely analyze any errors it claims to find. And then one would have to spent time and money confirming that they are genuine errors and not typos, since one doesn't want to seem to be making a mountain out of a molehill, and writing up the analysis.

But it now seems clear that quite a few judges do get annoyed not just at the lawyers whose briefs contain hallucinations, but also at opposing counsel who don't warn the court about those hallucinations. I saw this most recently in Landberg v. City of N.Y., where appellate court judges admonished the opposing counsel (to be sure, much less harshly than they admonished the directly offending lawyer); see this video, starting roughly at the 19-minute mark. Here's an excerpt from an article at 404 Media (Samantha Cole):

[T]he attorney [Friscia] representing the owner of the property that faces the sidewalk, stood up before the judges next. He started to speak, but [Presiding Justice Hector] LaSalle wasn't finished with the dressing-down. "He's raising a court of appeal standard that doesn't exist," LaSalle said, interrupting Friscia. "He was using it as a component of his argument, and you didn't think you should bring it to our attention?"

"I didn't notice in particular that the principle of law that he was citing was incorrect," Friscia said.

"I'm sorry, I'm going to give you every opportunity to make your argument," LaSalle said. "But I'm befuddled. I honestly am. I'm absolutely—and I'm not here to—lawyers make mistakes. It's not an easy profession. I don't want to sit here beating up on lawyers, but we rely on the bar so much in what we do. So the first thing that I did, I don't want to speak for my colleagues, but after seeing what he wrote, when I went to your papers, I expected to see something referencing […] It wasn't one case, counsel, it was several cases, and you didn't see fit to bring it to our attention either. It's just striking to me."

Friscia, now with the fear of the bar in him, apologized profusely. "Your honor, I apologize to the court. I will do further due diligence going forward from this point on."

"I hope so," LaSalle said. "You should apologize to your client, not to me."

"Yes, I apologize for that," Friscia said. "And I will, going forward, check every single case, even if it stands for, you know, general principles of law, like the construed liberally to effectuate remedial purpose, and things like that. I will bring them to the court's attention." …

And the judges then turned to the lawyer (Freedman) representing the City of New York:

She got the same questioning from [Justice] Nelson: "So, how do you explain your failure to bring to the attention of this court that a brief was filed with this court by appellant's counsel with apparent fabrications and misrepresentations?"

Freedman tried to explain. "I certainly read the briefs," she said. "I certainly read all of the briefs here, but I certainly didn't focus on it, because it was not our issue. And I do apologize to the court for not catching that, but I tended to focus more on the issue of prior written notice."

In January, I noted three trial court cases taking the same view:

[1.] From Nuvola, LLC v. Wright, decided Nov. 21 by Hennepin County (Minn.) Judge Laurie Miller:

For the reasons the Court has outlined above, the Court finds Mr. Knaak's failure to check the legal authority cited in his brief and his reliance on non-existent case law in his advocacy before this Court raises a question as to whether he breached his duty of competence to Ms. Wright. The Court will refer Mr. Knaak to the Office of Lawyer's Professional Responsibility (OLPR) for appropriate action. Any mitigating factors proffered by Mr. Knaak, including his compliance with his obligation to educate other lawyers about this issue under this Order, may be relevant to a future ethics investigation and any subsequent recommendations by the OLPR, but the Court will not analyze them here as the Court does not make explicit findings on or enforce ethics rules.

The Court also finds troubling Mr. Braun's [i.e., opposing counsel's] failure to identify or bring the non-existent case citations to the Court's attention before the hearing on the motion to compel arbitration. TheCourt should not be left as the last line of defense against citations to fictional cases in briefs filed with the court.

While Mr. Braun did not create or rely on the fake citations, he also did not detect them. Instead, he admitted he did not review the cases cited by his opponent. If he had checked out the citations in the brief to which he was responding, he no doubt would have brought the issue to the Court's attention by the time of the motion hearing, and that would have allowed the Court to take the non-existence of the cited cases into consideration as it heard the argument on the merits of Defendant's motion to compel arbitration, instead of leaving the Court to discover that issue on its own, after the hearing was concluded.

The Court does not find Mr. Braun's conduct to be sanctionable, as he did not cite any non-existent cases to the Court. [Nonetheless], the Court reminds counsel that it is the obligation of counsel on both sides to respond to each other's arguments, including completing a basic cite-check of the cases cited by the other side.

The Court urges all lawyers to take seriously their obligation to ensure that the legal arguments being made and considered by theCourt rest upon good law, not fictional cases dreamed up by a computer. The development of the common law relies upon the accurate citation of existing caselaw, as lawyers and courts analyze new disputes. Infection of the body of caselaw by fake Al-generated citations threatens the integrity of the common law.

The court earlier in the opinion noted (focusing Mr. Knaak's failure to check his own work) that:

Westlaw now provides a tool called "Quick Check" that allows a user to upload a lawyer's own work or the work of an adverse party and quickly identify a list of authorities cited. The Court did not use this tool to discover the non-existent citations, and does not endorse it as a substitute for traditional citation checks. The Court followed the old-fashioned process of looking up the key cases cited by the lawyers, to read them and decide whether it agreed with the parties' reading of pertinent caselaw. However, to the extent a lawyer may wish to conduct a faster citation-check process, the availability of the "Quick Check" tool demonstrates that the investigation required of a lawyer by Rule 11 can be accomplished efficiently through readily available methods.

[2.] Judge Sharion Aycock (N.D. Miss.) reached a similar conclusion in Billups v. Louisville Municipal School Dist.:

The Court also observes that the Defendant … could have flagged the fictious citation and misrepresentation of case law [by Plaintiff's counsel] in a reply brief or supplemental filing. The Court takes this opportunity to issue a charge. Going forward, the Court expects all parties to assist in maintaining the integrity of the judicial process and to be diligent in flagging AI misuse. "[O]therwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law." Elizondo v. City of Laredo (S.D. Tex. 2025).

[3.] And Judge Marina Garcia Marmolejo's order in Elizondo did indeed take the same view:

The Court also observes that Defendant, the City of Laredo, could have flagged these fictitious citations in a reply brief or supplemental filing. Although this oversight does not rise to the level of sanctionable conduct, the Court expects all parties to assist in maintaining the integrity of the judicial process by alerting the Court to such errors. The Court encourages greater diligence in flagging citation errors in the future—otherwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law.

I doubt you'll get sanctioned for not spotting hallucinations in your opponent's work. But it looks like you might get the judge annoyed at you, which is not what you want. So if you have Westlaw, use its Litigation Document Analyzer tool on opponents' filings and not just on your own.

The post Obligation to Cite-Check the Cases Cited by the Other Side and Report Errors to Court appeared first on Reason.com.

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

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

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

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

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

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

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

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

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

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

Shanks also claims:

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

The court allowed Shanks' claim to go forward:

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

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

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

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

Jamie Marie Ito (Ito Law PLLC) represents Shanks.

The post Archaeologist's Libel Claim Over Allegations of "Trafficking in Stolen Native American Human Remains" Can Go Forward appeared first on Reason.com.

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On June 9, 2025, The Guardian published an Article on its website at https://www.theguardian.com/us-news/2025/jun/09/hegseth-wiretap-inquiry-justin-fulcher …. The Article contains numerous false and defamatory statements of and concerning Mr. Fulcher that are attributed to four unnamed sources. These statements include:

1. "Hegseth aide upended Pentagon leak inquiry with false wiretap claims".
2. "ex-Doge staffer Justin Fulcher suggested he had evidence of wiretap that would help investigation".
3. "Days before Pete Hegseth fired three top aides last month over a Pentagon leak investigation into the disclosure of classified materials, according to four people familiar with the episode, a recently hired senior advisor said he could help with the inquiry."
4. "The advisor, Justin Fulcher, suggested to Hegseth's then chief of staff, Joe Kasper, and Hegseth's personal lawyer, Tim Parlatore, that he knew of warrantless surveillance conducted by the National Security Agency (NSA) that had identified the leakers."
5. "Fulcher offered to share the supposed evidence as long as he could help run the investigation, three of the people said. But when he eventually sat down with officials, it became clear he had no evidence of a wiretap, and the Pentagon had been duped."
6. "The problem was that development was not communicated to the White House—so several Trump advisors who were told of the NSA wiretap claim believed that was part of the 'smoking gun' evidence against the three aides fired by Hegseth, until they developed their own doubts."
7. "The Guardian revealed last month that there were unsubstantiated NSA warrantless wiretap claims underpinning the leak investigation, but its origin story and the involvement of Fulcher in the controversy has not been previously reported."
8. "It was not immediately clear why Fulcher chose to become involved in the investigation, but several days after he was replaced as a Doge lead, he went to Kasper and expressed a willingness to help with the investigation, which Kasper attributed to him wanting to prove his worth, two of the people said."
9. "Kasper told Fulcher to go to Parlatore, who had been tasked with supervising and managing the investigation. When Fulcher approached Parlatore, he suggested that he knew of NSA intercepts supposedly showing that Caldwell had leaked using his personal phone, the two people said."
10. "Looking back on the chain of events, three people familiar with the conversations described Fulcher's claims as conveniently dovetailing with prevailing suspicions at the time about Caldwell printing lots of documents and his efforts to have the leak investigation shut down."
11. "Still, a cursory check at that stage into the NSA claims [by Mr. Fulcher] would have shown them to be false."
12. "The claims [by Mr. Fulcher] were relayed to Hegseth and the White House as being accurate."

In truth, Mr. Fulcher never suggested, stated or otherwise communicated to Joe Kasper, Tim Parlatore, or anyone else that the NSA had conducted warrantless surveillance that identified the source(s) of the leak alleged in the Article, or that Mr. Fulcher had access to such surveillance. Further, Mr. Fulcher never asked Joe Kasper, Tim Parlatore, or anyone else if he could join or assist with an investigation into the leak alleged by the Article, nor did he tell anyone that he could "help run" it….

The Guardian acted with at least reckless disregard for the truth, by consciously disregarding readily available information that showed that the false statements were at least highly likely to be false. Among other things, the NSA is prohibited by law from intentionally targeting United States citizens, persons known to be located within the United States and communications in which the sender and recipients are known to be located within the United States. See 50 U.S.C. § 1881a. Further, the NSA is only authorized to conduct electronic surveillance without a court order for the purpose of acquiring "foreign intelligence" that consists of communications exclusively between foreign powers. See 50 U.S.C. § 1802; see also United States v. U.S. Dist. Ct. for E. Dist. of Mich., S. Div., 407 U.S. 297 (1972) (compliance with Fourth Amendment required for domestic national security matters).

The subjects of the purported warrantless wiretaps alleged by the Article, were, at all relevant times, United States citizens and the leak alleged in the Article was to one or more media outlets located within the United States. As such, the NSA could not have conducted the warrantless searches described in the Article. Moreover, Joe Kasper and Tim Parlatore, as senior officials of the Department of War, and the referenced advisors for President Trump, at all relevant times, had full knowledge of the prohibition on targeting United States citizens and those located within the country, and thus the Article's allegations that Mr. Fulcher had informed Kasper (who was terminated from his position with the Department of War before Mr. Fulcher even began working there) and Parlatore of the existence of purported warrantless wiretaps of United States citizens, and that Kasper, Parlatore and advisors for President Trump believed Mr. Fulcher's alleged statements or had been "duped," are implausible.

Further, had the false statements of and concerning Mr. Fulcher been true (which they are not), it is reasonably expected that Mr. Fulcher would have been disqualified from a position with the government, instead of being brought on as senior advisor for the Secretary of War, Pete Hegseth, as acknowledged in the Article. In addition, in relying on the four unidentified sources for the false statements, The Guardian knew, or should have known, that these sources had an obvious bias against Mr. Fulcher because, among other things, and on information and belief, Mr. Fulcher replaced, at least in part, the role(s) occupied by one or more of the sources, rendering these sources and their statements inherently unreliable.

