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I don't think that view is right, and I don't think it fits the norm for how our legal system treats analogous scenarios. I think that on balance the abolition of the alienation of affections tort (which has happened in 45 states) is a good idea. But not for the reason that "the lover isn't at fault, only the spouses are."

Rather, alienation of affections is analogous to complicity liability. If Alan commits an intentional wrong against Betty, either a crime or a tort, and Cathy encourages Alan to do that, Cathy is generally liable. The term sometimes used for this is "solicitation," though sometimes it's seen as a form of aiding and abetting.

If Cathy helps Alan in committing the wrong, or participates in committing it, Cathy is likewise liable for aiding and abetting or conspiracy. (Both those concepts apply to civil liability as well as criminal liability.)

Perhaps most analogously to alienation of affections, if Alan breaches his contract with Betty, and Cathy encouraged him to breach it, she will in many situations be liable for intentional interference with contract. Likewise if Alan breached a fiduciary duty to Betty, and Cathy encouraged that breach.

Now there can be complications here. Among other things, complicity liability will often apply only if Cathy has the purpose of bringing about Alan's misbehavior, or at least knows that Alan is misbehaving. Negligently providing assistance is enough in some cases (see, e.g., negligent entrustment of cars or weapons), but usually not enough. But in many alienation of affections cases, the defendant knew that the defendant's lover was married.

And I think that on balance this sort of complicity liability makes sense in most situations. Knowingly helping someone else commit a wrong against a third party, and especially urging that person to commit the wrong, is itself a wrong against the third party. But whether or not you agree with that, that's the dominant view in our legal system.

The intentional interference with contract example also responds to the argument that "spouses don't own each other, so a third party can't 'steal' a spouse from the other spouse." Contracting parties also don't own each other: If Alan promises to sing in Betty's opera house for a year, that doesn't mean that Alan is Betty's property. But if Cathy lures Alan away to instead sing in her opera house, especially knowing of Alan's binding contract with Betty, then she is liable—not for stealing Alan as if he were property, but for inducing his breach of the contract that he voluntarily entered into. Likewise, an alienation of affections claim doesn't rely on claims of ownership any more than does the intentional interference claim.

As I said, I think there are good reasons why the alienation of affections tort has been abolished in the great majority of states. I'll likely write a bit more about those reasons in a later post. But I think the reasons are largely functional and pragmatic, rather than conceptual. The inability to sue those who aid in the wrong of adultery is actually something of a departure from the conceptual framework of civil and criminal liability.

The post Alienation of Affections as Complicity appeared first on Reason Magazine.

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From Ammel v. Sinema, decided Friday by Judge David Bragdon (M.D.N.C.):

Ms. Ammel married Matthew Ammel in 2010. From 2014 through November 2024, they resided in Whispering Pines, North Carolina, with their three children.

Mr. Ammel met Ms. Sinema in August 2022, following his retirement from the military. At that time, Ms. Sinema was serving as a United States Senator for the State of Arizona. During her tenure in the Senate, Ms. Sinema maintained residences in both Arizona and Washington, DC. Ms. Sinema left the Senate and is currently a professor at Arizona State University and an attorney with Hogan Lovells Cadwalader in Washington, DC….

Mr. Ammel and Sinema apparently began an affair, which took place in California, New York, and Colorado. Eventually, Ms. Ammel learned of this, she and her husband separated, and she sued Sinema for "alienation of affections," a tort that North Carolina still recognizes and that is still often litigated in North Carolina courts. (Last fiscal year, for instance, there were 150 alienation of affections filings in N.C. courts; it's also apparently recognized in Hawaii, Mississippi, South Dakota, and Utah.)

To establish an alienation of affection claim, a party must show: "(1) there was a marriage with love and affection existing between the husband and wife; (2) that love and affection was alienated; and (3) the malicious acts of the defendant produced the loss of that love and affection." A malicious act "include[s] any intentional conduct that would probably affect the marital relationship." However, in cases in which the defendant has engaged in sexual intercourse with the plaintiff's spouse, malice is conclusively presumed.

The evidence [as alleged in plaintiff's Complaint] demonstrates that although the relationship between Mr. and Ms. Ammel was turbulent in 2024, there was still genuine love and affection between them, as reflected in their text messages. In October 2024, Mr. and Ms. Ammel took an anniversary trip that included intimacy and was followed by text messages in which they expressed their love for one another. The evidence also shows that love and affection was alienated by Mr. Ammel's relationship with Ms. Sinema; and since their relationship included a sexual relationship, malice is conclusively presumed.

And though the sexual conduct took place outside North Carolina, the court concluded that state and federal courts in North Carolina would have personal jurisdiction over Synema:

Ms. Ammel felt the harm in North Carolina, since her marital residence was there and there was no evidence that she traveled substantially outside of North Carolina….

[And] Ms. Ammel testified that she saw nine Signal messages from Ms. Sinema on Mr. Ammel's phone while he was in North Carolina. Ms. Sinema testified that she did not recall sending any of those messages, except the October 3rd message.

The Court finds Ms. Ammel credible in describing the existence of and context of the messages. Ms. Ammel's testimony has been generally consistent and supported by corroborating evidence. In addition, Ms. Ammel has acknowledged facts that hurt her case. In contrast, Ms. Sinema's testimony on several key matters has not been credible, with portions of her declaration contradicted by her testimony at the evidentiary hearing. The Court also finds Ms. Sinema's testimony that her relationship with Mr. Ammel involved only sex, that she did not flirt with him, and that she would not have sent messages when he was not with her to be implausible.

Contrary to these claims, the texts that were preserved show an emotional connection between Mr. Ammel and Ms. Sinema. Those messages, coupled with Ms. Sinema's connection with Mr. Ammel's children and their continuing relationship, make it unlikely that Ms. Sinema's testimony about her relationship with Mr. Ammel was true. The Court also finds it implausible that Mr. Ammel, a married man and mere security guard to Ms. Sinema, would have kissed his boss, a United States Senator, with no prior flirting or invitation.

Ms. Sinema argues that Ms. Ammel cannot prove that seven of these messages were sent to Mr. Ammel while he was in North Carolina. The Court accepts Ms. Ammel's testimony that she found the messages on Mr. Ammel's phone at her home. However, she acknowledged that she did not know when the messages were sent.

Both Ms. Sinema and Mr. Ammel had their phones set to delete messages eight hours after they were read. Ms. Sinema did not provide any evidence that Mr. Ammel regularly waited a long time to read her messages. Therefore, the Court infers that Mr. Ammel usually read Ms. Sinema's messages soon after she sent them since she was his boss, and they were beginning an intimate relationship. Because Ms. Ammel saw the messages in North Carolina within eight hours of the time they were first read, the Court finds it reasonable to conclude that the messages were sent while Mr. Ammel was in North Carolina….

Ms. Sinema [also] admitted that she knew Mr. Ammel was married and lived in North Carolina with his wife and children during the relevant period. Moreover, during the relevant period, Mr. Ammel worked as security for Ms. Sinema. The text messages also convey a personal and emotional relationship that makes it more likely that Ms. Sinema would know where Mr. Ammel was. Therefore, it is reasonable to conclude that Ms. Sinema knew where Mr. Ammel was at the time the messages were sent. And even if she did not know exactly, she certainly knew he was not with her or her staff and therefore likely to be at home in North Carolina.

The October 3, 2024, "hand over your heart" message is in a different category because there is no dispute that Mr. Ammel was in North Carolina when it was sent. Nonetheless, Ms. Sinema still claims that she did not know where Mr. Ammel was when she sent it. Ms. Sinema testified that she and Mr. Ammel had sexual intercourse on the night of October 2, 2024, after which he spent the night at her house. She further testified that she knew Mr. Ammel planned to leave early the following morning to catch a flight, but she did not know that he was going to North Carolina for his daughter's birthday.

However, by that time, Ms. Sinema had been in a romantic relationship with Mr. Ammel for more than four months. Their relationship had likely been personal and emotional for even longer. And Ms. Sinema had a relationship with Mr. Ammel's children. For example, in July 2024, she attended a concert with one of his children and gave them a tour of the Capitol. She also attended a Taylor Swift concert with the children in mid-October, just a few weeks after the text at issue was sent. Against that backdrop, the Court finds it implausible that Mr. Ammel would have left Ms. Sinema before 6:22 a.m. to catch a flight without telling her that he was returning to North Carolina for his daughter's birthday.

Thus, … North Carolina was the "focal point" of the alleged tortious conduct. Ms. Sinema knew that Mr. Ammel was married, lived in North Carolina, and had children there. The evidence further supports the conclusion that she knew Mr. Ammel generally returned to North Carolina when he was not with her and that the alleged conduct would cause harm to Ms. Ammel in North Carolina, where she and her children lived.

Therefore, despite testimony to the contrary, the evidence demonstrates that Ms. Sinema purposefully availed herself of the privilege of conducting activities in North Carolina by sending nine messages to Mr. Sinema, a married man, while he was in North Carolina. These messages, considered together, show Ms. Sinema building and furthering a romantic relationship with Mr. Ammel—invading the marriage not just while he was away on trips with her but while he was home with his family in North Carolina….

[And] the claims arise out of or relate to defendant's contacts with the forum…. Some of those messages, standing alone, constitute acts that contributed to the loss of love and affection between Mr. and Ms. Ammel. Viewed collectively, the messages do more: they develop and further the intimate relationship between Mr. Ammel and Ms. Sinema that allegedly produced the loss of love and affection between Mr. and Ms. Ammel. Because Ms. Sinema sent these messages to Mr. Ammel while he was physically present in North Carolina, the messages bear a direct connection to the conduct underlying Ms. Ammel's alienation of affection claim…

North Carolina's interest in adjudicating this dispute [also] weighs strongly in favor of exercising personal jurisdiction. In Malecek v. Williams (2017), the North Carolina Court of Appeals explained that North Carolina has an interest in "seek[ing] to deter and remedy the harmful effects that result from acts that cause people to break their marriage vows, inflict personal injury on others, and damage the institution of marriage." By contrast, Ms. Sinema has not presented evidence that litigating this matter in North Carolina would impose a significant burden. Although Ms. Sinema resides in Arizona, she testified that she works in Washington, D.C., which is a 90-minute flight or a 5-hour drive from Winston-Salem, North Carolina. Furthermore, Ms. Sinema is an experienced traveler. If she can live in Arizona and work in Washington, D.C., it seems unlikely that a lawsuit in North Carolina would impose a burden….

Thomas M. Van Camp, Mary Catherine Coltrane, and Michael James Newman (Van Camp Meacham & Newman, PLLC) represent plaintiff.

The post N.C. Court Has Jurisdiction over Alienation of Affection Claim Brought Against Ex-Arizona-Senator Kyrsten Sinema appeared first on Reason Magazine.

In early 2022, the Met fired {Anna Netrebko, a Russian national and former "reigning prima donna" of the [Met]} after [Met general manager Peter] Gelb was dissatisfied with Netrebko's failure to make a public statement following Russia's 2022 invasion of Ukraine….

Prior to 2022, Netrebko was widely reported to be a supporter of Russian President Vladimir Putin. On February 25, 2022, after Russia invaded Ukraine, Netrebko stated on Instagram, "These are very sad days and we are deeply concerned for the well-being of all people involved. Every war is a terrible tragedy. This is not a time for music but for reflection and prayer. And so we hope and pray for a swift and peaceful resolution." The following day, the Met asked Netrebko to publicly "denounc[e] Putin … using specific language" it had approved. Instead, Netrebko issued her own social media statement that she was against the war, adding, however, that she was also opposed to "forcing artists, or any public figure, to voice their political opinions in public and to denounce their homeland." That same day, Netrebko reposted a comment from a third party on her Instagram story characterizing "people from the West" who "pretend to be brave … by putting in trouble artists who asked nothing" as "human shits" and "as evil as blind ag[g]ressors."

On February 27, 2022, one day after Netrebko's post, the Met publicly stated that it "can no longer engage with artists or institutions that support Putin or are supported by him—not until the invasion and killing has been stopped, order has been restored and restitutions have been made." Two days later, on March 1, Netrebko again posted on Instagram, this time saying, "I am opposed to this senseless war of aggression and I am calling on Russia to end this war right now." In a phone call on March 2, Gelb told Netrebko to issue a statement specifically denouncing Putin, or she would be fired. Netrebko responded that, as a Russian citizen, she "could not make such a statement."

On March 3, 2022, the Met announced that Netrebko would not perform in the 2021–22 or 2022–23 seasons. About four weeks later, on March 30, Netrebko issued a public statement that she "condemn[s] the war on Ukraine," that her "position is clear," and that she is "not a member of any political party nor [ ] allied with any leader of Russia." The Met did not rehire Netrebko.

Netrebko sued for, among other things, defamation, and the court dismissed the defamation claim. But Netrebko then added claims alleging (among other things) "that after Netrebko filed this lawsuit, the Met 'started a renewed public campaign' in which Gelb defamed Netrebko." Netrebko's supplemental defamation claim is based on five of Gelb's statements quoted in three [Ukrainian and Austrian] news articles from June to July 2025:

• "I also immediately gave our leading star, Anna Netrebko, the choice of either disavowing Putin and the war, or being fired by the Metropolitan. She chose, and we fired her. Later on, she announced she was against the war. But she only did this to show that she should be given [a way] back, if not [to] the Metropolitan, [then to] other opera companies."
• "Following extensive discussions with Anna Netrebko, our star performer at the time, I dismissed her, as she refused to publicly distance herself from the Russian regime."
• "Her later statement—only a month afterwards—in which she claimed to be against the war was, in my opinion, insincere. It was issued only after her dismissal. From a legal perspective, I believe that statement was not genuine. I do not believe she meant it."
• "[I]t is important to emphasize that I gave her the opportunity to publicly distance herself from Putin. She told me she could not. I believe she had certain conversations with the Kremlin. As I understand it, she returned to me and said, 'I stand with my country.'"
• "In my view, she condemned the war purely out of expediency and only after the Met had fired her. I believe there are numerous examples of her sympathy toward Putin and his ideology."

"Netrebko claims that the statements are false because, inter alia, she 'did disavow the war' in her February and March 2022 posts. She further claims that Gelb knew his statements were false when he made them. For example, she alleges that Gelb 'knew it was false to say that Netrebko had not condemned the war before the Met terminated her' because he reviewed her March 1, 2022 public statement and had characterized it as 'anti-war' and 'denouncing the war.'"

The court concluded that Netrebko hadn't adequately "specific factual allegations permitting a reasonable inference" that defendants knew the statements were false (or at least were likely false)—that's the so-called "actual malice" requirement imposed on defamation lawsuits brought by public figures such as Netrebko:

A complaint must allege "objective facts" from which a Court could infer actual malice—for example, the "the defendant's own actions or statements, the dubious nature of his sources, and the inherent improbability of the story[,] among other circumstantial evidence."

In Statement 1, Gelb states that he gave Netrebko the choice of disavowing both Putin and the war or being fired and that she made her choice. Netrebko argues that Gelb knew this statement was false because he knew that Netrebko could not choose to disavow Putin once her manager told Gelb she was "scared" to make such a statement. Nothing in the ASC raises an inference that Gelb believed or strongly considered that Netrebko lacked this choice. Gelb's communications to the press and the text messages and emails referenced in the complaint uniformly show that Gelb strongly believed that Netrebko could have disavowed Putin if she were willing. For example, on March 2, 2022, Gelb texted Judith Neuhoff, Netrebko's then-manager, that he "[doesn't] understand why [Netrebko] is committing professional suicide" by failing to denounce Putin and that "[t]hat's what she should be scared of, not Putin." In other words, Gelb subjectively believed that Netrebko had a meaningful choice to make. Netrebko has, therefore, failed to plausibly allege actual malice with respect to Statement 1.

In Statement 2, Gelb states that Netrebko "refused to publicly distance herself from the Russian Regime." In Statement 3, Gelb references Netrebko's "later" statement claiming to be "against the war." And in Statement 5, Gelb states that Netrebko "condemned the war … only after the Met had fired her." Netrebko contends that she has plausibly alleged that Gelb knew these statements were false because he knew about her March 1, 2022 anti-war Instagram post and characterized it as "denouncing the war," "against the war," and an "anti-war statement."

These allegations do not reasonably support an inference that Gelb believed Netrebko condemned the war before the Met fired her or that she publicly distanced herself from the Russian regime. In context, Gelb's statements to the press and his colleagues reflect that he firmly believed—whether correctly or not—that Netrebko had not genuinely "condemned the war" because her March 1 post did not go far enough, she would not specifically disavow Putin, and she had equivocated on her public stance before. In July 2024, Gelb characterized Netrebko's "effort to distance herself from the Russian war" as "disingenuous." He has also repeatedly emphasized Netrebko's history of support for Putin in public and private communications, suggesting that he believed Netrebko did not effectively distance herself from the war, Putin, or the Russian "regime."  {The Court need not opine on what it means to "publicly distance" oneself from a regime or "condemn" a war because the ASC does not permit a reasonable inference that Gelb genuinely believed or considered that Netrebko had done those things when he made statements to the contrary.}

Gelb's messages to his colleagues about Netrebko's March 1, 2022 post confirm that he did not believe it was an adequate or sincere statement condemning the war. [Details omitted. -EV] …

Gelb's statement that Netrebko "refused to publicly distance herself from the Russian Regime" was also not plausibly made with actual malice. The Oxford English dictionary defines "regime" as "[a] particular ruling group, government, or administration, esp. an authoritarian one." A statement against a war, therefore, does not necessarily constitute denunciation of a regime. Netrebko's March 1, 2022 post concerns only the war. She pleads no facts supporting an allegation that Gelb believed she had publicly distanced herself from the Russian regime. Instead, the communications she cites demonstrate that Gelb believed she was "totally behind Putin," notwithstanding the March 1 post.

In sum, the messages Netrebko relies on merely reflect that Gelb knew that she had made an Instagram post with anti-war sentiments on March 1; they do not plausibly suggest that Gelb subjectively believed that Netrebko had, in fact, condemned the war or distanced herself from the Russian regime, or that Gelb entertained serious doubts as to the truth of his statements when he made them. Netrebko has not, therefore, pleaded that Gelb made any of the allegedly defamatory statements with a "high degree of awareness of their probable falsity."

Finally, with respect to Statement 4 (Gelb's statement that he believes Netrebko "had certain conversations with the Kremlin"), the ASC is devoid of facts tending to show that Gelb knew that Netrebko did not communicate with the Kremlin or that he harbored serious doubts as to this claim. The ASC does not allege, for example, that Gelb relied on questionable sources for this proposition, nor does it provide that Gelb made up the statement or that it is inherently improbable. In fact, in amending her supplemental complaint, Netrebko deleted the allegation that "Netrebko did not have conversations with 'the Kremlin' related to the invasion." … The [Supplemental Complaint], therefore, does not plausibly allege Statement 4's falsity, let alone Gelb's actual malice in making the statement….

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Please keep in mind two important things:

[1.] Once evidence triggering the defense is raised, the government must disprove it beyond a reasonable doubt. To draw an analogy from how people talk about the reasonable doubt standard as to other guilt/innocence questions, Massachusetts takes the view that it is better that 10 non-insane people are wrongly acquitted than that one insane person is wrongly convicted.