The Guardian, in making the false statements, also unreasonably believed the accounts provided by the four unnamed sources, who, on information and belief, had been terminated from their government positions, over the express denials of Mr. Fulcher, who at all relevant times, remained in good standing with the United States Government, and who spoke to Hugo Lowell, the author of the Article who resides in Washington, D.C., over the telephone prior to publication and provided a detailed explanation (in addition to the statement published in the Article) as to why the statements at issue were false.

Fulcher claims that the article's publication interfered with three business deals that could have yielded up to about $20M in income.

Note that Fulcher is represented by Ryan Stonerock, Steven Frackman, and Dilan Esper (Harder Stonerock LLP). The firm is a prominent libel law firm, and the one lawyer of the three whom I know in some measure, Dilan Esper, is a serious lawyer: He's been cited in various VC posts, and also has often been seen in the comments, where I've generally found his posts to be quite substantive. Of course, the quality of the lawyers is no guarantee that the lawsuit will prove successful.

The post Ex-DOGE Staffer, Ex-Pete-Hegseth Advisor Justin Fulcher Sues the <i>Guardian</i> for Libel appeared first on Reason.com.

From a decision by Judge Fernando Olguin (C.D. Cal.) in Satish Dat Beast v. [Sabrina] Carpenter, filed May 8 but just posted on Westlaw:

On April 9, 2026, Plaintiff filed a Complaint and a Request to Proceed In Forma Pauperis. Plaintiff brings this suit because certain recording artists allegedly "are committing defamation (libel and slander) and/or the dignitary tort of the invasion of privacy by talking about President Donald John [T]rump in a negative manner which could be perceived as violation of the Alien and Sedition Acts." Plaintiff also alleges that the Grammy Awards "have become a public nuisance" and are "committing industrial espionage" with television networks through their programming selections. Plaintiff seeks, among other things, an order precluding Defendants from advertising to him on cable television broadcasts.

No dice, says the court, which had to screen the case because plaintiff sought to sue with a waiver of filing fees.  The court notes that plaintiff (who "often uses the name Ronald Satish Emrit") is a frequent and frivolous litigant, and that the particular complaint's allegations are 'clearly baseless,' 'fanciful,' and 'delusional.'"

The post "Plaintiff Also Alleges That the Grammy Awards 'Have Become a Public Nuisance' and Are 'Committing Industrial Espionage'" appeared first on Reason.com.

Earlier today, in the case of California v. Mullin, the US District Court for the District of Massachusetts issued a decision striking down the Trump Administration's $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers and researchers with a variety of specialized skills). Judge  Leo Sorokin ruled that the plan is illegal because it usurps Congress's power to tax. He relies in part on the Supreme Court's recent decision in Learning Resources, Inc. v. Trump, the tariff case I helped litigate:

The Court begins with Plaintiffs' assertion that the Policy intrudes upon Congress's
taxing power. The first inquiry is whether the $100,000 payment requirement constitutes a tax. The parties quibble about whether the requirement resembles a tax or a "penalty," as characterized by two Supreme Court precedents: Bailey v. Drexel Furniture Company and National Federation of Independent Business v. Sebelius….

Here, the $100,000 payment requirement for all H-1B petitions does not aim to establish that hiring H-1B workers is illegal. The payment is not a penalty, just as the IRS fee in Sebelius was not, because it is not "punishment for an unlawful act or omission." Id. at 567. Hiring workers pursuant to the H-1B program is plainly lawful. Of course, rendering the hiring of H-1B workers "unlawful" would eliminate the program established by Congress through the statute, which would raise a different separation-of-powers concern…

Furthermore, Defendants claim that the $100,000 payment requirement is "a regulatory
payment," which is "not the same as a tax…"  This is mere ipse dixit. Defendants offer no definition for what constitutes "a regulatory payment," cite no cases or statutes employing the term, and advance no reasoned argument explaining how this term encompasses something different than a tax or a penalty….

That does not end the Court's analysis. While the Constitution exclusively vests
Congress with the "Power To lay and collect Taxes, Duties, Imposts, and Excises," U.S. Const. art. 1, § 8, cl. 1, Congress can delegate the taxing power to the executive branch so long as it "clearly" indicates "its intention to delegate." Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 224 (1989). Thus, the relevant inquiry here is whether the provisions of the INA granting the President discretionary powers to regulate the entry of noncitizens reflect a delegation of Congress's taxing power. Under INA § 212(f), the President has the authority to "impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. § 1182(f). INA § 215(a) additionally grants the President the power to impose "reasonable rules, regulations, and orders" as well as "limitations and exceptions" to the entry of noncitizens. Id. § 1185(a)(1).

Plaintiffs argue that these provisions do not confer the power to impose taxes, relying on the Supreme Court's recent guidance in Learning Resources. That case involved a challenge to the President's imposition of tariffs under the IEEPA….. The
IEEPA permits the President to "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any . . . importation or exploration of . . . any property in which any foreign country or a national thereof has any interest" when responding to a national emergency. Id. at 636. The Court found that the IEEPA does not delegate taxing powers to the President, noting that the specific powers listed in the IEEPA do not include "any mention of tariffs or duties." Id. at 642. The Court further noted that the power to "regulate . . . importation" does not encompass the power to tax, because the term "regulate" "means to 'fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule to restriction; to subject to governing principles or laws'"—none of which captures the power to tax. Id. at 642-43…

Applying Learning Resources to the case at hand, the Court finds that INA §§ 212(f) and 215(a) do not delegate taxing power to the President. These sections allow the President to impose "restrictions," "rules," "regulations," "orders," "limitations," and "exceptions" to the entry of noncitizens to the United States. Like the powers delineated in the IEEPA, none of these terms, by their ordinary meaning, include the power to tax.

I agree with the court's analysis, and am glad the tariff case turned out be a useful precedent here. The court also ruled the imposition of the $100,000 fee violates the Administrative Procedure Act.

I have previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.

Obviously, today's decision will almost certainly be appealed, and the legal battle will continue. But, especially after Learning Resources, I am guardedly hopeful the various groups challenging the fee will prevail.

NOTE: In the original version of this post, I  misidentified Judge Leo Sorokin as the late Judge H. Lee Sarokin. I apologize for the error, which has now been fixed.

The post Federal Court Invalidates Trump's $100,000 H-1B Visa Fee as Illegal Usurpation of Congress' Power to Tax appeared first on Reason.com.

Bloomberg Law published an unusual Op-Ed by retired Judge Diane Wood of the Seventh Circuit. Judge Wood discusses the Judge Ross situation, but leaves much out. I think what Wood did not say is far more important than what she did say.

First, here is how Judge Wood describes the facts:

The misconduct was of a personal nature: Judge Ross was engaged in a sexual relationship with a law-enforcement officer whose department regularly appeared before that judge.

If a student at the University of Chicago offered that summary of the case, she would be failed. Judge Ross's sexual activity was appalling, but the most severe transgression was lying to the Chief Judge of the Circuit and the Chief Judge of the District. The closest Judge Wood got to acknowledging the dishonesty was this sentence:

Because Ross ultimately confessed everything and expressed what the committee regarded as genuine remorse…

This is a very roundabout way of saying she confessed to the sex and confessed to lying.

Second, Judge Wood offers no comment about the Eleventh Circuit Judicial Council's decision to issue a private reprimand. The most she will say is that the Judicial Conduct & Disability Committee did not err in affirming that decision.

The JC&D Committee had to decide what would most likely produce the desired result—permanent cessation of that kind of behavior. It also had to decide whether it believed that the judge's remorse and willingness to mend her ways were genuine. Others may have decided differently, but I see nothing here that casts doubt on the genuineness or integrity of the decisions the JC&D Committee made.

Why wouldn't the decision be genuine or have integrity? The relevant question is whether it is correct as a matter of law. But even this question is constrained, as the JC&D Committee's review was limited to a deferential standard. Here is the entirety of the analysis:

In light of our review for errors of law, clear errors of fact, or abuse of discretion, and in deference to the Circuit Judicial Council's consideration of the special committee's review of the evidence, we affirm the Circuit Judicial Council's unanimous decision concluding that the subject judge's actions constituted judicial misconduct. The special committee conducted a thorough investigation and afforded the subject judge all the process that was due under the JC&D Act and the Rules. Accordingly, we find no error of law or abuse of discretion in the special committee's investigatory process. And we conclude that the remedial measures ordered by the Judicial Council under 28 U.S.C. § 354(a)(2)(A) are appropriate and proportionate to the Judicial Council's findings in relation to the seriousness of the misconduct, balanced against the subject judge's correction of the prior false statements and subsequent candor with the special committee, the special committee's assessment that the subject judge is unlikely to engage in similar misconduct in the future, and the subject judge's otherwise exemplary service to the court.

The finding was affirmed based on no "abuse of discretion" or "error of law." This is not exactly a ringing endorsement of the Eleventh Circuit's ruling, which I'll note had no noted dissents--the only name on the document was Chief Judge Pryor. Does Judge Wood think the Eleventh Circuit Judicial Council made the right decision in the first instance? We don't know.

Third, Judge Wood suggested that there are limits on how judges can be reprimanded. She suggests that taking away cases from a judge amounts may be unconstitutional:

Some have argued that this system is unduly solicitous of judges who engage in behavior so obviously unbecoming a federal judge. They contend that, at a minimum, this kind of misbehavior should always be made public. But there is only so far that the Conduct Act can go before it bumps into the constitutional protections for a judge's tenure in office.

Indeed, some think that depriving the judge of her caseload is a de facto temporary removal from office and thus beyond the power of the judiciary. Critically, however, the judge is actually not removed and continues to receive her salary.

Where has Diane Wood been on the Pauline Newman case? Has she published any op-eds criticizing Chief Judge Kimberly Moore? Why did she not join former-Judge Paul Cassell's amicus brief in support of Judge Newman's cert petition?

Fourth, Judge Wood makes it seem like no other punishments were possible. She doesn't state the obvious: the reprimand should have been made public. Judge Ross could have kept her cases, but she would have faced litigants who perceive a plausible conflict of interest. That act would have been punishment by itself.

Fifth, Judge Wood reflects on her own tenure:

As chief judge of the US Court of Appeals for the Seventh Circuit for nearly seven years, I well appreciate the constitutional tight-rope that these cases present.

Chief Judge Wood helmed the Seventh Circuit during the final years of Richard Posner's decline. I think an entire book could be written about how Judge Posner flouted the rules of judicial conduct, yet his colleagues took no public actions against him (See update below). Maybe he should have been given the Pauline Newman treatment so he could spend all of his efforts on writing books. Indeed, Judge Posner's final act after resigning was to publish a bizarre book that attacked his colleagues based on confidential information. I do not think Judge Wood was the right person to comment on failing to take adequate action against a misbehaving judge.

Finally, I mention one last point, with some hesitation. Arthur, Gabe, and I pitched our essay to Bloomberg Law. The editor promptly got back to us and wrote "I don't think this fits into our coverage." Apparently, Judge Wood's non-defense of the courts does fit into the coverage. Go figure.

This entire piece feels forced. I think someone in the judicial apparatus asked a well-regarded, retired judge to defend the handiwork of the Eleventh Circuit. But she couldn't quite do that. She said very little, and reinforced how indefensible the Eleventh Circuit's private reprimand was. I'm not buying it. I've yet to talk to an actual judge who thinks the Eleventh Circuit got it right. If someone wants to defend what the Eleventh Circuit did here, they will actually have to discuss in detail.

I would hope that one of the law clerks who initially blew the whistle opts to appeal this matter to the full Judicial Conference. Chief Justice Roberts cannot simply turn this matter over like a couch cushion.

Update: A colleague wrote, "I just read Judge Wood's op-ed again, and I realized what it reads like: the hostage statement of someone who has been kidnapped." Yes, I agree. Also, how can Judge Wood say with certainty the subject judge was Eleanor Ross, and not even mention the reprimand was private. This situation seems like a fix.

Update #2: In my initial post, I wrote that Judge Wood and her colleague took "no actions" against Judge Posner. I meant to convey that she took no public actions. Indeed, I know Judge Wood took private action concerning Judge Posner because Judge Posner revealed that confidential information in his final book (which was published after he retired, not before, as I erroneously noted). Chapter 2 is titled "I encounter the Code of Conduct." Judge Posner publishes internal emails from Judge Wood concerning the ethics process against him. Here is one excerpt:

Yet on July 13, 2017, the chief judge sent me a copy of a letter she'd recently written to Chief Judge Rebecca Smith of the Eastern District of Virginia, who chairs the Judicial Conference Committee on Codes of Conduct. The letter repeated the chief judge's earlier criticisms of my intention to publish in a forthcoming book (this book in fact) portions (in a few instances the entirety) of orders or memos written by our staff attorneys.

Posner also attacked two of his colleagues, though not by name:

I'm disgusted by all this chatter behind my back by my "colleagues." But that said, I have to admit that I am not above occasionally engaging in such chatter, and that I've decided to note two recent clashes with colleagues, whom however I shall not name.

I've modified my post to say there was no "public action" taken, and also corrected that the book was published after Posner retired.

The post What Judge Wood Did Not Say About Judge Ross's Misconduct (Updated) appeared first on Reason.com.

Professor Paul Finkelman has asked me to post the following guest post, and I am more than happy to do so. Prof. Finkelman is a leading legal scholar and legal historian, and is the President William McKinley Distinguished Professor of Law and Public Policy, emeritus at Albany Law School.

For my part, I will note that I agree with most of his analysis. As a general rule, the government should not be in the business of promoting or discouraging religious observances. But the military presents a special case, because the lives of members of the armed forces (while on duty) are under government control to such an extent, that - in many situations - there is no way for them to practice their faiths unless the government facilitates it in various ways. When the government does that, it should not discriminate between adherents of different religions. What follows is written by Prof. Finkelman, and not me (Ilya Somin):

The Trump administration recently announced that it is removing about 180 religions from those recognized by the Pentagon. This is an obvious violation of the First Amendment's protection of religious liberty. In essence, the Administration has "established" 31 religions as acceptable to the U.S. government and denied religious freedom to members of many other faiths. Plausibly, the Pentagon could decide not to have military chaplains, and not to have religious symbols on military graves, and no longer provide a color guard for veterans  buried in cemeteries tied to particular faiths. It could prohibit military personnel from giving last rites to when those in the military die in combat or a military hospital. Members of the armed services would no longer have their religion on the dog tags. This would presumably not violate the First Amendment because the government would be taking a complete "hands off" policy to religion.

Such a policy  would run counter to the history of the American military starting with the Revolution. It would also undermine the morale of those who put their lives on the line for the nation. In our 250 years as a nation, we have increasingly expanded the range of religions recognized by the military. Initially, all chaplains were Protestant ministers. During the Mexican-American War President James K. Polk appointed two Catholic chaplains, reflecting the changing demographics of the nation. During the Civil War, the Lincoln administration intervened to allow rabbis to serve as chaplains. Today chaplains, whatever their background, are trained to serve members of all faiths. But, with this new rule, policies will change. Dog tags will no longer recognize the faiths of many service personnel. Chaplains may not respect the religious concerns of those who serve. Chaplains, trained to serve people of all faiths, may no longer be able to do so.

The message of the administration is that some faiths matter, and many do not. There seems to be some politics involved here. The "liberal" Unitarian/Universalist Church, which is as old as the nation itself, is no longer officially a church. Nor are churches tied to minorities, such as the Native American Church or the African Methodist Episcopal Church (AME).

This policy is in conflict with the First Amendment, because the President and Secretary of Defense have in fact "established" 31 religions as being legitimate and worthy of government support, and asserted that about 180 are not either "real" religions or worthy of support.

Ironically, the Pentagon announced this on the anniversary of the D-Day invasion in World War II, when about 2,500 American men (and another 2,000 allies from Canada, Great Britain, and other allies) died. Some of those who died were probably members of faiths that the Pentagon no longer recognizes as "real" religions.

This slap in the face to Americans of minority faiths (and their families) who have died for our country is a direct assault on the Constitution. Among those religions that have now been cancelled by the administration (making it the leader of cancel culture in America,) are some of our most venerable faiths including Congregational Churches, the United Church of Christ, Unitarian/Universalist, Disciples of Christ, Mennonite, Moravian, Dutch Reformed, Adventist churches (other than Seventh Day Adventists), African Methodist Episcopal (AME), AME-Zion, the Native American Church, traditional tribal religions, and Deists  In addition, religions practiced by many people who landed on our shores from the mid-Nineteenth to the present, such as Confucianism, Coptic, Druze, Zoroastrianism, and Santeria, which are no longer recognized as religions.

Some of the designations on the list seem utterly weird and arbitrary. The list of acceptable faiths includes many that are designated "Christian," with the name of a denomination after that term. However, the list does not designate the Church of Jesus Christ of Latter-day Saints (LDS) as Christian. That would probably come as a great surprise to the more than six-and-a-half million members of the Utah based Church. As the Church notes on its website:  "Members of The Church of Jesus Christ of Latter-day Saints unequivocally affirm themselves to be Christians."

By denying that members of the LDS Church are Christians, the administration is taking sides in a complicated theological debate between some Christian theologians and LDS theologians. This is emphatically not a debate in which the Pentagon, the President, or the federal government should take sides. This decision has also infuriated political leaders and LDS Church leaders in Utah.

However, even as it recognizes the LDS Church based in Utah, the list does not include the Reorganized Church of Jesus Christ of Latter Day Saints, which for last quarter century has called itself Community of Christ, based in Missouri. Thus, Secretary Hegseth and President Trump have not only declared that Mormons are not Christians but have also decided which is the "real" Mormon Church. This is a type of establishment determination that the First Amendment prohibits.

This new policy is being implemented while the President and his administration are gearing up to celebrate the 250th anniversary of the Declaration of Independence. The policy is a direct refutation of the American Founding and insult to the memory of many of the most important Founders of our nation. At least a dozen of the signers of the Declaration of Independence, including its most important co-authors, practiced faiths that the Secretary of Defense and the President have decided are not "real" religions, or at least religions worth of respect.

In 1776 the Continental Congress appointed a five person committee to write the Declaration of Independence. Three were members of faiths that Donald Trump and his minion, Pete Hegseth, have just cancelled. John Adams was a Unitarian and Thomas Jefferson and Benjamin Franklin were Deists. The President and his Secretary of Defense want to cancel other signers as well. Benjamin Rush was a Deist, like Franklin and Jefferson. John Bartlett, a signer from New Hampshire, is buried in a Universalist graveyard. At least seven signers were members of Congregational Churches, including such significant founders as Roger Sherman, Oliver Wolcott, and Robert Treat Paine. These denominations can still be found in the United States, but not in the new Trump/Hegseth military. Most Congregational Churches morphed into the United Church of Christ (UCC) in the late twentieth century which today has more than 4,600 churches, but the President and Secretary of Defense have also canceled that. [Secretary Hegseth does list the "Church of Christ" as an acceptable religion, but that is a different denomination from the UCC.]

After the Declaration of Independence was signed, Americans of all faiths fought for the cause. The current administration has cancelled the faith of Major General Philip Schuyler, the commanding officer of the New York militia (and the father-in-law of Alexander Hamilton), because he was Dutch Reformed. Major General Israel Putnam, a New Englander, could not have a dog tag that states his faith, because he was a Congregationalist.

Trump and Hegseth want to cancel numerous presidents because of their faith. In addition to John Adams and his son John Quincy Adams, Millard Fillmore and William Howard Taft were also Unitarians. Taft, a conservative Republican, was Secretary of War (when that was actually the real name of the department) and then President. He later served as Chief Justice of the United States. He is buried in Arlington National Cemetery. It is not clear if that could happen today since the military no longer recognizes the Unitarian faith. Nor does it recognize the Dutch Reformed faith of Presidents Martin Van Buren and Theodore Roosevelt. Col. Roosevelt is remembered for leading a regiment he organized, the Rough Riders, in the Spanish American War. Today Secretary Hegseth might let him command troops, but the Army would not recognize his faith as a "real" religion. President James A. Garfield, who was also a major general in the Civil War (and led troops at Shiloh and Chickamauga) was a member of the Disciples of Christ. Lyndon B. Johnson, who was a Commander in the Navy in World War II and a reserve officer for more than two decades after the War, was also a member of the Disciples of Christ. But you won't find a minister from that faith in today's Army, Navy, Air Force, Marines, and Coast Guard. Trump and Hegseth have cancelled it.

During World War II the Navajo Code Talkers risked their lives as Marines, providing real time intelligence of Japanese troop movements, while speaking on radios in Navajo. Many code talkers were members of the Native American Church or a traditional Navajo faith. In Europe, about 10,000 American soldiers of Japanese ancestry served the Nisei Brigade, the most decorated unit in American military history. More than 4,000 of these Japanese-American soldiers were awarded purple hearts for their combat wounds and more than 4,000 also earned a bronze star and other medals for valor, including the Congressional Medal of Honor. Some of these courageous soldiers followed the Shinto faith. At the same time, the separate unites of the Tuskegee airmen earned three Distinguished Unit Citations while individual Tuskegee airmen earned more ninety-five distinguished Flying Crosses, many purple hearts, and more than 750 other medals for their heroism. The Tuskegee fighter escorts lost, on average, about half as many bombers as other escort units. Many of these airmen were members AME and AME-Z churches. But, the faiths of the code talkers, the Nisei Brigade and the Tuskegee airmen are now verboten by orders of Trump and Hegseth.

The Hegseth/Trump announcement – on the anniversary of D-Day – loops us back to the insult to followers of religions that the United States no longer honors or recognizes. Among those landing at Normandy was 56 year old Brigadier General Theodore Roosevelt, Jr., the son of the President Teddy Roosevelt. He was the oldest soldier, and the only general, to land at Normandy on D-Day. Although suffering from arthritis and heart disease he led his troops with distinction until he died of heart failure in July. He received the Congressional Medal Honor, posthumously, for his incredible leadership at Normandy. But today, the historic religion of his family—the Dutch Reformed Church—along with the faiths of tens of thousands of other veterans, has been removed from our military.

We honor Ben Franklin, John Adams, and Thomas Jefferson, Presidents John Quincy Adams, Van Buren, Fillmore, Garfield, Teddy Roosevent, and Taft, the Navajo Code talkers, the Niese Brigade, the Tuskegee Airmen, and General Teddy Roosevelt, Jr., for their patriotism and courage. It is a sad day that the President and his Secretary of Defense dishonor their religions and their faith.

The post The Pentagon's New War - Canceling American Religion and American History appeared first on Reason.com.

Media reports indicate that Brown University Professor Gordon Wood passed away at the age of 92 yesterday, apparently killed by a passing car while walking. Wood was the greatest historian of the Founding era and the ideology of the American Revolution, author of such seminal works as The Creation of the American Republic and The Radicalism of the American Revolution, among many other important works. He had an enormous influence on generations of historians, legal scholars and many others.

In addition, his work on the universalist Enlightenment liberal political ideals of the Revolution and the Founding is a compelling antidote to both right-wing ethno-nationalists (who envision the US as a nation based on ties of race, ethnicity, and culture), and far-left claims that the Founding was primarily about promoting slavery and white supremacy.

I had a slight acquaintance with Wood, whom I met at a couple of academic conferences. I wish I had known him better. He will be greatly missed.

In Prof. Wood's honor, I repost an excerpt from one of his last public speeches, a talk he gave at the American Enterprise Institute last fall (I previously wrote about the speech and its significance here). Wood's message is vitally needed today, as much as ever:

I want to say something about the Declaration of Independence and why it is so important to us Americans.

There has been some talk recently that we are not and should not be a credo nation, that beliefs in a creed are too permissive, too weak a basis for citizenship and that we need to realize that citizens who have ancestors that go back several generations have a stronger stake in the country than more recent immigrants.

This is a position that I reject as passionately as I can. We have had these blood-and soil-efforts before, in the 1890s when we also had a crisis over immigration. Some Americans tried to claim that because they had ancestors who fought in the Revolution or who came here on the Mayflower, they were more American than the recent immigrants….