This is not the uniform rule in the U.S.; for instance, in federal cases, the law is almost the opposite—the defendant must prove insanity by clear and convincing evidence. Indeed, my quick research suggests that this is the rule only in a minority of states. But the law in Massachusetts on this is as settled.

[2.] The substantive rule is that a defendant is not criminally responsible if

(a) he or she "suffer[ed] from a mental disease or defect at the time of the alleged offense" (with no further definition of the terms, at least as part of the standard instruction) and

(b) either

(i) the defendant lacked "the substantial capacity to appreciate the wrongfulness or criminality of their conduct" or

(ii) the defendant lacked "the substantial capacity … to conform their conduct to the requirements of the law." (From what I understand of the Clancy defense, it is that she suffered from a mental disease and lacked the substantial capacity to refrain from killing her children—or at least there's a reasonable possibility that this was so.)

This substantive standard is likewise not a uniform view throughout the country; many other states follow different approaches. According to a Paul Robinson et al. study from 2015, about 1/3 of the states take the same substantive approach as Massachusetts does.

[B.] Please focus in your comment on how you would apply Massachusetts law, not whether you think the law should be changed (either as to the burden and quantum of proof, or as to the substantive definition of when the defendant isn't legally responsible).

Also, please focus on how you think this standard should apply in this case to this person. The question isn't the prevalence of postpartum psychosis as such, or of how often women can be highly distraught and not kill their children. Nor is it whether Clancy's public supporters or detractors are acting badly or opining foolishly. Rather, the question is whether, on the facts of this case, you would think that there's a reasonable doubt about Clancy's sanity (as defined by the Massachusetts law summarized in item A.2 above).

[C.] If you want more details on the Clancy case, here's a summary by Dr. Sally Satel (The Free Press), whom I know in some measure and whose work I've generally found to be thoughtful and balanced. She ultimately comes down in favor of acquittal, but the factual summary generally appears consistent with what I've heard from other news sources:

On January 24, 2023, Clancy took her children, one by one, into the basement of the family's home in Duxbury, Massachusetts. "Go to God, baby," she allegedly said as she asphyxiated each of them with exercise bands. She then made cuts on her wrists and neck, and jumped out of a second-story window in a suicide attempt that left her paralyzed below the waist. She did these things during the hour it took her husband to complete an errand she asked him to run.

The tragedy was the culmination of five months of anguish and help-seeking. Although Clancy said she initially felt well following Callan's birth in May 2022, she saw a psychiatrist in late summer for help with depression, severe insomnia, and feelings of being overwhelmed by simple tasks like dressing or showering.

Over time, she allegedly began having suicidal ideation and experiencing what have been variously described as "intrusive thoughts" and "auditory hallucinations" telling her that she was "damaged" and would "not be the same," and that "the only option is to die." In December 2022, she told her husband and mother that she had thoughts of harming her children and was worried that other people could hear those thoughts.

After Clancy's husband left to pick up food and medication on January 24, 2023, she said that a loud, demanding male voice told her over and over, "This is your last chance. You have to kill the kids so you can kill yourself." She allegedly entered "a dreamlike state" and watched herself act, feeling as if she had "no choice." A hospital chaplain who met with Clancy within weeks of the crime testified that Clancy said the voice "told her that if she did not follow the command, neither she nor her children would be safe."

From September 2022 to January 2023, Clancy received several formal diagnoses: adjustment disorder and generalized anxiety disorder at the Aster Mental Health clinic, and major depressive disorder at McLean Hospital. A psychiatric nurse practitioner raised the possibility of postpartum depression before the killings, though it was never formally diagnosed, and Clancy's bipolar disorder and PTSD were not fully diagnosed until afterward.

Why so many different diagnoses? And why might postpartum psychosis have been missed until after the killings? Unlike postpartum depression, a relatively common diagnosis that occurs in one out of eight deliveries, postpartum psychosis is rare, occurring just once or twice in every 1,000 deliveries.

Clancy's situation was also not textbook postpartum psychosis. She did not have symptoms for three months after Callan's birth, although, according to the DSM-5, postpartum psychosis manifests rapidly within the first month after delivery. Also, expert witnesses at her trial debated whether Clancy suffered actual psychotic episodes before the killing and whether the voice she heard in her basement on January 24 was a true command hallucination or merely an insistent internal thought that she chose to obey.

Also, Clancy did not consistently report suicidal or homicidal thinking or hallucinations to clinicians, perhaps because her mood and ideation fluctuated over the course of the day—a standard feature of postpartum psychosis….

In reaching these conclusions, I have accepted the truth of Clancy's description of the voice she heard and her explanation of why she followed its command.

I believe her account because absolutely nothing in her past foreshadowed her cataclysmic act. She was uniformly regarded by family members, friends, and her nanny as an excellent mother and a caring, sensitive woman. She had no history of aggression, child abuse, or violence—apparently, she had never even spanked her kids.

Nor is there an alternative explanation outside of psychosis: Clancy did not want to be rid of her children to be with another man, nor was she punishing her husband….

Note also that Clancy had apparently planned the killing:

Prosecutors believe that Lindsay planned to kill her three children by sending her husband to pick up takeout from a restaurant they didn't normally visit. She also reportedly used Apple Maps to determine how long it would take for him to return home.

That is not legally inconsistent with the insanity defense, which doesn't require a total loss of the capacity for rational thought, or a sudden impulse. But consider, as you're applying the legal rules, how you think this might or might not bear on the legal standard.

[D.] And here's the full instruction, which I've summarized at the beginning:

If the Commonwealth has proved the elements of the offense beyond a reasonable doubt, the Commonwealth must also prove beyond a reasonable doubt that the defendant was criminally responsible at the time of the alleged offense. Under the law, a person is not guilty if they lacked criminal responsibility when they committed the offense. This is sometimes referred to as not guilty by reason of insanity. There is no burden on the defendant to prove that they lacked criminal responsibility.

The Commonwealth may meet its burden of proving a defendant was criminally responsible for their conduct in either of two ways.

The first way is for the Commonwealth to prove beyond a reasonable doubt that the defendant did not suffer from a mental disease or defect at the time of the alleged offense.

A mental disease or defect need not fit into a formal medical diagnosis. It is a legal term, not a medical term. It does not, however, include an abnormality that presents itself only by repeated criminal or otherwise antisocial behavior. It is for you to determine from the evidence whether the defendant had a mental disease or defect at the time of the alleged offense.

The second way for the Commonwealth to prove a defendant was criminally responsible for their conduct is for the Commonwealth to prove beyond a reasonable doubt that, even if the defendant suffered from a mental disease or defect at the time of the alleged offense, the defendant nonetheless retained the substantial capacity to appreciate the wrongfulness or criminality of their conduct and to conform their conduct to the requirements of the law.

To establish that the defendant had the substantial capacity to appreciate the wrongfulness or criminality of their conduct, the Commonwealth must prove beyond a reasonable doubt that the defendant appreciated—that is, that the defendant knew or understood in some meaningful way—that their conduct was either illegal or wrong.

To establish that the defendant had the substantial capacity to conform their conduct to the law's requirements, the Commonwealth must prove beyond a reasonable doubt that any mental disease or defect that may have existed at the time of the alleged offense did not deprive the defendant of their ability to behave as the law requires—that is, to obey the law.

To summarize, if the Commonwealth proved beyond a reasonable doubt that the defendant did not have a mental disease or defect at the time of the alleged offense, the Commonwealth has satisfied its burden of proving that the defendant was criminally responsible.

Alternatively, if the Commonwealth proved beyond a reasonable doubt that, even if the defendant did suffer from a mental disease or defect at the time of the alleged offense, the defendant nonetheless retained the substantial capacity to appreciate the wrongfulness or criminality of their conduct and to conform their conduct to the requirements of the law, the Commonwealth has satisfied its burden of proving the defendant was criminally responsible.

Remember that there is no burden on the defendant to prove that they lacked criminal responsibility at the time of the offense. Rather, the burden is on the Commonwealth to prove beyond a reasonable doubt both that the defendant committed the offense, and that the defendant was criminally responsible at the time that they committed the offense.

If you have a reasonable doubt whether the defendant committed any one of the required elements of the alleged offense, you must find the defendant not guilty. If you have a reasonable doubt whether the defendant was criminally responsible at the time of the offense, you must find the defendant not guilty by reason of a lack of criminal responsibility….

The post How Would You Have Applied Massachusetts Law in the Lindsay Clancy Trial? appeared first on Reason Magazine.

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Plaintiff Sean Combs is a well-known musician who uses the stage names Diddy, P. Diddy, and Puff Daddy. In September 2024, he was indicted in this District on charges of racketeering, sex trafficking, and transportation to engage in prostitution, and in July 2025, he was acquitted by a jury of racketeering and sex trafficking but convicted of transportation to engage in prostitution.

This case concerns statements made about Combs in the months between his indictment and his trial. Combs alleges that Defendant Courtney Burgess falsely claimed to possess video recordings of Combs sexually assaulting celebrities and minors. Additionally, Combs claims that Defendant Ariel Mitchell—an attorney who represented Burgess—vouched for Burgess's accusations and made false statements of her own, including that a police report corroborated an accusation of rape against Combs and that Combs had used drug-laced baby oil to incapacitate his victims. Finally, Combs alleges that Defendant Nexstar Media Inc. ("Nexstar") amplified these falsehoods by broadcasting them on the cable news channel NewsNation without any investigation and despite reason to doubt their truth….

Burgess hadn't appeared to defend himself, so this opinion doesn't discuss the claims against him. But the court threw out most but not all claims against Nexstar:

Combs's defamation claim against Nexstar is based on four of the seven allegedly defamatory statements—Statements 1, 2, 4, and 5. Each of these statements arises from NewsNation's broadcasting of statements made by Mitchell or by both Mitchell and Burgess. Statement 1 is Burgess's assertion on October 31, 2024, that there existed video recordings of Combs sexually assaulting minors and celebrities, Statement 2 is Mitchell's statement also on October 31 that Combs secretly recorded himself having sex with people who did not know they were being recorded, Statement 4 is Mitchell's assertion on September 27, 2024, that a police report corroborated her client's claim that Combs raped her [likely meaning "him," which is to say Burgess] in 2018, and Statement 5 is Mitchell's accusation on October 7, 2024, that Combs used drug-laced baby oil to incapacitate people.

As to Statements 1, 2, and 4, Combs has failed to plead plausible grounds to allow an inference of actual malice [i.e., knowing or reckless falsehood -EV] on the part of Nexstar. Where, as here, a publisher broadcasts the allegations of a third party, actual malice exists only "where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." "Even highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers cannot alone establish actual malice."

To be sure, Combs alleges that NewsNation "conducted no investigation," did no "fact checking," and never "reach[ed] out to Mr. Combs's representatives for comment." But a failure to investigate, standing alone, "is not sufficient to establish reckless disregard." Similarly, although Combs alleges that NewsNation "profited" from broadcasting Mitchell's statements by "drawing viewers," a publisher's "motive in publishing a story … cannot provide a sufficient basis for finding actual malice." Even taking these two factors together is not enough to create a plausible inference of the "purposeful avoidance of the truth" that is required for actual malice at the pleading stage. If it were, then any profit-seeking news organization could face liability for its failure to investigate, contrary to the principle that a publisher is not "required to seek out contrary stories" to insulate itself from a finding of actual malice.

Combs also argues that Mitchell's and Burgess's lack of credibility should have been obvious to NewsNation. Combs alleges that Mitchell had a "documented history of making false claims against celebrities," based in large part on the yet-unproven accusation that Mitchell engaged in witness tampering in an earlier lawsuit where Combs was initially named as a defendant. But the Amended Complaint does not allege that anyone at NewsNation responsible for the broadcasts actually knew of Mitchell's history, and even if they did, an unproven accusation does not supply "obvious reasons" to believe that everything Mitchell said thereafter was false….

With regard to Statement 5, however, Combs has alleged facts that, in light of the relaxed standard at the pleading stage, allow a plausible inference that NewsNation acted with actual malice. The Amended Complaint alleges that Mitchell's claims that baby oil may be used as a "conduit" for transmitting drugs "mixed into the oil" and that Combs had doused her client in drug-laced baby oil to "lower[] her defenses," were so inherently improbable as to make broadcasting those claims reckless absent further investigation.

According to the Amended Complaint, "there is no scientific basis for asserting that baby oil could be infused with drugs to incapacitate anyone," and in the view of the Court, it is plausible that anyone who heard such a claim would at the very least entertain serious doubts as to its accuracy—even if they might not know it to be false. Cf. Khawar v. Globe Int'l, Inc. (Cal. 1998) (sustaining a finding of actual malice against a tabloid that republished the "highly improbable claim" that a bystander, rather than Sirhan Sirhan, had assassinated Robert F. Kennedy)…. Of course, none of this is to say that Combs ultimately will prevail against Nexstar as to Statement 5, but for purposes of the present motion, his allegation of actual malice suffices to survive Rule 12(b)(6)….

And the court allowed Combs's claims against Mitchell to proceed more broadly, based not just on Statement 5 but based on all four statements given above and also two others ("That Plaintiff used secretly recorded videos of him having sex with people who did not know they were being recorded in order to threaten or extort sexual partners" and "That Plaintiff sexually assaulted and/or threatened, exploited, or secretly recorded in sex acts 'hundreds, maybe thousands of people'"). Here's part of the analysis:

[A.] Mitchell argues that Combs has not alleged that she made statements of fact because her statements about her client's police report and the "shopping around" of sex tapes are not "capable of being proven true or false," all her comments "only follow[ed] statements by others," and any statements that can be attributed solely to her were "pure opinion" or "rhetorical hyperbole."

Mitchell's argument misses the mark. Whether a particular police report corroborates an allegation of rape and whether a particular sex tape exists are clearly questions of fact that are "capable of being proven false." Additionally, even if Mitchell was merely conveying Burgess's account, it is a "black-letter rule that one who republishes a libel [or slander may be] subject to liability … even though he attributes the [defamatory] statement to the original publisher."

Finally, Mitchell's accusations that Combs sexually assaulted celebrities and minors, secretly recorded his sexual partners, used those recordings to extort people, drugged a woman with drug-laced baby oil, and victimized "hundreds, maybe thousands of people" are not inactionable opinion or hyperbole because they carry precise meanings that are readily understood. Nor would anything about the context of interviews on national news programs, in a documentary, and on the courthouse steps, delivered by an attorney professing firsthand familiarity with the evidence, "signal [to] … listeners that what is being … heard is [not] likely to be [a] fact." …

[B.] Mitchell argues that her statements are shielded by New York's common-law protections for statements made in the course of judicial proceedings and the fair report privilege codified in Section 74 of the New York Civil Rights Law…. [But, among other things], each of Mitchell's statements were made to the media, and thus were not "words spoken in a judicial proceeding." … [And], Mitchell's statements were not a "fair and true report" of any official proceedings because Combs alleges that her statements "suggest[ed] more serious conduct than that actually suggested in [any] official proceeding."

[C.] [As to actual malice,] Combs alleges that Mitchell repeatedly professed personal knowledge of evidence that did not exist and that she had no basis to believe existed…. [A]ctual malice may exist "where a story is fabricated by the defendant" or "is the product of his imagination" …. For example, Mitchell confirmed that she could "tell that the video [of Combs] is pornographic in nature,", even though Combs alleges she "never possessed" any such video. She announced that "[w]e also have a police report," even though it is alleged that "there is no police report." She claimed to have done "research" showing that baby oil can transmit incapacitating drugs, even though she allegedly "performed no such research, and even if she had, there is no scientific basis for asserting that baby oil could be infused with drugs to incapacitate anyone."

In fact, Mitchell herself contends that she "did not even know Burgess" at the time of her September 27, 2024 interview, which suggests that Mitchell lacked any basis whatsoever to believe in the truth of any of her statements during that interview. Assuming the truth of Combs's allegations, as the Court must at this stage, he has plausibly pleaded actual malice by Mitchell. Simply put, a person cannot engage in this sort of "rootless speculation" and then try to hide behind the shield of actual malice.

The post Sean Combs (P. Diddy)'s Defamation Suit Can Go Forward (Including Against NewsNation) appeared first on Reason Magazine.

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

New on the Bound by Oath podcast: In 1966, Los Angeles officials tried to put a man in prison for handing out leaflets in protest of a fatal police shooting. Today, we know the case as Younger v. Harris, which kicked off the doctrine of Younger abstention, the bane of many a civil rights plaintiff. On this episode, we examine the origins, the impact, and the relentless expansion of the doctrine.

New on the Short Circuit podcast: You have a First Amendment right to record the police! And a Fourth Amendment right to not show ID! But if you exercise those rights, it's OK if you're arrested.