The United States is not a nation like other nations, and it never has been. There is at present no American ethnicity to back up the state called the United States, and there was no such distinctive ethnicity even in 1776 when the United States was created….

Because of extensive immigration, America already had a diverse society. In addition to seven hundred thousand people of African descent and tens of thousands of native Indians, nearly all the peoples of Western Europe were present in the country. In the census of 1790 only sixty percent of the white population of well over three million remained English in ancestry…

When Lincoln declared in 1858 "all honor to Jefferson," he paid homage to the Founder who he knew could explain why the United States was one nation, and why it should remain so. Half the American people, said Lincoln, had no direct blood connection to the revolutionaries of 1776. These German, Irish, French, and Scandinavian citizens either had come from Europe themselves or their ancestors had, and they had settled in America, "finding themselves our equals in all things." Although these immigrants may have had no actual connection in blood with the revolutionary generation that could make them feel part of the rest of the nation, they had, said Lincoln, "that old Declaration of Independence" with its expression of the moral principle of equality to draw upon. This moral principle, which was "applicable to all men and all times," made all these different peoples one with the Founders, "as though they were blood of the blood and flesh of the flesh of the men who wrote that Declaration…." This emphasis on liberty and equality, Lincoln said, shifting images, was "the electric cord. . . that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world."

In Jefferson's Declaration Lincoln found a solution to the great problem of American identity: how the great variety of individuals in America with all their diverse ethnicities, races, and religions could be brought together into a single nation. As Lincoln grasped better than anyone ever has, the Revolution and its Declaration of Independence offered us a set of beliefs that through the generations has supplied a bond that holds together the most diverse nation that history has ever known.

Since now the whole world is in the United States, nothing but the ideals coming out of the Revolution and their subsequent rich and contentious history can turn such an assortment of different individuals into the "one people" that the Declaration says we are. To be an American is not to be someone, but to believe in something. That is why we are at heart a [creedal] nation, and that is why the 250th anniversary of the Declaration next year is so important.

I extend my condolences to such of Professor Wood's family, friends, and colleagues as may read this post. His passing is a terrible loss.

The post Gordon Wood, RIP appeared first on Reason.com.

Yesterday's lead story in the NY Times is headlined:

Trump Keeps Immunity from I.R.S., a Victory in a Long-Running Feud

Subhead: "Even as they rebelled against a $1.8 billion fund for President Trump's allies, Republicans looked the other way as his administration granted him potentially lucrative tax protections."

The article notes that plans for the Trump-Blanche $1.776 billion Slush Fund were abandoned due to "Republican anger," but:

"Not so for the sweeping protections from I.R.S. audits that Mr. Blanche also ordered up for Mr. Trump and his family. On that front, Republican reaction has been much more muted, and Mr. Blanche said the audit shield would stay in place. . . .  The result is that an apparently unprecedented and enormously valuable public benefit for the president has, so far, flown under the radar in Congress and passed into Mr. Trump's hands without much protest from members of his own party."

It is indeed a shame that the Republicans have not spoken out against this part of the Trump-Blanche deal.

But we should not fall into the trap of talking as though Blanche has already conferred some kind of "immunity" – or an "audit shield" – on Trump. He has not. He's certainly been trying to do so, but because he is not authorized to do so, his attempt is of no force and effect.

Take a close look at the document that purports to give Trump and his family a shield against IRS actions.  It is dated (and was publicly posted) on May 19th – the day after the parties in Trump v IRS executed their so-called "Settlement Agreement," which contains no mention of any waiver of IRS claims, or immunity, or "audit shield," or anything remotely similar.

The May 19th document, signed by Todd Blanche, the Acting A.G., states two facts in the first paragraph: that the May 18th Settlement Agreement (1) "has created the Anti-Weaponization Fund," and (2) has "directed the Attorney General to issue an order establishing funding and any other relevant requirements for the Fund."

Both are correct; the May 18th Settlement Agreement, by its express terms, did both of those things.

Then, after declaring that capitalized terms in the May 19th order have the same meaning as in the Settlement Agreement, the entirety of the document reads as follows (I have broken up the single sentence of the waiver provision into its component parts, just for ease of comprehension; any omitted text is marked by ellipses):

The United States

RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs [i.e., President Trump, his sons, and the Trump Organization] from,

and is hereby FOREVER BARRED AND PRECLUDED from prosecuting or pursuing,

any and all claims . . . or requests for any relief . . . whether presently known or unknown, that . . . have been or could have been asserted by [the IRS] against any of the plaintiffs . . . by reason of, in connection with, or which arise out of …

any matters currently pending or that could be pending (including tax returns filed before the Effective Date) before [the I.R.S.] or other agencies or departments. [Emphases added]

Well!

Where does Todd Blanche get the authorization to grant a waiver like this?! To anyone, let alone to his boss, the President of the United States?

The May 19th document itself is strangely silent about the answer to that question – unusually so, for an AG Order. It implies – though, oddly, and rather suspiciously, it does not come out and actually say – that it represents the "order" contemplated in the May 18 Settlement Agreement.  You remember – the one that the AG is directed to issue in order to "establish funding and any other relevant requirements" of the Anti-Weaponization Fund.

Even Blanche must recognize how ridiculous that argument is.  A waiver of claims against Trump has absolutely nothing to do with establishing or funding or operating the Anti-Weaponization Fund. And besides -- isn't the Fund being abandoned?  So the May 19th document is an Order establishing a Fund that we're not establishing?  That's absurd and confusing.

So the May 19 document isn't that order.  What is it, then?

It could be part of the settlement terms, which falls within Blanche's inherent authority to conduct litigation on behalf of the United States, and to settle claims where it is in the interest of the United States to do so. The waiver, then, is part of the "settlement terms."

Blanche himself seems confused about that. He is adamant in his testimony before the House Appropriations Committee: the May 19th document is not an "Addendum" to the Settlement Agreement. "It is a separate Attorney General Order." [see the video starting at around 44:30].  But a minute or so later he describes the May 19th document this way:

"There's a settlement. Part of the Settlement includes the [May 19th ] Order. … There's a Settlement the IRS entered into with President Trump and others, his family and his companies.  As part of that Settlement, as is customary in IRS Settlements, there's a separate AG Order."

Damned if I can figure out what he is talking about.

If the May 19 waiver order is not part of the Settlement, what is it?  If he's not issuing that in order to settle Trump's claims, where does he get the power to waive, forever, claims the United States may possess?  It's like the power to issue pardons – except, of course, the Attorney General doesn't have the power to issue pardons.  He can say "The United States waives . . ."; he can even put it on DOJ stationery and post it on the DOJ website, and he can sign it as the Acting AG – none of that gives it any legal effect whatsoever unless he has been authorized to take such action on behalf of the United States. If he has not been authorized to take such action, the "order" has the same legal effect as an entry in his private diary.

And if it is part of the "Settlement"?  That deal doesn't pass the hoo-haw test. Trump gives up his time-barred claims worth $0.00, in exchange for a $1.776 billion fund under his control PLUS a waiver of all tax or other claims against him, his sons, and his companies?

My guess is that Acting AG Blanche doesn't want to have to defend that deal when he comes before the Senate. Nor does he relish the opportunity to explain to a waiting world why the very significant waiver clause was omitted from the actual Settlement Agreement signed by the parties. Had the parties - and their lawyers, including the DOJ lawyers - just forgotten about it? Slipped their collective mind?

That's laughingstock stuff.

Trump v. IRS wasn't an actual case, because an actual case requires parties who are adverse to one another. There's a docket entry somewhere labeled "Trump v. IRS," of course, but that doesn't make it a valid or viable case.  The case can't be "settled," because it never actually existed as a case. Whatever legal effect the document labeled "Settlement Agreement" may have, it doesn't "settle" any case because there was never any case to settle.

So what about this thing that Todd Blanche posted on May 19th?  What is it? and What legal effect does it have?

I don't know. It's not part of a case settlement, and if it's not part of a case settlement Blanche has no authority to issue it.  So it's nothing.  A nullity.  It's not an immunity, or a waiver of the IRS's rights, or an audit shield.  It is just a figment of Todd Blanche's imagination, and we should treat it and speak of it accordingly.

The post Stop Calling it an Immunity! There's No Immunity! appeared first on Reason.com.

Few principles in our history and traditions are as deeply rooted as the sanctity of the family. Fit parents, and not the government or anyone else, have the right and the corresponding responsibility to direct their children's upbringing and to be their children's primary source of protection and guidance.

At the same time, a parent's inability or unwillingness to satisfy basic, minimum standards of care can lead to abuse or neglect, which justifies governmental intervention to protect the children. The desired outcome of that intervention is a family's rehabilitation, the restoration of wayward parents to their proper roles, and the government's exit from the family's affairs.

In extreme cases, however, parents can forfeit their parental status altogether. When that happens, the government invokes the judicial process to pursue the termination of parental rights, after which parents and their children become strangers in the eyes of the law.

The strong presumption is that termination is not in a child's best interest, so a parental-termination order must always be a last resort and never a first impulse. Such an order risks offending the laws of nature and is impermissible under the laws of the United States and of Texas absent clear and convincing evidence both that the parent failed to discharge his obligations to his child and that the termination of parental rights is in the child's best interest. These heightened standards are required because termination affects the fundamental rights of all involved—not just of parents to their children but also of children to their parents.

This case requires us to apply these principles with respect to a married couple with three children. The government sought termination of both parents' rights to each child. A jury determined that the requisite grounds for termination had been proven as to both parents, and the trial court rendered judgment accordingly. The court of appeals affirmed. We likewise affirm as to Father, but we hold as a matter of law that the government has failed to establish that termination of Mother's rights is in the children's best interest. As to Mother, therefore, we reverse and render.

There's a lot going on in the opinion, which is nearly 10K words long, but here's a quick summary of the argument as to mother, with an interesting discussion related to divorce:

In this case, there were no allegations that Mother directly harmed any of the children or failed to care for them. Rather, the focus at trial was on Father's violence and Mother's ability or inability to protect the children from him. But when a parent's rights may be terminated based on a spouse's violence, the department should proceed with particular caution—especially when the spouse's violence is not directed at the children.

The principle from Lewelling [an earlier precedent] that a woman should not lose her child just because her husband abused her points to a grim reality—the dilemma faced by battered mothers who must choose between enduring the abuse or risk losing their children by seeking help…. [T]he record before us does indeed reveal that Mother is in this predicament primarily because of Father's actions, not because of her own faults.

True, in the early days after the removal of her children, Mother was reluctant to cooperate with the department and was defensive of Father. She believed that the department made "false accusations" and "like[d] to distort things that come out of your mouth to where it fits them." And Mother would not agree, at first, to prevent Father from contacting the children when only she was supervising.

By the time of trial, though, the situation was markedly different. Mother now understood that Father's self-harm and domestic violence posed risks to the children, as voluminous undisputed testimony, most prominently from the department's own counselors and providers, made clear. The evidence showed that she understood her obligation to ensure that the children were not subjected to danger from Father going forward, that she was committed to complying with that obligation, and that she was capable of doing so even though she obviously hoped that Father's own progress would greatly diminish the likelihood that she would need to undertake protective actions. All this evidence directly addresses the legally relevant question: not whether Mother is a victim of abuse herself, or whether Mother is unwilling to sever a relationship with her own husband despite departmental disapproval of such a choice, but whether Mother can and will protect her children, including from her husband and their father if necessary.

Moreover, to the extent that Mother did not demonstrate her willingness to prioritize her children as persuasively or as quickly as she might have, that was at least in part due to the lack of clarity in what the department intended to achieve and what it required of her. At an earlier hearing, the department's specialist unequivocally agreed that her goal was "to preserve the family unit and let the kiddos remain in the care and custody of at least one parent." The attorney ad litem had also urged the parents to "get the help that they need so that these children can return home."

And the parents participated in couples counseling aimed at reconciliation and family reunification as part of their mandatory, court-ordered services. In other words, the department was signaling to Mother that she needed to work on her relationships with her husband and her children so that they could all be reunited.

At the same time, however, the department's case against Mother was premised on her alleged unwillingness to separate from Father. For example, in its closing argument, the department condemned Mother because she "did not kick [Father] out" and because "she's still with him." And Mother's connection to Father was the lead point in the attorney ad litem's closing argument: "[Mother], she's going to choose her husband above all…. How do we know this? Well, we know this because, for one, you've seen no affirmative action from her to do anything else. They're still together." The department's brief in this Court repeatedly refers to concerns about "Mother's and Father's enmeshed relationship." Married people typically have "enmeshed" relationships, which is in fact close to the very definition of marriage and what it requires.

To be clear, and as the department acknowledged during oral argument, this Court's precedent forecloses the department from demanding that Mother (or any parent) choose between divorcing her husband or losing her children. But the department's arguments come perilously close to that line. They may well have crossed it at trial, and it appears that a major reason the court of appeals affirmed the best-interest determination as to Mother was that she had not permanently left Father and divorced him.

We reiterate that neither the department nor any court of this State may, in the name of the People of Texas and their laws, demand divorce as a precondition for maintaining parental rights. A mother unfortunate enough to have a husband from whom their children must be protected cannot invoke the marriage to exempt herself from the duty of protecting the children, of course, and that may sometimes even leave her with little option but to see her husband only when the children are not present. But the government may never condition her status as a parent on her willingness to pursue divorce.

Imposing a demand for divorce is unlawful, and imposing such an unlawful demand sub silentio is even worse than demanding it overtly. This case reflects the problem that can arise if the real goal—to separate a married couple—is communicated only indirectly, while a demand for the couple to reunite and thrive is made overtly. Generating such cognitive dissonance creates independent problems related to due process because parties cannot be expected to comply with orders that they cannot reasonably understand.

There is every indication here that Mother never understood exactly what the department wanted. The testimony of one of the parents' counselors exemplifies this point with particular clarity. The counselor testified that he firmly believed that the children would not be endangered if they were returned to Mother. When the attorney ad litem asked him whether Mother had taken any actions to show that she would choose her children over Father, the counselor responded, "She hasn't been put in that position yet to make a choice." When asked to clarify, the counselor explained,

She's trying to work it out with her husband, and then, you know, she wants to know what the CPS wants to do—that y'all make a choice and she'll choose her children….

I guess she was waiting to see what y'all wanted—do y'all want them to split up? Do you want them to stay together?

If she had a choice of either, A, getting the kids back or, B, staying with [Father] and not getting the kids back, she would leave.

So if even the counselor whom the department paid to work with Mother could not ascertain what the department's position really was, it is hardly surprising that Mother did not. Indeed, it is possible that even the department itself did not really know which of two opposing directions it expected Mother to choose….

Our judgment in Mother's favor does not mean that the department must immediately return the children to Mother and have no further contact with her or the children. The record before us does not indicate what has happened since trial. It is at least possible, for example, that Mother is currently in no position to care for the children. If restoring them to her physical custody does not pose any such risk, however, that restoration should proceed; if material risks exist, the department has the legal tools it needs to ensure the children's protection with the least amount of invasion into the family as possible.

In any event, in light of our disposition of Father's appeal, Mother will be the children's sole legal parent. That means that once the children are restored to her custody it will be up to Mother, and not Father, to determine whether and to what extent he plays a role in the children's lives. She will have the same authority as all other parents concerning interactions that her children have with others.

And she will have the same solemn responsibility as all other parents, too, so if Mother endangers the children in the future, the department may assess whether it would be appropriate to seek relief—potentially including termination—based on that future behavior. But the department must now recognize Mother as the children's parent, with all the rights and obligations that status entails….

Justice Debra Lehrmann, joined by Justices Jane Bland and Rebeca Aizpuru Huddle dissented, and would have accepted the jury's verdict as to the mother. For those who count such things, here all five male Justices who participated voted to restore the mother's parental rights, and all three female Justices voted to uphold the terminate of the mother's rights. (One of the nine Justices didn't participate in the decision.)

The post Government May Not "Demand Divorce as a Precondition for Maintaining Parental Rights" appeared first on Reason.com.

Liane, who goes by Liana Shanti, founded her company, LMN, which is used to operate online educational courses that aim to improve students' businesses, lifestyles, and overall wellness. On Plaintiffs' website, Liane markets herself as a "world renowned thought leader in quantum energy healing, spiritual psychology, nutrition, emotional transformation, and feminine wealth[.]" She has more than 35,000 social media followers and more than 100,000 customers in 90 countries….

Defamatory statements about Plaintiffs started surfacing online around April 2022 after Haley began to speak out on her own social media accounts about abuse she allegedly experienced. Plaintiffs allege that Defendants have made false and damaging factual statements about Plaintiffs, including accusations of running a cult, human trafficking, extortion, fraud, and other misconduct. The statements that Plaintiffs claim are defamatory can be organized into three categories as described below. Specific statements will be included within the Court's analysis.

There's a lot going on in the opinion, which is >15K words long. But here's one particular item that's a bit out of the ordinary for a libel case; it's about defendant Paula Haygarth's counterclaims against plaintiff, on which Haygarth sought summary judgment:

[A]n Instagram account username, @lianashanti, posted the following statements, verbatim {emphases added}:

• "MEET PAULA HAYGARTH. WE HAVEN'T FORGOTTEN ABOUT HER. SHE'S ONE OF THE LEAD PEOPLE TRACED DIRECTLY THROUGH IP ADDRESES AND KNOWN EMAILS TO REDDIT AND THE OTHER FRAUD WEBSITES IN THE 30+ PAGE INVESTIGATIVE REPORT. SHE IS A DARK REIKI PRACTITIONER WHO HAS PRACTICED EXTENSIVE BLACK WITCHCRAFT ON MALIE'S DAUGHTHER'S SHE – NOT SURPRISINGLY – HAS THE SAME ATTORNEY AS BYRON HORVATH. THEY ARE NOT FRIENDS, JUST AN UNHOLY ALLIANCE."
• "Jesus, we ask you to DELETE AND DESTROY all toxic lies from this satan servant – PAULA HAYGARTH – who is campaigning to invalidate truths of #childabuse to cover up her own misery. She is hateful and envious, and in her hatred and envy, she cannot bring herself to acknowledge the pain of all the children who have been harmed by their parents. She abandoned her own son Austin, and her guilt and shame have turned her into a soldier of satan."
• "What WE are doing – this JESUS LED community calling out THESE people … Paula Haygarth … This vile group of PEDOS[;] PEDO SUPPORTERS[;] PEDO ALIGNERS[;] VICTIM BLAMERS … Paula Haygarth."

[i.] Dark Reiki Practitioner/Witch

First, describing Paula as a dark reiki practitioner and witch is not susceptible to defamatory meaning. Like Liane, Paula is also a spiritual leader. Although Paula denies being either a "dark reiki practitioner" or practicing black witchcraft, she does not deny generally practicing reiki and—though not explicitly argued by Plaintiffs—there is context to believe Paula used to practice reiki.

Thus, Liane's characterization of Paula's reiki practice as "dark" can be interpreted as opinion, at least for purposes of the instant motion. Her rhetoric is more figurative and there is no real way to prove whether Paula's reiki practice is "dark." Similarly, Liane likens reiki to witchcraft, so accusing Paula of practicing "black witchcraft" is also an opinion. Summary judgment is DENIED on these statements.

[ii.] Manipulative and Dishonest

Second, being called "manipulative and dishonest" is an opinion statement that supposedly explains why Paula loses friends. That statement is further unable to be proven true or false because it speculates on why other unidentified people may have ended friendships with Paula. Thus, summary judgment is DENIED on this statement.

[iii.] Pedo/Pedo Supporter

Third, the statement that Paula is a pedo/pedo supporter presents a more difficult challenge. In context, the Instagram post lists a group of about 25 names, including Byron and Stefanie, who are allegedly "pedos/pedo supporters/pedo aligners/victim blamers." Paula, of course, denies being any of these. And Plaintiffs' arguments regarding these statements are a moving target. On the one hand, Plaintiffs appear to suggest that the statement is substantially true:

The subject social media post is a prayer and religiously framed condemnation of a collective "Silencing Group" describing them as "PEDOS PEDO SUPPORTERS PEDO ALIGNERS VICTIM BLAMERS" which included a convicted pedophile, Anton Hein, persons who support pedophiles .. and family members and allies like Paula Hagarth who align with the accused abusers and attack those who disclose abuse.

But in the next breath, they say that this "prayer concerning Paula Haygarth reflects negative feelings towards her but it should not be construed as a statement that Ms. Shanti believes that Paula Haygarth is a "PEDO" or "PEDO SUPPORTER."

To the extent that Plaintiffs attempt to argue that the statement is not defamatory, the Court disagrees. A reasonable person is likely to read the statement for what it is—an accusation that the people on the list are pedophiles or support pedophiles. This is not just a matter of hyperbolic rhetoric that is totally unrelated to the contextual conflict. Here, the post is literal and Plaintiffs even state that at least one person on the list is a pedophile.

On the other hand, there is at least some, albeit spare, evidence in the record that Paula may have associated herself with pedophiles through her involvement with the anonymous Liana Shanti Cult Recovery group, particularly because Plaintiffs have accused Byron of abusing his child. While associating with a pedophile wouldn't necessarily suggest support for him, because the Liana Shanti Cult Recovery group disputes the abuse accusations, participating in the group's efforts arguably means supporting alleged pedophiles within it. Thus, there is a triable issue as to whether the statement is substantially true and not defamatory. The Court therefore DENIES summary judgment on this statement.

[iv.] Abandoned Child

Next, Plaintiffs have accused Paula of abandoning her child. Plaintiffs do not contest that the statement is defamatory, which the Court considers a concession. Indeed, the Court finds that this statement is verifiable because Paula either did or did not abandon her child and such accusation would subject Paula to ridicule or scorn.

Paula unsurprisingly denies that she abandoned her son. Although the claimant bears the burden of proving falsity and thereby must show "evidence is so powerful that no reasonable jury would be free to disbelieve it," the Court is satisfied Paula has met this burden, particularly because Plaintiffs offer no evidence of its truth…. Plaintiffs do not dispute making the statement and have not even bothered to justify or explain why it was made, let alone provide facts that create a triable issue here.

Furthermore, without being able to provide facts to establish whether Paula abandoned her child is substantially true, Plaintiffs were at the very least negligent in publishing that statement. In sum, Paula has established defamation per se and Plaintiffs have not countered this with any triable facts. The Court GRANTS summary judgment in favor of [Paula] on this statement. The question of damages will be left for trial.

[v.] Satan's Soldier

Although Plaintiffs don't squarely address Defendants' argument that the comments characterizing Paula as "Satan's soldier" were made maliciously, it is not totally clear from the Counterclaim MSJ that Defendants argue the statement is verifiable. At the Hearing, counsel for Defendants contended that Satan worshippers are real, and that, as such, the statements are capable of being proved true or false. But the Court finds that the figurative and hyperbolic nature of the post negates the impression that Liane was asserting an objective fact that Paula (or the rest of Defendants) were Satan's soldiers, particularly when the Court must consider the facts in the light most favorable to the non-moving party. Summary Judgment is DENIED as to this statement….

Because, as outlined above, the Court finds that some of the statements Defendants sought summary judgment on are not susceptible to defamatory meaning as a matter of law, the Court denies Defendants' Counterclaims Motion in part. However, Plaintiffs did not move for summary judgment, so they have not met their burden to obtain summary judgment in their favor for counterclaims related to those statements. Thus, those statements for which the Court denied Defendants' Counterclaim MSJ shall still proceed to trial….

The post How Do You <i>Know</i> She Is a Witch? Or Satan's Soldier? appeared first on Reason.com.

• 5 of the cases involve wrongful death claims, as follows, Raine (age 16), Lacey (age 17), Shamblin (age 23), Enneking (age 26), Ceccanti (age 48).
• 2 of the cases involve minors, as follows, Raine (age 16) and Lacey (age 17).
• 4 of the cases involve negligence claims based on negligence per se theories.
  • All of these (Lacey, Shamblin, Enneking, and Ceccanti) allege violation of California Penal Code § 401(a) (deliberate aid and encouragement of suicide); and
  • 1 of these (Shamblin) alleges violation of California Penal Code § 192(b) (manslaughter).