1. Infantryman Robert "Bowe" Bergdahl left his post in Afghanistan in June 2009 and was promptly captured by allies of the Taliban. After five years of captivity and torture, he was released in a prisoner swap. At court-martial, he pleaded guilty and was dishonorably discharged. Unknown to him, the judge presiding over his court-martial was seeking a job in the Trump DOJ and had submitted as his writing sample an order holding that then-candidate Trump's comments that Bergdahl was a "traitor" who "deserved the death penalty" did not constitute "unlawful command influence." Bergdahl files suit in federal court to vacate the conviction. D.C. Circuit: But we don't have jurisdiction over that sort of thing.
2. Convinced that the president is the antichrist, man fires multiple rounds from an AK-47 at the White House. No one is hurt; he pleads guilty to injuring a dwelling. Crime of violence? D.C. Circuit: Crime of violence.
3. Because we love you, we do research: This First Circuit opinion is, in fact, the first time a decision in the Federal Reporter has promised to "fill in the deets[.]"
4. Puerto Rican "nonbinary persons" challenge the commonwealth's denial of their request to change their birth certificates from what they said when they were born to "X." First Circuit: We're going to assume rational basis applies. And with that, the asserted legitimate interest in protecting privacy sounds good enough.
5. Long Island, N.Y. public-school teachers are ordered by the school district to take down pride flags. They sue, alleging violations of the First Amendment, among other things. Second Circuit: The displays covering the walls and doors of grade-school classrooms are something the gov't is allowed to control. We join the Sixth, Seventh, and Ninth Circuits in holding the rules for university professors don't apply here.
6. In which the Third Circuit holds that restrictions on out-of-state doctors' telemedicine practice are content-based restrictions on speech that would be subject to strict scrutiny … if not for the Founding-era history of gov't licensing of physician speech, which is hard cheese for the plaintiff physicians. (Wondering if the court's historical analysis is correct? Well, have we got just the article for you.)
7. Third Circuit: "[S]uppression is for misconduct, not mistakes." So no suppression for this hit-and-hold (a procedure by which police officers use warrants to track a box to a particular address, secure the box, and then search that address) that went awry when the recipient took the box to Apartment 1, rather than the Apartment 2 listed on the warrant, yet police searched Apartment 1 anyway. The cop made an isolated mistake—bad news for the defendant, who now must face the music of the discovery of five pounds of meth and a boatload of fentanyl.
8. Woman who has identified as a Jehovah's Witness, a follower of the Nation of Islam, and as a Christian, files a Title VII case against her employer after they fire her for not taking a COVID vaccine. Fourth Circuit (over a dissent): She was kind of hazy about how her refusal connected to religion, but we don't expect people to have degrees in theology. This is close enough to go to a jury.
9. Sunset, La. police chief handcuffs unresisting, innocent bystander who does not match description of suspect and then twists the bystander's wrist until it's injured. Now-former chief: That was unreasonable of me, but you know what else is unreasonable? Me paying this guy $3.5k in restitution. Fifth Circuit: Pay up.
10. Tennessee's Protecting Children from Social Media Act requires social-media companies to verify the ages of their prospective account holders and, if a minor, obtain parental consent before creating the account. A coalition of internet companies sue, seeking a preliminary injunction. The district court denies the injunction, holding that there's no showing of irreparable harm. Sixth Circuit: Clearly erroneous. The chilling of speech and the unrecoverable compliance costs the companies face are irreparable. Remanded to consider the other factors. Dissent: How can they be irreparably harmed? Maybe the Tennessee AG will just decide not to enforce the law against them.
11. A once-prominent Cincinnati spine doctor is accused of fraudulently billing Medicare, Medicaid, and private insurance companies millions of dollars for hundreds of unnecessary surgeries that left patients worse off. (He fled to Pakistan after the indictment and remains on the lam.) Civil litigation proceeded in his absence with his insurer defending and his appearing remotely for a few depositions. Sixth Circuit: The insurance policy excludes coverage for damages "in consequence of" fraud, leaving the insurance companies off the hook for the malpractice judgments. Moreover, the insurance company owes no duty of good faith beyond the now-former surgeon, so the patients cannot assert a bad faith claim there.
12. Oof! $250k watch goes missing during shipping; the owner's insurer pays them $250k and sues the shipper. Eighth Circuit: And wins! A whole $100, which is the limit of the liability under the shipping contract.
13. Find someone who loves you as much as Courthouse News Service loves suing state courts about their sclerotic document-processing practices (This time in the Ninth Circuit. Again.)
14. Under the Dodd-Frank Act, the Commodity Futures Trading Commission has exclusive jurisdiction over "swaps," which include "any agreement, contract, or transaction … that provides for any purchase, sale, payment, or delivery … that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence." Does that include "swaps" about whether the Patriots beat the spread against the Seahawks? Ninth Circuit: No, so Nevada's gaming laws are not federally preempted as applied to Kalshi's sports event contracts. (Circuit Split Alert! The Third Circuit disagrees!)
15. Canadian citizen living in Dubai allegedly ran a company selling encrypted Blackberry phones for use in drug-trafficking shenanigans. U.S. gov't indicts him and also civilly seeks to forfeit ill-gotten proceeds. Just one problem: He's never been in America, and his money is in Lichtenstein. Ninth Circuit: And it violates due process for a U.S. court to exercise in rem jurisdiction without first having control over the property. Concurrence 1: It also violates Article III because an opinion is just advisory unless the court actually controls the property. Concurrence 2: Constructive control solves the Article III problem. Dissent: I'd defer to Congress's foreign-policy judgment in conferring jurisdiction by statute in this type of case.
16. El Salvadoran in deportation proceedings submits evidence that it is more likely than not he'll be tortured if sent home. Board of Immigration Appeals: Denied. You don't have a quantitative study saying there's a 50 percent or higher likelihood. Ninth Circuit (over a dissent): Such studies rarely exist in these cases. There's a wealth of evidence here, including an expert who testified that "there is a near-100-percent certainty" that the guy will be put in a torture prison if sent back.
17. Legal writers have differing opinions on the value of lengthy footnotes, but we can all agree they're better when (as in this Tenth Circuit case about Utah's mandatory bar dues) they acknowledge circuit splits.

Live podcast! On Mon, Oct. 19, we're heading to Cambridge, Mass. to rue the 100th anniversary of zoning—and to cheer the 98th anniversary of the Supreme Court ruling that a Cambridge, Mass. zoning rule was a bridge too far. Plus, how Cambridge has made some good zoning reforms in recent years. With Molly Brady of Harvard, Vice Mayor Burhan Azeem of Cambridge, and Ari Bargil, leader of IJ's Zoning Justice Project. Space is limited so RSVP today!

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

Over the past decade, many legal challenges have turned on whether a particular position is an "officer of the United States" or an "office . . . under the United States." In the Foreign Emoluments Clause litigation, the plaintiffs argued that the President holds an "office . . . under the United States." In the Special Counsel's prosecution of Donald Trump, the former President argued that Jack Smith's position is properly characterized as a principal "officer of the United States" who must be appointed by the President pursuant to the Appointments Clause, rather than by the Attorney General. During the Amendment XIV, Section 3 litigation, state voters argued that Donald Trump was disqualified from serving as President because he took an oath of office as an "Officer of the United States" and the presidency was an "Office under the United States." All of these cases were high-profile and related to important political controversies. But there is another case pending in the courts that turns on the meaning of "Officer of the United States" that is far less in the news, but nevertheless has the potential to significantly reshape U.S. constitutional law. 

The qui tam provision of the False Claims Act ("FCA") authorizes relators to pursue a case against those accused of defrauding the federal government. In short, the relators can bring a suit in the name of the United States against private parties. The relators are not appointed by the President or the Attorney General (the head of the department). Any private citizen can bring suit as a relator. For decades, any number of conservative legal scholars and practitioners have argued that the qui tam provision violates the separation of powers. In 1989, William Barr, the Assistant Attorney General for the Office of Legal Counsel, put forward that position in a memorandum opinion for the Attorney General. But in 1996, Walter Dellinger, as head of OLC, repudiated Barr's views. More recently, in United States ex rel. Polansky v. Executive Health Resources, Inc., Justice Thomas wrote that "FCA's qui tam provisions have long inhabited something of a constitutional twilight zone." In 2024, in USA ex rel. Zafirov v. Florida Medical Associates, LLC, a federal district court in the Middle District of Florida declared the qui tam provision to be unconstitutional. Judge Mizelle found that relators are properly characterized as "officers of the United States," and therefore, they had to be appointed pursuant to the provisions of the Appointments Clause. Given that the relator in this case was only a private citizen, and was not appointed per the Appointments Clause, the lawsuit was dismissed. 

The Eleventh Circuit has now reversed the trial court. The unanimous panel held that relators are not "officers of the United States." The court remanded the case to the district court with directions to consider the defendants' remaining arguments in support of defendants' motion to dismiss based on the Take Care Clause and the Article II Vesting Clause. 

In this blog post, we will walk through the circuit court's analysis that relators are not "officers of the United States," and we speculate on the next steps for this case. A starting point for interested readers is the amicus brief we filed before the Eleventh Circuit in the challenge to Special Counsel Jack Smith's appointment. We tried to bring some clarity to what is an otherwise complicated area of law: Where is the line between an "Officer of the United States" and a mere employee?

The crux of the Eleventh Circuit's decision is that relators "do not hold a continuing position," and therefore, they are not "Officers of the United States," and thus, they do not need to be appointed by the President or the Attorney General. The Eleventh Circuit correctly cites the Supreme Court's recent decision in Lucia v. SEC, which stated that an "officer of the United States" position must be a "'continuing' position established by law." This test from Lucia stretches back to three nineteenth-century decisions. United States v. Hartwell (1868) stated that the term officer "embraces the ideas of [i] tenure, [ii] duration, [iii] emolument, and [iv] duties." United States v. Germaine (1879) further explained that the "duties" of an "Officer of the United States" must be "continuing and permanent, not occasional or temporary." The Court would apply the Germaine-Hartwell framework in Auffmordt v. Hedden (1890).

Lucia primarily focused on a single factor of the four-factor Germaine-Hartwell test: continuity. What has created some confusion is how to map Lucia's "continuity" test to the factors of the Germaine-Hartwell four-factor test. What must be "continuous"? Must the "tenure" be continuous? Or, must the "duration" of the position be continuous? Or, must  the duties be "continuous"? Before Lucia, the courts never squarely addressed this issue. But after Lucia, this question may no longer matter. The requirement that matters now is continuity. But what does it mean for a position to be "continuous"?

The Eleventh Circuit adopted the framework from Auffmordt and an earlier circuit court decision from Chief Justice Marshall, United States v. Maurice. The Eleventh Circuit panel stated:

So in determining whether a person holds a continuing position established by law, the Supreme Court has evaluated whether that person holds a "permanent" tenure, whether his employment has "duration as to time," and whether he receives a "continuing emolument." Auffmordt v. Hedden, 137 U.S. 310, 327–28 (1890); Germaine, 99 U.S. at 511–12. And with respect to "duties," Chief Justice Marshall asked "if [the] duties continue, though the person be changed." United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C.J.); see also Auffmordt, 137 U.S. at 327 (relying on Maurice in a continuing-position analysis). 

The Eleventh Circuit links up the "continuous" requirement from Lucia with the "tenure" prong, the "duration" prong, the "emoluments" prong, and the "duties" prong. Again, Lucia collapsed the four-factor inquiry to a single requirement of "continuity," but the Eleventh Circuit went back to all four factors from Germaine-Hartwell. As we said, there is a lot of murkiness in this doctrine. Moreover, if you think the Germaine-Hartwell framework is confusing, read all of Maurice—not just the famous quotes—and try to make sense of it.

First, the panel addressed if a relator's tenure is "'permanent' as opposed to 'occasional or temporary.'" The court found that "a relator's tenure is occasional and temporary because it lasts the length of one case, a relator may bring multiple cases in a year or none, and relators are not required to keep a place of business." The panel added that if "the government or the court dismisses a relator's case or if the case settles, the relator has no remaining duties." Here, we think the panel incorrectly conflated "tenure" and "duties." 

Second, the panel ruled that "duration" is not measured by how long the relator holds his position. Some "relators litigate actions for multiple years . . . but the Supreme Court has not focused on the overall length of a person's time fulfilling his duties when evaluating the duration of the position." The panel, citing Germaine, explained that the Supreme Court "evaluated duration the same way it assessed 'tenure'—by asking whether the surgeon's duties were 'permanent' or 'occasional and intermittent.'" Here too, we think the panel incorrectly conflated "tenure," "duration," and "duties." One might ask if "duration" and "tenure" were meant to be assessed the same way, why the Hartwell-Germaine four-factor test listed them as separate factors. 

Third, the panel ruled that a "judgment in a successful FCA case" would result in a "one-time" award that would not be a "continuing" emolument. We think the court was in error to impose a continuity requirement on emoluments. Indeed, in Hartwell-Germaine referred to emoluments, plural, and not singular. Our view is that the continuity of a position does not depend on whether a person is paid one time up front, at regular intervals multiple times, or one time at the conclusion of his service. Hartwell-Germaine only requires that an officer receive emoluments. The Eleventh Circuit was trying to connect continuity to all four factors. But the Supreme Court in Lucia, which focused primarily on continuity, seemed to announce a new test with roots in Hartwell-Germaine, but different from Hartwell-Germaine. We think the Eleventh Circuit erred in connecting the emoluments factor from Hartwell-Germaine to whether a position is continuous.

Fourth, citing Maurice, the panel found that "A relator occupies a personal role, not one where his 'duties continue, though the person be changed.'" What happens if the relator dies or goes into bankruptcy? Here, there was a disagreement of fact between the parties. The court ruled that in the case of death or bankruptcy, "another relator does not replace the deceased or bankrupt; instead, a personal representative or trustee of the relator's estate can carry forward the case on his behalf." The defendants further argued, quoting from the district court, that "the office of relator is 'continuous even if it is not continually filled,' and it is generally held at any given time by numerous private parties conducting litigation on behalf of the United States." The panel also rejected this argument: "the defendants' argument improperly analyzes whether the office is a continuing one, when the proper inquiry is whether an individual occupies a continuing position." We are not entirely sure what the court meant by distinguishing a "continuing position" and a "continuing [office]." The office is the position. We do not see the difference the court is suggesting. 

We have no expertise on the mechanics of the FCA. But we can draw an analogy to the Independent Counsel Statute at issue in Morrison v. Olson. We explained in our amicus brief:

First, with the Independent Counsel Statute, Congress "established by law" a permanent umbrella office structure that could embrace multiple independent counsels. Indeed, throughout the 1980s and 1990s, there were many overlapping independent counsel investigations at any one point in time-all under the auspices of the same statutory framework.

In our view, if there is such an umbrella office structure, the position would be continuous. But again, we offer no special insights into how the FCA operates.

The panel concluded: "In sum, we find that, while the length of any given FCA case is uncertain and variable, relators have temporary tenure and duration, no continuing emolument, and personal duties, so they do not occupy a continuing position." But that ruling did not end the case. The panel remanded the case to "evaluate the defendants' Take Care Clause and Vesting Clause arguments."

The Eleventh Circuit held that the relators were not "Officer of the United States." But if the relators are not "Officers of the United States," what are they? A footnote in the opinion states, "We assume without deciding that Lucia's framework governs relators, who are not government employees." It is not clear that this conclusion flows from Buckley and its progeny. Our reading of Buckley is that when an official exercises power granted under a federal statute, if they are not an elected official, and are not an "Officer of the United States," then they are an employee. We readily admit that this triumvirate of federal officialdom poses some problem with historical practice. But we think that issue is something the Eleventh Circuit should have attempted to resolve on this occasion. In other words, if relators are not "officers of the United States," we think they must be "employees." And if relators are "employees," then, under Buckley, they cannot exercise "significant authority." Whether relators are exercising "significant authority" is the crux of the issue on remand. 

As we read Buckley v. Valeo and its progeny, only "officers of the United States" can exercise "significant authority." (We admit this point is not entirely clear from the Court's analysis.) Under this precedent, if relators are not "officers of the United States," then they cannot exercise "significant authority." Buckley, however, did not explain why employees cannot exercise "significant authority." One possible textual hook for this position is the Take Care Clause. The President has a duty to supervise that his subordinates are faithfully executing the law. Decisions like Trump v. Slaughter and Seila Law v. CFPB held that the President's greatest authority to supervise subordinate officers is through the removal power. But it isn't clear that the President can fire employees that he did not appoint. Indeed, there is active litigation about whether the President can remove civil servants. One might ask: If employees are vested with significant policy-making authority, and if they are insulated against oversight, then what happens to democratic accountability and the President's duty to see that subordinates faithfully execute the law?

For argument's sake, we will assume that the President can remove a relator at will who is exercising "significant authority." Would that removal authority eliminate problems under the Take Care Clause? We are not so sure. Indeed, the relator has the authority to bring the suit in the first instance on behalf of the United States. That action can subsequently be dismissed within the 60-day "seal period." Or the United States can take over the case. But action is taken, even if briefly, by someone without the President's knowledge. Imagine that Congress authorized private citizens to convene grand juries and bring criminal indictments that could later be dismissed by the United States Attorney or the Attorney General. Private criminal prosecutions? Would this regime violate the President's ability to supervise that the laws are being faithfully executed? Or is there perhaps a sufficient difference between a civil false claims action and a criminal indictment?

Beyond the Take Care Clause, we think the Executive Vesting Clause may pose another potential problem for the relator's case. Can Congress vest the authority to bring this suit in a private citizen in the first instance? In other words, if this sort of suit is a "significant" exercise of executive power, can it be delegated to a private-party relator?

So far, all of these arguments are based on precedent. These precedents, we think, have to confront longstanding practice. The qui tam provision has been on the books since the First Congress . Justice Thomas addressed this point in Polansky:

The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes.

We suspect this case is far from over, and we will follow it with some interest.

[This post is co-authored with Professor Seth Barrett Tillman.]

The post Eleventh Circuit Holds Qui Tam Relators Are Not "Officers of the United States." What Happens Next? appeared first on Reason Magazine.

The panel opinion, which I join, states that "every attorney who signed the brief bears some responsibility" for inclusion of fake citations. I agree with that general principle, subject to a clarification as to what I think it must entail. The opinion also quotes, with evident approval, the Ninth Circuit's declaration that "[a] competent and diligent attorney cannot decline to 'vet' citations, in a brief he signs, for substantive validity—in other words, to read the cited authorities and ensure that they are on point." In the appeal that the Ninth Circuit had before it, there was only one signatory on the brief in question.

If the quoted statement is understood to mean that every signatory on any brief with multiple signatories must personally check every citation in the brief for accuracy, I demur….

Preliminarily, the term "signatory" may be misleading. Appellate briefs commonly list the names of multiple attorneys for the party on whose behalf the briefs are submitted. Ordinarily, only one of those attorneys actually signs the brief. For present purposes, though, all the named attorneys are deemed to be "signatories" who stand behind and who (usually, but not always) contributed to the brief. (It is not unreasonable for a brief to list the attorneys who represent the party in the appeal even if they did not personally contribute to the brief or were not its principal drafter(s).) This does not mean, however, that all these "signatories" necessarily have exactly the same responsibilities for ensuring that the brief comports with ethical and other requirements.

Fulfilling the duty to guard against AI-hallucinated (or otherwise invalid) citations can be a group effort that does not require every signatory to personally cite check every brief. Such a requirement would be impractical, unduly burdensome, and unnecessarily duplicative given the availability of reasonable alternative procedures to guard against erroneous citations. {See Lake v. Gates, 130 F.4th 1054, 1062 (9th Cir. 2025) (Bumatay, J., concurring in the judgment only) (Disagreeing with the majority's conclusion that federal Rule 11 allowed the trial court to sanction an attorney who participated on a brief as "of counsel" and only contributed a discrete portion to the offending brief, because "[a]s a textual matter…, Rule 11 permits different levels of accountability for different attorneys in a case…. To encourage the participation of specialized attorneys and to improve the quality of advocacy in our courts, we should have adopted a rule that recognizes the circumscribed role that some attorneys with subject-matter expertise may play in litigation.").}.

Suppose, for example, that a law firm assigns different sections of a complex brief to different associates for initial drafting. Each associate is certainly responsible for the accuracy of the citations in his own assigned section; in general, this cite checking is a task that the principal drafter (or drafters) of a brief must perform. But that hardly means each associate must also be charged with double-checking a section assigned to and drafted by another associate.

Or consider the typical brief this court receives from the United States Attorney's Office in criminal appeals. Every one of those many briefs lists not only the author (who is also the designated counsel for oral argument) but also the Assistant United States Attorneys who represented the government at trial (who may have been consulted by appellate counsel but who have nothing to do with the drafting of the legal arguments in the brief); the Chief of the Criminal Appellate Section (who oversees the production of a multitude of briefs and can hardly be expected to spend all her time checking all the citations in that multitude); and the United States Attorney herself (ditto). It surely would be unrealistic, as well as unnecessary overkill, to require each of those attorneys to cite check any given brief.

Other, far more practical procedures can be followed to ensure that AI-generated hallucinations do not result in the inclusion of fake citations in briefs and other filings. I suspect that the problem of fake citations (along with other AI-generated errors that I describe below) arises primarily when lawyers unwisely ask AI to draft a brief from scratch for them, a practice that supervisors can (and, I think, should) ban outright. (I will say more about this below.)

That said, law firms and law departments may institute supplemental measures to guard against AI-hallucinated citations and other AI-generated errors in their briefs. Such measures include training (and retraining) attorneys in the proper use of AI; adopting clear policies governing such use and providing for discipline when appropriate; and requiring attorneys to confirm that they have complied with those policies. The likelihood that any fake citations will eventually come to light, and that the consequences for the offender will be drastic, should be made very clear.

In addition, to the extent it is desirable to double check the citations and case descriptions in all briefs before they are filed, such "vetting" may be done cost-effectively by a trained paralegal. Triple and quadruple checking by other attorneys (whether they are signatories on the brief or not) is uncalled for and would be unduly burdensome and costly.

{I should not be understood as suggesting that only a lawyer who did the actual drafting of a brief containing fake citations (or other AI-generated errors, see infra) may be subject to sanction. For example, if training and oversight have been neglected, I think supervisory lawyers may be accountable as well.}

As the opinion itself suggests, other judges may disagree (see, e.g., this post), and lawyers certainly shouldn't feel comfortable that they'll get off the hook for hallucinations so long as they weren't the person drafting that part of the brief. And of course, regardless of whether there are any formal sanctions on the lawyer, such hallucinations risk losing the case for the client, risk damaging the firm's reputation, risk a malpractice lawsuit for the firm, are likely to undermine the client's relationship with all the lawyers at the firm, and more. Still, the judge's point that it's not reasonable to expect every signing lawyer to personally check each citation seems sound to me.

The post Lawyers' Responsibility for Hallucinations in Briefs That They Sign appeared first on Reason Magazine.

From Douglas v. Deutsche Bank Nat'l Trust Co., decided yesterday by D.C. Court of Appeals Judges Catharine Easterly, Vijay Shanker, and Stephen Glickman:

What began as a routine appeal has become a cautionary tale about the misuse of artificial intelligence (AI) and its consequences for attorneys, their clients, and the courts…. While reviewing appellee's [i.e., the Bank's] brief, the court discovered that it contained multiple citations to cases that the court was unable to locate or confirm as legitimate. On June 22, we issued an order requiring appellee to show cause "why the court should not strike its brief for citing nonexistent cases that are possibly the product of artificial intelligence (AI) hallucinations."

The next day, one of appellee's attorneys at the firm, Loishirl W. Hall, filed a response in her own capacity. Ms. Hall confirmed that four of the brief's cited authorities did not exist. She acknowledged that these citations were "not legitimate legal authority" and "should not have appeared in a brief filed with this Court." {Ms. Hall has informed the court that she no longer works at the firm and thus no longer represents appellee, although appellee has not moved for her withdrawal from the case.}

Ms. Hall explained that she had "used Google's generative artificial intelligence search tool to assist in locating case authority" and did not verify the existence or accuracy of those citations before filing the brief. She recognized that she had a duty to verify the accuracy of every authority submitted to this court and apologized for her failure to do so. As part of this mea culpa, Ms. Hall assured the court that she had taken the remedial measure of verifying that the remaining citations in the brief were legitimate authority and pledged that, going forward (presumably in her representation of other clients), she would not rely on any AI tool "for legal research without confirming each authority" or file anything that includes citations she has not independently verified. Ms. Hall represented that she "deeply regrets this error and the burden it has placed on the [c]ourt and all parties."

The firm subsequently filed a response for appellee. The firm stated that it was "unaware" of Ms. Hall's actions when the brief was filed. Although two other attorneys—Jianna Jaques Santos and Michael T. Cantrell—were listed on the brief with Ms. Hall, no information was provided about their review of appellee's brief before filing. Instead, the firm represented that it "only became fully aware of the situation" (emphasis added) once the court issued its show-cause order and Ms. Hall responded. The implication—that the firm did nothing after the court issued its order to become "fully aware" on its own that it had included fake case citations in its brief—is surprising, to say the least. The firm then shifted much of the blame to Ms. Hall, who had stated in her filing that she had never filed an appellate brief before this one.

The firm represented that it prohibits employees from using AI in the "drafting of any legal correspondence or documents" and that failing to verify citations "obtained in any manner, which includes the use of artificial intelligence, is a violation of firm policy" of which all employees are made aware during initial and annual employment trainings. The firm did not attach the policy for this court's review. Highlighting that "these actions were taken by a former employee" of the firm, and without detailing what actions the firm had taken to supervise or review Ms. Hall's work, the firm acknowledged only that "further review should have been undertaken." The firm then assured the court that it was "genuinely remorseful for this failure" and that it intends to take appropriate measures to ensure that this "type of situation" never occurs again.

In replying to Ms. Hall's response, Mr. Douglas asked the court to, among other things, deny Deutsche Bank an opportunity to file a corrected brief. He registered incredulity at the fact that "a competent law firm representing one of the largest financial institution[s] in the world could make" such a mistake. Mr. Douglas did not file a separate reply to appellee's response to the show-cause order.

As we discuss below, we echo Mr. Douglas's incredulity….

You can read the full opinion for more details, but here's the bottom line as to sanctions:

To be sure, some of the cases cited in Deutsche Bank's response brief are genuine and some of the propositions of law are sound. But we "reject any notion that because some authority exists to support a legal proposition it should negate the harm caused by hallucinated cases. Put bluntly—absolutely not; period; end of story; all stop." We caution that citing to even a single fake case can be sanctionable because "no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that" an attorney has not personally "read and verified." Competent legal representation requires the investment of significant time and effort; if an attorney deems their client's claims as "not worth the effort, [they] should either tell [their] clients that they fall short or advise them to hire another lawyer—not file obviously insufficient pleadings and briefs generated by AI tools."

It is axiomatic that our rules exist to ensure the orderly, prompt, and just disposition of appeals. These rules exist not for the convenience of the court but for the benefit of litigants and counsel who have a right to rely on them and must comply with them. We cannot condone disregard of court rules, whether willful or negligent. As such, we deem it appropriate to strike appellee's brief. {The firm suggested that the court could accept the appellee's brief as filed but with the erroneous citations redacted. We reject this suggestion, as it would constitute effectively no sanction at all.}

We also refer this matter to the Office of Disciplinary Counsel for any investigation it deems appropriate.

Judge Glickman concurred to discuss the scope of D.C. courts' sanctioning authority, but also added this (as well as another matter that I note in a separate post):

Bad as AI-fabricated citations are, we should recognize that they are only the tip of a perilous iceberg. That iceberg is the use of artificial intelligence not only to research the law but also to draft a brief. This temptation is the more serious evil, and not just because of hallucinated citations.

To begin with, the fallibility of AI as a tool for lawyers is by no means limited to invalid citations. Notably, as the Ninth Circuit explained in Malkeet Lnu v. Blanche (9th Cir. 2026), generative AI "is prone to make, at least in its current stage of advancement," two types of mistakes—not only fabrications, but also what the court described as "inaccuracies":

Fabrications are instances in which the generative AI tool provides cases or quotations that do not exist at all. Inaccuracies are more subtle. The generative AI tool might cite to real authorities but provide an answer that is legally or factually inaccurate or not supported by the citation.

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

And inaccuracies are common, even in newer generation models that produce fewer fabrications. Including inaccuracies, legal-specific generative AI tools from Westlaw and Lexis hallucinated 17% and 33% of answers, respectively, to a representative set of queries run in 2024. The most common error modes of the latest generation tools include misunderstanding holdings, failing to distinguish between legal actors (e.g., presenting a rejected party argument as the holding of the court), and failing to respect the hierarchy of authorities. In other words, the sort of errors that we might expect a first-semester law student to make, but certainly not licensed attorneys appearing before this court.

Even worse, perhaps, is the fact that relying on AI to do the "thinking" necessary to draft and refine a brief—even what is intended to be only a first draft—is an abdication of the lawyer's duty and a breach of the client's (and the public's) trust. Lawyers are entrusted with the responsibility to use their own unique human experience, insight, and creativity in employing their skills, learning, and judgment to write, advocate and persuade; and, in doing such writing, to choose among options and alternatives; to select and comprehend precedents and authorities; to make moral and ethical decisions; to evaluate which claims and contentions to pursue and which not; and so forth. AI cannot duplicate that multifarious exercise of human judgment and ingenuity in the "thinking" enterprise.

We do not know in this case whether Ms. Hall relied on Google not only to find case citations, but to draft her brief. I hope she did not do so, and that lawyers will refrain from such conduct.

The post "Incredulity" That "Competent Law Firm Representing One of the Largest Financial Institution[s] in the World" Filed Brief with AI Hallucinations appeared first on Reason Magazine.

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As KY3 (Paul Adler) notes, "[a] graphic on [Rep.] Eric Burlison's website resembles the Great Seal but replaces the quiver of arrows with an AR-15 style weapon." The question is: Is that legal?

I say yes, for various reasons, but most importantly the First Amendment. The First Amendment protects the right to fly the American flag—that is to say, your own copy of the flag—with a peace symbol attached, see Spence v. Washington (1974). Of course, it famously protects even the right to burn the flag. It likewise protects your right to display a copy of the great seal with some technological updating (unless, of course you're doing so to knowingly impersonate government officials or to otherwise defraud people in various ways).

Here's the video of the KY3 segment on the matter:

And, as a special bonus, with thanks to Wikipedia, the flag of Mozambique:

The post If You Replace the 13 Arrows on the U.S. Great Seal with a Modern Rifle, Make Sure You Depict a 50-Round Magazine appeared first on Reason Magazine.

Via email, Plaintiff has informed the Court that it will not be pursuing preliminary injunctive relief…. Plaintiff has also indicated an intent to amend its Complaint…. Finally, it appears that the Clerk sealed the documents filed by Entergy in error …. Docs. 2, 3, and 4 should be unsealed. Plaintiff has confirmed that it never intended for these documents to be sealed in the first place.

The unsealing reveals that the plaintiff's brief in support of the TRO motion didn't even discuss the First Amendment elephant in the room, even though it was pretty obvious that the judge would recognize that a lawsuit seeking to restrain a newspaper's publication would raise such an issue.

The post Brief Update on the Entergy / Arkansas Democrat-Gazette Matter appeared first on Reason Magazine.

Back in 2007, here at the Volokh Conspiracy, I had a post on how to excel on law school exams.  I have heard that the post is still read among law students, so I decided to expand on that post and turn it into a more helpful essay for today's students to read.

I finally finished the draft, and I posted it on SSRN yesterday.  You can read it here:  How to Excel on Law School Essay Exams: A Guide for Students.  It begins:

This Essay offers guidance on how law students can earn high grades on law school essay exams. It starts with the goals law professors have when writing exams, which then frames what counts as a poor or strong performance. The essay then presents a hypothetical exam question with four answers, and it grades the answers to help explain what makes the different answers better or worse.

This is just a first draft, and I plan to improve it over the semester, so please send specific suggestions for improvement to me at okerr at law dot standord dot edu.  I'm particularly interested in feedback from other law professors, as I'm trying to capture how grading looks from the faculty perspective, all to help students do their best.

I see this essay as a companion piece to my 2007 essay, How to Read a Legal Opinion: A Guide for New Law Students, and also last year's video, So You're About to Start Law School: A Guide to the First Month.  The goal of all three has been to share the insider knowledge that connected people have with everyone else, so that students without connections start off on more equal footing and law school on the whole is more fair.

The post An Essay on How to Get Top Grades On Law School Exams appeared first on Reason Magazine.

The court concluded that, even "assuming arguendo that there's a fair chance that the press defendants have violated the federal and state trade secrets provisions," the First Amendment would preclude the TRO:

What Entergy is asking for with regard to the press defendants is actually or is the equivalent of a prior restraint. Entergy is asking that the Court prevent the press defendants from publishing news articles that include information Entergy believes to be trade secrets….

[S]ome of [what follows] are quotes, some of these are slight paraphrases…. The Supreme Court has held that "prior restraints of expression come to courts bearing a heavy presumption against constitutional validity." … Bantam Books v. Sullivan (1963). "Prohibiting the publication of a news story is the essence of censorship." … Matter of Providence J. (1st Cir. 1986)…. "A plaintiff must make an extraordinary showing of harm in order to obtain a court order that stops the news media from publishing information on a matter of public concern." New York Times v. U.S. (1971)….

The prior restraint doctrine has been applied in the context of trade secrets cases as well, and although the Court acknowledges that in this context, just as in some other contexts, courts continuously note that not all prior restraints are per se unconstitutional…. [T]here is an absence of cases where a court has actually prevented the press from publishing trade secrets. Indeed, as I understand it from yesterday, plaintiff has only pointed to one case from the California Supreme Court. And, quite frankly, that case is both unpersuasive and very far afield from the facts of our case.

Overall, … courts in trade secrets cases have noted that "To justify a prior restraint on pure speech, publication must threaten an interest more fundamental than the First Amendment itself." Procter & Gamble Co. v. Bankers Trust Co. (6th Cir. 1996)…. This exception to the prior restraint rule, a very, very small exception for when publications threaten an interest more fundamental than the First Amendment itself, has turned out to be extremely, extremely narrow, which, again, is really no surprise given the language of the Supreme Court and other cases used to describe that narrow exception. The Supreme Court has held that, "Even where questions of allegedly urgent national security or competing constitutional interests are concerned," it has imposed this most extraordinary remedy, meaning prior restraint, "only where the evil that would result from the reporting is both great and certain and cannot be militated by less intrusive measures." CBS v. Davis (1994) (Blackmun, J., in chambers)….

[But t]roop movements, obviously, things of that nature, military secrets are not what is at issue here…. If threats to national security are only sometimes sufficient to warrant a prior restraint, the threat to plaintiff's trade secrets are woefully inadequate…. Religious Technology Center v. Lerma (E.D. Va. 1995). There is no case the Court or Entergy itself appears to be aware of in the entire federal system that holds otherwise…. I want to emphasize, this is a TRO [temporary restraining order] ruling. For a PI [preliminary injunction] ruling, I will have more time to do additional research, and maybe I will find that that's not the case. But so far, that's where we are.

In any event, Entergy's stated harms are in my view also much too vague to overcome the vital First Amendment interest here. As … Justice Brennan said in a concurring opinion in [New York Times v. U.S.], "The First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result." In my view, Entergy's contentions that the publication of pricing information and contract terms will actually harm its ability to negotiate with similar entities in the future is at best and on this record speculation.

Whether there will be such harm and how great or little the harm would be with respect to Entergy's negotiating positions in the future is unclear to me at this point. It's certainly not clear enough to overcome the First Amendment prior restraint doctrine.

I'll also note here that to the extent we had any conversations yesterday about interests that were sort of not Entergy's, meaning interests that were Entergy's negotiating partner's interests, that negotiating partner is not here. They are not a plaintiff in this suit, and so I am not considering those interests….

[Entergy also] argued that the prior restraint doctrine only applies to matters of significant public concern …. [But t]he information that Entergy alleges to be trade secrets in my view does constitute a matter of public concern, and that's true for a few reasons.

First, from what the Court heard yesterday, it appears that the pricing information and other terms of the contract have, at the very least, an indirect effect on ordinary ratepayers throughout Arkansas…. Arkansans certainly have an interest in why their electric bills are whatever they are.

Relatedly, while Entergy is a private company, it is also properly thought of as a public utility, and as the Court understands it, Entergy essentially or close to essentially has a monopoly—again, maybe something close to it; the record needs to be more developed on that point—over Arkansans' electric services. Given this monopoly or something close to a monopoly and the public nature of Entergy's business, including the need for PSC [Public Service Commission] approval generally and specifically related to this deal, Entergy's workings, its dealings, and the details of its business arrangements, especially with large users of power, for example, Altitude or Google, are matters that an ordinary Arkansan citizen may very well want to be aware of. {And I do want to, again, emphasize here I am making these determinations on a completely undeveloped record; nobody's fault again, but just given that this case is a day old.} …

Nothing that I'm saying should suggest in one way or the other, you know, whether this stuff can be discoverable under FOIA [Arkansas's Freedom of Information Act], whether the PSC should release this information, whether or not the PSC should have a protective order in place to cover this information; that is not my point here. My point is that taking as a baseline that this information has somehow gotten its way to the press, I have to decide whether or not it's of public interest with respect to the First Amendment.

I will also add here, there is nothing that I heard yesterday that suggests the Arkansas Democrat-Gazette or the other press defendants sort of, you know, nefariously got this information, or, you know, sort of were using Ms. Kivell or anyone else as a stooge to get this information. What I understand is through no sort of, you know, attempt of its own in these particular narrow circumstances, the information was given to the Arkansas Democrat-Gazette freely after the PSC provided it to Ms. Kivell….

A public utility company's [one-off] arrangement with a large datacenter may very well have repercussions across the state presumably, or at least potentially, in both very positive and potentially or presumably very negative ways, too. That is precisely why these sorts of service agreements must be filed in the first place with the Public Service Commission and the Public Service Commission gets to review them. The point being here, the Public Service Commission doesn't get to just review any private business's information. Part of the reason they get to review Entergy's dealings is because Entergy is not just any old private corporation. It has a significant public sweep and public import.

Certainly, and I want to be clear about this, not all trade secrets of all businesses, or even all trade secrets of Entergy, will be matters of significant public concern. {[For instance, in] Purdy v. Burlington Northern Santa Fe Railroad Company (D. Minn. 2000),] … the Court enjoined the publication of Social Security numbers and salary information in connection with names of employees, and the Court concluded that doing that did not run afoul of the First Amendment, and that would be, I think, a fairly good example … of things that are truly just a matter of private concern and very clearly a matter of private concern.} But the ones at issue here, the ones that I've been pointed to that were in the paper and the ones I've been pointed to in the closed session yesterday that haven't been in the paper yet seem to be issues of significant public concern, at least on the Court's read of this very young and underdeveloped or undeveloped record….

I have used a fairly low, some might even say very low, threshold of what constitutes a matter of significant public concern. I think that's appropriate based on what the case law is on this issue, and I also think it's appropriate considering the fact that it's a very concerning thing for a judge, who is an official member of the government …[,] to be the one to get to decide whether something is or isn't a matter of public concern and to say … whether it falls on just the purely private side or the purely public side…. I'm required to do it, and so I have to give it my best shot. But … if I'm going to make an error here, I'm going to make an error leaning towards it being a matter of public concern as opposed to a matter of private concern. I think that's consistent with the [Supreme] Court's both explicit and implicit approach….

[I]f there is any fixed star in our constitutional constellation, it's the idea that the government cannot censor the press except in the rarest of circumstances not at issue here. In my view, that is a quintessentially American commitment, and it is enshrined in the First Amendment to our constitution. Granting Entergy's request for a TRO would flout that commitment.

And the court concluded that its analysis applied equally to the request that the court "order that the Arkansas Democrat-Gazette remove from its website stories that it published earlier this week" and that it destroy its copies of the documents:

[T]hese two requested actions would affect the press's ability to report and maintain public access to its reporting in a way that makes the actions prior restraints in everything but the most technical sense. So I think the prior restraint rules and doctrine apply even to those parts of the request….

[Moreover,] the information in the articles that have already been published is actually already out in the world. We can't put that particular genie back in the bottle, especially given modern technology like the Wayback Machine. The Court is not saying there would be absolutely no benefit to Entergy from removing these articles, but … the benefit would be exceedingly small.