The motion lays out some of the general theories, and gives more details on each of the eight cases. (Presumably the other four cases were added on separately; the motion was filed Nov. 14, 2025, and the coordination hearing was on Jan. 30, 2026.)

The post The 12 Cases Consolidated as <i>ChatGPT Product Liability Cases</i> in S.F. Superior Court appeared first on Reason.com.

On August 15, 2025, this Court entered a Temporary Injunction Order enjoining Mr. Shulgin from using, uploading, disclosing, or transferring CTC Confidential Information—defined as photographs or videos of, or other information describing, the construction or design of any of CTC's artificial-intelligence data facilities—and ordering him to submit his devices for forensic imaging….

The Court finds that CTC will suffer ongoing, irreparable harm as long as CTC Confidential Information remains publicly accessible on the internet, as such disclosure deprives CTC of a competitive advantage regarding the construction of its artificial-intelligence data facilities, for which no adequate remedy at law exists.

Based on the foregoing findings, IT IS ORDERED that any and all photographs, videos, or other CTC Confidential Information posted by or at the direction of Defendant to Google Maps, or to any other publicly accessible internet platform, shall be removed. Plaintiff CTC Property LLC is authorized to serve a certified copy of this Order on Google LLC and/or any other internet service provider or platform hosting CTC Confidential Information posted by or at the direction of Defendant, and such entities shall comply with this Order.

Google LLC, its subsidiaries and affiliates, and any other person or entity with notice of this Order who is in possession of, or has the ability to remove, the CTC Confidential Information identified herein, are directed to remove such materials upon service of this Order and identification of the specific content by Plaintiff within 72 hours of service of this Order.

The Complaint alleges that "Shulgin – with both a Russian and U.S. online presence – used his former position as a technician subcontractor to misappropriate CTC's confidential information to take photos … of the inside workings of a data center CTC is building in Memphis, Tennessee." Seems pretty clearly unconstitutional and otherwise improper as to Google, who wasn't made a party to the case (see here for more on the general legal questions raised by such orders aimed at third parties). But in any event, it struck me as worth noting.

The post Texas Court Orders Google to Remove Information Posted by User Regarding xAI-Linked Data Center appeared first on Reason.com.

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On June 2, the Fifth Circuit decided United States v. Squire, which posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation."  As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…."

Suspecting him of involvement in a shooting in New Orleans, police secured a warrant to search the home of Curtis Squire, where they found a handgun.  While the handgun was not found to have been used in the shooting, Squire was charged with felon-in-possession, 18 U.S.C. § 922(g)(1), based on his prior convictions of conspiracy and substantive counts of possession with the intent to distribute heroin, possession of a firearm with a controlled dangerous substance, and obstruction of justice.  In the same case, he had been convicted of a conspiracy count to possess stolen things, and in another case, burglary and unauthorized use of a motor vehicle.

Fifth Circuit precedent recognized § 922(g)(1) to be unconstitutional as applied to some felons, as "[s]imply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny."  Non-violent felonies such as marijuana possession without evidence of present intoxication were subject to as-applied challenges.  As the court wisely wrote, "If Congress could escape Bruen's reach by simply classifying a crime as a felony, we would be confined to uncritically rubber-stamping class-based determinations, subjecting disarmament laws to a form of rational-basis, government-always-wins, type of review."  Those words are worth their weight in gold.

By contrast, predicate offenses involving a dangerous or violent crime justified disarmament.  For that proposition, the court saw no need to make out an empirical case for the fact that heroin trafficking while armed is dangerous and involves violence.  Drug gangs wage war with each other and with law enforcement.  Drug traffickers use threats of violence and violence to enforce their illegal dealings as well as to protect their turf.  And heroin is a type of poison on which users often overdose and die.  One who traffics in heroin poses a physical danger to others.

Instead, the Squire court conducted the usual Bruen analysis of looking at historical analogues, having already concluded that Mr. Squire's ability to have a firearm in his home was covered by the Second Amendment's plain text.  The English Militia Act of 1662 directed the disarming of "dangerous and disaffected persons," even though, as Rahimi notes, the Glorious Revolution reduced the Crown's power to do so.  Catholics were disarmed as not having loyalty to the government.  In the American Revolution, persons refusing to swear an oath of allegiance were disarmed.

Native Americans and African Americans were also disarmed.  While use of these analogues is problematic, the court explains: "Granted, these repugnant laws classifying people as dangerous simply on the basis of their race or religion are wrong and unconstitutional under the Fourteenth Amendment…. Nevertheless, these laws give us a glimpse into how early Americans understood their right to bear arms, how the legislature could determine classes of people to be dangerous, and the scope of their disarmament."

The Supreme Court should use the opportunity in Wolford, which concerns Hawaii's "vampire rule" banning exercise of Second Amendment rights in most public places, to disown the use of racist historical analogues.  My amicus brief in Wolford on behalf of the African American Gun Association makes that point in detail about an 1865 Louisiana black code provision.  And as Justice Kavanaugh wrote in his Rahimi concurrence: "Ratified in 1868, [the Equal Protection] Clause sought to reject the Nation's history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution."

Squire sought to distinguish his situation by the fact that he possessed the handgun at home, but the court found that argument to be "mugged by the reality that our historical laws support his disarmament, even in the special confines of his home."  (I guess "mugged" is a term Squire would readily understand.)  As the court concluded, "§ 922(g)(1) as applied to drug traffickers permits arms dispossession based on dangerousness, not location."  That is a narrow holding, as "We do not decide whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order."

The panel distinguished other courts that have refused to recognize any as-applied challenge to the felon-in-possession ban by postulating the basic difference between dangerous and violent crimes from mala prohibita, victimless crimes such as mere possession of marijuana.  We'll see what the Supreme Court says about that when it decides Hemani, which presents the question, "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent."  See my post here.

* * *

In footnote 1 of Squire, Judge Clement rejected the argument that the ban exceeds Congress's power under the Commerce Clause as foreclosed by circuit precedent.  Unsuccessful attempts to rein in Congress on the issue included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus.  Based on the Supreme Court's decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent.  Query whether the Supreme Court will ever return to the premise that local crime is not interstate commerce.

The post Second Amendment Roundup: No Protection for Heroin Trafficker appeared first on Reason.com.

I am happy to pass along this post from Professor Arthur Hellman, concerning Judge Ryan Nelson's parking lot altercation, which I wrote about here:

Over the weekend, Bloomberg Law reported that Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals has been charged with misdemeanor battery for his actions in an April 2 altercation with a man in a parking lot in Idaho Falls, Idaho. Judge Nelson has also been charged with malicious injury to property – the "property" being the glasses of the other man, which Judge Nelson allegedly knocked off and stomped on. The altercation apparently began when the other man said (twice) to Judge Nelson: "Learn how to park."

The Idaho State Journal published video of the incident and also a more detailed account of the episode. A pretrial conference is scheduled for June 18.

In the Judicial Conduct and Disability Act of 1980 (JCDA), Congress established a process for dealing with complaints that a federal judge "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability." Judge Nelson's alleged conduct would arguably support a finding of misconduct under the JCDA; it may also implicate the provision dealing with disability. How should the judiciary respond to this report?

Under the Act, complaints against judges may be filed by "any person" and thereafter reviewed by the Chief Judge of the Circuit. But the Chief Judge need not wait for the filing of a complaint before initiating the process. She may "identify" a complaint with the same effect. I have argued that "when reports of possible misconduct have become public, the chief judge should be required to identify a complaint." This will reassure the public that the judiciary is truly committed to policing misconduct within its ranks. And if the judge is exonerated, the process will help to remove the cloud that would otherwise hang over the judge's reputation.

So the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint. What next? The law allows Judge Murguia to conduct a "limited inquiry," but not to "make findings of fact about any matter that is reasonably in dispute." If there are disputed facts relevant to the complaint, she must appoint a Special Committee similar to the one that recently investigated the allegations against Judge Eleanor Ross of Atlanta.

I'll skip now to the question: does Judge Nelson's conduct fall within the statutory definition of misconduct quoted above? After all, in contrast to Judge Ross, all of Judge Nelson's conduct took place outside the court and was unrelated to his judicial role.

The most extensive discussion of that question in the decisions under the Act is found in a misconduct order issued by Chief Judge Dennis Jacobs of the Second Circuit almost 20 years ago. The proceeding involved an altercation at a campfire on a beach. The principal allegation of the complaint was that the subject judge engaged in misconduct by intentionally striking the complainant without justification and, as a result, was charged with a criminal offense. The similarity to the allegations against Judge Nelson is striking.

Chief Judge Jacobs assumed that extrajudicial conduct could fall within the Act, but after careful analysis (which should be read in full), he concluded that the alleged assault at the beach did not. He summed up by saying that "this was a one-time private dispute between private citizens, one of whom happens to be a judge. At worst, the Judge used physical force to terminate a private confrontation in which the Complainant was using obscenities in the presence of the Judge's small children."

As the second quoted sentence indicates, there were mitigating circumstances in the case before Judge Jacobs that appear to have no close counterpart in the episode involving Judge Nelson. But there may be other mitigating circumstances here. Josh Blackman has ascertained that the parking lot adjoins a hospice center; it is possible that something was going on in Judge Nelson's life that caused him to "snap."

If this was an isolated episode related to a serious medical concern, that might be reason to conclude that the conduct was not misconduct under the Act. Indeed, if Judge Nelson apologizes to the individual involved (which I hope he will do in any event), the Chief Judge or the Judicial Council might "conclude the proceeding" (as the Act authorizes) upon finding that "appropriate corrective action has been taken." That would avoid the need to determine whether Judge Nelson's actions constituted misconduct.

The hospice center setting also raises the possibility that Judge Nelson's conduct reflects a disability or the effect of medications. That too is something that the Chief Judge and the Judicial Council should investigate and take into account.

On the other side of the ledger, shortly after Judge Nelson's confirmation in 2018, the Wall Street Journal reported that in the two decades before his appointment, he had compiled an extensive record of traffic citations. "He's gotten tickets for speeding, disobeying traffic lights and signs, illegal turns, seat-belt violations, not carrying proof of insurance, skipping an auto inspection and not registering his vehicle. He's been cited on his boat as well."

If that behavior stopped after his appointment as a judge, it should not preclude a finding that the parking lot altercation was an isolated event in his life. But if it has continued, that would raise questions about whether the altercation reflects a temperament inconsistent with the judicial temperament. And that might even raise questions about his fitness for judicial office, parallel to those that have been raised with respect to Judge Ross. (My own view is that the most serious finding of misconduct by Judge Ross is the one that involves false statements to the judges who were investigating her misconduct. That finding corresponds closely to conduct that was one basis for impeaching District Judge Samuel B. Kent in 2009. No such conduct has been alleged here.)

But it is far too early to condemn Judge Nelson. The criminal proceeding should take its course; so should the processes under the Judicial Conduct and Disability Act and the rules that the judiciary has promulgated to implement it. When all of those investigations have concluded, there will be time enough to make judgments about Judge Nelson's future as a federal judge.

The post The Criminal Charges Against Judge Ryan Nelson: How Should the Judiciary Respond? appeared first on Reason.com.

Eugene blogged about the incident last night. Bloomberg Law had additional coverage. (As an aside, Bloomberg Law has some of the most thorough coverage of the lower courts today; they consistently outperform other outlets.)

Here, I'll offer a few preliminary thoughts.

First, while I have never met Judge Ross, I do know Judge Nelson. All of my interactions with him over the years have been very cordial. The person I saw in that video was not the person I have come to know and like. As a general rule, we should not be judged at our worst moment, though in life and law, sometimes we are.

Second, I was able to figure out where the incident happened. The surveillance footage was labeled "Front Parking F Street." And the State Journal article referenced the location was on Memorial Drive. Google Maps quickly allowed me to find the intersection in Idaho Falls, Idaho. That parking lot belongs to a Home & Hospice Center. You can see the same blue column that appears in the video.