Similarly, even if the Court ordered the press defendants to destroy the documents, they have already seen the information claimed to be trade secrets. Accordingly—and, again, the Court is not saying that there would be no benefit to Entergy from removing the documents and removing the documents from the press defendants, making them destroy them and also removing the articles, but the Court is saying that the benefit would be exceedingly small because the press defendants already have that information and could publish articles on it.

On the other hand, as the Court has explained above, the public and the press have significant interest in this information, even if the information should never have gotten out in the first place. Forcing a newspaper to take down articles or wrestling information out of a newspaper's hands is a serious harm … [that] significantly … cut[s] against a TRO …, even if we could sort of bypass the First Amendment prior restraint doctrine….

The court stressed, however, that this decision didn't imply anything "one way or the other whether the press defendants could face damages liability here"; that question wasn't before the court at this point. The judge added,

I guess I will say to you so you all sort of know where my head is at, it does seem like Entergy has a fairly good argument that some of the things it pointed to yesterday are actually trade secrets. So, you know, I guess the point here is, for the press, you're sort of proceeding …. at your own risk, right? It may turn out that there is a viable and constitutional damages claim against you. It may turn out that there is not a viable or constitutional damages claim against you. I just want to be very clear with everybody that I am not deciding that issue.

John T. Adams (James & Carter PLLC) represents defendants.

The post Judge's Opinion Denying TRO Against Arkansas Democrat-Gazette as to Publishing of Data Center Plans appeared first on Reason Magazine.

USA Today just published my op ed entitled ""Democratic Socialists and MAGA Share a Dangerous Flaw." Here's an excerpt:

Beginning with New York City Mayor Zohran Mamdani's election victory in 2025, democratic socialist candidates have won a string of major Democratic primaries – most recently Florida state Rep. Angie Nixon's upset U.S. Senate nomination win – and come close in several others. Vermont Sen. Bernie Sanders has long been the most prominent self-proclaimed democratic socialist in national politics, and was the runner-up for the Democratic presidential nomination in both 2016 and 2020.

Democratic socialism is a terrible ideology. If implemented, its agenda would cause grave harm and imperil democracy itself. And in seeking massive state control of the economy, today's socialists ironically have much in common with the MAGA nationalists they claim to oppose.

Both promote government control over the economy, and both paths undermine liberty, prosperity and democracy. Socialists do not control the Democratic Party in the way MAGA largely dominates the Republicans. But their influence is growing.

The democratic socialist agenda goes far beyond a marginal increase in economic regulation or welfare spending. It amounts to sweeping government control of the economy and society, on a scale that invites comparison to Cuba, North Korea and the old Soviet Union….

Ironically, democratic socialists have more in common with MAGA nationalists than either likely wants to admit. President Donald Trump has pursued his own version of economic central planning: ruinous tariffs, severely restrictive immigration policy and government equity stakes in Intel, U.S. Steel and roughly 30 other companies.

Tariffs and immigration restrictions are both major forms of government control over the economy. Immigration restrictions, in particular, curtail economic freedom more than any other current U.S. policy….

The rest of the article explains how both socialist and nationalist forms of government control of the economy run into problems of knowledge and incentives, and why both threaten liberty and democracy. I also explain why adherents of these ideologies cannot paper over their flaws by claiming they favor democratic versions of them, rather than authoritarian ones:

Today's socialists say they will avoid this fate because they champion "democratic" socialism, not the authoritarian kind. But near-total state control of the economy has never coexisted with democracy for long. A government that controls the economy can starve opposition parties of resources and weaponize control of basic goods to crush dissent.

That's exactly what happened in Venezuela, where a democratically elected socialist government became a dictatorship.

Right-wing nationalist regimes have followed a similar path, in Germany, Italy, Spain and many Latin American nations.

Many of today's socialists even admire authoritarian socialist regimes and hope to emulate them:

• The DSA praises Cuban communist dictator Fidel Castro, who turned that country into a totalitarian state.
• Prominent socialist "influencer" Hasan Piker praised Mao – the biggest mass murderer of all time – as "one of the great leaders of this world."
• Sen. Sanders has a long history of praising communist despots.

"Postliberal" MAGA nationalists similarly often admire right-wing despots, like Spain's Francisco Franco, Portugal's Antonio Salazar and others.

Progressives and others should consider whether they trust someone like Trump to have the kind of sweeping control over the economy socialists advocate for. There is no guarantee such a person – or worse – would not come to power under socialism….

I end with this point:

If nothing else, we should heed the powerful evidence of people "voting with their feet." Almost every socialist regime in history has produced a mass exodus toward market economies, never the reverse. Venezuela's exodus is the largest refugee crisis ever recorded in the Western Hemisphere, and Cuba has had multiple waves of refugees over six decades….

If socialism worked as advertised, people would be fleeing market economies to live under it, not the other way around. Right-wing nationalist regimes have produced their own refugee outflows. Refugees from Nazi Germany and fascist Italy, for instance, helped build American science, including the Manhattan Project, which developed the atomic bomb.

I addressed some of the issues covered in the article more fully in previous writings, such as "The Case Against Nationalism" (coauthored with Alex Nowrasteh), and "Perils of Democratic Socialism." See also my recent piece on the contradictions of socialist prison abolitionism.

The post My New USA Today Article On Dangerous Similarities Between "Democratic Socialists" and MAGA Nationalists appeared first on Reason Magazine.

From the Report and Recommendation by Magistrate Judge Zachary C. Bolitho (N.D. Fla.) yesterday in Hales v. Luthmann (the same Luthmann from the Staten Island trial by combat case):

Plaintiff Jeremy Hales operates an online business that generates revenue by posting content on social media websites …. Plaintiff has over 730,000 subscribers for his "What the Hale$" channel on YouTube and over 327,000 followers for his "What the Hale$" page on Facebook.

Defendant Richard Luthmann also maintains an online presence by, among other things, posting content on a blog. In early 2025, Defendant Luthmann allegedly sent emails about Plaintiff to the Anti-Defamation League and to people who post content on YouTube. Around the same time, Defendant Luthmann also posted a video to a blog allegedly depicting Plaintiff "as Adolf Hitler by adding a Hitler mustache to Plaintiff's photograph and engaging in oral sex with a journalist." …

[Plaintiff] alleges that Defendant Luthmann violated Florida's sexual cyberharassment statute, Fla. Stat. § 784.049…. To state a violation of § 784.049, a plaintiff must plausibly allege

1. Defendant published a sexually explicit image of Plaintiff on an internet website;
2. The image contained or conveyed Plaintiff's personal identification information;
3. Defendant acted willfully and maliciously, for no legitimate purpose, and with the intent of causing substantial emotional distress to Plaintiff;
4. Plaintiff did not consent to the publication….

The dispute was about whether the video showed a "sexually explicit image," and the court said no:

[T]he statute defines {"sexually explicit image"} as any photograph or video that depicts "nudity" or depicts "any person engaging in sexual conduct." … [Plaintiff does not] plausibly allege[] that the video posted by Defendant Luthmann depicts "nudity" by Plaintiff…. Instead, the video shows Plaintiff's face superimposed on somebody else's body. The video only shows the body from the shoulders up, and the body is clothed….

An image can also be "sexually explicit" if it depicts a person engaged in "sexual conduct" [defined in relevant part to] … include[] "actual or simulated … deviate sexual intercourse." … "[D]eviate sexual intercourse" is "sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva." …

[Plaintiff] does not plausibly allege that the video posted by Defendant Luthmann depicted a person engaged in "sexual conduct." The video shows an image of Plaintiff Hales's face—with an added fake Hitler mustache—superimposed on another person's body. The video also shows an image of a woman with her mouth open.

The image of the woman then rotates before moving to the bottom of the screen such that only a portion of the woman's hair is visible. The woman's head then appears to go up and down, as the image of Plaintiff Hales bears an expression of excitement or shock.

Although the video is intended to mockingly suggest that Plaintiff Hales is receiving oral sex from the woman, the video does not show "contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva." Indeed, the video shows neither male nor female genitalia. The video, therefore, does not depict "actual" "deviate sexual intercourse."

The video also does not depict "simulated" "deviate sexual intercourse." … [T]he statutory definition of "simulated" requires two things: "[1] the explicit depiction of [sexual conduct] … which creates the appearance of such conduct and [2] which exhibits any uncovered portion of the breasts, genitals, or buttocks." The Court assumes arguendo that the video creates "the appearance" of "contact between … the mouth and the penis" … [but] the video does not "exhibit[] any uncovered portion of the breasts, genitals, or buttocks." …

Although the video Defendant Luthmann published is vulgar, offensive, and juvenile, it does not constitute sexual cyberharassment under Florida law. {This result is consistent with the idea that statutes prohibiting the depiction of "simulated" sexual conduct are typically intended to address situations where "[t]he portrayal" would "cause a reasonable viewer to believe that the actors actually engaged in" the depicted conduct. Here, the video—containing superimposed faces and clearly satirical elements—would not lead any reasonable viewer to believe that Plaintiff and the woman were actually engaging in sexual conduct in the video.}

The video itself appears to be the one at the very top of this page (which is linked to from the Third Amended Complaint, which in turn is referred to by the opinion). I've looked at it and my evaluation of it is the same as the Magistrate Judge's (including the "vulgar, offensive, and juvenile" part).

The post Florida Revenge Porn Law Doesn't Cover Simulated Sexual Conduct That's Implied Rather Than Shown appeared first on Reason Magazine.

In its summary judgment order, the district court held that Plaintiffs were entitled to relief under the Equal Protection Clause of the Fourteenth Amendment. {[T]he district court only reached Plaintiffs' claim under the Equal Protection Clause; it did not reach Plaintiffs' claims under the Due Process Clause or the First Amendment of the U.S. Constitution and Puerto Rico Constitution.}

Explaining that the Application for Gender Change gives "an option for binary applicants to choose a gender marker which aligns with their true gender, but does not provide [such] an option" for "nonbinary individuals," the district court concluded that Puerto Rico's "Birth Certificate Policy" creates a classification on its face between "people with a binary gender identity" and "nonbinary people." The district court also concluded that it did not need to decide which level of scrutiny applied to Puerto Rico's Birth Certificate Policy because it held that the Policy did not survive the lowest level of scrutiny—rational scrutiny….

Under [the]"forgiving" standard [set forth by past cases], we conclude that Puerto Rico's Birth Certificate Policy is supported by a rational basis….

Plaintiffs' argument is founded on current Puerto Rico law, which permits transgender binary people to update the gender on their birth certificates. But Puerto Rico law allows this update because it responded to the Arroyo González v. Nevares (D.P.R. 2018) holding that the policy in effect at the time violated transgender binary individuals' privacy rights.

Unlike the transgender binary plaintiffs in Arroyo González, … Plaintiffs conceded that the Birth Certificate Policy does not violate the informational privacy right that Arroyo González contemplated, recognizing that a nonbinary gender marker inherently discloses a person's nonbinary status. Plaintiffs also fail to develop a separate argument that Puerto Rico's interest in protecting privacy rights is not furthered by the Birth Certificate Policy and its challenged classification between transgender binary people and transgender nonbinary people.

Puerto Rico has a legitimate interest in protecting the privacy rights of people born in Puerto Rico, and as Plaintiffs have neither argued nor demonstrated that the Birth Certificate Policy infringes on their privacy rights or that privacy rights are not furthered by the Policy, there is a rational relationship between the challenged classification and this legitimate interest. It is thus conceivably rational for Puerto Rico to not update transgender nonbinary people's birth certificates while updating transgender binary people's birth certificates.

For the foregoing reasons, we vacate the district court's order and remand to the district court for further proceedings consistent with this opinion.

Here's more from the opinion about just how forgiving the rational basis test is:

Under the rational basis standard, government conduct "is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." The Supreme Court has recently, in U.S. v. Skrmetti (2025), established the binding standards for rational basis review in an equal protection challenge:

We have reconciled the principle of equal protection with the reality of legislative classification by holding that, "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." We generally afford such laws "wide latitude" under this rational basis review, acknowledging that "the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes."

It went on to hold:

The rational basis inquiry "employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." Under this standard, we will uphold a statutory classification so long as there is "any reasonably conceivable state of facts that could provide a rational basis for the classification." Where there exist "plausible reasons" for the relevant government action, "our inquiry is at an end."

And it explained that:

"[T]he fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration."

As we have explained, "[t]he question is not what went on in the mind of the [government] actor but whether anyone, including the judge, can conceive of a rational reason for such a classification." …

Puerto Rico Solicitor General Omar Andino-Figueroa and Deputy Solicitor General Frank A. Rosado Méndez represent Puerto Rico.

The post Puerto Rico Has Rational Basis for Allowing Only Two Genders for Birth Certificate Gender Changes appeared first on Reason Magazine.

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Last month, I wrote about Trump's new executive order seeking to deny birthright citizenship to various classes of children born on US soil, and noted the first legal challenges to it. As I pointed out then, almost every part of the new order is at odds with the Supreme Court's recent ruling in Trump v. Barbara, which struck down Trump's executive order denying birthright citizenship to children of undocumented immigrants born in the United States, and those born to non-citizen parents here on temporary visas. The Fourteenth Amendment guarantees grants citizenship to all children "born or naturalized in the United States, and subject to the jurisdiction thereof." In Barbara, the Supreme Court majority made clear that "subject to the jurisdiction thereof" includes children of all persons who are subject to and required to obey US law.

Today, in Casa, Inc. v. Trump, federal district court Judge Deborah Boardman of the District of Maryland issued a decision imposing a preliminary injunction blocking the new order. It is the first judicial ruling on Trump's new birthright citizenship executive order. As Judge Boardman put it, "[t]he 2026 Executive Order is almost certainly unconstitutional as applied to the certified class for the simple reason that the Supreme Court in Barbara already decided that the children in the class are citizens at birth." She goes on to explain why:

When the Supreme Court explained the meaning of "subject to the jurisdiction" of the United States, it distinguished between people over whom the United States has the power to govern (and who are thus subject to the jurisdiction of the United States) and people over whom the United States does not have the power to govern (and who are thus not subject to the jurisdiction of the United States). See Barbara, 146 S. Ct. at 2449– 50… . The latter category of people falls into the "narrow exceptions" to the rule of citizenship by birth that are implicated when the United States does not have the "full and complete power" to govern over people born on its land. Id. at 2450. Those "narrow exceptions" include "children of foreign ministers" and "members of 19th-century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign)." Id.

This is pretty obviously correct. As explained in my earlier post on the new executive order, that order covers four groups almost all of whose members are clearly subject to US law:

1. Children of "alien enemies," defined as those where at least one of two non-citizen parents is a "designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism)."

2. Children born to at least one non-citizen parent who is a "foreign government employee" or employed by an "international organization that possess[es] international-organization immunity."

3. Children where "either parent" has engaged in "birth tourist" transactions of various kinds (deliberately seeking to give birth in the US so the child would get birthright citizenship).

4. Children "born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute." …[T]his only applies to children born in American Samoa, the one populated overseas US territory to whose residents Congress has not conferred citizenship by statute….

As I explained more fully in the earlier post, all of the children in these four categories are obviously subject to US law, with the exception of those born to foreign diplomats who have diplomatic immunity. This latter group is already excluded from birthright citizenship. In that post, I also explained why the analogy between "alien enemies" (as defined in the order) and children of members of an invading army occupying US territory fails.

Judge Boardman's ruling also covers a number of procedural issues I will not attempt to go over here. But the bottom line is she has imposed a preliminary injunction blocking implementation of the order with respect to a previously certified class of all children born on US territory and subject to the 2025 executive order,  to parents who are unlawfully present in the US or here on temporary visas (the class was certified as part of the litigation challenging Trump's earlier birthright citizenship order).

This covers pretty much all the people potentially affected by the new birthright citizenship order and born after February 19, 2025 (when the earlier executive order took effect), except those born to legal residents of American Samoa, in category 4 above. It is not clear whether the administration will try to implement the order against children born before February 2025. As noted in Judge Boardman's opinion, "[n]owhere in the order does it indicate it does not apply to children already born." The government's lawyers claimed it would only apply to children born in the future, but these assurances may not be credible. If the administration does try to enforce the order against children born before February 2025, further litigation will be needed to stop that.

Today's ruling is probably only the beginning of the litigation over the new order. The administration is likely to appeal. But I hope and tentatively expect that appellate courts - including, potentially,  the Supreme Court - will rule much the same way. The new order is pretty obviously at odds with Trump v. Barbara - and also with the text and original meaning of the Citizenship Clause of the Fourteenth Amendment.

The post Federal Court Issues First Ruling Against Trump's New Birthright Citizenship Executive Order appeared first on Reason Magazine.

A federal judge issued a decision on Wednesday denying a request by lawyers for Entergy Arkansas to stop the use of documents released under the Freedom of Information Act (FOIA) to a Little Rock woman….

The Democrat-Gazette reported on Monday that the Entergy documents, including some marked "confidential," were released after Jessica Kivell filed her FOIA request with the Public Service Commission and shared them with the newspaper….

The filing asked that the defendants be immediately prohibited from using or disclosing the documents, since it would do "irreparable harm" by disclosing Entergy Arkansas' trade secrets.

There is no written opinion from Judge Rudofsky; but besides the general First Amendment rules against temporary restraining orders barring speech, the matter also seems to me to be governed by Florida Star v. B.J.F. (1989).

Florida Star basically says (to oversimplify slightly) that people have a First Amendment right to publish information that was disclosed by the government, even if the government erred in disclosing it. That case involved publishing the name of a rape victim that was erroneously disclosed by a police department; even though state law barred newspapers from publishing rape victims' names, the Court held that the newspaper had a First Amendment right to do so. Likewise, even if trade secret law bars newspapers from publishing information that they indirectly obtain (and I'm not sure that it does), they have the right to do so when it is obtained from the Public Service Commission, even if the Commission erred in disclosing it (again, far from clear).

Unfortunately, the motion for a temporary restraining order is sealed, so it's hard to be sure of the arguments plaintiff made. I hope the motion will be unsealed at some point soon, though.

For more on the underlying controversy, see the Monday story in the Democrat-Gazette (Sydney Sasser):

Google will pay Entergy Arkansas $526 million to build Cypress Solar, about one-third of the $1.6 billion price tag of the solar and battery facility.

That plant—a 600-megawatt solar field and 350-megawatt battery solar facility—will feed the grid from which Google's West Memphis data center will draw massive power.

Google will pay an additional $190 million to Entergy for transmission system upgrades needed to serve the project….

In an Oct. 2 news release, Entergy Arkansas said the West Memphis data center "will be bolstered by a new 600-megawatt solar project, backed by a 350-megawatt battery storage system that will be located in Jefferson County, Arkansas. Google will pay rates that cover the cost of this resource."

As I understand it, one of the questions was whether Google had promised to pay for all the costs or just the $526M (or $526M+$190M). The KARK story quotes a Google spokesperson as saying that,

"Google is fully committed to covering 100% of the power and infrastructure costs for our West Memphis data center. While upfront payments total $526 million, our ongoing monthly rates over the 20-year agreement will completely fund our operational footprint. Entergy's regulatory filings demonstrate that this project will actually lower overall system costs, providing more than $1.1 billion in net benefits to Arkansas residents."

John T. Adams (James & Carter PLLC) represents defendants.

The post No TRO Against Arkansas Democrat-Gazette as to Publishing of Data Center Plans appeared first on Reason Magazine.

Today, the Institute for Humane Studies Liberalism.Org website published my article on why private property rights deserve a central place in the liberal political tradition. It explains how property rights are essential to liberty, and why strengthening protection for them particularly benefits the poor and disadvantaged. Here is an excerpt:

The post My New Liberalism.Org Article on the Centrality of Private Property Rights to Liberalism appeared first on Reason Magazine.

Aleman-Lozano is a native and citizen of El Salvador. He entered the United States unlawfully but, in 2017, was granted a nonimmigrant temporary visa with work authorization. Since entering the United States, he has resided with his family, attended school, and worked in Washington, D.C.

In September 2021, a Pennsylvania state trooper pulled Aleman-Lozano over for a traffic violation …. During the stop, the trooper saw a rifle cartridge on the passenger seat. As a result, the trooper obtained a search warrant and found a pistol containing a loaded sixteen-round magazine, which Aleman-Lozano told police he had purchased from an unidentified individual in Maryland. The pistol did not have a serial number….

Aleman-Lozano was prosecuted under 18 U.S.C. § 922(g)(5)(B), which generally makes it illegal for aliens present under a nonimmigrant visa (with some exceptions) to possess guns, and brought a facial challenge to the constitutionality of the provision. Judges Shwartz and McKee assumed without deciding that "the people" in the Second Amendment included noncitizens who were lawfully present, but concluded that "there is historical support for the challenged restriction" based on "analogues from before and at the time of the Second Amendment's ratification":

English common law distinguished between "aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the … allegiance of the king; and aliens, such as are born out of it." Under the common law, "natural-born subjects [had] a great variety of rights, which they acquire[d] by being born within the king's ligeance," while the rights of "aliens … [were] much more circumscribed, being acquired only by residence here, and lost whenever they remove[d]." For example, "aliens" could not hold land, and "land and gun ownership were historically linked." "[T]he right to own guns in eighteenth-century England was statutorily restricted to the landed gentry." An alien could own land if he became naturalized by swearing allegiance to the sovereign before Parliament, which "placed [him] in almost 'exactly the same state as if he had been born in the' dominions of the Crown." The English Bill of Rights also limited gun ownership to those loyal to the Crown. It "guarantee[d] that 'Protestants … may have Arms for their Defence suitable to their Conditions, and as allowed by Law.'"

Before the American Revolution, some "colonial governments prohibited any white person unwilling to affirm his allegiance to the British Crown from collecting firearms." For example, Georgia disarmed indentured Acadians, a "group of French settlers and ancestors to the Cajuns, [who] 'refused to be loyal subjects of the British government' during the French and Indian War." The disarmament of Acadians "was based solely on loyalty concerns."

After the American Revolution began, the states disarmed British loyalists because of their allegiance to the English monarch and not to the American cause. The Continental Congress called upon the States "immediately to cause all persons to be disarmed … who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies, against the hostile attempts of the British fleets and armies." The states answered the call and disarmed those who refused to swear allegiance to the state and/or to the American cause. Thus, from English common law through the Revolutionary period around the time of ratification, there was a historical tradition of disarming those considered disloyal to the sovereign….

With this history in mind, we conclude that why and how § 922(g)(5)(B) restricts firearms possession is "consistent with the principles that underpin our regulatory tradition" because it addresses the same allegiance concern as the historical laws and does so in the same way.

As to why the restriction exists, "[a]llegiance serves as a mark of trustworthiness," and it "shows one's willingness to accede to the terms of social order in exchange for the full benefits of citizenship. [Noncitizens], as a matter of their status, have not yet affirmed their allegiance to the sovereign. That has uniformly served as the basis for disarming them." Section 922(g)(5)(B) disarms noncitizens who bear a "presumptive allegiance to a foreign state," and not to the United States, and thus addresses the same problem as the historical laws.

As to the "how" inquiry, the historical laws and § 922(g)(5)(B) burden the right in the same way. Historically, governments disarmed individuals "unless and until they swore an oath of allegiance to the sovereign." An individual could obtain the right to bear arms after swearing an oath of allegiance. Today § 922(g)(5)(B) "disarms persons unwilling or unable to swear the oath of allegiance and loyalty to the United States." Noncitizens disarmed under § 922(g)(5)(B) who follow the path prescribed by Congress and undergo the naturalization process, which culminates in taking the oath of renunciation and allegiance "as a demonstration of trustworthiness," gain the right to bear arms. Section 922(g)(5)(B) addresses the same loyalty concern as the historical laws and does so in the same way.

Judge Peter Phipps concurred in the judgment:

The Majority Opinion makes a needless assumption, the breadth of which is staggering, viz., that all nonimmigrant visa holders are part of "the people" and therefore have full Second Amendment rights. A nonimmigrant is a foreign national with a permanent residence abroad who comes to the United States on a temporary basis, such as for tourism, study, business, medical treatment, or transient travel. Whatever are the precise contours of 'the people,' that term certainly does not include every such visitor….

The term 'the people' as used in the Constitution is "a term of art" with consistent meaning. As defined by the Supreme Court, 'the people' refers to "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community," with the understanding that the relevant national community is the national "political community." {[T]he Founding generation, influenced by Locke and Montesquieu, "spoke of 'the people,'" to mean "the sovereign community that consented to a legitimate government" ….} While not every contour of the national political community has been identified, adult citizens are part of the people, and excludable aliens are not. It may also be that nonimmigrants are, as a class, not part of the national political community as they are citizens of another country with permanent residences abroad, and they cannot vote in federal elections or serve on federal juries. But it is not necessary in this case to determine whether nonimmigrants, as a class, are not part of 'the people.'

Rather, Aleman-Lozano's facial challenge to § 922(g)(5)(B) will fail if one nonimmigrant visa holder is outside of the national political community. And if nothing else, receipt of one type of nonimmigrant visa—the C-1 transit visa—does not induct foreign nationals into 'the people.' A C-1 transit visa allows foreign nationals to pass through this country to reach another foreign country and has a maximum duration of stay of 29 days. The limitations on the visa—it is given to foreign nationals with permanent residence abroad who are travelling through this country transiently—prevent C-1 transit visa holders from developing a "sufficient connection" with this country to be considered part of the national political community. Consequently, C-1 transit visa holders are not part of 'the people,' and the Second Amendment does not protect their ability to keep and bear arms.

That conclusion is fatal to Aleman-Lozano's facial challenge. It is therefore unnecessary for the resolution of this case to broadly assume that each and every nonimmigrant visa holder is part of 'the people.'

Patrick J. Bannon and Carlo D. Marchioli represent the government.

The post Third Circuit Rejects Facial Challenge to Ban on Nonimmigrant Aliens' Gun Possession appeared first on Reason Magazine.

This is a skilled-nursing-home negligence case proceeding in federal court based on diversity jurisdiction …. In diversity cases proceeding under § 1332(a), Federal Rule of Civil Procedure 7.1(a)(2) requires every "party or intervenor [to]…file a disclosure statement[ ] [that] must name—and identify the citizenship of—every individual or entity whose citizenship is attributed to that party or intervenor[.]" On August 3, 2026, Defendants filed their unredacted Rule 7.1 disclosure statements provisionally under seal. In the present Motion, Defendants seek to maintain under seal the unredacted Rule 7.1 disclosure statements, which reveal various layers of the respective limited liability companies' ("LLC") memberships and the identities of those layers of members. Defendants request permission to file publicly only redacted versions of these documents, redacting "the names of non-party individuals, trusts, and limited liability companies whose disclosure would reveal the private ownership and financial associations of non-parties." Plaintiffs oppose the Motion on multiple grounds, including that granting the Motion "would convert a transparency rule into a sealing regime for any LLC that prefers anonymity."

The court noted the general right of access to court records, and concludes that there's no exception to it for the LLC disclosures; here's part of the analysis:

[F]ederal district courts have overwhelmingly rejected these types of generic confidentiality and privacy concerns as insufficient to justify sealing or otherwise restricting Rule 7.1 disclosure statements. [Long string citation omitted. -EV] Simply put, "[c]orporations and limited partnerships may offer individuals protection from liability, but they do not entitle individuals to anonymity in court proceedings." Here, all the individuals and entities listed in Defendants' Rule 7.1 disclosure statements elected to have an ownership interest in a skilled nursing facility and the company that manages the skilled nursing facility. It is not unusual or unforeseeable that these types of parties would be sued in diversity cases in federal court, triggering the requirement that these Defendants file Rule 7.1 disclosure statements. While there may be specific cases in which sealing would be appropriate, they would involve a far more specific set of facts pertaining to specific entities or individuals than what this Court has before it….

[R]ather than address these cases, which represent the overwhelming majority view, Defendants' Motion relies on a different case from this District that also involved Defendant MRC. In that case, the judge granted defendants' unopposed motion seeking leave to file redacted copies of Rule 7.1 disclosures. This is the only case Defendants cite in which a court allowed Rule 7.1 disclosures to be sealed in whole or in part. But as Plaintiffs persuasively argue, "[a]n unopposed grant carries little weight in a contested posture," such as here. The undersigned agrees with the majority view that Rule 7.1 disclosures should not be sealed in whole or in part based on generic privacy arguments that could apply to nearly any business that wishes to keep private those with an ownership interest….

The court also noted that

Rule 7.1 disclosure statements serve an important purpose. Rule 7.1 disclosures allow the judge to ascertain whether the judge has a financial interest in the party or associated parties that would require recusal. And in diversity cases like this one, "Rule 7.1 statements enable a federal court to assess its jurisdiction—jurisdiction that has been carefully delimited by Article III of the Constitution and by Congress." These are matters of public interest.

The analysis seems quite sound to me; the most valuable part for the future, though, may be the sentence that I used as the title of the post: "[A]n unopposed grant carries little weight in a contested posture." It's a corollary of the broader point that (see, e.g., Webster v. Fall (1925); Cooper Industries, Inc. v. Aviall Services, Inc.(2004)):

Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.

But it's useful to have a case to quote on the more specific point as well.

Jonathan T. Steele (The Steele Law Firm) represents plaintiff.

The post "[A]n Unopposed Grant" of Sealing "Carries Little Weight in a Contested Posture" appeared first on Reason Magazine.

From Morake v. Mwanyenyeka, decided Friday by Judge Josephine Staton (C.D. Cal.):

Plaintiff Lebohang Morake is the creator and original performer of "Nants'ingonyama bagithi Baba," the opening chant from Disney's The Lion King. Defendant Learnmore Mwanyenyeka is a comedian and content creator.

Defendant appeared on a podcast, where he asserted that "Nants'ingonyama bagithi Baba" means "Look, there's a lion. Oh my god" in the Zulu language. The podcast was posted on YouTube and went viral. Defendant has been repeating this assertion at various comedy clubs. Plaintiff maintains that Defendant's assertion is false, and that the true translation of "Nants'ingonyama bagithi Baba" is "All hail the king, we all bow in the presence of the king."

On March 16, 2026, Plaintiff filed the instant action, bringing claims for (1) misleading representation in violation of the Lanham Act, 15 U.S.C. § 1125; (2) defamation per se; (3) trade libel; and (4) tortious interference with prospective economic advantage against Defendant, for Defendant's "mischaracterization of the true meaning of 'Nants'ingonyama bagithi Baba.'"

Defendant filed an anti-SLAPP motion to strike the state law claims, arguing that the case should be promptly dismissed because it's meritless and because it's based on speech on matters of public interest. (State anti-SLAPP motions can't apply to federal claims, such as the Lanham Act claim.) Plaintiff then dropped the state claims, and refiled a First Amended Complaint (FAC):

The FAC no longer contained allegations regarding Defendant's purported mischaracterization of Plaintiff's work. Rather, the FAC focused on Defendant's enterprise and its relation to Plaintiff, including Defendant's "online storefront marketing an 'It's a Lion' line of apparel and goods derived from Plaintiff's composition." Plaintiff alleged that "Defendant's commercial use of the association between Plaintiff and his signature work is likely to cause, and has caused consumers to be confused as to whether Plaintiff is affiliated with … Defendant's merchandise, performances, and content." Plaintiff brought claims for (1) false association/false endorsement in violation of the Lanham Act, 15 U.S.C. § 1125, and (2) false advertising in violation of the Lanham Act.

The court concluded that defendant had prevailed on the anti-SLAPP motion, though no hearing took place:

Here, Defendant's Anti-SLAPP Motion targeted the state law claims in Plaintiff's complaint, arguing that they are barred by the First Amendment. Rather than opposing the Anti-SLAPP Motion, Plaintiff filed a FAC, which dropped all Plaintiff's state law claims and asserted only two federal law claims. Plaintiff's FAC no longer focused on Defendant's "false statements of fact," but instead alleged that Defendant uses "public association with Plaintiff to attract consumers and drive sales."

It thus appears to the Court that Defendant's Anti-SLAPP Motion successfully prompted Plaintiff to drop his state law claims and related allegations. Although Plaintiff could contest the success of the Anti-SLAPP Motion by "show[ing] [he] actually dismissed [the state law claims] because [he] had substantially achieved [his] goals through a settlement or other means, because the defendant was insolvent, or for other reasons unrelated to the probability of success on the merits," he does not provide any such alternative explanations here.

Because of this, defendant was entitled to have plaintiff pay for the reasonable attorney fees incurred in filing the anti-SLAPP motion, which here amounted to $39,560.

Bryan M. Sullivan and Zachary Hansen (Early Sullivan Wright Gizer and McRae LLP) represent defendant.

The post Lion King Composer vs. Comedian Dispute Leads to ~$40K Attorney Fee Award Against Composer appeared first on Reason Magazine.

Gun bans are strong medicine. But occasionally, they are just what the doctor ordered. History teaches that governments may ban weapons when they are commonly used principally for crime. Machine guns fit that mold….

The Second Amendment is not boundless…. The Second Amendment protects weapons commonly used for self-defense and other legal purposes. Conversely, "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." This traditional principle "accords with the historical understanding of the scope of the right." To support the common-use principle, Heller relied on "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" …

Machine guns are not in common use for lawful purposes. That means they are dangerous and unusual. They are indiscriminate weapons of war and crime, not self-defense ones. And because they can cause unusual amounts of damage, they are used mostly for criminal purposes….

Machine guns are not well-suited for lawful purposes. To be sure, they are excellent weapons of war…. Modern machine guns can fire more than 1,000 rounds in one minute, killing dozens of enemies in seconds.

But the very trait that makes machine guns excellent combat weapons also makes them unsuited to self-defense. Their high rate of fire makes them inaccurate, risking collateral damage. The U.S. Army thus trains soldiers to use them only when "the need for precise fires, although desired, is not as important. Automatic or burst fires drastically decrease the probability of hit due to the rapid succession of recoil impulses and the inability of the Soldier to maintain proper sight alignment and sight picture on the target." …

To recap, at Bruen's second step, the government must prove that machine-gun restrictions fit with our Nation's regulatory tradition. It does not need a "historical twin," but only a "well-established and representative historical analogue." This means that a modern gun regulation must be "'relevantly similar' to [Founding-era gun regulations] in both why and how it burdens the Second Amendment right." So we look to "the principles underlying the Second Amendment" and "our regulatory tradition."

But we do not write on a blank slate. The Supreme Court has already done the work of distilling the key principle from history, noting "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Thus, rather than overruling its precedent in U.S. v. Miller (1939), Heller confirmed it "to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes."

Machine guns are commonly used for crime or war, not for lawful civilian purposes. As noted, criminals loved the Tommygun. But law-abiding citizens hated it. Regulators took note. Between 1925 and 1934, at least twenty-nine states, plus Congress (for the District of Columbia), banned possession of machine guns. (We note these laws not as evidence of a tradition of banning automatic weapons, since "the primary time period for the analogical inquiry is the Founding era," but rather to show the rapid consensus that these new weapons were, and are, dangerous.)

In short, weapons that were particularly dangerous to others and commonly associated only with crime could be outlawed. The machine gun fits into that small category. Plus, the Supreme Court has treated owning machine guns as more suspect than owning semi-automatic weapons….

The court also upheld the requirement that silencers be registered:

In Bruen [as in Heller], the Supreme Court … distinguished infringements from making gun buyers or sellers jump through minimal, generally applicable, objective hoops. "To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of … 'shall-issue' licensing regimes," including required "background check[s] or … firearms safety course[s]," which "do not necessarily prevent 'law-abiding, responsible citizens' from exercising their Second Amendment right." Such licensing regimes, which contain only "narrow, objective, and definite standards," are presumptively constitutional, though they may be challenged if "lengthy wait times … or exorbitant fees deny ordinary citizens their right to public carry." In short, the Court has repeatedly endorsed shall-issue permitting rules.

The best way to understand the Court's presumptive endorsement of these rules is at Bruen's step one, as a reading of the Second Amendment's text…. A regulation "infringe[s]" the Second Amendment right only if it destroys or illegitimately restricts the right. See Daniel D. Slate, Infringed, 3 J. Am. Const. Hist. 381, 396–441 (2025) (canvassing legal and political usage from the Magna Carta through the early nineteenth century). One can infringe a right by "violat[ing]," "break[ing]," "destroy[ing]," "hinder[ing]," "intrud[ing], or invad[ing]" it. 1 Samuel Johnson, Infringe, in A Dictionary of the English Language (4th ed. 1773); Daniel Bellamy, Infringe, in A New, Complete, and Universal English Dictionary (4th ed. 1764)….

Early American case law tracks this distinction between infringements and incidental burdens. For instance, Kentucky's highest court explained that even though citizens retain their natural "right of defence" under the social contract, "society may curtail this right, and no doubt does restrain its exercise in many important particulars." And the Arkansas Supreme Court held that "the right to keep and bear arms" is not infringed by some "legal control or regulation" for "the general interests of the community." True, one state court did at first "void" all laws "which diminish or impair" the right to keep and bear arms, but that "outlier decision" "was universally condemned."

In short, minimal, objective regulations that are part of the process of buying and selling guns do not infringe. They comport with the "normal … rule" allowing "incidental burden[s]" on constitutional rights. Because minimal, objective buying-and-selling regulations are not infringements, they are outside the scope of the Second Amendment.

The silencer-registration requirement imposes only an incidental burden. Registering a silencer under the National Firearms Act is an "objective and definite" process "designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens." Berger made some of the silencers at home and bought others. So he had to submit an application with his personal information, fingerprints, photograph, and description of the silencer. He had to notify the chief law enforcement officer in his area and pay a (then) $200 tax for each silencer. Berger also had to register his silencers and mark them with serial numbers.

These clear, narrow standards ensure that only law-abiding citizens own silencers. The applications "shall be denied if the making or possession of the firearm would place the person making the firearm in violation of law." They do not give the government discretion or erect real barriers to owning silencers. In sum, the Act sets up a "shall-issue" regime just like the ones Bruen blessed….

Heller's presumption of constitutionality can be overcome, but Berger has not overcome it. He offers no evidence that the Act imposes anything other than "narrow, objective, and definite standards" in a "shall-issue licensing regime[ ]." We see no evidence of "lengthy wait times" or subjective "proper-cause standards." Nor has Berger argued that the $200 tax was "exorbitant" or functionally denied him the right to buy and keep silencers. So the silencer-registration requirement is constitutional as applied….