Third, this location may be relevant. One can imagine that attending to a loved one in hospice may be an emotional experience that could have put Judge Nelson, and the other person, in difficult emotional stages. Also, rushing to a hospice center may explain the judge's failure to pull into a single spot, though the lot was wide open.

Fourth, both Judge Nelson and the other person behaved poorly. Again, the lot had many empty spots. Why did the guy in the white truck pull up right next to Judge Nelson's car? And it wasn't necessary to say anything about the parking job. But then Judge Nelson lost his temper and behaved in an awful fashion. The situation escalated so quickly, it might seem there was history between these two men.

Fifth, Judge Nelson, like all criminal defendants, is entitled to the presumption of innocence. Yet, his attorney does not seem to dispute the underlying conduct--how could he, it is on camera. Here, unlike Judge Ross, Judge Nelson seems to have been truthful during the investigation.

The ethical issues here are complex. I have asked Professor Arthur Hellman to share a guest post on this matter, which I will post after mine.

This video just seems relevant.

Update: David Lat offers this update at Original Jurisdiction:

On the subject of a bad day, the first clerk shared with me that Judge Nelson has been going through a difficult time personally right now: "His father recently had a heart attack (which he thankfully survived), and other family members have been dealing with cancer. I haven't spoken to him about the incident, so I don't know if any of this played into it, but I can certainly imagine it."

Josh Blackman did some sleuthing, and based on the surveillance footage and Google Maps, he concluded that the parking lot where the incident transpired belongs to a Home and Hospice Center. So it certainly seems at least possible that Judge Nelson wasn't in a good state of mind when he had the parking argument.

The post A Few Preliminary Thoughts About Judge Ryan Nelson's Parking Lot Incident appeared first on Reason.com.

But some of the time we do need students to help with cite-checking. We've been fortunate to have such people helping us over the years, but we'd like to add a couple more as well.

I realize that this is not like a normal law review: It will likely involve both less work and less responsibility. On the other hand, you'll get to read what we hope will be very interesting scholarship, participate in the process of publishing it (plus see your name in print on the masthead; the title is "Production Editor"), and further practice your cite-checking skills.

If you're interested, please e-mail me at volokh@stanford.edu. Just to be clear, as with other law reviews, we're looking for volunteers, though we hope that the students who participate will find this professionally valuable.

By the way, if some of you have already done this in past years, but would like to continue even while you're practicing lawyers, we'd of course be happy to have you back. I'm reluctant, though, to impose on people who have graduated and have paying jobs that take up their time unless they've affirmatively made clear that they'd enjoy doing this sort of task as well.

The post Law Students: Interested in Helping With Cite-Checking on the <i>Journal of Free Speech Law</i>? appeared first on Reason.com.

New Iranian attacks in the Persian Gulf are being easily and successfully countered by U.S. Armed Forces. Those attacks should not obscure the fact that President Trump is pursuing a brilliant foreign policy with respect to Iran that he should absolutely stick to.

President Trump is succeeding where Presidents George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Joe Biden all failed. The blockade of Iran will likely produce real regime change if it is left in place for another six to eight weeks, and the new Government of Iran will surrender its nuclear stockpile and will reopen the Strait of Hormuz unconditionally.

Iran is losing $500 million a day and 90% of its trade passing through the Strait of Hormuz as a result of the blockade. No government can continue to govern and escape a revolution on the streets in this situation. Tellingly, no U.S. soldiers are dying, and President Trump is on track to win the United States' biggest foreign policy victory since the peaceful collapse of the Warsaw Pact and of the Soviet Union because of the policies of President Ronald Reagan.

President Trump has very wisely let two conditions shape his negotiations with Iran over the last two months. First, he has insisted that Iran surrender its stockpile of 60% enriched uranium and end its efforts to develop a nuclear bomb. Second, he has rebuffed Iranian demands that Iran be allowed to charge a toll on any ship passing through the Strait of Hormuz. Both demands are eminently reasonable. Yet the Iranian Revolutionary Guard Corps (IRGC), which is now the effective de facto government of Iran, is flatly rejecting both demands.

The IRGC is in a position of extreme weakness right now. It has been unable to pay its soldiers for weeks, and they are defecting in droves. The IRGC has filled all the storage tanks with oil, which it can store, and Iran may soon have to permanently shut down some oil wells, which will permanently damage them. Inflation is at record highs, especially for food; the currency has plunged to the point of being worthless; and even before the war, a super-majority of the Iranian public was furious with the regime. In six to eight weeks, the Iranian people will likely revolt in the streets, and the IRGC will have no troops to put down the popular uprising.

The result will be real regime change in Iran, one of the United States' most dangerous enemies, with an end to the IRGC's existence and to its funding of Hezbollah in Lebanon, of Hamas in the Gaza strip, and of the Houthis in Yemen. If we win the peace in Iran, the way President Truman won the peace after the end of World War II in Germany, Japan, and Italy, Iran will emerge as a potential U.S. ally, or at least as a likely peaceful regional partner.

This means that we will be able to end sanctions in Iran and help restore its full oil and gas production. That production, plus the resumption of oil and gas production in Venezuela, thanks again to President Trump, seems likely to cause oil prices to drop to about $40 a barrel, which will in turn likely bankrupt Vladimir Putin and end the Ukraine War on terms favorable to Ukraine. President Putin may even be overthrown as a result, eliminating another longtime U.S. enemy. The message sent to China not to invade Taiwan will be clear and unmistakable.

President Trump has the chance if he keeps the Iran blockade in place to emerge as the United States greatest foreign policy president since Ronald Reagan, Franklin D. Roosevelt, and Harry S. Truman. All that is required for this to happen is for him to have the patience to leave the U.S. blockade on Iran in place for another 6 to 8 weeks.

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California is notoriously slow at counting its ballots. In 2024, it took California until November 8 (three days after Election Day) to get just 70 percent of its ballots counted. Across all 50 states, the average share of the vote counted by that date was more than 95 percent, putting California squarely in last place. Rest assured, The Golden State did eventually hit that 95 percent mark … a full 10 days later….

Florida now manages to count 99 percent of its ballots within a few hours of polls closing, in part because election officials can process ballots before the polls close. And they are able to accomplish this feat of incredible speed with a sizable proportion of mail votes — about 27 percent in 2024…. Colombia held a presidential election on Sunday, and 99.98 percent of the result was in on Monday morning. Japan also counts most of its votes overnight. And in the UK (not exactly a poster child for state capacity), you can generally expect to have calls for all 650 parliamentary seats the morning after the election….

Nor is the problem inherent in California's choice to promote mail voting:

Mail-voting states such as Oregon, Washington, and Colorado count slowly relative to the US average, but they're all faster than California…. [And y]ou can make voting accessible without bending over backward to accommodate the tiny share of people affected by extending the mail ballot receipt deadline [to one week after the election, as California has]….

And slowness doesn't seem to be the price one needs to pay for accuracy:

There's no evidence that voter fraud or other election administration issues are any less prevalent in California than in faster counting states. Based on the Elections Performance Index — a project that compares election administration quality across states — California ranked 41st in 2024. So the state isn't slower and better: it's slower and (often) worse….

If you want people to be confident in your electoral system, a good first step is to build one that works properly instead of adding yet another example to the "California is a failed state" pile.

The post "Why Can't California Count?" appeared first on Reason.com.

I asked Claude, "Under the federal law clerk hiring plan, when can a recommender e-mail or call a judge to recommend a student?" Claude responded, in part,

Judges will not accept applications or recommendations before 12:00 pm EDT on Monday, June 8, 2026. (That's today — recommendations became permissible at noon Eastern today.) uscourts

For those reading this post later, note that I wrote this and asked Claude this on Sunday, June 7, 2026 (shortly after 12 noon Eastern). AI is indeed the future.

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Idaho State Journal (Jimmy Hancock) reports (including video):

U.S. 9th Circuit Court of Appeals Judge Ryan Douglas Nelson faces two criminal charges [for] {misdemeanor battery and malicious injury to property} after police say he battered a man by swiping the glasses from his face, tossing them across an asphalt lot and stomping on them during an April confrontation over a parking space in Idaho Falls….

The alleged victim says Nelson's truck was angled into a parking space — the bulk of his truck in one spot with the right front tire and bumper hanging over the right line and into the spot to the right and the left rear part of the truck hanging over the left line and into the parking space to the left, effectively blocking three parking spots in the lot directly in front of the nearby businesses.

As the alleged victim was exiting his white pickup truck, Nelson started his truck to leave the parking space. That's when the alleged victim spoke.

"I say 'learn how to park,'" the alleged victim said. "I said it twice. That's when he went crazy." …

"When I spoke with Nelson he admitted to knocking his glasses from (the alleged victim's) head but stated he did not touch him. He also admitted to stomping on his glasses," [a police officer's] affidavit states.

The post Judge Ryan Nelson (9th Cir.) Charged with Battery for Allegedly Knocking off Man's Glasses in Parking Space Dispute appeared first on Reason.com.

Gordon-Darby Holdings had a lucrative contract running New Hampshire's vehicle emissions testing program. Understandably, Gordon-Darby was disappointed when the New Hampshire state legislature repealed the program and canceled the contract. So Gordon-Darby did what many companies would do: It filed suit seeking a court order requiring New Hampshire to maintain the testing program.

Lacking any contractual basis for its suit, Gordon-Darby claimed that New Hampshire was required to maintain its vehicle emission testing program under the federal Clean Air Act. The problem for Gordon-Darby is that the Clean Air Act does not actually require states to do anything, in that states are not forced to adopt or enforce any pollution control measures. Rather, the Act seeks to induce state cooperation by threatening various sanctions if states do not comply, such as a loss of federal funding and the imposition of federal regulations. The Act is structured this way because a direct imposition on the state would be unconstitutional, as the federal government conceded to the Supreme Court when these issues were litigated in the 1970s. Since then, the Supreme Court has made explicit that federal law cannot force states to adopt, implement, or enforce a federally desired regulatory program, as any such requirement would be unconstitutional commandeering.

Gordon-Darby first suit foundered when the U.S. Court of Appeals for the First Circuit concluded the litigation was premature. As the district court had looked more favorably on the claims, Gordon-Darby announced its plans to try again. Accordingly, it filed a new notice of intent to sue, raising the same claims.

In the first litigation, the state largely defended on narrow technical grounds, and largely failed to raise the commandeering defense. In my view, this was a mistake, as the anti-commandeering doctrine is quite clear and, in some respects, has its roots in a nearly identical conflict, when the EPA sought to force states to adopt vehicle emission inspection programs in the 1970s. Thus even if Gordon-Darby overcomes the various technical hurdles to filing suit, it has no claim, as it is asking for relief that federal courts cannot lawfully provide.

As Gordon-Darby filed its new notice of intent to sue on May 8, I suspect this means we will see a suit filed in early July. Stay tuned.

The post Gordon-Darby Prepares to Renew Effort to Commandeer New Hampshire in Order to Maintain Emissions Testing Contract appeared first on Reason.com.

Environmental organizations have filed citizen suits against state and local governments alleging that their failure to regulate more stringently, or their issuance of permits to particular activities, violate the Endangered Species Act (ESA). In effect, these suits seek to hold state and local governments vicariously liable for harms to listed species.

There are questions about whether the ESA should be interpreted or applied in this fashion. There are also questions about whether the imposition of vicarious liability on state and local governments violates the anti-commandeering principle under New York v. United States, Printz v. United States, and NCAA v. Murphy.

Last week I hosted a Federalist Society forum, "Commandeering for Conservation?" in which Jonathan Wood of PERC and William Snape of American University's Washington College of Law discussed and debated this question.

For what it is worth, I am with Jonathan Wood on this question, for reasons I explained in this post (and will elaborate on in a forthcoming paper).

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In a recent New York Times article, socialist Sen. Bernie Sanders presented a proposal to have the federal government expropriate 50% of the stock of major AI producers. If enacted by Congress, the plan would violate the Takings Clause of the Fifth Amendment.