The Second Amendment—like every other constitutional right—has limits. Machine guns are commonly used for crime, not self-defense. So they can be banned. And reasonable registration requirements are not infringements. We will thus affirm Berger's conviction and sentence.

Judge Chung took a different approach to the silencer registration requirement:

Judge Chung does not join Part III, as the government did not argue that the regulation does not "infringe" the Second Amendment, but instead argued that the regulation is consistent with history and tradition at Bruen's step-two inquiry. Before concluding that a de minimis burden on an "arm" does not suffice to satisfy Bruen's step one, Judge Chung would consider the parties' and amici's views, as she perceives some tension between this approach and the Supreme Court's rejection of means-end scrutiny and interest balancing.

Judge Chung joins in the judgment because the requirement that an owner register a silencer, an accessory, does not place "any restrictions on either the keeping (i.e., possession) or the bearing (i.e., carrying) of arms." An instrument falls within the Second Amendment's text and protection only if it "is necessary for … a gun to function as intended."

Note that Judge Bibas has written important opinions reading the Second Amendment broadly, see Frein v. Pennsylvania State Police (3d Cir. 2022), and Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Att'y Gen. (3d Cir. 2018) (dissenting), and he's joined other such opinions. But indeed the precedent (and American history and tradition more broadly) takes the view that the Second Amendment right is not unlimited, as does Judge Bibas's opinion here.

Robert A. Zauzmer and Anthony J. Carissimi represent the government.

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At the same time that Chief Justice Roberts voted to halt the construction of the East Ballroom because Congress did not authorize it, the Chief Justice's other institution voted to bypass Congress to build a new museum. I'm not sure anyone else saw the connection between these two items, but that's why you read this blog.

For decades, there has been a movement to build new Smithsonian museums on the National Mall dedicated to African Americans, Latino Americans, and Women. The African American museum was built in 2016, but it somehow forgot to mention any of Clarence Thomas's accomplishments. (If only one of Thomas's colleagues was in charge!) Alas, the Museum for Latino Americans and Women did not make much progress.

In December 2020, Congress authorized two new Smithsonian museums for Latino Americans and Women.  Congress suggested two new sites on the Mall near the Washington Monument, or the Arts and Industries Building, which is an old structure adjacent to the Smithsonian Castle. In 2022, the Smithsonian Board of Regents selected the two sites on the mall near the Washington Monument for new construction. Both of those sites would have required congressional approval.

"The Board of Regents has been committed to meeting the December deadline Congress set for the selection of sites for these important new museums," Steve Case, chairman of the Board of Regents, said in an email to The Washington Post. "Our search has narrowed to two sites on the National Mall that we believe are optimal, and appropriate. We hope Congress will now consider legislation so we can move forward, as we seek to more fully showcase our collective American journey."

The Regents eliminated the Arts and Industries building from the process:

With this step, the Board of Regents effectively eliminates what was believed to be the most likely choice for at least one of the museums: the Arts and Industries Building, which was also considered for the African American Museum and is the only site of the four selected in June under Smithsonian control. [Lonnie] Bunch said in June that the Arts and Industries Building, which was designed in 19th-century, World's Fair-era "Festival" style architecture, would have to be studied to see how it could be reimagined as a 21st-century museum.

Indeed, this building would have required digging into the ground to build a new annex:

The building resurfaced as a proposed home in 2016, when Becerra and then-Sen. Bob Menendez (D-New Jersey) introduced legislation that would have placed the museum there and added an underground annex. The historic building presented challenges for a modern museum: Its soaring ceilings and skylights were not designed for conventional exhibitions.

Fast-forward to the Trump Administration. Legislation to authorize the Woman's museum and Latino museum failed after an amendment would have limited the museum's exhibits to "biological women" and barred it from depicting "any biological male as a female." Moreover, President Trump's 2026 budget would have eliminated the Latino museum altogether.

Trump's proposed 2026 budget sought to eliminate separate funding for the stand-alone museum and instead integrate Latino programming across the Smithsonian. The proposal drew objections from Democrats as well as Republican members of the Congressional Hispanic Conference, who called eliminating the museum's funding a "disservice to the American public." A White House official said at the time there was no reason to provide construction funding because Congress had not approved a site.

What did the Smithsonian Institution do in response to these political roadblocks? They reverted to the the Arts and Industries Building for the Latino museum. Why? Well objectively this was not the best site. But because the Smithsonian already owned the property, they didn't need authorization. I don't even know if Congress will have to appropriate any funds. Presumably, the Smithsonian will solicit donations from private groups to build the museum, much like they did with the African American History museum.

Don't take my word for it. Read the Washington Post:

The decision revives a plan the Smithsonian considered but discarded years ago, a major shift for a project whose supporters have spent decades pushing for a new building on the National Mall designed specifically for the museum. It also gives the Smithsonian a path forward that does not depend on Congress approving construction on one of the undeveloped sites the institution previously selected.

The Smithsonian had chosen two sites near the Washington Monument for its two new museums — one across from the National Museum of African American History and Culture and another between the U.S. Holocaust Memorial Museum and the Tidal Basin. Both are controlled by the National Park Service and sit within the Reserve, an area of the Mall where Congress has restricted new construction.

Because the Smithsonian owns the Arts and Industries Building, the institution can decide how to use it without additional legislation.

That distinction could prove important. Building a Smithsonian museum from scratch can take a decade or longer, even after Congress authorizes it. The National Museum of African American History and Culture took more than a decade to build after its five-acre site was chosen.

Mike Gonzalez at Heritage stated the obvious: "And the only reason for that is that the Smithsonian could never win a vote in Congress to house the Latino Museum anywhere else, so it had to use a building it already owned, the AIB."

All of this should sound very familiar. You see, when Congress blocked authorization, and refused to fund the new project, the Smithsonian just found a workaround with an existing site and outside funds.

Who is the Chancellor of the Smithsonian Institution? John Roberts. On the same day that he accused President Trump of bypassing Congress to build a new structure in the Washington, D.C., his own entity bypasses Congress to build a new structure in Washington, D.C. Some chutzpah, huh?

In my essay on the cult of judicial celebrity, I urged Congress to remove the Chief Justice as the Chancellor of the Smithsonian:

As usual, change should start at the top. The Chief Justice serves as Chancellor of the Smithsonian Institution. Why? The Chief Justice lacks any formal training in research or museum management. Why would he hold this position? Chief Justice Roberts recently opined that serving as Chancellor is "the best thing about being the Chief Justice" even though he is the "one person in the room that really doesn't know . . . what's involved." The first Chief Justice to serve as Chancellor was Roger B. Taney, who took over the position after Vice President Millard Fillmore became President. Moreover, in recent times, the Smithsonian has been embroiled in controversies with President Trump. It would make sense for the Chief Justice to step out of this field and any related controversies. Indeed, Congress should modify the law that requires the Chief Justice to serve on the Smithsonian Board of Regents altogether.

Maybe Congress should go further and investigate? Maybe someone who walks past the National Mall should file a frivolous law suit to block any construction of any subterranean annex. If there is standing to see a green crocodile there should be standing to see red bricks. Judge Leon can recycle some of his exclamation points.

Alas, the Woman's Museum will have to wait. There is no other extant structure where it can be held. Remember, the 15th Amendment came well before the 19th Amendment. The Chief Justice has his priorities.

After some reflection, I think Roberts may have viewed the East Wing construction as an affront to his idealized vision of Washington, D.C. He cares profoundly of how things appear, and was willing to disregard everything he thinks about standing and national security to maintain the appearance of the mall.

I'm done talking about the ballroom--for now at least.

The post CJ Roberts and the Smithsonian Bypass Congress To Build New Latino Museum appeared first on Reason Magazine.

One of the greatest challenges with judicial selection is knowing what a lawyer actually believes. How do you know what a lawyer really believes when he is always representing a client?

For sure, lawyers at firms are largely hired guns. They'll take whatever paying client comes through the door. Indeed, whenever a lawyer takes a case, he has plausible deniability: I zealously represented my client, without regard to whether I agreed with the cause. How, then, do you know what a lawyer really believes?

You cannot give any weight to clerkships. Those who seek to clerk on the Supreme Court can often fake their politics to get through the gates--and I'm not talking about so-called counter-clerks. Brass rings are neither red nor blue. Dana Remus clerked for Justice Alito, and then served as President Biden's White House Counsel. Eric Miller clerked for Judge Silberman and Justice Thomas, and was appointed by President Trump to the Ninth Circuit, yet he consistently votes opposite the conservatives on that court. There are many more such examples.

Maybe you could see what sorts of pro bono cases a lawyer takes. But still, lawyers at firm are often nudged to take certain cases or discouraged from taking other cases. Remember that John Roberts provided pro bono assistance to the plaintiffs in Romer v. Evans. Pro bono is not always a reliable indicia of what a person believes.

Maybe you could give special credit to lawyers who take political appointments in government service. But again, not really. Government lawyers have clients, just like everyone else. Moreover, government lawyers who seek higher office will go along to get along. Amit Argawal clerked for Judge Kavanaugh and for Justice Alito, then served as Solicitor General of Florida under Attorney General Pam Bondi. When he argued Slaughter, people thought he could brandish conservative bona fides. Yeah right. Now Argawal works for Protect Democracy, a leading liberal firm that opposes President Trump.

This background brings me to (who else) John Roberts.

Way back in September 1990, when Roberts was the Principal Deputy SG, he joined Ken Starr's brief in Rust v. Sullivan which argued that "Roe was wrongly decided and should be overruled" because there's "no support in the text, structure, or history of the Constitution" for a right to an abortion. Did Roberts actually believe this? Or did he just sign it because that was the office's position. As Judge James Ho pointed out in a recent National Review essay, Roberts disavowed anything he signed as a lawyer: "I do not believe it is proper to infer a lawyer's personal views from the position taken on behalf of a client." Of course, when push came to shove, Roberts upheld Roe in Dobbs.

So I return to my principal question. When everything a lawyer does is on behalf of  client, how do we actually know what the lawyer believes? The ballroom case leads to another example.

Deputy Solicitor General John Roberts argued Lujan v. National Wildlife Federation (1990)--not to be confused with the landmark decision of Lujan v. Defenders of Wildlife (1992). Did Deputy SG Roberts personally want to narrow Article III standing? I would think so. In a 1993 article in the Duke Law Journal, Roberts favored a narrow reading of Article III standing. In Massachusetts v. EPA, Chief Justice Roberts favored a narrow reading of standing. So what does Roberts actually think about standing?

Well, in the ballroom case, he found a person who walks near Lafayette Park is sufficiently injured to stop the construction of a military facility. Roberts dismissed the national security concerns in a bogus footnote.

What exactly does Roberts believe here? Is there a difference between John Roberts the advocate and John Roberts the judge?

The post Advocate John Roberts v. Chief Justice John Roberts appeared first on Reason Magazine.

ABC is challenging the Federal Communications Commission, arguing that the agency is using its licensing authority to punish the network for its coverage and political viewpoint. Jane and I are joined by Duke law professor Stuart Benjamin to examine the lawsuit, the FCC's unusually broad "public interest" power, and the special rules that have long governed broadcast speech. We discuss allegations of retaliation and pretext, the chilling effect of costly government investigations, and whether this dispute could prompt the Supreme Court to reconsider broadcasters' second-class status under the First Amendment.

Also check out our past episodes:

• Can AI Libel You? The Robby Starbuck Case
• Shrexting: Free Speech or Criminal Harassment?
• The First Amendment and Privacy Rights
• 'Defamacast' and More: How American Defamation Law Works
• Speech, Not "Conduct": Supreme Court Rules on Conversion Talk Therapy
• Equal Time, Stephen Colbert, and the Future of Political Broadcasting
• Student Speech, Threats, and the First Amendment
• Can Journalists Be Charged for Involvement in Protests? The Don Lemon Dilemma
• 2025: The Year In Free Speech
• Does the First Amendment Protect Supposedly "Addictive" Algorithms?
• Defamation Law in the Age of AI with Lyrissa Lidsky
• Free Speech and the Future of Legal Education
• From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Eric Heinze
• Kimmel, the FCC, and the Government's Power Over Broadcast Speech
• A Conversation with FIRE's Greg Lukianoff
• A Burning First Amendment Issue: President Trump's Executive Order on Flag Desecration
• Free Speech and Doxing
• The Supreme Court Rules on Protecting Kids from Sexually Themed Speech Online
• Free Speech, Public School Students, and "There Are Only Two Genders"
• Can AI Companies Be Sued for What AI Says?
• Harvard v. Trump: Free Speech and Government Grants
• Trump's War on Big Law
• Can Non-Citizens Be Deported For Their Speech?
• Freedom of the Press, with Floyd Abrams
• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

The post Free Speech Unmuted: The Process Is The Punishment: <i>ABC v. FCC</i> with Stuart Benjamin appeared first on Reason Magazine.

Further, Defendants Koutoulas and LGBCoin LTD submitted fabricated authority across at least eight separate filings …. Plaintiffs have catalogued more than forty such instances in a spreadsheet attached to their Motion. Federal courts around the country are taking a firm stance against AI-hallucinated case citations. This is just one of Defendant Koutoulas's many sanctionable acts, including terminating sanctions.

Recall that the "Let's Go Brandon" phenomenon emerged from an NBC sports reporter hearing fans at a NASCAR race chanting "Fuck Joe Biden," and misunderstanding this as "Let's Go Brandon" (the winner of the race was named Brandon Brown).

The post What About a "'Let's Go Brandon' Was a Hallucination in the First Place" Defense? appeared first on Reason Magazine.

Last night I included a throwaway line my post about a possible Jodi Kantor reveal from this past term. It has been on my mind for some time. Where are the leaks? We are already in September.

Well, a few hours later, Kantor published an expose, but there is very little new here. In fact, it's all old stuff.

It seems after Justice Scalia passed, the other Justices agreed to restrict the publication of their papers until after each member who was involved in a case dies. The bigger reveal is that Justice Scalia made no plans for his papers:

In early 2016, Justice Antonin Scalia died suddenly of a heart attack on a Texas ranch, sending his Supreme Court colleagues into a period of grief and uncertainty. Behind closed doors, they had to contend with another piece of unsettling news.

Justice Scalia, the leading light of the conservative legal movement, had left no plans for his working papers, according to five people aware of the situation. For a Supreme Court justice, this was the equivalent of dying without a will. With no instructions for creating an archive or opening it to the public, the definitive inside account of his work — and the court's — could be lost or emerge with uncomfortable speed.

So following his death, his colleagues entered into private negotiations to try to head off any such situation in the future.

In a series of memos and conference meetings, Chief Justice John G. Roberts Jr. led the surviving justices in discussions about imposing a more uniform seal for their own papers, according to several people with knowledge of the process.

The absence of instructions from Justice Scalia and ensuing confidential conversations, which have not previously been reported, help explain why the nation's highest court can be so difficult to understand. The ultimate record of the court's work is considered the personal property of each justice, to dispose of or share as he or she chooses. And many of the justices have valued confidentiality over transparency and chosen to postpone scrutiny of their work for years to come.

I think this tells us that Justice Scalia did not think he was anywhere close to death. Certainly Scalia wouldn't leave something like this to chance.

It is also relevant that Kantor continues to mine the October 2015 Term. Her previous piece on the shadow papers came from the same term. What else does her source(s) from that term have?

The post The Biggest Revelation In Recent <i>NYT</i> Expose Is Justice Scalia Wasn't Planning on Dying appeared first on Reason Magazine.

My latest column in Civitas Outlook previews the final days of the American Bar Association. The once-great organization is entering the end game.

When the history of the American Bar Association's downfall is written, one theme will recur: it didn't have to end this way. By the 1960s, nearly half of the lawyers in the United States were members of the ABA. Congress, Presidents, and the courts consulted the ABA closely as a trusted advisor on all legal matters.  Yet, tragically, that trust was squandered when the ABA was captured by the left. Instead of serving as a trade group for lawyers, the ABA became just another left-wing advocacy group. As membership declined, the ABA could have arrested its progressive lurch, but instead accelerated in the wrong direction. The group took liberal positions on abortion, affirmative action, national security, and other controversial issues that had nothing to do with the legal profession. The ABA stopped being relevant decades ago. All that is left is a hollow husk of a once-great entity. Now, the Trump Administration is poised to strike the mortal blow by eliminating the ABA Education Council's power over law school accreditation. Things didn't have to end this way, but the ABA brought this endgame onto itself.

I also relay my own personal role in this process, which I had only partly made public before.

The post New in <i>Civitas Outlook</i>: "The End Is Near for the American Bar Association" appeared first on Reason Magazine.

A short excerpt from the longish Dole v. Connetquot Central School Dist., decided yesterday by Second Circuit Judge Alison Nathan, joined by Judges Michael Park and Maria Araújo Kahn:

Christopher Dolce, Sarah Ecke, and Shinaide McAleavey-Polley are teachers at Connetquot Central High School and "open members of the LGBTQ+ community." Connetquot Central School District officials ordered Ecke to take down two pride flags that hung on the walls of her math classroom. They also told Dolce and McAleavey-Polley that they could not place pride flag stickers on their classroom doors….

{Under Garcetti v. Ceballos (2006), and its progeny, when public employees' speech "owes its existence" to their "professional responsibilities," the Government—their employer—can control the content of that speech without implicating their First Amendment rights.} … [A] public high school teacher's classroom wall decorations are speech that "owes its existence" to their "professional responsibilities." After all, teachers decorate their classroom walls as part of their duty to create physical classroom spaces conducive to the curricula they are assigned to teach. Those decorations are thus the Government's speech, and the First Amendment does not apply to them….

To be sure, the Garcetti Court reserved for another day whether the public-employee speech doctrine "would apply in the same manner to a case involving speech related to scholarship or teaching." That carveout resulted from concerns that applying Garcetti's "official duties" rule in cases involving public university professors would "exil[e] all public-university faculty scholarship and instruction from the shelter of the First Amendment."

But public university professors "are paid … to speak, and to speak freely, guided by their own professional expertise" in ways that public school teachers are not. As a result, when this Court declined to apply Garcetti to a public university professor's "teaching and academic writing," we left open whether Garcetti might nevertheless apply to a public school teacher's curricular speech. Like many of our sister circuits, we now conclude that it does.

The District, for its part, offers another First Amendment theory. It insists that "speech in the traditional classroom to a captive audience during … instructional time is speech that a reasonable person would perceive to be school-sponsored[.]" … [But t]he problem is not that the students in Ecke's math classroom are a "captive audience" to her messages, or that her speech took place in a classroom. Otherwise, anything a teacher says or does in view of her students might be placed beyond the ambit of the First Amendment—an application of Garcetti that the Supreme Court rejected in Kennedy v. Bremerton School Dist. (2022). For example, just as Kennedy made clear that a school district may not use Garcetti to "fire a Muslim teacher for wearing a headscarf in the classroom," Garcetti may not "transform" something like a progress pride flag pin on a teacher's blazer or a picture of their same-sex spouse "into government speech" simply because the teacher wears that pin or displays that photo in their classroom.