Sanders justifies this expropriation by claiming that AI was produced through the "collective knowledge of humanity":

Artificial intelligence was not created out of thin air. The data and language used by generative A.I. tools didn't just pop into Sam Altman's head or Elon Musk's imagination. A.I. is built on our collective intelligence: our books, songs, artwork, journalism, computer code, scientific research, videos, conversations, images and ideas spanning generations. That is not just the opinion of Bernie Sanders.

For the most part, tech oligarchs have fed this knowledge into their A.I. models without permission, without acknowledgment, without compensation. In other words, the creative work of millions of people — writers, artists, musicians, journalists, teachers, scientists and ordinary citizens — has essentially been stolen by some of the wealthiest people in the world. It's time for us to reclaim it.

Since A.I. is built on the collective knowledge of humanity, the wealth it generates must benefit humanity.

The Takings Clause of the Fifth Amendment states that the government may not take "private property" without paying "just compensation."As Richard Epstein and Eduardo Penalver – leading takings scholars with widely divergent views on most political and legal issues – explain in a joint essay on the Takings Clause for the National Constitution Center, "the guarantee of just compensation must apply at the very least to cases in which the government engages in the outright confiscation of property." Stock is private property, and seizing 50% of the stock value of major firms is a pretty obvious case of confiscation.

And it does not matter that Sanders proposes to take "only" 50% of the stock, rather than 100%. If the government seizes half your house or half of your business, that's still a taking. Indeed, the Supreme Court has held that seizing a much smaller proportion of a property is a taking, as in the famous case of Loretto v. Teleprompter, where New York City required the owner of a building to give up a small portion of the roof to put a cable box there. The same principle applies here.

Sanders refers to the seizure as a "one-time 50 percent tax." But that labeling doesn't matter. It's still obviously an expropriation of property, and not simply a tax on the income it generates or even a property tax. One of the key elements of property rights is control over its use. Sanders makes clear that seizing control for the government is a major objective of the proposal. There can be situations where the boundary between a tax and a taking is fuzzy. But this proposal is very obviously on the taking side of the line.

If merely labeling an expropriation like this a tax could immunize the government from takings liability, they could use the same trick to expropriate virtually any property without compensation. Thus, they could take over your house by claiming that it's merely an in-kind tax payable in the form of land-use rights. They could take over any business or charitable organization by claiming that it's a one-time tax payable by turning over the right to control all the organization's activities. And so on.

Sanders could potentially get around Takings Clause constraints by abandoning outright confiscation, and instead having the government pressure firms into giving up control by using regulatory pressure, offering subsidies, or imposing unconstitutional export taxes on those that refuse to comply. Donald Trump has actually used tools like these to acquire stakes in various firms, such as Intel. The Trump administration has recently been considering using such shenanigans to acquire stakes in major AI firms.

The Trump-like approach is, I believe, also subject to a variety of legal objections. But it's less obviously unconstitutional than Sanders' plan for outright confiscation.

In addition to being unconstitutional, the Sanders plan - like Trump's similar policies (which I have  forcefully criticized) - is awful on moral and policy grounds. Sanders justifies it on the basis that AI has been "built on the collective knowledge of humanity." That "reasoning" could justify confiscating virtually any property. Pretty much every productive activity relies, in part, on knowledge accumulated by other people previously. Your house, your cellphone, your car, and your refrigerator, are all based on previously developed scientific and other knowledge. Anyone who writes a book or an article is likely building accumulated knowledge, some of it accumulated over many centuries. My writings on democratic theory rely, in part on, ideas that go all the way to the origins of democracy in ancient Greece.

AI producers, like almost everyone else, are building on accumulated knowledge. But they nonetheless make important new contributions, and the government has no right to expropriate them. Consumer choice and competition, not the government, should determine how much value to assign to the AI producers' products, not the state.

To the extent that AI producers may have illegally used others' intellectual property (by using "stolen" creative work, as Sanders puts it), the proper solution is not confiscation by the government, but lawsuits seeking damages. There are, in fact, a number of such cases currently ongoing. Expropriation of AI firms by the federal government would do nothing to compensate people whose intellectual property may have been used without proper authorization. It would just transfer the illegal profit from AI firms to the feds.

Sanders also argues that AI should be under the control of the government because it's an important technology that should not be left to the control of a few billionaires. But a century of experience with socialism shows that government control of major industries leads to horrific results: poverty, oppression, and even mass murder. And for reasons I outlined in detail in this piece, Sanders' brand of "democratic socialism" is unlikely to be much better than the authoritarian kind - nor is it likely to remain democratic for long.

Similar problems arise when right-wing nationalists like Trump seek to impose government control over major industries. On that point, see my 2024 article "The Case Against Nationalism," coauthored with my Cato Institute colleague Alex Nowrasteh. Indeed, the similarity between Trump's policies and Sanders' ideas is an example of how socialists and nationalists advocate similarly awful ideas. It's "Horseshoe theory" at work!

Sanders' progressive supporters would do well to consider whether they want the AI industry - or any major industry - to be controlled by the likes of Trump. Trump isn't the first right-wing demagogue to win an election, and he's unlikely to be the last. Don't give government powers that you are unwilling to have wielded by your political opponents.

It is not true that the only alternative is a few billionaires dominating everything. The AI market is in fact very competitive. Claude, ChatGPT, Grok, Perplexity, and others are rival products competing in this space, produced by different firms. New firms enter the market on a regular basis. And the firms' owners - including billionaires - know they can only make money by meeting consumer demand better than their rivals or at lower cost. That is, so long as they cannot instead rely on government handouts and cronyism of the kind likely to proliferate with greater state control.

AI does pose some risks, and there are legitimate arguments for constraining some types of uses, particularly when it comes to warfare and government surveillance. But the right approach there is restricting dangerous uses, not wholesale expropriation by the government. To the extent that AI is potentially dangerous, government monopoly control over that industry actually exacerbates that danger, by concentrating power in the hands of politicians and their cronies and henchmen.

In sum, Sanders' plan to expropriate a large part of the AI industry is unconstitutional. And it's terrible policy, to boot. On that score, it has much in common with Trump's economic policy agenda.

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An excerpt from the long (and, I think, basically correct) opinion in Hoffman v. N.Y. Times Co., decided yesterday by Judge Evelyn Padin (D.N.J.):

Pro se Plaintiff Harold Hoffman brings this action against Defendant the New York Times Company …. Plaintiff's suit stems from an article published by the New York Times on July 25, 2025, titled "Young, Old, and Sick Starve to Death in Gaza: 'There Is Nothing'" along with the article's accompanying photo:

According to Plaintiff, the New York Times deliberately and misleadingly omitted the fact that the infant in the photo—an 18-month-old baby named Mohammed Zakaria al-Mutawaq (pictured with his mother, Hedaya al-Mutawaq)—was born with cerebral palsy, hypoxemia, and serious genetic disorders in order to advance an untrue narrative about the impact of the war between Hamas and Israel on those living in Gaza. Plaintiff also claims that the New York Times's publication of the Article runs in contravention of its motto "All the News That's Fit to Print." …

Plaintiff brings five claims under the NJCFA [N.J. Consumer Fraud Act] as well as one claim for common law fraud. The NJCFA prohibits:

The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice….

Here, Plaintiff appears to bring claims based on two affirmative misrepresentations—(1) publishing the Article and Photo knowing they were false/misleading and (2) the New York Times's Motto—as well as two knowing omissions related to the Article—(1) failing to include Mohammad's full health history in the Article and (2) removing his allegedly healthier older brother from the Photo….

[1.] Plaintiff's NJCFA claims based on the Article and Photo

At the outset, the Court notes that "to state a claim within the scope of the [NJCFA], a plaintiff must allege facts that establish that the alleged fraudulent conduct induced or lured the plaintiff into purchasing merchandise or real estate." …

[T]he Article and the Photo … were published long after Plaintiff subscribed to the New York Times. Indeed, Plaintiff concedes that the Article and Photo are not what induced him to purchase a subscription to the New York Times. As such, Plaintiff cannot show that the Article or Photo were made in connection with the sale or advertisement of merchandise or that any omission from either is what caused his loss. It necessarily follows that Plaintiff cannot state a NJCFA claim for any conduct arising from the publication of the Article or Photo.

[2.] Plaintiff's NJCFA claim based on the New York Times's Motto

While the New York Times makes several arguments why Plaintiff cannot state a claim under the NJCFA based on its Motto, the Court need only address one: the Motto is not an affirmative misrepresentation actionable under the NJCFA…. The NJCFA … "distinguishes between actionable misrepresentations of fact and 'puffery.'" "Advertising that amounts to 'mere' puffery is not actionable because no reasonable consumer relies on puffery. The distinguishing characteristics of puffery are vague, highly subjective claims as opposed to specific, detailed factual assertions." In Rodio, for instance, the New Jersey Supreme Court held that Allstate's slogan, "You're in good hands with Allstate," was "nothing more than puffery" and was therefore not "a deception, false promise, misrepresentation, or any other unlawful practice within the ambit of the [NJCFA]."

The Court agrees with the New York Times that its Motto is not a false statement of fact. For one, the Court finds that the Motto is a highly vague and subjective statement that assures consumers nothing in particular. As the New York Times persuasively argues, "[w]hat is 'fit' and what is not 'fit' is by its very nature not a fact, but a subjective determination made by editors," and Plaintiff himself recognizes the New York Times "is entitled to editorial freedom to choose what news to emphasize." As such, the New York Times has the discretion to choose what news is fit to print. That Plaintiff does not like that news—or believes that the New York Times's reporting is not news but politically motivated lies—does not change the fact that the New York Times's Motto is a highly subjective statement that affords it significant discretion choose what it deems fit to print.

In addition, it is hard to even consider the Motto as reaching any level of puffery. It makes no specific claim of superiority (either a general claim of superiority or a claim of superiority by reference to any metric), nor does it assure consumers anything "specific and measurable." … See, e.g., In re Toshiba Am. (D.N.J. 2009) (holding that a statement that a product was for "Today, Tomorrow and Beyond" to be non-actionable puffery); Argabright v. Rheem Mfg. Co. (D.N.J. 2016) (finding that a manufacturer's statements claiming its products were "top-quality" and "dependable" could not support a misrepresentation claim); Peruto v. TimberTech Ltd. (D.N.J. 2015) (finding statements that a decking product was "designed to provide years of low-maintenance use and enjoyment," "dependable and attractive for years," and "[provided] years of outdoor living pleasure" constituted non-actionable puffery). The New York Times's Motto is even more vague than these statements, and in the Court's view, is one that no reasonable person would attach importance to when considering whether to purchase a New York Times subscription….

[3.] Plaintiff's NJCFA claim based on the New York Times's Handbook of Practices for Ethical Journalism (the "Handbook")

In his Opposition, Plaintiff changes course and asserts for the first time that what induced him to purchase a New York Times subscription was neither the Article, the Photo, nor the Motto, but rather, the New York Times's "written promise to deliver accurate news coverage in exchange for his subscription funds." The written promise Plaintiff is referring to is a statement within Chapter Two of the Handbook: "accuracy is the foundation of our credibility." "In reliance on this promise of accurate news reporting," which Plaintiff notes "is viewable on-line for all subscribers to see and to rely upon," Plaintiff "purchased and maintained the subscription." …

As noted above, to be actionable under the NJCFA, an affirmative misrepresentation must be made "in connection with the sale or advertisement of any merchandise or real estate." … [P]utting aside that Plaintiff does not plead with particularity when he first saw the Handbook or when he first subscribed to the New York Times, Plaintiff fails to show that this statement within the Handbook was made in connection with the sale or advertisement of merchandise. All Plaintiff offers is that the statement "is viewable on-line for all subscribers to see and to rely upon," which is meaningfully different from showing that the statement was made in connection with the sale or advertisement of merchandise….

[T]he same deficiencies that doom Plaintiff's NJCFA claims also doom his common law fraud claims….

David L. Cook (Sills Cummis & Gross) represents the Times.

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