But here, Ecke, Dolce, and McAleavey-Polley's particular speech at issue—the displays covering the walls and doors of their classrooms—is speech that they are "expected to deliver in the course of carrying out" their jobs. And that speech thus falls directly into Garcetti's heartland—whether or not they had a "captive audience" when making it….

Rondiene E. Novitz and Julissa M. Proana (Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP) represent defendants. Moran.

The post School Can Control What Flags Schoolteachers Hang on Classroom Walls appeared first on Reason Magazine.

From MacDonald v. President of N.J. State Bd. of Med. Examiners, decided yesterday by Judge Thomas Hardiman, joined by Justice Thomas Ambro:

New Jersey requires any doctor who wishes to practice telemedicine with a patient located in the state to first obtain a license from its Board of Medical Examiners….

Shannon MacDonald, M.D., is a radiation oncologist at Massachusetts General Hospital who specializes in treating rare pediatric cancers. She lives in Massachusetts and is licensed to practice medicine there. Dr. MacDonald used proton therapy to treat her patient J.A. for a rare childhood cancer when he was 18 months old. J.A. requires annual scans to monitor for anomalies, as the cancer often recurs. An anomaly was detected previously when J.A. lived in New York, and Dr. MacDonald was able to provide a telemedicine consultation to address the matter. J.A. is now a teenager living in New Jersey. He and his father, Michael Abell, would like to consult virtually with Dr. MacDonald in the future if any new anomalies appear on his annual scans.

Paul Gardner, M.D., is a neurosurgeon at the University of Pittsburgh Medical Center and an expert in skull base surgery. He lives in Pennsylvania and is licensed there. He too would like to speak with his patients located in New Jersey to "discuss treatment options" without requiring them to incur travel expenses. Hank Jennings is a New Jersey resident who underwent surgery and treatment by specialists in Pittsburgh when he was nineteen. Like J.A., Jennings needs periodic follow-up consultations and would like to do them via telemedicine to mitigate financial and time burdens….

The court concluded that the law was a content-based speech restriction, citing the Supreme Court's decision earlier this year in Chiles v. Salazar (which struck down the Colorado ban on conversion therapy, as applied to therapy that consists entirely of speech). But it concluded that such laws nonetheless didn't have to pass the "strict scrutiny" usually required for such content-based speech restrictions, because they were "consistent with a long and robust regulatory tradition" of professional licensing:

Our determination that New Jersey's law is content-based is not the end of the story, however. The Supreme Court has consistently instructed that "a long (if heretofore unrecognized) tradition" of a particular kind of speech restriction can show that the traditionally restricted speech warrants "diminished" protection.

For example, the First Amendment permits wholesale proscriptions of certain "exceptional categories" of speech that "share a long and well-recognized historical pedigree" like fraud and defamation. And even when those categories aren't implicated, evidence of a long tradition of a particular kind of speech regulation might tell a court to relax its guard when evaluating First Amendment challenges to similar regulations.

The Supreme Court's recent opinion in Vidal v. Elster is particularly instructive. There, the Court reasoned that the long history of trademark law—an "inherently content-based" endeavor—showed that it could "play well with the First Amendment." Specifically, the Court upheld the Lanham Act's prohibition on including a person's name in a trademark without the subject's permission—a content-based restriction on speech…. [F]rom the time trademark law developed in earnest, the Court explained, it has been little cause for First Amendment concern, and that "longstanding, harmonious relationship suggest[ed] that heightened scrutiny need not always apply" to content-based trademark rules. The Court concluded its analysis by canvassing authorities from the late 19th and early 20th centuries showing that trademark law has traditionally restricted the ability to trademark names….

Against this backdrop, we consider the history and tradition of medical licensing. Medical-licensing laws have a lengthy pedigree in the Anglo-American legal tradition, appearing in England at least as early as 1518. That year, Henry VIII granted the Royal College of Physicians a charter to license those qualified to practice "physick" in London and to prosecute those who practiced without a license. An Act of England's Parliament confirmed the charter a few years later. The practice of physicians in England at that time consisted almost exclusively of speech with specified content: "[a]s gentlemen," they "declined to work with their hands and only observed, speculated, and prescribed." Manual tasks were left to surgeons and apothecaries. So prohibiting the unlicensed practice of "physick" was a content-based regulation of speech.

Two American colonies—New York and New Jersey—also passed medical licensing laws before the revolution. That was notable given the nascent state of medical practice and education on this side of the Atlantic. The pace of medical licensing picked up shortly after the founding, and by the 1830s nearly all the states in the Union required a license to practice. Under these laws, one could practice medicine only after demonstrating competency by passing an exam or obtaining a qualifying degree.

Like their English precursors, the early American laws regulating medical practice restricted speech. After all, medicine at the time was heavily speech-based. For example, diagnoses were often reached only by drawing inferences from a patient's medical history rather than by physical examination….

To be sure, these early English and American laws did not represent enduring consensus on medical licensure. In London, the scope of the Royal College's authority was narrowed by exemptions from licensing for domestic practitioners, and apothecaries infringed physicians' monopoly on medical advice with impunity. In the United States, the founding-era licensing laws were often weak on their own terms, merely prohibiting unlicensed practitioners from suing to recover payment. Unlicensed practitioners could circumvent that restriction by demanding payment up front. And even the laws that provided for substantial punishment like fines or imprisonment were rarely enforced. Most American licensing laws were then repealed altogether during the Jacksonian era.).

This temporary swing in momentum was probably attributable to various factors. For one, the practice of medicine was so inadequate (and often harmful) that the American people were perhaps reluctant to authorize states to declare who could practice. For another, medicine was still viewed by many as more like religion than science, so religious-freedom sentiment often colored debates about licensing. Licensure requirements in general also were inconsistent with the prevailing egalitarian attitudes of the Jacksonian era. Finally, most Americans could not afford professional medical services, and the nature of travel presented serious impediments, so domestic practitioners were often the only realistic option.

As medical science and economic conditions improved and prevailing political attitudes shifted, however, proponents of licensing regained momentum. Licensing laws reemerged even before the Civil War—as early as 1859. The pace picked up after the war: by 1890, 35 states had passed medical-licensing laws. By 1898, all had done so….

Throughout our history, providing advice has remained a core part of medical practice, and licensing schemes have continued to cover it. The upshot is this: for well over a century, the States have uniformly required a license to practice medicine, including when that practice takes the form of speech, and those licensure laws have always been content-based speech restrictions….

The court then held the law would be upheld under intermediate scrutiny, partly because it was pretty easy for doctors licensed in other states to get cross-licensed in New Jersey:

New Jersey's telemedicine law is a viewpoint-neutral, content-based speech restriction consistent with the "long (if heretofore unrecognized) tradition" of state medical-licensing restrictions just described. Chiles. No precedent establishes the mode of scrutiny for such cases….

[T]he history and nature of medical-licensing laws convince us that strict scrutiny is inapt.

For starters, we see no reason to conclude that the original public meaning of the Free Speech Clause requires the most demanding scrutiny for medical-licensing laws. History shows that medical licensure predates the founding and has always been a content-based endeavor. To be sure, the founding generation was undecided on the wisdom and permissibility of those laws—widely enacting but rarely enforcing them. But that suggests, at worst, indeterminacy of original meaning. So we turn to the robust tradition that has now existed for well over a century, which strongly suggests that medical licensure can coexist with the Free Speech Clause.

Moreover, traditional medical-licensing laws do little to undermine the First Amendment values that precedent tells us to safeguard. Licensure laws do not "prescribe what shall be orthodox," because they make no viewpoint distinctions, and among licensed doctors the laws do not even make content distinctions. And by limiting their restrictions only to speech falling within the bounds of medical practice, licensing laws do not exclude the unlicensed from the public marketplace of ideas. The unlicensed may still participate in national conversations about medicine even if they cannot convey medical advice or diagnoses to individual patients.

On the other end of the spectrum from strict scrutiny is rational-basis review—"the minimum constitutional standard that all legislation must satisfy." That standard applies to viewpoint-neutral laws that restrict wholly proscribable categories of speech like obscenity. It is unclear whether it also applies in cases involving speech that has traditionally been subject to lesser restrictions than total proscription.

In between strict scrutiny and rational-basis review is intermediate scrutiny, which asks whether the law "further[s] an important Government interest unrelated to the suppression of free expression and do[es] not burden substantially more speech than necessary to further that interest." We need not decide which of those standards is more appropriate here because New Jersey's telemedicine law survives even under intermediate scrutiny, the more demanding of the two.

Plaintiffs do not (and could not) dispute that New Jersey's interest in promoting health and safety is important, and that the state generally furthers that interest, as it traditionally has, by requiring doctors to demonstrate competence and good character before practicing medicine. Nor do they take issue with any of the substantive requirements (e.g., board certification, satisfaction of a background check) for obtaining a New Jersey license.

They instead argue that the licensure process is an undue burden on specialists who, like Drs. MacDonald and Gardner, have national practices and are already licensed in states with essentially the same substantive conditions for licensure. The doctors say New Jersey's procedures are "duplicative" of their home state's licensure process and do very little to protect patient health because they have been vetted already. Essentially, they propose that New Jersey treat their home-state licenses as licenses to give advice to and diagnose New Jersey patients.

The problem with this argument is that the burdens Drs. MacDonald and Gardner complain about are too "slight" for us to plausibly conclude that "substantially" more speech is burdened than if New Jersey simply authorized them to give advice on account of their home-state license. Plaintiffs concede in their complaint that New Jersey already "streamline[s]" the application process for out-of-state physicians like Drs. MacDonald and Gardner.

And though they complain that applying for and maintaining a license still entails some fees and administrative tasks, nothing in their complaint suggests that those add substantially to the burdens that Drs. MacDonald and Gardner concededly must assume to maintain their home-state licenses. They do not contend that the fees are remotely prohibitive. They do not explain how tasks like "[m]onitoring renewal dates" create anything more than a de minimis burden. And their oblique reference to "continuing education requirements" tells us nothing about the burdens New Jersey imposes beyond those imposed by their home states.

Plaintiffs have plausibly pleaded only that Dr. MacDonald and Dr. Gardner desire not to assume additional burdens, and that is not enough for us to conclude that the burdens are substantial. Because Plaintiffs' suggested alternatives are not substantially less burdensome on speech, New Jersey's policy survives intermediate scrutiny….

This reasoning left open the possibility that laws that do make it hard for doctors to get cross-licensed would indeed be struck down under intermediate scrutiny—though it also left open the possibility that only rational basis scrutiny would apply, in which case such laws would likely be upheld.

Nathaniel F. Rubin, Matthew J. Platkin, Jeremy M. Feigenbaum, Stephen Ehrlich, Francis X. Baker, and Michael Antenucci represent defendants.

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[The Complaint] alleges that defendant's decision to discipline plaintiff {a Diplomatic Security Special Agent employed by the United States Department of State} "for carrying a licensed personal handgun in a private hotel room in an open carry state," was in violation of the Second Amendment, rendering this decision "not in accordance with law" and "contrary to constitutional right" under the [Administrative Procedure Act]. As we have previously explained to plaintiff, however, "just as a private employer engaged in security would obviously be justified in barring its employees from carrying their personal handguns on the job" without violating the Second Amendment, "so too may the Government here."

New York State Rifle & Pistol Ass'n, Inc. v. Bruen (2022) … has no application here. Defendant's decision to discipline plaintiff was merely "a restriction placed by the Government on one of its employees"—not, as in Bruen, an instance of "the Government exercising its power to regulate or license as a lawmaker."

Seems correct to me.  For more on how the normal Second Amendment rules, like the normal First and Fourth Amendment rules, generally don't apply to government employees on the job, see p. 1962 of Implementing the Right to Keep and Bear Arms After Bruen.

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Read the Chief Justice's six-page dissent in the ballroom case. Does something stand out? There is no reference to the fact that it is a dissent until page four. Virtually every dissent I've ever read indicates at the outset where the dissenting Justices depart from the majority. But the Chief Justice jumps straight into things, acting as if he was speaking for the Court. The first two pages focus entirely on the merits, an issue that the majority did not even address. Then Roberts spends another two pages talking about standing. Only halfway-through page four does he refer to "the Court." And there are no citations to specific page-ranges. Just, "the Court."

By contrast, the per curiam opinion (by Justice Kavanaugh in my mind) includes four pincites to Roberts's dissenting opinion. This clearly looks like a conventional majority opinion responding to a dissent.

Perhaps Roberts was in denial that he was in dissent--it happens so rarely. But I have another theory. I get the vibe that Roberts's dissent was an opinion written so it could easily be converted from a dissent to a controlling opinion. How easy would it be to replace "the Court" with "the dissent"? This was the Chief Justice's tango in the ballroom case.

Think about the timing. The Chief Justice did not enter an administrative stay on August 13 when the emergency application was filed. With the benefit of hindsight, we knew he was not inclined to rule for the government, so he wanted to create pressure to rule on the matter quickly.

Roberts is a fast writer. He probably wrote his six-page opinion before lunch. He probably finished it before the briefing even concluded.

Yet, on August 21, when the D.C. Circuit's stay was about to expire, the Chief Justice simply entered an administrative stay. At that point, there were squarely five votes to stay the D.C. Circuit. Why did't the Chief Justice just drop his dissent, along with the per curiam?

Ultimately, ten days elapsed from the administrative stay on August 21 until the per curiam decision was issued on August 31. There wasn't much back-and-forth between the opinions. And there was no Kafkaesque dissent from Justice Jackson.

My theory is that the Chief was trying to flip Justice Barrett's vote. We know the Chief was trying to change Barrett until the bitter end on Dobbs even after a deranged man tried to murder Justice Kavanaugh. At heart, Roberts is still an advocate, trying to get one more vote. But friends don't let friends give the Chief a fifth vote.

I am quietly dreading reporting from Jodi Kantor about behind-the-scenes action from OT 2025. Maybe the ballroom case will take a twirl.

The post Making Sense Of The Chief Justice's Tango In The Ballroom Case appeared first on Reason Magazine.

In 1958, the great Judge Learned Hand ended a series of lectures at Harvard Law School by reflecting on his professors when he was a law student there in the 1890s. It remains my favorite passage about law professors, and a vision for us in the profession to aspire to meet. Judge Hand wrote:

More years ago than I like now to remember I sat in this building and listened to — yes, more than that, was dissected by — men all but one of whom are now dead. What I got from them was not alone the Rule in Shelley's case, or what was one's duty to an invited person — as we then called him — or what law determined whether a contract has been made, or how inadequate was the common law of partnership before the advent of Cory on Accounts, or in what jurisdictions a corporation is "present." True, I did get those so far as I was able to absorb them, but I got much more. I carried away the impress of a band of devoted scholars; patient, considerate, courteous and kindly, whom nothing could daunt and nothing could bribe. The memory of those men has been with me ever since. Again and again they have helped me when the labor seemed heavy, the task seemed trivial, and the confusion seemed indecipherable. From them I learned that it is as craftsmen that we get our satisfactions and our pay. In the universe of truth they lived by the sword; they asked no quarter of absolutes and they gave none. Go ye and do likewise.

So, so good.

My understanding is that Learned Hand had taken classes from a bunch of professors who are still well known names in the law: Christopher Columbus Langdell, James Barr Ames, John Chipman Gray, James Bradley Thayer, and Samuel Williston among them.  His former professor who was still alive at the time of Hand's lecture was Williston, who died in 1963 at the age of 101.  Judge Hand himself passed in 1961, at the age of 89.

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I often write that my favorite writings by Chief Justice Roberts are when he's in dissent. These are the rare instances when I think he actually believes what he is writing. But the opposite seems true in National Park Service v. National Trust for Historic Preservation in the United States. The Court, by a 5-4 vote, stayed the injunction, thus allowing construction of the East Wing ballroom/military complex. The majority opinion was per curiam, though as I'll explain below, it is almost certainly a Kavanaugh production. Chief Justice Roberts was in dissent, joined by the Court's three liberals. Based on my quick search, this lineup appeared only one other time in NIH v. APHA.

At this point, John Roberts is utterly unrecognizable. This was the person that George W. Bush nominated to the Supreme Court because of his robust understanding of presidential power in the national security context, yet Roberts dismissed the government's national security concerns in a perfunctory footnote. This was the same justice who bitterly dissented in Massachusetts v. EPA, finding that the broad theory of standing would inject the judiciary into political disputes, but Roberts allowed a person walking past the White House to halt the construction of a military facility. This was a Justice who upheld the arrest of a D.C. tween who ate a single french fry on the metro, but extolled a D.C. busybody who walked past the metro as "deeply committed" to preserving the nation's capital.

This sentence from Justice Kavanaugh's opinion is the sort of thing that Chief Justice Roberts would mutter in his sleep:

Meanwhile, on the other side of the ledger and against these harms, the only harm the Trust claims is the offense one of its members will suffer from having to view a structure of the "scale," "height," and "massing" the government intends. Id., at 75a. These harms and equities are not nearly in equipoise.

At this point, the Chief Justice is a shadow of his former self. This was a case where Roberts determined that Trump should not win, so he did not win. In the end, all the Chief could do is wax about Winston Churchill in his dissent. Well, I have a far more appropriate quotation for the Chief's tenure: "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

I would hope to see many more Roberts dissents next term. As I wrote, "Friends don't let friends be the chief justice's fifth vote." Find a way to get to five without the Chief.

If Chief Justice Roberts is the loser here, then Justice Kavanaugh is the winner. I am fairly confident that Justice Kavanaugh wrote the majority opinion. He has become the Court's stickler for standing. I think he also wrote the jurisdictional analysis in Trump v. California.

And as I predicted, the Court rejected the D.C. Circuit's "aesthetic" injury precedents. Justice Kavanaugh leads off with the critical line:

This Court has not found standing in circumstances like these before. To the contrary, we have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.

Even if the D.C. Circuit found standing, the Supreme Court did not. I suspect that Justice Kavanaugh labored under the D.C. Circuit's terrible standing decisions for about two decades. He has now scaled them back. I hope the D.C. Circuit takes this ruling to heart, and realizes that offended observers do not state an Article III injury. Indeed, this ruling should spill over to the Establishment Clause context, as well as Havens Realty standing. People who object to a Ten Commandments display have nothing more than "offense, disagreement, or distaste."

More generally, there is something satisfying about this ruling in light of Alliance for Hippocratic Medicine. Those opposing abortion were denied "aesthetic" injury standing to see babies born. It only follows that architecture wonks likewise lack "aesthetic" injury standing to see buildings. Whatever the rules are, they should be applied equally.

I consider Justice Barrett to be the leading proceduralist on the Court. Again, she found that no one had standing in Murthy, Alliance for Hippocratic Medicine, California v. Texas, and every other case Texas brought to the Court. Barrett clerked for Justice Scalia, so likely has thought about Lujan more than anyone else on the bench. If she thinks Justice Kavanaugh has the better reading of Lujan, then I'm with Barrett. This is the key sentence:

Proceeding to reject the plaintiffs' claim to standing, Lujan stressed that a cognizable interest is a necessary component of standing but not a sufficient one: Article III "requires more than an injury to a cognizable interest." 504 U. S., at 563 (internal quotation marks omitted).

At bottom, the D.C. Circuit extended Lujan in improper ways, and the Supreme Court has now yelled "stop it."

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